On the face of it, the project seemed innocuous enough.
The purpose was to make children aware of their rights and to let the ombudsman know what their priorities were.
However, not all was plain sailing. In fact, there were several things wrong with the project.
In my view, the ombudsman has exceeded her powers. She sought the views of 200,000 schoolchildren in a pseudo-referendum and enlisted the staff and curriculum of the Department of Education.
However, on November 9, the High Court, in refusing to accept a judicial review of the subject, rejected these views. But serious concerns still remain.
In the documents on the Big Ballot, available on her office’s website, the ombudsman
1. Implied that “children’s rights” could be obtained through her.
2. Confused rights already in existence under the constitution with rights under the UN Convention on the Rights of the Child (yet to be voted on by the Irish people).
3. Made almost no reference to the position of parents, and none that I could find to the constitution.
4. Made no reference to the preamble to the UN convention. This refers to the need for “special safeguards and care … before as well as after birth” — a very important issue, and
5. Cherry-picked from other articles in the UN convention.
The ombudsman (selected and appointed by the Government) may well argue that her real role is to secure the implementation in Ireland of the UN convention.
But this is no more than a proposal that must be accepted (or rejected) by the Irish people, and the Irish people alone. The Big Ballot project anticipated a particular outcome and it used children to further this end.
And the promotion, at taxpayers’ expense, of an outcome in a referendum favoured by the Government is contrary to the judgement in the McKenna case in 1995.
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