High Court hears two separate applications to challenge abortion referendum result

By Ann O'Loughlin

The president of the High Court has begun hearing two separate applications for permission to bring petitions challenging the Yes result of last month’s abortion referendum.

Charles Byrne, one of the applicants, claims certain public statements made by Taoiseach Leo Varadkar and Minister for Health Simon Harris concerning the referendum misled and misinformed voters and questioned the credibility of those opposed to a repeal of the Eighth Amendment.

Such statements included one by the Taoiseach to the effect the only way to permit abortion for life-limiting conditions was by repealing the amendment, counsel for Mr Byrne said.

When Mr Justice Peter Kelly asked was counsel arguing that the government, having proposed repeal of the amendment, had to remain “mute, counsel said they were not entitled to advocate against the right to life of the unborn as provided for in the Eighth Amendment.

Mr Byrne also claims the Referendum Commission was obliged but failed to fully and properly explain in “ordinary language” the legal impact of a Yes vote and that it would remove “all constitutional protection” from the unborn.

Mr Justice Kelly is hearing applications by Mr Byrne, a piano teacher and musician from College Rise, Drogheda, Co Louth and Joanna Jordan, a homemaker, from Upper Glenageary Road, Dun Laoghaire.

A third application to bring a petition had been initiated by Ciarán Tracey, a retired public servant from Leitrim village, but he confirmed today he is withdrawing that. Noting Mr Tracey and the State had reached agreement concerning costs, Mr Justice Kelly struck out the application.

Another Co Leitrim man, Diarmaid McConville, from Dromahair, then asked to be substituted for Mr Tracey in his application. Mr Tracey said Mr McConville was among his supporters, he had no objection to the proposed substitution but his own application was to withdraw his petition.

Mr Justice Kelly said there is no procedure for permitting such a substitution and refused it.

Mr McConville said he intended to appeal the refusal to the Supreme Court. An unidentified woman then sought to intervene, saying she was anxious a petition be brought on similar grounds as those raised by Mr Tracey, the alleged failure of the Commission to refer to a particular European Court of Human Rights case in its guide.

Having reiterated there was no procedure to permit the substitution sought, the judge began hearing the two other applications.

The Referendum Act requires, before any petition can be brought, an intended petitioner must show prima facie evidence of matters likely to "materially" affect the referendum outcome.

On May 25th, 1,429,981 people voted to repeal the Eighth amendment while 723,632 voted against, a majority of 706,349 in favour.

Among his claims, Mr Byrne contends that persons were excluded from the register; that two polling cards were issued to the same person; that persons permanently living abroad voted when, he claims, they were not entitled to do so and excess numbers of people were registered.

He also says volunteer tallies suggested turnout figures in some locations of more than 100%.

Today, counsel for Mr Byrne argued the Referendum Commission was obliged but failed to convey the nature and breadth of the proposal on which the electorate was voting and failed to address the “far reaching” nature of proposed legislation for termination of pregnancy.

He was not suggesting any mal fides by the Commission, he stressed.

The Commission is a publicly funded body obliged to present accurate information in an independent and neutral way, he said. The fact its guide was sent to every home in the State underlined the gravity of the problem, particularly as its guide was described as the “independent” guide to the referendum.

The courts had made clear the only constitutional protection for the unborn was in the Eighth amendment but that was not conveyed by the Commission, he argued.

The hearing is continuing.

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