Hibernian Law Journal *56 Fair Referendum Campaigns in the Light of Recent Court Decisions Introduction Intervention of the Cour

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Hibernian Law Journal 2015, 14(1), 56-74 Hibernian Law Journal

2015 *56 Fair referendum campaigns in the light of recent Court decisions

PATRICIA McKENNA

Subject: Electoral process. Other related subjects: Constitutional law

Keywords: Campaign expenditure; Constitutionality; Ireland; Referendums; Introduction

The Supreme Court decision in McKenna v An Taoiseach (No. 2)1 has long been a bone of contention within the Irish political establishment. This case ruled that the use of public money by the Government to support one side in a referendum was unconstitutional. Despite frequent calls for this decision to be revisited, 2 the principles established in McKenna have been reaffirmed in McCrystal v The Minister for Children and Youth Affairs. 3 In that case, the Supreme Court made it clear that there should be a strict interpretation of the McKenna principles with regard to publicly funded information. The court also held that it is possible for the Government to breach the McKenna principles without intending to do so. 4 This has reopened the debate on Government involvement in the constitutional referendum process and its provision of publicly funded information during the campaign.

This article will first explore some of the main issues surrounding the McKenna principles, as clarified by McCrystal. It will attempt to justify the reasoning behind these decisions and address some public criticisms of the decisions, with a focus on the constitutional role of Government in relation to referendums. Finally, some options for striking the balance between ensuring fairness and equality as against voters' access to accurate information on referendums will be canvassed. In conclusion, it will be argued that expanding the mandate of the Referendum Commission is the best way forward. Intervention of the Courts

The applicant in McKenna objected to the Government's use of public funds to campaign exclusively in support of a proposed amendment to the Constitution. The Supreme Court ruled that it was unconstitutional for the *57 Government to use public monies to fund a campaign aimed at persuading voters to vote in a particular way in a referendum. Hamilton CJ held:

The use by the Government of public funds to fund a campaign designed to influence the voters in favour of a ‘Yes’ vote is an interference with the democratic process and the constitutional process for the amendment of the Constitution and infringes the concept of equality which is fundamental to the democratic nature of the State.5

It is submitted that the logic of the McKenna judgment turns on the fact that, according to Article 47.1, it is the people alone who can change the Constitution. The process of making that decision must be democratic and meaningful.

The Supreme Court interpreted the equality provision in Article 40.1 of the Constitution as one that extends to equal treatment of both sides in a referendum campaign. It held that publicly funding one side had the effect of putting the voting rights of those citizens in favour of the Page2

amendment above the voting rights of those citizens opposed to it.6 Such action also represented an infringement of the constitutional right to freedom of expression and the constitutional right to a democratic process in referenda. 7

A contrasting approach to a similar question was seen in McKenna v An Taoiseach (No. 1),8 where the applicant unsuccessfully sought an inter-locutory injunction to prevent the use of public funds by Government to urge a yes vote in the 1992 Maastricht Treaty referendum. In that case Costello J took the view that the complaint regarding the Government's use of public funds was one of political misconduct which was non-justiciable. He rejected the contention that any constitutional wrong was involved in the Government using public money in this way. 9 He held that should the Government decide that something was in the national interest, then “it would be improper for the courts to express any view on such a decision”. 10

Costello J's decision displayed significant judicial deference towards the Oireachtas. In McKenna Hamilton CJ held that the decisions of Costello and Keane JJ “were based on the concept of the separation of powers which is fundamental to all of the provisions of the Constitution”11 and that this meant that the court could not interfere in the exercise by Government of its executive functions. However Hamilton CJ pointed out that in Crotty v An Taoiseach 12 Walsh J held: *58 [i]t is not within the competence of the Government, or indeed the Oireachtas to free themselves from the constraints of the Constitution … They are both creatures of the Constitution and are not empowered to act free from the restraints of the Constitution. To the judicial organ of Government alone is given the power conclusively to decide if there has been a breach of constitutional restraints.13

Hamilton CJ held that the courts could only interfere in the exercise of executive functions if “the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution” 14 and that following Crotty, the court had to ascertain whether the Government's action in this instance was “within its permitted areas of activity and function.” 15 He held that Articles 46 and 47 of the Constitution did not provide Government with a role in the conduct of the referendum. Thus he held that the use of public funds to secure a yes vote “was not an action in pursuance of the executive power of the State”, 16 and that even if it were, it would still be subject to examination and review by the court. 17

There has been some criticism of the use of the clear disregard test in this case, especially in the light of more recent decisions such as TD v Minister for Education.18 In that case Murray J stated that in his view “clear disregard” can only be understood to mean a conscious and deliberate decision by an organ of state to act in breach of its constitutional obligations. 19 Professor Doyle points out that since the executive was acting with the endorsement of the High Court decision in McKenna (No. 1) it is hard to say that it consciously and deliberately acted in bad faith. 20

In the run-up to the Children's Referendum in 2012 the Government allocated €1.1 million to fund a booklet, website and advertisement campaign to provide information on the referendum and to encourage people to vote. In McCrystal the applicant brought proceedings claiming that the information being disseminated to voters was not fair, impartial or neutral and was in fact designed to encourage a yes vote, thus breaching the principles established in McKenna. The Supreme Court held that the information failed the test of being fair, equal, impartial or neutral.21 *59 Must a Constitutional Breach be Deliberate and Conscious?

In Boland v An Taoiseach,22 O'Keeffe J implied that the State's actions were not “consciously” 23 intended to breach the Constitution, and that this lack of conscious intent excused any unconstitutional State actions. Fitzgerald CJ adopted a similar position holding that the court may intervene where the executive displayed clear disregard for the Constitution. 24 This reasoning poses a serious question: should the fact that the Government is ignorant of a Constitutional breach be relevant to the courts' ability to intervene? If the State can convince the court of its ignorance then in such instances, all its actions would be free from judicial scrutiny or constitutional constraints. Page3

The question of whether or not a constitutional breach by Government must be deliberate and conscious was brought to the fore in McCrystal. In that case the Government argued that it had at all times endeavored to comply with the McKenna decision. Denham CJ pointed out in McCrystal that the intention of the Government to comply with the court's decision was not being challenged by the plaintiff.25 Accordingly she concluded that “in all circumstances of this case, as have appeared before the court, I am satisfied that the respondents acted in a bona fide manner.” 26 Indeed, Murray J went so far as to say, “the intention of the disseminator of the information is not determinative of the outcome of such scrutiny.” 27

When considering if the information at issue in McCrystal could be considered impartial O'Donnell J dismissed the assertion that simply refraining from making a positive exhortation to vote in a particular way was sufficient. O'Donnell J pointed out that the core of the defendant's case seemed to turn on an insistence that the material published by the Government did not offend the McKenna principles because it did not specifically call for a yes vote.28 This assertion was based on the fact that in McKenna Hamilton CJ had referred to the necessity of establishing “clear disregard”. 29

O'Donnell J held that any analysis of McKenna could not be understood in a narrow sense but rather involved the application of the broad principles of fairness and equality derived from the Constitution.

To contend that the judgment asserts a right on the part of the Government to make information available, and merely prohibits blatant or egregious acts of direct advocacy, is an unduly narrow *60 approach to that judgment. It would indeed be peculiar if the most fundamental concepts of fairness and equality operated only to prohibit the use of public funds to advocate a Yes vote, but did not restrain partiality, unfairness and inequality, however pervasive that might be.30

O'Donnell J quoted from O'Flaherty J in McKenna:

[i]t is no answer to say, as has been said, that the advocacy … is gentle, bland and mild and is put forward in the context of making a fair effort on the Government's part to put all matters before the people; nor is it an answer to say that the amount involved, £500,000, is only a small amount; it may well be–but even if it is so, the principle is not affected–nor, finally, is it any answer to say that it is either the entitlement or the “duty” of a Government so to educate the public. If the Government regards itself as having that right or duty, it must exercise it without resort to public funds.31

Thus O'Donnell J held “it is difficult to see why the Constitution would require a standard that would prohibit only gross acts of exhortation (which might be ineffective) but permit effective though more subtle advocacy”.32

It is clear from McCrystal that Governmental intent is not relevant in examining a breach of the McKenna principles and the material complained of does not need to be blatant advocacy. Instead, it is the potential effect of the material which will be examined. Is there a Constitutional Right to a Fair Referendum Campaign?

It has been argued that there is no explicit right in the Constitution to a fair referendum campaign. It is true that the Constitution does not spell out any specific right to a fair referendum process. But it is also true that it does not provide any specific role for Government in referendum campaigns after the issue goes before the people.

In McKenna Blayney J considered it was significant that the Constitution gave no explicit role to the Government in the referendum process and that the sole function of the executive, which could be deduced from the text of the Constitution, was that it was its duty to submit the Referendum Bill to the people. He held therefore that constitutional justice required that the Executive should act fairly in submitting its proposal and pointed to the decision in Glover v BLN Limited where Walsh J stated: *61 Page4

[t]his Court in In re Haughey held that [Article 40.3] of the Constitution was a guarantee of fair procedures. It is not, in my opinion, necessary to discuss the full effect of this Article in the realm of private law or indeed of public law. It is sufficient to say that public policy and the dictates of constitutional justice require that statutes, regulations or agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures.33

Blayney J then pointed out that in contrast to Glover, which concerned a single individual, McKenna concerned the amendment of the Constitution itself. If the principles of natural justice apply in a private setting, then a fortiori they must apply to the collective decision of the Irish people to amend the Constitution. “Can it be doubted that the requirement that the amendment be submitted to the decision of the people should be construed as providing for fair procedures?” 34

It is submitted that since the Constitution gives the people the exclusive right to decide any constitutional change, the people should have the right to a fair and democratic decision-making process. As Hamilton CJ stated in McKenna they should be “free from unauthorised interference by any of the organs of State that they, the People, have created by the enactment of the Constitution.” 35 Denham J, in establishing a constitutional right to a democratic procedure in a referendum, held that it should be “free from Governmental intercession with the process no matter how well intentioned”. 36

In McCrystal it was again pointed out that the Constitution does not envisage or confer any special role on any of the organs of State in the referendum process once the issue is before the people.37 It is submitted that any other interpretation would be at odds with the constitutional text, which states that it is the “People” alone who can decide such change. Equality and Fairness

Equality and fair procedures are interlinked in this debate because the issue is about the equality of two positions so far as public funding is concerned. Both Denham J38 and O'Flaherty J 39 in McKenna evoked this conception of equality. In a situation where people are being asked to make a choice *62 between two competing ideas, the concept of equality must entail some form of equal treatment in the presentation of these ideas. Colin Howard, who has written extensively on the Australian Constitution, which has perhaps the world's longest established legislative rules on equality in referenda, highlights the democratic importance of equality in the referendum process. He states:

[i]t is also one of the fundamentals of democracy that more than one point of view is possible about anything. If the elector is to make a choice between alternatives by voting for the one preferred, it is reasonable that he or she should have an opportunity to hear and consider what can be urged both for and against the proposed change.40

It is submitted that unfairness is introduced in the referendum process if one option is treated as more legitimate than another by virtue of its level of elected political support. This does not mean that ideas themselves have rights. Rather, it is the holders of ideas who have rights. Those rights should include the right to have their idea treated equally when it comes to a choice between it and a competing one in a referendum. The Sovereign People and the Power of Persuasion

The sovereign authority within the Constitution is the people41 and the essential nature of sovereignty is the right to say yes or no. 42 In McCrystal, Murray J emphasised the supremacy of the people and that a referendum to amend the Constitution “involves the people directly in the governance of the country … it is a right enjoyed exclusively by them”. 43 The holder of sovereignty has supreme authority and has “the right to command and correlatively the right to be obeyed”. 44 The sovereign does not take orders from those subject to its authority. A constitutional provision that gives the people the exclusive right to decide is undermined if those subject to their authority direct their decision.

Yudof, who has written extensively on the issue of the impact of the power of governments at all Page5

levels to inform and lead the polity and thus to contribute to the development of a democratic consensus, warns that that same power “is potentially destructive of the citizenry's independence of judgment and may threaten the processes of democratic consent”.45 *63 Problems identified by him include the use of public funds and facilities to support specific views on issues before the electorate.46

In his dissenting judgment in Coughlan v Broadcasting Complaints Commission47 Barrington J accepted that the people are the ultimate sovereign in a referendum to amend the Constitution but warns that before making their decision people should be well informed and well advised. 48 He said, in this context “to play down, or neutralise, the role of political leaders in favour of committed amateurs would be, to say the least, unwise”. 49 He held that the people's political leaders should be the principal informers and advisers of the public:

[a] distinguishing feature of a democratic society is that political leadership rests, not on power, but on persuasion. Likewise political authority rests on the consent of the electorate. It is right and appropriate that political leaders should use their authority and the arts of persuasion to lead the people towards the decision which their judgment tells them will best promote the common good.50

However, the power to teach, inform and lead is also the power to indoctrinate, distort judgment and perpetuate the current regime. “Like coercion, persuasion can be employed for many different purposes, some more acceptable than others.”51

After the decision in McKenna, a government campaign designed to sway voters, may have increased persuasiveness. This is because voters may assume that the Government's information does not breach the decision of the Courts, and is therefore factual and balanced. In McCrystal, O'Donnell J acknowledged that “subtle advocacy may be much more effective than a blatant or egregious advocacy.”52 He stated:

[i]t is a common observation that a person who is able to frame the debate, particularly if they can put themselves in a trusted position as the purveyor of information, will often succeed. The most valued position in politics is the appearance of being above politics. The fact that the message here cannot necessarily be described as strident, blatant and egregious, or campaigning advocacy or propaganda, is to miss the point.53 *64 The assumed trustworthiness of the information provider can be a crucial factor in swaying public opinion. Psychological research shows that information presented by untrustworthy endorsers is likely to be thoughtfully scrutinised, whereas information presented by trustworthy endorsers is likely to be unthinkingly accepted.54

Proving the effectiveness of propaganda campaigns is a complex and almost impossible task, which was acknowledged by Costello J in McKenna (No. 1).55 However, in McCrystal, the Supreme Court held that it was possible for the courts to assess the potential of information to influence referendum outcomes, even if it did not actually do so. Spending Public Money: Where Do We Draw the Line?

There appears to be a certain level of confusion within political circles with regard to the fundamental point at the heart of McKenna and the issue of constitutional reform. For example, the 1996 Constitutional Review Group (CRG) report56 rejected the idea of bypassing the People and allowing amendments to be made to the Constitution by an Act of the Oireachtas. Even in the case of stylistic, technical, minor or insignificant amendments it was felt that it would be difficult to define objectively what would be minor or insignificant and what might be considered stylistic or technical could later be found to have substantive effect. While opposing the right of the Oireachtas to amend the Constitution without the consent of the people, the report then goes on to propose the removal of the constitutional ban on State funding. It argues that it is “unreasonable that a Government with a programme of constitutional reform approved by the Oireachtas may not spend public money in order to promote that reform”. 57 If it is unreasonable Page6

to curtail the methods a Government may use to secure constitutional change, then why insist that all changes must get approval from the people in advance? There is clearly an inconsistency in this reasoning.

The CRG and others58 have also recommended the introduction of ‘equitable’ funding in referendum campaigns. But if this approach had been used in, for example, the Children's Rights referendum, where most campaign groups and almost all members of the Oireachtas were on the proposer's side, it would have resulted in disproportionate public funding of one side and would fly in the face of the principles established by the Supreme Court. *65 The restrictions that flow from McKenna only apply to the use of public funds to secure a yes vote. In McCrystal, Denham CJ held that Government is “entitled to campaign for a yes vote by any methods it chooses, other than by the expenditure of public funds” and that “[p]artisan advertising, that is advertising in one way or another urging a particular result, may be carried out by any person or by an organised group or political party, including parties composing the Government of the day, but it must be done at their own expense.”59 It is therefore misleading to imply that Government, members of the Oireachtas or political parties are somehow restricted in advocating a particular outcome.

It has been said that McKenna coupled with Coughlan, deprives politicians and political parties in a referendum campaign of the kind of influence and access to the airwaves which they would normally enjoy by virtue of their elected position.60 This assertion seems to overlook the fact that the Coughlan judgment relates only to party political broadcasts which are funded by the taxpayer. As illustrated above, political parties are free to spend their own money to secure a yes vote. Barrett argues: “[t]he raison d'être of political parties is to fight elections rather than referendum campaigns. Placing the burden of winning a referendum on political parties makes the unrealistic demand of Opposition parties that they cast self-interest aside and campaign on behalf of the Government.” 61 There is a certain truth in this claim, because studies show that political parties are reluctant to dig into their own pockets to fund referendum campaigns. 62 Though much of this funding also comes from the taxpayer, parties are not restricted from using it for referendum campaigns, but choose not to do so. The key problem arising from McKenna and Coughlan concerns who is to cover the cost of persuasion in referenda when there is no personal gain for the politicians concerned in spending money that might otherwise be useful to get them re-elected. The Way Forward for Future Referenda Neutral Information Providers: who is best equipped to fulfil this role?

The Supreme Court makes it clear that the Government and the Oireachtas are not restrained in referenda provided they operate within the limits set by the Constitution as interpreted by the Courts. They are free to participate in a referendum campaign in their “capacity as office holders, including the *66 incidental use of facilities (such as offices and incidental services) which are available to them as office holders or elected representatives.”63 Denham CJ repeated throughout McCrystal that there is an obligation upon the Government, if it wishes to expend money providing information in relation to a referendum, to do so in a manner that is fair, equal, impartial and neutral. 64 The question that needs to be examined is this: can a government information campaign on a proposal that it strongly supports be unbiased?

O'Flaherty J recognized this problem when he stated in McKenna that it would be “unrealistic to expect a Government to remain neutral on a topic which it has, through its initiative, brought to the people.”65 Although he held that “it is impermissible for the Government to use public money to advocate a particular result” 66 in a referendum, he then went on to hold that the Government “is clearly entitled to spend money in providing information to the public on the implications of the Constitutional amendment”. 67 This reasoning appears somewhat circular, because if it is impossible for a government to remain neutral then inevitably any information campaign that the government conducts will be in danger of being biased in favour of the referendum it is proposing.

In McCrystal, O'Donnell J drew attention to the submission in support of the State by Dr Eoin Page7

O'Malley,68 who suggested that it was impossible to provide truly neutral information, or at least for the proposer of any constitutional amendment to do so. O'Malley submitted that “[i]f one is to give information about a proposal, and is restricted to just giving information, then one almost inevitably must base it primarily on the rationale for the proposal”. 69 O'Donnell J was sceptical of this view and pointed to the ability of the Referendum Commission to do this. However, O'Malley's point is worthy of further consideration in the light of the decision in McCrystal and the current restricted remit of the Referendum Commission.

O'Malley's assertion that it is “unreasonable to expect the sponsor to remain neutral”70 is a view that would seem to be supported by the Chief Justice where she states:

[i]t is questionable whether it is wise to ask a Minister, who is promoting a referendum on behalf of the Government, to publish neutral information on the Referendum. It may be that it is itself inherently unfair to ask a Minister, and indeed her Department, which *67 are promoting a referendum, and who clearly believe in its merit, and wish for a “Yes” vote, to draft and publish neutral information. This role may be best performed by a body not invested in the referendum.71

So what can Government do in a referendum campaign and how can it avoid breaching the Constitution as interpreted by the courts? One option would be for Government to do nothing at all after it passes the Bill–it spends no money outside of facilitating the normal mechanics of the vote on polling day and the count. Mansergh suggests that where a proposed amendment appears to have little or no opposition inside or outside the Oireachtas the spending of public money on a yes–no campaign might be seen as somewhat excessive if nobody feels strongly enough about it to express any opposition.72 But it is unlikely that any constitutional amendment would attract no opposition whatsoever, even if only on grounds of its cost.

Another option suggested by a number of political scientists is that public funding be channeled through civic organizations, both political and non-political.73 This option is also referred to at length in the judgment of Denham CJ in McCrystal 74 and is the practice adopted in the UK, where an Electoral Commission can provide equal sums of money to umbrella groups if such exist. While the idea does have merit it could pose some problems. When setting up the Referendum Commission in 1998, Minister Dempsey warned that providing funds directly to political parties and interest groups would not guarantee simple factual information for voters. He said it would likely “result in more disjointed information about different facets of a proposal which might leave the electorate even more confused”. 75 He warned that it would be extremely difficult to set down criteria for the approval of such funding or for public accountability of its use. He also pointed out that that there was the potential for the wastage of public funds if there was only a very small minority that could avail of the funding for a no campaign and that this in itself might be unfair.

It has also been pointed out that a 50/50 rule creates a perverse political incentive to oppose constitutional amendments. Because “politicians who oppose the amendment occupy a much less crowded space populated by much less experienced political actors.” 76 This is a fair point. However, politicians are free to use whatever perverse logic they wish to arrive at their position in a referendum. It only becomes a problem if such Machiavellian *68 motives are rewarded at the expense of the taxpayer. If the funds are given to an independent body this would not happen. That is why it is argued that the approach adopted by the Referendum Act 1998 77 which established the Referendum Commission is the most desirable option.

In light of the above difficulties, and because it is hard for the sponsor of a proposal to remain neutral in relation to it, it is advisable for Government to allow an independent neutral body to take responsibility for providing the public with the information necessary to make an informed choice. Such a body does exist: the Referendum Commission. The Referendum Commission and its Original Functions

Section 3(1) of the Referendum Act 1998 gave the Referendum Commission three main functions: (1) to prepare and publicise a statement informing citizens what the proposed constitutional change entailed; (2) to prepare and publicise a statement setting out the arguments for and against the proposal, based on submissions solicited from members of the public; and (3) to foster and facilitate public debate and discussion on the proposal. The Act stipulated that these Page8

three functions be carried out by the Commission in a manner that was fair to all interests concerned.

It would be reasonable to expect that for the Commission to do an effective job it would be given enough time and be set up well in advance of any particular referendum. It would need sufficient public resources to finance its work. And common sense suggests that it should not be overloaded with different unrelated referendum propositions which it would have to publicise at the same time. However, having put through the Referendum Act 1998, the Government then went on to set the Commission an almost impossible task in its very first outing when it had to deal simultaneously with the Good Friday Agreement and the Amsterdam Treaty. Gilland points out “whether driven by fear of a low turnout or in an attempt to railroad the Amsterdam Treaty through, the Government scheduled both referendums for the same day”.78 Mansergh also criticizes this decision because it left the newly-established Referendum Commission with too little time to perform its job effectively. 79

The Referendum Commission recommended in its post-referendum reports on the 1998 referenda that more time should be given to prepare its campaigns.80 This was ignored, and in the first Nice Treaty referendum in June 2001 the proposal to amend the Constitution to permit the ratification of that treaty was coupled with two other proposed amendments, on *69 abolishing the death penalty and on the International Criminal Court. In their reports following the 2001 referenda, former Chief Justice Finlay and his fellow Referendum Commissioners expressed their frustration at the conditions in which the Government expected them to carry out their statutory functions. 81 The Reduced Role of the Referendum Commission

Following the Government's defeat in the first Nice Treaty referendum in 2001, the Dáil voted to remove entirely from the Referendum Commission the two functions of providing the yes and no arguments and of fostering debate. It replaced the latter function with a new function of promoting public awareness of the referendum and encouraging citizens to vote at the poll.82 This dramatically reduced role presents a number of problems. Firstly, considering Dr. O'Malley's argument that if restricted to just giving information, then one almost inevitably must base it primarily on the rationale for the proposal, 83 there is a danger that the integrity of the Referendum Commission's information may be at risk. Secondly, removing the yes and no function denies voters access to a reliable source of information on the pros and cons of the issue to be voted on. Finally, the removal of the Commission's role of providing the yes/no arguments may make it easier for inadvertent errors to go undetected.

In the Lisbon Treaty referendum campaign the Commission's adverts contained a misrepresentation of fact on the effect that treaty would have on voting in the EU Council. One of the most significant changes introduced in the Lisbon Treaty was the shift in voting power between EU states.84 The Lisbon Treaty abolished the EU's traditional Qualified Majority Voting (QMV) system where smaller countries had more votes per head than bigger member states. The Commission's public statement on this matter implied that this QMV system would be unchanged. 85 Problems *70 surrounding the inability to scrutinize the accuracy of information provided by the Referendum Commission were demonstrated in Doherty v The Referendum Commission. 86 In that case, the High Court refused judicial review of statements made by the Referendum Commission in the run-up to the Fiscal Stability Treaty referendum on the grounds that they were not manifestly inaccurate or misleading. This decision was reached despite Hogan J holding that without a reference to the European Court of Justice he could not express a definitive view on the ultimate question raised. 87

However, Hogan J did establish in Doherty that statements made by the Commission are capable of review by the court but that the court would only interfere where the statement was plainly wrong or manifestly inaccurate or misleading. He also held that it would be necessary to demonstrate that such an erroneous statement was likely to materially affect the outcome of the referendum.88 The unsuccessful challenge in Hanafin v The Minister for the Environment illustrates the difficulties involved in trying demonstrate that erroneous or unconstitutional one-sided information has or is likely to affect the outcome of a referendum. 89

If the Referendum Commission had the responsibility for collecting and assessing all the Page9

arguments for and against a proposed amendment fewer problems would arise. Conflicting conclusions would be noticeable and errors of fact would be rectified. Resistance to the Provision of Yes-No Arguments in Referenda

The original role of the Commission in 1998 (to provide voters with the yes and no arguments) was heavily criticized within the political establishment with unsubstantiated claims that “it led to erroneous arguments being presented as facts”.90 *71 The radically reduced role of the Commission post 2001 receives little attention in academic analysis covering the issue of Irish referenda post McKenna and the establishment of the Referendum Commission. O'Mahony attributes the result of the second Nice referendum to a change of attitude within the political parties and better organized campaigns, but avoids any reference to the reduced role of the Commission.91 However, another important and more fundamental difference between Nice 1 and Nice 2 which has been overlooked by academic researchers, was that voters were given two proposals within one question on the second occasion. The amendment to permit the ratification of the Nice Treaty was coupled with an amendment precluding the State from joining an EU common defence without a referendum–both issues being put forward as one consolidated proposition to which citizens had to vote either yes or no. They could not vote on each of its elements separately. Therefore, if voters were in favour of Nice but not in favour of any barrier to joining a future EU defence they could not choose to vote for one and against the other. This approach, of combining two different questions in one, was adopted again in the 2013 referendum on setting up a new Court of Appeal, as this amendment was coupled with an another amendment to abolish the one-judgment rule under Article 34.4.5 of the Constitution. Both amendments were presented in one question, making it impossible to accept one and reject the other. This could perhaps have been avoided if a permanent Referendum Commission with an effective mandate was established to oversee the procedure for proposed constitutional change.

In some recent referenda further obstacles were placed in the way of the Commission. In the 2012 Stability Treaty referendum and in the Children's referendum the Government divided the public funds available in order to run two parallel information campaigns, one by the independent Referendum Commission and one by the Government itself.92 There was no clear reasoning behind this policy. Although the Courts were never asked to examine the material produced by Government for the Stability Treaty referendum, it is submitted that it was similar to that which was criticised by the Courts in McCrystal. Indeed the fact that this practice had already been established without challenge was used by the State side in McCrystal. 93

In Doherty, Hogan J pointed out that certain proposed constitutional amendments may lead to consequences which are not foreseen and also that during the course of a referendum campaign extravagant and extreme claims can be made and that it was against this background that the Referendum Commission was first established.94 He stated: *72 [i]t was considered desirable that a specialist body would be established which would seek impartially to ascertain the true facts (insofar as they could be ascertained) and to communicate general information to the public. This is reflected in s 3(1) of the Act of 1998 which provides that any statements made by the Commission shall be fair “to all interests concerned” and this is complemented further by s 2(11) which states that a member of the Commission “shall not advocate or promote a particular result in the referendum in respect of which the Commission was established”.95

This would clearly support the argument that the Referendum Commission is best placed to carry out the vital role of providing the voter with the information necessary to make an informed choice. International Best Practice

The principles of a fair process in voting are internationally accepted. In its General Comments on Article 25 of the International Covenant on Civil and Political Rights, the UN Human Rights Page10

Committee states that persons must be free to vote for or against any proposal submitted to a referendum, “without undue influence or coercion of any kind which may distort or inhibit the free expression of the elector's will”.96

In their judgments in McCrystal, Murray J97 and Denham CJ 98 both refer to best international practice and in particular to the “Code of Good Practice in Referendums,” 99 adopted by the Venice Commission for Democracy through Law, which is attached to the Council of Europe. This code includes the statement that equality of opportunity must be guaranteed for supporters and opponents of the proposal being voted on. This entails a neutral attitude by administrative authorities, in particular with regard to publicly funded campaigns.

Denham CJ also points out that in Australia publicity pamphlets distributed to citizens by the Electoral Commission set out the arguments for and against proposals to amend that country's Constitution.100 The Referendum Commission has also referred to international standards and recommended as a matter of urgency a review of its statutory remit and an adherence to best international practice as regards Irish referenda. Section 128 of the Australian Constitution requires that a majority of electors in *73 a majority of that country's states approve any proposal to amend the Constitution which has been passed by an absolute majority of each House of Parliament. Constitutional change in Australia is quite rare. In 1911 two proposals to change the Constitution were put to Australian electors and both were firmly rejected. 101 The Government of the day felt that this result could be explained, at least in part, by electors being misinformed on the issues and as a result introduced a legislative requirement that prior to any constitutional referendum a yes/no pamphlet must be posted to each voter. Australian law requires equal treatment for the yes and no cases regardless of the size of the party political opposition to the proposal. The views of a single dissentient must receive the same weight in the official documentation as those of all the other members of Parliament. 102 A government-funded information campaign which claimed to be neutral led to a successful court challenge in Reith v Morling. 103 In that decision the court adopted a broad interpretation to the class of material that was prohibited under the legislation.

However the rules in Australia are somewhat different to those that exist in Ireland post McKenna, as there have been occasions where only a yes argument was distributed to electors. This occurred when a proposed amendment received unanimous support by both Houses. The legislation specifies that where no member of either House votes against the proposed law, there can be no official “No” case.

In the Irish context this would, under the status quo, be unconstitutional. But it is worth noting that the majority required to amend the Irish Constitution is much less challenging than that required under the Australian Constitution. Under the Irish Constitution Article 47.1 provides that a proposal to amend the Constitution will be passed if a simple majority of those voting on the day approve it. Thus it is possible to change the Constitution with only a small number of votes. In fact two votes in favour of the proposition could succeed if only three people turn out to vote on the day. Furthermore, a majority of votes in favour does not need to be a majority of the votes cast. Thus if the combined votes against and spoiled votes outnumber the votes in favour the amendment is still adopted. That was the situation in the referendum on Cabinet Confidentiality where the votes in favour were not a majority of the votes cast. *74 Conclusion

The Supreme Court rulings on fairness in the referendum process should be welcomed by all democrats. The principles established in McKenna as clarified by McCrystal have the potential to create a much fairer process for amending the Irish Constitution. The original Referendum Commission as set up by Minister Dempsey would be the most obvious choice for providing a process that will respect both sides equally. Criticism of the Commission is not convincing and fails to take account of some important relevant factors. Furthermore, unlike other actors in a referendum campaign, it may not engage in falsehoods, exaggerations or irrelevancies.

The Constitutional Convention has indicated that there will be further proposed changes to the Constitution in the near future. The referendum on gay marriage is already in the public domain and there are concerns that voters may be misinformed on what the proposed change will mean. Page11

If a permanent Referendum Commission with expanded functions, that include the yes/no function, is established well in advance voters will have the opportunity to be informed by a reliable and impartial source before making their decision.

Amending the Constitution is not something that should be approached lightly. Once the Constitution is amended the People must live with the consequences. It is not a decision easily reversed as the campaign to repeal the 8th Amendment demonstrates. The repeal of a provision of the Constitution requires a new constitutional amendment that can only come from the Oireachtas in a Bill passed by both its Houses.

This journal may be cited as e.g. (2007) Hibernian L.J. 1 [(year) Hibernian L.J. (page number)]

Hibernian Law Journal 2015, 14(1), 56-74

1. [1995] 2 I.R. 10 [hereinafter McKenna]

2. Gavin Barrett, A Road Less Travelled: Reflections on the Supreme Court Rulings in Crotty, Coughlan and McKenna (No. 2), (IIEA, 2001), p.28

3. [2012] I.E.S.C. 53 [hereinafter McCrystal]

4. ibid, p.30

5. McKenna, supra, note 1, pp.40–42

6. ibid, p.43

7. ibid

8. [1995] 2 I.R. 1, pp.5-9 [hereinafter McKenna (No. 1)]

9. ibid, pp.5-6

10. ibid, p.6

11. McKenna, supra, note 1, p.39

12. [1987] I.R. 713 [hereinafter Crotty]

13. ibid, p.32

14. ibid Page12

15. McKenna, supra note 1, p.40

16. ibid, p.41

17. ibid

18. [2001] 4 I.R. 259

19. ibid, p.337

20. Oran Doyle, Constitutional Law: Text, Cases and Materials, (Dublin: Clarus Press, 2009), pp.370-371

21. McCrystal, supra note 3, pp.54-55

22. [1974] I.R. 338

23. ibid, pp.363-364

24. ibid, p.362

25. McCrystal, supra note 3, pp.78-79

26. ibid, p.83

27. ibid, p.34

28. ibid, p.30

29. McKenna, supra note 1, p.32

30. McCrystal, supra note 3, p.38

31. McKenna, supra note 1, p.46

32. McCrystal, supra note 3, p.35

33. [1973] I.R. 388, p.425 [hereinafter Glover]

34. McKenna, supra note 1, pp.48-50

35. ibid, p.42

36. ibid, pp.53-54

37. McCrystal, supra note 3, p.24 Page13

38. McKenna, supra note 1, p.53

39. ibid, p.43

40. Howard, Australia's Constitution, (Ringwood Victoria: Penguin, 1985), p.132

41. Crotty, supra note 12, p.93

42. ibid, p.97

43. McCrystal, supra note 3, p.24

44. Wolff, The Conflict Between Authority and Autonomy, (Oxford: Basil Blackwell, 1990) p.20

45. Mark G Yudof, “When Governments Speak: Toward a Theory of Government Expression and the First Amendment” (1979) 57 Tex. L. Rev. 863, p.863

46. Yudof, When Government Speaks: Politics, Law, and Government Expression in America, (California: University of California Press, 1983), pp.6-10

47. [2000] 3 I.R. 1 [hereinafter Coughlan]

48. ibid, pp.125-127

49. ibid

50. ibid, p.128

51. Yudof, supra note 46, p.865

52. McCrystal, supra note 3, p.42

53. ibid

54. Priester and Petty, “Source Attribution and Persuasion: Perceived Honesty As a Determinant of Message Scrutiny” Personality and Social Psychology Bulletin 21 1995, pp.637-654

55. McKenna (No. 1), supra note 8, p.6

56. Constitutional Review Group, Report 1996, (Dublin Stationery Office), pp.397-404

57. ibid, pp.403-404

58. Sinnott, Garvin and Manning, Dissecting Irish Politics: Essays in Honour of Brian Farrell, (Dublin: UCD Press, 2004), pp.160-177

59. McCrystal, supra note 3, p.37

60. Barrett, supra note 2, p.4 Page14

61. ibid

62. Mads Qvortrup, “Not so Nice: The Irish Referendum on EU Enlargement”, http://www.iandrinstitute.org/New%20IRI%20Website%20Info/I&R%20Research%20 and%20History/I&R%20Studies/Qvortrup%20-%20Ireland%27s%20Nice%20 Referendum.pdf [Accessed 20 April 2015]

63. McCrystal, supra note 3, p.27

64. ibid, pp.37, 38, 76, 77, and 86

65. McKenna, supra note 1, p.43

66. ibid

67. ibid, p.42

68. McCrystal, supra note 3, p.26

69. ibid

70. ibid

71. ibid, p.82

72. Lucy Mansergh, “Two Referendums and the Referendum Commission: The 1998 experience” (1999) Irish Political Studies 14(1) pp.123-131, p.129

73. Gallagher and Uleri, The Referendum Experience in Europe, (Basingstoke: Macmillan, 1996) p.247

74. McCrystal, supra note 3, pp.47-50

75. http://historical-debates.oireachtas.ie/D/0486/D.0486.199802030015.html

76. Barrett, supra note 2, p.26

77. Referendum Act 1998 (1998 No.1)

78. Gilland Luitz, “Referenda in the Republic of Ireland” (1999) Electoral Studies 18(3) pp.430-438

79. Mansergh, supra note 72, p.123

80. Referendum Commission Report (1998)

81. https://www.refcom.ie/en/past-referendums/treaty-of-nice-2001/reports-of-the-referendum-commission.pdf [Accessed 20 April 2015]

82. Referendum Act 2001, s.1 (2001 No. 53)

83. supra note 68 Page15

84. Article 16, Treaty on European Union

85. Referendum Commission advertisement broadcast before the 1 O'clock news on 1 October 2009 stated: “[r]ight now, some decisions need every one of the 27 EU countries to agree to it. Others are decided by a sort of majority called a qualified majority. In this system, each country has a certain number of votes, with smaller countries such as Ireland having more votes per head than the bigger ones. If the Lisbon Treaty is ratified some decisions which currently have to be unanimous will be decided in future by this Qualified Majority Voting system.” However the Qualified Majority Voting system where smaller countries such as Ireland have more votes per head than the bigger ones is abolished with effect from 1 November 2014 by Lisbon. This was one of the most important changes introduced by this treaty as it introduced a shift of voting power from the small to big member states. Under Lisbon, the six largest member states would increase their share of the vote in the Council from 49% to over 70%. Depending on population size, the 21 smallest countries would reduce their combined share from 51% to less than 30%. Ireland would halve its vote from around 2.0% to 0.9%.

86. [2012] I.E.H.C. 211 [hereinafter Doherty]

87. ibid, p.65

88. ibid, pp.31-39

89. [1995] 2 I.R. 321. The recent Supreme Court decision in Jordan v Minister for Children and Youth Affairs &ors

[2015] IESC 33 appears to have altered the test to be applied when a provisional referendum certificate is challenged. In that case Denham CJ held that the effect on the referendum's outcome is to be assessed by the standard of the “objective reasonable person”. She stated that the object of this test is “to identify the point at which it can be said that a reasonable person could be in doubt about, and no longer trust, the provisional outcome of the election or referendum”. The difference between the tests applied in Hanafin and Jordan may have arisen because the margin by which the referendum was decided was narrower in Hanafin than in Jordan.

90. Jane O'Mahony, “Ireland's EU Referendum Experience” (2009) Irish Political Studies 24(4) pp.426-429

91. ibid

92. In the 2008 and 2009 Lisbon Treaty referenda funds were also divided between the Commission and Government.

93. McCrystal, supra note 3, p.26

94. Doherty, supra note 86, pp.32-33

95. ibid, p.34

96. Article 25, International Covenant on Civil and Political Rights

97. McCrystal, supra note 3, p.39

98. ibid, pp.40-46

99. Venice Commission, Code of Good Practice on Referendums, (Venice, 16 December 2006) (2007) CDL – AD 008

100. McCrystal, supra note 3, p.50

101. Commonwealth of Australia House of Representatives Standing Committee on Legal and Constitutional Affairs, A Time for Change: Yes/No? Inquiry into the Machinery of Referendums, December 2009, p.7

102. Saunders, “Referendum Procedures” in Report to Standing Committee, Australian Constitutional Convention Constitutional Amendment Sub-Committee, (1984), Appendix 7, p.113 Page16

103. (1988) 83 A.L.R. 667