The Bill to bring the conduct of referendums into line with the Supreme Court's McKenna judgment of November 1995 has at last been published. The court declared it unconstitutional for the Government to spend public monies advocating a particular result in any such contest. This Bill proposes a Referendum Commission to prepare and disseminate information and to foster, promote and facilitate debate in a fair manner. The Commission is made necessary by the forthcoming referendum on the Amsterdam Treaty but it will be used to regulate all of them, notably any referendum on the outcome of the Northern Ireland peace process.
The Bill is an important and welcome milestone in Ireland's democratic development. In response to the Supreme Court's emphasis on the need for equality of access to public funding among the parties to a referendum debate it uses fairness as a general criterion for the Commission's work. The court based its argument on the fact that "the Government is . . . a creature of the Constitution", that "the role of the People in amending the Constitution cannot be overemphasised", and that "the use by the Government of public funds . . . infringes the concept of equality which is fundamental to the democratic nature of the State".
The judgment established conclusively that popular sovereignty, not the Government's preference, is the cardinal principle of constitutional change. This Bill goes a good measure of the way to recognising this reality, by appointing impartial officers of the State to prepare and disseminate information and facilitate debate. A substantial budget of £2.5 million will be made available for the referendum on the Amsterdam Treaty, the text of which was published yesterday. Advertisements, leafleting and posting the arguments directly to voters will all contribute substantially to public understanding of the relevant issues.
But by stopping short of enabling money to be allocated directly to campaigning groups the Government opens itself to the criticism that the debate will not be carried convincingly to the electorate. It would defeat the purpose of this Bill were the publicity and arguments put forward by the Referendum Commission to be cast in the dry legalism used during the recent referendum on cabinet confidentiality. There is no substitute for democratic debate in a referendum campaign. Several models used elsewhere should be examined further as this Bill is debated in the Oireachtas, and could be used to guide the commission's task. They include the Danish model, where money is channelled directly to Yes and No campaigners according to a formula that takes account of proportionate support as well as fair access to the media.
It will, of course, be open to political parties and campaigning groups to finance their own campaigns of advocacy and political argument. The McKenna judgment and this Bill are a healthy recognition that those involved must rely primarily on their own resources in organising for referendums. They can no longer assume that the mere fact of being in power confers privilege in terms of public resources, although it obviously does create a necessity to provide political leadership. Discussion will continue as to how this proposed commission will relate to public broadcasting, where there is an obligation to reflect both sides of an argument fairly.