WRONGFUL SPENDING on the divorce referendum campaign by the Government resulted in support towards a Yes vote shifting by at least 3 to 5 per cent, the High Court challenge to the outcome of the referendum, which began yesterday, claims.
The claim, by a former senator, Mr Des Hanafin, is being contested by the State, which denies that the impact of the alleged Government interference in the democratic process was calculated to or did shift, or could be proved to have shifted, support towards a Yes vote by the alleged or any margin.
Mr Hanafin's challenge is being heard by a three judge divisional court of the High Court and is expected to last for about two weeks. He wants orders declaring the November referendum null and void and a direction that a new referendum be held.
Mr Hanafin also claims that advertising in favour of a Yes vote in the referendum continued on the Internet following the Supreme Court ruling in the action taken by Ms Patricia McKenna, the Green Party MEP. That ruling, given a week before polling day, was that the Government was wrong in spending money to secure a Yes vote.
The State says that the sovereign will of the people was expressed in the referendum and denies that there was obstruction or interference with the conduct of the referendum within the meaning of Section 43 of the Referendum Act.
It also denies that any public funds were spent on the alleged or any advertisements on the Internet by the Government or any person or body acting on its behalf. It denies that the alleged or any advertisements on the Internet constituted interference by the Government in the conduct of the referendum.
The action, which is the first of its kind brought under the 1994 Referendum Act, is being heard by Mr Justice Murphy, Mr Justice Lynch and Mr Justice Barr. The State is expected to make a preliminary application to try to the case dismissed.
In his petition, Mr Hanafin claims that the Government sought wrongfully to influence the outcome of the referendum by deliberate and calculated expenditure of public monies and funds for the purposes of mounting an advertising campaign to advocate support for the referendum.
The Government invited tenders from advertising consultants. It selected QMP Advertising to act on its behalf to develop, promote and advise the Government on the best manner of conducting a campaign to persuade the electorate to support the proposal to amend the Constitution.
In the McKenna case, Mr Hanafin contends, the Supreme Court held that the Government had acted in disregard of the provisions of the Constitution and the law in the manner in which it submitted the amendment to the people. Accordingly, the Supreme Court had been obliged to intervene to prevent the continuance of the wrongful expenditure of such public monies.
In the light of the Supreme Court ruling, Mr Hanafin submits, the Government acted unconstitutionally, unlawfully and wrongfully in directing public monies to be spent on advocating a Yes vote. It is submitted that over £250,000 was spent by the Government to support a partisan, trenchant campaign" seeking to persuade the electorate to vote Yes.
Following the decision in the McKenna case, it is submitted the Government permitted one of its "offensive" advertisements to be published in the Sunday World of November 19th last.
After the Supreme Court judgment, the Government permitted advertising to continue on the Internet computer network system. This contained details of the Government's advertisements advocating a Yes vote.
Mr Hanafin maintains that the Government spent money through inter alia, the Department of Equality and Law Reform. He states that he believes further monies were channelled by the Government through the Council for the Status of Women and the Irish Countrywomen's Association to facilitate propaganda in favour of a Yes campaign.
The role of the Government in its advertising process was of particular significance given the remarkably close final vote, which revealed a majority of approximately 0.56 per cent between the Yes and No vote.
The State, in its submission, denies that there was obstruction of, or interference with, the conduct of the referendum, or an irregularity in the conduct of the poll within the meaning of Section 43 of the Act, as alleged.
It denies that the Government sought wrongfully to influence the outcome of the referendum by a deliberate or calculated expenditure of public funds for the alleged or any purpose.
It admits that the Government invited tenders from advertising consultants and selected one firm to act on its behalf to develop promote and advise the Government on the best manner of conducting an advertising campaign to give factual information with regard to the proposal which was the subject of the referendum, to express the Government's views thereon and to urge acceptance of such views.
The State denies that the Government's action in mounting the advertising campaign was, or was found to be, an unconstitutional interference with the democratic process. Rather, what was found by the Supreme Court to be unconstitutional in the McKenna case was the expenditure of public funds for the purpose of promoting the campaign.
In relation to the Sunday World advertisement, the State says that, following the Supreme Court decision, an employee of QMP Advertising, acting on instructions from the Department of Equality and Law reform, telephoned the offices of the newspaper to withdraw the advertisement which was due to appear on November 19th. However, the caller was informed that the edition of the newspaper for that date had already gone to press and that the advertisement could not be withdrawn.
The State denies that the alleged or any advertisements on the Internet were in defiance of the Supreme Court decision. It denies that the alleged or any Internet advertisements were intended to or calculated to or did affect the outcome of the referendum.
It is pleaded that the expenditure of approximately £480,000 had been incurred by the Government prior to the decision in the McKenna case.
It is admitted that some £8,000 was paid by the Government to the Council for the Status of Women for the purpose of the referendum campaign, but it is denied that this was to facilitate or promote "propaganda in favour of a Yes campaign", as alleged. It is denied that monies were paid to the ICA.
The hearing continues today.