This is my truth, tell me yours

‘NOW, what I want is, Facts. Teach these boys and girls nothing but Facts. Facts alone are wanted in life. Plant nothing else, and root out everything else. You can only form the minds of reasoning animals upon Facts: nothing else will ever be of any service to them. This is the principle on which I bring up my own children, and this is the principle on which I bring up these children. Stick to Facts, sir!’

Some people are never happy. Patricia McKenna, writing in today’s Irish Times (sub req’d), laments the fact that the Referendum Commission, when establish in advance of the Lisbon Treaty vote, will not be providing pro and anti-Treaty arguments to the public and will be restricted to making neutral statements about the Treaty. McKenna’s argument, to my mind, seems a little confused. She reminds us – rightly – of the importance of the principle won in her Supreme Court case, that

The most important principle regarding fairness in referendums is to recognise that each citizen is an interested party and that therefore the referendum rules should not implicitly prejudge the outcome by being drawn up to favour one side as against another.

Any such provision – for example, using public or State resources, which are contributed to by all citizens, to favour the position of one group of citizens – would be unfair to some interested parties.

However, the thrust of her article seems to suggest that the very fact that the Referendum Commission isn’t going to provide two sets of arguments, for and against, is in itself prejudging the outcome of the referendum and granting an unfair advantage to one side over the other. Indeed, the idea that there are two, equally valid ‘sides’ in every referendum seems to be central to McKenna’s position. She writes:

There are always two sides to any referendum proposition, and for a government to act as if the result were judged in advance is to make a mockery of the referendum process.

While many in government no doubt see the McKenna judgement as an inconvenience, and would rather a free hand when it comes to public spending in referenda campaigns, no one publicly questions its validity and no one proposes that it should be overturned. This makes McKenna’s invocation of it all the more puzzling. She seems to be going beyond the principle that no one side in a referendum campaign should be advantaged over another when it comes to the dispersal of public funds, towards a position that both sides have a right to state support for the promulgation of their arguments.

The problem with this, of course, is the question of who decides which arguments are valid and which are not. On one, very limited, level, McKenna’s correct in stating that there are two sides to any referendum proposition: these are the ‘Yes’ side and ‘No’ side. However, within those two side are a huge variety of different, often contradictory positions. How is the Referendum Commission supposed to be able to judge the validity of the various arguments? The checks and balances McKenna highlights aren’t particularly reassuring:

The arguments were solicited from members of the public, were statutorily required to be relevant to the referendum proposition and to be related to the substantive text of the constitutional amendment proposed. The commission itself vetted the arguments for relevance. In other words, the Yes and No advertisements which it placed could not tell lies, bring in extraneous matter unrelated to the issue or be slanted by spin doctors.

All this provides for, though, is a guarantee that the arguments are relevant to the question being put, not that the arguments themselves are actually valid. Does Patricia McKenna really want a state body weighing up the different arguments in relation to a particular constitutional question, and determining which are right (and, by implication, which are wrong)? Or, alternatively, does she subscribe to the position that all arguments are equally valid and deserve equal coverage? It’s hard to see that the electorate would be any better informed in relation to, for example, the Lisbon Treaty by a Referendum Commission which states that one should vote Yes because it doesn’t affect Irish military neutrality, while at the same time stating that one should No because neutrality will be undermined. The Treaty either does, or doesn’t: these aren’t competing ‘truths’.

This difficulty is thrown into particularly sharp relief in the current referendum campaign, with the emergence of the rather odd Libertas (or, The Libertas Institute). While previous campaigns against EU Treaties have involved very disparate groups, opposing the Treaties on very different grounds, this is the first occasion that I can recall where there has been such a direct contradiction in the claims of the different No campaigns. A large element of the left-wing critique of the Treaty is the emphasis on undistorted competition and free market principles (a reasonable point, in my view, although I think it applies more to a criticism of the EU as a whole than this Treaty specifically). However, if one looks at the Libertas website, they take a somewhat different view:

4. Competition Downgraded

The EU’s traditional commitment to “free and undistorted competition” which has featured in the preamble to every treaty since the founding Treaty of Rome in 1957 has been relegated to a protocol in the Lisbon Treaty. This was at the behest of French President Nicolas Sarkozy who has stated his support for the anti-competitive protectionism of so-called “national champions”. As a small open economy, Ireland relies on having free and undistorted competition to give our domestic entrepreneurs and companies scope and scale for growth. Ryanair, CRH, AIB, Airtricity and a host of other successful Irish companies are the testament to this and are counter-examples to what the Treaty of Lisbon proposes to do.

At least, however, this argument makes some sort of reference to the Treaty (although it’s completely wrong-headed). Most of the ‘arguments’ that Libertas has come up with so far are either completely wrong or completely irrelevant to the Treaty under consideration.

Libertas launched their campaign late in 2007 making the claim that the simplified revision procedures in Article 48 would take away Ireland’s right to a referendum on future Treaties. This is simply untrue – the ratification requirements and provisions of the Crotty judgement remain unchanged – and Libertas seem to have dropped this point.

During a recent interview with Ursula Halligan, when asked the basis of his objection to the Treaty, Declan Ganley gave a long, meandering spiel about legislation was initiated (not passed, of course) by unelected people (i.e. the Commission). This is true, of course, but it’s a fundamental principle of how the EU works and is probably the most appropriate way legislation should be initiated, not that Ganley suggested any alternative. More importantly, though, it’s not an issued addressed in the Treaty and will continue to be the case regardless of whether the Treaty is ratified or not. For someone who claims to be a supporter of the EU, and to have voted Yes to Nice, he displays a profound ignorance of the institutions he criticises.

A more recent argument against the Treaty put forward by Libertas is that it makes the Irish Constitution subordinate to EU law. The basis for this? The clause in the referendum bill which states that

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, 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.”

To which the press statement adds:

Mr. Ganley said that this clause was in itself sufficient reason to reject the Treaty.

Of course, if Libertas or Mr. Ganley were interested in real debate or the actual substance of the Treaty, they might have bothered to check the Irish Constitution as it currently reads, specifically Article 29.4.10 which states that

No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities, or prevents laws enacted, acts done or measures adopted by the European Union or by the Communities or by institutions thereof, or by bodies competent under the Treaties establishing the Communities, from having the force of law in the State.

Sound familiar? The only change actually proposed is the removal of the reference to the European Communities, which would become anachronistic in the event of the Treaty coming into force.

Are these the kinds of arguments Patricia McKenna seriously suggests should receive state funding, and the endorsement of the Referendum Commission? If not, then she’s arguing that the Referendum Commission should go beyond simply presenting the arguments and actually engage in evaluating them, drawing conclusions and, essentially, actively participating in the debate.

The same points could be made, of course, in relation to many other arguments coming from both the ‘No’ and ‘Yes’ camps (and the various factions within them). However, the releases put out by Libertas are particularly ill-informed and confused. Which, ultimately, is what makes their latest slogan “Facts, not politics” so tragically amusing. They seem to have little understanding of either.

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