Article 27 comes with a Catch-22 that makes it unworkable

 

Minister Brian Cowen's interesting suggestion to the effect that any new Bill emanating from the Oireachtas on the issue of abortion might be referred to the people via an Article 27 referendum threatens to introduce a new complexity into an already intricate debate.

Article 27 has never previously been utilised, but it is a hangover from the provisions of Articles 47 and 48 of the Free State Constitution of 1922, which envisaged a form of initiative and direct legislation by vote of the people. These provisions were themselves deleted in 1928 when it became clear that Fianna Fail (then in opposition) might successfully organise a petition under these provisions to have a referendum on the (then equally controversial) issue of the oath of allegiance provided for in the Treaty.

The procedure envisaged by Article 27 is, however, quite arcane and complex. It requires first a petition to the President by one-third of the Dail and a majority of the Seanad to the effect that there ought to be a referendum on a Bill which has just been passed by both Houses on the ground that "the Bill contains a proposal of such national importance that the will of the people thereon ought to be ascertained". The theory here is that an anti-Government majority in the Seanad can combine with the opposition in the Dail to have such a referendum. Since, in practice, the Government nearly always enjoys a majority in the Dail, the conditions admitting the use of this procedure have almost never been in place. (Of course, a Government could always arrange for its deputies and senators to sign such a petition in respect of a Bill for which they themselves have just voted).

Next, the President must consult with the Council of State before deciding whether she will accede to such a petition and direct a referendum. In the meantime, however, she may, as it were, stay the petition pending a reference of the Bill to the Supreme Court under Article 26 of the Constitution. Were that court to conclude that the Bill was unconstitutional, the Bill - and the petition for a referendum - would automatically lapse.

It may be noted in passing that against the background of any possible petition under Article 27 the prospect of the President referring the Bill first to the Supreme Court for a ruling on its constitutionality before its possible presentation to the people for a direct vote must be a very real one.

Assuming next that the President either (1) refers the Bill and it is upheld by the Supreme Court or (2) she does not so refer it, she may then refer the matter to the people by way of a referendum. This referendum would be quite unlike any previous referendum in that it would be a vote on whether a Bill should become law and it would not be a proposal to amend the Constitution itself. Moreover, this procedure contains an inbuilt - and, it might be thought, quite unfair - weighting in favour of the passing of the Bill. Clearly, the opponents of the Bill would have to muster a majority against the measure. They would then, however, be faced with the requirement that at least one-third of the registered electorate also voted No (i.e. not simply those who actually voted). I fear that even the best of us require a series of examples before we can fully grasp how this procedure would work.

Example one:

In a 60 per cent poll, the Bill would still pass if the votes against it came to 55 per cent of those who actually voted, since although the No votes would have a clear majority on the day (55-45), they would not - having regard to the turnout - have managed to persuade at least one-third of the registered electorate to vote No.

Example two:

With a 50 per cent poll, the Bill would still pass if the votes against it came to 65 per cent.

Example three:

With a 32 per cent poll, the Bill would always pass, even if every per- son who voted against it, since even on this hypothesis, by definition at least one-third of the registered electorate would not have voted against the Bill.

It will be thus seen that this procedure is made completely dependent on the vagaries of the turnout. The drafters of the Constitution lived in an era of very high voter participation and could not really have envisaged, e.g. the turnout of about 28 per cent for the bail referendum. (Note that the turnout for the first "pro-life" referendum in 1983 was only just over 50 per cent).

But even if the opponents of the Bill managed to secure the magical one-third of the registered electorate voting against it, together with the majority of actual voters on the day, they might yet encounter defeat. For if the Dail were dissolved and the new Dail within 18 months from the date of the calling of the referendum decided to resolve to vote for the Bill (even though it was defeated in a referendum) it would still, by virtue of Article 27.5.11, pass into law.

The truth is that the Minister's idea is a good one, but that the present Article 27 is so arcane - and downright unfair to the opponents of any measure - as to be unworkable.

We come back to the one salient truth of this sorry business: no constitutional lawyer can draft a form of words for any ordinary constitutional amendment to be submitted by way of ordinary (i.e. not Article 27) referendum as will accommodate either the inherent complexities of the abortion issue or the moral ambiguities of the Irish public.

Gerard Hogan lectures at the School of Law, Trinity College Dublin