Doubts over Ministers' claims on AG advice
Freedom of Information (FoI) documents have cast doubt on some Fine Gael Ministers’ claims that the Attorney General did not provide advice that the Government’s information booklet on the children’s referendum was flawed.
Two days before polling in the referendum on November 10th last, the Supreme Court ruled the booklet was “not fair, equal or impartial”.
On the eve of the vote, Minister for Transport Leo Varadkar joined Minister for Children Frances Fitzgerald in confirming that advice from the office of the Attorney General Máire Whelan, a Labour appointee, had informed the content of the booklet. “Obviously that advice was wrong, but legal advice can be wrong,” Mr Varadkar said.
Shock to Government
Voters approved the amendment to the Constitution but the scale of the No vote and low turnout came as a shock to the Government.
FoI documents show an important mistake on page nine of the draft booklet was corrected by a Department of Children official on the day changes were recommended by the Attorney General’s office – September 28th last – but it reappeared in future drafts. The use in the booklet of the phrase “key requirements will continue to be as follows”, which indicated no change would take place as a consequence of the referendum passing, should have read “key requirements will be as follows”.
The Supreme Court ruled that a “significant” error in the booklet, which listed key requirements that would “continue” if the referendum was passed, was a “crucial inaccuracy”. In a series of emails uncovered by FoI, department officials said they were made aware that the words “continue to” were considered an error by “AG’s” on October 31st last, when it was acknowledged in the High Court. It was described as “a genuine error made in the transposition of proposed changes to the draft text during the drafting process”.
Dublin engineer Mark McCrystal argued in the High Court that the Government’s campaign breached the McKenna principles requiring publicly funded information about a referendum to be presented in a balanced way. The High Court found against Mr McCrystal on November 1st, but Mr McCrystal won a Supreme Court appeal.
Under FoI, Mr McCrystal’s solicitor Colm MacGeehin subsequently sought from the Department of Children all records relating to the misstatement in the booklet.
The documents show the error in numerous drafts had gone unnoticed by Ms Fitzgerald, her special advisers and senior Department of Children officials including the Secretary General.
A draft containing the error was sent to the Attorney General’s office on September 27th. An attachment to an email sent the next morning containing “tracking changes” from the Attorney General’s office and the Department of Health’s legal adviser could not be released under the provisions of the FoI Act.
However, the words “continue to” were crossed out for the first time in a draft annotated the same day by the Assistant Secretary at the Department of Children Elizabeth Canavan. The words “continue to” reappeared in all future drafts released under FoI.
Despite acceptance of it by the respondents on November 1st, they continued to distribute the booklet. The word “continue” was removed from the website on November 7th. The correction was not brought to the attention of the public. Costs remain to be decided in the case.