Referendum 39th and 40th Amendments to the Constitution Statement from Senator Michael McDowell

McDowell Condemns O’Gorman’s Department’s FOI Cover Up

“The public interest requires keeping the public in the dark”

Date: Monday, 12th February 2024

Minister Roderic O’Gorman’s Department has now decided that it would not be in the “public interest” to publish the minutes of the government’s Interdepartmental Group meetings which considered the proposed amendments to the Constitution, over the course of the last year 2023.

The Department has refused access to all 64 pages of notes and minutes discussing the consequences of the amendments including tax laws, social welfare laws, pension laws, allocation of family assets, alimony and allowance including the laws in relation to family reunification for asylum seekers. The withheld records include minutes of 16 meetings of the cross-departmental group. The records also include correspondence with an NGO named “Treoir”.

The Department’s flawed opinion is that to allow access and publish these minutes would be “premature” and might impinge on “the integrity and viability of the referendums”, as “public officials could be seen to promote” referendum outcomes in breach of what the Departments says are the McKenna/McCrystal Principles.

The Department apparently wishes to suppress all information in the minutes of the cross-departmental meetings until after the people have voted in the referendum.

Are the people not entitled to know what the Department of Finance sees as the likely consequences for tax and pension law? Are the people not entitled to know what the implications are giving much wider rights for family reunification to asylum seekers and immigrants?

False Reliance on the Electoral Commission

The Department says that ?the function of the Electoral Commission to “impartial and accurate information” to the public.

But the Electoral Commission cannot tell the public what the consequences of the referendums will be for tax laws for family law relating to divisions of family homes, businesses, farms and pension law, criminal law, and succession law to name but some.

All the Electoral Commission can do is to tell voters that the courts will have to decide “hard cases” in future disputes.

Cover Up

I reject the Department’s flawed reasoning for refusing public access to the process that led to these constitutional amendments being rushed through the Dáil and Seanad by Minister O’Gorman using guillotine motions to prevent proper debate.

The Department’s decision perverts the democratic process which requires giving the people all the facts before they vote in a referendum.

As one leading, legal authority on Freedom of Information said:

“The public is only marginally concerned with reasons supporting a policy which an agency has rejected…in contrast the public is vitally concerned with the reasons that did supply the basis for an agency policy actually adapted.” There is no justification for this departmental cover-up of the processes and considerations that have led to these flawed referendum proposals.