The National Platform EU Research and Information Centre
by Anthony Coughlan – Secretary
There is no constitutional role for Irish political parties in referendums, although they have a political role: Political parties are groups of citizens who come together for particular purposes. Sometimes they are short-lived, sometimes long-lasting, but they are not mentioned in the Constitution and they have no constitutional role in the referendum process, where it is the citizens who are legislating, although the parties play an important political role in the Oireachtas debate which leads to a Bill being put before the people for decision. Sometimes however it may be non-party groups outside the Oireachtas that push the Oireachtas political parties towards proposing a referendum, as in the abortion referendums. The degree of interest in referendums by political parties varies with each issue.
Unconstitutionality of privileging political parties in referendums: These are among the reasons why any special scheme purporting to privilege political parties in referendums, whether by special funding or the allocation of broadcasting time, would be inappropriate and unconstitutional. The Supreme Court laid down in its 1995 McKenna judgement that it would be unfair, undemocratic and therefore unconstitutional to use public resources, which are financed by all citizens, to achieve a particular result in a referendum, thereby in effect seeking to privilege the views of one group of citizens over another, when all citizens are equal as legislators in the referendum process and no one has the right to prejudge the outcome of a referendum in advance or to assume that a particular result in the only proper and valid one. If that principle were to be breached, it could lead to a Government in office or a political party in power using public resources without limit to bribe, threaten or cajole citizens to vote in a certain way in a referendum – for example to change the electoral system or to extend its own period of time in office – and indeed to subvert the Constitution itself.
Occasional gulfs between the views of political parties and the views of citizens in referendums: There are sometimes wide differences between the views of the political parties and the views of the people on referendum issues. Thus all the Oireachtas parties were in favour of divorce in 1995, but that was narrowly carried by only some 10,000 votes in the referendum of that year, as virtually half the voters were opposed to changing the Constitution. On some issues there is virtual total congruity between the views of the political parties and the citizen voters – for example the 1998 Good Friday Agreement referendum. On other issues there may be little political party interest or controversy – for example the 1996 Bail referendum or the 1999 referendum recognising local authorities in the Constitution. So it is hard to imagine a single uniform informational scheme involving political parties which would be appropriate or could be legislated for to cover all referendums.
The European Commission is a foreign interest in this sense. It is however a highly interested party in EU-related referendums, as these invariably relate to proposals which would transfer legislative powers from the Irish Parliament and Irish citizens to the EC/EU, where the Commission has the monopoly of proposing all laws. Thus if EU-related referendums are passed here, the Commission’s powers will increase. The European Commission moreover has large sums of money at its disposal with which to influence Irish voter opinion during referendum campaigns – through the organisation of public meetings and debates, advertising, providing “information” visits to Brussels for Irish journalists and opinion-leaders and direct participation in referendum campaigns by European Commissioners and Commission employees. All these happen regularly during EU-related referendums here.
These [EU Treaties] are a matter exclusively for the Member States and their Governments. European Treaties have to be ratified by Member States in accordance with their own constitutional requirements and the European Commission should properly stand aloof from this process and be scrupulous to avoid any intervention that is, or might be construed as being, of a partisan character.
In the year before the 2008 Lisbon referendum Mr Martin Territt, Director of the Dublin Office of the European Commission, was allocated €360,000 from the Commission’s budget to finance a series of advertisements on Irish local radio publicising the “Europe Direct” information line which the Commission maintains in Ireland. These advertisements consisted of a series of statements on the lines of: “Do you know that Ireland has received X millions in money since it joined the Community in 1973?”; “Do you know that EU legislation has led to lower air fares and phone charges?” etc, followed by the statement that to find out more one should contact the “Europe Direct” line, whose number was then given. These were clearly political advertisements and as such in breach of the Broadcasting Acts which ban political or religious advertising on the Irish broadcast media. They were clearly capable of influencing voting behaviour in the next EU-related referendum, which everyone knew would be that on the Lisbon Treaty.
There is no case for regarding political parties as having a constitutionally privileged role as compared to any other association of citizens, for the Constitution does not allocate them such a role and neither the common good nor political logic make it necessary. In Irish constitutional referendums it is the citizens who are legislating, and each citizen is equal to all others. There is therefore no case for giving one particular group of citizens special public privileges and public money.