ANALYSIS: THE REFERENDUM on giving Oireachtas committees strong powers of inquiry was lost for many of the reasons the first Lisbon treaty and the first Nice treaty were lost: namely a sense it was being rushed; lack of clarity over its provisions; mistrust of politicians, their words and their motives; and a sense of being press-ganged into voting Yes.
By contrast, while there was some opposition from legal quarters to the 29th amendment providing for cuts in judicial pay, the lead-in period was longer and the issue in the minds of most voters was unequivocal – should judges, like everybody else, be required to share the pain of recession? The answer to that was a resounding Yes.
1 LACK OF TIME
The judges’ pay issue has been in the public domain for two years. And the prelude to the referendum was a voluntary salary reduction scheme for judges that had too poor a take-up to appease public sentiment.
In contrast, while the proposal to give committees more powers of inquiry was included in the programme for government in March, it was one of a raft of constitutional changes and it took some time before it became public knowledge that this would be a priority.The Referendum Commission was only set up on September 13th and so was not able to begin its public information campaign until October 11th, giving it just over two weeks to inform the public on a very detailed proposition.
Minister for Justice Alan Shatter conceded on Saturday that the lead-in time was too short.
Minister for Public Expenditure and Reform Brendan Howlin, who was the driving force behind this change, also accepted this.
2 ROLLED-UP POLLS
Holding referendums on the same day as an election can also be problematic as the issues involved can be wholly eclipsed by the drama of an election, such as the presidential one.
In this instance, media coverage indicates it was only in the last fortnight – and really in the last week – that those opposed to the amendment were truly in a position to make their case.
That came through the intervention of the former attorneys general and the heated TV spats involving both Shatter and Howlin, as well as the very clear interviews given by the Referendum Commission chairman, retired High Court judge Bryan McMahon, on radio and in press conferences.
Howlin’s interview yesterday with Seán O’Rourke on RTÉ’s News at One was unusually candid. He conceded on this point: “We did not have sufficient scope to answer their questions in a coherent enough way with a backdrop of most of the media attention and time going on the presidential election.”
3 AMBIGUITY
The slogan of the opponents of Lisbon One was pertinent to this referendum too. “If you don’t know, vote No.” People were very clear in their minds about judges’ pay, but in the last 10 days of the campaign, seeds of doubt sprang up in voters’ mind about where the 30th amendment would lead. Right at the end, the Irish Council for Civil Liberties put up posters with dire warnings about “kangaroo” courts. That was a glaring exaggeration, as was the notion put about by others that private eyes hired by an Oireachtas committee could force their way into your bedroom.
But there was certainly difficulty with some of the language of the amendment, which was ambiguous or open to more than one interpretation.
The concern most expressed was that it was the Oireachtas that decided the appropriate balance between the rights of people involved in inquiries and the requirement of the public interest.
While it was obliged to have regard for the principles of fair procedures, the way it was phrased may have implied that a decision by the Oireachtas, for example to refuse legal representation to a person, could not be appealed to the courts.
4 THE INFLUENCE OF THE REFERENDUM COMMISSION
Mr Justice McMahon was also highly influential on the issue of ambiguity. His comments in an interview with Morning Ireland were often referenced during the debate. “If the question is whether the courts will be able to judicially review that decision [of the inquiry], it will be very difficult for them to do so in the traditional sense.”
Asked would individuals be able to ask the courts to rule on decisions of procedures adopted by Oireachtas committees, Mr Justice McMahon said: “It’s not possible to state definitively what role, if any, the courts would have in reviewing procedures if adopted.” The Government did not adequately address those issues.
5 MISTRUST OF POLITICIANS
When the eight former attorneys general weighed in to the debate, Shatter chose to attack the men rather than the ball. His dismissal of their submission as “not credible” and his decision to criticise some of them personally was widely seen to have backfired.
Elsewhere, Howlin became involved in very fiery TV debates with Joe O’Toole, Rónán Mullen and Michael McDowell. They were messy and left viewers confused about the outcome.
There was a real issue about the trustworthiness of politicians to conduct inquiries. The issue wasn’t addressed by the advocates of the referendum.
One of the difficulties was that both referendums were widely supported in the Oireachtas and were passed through on a nod.
It was only in the last 10 days that some politicians began to raise questions.
Again Howlin accepted this yesterday. “One factor is the degree of mistrust between people and politicians. I thought the election had addressed a lot of that There is still a good degree of scepticism about politicians being able to do their job in a completely impartial way.”
So where to from here? The Government is unlikely to revisit this issue for at least a year.
Howlin also said yesterday that the setback posed big questions about the Government’s ambitious plans to hold a constitutional convention and to push through at least 10 referendums in the next 4½ years.
