The sheer dereliction of duty of the statutory Referendum Commission during the Lisbon Treaty referendum will assuredly be found shocking by future historians of our times.
The Oireachtas voted the Commission over ¤5 million to enable it do its job of informing citizens what the Lisbon referendum was about. Rarely can public money have been spent to such ill effect. The Commission spent ¤2.7 on media advertising. It paid An Post ¤1 million to deliver 2.2 million information handbooks to households. In the circumstances it was a democratic miracle that the majority of Irish voters rejected the proposal to amend the Irish Constitution. If the Commission had done the job it was statutorily required to do, the No-side majority would almost certainly have been much larger, for people would have learned of the constitutional revolution which Lisbon proposed, instead of being kept in ignorance of it.
The Commission Chairman and its members:
The Government appoints the chairman of the Referendum Commission on an ad hoc basis for every referendum. For Lisbon it chose High Court Justice Mr Iarfhlaith O’Neill as Commission chairman. It is a legitimate career expectation of High Court judges that they will be appointed to the Supreme Court or the European Court in Luxembourg. The chairman of the Referendum Commission during the Amsterdam Treaty and Nice Treaty referendums was retired Chief Justice T.A.Finlay, for whom prospects of judicial promotion were irrelevant.
The regular members of the Commission are the Clerk of the Dail (Mr Kieran Coughlan), the Clerk of the Seanad (Ms Deirdre Lane), the Ombudsman (Ms Emily O’Reilly) and the Comptroller and Auditor-General (Mr John Purcell).
Rubber-stamping its Chairman’s remarks instead of speaking with a collective voice:
The Referendum Commission is statutorily bound to act as a collectivity. The statements it issues should be approved by all its members. There is no provision in the Referendum Act which permits the Chairman to arrogate to himself the job of “clarifying” or explaining contentious issues of the referendum debate. Previous Referendum Commissions never attempted to do anything like that. Yet at two press conferences during the Lisbon referendum Mr Justice O’Neill took it upon himself to “clarify”, as he put it, contentious issues dealing with the implications of the Lisbon Treaty for such matters as company taxation, abortion, neutrality, a WTO veto etc., where political and legal judgements about what could happen if Lisbon was ratified were closely intertwined.
Judge O’Neill’s “clarifications” in each case lent heavily towards the Yes-side interpretation of these matters and were fulsomely welcomed by Government and other Yes-side spokesmen. Because of the impromptu nature of oral statements the other Commission members could not stand over everything said by Judge O’Neill on these occasions. They thereby failed in their duty to express at all times an agreed collective view. They must have been embarrassed when their Chairman was unable to answer a question on the Treaty at his second “clarificatory” press event.
On Tuesday 13 May Judge O’Neill made a clear error of fact when he stated on RTE that the Laval/Vaxholm judgement of the EU Court of Justice was given before and not after the Lisbon Treaty was signed. The implication of this was that this judgement had been taken into account by the signatories of the Treaty and there was therefore no case for rejecting the Treaty because its framers had not known of it. In fact this Court judgement was given five days after the Lisbon Treaty was signed, so that it could not have been taken into account or responded to by the signatory States. This was an important referendum issue for some No-side campaigners.
Mr Justice O’Neill’s mistake thus helped one side as against the other. Future Referendum Commissions should veto any attempts at such solo flights by their chairman and follow the sound procedures set out in previous referendums by retired Chief Justice Finlay.
Conflicts of interest on legal advice and public relations consultants:
These conflicts of interest might be overlooked if one could be satisfied that the Referendum Commission itself selected Murray Consultants and A&L Goodbody. Section 4 of the Referendum Act 1998 provides that the Referendum Commission may from time to time engage such consultants and advisers as it considers necessary or expedient for the performance of its functions, thereby clearly envisaging that any such consultants or advisors will be selected and appointed by the Referendum Commission itself.
The Government’s own E-tenders website, however, showed that the request for tender for ¤3.5 million of ‘Marketing, Communications and Project Management Consultancy services for the Referendum Commission’ was published on 19 February 2008, three weeks before the Referendum Commission was called into being on 6 March 2008. Disturbingly, the request for tender stated that tenders were to be submitted to the Department of Foreign Affairs, even though the holding of referendums and the establishment of the Referendum Commission is a matter for the Department of the Environment and Local Government. No explanation has been provided for the involvement of the Department of Foreign Affairs and no confirmation has been given that the choice of Murray Consultants was that of the Referendum Commission itself and not the Department of Foreign Affairs.
In relation to the selection of A&L Goodbody Solicitors as legal advisers to the Referendum Commission, there was not even a public tender process carried out, whether by the Referendum Commission itself or by any government department on its behalf. No information has been disclosed as to when A&L Goodbody Solicitors were selected, who selected them and indeed how they came to be selected.
Under the Referendum Act the Referendum Commission is required to furnish, within six months of the referendum, a report to the Minister for the Environment and Local Government on the carrying out of its functions. The Minister for the Environment and Local Government is to lay this report before the Dail. It is to be hoped that the serious questions relating to the appointment of the Commission’s legal advisers and PR people, and the validity of the tendering process, will be addressed in this report or else raised in the Dail.
The most sensible, effective and probably the cheapest way for the Referendum Commission to get legal advice on an EU Treaty if it needs that, is to hire two top-rank authorities on EU law, one who favours a Yes vote and the other who favours a No, and when they cannot agree on a matter of legal interpretation, the members of the Commission should make up their own minds. If the disagreement on interpretation persists among themselves, it should inform the public of that fact. This is the way in which the function of providing the public with accurate information on contentious issues is carried out by statutory bodies similar to the Referendum Commission elsewhere, for example in Denmark.
The Referendum Commission’s profound failure to carry out its statutory function of explaining the actual Constitutional Amendment and its text to Irish voters:
The poor quality of the legal advice adopted by the Referendum Commission is shown by the fact that the Commission substantially failed to carry out its statutory duty under the Referendum Act establishing it.
Irish referendums are a form of direct legislation in which citizens are legislating on a Bill to amend the Constitution and deciding whether to adopt or reject that Bill. In the case of the Lisbon Treaty, the proposed constitutional amendment was set out in the 28th Amendment of the Constitution Bill 2008.
To help Irish citizen-voters carry out their legislative task the Referendum Act imposes on the Referendum Commission the statutory obligation “to prepare a statement or statements containing a general explanation of the subject matter of the proposal (i.e. the proposal to amend the Constitution) and of the text thereof in the relevant Bill and any other information relating to those matters that the Commission considers appropriate“.
In view of this clear injunction from the Oireachtas it is surprising that neither the Referendum Commission’s web-site when it was first set up, nor the Handbook which it sent to all voters, gave the text of the proposal to amend the Irish Constitution, or even a summary of it. The text was put on the web-site following private representations by this organisation, but no change was made to the Handbook.
The Commission’s Handbook to Voters was significantly misleading - by omission - in that it stated, on Page 2: “You are being asked to decide whether or not to change the Constitution of Ireland to allow Ireland to ratify the Treaty of Lisbon.” But that was only part of the decision Irish voters were asked to make on 12 June 2008 in the proposed Constitutional Amendment.
The first sentence of the Constitutional Amendment which was set out in the 28th Amendment of the Constitution Bill made clear that the Amendment’s purpose was for the people to give permission to the State to ratify the Treaty of Lisbon AND to “be a member of the European Union established by virtue of that Treaty.”
However, the Referendum Commission’s explanatory material made no reference whatever to the latter part of this sentence, despite its obvious importance. Nor did it make any reference to the important sentence following, which would give the “laws, acts and measures” of the proposed new post-Lisbon European Union constitutional supremacy over the Irish Constitution and laws.
The following are the first two subsections – the centrally important ones – of the English text of the Constitutional Amendment which was put before Irish voters on 12 June 2008 and which was “the subject matter of the proposal and text thereof in the relevant Bill” that it was the statutory duty of the Referendum Commission to explain to citizens:
“10: The State may ratify the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon on the 13th day of December 2007, and may be a member of the European Union established by virtue of that Treaty.” (emphasis added)
11: No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by membership of the European Union referred to in subsection 10 of this section, or prevents laws enacted, acts done or measures adopted by the said European Union or by institutions thereof, or by bodies competent under the treaties referred to in this section, from having the force of law in the State.”
By omitting any reference in the explanatory material on its web-site or in its “Voters’ Handbook to “the European Union established by virtue of that Treaty”, viz. the Lisbon Treaty, the Referendum Commission failed fundamentally in its statutory duty of explaining to voters the profound constitutional difference between the European Union which would be established by the Lisbon Treaty and the European Union which we are currently members of and which was established by the 1993 Maastricht Treaty.
The Commission thus failed to inform voters that the legally new European Union which would be established by Lisbon would, unlike the present EU, have the constitutional form of a supranational Federation in which Ireland and the other EU Member States would have the constitutional status of regional or provincial states, and of which we would all be made real citizens for the first time, rather than our being just notional, symbolic or honorary EU “citizens” as at present.
One can only be a citizen of a State and all States must have citizens. As real citizens of the constitutionally new European Union to be established by Lisbon - and in contrast to the current EU which was established by the 1993 Maastricht Treaty – we would owe the post-Lisbon EU the normal citizens’ duty of obedience to its laws and loyalty to its authority over and above our obedience and loyalty to the Irish State and the Irish Constitution and laws.
Lisbon would amend the existing European Treaties to make EU citizenship “additional to” rather than “complementary“ to national citizenship. We would still retain our Irish national citizenship in the post-Lisbon Union, but our new dual citizenship post-Lisbon would not be citizenship of two different States, but rather of the federal and regional-provincial levels of one State, as is normal in such classical Federations as the USA, Federal Germany, Switzerland and Canada.
The Irish Constitution would remain in being after Lisbon – just as the various states of the Federal USA still retain their constitutions - but it would be subordinate to the EU Constitution in any case of conflict between the two. The rights and duties attaching to our new EU citizenship would also be superior to the rights and duties attaching to our national citizenship in any case of conflict, because of the primacy of EU law over national law in the post-Lisbon Union, as indicated in the second sentence of the proposed Constitutional Amendment quoted above.
The present EU is not a State and does not have legal personality such that it can have citizens as members. The “European Union established by virtue of the Lisbon Treaty“, which is referred to in the first and most important sentence of the 28th Amendment of the Constitution Bill, would be quite otherwise in this and other respects.
The result? . . . Concealment from the Irish people of the constitutional implications of what they were voting on – by the very body which was set up by the Oireachtas to inform them!
One can understand that the Government and Yes-side proponents would wish to keep these major constitutional changes which would be made by the Lisbon Treaty from the attention of Irish voters. But for the Referendum Commission to say nothing about them in its publicity material was a shocking delinquency. It could have had dire constitutional results for this and future generations of Irish people if Irish voters had voted Yes – not to speak of their implications for the peoples of Europe, who are being denied referendums on this profound political and constitutional change by private agreement among their Prime Ministers and Presidents at their October 2007 summit meeting.
Positively misleading statements in the Referendum Commission’s publicity material on the mode of appointment of European Commissioners under Lisbon:
The Lisbon Treaty provides that Ireland’s present right to “propose“ and decide its national Commissioner, and in effect to have that proposal accepted by the other Member States if their proposals are to be accepted by Ireland (Art. 214, current TEC), would be replaced by a right to make “suggestions“ regarding a name, for the incoming Commission President to decide (Art.17.7, amended TEU). Member States would thus lose their present right to decide who their national Commissioners would be. In other words, the Lisbon Treaty, if ratified, would replace a bottom-up process for appointing European Commissioners by a top-down one.
The Referendum Commission deliberately concealed this important change, which would undoubtedly alarm some voters. Its Handbook to Voters stated on page 5 that “At present, each Member State nominates one member of the Commission“ and then goes on to say: “The right to nominate a Commissioner will rotate among the Member States on an equal basis.”
The use of the same word “nominate” to describe the mode of appointment of European Commissioners pre-Lisbon and post-Lisbon was quite misleading and concealed from Irish voters the fact that the Lisbon Treaty proposes a significant change in the mode of appointing a fellow-national as an EU Commissioner.
This misleading nature of the phrase “right to nominate” was brought privately to the Referendum Commission’s attention by the undersigned when it first appeared on the Commission’s web-site, but that led to no change. The same misleading statement later appeared in the Referendum Commission’s Handbook posted to voters.