High Court: Challenges to the abortion referendum result are refused leave

About this case:

• Citation:
  [2018] IEHC 437
• Judgment:
  External link
• Court:
  High Court

Background

Mr Charles Byrne sought leave from the Court to present a referendum petition pursuant to s.42 of the Referendum Act 1994. If granted leave, Mr Byrne intended to seek an order directing that the referendum should be taken again.  

Section 43 of the Referendum Act 1994 provides that a referendum petition may question a provisional referendum certificate on the grounds that the result of the referendum as a whole was affected materially by:

• (a) the commission of an offence referred to in Part XXII of the Electoral Act 1992 (as applied by section 6), 
• (b) obstruction of or interference with or other hindrance to the conduct of the referendum,
• (c) failure to complete or otherwise conduct the referendum in accordance with this Act, or
• (d) mistake or other irregularity in the conduct of the referendum or in the particulars stated in the provisional referendum certificate.

Considering the dicta of Chief Justice Denham, Justice O’Donnell, and Justice MacMenamin in Jordan v Minister for Children and Youth Affairs [2015] 4 IR 232; President Kelly said that he had to conduct an exercise in which ‘although only prima facie evidence’ was required before leave could be granted, ‘a higher threshold’ had to be achieved than that on an application for judicial review, and the exercise had to be ‘one of rigorous assessment’.

Complaints against the Referendum Commission

Mr Byrne complained that the Referendum Commission’s information booklet ‘failed to correctly convey to the electorate the nature and breadth of the proposal’ on which they were voting – particularly the legal effect in ordinary language of a Yes vote.

Mr Byrne complained that the Commission’s pamphlet failed to explain to the voter that approval of the referendum proposal would bring about the loss of the right to life of the unborn, and that this was misleading because it did not mention the main effect of the referendum proposal. Mr Byrne’s complaint was directed at page 6 of the pamphlet which set out the legal effect of a Yes or No vote.

However, President Kelly pointed out that the information provided on pages 4 and 5 of the pamphlet explained that Article 40.3.3 says that ‘the unborn has a right to life’, and the Supreme Court held that this is the ‘only constitutional right of the unborn’.

President Kelly was satisfied that, looking at the pamphlet as a whole, any reasonable reader ‘could not but come to the conclusion that if the referendum proposal was approved it would result in the right to life of the unborn being removed from the Constitution’. As such, President Kelly found that Mr Byrne had not adduced prima facie evidence of an unlawful interference in the conduct of the referendum.

My Byrne’s second complaint was in reference to page 3 of the pamphlet, which included the statement: “Laws are made by the Oireachtas. You are not being asked in this referendum to vote on any particular law relating to the termination of pregnancy.” President Kelly was satisfied that this statement was completely correct, and rejected Mr Byrne’s submissions that the Commission should have referred to the legislation proposed by the government or used the term ‘abortion’ rather than ‘termination of pregnancy’.

Mr Byrne also complained about the website operated by the Commission, which provided greater detail than the ‘entirely accurate information given in the pamphlet’. Mr Byrne directed his complaint to a statement on the website which he said might infer that the text of Article 40.3.3 was incompatible with the European Convention on Human Rights – and that the Commission should have referred to ABC v Ireland [2010] ECHR 2032 to clarify that this was not the case. However, President Kelly rejected this argument and said that it would have been necessary for the Commission to provide significant detail on this nuanced case, that this would have turned the website into a specialist law text repelling the average reader, and that this would have been inconsistent with the statutory obligation of the Commission to give a general explanation.

President Kelly was satisfied that My Byrne had failed to put forward prima facie evidence of any irregularity; and that further that there was no evidence of material effect on the outcome of the referendum – even on a prima facie basis.

Further complaints

My Byrne made three further complaints, alleging:

1. that the Taoiseach and other Government Ministers made statements encouraging voters to cast their ballot in favour of the proposal. This he contends is impermissible. 
2. that in the course of exhorting the electorate to vote in favour of the proposal incorrect and misleading statements were made by Government ministers.
3. that “electoral irregularities” were committed.

Firstly, President Kelly said that it was absurd to suggest that the government should have observed total silence on its own proposal; secondly, that the ‘misleading’ material complained of was part of the political debate which the court must not intervene unless there is evidence of a ‘calculated system of deception or campaign of misrepresentation’; and that thirdly, the majority of evidence submitted to support My Byrne’s complaints about polling irregularities and the electoral register were ‘mere assertion’.

Emphasising the size of the majority in favour of the result, President Kelly was satisfied that Mr Byrne had not discharged the onus of proof under s.42, and that there was no prima facie evidence of interference with the referendum.

As such, Mr Byrne was refused leave to present a petition.

In a separate application, Ms Joanna Jordan was also refused leave to present a petition to the High Court pursuant to s.42 of the Referendum Act 1994.

• by Seosamh Gráinséir for Irish Legal News