The Irish and European political classes clearly received a considerable shock when the Irish voted No to Nice in June 2001. Dublin decided almost immediately to prepare the ground for a new referendum. Indeed, the determination of the political class as a whole to force Nice through is evidenced by the fact that both of the main political parties, Fianna Fail and Fine Gael, campaigned for a yes vote. Like political classes across Europe, the desire for unaccountable power in Ireland is great enough to unite all sides in pressing for ever close European integration.
The preparations for the second referendum were minutely laid. The first change was radically to overhaul the role of the Referendum Commission which is responsible for running referendums in Ireland. That Commission had been created in 1998, following an appeal to the country’s Supreme Court in 1995 by the Green Party Member of the European Parliament, Patricia McKenna. She argued successfully that it was anti-constitutional for the government to use taxpayers’ money to support one side of the argument in a referendum campaign, as it had done in the 1986 referendum on the Single European Act, when the Government Information Office published leaflets entitled “10 Reasons for voting Yes”. Similarly, in the 1992 campaign on the Maastricht treaty – the Irish referendum was one of the factors in overturning the No vote in Denmark in June – the Irish government hired a firm of publicity consultants to run the Yes campaign.
Following Mrs McKenna’s appeal, a follow-up case was brought in 2000 by the head of the euro-critical National Platform, Professor Anthony Coughlan. Coughlan said that it was equally anti-constitutional to attribute air time on RTE, the Irish state radio and television company, according to party political representation in the Daíl, the Irish parliament. He argued that this was unfair because all the political parties were on the same side, while a referendum was intended precisely to appeal to the people directly, over the heads of the politicians. The Supreme Court upheld the Coughlan appeal as a coda to the McKenna one.
The Referendum Commission was therefore created in 1998 with two principal roles: first, to say what the referendum was about and, second, to explain the arguments for and against the proposition. The Commission fulfilled this role very professionally. For the first Nice referendum, it solicited arguments from the public, boiled them down into the salient points, and then placed large two-page advertisements in the press outlining the arguments on both sides. Its neutrality on this and other matters was such that it attracted considerable opprobrium from the political class when it indicated the arguments against the so-called “Good Friday Agreement” on Northern Ireland, on which a referendum was held simultaneously in the Republic and in North Ireland in 1998.
Incidentally, the discernment of the Irish population was clear on that occasion, because the referendum on the Amsterdam treaty was held on the same day as the one on the Good Friday agreement. Whereas the Good Friday agreement was approved by a massive majority (96% Yes to 4% No) the Amsterdam treaty was passed by a much smaller margin (62% Yes to 38% No).
In the first Nice referendum in 2001, a total of IR£500,000 was spent on demonstrating the arguments on both sides. This meant that little private money was spent on the campaign.
It was therefore of the greatest possible political significance that this role of presenting both sides of the argument was removed from the Referendum Commission after the first Nice referendum. The manner in which this was done, moreover, was deeply suspicious. A bill was presented to the Irish Parliament on the day before it rose for the Christmas recess in 2001.[1]
This bill made its way through all three readings in the Daíl, and received approval from the Senate, all in one day. Because this happened around Christmas, this extraordinary piece of political manipulation received little attention at the time. But it was to prove decisive in the way the second Nice referendum campaign was conducted. Private money poured into the Yes campaign, principally from big business and the establishment political parties. It was thus able to outspend the No campaign by anything between 10 and 20 times. Since the latter campaign was citizen-based, it is quite demonstrably the case that this change in the role of the Referendum Commission has deeply damaged the operation of direct democracy in the Irish Republic.
BHHRG interviewed Tom Morgan, Secretary of the Referendum Commission, to discuss the way in which these changes had affected the conduct of the campaign. According to the terms of the original 1998 statute, the Referendum Commission is not a standing body: it is convoked by ministerial order for each individual referendum and each time a referendum bill is passed. Each time it is created, a new Chairman is appointed by the Irish Chief Justice. He is usually a former judge on the Supreme Court or a serving or former High Court judge. The other four members are appointed ex officio: they are the Ombudsman, the Comptroller and Auditor General, the Clerk of the Daíl and the Clerk of the Senate.[2]
The fact that the Commission is brought into being for each referendum presents very considerable logistical problems for the officials in the Department of the Environment and the Ombudsman’s office (like Mr. Morgan) who are seconded to it: they often have to set up the body and fulfil its functions at very short notice.
As a civil servant, Mr. Morgan’s role, like that of his superiors, is not to say what he thinks the law should be. For instance, the Chairman of the present Commission, Mr. Justice Tom Finlay, said on one occasion that he would express neither joy nor regret at the change in the Commission’s role[3]
Consequently, in his meetings with BHHRG, Mr. Morgan kept scrupulously to the neutrality which his job requires. He did make the point, however, that the removal of the Commission’s role in presenting both sides of the argument made its remaining role, that of informing the public about the issues involved, much more difficult to achieve. For instance, campaigners for a Yes insisted that ratification of the Nice Treaty was necessary for the EU to admit 10 new member states. But the Commission felt that it was impossible to say whether indeed enlargement was conditional upon Nice. “The only thing the Commission could say with certainty was that it was uncertain,” Mr. Morgan told BHHRG. In other words, if the Commission had retained its role of presenting both sides of the argument, it would have been able to fulfil its role of informing the public more fully than it is in fact the case. The reform, in other words, has damaged the democratic process considerably.
In “compensation” for removing its role of putting both sides of the argument, the government gave the Referendum Commission a new role of encouraging people to vote. It is clear that this was done with the explicit aim of influencing the result. One of the reasons why the No won in the 2001 referendum was that the turn-out was low. (Oddly enough, lower turnouts in British elections to the European Parliament are never admitted as a reason for invalidating those polls. The turnout in the recent legislative elections in the United States was well below 40%, but that poll has been widely welcomed in the media as giving the Bush administration “a mandate for war”.) On the face of it, there would appear to be nothing wrong with encouraging people to vote. But BHHRG has enough experience of clearly politicised movements which are also ostensibly devoted to this goal – the “Rock the Vote” groups in Slovakia in 1998 and Croatia in 2000 come to mind – to be highly suspicious of such campaigns. It was indeed highly significant that the Yes campaign employed students, on the day of the poll, to encourage their colleagues to go out and vote: it is obvious that they were paid to encourage people to vote Yes. BHHRG observed such canvassing – for a Yes vote – in the quadrangle of Trinity College, Dublin, on the day before the referendum. Students campaigners were also out in force in University College. The Referendum Commission spent some €800,000 on this alone - which seems an awful lot of money to spend on a single fly-leaf which the students distributed.
It is significant that Ireland’s Freedom of Information Act does not cover the Referendum Commission. Members of the No campaign have asked to see the minutes of the meetings between the Commission and the publicity firm, McConnell’s, which the Commission paid to produce the booklet which was distributed to all households in the country. They asked for this because they objected to some of the images on that booklet: the European Union is shown as a mother holding children in her arms; the successive EU treaties are depicted with little wings, as if they were angels; and the euro is depicted as the sun shining over all major European countries except Britain, which may also be a subliminal message that closer European integration liberates Ireland from the influence of London. But the National Platform has been told that it cannot have access to these documents, since the Referendum Commission is one of the few public bodies in the Republic of Ireland which is not covered by the terms of the Freedom of Information Act.
The question formulated
Another key difference between the two referendum campaigns was in the nature of the question put to the voters. Here again, the European Union has shown that it is learning from the regrettable Danish experience, when it overruled the result of the first referendum on the Maastricht treaty. On that occasion, a statement was issued by the EU governments subsequent to the first referendum, in which certain elements contained in the Maastricht treaty were re-stated. These included things like the Danish opt-outs from Common Foreign and Security Policy. Their re-statement was, however, legally otiose, since the Danes voted on the same text twice.
A variation of this same these was used for the second Irish referendum on Nice. A declaration on Irish neutrality was obtained at the Seville summit in the June 2002. Subsequent to this, a third question was added in the second referendum to the two which has been in the original Nice vote. The first two were the forms of words chosen for implementing the constitutional changes necessary for Ireland’s ratification of the Nice Treaty; the third, new sentence was as follows: “The State shall not adopt a decision taken by the European Council to establish a common defence pursuant to Article 1.2 of the Treaty referred to in subsection 7 of this section where that common defence would include the State.”
This was an extremely clever and cynical move on the part of the government. Voters had to vote Yes or No to all three propositions: there were no separate votes on the individual elements of the poll. The purpose of this new third sentence was ostensibly to underline the fact that the Nice Treaty did not commit Ireland to joining an EU defence alliance. This would have abrogated Ireland’s constitutional neutrality. The addition of the third sentence meant that a No vote to Nice seemed to be voting against a safeguard of Irish neutrality. In reality, the third sentence was a bogus safeguard: as the No camp stated, the third sentence was otiose because any move by Ireland to joining an EU defence pact would inevitably have required a new referendum anyway. (Paradoxically, Ireland’s involvement in Partnership for Peace and even EU-led “peacekeeping operations” were not held to infringe neutrality because they are offensive rather than defensive.) By inserting this third sentence, therefore, the Yes campaign was able to claim that only a Yes vote would guarantee Irish neutrality. They managed to put the No camp into the position of being the ones supporting the abandonment of neutrality!
It was regrettable that the Referendum Commission seemed to give support to this manoeuvre when it stated in its supposedly neutral advertisements that “If the majority vote No then there will be no specific constitutional provision preventing Ireland from joining an EU common defence.” On the contrary, the constitution’s own existing commitment to neutrality would prevent such an outcome - with or without the third proposition added for the second Nice referendum.
[1]“Referendum bill ‘a gross abuse of power’”, by Marie O’Halloran, Irish Times, 15th December 2001,
[2]http://www.environ.ie/elections/reflef.html,
[3] That quotation is not reported in the following account of a press conference given by the Commission chairman. But readers might like to consult this page and form their own judgement about the neutrality of the Commission in the second Nice campaign.
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