Referendum Bill, 1994: Second Stage.

Wexford): I move: “That the Bill be now read a Second Time.”

The purpose of the Bill is to consolidate, with amendments, the law relating to the taking of a referendum. When enacted, the Bill will provide a comprehensive procedure for conducting a referendum, extending from the appointment of the polling day through the taking of the poll and the counting of the votes to the possibility of questioning the result by means of a referendum petition.

The Bill represents a continuation of the programme of electoral law reform which commenced a few years ago. The programme has already resulted in the amendment and consolidation of the Dáil electoral law in the Electoral Act, 1992 and similar treatment of the law relating to presidential elections in the Presidential Elections Act, 1993.

The existing law on the taking of a referendum is contained in eight enactments, the principal of these being the referendum Act, 1942. It is interesting to note that the 1942 Act was not used at all during the first 16 years after its enactment. The first referendum on a proposal to amend the Constitution was not held until 1959. In the 25 years since 1959, 16 referenda have been held. On average, therefore, there has been a referendum virtually once in every 18 months over the past quarter century. It is not, of course, possible to say whether this relatively high incidence will continue in the future. What can be said is that the referendum code is relevant and important and should be maintained in an up-to-date and fully operational condition.

In relation to the 16 referenda held to date, 11 of the proposals were approved by the people and five were rejected. In addition to the 11 amendments to the Constitution effected by referendum, two amendments took place during the transitional period allowed for in Article 51, within which the Constitution could be amended by ordinary law without a referendum.

In this Bill we have adopted the same approach as in the Presidential Elections Act, 1993. The provisions relating to Dáil elections, set out in the Electoral Act, 1992, which are common to all polls, are applied with necessary modifications. These provisions include the rules relating to postal and special voting, polling on islands, procedures in polling stations as well as arrangements for counting the votes and electoral offences. These core provisions will, as far as practicable, be identical for all elections and referenda, and will be supplemented by provisions unique to each individual code. In this way it is hoped to eliminate minor, and occasionally irritating, procedural differences that have crept into the different codes over the years.

The Bill introduces a number of worth-while improvements in referendum law. For example, under existing law a recount of votes at a referendum may be demanded in individual constituencies but there is no provision for a complete recount of all the votes cast. At a referendum voting might appear clear-cut in individual constituencies but the overall vote, when aggregated, could be very close. In that situation the only recourse for a person wishing to question the accuracy of the count is by means of a referendum petition to the High Court.

The Bill addresses this situation and includes a provision to enable the referendum returning officer to order a complete re-examination and recount of the votes cast in every constituency, if he or she considers it necessary. This procedure will be in addition to the existing right of any agent present at the count in an individual constituency to demand a recount of the votes in that constituency. The new provision could be an important mechanism in certain circumstances and would obviate the necessity for a referendum petition, with its associated delay, inconvenience and expense.

The Bill repeats the requirement in existing law that the proposal which is the subject of the referendum must be stated on the ballot paper by citing, by its short title, the Bill containing the proposal. The Bill will enable the Minister for the Environment to provide, by order, for the entry on the ballot paper of a descriptive heading to indicate the subject matter of the proposal. Where two or more referenda are taken on the same polling day this arrangement would assist electors in distinguishing between the separate ballot papers which would otherwise look very similar. Descriptive headings were included on referendum ballot papers in 1978 and again in 1992 when a number of referenda were taken on the same polling day. On each occasion, special legislation was enacted to provide for the inclusion of the headings on the ballot papers. An order providing for headings on ballot papers, pursuant to this Bill, will require approval in draft by a resolution of both Houses of the Oireachtas. It is envisaged that an order would be considered only when two or more referenda are being taken together.

Under existing referendum law, an elector who is unable to vote at his or her normal polling station because of employment by the local returning officer, may be authorised to vote at another polling station in the same constituency. The provision restricting the exercise of this facility to the constituency for which the elector is registerd will be removed by the Bill. It will be possible to authorise an elector, employed by a local returning officer, to vote in the constituency in which he or she is so employed. This will bring the referendum law into line with the Presidential Elections Act in this respect.

The law in relation to the questioning of a referendum by means of petition is being tightened up. Under existing law, leave of the High Court to present a petition must be sought within ten days of the publication of the provisional result; under the Bill this is reduced to seven days. The period allowed in the Bill for the presentation of a petition after the grant of leave by the High Court is three days; under existing law a petition may be presented within 21 days of publication of the provisional result. The objective of those changes is to provide adequate opportunity for challenging the result of a referendum while, at the same time, ensuring that the coming into force of a constitutional change, which may be urgent, is not unduly delayed.

The Bill effects a number of changes which, while minor in themselves, together constitute worth-while improvement in referendum law. An example of the kind of change involved is that the consent of the Minister will no longer be required for the appointment of a deputy local returning officer or for the selection of a counting centre which is outside the constituency concerned.

It should be noted that the Constitution provides for two types of referendum. Article 46 provides that every proposal for an amendment of the Constitution, having been passed or deemed to have been passed by both Houses of the Oireachtas, shall be submitted by referendum to the decision of the people.

Article 27 provides for the reference of a Bill, other than a constitution amendment Bill, to the people by referendum. This is referred to as an "ordinary" referendum, even though in practice, such an event would be quite out of the ordinary and no such referendum has yet taken place. Under that article, a majority of the Members of the Seanad and no less than one-third of the Members of the Dáil may jointly petition the President to decline to sign and promulgate as law any Bill which is deemed to have been passed by both Houses of the Oireachtas, on the grounds that it contains a proposal of such national importance that the will of the people on the Bill ought to be ascertained. The President may, after consultation with the Council of State, decline to sign the Bill unless and until the proposal has been approved by the people at a referendum or by a resolution of the Dáil following a general election.

Although the circumstances contemplated in Article 27 appear remote, the procedures in the present Bill will apply to "ordinary" as well as constitutional referenda.

As I have indicated, this Bill represents a further instalment in the continuing programme of electoral law reform. The objective of the programme is to update each of the separate electoral codes and, as far as practicable, consolidate each code in a single statute. The opportunity is taken to effect desirable amendments and, as far as practicable, to bring procedures in each code into line with one another.

This is a worthwhile exercise, given particularly, the special importance of electoral law and its direct relevance to each citizen. I hope that the Oireachtas will enact the measure as soon as possible. I commend the Bill to the House.

This legislation principally replaces the Referendum Act, 1942, and as half a century has passed since then it is time to reconsider the question of referenda. This Bill deals with constitutional referenda as well as those held pursuant to Article 27 of the Constitution. I hope we have learned from one mistakes in regard to the wording and presentation of referenda.

I welcome the inclusion of a number of clauses in the legislation, particularly the provision for a recount in the case of a close result. That is important as, in general, referenda generate more enthusiasm, controversy and intense campaigning than ordinary elections. The electorate get very worked up about referenda, particularly those which propose changes to our Constitution. As a result of the Programme for Government agreed by the two parties in Government we will face a number of referenda in the lifetime of this Dáil. For that reason I welcome the provision for a recount in the event of a close result in an election. One can no longer anticipate anything in that regard.

Under the legislation the Minister may provide an order for the inclusion of a descriptive heading on a ballot paper where it is considered necessary, but the wording of that section should be stronger. Will the Minister consider substituting the words "shall" or "must" for the word "may"? The Minister stated:

The Bill repeats the requirement in existing law that the proposal which is the subject of the referendum must be stated on the ballot paper by citing, by its short title, the Bill containing the proposal. The Bill will enable the Minister for the Environment to provide, by order, for the entry on the ballot paper of a descriptive heading to indicate the subject matter of the proposal.

When two or more referenda are held on the same day will the Minister have to include a descriptive heading on the ballot paper? That is why I suggested the wording of that section should be stronger.

The November 1992 referenda on the right to travel and information is still causing confusion, partly because the heading on the ballot paper was not properly defined. People want the wording on ballot papers in referenda to be simple and uncomplicated. In other words, what the people are being asked to vote on should be clearly spelt out. For example, if the Government put to the people a referendum on rejection or acceptance of abortion I know what they will decide. The objective of any referendum dealing with constitutional change should be to have a clear descriptive definition on the ballot paper. The matter on which the people are asked to vote should be set out in clear, unambiguous and precise terms, particularly if it involves changes to our Constitution, which could have serious repercussions for many years. I welcome the Bill if it provides for that.

I have no difficulty with the electorate deciding by way of referenda to allow a change in our Constitution if what they are voting on is clearly spelt out. The Minister should be required to include a descriptive heading on the ballot paper in the case of referenda dealing with a change in our Constitution. Section 34 of the Bill refers to this matter.

Debate adjourned.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.