Mark McCrystal v The Minister for Children and Youth Affairs, The Government of Ireland, Ireland and Attorney General

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 01 November 2012
• Neutral Citation: [2012] IEHC 419
• Docket Number: [2010 No. 10508P]
• Court: High Court
• Date: 01 November 2012

[2012] IEHC 419

THE HIGH COURT

[2010 No. 10508P]

BETWEEN

MARK McCRYSTAL

PLAINTIFF

AND

THE MINISTER FOR CHILDREN AND YOUTH AFFAIRS, THE GOVERNMENT OF IRELAND, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

Constitutional law - Referendum - Information - Website - Legality of message - Favouritism - Facebook - Thirty - First Amendment of the Constitution (Children) Bill 2012 - McKenna v An Taoiseach (No. 2) [1995] 2 IR 10

Facts: The plaintiff claimed that certain publications and advertisements of the first defendant relating to a proposed amendment of the Constitution by referendum, the Thirty-first Amendment of the Constitution (Children) Bill 2012, were unconstitutional having regard to Article 46 of the Constitution and the Supreme Court decision in McKenna v An Taoiseach (No. 2) [1995] 2 IR 10. The website was set up separately to the Referendum Commission of the Government. The advocacy on the first defendant's website "childrenreferendum.ie" and also in the Government's Information Booklet and other radio and television ads produced by the Government was asserted to be unlawful. The defendant's contended that there was certain background and consequential information which it had a duty to impart. The plaintiff impugned a Facebook link which voters could "like".

Held by Kearns P (ex tempore) that the Court was satisfied that the campaign run by the defendants contained material which was neutral, balanced and had as its primary aim of informing the public. The Court would refuse the reliefs sought. The advertisements were largely inoffensive.

Kearns P.

1 This matter comes before the Court on foot of the plaintiff”s claim that certain publications and advertisements of the first defendant relating to a proposed amendment of the Constitution by a referendum following the Thirty-first Amendment of the Constitution (Children) Bill 2012 are unconstitutional having regard to the status of a referendum under Article 46 of the Constitution and the views expressed by the Supreme Court inMcKenna v. An Taoiseach (No. 2) [1995] 2 I.R. 10. The plaintiff maintains that the defendants have contravened the Constitution as interpreted in McKenna (No.2) in the sense that they have put forward material of a publicly funded nature which favours a positive outcome and a “Yes” vote in the referendum. This advocacy is said to be contained in particular on the first defendant”s website ‘childrensreferendum.ie ’, and also in the Government”s Information Booklet and in other current radio and television ads produced on behalf of the Government.

2 The application was opened to me on Tuesday afternoon (30th October, 2012) when, by consent, the hearing of the motion was treated as the trial of the action. I was informed on that occasion that, in all probability, one side or the other would appeal any decision I made to the Supreme Court. Having regard to the imminence of the referendum on 10th November, 2012 I am therefore delivering my decision inex tempore form this morning so that the matter can be mentioned to the Chief Justice at her regular Thursday call-over of cases today with a view to facilitating any appeal which either side might decide to bring.

BACKGROUND

3 On 3rd October, 2012 the Thirty-first Amendment of the Constitution (Children) Bill 2012 was passed by both Houses of the Oireachtas. On 8th October, 2012 under the Referendum Act, 1994 the 10th November, 2012 was appointed polling day in the referendum. On 16th October, 2012 the Referendum Commission, an independent body established under the Referendum Act 1998, launched its public information campaign by establishing a website, www.referendum2012.ie, and distributing an information guide to the referendum to all homes in the State. Its chairperson has in addition appeared on national radio to further explain the referendum proposal and to answer questions from members of the public.

4 Quite separately from the Referendum Commission, the first named defendant launched an information campaign on the referendum, which included setting up a website, (www.childrensreferendum.ie). It commissioned 2.05 million copies of an information booklet and on 19th October commenced delivery thereof to all homes in the State. It further arranged for a series of radio and television ads which are currently being aired on these outlets.

5 The plaintiff makes no complaint as to the impartiality or objectivity of the campaign being run by the Referendum Commission. On the contrary both sides agree that the Referendum Commission has done an excellent job but the defendants contend that there is certain background and consequential information pertaining to the referendum which it has a duty to impart to the general public so that it can be properly and fully informed. However, the plaintiff claims that the parallel information campaign being run by the defendants is wrongful and in breach of the Constitution as it is expenditure of public monies to promote a Yes vote. The plaintiff makes no objection to the defendants arguing for a Yes vote by means which do not involve the expenditure of public monies, nor does the plaintiff object to incidental or insignificant expenditure which may be incurred by the defendants, in, for example, issuing a press release to the media.

FIRST DEFENDANT”S WEBSITE

6 The plaintiff takes issue specifically with the website, booklet and advertising on television, radio and print media undertaken by the first defendant. A further complaint about the first defendant”s own Departmental website was not pursued to any appreciable degree.

7 The plaintiff claims that the language used on the website established by the first defendant (www.childrensreferendum.ie) implies there is a need for the referendum and uses campaigning terminology designed to promote support for the proposal. The plaintiff further claims that the FAQ section of the website is dismissive of possible objections to the proposal and could not be viewed as a fair and balanced analysis of the pros and cons of the amendment, and that the totality of the website leans heavily towards supporting the referendum, designed and intended to influence voters by favouring a particular result.

8 To this end, the plaintiff claims the Government website places 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”; a slideshow, the penultimate message of which is ‘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.

9 The plaintiff also points out that a Facebook link whereby voters could ‘like’ the children”s referendum website, and a paragraph providing that the amendment underpins family support services appeared on the website originally but have since been removed. The plaintiff argues that the removal of this material is evidence that it was slanted in favour of achieving a Yes vote.

10 The defendants argue that none of the material put by them into the public arena advocates a Yes vote. The defendants strongly assert the objectivity of their publications and say that they have a right in the public interest to publish information concerning subjects of a referendum and encourage debate of the issues.

THE FIRST DEFENDANT”S BOOKLET

11 The title of the booklet distributed by the Government is ‘Children”s Referendum’, accompanied by a picture of three children holding hands. The plaintiff claims that the booklet links the referendum to Government policy and reform of child protection services and that it glosses over the very real threat to parental control of their children.

12 The plaintiff claims that on pages 8 to 9 of the booklet in the discussion of the new Article 42A.2.1°, attention is not expressly drawn to the fact that specific changes from the existing wording of the Constitution as it affects parents are outlined there. The emphasis is said to be on continuity rather than on those changes, so that the effect of p.9 in particular is to have a “lulling” effect on the reader. Attention is also drawn to an error (now admitted by the defendants) at paragraph 3 of page 9, in the use of the word “continue” in the sentence ‘Key requirements will continue to be as follows’. This, it was claimed, was both seriously misleading and persuasive of a Yes vote.

13 The plaintiff argues that, stylistically at least, the reference in the booklet to an “Article by Article guide” leads to an inference that the booklet was written by legal or other experts intent on informing the public, and not by communications-minded individuals intending to persuade.

14 On page 12, the plaintiff claims the booklet glosses over and does not identify in any way the “other rights and interests” which will be counter balanced against specific recognition of the best interests of the child in the amended Constitution and the greater weight which will be given to the best interest principle if the Amendment is passed.

15 The plaintiff also contends that the use of “campaigning” type language on page 14 such as ‘the proposed new Article puts the safety and welfare of children at the centre of decision making in relation to child protection’, is value-laden and imbued with a sense of the desirability of the amendment and does not communicate any specific factual information.

FIRST DEFENDANT”S ADVERTISEMENTS

16 The plaintiff claims that the print advertisement run by the first defendant is misleading in that there is no indication that the advertisement is run by the Department of Children, which in turn leads to confusion as to whether it emanates from the Referendum Commission or the Government. In addition, the plaintiff takes issue with the radio and television advertisements...