vol. 5 Harvard Law Review Hamilton CJ, O Flaherty J, Blayney J, Denham J, Egan J dissenting.

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Phebe Stewart
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1 Introduction The Dáil debates on Tuesday 13 th November saw the Taoiseach remark [n]o court has ever set out specifically what are the parameters, confines and meaning of the McKenna judgment. 1 This came five days after the per curiam decision in McCrystal v The Minster for Children and Youth Affairs 2 was handed down. Whether the law is developed in McCrystal largely turns on the definition of develop. This matter is addressed first. Consequently, three issues were seen to be left unattended from McKenna v An Taoiseach (No.2); 3 the requirement of intention, the scope of the use of funds and the scope of the information campaign. These are all integral elements of McKenna (No.2) and are merely clarified in McCrystal. It may be argued that there are minor developments of the law as will be shown, yet, on the whole, it is evident that the law has not been developed in McCrystal. Definitional Issue Development or growth of the law is the subject of many conflicting theories that form the foundation of philosophical jurisprudential questions. 4 Nevertheless, to develop something can be seen as causing it to grow or expand into a more advanced or mature state. This is the definition that will be attributed to the issues considered in this essay and based on this premise, it will be shown that the law has merely been clarified. The McKenna case McKenna (No.2), decided in the Supreme Court, concerned the spending by the government of 500,000 of public funds to promote a yes vote in the fifteenth amendment (divorce referendum) on November 24th A majority of the Supreme Court 5 held that the Government's use of taxpayers money to promote a yes vote was an interference with the democratic process and an infringement of the concept of equality which is fundamental to the 1 Dáil Debates 13th November 2012 col McCrystal v The Minster for Children and Youth Affairs, The Government of Ireland, Ireland and the Attorney General [2012] IESC McKenna v An Taoiseach [1995] 2 IR Ezra R. Thayer, Judicial Legislation: Its Legitimate Function in the Development of the Common Law (1891) vol. 5 Harvard Law Review Hamilton CJ, O Flaherty J, Blayney J, Denham J, Egan J dissenting. 1

2 democratic nature of the State. 6 Grounding this reasoning in the Constitution, Article 47.1 is being read, inter alia in light of Article 40.1 (equality provision). 7 The McKenna principles The McKenna principles are found in the majority judgments in McKenna (No.2). 8 Although elusive, attempts have been made to formalize the principles. The starkest, provided by Denham CJ in McCrystal, is a list of nine principles that expand on the notions of the right to equality, democratic process, fair procedures and freedom of expression. 9 Moreover, Murray J, also in McCrystal, ostensibly considered the principles to be summarized into just two points; that [t]he right to a fair and democratic process is a right vested in the People and such a right means that the use of funds to promote one side of the referendum would be in breach of that constitutional right. 10 These formulations are not however conclusive. Denham CJ s nine principles were not expressly concurred with by any other judge and the same is to be said for Murray J s overly succinct approach. Although Fennelly J 11 and O Donnell J 12 quoted much from McKenna (No.2), no comparable formulations were made. The McCrystal case McCrystal v The Minister for Children and Youth Affairs concerned the government s campaign in support of the Children s Referendum (thirty-first amendment of the constitution) in that it was purported to advocate a vote in favor of the referendum. The Supreme Court overruled Kearns P in the High Court stating that the Government acted wrongfully in spending public money on a website, booklet and advertisements on the children s referendum in a manner which was not fair, equal, neutral or impartial Coughlan v Broadcasting Complaints Commission, RTÉ and the Attorney General [2000] IESC 44, at para 11, per Denham J. 7 Laura Cahillane, Explaining the Supreme Court Ruling on the Government s Referendum Campaign < (date accessed: 23 February 2013). 8 McKenna (No.2), supra note 3. 9 McCrystal, supra note 2 at para 37, per Denham CJ. 10 Ibid. at para 28, per Murray J. 11 Ibid. at para 18, per Murray J. 12 Ibid. at para 3, 30-38, per O Donnell J. 13 Ibid. at para 76, per Denham CJ. 2

3 Development of the law? It must first be stated that all four judgments in McCrystal expressly confirmed McKenna (No.2) as the relevant law to be applied in these circumstances. Denham CJ noted that the constitutional jurisprudence was stated in McKenna, 14 and Fennelly J further provided that McKenna must be taken to be a fully binding part of our law. 15 Corollary to this, another important fact of McCrystal is that the court was not invited, by either party to the appeal to reconsider, to set aside to any extent, to re-interpret, distinguish or to qualify the decision in McKenna (No.2). 16 This is significant, showing that neither the court by way of express affirmation of McKenna, nor the government (respondent) nor Mr. McCrystal (appellant), doubted the cogency of the McKenna principles. In apportioning simple logic to the situation it seems that the law did not necessarily need developing, instead it merely required clarifying. This is shown through analyzing the three issues left unattended post McKenna (No.2). Clarification of the McKenna principles i) Intention McKenna (No.2) seems to require intention. Here it was seen that the purpose of an information campaign must be to secur[e] an affirmative result in the referendum. 17 Further, such a campaign must be designed to influence a particular outcome. 18 Intention is embedded into the wording of the McKenna principles. This transpires into McCrystal where public funding must not be used to espouse a particular point of view. 19 Also, in terms of the clear disregard test, it was seen in TD v Minister for Education 20 that "clear disregard" 21 can only be understood to mean a conscious and deliberate decision by the organ of state to act in breach of its constitutional obligation to other parties, accompanied by bad faith or recklessness. 22 However, it seems the application of the McKenna principles to the factual matrix of McCrystal precludes intentionality as a requirement. Murray J put it starkly in stating the 14 McCrystal, supra note 2 at para 34, per Denham CJ. 15 Ibid. at para 18, per Fennelly J. 16 Ibid.at para 18, per Fennelly J, quoted by O Donnell j at para McKenna (No.2), supra note 3 at 15, per Keane J. 18 Leo Kohn "The Constitution of the Irish Free State" (Allen and Unwin, 1932), quoted by Denham J in McKenna (No.2) at McCrystal, supra note 2 at para 37, per Denham CJ. 20 TD v Minister for Education [2001] 4 IR Ibid. at 337, per Murray J. 22 Ibid. 3

4 intention of the disseminator of the information is not determinative. 23 Perhaps this is why Denham CJ went out on a limb to recognize the bona fides intention of the government, so as to preclude a requirement of intentionality, recognizing the McKenna principles as something akin to strict liability. 24 In noting that development of the law requires something to expand or grow, it does not seem that merely expounding a requirement of intention in this instance amounts to development. This is of course up for debate, yet no new principles have been developed and nothing has necessarily revoked from the principles. The issue, uncertain as it was post McKenna (No.2), has now been clarified. In this respect it can be said there has been no development of the law. ii) Scope of the use of funds Although not contentious, at the culmination of the judgments in McKenna (No.2) there was still great political maneuverability with regard to government spending. This is presented by O Flaherty J stating that individual members of the government are entitled either in their personal, party or ministerial capacities to advocate the proposed change. 25 This point was expanded in Hanafin v Minister for Education. 26 What is an acceptable use of funds was largely cleared up by Denham CJ in McCrystal. 27 Although issues still exist, for example, to what extent can these be availed of and the fact that subtle advocacy may be much more effective than a blatant or egregious advocacy, 28 it has been clarified perhaps as much as it can be, short of detailing every possible expenditure. In McKenna (No.2), Denham J (as she then was) first discussed this issue. In McCrystal, Denham CJ merely elaborated on and particularized the point. This is not in any sense a development of the law where linear progress in clarifying a point made in a previous judgment is made. The principle already existed, enumerating it is not to be considered development. iii) Scope of the information campaign 23 McCrystal, supra note 2 at para 34, per Murray J. 24 Eoin O Dell, Unconstitutional expenditures VI The judgments in McCrystal, Part 1 < (date accessed: 23 February 2013). 25 McKenna (No.2), supra note 3 at 43, per O Flaherty J. 26 Hanafin v Minister for the Environment [1996] 2 ILRM 161 at 410, per Hamilton CJ. See also Keane J s judgment in Coughlan v Broadcasting Complaints Commission, RTÉ and the Attorney General [2000] IESC McCrystal, supra note 2 at para 37, per Denham CJ. 28 Ibid. at para 42, per O Donnell J. 4

5 The most striking difference between McKenna (No.2) and McCrystal is in the material comprising the information campaign itself. McKenna (No.2) concerned blunt and unambiguous advocacy in the form of government campaign promoting a yes vote. McCrystal on the other hand looked at more subtle advocacy as exemplified in particular by Denham CJ and O Donnell J in their judgments where they parsed the website, information booklet and advertisements of the government s campaign with the aid of expert evidence. In this sense McKenna did not need to consider whether the actual material was designed to favor a particular result and did not do so. 29 As a result McKenna (No.2) does not lay down any criteria for judgment as to whether a particular government campaign infringes the limits laid down in the judgments. McCrystal did not attend this issue in the same fashion as McKenna (No.2). Whether the campaign controverted the McKenna principles is largely a question of fact and is dealt with as such in the judgments. The judgments thus concurred in finding that this subtle advocacy amounted to a contravention of the McKenna principles but did not necessarily develop any further legal principles as to why this was the case. They merely found that the campaign was not fair, equal, neutral or impartial and amounted to a clear disregard of the McKenna principles. What was thus deduced in this sense was the scope of the McKenna principles. The principles in McKenna were found not to be understood as a narrow decision 30 and that the court must take an overall view of the broad thrust and effect of the material at hand. 31 Seeing this as anything other than clarification of the law is a difficult task. The principles in McKenna (No.2) were not expanded or revoked. McCrystal merely confirmed the position from which they were to be read. Some development? i) A Tetrad Test Mr. McCrystal in his submission sought declaration by the court that the government s campaign was not fair, equal or impartial, these being derived from McKenna (No.2). Although a fair derivation, Fennelly J, 32 O Donnell J 33 and Denham CJ added to this tripartite 29 Ibid. at para 51, per Fennelly J. 30 Ibid. at para 38, per O Donnell J. 31 Ibid. at para 34, per Murray J. 32 Ibid. at para Ibid. at para 30, 42. 5

6 test in requiring that the test also includes neutrality. Denham CJ did this potently in stating [t]he McKenna principles require that a publicly funded publication about a referendum must be fair, equal, impartial and neutral. 34 Whether this is a development of the law or not is something that may be debated. On balance however, it seems it is not. The recognition of a fourth principle to be applied in a summary of the McKenna principles is not so landmark that it may be considered a development of the law. In hindsight it can be seen as merely a clarification of the McKenna principles. ii) Semantic development Although merely a semantic exploration, it may very well be argued that on merely applying the law laid down in McKenna, recognizing it as the relevant jurisprudence to be applied in cases alleging misconduct in referenda and applying it to a new factual matrix, the law, by definition has been expanded and therefore developed. This is a feasible although semantic argument and should not be considered. Conclusion In defining the development of something as it growing or expanding into a more advanced or mature state, the decision in McCrystal merely confirmed the McKenna principles and went on to clarify outstanding issues left over from McKenna (No.2). It is, in reality, a subjective concept that can be interpreted in many different ways. The requirement of intention, the scope of the use of funds and the scope of the information campaign as issues outstanding were not developed in McCrystal, nor can any other significant developments be recognized. Subject to this assumption however is the scope of the definition attributed to develop. 34 Ibid.at para 38 per Denham CJ. 6

7 Table of Cases Bibliography Coughlan v Broadcasting Complaints Commission, RTÉ and the Attorney General [2000] IESC 44 Hanafin v The Minister for Environment [1996] 2 ILRM 161 McCrystal v The Minster for Children and Youth Affairs, The Government of Ireland, Ireland and the Attorney General [2012] IESC 53. McKenna v An Taoiseach [1995] 2 IR 10. Articles Ezra R. Thayer, Judicial Legislation: Its Legitimate Function in the Development of the Common Law (1891) vol. 5 Harvard Law Review Laura Cahillane, Explaining the Supreme Court Ruling on the Government s Referendum Campaign < (date accessed: 23 February 2013). Eoin O Dell, Unconstitutional expenditures VI The judgments in McCrystal, Part 1 < (date accessed: 23 February 2013). Parliamentary Debates Dáil Debates 13th November 2012 col

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