By Ann O'Loughlin
A man seeking leave to challenge the result of the abortion referendum has claimed the Taoiseach and Minister for Health had made “misleading” statements which “duped” some people into voting Yes and “materially affected” the outcome.
Charles Byrne claims Taoiseach Leo Varadkar and Minister for Health Simon Harris were not permitted under the Constitution to advocate for a Yes vote and made statements which impermissibly interfered with the conduct of the referendum.
The Constitution did not permit the government to advocate against the right to life of the unborn in the Eighth amendment, Geoffrey Sumner BL, for Mr Byrne, told the president of the High Court.
When Mr Justice Peter Kelly asked was counsel arguing that the government, having proposed repeal, had to remain “mute", counsel said they were not entitled to advocate against the right to life of the unborn.
Certain statements by both politicians misled and misinformed voters and questioned the credibility of those opposed to repeal, Mr Sumner argued. That included a statement by the Taoiseach to the effect the only way to permit abortion for life-limiting conditions was by repeal, he said.
Counsel also argued the Referendum Commission was obliged, but had failed, to fully and properly explain in “ordinary language” the “far-reaching” legal impact of a Yes vote.
He was not suggesting any bad faith by the Commission but rather it had not met its statutory obligations and its obligations to act in line with the McKenna principles for referendum campaigns, he said.
Mr Justice Kelly is hearing an application by Mr Byrne, a piano teacher and musician from College Rise, Drogheda, Co Louth, for leave to bring a petition challenging the referendum outcome.
The hearing continues tomorrow.
A separate application by Joanna Jordan, a homemaker, from Upper Glenageary Road, Dun Laoghaire, will be heard after Mr Byrne’s application concludes.
The Referendum Act requires, before a 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. 723,632 voted against.
Mr Byrne contends he has evidence of irregularities in the conduct of the referendum entitling him to leave to bring a petition. He claims persons were excluded from the register; two polling cards were issued to the same person; persons permanently living abroad voted when, he claims, they were not entitled to do so and that excess numbers of people, up to 500,000, were registered.
Kenneth Fogarty SC, also for Mr Byrne, said they had some evidence of “worrying irregularities” and "electoral fraud" in the conduct of the referendum, had photos of student voters in UCD and would call evidence of “precisely what went on there”.
His side needed more time to assemble such evidence and the court should take into account a citizen seeking to assemble evidence to dispute a referendum result has considerably less resources than the State, he said.
This was a referendum about “life and death changes” and information affecting the integrity of the electoral process should be made available by the State, he argued.
The State maintains Mr Byrne has not produced any prima facie evidence to support his claims and Frank Callanan SC, for the State, and Eoin McCullough SC, for the Referendum Commission, opposed any more time being granted.
Mr Callanan said there was no onus on the State to assist Mr Byrne in assembling evidence and the people are entitled to certainty about the referendum result.
Mr Justice Kelly will rule on Wednesday whether to grant Mr Byrne more time as sought.
A third application for leave to bring a petition which was initiated by Ciarán Tracey, a retired public servant from Leitrim village, was withdrawn today on terms including agreement by the State parties not to pursue him for legal costs.
The judge refused an application by another Co Leitrim man, Diarmaid McConville, from Dromahair, to be substituted for Mr Tracey in his application after finding there was no procedure for permitting such a substitution. Mr McConville has said he intended to appeal the refusal to the Supreme Court.