Saturday, 5 October 2013


Apologies for this break from our usual fare, but my essay from last year on the referendum process in Ireland is no longer available on the Human Rights in Ireland blog. As we wait for the results of yesterday's referendum, I cannot resist reposting my mischievous polemic. The low turnout and poor understanding of the issues relating to abolition of the Senate and insertion of a Court of Appeal support a lot of what I had to say!

The Irish body politic suffers from referendumitis, a terrible disease that weakens those it purports to empower. My contribution to the shadow constitutional convention is to offer, in the form of a polemic, a tentative diagnosis and a tentative cure.

As to diagnosis, referendumitis courses through Irish political life, weakening both the Dáil and the people themselves. Some recent examples demonstrate that the country is worse off for its tendency to decide contentious issues by plebiscite: the referendums on European treaties, investigative powers of the Oireachtas, and judges’ pay.

As to cure, the power to initiate referendums should be removed entirely from the Dáil’s arsenal. Instead, only popular referendums should be put to the people, once 500,000 signatures have been affixed to a petition.

No doubt my medicine will be difficult to swallow, for the host is racked by the referendumitis malady. But allowing the solution to run its course will restore Ireland to health.

The Power of Amendment
Article 46.1 of the Bunreacht provides for amendment, “whether by way of variation, addition, or repeal”. Doubts have been raised by commentators as to the lawfulness of amendments which violate fundamental rights or contradict other constitutional provisions, but the courts have steadfastly read Article 46 broadly.

Barrington J., in Finn v. Minister for the Environment, was forthright:
[T]he people intended to give themselves full power to amend any provision of the Constitution and…this power includes a power to clarify or make more explicit anything already in the Constitution.

Subsequently, in In re Article 26 and the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill, 1995, the Supreme Court rejected the suggestion that amendments to the Constitution in violation of natural law could be void and of not effect:

The People were entitled to amend the Constitution in accordance with the provisions of Article 46 of the Constitution and the Constitution as so amended by the Fourteenth Amendment is the fundamental and supreme law of the State representing as it does the will of the People.

Such stirring references to the power of the People – note the capitalization – can only thrill the blood. In substance, the people do indeed have a broad power of amendment. But the capitalization of the word “People” is jarring. Even in the Bunreacht the word is not capitalized. Barrington J. saw no need to aggrandize the citizenry in this way. Did the Supreme Court protest too much? Are the people really people with a capital “P”?

It turns out that an important formal barrier to the exercise of the power of amendment is mounted by Article 46.2:

Every proposal for an amendment of this Constitution shall be initiated in Dáil Éireann as a Bill, and shall upon having been passed or deemed to have been passed by both Houses of the Oireachtas, be submitted by Referendum to the decision of the people in accordance with the law for the time being in force relating to the Referendum.

Whatever power the people have, it can only be exercised when their hands are held by their elected representatives. Rhetorically, the People are captains of their fate. In reality, the people are vassals of their own elected representatives, allowed to make decisions only when they are asked to do so. Given that merely the passage of a Bill is required to pose a question to the people, referendums give politicians an easy way out.

The Powerlessness of Politicians
The ready availability of referendums has enfeebled the elected representatives, who are either unable to push back against wrong-headed judicial decisions or unduly afraid of being on the receiving end of the judicial lash. Consider three examples (best read in tandem with Conor O’Mahony’s previous contribution).  

The most egregious is the supine response to the Supreme Court’s decision in the Crotty case. There, a razor-thin majority of the Supreme Court held that the Single European Act fettered the power of the executive to make foreign policy. Ratifying it would thus amount to “clear disregard” of the provisions of the Bunreacht. Rather than pushing back, politicians bent the knee. All subsequent European treaties have been submitted to the People in referendums, even in cases where the treaties could safely be described as exercises in supranational housekeeping. A nadir was reached with the fiscal treaty amendment, where the treaty at issue was not even an EU treaty, and where no provisions of the amendment actually contradicted an existing judicial decision or term of the Bunreacht! At best, the referendum has a prophylactic effect, protecting against binding decisions far off in the future.

In a healthier jurisdiction, politicians would have pondered the implications of holding referendums on European treaties as a matter of course. They might have asked themselves whether complex questions of pan-European governance could really be reduced to a simple up or down vote. Such reflection ought to have been particularly acute on occasions when questions were reduced to a simple up or down vote for a second time, the required answer having not been furnished at the first time of asking.

They might then have asked whether the Supreme Court was actually right in Crotty. They might have turned to the text of the decision and wondered whether the conception of sovereignty articulated therein was one which should continue to bind the organs of state in the 21st century; whether continued acquiescence by voters to pro-European parties and pro-European constitutional amendments gives the state more leeway in negotiating treaties; and, most of all, whether the reasoning of Crotty applied to every single treaty negotiated at the European level. Perhaps, they might have wondered, having read it closely, whether the logic of Crotty ought to be considered afresh.

A strong, healthy body of elected representatives would have taken account of these potential frailties in the reasoning of the majority of the Supreme Court and pushed back against the Crotty decision. Instead, they chose the easier route: ask the people, those with the ultimate power to bind the state.

Perhaps even more depressing is the tale of the investigative powers of the Oireachtas, emasculated by the Supreme Court in its Abbeylara decision. More depressing because in holding that the Oireachtas did not have the inherent power to make findings of fact adverse to individuals, the Supreme Court left plenty of room for interpretation. Politicians might have pushed back by forming new committees, with the power to make recommendations, but without the power to make findings of fact against individuals. Or new committees with the power to make findings of fact against institutions, but not against individuals. Or – most of all – new committees with a mandate to conduct investigations with a view only to formulating proposals for legislative change. On any of these grounds, clever counsel for the Oireachtas could have sought to distinguish Abbeylara. 

A changing climate might also have contributed to reconsideration by the Supreme Court of the scope of Abbeylara. Attacking individual Gardaí, only one step removed from most ordinary civilians, who were doing their best in a situation of severe pressure is one thing. Aggressively questioning financial regulators or the Captain Edward Smiths of the financial industry is quite another. Brave politicians concerned for the health of the legislature would recognize the distinction and the space in which to push back.

Instead, an ill thought-out and poorly worded amendment was put to a referendum. Virtually no context was provided. A decade had elapsed since the Abbeylara inquiry foundered. Those events had slipped deep into the public unconscious. Pushing back earlier and aggressively would have raised public awareness. Putting a question to the people in the aftermath of an adverse judicial decision would have had the benefit of focusing minds. An intelligent public debate might even have ensued. Failure to push back led instead to a debate in which the main ‘issue’ was whether voters wanted to give the likes of Mattie McGrath more power. Reduced to these terms, the debate was one the Oireachtas could never win.

Further evidence that politicians will not take tough decisions and prefer to follow the path of least resistance comes from the judicial pay saga. When extending public sector pay cuts to judges was first mooted, there was broad public support. Academics too noted that ordinary legislation would probably suffice: general legislation with an incidental effect on judges would violate neither the letter of Article 35.5 (“The remuneration of a judge shall not be reduced during his continuance in office”) nor the spirit of judicial independence enshrined in the Bunreacht. The Attorney General concluded otherwise. His advice has not been made public, but it was hardly ill-founded: there is an argument that treating judges as members of the civil service is a violation of the Bunreacht’s separation of powers between legislature, executive and judiciary.

What is interesting is what happened next. Faced with decent arguments on both sides, the government decided to pose a question to the people rather than answer it itself. It is difficult to see how this could possibly have represented the best strategy. Opposing ordinary people and members of the judiciary was a recipe for mutual incomprehension and disaster. It would have been far better to ‘legislate and be damned’. In that case, any erstwhile judge who sought to have the measure invalidated would have had to mount a constitutional challenge. His or her chances of victory could not have been more than 50%. A calculated risk, then, for the government. Why involve voters in what was essentially a technocratic dispute between organs of state? When, as was predictable, the debate turned to whether ‘fat cat judges should pay their share’, all opportunity for intelligent discussion was lost. The standing of the judiciary was hardly enhanced by this episode.

A healthier, stronger legislature and executive might have been able to push back against some or all of these adverse judicial decisions, real and potential. Doing so would take imagination and courage, involving a commitment to public debate on wide-ranging issues. What is the nature of sovereignty in the modern world? How should legislative powers be exercised and their scope increased? Does cutting the pay of judges, along with that of other public servants, endanger the separation of powers? Avoiding deep engagement on these difficult questions, Irish politicians have instead taken the path of least resistance by reducing them to a series of Yes/No propositions. Worse, once politicians have first gone down the referendum road, it becomes progressively more difficult to turn back. Expectations of public consultation increase. Desires to push back decrease.

One bright light can be noted on the horizon. The Public Accounts Committee’s current attempt to launch a wide-ranging investigation into the circumstances of the blanket guarantee of bank debt may demonstrate that elements of the body politic have been shocked into life by the defeat of the referendum on Oireachtas powers. Only time will tell, however, whether this is merely temporary respite or the beginning of a healing process.

The Powerlessness of the People
The formal constraint on the power of amendment means that the people are trusted to vote only when they are asked to. It means they are dragged out for matters they could evidently care less about: barely a third of the population voted in the first referendum on the Nice Treaty. Moreover, the formal constraint means the people are only allowed to vote where the political elites deem it acceptable for them to do so. A referendum on children’s rights and the place of the family would be politically sensitive. As a result, the issue of the appropriateness of some of the anachronistic provisions of the Bunreacht remains in permafrost, along with those provisions themselves.

Worse, referendums on European treaties have only one answer. When the wrong one is given, the people are called back to the polling stations after a ‘period of reflection’ (during which no reflection takes place) or the extraction of ‘concessions’ (in reality, statements of the blindingly obvious). The people are free to vote Yes, when they are asked. No stronger evidence of the powerlessness of the people could be adduced.

Such powerlessness may be linked to the very nature of referendums. In their function as vassals of the Oireachtas, the people merely provide votes. No forum for discussion is provided: just a ballot box and a sheet of paper. The reduction of the people to providers of votes is facilitated by the Yes/No, up or down propositions with which they are confronted in a referendum. People are viewed as atoms, clashing together and bouncing to rest on one side or the other of an artificially imposed line.

Parliamentarians fare little better in this process. Facilitation is their role: to hear his or her master’s voice and drag as many atoms as possible to the ‘right’ side of the line.

Nowhere in this process is there room for deliberation or discussion. Yet maybe a vote on a European treaty cannot be reduced to an up or down proposition. Perhaps the role of the Oireachtas cannot be distilled into a set of investigative powers. And what of those who think that it is simply inappropriate to subject the pay and pensions of judges to a referendum?

If democracy is viewed as a deliberative and discursive process, to which people are allowed to contribute in the way they choose, be it talking, writing, phone-calling, emailing, commenting on internet message boards, marching, demonstrating, encouraging, cajoling, or whatever, the reductionist nature of Irish referendums can only be damaging to the health of the body politic.

These questions – Ireland’s relationship with Europe, the nature of the legislative function, judicial independence – are ones which require an ongoing process of engagement and contestation. No political decision or commitment is forever. And no judicial decision is forever either. Politics and law have a dynamic quality: they respond to the exigencies of their time. That dynamism can only be fed through public deliberation and discussion. It is not nourished by treating citizens as atoms and reducing important questions to simple propositions to which the citizenry parrots in unison Yea or Nay.

In a deep and meaningful sense, Irish referendums are undemocratic.

Popular Initiatives

Article 46.2 should be removed from the Constitution. There is some attraction to removing referendums altogether. Even in jurisdictions where constitutional change can (in reality) be effected only by courts and then over a process of time, popular movements, shifts in public discourse and changes in the preferences of the citizenry can work to change constitutional doctrine.

But casting referendums out might be too dramatic a cure. The body politic might not tolerate such a sudden change to its system. And even in the United States, the possibility, however remote, of effecting constitutional change through a formal process has galvanized movements on both sides of the political divide. From the left with its Equal Rights Amendment to the right’s proposed Same Sex Marriage Amendment, popular movements for constitutional change have prompted public discussion and deliberation.

What seems necessary in Ireland is for the people to be released from the shackles of their elected representations. A real power of popular initiative should be introduced. Even if the final questions on the ballot paper were to remain Yes/No propositions (although there is no rule against multiplying the available choices), the need to accumulate thousands of signatures and the process of doing so would provoke public discussion and deliberation. A high threshold of 500,000 signatures is important to ensure that the process is taken seriously and that only propositions capable of attracting support from a broad cross-section of society get on the ballot paper.

Reflection on the choices to be made about law, politics and society would be the order of the day. Referendumitis would be banished. And the people would become the People.

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