Analysis: Before the Nice Treaty the Referendum Commission, with little time, faced an impossible task. Now its job is even harder, writes Mark Hennessy
Six times since 1994 the Referendum Commission has put both sides of the argument before the public and encouraged voters to use their ballot.
Following changes in December, its role is now more limited. Rather than putting both sides, it must instead "foster and promote" debate and encourage people to vote.
The changes were provoked by concern that past efforts had produced dry, legalistic texts that did little to excite public interest. Last November the Oireachtas All-Party Committee on the Constitution recommended that money be divided among pro and anti campaigners.
The committee, despite some differing opinions, recommended that putting both sides of the argument was a matter for others, and not for an impartial third party. An even-handed listing of both sides led to "leaden rather than lively presentation", said the committee chaired by the Fianna Fáil TD Mr Brian Lenihan.
For a time it looked as if the Cabinet would go along with the All-Party Committee's funding proposal. It eventually decided this would open a Pandora's Box.
Referendums have been a minefield since the Supreme Court McKenna judgment blocked governments from spending taxpayers' money on one-sided campaigns.
Since then the commission has tried hard, with its hands tied behind its back. Under law, it is not set up until a polling date is set. After each campaign ends it goes back into hibernation.
By the time of the Amsterdam Treaty and the Belfast Agreement referendums, the commission itself had realised it was on a hiding to nothing.
"There was a clear pattern which suggested that the average person has become quite lazy when it means reading or helping oneself to information," complained a former chairman, Mr Justice Thomas Finlay.
Last November the former chief justice, Mr T.F. O'Higgins weighed in, arguing that McKenna's "pervading and continuing effect" lay behind the Nice defeat.
Referendums could become "unreliable and even dangerous" in future if the government of the day could not properly campaign in defence of its own argument.
In fact, governments had a duty to step in if voters were not properly informed, said Mr Justice O'Higgins.
Time, rather than any shortage of money, is the commission's key problem. For Nice it had just seven weeks. This time it has just over three. Past warnings have not been heeded.
Last December Mr Justice Finlay made it clear that final responsibility for Nice lay with the Government, and not with the commission. A campaign that should have been carefully planned, well thought-out and engaging ended up as "a series of somewhat disjointed initiatives".
"Where there is much to be done to improve the effectiveness of the commission's approach, it cannot substitute for a vigorous debate between the political parties and other groups," he said.
Now chaired by the former president of the High Court, Mr Justice Frederick Morris, the commission's other members are the Ombudsman, Mr Kevin Murphy; the Comptroller and Auditor General, Mr John Purcell; the Clerk of the Dáil, Mr Kieran Coughlan; and the Clerk of the Seanad, Ms Deirdre Lane.
Following its first meeting this month, the commission decided it did not have enough time to deliver information to every home.Instead, it would distribute booklets through post offices, libraries and other means and concentrate on newspaper, radio and television advertising.
On Monday, however, An Post came back to say that it could manage home delivery after all if it got the material by February 27th.
Under law, the commission can commandeer RTÉ time, and publishing advertisements in newspapers will not be a problem. However, it has had little time to work on producing informative, simple messages. "The Euro Changeover Board had 18 months. And it needed it," said one commission member.
However, "a general explanation" of the referendum may be no easy task. Few can agree on what it is about, while those who disagree with the commission's version are unlikely to remain silent.