Thursday 27 June 2019

Dearbhail McDonald: Children's referendum: a Supreme putdown

LAST month the Supreme Court ruled that the Government's €1.1m information campaign for the Children's Referendum – one that ran parallel to that of the Referendum Commission – was not impartial and breached the McKenna rules which ban the Government from using public funds to advocate a particular outcome in a referendum.

The fact that the Government's information campaign was shot down was bad enough – the self-inflicted wound may yet lead to the appalling and unprecedented political vista of the outcome of a referendum being set aside.

But the reasons delivered by the Supreme Court yesterday are politically devastating as they could sound the death knell for parallel information campaigns by the Government in future referenda.

The Supreme Court ruling is unlikely to improve, in the wake of controversial cuts to judges' pay and pensions, the strained relationship between the executive and the judiciary anytime soon.

All of the written rulings by the Supreme Court acknowledge the good faith on the part of what Judge Nial Fennelly describes as "the responsible actors in the political domain".

The judges were at pains not to pin any personal blame on individual ministers or officials and acknowledged that the Government is free to campaign for a Yes vote by any means it likes – as long as it doesn't use public monies to do so.

And the court duly acknowledged that great care was taken by the Government to avoid a breach of McKenna. None of the pleasant overtures, however, could conceal the force of the court's unanimous findings that the Government had effectively waged a campaign for a Yes vote in material on its website, booklets and in advertisements that had purported to be neutral.

The criticisms of the campaign material were legion, ranging from slogans such as "protecting children" and "supporting families" to comments from some of the judges that the material was imbued with value judgments.

One of the most damning elements of the Supreme Court's critique was the observation by Judge Fennelly that the Supreme Court was not invited by the Government (or engineer Mark McCrystal, who opposed the information campaign) to reconsider, set aside, reinterpret, distinguish or qualify the McKenna case.

In light of the 17-year furore over McKenna and the amount of (mostly political) criticism it attracts, it is staggering that the Government did not avail of the opportunity to challenge it.

Not only has the Government forfeited that right – and is now stuck with McKenna – it has also been effectively warned to keep its nose out of the information business in the run-up to a referendum.

Several of the judges drew attention to the fact that many other countries have laws banning, regulating or controlling the use of public funds in referendum campaigns with a view to achieving fairness and equality of opportunity for both sides.

The Chief Justice, Susan Denham, queried whether it was fair or wise to ask a minister sponsoring a referendum to publish neutral information, adding that the role may be best performed by a body not invested in the referendum.

Her colleague Donal O'Donnell, who said that the Referendum Commission (against whom no complaint was made) is now "an established and welcome feature of the landscape" in any referendum campaign, went even further.

He noted the Government's own admission that it can never be strictly neutral in a referendum campaign.

And Judge O'Donnell said that the decision to run a separate information campaign not only ran the risk of legal action but also ran a risk of considerable confusion and the consequent undermining of the function of the Referendum Commission.

Where does that leave the Government whose "hyper deferential" test for McKenna was rejected by the Supreme Court? Even if it successfully defeats the forthcoming challenge to the outcome of the Children's Referendum, it will tread very carefully before it runs its own parallel information campaign again.

Irish Independent

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