Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I wish to inform Deputies that the High Court is currently hearing an application for leave to petition the court under the provisions of the Referendum Act 1994 to question the validity of the provisional referendum certificate issued by the referendum returning officer in respect of the children's referendum poll held on 10 November. That petition stands adjourned until January 2013. The application relates specifically to the provision of public information by the Government and the decision of the Supreme Court regarding that information.

In light of these matters, it is prudent not to make comment that would be prejudicial to proceedings. As a respondent in the proceedings, I am particularly constrained as regards further comment and, at this stage while proceedings are ongoing, it is necessary and prudent for me to restrict my comments.

I participated fully in a Seanad Éireann debate on the Supreme Court decision on 8 November, the day of the decision. I made a detailed statement as part of that debate. No other proceedings were under way at the time. I refer Deputies to that detailed statement. My statement of 8 November acknowledged the errors that had taken place. I reiterate my acknowledgement and regret that these errors took place.

I explained in the Seanad that the Government's information provision was well intentioned and that in preparing information materials, it was considered that appropriate regard had been paid to the McKenna principles.

The full Supreme Court judgments, which are now available, find that the Government acted at all times in a bona fide manner. All the publications were issued with a view to informing the electorate about the referendum. The McKenna judgment stated that the Government has a duty to give information to the electorate as well as to clarify issues which may arise in the course of the campaign, and must do so without advocating a particular position. Governments have carried out this role in other referenda since the McKenna judgment, including in the Lisbon and stability treaty referenda.

The Supreme Court has unanimously acknowledged that the principle enunciated in the McKenna judgment stands as firm as ever. The Government welcomes the fact the court has, for the first time since the judgment in 1995, set down guidelines on the application of this important principle. The modes through which information is now conveyed are very different to those operating in 1995. The court has found that the Government, in attempting to fulfil this duty to inform the people, strayed beyond the boundary of the provision of information to the electorate.

Additional information not given on the floor of the House

I readily accept that we have to look at and implement the lessons to be learned from the successful legal challenge to our information campaign. The Government has stated that it is carefully studying the Supreme Court judgment which clarifies how we can make information available to the electorate during a referendum. I have no doubt that at the appropriate time, there will be considerable debate on these matters in the House. I look forward to participating fully in such a debate when the constraints that currently apply are no longer relevant.

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