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

• Jurisdiction: Ireland
• Judge: Denham C.J.,Murray, J.,Mr. Justice Fennelly,Mr. Justice O'Donnell
• Judgment Date: 08 November 2012
• Neutral Citation: [2012] IESC 53
• Court: Supreme Court
• Date: 08 November 2012

[2012] IESC 53

THE SUPREME COURT

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

O'Donnell J.

Appeal No. 486/12

McCrystal v Min for Children & Ors

Between/

Mark McCrystal

Plaintiff/Appellant

and

The Minister for Children and Youth Affairs, The Government of Ireland, Ireland and the Attorney General

Defendants/Respondents

MCKENNA v AN TAOISEACH & ORS (NO 2) 1995 2 IR 10

THIRTY-FIRST AMENDMENT OF THE CONSTITUTION (CHILDREN) BILL 2012

CONSTITUTION ART 42A.1

CONSTITUTION ART 42A.2

CONSTITUTION ART 42A.3

KOHN THE CONSTITUTION OF THE IRISH FREE STATE 1932 238

DE BURCA & ANDERSON v AG 1976 IR 38

CONSTITUTION ART 6.1

CONSTITUTION ART 46

CONSTITUTION ART 46.2

CROTTY v AN TAOISEACH & ORS 1987 IR 713

ASSOCIATED PROVINCIAL PICTURE HOUSES LTD v WEDNESBURY CORP 1948 1 KB 223 1947 2 AER 680

KEEGAN & LYSAGHT, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

POLITICAL PARTIES ELECTIONS & REFERENDUMS ACT 2000 PART VII (UK)

POLITICAL PARTIES ELECTIONS & REFERENDUMS ACT 2000 S108 (UK)

POLITICAL PARTIES ELECTIONS & REFERENDUMS ACT 2000 S110 (UK)

POLITICAL PARTIES ELECTIONS & REFERENDUMS ACT 2000 S108(2) (UK)

POLITICAL PARTIES ELECTIONS & REFERENDUMS ACT 2000 S110(2) (UK)

REFERENDUM (MACHINERY PROVISIONS) ACT 1984 S11(4) (AUSTRALIA)

ELECTORAL ACT 2002 S177C (VICTORIA AUSTRALIA)

CONSTITUTION ACT 1975 (VICTORIA AUSTRALIA)

SLATTERY & ORS v AN TAOISEACH & ORS 1993 1 IR 286

CONSTITUTION ART 6.1.2

CONSTITUTION ART 28.2

BOLAND v AN TAOISEACH & ORS 1974 IR 338 1975 108 ILTR 13

D (T) (A MINOR) & ORS v MIN FOR EDUCATION & ORS 2001 4 IR 259 2001/5/1050

MCKENNA v AN TAOISEACH & ORS (NO 1) 1995 2 IR 1 1992/8/2310

CONSTITUTION ART 42A

HANAFIN v MIN FOR ENVIRONMENT & ORS 1996 2 IR 321

CURTIN v DAIL EIREANN & ORS 2006 2 IR 556 2006 2 ILRM 99 2006/13/2692 2006 IESC 14

COUGHLAN v BROADCASTING COMPLAINTS CMSN & ORS 2000 3 IR 1

REFERENDUM ACT 1994 S43

CONSTITUTION ART 40.1

CONSTITUTION

Amendment

Referendum - Role of Government - Democratic and constitutional process for amendment of Constitution - Equality - Fair procedures - Freedom of expression - Use of public funds for Government information campaign - Test applicable - Whether clear disregard of constitutional powers and duties - Whether impartial, equal and fair - Whether neutral when viewed broadly - Whether promoted one side in referendum - Boland v An Taoiseach [1974] IR 338, Crotty v An Taoiseach [1987] IR 713, McKenna v An Taoiseach (No 2) [1995] 2 IR 10, TD v Minister for Education [2001] 4 IR 259 and Curtin v Dáil Éireann [2006] IESC 14, [2006] 2 IR 556 followed; Associated Provincial Picture Houses, Ld v Wednesbury Corporation [1948] 1 KB 223, The State (Keegan) v Stardust Compensation Tribunal [1986] IR 642, O'Keeffe v An Bord Pleanála [1993] 1 IR 39 and Hanafin v Minister for the Environment [1996] 2 IR 321 distinguished - Referendum Act 1994 (No 12), s 43 - Constitution of Ireland 1937, Articles 5, 6.1, 11, 16, 28.2, 40, 41, 42, 42A.1, 46 and 47 - Plaintiff's appeal allowed (486/2012 - SC - 11/12/2012) [2012] IESC 53

McCrystal v Minister for Children and Youth Affairs

Facts: The Government had published a booklet and website in regards to the pending referendum on the Thirty First Amendment of the Constitution (Children) Bill 2012. The appellant contended the publications breached the principles set out in McKenna v An Taoiseach (No. 2) [1995] 2 IR 10 ("the McKenna case") which stated that the expenditure of public funds to promote a specific result in a referendum offended the Constitution.

The matter had been heard as a matter of urgency at first instance, and the High Court had refused the appellant's application for relief in the matter. He now appealed to the Supreme Court.

Held by Denham CJ, the other Justices concurring, that the McKenna case was intended to protect the right of the people to determine whether the Constitution should be amended. Due to the urgency of the application because of the pending vote on the referendum, the Court deferred the handing down of reasons, but held that the publications in places breached the principles set out in the McKenna case. A declaration to that effect was granted. McKenna v An Taoiseach (No. 2) [1995] 2 IR 10 applied.

The Court considered that that an injunction was not necessary as the respondents would be assumed to ensure publication was ceased.

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

2 Judgment delivered by Denham CJ [Nem diss]

3 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 1 ^st November, 2012.

4 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 10 ^th November, 2012.

5 3. In McKenna v. An Taoiseach (No. 2) [1995] 2 I.R. 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.

6 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.

7 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 19 ^th Meeting (Venice, 16 December, 2006) and the Venice Commission at its 70 ^th Plenary Session (Venice, 16 - 17 March, 2007).

8 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.

9 6. The Court is required to give its decision promptly, in view of the pending Referendum to be held on Saturday, 10 ^th 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, 11 ^th December, 2012.

10 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.

11 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.

12 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.

13 Judgment delivered on the 11th day of December, 2012 by Denham C.J.

14 Judgments delivered by Denham CJ & Murray J & Fennelly J & O'Donnell J

This Appeal

15 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 1 ^st November, 2012.

16 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".

17 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 10 ^th November, 2012.

Ruling

18 4. On the 8 ^th 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 I.R. 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...