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Thursday 5 October 2023 Dublin: 14°C
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# Eighth Amendment
Statements by Varadkar and Harris 'misled' abortion referendum voters, High Court told
The High Court also heard that the Referendum Commission “omitted objective statements” on Eighth Amendment referendum.

THE HIGH COURT has heard that statements made by Taoiseach Leo Varadkar and Health Minister Simon Harris on abortion were “misleading” and could have had an effect on the result of the Eighth Amendment referendum.

The role of the government in seeking to amend or remove the constitutional right to life in the context of a referendum was questioned, an action that was described as possibly having “far-reaching consequences”.

The court also heard that the Referendum Commission “omitted objective statements” and shirked its obligations to give out “complete” impartial information on the Eighth Amendment referendum.

Three separate applications to have a petition put forward against the Eighth Amendment referendum result had been actioned and were due to be heard today. One of the three applications, by Mr Ciarán Tracey, was withdrawn.

A second applicant, Mr Charles Byrne, was taking a case based on what he alleged was incomplete information given by the Referendum Commission through its website and booklets.

Joanne Jordan is the third applicant for petition against the result of the Eighth Amendment referendum. Jordan delayed the enactment of the Children’s Referendum by nearly three years through litigation which ultimately was not successful.

Byrne submitted to the court that statements made by Taoiseach Leo Varadkar to the media “misled people and questioned the credibility of those who took a different view and were in favour of a ‘No’ vote”.

Quoting a number of interviews, Byrne’s legal team told the High Court that Varadkar had written that “some women’s lives have been lost” and that the “Eighth Amendment has not saved lives, it has failed lives”.

He also took issue with Varadkar’s statement that if a ‘Yes’ vote didn’t prevail, women could face a 14-year jail term; and another statement which compared the UK laws on abortion with what the government’s draft legislation had provided for.

He also claimed that the Minister for Health Simon Harris “wrongly claimed” that it was wrong to make an issue of Down Syndrome in the context of the legalisation of abortion.

The court was told that if members of the government were entitled to give false statements then people would be voting on the basis of incorrect information given to them, which would “affect the fundamental law in the country”.

When asked whether Byrne’s counsel was arguing that the public had been “duped” because of the misleading statements given, it was stated that there was a “reasonable” chance that those statements had an impact on the outcome of the referendum as a whole.

Separate to that, it was put to the High Court that as the government of the day, Varadkar and Harris should not have expressed any opinion or stance in the context of the Eighth Amendment referendum.

It was argued that since the Eighth Amendment was still law before the vote on 25 May, government campaigning for the repeal of the Eighth Amendment could be viewed as an infringement of the right to life that’s already established in the Constitution.

“So any comment made [by the Taoiseach or the Health Minister] about the Eighth Amendment, that was itself wrongdoing on their part?” the president of the High Court, Mr Justice Peter Kelly asked.

When the second applicant’s legal team agreed, Kelly responded:

“That’s of extraordinary far-reaching consequences, isn’t it?”

Alleged voter fraud 

Mr Justice Peter Kelly was also told by the legal team representing Byrne that there wasn’t enough information from the Referendum Commission on the legal effect a ‘Yes’ vote would have; that the statement that the electorate was not asked to vote on a particular law was misleading; and that the term ‘abortion’ instead of ‘termination of pregnancy’ should have been used as termination of pregnancy doesn’t always result in ending the life of the unborn.

The second applicant also took issue with a section on the European Convention on Human Rights, as it failed to mention “the ABC case and its associated implications”.

Counsel for Byrne also said that it was possible voter fraud occurred, and fielded a number of questions from the judge on how substantial those claims were.

The allegations included reports of half a million people who were registered that shouldn’t have been, and “multiple cases of people being sent two polling cards”.

The Eighth Amendment referendum saw 66.4% vote in favour of repealing the Eighth Amendment, and paved the way for it to be replaced with legislation allowing for terminations up to 12 weeks without restriction.

In total, 1,429,981 voted to repeal the Eighth Amendment and 723,632 voted to retain it.

The court was told that there were “numerous persons living abroad and returned to Ireland to vote, who somehow admitted to voting illegally”.

“We have a sworn affidavit of people who will give that evidence,” counsel for Mr Byrne told the court.

Acknowledging that the court needed stronger evidence of voter fraud, the counsel for Mr Byrne then asked the court for more time to bring more concrete evidence forward that showed voter fraud had occurred, pointing out that it had only been four weeks since the referendum result.

The hearing continues tomorrow at 11am.