Referendum Bill, 1994: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Section 24 (4) (a) states:

At a referendum the Minister may, by order, provide for the entry at the beginning of the front of the ballot paper to be used at the referendum of a heading indicative of the proposal which is the subject of the referendum and the referendum returning officer shall cause such heading to be printed on the ballot papers.

The Minister conceded that where two or more referenda are held on the same day the heading of the referendum will be inserted on the ballot paper. In the past confusion has arisen where more than one referendum has been held on the same day.

On 25 November 1992 three referenda were put to the people, namely, the Twelfth Amendment, the Thirteenth Amendment and the Fourteenth Amendment of the Constitution Act, 1992, and a general election. Four ballot papers were handed to people on that day. It is important that in future referenda the subject of the referendum should be clearly stated on the ballot paper. That is why I am anxious that the word "may" should be replaced by the word "shall". The wording on the polling card sent to each elector before that election stated:

You may vote at the Referenda on three proposals:

White Ballot Paper — Right to Life

The Twelfth Amendment of the Constitution Bill, 1992 proposes to amend Article 40 of the Constitution by the addition of the text here following to subsection 3º of section 3 thereof:

"It shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life, as distinct from the health, of the mother where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life, not being a risk of self-destruction."

The white ballot paper contained similar wording to that on the polling card. The heading on that ballot paper caused confusion for the electorate. The holding of three referenda and a general election on the same day also gave rise to confusion. There were three different ballot papers, namely, a white ballot paper for the Twelfth Amendment, a green paper for the Thirteenth Amendment and a pink paper for the Fourteenth Amendment. When votes were counted for the white ballot paper the total number of votes cast in favour of the proposal was 572,177 and against 1,079,297 — the proposal was lost by a 2:1 majority. People who campaigned for a "No" vote on that occasion were diametrically opposed in their objectives. The unclear heading and explanation on the white ballot paper was partly responsible for the result in that case.

The November 1992 referenda on the amendments to the Constitution were held because the Government of the day did not get matters right in 1983. Following the X case in 1992 there was a rushed referendum and because matters were not spelt out the Government got matters wrong. The 1993 amendment to the Constitution was an attempt to prohibit unlawful abortion as set out in the 1861 Act.

In my constituency of west Galway the votes in respect of the referendum on the Twelfth Amendment of the Constitution Act, 1992, resulted in 15,557 voting in favour and 31,337 voting against it — a 2:1 majority against it — the highest vote recorded.

The highest percentage of votes was in Longford-Roscommon, the Taoiseach's constituency, where 16,155 people voted in favour of the proposal and 25,701 voted against it. The highest recorded spoiled vote, 3,390 in that constituency and the second highest 3,163 in my constituency was simply because people, either deliberately or due to failure to understand the ballot paper, refused to vote or spoiled it. The Minister should clearly spell out on Committee Stage what exactly will be put on the ballot paper. On the occasion to which I referred people were not clear as to what they were voting on, as was evidenced by the result of that election. On that day the vote on the green paper was carried by 1,035,308 as against 624,000 and the vote on the pink paper was carried by 992,000 as against 665,000. It is clear that there was much confusion in that referendum.

There is provision for the transfer of votes. A person employed by a local returning officer may be authorised to vote at the polling station at which he or she is employed, even if that is outside his or her constituency. That is a welcome provision for a referendum because people working at polling booths outside their voting areas were always deprived of the opportunity to vote in a referendum. I welcome the provision on eligibility of invalids or people in wheel-chairs to vote at polling booths other than their local polling booths. This is very sensible because very often people were discriminated against due to lack of access to polling stations.

I will table amendments on Committee Stage. This Bill is generally a tidying up measure and concern about referenda, particularly on amendments to the Constitution, should be dealt with, and in so far as this Bill is a step in that direction, I welcome it.

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.

We were supposed to get legislation.

Yes, but the next time we put three separate referenda to the people to amend the Constitution they should carry an internal mechanism so that, if any is not passed, we will close up the numbers. In fact, this is not the Fourteenth Amendment of the Constitution but the thirteenth because the Twelfth Amendment failed. As I said, the next time we approach this issue, whoever decides these matters, should insert a mechanism so that if a series of referenda is held on the same day, and one is not passed the numbers will slip back to make sense rather than have the little vacuum that now exists in our constitutional history.

A tiny reminder.

This Bill is about consolidating and updating the law on referenda and is generally welcomed. It comprises part of the revised electoral programme; we had the Presidential Elections Act, 1993, and in 1992 the Electoral Act, which appear to be part of the Department's overall programme of updating the electoral laws.

It was interesting to hear the Minister record the number of referenda held since 1942 — I think he said the first was held in 1959, when the Constitution was relatively new and there was no public or political demand for any changes within its first 20-odd years. Since then there have been 16 referenda held over the past 25 years, the Minister holding that that represented one every 18 months. That makes it appear rather a lot but, when one remembers that at least three were held on the same day the impression that one is held every 18 months is not valid; they are much less frequent.

Sometimes people appear to suggest that we should abolish the holding of referenda and draft a totally new Constitution. I am against that theory. It is better to settle for what we have, even with its imperfections, altering it only in accordance with public demand.

Many provisions of this Bill represent an endeavour to eliminate procedural differences, leading to a certain co-ordination of the various electoral Acts. To date, I found it strange that a returning officer could not call for a recount in all constituencies unless some agent or representative on the ground so demanded. Most electoral results have been fairly clear-cut but the aggregate figure might not necessarily be so clear. I welcome that provision.

When I first heard about the introduction of this Bill there was mention of the word "petition" from which I must admit I took the wrong meaning. I thought we were introducing some sort of procedure where the public could request a referendum. However, I accept that I was misled by my interpretation of the word "petition". There is no mention of public input in the provisions of this Bill, which is rather surprising because, in many respects, a referendum represents the ultimate in democracy, that is the direct voice of the people. In many countries there is a procedure laid down by which the public can demand that a referendum be held on a particular issue. I am not recommending that we hold one every second Sunday like the Swiss; whether that perception be correct or not, it would appear that the Swiss hold quite a lot of them. I do not recommend that practice. Nonetheless, I was surprised to hear mention of the word "petition" because I thought that was the direction in which we were moving. After all, we pride ourselves on our democratic system, yet our politicians, now and in the past, appear to zealously guard not merely the right to hold a referendum but the right to select the actual wording, to decide everything about the referendum, including the decision whether to take it on board. Even when it has been decided to hold a referendum it appears that political parties do not leave it to the people but rather endeavour to influence its whole direction.

Traditionally Governments appear to have been wary of holding referenda, probably for the same reason, while Oppositions appear to favour holding them, perhaps endeavouring to trip up the Government of the day. Why is it that Governments or political parties feel they must adopt a line on any referendum that arises? Why do they feel they must be identified with it, that they must be seen to be pushing for or against it? Why can we not just put referenda to the people? By all means impart the relevant information in a fair manner and let the people decide whether to support it——

——and a free vote.

Perhaps we should allow that here first and then let the people outside do so.

To date, whenever a referendum has been held, it would appear that the Government of the day have felt compelled to push it through; if they win, regarding it almost as an endorsement of their policy, not merely on that matter, but of their general economic, social, whatever policy, whereas the Opposition of the day tends to jump on the bandwagon if the Government is defeated in such a referendum. If the Government is defeated it is regarded as the voice of the people speaking against everything that Government will have done over the preceding two years. I wish Governments would just hold referenda and let the people decide.

I could talk about the divorce referendum which has been mentioned recently. For example, there has been talk about some politicians being nervous about it, sensing that the public might not be as definite in their views as they were some time ago. Why should there be nervousness one way or the other since the Fianna Fáil-Labour Programme for Government indicated that a referendum on divorce would be held? I have no problem with that since it represents an expression of the democratic voice of the people but can we not distinguish between holding a referendum and being compelled to convert it into Government policy, encouraging and cajoling the public into voting for or against it?

Or even spend money in making them vote one way or another.

In any event it would cost money. I do not know the reason for Governments historically adopting a strong pro-referenda attitude while the Opposition take the opposite view. I support the idea of holding a referendum — not merely on the issue of divorce — whenever a sizeable number want it. I do not know how we can judge a sizeable number, perhaps it can be done through opinion polls. Obviously, at present many people want a referendum on divorce and a number would like another referendum on abortion to return to the 1983 position. Probably a number of people would like a referendum on bail laws and on several other items. I am not suggesting that we hold a referendum when 100 people or 10 per cent of the population request it but if it is evident that a sizeable number — 35 per cent to 40 per cent — want a referendum there should be a procedure whereby Governments allow it to take place.

In a way it is political arrogance that politicians and Governments feel that the people should decide what is put to them. I am taken aback at that point of view. As I said before I would like to see a system where Governments did not have such a strong view.

Deputy McCormack referred to the wording on the ballot paper. Certainly there was confusion in 1992 and probably at other times in the past. The pro-life people thought there was no confusion surrounding the referendum in 1983, yet ten years later they are told the decision of the people was the opposite to what they thought. The wording on the ballot paper should always be clear and definite and if it is not it is a reflection on the Government of the day. I do not know whether some people foresaw fears or dangers down the road but, if so, that was not the general public perception. The people voted in a certain manner believing they were expressing their point of view in a democratic manner. It is strange that ten years later they are told that when they voted "Yes", they should have voted "No". That issue certainly warrants another referendum. It is clear, therefore, that it is not sufficient to give a summary of the short title on the ballot paper. The wording of any referendum must be crystal clear so that nobody is confused.

Section 14 deals with the returning officer. Those working for the returning officer should be allowed to vote even if they are outside the constituency in which they have a vote. That facility should be extended to agents authorised by the returning officer to be at the polling station on the day in question. If the returning officer is making arrangements for his own staff he could also make arrangements for the duly authorised officers.

Is Bille tábhachtach é seo mar tabharfaidh sé an dlí faoi reifrinn isteach i líne leis an dlí a bhaineann le toghcháin sa tír seo. Bhí gá le athruithe agus tagaim go mór leis an méid a bhí le rá ag an Teachta McDowell nuair a d'fháiltigh sé roimh na hathruithe ó thaobh na dtoghchán de.

Cinnte, ba dhearmad mór sa chóras toghchánaíochta seo againne gan a bheith in ann vótáil go dtí tar éis an chéad mhí Aibreáin eile muna raibh tú ar an liosta vótála i mí Aibreáin cheana féin. Dá bhfaighfeá amach i mí na Samhna, mar shampla, nach raibh tú ar an liosta ní raibh rud ar bith go bhféadfá a dhéanamh faoi sin go dtí an bhliain dar gcionn. Is ioma duine nach raibh in ann vótáil i dtoghchán mar nach raibh sé ar an liosta vótála ar chúis amháin nó ar chúis eile.

Tá áthas orm go bhfuil an fhadhb seo á cheartú. Bhí mé sa Úcráin le seachtain ag breathnú ar thoghcháin ansin. Is aisteach an rud le rá é go raibh córas anéifeachtach acu siúd le breathnú i ndiaidh na ceiste seo. Bhí na cláir thoghcháin suas chun dáta acu agus chinntigh sé sin go raibh deis ag gach duine den phobal vótáil sna toghcháin sa tír sin. Is maith an rud é go bhfuilimidne ag teacht i líne leis an gcineál sin ruda anois.

Freisin, fáiltím roimh an fhoráil gur féidir le duine ata i mbun bosca vótála, vótáil i mbosca nach bhfuil fiú sa dáilcheantar ina bhfuil siad. Mar, ar ndóigh, is rud náisiúnta é reifreann cosúil le toghchán Uachtaránachta. Mar sin cuireann sé áthas orm go bhfuil an soláthar sin sa Bhille. Tá córas an reifrinn thar a bheith tábhachtach agus ba cheart dúinn é a chaomhnú agus a chosaint mar go bhfuil an daonlathas bunaithe ar an gcóras sin.

The system of referendum, of referring fundamental decisions to the people, is a pillar of democracy. Many politicians resist this system, they find it cumbersome and feel it would be better to leave all decisions to parliament. I am not one of them. One of the most precious democratic rights of the people is the right to decide fundamental matters of policy by virtue of the fact that all constitutional change has to be referred to them. Such decisions should not be made by a small elected group of people.

We have always used a referendum in the context of constitutional change but there is provision in the Constitution, under Article 27, to use the referendum in the case where not less than one-third of the Members of this House and a majority of the Members of Seanad Éireann want to petition the President to have a referendum on a Bill they consider as being of national importance. As Deputy Ahern stated I see no reason we should be afraid of the people's judgment because we are here to serve them. This provision of the Constitution could be used to ascertain what the people consider important on any particular subject. There are subjects which are considered to be of national importance and there are matters of great public concern. It is good that the people can be consulted on such issues.

As regards constitutional change, the history of the various referenda show that people know their own minds in these matters. The result of the first referendum in 1959 showed that the people were able to make what they thought was a discerning decision in that they voted in one direction in the presidential election but refused the advice of the candidate in question in the referendum on the same day. The minimum number of people who voted in two opposing directions was 133,000 which shows a significant maturity on the part of the populace at large in expressing their will.

We should not be shy about putting constitutional change to the people. If the House feels a Bill should be passed but there is a constitutional problem in doing so, the people should be consulted about the matter. We have often heard it said, particularly in relation to clauses concerning private property on which the courts gave rather strange decisions, that something could not be done because of constitutional difficulties. This was so regarding compensation in planning cases, etc. In spite of there being no constitutional change some constitutional problems have disappeared which leaves me in wonderment at the legal mind. If there was a constitutional problem I cannot understand why constitutional change was not proposed at that time.

We have had 16 referenda and the people saw fit to reject five. This shows a mature electorate which knows its own mind. We should trust the people and accept their verdict. There was one case where the issue was muddied but, in general, so long as issues are clear the people know their mind and make rational decisions. When it comes to divorce, if we believe times have changed and the people have changed their minds there is no harm asking them but if, in their wisdom, they give the same answer, we should accept that with good grace.

As a democrat, I am opposed to the concept that we know better than the people when it comes to the Constitution and that if we could only throw away the burden of the Constitution we could do much better for the people. That is arrogant in the extreme. If Members do not like Articles in the Constitution they should have the courage to put them before the people one by one. I am not a person who, for practical rather than sentimental reasons, would favour throwing out one Constitution and replacing it with another. If such an event occurred all the case law based on constitutional decisions would be set at nought as would the rights secured through Supreme Court interpretations of the Constitution.

I do not detect any great desire among the people for wholesale change of the Constitution, although there may be clauses in it which people might like to decide on. Many people cherish the fundamental control imposed on Government and the administration by the Constitution. There will be a reluctance to make any fundamental change. If change is being proposed in the future people would prefer if the issues were put before them one by one rather than in a package so that they could give their verdict separately in each case.

I welcome the Bill. The fact that it brings into line the various codes of practice in elections is very important as is the fact that we will have a more up to date electoral system. Any anomalies in the law between the various types of election will be eliminated.

Deputy McDowell referred to emigrant voting. It is technically a more simple matter in the case of presidential elections and referenda. We would have to look carefully at whether people would vote at polling stations or have a postal vote. We must ensure that the proportion of postal votes at any time is small in relation to the total number of votes in any election. I accept that the nature of society has changed and people have greater mobility. It is more difficult now to define one's place of residence because there are families where one person is working abroad but comes home at weekends.

Another issue is the right of people to have a vote in their home place. People who grew up in rural areas but are domiciled in cities and return every weekend to their home place would prefer to have the option of voting in their home place than in the place where they work and are resident for most of the week.

As regards Sunday or weekend voting there could be problems with minority religious groups if such change were made. In summertime there might be serious difficulties with Sunday voting because people like to attend sports events and so on on that day. It might be worth considering Saturday voting as people would have more opportunity to be at home than on a Wednesday or Thursday. The tradition of mid-week voting definitely causes problems for people studying away from home. We should look afresh at setting the day for elections to see if we can come up with a solution that favours the majority.

The thrust of election legislation should ensure the security of the election from malpractice or cheating and balance that security with providing all citizens with the greatest possible opportunity to vote. Those two criteria must always be to the forefront when considering election legislation.

This is one of a series of related Bills which move in that direction. I welcome it and wish it a speedy passage. I hope we will continue to see the right of reference to the people as one of our most fundamental democratic rights — something many other States do not have but would dearly love to have — as the cornerstone of our people-led open democracy.

Wexford): I thank Deputies for their contributions and for extending a welcome to this Bill which consolidates existing referendum law. Deputies raised a number of questions and put forward suggestions and I will try to deal with them. Deputies McDowell and McCormack raised questions on section 24, which enables the Minister, with the prior approval of both Houses, to provide for the inclusion of a descriptive heading on referendum ballot papers. The intention is that such headings could be included where two or more referenda are held on the same day. The purpose of the headings will simply be to assist electors in distinguishing between the ballot papers.

The decision on whether to include headings would be ultimately for the Oireachtas on each occasion. It could not be made obligatory, as Deputy McCormack suggests, because we cannot tell a future Oireachtas what it must do, but the question may be teased out on Committee Stage.

In a referendum people are voting on the Constitution Bill as passed by both Houses. The ballot paper must, therefore, present the question quite starkly, and it would be wrong from the constitutional viewpoint, to include any paraphrase or explanatory material on the ballot paper. The purpose of the heading would simply be to distinguish one paper from the other and it could not attempt to explain the issue.

The principal formal means of informing electors of the subject matter of the referendum is the statement for the information of voters, referred to in section 23. Such a statement has been issued at each referendum in the past and it is envisaged that this would continue. The official methods of informing voters about a proposal to amend the Constitution are: copies of the Bill would be made available free of charge for inspection at every post office and for purchase at a very nominal fee; a statement prescribed by both Houses is put on the polling card and sent to every elector and it is printed on the posters displayed in every polling station. Deputy Michael McDowell's suggestion that the Houses of the Oireachtas may prescribe a misleading statement is, a bit far fetched and I hope that would not be the case. In the past such statements have been fully agreed by all sides in both Houses of the Oireachtas.

Where was the Minister of State in 1992?

(Wexford): The question of voting, by emigrants has been debated in this House on at least eight occasions. The political parties have taken different views: from giving full voting rights to emigrants to Fine Gael's suggestion of appointing a Senator to represent emigrants and so on.

Article 47.3 of the Constitution provides that:

Every citizen who has the right to vote at an election for Members of Dáil Éireann shall have the right to vote at a Referendum.

That means that to have a vote in a referendum one must first be entitled to vote in Dáil elections. It would not be possible in this Bill to extend the vote to any citizen who does not have a vote in elections to the Dáil. As already indicated on a number of occasions, the legal advice to the Government is that under present constitutional provisions there is only limited scope to grant voting rights to those temporarily absent from the country.

The Programme for a Partnership Government accepted in principle that there should be constitutional change to give voting rights to emigrants and this issue is being examined and decisions will have to be taken as soon as possible.

There is a number of fundamental questions which must be addressed in developing proposals for voting by emigrants. First there is the question of fairness to resident electors. Deputy McDowell raised questions on this in his speech. By almost any test, the standing in relation to the State and its Government of a person living outside the country is different from that of a permanent resident. This is often referred to as the "representation-taxation" issue but it is a much wider issue. Emigrants' circumstances — jobs, wages, housing, health, welfare and environment are determined by the laws of the host country, not by ours. Justice would require that this difference should be reflected in some way in the nature of the representation afforded to emigrants.

We must make adequate arrangements for the secrecy and security of the ballot if emigrants had a vote. To permit voting by large numbers of persons, particularly those outside the State, without adequate safeguards could open the way for electoral abuse which could affect the composition of future Dála and Governments. Suggestions in the Programme for a Partnership Government are being examined by the Department of the Environment along with suggestions by Members and I will report back as quickly as possible.

Deputy McDowell drew attention to the fact that we now have the Thirteenth and Fourteenth amendment to the Constitution but there is no Twelfth amendment. This is a matter to be sorted out by the Attorney General. I do not know the answer. Deputy McDowell's solution that some mechanism to deal with that should be included in future Constitutional Amendment Bills may not be possible having regard to article 46.4 which provides that:

A Bill containing a proposal or proposals for the amendment of this Constitution shall not contain any other proposal.

I will ask the Attorney General to comment on Deputy McDowell's views but I am not sure we will get an answer——

I do not think a citation is a proposal.

(Wexford):——but we will come back to this issue on Committee Stage.

Deputy Noel Ahern suggested that there should be a procedure whereby non-contentious proposals could be put to the people at the request of a number of electors and that the Government should take a neutral line on the question. I think what he has in mind is a proposal for Constitutional change. An initiative along these lines was contained in the 1922 Constitution but it was never used and it was probably inoperable. Fianna Fáil attempted to operate that provision in the 1920s and the Government of the day repealed the provision.

The courts allowed it to do so.

(Wexford): Deputy Ó Cuív mentioned the possibility of Sunday voting. The Electoral Act, 1992, removed the statutory barrier to voting on a Sunday. There is no statutory reason an election or referendum should not be held on a Sunday. It is a matter for decision on each occasion which day should be appointed as polling day. As the Deputy mentioned, some minority churches would have a difficulty with the concept of voting on a Sunday on the grounds of conscience and the position of these churches must be taken into account.

The Deputy also mentioned the possibility of Saturday voting. That would create difficulties for the Jewish community, for instance. The question of weekend voting can be considered in the future. I have covered most issues raised and on Committee Stage we can tease out some of the suggestions.

Question put and agreed to.

When is it proposed to take Committee Stage?

(Wexford): On Tuesday, 12 April 1994, subject to agreement between the Whips.

Committee Stage ordered for Tuesday, 12 April 1994.
Sitting suspended at 5.45 p.m. and resumed at 6 p.m.