The Supreme Court allowed Mark McCrystal's challenge to the Government-funded information campaign for the 2012 Children's Referendum after finding that the material was not fair, equal, impartial and neutral.
The Government had allocated €1.1 million to its own information campaign alongside €1.9 million for the independent Referendum Commission. Its campaign included a website, household booklet and advertising ahead of the 10 November vote.
McCrystal commenced proceedings on 18 October 2012 after unsuccessfully calling for the Government campaign to stop. The High Court rejected his case on 1 November. With polling imminent, the Supreme Court heard the appeal on 6 and 7 November and immediately announced that it was allowing it. Mr Justice O'Donnell's judgment later set out his reasons.
The court was not asked to reconsider the 1995 McKenna decision, which established constitutional restrictions on spending public money to favour one side in a referendum.
Mr Justice O'Donnell examined material on the Government website, including statements that the referendum was about "protecting children", "supporting families", removing adoption inequalities and recognising children in their own right. He found that such language presented the proposal positively rather than simply conveying neutral factual information.
The judgment also identified an error in the Government booklet. It described elements of the proposed new constitutional wording as if they were existing requirements that would continue after the amendment. The State acknowledged the mistake during the litigation.
The Government argued for a high threshold before court intervention, suggesting that only blatant or explicit advocacy should offend the McKenna principles. The Supreme Court rejected that approach. Subtle advocacy could be as effective as an explicit instruction to vote a particular way.
The relevant question was whether the publicly funded campaign was fair, equal, impartial and neutral. Mr Justice O'Donnell concluded that it clearly was not, and the appeal was allowed.