Voters left to seek out the arguments for themselves
THE REFERENDUMS: everyone’s been talking about them. Or at least, that’s what the Referendum Commission’s television campaign would have you believe. Unfortunately, what many people have been saying is: “What are these referendums about?”
That is not to criticise the way the commission performed the task entrusted to it by the Oireachtas. The problem with the current system is not the personnel staffing the commission but rather the way in which its powers have been hamstrung by our political system.
The commission was originally established in the aftermath of the Supreme Court’s decision in the McKenna case that the use of public money to promote a particular outcome was undemocratic, unfair and contrary to the Constitution.
An independent Referendum Commission was then established, the functions of which included the preparation of a statement setting out the arguments for and against a proposed amendment and the promotion of fair debate and discussion of the proposals.
However, in 2001, in the aftermath of the first Nice Treaty referendum, the Referendum Commission’s functions were altered by the Oireachtas so that it is no longer entitled to summarise the arguments for and against, or to promote fair debate.
Instead, the commission’s task was limited to promoting awareness of the referendum, encouraging people to vote, and preparing a statement “containing a general explanation of the subject matter of the proposal . . . and any other information relating to those matters that the commission considers appropriate”.
The changes were justified by the Government on the basis that the pre-Nice system gave undue prominence or credibility to the No side. Speaking in the Dáil, Minister for State Bobby Molloy argued that “the alignment of arguments for and against a proposal in an almost sterilised format has not encouraged debate and can result in seemingly equal weightings being given to alternative arguments which do not merit equivalent comparison, in any rational assessment”.
While criticising several aspects of the Bill, then-deputy Alan Shatter agreed that the system of setting out Yes and No arguments was unsatisfactory. He criticised the “ridiculous situation whereby the commission is compelled to publish Yes and No arguments”. This meant, in his view, that “hose who hold minority views that do not deserve to be given weight because they lack credibility and substance are given equal standing with the true position.”
However, the result of these changes is that the material distributed at significant expense by the commission is often of little value to voters. The reforms have so constrained the commission’s role that it is left to spend millions of euro telling the public that a referendum will take place and that they should take it seriously, all the while studiously ignoring the obvious question that any citizen taking the matter seriously will ask – what are the arguments for and against?
An argument might even be made that the present system is inconsistent with the spirit of the McKenna decision. Providing a bare explanation of the purpose of a proposal may contain an implicit bias in favour of it. A sterile account of what an amendment aims to achieve tells voters nothing about the existence, let alone content, of any counter-arguments. The result is that commission ads can unintentionally imply that these are apple-pie amendments which give rise to little or no concerns.
Indeed, the absence of a clear and independent statement of the arguments for and against may not always work to the advantage of proponents of constitutional change. It is questionable, for example, whether the issue of conscription would have featured so prominently in the minds of voters on the Lisbon Treaty if the commission had retained its original functions.
Recent experience has underlined again the weaknesses of the current system. It was unhelpful for the referendums to be held under the shadow of a presidential election. Then once attention finally focused on the 30th amendment, members of the Government too often failed to engage with the genuine constitutional issues raised by opponents. An approach based on attacking the personality of opponents and on dismissing the issues raised as implausible may make for good politics but does a disservice to the people and to their Constitution.
In fact, one of the striking features of recent weeks has been the electorate’s desire for information. Discussions online demonstrated how much voters were willing to seek information about the amendments. Yet, they also reflect how the absence of comprehensive and impartial information left the onus on individuals to seek this out for themselves. It would be welcome for our political system to respond to the public’s desire for full and independent information.
Eoin Carolan is a member of the Constitutional Studies Group in UCD