Challenge to referendum expenditure allowed

Fri, Nov 9, 2012, 00:00

A Dublin man has won his Supreme Court challenge to the Government’s spending of €1.1 million of public money on an information campaign for the children’s referendum.

It is understood that Mark McCrystal, who said throughout his case his concern was the Government was spending public money on a “one-sided” information campaign when it was prohibited from doing so, does not intend to challenge the outcome of the referendum.

A five-judge Supreme Court yesterday granted Mr McCrystal’s appeal against the High Court’s rejection of his challenge.

The Supreme Court, comprising Chief Justice Mrs Justice Susan Denham, presiding, and sitting with Mr Justice John Murray, Mr Justice Adrian Hardiman, Mr Justice Nial Fennelly and Mr Justice Donal O’Donnell, said it was giving its decision as the matter was urgent given the referendum was to be held tomorrow. The court will give its full reasons for its decision later.

Mr McCrystal, Kilbarrack Road, Dublin, had argued that the Government used some information in its campaign that was not neutral but designed and likely to promote a Yes vote.

Public money

He had no objection to the State arguing for a Yes vote but it could only do so by means that did not involve expenditure of public money.

The Supreme Court found “extensive passages” in the Government’s information booklet and on its website about the referendum that did not conform to the 1995 Supreme Court judgment in the McKenna case requiring referendums to be explained to the public in an impartial manner.

The material contained a misstatement, admitted by the State, as to the effect of the referendum, the Chief Justice said. Not all of the website or booklet were in breach of the McKenna principles and, given their overall structure, it would not be appropriate to redact either, she added.

The court granted a declaration that the State parties had “acted wrongfully in expending or arranging to expend public monies on the website, booklet, and advertisement in relation to the Referendum on the Thirty First Amendment of the Constitution (Children) Bill in a manner that was not fair, equal or impartial.”

The court said it did not consider it appropriate or necessary to grant an injunction ordering the State parties to rectify its information campaign as the court assumed the distribution and publishing of the material would cease. Following the ruling, the Government took down the website

Judgment overturned

The Supreme Court’s ruling overturns the judgment last week by the president of the High Court Mr Justice Nicholas Kearns, who rejected claims by Mr McCrystal that the material used in the Government’s campaign was not balanced. There was no “egregious” breach of the McKenna judgment, he found.

Mr McCrystal’s action was against the Minister for Children and Youth Affairs, the Government, Ireland and the Attorney General. Costs will be decided after the full judgment is delivered.

In his case, Mr McCrystal said he did not have a problem with the Government campaigning for a Yes vote but he objected to €1.1 million being spent on an information campaign running parallel but separately to that of the independent Referendum Commission.

Richard Humphreys SC, for Mr McCrystal, had argued that if the Government could conduct such an information campaign with public money, the principles as set out in the McKenna judgment “would be deprived of any substantial bite, reality and meaning”.