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.