Outcome will have serious consequences for Coalition
THE REFERENDUM has become an increasingly important feature of Irish political life and that trend is likely to continue for the next few years, with planned constitutional changes queuing up for decision.
After Éamon de Valera’s Constitution was ratified by the people in 1937 there was no referendum for the following 22 years, although it was amended twice by the Oireachtas during the first four years of its operation as provided for under its terms.
In the 55-year period from the enactment of the Constitution up to 1992, just 12 referendums were held.
In the 20 years since 1992 there have been a further 20 referendums, and the pace at which the people are being asked to vote has been accelerating. A further three referendums are planned for this year alone. On May 31st people will be asked to vote on the fiscal treaty and in the autumn referendums are planned on a children’s rights amendment and the abolition of the Seanad.
The Government’s planned constitutional convention is almost certain to result in more proposed changes that will have to be put to the people.
The increasing number of referendums is due to two factors. One is the necessity for referendums on a succession of treaties at European level.
The other is the increasing demand for amendments to our ageing Constitution. Out of the 33 referendums held over the 75-year period, including the initial one to ratify the Constitution, nine have gone down to defeat.
That more than a quarter of all referendums have been defeated is remarkable given all were proposed by the government of the day and in many cases had the support of all the major parties in the Dáil.
Two attempts to abolish proportional representation, involving one question to the people in 1959 and two in 1968, were defeated by significant margins.
These were the only referendums that involved a straight fight between the government of the day and the main opposition parties.
An attempt to remove the constitutional prohibition on divorce was defeated in 1986, although it was carried by the narrowest of margins nine years later. Two attempts to deal with the abortion issue, in 1992 and 2001, resulted in a No vote and so did the attempt to give extra powers to Oireachtas committees last year.
On the European issue, the initial referendum on joining in 1972 was carried by a massive majority but, after decreasing majorities in subsequent referendums, the Nice treaty was defeated first time around in 2001 and the same happened with the Lisbon treaty in 2008.
Both the Nice and the Lisbon treaties were carried at the second attempt, following the addition of protocols or declarations designed to allay the concerns that contributed to the initial defeats.
The referendum on May 31st will be the ninth held on the issue of Ireland’s relationship with Europe.
Ironically one of the reasons we have had so many referendums since we initially voted to join the European Economic Community, as the EU then was, is due to an amendment to the 1972 referendum bill proposed by Garret FitzGerald, one of the most enthusiastically pro-European politicians in the history of the State.
During the debate on the referendum bill Dr FitzGerald, who was then in opposition, argued that the initial terminology would entail the Irish State being committed to future developments not envisaged in the original European treaties.
He proposed that the phrase “consequent on membership” should be deleted from the legislation and replaced with “necessitated by membership”.
The amendment was accepted by the Fianna Fáil government and Dr FitzGerald told the Dáil: “We have ensured that nothing . . . can be done that has any constitutional implications unless the matter is once again brought to the Irish people to decide.”
When it came to the 1986 Single European Act, the first major European treaty agreed after Ireland’s entry, Dr FitzGerald was in government as taoiseach and he argued that there were no constitutional implications and a referendum was not required. However, Charles Haughey, the then leader of the opposition, maintained that it should be put to the people. Because the political temperature was so high, the passage of the Bill through the Oireachtas was delayed and it was passed just before the FitzGerald government lost office. The legislation was challenged in the courts by Raymond Crotty, and the Supreme Court found that a referendum was required.
By that stage Haughey had replaced FitzGerald in power and he was furious at having to put the issue to a referendum.
Since then governments have not risked trying to implement major EU treaties by way of legislation, and referendums have taken place at regular intervals, although some lawyers have argued that not all of them were strictly necessary.
Referendum defeats have had different political implications. The defeat of the proposal to end PR did not harm Fianna Fáil in 1959 or 1961. Neither did the loss of the two European referendums and one abortion referendum have any party political consequences for Bertie Ahern.
However, the loss of the 1986 divorce referendum was a fatal blow for the FitzGerald coalition, while the loss of the first Lisbon treaty referendum marked the beginning of the end for Brian Cowen’s government.
The outcome of the fiscal treaty referendum is likely to have serious consequences for the Government if the measure is defeated.