I thank the Chairman and committee for inviting me to appear to comment on the functioning of the constitutional referendum process. I am a political scientist, so I will not reflect or dwell too much on the legal nature of this process, although I need to make some comments on it. I will focus my comments on the information provided to the electorate and on the political parties, and on the issue of airtime and possible options for future referendums. There is considerable research by academics on referendums in Ireland compared to Europe and the United States; they are not a new device and date from two centuries ago. They have been used in various ways by governments, sometimes subversively and sometimes positively in favour of democracy, so we must be aware there is a background to this already.
The key issue is the importance of understanding the conditions under which referendums are run. Communication, the provision of information and the role of political parties are very important. It is important to understand how that governs the referendum process and can influence the outcome, levels of public interest, voter intentions and turnout. There is a lot within our control. In understanding the outcomes of referendums, it is important to consider the overall levels of public support for European integration and the EU. In my own research on European integration I and my colleagues John Coakley of UCD and Michael Holmes of Liverpool Hope University have highlighted over time the persistence of residual opposition to European integration in Ireland. I am not convinced that opposition has grown dramatically; it has been consistent across the seven referendums we looked at.
In the cases of Nice I and the Lisbon treaty referendums this minority opposition was joined by a larger proportion of the voting public, who voted against these treaties despite many of those same voters being highly supportive of Ireland's EU membership. One dilemma is that EU referendums may be different from other types of referendums in Ireland, given that they involve asking voters to support detailed EU treaty changes which may be less easy to explain than some of the other types of issues before referendums. That is something we could discuss.
It needs to be kept in mind that there is an overall level of public support for European integration since the State joined the EEC. Eurobarometer data indicate that support has grown over time and even amongst "No" voters there is still quite strong support for EU membership. That is a dilemma because we need to probe further into what went on in the last referendum and in the referendum process, particularly on the general knowledge and interest of the public in the European Union, which seems to be very low and may reflect limited interest in the day-to-day happenings of Europe.
One issue is how the public are informed of issues at stake in the referendum. In the early days of EEC membership Irish Governments generally adopted a firmly pro-European position and were in a position to use resources to advocate a "Yes" vote. There was a fairly strong pro-European coalition of business, trade unions and other European organisations which endorsed treaty changes. That changed as a result of the McKenna legal challenge, and the response to that and whether or not we should have changes is something we need to ask ourselves. It changed the rules of the game and lead to the passage of the Referendum Act 1998.
The new rules of the game impacted in two ways. The first was that the expenditure of public monies by the Government of the day in advocating a "Yes" vote was stopped, given that the alternative choice was to provide equal funding to opposing groups. I will not repeat the details of that but will return with recommendations on it later.
The second was that on the allocation of airtime to the political parties, the Supreme Court in Coughlan v. The Broadcasting Complaints Commission, building on the McKenna judgement, ruled that it was unconstitutional to give one party more airtime than another. We are very aware of the outcome of that process.
The Referendum Act led to the establishment of an ad hoc referendum commission and changed the nature of the game. When we look at the early workings of the referendum commission they proved somewhat problematic, and in response to the report of the All-Party Oireachtas Committee on the Constitution the Act was amended in 2001. This removed from the referendum commission the requirement to put the case for and against EU treaty reforms which disenfranchised somewhat their role. The role it played previously was criticised as somewhat wooden and was described as not being very effective in putting the argument in a realistic sense to the public.
Critics of the McKenna judgment suggest this approach tied the hands of successive Governments, limiting what they could do in explaining the issues to the public who were being asked to vote on them. Nevertheless, it is worth noting that the Government is still responsible for publishing information on any proposed treaty amendments and has significant opportunities to publicise EU treaty changes. In particular, the Department of Foreign Affairs provides information on the proposed treaty amendments through the publication of White Papers and explanatory memorandums. In the case of the Lisbon treaty, the Department published and launched its White Paper on the Lisbon Treaty in April 2008. Opponents of EU treaty reform saw the McKenna judgment as providing a more level playing field and offering greater opportunities to debate the issues in the media.
The concern remains about the provision of public information and knowledge about the EU issues. Ultimately when one looks at what happened after the Nice I referendum the establishment of a National Forum on Europe provided a means and possibility to debate and consider issues in Europe and future reforms. The forum has provided a critical focal point for debate in recent years, both through its plenary sessions in Dublin, its regional meetings and its work with young people. The original objective of the forum was to facilitate a broad discussion of issues relevant to Ireland's membership of an enlarging Union, and to consider the range of topics arising in the context of the debate on the future of Europe. The forum has done an incredible amount of work in this area and yet at the same time we are aware there is a gap or a deficit in public information as reported by the electorate in understanding issues such as the Lisbon treaty.
The outcome of the first vote on the Nice treaty, which produced a "No" vote by 53.9% to 46.1% on a turnout of 34.8%, highlighted the publics' poor understanding of the issues. Some two thirds of the people surveyed were either only vaguely aware of the issues or did not know what the treaty was about. This represented both a failure of communication and of the campaign. In contrast to the first vote on the Nice treaty, the second referendum in October 2002 led to an increased turnout and certainly a greater awareness among the public of the issues arising in the treaty. They appeared to understand the issues at stake and were more willing to vote on them. This was prompted by a more successful campaign through the mass media and interpersonal discussions, aided by the work of the referendum commission and the Government's White Paper and summary. However, when one probes slightly deeper, as my colleague Richard Sinnott has done in UCD in looking at survey findings, the level of knowledge is still fairly thin.
The challenge for the referendum commission is that its remit has been limited by its terms of reference. In the most recent referendum on the Lisbon treaty the commission was not formally established until 6 March under the chairmanship of Mr. Justice O'Neill. In its work the commission did help to raise public awareness that a referendum was scheduled to take place on 12 June 2008. At best, this information, as it was portrayed was largely uninteresting and hardly exciting to the public imagination.
In analysing the outcome of the 2008 referendum, research suggests that one of the chief reasons given by those voting "No" was a lack of understanding of the Lisbon treaty and the issues, despite all the information and despite the party campaigns. In essence, many of those who voted "No" were not opposed to the European Union and were supportive of deeper integration. On average, 80% of "No" voters were supportive of EU membership, with 89% of all voters favouring the EU. The research suggests that voters were not convinced that they should vote in favour of the Lisbon treaty.
This raises the question of whether the quality of the information available about the Lisbon treaty was of a sufficient standard to raise intentional understandings of the treaty and to lead to voting. In general, there was not a lack of information on the Lisbon treaty, which was available from a variety of sources, although it failed to convince voters that they should vote for the treaty. In order to more fully understand why this was the case, we need to consider the role of the political parties.
At a formal level political parties do not have a constitutional role in the referendum process, although they provide one of the principal means of interest aggregation and articulation. They notably do not receive any public funding to conduct their campaigns reflecting an unwillingness to commit public funding to support "Yes" and "No" sides in any referendum campaign. It raises the issue of whether public funding should be revisited. This places the burden on all parties and other interest groups and individuals to fund their own campaigns. Clearly, it raises issues about those with the greatest wealth being in the strongest position to put their case. In practice, this has meant that the larger parties and groups have usually significantly outspent the smaller ones.
The role of parties in the process of referendums serve five functions. These are to inform and educate their own members about the nature of the proposed amendments, including through party meetings and briefing papers; to ensure that members understand the party positions on the major issues likely to arise in the referendum and, therefore, being able to explain them to a broader electorate; to utilise party workers to canvass the electorate and get out the party vote on the day of the referendum still remains a core function; to lead the debate and address the main issues in the media, including on TV, radio and in print — this has fallen principally to party leaders and those with the most knowledge and understanding of treaty reforms; and to use the party apparatus to rally broader support for or against referendums.
In discussing the roles that the parties have played, we need to look at the events surrounding each referendum to understand the actual role that each party played and how effective they were in rallying their own supporters and getting out the vote. There were questions during the last campaign on the referendum as to whether they were sufficiently able to involve the citizens and their own members to vote.
In addition to the work of the parties we need to be aware that single interest groups and individuals have played a prominent role in successive referendum campaigns. I will not go into the details of these as they are set out in my paper. To give the committee a sense of what is involved here, this has become incredibly more important in recent years, particularly with more slick marketing campaigns, slogans and posters as well as the use of the worldwide web and the Internet to promote messages for and against such referendums.
In the run-up to the referendum on the Lisbon treaty, the political parties appeared quite slow to formally establish their campaigns, which did not officially launch until early May. In practice many of the political parties and their leaders and key campaigners were already involved on the campaign trail from early in the year, participating in the National Forum on Europe, the Institute of European Affairs and in other fora in advance of those official launches. In most instances, the parties were also engaged in rallying and informing their own members through regional and local meetings prior to the official launch of their campaigns. The initial reluctance of the Government to name a date — 12 June — which it did on 25 April did impact on the process because it meant the campaigns were slow off the mark. Similarly, the public discussion of the allegations concerning the finances of the then Taoiseach, as well as the worsening economic position distracted from the referendum campaign. Therefore, there were some specific events in this instance that we need to bear in mind.
The main pro-treaty political parties seemed to encounter difficulties in communicating what the Lisbon treaty would mean for Ireland. The focus on trying to explain that the treaty would make the European Union more democratic and the EU institutions more effective and efficient in the context of an enlarged Europe did not seem to hit home. This message did not resonate either with the rank and file of the main political parties or with the public, who did not feel sufficiently confident to vote in favour of the treaty. Certainly, in some of the party meetings I attended there was little enthusiasm for the Lisbon treaty and limited knowledge about its contents.
On a number of occasions prominent political figures faltered and stumbled when it came to explaining the treaty and what it meant for Ireland. In many instances these were key individuals whom one might have expected to have a better knowledge of the treaty. Alternatively those opposed to the treaty, while far from providing a unified front, found it rather easy to highlight their concerns such as the loss of Ireland's Commissioner, neutrality, social issues, the democratic deficit and tax harmonisation.
The air time issue is significant in that these groups were granted significant access and key individuals, because of the equal right to access, got more air time than possibly some of the major parties, as is evident from the spread of time across them, which the committees looked at last week. In contrast, the parties supporting the Lisbon treaty were unable to make a clear case in favour of the treaty and were often left asking the public to vote in favour of it because it was in Ireland's interest. Even a last joint appeal by the leaders of Fianna Fáil, Fine Gael and Labour on Monday, 9 June, highlighted the inability of the parties to convince the public.
When one analyses how people voted, the surveys tell us, for example, that Fine Gael voters were split almost evenly for and against the treaty. Labour voters were 55% opposed to it. Fianna Fáil voters were moderately supportive at 60%, the Progressive Democrats were in favour at 69%, the Green Party was split and Sinn Féin strongly opposed, by 95%. It was clear that many in the main political parties did not feel sufficiently confident to vote for treaty, preferring instead to vote against it, perhaps feeling that a better deal might be on offer at a later date.
I wish to turn to the last two topics, one of which is the rules governing the broadcast air time. In analysing the outcomes of past referendums the role of the mass media has been highlighted in the research as particularly significant in raising awareness and understanding of the issues surrounding EU treaty reform. I do not need to read into the record all the details from my paper but in examining the Lisbon treaty referendum, the area that was perhaps most contentious was the issue of ensuring fair and balanced coverage of opposing views. As some broadcasters have suggested, it was difficult to achieve that given the large number of political parties and groups in favour of the treaty and the smaller number opposed to it. This meant that groups such as Libertas and Sinn Féin, and particular individuals, were sometimes considered to have had more air time, given the paucity of other "No" groups. At an organisational level, that gave the media major practical difficulties, given that it was hard to strike a balance between the opposing viewpoints.
In general, most media organisations would claim that they did a reasonable job in balancing the views and ensuring that both opponents and supporters managed to get air time. However, there were claims by members of the major parties that they had to spend a disproportionate amount of time refuting claims by the "No" camp, which limited their ability to make their own case in favour of the Lisbon treaty.
Turning to the alternatives to amending the Constitution, in considering the role of referendums in the democratic political landscape, they have generally provided a means by which voters have been most directly involved in the political decision-making process on substantive issues. The use of referendums has grown since the Second World War in countries such as the United States, France and Switzerland. The uses to which referendums are put have tended to vary, however, according to the nature of the political system as well the conditions under which they have taken place. In some cases they have been used to legitimise legislation, whereas in others they provide a genuine means of direct participation on a variety of issues. In some cases they are obligatory whereas in others they are advisory, although few governments would be willing to disregard an outcome.
In Ireland to date we have had approximately 29 referendums, with 21 having passed, and they are considered by many as having played an important role in the political life of the State. I will not highlight all of them but we are very aware of the issues on which we have had votes. They include divorce, local elections, the death penalty, abortion and the Good Friday Agreement, to name a few. In the case of the EU treaty amendments, however, referendums have tended to provide rallying points around which opponents and supporters of European integration had an opportunity to put their positions on Europe. Sometimes they provided less a case of examining the treaties than a chance to replay old battles.
Under the provisions of the Constitution, a proposal to amend the Constitution must be passed by the two Houses of the Oireachtas and then put to a referendum. In the past, the nature of the issue under debate in the referendum has largely determined the level of public interest, with those touching on moral issues being hotly contested and likely to attract attention and turnout.
Turning to the referendums on EU treaty reforms, the State has generally taken the view that it has had to hold a referendum reflecting concerns that the adoption of any new treaty amendments would affect the Constitution. That is something we can challenge, particularly in terms of the level and requirements for certain aspects of EU treaty reform. My colleague from UCD has highlighted many of these points, and we can return to them in the debate, but we need to revisit past decisions to reconsider the purpose of referendums in terms of promoting a debate around the issues.
Ireland has thus resorted to holding referendums on amendments to EU treaties. It is one of the few states to have done so. In the Nice treaty it was the only state that used a referendum. Does Ireland need to do so? There are differences of opinion on this matter, depending on how one reads the Crotty judgment and the likely impact of a new EU treaty on the Irish Constitution. In the first instance, the State could decide to use a statutory instrument to ratify an EU treaty, assuming that the new EU treaty did not substantially extend the scope and objectives of the EU. The problem with this approach is that it would be most likely challenged and might lead to an abrogation of any such instrument. The outcome would be a further constitutional crisis whereby the Irish State's endorsement of an EU treaty would be found to be unconstitutional. It is also difficult to imagine a situation in which any government could seek to ratify an EU treaty without recourse to a referendum as it would appear to avoid seeking public endorsement and could be politically disastrous. It would also fundamentally challenge the general use of referendums in Ireland raising questions as to the reason the Irish Constitution was being overridden by a political elite unhappy with the outcome of a particular referendum.
In terms of recommendations for the committee, we should review the functioning of bodies like the Referendum Commission in providing public information. We need to review the use of public funding for campaigns, particularly in terms of parties, other interest groups and private individuals establishing thresholds here.
To what degree we should use referendums for EU treaty reform is a subject of necessary debate and in some instances referendums may not necessarily be the best option.
