Referendums can be marked by ‘uninformed opinions’

Holding multiple referendums on the same day could see many individual proposals getting little or no attention, a leading political scientist has warned.

Speaking at the Citizen's Assembly, which is meeting this weekend to consider reform in the manner in which referendums were held, Professor Michael Marsh of Trinity College Dublin (TCD) evidenced the case of the Oireachtas Inquiry referendum which was held on the same day as the Presidential election in 2011.

It was held to broaden the scope of Oireachtas inquiries to allow them make adverse findings against individuals. The public rejected the proposition by 53 per cent to 47 per cent.

Professor Marsh said half of the voters who voted in that referendum could not recall any arguments for or against the proposition. Equally, almost half could not recall why they voted yes or no at the ballot box.

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Professor Marsh suggested it was a “cautionary tale” and illustrated the danger of so many people going to the poll with “uninformed opinions”.

Members of the Citizen's Assembly are on Sunday debating how referendums are held in Ireland, with a view to making recommendations to the Oireachtas.

Speaking to the forum on Saturday, Prof Marsh said multi-option referendums where voters had more than two choices was worth looking at as a serious proposition even though an Oireachtas committee had previously concluded it would be too complicated.

University College Cork political scientist Dr Theresa Reidy said the notion of citizens' initiatives, as existed in many countries most notably Switzerland, had been considered for Ireland but never implemented.

Direct democracy

Citizens’ initiatives allow for the triggering of referendums when a certain number of signatures were gathered.

The 1922 constitution included a provision for an initiative which would allow for a referendum if 5 per cent of citizens signed a petition but this provision was dropped in the 1937 constitution.

The Whitaker report into the constitution in the 1990s was strongly against it, but the Constitutional Convention of 2015 was in favour.

She said referendums based on citizens’ initiatives had mixed outcomes.

They could lead to a “tyranny of the majority” which might take away the religious freedoms or language right of minorities.

It could also lead to policymakers being inhibited in their choices for fear that their legislation would be overturned as a result of a petition.

Professor Gary Murphy, the head of the School of Law and Government at Dublin City University, told the assembly that referendums have allowed "fundamental change" to occur in Ireland. There have been 40 since the foundation of the State including the referendum to pass the constitution in the first place.

Of these, 29 have been approved by the people and 11 rejected. There have been four repeat referendums.

Professor Murphy said the constitution remains under the control of the people and it is enhanced as a result.

Controversial

"Thus significant and often controversial changes to the constitution in such areas as morality, the EU and Northern Ireland have the imprimatur of the people and a legitimacy that could not be achieved by politicians making these decisions in parliament," he said.

Professor Murphy noted that in all the referendums that have failed, the main opposition party has not supported the proposition with one exception. This was the one in 1937 which approved the constitution in the first place.

Dr Conor O'Mahony of University College Cork (UCC) said the outcome of two Supreme Court judgments which prohibited the spending of public money on advocating one side or the other of a referendum was "relatively uncontroversial" and had been recommended by the Council of Europe as necessary "in order to guarantee equality of opportunity and the freedom of voters to form an opinion".

The judgments in question were the McKenna judgment of 1995 which was taken after the Government decided to spend £IR500,000 on advocating for a yes vote in the divorce referendum.

The second was the McCrystal judgment related to the 2012 children’s referendum during which the Government spent €1.1 million on an information campaign that included a website, media advertising and a booklet that was sent to every household. The Supreme Court held, that while the material did not advocate one side or the other explicitly, it did tend towards the yes side.

Dr O’Mahony told the assembly members that the rules for how broadcast media cover referendum is largely dominated by the Coughlan judgment from 1995.

Broadcast media

It states that broadcast media must give equal time to both sides in a referendum. Such a stipulation can be viewed as “artificial” if there is overwhelming support from the beginning for one side of the argument, Dr O’Mahony suggested.

Broadcasters might feel compelled to manufacture even-handed disagreement. “This difficulty might lead to broadcasts choosing to avoid covering the referendum for fear of falling foul off Coughlan which is surely not what the Supreme Court intended,” he said.

Former Irish Times journalist Mark Brennock, who has managed the public media campaign for seven referendum commissions, suggested the end result of the Coughlan judgment may have led to a "culture of caution which may not be justified" in broadcast media.

Interviewers might be inhibited from challenging a referendum campaigner too strongly because of a fear of being accused of bias, he stated.

If a referendum was ever held to determine whether or not the Earth was wrong, an interviewer might be inhibited from suggesting to a campaigner for a flat Earth that “oh for God’s sake, don’t be ridiculous, sure look at the photo which shows it’s round.”

Professor Marsh said setting up a permanent electoral commission to supervise elections and referendums was a “no brainer”.

The political scientist said there was a general consensus among the political classes that such a commission should be set up on a permanent basis but nothing had been done to bring it into fruition.

Just why was unclear but he raised a laugh when he noted: “Suspicious fingers have been pointed at certain people in the Department of the Environment who have resisted. Anything more would likely be libellous.”