Fair Referendum Campaigns in the Light of Recent Court Decisions

Date01 January 2015
AuthorPatricia McKenna
Fair referendum campaigns in the light of
recent Court decisions
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
03[08] McKenna.indd 56 03/06/2015 15:12
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
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]
03[08] McKenna.indd 57 03/06/2015 15:12

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