In moving the Second Reading of the Constitution (Amendment No. 6) Bill, 1927, it will be unnecessary for me to enter into any lengthy explanation. Its main objects are clear. It seeks, in the first place, to set at rest any doubts which may exist as to the meaning of the word "member" in Article 47 of the Constitution, wherein is conferred upon two-fifths of the members of Dáil Eireann or a majority of the members of Seanad Eireann the power to initiate steps for the submission of a Bill passed by the Oireachtas to a referendum.
I think it is abundantly clear that this power was intended to belong to and could properly be held only by members who have undertaken the responsibility of membership. It would be absurd to suggest that after a measure had been carefully considered in this House and in, the Senate it should be open to persons, who take such a light view of their responsibilities as public representatives that they absent themselves from discussions in this House, to enjoy the privilege of obstructing the business of the nation by lightheartedly signing their names to a petition, and thus initiating machinery which would hold up important measures for nine months, and put the country to the expense of a referendum. It is only necessary to point out that if this were the accepted view it would be possible for any party of sixty-two abstentionists to remain outside the House and prevent it from carrying on its work by the systematic presentation of petition after petition.
The second aim of the Bill is to delete the provisions for the initiative contained in the Constitution. The first sentence of Article 48 reads:—
"The Oireachtas may provide for the initiation by the people of proposals for laws or constitutional amendments...."
Even if this sentence were not in the Constitution the Oireachtas could, of course, provide for the initiation by the people of proposals for laws, since the Oireachtas can do anything which is not forbidden by the Constitution. It, therefore, follows, as was pointed out by the Constitution Committee in its report, that notwithstanding the deletion of Article 48 it would still be open to the legislature to provide for the initiation of proposals for laws or amendments of the Constitution by the people. Article 48 may be further considered under two heads, (1) whether there is any machinery in the State, Courts or otherwise, which can compel the Oireachtas to take a particular action, and (2) whether the Article itself is not on its face and on examination completely unworkable. The second sentence of the Article reads:
"Should the Oireachtas fail to make such provision within two years, it shall on the petition of not less than seventy-five thousand voters on the register, of whom not more than fifteen thousand shall be voters in any one constituency, either make such provisions or submit the question to the people for decision in accordance with the ordinary regulations governing the Referendum...."
Something is, apparently, mandatory upon the Oireachtas. How can the Oireachtas be compelled to take action? In the first place, is there any legal process by which the Courts could be made acquainted with the fact that, following a petition of seventy-five thousand voters, the Oireachtas had failed to make provisions for the initiative? And have the courts, in default of specific provision to that effect, any power to make an order that the Parliament should do certain things? And if the Courts did make such an order, is there any machinery in the State for compelling the action to be taken? A declaration by the Courts would, presumably, be in the same wording as Article 48 and would carry matters no further.
Considering the Article from the practical point of view as to how it would work, a great many points will arise. More than two years having elapsed since the Constitution came into force, there appears to be a provision by which seventy-five thousand voters on the register can present a petition to the Oireachtas asking for legislative provisions to be made for the initiative. To whom would the petition be directed and delivered? Presumably to the Clerk of the two Houses for the two Chairmen, and, assuming good-will on the part of the two Chairmen, how could it be established that the seventy-five thousand signatures are genuine, that the people who have signed their names are, in fact, on the register, and so on? If proof of all this were undertaken it would take a considerable amount of time, and would have to be done by some machinery not directly under the control of the Chairman of either House, and might take two or three years to carry out. After the lapse of that period, if it were established to the satisfaction of some competent authority that the seventy-five thousand signatures, or some of them, were not genuine, presumably the whole thing would fall through, and no legal remedy would appear to be available. If it were agreed by somebody that the signatures were genuine— the situation from the point of view of the petitioners would not be improved, because it would be quite simple for the Oireachtas to carry on until a General Election, without having made any provision for the initiative.
At what point after the petition does it become apparent that the Oireachtas has not made provision for the initiative? There is no time limit mentioned in Article 48. The Oireachtas might take two or three years considering a Bill or Bills providing for the initiative. During all that time no referendum could possibly take place on the question of whether there should or should not be provision for the initiative. Assuming that it is established that no provisions have been made by the Oireachtas, and that a question must be submitted to the people in accordance with the ordinary regulations governing the referendum, a new difficulty arises. There are no regulations. There is no machinery for compelling anybody to make regulations.
Now, assuming that as a result of a petition the Oireachtas did provide for initiation by the people of legislation under the condition set out in the third sentence of Article 48, it appears that fifty thousand voters on the register could send forward a proposal. What does "proposal" mean? Does it mean a Bill, and must it be simply accepted or rejected? Article 48 contains a provision that if the proposal is rejected it shall be submitted to the people for decision. Does that mean that a Bill drafted by somebody, some person or persons unknown, supported by fifty thousand voters, must either be passed in the form in which it reaches the Oireachtas or rejected, and, if rejected, must it, in the form in which it was presented originally, be submitted to referendum? Such a scheme is plainly ridiculous. We have abundant experience to prove that the drafting of proposals for legislation, commonly called Bills, is a matter of extreme difficulty. Yet, if this Article has any meaning at all, the Oireachtas has to accept or reject a proposal, no matter how it is drafted, provided that fifty thousand voters on the register say they are in favour of it, and if the Oireachtas rejects it, it must be submitted to a referendum.
The urgency of the present measure arises from an attempt to delude the public that the initiative provides a means of removing the Oath from the Constitution. That is clearly not the case. The Article contains specific provision that any proposal enacted in this manner shall be subject to the provisions respecting ordinary legislation, or amendments of the Constitution, as the case may be. Hence, if all the cumbrous machinery of the Article could be gone through, with its double reference to the people, and with the enormous expense which this would entail, and if there emerged a Bill deleting Article 17, this Bill being repugnant to Article 4 of the Treaty, would be absolutely void and inoperative.
While the value of the initiation machinery foreshadowed in Article 48 is in any circumstances very doubtful, it is clearly wrong to allow a condition of affairs to remain where the presence of this Article is being used to fool the populace, to delude them into the belief that it can be used for a purpose for which it cannot be used, as the gentlemen who are exploiting it know full well. I move the Second Reading.