The judgment saw recriminations fly within the cross-party consensus pushing for the constitutional change, as Fianna Fáil and Sinn Féin attacked the Government’s “arrogance and incompetence”.
However, both opposition parties said they would still be calling for a yes vote — although leading no campaigners warned such a result would now be “contaminated”.
Ministers rejected a plea by five independent TDs to invoke emergency legislation to put the referendum back until early next year, but legal experts warned a yes vote was likely to face serious court challenges.
The Supreme Court agreed with Dublin engineer Mark McCrystal’s view that the Government “had acted wrongfully in expending or arranging to expend public monies on the website, booklet, and advertisement in relation to the referendum… in a manner that was not fair, equal or impartial”.
The Supreme Court found that “extensive” elements of the Government website and booklet were not in line with the McKenna judgment, under which taxpayers’ money cannot not be used to advocate one side in a referendum campaign.
Despite the ruling, Justice Minister Alan Shatter refused to apologise for the misuse of taxpayers’ money, and insisted that the substance of the arguments for a yes vote had not been affected by the ruling.
Mr Shatter said the constitutional change was needed to properly protect children.
Leading no campaigner John Waters said any yes victory would now be “contaminated”.
“This referendum now will be in breach of natural justice. If it is a yes vote, that vote will be contaminated by these circumstances, which are much more serious than the minister has outlined,” he said.
“The bottom line here is that the Government has been found to have misappropriated public money in order to propagandise its own agenda in contravention of the McKenna judgment and of the constitution.”
Frances Fitzgerald, the minister for children, insisted that legal advice had been taken by the Government and a full response would have to await publication of the detailed verdict on De 11.
In a further embarrassment for the Government, Mr McCrystal was represented in the court action by Richard Humphreys SC, who is also a legal adviser to the Labour Party.
The Supreme Court did not call for the referendum to be stopped and noted that the Government’s campaign was separate from the €1.9m impartial campaign run by the Referendum Commission.