Oireachtas Inquiry Referendum 2011: Discussion

Wednesday, 22 February 2012

Joint Committee on Investigations, Oversight and Petitions Debate

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Chairman: Information on Peadar Tóibín  Zoom on Peadar Tóibín  Tá quorum againn. I remind all those present, including the media and those in the Gallery that mobile telephones and BlackBerry devices must be turned off completely as they interfere with the sound and recording system even when in silent mode. Múch iad, le bhur dtoil.

This meeting is to hear information from a panel of experts regarding voter behaviour in the Oireachtas inquiries referendum 2011. This should be an interesting discussion.

Tá an-áthas orm fáilte a chur roimh an fhoireann seo. I thank the delegation for attending the meeting and for agreeing to give a presentation to the committee on the findings. I welcome Dr. Jane Suiter from University College Cork, Professor Michael Marsh, Trinity College, Dublin, Dr. Theresa Reidy, University College Cork, and Mr. Richard Colwell, Red C. The document has been circulated to all members of the committee.

By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of the evidence they are to give this committee. If a witness is directed by the committee to cease giving evidence in relation to a particular matter and the witness continues to so do, the witness is entitled thereafter only to a qualified privilege in respect of his or her evidence. Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given and witnesses are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise nor make charges against any person or persons or entity by name or in such a way as to make him, her or it identifiable.

Members are reminded of the long-standing parliamentary practice that they should not comment on, criticise or make charges against a person outside the House or an official by name in such a way as to make him or her identifiable.

Professor Michael Marsh:  I will do my best not to impugn anybody’s integrity although some of the contents of this report might persuade many people that they have not done a very good job although I will not mention anyone by name.

We were asked to conduct some research into voter behaviour at the referendum on Oireachtas inquiries and to reflect on our findings. As academics always say, many of the results would call for more research but no doubt, some of the questions from members will help to deal with them.

I am using a PowerPoint presentation as I can see the information more easily. First, we began by finding out why people voted as they did. We needed to know this information in order to assess how effectively the referendum was run as an exercise in citizen consultation. Second, we were asked to find out what the public thinks about the political reform agenda to which the Government is committed. Third, we were asked to find out what lessons can be learned for future votes on reform. There are lessons to be learned as regards any future votes on any subject.

I refer to a chart which indicates the difficulty facing voters in the polling booth when voting on a referendum, at least, those of us who vote on referenda. The first item on the chart is SQ - which means the status quo on any issue; where the status quo puts us and the line indicates a dimension of policy. X1 denotes where the referendum will take us on that, for instance, a decision to give a lot more freedom in terms of Oireachtas inquiries. The letter “I” is where I am; this is my view on where we should be; in this case, “I” means a voter. If I have to fill in my ballot paper, I really have to say whether X1 is closer to me than SQ and if it is not, then I should vote “No”. However, if it is, then I should vote “Yes”, because I would rather be where X1 is than where SQ is. This means that as a voter I prefer where the referendum is taking me as opposed to the status quo. It could be X2.

Funny things happen when one draws these lines on the screen. One of the things that happened is that the denominator, “I” moved; it used to be further to the right, closer to X1 than to SQ. Even if I say it is more or less in between, whereas X2 is miles away, I would certainly vote “No” for X2 because that is a long way from where I want to be, even though I do not think we should be where we actually are with SQ. I hope this is clear.

In order to make a competent and reasoned decision, voters need to know where the status quo is, where the referendum proposal will take us. They also need to know where they are. Do voters have views on what Oireachtas inquiries should be and did they have them before anybody else, before the campaign started? They also need to assess whether a rejection of the proposal will lead to a continuation of the status quo or take us somewhere else. Arguably, for Oireachtas inquiries, it leaves us where we were, but for other things, let us say, the vote on Lisbon II, it might have taken us somewhere else. Voting “No” could move the status quo as voting “No” does not necessarily leave the status quo where it was.

When little information is available, voters may not know where the ballot proposition is actually located. If we vote “Yes” to Oireachtas inquiries, it is a case of wondering exactly what that will mean, how much freedom for inquiries, how much freedom to investigate individuals. They may not know what the status quo is and they may not know where they are, therefore, it is quite difficult to make a decision. One of the things we hope to do in a referendum campaign is to provide clarity about all those things. In a normal court of law presided over by a judge, 12 good people and true do not know much when they start but they sit there for a week or two or three. They are given advice from conflicting sides over the truth and at the end, maybe guided by a judge, they reach a conclusion and we are happy with that. However, in a referendum campaign, we do not confine them to a room for a number of weeks and we do not actually know what information is informative for voters nor do we necessarily provide information in the best way. I have provided all this information on the PowerPoint slide.

A few polls were conducted during the campaign and in the early stages it seemed almost everybody said they were going to vote “Yes”. By the end of the campaign, however, a majority had been persuaded to reject the proposal. The campaign mattered in that a significant number of voters, apparently, changed their mind. They certainly changed their mind from the top-of-the head response they had given in opinion polls at the beginning of the campaign to the decision they took in the ballot box.

Referendums are not new here or anywhere else and many studies have been conducted around them. It is common to see this downward slope in support for a particular proposal. The explanation for this typically is that the campaign raises uncertainty about the consequences. In other words, it leaves people unsure of whether the change will be closer to their position or further away. As a consequence, many who do not know vote “No”. That is perfectly reasonable, particularly if the status quo is not unacceptable to them and where it is unclear whether the change will be better or worse, which only those who are very well informed are likely to know. I contend that rejecting a proposal on that basis is not daft but rational. There is an argument that if one does not know, one should stay at home. However, voting “No” when one does not know makes sense if it has not been clearly shown that one will be better off and where there is a chance one will, in fact, be worse off.

An observation that applies very well, if indirectly, to referendums was made by one of the world’s most significant analysts of public opinion, Philip Converse, based on a comment made by an American political journalist. I found it in a book on European referendums: “Never overestimate the information of the electorate, but never underestimate its intelligence.” To put it another way, people are not stupid, but they do not know very much and often they are not very interested in knowing very much. As such, it is a major challenge for the political system when it consults the people, particularly by way of a referendum.

To find out what happened in the course of this referendum campaign, we carried out two major pieces of research. One was a quantitative study - a conventional opinion poll - involving 1,005 interviews and using random digit dialling. Half of the sample was interviewed on a landline and the other using a mobile phone. This is the methodology usually employed by Red C. Interviews were conducted across the country with a random sample of adults. We also undertook some qualitative research using four focus groups each comprising ten people, with interviews conducted at the beginning of December. All of the participants said they had voted in the referendum. Each group was comprised of a mix of “Yes” and “No” voters, but some groups were more middle class and others more working class, and they were constrained in terms of age group, with some groups consisting of younger voters and others older voters. The objective was to have reasonably similar people in each group and get a cross-section by using the four groups. Unlike the quantitative study, where one asks a set number of questions and people give responses, the qualitative research involved a structured discussion around a number of questions asked by the moderator. The responses were recorded, written down and can be analysed.

The results of our quantitative research were striking. For example, in asking questions about several elements of the reform agenda we asked whether the Oireachtas should be able to hold inquiries into matters of general public interest. I am sure members would all agree it should, which was, in fact, also the view of the majority of respondents, who agreed either strongly or slightly with that statement. A fairly small proportion disagreed. This finding is somewhat odd, given that the electorate had just rejected this very proposal. Of those who had voted “Yes” in the referendum, 93% were of the view that Oireachtas inquiries were a good idea. It makes one wonder about the remaining 7%; perhaps that finding can be accounted for by confusion.

Of those who had voted “No”, 58% supported Oireachtas reform, which immediately begs the question as to why they rejected the referendum proposal. There seems to be three reasons for this. First, while the people concerned like the idea of Oireachtas inquiries, they did not support the level of inquiry power proposed. In other words, the change was too great. That sounds like a plausible reason for voting “No”. Second, there was too much uncertainty and they were not sure exactly what they were voting for. These voters did not see a conflict between liking Oireachtas inquiries in principle and rejecting the referendum proposal when the paper was put in front of their nose. Third, some people did not make their decision based on anything to do with Oireachtas inquiries but voted on some other grounds altogether.

Although there is a great deal of fascinating and valuable information in our presentation, the information on the slide is particularly significant. I am not always convinced by the answers people give when asked why they accepted or rejected a particular referendum proposal. What is striking is that when we asked people why they had voted “Yes”, 18% said they did not know. An additional 40% said something along of the lines of “It seemed appropriate”. That does not seem to be much better than “I do not know,” but members can judge for themselves. Of those who rejected the proposal, 44% said they did not know why they had done so, with a few more saying things that sounded like “I do not know”. That is set out in the small print.

When we asked voters who had supported the proposal whether they could recall the arguments for a “Yes” vote, 42% could not. In response to the same question, 47% of those who had voted “No” gave the same reply. Half of “Yes” voters could not recall the arguments for a “No” vote; 42% of voters who had rejected the proposal gave the same response. Asked whether they could recall who had argued for a “Yes” vote, 50% did not know.

On the question of which parties had supported the proposal, a significant number of respondents identified the Fine Gael Party, with a smaller number citing the Labour Party. This seems sensible enough, given that they are the parties of government. However, some 50% of respondents could not answer. To the question of whether they could recall who had called for the referendum to be rejected, 57% could not think of anybody. When it came to the political parties, a modest number named the Sinn Féin Party as one which had called for a “No” vote, which was probably a reasonable guess.

What does all of this add up to? When asked a relatively short time later for any information on the referendum campaign, a substantial proportion - bear in mind that these are people who said they had actually voted - could not remember or did not know what the arguments had been for voting “Yes” or “No” or who had made them. That is an indictment of the way in which the referendum was run and an indictment more generally of how any referendum is run.

When it comes to trust in sources of information, we asked people to indicate their level of trust on a five point scale, from one to five. The slide shows the numbers who had a high degree of trust in the various groups offering them information. Members will probably not be surprised to see that politicians do not score very highly, at 9%.

Deputy Michael Conaghan: Information on Michael Conaghan  Zoom on Michael Conaghan  Is that Fine Gael politicians?

Professor Michael Marsh:  I assume what people mean is that they distrust other politicians besides theirs. All of the evidence is that people like their particular politician - the one for whom they voted - but do not think much of the rest of them. Members will be relieved to know that somebody likes them. Information from the Internet also scored low. Trust in media coverage was recorded at a figure of 25%. For former Attorneys General - even those who used to be politicians - the figure is 27%. The Referendum Commission is the key entity here and it is one of the bodies which we entrust with clarifying what the reform means. The figure for the commission is 35%. Finally, the figure for legal experts is 37%.

There was not a hugely high level of trust in anybody. That clearly makes matters more difficult. We know, from international evidence, that when people are making up their minds about issues on which they do not possess a great deal of information, they may be more inclined to opt for a trusted source rather than working their way through all the arguments. In other words, if a person one trusts says, “That is a good idea”, then this provides a reasonable shortcut and means one is not obliged to spend two weeks reading all the information. If a former Attorney General states that something is a bad idea and if one trusts that individual, then the option is to vote “No”.

Another factor which arises is partisanship. People may trust the party for which they vote to tell them things. The “No” vote was strongest among those who said they vote Fianna Fáil, even though that party was of the view that the referendum was a good idea. It was weakest among Fine Gael voters, perhaps because their party is in government and was responsible for holding the referendum. In such circumstances, they assumed Fine Gael was in favour of it. There is not a huge difference but a 65%-35% split is certainly not negligible. There is no reason why, in principle, we would expect someone who votes Fianna Fáil to be more or less in favour of Oireachtas inquiries than a person who votes Fine Gael. I hope I am allowed to say it but this is probably one of the few matters on which supporters of those two parties actually differ. Labour and Sinn Féin supporters were somewhere in the middle and tended slightly to vote “No” in much the same proportion as the sample as a whole. Among supporters of other parties and Independents, there were also slightly more “Nos”. As already stated, the figure relating to Fianna Fáil in this regard is particularly striking.

We asked people about the usefulness of different sources of information and they indicated that they were not really impressed by the Referendum Commission’s advertisements or its information booklet. The figures relating to sources such as the Internet and friends and colleagues show a slight rise. However, as is always the case with elections of any kind, newspaper articles and stories and TV and radio discussion programmes were the major sources of information. People found TV and radio discussions the most useful source. The striking fact in this regard is that neither the booklets sent to people’s homes by the Referendum Commission nor the advertisements for which it pays out of our taxes are considered particularly useful by most people.

The next question we put to people related to the source which had the most influence on them. Again, media coverage and specific TV and radio broadcasts came out on top in this regard. People do not consider that they are influenced by the Referendum Commission. In principle, of course, the commission is not supposed to influence people but it is supposed to supply them with information they can use to make a decision. Even though politicians are not trusted, many people are influenced by political debates and politicians’ views. No one ever stated that all of the responses have to be consistent.

We compiled some incredibly fancy statistics - which I will gloss over - in respect of what sort of matters related most to the “Yes” and “No” votes. Many of the things to which I have already referred are interrelated. We are just trying to discover which of these - in themselves and leaving aside interrelationships - was particularly important to people. The question we asked ourselves was if everybody, rather than 80%, had thought Oireachtas inquiries were a good idea, what would we have expected the “No” vote to have been. In that context, it would have been 23% lower. If, therefore, everybody had favoured Oireachtas inquiries, people would have voted “Yes”.

As far as trust is concerned, if nobody had trusted former Attorneys General, the “No” vote would have been 21% lower. If nobody had trusted legal experts, it would have been 8% lower. That is quite small. If everybody trusted politicians, the “No” vote would have been 22% lower. In view of the level of trust in politicians, that is, perhaps, quite a small change. If everybody had trusted the Referendum Commission, the “No” vote would have been 11% lower.

In terms of knowledge, a number of issues arise. If nobody had known that the former Attorneys General had criticised change, it would not have made a great deal of difference because not all that many people were aware of what they said in the first instance. We asked a specific question on what would have happened if people had known what were the limits relating to a particular Seanad inquiry and, again, knowledge in this regard would not have made a great deal of difference. If everybody had said they did not know when asked what were the arguments in favour of a “No” vote, that vote would have been somewhat lower. On partisanship, if everybody had said they would vote Fine Gael at the next election, the “No” vote would have been 17% lower. I realise most members view such a scenario as appalling but it is just fictional and I do not mean it.

To summarise all of this and return to the reasons for the “No” vote, the first question we asked was would what was proposed have given rise to too big a change. A case can be made that for some people it would have been a reasonable change. Not everybody had a low level of knowledge. There were many people who thought they knew a great deal and who could answer questions on particular matters which one would have thought were related. For some people, one must say that it was a perfectly genuine vote, that it was a perfectly reasonable decision to reach and that it was a change that was just too great.

The second reason relates to there being too much uncertainty. The “Yes” vote would have been higher if members of the electorate had judged themselves to be better informed, if they had found certain sorts of information more useful or if more of them had trusted the Referendum Commission. Those who favoured the principle and voted “No” were much less likely than those who favoured the principle and voted “Yes” to feel they had enough information. People who voted consistently with the view on whether we should have Oireachtas inquiries were more likely to feel they knew enough. There are some signs there of uncertainty and not knowing leading to a “No” vote.

The third reason relates to matters unconnected to the substantive issue. We found - this is also the case elsewhere in the world - that there is a tendency to use a referendum to vote against the Government. There are some signs of that in this instance, I suppose. Fine Gael supporters were much more likely to vote “Yes” and Fianna Fáil supporters were much more likely to vote “No”. Perhaps that is a question of trust in the people making the arguments rather than rejecting the Government, as such. However, another referendum was held at the same time and that was passed. If people were simply voting against the Government, then this raises questions as to why they did not vote against it in the other referendum. The answer might be that the proposition put in the latter was more simple. Cutting judges pay was a no-brainer but allowing the Oireachtas to hold inquiries was more difficult. It appears to have been a case of people voting against the Government because of the uncertainty that existed.

I have made some suggestions with regard to why people voted as they did. We also asked what the public thinks about the political reform agenda. We inquired with regard to a number of items on that agenda and the views on most of them were favourable. There is, however, one for which there is no support. It will probably be no surprise to members to discover that this is the one which relates to the PR-STV voting system. Voters do not want the latter to be changed and the reasons for this have probably been rehearsed before. However, there were majorities in favour of all the other reforms, ranging from removing the references in the Constitution to women’s life in the home to reducing the number of Deputies.

There was no sign that there was a body of voters who were keen on reform. Therefore, support for one did not indicate support for the other. There was some discrimination between what people liked and what they did not like. There was some slight tendency for views on removing the offence of blasphemy and changing the place of women in the Constitution but there were not strong views. There was no strong tendency of “Yes” or “No” voters in the referendum on Oireachtas inquiries to support or reform or no reform. On the reform agenda, most people think most elements of it appear to be a good idea and that increasing the power of the Oireachtas to promote inquiries is a good idea but they did not vote for it.

We also asked about the establishment of a constitutional convention and its make up. We gave people a ten-point scale, which is a conventional way of doing these things, and we labelled one end as being totally made up of politicians and the other end as being totally made up of the general public and asked where did the person put himself or herself. Members will note that 41% of people put themselves at five and they might think that indicates a slight bias towards an assembly made up of politicians and it could be interpreted as that, but it is also the case that if one gives people a one to ten scale, most people would think five is the midpoint because five is half of ten. However, it is not the midpoint, as members will know, as the midpoint is between five and six. It would make more sense to see five plus six as the midpoint and then note how many people were to the right and to the left of that. If one does that, there is almost nobody to the left of that point but there are many people to the right of that point. To the extent that people care, it seems they want more members of the public rather than politicians on a constitutional convention.

I have returned to the slide with the main questions and one of those is what lessons can be learned for future votes. There are many words in this respect and perhaps the slides do not help all that much. In low salience referendums, the campaign is crucial. We get that both from our quantitative and qualitative work. Timing is very important. This was a very rushed referendum, rushed in terms of giving the Referendum Commission time to do its work and allowing all those who felt they needed to inform the public time to do so. A perception of haste perhaps does not generate confidence among the public. Many of our focus group people told us that in respect of the importance of the change. Trust in sources is very important.

We argue that a campaign should make use of direct and indirect campaign methods. Parties in running elections - the members know more about that than I do - are aware of all the direct and indirect ways in which they make their appeal to the voters. However, it seems they forget some of this when dealing with referendums. It is important to have direct campaigning, which includes canvassing through political parties and politicians, the use of posters to remind people what some of the key arguments are and to have diversity in the campaign pamphlets and literature to appeal to a much wider audience than putting a rather solid lump of literature through a letter box written in words that would not be out of place in The Irish Times that are supposed to be read by everybody. I spoke on referendums to a committee like this previously and asked why do we put High Court judges in charge of referendums and not put tabloid news editors in charge of them. One is probably as outrageous as the other in my view.

With regard to indirect campaigning, there is a big role for political parties but also for civil society organisations. Referendums work best and people feel they are well informed when civil society gets heavily involved. We should target “soft” news, local and national talk radio and online sources. People used to watch RTE and that is all there was, but that is not all there is any more. If people do not like what is on that station, they will look elsewhere. To cite the analogy I used earlier, they are not members of a jury sitting in a court room who cannot leave; they are plugged into all sorts of different things and if one wants to get their attention on a matter of public importance in a referendum, one has to get their attention in many different ways.

The Referendum Commission works to a tightly specified legislative framework, which, as members will remember, has been changed over the years. There used to be newspaper advertisements with people arguing for a “Yes” vote and other people arguing for a “No” vote. That was then changed and it was changed again. It does not matter how it is changed, we cannot rely on the referendum commission to do the job. It must involve the parties and civil society. Even if the Referendum Commission is doing the job that it does, it should still seek a wider variety of outlets. Some of the literature must be more readable by someone with a reading age of ten rather than a person with a reading age of 30. I think that the composition and design of the commission should be given some attention and in saying “I think that”, I should say that is what we think. I am making the presentation and my colleagues will answer the questions.

I will briefly outline the quantitative and the qualitative conclusions. The quantitative conclusions are that people were in favour of Oireachtas inquiries in principle but there was very little awareness of the debate. In that context, it is not surprising that people voted “No.” On the qualitative conclusions, we need more information through a wider variety of media and from a wider variety of sources and personnel. We need to give the Referendum Commission, the politicians and civil society a longer period of time in which to inform the public so that they can do the right thing when they are in the polling station at the ballot box.

Chairman: Information on Peadar Tóibín  Zoom on Peadar Tóibín  Go raibh maith agat as an chur i láthair iontach suimiúil sin. I wish to ask the witnesses a few questions. Professor Marsh might have given information on the percentage of people who felt that the change was too big and I may have missed it. Was it possible to analyse the percentage of individuals whose motivating factor for voting “No” was that the change was too big? It seems that half of the people who voted “Yes” or “No” voted without having a strong knowledge of the arguments either way, or of the parties that were making the arguments. That shows that knowledge was a big component of this. There was also little or no personal campaigning or canvassing on this issue, if I recollect that correctly, so it was like a media campaign without the general infrastructure that there would be in other referenda or elections. In the aftermath of it, a few people were of the view that holding multiple referenda on the same day confused the issue and led to that lack of knowledge. Would that indicate something for how the Government would potentially deal with the constitutional convention because perhaps there would be a number of outputs from that? How its uses referenda to achieve a change in the Constitution will be important.

Professor Michael Marsh:  I will deal with the Chairman’s first question. I will be brief as my colleagues might want to respond. We did not ask people was this too big a change. That is an inference I make from the fact that people were in favour of it but did not vote for it. It is possible that for some of them, they did not know what sort of change it was, they were not informed, but for some of them it was too big a change. Perhaps those one time Attorneys General would like to see Oireachtas inquiries having more power but not that much power. It is perfectly reasonable that some people would make that point, but it is not sustainable to say that it was the reason most people voted “No”, because that would not coincide with the information we had on knowledge.

On holding a referendum at the same time as a very exciting - in media terms - presidential election, it is not surprising nobody mentioned the referendum. We all knew the referendum was coming up but there was anecdotal evidence that some people only found out about it when they went into the polling booth. It is not reasonable to run those things at the same time. Having said that, many countries do so. They run referenda or plebiscites at the same time as other elections. It makes it that much harder to get the information across.

Dr. Jane Suiter:  In the focus groups, the issues about canvassing and multiple referenda in particular came up. One cannot speak with the same degree of certainty, as it only refers to what people in the focus group said. One cannot say it is what people in general think.

People were asked specifically how many referenda they could deal with at one time. The view was always approximately three if they were on similar topics. People said that any more than three would be difficult for them.

There was a focus on the lack of canvassing. Many people said that their local politicians did not knock on their doors. They said nobody asked them to vote in any particular way. That is part of what Professor Marsh said earlier; that there is a difference between what people think about their local representative, who they want to hear from on the doorstep about what they think on a referendum, compared to politicians in general whom they do not trust. It came out in the focus groups that people want local canvassing.

Deputy Charles Flanagan: Information on Charles Flanagan  Zoom on Charles Flanagan  That is most interesting. I thank the experts for their presentation. However, there is nothing new in the result, in so far as we politicians dropped the ball. As an elected representative I accept a measure of responsibility in that regard. I did not conduct any public meetings. I was not asked to do any local radio interviews but I offered to do one interview on a local radio station. We need to be far more proactive ourselves. I am interested in drawing from the lessons learned and seeing how best we can move forward because questions will arise in the lifetime of the Dáil that will be addressed by way of referendum.

To return to the point made by Dr. Suiter of multiple questions on the one day, we need to prepare for that because it is not feasible to go to the country every three months with a different question. We would run the risk of inducing referendum fatigue.

Could one draw a conclusion from the research that people believe these are issues on which the Government should go ahead, that the Government should not go to the people to change the Constitution but that it is elected and it should do the job? I do not see any reference to that in the research but, anecdotally, I have come across that in the course of a campaign.

Reference was made to “too big a change” and “too much uncertainty”. Both of those notions derive from a lack of knowledge, which is a consequence of a poor campaign. I am not sure whether one can categorise “too much uncertainty” or “too big a change” in a different way. They both give rise to fear and that fear is a result of a poor campaign, not being convincing and a lack of information. The referendum campaigns were left primarily to Ministers. One Minister referred to them as the “Howlin referendum” and the “Shatter referendum”. That is indicative of a very poor performance on the part of Government and parliamentarians.

I am delighted reference was made to the Referendum Commission. I still think there is an issue with the McKenna judgment that we in the Oireachtas must address because it does give rise to a lack of balance. That was particularly stark in the context of the judicial pay referendum. The form of the advertisements in the commission’s campaign was patronising. I am a rural Deputy and I took exception to an advertisement by the Referendum Commission in which a farmer said he did not know much about the referendum but he is able to count calves. Really, I would have thought that the commission might have been a little less patronising in the context of the campaign. I accept what was said about a plain English campaign. However, I would not opt for a tabloid editor over a High Court judge.

It is clear from the research that there is a tendency to vote against the Government, which not only comes through in this case but in previous referenda, and to take the opportunity to give the Government of the day a bloody nose. Sometimes it does not matter what the question is because people are going to vote “No” anyway. There is an inbuilt “No” from the very beginning. I challenge the witnesses to rebut a presumption on my part that this is the reason for a high “Yes” vote in the beginning but during the course of the campaign such extraneous issues, some of a fearful nature, were introduced to muddy the waters and increase uncertainty.

It emerged from the research that while Fianna Fáil was officially campaigning for a “Yes” vote, its supporters in disproportionate numbers were voting “No” because of legacy issues to give the Government a bloody nose and to get back for what happened last February or March.

I accept that campaigns matter and that trust is crucial, but in the context of a programme of constitutional reform, as a politician I seek the support of civil society and ask people to engage and not to leave it solely to the politicians having regard to what the research says on the low level of trust and esteem. Public information campaigns should involve politicians in partnership with civil society. There is a considerable lack of knowledge and there is not inbuilt in the research any great optimism to suggest that people are prepared to be convinced. Major groundwork must be undertaken by more than just politicians.

Professor Michael Marsh:  As regards there being nothing new in our findings, after the Whitaker commission on the Constitution reported in the 1990s there were a number of separate volumes about different elements, one from 1999 on referenda, and everything that we have just said was probably contained in that report. There is nothing new. The trick is for someone to take note of it. Part of the reason people do not take note of it is the constraints that are perceived by the McKenna judgment. There are probably other ways to do things which are not inconsistent but they are for lawyers to address. Lots of countries run referenda a lot better than we do.

On voting against the Government, that is true up to a point, but there are referenda where there is no sign whatever of anybody voting against the Government. Again, there is much international evidence to suggest that people are more likely to use those sorts of reasons to vote when they do not know what they are doing. The less information they have; the more likely they are to do that.

In the first referendum on the Lisbon treaty a lot of “No” votes were votes against the Government. The evidence is clear on that. With the second referendum the Government was as unpopular as any government has ever been in the history of the State and the referendum went through. There was very little sign of anybody voting “No” because they did not like the Government. They did feel pretty well informed and that is the key. One has got to give people the information to act on the issue and not on something else.

Mr. Richard Colwell:  With regard to holding a number of referendums on the one day, there was clear evidence that the people fully agreed with the Government. They do not want 20 referendums in a year where they have to keep going to vote. They want them held on the same day. The difference in this case was that the presidential election completely swamped the referendum on the day. The public would be open to two or three referendums on the one day and agree that it is sensible.

Dr. Jane Suiter:  Particularly where they were on a single theme and that was mentioned in some of the qualitative groups. If it was around a particular aspect of reform they would be more in favour of that.

Dr. Theresa Reidy:  The civil society aspect is also important. While politicians have a role, people use shortcuts in different ways and one saw that in the European referendums. Different groups, whether they are farming groups, employers, trade unions, civil society or interest groups, help to broaden the debate and help people make their decisions and feel more informed. The more groups that can be involved, from both sides of the debate, the better and the more information people feel that they have.

Chairman: Information on Peadar Tóibín  Zoom on Peadar Tóibín  Go raibh maith agat.

Deputy Alan Farrell: Information on Alan Farrell  Zoom on Alan Farrell  I thank the delegation for attending. Its report was interesting. I agree with what has been said and on there being a lack of new information. Many analyses have been done over the years on various referendums and elections and it is not impossible to extract the same sort of information.

A few years ago I read an interesting report on trust within the professions. At the bottom, as was illustrated on one of the group’s graphs, were politicians. It was at 9% on the graph but 12% in the one I saw a few years ago. Of those professions, that of politicians was the only one directly elected or directly put into that category, which I find confusing. Is it a legacy issue from the past or an underlying distrust of the people we select to govern or make legislation?

I have a number of questions that stem from the presentation. One of my questions was on the Oireachtas being able to hold inquiries into matters of interest to the public. Some 58% of those voting “No” also support a referendum on Oireachtas inquiries. What was the remaining 42% thinking when they voted “No”? Was it a combination of “we do not trust the Government so we will give them a bloody nose” with “we did not have enough information so we are going to vote "No"? Was it a suspicion? I am trying to extrapolate from some of the figures provided by the delegation.

There was an overwhelming level of support for the inquiry or the premise of the inquiry or inquiries. Yet in the later days of the campaign polling suggested that the referendum would be defeated and it was. If the electorate was better informed and presented with more information at an early stage, and there were fewer distractions than there were during this campaign, would the result have been different? Is there a set of rules governing the outcome of any given referendum? Did the sideshow during the referendum get in the way of the message and allowed the electorate an opportunity to say, “I was not given enough information so I am not going to vote “Yes” on that, I am going to err on the side of caution”? On which side is caution?

The delegation has already covered the question of holding multiple referendums on the same day. What has Mr. Colwell to say on that? One can have a number of referendums on the same subject matter. It is not too much to ask the electorate to assimilate. For instance, we are talking about having one referendum on children this year. If one were to add another small constitutional alteration regarding other rights and-or freedoms given by the Constitution, but not primarily to do with children, would that become a separate campaign? Would it be easier for the electorate to assimilate that information?

On page 7 of the presentation a third reason was stated and the group was asked how does one stop the electorate from giving the Government a bloody nose. How does one conduct a referendum campaign yet take party politics out of it? We are all Irish citizens but when it comes to a referendum it is about the Constitution and not party politics, or at least it should not be. Is there a suggestion or conclusion in the finding?

Would weekend voting have made a difference to the campaign? If polling took place on a Saturday would it have made any difference to the outcome? Finally, and cheekily, I will ask the members of the delegation how did they vote?

Chairman: Information on Peadar Tóibín  Zoom on Peadar Tóibín  I want to bank the questions of another member, Deputy Mulherin, and then the delegation can respond to both sets of questions.

Deputy Michelle Mulherin: Information on Michelle Mulherin  Zoom on Michelle Mulherin  I thank the Chairman. I also thank the delegation for its analysis and presentation. I am from Mayo where the referendum was passed. I actively campaigned for it but was conflicted by the issue at its heart. We had spent hundreds of millions of euro on tribunals. They had the trappings and were, for all intents and purposes, courts of law but ones without teeth and I found that offensive. It seemed to me that we should, providing that we observed natural justice and one did not have to be lawyer to conduct inquiries and get at facts that were of public interest. In saying that I am speaking as a lawyer. I was very conflicted when I was knocking on doors, although I did not knock on as many doors as I would have for a general election. I agree that people did not have any idea about the nature of the referendum. They were easily persuaded. If one asked them, and they held you in regard, they would vote “Yes” but not because they understood or appreciated the referendum.

Another challenge arose when one started explaining it, where one could take a line on it, but once one started to go into the complexities of its meaning one lost people’s attention immediately. Perhaps more of a campaign could have been mounted. In the end, the “No” campaign displayed placards that used phrases like “kangaroo courts”. Perhaps we could have conducted a campaign along that line but the referendum was complex and there was a lack of information. A lot of information was being pushed through people’s doors but knowledge, which is a step beyond information, was lacking and people did not assimilate the information.

I would not be as harsh on the Government as my colleague, Deputy Charles Flanagan. The referendum gave us a clear message. Even talking to people, and again it goes for constitutional and political reform agenda, the people do not want super powerful Dáil committees and Deputies having all the power, as they would see it, to scrutinise people. I know that fear was played up, to good effect, by those who opposed the referendum at the end of the campaign, particularly the lawyers who put fear in people. The people did not want to give such power to Oireachtas Members.

The end result of our constitutional reform agenda would mean no Seanad. Is one saying that there will be Deputies scrutinising people? People know about the McCarthy era. Such examples were being plucked out of the bag. The result has given us a clear message. It is a legacy of Fianna Fáil having been in power continually for 14 years and for most of the past 20. People say absolute power corrupts absolutely. There is a major trust issue associated with putting all one’s eggs in the one basket. People witnessed light-touch regulation and feel there need to be more checks and balances in the way politicians operate, and that the separation of powers should be respected. Although we talk about the separation of powers between the Parliament and the Judiciary, people instinctively believe there should be someone to keep an eye on somebody else to ensure he is doing the right thing.

Most fundamentally, the scene for the constitutional reform agenda has been changed. In this regard, I include the scene set in the programme for Government. People are saying they do not want super-powerful committees and to abolish the Seanad. They are saying there is possibly a place for an institution such as the Seanad, but perhaps not in its current format, to keep an eye on the other House or introduce another viewpoint. The very good intentions laid before the electorate by way of the programme for Government are called into question and we need to rethink the whole constitutional reform agenda. What has occurred means any attempt to do anything with the Seanad should be part of the constitutional convention and not part of a solo run. The Seanad is mentioned so frequently in the Constitution and is such an integral part of our parliamentary process that what I propose is the only realistic approach. Without this approach, we are engaging in a very disjointed exercise that will take up considerable time and still not do a complete job. If we are to do business in that way, it will result in the circumstances that led us to establish so many tribunals to no effect. Instead of showing leadership, politicians were too quick to set up tribunals to put issues at arm’s length and to let the lawyers sort them out instead of grasping the nettle.

Aside from the inadequacies of the campaign, there is a real message from the people to be borne in mind. It involves a trust issue. Most people, irrespective of who they vote for, probably feel a sense of ownership of their local politician. Their perspective in this regard is different from their perspective on politicians in general. The challenge is to review and rethink the constitutional reform agenda. That is the main message I take from the process.

Chairman: Information on Peadar Tóibín  Zoom on Peadar Tóibín  Would Professor Marsh like to address some of those questions?

Professor Michael Marsh:  Those who liked the idea voted “No” partly because they had good grounds for doing so. As I suggested, the provision went too far for some. Others just did not have enough information to relate what they would say in principle to what the referendum actually said. It was really a question of a lack of information.

I was asked how one removes the politics. In some ways, one does not want to do so and one wants to involve the parties. Clearly, one ultimately wants people to vote on the issue itself, not on extraneous matters. If we had had weekend voting, there would probably have been a slightly higher turnout. I have no evidence to suggest what effect this would have had. The referendum had a pretty high turnout in any case because it was at the same time as the presidential election. Had it not been, the turnout would have been quite low and a different result might have been obtained.

On the question as to how I voted, the answer is fairly easy; my passport was issued in the United Kingdom.

On Mayo, the result really demonstrates the truth of our simulation. Had everyone voted for Fine Gael, the referendum would have been passed.

Senator Susan O’Keeffe: Information on Susan O'Keeffe  Zoom on Susan O'Keeffe  I, having been known as the “beef tribunal girl”, rather liked the “girl” part but not the “beef tribunal” part. I, therefore, had a particular interest in having the referendum passed and I was very disappointed when it was not.

The delegates have done a great service with this work. While Deputy Flanagan pointed out that some of the results were known to us, it is always good to have them in writing and contemporaneous. I very much appreciate the work.

Can the delegates really stand by what they say on people recalling the arguments, as stated on page 4, when the referendum was swamped by the presidential election and personality politics? I am not at all surprised that when one asks people whether they can recall certain events, as was done in November, they cannot remember anything. This is because so much went on. That this is not reflected in the way in which the information is presented puzzles me. I am puzzled that the presentation does not mention the presidential election although they must have been part of the research. Every last person asked must have had it in his head even if he had not been asked about it. Can Professor Marsh stand over the results?

On what Deputy Mulherin was saying about constitutional reform, the essence of reform is change. In Ireland, change inevitably means having yet another referendum. It appears we will be facing this in the coming years. What advice has Professor Marsh on how we should genuinely tackle that on the ground given that that is the vista – I will not use the word that normally accompanies “vista”– that faces us at this point. Despite this, we have no choice and are committed to change. I entered politics because I believe we need an extraordinary amount of change, yet we face enormous dilemmas over how referenda operate and the associated difficulty. Professor Marsh referred to them as a major challenge. To consult people is difficult. What do we do?

Could the Referendum Commission embark on a programme of continuous education? It pops up every time we have a referendum and then pops down again. While I acknowledge it does other things, I believe there is a lack of education overall on the role of the referendum. Therefore, it gets used to presenting a bloody nose, or whatever one likes to call it, to the Government when it pops up. There is no even distribution of information. What are the professor’s thoughts on that?

Deputy Michael Conaghan: Information on Michael Conaghan  Zoom on Michael Conaghan  Professor Marsh has derived a great deal of wit and humour from the subject. I thank the delegates for their presentations. I was surprised by the very late and critical intervention made by a small number from the legal profession. They made very sharp and targeted interventions. The public listen to the opinions of barristers, senior counsel and others. The individuals from the legal profession to whom I refer almost subverted the campaign and more people should have remarked on that. Could the panel evaluate the intervention?

Deputy John Paul Phelan: Information on John Paul Phelan  Zoom on John Paul Phelan  There are a number of issues I want to raise. I will not repeat what has been said. I love statistics and studied the subject for a while. There are many nice statistics in the presentation but some seem to be quite contradictory. Page 4 contains a diagram on levels of trust in information. Some 9% identified politicians and 35% identified the Referendum Commission in this regard. The following page states 12% of people’s voting decisions were influenced by the commission and 24% by political debate and politicians’ views. This indicates the public likes the Referendum Commission but believes it did a shocking job, and really dislikes politicians but believes they did a relatively satisfactory job. Perhaps this is just an example of how statistics, depending on what question is asked, can give very different answers. I am interested in the questions that were specifically asked and while I cannot recall exactly how he phrased it, Professor Marsh stated he was making an assumption that the reason people had voted “No” was based on it being too big a jump. I do not believe this is an unreasonable assumption to make but I am asking about the specific questions asked, as some of the tables included in the presentation appear to be headed by some very open-ended questions. For example, the first graph displayed pertained to the proposition that “The Oireachtas should be able to hold inquiries into matters of general public interest”. Although there was a very positive response from the public, that is a very nice question. Had the question been on whether the Oireachtas should be able to hold inquiries into matters of individuals’ interactions with particular State agencies, the answer statistically might have been very different from the answer as shown by these results.

From my perspective, the most interesting slide was the one which examined the 80% of people at the outset who stated they would vote “Yes”. However, on referendum day that became less than 50% of people who actually did vote “Yes”. Professor Marsh referred to a journalist from the United States who made a comment on such declining figures elsewhere. In the future, I would like to see further investigation on the reason people can have a particular view at the start of a campaign which then changes so dramatically over the course of that campaign. This feature has been evident in the course of several referendum campaigns that have taken place in recent years.

Earlier, I flippantly mentioned to my colleague, Deputy Charles Flanagan, that because so many prospective referendums are coming down the tracks and because the nature of Ireland has changed so much, instead of the first Friday perhaps we could have the first referendum day every month. This is because potentially, there are many areas in which the Government and the political parties in general are considering reform. Senator O’Keeffe was spot on when she stated that in Ireland, a great deal of reform is predicated on having more referendums in the future. If it is shown the public has one particular opinion at the start of a campaign but that things change dramatically by its conclusion and if the witnesses’ study shows that we do not really know the reasons for such a change, I do not know whether we are much the wiser.

Professor Michael Marsh:  As for the presidential election and whether I stand by the results, the answer is “Yes” but I suppose it is a question of what that means. If not many people knew the reason they voted “Yes” a month later, more people might have known, had I asked them a month earlier. However, this still indicates a lack of confidence in their decision. As to whether this was due to the presidential election, I am sure it was. I am sure it was a combination of the presidential election and the fact the campaign effectively did not start until approximately two weeks before the referendum. As people would have had the presidential election in their minds, that is a factor. However, I am unsure what question I should have asked to show what influence that had. It certainly would not make any sense to ask people whether, had there not been a presidential election, they think they would have known more. People might have said “Yes” or “No” but I am unsure what the status of that response might mean. People had low levels of knowledge and had we asked them at the time, we would have found that out.

As for advice on running referendums, that probably would take a little longer but I am not sure one could get the Referendum Commission to do this on a rolling basis. I believe Mr. Justice Frank Clarke was appointed to head the commission for the second Lisbon treaty referendum about three months before the vote, whereas in this case it was more like three weeks, which is a significant difference. As to whether the former Attorneys General subverted the process, arguably they timed it quite well. The evidence is they had quite a small effect but that is the manner in which we carried out the analysis and that suggests the evidence. My guess would have been the effect probably was a little bit bigger. Nevertheless, a small effect was crucial because the vote was very tight and, consequently, a small effect can make the difference.

As for Deputy John Paul Phelan’s observations on statistics, it is not so much a question of statistics as a question of what words one uses. Trust is not the same as influence and they differ. The Deputy gave a perfectly good reason why apparently inconsistent results are not inconsistent. Had we asked a different question about Oireachtas inquiries, we undoubtedly would have got a different answer. However, to some degree what would have been interesting is whether we would have found the same inconsistency between the answer and what people actually did. My guess would be yes, we would and that is the key point, namely, the inconsistency between the view people express in principle and how they actually behave and much of this is down to uncertainty and lack of knowledge.

Chairman: Information on Peadar Tóibín  Zoom on Peadar Tóibín  Go raibh míle maith agat. I speak for the joint committee when I state that I found the presentation to be both fascinating and useful. It is clear there is an appetite among the political class for the constitutional change but whether the same appetite exists among the population is another question. Anyone who seeks that constitutional change but who ignores the findings of this report does so at his or her peril.

Professor Michael Marsh:  I wish to make one additional point on the questions. If one wishes to study the report, one of course should know what were the questions asked and they are appended to the longer version of the report.

Chairman: Information on Peadar Tóibín  Zoom on Peadar Tóibín  Go raibh maith agaibh arís.

The joint committee went into private session at 5.25 p.m. and adjourned at 5.30 p.m. until 4 p.m. on Wednesday, 29 February 2012.


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