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Children's Rights Referendum (Continued)

Tuesday, 18 December 2012

Dáil Éireann Debate
Vol. 787 No. 3

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(Speaker Continuing)

[Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald] I explained in the Seanad that the Government's information provision was well intentioned and that in preparing information materials, it was considered that appropriate regard had been paid to the McKenna principles.

  The full Supreme Court judgments, which are now available, find that the Government acted at all times in a bona fide manner. All the publications were issued with a view to informing the electorate about the referendum. The McKenna judgment stated that the Government has a duty to give information to the electorate as well as to clarify issues which may arise in the course of the campaign, and must do so without advocating a particular position. Governments have carried out this role in other referenda since the McKenna judgment, including in the Lisbon and stability treaty referenda.

  The Supreme Court has unanimously acknowledged that the principle enunciated in the McKenna judgment stands as firm as ever. The Government welcomes the fact the court has, for the first time since the judgment in 1995, set down guidelines on the application of this important principle. The modes through which information is now conveyed are very different to those operating in 1995. The court has found that the Government, in attempting to fulfil this duty to inform the people, strayed beyond the boundary of the provision of information to the electorate.

  Additional information not given on the floor of the House

  I readily accept that we have to look at and implement the lessons to be learned from the successful legal challenge to our information campaign. The Government has stated that it is carefully studying the Supreme Court judgment which clarifies how we can make information available to the electorate during a referendum. I have no doubt that at the appropriate time, there will be considerable debate on these matters in the House. I look forward to participating fully in such a debate when the constraints that currently apply are no longer relevant.

Deputy Robert Troy: Information on Robert Troy Zoom on Robert Troy It is deplorable that it has taken the Minister six weeks to give a response in this House to queries regarding the Supreme Court ruling. The argument that she has responded in the Seanad is interesting given her party's commitment to abolish that House. It is only now, six weeks after the ruling, that we in this House are being given an opportunity to obtain some measure of feedback on this very serious issue. The court issued a declaration that the respondent, that is, the Government, had acted wrongfully in expending or arranging to expend public moneys on a website, booklet and advertisements for the purposes of promoting a particular result in the referendum on the 31st amendment to the Constitution. The Chief Justice, Mrs. Justice Denham, and her fellow judges found that on applying the correct test to the material published by the Minister, there was a "clear disregard" by the respondents of the McKenna principles. The Chief Justice found, moreover, that the material "failed the test of being fair, equal and impartial, failed to be neutral, and failed to hold the scale equally between both sides". This is a damning indictment by the most senior judicial figure in the land of the Government's role in the referendum.

I have several relevant and direct questions which I hope the Minister will answer in a similarly direct fashion. Who took the decision to publish the booklet? Who took the decision to hive off the €1.1 million that should have been allocated to the independent referendum commission? Who signed off on the content of the booklet? Shortly after the Supreme Court decision, there was an effort by certain Ministers to dump the responsibility on the Attorney General, but the Supreme Court judgment does not reflect that claim. What are the cost implications for the State, apart from the direct expenditure of €1.1 million, of all of this? Finally, who will take responsibility and be held accountable for this deplorable situation?

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald I remind the Deputy that the Government is defending a petition in the High Court. Recognising the separation of Parliament and Judiciary, moreover, I have no wish to, and will not, prejudice the upcoming hearings. I am sure my parliamentary colleagues will respect and accept the position I am in.

Ms Justice Denham stated in regard to the case: "In all the circumstances of this case, as have appeared before the court, I am satisfied that the respondents acted in a bona fide manner." Mr. Justice Fennelly observed: "I have no doubt that this was done bona fide and with consciousness that the decision in McKenna had to be respected." Likewise, Mr. Justice O'Donnell stated: "It should be said that the plaintiff made it clear that he was prepared to accept that the Department had acted in good faith in preparing the campaign and did not challenge it on that ground." I refer the Deputy to those aspects of the Supreme Court's findings.


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