The Government will be relieved the public has backed the constitutional amendment to secure children’s rights, but also disappointed by the result. This was not the ringing endorsement it had sought. The victory margin was less than anticipated, and the Government’s success remains tainted by last week’s Supreme Court judgment. The court found it had “acted wrongfully” in spending public money on an information booklet that was not “fair, equal or impartial”.
Despite the court’s ruling that the Government had acted unconstitutionally, the public backed the amendment but on a low turnout. Just one in three of the electorate voted, while fewer than one in five voters endorsed the proposed change.
Nevertheless, it was a historic day for children, with this formal public affirmation of their constitutional rights. As for the Government, the result can be seen as a somewhat hollow victory. The amendment was supported by an overwhelming political and public consensus: all political parties in the Dáil, many non-governmental organisations and the media in general. On polling day, however, much of that support had evaporated.
Early analysis of the vote suggests a surprising division in society, with stronger than expected opposition to the amendment apparent in some rural and working class areas. This may well indicate a growing lack of public trust in government and parliament, which would confirm a worrying trend apparent in opinion polls in recent years. Certainly, the Government’s conduct of the referendum campaign did nothing to increase the level of public trust. Likewise some claims within the No side which aroused undue concerns among voters.
Indeed, it may well have contributed both to the low turnout and to a higher than expected No vote. Above all, the campaign has raised major questions about the Government’s political judgment, and questions too about the legal advice given by the Attorney General on which it acted.
For the Government it was never clear why a referendum campaign that commanded such wide public consensus needed a distinct contribution from government, via its information booklet sent to all voters. Since the McKenna judgment in 1995, which said public money should not be spent to advance a particular side in a referendum campaign, the guideline set was clear. A government could use taxpayers’ money to inform voters; it could not do so to turn information provision into advocacy favouring one side. The Supreme Court, despite the Attorney General’s advice, found the Government had crossed the dividing line between information and advocacy. The Government did not need to run that risk. It could, and should, have left the Referendum Commission to perform its role of information provision. One consequence is that governments may now find it harder to win future referendums. How much harder may be revealed next month when the Supreme Court produces its written judgment.