Posted by Theresa Reidy
Last week, several ministers confirmed that the children’s rights referendum will go ahead in Autumn 2013. And, we are told that Seanad abolition will go before the people in 2014. Despite the proposed referendums ahead, we have heard very little about improving the structures we use for running referendums.
Ireland has a very tightly specified framework for holding referendums. The broad terms are set out in Bunreacht na hÉireann and legislation has laid down the specifics. Perhaps more importantly, a series of court judgements have established some of the most critical elements of referendum campaigns in Ireland (Crottey, McKenna, Coughlan). A 2008 IDEA report concluded that Ireland has the most heavily regulated environment for holding referendums. The experience of several recent referendum campaigns begs the question whether this heavily regulated environment is serving Ireland well.
As a result of the Crottey judgement, EU treaties (where sovereignty issues arise) must be put to a referendum. This judgement has given rise to multiple referendums, most recently, the Fiscal Stability Treaty referendum. The Fiscal Treaty highlighted some of the many difficulties with EU referendums. The treaty related to a question of budgetary rules and was placed before the people at a time of a changing political context and uncertainty about proposed fiscal and monetary policy changes within the EU. Referendums are not intended to make policy in an environment of policy flux or crisis, and to use them in this manner is unhelpful and may undermine the value of referendums as a mechanism for decision making on matters of critical national importance. EU referendums have also seen a particular narrative emerge which suggests that all decisions on EU treaties should be made by referendum, or else they are undemocratic. This, despite the fact that Ireland is frequently the only country which uses referendum as a means of EU decision making. Are we really to believe that the rest of the EU’s population live in ‘only’ quasi-democratic states?
A referendum places a heavy burden on parties, civil society but particularly on voters who must inform themselves on the details of the proposal, the arguments for and against and ultimately arrive at a decision. The average turnout at referendum elections is just above 50%, or to use the other side of this equation, close to half the eligible electorate often choose not to engage in referendum decisions. With two more referendums planned for the next 12 months, we can expect a further decline in turnout as voting fatigue begins to set in. Getting the vote out will become even more essential and consequently, the terms of the campaign and its design in relation to information and mobilisation needs serious consideration.
The terms of the McKenna and Coughlan judgements have impacted the regulations which cover referendum campaigns in Ireland. There are two separate elements, broadcasting and funding. To take broadcasting first, balance must be achieved between the Yes and the No sides in the broadcast media. While in principle, this may seem like a sensible rule, in practice it is difficult to enforce. It ignores the overarching framework of our representative democracy and may be unworkable in some referendum contexts. Children’s Rights highlights the particular problem of the campaign broadcast rules; what happens when there is all-party support for the proposal. Who will provide the opposition, it is expected that none (or at least very few) elected representatives will oppose the proposal. Civil society groups will have to provide opposition or we could find ourselves in the bizarre position where discussion of the issues cannot take place. Even then, what types of groups will come forward to oppose an all-party supported amendment to improve child protection and should these groups be given air time equal to all elected members of the Oireachtas and any other groups who support the children’s rights proposal.
The McKenna judgement constrains the funds which can be disbursed in the course of a referendum campaign, the government is precluded from spending public money in support of a proposal. Consequently, political parties and civil society groups must partly contribute their own funds to campaign in support of a referendum proposed by a democratically elected government. Equally, parties and groups on the No side receive no direct funding to provide arguments against the proposal. With frequent referendums in the offing, it is essential that funding is provided for Yes and No campaigners to ensure that voters can avail of all the arguments in a campaign. There are many possible models which could be used to achieve equity in funding and broadcasting but Danish rules could provide a useful funding prototype, and they have been recommended in previous reports – half of the referendum funds are allocated on the basis of each party’s representation level in parliament. The other half is split equally between Yes and No groups.
Finally, the Referendum Commission has a vital role to play in informing and mobilising voters but our current model is not constituted in such a manner as to provide adequately for the needs of the electorate. In many jurisdictions, a permanent election commission has an ongoing role in maintaining electoral registers, running voter education programmes and managing referendums. The Irish referendum commission is established each time it is decided to hold a referendum. In some cases, the commission has been given just weeks to prepare for a referendum. Furthermore, referendum commissions are populated by among others, high court judges and the clerks of the Dáil and the Seanad, none of whom are required to communicate daily with the public or have any specific expertise designing and managing a political campaign. The composition and functions of the commission need urgent attention.
The referendum environment is very heavily regulated. There are strict rules governing when referendums are required and how campaigns must be conducted. However, these rules may not be serving our electorate and they need urgent attention before the government commits to any further referendums.
Irish Politics Forum 
Well, I’ll be blowed! A post on one of the four fundamental problems I highlighted in my comment on the previous post:
https://politicalreform.ie/2012/06/26/citizens-voices-experiments-in-democratic-renewal-and-reform/comment-page-1/#comment-9586
When citizens vote they decide who governs and how they are governed until the next time of asking. Because Irish governments – and the huge, expansive and centralised government apparatus – exercise such excessive exceutive dominance, citizens have little influence on how they are governed between general elections. Ireland is at the extreme end of the spectrum in this respect when compared to other EU member-states. As a result, it appears that many voters value every opportunity they get at the polling booths – and are keen to maintain the number of opportunities (by-elections, Euro, local and presidential elections and, posssibly, referendums) – to re-assert their ultimate authority over governments.
If this is the case, and there appears to be a strong demand to be consulted and asked to decide on matters that in more mature and developed democracies would be decided by parliament – as well as a strong resistance to any reduction in the incidence of this type of consultation and decision by referendum, it is possible that any proposal to rely less on referendums will have to be accompanied by proposals to empower the Oireachtas to subject government to effective scrutiny, restraint and accountability. But is this what citizens want and do they recognise the need for it?
The various Supreme Court judgements on referendums have been criticised by many, but it may be the case that they accurately reflect the will of the people in terms of their apparent desire to be consulted and to decide on various matters that could, and should, be decided by the Oireachtas (so as to re-assert their ultimate authority) and their apparent acceptance of a supine and emasculated Oireachtas. The judgements could of course be criticised in terms of the extent to which they undermine the principle of representative democracy that underpins the EU and, in effect, copper-fasten the emasculation of the Oireachtas. It is bad enough that successive governments have progressively emasculated the Oireachtas, but it goes against all principles of the separation of powers and of representative democracy for the judiciary to confirm the disempowerment of the legislature to this extent.
But, perhaps, people are happy with this – though I would argue strongly that they shouldn’t be.
I suppose we should be grateful that this issue has been raised on this blog, but, typical of the usual pussilanimity of our public intellectuals, all we get is the less than helpful “these rules may not be serving our electorate and they need urgent attention before the government commits to any further referendums”.
What sort of ‘urgent attention’ should they get? Some detriments have been identified, but are there others? What remedies might be appropriate? How might they be devised and implemented – and, crucially, secure the necessary democratic consent? Is there such a fear of government and its apparatus that most of those in a position to provide answers to these questions are unable or unwilling to do so?
Frankly, I disagree completely with your implied assumption that referenda are used only in less mature and developed democracies.
If so, what kind of a democracies exist in
1) Switzerland, with its local, cantonal and federal use of referenda (including those initiated by citizens) as part of its strong and long developed direct democracy;
2) The 24 US states that have various forms of direct democracy;
3) the Federal Republic of Germany which may hold a referendum or perhaps a series of referenda on the European project, depending on what proposals emerge and how the Constitutional Court might view them?
4) the UK, with talk of referenda on the status of Scotland and EU membership?
“it is possible that any proposal to rely less on referendums will have to be accompanied by proposals to empower the Oireachtas to subject government to effective scrutiny, restraint and accountability.”
Yes, it is possible, but not probable at all, at all!
But there little evidence that any Government will empower the Oireachtas to be effective in scrutiny, restraint and accountablility.
As evidence of the contempt which the current Government has for the Dáil, I draw you attention to the fact that the Ceann Comhairle is no longer provided with a state car and drivers, as is the President, Taoiseach, Tanaiste, Chief Justice and Minister for Justice and Equality, the Director of Public Prosecutions?
IMO, this shows the contempt of the governing elite for the Dáil, the directly elected assembly of our representatives.
I am not making any implied assumption that referendums take place only in less mature democracies.
The point I was trying to make, perhaps inelegantly, in relation to EU referendums is that it is not sensible to believe that Ireland possesses some higher form of democracy by virtue of the Crottey judgement and that all other countries where decisions are taken through their representative democracy framework are in some way less.
Thanks for your reply. I agree with you that there are many other issues which could be identified but I wanted to focus on the campaign because I think the upcoming children’s rights referendum campaign could prove very difficult within our current framework.
As regards making suggestions for change. There are many options that could work. If you want my personal preference, that would be for the Danish model which is mentioned in the piece. There is more description of it in the IDEA 2008 report (available here http://www.idea.int/publications/direct_democracy/upload/DDH_inlay_low.pdf) and it was also discussed in the Sixth Progress Report from the All Party Committee on the Constitution in 2001.
@Dr. Reidy
“A 2008 IDEA report concluded that Ireland has the most heavily regulated environment for holding referendums.”
Would you mind posting the full reference to this report, please?
Given that you have cited it, I presume that it is in some way authoritative ie. based on well-researched evidence and carefully considered findings based on that evidence, together with an indication of the analytic framework used – things I would like to check for myself, given that I do not know what IDEA is or who did the report etc..
Thanks
This is the full reference for the IDEA report and it is available directly from the web. I have put the link below.
IDEA (2008) Direct Democracy: The International IDEA Handbook. International
Institute for Democracy and Electoral Assistance.
Click to access DDH_inlay_low.pdf
Thanks.
Didn’t we have a referendum recently to reduce Judges’ pay that was passed?
Whatever happened to that as I don’t see any sign their pay or expenses have been reduced?
We’re going to have one ‘for the children’ but what point is there protecting them in the constitution when we refuse to put in places the resources to protect them in the real world, or a vote to get rid of the Seanad? Is that it? And leave the Dáil as it is?
Shouldn’t a vote on the Seanad be part of a wider package of reform such as changing the population ratio to TDs and the voting system etc and reform of local government to break the link between the crony local TD and failed national politics.
Any sign at the start of July these issues are even on the radar for the political world or are they too busy creaming off expenses to notice.
@Desmond
I have not followed the application of the judges pay issue.
However, I agree that we need to ensure that the outcome of a referendum is implemented within a reasonable period after the vote has taken place.
The best example the the 1979 referendum to widen the electorate for the 6 university seats in the Seanad by allowing the inclusion of other institutions in addition to the NUI colleges and TCD.
Thirty three years later, this has not been implemented.
This period is not at all reasonable by any stretch of the imagination.
I presume our “Anonymous” is Dr. Reidy. Passing strange, but I would agree with the observations.
However, I would put tackling the frequency of referendums down the list of priorities. Still, I suppose, it probably makes sense for the ‘pol sci heads’ to waffle on about things like this. It gives the impression that serious, studious work is being done and it serves as excellent displacement activity to avoid tackling the more important issues whose resolution would really upset Official Ireland.
I presume our “Anonymous” is Dr. Reidy. Passing strange, but I would agree with the observations.
However, I would put tackling the frequency of referendums down the list of priorities. Still, I suppose, it probably makes sense for the ‘pol sci heads’ to waffle on about things like this. It gives the impression that serious, studious work is being done and it serves as excellent displacement activity to avoid tackling the more important issues whose resolution would really upset Official Ireland.
Oh dear. Apologies. It appears I’ve been caught in this ‘anonymous’ net. Bit of a wordpress glitch I expect.
Theresa here, yes sorry I think it must be a glitch. I didn’t realise my replies were going up as anonymous. Thanks for all of your comments.
who wrote the main post, and where does he/she get the idea we’ve had to many of referendums?
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