Page1 Hibernian Law Journal 2015, 14(1), 56-74 Hibernian Law Journal 2015 *56 Fair referendum campaigns in the light of recent Court decisions PATRICIA McKENNA Subject: Electoral process. Other related subjects: Constitutional law Keywords: Campaign expenditure; Constitutionality; Ireland; Referendums; 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 reaffirmed 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 first explore some of the main issues surrounding the McKenna principles, as clarified 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 *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 influence the voters in favour of a ‘Yes’ vote is an interference 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 Page2 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 significant 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 Taoiseach 12 Walsh J held: *58 [i]t is not within the competence of the Government, or indeed the Oireachtas to free themselves from the constraints of the Constitution … They are both creatures of the Constitution and are not empowered to act free from the restraints of the Constitution. To the judicial organ of Government alone is given the power conclusively to decide if there has been a breach of constitutional restraints.13 Hamilton CJ held that the courts could only interfere in the exercise of executive functions if “the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution” 14 and that following Crotty, the court had to ascertain whether the Government's action in this instance was “within its permitted areas of activity and function.” 15 He held that Articles 46 and 47 of the Constitution did not provide Government with a role in the conduct of the referendum. Thus he held that the use of public funds to secure a yes vote “was not an action in pursuance of the executive power of the State”, 16 and that even if it were, it would still be subject to examination and review by the court. 17 There has been some criticism of the use of the clear disregard test in this case, especially in the light of more recent decisions such as TD v Minister for Education.18 In that case Murray J stated that in his view “clear disregard” can only be understood to mean a conscious and deliberate decision by an organ of state to act in breach of its constitutional obligations. 19 Professor Doyle points out that since the executive was acting with the endorsement of the High Court decision in McKenna (No. 1) it is hard to say that it consciously and deliberately acted in bad faith. 20 In the run-up to the Children's Referendum in 2012 the Government allocated €1.1 million to fund a booklet, website and advertisement campaign to provide information on the referendum and to encourage people to vote. In McCrystal the applicant brought proceedings claiming that the information being disseminated to voters was not fair, impartial or neutral and was in fact designed to encourage a yes vote, thus breaching the principles established in McKenna. The Supreme Court held that the information failed the test of being fair, equal, impartial or neutral.21 *59 Must a Constitutional Breach be Deliberate and Conscious? In Boland v An Taoiseach,22 O'Keeffe J implied that the State's actions were not “consciously” 23 intended to breach the Constitution, and that this lack of conscious intent excused any unconstitutional State actions. Fitzgerald CJ adopted a similar position holding that the court may intervene where the executive displayed clear disregard for the Constitution. 24 This reasoning poses a serious question: should the fact that the Government is ignorant of a Constitutional breach be relevant to the courts' ability to intervene? If the State can convince the court of its ignorance then in such instances, all its actions would be free from judicial scrutiny or constitutional constraints. Page3 The question of whether or not a constitutional breach by Government must be deliberate and conscious was brought to the fore in McCrystal. In that case the Government argued that it had at all times endeavored to comply with the McKenna decision. Denham CJ pointed out in McCrystal that the intention of the Government to comply with the court's decision was not being challenged by the plaintiff.25 Accordingly she concluded that “in all circumstances of this case, as have appeared before the court, I am satisfied that the respondents acted in a bona fide manner.” 26 Indeed, Murray J went so far as to say, “the intention of the disseminator of the information is not determinative of the outcome of such scrutiny.” 27 When considering if the information at issue in McCrystal could be considered impartial O'Donnell J dismissed the assertion that simply refraining from making a positive exhortation to vote in a particular way was sufficient. O'Donnell J pointed out that the core of the defendant's case seemed to turn on an insistence that the material published by the Government did not offend the McKenna principles because it did not specifically call for a yes vote.28 This assertion was based on the fact that in McKenna Hamilton CJ had referred to the necessity of establishing “clear disregard”. 29 O'Donnell J held that any analysis of McKenna could not be understood in a narrow sense but rather involved the application of the broad principles of fairness and equality derived from the Constitution. To contend that the judgment asserts a right on the part of the Government to make information available, and merely prohibits blatant or egregious acts of direct advocacy, is an unduly narrow *60 approach to that judgment. It would indeed be peculiar if the most fundamental concepts of fairness and equality operated only to prohibit the use of public funds to advocate a Yes vote, but did not restrain partiality, unfairness and inequality, however pervasive that might be.30 O'Donnell J quoted from O'Flaherty J in McKenna: [i]t is no answer to say, as has been said, that the advocacy … is gentle, bland and mild and is put forward in the context of making a fair effort on the Government's part to put all matters before the people; nor is it an answer to say that the amount involved, £500,000, is only a small amount; it may well be–but even if it is so, the principle is not affected–nor, finally, is it any answer to say that it is either the entitlement or the “duty” of a Government so to educate the public.