Citizens’ Assembly Recommendations on Referendums: An Opportunity to Enhance our Democracy

Dr Conor O’Mahony

Last weekend’s meeting of the Citizens’ Assembly generated a wide range of recommendations on how we might improve the way we operate our referendum process. Some of these will garner more publicity than others, but all of them are worthy of serious consideration by the Oireachtas and by the public. If a reasonable number of them are implemented, they present a real opportunity to greatly enhance our democracy.

Referendums are, by international standards, a very frequent occurrence in Ireland. We are among the biggest enthusiasts in Europe, and this seems unlikely to change in the near future. Irish people have become accustomed to having their say on matters of constitutional importance.

If we are going to continue to hold referendums with such frequency, it makes sense that we should pay attention to aspects of the process that we know to be problematic, and to see how they might be improved. The Assembly heard detailed evidence on a wide range matters and has presented some worthwhile recommendations.

The establishment of a permanent Electoral Commission is not a new suggestion; it was recommended previously by the Constitutional Convention and the Referendum Commission, as well as multiple commentators. It is well established that in its current form, whereby it is set up from scratch a few weeks before every referendum campaign and disbanded again as soon as the voting ends, the Referendum Commission struggles to fulfil its remit of informing voters and encouraging them to vote. A permanent Commission with a wider remit, more resources and greater expertise could make a positive contribution to the regulation not just of referendums but of all elections.

A more novel recommendation is that the new Electoral Commission be given an active role in fact-checking claims made by campaign groups. The current Referendum Commission has done this on some occasions (such as claims made about the effect of the Marriage Referendum on laws governing surrogacy) but has refrained from doing so in other campaigns (such as the Lisbon Treaty or the Children referendum). The Assembly’s recommendation would, if implemented, oblige the Commission to take a more active role in assessing the validity of claims about the effect of a Yes or No vote, which has potential to mitigate the harm caused by misinformation being circulated during referendum campaigns.

Much of the media coverage of the Assembly session to date has focused on the recommendation to lower the voting age to 16. However, this recommendation, which echoes one previously made by the Constitutional Convention, was just one of a suite of options aimed at increasing voter participation in referendums. Average turnout is just over 50%, but has varied from a high of 76% to a low of 29%. And while lowering the voting age will not necessarily increase the percentage figure, it would at least increase the number of voters who actually participate in decisions on constitutional amendments (which has been as low as just 623,000 on one occasion).

Anything that can ensure a greater level of engagement by voters must surely be welcomed. In this regard, the Assembly made suggestions such as greater use of the postal vote; allowing voters to vote at any polling station; online voting; automatic voter registration; early voting before the poll, and weekend voting.

Some of these suggestions will raise eyebrows. A Saturday poll in the Children referendum in 2012 generated one of the lowest turnouts in history, while our brief flirtation with electronic voting machines did not end well and is likely to make politicians reluctant to embrace new technologies for voting. But all of these options are worth exploring, and at least some will be worth implementing.

Another interesting outcome from the Assembly was the recommendation that we introduce the option of multi-option voting for referendums rather than relying solely on the current binary Yes/No model. This will not always be necessary, but there are occasions when it could have much to offer.

For example, voters were asked in 2013 whether they wanted to abolish the Seanad. 52% voted No, but the scales were tipped not by a desire to retain the Seanad as it is, but to reform it in the future. However, this option was not on the table, and the Seanad remains unreformed. If the Assembly’s recommendation is accepted, a future referendum of this sort could offers voters a choice of abolish, retain or reform, with the possibility of giving preferences (as in presidential elections) and the outcome being decided by transferable vote.

Finally, one matter that was discussed in detail at the Assembly, but which did not generate a recommendation (or indeed even a ballot at the Sunday session), was the regulation of broadcast, print and digital media during referendum campaigns. This has long been a source of consternation in Ireland due to the challenges involved in affording fair treatment to campaign groups without stifling discussion and a blunt reliance on a “stopwatch” approach to debates.

Recent experience from other jurisdictions shows that the digital revolution and the rise of social media will make it harder rather than easier to achieve fair coverage of referendum campaigns. Yet while the broadcast media are subject to strict rules, print and digital media are almost wholly unregulated for campaign purposes. While the Assembly may not have made any particular proposals in this regard, we cannot afford to become complacent about the effectiveness of our current framework.

Dr Conor O’Mahony is a senior lecturer in constitutional law at University College Cork and was one of the expert witnesses who addressed the Citizens’ Assembly last weekend. His presentation can be viewed in full here.

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