The Lisbon referendum: thoughts about Cóir and Intel

2 September, 2009

I consistently argue that there is a perfectly respectable basis on which to vote No in the upcoming Lisbon referendum, as in this post.  But there is such a plethora of extremists and crackpots who are on the same side of the fence, that it makes it an uncomfortable position to maintain.  And with every passing day, I find it harder to raise my head above the parapet on this issue. 

The last straw is probably the new campaign by Cóir, which includes some of the crassest and idiotic posters I have yet seen.  For ignorance and fallaciousness, it’s hard to beat the one that says “€1.84 Minimum Wage after Lisbon?”.   Equally disappointing was the inadequate reply by Business for Europe, the umbrella group of over 50 business and professional organisations campaigning for a yes vote: they failed to directly tackle the misunderstanding (to use a polite word), which stems from the Posting of Workers Directive, its transposition in certain member states and the absence of a statutory minimum wage in Sweden (for instance), and left an open goal by simply stating that Ireland sets its own minimum wage without interference from Europe.  They obviously think that voters’ intelligence is not up to dealing with the slightly complex issues involved.

So now we can choose between the patronising guff of the Yes lot, and the Big Lie approach of the headbangers on the No side.

But even as my resistance to Lisbon 2 weakens, and my rage against the poor standard of the debate increases, I have to admit that there is no shortage of interesting issues thrown up by the campaign.

One of the more interesting developments is the expensive campaign by Intel, a publicly quoted company ultimately majority-owned by US shareholders, designed to persuade Irish citizens to vote Yes.  This makes me slightly uncomfortable, just as Declan Ganley’s source of funding was a concern last year.

The McKenna judgement – McKenna v An Taoiseach (No2) [1995]  – means that the provision and use of public funding in order to seek to secure the passage of a constitutional amendment is unconstitutional.   Due to the important role of the people in the referendum process, Chief Justice Hamilton reached the conclusion that they were, by virtue of the democratic nature of the State, “entitled to be permitted to reach their decision free from unauthorised interference by any of the organs of the State…”   However there is no barrier at present to a foreign Government (or indeed a foreign company or individual) interfering in a referendum by actively promoting one particular side of the argument.

This is despite the Electoral (Amendment) Act 2001, which prohibited the acceptance of foreign donations by political parties or Oireachtas members or MEPs (or by candidates for such positions), and the Electoral (Amendment) Act, 2001 which extended the limitations on donations to political parties and candidates to donations to a new class of “third parties” – basically organised pressure groups who accept funds for a campaign.

So a foreign individual or body corporate would be prohibited, it would seem, from giving money to an organisation which is lobbying for a “Yes” vote, but can spend an unlimited amount of its own money directly trying to persuade voters how to vote.    Intel Ireland could presumably make a donation to one of the “Yes” lobby groups (and it may well have done so) as the prohibition on foreign donations does not extend to local divisions or subsidiaries of foreign companies; the only prohibition is on “a donation from a body corporate or unincorporated body of persons which does not keep an office in the island of Ireland from which one or more of its principal activities is directed”.

A few years ago there was a fuss made (and in my opinion rightly so) about the Centre for Public Inquiry; one of the main issues was that money from outside Ireland was funding a private body set up to investigate various matters and influence the public accordingly. There are some similarities here.

The Standards in Public Office Commission has been seeking a change in the governing legislation for some time; in its 2007 Annual Report it gave the Minister a gentle nudge again: “The issue of third parties and their activities also featured in relation to the referendum on the Treaty of Lisbon. An issue which arose was the extent to which the provisions of the legislation would apply to individuals or groups campaigning at the referendum who are not based in this jurisdiction. The Standards Commission received legal advice which suggests that such individuals/groups are not subject to the Electoral Acts even if they have accepted donations for the purposes of funding a campaign on the referendum. The Standards Commission has also been advised that individuals/groups who use only their own resources to fund a referendum campaign do not come within the definition of third parties. The Standards Commission wrote to the Minister for the Environment, Heritage and Local Government in March 2008 in relation to the advice which it had received and to inform him of how it intended to apply the provisions of the Electoral Acts relating to third parties at the referendum on the Treaty of Lisbon.”

Intel is a respectable and generally transparent company, and probably would have acted in the same way even if they were not currently appealing a €1 billion fine from the EU Commission for alleged anti-competitive behaviour.  But what if, say, a US arms manufacturer, or a Russian oil company, decided to mount a massive campaign to influence the outcome of a particular referendum?  At present this would seem to be entirely legitimate as far as our electoral legislation is concerned.

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