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Dáil Éireann debate -
Wednesday, 4 Feb 1998

Vol. 486 No. 4

Referendum Bill, 1998: Second Stage (Resumed).

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

Before the Adjournment of the House last evening I expressed surprise that the principal Opposition party, Fine Gael, had decided to divide the House on this Bill, the purpose of which is to provide the people with more information in the referendum. It is a peculiar Bill on which to divide.

Up to 1995 Governments funded referendum campaigns in favour of particular proposals through the Minister sponsoring the proposal. There was controversy during the years, for example, about the Minister for Foreign Affairs funding arrangements for the promotion of a "yes" vote in campaigns connected with our membership of the European Union. In 1995 the House voted £500,000 to the Minister for Equality and Law Reform to fund a promotional campaign in favour of a "yes" vote in the divorce referendum. As Members are aware, Patricia McKenna, MEP, took legal proceedings which were successful in the Supreme Court and restrained the use of public funds for the purposes of promoting a "yes" vote.

A careful analysis of the judgments of the judges of the Supreme Court on that occasion shows that there is no clear overall reasoning in the judgments of the majority of the court. The Chief Justice, Mr. Justice Hamilton, and Mr. Justice O'Flaherty took the view that in allocating funds to the Government for expenditure in promoting a "yes" vote this House infringed the equality which has to be maintained between the two sides in a referendum argument. In his judgment Mr. Justice Blaney emphasised the voter's right to fair procedures. What is important in the conduct of a referendum is not strict equality between the two sides — an almost mathematical concept which is impossible to achieve in a political contest — but basic fairness that must apply in the referendum procedure. That is the constitutional obligation on this House in looking at a measure of this kind.

The decision in the McKenna case was subsequently considered in a petition brought by 11 o'clock another public figure, a Member of the other House and of my own parliamentary party, Senator Des Hanafin, who instituted proceedings after that referendum which sought to impugn the result on the basis that the result was affected by an interference with the conduct of the referendum caused by the illegal expenditure of moneys to promote a particular result. It was interesting to note that in the Hanafin decision, the Supreme Court indicated clearly that the Government was acting in accordance with its powers in giving factual information with regard to the proposal which is the subject of a referendum, in expressing its views thereon and in urging the acceptance of such views.

It is clear from the Hanafin decision the Government is not prevented from campaigning for an amendment or from advocating that the proposed amendment should be approved by the people. That is an important point in relation to the referendum, that there is no block on the Government engaging in a campaign and promoting a particular result. The Government established an ad hoc commission for the divorce referendum, the referendum on bail and the recent referendum on Cabinet confidentiality. The operation of that commission is described in the Minister's contribution.

I want to make one practical point which I hope the commission will take into account in exercising its functions on the Amsterdam referendum. It is interesting to note that in the divorce referendum the ad hoc commission prepared a pamphlet which cost £143,000 to circulate to every household in the State. On the other hand, in the bail and Cabinet confidentiality referenda the cost was £400,000 in each case and that cost was incurred in respect of taking out advertisements in the public press and in the press generally. That is not an effective way of conveying information to the voter. The information might as well have been included in a copy of Iris Oifigiúil as put in a notice in the national and local newspapers. A pamphlet attractively designed and presented would have the advantage of reaching every household and would set out a balanced set of arguments for the voter in that household.

There is some evidence from research available from Australia where an Australian electoral commission has to post an official pamphlet to every voter. A national telephone poll before a l988 referendum in Australia reported 87 per cent of respondents saying they had received the pamphlet and 62 per cent saying they had read it. That was a failure to reach 38 per cent of the electorate. Any politician would agree is quite a high success rate.

Surveys on ballot voting carried out in Massachusetts suggest that pamphlet distribution is the most effective information source for the voter followed by newspaper reports, television news reports and then radio news and talk shows. It is interesting that paid advertising on the ballot questions is very far down the list and in Massachusetts was found to be used by only 10 per cent of the electorate. That suggests the rather expensive newspaper advertisements used in the Cabinet confidentiality and the bail referenda were useless in that they reached 10 per cent of the voters. I hope the more inexpensive method of preparing a good pamphlet and circulating it to every household will be considered in relation to the Amsterdam referendum. Talking to voters after those referenda the general view was that inadequate information was provided in both of those referenda.

The voter receives a voting card and it seems sensible that the voter should also receive a document setting out the arguments for and against the referendum. Difficulties may arise in that but ideally the voting card could be included as a coupon on the information leaflet. When politicians are then told they have not circulated any information about this proposal it can be pointed out to the voter that it arrived with the coupon accompanying the voting card.

I would like the commission to examine that issue, although I realise time is limited. One of the difficulties the commission has faced in circulating information is that there is a limited amount of time available to it to assemble the arguments made during the debates in this House and those that may be made by other interested parties, obtain legal advice on those arguments, cast them into a form that is acceptable for rational digestion by the electorate and then physically prepare the documentation and circulate it. All of that takes time and I appreciate time may be limited for the commission but I urge it to try to reach each household in the course of this referendum.

Another question which has arisen in connection with the Referendum Bill is whether promotional funds should be made available in the conduct of a referendum. The Minister has limited the Bill to the giving of information, and that is a real advance. Up to now the legislation merely provided that a person could visit the local post office and purchase the Bill for two and a half pence, but that was not of great assistance to the voter and I doubt very many voters had recourse to that procedure.

We are now setting up a commission which will have a positive obligation to inform the electorate about the merits and demerits of the proposal. That is a real advance but I understand the position of the Fine Gael Party is that we should go somewhat further and allocate moneys to promote a particular result in proportion, say, to the party's strength in this House. That comes back to the decision in the McKenna case and the question of whether that case obliges us to be strictly equal in funding which promotes a particular result in a referendum. If one takes the view that the decision requires that, then the Government, in funding the advocacy argument on a referendum, would then be obliged to give as much money to its opponents as it gave to its own side. No Government would be anxious to take up that proposal.

That raises the wider question of whether the McKenna decision requires the Government to observe that strictly drawn equality. On reading the judgments of the Supreme Court, it may be that the concept of fairness is more fundamental than the concept of equality in deciding how funds should be allocated for promotional purposes and, therefore, one could draw up a scheme rather like the schemes that obtain in Canada and in Denmark where in relation to the promotional side of a referendum, if money is allocated some element of proportionality is built into it to reflect the size and strength of the different interests represented in this House. This House has a direct democratic mandate from the people and it could be argued that element of proportionality should be built into any system for the allocation of funds for promotional purposes.

I understand why the Government has decided not to go down that route in connection with this Bill. We are facing a referendum soon and any such proposal would have to be referred by the President to the Supreme Court for its consideration were it to be mooted at this stage. It is an issue to which we will have to return because the judgment in the McKenna case is not wholly satisfactory. I do not wish to take from the fact that Patricia McKenna took the proceedings and established an important principle that the Constitution belongs to the people in fact as well as in legal theory and that there must not be an abuse of process by the Government in the expenditure of money during a referendum. I accept that establishing that principle through legal proceedings, where the risk of incurring costs was on her as a plaintiff, was a brave step and I salute her for that, but some of the judgments are less than satisfactory in their conclusions and their implications for the way we conduct our business in the State. We must examine the question of whether that strict equality must necessarily apply to funds available for the promotion of a particular result in every referendum.

There can be a referendum that is non-contentious. For example, a proposal was adopted in l972 to lower the voting age to 18. Currently there is an agitation to lower the age of entitlement to become a Member of this House to 18. Such a matter might not be very contentious. It seems anomalous that a person aged 18 can vote for a Member of Dáil Éireann but cannot be a Member before reaching 21 years of age. There are persons on the register who are not permitted to contest parliamentary elections. That is a matter we might examine in the future and if a referendum were held on it, it would not seem necessary to have a promotional campaign. A fairly minimal information campaign would suffice.

There could be other proposals to amend the Constitution, proposals in the not too distant future on Northern Ireland where the promotion of a particular result would be very much in the national interest. It would be disturbing if the Government in seeking to allocate funds for the promotion of a particular result found itself in a position where those promoting a "no" result would have to receive an equal amount of funding.

To some extent a similar problem can arise in connection with our membership of the European Union because there is an overwhelming degree of public support for the European Union among public opinion and the political parties in this State. It has not been imposed by Brussels, it has arisen because of our experience of Community membership over more than 25 years. We are into our third decade of experience of membership of the Union and it has given great satisfaction to the bulk of our population. The Government is entitled to point out the obvious benefits and advantages of membership, but it seems absurd that if it wishes to use public money to do that, it would be obliged to disburse an equal amount of public money to a collection of individuals who are not representative of any substantial weight of opinion in this House or country. We must always be careful in this type of matter to safeguard the rights of minorities. That is why we had the McKenna decision. I welcome it but I question if it went too far in its conclusions.

Another main issue addressed as a matter of principle in this legislation is safeguarding the position of the minority. There was an anomaly in referendum legislation in that where there was unanimous support for a proposal in this House there was no approved body which could permit the appointment of agents at polling stations and at the count in connection with a referendum. I welcome the provision of machinery by the Minister in this legislation for the recognition of those approved bodies. The practice up to now has been that a member of the Oireachtas can appoint agents to be present at polling stations for opening postal ballots and at the counting of votes in a referendum. If all Members of the Oireachtas were in agreement with a particular proposal, those campaigning against it would not have any legal rights in relation to the referendum procedure. It is important to establish machinery for the recognition of approved bodies which can appoint agents and other necessary legal creatures of electoral procedure. They can safeguard and protect their interests at the various stages of the casting and counting of ballots. That is a welcome and necessary measure in the Bill. The Minister explained the rather curious and anomalous manner in which this matter had been regulated to date.

I wish to share my time with Deputy Hayes.

Is that agreed? Agreed.

Much of the comment from the Opposition Benches on this Bill has been negative. Generally speaking I welcome the Bill. It is a step in the right direction and represents the democratisation of the referendum process. In looking back on the evolution of this process we should remember Mr Raymond Crotty, who went to court before Patricia McKenna and made it necessary for the State to hold referenda on important European issues. Referenda have been held on the Single European Act and the Maastricht Treaty. If it had not been for the persistence, integrity and courage of Mr. Raymond Crotty there would not be a forthcoming referendum on this. Were it not for the persistence, courage and zeal for democracy of Patricia McKenna this Bill would not be before the House. I thank Deputy Lenihan for saluting Patricia McKenna's achievement. I agree it was a milestone and a victory for democracy and smaller groups. I take issue with Deputy Dukes who yesterday dismissed the McKenna judgment and said it was based on specious arguments. It was a great victory for democracy. We often hear Members speak of transparency and democracy, yet those Members had to be dragged kicking and screaming to the altar of democracy. If it had not been for the courts we would not have had the McKenna judgment and those referenda. It is due to Patricia McKenna and Raymond Crotty that we have a little more democracy.

Previous referenda were held on the basis that people had not been fully informed on what they were voting. We saw that recently in the Cabinet confidentiality referendum, which was a debacle. In a real democracy we need diversity of opinion, but the Irish political landscape has become a barren place where there are five, not very different, parties. To use the analogy of a healthy ecosystem, it requires biodiversity and a healthy political system requires political diversity. We cannot have real democracy if we do not have diversity of opinion. Too often in previous referenda the so called five main parties sang from the same hymn sheet. That is regrettable. It has been left to the Green Party to offer a different point of view. I believe the commission that will be set up will do a good job and I hope it will present the arguments in a fair way. It states in the legislation that it is to be fair to the interests concerned. There has been much discussion lately about the public office commission that has been set up to examine donations received by Members at election time. There has been much disquiet about that. People have said the commission has been too zealous and assiduous in its work, but I welcome the work it has done. It helps to level the playing field. It is no longer the case that people with money can buy votes. Donations have to be declared.

Similarly the new commission will have £2.5 million to divide equally among the various interests. That is in keeping with the spirit of the McKenna judgment. People can be properly informed about the arguments by the circulation of leaflets and the publication of advertisements. People did not read the boring and not very user-friendly advertisements in newspapers used to present the arguments on the bail referendum and Cabinet confidentiality referendum. It is hoped that television and newspaper advertisements setting out the arguments on this forthcoming referendum will enable people to consider those important arguments.

In an article in The Irish Times Mr. Patrick Smith referred to legislation in Denmark which provides for money to be given directly to the parties. I believe that is a bad idea and could lead to a good deal of disquiet. The public are cynical enough about parties and if money were given directly to them it would only increase that level of cynicism. A very large amount of money is involved here.

In relation to referenda, parties do not have any constitutional status. Referenda are about the people. The people must decide and they must be properly informed. I believe Ed Rollins, a political consultant in the United States, said: "you can fool all the people all the time if your advertising budget is high enough". Too often in the past we saw Governments put the money into propaganda and the promotion of a one-sided version of events. That distorted the arguments and led to an undemocratic process. When Governments could no longer do that because of the McKenna judgment, they decided not to give any — or very sparse — information. That led to many people complaining that they did not have enough information, particularly in regard to the Cabinet confidentiality referendum. That was evidenced by the large number of spoiled votes and a general lack of interest in it to the extent that I believe I was the only TD at the count of that referendum. It was an indictment of our democratic system that Members of this House did not bother to turn up for the count.

RTE plays an important role. Its record on referenda has been shameful in many instances. Mr. Bob Collins, the Director General of RTE, said the essence of balance is fairness. Where was the fairness in previous referenda when five political parties who represented the same point of view were given special broadcast time? This is unfair and undemocratic. RTE is the public service broadcaster and it has a duty to inform people impartially. Hopefully, because of this legislation, there will be fairness in RTE's broadcasting on this referendum.

Unfortunately, newspapers cannot be legislated for and we will see a distorted attitude from sections of the media. I saw it last Sunday in the Sunday Tribune where Mr. Stephen Collins, a responsible journalist on most occasions, said this referendum would be opposed by the Green Party and “other fringe groups”. This is a nice way of immediately marginalising those opposed to this referendum. He also referred to those opposing it as “anti-Europe”, which seems to equate Europe with the EU. Mary Banotti, the Fine Gael MEP, told a good story about a delegation from the Czech Republic visiting the European Parliament. One of the commissioners welcomed them to Europe to which one of the delegation rightly answered they had been there all the time.

Europe is much more than the European Union. Those of us who oppose various treaties are not Eurosceptics. I am a Europhile with every fibre of my body. If a treaty is flawed — and this one is — we need argument and debate on it. There was scarcely any debate in this House on EMU. There has been an abdication of political responsibility in that no one has had the courage to point out that it could be bad for our economy if Britain does not participate, which it is clearly not going to do. Our economy could overheat if we go in at the rate of DM 2.41, which many people want to happen. However, no one is calling for a halt. It is left to economists in universities to stimulate a good debate on this issue. The politicians have remained silent. I hope there will be informed debate on this Bill.

There are a number of flaws in the Bill. Spending should be capped, as is done in constituencies regarding general elections. There is nothing to stop organisations spending huge amounts of ecus on a one sided debate. I refer particularly to The New Treaty for Europe — A Citizen's Guide which is to be included in the latest issues of Magill, the RTE Guide and the Sunday Tribune. It is one-sided propaganda. The foreword is by Mr. Jacques Santer and it may be given to every household. It distorts the argument and there should be a cap on spending on such information. Deputy Lenihan referred to Canadian legislation, which places a cap on spending. The source of donations for referenda has to be declared. This should be included in this legislation. Outside interference should be stopped.

This Bill is heading in the right direction. We will put down amendments on Committee Stage. First, we need to restrict how and where finance can be sourced. Second, we need to restrict the total contributions which can be made by individuals and organisations not directly involved in the referendum process. Third, we need to limit the total amount of money each registered referendum committee can spend during the process. These are important aspects which were not addressed in this legislation and I hope we can do so on Committee Stage.

Mr. Hayes

I thank Deputy Gormley for sharing his time. The position of my party in opposing this legislation is a clear one. It is not good to rush this legislation through the House. It is not necessary at this stage and it flies in the face of the recommendation of the all-party committee on the Constitution that a single commission should incorporate the various commissions established recently. There is no point enacting legislation if there is a better vehicle to address the purpose of it.

Referenda are fundamentally important to our democratic process. Our Constitution derives from the people. When a Minister receives a seal from the President, it is given by the people. The people ultimately have the most important role in the democratic process. They must be encouraged to vote and express their view. I agree with my colleagues that we should enhance the referendum process.

Recent low turnouts in referenda demonstrate the widespread support for the measure being voted on. There may have been confusion on the issues of Cabinet confidentiality and bail. However, there was widespread agreement on these measures. People frequently decide not to vote because they are in agreement with the measure and know it will be passed. There is motivation to vote when an issue is contentious, such as the divorce or the abortion referenda. When the country is divided, it frequently leads to a bigger turnout. Polling for the divorce referendum was held on one of the worst evenings weather wise. This did not reduce the turnout because the issue was hotly contested.

People can exaggerate the issue of turnout in referenda for political reasons. A national debate must be generated to ensure a good turnout. Money will not do this. A national debate requires the issue to be hotly contested among various sections of the population. There is widespread agreement on the issues of Cabinet confidentiality, bail and Europe. This leads to a low turnout as the same level of motivation does not apply to those issues.

One of our major objections to this legislation is that we have seen a raft of commissions proposed in recent years — the Public Offices Commission, the Constituency Commission and the Independent Referendum Commission. With respect to those sitting on these commissions, it is time all their functions were brought together under one commission. The usual suspects such as the Clerk of the Dáil, the Clerk of the Seanad and the Ombudsman are brought together every time a new commission is established and a new function farmed out to it.

We need a much more realistic view of how we organise our electoral affairs. That is why the all-party committee proposed the establishment of a single commission to deal with, for instance, the issues of donations to parties, constituency reviews following a census, and referenda. There is no need for four separate commissions to observe and put into effect all these functions. By adding another commission we will not only confuse the issue but will also not use the relevant officials' time to the maximum. There is no need for all these commissions, one specific commission would do the job quite well.

In many ways the proposal undermines the committee process of the House because an all-party committee could make a definite proposal for streamlining the commissions under one new commission. The Government seeks to oppose that. As Deputy Lenihan was chairman of that all-party committee at the time, the strength of support for that proposal should be heard by a plenary session of the House and by the Government.

I welcome any proposal that would overturn the anomalous situation whereby an agent of a "yes" or "no" side cannot attend the count or the opening of postal votes. That is a sensible measure. It could be amended quickly through legislation instead of linking it to the establishment of a new commission. If the Government re-examined the proposal it would find merit in it.

A sum of £2.5 million is being spoken of in terms of spending on the forthcoming referendum on the Amsterdam Treaty. If that is the case it will probably be the most expensive campaign in the history of the State for a turnout of 50 per cent or 60 per cent if we are lucky. We must begin to ask whether we are getting value for money. If the expenditure is £2.5 million and 1.5 million voters turn out, it might be easier to hand them all £1.50 each to get out to vote instead of putting leaflets through their doors. If this proposal goes ahead the Government can spend a huge sum of money which would make it a most expensive campaign. It is not something we should encourage.

Section 7(4)(a) is a curious element of the legislation and states that:

A Commission may refuse to make a declaration under subsection (1) if—

(a) in the opinion of the Commission, the body concerned does not have a bona fide interest in the proposal the subject of the referendum concerned.

We are inferring there that an independent commission will have to take a political decision about whether such a body applying to that commission for funding can be heard. In that situation we could be conferring a hugely contentious political objective on the new commission.

I can also see other problems concerning the establishment of the body in that it is only within the State. What happens on the issue of Articles 2 and 3 of the Constitution when we get to that stage of the Northern Ireland peace process? Will it be the case that 500 residents of Northern Ireland, who hold Irish passports, cannot apply to this commission because they are not resident in the State, which they are not? Has that matter been thought out?

We will oppose this on Second Stage for some of the reasons that have been mentioned in the course of the debate. I would encourage others to do so.

I welcome the opportunity of speaking on this Bill which is totally inadequate to deal with the problems that have arisen in the conduct of referenda following the McKenna judgment. The legislation before us is one of the most absurd provisions ever to come before this House. The conduct of referenda as pursued under this legislation will be highly artificial and probably undemocratic. For that reason, Democratic Left will oppose a second reading of this Bill.

We are told the Bill is necessary to deal with the McKenna judgment. It is worth revisiting the circumstances of that judgment. When the Green MEP, Ms Patricia McKenna, went to the courts to challenge the then Government's right to advocate a "yes" vote in the divorce referendum, she argued through her legal representatives that an equivalent amount of money should be made available to promote the "no" case. It would appear the conclusion arrived at by the courts has been interpreted by the present Government as meaning the Government cannot spend any money in promoting a referendum. That is a fundamental misunderstanding of the Supreme Court judgment.

As I understand it, that judgment was essentially about the question of fairness in the conduct of a referendum. If a fair opportunity and fair resources were being provided for both sides to present their cases in a referendum debate, then the difficulties the Government has been encountering since that judgment in presenting its case on a referendum, would be met.

Since the McKenna judgment we have had an unsatisfactory experience in relation to referenda. The conduct of the referenda on bail and Cabinet confidentiality were nothing short of a disaster. We had a totally neutered debate with anodyne and turgid texts, arguing for both sides, being prepared for publication in newspapers and circulation to the public. Missing from the debates, both on the bail and Cabinet confidentiality referenda, was the normal passion and cut and thrust of political debate.

If anything, the McKenna judgment has worsened the conduct of referenda. One can look at what happened in the past and all the evidence is there. One thinks back, for example, to the 1960s when a Fianna Fáil Government attempted to amend the Constitution to change the proportional representation system of voting. The people threw that proposal out even though the Government strongly advocated it. There was a very robust debate in 1972 on our proposed entry to the European Community. In 1986, when the Government advocated a change in the Constitution in relation to divorce it was defeated by the people. It was something I was less than happy with but, nevertheless, that was the decision of the people. There was also a robust debate on the abortion referendum in 1983 and there were robust debates on the Single European Act and the Maastricht Treaty.

I agree with the principle that has been established in the McKenna judgment that fair resources should be provided to present both sides of a case. I am disappointed this Bill is being put before us at a time when the all-party committee on the Constitution has been considering this very issue. It makes one wonder about how serious the Government is about the work of the all-party committee, when it can introduce legislation not only ignoring the work of the committee but ignoring the very recommendations the committee has made.

The Deputy said we had robust debates during the referendum to change proportional representation. However, he has forgotten that the Government at that time did not use public money to the extent it does now. We also had proper opposition in the past four referenda.

Carlow-Kilkenny): The Deputy has already intervened. I ask him to resume his seat.

I hope that inaccurate history lesson will be deducted from my time.

I hope it goes on the record of the House.

It will but it is still wrong. As I recall, Fianna Fáil was serious in the 1960s when it wanted to change the Constitution to have single seat constituencies and a first past the post system.

Did it use public money?

Yes. Fianna Fáil seems to be hankering after it yet, to judge by some of the comments made by the Minister for Environment and Local Government about the electoral system.

The recommendation was that the commission should have a function to mount an adequate information campaign and to allocate funds to political parties and interest groups to ensure a thorough and sustained debate on the proposal. That recommendation has been blithely ignored by the Government.

The Bill includes a provision that there will be an independent commission. I have no difficulty with the idea or the proposed composition of an independent commission. However, anyone who wants to get a pass for an election count, to be an agent at a polling station or to make an observation and have it considered by the commission must make a submission. Only those bodies with a membership of more than 500 members who can present their articles of association will be enabled to do so.

The late Mr. Raymond Crotty made an enormous contribution to debate on referenda. His court challenge to the Single European Act required successive Governments to present amendments to the European treaties to the people in referenda. He was not a member of an organisation which had more than 500 members. Many of the people involved in referendum campaigns are not necessarily involved in organisations of more than 500 members. Many of the campaigns are driven by small groups of people who have an understanding of and a commitment to the Constitution and who put forward their case. This will result in all types of artificial membership and membership lists so that people qualify to make a submission.

The commission will have £2.5 million to spend putting forward the case for both sides of the referendum campaign. They will be entitled to hire advertising agencies to put each side of the argument. These will be attractive advertising contracts. The advertising agencies will know a great deal about how to advertise but they may know little about the issues at stake in the referendum or the conduct of politics. They will place advertisements in public newspapers and on radio and television. However, these might not relate to the issues which will arise during a referendum.

At the beginning of any referendum campaign one does not know what type of issue will arise. Who could have predicted when the Maastricht Treaty was signed that one of the issues which would be most loudly debated during the referendum campaign would be abortion? During the last divorce campaign people predicted that the central issues would be social welfare, property ownership, pensions, etc. By the time the campaign was well under way, the main issue was its wider implications for society. One cannot anticipate what issues will arise in advance of a referendum campaign.

We should also look at the way it might conduct its advertising campaign. It cannot, for example, produce a party political broadcast using the Taoiseach because that would be seen as the Government promoting a "yes" vote in the campaign. However, it might be entitled to use an actor who acts the part of a Taoiseach. This would give rise to the most absurd and artificial presentation of the campaign.

The press and media are quick to tell us the public has a right to know and its job is to tell the public about what is happening in public affairs. The effect of this independent commission and its budget of £2.5 million, however, will be to reduce the amount of press information about a referendum. I cannot see many editors, for example, deciding to ask correspondents to find out what is in a complicated constitutional proposal, to write feature articles on it and to present documentaries on radio and television explaining it to the people. They will wait until someone with £2.5 million of public money places an advertisement with them. An unwitting effect of this will be a reduction in the amount of press coverage and press information about a campaign.

There is no control on spending by groups outside the political process. The Government cannot spend anything independently, political parties will not be funded to pursue a referendum campaign and groups with a particular interest in the campaign must send their submission to the independent commission. Any group outside that, however, can spend all the money it likes to influence the people to change the Constitution. If, for example, the all-party talks in Northern Ireland are concluded in a number of months' time and there is a proposal to amend Articles 2 and 3 of our Constitution, one can envisage a situation where the Government will not be permitted to make its case for that change. Instead, the material will go through the anodyne process of the independent commission. However, a group might raise millions of dollars in the United States and mount a massive campaign in the referendum. We have already had evidence during referendum debates of highly resourced and financed groups, some from fundamentalist religious groupings in the United States, pumping money into campaigns in the State. There is nothing to prevent that from happening. A situation could arise where the Government is muzzled in its conduct of an election campaign but powerful interests inside or outside the State, such as media groups or well resourced fundamentalist groups who want to use the Constitution to make a point, as happened in the abortion referendum, could provide finance and proceed to make their case.

We could also have a situation where the government of another state is not prevented from spending money to influence the public on a referendum to change the Constitution. The Amsterdam Treaty was negotiated by one Government but is being put to the people by another Government. If, for example, the next European Union treaty is negotiated by one Government and the referendum is set up, but a general election takes place before it is held and the new Government decides that it has gone too far on the issue of defence so it should be opposed and an alternative negotiated, it could be prevented from advocating its case to the people although it might have campaigned on that issue in the general election. It could happen that the government of another state which wants the treaty accepted would be enabled to spend money to influence the people of this country on the issue. Private interests outside Government could do this. Let us say, for example, that in the context of the conclusion of the talks on Northern Ireland an east-west body is established, and that east-west body between Ireland and the United Kingdom has a function in relation to transboundary pollution, and has powers which would curb the activities of the nuclear industry in the United Kingdom, and let us suppose that body has jurisdiction over the Irish sea. In such circumstances British Nuclear Fuels or any aspect of the British nuclear industry could conceivably, if it felt strongly enough, put money into a referendum campaign to persuade the Irish people not to pass it. There is nothing in the legislation which prevents that. The all-party committee draws attention to the situation where a Government might be elected on a programme of constitutional change but, once elected, would be effectively muzzled in pursuing its case during the course of a referendum campaign. This Bill is a recipe for muzzling the democratically elected Government of the people. It is a recipe for the not providing resources to the political parties and to people who are democratically elected and whose business it is to pursue public affairs here, or to groups who have a particular interest in the referendum campaign itself and for allowing carte blanche to any vested interest or anybody with sufficient money to attempt to influence the views of the people in a referendum.

There are alternatives available to the Government. I commend the arrangements being made in Denmark which seem very reasonable. There will be a referendum there on 28 May on the Amsterdam Treaty. Their Government is making £2.5 million available, the same amount of money our Government is making available, to be administered by an independent committee, but the Danish approach is different. The fund will be divided in two. Two thirds of one half will be divided among the political parties, based on their electoral support, to allow them to pursue the campaign. The remaining one third of that half will be divided among the European Movement and two organised groups opposing the treaty. The other half of the money will be made available to local organisations, grass roots committees, whether they are for or against the treaty, so that they can make information available to the public. In the meantime the Government will produce information explaining what is in the treaty. That seems a much better way of conducting a referendum campaign and providing fair resourcing and equality of treatment between the sides for and against, than the method being advocated by the Government at present. It would be preferable to have resources made available through political parties, through democratically elected Members of the House, perhaps through local authorities, through the various organisations that have an interest, for example, the social partners, and through local organisations who would be able to use those resources and have a better debate.

A very dangerous tone is developing in the conduct of public affairs here. It is as if the last people in the world who should offer an opinion on public affairs, or who should be resourced to inform the public about public affairs, are the people who have an electoral and a democratic mandate from the public. I am sick and tired of people who did not get an electoral mandate of any kind taking the view that people who have an electoral mandate, who have put their case before the people and who have had their case validated in one form or another, advocating that people involved in public affairs, who negotiate various issues that have to go before the people, who debate those issues and who are very often the most informed about them, should be muzzled when the issue goes before the public. That is bad for democracy. It will create a situation where the conduct of referenda will be totally artificial, totally anodyne and totally apolitical. It is no wonder the public show little interest in referenda, that the numbers of people turning out to vote are declining, and that the most common comment on the day of a referendum is not that people are for or against it but that they do not know anything about it. The experience we have had over two referenda is that in campaigns where the conduct of debate is sterilised and distilled by independent people of one kind or another, without the passion, debate and argument that go with political debate, the public simply do not know what the issue is about, much less what position they should take on it.

I welcome this Bill and the establishment of the referendum commission which has the potential to make for much fairer referenda than we have had in the past. This Bill is a long overdue measure, and it has come about ultimately because the unfair practices of successive Governments in the conduct of referenda have become politically untenable. It was vigilant campaigners, whether groups or individuals, who swam against the tide of political and media consensus about the European Union who challenged this injustice. I pay tribute here to the memory of one of those people, the late Raymond Crotty, a courageous and patriotic citizen with whom I had the honour to share a platform on several occasions. Ray Crotty's constitutional challenge gave back to the people their right to decide on vital issues of sovereignty and neutrality which had been usurped by successive governments. It was necessary for another citizen, Patricia McKenna, a Dublin MEP — much respected in her native County Monaghan — to challenge the Government again after it resorted to unconstitutional practices in referenda by spending public money on one side of the argument only. Two major treaties, the Single European Act in 1987 and the Maastricht Treaty in 1992, had thus been ratified in an undemocratic fashion by means by which the McKenna judgment found to be unconstitutional.

This Bill goes a long way towards restoring the balance. I hope the new Commission will be allowed conduct its work thoroughly and impartially. It is required to be "fair to all interests concerned", and that must be strictly adhered to in terms of allocation of resources. The letter and spirit of the McKenna judgment mean there must be equality for the "yes" and "no" sides so that the people can be allowed to make a balanced judgment.

I said that I hope the Commission will be allowed to do its work, and I stress the word "allowed", because there are several ways in which it can be thwarted. Already the European Commission has been spending public money promoting the Amsterdam Treaty with its booklet "A New Treaty for Europe: A Citizen's Guide", referred to earlier by another Member of the House. This partisan publication constitutes interference in the democratic process and is way beyond the remit of the Commission. This booklet has been distributed as a free enclosure in at least one Irish magazine. Public money is indirectly funding this project, and it is thus in breach of the McKenna judgment. This booklet should be withdrawn.

The second way in which the referendum commission can be thwarted is if RTE continues its unfair practices in the allocation of time for party political broadcasts. If the commission produces television advertisements giving fair and equal treatment to the "yes" and "no" sides, then surely its purpose will be nullified if RTE, as has been its practice, invites parties to do free broadcasts, the duration of which are determined by the electoral support for the party, regardless of whether they advocate "yes" or "no". RTE's most recent practice also excluded parties with fewer than three Members of this House. If repeated, this practice will make a mockery of the commission's efforts to ensure impartiality.

Recent debate on this issue in the House focused on the unsuitability of newspaper advertisements in recent referenda. However, the reality is that such campaigns are won and lost on television and radio, from which most people receive news and information. The onus is on RTE to ensure that the fairness and balance required of it in the coverage of current affairs is not set aside once again in a referendum context.

The third way in which the referendum commission could be thwarted is if the Government persists with its proposed wording for the Amsterdam Treaty referendum. This incredible amendment would insert into the Constitution a blank cheque which would give future Governments the power to finally abandon neutrality by agreeing to participate in an EU military alliance. They could do this without resort to a referendum, and the referendum commission would be made redundant in so far as EU matters are concerned. How would Fianna Fáil feel if a future Fine Gael led Government decided, without consulting the people, to bring us into NATO's Partnership for Peace, which Fine Gael is so anxious to do and which has been advocated by Deputies Bruton and Mitchell in recent weeks?

It seems the Government's blank cheque may have bounced given that we were to debate the amendment ratifying the Amsterdam Treaty this week. This debate has been postponed while the Whips are in conclave. Regardless of whether this blank cheque amendment survives, my party will oppose ratification of the Amsterdam Treaty. The people are being asked to write into the Constitution a commitment to a so-called common European defence and the dilution of our sovereignty and independent foreign policy.

Mr. Hayes


When launching the Amsterdam White Paper last week, the Minister for Foreign Affairs, Deputy Andrews, promised a referendum on neutrality. The same promise was made by his predecessor, Deputy Spring, before the last election but we are still waiting for this referendum. Our neutrality should be safeguarded in the Constitution by way of an amendment which keeps the hands of future Governments off the people's sovereignty. The Government should be forced by the people in the upcoming referendum to hand back the treaty and renegotiate it on the basis of our true national interests. That, Sir, is not rubbish.

I have judged the referendum Bill on its merits and have concluded that it is a positive step forward. Accordingly, I support its adoption.

I thank the Deputies who contributed to the debate. I will deal with some of the points raised by them.

Deputy Dukes asked who will produce the leaflets and pamphlets containing the statements to be issued by the commission. He questioned the competence of the members of the commission to carry out their functions. In the forthcoming referendum on the Amsterdam Treaty it will be a matter for the commission to decide how it carries out its functions. However, given the complexities of the treaty, I expect it will get experts to draw up the statements. The commission will be responsible for ensuring that the statements are fair to all the interests concerned. It is not necessary for the members of the commission to be expert on all matters. They are being given the power to engage experts whose job it will be to produce leaflets etc., in simple and easy to understand language so that the problems encountered by the previous ad hoc commission will not be repeated.

One got the impression from Deputy Dukes that he believes the five member commission will do everything, but this is not so. Staff will be provided and the commission will have power under section 4 to engage any type of consultant it deems necessary. This will enable the commission to organise and fulfil its functions in the limited time available. My officials have brought the Deputy's suggestion on the distribution of the summary of the White Paper to the attention of the appropriate personnel in the Department of Foreign Affairs.

Several Deputies referred to politicians engaging in debate at a referendum. There is nothing in the Supreme Court decision or the Bill to prevent politicians from engaging in debate on a proposal at a referendum. The publication of material by the proposed commission should assist politicians and others in engaging in debate. The public will be given statements by the proposed commission which should assist them in engaging in debate.

Deputy Dukes said this Bill is not the answer. However, we will not know this until we have seen how it operates. If changes are needed I will consider the matter further. I stress that the commission is not responsible for the turnout of voters. The work of the commission will assist voters in coming to an informed decision but it cannot be blamed, as suggested last night, if there is a low turnout on polling day.

Deputies referred to the work being undertaken by the All-Party Committee on the Constitution in relation to referendum information. The Bill is not an attempt to gazump the committee, as recently suggested by one committee member in the press. It is anticipated that the referendum on the Amsterdam Treaty will be held at an early date. Everyone agrees that it will be difficult for the commission to explain the treaty in simple language. The Bill is being taken now so that the commission will have the necessary statutory powers to carry out what will be a difficult task in a short period.

I will consider any recommendations made by the committee. The enactment of the Bill does not mean recommendations will not be implemented for future referenda. Further electoral legislation will be introduced in the months and years ahead in which recommendations can be considered. The Bill does not include some elements of the recommendations made by the Constitution Review Group and the All-Party Committee on the Constitution in its first progress report. The question of a further constitutional amendment to give a constitutional basis to an all-embracing commission to include the constituency commission and the public offices commission, together with the proposed referendum commission, will have to be further considered. However, this should not be a reason to delay the enactment of the Bill.

Deputies referred to the Danish proposals on referendum information. An essential part of the Danish proposals is the division of the funding made available by the Danish Government. As I understand it, the fund will be divided in two halves, with one half being paid to grass roots groupings both pro and anti the proposal and the other half disbursed as follows: two thirds divided among the political parties in proportion to their electoral support and the balance divided equally among three groups — the European Movement and two organised groups which are anti-EU.

With respect to the Danish proposals, this scheme would not work in this country. If we proposed the introduction of a similar scheme we would probably find ourselves in the High Court. In any event the Government favours giving funds to the proposed statutory commission so that it can carry out the functions set out in section 3 in a manner which is fair to all concerned.

I note the support by Deputy Howlin to a single electoral commission. A similar proposal is contained in the report of the All-Party Committee on the Constitution with the provision that it be given a constitutional basis. This matter might be considered further by the Joint Committee on Environment and Local Government but it should not be used to delay the enactment of the Bill. If such a proposal is eventually agreed then the Bill can be incorporated in new legislation, at which stage we will have the benefit of practical experience. If it needs strengthening, such amendments can be included in the new legislation.

Deputy Howlin asked about the accounting arrangements for the proposed expenditure. The commission and its staff will be bound by all existing public accounting rules and procedures applicable to the public service, especially procurement procedures in the case of engaging consultants. The proposed members of the commission will be fully conversant with public accountability requirements from their responsibilities in their respective offices. It is not considered necessary to include in the Bill every detail of such normal accounting requirements. Section 4 refers to guidelines issued from time to time by the Minister for Finance.

The money provided by the Oireachtas will be included in the Estimates of the sponsoring Department and Deputies will be able to raise concerns on consideration of the Estimate. The expenditure will also be reviewed in the annual audit of the Department concerned. The Committee of Public Accounts can query the respective accounting officers on the expenditure. Deputy Howlin wondered whether £2.5 million is too much. As this is the first statutory commission with expanded functions dealing with a very complex treaty, it is difficult to gauge precisely the amount of funding required. I have no doubt the commission will use the funds wisely and prudently and if it succeeds in not spending all the £2.5 million, so be it. Like all public sector Estimates, it is not imperative that the total sum is expended.

Deputy Howlin expressed concern at the wide discretion the commission will have. While the commission will have wide discretion on how it implements its mandate, it will be bound by the rules and procedures of the public service. The members of the commission will be fully aware of the norms involved. We cannot have it every way. The commission is given discretion to decide not what its functions are but how to implement what will be a difficult task. The range of options open to it is not very wide because the commission will normally work within a limited timeframe. It must be allowed flexibility. If the Oireachtas decides to enact the Bill, it should have confidence that the persons proposed as members of the commission will carry out their duties in a competent manner within the norms expected of the public sector.

Deputy O'Keeffe said the Bill does no more than put the former ad hoc commission on a statutory basis. If the Deputy reads section 3 he will see that the proposed commission has much broader powers than the single-function ad hoc commissions. The Bill will give certainty to the commission in carrying out its functions in a manner that is fair to all concerned. The Deputy asked why the Bill is necessary. The answer is obvious. It will put the former ad hoc commission on a statutory basis with much broader powers and functions. That is necessary because of the importance of the subject matter involved. Legislation is necessary to amend the broadcasting legislation to enable the commission to carry out its functions. The changes proposed for the appointment of agents by groups follows from a High Court decision. I note most Deputies welcome those aspects of the Bill.

Deputy O'Keeffe made interesting suggestions about funding research, better use of existing structures, the issuing of White Papers and so on. Those matters should be considered but not at the expense of holding up the Bill. The Deputy suggested the Bill could lead to a low turn out at the referendum, but I cannot accept that point. The commission will not be responsible for the turnout on polling day, which is determined by a host of factors. The commission's function is to prepare and disseminate information to the electorate in an understandable format which will lead to a more informed electorate. Whether people decide to exercise their democratic right cannot be laid at the door of the committee.

Deputy O'Keeffe asked about staff and resources for the commission. The Minister informed the House last night that the Government has decided to make £2.5 million available to the commission for its promotional work. The Government has also agreed to the provision of extra staff to the office of the Ombudsman for secretarial work for the commission. Discussions are ongoing at the moment on the provision of extra staff and resources for the commission.

Deputies Dukes and O'Keeffe indicated they will oppose the Bill. They expressed the view that the Government is entitled to campaign for a "yes" vote using public funds notwithstanding the McKenna judgment and that if there is a role for the referendum commission it should be to determine whether the Government is impartial in the expenditure of public funds at a referendum. They envisaged that legislation should provide accordingly, with its constitutionality tested in the courts. I find this line of thinking rather strange. In the period of more than two years since the McKenna judgment it has been generally accepted that the Government may not spend public funds on advocating a result at a referendum to the detriment of those on the other side of the argument. I do not see how the views put forward by the Deputies can be squared with the McKenna judgment. While the judgment acknowledges that the Government may advocate a result at a referendum they make it clear it may not incur expenditure of public funds in doing so.

In his judgment, Mr. Justice Blayney said:

The Government has not held the scales equally between those who support and those who oppose the amendment. It has thrown its weight behind those who support it.

Mr. Justice O'Flaherty, in his judgment, said: ". it is impermissible for the Government to spend public money in the course of a referendum campaign to benefit one side rather than the other". Those extracts from the judgment make it clear the Government cannot spend public funds in advocating a result at a referendum. It is acknowledged in the judgment that the incidental use of Civil Service facilities do not come within the ambit of the judgment.

I agree with Deputy Howlin's summing up of the available options resulting from the McKenna judgment, which are to overturn the McKenna judgment by way of a constitutional amendment, accept the judgment and legislate for an arrangement under which information is made available, as in the Bill, or do nothing. In bringing forward this Bill the Government has chosen the second option identified by Deputy Howlin.

Deputy Howlin suggested that of the three ad hoc commissions established at previous referenda, the experience at the first such referendum, the divorce referendum, was the most satisfactory. I agree with that point. The reason for this was that the statements prepared by that commission were distributed to each household by An Post in the form of a leaflet. Due to time constraints at the bail and Cabinet confidentiality referenda, the commission had no choice but to insert statements in national newspapers in the form of a notice. I accept that the distribution of the statement to each household at the divorce referendum was a more cost effective method as compared with newspaper notices at later referenda.

Deputy O'Keeffe suggested that as part of the process of providing information there should be an obligation on the Government to prepare and publish a White Paper before each referendum. I would have no problem with the idea of a White Paper being published elaborating on a proposal at a referendum — a White Paper has already been published relating to the Amsterdam Treaty. I do not agree, however, there should be a statutory obligation on the Government to publish a White Paper at each referendum. By its nature, a White Paper is a document which is time consuming to prepare. There may be instances where, for example, arising from a court ruling an urgent amendment may be necessary and it would not be practicable to have a White Paper published without unduly delaying the referendum. There is also the question of a fairly simple straightforward amendment, possibly of a technical nature, where a White Paper would not be warranted.

Deputy O'Keeffe was a little contemptuous of the provisions of the Bill providing for an arrangement for authorising interest groups to appoint agents at a referendum. He seemed to suggest that personation agents are unnecessary in modern political circumstances. The Bill provides for the appointment by approved bodies of agents at all processes at a referendum — at the issue and opening of postal ballot papers, in polling stations and at the counting of votes. I remind the House that the provisions of the Bill relating to the appointment of agents are necessary due to a High Court ruling in a case brought by an anti-divorce activist who sought to appoint agents at the divorce referendum. The Minister could not ignore the implications of that judgment and took the opportunity afforded by this Bill to legislate for an appropriate procedure for the appointment of agents by interested bodies.

Deputies Gormley and Gilmore referred to the lack of limits on expenditure. Under existing law, there are no limits on expenditure by bodies or individuals on a referendum campaign. The McKenna judgment held that while the Government may advocate a result at a referendum, it could not use public funds to do so to the detriment of the side that opposed the referendum.

The Bill does not propose to limit expenditure by participants in a referendum campaign. The point made in the McKenna judgment was not that either or both sides were spending too much on the campaign, but that the use by the Government of public funds to fund the campaign to influence voters in favour of a "yes" vote to the detriment of those opposed to the amendment of the Constitution was not permissible.

The Bill does not propose the expenditure of public funds on either side of the campaign, or to allocate public funds to groups campaigning on either side. It is not necessary, under the McKenna judgment, to control spending of either side at the referendum. To do so could result in a limitation on the debate in which interest groups are an integral part. It could also run the risk of a petition being taken against the result of a referendum on the grounds that it was an interference with the conduct of the referendum. A limitation on expenditure could also have constitutional implications for freedom of speech.

The objective of the Bill is to ensure that the information which is fair to all interests concerned is made available to the electorate. This includes a statement of the points for and against the proposal the subject of the referendum. The Bill also confers on the Commission the functions of fostering and promoting and, where appropriate, facilitating debate or discussion on the subject matter of the referendum.

Question put.
The Dáil divided: Tá, 71; Níl, 44.

  • Ahern, Bertie.
  • Ahern, Dermot.
  • Ahern, Michael.
  • Ahern, Noel.
  • Ardagh, Seán.
  • Aylward, Liam.
  • Brady, Johnny.
  • Brady, Martin.
  • Brennan, Matt.
  • Brennan, Séamus.
  • Briscoe, Ben.
  • Browne, John (Wexford).
  • Byrne, Hugh.
  • Callely, Ivor.
  • Carey, Pat.
  • Collins, Michael.
  • Cooper-Flynn, Beverley.
  • Coughlan, Mary.
  • Cowen, Brian.
  • Daly, Brendan.
  • de Valera, Síle.
  • Dempsey, Noel.
  • Dennehy, John.
  • Doherty, Seán.
  • Fahey, Frank.
  • Fleming, Seán.
  • Flood, Chris.
  • Foley, Denis.
  • Fox, Mildred.
  • Gormley, John.
  • Gregory, Tony.
  • Hanafin, Mary.
  • Haughey, Seán.
  • Healy-Rae, Jackie.
  • Jacob, Joe.
  • Keaveney, Cecilia.
  • Kelleher, Billy.
  • Kenneally, Brendan.
  • Kirk, Séamus.
  • Kitt, Michael.
  • Kitt, Tom.
  • Lawlor, Liam.
  • Lenihan, Brian.
  • Lenihan, Conor.
  • Martin, Micheál.
  • McCreevy, Charlie.
  • McDaid, James.
  • McGennis, Marian.
  • McGuinness, John.
  • Moffatt, Thomas.
  • Molloy, Robert.
  • Moloney, John.
  • Moynihan, Donal.
  • Moynihan, Michael.
  • Ó Caoláin, Caoimhghín.
  • Ó Cuív, Éamon.
  • O'Dea, Willie.
  • O'Donoghue, John.
  • O'Keeffe, Batt.
  • O'Keeffe, Ned.
  • O'Malley, Desmond.
  • O'Rourke, Mary.
  • Power, Seán.
  • Ryan, Eoin.
  • Smith, Michael.
  • Wade, Eddie.
  • Wallace, Dan.
  • Wallace, Mary.
  • Walsh, Joe.
  • Wright, G.V


  • Barnes, Monica.
  • Belton, Louis.
  • Bradford, Paul.
  • Browne, John (Carlow-Kilkenny).
  • Bruton, John.
  • Bruton, Richard.
  • Burke, Ulick.
  • Clune, Deirdre.
  • Cosgrave, Michael.
  • Coveney, Hugh.
  • Crawford, Seymour.
  • Creed, Michael.
  • Hogan, Philip.
  • Kenny, Enda.
  • McCormack, Pádraic.
  • McGinley, Dinny.
  • McGrath, Paul.
  • McManus, Liz.
  • Mitchell, Jim.
  • Mitchell, Olivia.
  • Neville, Dan.
  • Noonan, Michael.
  • Currie, Austin.
  • D'Arcy, Michael.
  • De Rossa, Proinsias.
  • Deasy, Austin.
  • Deenihan, Jimmy.
  • Durkan, Bernard.
  • Finucane, Michael.
  • Fitzgerald, Frances.
  • Flanagan, Charles.
  • Gilmore, Éamon.
  • Hayes, Brian.
  • Higgins, Jim.
  • O'Keeffe, Jim.
  • Owen, Nora.
  • Perry, John.
  • Rabbitte, Pat.
  • Ring, Michael.
  • Shatter, Alan.
  • Sheehan, Patrick.
  • Stanton, David.
  • Timmins, Billy.
  • Yates, Ivan.
Tellers: Tá, Deputies S. Brennan and Power; Níl, Deputies Sheehan and Rabbitte.
Question declared carried.