Speaking in the Dáil in October 1922, Minister for Home Affairs Kevin O’Higgins commented on what was one of the interesting features of the proposed new Constitution for the Free State that future amendments to it would have to be subjected to a referendum. He suggested the use of referendums would “impress on the people more forcibly perhaps than would otherwise be the case that henceforth the law of this country is their law, is the creature of their will”. He also saw the potential of referendums to act as “a stimulus to political thought and the political education of the people”. The subsequent 1937 Constitution also gave the electorate a veto on all constitutional amendments.
Both O’Higgins’s contentions are under strain, as is evidenced by the current referendum campaigns which will end next Friday. There has been much reference to the ambiguity of some of the language in the proposed amendments and the future role of courts in deciding what that language will mean in practice. Does that not undermine the idea of the centrality of the people’s will? An Irish electorate that in 1983 agreed to the insertion of an amendment seeming to ban abortion hardly expected the Supreme Court nine years later to decide that was not the case. That was precisely the problem identified by attorney general Peter Sutherland in 1983; a wording for the amendment that he felt was “ambiguous and unclear”.
A 1996 report by the Constitutional Review Group concluded that the situation then allowed the courts “too much latitude in the identification of personal rights, is undemocratic, and infringes the principle of separation of powers and leads to uncertainty…the identification of personal rights should be made by the people themselves”.
Political scientists have given more attention to referendums in recent years given the frequency with which they are resorted to. Michael Gallagher observes that for the first 50 years after the establishment of this State “the referendum did not seem to be one of the more significant of the country’s political institutions…referendums occurred rarely”, but “in the period from 1972 to 2020 inclusive, Ireland held 14 general elections and 38 referendums…and many more votes were cast at referendums (52.1m) than at general elections (25.4m)”.
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The turnout for some of these referendums has been very poor; it was just 33.3 per cent for the one in 2012 adding specific children’s rights to the Constitution. That compares with over 60 per cent of the electorate voting in referendums on divorce, same-sex marriage and abortion, while the referendum in 1972 on joining the EEC is the only referendum to date to have mobilised more than 70 per cent of the electorate.
Numerous factors are likely to have affected turnouts – some referendums have been held in conjunction with other votes – but it also clear that some issues just do not engage the electorate, or it does not see them as having a practical relevance to their lives, or they are turned off by the numerous, sometimes contradictory claims made. The vote next Friday is likely to fall into that category; it might be mean, given the depth of feeling on the part of some about the issues involved, to characterise the current campaigns as involving the blind leading the bored, but it would hardly be a wholly unfair conclusion given the fog and antithetical claims around the amendments.
It is difficult to draw general conclusions about engagement with various referendum campaigns. It might have been thought that in 2012, given the exposure of so much egregious abuse of children in previous decades, there would have been more robust engagement. After the result – 57 per cent in favour and 42.6 per cent against – taoiseach Enda Kenny asserted that “the passing of this amendment will help make childhood a good, secure and loving space for all our children”.
But people might dispute that constitutional provisions have any such practical implication. Leo Varadkar, who directed Fine Gael’s campaign during that referendum, suggested “in the fullness of time” people forget low turnouts; that what mattered was what “history will record is that the Irish people voted today to enshrine children’s rights in our Constitution, and that makes it a historic day and a day for celebration”.
But history might record something different; the evolution of the referendum, in the words of political scientist Bill Kissane, “from people’s veto to instrument of elite consensus”. Whether some of the referendums “produce the kind of deliberation valued in a democracy” is debatable, suggests Kissane, especially when the implications are not clear. He further argues, “the referendum supplements representative democracy best when used rarely…its role as a constitutional safeguard is distorted…when constitutional changes are presented in such a way that the public are uncertain about the ramifications of their vote”.
An electorate needs to know precisely what it is voting for.