The Department of Equality has failed to answer questions regarding its decision to refuse access to minutes from meetings discussing the proposed amendments to the Constitution, to be put to referendum next month.
In response, Senator Michael McDowell told Gript that the silence from the Department “speaks for itself.”
The Department refused to release the meetings on the basis that to do so would be in breach of the McKenna and McCrystal principles.
The McKenna/McCrystal principles are a set of legal rules governing the conduct of the Irish government in relation to referendums, stemming from two landmark cases decided by the Irish Supreme Court. The McKenna judgement found the right to equality applied to the referendum process, and that spending public money on one side of a referendum put the voting rights of one citizen above another. The case established that the government has a duty to provide information to the electorate in a fair, equal and impartial manner.
The McCrystal case, meanwhile, clarified and applied the McKenna principle to the context of the 2012 referendum on the Thirty-First Amendment to the Constitution (Children) Bill. The Supreme Court ruled that the government had acted wrongfully by using public funds to publish and distribute a booklet, website, and advertisements that were not fair or impartial – but favoured a yes vote.
In response to a recent Freedom of Information (FOI) request submitted by Senator Michael McDowell, Roderic O’Gorman’s Department said it would not be in the “public interest” to publish the minutes of the government’s Interdepartmental Group meetings which considered the proposed amendments to the Constitution, over the course of the last year. Responding, Senator McDowell condemned the “cover up,” saying that from the Department’s point of view, “The public interest requires keeping the public in the dark.”
Senator McDowell said in a statement: “The Department has refused access to all 64 pages of notes and minutes discussing the consequences of the amendments including tax laws, social welfare laws, pension laws, allocation of family assets, alimony and allowance including the
laws in relation to family reunification for asylum seekers. The withheld records include minutes of 16 meetings of the cross-departmental group. The records also include correspondence with an NGO named “Treoir”.
“The Department’s flawed opinion is that to allow access and publish these minutes would be “premature” and might impinge on “the integrity and viability of the referendums”, as “public officials could be seen to promote” referendum outcomes in breach of what the Departments says are the McKenna/McCrystal Principles.”
“The Department apparently wishes to suppress all information in the minutes of the cross-departmental meetings until after the people have voted in the referendum,” Ireland’s former Attorney General said.
“Are the people not entitled to know what the Department of Finance sees as the likely consequences for tax and pension law?” he asked.
“Are the people not entitled to know what the implications are of giving much wider rights for family reunification to asylum seekers and immigrants?” the senior lawyer also queried.
In correspondence with the Department of Equality, Gript asked if it had any response to Senator McDowell’s claim that the Department was deliberately using the McKenna judgement to “cover up” information relating to the referendum. We also asked if the Department’s refusal to provide the information represented a perversion of the democratic process. We received no response from the Department despite repeated attempts to contact Department representatives.
Senator Michael McDowell, when contacted for comment by Gript, said that he “could not understand” the Department’s argument that releasing the minutes of last year’s meetings would somehow be in conflict with the McKenna principles.
“It is strange to claim that the public interest – which they claim they are relying on – requires the public not to be told what the pros and cons of the wording are,” Senator McDowell said.
He said it appeared that Gript was “getting the cold shoulder” from the Department – whilst also referencing Gript reporter Ben Scallan being ignored at a press conference on Tuesday.
Senator McDowell said that silence from the Department “speaks for itself.” He also referred to Minister Roderic O’Gorman this week confirming to Deputy Carol Nolan that he will not publish any of the Interdepartmental Group papers until after the referendums take place.
“Two referendums are planned to take place on 8 March 2024. In line with the McKenna and McCrystal principles on the use of public funds in a referendum, all papers in relation to the work of the Interdepartmental Group are precluded from publication until after the referendum votes have taken place,” Minister O’Gorman said in response to the parliamentary question.
NWCI FUNDING
In addition, the Department refused to answer questions about the National Women’s Council’s (NWCI) funding and its advocacy for a Yes Yes vote in the upcoming referendums. Gript reported earlier this month that 96 per cent of the funding for staff costs of the NWCI have come solely from departmental grants over the last three years.
Given that it appears the Department is largely funding the staff of an organisation which is now leading the YesYes campaign in the upcoming referendums, we asked the Department if it was concerned that the scale of departmental funding for the organisation could call afoul of either the letter or the spirit of the McKenna and McCrystal judgements.
The Department did not respond to that query. Nor did they offer a response when we asked if it would accept that it would be against the spirit of those judgements to have such a publicly funded organisation take on a leadership role in a referendum whilst also accepting such significant core funding from government departments.
Neither did the Department of Equality disclose if it had had any communication from the NWCI regarding the campaign of their role within it.
Senator McDowell also said there was a “false reliance” on the Electoral Commission, explaining that the Department says that the function of the Commission is to provide impartial and accurate information” to the public.
“But the Electoral Commission cannot tell the public what the consequences of the referendums will be for tax laws for family law relating to divisions of family homes, businesses, farms and pension law, criminal law, and succession law to name but some,” the barrister said.
“All the Electoral Commission can do is to tell voters that the courts will have to decide “hard cases” in future disputes,” he added.
Senator McDowell said he rejected the Department’s “flawed reasoning” for refusing public access to the process that led to the constitutional amendments “being rushed through” the Dáil and Seanad by Minister O’Gorman “using guillotine motions to prevent proper debate.”
“The Department’s decision perverts the democratic process which requires giving the people all the facts before they vote in a referendum,” the Independent politician said.
The Senator and prominent commentator further said there was “no justification” for the departmental “cover-up” of the processes and considerations that have led to what he described as “flawed” referendum proposals.