Bruce Arnold

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

We run our referendums in the way Al Capone handled his taxes

The courts have prevented the denial of the public's right to fairness and balance

THE most important referendum in the history of the State was in 1937, adopting our present Constitution. It was the start of a one-way journey, reshaping the State in legal, moral, social and political terms and creating rules by which we have lived ever since. The burden that resulted is a huge one further shaped and strengthened by subsequent referendums and by the courts, above all by the Supreme Court, which defines what was started by that first referendum. The Constitution set in place by referendum can only be changed by referendum.

The present state of the Constitution received detailed analysis by the Constitution Review Group under Dr Ken Whitaker's chairmanship, and a report was published in 1996. This document is rich in content and generally wise in judgment. Unfortunately, it has been largely, though not wholly, ignored by successive governments.

Last year the Government engaged in a development that has to be questioned for relevance. This is the 2012 Irish Constitutional Convention now sitting for one year. There are 100 members – a chairman, 29 deputies and senators, four Northern Ireland politicians and 66 randomly selected citizens. They will consider eight fairly marginal issues with no urgency.

The issues are: reducing the presidential term of office, reducing the voting age, letting citizens outside the State vote in presidential elections at Irish embassies, changing the Dail voting system, considering same-sex marriages, removing the offence of blasphemy and changing the way women participate in politics or have a role outside the home. They are hardly major issues. More serious matters need attention.

One of the most serious is the continuing and sustained abuse of the constitutional referendum as an aid to government policy. To this can be attached the unfairness of the judiciary's handling of referendums.

While it would be wrong to admit constitutional cases as 'pro bono' in advance, we need to recognise, and change, the present system of deciding costs at the end of the case with no adjudication of their status at the beginning of pleadings. This is unfair to litigants who may be deterred simply on financial grounds.

Referendum abuse and the one-sided court approach should be addressed by the Oireachtas as a matter of urgency and against the background of what is actually happening, including two important and imminent court judgments, one following the recent but unfinished judgments on the McCrystal case and the Children referendum, the other the Hall case dealing with costs in cases taken by individuals who exercise their right to challenge the constitutionality of legislation. Beyond that, there is the concluding of the Pringle case.

Most important is the McCrystal judgment, which found unconstitutional the Government's partisan information campaign in the Children referendum.

Another important change is one that gives 'locus standi' to all citizens in genuine and non-frivolous cases. Germany has a better system, as do other countries. We are still running referendums the way Hoffa ran the unions or Al Capone handled his taxes.

We have preferential recognition of TDs as litigants. Citizens taking constitutional actions have generally done so on behalf of the people and in the public interest. There has been judicial confusion over awarding 'locus standi' in their right to be heard without prejudice. They face the uncertainty of huge costs in the event of adverse judgments.

To make membership of the Oireachtas a qualification for automatic 'locus standi', as the High Court recently suggested in the Hall case on the bank bailout, is wrong.

If Raymond Crotty, Patricia McKenna, Anthony Coughlan and Mark McCrystal had not challenged government behaviour in referendums, abusing citizen's rights would have continued unchecked. They gained nothing by their legal actions save the righting of wrongdoing. They had much to lose if they lost.

The recent action, in randomly selecting 66 citizens for a constitutional convention, is an indicator of the equal importance of citizens. It supports the idea that those concerned at possibly unconstitutional behaviour by Irish governments should have more clearly recognised and guaranteed access to the courts in challenging such developments.

We await the conclusion of the McCrystal case as to whether the result of the Children referendum itself falls. The High Court is involved, and the petition may go to the Supreme Court. It is in the national interest that this and future governments be prevented from doing again what this one did. The Supreme Court has found the Government acted wrongly.

The Government favoured the Yes side in a blatant and sustained series of acts. The errors included publishing and promoting the partisan booklet, apparently ignoring the advice of the Attorney General or failing to consult with the Attorney General, using public money in a one-sided fashion and engaging other resources.

The booklet contained a factual mistake. This was not remedied by the Department of Children right up to polling day. This should have been done during the Supreme Court hearings, and it was unfortunate that the Supreme Court declared that the Government's campaign was unconstitutional only on the eve of the Children referendum. The second part – putting things right for the future – is then up to the Houses of the Oireachtas.

Where would we be without these court responses? The courts have prevented the denial of the public's right to fairness and balance in referendums. The referendums provide occasions for public involvement in legislation. Government abuse of the referendum process has gone on for the past half-century. It was present in the two attempts by Fianna Fail to remove proportional representation in 1959 and 1968. It was blatant in the two Lisbon Treaty referendums. Raymond Crotty, a citizen, successfully challenged the ratification of the 1987 Single European Act on grounds of it being a surrender of sovereignty. In this action the Supreme Court recognised his 'locus standi' as a concerned citizen. Patricia McKenna's historic judgment was a year after her election as an MEP.