Child referendum case dismissed


The Supreme Court will next Tuesday begin hearing an appeal against the dismissal of a challenge to the spending by the Government of some €1.1 million in public monies on an allegedly one-sided information campaign about the Children’s Referendum next week.

The president of the High Court Mr Justice Nicholas Kearns, in dismissing a challenge brought by engineer Mark McCrystal, today held the campaign run by the Government contained material that was neutral, balanced and had the primary aim of informing the public about the forthcoming referendum.

Nothing in the Government's campaign, the judge added, plainly “favoured a particular outcome that was unconstitutional or wrongful”.

Mr McCrystal claimed the Government is using information contained in a booklet, website and advertising campaign which is designed, intended and likely to promote a particular outcome in the referendum on November 10th. The Government’s information campaign
was separate to one from the independent Referendum Commission.

Mr McCrystal, of Kilbarrack Road, Dublin, claimed the State is acting in breach of a 1995 decision of the Supreme Court known as the McKenna judgment, requiring referendums to be explained to the public impartially. He had no objection to the State arguing for a Yes vote, but said it cannot use public money to do so.

Yesterday, when Mr McCrystal’s appeal was mentioned before the Chief Justice Ms Susan Denham, she fixed next Tuesday for the hearing of the appeal.

In his action against the Minister for Children and Youth Affairs, the Government, Ireland and the Attorney General, Mr McCrystal sought a declaration that the respondents are not entitled to use public money on a website, booklet and an advertising campaign concerning the referendum. He also sought an injunction requiring the State to remedy the situation.

The State argued that none of the material being used by the Department of Children and Youth Affairs “clearly disregarded” the principles of the McKenna judgment.

In his ruling dismissing Mr McCrystal’s action, Mr Justice Kearns said the material used in the Government’s campaign did not breach the McKenna judgment, and rejected claims the material complained of advocated a Yes vote.

He said there was no basis for the court to intervene. “I am satisfied that scrupulous care was taken by the State parties to at least try to avoid falling foul of the McKenna judgment in the information contained on its website and booklet."

The judge said any breach of the McKenna ruling must be “blatant and egregious” and not something that mires the court in assessing the merits of the substantive issues or has “every scrap of information” from the Government being scrutinised.

Such an approach would place the courts in a situation where they would be called upon “to engage in some exercise of hyper-zealous vigilance of every piece of government information” in virtually every referendum.

This, the judge added, was not what what the Supreme Court intended as a consequence in the McKenna judgment.

If any of the material complained of is suggestive of a slight bias in favour of a particular outcome, the error was not so blatant or egregious as to warrant an intervention by the court, he added. Granting an injunction “when more than 66 per cent of the booklets had been delivered” would be “practically pointless”.

The judge rejected claims that logos, images of children used on the Government's website, or an emotionalised emphasis being placed on children had the effect of promoting one side over another.

These elements, he continued, could not be viewed as an emotional appeal to vote Yes, and were neutral. Adverts placed by the Government in the media, he added, could not be interpreted as swaying votes in any way other than to encourage people to vote.

He preferred expert evidence given on behalf of the State that said the Government’s campaign was designed to inform the public and encourage people to vote, and did not advocate a particular outcome.

He warned that if future referendum campaigns are conducted the same way as this one, where information campaigns are run both by the government and the Referendum Commission, similar cases to this would be brought before the courts.

This could be avoided if an expanded Referendum Commission is established promptly and provided with an adequate budget. This would fully inform the public in advance of any poll - and as surveys show the public would prefer to get information from an independent and neutral source, he added.

Mr Justice Kearns awarded the State parties their costs in the action.