Immediate challenge is to ensure the referendum is carried
ANALYSIS:The Supreme Court ruling that the Government has breached the law in its information campaign for the children’s referendum is embarrassing for the Coalition.
The big question is whether the decision, at this late stage in the referendum campaign, has the capacity to influence the outcome. In the longer term the court decision may lead to a challenge to the referendum result, assuming there is a Yes vote, but the immediate challenge facing the Government is to ensure the referendum is carried.
The consensus across the political spectrum in Leinster House yesterday was the decision will not trigger the massive shift in public opinion required to produce a No vote when people go the polls tomorrow.
However, some TDs did express a worry that the court decision could fuel anti-Government feeling and that could manifest itself in the form of a higher than expected No vote.
More crucially, the anti-State suspicions which underpin much of the No campaign have received a boost from the court decision which could prove crucial if there is a very low turnout.
The decision of the people in October of last year to reject the proposal to give Oireachtas committees more power indicates the potential depth of suspicion about the intentions of politicians and the State.
The indication from opinion polls taken at an early stage in the children’s referendum campaign was that the mood is very different this time around.
There was massive support for a Yes vote on the basis of the overwhelming public desire to do whatever is deemed necessary to protect children.
There have not been any recent polls to indicate whether the mood has changed as the campaign entered its decisive stage or whether the vast majority of people still take the view that the proposed amendment is the right way to go about protecting children.
One way or another, the Supreme Court decision can hardly have boosted the Yes campaign. The only question is how much damage was done.
It should be remembered that the referendum on Oireachtas committees appeared to be sailing for a resounding Yes last year but it all went wrong in the final stages of the campaign when eight former attorneys general came together to call for a No vote.
The Supreme Court decision is unlikely to have that kind of impact as it was not concerned with the rights and wrongs of the constitutional amendment itself but with the Government’s interpretation of the McKenna judgment which prohibits public money from being spent in advocating one side or the other.
Most of the established political parties have been unhappy with the 1995 McKenna judgment on the basis that it neuters the government of the day in referendum campaigns .
The McKenna judgment and the Coughlan judgment of 2000 which obliges television and radio to give equal weight to Yes and No campaigns were obvious topics for review by the constitutional convention but they do not feature on the agenda prepared for that body.
To the limit
Instead of challenging McKenna the Government tried to get around the judgment by pushing it to the limit. The High Court found that it had kept within the law but the five-person Supreme Court decided otherwise and that is the final word on the subject.
By contrast the Referendum Commission acted within the law and provided fair and impartial information about the issues at stake on Saturday.
The danger for the Government, and indeed for the Opposition parties who support Yes, is that the experiment of holding the referendum on a Saturday could prove a disaster with a record low turnout that could allow the No voters to prevail.
The record low for turnout in referendums was in July 1979, when just 28.6 per cent voted on the amendments to change the adoption law and widen the franchise for university Seanad seats. Over 90 per cent of those who voted supported both propositions although ironically the decision to change the system of electing university senators was never implemented.
This time around one of the most potent arguments doing the rounds is that the amendment won’t make any difference one way or another. If this view is widely accepted it could cause people to stay away from the polls in droves. In that event anything could happen.