Friday 9 December 2016

Latest court challenge against marriage referendum result thrown out

Ray Managh and Aodhan O’Faolain

Published 23/09/2015 | 18:38

Gerry Walshe
Gerry Walshe

The latest legal challenge against the result of the same-sex marriage referendum was thrown out by a judge in the High Court today.

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The challenge had been brought by Gerry Walshe, an electrician, of Lisdeen, Co Clare, who sought to quash the Referendum Returning Officer's decision to certify the result last August which had the effect of formally confirming the outcome of the ballot.

Ms Justice Margaret Heneghan dismissed Walshe’s demands for several orders that would have frozen proposed new legislation currently before Dail Eireann enabling same-sex couples to marry.

Judge Heneghan described as misconceived Mr Walshe’s interpretation of Returning Officer Riona Ni Fhlanghaile’s statutory function to sign the certificate confirming the result.

He also sought orders staying any further actions being taken in relation to the Same Sex Marriage referendum result  until his case has been determined.

He Walshe, who application was opposed, argued the decision to sign the referendum certificate while he had an earlier challenge in being and since dismissed by the Supreme Court was null and void. 

Michael McDowell, SC, counsel for Ms Ni Fhlanghaile, Ireland and the Attorney General, earlier told the court it seemed the crux of Mr Walshe’s case was that he had a right to apply to the Supreme Court for leave to further challenge the outcome of the referendum within a period of 28 days.

Mr McDowell, who appeared with barrister Eoin Carolan, said Mr Walshe expected that during this period everybody else owed him a duty to maintain the status quo for the entire 28 days before the will of the people to change their constitution came into effect.

He told the court it would be strange indeed that any citizen would be able to process an appeal up to the end of the maximum 28 day period.  The only means of challenging the outcome of the referendum was set out in the 1994 Referendum Act stipulating the necessity of a successful petition to the High Court for leave to challenge it.

Mr McDowell said that if one failed to get that permission the Act provided very clearly that the provisional certificate became final and once it had then the Returning Officer had no choice but to notify the Taoiseach and the President that was the case.

He said the process was not one where everybody could step backwards and say “I’ll allow a little bit of time for Mr Walshe to make up his mind.”  There was no room for delay.

The procedure adopted by Mr Walshe was doubly infirm.  He was asking the court to quash an element of a process which, on the face of it, had been made in compliance with the law and he was effectively seeking to quash the decision of the Referendum Returning Officer to endorse the certificate.

Mr McDowell said Mr Walshe was also seeking an order of prohibition to stay any further legislation --- an order directed to the Oireachtas to prohibit it from legislating on foot of the situation as it now stood.

In his application for leave to judicially review the decision of the Returning Officer, Mr Walshe, who represented himself, alleged that Ms Ni Fhlanghaile acted outside of her powers and with bias.

Walshe claimed the certificate should not have been signed within a 28 day period in which he believed he had a window to appeal a refusal by the Courts to allow him bring a separate legal challenge against the referendum result. 

Mr Walshe's application came after the Supreme Court last week refused to permit separate appeals by him and Maurice Lyons, from Callan, Co Kilkenny, against the rejection of their challenges to the Yes result of the referendum.

The Supreme Court decided that neither Walshe nor Lyons had met the requirements for a Supreme Court appeal as neither had raised the necessary legal point of general public importance and had raised no “points of substance.”

The court also ruled that the interests of justice did not require they be given permission to appeal the High Court’s earlier rejection of their case.

The Supreme Court had also noted that because no stay had been placed on the certificate of the referendum result after a Court of Appeal decision, "very serious constitutional consequences" might have occurred had it decided to grant leave to appeal.

The High Court dismissed the proceedings by both men on June 5th.

The Court of Appeal upheld that decision on July 30th when it dismissed both men’s appeals against the High Court refusal and lifted a stay on the issuing of the final referendum certificate. They failed to have further appeals heard by the Supreme Court.

Judge Heneghan awarded the State its legal costs against Mr Walshe.

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