Written answers

Tuesday, 18 December 2012

Department of Children and Youth Affairs

Children's Rights Referendum

Photo of Michael ColreavyMichael Colreavy (Sligo-North Leitrim, Sinn Fein)
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To ask the Minister for Children and Youth Affairs her views on the McCrystal judgement in the Supreme Court last week; and if she will make a statement on the matter. [56782/12]

Photo of Frances FitzgeraldFrances Fitzgerald (Dublin Mid West, Fine Gael)
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I have said on many occasions before now, and remain firmly of the view, that Saturday 10th November was a historic day for the children and families of this country. I believe that the decision the people made on that day has the potential to benefit children in legislative, practice and cultural changes relating to the protection and welfare of children and the support of families through many years to come.

The Supreme Court identified two primary issues in the appeal by Mr. McCrystal against the decision of the High Court. First of these was a consideration of the test to be applied to trigger court intervention. Secondly, an application of the test and the McKenna principles to the material published by my Department. The Court considered, and pronounced on, the inherent characteristics of the McKenna case and how a ‘clear disregard’ of these would be identified. It considered ‘clear disregard’ to be an objective test and ruled that the High Court had erred in the test it had applied by way of a breach being blatant and egregious. While in its application of the test, the Court noted that not everything in the advertisements, information booklet and website was objectionable under the McKenna principles, it ruled that the cumulative effect of matters identified in these materials, and set out in its judgement, amounts to a clear disregard of the McKenna principles.

The judgement in McKenna 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. It has in fact carried out this role in other Referendums since the McKenna Judgement. The Government welcomes the fact that the Supreme Court has, for the first time since the judgement in 1995, provided some guidelines on the application of this important principle.

The Court unanimously acknowledged that the principle enunciated in the McKenna judgement stands as firm as ever, but the modes through which information is conveyed are very different to those which were 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.

The Court found that the Government at all times acted in a bona fide manner , and all the publications were issued with a view to informing the electorate about the referendum. That being said the failures identified by the Supreme Court are fully acknowledged and greatly regretted.

I readily accept that we have to look at, and implement, the lessons to be learned from how we got here in terms of the referendum process, as regards the successful legal challenge to the Government’s information campaign. The Government has stated that it is carefully studying the Supreme Court Judgement which clarifies how the Government can make information available to the electorate during a referendum.

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