High Court dismisses students' challenge to abortion referendum

A legal challenge by two students to the Government's proposed mechanism for amending the Constitution in the forthcoming referendum on abortion was dismissed yesterday by the High Court.

Lawyers for the students indicated afterwards they intended to appeal to the Supreme Court.

Mr Justice Kelly described the proposed amending procedure as a "clever drafting device" which was not in conflict with Article 46 of the Constitution. The people were being asked to approve an amendment to the Constitution which made provision for a law relating to abortion as may be set out in a subsequent Act.

The amendment was subject to a condition that it would lapse unless the subsequent Act was enacted containing a specific text within a prescribed time. That specific text was set out in the Second Schedule to the Bill (the 25th Amendment to the Constitution (Protection of Human Life in Pregnancy) Bill 2001).

The judge said the proposal was properly being put before the people and they should be given the opportunity to express their view without interference by the court.

He refused the students' application to put a stay on the setting of a poll date for the referendum. The Attorney General, Mr Michael McDowell, had resisted any stay and said the Minister for the Environment intended to make an order in the matter in the "near future".

Costs of the proceedings were awarded against the students but the judge put a stay on the costs order in the event of an appeal.

The case was brought by Ms Johanna Morris, a law student, of Iona Road, Glasnevin, Dublin, and Ms Sian Ní Mhaoldomhnaigh, a post-graduate politics student of Árd Rígh Road, Cabra, Dublin. They had argued that before the referendum might proceed, the mechanism for making amendment to the Constitution must first be changed.

They sought a declaration that the 25th Amendment Bill conflicted with Article 46 of the Constitution because it contained another proposal - a proposed Act of the Oireachtas. They also sought an order prohibiting the Minister for the Environment and Local Government from setting a polling day for the holding of a referendum on the Bill.

The students argued that, except in the case of proposed repeals, Article 46.1 of the Constitution required the proposed variation or addition to the Constitution to be contained in the body or text of the Constitution itself and not to have a separate existence in the form of an Act of the Oireachtas, Ministerial Circular, memorandum of agreement or press statement purporting to possess constitutionally entrenched status in every respect.

Mr Justice Kelly rejected that ground. He said Article 46.1 contained no express prohibition on an amendment in the form proposed.

It also contained no mandatory obligation to the effect that an amendment must be contained in its entirety in the body or text of the Constitution itself.

While he accepted this was the first time this particular procedure to amend the Constitution had been utilised, earlier amendments to the Constitution had been brought about through reference to documents which were not themselves incorporated into the text of the Constitution, the most notable in recent times being the Belfast Agreement.

The judge also noted the Supreme Court had found - in its decision rejecting a challenge to the referendum on the Belfast Agreement - that the people, if they wished, were entitled to approve a constitutional amendment subject to a condition.

The judge also described as "not well founded" the students' claim that Article 46 of the Constitution would first have to be amended before the proposed procedure for amending the Constitution could be effected.

On the students's claim that the Bill conflicted with the requirement of Article 46.4 of the Constitution that "a Bill containing a proposal or proposals for the amendment of this Constitution shall not contain any other proposal", the judge said the issue was the meaning of "any other proposal".

In his view, what these words meant was "a proposal in a Bill", a legislative proposal. He found the text contained in the Second Schedule to the 25th Amendment Bill had no legislative effect as a result of it being in the Second Schedule.