Government in disregard of McKenna principles
McCrystal v the Minister for Children and Youth Affairs, the Government, Ireland and the Attorney GeneralNeutral citation: 2012 IESC 53
Judgment was delivered on December 11th by the Chief Justice, Ms Justice Susan Denham, with Mr Justice John Murray, Mr Justice Adrian Hardiman, Mr Justice Nial Fennelly and Mr Justice Donal O’Donnell concurring.
Material published by the Government in advance of the children’s referendum favoured a Yes vote, was not fair, equal or impartial and was in clear disregard of the McKenna principles which outlined the limits imposed by the Constitution on what the State may do in a referendum.
Mark McCrystal had made an application to the High Court in October claiming the launch of a public information campaign run by Minister for Children and Youth Affairs Frances Fitzgerald, in advance of the children’s referendum, was in breach of the Constitution.
He believed public money, €1.1 million, had been spent on a biased campaign in favour of the 31st amendment to the Constitution. This was against the McKenna principles, as outlined in McKenna v An Taoiseach (no 2) (1995) IR 10, a previous challenge to the legality of a government referendum campaign. He sought an injunction to stop expenditure of public monies on material to promote a Yes vote and to restrain the distribution of the material.
High Court president Mr Justice Nicholas Kearns found against Mr McCrystal on November 1st. He said the Government’s material was neutral and balanced and did not breach the McKenna principles,
An appeal was taken to the Supreme Court. The grounds included that Mr Justice Kearns erred in holding that images of children used on the material were neutral, erred in finding that the material did not advocate a particular outcome and that the advertising did not sway voters.
Ms Justice Denham said the test to be applied to trigger court intervention was established in McKenna and was whether “the circumstances are such as to amount to a clear disregard by the Government” of the McKenna principles. It was “an objective test”. The High Court had stated that the breach must be “something blatant and egregious”, but this was not correct.
The chief justice outlined principles drawn from the McKenna case. These were that the Government was entitled to campaign for a Yes vote by any method, but not using public funds, and any information disseminated by the Government must be “equal, fair, impartial and neutral”.
Members of the Government were entitled to advocate in “their personal, party or ministerial capacity” for a Yes vote and could use their State transport and avail of media to put forward their view.
The McKenna judgment found the right to equality applied to the referendum process, Ms Justice Denham said, and spending public money on one side of the referendum put the voting rights of one citizen above another.
The judgment also found it was “an interference in the democratic process” to spend public money on one side and the Government had to observe fair procedures. “The scales must be held equally between those who support and those who oppose an amendment to the Constitution.”
The right to freedom of expression also meant public funds should not be used to fund one side.