The High Court has refused Charles Byrne leave to present a petition challenging the result of Ireland’s 2018 referendum on the Thirty-sixth Amendment, which proposed replacing the constitutional provision on the right to life of the unborn with a provision allowing laws to regulate termination of pregnancy.
In a judgment delivered on 20 July 2018, President of the High Court Mr Justice Kelly said the statutory threshold for leave had not been met. Under the Referendum Act 1994, the court had to be satisfied there was prima facie evidence of a matter specified in the Act and that it could materially affect the referendum result as a whole. The judge said the threshold required rigorous assessment.
Mr Byrne argued that the Referendum Commission’s booklet and website gave an incomplete or misleading account of the proposal. He also challenged Government ministers’ campaigning and statements, and raised alleged polling and electoral-register irregularities. These were his allegations; the court’s decision was whether there was sufficient evidence to allow a petition to proceed.
The judge rejected the complaints about the Commission’s information. He found the booklet’s explanation, read alongside its account of the existing law and the proposed constitutional text, was not shown to be misleading. He also found no prima facie evidence of wrongdoing in the website’s material about the European Convention on Human Rights.
On ministers’ campaign statements, Mr Justice Kelly said the material formed part of political debate and that courts should intervene only where there was evidence of a calculated system of deception or campaign of misrepresentation. He found Mr Byrne had not provided prima facie evidence of such a campaign. The judge also said no voter had given evidence of being misled or having voted differently as a result of the statements.
The court considered allegations including incorrectly issued polling cards, voters being removed from and restored to the register, a reported turnout above 100% in one Dublin Rathdown polling box, and island voters allegedly being given the wrong polling date. It also considered claims about the electoral register and a report proposing a method for comparing registers. The judge said some material was assertion or inadmissible, and that speculation about what further analysis might show was not evidence.
The referendum had a majority of 706,349 votes in favour. The judge said the margin made it especially important to show how alleged irregularities could materially affect the result. He concluded that Mr Byrne had not produced the evidence required under section 42 and refused leave to present a petition. The ruling determined the leave application; it was not a trial of a referendum petition.