In yesterday’s post, I looked at the background to the per curiam opinion issued by the Supreme Court in McCrystal v The Minister for Children and Youth Affairs [2012] IESC 53 (8 November 2012) (also here via RTÉ) that passages in a booklet and website published by the Department of Children and Youth Affairs fell foul of the prohibition in McKenna v An Taoiseach (No 2) [1995] 2 IR 10, [1995] IESC 11 (17 November 1995). The reasons for that decision will be handed down on Tuesday, 11 December 2012. However, in advance of those judgments, at least three important questions arise on which the judgments of the Supreme Court in McKenna are not as helpful as they might be. First, which particular expenditure is prohibited by McKenna; second, what is the constitutional basis for this prohibition; and, third, what remedies can a court award when the McKenna prohibition is breached? I will look at the first of these questions in this post, and leave the others for subsequent posts (see also the posts here by Paul McMahon and here by Laura Cahalane).

On the question of what expenditure comes within the McKenna prohibition, Hamilton CJ held that government expenditure on “a publicity campaign designed to influence public opinion in relation to [a] proposed referendum” was undemocratic and unconstitutional. Blayney J held that “the Government is not entitled to expend State monies for the purpose of securing an affirmative result in the referendum”. Denham J held that “in expending public monies to campaign for a specific outcome to a referendum the government are not acting within their powers under the Constitution and the law” and that “the government is not entitled to expend public monies for the purpose of promoting a campaign for a particular outcome to a proposed referendum to amend the terms of the Constitution”. And O’Flaherty J held that “it is impermissible for the Government to use public money to advocate a particular result” in a referendum. Egan J dissented on the ground that he could “see no harm whatever in the Government expressing strong views in the matter even if the result may be to influence voters”.

Hence, in describing the McKenna prohibition, there is a strong requirement of intentionality in the judgments of the majority. The unconstitutional expenditure must be “designed to influence public opinion” (Hamilton CJ); it must have as its “purpose” (Blayney and Denham JJ) the “securing [of] an affirmative result in the referendum” (Blayney J) or the “promoting” of a campaign for a “specific” or “particular” outcome (Denham J); it must be such as to “advocate” a particular result (Denham and O’Flaherty JJ). This is emphasised by Keane J in Coughlan v Broadcasting Complaints Commission [2000] IESC 44 (26 January 2000) [167]: “It was solely the expenditure by the Government of public funds with a view to influencing the outcome of the referendum which was found to be unlawful”. And it is echoed in the per curiam in McCrystal that “public funding should not be used in a Referendum to espouse a particular point of view”. (I have added the emphasis in all of these quotes). Design, purpose, advocate, view, espouse – these are words of intentionality, calculation, and forethought. It is therefore clear that some strong notion of intentionality is at the heart of the McKenna prohibition on partisan government expenditure.

If the McKenna prohibition is addressed to intentional partisan government expenditure, then it plainly excludes inadvertent comments from its ambit. In the High Court ([2012] IEHC 419 (01 November 2012)) in McCrystal, Kearns P said that the “breach complained of must be something blatant and egregious” and that the McKenna prohibition did not require the “hyper-zealous vigilance of every piece of information disseminated by Government”. It would not be difficult to hold that an intentional partisan government expenditure is a “blatant and egregious” breach, and if the McKenna prohibition is addressed only to such intentional expenditure and not to inadvertent comments, then there is no need for such hyper-zealous vigilance of government commentary.

Kearns P found as a fact that the Department’s publications did not amount to blatant, egregious or intentional partisan government expenditure. As in Irish Bank Resolution Corporation Ltd v Quinn Investments Sweden AB [2012] IESC 51 (24 October 2012) (blogged here), the Supreme Court has obviously taken a different view of the facts, and we shall have to await their detailed judgments on 11 December to find out exactly why.

There is a related issue which the Supreme Court should address in those judgments. In McKenna, Denham and O’Flaherty JJ held that the everyday actions of government and politicians would likewise not come within the ambit of the McKenna prohibition. Again, in such circumstances, there is no need for what Kearns P called the “hyper-zealous vigilance” of political or governmental action. If this is right, then it would probably have meant that the Minister for Children and Youth Affairs, Frances Fitzgerald, could have joined the members of the Joint Oireachtas Committee on Health and Children at a photocall to call for a Yes vote in the referendum, without falling foul of the McKenna prohibition (though just such a planned photocall was cancelled because it was “potentially in breach” of that prohibition).

However, it is necessary to express with caution the exclusion of everyday political or governmental action from the ambit McKenna principle, lest the exclusion overwhelm the prohibition. Denham J held that her decision did “not infringe upon the right and duty of the government to give information, to clarify situations, or to give explanations and deal with unforeseen matters and emergencies”. She returned to this theme in Coughlan: “The Government has a duty to inform the people of its views. .. It is entirely correct in a democracy that political parties inform people of their views and campaign on the issue. State funding may be allocated to enable a full debate and expended in a fair and constitutional fashion” (para [80]). And all of this seems to me to be unexceptionable. For O’Flaherty J in McKenna, it was “unrealistic to expect a Government to remain neutral on a topic which it has, through its initiative, brought to the people”. As a consequence, he held that the Government “is clearly entitled to spend money in providing information to the public on the implications of the constitutional amendment”. Again, as with Denham J’s comment, so far so unexceptionable. What Barrington J in Hanafin v Minister for the Environment [1996] 2 IR 321, [1996] 2 ILRM 61 [1996] IESC 6 (12 June 1996) characterised as the right and duty of the government to lead the people, and to explain the constitutional amendment at issue in a referendum, combined with Denham J’s dictum in Coughlan (above) that “State funding may be allocated to enable a full debate and expended in a fair and constitutional fashion”, would seem to provide the basis of the Referendum Commission‘s role to explain the subject matter of referendum proposals, to promote public awareness of the referendum, and to encourage the electorate to vote at the poll.

So far, so good. However, O’Flaherty J was prepared to go further, and hold that “the Government, as such, is entitled to campaign for the change and the individual members of the Government are entitled either in their personal, party or ministerial capacities to advocate the proposed change. …”. Indeed, he held that the decision did not preclude Government ministers from using their State transport in relation to the referendum, for from availing of the radio and television and print media to put forward their point of view. He returned to this point in Hanafin:

As regards how a government expends the time and energies of civil servants: this must be peculiarly a matter for the sense of delicacy that has prevailed in our system of government since the foundation of the State, and it would be invidious for the judiciary to attempt to police the relationship that will exist between members of the Government and the civil servants who are employed in particular departments, or by the Government as a whole from time to time, as well as to attempt to define the appropriate duties that should be reposed in them. … The Court should accord the Executive a proper freedom to deploy the time of civil servants. To attempt to set the limits of civil service involvement for the Government as a whole, or a particular Minister, would be to attempt to set boundaries for what is best left to the judgment of members of the Government as well as the civil service when both will be aware of the “discipline and tradition” which is so well established in our administrative culture and which requires that their duties with regard to the protection of the public interest as a whole is never neglected.

Keane J made a similar point in Coughlan. He felt that it was made clear in the judgments in McKenna and Hanafin “that there was nothing to prevent the Government from campaigning, both collectively and as individual ministers, with the utmost vigour to secure a particular result and that this would inevitably involve the use of Government resources at the expense of the taxpayer. … That follows inevitably, in my view, from the central role allotted by the Constitution to the Oireachtas, and by necessary implication the Government, in the referendum process” (para [167]).

I can’t shake the feeling that somewhere in these extracts, O’Flaherty and Keane JJ crossed the line from the neutral provision of information to the partisan advocacy of an outcome, from the day-to-day operation of state resources to the partisan deployment of those resources. I think it very likely that this was the factual ground on which the parties in McCrystal did battle, the applicant asserting that the Department had crossed the line into partisan advocacy, the Department countering that the booklet and website amounted to no more than normal political activity. In the High Court in McCrystal, Kearns P came down on the latter side of the line; but the Supreme Court has obviously taken a different view of the facts (again, as in IBRC v Quinn) and come down on the former side of the line, and we shall have to await their detailed reasons on 11 December to find out exactly why.

Whilst there is a strong prohibition in McKenna on intentional partisan government expenditure designed to achieve a specific result in a referendum, this does not preclude unwitting expenditure which might contribute in some way to that outcome, and there is still a great deal of room for normal political manoeuvre on the part members of the government in advocating that result. In their forthcoming judgments in McCrystal, I hope that the Supreme Court will clarify not only what level of intentionality on the part of the government is required to fall foul of the McKenna prohibition but also where that line between intentional partisan advocacy and normal political activity is to be found, so that it is clear exactly why the Department’s booklet and website fell foul of the McKenna prohibition.