JOINT COMMITTEE ON THE CONSTITUTION díospóireacht -
Tuesday, 2 Dec 2008

Constitutional Referendum Process: Discussion.

Vice Chairman (Deputy Jim O’Keeffe)

I thank the witnesses for coming here today. This committee is currently undertaking a review of the constitutional referendum procedure, as prescribed in Articles 46 and 47 of the Constitution. This is the fourth in a series of meetings that the committee is holding with different organisations and individuals, in order to hear their views on the constitutional referendum process. To further the committee's work in this area, we will also look at the rules applicable in other countries, especially in other member states of the European Union. In the first phase of its review 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 to the Oireachtas.

I welcome Professor Colum Kenny of the Dublin City University school of communications and our old friend and colleague, Dr. Maurice Hayes, who is the chairman of the National Forum on Europe. Dr. Hayes is accompanied by Mr. Charles Sheehan of the National Forum on Europe; Ms Grace O'Regan, deputy director of the forum; and Ms Caroline Erskine, the forum's press officer. I thank them for their attendance.

Before we commence, I should explain the issues of parliamentary privilege to those who are not aware of them. Members of the committee have absolute privilege, which is one of the few perks associated with being a Member of the Houses. The same privilege does not apply to witnesses appearing before the committee. Members are reminded of the parliamentary practice to the effect that they should not comment on, criticise or makes charges against any person outside the Houses or an official, either by name or in such a way as to make him or her identifiable. I understand Professor Kenny is under some time pressure. I invite him and Dr. Hayes to bring us through their opening statements briefly. Perhaps we will then have an exchange of views.

Professor Colum Kenny

I was asked to provide an opening statement and have done so. I was not sure exactly what the joint committee wanted me to address. I have tried to address some of the issues raised at earlier meetings of the committee.

It seems there is no pressing need to change the current constitutional or legislative provisions which are intended to ensure fairness in the expenditure of public moneys, the dissemination of information and the production of broadcast programming during referendum campaigns. I do not believe the requirement for fairness significantly affected the outcome of the referendum on the Lisbon treaty, for example. If it did, that was appropriate. The Lisbon treaty was defeated because of a failure on the part of those proposing it to communicate its benefits adequately. The Constitution has served the State very well. The electorate has shown that it is well able to understand what is at stake in any referendum. I suggest the perceptiveness and quality judgment exercised by citizens when they go to the polls to elect Deputies to the Dáil on the basis of complex political policy documents cannot be assumed to desert voters when they enter a polling booth to give their opinions on referendum proposals.

I was surprised that the Independent Broadcasters of Ireland appeared to support changes that might permit broadcasters to interpret fairness and balance in more subjective ways. This might lead to a deterioration in broadcasting standards, which is what happened in the United States after the erosion of the fairness doctrine there. It seems from the meeting of the committee on 11 November that the Independent Broadcasters of Ireland are concerned about an "insurgent group", "cranks" and "charismatic leaders" with doubtful representation. The people in question, whom the broadcasters apparently wish to exclude from the airwaves, might tomorrow be members of the parties or groups represented on this committee. While newspapers are not covered by the legislative provisions that apply to broadcasters in respect of fairness, the code of practice of the new Press Council of Ireland requires newspapers and periodicals to strive at all times to achieve fairness and honesty in the procuring and publishing of news and information.

There is a massive amount of academic literature on the effects of communication. It is a very fraught subject. I do not know of any academic who believes it is a simple matter of having a silver bullet — that if the communications media do X, the result will be Y. There are many variables, as the politicians present will be aware. The media and politicians have responsibilities when it comes to explaining and analysing clearly any referendum proposal. I am keen to distinguish between two forms of communication. Professional journalism, as a form of communication, is frequently offset or outweighed by what has been termed the "air we breathe" form of communication. The latter form includes signals sent by key or influential figures in society such as politicians. The public is very good at directly reading such signals which can outweigh any amount of editorialising. If the public does not sense that politicians are heartfelt about a proposal, it will not be easily persuaded to take it seriously, regardless of what public relations men, billboards or specialist writers say.

Symbolic political communication is especially influential. It is the sort of thing Fianna Fáil, in particular, used to be so good at understanding. In this, as in other things, we have lost the run of ourselves, most recently in the Lisbon treaty referendum campaign, flying like Icarus with his wings of wax too close to the sun.

Deputy Brendan Howlin

Who is "we"?

Professor Colum Kenny

The body politic. Politicians have lost the ability to discern and a natural sense of how the public is reading political behaviour. For example, does anyone really think one could turn a blind eye to the possible use of Shannon Airport by US forces for rendition for torture purposes and not expect citizens to become more concerned about the future of Irish neutrality? Voters may, in a way, cynically accept that the Government must be circumspect when it comes to offending US interests and investors but that does not mean they will vote for a treaty that seems, somehow, to facilitate our participation in future military activities of an uncertain nature. There was a failure to explain the benefits in this respect. When the Taoiseach and the Irish EU Commissioner both appeared to indicate that they had not fully read the Lisbon treaty, that sent an unbelievable symbolic signal. I gasped at that stage because I imagined its effect relative to any possible effect the media could have. Few voters would expect any politician to cite the treaty chapter and verse, but voters were immediately freed to reject the document when even two highly paid and highly placed public figures who had access to highly qualified advisers appeared to find it incomprehensible.

Meanwhile, on the doorsteps, voters received too few clear messages from politicians about the benefits of the Lisbon treaty. Important new research was published in the last week by a study group in Amsterdam about the importance of communicating benefits and its influence on voters. The study found the influence of communicating benefits far stronger than the influence of communicating disadvantages. This failure to communicate benefits took place in the continuing context in which national politicians, not only in Ireland but in other member states, constantly blame Brussels for unpopular measures but give too little or no credit for progressive or beneficial measures. The extent to which the legislative agenda of national parliaments is now largely set by EU initiatives and directives is not generally recognised or admitted to by politicians. If and when it is, voters might treat EU proposals with greater interest and respect.

Let me turn to the media because they could do more to explain European measures and relate them to the ordinary lives of citizens. The amount of money which our media, in general, invest in sustained analytical journalism is a matter of some concern. Limitations are due partly to market pressures and partly to profiteering. Either way, society suffers. At the European Communication Research conference held in Barcelona last week, at which I spoke on a different issue, one German speaker singled out Ireland as the country which had lost the highest percentage of editorial and journalism positions in national newspapers between 2002 and 2007. The speaker from Dusseldorf displayed a bar chart showing Ireland ahead of France, Germany, Poland, Portugal and the United Kingdom in the loss of editorial and journalism positions. That is a context in which one cannot expect greatly increased analytical coverage of anything, including the European Union.

Members of the Oireachtas who have facilitated the development of ideological policies within the European audiovisual sphere must share responsibility for media shortcomings. If one opts for neoliberal models of the media market, one facilitates market forces at work and politics is just one more market to be exploited. Older social welfare models of public service broadcasting have suffered under the competition lens of Brussels and during GATT negotiations. The impact is felt most immediately in the radio and television spheres but this then influences all media markets. While some deregulation was, undoubtedly, good, we can now see chickens coming home to roost, as politicians who airily mouthed the light touch mantra get light touch media in spades.

A sub-committee of the Joint Committee on European Affairs has recently made some recommendations for improving communications about the European Union within Ireland, including during referendum campaigns. Reading the sub-committee's report at the weekend, I was not convinced that politicians had yet fully grasped their own failure to engage the public in dialogue about the benefits of EU membership, or the need to decentralise EU communications policy more effectively to nation states.

Public consultations and elaborate fora, about which many citizens are understandably sceptical, are not crucial in effective dialogue, nor is the incentivising of media organisations to send more journalists to Brussels or the creation of a dedicated digital television channel dealing with EU affairs, as the sub-committee proposed. A former Minister for Communications from Estonia also recommended this at the communications conference I attended in Barcelona last week. There seems to be a pan-European agenda to get a digital channel on EU institutions up and running.

From a communications perspective, it is crucial to have the commitment of elected representatives who must earn their considerable incomes and perks by working harder to convince the public of the benefits of the Lisbon treaty. The media should not be blamed for a political failure.

Vice Chairman

I thank Professor Kenny for his clear review. I do not agree with everything he said but thank him for expressing his opinion. I will ask Dr. Hayes to make his presentation. We will then have a free-flowing discussion.

Deputy Brendan Howlin

Having heard the presentation, I do not agree. They fall into different categories.

Vice Chairman

If members would prefer to focus on Professor Kenny's presentation first, I am in their hands.

Deputy Michael Kennedy

I would prefer to have a short discussion with Professor Kenny first.

Vice Chairman

If that is acceptable, I ask Dr. Hayes to hold fire.

Deputy Brendan Howlin

I thank Professor Kenny for his forthright presentation. I sense something has been welling up for a while and I am glad he has had an opportunity make his presentation. I hope I will earn my wages and perks. Having fought seven consecutive general elections, I have some understanding of the mood of the electorate. I sensed it in the run-up to the vote on the Lisbon treaty and was not surprised by the result. I have a feel for what motivates people in my constituency.

I spent a number of days in my constituency but could not persuade many of my solid voters to vote "Yes". The reasons were many and varied. Whatever commitment the political class and I showed, we would not have altered that position in the latter part of the campaign, although I accept entirely Professor Kenny's analysis of the effect of the neoliberal agenda on media quality. I also accept that the outburst of the Taoiseach and the Irish Commissioner that they could not be bothered to read the Lisbon treaty, or if they did read it, that they could not understand it, was scandalous and had a significant negative impact.

I wish to pursue the issue of the media and how they work, as this is Professor Kenny's area of expertise. On reading his submission and opening statement it can be seen that he was critical of the BCI presentation. It is almost as if the political class which is peeved at the outcome now wants to change the agenda. That is not our objective and no one suggested we wanted inequality of citizenship. On the one hand, Professor Kenny wants us all to be equal but, on the other, he sees that we, as a political class, are the ones who have to sell the message. What role does he see for elected parliamentarians in a referendum campaign? We are obliged to craft a constitutional Bill and debate it in the House. Are we neutral thereafter in the making of a decision by the people or do we fight for our position? Do we have any standing as elected representatives or is our opinion no more valid than that of any other citizen? I would like to hear Professor Kenny's perspective.

There have been two presentations before the committee. There are those who see the media as a platform to enable the opposing sides to argue. Can they be an agent for discerning truth, putting arguments to the test and providing, as best as they can, the truth? I engaged with the media during the last referendum, mostly local media. One of the difficulties was that I was constantly responding to the assertions made by the other side in order to debunk untruths. As a result, I was never in a position to sell the message. If somebody said on a local radio station that our children would be conscripted if we voted "Yes", I could not leave it stand and talk instead about the benefits of the Lisbon treaty. That assertion had to be debunked. Therefore, I was constantly in a different position. Is there a role for the media to be inquirers of the truth when somebody makes an assertion? Would it not have been a more useful exercise for an outlet such as the national broadcaster to put all the arguments made by both sides to the test of veracity? We saw an excellent programme on this issue last night; therefore, it has the capacity to do this.

Professor Colum Kenny

I will begin with the last point. There is a role for the media to engage in investigative journalism of the kind the Deputy describes. It does some but should do more. The media organisations, pressed by a highly competitive market that is being run by a neoliberal philosophy that sees competition per se as the ultimate objective, are in a position where they have less and less to spend on investigative journalism, even if they wanted to spend it. Profiteering owners, some of whom believe newspapers may have had their day, are squeezing them for everything they can get out of them. However, there are other obstacles to investigative journalism, not least the failure of the Oireachtas to reform the libel laws as promised, or the rolling back of the Freedom of Information Act in an appalling fashion by the Government. This prevents the broadcast of programmes the Deputy would like to see. There is nothing to prevent the inquiry programme suggested by the Deputy.

The Deputy said I had criticised the BCI; in fact, I criticised the Independent Broadcasters of Ireland, IBI. Willie O'Reilly is a very good broadcaster for whom I have much respect, but I really wondered what the IBI was doing here criticising certain parties involved in the referendum and wishing there was greater freedom and not such restrictions as regards the need for balance. I am a little cynical about broadcasters because they may not want better programmes but rather ones that are more appealing to listeners for commercial reasons. That is precisely why some broadcasters in the United States were glad to see the back of the "Fairness Doctrine". The United States went down the road of biased, right wing "shock jock" radio which attracts good audiences but does not increase the quality of public discourse. When broadcasters claim they want to see an end to fairness and balance requirements, we need to be very careful. If it is not broken, do not fix it.

When dealing with the issue of communication with the public, I do not doubt that the Deputy works very hard on the door step. He has a reputation of being very hard-working. However, there was a failure on the part of the parties which agreed on the case for the Lisbon treaty to come together effectively to provide a united front. They did not appear to be very united. These are subjective observations from somebody who has been working in this field for a long time. I have not conducted any opinion poll research but it seems Fianna Fáil, in particular, sent a very negative signal. Its heart did not seem to be in it, as was the case with a number of Deputies in other parties. For those whose heart was in it, there was no clear message. One could identify four or five clear benefits associated with the Lisbon treaty if one set about doing so. These could be argued more forcefully than during the referendum campaign.

One good suggestion made by the sub-committee which reported on this issue last week was that the European Union should provide a clear and accessible memorandum of explanation on proposals such as those included in the Lisbon treaty. This would be helpful to individual citizens and——

Deputy Brendan Howlin

Would it be accepted?

Professor Colum Kenny

That is a political——

Deputy Brendan Howlin

Anything that emanates from Brussels would be instantly attacked as propaganda.

Professor Colum Kenny

It is obvious that it would be of use to the individual citizen. It would also be useful for politicians in particular countries. It would help them to focus their minds on what exactly they thought they were saying when they agreed a complex document. If the European Union is incapable of agreeing a clear summary of a complex document, what hope does the poor Referendum Commission or anybody else in the media have of explaining it?

Deputy Brendan Howlin

They would not have a difficulty. The difficulty would be in accepting a Brussels-derived document as being valid. That is the issue.

Professor Colum Kenny

Who would have that difficulty — national politicians or the public?

Deputy Brendan Howlin

Elements of the public would have such a difficulty. It is clear that there is a view that anything that emanates from the institutions of the European Union is suspect. People will argue that it is a valid perspective. However, it damages Professor Kenny's notion that there could be an agreed document. My experience indicates that it is not possible. It would not be acceptable.

Professor Colum Kenny

I understand what the Deputy is saying and there is some truth in it. That brings me back to my point that this is partly the responsibility of successive Administrations. They have failed to explain to the people the extent to which the domestic legislative agenda is set — perhaps "dictated" is too pejorative a word — by Brussels. Members of the European Parliament have estimated that between 60% and 70% of the legislative programme in any member state emanates from Brussels. People say these things off the top of their head. If the citizens of member states knew this, they might be more receptive to the general information that flows from that source. They should be reminded that things that emanate from Brussels are not always bad.

Vice Chairman

In his opening statement Professor Kenny pinned his colours to the mast of fairness. Does he equate this with equality? This issue arises when the Coughlan judgment is being interpreted, in particular. Does Professor Kenny believe, from the point of view of fairness, that when the Taoiseach, the Leader of the Opposition and the leader of the Labour Party are on one side of a discussion panel, there should be three people on the other side who should receive the same amount of time to present their views? Does he think that is fair?

Professor Colum Kenny

Are we talking about fairness in broadcasting legislation, as opposed any other aspect of equality?

Vice Chairman

Yes.

Professor Colum Kenny

Mr. Michael O'Keeffe of the Broadcasting Commission of Ireland explained to the committee that fairness or balance did not necessarily equate with equality.

Vice Chairman

Does Professor Kenny agree with that view?

Professor Colum Kenny

Yes, as a general principle. The implications have to be interpreted carefully. For the average broadcaster, it is difficult not to have a balanced panel, or a fairly balanced one. Should we draw the line at 60:40 or 70:30?

Vice Chairman

Everybody accepts that the safest thing to do is to have a stopwatch and to give everybody two minutes and 50 seconds.

Professor Colum Kenny

I do not think that is necessary. That applies more to——

Vice Chairman

That answers the point made heretofore — that fairness does not necessarily mean equality — with which Professor Kenny is apparently agreeing.

Professor Colum Kenny

Fairness does not necessarily mean equality. I do not think the producer of a programme should be under pressure to ensure those represented on the programme somehow correspond to the proportions of elected representatives who hold certain views on certain matters. We are talking about the Constitution which belongs to and is chosen by the people. If somebody is proposing to change this and the people are to vote on it, both sides of the argument should be heard. The producer of a programme should have discretion not to afford exactly equal time to both sides. Politicians should be careful that they do not get what they wish for. If we start to allow broadcasters to determine what constitutes balance, it may not approach equality. Elected politicians may be aggrieved on many occasions when broadcasters decide that balance is achieved by having X or Y. It might be different from the scenario we normally have. There have been no complaints about the system to date. I do not think we should change it on the basis of what is perceived to be one bad example.

Vice Chairman

I do not think it is a question of changing it. I am interested in the proper interpretation of the Coughlan judgment. There seems to be a grey area between fairness and equality.

Professor Colum Kenny

There is room for manoeuvre. I would be slow to give solace to anyone who would like us to move very far from the existing interpretation, particularly the interpretation in RTE, which has been fairly solid on these matters over the years. Perhaps some of the smaller independent broadcasters do not have the same level of experience of complexity in politics to make judgments that are as wise as those of a body like RTE.

Vice Chairman

We should always remember that the Coughlan judgment was not based on general panel discussions but on party political broadcasts. The opposing side, of its nature, did not have party political broadcasts.

Professor Colum Kenny

You are quite right, Vice Chairman. People confuse the two issues. You asked, at a previous meeting regarding a referendum on children, would an organisation representing paedophiles be entitled to equal time.

Vice Chairman

I was seeking an outrageous example.

Professor Colum Kenny

If an organisation exists which is regarded as totally socially undesirable, it is up to the Oireachtas to suppress it, under the Constitution. If organisations are saying things that are illegal, racist or an incitement to hatred they can be prosecuted. However, if a legal organisation says things that are not proscribed by law, broadcasters need to take what they are saying into account. That does not mean, in my experience, that a broadcaster must give equal time to an organisation of the type to which you refer, Vice Chairman, and representatives of children's organisations or the main political parties. Broadcasters would be perfectly free to exercise discretion in a case like that.

Vice Chairman

I am trying to think of an example of a group or organisation which represents the views of 2% of the population as opposed to 98%. If a constitutional change were proposed, would such an organisation be entitled to equal time on the airwaves?

Professor Colum Kenny

Not necessarily.

Deputy Michael Kennedy

I thank Professor Kenny. I reject his comments about Fianna Fáil. Like Deputy Howlin, I ran an effective and time consuming campaign in my constituency of Dublin North and we achieved a majority "Yes" vote. I do not claim that was thanks to me, personally, or to other people. The Government and the Opposition parties made their views known and communicated them. Not alone did Fianna Fáil distribute leaflets but individuals like me also put up posters throughout our constituencies asking people for a "Yes" vote and communicating reasons we asked for it. I do not say this merely as a Fianna Fáil TD arguing his case. I do not feel Professor Kenny's comments are accurate. The Government and the main Opposition parties wanted a "Yes" vote. The message did not get through. I suspect that is because mistruths were not corrected by the Referendum Commission.

We are talking about fairness and balance. In radio and television debates the "No" side could put out mistruths regarding abortion, taxation and conscription. Professor Kenny cited the Shannon stopover as a reason people might worry about the effect of the treaty on Irish neutrality. After the referendum had taken place, a lady constituent told me that a teacher, of left-wing views, had told her children, in fifth and sixth classes, to tell their parents not to vote for Lisbon because, "all you boys will be in a European army". That type of mistruth was never corrected. The Referendum Commission, for whatever reason, chose not to correct mistruths. I have been critical of the commission in the past. It has a duty to inform the public of what was right and what was wrong. For whatever reason, they did not do that. Do you believe that the Referendum Commission has a role in putting out information, giving the facts, and that the commission has the duty to correct deliberate misstatements? I use the word "deliberate" because I believe that misstatements from a number of different groups were put out with a very definite purpose. In circumstances where at least 95% of elected representatives from all the main parties asked for a "Yes" vote, it seems ironic that a small number of groups advocating a "No" vote — a right I do not deny — could deliberately put out mistruths which were not corrected by the only impartial body. That was a difficulty. None of the media made any attempt to correct that.

I have to admit I found it difficult to read the treaty and I scanned through it. It was not easy bedtime reading. This is not a criticism. I and other politicians circulated a simple eight-page leaflet explaining the benefits of Europe and what we have gained from membership, particularly the money which was used to build most of our motorways and other developments such as women's rights and workers' rights. Very few Catholics or members of other religious groups have read the Bible from cover to cover, yet they believe. I am not the first to make that statement — it is a cliché — but it is valid. How many people have read the Constitution? I suspect the vast majority of citizens have not read it. They know about it only when there is a referendum to alter some aspect. Not reading a document is not a reason for not understanding it. We as Members of the Oireachtas are unlikely to read all the documents we receive. We read a summary or synopsis.

Vice Chairman

I think that point is made.

Professor Colum Kenny

I would not expect every Deputy to have necessarily read the document, no more than I would expect every voter to have done so. Very high placed individuals have the resources to have the document processed and are sophisticated enough to deal with complex documents. When you are at the heart of matters you need to be on top of them. It would be extraordinary for your boss who was involved in processing documentation crucial to a particular walk of life in which you were working to say he did not bother to acquaint himself fully with it. The signal seemed to go out that even at the top level where people would have been expected to be fully au fait with what was being done, they did not seem to care particularly about being au fait with it. It is not a matter that it was foolish to say it or that people wanted them to lie; it is a question of people being extremely disconcerted by what seemed to be a signal that they did not need to take this very seriously.

I do not want to get into a political argument about which party did most, but even on the ground posters appeared which were highly personalised. The people are not fools. They did not feel that the Lisbon treaty was being sold in a manner which would persuade them as serious voters. An eight-page document is not sufficiently focused on benefits. The historical benefits are of little relevance. People know we have done well from the EU. As the eastern Europeans would be the first to tell us, they think the problem with Ireland is that it has done so well from the EU that it is totally selfishly now. It is future benefits you have to sell. The Lisbon treaty must be explained in a few very simple ways at which previous Taoisigh might have been more effective in terms of the bottom line for Ireland in relation to three or four particular headings. All the parties who feel that way should find a way to agree, but they did not appear to be agreeing. I could be wrong. I have often been wrong in the past, but I am here because you have asked for my opinion.

I would like to answer in relation to mistruths. Politicians frequently think that other politicians are lying. This is not the first time they have felt that other people were telling lies. There is certainly a role for media in investigating the factual situation in relation to claims that are made. I have some sympathy for the poor Referendum Commission. It is the business of politicians, and to some extent the media, to expose lies. The Referendum Commission is there to try to make a silk purse out of a sow's ear in terms of a document like the Lisbon treaty. Where the EU is not able to produce a sufficiently clear memorandum about the document, the commission has to do its best and put forward both points of view. It would be invidious to expect it to pick up particular allegations of mistruth and investigate them in the course of a referendum.

Vice Chairman

All of us would probably accept that there are some grey areas of interpretation, but when there is absolute poppycock attributed to the Lisbon treaty such as that conscription would be introduced in Ireland, how do you think that should be dealt with?

Professor Colum Kenny

Off the top of my head I do not recall the legislative basis on which the Referendum Commission is established, but the Oireachtas is always free to mandate it to investigate particular claims of mistruth. I suppose that is one way it could be done, but in practical terms I do not see how that could be achieved within the timeframe of a referendum. It is up to politicians. People voted for the parties that are almost totally united in wanting the Lisbon treaty passed. People are not persuaded by the argument. It is a question of political argument, not some kind of objective legalistic truth.

Deputy Michael Kennedy

If the role of the Referendum Commission is merely to put out information, what difference would it make if the Government of the day and the political parties were to do that, in the same way as during an election campaign? If the Referendum Commission has been engaged to prepare the documentation and send it out, surely the onus is on it to explain what is in it. If one side chooses deliberately to interpret it incorrectly, surely the onus is on the commission to correct those misstatements.

Professor Colum Kenny

This is a matter of the legislative framework. It is up to Deputies if that is what they want the Referendum Commission to do, but I think it would be very difficult within the timeframe of a referendum campaign.

Senator Alex White

I return, with some irritation, to a point I have previous raised. I am uncomfortable with the idea of trading recriminations as between the media and the political class. This is not a fall-out from Lisbon committee, a "Where did it all go wrong?" investigation. The opportunity to debate the political question in respect of what did or did not occur has been dealt with very well in another committee. There is a delineated agenda before this committee which relates to the media. It is completely legitimate for Professor Kenny or anybody else to say the fault lies elsewhere than with the media and then to explore the role of political parties, postering and so on. With respect, that is not really an issue for this committee. It is a much more confined question in relation to the media.

Our discussions arise from the impact of Coughlan and McKenna, more particularly Coughlan. That is a judgment of seven or eight years ago. The regime was different prior to the year 2000. It is not so long ago that referendums were not held in the context of Coughlan. There were party political broadcasts in referendum campaigns prior to 2000, even in circumstances where there may have been a perception of inequality arising from that. My view is very much on the lines of what Chief Justice Hamilton said in the Coughlan judgment. A change in the Constitution is a matter for the people. It is not a matter amenable to determination by the political parties. That flies in the face of what the people are being invited to do, to decide to change the Constitution or not to do so.

It has been pointed out that there some nuances in the Coughlan judgment.

Vice Chairman

At a minimum.

Senator Alex White

Exactly. I have made clear my own view in principle. Is there not some argument to be made that political parties have a special role — I hesitate to say it should be privileged — in mediating political questions of the day? We understand they are not mentioned in the Constitution. Politics happens through political parties. Public debate around political questions happens through and around political parties. There is a certain unreality in saying that they should be excluded entirely, although the Taoiseach, leaders of political parties and individual Members can appear. There certainly is a perception, not just among the political class, that political parties, their leaders and spokespersons, are greatly reduced and diminished in terms of their presentation and their access to media in the course of a referendum campaign. I agree in principle with Professor Kenny's argument, but is there not some argument for a particular role associated with political parties which ought to be reflected in the media? Hamilton's judgment is not the only judgment in that case. Some of the other Supreme Court judges thought that certainly there was such a role for political parties.

Professor Colum Kenny

I think political parties are recognised by the public and the media as having a special role and special regard is given to what representatives of political parties say. Special weight is given to that. Generally speaking, it would be sufficient to carry a referendum that all parties are united.

Senator Alex White

That is a fair answer. An intelligent political observer would come to that view. I am asking you to put on your academic hat as a media expert and writer and to say whether what you have just said could be given any practical expression in the media's handling of a referendum question. Political parties cannot make party political broadcasts. The judgment has been interpreted in a way which extends that restriction to all its coverage of current affairs. Do you think that is right?

Professor Colum Kenny

The question is based, perhaps, on an assumption that broadcasters have not taken legal advice and are acting in a rash fashion by extending Coughlan in the way that it should not be.

Senator Alex White

I am.

Professor Colum Kenny

They have to be cautious and not try to circumvent Coughlan.

Vice Chairman

They take a very conservative view for safety reasons.

Professor Colum Kenny

I am not aware of any research that looks specifically at the way in which programmes are constructed. It has not struck me that what they are doing is unduly conservative. Some of them may be confusing Coughlan with the requirements of the broadcasting legislation and going for absolute equality. I would not like to be seen as someone who was in any way supporting a move away from the practice of many years standing in relation to the interpretation of balance and fairness. In general it has been well interpreted in Irish broadcasting over the years. If we move away from that, we do so at our peril.

Senator Alex White

Some of the people who came here from the broadcast media appeared to have a very mechanical sense of what constituted equality, although they would not admit this. It was literally a stopwatch approach. They were suggesting that in the absence of detailed guidance — although I am sure the authorities have given guidance — the only way they could interpret and carry out the requirement to be fair was literally to use a stopwatch on contributions to ensure they were treating people equally in that way. Two 20-minute interviews are equal in terms of time, but one interviewee may have faced a much more rigorous set of questions than the other.

Professor Colum Kenny

Many of the broadcasters do not invest a great deal of money in the employment of experienced journalists or the sort of resources that would be required. This contrasts sharply with some of the amounts of money that are being paid for radio stations when they change hands, for example. When I was on the Broadcasting Commission of Ireland I expressed some concern about the fact that there was no relationship between the money being paid for some broadcasting organisations and the apparent investment in resources for serious investigative journalism. I think this is part of the issue. Some of them perhaps panic or do not take seriously enough, in terms of committed resources of the right kind, the problems that arise when you attempt to cover complex social, political, economic, cultural and other matters. That is a result of the kind of broadcasting system that we have drifted into.

Senator Alex White

I am in agreement with those comments. You have pointed to the fact that senior politicians had not read the treaty and that was an issue which had an effect on public opinion. Perhaps I may tentatively ask whether many journalists read the document. The principal responsibility lies with politicians, but you have accepted that some responsibility lies with journalists. You have accepted the need for analytical journalism in explaining what a treaty contains. I wonder if many journalists read the treaty. I think very few did. I do not say this as an excuse for politicians not reading it.

I do not understand why you were so dismissive about the creation of a dedicated television channel dealing with EU affairs. "Certainly not that", you said. What is so wrong with that idea?

Professor Colum Kenny

Certainly not that in terms of making any significant difference to the kinds of processes we are considering here. It is a very good idea in general terms. It is a lovely idea if we can afford it and if that is the best expenditure of money. Making a personal judgment, I cannot see it making a significant difference in how people see the European Union. There are more immediate issues in relation to EU communications policy and the way that is translated across Europe at a national level. Far more could be done to ensure communication than through that potential white elephant.

Vice Chairman

In ploughing my way through the document I found that I could not make much sense of it without referring to the basic treaties, as it sought to amend many of them. The document one should have read was a composite document of the amended treaties. Does Professor Kenny accept that would have been the best way to read it?

Professor Colum Kenny

It was an incredibly difficult document——

Vice Chairman

It was difficult to read because it sought to amend many existing provisions.

Professor Colum Kenny

Absolutely. We could not rely on it to generate any debate. That is where it becomes a political issue because it is about how politicians present it. I do not know how many journalists read the document, but the job of most journalists is mainly to make sure the debate between the political parties and others is appropriately represented. An RTE correspondent, Mr. Seán Whelan, made this point to the sub-committee which considered similar matters. The media depend ultimately on the quality of the debate generated by the politicians. If there are clear lines, they will be reflected in the media. I do not think they will be generated by journalists immersing themselves in a treaty.

The first time I tried to read the Lisbon treaty I gave up. Pushing through it was impossible. However, it is a different point entirely when the Taoiseach and the Irish Commissioner say they have not read it because they have available to them all the expertise required to interpret and contextualise it in short memoranda.

Senator Eugene Regan

I think Professor Kenny has called it right, as I do not think the system is broken. It is primarily the responsibility of politicians to convince the people of the proposition they are putting forward. When Professor Kenny says the Lisbon treaty referendum was lost because of a failure on the part of those proposing it to communicate its benefits adequately, that is tautology. We did not convince the people of the benefits; that is why the referendum was lost. It was a failure on the part of political parties. Those on the "Yes" side represented over 90% of politicians in this country, but they did not successfully rally their own members and supporters in favour of the treaty.

Professor Kenny is also right in claiming that there was no real conviction or commitment on the part of the politicians, with a few exceptions, to canvass and push the case for the Lisbon treaty. This also happened during the first referendum on the Nice treaty, but did not happen during the second when a much greater effort was made. If there is a second referendum on the Lisbon treaty, it will fail again, unless the political parties play a more effective role and individual politicians take responsibility for it.

A question was raised about whether members of the media had studied the document. It is not possible to have a balance, informed debate if the interviewer does not have knowledge of the subject matter, if he or she cannot understand the content of a treaty and is not in a position to challenge either side of the argument on the assertions they are making. The media failed in not being informed and being less than critical when debates took place and statements were made which went unchallenged. If a member of the media passes to the other side to have another exaggerated assertion made without critical analysis, the debate is diminished and sight of the real argument is lost.

Having listened to Professor Kenny's opening statement, I suggest he has a chip on his shoulder when it comes to regulation of the media. He stated that Oireachtas Members who have facilitated the development of ideological policies within the European audiovisual sphere must share responsibility for media shortcomings. Can he outline those shortcomings? He also stated that if we opt for neoliberal models of the media market, then we facilitate market forces at work. He mentioned the influence of Brussels competition policy and GATT. Can he elaborate on this?

Professor Kenny loads his argument when he states that what is crucial from a communication perspective is the commitment of elected representatives to earn their considerable incomes and perks by working harder to convince the public of the benefits of the Lisbon treaty. There was a particular political dynamic in the country in the first half of this year, when the referendum campaign was beginning. That distorted the debate and the ability of some of the parties and politicians to focus on this treaty, and Professor Kenny may not have taken those factors into account in his analysis.

Professor Colum Kenny

I am here at the invitation of the committee, so I am here to answer questions rather than load my arguments. I have not asked to be here to push my opinions on the committee.

Senator Eugene Regan

Fine.

Vice Chairman

You are absolutely free to give your opinions, which is why we want you here, even if we may not agree on everything.

Professor Colum Kenny

That is true. The Senator made a very good point about the need for anchor people in debates to be well informed. Perhaps my earlier answer polarised journalism too much between immediate news gathering and very specialised analysis. There is certainly a responsibility there and it is not enough simply to ask the different sides what they think. There was a bit of that happening, and this is due either to the personal responsibility of the professional programme presenter or to the lack of resources at the station for research and background. That is a very well made point.

European audiovisual policy has taken a very different direction since the directive on television without frontiers. There has been aggressive posturing by the US to have audiovisual services treated as a service rather than a cultural product, and in a different way from health or transport. That debate has been lost and it is still being lost. Rearguard actions are being fought in the GATT negotiations and so on. The quality of debate in the Dáil on audiovisual matters has been very limited, and only a small number of Deputies have been au fait with the sophistication of the arguments and have brought to bear any kind of understanding of what was happening in Europe. The “light touch” approach had some very superficial attractiveness to it, but it has resulted in a different kind of media.

I am not the only one who thinks this is the case. These are just the abstracts from the communications research conference in Barcelona last week. Several papers from that conference charted the impact of neoliberal policies on European audiovisual policy. A lady from Hungary gave a talk about Hungarian television and the impact on Magyar TV with the arrival of RTL into the Hungarian private sphere. These tendencies affect the quality of journalism and the quality of output. We arrive at a situation in which we have a media landscape that does not commit resources to do the kind of job we once expected from public service broadcasters. They simply do not do this anymore, and there is a history to that. What we do over a long period of time about the development of complicated policies on the media ends up bearing fruit, and we need to be conscious of that fact. The Dáil has not been sufficiently conscious about the direction in which audiovisual policy went over a long period.

I hope I have managed to address some of the issues for members, even if they do not agree with me.

Deputy Denis Naughten

I apologise to Professor Kenny for not being present to hear his contribution but I have read his submission to the committee.

Professor Colum Kenny

It is a statement rather than a submission. I am here on invitation, not to press any point of view. I am responding to the questions put by the committee.

Deputy Denis Naughten

I refer to a point made by Senator White on the specific role of political parties. I do not want to discuss it in the context of the Lisbon treaty because that would taint the committee. However, if in the next 12 months there is a referendum on children's rights, in which 99.9% of sane opinion would agree with the proposed amendment to the Constitution, as the law is currently interpreted by broadcasters, 50% of time would have to be given to the counter argument, no matter how off the rails it was. Broadcasters have told us there would be no debate or any debate would be significantly curtailed if there was no one to make a counter argument. Is it not important that a debate takes place on any constitutional amendment to be put before the people? The legislation, as it stands, does not facilitate a debate in such circumstances.

Professor Kenny made an interesting point on the amount of money invested in sustained analytical journalism. There is a lack of analytical journalism, not only in the context of the debate on the Lisbon treaty but also in the context of children's rights and other issues. That is a major flaw.

Professor Colum Kenny

It is a shame the Houses of the Oireachtas did not pay more attention to children's rights at an earlier stage in order that they would not have to deal with an amendment to the Constitution after the Lisbon treaty. There is no comparison between the two issues. Broadcasters are not correct to believe they have to abandon coverage or give equal time to contrary points of view on a straightforward issue such as children's rights. They can interpret the rules in various ways but it is much more difficult with an issue such as the Lisbon treaty, on which much more complicated matters need to be discussed. If I were a broadcaster, I would not be worried about the children's rights referendum, as there are various ways to cover myself while remaining within the law.

Deputy Denis Naughten

When broadcasters came before us, they said they would curtail discussion on the matter because of the legislation and the interpretation of the Constitution.

Professor Colum Kenny

There may be other reasons for that; one should be careful when broadcasters give a particular reason for something. They are in business and may believe there would not be any point in having a discussion.

Deputy Denis Naughten

RTE made that point.

Professor Colum Kenny

It would not be a hot topic and there would not be any need for much debate. It would not generate discussion in the way the Lisbon treaty did.

Deputy Brendan Howlin

Senator White and I work on the Joint Committee on the Constitutional Amendment on Children and Professor Kenny might be surprised to learn how hot the topic can be and how complicated the issue is. I would not be dismissive in that regard.

Professor Colum Kenny

I hope I would be surprised.

Deputy Brendan Howlin

All he need do is read the report of the last committee.

Professor Colum Kenny

Broadcasters may take the view that, as there may be a consensus, the referendum would not generate the same hot debate as the Lisbon treaty. I could be wrong but offer it as one explanation for why they may not afford it much time. They may feel there is not a great deal to be debated.

Deputy Brendan Howlin

We hope we can have consensus.

Deputy Denis Naughten

Would it not be in the interests of an organisation with a political agenda to promote itself by finding some issue with the amendment to get 50% of the coverage? In some referenda in the past individuals and groups have put forward an argument against the proposal purely to gain coverage and momentum for a position which might not have anything to do with the referendum.

Professor Colum Kenny

The Deputy suggests that some politicians will lie about their true opinions to gain publicity but I have no comment to make on that.

Vice Chairman

Can Professor Kenny remain at the meeting? I understand he has another commitment.

Professor Colum Kenny

I would be very happy to remain.

Vice Chairman

I will ask him a question which arose during the referendum campaign. I was talking to a man on his doorstep who said: "Lisbon, No.". When I asked him why, he said he would not tell me because he knew nothing about it. I asked if I could tell him about it and, again, he said "No". I said I had a document containing seven points and asked to go through the points with him but he said "No" again. He told me not to confuse him with the facts as his mind was made up. I am not neutral but avowedly pro-European and pro-Lisbon. That kind of response is very frustrating for a politician and I do not know how to deal with it. It was also typical of the response of many people throughout the country.

Dr. Maurice Hayes

There is such a thing as invincible ignorance.

Vice Chairman

It is a fair question.

Professor Colum Kenny

I am sure the Vice Chairman meets that kind of response regularly as a politician and I am sure he is better at dealing with it than most.

Dr. Maurice Hayes

If the Vice Chairman interprets fairness as equality of time I will not hold him to it but will be brief. I agree with much of what Professor Kenny said and, as Senator Regan pointed out, there are essential truths which should not be lost sight of.

My paper informed members of the nature of the forum and the work we have been doing. We were set up to provide the basis for an inclusive and broadly based debate on Ireland's participation in the European Union and the overall functioning and future developments of the Union. I understood the brief to impose an obligation of fairness on me in allowing voices to be heard. I did not want to use a stopwatch but wanted to allow people who were regarded by the steering committee as representative of a particular sector of society to make their contribution in the formal meetings of the forum.

We were set up after the first referendum when there had been a turnout of 34%. It was thought that it was necessary to create interest to increase the turnout, which went up to 50% for Nice II. The forum does not claim any particular credit for the increase as other agencies were involved. The turnout for the referendum on the Lisbon treaty was 53% and a "No" voter would regard that as a success.

We considered recruiting experts but I felt the best way to deal with the issues was by good, robust arguments. I had a feeling the more cogent and stronger arguments would drive out the weaker ones.

I do not want to look back on the referendum campaign in a recriminatory manner, to use Senator White's term. However, we need to draw lessons from it. When we analysed the results of the first Nice treaty referendum, we found that four groups — women, farmers, blue collar workers and young people — either had not voted or had voted "No". One could argue the groups in question had benefited greatly from Ireland's membership of the European Union. When we considered why they had not voted "Yes", we learned that they had not made a connection between the benefits that had flowed to them from the European Union. We put a great deal of time and effort into this. We were surprised, therefore, that Professor Sinnott's analysis of this year's referendum results had found that the same four groups had not voted or had voted "No" on this occasion. It was even more surprising, in many ways, to learn that new voters — younger people — tended to be in the "No" camp.

One of the forum's recent workshops was addressed by Professor Matt Qvortrup of University College London. He argues that people behave differently in referendums than they do in elections. I accept this. Previous delegates at this committee have asked how the country's main political parties which usually deliver 90% of first preference votes at general elections could not get 30% of the people to vote for the proposition they had put before the electorate earlier this year. It is a question of how people receive information. Professor Qvortrup has made the point that when voters do not have total knowledge, they tend to take information from intermediaries in society — people in authority such as local community leaders and teachers. Deputy Kennedy mentioned the role of teachers, for example.

As I watched the referendum campaign unfold, it struck me that one of the great difficulties was that the text of the Lisbon treaty was not available for a long time. For a couple of months we held meetings in the absence of a text. When it arrived, it was extremely complex and required cross-references, etc. Mr. Charles Sheehan of the forum produced a summary of the treaty. The various parties represented on the steering committee helped us to ensure it was broadly fair. Some 45,000 copies were issued. It was a useful document. However, the main problem was that there was no text. In its absence, the doubts came first. By the time the "Yes" groups got their thoughts together, the agenda had been set. Those on the "Yes" side spent their time rebutting things that had been said, rather than setting out the benefits of the treaty.

Another difficulty with the referendum was that unlike previous treaties put to the people, the Lisbon treaty did not have any particular selling point. We were able to focus on money during the referendum on the Maastricht treaty. In the case of the Nice treaty, we could concentrate on the accession of Poland, the Czech Republic and other east European countries to the European Union. The focus of the Lisbon treaty is governance which is not a very sexy thing to talk to people about. They do not want to hear about qualified majority voting on the doorstep.

Another point made by Professor Qvortrup was that Irish political parties were geared more towards fighting elections than participating in referendum campaigns. Such campaigns tend to necessitate the selling of ideas, at which Irish political parties are somehow not very good. Those who advocated a "No" vote were much more ready to speak at the various meetings the forum organised throughout the country than those who advocated a "Yes" vote. I do not doubt the effort made——

Vice Chairman

Was there a big turnout at the meetings?

Dr. Maurice Hayes

There was an average attendance of 120 or 130 people at each meeting. Sometimes there were over 200 people present.

Vice Chairman

Were they committed people rather than members of the general public looking for information?

Dr. Maurice Hayes

They were committed people. I did not notice the local representatives of political parties such as local councillors at such meetings. The vacuum that developed was filled in many cases by sceptical voices rather than by those of political parties.

Mention was made earlier of the possibility of having an authoritative voice making authoritative statements. At the time I suggested a legal representative be brought to meetings to say certain things were not right. We then discovered that there were experts and academics on both sides. When a given academic's name was mentioned, it was suggested he or she was tainted or committed. It was deemed necessary to get someone who was absolutely not partisan but it became extremely difficult to find such a person. We ended up trying to avoid contention between the experts.

We found it extremely difficult to generate interest in our work among the media, the press and the public in the ordinary run of things before the referendum campaign got under way. When the European Union is just bubbling along, it is difficult to get people into a room to talk about it. During the referendum campaign we received national media coverage when we brought senior figures who were newsworthy in their own right to Dublin Castle. We found that the local print and radio media were extremely good and helpful most of the time. One of the reasons for arranging public meetings was that they drew the attention of people other than those who came to them. There was a great multiplier effect at local media level. Local radio stations and newspapers did interviews with me and various speakers. Debates in the forum were syndicated to news programmes at local radio stations. We had no great worries about this.

It seems a debate is taking place below the radar. When I was in France for the referendum in that country, I noticed that such a debate was taking place in blogs, etc. The political parties in this country are going to have to come to terms with such forms of debate.

I will conclude by making a general observation. As I see it, when the facts were not in dispute — when they could be established — the debate centred on their interpretation. Various parties speculated on the impact they would have on the people. That was when a great deal of the subterranean stuff took place. Some of the issues raised such as the loss of a Commissioner were real. Nobody seemed to notice that that issue had been dealt with in the Nice treaty.

Vice Chairman

Why was that not noticed?

Dr. Maurice Hayes

I do not know. I sat at meetings wondering why some of the learned speakers who were propounding the "Yes" case did not say it.

Vice Chairman

The media did not seem to notice it either.

Dr. Maurice Hayes

Nobody seemed to notice it but the issue was there, as we now know. On the other hand, there seemed to be a general malaise or discomfort about politics. There is much in Senator Regan's point that people were distracted by other issues for the first two or three months.

Vice Chairman

Perhaps Senator Regan wishes to speak at this point.

Dr. Maurice Hayes

It took a long time before the debate got focused. If one is to learn lessons for future referenda, it will be necessary to have what we want people to decide on formulated fairly clearly in short text. There also needs to be——

Vice Chairman

How can one have a short text if one is asking for approval of a European document which, of necessity if it is amending a series of treaties, will not be a short and simple text.

Dr. Maurice Hayes

Somebody mentioned the Bible earlier. It is easier to get people to decide on the ten commandments than on the Bible. Essential elements can be drawn out. While this was not done in the case of the Lisbon treaty, it needs to be done. I am not in favour of suppressing contrary voices. Democracy lives on robust argument and taking on issues. Those on either side who believe in something must take on the issue with a certain degree of passion.

Vice Chairman

In fairness, nobody suggests suppressing contrary voices. It is a question of how much time they should be given.

Dr. Maurice Hayes

It is a matter of giving time for questioning.

Senator Eugene Regan

Dr. Hayes referred to the selling points of treaties and stated that having some self-evidently beneficial main points is key to selling a treaty. One of the best selling points of the Lisbon treaty was the new measures on combating crime, drug trafficking, and so on.

Dr. Maurice Hayes

That one was given away.

Senator Eugene Regan

That is my point. This is the very issue on which the Government decided to opt out. That decision was a fatal error in the selling of the Lisbon treaty because it was its unique selling point.

Dr. Maurice Hayes

I do not want to get into a political argument about the issue as I appreciate there may be wider considerations involved. However, if I had wanted to sell the treaty, I would have argued that it is about going after the guys who are peddling drugs, bringing in pornography and so forth. One needs at least one issue of this nature to get people but that was missing in this case.

Senator Eugene Regan

Dr. Hayes and I agree on my first question. My second question is on the British media, particularly the print media, which essentially ran a referendum campaign against the treaty. How important was their role in influencing people and turning them against the treaty?

Dr. Maurice Hayes

It was important. A universal discourse takes place in both islands on most issues, whether football, the arts or other matters. It is, therefore, inevitable that we get caught up in the debate taking place in Britain. A definite effort was made by groups in Britain, which did not have a referendum on the treaty, to have a surrogate referendum here. I have no doubt this was influential.

Senator Eugene Regan

Is it possible to identify the clear, indisputable falsehoods which were voiced during the campaign and on which any reasonable person could adjudicate? In circumstances where a complete falsehood arises on a treaty, one which is self-evidently incorrect but designed to exert influence, perhaps it would be possible to have a mechanism to oblige the persons responsible to withdraw the offending statement, poster or whatever and prohibit them from further participation in the campaign until such time as they fulfil this obligation. The purpose of such a mechanism would be to ensure decisions could be made on the basis of the factual contents of the treaty, as distinct from false statements propagated.

Dr. Maurice Hayes

This is a very difficult issue because while one could argue most of these cases are 99% wrong, there is always a little niggle or "what if?" at the bottom of it. This created the difficulty.

I heard a reference to the Referendum Commission. It has been unfairly treated because its remit was restricted by the Oireachtas in the period between its establishment and input into the Lisbon treaty referendum campaign. This is an extremely difficult issue. The only people who can beat down a bad argument are those with a better one.

Vice Chairman

That is a fair point.

Senator Alex White

In his final sentence Dr. Hayes eloquently makes the point that the only way to meet bad or false arguments or arguments with which one disagrees is to challenge them. There is always tension between what constitutes opinion and fact, particularly in politics.

It is interesting to reflect on Senator Regan's question on whether one can identify what he described as "indisputable falsehoods" which got through without being challenged. I have half answered the question in the sense that I am thinking out loud. The Senator has raised an interesting issue. Politicians are sometimes good at presenting as fact what are, in reality, opinions. We need to be honest about this. People who are opposed to us also do this, which creates competition as to how one interprets a particular fact. As we know from the recent referendum, there were polar opposite interpretations of what appeared to be indisputable facts. For example, some said a particular provision in the treaty had a certain meaning, while others argued it had an entirely different meaning.

Dr. Maurice Hayes

Correct.

Senator Alex White

It could bear fruit to examine the role of the media role in that area. I am not sure I agree entirely with the emphasis of Professor Kenny in respect of journalists. Surely there is a responsibility on the part of independent media to navigate around the competing claims of both sides and what each side considers to be the facts.

Dr. Maurice Hayes

The Senator is asking too much of the media. If they did what he proposes on every issue, we would say they were brainwashing us. One of the issues which arose in the analysis or polling done after the referendum was conscription. I only heard it mentioned once in public meetings when, I believe, Deputy Costello stated it had been raised on the doorsteps.

Vice Chairman

I heard it mentioned on the doorsteps.

Senator Alex White

Is that not an example of the subterranean debate?

Dr. Maurice Hayes

It is interesting to note how much of the debate took place below the radar and could only have been picked up by people on the doorsteps. While I do not intend to be provocative, I saw one poll immediately after the referendum in which a surprisingly large number indicated they had not been canvassed. Perhaps the arguments had to be taken on on the doorsteps. I saw things at the back of churches in the North that were very odd.

Vice Chairman

Regarding Senator White's point, I was taken by Dr. Hayes's analogy about the bible and the commandments. Would it be possible to have agreement on what should be carved in stone?

Dr. Maurice Hayes

We were taught to only bother with two of them.

Senator Alex White

Can a person pick their own two?

Vice Chairman

One is "Love thy neighbour".

Dr. Maurice Hayes

What we were both saying is that people are reassured by those they believe in and trust. If anyone told me they knew every article in a Finance Act or European treaty I would not believe them. There must be capacity to boil it down to three or four essential elements which represent the national good and allow the people to decide. It could include how we treat and protect children or accede to a European treaty.

Deputy Denis Naughten

Regardless of our discussion we tend to return to the Lisbon treaty. Dr. Hayes made an important point regarding referenda on the delay in providing the text, which was very slow in coming to allow anyone the opportunity to read it. The most informative document I read during the campaign was the forum document and it was a significant weakness that it was not put into the public domain earlier. Blame must lie with politicians and the Commission for not ensuring that the text was released at an early stage to produce a document similar to the forum document, which could explain in plain English what was in it and its implications. I contributed to several debates on local radio because no other public representative was prepared to debate the issues on the "Yes" side. This happened because the information was not available or they had not utilised that which was available.

Dr. Hayes made another valid point on the issue of referenda selling ideas. The clear winner in selling the Lisbon treaty was not the reform of EU institutions — the public does not care about that — but the issue of justice and home affairs and combatting cross-border crime. It was a "no-brainer" but the Government opted out and made it more difficult to argue a positive case.

The "No" campaign was up and running more quickly and as a result the campaign became one of rebuttal rather than a positive campaign articulating the ideas of the Lisbon treaty. A number of people said they voted "No" due to a lack of information. What two or three things could have been done differently to ensure people could have made an informed decision? One is the early release of the text and allowing impartial information to be released into the public domain.

A point made to me on a number of occasions was that the information sent out by the Referendum Commission did not pass the plain English test. Those who genuinely wanted to know about it read a page or two and put it down because of the way it was constructed. Perhaps we should ensure there is a statutory period of time between the signing of a text and it being laid before the people. Can Professor Kenny comment on that?

Professor Colum Kenny

The committee is aware I have a long-standing public speaking commitment.

Vice Chairman

Does Professor Kenny have a focal deirineach?

Professor Colum Kenny

I am sorry I cannot hear Dr. Hayes's answer. I do not mean to be discourteous.

Vice Chairman

I thank Professor Kenny. Some of his views were provocative.

Dr. Maurice Hayes

I am sure if one was advocating a "No" vote, one would think there had been a very good referendum campaign. It is difficult to discuss these matters without giving the impression that everything should be geared towards producing a particular result.

Deputy Denis Naughten

Some people said that they did not know what was in it.

Dr. Maurice Hayes

Yes, but we should have a full, complete and honest public debate on the treaty. It is interesting that people said they did not know what was in the treaty. We ran tracking polls on how many people were aware of the forum and thought they received useful information from it, and in the last year the number increased from 38% to 62%. Within that, there was a standard of 20% to 25% of people who thought they received useful information from the forum. On the very last poll that number suddenly reduced to 10% and we do not know why.

Perhaps it became fashionable to say one did not have enough information or that no one explained it properly, but I think that is a defence mechanism. There is no question that a clear text is needed and both sides need to find a way to boil the issues down. There is also a need to contact people, knock on doors and talk to them.

Vice Chairman

On Deputy Naughten's point on the Referendum Commission, in its defence we gave it a brief to interpret a legal document. We appointed public servants who were presided over by a High Court judge. Any interpretation they made of the document would have to be expressed in legal terms. Were we expecting too much from the Referendum Commission? It was not able to deal with issues in a tabloid fashion and was obliged to provide a measured response to any issue raised.

Dr. Maurice Hayes

It was not a very conventional legal document. It was essentially a political document and was the expression of a series of political compromises put into quasi-legal language, which made interpretation difficult.

Vice Chairman

In a treaty?

Dr. Maurice Hayes

Yes, which made interpretation very difficult for anybody. Many people would say, "This is what I think it means". Someone else might ask if this interpretation could not be taken from it, in certain circumstances. It would be a very bold person, in those circumstances, who would give that guarantee.

Deputy Denis Naughten

Dr. Hayes's initial comment is very telling. The window between the production of the text and the holding of the referendum was tight. This was one of the biggest weaknesses in the last referendum. Neither the public nor leaders of society had the opportunity to digest what was in the treaty and make an informed decision. The most interesting aspect of the result is that 46% of those who voted did not know what they were voting on, or voted "No" because of a lack of information. Did the short time between the production of the text and the referendum cause a problem because there was not time to explain the treaty in detail to the public?

The document produced by the forum was excellent. On several occasions when I debated with Libertas we found we could agree on the forum document. The debate then centred around what was in that document. The fact that one was, at least, arguing about a common text made it easier to make arguments for and against and inform the public so they could make a balanced decision.

Dr. Maurice Hayes

The forum document was mediated by the parties, including Sinn Féin, although they had some reservations. They wanted other things put in and implications drawn from it, which would have made it an enormously long document. There was general agreement among those parties that this was a reasonable and fair formulation. Most of the credit for that goes to Mr. Charles Sheehan.

At one point there was no text and also a feeling that the referendum had to be held before the summer. There is a sort of rhythm in Irish political life and there was reluctance to miss the June date. One would have had to trade off the inevitable loss of momentum in July and August and build it up again in the autumn. I agree with Deputy Naughten. His point is well made.

Senator Eugene Regan

I compliment the forum document. The first time I had to speak on the Lisbon treaty the forum document was the basis of my presentation.

In the unlikely event of a second Lisbon referendum, what advice would Dr. Hayes have for politicians to get it right this time in presenting the case for Europe?

Dr. Maurice Hayes

There is much to be said for getting as many of the issues as possible cleared before the campaign begins. When I met the sub-committee, Deputy Costello suggested tackling those issues head on, establishing the treaty's implications for abortion, conscription and so on and getting those issues off the table. There needs to be a commitment on all sides. It is often said that politics is local. People must be convinced where they are. They have to be helped to see the connection between the decision they make and either the benefits or the cost of that decision. I agree with much that Professor Kenny said about body language, the signals that are sent and the level of commitment. It was more like Nice one than Nice two.

Vice Chairman

Thank you very much indeed for your comments and your answers to questions. I also thank you and your team for the excellent work you have been doing in spreading the facts regarding our situation in Europe.

The joint committee adjourned at 1.05 p.m. sine die.