The Supreme Court has explained its earlier ruling that public money was spent on referendum material in a way that was “not fair, equal or impartial”. The material concerned the Thirty First Amendment of the Constitution (Children) Bill, 2012.
On 8 November 2012, the Court ruled in favour of Mark McCrystal, who had challenged the Government’s use of public funds for a website, booklet and advertisements promoted by the Minister for Children and Youth Affairs. The Court’s reasons, delivered by Murray J on 11 December 2012, set out why he agreed with that ruling. The judgment says McCrystal’s claim had been dismissed in the High Court before he succeeded on appeal.
The materials were paid for from a €1.1 million allocation made to the Minister by the Oireachtas for the referendum campaign. The Court applied principles from the earlier McKenna case: public funds could be used to provide referendum information, but not to promote one side to the detriment of the other. Murray J said the test was whether the Government had acted in “clear disregard” of its constitutional duties. He rejected the High Court’s “blatant and egregious” formulation.
The judgment said a court should assess the broad thrust of the material as a whole, rather than focus on isolated wording. It also said the Court had to make its own objective assessment of the texts; the expert opinions filed by both sides did not materially change that task.
Murray J identified the materials’ recurring themes as protecting children, supporting families, removing inequalities in adoption and recognising children in their own right. The website and booklet presented these objectives as reasons to support the proposed amendment, the judgment said, while leaving out arguments made by opponents, including that a referendum was unnecessary or could negatively affect constitutional protections for the family and the rights of parents and children.
The judgment concluded that, taken as a whole, the material advanced the case for a Yes vote without expressly calling for one, disadvantaging those making the case for No. Murray J agreed with the Court’s 8 November ruling. This judgment gives reasons for that ruling; the source does not set out a separate injunction or other further order in Murray J’s reasons.