Saturday 16 November 2019

Minister not entitled to make contraception free as part of referendum vote - court hears

Health Minister Simon Harris (Niall Carson/PA)
Health Minister Simon Harris (Niall Carson/PA)

Tim Healy

Minister for Health Simon Harris was not entitled to commit public monies to making contraception freely available as part of "a narrative for voting Yes" in the abortion referendum, a Dublin woman seeking to challenge the referendum result has told the High Court.

The Minister’s advocacy of a Yes vote created a “fundamental conflict of interest” between his duties as holder of that office, including in relation to women’s health, Killian McMorrow BL, for Joanna Jordan, argued.

The Minister’s “key role” in the campaign to repeal the Eighth amendment created “voter confusion” concerning whether or not the Minister was speaking in his official role, he said. 

Such confusion was underlined by the Minister answering questions about the cervical smears controversy while attending a vote for Yes event, he said.

The fact the Minister was being paid a salary out of public monies while advocating a Yes vote breached the requirement government should not spend public monies on advocating one side or another in a referendum campaign, he submitted.

While not arguing the Minister was not entitled to express his personal views on the referendum, his case was the Minister acted contrary to the role the courts have stipulated ministers may play in referenda.  

Ministers cannot promise or commit public monies to funds as part of a “narrative for voting yes” but Minister Harris did so by, for example, saying he would make contraception freely available with a view to reducing abortions.

Ms Jordan has been contacted by about 100 people over alleged irregularities in the conduct of the referendum, including about receiving more than one polling card, and 13 have said they will swear affidavits supporting her case, he also said.

Ms Jordan, a homemaker, of Upper Glenageary Road, Dun Laoghaire, is seeking leave to bring a petition challenging the result of the May 25th referendum.

Beginning his arguments opposing her application, Frank Callanan SC, for the State, said he was not clear what case was being made concerning a distinction between Mr Harris as Minister for Health and as a private citizen. 

It could not be argued the Minister was not entitled to campaign or discuss legislative possibilities which have some potential bearing on the outcome of the referendum and its sequel if carried, he said. 

Nothing the Minister did interfered with the political and ethical judgment involved in a decision to vote for or against the referendum proposal, he said. 

The president of the High Court, Mr Justice Peter Kelly, will continue hearing her application on Friday.

Earlier on Thursday, the judge reserved judgment on a separate application for leave to bring a petition, brought by Charles Byrne, a piano teacher and musician, of College Rise, Drogheda, Co Louth. 

Before a petition can be brought, the court must find an intended petitioner has prima facie evidence of matters likely to have a “material effect” on the referendum as a whole.

The State argues neither Mr Byrne nor Ms Jordan have met those criteria.

The Referendum Commission has also rejected complaints by Mr Byrne over the contents of its information guide and website, including alleged failure to explain the legal impact of a Yes vote and to use the word "abortion" instead of "termination".

Its counsel Eoin McCullough SC said Mr Byrne had failed to show anything “plainly wrong or manifestly inaccurate or misleading” in the material. 

At the close of Mr Byrne’s application, his counsel Kenneth Fogarty SC said an analysis of 90,000 names from electoral registers for six constituencies showed 24.7 per cent of names appearing more than once. His side would continue to collect register data from all constituencies and would make the results available to the State and also the court if it permitted the petition.

Counsel said he knew the judge had to decide within the limits of the law but asked him to note what is said in the Book of Deuteronomy about the choice between life and death. “Choose life,” he urged.

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