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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. Blayney J held that “the Government is not entitled to expend State monies for the purpose of securing an affirmative result in the referendum”. Denham J held that “in expending public monies to campaign for a specific outcome to a referendum the government are not acting within their powers under the Constitution and the law” and that “the government is not entitled to expend public monies for the purpose of promoting a campaign for a particular outcome to a proposed referendum to amend the terms of the Constitution”. And O’Flaherty J held that “it is impermissible for the Government to use public money to advocate a particular result” in a referendum. Egan J dissented on the ground that he could “see no harm whatever in the Government expressing strong views in the matter even if the result may be to influence voters”.

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This House would see Unseen University Run By Witches!

The above image is a poster (pdf here and here) for a public debate next Monday evening which is hosted by School of English, Trinity College Dublin, in association with Lively Conversation Debate Topics. On the night, staff and students of Trinity College Dublin will debate the motion

That This House Would See Unseen University Run by Witches

Ably Adjudicated by Professor Sir Terry Pratchett, OBE, Blackboard Monitor, the debate will be held at 6:30pm, next Monday, 12th November 2012, in Quek Hall, Trinity Biomedical Sciences Institute, Pearse Street, Dublin 2 (map here).

There are 300 seats in the lecture theatre, and they will be filled on a first come, first seated, basis.

Unconstitutional expenditures – I

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. Read more

Quinns and Gowns – Contempt and Respect

A little late (because of the rebuild and ongoing redesign of the blog, on which all comments are gratefully appreciated) I want to focus on a busy week for the Irish Supreme Court. The week before last, not only did the Court have its full roster of hearings and judgments, but the judges of the Court also made a small piece of history by stepping out in new gowns. At the beginning of the last judicial year, the wearing of wigs by judges became optional, and most have since abandoned the horsehair. At the time, I posed the question, with wigs gone, whether a revamp of judicial gowns would be far behind. It wasn’t. As Dearbhail McDonald reports, fashion designer Louise Kennedy has designed new, simplified, judicial gowns. They were commissioned in 2009, but put on hold in 2010 for financial reasons, and have now been introduced at least at the level of the Supreme Court (more coverage: Irish Times | Sunday Business Post | theJournal.ie). As Dearbhail wrote (with added links):

New gunas for judges — now for real reform

… The new European style robes are more than a costume change — they mark a major (long overdue) symbolic break with the English tradition. … The new gowns are welcome, but their introduction pales in comparison with the widespread reforms needed in our courts. … New Chief Justice Susan Denham has argued for the introduction of a Civil Court of Appeal and specialist courts that would alleviate the burden of cases on the Supreme Court. …

(For the benefit of non-Irish readers, the word “gunas” in the headline is, I think, an attempt by the sub-editor at multi-lingual wordplay. The word “gúna” (pronounced “goo-nah”) is the Irish word for “dress” or “gown”; the plural in Irish would be “gúnaí”, pronounced “goo-nee”. The sub was plainly going for an aural link between “gown” and “gúna”, and thus between “gowns” and “gúnas” (pronounced, presumably “goo-nahs”). I’m not sure that the attempt at multi-lingual wordplay was all that successful, but never mind).

The simplification of judicial court dress is to be welcomed, but I would pause at this point. Court proceedings are serious matters, and some dignity and ceremony – including some formality of regalia on the part of court actors – are entirely appropriate (see Rob McQueen “Of Wigs and Gowns: A Short History of Legal and Judicial Dress in Australia” (1999) 16(1) Law in Context 31; reprinted Federation Press Digital Edition 2008). In many ways, they are symbolic of the respect to which the Courts and their orders are entitled. One of the new gowns’ first outings was when the Supreme Court handed down their judgments in Irish Bank Resolution Corporation Ltd v Quinn Investments Sweden AB, and others [2012] IESC 51 (24 October 2012), a case concerning contempt of court and the failure of three businessmen to respect orders of the courts.

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Combating Cyberbullying – updated

Further to my post on fighting anonymity with anonymity: open justice and cyberbullying and the tragedies of Amanda Todd, Ciara Pugsley, and Erin Gallagher, RTÉ news reports that a national youth organisation, SpunOut.ie, has issued guidelines on how to combat cyber and text-bullying:

If you are experiencing this form of bullying, it’s vital you don’t suffer in silence. Also, if you have witnessed cyberbullying, it’s important that you take action and address the problem.

Read the Office for Internet Safety’s Guide to cyberbullying, which includes information on when and how to contact service providers if you are being cyberbullied.

Two key pieces of advice from the SpunOut.ie page:

• Don’t reply to the messages, but don’t delete them either: save them as proof.
• Don’t stay quiet about the bullying: tell someone you can trust and who can help you and give you support.

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And the dance goes on

In my previous post, I discussed a temporary injunction obtained by music promoter David Kavanagh to prevent the sale of Melanie Verwoerd‘s memoir When We Dance. The book charts her Afrikaner upbringing, her marriage to the grandson of an architect of apartheid, her anti-apartheid involvement with the African National Congress, her time as South African ambassador to Ireland and as head of UNICEF Ireland, and her relationship with celebrity DJ Gerry Ryan until his unexpected death on the night of 29 April 2010.

When the matter was due to return to the High Court, Laffoy J was told that it had been settled on the basis of a statement which would be read out in court and would be inserted as an erratum slip into the books when they go on sale (see Irish Independent | Irish Times).

The statement said that Ms Verwoerd was happy to acknowledge that Mr Kavanagh was and remained a good friend of Gerry Ryan, that it was to Mr Kavanagh that Gerry turned for help shortly before his untimely death, and that Mr Kavanagh had indicated he would help in whatever way he could to alleviate the financial pressure on Gerry. The statement added: “Melanie Verwoerd does not and never has suggested that Mr Kavanagh behaved in any way inappropriately on April 29, 2010″.

I’m glad that the book is now on sale, but the interesting legal questions raised in my previous post remain unresolved. We shall have to await another case to learn the precise extent to which the high hurdles set by section 33(1) of the Defamation Act, 2009 (also here) will actually be applied even to interim and interlocutory applications such as the one made by My Kavanagh in this case. The parties to this litigation danced a stately gavotte, but I can foresee circumstances in which the application might have the character of a more frenetic quickstep, and clear judicial guidance will be necessary if decisions are not to be taken out of (dub)step with the Act.

When we dance to the High Court for an injunction

I have written before on this blog about prior restraints and temporary and permanent injunctions in defamation cases. Not long after the South African Constitutional Court effectively outlawed prior restraint in that jurisdiction (see Print Media South Africa v Minister of Home Affairs [2012] ZACC 22 (28 September 2012); blogged here), I learn that Gilligan J in the High Court in Ireland has today granted temporary injunctions to prevent the sale of a memoir written by the South African partner of a deceased celebrity Irish DJ (cover left):

Gerry Ryan biography will not go sale after court challenge
Melanie’s book on Gerry Ryan pulled off shelves in court row
Melanie memoir pulled from shelves
Publication of Gerry Ryan book delayed pending court action
Publication of Verwoerd book on Ryan restrained
Verwoerd book put on hold following court hearing
Verwoerd book put on hold following court hearing

Given the parties involved, it is unsurprising that there is intense media interest in the case. However, the legal issues are interesting too. Section 33 of the Defamation Act, 2009 (also here) provides:

(1) The High Court … may, upon the application of the plaintiff, make an order prohibiting the publication or further publication of the statement in respect of which the application was made if in its opinion—
(a) the statement is defamatory, and
(b) the defendant has no defence to the action that is reasonably likely to succeed.

Paragraphs (a) and (b) set a relatively high threshold which a plaintiff has to meet before an order prohibiting publication can be made. Since subsection (3) says that “order” in sub-section (1) includes interim (s33(3)(a)) and interlocutory (s33(3)(b)) orders, then the only jurisdictional basis on which Gilligan J could have granted an interim order this morning would have been if he had been satisfied that the high threshold set by paragraphs (a) and (b) of s33(1) had been cleared. Moreover, it is clear that section 33 has to be interpreted in the light of the protections of freedom of expression by the Constitution and the European Convention on Human Rights. In particular, since such a temporary injunction constitutes a prior restraint upon speech, applications for interim or interlocutory injunctions in defamation cases must be scrutinised with particular care. To take only one example from many, in Evans v Carlyle [2008] 2 ILRM 359, [2008] IEHC 143 (08 May 2008) Hedigan J held that a court should grant an order pursuant to section 33

… warily and cautiously. It should bear in mind the importance and centrality of freedom of expression in the democratic process. The right to freedom of expression is protected both by Article 10 of the European Convention on Human Rights and by Article 40.6.1. of the Irish Constitution. The court, therefore, should be very slow to restrict, either prior to or after publication, the continuing exercise of this right.

Gilligan J declined to grant the orders sought by the plaintiff ex parte yesterday evening, insisting that the defendants be put on notice of an application this morning, when they consented to an order prohibiting publication, sale or distribution of the book until the matter comes back before the court on October 24. At that stage, to maintain the order, the plaintiff will have to establish that the high threshold set by section 33(1) has indeed been cleared, and it will be very interesting indeed to see if he succeeds in doing so.

A practical and proportionate remedy?

Last week, the Minister for Education and Skills, Ruairí Quinn, announced his intention to “introduce new legislation which will oblige universities to comply with government pay policy”:

Some €7.5 million in unapproved and unauthorised payments paid out by universities from 2005-2009

The Minister for Education and Skills has secured government agreement for the drafting of an amendment to the Universities Act 1997. This amendment will give the Minister the power to require universities to comply with government guidelines on remuneration, allowances, pensions and staffing numbers in the University sector. It will further address issues which have arisen in relation to the non-adherence to elements of the Croke Park Agreement. …

The heads of the relevant Bill are here (pdf), and they are discussed as follows on Steve Hedley‘s Ninth Level Ireland blog:

Universities behaving badly? Send in the clowns!

… The focus is on compliance with a “policy decision made by the Government or the Minister in so far it relates to the remuneration or numbers of public servants employed in that university, or a collective agreement entered into by the Government or the Minister”. The powers now given to the minister are: (1) To make a direction requiring compliance; (2) To send in an investigator to check on compliance and make a report; (3) On receipt of such a report, to make a specific direction to the institution reported on; and (4) If the minister considers that there is non-compliance or “serious deficiencies” in the area, to transfer university functions in that area to someone of the minster’s choosing. This transfer can be for up to 2 years.

… the result is a dog’s breakfast of provisions, which makes it entirely unclear where responsibility for hiring policy lies. A university may appoint “such and so many persons to be its employees as it thinks appropriate, having regard to” a number of matters (Universities Act, 1997, s.25(1) [the Act is linked and summarized here]). One of the things it must “have regard to” is guidelines from the HEA, but that does not mean it must do what the HEA says – the guidelines are explicitly stated to be non-binding, and the government cannot make compliance a condition of the receipt of public money (s.50(2)). Yet under the new legislation, the university must comply with a “policy decision” in respect of numbers (new s.20A(2)), and any ministerial “direction” on the matter (new s.20C(2)). (Presumably the Employment Control Framework is one such policy, even though it did not emanate from the DES, and presumably the minister’s expressed opinion about what it requires are “directions”, even if others have different opinions.) There is no mention of the HEA in that part of the new legislation – the minister need not even tell the HEA what he is up to, let alone consult them in a meaningful way. If this legislation is in place, it is entirely unclear who has responsibility for the size or shape of the universities. Perhaps that is the idea.

… a great deal more thought will have to go into … [the Bill] if the result is not to be chaos.

In the Minister’s press release, this was described as a set of “practical and proportionate remedies”. For the reasons Steve gives, I don’t think that it is.