Counting the cost

The Government expended a significant amount of its rapidly diminishing political capital in pursuit of what most legal experts agree is a rather limited amendment, says Conor O’Mahony

THE saying goes that you learn from your mistakes; if this is true, then we should hope that the political establishment will be considerably wiser after the children’s referendum.

In the end, the proposal to insert a new article on children into the Constitution was carried, but the result has come against a backdrop of extremely low voter turnout, high levels of misinformation during the campaign, and a Supreme Court decision finding that the Government spent €1.1m on an information campaign that was in breach of constitutional principles.

The net result is that the Coalition has expended a significant amount of its rapidly diminishing political capital in pursuit of what most legal experts agree is a rather limited amendment.

The ultimate margin of victory of 57.4% to 42.6% is narrower than might have been expected a fortnight or more ago, but is less surprising when viewed in light of a turnout of only 33% and Thursday’s events in the Four Courts.

Apart from one or two exceptions, the record of recent years shows that low turnouts tend to favour a no vote; the biggest variable tends to be the distribution between those who vote yes and those who stay at home. No voters are usually more motivated to turn out in referendums, and it was always likely that a low turnout would lead to a higher proportion of no votes in the final tally.

The fact that the Government was found, less than 48 hours before polls opened, to have misused public funds to advocate a yes vote was another factor likely to have caused some undecided voters to vote no. This observation is a little speculative at this early point, but it seems safe to say that the Supreme Court decision in the McCrystal case didn’t help the yes side.

The decision to hold the vote on a Saturday was a worthwhile experiment, but did not have the positive impact on turnout that was hoped for. Further research will be needed into why people chose not to vote, but the timing of the poll is only one of many features. Yesterday, the Tánaiste and the minster for children complained of a lack of debate in the early stages of the campaign, caused in large part by the absence of an organised no side, and suggested that this may have been a cause of low levels of voter interest.

If this is true, then the Government has only itself to blame. The standout feature of this amendment was the way in which it was tailored towards achieving the greatest possible level of consensus rather than the most effective legal reform. If nobody came out to oppose it at first, it was because it was designed precisely to this end. Careful legal analysis of the amendment shows that it changes so little that the majority of conservative groups found little reason to campaign against it.

A knock-on consequence of this was that most of the no campaigners who eventually did emerge took a rather extreme line in the reasons they presented for rejecting the amendment. Perhaps the biggest factor in generating a sizeable no vote was the fear generated by the no campaign that the State would remove children from caring homes and that loving parents across the country would be left playing second fiddle to social workers,

This fear was whipped up through irresponsible and, at times, outrageous statements by prominent no campaigners who either failed to understand the legal implications of the amendment or were deliberately misleading voters in pursuit of their ideological agenda. Those who voted no on the basis of such hyperbole should watch carefully to see whether the predicted apocalypse actually materialises.

Thursday’s decision in the McCrystal case has placed a huge focus on the 1995 McKenna decision, which prohibits the use of public funds to advocate a yes vote. Far less attention has been given to the 2000 Coughlan decision, which requires equal broadcasting time for both sides. The decision has had a paralysing effect on hosts of radio and television debates. For fear of violating the balance requirement of the Coughlan decision, they allow campaigners to say almost anything they want over the airwaves, with minimal fact checking or scrutiny. This disproportionately benefits scaremongers, and the effect has been seen in the eventual vote tally.

Coughlan combines with the limitations placed on the role and resourcing of the Referendum Commission to have a hugely detrimental effect on the quality of information and debate available to voters. As it happens, the Referendum Commission did an excellent job in this campaign within the constraints placed on it; but with more time, an expanded budget and a less restricted role, the commission could offset some of the worst effects of the Coughlan decision.

Information and debate circulates in a far less controlled way in the print media than in the broadcast media, and is completely unregulated on the internet. Knowing this, and seeing how much misinformation circulated on television and radio during the campaign, the value of the Coughlan decision (as it is currently implemented) becomes questionable. One possibility for the future would be to devise a way for the Referendum Commission to exercise a fact-checking role that would inject some quality control into proceedings. If yes and no campaigners have a legitimate claim to equal broadcast time, then surely the voting public has a legitimate expectation of reliable information.

Yes campaigners hailed yesterday as a historic day for children in Ireland but only time will tell what the real impact of this constitutional change will be.

* Conor O’Mahony lectures on constitutional law at UCC

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