The Government’s campaign favoured passing the referendum, it found.
In judgments yesterday, all five judges agreed with Dublin engineer Mark McCrystal that the Government campaign breached principles requiring publicly funded information in a referendum to be presented in a balanced way.
The judgments are expected to be relied upon in the forthcoming action by Dublin homemaker Joanna Jordan aimed at overturning the referendum result. Ms Jordan, who campaigned for a no vote, claims the outcome of the poll was materially affected by the Government’s “one-sided” information campaign.
Yesterday, while accepting that the Government and children’s minister acted in good faith, the Supreme Court said the Government’s campaign, which cost the taxpayer €1.1m, ran parallel to the information campaign of the Referendum Commission and the latter campaign was not challenged or criticised.
Most of the €1.1m was on advice from a PR agency and devising a campaign involving a website, booklet, and buying radio and TV advertisements, Mr Justice Donal O’Donnell observed.
The information given out by the commission showed it was possible to state the facts and issues without favouring the proposal, he said. The Government’s decision to run a campaign ran not just a risk of legal challenge but of “considerable confusion”.
The chief justice, Ms Justice Susan Denham, said the 1995 Supreme Court judgment in the McKenna case required the Government to act in referenda within the restraints imposed by the Constitution and the courts must intervene where there was “a clear disregard” of those restraints.
In dismissing the challenge by Mr McCrystal to the Government’s campaign, the High Court had erred in finding there must be a “blatant and egregious” breach of the McKenna principles before the court would intervene, she said. The test was whether the campaign breached the principles requiring publicly funded information to be fair, equal, impartial and neutral, she said. The intention of the Government was irrelevant to that.
Several of the judges analysed the Government’s information and agreed much of it favoured the proposal. Language used in the material, such as slogans “Protecting Children”, favoured one side; for some against the referendum, it was not about protecting children but would involve more State intervention, the chief justice outlined.
Mr Justice John Murray said the published material contained “just one narrative, a narrative in support of a yes vote without expressly calling for a yes vote”, all done with public funds to the detriment of those advocating a no vote.
The Government campaign breached the constitutional right of the people to a fair and democratic referendum process, he said.