The Government has received "strong" legal advice from the Attorney General that the issue of the McKenna judgment does not kick in until the day the Bill paving the way for the Lisbon Treaty referendum is passed by the Oireachtas, Minister for Foreign Affairs Dermot Ahern has said.
The McKenna judgment refers to the successful case by taken by former Green MEP Patricia McKenna in which the Supreme Court ruled it unconstitutional for the Government to use State funds to favour one side in a referendum.
As a result of that decision, the Government establishes a referendum commission before every referendum, which provides information on both sides of the debate.
Mr Ahern told the Dáil that "the referendum commission will not be able to be up and running any earlier than the day the Bill is published". The commission is expected to print up to 2.5 million booklets and will receive €5.8 million in funding for the referendum.
The Minister was speaking during Foreign Affairs questions in which he rejected Fine Gael claims that the Government was lethargic in moving on the referendum.
Fine Gael spokesman Billy Timmins said "the failure of the Government to name a date for this referendum is creating a vacuum which is of no great assistance to those who support a Yes campaign. The vacuum is allowing much misinformation and inaccurate commentary on the treaty."
Mr Timmins asked: "Does the Minister feel hamstrung, or that his hands are tied behind his back, by the McKenna judgment in that as a Government it cannot go out and promote its view on the issue?"
Mr Ahern said the Attorney General had given "strong" advice that the McKenna judgment did not come into play until the day the Bill establishing the commission was passed by the Dáil and Seanad and signed by the President.
In a statement later, Ms McKenna, who opposes the treaty, said she had begun taking legal advice on the issue and might take legal action. She added that "the Minister's words would indicate that the Government plan to abuse their position and circumvent the principles of the McKenna judgment by delaying calling the referendum until such time as they have influenced people to support the Lisbon Treaty. I believe this would be a clear breach of the McKenna judgment", whose principle was "that public money cannot be used to persuade people to vote in a particular way".
However Mr Ahern rejected any suggestion that State funds were being used to advocate any outcome to the referendum.
Ms McKenna had also called on the Government to publish the advice of the Attorney General.
"If the Government is unwilling to publish this advice then it should at the very least state clearly what it believes the exact legal position is with regard to the use of public monies in the forthcoming referendum."
