Unconstitutional expenditures – VII – The judgments in McCrystal, Part 2

Element of cover of Department of Children and Youth Affairs publication, via the Department's websiteIn McCrystal v The Minister for Children and Youth Affairs [2012] IESC 53 (8 November 2012), the Supreme Court’s per curiam established that the respondents had expended public moneys on a booklet, website, and advertising campaign in relation to a referendum in a manner which was not fair, equal, impartial or neutral. In judgments handed down on 11 December 2012 by Denham CJ, Murray J, Fennelly J, and O’Donnell J (Hardiman J concurring with all four) the Court gave reasons for the conclusions which had been expressed in the per curiam. My analysis of these judgments is in two parts. The first part, in my previous post, considered some of the issues raised in the judgments. The second part, in this post, considers the impact which those judgments have on the issues raised in my earlier posts (I, II, III, IV, V, VI).

From my previous post, it is clear that, in McCrystal, the Supreme Court made two main findings. First, where the Government acts in clear disregard of the Constitution, then the Courts can intervene. Second, arising from McKenna v An Taoiseach (No 2) [1995] 2 IR 10, [1995] IESC 11 (17 November 1995), there is an obligation upon the Government, if it wishes to expend money providing information in relation to a referendum, to do so in a manner that is fair, equal, impartial and neutral. On the facts, the appellant established, on the balance of probabilities, that the Government had acted in clear disregard of its McKenna obligations in undertaking expenditure on a partisan booklet, website and advertising campaign.

In my earlier posts on the McCrystal per curiam, I parsed not only the judgments of the Supreme Court in McKenna, but also the discussion of McKenna in subsequent cases like Hanafin v Minister for the Environment [1996] 2 IR 321, [1996] 2 ILRM 61, [1996] IESC 6 (12 June 1996) and Coughlan v Broadcasting Complaints Commission [2000] 3 IR 1, [2000] IESC 44 (26 January 2000). In McCrystal, however, the members of the Supreme Court contended themselves with analysis simply of McKenna, without reference to its treatment in subsequent cases. Hence, neither Hanafin ror Coughlan is referred to in any judgment except O’Donnell J’s, whose reference to Coughlan is fleeting ([1]) and to Hanafin is for a very specific purpose and not for what it says about McKenna ([1], [40]).

In one of those earlier posts, I sought to determine the ambit of the prohibition in McKenna, and I came to two conclusions. First, it seemed to me that that there was a strong requirement of intentionality in the prohibition stated by the majority in McKenna, by which I meant that the prohibition seemed to me to be addressed to intentional partisan government expenditure. However, there is no hint in the judgments in McCrystal that any of the judges understood such an intentionality requirement to form part of the McKenna prohibition. Indeed, Murray J went so far as to say that “the intention of the disseminator of the information is not determinative of the outcome of” constitutional scrutiny ([34]). Instead, the Court simply held that expenditure on referendum information that is not fair, equal, impartial or neutral is unconstitutional, and they considered whether this standard had been met on the facts.

On the one hand, this is not necessarily fatal to an analysis of an intentionality requirement as an aspect of the prohibition in McKenna. Many of the statements in the judgments in McCrystal are consistent with the view that the court concluded from the evidence not merely that the expenditure was not fair, equal, impartial or neutral, but that it was intended to be so. For example, Denham CJ held that, “on their face” the booklet, website, and advertisements failed the test of being fair, equal, impartial or neutral ([55]). Again, for Murray J “the intended meaning of the textual material is patent” ([42]). Similarly, for Fennelly J, it was also “patent” that the material amounted to “advocacy” ([69]). Such conclusions easily fit within the process of construction of intention from the construction of documents, where basis canons of construction have it that intention is eely assessed from the words used, whether the words being construed are in a Constitution, a statute, a contract, or, as in this case, in advertising material. Moreover, in McCrystal, the Court concluded that the standard to determine whether government had breached a constitutional principle (such as the McKenna prohibition upon expenditure on referendum information that is not fair, equal, impartial or neutral) was the objective one (Denham CJ [30], Murray J [38]) of whether the government had acted in clear disregard of the constitution; and in TD v The Minister for Education [2001] 4 IR 260, [2001] IESC 101, Murray J held that “the phrase ‘clear disregard’ can only be understood to mean a conscious and deliberate decision by the organ of State to act in breach of its constitutional obligation to other parties accompanied by bad faith or recklessness”. So it may be that the approach in McCrystal did not entirely eschew intentionality.

On the other hand, if the Court in McCrystal had understood such a requirement to form part of the McKenna principles, they would surely have said so, given that they said so much else about McKenna – in particular, given that Denham CJ went to such great lengths to derive 9 principles from that case, if she had understood either that the intentionality requirement constituted a tenth principle or that it already formed part of one of the nine, she would doubtless have expressed herself in those terms.

On balance, although I think that, whilst an intentionality requirement may fairly be derived from the judgments in McKenna, its absence from McCrystal means that it has not in fact been so derived. As a consequence, I concluded that, at present, such an intentionality requirement forms no part of the McKenna principles as they are to be understood after McCrystal. The analysis is now directed not to the partisan object of the expenditure but simply to its effect: whether it was fair, equal, impartial and neutral.

The second conclusion to which I came about the ambit of the prohibition in McKenna was that it seemed to me that the Courts had drown a line between the everyday actions of government and politicians which would not come within the ambit of the prohibition, and partisan advocacy, which would. The Court drew this line very starkly in McCrystal. For example, Denham CJ held:

(i) The Government is entitled to campaign for a yes vote by any methods it chooses, other than by the expenditure of public funds. Such methods include writing, speaking, broadcasting, canvassing, leafleting and advertising. Some of these methods, such as writing, speaking, broadcasting on ordinarily scheduled current affairs programmes, and canvassing, are cost free. Others, such as the creation of a dedicated website, leafleting and advertising, involve expenditure. Partisan advertising, that is advertising in one way or another urging a particular result, may be carried out by any person or by an organised group or political party, including parties composing the Government of the day, but it must be done at their own expense. Any ‘information’ disseminated by the Government at public expense must be equal, fair, impartial and neutral.
(ii) The Government is entitled to campaign for the change, and the members of the Government are entitled in their personal, party or Ministerial capacity to advocate the proposed change. Government Ministers may use their State transport in relation to the referendum and may avail of the radio, television and other media to put forward their point of view. However, the Government and its members must not spend public monies in favour of one side. ([37], see also [77](i) and (ii); to like effect, see Murray J [17], [20], [26]-[27]; Fennelly J [20], [25]).

The point is stark. A great deal of latitude is afforded to the members of the government to support one side in a referendum campaign; and it would be naive to expect that it would be otherwise, given the inevitable involvement which the government will have had in bringing the referendum forward in the first place (Murray J [24]-[27]). Indeed, that latitude extends to the expenditure of public funds on information for the referendum, provided that such information is equal, fair, impartial and neutral. The government will have crossed the Rubicon and burned its boats only if it has expended funds on information that is not equal, fair, impartial or neutral.

This line, between unconstitutional expenditure and everything else, has the merit of being the brightest of bright lines. But, in truth, it is actually rather difficult to justify theoretically or logically. For example, in McCystal, O’Donnell J acknowledged that “subtle advocacy may be much more effective than a blatant or egregious advocacy” ([42]):

It is a common observation that a person who is able to frame the debate, particularly if they can put themselves in a trusted position as the purveyor of information, will often succeed. The most valued position in politics, is the appearance of being above politics. The fact that the message here cannot necessarily be described as strident, blatant and egregious, or campaigning advocacy or propaganda, is to miss the point. ([42], see also O’Donnell J [35]; Murray J [52]).

Yet a standard that permits everything short of partisan expenditure plainly allows for a great deal of subtle advocacy on the part of government. In an earlier post, I expressed unease that, in drawing the line between the day-to-day operation of state resources and the partisan deployment of those resources, O’Flaherty J in McKenna and Keane J in Coughlan had put too much on the former side of the line. A standard which prohibits expenditure of public funds on referendum information that is not equal, fair, impartial or neutral, but which permits absolutely everything else, is at least clear as to where the line between partisan advocacy and normal political activity is to be found. But it does not catch the subtle but partisan application of state resources. And this may one day prove to be the seeds of its undoing.

In another of my earlier posts, I sought to identify the constitutional rights and principles which give rise to the prohibition in McKenna. Looking back at it now, it seems to me that the Courts are working towards constitutional principles of democratic participation, perhaps grounded in the doctrine of separation of powers. After McCrystal (Denham CJ [19]-[20], [26], [35]; Murray J [1]-[10], [24]; Fennelly J [19]; O’Donnell J [34]-[35]), that theory is less incohate than it was, but it cannot yet be said to be fully matured. One aspect of this underdevelopment is the ambiguity that surrounds the constitutional rights which are said to give effect to these constitutional principles of democratic participation. For example, in McKenna, Blayney J held that such principles required something akin to fair procedures; and in McCrystal, O’Donnell cast Blayney J’s judgment in terms of “constitutional justice”, which is to say, fair procedures ([37]). Moreover, in McKenna, Denham J went one step further, and from such notions of constitutional justice and fair procedures, she conjured a constitutional right to a democratic process in the holding of a referendum; and she reiterated this in McCrystal ([37](vi); see also Murray J [21]-[22], [28]). But these are not particularly satisfactory analyses: it is hard to cast a right to fair constitutional referendum procedures in sufficiently concrete and meaningful terms. Of far greater explanatory power is the right to an equal franchise. All of the members of the majority in McKenna, and all of the judgments in McCrystal, conclude that this right been breached by the partisan information campaigns at issue in both cases. As Fennelly J put it in McCrystal, the basic principle underlying McKenna is that of equal treatment ([23]; see also Denham CJ [34], [37](iii) and (iv), [77](iii) and (iv); Murray [17]-[20]; Fennelly J [19]-[22]; O’Donnell [36]-[38]). The right to an equal franchise seems to me to be a sufficiently concrete and meaningful means of giving effect to constitutional principles of democratic participation; and it is for this that McKenna and McCrystal ought to be taken as authorities.

In two of my earlier posts (here and here), I considered the kinds of remedies that might be available for breach of the prohibition in McKenna; but McCrystal said very little on this issue. There was no hint, for example, that the applicant had sought an injunction to restrain the holding of the referendum. About the only remedial matter of substance was Murray J’s passing comment that “mala fides may only be relevant to an issue as to whether the Court should issue a mandatory order against a government” rather than merely a declaration ([34], referring to TD v The Minister for Education). But nothing came of this point, since the Court went out of its way to accept the government’s bona fides (Denham CJ [78]-[83]; Murray J [34]; Fennelly [69]), and the applicant seems simply to have sought only declaratory relief in any case. Of course, now that there is a further challenge, remedial issues will doubtless be teased out.

Two final point arise from the judgments in McCrystal. First, on a personal note, I was heartened to see the use of comparative material by Denham CJ ([40]-[51]) and Murray J ([39]), and I look forward to more of the same. Second, given the political opprobrium which had been so heaped upon McKenna that criticism of the decision was a political commonplace even during the referendum campaign that gave rise to McCrystal, I was struck by the fact that the Court in McCrystal had not been invited to reconsider McKenna (Fennelly J [18]; O’Donnell J [3]). Perhaps the government might roll the dice in this respect in the forthcoming challenge, but I think that the time has well passed, and that that particular die is well cast. That being so, McCrystal clarifies many previously obscure aspects of McKenna, and whilst everything might not be McCrystal clear, the line which governments may not cross (they may not expend funds on referendum information that is not equal, fair, impartial or neutral) is more than bright enough to guide them in making decisions as to the conduct of referendum campaigns in the future.

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