I move: "That the Bill be now read a Second Time."
The Sixth Progress Report by The All-Party Oireachtas Committee on the Constitution on the referendum made a number of recommendations on the provision of information at referenda. Principal among these were proposals to amend the functions of a Referendum Commission including removing the role of presenting the arguments for and against a proposal, providing a new power to allocate finance equally among pro and anti sides and a recommendation to provide additional functions to promote voter participation. These and other matters have been considered by the Government which have decided to bring forward this short Bill to implement a number of the recommendations in the all-party report.
Before I deal with the provisions of the Bill, I will make a number of general points regarding the conduct of referenda. Referenda are important. They provide a mechanism to change the fundamental law of the State and the electorate, as guardians of that law, has a crucial role to play. That any amendment to the Constitution requires a referendum offers the electorate the opportunity to express its opinion on political and constitutional issues.
Since 1937, the Constitution has been amended following a referendum on 19 different proposals. Six proposals have been rejected, most recently regarding the Treaty of Nice, demonstrating that the electorate can be discerning on issues put before it. Apathy, low turn-out and an under-informed electorate, perhaps leading to a large number of spoilt votes, serve only to devalue the primacy of the Constitution. The arrangements for referenda must provide for the information needs of voters and, at the same time, encourage voter participation to the greatest extent possible.
There have been changes in the conduct of referendum campaigns over the years, most noticeably in terms of the tendency for cross-party support for proposals and an increase in interest group participation. At a statutory level, there have also been developments. In terms of the statutory provision of information, the Referendum Act, 1994, provides: that copies of the Constitution amendment Bill may be inspected or obtained, free of charge, at any post office; a statement, prescribed by resolution of each House of the Oireachtas, is printed on polling cards, sent to every elector, and displayed on posters at polling stations; the order of the Minister appointing polling day must be published in Iris Oifigiúil; public notice must be given by the local returning officer for each constituency stating the date and hours of polling and indicating that copies of the Constitution amendment Bill may be inspected or obtained, free, at any post office; and a polling card must be sent to each elector, other than postal and special voters, indicating the elector's number on the register, the location of the polling station and the date and hours of voting.
The provisions under the 1994 Act are, in a sense, the formal statutory requirements regarding informing the public about the polling day and hours of polling, together with the terms of the proposed amendment. They could probably be best characterised as basic information provisions which, although necessary, are unlikely to impact decisively in terms of informing the public.
The provision of information was developed at the divorce, bail and Cabinet confidentiality referenda. A number of ad hoc commissions, comprised of the Ombudsman, the Clerk of the Dáil and the Clerk of the Seanad, were established to oversee the preparation of statements setting out the arguments for and against the proposal at each referendum.
Against the legal backdrop of the McKenna judgments the Referendum Act, 1998, was enacted. It was designed to put the ad hoc commissions on a statutory footing and to further advance the issue of providing information to the electorate. Specifically, the Act provided for the establishment of an independent statutory Referendum Commission whose primary role is to explain the subject matter of the referendum to the population at large, as simply and effectively as possible, while ensuring that the arguments of those against the proposed amendment and those in favour are put forward in a way that is fair to all interests concerned.
The question that needs to be addressed following the developments that I have outlined is whether the operation of referendum information campaigns, especially informing the electorate of the proposal and motivating them to express their opinion at the ballot box, has improved. The answer, or at least part of it, is that despite the endeavours of ad hoc commissions and the Referendum Commission, turnout and participation have been disappointing and there is a consensus that the manner in which referendum information campaigns are conducted is unsatisfactory.
Clearly, there is no perfect solution to this problem. During the debate on the Referendum Act, 1998 the point was made that each change was an attempt to improve matters and if the changes were found wanting, then the issue would be revisited. Different types of solutions are pro vided for internationally, but none are perfect. In Ireland we must have regard to the Constitution and Supreme Court judgments in considering possible solutions.
The Referendum Commission, in its report on the referenda on the Amsterdam Treaty and Northern Ireland Agreement, referred to the difficulty in getting the message across to the electorate as the following passage from the report indicates:
There was a clear pattern which suggested that the average person has become quite lazy when it means reading or helping oneself to information and there is a high level of reliance on media broadcasts rather than the written word. The effect of TV and radio coverage made them at least feel informed and exposed them to the issues. Those who did take the trouble to read the written material scored it highly in terms of balance and fairness (62%) and for its usefulness in decision making (53%). It was also felt to be easy to read and understand and gave an unbiased view of the issues.
I wish to state on behalf of the Government that the amendments proposed in the Bill are not a reflection on the commission members or their staff, who have carried out their functions in a satisfactory manner for the six referenda for which they have been established. This is especially true when one has regard to the complexity of the referendum proposals relating to the EU and the subject matter of the other proposals where engaging the electorate was always likely to be difficult.
In summary, the impact of the statutory provision of information under the Referendum Act, 1994, is small. The McKenna judgment has narrowed the parameters within which Government can promote, with public funds, its views on a proposal. The rationale of the Coughlan judgment is that RTE breaches its statutory duty of objectivity and impartiality if it allows political parties and other bodies, which support a particular referendum outcome, a considerable advantage in the broadcasting of partisan material. The format of information provision via the work of the ad hoc commissions and the Referendum Commission has been criticised as anodyne and ineffective notwithstanding the valuable work undertaken by these bodies in accordance with their non-statutory and statutory briefs. The Bill before the House addresses a number of these issues and I will now outline the changes proposed.
The Bill proposes to amend the Referendum Act, 1998, and contains two sections. Section 2 is a standard provision dealing with the Short Title and construction while section 1 provides for the substantive change.
Section 1(a) replaces section 3(1) of the Referendum Act, 1998, which sets out the functions of a Referendum Commission. This section removes the current functions available to the Referendum Commission to prepare statements setting out the arguments for and against a proposal and to foster and promote debate. It also provides a new function of promoting awareness of the referendum, including encouraging the electorate to vote.
One of the aspects of the work of the Referendum Commission which has been subject to most criticism has been its function to present arguments for and against a proposal. This provision was drafted as a result of the McKenna judgment and sought to bring equity of approach in terms of the balanced provision of information. However, there is general agreement that the provision has not been a total success. The alignment of arguments for and against a proposal in an almost sterilised format has not encouraged debate and can result in seemingly equal weightings been given to alternative arguments which do not merit equivalent comparison, in any rational assessment.
The Oireachtas All-Party Committee on the Constitution refers to this in its report in the following terms:
The committee agrees that the commission should provide information but does not believe that it should have any direct responsibility for putting the arguments for and against a referendum proposal. It is understandable that such a function should have been given to the commission in response to the McKenna judgment. However, the political needs of a referendum cannot be met by setting before the electorate two lists of arguments, all of them detached from the contexts that give them sense and weight, in an effort to be even-handed. That leads to leaden rather than lively presentation. It also leads to confusion because while the voter must arrive at a summative judgment, he or she has no means of measuring the weight to be given to each of the arguments presented in this way. The engagement of the commission directly in the campaign tends to weaken the sense that the political parties and the interest groups should be the protagonists in the debate.
It has been decided, therefore, to remove this function from future commissions, who will nonetheless retain their powers to prepare statements containing a general explanation of the subject matter of the proposal and the power to publish and distribute such information as they see fit.
The second amendment provides for a new power for referendum commissions to promote public awareness of the referendum and to encourage as many people as possible to vote. It is difficult to examine the problem of referendum information and turnout in isolation from the wider problem of voter turnout and indifference towards the political system. Political participation generally has been declining and the downturn in interest in referendums cannot be seen separately from the more general trend. An independent body such as a referendum commission is ideally placed to undertake these additional functions. The format of the information campaigns will be a matter for each commission, which will continue to have all the powers as it considers necessary for the performance of its functions under the Referendum Act, 1998.
The amendments at section 1(b) and (c) are consequential on the change of functions proposed in paragraph (a). Paragraph (b) repeals section 6 of the Referendum Act, 1998, which provides that a person may make a submission to the commission about the proposal of the subject of the referendum. This section is directly related to the function of preparing a statement of arguments for and against the proposal in the existing paragraph (b) of subsection (1) and it will not be required following the earlier amendment. Paragraph (c) makes consequential amendments to section 8 of the 1998 Act, which concerns the publication of notices by a referendum commission. Paragraph (a) of the existing section 8 refers to notices informing people that they can make submissions to a commission. The other two amendments are consequential.
I refer to the proposal in the Oireachtas All-Party Committee report recommending the allocation of funds to campaign groups promoting both sides during a referendum. The Government has decided not to proceed with the recommendation at this stage. It is a radical proposal which has been raised before but which requires careful examination in the context of the relevant Supreme Court judgments and the difficulties with the practical application of such a scheme in the context of those judgments. These difficulties have been acknowledged by the 1998 Referendum Commission in their report on the Amsterdam and Northern Ireland referendums. In that report the commission commented on the introduction of such a scheme as follows:
From its experience, the commission would see considerable difficulties in ensuring compliance with the McKenna [judgment] and avoiding litigation.
Many matters need to be addressed. How should the funds be divided? Should both sides be funded equally or at the discretion of the commission based on statutory criteria? What would be the information role of the referendum commission? Should a commission with a function of funding both sides be activated in all referendums? What conditions should be attached to such funding without interfering with a group's advocacy strategy? Would political parties be able to avail of finance? Could an individual get funding? How large would a group have to be to receive funding? How is the taxpayers' money to be accounted for? Are there different levels of information and public debate requirements?
We might ask even more fundamental questions. Would the electorate be any the wiser after being deluged with conflicting information? Would more information prove to be a greater turn-off for the electorate? Would the taxpayer be in favour of the use of their money by the Government, political parties, pressure groups and individuals to persuade them to vote yes or no? I raise these questions not to be obstructive, but simply to highlight some of the complexities that would require careful consideration if such a scheme was to be adopted. I note also that the Oireachtas All-Party Committee on the Constitution had difficulty with this matter. A minority of the committee took the view that funds should be divided equally between the two sides as a matter of principle, while a majority were of the view that the division should be on the basis of what was equitable rather than what was equal.
In the final analysis, the quality of the judgment that the electorate expresses at a referendum is, among other things, a function of the quality of the information available to them and this Bill will allow referendum commissions to focus on the provision of information in an objective way rather than an approach based on arguments for and against, which has proved to be problematic. The Bill will also seek to encourage awareness and political participation by providing future referendum commissions with a specific remit in this area. I commend the Bill to the House.