The children’s referendum will go ahead tomorrow despite the decision by the Supreme Court that the Government’s information booklet and website was “not fair, equal or impartial”.
In a decision that was portrayed by the Opposition and No campaigners as an acute political embarrassment for the Government, the five-judge division of the court ruled it had “acted wrongfully” in spending €1.1 million of public money on a booklet that breached the McKenna judgment, which held public money should not be spent to espouse a particular side in a referendum campaign.
The judgment, which was unexpected, was seen as a significant setback to the Yes campaign, coming only 48 hours ahead of polling. Voting on a number of islands off the west coast had already commenced ahead of the decision.
In its 500-word ruling (it will deliver its full reasoned ruling on December 11th) the Supreme Court said “extensive passages in the booklet and on the website” did not conform to the McKenna principles.
The court also pointed to the Department of Children’s own admission there was an error or “mis-statement” in the booklet and website.
Yesterday, the solicitor for Mark McCrystal, the Dublin engineer who took the challenge, said the ruling was unanimous and criticised the Department of Children for its delay in correcting the error on its website.
Colm MacGeehin said the department was aware of the error on October 31st but did not correct its website until November 7th, on the second day of the Supreme Court hearing.
The department acknowledged the delay yesterday. A spokeswoman also confirmed that the booklet and website had been thoroughly examined for compliance with the McKenna judgment since August by its internal legal advisers and also by the office of Attorney General Máire Whelan.
Call for delay
Five Independent TDs called for the referendum to be deferred after the ruling. One, Shane Ross, said it was too late to correct the imbalance and called for emergency legislation to pass through the Dáil today. “Put it off for three months and have a fair referendum in fair circumstances,” he said.
However, Government sources said that under the Referendum Act 1994, the only way in which the poll could be deferred was if a general election was called.
Polling stations for those entitled to vote in the referendum will be open across the State from 9am to 10pm tomorrow. Counting of ballots will begin at 9am on Sunday.
Minister for Children Frances Fitgerald defended the Government’s decision to run a separate information campaign to that of the Referendum Commission, saying that people in the past had criticised the Government for not supplying enough information.
Fianna Fáil’s spokesman on children Robert Troy said the Government’s “failure to ensure fairness and impartiality” was “frustrating and disappointing” but this should not distract from the “core issues”.
Prominent No campaigner, columnist John Waters, accused the Government of “effectively misappropriating” public funds to produce “propaganda” on the referendum.