Last night saw the launch of Constitution Project @ UCC with a highly successful event on “The People’s Constitution: A Reflection on the Referendum Process”.
Professor David Gwynn Morgan, as chair, kicked things off with some thoughts on referendum campaigns in general, in light of the McKenna and Coughlan decisions. He then introduced the first speaker of the night: the Hon. Mr Justice Gerard Hogan.
Judge Hogan provided an absorbing account of the history of the amendment provision in Ireland. In order to explain the amendment provision in Article 46, he explained it was necessary to understand what had happened under the 1922 Constitution, which was left tattered by all of the amendments in its short life. Judge Hogan elucidated that while all amendments were originally intended to be by referendum only, since the Constitution was prepared very quickly, it was decided by a last minute amendment, to allow the Oireachtas to amend the Constitution by ordinary legislation to solve any minor teething problems. However, due to the vague drafting of that clause and its subsequent interpretation by the Irish Court of Appeal, this led to an unlimited power of amendment by the Oireachtas. He also drew comparisons between the Irish situation and that which occurred under the German Weimar Constitution of 1919. He made it clear that John Hearne and the drafting team of Bunreacht na hÉireann took cognisance of these experiences and for that reason made the Constitution amendable only by referendum (except for the first three years when the Oireachtas could make minor amendments but the provision which allowed this power could not itself be amended) and thus ensured the stability of our current Constitution.
The Hon Justice Bryan McMahon then presented some fascinating insights into the workings of the Referendum Commission. He explained how he had been asked by the Chief Justice to chair the Commission for the referendum on judges’ pay but had been warned that if he agreed to chair that particular campaign that it was likely he would also be asked to chair another campaign which was already being finalised. Thus he ended up chairing both the referendums which were held last November; on judges’ pay and Oireachtas inquiries. He outlined the difficulties experienced by the Commission, the major difficulty being the extremely short time period which was given to organise the information campaigns. The most time-consuming tasks included hiring PR people, finalising radio and television advertising, meeting with legal advisors and deciding what exactly could be put on the campaign literature. This last point raised another difficulty in that the Commission can no longer give arguments for or against the amendments but must simply present the information in an objective manner – something which, Judge McMahon pointed out, is more difficult than it sounds. He admitted that if it had not been for the competent and experienced staff of the Commission that it might not have been possible to meet the deadline. Finally, he suggested that reform is needed and that perhaps a more permanent Commission might solve many problems.
Dr Theresa Reidy, member of Constitution Project @ UCC and lecturer in the Department of Government was next to speak. Her presentation was based on research which had been carried out together with Dr Jane Suiter of DCU and Professor Michael Marsh , TCD. The report looked at voter behaviour during referendums and particularly in the context of the Oireachtas inquiries campaign. It also considered the lessons to be learned for future votes on reform. The statistics were quite illuminating, particularly the figures on the Nice Treaty referendums which showed that for both referendums, the no vote remained the same and the reason the yes vote was much higher the second time around was due to the increase in the number of participants who had simply abstained for the first vote. The report also examined the level of trust which the people have in various institutions and it revealed that politicians were the least trusted group while, encouragingly, legal experts were most trusted. Strangely, while the Referendum Commission was highly trusted according to statistics, it was one of the least influential groups with media being the most influential. Another issue which affects voting in a referendum, is whether the proposed amendment is considered a volatile one; if it constitutes too big a change or if it is something which the public know very little about, then it is much more difficult to predict the voting pattern. Dr Reidy concluded that the main factors in voting behaviour included levels of trust in sources, extent of knowledge and partisanship and that the report had shown that voters would like more time to consider referendum proposals, more diverse information campaigns and more contributions from groups other than politicians.
Finally, Dr Maria Cahill, member of Constitution Project @ UCC and lecturer in the Faculty of Law, considered the implications of the Crotty decision. She explained how this decision meant that we must approve by referendum any EU Treaty which would effectively result in a change to the constitutional status quo and described the attitude to this idea in Europe. She then went on to examine the test which was set down in that decision and compare the different attitudes of the judges. She questioned the test itself and suggested that a simpler and more effective test might have been set out which would have focused on Article 46 itself.
The question and answer session served to tease out some of the issues which had been discussed by the various speakers and Professor Morgan wound up the event with one of his time-honoured African proverbs: “The wise man does not stand between a rhinoceros and the watering hole.” Thus, all repaired to the wine reception.
This event was funded by the Head of Law Strategic Fund.