HIGH COURT PRESIDENT Mr Justice Peter Kelly has dismissed two attempts to challenge the Eighth Amendment referendum result in a ruling today, but this decision is set to be appealed.

The challenges had been taken by Mr Charles Byrne, of College Rise in Drogheda, and Joanna Jordan, from Upper Glenageary Road in Dun Laoghaire.

They had brought separate applications for permission to bring petitions challenging the results of May’s referendum, which resulted in a resounding Yes vote.

Counsel for Byrne indicated they would appeal the matter, and Mr Justice Kelly agreed to allow a week for the matter to be heard in the Court of Appeal after which, if these appeals fail, he will direct that the referendum returning officer be informed that these bids to challenge the results have failed.

In his ruling, Mr Justice Kelly said it was necessary to have provided evidence that showed a material effect on the result of the referendum as a whole.

Quoting a previous ruling on a separate matter, the judge said: “A referendum petition is not a tool for a disappointed voter.” He said that any challenge to a referendum was a significant step, and that the onus of proof was on the applicants on their bases for challenging the result.

Not one voter, he said, had come forward to allege that they were misled into voting a certain way in the referendum by the government or from independent referendum information.

On Byrne’s complaints about the Referendum Commission leaflets issued to all households, for example, Mr Justice Kelly said: “I am of the view that the complaints made about it are without substance or foundation.”

Legal arguments

Byrne submitted to the court that statements made by Taoiseach Leo Varadkar to the media “misled people and questioned the credibility of those who took a different view and were in favour of a ‘No’ vote”.

Quoting a number of interviews, Byrne’s legal team told the High Court that Varadkar had written that “some women’s lives have been lost” and that the “Eighth Amendment has not saved lives, it has failed lives”.

It was argued that since the Eighth Amendment was still law before the vote on 25 May, government campaigning for the repeal of the Eighth Amendment could be viewed as an infringement of the right to life that’s already established in the Constitution.

“So any comment made [by the Taoiseach or the Health Minister] about the Eighth Amendment, that was itself wrongdoing on their part?” the president of the High Court, Mr Justice Peter Kelly asked.

When Byrne’s legal team agreed, Kelly responded:

“That’s of extraordinary far-reaching consequences, isn’t it?”

Jordan also made claims about statements made by Health Minister Simon Harris that he had “unlawful interference” in the outcome of the referendum. The judge quoted her as saying: “t is reasonably possible that this interference affected the outcome of the poll.”

The judge found some of her arguments were not backed up by evidence. He said: “Speculation is not evidence. Mere assertion is not evidence.”

Today, the judge ruled that government ministers were entitled to campaign on whichever side they choose in a referendum, and nothing precluded them from doing so. He was said he was unable to accept ”with any validity”  that ministers had acted wrongly by campaigning.

Complaints were also made about the information included in the Referendum Commission booklet sent out to all homes, as well as its website. These complaints were rejected by Mr Justice Kelly, who said Byrne had “demonstrated nothing wrong or manifestly inaccurate” in these publications.

On Byrne’s allegations concerning voter irregularities, the judge said: “Even when I give the most generous reading to this material, I am unable to conclude he has given even prima facie evidence [of this occurring].”

The Eighth Amendment referendum saw 66.4% vote in favour of repealing the Eighth Amendment, and paved the way for it to be replaced with legislation allowing for terminations up to 12 weeks without restriction.

In total, 1,429,981 voted to repeal the Eighth Amendment and 723,632 voted to retain it.

Health Minister Simon Harris has said that he hopes to have this legislation brought before the Dáil after the summer recess.

As the Dáil is currently suspended, the judge ruled that a “stay” would be given on his ruling denying the bid from Byrne for one week and the matter is set to be heard in the Court of Appeal on or before Friday 27 July.

He said: “The will of the people [has] been expressed. Any challenges in respect of that are dealt with expeditiously. Practically, giving effect to the will of the people will have to be done through legislation. Parliamentary summer holiday has already begun. In practical terms, there wouldn’t be any legislation introduced [before the autumn].”

An application for the legal costs of Byrne will be heard on Tuesday.

With reporting from Gráinne Ní Aodha

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