The children's referendum ruling was short but there's no doubting its import

Analysis:Attorney General will now have to explain where it all went wrong

On Thursday after the Supreme Court delivered its thunderbolt that struck down the Government’s information campaign on the children’s referendum, senior spokespeople from the Coalition were able to hide behind the fact that the court had decided to give a short judgment without setting out its full reasoning, beyond a 500 word precis.

But short though the ruling was on Thursday, there was no doubting its import.

December 11th, when the full judgment is published, will be a deliverance day for the Government with potentially serious questions for the Minister for Children Frances Fitzgerald, Attorney General Máire Whelan, and for the Government as a whole.

The chronology of the crisis had its beginning in the failed referendum campaign of October 2011. Following the failure to give parliamentary committees more power, the Government commissioned research to find out why people voted against the measure. One of the key findings was that voters felt there had been a lack of accessible information despite the presence of the Referendum Commission and its information campaign.

The Government responded by launching its own separate and parallel information campaign for the stability treaty which included a booklet, a website and a Twitter account that alerted people to new material and developments. The strategy was a success and it was decided early in the summer that its “template” would be used for the children’s referendum.

In July, senior officials at the Department of Children met senior officials from the Department of the Taoiseach. The key issues discussed at the meeting was the McKenna judgment.

The High Court was told the campaign had fully adhered to the “strict communications protocols and procedures requiring consultation . . . with the in-house legal adviser and/or the Attorney General’s office”. Clearly, the Supreme Court took a different view.

Scrutinising

The Department of Children and the AG’s office were fully involved in scrutinising the information. What is not known is the extent of the personal involvement of Fitzgerald or Whelan in the process. Will either, or both, be on the hook if the full Supreme Court rulings contain the withering criticisms that some now expect?

While it is clear that the campaign was cleared by the Department of Children and the AG’s office, as one lawyer familiar with the case said: “It is very hard to figure who was involved and what was meant when they said they got clearance from the AG. Was that the office, or the AG herself?”

The passage of the document followed a standard route. It was first vetted and changed by the internal legal adviser in the Department of Children and the amended document was sent to the office of the AG, where it was signed off. Said the source: “It’s impossible to say what the extent of the involvement of the AG was. But then that makes little difference. It is the corporate responsibility of the line Minister or the AG or the Government collectively to take responsibility. There’s no question of moving away from that . . .”