Explaining the Supreme Court Ruling on the Government’s Referendum Campaign

Dr Laura Cahillane

Today the Supreme Court ruled that the Government acted “wrongfully” in spending public money on a website, booklet and advertisements on the children’s referendum “in a manner which was not fair, equal or impartial”. Last week, the president of the High Court, Mr Justice Nicholas Kearns, had dismissed the challenge brought by Mr Mark McCrystal, who alleged that the spending of public money on the Government’s information campaign breached the 1995 Supreme Court judgment in the McKenna case. Mr McCrystal appealed to the Supreme Court and the case was given priority due to the fact that the Referendum is due to be held on Saturday and voting on the Islands actually began this morning. The five-judge panel in the Supreme Court held that it was “clear that there are extensive passages in the booklet and on the website which do not conform to the McKenna principles” but it was satisfied that not all of the website or the booklet was in breach of the McKenna principles: “because of the overall structure of the booklet and website, it would not be appropriate for the court to redact either”. Thus the Court did not grant an injunction as it assumed that the State would cease publishing and distributing the information.

Public Money cannot be used to fund one side of a Referendum Campaign

This decision means that the Government acted unconstitutionally in spending public money to promote one side of a referendum campaign. This principle was originally enunciated in the Supreme Court judgment of McKenna v An Taoiseach in 1995. This case involved the Divorce Referendum and the decision of the Government of the time, to spend £500,000 to promote a yes vote, with nothing being spent on the no side. Patricia McKenna, who was an open supporter of the amendment, decided to challenge the legality of this action, as she felt that it was unfair to promote one side only and she wished to lay down a principle for the future. The Supreme Court ultimately agreed with McKenna and read Article 47.1 (the referendum provision) in light of Article 40.1 (the equality provision) to hold that the Constitution required equal treatment of each side in a referendum. Thus it was held that “such expenditure also had the effect of putting the voting rights of those citizens in favour of the amendment above the voting rights of those citizens opposed to it” and that “as well as representing a breach of the constitutional right to equality [it] also represented an infringement of the constitutional right to freedom of expression and the constitutional right to a democratic process in referenda.”

Declaring the actions of the Government as unconstitutional by reference to vague constitutional principles, rather than any specific constitutional provision, has been criticised but the judgment is still considered “good law”.

Funding a Referendum Campaign

The result of the decision created a dilemma of what Governments should do in the run up to a referendum. One option was to fund neither side. This was unwelcome because it is believed that advertising is necessary to get a reasonable turnout. Indeed, there is also an argument that there is a constitutional duty on the Government to ensure that citizens are adequately informed to vote at a referendum and that this involves expenditure. Another option would have been to distribute funds to groups on either side. But there was a fear that this might indirectly lead to funds being given to subversive groups. So the solution reached was the establishment of the Referendum Commission, by the Referendum Act of 1998. The idea is that this is an impartial body which spends public funds to inform citizens about referendums in a neutral manner, without bias on either side.
While there are problems, particularly relating to the tight time space within which the Commission is expected to carry out its work (See what Mr Justice Bryan McMahon has said on this), the idea of an impartial Commission which distributes information to the public has generally been welcomed.

The establishment of the Referendum Commission would thus seem to have solved the problem (in general) of how to inform voters without contravening the decision in McKenna. However, for both this and the previous referendum on the fiscal compact, the Government decided to conduct its own “impartial” information campaign. It seems very strange that the Government decided to launch a separate publicly-funded campaign outside of the independent statutory framework that already exists for informing voters. While the Government may have dodged the bullet during the last campaign in its claims that the information was “informative” only, today the danger of such a separate campaign has become apparent.

What does this mean for the Referendum?

Questions will now arise over the legitimacy of the vote due to take place on Saturday. The McKenna example remains relevant here. The Supreme Court decision in McKenna came down on a Friday and the bulk of the money still remained to be spent in the Sunday Papers on adverts, which were then withdrawn. On the following Thursday people voted by a 9,000 majority, out of a ballot of 1.6 million, to remove the ban on divorce. This meant that the referendum was passed by a majority of less than 1%. Naturally, an action by the leader of the No Campaign followed. Mr Des Hanafin claimed that the referendum was constitutionally invalid because of the funds which had been unconstitutionally voted and spent, especially in view of the slim majority. However, seeing as “upsetting a referendum vote would be an awesome undertaking”, the Court rejected Hanafin’s challenge. It was held that there must be a presumption in favour of the integrity of the referendum. In order to prove his case, Hanafin would have had to demonstrate that 9,000 votes had been affected – that is shifted from No to Yes, or possibly from abstention to Yes – by virtue of the advertising which had been published. The Court said that it was not persuaded by expert evidence to the effect that this shift would, in all probability, have occurred. Instead, the Court wanted evidence of actual votes, while unhelpfully pointing out that the ballot was secret (Art 16.1.4). Mr. Hanafin was unable to provide this and so lost the case.

While it is quite possible that a challenge will be taken to the vote on Saturday, in the event of a slim majority in favour of the amendment, it is likely that the Hanafin decision will be followed. While there are some differences here in that the McKenna judgment was given a week before the vote and so voters were well-aware of the wrong-doing of the Government and still decided to vote yes, this judgment comes only two days before the vote and on the day of the Island vote. Nevertheless, it is still likely that in order to succeed, any challenger would have to prove that the unconstitutional spending of public money on the yes side definitively influenced the voters in favour of the amendment.

Whether or not the decision will have an impact on the vote on Saturday remains to be seen.

Dr Laura Cahillane

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