First, I should declare that I am a Yes voter and have campaigned for the right to gay marriage for more than 25 years.
However, I do not dismiss all the issues raised by those on the No side as misleading, inaccurate or without legal base. Noel Whelan recently stated: “We always expected that the No campaign would go negative and go nasty at some stage.” But to be fair, considering the homophobic charge being levied at those who are voting No, there is negativity and nastiness on both sides.
While I accept that there are always two sides to any debate, the surrogacy question is, in my opinion, being used unfairly in this campaign. Surrogacy does not relate specifically to gay couples. The concerns voiced by those on the Yes side regarding this issue demonstrate why there is a need for an independent neutral body that can provide voters with accurate and reliable information during the course of a referendum campaign.
Readers may think such a body already exists. However, this is not quite the case because the Referendum Commission had its original powers dramatically reduced by Dáil Éireann in 2001 and under its current remit is extremely limited in what it can do.
Principle of strict neutrality
If the commission was to try to clarify the surrogacy issue it would run a real risk of a successful legal challenge. In the (Pearse) Doherty challenge to the commission during the fiscal treaty referendum, the High Court established that the commission had a right to clarify issues during the course of a campaign, but this right was limited. The court made it clear that since the commission was publicly funded it could not deviate from the principle of strict neutrality, as this would breach the constitutional principle of equality in the referendum process established by the courts.
The court also held that the commission’s statements must, by law, be fair and nonpartisan and that the courts had jurisdiction to review such statements if this statutory requirement to be fair and neutral was breached. It is regrettable that despite a number of important court rulings in recent years regarding the right to a fair referendum campaign, the State’s referendum process still leaves a lot to be desired.
As the applicant in the seminal 1995 Supreme Court decision in McKenna v An Taoiseach I have a keen interest in this matter. In that case the court established a constitutional right to a fair referendum campaign and ruled that the use of public money by government to support one side in a referendum was unconstitutional.
Following this decision the then minister for the environment, Noel Dempsey, set up the Referendum Commission under the Referendum Act 1998 and gave the commission three principal functions: (a) to prepare and publicise a statement or statements informing citizens what the proposal to change the Constitution entailed; (b) to prepare and publicise a statement or statements setting out the arguments for and against the proposal, based on submissions solicited from members of the public; (c) to foster and facilitate public debate and discussion on the proposal.
This was a truly democratic and progressive initiative by Mr Dempsey that reflected a clear understanding of the principle of equality and fairness in the referendum process.
However, in 2001, without any clear explanation or public debate, our politicians radically reduced the commission’s role and removed its two key functions of providing the Yes and No arguments and of fostering debate. It’s worth noting that Fine Gael and Labour both opposed this change.
If the commission was still allowed receive public submissions and prepare and publish statements setting out the arguments for and against, it could easily clarify the surrogacy issue without any fear of legal challenge.
The reality is that in the course of a referendum campaign groups and political parties on both sides can and do spin the argument whichever way they choose using all sorts of extraneous statements, claims and counterclaims which have little or nothing to do with the text of the referendum proposition.
Specialist body
Mr Justice Gerard Hogan pointed out in the Doherty case that it was against this background that the commission had been established: “It was considered desirable that a specialist body would be established which would seek impartially to ascertain the true facts (insofar as they could be ascertained) and to communicate general information to the public.”
If the commission still had the responsibility for collecting and assessing all the arguments for and against a proposed constitutional amendment and presenting them in a fair and balanced way, it would reduce the problems posed by extravagant claims and would help voters make an informed decision.
Conflicting conclusions would be noticeable and where errors of fact exist they could be rectified.
In the Doherty case Mr Justice Hogan also pointed out that some proposed constitutional amendments might lead to unforeseen consequences and referred to the referendum to ratify the Belfast Agreement, as this led to a later referendum on citizenship. It is worth pointing out that this consequence was foreseen and highlighted at the time by the commission’s Yes/No arguments and demonstrates the value of the Yes/No function.
The time for reinstating the commission’s original role and actually expanding its remit is long overdue.
Voters have a right to impartial, fair and accurate facts that focus on the referendum proposition itself and how the Constitution is going to be affected, rather than on irrelevancies.
Australia, which has perhaps the world’s longest established legislative rules on equality in referendums, requires by law that pamphlets containing the arguments for and against a constitutional amendment be delivered to every household well in advance of the vote.
Patricia McKenna is a former MEP and is responsible for the successful 1995 Supreme Court challenge to government use of public funds to secure a Yes vote in referendums, which established the “McKenna principles”.