Making a mountain out of an amendment

The Referendum Commission faces another difficult challenge, writes Dr Conor O’Mahony

The constitutional amendment on children that will be put to a referendum on Nov 10 will, if passed, be the 31st change to the Irish Constitution. Of all 31, it will be the second-longest amendment (shorter only than that which followed the Good Friday Agreement), as well as one of the most complex. It proposes to insert an entirely new article into the text, consisting of four sections, with four further sub-sections. Moreover, it deals with sensitive issues concerning the relationship between children and parents, and between families and the State, and does so in technical and legalistic language.

In contrast, much of the campaign to date has been characterised by clichés and bland slogans, with the yes campaign telling us that the amendment will “make children visible” or “protect children”, with only occasional detailed explanation as to how or why.

Similarly, the no campaign too often characterises the amendment as an attack on parents and the family, but fail to reveal what it is in the text that supports that claim.

A recent poll showed that only 10% of voters feel they have a good understanding of the issues, while more than 60% feel they have little or no understanding.

For all of these reasons, the task of providing voters with sufficient information to allow them to make an informed decision is a sizeable one. The task falls to the Referendum Commission, an independent body charged with providing an explanation of the subject matter of constitutional amendments, promoting public awareness of the referendum, and encouraging the electorate to vote. The commission is established on an ad hoc basis each time a referendum arises; it is not a permanent body.

Recent referenda have seen the role of the commission come under increasing scrutiny. After the first Nice treaty referendum was defeated in 2001, the commission’s function was reduced to simply explaining the proposal; its former function of providing arguments both in favour of and against the proposal was removed. The thinking behind this change was to avoid lending credibility to spurious arguments, but the commission found itself restricted to making strictly neutral, informative statements.

Striking a balance is more difficult than it might appear, and inevitably, campaigners will accuse the commission of bias if any of its public statements are perceived as advocating a yes or a no vote. After the referendum on Oireachtas inquiries, Brendan Howlin, the public expenditure minister, accused the chairman of the commission, Mr Justice Bryan McMahon, of making statements that influenced voters to vote no (but subsequently apologised on several occasions). More recently, Sinn Féin TD Pearse Doherty mounted an unsuccessful court challenge during the fiscal treaty referendum, alleging that information issued by the commission was inaccurate.

For these reasons, the commission finds itself walking a tightrope with its hands tied; worse still, it often has to do so under severe time pressure. In a seminar in UCC recently, Mr Justice McMahon highlighted a range of problems that flowed from the fact that the commission only had five weeks to work on the Oireachtas inquiries referendum. In this time, staff had to be assembled, television and radio ads recorded, and information leaflets produced and distributed to each household in the country.

Mr Justice McMahon suggested that a minimum of three months would be more appropriate and realistic for this burdensome range of tasks (as well as to allow the commission the opportunity to address any difficulties that might arise during the campaign). Current legislation provides that three months is the maximum time allowed to the commission, and recent practice has been to use only about half of that time.

In the context of the forthcoming referendum on the amendment on children, it seems that many of the mistakes of the past are being repeated. Barely one year after the Oireachtas inquiries referendum was defeated, the Referendum Commission has been afforded just seven weeks to carry out its work. This is a meagre increase in time given that the amendment on children seems, on its face, more complicated and more difficult to properly explain (and arguably carries more potential for controversy). Also worrying is the fact that it has been afforded €300,000 less to fund its activities than the fiscal treaty referendum — a reduction of 15%.

Over the next fortnight, the commission really has it all to do. It must explain a lengthy, complicated constitutional amendment to a public with little prior knowledge of the issues. In the process, it must go beyond the superficial slogans regularly circulated by the yes and no campaigns — but it must also try to avoid giving the appearance of being in favour of or opposed to the amendment. There is no doubt that Ms Justice Finlay Geoghegan and her team are formidable; the question is whether even they can overcome the obstacles and restrictions that face them.

* Dr Conor O’Mahony lectures in constitutional law at UCC


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