By Ann O'Loughlin
The president of the High Court will rule later on two separate applications for permission to bring petitions challenging the Yes result of the abortion referendum.
Mr Justice Peter Kelly today concluded hearing the application for permission brought by Joanna Jordan, a homemaker, of Upper Glenageary Road, Dun Laoghaire.
Her application was heard following the conclusion on Thursday of one brought by Charles Byrne, a piano teacher and musician, of College Rise, Drogheda, Co Louth.
Before a petition can be brought, the Referendum Act requires the court must find the intended petitioner has prima facie evidence of matters likely to have a “material effect” on the referendum as a whole. The State argues neither Mr Byrne nor Ms Jordan have met those criteria.
Both intended petitioners have alleged irregularities in the conduct of the referendum and registration of voters and have also complained about statements made by Taoiseach Leo Varadkar and Minister for Health Simon Harris during the referendum campaign.
Mr Byrne has also alleged the Referendum Commission failed to meet its statutory obligations in relation to providing fair and accurate information in its guide and website.
The Commission has denied those claims.
In closing submissions today opposing Ms Jordan’s application, Frank Callanan SC, for the State, said an intended petitioner must meet a high standard for leave, they must show what they complain about “materially” affected the outcome of the referendum.
To reach such a standard, one would expect some expert evidence but none was provided by Ms Jordan, he said. The “arrowhead” of her application concerned statements by Minister Harris but she could not show those had materially affected the referendum as a whole.
Ms Jordan had not even got to the point of showing any “actual abuse” of electoral law or a violation of the McKenna principles, preventing a government spending public funds on advocating for a particular side in a referendum, he said. Affidavits stating that people made certain complaints to her did not amount to evidence.
While Ms Jordan relied in this application on a number of key Supreme Court judgments, including the McKenna judgments, none of those prevent government ministers campaigning for either side in the ordinary way in a referendum, he said.
The prohibition was they could not use public monies to do so and the McKenna judgments could not be read as intending to have a “freezing effect” on policy or legislation.
In his closing reply, Killian McMorrow, for Ms Jordan, said an intended petitioner is not required to show the irregularity they complain of would have altered the result. It was adequate to establish doubt about the outcome, he argued.
While he was instructed there would be expert evidence called by Ms Jordan if she got leave for a petition, they were not required to produce such evidence, he submitted.
The State had labelled his side’s evidence as “disparate and random” but there is a structure to what was exhibited concerning the Minister for Health’s role, he said. That included the Minister having appeared with medical personnel at Yes events and having discussed Department of Health matters at such events. The Minister had a parallel and continuous role during the campaign and at events and had himself said: “I threw everything I had at it.”
Eight days before the May 25th vote, the Minister had called on resources of his Department to assist yes campaign arguments that abortion would be rare, legal and safe, counsel said. This was in “direct response” to arguments by the No campaign a vote for repeal would lead to very significant numbers of abortions.
Mr Harris did not appear as a Fine Gael politician in the campaign but rather appeared as “Simon Harris, Minister for Health”, he said. There was “very little” campaigning by Fine Gael , he added.