Friday 17 November 2017

High Court challenge to children's referendum

Aodhan O'Faolain

THE Government should not be spending some €1.1m of public monies on a one-sided information campaign about the up-coming children's referendum, it has been claimed in the High Court.







Mark McCrystal claims the Government is using information that is not neutral but rather designed, intended and likely to promote a particular outcome in the November 10 referendum.



Mr McCrystal an engineer of Kilbarrack Road, Dublin, claims the State is in breach of the 1995 Supreme Court judgment in the McKenna case to the effect that referenda should be explained to the public in an impartial manner.



While he has no objection to the State arguing for a Yes vote, it could only do so by means not involving expenditure of public money, he said.



The claims were made on the opening day of Mr McCrystal's action against the Minister for Children and Youth Affairs, The Government of Ireland, Ireland and the Attorney General. The defendants deny his claims.



He is seeking a declaration from the court that the State is not entitled to use public money on the website and booklet concerning the referendum on the Thirty-First Amendment of the Constitution (Children) Bill 2012. He is also seeking an injunction requiring the state to remedy the situation.



Today counsel for the State David Hardiman said that as part of its defence the State will assert the language used in the booklets and website is objective.



Counsel added that the Mr McCrystal must show that the material used is in clear disregard of the McKenna judgment, which counsel submitted he has failed to do.



Opening the case, Richard Humphreys SC, for Mr McCrystal, said the government's website lacks balance and fails to acknowledge the cons of the amendment as well as the pros.



The website also glosses over the diminution of existing rights affected by the amendment, and does not give information that conflicts with the narrative adopted by the Government.



It also uses an "emotionalised emphasis" on children by including child pictures such as the websites design logo of three children holding hands, and child handwriting to promote a yes vote.



Counsel added other images including the use of a 'smiley face' on the website also promoted a yes vote and gives the impression that the amendment is necessary to protect children and families.



Similarly the booklet which has been delivered to houses sets an emotion persuading tone to the referendum as a pro-child affair, and links it to reform of the Government's child protection policy. It too glosses over difficulties arising from the amendment, counsel said.



Counsel said the booklet also contains "serious inaccuracies", and was different to the information booklet produced by the referendum commission, to which the booklet makes no reference too.



A sum of €3m had been allocated for the information campaign. Counsel said that €1.1 had been used by the Government for its website and booklet. The bulk of the €1.1m had been spent on costs including website development, PR and Market research firms, advertising the delivery of the booklets.



In an affidavit, Mr McCrystal said he has brought the action as a concerned citizen, with an interest in social and political affairs. The acts of the State complained of threaten his democratic and constitutional rights, he said.



In an affidavit journalist and commentator John Waters, who is opposed to the amendment because he believes it will subvert the architecture of family rights, said that the Government's website and booklet endorses a yes vote without offering a hint that there maybe weighty or contrary arguments to the amendment.



The material used by the Government, he added "entirely fail as neutral instruments of impartial information." He described material used by the Government in regards to TV, radio and newspapers adverts as being "subliminal messages" advocating a yes vote.



The hearing continues.

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