Impact of the McCrystal Case on the result of the Children’s Rights Referendum

In its decision last Thursday in the McCrystal case, the Supreme Court held that the government had acted contrary to the principles in the McKenna judgment (1995) in spending public money on publicity that was considered to support the ‘Yes’ side in Saturday’s referendum on children’s rights. Under the McKenna principles, the government is entitled to campaign in a referendum but is prohibited from using taxpayers’ money for this purpose.

An immediate consequence of last Thursday’s decision was that the government had to discontinue its publicity campaign.  A question that now arises is whether the defeated ‘No’ campaigners can challenge the outcome of the referendum based on the fact that the government had violated the McKenna principles. However it seems unlikely that any such challenge would succeed. In the McKenna decision itself, the Supreme Court, by a majority, ruled that the government had acted unconstitutionally in spending public money calling for a ‘Yes’ vote in the 1995 divorce referendum. The proposal to permit divorce was passed by a very narrow majority and this outcome was challenged in the courts by a prominent ‘No’ campaigner, Des Hanafin, who relied on the ruling in the McKenna case. However the Supreme Court held that in order to set aside the decision of the people, Mr. Hanafin would have to show that the government had interfered unlawfully in the conduct of the referendum process and that this materially affected the outcome of the vote. The Court held that he was unable to establish that the government’s actions had materially affected the eventual result and so his case was dismissed. The same difficulty of having to prove that the government’s publicity campaign influenced some voters to vote ‘Yes’  confronts any ‘No’ campaigner who might wish to challenge Saturday’s result and so it is unlikely that any such challenge will be successful.

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