Analysis:Attorney General will now have to explain where it all went wrong
On Thursday after the Supreme Court delivered its thunderbolt that struck down the Government’s information campaign on the children’s referendum, senior spokespeople from the Coalition were able to hide behind the fact that the court had decided to give a short judgment without setting out its full reasoning, beyond a 500 word precis.
But short though the ruling was on Thursday, there was no doubting its import.
December 11th, when the full judgment is published, will be a deliverance day for the Government with potentially serious questions for the Minister for Children Frances Fitzgerald, Attorney General Máire Whelan, and for the Government as a whole.
The chronology of the crisis had its beginning in the failed referendum campaign of October 2011. Following the failure to give parliamentary committees more power, the Government commissioned research to find out why people voted against the measure. One of the key findings was that voters felt there had been a lack of accessible information despite the presence of the Referendum Commission and its information campaign.
The Government responded by launching its own separate and parallel information campaign for the stability treaty which included a booklet, a website and a Twitter account that alerted people to new material and developments. The strategy was a success and it was decided early in the summer that its “template” would be used for the children’s referendum.
In July, senior officials at the Department of Children met senior officials from the Department of the Taoiseach. The key issues discussed at the meeting was the McKenna judgment.
The High Court was told the campaign had fully adhered to the “strict communications protocols and procedures requiring consultation . . . with the in-house legal adviser and/or the Attorney General’s office”. Clearly, the Supreme Court took a different view.
Scrutinising
The Department of Children and the AG’s office were fully involved in scrutinising the information. What is not known is the extent of the personal involvement of Fitzgerald or Whelan in the process. Will either, or both, be on the hook if the full Supreme Court rulings contain the withering criticisms that some now expect?
While it is clear that the campaign was cleared by the Department of Children and the AG’s office, as one lawyer familiar with the case said: “It is very hard to figure who was involved and what was meant when they said they got clearance from the AG. Was that the office, or the AG herself?”
The passage of the document followed a standard route. It was first vetted and changed by the internal legal adviser in the Department of Children and the amended document was sent to the office of the AG, where it was signed off. Said the source: “It’s impossible to say what the extent of the involvement of the AG was. But then that makes little difference. It is the corporate responsibility of the line Minister or the AG or the Government collectively to take responsibility. There’s no question of moving away from that . . .”
The adverse decision will put Whelan under the spotlight. She is not considered a Bar Council insider and broke a long tradition of UCD lawyers becoming AG upon her appointment in 2011. From Kinvara, Co Galway, the senior counsel is a graduate of NUIG and made her name as a family law practitioner, and also as an author of a scholarly book on Nama.
Whelan will now have to explain how the Government including her office got it so wrong in producing extensive passages in breach of the McKenna principles. In addition, she will have to explain why it took two weeks to remove an error that should have been known about on October 23rd.
Proposed constitutional amendment the wording
Voters will be asked to vote Yes or No to a proposal to include in the Constitution a new Article 42A and at the same time remove the current article 42.5.
The proposed new article reads as follows:
Children: Article 42A
1.The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.
2. 1° In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children, to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.
2.° Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require.
3. Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.
4. 1° Provision shall be made by law that in the resolution of all proceedings –
i. brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or
ii. concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration.
2° Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.
