McKenna v. An Taoiseach (No. 2)

Factual and Procedural Background

The Appellant brought High Court proceedings seeking multiple declarations and injunctions aimed at restraining the Government from spending public monies to advocate a “Yes” vote in an upcoming referendum on amending Article 41 of the Constitution to permit divorce. The High Court (Judge [Last Name]) dismissed the claim on 31 October 1995, holding that the matter was non-justiciable because it concerned an exercise of executive power approved by the legislature. The Appellant appealed to the Supreme Court, which delivered the instant decision.

Legal Issues Presented

1. Whether the Government is constitutionally entitled to expend public funds to promote a particular outcome (“Yes” vote) in a constitutional referendum.
2. Whether the courts have jurisdiction to restrain such expenditure as an unconstitutional exercise of executive power.

Arguments of the Parties

Appellant’s Arguments

• Government expenditure favouring one side of a referendum campaign violates the constitutional principles of equality, freedom of expression and fair democratic procedure.
• The Referendum Act 1994 and Articles 46–47 allocate no role to the Government in advocating a result; the only permissible spending is the neutral administration of the poll.
• The courts must intervene where executive action clearly disregards constitutional limits.

Government’s Arguments

• The executive may legitimately “let its view be known” and, if thought appropriate, urge voters to adopt that view, including by using public funds.
• Past practice shows Government funding of referendum information campaigns is lawful and does not infringe any individual right.
• The allocation of State monies is a matter for the Executive and the Oireachtas and is not justiciable.

Table of Precedents Cited

Court's Reasoning and Analysis

The Supreme Court majority began by reaffirming the separation of powers: the executive may act freely only within the confines of the Constitution. While the Government can disseminate factual information and express its preference, spending public money to influence voters is not part of the “executive power of the State” envisaged by Article 28.

Examining the referendum mechanism in Articles 46 and 47 and the Referendum Act 1994, the Court noted that responsibility for prescribing voter information lies with the Oireachtas and the Minister for the Environment, not the Government. Consequently, State-funded advocacy for a “Yes” vote intrudes upon the people’s exclusive prerogative to amend the Constitution.

The Court applied equality and fair-procedure principles, finding that State-financed one-sided advocacy tilts the electoral field and infringes citizens’ right to equal treatment and free expression. Because public monies are contributed by all citizens, using them to advance one viewpoint compels dissenting citizens to finance opposing beliefs.

Invoking Crotty and Boland, the Court held that this constituted a “clear disregard” of constitutional limits, thereby triggering judicial intervention. It declared the expenditure unconstitutional and granted relief. One judge dissented, viewing the matter as lying within executive discretion once monies were validly voted by the legislature.

Holding and Implications

Appeal ALLOWED. The Supreme Court declared that the Government’s use of public funds to promote a particular outcome in a constitutional referendum is unconstitutional and beyond its powers.

Implications: The decision prohibits future Governments from deploying State resources to advocate one side in referendum campaigns, reinforcing equality, safeguarding the democratic process, and clarifying judicial oversight where executive action infringes constitutional boundaries.