Supreme Court declares government referendum spending on Children's Referendum material breached constitutional impartiality principles.

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

Ruling of the Court delivered on the 8th day of November, 2012 by Denham C.J.

1. This is an appeal by Mark McCrystal, the plaintiff/appellant, referred to as “the appellant”, from the judgment and order of the High

Court (Kearns P.) given on the 1st November, 2012.

2. This matter was dealt with as a matter of urgency by the High Court, as it is by this Court, as the appellant has sought

declarations, an injunction and consequential orders which have a relevance to the Referendum taking place on the 10th November,

2012.

3. In McKenna v. An Taoiseach (No. 2) [1995] 2 I.R. 10, it was held that the Government in expending public moneys in the promotion

of a particular result in a Referendum process was in breach of the Constitution.

The people adopted the Constitution 75 years ago. The Constitution belongs to the people and may be amended only by the people in

a Referendum. It is this democratic process which is protected by the McKenna principles. Public funding should not be used in a

Referendum to espouse a particular point of view.

4. The McKenna principles may be found in the several judgments in that case. These principles, which are not in dispute, are

consistent with standards recognised both nationally and internationally for a Referendum process, such as the European Commission

for Democracy through Law (Venice Commission), Code for Good Practice on Referendums, adopted by the Council for Democratic

Elections at its 19th Meeting (Venice, 16 December, 2006) and the Venice Commission at its 70th Plenary Session (Venice, 16 – 17

March, 2007).

5. At issue in this case is the application of these principles to a booklet and a website, both entitled “Children’s Referendum”, and

advertisements, published and disseminated by the Department of Children and Youth Affairs, on foot of moneys voted by the

Oireachtas, which the appellant submits breach the McKenna principles.

6. The Court is required to give its decision promptly, in view of the pending Referendum to be held on Saturday, 10th November,

2012. The substance of that proposal is a matter for the people alone. The Court will give its ruling today and judgements will be

delivered on Tuesday, 11th December, 2012.

7. The Court has concluded that it is clear that there are extensive passages in the booklet and on the website which do not conform

to the McKenna principles. This material includes a misstatement, now admitted to be such, as to the effect of the Referendum.

8. The Court is satisfied that while not all of the website or the booklet are in breach of the McKenna principles, because of the

overall structure of the booklet and website, it would not be appropriate for the Court to redact either.

9. Accordingly, the Court would grant 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. The Court does not consider it either appropriate

or necessary to grant an injunction, as it is to be assumed that the respondents will cease distributing and publishing the material.