McCRYSTAL v MINISTER for CHILDREN

• Jurisdiction: Ireland
• Judgment Date: 11 December 2012
• Date: 11 December 2012
• Docket Number: [2012 No. 10508 P]
• Court: Supreme Court

McCrystal v. Minister for Children

Mark McCrystal

Plaintiff

and

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

Defendants

[2012] IEHC 419 [2012] IESC 53

[2012 No. 10508 P] [S.C. No. 486 of 2012]

High Court

Supreme Court

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 information campaign promoted one side in referendum - 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.

Prior to the constitutional referendum on the Thirty-First Amendment to the Constitution, relating to children's rights, the first defendant launched an information campaign on the referendum. The campaign comprised a website and a booklet, as well as television, radio and print advertisements, and was funded by public monies. The plaintiff brought proceedings claiming that the defendants had contravened the Constitution by spending public funds on a campaign which favoured a "Yes" vote in the referendum.

The plaintiff claimed that the language used on the website implied that there was a need for the referendum and promoted support for the proposed amendment. He further claimed that the website placed an emotional emphasis on children, with numerous pictures of children and children handwriting and the slogan "It's all about them… but it's up to you". The plaintiff further pointed out that a Facebook link whereby voters could "like" the website, as well as a paragraph providing that the amendment underpinned family support services, had been removed from the website following a complaint he made.

As regards the information booklet, the plaintiff claimed that it linked the referendum to Government policy and reform of child protection services. He further pointed to an error in the wording of the booklet, which was admitted by the defendants after the proceedings were instituted and which gave the impression that particular changes which would come about as a result of the referendum were a continuation of existing requirements. No action had been taken to correct this error. More generally, the plaintiff submitted that the booklet used "campaigning" type language which was value laden and imbued with a sense of the desirability of the amendment, rather than simply communicating factual information.

The plaintiff pointed to a number of headings and slogans used in both the booklet and the website, such as "Protecting children" and "Supporting families", which, he said, promoted a "Yes" vote. In addition, the plaintiff highlighted the fact that the booklet and the website posed the question "Why do we need a referendum?", thereby inferring, contrary to the views of those on the "No" side, that there was a need for the constitutional amendment. Furthermore, it was argued that the material suggested that the Constitution was deficient in failing to contain an express statement of rights for children. In this regard, the plaintiff pointed to a statement to the effect the referendum was about "strengthening the Constitution", as well as statements to the effect that the proposed amendment would "reflect our shared value in relation to ensuring the protection of all our children", "give firmer recognition to the rights of children", "put children's needs at the centre of the decision making" and "facilitate changes to adoption legislation".

The plaintiff contended that the advertisements were misleading as they failed to make it clear that they came from the first defendant, as opposed to the Referendum Commission which had been established to provide information in relation to the referendum. He further claimed that the imagery and language used in the advertisements encouraged a "Yes" vote.

The plaintiff argued that the defendants had, by their actions, breached the constitutional principles of equality, fair procedures, freedom of expression and the right to a democratic process in referendums. He sought a declaration to this effect and injunctive relief in relation to the ongoing distribution of information and the advertising campaigns.

The defendants responded that they had a right to publish information concerning the referendum and encouraging debate of the issues, and to use public funds for this purpose. They submitted that none of the material advocated a "Yes" vote and that the imagery of children related to the subject matter of the referendum and did not promote one side over the other. They emphasised that they had carefully and scrupulously endeavoured to remain within the confines of the constitutional constraints but that, if any of the material was suggestive of a slight bias, the error was not so blatant or egregious as to warrant the court's intervention. The defendants also raised the issue of delay and submitted that the granting of injunctive relief at a stage when two thirds of the booklets had been distributed would be practically pointless.

Held by the High Court (Kearns P.), in refusing the reliefs sought, 1, that, for the court to intervene in the exercise by the Government of its executive functions, the Government had to commit a blatant and egregious breach of the Constitution. It must be something which was seen or found in the presentation of the proposal and not a matter which mired 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 the Government. On the basis of the evidence before the court, it could not be said that there was a clear constitutional abuse or a manifest solicitation to vote in a particular way.

Boland v. An Taoiseach [1974] I.R. 338,Crotty v. An Taoiseach [1987] I.R. 713 andMcKenna v. An Taoiseach (No. 2) [1995] 2 I.R. 10applied.

2. That it could not be objectively maintained that images of children and child handwriting promoted one side over another. Similarly, the slogan "It's all about them… but it's up to you" could be used by proponents of either side.

3. That the Facebook "like" link and the paragraph to the effect that the amendment underpinned family support services were not significant one way or another. "Liking" the website did not equate with advocating a "Yes" vote.

4. That, while the defendants had erred in suggesting in the booklet that certain new requirements would "continue", there was no deliberate attempt to distort the facts and, in reality, nothing turned on this.

The plaintiff appealed to the Supreme Court on the grounds that the High Court had erred in applying the wrong test for court intervention in such matters and that, on the facts and applying the correct test, the court should intervene.

Held by the Supreme Court (Denham C.J., Murray, Hardiman, Fennelly and O'Donnell JJ.), in allowing the appeal and granting declaratory relief, 1, that, for the court to intervene in the exercise by the Government of its executive functions, the Government had to act in clear disregard of the powers and duties conferred on it by the Constitution. The breach did not have to be blatant or egregious and the intent of the Government was irrelevant as the test was an objective test.

Boland v. An Taoiseach [1974] I.R. 338,Crotty v. An Taoiseach [1987] I.R. 713,McKenna v. An Taoiseach (No. 2) [1995] 2 I.R. 10,T.D. v. Minister for Education [2001] 4 I.R. 259 andCurtin v. Dáil Éireann [2006] IESC 14, [2006] 2 I.R. 556 followed. Associated Provincial Picture Houses, Ld. v. Wednesbury Corporation [1948] 1 K.B. 223, The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642,O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 andHanafin v. Minister for the Environment [1996] 2 I.R. 321 distinguished.

2. That the use by the Government of public funds for a campaign promoting a particular outcome in a referendum was an interference with the democratic process and the constitutional process for the amendment of the Constitution and infringed the concepts of equality, fair procedures and freedom of expression.

McKenna v. An Taoiseach (No. 2) [1995] 2 I.R. 10followed.

3. That a publicly funded Government information campaign in relation to a referendum must be fair, equal and impartial, and it must be neutral, when viewed broadly. In this case, the information in the booklet, website and advertisements published by the first defendant was not fair, equal, impartial or neutral and the Government had thus acted in clear disregard of the powers and duties conferred on it by the Constitution.

McKenna v. An Taoiseach (No. 2) [1995] 2 I.R. 10followed.

Per Denham C.J. (Hardiman, Murray and O'Donnell JJ. concurring): While not everything in the information campaign was objectionable, it was not necessary to conduct a punctilious examination of the minutiae of every piece of material. The cumulative effect of the matters identified in the materials as being unfair, unequal and impartial amounted to a clear disregard of constitutional duties.

Per Murray J.: The best evidence as to whether the material was fair, equal and impartial lay with the text of the material itself. Opinions tendered by witnesses on affidavit did not affect or take away from the interpretation or opinion which the court itself was required to form on the basis of the actual text and narrative contained in the materials when objectively examined by it.

4. That the statements, headings and slogans used in the information campaign were not impartial, equal or fair.

Per Denham C.J. (Hardiman and O'Donnell JJ. concurring): The slogans "Protecting children" and "Supporting families" were clearly...