Today’s Supreme Court judgment is a major surprise particularly two days away from a referendum that we have been campaigning for since the1990s. The case involved a challenge to the Government information campaign on the Children’s Referendum, which is taking place on Saturday 10 November 2012.
The Government is prohibited from spending public monies to achieve a particular result in a referendum because of Patricia McKenna’s case from the 1990s. While the Supreme Court was satisfied in today’s judgment that not all aspects of the Government’s website and information breached the McKenna principles, it held that public money was wrongfully spent on the booklet and website, which contained extensive passages that were not fair, equal or impartial.
What are the implications of the judgment?
The Government is required to cease distributing and publishing this material which it has already done. This does not mean that there is an information gap. The independent Referendum Commission has run an excellent information campaign and its booklet has been delivered to every house in the county.
Will the referendum go ahead?
The referendum will go ahead on Saturday as planned. And this has been confirmed by the Government. The Court confirmed that the substance of the referendum proposal is a matter for the people alone. It stated that: “The Constitution belongs to the people and may be amended only by the people in a Referendum”. The Supreme Court was not asked to make any ruling on the wording of the proposed constitutional amendment.
Could Saturday’s referendum result be challenged?
That is certainly possible since under the 1994 Referendum Act an individual can petition a referendum outcome if it is established that the result was affected materially. However, such a challenge in this case is likely be unsuccessful. It would be difficult to prove that the referendum outcome was materially affected. It’s also unclear as to what impact, if any, the Government’s information campaign has had, given the existence of the Referendum Commission, balanced media reporting and an engaging Yes/No debate. It’s also worth pointing out that the Government’s information material did not urge a yes vote, in contrast to the material deemed unconstitutional in the McKenna judgment in 1995.
In summary, we the people can go to the polls on Saturday and be confident that the result will not be overturned at a later stage. And it is important that we do go to the polls and vote YES in this referendum. The reasons for this referendum are still as pertinent today as they were yesterday.