SF and FF: Let's have a referendum whether we need one or not

[ProfCalculus]

So no surprises that SF are looking for a referendum whether it's constitutionally necessary or not. They've never let minor matters like the structural rules of our democracy get in the way of their policies.

But, for me, it's an eyebrow raiser that FF are adopting such a blatantly populist and legally indefensible stance.

We only have referendums in this country if the legal view is taken (be that by the AG or the SC) that a particular change in the law would necessitate amendment of the Consitution....

.... something McGrath and Calleary accepted as correct on the airwaves in the last day or two.

By siding with the ludicrous SF position, Martin has gone on a very ill-judged solo run. Oh to have been a fly on the wall when he was breaking the news to his colleagues that they would be adopting the same cringeingly populist stance as SF.

Obvious difficulties with this stance:

1. It's legally wrong as far as this jurisdiction is concerned.

2. Assuming 1. can be ignored/surmounted, how do you decide how "weighty" a decision needs to be before it is put before the people? For example, if the ULA were to demand a referendum on say, privatisation of certain State industries, would FF agree that such a decision should be put before the people?

3. What's the point of a parliamentary democracy if certain decisions satisfying undetermined criteria are deemed too significant to be decided upon by democratically elected parliamentarians (and yet not sufficiently significant such that the Constitution might need to be changed) but, rather, can only be decided upon by the people?

4. If a referendum is held notwithstanding that the legal finding is made that a law on its subject matter would not affect the Constitution one way or the other, and the result is a defeat, there would be nothing to stop the government enacting legislation that ignores the outcome of the referendum. Although unlikely to happen, the mere possibility that this could happen is clearly undesirable.

5. Even if a referendum is held on this occasion on the basis suggested by FF, the party will be between a rock and a hard place. Campaign for No and they'll run counter to their established approach to Europe; campaign for Yes and SF will dance all over them.

All that hassle for a bit of short term attention.

If this is the best Martin can do to in response to FF's outflanking by SF, his party needs to ditch him in a hurry.

***NB: With thanks to Con Gallagher, the little known (or at least news to me) Art. 27 procedure does, in fact, provide a legal basis for the SF/FF position. It now looks like that route to a referendum is being sniffed at by Thomas Pringle and others (further details of the procedure are at post #23). However, whatever about SF's position, I still hold that Martin's position is a just a little on the rich side and will ultimately do him more harm than good. Nevertheless, a lot of the wind has gone out of the sails of my original post

[Con Gallagher]

Our two most recent referenda targeted the pay of 147 public servants and the other sought to give more opportunities to politicians to avoid their day jobs but gain more publicity. Were either of these more important than a fiscal handcuff/austerity treaty/loss of sovereignty?

[ProfCalculus]

Our two most recent referenda targeted the pay of 147 public servants and the other sought to give more opportunities to politicians to avoid their day jobs but gain more publicity. We're either of these more important than a fiscal handcuff/austerity treaty/loss of sovereignty?

Probably not... but each measure would have necessitated amendment of the Constitution in order to be passed into law.

There is simply no legal basis for holding a referendum if the AG or SC don't advise that its subject matter would require an amendment to the Constitution.

[Con Gallagher]

There is simply no legal basis for holding a referendum if the AG or SC don't advise that its subject matter would require an amendment to the Constitution.

You are simply wrong, article 47 envisages two types of referenda; one to amend the constitution, and a proposal other than one to amend the constitution eg a referendum following a petition under article 27 (ie a matter of public importance).

Every proposal, other than a proposal to amend the Constitution, which is submitted by Referendum to the decision of the people shall be held to have been vetoed by the people if a majority of the votes cast at such Referendum shall have been cast against its enactment into law and if the votes so cast against its enactment into law shall have amounted to not less than thirty-three and one-third per cent. of the voters on the register.
Every proposal, other than a proposal to amend the Constitution, which is submitted by Referendum to the decision of the people shall for the purposes of Article 27 hereof be held to have been approved by the people unless vetoed by them in accordance with the provisions of the foregoing sub-section of this section.

[Passer-by]

There is simply no legal basis for holding a referendum if the AG or SC don't advise that its subject matter would require an amendment to the Constitution.

The simplest thing in such a case might for the government to announce that it was going to hold one anyway but it was going to advocate a No vote on the basis that the constitution was too important to be messed around with for spurious reasons.

Should the proposed change fail, it would then be free to claim the electorate agreed with its position and ratify the treaty via the Oireachtas. Should the electorate vote Yes, well they ignored the advice of the government but just okayed allowing the Oireachtas to ratify the treaty...

All very "democratic" but legally utterly pointless.

[jetttxyz]

There is simply no legal basis for holding a referendum if the AG or SC don't advise that its subject matter would require an amendment to the Constitution.

True.

SF say they will appeal the decision if it is one that advises no referendum.

An aside. The SBP poll say 72%, of those polled, want a referendum.

SF will attempt to represent these 72% in the event of an appeal.

[nonpartyboy]

Lets just say the AG says no referendum is required and SF as they will take a case to the courts and win, surely then the AG will have to go aswell.

[Lonewolfe]

So no surprises that SF are looking for a referendum whether it's constitutionally necessary or not. They've never let minor matters like the structural rules of our democracy get in the way of their policies.

But, for me, it's an eyebrow raiser that FF are adopting such a blatantly populist and legally indefensible stance.

We only have referendums in this country if the legal view is taken (be that by the AG or the SC) that a particular change in the law would necessitate amendment of the Consitution....

.... something McGrath and Calleary accepted as correct on the airwaves in the last day or two.

By siding with the ludicrous SF position, Martin has gone on a very ill-judged solo run. Oh to have been a fly on the wall when he was breaking the news to his colleagues that they would be adopting the same cringeingly populist stance as SF.

Obvious difficulties with this stance:

1. It's legally wrong as far as this jurisdiction is concerned.

2. Assuming 1. can be ignored/surmounted, how do you decide how "weighty" a decision needs to be before it is put before the people? For example, if the ULA were to demand a referendum on say, privatisation of certain State industries, would FF agree that such a decision should be put before the people?

3. What's the point of a parliamentary democracy if certain decisions satisfying undetermined criteria are deemed too significant to be decided upon by democratically elected parliamentarians (and yet not sufficiently significant such that the Constitution might need to be changed) but, rather, can only be decided upon by the people?

4. If a referendum is held notwithstanding that the legal finding is made that a law on its subject matter would not affect the Constitution one way or the other, and the result is a defeat, there would be nothing to stop the government enacting legislation that ignores the outcome of the referendum. Although unlikely to happen, the mere possibility that this could happen is clearly undesirable.

5. Even if a referendum is held on this occasion on the basis suggested by FF, the party will be between a rock and a hard place. Campaign for No and they'll run counter to their established approach to Europe; campaign for Yes and SF will dance all over them.

All that hassle for a bit of short term attention.

If this is the best Martin can do to in response to FF's outflanking by SF, his party needs to ditch him in a hurry.

Why are you so opposed to the plebs having a say Professor?

[Con Gallagher]

Lets just say the AG says no referendum is required and SF as they will take a case to the courts and win, surely then the AG will have to go aswell.

Go to court to oppose the sf challenge, yes. Go (as in resign), absolutely not (lawyers advise, the courts decide).

[spidermom]

FF didn't want to hold a by-election FFS!!....populist??

LMAO!!..