Since the enactment of the 1937 Constitution the people have been asked to vote in 22 referendums on issues as diverse as changing the electoral system to the removal of the prohibition on divorce. The majority of these amendment campaigns have been conducted by the political parties using their own funds.
However, in 1972 during the referendum to join the European Economic Community the government of the day published material on the implications of Irish membership. In subsequent referendums it became the norm for the government sponsoring the amendment to undertake a publicity campaign supporting a Yes vote. Since the 1995 McKenna judgment this arrangement has been transformed. The Green Party MEP, Ms Patricia McKenna, objected to the Government using public money to promote a Yes vote. And the Supreme Court endorsed her argument that such an intervention was unconstitutional.
The Chief Justice, Mr Justice Hamilton, noted that the people "are entitled to be permitted to reach their decision free from unauthorised interference by any of the organs of State that they, the people, have created by the enactment of the Constitution".
The traditional conduct of referendums has also been affected by a High Court case brought by the TCD academic, Mr Anthony Coughlan, against RTE and the Broadcasting Complaints Commission. Mr Justice Carney found that RTE could not allocate free broadcast time to political parties for uncontested partisan broadcasts in referendum campaigns. An appeal against this ruling is due to start tomorrow week in the Supreme Court.
Following the McKenna judgment the Referendum Commission was established to inform the electorate of the arguments for and against constitutional amendment proposals. It has been involved in referendums on issues such as the Good Friday agreement, the Amsterdam Treaty and constitutional recognition of local government.
However, the experience following these court judgments has been that the politicians have, in effect, withdrawn from referendum campaigns. Governments, unable to spend public money promoting a Yes vote in a referendum, have allowed themselves to be sidelined. And so the people have had to make their minds up without normal political debate.
It is correct that the need for balance and fairness on all sides of an argument lies at the heart of both the McKenna and Coughlan judgments. However, it may be that the restrictive interpretation of the court decisions by the political parties has damaged the referendum process.
In a recent paper, a UCD political scientist, Dr Richard Sinnott, argued that the Constitution, and in particular Article 27, "envisages a very significant role for the Dail, for elected politicians and, by implication, for political parties in the referendum process".
This issue has been taxing the minds of members of the All-Party Committee on the Constitution. In a draft report to be completed following the outcome of the Supreme Court appeal in the Coughlan case the committee suggests alternative procedures for conducting referendums.
The report, which has been seen by The Irish Times, notes that "some State funding is often necessary if the people are to be provided with the service of effective partisan campaign". It says that the debate in a referendum must involve "a partisan campaign involving the general clash of ideas across all the media, whipped up by advertising and promotional material".
As a means of getting around the McKenna judgment the committee is proposing a mandatory three-month waiting period between the publication of a referendum Bill and its passing by the Oireachtas.
The committee recommends that during this waiting period an all-party Oireachtas committee should examine the referendum proposals. It would "review the proposal, invite representations, hold interviews at its discretion and, within a specified time, report to both houses on all relevant aspects of the matter".
After publication of the committee's report, and before the Oireachtas passes the Bill, each member of the Dail would be "financially assisted in the production of a brochure in the numbers needed to cover the constituents of each TD". The report notes that such a measure "would heighten awareness of the Bill and ensure that opponents outside the Oireachtas would have sufficient time to mobilise".
In what is likely to be a controversial proposal, the committee claims this procedure would be "outside the scope of the McKenna judgment because it occurs before the passage of the Bill and the Oireachtas can exercise its due powers and provide funding".
Another approach suggested by Dr Sinnott is to allow both majority and minority opinion, in the Dail and outside, to receive public money to support their particular points of view in a referendum campaign.
He suggests that funding be allocated to the political parties on a proportional basis with the interest groups receiving "an even division between those in favour and those against the referendum proposal". This system would also, Dr Sinnott says, support the previous practice of RTE allocating free broadcast time to political parties on a proportional basis provided the national broadcaster "allocates additional time to interest groups on a 50-50 basis as between the Yes and the No sides".
Ultimately, whatever system the politicians opt for, the reality is that the conduct of referendum campaigns, so neutered by the two court decisions, is likely to be impacted upon once more by legislative and possibly judicial intervention.