Lessons from Children’s Referendum

It is still far too early to be definitive in the analysis of the result of the Children’s Referendum obviously research is needed in order to ascertain why turnout was so low and why people voted in the way that they did.

What we can say is that Saturday voting is unlikely to be the main cause of a low turnout as it serves to increase turnout in many other jurisdictions.

However in some way the 60 40 split could be seen to fit into the pattern of previous referendums as can be seen in the slides in this presentation that we delivered to the PSAI conference in Derry in October.

We also know that there is a strong and logical tendency to vote ‘no’ if you don’t know. And we know that there was a fairly low level of understanding for this referendum at least so far as it was measured by pre referendum polls.

There is a need particularly with large numbers of referendums in prospect over the coming years to seriously reexamine the framework in which we conduct these polls, If we are to properly derive real democratic benefits from referendums we need to ensure that people are as informed as possible. We should thus examine how to best resource both sides to make their arguments and have them heard. But with that right there must be an obligation to ensure that all arguments are factual and this could perhaps be policed by the Referendum Commission.

 

Theresa Reidy and Jane Suiter

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8 thoughts on “Lessons from Children’s Referendum

  1. Pingback: Yes for Children, but why did so many not bother to vote? | Bronwen Maher

  2. 1. Saturday voting may not be the main cause of the low turnout, but it certainly does not seem to have helped.

    2. ‘Voter fatigue’ should not be disregarded as a factor. While those who are intensely interested in politics might wonder how anyone could be fatigued by being asked to vote on 4 referendum issues in 13 months, for most voters this is quite demanding. If it is apparent that a referendum is needed – for example, if the Oireachtas had introduced the proposed legislation on children and the courts had struck this down as unconstitutional – then people are more likely to vote than when a significant body of opinion is affirming that the proposal is unnecessary and/or nearly devoid of substantive impact. With other referendums planned for 2013, the government may yet come to regret holding this one if it has the effect of depressing turnout at subsequent referendums.

    3. Every referendum is described by proponents or opponents as ‘crucial’, ‘essential’ or ‘vital’, and likely to have hugely positive or hugely negative consequences if passed, but if there is a disjunction between these claims and the actual substance, it is hardly surprising if most electors decide not to vote. Non-partisan analyses (eg Oran Doyle in Irish Times 7 November, with fuller paper at http://www.academia.edu/2058773/The_31st_Amendment_to_the_Constitution_Children_Bill)
    tended to evaluate the likely impact of this proposal as minimal.

    4. And, on a different aspect, there is something close to consensus that if there is a legal challenge to the result because of the government’s unconstitutional ‘information campaign’, it is very unlikely to succeed because of the impossibility of demonstrating that this affected even 1 vote, never mind 85,000 votes. That raises the question of just what sanction can be applied in these circumstances. If the nuclear option of nullifying the referendum result is not going to be applied by any court, does that mean that in practice a future government could spend money in defiance of the McKenna judgment, safe in the knowledge that even if, a few days before polling day, it is rapped over the knuckles by the Supreme Court and has to stop its activity then, that will be the only sanction it faces?

    • @ Michael Gallagher,

      Should we add a point 5? How is public confidence in the referendum process affected when successive governments fail to act on the results of a referendum? There were 2,000 or so people outside the gates of Leinster House last evening – many of us alerted to the demonstration via simple text message – in a state of shock that twenty years after a Supreme Court judgement, and two referendums in which the public rejected attempts by Government to negate the effect of that judgement, no legislation had been enacted to regulate abortion. There are other examples – in relation to the Seanad university vote, if I recall correctly – where the ‘people’s decision’ has been subsequently blithely ignored.

      • Yes, Veronica, you recall correctly.
        In 1979, the Seventh Amendment to the Constitution allowed the State to extend the provisions for the election of members of Seanad Eireann by certain universities to other institutions of higher education in the State.

        It remains to be seen if this death shakes the governing elites out of what Eddie Molloy called “implementation deficit disorder” now behind a paywall here http://www.irishtimes.com/newspaper/opinion/2010/0409/1224267974183.html

  3. I think the main problem is Irish people just don’t want or have the urge to get involved in politics. This low turnout cannot be blamed on the gov, there has being so many publicity towards the referendum for years and publicity in the last few days. The Saturday voting has being looked for years by the student population, and when they are given it most don’t bother to turn out.

    I would seem they only time we can get a high turnout for voting here is when there is something scandalous associated with the campaign.

    I think its time we change politics to make it more inclusive and more interactive, more televised announcements, somewhere on the line of a state of a union address by either the president or taoiseach, I thought when Michael D took office he said he was going to become more involved and have more of a presence, since he has moved into the Aras I have seen less of him than when he was in the Dail.
    The Constitutional conventions should be expanded to have a more local feel to them to give people more of a say in what is going on local… I bet if you asked most people they wouldn’t know what happens at county council meetings.

    Politics needs to change and it needs to change drastically to catch the eye of the voters before we end having near 0% voter turnout on issues that have such importance in they way we live our lives in Ireland.

  4. Why does it have to be someone else’s fault? Why can’t it simply be most people couldn’t be bothered to get off their sofa to cast a vote and instead of finding reasons to exonerate them, why not ask people to explain what was possibly so much more important that they couldn’t take 10 minutes to go to the school nearest their house and cast a vote.

    Is it really too much to ask people to take some personal responsibility as if we always keep implying it’s someone else’s fault then where does that lead.

    So what it was Saturday, so what it was raining, so what you didn’t understand, so what. In this day and age the idea that someone (certainly under the age of 60) couldn’t inform themselves is ridiculous.

    I bet they are well able to inform themselves if they are at risk of losing benefits or to find out what benefits they might be able to claim. If people can do that they can vote.

    The only data that is of interest of the demographic breakdown of who actually voted. I assume more ABC voted than DE people.

    That’s the real issue as DE people for some reason seem incapable of making the link between their laziness in failing to vote and the sort of policies that limit their life choices.

    DE people are more likely to have experience of the care system and abusive childhoods so you’d think they of all people would make a better effort.

  5. There’s certainly a need for improvements in our framework for referendums. The idea of having a referendum police is certainly an interesting one (very novel in international terms, but maybe not quite what was meant here ;) ) That would certainly be an extremely pro-active way of screening arguments for both sides. Perhaps an easier-to-manage equivalent would be for the referendum commission to maintain lists of the finite number of for-and-against arguments that are proposed/arise during a campaign and provide some rational commentary on each. This screening could done more carefully in such a more reflective environment (very easy to make a misstep in the heated environment of a live broadcast). I guess it helps too that a high court judge chairs these commissions. Having one of their own involved probably tends to keep the judiciary on board. And the veracity of many of these arguments won’t be a simple true or false binary determination anyway. Many such arguments are usually speculative to some degree. A measured commission commentary might indeed discount some arguments, but some may be based on assumptions that while unlikely might not be dismissed entirely.

    The commission could lay out the arguments itself. That doesn’t seem to be an uncommon international model. I noticed that was the approach adopted in the Icelandic constitutional referendum last month. Their parliament got the Law Institute of the University of Iceland to produce information for the referendum: http://www.thjodaratkvaedi.is/2012/en/ . Some of the the major arguments for and against each of the questions asked were listed (reminds me a lot of the guide the UCD constitutional studies group produced, on their own bat, for this referendum http://www.ucd.ie/t4cms/Guide_to_the_31st_amendment.pdf and the Oireachtas inquiries one). Of course, genuine objectivity is a damned difficult (but not impossible) thing to reproduce. So perhaps having the commission as a referee screening out blatantly spurious arguments and providing more nuanced commentary on more speculative ones might be easier. Personally, I’d prefer to have both approaches!

    Anyway, this all assumes good faith and willingness from our major political parties. Seemingly, a number of governments in other countries can cope with and accommodate themselves to similar rules with a lot more good grace. The saying: “there’s no one quite as deaf as he who doesn’t want to hear” comes to mind. Relatively straightforward things can become mighty difficult if one is being forced to do what one doesn’t really want to do. It’s clear large sections of our establishment detest McKenna, Coughlan, Crotty and other related judgments (and nurse a dislike for the referendum itself) that arose from a particular philosophical approach by our judiciary to democracy and popular sovereignty (a paper by Gavin Barrett up on the IIEA website advocates and summarizes this viewpoint fairly well http://www.iiea.com/publications/a-road-less-travelled-reflections-on-the-supreme-court-rulings-in-crotty-coughlan-and-mckenna-no2 ). Of course there are several downsides to this judicial philosophical approach and to the referendum itself. But, IMO, on balance, the referendum and these types of judgments have served us well (I suspect there are those who deeply regret Garret Fitzgerald’s democratic instincts that resulted in our EU amendment formula being the weaker “necessitated by membership” rather than the first proposed more sweeping “consequent on membership”). I’d agree with what a lot of Eoin Daly says as he stands up for the referendum (in a rather qualified way) in the latest in the shadow constitutional convention series http://www.humanrights.ie/index.php/2012/11/15/shadow-constitutional-convention-18-the-referendum-in-liberal-and-republican-thought/ (though I’ve always thought that many of the arguments (1930s Europe etc.) against citizen initiatives are overdone, e.g. referendums were only used in Germany after the opposition had already been completely suppressed and imprisoned, the media was firmly in Nazi propaganda hands, and the constitution dismantled; it was essentially a coup d’etat purely via representative democracy, albeit one with fatal design flaws). The 50/50 Coughlan is a somewhat crude (if a rather idealistic and intuitively appealing) approach. It’s probably not entirely satisfactory for uncontroversial rare “motherhood and apple pie” referendums, but then again for most referendums a creditable counterargument can usually be made. And simpler criteria are easier to police. If previous governments had shown more good faith, people might be more minded to cut them some slack and have more nuanced and subtle balance requirements. But subtler yardsticks may simply lead to subtler and harder to regulate forms of evasion if there’s not good faith. IMO governments have sought to follow the letter but not the spirit of these judgments (and have not even successfully managed to keep within the letter of the law). Hence, simpler cruder measuring sticks are more appropriate. Governments have plenty of other cards to play anyway.

    Properly resourcing the referendum commission and giving it plenty of time in the run-up to referendums would help. Restoring its previous powers to lay out both sides of the argument (whether it actually does this itself or merely acts as a referee as other parties do it) would, I believe, remedy most of the problems in the current setup. But, unfortunately, while I believe proper provision will be made next time for resources and time, I don’t believe this power will be restored. Fianna Fáil took away this power. The current coalition of Labour and Fine Gael have seemed happy enough with the situation. My prediction is that a better resourced referendum commission will continue to have its hands tied behind its back in this regard.

    And simple rules have upsides as well as downsides. We’ve seen in Hungary of late where governments can modify constitutions in very dubious ways (by 2/3 supermajority in their case). It’s not always such a bad thing when governments cannot put unlimited resources behind advocating constitutional amendments (in such cases we might be glad of such 50/50 constraints on a government’s power). Our constitution actually puts very few constraints on governmental power (outside of fundamental rights and issues of basic sovereignty governments have largely carte blanche to do what they want via legislation). The McKenna, Crotty, and related judgments have been useful and rare constraints on this power (especially important in the context of an Oireachtas who can’t or won’t do this). For this reason, I remain unconvinced by arguments by Gavin Barret and others.

    I voted yes in this referendum (it’s effect was far overstated I think, one upside was its potential to allow adoptions for some children in foster care etc., a potential downside was its (small) potential increase in the power of the state to intervene, and given our awful past history and the poorly funded state of child services here and some more recent ineptitude, that could count as an argument against. On balance I would hope increased intervention would be mostly for the good, which was why on balance I voted yes).

    Nonetheless, I have found the overtly political role played by some charities in this referendum campaign quite interesting, especially when some receive substantial funding from state sources (I think currently about half of Barnardos’ funding comes from state sources). Wouldn’t be against charities being involved in political advocacy, but should all forms be permitted? Where should the line be drawn? It’s one thing advocating for a change in the constitution, but should a charity then wade into the actual campaign once it has started? The IIEA is another charity, an “independent think-tank” on EU affairs, that receives a lot of state/semi-state funding, and usually has a lot to say about EU referendum campaigns. Though I think it has been careful not to directly take part in such EU campaigns. The whole area of civil society, charities, and their interaction with the state is an area that deserves much closer examination.

    And one of the cards a government can play to level the playing field (and still legitimately stay within McKenna and related judgments) is regulation of funding on both sides of a campaign. There are upper bounds for spending in Presidential campaigns (750k, I think, currently). Presumably, a government could resort to slapping equal upper caps on both sides if a large amount of private funding looked like coming in to oppose its proposed amendment. Though, of course, if large amounts of private funding came in behind its own side it might somehow neglect to do this! :) Phoenix magazine pointed last month to the large amounts of funding received by many of the charities recently campaigning on the yes side over the past few years by Chuck Feeney’s Atlantic Philanthropies and the One Foundation. I’ve a lot of regard for Chuck Feeney and he obviously wants to stand up for children’s rights (no doubt for the very best motives, and also improve services for children). Though the establishment here had no qualms in shouting blue murder in a previous involvement by him (straying somewhat into the political sphere) with the Centre for Public Inquiry (which closed its doors pretty quickly). Even Chuck Feeney’s money seems to be accepted on quite a selective basis when it might impact in the political sphere (and there was certainly no searing spotlight placed on it as was on Declan Ganley in EU referendum campaigns!). Irish governments’ general approach in this area doesn’t seem particularly consistent! :)

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