Government ministers do not have to meet standards of "legal accuracy" when campaigning in referendums and only an extreme situation might entitle the courts to intervene in their campaigning, the State has told the High Court.
No such situation arose concerning how Taoiseach Leo Varadkar and Minister for Health Simon Harris campaigned in favour of repealing the anti-abortion Eighth amendment, Frank Callanan SC said.
Counsel rejected claims by Charles Byrne, who is seeking leave to challenge the referendum result, that certain statements by the Taoiseach and Minster for Health "duped" voters.
There is “neither authority nor logic” to the proposition Ministers can be held to account on matters of “legal accuracy”. The courts should also respect the intelligence of voters as the Irish people “have not been marked out by excessive deference to Taoisigh or government minsters”.
Claims by Mr Byrne that campaigning for repeal was an abrogation of the government’s responsibilities to the unborn under the Constitution were “untenable” and the product of “intellectual confusion”. The courts have clearly said ministers are free to campaign in referenda once they do not use public funds to advocate for a particular side, he said.
If Mr Byrne was correct, government members could not promote any referendum affecting rights of the unborn while government members who opposed any such referendum could promote its defeat. That would mean “multiple unintended effects and consequences” in a democratic state.
Such claims “lose sight of the respect citizens of the State owe to each other”, counsel said.
Mr Byrne was in this case professing an intent to “perfect” the referendum process based on arguments that curtailed and impaired that process.
When the president of the High Court, Mr Justice Peter Kelly, asked could the courts intervene if ministers told lies, counsel said there would have to be a "highly radical situation" or constitutional crisis such as a government proposing a referendum to abolish the Constitution.
Material affect on referendum outcome
Counsel was opposing an application by Mr Byrne, a piano teacher and musician, College Rise, Drogheda, for leave to bring a petition challenging the referendum result. A separate application by Joanna Jordan, a homemaker, Upper Glenageary Road, Dun Laoghaire, will be heard after Mr Byrne's application.
The Referendum Act requires, before a petition can be brought, the court must find an intended petitioner has shown prima facie evidence of matters likely to “materially” affect the referendum outcome which was 1,429,981 votes for repeal and 723,632 against.
On Wednesday, Mr Callanan argued Mr Byrne had not demonstrated prima facie evidence of irregularities such as to have a material effect on the referendum as a whole.
Eoin McCullough SC, for the Referendum Commission, also argued no case had been made out to support Mr Byrne’s complaints over the Commission’s information campaign.
Mr Callanan said, of 12 affidavits provided for Mr Byrne’s case, only one had direct evidence of a woman voting in the referendum despite not being entitled to. A woman identified as Sarah had told the Niall Boylan radio show on 4FM she is from the UK, had got a polling card and had voted.
Another affidavit from the Abbess of the Poor Clare community in Ennis, Co Clare, said she checked the register after the Association of Missionaries and Religious of Ireland informed her some of their members had been “mysteriously” removed from the register.
Mother Bernadine Meskell said, after the local council confirmed the Sisters were no longer registered, she took steps to have them registered and the council and gardaí were “magnificent” in assisting that.
When Mr Callanan said the ten Poor Clare Sisters had voted, the judge said the AMRI email appeared to suggest other communities of religious may not have been on the register.
Earlier, the judge did not have to rule on an application to admit additional affidavits when the respondents said they were not objecting to all 12 affidavits being admitted.
The hearing continues.
