In previous posts, I noted that the Supreme Court in McCrystal v The Minister for Children and Youth Affairs [2012] IESC 53 (8 November 2012) (also here) held that the defendants had acted wrongfully in expending public moneys on a website, booklet and advertisements in relation to the children’s referendum in breach of the prohibition in McKenna v An Taoiseach (No 2) [1995] 2 IR 10, [1995] IESC 11 (17 November 1995), and I explored exactly what was forbidden by the McKenna prohibition on intentional partisan government expenditure (see also the posts here by Paul McMahon and here by Laura Cahalane). In this post, I want to consider the constitutional basis for the that prohibition.

There is a strong strain of democracy running through the majority judgments both in McKenna and in its companion case Hanafin v Minister for the Environment [1996] 2 IR 321, [1996] 2 ILRM 61 [1996] IESC 6 (12 June 1996). For example, in McKenna, Hamilton CJ held:

The role of the People in amending the Constitution cannot be over-emphasized. It is solely their prerogative to amend any provision thereof by way of variation, addition or repeal or to refuse to amend.

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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.…

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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.…

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