In its recent report on the referendum, the All-Party Oireachtas Committee on the Constitution has recommended changes in the way in which referendum campaigns are conducted and funded.
This is a good thing. It has been clear for some time that the referendum process has been unsatisfactory. The evidence for this lies in low turnouts and in post-referendum survey data showing that lack of understanding by the electorate has been a major cause of abstention and has even affected vote choice.
The all-party committee proposes to remove from the referendum commission the onus of presenting the arguments for and against a referendum proposal. This again is a good thing as the evidence shows that this aspect of the referendum commission's activities has not been very effective in informing or mobilising voters.
The committee's second main recommendation is that there should be public funding for referendum campaigning and that such funding should be divided equally between those in favour and those opposing the proposal.
The report indicates that this was the minority view within the committee but was accepted as a recommendation by a majority because of the desirability of being consistent with the McKenna judgment.
However, the report makes it clear that the majority felt that "the issue of funding should be decided on the basis of what was equitable rather than what was equal" but "did not believe in pressing their view to a referendum proposal at this stage".
In the committee's view, an equitable approach would start by dividing the funding into two equal segments. One segment would then be divided among the parties in the Oireachtas in proportion to their size.
The other segment would be divided equally between the pro and anti groups outside the Oireachtas. Obviously, there would have to be a lot of debate about precisely how this should be done. For the present purpose, the underlying majority in the all-party committee is in favour of equitable funding, i.e. funding that would not be equal between Yes and No but would involve proportionality with respect to political parties or groups within the Oireachtas.
The advantage of the equitable approach is that it takes account of the different and complementary roles of political parties, public representatives, interest groups and ad hoc groups of citizens in the referendum process. Above all, it takes account, as the committee's report puts it, of the essential need for the citizens to be informed and of the often inchoate nature of public opinion.
However, as the committee noted, such an approach would not be consistent with the McKenna judgment. but then, as former chief justice Tom O'Higgins argued recently in these pages (Irish Times opinion, November 19th), perhaps the time has come to review that decision. Any such review, or indeed any wider debate about how referendums should be conducted, will need to address the question of the place of the referendum in our political system.
If one thinks of the political system purely in terms of the three traditional powers or functions (legislative, executive and judicial), a referendum appears to be simply a minor variation on the principle of the separation of powers, the difference being that the people act as the legislators. In this view non-interference with the legislative role of the people appears to be the constitutional imperative.
It can be argued that the separation of powers model is fine when applied to relations between say the legislature and the judiciary but cannot be extended to encompass the role of the public in a referendum.
The public cannot be thought of as akin to a body of attentive and informed legislators ready, willing and able to make a considered decision on complex issues.
Evidence from recent referendums certainly contradicts such a conception. A more realistic picture would be of a group of individuals, many with limited interest, limited knowledge and limited time, who need to be stimulated to take an interest, who need to be informed about the issues and to be encouraged to participate.
Elected representatives and political parties have a special role to play in this process.
Moreover, it can be argued that, in an Article that has not figured in this debate, the Constitution implicitly recognises such a role. Article 27 deals with a Bill passed by the Oireachtas that is deemed to contain "a proposal of such national importance that the will of the people thereon ought to be ascertained". The Article goes on to stipulate that the will of the people may be ascertained either by means of a referendum or a resolution passed by a new Dβil subsequent to a general election.
This equation of a popular decision on a particular issue taken by referendum with a popular decision on the same issue taken by means of a general election implies that political parties and candidates for Dβil seats can play a constitutionally sanctioned role in putting an issue to the people for their decision.
If parties and candidates competing in a Dβil election can play a campaigning role in ascertaining the will of the people under Article 27, consistency of interpretation implies that they have a similarly constitutionally sanctioned role in arguing for or against a proposal to change the Constitution that is being put to the people for their decision.
An effective referendum process requires public funding. The underlying view of the Oireachtas committee that such funding should be equitable rather than equal is right. In the long run, however, the issue should tackled, either by way a review of the issues by the Supreme Court or by way of a referendum about referendums.
Prof Sinnott is director of the public opinion and political behaviour research programme in the Institute for the study of Social Change at University college, Dublin