The validity of Saturday’s constitutional referendum on child protection has been put in doubt after the Supreme Court ruled that information provided by the 26 County government was biased and misleading.
The referendum amends several sections of the Irish constitution to give greater powers to state agencies to act on behalf of children in care.
An official informational pamphlet and website were found to be “not fair, equal or impartial”, as required by the constitution and a previous Supreme Court judgement.
The failure to provide balanced referendum information reflects the typical ‘railroading’ strategy of Dublin governments to constitutional change, a strategy which has occasionally backfired in the past.
Thursday’s judgment, which was unexpected, was seen as a significant setback to the ‘Yes’ campaign, coming only 48 hours ahead of polling.
Minister for Transport Leo Varadkar today said the government accepts responsibility for the Supreme Court finding, but appealed to voters not to “punish” it by voting ‘No’.
The referendum had been expected to pass easily. Only one TD, Independent Mattie McGrath opposed it, while former MEP Kathy Sinnott and newspaper columnist John Waters were among very few public ‘No’ campaigners. They have argued that the proposed changes would erode the rights of parents and allow the state to “break up” families by facilitating the adoption of children in care.
Minister Varadkar said the government would examine the Supreme Court judgment next month to consider “what mistakes were made”.
“The judgment relates solely to the Government’s information campaign - it doesn’t relate to the Yes campaign,” he said.
He rejected calls for the vote to be rescheduled. “All of the good reasons for voting Yes stand,” he insisted.
Varadkar admitted the government had not even considered postponing the referendum, despite the furore.
“This amendment is 20 years overdue, there are children in long-term foster care relying on us to vote Yes, there are also thousands of people who are victims of abuse who’s voices aren’t being heard, who’s interests aren’t paramount and don’t blame them for a mistake made by the government,” Mr Varadkar said.
Lawyer Malachy Steenson said the court’s judgment had created a constitutional crisis.
“We have moved from being a democracy to being a dictatorship because what role now does the Supreme Court have if the government -- having being found to have breached the law, to act unconstitutionally -- two days before a referendum, when it was quite clear right throughout this campaign that what the government was doing was in breach of [the] McKenna [judgment].”
In its 500-word ruling the Supreme Court said “extensive passages in the booklet and on the website” did not conform to the McKenna principles, named after a seminal legal challenge by former Dublin MEP Patricia McKenna.
The court also pointed to the Department of Children’s own admission there was an error or “mis-statement” in the booklet and website.
No campaigner John Waters accused the government of “effectively misappropriating” public funds to produce “propaganda” on the referendum.
Five Independent TDs called for the referendum to be deferred after the ruling. One, Shane Ross, said it was too late to correct the imbalance and called for emergency legislation to pass through the Dail today. “Put it off for three months and have a fair referendum in fair circumstances,” he said.
Sinn Féin Children spokesperson Caoimhghin O Caolain TD said the judgement was “significant” but did not take from the need for a ‘Yes’ vote on Saturday.
“It would be a setback for children if reaction to this court outcome were to jeopardise the adoption of the proposed constitutional amendment on children’s rights and I again urge people to vote ‘Yes’ on Saturday,” he said.
Polling stations for those entitled to vote will be open across the 26 Counties from 9am to 10pm tomorrow. Counting of ballots will begin at 9am on Sunday.