President of the High Court refuses abortion bill challenge

Wednesday 17 July 2013 12.53
Mr Justice Nicholas Kearns said the High Court had no entitlement to deal with the application
Mr Justice Nicholas Kearns said the High Court had no entitlement to deal with the application

The President of the High Court has refused to grant an injunction to a Dublin woman aimed at stopping provisions of the Protection of Life During Pregnancy Bill being voted into law.

Jane Murphy, with an address at Milltown, Dublin 14, made the ex parte application (one side only represented) in the High Court.

She may appeal Mr Justice Nicholas Kearns’s refusal to the Supreme Court.

Ms Murphy was accompanied in court by former MEP Kathy Sinnott and Mark McCrystal, who successfully challenged the Government's spend of public monies on its information campaign in the Children's Referendum.

In intended proceedings against Taoiseach Enda Kenny, Minister for Health James Reilly and the Government, Ms Murphy sought injunctions "to prevent the respondents usurping the will of the Irish people on the day of Thursday 11th of July 2013".

She also sought to bring proceedings aimed at securing declarations "that provisions which stand rejected by the Irish people in a referendum cannot be included in proposed legislation, nor can they be voted on by the Oireachtas".

Ms Murphy further sought a pre-emptive order that the costs of the application and any subsequent judicial review be granted to her on the basis the case was brought "in the national interest and not for any personal benefit".

The application stated the intention was to prevent the Government including two provisions in the bill currently before the Oireachtas and also to prevent the vote on that bill.

The provisions at issue have been rejected by the people of Ireland in a valid referendum, the notice stated. It also stated: "The provision that protection of the unborn should be limited to the later stage of implantation was rejected in referendum in 2002."

Another provision "to repeal Sections 58 and 59 of the Offences Against The Person Act 1861 was also put to the people of Ireland and rejected in the same 2002 referendum," it was stated.

"Having put those provisions to the Irish people with the result of having them rejected in a referendum in 2002, it is unconstitutional and an affront to the sovereignty of the Irish people to have them included in proposed legislation and to have them voted on," the notice stated.

Mr Justice Kearns said he was satisfied he had no jurisdiction to grant any such relief. He said the matter was before the legislature and the court, under the doctrine of the separation of powers, had no entitlement to deal with it.

He did not believe the court, at this stage of the matter, had any entitlement to interfere.

Having delivered his ruling, the judge told Ms Muprhy she was entitled to appeal to the Supreme Court.

Court case 'laying down a marker'

Mattie McGrath TD said he alerted the Government to the issues surrounding the two provisions last night in the Dáil.

Speaking at Leinster House, the Independent TD said he presented letters to the Taoiseach, Minister for Health, Minister for Justice and the Ceann Comhairle. He said he raised the matter again at Leaders' Questions this morning.

Mr McGrath said the people are supreme and they have rejected these matters in referendums.

Ms Sinnott said they were laying down a marker for the Government that two provisions in the bill have already been rejected by the Irish people.

She said the only way to revisit those issues is to go back to the people.

Ms Sinnott said High Court ruled it cannot interfere at this stage with the Oireachtas in full swing.

She said the provisions (the definition of the unborn as beginning with implantation and the repeal of sections 58 and 59 of the Offences against the Person Act) should be removed from the bill before a vote.

The former MEP said the Government is acting as if the people had not spoken.

Former MEP Dana Rosemary Scallon also said she fully supports the court challenge to the bill.

"Mr Kenny and other political leaders cannot choose to ignore or to abandon the democratic and Constitutional will of the people," she said.

Ms Scallon said that President Michael D Higgins must now speak up and defend the people and their democratic decision in rejecting the legalisation of abortion.

"President Higgins must set aside any personal opinion and any personal agenda and protect the Constitution."