Having identified a problem, the logical next step is to act to rectify it.

hatrickpatrick · 11-11-2012 12:23am #1

There's a trend of what I can only describe as "learned powerlessness" in Irish politics.
Enda has stated that the only way to postpone a referendum would be to call a general election.
http://www.independent.ie/national-news/postponement-would-trigger-election-3290084.html

"Once that order is made, the only circumstance in which it may be changed, according to the Referendum Act 1994, is if a general election is called," the Referendum Commission said.

Here, we have identified a problem. The government should obviously have the option to postpone a referendum in circumstances such as those which were chaotically faced this week with regard to the information campaign.

They cannot do so under current laws.
They have the power to amend current laws.

Why is there such a difficulty adding two plus two? Sure, this present referendum is a bit of a mess because of it and there's nothing they can do about that now, but what they could do is table an amendment to the 1994 act which allows for the postponement of a referendum under more circumstances than just the calling of an election.
We all know this will not happen. Why?
This issue will undoubtedly come up again at some point in the future, and the government will once again have their hands tied by this 1994 act. I seem to remember this actually came up previously in the last few years with regard to a different referendum, I forget which one now.

They have the authority to amend existing laws - that's what they're there for, FFS. Why do they act like they are utterly helpless in the fact of situations like this?

I'll give you another brief example: We've heard a lot about the banking mess, and various situations surrounding it (the guarantee, bonuses, pensions, whether or not the unethical and damaging behavior undertaken by Seanie & co was actually against the law, etc).

Let's take that last example. It has been suggested that because of certain loopholes, some of the loan hiding which went on in Anglo may not actually be illegal, and therefore may not be punishable or preventable by law.

That's fair enough. Obviously you can't pass a law and apply it retroactively, that would create complete chaos in politics.
But again, they could come out and say "Look, this is a missed opportunity, but next week we'll publish legislation to cover any future possibility of something like this happening again."

I would accept that. I think a lot of Irish people would accept that, in fact. But it's not happening, and we all know it won't.

Why?
Why is there such a reluctance to take the bull by the horns and say "right, this law isn't working the way it should be, and it's causing us problems, so let's get rid of it, or change it to suit the new situations we find ourselves in"?

Why, in other words, does almost nothing actually get done in these situations?

Manach · 11-11-2012 12:30am

In the interim, there would first need to be responsibility.
The State's legal advice on seeking to ignore the McKenna judgement on referendum was negligent. It cost the state money and called into question the legitimacy of the poll. There is a doctrine of individual ministerial responsibility. If a minister has failed to such a degree then his/her position is untenable in the government and either resigns or be sacked. This is such a case. If does not happen, then the issue is not how the system works but the caliber of people running it.

hatrickpatrick · 11-11-2012 4:04pm

^ Agreed absolutely, but the point about the Referendum Act is separate from that - they say the Act is what prevented them from rescheduling the referendum in light of extraordinary circumstances, which is fair enough. They can't break their own laws and I'm sure people wouldn't want them to.

But they could sit down on Monday morning in the Dail and say "Right, this law is causing problems where there needn't be any problems, so let's draft an amendment to it which will cover this type of scenario in the future".

And I don't think that would require endless negotiations within government or sub committees, you'd just be adding a few sentences to the law, covering a wider range of scenarios which merit the cancellation of a poll.

Is this really so difficult that it shouldn't even be considered? The government is there to make the law, in this case they would have a lot of public opinion behind them as well, and I honestly can't think of a single reason they couldn't do this tomorrow if they wanted to. Maybe an extra couple of days to allow for legal wording etc, but they're not even talking about doing this.

Next time we have this problem, they will again have their hands tied by the 1994 Act, and it seemingly will not occur to anyone to ask "Hang on, we had this problem with the Children's referendum, why didn't we fix the Act to make sure it didn't happen again?"

seamus · 11-11-2012 4:13pm

hatrickpatrick wrote: »

But they could sit down on Monday morning in the Dail and say "Right, this law is causing problems where there needn't be any problems, so let's draft an amendment to it which will cover this type of scenario in the future".

And they might. But there's no referendum now imminent, so I fail to see the need to put it top of the agenda on Monday. There are a few thousand other things which are more important.

You also forget that law isn't as simple as, "We'll sort this out next week". The very reason that loopholes and challenges occur is because the law is ambiguous. So it takes time to have the law drafted and then rigorously examined by experts in the field to try and ensure it's as tight as foreseeably possible.
There are also negotiations with interested parties (though not applicable for simple laws), and review groups who have to make sure that the new law is both constitutional and not in conflict with other existing laws.

On principle you're correct - "Let's just fix it", but history has taught us repeatedly, that knee-jerk legislating after specific incidents (like this) more often than not results in very poor and very weak law.

One very obvious possibility is that if we add a clause that allows a referendum to be postponed in the event that the impartiality of the literature is called into question, then certain groups would continually raise court challenges against a referendum (even if they keep losing), to try and postpone the vote for as long as possible.

thebman · 11-11-2012 4:38pm

You forget, these are politicians.

Having found a problem, the next thing a politician does is think of a way to hide the problem.

In this case, if something isn't done on Monday, it won't be done. They'll just wait for it to get out of the media and forget it ever happened.

ArmaniJeanss · 11-11-2012 6:36pm

seamus wrote: »

And they might. But there's no referendum now imminent, so I fail to see the need to put it top of the agenda on Monday. There are a few thousand other things which are more important.

If we consider the Constitution itself to be important, then surely this is a very important matter.

Otherwise you risk getting into a continuous loop of 'referendum called, problem arises late on, law says referendum must proceed, hatrickpatrick creates thread saying law should be changed asap, seamus replies that no other referendum is due so not a priority, matter put on long finger'.

seamus · 12-11-2012 12:16pm

ArmaniJeanss wrote: »

If we consider the Constitution itself to be important, then surely this is a very important matter.

Otherwise you risk getting into a continuous loop of 'referendum called, problem arises late on, law says referendum must proceed, hatrickpatrick creates thread saying law should be changed asap, seamus replies that no other referendum is due so not a priority, matter put on long finger'.

Not important enough to be jumped to the top of the list for the following week's business. That's my contention.

Stick it on the list, sure, but I see no immmediate urgency in this to warrant a jump to the top of the list.

hatrickpatrick · 12-11-2012 5:20pm

seamus wrote: »

Not important enough to be jumped to the top of the list for the following week's business. That's my contention.

Stick it on the list, sure, but I see no immmediate urgency in this to warrant a jump to the top of the list.

It doesn't have to be on the top of the list, the point I'm making is that I can almost guarantee that it won't be on the list at all. Why? Because this came up recently enough with another referendum and it wasn't put on the list back then. They will mumble and groan about it but take absolutely no action whatsoever.

seamus · 12-11-2012 5:36pm

hatrickpatrick wrote: »

Because this came up recently enough with another referendum and it wasn't put on the list back then.

Would you be able to cite this one?

The last challenge I can recall was SF's failed attempt to undermine RefCom before the fiscal treaty, and I don't remember any successful challenges before that. Though I will admit my memory on such things is loose at best.

hatrickpatrick · 13-11-2012 12:00am

seamus wrote: »

Would you be able to cite this one?

The last challenge I can recall was SF's failed attempt to undermine RefCom before the fiscal treaty, and I don't remember any successful challenges before that. Though I will admit my memory on such things is loose at best.

I can't remember which one it was, I'll try and figure it out though. It wasn't all that long ago, so presumably it was either Lisbon or Fiscal.

Point is, this is a limitation which the government has it entirely within their remit to change, and yet they express absolutely no interest in doing so and will undoubtedly face this issue again in a future referendum and be able to do nothing about it because they haven't dealt with this act in the meantime.

Good loser · 13-11-2012 1:06am

The McKenna and Coughlan judgements were daft decisions by the Supreme Court.

Rather than reinforcing them ways should be found to get them reversed as quickly as possible. A referendum?

oppenheimer1 · 13-11-2012 2:41am

hatrickpatrick wrote: »

There's a trend of what I can only describe as "learned powerlessness" in Irish politics.
Enda has stated that the only way to postpone a referendum would be to call a general election.
http://www.independent.ie/national-news/postponement-would-trigger-election-3290084.html

Here, we have identified a problem. The government should obviously have the option to postpone a referendum in circumstances such as those which were chaotically faced this week with regard to the information campaign.

They cannot do so under current laws.
They have the power to amend current laws.

Why is there such a difficulty adding two plus two? Sure, this present referendum is a bit of a mess because of it and there's nothing they can do about that now, but what they could do is table an amendment to the 1994 act which allows for the postponement of a referendum under more circumstances than just the calling of an election.
We all know this will not happen. Why?
This issue will undoubtedly come up again at some point in the future, and the government will once again have their hands tied by this 1994 act. I seem to remember this actually came up previously in the last few years with regard to a different referendum, I forget which one now.

They have the authority to amend existing laws - that's what they're there for, FFS. Why do they act like they are utterly helpless in the fact of situations like this?

I'll give you another brief example: We've heard a lot about the banking mess, and various situations surrounding it (the guarantee, bonuses, pensions, whether or not the unethical and damaging behavior undertaken by Seanie & co was actually against the law, etc).

Let's take that last example. It has been suggested that because of certain loopholes, some of the loan hiding which went on in Anglo may not actually be illegal, and therefore may not be punishable or preventable by law.

That's fair enough. Obviously you can't pass a law and apply it retroactively, that would create complete chaos in politics.
But again, they could come out and say "Look, this is a missed opportunity, but next week we'll publish legislation to cover any future possibility of something like this happening again."

I would accept that. I think a lot of Irish people would accept that, in fact. But it's not happening, and we all know it won't.

Why?
Why is there such a reluctance to take the bull by the horns and say "right, this law isn't working the way it should be, and it's causing us problems, so let's get rid of it, or change it to suit the new situations we find ourselves in"?

Why, in other words, does almost nothing actually get done in these situations?

I think you are missing the bigger picture here because you are failing to ask the most important question, why? Why was the original law drafted in a way (it wasn't done like that by accident) that prevents the postponement/cancellation of a referendum after it has been called, and was the reason for drafting it that way back then still valid now.

I believe it is a safeguard against governments cancelling important referendums they feel they could lose or not go their way. I feel putting in an "extraordinary circumstances clause" to allow postponement/cancellation would be foolish because "extraordinary circumstances" and crises can be generated quite easily.

hatrickpatrick · 13-11-2012 2:50am

Good loser wrote: »

The McKenna and Coughlan judgements were daft decisions by the Supreme Court.

Rather than reinforcing them ways should be found to get them reversed as quickly as possible. A referendum?

Why were they daft decisions? Equal airtime and a ban on public funding for one particular side seems very sensible to me. Public funding should not be used on political campaigns, and it obviously makes sense that both sides in a debate be afforded equal airtime to get their points across...?

Good loser · 18-11-2012 2:07am

hatrickpatrick wrote: »

Why were they daft decisions? Equal airtime and a ban on public funding for one particular side seems very sensible to me. Public funding should not be used on political campaigns, and it obviously makes sense that both sides in a debate be afforded equal airtime to get their points across...?

A referendum will always be proposed by an in-situ government. They will have a mandate. Oftentimes they will have the proposal in their manifesto.

Don't see any reason why they shouldn't use Govt money to campaign. After all they don't need opposition 'consent' to pass legislation.

Having identified a problem, the logical next step is to act to rectify it.

Comments