The fact that more than a third of those who voted against the Amsterdam Treaty told exit pollsters that they had done so because they did not understand it has, rightly, been the subject of some debate.
In the first place this tells us that the opposition to that treaty was a good deal less strong than appeared to be the case.
The Yes vote was seven percentage points lower than in the case of the Maastricht Treaty six years ago. But if those who complained about not understanding this treaty had felt themselves to be adequately informed, and if they had then voted in the same ratio as the rest of the population, the majority in favour of the treaty would have been 71 per cent, a figure which in the case of the Northern vote has been regarded as overwhelming. Such a figure would have been slightly higher than in the referendums on the Single European Act and the Maastricht Treaty.
The second point to make is that the ploy used by the opponents of the treaty, telling the electorate to vote against the treaty if they did not understand it, appears to have been remarkably successful, for it seems to have added 50 per cent to the number of opponents of the treaty. The appeal to fear of the unknown is a powerful one.
How valid is the complaint that not enough was done to explain the treaty to the public?
I think the real problem lies elsewhere because a substantial information campaign was in fact mounted.
The Referendum Commission seems to have spent about £1 million of its resources on its Amsterdam Treaty educational campaign on television and in the papers.
For its part the Irish Council of the European Movement organised some 60 well-advertised meetings around the State, at which all parties were invited to attend and contribute, including the Green Party, which alone among Dail groups opposed the treaty. I spoke at half-a-dozen of these meetings myself. But the audiences that these meetings attracted were fairly small. Indeed in the early stages the numbers attending failed to reach double figures in several venues, and even in the later stages of the campaign I addressed groups of no more than 45 to 60 people in various provincial centres. That compares with audiences of 300-400 even in quite small centres during the first EC referendum in 1972. The truth is that people were not greatly interested in the Amsterdam Treaty because it involved no single issue of major importance on to which people could latch. They didn't particularly want to be informed.
The Single European Act had been about eliminating all the remaining obstacles to trade, an issue that people could grapple with, whether for or against.
The Maastricht Treaty had also centred on one major issue: the idea of a single currency. Admittedly this was a more complex concept, and was not always well handled by those seeking to explain it. But it attracted a good deal of interest.
In that referendum I addressed audiences of about 150 in pubs in Phibsborough and Crumlin, and had the impression that in each case an initially sceptical audience came around to favour the idea, principally because they saw the advantage of lower interest rates generating more economic growth.
At another large meeting of trade unionists on that Maastricht Treaty, where those attending were polled as they came in and again as they left, I recollect that an incoming majority about two-thirds against the treaty was converted during the meeting into a favourable majority of much the same size.
The absence of any focal point of interest in the Amsterdam Treaty affected both the degree of interest it aroused, and also, I believe, the outcome. I found that an honest account of the contents of the treaty involved explaining 12 distinct issues, whereas opponents could concentrate their fire almost exclusively upon the single issue of defence, which they vigorously, but successfully, misrepresented.
The truth is that while a referendum is a valid and democratically necessary method of deciding single issues affecting the Constitution, it is a singularly unsuitable and ineffective way of ratifying complex treaties, especially ones that are drafted as amendments to other treaties.
It was never intended that such a ratification method would be employed. When in opposition in 1972 Fine Gael proposed, and the Fianna Fail government accepted, a provision limiting the force of the amendment being put to the people to current or future developments necessitated by the original treaties, we expected this to apply only to such issues as a decision to involve us in a military alliance.
No one then foresaw the extraordinary decision of the Supreme Court 15 years later that a clause of the Single European Act, which provided for a national veto on European foreign policy decisions, breached our sovereignty, and therefore required the authority of a constitutional referendum. Since then governments have automatically played safe by referring such treaties to the people, regardless of what they contain.
This was fair enough in the case of the Maastricht Treaty, which involved a significant sharing of our sovereignty over monetary policy with other states, but it is very hard to see what in the Amsterdam Treaty could have been deemed significant enough to require the sanction of the electorate.
This interpretation of our Constitution, which seems to require referendums on complex amending treaties such as Amsterdam, carries serious dangers for our State. For there is clearly some risk that groups hostile to active Irish involvement in Europe might, for example, persuade the electorate to reject a future treaty making provision for institutional changes required by enlargement of the Community.
For enlargement is bound to have some negative effect on us, such as a dilution of EU transfers to this State, or a marginal reduction of our current overrepresentation in the European Parliament. (As a result of a deal negotiated by Liam Cosgrave and myself 22 years ago, although we have only 1 per cent of the Community's population we are represented by MEPs constituting 2.5 per cent of its membership).
If opponents of our EC membership succeeded in persuading our electorate to block the admission of six new member-states by voting against an Enlargement Treaty, the negative impact of such an action upon us would be incalculable.
How we can avoid this risk is not easy to say. But one way might be for future amending treaties to be ratified by the Dail, but then referred by the President at her discretion to the Supreme Court, which could either clear the whole treaty as constitutional or else identify specific points in it that would require constitutional approval by the electorate by way of referendum.
The Supreme Court might not relish being landed with the mammoth job of vetting whole treaties, but at least this would give the electorate a manageable task to perform, by relieving them of the impossible job of vetting complex legal texts such as treaties that amend other treaties.
The issue of the implementation of the McKenna and Coughlin judgments is quite a quite distinct matter.
There may be no easy solution to the "overkill" aspect of these provisions. But the Referendum Commission should certainly be relieved of the invidious task of inventing phoney arguments and of being required to contradict its own statements.
It might instead be given the twin tasks of deciding what in any particular case would be an equitable (the term used by the Supreme Court), as distinct from an equal, allocation of State funds to those supporting or opposing an amendment, and what would be an appropriate allocation of "uncontested" political party broadcasts.
Suggestions that the Constitution be amended to nullify these judgments seem to me ill-conceived. Such an approach could invite a stinging rebuke by the electorate which might not be disposed easily to return to politicians the right they have secured to decide these issues for themselves.