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Ireland's political and cultural magazine
44December-January 2014
POLITICS
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Leprosy 46
Ansbacher 48
W
E will fix that Stalinist body”,
the late Brian Lenihan TD said
to me in the car-park of Athlone
College of Technology following a debate
on the Nice Treaty in . The “Stalinist
body” was the statutory Referendum
Commission. The “Stalinism” seem-
ingly consisted in the Commission being
required to set out the arguments for and
against in referendums
The Referendum Commission was
established following the McKenna
Supreme Court judgment that it is uncon-
stitutional of the Government to spend
taxpayers’ money trying to obtain a par-
ticular result in a referendum.
The fact that the original Referendum
Commission had the job of setting out the
pros and cons of constitutional change
meant that the No-side arguments on
the Nice Treaty had a significant weight
in money behind them for the first time,
through the Commission’s media adver-
tisements. This was a major reason why
voters rejected Nice in .
Of course the Government was anx-
ious to reverse that result in the Nice
referendum. On the last day before
the Oireachtas rose for the Christmas
holidays in December , with just
one day’s notice to the Opposition, the
Government put all stages of a new
Referendum Bill through the Dáil and
Seanad in a couple of hours with the media
and public oblivious. This removed from
the Referendum Commission its function
of preparing and publicising a statement
setting out the relevant Yes-side and
No-side arguments in referendums. It
left the Commission with its other orig-
inal function of informing voters what
the referendum was about. Fine Gael and
Labour opposed this change.
The democratic merit of the
Referendum Commission’s original Yes/
No function was that the Commission had
to be satisfied that the Yes/No arguments
it publicised were validly grounded in the
constitutional change proposed and in
legitimate hopes or fears citizen voters
might have with regard to it. Obvious
fallacies, irrelevancies or ad hominem
arguments were not acceptable to the
Commission, although these are com-
monplace in elections and privately
funded referendum contests.
Another result of the Referendum
Commission losing its Yes/No function
was that when private interests knew
that the arguments on each side would
be put fairly and honestly before the
public through the Commission’s adver-
tisements, big-league private money had
little incentive to get involved. Thus when
an unchanged Nice Treaty was re-run in
, with the Referendum Commission
no longer putting the Yes/No arguments,
private funders, including private com-
panies and State firms, weighed in in a
big way. In Nice , in contrast to Nice ,
Yes-side advertising outweighed No-side
by a factor of ten to one
In the eleven constitutional refer-
endums which were held following the
Supreme Court’s judgment in McKenna
no Irish Government presumed to run
its own ‘information campaign’ along-
side the independent Referendum
Commission’s statutory-based campaign
to inform citizens what the subject-mat-
ter of the referendum was.
This changed with the next EU referen-
dum after Nice, that on the Lisbon Treaty
in .
On that occasion the Government
decided the Referendum Commission’s
campaign was not enough. It sent its own
booklet to every household in the State
with the tendentious title ‘EU Reform
Treaty’ instead of Lisbon Treaty. The
booklet carried the following slogans
on its cover, which clearly amounted
to implicit advocacy: “Effective demo-
cratic union”, “Progress and prosperity”,
Current petition against result of
2012 Children’s Rights referendum
shows unfairness built in to Irish
referendums.
By Anthony Coughlan
Jordanomaly
December-January 2014 45
the divorce poll. Free party broadcasts on
radio and TV then became crucial for the
Yes-side, as all the Dáil parties favoured
Yes. In the week before the poll this led
RTÉ to give minutes of free broad-
casting time to the Yes-side as against
minutes to the Nos.
Even though the present writer was not
involved in the divorce campaign, he went
to court when the poll was over to chal-
lenge what he regarded as the unfairness
of this imbalance in free broadcasting
time. In its Coughlan judgment given four
years later the Supreme Court found that
such imbalance was illegal
under the Broadcasting Acts.
These require broadcasters
to be “fair, impartial and
objective” on issues of pub-
lic controversy and debate
and ”fair to all interests con-
cerned” at all times. Every
citizen is “an interest con-
cerned” in a referendum.
The Supreme Court judg-
ments in McKenna and
Coughlan did not alter the
result of the Divorce refer-
endum which occasioned
them. The Referendum Act
which governs the conduct of
Irish referendums provides
that a petitioner may bring
a referendum challenge if he
or she can show that unlaw-
ful behaviour “materially
affects” the result. In reject-
ing Senator Des Hanafin’s
petition against the divorce
result the Supreme Court
effectively decided that no one can show
conclusively why anyone voted as they
did. The Court declined to “go behind
the backs of the people” and overturn
the divorce result even though the Yes-
side margin of victory was so narrow at
the time – just votes, .% of the
total cast in a voter turnout of %.
A key issue in the Jordan petition is
this: if the Referendum Act requires that
a referendum petitioner must show that
some illegality or unconstitutionality has
“materially affected” the outcome and if
it is the Government itself that has acted
unlawfully, should not the Government
be required to show that its misbehaviour
has not affected the result rather than
the petitioner show that it has affected
it? And if it is impossible for either side
to show the effect of misbehaviour one
way or the other, is not the clause in the
Referendum Act which requires this itself
unconstitutional, because it makes a suc-
cessful referendum challenge arising
from Government illegality or unconsti-
tutionality in principle impossible?
Behind these questions is the more
fundamental one: if Irish Governments
act unconstitutionally or illegally in ref-
erendums, as they have clearly done on
several past occasions, what sanctions
are there or can there be against such
actions? •
Anthony Coughlan was plaintiff in the 2000
Coughlan case on fairness in referendum
broadcasts. He is Associate Professor
Emeritus in Social Policy at TCD.
“Peace and justice in the wider world”, “A
union of values”. Inside it summarised
the provisions of Lisbon under such head-
ings as “Increased democratic controls”
and “Equality between Member States”.
The same happened in Lisbon in
and in the Fiscal Treaty referen-
dum which makes permanent balanced
budgets mandatory for Eurozone States
like Ireland.
These one-sided Government “infor-
mation campaigns” were not challenged
in the courts, but engineer Mark
McCrystal did make a challenge to the
Children’s Rights ref-
erendum. On that occasion
the Supreme Court found
that the Government-issued
booklet was one-sided, con-
tained errors of fact and
constituted a breach of Irish
citizens’ rights to a fair and
democratic referendum.
In its McCrystal judgment
the Supreme Court made
clear that its McKenna
principles accorded with
best international practice
in referendums. It referred
to the ‘Code of Good Practice
in Referendums’ which had
been adopted by an advi-
sory body of the Council of
Europe, and which included
the statement that “Equality
of opportunity must be guar-
anteed for the supporters and
opponents of the proposal
being voted on. This entails
a neutral attitude by admin-
istrative authorities, in particular with
regard to public funding of a campaign
and its actors”.
In the Children’s Rights referendum
the misleading Government ‘informa-
tion campaign’ was continued to the very
eve of the poll. Did it therefore pollute
the Children’s Rights referendum result
such as to invalidate it? This is the issue
raised in the petition against that result
by Joanna Jordan. A seven-judge Supreme
Court heard this petition for five days in
December and will give its judgment in
the New Year.
The Jordan petition echoes the Hanafin
petition on the Divorce referen-
dum. In the Supreme Court ruled
in McKenna that the Government’s
expenditure of £, on Yes-side
advertisements for divorce was unconsti-
tutional. This caused the Government to
pull all its adverts on the weekend before
If it is
impossible for
either side to
show the effect
of misbehaviour
is not the
Referendum
unconsti-
tutional,
because it
makes a
successful
challenge
impossible?
“
BY removing from the statutory Referendum Commission
its original function of setting out the main Yes-
side and No-side arguments on an equal basis the
Government deprived the impecunious opponents of
the Nice Treaty of the advantage of having public money
behind their arguments – something which had hugely
helped them in the first Nice referendum in 2001.
But the Government of the day made the Referendum
Commission serve its objective of reversing Nice 1 in
another way which few people noticed at the time.
Nice 1 had been a referendum to change the
Constitution to permit the State to ratify the Nice
Treaty. In Nice 2 in 2002 the Government coupled
the amendment to permit Nice’s ratification with
a quite separate amendment which precluded the
State from joining an EU defence pact unless it held
a referendum first. These amendments were then put
forward as one joint proposition to which citizens
had to vote either Yes or No, for they could not vote
on either element of the proposition separately.
Thus if citizens wanted to prevent the State joining an
EU defence pact without a referendum, they had to vote
Yes to ratifying the Nice Treaty. If they wanted to vote
No to Nice they had also to vote No to the requirement of
having a referendum before joining an EU defence pact.
It is probable that this two-propositions-in-
one amendment was itself unconstitutional, but
no one came forward to challenge it in court.
The Referendum Commission carried out its
new functions fairly, but the dual character of its
explanations of this “trick” amendment necessarily
helped pile up votes for the Yes side in Nice 2. The
Commission’s No-side advertisements helped the
No-side in Nice 1. Its explanations of the two-in-
one amendment helped the Yes-side in Nice 2.
These steps to change the role of the Referendum
Commission were crucial to the Government turning
voters’ No to Nice in 2001 into a Yes to Nice in 2002.
Referendum Commission in Nice 2 helped
turn around Nice 1
