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Judgment

Title:
McCrystal -v- Minister for Children and Youth Affairs & ors
Neutral Citation:
[2012] IESC 53
Supreme Court Record Number:
486/2012
High Court Record Number:
2012 11508 P
Date of Delivery:
12/11/2012
Court:
Supreme Court
Composition of Court:
Denham C.J., Murray J., Hardiman J., Fennelly J., O'Donnell J.
Judgment by:
Fennelly J.
Status:
Approved

Judgments by
Link to Judgment
Result
Concurring
Denham C.J.
Appeal allowed - set aside High Court Order
Hardiman J.
Murray J.
Fennelly J.
Hardiman J.
O'Donnell J.
Hardiman J.

Outcome:
Allow And Set Aside
___________________________________________________________________________



THE SUPREME COURT


Appeal No. 486/12

Denham C.J.
Murray J.
Hardiman J.
Fennelly J.
O’Donnell J.

Between/


Mark McCrystal
Plaintiff/Appellant


and


The Minister for Children and Youth Affairs,

The Government of Ireland, Ireland

and the Attorney General



Defendants/Respondents

JUDGMENT of Mr. Justice Fennelly delivered the 11th day of December 2012.

1. The appeal of the appellant in this matter came before the Court on 6th November 2012, a mere four days before the date of voting on the Children Referendum. It was essential for the Court to rule on the matter as a matter of great urgency. There was no time for considered judgments. This Court, therefore, in its ruling of 8th November 2012 granted a declaration that the respondents have acted wrongfully in expending or arranging to expend public moneys on the website, booklet and advertisements in relation to the Referendum on the Thirty First Amendment of the Constitution (Children) Bill, 2012, in a manner which was not fair, equal or impartial.

2. On 3rd October 2012, both Houses of the Oireachtas passed the Thirty First Amendment of the Constitution (Children) Bill, 2012. On 8th October, the Minister for Environment, Community and Local Government made an order under the Referendum Act 1994 appointing 10th November as the date for voting on the Children Referendum. On 19th September 2012, the same Minister established a Referendum Commission under the Referendum Act 1998. On 16th October 2012, the Referendum Commission launched its public information campaign and established its own website.

3. The relief granted by the Court on 8th November was in substance what was claimed by the appellant in his Plenary Summons issued on 19th October 2012.

4. In the statement of claim delivered on his behalf on 19th October 2012, the appellant gave the following particulars of what he claimed were the unconstitutional aspects of the contents of the website established by the first-named respondent, the Minister for Children and Youth Affairs (hereinafter “the Minister”) as part of his information campaign for the referendum :

[Particulars in par. 14 of statement of claim]

5. The appellant caused a letter to be written to the Minister seeking information regarding the expenditure of public money. The Chief State Solicitor’s Office replied on 19th October, 2012, stating that: the “material on the website is designed to be factual in nature and put the issues to public.” The letter said: “There is no advocacy for a yes vote." The letter also informed the plaintiff that funds voted by the Oireachtas to the Department of Children and Youth Affairs for 2012 included €3 million in respect of expenditure of the children’s rights referendum. Of this sum, the Minister had allocated €1.9 million to the Referendum Commission for the performance of its statutory functions. The balance of €1.1 million was being used by the Department of Children and Youth Affairs, as it was said, “to provide information on the referendum and encourage members of the public to vote.” That letter sets the stage. The Minister was authorised to spend public money for the purpose of providing information, but not for advocacy.

6. On 22nd October 2012, the appellant issued a notice of motion returnable in the High Court for 23rd October in which he sought an interlocutory injunction restraining the respondents from expending public monies on websites or booklets promoting a particular result in the Children Referendum.

7. In his grounding affidavit, the appellant made complaints both about the website and the booklet said to constitute the "major information campaign" of the government in connection with the Children Referendum. He complained that the campaign was not confined to the neutral transmission of information but that it was designed and/or intended and/or likely to promote a particular outcome.

8. The appellant has never questioned the impartiality or objectivity of the public information campaign of the Referendum Commission. Nor does he make any objection to the respondents arguing for a Yes vote by means which did not involve the expenditure of public monies. He alleged that the government campaign, particularly the website and booklet, went well beyond merely insignificant or incidental expenditure.

9. When the application came on before the President on 30th October, it was agreed to treat the hearing of the motion as the trial of the action.

10. The learned President delivered his judgment ex tempore on 1st November. He noted the appellant’s complaint that the government’s information campaign was unconstitutional having regard to the status of a referendum under Article 46 of the Constitution and the views expressed by this Court in McKenna v. An Taoiseach (No. 2) [1995] 2 I.R. 10.

11. The learned President summarised the appellant’s complaint about the website as being that that in its totality it leaned heavily towards supporting the referendum, and was designed and intended to influence voters by favouring a particular result. He noted the complaint that it placed an emotionalised emphasis on children with numerous child pictures and child handwriting: a large caption with the title ‘Vote’ set out in child’s handwriting, with an image of a smiling face depicted in the letter ‘O.’ There was also a repeated slogan: “It’s all about them… but its up to you”; and the logo design for the website shows an image of three children holding hands in a further emotional appeal.

12. He also noted a number of complaints concerning the booklet. For example, the appellant claimed that the booklet used ‘campaigning’ type language on page 14, saying that: “the proposed new Article puts the safety and welfare of children at the centre of decision making in relation to child protection,” which was said to be value-laden and imbued with a sense of the desirability of the amendment and not to communicate any specific factual information.

13. The learned President also referred to the evidence given on affidavit of a number of witnesses. The appellant had submitted affidavits from Mr John Waters, the well-known journalist, Ms Lyn Sheridan, a public relations consultant and Professor Colum Kenny, of Dublin City University.

14. The learned President observed that, since 1998, the Referendum Commission, had “discharged effectively and well its statutory function of promoting public awareness of the referendum, of encouraging the electorate to vote at the poll and of publishing statements containing a general explanation of the subject matter of the proposal.” He added: “It operates with complete impartiality and enjoys high levels of public confidence…….”

15. The learned President next summarised the decision of Costello J., pronounced in 1992, but reported as McKenna (No. 1) [1995] 2 I.R. 1, and referred to the judgments of Keane J in the High Court and of this Court in McKenna v. An Taoiseach (No. 2) [1995] 2 I.R. 10. It is particularly important to record that he took note of the care the Court took “to emphasise that before the courts will intervene in a political process, it must be “clearly established” that the Government has shown a “clear disregard” for constitutional rights.” He proceeded to interpret his own role in the instant case in the light of those and a number of other judgments as follows:

      “That is the yardstick against which the material put out by the defendants in this case must be assessed. 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 be a matter which to quote counsel for the defendants, “mires” the court in assessing the merits of the substantive issues or in excessive scrutiny of each and every scrap of information disseminated by or on behalf of Government. Such an approach would place the courts in a situation where, having entered into this particular domain, they could be called upon in virtually every referendum to perform some exercise of hyper-zealous vigilance of every piece of information disseminated by Government. I cannot believe the Supreme Court in McKenna (No.2) intended any such consequence.”
16. The learned President expressed himself “satisfied that scrupulous care has been taken to at least try to avoid falling foul of McKenna (No. 2) judgment in the information contained in the Government booklet and on its website.” He took note of the consultation process embarked upon by the Minister and the advices sought from the office of the Attorney General to ensure that the Government could impart information in compliance with the McKenna principles. He refused the reliefs sought by the appellant. His conclusion on the matter was as follows:
      “Having considered all of the evidence and legal arguments put before me, I am satisfied that the campaign run by the defendants contains material which is neutral, balanced and has the primary aim of informing the public about the forthcoming referendum. I do not find that the defendant’s campaign can be said to plainly favour a particular outcome so that it is unconstitutional or wrongful.”
17. The appellant, in his appeal claims in substance that the learned President erred:
      1. in his application of the test of “clear disregard” of the Constitution by substituting a test higher than the balance of probabilities, in particular in holding that the breach must be “blatant and egregious;”

      2. in finding, on the evidence before the High Court, that the material did not advocate a particular outcome in the Children Referendum but that it was “neutral, balanced and has the primary aim of informing the public;”

      3. in failing to find that the respondents had not held the scales equally between the two sides in the Children Referendum;

      4. in failing to make findings on a number of the appellant’s specific complaints.

The McKenna principles

18. 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 (No. 2), already cited. That decision must be taken to be a fully binding part of our law regarding the conduct of referendums pursuant to the Constitution.

19. Hamilton C.J., at page 41 explained the process for amendment of the Constitution as follows:

      “The role of the People in amending the Constitution cannot be overemphasized. It is solely their prerogative to amend any provision thereof by way of variation, addition or repeal or to refuse to amend. The decision is theirs and theirs alone.

      “Having regard to the importance of the Constitution as the fundamental law of the State and the crucial role of the People in the adoption and enactment thereof, any amendment thereof must be in accordance with the constitutional process and no interference with that process can be permitted because, as stated by Walsh J. in Crotty v. An Taoiseach [1987] "it is the people themselves who are the guardians of the Constitution".

      “As the guardians of the Constitution and in taking a direct role in government either by amending the Constitution or by refusing to amend, the People, by virtue of the democratic nature of the State enshrined in the Constitution, are entitled to be permitted to reach their decision free from unauthorised interference by any of the organs of State that they, the People, have created by the enactment of the Constitution.

      “The constitutional process to be followed in the amendment of the Constitution involves not only compliance with the provisions of Articles 46 and 47 of the Constitution and the terms of the Referendum Act, 1994, but also that regard be had for the constitutional rights of the citizens and the adoption of fair procedures.

      “The use by the Government of public funds to fund a campaign designed to influence the voters in favour of a "Yes" vote is an interference with the democratic process and the constitutional process for the amendment of the Constitution and infringes the concept of equality which is fundamental to the democratic nature of the State.”

20. O’Flaherty J said at page 43:
      “I should think it bordering on the self-evident that in a democracy such as is enshrined in our Constitution (which is not exclusively a parliamentary democracy; it has elements of a plebiciary democracy) it is impermissible for the Government to spend public money in the course of a referendum campaign to benefit one side rather that the other.”
21. Blayney stated at page 49:
      “……neither the provisions of the Constitution nor the provisions of the [Referendum] Act of 1994 envisage that the executive would have any role other than to submit the amendment to the decision of the People. No guidance is given as to how this role is to be carried out, but since it is a role imposed on the executive by the Constitution in connection with the very important constitutional right of the People, that is voting at a referendum, I am satisfied that constitutional justice requires that the executive should act fairly in discharging it, not favouring any section of the People at the expense of any other section. This would seem to be a minimum requirement for the discharge of any constitutional obligation. The people are entitled to be treated equally.”
22. Denham J. (as she then was) said at page 53:
      “The spirit and concept of equality applies to the process of a referendum. There is a right to equal treatment in the political process. It is a breach of the concept and spirit of the constitutional right to equality for the Government to spend public monies in funding a campaign to advocate a specific result in a referendum.”
At a later point she said:
      “Ireland is a democratic state. The citizen is entitled under the Constitution to a democratic process. The citizen is entitled to a democracy free from governmental intercession with the process, no matter how well intentioned. No branch of the government is entitled to use taxpayers’ monies from the Central Fund to intercede with the democratic process either as to the voting process or as to the campaign prior to the vote.”
23. The basic principle underlying these dicta is that of equal treatment. The government may not use public funds in a referendum campaign to “benefit one side rather than the other,” (O’Flaherty J p. 43), “favouring any section of the People at the expense of any other section “(Blayney J, p. 49) “to advocate a specific result” (Denham J, p. 53.)

24. On the burden or level of proof required to establish that a particular government-funded campaign breached these principles, the Hamilton. C.J. referred to authority, including the judgment of Fitzgerald C.J. in Boland v An Taoiseach [1974] I.R. 338, referring to “clear disregard by the Government of the powers and duties conferred on it by the Constitution.” He described the relationship between the courts and the executive as follows at page 32:

      “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 otherwise 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 of the organs 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.”
25. The appellant must, therefore, discharge the burden which is on him by clearly establishing, as a matter of fact, that the Minister has acted in clear disregard of the restraints laid down in McKenna. While the Government or a particular Minister is perfectly entitled to advocate a particular outcome in a referendum, insofar as any campaign is paid for out of public funds, it is not permissible for the Government to favour a particular outcome.

26. It is accepted by the appellant that the Government is entitled to use public funds to provide necessary information to the People—and the respondents maintain that it’s use of the voted funds was intended to do no more than that—but it is not permissible, under the guise of an information campaign to depart from the path of strict neutrality.

The website

27. The website, opened and operated on behalf of the Minister, at the address www.childrensreferendum.ie, had a home page entitled “Children’s Referendum,” headed by the statement: “Voting Day: Saturday, 10th November 2012.” On the home page, there were some ten pages that could be opened. The headings or names of these pages were:

      • Why do we need this referendum?

      • What will change if the referendum is passed?

      • Thirty First amendment to the Constitution (linking to the text of the amendment);

      • Protecting Children;

      • Supporting Families;

      • Removing inequalities in adoption;

      • Recognising children in their own right;

      • Programme of Change for Children;

      • FAQs: Frequently asked questions on the Children's Referendum.

      • Fact Sheets.

30. The following are representative passages. They are a sufficient to demonstrate the general thrust and direction of the content of the website. I quote some of the text under each of the above headings.

Why do we need this referendum?

      “Our Constitution is the foundation for all 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 , as far as practicable, to protect those rights.

      ………………………………………………………………….

      “Passing this Referendum will put children's needs at the centre of decision-making and will facilitate changes to adoption legislation.”

What will change if the referendum is passed?
      “This Referendum proposes to place a dedicated Article in the Constitution which has children as its central focus.

      “This Referendum is about strengthening the Constitution:

      • To provide that the rights and protections set out in this new Article should apply equally to all children, regardless of the marital status of their parents;

      • To protect children from abuse and neglect;

      • To recognise children in their own right.

………………………………………….

Protecting Children

      “For children at risk, this Referendum seeks to ensure that they are protected from harm.

      “It sets out when and how intervention should occur, with the focus on the child, and referring to the impact of parental failure on the child's safety and welfare, rather than solely on such failure and the reasons for it.

      “Overall, Article 42A focuses on the protection afforded to children under the Constitution, while respecting and preserving the rights of parents and the family.”
Supporting Families
      “The amendment will require State intervention in the family to be proportionate.”

      ……………………………………………………………..

Removing inequalities in adoption
      “ On the passing of this Referendum a clear standard will apply across areas of law relating to child welfare and protection and family law that the rights and protections set out are to be enjoyed by all children, irrespective of the marital status of their parents.”
Recognising children in their own right
      “It will mean that provision is made by law, that in the resolution of all proceedings concerning the protection and welfare, adoption, guardianship, custody, and access in respect of any child, the best interests of the child shall be the paramount consideration.

      “This Referendum proposes to change our Constitution to include a standalone article (Article 42A) on ‘ Children,’ is thus providing a strong affirmation of each individual child is inherent rights, while continuing to respect and preserve the rights of the family, as set out in the existing Article 41.

      “This Referendum also proposes, for the first time to give Constitutional recognition to the best interests and views of the child in court cases affecting their life.

      “This Referendum, if passed, will mean that provision May be made by law to ensure that in the resolution of all proceedings concerning the protection and welfare, adoption, guardianship, custody, and access in respect of any child that:

      • the paramount consideration is the best interests of the child.

      • the views and wishes of the child should be taken into account, as long as the child is sufficiently mature to make this appropriate.”

31. Under the FAQs heading, the website offers answers to a number of general questions and repeats much of the material already quoted. I will refer to only two of these.

32. The website poses the question: "What will it change?” It proposes the following answer:

      “The changes that would be brought about by the proposed Constitutional Amendment include the following:

• the provision of express rights for all children;

• strengthening of protections for children where parents are failing in their duties towards them;

• the removal of inequalities in adoption between children on the basis of the marital status of their parents

• strengthening of the principles of best interests and consideration of the views of children in child care, adoption and family law proceedings.”

33. The website also poses the question: “Don’t children already have rights under the Constitution?” It provides the following answer:

      “While all citizens have rights, that Constitution does not currently provide an express statement of rights for children. The proposed amendment provides a strong affirmation of each individual child is in here and rights and a clear statement that children's rights need to be protected and vindicated; while continuing to respect and preserve the rights of the family as set out in the existing article 41.”
The booklet

34. The booklet was circulated shortly after the opening of the website. The letter of 19th October 2012 from the Chief State Solicitor said it would be circulated either on that day on the following Monday.

35. The booklet largely repeats the material on the website, if sometimes, in different language. It will suffice to refer to the answer to the question: "Why this particular Referendum?” It is as follows:

      “Our Constitution is the foundation for all the State’s laws and policies.
However, it does not provide a separate statement of rights for children.

The Government is bringing forward this Referendum to give the Irish people the opportunity to make a decision on this matter. The proposed amendment is intended to give recognition to the rights of children under the Constitution and to affirm the States obligation, as far as practicable to protect those rights.

The Referendum is intended to put children's needs at the centre of decision-making and to facilitate changes to adoption legislation.”

The booklet contained a clear significant error amounting to a misstatement of the effect of the referendum proposal. The Chief Justice and O’Donnell J. have explained this matter and its significance.

Other evidence

36. The plaintiff's own grounding affidavits were supported by the affidavits of three independent witnesses. Mr John Waters, the well-known journalist swore that the website was "designed to put in a particular point of view in relation to the amendment, which is to say that it impliedly endorses a Yes vote and offers no sense or a hint that there may be significant or weighty contrary arguments are objections to the amendment or its wording.” His opinion was that both the website and the booklet were "riddled with value judgements, emotional and irrelevant material, one-sided presentation, omission of important balancing context, minimising or omission of difficulties and real problems of interpretation.” Ms Lyn Sheridan, an expert in Public Relations, expressed, as her professional opinion, the broad view that both the referendum and the booklet were "partial, unbalanced and persuasive of a ‘Yes’ vote.” Dr. Colum Kenny, Professor of Communications at Dublin City University, was of the opinion that the documents "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 a referendum…….”

37. Mr Gerald Angley, First Secretary of the Department of Foreign Affairs and Trade said that he had been temporarily assigned to the Department of Children and Youth Affairs to assist with referendum arrangements. He had experience with the Stability Treaty Referendum in May 2012, which he described. He found that the Department was “conscious of the legal environment including McKenna.” While Mr Angley did not consider that the information disseminated by the Department was biased or that it advocated a particular outcome, he thought it necessary for the government to “ensure full information is available to the public on not just the constitutional amendment itself but the policy issue around it.” He added: “The government is uniquely positioned to explain the wider policy context and in my opinion has a duty to do so as I see it off the referendum in the first place.”

38. Ms Elizabeth Canavan, Assistant Secretary General of the Department Children and Youth Affairs swore an affidavit in which she provided a comprehensive and detailed account of the management of the referendum process from the point of view of her Department. She traces the background to the referendum by reference to many reports by eminent public persons and bodies going back as far as the year 1993. She describes research into behaviour and attitudes conducted at the behest of the Department and the engagement of a public relations firm to assist in the work. She identified “the need for information to be made available to the public to ensure that decisions regarding the proposed amendment would be as informed as possible and to deal with some of the issues identified as most clear to the general public and of most concern to them.”

39. Ms Canavan said that the Department had been "attentive to, and at all times mindful of the provisions of law and the Constitution and specifically the jurisprudence relating to the non-use of public resources to advocate a particular outcome in the context of a Referendum.”

40. She said that the Department had worked closely with the Office of the Attorney General. She made several references to involvement of that office: a full briefing by the Attorney General's office was provided to senior staff, the public relations firm and the Minister's advisers on 1st August 2012. On 3rd of October 2012 the Department sent a circular letter to all departments concerning the “implications of the McKenna case.” It referred to the previous legal advice from the Office of the Attorney General which it outlined as follows:

“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.”

41. Ms Canavan described the preparation of materials for the website and for the booklet and referred to observance of a “Public Communications Protocol.” That document lays down procedures for the circulation of a wide range of publicity material, namely "press queries, articles, broadcast, twitter, events, etc” and to press releases and speeches. It does not refer either to the website or to the booklet which were, apparently, yet to be prepared. The AGO (presumably, the Attorney General's Office) was to be included in the clearance “if required.”

42. Ms Canavan says, in her affidavit, that this protocol was followed, “always completing the cycle with sign off from the Department’s legal adviser and The Office of the Attorney General having regard to accuracy and the McKenna Judgement and by the Assistant Secretary.” In the case of the booklet she says that a "final version was prepared for consideration of legal advisors.” She adds: “Following detailed feedback from the legal side (including the Office of the Attorney General) a final draft was agreed as appropriate. This was signed off at Assistant Secretary level and provided to printers for layout and print.”

43. It is notable that this account, at no point, alleges that the website or the booklet was actually reviewed and approved by the Office of the Attorney General. The advice of that office, as very briefly summarised in the form of two brief sentences, seems correct and in accordance with the McKenna judgment. The first sentence refers to the right of the Government to give information, to clarify situations or to give explanations. The second emphasises that the government is not entitled to expend public monies for the purpose of promoting a particular outcome.

44. The respondents provided two affidavits sworn by eminent experts in political science with specialties in the area of the effects of political campaigns on the outcome of elections or referendums. Each had been asked to evaluate the website and the booklet for political neutrality. Each was fully aware of the principles of the McKenna case.

45. Dr Eoin O’Malley, lecturer in Political Science at the School of Law and Government, Dublin City University has written extensively on the electoral effects of political campaigns. In a wide-ranging consideration of the issues he made the following comments:

      • in giving information about the wide-ranging legislative proposal with complex social effects one must necessarily base it upon the stated rationale for that proposal;

      • if one cannot articulate the rationale of legislation then one can only restate the content;

      • it is not possible for the sponsor of legislation to remove the natural and intrinsic features of the subject of the legislation;

      • it is not reasonable to expect the sponsor to actively sterilise the subject;

      • in the present instance, it is difficult and in some respects impossible to present the proposed amendment free of its inherent attractions;

46. He thus reached the conclusion that:
      “In my opinion the predominant and overall impression created by the website and leaflet is that of explanation of context and the project of the amendment. If one is attracted to this, it is because of the substantive factual merits disclosed and the fact that children are the recipients. I do not see that the presentation is responsible for such an attraction or materially influences the reader.
47. Dr. Richard Sinnott, Emeritus Professor of Political Science, of the School of Politics and International Relations, University College Dublin, a renowned writer and commentator on the subject also provided an affidavit. His general comments included the following:
      • “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… the only real and practical test is one of broad fairness : has the publication in general followed a reasonably informative line, bearing in mind the nature of the subject;

      • “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. The test of neutrality must I believe be primarily based on what a publication expressly professes taking into account a commonsense view of the context.”

48. Dr. Sinnott's conclusion was:

      “I do not believe that either the Department’s booklet or website show signs of being intended or having the effect of guiding or swinging voter response 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.”
49. Dr Kevin Rafter, lecturer in Political Communication and journalism at Dublin City University, a former journalist of wide experience reviewed the website and booklet and made a number of criticisms, many of them on grounds of quality. The nearest he came to expressing an opinion on the issue of neutrality of content was a statement that:
      “I find it hard to believe that a serious argument could be made that this design and tone was agreed with the intention of persuading people to vote “yes” in the referendum campaign.”
He thought the text of the booklet to be “an honest attempt at information provision in the context of a complicated referendum campaign.”

The appeal

50. The appellant’s case is founded on the proposition that the Constitution, as interpreted by this Court in the McKenna judgment, prevents the State from spending public money voted by the Oireachtas so as to favour one side over the other in a referendum campaign.

51. The issue before the Court on the present appeal arises in a context different from McKenna. In that case, of course, public money had been voted by Dáil Eireann, as the headnote to the report records, explicitly for the purpose of use in a publicity campaign to encourage a “Yes” vote in the referendum proposing the removal of the constitutional prohibition on divorce. The Court did not need to consider whether the actual material was designed to favour a particular result and did not do so. McKenna does not lay down any criteria for judgment as to whether a particular government campaign infringes the limits laid down in the judgments.

52. The sum of €1.1 million allocated for use by the Department of Children and Youth Affairs in the present case was intended to be used “to provide information on the referendum and encourage members of the public to vote.” This money was not provided for the declared purpose of favouring one side. The question is whether information campaign so funded does in fact advocate a particular result in the referendum.

53. Since the Department’s information campaign is funded from public monies, the only question is whether it does in fact favour one side in the campaign. Counsel for the appellant submitted that the campaign, if it was to qualify as an information campaign, had to be fair, equal and impartial. I did not understand counsel for the Minister to demur from that proposed test.

54. Counsel for the appellant next submitted that the onus of proof, which the appellant had to discharge, was in accordance with the balance of probabilities. He referred to the judgment of Barrington J in Hanafin v Minister for the Environment [1996] 2 I.R. 321 at page 457. What the appellant had to show was “clear disregard” by the State of the limits imposed by the Constitution. While this was the test cited by the learned President by reference to McKenna, he had fallen into error by restating “the yardstick against which the material put out by the defendants in this case must be assessed,” as requiring the appellant to show that the “breach complained of [had to] be something blatant and egregious.”

55. Counsel submitted that the Court should look at and evaluate the material itself and that it did not require the assistance of the expert witnesses. He argued that the website and the booklet was full of value judgments and slogans and that it used language amounting to open advocacy of a “yes” vote.

56. Counsel for the respondents did not dispute the authority of McKenna. He said that the burden of proof was to show on the balance of probabilities that the State had acted in clear disregard of the Constitution. As to whether the material was, in fact, fair, equal and impartial, must be tested by a reasonable and fair assessment. Children and their protection are the subject of the referendum. The government was entitled provide a public information service which amounted to an objectively fair presentation of the principal issues. The core of McKenna, counsel maintained, is that it prohibits a declared or unequivocal exhortation to vote in a particular way.

57. Counsel also invoked the inescapable normative values of the subject-matter of the referendum. Nothing can be exactly balanced. The test should be by analogy with the Wednesbury criterion, having regard to the subject-matter and to the need for the Court to avoid becoming involved in matters of political judgment. Certain subjects carry with them an inherent element of value judgement.

Conclusion

58. There is no difficulty in discerning the test which the courts apply in considering whether the State has exceeded the limits laid upon it if it is to respect the principle of neutrality in the referendum process. In common with the Chief Justice and O’Donnell J in the judgments they are delivering today, I am satisfied that the plaintiff must be able to demonstrate that the State has acted in clear disregard of its obligations. As the Chief Justice says, it is an objective test. The intention of the relevant State authority is not relevant. The test of clear disregard has been adopted by the Court in a number of cases as a guide to the circumstances in which the courts may intervene to restrain acts of the governmental organ of the State: see, for example, T.D. & Ors v The Minister for Education & Ors [2001] 4 I.R. 260, especially per Murray J at pages 336 to 337; Curtin v. Dáil Eireann [2006] 2 I.R. 556. More pertinently, it was adopted in the judgment of Hamilton C.J. in McKenna(No. 2), already cited:

      “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.”
59. Proof is to be on the balance of probabilities. The learned President, however, held that the “breach complained of must be something blatant and egregious.”

60. The President was legitimately concerned at the possibility that the courts could become involved “in assessing the merits of the substantive issues or in excessive scrutiny of each and every scrap of information disseminated by or on behalf of Government.” However, a test requiring that a breach must be shown to be something “blatant and egregious” would set a new and higher standard than that of clear disregard. It is not the standard set by Hamilton C.J. in McKenna and in a line of cases, such as Boland v An Taoiseach [1974] 1 I.R. 338. In that case, Fitzgerald C.J. said at page 362:

      “…the Courts have no power, express or implied, to supervise or intervene 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 upon it by the Constitution.”
61. The court can, by proper application of that test, avoid the traps feared by the learned President of involving itself in the judgment of political arguments or engaging in excessive scrutiny of every scrap of government information. I share the concerns expressed by the learned President. It would be most undesirable that the courts should be “called upon in virtually every referendum to perform some exercise of hyper-zealous vigilance of every piece of information disseminated by Government.” As the Chief Justice says in her judgment, it is not necessary for the Court to conduct a punctilious examination of minutiae or to nit pick through every last detail. Such a judicial practice could equally pose a danger in future for the effective working of the Referendum Commission, which must be permitted to perform its task of assisting the people in making their voting choices, free of the threat of impending and costly litigation. Contentious litigation would not be conducive to the fair conduct of the referendum campaign and would risk distracting voters from objective consideration of the issues.

62. The question on this appeal is whether the website and/or the booklet are in their general tenor fair, equal and impartial or whether they tend to favour a “Yes” vote.

63. The website commences by asking the question: “Why do we need this referendum?” From the very outset, the material tends in one direction. It proposes to offer justification for holding the referendum. It does not ask the more neutral question: do we need this referendum? Thus, the stage is set for points to be made only in favour of the need for the referendum. The answering material suggests that the Constitution is somehow deficient in failing to contain “an express statement of rights for children” and that the referendum proposal will “give people the option of updating the Constitution to reflect our shared value in relation to ensuring the protection of all our children” and that it will “give firmer recognition to the rights of children…” This answer ends with the statement:

      “Passing this Referendum will put children's needs at the centre of decision-making and will facilitate changes to adoption legislation.”
64. These statements all point unequivocally in the direction of a “yes” vote. They are not mere information. They suggest that the Constitution will be improved by the provision of an express article designed to protect children. They do not make the point that children are already, like everyone else, protected by the Constitution.

65. Under the next heading concerning “what will change if the referendum is passed,” the reader is told of the proposal to “place a dedicated Article in the Constitution which has children as its central focus” and that the “referendum is about strengthening the Constitution.

66. Under the heading, “protecting children,” the website says that, so far as children at risk are concerned, the referendum “seeks to ensure that they are protected from harm.” It ends with the unmistakeably positive statement that:

      “Overall, Article 42A focuses on the protection afforded to children under the Constitution, while respecting and preserving the rights of parents and the family.”
67. Under the FAQ which poses the question about what the referendum will change, the following very general answer is given:
      “The changes that would be brought about by the proposed Constitutional Amendment include the following:

      • the provision of express rights for all children;

      • strengthening of protections for children where parents are failing in their duties towards them;

      • the removal of inequalities in adoption between children on the basis of the marital status of their parents

      • strengthening of the principles of best interests and consideration of the views of children in child care, adoption and family law proceedings.”

68. These again are all unequivocally positive points in favour of the referendum proposal. The Constitution is to be “strengthened.” So also are the protections for children. The referendum is concerned to put the best interests of children at the heart of all decision-making.

69. It is patent, in my view, that the website and booklet were written with a view to providing support for the objectives of the referendum proposal. The material is not fair, equal or impartial. It is advocacy. It is compounded by the presence of a serious misstatement in the booklet of the effect of the referendum proposal. As explained by the Chief Justice and by O’Donnell J., this part of the booklet wrongly stated or implied that certain aspects of the referendum proposal consisted in a continuation of existing provisions. I have no doubt that this was all done bona fide and with consciousness that the decision in McKenna had to be respected. However, the work was carried out on a mistaken understanding of the need to be neutral. This is exemplified in the views of the two independent experts who gave evidence on affidavit for the State. Neither of them swore that the material was actually neutral. Dr O’Malley thought that the intrinsic subject-matter of the referendum proposal meant that mere “explanation of context and the project of the amendment” was such that a reader of the material would be attracted to it “because of the substantive factual merits disclosed and the fact that children are the recipients” and that the presentation was not responsible for that attraction..

70. Professor Sinnott was of the view that it was 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.” He did not find evidence of an intention to influence voters, adding the rider: “certainly not to any extent that could be reasonably avoided in the creation of the materials in question.”

28. In my view the campaign for the referendum conducted by the Minister under the guise of an information campaign was not fair neutral and impartial and its conduct amounted to clear disregard of the limits on the acts the State may perform during a campaign concerning a proposal to amend the Constitution. It is not equal or impartial. It is imbued throughout with value judgments, with positive statements about the several aspects of the referendum proposals. I share the reluctance of the learned President to pass judgment on statements made by responsible actors in the political domain; this should not be the business of the courts. I reach this conclusion with reluctance. I would not pass judgment based on an occasional or stray partisan twist or refined analysis of individual statements. The striking feature in the present case is the one-sided tendency of the campaign when viewed as a whole. Since it was funded from public monies and was not permitted in accordance with the principles laid down by this Court in McKenna v. An Taoiseach (No. 2) [1995] 2 I.R. 10. These are my reasons for agreeing with the decision of the Court to grant the declaration already made.



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