Fair Referendum Campaigns in the Light of Recent Court Decisions

• Date: 01 January 2015
• Author: Patricia McKenna

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Fair referendum campaigns in the light of

recent Court decisions

PATRICIA MKENNA

Introduction

The Supreme Court decision in McKenna v An Taoiseach (No. 2)1 has long

been a bone of contention within the Irish political establishment. This

case ruled that the use of public money by the Government to support one

side in a referendum was unconstitutional. Despite frequent calls for this

decision to be revisited,2 the principles established in McKenna have been

reafrmed in McCrystal v The Minister for Children and Youth Affairs.3

In that case, the Supreme Court made it clear that there should be a strict

interpretation of the McKenna principles with regard to publicly funded

information. The court also held that it is possible for the Government

to breach the McKenna principles without intending to do so.4 This has

reopened the debate on Government involvement in the constitutional

referendum process and its provision of publicly funded information during

the campaign.

This article will rst explore some of the main issues surrounding the

McKenna principles, as claried by McCrystal. It will attempt to justify

the reasoning behind these decisions and address some public criticisms

of the decisions, with a focus on the constitutional role of Government

in relation to referendums. Finally, some options for striking the balance

between ensuring fairness and equality as against voters’ access to accurate

information on referendums will be canvassed. In conclusion, it will be

argued that expanding the mandate of the Referendum Commission is the

best way forward.

Intervention of the Courts

The applicant in McKenna objected to the Government’s use of public

funds to campaign exclusively in support of a proposed amendment to the

Constitution. The Supreme Court ruled that it was unconstitutional for the

1 [1995] 2 I.R. 10 [hereinafter McKenna]

2 Gavin Barrett, A Road Less Travelled: Reections on the Supreme Court Rulings in

Crotty, Coughlan and McKenna (No. 2), (IIEA, 2001), p.28

3 [2012] I.E.S.C. 53 [hereinafter McCrystal]

4 ibid, p.30

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Fair referendum campaigns in the light of recent Court decisions 57

Government to use public monies to fund a campaign aimed at persuading

voters to vote in a particular way in a referendum. Hamilton CJ held:

The use by the Government of public funds to fund a campaign

designed to inuence the voters in favour of a ‘Yes’ vote is an inter-

ference 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.5

It is submitted that the logic of the McKenna judgment turns on the fact

that, according to Article 47.1, it is the people alone who can change the

Constitution. The process of making that decision must be democratic and

meaningful.

The Supreme Court interpreted the equality provision in Article 40.1

of the Constitution as one that extends to equal treatment of both sides

in a referendum campaign. It held that publicly funding one side had

the effect of putting the voting rights of those citizens in favour of the

amendment above the voting rights of those citizens opposed to it.6 Such

action also represented an infringement of the constitutional right to

freedom of expression and the constitutional right to a democratic process

in referenda.7

A contrasting approach to a similar question was seen in McKenna v

An Taoiseach (No. 1),8 where the applicant unsuccessfully sought an inter-

locutory injunction to prevent the use of public funds by Government to

urge a yes vote in the 1992 Maastricht Treaty referendum. In that case

Costello J took the view that the complaint regarding the Government’s use

of public funds was one of political misconduct which was non-justiciable.

He rejected the contention that any constitutional wrong was involved in

the Government using public money in this way.9 He held that should the

Government decide that something was in the national interest, then “it

would be improper for the courts to express any view on such a decision”.10

Costello J’s decision displayed signicant judicial deference towards the

Oireachtas. In McKenna Hamilton CJ held that the decisions of Costello

and Keane JJ “were based on the concept of the separation of powers which

is fundamental to all of the provisions of the Constitution”11 and that this

meant that the court could not interfere in the exercise by Government of

its executive functions. However Hamilton CJ pointed out that in Crotty v

An Taoiseach12 Walsh J held:

5 McKenna, supra, note 1, pp.40–42

6 ibid, p.43

7 ibid

8 [1995] 2 I.R. 1, pp.5–9 [hereinafter McKenna (No. 1)]

9 ibid, pp.5–6

10 ibid, p.6

11 McKenna, supra, note 1, p.39

12 [1987] I.R. 713 [hereinafter Crotty]

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