Unconstitutional expenditures – II – the ambit of the McKenna prohibition
In yesterday’s post, I looked at the background to the per curiam opinion issued by the Supreme Court in McCrystal v The Minister for Children and Youth Affairs [2012] IESC 53 (8 November 2012) (also here via RTÉ) that passages in a booklet and website published by the Department of Children and Youth Affairs fell foul of the prohibition in McKenna v An Taoiseach (No 2) [1995] 2 IR 10, [1995] IESC 11 (17 November 1995). The reasons for that decision will be handed down on Tuesday, 11 December 2012. However, in advance of those judgments, at least three important questions arise on which the judgments of the Supreme Court in McKenna are not as helpful as they might be. First, which particular expenditure is prohibited by McKenna; second, what is the constitutional basis for this prohibition; and, third, what remedies can a court award when the McKenna prohibition is breached? I will look at the first of these questions in this post, and leave the others for subsequent posts (see also the posts here by Paul McMahon and here by Laura Cahalane).
On the question of what expenditure comes within the McKenna prohibition, Hamilton CJ held that government expenditure on “a publicity campaign designed to influence public opinion in relation to [a] proposed referendum” was undemocratic and unconstitutional.…