IN the run up to the divorce referendum it appeared from documents that regular civil servants seemed to be excluded and that Mr Fergus Finlay, programme manager to the Tanaiste, and a group with him appeared to have taken over the running of the publicly funded campaign, it was alleged in the High Court yesterday.
Mr Peter Kelly SC, for Mr Hanafin, said that under the Referendum Act, 1994, the petitioner had to demonstrate two things: firstly, that there was wrongdoing by obstruction, interference or irregularity; and, secondly, that the wrongdoing resulted in materially affecting the result.
Mr Justice Murphy asked what the position would be if it was a political party which was using the funds. Mr Kelly said that there was no objection to that.
Mr Justice Barr asked if he would accept that it was a Government Minister's entitlement to put forward his or her view as a Government Minister and as the Government. Mr Kelly said that they were entitled to put their view, but they were not entitled to canvass for a particular result.
Mr Justice Lynch said that the only decision in the Supreme Court McKenna judgment was the declaration that the Government, in expending public funds on the promotion of a Yes vote, was in breach of the Constitution. The judgment debated a lot of other things, but decided nothing else.
Mr Kelly, who read parts of the judgments of the four agreeing Supreme Court judges, said that the judgment was a "sheet anchor" for at least two propositions being put to the court. It had been established that Government action in expending public funds to induce the public to vote Yes was unconstitutional, unlawful, and constituted an interference within court procedures. It was also one of the interferences under the Referendum Act.
It established beyond `yea or nay" that this was wrongful and interfered with citizens' rights to have a free, equal vote with equality of information.
Mr Kelly then referred to the background to the referendum. He said that, dating back to 1993, a number of advertising agencies had been written to by the Department of Equality and Law Reform through the Government Information Service, asking them to consider making presentations on a campaign for the divorce referendum.
In April, 1994, the list had been narrowed down to two agencies, one of which was Quinn McDonnell Pattison Ltd. In 1995, the Department had commissioned opinion polls through MRBI in March, October and November. These had been paid for by the State.
The two advertising agencies were asked in June, 1995, to make presentations (QMP, which was actually awarded the contract, and another) to a Government sub committee attended by the Ministers for Health, Equality and Law Reform, Justice, the Attorney General, Mr Phil Hogan TD and Senator Pat Magner.
Mr Kelly submitted that, although there were two agencies vying for work, it seemed clear that one had already been given the commission, as there was a letter from Mr Conor Quinn, of the agency, dated May 4th, 1995, to Mr Fergus Finlay in the Department of Foreign Affairs, the programme manager to the Tanaiste.
In the letter, said Mr Kelly, Mr Quinn referred to "our appointment" and also to a family connection". Mr Quinn said that the agency was a highly respected firm with major clients. It had never received any favourable treatment from the Labour Party and the family connection had merely served to exclude it.
Mr Quinn, in the letter, said that the agency's appointment should be "low key" and "buried" in a press release.
Mr Kelly said that, from the documents, there seemed to be in relation to the campaign a clear dichotomy between the regular serving civil servants and other special advisers and programme managers. This had resulted in a situation where regular civil servants seemed to be excluded and Mr Finlay and a group with him appeared to have taken over the running of the publicly funded campaign.
Also, it appeared that what was called a Government liaison group was meeting members of the Right to Remarry Campaign.
The Attorney General, Mr Dermot Gleeson SC, said that he was unable to equate the facts or figures with the points of claim.