Referenda: a look at future polls

With two referenda conducted, the Programme for Government commits to four more. Stephen Dineen examines trends in October’s results and the Government’s plans. One referendum proposal was accepted and another rejected on 27 October. While the proposed constitutional convention will examine specific constitutional provisions, four referendums are expected through Programme for Government commitments.

Children’s referendum

A referendum on children’s rights is expected in 2012 after five years of deliberation on proposed wording.

In February 2007 the then government published a Bill on a constitutional amendment to strengthen children’s rights. The draft wording of the amendment was referred to an Oireachtas committee for all-party consensus. The committee published its final report with an alternative wording in February 2010. The Programme for Government commits to a referendum on children’s rights “along the lines recommended by the All-Party committee.”

The proposed new article in the constitution will entail:

• the State cherishing all children equally;

• the natural and imprescriptible rights of children, and the welfare of children being of primary consideration, including in disputes over guardianship, adoption, custody etc;

• recognition of rights such as education and being heard during judicial and administrative proceedings affecting the child;

• recognition of the role of parents in a child’s life, and the role of the State where parents fail in their responsibilities;

• provisions for adoption, where necessary; and

• the importance and parameters of education in a child’s life.

Minister for Children and Youth Affairs Frances Fitzgerald, who was on the Oireachtas committee and who will be responsible for conducting the referendum, told the Dáil on

27 September that the previous Attorney General identified “certain unintended consequences” attached to the committee’s wording. She added that “the development of a revised wording will seek to resolve these issues while staying as close as possible to the joint committee wording.”

The referendum can be seen as one that falls into UCD political science Proffessor Richard Sinnott’s religious-moral category of referendums (see text box). Religious organisations have expressed concerns about the State’s plans to extend its role in the lives of children. David Quinn, director of the Iona Institute, a Catholic think-tank, has said that while no one denies that a child’s interests must be to the fore in making decisions about children “any amendment must not give the State more power of intervention in family life than it needs.”

The proposal to enhance the rights of children has been widely welcomed by civil society groups and NGOs, including the Children’s Rights Alliance, which has said that the principles underlying the committee’s wording must remain at the core of any new wording.

Whistleblower protection

A referendum to provide protection to citizens who give information in confidence to public representatives was planned for the same day as the presidential election but was deferred because the Attorney General had not approved the wording. The referendum will be the responsibility of Minister for Public Expenditure and Reform Brendan Howlin.

Howlin has a person interest in the referendum. In December 2005 the Supreme Court ruled that the Morris Tribunal (investigating complaints into some Donegal gardaí) had the power to make discovery orders demanding information from Howlin about the sources of allegations he had received and passed on to the then minister for justice (which led to the establishment of the tribunal).

Seanad abolition

The Fine Gael and Labour manifestos contained commitments to abolish the Seanad subject to public approval. Seanad reform has been discussed for decades (12 reports have been published) but never realised and it was in this context that discussion of abolition emerged. One of the arguments against the upper house is the cost. The Report of the Special Group on Public Expenditure Numbers and Expenditure Programmes, published in July 2009, proposed abolishing it, claiming it costs €25 million a year.

While the Taoiseach told the Dáil on 11 October that the referendum on the Seanad will proceed next year, the Minister for the Environment has said the proposed constitutional convention will examine the proposal.

Court of appeal

The final strong contender for a referendum is a proposal to establish a court of appeal. The Programme for Government commits to establishing such a court. At present appeals against Criminal Court verdicts are generally heard in the Court of Criminal Appeal, except in cases that raise matters of exceptional national importance, which are dealt with by the Supreme Court. Appeals against High Court verdicts in civil cases, however, are referred to the Supreme Court.

This has been one of the reasons for the increase in waiting times for Supreme Court cases to be heard. Waiting times rose from four months to 30 months between 2003-2008.

A working group chaired by Justice Susan Denham examined the issue and reported in May 2009. It outlined five options for how a court of appeal (to deal with both civil and criminal cases) might be established and concluded that a new court of appeal should be established in law and provided for in the Constitution.

A spokeswoman for the Department of Justice told eolas that “a decision remains to be made as to when such a referendum will take place in the context of other future referenda,” adding it is not anticipated to occur before autumn 2012.

The lack of engagement by the four major political parties, all of which supported the Oireachtas committees of inquiry proposal, could be seen as a factor in the public’s rejection of the amendment.

In a 2003 paper on referendums, Professor Richard Sinnott found that the lack of major party involvement during the 2001 Nice referendum contributed to a demonstrable gap in people’s understanding of the treaty. Political consensus on amendments concerning children’s rights, whistleblower protection and a court of appeal, may not be enough to guarantee constitutional reform.

Referenda trends

Whilst there was remarkable homogeneity across the country in October’s vote on judges’ pay, and strong convergence in voting on Oireachtas powers of inquiry, other trends were noticeable.

Dublin and Ulster were the least supportive of both proposals. In the referendum on judicial pay they voted yes by 78 and 77 per cent respectively, compared to 80 per cent in the rest of Leinster, Munster and Connacht. The two regions were also most sceptical about giving the Oireachtas powers of inquiry: 55:45 against in each. These differed from the rest of Leinster (52:48), Connacht (53:47) and Munster (52:48).

The two Donegal constituencies and Dublin South-East had among the five highest no votes in both referenda, while Carlow-Kilkenny, Limerick City, Wexford, and Mayo had four of the five highest yes votes in both. All four have senior cabinet members (Hogan, Noonan, Howlin and Kenny).

27 October was not the first time the electorate has accepted one proposal and rejected another on the same day. In his 1995 book, ‘Irish Voters Decide: voting behavior in elections and referendums since 1918’, Sinnott categorised Irish referenda as either regime-related (concerning “the basic rules and principles of the political system”) or religious-moral. Ten years ago voters were confronted with three regime-related referenda: abolishing the death penalty, Ireland joining the International Criminal Court and ratifying the Nice Treaty. It accepted the first two but rejected the latter.