THE GOVERNMENT should be able to spend exchequer funding on a campaign to encourage people to back changes it proposes to the Constitution, former EU commissioner, Peter Sutherland has said.
The Supreme Court’s McKenna judgment, which barred such spending, has “not merely been interpreted as inhibiting but actually as precluding” the Government from such spending, he said.
“This seems to be an unwarranted interference with the government of the country,” Mr Sutherland told the Institute of European Affairs during a speech on the October Lisbon Treaty referendum.
“I do not think that a government in a democratic state should be as restricted as it is in Ireland and an opportunity should be found to review this situation in the future,” he went on.
Pointing to the Hanafin v the Minister for the Environment ruling, Mr Sutherland said Mr Justice Barrington had then said that “the Government is [not] merely the chairman of the debating society”.
Politicians in favour of constitutional change were entitled to persuade the public to adopt a proposal “individually as private citizens or collectively as members of a political party or of the government”, the judge had said.
Ireland, said Mr Sutherland, who stands down as chairman of BP in September, has had numerous referendums on European Union treaties over the three decades of its membership.
“In recent years the Single European Act, the Maastricht Treaty and the Nice treaty provide examples of strident opposition from tiny minorities in Ireland creating great confusion.
“Who now even remembers the points on which this opposition was based? What were the apocalyptic visions that they shared with our citizens and how is it that none of their dire forecasts came to pass which created anxiety for many of them?” he said.
The defeat of the 2008 Lisbon referendum had had “serious negative effects” on Ireland’s image: “Few could understand what we had done and who could blame them?”
He acknowledged that the text of the Lisbon Treaty is difficult to understand, but he said it could not be otherwise because of the complexity of the subject, and the dangers of misrepresentation.
“It is complex of necessity because if it did not seek to cover everything in detail, even more absurd interpretations than those to which we have been subjected would be advanced by opponents.
“So this complexity, paradoxically, is the result of attempts to be clear and unambiguous. If it were a document containing simple statements it would undoubtedly be attacked as a Trojan Horse through which all sorts of alleged mischief could be introduced.
“It would be argued that the document would permit interpretation by the European Court of Justice that would greatly enlarge the competences of the EU institutions beyond those ostensibly intended,” he told his audience.
He blamed part of the public’s confusion on RTÉ’s policy of treating arguments from the Yes and No side as if equal credibility attached to each side.
“[However], virtually no respected and knowledgeable academic or political analyst would have recognised as real the threats that were so stridently proclaimed during the campaign,” said Mr Sutherland, a former attorney general.
Since the major political parties supported the Yes campaign and were thus “crammed into 50 per cent of the air time”, Sinn Féin and Libertas, largely, shared the rest.
Broadcasters have an obligation to report in an objective and impartial manner, he said. This does not mean that people should be given the opportunity to reply “even though that riposte is principally without foundation as was the case” on neutrality, taxation and abortion, Mr Sutherland said.
“In the event that one side (or part of one side) of a referendum campaign is making claims that cannot be substantiated in fact or in law, it is not unfair to that side, nor is it partial, to conclude that the claim in question is unsubstantiated and to act accordingly by not giving it equal air time. That is what editorial responsibility is all about.
“The fact is that by adopting a policy of deference to unjustified arguments just because they were made in a referendum campaign there would necessarily be a failure to be fair to the side not making unsubstantiated claims,” Mr Sutherland went on.
