S53 McCrystal v The Minister for Children and Youth Affairs, The Government of Ireland, Ireland and the Attorney General [2012] IESC 53 (08 November 2012)

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URL: http://www.bailii.org/ie/cases/IESC/2012/S53.html
Cite as: [2012] 2 IR 726, [2012] IESC 53

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Judgment
Title:
McCrystal -v- Minister for Children and Youth Affairs & ors
Neutral Citation:
[2012] IESC 53
Supreme Court Record Number:
486/2012
High Court Record Number :
2012 11508 P
Date of Delivery:
11/12/2012
Court:
Supreme Court
Composition of Court:
Denham C.J., Murray J., Hardiman J., Fennelly J., O'Donnell J.
Judgment by:
Denham C.J.
Status:
Approved
Result:
Allow And Set Aside
Judgments by
Link to Judgment
Concurring
Denham C.J.
Hardiman J.
Murray J.
Fennelly J.
Hardiman J.
O'Donnell J.
Hardiman J.

Ruling of the Court



THE SUPREME COURT
Appeal No. 486/12
Denham C.J.
Murray J.
Hardiman J.
Fennelly J.
O'Donnell J.
Between/
Mark McCrystal
Plaintiff/Appellant
and
Minister for Children and Youth Affairs,
Government of Ireland, Ireland
and the Attorney General
Defendants/Respondents
Judgment delivered on the 11th day of December, 2012 by Denham C.J.

This Appeal
1. This is an appeal by Mark McCrystal, the plaintiff/appellant, referred to as "the appellant", from the judgment and order of the High Court (Kearns P.) given on the 1st November, 2012.

2. The Minister for Children and Youth Affairs, the first named defendant/respondent, is referred to as "the Minister", and the defendants/respondents, the Minister, the Government of Ireland, Ireland and the Attorney General, are referred to collectively as "the respondents".

3. This matter was dealt with as a matter of urgency by the High Court, as it was by this Court, because the appellant sought injunctions relevant to the referendum taking place on the 10th November, 2012.

Ruling
4. On the 8th November, 2012, this Court delivered a Ruling on this appeal. The Court concluded that it was clear that there were significant passages in the Children's Referendum information booklet and on the website, www.childrensreferendum.ie, that did not conform to the principles enunciated in the judgment of this Court in McKenna v. An Taoiseach (No. 2 ) [1995] 2 IR 10, referred to as "the McKenna principles". Further, that while not all of the website or the booklet were in breach of the McKenna principles, it was not appropriate for the Court to redact either because of the overall structure of the booklet and website. Accordingly, the Court granted a declaration that the respondents had acted wrongfully in expending or arranging to expend public monies on the website, booklet, and advertisements, for the purpose of promoting a particular result in the Referendum of the Thirty-First Amendment of the Constitution (Children) Bill, 2012. The Court did not consider it either appropriate or necessary to grant an injunction, as it was assumed, correctly, that the respondents would cease distributing the material. It was stated that detailed judgments would be delivered on the 11th December, 2012. This judgment gives my reasons for that ruling.

Referendum
5. On the 19th September, 2012, the Minister for the Environment, Community and Local Government established a Referendum Commission under the Referendum Act, 1998, as amended.

6. The Thirty-First Amendment of the Constitution (Children) Bill, 2012 was passed by both Houses of the Oireachtas on the 3rd October, 2012.

7. Arrangements were made for the holding of the referendum and the 10th November, 2012, was appointed polling day.

8. On the 16th October, 2012, the Referendum Commission launched its public information campaign, by establishing a website and commencing distribution of an information guide on the referendum to all homes in the State.

9. The appellant made no complaint as to the impartiality or objectivity of the efforts of the Referendum Commission to provide neutral information to the public in accordance with the statutes.

10. Separately from the Referendum Commission, the Minister also commenced an information campaign. This included a website, and, on the 19th October, 2012, the commencement of delivery of an information booklet to all homes.

11. The appellant claimed that the information campaign run by the Minister, wrongfully and in breach of the Constitution, was not confined to the neutral transmission of information, but was designed and/or intended and/or likely to promote a particular result. It was claimed that, wrongfully and in breach of the Constitution, the respondents and each of them had engaged in expending or arranging to expend public monies on promoting a particular result.

Reliefs Sought
12. The appellant sought an injunction:


    (a) restraining the respondents from expending public monies on websites, booklets and/or otherwise for the purpose of promoting a particular result in the referendum on the Thirty-First Amendment of the Constitution (Children) Bill 2012.

    (b) restraining the respondents from representing as information material which is of a nature designed to promote a particular result.

    (c) requiring the termination and remedying of any such expenditure and/or representation.

    (d) restraining the distribution of the proposed government booklet until the determination of these proceedings and/or this motion.


13. The appellant did not seek an order restraining the holding of the referendum itself.

The High Court
14. By consent, in the High Court, it was ordered that the hearing of the motion would be the hearing of the action.

15. The High Court refused the relief sought, and ordered that the appellant pay to the respondents the costs of the proceedings when taxed and ascertained.

16.(i) The High Court (Kearns P.) delivered an ex tempore judgment on the 1st November, 2012.

(ii) The learned President considered the respondents' website, booklet and advertisements.

(iii) The High Court noted that funds voted by the Oireachtas to the Department of Children and Youth Affairs for 2012 included €3 million in respect of expenditure on the referendum. Of this €3 million, the Minister allocated to the Referendum Commission for its statutory functions €1.9 million. The balance of €1.1 million was used by the Minister, inter alia , to design and operate a website, to design and print a booklet, to take opinion polls, and to print media advertisements.

(iv) The High Court was asked to consider whether or not the principles outlined in McKenna v. An Taoiseach (No. 2 ) [1995] 2 IR 10, referred to as " McKenna ", had been observed by the respondents.

(v) The High Court considered the test to be applied by the Court and whether the principles established in McKenna had been breached.

(vi) Having quoted Hamilton C.J. in McKenna at p. 32, and said that that was the yardstick against which the material disseminated by the respondents in this case must be measured, the learned President stated:-


    "The breach complained of must be something blatant and egregious. It must be something which is to be seen or found in the presentation of the proposal and not be a matter which to quote counsel for the defendants, ‘mires' the court in assessing the merits of the substantive issues or in excessive scrutiny of each and every scrap of information disseminated by or on behalf of Government. Such an approach would place the courts in a situation where, having entered into this particular domain, they could be called upon in virtually every referendum to perform some exercise of hyper-zealous vigilance of every piece of information disseminated by Government. I cannot believe the Supreme Court in McKenna (No. 2) intended any such consequence. It must be remembered that in McKenna (No. 2) the Dáil had voted £500,000 for the express purpose that the same be used in a publicity campaign to encourage a Yes vote."

Thus, the President appeared to be adopting a test that the breach must be "something blatant and egregious", and that "it must be something which is to be seen or found in the presentation of the proposal …"

(vii) The High Court then considered the website, booklet and advertisements. Affidavits that had been filed were referred to, and it was held:-


    "While this must of course be my own personal view and others might take a different view, I do not believe on the basis of the evidence that it could ever be said that there is here what might be characterised as a clear constitutional abuse or a manifest solicitation to vote in a particular way.

    I regard the [respondents'] television, radio and print media advertisements as particularly inoffensive. These ads could not be interpreted as swaying voters in any way other than encouraging voters to vote. All three advertisements contain the words ‘The Children's Referendum on Saturday November 10th will give the people of Ireland the opportunity to decide about the place of Children in our Constitution' and ‘It's all about them … but it's up to you!'. There is no objective construction of these sound bites to interpret them as advocating a Yes vote.

    Having considered all of the evidence and legal arguments put before me, I am satisfied that the campaign run by the [respondents] contains material which is neutral, balanced and has the primary aim of informing the public about the forthcoming referendum. I do not find that the [respondents'] campaign can be said to plainly favour a particular outcome so that it is unconstitutional or wrongful. I therefore refuse the various reliefs as sought by the [appellant]."


Grounds of Appeal
17. The appellant appealed to this Court on a number of grounds, including the following:-

    "(i) The learned President erred in holding in effect that the need to show a ‘clear disregard' of the Constitution meant something more than that the breach was established on the balance of probabilities; and erred in particular in holding that the breach must be ‘blatant and egregious' and ‘not a matter which ... mires the Court in assessing the merits of the substantive issues or in excessive scrutiny of each and every scrap of information disseminated by or on behalf of Government'.

    (ii) The learned President erred in the use of images of children, child's writing and so forth were permissible on the basis of describing the referendum as a ‘referendum on children's rights'. Only Article 42A.1 refers expressly to children's rights and sections 2 and 3 directly involve the rights of a number of other parties. The learned President erred in failing, to hold that by promoting a child's point of view on the amendment the Government material favoured looking at the amendment from one of the many potential standpoints available, as opposed for example to a parent's standpoint.

    (iii) The learned President erred in holding that the smiling face in the O of ‘Vote' would be taken as an encouragement to vote rather than as a subliminal message as to how voters should cast their vote.

    (iv) The learned President erred in holding that images of children are neutral, simply pertaining to the subject matter of the referendum.

    (v) The learned President erred in holding that the removal of the facebook ‘like' option and the paragraph providing that the amendment underpins family support services was not significant and that the removed material was not advocacy.

    (vi) The learned President erred in holding that the inaccurate inclusion of the word ‘continue' on page 9 of the booklet is something on which ‘nothing turns'.

    (vii) The learned President erred in holding that the material did not advocate a particular outcome and was ‘neutral, balanced and has the primary aim of informing the public'.

    (viii) The learned President erred in holding that the advertising was inoffensive and did not sway voters.

    (ix) The learned President erred in failing to hold that the respondentshad not held the scales equally between the two sides in the referendum.

    (x) The learned President erred insofar as he failed to make any specific finding on a number of the complaints of the appellant including the claim of structural bias and the claim in relation to the Department's main website dcya.gov.ie.

    […]

    (xii) The learned President misdirected himself in law and upon the evidence and/or the weight and/or balance of the evidence in deciding that the appellant's application herein should be refused.

    […]"

Decision

Issues
18. There are two primary issues in this appeal. First, a consideration of the test to be applied to trigger court intervention. Secondly, an application of the test and the McKenna principles to the material published by the Minister.

The Constitution
19. The Irish people affirmed its sovereign right to choose its own form of Government and adopted the Constitution of Ireland in 1937. The Constitution belongs to the people and may be amended only by the people. In taking part in the process to determine whether to amend the Constitution or not, the people are taking a direct role in government. The decision whether to amend the Constitution, or not, is the decision of the people alone.

20. As O'Flaherty J. noted in McKenna , at p. 43, referendums are as old as democracy itself. The referendum process was introduced in the Constitution of 1922, and was described by Dr. Leo Kohn in " The Constitution of the Irish Free State ", at p., 238 as:-


    "The introduction of the machinery of direct legislation into the structure of the Irish Constitution reflects the democratic radicalism of its framers. The records of the Constituent Assembly, indeed, throw little light on the motives underlying the innovation. The desirability, especially under Irish conditions, of an active association of the people with the function of law-making was the only argument adduced in its support; yet its place in the general design of the Constitution leaves little doubt as to its inspiration and purpose. Its model is to be found less in the older American, Australian and Swiss precedents than in the post-War Constitutions of the new Continental Republics. In the latter democratic zeal, political doctrinarism and distrust of the mechanism of parties and Parliaments had combined to produce a highly involved design of direct legislation interwoven with the fabric of representative institutions. On that elaborate pattern the Irish system was framed."

21. The Constitution of Ireland, 1937 provides that Ireland is a democratic state. Democracy was described by Pringle J. in de Burca v. Attorney General [1976] I.R. 38 at p. 47:-
      "A democracy, as I understand it, is a form of government in which the sovereign power resides in the people as a whole and is exercised by the people either directly or through their elected representatives".
22. Pursuant to Article 6.1 of the Constitution, all powers of government, legislative, executive and judicial derive from the people. It remains the right of the people in final appeal to decide all questions of national policy, according to the requirements of the common good.

23. This case arises on the holding of a referendum. Article 46 of the Constitution provides that any provision of the Constitution may be amended in the manner provided in that Article. Article 46.2 states that every proposal for an amendment to the Constitution shall be initiated in Dáil Éireann as a Bill, and, having been passed or deemed to have been passed by both Houses of the Oireachtas, be submitted by referendum to the decision of the people in accordance with the law. Such a proposal, which is submitted by referendum to the decision of the people, shall be held to have been approved by the people if, having been so submitted, a majority of the votes cast at such referendum are cast in favour of its enactment.

24. Thus, the organs of government are involved in initiating a referendum. In practice, the Executive commences the process by a cabinet decision to hold a referendum. The legislature then plays a role in the process by initiating the proposal as a Bill in Dáil Éireann. The Bill is then passed, or deemed to have been passed, by both Houses of the Oireachtas. Once passed by the Oireachtas, the matter is submitted by referendum to the decision of the people. Thus, both the legislative and executive organs of State have a role in initiating the process of a referendum.

25. However, once the Amendment Bill leaves the Houses of the Oireachtas, the situation changes: the two organs of government, the executive and the legislature, have completed their role in this part of the referendum process. The situation changes from a process with the exercise of power by elected representatives in our democracy to an exercise of power directly by the people.

26. The referendum process, once the Bill has left the Houses of the Oireachtas, is not an executive or legislative function of government. It moves from a process where democracy is exercised by elected representatives to a process of direct democracy exercised by the people.

27. The judicial branch of government has a role also in the process. All powers of government are subject to the provisions of the Constitution. As Walsh J. stated in Crotty v. An Taoiseach [1987] IR 713 at p. 778:-


    "It is not within the competence of the Government, or indeed the Oireachtas to free themselves from the constraints of the Constitution … They are both creatures of the Constitution and are not empowered to act free from the restraints of the Constitution. To the judicial organ of Government alone is given the power conclusively to decide if there has been a breach of constitutional restraints."

28. In this case the appellant has brought a case before the Court submitting that there has been a breach of constitutional restraints by the respondents. Thus, it is necessary to consider the issues raised by the appellant.

Test for Intervention
29. The first issue to be determined is the identification of the correct test to be applied by the Court in determining whether or not it should intervene. In McKenna at p. 32, Hamilton C.J. stated:-


    "(i) The courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions provided that it acts within the restraints imposed by the Constitution on the exercise of such powers.

    (ii) If, however, the Government acts otherwise than in accordance with the provisions of the Constitution and in clear disregard thereof, the courts are not only entitled but obliged to intervene.

    (iii) The courts are only entitled to intervene if the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution."


[emphasis added]

30. While the High Court quoted the above statement by Hamilton C.J. in McKenna , it then diverted from that test. As quoted previously, the High Court stated that the breach must be "something blatant and egregious". It was also stated that it must be something seen or found in the presentation. Whilst the latter is a correct analysis of the relevant principles, the test "something blatant and egregious" is not. Nor is there an analogy to be found in the test established in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223, as formulated in this jurisdiction in The State (Keegan) v. Stardust Victims Compensation Tribunal [ 1986] 1 I.R. 642 and in O'Keefe v. An Bord Pleanála [1993] 1 I.R. 39. Nor is the intent of the respondents relevant. The test to be applied is as established in McKenna and is whether "… the circumstances are such as to amount to a clear disregard by the Government" of the principles stated. This is an objective test. Consequently, the High Court erred in the test it applied. I would allow the appellant's appeal on this ground.

31. I will proceed to apply the established test, i.e . to determine whether the respondents acted in clear disregard of the McKenna principles. Therefore, the facts require to be analysed to determine whether it has been established that there was a clear disregard by the respondents of the McKenna principles.

Burden of Proof
32. The burden of proof lies on the appellant to establish, on the balance of probabilities, that, on the facts of the case, there has been a clear disregard by the respondents of the McKenna principles.

33. On the first day of legal argument on this appeal, Richard Humphries S.C., counsel for the appellant, submitted that a publicly funded government publication about the referendum must be "fair, equal and impartial". David Hardiman S.C., for the respondents agreed that these words were appropriate. Later, it was also agreed that any such publication should be neutral, when viewed broadly. This is an appropriate statement of the McKenna principles and so these matters fall to be determined in accordance with the constitutional jurisprudence.

The McKenna Principles
34. The constitutional jurisprudence was stated in McKenna . In that case a majority of the Court (Hamilton C.J., O'Flaherty, Blayney and Denham J.J., Egan J. dissenting) held that the Government, in expending public monies in promotion of a particular result in a referendum process, was acting in breach of the Constitution. As Hamilton C.J. stated, at p. 42:-


    "The use by the Government of public funds to fund a campaign designed to influence the voters in favour of a ‘Yes' vote is an interference with the democratic process and the constitutional process for the amendment of the Constitution and infringes the concept of equality which is fundamental to the democratic nature of the State".

35. An election process, whether it be a local election, a general election or a referendum, is not an exercise of executive power by the Government.

36. In McKenna , the majority of the Court, (Hamilton C.J., O'Flaherty J, Blayney J, Denham J.J.) wrote judgments setting out their reasons for the jurisprudence. A majority found a breach of the constitutional right to equality. There were references also to the democratic process and fair procedures.

37. From these judgments I have extracted the following principles:-


    (i) The Government is entitled to campaign for a yes vote by any methods it chooses, other than by the expenditure of public funds. Such methods include writing, speaking, broadcasting, canvassing, leafleting and advertising. Some of these methods, such as writing, speaking, broadcasting on ordinarily scheduled current affairs programmes, and canvassing, are cost free. Others, such as the creation of a dedicated website, leafleting and advertising, involve expenditure. Partisan advertising, that is advertising in one way or another urging a particular result, may be carried out by any person or by an organised group or political party, including parties composing the Government of the day, but it must be done at their own expense. Any ‘information' disseminated by the Government at public expense must be equal, fair, impartial and neutral.

    (ii) The Government is entitled to campaign for the change, and the members of the Government are entitled in their personal, party or Ministerial capacity to advocate the proposed change. Government Ministers may use their State transport in relation to the referendum and may avail of the radio, television and other media to put forward their point of view. However, the Government and its members must not spend public monies in favour of one side.


The Right to Equality

    (iii) The right to equality applies in the referendum process. Spending public monies in favour of one side of a referendum breaches the equality rights of the citizens.

    (iv) Spending public monies in favour of one side of a referendum puts the voting rights of one class of citizen (those in favour of change) above those of another class of citizen (those against).

    (v) The public purse must not be expended to espouse a point of view which may be anathema to certain citizens, who, of necessity, have contributed to it.


The Right to a Democratic Process
    (vi) There is a right to a democratic process in the holding of a referendum. It is an interference in the democratic process for the Government to spend public monies in a referendum campaign to benefit one side rather than another. The democratic process is protected by the McKenna principles.

Right to Fair Procedures
    (vii) In submitting the proposed amendment to the decision of the people, the Government should observe fair procedures. The scales must be held equally between those who support and those who oppose an amendment to the Constitution.

Right to Freedom of Expression
    (viii) The freedom to express opinions incorporates the corollary right that in the democratic process of free elections, public funds should not be used to fund one side of an electoral process, whether it be a referendum or a general election, to the detriment of the other side.

    (ix) The Government has a right to give information, to clarify situations, to give explanations and to deal with unforeseen matters and emergencies, but in doing so, public funds should not be used to favour one side in a referendum.


38. The McKenna principles require that a publicly funded publication about a referendum must be fair, equal, impartial and neutral.

Principles Considered Elsewhere
39. The use of public funds in a referendum process has been the subject of careful consideration at international level, in other nations, and in statutory law. While the Irish jurisprudence may be found in McKenna , it is a useful exercise to consider the principles and law which have been established elsewhere.

Code of Good Practice on Referendums
40. A " Code of Good Practice on Referendums ", referred to as "the Code", has been adopted by the Venice Commission.

41. The European Commission for Democracy through Law, better known as "the Venice Commission", is the Council of Europe's advisory body on constitutional matters. The Commission was established in 1990 and it played a leading role in the adoption of constitutions which conform to the standards of Europe's constitutional heritage. Initially conceived as a tool for emergency constitutional engineering, the Commission has become an internationally recognised independent legal think-tank. Today it contributes to the dissemination of the European constitutional heritage, based on the continent's fundamental legal values, while continuing to provide "constitutional first-aid" to individual states. Ireland was one of 18 founding member states of the organisation when it was set up on 10th May 1990. Ireland was also one of the ten founding members of the Council of Europe, which was established on 5th May, 1949.

42. The reasons for, and the achievement of, the Code are set out in the Introduction to the European Commission for Democracy through Law (Venice Commission), Code of Good Practice on Referendums, adopted by the Council for Democratic Elections on 16th December, 2006, and the Venice Commission on the 16th and 17th March, 2007.

43. The Code includes the following:-


    " 2.2. Equality of opportunity

    a. Equality of opportunity must be guaranteed for the supporters and opponents of the proposal being voted on. This entails a neutral attitude by administrative authorities, in particular with regard to:

    i. the referendum campaign;

    ii. coverage by the media, in particular by the publicly owned media;

    iii. public funding of campaign and its actors;

    iv. billposting and advertising;

    v. the right to demonstrate on public thoroughfares."


44. On the issue of funding, the Code states as follows:-

    " 3.4 Funding

    a. The general rules on the funding of political parties and electoral campaigns must be applied to both public and private funding.

    b. The use of public funds by the authorities for campaigning purposes must be prohibited ."

    [Emphasis added]


45. On the matter of funding, the explanatory memorandum, which is appended to the Code, states:-

    "25. There must be no use of public funds by the authorities for campaigning purposes, in order to guarantee equality of opportunity and the freedom of voters to form an opinion."

46. Thus, it is clear that the McKenna principles are in concordance with the Code.

Other States
47. It is useful to note the approach taken in other States. There is no single way to achieve a fair and equal referendum process. States in Europe approach referendums and the requirement for equality and fairness by different routes. An example may be seen in the United Kingdom, in the Political Parties, Elections and Referendums Act, 2000, referred to as "the Act of 2000". Under this Act there is provision for the establishment of an Electoral Commission, which, inter alia , makes provision for election and referendum campaigns and the conduct of referendums. On the issue of funding, provision is made for the payment of not more than £600,000 to designated organisations, on each side in a referendum process.

48. Part VII of the Act of 2000 makes provision for referendums. Section 108 provides that the Commission may designate permitted participants as organisations to which assistance is available in accordance with s. 110. Section 108(2) states that where there are only two possible outcomes in the case of a referendum the Commission may designate one permitted participant as representing those campaigning for the outcome in question, but otherwise shall not make any designation in respect of the referendum. If there are more than two possible outcomes, provision is made for designated organisations. Where the Commission has made designations then assistance is available according to s. 110. Section s. 110(2) provides that the Commission shall make to each designated organisation a grant of the same amount, which shall not exceed £600,000.

49. The Electoral Commission in the United Kingdom is an independent body established by Parliament to work to support a healthy democracy, where elections and referendums are based on principles of trust, participation and no undue influence. The Electoral Commission is currently considering and making proposals for the Scottish Referendum in 2014. In relation to their timetable, for example, the Commission states that it should be able to publish its views on the intelligibility of a proposed referendum question around ten weeks after receiving notice of the wording of the question. In this time it carries out public opinion research.

50. Looking further afield to Australia, s.11(4) of the Referendum (Machinery Provisions) Act, 1984 provides that the Commonwealth shall not expend money in respect of the presentation of the argument in favour of, or the argument against, a proposed law except in relation to the preparation, printing and posting of pamphlets by the Electoral Commissioner. The pamphlets set out the arguments for and the arguments against the proposal to amend the Constitution. The arguments are submitted by a majority of the members of the Parliament in favour of the proposal and a majority of the members of the Parliament against the proposal. The Electoral Commission also prepares a statement outlining the textual alterations and additions proposed to be made to the Constitution of Australia. Thus, the federal government cannot spend public monies in favour or against a proposal to amend the Constitution, save for the printing and distribution of information which presents the official yes or no sides of the argument, and the functioning of the Electoral Commission.

51. In the State of Victoria, Australia, s. 177C of the Electoral Act, 2002 is concerned with the "distribution of arguments for and against Bill to electors" regarding the amendment of the State's Constitution Act, 1975. It mirrors the provisions of s. 11(4) of the Referendum (Machinery Provisions) Act, 1984. The public monies of the State cannot be spent in favour or against a proposal to amend the Constitution Act, 1975.

The Facts
52. Having identified the relevant law in Ireland in the McKenna principles, it is now necessary to identify the relevant facts of the case.

53. At issue in this case is the use of public funds in the publication of a booklet, website, and advertisements, by the Minister in the time between the publication of the Bill as passed by the Oireachtas and the 10th November, 2012, when the people were asked to vote on a proposed change to the Constitution.

54. The booklet, website and advertisements, on their face failed the test of being fair, equal and impartial, failed to be neutral, and failed to hold the scales equally between both sides, as may be seen by looking at the materials.

55. There was language in the materials which, on its face, favoured one side over the other. Thus, for example, on the front page of the booklet and on the home page of the website there were slogans. One of the slogans was "Protecting children". As counsel for the appellant argued, for some who opposed the referendum, the referendum was not about protecting children, but would involve more State intervention with children, which they opposed.

56. Yet the phrase "Protecting Children" was on both the booklet and the website as follows:

Booklet

The phrase "Protecting children" could be found in the Children's Referendum information booklet published by the Minister on the following pages:-


    (i) Cover page of the booklet.

    (ii) Page 1 of the booklet.

    (iii) Page 6 of the booklet.

    (iv) Page 14 of the booklet.


Website

The phrase "Protecting children" could be found on the Children's Referendum website published by the Minister on the following web-pages:-


    (i) In the centre of the home page of the website under the heading "What will change if the Referendum is passed?"

    (ii) As the first link on the left-hand side of the home page of the website. This link continued to be visible when other web-pages were accessed by someone browsing the website.

    (iii) When the second link "Protecting children" was accessed, this phrase appeared at the beginning of the web-page.

    (iv) In the text written under the "Supporting Families" web-page where it stated that "[p]rotecting children and supporting families are simply two sides of the one coin".

    (v) In the text written under the "What will change if the referendum is passed?" web-page.


57. Variations of the phrase "Protecting children" could be found as follows:-

    (i) A variation of the phrase appeared on the web-page "Protecting Children" by use of the phrase "Protect the child's safety and welfare in the home".

    (ii) A variation of the phrase appeared on the web-page "Why do we need this referendum" by use of the phrase "protection of all our children".

    (iii) Another variation in the form of "[t]o protect children from abuse and neglect" appeared in the text written under the "What will change if the referendum is passed?" web-page.

    (iv) There was also a similar variation under the "FAQs" web-page where the question was posed "Why is this proposed Referendum needed?". In the text written under this, reference was made to "ensuring the protection of all of our children".

    (v) In the text written under "Don't children already have rights under the Constitution?" reference was made to "the protection and equality of children".

    (vi) In the section which referred to "Minister Fitzgerald launches information website for Children's Referendum" a comment on the wording of the proposed amendment was attributed to the Minister whereby she stated that "[i]t's about protecting children from abuse and neglect".


58. Another slogan used by the Minister in the booklet and website was "Supporting Families". This was not impartial, fair, nor did it pass the equality test.

59. As counsel for the appellant argued, for some who opposed the referendum, the amendment did not support families, indeed, to the contrary, it was argued that the referendum was detrimental to families, as it may give rise to more State intervention in families.

60. Yet the phrase "Supporting Families" was on both the booklet and website, as follows:-

Booklet

The phrase "Supporting families" could be found in the Children's Referendum information booklet on the following pages:


    (i) Cover page of the booklet.

    (ii) Page 1 of the booklet.

    (iii) Page 6 of the booklet.

    (iv) Page 14 of the booklet.


Website

The phrase "Supporting families" could be found on the Children's Referendum website on the following web-pages:


    (i) In the centre of the home page of the website under the heading "What will change if the Referendum is passed?"

    (ii) As the first link on the left-hand side of the home page of the website. This link continued to be visible when other web-pages were accessed by someone browsing the website.

    (iii) When second the link "Supporting families" was accessed, this phrase appeared at the beginning of the web-page. In the text written under this it stated that "[p]rotecting children and supporting families are simply two sides of the one coin".

    (iv) In the text written under the "What will change if the referendum is passed?" web-page.


61. Variations of the phrase "Supporting families" could also be found in the section which refers to "Minister Fitzgerald launches information website for Children's Referendum", whereby a comment on the wording of the proposed amendment is attributed to the Minister and she stated that "[i] t's about supporting families".

Need
62. Another aspect of the material is also relevant. On both the booklet and website there is a question posed: "Why do we need a Referendum"? This infers a need. But, as counsel for the appellant argued, for those who opposed the amendment there was no need. The posing of this question was in effect campaigning and would not have looked out of place in information provided by a partial advocate seeking a Yes vote.

63. Yet the query "Why do we need a Referendum?" was on both the booklet and the website, as follows:-

The phrase "Why do we need a Referendum" could be found on page 2 of the Children's Referendum information booklet. The phrase "Why do we need a Referendum" could be found on the Children's Referendum website on the following pages:-


    (i) On the home page of the website.

    (ii) This was alongside a link to the word "More" which brought the reader to a web-page with the heading "Why do we need this Referendum".

    (iii) In the "FAQs" web-page the question was posed "Why is this proposed Referendum needed?".


Children Silhouette and the word "Vote"
64. The title "Children's Referendum" represented on both the website and the information booklet is juxtaposed with a silhouette of what appears to be three children linking hands. The "smiley face" which is represented in the letter "O" in the word "Vote" on the homepage of the website has a childish quality to it as if it were drawn by a child. The website had photographs of children, including one with the Minister.

Certainly the referendum was concerned, inter alia , with children and the respondents have submitted that these visual representations were intended simply to depict the issue with which the referendum was concerned. The appellants argued that these visual representations were designed to induce an emotional response in the reader and actually advocated for a yes vote, in a subliminal fashion rather than being neutral and objective visual representations. The images were positive of children and involved a sense of their youth and vulnerability, which, combined with, for example, the phrase, "protecting children", was partial.

In this regard, it is noteworthy that the Referendum Commission restrained itself from depicting images of children. Its written information guide and television advertisements simply depicted a cross section of men and women of varying ages. This conveyed a clear message of Irish citizens considering the proposed amendment and how important it was to vote on polling day.

"Like" link
65. Another feature of the website was the "like" link associated with the social media website "Facebook". This appeared on the children's referendum website and it was removed because there was no option but to click the "like" link. This illustrated the campaigning tone of the website in favour of a yes vote and indeed it was removed by the respondents when objections were made by the appellant.

The admitted error
66. In addition, there was an admitted error. In both the High Court and in this Court, the appellant highlighted an error on page 9 of the Children's Referendum information booklet, produced by the Minister, which was also available on the website "www.childrensreferendum.ie".

67. In the third paragraph of page 9 of the booklet, a statement is made as to the effect the proposed amendment to the Constitution will have, and how "[k]ey requirements will continue to be as follows:" [Emphasis added]. This statement was then followed by five bullet points which provide that:-


    • the State can only make use of the power " in exceptional cases ";

    • a failure of parental duty towards the child must exist - " where the parents, regardless of their marital status, fail in their duty towards their children";

    • any failure must involve harm or risk to the child's safety or welfare - " to such an extent that the safety or welfare of any of their children is likely to be prejudicially affected ":

    • the actions of the State must be in balance with the harm or risk to the child that needs to be addressed - " by proportionate means "; and

    • the actions the State can take must be set out in law - " as provided by law ".


68. The appellants submitted that it was incorrect to state that these matters were a continuation of the requirements under the Constitution, rather that the second, third, fourth and fifth bullet points were new elements provided for in the amendment. It was further submitted that this was a crucial inaccuracy as a citizen who read it would be more likely to be lulled into complacency and acceptance of the proposed amendment, as compared with a citizen who was correctly informed that significant change to the language of constitutional provisions was being proposed in the amendment.

69. Counsel for the appellant submitted that this error was drawn to the attention of the respondents in the second affidavit of the appellant dated 23rd October 2012. On 1st November 2012, which was Day 2 of the High Court hearing, the respondents acknowledged that page 9 of the booklet was in error because of the use of the word "continue". By this time, 66 per cent of all government information booklets were distributed to homes throughout the State. The learned President of the High Court gave his ex tempore decision on 1st November 2012 and in relation to page 9 of the booklet was satisfied that "…there was no deliberate attempt to distort the facts and that in reality, nothing turns on this".

70. Notwithstanding the acceptance of the error by the respondents, by the time the appeal was heard in this Court on the 6th November, 2012, no attempt had been made by the respondents to remedy the error contained in the booklet, either in its hardcopy form or on the website. The respondents continued to distribute the booklet to homes in the State. It was not until the morning of Day 2 of the hearing of the appeal, on the 7th November, 2012, that counsel for the respondents informed the Court that the error in using the word "continue" was removed from the website. This occurred sometime between 10.30am and 11.30am.

71. In supplemental written legal submissions, which were in reply to the respondents' oral submissions before this Court, counsel for the appellant noted that this correction was not brought to the attention of the public by way of an information notice stating that the correction had been made.

72. This was a significant error made by the respondents.

Television, radio and newspaper advertisements
73. The Minister funded the production of television, radio and newspaper advertisements.

The television advertisement in both Irish and English contained two images of a child and a group of children; two images of a male and female teenager; an image of a child with an older woman, and an image of a child with an older couple. A voiceover states that "The children's referendum will give the people of Ireland the opportunity to decide about the place of children in our Constitution. It's all about them. But it's up to you". This latter sentence appeared written on screen during the advertisement. A voiceover then gave details regarding polling day and stated that "Your vote counts". Towards the end of the advertisement, the word "Vote" is depicted with the letter "O" characterised as a "smiley face". Underneath this there was text stating that viewers could visit the children's referendum website and see the information booklet delivered to their door.

The radio advertisements included voiceovers of three children, two female and one male stating their name and ages as being fourteen, nine, and three and one quarter. This was alongside the voice of an adult stating that "It's all about them. But it's up to you" who proceeded to give details about polling day stating that "Your vote counts". Similarly, listeners were informed that they could visit the children's referendum website or see the information booklet delivered to their home.

74. The appellants argued that the advertisements effectively advocated for a yes vote due to use of children's images, the use of "smiley faces", the use of children's voices; and also that no image represented a family to include a parent or parents, apart from what appears to be two images of older people, perhaps depicting grandparents. The respondents replied that the advertisements were simply an encouragement to vote on an important issue.

The advertisements were clearly produced with the benefit of expert advice in the area of media communications. The breakdown of the €1.1 million spent by the Minister on various consultants is plain to see in the High Court judgment. In an event as important and solemn as a referendum, there is a need for restraint in the promotion of views paid for by public funds. This restraint was exemplified by the Referendum Commission's advertisements. In the Minister's advertisements when taken as a whole, they promoted a Yes vote, and were not impartial.

75. The newspaper advertisements were headed "It's all about them…but it's up to you!" alongside the silhouette of three children holding hands. It gave the date of polling day, included the word "Vote" wherein the letter "O" was represented by a "smiley face", together with the statement "Your vote counts". A statement was made to the effect that the referendum gives the people of Ireland the opportunity to decide about the place of children in our Constitution. Readers were directed to find more information on the children's referendum website and to "Read the Department of Children and Youth Affairs booklet, which is being delivered to your home". An image of the front page of the booklet took approximately one quarter of the space of the advertisement. The front page of the booklet carried the slogans "Protecting children" and "Supporting families". I have already addressed the issue of those slogans.

76. While not everything in the Minister's advertisements or indeed the information booklet and website was objectionable under the McKenna principles, it is not necessary to conduct a punctilious examination of the minutiae of each one of them. It is not the task of this Court to nit pick through every last detail of the material. We live in an age of constant marketing, public relations exercises and intense forms of modern communications, designed to induce a response in the recipient of material. In many ways it is a completely different time to that of the decision in McKenna seventeen years ago. However, one aspect remains constant. An event as important and solemn as a referendum to amend our Constitution requires that publicly funded information is fair, equal, impartial and neutral. This requirement remains as firm as ever. The cumulative effect of the matters identified in the above materials amounts to a clear disregard of the McKenna principles.

Application of the McKenna Principles
77. It is clear from the facts set out previously that the material published by the Minister, funded from public monies, breached the McKenna principles. The respondents, in expending public monies in promotion of a particular result in the referendum process were acting in breach of the Constitution. Applying the McKenna principles, as stated earlier in the judgment, from 1995, the respondents breached the principles as follows:-


    (i) The Government is entitled to provide information and to campaign for a "Yes" vote, by methods other than the use of public funds. However, the booklet, website and advertisements the subject of this appeal were funded by public funds.

    (ii) The Government must stop short of spending public monies in favour of one side. In this case the booklet, website and advertisements favoured one side and were funded from public monies.

    (iii) Spending public monies in favour of one side of a referendum breaches the equality rights of the citizens. In this case the material published by the respondents favoured one side in the referendum.

    (iv) Thus, the voting rights of one class of citizen (those in favour of change) were placed above those of another class (those against).

    (v) The public purse was used to espouse a point of view anathema to some citizens, who, of necessity, had contributed to it.

    (vi) There was an interference in the democratic process by the respondents spending public monies in a referendum campaign to benefit one side.

    (vii) There was a breach of fair procedures, as the scales must be held equally between those who support and those who oppose an amendment to the Constitution.

    (viii) The respondents used public funds to fund one side of the electoral process contrary to a fair democratic process.

    (ix) The information, clarification and explanation given in the booklet, website and advertisements favoured one side in the referendum.


These principles were synthesised in legal argument before the Court, into a principle that a publicly funded publication about the referendum must be fair, equal, impartial and neutral. On the facts of the case, I am satisfied that the booklet, website and advertisements published by the Minister with the use of public funds were not fair, equal, impartial or neutral. Thus, I would allow the appeal on this second issue.

Bona fides of the Respondents
78. In written submissions to this Court, counsel for the respondents stated that the respondents believed that they complied with the decision of this Court in McKenna . It was submitted that the respondents were conscious of their obligations when drafting the disputed information, which is now the subject of this appeal.

79. In written submissions to this Court, counsel for the appellant submitted that for the purposes of the appeal there was no challenge to the proposition that the respondents endeavoured to comply with the decision of this Court in McKenna, as they understood it. Thus, the appellant did not controvert the bona fides of the respondents.

80. This appeal arises because of €1.1 million of public monies given to the Minister for the provision of information to the public in the referendum campaign.

81. The Minister was spearheading the Government campaign in the referendum process. In the circumstances, it is manifestly clear that the Minister believed that a "Yes" vote in the Referendum would be a good thing.

82. It is questionable whether it is wise to ask a Minister, who is promoting a referendum on behalf of the Government, to publish neutral information on the Referendum. It may be that it is itself inherently unfair to ask a Minister, and indeed her Department, which are promoting a referendum, and who clearly believe in its merit, and wish for a "Yes" vote, to draft and publish neutral information. This role may be best performed by a body not invested in the referendum.

83. In all the circumstances of this case, as have appeared before the Court, I am satisfied that the respondents acted in a bona fide manner.

Public funding of information
84. In the referendum in issue in this case, the Referendum Commission was given €1.9 million for the provision of information to the public. The Referendum Commission provided neutral information in a guide, on a website, and in advertisements during the Referendum campaign. No complaint was made by the appellant as to any of the publications of the Referendum Commission.

85. The role of the Referendum Commission has been addressed in reports from recent Commissions. The Lisbon Treaty 2009 Report recommended that the Minister should consider establishing an independent body, such as the proposed Electoral Commission, which would consolidate various electoral functions, including those of the Referendum Commission. As was noted also in a previous Report, such a body would have the additional advantage of being a permanent and ongoing body which would have ample time to prepare and promote public awareness of important constitutional amendments.

Conclusion
86. Thus, in conclusion, I find that the appellant's appeal should be allowed on the two issues before the Court. First, the High Court erred in the test it applied to trigger court intervention, and I would allow the appeal on that ground. Secondly, on applying the correct test to the material published by the Minister, I conclude that there was a clear disregard by the respondents of the McKenna principles. The material published by the Minister was not fair, equal, impartial or neutral. Consequently, I would allow the appeal on the second issue also.









JUDGMENT of Murray, J. delivered the 11th day of December, 2012

1. "We , the people …

"Do hereby adopt, enact and give to ourselves this Constitution".

This is the concluding phrase of the preamble to the Constitution, which expresses the truth that the existence of our constitutional democracy, including the constitutional framework within which it functions, owes its legitimacy exclusively to the consent of the people. That constitutional framework can only be altered with the consent of the people obtained in a manner prescribed by the Constitution itself, namely, by consultation of the people in a democratic referendum.

2. Government by consent of the people has been considered as an essential tenet of democratic states since it was first fully embraced in the Constitution of the United States - a form of democracy which was then portrayed by its supporters as ‘the great experiment' and by a sceptical elite, particularly in Europe, as a recipe for chaos. The tenet was echoed in its most rhetorical and famous form by Lincoln in his Gettysburg address when he referred to "government of the people, by the people, for the people".

3. That tenet in our Constitution was the sub-stratum of the decision of this Court in McKenna v. An Taoiseach (No. 2) [1995] 2 IR 10, when it declared that the use of public funds to promote in a one-sided manner a particular outcome to a referendum was constitutionally impermissible.

4. Hamilton, C.J. in his judgment in that case stated:

      "Having regard to the importance of the Constitution as the fundamental law of the State and the crucial role of the People in the adoption and enactment thereof, any amendment thereof must be in accordance with the constitutional process and no interference with that process can be permitted because, as stated by Walsh J. in Crotty … ‘it is the people themselves who are the guardians of the Constitution'."

The Ruling of the Court
5. On 8th November, 2012 the Court ruled in this case that the above named respondents had "… acted wrongfully in expending or arranging to expend public moneys on the website, booklet and advertisements in relation to the Referendum on the Thirty First Amendment of the Constitution (Children) Bill, 2012, in a manner which was not fair, equal or impartial."

6. The Court so ruled by applying the principles pronounced in the McKenna case. The website, booklet and advertisements referred to are those which were published and promoted by the Minister for Children and Youth Affairs in connection with that proposed amendment, since adopted. They were funded and paid for out of an allocation to the Minister by the Oireachtas of a sum of €1.1 million of public funds for the purposes of the referendum campaign. The appellant, who is the plaintiff in these proceedings, sought to restrain the respondents from continuing to use the material referred to on the grounds that they were in breach of the principles set out in the McKenna case. His claim was dismissed in the High Court and on appeal to this Court he obtained a ruling in his favour. Since an urgent decision of the Court was required its ruling was given on the 8th November, 2012 and it was stated that the reasons for the ruling would be given at a later date. The history and pleadings in these proceedings are amply set out in the judgment of the Chief Justice. This judgment sets out the reasons why I agreed with the ruling of the Court on that date.

The McKenna Principles
7. The McKenna principles derive from the judgments of the majority in the McKenna case. The decision in that case was taken in the context of the devolution and separation of governmental powers. Hamilton, C.J..cited the dictum of McCarthy, J. in Slattery v. An Taoiseach [1993] 1 I.R. 286 at 303:

      "Article 6 proclaims that all powers of Government, legislative, executive and judicial, are derived under God from the People. In having a referendum the People are taking a direct role in Government either by amending the Constitution or refusing to amend it. Such an amendment can only be initiated by the legislature, where the relevant legislation may be promoted by any member of the legislature. When the relevant legislation has been passed by both Houses the constitutional process must continue."
8. In Article 6.1 the people delegated the exercise of the powers of government and paragraph 2 of that article specifies:
      "These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution."
9. The organs of State referred to are the legislative executive and judicial organs. Thus, the Government exercises executive powers conferred on it by the Constitution. Article 28.2 of the Constitution provides that:
      "The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government."
10. In his judgment in the McKenna case Hamilton, C.J. recalls the dictum of Walsh, J. in the Crotty case where it was stated:
      "It is not within the competence of the Government, or indeed the Oireachtas to free themselves from the constraints of the Constitution. … They are both creatures of the Constitution and are not empowered to act free from the restraints of the Constitution. To the judicial organ of Government alone is given the power conclusively to decide if there has been a breach of constitutional restraints."
11. Hamilton, C.J. also pointed out that the power of the courts to supervise or interfere with the exercise of executive power by the government is limited, citing FitzGerald, C.J. in Boland v. An Taoiseach [1974] I.R. 338 who stated:
      ‘… in my opinion, the Courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions, unless the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution.'
12. Having reviewed these and other dicta in previous judgments of this Court Hamilton, C.J. concluded:
        "These dicta clearly establish that

        1. The courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions provided that it acts within the restraints imposed by the Constitution on the exercise of such powers.

        2. If, however, the Government acts otherwise than in accordance with the provisions of the Constitution and in clear disregard thereof, the courts are not only entitled but obliged to intervene.

        3. The courts are only entitled to intervene if the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution." (emphasis added)

13. Hamilton, C.J. went on to consider whether there had been, in the McKenna case, a clear disregard by the government of its constitutional duties in expending public funds for the purpose of promoting a campaign for a "yes" vote in the proposed referendum.

14. Hamilton, C.J. explained in the course of his judgment that " neither the Constitution nor the Referendum Act, 1994, envisaged any role for the Government in the submission of the Bill by referendum to the decision of the People. " He went on to conclude:

      "The action of the Government in expending public funds on the promotion of such a campaign was not an action in pursuance of the executive power of the State.

      Even if it were, it would still be subject to examination and review by the Court in accordance with the dicta quoted in the course of this judgment.

      The role of the People in amending the Constitution cannot be overemphasized. It is solely their prerogative to amend any provision thereof by way of variation, addition or repeal or to refuse to amend. The decision is theirs and theirs alone."

15. The Chief Justice concluded:
      "Once the Bill has been submitted for the decision of the People, the People were and are entitled to reach their decision in a free and democratic manner.

      The use by the Government of public funds to fund a campaign designed to influence the voters in favour of a "Yes" vote is an interference with the democratic process and the constitutional process for the amendment of the Constitution and infringes the concept of equality which is fundamental to the democratic nature of the State."

16. In his judgment O'Flaherty, J. pointed out that the government is entitled to spend money in providing information to the public on the implications of a constitutional amendment and indeed entitled to campaign, as are individual members of the government, for a change in the Constitution. He added that it would be " unrealistic to expect a Government to remain neutral on a topic which it has, through its initiative, brought to the People."

17. He added however:

      "…the Government must stop short of spending public money in favour of one side which has the consequence of being to the detriment of those opposed to the constitutional amendment.

      To spend money in this way breaches the equality rights of the citizen enshrined in the Constitution as well as having the effect of putting the voting rights of one class of citizen (those in favour of the change) above those of another class of citizen (those against). The public purse must not be expended to espouse a point of view which may be anathema to certain citizens who, of necessity, have contributed to it."

18. He went on to add:
      "I should think it bordering on the self-evident that in a democracy such as is enshrined in our Constitution (which is not exclusively a parliamentary democracy; it has elements of a plebiciary democracy) it is impermissible for the Government to spend public money in the course of a referendum campaign to benefit one side rather than the other."
19. Blayney, J. in his judgment noted:
      "Neither the Constitution nor the Act gives any other role to the Government. And even in the matter of giving information to the electorate about the proposed amendment, the task of doing this, as appears from the terms of s.23 of the Act … is given to the two Houses of the Oireachtas and not to the Government. It is reasonable, accordingly, to infer that neither the Constitution nor the Referendum Act, 1994, envisaged that the Government, once a Bill for the amendment of the Constitution had been passed, would have any further role to play other than to submit the Bill by referendum to the decision of the People."
20. He concluded that the government were constitutionally bound to act fairly in discharging its executive functions without " favouring any section of the People at the expense of any other section. This would seem to be a minimum requirement for the discharge of any constitutional obligation. The people are entitled to be treated equally."

21. Denham, J. agreed "…with the judgment of the Chief Justice that in expending public monies to campaign for a specific outcome to a referendum the Government are not acting within their powers under the Constitution and the law."

22. In the course of her judgment she stated:

      "The citizen is entitled under the Constitution to a democratic process. The citizen is entitled to a democracy free from governmental intercession with the process, no matter how well intentioned. No branch of the government is entitled to use taxpayers monies from the Central Fund to intercede with the democratic process either as to the voting process or as to the campaign prior to the vote."
23. She pointed out that " Power derives from the People, and is exercised under the Constitution through their organs of government (legislative, executive, judicial). Power and decision-making in referenda is with the People."

Conclusion on the McKenna Principles
24. Having regard to the provisions of the Constitution and the dicta in the judgments of the majority in the McKenna case, I think it can be properly said that a referendum, by its very nature and essence, involves the people directly in the governance of the country. This is their right and it is a right enjoyed exclusively by them. It was after all, in the words of the Preamble, the people who enacted and gave unto themselves the Constitution. All sections of the community have an equal right to participate in the constitutional and political process that is engaged when a referendum is being held. Once a referendum process has been launched with the passing of the appropriate Bill, the Constitution does not envisage or confer any special role, let alone power, on any of the organs of State in that process. The spending of public funds to advocate one side to the detriment of others would distort that democratic process.

25. To place matters in context it might be well to bear in mind that both the government and members of the Oireachtas will invariably have had a major role to play in the political process leading to the passing of a Bill containing a proposal to amend the Constitution. Every such Bill is invariably preceded by an extended public and political debate, both within the Oireachtas and outside it, on whether a particular issue or question should be the subject of an amendment to the Constitution. The government and members of the Oireachtas have a public constitutional role to play in the formulation of any proposal to amend the Constitution, including the text of any such proposal. There is the legislative process that follows the initiation of any Bill containing such a proposal. Both the government and members of the Oireachtas have the opportunity to express in both Houses the views on the merits or otherwise of any such proposal and to advocate reasons why it should or should not be adopted. Extensive debates within the Houses of the Oireachtas can serve to inform the public on the issues which arise and to persuade them as to how they should vote in the event of the Bill being adopted.

26. In a subsequent political campaign neither is the Government nor members of the Oireachtas restricted in their capacity, nor should they be, to advocate one view or another concerning the merits of the proposed amendment to the Constitution. The inhibition that derives from the McKenna principles relates to the use of funds from the public purse to advocate one side of the argument to the detriment of others once the matter goes before the People for their decision.

27. Such a constitutional restriction does not mean that members of the government or of the Oireachtas are restrained from participating in a referendum campaign in their capacity as office holders, including the incidental use of facilities (such as offices and incidental services) which are available to them as office holders or elected representatives.

28. From the foregoing I would conclude that:

      (a) The right to a fair and democratic referendum process is a right vested in the People as the ultimate guardians of the Constitution. Once the constitutional process of consulting the people by way of referendum has been initiated on the passing of an appropriate Bill that right must be respected.

      (b) Such a right means that the use of funds from the public purse to promote one side of the referendum campaign to the detriment of the others would be in breach of that constitutional right.

29. In the course of his submissions counsel for the appellant submitted that the principles pronounced in McKenna required that any expenditure of public funds by the government for the purposes of a referendum campaign must be expended in a manner which is ‘fair, equal and impartial'. This approach was not disputed by counsel for the respondents.

30. This is the formulation agreed and applied by the Court when it concluded that the monies expended by the government on the website, booklets and advertisements in relation to the recent campaign were " not fair, equal or impartial ".

31. That is the formulation to be applied for the purposes of examining whether any such expenditure complies with constitutional requirements.

The Onus of Proof
32. It is not in issue that the onus of establishing that the respondents acted in breach of their constitutional duties lies on the appellant, the plaintiff in this case. This in turn gives rise to the test to be applied by the Court in deciding whether grounds have been established which require the Court to intervene to protect a party from a breach of constitutional duty on the part of one of the organs of state in a case such as the present. The dissemination of information in a referendum process with use of public funds is, in itself, lawful provided it does not give rise to an unfair, impartial or unequal interference with that process. The State may use various means, including statutory mechanisms, to disseminate information concerning the matters arising in relation to a proposed amendment. The Referendum Commission is one such example. No complaint has been made concerning the manner in which the Referendum Commission exercised its functions and disseminated information in the course of the referendum in question.

33. In the High Court the learned President also dealt with this case as a matter of urgency, and delivered an ex tempore judgment. In the course of his judgment he alluded to the " clear disregard " test referred to by Hamilton, C.J. in McKenna . However, in assessing whether the material in this case was in breach of the government's constitutional obligations he added:

      "The breach complained of must be something blatant and egregious. It must be something which is to be seen or found in the presentation of the proposal and not be a matter which to quote counsel for the defendants, "mires" the court in assessing the merits of the substantive issues or in excessive scrutiny of each and every scrap of information disseminated by or on behalf of Government. Such an approach would place the courts in a situation where, having entered into this particular domain, they could be called upon in virtually every referendum to perform some exercise of hyper-zealous vigilance of every piece of information disseminated by Government."
34. I sympathise with the concerns of the learned President in the latter part of the passage quoted. It is not for this Court to be concerned with the merits, as such, of statements made by information officially disseminated in the course of a referendum campaign. Words and phrases are often imprecise tools however carefully crafted. Ambiguities may be unavoidable, and it may often be valid to say that something could have been better phrased. In a judicial review of the dissemination of such information the Court must take an overall view of the broad thrust and effect of the material complained of. It is not simply a question of trawling through the material so as to pick up on questionable nuances or slippages in presentation. On the other hand, objective judicial scrutiny of such material in order to determine whether, taken as a whole, it offends against the principles of fairness, impartiality and equality does not necessitate the Court in becoming enmeshed in the merits as such of the material or its minutia. Moreover, the intention of the disseminator of the information is not determinative of the outcome of such scrutiny. In the present case there is no allegation that there was any mala fides behind the dissemination of the material. On the contrary, all the evidence is that a great deal of care was exercised with a view to avoid a breach of the McKenna principles, as perceived by the compilers of the material. The issue of mala fides may only be relevant to an issue as to whether the Court should issue a mandatory order against a government (see TD v. Minister for Education & Others [2001] 4 I.R. 260).

35. However, it was submitted on behalf of the appellant that the learned President erred in adopting " blatant and egregious " as the test to be applied in any judicial scrutiny of the material in this case.

36. In the McKenna case Hamilton, C.J. referred to the decision of this Court in Boland v. An Taoiseach (cited above), and in particular the judgment of FitzGerald, C.J. in which he expressed the view that the courts should not interfere with the exercise by the government of its executive functions " unless the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred upon it by the Constitution." He then went on to apply in that case a test of " clear disregard ". That test is clearly consistent with the approach adopted by the other members of the majority in the McKenna case.

37. It is axiomatic to state that the Government of the day must conduct its affairs in accordance with its obligations under the Constitution. If it clearly disregards those duties then the courts are bound to intervene where this is necessary to protect the rights of others. I do not consider that the test of " blatant and egregious " was the correct one to be applied.

38. Accordingly, the onus in this case is on the appellant to establish that the material in question was in " clear disregard " of the constitutional principles referred to in the McKenna case. That is the objective test to be applied

Other Countries
39. It may be appropriate to note in passing that the principles deriving from the Constitution which ensure that the referendum process should be fair are not unique to this country. Many countries apply comparative principles, whether derived from the constitution or statute law, which prohibit, regulate or control the use of public funds in referendum campaigns with a view to guaranteeing the fairness of the referendum process within their constitutional framework. These include Australia, Austria, Spain, Portugal, Finland, Sweden, the United Kingdom and certain states in the United States, to refer to some of them. In 2006 the European Commission for Democracy through Law, otherwise known as the Venice Commission, and the Council for Democratic Elections adopted a Code of Good Practice on Referendums which included the statement that " Equality of opportunity must be guaranteed for the supporters and opponents of the proposal being voted on. This entails a neutral attitude by administrative authorities, in particular with regard to: … public funding of campaign and its actors ". In the explanatory memorandum accompanying the code it states: " There must be no use of public funds by the authorities for campaigning purposes, in order to guarantee equality of opportunity and the freedom of voters to form an opinion ."

The Material
40. In support of his claim the plaintiff relied upon affidavits of three witnesses. These were Mr. John Waters, the well known journalist, Miss Lyn Sheridan, an expert in public relations, and Doctor Colm Kenny, professor of communications at Dublin City University.

41. Affidavits were also filed on behalf of the respondents. These included Mr. Gerald Angley, First Secretary of the Department of Foreign Affairs & Trade, who had been temporarily assigned to the Department of Children & Youth Affairs; Miss Elizabeth Canavan, Assistant General Secretary of the Department of Children & Youth Affairs, and Doctor Eoin O'Malley, lecturer in Political Science at the School of Law and Government, Dublin City University. The respondents also relied on an affidavit from Dr. Richard Sinnott, Emeritus Professor of Political Science, University College Dublin, and Dr. Kevin Rafter, a lecturer in political communication and journalism at Dublin City University. All of these opponents provided interesting and thoughtfully expressed opinions on the material in issue. They were expressed from different perspectives and different in their analysis as to the nature and effect of the material, particularly in terms of whether it could be considered to advocate a yes vote in the referendum.

42. In certain circumstances evidence of this nature could be of vital importance, but in the circumstances of this case they constitute opinions based almost entirely an analysis of written material contained in the publications the subject of the proceedings. In this case the intended meaning of the textual material is patent. In the end the Court has to make up its own mind on the nature and import of the material itself applying the objective test referred to above.

43. In the circumstances of this case, I consider that the best evidence lies with the text of the material itself, namely, as contained in the website, the booklet and the advertisements. For the most part the material which they contain was set out in plain language. It was addressed to the public at large. In the final analysis I do not think that the opinions, interesting as they are, tendered by the various witnesses on both sides of the argument materially affect or take away from the interpretation or opinion which the Court itself is required to form on the basis of the actual text and narrative contained in those materials when objectively examined by it.

44. As substantive elements of the text of the materials in issue are extensively referred to in the judgment of the Chief Justice, and in those of my colleagues Fennelly, J. and O'Donnell, J., I do not propose to engage in further extensive recitations from the material. It may be said, however, that the material as a whole is characterised by four statements or slogans:

      ? Protecting children

      ? Supporting families

      ? Removing inequalities in adoption

      ? Recognising children in their own right

45. These slogans lead the presentation of the material both in the booklet published by the respondent and on the website established and maintained by her department. For example, they are to be found on the cover of the booklet and highlighted in response to a question posed therein " What is proposed in this referendum?"

46. There is a considerable amount of the narrative in the texts devoted to explaining why these statements or slogans characterise the nature and purpose of the amendment. They are presented in a way that clearly conveys that if one wishes to protect children or support families, and so on, one should support the referendum proposal, and, implicitly, that to vote against it would amount to a failure to support such objectives. Again, both the booklet and the website highlight at the outset the question " Why do we need a referendum?" conveying that there is no question but that a referendum to change the Constitution, with a positive outcome, is needed.

47. What seems clear to me from any objective examination of the published material is that it contains just one narrative. That is the narrative in support of a ‘yes' vote without expressly calling for a ‘yes' vote. The published material is replete with value judgments and references, both explicitly and implicitly, to desirable policy objectives which can only be properly achieved if the proposal to amend the Constitution is adopted.

48. As previously stated, it is not for the Court to pass judgment on the merits of any of the arguments or propositions contained in the material, but to determine whether it can be considered fair, equal and impartial.

49. No account is taken or expression given to the narrative of those who opposed the referendum such as those who claimed that a referendum was unnecessary, that it might compromise the protection of the family as enshrined in existing provisions of the Constitution, or disturbed the mutual rights of parents and children in a negative way.

50. None of this narrative is to be found in the material which has been called in question in these proceedings.

51. I agree with the analysis and the conclusions of my colleagues in relation to this material. As regards the images of children which have been used as a sort of logo throughout the material in question, I do not find it necessary to come to a separate or distinct conclusion. Images alone can undoubtedly be used to send a powerful message. Whether the attractive images of young children or the use of young children in advertisements conveys a clear message in favour of a yes vote is perhaps the one area in which the expert evidence, filed by way of affidavit, would be most useful. I would consider it necessary to address this question if the logo of the children was an isolated issue. But the use of representations and pictures of children cannot be separated from the textual material. Since that material itself is so clearly one-sided in its narrative of the matters which should be taken into account when deciding how to vote in the referendum, I do not consider it necessary to pronounce separately on the use of such images in that context.

52. It may be said the material is couched in restrained and measured language avoiding colourful or rhetorical exhortations. And, of course, nowhere does it expressly advocate a ‘yes' vote. Undoubtedly, as was argued, any reasoned explanation of the reasons for proposing an amendment to the Constitution will involve reference to the subject matter of the referendum, childrens rights, and how these will be enhanced. But the criticism is not so much with the presentation of the narrative, but that it is one-sided. As O'Flaherty, J. observed in the McKenna case " It is no answer to say, as has been said, that the advocacy … is gentle, bland and mild and is put forward in the context of making a fair effort on the Government's part to put all matters before the people; … nor, finally, is it any answer to say that it is either the entitlement or the "duty" of a Government so to educate the public. If the Government regards itself as having that right or duty, it must exercise it without resort to public funds ." Alternatively it must do so by ensuring that the " information " provided with public funds is not done so as to promote one side of the referendum campaign to the detriment of another.

Conclusion
53. It is manifest in my view that the website and booklet were drafted with a view to explaining why the proposed wording of the amendment was " designed to help with policy objectives ". For example, on page 14 of booklet it is pointed out that the new wording is aimed at helping to " achieve the following objectives " which are identified as being:

      (1) Dedicated Constitutional provisions for children;

      (2) Protecting children and supporting families;

      (3) Removing inequalities;

      (4) Adoption: A second chance for children;

      (5) Recognising children in their own right.

54. Objectively, presentations in the material of this nature can only be viewed as advocating support for the referendum proposal. Undoubtedly, these considerations were the basis on which it was decided that the particular proposal to amend the Constitution should be put to the people. It would seem that information explaining the underlying policy objectives was perceived as necessary if the electorate were to be fairly informed. If that were so, there was a misconception as to what was required by the McKenna case, namely, that fairness required impartiality and equal treatment when public funds are being used for this purpose.

55. Taking the material as a whole one is driven to the ineluctable conclusion that it advocated the case for a yes vote without explicitly calling for a yes vote. This was done, with the aid of public funds, to the disadvantage and detriment of those making the case for a ‘no' vote.

56. For the foregoing reasons, I agree with the decision of the Court handed down on the 8th November, 2012 that the material in question was not fair, equal or impartial.
JUDGMENT of Mr. Justice Fennelly delivered the 11th day of December 2012.

1. The appeal of the appellant in this matter came before the Court on 6th November 2012, a mere four days before the date of voting on the Children Referendum. It was essential for the Court to rule on the matter as a matter of great urgency. There was no time for considered judgments. This Court, therefore, in its ruling of 8th November 2012 granted a declaration that the respondents have acted wrongfully in expending or arranging to expend public moneys on the website, booklet and advertisements in relation to the Referendum on the Thirty First Amendment of the Constitution (Children) Bill, 2012, in a manner which was not fair, equal or impartial.

2. On 3rd October 2012, both Houses of the Oireachtas passed the Thirty First Amendment of the Constitution (Children) Bill, 2012. On 8th October, the Minister for Environment, Community and Local Government made an order under the Referendum Act 1994 appointing 10th November as the date for voting on the Children Referendum. On 19th September 2012, the same Minister established a Referendum Commission under the Referendum Act 1998. On 16th October 2012, the Referendum Commission launched its public information campaign and established its own website.

3. The relief granted by the Court on 8th November was in substance what was claimed by the appellant in his Plenary Summons issued on 19th October 2012.

4. In the statement of claim delivered on his behalf on 19th October 2012, the appellant gave the following particulars of what he claimed were the unconstitutional aspects of the contents of the website established by the first-named respondent, the Minister for Children and Youth Affairs (hereinafter "the Minister") as part of his information campaign for the referendum :

[Particulars in par. 14 of statement of claim]

5. The appellant caused a letter to be written to the Minister seeking information regarding the expenditure of public money. The Chief State Solicitor's Office replied on 19th October, 2012, stating that: the "material on the website is designed to be factual in nature and put the issues to public." The letter said: "There is no advocacy for a yes vote." The letter also informed the plaintiff that funds voted by the Oireachtas to the Department of Children and Youth Affairs for 2012 included €3 million in respect of expenditure of the children's rights referendum. Of this sum, the Minister had allocated €1.9 million to the Referendum Commission for the performance of its statutory functions. The balance of €1.1 million was being used by the Department of Children and Youth Affairs, as it was said, "to provide information on the referendum and encourage members of the public to vote." That letter sets the stage. The Minister was authorised to spend public money for the purpose of providing information, but not for advocacy.

6. On 22nd October 2012, the appellant issued a notice of motion returnable in the High Court for 23rd October in which he sought an interlocutory injunction restraining the respondents from expending public monies on websites or booklets promoting a particular result in the Children Referendum.

7. In his grounding affidavit, the appellant made complaints both about the website and the booklet said to constitute the "major information campaign" of the government in connection with the Children Referendum. He complained that the campaign was not confined to the neutral transmission of information but that it was designed and/or intended and/or likely to promote a particular outcome.

8. The appellant has never questioned the impartiality or objectivity of the public information campaign of the Referendum Commission. Nor does he make any objection to the respondents arguing for a Yes vote by means which did not involve the expenditure of public monies. He alleged that the government campaign, particularly the website and booklet, went well beyond merely insignificant or incidental expenditure.

9. When the application came on before the President on 30th October, it was agreed to treat the hearing of the motion as the trial of the action.

10. The learned President delivered his judgment ex tempore on 1st November. He noted the appellant's complaint that the government's information campaign was unconstitutional having regard to the status of a referendum under Article 46 of the Constitution and the views expressed by this Court in McKenna v. An Taoiseach (No. 2) [1995] 2 IR 10.

11. The learned President summarised the appellant's complaint about the website as being that that in its totality it leaned heavily towards supporting the referendum, and was designed and intended to influence voters by favouring a particular result. He noted the complaint that it placed an emotionalised emphasis on children with numerous child pictures and child handwriting: a large caption with the title ‘Vote' set out in child's handwriting, with an image of a smiling face depicted in the letter ‘O.' There was also a repeated slogan: "It's all about them… but its up to you"; and the logo design for the website shows an image of three children holding hands in a further emotional appeal.

12. He also noted a number of complaints concerning the booklet. For example, the appellant claimed that the booklet used ‘campaigning' type language on page 14, saying that: "the proposed new Article puts the safety and welfare of children at the centre of decision making in relation to child protection," which was said to be value-laden and imbued with a sense of the desirability of the amendment and not to communicate any specific factual information.

13. The learned President also referred to the evidence given on affidavit of a number of witnesses. The appellant had submitted affidavits from Mr John Waters, the well-known journalist, Ms Lyn Sheridan, a public relations consultant and Professor Colum Kenny, of Dublin City University.

14. The learned President observed that, since 1998, the Referendum Commission, had "discharged effectively and well its statutory function of promoting public awareness of the referendum, of encouraging the electorate to vote at the poll and of publishing statements containing a general explanation of the subject matter of the proposal." He added: "It operates with complete impartiality and enjoys high levels of public confidence……."

15. The learned President next summarised the decision of Costello J., pronounced in 1992, but reported as McKenna (No. 1) [1995] 2 I.R. 1, and referred to the judgments of Keane J in the High Court and of this Court in McKenna v. An Taoiseach (No. 2) [1995] 2 IR 10. It is particularly important to record that he took note of the care the Court took "to emphasise that before the courts will intervene in a political process, it must be "clearly established" that the Government has shown a "clear disregard" for constitutional rights." He proceeded to interpret his own role in the instant case in the light of those and a number of other judgments as follows:

      "That is the yardstick against which the material put out by the defendants in this case must be assessed. The breach complained of must be something blatant and egregious. It must be something which is to be seen or found in the presentation of the proposal and not be a matter which to quote counsel for the defendants, "mires" the court in assessing the merits of the substantive issues or in excessive scrutiny of each and every scrap of information disseminated by or on behalf of Government. Such an approach would place the courts in a situation where, having entered into this particular domain, they could be called upon in virtually every referendum to perform some exercise of hyper-zealous vigilance of every piece of information disseminated by Government. I cannot believe the Supreme Court in McKenna (No.2) intended any such consequence."
16. The learned President expressed himself "satisfied that scrupulous care has been taken to at least try to avoid falling foul of McKenna (No. 2) judgment in the information contained in the Government booklet and on its website." He took note of the consultation process embarked upon by the Minister and the advices sought from the office of the Attorney General to ensure that the Government could impart information in compliance with the McKenna principles. He refused the reliefs sought by the appellant. His conclusion on the matter was as follows:
      "Having considered all of the evidence and legal arguments put before me, I am satisfied that the campaign run by the defendants contains material which is neutral, balanced and has the primary aim of informing the public about the forthcoming referendum. I do not find that the defendant's campaign can be said to plainly favour a particular outcome so that it is unconstitutional or wrongful."
17. The appellant, in his appeal claims in substance that the learned President erred:
      1. in his application of the test of "clear disregard" of the Constitution by substituting a test higher than the balance of probabilities, in particular in holding that the breach must be "blatant and egregious;"

      2. in finding, on the evidence before the High Court, that the material did not advocate a particular outcome in the Children Referendum but that it was "neutral, balanced and has the primary aim of informing the public;"

      3. in failing to find that the respondents had not held the scales equally between the two sides in the Children Referendum;

      4. in failing to make findings on a number of the appellant's specific complaints.

The McKenna principles

18. It is of the first importance to emphasise from the outset that this Court has not been invited, by either party to the appeal, to reconsider, to set aside to any extent, to re-interpret, distinguish or to qualify the decision of the Court in McKenna v. An Taoiseach (No. 2), already cited. That decision must be taken to be a fully binding part of our law regarding the conduct of referendums pursuant to the Constitution.

19. Hamilton C.J., at page 41 explained the process for amendment of the Constitution as follows:

      "The role of the People in amending the Constitution cannot be overemphasized. It is solely their prerogative to amend any provision thereof by way of variation, addition or repeal or to refuse to amend. The decision is theirs and theirs alone.

      "Having regard to the importance of the Constitution as the fundamental law of the State and the crucial role of the People in the adoption and enactment thereof, any amendment thereof must be in accordance with the constitutional process and no interference with that process can be permitted because, as stated by Walsh J. in Crotty v. An Taoiseach [1987] "it is the people themselves who are the guardians of the Constitution".

      "As the guardians of the Constitution and in taking a direct role in government either by amending the Constitution or by refusing to amend, the People, by virtue of the democratic nature of the State enshrined in the Constitution, are entitled to be permitted to reach their decision free from unauthorised interference by any of the organs of State that they, the People, have created by the enactment of the Constitution.

      "The constitutional process to be followed in the amendment of the Constitution involves not only compliance with the provisions of Articles 46 and 47 of the Constitution and the terms of the Referendum Act, 1994, but also that regard be had for the constitutional rights of the citizens and the adoption of fair procedures.

      "The use by the Government of public funds to fund a campaign designed to influence the voters in favour of a "Yes" vote is an interference with the democratic process and the constitutional process for the amendment of the Constitution and infringes the concept of equality which is fundamental to the democratic nature of the State."

20. O'Flaherty J said at page 43:
      "I should think it bordering on the self-evident that in a democracy such as is enshrined in our Constitution (which is not exclusively a parliamentary democracy; it has elements of a plebiciary democracy) it is impermissible for the Government to spend public money in the course of a referendum campaign to benefit one side rather that the other."
21. Blayney stated at page 49:
      "……neither the provisions of the Constitution nor the provisions of the [Referendum] Act of 1994 envisage that the executive would have any role other than to submit the amendment to the decision of the People. No guidance is given as to how this role is to be carried out, but since it is a role imposed on the executive by the Constitution in connection with the very important constitutional right of the People, that is voting at a referendum, I am satisfied that constitutional justice requires that the executive should act fairly in discharging it, not favouring any section of the People at the expense of any other section. This would seem to be a minimum requirement for the discharge of any constitutional obligation. The people are entitled to be treated equally."
22. Denham J. (as she then was) said at page 53:
      "The spirit and concept of equality applies to the process of a referendum. There is a right to equal treatment in the political process. It is a breach of the concept and spirit of the constitutional right to equality for the Government to spend public monies in funding a campaign to advocate a specific result in a referendum."
At a later point she said:
      "Ireland is a democratic state. The citizen is entitled under the Constitution to a democratic process. The citizen is entitled to a democracy free from governmental intercession with the process, no matter how well intentioned. No branch of the government is entitled to use taxpayers' monies from the Central Fund to intercede with the democratic process either as to the voting process or as to the campaign prior to the vote."
23. The basic principle underlying these dicta is that of equal treatment. The government may not use public funds in a referendum campaign to "benefit one side rather than the other," (O'Flaherty J p. 43), "favouring any section of the People at the expense of any other section "(Blayney J, p. 49) "to advocate a specific result" (Denham J, p. 53.)

24. On the burden or level of proof required to establish that a particular government-funded campaign breached these principles, the Hamilton. C.J. referred to authority, including the judgment of Fitzgerald C.J. in Boland v An Taoiseach [1974] I.R. 338, referring to "clear disregard by the Government of the powers and duties conferred on it by the Constitution." He described the relationship between the courts and the executive as follows at page 32:

      "1. The courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions provided that it acts within the restraints imposed by the Constitution on the exercise of such powers.

      2. If, however, the Government acts otherwise than in accordance with the provisions of the Constitution and in clear disregard thereof, the courts are not only entitled but obliged to intervene.

      3. The courts are only entitled to intervene if the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution.

      Having regard to the respect which each of the organs of government must pay to each other, I am satisfied that where it is alleged that either the Oireachtas or the Government has acted other than in accordance with the provisions of the Constitution, such fact must be clearly established."
25. The appellant must, therefore, discharge the burden which is on him by clearly establishing, as a matter of fact, that the Minister has acted in clear disregard of the restraints laid down in McKenna. While the Government or a particular Minister is perfectly entitled to advocate a particular outcome in a referendum, insofar as any campaign is paid for out of public funds, it is not permissible for the Government to favour a particular outcome.

26. It is accepted by the appellant that the Government is entitled to use public funds to provide necessary information to the People—and the respondents maintain that it's use of the voted funds was intended to do no more than that—but it is not permissible, under the guise of an information campaign to depart from the path of strict neutrality.

The website

27. The website, opened and operated on behalf of the Minister, at the address www.childrensreferendum.ie, had a home page entitled "Children's Referendum," headed by the statement: "Voting Day: Saturday, 10th November 2012." On the home page, there were some ten pages that could be opened. The headings or names of these pages were:

      • Why do we need this referendum?

      • What will change if the referendum is passed?

      • Thirty First amendment to the Constitution (linking to the text of the amendment);

      • Protecting Children;

      • Supporting Families;

      • Removing inequalities in adoption;

      • Recognising children in their own right;

      • Programme of Change for Children;

      • FAQs: Frequently asked questions on the Children's Referendum.

      • Fact Sheets.

30. The following are representative passages. They are a sufficient to demonstrate the general thrust and direction of the content of the website. I quote some of the text under each of the above headings.

Why do we need this referendum?

      "Our Constitution is the foundation for all the State's laws and policies. However it does not provide an express statement of rights for children.

      "The Government is bringing forward this Referendum to give the Irish People the opportunity to change this. This Referendum will give people the option of updating the Constitution to reflect our shared value in relation to ensuring the protection of all our children. The proposed Amendment is intended to give firmer recognition to the rights of children under the Constitution and to affirm the State's obligation , as far as practicable, to protect those rights.

      ………………………………………………………………….

      "Passing this Referendum will put children's needs at the centre of decision-making and will facilitate changes to adoption legislation."

What will change if the referendum is passed?
      "This Referendum proposes to place a dedicated Article in the Constitution which has children as its central focus.

      "This Referendum is about strengthening the Constitution:

      • To provide that the rights and protections set out in this new Article should apply equally to all children, regardless of the marital status of their parents;

      • To protect children from abuse and neglect;

      • To recognise children in their own right.

………………………………………….

Protecting Children

      "For children at risk, this Referendum seeks to ensure that they are protected from harm.

      "It sets out when and how intervention should occur, with the focus on the child, and referring to the impact of parental failure on the child's safety and welfare, rather than solely on such failure and the reasons for it.

      "Overall, Article 42A focuses on the protection afforded to children under the Constitution, while respecting and preserving the rights of parents and the family."
Supporting Families
      "The amendment will require State intervention in the family to be proportionate."

      ……………………………………………………………..

Removing inequalities in adoption
      " On the passing of this Referendum a clear standard will apply across areas of law relating to child welfare and protection and family law that the rights and protections set out are to be enjoyed by all children, irrespective of the marital status of their parents."
Recognising children in their own right
      "It will mean that provision is made by law, that in the resolution of all proceedings concerning the protection and welfare, adoption, guardianship, custody, and access in respect of any child, the best interests of the child shall be the paramount consideration.

      "This Referendum proposes to change our Constitution to include a standalone article (Article 42A) on ‘ Children,' is thus providing a strong affirmation of each individual child is inherent rights, while continuing to respect and preserve the rights of the family, as set out in the existing Article 41.

      "This Referendum also proposes, for the first time to give Constitutional recognition to the best interests and views of the child in court cases affecting their life.

      "This Referendum, if passed, will mean that provision May be made by law to ensure that in the resolution of all proceedings concerning the protection and welfare, adoption, guardianship, custody, and access in respect of any child that:

      • the paramount consideration is the best interests of the child.

      • the views and wishes of the child should be taken into account, as long as the child is sufficiently mature to make this appropriate."

31. Under the FAQs heading, the website offers answers to a number of general questions and repeats much of the material already quoted. I will refer to only two of these.

32. The website poses the question: "What will it change?" It proposes the following answer:

      "The changes that would be brought about by the proposed Constitutional Amendment include the following:

• the provision of express rights for all children;

• strengthening of protections for children where parents are failing in their duties towards them;

• the removal of inequalities in adoption between children on the basis of the marital status of their parents

• strengthening of the principles of best interests and consideration of the views of children in child care, adoption and family law proceedings."

33. The website also poses the question: "Don't children already have rights under the Constitution?" It provides the following answer:

      "While all citizens have rights, that Constitution does not currently provide an express statement of rights for children. The proposed amendment provides a strong affirmation of each individual child is in here and rights and a clear statement that children's rights need to be protected and vindicated; while continuing to respect and preserve the rights of the family as set out in the existing article 41."
The booklet

34. The booklet was circulated shortly after the opening of the website. The letter of 19th October 2012 from the Chief State Solicitor said it would be circulated either on that day on the following Monday.

35. The booklet largely repeats the material on the website, if sometimes, in different language. It will suffice to refer to the answer to the question: "Why this particular Referendum?" It is as follows:

      "Our Constitution is the foundation for all the State's laws and policies.
However, it does not provide a separate statement of rights for children.

The Government is bringing forward this Referendum to give the Irish people the opportunity to make a decision on this matter. The proposed amendment is intended to give recognition to the rights of children under the Constitution and to affirm the States obligation, as far as practicable to protect those rights.

The Referendum is intended to put children's needs at the centre of decision-making and to facilitate changes to adoption legislation."

The booklet contained a clear significant error amounting to a misstatement of the effect of the referendum proposal. The Chief Justice and O'Donnell J. have explained this matter and its significance.

Other evidence

36. The plaintiff's own grounding affidavits were supported by the affidavits of three independent witnesses. Mr John Waters, the well-known journalist swore that the website was "designed to put in a particular point of view in relation to the amendment, which is to say that it impliedly endorses a Yes vote and offers no sense or a hint that there may be significant or weighty contrary arguments are objections to the amendment or its wording." His opinion was that both the website and the booklet were "riddled with value judgements, emotional and irrelevant material, one-sided presentation, omission of important balancing context, minimising or omission of difficulties and real problems of interpretation." Ms Lyn Sheridan, an expert in Public Relations, expressed, as her professional opinion, the broad view that both the referendum and the booklet were "partial, unbalanced and persuasive of a ‘Yes' vote." Dr. Colum Kenny, Professor of Communications at Dublin City University, was of the opinion that the documents "not only provide certain objective information to the public about that proposed amendment to the Constitution of Ireland but also support the case in favour of people voting YES in a referendum……."

37. Mr Gerald Angley, First Secretary of the Department of Foreign Affairs and Trade said that he had been temporarily assigned to the Department of Children and Youth Affairs to assist with referendum arrangements. He had experience with the Stability Treaty Referendum in May 2012, which he described. He found that the Department was "conscious of the legal environment including McKenna." While Mr Angley did not consider that the information disseminated by the Department was biased or that it advocated a particular outcome, he thought it necessary for the government to "ensure full information is available to the public on not just the constitutional amendment itself but the policy issue around it." He added: "The government is uniquely positioned to explain the wider policy context and in my opinion has a duty to do so as I see it off the referendum in the first place."

38. Ms Elizabeth Canavan, Assistant Secretary General of the Department Children and Youth Affairs swore an affidavit in which she provided a comprehensive and detailed account of the management of the referendum process from the point of view of her Department. She traces the background to the referendum by reference to many reports by eminent public persons and bodies going back as far as the year 1993. She describes research into behaviour and attitudes conducted at the behest of the Department and the engagement of a public relations firm to assist in the work. She identified "the need for information to be made available to the public to ensure that decisions regarding the proposed amendment would be as informed as possible and to deal with some of the issues identified as most clear to the general public and of most concern to them."

39. Ms Canavan said that the Department had been "attentive to, and at all times mindful of the provisions of law and the Constitution and specifically the jurisprudence relating to the non-use of public resources to advocate a particular outcome in the context of a Referendum."

40. She said that the Department had worked closely with the Office of the Attorney General. She made several references to involvement of that office: a full briefing by the Attorney General's office was provided to senior staff, the public relations firm and the Minister's advisers on 1st August 2012. On 3rd of October 2012 the Department sent a circular letter to all departments concerning the "implications of the McKenna case." It referred to the previous legal advice from the Office of the Attorney General which it outlined as follows:

"During the referendum campaign period, the Government has a right and duty to give information, to clarify situations, or to give explanations and deal with unforeseen matters and emergencies. However, the Government is not entitled to expend public monies for the purpose of promoting a campaign for a particular outcome."

41. Ms Canavan described the preparation of materials for the website and for the booklet and referred to observance of a "Public Communications Protocol." That document lays down procedures for the circulation of a wide range of publicity material, namely "press queries, articles, broadcast, twitter, events, etc" and to press releases and speeches. It does not refer either to the website or to the booklet which were, apparently, yet to be prepared. The AGO (presumably, the Attorney General's Office) was to be included in the clearance "if required."

42. Ms Canavan says, in her affidavit, that this protocol was followed, "always completing the cycle with sign off from the Department's legal adviser and The Office of the Attorney General having regard to accuracy and the McKenna Judgement and by the Assistant Secretary." In the case of the booklet she says that a "final version was prepared for consideration of legal advisors." She adds: "Following detailed feedback from the legal side (including the Office of the Attorney General) a final draft was agreed as appropriate. This was signed off at Assistant Secretary level and provided to printers for layout and print."

43. It is notable that this account, at no point, alleges that the website or the booklet was actually reviewed and approved by the Office of the Attorney General. The advice of that office, as very briefly summarised in the form of two brief sentences, seems correct and in accordance with the McKenna judgment. The first sentence refers to the right of the Government to give information, to clarify situations or to give explanations. The second emphasises that the government is not entitled to expend public monies for the purpose of promoting a particular outcome.

44. The respondents provided two affidavits sworn by eminent experts in political science with specialties in the area of the effects of political campaigns on the outcome of elections or referendums. Each had been asked to evaluate the website and the booklet for political neutrality. Each was fully aware of the principles of the McKenna case.

45. Dr Eoin O'Malley, lecturer in Political Science at the School of Law and Government, Dublin City University has written extensively on the electoral effects of political campaigns. In a wide-ranging consideration of the issues he made the following comments:

      • in giving information about the wide-ranging legislative proposal with complex social effects one must necessarily base it upon the stated rationale for that proposal;

      • if one cannot articulate the rationale of legislation then one can only restate the content;

      • it is not possible for the sponsor of legislation to remove the natural and intrinsic features of the subject of the legislation;

      • it is not reasonable to expect the sponsor to actively sterilise the subject;

      • in the present instance, it is difficult and in some respects impossible to present the proposed amendment free of its inherent attractions;

46. He thus reached the conclusion that:
      "In my opinion the predominant and overall impression created by the website and leaflet is that of explanation of context and the project of the amendment. If one is attracted to this, it is because of the substantive factual merits disclosed and the fact that children are the recipients. I do not see that the presentation is responsible for such an attraction or materially influences the reader.
47. Dr. Richard Sinnott, Emeritus Professor of Political Science, of the School of Politics and International Relations, University College Dublin, a renowned writer and commentator on the subject also provided an affidavit. His general comments included the following:
      • "It is an unreasonable if not impossible requirement that the preparation of a publication in the present context would attempt to render the document entirely devoid of any normative reference… the only real and practical test is one of broad fairness : has the publication in general followed a reasonably informative line, bearing in mind the nature of the subject;

      • "The Plaintiff appears to argue that the closer an ostensibly neutral publication resembles one side of the vote, then the less neutral it is. This is a fallacy. The test of neutrality must I believe be primarily based on what a publication expressly professes taking into account a commonsense view of the context."

48. Dr. Sinnott's conclusion was:

      "I do not believe that either the Department's booklet or website show signs of being intended or having the effect of guiding or swinging voter response as a result of substance or presentation, or to the extent that this conclusion might be debated, certainly not to any extent that could be reasonably avoided in the creation of the materials in question or could be confidently said to be likely to arise."
49. Dr Kevin Rafter, lecturer in Political Communication and journalism at Dublin City University, a former journalist of wide experience reviewed the website and booklet and made a number of criticisms, many of them on grounds of quality. The nearest he came to expressing an opinion on the issue of neutrality of content was a statement that:
      "I find it hard to believe that a serious argument could be made that this design and tone was agreed with the intention of persuading people to vote "yes" in the referendum campaign."
He thought the text of the booklet to be "an honest attempt at information provision in the context of a complicated referendum campaign."

The appeal

50. The appellant's case is founded on the proposition that the Constitution, as interpreted by this Court in the McKenna judgment, prevents the State from spending public money voted by the Oireachtas so as to favour one side over the other in a referendum campaign.

51. The issue before the Court on the present appeal arises in a context different from McKenna. In that case, of course, public money had been voted by Dáil Eireann, as the headnote to the report records, explicitly for the purpose of use in a publicity campaign to encourage a "Yes" vote in the referendum proposing the removal of the constitutional prohibition on divorce. The Court did not need to consider whether the actual material was designed to favour a particular result and did not do so. McKenna does not lay down any criteria for judgment as to whether a particular government campaign infringes the limits laid down in the judgments.

52. The sum of €1.1 million allocated for use by the Department of Children and Youth Affairs in the present case was intended to be used "to provide information on the referendum and encourage members of the public to vote." This money was not provided for the declared purpose of favouring one side. The question is whether information campaign so funded does in fact advocate a particular result in the referendum.

53. Since the Department's information campaign is funded from public monies, the only question is whether it does in fact favour one side in the campaign. Counsel for the appellant submitted that the campaign, if it was to qualify as an information campaign, had to be fair, equal and impartial. I did not understand counsel for the Minister to demur from that proposed test.

54. Counsel for the appellant next submitted that the onus of proof, which the appellant had to discharge, was in accordance with the balance of probabilities. He referred to the judgment of Barrington J in Hanafin v Minister for the Environment [1996] 2 IR 321 at page 457. What the appellant had to show was "clear disregard" by the State of the limits imposed by the Constitution. While this was the test cited by the learned President by reference to McKenna, he had fallen into error by restating "the yardstick against which the material put out by the defendants in this case must be assessed," as requiring the appellant to show that the "breach complained of [had to] be something blatant and egregious."

55. Counsel submitted that the Court should look at and evaluate the material itself and that it did not require the assistance of the expert witnesses. He argued that the website and the booklet was full of value judgments and slogans and that it used language amounting to open advocacy of a "yes" vote.

56. Counsel for the respondents did not dispute the authority of McKenna. He said that the burden of proof was to show on the balance of probabilities that the State had acted in clear disregard of the Constitution. As to whether the material was, in fact, fair, equal and impartial, must be tested by a reasonable and fair assessment. Children and their protection are the subject of the referendum. The government was entitled provide a public information service which amounted to an objectively fair presentation of the principal issues. The core of McKenna, counsel maintained, is that it prohibits a declared or unequivocal exhortation to vote in a particular way.

57. Counsel also invoked the inescapable normative values of the subject-matter of the referendum. Nothing can be exactly balanced. The test should be by analogy with the Wednesbury criterion, having regard to the subject-matter and to the need for the Court to avoid becoming involved in matters of political judgment. Certain subjects carry with them an inherent element of value judgement.

Conclusion

58. There is no difficulty in discerning the test which the courts apply in considering whether the State has exceeded the limits laid upon it if it is to respect the principle of neutrality in the referendum process. In common with the Chief Justice and O'Donnell J in the judgments they are delivering today, I am satisfied that the plaintiff must be able to demonstrate that the State has acted in clear disregard of its obligations. As the Chief Justice says, it is an objective test. The intention of the relevant State authority is not relevant. The test of clear disregard has been adopted by the Court in a number of cases as a guide to the circumstances in which the courts may intervene to restrain acts of the governmental organ of the State: see, for example, T.D. & Ors v The Minister for Education & Ors [2001] 4 I.R. 260, especially per Murray J at pages 336 to 337; Curtin v. Dáil Eireann [2006] 2 IR 556. More pertinently, it was adopted in the judgment of Hamilton C.J. in McKenna(No. 2), already cited:

      "The courts are only entitled to intervene if the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution."
59. Proof is to be on the balance of probabilities. The learned President, however, held that the "breach complained of must be something blatant and egregious."

60. The President was legitimately concerned at the possibility that the courts could become involved "in assessing the merits of the substantive issues or in excessive scrutiny of each and every scrap of information disseminated by or on behalf of Government." However, a test requiring that a breach must be shown to be something "blatant and egregious" would set a new and higher standard than that of clear disregard. It is not the standard set by Hamilton C.J. in McKenna and in a line of cases, such as Boland v An Taoiseach [1974] 1 I.R. 338. In that case, Fitzgerald C.J. said at page 362:

      "…the Courts have no power, express or implied, to supervise or intervene with the exercise by the Government of its executive functions, unless the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred upon it by the Constitution."
61. The court can, by proper application of that test, avoid the traps feared by the learned President of involving itself in the judgment of political arguments or engaging in excessive scrutiny of every scrap of government information. I share the concerns expressed by the learned President. It would be most undesirable that the courts should be "called upon in virtually every referendum to perform some exercise of hyper-zealous vigilance of every piece of information disseminated by Government." As the Chief Justice says in her judgment, it is not necessary for the Court to conduct a punctilious examination of minutiae or to nit pick through every last detail. Such a judicial practice could equally pose a danger in future for the effective working of the Referendum Commission, which must be permitted to perform its task of assisting the people in making their voting choices, free of the threat of impending and costly litigation. Contentious litigation would not be conducive to the fair conduct of the referendum campaign and would risk distracting voters from objective consideration of the issues.

62. The question on this appeal is whether the website and/or the booklet are in their general tenor fair, equal and impartial or whether they tend to favour a "Yes" vote.

63. The website commences by asking the question: "Why do we need this referendum?" From the very outset, the material tends in one direction. It proposes to offer justification for holding the referendum. It does not ask the more neutral question: do we need this referendum? Thus, the stage is set for points to be made only in favour of the need for the referendum. The answering material suggests that the Constitution is somehow deficient in failing to contain "an express statement of rights for children" and that the referendum proposal will "give people the option of updating the Constitution to reflect our shared value in relation to ensuring the protection of all our children" and that it will "give firmer recognition to the rights of children…" This answer ends with the statement:

      "Passing this Referendum will put children's needs at the centre of decision-making and will facilitate changes to adoption legislation."
64. These statements all point unequivocally in the direction of a "yes" vote. They are not mere information. They suggest that the Constitution will be improved by the provision of an express article designed to protect children. They do not make the point that children are already, like everyone else, protected by the Constitution.

65. Under the next heading concerning "what will change if the referendum is passed," the reader is told of the proposal to "place a dedicated Article in the Constitution which has children as its central focus" and that the "referendum is about strengthening the Constitution.

66. Under the heading, "protecting children," the website says that, so far as children at risk are concerned, the referendum "seeks to ensure that they are protected from harm." It ends with the unmistakeably positive statement that:

      "Overall, Article 42A focuses on the protection afforded to children under the Constitution, while respecting and preserving the rights of parents and the family."
67. Under the FAQ which poses the question about what the referendum will change, the following very general answer is given:
      "The changes that would be brought about by the proposed Constitutional Amendment include the following:

      • the provision of express rights for all children;

      • strengthening of protections for children where parents are failing in their duties towards them;

      • the removal of inequalities in adoption between children on the basis of the marital status of their parents

      • strengthening of the principles of best interests and consideration of the views of children in child care, adoption and family law proceedings."

68. These again are all unequivocally positive points in favour of the referendum proposal. The Constitution is to be "strengthened." So also are the protections for children. The referendum is concerned to put the best interests of children at the heart of all decision-making.

69. It is patent, in my view, that the website and booklet were written with a view to providing support for the objectives of the referendum proposal. The material is not fair, equal or impartial. It is advocacy. It is compounded by the presence of a serious misstatement in the booklet of the effect of the referendum proposal. As explained by the Chief Justice and by O'Donnell J., this part of the booklet wrongly stated or implied that certain aspects of the referendum proposal consisted in a continuation of existing provisions. I have no doubt that this was all done bona fide and with consciousness that the decision in McKenna had to be respected. However, the work was carried out on a mistaken understanding of the need to be neutral. This is exemplified in the views of the two independent experts who gave evidence on affidavit for the State. Neither of them swore that the material was actually neutral. Dr O'Malley thought that the intrinsic subject-matter of the referendum proposal meant that mere "explanation of context and the project of the amendment" was such that a reader of the material would be attracted to it "because of the substantive factual merits disclosed and the fact that children are the recipients" and that the presentation was not responsible for that attraction..

70. Professor Sinnott was of the view that it was an "unreasonable if not impossible requirement that the preparation of a publication in the present context would attempt to render the document entirely devoid of any normative reference." He did not find evidence of an intention to influence voters, adding the rider: "certainly not to any extent that could be reasonably avoided in the creation of the materials in question."

28. In my view the campaign for the referendum conducted by the Minister under the guise of an information campaign was not fair neutral and impartial and its conduct amounted to clear disregard of the limits on the acts the State may perform during a campaign concerning a proposal to amend the Constitution. It is not equal or impartial. It is imbued throughout with value judgments, with positive statements about the several aspects of the referendum proposals. I share the reluctance of the learned President to pass judgment on statements made by responsible actors in the political domain; this should not be the business of the courts. I reach this conclusion with reluctance. I would not pass judgment based on an occasional or stray partisan twist or refined analysis of individual statements. The striking feature in the present case is the one-sided tendency of the campaign when viewed as a whole. Since it was funded from public monies and was not permitted in accordance with the principles laid down by this Court in McKenna v. An Taoiseach (No. 2) [1995] 2 IR 10. These are my reasons for agreeing with the decision of the Court to grant the declaration already made.
Judgment of Mr. Justice O'Donnell delivered the 11th day of December 2012

1 Although this case occupied these courts over a period of just over a week in November of 2012 during the campaign on the 31st amendment to the Constitution ("The Children's Referendum") its roots go back almost 17 years to an earlier and more controversial referendum. The 24th of November 1995 was the date set for the Referendum on the proposal to remove the constitutional ban on divorce from the Constitution. The Government of the day had decided to do two things: first, to provide factual information in a balanced way in relation to the proposal; and second, and controversially, to spend what was then IR£500,000 promoting a positive result in the Referendum. Thus at the very outset a distinction was made (and was capable of being made by the Government) between neutral information impartially presented, and partisan advocacy. On the 27th of October 1995, the High Court (Keane J. as he then was) had commenced hearing an application for an injunction, brought by Patricia McKenna then an MEP, to restrain the use of public funds in the Referendum for the purposes of promoting a positive result. As is common in urgent matters the trial of the injunction application was, by consent, treated as the trial of the action. On the 31st of October Keane J. delivered an ex tempore judgment dismissing the claim. The plaintiff immediately appealed by a notice of appeal filed on the 2nd of November 1995. The appeal was heard on the 8th and 9th of November. A further eight days later, the Supreme Court delivered five separate judgments upholding the plaintiff's claim by a majority of four (Hamilton C.J., O'Flaherty, Blayney, and Denham JJ.) to one (Egan J.): McKenna v. An Taoiseach (No.2) [1995] 2 I.R.10 (" McKenna No.2 "). The fact that the case had to be heard and the decision required to be rendered during the process of a hotly contested referendum campaign was undoubtedly dramatic and led indeed to an unsuccessful attempt to overturn the outcome of the Referendum ( Hanafin v. The Minister for the Environment and others [1996] 2 IR 321) and a challenge to the broadcasting policy employed during that campaign ( Coughlan v. The Broadcasting Complaints Commission and others [2000] 3 I.R.1).

2 A necessary part of the presentation of most cases involves time for preparation, the obtaining of discovery, consideration of documentation, the marshalling of evidence both factual and expert in the light of that evidence, the exchange of reports, the oral presentation of that evidence, and cross-examination which has the benefit of rigorous preparation. There are of course cases where events will simply not permit even a compressed timescale for preparation because justice demands that a decision be rendered almost immediately, and in such cases the courts are obliged to make the best they can of the limited materials that are available. Often the best a court can do is to seek to resolve the major issues in dispute which have given rise to the litigation, as best it can.

3 The decision of the Supreme Court in the McKenna No.2 case is well known. It is one of those few decisions which are recognisable by name and referred to in public discussion. It would be idle to pretend that it has not attracted some critical comment, although much of the commentary (such as it is) seems to emanate from the fields of politics, and general commentary, rather than from legal analysis, and seems to address the question whether the outcome of the McKenna No.2 case is a desirable one from an administrative perspective, rather than whether it follows from the Constitution. The first question is not a matter for this or any other court: the second question simply did not arise in this case. In this regard I gratefully adopt the observations of Fennelly J. at paragraph 18 of his judgment: "It is of the first importance to emphasise from the outset that this Court has not been invited, by either party to the appeal to reconsider, to set aside to any extent, to re-interpret, distinguish or to qualify the decision of the Court in McKenna v. An Taoiseach ."

4 In the aftermath of the McKenna No.2 decision the opportunity was taken, wisely, of formalising the information provision function through the mechanism of the Referendum Commission established in 1998. Initially the Commission was charged with providing a statement of the case on both sides of the argument, in the same fashion as the uncontroversial and balanced information campaign conducted by the Government in The Divorce Referendum. In 2001 that requirement was removed. In every subsequent referendum, a Referendum Commission has provided neutral information and statement of the issues the subject matter of the Referendum. The Commission is chaired by a judge or a retired judge. Its composition is defined by statute. It normally proceeds by retaining advice, publishing a comprehensive booklet, engaging in an advertising campaign, and conducting information sessions. In carrying out its functions the Commission is of course subject to the McKenna No.2 decision. No complaint has been made about the performance of the Referendum Commission in respect of the Children's Referendum.

5 In the run up to the campaign on the Children's Referendum, it appears that the Government decided to conduct an information delivery campaign in parallel to the Referendum Commission's performance of its functions. This had been a step taken to some degree and without challenge in the immediately preceding Referendum concerning the adoption of the fiscal treaty, but was undertaken here on a more substantial scale. Thus, of the €3.0 million fund for the purpose of the Referendum, €1.9 million was provided to the Referendum Commission, and €1.1 million allocated to the Government's information campaign. It appears that the bulk of this latter sum was spent on obtaining public relations advice, and devising a campaign which involved the establishment of a website, the publication and delivery of a booklet, and the purchase of advertisements.

6 On the 8th of October 2012 the Minister for the Environment fixed the 10th of November 2012 as the polling date for the Children's Referendum. The Referendum Commission, which had only recently been established, published an information booklet on the 16th of October 2012. The Government, also through the agency of the first named respondent, embarked upon its own information campaign. The plaintiff, Mr. Mark McCrystal, became concerned about the information campaign having called upon the first named respondents to cease the campaign without success and he commenced proceedings, almost immediately, on the 18th of October 2012. Those proceedings were dealt with in the High Court with considerable speed. Once again the trial of the injunction application was treated as the trial of the action. On the 1st of November the President of the High Court rejected the plaintiff's claim and delivered a judgment prepared overnight, for the purposes of facilitating an appeal. This appeal was heard on the 6th of November, and the following day. In view of the imminence of the Referendum, the Court announced its decision to allow the plaintiff's appeal. I now set out my reasons for concurring in that decision.

The Information Campaign
7 In general, the information campaign conducted on behalf of the Department of Children and Youth Affairs, consisted of three elements: a website, a booklet to be distributed to all households, and some television and radio adverts. They were, and were intended to be, linked both in theme and content. The website was established first. The booklet was completed after these proceedings were threatened and it was noticeably less forthright than the website. It is to be inferred perhaps that the material in the booklet was toned down in light of the possible challenge. The advertisements had less content again and did little more than use affecting voices of children of varying ages to repeat the message that "It's All About Them But It's Up To You". For present purposes the website material is undoubtedly the most important. If, as the defendants contended, this material was consistent with the McKenna No.2 judgment, then it was unlikely that the booklet or the advertisements whether separately or collectively, could tip the balance.

The Website and its Content
8 The website home page was entitled "childrensreferendum.ie". It is true that on the bottom right hand side of the page there was a stylised harp logo and the words "Department of Children and Youth Affairs". Nevertheless it is, I think, fair to say that the website material did not by any means emphasise its source as the promoting Government department, nor was there any cross reference or link to the Referendum Commission, or indeed any mention of the existence or function of that body. The heading on the home page of "Children's Referendum" included an image in silhouette of three young children holding hands. The page also contained a picture of the Minister for Children and Youth Affairs with young children. At the top centre of the page there was a box headed "Why do we need this referendum?" and below it another box headed "What will change if the referendum is passed?". The text in the box under the heading "Why do we need this referendum?" was as follows:

      "The Referendum forms an essential part of the Government's child protection reforms as well as seeking to address existing inequalities in adoption."
The text under the heading "What will change if the referendum is passed?" was:
      "This referendum is about protecting children, supporting families, reducing inequalities in adoption and recognising children in their own right."
This latter formulation was reproduced in boxes running down the left hand side of the page with the separate headings of "Protecting Children", "Supporting Families", "Removing inequalities in adoption" and "Recognising children in their own right". Each of these individual boxes, and the boxes "Why do we need this referendum?" and "What will change if the referendum is passed?" permitted the viewer to click through and obtain more material on that topic. The home page also contained a link to a "FAQs" section, and also fact sheets which could be accessed on adoption, foster care and the history of the Children's Referendum.

9 For reasons for which I hope will become apparent, I believe it is unnecessary to analyse the information contained on the website, in the booklet and in the advertisements in exhaustive detail. In particular in relation the website, I consider that two things would become readily apparent to anyone who scrutinised the material. First, it was clearly presented in a fashion which favoured passage of the Referendum. Second, it could not readily be described as factual information. I do not think that any fair-minded reader would consider the content either neutral or impartial on the question of the Referendum. Nor indeed did the defendants strenuously contend that it was: the main thrust of the defence was to argue that strict impartiality was neither required nor possible, and that the material was not so tendentious as to infringe the test in McKenna No.2 as interpreted by them.

10 The question "Why do we need this referendum?" might prompt a pedantic but correct reply, that it is the only method of changing the Constitution to include the proposed provisions. But the answer given by the website was, as previously cited;

      "This referendum forms an essential part of the government's child protection reform as well as seeking to address inequalities in adoption."
Apart from the fact that this response more naturally answers a rather different question: why do we need to pass this referendum?, the text certainly suggests that without passage of the Referendum desirable child protection measures cannot be taken. The answer to the question "What will change if the referendum is passed?" is clearly to set out broad themes and to link to the boxes on the left hand side of the page, all of which clearly painted the proposal in a positive light. The protection of children, the support of families, the removal of inequalities and the recognition of children in their own right, are all matters that would normally be recognised as desirable objectives. It is hard to see how anyone who accepted that the Referendum achieved these objectives would consider voting against it. An advocate of a yes vote might well use language such as this, but I doubt very much that he or she would consider it was factual information rather than a statement of reasons to support the Referendum.

11 The box "Protecting Children" contained a link to further detailed text including the following:

      "Responding to abuse must be rooted in a simple premise, which the Referendum supports, that when there is clear evidence of abuse, or serious risk to the safety or welfare of children, child protection services must be able to act quickly and effectively."
This is powerfully suggestive that the passing of the Referendum would promote speedy and effective action for the protection of children in clear cases of abuse and serious risk, and seems to assume that the existing constitutional provision would inhibit such action. The text concluded with the following paragraph:
      "Passing this Referendum will become the fundamental backdrop for the Programme of Change for Children. As part of this ongoing programme, Government is bringing in new laws on the reporting of child abuse as well as reforming Ireland's child protection services, including separating them from the HSE, and establishing a dedicated new Child and Family Support Agency."
Not only does this suggest that passing the Referendum is desirable, indeed fundamental, but it appears to relate the passage of that Referendum to a series of matters which, while self-evidently desirable, were not clearly (or at all) connected to the Referendum proposal.

12 The section on "Supporting Families" related to what was obviously a contentious issue during the Referendum debate. Persons opposed to the amendment argued that it undermined the position of families. Some of those supporting the amendment contended that the protection afforded by the existing Constitutional provisions to families inhibited effective child protection in cases where, it might be said, the families did not deserve or merit such protection or support. However, it was suggested by the website that the Referendum was about "Supporting Families". That text contained the following passage:

      "In many cases where families are in trouble, early intervention of family support services could play a role in preventing more serious problems arising, and avoid the need for children to be taken into care at a later stage.

      Protecting children and supporting families are simply two sides of the one coin. This is a concept recognised right throughout our Programme for Change for Children and ties much of it together."

This passage clearly favours passage of the Referendum and in a manner which could not be described as imparting factual information. Instead it seeks to neutralise, if not positively appropriate for the Yes side, an argument marshalled against the proposal. A related heading is "Standing Up For Parents". This stated:
      "In response to concerns from parents, the Minster for Children and Youth Affairs approached Retail Ireland and invited them to draft responsible retailing guidelines on the sale of childrenswear. The Minister published these voluntary guidelines this summer. They address increasing concerns over the sexualisation of children and childhoods, and will play an important and constructive role in informing future decision-making by retailers."
While this might properly be considered information, it is hard to see how it relates to the amendment although clearly the implications of the heading and the context is to place it together with other desirable objectives such as "Strengthening Our Child Protection Laws" and "Implementing Long Needed Reform".

13 One of the frequently asked questions was "Why do we need this referendum?". The text then set out the response:

      "Our Constitution is the foundation for all the State's laws and policies. However, it does not provide an express statement of rights for children.

      The Government is bringing forward this Referendum to give the Irish People the opportunity to change this. This referendum will give people the option of updating the Constitution to reflect our shared value in relation to ensuring the protection of all our children."

The very formulation of the question is revealing. It simply assumes that the proposed change is necessary. It is something which "we" - the People of Ireland - need. The only question is why that is so. The response suggests that the existing text of the Constitution is out of date and does not reflect the shared value of the People in relation to ensuring the protection of all our children. This is a powerful statement in favour of the passage of the Referendum. Indeed, during the course of argument, counsel for the State parties was asked by a member of the Court whether, if the heading was recast to "Why do we need to vote yes?", it would be necessary to make any consequential change to the subsequent text. That is a useful, and revealing test. The entire text is as follows:
      "Our Constitution is the foundation for al the State's laws and policies. However, it does not provide an express statement of rights for children.

      The Government is bringing forward this Referendum to give the Irish People the opportunity to change this. This Referendum will give people the option of updating the Constitution to reflect our shared value in relation to ensuring the protection of all our children. The proposed Amendment is intended to give firmer recognition to the rights of children under the Constitution and to affirm the State's obligation, so far as practicable, to protect those rights.

      There have been seventeen major reports on child protection failings in Ireland since 1970. The Government now has a Programme for Change for Children and is bringing on new laws in the reporting of child abuse and safer practices for organisations, where children spend time, and is also reforming Ireland's child protection services by transferring them from the HSE and establishing a dedicated new Child and Family Support Agency. These reforms focus on intervention to ensure the safety and welfare of children is protected and to ensure that child protection services can respond appropriately to all child protection concerns.

      Passing this Referendum will put children's needs at the centre of decision-making and will facilitate changes to adoption legislation."

It seems clear that no change to the text would be necessary if the title were changed to "Why do we need to vote yes?".

14 The website concluded with a reference to the sponsoring minister, the Minister for Children and Youth Affairs, and her speech launching the website which recorded that the launch took place after the 31st Amendment of the Constitution (Children) Bill 2012 completed all stages of debate in the Oireachtas "with the full support of TDs and Senators." The Minister commented on the "wording agreed by the Oireachtas" as follows:

      "I would encourage everyone to read the wording on the information website www.childrensreferendum.ie. If you do, you will see that it is very clear in its objective. It's about treating all children equally, in particular by removing inequalities in adoption. It's about protecting children from abuse and neglect. It's about supporting families; and it's about recognising children in their own right".
These statements by the Minister leading the campaign for the adoption of the proposal clearly relate back to the themes established on the first page of the website. In my view, it is self-evident that these slogans are intended to present the Referendum in a positive light, and to encourage support for it. If there were any doubts about that however, then it is useful to consider the text of the Fine Gael website which of course, unambiguously called for a yes vote, as indeed it was fully entitled to do. It contained a speech by the same Minister on an occasion described as "the launch of Fine Gael's campaign for a Yes vote in the Children's Referendum" and therefore on an occasion of unequivocal support for passage of the Referendum. It is revealing how that speech, which was clearly and properly a forceful advocacy of a Yes vote, made repeated use of the same themes and slogans focussed upon in the website campaign:
      "Child protection concerns haven't suddenly gone away. The sad reality is they never probably will.

      But that doesn't mean we shouldn't do all we possibly can to protect children. That's why we should vote Yes on Saturday November 10th when, after 19 years of talk, the Children's Referendum is finally held.

      A Referendum which is about protecting children from abuse and neglect.

      It's about supporting families by re-affirming and underpinning early intervention in family support services, to protect children in their homes.

      It's about treating all children equally in particular by removing inequalities in adoption .

      It's about recognising children in their own right ." (Emphases added|)

The only difference between the message of this speech and that of the website is that this speech contains an explicit exhortation to vote yes, something the defendants regard as critical, and to which I will return. The Minister then returned to the theme:
      "But this Referendum matters.

      Because Every Child Matters.

      But they don't get to decide. We do. It is about them, but it's up to us ."

      (Emphasis added|)

That was a message repeated more than once during the speech, and is of course the theme of the advertising campaign. The speech therefore illustrates not only how compatible the website material was with the yes campaign, but also a significant blurring of the distinction between the Government's information campaign and the Yes campaign of the Government parties. Not only is this demonstrably not neutral, it is not in any real sense information, at least in the sense of factual information as discussed in McKenna No.2 . It is noteworthy that the Referendum Commission, seeking to perform the same task by the same constitutional standard, did not use language or presentation which was in any way similar in tone.

15 It was agreed by all parties that the booklet was similar in style and presentation to the website, but more neutral in its tone. It was finalised and issued after these proceedings were commenced. It did however contain one significant matter. In what was described as an "article by article guide " to the proposed amendment the booklet dealt with the replacement of Article 42.5 and said:

      "It will continue to be the case that the power given by the Constitution in this area can only be used by the State in very well-defined circumstances. Key requirements will continue to be as follows:

        • the State can only make use of the power "in exceptional cases" ;

        • a failure of parental duty towards the child must exist - "where the parents, regardless of their marital status, fail in their duty towards their children" ;

        • any failure must involve harm or risk to the child's safety or welfare - "to such extent that the safety or welfare of any of their children is likely to be prejudicially effected" ;

        • the actions of the State must be in balance with the harm or risk to the child that needs to be addressed- "by proportionate means" ; and

        • the actions the State can take must be set out in law - "as provided by law" ." (Emphasis added)

In fact there was a clear error in this statement. The bullet points set out components of the proposed new amendment. It was accordingly wrong to suggest that these were merely the maintenance or continuation of existing requirements. The error was pointed out by Mr. McCrystal in his affidavit of the 23rd of October. It was acknowledged as an error by the State on the first day of the hearing in the High Court but no steps were taken until the second day of the hearing in this Court to correct it. In the meantime booklets continued to be distributed to houses around the State. While the impact of any such mistake might well be debated, the attitude to it is revealing. If the booklet had been prepared on behalf of an independent body concerned with neutral delivery of factual information and with maintaining its reputation as an impartial provider of accurate information, it seems likely that the discovery of an error like this and its correction would have been a matter of much greater concern.

The Evidence
16 The plaintiff swore three affidavits on his own behalf. He also obtained affidavits from three witnesses with a significant range of expertise and views. The well known writer John Waters swore two affidavits. He freely admitted that he was opposed to the amendment and campaigned against it. However he also explained that he had 30 years experience of the media and in the field of communications and was familiar with many techniques of persuasion that are employed in public communications and the manner in which Government's use language in an attempt to persuade, as opposed to inform. While acknowledging his opposition to the amendment he said he was approaching his examination of analysis of the material not in terms of the merits of the amendment but solely in terms of the net issue of "whether the material represents a neutral and dispassionate conveying of the information or whether it is designed or likely to favour one side rather than other." He conducted a careful, detailed, and in my view illuminating, analysis of the passages in the website including those identified above. He considered the booklet more neutral but still favouring a yes vote, and considered that the advertisements involved the delivery of subliminal messages which were at least favourable. Of the advert he said the following:

      "The use of voices of children in the radio advertisement - in particular of Sara, who is "twee and a quatah" - certainly does not amount to "information", but more than that cannot but be seen as an attempt to manipulate the emotions of the public. The use of children's voices accompanied by the slogan "It's all about them, but it's up to you", suggests that the children of Ireland are imploring voters to help them, if not indeed to rescue them from some unspecified situation, implicitly a difficult one. The advert makes no attempt to deal with any of the issues relating to the amendment, but relies entirely on the emotive use of the children whose voices are heard."
17 An affidavit was sworn by Lyn Sheridan, a director of Aiken Public Relations Company in Belfast, Northern Ireland who has more than 20 years experience working on behalf of public and private sector clients. She emphasised that she had no role or involvement in the amendment and no particular position on it and no prior dealings with any of the parties to the proceedings. Having studied the Government's communication she said that she found the tone to be "partial unbalanced and persuasive of a "Yes" vote." In relation to the website she said that the links on the left hand side of the screen of the website; "Protecting Children", "Supporting Families", "Removing Inequalities from Adoption", were "all propositions supportive of the amendment rather than impartial factual information." She concluded that "The Government communication regarding the Referendum had the hallmarks of an integrated marketing campaign for which a brand had been carefully, deliberately and, I would expect, professionally devised and managed" and that had she as a PR practitioner been asked to prepare materials for a campaign in favour of a yes vote she would have prepared materials similar in content to those of the Government campaign.

18 Finally, Mr. McCrystal submitted an affidavit from Colm Kenny, a Professor of Communications in Dublin City University. For his part, he explained that he was personally in support of the amendment. Again he analysed the information in a careful and detailed way and concluded that "these information sources that were prepared by or for the Department of Children and Youth Affairs and that relate to the proposed Article 42A not only provide certain objective information to the public about that proposed amendment to the Constitution of Ireland but also support the case in favour of people voting YES in the Referendum on 10 November 2012." Collectively, these affidavits formed an impressive body of testimony. The conclusion which they all reach, that the style and tone of the material is that of persuasion rather than impartial dissemination of information, provides significant support for the plaintiff's case.

The Defendants' Evidence
19 The defendants relied on evidence from a number of different sources. Whether from the accident of the exchange of affidavits within a compressed time scale in an urgent application, or from design, or both, there was little direct engagement in these affidavits with the affidavits sworn on behalf of the plaintiff. There was no cross-examination of any of the deponents, and therefore the case was conducted at the level of rival assertions. In my view it is a striking feature of the defendants' affidavits that they did not engage with the detail of the materials of which complaint was made and instead made observations at a level of some generality and abstraction.

20 An affidavit was provided by Mr. Gerard Angley, a first secretary in the Department of Foreign Affairs, on secondment to the Department of Finance. He explained that the information campaign adopted in relation to the Children's Referendum had followed from the experience of the Stability Treaty Referendum. He observed that market research conducted in the aftermath of the two referenda held in October 2011 had indicated a public desire for more information from a variety of sources. That much is true, but the report itself did not suggest any demand for additional governmental information. On the contrary it reported that "voters were especially keen to hear from voices outside the political environment…". This witness had only been involved in the information campaign after the setting up of the website and during the preparation of the booklet. He expressed his general conclusion that he did not consider "the information disseminated by the Department to be biased or to advocate a particular outcome…".

21 The principal affidavit opposing the application was that of a Ms. Canavan, an assistant general secretary in the Department of Children and Youth Affairs with responsibility for the Referendum campaign. This affidavit set out in considerable detail the background to the decision to propose an amendment to the Constitution. She explained that particular attention was paid to the decision in McKenna No.2 , and exhibited a protocol which showed the route for initial approval of documentation which included an optional step of reference to the Office of the Attorney General "if required". She also exhibited a memorandum of instructions on the implication of the McKenna No.2 judgment that stated:

      "During the referendum campaign period, the Government has a right and duty to give information, to clarify situations, or to give explanations and deal with unforeseen matters and emergencies. However, the Government is not entitled to expend public monies for the purpose of promoting a campaign for a particular outcome."
This appears to be an attempted synthesis of the judgments in McKenna No.2 . Furthermore, the memorandum also offered advice as to use of the Government website. It advised that speeches and statements by Government ministers could be carried on the website "However, any passages in statements that advocate a Yes vote should be redacted." This memorandum illustrates the approach of the defendants to the implications of McKenna No.2 . Even though the importance of McKenna No.2 is what it precludes, primary emphasis in the memo is placed on what is considered permissible: a Government information campaign. What is prohibited is described as "promoting a campaign for a particular outcome" which is illustrated by the advice that statements which may otherwise strongly support the campaign for passage of the Referendum may be used on the Government website as long as the passage which specifically advocates a yes vote is redacted.

22 This is an interpretation of the McKenna No.2 judgment which is generous in its approach to the powers of Government during the Referendum and narrow in its reading of what is prohibited. In paragraph 72 of her affidavit, Ms. Canavan stated:

      "The phraseology of the information is a reflection of the context in which the need for the referendum arises and the express contents of the wording thereof. To the extent that the Plaintiff herein feels that the content and/or context of the referendum is in itself a positive affirmation thereof, that is to attack the wording and core factual purpose of the Referendum".
This passage illustrates the abstract and generalised way in which the defendants sought to account for the claims made by the plaintiff. It seems to be argued that the statements on the website and in the booklet and advertisements cannot be said to favour the governmental side. The proposal is a good thing and it cannot therefore be wrong to say so. This also reflects a line of thought found in other affidavits: because something can be said about the proposal and not be positively inaccurate, it cannot be impermissible. But this is surely to risk confusing accuracy with impartiality.

23 Ms. Canavan expressed her conclusion at paragraph 97 as follows:

      "It is believed to be a fundamental public duty and the entitlement of a Government department associated with the subject of any legislative change to publicise and explain the content, purpose and broader legal or social context of the change. In the context of the constitutional change proposed, I believe that the Department has undertaken this duty with conscientious attention to the prohibition against the funding of promotional material and, with the intention of informing the public of the subject in a way that satisfies the needs of clarity, simplicity and with an emphasis appropriate to the gravity of the issue. I believe that the complaints made by the plaintiff belong either to his private views or the debate on the substantive issue. His criticisms arise from such a subjective and intricate impression as to be unpredictable at the stage of composition of the Department's publications and are argumentative on review at this stage."
It should be said that the plaintiff made it clear that he was prepared to accept the Department had acted in good faith in preparing the campaign and did not challenge it on that ground.

24 In addition to these affidavits the defendants also relied upon an affidavit of Dr. Kevin Rafter, a lecturer in Dublin City University in political communications and journalism. Although from the same faculty as Professor Colm Kenny, and although his affidavit appears to have been sworn after that of Professor Kenny, it does not engage with that evidence or indeed mention its existence. Again, Dr. Rafter's evidence operates at a level of some generality. Dr. Rafter considered the tone of the website "low key" and thought the campaign subheadings "unimaginative" but considered that they did "align" with the Referendum wording and showed no significant or identifiable added value commentary beyond the line which is the proposal of the amendment itself. I interpret this to mean that if any statement can be related to an aspect of the proposal it is permissible. On this view since it can be said that the Referendum was about protecting children and supporting families, then it was not wrong for the Government to spend public funds saying so. Again, Dr Rafter sought to defend the material by a form of negative argument. He pointed out what the material did not do, and thereby illustrated what it appears he considered was prohibited. At paragraph 15 of his affidavit he stated:

      "There are no graphic images that could be described as being of a campaigning nature in terms of advocating one side of the referendum debate over another."
25 Finally, the defendants relied on affidavits from the discipline of political science. The first affidavit was that of the well known expert, Professor Richard Sinnott, Professor Emeritus of Political Science of the School of Politics and International Relations in University College Dublin. He stated that he had been retained by the Department to advise in the course of the Referendum. He explained that in his deliberations with the Department, adherence to the McKenna No.2 judgment was a key consideration and was very consciously to the fore in discussions with representatives of the Department. He offered the view that:-
      "…any discussion of human rights, in this case children's rights, has an inherently normative dimension. This dimension will almost certainly manifest itself in the course of the provision of information in this context even when the intention of the drafters of a document is confined to describing and explaining what the proposal is about. It is an unreasonable if not impossible requirement that the preparation of a publication in the present context would attempt to render the document entirely devoid of any normative reference."
Instead he suggested that the "only real and practical test is one of broad fairness: has the publication generally followed a reasonably informative line, bearing in mind the nature of the subject." He then compared the website with the websites of parties campaigning explicitly for a yes or no campaign and observed: "The Plaintiff appears to argue that the closer an ostensibly neutral publication resembles one side of the vote then the less neutral it is. This is a fallacy." At the level of theory this may be correct at least where the debate is self evidently all one way (although in such circumstances a €1.1 million public relations campaign might seem unnecessary) or one side of the debate has plainly misconceived the nature of the proposal, but at a more practical level where there exists a genuine dispute, and therefore a real need for neutral information, then the more a publication resembles one side of the debate the more it certainly risks being seen as not impartial. This rather theoretical argument does perhaps implicitly recognise that the Departmental publications did indeed resemble one side of the debate. Taking into account therefore, in his view, the difficulties of providing information while avoiding advocacy, and taking "a common sense view of the context" he concluded that while there were "four debatable points for objection" in the booklet, he did not believe either the booklet or website "shows signs of being intended or having the effect of guiding or swaying voter responses as a result of substance or presentation, or to the extent that this conclusion might be debated, certainly not to any extent that could be reasonably avoided in the creation of the materials in question or could be confidently said to be likely to arise." Again, it is noteworthy that Professor Sinnott does not engage directly with the criticisms made of the specific portions of the website referred to above and seeks to defend the departmental material by asserting the impossibility of avoiding normative statements and suggests that if a relaxed view is taken of the test, that the material is, in general, unobjectionable.

26 Dr Eoin O'Malley, a lecturer in political science in DCU took a somewhat different line. He seemed to suggest that it was impossible to provide truly neutral information, or at least for the proposer of any amendment to do so. He said; "If one is to give information about a proposal, and is restricted to just giving information then one almost inevitably must base it primarily on the rationale for the proposal." He then stated that "I believe it is important to recognise that it is not possible for the sponsor of legislation to remove the natural and intrinsic features of the subject of legislation." This sentence, which was referred to by the learned President of the High Court as candid and generous is, to me, somewhat puzzling. The words "for the sponsor of legislation" appears to imply some important qualification, but if it is possible for anyone to remove the "natural and intrinsic features" of the subject of legislation, it is not clear why that should be beyond the capacity of the sponsor. Self-evidently it is not beyond the capacity of the Referendum Commission. This passage seems to suggest that it is simply not possible to expect the sponsor of legislation, in this case the Department, to be neutral about it. This seems a dubious proposition not least because of the example given in McKenna No.2 , where in addition to the frank advocacy involved in the Government's campaign, the Government also provided funds for a factual information campaign which was balanced, and of which no complaint was made. But it is apparent that Dr. O'Malley like the other experts and opponents on behalf of the defendants, must adopt some significant qualification of the nature of the test, before seeking to assert with any plausibility that this information is or can be considered impartial. Thus, he continued;

      "It is not reasonable to expect the sponsor to actively sterilise the subject. One must determine whether the sponsor has either explicitly promoted support or so interfered as to render an unattractive subject attractive. Any less a distinction makes its impossible to distinguish between the subject itself and the presentation."
This sets out a theme emphasised by counsel for the defendants. An objective test was required and that was provided by prohibiting a positive exhortation to vote in a particular way. Whatever the merit of this as a generalised test, it does not appear to be derived in any way from the judgments in McKenna No.2 . He concludes that the booklet does not "advocate a particular outcome." This he says is a notable absence and is a clear distinction from a "campaigning type booklet which would make such a bias manifest." Finally, at paragraph 25 of his affidavit he said "Where propaganda is alleged, I believe it is important that it is manifestly propaganda. If propaganda is forbidden, it must be identifiable as such or else an author faces an invisible standard." For the sake of completeness I should say that on the hearing of this appeal the plaintiff submitted further evidence and exhibited a statement from a discussion on thejournal.ie website in which Dr. O'Malley expressed views on the nature of the campaign. In particular, in relation the Fianna Fáil slogan adopted "Protect Children", which as the plaintiff observed, is a direct parallel of the key message "Protecting Children" on the Government website and leaflet, Dr. O'Malley stated "The phrase "Protect Children" is again an attempt to frame the referendum, which those on the no side might take issue with. The phrase is pretty anodyne, but that doesn't really matter." The plaintiff relied on this because, of course, his case was that the website material was precisely that: an attempt to frame the Referendum in a fashion favourable to the Yes side.

27 I have set out the evidence submitted at some length. I think it is possible to make the following observations on the approach which the evidence adduced on behalf of the defendant reveals. There is no direct reference to or quotation from the judgments of this Court in McKenna No. 2 , or a coherent or consistent explanation of what the defendant considers that case decided. Where such reference is made indirectly, it is apparent that the defendant's approach is to emphasise the fact that a factual information campaign did not contravene the principles in McKenna No.2 , to adopt a broad understanding of what constitutes such factual information together with a narrow reading of what was prohibited in that case (as "advocacy", "campaigning", "propaganda" or "direct exhortation"). The case made asserts the impossibility of a truly neutral standard either in general, or at least on the part of the Government proposing the amendment, and suggests that the question of whether Government material complied with the McKenna No.2 principles should be assessed by a particularly generous standard which recognises the inherent nature of the topic and asserts the inevitability of partiality, and imposes an objective standard, namely a prohibition on direct exhortation to vote Yes. The evidence only engaged with the specific evidence on behalf of the plaintiff, at a level of abstraction and generalisation. Indeed it did not address the evidence of either Professor Kenny or Ms. Sheridan at all. Although the campaign was itself an exercise in public relations, no evidence from that field was proffered to explain the message the material was designed to convey, or otherwise to counter Ms. Sheridan's evidence.

The High Court Judgment
28 In the High Court the learned President of the High Court dismissed the plaintiff's claim. It is significant however that in doing so, the President adopted an approach which showed that he considered it was necessary to produce something exceptionally partial before the standard set in McKenna No.2 would be breached. Observing that the defendants had not sought to challenge the question or otherwise seek to refine the principles enunciated in McKenna No.2 he set out his view that the bringing forward of a referendum proposal by the Government is a political act or initiative in respect of which the Court should be extremely slow to intervene. Accordingly he considered at paragraph 37 that the yardstick against which the material should be assessed was that:

      "The breach complained of must be something blatant and egregious. It must be something which is to be seen or found in the presentation of the proposal and not to be a matter which to quote counsel for the defendants, "mires" the court in assessing the merits of the substantive issue or an excessive scrutiny of each and every scrap of information disseminated by or on behalf of Government."
It is in my view instructive, that it was by setting the hurdle at the height marked "blatant and egregious" that it was possible to conclude that the material in this case did not offend the McKenna No.2 principles.

The Defendants' Submissions
29 As a matter of logic it might be said that the material in this case could be justified in a number of ways: first by contending that it was truly impartial on any standard; second, by contending that McKenna No.2 was wrongly decided; third, by taking a narrow reading of that case and asserting either that impartiality was not the standard required, or alternatively that it should be judged by a very deferential standard, or both. For reasons I have set out, I do not consider that it is possible to say that the material is on any view impartial, and indeed, on one view, the approach taken by the defendants' witnesses is a confirmation of this conclusion. It is also significant, as observed by the learned President, that the defendants did not seek to question the decision of McKenna No.2 , nor indeed to suggest it should be qualified in any way. I do not consider that it would be appropriate for me to offer any observations on this matter. I approach this case in the same way as it was approached by the defendants: on the basis that the McKenna No.2 decision correctly states the law and is binding and that the only question for resolution is its application to this case. Accordingly the defendants' case appeared to be limited to contending for a narrow reading of the McKenna No.2 decision, i.e. that it simply precluded direct advocacy of a yes vote when supported by public funds, and contending at the same time for a high threshold for review.

30 At the outset of submissions counsel for the defendants sought to contend that McKenna No.2 forbade what he described as "deliberate, self-demonstrating, political action with public funds" which he said was not present here. Of course, this phrase cannot be derived from any of the judgments in McKenna No.2 . He sought to justify it as a distillation of the McKenna No.2 principles by arguing that that case was decided in the context of deliberate self-demonstrating political action with political public funds. In other words, the McKenna No.2 case involved the contribution of IR£500,000 to promote a Yes campaign, and only precludes such expenditure. But it is impossible in my view to contend that McKenna No.2 can be so narrowly understood. That would be to confuse the result with the reasoning by which it was reached, and the facts of the case with the principle it illustrates. Counsel for the defendants did accept that a Government funded campaign had to be "fair, equal and impartial" which is a notably broader formulation and one more consistent with the reasoning in McKenna No.2 . Later he also accepted that any information campaign should be "neutral".

31 The core of the defendants' case therefore seemed to turn on an insistence that the material published by the Government did not offend the McKenna No.2 principles as interpreted by the defendants. Central to that proposition was the threshold necessary to establish a breach of those principles. The argument was that McKenna No. 2 recognised the Government could provide information, and that Hamilton C.J. had referred to the necessity of establishing "clear disregard" which contemplated a margin of deference to governmental decisions which meant in turn - and this was the crucial step in the argument- that only a clear and unequivocal exhortation to vote yes was prohibited. This argument is indeed consistent with the memorandum of instruction to the department which suggested that it was sufficient to redact from any speech those portions alone that actually said "vote yes". All the elaborate argument and evidence really came to this proposition, and understandably so. Unless the test of clear disregard of the constitutional obligation of fair equal impartial and neutral could be reduced to a question of the presence or absence of a positive exhortation to vote , then it would be difficult to find that the present material was compatible with that constitutional standard. However I cannot understand how a standard of clear disregard, which involves a consideration of the degree to which material could be said to be impartial , could be equated with a test dependent on the presence of an exhortation to vote, no matter how partial and tendentious the material might otherwise be.

32 Building upon that perhaps slender basis, it was submitted that there were analogies for the level of tolerance which it was asserted the McKenna No.2 principles, at least as interpreted by the defendants, allowed to governmental action. Thus it was suggested that in the context of administrative law the same principle was reflected in the Wednesbury rules, which distinguish between rationality of the decision making process, and the merits of the decision itself. This is a reference to a test in administrative law in the U.K. set out in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 K.B. 223, found in Irish law in State (Keegan & Lysaght) v. Stardust Victims Compensation Tribunal [1986] 1 I.R.642, that a court will only quash an otherwise lawful decision if it flies in the face of fundamental reason, or is so unreasonable that no reasonable decision maker could have arrived at that decision. Reliance was also placed on s.43 of the Referendum Act 1994, which provided that a petitioner might question a provisional referendum certificate where he or she could show that the result was "affected materially" by an irregularity. It is suggested that this test which applied after a referendum, should apply conversely so that it was argued that "…only such matters as can assuredly be said to ‘materially effect' the outcome should be enjoined by Court order if the manner of the provision is unlawful and unconstitutional." This would be a very formidable hurdle indeed if applied, as it must be, in advance of a referendum. Furthermore it was said, there must be a "broad range of appreciation." It was necessary to take account of the "ineradicable attraction of the subject". There were some subjects which "cannot be spoken about without giving the appearance of bias". The only valid test therefore was to understand the reference in McKenna No.2 to "clear disregard" as prohibiting an unequivocal exhortation to vote in one way, and that alone. When asked to identify a portion of the material which could be said to be favourable to the No side of the debate counsel pointed to the following passage on page 12 of the booklet where it was said it was acknowledged that the best interests of the child test could already be found in existing legislation. The sentence and the immediately succeeding sentence are as follows:-

      "This principle can already be found in existing legislation concerning guardianship, child care and adoption. However specific recognition of this principle in the Constitution will give this principle greater weight when counter-balanced against other rights and interests, and ensure that laws in these areas make such provision."
The fact that this passage which in my view clearly promoted the proposed amendment could be relied upon as an, if not the, example of a passage favourable to the No argument, is itself revealing.

Conclusion
33 I regret that I find the arguments of the defendants deeply unpersuasive. The reading of the judgment in McKenna No.2 , as limited to a positive endorsement of a right and duty to provide information on the part of the Government, and a negative prohibition on only such conduct as would fail a Wednesbury test type (or the "material affect" test contained in s.43 of the Referendum Act 1994) is in my view unjustified. In particular it does not give any weight to the reasoning leading to the decision in that case.

The McKenna No.2 Decision
34 Those judges who were in the majority in McKenna No.2 took slightly different but consistent routes to their conclusion. Thus, Hamilton C.J. focussed on the structure of the Constitution and the separation of powers. At page 32 of the report he relied upon the statement by Walsh J. in the course of Crotty v. An Taoiseach [1987] IR 713 that, "To the judicial organ of Government alone is given the power conclusively to decide if there has been a breach of constitutional restraints." He also referred to the passage in the judgment of Fitzgerald C.J. in Boland v. An Taoiseach [1974] I.R. 338, where he said:

      "Consequently, in my opinion, the courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions, unless the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution."
Finally, Hamilton C.J. referred to the passage in Crotty v. An Taoiseach in the judgment of Finlay C.J. where he stated:
      "… where an individual comes before the Courts and establishes that action on the part of the executive has breached or threatens to breach one or other of his constitutional rights that the Courts must intervene to protect those rights but that otherwise they cannot and should not."
From these passages Hamilton C.J drew certain conclusions:
      "1. The courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions provided that it acts within the restraints imposed by the Constitution on the exercise of such powers.

      2. If, however, the Government acts other than in accordance with the provisions of the Constitution and in clear disregard thereof, the courts are not only entitled but obliged to intervene.

      3. The Courts are only entitled to intervene if the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution.

      Having regard to the respect which each organ of government must pay to each other, I am satisfied that where it is alleged that either the Oireachtas or the Government has acted other than in accordance with the provisions of the Constitution, such fact must be clearly established."

35 This conclusion is obviously important, not least because it is not limited to the specific context of referenda, but refers to the position of the exercise of governmental powers more generally. It seems to me however, impossible to derive from this simple system the hyper deferential test contended for by the defendants particularly when such a test is not so expressed in either the judgment of Hamilton C.J. or in any of the other judgments. While the defendants necessarily place heavy emphasis on the word "clear" it is perhaps telling that although Blayney J. is recorded in the headnote of the report as agreeing with the synthesis proposed by Hamilton C.J. he did not express himself in just those terms. Although at page 50 of the report he expressed a general agreement with the Chief Justice, he concluded simply "The Government has in my opinion acted in disregard of the provisions of the Constitution…" (emphasis added). It is not necessary to consider here what precisely is meant by the phrase "clear disregard" and we were not invited to do so. It seems at least to provide in this case a readily understandable and applicable standard to judge governmental action. As is evident in the passage referred to it is a component of that respect due by one organ of Government to another (seen also in the presumption of constitutionality in respect of legislation), and a reflection of the fact that the Constitution confers primary responsibility for, and expertise in, certain areas on one of the branches. Breaches of the Constitution in any such area must be capable of being clearly established. I can see no justification for replacing that test with a standard of blatant and egregious. Still less is there any justification for reducing the test in the case of a referendum campaign to a prohibition of direct exhortation to vote in a particular way. It is difficult to see why the Constitution would require a standard that would prohibit only gross acts of exhortation (which might be ineffective) but permit effective though more subtle advocacy, and nothing in McKenna No.2 supports such a distinction. Instead the decision is clearly expressed in broad terms.

36 The remaining judgments emphasise different aspects of the case but they are notable for the breadth of the principles invoked. O'Flaherty J. held, at pp.45 and 46, that the spending of public monies by the Government infringed the equality rights of the citizen. He also saw fairness as a component of that equality. Importantly in the context of the present case he also observed that the strength with which the proposal was pressed was irrelevant to the question of whether it was fair and impartial:

      "It is no answer to say, as has been said, that the advocacy … is gentle, bland and mild and is put forward in the context of making a fair effort on the Government's part to put all matters before the people; nor is it an answer to say that the amount involved, £500,000, is only a small amount; it may well be - but even if it is so, the principle is not affected - nor, finally, is it any answer to say that it is either the entitlement or the "duty" of a Government so to educate the public . If the Government regards itself as having that right or duty, it must exercise it without resort to public funds."
These words apply with equal force in the present case.

37 Blayney J. considered that it was significant that the Constitution gave no explicit role to the Government in a referendum process. The sole function of the executive which could be deduced from the text of the Constitution, was that it was its duty to submit the bill in referendum to the People. It followed therefore that constitutional justice required that the executive should act fairly in submitting its proposal. He concluded at page 50:

      "If this plan were implemented it would give a very considerable advantage to those whose support the amendment as against those who oppose it. The Government would be acting unfairly in the manner in which it was submitting the amendment to the decision of the People."
Finally, Denham J. (as she then was) considered that the spending of Government funds in a referendum campaign in support of one side of that campaign, breached the equality rights guaranteed by Article 40.1, and particularly the spirit of equality applied in the process of a referendum. It also breached the right of free expression, and a right to a democratic procedure in the Referendum.

38 On any analysis of the judgments in McKenna No.2 it seems clear that it cannot be understood as a narrow decision. It involved the application of broad principles derived from the structure and underlying theory of the Constitution, indeed some of its most fundamental concepts such as fairness and equality. To contend that the judgment asserts a right on the part of the Government to make information available, and merely prohibits blatant or egregious acts of direct advocacy, is an unduly narrow approach to that judgment. It would indeed be peculiar if the most fundamental concepts of fairness and equality operated only to prohibit the use of public funds to advocate a Yes vote, but did not restrain partiality, unfairness and inequality, however pervasive that might be.

39 It must be apparent also, that the Wednesbury test is not a useful guide to the application of constitutional standards to actions by the executive. When a public body exercises public law functions, a court exercising judicial review, does not act as if it were considering an appeal on the merits of any individual decision. The sole function of a court is a review of the legality of that conduct. If a public body does not act within its powers and if it is challenged a court must so declare. There is no margin of appreciation. A court does not however consider the merits of the individual decisions save, that if it is manifestly irrational, it is also considered unlawful. Thus, the irrationality test is a residual test of legality, and a very attenuated review on the merits. But the court does not apply the irrationality test to the question of legality, and still less to any question of whether any action is in breach of the Constitution. It is hard to see how the so called Wednesbury test of unreasonableness can provide any useful guidance where an action is challenged by reference to the Constitution.

40 The analogy with s.43 of the Referendum Act 1994 is equally misplaced in my view. It should be clear that there is a large, and constitutional distinction between restraining a breach of the Constitution by the Government (or anyone else) occurring in the course of a referendum campaign, and the interference with and setting aside of, a decision made by the People whose right it is in final appeal to decide all questions of national policy. In the event, the Divorce Referendum which was the background to McKenna No.2 itself provides a clear demonstration of the fallacy of this reasoning. The Government campaign was in fact restrained by the Supreme Court in McKenna No.2 but the subsequent decision of the People was not set aside although challenged in Hanafin v. Minister for the Environment [1996] 2 IR 321 where the petitioner relied on the self-same breaches of the Constitution which had been established in McKenna No.2 and, for good measure, some further matters which emerged thereafter. If the test of material effect as applied in Hanafin is applicable in the McKenna No.2 situation then the plaintiff ought to have failed. Alternatively, if McKenna No.2 is to be understood as an implicit application of the material effect test then the petitioner in Hanafin ought to have succeeded. It is apparent that a different standard applies in any application to set aside the decision of the People once given, and for good reason.

41 Like my colleagues, and the President of the High Court, I agree that the position of the Referendum Commission requires consideration in the course of this case and indeed if the dictates of the Constitution as outlined in McKenna No.2 are to be complied with. First of course, the very existence of the Referendum Commission, and its performance of its function in delivering literature at short notice to the electorate, is itself the most clear demonstration that contrary to the evidence and submissions of the defendants, it was possible to state the facts and issues in this very Referendum campaign without inevitably favouring the proposal. Furthermore, it is worth recalling that McKenna No.2 was decided in the context of a referendum campaign in which, almost by definition, there was no role for a Referendum Commission. Indeed, during that Referendum campaign there was a dual campaign conducted on behalf of the Government: the £500,000 promotion of a Yes vote, and the expenditure of monies on the delivery of what was described as "factual information". It was this latter function which has subsequently been discharged by the Referendum Commission. The Referendum Commission is now an established and welcome feature of the landscape in any referendum campaign. A decision therefore of the Government to launch its own and separate information campaign not only ran the risk of proceedings such as this (particularly because it was apparently believed that it was not possible for the sponsor of the proposal to be strictly neutral), but also a risk of considerable confusion and a consequent undermining of the function of the Referendum Commission. The existence of a fully independent body with a record of delivery of trustworthy information to voters is itself a significant performance of the guarantee of impartiality of the process of information dissemination in the course of a referendum. I also agree with the learned President that it is undesirable that the courts should be asked to intervene to analyse in minute detail language used in the provision of information to voters. In any proposal to amend the Constitution it is important that the People are permitted to make their decision on the merits of the proposal in a fashion which is as free from interference and distraction as possible. The public challenging of information in court and the uncertainty created by the existence of court cases, are all undesirable distractions from the question of whether the proposal put to the People should be adopted or not. The test of "clear disregard" applied by having regard to the publication as a whole provides a standard which should permit the Referendum Commission to carry out its function without the type of hyper zealous textual analysis rightly deprecated by the learned President.

42 Ultimately the material supplied here must be judged. In my view, that poses little difficulty. It is irrelevant that the material can be seen as low key, lacking in stridency, or not direct advocacy of a yes vote. As counsel for the plaintiff observed, subtle advocacy may be much more effective than a blatant or egregious advocacy. Indeed much successful campaigning in a political context may involve avoiding hard edged statements of detail with which people may disagree, and an attempt to associate the candidacy or proposal with ideas which themselves are popular and acceptable and the creation of a mood and impression which is favourable. Thus the material used in the Referendum campaign of those political parties which were unambiguously in support of the proposal, and campaigned directly for it, was often limited to attractive images of children and slogans such as "every child matters" and "children should be seen and heard". The presentation of such images and slogans are attempts to frame the debate in terms favourable to one side. It is a common observation that a person who is able to frame the debate, particularly if they can put themselves in a trusted position as the purveyor of information, will often succeed. The most valued position in politics, is the appearance of being above politics. The fact that the message here cannot necessarily be described as strident, blatant and egregious, or campaigning advocacy or propaganda, is to miss the point. The only question is whether it was fair, equal, impartial and neutral. Making every allowance for the range of possible views I consider that it has been clearly established that it was not. For these reasons, and for the reasons set out in the judgments of the Chief Justice and Fennelly J , with which I agree, I allowed the plaintiff's appeal.



Ruling of the Court delivered on the 8th day of November, 2012 by Denham C.J.

1. This is an appeal by Mark McCrystal, the plaintiff/appellant, referred to as “the appellant”, from the judgment and order of the High Court (Kearns P.) given on the 1st November, 2012.

2. This matter was dealt with as a matter of urgency by the High Court, as it is by this Court, as the appellant has sought declarations, an injunction and consequential orders which have a relevance to the Referendum taking place on the 10th November, 2012.

3. In McKenna v. An Taoiseach (No. 2) [1995] 2 IR 10, it was held that the Government in expending public moneys in the promotion of a particular result in a Referendum process was in breach of the Constitution.

The people adopted the Constitution 75 years ago. The Constitution belongs to the people and may be amended only by the people in a Referendum. It is this democratic process which is protected by the McKenna principles. Public funding should not be used in a Referendum to espouse a particular point of view.

4. The McKenna principles may be found in the several judgments in that case. These principles, which are not in dispute, are consistent with standards recognised both nationally and internationally for a Referendum process, such as the European Commission for Democracy through Law (Venice Commission), Code for Good Practice on Referendums, adopted by the Council for Democratic Elections at its 19th Meeting (Venice, 16 December, 2006) and the Venice Commission at its 70th Plenary Session (Venice, 16 – 17 March, 2007).

5. At issue in this case is the application of these principles to a booklet and a website, both entitled “Children’s Referendum”, and advertisements, published and disseminated by the Department of Children and Youth Affairs, on foot of moneys voted by the Oireachtas, which the appellant submits breach the McKenna principles.

6. The Court is required to give its decision promptly, in view of the pending Referendum to be held on Saturday, 10th November, 2012. The substance of that proposal is a matter for the people alone. The Court will give its ruling today and judgements will be delivered on Tuesday, 11th December, 2012.

7. The Court has concluded that it is clear that there are extensive passages in the booklet and on the website which do not conform to the McKenna principles. This material includes a misstatement, now admitted to be such, as to the effect of the Referendum.

8. The Court is satisfied that while not all of the website or the booklet are in breach of the McKenna principles, because of the overall structure of the booklet and website, it would not be appropriate for the Court to redact either.

9. Accordingly, the Court would grant a declaration that the respondents have acted wrongfully in expending or arranging to expend public moneys on the website, booklet and advertisements in relation to the Referendum on the Thirty First Amendment of the Constitution (Children) Bill, 2012, in a manner which was not fair, equal or impartial. The Court does not consider it either appropriate or necessary to grant an injunction, as it is to be assumed that the respondents will cease distributing and publishing the material.


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