Irish Referendum Practice from McKenna (1995) to McCrystal (2012).
This is part two of a two part series. To read the first article in the series you can find it here
By Anthony Coughlan
“We will fix that Stalinist body" ... Comment by the late Brian Lenihan TD on the then Referendum Commission, Autumn 2001, in the lead-up to the second Nice Treaty referendum.
And How They Fixed It:
In December 2001 the Fianna Fail Government then in office put a Bill through the Oireachtas (Legislature) amending the 1998 Referendum Act so as to remove from the statutory Referendum Commission its function of setting out in a fair and neutral manner the relevant arguments for and against any proposed constitutional amendment. This was done on the last day before the Oireachtas rose for the Christmas holidays that year, when all stages of the relevant Bill were pushed through the Dail and Seanad in one day, with two days notice to the Opposition. Because of these circumstances this move went virtually unnoticed by the Irish media at the time.
1. Irish Citizens as Legislators:
Irish constitutional referendums are a form of direct legislation in which citizens are voting either to accept or to reject a Bill to amend the Constitution which has been put before them by the Government of the day. Citizens voting on a Referendum Bill are in an analogous position to TDs and Senators voting on Bills put before the Oireachtas by the Government.
Once the Government has put a Bill before the People by instituting a referendum it is clearly illogical, unfair and undemocratic for that same Government to use public money, which comes from citizens on both sides on any referendum issue, to advance the point of view of one side. International best practice in referendums recognizes this.
For Governments to act otherwise is like using public money to induce parliamentarians to vote in a particular way, or offering a metaphorical box of chocolates to each voter at general election time in return for their votes. It is constitutionally quite legitimate of Governments to spend public money on the independent Referendum Commission to enable it ensure that citizens are properly informed of the referendum issues, as was the case before the Commission was emasculated by the Fianna Fail Government in 2001 when its function of setting out the pros and cons of proposed constitutional changes was taken from it.
2. No Publically Funded Government "Information Campaigns" in the 11 Referendums Held Between 1937 and 1987:
In the 11 constitutional referendums which the Irish State held between the adoption of the Constitution by popular referendum in 1937 and the Single European Act referendum in 1987, no Irish Government spent public money advocating a particular result.
Government Ministers and TDs were and are entitled to campaign individually in referendums and to spend their personal and party funds in support of the constitutional change which the Government they belong to wishes to bring about. But that is quite different from spending taxpayers’ money for that purpose. Most people will agree that it would be quite undemocratic and unconstitutional of a government to use public money, in principle without limit, to try to persuade citizens in a referendum to vote to restore the death penalty, to extend its own lifetime indefinitely or to abolish the judiciary.
Yet if public money can be spent in pursuit of a Government desire to change the Constitution, such spending would in principle be valid. Clearly once a constitutional amendment has been put before the People for decision the Government which does that should be scrupulous in respecting the rights of citizens in their legislative role and not try metaphorically to twist their arms, or to confuse or mislead them regarding the implications of the constitutional change which it is within the People’s absolute right to accept or reject.
3. The Haughey Government Was the First to Act Unconstitutionally in Referendums:
The first time that an Irish Government spent public money in a one-sided fashion in a referendum was in the Single European Act(SEA) referendum in May 1987. This came about as a result of the Crotty judgement of the Supreme Court. The FitzGerald-Spring Government of the time had attempted to ratify the SEA without a referendum.
The Supreme Court forbade that and laid down the any EU treaty which provides for a significant further surrender of sovereignty to the EU had to be put to referendum, for the Irish people are the repositories of State sovereignty and only they can therefore surrender it.
The constitutional amendment to permit the ratification of the SEA would quite probably have gone through without difficulty at the time, but to make assurance doubly sure the then Haughey Government spent large sums of public money on newspaper and billboard advertisements setting out “Ten Reasons for Voting Yes”. These were placed by the Government Information Bureau.
4. The McKenna Case 1995... Citizens' Rights to Fairness, Equality and Democracy in Referendums:
In the 1992 Maastricht Treaty referendum on the adoption of the euro-currency and related matters the Albert Reynolds-led Fianna Fail Government of the time farmed out its “Vote Yes” campaign to a private advertising agency. This plastered the country with publicly financed billboards urging a Yes vote, among them one which proclaimed: “A Vote No Disempowers Women” !
Patricia McKenna, who had supported Raymond Crotty in his case on the SEA Treaty, challenged the constitutionality of this one-sided taxpayer-financed expenditure. Her case was dismissed by Mr Justice Declan Costello in the High Court. As this judgement came virtually on the eve of the Maastricht referendum, she did not appeal it.
With remarkable public-spiritedness Ms McKenna revived her case on the unconstitutionality of spending public money in a one-sided fashion in referendums when it came to the Divorce Referendum three years later, even though she personally and her then party, the Greens, were on the same Yes-side on the divorce issue as the then Bruton-Spring Government.
Again she lost in the High Court before Mr Justice Ronan Keane, who declined to overthrow Justice Costello’s High Court judgement of 1992. On appeal to the Supreme Court however Patricia McKenna won her case and that Court laid down the “McKenna principles” setting out clearly the rights of Irish citizens to fairness, equality and democracy in constitutional referendums.
5. The Coughlan Case on Referendum Broadcasts:
The Supreme Court judgement in McKenna was given just one week before the 1995 Divorce poll and the Government had to pull its extensive taxpayer-financed Yes-side advertisements on the weekend prior to the voting.
This made political party broadcasts on radio and TV all the more important for the Yes-side in the last days of that referendum campaign. As all the Oireachtas political parties were on the Yes-side on divorce, this led to a situation in which 42 minutes of free broadcasting time on RTE were given to the Yes-side in the five days leading up to the poll, as against 10 minutes to non-party groups on the No-side. A similar imbalance had occurred in previous EU and other referendums when all or most Dail political parties were on the Yes side in these.
Although Anthony Coughlan was not involved in the Divorce referendum, he believed that this imbalance in free broadcasting time was in breach of the statutory obligation on RTE and other broadcasters under the Broadcasting Acts to be objective, balanced and “fair to all interests concerned” in their coverage of all issues of public controversy and debate at all times. In a referendum every citizen is naturally an “interest concerned”.
Accordingly he complained to the Broadcasting Complaints Commission that RTE was in breach of its statutory obligations by permitting this 42-minute/10-minute imbalance of time in the days leading up to the Divorce poll. The Broadcasting Complaints Commission rejected his complaint. He sought judicial review of this rejection on the grounds that the Complaints Commission had erred in law. Mrs Justice Catherine McGuinness granted him this in the High Court.
In the subsequent trial of the action in that Court Mr Justice Paul Carney found that RTE had indeed breached its obligations under both the Broadcasting Acts and the Constitution and ruled that there should be broad equality in the broadcast treatment of both sides in referendums so far as free or uncontested broadcasts were concerned.
6. Dr. Garret Fitzgerald and Mr. Bob Collins... No "Stop-Watch Principle" Required:
RTE had no particular love of party political broadcasts and RTE management under its then Director-General Mr Bob Collins had no desire to appeal Mr Justice Carney’s judgement in the Coughlan case.
However Dr Garret FitzGerald, supported by Mr Billy Attley and Mr Desmond Geraghty, who were members of the RTE Authority at the time and old political opponents of Anthony Coughlan’s on EU matters, persuaded the Authority to insist that RTE Management should lodge an appeal. Their reasons are described by Mr Bob Quinn, who was also on the RTE Authority, in his book "Maverick: A Dissident View of Broadcasting Today" (Brandon Press, 2001). In the event RTE’s appeal failed and the Supreme Court upheld Justice Carney’s High Court judgement in favour of Coughlan.
Commentators sometimes misrepresent the Coughlan judgement as requiring RTE and other broadcasters to allocate exactly equal time as if by stop-watch between Yes-side and No-side proponents in referendums. This is a misunderstanding of what the judgement requires. The Coughlan case related to free or uncontested broadcasts - “party political” broadcasts as they are often called. Broadcasters are statutorily required to be balanced and fair as between all interests concerned in all their current affairs programming at all times, and not just in referendums.
Since the Coughlan case RTE has carried no free broadcasts in referendums, thus ensuring equality of treatment for both sides, although there is nothing legally to prevent it allocating such broadcasts equally between leading proponents of each side on these occasions or to umbrella groups on each side if such should exist.
7. The Original Referendum Commission... The 1998 Referendum Act:
The establishment of the Referendum Commission under the 1998 Referendum Act was not a necessary consequence of the McKenna judgement. Strictly speaking all that that judgement required was a return to the 1937-1987 situation when political parties, non-party groups and individual citizens did their own referendum campaigning and spent their own money without the Government using public money for the side which Ministers supported.
The Referendum Commission was however a piece of creative institutional engineering which had the potential of making Ireland an international pioneer in the democratic political education of its citizens in referendums. Section 3(1) of the 1998 Referendum Act gave the Commission three principal functions:
(a) to prepare and publicise a statement or statements informing citizens what the proposal to change the Constitution entailed;
(b) to prepare and publicise a statement or statements setting out the arguments for and against the proposal, based on submissions solicited from members of the public; and
(c) to foster and facilitate public debate and discussion on the proposal.
The Act laid down that these three functions should be carried out by the Commission in a manner which was “fair to all interests concerned”.
For the Referendum Commission to do a proper job in carrying out these statutory functions it needed to be given enough time to do its work properly and to be set up well in advance of any particular referendum. It needed sufficient public resources to finance that work, and common sense suggests that it should not be overloaded with different unrelated referendum propositions which it had to publicise at the same time. However the politicians in the then Fianna Fail Government, having put through the 1998 Referendum Act, had second thoughts about the Commission’s remit when it came to its first outing, for they set the Commission an impossible task from the start.
8. The Referendum Commission's First Outing... The Amsterdam Treaty and Good Friday Agreement Rerendums 1998:
The first Referendum Commission was called into being with retired Chief Justice T. A. Finlay as its chairman to publicise the Amsterdam Treaty referendum in May 1998. The secretary of the Commission informed A.Coughlan some years later that Mr Justice Finlay had in mind to fulfil the Commission’s task of fostering debate and discussion by holding a grand national debate on the Amsterdam Treaty in Dublin Castle between leading proponents of the Yes and No sides and using clips from that debate for subsequent TV adverts illustrating the two points of view. This would have made the adverts realistic and might have engaged citizens’ attention.
But then Taoiseach Bertie Ahern’s Government gave the Referendum Commission the Good Friday Agreement referendum - a wholly different issue - to publicise on the same day and such imaginative plans had to be scrapped. Similarly in the first Nice Treaty referendum in June 2001 the proposal to amend the Constitution to permit the ratification of that treaty was coupled with two other proposed amendments, one on the death penalty and one on the International Criminal Court.
Former Taoiseach Dr Garret FitzGerald remarked in one of his Saturday Irish Times columns at the time: “Is not the Government looking for another constitutional amendment to give to the Referendum Commission?” This idea of a fourth proposition was dropped as the Labour Party would not support it.
There is little doubt that the Government’s motivation in having multiple referendum propositions was to hamper the Commission in carrying out its functions as laid down in the 1998 Act, for the Commission had to explain to citizens what each of these three different constitutional amendments entailed and to put forward the main arguments for and against in each case. Its task was virtually impossible when there was insufficient time and multiple referendums, sometimes on contentious issues.
In their reports following each referendum Mr Justice Finlay and his fellow Referendum Commissioners expressed their frustration at the conditions in which Governments expected them to carry out their statutory functions.
9. Removing the Referendum Commission's Function of Setting Out the Relevant Pros and Cons of Constitutional Change ... The 2001 Referendum Act:
Following the victory of the No-side in the first Nice Treaty referendum in June 2001 Mr Bertie Ahern’s Fianna Fail Government decided to remove altogether the Yes/No function from the Referendum Commission and to remove also the Commission’s function of fostering and facilitating public discussion of the issues. They saw the Commission’s Yes/No function as an obstacle to reversing the People’s vote on the Nice Treaty.
Taoiseach Ahern gave a commitment to do this to the other EU Governments at the European Council meeting in Gothenburg, Sweden, in the week following the referendum when he urged them to continue with ratifying the treaty - for most EU countries had not yet done that - despite Irish voters’ No.
“We will fix that Stalinist body,” said Brian Lenihan TD to Anthony Coughlan following a debate on the Nice Treaty in Athlone College of Technology in autumn 2001. The “Stalinism” seemingly consisted in the Referendum Commission having to be satisfied that the arguments for and against in referendums had to be validly rooted in the actual amendment proposed.
To minimize public attention to their assault on the Referendum Commission the Government chose the last day before the Oireachtas rose for the Christmas holidays in December 2001 on which to do this. On that day, 14 December, with just two days notice to the Opposition, it put all stages of the Referendum Bill 2001 through the Dail and Seanad in a couple of hours.
This removed from the Commission its function of preparing and publicizing a statement setting out the relevant Yes-side and No-side arguments in referendums. It left the Commission with its original function of publicizing a statement on what the referendum was about. And it substituted for the function of facilitating debate on the issues a new function of promoting public awareness of the referendum and encouraging citizens to vote at the poll. These are the two functions the Referendum Commission still has.
The Referendum Bill 2001 was passed by 58 votes to 40 on its second reading. Fine Gael, Labour, the Green Party and Sinn Fein voted against the Fianna Fail Government’s proposal. Those voting against included 10 deputies who became Ministers in the Fine Gael-Labour Government which assumed office in 2011.
10. The Democratic Value of the Referendum Commission's Yes/No Function:
The democratic value of the Referendum Commission having to set out the main pros and cons of any proposed constitutional change fairly and impartially was that false, irrelevant or extraneous arguments on the pros and cons of the referendum proposition had necessarily to be excluded from the Commission’s information material.
The Commission had to be satisfied that the arguments put forward on each side were validly grounded in the actual constitutional amendment being proposed and in legitimate hopes or fears which citizens might have with regard to it. Obvious fallacies, irrelevancies or "ad hominem" arguments such as urging a Yes or No vote because some allegedly obnoxious person or party was on the other side could not be publicized by the Referendum Commission, although these are commonplace among private contestants in referendums and elections.
In Irish referendums the Government and Yes-side forces are seeking to change the Constitution, while the No-side elements are seeking to conserve it, to prevent change. From a democratic standpoint it is presumptuous to seek to prejudge the referendum result and predetermine the outcome by effectively taking money from one side for the benefit of the other.
There are always valid pros and cons to any proposal for constitutional change. At the extreme, even if opinion polls show a change to be desired by an overwhelming majority of citizens, there will always be some who will oppose any referendum on such grounds as cost.
A further consequence of the Referendum Commission having the function of setting out the relevant pros and cons of proposed constitutional amendments was that when private interests on each side were aware that the main arguments for and against would be put fairly and honestly before the public through the Commission’s advertisements, big-league private money had no incentive to intervene. At the same time the political parties and civic interests on each side continued to spend their own money as they had done in all Irish referendums since 1937.
The first referendum to be held following the removal of the Referendum Commission’s function of setting out the pros and cons was the second Nice Treaty referendum in October 2002. The Irish Government held this second referendum to reverse the result of the first, for the Nice Treaty itself remained unchanged. On this second occasion private funders, including private and public companies, weighed in in a big way, such that it has been reliably estimated that the cost of advertising by the Yes-side outweighed that on the No-side by a factor of ten to one.
On this second time round, moreover, the amendment to permit the ratification of the Nice Treaty was coupled with an amendment precluding the State from joining an EU common defence - both issues being put forward as one consolidated proposition to which citizens had to vote either Yes or No, for they could not vote on each of its elements separately. If citizens wished to prevent the State joining an EU defence pact, they had to vote Yes to ratify the Nice Treaty. If they wished to vote No to the Nice Treaty they also had to vote No to the amendment preventing the State joining an EU defence pact. The Referendum Commission then had to inform citizens how this dual proposition would affect the Constitution.
Quite possibly this two-propositions-in-one amendment was itself unconstitutional, but no one came forward to challenge it. The Commission carried out its new functions fairly, but the dual character of its explanations necessarily helped pile up votes for the Yes side. This was how the No vote of Nice One in 2001 was turned into the Yes vote of Nice Two in 2002.
11. Tax-payer Financed Government "Information Campaigns" Separate from the Referendum Commission's ... The 2008 and 2009 Lisbon Treaty Referendums:
In the 11 constitutional referendums which were held between the Supreme Court’s 1995 judgement on one-sided Government expenditure in McKenna and the 2008 and 2009 Lisbon Treaty referendums, no Irish Government attempted to run information campaigns parallel to the independent Referendum Commission’s statutory-based campaigns to inform citizens what the referendums were about.
The first breach of the McKenna principles by an Irish Government occurred in the 2008 Lisbon Treaty referendum. On that occasion the then Fianna Fail Government through the Department of Foreign Affairs issued a booklet with the title “EU Reform Treaty”. The ”Reform Treaty” was the Department’s name for the Lisbon Treaty which the booklet purported to describe. This was a highly selective and tendentious document which carried the following slogans on its cover that clearly amounted to implicit advocacy: “effective democratic union”, “progress and prosperity”, “peace and justice in the wider world”, “a union of values”.
Inside it summarised the provisions of the Lisbon Treaty under such headings as “increased democratic controls” and “equality between Member States”. The Foreign Affairs Department also placed newspaper advertisements featuring the booklet’s cover. These possibly had more influence on voters than the booklet itself. There was also a Foreign Affairs web-site which like the booklet implicitly pointed to the desirability of a Yes vote in the referendum even if neither booklet nor web-site urged explicitly “Vote Yes”.
Similar material was produced for Lisbon Two in 2009. Presumably the then Attorney General, Mr Paul Gallagher SC, advised the Fianna Fail Government of the time that these actions did not breach the McKenna principles. Presumably too its Fine Gael-Labour successor decided to follow the Fianna Fail Government’s partisan “information campaign” when it came to the next Irish referendums. And presumably its Attorney-General, Ms Maire Whelan, decided to follow her predecessor Mr Gallagher’s advice in relation to the taxpayer-financed information booklet, brochure and web-site which sought to influence the “Fiscal Treaty/Fiscal Compact.” referendum in May 2012 and the Children’s referendum in November that same year.
The booklet issued by the Department of Foreign Affairs in the Fiscal Treaty/Fiscal Compact referendum in May 2012, which was posted at public expense to all households in the State, was tendentiously selective like its Lisbon Treaty predecessor. It purported to describe the so-called “Stability Treaty”, even though the Treaty in question was generally referred to across the EU as the “Fiscal Treaty” or the “Fiscal Compact”, its full title being the “Treaty on Stability, Coordination and Governance in the Economic and Monetary Union”.
The first page of this booklet was titled “What is the Stability Treaty?”. Inside it was described as a Treaty which aimed “to support growth and employment…to protect the public’s money… and to be part of a toolkit to avoid another economic crisis”. Again these were tendentious phrases which clearly amounted to advocacy rather than objective information and were legitimately open to being questioned by No-side proponents who took a different view to the Government’s on the content and effects of that treaty.
12. Re-Affirmation of the McKenna Principles as Best International Practice … The 2012 McCrystal Case:
These partisan Government “information campaigns” using public money unconstitutionally were not challenged in the Courts at the time of the 2008 and 2009 Lisbon Treaty and the 2012 “Fiscal Treaty” referendums. They were successfully challenged by Mr Mark McCrystal in the 2012 Children’s referendum.
On the eve of that referendum the Supreme Court ruled unanimously that the booklet, advertisements and web-site issued by the Government on that occasion were in breach of the Court’s 1995 judgement in McKenna. In setting out their reasons the Supreme Court judges strongly reaffirmed the McKenna principles. Irish Governments could certainly spend public money in informing citizens of the main arguments for and against particular referendum propositions, but any partisan presentation was a violation of citizens’ rights to fairness, equality, and democracy on these occasions.
The Referendum Commission was clearly the most competent body to provide citizens with neutral information which accorded with the McKenna principles. As Chief Justice Mrs Susan Denham put it:
“It is questionable whether it is wise to ask a Minister, who is promoting a referendum on behalf of the Government, to publish neutral information on the referendum. It may be that it is itself inherently unfair to ask a Minister, and indeed her Department, which are promoting a referendum, and who clearly believe in its merit, and wish for a ‘Yes’ vote, to draft and publish neutral information. This role may be best performed by a body not invested in the referendum.”
The Chief Justice noted favourably the recommendation of previous Referendum Commissions for the establishment of “a permanent and ongoing body which would have ample time to prepare and promote public awareness of important constitutional amendments.”
The Supreme Court made clear in the McCrystal case that the McKenna principles accorded with best international practice regarding referendums. In their judgements the Chief Justice and Mr Justice John Murray referred to the “Code of Good Practice in Referendums” which was adopted by the Venice Commission for Democracy through Law, an advisory body of the Council of Europe, and the Council for Democratic Elections in 2006 and 2007.
This Code included the statement that
"Equality of opportunity must be guaranteed for the supporters and opponents of the proposal being voted on. This entails a neutral attitude by administrative authorities, in particular with regard to … public funding of a campaign and its actors."
"There must be no use of public funds by the authorities for campaigning purposes in order to guarantee equality of opportunity and the freedom of voters to form an opinion."
The Chief Justice also referred to Australia, where pamphlets distributed to citizens by that country’s Electoral Commissioner set out the arguments for and against proposals to amend the Australian Constitution. And she referred to UK referendum practice where an Electoral Commission can provide equal sums of public money to umbrella groups on each side in referendums. By challenging the Government’s brazen flouting of the Supreme Court’s McKenna judgement Mark McCrystal, like Ms McKenna before him, has clearly struck a significant blow for Irish democracy.
Note on Author: Anthony Coughlan was a supporter of the late Raymond Crotty and Patricia McKenna in their constitutional actions on Irish referendums in 1987 and 1995 respectively. He was himself plaintiff in the 2000 Coughlan case on partisan referendum broadcasts. He has been involved on the No side in EU-related referendums but was not involved in the other referendums mentioned above. He is Director of the National Platform EU Research and Information Centre and is former Senior Lecturer in Social Policy, TCD.