A tale of two Supreme Court rulings against government referendum publicity campaigns

On November 17th, 1995, the Supreme Court found the then Fine Gael-Labour government was acting unconstitutionally in spending public money to support one particular outcome in the second divorce referendum.

The case arose from a challenge by Patricia McKenna to the government’s plan to spend £500,000 on publicity and advertising activities encouraging a Yes vote.

The court found such expenditure amounted to a breach of the constitutional rights to equality, freedom of expression and a democratic process in referendums and put the voting rights of citizens favouring a constitutional amendment above the voting rights of those opposed.

The judgment also said the government had a duty to spend money on giving information to the public about the implications of a constitutional amendment and to explain the referendum.

The implications of the McKenna judgment were both immediate and long term.

The judgment came just eight days before polling. It hobbled the government’s effort for a Yes vote and was a shot in the arm to the No campaign. However, it also set the non-government Yes campaign alight.

Those of us involved at the time in the Right to Remarry campaign vividly recall how the phones hopped and the funds flowed rapidly into campaign headquarters in the days after the McKenna judgment. Up to that point it had been assumed the amendment would be passed; all of a sudden it was in jeopardy.

The implications of this week’s McCrystal judgment, in which the Supreme Court reaffirmed the McKenna principles, will also have short and long-term significance.

It is an embarrassment for the Government that 48 hours before its flagship constitutional referendum on children’s rights, the Supreme Court has unanimously cited it for unconstitutional behaviour in the content of its information campaign.

On Thursday a summary judgment on McCrystal’s application was published in the name of the Chief Justice; full judgments will be published on December 11th. The detailed Supreme Court reasoning will make fascinating reading, not least because it seems to be based on entirely different findings on the facts from those made by the president of the High Court, Mr Justice Kearns, when he rejected McCrystal’s case.

Bona fides

In the wake of Thursday’s judgment, the Government argued it had acted with bona fides. It had the benefit of legal advice on the content of its documentation and on whether the text infringed the McKenna judgment.

In light of the judgment this advice has been shown to have been wrong. However, the Government can hardly be said to have deliberately set out to flout the McKenna judgment, when the same material was found by the High Court last week to be “neutral, balanced and [having] the primary aim of informing the public”.

The Government’s mistake was in not leaving the information function to the Referendum Commission alone. In this referendum, as in May’s fiscal treaty referendum, the Government decided to take about a third of the Referendum Commission budget and use it on two million information booklets and a website published directly by the relevant department.