No provision in law to allow for new poll date

ANALYSIS:The Government was aware as early as October 31st that there was an error in the information it published about the children's referendum on its website and in a booklet but did not correct the error on the website until earlier this week.

The Department of Children confirmed yesterday it was made aware by the Attorney General’s office on that day that the words “continue to” in the context of powers of the State in relation to children was an error and had acknowledged it in the High Court the same day.

Yesterday, the solicitor instructed by Mark McCrystal for his challenge to the information campaign criticised the delay in the Government amending the website, notwithstanding its knowledge that it was an error.

Solicitor Colm MacGeehin said the website was corrected only on Tuesday this week, the second day of the Supreme Court hearing.

“We checked the website on Monday and the error was still there . . . It was not corrected until just before the court resumed on Tuesday,” he said.

The Government said the referendum would go ahead notwithstanding yesterday’s Supreme Court decision.

Under the Referendum Act 1994, once an order to hold such a poll is made, the only circumstance in which it can change the date is if a general election is called. There is no provision in the legislation to allow the order to be amended.

A senior civil servant who was seconded to the Department of Children to help oversee the process said in an affidavit to the High Court that great care had been taken to ensure the information campaign was not biased or was seen to be supporting a particular outcome.

Gerard Angley, a first secretary at the Department of Foreign Affairs, said the department had observed all the strict protocols and procedures in its interaction with its own legal adviser and the Attorney General’s office.

“The department had also held a specific meeting in early August to brief officials, advisers and relevant consultants on the McKenna judgment.The extremely thorough checking and vetting process around the booklet text – above all legally, including from a McKenna perspective – was applied in full throughout. I have no doubt that the same procedure applied to the website, which went live prior to my temporary assignment,” he said.

In his affidavit, Angley defended the decision to have a separate Government information campaign in addition to that of the Referendum Commission. Of the €3 million allotted to the campaign, €2 million went to the commission and a little over €1 million towards the Government’s own campaign.

A spokeswoman for Minister for Children Frances Fitzgerald added: “It is standard that the Government would provide an information campaign and it is entitled to launch an information campaign. It cannot verge into advocacy. The Government has been criticised for not running strong information campaigns in the past,” she said.

MacGeehin said that despite Minister for Justice Alan Shatter’s promise to revisit it, the principles of the McKenna judgment were well established elsewhere.

“The principles are very simple and the public has no difficulty understanding them. Essentially, it is that you cannot use public funds for propaganda,” he said.

There was general consensus from both sides that the result of the referendum will not be challenged. Former senator Des Hanafin challenged the result of the divorce referendum, which was passed by only 9,000 votes, on the grounds the government had spent £500,000 on the vote. The Supreme Court ruled evidence was needed to show that more than 9,000 voters shifted their allegiance on the basis of the campaign, something not possible given that the ballot was a secret one.