By Michael Gallagher
‘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 not to sign a bill ‘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).
(Clarification 3 October 2013, in the context of the abolition of Article 27 being an aspect of the Seanad abolition debate: The previous paragraph was originally worded without sufficient care. It is worth emphasising that the President does NOT have the power to put a bill to a referendum, despite the apparently widespread belief that he or she does. The power that he or she has is the power not to sign a bill, if petitioned by the specified number of parliamentarians, unless such a bill has either been put to the people within eighteen months and not vetoed by them, as explained below, or has been passed by the Oireachtas again within eighteen months and following a general election. Even the Referendum Commission’s Guide to the Seanad referendum (p. 6) implies that the president does have the power to put bills to a referendum – ‘This possibility of the reference of Bills to the people by the President will be removed from the Constitution’ – but given that that the first paragraph of this post originally gave the same impression I am in no position to cast aspersions.)
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.