Referendums are with us to stay, so we may as well start to run them properly
Opinion: The weaker the communication, the lower the turnout and the greater likelihood of a No vote
The announcement in the Dáil on December 17th by Minister for Justice Alan Shatter that the referendum on same-sex marriage will occur in 2015 will bring to nine the number of referendums already held or promised in the lifetime of the Government. To date, six referendums have been called: judges’ pay, Oireachtas inquiries, the EU fiscal treaty, children’s rights, abolition of the Seanad and the Court of Appeal. Three more are now promised in 2015: reducing the voting age to 16, reducing the age barrier for presidential candidates, and same-sex marriage. These nine referendums break by one the record previously held by the 29th Dáil (2002-2007).
There could even be more before the end of this Dáil term. The Constitutional Convention has proposed other constitutional reforms – in such areas as the administration of elections, blasphemy, and voting rights in presidential elections for non-resident citizens – that the Government has yet to respond to.
In the case of the same-sex marriage referendum, the expressed reason for the delay of more than a year is to give time for the Government to pass legislation on children and parenting issues so as to prevent distraction from the real issue of the referendum debate. But Mr Shatter is on record as stating that the main reason for delaying the next three referendums is the fear of voter fatigue. In the three most recent polls, barely a third of voters bothered to turn out.
McKenna and Coughlan
Is voter fatigue due to so many referendums the real problem? Ireland certainly shares the distinction
with Switzerland and Italy in holding the most referendums in Europe. But where we also stand out from most of our European partners is in the poor management of our referendum process. For many the two villains of the piece are the McKenna (1995) and Coughlan (2000) judgments that between them have defined how referendums have been organised and communicated in recent decades.
The Coughlan judgment has been interpreted as meaning equal coverage must be provided on the airwaves to both sides of the argument. The obvious problem with this principle is that on those occasions in which the vast bulk of opinion – at least on the part of the campaigning groups – favours one side, the broadcasters are seriously constrained in their ability to broadcast on the issue. This was evident in the referendums on children’s rights and the Court of Appeal. There are grounds for arguing – as Mr Shatter did in the Dáil on December 17th – that the broadcasters are interpreting Coughlan too rigidly, and that what is required is that both sides of the debate are presented in a proportionate rather than an equal fashion. But if the Government really believes the broadcasters are being too cautious in their interpretation of Coughlan, it should legislate to fix this.
Arguably McKenna presents a bigger problem. Since this judgment, governments have been prevented from using public funds exclusively to support their side of the argument. This is quite right; although arguably the problem could relatively easily be fixed simply by funding both sides of the debate, as happens in other countries. Moreover, we need to look beyond political parties and provide funding for civil society groups. Trust in politicians is low and citizens want to hear from groups and experts outside politics, but unlike many other countries no funding or broadcast time is allocated to ensure a broad base of participation in the campaign.
More serious, however, is the decision of successive governments ever since McKenna to use ad hoc referendum commissions, established in the period leading up to each referendum, to be the main source for public information. The constrained, genteel and rather formalistic manner in which these commissions operate can have the effect of killing off the oxygen of debate. What is needed is a permanent, properly resourced, professionally-managed electoral commission whose remit includes management of the referendum process, and which can adopt a more assertive, proactive role.
It is interesting to note that in the recently published report of the referendum commission charged with managing the Seanad and Court of Appeal referendums the chairwoman, Ms Justice Elizabeth Dunne, recommended the replacement of ad hoc referendum commissions with a permanent electoral commission. The Government should heed her advice.
The poor management of Ireland’s referendum process has serious implications for policy. Whether we like it or not, referendums are here to stay, and therefore we should ensure that they work as effectively as possible. Civil Service-speak information leaflets through the letter boxes and 15 minutes on Morning Ireland just doesn’t cut it.
The weaker the communication of the issue, the fewer citizens engage with it and the greater the likelihood of low turnout. Our systematic analysis of all the referendums to date shows conclusively that low turnout increases the likelihood of a No vote. It is what we know anecdotally.
The Government has given itself more than a year to prepare for the next set of referendums. It should use the intervening period to its full advantage to bring forward urgently needed reforms to Ireland’s outdated referendum process.
Top of the list should be the following: legislation to guide the broadcasters on how to cover referendum campaigns; a reform of the State funding regime to support the campaigns of parties and civil society groups on both sides of the divide; and the establishment of a permanent electoral commission.
Failure to take advantage of this moment could backfire badly on a Government that will need every tool in its arsenal to get these referendums over the line – not least given the known fact that governments at the fag end of their term of office face an uphill struggle to win referendum votes. It would also be an important moment missed to once and for all fix our outdated referendum process.