I am grateful for an opportunity to speak on this Bill which tidies up legislation that has stood the test of time, in some respects for the best part of half a century. Deputy McCormack made a significant point about the statement for the information of voters issued at the time of a constitutional referendum as under section 23 of this Bill. I voted "no" in the referendum on what was called the substantive issue and Deputy McCormack, from his public utterances on the matter, probably voted "no" also, but from a different perspective. I agree with Deputy McCormack that the information furnished to voters on that day caused considerable confusion on both sides so that it probably did not make a great difference to the outcome of the vote which was decisive. However, it raises the issue of whether it is open to a majority in both Houses of this Parliament to issue to the people a statement about the effect of a proposed amendment to the Constitution, which is manifestly false or so propagandist and distorting of the issues in question as to be gravely misleading. I note that in this Bill one might think one of the grounds for a referendum petition was that the Houses of the Oireachtas in issuing a statement to the voters had misled them and that 51 per cent of each House of the Oireachtas had put before the electorate a deeply misleading account of what the referendum was about and the effect of the proposed change.
The Tolerance for the West Referendum held in 1968 was couched in terms of tolerance. People from the east may think there was nothing tolerant about it, that it was just a blatant effort to water down the principle of one person, one vote. However, I envisage a circumstance in which 51 per cent of Deputies decided to put a blatantly propagandist and extremely argumentative statement for the information of voters into circulation which was misleading to voters and which created false fears or expectations of a referendum. There should be provision for that issue to be the subject matter of petition after the election so that there is some sanction on a majority not to change the Constitution in an underhand or misleading way, or alternatively, the terms of the section 23 notice should be capable of being reviewed as, for instance, in the case of the validity of a nomination in a presidential election.
In presidential elections a judge appointed by the President of the High Court, or perhaps the President of the High Court, must adjudicate on the validity of nominations for the position of President. There should be provision for a significant number of Members of this House — perhaps ten or 15 — to rule on the validity of nominations in the context of a referendum and to argue that the statement of information is misleading. A preliminary ruling should be made by a person independent of the majority in both Houses of the Oireachtas. I accept, as Deputy McCormack said, that it would be possible for 51 per cent of the people in this House and in the Seanad to compile a deeply misleading but apparently authoritative statement in which the argument is seriously distorted and the issues implicit in a constitutional amendment completely ignored.
In so far as these statements are made, they should be relatively neutral, seen to be neutral and capable of being reviewed before the result if someone points to an aspect of the referendum and says there is potential for serious misrepresentation because of the choice of wording agreed by a majority of each House of the Oireachtas under section 23.
Section 23 states that a statement on the subject of the referendum will be for the information of voters. However, as we all know information is one thing while argumentation is another. In that context some mechanism should be built into our law to prevent information turning into misinformation or propaganda and to prevent this being circulated at the expense of the State with a view to creating a false impression in the minds of voters. After all, one would assume that the State is, generally speaking, supposed to be neutral when it comes to the sovereign power, the people, deciding the Constitution of the State, that the State is not entitled to be blatantly partisan in a referendum and that a majority in this House and the Seanad are not entitled to distort the argument for their own ends.
My next point is probably somewhat obtuse, nonetheless it should be raised. It relates to the provisions in sections 11 and 12 in respect of an ordinary referendum. Most people forget that under Article 27 of the Constitution it is permissible for a majority in the Seanad to petition the President to have a Bill enacted against the wishes of the Seanad referred to the people for their judgment. Article 27.6 states that in every case in which the President decides that a Bill, the subject matter of a petition from the Seanad which is supported by a significant minority of the Dáil and a majority of the Seanad, contains a proposal of such national importance that the will of the people in regard to it should be ascertained, he or she is obliged to inform the Taoiseach and the chairman of each House accordingly and to decline to sign the Bill or promulgate it until such time as the will of the people has been ascertained by what is termed in the Bill as an ordinary referendum. Alternatively, a general election may take place within a period of 18 months and the matter will then be decided by a resolution of a majority of the Dáil, thereby obviating the need to have a special referendum on the issue.
Having looked at Articles 27 and 47 of the Constitution I can find no authority for the proposal in section 12 — I am not certain I am correct — that where the Taoiseach is informed in accordance with Article 27 of the Constitution that the President has decided that a Bill to which that Article applies contains a proposal of such national importance that the will of the people thereon ought to be ascertained and — this is the curious proposal — the Government determines that a referendum for the purposes of ascertaining the will of the people on the proposal shall be taken, the Minister shall appoint the day on which the referendum will be held. I cannot see in the Constitution — I will be glad to be enlightened if I am wrong — any role for the Government in deciding whether the matter should be put to the people. The Bill could be a Private Members' Bill which has been put through against the wishes of the Government. I cannot see anything in the Constitution to suggest that the Government should be the deciding body on the holding of a referendum. I suspect it should not. If I am wrong I will be glad to be enlightened, but I do not understand why the Government is being given this statutory role. I wonder if it is wise for this House to surrender to the Government the decision as to whether a referendum should be held in such circumstances.
This issue is highly unlikely to cause major controversy because the chances of the Seanad holding a different view from this House are very remote. However, if the Seanad was to petition the President who decided that a Bill should not be signed without putting the matter to the people by way of a referendum, it should not be a matter for the Government thereafter, under the Constitution at any rate, to decide whether the matter should be put to a referendum: I imagine it is primarily a matter for both Houses of the Oireachtas rather than the Government which may be hostile to a Bill. Will the Minister say why the Government is given a role under section 12 (1) (b) in deciding whether a matter should be put to a referendum? Section 12 (3) states: "whenever the Government determines that an ordinary referendum shall be taken ...". I do not see any justification for confining this matter to the Government.
On the wider point that this raises, namely, the relationship of the Seanad to this House and the reality — or unreality — of the section 27 ordinary referendum proceedings, on occasion some people seem to forget just how unlikely it is, under our constitutional scheme of things, that the Seanad will ever be at variance with the membership of this House for a prolonged period. This is for the very simple reason that a majority of the Members of this House can determine the manner in which the Seanad is elected — largely speaking, this is left to law — and that government would, in the normal course of events, become virtually impossible if the Seanad was hostile to the Government of the day. If a majority in the Seanad was hostile to the Government, the making of a simple regulation under the Road Traffic Acts, which requires the approval of both Houses, and annulling regulations would become impossible.
Whereas some people have argued in favour of a bicameral legislature, based on the need to have some kind of constitutional check on an all powerful majority in the Dáil, since the Dáil determines the manner in which the Seanad is elected and which in any event, because of our system of government, is determined largely by delegated legislation through statutory instrument, it is vital to the day to day existence of any Government that it has a majority in the Seanad. In that context the reality of the section 27 petition procedure for an ordinary referendum is largely theoretical. It is undemocratic that in most cases delegated legislation requires, under statute, the approval of the Seanad. As I understand the Constitution, even if the Seanad disagrees with us we are free to legislate against its wishes after a certain period of time unless it can invoke the President's power under Article 27 of the Constitution.
On delegated legislation, the pre-eminent role of this House is not recognised: its role is reduced to an equal role to that of the Seanad and each House is given the right to cancel any regulation and to refuse to revoke any legislation. From a purely democratic point of view, I wonder in the case of a divergence in view of a lasting and serious kind between this House and the Seanad if it would be proper to permit the Seanad to effectively obstruct the governing of the country.
I have probably digressed from the terms of this Bill but since it deals with ordinary referenda and there has never been one, I was tempted to be slightly irrelevant by commenting on the reason there has never been an ordinary referendum, that is, the Seanad must, of necessity, be kept under the political control of the Government of the day. Otherwise there would be, as Lord Denning said in a different context, an appalling vista from the point of view of governing the country.
A second issue that arises in this Bill is the entitlement of people to vote in referenda. I am pleased that at long last some sense is beginning to trickle into the debate as to who may vote in an election. For decades if one's name disappeared from the register for no good reason and through no fault of one's own, that was just too bad. Now, within a specified period of the calling of an election or a referendum, one can prove one's name ought to be on the register and that one lived in a place which would entitle one to a vote at the requisite time. That is a great improvement.
Citizens who are abroad are, in certain circumstances, afforded a vote. Military personnel on UN duty and members of the Garda are afforded postal votes in general elections and referenda. Diplomats, I understand, are afforded a similar concession but citizens who are abroad, generally speaking, are not entitled to vote in referenda. I wonder why somebody who is a citizen of this State and who, according to the Constitution, has certain duties by virtue of that, is deprived of his or her right to vote in a referendum of great significance to that State.
We should remind ourselves that fidelity to the nation and loyalty to the State are fundamental political duties of all citizens. That is not a geographical concept; it is laid out in Article 9.2 of the Constitution. I do not see why the State commands the loyalty and demands the fidelity of somebody who is temporarily or, for a number of years, absent abroad while, at the same time, when it comes to changing the nature of the State by a constitutional referendum, changing its Government or electing a president, that person may have no say. Why do we regard citizens' obligations to the State as enduring, irrespective of whether they reside within the State for any given period but, at the same time, regard the analogous entitlement to a say in how a democracy is operated, suspended by reason of their absence from the State?
Deputy McCormack would agree many people who work all week in England come home when they can afford to, by aeroplane to Knock Airport, to other areas in the west of Ireland, and to Dublin, at the weekends. Because of our practice of holding referenda and elections on Wednesdays and Thursdays, those people never get an opportunity to vote. It is unreasonable to suggest they must spend several hundred pounds to return to Ireland and to their workplace. It is also unreasonable to require them to travel, having arrived in Knock Airport, for another hour or two to get to a polling station. That is quite impractical.
People who are entitled to be considered as resident here at weekends, if not ordinarily resident during the working week, should be accommodated in our voting system. Likewise, someone who works abroad for periods of six months or one year at a time, or somebody who, for instance, has decided to do voluntary work overseas with one of the voluntary agencies, should not be expected to cash in his democratic chips when he leaves this country simply because it is too much trouble to allow him to vote.
The Constitution states that seats must be apportioned in accordance with population. Two issues apply here. That requirement does not necessarily apply in presidential elections and in referenda because in those circumstances, the fact that people hail from one part of the country or another is utterly immaterial. If one is a citizen I see no reason why one cannot vote for the President or in a referendum to amend the Constitution, regardless of where one is in the world. I suppose an ordinary referendum would be governed by the same principle.
There is a worthwhile distinction to be drawn between what people believe the Constitution says and what it actually says about the apportionment of seats. All it requires is that seats should be distributed fairly and evenly in accordance with the Constitution. It does not say that necessarily has any clear and unambiguous connection with the number of voters per Dáil seat. In the west of Ireland where there is much emigration and fewer families for instance, the number of voters per Dáil seat is higher than in somewhere like Deputy Harney's constituency of Dublin West, where many young families are included for the purposes of handing out seats but cannot express a view because they are not 18 years of age on polling day. There is no direct and unbreakable link between the number of people who can vote in an election and the number of seats in the constituency. There is only a necessary constitutional linkage between the population of that constituency, as determined by a census, and the number of seats which can be filled for it. In that context, those who say there is some constitutional problem with affording people overseas a right to vote miss the point that there is already an in-built flexibility in the way in which we allocate seats at the moment, that there is not a necessity to allocate Dáil seats strictly by reference to the number of votes that can be cast and that it applies to population only.
When one takes the view that population is the determinant of entitlement to Dáil seats, one does not have to say that numbers of voters is the entitlement. It is perfectly reasonable, therefore, for emigrants or citizens abroad to cast their ballot in a Mayo election, if they originate from Mayo, without breaching the spirit of the Constitution or, indeed, its letter. I say that in the context of Dáil elections, because people have challenged the capacity of the Oireachtas to confer the franchise on citizens who live abroad. There is such a right, and some day citizens who live abroad will bring an action in our courts — I am not looking for the case — to say they are unfairly deprived of their right to vote in Irish elections on grounds of so-called theory when in fact what we are dealing with is practicality. In this electronic age, it should be possible for people to vote without too much difficulty in Dáil elections and referenda, if they are Irish citizens and are otherwise entitled to vote, irrespective of where they may be in the world on election day.
I know some people take the view — no taxation without representation and no representation without taxation, but I do not think that is fair if the State demands of all its citizens fidelity to the nation and loyalty to the State. If the very nature of the State itself can change by way of a constitutional referendum, it seems to me that the idea of owing it loyalty, without having a right to be consulted about it, is inherently self-contradictory.
Having being around the Houses on those two issues, of course my party has no objection to this Bill and supports the codification and modernisation of the referendum procedure. One tiny, last footnote that annoyed me was the provision in the three constitutional referenda on the pro-life issue, or whatever one wants to call it — right to information, right to travel and what was termed the substantive issue — each referendum involving Acts to change the Constitution having a sequential number, so that we had the Eleventh, Twelfth and Thirteenth Amendment of the Constitution Acts. One of them, refused by the people, dropped out of the order so that we were left with the Thirteenth and Fourteenth Amendments of the Constitution without the Twelfth; there never has been a Twelfth Amendment of the Constitution. This means we have the Thirteenth and Fourteenth Amendments of the Constitution but not the Twelfth.