High Court: Irish woman from Belfast refused leave in bid for referendum vote

About this case:

• Judgment:
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Finding that the woman had failed to make an arguable case, Mr Justice Meenan rejected arguments regarding the Constitution, the Good Friday Agreement, and the European Convention on Human Rights.

Background

Roisin Morelli, an Irish citizen from Belfast sought to vote in the referendum on the Eighth Amendment to the Irish Constitution, set for 25th May 2018.

She brought the proceedings by way of judicial review claiming that the refusal to grant her a vote was contrary to:

An application for leave to bring the within judicial review proceedings was made in March 2018, prior to the enactment of the necessary legislation to enable the fixing of a date for the referendum on the Eighth Amendment.

Test to be Applied

Referring to G v Director of Public Prosecutions 1 IR 374, Justice Meenan said that the Court was concerned with whether Ms Morelli had made “an arguable case” for leave.

Also considering Esmé v Minister for Justice and Law Reform IESC 26, Justice Meenan said that to meet the “arguability test”, an applicant has to point to some provision of the Constitution, statute or legal authority that, on a reasonable interpretation, would support the case being made.

“Further, in a case such as this, where the statutes in question enjoy the presumption of constitutionality, this is a factor which the court should take into account when deciding whether the “arguability” threshold has been passed”.

The Constitution

Ms Morelli sought a declaration that the failure or refusal to allow her, as an Irish citizen who happens to ordinarily reside in Northern Ireland, to vote in referenda, is in breach of her rights pursuant to Articles 2, 16.2 and 47.3 of the Constitution. Further, she claimed that ss. 7 and/or 8 of the Electoral Act 1992 are repugnant to the Constitution

Under these statutory provisions, it is clear that being a citizen of Ireland and “ordinarily resident” in a constituency are pre-requisites to having a vote in a referendum. Constituencies are “determined by law”, as provided for by Article 16.2.

Justice Meenan said that it was clear from the wording of the Constitution that there was a direct link between voting for members of the Dáil and voting at a referendum, and the that the statutory requirement in the Electoral Act 1992 for ordinary residence in a constituency to have a vote was consistent with the constitutional requirement to have a state ratio between the number of elected Dáil members and the population of each constituency.

Rejecting Ms Morelli’s argument that the Oireachtas could legislate to divide Northern Ireland into constituencies, Justice Meenan said that this would be impermissible under Article 3 of the Constitution. Justice Meenan said that the problem would become even more acute when considering Irish citizens living across the world.

Considering all of the above, Justice Meenan said that Ms Morelli’s case regarding constitutional rights fell “well short of being arguable”, and that an amendment to Article 47.6 of the Constitution would be required.

Good Friday Agreement

Relying on Article 1 of the Good Friday Agreement (GFA), Ms Morelli said that refusing to allow her to vote was in breach of the GFA. Justice Meenan said that although there were references to citizenship in the GFA, there were no provisions regarding voting entitlements, and that the amendments to the Constitution following the GFA did not alter this.

Referring to Doherty v Governor of Portlaoise Prison 2 IR 252, and O’Neill v The Governor of Castlerea Prison 1 IR 298; Justice Meenan was satisfied that Ms Morelli could not make any case under the GFA.

European Convention on Human Rights

Ms Morelli said that refusal to allow her to vote was in breach of Article 10 and/or Article 3 of the First Protocol to the ECHR, and therefore in breach of s.3 of the European Convention on Human Rights Act 2003.

Ms Morelli relied on Shindler v. United Kingdom 58 EHRR 5, which was rejected by the State. Justice Meenan also considered Hilbe v. Liechtenstein, 31981/96, ECHR 199, Niedzwiedz v. Poland 47 EHRR 2, Moohan and Another v. The Lord Advocate UKSC 67, and Jordan v. Minister for Children and Youth Affairs IEHC 327; from which he said it was clear that Ms Morelli had no case.

In addition, Justice Meenan rejected Ms Morellis reliance upon Article 10 of the Constitution, noting that Ms Morelli made no case that she was subject to any impediment in expressing her views and opinions on the Eighth Amendment. Submitting that voting was an “expression” was misconceived, he said.

Stating that Article 3 of protocol 1 is a lex specialis on voting rights, Justice Meenan said that Ms Morelli had no case under Article 10.

Refusing to grant leave to seek judicial review, Justice Meenan was satisfied that the case made by Ms Morelli fell well short of being arguable.