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.