Consideration of the Report and Final Stages must be concluded by 1.30 p.m.
Referendum Bill, 1998: Report and Final Stage.
I move amendment No. 1:
In page 3, between lines 24 and 25, to insert the following:
"‘notice' means ‘notice in writing;'".
This is a technical amendment which was tabled on the basis that we had half an hour to debate these matters. I wanted to ensure that further amendments which I tabled would be taken and I assumed it would be linked to those amendments. However, I understand it is to be taken on its own. I will not press the amendment, given its technical nature and the other very important amendments with which I wish to deal, if the Minister assures me that it is unnecessary.
I assure the Deputy that the amendment is unnecessary. It is clear from the use of the word "notice" in both sections that such notice must be in writing.
Amendment, by leave, withdrawn.
Amendment No. 2 is out of order as it involves a potential charge on the Revenue. I call the Minister to move amendment No. 3.
I am surprised by the Chair's ruling. It is clear that the payments referred to are already provided for——
The issue may not be debated.
The amendment does not involve a charge on the Exchequer but the disbursement of funds which are already provided under section 13. I ask you to reconsider that question because there is no extra charge involved. It is purely a method of distribution.
Amendment No. 2 involves a potential charge on the Revenue and it is out of order. I ask the Minister to move amendment No. 3. Amendments Nos. 4 and 5 are related and amendment No. 6 is an alternative to No. 5. It is proposed to take Nos. 3, 4, 5 and 6 together, by agreement.
I move amendment No. 3:
In page 7, line 52, after "specify" to insert "and shall include the address in the State of the body concerned".
Amendments Nos. 4 and 6 tabled by Deputy Howlin are identical to amendments that were withdrawn on Committee Stage and I indicated at that time I would consider them before Report Stage. As Deputies are aware, the amendments provide that a body which applies for a declaration must be an approved body, that it should specify in the application an address in the State at which a notice may be served, that any notice sent to the body at the address by ordinary prepaid post would be deemed to be served for the purposes of the Act on the day in which the notice ought to have been served in the ordinary course of post, and that a notice of the commission's decision on an application for a declaration as an approved body would be published in Iris Oifigiúil in addition to being notified directly to the body concerned.
I considered Deputy Howlin's amendments Nos. 4 and 6 and was disposed to examining their merits. I do not have any difficulty with the general principle of the matters covered in the amendments but for reasons I will outline I have tabled amendments Nos. 3 and 5 to meet the principle and the spirit of Deputy Howlin's amendments and to give effect to those particular matters.
In relation to amendment No. 4, I do not have any problem with including a requirement on a body which applies for a declaration to furnish an address in the State. Amendment No. 3 in my name provides for the insertion of such a requirement in subsection (2) of section 7 which is probably the more appropriate place in which to insert that particular stipulation.
The advice available to me in relation to the other segment of amendment No. 4, that any notice sent to the body at that address by prepaid post will be deemed to be served on the body on the day on which it ought to have been received in the ordinary course of post, is already covered in the 1937 Interpretation Act. Section 18 of that Act makes a general provision relating to service of documents by post and largely covers the related matters provided for in amendment No. 4.
Amendment No. 5 in my name provides for a redraft of subsection (5) of section 7 and includes provision for the option to deliver such notices by post. That would bring the provision within the scope of section 18 of the l937 Act and, on that basis, I ask Deputy Howlin not to press his amendment No. 4. Amendment No. 5 in my name, which relates to publication of decisions of the commission in Iris Oifigiúil, incorporates the substance of amendment No. 6, and I ask Deputy Howlin to withdraw his amendment.
I accept the spirit of both Deputy Howlin's amendments and I am putting forward amendments that will meet all of the criteria he outlined on Committee Stage.
I thank the Minister for accepting two-thirds of the proposals I put forward on Committee Stage. The procedures are better, more clear and certainly more public as they will be published in Iris Oifigiúil. There will be no secret between the applicant for recognition under the section and the determinants but, for the avoidance of doubt, I would prefer the form of words I use in my amendment No. 4 because people who wish to apply, under section 7, for a declaration that a body is approved for the purposes of a referendum will read the section in the Referendum Act to see the procedures involved. My amendment loses nothing and adds a great deal if there is a comprehensive statement of the procedures involved. It will avoid any frustration, doubt or adverse publicity if the steps are as clearly stated as we can make them. No doubt a good lawyer will say that the section now provides for notices to be served by post and that section 18 of the Interpretation Act states there is an assumption that once notification is sent by post, it is presumed to have arrived and that all is well. However, most people reading legislation take it at face value, as I did in relation to this Bill. I was not clear that the Interpretation Act stated what the Minister has now informed the House. My amendment states the principles in great clarity. I know from previous referenda when an application was made to the then Minister for the right to appoint agents at polling stations, people relied on the basic law put before them.
I welcome the openness of the Minister to accept the principle in my amendment and I fully understand the technical advice given to him not to accept the form of words put forward. The innate feeling of the officials is to amend an Opposition amendment because they cannot have their words put into the Act as that might be a reflection on them. Notwithstanding the excellence of the officials involved in the drafting of this amendment, it might be possible that a mere Opposition spokesman could come up with a form of words that would improve the Bill.
I hope the Minister will reflect again on amendment No. 4. In cases where bodies, which have a great sense of their own importance and the importance of a referendum, apply for a declaration that the body is approved for the purposes of a referendum, the procedure should be as clear as we can make it. The acceptance of amendment No. 4 would make it much more clear.
Amendment No. 6 in my name is clearly redundant now because the Minister has subsumed that into his amendment No. 5. I will happily withdraw my amendment when it is reached. I again ask the Minister to consider using amendment No. 4 in my name rather than pressing that part of his own amendment which incorporates two-thirds of the intention of mine.
Before the Minister replies, I remind Members that there has been a slight change in Standing Orders. On Report Stage Members may contribute a second time. The second contribution can be no more than two minutes and then the proposer of the motion in effect can speak a third time.
I accept Deputy Howlin's point that this and all legislation should be as simple and transparent as possible for the ordinary lay person who must consult it from time to time. I am sure the Deputy will agree, however, that the legislation must be drafted in such a way that it is legally sound and that we avoid any form of doubt. I have no difficulty accepting the principle of the two amendments, which have been considered by the draftsman. The Deputy can take full credit for putting them forward, but the two excellent officials beside me would not engage in a cosmetic exercise. The amendments are legally sound. In deference to what the Deputy said, particularly about amendment No. 4, I will ask the commission to clarify the full procedure relating to application forms so that a clear and transparent message will go out to applicants. On that basis I ask the Deputy to withdraw his amendment.
Amendment agreed to.
Amendment No. 4 not moved.
I move amendment No. 5:
In page 8, to delete lines 17 to 21 and substitute the following:
"(5) Upon the determination of an application under this section, the Commission shall as soon as may be—
(a) by notice in writing (which may be sent by post) inform the body concerned of the determination and, if it is a refusal to make a declaration under this section, the notice shall include a statement of the reasons for the refusal, and
(b) publish a notice in Iris Oifigiúil of the result of the determination.”.
amendment agreed to.
Amendment No. 6 not moved.
I move amendment No. 7:
In page 8, lines 37 and 38, to delete "and having a membership of not less than 500".
This amendment proposes to delete the requirement in subsection (9) that the approved bodies should have a membership of not less than 500. There is a requirement in that subsection that the organisation should be either a body corporate or an unincorporated body which is established in the State and governed by a constitution, a memorandum of association and such other document or written rules. There is provision that the body must be an existing bona fide body.
My difficulty relates to the requirement that the body must have a membership of 500. That will rule out the possibility of being an approved body for many organisations which have an interest in referenda. For example, the late Raymond Crotty who made a remarkable contribution to referenda and referendum law, particularly relating to the European Union, was probably never a member of an organisation that had more than 500 members. Certainly many of the organisations in which he was involved were small.
In referenda held here in recent times, I doubt if many of the bodies which took an active part in those campaigns had a paid up membership of 500 or more. Many of the organisations involved in the larger referenda on abortion, divorce and so on were small organisations and they mounted very effective campaigns. In referenda that were not as high pitched, such as the bail referendum, I doubt if many of the civil liberties groups, which mounted effective campaigns of opposition with great passion and conviction, had a membership of 500 or more.
In referenda that might be held in the future, which may not be constitutional referenda but may involve legislation, it is possible that many of the organisations that will take part in those referenda campaigns will not have a membership of more than 500. For example, legislation which the Government might decide to put to referendum might impact on a professional body, and there are many professional bodies and interest groups which, while they may draw support from a wide audience, may not have a membership of more than 500. It is unwise to set down a membership requirement because difficulties will arise in the future.
It is wrong to draw a distinction between a political party and an approved body that is not a political party. There is no obligation under paragraph (b) that a political party must have a membership of 500 or more, although it is more likely political parties would have a membership in excess of that figure than organisations that often come together for the purposes of campaigning in a referendum. As a result of this provision a bona fide body with a genuine interest in a referendum may be excluded from being an approved body simply because it does not meet the membership requirement. Alternatively, it may give rise to artificial boosting of membership in the run-up to a referendum, signing up people to ensure the number reaches 500.
That is an unwise provision. I appreciate the Minister's intention that the approved body should be a genuine bona fide body, but the provisions that the body must be governed by a constitution, registered in the State and so on, cater for that. It is a matter for the commission to exercise judgment as to whether the body is a bona fide one, but the membership requirement is unwise and should be withdrawn. I ask the Minister to accept the amendment.
I thank Deputy Gilmore for his proposal. If, however, I accept the amendment, a body applying for a declaration would not have to establish that it has members. Under that arrangement an individual or a small group of individuals who could establish a bona fide interest in the subject matter of a referendum and who meet the requirements about being governed by a constitution, memorandum of association and so on would have a good case for being declared an approved body.
It is important to note that under this Bill the sole function of an approved body is to appoint agents at a referendum. Approved bodies will be entitled to appoint personation agents at each polling station and to appoint agents at count centres in each constituency. Because of accommodation constraints, appointing authorities are restricted in the number of agents they may appoint.
Is it in order for the Minister to put forward his own proposal for a fewer number than 500 at this stage?
If Members agree to that, it would be possible.
Perhaps the Minister would consider that.
Acting Chairman
Perhaps the Minister would take Deputy Howlin's sentiments on board.
I do not accept the amendment as it stands. I take Deputy Howlin's point but I also make the general point that it is important to stipulate a particular number for the reasons I have already outlined. Referenda are national questions about which people have particular views. The requirement of 500 is quite modest but in a spirit of partnership I would be willing to lower it to 300.
Mr. Hayes
The Minister is bargaining downwards.
I am not bargaining. That is as low as I would be prepared to go.
The figure of 300 is certainly an improvement.
Acting Chairman
Can I take it that the Minister would be prepared to table an amendment amending Deputy Gilmore's amendment to the effect that the body would have a membership of not less than 300?
Yes.
Acting Chairman
Is that acceptable to Deputy Gilmore?
My professional instinct is to start bargaining with the Minister but he has made it clear that 300 is his bottom line and I accept that.
Acting Chairman
The amended amendment would, therefore, read:
In page 8, line 38, to delete "500" and substitute "300".
I move amendment No. 1 to amendment No. 7:
In page 8, line 38, to delete "500" and substitute "300".
Amendment agreed to.
Amendment No. 7, as amended, agreed to.
Amendment No. 8 not moved.
Question proposed: "That the Bill do now pass."
The Minister will be aware that I tabled quite a number of amendments on Committee Stage which would have entailed redrafting the Bill in such a way as to create a comprehensive electoral commission with a number of functions. I will not reiterate the arguments I made at that time. However, the fact I did not table the amendments again on Report Stage is not an indication that I am no longer committed to the notion of having a comprehensive electoral Bill which would establish one commission to deal with the various functions currently assigned to four separate commissions.
The impact of passing this legislation is that it will establish yet a further commission which will have virtually the same membership as a number of other commissions with different functions and titles. That is not good policy. I gleaned that the Minister is agreeable to my point of view and that, in due course, he might introduce a Consolidation Bill. I hope the Minister will declare his own intentions and those of the Government in this matter. As it stands, I have no difficulty with the Bill doing the job it sets out to do but I feel strongly that it duplicates functions. I do not believe that every function arising in the electoral area requires the establishment of a separate board or commission. This is an issue which should be addressed in the medium term. It should not remain an aspirational notion which will remain on the long finger.
Mr. Hayes
Fine Gael opposed this Bill on Second and Committee Stages and continues to do so. It is our view that the Bill is ill conceived and fundamentally misunderstands the implications of the McKenna judgment. While we understand that the Minister must proceed with his proposal and, acknowledging that the amendments to the Bill are good, we do not support the Bill. We will continue to oppose it not only on the grounds of the McKenna judgment but because of the duplication to which Deputy Howlin referred. The Bill is ill considered at this time.
I do not want to repeat the arguments made on Second and Committee Stages about the basic nature of the Bill but I agree with Deputy Hayes that the Bill is not the way to legislate for the McKenna judgment. I fear that the arrangement being put in place by the Bill will result in referenda campaigns which are anodyne and artificial and which, unfortunately, will hinder rather than help the expression of views with the passion and strength necessary in a referendum campaign.
We are in the final moments of this debate on the Bill and, inevitably, the Government will have sufficient numbers to ensure its passage through the House. However, this is an area which should be re-examined at some future stage. We should consider how this mechanism will work in practice and I ask the Minister to express a willingness to examine its practice to see how it is working. If it produces the kind of artificiality in referenda campaigns which I suspect it will, we could perhaps revisit the issue at some future date, perhaps in the context of the establishment of a wider commission as suggested by Deputy Howlin. There should be a willingness to return to this House at a future date with this legislation and re-examine it in the light of experience.
I thank those who participated in the various stages of the debate. Deputies were generally constructive and courteous, notwithstanding their apparent total opposition to the concept of the Bill. I do not believe I possess the totality of wisdom and knowledge in this area and I willingly accept Members' comments on the Bill which represents an advance on the situation with which Deputy Howlin had to deal when he was Minister for the Environment. He had to create something out of nothing when he established the ad hoc commissions which carried out their duties well and to the best of their ability but we must move on from that. There were flaws in that and we must move on. Deputy Gilmore's comments regarding the most recent referendum are true. However, he fears the information from the commission will be anodyne and artificial and that the real debate will not even get started. I do not anticipate that happening, although I could be proved wrong. What will make the debate on the Amsterdam Treaty anodyne and artificial is limited imagination on the part of the commission and those it employs to convey its message.
The Bill is not prescriptive with regard to the commission. It establishes the commission and allows it full rein with a budget of £2.5 million to make the campaign as interesting as possible. Members of the House also have a duty, outside the remit of the commission, to try to make the referendum debate equally interesting. By giving the commission money and power the Oireachtas is signalling to it that the campaign should be as imaginative as possible. I hope the commission will take up that challenge.
I have an open mind with regard to Deputy Howlin's proposal. It is probably the direction we should take. I told the Committee on the Environment and Local Government that it should consider the issue further on behalf of the House. The only caveat I attached is that it should probably liaise with the committee on the Constitution and decide which committee should discuss the proposal and bring forward proposals. There is much merit in the proposal to establish an electoral commission and in having an independent body to deal with these matters. The chairpersons of the Committee on the Environment and Local Government and the committee on the Constitution should meet and decide which committee should discuss the proposal further. If I get a report from the relevant committee I will act on it.
That will have to be sorted out after the low turnout in the referendum on the Amsterdam Treaty. The Minister did not take account of the views of the committee on the Constitution in the context of this Bill.
I had not received the views of that committee when I started drafting the Bill.
Exactly. The Minister rushed the Bill without reference to them.
However, I gave considerable thought to this matter when I was in Opposition, a more leisurely time——
There is nothing leisurely about Opposition.
Deputy O'Keeffe is wrong. If there is a low turnout in the referendum it will not be the fault of this legislation——
The Minister must be joking.
——and it will be up to Members to examine their consciences.
I thank Deputies for their co-operation in getting the legislation through the House so quickly. It is an important Bill, although not the final one, that will be required in this area. It will result in a more informed electorate and a better debate on the proposals in the referendum. Despite Deputy O'Keeffe's gloomy view, the provision of objective information rather than partisan propaganda will encourage greater numbers to turn out on the day.
I thank the Office of the Ceann Comhairle, the Bills Office and my officials for their assistance with this legislation.
Question put.
The House divided: Tá, 67; Níl, 42.
Tá
|
Ahern, Dermot.Ahern, Michael.Ahern, Noel.Ardagh, Seán.Aylward, Liam.Blaney, Harry.Brady, Johnny.Brady, Martin.Brennan, Matt.Brennan, Séamus.Briscoe, Ben.Byrne, Hugh.Callely, Ivor.Carey, Pat.Collins, Michael.Cooper-Flynn, Beverley.Coughlan, Mary.Cowen, Brian. Killeen, Tony.Kirk, Séamus.Kitt, Michael.Kitt, Tom.Lawlor, Liam.Lenihan, Brian.Lenihan, Conor.Martin, Micheál.McCreevy, Charlie.McGennis, Marian.McGuinness, John.Moffatt, Thomas.Molloy, Robert.Moynihan, Donal.Moynihan, Michael. |
Cullen, Martin.Daly, Brendan.de Valera, Síle.Dempsey, Noel.Dennehy, John.Doherty, Seán.Ellis, John.Fleming, Seán.Flood, Chris.Foley, Denis.Fox, Mildred.Hanafin, Mary.Haughey, Seán.Healy-Rae, Jackie.Jacob, Joe.Keaveney, Cecilia.Kelleher, Billy.Kenneally, Brendan. Ó Cuív, Éamon.O'Donoghue, John.O'Flynn, Noel.O'Hanlon, Rory.O'Keeffe, Batt.O'Keeffe, Ned.O'Rourke, Mary.Power, Seán.Roche, Dick.Smith, Brendan.Smith, Michael.Treacy, Noel.Wallace, Dan.Wallace, Mary.Woods, Michael.Wright, G.V. |
Níl
|
Barnes, Monica.Barrett, Seán.Belton, Louis.Bradford, Paul.Browne, John (Carlow-Kilkenny).Carey, Donal.Clune, Deirdre.Connaughton, Paul.Crawford, Seymour.Creed, Michael.Currie, Austin.D'Arcy, Michael.De Rossa, Proinsias.Deasy, Austin.Deenihan, Jimmy.Durkan, Bernard.Enright, Thomas.Farrelly, John.Fitzgerald, Frances.Flanagan, Charles.Gilmore, Éamon. |
Hayes, Brian.Higgins, Jim.Kenny, Enda.Lowry, Michael.McCormack, Pádraic.McGahon, Brendan.McGinley, Dinny.McGrath, Paul.McManus, Liz.Mitchell, Gay.Mitchell, Jim.Mitchell, Olivia.Naughten, Denis.Neville, Dan.O'Keeffe, Jim.Perry, John.Rabbitte, Pat.Ring, Michael.Shortall, Róisín.Stanton, David.Timmins, Billy. |
Tellers: Tá, Deputies S. Brennan and Power; Níl, Deputies Barrett and Gilmore.
Question declared carried.