Appreciating the Constitution

The Government Site was replaced with a copy
of the wording of the proposed amendment after the ruling.

The decision of the Supreme Court today that, as the Irish Times reported, ""extensive passages" in the Government's information booklet and on its website about Saturday's vote were in breach of rules designed to ensure a fair, equal and impartial playing field in referendum debates," needs to be understood more fully.  There are issues of constitutional law, separation of powers, and fundamental democratic norms that need to be addressed.  The interview given by Justice Minister Alan Shatter on the News at One today was unapologetic and aggressive towards the ruling of the court; indeed it was disrespectful.  This in turn causes further cause for concern.  The positive representations of government ministers in relation to the proposed amendment, as an exercise of executive office, are an issue.  And finally, the McKenna judgement along with the test for "material impact" from the 1994 Referendum Act are problematic.

Where to begin?  Well, first, thank you to Mark McCrystal.  His persistence in chasing the government on this point has resulted in an important ruling, and a reinforcement of the McKenna position.  Essentially, the government had spend taxpayer's money to advance the cause of the 'yes' campaign.  It was possibly inadvertent; it is unlikely to have been deliberate.  There has probably been a degree of laziness on the part of lawmakers in structuring this amendment, given the broad consensus on the necessity for the amendment to proceed.  Shatter's contention that every effort was made to avoid falling foul of McKenna (which prohibited the spending of public money on promoting one side of a referendum debate) is probably true, even if those efforts clearly fell short.

The first concern relates to Shatter's position on the Supreme Court ruling.  He essentially treated it with disdain, inferring that it meant nothing (at least until a month's time, when the full judgement is expected), and repeatedly referring back to the High Court ruling that is now irrelevant and wrong.  Shatter is being deliberately obtuse here - he is a capable lawyer and the Minister for Justice.  He knows all of that.  Not only can it therefore be construed that he is contemptible of the judgement of the Supreme Court, but that contempt is elevated by his office.  This is - if there is such a thing - grand contempt, which if we truly appreciated our constitution would provoke a constitutional crisis.  This has echoes of his predecessor in the Justice Ministry Michael McDowell's flagrant disregard for the Separation of Powers in nailing Frank Connolly in 2005.

The second concern related to the Executive's insistent and unapologetic promotion of the Yes campaign.  Each member of the cabinet - including the Taoiseach - are invested with office by the State, and those offices of the State transcend the populace.  They cannot pretend that their promotion of the campaign is done in a private capacity - their platform is provided by the State.  They should therefore remain neutral, rather than compromise the integrity of the referendum process by leveraging their disproportionate influence to influence the outcome.  This has been an issue in successive referenda, and seems to be well supported by the political establishment, for whom it is self-serving.

The third concern is around two positions of the Supreme Court - the first being that of the McKenna judgement in 1995, and the second relates to the interpretation of 'material impact' in Des Hannifin's case after the Divorce Referendum in 1996.  In the first instance, the government will use public money - as will the Referendum Commission - in presenting a choice to the people.  Behavioural economics has long recognised that there is no such thing as a free choice, that no choice is made, or presented, in a vacuum   In particular, Thaler and Sunstein have written on this, but lots of others as well.  Essentially, the government is constructing a choice architecture, and it is impossible to have an unbiased or impartial architecture. Therefore, for example, the Supreme Court agreed that the photographs of Children (and not families) were inappropriate on the Government literature.  Calling it 'The Children Referendum' instead of 'The Children's Rights Referendum', or 'The Forced Adoption Referendum' - none of which is incorrect - in itself influences the choice.  Such an impossible position!  The only answer for the government is to say nothing at all - which would concurrently address my second concern - but that is unlikely to happen.  And it doesn't address the challenges that the referendum commission is likely to face, although best efforts for an impartial organisation like that may be sufficient.  No one's perfect, after all.  In terms of naming, the Americans use numbered propositions to avoid this (i.e. vote on Proposition 25 etc.).  We should adopt that.

The court's interpretation of 'material impact' relates to this: the Referendum Act of 1994 essentially allows for the Supreme Court to set aside a referendum result if it can be proven that illegal or improper activity caused a result to be materially impacted.  However, in the Hanafin case, the Government had spent taxpayer's money to support the amendment, and the result was wafer thin - 9,000 votes from 1.6m cast, in favour of the amendment.  The court essentially ruled that it was nigh on impossible to prove material impact.  It is unlikely that another referendum will be so close, and if that prior breach - without at that time having the McKenna guidelines - with that small a margin could not convince the court, then it is unlikely that there are reasonable circumstances within which the test could ever be met.

A final point I'll make - the Constitution currently "...recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights..."  This is in Article 41.1.1, immediately before the newly proposed 42A.  Not only is the integrity of the family as the natural, primary, fundamental unit compromised by the extension of children's rights, but it is an entity that itself has rights.  Those rights may well be tested as these provisions come together in some hard cases.

We do not appreciate our constitution.  We amend it frequently, and far too easily.  Constitutional amendments are seen as mechanisms to get around legal issues, rather than progressive steps in developing our country.  Even this amendment has been promoted as a mechanism to get around the (implicitly) unreasonable interpretation of the family law courts in adoption cases.  It is not being promoted as an beneficial enhancement of our rights architecture, nor a recognition of some changed or evolved moral sense.  That is wrong.  And the behaviour of government in its approach to referenda - spending money to promote their agenda, or re-running referenda to get the right result, betrays an immaturity of state, and a fundamental lack of intellectual rigour in the administration of Ireland.