A group of us including Professor Michael Marsh, Dr Theresa Reidy and I along with Red C undertook research following the referendums in November with a view to learning lessons for future referendum campaigns. The report is here and the presentation given to the Oireachtas Committee on Investigations, Oversight and Petitions yesterday. here. The Programme for Government as we know contains a number of commitments which are likely to require constitutional referendums to take place over the lifetime of the current Government including those that may arise under the aegis of the proposed constitutional convention. The purpose of the research was to obtain both quantitative and qualitative information to cast light on the determinants of voter behaviour in the Referendum on Oireachtas inquiries with a view to learning lessons for future referendum campaigns to ensure that voters are appropriately informed and aware of the relevant issues.
We thus looked at
 the underlying factors which influenced the attitudes of the electorate to the proposal
 the specific issues and concerns raised in the course of public debate on the impact of the proposal which underpinned the loss in support evidenced for it
 the public’s perception and assessment of the quality and utility of the information available on the Referendum and views on how this might be enhanced in the future

What we found accords with referendum research here and elsewhere previously. Overall voters supported Oireachtas inquiries in principle (75%) yet many voted no. For some it was too big a change but for many it was too much uncertainty (if you don’t know vote no) while others appeared to vote for reasons outside of the issue itself (punishing the government). One reason for the very high levels of uncertainty was that there was a very low level of awareness of the debate with a plurality of both yes and no voters unable to recall a reason for their vote. This points to problems with the campaign and with the role of the Referendum Commission, There is a clear association between trust in legal experts and some former Attorneys General and voting ‘no’, as there was between knowing these made a case for a ‘no’ vote and voting ‘no’. Evidence suggests that the ‘yes’ side was unable to mobilise those who should have been in favour. But there is also support for the suggestion that for some voters this was a bigger change than they could accept.
In terms of views on future reform there is little sign of a pro reform group with views on various reforms differing widely. For example, 87% agree the number of TDs should be reduced, and 73% that same sex marriage should be allowed, but only 59% to abolish the Seanad, 53% that blasphemy should be removed from the constitution and 34% to change the electoral system. Although there is a slight tendency for those who favour of the abolition of Seanad to favour the reduction of TDs, and also for those who favour same sex marriage to be keen to remove offence of blasphemy from constitution and place of women in constitution but tendency is slight. There is no generally strong tendency of ‘yes’ or ‘no’ voters to support reforms but ‘no’ voters slightly less likely to favour abolishing the Seanad or increasing power of LG but more likely to favour removal of offence of blasphemy. In terms of the Constitutional Convention there was a tendency to favour the involvement of citizens a finding that was underlined in the qualitative focus groups.

The AGM will happen very shortly after the Government will have announced the draft proposal for a Constitutional Convention. The group have already published their own proposal and briefed members of the Oireacthas on it (see http://www.2nd-republic.ie/proposal). The final agenda for the AGM will be published shortly but items that are expected to be on it include agreeing a broad campaign strategy in light of the Government’s proposal and whether the group should campaign for five key areas of reform. Attendance at either session is optional and advance registration is not required. For further information, contact info@2nd-republic.ie.

SIPO last night released details for candidate election expenses – set out here. They provide useful information as to what candidates spent their money on in the campaign and how much each spent. They are less useful, however, for disclosing where each candidate’s money came from. We can see, for instance, that Gay Mitchell spent €527, 152, making him the highest spending candidate, but still well below the spending limit of €750,000. But we have no idea where the money came from, as none of his donations exceeded €634.87. Martin McGuinness  spent just over €300k,  but received a bit over €4,000 in disclose-able donations. Much of the money from these candidates will have been raise in the form of donations of less than €634. A lot of it may have come from their parties, and donations to the parties will be disclosed separately (this may benefit parties as a donor can give to a party and to a candidate used for the same campaign but not disclosed as such). And some of the money spent may have come in the form of bank loans. 

If we care about the non-disclosure of donations, a reasonably simple measure might be to limit the refund that one can get from the state to the amount raised in disclosed donations. Michael D. Higgins, Seán Gallagher and Martin McGuinness each qualify to receive a refund of €200,000 for their election expenses, but if we had a rule that you can only be refunded as much as was spent from disclosed donations, then the total amount would be just over €150,000. This would incentivise candidates to raise money in a more public way. We could also allow those who wish to donate less than €634 to waive their right to anonymity if they want to allow the candidate to claim back on the basis of the donation.

The full list if donations and expenditure is available here.

Reports are circulating that the government is about to take steps to deal with Ireland’s terrible shortcomings on Freedom of Information and Whistleblowers legislation (to be blogged about when more is known). Both measures were promised in the Programme for Government and they are important steps on the road to making Irish government more open and transparent. But there is so much more that is needed, and high on the list should be ending the disgraceful practice of allowing our elected representatives to claim expenses without having to provide receipts – ‘unvouched expenses’ to use the jargon of Irish government. The Programme for Government also promised to end this practice, but so far there is no sign of any action. As was widely reported in the media last week, TDs (and Senators) have access to generous allowances to cover travel and accommodation. What was not reported on is just how many of them still continue to opt for unvouched expenses, which prevents any financial scrutiny of the claims.Details of the travel scheme are available on the Oireachtas website. The current proportions opting to not provide receipts for their expenses are as follows:

• 56 TDs in total (i.e. 33% of all TDs), made up as follows:
• 23 of 76 Fine Gael TDs (30% of FG TDs)
• 17 of 37 Labour TDs (45% of Labour TDs)
• 5 of 20 Fianna Fáil TDs (25% of FF TDs)
• 1 of 14 Sinn Féin TDs (7% of SF TDs)
• 2 of 5 ULA TDs (40% of ULA TDs)
• 8 of 14 ‘others’ (57% of all independent TDs)

The details of the scheme are as follows. This allowance covers the costs of travel to and from Leinster House, accommodation where applicable and, for TDs only, constituency travel (ministers, ministers of state, and the Ceann Comhairle are not entitled to a travel allowance). The allowance is based on the Dublin band and twelve bands of 30km depending on the distance from Leinster House with a fixed accommodation allowance. Each Member is paid a band allowance based on the distance from their declared normal place of residence to Leinster House. Currently, the maximum unvouched annual rate for TDs is €15,000 (€25,700 if vouched), and for ‘office holders’ is €13,000 (€20,000 if vouched).

Here is the list of TDs opting to take the ‘unvouched’ route (* = ‘office holder’):
James Bannon (FG)
Seán Barrett* (FG)
Thomas Broughan (Lab)
Richard Bruton* (FG)
Joan Burton* (Lab)
Eric Byrne (Lab)
Paudie Coffey (FG)
Michael Conaghan (Lab)
Seán Conlan (FG)
Michael Creed (FG)
Claire Daly (ULA)
John Deasy (FG)
Jimmy Deenihan* (FG)
Robert Dowds (Lab)
Bernard Durkan (FG)
Martin Ferris (SF)
Terence Flanagan (FG)
Seán Fleming (FF)
Tom Fleming (Ind)
Noel Grealish (Ind)
Brendan Griffin (FG)
Brian Hayes* (FG)
Michael Healy-Rae (Ind)
Joe Higgins (ULA)
Brendan Howlin* (Lab)
Enda Kenny (FG)
Seán Kenny* (Lab)
Seamus Kirk (FF)
Michael Kitt (FF)
Michael Lowry (Ind)
John Lyons (Lab)
Peter Matthews (FG)
Michael McCarthy (Lab)
Finian McGrath (Ind)
Olivia Mitchell (FG)
Dan Neville (FG)
Michael Noonan* (FG)
Kieran O’Donnell (FG)
Seán Ó Fearghail (FF)
John O’Mahony (FG)
Maureen O’Sullivan (Ind)
Willie Penrose (Lab)
John Perry* (FG)
Ann Phelan (Lab)
Thomas Pringle (Ind)
Pat Rabbite* (Lab)
Michael Ring* (FG)
Brendan Ryan (Lab)
Alan Shatter* (FG)
Seán Sherlock* (Lab)
Brendan Smith (FF)
Emmet Stagg (Lab)
Billy Timmins (FG)
Joanna Tuffy (Lab)
Jack Wall (Lab)
Mick Wallace (Ind)

‘Independent TDs devise plan to force referendum’ reads the headline on the Irish Times site on 1 February. The cunning plan, it turns out, is that they would aim to use the provisions of Article 27 of the constitution to bring about a referendum on the recently-agreed EU treaty (or quasi-EU treaty) if the government decides that it does not have constitutional implications and hence need not be put to a referendum. Article 27 makes provision for a certain number of members of the Houses of the Oireachtas to petition the President to put a bill to a referendum ‘on the ground that the Bill contains a proposal of such national importance that the will of the people thereon ought to be ascertained’ (27.1).

Article 27 may not fulfil the hopes that some people may be vesting in it, though. For one thing, to get such a petition off the ground is no trivial task. It must be endorsed by at least a third of TDs and a majority of Senators. In the Dáil, when the government took office it had 113 of the 166 TDs, leaving only 53 (32 per cent) in opposition. Even though a few erstwhile government TDs have jumped ship since then, it would still require pretty much every non-government TD to support such a petition if the figure of a third (ie 56 TDs) is to be reached).

In the Seanad, the government had 30 of the 60 seats when the 24th Seanad met (John Coakley’s chapter on ‘The final Seanad election?’ in How Ireland Voted 2011, p. 258). The two opposition parties, FF and SF, had only 17 senators between them, with the other 13 being independents. So securing a majority of support in the Seanad would require the backing of all non-government senators plus some government defection(s).

Even if these hurdles were met, the battle would be far from over. The President would be obliged to consult the Council of State before making a decision but that decision would be his alone. In favour of calling a referendum would be the point that it could hardly be disputed that this international agreement is a matter of ‘national importance’. On the other hand, given that no referendum has ever taken place in the history of the state except on the matter of changing the constitution, it would be a dramatic break with past practice and convention if the President were to bring about a referendum that is not constitutionally prescribed. Notwithstanding this, it might be argued that just because Article 27 has never been used this does not mean that the Article has somehow ‘lapsed’ through desuetude – the Icelandic president also has powers that were thought to have become dead letters through non-use only to prove very much alive when presidents made two referrals of bills to the electorate in recent years.

The real sting in the tail of Article 27, though, comes in 27.5.1.i, which talks about the bill being approved by the people ‘in accordance with the provisions of section 2 of Article 47’. Those who flip through the pages of the constitution to consult this article discover that an Article 27 referendum is not decided, as constitutional referendums are, by a simple majority of votes cast. Instead, the bill that is being put to the people is deemed to have been approved by them unless (a) a majority of votes is cast against it and (b) the number of votes cast against it amounts to at least a third of the total electorate (47.2.1). The reason for the second condition, Éamon de Valera explained in 1937, was to prevent intense minorities being able to veto bills that had the tacit consent of the majority.

This second requirement is onerous. If, say, the votes ran 60–40 against the treaty, a turnout of 55.6 per cent would needed for this to constitute a veto. If the No vote was 54% (it was 53.9% in the first Nice referendum, and 53.4% in the first Lisbon referendum) then turnout would need to reach 61.7%; since 1972, only once (divorce in 1995) has turnout reached that level in a stand-alone referendum, ie one not taking place simultaneously with a general election. The No vote in the referendum on extending the powers of Oireachtas committees in November 2011 amounted to just 29.1 per cent of the electorate, so had that been an Article 27 referendum the people would be deemed to have approved the proposal. In the history of the state, No majorities comprising at least a third of the electorate have been few and far between. The two electoral system referendums way back in October 1968, the first divorce referendum in 1986, and the referendum on restricting the availability of abortion in November 1992 (same day as a general election) are the only four where the No vote has amounted to a third of the electorate or more.

And, as a final blow to those who hope that Article 27 might be a route to prevent the government of the day signing up to this treaty, Article 27.5.1.ii states that even if the people do veto the bill in the manner required by Article 47, the bill can be passed if Dáil Éireann passes a resolution to that effect, within 18 months of the President’s referral of the bill to the people, following a general election. So, if this bill were seen by the government as central to its programme, then even if it were vetoed by the people the Taoiseach could dissolve the Dáil and, following a general election at which, the polls currently suggest, the current government would probably be re-elected (see Adrian Kavanagh post 29 January 2012), simply reintroduce and pass the bill.

Nothing is impossible these days, but it seems unlikely that Article 27 will prove to be a route by which the government is prevented from signing the treaty.

The constituency support estimates based on the poll figures are as follows:

Based on these constituency estimates, followed by amending the model to account for seats that may be won or lost on the basis of a large/small number of candidates contesting the election (e.g. Others being allocated a seat in Laois-Offaly mainly due to the large number of independent candidates who contested this constituency), vote transfers and vote management (e.g. discrepancies between votes won by party front runners and their running mates which would see potential seat wins fall out of a party’s hands), the seat allocations across the constituencies would look more like this:

The combined number of estimated seats for the government parties would leave them at 88, still sufficient for a comfortable Dail majority but significantly down on the Dail majority currently enjoyed by these parties at present. The combined number of estimated seats for the most likely alternative government alliance, Fianna Fail and Sinn Fein, would be 55, still well behind the combined tally for Fine Gael and Labour but significantly narrowing the gap that would have been between these different alternative alliances based on seats earned in the February 2011 General Election.

In an interesting piece in today’s Irish Times (see here), Peadar Kirby and Mary P. Murphy make a persuasive case for involving ordinary citizens in the constitutional convention that the government is anticipated to establish in the very near future.

While they take issue with the approach proposed by We The Citizens (which some of us involved in this blog were also involved with), they share the same fundamental ambition of actively engaging with citizens in the process of political and constitutional reform that this government has promised (and hopefully will start delivering on soon).

Clearly there are different ways of doing this, and Kirby and Murphy’s approach does have its merits. But to follow their agenda means the adoption of a completely new constitution for a new Republic: Kirby and Murphy favour root and branch reform of our Constitution to produce a ‘Second Republic’.

However, personally I still hold to the view that a more realistic way of proceeding with the government’s promised constitutional convention would be to see it as operating in a number of parallel ‘strands’, with a citizens’ assembly (possibly more than one) as one ‘strand’ focusing on certain key questions. There are a number of advantages to this approach, principal among them being that it would enable certain reform measures to proceed apace without having to wait for debates (tortuous as these are likely to be) to conclude on full-scale constitutional reform.

In a spirited opinion piece in today’s Irish Times, Daniel Sullivan takes issue with gender quotas (see here), describing the idea variously as wrong, unworkable and even ‘boneheaded’. He appears to have three main problems with the proposal.  

First, he asserts that the quotas will do nothing to solve the wider problem of growing political apathy. Well, actually that is not the ‘problem’ that quotas are designed to solve. Growing disengagement of citizens with politics is a phenomenon common to all democracies that perhaps large-scale political reform might over time help to address. But the specific issue that quotas should help resolve is the serious gender imbalance in our political representation.

Second, he says that quotas will ‘do nothing at all to address the root causes of the original 4 Cs’ (cash, childcare, confidence and culture). Er, what? Clearly he hasn’t appreciated the close relationship between the various Cs: a change in the composition of our political elite will impact more widely on culture, on methods of practice, on support mechanisms in politics. In short, if you change who is in an organization (on a sufficiently notable scale) you change how it will operate.

Third he observes that as this has never been tried in a PR-STV system it simply won’t work, his point being that this will cause vote-management difficulties for parties forced to field more candidates. He cites unnamed ‘psephologists’ to support his argument. It is, indeed, true that a long-established mantra for parties in Irish elections is to limit the number of candidates they field. But, actually, that says more about how STV operates in Ireland than it does about the electoral system itself. In the other two countries that use STV – Australia and Malta – there is not the same hang-up about limiting the number of candidates. Furthermore, if Irish parties end up having to field more candidates to achieve their gender quotas this might actually help to eat into the ‘bailiwick’ focus of our electoral politics – starting to move us away from a fixation of having candidates selected in large part because of where they come from/live.

In a separate article in the Irish Times, Minister Kathleen Lynch (see here) reminds us of just how far Ireland lags behind other countries in Europe in having such a poor representation. No one is pretending that gender quotas are the be all and end all – but they are an important first step in helping to bring Ireland into the Twenty-First century.

More notably form a political reform perspective is one part of the interview which has attracted less attention which is her views on opening up the budget process. The Budget, of course, is an example of the extreme executive dominance in Ireland and of course of the Minister for Finance can even keep his own leader in the dark until the last minute on changes which dictate much government policy.
Burton has called for the information and the options (some of which found their way into the Bundenstag) to be published openly well in advance. That would be almost revolutionary from an Irish perspective. She also said that the detail should go to parliamentary committees “Each committee should take all of the option papers and look at the options wherever they came from.”
If this were to happen and the committees had power to make recommendations then this would go a long way to rebalancing the various arms of government here. After all if the Bundestag can debate out budget in advance why should not our own TDs?