Latest Referendum Commission report gives cause for deep concern

Dr Conor O’Mahony

In constitutional terms, Ireland is going through a minor bout of “Amendamania”. The coalition has already put four constitutional amendments to a referendum. In September, there will be at least two more– the abolition of the Seanad and the establishment of a civil court of appeal – that will involve over seventy separate amendments to our Constitution. The Constitutional Convention has recommended further amendments on the voting age, same-sex marriage and the provisions relating to women in the home, and looks likely to recommend even more.

Against this backdrop, the publication of the Referendum Commission’s report on the children referendum is deeply concerning.Research conducted by the Commission indicates that 41% of voters felt that they did not understand the proposed amendment (a level that the Commission rightly describes as “unacceptably low”). Worse still, the Commission’s report identifies that this is part of a clear trend. Even fewer voters felt that they understood the referendums on Oireachtas Inquiries and the Fiscal Treaty. Admittedly, these three referendums were particularly technical and difficult to explain; but the same can be said about future proposals like reform of the Dáil electoral system (currently being debated by the Constitutional Convention).

You wouldn’t agree to surgery being performed by a doctor who had a poor understanding of what he was doing. Why, then, are we proposing major surgery on our Constitution when those who hold the scalpel – the people themselves –often have an “unacceptably low” understanding of what they are being asked to do?

In successive reports, the Referendum Commission has asked to be given more time to run its information campaigns. In spite of this, it was given just seven weeks in advance of the Children Referendum. Moreover, the Government ran a parallel information campaign of its own. In addition to being found by the Supreme Court to have been biased in favour of a yes vote and therefore unconstitutional, the Commission has concluded that the Government’s information campaign undermined the Commission’s efforts by confusing voters and diverting over €1m that that could have been usefully spent by the Commission.

At the very least, we should be entitled to expect that the Commission will be given a free run at the referendums due to be held in September, with no competing information campaign run in parallel. It should also be given at least three months to carry out its work, and should ideally become a permanent body rather than an ad hoc one that has to start from scratch every time a referendum is held. But the report appears to suggest that this would only be a stop-gap solution. If Amendamania is to continue, it would be downright irresponsible not to undertake more far-reaching reforms of the referendum system.

The manner in which the Referendum Commission is restricted to making strictly neutral, informative statements on the proposed amendment, and no longer has the function of airing the arguments in favour of or against the proposal, needs to be re-considered. This approach inevitably leads to defensive practice, with the result that the Commission’s materials tend to be bland and uninteresting. Only 48% of voters found the Commission’s booklet on the Children Referendum to helpful, while 40% of voters found its television and radio advertisements to be long and uninteresting. Giving the Commission the power to engage with the claims made by both sides of the debate would mitigate the abstract nature of its recent campaigns.

The Referendum Commission is just one source of information during a referendum campaign; the broadcast and print media are the other primary source, with blogs and social media playing an increasingly important role. Meaningful reform should take all of this into account. The manner in which television and radio presenters implement the Coughlan ruling requiring balanced coverage has allowed a huge amount of misinformation to be circulated under the cover of “equal broadcast time”. Presenters often fear to challenge this misinformation lest they be perceived as biased on one side of the other. The result tends to be a shouting match between campaigners in which voters are susceptible to being led down the garden path by misleading statements. In its current manner of implementation, the rule does more harm than good.

Other more radical possibilities also exist. Dr Jane Suiter and Dr Theresa Reidy wrote in the Irish Times last October about the merits of the Danish model, whereby funding is channelled directly to the political parties and to campaign groups, who can then use that funding to advance their arguments to the electorate. An independent referendum or electoral watchdog could potentially police these campaigns to ensure that funding is not used to distribute misleading information.

In the longer term, we also need to explore ways to place a greater emphasis on constitutional and political literacy in our education system. The Constitution states that it is “give[n] to themselves” by the people of Ireland, and Enda Kenny recently described it as “the people’s book”. Yet the majority of us have never read it or perhaps even picked it up. People who hold strong views on issues such as abortion or same-sex marriage should know exactly what the Constitution does and does not say about these matters. Every voter should at least have enough knowledge to know where to look to find out.

Whichever option or suite of options we decide upon, one thing is clear: we cannot afford to blindly continue to make the same mistakes over and over. Just like consent to a contract or a marriage, it is essential that the consent of the people to a constitutional amendment, so far as possible, be fully informed.

Dr Conor O’Mahony lectures in Constitutional Law at University College Cork. Twitter: @ConorUCCLaw

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