The question above is mainly theoretical, it’s important to say, because the chances of the Irish political establishment as currently constituted holding another referendum on immigration are about as close to zero as one can get without actually touching zero. Regular readers might remember, in fact, that up until recently any political effort to do with immigration referendums was entirely devoted to undoing the results of the last one – the 2004 vote which, in a landslide, abolished the automatic right to birthright citizenship. Labour, the Social Democrats, the Greens, and many others want to overturn that vote, as they technically can, by passing a law through the Dáil.
Nevertheless, campaigners and local residents in East Wall, in the context of the ongoing protests there against a migrant accommodation centre imposed on them by Government, are now calling for a referendum on immigration, with the clear intent, it would seem, of enacting a policy or constitutional amendment which would prevent a similar situation from arising in the future.
But what are the theoretical options for such a referendum?
Clearly, the most pressing reason for Ireland’s current immigration levels – at least immigration of people seeking asylum, as is the case in East Wall – is, per the Government, Ireland’s EU law obligations as interpreted by the Government. These obligations arise under EU directive 2001/55, from which some other countries, like Denmark, have an opt-out. Were Ireland to seek such an opt-out, which is unlikely, it would not require a referendum to do so – it would simply be a matter of negotiating one, or indeed unilaterally declaring our decision to no longer participate in that directive.
Perhaps a simpler idea might simply be a constitutional declaration, along the lines of “the state may not enter into international agreements which restrict its ability to refuse the entry of any person to the state”.
The problem there is twofold: One, it would shut the stable door after the proverbial horse was already rounding the final bend of the Grand National. You cannot retrospectively void existing treaties with a referendum, and Ireland already has freedom of movement for EU citizens enshrined in both EU law, and domestic law. It would also be a referendum with a real risk of failure, because I suspect, free movement as it relates to moving within Europe for work, and holidays, remains very popular.
A third option would be to specify, in the constitution, some limit on the number of people who may seek refuge here every year. “The State May not admit more than 20,000 people annually for the purposes of seeking asylum”.
There are many problems with this one, though: First, it would run into the same difficulties as the first option above, being a repudiation of our existing EU obligations, and therefore not possible to apply retroactively. Second, it would probably divide those campaigning for it’s adoption, with some believing that the number in the proposal was too high. Third, there is the possibility that even were both these problems overcome, a future Government might have very good reason to change the number, and be unable to do so.
Ultimately, to abolish EU obligations, you probably need to go down the Irexit road, and follow the UK on its path. And that, I suspect, will not pass in my lifetime.
The fourth potential option is some kind of planning referendum, or use of buildings referendum, that simply made it illegal for the Government to accommodate people in buildings not originally designed for the purpose of accommodation. This would solve the East Wall problem, but not really anywhere else, and might simply lead to Government commandeering hotels. Also, there’s the other issue, whereby Government’s hands would also be tied in the event of a natural disaster. Imagine a situation where a Tsunami hits the west coast and tens of thousands flee east: In those circumstances, we might not want a constitutional prohibition on putting people up in tents in Croke Park.
The other option, and the one with fewest drawbacks, as I see it, is not a referendum at all, but a plebiscite: A vote not on the constitution, but on policy. The Government is entirely free to hold such votes, but it has never been the practice in Ireland to do so. Also, such a vote would be entirely non-binding, just like the Brexit referendum in the UK was technically non-binding.
At the core of the calls for a referendum, I think, is the basic recognition of a truth, which is that on immigration, the Government and political establishment more broadly is deeply out of sync with a big section of the public. The 2005 referendum, a landslide, is evidence of that phenomenon in action. But that referendum had a very specific objective, and a targeted one, which made it viable. The political establishment is not likely to help the residents of East Wall by developing a specific, targeted, viable referendum for them, of their own accord. This is a campaign that, if it wants a referendum, needs to pick a specific, viable objective, and build support for it. Otherwise, the establishment will run rings around them.