Is the Government's referendum 'information' campaign constitutional?

Controversy has erupted surrounding the Government’s use of public funds for an allegedly neutral “information” campaign for the forthcoming referendum on the “Stability Treaty” (aka the Fiscal Compact).

While the Referendum Act 1998 provides for an independent referendum commission to inform voters on proposed amendments, the Government has committed an additional €2million for a separate “information” campaign. This has been spent on a website,, already live, as well as a booklet due to be sent to all households next week, along with a leaflet later in the Campaign.

Sinn Fein has declared it will seek legal advice on the constitutionality of this expenditure. Indeed, while the Government has responded that the campaign is “informative” only and therefore not unconstitutional, it is somewhat odd, to say the least, that it has decided to launch a separate publicly-funded campaign outside of the independent statutory framework that already exists for informing voters.

The basis for any constitutional challenge to the Government’s  campaign is the Supreme Court’s 1995 judgment in McKenna v An Taoiseach (no 2). It ruled unconstitutional the use of public funds for a “Yes” vote in the divorce referendum campaign, for example, “Yes” advertisements in national newspapers. O’Flaherty J said:

“To spend money in this way breaches the equality rights of the citizen enshrined in the constitution as well as having the effect of putting the voting rights of one class of citizen above those of another class of citizen. The public purse must not be expended to espouse a point of view which may be anathema to certain citizens who, of necessity , have contributed to it. No one would suggest that a Government is entitled to devote money from the exchequer in a direct manner in the course of a general election to secure its re-election. The position of a referendum is not any different."

Indeed, the Supreme Court relied on vague, background constitutional principles of popular sovereignty, democracy and equality rather than on any specific provisions on the conduct of referendum campaigns, and so its rather idiosyncratic, standalone judgment has been widely criticised.  Oran Doyle, for example, wrote:

“it is hard to see how the spending of money on one side of a referendum campaign breaches the equality rights of citizens or puts the voting rights of one class of citizen above those of another. Furthermore, citizens can surely have no right to prevent the expenditure of public monies in support of views of which they disapprove.” [Constitutional Law: Text, Cases and Materials (Clarus Press, 2008)]

Nonetheless, McKenna (no 2) remains “good” law, and has informed the reformed methods of voter information ever since.

The Supreme Court held that public expenditure on “promoting” a “Yes” vote was unconstitutional, primarily because it treated unequally those who voted “No”, invaded the jurisdiction of the sovereign “People” and violated an implicit requirement of fairness in the amendment process. However, it did not preclude public expenditure on voter information. Thus, the ruling allowed for the establishment of an independent commission, although the latter’s power to even-handedly summarise “Yes” and “No” arguments was removed in the Referendum (Amendment) Act 2001, emasculating it somewhat.

It goes without saying that the distinction between “information” and propaganda is often dubious. However, a difficulty lies in the fact that first, the Supreme Court did not define the criteria according to which any allegedly non-“neutral” publicly-funded information campaigns would breach constitutional limits. Second, its ruling did not stipulate that constitutionally legitimate “information” campaigns would have to be conducted through independent statutory bodies – it seemed to assume that “content” rather than “source” was determinative of the constitutionality of publicly-funded communications on referenda. The Supreme Court did clarify that the inadvertent use of public facilities such as ministerial cars in conducting “Yes” campaigns did not fall within the scope of the prohibition it formulated; however, it gave little by way of guidance as to what standard of “neutrality” or “impartiality” might be constitutionally required in the context of a publicly-funded information campaign. It did clarify that ministers were entitled to “to avail of the radio and television and print media to put forward their point of view”, while Denham J qualified her ruling in acknowledging “the right and duty of the Government”, in relation to referenda, “to give information, to clarify situations, or to give explanations and deal with unforeseen matters and emergencies”. However these examples are quite far removed from the partly promotional purpose of (see below).

For the most part, therefore, McKenna (no 2) sketched a broad frame of principle which Governments subsequently have been relatively free to interpret. Anticipating whether the Government’s campaign is “unconstitutional” is thus partly speculative. Nonetheless, the Government’s present campaign is undoubtedly sailing close to the constitutional wind. While I have not seen the information booklet to be distributed next week, (which presumably resembles the content of the booklet) mixes “information” with insidious but clear pro-Treaty arguments, containing no counterarguments. Without venturing into high-epistemology, it is clear that the site’s content is interpretive and indeed, promotional, rather than simply descriptive. For example, the site says “The Stability Treaty is part of a package aimed at helping economic recovery and to prevent a repeat of the economic and financial crisis we’ve had in Ireland and Europe in recent years” – without mentioning, however, the countervailing and widespread view (on which I do not comment here) that the Treaty and its underlying assumptions may be economically destructive. It goes on to say: “Ireland needs to have better fiscal rules and institutions to stop this [economic and financial crisis] happening again; the Treaty provides a common framework for all countries which ratify this Treaty, including Eurozone members.” This both openly advocates the treaty, while insinuating that imbalanced budgets were somehow the cause of the Irish recession.  Tellingly, it is full of interpretive, albeit subtle pro-amendment arguments – but without laying out counterarguments. Under the field  “About the Treaty” lies a sub-heading “Why the Treaty?” but with no corresponding set of arguments, Why Not the Treaty?- going on to say:

“Many steps have also been taken to address the problem on a Europe-wide level to encourage recovery and to ensure that the mistakes of the past cannot be repeated. This new Treaty is proposed as an important part of this effort.”

The Government cannot use the façade of “information” to excuse public expenditure on un-countered pro-Treaty arguments. Statements such as the Treaty will “help recovery” or encourage responsible “housekeeping” are not merely informative and descriptive, they are interpretive and highly political.  Denham J said in McKenna (no 2), “To fund one side of a campaign in a referendum so as to enable media coverage and communications to promote a specific outcome, is to treat unequally those who believe to the contrary whether they be a majority or a minority” (emphasis added).

Obviously, the funds committed to creating an “information” website are far less significant than those that will be spent on the leaflet and booklet campaign. On the one hand, it is difficult to see why this matters in terms of the McKenna principle; on the other, if presages the content of the information booklets and leaflets, the Government may have great difficulty in defending the constitutionality of its campaign. The Supreme Court used the phraseology of public expenditure “in the promotion of a particular result”, and the Government’s recently-launched website certainly fits this description, unless McKenna (no 2) is read so narrowly as to frustrate its underlying purpose. As Flaherty J plainly put it, “it is impermissible for the Government to use public money to advocate a particular result in the forthcoming referendum”. The following passage of his judgment, in particular, is ominous for the Government:

“It is no answer to say, as has been said, that the advocacy ["The Government is asking you to vote 'Yes' on November 24th"] is gentle, bland and mild and is put forward in the context of making a fair effort on the Government’s part to put all matters before the people; nor is it an answer to say that the amount involved, £500,000, is only a small amount; it may well be — but, even if it is so, the principle is not affected — nor, finally, is it any answer to say that it is either the entitlement or the “duty” of a Government so to educate the public. If the Government regards itself as having that right or duty, it must exercise it without resort to public funds.”

In any event, it is unclear why it has been thought necessary, in formulating impartial “information” on the treaty, to bypass the independent referendum commission.

We await our “information” booklets with interest. {jathumbnailoff}

Eoin Daly lectures at the School of Law and Government, DCU.

Originally published on Human Rights in Ireland under a Creative Commons by-nc-nd license.