The referendum decision: if you don’t know (& if you’re not consulted) vote no

Post by David Farrell (October 30, 2011)

The failure of the referendum on Oireachtas enquiries by 47%/53% is, to say the least, a ‘disappointment’ for the government. But is the result all that surprising? Quite apart from the intense debates over the merit of the proposal (including in a series of posts on this forum), the plain fact is that this referendum fell foul of the well-worn adage: ‘if you don’t know vote no’. It also didn’t help that citizens were not given a greater say in the process leading up the defining the referendum question: the rationale for and design of the referendum question was imposed from the top without any effort to engage with citizens in advance.

In a fascinating presentation at last week’s annual conference of the Political Studies Association of Ireland, Professor Paul Whiteley (Essex) reported on British Election Study research of the recent British referendum on electoral reform. Their findings showed conclusively that lack of information was a key factor in the abject failure of that campaign. Voters need to be sufficiently informed if they’re to make informed choices. That was at the heart of the failed British electoral reform referendum, as it was here too.

Such survey data as there were indicated that most voters were (and felt) ill informed about the referendum on Oireachtas enquiries. The Irish Council for Civil Liberties were right to condemn the Referendum Commission and government for not doing enough to inform voters in advance of polling day (see here). In future, there could well be arguments in favour of not holding referendums on the same day as a national election: this way the referendum question should have a better chance of receiving the attention it warrants.

By their nature, referendums are blunt devices: often complex issues are distilled down to simple ‘Yes/No’ choices. But in a fixed-Constitution system like ours, there is no other alternative. More than anything else this speaks to the need for the issue to be explained clearly and comprehensively.

But it also speaks to the need for citizens to be consulted at every stage in the process – not just on polling day. A process of prior consultation with citizens in advance of setting the referendum question might have gone some way to:
• help fine-tune the details (so reducing criticisms over details, such as those relating to paragraph 4 of the proposal),
• test how arguments might play out (e.g. such as over whether this is the right time to pose this question before wider reforms to the role of the Oireachtas have been implemented),
• increase the prospect that whatever referendum question ultimately emerges has better chance of a fair electoral wind.

If a government is to trust the citizens it needs to consult them.

11 thoughts on “The referendum decision: if you don’t know (& if you’re not consulted) vote no

  1. re. Consulting citizens at every stage of the process

    IMO, all those TDs who did not oppose the Government proposal should explain why they did not propose the words suggested by the Oireachtas Committee in last January

    “The Houses of the Oireachtas shall have the power to inquire into any matter of general public importance.
    In the course of such inquiry the Houses may investigate any individual and make findings in relation to their conduct.
    The conduct of such inquiries shall be regulated by law. Such law shall balance the rights of the individual with the public interest in the effective investigation of matters of general public importance.”

    Click to access viewdoc.asp

    Then, the Government should explain why it did not publish the proposed legislation way before the Referendum and/or why this referendum had to be held now.

    Thinking about how laws are proposed here, I wonder could things be changed without constitutional amendment. – with a view to having a more informed public

    As I understand it, Ministers present “fully worked out detailed wordings” of Bills to the houses of the Oireachtas. Within whatever time limits the Government decides, the Dáil and Seanad debate the proposal in various ways before it is passed – using the whip system when necessary.

    Another approach might be as followswere adopted.
    Minister says that some problem/issue/major reform needs need legislation.
    Minister then invites the House of the Oireachtas to write the legislation.

    Then, there would be a possibility of citizens/voters being aware of proposals for legislation and would see the process by which such measures are worked up, options considered and rejected, consideration of precedents here and elsewhere before a final Bill is agreed.

    Any such committee might even decide to convene a citizens’ assembly on the particular issue.

  2. I realise there is a desire here to seize any opportunity to advance the cause of participatory democracy, CAs and all ‘good things’ of this ilk, but we have the trappings of a parliamentary democracy and the vast majority of the people seem to be happy with that.

    What is being missed here (and which I have raised on another thread) is that the majority of voters who rejected this amendment (quite rightly in my opinion) have also been compelled, implicitly, to accept that the Dail, as it operates now, does not have a role to play under the Constitution – similar to most other parliaments in developed democracies – in holding Government (or others who exercise power and influence) to account – an ex post, reactive activity – or in exercising restraint on Government – an ex ante, proactive activity. This exists only in theory; we have all the trappings; but not in reality.

    In its determination both to avoid any possible consideration of empowering the Oireachtas to exercise restraint, in an ex ante and proactive manner, over government and to ensure any banking inquiry would involve ‘naming and shaming’, the Government has provoked this sensible response from a majority of voters and made it very difficult to re-visit these issues in the near future.

    I doubt voters will accept the EU referendum approach – you didn’t get it right the first time; vote again and get it right this time, or be best pleased if the question were to be re-packaged (as the EU Constitution aka Lisbon Treaty aka TFEU was to sneak it past most EU voters).

    As a result of this vote the Dail could be suspended without any noticeable effect, because a ‘yes’ vote might have given it something useful to do. Governments, in effect, issue decrees in final form and, while the government’s majority holds, these are invariably enacted. The Dail no longer serves any useful purpose once it has elected a Taoiseach.

  3. I’m not sure that I’d agree that people voted ‘no’ simply because they didn’t know enough. Irish people have in the past exhibited a degree of sophistication about constitutional change, including discriminating between separate clauses of a composite proposal as in the last abortion referendum. Further, unlike the UK, we have a written Constitution and as an electorate we’re very familiar with the referendum process, not least due to the never-ending progression of EU referendums. International research, especially based on UK referendum politics, needs to be approached with caution.

    The wording of this referendum was ill-advised. As were the ad hominem attacks by any and all government members and spokespersons in response to any challenge to what was being proposed. The public don’t need to know the fine details of a proposal – who reads EU Treaties in full? – but at this point in our democracy the Irish public know enough not to buy a pig in a poke.

    • @Veronica,

      I fully agree with your point about the dangers of a ‘read-across’ from UK referendum politics. Having been peripherally involved in the campaign my argument with the Unlock Democracy people was that they didn’t convey a simply message on fairness which would have resonated with most voters; that the change was required to ensure that a majority – and not a minority as often happens under the current system – of voters had expressed a preference for the candidate elected. Instead they simply confused people with all sorts of potential, but unrelated, benefits of a change – and left themselves prey to the forces of reaction. It was amateurish and conveyed a lack of experience and an understanding of what moves voters.

      The majority of Irish voters, fortunately – and as you note, are less easily gulled. But I remain concerned about the, probably unintended, implications of this vote. Do citizens really want TDs to just elect a Taoiseach and remain (broadly) loyal to faction and to focus on being constituency advocates before Ministers and on being mini-ombudspersons? Are they content that backbench governing faction TDs grumbling to Ministers (and hinting at rebellion) is enough to exercise restraint on government – and that TDs should have no formal powers, short of outright rebellion, to exercise restraint over government? And that it is sufficient to reinforce this by using any election or vote that crops up to fire a warning shot across the bow of government?

      I think it is a reasonable inference from revealed behaviour, but I would be more than pleased to be disabused. If my inference is correct, the prospects for any sort of meaningful political reform are slim to non-existent.

      • Paul,

        The executive has one job to do in making decisions in the best interests of the country, not themselves; the parliament has a different one in scrutinising those decisions and holding the government to account and Oireacthas Committees carrying out enquiries are something else entirely, I would argue – related to the Dail but not confined to it since such Committees include members of the Seanad and access to back up expertise/research etc.

        The government proposal conferring far-reaching powers on Oireachtas members and on its Committees that carried the potential to undermine the constitutional rights of citizens to fair procedure was judged inapproriate by the electorate and, I believe, rightly so. The government case wasn’t helped by exaggerating the impetus of their proposals (i.e. other parliaments in Europe have the same powers, which they don’t!) nor by a series of ad hominem attacks on critics of their proposal. Listening to Brendan Howlin on radio right now, devouring large, and to him, distinctly indigestible, lumps of humble pie it’s clear that the risk of failure inherent in seeking to utilise constitutional change, with all its long term implications, to expedite short term political objectives is now apparent.

        Oireachtas reform is necessary and the Dail needs more freedom to hold the government of the day to account. This latter could be achieved by removal of the whip for all legislation, except finance bills or exceptional circumstances that the Government clearly demonstrate as vital to the national interest. There’s no referendum required for that style of reform.

        The political class have a responsibility to put their own house in order; it’s not the electorate’s job to determine the rules of parliament. However, failure to introduce meaningful procedural reform will have consequences for the politicians – as others have found out, those consequences may involve losing their jobs and any prospect of being in power for at least a generation or so.

  4. “The political class have a responsibility to put their own house in order; it’s not the electorate’s job to determine the rules of parliament.”

    Aye, but there’s the rub. Even if TDs were minded to change Dail procedures to exercise more scrutiny and restraint of government – and there is no hint of any incentive or desire to do so (and plenty of evidence of the opposite), what assurance would they have that voters would approve? Would voters be displeased that they would now be devoting less time and attention to their constituency advocacy and mini-onbudperson’s roles? And would voters consider that the TDs might be over-riding the effect of their right to use any election that came along to send a message to government? In sum, are voters broadly happy with the current arrangements? They have TDs where they want them and there could be unintended consequences if they were to get any ideas above their station. Not expecting answers, but I think these are valid questions.

    In addition, we now have something like a ‘national government’ (similar to the 2005-2008 ‘grand coalition’ in Germany). All the real policy debates have been internalised and take place behind closed doors. Policy decisions, inevitably, will be based on trade-offs and compromises to secure reasonably broad-based support. Maybe voters are broadly content with this approach and are doubtful about the benefits of reforms that might expose this process to more scrutiny.

    There is a also a distinction between making and implementing the right policy decisions (an area where all governments assume omniscience and demand omnipotence) and having procedures in place that increase the probability of making the right decisions. Irish voters have almost no experience of the latter and might justifiably be sceptical.

    All in all I can’t see a failure to reform parliamentary procedures exposing TDs to the perils you describe.

  5. I don’t see why the no vote was such a shock when you consider the attitude of the majority of Irish people to rules and the law.

    This vote if passed, would have given the Oireachtas the power to identify and ‘blame’ those who caused whatever problem was being investigated and if there’s one thing the majority of Irish people would never be in favour of, it’s of anyone being identifed and held to account.

    How ironic that Peter Sutherland was Chairman of AIB during the time the tax evasion covered by the DIRT Inquiry took place and if the Oireacthas had these porposed powers then, it would have been able to identify his corporate governance failures in that either he didn’t know what was going on, so why not or did he did know, but did nothing and why not.

    Of course for all the good the DIRT Inquiry did so, it did nothing to change the corporate culture at AIB and having got away with it, we now know what those people who should have been held to account went onto to do and now the great Irish public have let them off the hook again.

    There’ll be no banking inquiry or any identiying AIB/BOI/Anglo/INBS staff who failed in their jobs or even worse public servants who failed in their jobs and certainly no politicans will be identified.

    The important bit was when the change states ‘shall be regulated by law’ which means when the law is proposed it can be challenged whereas the principle of allowing the Oireachtas to investigate an issue is enshrined in the const as it should be given the Oireachtas is the supreme power in the land as it is the only representative of the people. The judges are an unaccountable group with their own agenda based on their own life experiences, predjuicies and politicla afflications and cannot be held to account by the people whereas TDs ca nbe held to account.

    The letter from former AGs (including one who had a murdered hiding in his apartment during GUBU!!!) was a shocking stepping over the line and they should be called to task for it.

    I hope the matter is put to a vote again.

    • ” … the great Irish public have let them off the hook again.”

      Er, no Des, ’twas our puny pols what done it. If these same critters wanted to, they would have 250,000 folk on the street. They do not. Ditto for the trades union. Not one of the four voters in our house voted “Yes”, and I know many others who did likewise. We KNOW what we are dealing with. Tricky, two-faced, treacherous critters (in aggregate, you understand).

  6. @Desmond,

    We can only speculate about the motivatuons of the majority who rejected this inquiries amendment, but, like Brian Woods, I would be reluctant to attribute base motives to them.

    The latest noises emanating from government suggest that this whole programme of ‘optical illusion’ political reform could drift out and out. And I use ‘optical illusion’ deliberately, as there was never any intent to address the pressing fundamental issues of the allocation and exercise of political and economic power.

    This set of Ministers quite enjoys exercising the excessive executive dominance they’ve secured. Many have waited a long time to get their fingers on the levers of power and patronage. In this instance, a couple of them, Ministers Howlin and Shatter in particular, allowed the power to go to their heads far too quickly, but a majority of those voting on the amendment taught them a salutary lesson.

    Even if this government were to be re-elected, quite a few of its members are getting long in the tooth and they may be eased out after one term to make space for some of the ‘Young Turks’. Therefore, they are determined to make hay while the sun shines.

    It is also necessary to remember that the ‘government machine’- and all those vested interests beneficially associated with it – are eager to get back asap to ‘business-as-usual’. Therefore any structural reforms that will be pursued will also fall under the ‘optical illusion’ heading.

    Same as it ever was.

  7. The judges were mainly responsible for the failure of the Oireachtas referendum. Their scare tactics on the last week of the campaign worked dividends. If the referendum was passed, there would be little need for further tribunals, which have being a money spinner for the judiciary system.

    The failure of the Oireachtas referendum shows how far that this Government has to go to challenge vested interests in this country. What chance has the Government got of taking on the closed legal and medicine professions now.

    It is a real shame that Irish people can now not see the likes of Sean Fitzpatrick and David Drumm questioned for their actions while at Anglo Irish Bank. Maybe in the near future the Government can put the Oireachtas referendum to the people again without the prospect of it being ambushed by legal profession.

  8. The Irish electorate was well able to differentiate between the two referendums. They listened to the arguments on judicial pay and the overwhelming majority still voted in favour. But legitimate questions/doubts were raised in the media regarding the inquiries referendum by the eight AGs and some legal academics. Government figures then did not (or perhaps could not?) adequately address those concerns. Probably the best argument came from Gwynn-Morgan’s “harmonious interpretation”, which still failed to convince. I suspect if these issues had been adequately debated the majority against might even have increased.

    I previously labeled the wording ill-considered and rushed. In retrospect I wonder was it. Have been poking back in some of the original debates and documentation from the Oireachtas Committee on the Constitution’s examination of the Abbeylara issue. What’s clear is that many of the issues surrounding this debate were very well trashed out. A good example is the committee debate in December 2010:

    Legal academic John O’Dowd gives an excellent exposition and gives some very good answers on questions on parliamentary inquiries. The German model of parliamentary inquiry, where a parliamentary minority (1/4 of Bundestag MPs) can institute and have significant rights in a parliamentary inquiry, is discussed in some detail. John O’Dowd argues that, without such a mechanism, inquiries will likely be government controlled and dominated. Some of the pitfalls in a blanket exclusion of the courts from parliamentary inquiries are also described. And Minister Howlin was a member of this committee and present at the time for the quoted debate. It’s hard not to conclude he was very well informed on the various issues involved.

    Minister Howlin would have been aware of the German inquiry model. If his intent really was to increase the powers of the Oireachtas relative to the executive, I’d feel he should have introduced one modelled more after German Basic Law article 44 giving a qualified minority inquiry rights. He didn’t ( John O’Dowd even outlines a possible approach to such a wording in page 7 of his submission to the committee )

    Even the final Oireachtas committee recommended wording, though it didn’t suggest any such minority rights, didn’t lock out the courts. It’s quite probable the modified wording the Minister came up with would have. I suspect that that was the actual intent. For perhaps understandable reasons (having previous tangles with the courts in the past re Abbeylara) the Minister seemingly decided to go with the simple but also blunt and unsubtle solution of excluding all aspects of the inquiry process from judicial review. There was a later modification of the wording on foot of some concerns (not sure this would have made much difference).

    There is a separate issue that freedom of speech probably isn’t adequately protected relative to concern for reputation in our constitution. There’s probably a very good argument for reform of our defamation laws and a re-balancing of the relationship between freedom of speech and reputation. Some of the awards for defamation have reached ridiculous levels in our courts. An defamation award could easily pauperize someone or cause them to lose their home. Receiving such a high-stakes writ must be a truly terrifying experience. Everyone wants to defend their good name. But such writs are mostly the preserve of the rich and powerful who can afford to pay small armies of lawyers. This no doubt can have a chilling effect at times on freedom of expression in the media and elsewhere. The 1996 report of the Constitution Review Group actually had some very interesting things to say regarding such a re-balancing (see from p. 268 onwards). It makes recommendations how article 40.6.1 could be amended modelled on article 10 of the ECHR to offer greater protections to free speech. This is probably relevant to powers of inquiry also. Having a more sensible relationship between freedom of expression and reputation could make the subsequent job of drafting a powers of inquiry amendment far easier.

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