THE SUPREME COURT
Appeal No. 486/12
The Minister for Children and Youth Affairs, The Government of Ireland, Ireland and the Attorney General
Judgment of Mr. Justice O’Donnell delivered the 11th day of December 2012
1 Although this case occupied these courts over a period of just over a week in November of 2012 during the campaign on the 31st amendment to the Constitution (“The Children’s Referendum”) its roots go back almost 17 years to an earlier and more controversial referendum. The 24th of November 1995 was the date set for the Referendum on the proposal to remove the constitutional ban on divorce from the Constitution. The Government of the day had decided to do two things: first, to provide factual information in a balanced way in relation to the proposal; and second, and controversially, to spend what was then IR£500,000 promoting a positive result in the Referendum. Thus at the very outset a distinction was made (and was capable of being made by the Government) between neutral information impartially presented, and partisan advocacy. On the 27th of October 1995, the High Court (Keane J. as he then was) had commenced hearing an application for an injunction, brought by Patricia McKenna then an MEP, to restrain the use of public funds in the Referendum for the purposes of promoting a positive result. As is common in urgent matters the trial of the injunction application was, by consent, treated as the trial of the action. On the 31st of October Keane J. delivered an ex tempore judgment dismissing the claim. The plaintiff immediately appealed by a notice of appeal filed on the 2nd of November 1995. The appeal was heard on the 8th and 9th of November. A further eight days later, the Supreme Court delivered five separate judgments upholding the plaintiff’s claim by a majority of four (Hamilton C.J., O’Flaherty, Blayney, and Denham JJ.) to one (Egan J.): McKenna v. An Taoiseach (No.2)  2 I.R.10 (“McKenna No.2”). The fact that the case had to be heard and the decision required to be rendered during the process of a hotly contested referendum campaign was undoubtedly dramatic and led indeed to an unsuccessful attempt to overturn the outcome of the Referendum (Hanafin v. The Minister for the Environment and others  2 I.R. 321) and a challenge to the broadcasting policy employed during that campaign (Coughlan v. The Broadcasting Complaints Commission and others  3 I.R.1).
2 A necessary part of the presentation of most cases involves time for preparation, the obtaining of discovery, consideration of documentation, the marshalling of evidence both factual and expert in the light of that evidence, the exchange of reports, the oral presentation of that evidence, and cross-examination which has the benefit of rigorous preparation. There are of course cases where events will simply not permit even a compressed timescale for preparation because justice demands that a decision be rendered almost immediately, and in such cases the courts are obliged to make the best they can of the limited materials that are available. Often the best a court can do is to seek to resolve the major issues in dispute which have given rise to the litigation, as best it can.
3 The decision of the Supreme Court in the McKenna No.2 case is well known. It is one of those few decisions which are recognisable by name and referred to in public discussion. It would be idle to pretend that it has not attracted some critical comment, although much of the commentary (such as it is) seems to emanate from the fields of politics, and general commentary, rather than from legal analysis, and seems to address the question whether the outcome of the McKenna No.2 case is a desirable one from an administrative perspective, rather than whether it follows from the Constitution. The first question is not a matter for this or any other court: the second question simply did not arise in this case. In this regard I gratefully adopt the observations of Fennelly J. at paragraph 18 of his judgment: “It is of the first importance to emphasise from the outset that this Court has not been invited, by either party to the appeal to reconsider, to set aside to any extent, to re-interpret, distinguish or to qualify the decision of the Court in McKenna v. An Taoiseach.”
4 In the aftermath of the McKenna No.2 decision the opportunity was taken, wisely, of formalising the information provision function through the mechanism of the Referendum Commission established in 1998. Initially the Commission was charged with providing a statement of the case on both sides of the argument, in the same fashion as the uncontroversial and balanced information campaign conducted by the Government in The Divorce Referendum. In 2001 that requirement was removed. In every subsequent referendum, a Referendum Commission has provided neutral information and statement of the issues the subject matter of the Referendum. The Commission is chaired by a judge or a retired judge. Its composition is defined by statute. It normally proceeds by retaining advice, publishing a comprehensive booklet, engaging in an advertising campaign, and conducting information sessions. In carrying out its functions the Commission is of course subject to the McKenna No.2 decision. No complaint has been made about the performance of the Referendum Commission in respect of the Children’s Referendum.
5 In the run up to the campaign on the Children’s Referendum, it appears that the Government decided to conduct an information delivery campaign in parallel to the Referendum Commission’s performance of its functions. This had been a step taken to some degree and without challenge in the immediately preceding Referendum concerning the adoption of the fiscal treaty, but was undertaken here on a more substantial scale. Thus, of the €3.0 million fund for the purpose of the Referendum, €1.9 million was provided to the Referendum Commission, and €1.1 million allocated to the Government’s information campaign. It appears that the bulk of this latter sum was spent on obtaining public relations advice, and devising a campaign which involved the establishment of a website, the publication and delivery of a booklet, and the purchase of advertisements.
6 On the 8th of October 2012 the Minister for the Environment fixed the 10th of November 2012 as the polling date for the Children’s Referendum. The Referendum Commission, which had only recently been established, published an information booklet on the 16th of October 2012. The Government, also through the agency of the first named respondent, embarked upon its own information campaign. The plaintiff, Mr. Mark McCrystal, became concerned about the information campaign having called upon the first named respondents to cease the campaign without success and he commenced proceedings, almost immediately, on the 18th of October 2012. Those proceedings were dealt with in the High Court with considerable speed. Once again the trial of the injunction application was treated as the trial of the action. On the 1st of November the President of the High Court rejected the plaintiff’s claim and delivered a judgment prepared overnight, for the purposes of facilitating an appeal. This appeal was heard on the 6th of November, and the following day. In view of the imminence of the Referendum, the Court announced its decision to allow the plaintiff’s appeal. I now set out my reasons for concurring in that decision.
The Information Campaign
7 In general, the information campaign conducted on behalf of the Department of Children and Youth Affairs, consisted of three elements: a website, a booklet to be distributed to all households, and some television and radio adverts. They were, and were intended to be, linked both in theme and content. The website was established first. The booklet was completed after these proceedings were threatened and it was noticeably less forthright than the website. It is to be inferred perhaps that the material in the booklet was toned down in light of the possible challenge. The advertisements had less content again and did little more than use affecting voices of children of varying ages to repeat the message that “It’s All About Them But It’s Up To You”. For present purposes the website material is undoubtedly the most important. If, as the defendants contended, this material was consistent with the McKenna No.2 judgment, then it was unlikely that the booklet or the advertisements whether separately or collectively, could tip the balance.
The Website and its Content
8 The website home page was entitled “childrensreferendum.ie”. It is true that on the bottom right hand side of the page there was a stylised harp logo and the words “Department of Children and Youth Affairs”. Nevertheless it is, I think, fair to say that the website material did not by any means emphasise its source as the promoting Government department, nor was there any cross reference or link to the Referendum Commission, or indeed any mention of the existence or function of that body. The heading on the home page of “Children’s Referendum” included an image in silhouette of three young children holding hands. The page also contained a picture of the Minister for Children and Youth Affairs with young children. At the top centre of the page there was a box headed “Why do we need this referendum?” and below it another box headed “What will change if the referendum is passed?”. The text in the box under the heading “Why do we need this referendum?” was as follows:
The text under the heading “What will change if the referendum is passed?” was:
“The Referendum forms an essential part of the Government’s child protection reforms as well as seeking to address existing inequalities in adoption.”
This latter formulation was reproduced in boxes running down the left hand side of the page with the separate headings of “Protecting Children”, “Supporting Families”, “Removing inequalities in adoption” and “Recognising children in their own right”. Each of these individual boxes, and the boxes “Why do we need this referendum?” and “What will change if the referendum is passed?” permitted the viewer to click through and obtain more material on that topic. The home page also contained a link to a “FAQs” section, and also fact sheets which could be accessed on adoption, foster care and the history of the Children’s Referendum.
“This referendum is about protecting children, supporting families, reducing inequalities in adoption and recognising children in their own right.”
9 For reasons for which I hope will become apparent, I believe it is unnecessary to analyse the information contained on the website, in the booklet and in the advertisements in exhaustive detail. In particular in relation the website, I consider that two things would become readily apparent to anyone who scrutinised the material. First, it was clearly presented in a fashion which favoured passage of the Referendum. Second, it could not readily be described as factual information. I do not think that any fair-minded reader would consider the content either neutral or impartial on the question of the Referendum. Nor indeed did the defendants strenuously contend that it was: the main thrust of the defence was to argue that strict impartiality was neither required nor possible, and that the material was not so tendentious as to infringe the test in McKenna No.2 as interpreted by them.
10 The question “Why do we need this referendum?” might prompt a pedantic but correct reply, that it is the only method of changing the Constitution to include the proposed provisions. But the answer given by the website was, as previously cited;
Apart from the fact that this response more naturally answers a rather different question: why do we need to pass this referendum?, the text certainly suggests that without passage of the Referendum desirable child protection measures cannot be taken. The answer to the question “What will change if the referendum is passed?” is clearly to set out broad themes and to link to the boxes on the left hand side of the page, all of which clearly painted the proposal in a positive light. The protection of children, the support of families, the removal of inequalities and the recognition of children in their own right, are all matters that would normally be recognised as desirable objectives. It is hard to see how anyone who accepted that the Referendum achieved these objectives would consider voting against it. An advocate of a yes vote might well use language such as this, but I doubt very much that he or she would consider it was factual information rather than a statement of reasons to support the Referendum.
“This referendum forms an essential part of the government’s child protection reform as well as seeking to address inequalities in adoption.”
11 The box “Protecting Children” contained a link to further detailed text including the following:
This is powerfully suggestive that the passing of the Referendum would promote speedy and effective action for the protection of children in clear cases of abuse and serious risk, and seems to assume that the existing constitutional provision would inhibit such action. The text concluded with the following paragraph:
“Responding to abuse must be rooted in a simple premise, which the Referendum supports, that when there is clear evidence of abuse, or serious risk to the safety or welfare of children, child protection services must be able to act quickly and effectively.”
Not only does this suggest that passing the Referendum is desirable, indeed fundamental, but it appears to relate the passage of that Referendum to a series of matters which, while self-evidently desirable, were not clearly (or at all) connected to the Referendum proposal.
“Passing this Referendum will become the fundamental backdrop for the Programme of Change for Children. As part of this ongoing programme, Government is bringing in new laws on the reporting of child abuse as well as reforming Ireland’s child protection services, including separating them from the HSE, and establishing a dedicated new Child and Family Support Agency.”
12 The section on “Supporting Families” related to what was obviously a contentious issue during the Referendum debate. Persons opposed to the amendment argued that it undermined the position of families. Some of those supporting the amendment contended that the protection afforded by the existing Constitutional provisions to families inhibited effective child protection in cases where, it might be said, the families did not deserve or merit such protection or support. However, it was suggested by the website that the Referendum was about “Supporting Families”. That text contained the following passage:
This passage clearly favours passage of the Referendum and in a manner which could not be described as imparting factual information. Instead it seeks to neutralise, if not positively appropriate for the Yes side, an argument marshalled against the proposal. A related heading is “Standing Up For Parents”. This stated:
While this might properly be considered information, it is hard to see how it relates to the amendment although clearly the implications of the heading and the context is to place it together with other desirable objectives such as “Strengthening Our Child Protection Laws” and “Implementing Long Needed Reform”.
“In response to concerns from parents, the Minster for Children and Youth Affairs approached Retail Ireland and invited them to draft responsible retailing guidelines on the sale of childrenswear. The Minister published these voluntary guidelines this summer. They address increasing concerns over the sexualisation of children and childhoods, and will play an important and constructive role in informing future decision-making by retailers.”
13 One of the frequently asked questions was “Why do we need this referendum?”. The text then set out the response:
The very formulation of the question is revealing. It simply assumes that the proposed change is necessary. It is something which “we” - the People of Ireland - need. The only question is why that is so. The response suggests that the existing text of the Constitution is out of date and does not reflect the shared value of the People in relation to ensuring the protection of all our children. This is a powerful statement in favour of the passage of the Referendum. Indeed, during the course of argument, counsel for the State parties was asked by a member of the Court whether, if the heading was recast to “Why do we need to vote yes?”, it would be necessary to make any consequential change to the subsequent text. That is a useful, and revealing test. The entire text is as follows:
It seems clear that no change to the text would be necessary if the title were changed to “Why do we need to vote yes?”.
“Our Constitution is the foundation for al the State’s laws and policies. However, it does not provide an express statement of rights for children.
The Government is bringing forward this Referendum to give the Irish People the opportunity to change this. This Referendum will give people the option of updating the Constitution to reflect our shared value in relation to ensuring the protection of all our children. The proposed Amendment is intended to give firmer recognition to the rights of children under the Constitution and to affirm the State’s obligation, so far as practicable, to protect those rights.
There have been seventeen major reports on child protection failings in Ireland since 1970. The Government now has a Programme for Change for Children and is bringing on new laws in the reporting of child abuse and safer practices for organisations, where children spend time, and is also reforming Ireland’s child protection services by transferring them from the HSE and establishing a dedicated new Child and Family Support Agency. These reforms focus on intervention to ensure the safety and welfare of children is protected and to ensure that child protection services can respond appropriately to all child protection concerns.
Passing this Referendum will put children’s needs at the centre of decision-making and will facilitate changes to adoption legislation.”
14 The website concluded with a reference to the sponsoring minister, the Minister for Children and Youth Affairs, and her speech launching the website which recorded that the launch took place after the 31st Amendment of the Constitution (Children) Bill 2012 completed all stages of debate in the Oireachtas “with the full support of TDs and Senators.” The Minister commented on the “wording agreed by the Oireachtas” as follows:
These statements by the Minister leading the campaign for the adoption of the proposal clearly relate back to the themes established on the first page of the website. In my view, it is self-evident that these slogans are intended to present the Referendum in a positive light, and to encourage support for it. If there were any doubts about that however, then it is useful to consider the text of the Fine Gael website which of course, unambiguously called for a yes vote, as indeed it was fully entitled to do. It contained a speech by the same Minister on an occasion described as “the launch of Fine Gael’s campaign for a Yes vote in the Children’s Referendum” and therefore on an occasion of unequivocal support for passage of the Referendum. It is revealing how that speech, which was clearly and properly a forceful advocacy of a Yes vote, made repeated use of the same themes and slogans focussed upon in the website campaign:
“I would encourage everyone to read the wording on the information website www.childrensreferendum.ie. If you do, you will see that it is very clear in its objective. It’s about treating all children equally, in particular by removing inequalities in adoption. It’s about protecting children from abuse and neglect. It’s about supporting families; and it’s about recognising children in their own right”.
The only difference between the message of this speech and that of the website is that this speech contains an explicit exhortation to vote yes, something the defendants regard as critical, and to which I will return. The Minister then returned to the theme:
“Child protection concerns haven’t suddenly gone away. The sad reality is they never probably will.
But that doesn’t mean we shouldn’t do all we possibly can to protect children. That’s why we should vote Yes on Saturday November 10th when, after 19 years of talk, the Children’s Referendum is finally held.
A Referendum which is about protecting children from abuse and neglect.
It’s about supporting families by re-affirming and underpinning early intervention in family support services, to protect children in their homes.
It’s about treating all children equally in particular by removing inequalities in adoption.
It’s about recognising children in their own right.” (Emphases added|)
That was a message repeated more than once during the speech, and is of course the theme of the advertising campaign. The speech therefore illustrates not only how compatible the website material was with the yes campaign, but also a significant blurring of the distinction between the Government’s information campaign and the Yes campaign of the Government parties. Not only is this demonstrably not neutral, it is not in any real sense information, at least in the sense of factual information as discussed in McKenna No.2. It is noteworthy that the Referendum Commission, seeking to perform the same task by the same constitutional standard, did not use language or presentation which was in any way similar in tone.
“But this Referendum matters.
Because Every Child Matters.
But they don’t get to decide. We do. It is about them, but it’s up to us.”
15 It was agreed by all parties that the booklet was similar in style and presentation to the website, but more neutral in its tone. It was finalised and issued after these proceedings were commenced. It did however contain one significant matter. In what was described as an “article by article guide “ to the proposed amendment the booklet dealt with the replacement of Article 42.5 and said:
In fact there was a clear error in this statement. The bullet points set out components of the proposed new amendment. It was accordingly wrong to suggest that these were merely the maintenance or continuation of existing requirements. The error was pointed out by Mr. McCrystal in his affidavit of the 23rd of October. It was acknowledged as an error by the State on the first day of the hearing in the High Court but no steps were taken until the second day of the hearing in this Court to correct it. In the meantime booklets continued to be distributed to houses around the State. While the impact of any such mistake might well be debated, the attitude to it is revealing. If the booklet had been prepared on behalf of an independent body concerned with neutral delivery of factual information and with maintaining its reputation as an impartial provider of accurate information, it seems likely that the discovery of an error like this and its correction would have been a matter of much greater concern.
“It will continue to be the case that the power given by the Constitution in this area can only be used by the State in very well-defined circumstances. Key requirements will continue to be as follows:
• the State can only make use of the power “in exceptional cases”;
• a failure of parental duty towards the child must exist – “where the parents, regardless of their marital status, fail in their duty towards their children”;
• any failure must involve harm or risk to the child’s safety or welfare – “to such extent that the safety or welfare of any of their children is likely to be prejudicially effected”;
• the actions of the State must be in balance with the harm or risk to the child that needs to be addressed- “by proportionate means”; and
• the actions the State can take must be set out in law – “as provided by law”.” (Emphasis added)
16 The plaintiff swore three affidavits on his own behalf. He also obtained affidavits from three witnesses with a significant range of expertise and views. The well known writer John Waters swore two affidavits. He freely admitted that he was opposed to the amendment and campaigned against it. However he also explained that he had 30 years experience of the media and in the field of communications and was familiar with many techniques of persuasion that are employed in public communications and the manner in which Government’s use language in an attempt to persuade, as opposed to inform. While acknowledging his opposition to the amendment he said he was approaching his examination of analysis of the material not in terms of the merits of the amendment but solely in terms of the net issue of “whether the material represents a neutral and dispassionate conveying of the information or whether it is designed or likely to favour one side rather than other.” He conducted a careful, detailed, and in my view illuminating, analysis of the passages in the website including those identified above. He considered the booklet more neutral but still favouring a yes vote, and considered that the advertisements involved the delivery of subliminal messages which were at least favourable. Of the advert he said the following:
17 An affidavit was sworn by Lyn Sheridan, a director of Aiken Public Relations Company in Belfast, Northern Ireland who has more than 20 years experience working on behalf of public and private sector clients. She emphasised that she had no role or involvement in the amendment and no particular position on it and no prior dealings with any of the parties to the proceedings. Having studied the Government’s communication she said that she found the tone to be “partial unbalanced and persuasive of a “Yes” vote.” In relation to the website she said that the links on the left hand side of the screen of the website; “Protecting Children”, “Supporting Families”, “Removing Inequalities from Adoption”, were “all propositions supportive of the amendment rather than impartial factual information.” She concluded that “The Government communication regarding the Referendum had the hallmarks of an integrated marketing campaign for which a brand had been carefully, deliberately and, I would expect, professionally devised and managed” and that had she as a PR practitioner been asked to prepare materials for a campaign in favour of a yes vote she would have prepared materials similar in content to those of the Government campaign.
“The use of voices of children in the radio advertisement – in particular of Sara, who is “twee and a quatah” – certainly does not amount to “information”, but more than that cannot but be seen as an attempt to manipulate the emotions of the public. The use of children’s voices accompanied by the slogan “It’s all about them, but it’s up to you”, suggests that the children of Ireland are imploring voters to help them, if not indeed to rescue them from some unspecified situation, implicitly a difficult one. The advert makes no attempt to deal with any of the issues relating to the amendment, but relies entirely on the emotive use of the children whose voices are heard.”
18 Finally, Mr. McCrystal submitted an affidavit from Colm Kenny, a Professor of Communications in Dublin City University. For his part, he explained that he was personally in support of the amendment. Again he analysed the information in a careful and detailed way and concluded that “these information sources that were prepared by or for the Department of Children and Youth Affairs and that relate to the proposed Article 42A not only provide certain objective information to the public about that proposed amendment to the Constitution of Ireland but also support the case in favour of people voting YES in the Referendum on 10 November 2012.” Collectively, these affidavits formed an impressive body of testimony. The conclusion which they all reach, that the style and tone of the material is that of persuasion rather than impartial dissemination of information, provides significant support for the plaintiff’s case.
The Defendants’ Evidence
19 The defendants relied on evidence from a number of different sources. Whether from the accident of the exchange of affidavits within a compressed time scale in an urgent application, or from design, or both, there was little direct engagement in these affidavits with the affidavits sworn on behalf of the plaintiff. There was no cross-examination of any of the deponents, and therefore the case was conducted at the level of rival assertions. In my view it is a striking feature of the defendants’ affidavits that they did not engage with the detail of the materials of which complaint was made and instead made observations at a level of some generality and abstraction.
20 An affidavit was provided by Mr. Gerard Angley, a first secretary in the Department of Foreign Affairs, on secondment to the Department of Finance. He explained that the information campaign adopted in relation to the Children’s Referendum had followed from the experience of the Stability Treaty Referendum. He observed that market research conducted in the aftermath of the two referenda held in October 2011 had indicated a public desire for more information from a variety of sources. That much is true, but the report itself did not suggest any demand for additional governmental information. On the contrary it reported that “voters were especially keen to hear from voices outside the political environment…”. This witness had only been involved in the information campaign after the setting up of the website and during the preparation of the booklet. He expressed his general conclusion that he did not consider “the information disseminated by the Department to be biased or to advocate a particular outcome…”.
21 The principal affidavit opposing the application was that of a Ms. Canavan, an assistant general secretary in the Department of Children and Youth Affairs with responsibility for the Referendum campaign. This affidavit set out in considerable detail the background to the decision to propose an amendment to the Constitution. She explained that particular attention was paid to the decision in McKenna No.2, and exhibited a protocol which showed the route for initial approval of documentation which included an optional step of reference to the Office of the Attorney General “if required”. She also exhibited a memorandum of instructions on the implication of the McKenna No.2 judgment that stated:
This appears to be an attempted synthesis of the judgments in McKenna No.2. Furthermore, the memorandum also offered advice as to use of the Government website. It advised that speeches and statements by Government ministers could be carried on the website “However, any passages in statements that advocate a Yes vote should be redacted.” This memorandum illustrates the approach of the defendants to the implications of McKenna No.2. Even though the importance of McKenna No.2 is what it precludes, primary emphasis in the memo is placed on what is considered permissible: a Government information campaign. What is prohibited is described as “promoting a campaign for a particular outcome” which is illustrated by the advice that statements which may otherwise strongly support the campaign for passage of the Referendum may be used on the Government website as long as the passage which specifically advocates a yes vote is redacted.
“During the referendum campaign period, the Government has a right and duty to give information, to clarify situations, or to give explanations and deal with unforeseen matters and emergencies. However, the Government is not entitled to expend public monies for the purpose of promoting a campaign for a particular outcome.”
22 This is an interpretation of the McKenna No.2 judgment which is generous in its approach to the powers of Government during the Referendum and narrow in its reading of what is prohibited. In paragraph 72 of her affidavit, Ms. Canavan stated:
This passage illustrates the abstract and generalised way in which the defendants sought to account for the claims made by the plaintiff. It seems to be argued that the statements on the website and in the booklet and advertisements cannot be said to favour the governmental side. The proposal is a good thing and it cannot therefore be wrong to say so. This also reflects a line of thought found in other affidavits: because something can be said about the proposal and not be positively inaccurate, it cannot be impermissible. But this is surely to risk confusing accuracy with impartiality.
“The phraseology of the information is a reflection of the context in which the need for the referendum arises and the express contents of the wording thereof. To the extent that the Plaintiff herein feels that the content and/or context of the referendum is in itself a positive affirmation thereof, that is to attack the wording and core factual purpose of the Referendum”.
23 Ms. Canavan expressed her conclusion at paragraph 97 as follows:
It should be said that the plaintiff made it clear that he was prepared to accept the Department had acted in good faith in preparing the campaign and did not challenge it on that ground.
“It is believed to be a fundamental public duty and the entitlement of a Government department associated with the subject of any legislative change to publicise and explain the content, purpose and broader legal or social context of the change. In the context of the constitutional change proposed, I believe that the Department has undertaken this duty with conscientious attention to the prohibition against the funding of promotional material and, with the intention of informing the public of the subject in a way that satisfies the needs of clarity, simplicity and with an emphasis appropriate to the gravity of the issue. I believe that the complaints made by the plaintiff belong either to his private views or the debate on the substantive issue. His criticisms arise from such a subjective and intricate impression as to be unpredictable at the stage of composition of the Department’s publications and are argumentative on review at this stage.”
24 In addition to these affidavits the defendants also relied upon an affidavit of Dr. Kevin Rafter, a lecturer in Dublin City University in political communications and journalism. Although from the same faculty as Professor Colm Kenny, and although his affidavit appears to have been sworn after that of Professor Kenny, it does not engage with that evidence or indeed mention its existence. Again, Dr. Rafter’s evidence operates at a level of some generality. Dr. Rafter considered the tone of the website “low key” and thought the campaign subheadings “unimaginative” but considered that they did “align” with the Referendum wording and showed no significant or identifiable added value commentary beyond the line which is the proposal of the amendment itself. I interpret this to mean that if any statement can be related to an aspect of the proposal it is permissible. On this view since it can be said that the Referendum was about protecting children and supporting families, then it was not wrong for the Government to spend public funds saying so. Again, Dr Rafter sought to defend the material by a form of negative argument. He pointed out what the material did not do, and thereby illustrated what it appears he considered was prohibited. At paragraph 15 of his affidavit he stated:
25 Finally, the defendants relied on affidavits from the discipline of political science. The first affidavit was that of the well known expert, Professor Richard Sinnott, Professor Emeritus of Political Science of the School of Politics and International Relations in University College Dublin. He stated that he had been retained by the Department to advise in the course of the Referendum. He explained that in his deliberations with the Department, adherence to the McKenna No.2 judgment was a key consideration and was very consciously to the fore in discussions with representatives of the Department. He offered the view that:-
“There are no graphic images that could be described as being of a campaigning nature in terms of advocating one side of the referendum debate over another.”
Instead he suggested that the “only real and practical test is one of broad fairness: has the publication generally followed a reasonably informative line, bearing in mind the nature of the subject.” He then compared the website with the websites of parties campaigning explicitly for a yes or no campaign and observed: “The Plaintiff appears to argue that the closer an ostensibly neutral publication resembles one side of the vote then the less neutral it is. This is a fallacy.” At the level of theory this may be correct at least where the debate is self evidently all one way (although in such circumstances a €1.1 million public relations campaign might seem unnecessary) or one side of the debate has plainly misconceived the nature of the proposal, but at a more practical level where there exists a genuine dispute, and therefore a real need for neutral information, then the more a publication resembles one side of the debate the more it certainly risks being seen as not impartial. This rather theoretical argument does perhaps implicitly recognise that the Departmental publications did indeed resemble one side of the debate. Taking into account therefore, in his view, the difficulties of providing information while avoiding advocacy, and taking “a common sense view of the context” he concluded that while there were “four debatable points for objection” in the booklet, he did not believe either the booklet or website “shows signs of being intended or having the effect of guiding or swaying voter responses as a result of substance or presentation, or to the extent that this conclusion might be debated, certainly not to any extent that could be reasonably avoided in the creation of the materials in question or could be confidently said to be likely to arise.” Again, it is noteworthy that Professor Sinnott does not engage directly with the criticisms made of the specific portions of the website referred to above and seeks to defend the departmental material by asserting the impossibility of avoiding normative statements and suggests that if a relaxed view is taken of the test, that the material is, in general, unobjectionable.
“…any discussion of human rights, in this case children’s rights, has an inherently normative dimension. This dimension will almost certainly manifest itself in the course of the provision of information in this context even when the intention of the drafters of a document is confined to describing and explaining what the proposal is about. It is an unreasonable if not impossible requirement that the preparation of a publication in the present context would attempt to render the document entirely devoid of any normative reference.”
26 Dr Eoin O’Malley, a lecturer in political science in DCU took a somewhat different line. He seemed to suggest that it was impossible to provide truly neutral information, or at least for the proposer of any amendment to do so. He said; “If one is to give information about a proposal, and is restricted to just giving information then one almost inevitably must base it primarily on the rationale for the proposal.” He then stated that “I believe it is important to recognise that it is not possible for the sponsor of legislation to remove the natural and intrinsic features of the subject of legislation.” This sentence, which was referred to by the learned President of the High Court as candid and generous is, to me, somewhat puzzling. The words “for the sponsor of legislation” appears to imply some important qualification, but if it is possible for anyone to remove the “natural and intrinsic features” of the subject of legislation, it is not clear why that should be beyond the capacity of the sponsor. Self-evidently it is not beyond the capacity of the Referendum Commission. This passage seems to suggest that it is simply not possible to expect the sponsor of legislation, in this case the Department, to be neutral about it. This seems a dubious proposition not least because of the example given in McKenna No.2, where in addition to the frank advocacy involved in the Government’s campaign, the Government also provided funds for a factual information campaign which was balanced, and of which no complaint was made. But it is apparent that Dr. O’Malley like the other experts and opponents on behalf of the defendants, must adopt some significant qualification of the nature of the test, before seeking to assert with any plausibility that this information is or can be considered impartial. Thus, he continued;
This sets out a theme emphasised by counsel for the defendants. An objective test was required and that was provided by prohibiting a positive exhortation to vote in a particular way. Whatever the merit of this as a generalised test, it does not appear to be derived in any way from the judgments in McKenna No.2. He concludes that the booklet does not “advocate a particular outcome.” This he says is a notable absence and is a clear distinction from a “campaigning type booklet which would make such a bias manifest.” Finally, at paragraph 25 of his affidavit he said “Where propaganda is alleged, I believe it is important that it is manifestly propaganda. If propaganda is forbidden, it must be identifiable as such or else an author faces an invisible standard.” For the sake of completeness I should say that on the hearing of this appeal the plaintiff submitted further evidence and exhibited a statement from a discussion on thejournal.ie website in which Dr. O’Malley expressed views on the nature of the campaign. In particular, in relation the Fianna Fáil slogan adopted “Protect Children”, which as the plaintiff observed, is a direct parallel of the key message “Protecting Children” on the Government website and leaflet, Dr. O’Malley stated “The phrase “Protect Children” is again an attempt to frame the referendum, which those on the no side might take issue with. The phrase is pretty anodyne, but that doesn’t really matter.” The plaintiff relied on this because, of course, his case was that the website material was precisely that: an attempt to frame the Referendum in a fashion favourable to the Yes side.
“It is not reasonable to expect the sponsor to actively sterilise the subject. One must determine whether the sponsor has either explicitly promoted support or so interfered as to render an unattractive subject attractive. Any less a distinction makes its impossible to distinguish between the subject itself and the presentation.”
27 I have set out the evidence submitted at some length. I think it is possible to make the following observations on the approach which the evidence adduced on behalf of the defendant reveals. There is no direct reference to or quotation from the judgments of this Court in McKenna No. 2, or a coherent or consistent explanation of what the defendant considers that case decided. Where such reference is made indirectly, it is apparent that the defendant’s approach is to emphasise the fact that a factual information campaign did not contravene the principles in McKenna No.2, to adopt a broad understanding of what constitutes such factual information together with a narrow reading of what was prohibited in that case (as “advocacy”, “campaigning”, “propaganda” or “direct exhortation”). The case made asserts the impossibility of a truly neutral standard either in general, or at least on the part of the Government proposing the amendment, and suggests that the question of whether Government material complied with the McKenna No.2 principles should be assessed by a particularly generous standard which recognises the inherent nature of the topic and asserts the inevitability of partiality, and imposes an objective standard, namely a prohibition on direct exhortation to vote Yes. The evidence only engaged with the specific evidence on behalf of the plaintiff, at a level of abstraction and generalisation. Indeed it did not address the evidence of either Professor Kenny or Ms. Sheridan at all. Although the campaign was itself an exercise in public relations, no evidence from that field was proffered to explain the message the material was designed to convey, or otherwise to counter Ms. Sheridan’s evidence.
The High Court Judgment
28 In the High Court the learned President of the High Court dismissed the plaintiff’s claim. It is significant however that in doing so, the President adopted an approach which showed that he considered it was necessary to produce something exceptionally partial before the standard set in McKenna No.2 would be breached. Observing that the defendants had not sought to challenge the question or otherwise seek to refine the principles enunciated in McKenna No.2 he set out his view that the bringing forward of a referendum proposal by the Government is a political act or initiative in respect of which the Court should be extremely slow to intervene. Accordingly he considered at paragraph 37 that the yardstick against which the material should be assessed was that:
It is in my view instructive, that it was by setting the hurdle at the height marked “blatant and egregious” that it was possible to conclude that the material in this case did not offend the McKenna No.2 principles.
“The breach complained of must be something blatant and egregious. It must be something which is to be seen or found in the presentation of the proposal and not to be a matter which to quote counsel for the defendants, “mires” the court in assessing the merits of the substantive issue or an excessive scrutiny of each and every scrap of information disseminated by or on behalf of Government.”
The Defendants’ Submissions
29 As a matter of logic it might be said that the material in this case could be justified in a number of ways: first by contending that it was truly impartial on any standard; second, by contending that McKenna No.2 was wrongly decided; third, by taking a narrow reading of that case and asserting either that impartiality was not the standard required, or alternatively that it should be judged by a very deferential standard, or both. For reasons I have set out, I do not consider that it is possible to say that the material is on any view impartial, and indeed, on one view, the approach taken by the defendants’ witnesses is a confirmation of this conclusion. It is also significant, as observed by the learned President, that the defendants did not seek to question the decision of McKenna No.2, nor indeed to suggest it should be qualified in any way. I do not consider that it would be appropriate for me to offer any observations on this matter. I approach this case in the same way as it was approached by the defendants: on the basis that the McKenna No.2 decision correctly states the law and is binding and that the only question for resolution is its application to this case. Accordingly the defendants’ case appeared to be limited to contending for a narrow reading of the McKenna No.2 decision, i.e. that it simply precluded direct advocacy of a yes vote when supported by public funds, and contending at the same time for a high threshold for review.
30 At the outset of submissions counsel for the defendants sought to contend that McKenna No.2 forbade what he described as “deliberate, self-demonstrating, political action with public funds” which he said was not present here. Of course, this phrase cannot be derived from any of the judgments in McKenna No.2. He sought to justify it as a distillation of the McKenna No.2 principles by arguing that that case was decided in the context of deliberate self-demonstrating political action with political public funds. In other words, the McKenna No.2 case involved the contribution of IR£500,000 to promote a Yes campaign, and only precludes such expenditure. But it is impossible in my view to contend that McKenna No.2 can be so narrowly understood. That would be to confuse the result with the reasoning by which it was reached, and the facts of the case with the principle it illustrates. Counsel for the defendants did accept that a Government funded campaign had to be “fair, equal and impartial” which is a notably broader formulation and one more consistent with the reasoning in McKenna No.2. Later he also accepted that any information campaign should be “neutral”.
31 The core of the defendants’ case therefore seemed to turn on an insistence that the material published by the Government did not offend the McKenna No.2 principles as interpreted by the defendants. Central to that proposition was the threshold necessary to establish a breach of those principles. The argument was that McKenna No. 2 recognised the Government could provide information, and that Hamilton C.J. had referred to the necessity of establishing “clear disregard” which contemplated a margin of deference to governmental decisions which meant in turn – and this was the crucial step in the argument- that only a clear and unequivocal exhortation to vote yes was prohibited. This argument is indeed consistent with the memorandum of instruction to the department which suggested that it was sufficient to redact from any speech those portions alone that actually said “vote yes”. All the elaborate argument and evidence really came to this proposition, and understandably so. Unless the test of clear disregard of the constitutional obligation of fair equal impartial and neutral could be reduced to a question of the presence or absence of a positive exhortation to vote , then it would be difficult to find that the present material was compatible with that constitutional standard. However I cannot understand how a standard of clear disregard, which involves a consideration of the degree to which material could be said to be impartial , could be equated with a test dependent on the presence of an exhortation to vote, no matter how partial and tendentious the material might otherwise be.
32 Building upon that perhaps slender basis, it was submitted that there were analogies for the level of tolerance which it was asserted the McKenna No.2 principles, at least as interpreted by the defendants, allowed to governmental action. Thus it was suggested that in the context of administrative law the same principle was reflected in the Wednesbury rules, which distinguish between rationality of the decision making process, and the merits of the decision itself. This is a reference to a test in administrative law in the U.K. set out in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation  1 K.B. 223, found in Irish law in State (Keegan & Lysaght) v. Stardust Victims Compensation Tribunal  1 I.R.642, that a court will only quash an otherwise lawful decision if it flies in the face of fundamental reason, or is so unreasonable that no reasonable decision maker could have arrived at that decision. Reliance was also placed on s.43 of the Referendum Act 1994, which provided that a petitioner might question a provisional referendum certificate where he or she could show that the result was “affected materially” by an irregularity. It is suggested that this test which applied after a referendum, should apply conversely so that it was argued that “…only such matters as can assuredly be said to ‘materially effect’ the outcome should be enjoined by Court order if the manner of the provision is unlawful and unconstitutional.” This would be a very formidable hurdle indeed if applied, as it must be, in advance of a referendum. Furthermore it was said, there must be a “broad range of appreciation.” It was necessary to take account of the “ineradicable attraction of the subject”. There were some subjects which “cannot be spoken about without giving the appearance of bias”. The only valid test therefore was to understand the reference in McKenna No.2 to “clear disregard” as prohibiting an unequivocal exhortation to vote in one way, and that alone. When asked to identify a portion of the material which could be said to be favourable to the No side of the debate counsel pointed to the following passage on page 12 of the booklet where it was said it was acknowledged that the best interests of the child test could already be found in existing legislation. The sentence and the immediately succeeding sentence are as follows:-
The fact that this passage which in my view clearly promoted the proposed amendment could be relied upon as an, if not the, example of a passage favourable to the No argument, is itself revealing.
“This principle can already be found in existing legislation concerning guardianship, child care and adoption. However specific recognition of this principle in the Constitution will give this principle greater weight when counter-balanced against other rights and interests, and ensure that laws in these areas make such provision.”
33 I regret that I find the arguments of the defendants deeply unpersuasive. The reading of the judgment in McKenna No.2, as limited to a positive endorsement of a right and duty to provide information on the part of the Government, and a negative prohibition on only such conduct as would fail a Wednesbury test type (or the “material affect” test contained in s.43 of the Referendum Act 1994) is in my view unjustified. In particular it does not give any weight to the reasoning leading to the decision in that case.
The McKenna No.2 Decision
34 Those judges who were in the majority in McKenna No.2 took slightly different but consistent routes to their conclusion. Thus, Hamilton C.J. focussed on the structure of the Constitution and the separation of powers. At page 32 of the report he relied upon the statement by Walsh J. in the course of Crotty v. An Taoiseach  I.R. 713 that, “To the judicial organ of Government alone is given the power conclusively to decide if there has been a breach of constitutional restraints.” He also referred to the passage in the judgment of Fitzgerald C.J. in Boland v. An Taoiseach  I.R. 338, where he said:
Finally, Hamilton C.J. referred to the passage in Crotty v. An Taoiseach in the judgment of Finlay C.J. where he stated:
“Consequently, in my opinion, the courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions, unless the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution.”
From these passages Hamilton C.J drew certain conclusions:
“… where an individual comes before the Courts and establishes that action on the part of the executive has breached or threatens to breach one or other of his constitutional rights that the Courts must intervene to protect those rights but that otherwise they cannot and should not.”
35 This conclusion is obviously important, not least because it is not limited to the specific context of referenda, but refers to the position of the exercise of governmental powers more generally. It seems to me however, impossible to derive from this simple system the hyper deferential test contended for by the defendants particularly when such a test is not so expressed in either the judgment of Hamilton C.J. or in any of the other judgments. While the defendants necessarily place heavy emphasis on the word “clear” it is perhaps telling that although Blayney J. is recorded in the headnote of the report as agreeing with the synthesis proposed by Hamilton C.J. he did not express himself in just those terms. Although at page 50 of the report he expressed a general agreement with the Chief Justice, he concluded simply “The Government has in my opinion acted in disregard of the provisions of the Constitution…” (emphasis added). It is not necessary to consider here what precisely is meant by the phrase “clear disregard” and we were not invited to do so. It seems at least to provide in this case a readily understandable and applicable standard to judge governmental action. As is evident in the passage referred to it is a component of that respect due by one organ of Government to another (seen also in the presumption of constitutionality in respect of legislation), and a reflection of the fact that the Constitution confers primary responsibility for, and expertise in, certain areas on one of the branches. Breaches of the Constitution in any such area must be capable of being clearly established. I can see no justification for replacing that test with a standard of blatant and egregious. Still less is there any justification for reducing the test in the case of a referendum campaign to a prohibition of direct exhortation to vote in a particular way. It is difficult to see why the Constitution would require a standard that would prohibit only gross acts of exhortation (which might be ineffective) but permit effective though more subtle advocacy, and nothing in McKenna No.2 supports such a distinction. Instead the decision is clearly expressed in broad terms.
“1. The courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions provided that it acts within the restraints imposed by the Constitution on the exercise of such powers.
2. If, however, the Government acts other than in accordance with the provisions of the Constitution and in clear disregard thereof, the courts are not only entitled but obliged to intervene.
3. The Courts are only entitled to intervene if the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution.
Having regard to the respect which each organ of government must pay to each other, I am satisfied that where it is alleged that either the Oireachtas or the Government has acted other than in accordance with the provisions of the Constitution, such fact must be clearly established.”
36 The remaining judgments emphasise different aspects of the case but they are notable for the breadth of the principles invoked. O’Flaherty J. held, at pp.45 and 46, that the spending of public monies by the Government infringed the equality rights of the citizen. He also saw fairness as a component of that equality. Importantly in the context of the present case he also observed that the strength with which the proposal was pressed was irrelevant to the question of whether it was fair and impartial:
These words apply with equal force in the present case.
“It is no answer to say, as has been said, that the advocacy … is gentle, bland and mild and is put forward in the context of making a fair effort on the Government’s part to put all matters before the people; nor is it an answer to say that the amount involved, £500,000, is only a small amount; it may well be – but even if it is so, the principle is not affected – nor, finally, is it any answer to say that it is either the entitlement or the “duty” of a Government so to educate the public . If the Government regards itself as having that right or duty, it must exercise it without resort to public funds.”
37 Blayney J. considered that it was significant that the Constitution gave no explicit role to the Government in a referendum process. The sole function of the executive which could be deduced from the text of the Constitution, was that it was its duty to submit the bill in referendum to the People. It followed therefore that constitutional justice required that the executive should act fairly in submitting its proposal. He concluded at page 50:
Finally, Denham J. (as she then was) considered that the spending of Government funds in a referendum campaign in support of one side of that campaign, breached the equality rights guaranteed by Article 40.1, and particularly the spirit of equality applied in the process of a referendum. It also breached the right of free expression, and a right to a democratic procedure in the Referendum.
“If this plan were implemented it would give a very considerable advantage to those whose support the amendment as against those who oppose it. The Government would be acting unfairly in the manner in which it was submitting the amendment to the decision of the People.”
38 On any analysis of the judgments in McKenna No.2 it seems clear that it cannot be understood as a narrow decision. It involved the application of broad principles derived from the structure and underlying theory of the Constitution, indeed some of its most fundamental concepts such as fairness and equality. To contend that the judgment asserts a right on the part of the Government to make information available, and merely prohibits blatant or egregious acts of direct advocacy, is an unduly narrow approach to that judgment. It would indeed be peculiar if the most fundamental concepts of fairness and equality operated only to prohibit the use of public funds to advocate a Yes vote, but did not restrain partiality, unfairness and inequality, however pervasive that might be.
39 It must be apparent also, that the Wednesbury test is not a useful guide to the application of constitutional standards to actions by the executive. When a public body exercises public law functions, a court exercising judicial review, does not act as if it were considering an appeal on the merits of any individual decision. The sole function of a court is a review of the legality of that conduct. If a public body does not act within its powers and if it is challenged a court must so declare. There is no margin of appreciation. A court does not however consider the merits of the individual decisions save, that if it is manifestly irrational, it is also considered unlawful. Thus, the irrationality test is a residual test of legality, and a very attenuated review on the merits. But the court does not apply the irrationality test to the question of legality, and still less to any question of whether any action is in breach of the Constitution. It is hard to see how the so called Wednesbury test of unreasonableness can provide any useful guidance where an action is challenged by reference to the Constitution.
40 The analogy with s.43 of the Referendum Act 1994 is equally misplaced in my view. It should be clear that there is a large, and constitutional distinction between restraining a breach of the Constitution by the Government (or anyone else) occurring in the course of a referendum campaign, and the interference with and setting aside of, a decision made by the People whose right it is in final appeal to decide all questions of national policy. In the event, the Divorce Referendum which was the background to McKenna No.2 itself provides a clear demonstration of the fallacy of this reasoning. The Government campaign was in fact restrained by the Supreme Court in McKenna No.2 but the subsequent decision of the People was not set aside although challenged in Hanafin v. Minister for the Environment  2 I.R. 321 where the petitioner relied on the self-same breaches of the Constitution which had been established in McKenna No.2 and, for good measure, some further matters which emerged thereafter. If the test of material effect as applied in Hanafin is applicable in the McKenna No.2 situation then the plaintiff ought to have failed. Alternatively, if McKenna No.2 is to be understood as an implicit application of the material effect test then the petitioner in Hanafin ought to have succeeded. It is apparent that a different standard applies in any application to set aside the decision of the People once given, and for good reason.
41 Like my colleagues, and the President of the High Court, I agree that the position of the Referendum Commission requires consideration in the course of this case and indeed if the dictates of the Constitution as outlined in McKenna No.2 are to be complied with. First of course, the very existence of the Referendum Commission, and its performance of its function in delivering literature at short notice to the electorate, is itself the most clear demonstration that contrary to the evidence and submissions of the defendants, it was possible to state the facts and issues in this very Referendum campaign without inevitably favouring the proposal. Furthermore, it is worth recalling that McKenna No.2 was decided in the context of a referendum campaign in which, almost by definition, there was no role for a Referendum Commission. Indeed, during that Referendum campaign there was a dual campaign conducted on behalf of the Government: the £500,000 promotion of a Yes vote, and the expenditure of monies on the delivery of what was described as “factual information”. It was this latter function which has subsequently been discharged by the Referendum Commission. The Referendum Commission is now an established and welcome feature of the landscape in any referendum campaign. A decision therefore of the Government to launch its own and separate information campaign not only ran the risk of proceedings such as this (particularly because it was apparently believed that it was not possible for the sponsor of the proposal to be strictly neutral), but also a risk of considerable confusion and a consequent undermining of the function of the Referendum Commission. The existence of a fully independent body with a record of delivery of trustworthy information to voters is itself a significant performance of the guarantee of impartiality of the process of information dissemination in the course of a referendum. I also agree with the learned President that it is undesirable that the courts should be asked to intervene to analyse in minute detail language used in the provision of information to voters. In any proposal to amend the Constitution it is important that the People are permitted to make their decision on the merits of the proposal in a fashion which is as free from interference and distraction as possible. The public challenging of information in court and the uncertainty created by the existence of court cases, are all undesirable distractions from the question of whether the proposal put to the People should be adopted or not. The test of “clear disregard” applied by having regard to the publication as a whole provides a standard which should permit the Referendum Commission to carry out its function without the type of hyper zealous textual analysis rightly deprecated by the learned President.
42 Ultimately the material supplied here must be judged. In my view, that poses little difficulty. It is irrelevant that the material can be seen as low key, lacking in stridency, or not direct advocacy of a yes vote. As counsel for the plaintiff observed, subtle advocacy may be much more effective than a blatant or egregious advocacy. Indeed much successful campaigning in a political context may involve avoiding hard edged statements of detail with which people may disagree, and an attempt to associate the candidacy or proposal with ideas which themselves are popular and acceptable and the creation of a mood and impression which is favourable. Thus the material used in the Referendum campaign of those political parties which were unambiguously in support of the proposal, and campaigned directly for it, was often limited to attractive images of children and slogans such as “every child matters” and “children should be seen and heard”. The presentation of such images and slogans are attempts to frame the debate in terms favourable to one side. It is a common observation that a person who is able to frame the debate, particularly if they can put themselves in a trusted position as the purveyor of information, will often succeed. The most valued position in politics, is the appearance of being above politics. The fact that the message here cannot necessarily be described as strident, blatant and egregious, or campaigning advocacy or propaganda, is to miss the point. The only question is whether it was fair, equal, impartial and neutral. Making every allowance for the range of possible views I consider that it has been clearly established that it was not. For these reasons, and for the reasons set out in the judgments of the Chief Justice and Fennelly J , with which I agree, I allowed the plaintiff’s appeal.