THE SUPREME COURT
Appeal No. 486/12
Denham C.J. Murray J. Hardiman J. Fennelly J. O'Donnell J. Between/ Mark McCrystal
Plaintiff/Appellant
and
Minister for Children and Youth Affairs,
Government of Ireland, Ireland
and the Attorney General
Defendants/Respondents
Judgment delivered on the 11th day of December, 2012 by Denham C.J.
This Appeal
1. This is an appeal by Mark McCrystal, the plaintiff/appellant, referred to as "the appellant", from the judgment and order of the High Court (Kearns P.) given on the 1st November, 2012.
2. The Minister for Children and Youth Affairs, the first named defendant/respondent, is referred to as "the Minister", and the defendants/respondents, the Minister, the Government of Ireland, Ireland and the Attorney General, are referred to collectively as "the respondents".
3. This matter was dealt with as a matter of urgency by the High Court, as it was by this Court, because the appellant sought injunctions relevant to the referendum taking place on the 10th November, 2012.
Ruling
4. On the 8th November, 2012, this Court delivered a Ruling on this appeal. The Court concluded that it was clear that there were significant passages in the Children's Referendum information booklet and on the website, www.childrensreferendum.ie, that did not conform to the principles enunciated in the judgment of this Court in McKenna v. An Taoiseach (No. 2 ) [1995] 2 IR 10, referred to as "the McKenna principles". Further, that while not all of the website or the booklet were in breach of the McKenna principles, it was not appropriate for the Court to redact either because of the overall structure of the booklet and website. Accordingly, the Court granted a declaration that the respondents had acted wrongfully in expending or arranging to expend public monies on the website, booklet, and advertisements, for the purpose of promoting a particular result in the Referendum of the Thirty-First Amendment of the Constitution (Children) Bill, 2012. The Court did not consider it either appropriate or necessary to grant an injunction, as it was assumed, correctly, that the respondents would cease distributing the material. It was stated that detailed judgments would be delivered on the 11th December, 2012. This judgment gives my reasons for that ruling.
Referendum
5. On the 19th September, 2012, the Minister for the Environment, Community and Local Government established a Referendum Commission under the Referendum Act, 1998, as amended.
6. The Thirty-First Amendment of the Constitution (Children) Bill, 2012 was passed by both Houses of the Oireachtas on the 3rd October, 2012.
7. Arrangements were made for the holding of the referendum and the 10th November, 2012, was appointed polling day.
8. On the 16th October, 2012, the Referendum Commission launched its public information campaign, by establishing a website and commencing distribution of an information guide on the referendum to all homes in the State.
9. The appellant made no complaint as to the impartiality or objectivity of the efforts of the Referendum Commission to provide neutral information to the public in accordance with the statutes.
10. Separately from the Referendum Commission, the Minister also commenced an information campaign. This included a website, and, on the 19th October, 2012, the commencement of delivery of an information booklet to all homes.
11. The appellant claimed that the information campaign run by the Minister, wrongfully and in breach of the Constitution, was not confined to the neutral transmission of information, but was designed and/or intended and/or likely to promote a particular result. It was claimed that, wrongfully and in breach of the Constitution, the respondents and each of them had engaged in expending or arranging to expend public monies on promoting a particular result.
Reliefs Sought
12. The appellant sought an injunction:
(a) restraining the respondents from expending public monies on websites, booklets and/or otherwise for the purpose of promoting a particular result in the referendum on the Thirty-First Amendment of the Constitution (Children) Bill 2012.
(b) restraining the respondents from representing as information material which is of a nature designed to promote a particular result.
(c) requiring the termination and remedying of any such expenditure and/or representation.
(d) restraining the distribution of the proposed government booklet until the determination of these proceedings and/or this motion.
13. The appellant did not seek an order restraining the holding of the referendum itself.
The High Court
14. By consent, in the High Court, it was ordered that the hearing of the motion would be the hearing of the action.
15. The High Court refused the relief sought, and ordered that the appellant pay to the respondents the costs of the proceedings when taxed and ascertained.
16.(i) The High Court (Kearns P.) delivered an ex tempore judgment on the 1st November, 2012.
(ii) The learned President considered the respondents' website, booklet and advertisements.
(iii) The High Court noted that funds voted by the Oireachtas to the Department of Children and Youth Affairs for 2012 included €3 million in respect of expenditure on the referendum. Of this €3 million, the Minister allocated to the Referendum Commission for its statutory functions €1.9 million. The balance of €1.1 million was used by the Minister, inter alia , to design and operate a website, to design and print a booklet, to take opinion polls, and to print media advertisements.
(iv) The High Court was asked to consider whether or not the principles outlined in McKenna v. An Taoiseach (No. 2 ) [1995] 2 IR 10, referred to as " McKenna ", had been observed by the respondents.
(v) The High Court considered the test to be applied by the Court and whether the principles established in McKenna had been breached.
(vi) Having quoted Hamilton C.J. in McKenna at p. 32, and said that that was the yardstick against which the material disseminated by the respondents in this case must be measured, the learned President stated:-
"The breach complained of must be something blatant and egregious. It must be something which is to be seen or found in the presentation of the proposal and not be a matter which to quote counsel for the defendants, ‘mires' the court in assessing the merits of the substantive issues or in excessive scrutiny of each and every scrap of information disseminated by or on behalf of Government. Such an approach would place the courts in a situation where, having entered into this particular domain, they could be called upon in virtually every referendum to perform some exercise of hyper-zealous vigilance of every piece of information disseminated by Government. I cannot believe the Supreme Court in McKenna (No. 2) intended any such consequence. It must be remembered that in McKenna (No. 2) the Dáil had voted £500,000 for the express purpose that the same be used in a publicity campaign to encourage a Yes vote."
Thus, the President appeared to be adopting a test that the breach must be "something blatant and egregious", and that "it must be something which is to be seen or found in the presentation of the proposal …"
(vii) The High Court then considered the website, booklet and advertisements. Affidavits that had been filed were referred to, and it was held:-
"While this must of course be my own personal view and others might take a different view, I do not believe on the basis of the evidence that it could ever be said that there is here what might be characterised as a clear constitutional abuse or a manifest solicitation to vote in a particular way.
I regard the [respondents'] television, radio and print media advertisements as particularly inoffensive. These ads could not be interpreted as swaying voters in any way other than encouraging voters to vote. All three advertisements contain the words ‘The Children's Referendum on Saturday November 10th will give the people of Ireland the opportunity to decide about the place of Children in our Constitution' and ‘It's all about them … but it's up to you!'. There is no objective construction of these sound bites to interpret them as advocating a Yes vote.
Having considered all of the evidence and legal arguments put before me, I am satisfied that the campaign run by the [respondents] contains material which is neutral, balanced and has the primary aim of informing the public about the forthcoming referendum. I do not find that the [respondents'] campaign can be said to plainly favour a particular outcome so that it is unconstitutional or wrongful. I therefore refuse the various reliefs as sought by the [appellant]."
Grounds of Appeal 17. The appellant appealed to this Court on a number of grounds, including the following:-
"(i) The learned President erred in holding in effect that the need to show a ‘clear disregard' of the Constitution meant something more than that the breach was established on the balance of probabilities; and erred in particular in holding that the breach must be ‘blatant and egregious' and ‘not a matter which ... mires the Court in assessing the merits of the substantive issues or in excessive scrutiny of each and every scrap of information disseminated by or on behalf of Government'.
(ii) The learned President erred in the use of images of children, child's writing and so forth were permissible on the basis of describing the referendum as a ‘referendum on children's rights'. Only Article 42A.1 refers expressly to children's rights and sections 2 and 3 directly involve the rights of a number of other parties. The learned President erred in failing, to hold that by promoting a child's point of view on the amendment the Government material favoured looking at the amendment from one of the many potential standpoints available, as opposed for example to a parent's standpoint.
(iii) The learned President erred in holding that the smiling face in the O of ‘Vote' would be taken as an encouragement to vote rather than as a subliminal message as to how voters should cast their vote.
(iv) The learned President erred in holding that images of children are neutral, simply pertaining to the subject matter of the referendum.
(v) The learned President erred in holding that the removal of the facebook ‘like' option and the paragraph providing that the amendment underpins family support services was not significant and that the removed material was not advocacy.
(vi) The learned President erred in holding that the inaccurate inclusion of the word ‘continue' on page 9 of the booklet is something on which ‘nothing turns'.
(vii) The learned President erred in holding that the material did not advocate a particular outcome and was ‘neutral, balanced and has the primary aim of informing the public'.
(viii) The learned President erred in holding that the advertising was inoffensive and did not sway voters.
(ix) The learned President erred in failing to hold that the respondentshad not held the scales equally between the two sides in the referendum.
(x) The learned President erred insofar as he failed to make any specific finding on a number of the complaints of the appellant including the claim of structural bias and the claim in relation to the Department's main website dcya.gov.ie.
[…]
(xii) The learned President misdirected himself in law and upon the evidence and/or the weight and/or balance of the evidence in deciding that the appellant's application herein should be refused.
[…]"
Decision
Issues 18. There are two primary issues in this appeal. First, a consideration of the test to be applied to trigger court intervention. Secondly, an application of the test and the McKenna principles to the material published by the Minister.
The Constitution
19. The Irish people affirmed its sovereign right to choose its own form of Government and adopted the Constitution of Ireland in 1937. The Constitution belongs to the people and may be amended only by the people. In taking part in the process to determine whether to amend the Constitution or not, the people are taking a direct role in government. The decision whether to amend the Constitution, or not, is the decision of the people alone.
20. As O'Flaherty J. noted in McKenna , at p. 43, referendums are as old as democracy itself. The referendum process was introduced in the Constitution of 1922, and was described by Dr. Leo Kohn in " The Constitution of the Irish Free State ", at p., 238 as:-
"The introduction of the machinery of direct legislation into the structure of the Irish Constitution reflects the democratic radicalism of its framers. The records of the Constituent Assembly, indeed, throw little light on the motives underlying the innovation. The desirability, especially under Irish conditions, of an active association of the people with the function of law-making was the only argument adduced in its support; yet its place in the general design of the Constitution leaves little doubt as to its inspiration and purpose. Its model is to be found less in the older American, Australian and Swiss precedents than in the post-War Constitutions of the new Continental Republics. In the latter democratic zeal, political doctrinarism and distrust of the mechanism of parties and Parliaments had combined to produce a highly involved design of direct legislation interwoven with the fabric of representative institutions. On that elaborate pattern the Irish system was framed."
21. The Constitution of Ireland, 1937 provides that Ireland is a democratic state. Democracy was described by Pringle J. in de Burca v. Attorney General [1976] I.R. 38 at p. 47:- "A democracy, as I understand it, is a form of government in which the sovereign power resides in the people as a whole and is exercised by the people either directly or through their elected representatives".
22. Pursuant to Article 6.1 of the Constitution, all powers of government, legislative, executive and judicial derive from the people. It remains the right of the people in final appeal to decide all questions of national policy, according to the requirements of the common good.
23. This case arises on the holding of a referendum. Article 46 of the Constitution provides that any provision of the Constitution may be amended in the manner provided in that Article. Article 46.2 states that every proposal for an amendment to the Constitution shall be initiated in Dáil Éireann as a Bill, and, having been passed or deemed to have been passed by both Houses of the Oireachtas, be submitted by referendum to the decision of the people in accordance with the law. Such a proposal, which is submitted by referendum to the decision of the people, shall be held to have been approved by the people if, having been so submitted, a majority of the votes cast at such referendum are cast in favour of its enactment.
24. Thus, the organs of government are involved in initiating a referendum. In practice, the Executive commences the process by a cabinet decision to hold a referendum. The legislature then plays a role in the process by initiating the proposal as a Bill in Dáil Éireann. The Bill is then passed, or deemed to have been passed, by both Houses of the Oireachtas. Once passed by the Oireachtas, the matter is submitted by referendum to the decision of the people. Thus, both the legislative and executive organs of State have a role in initiating the process of a referendum.
25. However, once the Amendment Bill leaves the Houses of the Oireachtas, the situation changes: the two organs of government, the executive and the legislature, have completed their role in this part of the referendum process. The situation changes from a process with the exercise of power by elected representatives in our democracy to an exercise of power directly by the people.
26. The referendum process, once the Bill has left the Houses of the Oireachtas, is not an executive or legislative function of government. It moves from a process where democracy is exercised by elected representatives to a process of direct democracy exercised by the people.
27. The judicial branch of government has a role also in the process. All powers of government are subject to the provisions of the Constitution. As Walsh J. stated in Crotty v. An Taoiseach [1987] IR 713 at p. 778:-
"It is not within the competence of the Government, or indeed the Oireachtas to free themselves from the constraints of the Constitution … They are both creatures of the Constitution and are not empowered to act free from the restraints of the Constitution. To the judicial organ of Government alone is given the power conclusively to decide if there has been a breach of constitutional restraints."
28. In this case the appellant has brought a case before the Court submitting that there has been a breach of constitutional restraints by the respondents. Thus, it is necessary to consider the issues raised by the appellant.
Test for Intervention
29. The first issue to be determined is the identification of the correct test to be applied by the Court in determining whether or not it should intervene. In McKenna at p. 32, Hamilton C.J. stated:-
"(i) The courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions provided that it acts within the restraints imposed by the Constitution on the exercise of such powers.
(ii) If, however, the Government acts otherwise than in accordance with the provisions of the Constitution and in clear disregard thereof, the courts are not only entitled but obliged to intervene.
(iii) The courts are only entitled to intervene if the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution."
[emphasis added]
30. While the High Court quoted the above statement by Hamilton C.J. in McKenna , it then diverted from that test. As quoted previously, the High Court stated that the breach must be "something blatant and egregious". It was also stated that it must be something seen or found in the presentation. Whilst the latter is a correct analysis of the relevant principles, the test "something blatant and egregious" is not. Nor is there an analogy to be found in the test established in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223, as formulated in this jurisdiction in The State (Keegan) v. Stardust Victims Compensation Tribunal [ 1986] 1 I.R. 642 and in O'Keefe v. An Bord Pleanála [1993] 1 I.R. 39. Nor is the intent of the respondents relevant. The test to be applied is as established in McKenna and is whether "… the circumstances are such as to amount to a clear disregard by the Government" of the principles stated. This is an objective test. Consequently, the High Court erred in the test it applied. I would allow the appellant's appeal on this ground.
31. I will proceed to apply the established test, i.e . to determine whether the respondents acted in clear disregard of the McKenna principles. Therefore, the facts require to be analysed to determine whether it has been established that there was a clear disregard by the respondents of the McKenna principles.
Burden of Proof
32. The burden of proof lies on the appellant to establish, on the balance of probabilities, that, on the facts of the case, there has been a clear disregard by the respondents of the McKenna principles.
33. On the first day of legal argument on this appeal, Richard Humphries S.C., counsel for the appellant, submitted that a publicly funded government publication about the referendum must be "fair, equal and impartial". David Hardiman S.C., for the respondents agreed that these words were appropriate. Later, it was also agreed that any such publication should be neutral, when viewed broadly. This is an appropriate statement of the McKenna principles and so these matters fall to be determined in accordance with the constitutional jurisprudence.
The McKenna Principles
34. The constitutional jurisprudence was stated in McKenna . In that case a majority of the Court (Hamilton C.J., O'Flaherty, Blayney and Denham J.J., Egan J. dissenting) held that the Government, in expending public monies in promotion of a particular result in a referendum process, was acting in breach of the Constitution. As Hamilton C.J. stated, at p. 42:-
"The use by the Government of public funds to fund a campaign designed to influence the voters in favour of a ‘Yes' vote is an interference with the democratic process and the constitutional process for the amendment of the Constitution and infringes the concept of equality which is fundamental to the democratic nature of the State".
35. An election process, whether it be a local election, a general election or a referendum, is not an exercise of executive power by the Government.
36. In McKenna , the majority of the Court, (Hamilton C.J., O'Flaherty J, Blayney J, Denham J.J.) wrote judgments setting out their reasons for the jurisprudence. A majority found a breach of the constitutional right to equality. There were references also to the democratic process and fair procedures.
37. From these judgments I have extracted the following principles:-
(i) The Government is entitled to campaign for a yes vote by any methods it chooses, other than by the expenditure of public funds. Such methods include writing, speaking, broadcasting, canvassing, leafleting and advertising. Some of these methods, such as writing, speaking, broadcasting on ordinarily scheduled current affairs programmes, and canvassing, are cost free. Others, such as the creation of a dedicated website, leafleting and advertising, involve expenditure. Partisan advertising, that is advertising in one way or another urging a particular result, may be carried out by any person or by an organised group or political party, including parties composing the Government of the day, but it must be done at their own expense. Any ‘information' disseminated by the Government at public expense must be equal, fair, impartial and neutral.
(ii) The Government is entitled to campaign for the change, and the members of the Government are entitled in their personal, party or Ministerial capacity to advocate the proposed change. Government Ministers may use their State transport in relation to the referendum and may avail of the radio, television and other media to put forward their point of view. However, the Government and its members must not spend public monies in favour of one side.
The Right to Equality
(iii) The right to equality applies in the referendum process. Spending public monies in favour of one side of a referendum breaches the equality rights of the citizens.
(iv) Spending public monies in favour of one side of a referendum puts the voting rights of one class of citizen (those in favour of change) above those of another class of citizen (those against).
(v) The public purse must not be expended to espouse a point of view which may be anathema to certain citizens, who, of necessity, have contributed to it.
The Right to a Democratic Process (vi) There is a right to a democratic process in the holding of a referendum. It is an interference in the democratic process for the Government to spend public monies in a referendum campaign to benefit one side rather than another. The democratic process is protected by the McKenna principles.
Right to Fair Procedures (vii) In submitting the proposed amendment to the decision of the people, the Government should observe fair procedures. The scales must be held equally between those who support and those who oppose an amendment to the Constitution.
Right to Freedom of Expression (viii) The freedom to express opinions incorporates the corollary right that in the democratic process of free elections, public funds should not be used to fund one side of an electoral process, whether it be a referendum or a general election, to the detriment of the other side.
(ix) The Government has a right to give information, to clarify situations, to give explanations and to deal with unforeseen matters and emergencies, but in doing so, public funds should not be used to favour one side in a referendum.
38. The McKenna principles require that a publicly funded publication about a referendum must be fair, equal, impartial and neutral.
Principles Considered Elsewhere
39. The use of public funds in a referendum process has been the subject of careful consideration at international level, in other nations, and in statutory law. While the Irish jurisprudence may be found in McKenna , it is a useful exercise to consider the principles and law which have been established elsewhere.
Code of Good Practice on Referendums
40. A " Code of Good Practice on Referendums ", referred to as "the Code", has been adopted by the Venice Commission.
41. The European Commission for Democracy through Law, better known as "the Venice Commission", is the Council of Europe's advisory body on constitutional matters. The Commission was established in 1990 and it played a leading role in the adoption of constitutions which conform to the standards of Europe's constitutional heritage. Initially conceived as a tool for emergency constitutional engineering, the Commission has become an internationally recognised independent legal think-tank. Today it contributes to the dissemination of the European constitutional heritage, based on the continent's fundamental legal values, while continuing to provide "constitutional first-aid" to individual states. Ireland was one of 18 founding member states of the organisation when it was set up on 10th May 1990. Ireland was also one of the ten founding members of the Council of Europe, which was established on 5th May, 1949.
42. The reasons for, and the achievement of, the Code are set out in the Introduction to the European Commission for Democracy through Law (Venice Commission), Code of Good Practice on Referendums, adopted by the Council for Democratic Elections on 16th December, 2006, and the Venice Commission on the 16th and 17th March, 2007.
43. The Code includes the following:-
" 2.2. Equality of opportunity
a. Equality of opportunity must be guaranteed for the supporters and opponents of the proposal being voted on. This entails a neutral attitude by administrative authorities, in particular with regard to:
i. the referendum campaign;
ii. coverage by the media, in particular by the publicly owned media;
iii. public funding of campaign and its actors;
iv. billposting and advertising;
v. the right to demonstrate on public thoroughfares."
44. On the issue of funding, the Code states as follows:-
" 3.4 Funding
a. The general rules on the funding of political parties and electoral campaigns must be applied to both public and private funding.
b. The use of public funds by the authorities for campaigning purposes must be prohibited ."
[Emphasis added]
45. On the matter of funding, the explanatory memorandum, which is appended to the Code, states:-
"25. There must be no use of public funds by the authorities for campaigning purposes, in order to guarantee equality of opportunity and the freedom of voters to form an opinion."
46. Thus, it is clear that the McKenna principles are in concordance with the Code.
Other States
47. It is useful to note the approach taken in other States. There is no single way to achieve a fair and equal referendum process. States in Europe approach referendums and the requirement for equality and fairness by different routes. An example may be seen in the United Kingdom, in the Political Parties, Elections and Referendums Act, 2000, referred to as "the Act of 2000". Under this Act there is provision for the establishment of an Electoral Commission, which, inter alia , makes provision for election and referendum campaigns and the conduct of referendums. On the issue of funding, provision is made for the payment of not more than £600,000 to designated organisations, on each side in a referendum process.
48. Part VII of the Act of 2000 makes provision for referendums. Section 108 provides that the Commission may designate permitted participants as organisations to which assistance is available in accordance with s. 110. Section 108(2) states that where there are only two possible outcomes in the case of a referendum the Commission may designate one permitted participant as representing those campaigning for the outcome in question, but otherwise shall not make any designation in respect of the referendum. If there are more than two possible outcomes, provision is made for designated organisations. Where the Commission has made designations then assistance is available according to s. 110. Section s. 110(2) provides that the Commission shall make to each designated organisation a grant of the same amount, which shall not exceed £600,000.
49. The Electoral Commission in the United Kingdom is an independent body established by Parliament to work to support a healthy democracy, where elections and referendums are based on principles of trust, participation and no undue influence. The Electoral Commission is currently considering and making proposals for the Scottish Referendum in 2014. In relation to their timetable, for example, the Commission states that it should be able to publish its views on the intelligibility of a proposed referendum question around ten weeks after receiving notice of the wording of the question. In this time it carries out public opinion research.
50. Looking further afield to Australia, s.11(4) of the Referendum (Machinery Provisions) Act, 1984 provides that the Commonwealth shall not expend money in respect of the presentation of the argument in favour of, or the argument against, a proposed law except in relation to the preparation, printing and posting of pamphlets by the Electoral Commissioner. The pamphlets set out the arguments for and the arguments against the proposal to amend the Constitution. The arguments are submitted by a majority of the members of the Parliament in favour of the proposal and a majority of the members of the Parliament against the proposal. The Electoral Commission also prepares a statement outlining the textual alterations and additions proposed to be made to the Constitution of Australia. Thus, the federal government cannot spend public monies in favour or against a proposal to amend the Constitution, save for the printing and distribution of information which presents the official yes or no sides of the argument, and the functioning of the Electoral Commission.
51. In the State of Victoria, Australia, s. 177C of the Electoral Act, 2002 is concerned with the "distribution of arguments for and against Bill to electors" regarding the amendment of the State's Constitution Act, 1975. It mirrors the provisions of s. 11(4) of the Referendum (Machinery Provisions) Act, 1984. The public monies of the State cannot be spent in favour or against a proposal to amend the Constitution Act, 1975.
The Facts
52. Having identified the relevant law in Ireland in the McKenna principles, it is now necessary to identify the relevant facts of the case.
53. At issue in this case is the use of public funds in the publication of a booklet, website, and advertisements, by the Minister in the time between the publication of the Bill as passed by the Oireachtas and the 10th November, 2012, when the people were asked to vote on a proposed change to the Constitution.
54. The booklet, website and advertisements, on their face failed the test of being fair, equal and impartial, failed to be neutral, and failed to hold the scales equally between both sides, as may be seen by looking at the materials.
55. There was language in the materials which, on its face, favoured one side over the other. Thus, for example, on the front page of the booklet and on the home page of the website there were slogans. One of the slogans was "Protecting children". As counsel for the appellant argued, for some who opposed the referendum, the referendum was not about protecting children, but would involve more State intervention with children, which they opposed.
56. Yet the phrase "Protecting Children" was on both the booklet and the website as follows:
Booklet
The phrase "Protecting children" could be found in the Children's Referendum information booklet published by the Minister on the following pages:-
(i) Cover page of the booklet.
(ii) Page 1 of the booklet.
(iii) Page 6 of the booklet.
(iv) Page 14 of the booklet.
Website
The phrase "Protecting children" could be found on the Children's Referendum website published by the Minister on the following web-pages:-
(i) In the centre of the home page of the website under the heading "What will change if the Referendum is passed?"
(ii) As the first link on the left-hand side of the home page of the website. This link continued to be visible when other web-pages were accessed by someone browsing the website.
(iii) When the second link "Protecting children" was accessed, this phrase appeared at the beginning of the web-page.
(iv) In the text written under the "Supporting Families" web-page where it stated that "[p]rotecting children and supporting families are simply two sides of the one coin".
(v) In the text written under the "What will change if the referendum is passed?" web-page.
57. Variations of the phrase "Protecting children" could be found as follows:-
(i) A variation of the phrase appeared on the web-page "Protecting Children" by use of the phrase "Protect the child's safety and welfare in the home".
(ii) A variation of the phrase appeared on the web-page "Why do we need this referendum" by use of the phrase "protection of all our children".
(iii) Another variation in the form of "[t]o protect children from abuse and neglect" appeared in the text written under the "What will change if the referendum is passed?" web-page.
(iv) There was also a similar variation under the "FAQs" web-page where the question was posed "Why is this proposed Referendum needed?". In the text written under this, reference was made to "ensuring the protection of all of our children".
(v) In the text written under "Don't children already have rights under the Constitution?" reference was made to "the protection and equality of children".
(vi) In the section which referred to "Minister Fitzgerald launches information website for Children's Referendum" a comment on the wording of the proposed amendment was attributed to the Minister whereby she stated that "[i]t's about protecting children from abuse and neglect".
58. Another slogan used by the Minister in the booklet and website was "Supporting Families". This was not impartial, fair, nor did it pass the equality test.
59. As counsel for the appellant argued, for some who opposed the referendum, the amendment did not support families, indeed, to the contrary, it was argued that the referendum was detrimental to families, as it may give rise to more State intervention in families.
60. Yet the phrase "Supporting Families" was on both the booklet and website, as follows:-
Booklet
The phrase "Supporting families" could be found in the Children's Referendum information booklet on the following pages:
(i) Cover page of the booklet.
(ii) Page 1 of the booklet.
(iii) Page 6 of the booklet.
(iv) Page 14 of the booklet.
Website
The phrase "Supporting families" could be found on the Children's Referendum website on the following web-pages:
(i) In the centre of the home page of the website under the heading "What will change if the Referendum is passed?"
(ii) As the first link on the left-hand side of the home page of the website. This link continued to be visible when other web-pages were accessed by someone browsing the website.
(iii) When second the link "Supporting families" was accessed, this phrase appeared at the beginning of the web-page. In the text written under this it stated that "[p]rotecting children and supporting families are simply two sides of the one coin".
(iv) In the text written under the "What will change if the referendum is passed?" web-page.
61. Variations of the phrase "Supporting families" could also be found in the section which refers to "Minister Fitzgerald launches information website for Children's Referendum", whereby a comment on the wording of the proposed amendment is attributed to the Minister and she stated that "[i] t's about supporting families".
Need
62. Another aspect of the material is also relevant. On both the booklet and website there is a question posed: "Why do we need a Referendum"? This infers a need. But, as counsel for the appellant argued, for those who opposed the amendment there was no need. The posing of this question was in effect campaigning and would not have looked out of place in information provided by a partial advocate seeking a Yes vote.
63. Yet the query "Why do we need a Referendum?" was on both the booklet and the website, as follows:-
The phrase "Why do we need a Referendum" could be found on page 2 of the Children's Referendum information booklet. The phrase "Why do we need a Referendum" could be found on the Children's Referendum website on the following pages:-
(i) On the home page of the website.
(ii) This was alongside a link to the word "More" which brought the reader to a web-page with the heading "Why do we need this Referendum".
(iii) In the "FAQs" web-page the question was posed "Why is this proposed Referendum needed?".
Children Silhouette and the word "Vote" 64. The title "Children's Referendum" represented on both the website and the information booklet is juxtaposed with a silhouette of what appears to be three children linking hands. The "smiley face" which is represented in the letter "O" in the word "Vote" on the homepage of the website has a childish quality to it as if it were drawn by a child. The website had photographs of children, including one with the Minister.
Certainly the referendum was concerned, inter alia , with children and the respondents have submitted that these visual representations were intended simply to depict the issue with which the referendum was concerned. The appellants argued that these visual representations were designed to induce an emotional response in the reader and actually advocated for a yes vote, in a subliminal fashion rather than being neutral and objective visual representations. The images were positive of children and involved a sense of their youth and vulnerability, which, combined with, for example, the phrase, "protecting children", was partial.
In this regard, it is noteworthy that the Referendum Commission restrained itself from depicting images of children. Its written information guide and television advertisements simply depicted a cross section of men and women of varying ages. This conveyed a clear message of Irish citizens considering the proposed amendment and how important it was to vote on polling day.
"Like" link
65. Another feature of the website was the "like" link associated with the social media website "Facebook". This appeared on the children's referendum website and it was removed because there was no option but to click the "like" link. This illustrated the campaigning tone of the website in favour of a yes vote and indeed it was removed by the respondents when objections were made by the appellant.
The admitted error
66. In addition, there was an admitted error. In both the High Court and in this Court, the appellant highlighted an error on page 9 of the Children's Referendum information booklet, produced by the Minister, which was also available on the website "www.childrensreferendum.ie".
67. In the third paragraph of page 9 of the booklet, a statement is made as to the effect the proposed amendment to the Constitution will have, and how "[k]ey requirements will continue to be as follows:" [Emphasis added]. This statement was then followed by five bullet points which provide that:-
• the State can only make use of the power " in exceptional cases ";
• a failure of parental duty towards the child must exist - " where the parents, regardless of their marital status, fail in their duty towards their children";
• any failure must involve harm or risk to the child's safety or welfare - " to such an extent that the safety or welfare of any of their children is likely to be prejudicially affected ":
• the actions of the State must be in balance with the harm or risk to the child that needs to be addressed - " by proportionate means "; and
• the actions the State can take must be set out in law - " as provided by law ".
68. The appellants submitted that it was incorrect to state that these matters were a continuation of the requirements under the Constitution, rather that the second, third, fourth and fifth bullet points were new elements provided for in the amendment. It was further submitted that this was a crucial inaccuracy as a citizen who read it would be more likely to be lulled into complacency and acceptance of the proposed amendment, as compared with a citizen who was correctly informed that significant change to the language of constitutional provisions was being proposed in the amendment.
69. Counsel for the appellant submitted that this error was drawn to the attention of the respondents in the second affidavit of the appellant dated 23rd October 2012. On 1st November 2012, which was Day 2 of the High Court hearing, the respondents acknowledged that page 9 of the booklet was in error because of the use of the word "continue". By this time, 66 per cent of all government information booklets were distributed to homes throughout the State. The learned President of the High Court gave his ex tempore decision on 1st November 2012 and in relation to page 9 of the booklet was satisfied that "…there was no deliberate attempt to distort the facts and that in reality, nothing turns on this".
70. Notwithstanding the acceptance of the error by the respondents, by the time the appeal was heard in this Court on the 6th November, 2012, no attempt had been made by the respondents to remedy the error contained in the booklet, either in its hardcopy form or on the website. The respondents continued to distribute the booklet to homes in the State. It was not until the morning of Day 2 of the hearing of the appeal, on the 7th November, 2012, that counsel for the respondents informed the Court that the error in using the word "continue" was removed from the website. This occurred sometime between 10.30am and 11.30am.
71. In supplemental written legal submissions, which were in reply to the respondents' oral submissions before this Court, counsel for the appellant noted that this correction was not brought to the attention of the public by way of an information notice stating that the correction had been made.
72. This was a significant error made by the respondents.
Television, radio and newspaper advertisements
73. The Minister funded the production of television, radio and newspaper advertisements.
The television advertisement in both Irish and English contained two images of a child and a group of children; two images of a male and female teenager; an image of a child with an older woman, and an image of a child with an older couple. A voiceover states that "The children's referendum will give the people of Ireland the opportunity to decide about the place of children in our Constitution. It's all about them. But it's up to you". This latter sentence appeared written on screen during the advertisement. A voiceover then gave details regarding polling day and stated that "Your vote counts". Towards the end of the advertisement, the word "Vote" is depicted with the letter "O" characterised as a "smiley face". Underneath this there was text stating that viewers could visit the children's referendum website and see the information booklet delivered to their door.
The radio advertisements included voiceovers of three children, two female and one male stating their name and ages as being fourteen, nine, and three and one quarter. This was alongside the voice of an adult stating that "It's all about them. But it's up to you" who proceeded to give details about polling day stating that "Your vote counts". Similarly, listeners were informed that they could visit the children's referendum website or see the information booklet delivered to their home.
74. The appellants argued that the advertisements effectively advocated for a yes vote due to use of children's images, the use of "smiley faces", the use of children's voices; and also that no image represented a family to include a parent or parents, apart from what appears to be two images of older people, perhaps depicting grandparents. The respondents replied that the advertisements were simply an encouragement to vote on an important issue.
The advertisements were clearly produced with the benefit of expert advice in the area of media communications. The breakdown of the €1.1 million spent by the Minister on various consultants is plain to see in the High Court judgment. In an event as important and solemn as a referendum, there is a need for restraint in the promotion of views paid for by public funds. This restraint was exemplified by the Referendum Commission's advertisements. In the Minister's advertisements when taken as a whole, they promoted a Yes vote, and were not impartial.
75. The newspaper advertisements were headed "It's all about them…but it's up to you!" alongside the silhouette of three children holding hands. It gave the date of polling day, included the word "Vote" wherein the letter "O" was represented by a "smiley face", together with the statement "Your vote counts". A statement was made to the effect that the referendum gives the people of Ireland the opportunity to decide about the place of children in our Constitution. Readers were directed to find more information on the children's referendum website and to "Read the Department of Children and Youth Affairs booklet, which is being delivered to your home". An image of the front page of the booklet took approximately one quarter of the space of the advertisement. The front page of the booklet carried the slogans "Protecting children" and "Supporting families". I have already addressed the issue of those slogans.
76. While not everything in the Minister's advertisements or indeed the information booklet and website was objectionable under the McKenna principles, it is not necessary to conduct a punctilious examination of the minutiae of each one of them. It is not the task of this Court to nit pick through every last detail of the material. We live in an age of constant marketing, public relations exercises and intense forms of modern communications, designed to induce a response in the recipient of material. In many ways it is a completely different time to that of the decision in McKenna seventeen years ago. However, one aspect remains constant. An event as important and solemn as a referendum to amend our Constitution requires that publicly funded information is fair, equal, impartial and neutral. This requirement remains as firm as ever. The cumulative effect of the matters identified in the above materials amounts to a clear disregard of the McKenna principles.
Application of the McKenna Principles
77. It is clear from the facts set out previously that the material published by the Minister, funded from public monies, breached the McKenna principles. The respondents, in expending public monies in promotion of a particular result in the referendum process were acting in breach of the Constitution. Applying the McKenna principles, as stated earlier in the judgment, from 1995, the respondents breached the principles as follows:-
(i) The Government is entitled to provide information and to campaign for a "Yes" vote, by methods other than the use of public funds. However, the booklet, website and advertisements the subject of this appeal were funded by public funds.
(ii) The Government must stop short of spending public monies in favour of one side. In this case the booklet, website and advertisements favoured one side and were funded from public monies.
(iii) Spending public monies in favour of one side of a referendum breaches the equality rights of the citizens. In this case the material published by the respondents favoured one side in the referendum.
(iv) Thus, the voting rights of one class of citizen (those in favour of change) were placed above those of another class (those against).
(v) The public purse was used to espouse a point of view anathema to some citizens, who, of necessity, had contributed to it.
(vi) There was an interference in the democratic process by the respondents spending public monies in a referendum campaign to benefit one side.
(vii) There was a breach of fair procedures, as the scales must be held equally between those who support and those who oppose an amendment to the Constitution.
(viii) The respondents used public funds to fund one side of the electoral process contrary to a fair democratic process.
(ix) The information, clarification and explanation given in the booklet, website and advertisements favoured one side in the referendum.
These principles were synthesised in legal argument before the Court, into a principle that a publicly funded publication about the referendum must be fair, equal, impartial and neutral. On the facts of the case, I am satisfied that the booklet, website and advertisements published by the Minister with the use of public funds were not fair, equal, impartial or neutral. Thus, I would allow the appeal on this second issue.
Bona fides of the Respondents
78. In written submissions to this Court, counsel for the respondents stated that the respondents believed that they complied with the decision of this Court in McKenna . It was submitted that the respondents were conscious of their obligations when drafting the disputed information, which is now the subject of this appeal.
79. In written submissions to this Court, counsel for the appellant submitted that for the purposes of the appeal there was no challenge to the proposition that the respondents endeavoured to comply with the decision of this Court in McKenna, as they understood it. Thus, the appellant did not controvert the bona fides of the respondents.
80. This appeal arises because of €1.1 million of public monies given to the Minister for the provision of information to the public in the referendum campaign.
81. The Minister was spearheading the Government campaign in the referendum process. In the circumstances, it is manifestly clear that the Minister believed that a "Yes" vote in the Referendum would be a good thing.
82. It is questionable whether it is wise to ask a Minister, who is promoting a referendum on behalf of the Government, to publish neutral information on the Referendum. It may be that it is itself inherently unfair to ask a Minister, and indeed her Department, which are promoting a referendum, and who clearly believe in its merit, and wish for a "Yes" vote, to draft and publish neutral information. This role may be best performed by a body not invested in the referendum.
83. In all the circumstances of this case, as have appeared before the Court, I am satisfied that the respondents acted in a bona fide manner.
Public funding of information
84. In the referendum in issue in this case, the Referendum Commission was given €1.9 million for the provision of information to the public. The Referendum Commission provided neutral information in a guide, on a website, and in advertisements during the Referendum campaign. No complaint was made by the appellant as to any of the publications of the Referendum Commission.
85. The role of the Referendum Commission has been addressed in reports from recent Commissions. The Lisbon Treaty 2009 Report recommended that the Minister should consider establishing an independent body, such as the proposed Electoral Commission, which would consolidate various electoral functions, including those of the Referendum Commission. As was noted also in a previous Report, such a body would have the additional advantage of being a permanent and ongoing body which would have ample time to prepare and promote public awareness of important constitutional amendments.
Conclusion
86. Thus, in conclusion, I find that the appellant's appeal should be allowed on the two issues before the Court. First, the High Court erred in the test it applied to trigger court intervention, and I would allow the appeal on that ground. Secondly, on applying the correct test to the material published by the Minister, I conclude that there was a clear disregard by the respondents of the McKenna principles. The material published by the Minister was not fair, equal, impartial or neutral. Consequently, I would allow the appeal on the second issue also.
