Before the landmark Crotty vs the Taoiseach judgement in 1987, the Irish Constitution had amassed nine amendments in the previous fifty years of its existence. In the twenty five years since it has scored another seventeen. Some of those were responses to the massive social changes the country has undergone in those years.
Three originate from reversals of previously negative decisions over the very sorts of treaties Anthony Crotty originally hoped to stymie, and a fourth though approved is still awaiting enactment. Every other European treaty has failed to fall at the hurdle. In other words, with regard to Foreign Policy in this recursive reference to the people, the government always win.
I recently heard of a study of a number of otherwise similar Swiss cantons, which found a rate of happiness marginally higher in those where the relied more heavily on plebiscites than those which didn’t. It doesn’t mean that referenda make for a happier demos, but perhaps people are happier where their sense of wider agency is tangible than where they are largely ignored.
The question is what sort of agency do referenda offer? Paul Evans has previously warned of the dangers of simplification posed by the Referendum mechanism. It does make some sense at the constitutional level, as in the Scottish situation where there is anything up to three years to frame the problem and the more thoroughly explore what the options mean on a human scale:
Paul notes quite a long list of problems:
- Time and time again, the public don’t answer the question they’ve been asked. They use one question to send an unrelated message to an unpopular government.
- Referendums privilege the weight of opinion (in numbers) over the weight of arguments.
- By making policy questions explicit, as Cass Sunstein illustrates at length, youpolarise the arguments instead of promoting a rich debate and useful complex legislative responses.
- People who don’t have the capacity to engage in the debate on a given issue are effectively disenfranchised – especially when the referendum makes decisions that could be taken by elected representatives who would deliberate on everyone’s behalf and defend their decisions at subsequent elections. The low-paid, people who work long hours, people with enough problems of their own, people who don’t have the confidence to express their views or the opportunity to discuss them become unrepresented
- In referendums, power is exercised without responsibility. No-one is under any pressure to obey The General Will or to ensure that a policy is actually in the long-term public interest.
That last is one of the bugbears of many in the constitutional reform lobby, though avoiding the calling referenda is by no means a guarantee that long term policies are intelligently set. A few years back Gavin Barrett wrote on the ongoing controversy that this habit of calling referenda on any piece of European legislation has become a habit than acting in accordance with precedent:
The responsibility for Ireland’s unique record in holding referendums on European issues is usually attributed to the 1987 Supreme Court decision in Crotty v. An Taoiseach. The majority ruling in Crotty gave an extraordinarily broad (and, it must be said, extraordinarily unconvincing) interpretation of the description in Article 5 of the Constitution of Ireland as a ‘sovereign’ state. Although there is far more to Crotty than this, it was on the basis of this interpretation that the Court held ratification of the rather innocuous foreign policy provisions of the 1986 Single European Act unconstitutional, effectively forcing the then Government to hold a referendum before it could ratify it.
Crotty started a trend. Since Crotty, wary Irish Governments have unvaryingly made every major EU Treaty the subject of a constitutional amendment (and referendum), thus fireproofing each successive Treaty’s ratification and incorporation against any constitutional challenge. However, notwithstanding the almost monotonous regularity with which Irish referendums on European Treaties have subsequently been held (with no less than six in the last 21 years), the supposed legal requirement to have a referendum post-Crotty is much less cut and dried than is sometimes thought. It is far from clear that the application of Crotty would invalidate the ratification even of the entirety of the Lisbon Treaty without a referendum. Current suggestions to ratify only part of the Lisbon Treaty without a referendum would be even less likely to fall foul of Constitutional censure. It is even unclear whether the present Supreme Court would even follow all of its own reasoning in Crotty (at least insofar as its finding concerning sovereignty is concerned).
Sovereignty is probably the most undercooked dish in the Irish polity. If there is a problem with this recent convention of submitting anything remotely sombre regarding the Irish state’s relationship to the European Union to the will the of the people is fine. But what use is it if every time they are asked again they just change their mind?
In research, if you get confused and messy answers, the first place you look is to the question you asked. The major questions at the centre of these techno referendums are nearly always obscured by reference to an inscrutable international treaty, that very few people in the country actually understand. A battle of the white coated experts ensues.
So that every time someone shouts: “Ref-er-end-um!” the cynicism deepens. Something has to give.
Mick is founding editor of Slugger. He has written papers on the impacts of the Internet on politics and the wider media and is a regular guest and speaking events across Ireland, the UK and Europe. Twitter: @MickFealty