Dáil Éireann debate -
Tuesday, 3 Feb 1998

Referendum Bill, 1998: Second Stage.

Minister for the Environment and Local Government (Mr. Dempsey)

I move: "That the Bill be now read a Second Time." This is the third substantive Bill relating to referenda since the enactment of the Constitution. The Referendum Act, 1942, set out the basic law relating to the conduct of referenda, while the Referendum Act, 1994, consolidated and amended the law up to 1994. This Bill is a result of greater political awareness by the electorate and the need to provide information in relation to matters dealing with constitutional amendments.

We have much experience of referenda. In all there have been 20 since 1937 when a plebiscite was held on the Constitution. Of those, 15 were approved by the people and five were rejected. That demonstrates the people are very discerning on proposals to amend their Constitution. That is a welcome indication of the public interest in the most fundamental legal document of the State.

As we move towards a new millennium and in a period of rapid change when existing practices and procedures are under constant review, it is timely to consider how the electorate can be more involved and informed on important political issues. There is hardly a more important issue than amending the Constitution. We must start at the so-called "grass roots" and work upwards at central and local levels. However, in the case of the proposed referendum on the Amsterdam Treaty, time dictates that we must act quickly to inform the public about the treaty which is a difficult document to explain. The provisions of the Bill will achieve this for the forthcoming referendum but also for all future referenda. It will become part of the permanent referendum law.

Despite all the technology and multimedia facilities available today, it does not seem that the public are well informed on the contents of the Amsterdam Treaty. A recent public affairs television programme interviewed a sample of individuals who were asked what they knew about the Amsterdam Treaty. Only one respondent seemed to know about it, even though the treaty is the product of much work at EU level and its negotiation has been covered in the media for a few years. The treaty results from the Intergovernmental Conference which opened in Rome in March 1996 under the Italian Presidency and was continued further during the Irish Presidency when the first draft for a new treaty was submitted to the Dublin European Council in December 1996. The treaty was agreed at the Amsterdam European Council in June 1997 and was signed in Amsterdam by member states last October. There have been frequent references to it in the media over recent months, but the public mind has not been focused on it. That is the information gap which we must try to fill.

In recent years most of the political parties represented in this House have been in favour of proposals put before the people in referenda. That is a good sign, but it has the downside that public debate has suffered. My predecessor, Deputy Howlin, and I give him credit for it, commenced the process of providing direct information on the advantages and disadvantages of a proposal in a referendum. To date we have had three ad hoc commissions on referendum information. Those commissions had responsibility for preparing statements with arguments for and against proposals for the divorce referendum in 1995, the bail referendum in 1996 and the Cabinet confidentiality referendum in 1997. The commissions engaged two senior counsel, who were nominated by the chairman of the Bar Council to set out both sets of arguments. A leaflet was produced on the divorce referendum and delivered by An Post to each household. Because of time constraints, advertisements in respect of the other two referenda were placed in the national and local newspapers. Criticism was expressed after the most recent referendum that the advertisements were not the best method of communicating simple factual information to the electorate. This, some claim, was the reason for the high incidence of spoiled votes in that referendum.

Notwithstanding the criticism, the ad hoc commissions were a step forward in attempting to bridge the gap in the provision of information. I pay tribute to the people involved, especially the members of the ad hoc commission and their staff who, at short notice, had to carry out a difficult task. However, it is time to advance the matter further.

When I was in Opposition I introduced a Private Members' Bill in June 1996 to provide for the establishment of an independent referendum commission having the function of preparing and presenting to the public information in an objective, impartial and informative manner in order to assist the process of enabling the electorate to make an informed decision at constitutional and ordinary referendums. I am glad to have this opportunity to give expression to the main function contained in my Private Members' Bill in the Bill before the House.

This matter was also considered by the All Party Committee on the Constitution following a recommendation in the Constitution Review Group report that:

There ought not be a constitutional barrier to the public funding of a referendum campaign provided that the manner of equitable allotment of such funding is entrusted to an independent body such as the proposed constituency commission. The total sum to be allotted should be subject to legislative regulation. Article 47.4 should be amended accordingly. Such a constitutional safeguard meets the principal objection to the old funding arrangements identified in the McKenna case by ensuring the Government does not spend public money in a self-interested and unregulated fashion in favour of one side only, thereby distorting the political process.

The All-Party Committee on the Constitution in its first progress report last April concluded that:

The Committee agrees with the Constitution Review Group that an independent body should be established to regulate the funding and conduct of referenda. It feels, however, that it would be tidier to provide in the Constitution for a commission to carry out not just those functions but also those undertaken by the Constituency Boundary Commission, the Public Service Ethics Committee under the Ethics in Public Office Act, 1995, and any commission which might be proposed to regulate election funding.

I am aware that the all-party committee is currently reconsidering the matter and I would welcome its views. However, in view of the short time available before the referendum on the Amsterdam Treaty, I must proceed with the Bill and I will consider any recommendations the committee may make for future legislation.

The Constitution Review Group recommended a constitutional amendment to enable a commission to be established which would allocate funds to political parties and interest groups to ensure a thorough sustained debate on a referendum proposal. That option has yet to be considered. I am not convinced and I am not aware of any evidence available that providing funds directly to political parties and interested groups would provide simple factual information to the electorate. We would probably see much more disjointed information about different facets of a proposal which might leave the electorate even more confused. Funds would have to be given to all groups with a bona fide interest in a referendum and unless the overall amount of funds available was very large, the impact each group could make would be minimal. It would be extremely difficult to set down criteria for approving funding and for public accountability of its use.

For instance, take the hypothetical example of a referendum where it is clear that 90 per cent of public representatives and the public are in favour of the proposal. If we assume that the Government decides to allocate £1 million to be distributed to political parties and interested groups, how is the allocation to be divided —pro rata to the size and representation of parties or groups or 50 per cent to both sides? Either of these approaches is open to challenge on the grounds of unfairness.

I am not satisfied that the taxpayer would be in favour of the Government issuing large sums of its money, together with the extra administrative costs of administering a scheme, to political parties and interested groups to try to persuade them to vote either "for" or "against". The potential for the wastage of public funds would be enormous, especially if the electorate is bombarded with conflicting, and perhaps inaccurate, propaganda paid for with its own money. The Government considers the Bill will provide a better option for supplying information to the electorate in a manner that is fair to all the interests concerned.

An amendment to the Constitution to provide for the commission envisaged by the all-party committee may be unnecessary but a decision on that point does not arise now. I am not saying that a single commission should not be set up which would encompass the present separate commissions — the Public Offices Commission, Constituency Commission and, when this Bill is enacted, the Referendum Commission. Much could be said in support of such a proposal and my colleague, the Minister for Finance, is drawing up proposals which could include such a single body, rather than several individual commissions.

The purpose of the Bill is to establish an independent statutory Referendum Commission to prepare and disseminate information on the subject matter of a referendum and to foster and promote public debate in a manner that is fair to all interests concerned at a referendum. It will also consider and rule on applications from bodies for a declaration that they be approved bodies, whose sole function will be to appoint agents at a referendum.

Section 1 provides for interpretation of some definitions. It is not exhaustive as the Bill will be read with the Referendum Act, 1994. Section 2 provides for the establishment, by order of the Minister, of an independent Referendum Commission not earlier than the date on which the Bill to amend the Constitution is initiated in Dáil Éireann or, in the case of an ordinary referendum, not later than the date of the order appointing polling day at such a referendum. Where the commission is established before the passing of a Bill to amend the Constitution by both Houses of the Oireachtas, it will be prohibited from publishing any statements or incurring any expenditure without the consent of the Minister for Finance before the passing of the Bill.

The section provides that the commission will be independent in the performance of its functions and, subject to the provisions of the Bill, will regulate its own procedure. This is an important point especially when read with the specific directive in the Bill that the commission carry out its functions in a manner that is fair to all interests concerned. This will allay any fears on the part of public representatives, interest groups and individuals that the funding to be provided by the Government may not be spent in a fair manner to both sides of the debate at a referendum.

The section also provides that a member of the commission shall not advocate or promote a particular result at the referendum in respect of which the commission has been established. While it may not be necessary to provide for this matter, given the membership of the commission, I consider it important to demonstrate explicitly that the commission will be neutral in its attitude to the proposal in the referendum.

Because of the time constraints and the complexities of the Amsterdam Treaty, the Government has approved the setting up of the commission on a non-statutory basis on this occasion pending enactment of the Bill. This will assist the commission in setting about its task of preparing a work programme to carry out its functions. I have written to the five members of the proposed commission and I expect the secretariat to contact them this week to arrange their first meeting. I am pleased to inform the House that the former Chief Justice, Mr. Thomas Finlay, has agreed to be chairperson of the first commission.

The section also sets out the membership of the commission. The members will be a former judge of the Supreme Court or a serving or former judge of the High Court nominated by the Chief Justice, who will be chairperson, the Comptroller and Auditor General, the Ombudsman, the Clerk of the Dáil and the Clerk of the Seanad. The section makes provision for substitution where there is a vacancy in the office of one of the ordinary members of the commission and where the chairman or another member of the commission is temporarily unable to act. A member of the commission, who ceases to hold the relevant office, such as on reaching retiring age, will normally continue as a member until the commission reports.

The Minister for Finance is required to make available to the commission such services, including staff, as the commission may require. Consultations are taking place between the Office of the Ombudsman and the Department of Finance about the provision of extra staff. As the commission will be dealing with submissions from a variety of sources relating to many different aspects of the proposal in the referendum, the section provides that documents of the commission and of its members and reports of and submissions to the commission will be privileged. Section 3 sets out the principal functions of the commission. It provides that it will prepare statements containing a general explanation of the subject matter of the proposal, the subject of the referendum. It will also prepare a statement or statements of the arguments for and against the proposal having regard to any statements received under section 6.

The commission will be required to publish and disseminate these statements to the electorate. I am leaving it open to it to decide the best way of communicating with the electorate. It can use television, radio and other electronic media in addition to printed matter in brochures, leaflets, pamphlets and posters. It will also be a function of the commission to foster, promote and facilitate public debate on the proposal, the subject of a referendum. In carrying out these functions the commission will be required to be fair to all interests concerned. This is the essential part of its role and is designed to meet the point in the McKenna judgments on the use of public money in a fair and even handed manner.

Section 4 provides that the commission may engage such consultants and advisers as it considers necessary for the performance of its functions. It will be a matter for it to engage professionals such as public relations experts, publicists, advertising agencies and other professional services to ensure it gets its messages across to the electorate in the most useful way. This is important to ensure that the electorate is fully informed and funds are not wasted on ineffective publicity.

Section 5 provides that the prohibition in the Broadcasting Authority Act, 1960, and the Radio and Television Act, 1988, on the acceptance of political advertisements will not apply to advertisements to be broadcast at the request of the commission in relation to its principal functions at a referendum. The importance of the commission's work, which is governed by the concept of fairness to all interests concerned, warrants the departure from the prohibition on political advertisements for the purposes of conveying balanced information on a referendum proposal to the electorate.

Under the section the commission may, after consultation with the RTÉ authority or the Independent Radio and Television Commission and having considered any proposals on their broadcasting plans in connection with a referendum, request the Minister for Arts, Heritage, Gaeltacht and the Islands, to direct the RTÉ authority or the Independent Radio and Television Commission to arrange to make broadcasting time available to facilitate the commission in the performance of its functions.

I would see this power, to request the Minister to direct the two authorities to provide broadcasting time to the commission, being used only in very exceptional circumstances. The commission will be obliged to consult both RTÉ and the Independent Radio and Television Commission and to consider the programmes and coverage relating to a referendum proposed by stations under the aegis of both bodies before exercising this power. I would expect to see a commonsense approach by the three bodies, especially as the three of them are required to be fair to all interests concerned in carrying out their respective functions. Nevertheless, the commission must be given the necessary powers to carry out its functions. Television and radio are probably the most used and effective means of communicating today. I consider that the commission must have the option of using these methods of communicating information to the electorate, so that the latter will be able to make an informed decision on polling day.

Section 6 provides that the public can make submissions to the commission relating to a proposal, the subject of a referendum. The commission will have regard to the submissions received when preparing statements under section 3. That is not to say every submission will have to be reproduced by the commission. It will be a matter for the commission to decide the contents of its statements provided they are fair to all interests concerned.

Section 7 provides that a body may apply to the Referendum Commission for a declaration that it is an approved body for the purposes of the referendum. The only function of an approved body under the Bill will be to appoint agents at various processes at the referendum. The right of such bodies to appoint agents will be in addition to the right currently conferred on Members of both Houses of the Oireachtas to appoint agents. This provision is included to take account of a High Court judgment in 1997 which held that the Minister has jurisdiction to rule on requests made to him by persons or groups to appoint such agents at a referendum.

A body will have to apply for a declaration at each referendum at which it wishes to appoint agents. The requirements are kept to a minimum. The body must have an interest in the referendum, it or a branch of the body must be established in the State, have at least 500 members, have a constitution, memorandum of association or other such document approved by the members, and a name which is not identical or does not closely resemble the name of a political party registered in the Register of Political Parties. The commission must be satisfied the applicant body has a bona fide interest in the subject matter of the referendum.

While some may criticise these minimal requirements, I stress that the role of an agent at an election or referendum is a serious and important one. It is a task which must be done correctly and is not a matter to be taken lightly.

I will give some background to the appointment of agents and what the agents can do at a referendum. Section 26(1) of the Referendum Act, 1994, provides that a Member of the Dáil for the constituency and any Member of the Seanad may appoint agents at a referendum to be present at the issue of ballot papers to postal voters, the opening of postal ballot boxes and the counting of votes. Any Member of the Dáil for the constituency and any Member of the Seanad may appoint one person to be present in each polling station at a referendum for the purposes of assisting in the detection of personation.

In November 1995, prior to the referendum on divorce, an anti-divorce activist wrote to the then Minister requesting him to redress what she referred to as a deficiency in the Referendum Act, 1994. The person claimed that groups opposing the then proposed constitutional amendment were excluded from appointing personation agents and agents to attend the count without obtaining an appointment from Members of the Oireachtas. The person indicated that most if not all the parties in the Oireachtas supported the proposed amendment and requested the then Minister to make provision by way of emergency regulations to allow anti-amendment groups to appoint such agents. As that request was not acceded to, legal action was initiated.

The High Court, in March 1997, granted the plaintiff a declaratory relief and made a declaration that the Minister has jurisdiction to consider whether there exists circumstances of special difficulty arising from the operation of the power of appointment contained in the section. Should he decide circumstances of special difficulty arise, he may modify section 26 by providing by ministerial Order that the power of appointment should be exercised by persons or groups in addition to the persons mentioned in that section. The powers available to the Minister under section 164 of the Electoral Act, 1992, were intended to deal with unforeseen difficulties or emergencies. It has been used to deal with problems with the delivery and or return of postal voting documents during a postal strike, robbery of postal deliveries and the continuation of a poll on a second day on islands where confusion led island electors to believe that polling stations were not open on the original day appointed. Examples of other situations in which it was envisaged that the provision could possibly be used were a prolonged widespread evening power cut on polling day during the winter or extreme weather conditions, for example, a severe blizzard.

The practical arrangements to be put in place at a referendum where there is no political party in the Dáil opposed to a constitutional amendment must take account of any group opposed to the amendment. The Minister could, by difficulty order, determine which groups could appoint agents or he could designate that this function should be performed by the referendum returning officer or each local returning officer. It would not be the most satisfactory arrangement that the Minister adjudicate on who should have authority to appoint agents at a referendum as refusal by the Minister of a particular person or group to appoint agents would be likely to lead to allegations of bias or conflict of interests on the part of the Minister and could result in a referendum petition. Assigning the duty to the referendum returning officer or local returning officer to determine which bodies should be entitled to appoint agents is not considered appropriate as it could embroil impartial election officials in charges of partiality.

The section 164 order procedure is not an appropriate mechanism for authorising bodies to appoint agents. Instead, section 7 provides that interest groups which are declared to be approved bodies by the referendum commission will be entitled to appoint agents. This will avoid any allegations of unfairness or partiality.

Under section 8 a commission is required, as soon as possible after its establishment, to publish a notice in at least two national newspapers inviting submissions in relation to the proposal the subject of the referendum. The public notice must also refer to the procedure for declaration of approved bodies for the referendum. It must also specify the latest date for receipt of submissions and for applications to the commission for declarations as approved bodies in respect of the referendum. This public notice will alert individuals, groups or political parties of the right to make a submission which must be considered by the commission in preparing its statements.

The commission may require further information or documents from a body which applies for declaration as an approved body under section 9. It may require the authorised officer of a body who furnishes such further information to make a statutory declaration in support of the information so supplied. The section provides that it will be an offence to knowingly provide false information following a request for further information from the commission. Provision is also included in this section to enable a commission to revoke a declaration made by it in relation to a body where it is satisfied that false information has been furnished to it.

The commission will be required by section 10 to notify the referendum returning officer of details of each body declared to be an approved body under the Bill or where any declaration is revoked by it. The referendum returning officer is required to notify such details to each local returning officer. Each approved body at a referendum will be empowered under section 11 to appoint agents to attend at the issue and opening of postal voters' ballot papers, at polling stations and at the counting of votes. Members of both Houses of the Oireachtas who currently have the right to appoint such agents will continue to have this right. The conditions relating to the appointment of agents in relation to Oireachtas Members as set out in the Referendum Act, 1994, will apply to agents appointed under this section.

Section 12 provides for the amendment of the Referendum Act, 1994, to provide that the result of a referendum may not be questioned on the grounds of non-compliance by the referendum commission with any provision of the Bill or any mistake made by the commission if it appears to the court that the general principles laid down in the Bill were complied with and the non-compliance or mistake did not materially affect the result of the referendum.

Under section 13 the expenses of the referendum commission will be paid out of moneys provided by the Oireachtas from the Vote of the Minister who initiates the relevant Bill containing the proposal, the subject of the referendum. The Government has approved funding of £2.5 million for the commission's promotional work in the Amsterdam Treaty referendum.

The commission will be required under section 14 to furnish a report to the Minister as soon as practicable but not later than six months after the completion of its functions at a referendum. The Minister is required to cause a copy of the report of the commission to be laid before each House of the Oireachtas. Where the Minister so directs, the report of the commission must include information on any particular aspect of the commission's functions as may be specified by the Minister. A commission will automatically be dissolved one month after presentation of its report.

Section 15 provides for the amendment of the Referendum Act, 1994, consequential on the extension of the right to appoint agents at a referendum to approved bodies. Section 16 provides that where an offence under the Bill, which has been committed by a corporate body, is proved to have been committed with the knowledge of a director or other employee of the body, that person as well as the body corporate shall be guilty of an offence and shall be liable to be proceeded against. Proceedings for an offence under the Bill shall not be instituted without the consent of the Director of Public Prosecutions. Section 17 is a standard provision relating to the Short Title and construction of the Bill with existing Referendum Acts.

This is short but important legislation. It will put in place a mechanism to provide information to the electorate in a way that is fair to all interests concerned. The forthcoming referendum on the Amsterdam Treaty is an important national event. The commission will have a difficult task on this occasion in carrying out its functions due to the complexities of the treaty. The commission can only provide information; it cannot make the electorate read or consider it. The commission cannot force the electorate to vote. I hope the information provided will increase public awareness which will result in the electorate being in a position to make an informed decision and express that decision by coming out on polling day to cast its vote. However, politicians of all parties also share a responsibility to generate public interest so that we will have a large turnout on polling day.

I commend the Bill to the House.

Mr. Dukes

Fine Gael will oppose this Bill on Second Stage and will seek to amend it on Committee Stage. We have serious reservations about the Government's approach to the handling of referenda, to the establishment of the commission provided for in this Bill and to the handling of the Amsterdam Treaty.

I agree with some of the Minister's points, including his statement that "it is timely to consider how the electorate can be more involved and informed on important political issues". However, the Government is not doing much to live up to that in the present context. It is regrettable and worrying that the Government handled its announcements about this referendum last Thursday and Friday week and treated some of the issues in the White Paper published last week in a way which has allowed fears to gain ground outside this House, and it now appears among some people in this House, for which there is no foundation in fact and no justification in the text of the Amsterdam Treaty. The Government has not done anything significant to counter that.

The Government appears to have allowed the impression to gain ground that the flexibility provisions of the Amsterdam Treaty apply to provisions relating to a common foreign and security policy. The Government has advice to the effect that they do not. Members of this House, who are not in Government now but who were involved in the negotiations, know that link is not there.

Mr. Howlin

It is not quite as clear as that.

Mr. Dukes

Yet that is being stated and fears are being expressed for which there is no foundation and the Government is not dealing adequately with it. In the White Paper the Government states categorically and correctly that it would not be possible to provide for the integration of the Western European Union into the European Union without an amendment to the treaties and consequently a constitutional referendum here. The Government does not state clearly and categorically that the same would apply if any move was made to adopt a common defence policy. Paragraph 549 of the White Paper does not deal properly with that. That is a defect in the way the Government has been handling this, that will cloud the debate. I hold the Government directly responsible for that.

My party believes in the right of a Government to advocate a point of view in a referendum. Whatever our feelings about the current Government, or indeed any Government at any given time the Government in office is there as a result of electoral choices by the people and as a result of political choices by the parties to which the elected members belong. It is a proper part of the function of a duly elected Government in a democratic system to act and negotiate on behalf of the people and, where an issue has to be put to the people in a referendum, to give the people its views on the issues before them, to state its convictions in the matter, to state why it believes the matter being put to the people is one they should approve, to state what benefits it thinks it may bring the people and to state also what reservations, if any, it has about any part of the issue that arises. It is not outside the ambit of democracy for the Government to use the available machinery of Government, which is there for all of its activities, to express those convictions, to advocate its views, even in the case where a question has to be put before the people, because in our system Governments can be and are voted out of office. We have elections, in our case, more frequently than is provided for in either our Constitution or our law. To pretend the advocacy by any Government of this State of a point of view in a referendum campaign is oppressive or unfair is utterly absurd and, as a citizen, I regret that our Supreme Court has accepted utterly specious arguments in this matter and given rise to a part of the debate which underlies this Bill.

If there is any role in a referendum for a commission it should surely be to judge whether the Government's advocacy is fair. A commission set up to do that job would consist of persons eminent in the fields of law and international affairs, European affairs, political science and other relevant disciplines and even, perhaps, politics. We will hear how important it is that commissions should be outside of politics, but whatever commission is set up as a result of this will deal with an intensely political issue, and we are being told it should be run, staffed and composed of people who are not politicians. I do not know whether there is any other area of life where we would adopt that approach. Would we set up a commission to deal with a medical problem composed exclusively of non medical people? Would we set up a commission to deal with a legal problem composed exclusively of non legal people? I do not think so. We are allowing dictates of political correctness — which is only a passing fad anyway — to cloud our judgment in all of these things. I will come back to that in a moment.

Mr. Dempsey

The Constitution requires it.

Mr. Dukes

The Constitution does not require us to be politically correct. It requires us to have downright commonsense.

Mr. Dempsey

It requires us to abide by decisions of the Supreme Court.

Mr. Dukes

I will come to the Constitution in a minute. This is more important than the Minister's feelings on the matter. Parties to the debate, if they felt the Government was being unfair in any aspect of its advocacy, should be entitled to appeal to the commission for a ruling as to whether the Government was being fair, and if that commission found the Government's advocacy was unfair, it could order the Government to desist from its line of argument. If, on the other hand, the commission found the Government's advocacy was fair in the light of what it was saying, in the light of the circumstances, in the light of the argument being made, the objectors would simply have to put up with it. That would be a fairer way of going about it than the kind of Byzantine complexity into which we are now descending. The Government should approach this issue by having legislation along these lines, and that such legislation should be tested in the courts to ensure its validity. This would be a far better approach than to establish a commission to operate within the framework set out in this Bill, a framework which has proved itself to be already unsatisfactory. This was the procedure, after all, which gave us the most unsatisfactory Government contribution in the debate on the referendum on Cabinet confidentiality.

I have no criticism of the expertise or the objectivity of the eminent persons who drew up the pro and anti statements which the Government published in the course of that referendum campaign, but I have not heard anybody say a good word about the way in which the material was presented in newspaper advertisements. What came out was illegible, incomprehensible and indigestible in two languages. This is not the way to go about providing information to the public, yet that procedure is what the Government is now proposing for the referendum on the Amsterdam Treaty. The Minister referred to the fact that this was used in two other referenda — the bail referendum and the divorce referendum that went before it. The Minister said there was a bit more time on the occasion of the divorce referendum and that the commission set up at that time distributed widely throughout the country a leaflet that dealt with the issues.

With great respect to the people who prepared that — I mean that; I am not just saying it — I was actively involved in that referendum campaign as was Deputy Howlin and my colleague, Deputy Jim O'Keeffe. I am not misrepresenting the case when I say that my experience of that referendum campaign was that the leaflet presented in that way counted for rather little in the whole debate. I do not say that to criticise the people who prepared it, or their motivation or their objectivity. However they were not people who were involved in the debate. They were not people who understood the atmosphere of the debate, and they carried out an exercise which was divorced from the way people think about debates, from the way people feel in debates, and from the way people see the issues. It is not possible to sit in a place apart from the rambunctiousness of an argument like that and prepare a document that will be of much illuminative value — such documents are not intended to be persuasive — in the context of such a debate.

We will again put a number of eminent people into a very difficult position. Certain persons are proposed in this Bill to be members of this commission. I hope none of them will be offended by what I am about to say, because it is not my intention to offend them. I can assure each and every one of them there is nothing personal in my remarks. It is not my purpose to reflect on their competence in their present positions, on their dedication to their duties, on their integrity or on their qualities of imagination or understanding. I refer to them only because they have the misfortune to be proposed as members of the commission. They are the officeholders designated by this Bill to form this commission.

It is not obvious to me that any member or former member of the High Court, former member of the Supreme Court, the Comptroller and Auditor General, the Ombudsman, the Clerk of Dáil Eireann, or the Clerk of Seanad Eireann have, by virtue of their office, any particular insights or experience that fit them to be members of a commission charged with the job that this commission is proposed to be given by this Bill. There is no reason to believe these people are any more fitted for this job than other officers or citizens of the State or that there is anything which distinguishes them as being particularly suitable to carry out the functions set out for the commission. They are proposed in the Bill simply because the Government wants to find people who are apart from the political process and who happen to hold offices which all of us respect. This does not equip them to carry out the job being given to the commission. It is not enough to simply say these are all persons of great probity and integrity. This is accepted, but it is not all that is required. They have to do a job with probity and integrity, as I am sure they will endeavour to do, but are they fitted for this job? There is nothing obvious to say they are.

It is intended that the commission proposed will commission the preparation of statements on the issues arising in the referendum. From whom will they commission such statements? I counsel against relying only on eminent legal persons because they produce legal documents unreadable by the general public. The Amsterdam Treaty is a perfectly legal document but it is totally indigestible to the general public. It has to be that way. We cannot produce the simplest Bill in this House without using a rather complex text which is beyond the normal experience of the average citizen. I am not sure that sending out presentations prepared by legal people will necessarily be an addition to public comprehension of the issues which will face us in the referendum.

Will academics, experts and lobbyists be asked to prepare statements? Anyone who is asked to prepare a case for or against a referendum can be criticised. Lawyers can be criticised for producing unreadable statements, while everyone else can be criticised for some kind of partiality. Is the commission being set up because the Government believes that as a result of the McKenna judgment we must have a parallel debate commissioned by people who are beyond reproach? This is supposed to be of more value and more illuminating than a debate which takes place among people who are not beyond reproach because they are up to their oxters in political mud and up to their eye balls in political argument. Is there something wrong with a debate which involves people in the political process? Is there something about it that needs the sanitisation of having some other group who are beyond that kind of reproach involved in the preparation of information for the public? I do not blame the Minister for this as the real problem goes back to the Supreme Court which seems to believe there is something essentially wrong with the political process because it is political.

It is intended that the commission shall prepare and publish brochures, leaflets, pamphlets and posters and shall distribute them to each presidential elector or household. It is not obvious that this commission will have any particular expertise in the preparation, publication or distribution of any of these documents. We had a bad experience on the last occasion and I wonder how people who are not engaged in the argument can produce or assess material relevant to the debate in a way which is responsive to what is going on in the mind of a public which does not really want to read much tedious and detailed documentation.

The commission will also be charged with fostering, promoting and, where appropriate, facilitating debate or discussion in a manner which is fair to all interests concerned. I do not see anything in the qualifications of the proposed members of the commission which fits them to foster and promote debate or discussion in this way. The Minister dealt with this when he commented on the functions set out in section 3. He said the commission will have access to the broadcast medium. It is important that there should be a lively debate in the broadcast media given that it seems to have a greater impact on a larger part of the population than the printed medium. I do not see anything in the qualifications of these people which gives me confidence they can handle this matter which is so completely outside the ken of their normal activities that it is like a foreign country to them.

The commission will have a budget of £2.5 million. This is a very substantial budget and much information can be given out and much facilitating can be done with it. However, if it is badly done then a large part of the expenditure will be wasted. If the Government is bent on setting up a commission, on having information distributed and on ensuring that debate is facilitated then surely the commission should be given powers to turn to organisations which have a track record in these matters and then decide which of those organisations should be entrusted with such tasks, the criteria which should be applied to them and their methods of work and the accountability required of them.

Mr. Dempsey

There is nothing to stop it from doing that.

Mr. Dukes

The Minister said we could consider this but that it is too complicated to do it now.

Mr. Dempsey

No.

Mr. Dukes

I will quote what the Minister said later. I remind the Minister that the Danish Parliament has a model for such a system and it operates successfully for referenda in Denmark. The Government appears to have paid no attention whatsoever to that model.

Mr. Dempsey

We did. I advocated allocating funding to both sides of the argument.

Mr. Dukes

I am not making a case for a particular body. One option which was available was to give funding to organisations on both sides of the argument but the Minister ruled it out and said it would be too complicated to work it all out now.

Mr. Dempsey

The Deputy should take a good look at what I said.

Mr. Dukes

The Minister referred to the recommendation in the report of the All-Party Committee on the Constitution that there ought not to be a constitutional barrier to the public funding of a referendum campaign provided that the manner of equitable allotment of such funding is entrusted to an independent body. He went on to say, in essence, that he is too bothered and pressed and in too much of a hurry at this stage to give that any consideration, although, by implication, it might be considered at a later stage. Having quoted the All-Party Committee on the Constitution, he said: "I am aware that the all-party committee is currently reconsidering the matter and I welcome its views but I must proceed with the present Bill." This is outrageous. He said his attention has been drawn to another way of doing this but he is in too much of a hurry and does not have time to think about it and he will bash ahead with what he proposes. This is entirely unsatisfactory and it is not the way a Government should go about dealing with an important issue such as this one. The Government should now consider allowing the commission to farm out work on the advocacy in the way I suggested, satisfying itself as to the bona fides, standing and capacity of organisations which could carry out the work.

On the dissemination of information, my understanding is that the Government will publish separately the overview section, chapter 3, of the White Paper as a stand-alone public information document, and that will be useful. The Government intends to print 200,000 copies of that document. In a rather old-fashioned and charming way, members of the public were invited yesterday by notice in the public press to apply for a copy of the document, which will be as Gaeilge agus as Béarla and will be placed in public libraries and so on. There will be 200,000 copies of that document for more than one million households, which is not an adequate circulation list for that material.

There are many ways of ensuring wider distribution, one of which would be to give a large stock to every Member of the House to send to our constituents together with the multitudinous letters we send every day. Every Department has a comprehensive network of contacts with bodies such as community development groups, voluntary agencies, non-governmental organisations and so on which are involved with people who would like to have information on this treaty. Will the Government consider making stocks of the document available to such bodies, many of whom have members who at some stage in their activities will ask each other what they are going to do about the Amsterdam treaty. There is no difficulty in finding ways to disseminate the document much more widely than is intended by the Government. For example, political parties could mail it to their members. It would not be difficult to ensure the document goes to every household.

The ban on political advertising currently in force is to be lifted in regard to advertisement taken out by the commission, and that is welcome. If the Government took a different view of the work of the commission and agreed it should commission organisations to carry out work on its behalf in the campaign, equally the ban on political advertising should be lifted for those organisations acting in a way that is approved by the commission.

I welcome the provision in section 7 to approve bodies for the purpose of the referendum for the various functions the Minister has indicated. That section is entirely appropriate.

The Minister raised the question of fairness during the course of his comments. As an observer and a participant in the political scene for a long time, I have found there are a few dodges that are frequently used. One of the best ways of getting publicity is to complain loudly that the media are being unfair. If one complains loudly enough one will get much exposure in the media, and appearing on television or radio one does not have to say the media are being unfair but simply put forward one's message. Many people who have taken issue with my views on treaties up to now have used that dodge to very good effect.

Another good dodge is to say that there are very few people who are active on one side of the argument, that one is oppressed by the fact that everybody else is against. That ensures much publicity. It scares the media so much that the few people who take that view and are clever enough to make that contention get about half the media space in a referendum campaign. They spend part of their time complaining they do not get as much attention as everybody else. We have talked ourselves into a position where time after time the media have been persuaded it is fair that people who seem to represent the views of considerably less than half the population get at least half the media exposure. Regardless of the way this Bill turns out, the media should wake up to that fact this time around and not fall for the old dodge of people who say they are not getting fair coverage in the media, that they are oppressed by the number of people against them, and therefore they get half the coverage. We should not fall for that in the way we have previously.

This Bill is not an answer to the various issues that have arisen in recent years about the fairness of the referendum procedure. It is a half-baked Bill based on an incomplete, pseudo-sophisticated reflection of the issues that arise. I regret very much the Minister, who has indicated there are other ways of handling this matter, cannot be bothered with them or has not enough time. The present course is the wrong way to proceed. It will do serious disservice to the democratic rights of the public to information and to an informed debate in a referendum on an important issue.

The Minister concluded his remarks by urging politicians to accept their share of responsibility to generate public interest. I agree with that sentiment and hope all of us in this House seriously takes on that task. I appeal not as a politician but as a citizen to our politicians and the media not to forget that every citizen has a duty to take steps to inform himself or herself on this matter. If we operate on the basis that people will vote in an informed way only if they are spoon-fed with information, we are insulting the people. I bet my bottom dollar that about two weeks before referendum day — this illustrates the problem — people will say that not enough information has been made available on the matter and there has been no debate on it. I predict that in the print and broadcast media most of the people who make that remark will be those who have extensively covered the reflection group, the intergovernmental conference and all the public debates on the issue. I warn the public not to be put off by that nonsense.

Mr. Howlin

Rather than be dragged into debate on the merits or otherwise of the specific proposal which imminently will be put to the people to validate the Amsterdam treaty, I will focus on the Bill before us which deals with how we will conduct referenda in the future. I am a little disconcerted in that I am much more in agreement with the comments of the Minister than the comments of the spokesman for the Fine Gael Party. On the proposition we are faced with — I have clear views on electoral law and the way we should deal with it — a decision by four of the five judges of the Supreme Court, with Mr. Justice Egan dissenting, clearly interpreted the Constitution. There is an obligation on all of us to address that Supreme Court judgment. It seems there are three options. We may decide the Supreme Court should be overturned and advocate a constitutional referendum to do that. The second option would be to accept the Supreme Court judgment and produce a Bill on the lines of the one the Minister has produced. The third option would be to decide to do nothing, not to advocate one side or another or any case in any future referendum and if we do not spend public money we are clearly within the confines of the Supreme Court judgment. However, we cannot simply say we do not like the Supreme Court judgment without being determined to overturn it.

It is an important landmark judgment. There were many aspects of the judgment I did not like and some with which I did not agree, but we are obliged to address the issue of fairness in conducting referenda.

As Deputy Dukes stated, many countries have looked at this issue. The Danish experience is one I would not favour. I do not agree with the notion of handing funding to political groups or political advocates of an issue, and this could be very difficult in our context. I could envisage, for example, a referendum on Articles 2 and 3 of the Constitution and there are some organisations who might be actively involved in that campaign for whom I would not be anxious to provide funding.

We must be realistic and decide there will be an acceptance of the Supreme Court decision which means we must have some balanced way of advancing the case for and against a measure to be put to the people by way of referendum. We have looked at this over a period of years. An ad hoc arrangement was in place for three referenda. I was responsible for devising that arrangement in response to the initial Supreme Court judgment and I accept readily that it was not an ideal mechanism. Ironically, I also believe the first referendum we dealt with in an ad hoc way, the divorce referendum, was dealt with best. The production of a pamphlet, delivered to every household, was much more informative, constructive and helpful to people deciding on their views than placing an advertisement in the print media, which was the mechanism used in the two subsequent referenda. Incidentally, it was also, by a significant measure, the cheapest way of doing it. I understand the insertion of an advertisement in the print media in each case cost in the region of £400,000 whereas the production and dissemination of a pamphlet in the divorce referendum cost in the region of £143,000, so one got a much better impact for the expenditure of moneys.

It is important that we look at this measure in the context of referenda generally rather than how we will deal with the issue of the Amsterdam Treaty referendum. I draw to the attention of the Minister an important issue. We gave the task of looking at the conduct of referenda to a committee reviewing the Constitution. We asked it to look at international best practice, the Constitution and the judgment in the McKenna case, and to come up with recommendations. To say that it is a discourtesy to produce legislation in the absence of the committee's final conclusions is to put it extremely mildly. We are given tasks and we take them on with enthusiasm — the All-Party Committee on the Constitution undertook its work in a constructive non-partisan way — and we are all fed up to find that the work of the committees is basically irrelevant to the thinking of the Executive working in parallel with scant regard to the conclusions of the committees. It is not good enough for the Minister to come into the House today and say that the All-Party Committee on the Constitution is currently reconsidering the matter and he would welcome its views. What good are the views of the committee if we have enacted legislation? Is there an urgency about this legislation that it could not wait for the views of the committee? The Minister says "yes", and refers to the Amsterdam Treaty debate. However, the Minister today and originally in his press release announcing this Bill on 27 January said that, because of the time constraints and the complexities of the Amsterdam Treaty, the Government has approved the establishment of a commission on a non-statutory basis pending enactment of the Bill. Therefore, the Bill is irrelevant to the Amsterdam Treaty because the commission will already be established on an ad hoc, non-statutory basis. I have no difficulty with that, but at the same time the Minister should give us time to reflect on how best to deal with the rather complex issues involved in allowing a fair debate on the amendments being proposed to our basic law.

The Constitution is the fundamental law of the land. It is the preserve of the people who make the decision. They are entitled to be given the broadest possible base of knowledge on which they can make a decision. Certainly, every political party has a responsibility to present its case to its supporters, and there is no prohibition, good, bad or indifferent, on that happening. There is, however, a prohibition on the expenditure of public moneys by the Government in advocating one side. That is a good thing. It is important. It is a nuisance and an irritant for Government, but it is an important principle of democracy that there be advocacy of issues on a balanced basis.

I listened carefully to the case put forward by Deputy Dukes and there is merit in his argument, that a consensus among 80 per cent or 90 per cent of the Members of the House should be reflected in the campaign. It is a moot point. There is always a requirement for a balanced debate so that all the issues can be teased out and that balanced debate should not include the direct funding of any advocate group. The notion of an independent commission handling the dissemination of that information is a safer, better and, ultimately, more democratic proposal.

I have clear strong views on the proposal before us. They were touched on in passing by the Minister when he talked about the current work being undertaken by the Minister for Finance in considering the establishment of a single commission. Let us look at the commissions currently in place and the functions the Oireachtas assigned to them. The Registration of Political Parties Appeals Board was established by section 25 of the 1992 Act and it consists of a judge of the High Court nominated by the President of the High Court, the Ceann Comhairle and the Cathaoirleach. The Constituency Commission was established by Part II of the Electoral Act, 1997, and it consists of a judge of the Supreme Court or of the High Court nominated by the Chief Justice, the Ombudsman, the Secretary General of the Department of the Environment and Local Government, the Clerk of the Dáil and the Clerk of the Seanad.

One will find, when we go through all these various commissions, that the same characters and officer holders appear in more than one slot. The Public Offices Commission, established by part V of the Ethics in Public Office Act, 1995 — it is also referred to in the Electoral Act, 1997 — consists of the Comptroller and Auditor General, the Ombudsman, the Ceann Comhairle and the Clerks of the Dáil and Seanad. As we discovered recently, these bodies have a range of onerous responsibilities that are set out in the legislation to which I referred.

Section 2 envisages the establishment of a referendum commission, the membership of which will comprise a former judge of the Supreme Court or a former or current judge of the High Court nominated by the Chief Justice, the Ombudsman, the Comptroller and Auditor General, the Clerk of the Dáil and the Clerk of the Seanad. It seems the commission will be made up of the same group of people wearing different hats and carrying out different functions and it will involve itself in areas of electoral law and policy which overlap or dovetail into each other. In addition, a number of functions reserved for the Minister for the Environment and Local Government are improperly conferred on a political personage.

If Deputy Dukes was present, I am sure he would fundamentally disagree with my last statement. I react in the same way to people who state that politicians are the only people who cannot be trusted completely when it comes to politics. However, it is improper that there are specific roles assigned to the Minister for the Environment and Local Government in respect of matters of electoral law. For example, the Minister or his nominee act as returning officer for referenda. In presidential elections, he can make orders in respect of special difficulties which may arise. In his contribution the Minister offered the example of a blizzard on polling day. I recall such an order being made when problems arose in respect of an offshore island.

Are such decisions appropriate to a partisan person? I raise this in the context of the presidential election when the Minister for the Environment and Local Government, who had functions to perform in respect of the election, served as director of elections for the candidate who subsequently became President. I do not believe there was any impropriety on the part of the current officeholder at the Department of Environment and Local Government, but it was wrong that such a situation should arise.

The time is ripe to establish, on a permanent basis, a single commission which would have all the functions currently farmed out to various commissions, boards and the Minister. This simple proposition would be more rational and much better. Will the Minister reflect on that proposal and not pursue the Bill to a conclusion? There is no urgency about the Bill because the Minister can establish, on a non-statutory basis, the commission to deal with the Amsterdam Treaty. As far as I am aware, there is no referendum imminent other than that dealing with the Treaty. In a matter of weeks we could discuss, design and publish a consolidation Bill which would encompass the powers the Minister envisages will be given to the new referendum commission and the various other powers given, under the Electoral Acts, to the committees, commissions and boards to which I referred. He could also rid himself of the residual electoral powers he retains. I strongly urge the Minister to do this.

I considered tabling an amendment in order that the House would divide on Second Stage. On balance, I thought it would be more constructive and more likely to be successful if I made the case logically to the Minister. I am aware the Minister was obliged to leave the House but I hope the Minister of State will put my views to him. The Minister should reflect that there is no urgency on this matter and he should consider a more fundamental consolidation of electoral law than adding a further commission to the plethora which already exist.

I will tease out a number of other matters at the Select Committee on Environment and Local Government before the Bill is brought to a conclusion. How will the mechanism governing the expenditure of money work? For example, £2.5 million is to be allocated to the commission to deal with the Amsterdam Treaty. Will the commission decide how much of this money is to be spent or must it spend the entire amount? Will the commission decide how much RTÉ should be paid in respect of advertisements or are these expected to be offered free of charge? Is the divide between the expenditure on television, radio and the print media to be set in any way or will it be at the commission's discretion? Will a large part of the £2.5 million be spent on the services of the consultants to whom the Minister referred earlier? Will guidelines be put down? Will the commission be able to decide that its work should only cost £500,000 and return the remaining £2 million to the Exchequer? How will the mechanism work and on what basis was the figure of £2.5 million decided?

There are clear accounting measures which cover every shilling spent. I know from experience that if a person seeks £100,000 for a project the accountancy measures put in place are extremely arduous, and rightly so. However, there seems to be no mechanism to control the expenditure of the £2.5 million to be given to the commission. This will be an invitation to some consultants to make a small profit from the pool of £2.5 million which must be expended so that the perception of fairness can be seen to exist.

In terms of our experience to date, in the three referenda where the ad hoc arrangements applied, the most effective communication of the issues took the form of individual pamphlets delivered to each household. This cost less than half the amount spent on newspaper advertisements, which, as Deputy Dukes stated, were largely a waste of effort. Those advertisements, which appeared in two languages, were crammed into one page and proved illegible because of the minuscule print used. They were almost designed to discourage people reading them. I do not suggest there was an ulterior motive behind this but the advertisements were illegible to most people.

This argument forms a value for money caveat to my contribution and I am interested to hear the Minister's views on it. I hope he will express those views in a dispassionate way at the Select Committee on Environment and Local Government over a period of time rather than rushing the Bill to a conclusion in a matter of days on foot of the artificial argument that it must be in place in advance of the Amsterdam Treaty debates. The Minister acknowledged this is not necessary because he intends to proceed on an ad hoc basis.

I welcome a number of sections of the Bill. The notion of establishing a clear legislative way of deciding who can appropriately appoint agents at referenda is an important development. I am familiar with the difficulties which arose in November 1995 when application was made by outside groups and bodies to have the right to nominate agents. I was surprised by the High Court decision in respect of the special difficulty order under section 164 of the 1992 Act. Most people did not envisage that a special difficulty would encompass the right to appoint agents. Since the High Court decided the Minister had such a power, it does not rest comfortably with him to be the referee in deciding what group has an interest and should appoint agents. In any referendum there could be a number of people on the same side of the argument for very different reasons. It is right and proper that there be a statutory mechanism for dealing with that and I understand the Minister's requirement that his role be modified so that he is taken out of such a bind.

I understand Deputy Dukes' views on European integration which are well stated, understood and knowledgeably articulated, but his views on how the Amsterdam Treaty should be conducted should not be mixed with general issues which will be put to the people over the next ten or 15 years by way of referendum. There was a blurring of those distinctions in his contribution. I am surprised he said Fine Gael believe the Government should be allowed to use its resources and public money to advance its point of view because that was not the view the party put to me when I devised the ad hoc mechanisms subsequent to the McKenna judgment.

There was no clamour from Fine Gael at the time to amend the Constitution to allow an advocacy role using public money by the Government. It is an honourable position but it was never argued or articulated to my knowledge until now. One cannot have it both ways. One cannot say there should not be a mechanism to provide a balance if one does not believe the Supreme Court decision should be overturned. If one advocates that, one should put forward a constitutional amendment.

This is a short Bill, clear in its intent. By and large, it puts on a statutory basis the arrangements we have explored on an ad hoc basis over the past three referenda. It advances some and is extraordinarily wide and discretionary on how the commission should work. That is a great cause of concern and I wish to tease it out. The Bill basically says the commission will be established, given a wad of money and may use consultants, the broadcast and print media and even organise meetings. This is too broad a remit for the commission. If there are difficulties arising from the commissions established to examine electoral law, it is that their remits were not specific enough and they found difficulties in understanding specifically what the Oireachtas wanted them to do.

There should be a single commission charged with these electoral functions. Time should be taken to debate it and we should try to build a consensus in the House on such matters which affect our democracy and how we conduct one of the most important aspects of it — the decision making power of the people in regard to basic law. I hope the Minister of State will put the case for a consolidated commission to his senior colleague and that the Bill will remain on hold until that sensible suggestion can be acted on.

Mr. J. O'Keeffe

The Bill is a major disappointment as in many ways it is just a warmed up version of the Private Members' Independent Referendum Commission Bill circulated by the Minister for the Environment and Local Government, Deputy Dempsey, in 1996. It puts on a statutory basis the work being done by the current ad hoc commission in dealing with information about referenda. It is a Pontius Pilate type Bill which does not deal with the essential issues that confront us.

We need to have a well informed electorate — informed by fact and not emotion — dealing with proposed constitutional amendments. We are concerned with the low turn out in recent referenda and the fact that people complained about not having been sufficiently informed. One informs in two ways, by providing basic information and advocacy. The Bill does nothing about advocacy and it merely puts in statutory form what already exists on an ad hoc basis with regard to disseminating basic information.

It is not informed by the detailed discussions taking place at meetings of the All Party Committee on the Constitution chaired by the Minister's colleague, Deputy Brian Lenihan. I cannot understand why there has not been rapport between both. As vice chairman of the committee, I know there has been very detailed discussion and research on matters in Ireland and internationally relating to the running of referenda. Why then was the Bill rushed without any reference to the committee? I have no doubt Deputy Lenihan will have a question or two for the Minister about that. The purpose of the research was to try and look at all issues so that ultimately we would produce, preferably on an all party basis, a report that would cover a great deal of ground rather than this very simplistic, minimalist approach. The Bill deals with the question of approved bodies and the recognition of same to appoint personating agents. That is an irrelevant relic of a bygone day. What personation will take place during a referendum when hundreds of thousands are involved? Will the Minister have individuals in Ballydehob checking to see whether a person is voting "yes" or "no"? It is rubbish and should be considered as such.

The Bill is a timid response to the main problems created by the McKenna judgment. It deals solely with information and there is no need for any such Bill. Any Government is entitled to issue information on any issue. The McKenna judgment does not affect that in any way, provided the Government issues it fairly, and there is no reason it should not. What is the purpose of the Bill, what has it got to do with the Amsterdam Treaty and why the rush? The approach adopted by the Government is wrong because essentially the Bill does not tackle the main point as it does not resolve the issue of the entitlement of a democratically elected Government to advocate a point of view in a referendum.

A Government is answerable to the Dáil, which is answerable to the people, and a Government, provided it does not break the law, should be entitled to advocate a view in a referendum. We should try to see how that might be best done in compliance with the Constitution whether by way of a constitutional referendum or by way of a Bill which could be referred to the Supreme Court to ensure it is acceptable.

The issues to be addressed by referenda in the future include not only the Amsterdam Treaty, but are likely to involve decisions, for example, on Articles 2 and 3 of the Constitution and other constitutional changes which may arise from the Northern Ireland talks. We must take the long and not the short-term view adopted by the Minister in this Bill. This is apart altogether from the issue of the general programme of constitutional reform.

To evoke a vigorous democratic response and a reasonable turnout in a referendum it is necessary to work out how to underpin referendum campaigns with adequate promotional and informational resources. I do not accept that minority or ad hoc groups springing up overnight in reaction to a particular proposal are entitled to equal funding to the Government or the political parties represented in the Dáil. The philosophy in this regard must be based on fairness rather than equality and that should be our aim in examining the issue.

What can the Government do despite the McKenna judgment? The Government is not precluded by the Supreme Court from presenting information to assist in the exercise of informed choice by the people. It has rightly issued a White Paper on the Amsterdam Treaty. There should be an obligation to produce a White Paper as a forerunner for every Bill to amend the Constitution. If necessary such a provision should be in statute or incorporated in the Constitution.

The special status of a Bill to amend the Constitution should be recognised from the point of view of time. I recall debating the Bill on Cabinet confidentiality which was rushed through the House in about six hours of debate all told. That was a bad mistake. Debates in the Dáil are useful for informing the people. There should be a minimum time of six or eight weeks required by statute or by the Constitution to ensure that legislation on referenda cannot be rushed through the Houses of the Oireachtas. Special funding should be available for such legislation. There is no funding restriction in the McKenna judgment on referenda Bills prior to their being passed by the Oireachtas. Funding can and should be made available for research by the political parties or surveys to ascertain the views of the people. Thus, the Oireachtas may make an informed view on constitutional change.

With regard to any such procedures the committees of the Oireachtas should be used. Submissions could be sought and oral hearings held as part of a wider legislative process. Such measures would help ensure more information was available to the public so that they might be fully appraised of issues before a Bill is passed.

If these proposals were accepted the situation would be in stark contrast to that which pertained last September when the Cabinet confidentiality Bill was rushed through the House. I do not think there was one report in any of the newspapers the following day on that debate, although there were other well-publicised events taking place here on that day, in the form of a personal statement by a Minister. We need to use the system better so that by the time a Bill has been passed by the Oireachtas people know what it is about.

In this Bill the Government takes a restrictive view of the effect of the McKenna judgment. Funding for research by political parties and others prior to the passing of a Bill is not affected by the Supreme Court judgment. Thereafter, it is possible to provide funding if it is thought necessary. When a constitutional Bill is put to the people it is like the monarch of old exercising a right of veto. The people do not influence what goes into the Bill but it is presented to them having been passed by the Oireachtas and they have the right of veto. The people act in the role of a judge making a decision on the basis of the evidence put before them. Dry information on such matters will filter through to some people, but to stimulate debate and to get people engaged in the process it is necessary to promote the debate and fund that promotion.

In this regard the Government should not be compared to a small interest group under an impressive title. It is possible to discuss and arrive at procedures to achieve fairness if the Government wishes to fund the promotion of a particular point of view. It is possible that there may be a role for a commission to adjudicate on the fairness or otherwise of the campaign adopted by the Government. However, this Bill does not even touch on these issues, rather it ignores them. It is a disastrous failure which will lead to a low turnout in the referendum on the Amsterdam Treaty.

We do not wish a repetition of the debacle that was the referendum on Cabinet confidentiality and that is why I want a Bill which addresses the points I raise. I am trying to be constructive but this Bill does not advance the debate. If we incorporated these and other ideas into a decent Bill and it presented problems there would be two courses of action open. The House could make clear its desire for the President to refer the Bill to the Supreme Court to test its constitutionality or we could propose a constitutional amendment. It may be argued that there is a time constraint and we must rush the ratification of the Amsterdam Treaty. Why is that? We have a year in which to ratify it. The only other country which has fixed a date for a referendum is Denmark and that is for the end of May. Why are we rushing? We should deal with the matter properly rather than rush through a Bill which will not deal with the wider problem.

On the information issue, the ad hoc commissions had neither the time nor the mandate to distribute information in previous referenda. They put together advertisements giving the cases for and against and that was all they could do. They were not dealing with the provision of information. However information is disseminated, by the Government or by a commission, every polling card should be accompanied by a pamphlet explaining the issues in the referendum.

The report of the first all-party committee on the Constitution, which I chaired, dealt with the information issue. The committee felt there should be one electoral and ethics commission. There are far too many commissions. There is a public offices commission, a constituency commission and a commission set up under the Electoral Bill. There should be one commission instead of the plethora that exists.

We envisaged from the report that the commission would be set up on a constitutional basis and as such would have powers to deal with cases, such as the McKenna case, that arise under the Constitution. I have my own ideas on the powers it should have, but that cannot happen with a commission set up on a statutory basis unless a Bill is referred to the Supreme Court. Otherwise, we are bound by the current judgment of the Supreme Court.

Because of time constraints I can touch on only some of the issues involved. This is a serious matter. We are dealing with the question of reforming the Constitution for the years ahead. Therefore, we must ensure that proper procedures and funding are in place and that sufficient time is allowed to discuss the legislation and to prepare documentation when it is passed. The commission will have no resources or staff. Who will deal with the documentation? Essentially, we are talking about people who know something about the Bill. The Minister did not deal adequately with that matter.

The Bill does not address the main issue. The Minister did not refer to the different approach adopted in Denmark. Did he examine the position in the states of the United States where a number of referenda have taken place? Did he examine the research carried out in those states on the different ways the public can be involved in a referendum debate? Did he examine the relative merits of advertising through the print media, the radio or by circulating pamphlets? There is ample evidence of the best way to disseminate information. There is also evidence on the best way to arouse a public debate on the matter. There should be advocacy on both sides and the necessary funds should be made available. A major defect of the Bill is the Minister's failure to address that issue.

The Bill should be viewed as a green paper and not rushed through the House. The commission has already been set up on an ad hoc basis. All it requires is the nod from the Minister for Finance that the Dáil has approved the necessary funding, which is not a matter for the Bill. I strongly recommend that we do not proceed with the Bill. There should be detailed discussion not only in the All-Party Oireachtas Committee on the Constitution but in the Select Committee on the Environment and Local Government. Experts should be consulted and submissions sought on the matter. The Government could then formulate a Bill that would have the support of the House and would be effective in dealing with the problems that confront us. Pending that, there is only one answer to this timid effort and minimalist approach — to vote against it.

Mr. B. Lenihan

I was surprised to hear the Fine Gael Opposition spokesperson indicate that his party proposes to oppose this measure. It represents a practical step in the right direction. While I accept a number of points have been canvassed by Deputies Dukes and O'Keeffe, the measure represents a practical advance on what preceded it. It is clear from what Deputy Howlin said on behalf of the Labour Party there will not be all-party agreement for the type of approach Deputy O'Keeffe advocated. In a matter that touches on the electoral system, the franchise, the rights of citizens and the proper conduct of a referendum, a measure of agreement between all parties is desirable.

The Bill represents a certain minimum, but I thought that minimum would be intrinsically acceptable, even to the principal Opposition party. Whether we as legislators should go beyond that minimum is a subject for further debate. The basic minimum provided for in the Bill is desirable. Therefore, it is curious that it is intended to force a vote on the matter at the conclusion of the debate. In forcing a vote on it, the principal Opposition party is opposing the merits of the proposal. Yet it has considerable merit and builds on some of the experience in this area to date and on some of the recommendations in the earlier progress report of the all-party committee on the desirable persons in the composition of a commission that should police a referendum.

The referendum is of great importance under our constitutional system. When the Constitution was repatriated to the people in 1937, and Mr. de Valera gave them an opportunity to pronounce on it, they adopted it. It remains the birthright of the citizens and since 1942 it cannot be amended without their expressed consent, freely given in a referendum. It is extraordinary that for many years our referendum legislation did not provide in great detail for the conduct of referenda or the dissemination of information. A section in the current and earlier legislation gives the citizen the right to purchase in the local post office, for the nominal sum of two and a half pennies, a copy of the Bill passed by the Houses of the Oireachtas. That is all that is provided for by way of information, apart from the polling information card which is also referred to in the legislation.

When formulating legislation in this area, the Government must respect the landmark decision in the case instituted by Patricia McKenna at the time of the referendum on the amendment to the Constitution that led to the introduction of a divorce facility. I have no doubt the Minister was conscious of the obligations imposed on the Government in the McKenna judgment when formulating this legislation. However, there is a danger in taking too literally the judgment of the judges of the Supreme Court in that case. There is scope for development in the interpretation of that judgment. For example, it is clear the judgment prohibits the Government appropriating public moneys to promote a particular result and, therefore, behaving in a less than even handed way in the promotion of a result. It is not clear, however, that the McKenna judgment prohibits the Houses of the Oireachtas — the Houses which adopt a proposal to amend the Constitution — from proceeding to promote their point of view with the electorate. When a proposal to amend the Constitution is submitted to the House in the form of a Bill, it is discussed by Members.

Debate adjourned.