The High Court has refused Mark McCrystal’s challenge to the Government’s information campaign for the 2012 children’s rights referendum, finding that the material did not plainly favour a particular result.
President of the High Court Nicholas Kearns delivered the ex tempore decision on 1 November 2012. By consent, the hearing of McCrystal’s motion on 30 October had been treated as the trial of the action. The court refused the declarations and injunctions he sought.
The referendum on the proposed Thirty-first Amendment of the Constitution (Children) Bill 2012 was due to be held on 10 November. McCrystal argued that Government-funded material—including a website, an information booklet and radio, television and print advertisements—promoted a Yes vote, contrary to the constitutional principles set out by the Supreme Court in McKenna v An Taoiseach (No. 2).
The Government said its campaign aimed to inform the public and encourage participation, not to influence how people voted. It acknowledged an error in the booklet’s use of the word “continue”. The court found no deliberate attempt to distort the facts and said nothing turned on the error.
Kearns said courts should intervene in the referendum process only where there is a clear disregard of constitutional duties. Having considered the campaign as a whole, he found its material neutral and balanced, with the primary aim of informing the public. He concluded that it did not plainly favour a particular outcome or amount to a clear constitutional abuse or manifest solicitation to vote in a particular way.
The court also rejected the challenge to the campaign’s use of children’s images and the word “Vote”, viewing them as relating to the subject of the referendum or encouraging people to vote, rather than supporting a Yes vote. It found the advertisements encouraged participation, not a particular choice. The court noted that about 66% of the Government booklets had already been distributed and that McCrystal had delayed bringing his application; however, its stated basis for refusing the relief was its conclusion on the campaign’s content.
Kearns observed that similar challenges might arise where referendum information is delivered through separate Government and Referendum Commission campaigns. He suggested that an expanded commission, established earlier and given an adequate budget, could provide comprehensive information and reduce such disputes.