We have not yet seen the end of the fallout, constitutional and political, from the Government’s mishandling of the children’s referendum. A legal challenge to overturn the Yes vote is due for hearing shortly arising from the Supreme Court ruling in the McCrystal case that the Government’s campaign was neither fair nor neutral.
And today we report that questions have been raised about how Ministers handled legal advice on the drafting of the information booklet that the court later took exception to. A glimpse at the drafting process – and it is only that – made possible by Freedom of Information releases, appears to show an amendment at the suggestion of the Attorney General’s office was subsequently removed in a later draft to restore the original faulty text. By whom? We don’t know, but clearly from within the Department of Children.
After the court ruling the impression was allowed to develop by Ministers that the problem arose because they had followed mistaken advice from the AG’s Office. Minister for Children Frances Fitzgerald said it had been the Government’s intention “at all times” to comply with the McKenna judgment and “all of the normal processes were followed by my own department and by the office of the AG in relation to that.” Minister for Transport Leo Varadkar had added: “Obviously that advice was wrong, but legal advice can be wrong.”
We have not heard from AG Máire Whelan, who, conveniently for Ministers, by tradition does not enter controversy and whose advice is not subject to FOI. We don’t know precisely what the AG advised nor whether the scope of her advice fully met the issues that the court would raise. But surely any decision to disregard such advice, a politically dangerous course, at the least should have been one for the Cabinet as a whole, not an individual Minister? Was it? Or did the Minister act alone? At the very least, Ms Fitzgerald owes a detailed explanation of how and why drafts were changed. It’s called political accountability.