A tale of two Supreme Court rulings against government referendum publicity campaigns

On November 17th, 1995, the Supreme Court found the then Fine Gael-Labour government was acting unconstitutionally in spending public money to support one particular outcome in the second divorce referendum.

The case arose from a challenge by Patricia McKenna to the government’s plan to spend £500,000 on publicity and advertising activities encouraging a Yes vote.

The court found such expenditure amounted to a breach of the constitutional rights to equality, freedom of expression and a democratic process in referendums and put the voting rights of citizens favouring a constitutional amendment above the voting rights of those opposed.

The judgment also said the government had a duty to spend money on giving information to the public about the implications of a constitutional amendment and to explain the referendum.

The implications of the McKenna judgment were both immediate and long term.

The judgment came just eight days before polling. It hobbled the government’s effort for a Yes vote and was a shot in the arm to the No campaign. However, it also set the non-government Yes campaign alight.

Those of us involved at the time in the Right to Remarry campaign vividly recall how the phones hopped and the funds flowed rapidly into campaign headquarters in the days after the McKenna judgment. Up to that point it had been assumed the amendment would be passed; all of a sudden it was in jeopardy.

The implications of this week’s McCrystal judgment, in which the Supreme Court reaffirmed the McKenna principles, will also have short and long-term significance.

It is an embarrassment for the Government that 48 hours before its flagship constitutional referendum on children’s rights, the Supreme Court has unanimously cited it for unconstitutional behaviour in the content of its information campaign.

On Thursday a summary judgment on McCrystal’s application was published in the name of the Chief Justice; full judgments will be published on December 11th. The detailed Supreme Court reasoning will make fascinating reading, not least because it seems to be based on entirely different findings on the facts from those made by the president of the High Court, Mr Justice Kearns, when he rejected McCrystal’s case.

Bona fides

In the wake of Thursday’s judgment, the Government argued it had acted with bona fides. It had the benefit of legal advice on the content of its documentation and on whether the text infringed the McKenna judgment.

In light of the judgment this advice has been shown to have been wrong. However, the Government can hardly be said to have deliberately set out to flout the McKenna judgment, when the same material was found by the High Court last week to be “neutral, balanced and [having] the primary aim of informing the public”.

The Government’s mistake was in not leaving the information function to the Referendum Commission alone. In this referendum, as in May’s fiscal treaty referendum, the Government decided to take about a third of the Referendum Commission budget and use it on two million information booklets and a website published directly by the relevant department.

When it first adopted this approach in the fiscal treaty referendum, the move was put down by some to pique, coming as it did after some Ministers had sharply disagreed with interpretations advanced by the then Referendum Commission chaired by Judge Bryan McMahon during the Oireachtas inquiries referendum.

In seeking to run its own information campaign in advance of and alongside that run by the Referendum Commission, the Government was always going to expose itself to the risk of legal challenge.

Although rejecting McCrystal’s claim, Mr Justice Kearns did suggest that an “expanded Referendum Commission, established at an earlier stage and with an adequate budget” could fulfil the necessary function of informing the public without taking these risks.

Legal challenge

The implications of the McCrystal judgment may include a legal challenge to the outcome of the children’s referendum itself. Assuming that today’s referendum passes, there is every possibility that a petition will be launched seeking to set aside the result.

Any such petitioner is likely to argue that the Department of Children’s publicly funded information campaign amounted to an interference with and/or an irregularity in the conduct of the referendum.

This was the argument made by the anti-divorce campaigner Des Hanafin when he challenged the outcome of the 1995 referendum. Almost 1.63 million people voted in that divorce referendum and the Yes side won by just 9,114 votes. At the time of the McKenna judgment the government had already spent half of the £500,000 on its unconstitutional publicity and advertising campaign explicitly advocating a Yes vote.

In the hearing of Hanafin’s petition over several days, evidence was heard from experts on opinion polling and factors influencing voting patterns, advertising and the intentions of the electorate.

At the end of this evidence a three-judge division of the High Court found it had not been established in the evidence adduced that the government’s publicly funded publicity campaign had had any ascertainable influence on the electorate when they had cast their votes.

When Hanafin appealed, the Supreme Court found that there was no basis on which it could interfere with the High Court’s finding that the government’s advertising campaign had not materially affected the result of the referendum.

The outcome of any challenge to the children’s referendum will depend on the evidence and, more importantly, on how close the result is. The precedents and the polling data both suggest, however, that anyone seeking to challenge the result of today’s referendum will face an uphill task.