The Supreme Court has ruled today in the McCrystal case that the government-funded information campaign on the Children’s Rights referendum violated the constitutional requirement of impartiality. The Court seems to have reaffirmed and endorsed its previous decision in McKenna v. Ireland (No. 2) ( 2 IR 10; available here), but we will have to wait for written judgments. (UPDATE: A written version of the ruling is now here; reasons to come in December).
The referendum will go ahead on Saturday, but more litigation would be inevitable in the event of a narrow “yes” vote. The McKenna decision, which concerned the divorce referendum, provides a historical example. After McKenna, the divorce amendment went ahead and was narrowly passed. The challengers then sought to have the result set aside. The Supreme Court, however, concluded that the challengers had failed to establish a “material effect” on the outcome of the referendum, and rejected the challenge (Hanafin v. Minister for the Environment  2 ILRM 61; available here).
Such speculation about future litigation is probably an academic exercise on my part. (I am an academic, after all.) Though the “no” campaign will get a boost from today’s decision, the “yes” campaign seems likely to prevail comfortably. In that event, the challengers’ hopes of establishing a “material effect” would be all but destroyed.
Still, this is an embarrassing defeat for the government. In future referendum campaigns, the government will have to be more careful or–as Kearns P suggested in the High Court last week–it could choose to leave information campaigns to the (impartial) Referendum Commission.