Robert Troy (Longford-Westmeath, Fianna Fail)
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To ask the Minister for Children and Youth Affairs her response to the Supreme Court judgement that her Department acted in breach of the Constitution during the recent Children’s Referendum; and if she will make a statement on the matter. [56975/12]

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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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.

Robert Troy (Longford-Westmeath, Fianna Fail)
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It is deplorable that it has taken the Minister six weeks to give a response in this House to queries regarding the Supreme Court ruling. The argument that she has responded in the Seanad is interesting given her party's commitment to abolish that House. It is only now, six weeks after the ruling, that we in this House are being given an opportunity to obtain some measure of feedback on this very serious issue. The court issued a declaration that the respondent, that is, the Government, had acted wrongfully in expending or arranging to expend public moneys on a website, booklet and advertisements for the purposes of promoting a particular result in the referendum on the 31st amendment to the Constitution. The Chief Justice, Mrs. Justice Denham, and her fellow judges found that on applying the correct test to the material published by the Minister, there was a "clear disregard" by the respondents of the McKenna principles. The Chief Justice found, moreover, that the material "failed the test of being fair, equal and impartial, failed to be neutral, and failed to hold the scale equally between both sides". This is a damning indictment by the most senior judicial figure in the land of the Government's role in the referendum.

I have several relevant and direct questions which I hope the Minister will answer in a similarly direct fashion. Who took the decision to publish the booklet? Who took the decision to hive off the €1.1 million that should have been allocated to the independent referendum commission? Who signed off on the content of the booklet? Shortly after the Supreme Court decision, there was an effort by certain Ministers to dump the responsibility on the Attorney General, but the Supreme Court judgment does not reflect that claim. What are the cost implications for the State, apart from the direct expenditure of €1.1 million, of all of this? Finally, who will take responsibility and be held accountable for this deplorable situation?

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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I remind the Deputy that the Government is defending a petition in the High Court. Recognising the separation of Parliament and Judiciary, moreover, I have no wish to, and will not, prejudice the upcoming hearings. I am sure my parliamentary colleagues will respect and accept the position I am in.

Ms Justice Denham stated in regard to the case: "In all the circumstances of this case, as have appeared before the court, I am satisfied that the respondents acted in a bone fide manner." Mr. Justice Fennelly observed: "I have no doubt that this was done bona fide and with consciousness that the decision in McKenna had to be respected." Likewise, Mr. Justice O'Donnell stated: "It should be said that the plaintiff made it clear that he was prepared to accept that the Department had acted in good faith in preparing the campaign and did not challenge it on that ground." I refer the Deputy to those aspects of the Supreme Court's findings.

Robert Troy (Longford-Westmeath, Fianna Fail)
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In his verdict, Mr. Justice O'Donnell pointed out that some of the language used in this so-called independent literature was the same language used in the Minister's speech at the launch of the Fine Gael campaign for a "Yes" vote. As a Fine Gael parliamentarian the Minister was entitled, as I was as a Fianna Fáil parliamentarian, to advocate a "Yes" vote, but why was it the same language? If there was bona fides in terms of the wording used in the independent booklet, why did she use the same language in a Fine Gael document? My personal opinion is that this was a political stunt on the Minister's part.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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It certainly was not. In fact, the highest court in the land disagrees with what the Deputy said and accepts the bona fides of myself and my Department in this regard. However, I accept that the Government, as the court has found, in attempting to fulfil its duty to inform the people strayed beyond the boundary in the provision of information to the electorate. I readily accept and acknowledge that we must examine and implement the lessons to be learned from the successful legal challenge to the Government's information campaign. The Government has said that it is carefully studying the Supreme Court judgment which clarifies, for the first time since 1995, how the Government can make information available to the electorate during a referendum. At the appropriate time there will be considerable debate on these matters in the House and I look forward to participating in that debate, when the constraints that apply today are no longer relevant.