Analysis

Wednesday 30 July 2014

Yes campaign is 'good', but could soon become 'not good'

Published 09/11/2012|05:00

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ONCE, when asked to sum up the state of the Russian economy in one word, then President Boris Yeltsin responded: "Good". When asked to sum it up in two words, Yeltsin paused before replying: "Not good." The Government has now discovered that when it comes to referendum campaigns, sometimes the less you say the better.

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Much of the drama lies in the speed at which events have unfolded. Last Thursday the President of the High Court Mr Justice Kearns looked at the Government's literature and was satisfied that "scrupulous care has been taken to at least try to avoid falling foul of McKenna".

He concluded that "the campaign run by the defendants contains material which is neutral, balanced and has the primary aim of informing the public about the forthcoming referendum". Precisely one week later, the Supreme Court looked at the same material and reached the opposite conclusion.

The Chief Justice stated that "it is clear that there are extensive passages in the booklet and on the website which do not conform with the McKenna principles. This material includes a mis-statement, now admitted to be such, as to the effect of the referendum".

With hours to go until polling opens, the real question now is what happens next? The Supreme Court has held that aspects of the Government's information campaign were unlawful in so far as public money was used to promote a Yes vote instead of simply providing neutral information. While the Government has now withdrawn the offending material, the question arises as to whether the damage has already been done and so whether a fair vote is or is not possible tomorrow.

One possibility is that the result of the referendum could be challenged after the votes are counted but before the provisional result is formally confirmed.

We have been here before. A week before the divorce referendum in 1995, Ms McKenna obtained a ruling from the courts that the Government's use of public money to promote a Yes vote was unlawful. The Government immediately stopped its campaign and a week later the referendum was passed.

After the vote was held, Des Hanafin sought to overturn the result. The Supreme Court accepted that if you could prove that the result of a referendum had been materially affected by an unlawful act, then it could be overturned. However, it refused to interfere with the result for two reasons. First, because the unlawful campaign had stopped a week before the vote, the public had been given sufficient time to be decontaminated from the effect that it might have had on them.

And second, the Supreme Court said it would presume that members of the public were capable of making up their own minds as to how they wanted to vote and were not unduly influenced by advertising and the like. Clearly the first of these arguments does not apply to the current crisis since the unlawful website was only removed a day-and-a-half before tomorrow's vote and it is impossible to take back the booklets that have been delivered to homes around the country.

However, the second reason is the one that might save the Government since it may be able to argue that its unlawful campaign has not actually changed anyone's mind. Of course that argument raises an interesting scenario.

A Government that has spent millions of euro on advertising in the belief that it can influence people may find itself having to argue that, in fact, the advertising is no use at all or, as Boris Yeltsin might say, it has gone from being "good" to "not good".

Irish Independent

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