The Supreme Court allowed Mark McCrystal’s appeal over the Government’s publicly funded information campaign for the 2012 children’s referendum, finding that the campaign clearly disregarded constitutional principles requiring neutrality in referendum information.
The ruling, delivered by Chief Justice Denham on 11 December 2012, gave reasons for a decision announced on 8 November. The Court found that the Minister for Children and Youth Affairs’ booklet, website and advertisements were not fair, equal, impartial or neutral, and that their cumulative effect promoted a Yes vote.
The case concerned the Thirty-First Amendment of the Constitution (Children) Bill, 2012. The Minister had used part of a €3 million allocation for the referendum to fund the campaign; €1.9 million had been allocated to the Referendum Commission for its statutory work. McCrystal did not challenge the Commission’s neutral information campaign.
The Supreme Court said the High Court had applied the wrong test when it required a breach to be “blatant and egregious”. The applicable test, from McKenna v. An Taoiseach (No. 2), was whether there had been a clear disregard of the relevant principles. McCrystal bore the burden of establishing that disregard on the balance of probabilities.
In applying that test, Chief Justice Denham pointed to slogans including “Protecting children” and “Supporting families”, and the question “Why do we need a Referendum?” The judgment said those formulations favoured one side because opponents could dispute that the amendment would protect children or support families, or that a referendum was needed. It also considered the campaign’s child-focused imagery, a Facebook “like” link that was later removed, and the booklet’s use of “continue” to describe requirements that the judgment said included new elements. The Court described the wording error as significant.
The television, radio and newspaper advertisements were also considered. The judgment found that, taken as a whole, they promoted a Yes vote, referring to their use of children’s images and voices, the phrase “It’s all about them…but it’s up to you!”, and the booklet’s slogans.
The Court accepted that the respondents acted bona fide. It allowed the appeal on both the legal test and its application to the campaign. In its earlier ruling, the Court granted a declaration that the respondents had acted wrongfully in spending or arranging to spend public money to promote a particular referendum result. It did not grant an injunction, stating that it assumed the respondents would stop distributing the material.