The High Court has refused Roisin Morelli leave to seek judicial review over her exclusion from the May 2018 referendum on repealing the Eighth Amendment. Mr Justice Meenan ruled on 20 April 2018 that her arguments on constitutional, Good Friday Agreement and European Convention grounds were not arguable at the required preliminary stage.
Morelli, an Irish citizen and full-time student living in Belfast, wanted to vote in the referendum. She argued that denying her a vote breached the Constitution, the Good Friday Agreement and the European Convention on Human Rights, and challenged sections 7 and 8 of the Electoral Act 1992.
The application for leave was made on 12 March 2018 and adjourned because legislation setting the referendum date had not yet been enacted. The respondents opposed leave at a hearing on 13 April.
On the constitutional argument, the judge said Article 47.3 links the right to vote in a referendum to eligibility to vote for Dáil Éireann. Under the 1992 Act, that eligibility requires ordinary residence in a constituency. He concluded that the residence requirement was consistent with the constitutional framework for constituencies and that the challenge to the law fell well short of being arguable.
The judge also rejected the claim under the Good Friday Agreement, noting that it addresses citizenship and identity but contains no provisions on voting entitlements. He said it had not been incorporated into domestic law in a way that gave Morelli an enforceable right to vote.
On the European Convention grounds, the judgment relied on authorities holding that Article 3 of Protocol No. 1, concerning free elections, does not apply to referendums. The judge also found no basis for an Article 10 claim: Morelli had not alleged an impediment to expressing her views, and voting was not protected as an Article 10 right in this case.
The court’s decision was limited to whether Morelli could proceed with judicial review. It did not determine a full judicial review after trial. Leave was refused for the reliefs sought. The judge said that, if Morelli remained ordinarily resident outside any Irish constituency, a constitutional amendment would be needed for her to vote in a future referendum.