Breda O’Brien: Referendum Commission reform is vital to democracy

It is very odd that the Citizens’ Assembly discussion of referendums has been moved to this weekend, given that it will allegedly have no impact on the upcoming referendum on the Eighth Amendment.

The assembly has demonstrated an ability to affect cultural and political change, in quite a frightening fashion. In relation to abortion, politicians and journalists, who are among the most committed observers of the political process, expressed surprise at the dramatic nature of the changes being sought by the assembly.

For example, almost two-thirds of the citizens voted for abortion without restriction up to 12 weeks and in many cases up to 22 weeks. This was out of step with polls that saw only 23 per cent support abortion in all circumstances.

As a result, the proposals advanced after flawed and unbalanced deliberations by the Joint Committee on the Eighth Amendment to the Constitution – unlimited abortion up until 12 weeks – begin to look almost moderate. Yet they deny human rights to a category of human beings based entirely on age.

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This writer has written before about the dangers of assembling a group of fewer than 100 people in a pressurised situation where they are subjected to a barrage of information in a very compressed time, most of which is presented as expert and neutral. Such a process is inevitably going to foster unhealthy consensus.

Suitable environment

Possibly for evolutionary reasons, being out of step with people perceived as being significant is very difficult for human beings. Therefore, if one wishes to promote thoughtful, truth-seeking behaviour, one has to design an environment to eradicate the subtle and not-so-subtle pressures to conform.

This is true of all aspects of the democratic process. However, politicians sometimes find it very hard to cope with the idea that people should be facilitated to think.

For example, the original 1998 Referendum Act which instituted the Referendum Commission was exemplary. It had three functions, of which two survived for a very short time.

The three original functions were: to prepare and publicise a statement informing citizens what the proposed constitutional change entailed; to prepare and publicise a statement setting out the arguments for and against the proposal, based on submissions solicited from members of the public; and to foster and facilitate public debate and discussion on the proposal.

In a typical Bertie Ahern stroke, crippling amendments to the commission's functions were rammed through immediately before the Oireachtas rose for the Christmas holidays in December 2001.

Opposition politicians in Fine Gael were vocal in their condemnation, accusing Ahern of trying to ensure that the 2002 abortion referendum would be passed, but many others recognised that the major aim was to pass the second Nice Treaty referendum.

Confidence has to be low in the will of politicians to implement proposals which could weaken their control

The legal requirement to present both sides of the argument and to foster and facilitate public debate were removed, to be replaced with an obligation to encourage voter participation and to prepare a general statement on whatever proposal was being discussed.

The existence of the commission came about as a response to a Supreme Court decision, known as the McKenna judgment. Patricia McKenna firmly believed in fairness and took a case to prevent the government spending public money on one side of a referendum only.

She did so in the context of the 1995 divorce referendum, even though she was completely in favour of divorce being introduced. She belongs to a tiny cohort of public-spirited people, such as Raymond Crotty and Anthony Coughlan, people devoted to principles of fairness and willing to take substantial risks to improve our democratic process.

Threat to democracy

We live in an age when democracy is seriously under threat, not least because the impact of foreign funding, not to mention Google and Facebook's algorithms that imprison us in ideological bubbles.

The chairman of the UK electoral commission, Sir John Holmes, recently described what he called "a perfect storm" of threats to electoral integrity, including the possibility of illegal outside interference and the impact of social media.

Note that the UK has an electoral commission, including a permanent referendum commission, even though UK referendums do not have the same legislative force as they have in Ireland.

The UK referendum commission produces materials setting out the positions of those proposing both yes and no, and also disburses substantial funding to umbrella organisations on each side.

By contrast, Ireland’s much-weakened Referendum Commission is convened only on an ad-hoc basis, which successive chairs of the body have complained about because it makes their work almost impossible.

If, after its deliberations, the Citizens’ Assembly proposed a genuinely independent and balanced permanent referendum commission with substantial funding and the power to take part in innovative public awareness campaigns, it would truly be doing the State some service.

However, confidence has to be low in the will of politicians to implement any Citizens’ Assembly proposals which they would perceive as weakening their control of the decision-making process.

There would always be the danger that even if the original functions of the Referendum Commission were restored in a new permanent form, it would be stuffed with “right-thinking” appointees, which would be more perilous than the current highly unsatisfactory situation.