This Bill as it stands at the moment is wholly unacceptable to us. It contains matter which we could not under any circumstances accept or in any way give adherence or be a party to, particularly in reference to the Preamble, and that comment which I have just made applies also to the statement that was made by the Minister in moving the Second Reading when he said that the Bill was necessary because one of the candidates had sent out a circular which was found not to be in accordance with the law.
This issue as it arises at the moment goes far beyond the mere question of a particular election address at this Presidential election or the very controversial matter as to whether or not that particular election address which was prepared on behalf of General Seán MacEoin did or did not comply with the law.
The Preamble to this Bill states:—
Whereas, in the case of one of the candidates at the 1959 Presidential Election, a communication has been prepared for sending under the principal section and, because the communication relates to that election and to the 1959 referendum, it fails to comply with the requirement of that section that it should relate only to that election.
That recital in the Preamble to this Bill would constitute, if this Bill were passed with that recital in it, a statutory admission on our behalf that the election address prepared by General Seán MacEoin at the Presidential election did, in fact, contravene the law. We could not be a party in any way to such an admission. It would have even a still further very wide scope, indeed, when the effect of this Bill, if it is passed into law, would be considered in relation to the rights of candidates at a general election in future.
This Bill, on its face, appears to be an ad hoc measure designed to get over a certain difficulty in relation to a particular document at this Presidential election. If it became law, it would in future be a statute of this Parliament which would be referred to hereafter for the purpose of controlling and certainly aiding the interpretation of a somewhat corresponding section in the Prevention of Electoral Abuses Act, 1923, Section 50, subsection (1) and, in my view, and I submit it to Deputies and the Country for their most urgent consideration in connection with this matter, the effect of this would be that every candidate at any future general election would have to submit his election address for censorship by the Government or by the Post Office Solicitor. That is a principle to which we could not subscribe. I may have to develop that a little further later on, although I propose to speak very briefly on this Bill. We are not dealing merely with a piece of ad hoc legislation but with a piece of legislation which may have and, in my view, will have, very far-reaching results.
This Bill, as I say, as at present drafted and at first recital and in accordance with what the Minister said in introducing the Second Reading, is an admission, not merely an implied admission, but an actual express admission, that General MacEoin's electoral address contravened the statute. I understand from the communication that was issued on behalf of the Government by the Government Information Bureau that they had legal advice in this matter and that the legal advice was the advice of the Post Office solicitor. I make no aspersions on the Post Office solicitor, his competence or capability. He is an eminent gentleman who is entitled to his own opinion. Equally, I am entitled to my own opinion, and I want to say here something which I have hesitated all the years I have been in the Dáil to express, namely, what my opinion is on this statute.
I have hesitated, as I have said, either to express my own personal view on a legal matter or to give a legal opinion particularly in matters affecting the Constitution, but because of the issue raised here and of the public interest in it and of the importance of this not merely from an ad hoc application in the present instance but its general, wider and vital application in the future, I want to say here that, in my opinion, there is no doubt whatever that General MacEoin's election address as drafted by him or on his behalf did not contravene the provisions of Section 34, sub-section 1, of the Presidential Elections Act, 1937.
While I say that, I do not want anybody to misunderstand my attitude in making that point. I do not say that I am infallible or that my opinion is necessarily right, however much I may be convinced it is right. I have sufficient experience to know that various views may be taken of the construction of the statute and the solicitor for the Post Office is entitled to his own view; equally, I am entitled to mine. I hold my view very firmly, and I shall give a few relevant considerations to the Dáil, not legal arguments because I do not intend to subject the Dáil to legal arguments in this matter. I shall give just a few considerations in a few moments so that Deputies and people with independent minds in the country, the public, may know at least that there is a very strong contrary view to the opinion of the Post Office solicitor on which the Government acted so hurriedly and, in my view, without full consideration.
In my opinion, this Bill is unnecessary. I should have thought that in a matter of this kind where very fundamental democratic rights are at issue, the rights of candidates not merely at a Presidential election which is of very far-reaching importance, but at general elections. The rights of candidates at a general election should not in any way be impaired by what I may describe, with great respect to whoever gave this legal ruling, as a very narrow view of the section.
Let us assume there is something to be said for this narrow view, but there is something to be said also for the wider view. Surely, when the Government were faced with this, they ought to have said: "That is too narrow a view to take having regard to its conclusions and consequences which would certainly be against the public interest and against the democratic rights of candidates at a general election and we ought not to accept that narrow view." I take the view that the provision, whether it is in Section 34, sub-section 1, of the Presidential Elections Act of 1937 or Section 50 of the Prevention of Electoral Abuses Act of 1923, should be given wide interpretation.
My view is that while the words of the Act of 1923 are that the communication which is entitled to free postal facilities should contain "matter relating to the election only", and in Section 34 of the 1937 Act the words are:—"one communication relating only to the said election", there are far more topics that come within the ambit of that provision than there are exclusions and that that is the interpretation with which those two sections ought to be approached.
I certainly think that this Bill and the provision that has given rise to it must be taken completely out of the ad hoc situation of this Bill and brought into perspective as a matter which will create a precedent and may have a very serious or disastrous effect in the future. I should have thought the Government would have taken a liberal and constructive attitude and nobody would have raised a point against them if they had done so. Everybody would have accepted it as proper if they had said:—“Perhaps the Post Office solicitor is right but it is too narrow a construction.” But if they felt constrained to accept that view, ought they not have said:—“This is a matter of vital importance and of far wider consequence than the mere question as to whether General MacEoin should have his election address posted free under the Act.”
That brings the situation to the point that when a general election comes, a narrow interpretation will be put upon the Act of 1923 and nobody can safely get ready for printing, and have printed, an election address at a general election until he first submits the draft to the Post Office solicitor, to the Government and have it censored and passed by the censor. That is a situation we could not stand for and will not stand for and that is the issue raised in this matter. What they ought to have done in this case was to take out the word "only" in both instances in this section and come in here with the Bill and say:—"This section has been narrowly interpreted. While that may be correct, it is a matter of such vital importance that it requires not a piece of ad hoc legislation but a piece of general legislation so that the difficulty”—to which I have very briefly adverted—“may not be met with in the future and that the democratic right of a candidate at a general election to say pretty well anything he likes in an address at a general election should not be subject to the censorship of the Government or any legal adviser acting on the part of the Government.”
That is the big issue that must be faced in this case and it is because of that and for the other reasons I have stated that we could not possibly give the slightest assent to this Bill so long as it contains this Preamble.
Now, as I said earlier, I shall give some considerations to justify the opinion I have given. I have frequently said in the House, and it is a commonplace observation which does not require any authority to commend its acceptance, that nobody's opinion on a legal matter, however eminent he may be, is of the slightest value unless the reasons he gives for it are sufficiently cogent to bring conviction. If they wish, Deputies can test what I have said by that test. As I said at the outset, I do not intend to subject the Dáil to legal arguments but, to the Deputies and to the people outside, I propose to submit a few considerations in order to demonstrate the validity of the opinion I have concerning this matter and, more important still, the extraordinary effects which this interpretation would have in the future.
Deputies are aware that there is a provision in the Constitution which guarantees people the right of free association. In one context, that is interpreted as meaning that people can form themselves into trade unions. Deputies are also aware of the fact that Article 43 of the Constitution guarantees the rights of private property. Taking matters now outside the sphere of what is proposed to be dealt with in this Bill, some Government in the future—a strong Government with a big majority—may be sufficiently ill-advised to bring in legislation to abolish the constitutional guarantee given to people to form trade unions. An equally strong Government of the future may decide:—"We are sick and tired of private property. We will ‘communise'"—I do not know if there is such a word, but I use it in preference to the word ‘socialise'—"Private property; we will do away with the right to private property." Let us assume that a Bill is passed to that effect and, in consequence, there is a general election. At the same time, there is a referendum on the Bill which proposes to change a fundamental principle enshrined in the Constitution.
A referendum is held on the abolition of the right to private property or the abolition of the right to form trade unions. Is it seriously suggested here and now that a statute capable of the interpretation which can be placed upon this proposed Bill is to be allowed to remain upon the Statute Book? This Bill, if it is passed, will result in an utterly untenable situation. Is Deputy Norton, or any other Labour representative of the future, to be denied the right to ask his supporters to vote against this outrageous proposition doing away with the right guaranteed in the Constitution to form trade unions?
Suppose the same situation arises in relation to the "communising" of private property. A general election and a referendum are held simultaneously on that issue. Is it to be the position that I who stand for the rights of private property—let us leave out the personal equation—is it to be the position that a candidate, who stands not merely for general constitutional principles but also for ethical and moral principles and who takes a strong view on the maintenance of the rights of private property, will not be entitled in his election address to say: "I am against the abolition of the rights of private property and, therefore, against the proposal contained in the referendum, which is to be held on the same day as the general election, and I ask the people who are in favour of my point of view to support me in the general election and to vote against the abolition of the right of private property in the referendum?"
Will the position be that the Post Office Solicitor, or any other solicitor, the Attorney General, or anyone else, even the Supreme Court, will say that the introduction of such advice as that to electors makes the matter contained in the election address contrary to statute? Will they lay it down that there must not be a single word in the election address relative to the outrageous proposal to do away with the right to form trade unions or the right to private property? These are but two instances. I could give many more. But these two instances are sufficient in my view—I submit it is the correct view—to establish the danger inherent in this proposed Bill.
If the narrow interpretation, as I call it, is correct, then this will continue in the future and this will obtain in the future. This is a Bill allegedly to deal with the position in relation to Deputy General Seán MacEoin's Presidential Address. But when a general election comes, whenever it comes and in whatever circumstances it may come, nobody will be able to draft an election address without first getting the "O.K." from the Government of the day, from some civil servant, or some other person acting on behalf of the Government of the day. If the decision is adverse and a candidate says: "There is another view" the reply will be: "Here is the law. This is an Act passed in particular circumstances showing what you may or may not do."
This Bill will be the statutory yardstick. It will be the guiding statutory device for interpreting in a narrow way the Act of 1923 in reference to general elections. This is a vicious—perhaps I ought not to use that word; I withdraw it—this is a grave consequences against which we must guard in the proposed passage of this Bill. I adduce this overwhelming argument through the Dáil to the country so that people may know that the error here is not the error of Deputy Seán MacEoin but the error of the Government.
