Perhaps the Minister might explain Section 8.
Committee on Finance. - Referendum Bill, 1941—Committee Stage.
Section 8 relates to amendments of the Constitution under Article 46. When a proposed amendment has been passed or is deemed to have been passed by both Houses of the Oireachtas, the first step in the holding of the referendum is the decision of the Government to hold it, and the date of that decision is the point of time at which the taking of the referendum begins. The decision, of course, corresponds to the issue of the proclamation dissolving the Oireachtas, from the date of which nomination and polling days are calculated. Under sub-section (2) of the section the Minister will appoint the polling day, and his order must issue within seven days after the decision of the Government. The referendum will take place not earlier than 30 days nor later than 90 days after the date of the order. Under sub-section (3), of course, the usual notice will be published inIris Oifigiúil, and that order made by the Minister under the section will be published as soon as it is made.
Sub-section (1) says:—
Whenever a Bill containing a proposal for the amendment of the Constitution shall have been passed or be deemed to have been passed by both Houses of the Oireachtas and the Government determines that such proposal shall be submitted by referendum....
That is the phrase I wanted explained.
The point is we have been advised that it does not necessarily follow that, because a Bill shall have been passed or deemed to have been passed by the Oireachtas, a referendum must be taken upon it. Accordingly a prior decision of the Government has to be made as to whether a referendum shall in fact be taken or not, bearing in mind, of course, that the Bill cannot become law, particularly a Constitution Amendment Bill cannot become law, until it has been approved by the people. No Bill goes automatically from the Oireachtas to the people unless the Government decides that a referendum shall be made.
Is there not a time within the limits of which such a Bill passed by both Houses of the Oireachtas must be submitted to the President for his signature, and, if it is not submitted within the limit of that time, does it lapse or does it remain in a state of somnolence?
In fact under the Constitution there is no time limit within which a Bill to amend the Constitution, after it has been passed by the Oireachtas, must be submitted to the people. If a decision is not taken to submit it to the people, it will remain in a state of suspended animation until such time as a decision to refer it is taken. There does not appear in the Constitution any means for terminating the state of suspension in which a Bill to amend the Constitution may be placed. It is not felt that in this Bill, which does not touch the Constitution, we can deal with that problem.
Does it give the Government power, under the amendment that was passed to the Constitution, to do away with the referendum altogether? We passed an amendment to the Constitution; is it possible under that, on the grounds of public safety, to pass an amendment to the Constitution without any reference to any referendum whatsoever, declaring that, owing to the requirements of public safety, we are amending the Constitution, to say that in this instance a referendum is not necessary?
Naturally, I would be most reluctant to answer a question of that sort, which might easily puzzle even the Supreme Court.
The reason I ask is that it seems to be provided for in this Section 8.
I do not think so.
Interpretation of the Constitution is a very wide question.
But we are asked to deal with the Constitution, and I want to know what is in the Minister's mind.
Merely implementing an Article of the Constitution.
We could amend it, I think, under the amendment we passed last September twelvemonth, on the grounds of public safety, without any reference to a referendum; that may be a case in which the Government would decide that a referendum was not necessary.
We will have to leave it in obscurity, I am afraid. It is not for me to decide, of course.
Perhaps the Minister would explain this section?
Section 9 is merely to provide that, where the Government has determined to take a Constitutional referendum, and where pending the making of the necessary order a general election has been declared, the referendum may be held on the same day as the general election; similarly if it is convenient, even though the order has been made, it permits the referendum to be taken on the same day as the general election.
This section refers to a referendum dealing with ordinary legislation, which must be held within 18 months of the date of the President's decision that it relates to a matter of such national importance that a referendum should be made. Otherwise, in this case of course, if the referendum is not made within 18 months, the proposed legislation lapses.
Perhaps the Minister would explain the first two lines of Section 3:
"Whenever the Government determines that an ordinary referendum shall be taken...."
Again, in this case the Government has to decide whether it will submit the proposed legislation to a referendum or whether it will await a general election. In doing that, of course, it will have to consider the urgency and importance of the legislation from its point of view, and the probability that a general election may or may not take place prior to the lapse of the limiting period of 18 months. It may decide to await a general election, on the assumption that such general election will take place inside the 18 months. If, on the other hand, it makes that decision, and a general election does not take place within the 18 months, and the Government does not at some stage during the currency of the 18 months decide to take a referendum to the people on it, then the proposed legislation lapses.
Supposing there is a Bill or an amendment to the Constitution passed, which the Government does not make a matter of confidence, but it is passed against the wishes of the Government—a 2½d. amendment of the Constitution, if it is not high treason to mention such a trifling figure in connection with such a solemn instrument—and it is passed by both Houses, the Government can kill that?
It cannot. It may only suspend action.
In the same way, if there is a petition against a Bill passed by both Houses, although the Government do not approve of the Bill, and yet it is not a matter on which it is prepared to resign, the Government can also kill that Bill?
And this is implementing the Constitution and securing the primary of Parliament.
Within the ordinary conventions of constitutional procedure, I do not, at any rate, conceive that if the Government did not regard a measure of sufficient importance to take a decided stand one way or another in regard to it, the President, after consulting the Council of State, would consider it of such national importance that a referendum should be taken on it.
I mentioned an amendment to the Constitution.
There might be a change of circumstances, but I put it to the Deputy, could a Government in relation to a proposed amendment of the Constitution. adopt a purely neutral attitude? I doubt it.
Furthermore, if the amendment is of no importance, the Government having material minds like my own, may say that £45,000 is too much to pay for that sort of thing.
This section corresponds to Section 25 of the Electoral Act of 1923. It deals with the local returning officer's expenses.
There is a new provision in this section, is there not? There is an amendment of the general election law?
Yes. It is proposed in the Electoral Bill to repeal Section 25 of the 1823 Act and to confer on the returning officer power to put a question as to the intending voter's age.
Would the Minister tell us whether a person is entitled to be registered as a referendum elector prior to being 21?
I gather he is not entitled to be on the register of electors unless he is 21.
This section says that a person is not entitled to vote at the election unless he is 21 years of age, but he may have been registered at 20 years of age.
I am afraid in that case the Deputy would have to refer to Article 47 of the Constitution, which provides that every citizen who has the right to vote at an election for members of Dáil Eireann shall have the right to vote at a referendum, that is that he will not be entitled to vote under 21 years of age.
Is a person entitled to be registered under 21?
I do not think so.
Supposing a person of the age of 19 is on the register and goes in and votes, how is this going to be implemented? He can be questioned, but, supposing he says he is 21, his vote is valid.
I do not think so. On petition it can be disallowed.
But not otherwise. He can vote actually there.
The law says he cannot.
The law says he is not entitled to do it, but a person may do many things which he is not entitled to do.
We shall give you the whole of that hair.
A number of people under 21 do vote, we know.
A lot of people evade many statutes here and in other countries. All we can do is to deal with them when we catch them.
What is the penalty if a person who is 19 years of age says he is 21?
That would be at the option of the court under the Corrupt Practices Act.
Is there a reference to the Corrupt Practices Act in this section?
No, but it will be made a corrupt practice under Section 29. That is already the law in respect of general elections.
On behalf of Deputy Brennan I move amendment No. 1:—
Before sub-section (4) to insert a new sub-section as follows:—
Every personation agent duly appointed under Section 17 of this Act may in any and every case where a ballot paper is tendered to a voter ask to see the official mark on the ballot paper and the presiding officer in such case shall on such request tender such ballot paper for inspection to the said personation agent.
A number of votes have been rendered invalid in the past owing to the fact that the official stamp did not appear upon them. This amendment is intended to secure that the people present as personation agents can see if the stamp is affixed to the ballot paper before it is tendered to the voter. I think it is a reasonable amendment.
I do not think it would be possible to accept the amendment because, first of all, the evil is not as great, I think, as the Deputy suggests. At the General Election of 1938 the percentage of votes disallowed by reason of the fact that the ballot papers were not properly stamped was .027. There were six constituencies in that election in which, while the number was over 20, it did not exceed 80. If we exclude these six constituencies, in the whole of the rest of the country there were, I am advised, only 72 out of over 1,011,000 ballot papers which were declared invalid for want of a stamp.
That does not tally with the .027.
That figure was for all the constituencies. I am saying that in the whole of the country, with the exception of six constituencies, out of 1,011,000 ballot papers, there were only .0072 per cent. of ballot papers declared invalid for want of a stamp. The difficulty in enforcing the proposed provision would be very great in urban constituencies where the great mass of the voters come in after six o'clock in the evening and where, at least in most of the areas of which I have personal experience, the congestion is particularly grave during those hours. It is very difficult, as perhaps Deputies know, to secure proper and suitable premises for polling booths, particularly in the city and in urban areas, and I think it would be quite impracticable to enforce this proposal. The only way in which the evil can be dealt with is, where the presiding officer fails to stamp the ballot papers and where the failure is on such a scale as to warrant attention, is to ensure that he will not be appointed to act in that capacity again. But, as I say, the extent of the evil in general is very limited and not at all as widespread as is sometimes assumed. In view of the fact that it would be almost impracticable to administer a provision of this sort, I suggest that the amendment should not be pressed.
Do I gather from the Minister that .027 per cent., or 27,000 votes will be involved—.027 of 1,000,000?
Yes, .027 per cent. of 1,000,000, or perhaps much more than 1,000,000.
Make it 2,000,000 if you like. That is 27,000 votes, is it?
Three hundred and sixty one.
Is it .027 or .0027?
It is .027 per cent.
I am afraid you will find it is more than 300.
It is .027 per cent. or 27 out of every 100,000 votes.
Amendments Nos. 2, 3, and 4 are interdependent, and amendment No. 16 stands or falls with them. They aim at ensuring that two or more referenda shall not be voted on in the same paper.
I move amendment No. 2:—
To delete sub-section (2).
I was dealing with this on the previous section. The Minister has just turned down an amendment on the grounds of impracticability. Now he is providing for finding the views of the people of the country on an amendment to the Constitution or any Bill, and he is prescribing a system that will make it practically impossible for those who are there on the part of the different people interested to check the matter at all. When they have rejection in one case and acceptance in another case, it will be exceedingly difficult to keep any kind of a check.
It is very difficult, as we are without experience of the referendum, to say to what extent the provision in relation to the referendum will be availed of, and to what extent it will be necessary to hold more than one referendum on the same day. But it does occur to me, so far as simplification is concerned, that if we assume that voters are able to vote rationally —and I think we must assume that; it must be the fundamental assumption indeed—there is not likely to be any very great confusion if there should happen to be more than one proposal referred to them on the same day, and that each of these proposals is set out on the one ballot paper. When the system of proportional representation was first proposed, objection was taken to the fact that you would have a considerable number of names on the ballot paper; but in practice it is generally agreed that there has been found to be very little substance in that objection. I think the same will apply here: that if the voter can read and write and is competent to decide on a proposal at all, he will have no difficulty in distinguishing one proposal from the other, even if they both appear on the one ballot paper. If we assume the contrary, that he is not able to distinguish between a number of proposals on the ballot paper and to mark his paper intelligently, then we are thrown back to this situation: that he will have a number of ballot papers presented to him, that he will have extreme difficulty in sorting those out, marking them, folding them up and putting them in separate boxes, as perhaps it would be necessary to do if you are to provide a convenient and workable arrangement for the count.
It seems to me at any rate that in the experimental stage it would be better to keep the whole machinery as simple as possible, to have only the one paper with the separate proposals set out, and one ballot box to receive that paper. It is very difficult to make up one's mind in advance of actual experience as to which of these will be the better. The only thing we have to guide us is that in Australia, where the referendum has been used, there is a provision to the effect that, if two or more proposals are submitted to the people on the same day, they must appear on the one paper. That seems to me to be almost a necessary corollary, that if two proposals are to be presented to the people, they should, if the time happens to be convenient, be submitted to the people on the one day or at a general election. I think that if we decide that separate ballot papers should be issued that should be carried to its logical conclusion and we should not have two referenda on the same day, but that we should submit the proposals on separate days, which would involve an expense of between £40,000 and £45,000 for each referendum.
It is quite possible that neither the Minister nor any of his officials has ever attended an election in which the voting was by the ordinary "X" method, and there were more than two vacancies to be filled. If the Minister attended a count of that kind, he would realise the real purpose behind the amendment, namely, the difficulty of a check, and a check might be requested in a case where the voting was pretty tight. If there were, as I have seen, four persons to be elected and some ten candidates for the four vacancies, one paper would be marked with an "X" after A, B, C, and D, the next with an "X" after E, F. G., and H, and another with an "X" after A, C, E, G. A check is practically impossible in that case, without a recount, and a recount over a thing of that kind, where there would be thousands of votes, is not a very interesting performance. The question may arise at any time, did the returning officer call out that particular referendum, the referendum with the blue print or the white print, once or twice, and so on. A check is practically impossible. Even the form of the ballot paper here is departing from that rather peculiar one of the Constitution. I am speaking from recollection. I think the Constitution voting was "Yes" or "No", and if a citizen put down an "X" he spoiled his vote, according to law. I am dealing with it according to law, as it was laid down. Here is a new method. We will take it that a person approves of one measure and disapproves of the other. There is the natural disposition on the part of a person who wants both to say, If you do that you will spoil a vote. You must either agree with both or disagree with both. You mark "X" to approve of one and "X" to disapprove of the other. It is mixing. But the real thing is in the count. If there is a possible chance of the voting being tight and if feeling is running very high about it people are entitled to look for a recount. It means hours and hours of work.
I do not think I have ever referred in this House to any report that has been made of anything that was said in it, but on the last occasion when speaking here on this Bill, I was reported as saying bribery or "treason" were negligible offences. I said bribery or "treating". Now, having said it, it cannot be altered. That is one of the things we are dealing with. We are making a law that cannot be altered. The Minister knows my view with regard to a referendum. I think it is all humbug. Every humbug that goes over there and sits on those benches, when he comes in, wants a referendum, and as soon as he is there he realises how useless and how evil it is and will not have it. In my experience here in the City of Dublin there was a referendum taken once. I learned enough during that to know that it was a bit of a joke and likely to be made a bit of a joke. At any rate, we are going to pass a law for it here and we ought to have it so that it will not be regarded flippantly. Whatever there is that is difficult and difficult to administer is certainly open to condemnation of one kind or another. My suggestion now is for the purpose of simplicity, even though it may cost a little more money. It may be the best way of correcting people from having referenda and, in any case, it will make sure that whatever they decide will be decided in accordance with the wishes of the people and not in accordance with the infirmities of the presiding officer.
The Minister said there was a lack of experience. Why does he use the expression "shall not" there, which presumes a great deal of experience? You are not allowing yourself, when you do get a little experience, to correct.
Is the Deputy suggesting that it may be left at the discretion of the Minister to alter it by regulation?
I think it is a reasonable thing to do, to leave it to the discretion of the Minister.
We do not know how many referenda we are going to be asked to have. Judging by past experience, they may be of rare occurrence. Perhaps that may be the more reason for making them as simple as possible and not confusing the people. But if by any chance two referenda were going to be held on the same day, it is very much the toss of a coin as to which is going to be the less confusing—whether you have two ballot papers or whether the two proposals are put in the one ballot paper. If the Deputy will pass the section as it stands I will consider what he says.
I do not see why the Minister should bind his hands.
If it was found that this proposal did not work very satisfactorily it would be easy to bring in a one-clause Bill.
Is not that a very cumbersome method of dealing with it?
If the Deputy is suggesting that we should take power by regulation to prescribe the form of the ballot paper subject to certain safeguards——
Very well. I will consider it and see what we can do about that. I will consider bringing in an amendment on those lines on Report Stage.
In the case I mentioned, where perhaps 2,000 votes had to be counted, I do not think any two checkers were in agreement, unless they marked up to agreement.
Let us take a case with which we were dealing a short time ago. Perhaps the Minister may enlighten me. There was a little Bill introduced here called Amendment —was it No. 2 or No. 3?—of the Constitution.
No. 1, I think.
Attached to that was a Schedule.
There was a Second Amendment of the Constitution Bill, the one dealing with verbal and other changes.
Knocking judges out of the Constitution—merely verbal changes! That is rather an amusing point of view. What would go on the ballot paper in the case of that particular constitutional amendment supposing it had been introduced, not before, but after the expiry of the three years?
Call it an omnibus amendment.
What would go on the ballot paper?
I am afraid I do not know.
I cannot see what would go on the ballot paper.
Normally the assumption underlying the section as it stands is that the proposal to amend the Constitution would relate to one specific provision in the Constitution. I do not think that it would be very easy to do anything except to refer the whole of this Bill in itself.
Then it would have to go on the ballot paper?
I am afraid so.
I think so.
I cannot see how else it would be disposed of. If it were a provision merely dealing with one Article it would be possible to deal with the proposal in a sort of preamble to the Bill which would go on the ballot paper. I admit the Deputy has put a difficulty there.
After all, the Government deliberately did that. They flung at this House, for the Second Reading and for the Final Stage, a Bill which was take it or leave it. Are they going to treat the people differently from the way in which they treated the House? That was the choice that was given to us. Another Government or the Ministers when they change their mind—if there are no insuperable objections or obstacles to changing their mind which need not be mentioned—may have a number of other amendments to bring in and may adopt the same convenient practice. Take the case of a Bill of which the Minister may have heard—the Trade Union Bill. If a referendum is demanded on that Bill, what goes before the people? A petition is sent in: "We object to this Bill on the following grounds," and the sections are indicated and the reasons for the objection given. Does all that go on the ballot paper?
No, I am afraid that will not have to go on the ballot paper. What will go on it is the proposal in the form in which it is submitted to the President. I assume that it will be the President's function, before he submits the petition for consideration by and consultation with the Council of State, to satisfy himself that the proposal has been stated in the proper form, that the petition does, in fact, truly represent the proposal contained in the Bill.
I am assuming that.
Having done that and having taken his decision in relation to it, he will convey that decision in writing to the Taoiseach, and in the writing it is presumed that he will state—in the form in which it has been represented to him in the petition—the proposal which he regards as being of such national importance that the opinion of the people should be taken on it. Therefore, it is contemplated that the writing which the President sends to the Taoiseach will state the proposal in its general form and it will be in that form that the proposal will be expressed on the ballot paper.
As to the details of the proposal, I think those who wish to vote on it will have to consult the statute at the post office or the other places where such statute is to be available for public inspection, but, apart altogether from that, no doubt those who take strong views for or against the proposal will have every opportunity of representing to the people what in fact the proposal contains and what are the objectionable or commendable features in it. I do not think the public will be in any ignorance as to what they are voting on, but in any event they will have to guide them an authoritative statement of the nature of the proposal, the statement which is contained, first, in the petition which the President in accepting and acting upon has approved of as being a fair and equitable representation of it and, secondly, in the President's message to the Taoiseach. It will perhaps be mainly upon that representation and that view of it that the people will determine their votes.
Suppose I am a person who is in a position to object to, say, the Trade Union Bill and suppose I can get sufficient backing for my objection. In the petition I state what are the things in that Bill to which I object and on which I want a referendum. I indicateseriatim these points. Otherwise, I have not stated the ground for my referendum. That goes to the President. If the President makes up his mind that it is a fair statement of my reasons for objecting to what is in the Bill, he accepts it and sends it to the Taoiseach. That then goes on the ballot paper and it may occupy a couple of pages. It might be the best way, in my opinion, of bringing the matter before the elector. The ballot paper then will be extraordinarily cumbersome.
It may be.
The two cases are on exactly the same level. In one case, the Minister laughs and says he does not know what will occur, and neither do I, so we can leave it there.
Section 15 agreed?
As the Minister does not know what it means, we can let it pass.
I do know what it means, but I do not propose to prognosticate as to what it will eventually involve in the form of a ballot paper.
I cited a Bill which, in the normal way, would have to go before the people—a Constitution Amendment Bill.
I will rely on the President's power to see that the proposal is expressed both succinctly and accurately.
Oh, no. If you propose an amendment of the Constitution, I presume that every line of it is important. I should not insult the Constitution by thinking otherwise.
With regard to amendment No. 5 to this section, this point is fully covered by rule 12 (2) which prescribes that in the absence of the presiding officer for any cause, whatever duties he may have devolve on the poll clerk. Under rule 12 (2), the presiding officer may do, by the clerks appointed under this rule to assist him, any act which he is required or authorised by this Act to do, except to order the arrest of any person, or the exclusion or ejection of any person from a polling station. The point here was that if a presiding officer was temporarily absent or indisposed for any reason there would be no person there to permit a personation agent to leave a polling station. In fact, that can be done by any of the poll clerks.
Any member of Dáil Eireann can appoint a personation agent?
This section is the same as Section 25 of the Electoral Act of 1923.
This section is similar to Section 29 of the Electoral Act, 1923, the only new matter being the age question. The presiding officer is given power under paragraph 3 of sub-section (1) to ask a person whether he has attained the age of 21 years.
Would the Minister look at sub-section 5 (c)? Suppose I am a voter and I omit to vote for all the referenda. I tell the presiding officer that I have spoiled my vote. What is he to do?
But he has omitted to vote.
He has merely omitted to vote. I am contemplating the case that is envisaged by 5 (c) where a man has omitted to vote for all the referenda, and then wants to get his vote on the ground that it is spoiled.
Assume that there are two proposals on the ballot paper, and that a voter has indicated a preference in relation to one and not in relation to the other, if he has not yet put his vote in the ballot box, there is nothing to prevent him going back and marking it.
If I spoil my vote and put it into the ballot box, I cannot get a new ballot paper then?
Therefore, the getting of a new ballot paper can only apply to the time previous to putting my vote in the ballot box?
Precisely. It sometimes happens, at a general election, that a person absent-mindedly marks two 1's on his ballot paper. He shows it to the returning officer and says: "I have spoiled my vote and I want a new ballot paper."
What I am anxious to know is, what is the purpose of 5 (c)?
To provide that, if a person by any chance marks a ballot paper in the wrong place, he can get a new ballot paper, mark it, and deposit it in the ballot box.
But why should he ask for a new ballot paper if he merely omitted to vote?
The Deputy is assuming that the voter would have spoiled his vote.
No, I do not make that assumption. He has not put the ballot paper into the box, and he can go back and mark it. Why should he ask for a new ballot paper? What is the case envisaged by 5 (c)? I cannot see.
I cannot see it either.
Why should he ask for a new ballot paper since his original ballot paper is not spoiled?
I think there is a drafting error there.
I do not understand the purpose of this. Even if a voter did spoil his ballot paper, how can he be prevented from getting a new one? No one can see whether he has spoiled it or not.
He would have to tender a spoiled ballot paper before getting a new one.
And it is destroyed.
Amendment No. 6, Section 23, in the name of Deputy Brennan.
The proposal in the amendment is to allow of a temporary closing of the polling booth for part of a day until the riot has ceased. I would be very strongly opposed to this amendment, because I think that if a riot has taken place, to the extent that the presiding officer feels it necessary to close the polling booth, we ought to do what we have done in the Electoral Act of 1923, namely, close the polling for the whole of that day. Suppose a referendum and a general election were being held on the one day, it would be very inconvenient—it would be more than inconvenient, it would be ridiculous—to close the polling booth in respect of the general election and to keep it open for some part of the day in respect of the referendum. If there has been such a disturbance—a general riot—and it is felt necessary to close the polling booth at all, then I think it ought to remain closed until such time, at any rate, as the general body of the electorate who vote in that particular district have reason to know that the State is represented there in sufficient force to ensure that peace and order will be maintained. In certain circumstances it might be very difficult for that news to percolate until the following day.
So that all anybody need do then, in order to get the voting postponed for a couple of days, is to get up a general riot.
They can do that at a general election, of course.
Does this section mean that, if the box is tampered with in any way, it invalidates all the votes cast in that box?
"Tampered with" has a technical meaning—of having votes added or abstracted or interfered with in such a way as to cast reasonable doubt on the integrity of the votes which the box contains.
That is my difficulty—if the ballot boxes are in any way tampered with: not the papers merely, but the box.
Yes, if the boxes bear the appearance of having been forced.
They may be bashed about and badly damaged.
I do not think that would constitute tampering with. The box must be interfered with in such a way as to leave room for the presumption that papers have been put in illicitly or have been abstracted.
Why is the word "boxes" used?
The same expression is used in Section 34 of the Electoral Act of 1923. It says:
"If at any election any ballot box or boxes or any ballot paper or papers is or are taken out of the custody of the returning officer, or of any deputy returning officer, or is or are in any way tampered with, or is or are either accidentally or intentionally destroyed...."
I think the expression "tampered with" has a common law meaning there.
This section provides for the use of schools and other buildings. We have a similar section—Section 30—in the Act of 1923.
This section provides that no person shall be required in any legal proceeding to state the manner in which he has voted at a referendum.
This section sets out the special provisions which have to be made for the contingency in which a general election and a constitutional referendum have to be held on the same polling day. Amongst other things, it provides that if, by any chance, a voter in the referendum puts his ballot paper into a box intended for the reception of votes at the general election, he will not, by reason of that fact only, spoil his ballot.
Perhaps the Minister would explain why Section 7 of the Act of 1923 is omitted from sub-section (1).
That is purely an election section. It deals with the disqualification of a candidate who has been guilty of corrupt practices.
Under paragraph (b) a large number of sections are left out.
Section 9 makes voting by prohibited persons an illegal practice—for instance, persons who have not reached 21 years of age. Section 10 makes voting while incapable of voting or voting more than once, even if registered, an illegal practice. Section 13 requires the printer's name to appear on posters and Section 15 fixes the punishment for illegal practices.
There is nothing special in the sections left out?
As a general rule, they refer to candidates. They deal with payment for illegal practices, false statements concerning a candidate and disorderly conduct at meetings. Under Section 14, expenses incurred by unauthorised persons, or a person acting otherwise than as an agent for a candidate, are dealt with.
In practice, what has happened is: the Act of 1923 is made applicable to this matter.
With regard to amendment No. 8, in the name of Deputy Brennan, I think we should have to regulate in some way the right of a person to secure a recount. If this amendment be not moved, I propose to bring in on next stage an amendment which will, perhaps, meet the point raised in Deputy Brennan's amendment. Obviously, it would be necessary to put some limit on the number of recounts. For instance, if the result of two consecutive counts were to correspond, or if two out of three counts were to correspond, we should have to assume that the majority of counts was right.
This action relates to the punishment of officers guilty of gross negligence. It is under this section that an officer who had failed to stamp an unreasonable number of ballot papers would be punished.
This section is the same as Section 41 of the Presidential Elections Act, 1937, and Section 62 of the Prevention of Electoral Abuses Act, 1923.
I move the following amendment for Deputy Brennan:—
After line 32, page 15, to add the words "and shall also mean any statement of the proposal or proposals which is or are the subject of a referendum which in the opinion of a judge of the High Court is or are either false or misleading".
The Minister, when dealing with the Corrupt Practices Act, read out a statement that one of the sections dealt with a false statement about a candidate. No provision is made in respect of a false statement in a referendum.
The false statement in relation to the candidate must be made under particular circumstances.
In connection with the election?
The false statement must relate to the personal character or conduct of the candidate and must be made before or during the election.
I suggest that you adopt a similar section here.
If we are to allow freedom of discussion, a person must be permitted to express his opinion on the proposal before the electorate. All we can do is try to ensure that the proposal shall be stated as fairly as possible in the ballot paper.
Which the voters do not see until they go into the booth.
When the decision to hold a referendum is published, the usual notices setting out the proposal will be published under rule 3. Every local returning officer will be required to give public notice of the referendum and the proposal which is the subject of such referendum and the post offices at which copies of the Bill can be purchased. The proposal will be brought sufficiently to the notice of the electorate and they will be reasonably well informed from official sources as to what the proposal is.
What more will they be given than the name of the proposal?
The proposal would have to be stated in the form in which it is sent from the President to the Taoiseach. The electors would have to be informed of the Preamble of any Bill to amend the Constitution. In addition, copies of the Bill must be made available at certain post offices so that, if necessary, they can be consulted there and the details of the proposal examined. It would be very difficult to enforce Section 9 in this case. It would impose a very heavy burden on the courts.
It has been done in the other case.
The other case raises a comparatively simple issue, whether a false statement affecting the personal character or conduct of a candidate has been made or not.
It is quite obvious that the objective must be set forth in the Bill if there is to be publicity of it. The Minister suggests that there will be a Bill in the post office and that 1,000,000 people will crowd in to consult it. I wonder how many Deputies read Bills, not to mention members of the public.
I move amendment No. 10 which is in the name of Deputy Brennan:—
Before line 33, page 15, to insert a new definition as follows:
the expression "legal proceedings affecting referendum" shall include an application to the High Court by or on behalf of any voter who complains that the case made for or against the referendum is false and misleading;
The amendment is not quite clear. If it means anything, I presume it refers to the case made for or against the referendum in official publications and, for instance, to the message from the President to the Taoiseach. I do not think we could ask the court in a case like that to convict the President of having made a false or misleading statement. He is presumed to be the supreme guardian of the Constitution and is Head of the State. He must be presumed to take reasonable care to secure that matters referred to the people will be referred is a form which truly represents their nature. We could not accept the amendment in its present form.
Then there is no remedy.
I do not see how the amendment could be read otherwise than I have mentioned unless it was possible for a petitioner to prove to the courts that the case made for or against the proposal throughout the length and breadth of the land on every platform was false or misleading. That would be to place a heavy onus on him.
The intention was that it would be open to any person to go into court in respect of a statement by any individual, no matter what his position.
There is a Constitutional provision in the case of the President.
An attempt was made to bring one in, the effect of which would be that he could not be prosecuted for anything. Fortunately, it was not pursued. The point is a very simple one. A man makes a case for or against the referendum. We are not interested in that; we are interested in the question whether that is a false or misleading case, either for or against. There is no means of dealing with that at present but there is a means of dealing with it in an ordinary election. A candidate can move in the matter if he is so advised. Here, there is no power to go to court and stop the evil thing. The merits of the case can be discussed, with exaggeration if you like, but draw the line at a false or misleading statement.
The Deputy forgets the provisions of Article 13 of the Constitution. Section 8 (1) of that Article states:—
"The President shall not be answerable to either House of the Oireachtas or to any court for the exercise and performance of the powers and functions of his office or for any act done or purporting to be done by him in the exercise and performance of these powers and functions."
If this amendment were adopted, I think it would be repugnant to the Constitution. We should be calling upon the court to decide whether a statement issued in writing by the head of the State to the head of the Government was false or misleading. That would be repugnant to the terms of the Constitution. Apart from that, I think that it would be disedifying and that we should not put ourselves in the position of assuming that the President would be capable of making a false or misleading statement in these circumstances. It is better for us to assume that, so far as the President is concerned, whatever issues from his hand in respect of a referendum is authoritative and true.
And on that we will vote?
On that we will vote. Supposing a false and misleading statement was made by some person, a person perhaps not of any great importance, a person whose word might not carry any weight, are we going to upset the referendum by reason of the fact that that false and misleading statement was made by such a person? But suppose the statement has been made by a newspaper and one is able to prove it was deliberately false and misleading, who is going to assess the extent to which it has been misleading, or has influenced the result of the referendum? Leaving these difficulties aside and looking at the matter in a practical way, is it not clear that statements which are, perhaps, neither deliberately false nor deliberately misleading, but which may have a bias one way or another and which will represent extreme points of view for or against the petition will, in the end, cancel out?
All we are doing is asking the electorate to form an opinion upon a proposal which is submitted to them on the paper, an opinion influenced, no doubt, by the arguments and statements made for and against the proposal. I doubt whether a false statement of such weight that it might ultimately influence the electorate would remain uncontroverted to such an extent that its influence would prevail. We have all the agencies of publicity here in a position to controvert a statement which was manifestly false and misleading and, in the light of that fact, I think we ought to resign ourselves to the practical situation and realise that, whatever proposal is submitted by any body of persons, there will be always more than one point of view, always more than one opinion in regard to it, and we had better let it be assumed that people are expressing their opinions in all good faith and veracity and let those who have to decide between the various opinions thus expressed be guided just by their own judgement, influenced perhaps by their general opinion of those who make the conflicting statements.
Section 34 deals with the ground upon which a petition questioning the validity of a provisional referendum certificate may be presented. It points out that the petition may be presented on the ground that corrupt practices prevailed extensively in a local constituency, that the result of the count in the constituency was incorrect, or that the local returning officer had not conducted the election according to law, or that the total number of votes was incorrect, or that the number of Dáil electors was not correctly stated. It gives individuals who are interested an opportunity, if they wish to avail of it, to present a petition on one or other of these grounds and, in addition, the Attorney-General is given the general right to petition if he sees fit to do so.
Is there any indication in the Bill of the grounds on which the court will decide to upset the referendum?
On the grounds, I assume, that the charges have been proved.
That is precisely what I want to come to. Let us say a Bill has been submitted to referendum and the voters number 50,000 in the one case and 30,000 in the other case. In one local constituency 1,000 people vote and there is a petition presented indicating that there was corrupt practice on a large scale in that constituency. That is proved up to the hilt. What is the function of the court?
The court may perhaps decide to have a fresh referendum in that constituency.
In that constituency only, and the same might apply to others, even if they are of the opinion that the amount of the corrupt practice that prevailed had not substantially altered the final verdict. Supposing it is established that in one constituency gross corrupt practices have prevailed, and only 1,000 votes have been cast there, must we still go through the farce of holding another referendum in that constituency, even if it cannot affect the final poll?
I do not think we would be justified in making so wide an assumption that it would not affect the final poll.
Let me take a case on a larger scale. Say there are 500,000 for and 300,000 against. In one constituency, which has a total voting power of 100,000—which is pretty large—corrupt practices have prevailed. Even if every person in that constituency voted freely and voted the one way—which is most unlikely— it cannot affect the final result. Must there still be a fresh referendum in that constituency?
No, I do not think so.
Is there any indication of that in the Bill?
Except in Section 40, which merely provides, without tying the hands of the court in any way, that it shall be lawful for the court to order the retaking of a referendum in any constituency. It does not bind the court.
That is the point with which I wished the Minister to deal.
With regard to Section 35, the Attorney-General brings a petition and that will be argued before the High Court. Is there any provision that the other side will be put before the court—any provision for the appearance of someone to oppose the Attorney-General in that case?
In sub-sections (3) and (4) there is provision. Sub-section (3) says that where, in a referendum petition, or any particulars filed in relation to it or at the hearing of a referendum petition, any particular person is alleged to have been guilty of a corrupt practice or where a copy of a referendum petition is served on a particular person by direction of the High Court, the High Court may, on the application of that person, add or name him as a respondent to such petition. There, again, if a person is alleged to have been guilty of a corrupt practice in such circumstances, the High Court may direct, and will direct, that that person's name should be added, if it is a matter affecting the character and conduct of the person concerned and if he wishes his name to be added. He may not wish to go to the expense involved, but if he wishes to do so, the High Court may add his name.
That is in the case of corrupt practices?
Yes, but what else can a person who is not a returning officer be charged with?
Yes, but take the case of the returning officer: can he be represented?
And can any other people, who object, for instance, to the general conduct of the election, be represented?
Not unless they themselves have petitioned, but I presume that if they had evidence to support the Attorney-General in his petition they would put themselves in touch with him and that he would avail himself of whatever assistance they could give him and would, presumably, act on their behalf as well as on his own.
There are many grounds besides that of corrupt practices on which a petition can be brought.
Very good. The Attorney-General, representing the Government——
No, the people.
Well, he is in close touch with the Government, and, obviously, he brings a petition because the referendum has been successful— we will assume it has been successful— and therefore is not palatable to the Government. The Attorney-General is asked by the Government, or nominally by the people, to bring in a petition, but who will argue in favour of the case for the referendum?
What can he bring it in on otherwise than for corrupt practices?
As I said, there is a number of other things besides corrupt practices.
He can bring a petition in regard to the count in a constituency. I presume that if the count is challenged, the returning officer, whose conduct in respect of the count is being challenged, would be brought in under sub-section (3).
That is, corrupt practices.
Further on in that sub-section it says that where a copy of a referendum petition is served on a particular person by direction of the High Court, the High Court may, on the application of that person, add or name him as a respondent. I presume that where the conduct of the returning officer in connection with a count had been challenged, the High Court would naturally give him the opportunity to deny the allegations.
I move amendment No. 11:—
In page 17, line 11, to delete the words "one thousand" and insert in lieu thereof the words "one hundred".
This is only a question of the sum being too high.
Of course, there is the question of avoiding vexatious petitions, and I think we ought to let the sum stand at £1,000. After all, he has only got to give security. If he is not able to deposit the £1,000, he can, under sub-paragraph (ii) enter into a recognisance, with three sureties.
Well, let us take a case like this: in one constituency there is a great deal of corruption, and that corruption can be proved, but it is equally possible that the petition may be dismissed—we argued that already—what about the costs?
There is a provision under Section 38 (1) (i).
We have an amendment in on that point.
Yes, there is amendment No. 12, but it does not appear to be necessary. That is an amendment relating to costs, but I do not see how it can be brought in there.
Where does it come in?
In Section 38 (1) (i).
Yes, I see.
I think it is covered.
On the section, Sir, I should like to make a remark in connection with paragraph (g), the question of lodging full and detailed particulars. It says here that, save where the Attorney-General is the petitioner, the petitioner shall lodge a full and detailed statement of the particulars of the corrupt practices.
I can see that that paragraph might bear a little further consideration, but I think the real exemptor there is that it shall not be necessary for the Attorney-General to serve a copy of his own petition on himself. However, I think there is something to be looked into there. It says that where the ground or one of the grounds on which the petition is based is that corrupt practices prevailed, such corrupt practices need only be stated generally in the petition. This would seem to except the Attorney-General from lodging a full and detailed statement of particulars, whereas it seems to me that it is meant merely to relieve the Attorney-General of the obligation of serving a copy of his own statement on himself. However, I shall look into it.
It says that the statement shall be lodged in the Central Office of the High Court.
That would seem to relieve the Attorney-General of lodging full particulars even in the High Court?
Well, I shall look into that point.
Does not paragraph (h) go with it somewhat?
No. That paragraph is merely to the effect that the High Court may require the petitioner, on the application of the Attorney-General, to furnish further particulars.
Yes, but supposing the Attorney-General is the petitioner, can anybody ask him to furnish more particulars?
Yes; I think there is a point to be looked into there.
This is the section which covers the point made by the Deputy about a person whose conduct seemed to be reflected on in some way by a petition, in which case the High Court may direct that a copy of the petition will be served upon him, and he will have the right then to apply to the High Court to be named as respondent.
In that case, therefore, every person named could appear only, so to speak, for himself?
But the people who want the referendum to stand could not be represented to argue against the case?
Well, I assume that, if his conduct were to be cited as being vital to the whole issue—that is to say as to whether corrupt practices prevailed or not—he would perhaps be taken to stand in a sort of representative capacity, and, if he were to disprove the allegations made against him by the Attorney-General, naturally that would be a matter of which the court would have to take cognisance. I assume that, to that extent at any rate, the judges would have to hold that the Attorney-General's petition had failed.
That is not my point. I am really dealing with the procedure before the court. There are two people interested in the case of the referendum. The Government has introduced a Bill. A referendum is held. The result goes against the Government. The Attorney-General objects. Up to the present, as I understand the Minister, the only people that can argue against the Attorney-General are the individuals?
There is no power by which those who want to uphold the validity of the referendum can cross-examine witnesses, and so on. There is nobody there to represent them. There is only A.B., who is cited, and who determines that he will come forward, and he can only deal with his own individual case.
It is the duty of the court in that case to determine the true state of affairs. Under one of the sections—sub-section (2) of Section 38 —the court has very definite powers. The sub-section says:—
The court trying a referendum petition shall be entitled, at any time during such trial, to direct that a particular person shall be brought before the court and shall give evidence at such trial....
That is not my point. My point is that there is nobody to argue before the court the case for the referendum.
If it is to be argued on a point of law?
In any case, fact or law, it is well that the people interested in the referendum and in its standing should be represented before the court. Otherwise, it would be a very one-sided business.
The court should have some person to expound the law to it?
To expound the law and also to make a case for the validity of the referendum. That is all I ask.
I shall look into that matter. Perhaps if the Deputy would give the point some consideration there may be some suggestion he would like to make in that regard. We have proceeded on the principle that once a petition is lodged, particularly if it is lodged by the Attorney-General, the court would then take charge of the petition, and might if necessary appoint a person to argue the other side, though there is no provision to that effect in the Bill.
I should say that any person interested in defending the validity of the referendum should be able to apply to the court to appoint counsel and to appear before the court. I think that is only reasonable.
I think there is something in the point.
In regard to amendment No. 13, in the name of Deputy Brennan, I think we should definitely elect for three judges. This procedure is supposed to relate to a proposal of such national importance that a referendum has been taken in regard to it, and I think an issue of that kind should not be left to the disposal of a single person.
This merely empowers the court to order a referendum to be retaken in a particular county.
This provides for the confirmation or amendment if necessary by the court of the provisional referendum certificate after a petition.
This section provides that, where more than one referendum has been taken on the same day, and where at least one of them has become the subject of petition, the provisional certificates regarding the others will not become final and conclusive until the issue of the petition has been determined.
This section provides that, where a petitioner or petitioners dies or die, the conduct of the petition will be taken over by the Attorney-General, or, where there has been undue delay in proceeding with the petition, that the conduct of it may be taken over by the Attorney-General, at the direction of the court.
This provides for an appeal on a point of law.
I move amendment No. 14:—
To delete paragraph (2) of Rule 18, page 25, lines 23 to 30.
This rule deals with a request made by a voter to have his ballot paper marked for him and provides that such request may be refused by the presiding officer in certain circumstances. Is there a similar provision in the electoral law?
There is. The line we take in relation to this point is that it is only reasonable that people who cannot mark their papers without assistance ought to vote early. We could not allow them to come along and prevent others from exercising their rights as voters.
It takes much longer, of course, to mark a ballot paper in this way than to issue papers to people who mark their own ballot papers. It seems that this is a power which may be exercised at the discretion of the presiding officer. It might be more satisfactory if such voters were compelled to vote early because there is a lot of dissatisfaction expressed sometimes when it becomes necessary to exercise a discretion in this way. For instance, people who are engaged at work all day might come in at the close of the poll and if the matter at issue were one in which Labour were interested, the fact that such people were prevented from voting might affect the decision.
It would be very difficult to make any rigid rule. There are, I know, districts in Dublin which vote reasonably early and where polling in the late evenings would be considerably less in volume. In other districts the polling booths are very congested in the late evening. I think we shall have to leave the matter to the discretion of the presiding officers. They generally act fairly.
There is another amendment in the name of Deputy Brennan to delete Rule 35 of this Schedule.
Rule 35 provides that no person shall be employed by the referendum returning officer or by a local returning officer who has been employed by any other person in or about the referendum or the taking of the poll. I think we shall have to approve that rule. There is a similar rule in the ordinary electoral law.
There is also an amendment by Deputy Brennan to the Second Schedule which deals with the form of the front of the ballot paper. I think the Minister should consider whether he is not binding himself down there.
I am looking into that point and it may be necessary to bring in an amendment to the Schedule at a later stage.
This Schedule repeals Part V and the Seventh Schedule of the Electoral Act of 1923. That Act included provisions for the taking of a referendum and these provisions are now superseded by this Bill. Section 23 of the Prevention of Electoral Abuses Act, 1923, which is also being repealed, provided for the appointment of a sponsor and challenger at a referendum. Deputy O'Sullivan has suggested that we should have made some provision for a person to defend the referendum if necessary. I shall consider that suggestion.