Applications to challenge abortion referendum result rejected

Judge orders result of vote cannot come into effect for a week to allow plaintiff seek appeal

The president of the High Court has refused two separate applications for permission to bring petitions challenging the Yes result of the abortion referendum.

Mr Justice Peter Kelly also made an order with the effect the referendum result cannot come into formal effect for at least a week to allow Charles Byrne seek an appeal to the Court of Appeal.

He deferred addressing costs issues in both cases to next Tuesday.

The judge ruled on Friday neither Mr Byrne nor Joanna Jordan had met the necessary legal test set by the Referendum Act before a court can permit a petition to be brought.


The Act requires a petition can be brought only if the intended petitioner has 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, which granted equal recognition to the right to life of the unborn and the mother. 723,632 voted against.

After he gave his first judgment refusing Mr Byrne’s application, lawyers for Mr Byrne sought to defer any formal certification of the referendum result pending an appeal.

Will of the people

Frank Callanan SC, for the State, said it was very concerned to give effect to the will of the people as expressed in the referendum and the balance of constitutional justice would be met if Mr Byrne’s side were required to go to the Court of Appeal by next Friday.

Mr Justice Kelly agreed to make an order preventing the Master of the High Court informing the referendum returning officer the petition had been refused as that would trigger the formal procedure for certification of the referendum result.

After refusing Ms Jordan’s application, he adjourned costs matters in that, and any application for ancillary orders, to next Tuesday.

The applications for leave to bring petitions were by Mr Byrne, a piano teacher and musician, of College Rise, Drogheda, Co Louth and Ms Jordan, a homemaker, of Upper Glenageary Road, Dún Laoghaire.

Both alleged irregularities in the conduct of the referendum and registration of voters.

They also complained about statements made by Taoiseach Leo Varadkar and Minister for Health Simon Harris during the referendum campaign. The State said none of the matters raised met the criteria for a petition.

Mr Byrne 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 denied those claims.

In his judgment, Mr Justice Kelly examined in detail Mr Byrne’s complaints about the commission’s material before concluding they must be dismissed as “without foundation or substance”. The evidence did not justify a petition by reference to the complaints against the Commission, he ruled..

He also dismissed claims of unconstitutional conduct during the referendum campaign by the government, particularly the Taoiseach and the Minister for Health, in advocating a Yes vote.

‘Bizarre and absurd’

He rejected arguments the duty imposed by Article 40.3.3 meant the right to life of the unborn is something all organs of government, including the judiciary, must support and no government minister could encourage a yes vote.

There is “nothing” in the Constitution to prevent the government campaigning for any change in the Constitution and accepting Mr Byrne’s argument would lead to the “bizarre” and “absurd” result of government ministers having to be totally silent on a referendum proposal they had introduced.

He dismissed other complaints by Mr Byrne about “misstatements” allegedly made by the Taoiseach and Minister for Health during the referendum.

The courts should not get involved in analysing individual statements made during interviews in what is essentially a political campaign, he said. The court has no role in that unless there was evidence of sustained campaign of deception and there was no such evidence here and not a single complaint to that effect. Nor had he shown the matter complained of had a material effect on the conduct of the referendum and not a single voter had complained.

Mr Byrne had come “nowhere near” demonstrating the matters complained of had a material effect on the outcome of the referendum as a whole.

The judge also dismissed Mr Byrne’s claims of entitlement to bring a petition on grounds of alleged electoral irregularities, including about polling cards being provided irregularly and about people being removed from the register and then restored.


The material provided to support these claims did not amount to prima facie evidence as required by the Referendum Act and nor had he shown the alleged matters were such as to materially affect the outcome. “Speculation is not evidence,” he said.

In his judgment on Ms Jordan’s case, the judge rejected her claims that statements by the Minister for Health were such as to materially affect the outcome of the referendum.

There was no conflict or illegality in the Minister discharging his ministerial functions while continuing to campaign for a Yes result, he ruled.

He was also satisfied the activity complained of was not such as to materially affect the outcome of the referendum as a whole.

He rejected arguments about alleged electoral irregularities.

Much of what was claimed in her affidavits was assertion, speculation and inadmissible hearsay, he said. In particular was the remarkable and speculative proposition, by comparison with the 2011 Census, it could be stated there could be over-registration of up to 600,000 persons on the electoral register.

He was not satisfied she had provided prima facie evidence of the matters alleged and had also not presented prima facie evidence of material effect.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times