The Supreme Court has upheld its declaration that the government acted wrongfully by spending or arranging to spend public money on a website, booklet and advertisements for the 2012 Children’s Referendum in a way that was not fair, equal or impartial.
The court had made the declaration on 8 November 2012, two days before voting. In reasons delivered on 11 December, Supreme Court judge Fennelly said the Department of Children and Youth Affairs’ campaign, considered as a whole, amounted to advocacy for a “Yes” vote. The court’s declaration was the relief sought by Mark McCrystal, who challenged the campaign. The judgment does not order a separate remedy in the reasons provided.
The case concerned €1.1 million allocated to the Department to provide referendum information and encourage people to vote. A further €1.9 million had been allocated to the Referendum Commission. The Supreme Court accepted that government may use public funds to provide necessary information, but said publicly funded material must remain strictly neutral between referendum outcomes.
Fennelly said the website’s opening question, “Why do we need this referendum?”, framed the material as a case for the proposal. It described the amendment as strengthening the Constitution, protecting children and putting children’s needs at the centre of decision-making. The booklet largely repeated the website’s presentation and contained what the judgment called a serious misstatement of the proposal’s effect. Fennelly referred readers to separate judgments by the Chief Justice and O’Donnell J on that error.
The State’s witnesses described efforts to follow legal advice and argued that the material provided context and information. Experts supporting McCrystal considered the campaign partial and persuasive. The Supreme Court said the government’s intention was not the test: the question was whether the material objectively showed a clear disregard of the State’s constitutional neutrality obligations. The burden was proof on the balance of probabilities. Fennelly said the High Court President had erred by requiring a breach to be “blatant and egregious,” a higher standard than clear disregard.
The ruling did not require courts to scrutinise every item of referendum information or assess political arguments. Fennelly said the decisive feature was the one-sided tendency of the campaign as a whole, alongside the booklet’s misstatement. He agreed with the declaration already made.