All points of view must be treated as equal before people decide in a referendum

Everyone, it seems, wants the game rigged their way. Before Christmas, I attended a broadcasting-related conference at which, after a couple of presentations, contributions were invited from the floor. Immediately, a marriage-equality campaigner demanded that "extremists" be debarred from panels debating gay marriage – it being (apparently) obvious that public opinion overwhelmingly favours changing the law. A climate change campaigner called for sceptics to be excluded from debates on his topic. A spokesman for Fine Gael chipped in to say that the Coughlan judgment was hampering the work of the Government and should be reversed.

I modestly proposed that, since the Irish Constitution at any particular moment represents the will of the people, there might be some responsibility of journalists to go beyond providing uncontested platforms for those agitating for constitutional change. Although several of those present subsequently sought to interpret me as suggesting that individual journalists have a responsibility actively to defend the Constitution – a position with which they disagreed – I hadn’t made any such demand, at least not in respect of individual journalists. What I’d proposed was that journalism, somewhere about its precincts, carries a responsibility to enable the constitutional status quo to be defended. A subtle distinction? Not really: this idea is implicit in, for example, the statutory requirement for fairness, balance and objectivity in broadcast media.

In an article in this newspaper last Saturday, co-authors David Farrell, Theresa Reidy and Jane Suiter suggested that the Government could simply legislate its way around the Coughlan judgment, which requires that the sides in a referendum debate be accorded equal broadcasting opportunities.

This, they contended, “has been interpreted as meaning equal coverage must be provided on the airwaves to both sides of the argument. The obvious problem with this principle is that on those occasions in which the vast bulk of opinion – at least on the part of the campaigning groups – favours one side, the broadcasters are seriously constrained in their ability to broadcast on the issue. This was evident in the referendums on children’s rights and the Court of Appeal. There are grounds for arguing – as [Minister for Justice Alan] Shatter did in the Dáil on December 17th – that the broadcasters are interpreting Coughlan too rigidly, and that what is required is that both sides of the debate are presented in a proportionate rather than an equal fashion. But if the Government really believes the broadcasters are being too cautious in their interpretation of Coughlan, it should legislate to fix this.”

But how might it be established that “the vast bulk of opinion . . . favours one side”?

The whole point of holding referendums, after all, is to discover the content of public opinion – under conditions in which fairness, balance and objectivity are, with good reason, demanded. If it can be assumed in advance that majority opinion can be divined from some factor like the vociferousness of campaigning groups, the consensus of the Oireachtas, or information gleaned from opinion polls – does this mean that a referendum is to be regarded as no more than a rubber stamp on a decision arrived at by some such alternative route? When it is demanded that debates be presented "in a proportionate rather than an equal fashion", we are entitled to ask: proportionate to what?

There are indications here that we may be slipping into a way of thinking about referendums in which the interpretation of public opinion would in effect – preemptively and potentially prejudicially – be farmed-out to mechanisms other than formal democratic processes. If an opinion poll, for example, could be treated as a democratic instrument, why would we need referendums? In formally consulting the people, surely anything we already “know” about “public opinion” must be discounted?

While any citizen has a right to propose changing the Constitution, nobody is entitled to a free run in overturning the settled view of the people as expressed in Bunreacht na hÉireann as it stands. Anyone proposing such a change must make a case in a public debate. The mere fact that an issue excites interest among lobby groups or parliamentarians, or lends itself to fashionable sentiment expressed in opinion polls, should accord an argument no special advantage in the debate proper, which is by definition required to occur in as close as practicable to sterile conditions, with both sides accorded equal respect.

The 2012 referendum on the “children’s rights amendment” actually represents a persuasive argument for an equal allocation of broadcast time. In that debate, there was negligible Oireachtas representation for the opposing view, and no appreciable organised No lobby. Yet, in the end, more than two in five voters came down against the amendment. If the logic of Farrell, Reidy and Suiter had been adopted, the 42 per cent who voted against that amendment would have been denied an opportunity to hear the arguments they ended up supporting – on a pre-emptive assessment of the actual division of public opinion.