Government in disregard of McKenna principles

McCrystal v the Minister for Children and Youth Affairs, the Government, Ireland and the Attorney GeneralNeutral citation: 2012 IESC 53

Supreme Court

Judgment was delivered on December 11th by the Chief Justice, Ms Justice Susan Denham, with Mr Justice John Murray, Mr Justice Adrian Hardiman, Mr Justice Nial Fennelly and Mr Justice Donal O’Donnell concurring.

Judgment

Material published by the Government in advance of the children’s referendum favoured a Yes vote, was not fair, equal or impartial and was in clear disregard of the McKenna principles which outlined the limits imposed by the Constitution on what the State may do in a referendum.

Background

Mark McCrystal had made an application to the High Court in October claiming the launch of a public information campaign run by Minister for Children and Youth Affairs Frances Fitzgerald, in advance of the children’s referendum, was in breach of the Constitution.

He believed public money, €1.1 million, had been spent on a biased campaign in favour of the 31st amendment to the Constitution. This was against the McKenna principles, as outlined in McKenna v An Taoiseach (no 2) (1995) IR 10, a previous challenge to the legality of a government referendum campaign. He sought an injunction to stop expenditure of public monies on material to promote a Yes vote and to restrain the distribution of the material.

High Court president Mr Justice Nicholas Kearns found against Mr McCrystal on November 1st. He said the Government’s material was neutral and balanced and did not breach the McKenna principles,

An appeal was taken to the Supreme Court. The grounds included that Mr Justice Kearns erred in holding that images of children used on the material were neutral, erred in finding that the material did not advocate a particular outcome and that the advertising did not sway voters.

Ms Justice Denham said the test to be applied to trigger court intervention was established in McKenna and was whether “the circumstances are such as to amount to a clear disregard by the Government” of the McKenna principles. It was “an objective test”. The High Court had stated that the breach must be “something blatant and egregious”, but this was not correct.

The chief justice outlined principles drawn from the McKenna case. These were that the Government was entitled to campaign for a Yes vote by any method, but not using public funds, and any information disseminated by the Government must be “equal, fair, impartial and neutral”.

Members of the Government were entitled to advocate in “their personal, party or ministerial capacity” for a Yes vote and could use their State transport and avail of media to put forward their view.

The McKenna judgment found the right to equality applied to the referendum process, Ms Justice Denham said, and spending public money on one side of the referendum put the voting rights of one citizen above another.

The judgment also found it was “an interference in the democratic process” to spend public money on one side and the Government had to observe fair procedures. “The scales must be held equally between those who support and those who oppose an amendment to the Constitution.”

The right to freedom of expression also meant public funds should not be used to fund one side.

Decision

The court examined the booklet, website and advertisements produced by the Government and found “on their face” they “failed the test of being fair, equal and impartial, failed to be neutral and failed to hold the scales equally between both sides”.

Ms Justice Denham said language in the material including the slogans “protecting children”, “supporting families” and “why do we need a referendum?” were not impartial or fair and did not pass the equality test. Images of children “involved a sense of their youth and vulnerability” and when combined with phrases such as “protecting children”, were partial. Including the “like” link “associated with the website Facebook”, although removed, “illustrated the campaigning tone of the website,” she added.

A “significant” error in the booklet which listed key requirements that would “continue” if the referendum went ahead was a “crucial inaccuracy”.

“A citizen who read it would be more likely to be lulled into complacency and acceptance of the proposed amendment,” Ms Justice Denham said.

There was no attempt to remedy the error, despite acceptance of it by the respondents on November 1st, and they continued to distribute the booklet. The word “continue” was removed from the website on November 7th. The correction was not brought to the attention of the public.

Television, radio and newspaper advertisements were clearly produced with the benefit of expert advice in the area of media communications, with €1.1 million spent by the minister on “various consultants”.

“In an event as important and solemn as a referendum, there is a need for restraint in the promotion of views paid for by public funds,” Ms Justice Denham added. “This restraint was exemplified by the Referendum Commission’s advertisements. In the Minister’s advertisements when taken as a whole, they promoted a Yes vote and were not impartial.”

Although with modern communications we were living in a different time to McKenna, one aspect remained constant, Ms Justice Denham said, that publicly funded information must be “fair, equal, impartial and neutral”.

The accumulative effect of the matters raised amounted to “a clear disregard” of the McKenna principles.

In his concurring judgment, Mr Justice Fennelly said it was “patent” that the material amounted to “advocacy”.

“It is imbued throughout with value judgments, with positive statements about the several aspects of the referendum proposals,” he said.

Mr Justice O’Donnell noted that “subtle advocacy may be much more effective than a blatant or egregious advocacy”. The presentation of the images and slogans in the material were 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,” Mr Justice O’Donnell said.

Mr Justice Murray concluded that the material as a whole “advocated the case for a Yes vote without explicitly calling for a Yes vote. This was done, with the aid of public funds, to the disadvantage and detriment of those making the case for a No vote.”