Analysis:Yesterday, the Supreme Court ruled that the Government's "neutral" information campaign on the children's referendum was, in fact, not neutral at all.
Some of the material contained in its information booklet was found to be in breach of the 1995 McKenna decision, which prohibits the use of public funds to advocate a Yes vote in a referendum.
While the immediate impact of this is likely to be quite limited, the broader significance of the case is that it illustrates the pressing need for reform of the rules on information in referendum campaigns.
The McKenna decision stemmed from the use of public funds by the rainbow coalition government to advocate a Yes vote in the divorce referendum. This was found to be unconstitutional as it unfairly interfered with the referendum process and with the ability of the people to debate the issues and make a decision on how to vote.
Tight margin
However, although the decision was handed down just a week before the referendum, the vote proceeded and was carried by an incredibly tight margin of just 9,114 votes (50.3 per cent in favour to 49.7 per cent against).
Inevitably, the result of the divorce referendum was challenged in the Hanafin case, when it was argued that the result was tainted by the unconstitutional use of public funds to advocate a Yes vote. However, this challenge failed on the basis that the people knew of the wrong committed by the government before they had voted. In the absence of clear evidence that the spending had influenced the result, the court declined to go so far as to set aside a decision reached by the people.
The McKenna and Hanafin cases make two things clear.
First, once the information being provided by the Government on the children’s referendum was found to be biased in favour of a Yes vote, the court had no choice but to order the Government to cease its information campaign.
Second, none of this is likely to prevent the referendum from going ahead or to invalidate its outcome. This view is reinforced by two factors: the information provided by the Government in this campaign was far less explicitly in favour of a Yes vote than it had been in the divorce referendum; and the margin in this referendum is generally expected to be far wider than 0.6 per cent.
Equal time
What is even clearer is that our current rules governing information in referendum campaigns are not suitable.
The McKenna decision sits alongside the Coughlan decision from 2000, in which it was held that publicly regulated broadcasters are obliged to give equal time to the two sides of a referendum campaign. The major television and radio stations have all taken a very rigid approach to implementing this principle.
In order to appear neutral, radio or television hosts tend to exercise little or no editorial control over segments or debates, so that advocates of Yes or No votes are allowed to say almost anything they want. The role of scrutinising or challenging statements is left entirely to the opponent, who may do little other than simply contradict the initial statement and proceed to say the direct opposite.
This “Punch and Judy” style broadcast makes it difficult for the public to know who and what to believe, and has the direct consequence that an extraordinary volume of inaccurate and misleading information is circulated to voters.
It seems absurd that under McKenna, the Government (which is, after all, elected by the people and is sponsoring a constitutional amendment) is so tightly limited in what sort of information campaign it can fund, while, simultaneously, Coughlan ensures that every and any sort of information is broadcast on television and radio. It also seems absurd that such strict rules should apply to television and radio, while newspapers are free to advocate a Yes or No vote in their editorials.
A further difficulty stems from the restrictions placed on the independent body charged with educating the public, the Referendum Commission.
Originally, the commission had the role of providing arguments in favour of and against a constitutional amendment, but after the first Nice Treaty referendum was defeated in 2001, its function was reduced to simply explaining the proposal.
The thinking behind this change was to avoid lending credibility to spurious arguments, but the effect was to place almost unworkable restrictions on the commission, while all the time the Coughlan decision fans the flames of misinformation.
If the commission’s former more expansive role was restored, it could at least provide some guidance for voters as to which arguments carry some level of credibility and which arguments are without foundation.
The other major restriction on the commission is that it is almost never given sufficient time or resources to fulfil its role effectively.
Parallel campaign
The Referendum Commission was given less than €2 million to carry out its work on the children’s referendum, while the Government spent €1.1 million on its own parallel campaign. Why not allocate all this money to the commission, increasing its budget by 60 per cent and avoiding an embarrassing defeat in the Supreme Court in the process?
The commission also needs to be given more time to do its work. In the Oireachtas inquireis referendum, it was given just five weeks and for the children’s referendum, it has had just seven. Opinion polls showed that just 10 per cent of voters felt that they had a good understanding of the issues in the children’s referendum with just three weeks left to polling day. Clearly, the commission needs to be given more time as well as more money.
Our Constitution gives the people the right to decide the most important questions in our society. But current rules governing information in referendum campaigns mean that their decision is too often based on either insufficient or inaccurate information. For the sake of our democracy, this needs to change.
Dr CONOR O'MAHONYlectures in constitutional law at University College Cork