Next Saturday, 10 November 2012, the people of the Republic of Ireland will go to the polls on The Children Referendum, to decide whether to approve the Thirty First Amendment of the Constitution (Children) Bill, 2012, which would add a new Article 42A, on Children, to the Constitution.
The referendum has widespread political support, not least from the Department of Children and Youth Affairs. However, the Supreme Court decision in McKenna v An Taoiseach (No 2) [1995] 2 IR 10, [1995] IESC 11 (17 November 1995) places very strict limits on the extent to which the government can campaign on one side of a referendum issue, and in McCrystal v The Minister for Children and Youth Affairs, the applicant argued that a booklet (cover, above left), a website, and advertisements, all published by that Department, had crossed the line drawn in McKenna. His claim failed in the High Court ([2012] IEHC 419 (01 November 2012)), but was successful today on appeal to the Supreme Court [2012] IESC 53 (8 November 2012) (also here via RTÉ) (blogged here by Paul McMahon and here by Laura Cahalane).
In the High Court, Kearns P tabulated the Department’s expenditure of €1.1m; but he held that there was nothing in the Department’s publications which amounted to a clear constitutional abuse or a manifest solicitation to vote in a particular way, and he rejected the plaintiff’s claim. In particular, he took the view that the Department would have to go a very long way to cross the line drawn in McKenna:
The breach complained of must be something blatant and egregious. It must be something which is to be seen or found in the presentation of the proposal and not be a matter which to quote counsel for the defendants, “mires” 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 Government. Such an approach would place the courts in a situation where, having entered into this particular domain, they could be called upon in virtually every referendum to perform some exercise of hyper-zealous vigilance of every piece of information disseminated by Government. I cannot believe the Supreme Court in McKenna (No 2) intended any such consequence. It must be remembered that in McKenna (No 2) the Dáil had voted £500,000 for the express purpose that the same be used in a publicity campaign to encourage a Yes vote.
On appeal, the Supreme Court disagreed. Denham CJ said (with added links):
3. In McKenna v An Taoiseach (No 2) [1995] 2 IR 10, [1995] IESC 11 (17 November 1995) 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. 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.
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 19th Meeting (Venice, 16 December, 2006) and the Venice Commission at its 70th Plenary Session (Venice, 16 – 17 March, 2007) [pdf].
Denham CJ said that the Court had concluded that there are extensive passages in the booklet and website published by the Department which do not conform to the McKenna principles, and that full judgments would be handed down on Tuesday, 11 December 2012. In the meantime, while the Court did not award an injunction as it assumed that the respondents will cease distributing and publishing the material, the Court did grant a
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.
It seems that the Court’s assumption was correct: the Department’s referendum website is now almost empty. The Government has also moved quickly to confirm that the referendum will go ahead on Saturday (Irish Independent | Irish Times).
The tone of Denham CJ’s short judgment today suggests that these are straightforward issues, but the five weeks which the Court has given itself to prepare full judgments in the matter suggest otherwise. On the one hand, having announced the outcome on 16 October 2012, the Court took only 8 days to hand down two detailed judgments in Irish Bank Resolution Corporation Ltd v Quinn Investments Sweden AB [2012] IESC 51 (24 October 2012). On the other hand, having announced the outcome on 31 July 2012, the Court took two and a half months to hand down two complex judgments in Pringle v Government of Ireland [2012] IESC 47 (19 October 2012). If the Court envisages judgments intermediate in detail and complexity between Quinn and Pringle, then that would suggest that some rather knotty issues are to be teased out; and, in my next three posts, I will look at three of them.
At an earlier stage in the referendum campaign, the Minister for Justice, Alan Shatter, criticised strict interpretations of McKenna, and he expressed the hope that the judgment would be revisited in the courts at a future date. Well, be careful what you wish for, Minister. McKenna has indeed been revisited in the courts, and much sooner than he must have anticipated. Whatever the Supreme Court might actually say on 11 December, it is clear that the core of the decision has not only been sustained but also quite stringently applied.
The latin phrase per curiam literally means “by the court”, and the phrase is now used by appellate courts – especially in the United States – to describe an opinion of the whole court as distinct from an opinion written by any one judge. A per curiam is typically curt and unsigned. However, in some notable cases, the US Supreme Court has issued per curiam decisions with concurrences and dissents. In New York Times Co v United States 403 US 713 (1971) (the Pentagon Papers case), six justices expressly concurred with the per curiam, and three expressly dissented. In Snepp v United States 444 US 507 (1980), four Justices dissented from an unsigned per curiam. And in Bush v Gore 531 US 98 (2000), all nine Justices issued or joined opinions which formed various majorities and minorities on the various issues in the case.
I mention this because I think that it will be useful in my subsequent posts to refer to today’s short opinion in McCrystal by the Chief Justice as a per curiam, to which the Court will, on 11 December 2012, issue additional opinions. Indeed, given that the per curiam distinguishes between the “ruling today” and the “judgements” to be given on 11 December, I don’t think it is safe to conclude either that there will only be one judgment, or that they will all go the same way. Since we cannot exclude the possibility of dissents, I don’t think we should assume that the per curiam represents the unanimous view of the Court. There is nothing in the opinion to suggest that it does.
I should also say that I had a very small role in McKenna, in that I advised the plaintiff’s legal team on relevant free speech issues. Although these issues were argued in both the High Court and the Supreme Court, they don’t feature at all in the High Court, and they merited only one – very, very obiter – sentence in the Supreme Court. I’ll return to this point in a comment to my third post in this series.