Bruce Arnold

Critic of Public Affairs, writing about art, theatre, music and politics

Failure in abortion legislation shows futility of referenda

It is two years, almost to the day, since the full blast of financial and sovereignty crisis hit Ireland with Patrick Honohan's RTE broadcast announcing the bailout on November 18, 2010.

We were in deep political crisis. Fianna Fail had realised they could not fight an election with Cowen as leader. He was discredited, the party divided.

Enda Kenny's moment had arrived. A campaign strategy of credible-enough promises and a sense of purpose impressed voters.

There were doubters and sceptics, but the monumental capacity of Fianna Fail to wreck themselves on the debris of their catastrophic handling of power brought change. None welcomed this more than I did.

The promises grew longer in the tooth and more compromised, however. We did not solve the banking crisis, we tinkered with cuts, leaving the big ones to fester, being needlessly punitive with the small ones.

What we did not want or need was a vapid gesture towards children, ill-written and illogical, supported by a devious use of power to distort the constitutional referendum process.

Those who govern us were bold and confident in what they appeared to be doing, then made a botched mess of it. It now appears that the Attorney General gave the correct advice against the Government's crass and biased intervention in a campaign that was not really worth pursuing for reasons argued along the following lines: that our politicians do not have the stomach for courageous handling of difficult issues over human rights. We do it badly, and this was evident in the confusion of two distinct issues – children's rights and adoption – to be put before the people in archaic and misleading language.

No one could have predicted that the unstable purposes of the Government in this ill-conceived issue would be so devastatingly damaged, in retrospect, by the much more serious failures over abortion legislation highlighted by the tragic death of Savita Halappanavar.

What, however, is clear and terrifying is the gross negligence of our politicians over the failure to legislate in the 20 years since the Supreme Court opened the door to the termination of the pregnancy of a woman whose life is threatened.

As Liz McManus pointed out in this paper last week, the constitutional and legislative imperatives were there but no one acted on them.

The whole history of destructive misuse of the constitutional referendum process, bias in its presentation, deception over its meaning, and one-sided loading of the intent, has been a disgraceful product of succeeding Fianna Fail administrations and now of the present government.

Politicians always interfered in referendum campaigns. In 1987, Charles Haughey spent public money in a one-sided campaign bringing in the Single European Act. He bought newspaper and billboard advertisements setting out 'Ten Reasons for Voting Yes'. In the 1992 Maastricht Treaty referendum on the adoption of the euro, the Albert Reynolds-led government plastered the country with publicly-financed billboards urging a Yes vote. Patricia McKenna then fought her case through two actions and won the rights of Irish citizens to fairness, equality and democracy in referendums.

This caused the Bruton-led government to withdraw a state-funded Yes-vote campaign. Anthony Coughlan, following a failed complaint to the Broadcasting Complaints Commission, sought a High Court judicial review on lack of balance in referendum broadcasting coverage.

In the subsequent High Court trial, Mr Justice Paul Carney found that RTE had breached its obligations and that there should be broad equality in the broadcast treatment of both sides in referendums. Then came the Referendum Commission, with the potential for making Ireland a pioneer in the democratic political education of its citizens. The politicians proceeded to wreck this by amending the 1998 Referendum Act and taking away its principle of balance and fairness.

When the No side won in the first Nice Treaty referendum in June 2001, the Ahern government removed from the Referendum Commission the objective of being balanced and fair and of fostering and facilitating public discussion of the issues.

So why did Enda Kenny and his Government disgrace themselves and their constitutional probity as they have done over the children's referendum?

And what hope does it give us that they are still divided now, over how they will deal – after 20 years – with the situation that almost certainly contributed to the death of Savita Halappanavar? One's faith in them has been seriously damaged.