The Government’s publicly funded information campaign in the Children Referendum was in “clear disregard” of the limits imposed by the Constitution on what the State may do in a referendum and was neither fair, equal, impartial nor neutral, the Supreme Court has ruled.
The government’s campaign clearly favoured passage of the referendum, the court found.
In detailed judgments yesterday, all five judges agreed with Dublin engineer Mark McCrystal that the Government campaign breached the McKenna principles, set out by the Supreme Court in 1995, requiring publicly funded information in a referendum be presented in a balanced way.
The judgments are expected to be strongly relied upon in the forthcoming action by Dublin homemaker Joanna Jordan aimed at overturning the referendum result. Ms Jordan, who campaigned for a No vote, claims the outcome of the poll was materially affected by the Government’s “one-sided” information campaign.
In their judgments, the Supreme Court noted that the Government campaign, which cost the taxpayer €1.1m, ran parallel to the information campaign of the Referendum Commission and the latter campaign was not challenged or criticised.
Most of the €1.1m Government spend was on advice from a public relations agency and devising a campaign involving a website, booklet and buying radio and TV advertisements, said Mr Justice Donal O’Donnell.
The information distributed by the commission showed, despite what the State argued, that it was possible to state the facts and issues without inevitably favouring the proposal, he said.
The Government’s decision to run its own campaign ran not just a risk of legal challenge but also of “considerable confusion”.
‘Clear disregard’
The Chief Justice, Ms Justice Susan Denham, noted a recommendation in 2009 that the Government consider establishing an independent body, such as the proposed electoral commission, to consolidate various electoral functions, including of the commission.
She said the 1995 Supreme Court judgment in the McKenna case required the Government to act in referendums within the restraints imposed by the Constitution and the courts must intervene where there was “a clear disregard” of those restraints.
In dismissing the challenge by Mr McCrystal to the Government’s campaign, the High Court had erred in finding there must be a “blatant and egregious” breach of the McKenna principles before the court would intervene, she said.
The correct test was whether the campaign breached the McKenna principles requiring publicly funded information to be fair, equal, impartial and neutral, she said.
The campaign amounted to “a clear disregard” of the McKenna principles.
The Government’s booklet, website and adverts failed the test of being fair, equal and impartial, failed to be neutral and “failed to hold the scales equally between both sides”.
