On November 10th the nation (well, 33.5%) went to the ballot boxes to cast their vote in the Children’s Referendum. Information on the Referendum had been dispersed throughout the country over the previous few weeks by the Referendum Commission set up in September 2012. The Referendum Commission is an independent body set up to explain the subject matter of referendum proposals and to promote public awareness. However, also dispersed over the weeks prior to November 10th were booklets from the Government itself giving information on the Referendum, including how to access a government website which had links to a Government Facebook page, supposedly all providing us with more neutral, fair and impartial information. This information campaign was being run by the Department of Children and Youth Affairs with 1.1million of public money. This information, it was declared by the Supreme Court on November 8th, two days prior to the Referendum, was not as neutral and unbiased as the public were led to believe. In fact the campaign was described as advocating a yes vote and therefore being in breach of the McKenna principles.
The McKenna principles lay out a Constitutional restriction on the Government: the Government may not expend public moneys on a campaign to influence voters in favour of a particular vote. Such action is contrary to the Constitution impinging on equality, the democratic process, one’s right to fair procedures in the referendum process and freedom of expression. The Government may only utilise public money to provide the public with ‘equal, fair, impartial and neutral information.’ This, arguably, is exactly what the Referendum Commission was established to do, which begs the question, why did the Government need to organise its own information campaign?
Following the Court ruling in November the Government said ‘sorry’ and ceased dispersing the offending information. Two days later the public (58% of the 33.5%) voted in favour of the Referendum. On Tuesday the Supreme Court released its full reasoned opinion on the case (not having had time in November). Chief Justice Denham described the spending as amounting to ‘a clear disregard by the respondents [the Government] of the McKenna principles. The material published by the Minister was not fair, equal, impartial or neutral.’ And this evening the Government said ‘sorry’, again. But what now?
The man who took the case, Mark McCrystal, has been reported as saying ‘heads must roll.’ But who’s head? The Minister for Children and Youth Affairs’, Frances Fitzgerald? The Attorney General’s, Marie Whelan? Both? And if nobody’s head rolls, which is what seems likely, what exactly are the consequences for a Government when it breaks the law? When it acts in violation of the Constitution? When it interferes in one of the most important rights our democracy affords each citizen; the right to participate directly in the law making process? Granted the Court accepted that the Government had acted bona fide, despite a misleading error in the information booklet and on the website brought to the Government’s attention on October 23rd not being corrected until November 7th.
But the suspicions that raises aside, what does this case say about our democracy when the Government can act contrary to principles of democracy and equality enshrined in the Constitution and suffer no consequences? Is ‘sorry, we won’t do it again’ enough? And if it is not enough, what should the consequences be? This raises the most important question of them all; how do we force a Government to abide by the law and respect its people? How do we protect our democracy meaningfully? Because in this writer’s opinion, a judgement a month late and another ‘I’m sorry’ is not enough to guarantee my right to participate in the democratic process on the basis of equality, democracy, fair procedures and effective free expression.