Saturday 25 March 2017

Court ruling unlikely to impact on actual vote

Dearbhail McDonald

Dearbhail McDonald

What just happened?

The Supreme Court has ruled that the Department of Children and Youth Affairs produced information in its Children's Rights Referendum website and booklet, parts of which were not fair, equal and impartial under the McKenna principles. It spent €1.1m on the information campaign.

What is McKenna?

In 1995 the Supreme Court ruled -- in a case involving the Government's then IR£500,000 spend on the Divorce Referendum to advocate a Yes vote -- that it was unconstitutional for the Government to use public monies to promote a particular result in a referendum. If the Government spends money on a referendum campaign, the information must be fair, equal and impartial.

So what went wrong?

An engineer, Mark McCrystal, challenged the Government's €1.1m spend, claiming that the website, booklet and ads were in breach of McKenna.

Two weeks ago, Mr McCrystal took a High Court action seeking a declaration that the Government's information campaign breached McKenna and sought an injunction to halt the information campaign.

What did the Supreme Court say?

Mr McCrystal lost his High Court case but appealed to the Supreme Court, which ruled that there are extensive passages in the booklet and on the website which do not conform to McKenna.

It said that this material includes a misstatement as to the effect of the referendum.

The court granted a declaration that the Government acted wrongfully by spending money on information that was not fair, equal or impartial. But it did not injunct the Government because it assumed it would stop publishing and distributing the information.

What did the Government do?

Within hours of the ruling, was shut down. It was later changed to include only basic information on the wording and the planned adoption bill.

Does the referendum go ahead?

Yes, the ruling does not affect the holding of the referendum.

If the referendum is passed, could the vote be declared invalid later?

It's unlikely. After the 1995 Divorce Referendum (passed by just 9,000 votes), Des Hanafin challenged the validity of the poll, but he couldn't prove that the advertising had a material effect on the referendum.

If we vote Yes, even by a slim majority, any challenge is unlikely to succeed unless a challenger proves that the now unconstitutional use of government money definitively influenced voters to vote Yes.

Irish Independent

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