CHILDREN’S Minister Frances Fitzgerald played a key role in drafting the children’s referendum website and booklets at the centre of an embarrassing court setback.
The Supreme Court ruled some of the information published by the Government about the poll was not “fair, equal and impartial”.
The five-judge court, led by Chief Justice Susan Denham, said extensive passages in the booklet and on the website did not conform to the 1995 McKenna case, which bans the Government from using public money to promote a particular result.
Court papers obtained by the Irish Independent reveal the hands-on role played by Ms Fitzgerald, who defended her department’s role at a specially-convened debate in the Seanad.
The questions, framed by the minister, her advisers and other government officials, were ultimately approved by the office of the Attorney General.
Within hours of the ruling, which does not affect the holding of the referendum, the Government shut down the special website www.childrensreferendum.ie.
The website was later changed to include only basic information on the wording of the constitutional amendment and the scheme of the Adoption Bill.
“This decision solely relates to the information campaign of the Department of Children. It doesn’t relate to the Yes campaign run by Fine Gael and the Yes campaign run by all of the children’s organisations,” he said.
But after pointing the finger firmly in the direction of Ms Fitzgerald, Mr Varadkar said he “did not know” who was responsible for getting the wording wrong.
In the court papers, an affidavit by Elizabeth Canavan, assistant secretary general at the department, shows the content for the website emerged from a list of questions developed by the minister and another list of questions provided by PR firm MKC.
The Government drafted in Gerard Angley, a senior civil servant at the Department of Finance who worked on the Stability Treaty.
Mr Angley said in court papers that it was clear Ms Fitzgerald’s department was “consistently conscious of the legal environment, including McKenna”.
A meeting was held in early August to brief officials, advisers and all consultants on the compatibility of the children’s referendum information campaign with McKenna.
But the Supreme Court granted engineer Mark McCrystal, who challenged the Government’s €1.1m spend, a declaration that the State acted wrongfully in spending money on the information campaign in a manner that was not fair, equal or impartial.
The High Court had previously said the material used in the Government’s campaign was “neutral, balanced and had the primary aim of informing the public about the forthcoming referendum”.
Ms Fitzgerald told the Seanad that her department had acted in good faith and with the best intentions to comply with the McKenna judgment.
Mr Varadkar said there was no question of the referendum not going ahead, after five Independent TDs – four of them confirmed Yes voters – called on the Government to postpone it.
The Government was shielded from a political backlash because all parties in the Dail are supporting the Yes side.
Independent Donegal South West TD Thomas Pringle said that any additional cost incurred following the Supreme Court ruling was the Government’s own fault.
He was supported by fellow Independents Tom Fleming, Finian McGrath, Shane Ross and Mattie McGrath.
Mr McGrath is the only TD in the Dail who is calling for a No vote.