The children's referendum will proceed despite a Supreme Court ruling that the Government acted wrongfully in part of its €1.1 million information campaign
This morning, the five-judge Supreme Court agreed with Dublin man Mark McCrystal's claim that "extensive passages" in the Government's information booklet and on its website about Saturday's vote were in breach of rules designed to ensure a fair, equal and impartial playing field in referendum debates.
It found the Government did not conform to the 1995 Supreme Court judgment on the McKenna case requiring a referendum to be explained to the public impartially.
While it declined to make an order requiring the State to rectify the situation, the court said that as a result of its finding, it "assumed that the Government would cease distributing and publishing the material".
The Government's information website childrensreferendum.ie had been amended this afternoon to include only basic information on the wording of the constitutional amendment and the scheme of the Adoption Bill.
Tánaiste Eamon Gilmore said the Government accepted the Supreme Court judgment but insisted it would not affect the referendum.
Mr Gilmore said the judiciary was independent and a judgment had been made in this case which the Government would consider in December when the judgment will be published.
"The Supreme Court has made a decision. The Government respects that decision and is complying with it. The website concerned has been changed to reflect that and the material is no longer being circulated and in so far as we can physically do so we will be recalling it," Mr Gilmore said. “The Supreme Court decision did not comment on the merits one way or the other of the arguments in this referendum, it was a decision based on the publication of the booklet. So the referendum goes ahead on Saturday. The argument in favour of this referendum remains the same.”
Minister for Children Frances Fitzgerald said the Government had acted in good faith. "In providing public information the Government at all times acted in good faith and with the best of intentions in informing people about the substance of the amendment," she said. "The approach taken was supported by legal advice and reflected the understanding at the time of the legal requirements in this complex area of law.
"However, I fully acknowledge the Supreme Court has found that not all of the material published complied with the McKenna principles."
Minister for Justice Alan Shatter said the Government had taken a "great deal of care" to comply with the McKenna principles. He said the Government would have to review the detailed reasoning of the Supreme Court when the full judgment was published on December 11th.
Speaking on RTÉ's News at One, Mr Shatter said the court had said the information campaign, in so far as it was contained in the referendum campaign booklet and on the website, did not conform to the McKenna principles. It did not have any impact on the substantive issue on which the people were being asked to vote on Saturday.
"We need to look in great detail at the judgment and what the Supreme Court is specifically raising," he said.
Independent TD Mattie McGrath tonight called for the vote to be postponed. "This is outrageous what has happened," he told RTÉ, describing it as “an appalling mess”. Mr McGrath was the only TD to oppose the referendum.
The Supreme Court's decision overturns the judgment given last week by the President of the High Court, Mr Justice Nicholas Kearns, who rejected claims by Mr McCrystal, an engineer from Kilbarrack Road, Dublin, that the Government had acted wrongfully in spending public money on the campaign.
The High Court found that the material used in the Government’s campaign, which Mr McCrystal complained of, was "neutral, balanced and had the primary aim of informing the public about the forthcoming referendum".
Mr McCrystal - who had brought an action against the Minister for Children and Youth Affairs, the Government, Ireland and the Attorney General - appealed the High Court's finding to the Supreme Court.
Mr McCrystal said while he did not have a problem with the Government campaigning for a Yes vote, he objected to €1.1m being spent on the information campaign which ran parallel, but separately, to the one being conducted by the independent Referendum Commission.
Today the Supreme Court - comprised of the Chief Justice Mrs Justice Susan Denham, presiding, who is sitting with Mr Justice John Murray, Mr Justice Adrian Hardiman, Mr Justice Nial Fennelly and Mr Justice Donal O'Donnell - gave its decision in a matter which was dealt with "as a matter of urgency".
The Chief Justice said the court was satisfied there were extensive passages in the booklet and on the website that did not conform to the McKenna principles. This material the court ruled contained a misstatement, admitted by the State to be such, as to the effect of the referendum.
However, not all of the website or booklet were in breach of the McKenna principles, and given their overall structure, the court said it would not be appropriate to redact either.
The court said it was granting 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's) Bill in a manner that was not fair, equal or impartial".
The court did not consider it appropriate or necessary to grant an injunction ordering the state parties to rectify its information campaign as the court assumed that the state parties would cease distributing and publishing the material.
The court will outline its full reasons for its decision next month.
In his appeal, Mr McCrystal, represented by Richard Humphreys SC, argued the High Court erred in holding that the material his client complained of was balanced and neutral. Counsel also argued that if that judgment was allowed stand the principles as set out in the McKenna judgment "would be deprived of any substantial bite, reality and meaning as far as citizens are concerned".
The State, represented by David Hardiman SC, has opposed the appeal. He argued that the material, which must be looked at in the broadest of terms, does not breach the McKenna judgment in a manner that would render the Government spending public money on an information campaign unconstitutional.