I move that the Bill be now read a Second Time. The Constitution provides that, in the prescribed circumstances, certain legislative proposals may be submitted to the general body of the electorate for final decision. It defines the proposals that must or may be submitted to the people by way of referendum and, in the case of ordinary legislative proposals, limits the time within which the decision of the people must be given. Proposals submitted to the people may be either constitutional amendments or proposals for ordinary legislation other than a Money Bill or a Bill which has been passed by both Houses of the Oireachtas.
In Section 2, the definition section of the measure now before the House, definitions are given distinguishing a referendum taken upon a proposal to amend the Constitution from one taken upon an ordinary legislative proposal. The first is referred to throughout the Bill as a constitutional referendum and the second as an ordinary referendum. A constitutional amendment will be held to be approved if the majority of the votes passed at the referendum which must be taken upon it be in favour of it. A proposal for ordinary legislation will be held to have been vetoed if the majority of the votes be cast against its enactment, subject, however, to the over-riding condition that this amounts to not less than one-third of the total register. Article 47 (4) prescribes that the taking of referenda shall be regulated by law in accordance with the Constitution. The measure I am now submitting to the House fulfils that prescript. It provides for that regulation, the taking of a referendum by law.
Obviously, the first step in taking a referendum is to appoint a person who shall be responsible for the proper conduct of the whole proceedings. This is to be done under Section 6 in Part I, which provides for the appointment of a referendum returning officer. One of the duties of this officer will be to prepare and publish a certificate of the result of the voting at a referendum. As first issued by the referendum returning officer, this certificate is provisional only. If it be not challenged or upset on a petition, it automatically becomes final and conclusive evidence of the result of the referendum. The electoral registers are prepared annually by the registration officers for the several constituencies and Section 7, which is also in Part I, requires these registration officers to give to the referendum returning officer the information he needs for the preparation of his certificate as to the numbers of electors on the register. Sub-section 3 of Section 7 further requires every registration officer to inform the referendum returning officer of any alteration which he has been called upon to make in the register for which he is responsible in order to give effect to decisions of law affecting the right to be on the register, to correct errors in its compilation, or for other sufficient reasons.
Part II of the Bill and the First Schedule detail the procedure to be followed at a referendum.
This procedure follows as closely as possible the procedure at a general election of members to Dáil Eireann. Under Sections 8 and 10, when the Government determines that a referendum is to be taken on a particular proposal, that decision will be published in Iris Oifigiúil, and, within one week, the Minister for Local Govenment, the Minister named in the Bill, will by order appoint a polling day. The polling day must not be less than 30 days or more than 90 days after the date of the order.
The terms of sub-section (1) of Section 8 have been questioned on the ground that they constitute an encroachment upon the provisions of the Constitution. The objection appears to be based on the contention that when the conditions necessary to secure a constitutional referendum have been fulfilled, the measure must, under the Constitution, be referred automatically to the people for decision, whereas the sub-section in question provides that before such reference is made, the Government shall determine whether the proposal concerned is to proceed to enactment, or whether its further progress to the Statute Book is to be suspended or discontinued. The issue of repugnancy is referred to a particular tribunal and need not delay us long here, since, even if raised, it cannot be settled until the Bill has passed through the Oireachtas, but I should like to say that the point in question was adverted to and was very carefully considered in the drafting of this Bill. In regard to it, I have been advised that the taking of a referendum does not automatically follow on the passage through the Oireachtas of a Bill to amend the Constitution. A decision has to be made subsequently as to whether a proposal is to proceed to the final and effectively conclusive stage of consulting the people, or whether it is to be permitted to lapse. The sub-sections which have been criticised have been drafted to provide for this accordingly.
Section 9 gives power to the Minister to appoint the same polling day for a general election and for the taking of a referendum upon a proposal to amend the Constitution, should the need for such referendum arise. In this connection, Section 15 provides that wherever two or more proposals are to be made the subject of referenda, the ballot papers must be so framed that a voter will be able to record a separate vote in respect of each such proposal. That section furthermore prescribes that, in the case of ordinary referenda, the proposals shall be set out upon the ballot paper in the same terms as nearly as may be as they have been stated in the writing sent to the Taoiseach under the hand and seal of the President in accordance with Article 27 (4) of the Constitution. In the case of a constitutional referendum, the proposal in issue is to be stated as nearly as may be in the same terms as it was set out in the Bill which was passed, or deemed to have been passed, by both Houses of the Oireachtas.
This proposal will, in fact, have been set out in the preamble to the Bill to amend the Constitution. Section 11 of the Bill provides that the poll is to be taken on one and the same day throughout the State. It will be taken by constituencies and will be conducted by the local returning officers in accordance inter alia with the rules set out in the First Schedule to the Bill. The polling hours will be from 9 a.m. to 9 p.m. Under Section 13, the electorate will be confined to persons entitled to vote at Dáil elections and such persons must have attained the age of 21. Section 21 accordingly enables the presiding officer at a polling booth to put the questions necessary to elicit whether a person voting has reached this age or not. The voting will take place at the polling places fixed for Dáil elections, and, as Section 14 prescribes, will be by ballot which, of course, will be secret. The votes are to be counted locally in accordance with rules Nos. 24 to 29, inclusive, which are set out in the First Schedule to the Bill. The returns of the local counting are to be sent to the referendum returning officer who, under Section 30, will summarise them and issue a provisional certificate giving particulars of the voting at the referendum, and the result. That certificate will become final if and when the referendum returning officer is informed by the Master of the High Court that no petition has been presented within the time specified in the Act, or that every petition presented in respect of the provisional certificate has become null and void. I have mentioned that Section 14 prescribes that votes at the referendum shall be given by ballot. That section, and Section 15, contain as well provisions regulating the form and general make-up of the ballot papers, and inter alia make provision for the taking of more than one referendum on the same day should this course prove to be convenient.
It will be noted that the form of ballot paper prescribed in the Second Schedule to the Bill is such as to permit the voter's attitude towards the proposal upon which the referendum is being taken to be indicated by marking with a cross in the relevant column. Section 16, however, which prescribes the method of marking the vote on the ballot paper declares that, so long as a ballot paper is so marked as to indicate with reasonable certainly the will of the voter, it shall not be invalid merely because the mark in the Act has not been used in marking it. Section 17 of the Bill gives to any member of Dáil Eireann the right to appoint personating agents to attend at particular polling stations during the taking of the referendum.
The right of appointment lies to as many polling stations as the member concerned may think fit, but is limited to the appointment by him of not more than one personating agent in respect of any one polling station. Similarly, Rule 28 in the First Schedule gives to each member of Dáil Eireann for the constituency at which votes on the referendum are being counted, the right to nominate two persons to be present on his behalf at the opening of the ballot boxes and the counting of the votes. The member of Dáil Eireann concerned may nominate himself as one of the persons in question. Sections 18, 19 and 20 follow similar sections in the Electoral Act of 1923, and provide for the appointment of presiding officers, the keeping of order in polling stations, and voting by post. Section 21 is also similar in its general lines to the corresponding Section 29 in the Electoral Act of 1923. I have already pointed out, however, that it contains a new provision which permits the presiding officer to elicit from an applicant for a ballot paper a positive declaration of having attained the age of 21 years. I may say that the measure which was introduced to-day proposes to amend Section 29 of the Electoral Act so as to give the returning officer the same authority in the case of an election to Dáil Eireann.
Sections 22, 23 and 24, respectively, contain provisions for ensuring the secrecy of the ballot and prescribe the procedure to be followed in case of a riot or where the ballot boxes or ballot papers have been destroyed or tampered with. These follow the lines of similar sections in the Electoral Act of 1923 dealing with such matters. The same applies to Sections 25, 26 and 27, which provide (a) for the use of schools and other buildings for the purpose of taking the poll. (b) for the use of local government ballot boxes for the taking of the ballot, and (c) that no voter shall be required by any legal proceeding to disclose the manner in which he has voted at a referendum. Section 28 provides that where the polling at a constitutional referendum and at a general election takes place on the same day, the polls will be taken together, separate ballot boxes being provided. The section, however, also provides that the elector shall not be deemed to have spoiled his vote merely by reason of having put it into the wrong ballot box. Section 29 applies the relevant sections of the Prevention of Electoral Abuses Act, 1923, to the taking of a ballot at a referendum. I have already referred to Section 30, which provides for the issue by the referendum returning officer of a provisional certificate stating the voting at and the result of the referendum concerned. This section further provides that, when the returning officer has been informed in writing by the Master of the High Court that the provisional certificate has not been challenged or voided by petition, the provisional certificate shall become and be henceforth final and conclusive evidence as to the result of the referendum. Section 31 provides for the punishment of officers guilty of gross negligence. It follows the lines of Section 63 of the Electoral Act, 1923.
Under Section 32 the Minister is authorised to issue to all or any local returning officers, or officer, such instructions or orders as he may consider necessary or expedient in order to ensure the smooth and efficient taking of the referendum, and to secure uniformity of procedure in regard thereto in all constituencies. The section, however, contains the limitation that no local returning officer shall be required or authorised by any such instruction or order to do anything which is contrary to the terms of the measure and which would directly or indirectly infringe the secrecy of the ballot.
Under sub-section (3) of Section 34 of the Bill, which will be found in Part III thereof, a referendum petition questioning the validity of a provisional referendum certificate may be presented to the High Court by any person who voted at the referendum or by the Attorney-General. Accordingly, Part III of the Bill, consisting of Sections 33-44 inclusive, makes provision for the hearing and determination of such petitions. Once a referendum petition has been lodged, certain special problems as to procedure present themselves. That arises from the fact that, at a referendum, in contra-distinction to an election, it is the fate of a proposal and not of a person which is immediately and directly involved in the final result. There is thus no individual whose peculiar personal interest it is to uphold the validity of the provisional referendum certificate in the face of a petition, whereas if the return to a parliamentary seat is questioned by petition, it may be taken that the person declared by the returning officer to have been returned will defend his right to sit in the House to which he has been elected. Similarly, an election petition is abated should the person presenting it die, presumably on the ground that the effective interest in such a petition is a personal one, limited to the deceased. On the other hand, in the case of a referendum, a petition questioning anything in the certificate may affect the entire result of the referendum and, therefore, the effective interest in it is a national one. Accordingly, even if the person responsible for the petition were to die, it would still be necessary to try this charge and ascertain the true result of the referendum. Bearing these points in mind, I think it will be admitted that the procedure for dealing with a referendum petition must, in certain vital particulars, differ radically from that prescribed by the Parliamentary Elections Act, 1868, for dealing with election petitions.
While it is true that the position in this regard could be met by an amending Bill to adapt the 1868 Act, the adaptations required would, in my view, be so drastic that it has been thought preferable, in order to meet the convenience of those who may be obliged to have resort to the courts in these matters, to draft a new and complete code to regulate the conduct and determination of referendum petitions. This new code is set out in Part III of this Bill. Naturally, many of the provisions in the new code resemble provisions of the Act of 1868 and of the Prevention of Electoral Abuses Act, 1923. For instance, Section 33 provides that the expression "corrupt practice" means "an offence which is a corrupt practice within the meaning of the Prevention of Electoral Abuses Act, 1923", so that bribery, personation, treating, and the use of undue influence will, each and all, be corrupt practices under the measure now before the House, as they are under that Act.
Under Section 34, a petition may question a provisional referendum certificate either in relation to the voting in any one constituency or in relation to the aggregate voting at the referendum as a whole. In the first case, the certificate may be challenged on the ground that corrupt practices prevailed extensively in that particular constituency, or on the ground of error or misconduct on the part of the local returning officer. In this case, the petition may be presented by any person who voted in the constituency concerned in the referendum, or who claims that he was unlawfully prevented from so voting. In the second case—where the petition challenges the figures for the aggregate voting—it must be grounded on an allegation of error on the part of the referendum returning officer. In the case of an ordinary referendum—one relating to a measure which comes within the terms of Article 47 (2) of the Constitution, and for the rejection of which it is necessary not only that the majority of the votes shall be cast in favour of that course, but that the number of persons actually voting for it shall be not less than one-third of those on the register —the ground that the number of Dáil electors for the time being in the State as a whole has been incorrectly stated in the provisional certificate, may also be the basis of petition. In the case of a petition in respect of the aggregate voting, it may be presented by any person who voted at the referendum, irrespective of the constituency in which he or she voted.
I have already emphasised how the process of a petition questioning the result of a referendum must differ from a petition questioning an election return, by reason of the fact that there is no individual upon whom the responsibility of resisting the petition naturally falls. In so far as petitions presented are concerned, this is met by sub-section (1) of Section 35, which provides that the Attorney-General shall be named as respondent, so that there is cast upon that officer of the State the general duty of defending such provisional certificates as are questioned otherwise than by him. But the Attorney-General has, at the same time, the duty of challenging such provisional certificates as are in his opinion incorrect. Accordingly, apart altogether from the action of individual voters, he may, under paragraph (c), sub-section (3) of Section 34 present a petition questioning the original certificate in any case in which the information before him seems to warrant such a step. It will be remembered that under Section 30 a provisional certificate which has not been challenged in due time, and against which a petition has not been sustained, becomes final and conclusive evidence of the referendum.
Section 34 (4) contains a complementary provision to the effect that a provisional referendum certificate shall not be capable of being questioned in any manner in any court save only by presentation in due form of a referendum petition. I mentioned that sub-section (1) of Section 35 prescribes that the Attorney-General shall be named as respondent in all petitions presented otherwise than by him. Sub-section (3) of the same section further provides that where a person is charged with corrupt practice by a petition, or where the High Court directs that a copy of the petition be served upon him, such person may, on his own application, be named or added as respondent to the petition. Furthermore, under sub-section (4) where in the case of a petition presented by the Attorney-General a question of law arises in relation to the conduct of a returning officer, the High Court may name the returning officer as respondent in order to argue the question of law, but for no other purpose.
Section 36 lays down the general condition with which petitioners must comply. These follow existing procedure closely and amongst other things prescribe (a) that the petition signed by the petitioner or his counsel must be lodged within 21 days of the publication of the provisional certificate; (b) that in cases where the petition is not presented by the Attorney-General himself, a copy of it must be served upon him within five days after it has been presented;. (c) that the petitioner must give security for the Attorney-General's costs to the amount of £1,000; (e) that the petition shall set out with reasonable particularity the grounds on which it is based. Where corrupt practices are alleged, full and detailed particulars are to be lodged with the High Court, and a copy thereof served upon the Attorney-General within 14 days after the presentation of the petition. If all the conditions in relation to the service of a copy of the petition upon the Attorney-General, the filing of an affidavit of such service, and giving security for costs, be not complied with, the petition becomes null and void, and the master of the High Court must notify the returning officer to that effect after, but not more than 21 days from the date of the first publication of the provisional referendum certificate. Similarly, if at the end of the 21st day, no petition questioning the original certificate has been presented to the High Court, the master shall inform the referendum returning officer of that fact.
In either case the provisions of Section 30 will come into effect, and the provisional certificate will become final and conclusive. Section 37 provides that the High Court may order a copy of the referendum petition be served on a particular person, if it appears to the court that he is so concerned in or affected by it that he ought to have notice thereof, and be given an opportunity to have himself added or named as respondent to it. The need for such a provision will be clear if we consider, for example, a petition which alleges that during the taking of a referendum, corrupt practices prevailed extensively in a certain constituency, by reason of the fact that a person influenced voters either by bribery or in some other undue fashion, to vote in a particular way. Clearly the person mentioned should be given the opportunity of defending not only the certificate but himself against the charges made, and in his own interest cross-examine witnesses thereon.
The provisions of Section 37 will ensure that this opportunity will be afforded to him should the High Court, on his application, consider this necessary. Section 38 provides that a referendum petition shall be tried by the High Court before three judges thereof, and further provides that as a rule the trial shall take place in the City of Dublin.
Where there are two or more petitions concerned on the same certificate they may be tried together or consolidated. Full power is given to the court at its discretion to compel persons to attend to give evidence. It will be within the province of the court to examine any person whom it directs to be brought before it, with the exception that he cannot be required to state how he voted. No person brought before the court may refuse to give evidence even if it incriminates him. The justification of the last-mentioned provision arises from the fact that referendum petitions may involve issues of national importance, in regard to which it is essential to establish, even at the expense of the witnesses before the court, the true and lawful result of the referendum. Section 39 empowers the court to require the returning officer to produce and deliver to it all or any of the documents in his possession relating to the referendum. Where a referendum petition questions the validity of a provisional referendum certificate in respect of a particular constituency, the High Court, under Section 40, may order that the referendum shall be taken again in the constituency and may appoint a polling day for the purpose. The High Court, however, is not entitled to order the retaking of a referendum merely on account of non-compliance with the rules or a clerical mistake, where such non-compliance or mistake did not affect the result of the referendum in the constituency.
Section 41 prescribes that the final order of the High Court on a petition shall be made either by confirming or amending the provisional certificate of the referendum returning officer. The section further prescribes that the record of the action of the court in relation to the provisional certificate shall be endorsed on that document, making it final and conclusive evidence of the result of the referendum concerned.
Where the polling in respect of two or more referenda takes place on the same day, as may be the case under Section 15, and where a petition is presented in respect of some only of such referenda, Section 42 inhibits the provisional certificate in respect of the other referenda which were held on that day but in respect of which no petition has been lodged, from becoming final and conclusive until the court has made its final order in respect of the referendum petition or petitions before it. When the court has made its final orders on the petitions before it, the provisional certificates which have not been questioned become final and conclusive also. The final orders of the court on all referenda petitions which relate to the same date are to be made on the same day.
Where the provisional results of some only of the referenda held on the same day have been questioned by petition, paragraph (b) of Section 42 authorises the Attorney-General, with the leave of the court, to present at any time prior to the making of the final orders in respect of the prior petitions, a petition or petitions questioning any of the hitherto unquestioned provisional certificates. These petitions of the Attorney-General shall, as in the case of the prior petitions, be held and determined by the same three judges as sat on the original petition and, at the discretion of the court, may be tried together or consolidated. The need for this provision arises from the fact that, where more than one referendum is held on the same day, the conduct or procedure which invalidates one of the referenda may equally affect the result of the others. If, for instance, intimidation were grave and serious in respect of one proposal on the ballot paper, there is reason to fear that it would likewise have affected the voters in regard to the other proposals.
Section 43 provides for the position which would be created by the death of or delay by a petitioner. Section 44 provides that the High Court, either on its own action or on the application of any party to the proceedings, may, if it so thinks proper, state a case for the opinion of the Supreme Court on any question of law which arises at the trial of the referendum petition.
This completes the general body of the Bill and I now come to the Schedules, of which there are three. The rules for taking a poll at a referendum are set out in the First Schedule to the Bill. They are in three parts, of which Part I relates to the functions of the local returning officers, Part II to the functions of the referendum returning officer, and Part III to general matters. Local returning officers are governed by rules 1 to 30, inclusive, and, with the exception of rules 2, 4, 25 (2), 25 (3), 28 (1) and 30, their approximate counterparts will be found in the Electoral Act of 1923. The new rules — that is to say, 2, 4, 25 (2), 25 (3), 28 (1) and 30 — are necessary to meet the special characteristics of the referendum and the special provisions of this Bill. Rule 2, for instance, requires the referendum returning officer to send to every local returning officer a copy of the Minister's order appointing the polling day at a referendum and the copy of the proposal which is the subject of such referendum.
Rule 4 obliges the Minister for Posts and Telegraphs to make available for inspection and purchase for a sum not exceeding 6d. by members of the public at post offices throughout the State copies of the Bill containing the proposal which is the subject of the referendum. This rule further provides that the public shall be entitled to inspect copies of the Bill, free of charge, at any post office at which it has been made available for inspection and purchase. Rule 25 (2) and (3) lays down the procedure to be followed at the count, in cases where two or more referenda are being taken on the same day. In such cases, all the papers will first be examined for validity and then each ballot paper will be examined as regards each referendum. A paper will be wholly invalid if it has not been properly stamped or if it bears any writing or mark by which the voter could be identified. A paper which has not been invalidated generally for either of these reasons may be declared invalid in respect of a particular referendum if in regard thereto it is unmarked or is void for uncertainty. Rule 28 (1) authorises each member of Dáil Eireann for the constituency in which the votes are being counted to nominate two persons to be present on his behalf at the opening of the ballot boxes and the counting of the votes. It gives him the right, as I have told the House already, to nominate himself as one of those persons.
Rule 30 prescribes that, on completion of the count, the local returning officer shall send to the referendum returning officer the necessary report in writing as to the result of the referendum in his constituency, together with all the specified documents, including ballot papers and ballot paper accounts. At a Dáil election these packets are sent to the Clerk of the Dáil. The functions of the referendum returning officer are governed by rules 31 to 33 inclusive. These rules, with the exception of rule 31, follow similar rules of the Electoral Act of 1923.
Rule 31 prescribes the procedure to be followed by the referendum returning officer in preparing the provisional referendum certificate. This certificate is to be based on the reports of the local returning officer together with, in the case of an ordinary referendum, the information supplied to the referendum returning officer under Section 7 of the Bill by the registration officers as to the number of electors on the register in their respective constituencies. After the provisional certificate has become final and conclusive, or has been confirmed or deemed to have been confirmed by the High Court, the returning officer must send a copy of it to the Taoiseach.
Rules 34 and 35, in Part III of the Schedule, are similar to rules 44 and 47 in the Act of 1923. The forms of ballot papers to be used for the taking of a referendum are shown in the Second Schedule to the Bill. In general, the decision of the voter in regard to the proposals submitted to him in the referendum is to be signified by marking a cross in the appropriate column. It is provided, however, in Section 16 of the Bill, that a ballot paper shall not be invalidated merely because the cross has not been used in marking it, provided that the paper is so marked as to indicate with reasonable certainty the will of the voter.
The Third Schedule sets out the legislation to be repealed by this Bill. As regards Part V of the Second Schedule to the Act of 1923, the authority for this part of the Act was Article 47 of the Constitution of Saorstát Eireann. These provisions are now obsolete. In so far as they relate to the taking of the poll, they have been incorporated in the present measure. Section 23 of the Prevention of Electoral Abuses Act of 1923, which is to be repealed by this Bill, is also obsolete. It provided for the appointment of a sponsor and a challenger at a referendum, who would appoint personation agents. The Bill seeks to confer this power on Deputies in the Dáil.
Those are the general provisions of the Bill and the purpose of it is, as I have already stated, to give effect to the provision of the Constitution in relation to the taking of a referendum on certain legislative proposals.
