The Government intends to hold seven referendums over the next two years, and the Citizens’ Convention is due to consider Ireland’s referendum practice before it winds up next spring. With a contentious abortion referendum looming up soon after that, this is a good time to consider how we run referendums.
A code of good practice in referendums was adopted in 2007 by the Council of Europe’s Venice Commission for Democracy through Law. The Supreme Court cited this code in its 2012 McCrystal judgment which found that a Government information booklet in the children’s rights referendum of that year contained significant errors and ruled that it had to be withdrawn.
Referendums in Ireland are forms of direct legislation in which citizens vote on a Bill to amend the Constitution, the basic law of the State. It is the citizens, not TDs and Senators, who are making the law on these occasions.
Once an issue is put before the People for decision, the Government, as Government, should not interfere. It should not, for example, spend public money, which comes from voters on both sides in a referendum, to push the side it favours, any more than it should be able to loot the Exchequer to bribe voters in elections. Of course the political parties that make up the Government can spend their own money for partisan purposes, but that is different from the Government, as Government, doing so.
Between 1987 and 1995 Irish Governments massively abused the referendum process.
In 1987 the Supreme Court in its Crotty judgment on the Single European Act (SEA) required the Government to put any treaty that entailed a surrender of sovereignty before the People for decision. As the People are the repositories of sovereignty, only they can surrender it – in the case of the SEA to the supranational EU. Voters at the time would have passed the SEA referendum comfortably, but to make assurance doubly sure the Charles Haughey-led Government of the day spent taxpayers’ money in full-page newpaper adverts: ‘Ten Reasons for Voting Yes’. This had never been done before in any of the eleven referendums that had been held since the Constitution was adopted in 1937.
The same thing happened in the 1992 Maastricht Treaty referendum on replacing the púnt with the euro. On that occasion the Albert Reynolds-led Government commissioned a private company to place the Vote Yes adverts. One of them read: ‘A Vote No Disempowers Women’! Patricia McKenna put a stop to this abuse of public funds by taking her famous case in the context of the 1995 Divorce Referendum.
The Council of Europe’s Code of Good Practice in Referendums accords with the Supreme Court’s ruling in McKenna that partisan expenditure of public money in referendums is unconstitutional, undemocratic and unfair. The Government’s response was to establish a new statutory body, the Referendum Commission, to give citizens information in referendums. The 1998 Referendum Act that established the Referendum Commission charged it with producing and publicising two statements, one telling citizens what the referendum was about, and the other setting out the main arguments for and against the proposed constitutional amendment.
The Referendum Commission is not a permanent body, although idealy it should be, as its UK equivalent is. It is called into being anew every time there is a referendum and the Government appoints a new chairman each time. Its four regular members are the Ombudsman, the Comptroller and Auditor General and the Clerks of the Dáil and Seanad. On the Commission’s first outings in the 1998 Amsterdam Treaty and Good Friday Agreement referendums and the 2001 and 2002 Nice Treaty referendums its chairman was Mr Justice T.A. Finlay. As a retired Chief Justice he was not open to subsequent Government patronage. Both sides recognised that Justice Finlay carried out his statutory duties impeccably. Since 2001 successive Referendum Commission chairmen have all been High Court judges, of which, unfortunately, the same cannot be said.
When citizen-voters rejected the constitutional amendment to ratify the EU’s Nice Treaty in 2001 the Bertie Ahern-led Government of the day removed from the Referendum Commission its function of setting out the main Yes-side and No-side arguments. It did so because it judged that that had been too helpful to the No-side in Nice One and it wanted that function removed for the referendum re-run in Nice Two in 2002 so as to get a different result. With one day’s notice to the Opposition, the Government put all stages of the requisite change to the Referendum Act through both houses of the Oireachtas in a single day, the last day before rising for the Christmas holidays in December 2001, when most people were concentrating on the seasonal festivities. Fine Gael, Labour and the Greens voted against the change.
Setting out the main pros and cons of any referendum proposition in a fair and objective manner is fully in accordance with the Council of Europe’s Code of Good Practice in Referendums. This states that in order to encourage a wellinformed citizenry on these occasions:
“The best solution is for the authorities to provide voters with an explanatory text setting out not only their viewpoint or that of persons supporting it, but also the opposing viewpoint in a balanced way, or to send voters balanced campaign material from the proposal’s supporters and opponents”.
It is surely a pity that Ireland’s pioneering step in encouraging more politically educated voters in referendums was brought to naught in the way described. It is unfortunate that the original remit of the Referendum Commission was not given more of a chance to prove itself, and that the Commission was deprived of its Yes-No function because it proved inconvenient for the Government in such a politically important referendum as that on the Nice Treaty. After all the need for citizens to be properly and fairly informed of the main Yes-side and No-side arguments applies in all referendums regardless of the issue.
In carrying out its original Yes-No function Mr Justice Finlay’s Referendum Commission solicited submissions from members of the public on both sides. On the basis of these and with the help of its own legal advisers it set out the pros and cons of the referendum proposal, without giving any indication of its own views.
The main virtue of this approach is that the main Yes-side and No-side arguments, which were then publicised in advertisements, had to be genuinely rooted in the referendum proposal being voted on. This precluded arguments that were false, exaggerated, ad hominem, or which encouraged false fears or false hopes about the constitutional change proposed, whereas these are the stock-in-trade of normal political campaigning and permeate commercial advertising.
The Referendum Commission could not attach any particular weighting to the arguments it set out or give supportive facts and evidence for the two opposed viewpoints, but it did set out the main pros and cons impartially so that voters could judge and weigh them for themselves. That after all is the essential job citizen-voters have to do when they cast their votes.
The other advantage of this approach is that when voters know that the main Yes-side and Noside arguments will be set out fairly and objectively by an impartial body like the Referendum Commission, private money is much less likely to get involved. Political parties and interest groups can still spend their own money and do their own partisan campaigning, but private financial and organisational power will not be able to decide the issue.
If we want to improve Irish referendum practice in line with the recommendations of the Code of Good Practice of the Council of Europe’s Venice Commission we should surely go back to some such system as this.
Anthony Coughlan is Associate Professor Emeritus in Social Policy, Trinity College Dublin. His constitutional challenge to inequality in the allocation of free broadcasts in referendums was upheld by the Supreme Court in its 2000 Coughlan judgement.