Private campaigner for public

The man behind yesterday’s Supreme Court ruling on the children’s referendum would like to stay that way — behind the scenes.

Intensely private, Mark McCrystal managed to spend half an hour fielding questions from Joe Duffy, who could normally get a life story out of a stone, without yielding any personal information.

What is known about the man whose name is now synonymous with a kick in the Government’s furiously clenched teeth is that he is aged 42, from Dublin but with northern roots, and single.

An electrical engineer by training — he conceded that much publicly — he uses those skills to keep himself just ticking over financially. His main occupation and preoccupation is as an “independent, non-profit organisation management professional”.

That’s how he describes himself on Linkedin, although his entry on the website is virtually devoid of additional information. A friend said it meant he worked with voluntary organisations and campaign groups dedicated to Catholic values and the preservation of the family.

“He is a passionately devout Catholic and he lives his faith. He could be extremely successful in business because he is a very skilled, very able man, but he devotes his time to helping people and causes. He is an extraordinary person,” the friend said.

Not so, says McCrystal, who insists he is just an Irish citizen who took the case on behalf of his fellow citizens because their Government was doing wrong.

It’s a case of third time victorious for McCrystal, who previously went to the courts in failed attempts to challenge the result of the second referendum on the Lisbon treaty in 2009 and the decision to jointly hold the referenda on judges’ salaries and Oireachtas inquiries on the same day last year.

While he is no legal expert and used a legal team who worked on a pro bono basis for the Supreme Court case, McCrystal is nonetheless a thorough researcher and very well read, with a particular interest in history. He now has his own place in it.

Q & A with Laura Cahillane

Q. What did the Supreme Court rule?

A. The Supreme Court ruled that the Government acted “wrongfully” in spending public money on a website, booklet, and advertisements on the children’s referendum “in a manner which was not fair, equal or impartial”.

The five-judge panel held that it was “clear that there are extensive passages in the booklet and on the website which do not conform to the McKenna principles” but it was satisfied that not all of the website or the booklet was 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.”

Thus, the court did not grant an injunction, as it assumed the State would cease publishing and distributing the information.

Q. What was the McKenna judgment?

A. In 1995, the Supreme Court ruled in favour of a case taken by then Green Party TD Patricia McKenna, who claimed it was unconstitutional for the government to spend public money campaigning solely for a yes vote in the impending divorce referendum. The ruling also led to the setting up of the Referendum Commission and to the stipulation that broadcasters give equal time to both sides in any referendum coverage.

Q. What effect did the ruling have on future referenda?

A. It created a dilemma in terms of what governments should do in the run-up to a referendum. One option was to fund neither side. This was unwelcome, as it was believed advertising was necessary to get a reasonable turnout.

Indeed, there is also an argument that there is a constitutional duty on the Government to ensure citizens are adequately informed to vote at a referendum and that this involves expenditure.

Another option would have been to distribute funds to groups on either side, but there was a fear this might indirectly lead to funds being given to subversive groups. So, the solution reached was the establishment of the Referendum Commission, by the Referendum Act of 1998. The idea is that this is an impartial body, which spends public funds to inform citizens about referenda in a neutral manner, without bias on either side.

Q. What does the Supreme Court ruling mean for tomorrow’s vote?

A. Questions will now arise over the legitimacy of the vote.

In the divorce referendum, the removal of the ban was carried by a 9,000-vote majority, from a ballot of 1.6m. This meant the referendum was passed by a majority of less than 1%. An action by the leader of the no campaign followed. Des Hanafin claimed the referendum was constitutionally invalid because of the funds which had been unconstitutionally voted and spent, especially in view of the slim majority.

However, seeing as “upsetting a referendum vote would be an awesome undertaking”, the court rejected Mr Hanafin’s challenge. It was held that there must be a presumption in favour of the integrity of the referendum. In order to prove his case, Mr Hanafin would have had to demonstrate that 9,000 votes had been affected — that is shifted from no to yes, or possibly from abstention to yes — by virtue of the advertising which had been published.

The court said it was not persuaded by expert evidence to the effect this shift would, in all probability, have occurred. Instead, the court wanted evidence of actual votes, while unhelpfully pointing out that the ballot was secret (Art 16.1.4). Mr Hanafin was unable to provide this and so lost the case.

Q. So, will we see a court challenge to the referendum result?

A. While it is quite possible that a challenge will be taken against tomorrow’s vote, in the event of a slim majority in favour of the amendment, it is likely that the Hanafin decision will be followed.

In order to succeed, any challenger would have to prove that the unconstitutional spending of public money on the yes side definitively influenced the voters in favour of the amendment. Whether or not the decision will have an impact on the vote remains to be seen.

* Laura Cahillane is a lecturer in law at University College Cork

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