By Anthony Coughlan.
We 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 2001. The “Stalinist body” was the statutory Referendum Commission. The “Stalinism” seemingly consisted in the Commission being required to set out the arguments for and against in referendums
The Referendum Commission was established following the 1995 McKenna Supreme Court judgment that it is unconstitutional of the Government to spend taxpayers’ money trying to obtain a particular 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 advertisements. This was a major reason why voters rejected Nice in 2001.
Of course the Government was anxious to reverse that result in the Nice 2 referendum. On the last day before the Oireachtas rose for the Christmas holidays in December 2001, 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 original 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 commonplace 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 advertisements, big-league private money had little incentive to get involved. Thus when an unchanged Nice Treaty was re-run in 2002, with the Referendum Commission no longer putting the Yes/No arguments, private funders, including private companies and State firms, weighed in in a big way. In Nice 2, in contrast to Nice 1, Yes-side advertising outweighed No-side by a factor of ten to one
In the eleven constitutional referendums which were held following the Supreme Court’s judgment in McKenna no Irish Government presumed to run its own ‘information campaign’ alongside the independent Referendum Commission’s statutory-based campaign to inform citizens what the subject-matter of the referendum was.
This changed with the next EU referendum after Nice, that on the Lisbon Treaty in 2008.
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 democratic union”, “Progress and prosperity”, “Peace and justice in the wider world”, “A union of values”. Inside it summarised the provisions of Lisbon under such headings as “Increased democratic controls” and “Equality between Member States”. The same happened in Lisbon 2 in 2009 and in the 2012 Fiscal Treaty referendum which makes permanent balanced budgets mandatory for Eurozone States like Ireland.
These one-sided Government “information campaigns” were not challenged in the courts, but engineer Mark McCrystal did make a challenge to the 2012 Children’s Rights referendum. On that occasion the Supreme Court found that the Government-issued booklet was one-sided, contained 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 1995 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 advisory body of the Council of Europe, and which included the statement that “Equality of opportunity must be guaranteed for the supporters and opponents of the proposal being voted on. This entails a neutral attitude by administrative authorities, in particular with regard to public funding of a campaign and its actors”.
In the Children’s Rights referendum the misleading Government ‘information 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 1995 Divorce referendum. In 1995 the Supreme Court ruled in McKenna that the Government’s expenditure of £500,000 on Yes-side advertisements for divorce was unconstitutional. This caused the Government to pull all its adverts on the weekend before 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 42 minutes of free broadcasting time to the Yes-side as against 10 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 challenge 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 public controversy and debate and ”fair to all interests concerned” at all times. Every citizen is “an interest concerned” in a referendum.
The Supreme Court judgments in McKenna and Coughlan did not alter the result of the Divorce referendum 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 unlawful behaviour “materially affects” the result. In rejecting 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 9000 votes, 0.6% of the total cast in a voter turnout of 62%.
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 successful referendum challenge arising from Government illegality or unconstitutionality in principle impossible?
Behind these questions is the more fundamental one: if Irish Governments act unconstitutionally or illegally in referendums, as they have clearly done on several past occasions, what sanctions are there or can there be against such actions? •
Referendum Commission in Nice 2 helped turn around Nice 1
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.
Anthony Coughlan was plaintiff in the 2000 Coughlan case on fairness in referendum broadcasts. He is Associate Professor Emeritus in Social Policy at TCD.