Referendum Code


It is hardly a coincidence that the All-Party Oireachtas Committee on the Constitution has proposed a new code for the conduct of referendums at this time. The Government was stunned by the outcome of the Nice Treaty referendum earlier this year.

It is still in denial of the fact that the complacency of the Yes campaigners, including the Taoiseach and the main political parties, contributed in no small way to the result. Now it intends to hold a complicated referendum on abortion next February which it would hope to win in the run-up to the general election.

For all that, the Oireachtas Committee, chaired by Mr Brian Lenihan, has produced a solid body of work on the reform of the referendum process. It has put forward a number of proposals which would transform the nature of constitutional amendment campaigns while, at the same time, remaining within the parameters of the McKenna judgment.

The judgment takes its name from the Green Party MEP, Ms Patricia McKenna, who took a case in the final days of the Divorce referendum campaign in 1995, claiming that the Government's decision to spend £500,000 promoting a Yes vote was unconstitutional. The Supreme Court ruled that the Government's use of taxpayers' money in this way was "an interference with the democratic process" and "an infringement of the concept of equality which is fundamental to the democratic nature of the State".

The Government's response to this judgment has been the establishment of a Referendum Commission to mount a public information campaign with arguments for and against any referendum proposal in equal measure. The very stuff of politics has been removed from referendums - through no fault of the Commission - and the voter turn-out continues to decline.

The Oireachtas Committee, in its comprehensive report, asserts that the people, when they are deciding on a constitutional amendment, are in the position of a judge hearing a case. The quality of their judgment will depend on the clarity with which the facts under- pinning a proposal are placed before them and the cogency of the arguments made to them. The Committee's main recommendation is that public funds should be spent on a constitutional campaign and the Referendum Commission should be allowed to dispense them equally among to the opposing sides. It is a worthy proposal which could help restore the democratic deficit in the referendum process.