JOINT COMMITTEE ON THE CONSTITUTION debate -
Tuesday, 25 Nov 2008

Constitutional Referendum Process: Discussion.

Chairman

Apologies have been received from Deputy Naughten and Senator O'Donovan. I welcome everyone to the third meeting in our review of the constitutional referendum process. The joint committee is undertaking a review of the constitutional referendum procedure prescribed by Articles 46 and 47 of the Constitution. This is the third in a series of meetings the committee will hold with individuals and organisations to hear their views on the constitutional referendum process. The committee will also consider the rules that apply in other EU member states in referendum campaigns, on which an exercise is being done through the Oireachtas Library and Research Service. The committee is focusing on the current arrangements, whereby information is imparted to the public during referendum campaigns. At the conclusion of this phase it will present a report setting out its opinion to the Houses of the Oireachtas.

I welcome Professor Michael Marsh, professor of comparative political behaviour and dean of the faculty of arts, humanities and social sciences, Trinity College Dublin; Professor Michael Gallagher, professor of comparative politics, Trinity College Dublin, and Professor Richard Sinnott, school of politics and international relations, UCD. We are grateful to them for taking the time to appear before the committee to contribute to our review. I thank them for the submissions sent to the committee in advance.

Before commencing, I inform our guests that members of the committee have absolute privilege but that the same privilege does not apply to witnesses appearing before the committee. I invite Professor Marsh to make his presentation.

Professor Michael Marsh

I have submitted a short outline of some of the points I want to make. Of the three presentations, mine may be the most tangential to what the joint committee is considering but I thought it best to provide some context for how voters use information and what information they use. It is sometimes easy to view the electorate as highly informed and highly interested readers of The Irish Times, sitting in judgment on the impressive arguments made by campaigners on either side, wading through the neutral documentation issued by the Referendum Commission and giving great thought to the issues before making a decision. No research carried out in the past 50 or 60 years into the way people make decisions justifies that point of view, which I am sure comes as no surprise to members of the committee who regularly rely on the electorate to make decisions. If they treated the electorate in that manner, they would probably bore them to death.

In elections voters decide and that is supposed to be very good for the system. It makes politicians accountable which is arguably very good for voters. It means they are involved in the process and become more rounded individuals. As the Greek philosophers said, democracy, all round, is good. It is also nice to convince ourselves that when voters make a decision, they make the right one, whatever it happens to be. We have to believe voters recognise what is in their own self-interest or the collective interest when they make their decision. For that to happen, they need a certain amount of information but the question is: "How much information do they need?" The answer is far from obvious but most people who have written on the subject have been interested in how voters can make good decisions while knowing almost nothing because that is what happens.

We might question whether people can ever know enough to vote on the Lisbon treaty. Rightly or wrongly, it was not written for the general public to read and I am sure very few did so. I am sure all the Oireachtas Members present studied it carefully from beginning to end but it is unrealistic to think ordinary voters would read it, in addition to all the documentation and reports connected with it, so as to ask themselves whether it was the best treaty possible or whether the negotiations with France could have achieved more. I doubt if anybody knows the answers to these questions; therefore, voters have to make decisions without them. An argument has been made to the effect that we should never hold referendums or even elections because voters are not competent to make these decisions. While few want to apply that thinking to elections, many would apply it to referendums, believing they are not a good idea and put demands on the voter to which he or she cannot live up.

Those who defend our procedures argue that voters are competent to make these decisions but that raises the question as to what is a competent decision. One answer suggests a competent decision is one made with full information but that is not possible; therefore, voters use shortcuts in making their decisions. For example, it can be useful for them to have ideologies because they provide a shortcut to making up their minds as to which party for which they should vote. They do not need to know 100 pieces of information about policy but decide that a party or one candidate, relative to another, is broadly within their ideological area.

Much of the literature on cognitive decision making and decision making in various conditions of uncertainty mentions the importance of shortcuts but we should consider what ones people use. They need shortcuts because they do not know very much. Professor Sinnott will talk more about this issue but all the information we have from Eurobarometer and other surveys tells us the Irish public knows very little about the European Union in terms of its rules, regulations and procedures. It is probably difficult to understand because it is so different from our own national political system. We know less than the average European population and press coverage of the European Union is much less extensive than in other countries, which is remarkable considering the number of referendum campaigns we have had in comparison with other countries. The press in other European countries is probably more interested because the European Union is a topic of party debate in these countries, which is not the case in Ireland.

The Referendum Commission polled people prior to the campaign and The Irish Times asked a similar question, as did the Millward Brown-IMS survey in July. The question was: “Do you think you understand the treaty?” It was perhaps salutary for the Referendum Commission that the results in the summer were no different from those in the spring nor from those found by The Irish Times in the middle of the campaign. The level of self-perceived understanding of what the referendum was about did not really change. People may have received more information but possibly became more confused.

My next point addresses the consequences of having more or less information. One consequence of having a lack of information is that people are more inclined to vote "No". That seems curious and somewhat irrational but a referendum has the purpose of changing the status quo with which somebody might be happy. If a referendum proposal is made which one does not understand, while it may make things better, it may also make them worse, in which case the sensible decision may be to stick with the status quo. Many studies suggest people who do not know vote “No”. Accordingly, if one wants people to vote “Yes”, they must be given much more information.

People use their general views about the European Union such as the view that it is generally good as a shortcut to making a decision. This was broadly the hope of the "Yes" side but voters have very poorly formed and unstable views on the issue of European integration. If we ask people for a typical attitude to the European Union and ask the same question a year later and another year after that, very few will give the same answer three times. There is great unreliability in the measurement of attitudes to the Union. If one asked people about abortion, the answer would be much the same each time as they know where they stand on the issue.

People are also more likely to turn out to vote when they have more information and are more likely to vote on the issues on which we would like them to vote, namely, issues related to that referendum. They can vote on many issues in a referndum such as whether they like the Government or the colour of the tie one of the spokespersons is wearing but we want them to vote on the topic of the referendum. Numerous studies show they are much more likely to do this if they have more knowledge. The two Nice treaty referendums highlight that point. The enlargement process had very little influence on the vote on Nice I, but neutrality had a big influence. In Nice II, neutrality did not matter but enlargement did because the issue had been redefined by more information.

In arguing that one can make good decisions without having much information, people say a campaign should have certain characteristics. Voters need to know where stand the spokespersons on whom they would normally rely. It is important that political parties and well-known interest groups are involved because people have a general notion of who they comprise and whether they trust them. There should be a good debate so that people are accountable for what they say and the better the standard of debate the more people are able to decide if a person is lying.

It is also important that expertise is at hand during debates. It is difficult to find a neutral expert and it is doubtful whether the moderators of the debates had enough expertise to point people in the right direction. The money trail should also be transparent. It should be known who is paying for spokespersons so that people can judge whether to believe a person. The Referendum Commission sent out a wonderful document and I am sure we all read it. I have no evidence for this point but, knowing how voters respond to most things, I imagine that most saw the document as coming from the Government. Even if they were told it came from the Referendum Commission they would be incapable of making a distinction between the commission and the Government.

Chairman

I will wait until all presentations have been made before I invite questions from members.

Professor Michael Gallagher

I thank the members of the committee for the invitation to the meeting. I sent in our submission but I am sure members will not have had a chance to read it so I will summarise the main points.

Chairman

It is a bit like the Lisbon treaty.

Professor Michael Gallagher

Yes, there is a parallel in that regard. The role of the parties in the referendum process has arisen in important judgments of the Supreme Court: the McKenna case and the Coughlan case being examples. There could be a perception that the courts are hostile to or sceptical of the role of parties. Judges have used phrases which give the impression that the courts feel the role of parties in the referendum process is to pass the necessary legislation in the legislature and leave it alone after that, allowing the people to decide on whatever basis they wish. However, a more detailed examination of the judgments shows that several judges spoke quite explicitly of the important role of parties and one spoke of the possibility of funding parties to facilitate them to campaign in referendums. The courts are not unrealistic about how the political world works and acknowledge that parties have an important role to play in referendums.

Parties become involved in referendum campaigns worldwide, as we would expect. A model in which parties are peripheral or sidelined is simply not realistic. Parties are nearly always centrally involved in referendum campaigns in every country. They do not necessarily monopolise referendum campaigns in the way they do general elections as interest groups and non-party actors play an important role. We might feel parties should be central to referendum campaigns as they are central to all aspects of politics and the latter would not function without them.

Parties have a great deal of experience in communicating with voters in terms that the voters understand. As Professor Marsh said, there is a danger that non-party actors or official bodies give voters the information they think they should have but in a way voters do not find attractive or easy to assimilate. Individual candidates and elected Deputies have experience of selling a message to voters in terms to which voters are receptive. Given that, in certain areas such as European integration, information levels are very low we should think of ways in which to empower and facilitate parties in getting more information to voters and should not block access to channels of information.

Given the substance of past judgments, even though courts acknowledge that parties have an important role to play in referendums, it is questionable whether they would agree to them having any special role, either in referendum funding or in the allocation of party political broadcasts. The McKenna and Coughlan judgments highlighted the belief that parties should not have any special privileged role. The courts believe in equality with respect to broadcasts and that all funding and allocation of broadcasts should be on the basis of equality between the "Yes" and the "No" sides.

The 2001 report of the predecessor of this joint committee on the referendum process asked whether equitability, instead of equality, would be preferable. It suggested that fairness was not always achieved by being strictly equal. A referendum may be very one-sided and the Good Friday Agreement was mentioned in this regard, where 94% voted "Yes" and 6% "No". People asked whether it was fair to allocate broadcast time and funding equally when public opinion was so skewed and whether it would not be fairer to be equitable in such circumstances. That is a plausible point and one to which I am sympathetic but there are problems in the approach. One such problem concerns the difficulty in defining what is equitable. Different people might look at the same situation and come up with different notions as to what was equitable whereas equality is not open to argument, being 50-50 and nothing else. "Equitable" is much harder to define. There has also been a suggestion that we use opinion polls as the basis for allocating funds. It would be very problematic to do so, however, and many questions would be asked about the nature of the poll in question or the desirability of averaging a number of polls and so on.

Difficulties would also arise as to whom was to receive funding if a decision was made to fund groups on an equitable basis. The 2001 report recommended funding political parties in proportion to their strength and funding other groups on an equal basis. That has been done in some countries but there are practical difficulties as to which non-party actors should get funding. It is fine if there is one big umbrella group on each side but one can envisage arguments from groups which wanted to be part of an umbrella group but were not allowed to be. Others may not want to be part of an umbrella group but would nonetheless argue they have a case for funding, or actors within a group might argue that they are not getting as much funding within the group as they feel they should. We can see plenty of scope for argument, therefore, and if these issues arose during a campaign and people went to the courts as referendum day loomed, problems would certainly arise.

The question of funding parties was mentioned in a previous report published by this committee and referred to by a Supreme Court judge in the Coughlan case in terms of whether different wings of an internally divided party should be funded separately. I am sure members will immediately see the difficulties that arise in identifying different groups within a party and deciding whether to make the division at Dáil or membership level. I am sure there is a general feeling that the courts should keep their hands away from what happens within parties rather than try to judge the balance of opinion.

I understand the committee is considering the questions of whether the Constitution should be easier to amend and whether the McKenna and Coughlan judgments could be overturned. In regard to whether equitable funding can be implemented without overturning the latter judgments, I am not a constitutional expert but it appears that it may be difficult. If a constitutional amendment is needed, I would think the chances of people agreeing are not high. I am not aware of any firm opinion poll evidence but I can see the way such a campaign would go. That applies a fortiori to changing the way the Constitution is amended. The Irish Constitution is unusually rigid in that most other constitutions in Europe do not require referendums to change every clause. Some can be changed by a super majority within parliament while others, such as the Spanish Constitution, distinguish between minor changes, which can be made by a super majority, and major changes, which require a referendum. The merits of these ideas can be considered in the abstract but, in practical terms, every change to the Irish Constitution has since 1937 required a referendum and changing the method of amendment would itself require a referendum on Article 46. The likelihood of the people agreeing to that are between nil and zero.

Professor Richard Sinnott

I thank the Chairman for inviting me to address the joint committee. I shall begin by expanding on my colleagues' comments regarding the level of information that characterises European referendums. Although similar arguments could be made for other referendums, we have the strongest evidence in respect of European referendums. I will then discuss the judgments made in the courts. I am not as optimistic as Professor Gallagher on whether the impression that the Supreme Court sometimes takes a negative view vis-à-vis parties in referendums is mistaken. That is an accurate impression and I will seek to document the grounds for my belief. I will also consider an alternative political science view of the political process which suggests that parties — and here I would agree with my colleagues — should be enabled and facilitated in playing a larger role in the referendum process. I will conclude by going out on a limb to address the subject of constitutional interpretation even though I am not really equipped to do so. I will argue, albeit without academic authority, that Article 27 of the Constitution could be interpreted as implying a role for political parties.

We have excellent evidence on EU referendums held in Ireland, including comparable evidence on the three most recent referendums on EU treaties. Comparing Nice 1 and the Lisbon referendum in terms of people giving their level of knowledge as a reason for not voting, the impact of a lack of knowledge on abstainers in the Lisbon referendum was of the order of 40%. In regard to people's subjective account in response to an open ended question of how they voted, it is striking that 40% of those who voted "No" to Lisbon and Nice one did so on the basis of a lack of knowledge. The significance of this evidence on the deliberations of this committee is that, irrespective of its result, the Nice II referendum process was better for the electorate because voters indicated in retrospect and on the basis of other data that they had a higher level of information than was the case in Nice l.

I will now proceed from the broad type of information given in response to open ended questions to scale and relate people's responses to how they voted. This question has been asked in several studies of referendums and people's understanding can vary from good to not knowing anything about the treaty. The level of support for the treaty varied remarkably according to the scale of subjective knowledge. Research of this sort rarely gets this level of percentage differences and, while this was clearly not the only factor and complex statistical analysis would be needed to tease out the effect of knowledge, it is undeniable that it had a big effect. No multi-variate analysis is likely to wash that out. We can also measure people's objective knowledge through the Millward Brown IMS survey. The Eurobarometer poll also gathered useful data on objective measures and knowledge by putting to respondents a number of true or false statements. A wide span is evident between those who answered four questions correctly, of whom 63% voted "Yes", and those who only answered one or no correct answers, of whom 39% and 28%, respectively, voted for the treaty. Whether measured subjectively or objectively, knowledge is crucial both in respect of abstentions and the way in which people cast their votes. My colleague, Professor Marsh, elaborated on the reasons for that in his presentation.

People's understanding of specific elements of the treaty were probed further in the Millward Brown IMS survey by relating people's judgment on whether items were included in the treaty to how they voted. Approximately one third of respondents thought conscription to a European army was part of the treaty. Based on the crude percentage model, if one believed that, one was highly likely to vote "No" whereas there was a high likelihood of voting "Yes" among those who believed otherwise.

A similar relationship emerges if there is a belief that the end of Ireland's control over its policy on abortion was in the treaty. If somebody believed that, he or she was highly likely to vote "No" but if the person felt it was not the case, he or she was much more likely to vote "Yes." This again underlines the point of how crucial knowledge is; the same reading relates to corporate taxation.

It is worth putting this quickly in context. The committee will note a diagram in the presentation which is a similar measure of objective knowledge based on the Eurobarometer. The blue section denotes the European average and the Irish level of knowledge is also illustrated, showing we are well below average. The position is underlined by the fact that if people's attitudes are measured with regard to the pros and cons of Ireland's membership of the European Union, or other measures indicating people's evaluation of membership or the process of European integration, we are on the positive end of the scale. We are positively disposed but this positive disposition is not backed by a high level knowledge.

This is the case whether knowledge is measured objectively or subjectively. The average European subjective level of knowledge is displayed in another diagram, along with the Irish level. If referendums on European treaties are to be held, a certain level of knowledge would be desirable from an empirical or practical and normative perspective.

My second theme is the referendum, the people and the separation of powers. I have several quotes from Justices of the Supreme Court. In one of the most trenchant, Mr. Justice Hamilton stated:

The role of the people in amending the Constitution cannot be overemphasised. The decision is theirs and theirs alone.

He went on to say that people are entitled to be permitted to reach their decision "free from unauthorised interference by any of the organs of State." That is what I mean about a strongly negative view of the role of parties or the Government. Mr. Justice Carney stated "In my view, a package of uncontested or partisan broadcasts by the national broadcasting services weighted on one side of the argument is an interference with the referendum process." It should be noted he used the word "interference". He went on to note this was of the kind noted by Chief Justice Hamilton. Addressing the political party issue, Mr. Justice Carney stated "The political parties are not assigned, by either the Constitution or the laws for the time being in force, any role in the submission of the proposals for the decision of the people."

Before giving an alternative view, I will first summarise the view of the Justices. The Supreme Court took the view that this is a matter of separation of powers and in a referendum the people are legislators who make the decision. On separation of powers principles, there should be no interference with this and they should be strictly left alone and given the task. They make the law in this regard and it would be a violation of the separation of powers for a Government to seek to influence that viewpoint.

The separation of powers is a classic piece of constitutional architecture but it is a rather narrow view of the policy-making process, although it is important. I draw the committee's attention to an alternative, which political scientists would call a structural-functional model of the political system. In this case it is just a translation of the tripartite division of powers — legislative, executive and judicial — as they are renamed rule-making, rule application and rule adjudication. The structural-functional view adds to this five other functions necessary for the efficient functioning of the political system.

There is interest articulation and interest aggregation. One is the stating of the demands of people and the second draws those demands into an aggregation of interests and coherent set of proposals or policies. There must be political communication and people must be recruited into roles in the political system. That does not just apply to office holders as voters must be recruited. People do not emerge at 18 as being automatically inclined to be a participating voter. They must be recruited to the process not just for elections but also for referendums. Finally, there is the process of political socialisation, where people learn and develop identities, as well as views, ideologies and preferences. This begins with family upbringing and goes on to experiences, particularly in early adult life.

The functions we have considered are performed by structures and, broadly speaking, rule-making consists of the Oireachtas, the Government and the people in a referendum. That is what we are interested in. Rule application consists of the Government and the Civil Service and rule adjudication consists of the courts. Even that is a substantial oversimplification because we are all familiar with instances where the courts effectively make the law. We will not go deeper into that issue for the moment.

With regard to interest articulation, what is particularly noticeable is that in most of these five functions they are performed variously but political parties turn up in all of them. As both my colleagues emphasised, political parties have an extremely important role to play in the functioning of the political system. It is my argument that if one is to adequately assess that role, one must consider a comprehensive account of the functioning of the political system and not just a separation of powers of the legislative, executive, and judicial. Other functions must be performed with regard to elections and referendums.

I will now go out on a limb and speak about Article 27. This identifies a Bill which "contains a proposal of such national importance that the will of the people thereon ought to be ascertained." This can be initiated by a majority in the Seanad and a third of the Dáil referring such a Bill — independently of the Government, President and anybody else — to the President. There are two ways for the will of the people to be ascertained under Article 27. A referendum may be held within a period of 18 months after the President's decision that the will of the people regarding the Bill must be ascertained. The alternative is dealing with the matter by a resolution of Dáil Éireann passed within the said period after a dissolution and reassembly of the Dáil.

This makes an equivalence between a referendum and a general election held after this issue has come to the fore. The election is assumed to be the equivalent of a referendum because the issue will have been dealt with in the election and will be expressed in a resolution of Dáil Éireann.

Considering those two possibilities and the equivalence that the Constitution makes between them in particular, one could note that one of the processes would have full-scale funding. We are assuming the issue at hand will be prominent in the election, although others will be present also. Funding for individual candidates will be on the normal scale we are accustomed to. The inconsistency is that if one goes the general election route, the issue will be resolved with the assistance of Government funding but if the referendum route is taken, no funding will be available for campaigning.

The last slide in my presentation is blank because I was not sure what my conclusion would be. I was also keen to hear what my colleagues had to say. By way of conclusion, I will summarise the points I have made. We have a problem of a lack of knowledge on the part of voters in referenda. The Supreme Court and High Court judgments in this area impose substantial constraints on referendum campaigning. Another difficulty is the effect of Mr. Justice Carney's rulings in regard to the role of political parties and to partisan broadcasts, which used to feature regularly in referenda and where the broadcasts were roughly proportional to the size of the political parties contesting the referendum. It is not merely a question of the lack of funding but also the knock-on effect this has on the rules that either apply directly to broadcasters or which broadcasters internalise and take as their own, with the result that there is this 50:50 breakdown of resources on each side and in terms of appearances on "Prime Time" and so on.

Therefore, the problem of lack of voter knowledge is exacerbated by constitutional constraints. There is an alternative view of the political process that is more complex and differentiated and which contends that the referendum process fits much better within a type of broad picture of the political system, its functions and structures. The implication here is that funding ought to be available. There are difficulties, as Professor Gallagher noted, in terms of how one funds entities other than parties. However, if we confine it for now to the issue of funding political parties, then there is a relatively easy set of criteria and decisions to establish.

That was the outcome of my political science analysis. I went on much more tentatively to suggest that this is compatible with the implications of Article 27 of the Constitution whereby an equivalence is made between an election and a referendum. It may seem odd, incongruous or inconsistent to say there can be funding, under Article 27, in the case of one of these means of ascertaining the will of the people but not in the other. However, as I said, I advance that view with some trepidation.

Chairman

I thank Professor Sinnott for his presentation. I propose that questions be taken in the following order: the Vice Chairman, Deputy Jim O'Keeffe; Deputy Woods; Deputy Howlin; Senator Boyle; Senator Regan; Deputy Kennedy; and Senator Alex White. Given the time constraints, I ask that members confine themselves to a maximum of eight minutes in asking questions and taking answers.

Deputy Michael Woods

In my capacity as Chairman of the Joint Committee on Foreign Affairs, I must attend a meeting at noon. I thank the delegates for their learned presentations.

Chairman

Would the Deputy like to go first?

Deputy Michael Woods

No, I do not wish to interfere with the arrangements.

Chairman

With the Deputy's permission, I will put any questions he may have to the delegates.

Deputy Michael Woods

Thank you, Chairman.

Deputy Jim O’Keeffe

I thank the delegates for attending the meeting. Apart from the reference to Article 27, which I suspect has never been used and in respect of which there is uncertainty as to how it might play out, the delegates are like the three tenors in that they are singing from the same hymn sheet. They have all pointed to the problems of lack of knowledge on the part of the electorate, the difficulty of imparting information on complex issues and the challenges posed by constitutional constraints arising from court judgments which limit the efforts of political parties and others in conveying information.

Taking all these constraints into account, it is clear that the current arrangements for informing the public about complex constitutional proposals are not working. Moreover, those whose objective it is to spread misinformation are having a field day in a situation where their claims cannot readily be countered. The result is that it is difficult, if not impossible, to make people aware of all the facts. People will not vote to accept a proposal if they are not aware of all the facts.

Are the delegates in general agreement with this summation of the current situation? Do they have any practical suggestions which we might include in recommendations to the Oireachtas with a view to initiating legislative change? I am very doubtful that the option of changing the Constitution is viable. The notion of introducing a super-majority, as in most other European countries, would be unacceptable to the electorate. It is part of our political culture to have a referendum process. As such, how do we set about improving that process so as to ensure that people are better informed? I am keen to hear any practical suggestions the delegates may have.

Chairman

Is Deputy O'Keeffe's question directed at one of the delegates in particular?

Deputy Jim O’Keeffe

No, I am interested to hear the views of any or all of the delegates on this point.

Professor Michael Marsh

It is probably unwise to devote too much attention to the objective of getting out all the facts. Everything we know about the way people work suggests that they do not base their decisions on the full facts and that they do not need them. Rather, what they need is a good steer from individuals they have reason to trust when it comes to advising them on such matters. They want guidance on how a particular referendum proposal might fit in with issues on which they are knowledgeable and in which they are interested.

We can now hold up the second referendum campaign on the Nice treaty as a shining example because, by the end of that campaign, the electorate displayed only a moderate rather then a huge level of ignorance of the issues involved. There are two issues to note in this regard. In that campaign, the "Yes" side outspent the "No" side by an enormous margin, which may not be something to the recommended. Nevertheless, that is the reality. Second, it was a well run campaign with both political party and non-party involvement. The latter included Professor Sinnott's colleague, Professor Brigid Laffan, and other energetic and obviously plausible campaigners.

In recent days, I spoke to an expert on referenda based at Oxford. He observed that if the Government hopes to win a second referendum on the Lisbon treaty, it will have to find plenty of credible people willing to sell it. These would include not just politicians, but also people from other walks of life whose opinions are considered credible by voters. This is the best that can be done. The Government can certainly disseminate more information but I remain sceptical in regard to voters' reception of anything coming from the referendum commission. If more information is to be circulated, it should be written by somebody who edits tabloid newspapers and not somebody who works for a judge.

Deputy Brendan Howlin

I thank the delegates for their thought-provoking presentations. I wish to explore two areas which I consider to be at the nub of this matter. The first is the validity of the actors in the campaign and whether, from a political science perspective, if we have this separation of powers, as suggested by Professor Sinnott, the role of the Oireachtas would end once the referendum Bill is enacted and passed on to the people. Or is this an absurd concept in that, in the normal course of events, it is the Government which crafts referenda proposals? The referendum on the Lisbon treaty did not follow this model because it comprised a proposal to endorse a complicated treaty. In general, however, there is surely an argument that the Government has a role in explaining and defending the implications and meaning of proposals whose wording it has crafted.

Beyond that, how can it be neutralised? I am interested in Professor Sinnott's suggestion in respect of Article 27. However, under the Electoral Acts, one cannot spend public money on any campaign, even in a general election context. The proposal's obvious merit is that it would bring to the fore the political parties to a much greater extent and would diminish secondary voices in a debate. However, it is not a way to fund a campaign.

My questions pertain to the legitimacy of the actors, the role those who crafted the proposal should have in explaining it and whether they should be given a platform to so do. They also concern the allied issue of elected representatives, who are surely there to advise the people who elect them and to do their work. In other words, the electors will not read a 400-page document because their public representative will explain it to them and they will trust his or her judgment in that regard. Is this not a legitimate role from a political science perspective?

My second point pertains to the issue of lack of knowledge. I knocked on doors during the last campaign and met hundreds, and probably thousands, of people who stated they did not understand the treaty. However, the unstated argument was they really did not wish to understand the treaty because when I asked whether I could explain it to them, the answer was "No, not really". If one asked whether people sought information on any particular issue that engaged them, the reply in general terms was "No", because the people were grounded in the fact they did not know and consequently were safe to make a decision. However, were a voter to acknowledge an openness to knowledge, he or she would have a job of work to do. This is a legitimate issue that I confronted personally, as did many colleagues. One cannot force-feed knowledge to people. The simple issue is that many people think the phrase, "If you don't know, vote "No", constitutes a nice and convenient process with which to make a decision.

My final point on the lack of knowledge issue is that for many people, it is unreasonable to expect them to have a degree of knowledge on a complicated subject. This poses a dilemma for the separation of power argument in that if the people are to make the decision, they are in the legislative role. At the same time, this meant everyone was expected to have the time in their daily lives to both absorb a complicated treaty and to be able to discern voices that put highly different constructions on the wording. Consequently, people were obliged both to understand it and to make judgment choices between conflicting interpretations of it. How can we overcome these matters?

Professor Richard Sinnott

I thank Deputy Howlin for this question, which centres on the role of the public representative. It seems to me to be an unassailable view that the people have a right to hear from their public representatives. In other words, they have a right to leadership in the context of a referendum campaign. Hopefully, if such leadership is effective, it would tackle the problem he has identified of a certain resistance to knowledge. Ways must be found to reduce or to get around such resistance and presumably this pertains to agreeing on a simplified account, whereby rather than people needing to know all the detail of the treaty, it will be a really simplified summary of the main issues. It would be better were this to come from the Government and from political parties, rather than from a referendum commission, certainly given the manner in which the Referendum Commission has tended to interpret and act on its role.

As an aside, I understand that in one of the relevant judgments, Mr. Justice Barrington made some observations in which he spoke specifically of the right of the voters to hear from their public representatives. There are all sorts of other reasons to put out in front public representatives, not least of which is that our recent research showed pretty conclusively that 40% of the electorate are candidate-oriented, rather than party-oriented, voters. Consequently, hearing the arguments from one's elected constituency representative, in particular from the elected representative to whom one gave one's first preference vote, is a crucial factor in this process. Funding will be required for this, which is the reason I would test the water to ascertain whether funding can be made available and how it might be worked out, short of a change to the Constitution.

Senator Dan Boyle

While I am unsure what is the collective noun for professors, I am sure it exists.

Deputy Brendan Howlin

It probably is a wisdom of professors.

Senator Dan Boyle

I have a series of questions and will refer to the contributions in the order in which they have been made. There was a change in the Referendum Commission's terms of reference between the Nice I and Nice II referendum campaigns and these terms of reference were maintained for Lisbon. It could be argued both that the change of the terms of reference was to allow particular arguments to be heard in a particular way for the Nice II referendum and that it was successful in so doing. However, it also could be argued that maintaining those tight terms of reference for the subsequent referendum allowed for misrepresentation and for unchallenged statements to be made more freely. Ironically, I believe that had the terms of reference that existed for the Nice I referendum been in place, they would have been more satisfactory for the Lisbon treaty referendum. Professor Marsh should express his views in this regard.

While Professor Gallagher certainly highlighted the inherent difficulties, he also highlighted the possibilities of how funding might be channelled through political parties. In addition, he mentioned the difficulties of political parties that might have split opinions on referendum subjects. I certainly would be interested to learn what the mechanism in this regard might be.

A further difficulty arises in that not only does a party's membership hold different opinions when making decisions on a referendum topic, different political parties have different ways of deciding whether they have a position on that topic. Some have no mechanism in this regard. Moreover, the manner in which a party's supporters or members subsequently vote in a referendum may differ. It might be very difficult to determine such a mechanism. Another issue that might arise from a referendum process is the difference between a registered political party, which takes part in general, local and European elections, and a political movement or nascent political party that emerges from the referendum process. It is even possible this position has arisen at present.

Finally, I refer to Professor Sinnott's proposal on the use of Article 27. Deputy Howlin has pointed out that no public money is available for the general election process in any case. However, while he also stated the referendum process does not have public money available to it, I do not believe he meant to be so bald. The McKenna judgment states that whatever public money is spent on one side of an argument must be made available in an equal amount to the other side of an argument. I note Professor Sinnott stated he is not a constitutional expert. In his opinion, could Article 27 be used for a different type of process that, by nature, still is a referendum?

Deputy Brendan Howlin

Such as a general election?

Senator Dan Boyle

Other than a general election. It could be the ratification of the treaty, which, in other national parliaments, ordinarily is effected through a Bill process. This is what could be put to the people by way of referendum, rather than any particular wording to go into the Constitution. In other words, the Bill itself would be a process, taken by referendum, upon which the people would decide. Does Professor Sinnott believe Article 27 would allow for it? In the Oireachtas, a referendum Bill allows for a referendum. Elsewhere, it would be a ratification of treaty Bill, an alternative mechanism.

Chairman

Would someone like to respond?

Professor Michael Marsh

I will start with Nice I and Nice II. The Referendum Commission's advertisements during Nice I were appalling, involving someone prancing around on screen telling people that he or she would vote "Yes" while someone else, who turned out to be a journalist, explained why he or she would vote "No". The people need to know who is making the arguments, not see actors on the television. It was appalling. If we believe it to have been a good idea, let us do away with election campaigns, turn them over to a neutral body and let it give us advice on for whom we should vote. Why do we need parties if we have a commission that can give us the truth? Parties should be out there arguing to be elected.

While I disagree, the Senator may be right about events turning out differently had the regime been in place for the last referendum. Had the Nice I regime been in place for Nice II, the latter might have been lost as well. The campaigns were different because people took it upon themselves to sell it instead of leaving it to the commission. This is one of the elements that went wrong last time. People did not get out and sell it early enough. We know of the Government's difficulties. It was distracted by matters of greater concern to it than winning a boring old referendum that could have been held whenever time was found. This gave the "No" campaign a better start, from which point on the "Yes" campaign was playing catch-up and trying to refute claims that had been made for some time. It is not a question of the rules governing the referendum commission. Rather, it was the poor performance of the "Yes" campaign.

Professor Richard Sinnott

One way to resolve divisions within parties would be to make per capita funding available to individual Members of Parliament. The funding would be divided within the party in proportion to the size of its competing groups. The focus on funding individual Members would resolve the issue.

Deputy Brendan Howlin

I would love that.

Professor Richard Sinnott

I could see strategic difficulties. Funding an emerging political movement is another difficult matter and one around which I skirted in my argument, but there are ways to do it. The Chairman mentioned a comparative study. The Danish case is particularly interesting, as Denmark has specific ways of funding competing party based and non-party based groups. It also has a political movement that has become a quasi-political party.

On funding general election campaigns, referred to by both Deputy Howlin and Senator Boyle, candidates could be reimbursed in proportion to the number of votes they receive. Public funding is available throughout an election campaign, which justifies the parallel I drew between a general election and an Article 27 referendum. Article 27 would be an interesting way to ratify a treaty, but the complication lies in the different way in which Article 46 or 47 evaluates the outcome of a vote. It is a straightforward majority in one case and a blocking majority in the other case. I do not have a copy of the Constitution in front of me, but there is a difference in the ways it assesses the outcome of an election.

Senator Eugene Regan

We are speaking as if the referendum process is broken, but it has worked with these restrictions, particularly in the case of Nice II, which saw a reversal in results. Professor Marsh stated that neutrality rather than the enlargement issue was important in the first Nice debate, but that the second Nice debate saw neutrality's importance lessened and the enlargement issue playing a greater role in persuading people to give accession countries the same opportunities as Ireland. It was more than a question of knowledge. There were changes, such as the Seville Declaration on neutrality and the inclusion of the safeguard in the Constitution.

People have learned from the experience and many who did not bother to become informed were aware of the prospect of a Lisbon II because the experience of the Nice treaty was that there was a possibility for change. Given recent commentary by the Government and other sources, there may be changes in respect of the Commission, and so on. It is not just a question of knowledge. Maybe biding time and waiting for another go is intelligent of the electorate. While we know that nothing in the treaty suggested conscription, there are other aspects in which changes can be made, such as in the Commission. The experience of Nice I and Nice II has influenced the Lisbon experience. Will our guests comment in this regard?

Chairman

Perhaps they can answer, after which the Senator can speak again.

Professor Michael Marsh

I can respond on those points and my colleagues may add something. The Eurobarometer flash poll conducted on the day after the referendum found that approximately 20%-30% of people believed another referendum would be held. The Senator's assertion is true. While there were changes, those most vociferous about the threats to neutrality in Nice I were equally vociferous during the debate on Nice II. However, the electorate did not believe them.

Senator Eugene Regan

Professor Marsh is right, as the referendum process is not necessarily the only problem. There is also the issue of the campaign. The Government and all political parties failed to energise their supporters during the Lisbon debate. It seems that we must repeat exams. The political parties have learned a lesson. Sectoral interests vested in ensuring Ireland remains at the heart of Europe might be more active the next time.

The committee is focusing on how the media dealt with campaign information. The media seemed to suspend critical faculties concerning commentaries by the "No" side. On panels of speakers, the "No" side's contradictory statements went unchallenged. Do our guests view this as a relevant element? A bold assertion on conscription or abortion was made, but the basic facts on the constitution were available. One would expect the person conducting the interview or panel discussion would have that basic knowledge and put the facts to the panel rather than hear the "Yes" or "No" side asserting the established facts on what was in the treaty.

Chairman

Does Professor Gallagher have comments on that or other matters?

Professor Michael Gallagher

Not specifically on the role of the media.

I refer to the questions we have addressed. Regarding funding divided parties, my instinct is that external bodies should not get into internal party divisions. There might be differences of opinion and there is a question of at what level within the party we look for the division. Regarding the Lisbon treaty, Fine Gael and the Labour Party parliamentary parties were totally behind the treaty and yet their voters split 50:50 or, in the case of the Labour Party, were on balance against the treaty. The membership as a whole would have been fairly evenly divided on that. Parties like to present a united front to the outside world and I cannot see different wings of a party coming forward seeking separate funding.

The question of internal division also arises with interest groups, not so much in groups formed to fight the campaign but in the social partners. ICTU attaches great importance to the treaty but different trade unions took different stances and individual unions were internally divided. It is very complex if we consider funding different wings internally.

On the question of whether the courts are hostile to the role of parties and the Government in referendum campaigns, I disagree with Professor Sinnott. The courts are not quite as hostile as we assume. In the Coughlan v. RTE judgment, the court divided 4:1 in favour of Coughlan and the judge in the minority, Mr. Justice Barrington, was supportive of the role of parties. He described as "unwise" the idea that political leaders should stand aside in favour of committed amateurs and said that it was a bad idea. If we consider the four judges who took the side of Coughlan, none of them was hostile to the role of parties. Chief Justice Hamilton stated:

Political parties undoubtedly have and are entitled to play an important role in the conduct of a referendum. There are many ways in which they can fulfil that role without recourse to a political party broadcast.

Likewise, Mr. Justice Keane, who was one of the majority judges, included a paragraph on how important parties were in referendum campaigns. He observed that those who wrote the Constitution in 1937 knew full well that no referendum proposal would go to the people unless it had got through the Oireachtas, which is dominated by parties, and that parties were important in referendum campaigns. Likewise, no judge said that governments should keep out of referendum campaigns, but that they should not use public money to fund one side of the campaign and I can well understand that this is contentious. There is agreement among us that parties should be encouraged and facilitated to be more forward in campaigning and should be given funding to do that. If I can cast a negative and critical note, the way parties campaigned for the Lisbon treaty referendum weakens the case for that in the view of many observers. Much of the parties' campaigns was about promoting their local election candidates or Deputies rather than persuading people on the Lisbon treaty itself. If the question arose about funding parties to campaign at a future referendum, I can foresee a media and public backlash at the possibility of the taxpayer giving parties money for self-promotion rather than to inform the electorate. If parties were given funding for referendum campaigns there would be public pressure to have strings attached to ensure it would be used for the purpose intended.

Chairman

Can we return to the question posed by Senator Regan about the media and competently arguing the counterpoint in interviews?

Professor Richard Sinnott

I would agree with the proposition underlying the question, which is related to the judgment. The judgment creates a norm of 50:50 representation. Not only are there equal numbers sitting on a panel but there is someone in the background with a stopwatch making sure they get equal time to voice their views in the discussion. The effect on public understanding and public debate is amplified by the fact that those norms apply most clearly to the media to which the people turn most readily.

The last page of the PowerPoint presentation refers to how useful the public found the various organs of the media and various referendum processes in making up their minds on how to vote. As one would expect, there is predominance of electronic and print media, plus a process of discussion with family, friends and colleagues. There is a debate that goes on that is not so visible. The problem is that what people are presented with via the media, which they turn to most readily, has a kind of neutrality and 50:50 allocation of time and emphasis. This has become the main concern of the broadcasters whereas, although one may be at risk of glorifying the past, in the past the interviewer or moderator of the debate would have pressed participants more closely, particularly in cases where what was being put forward was an incorrect interpretation of what was in the treaty.

Senator Eugene Regan

What is interesting from the presentations we had previously is that the Broadcasting Commission of Ireland does not consider there is a 50:50 rule arising from the judgment but rather that there must be balanced coverage. Professor Sinnott is right in saying the media are acting in a more restrictive way in not probing the answers they get.

Regarding posters and the role of political representatives playing a role in information, if the political representatives disassociate themselves from the message, it becomes completely neutral. The argument would then be that political representatives do not want to put the personal stamp on the campaign. There is a contradiction there. Perhaps in some cases it was overdone and it was all about the public representative and not the information. If one talks about the parties playing a role and showing leadership, one must be associated with the campaign and one must put one's name on the poster.

Chairman

Regarding 50:50 allocation, Professor Sinnott referred to a package of uncontested or partisan party political broadcasts. In contested broadcasts, where there are a number of "Yes" people with an argument and "No" people with what some may say are vacuous arguments, what is the difference between contested and uncontested broadcasts? Should there be a greater imbalance so that the full content of the argument can be put forward?

Professor Richard Sinnott

My understanding is that the uncontested broadcasts to which Mr. Justice Carney was referring were traditional party political broadcasts modelled on election party political broadcasts, in which, prior to these judgments, parties were allocated time in a referendum context in proportion to the strength of the party in the Dáil. The contested ones are typical television programmes such as "Prime Time" where the opposite situation is now most acute whereby there is a strict endeavour to maintain a 50:50 balance. This affects the number of people on the panel from each side and I think I am right in stating that often there were two representatives from each side. The viewer takes away with him or her the idea that there are equal views on both sides and it could go either way. Voters are entitled to go either way, but on the basis of rigorous argument and debate.

Deputy Jim O’Keeffe

May I follow up on this issue?

Chairman

After Deputy Michael Kennedy speaks.

Deputy Michael Kennedy

I thank the Chair. I also intended to raise the issue of media and debates. The points articulated are views I share. Everybody agrees that the documentation for all referendums is legalistic and complicated for politicians, much less the public. How does Professor Sinnott see the role of the Referendum Commission with regard to imparting information in simplistic language which people can understand? Does he have a view on how this can be brought about?

With regard to Professor Sinnott's comments that the role of the Referendum Commission is to impart knowledge to the people in the context of the large amount of misinformation communicated by the "No" side, particularly with regard to abortion, taxation and conscription, how does he see this being rectified? As learned gentlemen, do the witnesses have a view as to how the Government or future Governments could change the role and status of the Referendum Commission? When the Referendum Commission held a press conference to clarify some aspects, people went away with the same level of confusion because nobody stated conscription was not part of the referendum and no one mentioned taxation or abortion. We need guidance as to which parties and bodies can state this is wrong and must be changed. Any change should be for the benefit of all parties and not only those advocating a "Yes" vote. The "No" side and those who are doubtful are entitled to know the facts.

With regard to Professor Sinnott's comments on Article 27, does he envisage a situation where a super-majority in the Dáil could decide it would provide funding for campaigns or allow parties to do so and this would become the subject of a Supreme Court case? Would Article 27 have to be changed by referendum? I am sure this would lead to more people stating that politicians are changing it for their own purposes.

Professor Richard Sinnott

I think I may be implicated in the final part of the question so perhaps someone else might like to comment on the earlier part.

Professor Michael Marsh

There are two responses to the earlier part, one of which is to question why we need a Referendum Commission to put out any information. Why not let political parties, interest groups and others put out the information and provide a context in which they can do so subject to debate?

Deputy Brendan Howlin

The answer is money. I established the original on an ad hoc basis because we needed a vehicle which would be constitutional to distribute the money to be spent. One could not state that each party would get a dollop and anybody on the other side of the argument would also get a dollop. How does one do so? How would the way we fund post facto Dáil elections be applicable to a referendum? Would somebody state he or she spent X amount and X amount of the people voted in accordance with this so he or she was entitled to a refund? It would be complicated to arrange this. The practicalities of funding fairness is the issue.

Chairman

Does Deputy Howlin feel he got value for the money spent after it was established?

Deputy Brendan Howlin

No. It has never worked and I was first to be guilty. When it comes to impartiality we all think of a High Court judge but this was the wrong person to go to because the mindset is different from that of a communications person who is needed to explain it. The linked question is whether the role of journalism is not only to provide a platform for two sides to debate an argument, but also to itself provide incisive analysis and present it, warts and all, to the people.

Professor Michael Marsh

The answer to the question about the money is to save it by not having a Referendum Commission and not giving it to anybody else. Perhaps this would be good and the money could be used for something else. This partly comes down to how——

Deputy Brendan Howlin

Would spending be restricted or could any external organisation fight its own agenda and subvert the voted will of the Oireachtas?

Professor Michael Marsh

One could restrict spending. It is what is done in elections, and most people do not spend anywhere near the amount they are allowed to spend. If we restrict spending we still need to allow a high enough amount to ensure an effective campaign can be mounted. Many countries seem to inform their public better than we do and provide money to organisations in various ways to fund the campaign. This is the case with regard to Scandinavians in particular. Scandinavians always seem to know more than the rest of us. Perhaps they are more sensible. They have a means of doing so. I do not know whether it is constitutional. It is not my area of expertise. However, it is a normal pattern in many democracies just like ours and it seems to lead to better results than ours.

Chairman

I ask Professor Sinnott to respond to Deputy Kennedy.

Professor Richard Sinnott

I will but prior to doing so I draw the committee's attention to the public's assessment of adverts and leaflets by the Referendum Commission with regard to the two referendums on the Nice treaty and the referendum on the Lisbon treaty. The performance was significantly more favourably assessed in the second referendum on the Nice treaty than the other two referendums and this is possibly because there was a more general feel-good factor about the referendum process itself in this case.

For good or ill, what is more important than having a neutral body attempting to verify or invalidate interpretations of the treaty is that we are reliant on robust political debate to do so. However, this requires resources in political parties and the Government ought to be allowed to rebut what it sees as misinterpretations of a treaty. This brings us back to the regulation of referendums by the courts and the difficulties involved in this regard.

With regard to Deputy Kennedy's question on activating Article 27, I do not think it would require a super-majority. I have concentrated mainly on the question of party funding because I recognise there are more complex issues with regard to funding of groups but I will return to this particular point. I presume the Government could bring forward a Bill to introduce funding which would, presumably, be immediately referred by the President to the Supreme Court or High Court and would be dealt with in this way. My interpretation of Article 27 is that it is a way around the issue of having a referendum about referendums, which is the only other alternative.

Deputy Michael Kennedy

The only reason I mentioned a super majority is that in the referendum, 95% of the political parties campaigned for a "Yes" vote. In terms of referring the decision to the Supreme Court, if that court is aware that the representatives of the vast majority of the people are saying that the situation must be altered, then presumably the court might be in favour of the super majority position. Reference has been made to the fact that some judges are anti-Government of the day, for whatever reason.

Professor Richard Sinnott

I see the point the Deputy is making.

Funding groups outside the Oireachtas, that is, apart from the political parties and individual Deputies, becomes more feasible if one considers a referendum campaign as something that lasts for six months rather than six weeks. That notion may appal elected representatives but one needs a longer rather than shorter campaign. A short referendum campaign, either in terms of the period of the declared campaign or in terms of parties not getting moving until late in the day, is much more likely to panic the voters because they do not have the time to ask appropriate questions, look at both sides and so forth.

If one conceives of this as a process requiring a long campaign, there is time within a six-month period, for example, for non-elected groups to make application to a referendum commission, which would effectively be a body that would disperse funding. In the Danish case, as I understand it, there is a continuous process of providing information on the European Community. There are ways around the admittedly difficult process of providing funding to bona fide groups. By bona fide I do not mean voting one way rather than the other, I mean genuine representatives of dissenting views in what is a growing area of dissent within society.

Deputy Jim O’Keeffe

With reference to the evaluation of channels of communication, has any assessment been done on the impact of the attitude taken by the British media, which circulates in Ireland, on the outcome of the Lisbon treaty referendum? As one who for many years has read The Sunday Times, when I saw the campaign run by that newspaper against the Lisbon treaty, I found myself grinding my teeth with frustration at what seemed to be a totally anti-EU and anti-Lisbon approach. I read an article by Ms Sarah Carey last week which suggested that, as an employee of The Sunday Times, she was precluded from writing anything favourable about the treaty.

The British approach to the EU, generally, is either anti-European or at least eurosceptic. I presume that as well as The Sunday Times, which is the only British newspaper I read, many of the other British publications adopted the same anti-EU approach. Has any evaluation of that been done?

Professor Michael Marsh

Not that I know of but evaluations of media impact are not trivial undertakings. It is very easy to come up with some broad association but to deliver real evidence of some kind of causal impact — for example, I read X in The Sunday Times and did Y — is very difficult and calls for the sorts of studies that are not funded as often as they should be. Media evaluation is not a trivial matter. It is not a question of simply commissioning MRBI or IMS to ask people if reading The Sunday Times made any difference to their vote. That would be a total waste of time.

An evaluation could be done, although it would be difficult. In general, most fairly serious studies of media impact find minimal effects but that is partly because there are more complicated things going on. I doubt if many people changed their minds because of what they read in The Sunday Times and if they did, it would fly in the face of most of the knowledge we had.

Deputy Brendan Howlin

The director general of FÁS might have a different view of the causal impact of Sunday newspapers.

Chairman

I think we will pass on that issue. I thank the delegates for their attendance. Their contributions have been very helpful to the committee.

The joint committee adjourned at 12.46 p.m. until 11 a.m. on Tuesday, 2 December 2008.