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Dáil Éireann debate -
Friday, 14 Dec 2001

Vol. 546 No. 6

Referendum Bill, 2001: Second Stage.

I move: "That the Bill be now read a Second Time."

The Sixth Progress Report by The All-Party Oireachtas Committee on the Constitution on the referendum made a number of recommendations on the provision of information at referenda. Principal among these were proposals to amend the functions of a Referendum Commission including removing the role of presenting the arguments for and against a proposal, providing a new power to allocate finance equally among pro and anti sides and a recommendation to provide additional functions to promote voter participation. These and other matters have been considered by the Government which have decided to bring forward this short Bill to implement a number of the recommendations in the all-party report.

Before I deal with the provisions of the Bill, I will make a number of general points regarding the conduct of referenda. Referenda are important. They provide a mechanism to change the fundamental law of the State and the electorate, as guardians of that law, has a crucial role to play. That any amendment to the Constitution requires a referendum offers the electorate the opportunity to express its opinion on political and constitutional issues.

Since 1937, the Constitution has been amended following a referendum on 19 different proposals. Six proposals have been rejected, most recently regarding the Treaty of Nice, demonstrating that the electorate can be discerning on issues put before it. Apathy, low turn-out and an under-informed electorate, perhaps leading to a large number of spoilt votes, serve only to devalue the primacy of the Constitution. The arrangements for referenda must provide for the information needs of voters and, at the same time, encourage voter participation to the greatest extent possible.

There have been changes in the conduct of referendum campaigns over the years, most noticeably in terms of the tendency for cross-party support for proposals and an increase in interest group participation. At a statutory level, there have also been developments. In terms of the statutory provision of information, the Referendum Act, 1994, provides: that copies of the Constitution amendment Bill may be inspected or obtained, free of charge, at any post office; a statement, prescribed by resolution of each House of the Oireachtas, is printed on polling cards, sent to every elector, and displayed on posters at polling stations; the order of the Minister appointing polling day must be published in Iris Oifigiúil; public notice must be given by the local returning officer for each constituency stating the date and hours of polling and indicating that copies of the Constitution amendment Bill may be inspected or obtained, free, at any post office; and a polling card must be sent to each elector, other than postal and special voters, indicating the elector's number on the register, the location of the polling station and the date and hours of voting.

The provisions under the 1994 Act are, in a sense, the formal statutory requirements regarding informing the public about the polling day and hours of polling, together with the terms of the proposed amendment. They could probably be best characterised as basic information provisions which, although necessary, are unlikely to impact decisively in terms of informing the public.

The provision of information was developed at the divorce, bail and Cabinet confidentiality referenda. A number of ad hoc commissions, comprised of the Ombudsman, the Clerk of the Dáil and the Clerk of the Seanad, were established to oversee the preparation of statements setting out the arguments for and against the proposal at each referendum.

Against the legal backdrop of the McKenna judgments the Referendum Act, 1998, was enacted. It was designed to put the ad hoc commissions on a statutory footing and to further advance the issue of providing information to the electorate. Specifically, the Act provided for the establishment of an independent statutory Referendum Commission whose primary role is to explain the subject matter of the referendum to the population at large, as simply and effectively as possible, while ensuring that the arguments of those against the proposed amendment and those in favour are put forward in a way that is fair to all interests concerned.

The question that needs to be addressed following the developments that I have outlined is whether the operation of referendum information campaigns, especially informing the electorate of the proposal and motivating them to express their opinion at the ballot box, has improved. The answer, or at least part of it, is that despite the endeavours of ad hoc commissions and the Referendum Commission, turnout and participation have been disappointing and there is a consensus that the manner in which referendum information campaigns are conducted is unsatisfactory.

Clearly, there is no perfect solution to this problem. During the debate on the Referendum Act, 1998 the point was made that each change was an attempt to improve matters and if the changes were found wanting, then the issue would be revisited. Different types of solutions are pro vided for internationally, but none are perfect. In Ireland we must have regard to the Constitution and Supreme Court judgments in considering possible solutions.

The Referendum Commission, in its report on the referenda on the Amsterdam Treaty and Northern Ireland Agreement, referred to the difficulty in getting the message across to the electorate as the following passage from the report indicates:

There was a clear pattern which suggested that the average person has become quite lazy when it means reading or helping oneself to information and there is a high level of reliance on media broadcasts rather than the written word. The effect of TV and radio coverage made them at least feel informed and exposed them to the issues. Those who did take the trouble to read the written material scored it highly in terms of balance and fairness (62%) and for its usefulness in decision making (53%). It was also felt to be easy to read and understand and gave an unbiased view of the issues.

I wish to state on behalf of the Government that the amendments proposed in the Bill are not a reflection on the commission members or their staff, who have carried out their functions in a satisfactory manner for the six referenda for which they have been established. This is especially true when one has regard to the complexity of the referendum proposals relating to the EU and the subject matter of the other proposals where engaging the electorate was always likely to be difficult.

In summary, the impact of the statutory provision of information under the Referendum Act, 1994, is small. The McKenna judgment has narrowed the parameters within which Government can promote, with public funds, its views on a proposal. The rationale of the Coughlan judgment is that RTE breaches its statutory duty of objectivity and impartiality if it allows political parties and other bodies, which support a particular referendum outcome, a considerable advantage in the broadcasting of partisan material. The format of information provision via the work of the ad hoc commissions and the Referendum Commission has been criticised as anodyne and ineffective notwithstanding the valuable work undertaken by these bodies in accordance with their non-statutory and statutory briefs. The Bill before the House addresses a number of these issues and I will now outline the changes proposed.

The Bill proposes to amend the Referendum Act, 1998, and contains two sections. Section 2 is a standard provision dealing with the Short Title and construction while section 1 provides for the substantive change.

Section 1(a) replaces section 3(1) of the Referendum Act, 1998, which sets out the functions of a Referendum Commission. This section removes the current functions available to the Referendum Commission to prepare statements setting out the arguments for and against a proposal and to foster and promote debate. It also provides a new function of promoting awareness of the referendum, including encouraging the electorate to vote.

One of the aspects of the work of the Referendum Commission which has been subject to most criticism has been its function to present arguments for and against a proposal. This provision was drafted as a result of the McKenna judgment and sought to bring equity of approach in terms of the balanced provision of information. However, there is general agreement that the provision has not been a total success. The alignment of arguments for and against a proposal in an almost sterilised format has not encouraged debate and can result in seemingly equal weightings been given to alternative arguments which do not merit equivalent comparison, in any rational assessment.

The Oireachtas All-Party Committee on the Constitution refers to this in its report in the following terms:

The committee agrees that the commission should provide information but does not believe that it should have any direct responsibility for putting the arguments for and against a referendum proposal. It is understandable that such a function should have been given to the commission in response to the McKenna judgment. However, the political needs of a referendum cannot be met by setting before the electorate two lists of arguments, all of them detached from the contexts that give them sense and weight, in an effort to be even-handed. That leads to leaden rather than lively presentation. It also leads to confusion because while the voter must arrive at a summative judgment, he or she has no means of measuring the weight to be given to each of the arguments presented in this way. The engagement of the commission directly in the campaign tends to weaken the sense that the political parties and the interest groups should be the protagonists in the debate.

It has been decided, therefore, to remove this function from future commissions, who will nonetheless retain their powers to prepare statements containing a general explanation of the subject matter of the proposal and the power to publish and distribute such information as they see fit.

The second amendment provides for a new power for referendum commissions to promote public awareness of the referendum and to encourage as many people as possible to vote. It is difficult to examine the problem of referendum information and turnout in isolation from the wider problem of voter turnout and indifference towards the political system. Political participation generally has been declining and the downturn in interest in referendums cannot be seen separately from the more general trend. An independent body such as a referendum commission is ideally placed to undertake these additional functions. The format of the information campaigns will be a matter for each commission, which will continue to have all the powers as it considers necessary for the performance of its functions under the Referendum Act, 1998.

The amendments at section 1(b) and (c) are consequential on the change of functions proposed in paragraph (a). Paragraph (b) repeals section 6 of the Referendum Act, 1998, which provides that a person may make a submission to the commission about the proposal of the subject of the referendum. This section is directly related to the function of preparing a statement of arguments for and against the proposal in the existing paragraph (b) of subsection (1) and it will not be required following the earlier amendment. Paragraph (c) makes consequential amendments to section 8 of the 1998 Act, which concerns the publication of notices by a referendum commission. Paragraph (a) of the existing section 8 refers to notices informing people that they can make submissions to a commission. The other two amendments are consequential.

I refer to the proposal in the Oireachtas All-Party Committee report recommending the allocation of funds to campaign groups promoting both sides during a referendum. The Government has decided not to proceed with the recommendation at this stage. It is a radical proposal which has been raised before but which requires careful examination in the context of the relevant Supreme Court judgments and the difficulties with the practical application of such a scheme in the context of those judgments. These difficulties have been acknowledged by the 1998 Referendum Commission in their report on the Amsterdam and Northern Ireland referendums. In that report the commission commented on the introduction of such a scheme as follows:

From its experience, the commission would see considerable difficulties in ensuring compliance with the McKenna [judgment] and avoiding litigation.

Many matters need to be addressed. How should the funds be divided? Should both sides be funded equally or at the discretion of the commission based on statutory criteria? What would be the information role of the referendum commission? Should a commission with a function of funding both sides be activated in all referendums? What conditions should be attached to such funding without interfering with a group's advocacy strategy? Would political parties be able to avail of finance? Could an individual get funding? How large would a group have to be to receive funding? How is the taxpayers' money to be accounted for? Are there different levels of information and public debate requirements?

We might ask even more fundamental questions. Would the electorate be any the wiser after being deluged with conflicting information? Would more information prove to be a greater turn-off for the electorate? Would the taxpayer be in favour of the use of their money by the Government, political parties, pressure groups and individuals to persuade them to vote yes or no? I raise these questions not to be obstructive, but simply to highlight some of the complexities that would require careful consideration if such a scheme was to be adopted. I note also that the Oireachtas All-Party Committee on the Constitution had difficulty with this matter. A minority of the committee took the view that funds should be divided equally between the two sides as a matter of principle, while a majority were of the view that the division should be on the basis of what was equitable rather than what was equal.

In the final analysis, the quality of the judgment that the electorate expresses at a referendum is, among other things, a function of the quality of the information available to them and this Bill will allow referendum commissions to focus on the provision of information in an objective way rather than an approach based on arguments for and against, which has proved to be problematic. The Bill will also seek to encourage awareness and political participation by providing future referendum commissions with a specific remit in this area. I commend the Bill to the House.

I wish to share my time with Deputy Shatter.

Before I deal with the Bill I want to express, on behalf of Fine Gael and the Irish people, my absolute outrage at the affront that this Bill represents to the Constitution and the way changes to the Constitution are dealt with. I do not know how the Minister can justify introducing a Bill at 24 hours notice and passing it through both Houses of the Oireachtas on the last day of the session. Many Members of this House do not even know about this Bill as it only appeared on the Order Paper yesterday. One must be suspicious about the Government's motives for doing this at the last moment, on the last day before the Christmas holidays. We are not dealing with a national emergency. The difficulties surrounding the McKenna judgment and our method of complying with that judgment are well known and have been for some time. Are we having a referendum at the beginning of January? Why is this suddenly so urgent that it has not been subject to the debate that is required?

The Constitution comprises our basic fundamental laws, which are the building blocks of all our other laws. They inform our values and dictate the kind of society we have. How we promote, manage and operate a referendum to amend those basic laws is absolutely critical to the outcome. Any change, addition or deletion can, and usually does, impact across a whole range of laws and therefore has huge ramifications for Government. In some cases it can alter the whole direction of social change. Referendums are critically important and the only opportunity available to the public to change these basic laws directly and fundamentally. It is crucial that referendums are carried out in a fair and legal way which gives honest and accurate information about the purpose and impact of any change proposed.

The Referendum Act, 1998, gave for the first time a statutory basis to a referendum commission which hitherto had operated on an ad hoc basis. The Act gave functions to the commission which sought to ensure that the referendum procedure in future was carried out in accordance with the McKenna judgment. There were many ways to do this and many would agree that the way that was chosen was not necessarily the right one. At the time of the last referendum, on the Nice Treaty, the way in which the commission was obliged to manage and portray the arguments was little short of farcical. Far from clarifying the issue, it served in many ways merely to confuse the public. I do not believe that the low turnout was entirely due to voter apathy. It was mostly due to bewilderment – how could it be otherwise when voters were treated every night to diametrically opposed views which clearly came from the same source?

Giving the pros and cons of a proposition had some appeal as a fair and unbiased way of communicating information and of advocating both points of view equally. However, it was neither in the case of the Nice Treaty. Whatever about equal advocacy, it did not communicate information satisfactorily.

Not every argument has a counter argument, and if it has, it is sometimes so contrived as to be ludicrous. More importantly, there are many possible constitutional amendments which do not and never will lend themselves either to explanation or advocacy in that particularly argumentative manner.

Several of the amendments arising from EU membership were based on the acceptance of highly complex international treaties and it would have been meaningless, if not impossible, to try to line up a series of arguments for and against. Ironically, the Nice Treaty was not one of the more complex treaties. While it dealt with technical issues such as the weighting of votes, qualified majorities, rotating commissioners and so forth, its underlying intent was to facilitate enlargement. The Amsterdam Treaty was complex and required cross-referencing with other international treaties.

Let us imagine, with horror, how the 25th amendment might have to be portrayed if each and every word, line and clause in the Bill had to be assigned pro and anti arguments. It would not help in the clarification of the issues and might even confuse the public further. It would be hugely divisive to even try to portray it in that way.

I am not sure why this Bill is being rushed through the House but I have my suspicions. If it is to facilitate an early referendum on the 25th amendment, this Bill as proposed presents immediate problems. The main functions of the commission will be to prepare one or more state ments containing a general explanation of the subject matter. Will the Minister tell me how the commission can be expected to do that accurately when there is no agreement, even in this House, as to what is the subject matter of the Bill? Not alone do we not have consensus on the issues, we do no even have consensus on what precisely are the facts of the Bill to go before the people. Pro-life groups are already predicting interpretations other than those intended by the authors of the Bill. How will the commission, in attempting to disseminate information, overcome that conundrum? One can already envisage the commission being brought before the courts in the middle of the campaign because one side or the other will claim it got the facts wrong and is attempting to mislead the public.

In attempting to comply with the McKenna judgment, the Minister, and all of us to some extent, have wrapped ourselves in knots, in some ways unnecessarily. The main constitutional implications of the conduct of referenda deriving from the various judicial decisions that have been made recently were summed up in the sixth progress report of the All-Party Committee on the Constitution. It stated that: the people are the exclusive decision makers; they are entitled to reach their decision free from unauthorised interference by organs of the State; the Government may not spend public money to support only one side of a referendum because that would be contrary to the requirement to fair procedures and is an infringement of the concept of equality; and once a referendum Bill has passed, the Government, the Houses of the Oireachtas and the political parties have no special claim on public funds. If public funds are made available they must be expended equally on pro and anti campaigns. The report continued that in a referendum RTE may not allocate free broadcast time to political parties in such a way that the broadcasts are weighted in favour of one side; and that politicians who think the Constitution should be amended have the right and duty, individually or as members of a political party or of the Government, to attempt to persuade their fellow citizens to adopt the proposed amendment.

In fact the McKenna judgment is quite restricted. It refers only to the use of public money and it is clear on the prohibition of the use of public money only when exclusively used for the promotion of one side of the proposition. The all-party committee called it a purely negative injunction and said that on the face of it it should not present compliance problems. Problems arise from other implications of the various judicial decisions, primarily the positive injunction that politicians who are of the view that the Constitution should be amended have not only a right, but a duty, as individuals or members of a political party or as a Government to attempt to persuade their fellow citizens to adopt a proposed amendment.

This Bill is entirely silent on how we might do that and that really is the nub of the problem. Finance is certainly one aspect of it and the all-party committee made recommendations about the equal dispensing of funds between the pro and anti sides. This Bill has ignored that issue and we have had no debate on it, and now we do not have any opportunity to debate it. Even more important is how either side can communicate their viewpoint in the absence of any meaningful access to the airwaves.

The judgment in the Coughlan case is being totally misinterpreted by the national broadcaster. The judgment was that free broadcast air time should be equally distributed between both sides, not that the normal political debate and the cut and thrust of argument and counter-argument should be entirely prohibited, or be so circumscribed as to be meaningless.

During the last referendum, RTE operated what appeared to be a nonsensical equality of time regime, down to the last second. There were repeated instances of people being cut off mid-sentence. I do not believe that was either the intention of the Supreme Court or the intention of Mr. Coughlan when he brought that case. If brought to its logical conclusion in a case where each side was allocated an hour to put its arguments and one side ran out of arguments after ten minutes the other side would also have to be equally curtailed and this would clearly deprive the public of information.

We all know how much power the media have and its reach in getting in touch with the public. This is the principal way in which the public get their information and I believe it is the principal way in which we form our judgments on issues having heard the arguments offered and debated on both sides. The last referendum showed that the print media, both in the newspapers and the information issued by the Referendum Commission, simply did not have an impact on the public. As the Minister said, it did not even generate a debate. At the end of the day most people were no further enlightened and indeed were more confused in most cases. I am sure that if anybody had either the time or the interest to test the fact that debate is curtailed, by going to court, it would be found unconstitutional to stifle the normal flow of political debate which is how we inform ourselves on all issues. This is particularly crucial when it comes to changing the Constitution. This is another aspect on which the Bill is silent and on which we have had no public debate and now we do not have the time to have it either.

The abolition of the requirement to have the commission argue the pros and cons of any case makes good sense. Most people would agree with it, but it is not necessarily a foregone conclusion that this should also involve removing the right of approved bodies to make submissions to the commission. These concerns could be relayed to the public by means other than the formula used in the last referendum, simply by incorporating them into the information role of the commission.

There has been much political criticism of the McKenna judgment both in this House and in the media. It is not the judgment itself that is causing the problem but the method being used to comply with it. This Government is using the problems we all agree surround the chosen method of compliance to tailor a scenario whereby they can minimise the information to the public in the context of the 25th amendment. In this way the Government hopes to portray the purpose and impact of the abortion Bill as being what they interpret it to be. Why else would they remove one method of compliance in providing information but not replace it with another through funding or by way of facilitating public and media debate? I warn the Minister that if this is the intention – I suspect it is because there is no other explanation for the speed with which this is being put through the House – he is embarking on a very rocky road of attempting to artificially set up a situation which is geared specifically to favour the passing of one particular constitutional amendment. It may suit the Government's purposes on this occasion but there will be future referenda where it will not suit to stifle information, which is what this Bill will do.

It is wrong for the Minister to play with our Constitution in this way. The Constitution belongs to the people and they have the sole right to change it but we in this House have the sole right to initiate proposed changes and we therefore have a responsibility to protect not only the Constitution but the procedures used to amend it in any way and at any time whether it suits us or not. This is a prime responsibility of Parliament and we cannot be expected to deal with it in a two hour debate on the last day of the session with 24 hours notice to prepare for it.

The Fine Gael Party will vote against the Bill. We will not offer amendments because it would be impossible to produce meaningful and thoughtful amendments at 24 hours' notice. More importantly, to even attempt to do so would be to condone and even reinforce the affront this ill-timed Bill poses to the Constitution. We will not be complicit in such an insult to the people and the Constitution. It is too important to us all to treat such changes in our basic and fundamental law in this way. I appeal to the Minister to withdraw the Bill and allow it the consideration it deserves.

It is outrageous in the context of legislation dealing with the manner in which referendums are conducted that a Bill should be published on a Wednesday and the Government should put it through all Stages in this House by guillotine on a Friday. My 20 years of experience as a Member of this House has taught me that when important legislation is rushed through, with the Government expecting the Houses of the Oireachtas to rubber stamp its proposal, it inevitably leads to constitutional challenges and legislative disaster. I predict this Bill will do the same. If the procedure I will propose should not be invoked, it is inevitable that the Bill will, at an early stage, be the subject of a constitutional challenge which will derail the Government's intent to progress the referendum proposal that has been guillotined through the House over the last two weeks.

This whole area, dealing with the provision of information and campaigning by the Government, groups and individuals on referenda, has been the subject of difficult and complex litigation in the courts. On occasion the courts, especially in the McKenna (No. 2) judgment, which has had such a dramatic impact, have found themselves constrained by time in reaching rapid conclusions in proceedings that should have been dealt with in a manner that did not put them under pressure. It was no fault of the courts that they found themselves under pressure, it was a consequence of the manner in which the litigation occurred.

This Bill should be referred by the President to the Supreme Court for consideration pursuant to Article 26 of the Constitution. We should not again find ourselves in a position where the Government orders that a referendum takes place and in the middle of a referendum campaign, both the High Court and the Supreme Court find themselves, at very short notice, within time constraints having to pronounce on the constitutionality or otherwise of legislation or of procedures adopted by the Government. A referral of the Bill by the President to the Supreme Court would have interesting and important consequences. The Supreme Court should, by use of the Article 26 mechanism, be given space and time to consider the constitutional arguments that arise on the Bill. Such a case would also give the Supreme Court an opportunity to further reflect on the McKenna (No. 2) judgment and other judgments that have been delivered which impact on the manner in which referenda can be funded and which constrain the role Governments and public finances can play in ensuring that people are fully informed of what referendum proposals contain and the substantive impact they may have if they are successful.

On 19 November, a former Chief Justice of the Supreme Court, Tom O'Higgins, published an interesting and detailed analysis of the McKenna judgment and why he believed, as a former Chief Justice, that the Supreme Court got it wrong. In his article he referred to the divorce referendum campaign and he stated:

I believe that the existence of this campaign led the judges in the wrong direction and that they lost sight of the true question before them which was whether the promotion of a publicity campaign by the Government was an unjustified interference with the rights of voters. The hearing before the court was necessarily rushed because of the currency of the campaign and the judgments in my view were given too hastily.

Referring to the majority judgment delivered by the members of the court he stated:

In their judgments it seems to me these judges overlooked the fact that the right to vote which they had to consider was the personal right of each qualified voter as laid down in the Constitution. Instead they confused or equated this personal right, exercisable only on polling day, with the right of voters and all citizens to join in a pre-poll campaign, if such were taking place, in which all aspects of the question to be decided on polling day could be discussed and argued.

He went on to state:

If it appears to the Government that the proposed amendment is not fully understood by the generality of voters or that its effect has been misrepresented, I believe it to be the duty of the Government to step into the campaign to correct the position and to do so in the manner considered in McKenna.

He concluded his article by wondering how this matter can come again before the Supreme Court and he suggested this could be done by a referendum Bill coming before this House which might be referred to the Supreme Court for its consideration.

In the case of the conduct of all referenda and regardless of whether I agree or disagree with the views of the Government on a proposition and on the basis that it represents the majority view in this House, where a Government believes it is in the national interest that a proposal be put to the people and be effectively accepted by them with the result that the Constitution is amended, it should be able to argue in favour of that proposal as the Government. The courts should not step into that area and effectively muzzle the Government, as one democratically elected in this State, from encouraging people to vote in a particular way in a referendum. Had that been the case prior to the McKenna judgment I doubt if we would ever have joined the European Union.

There are complexities in proposals to be put to the people which, if not fully argued and explained by the Government, result in the public and the electorate, no matter how well informed, inevitably becoming unnecessarily confused. Those who hold minority views that do not deserve to be given weight because they lack credibility and substance are given equal standing with the true position. In the Nice Treaty referendum this led to the ultimate absurdity where one campaign slogan read "if you do not know vote no." It was based on the proposition that if the maximum confusion was created it would ensure that, whatever the proposal, the majority of voters will either not vote for it or they will become so confused that they will not vote at all.

This is a very important issue and it is regrettable it must be addressed in a brief debate in this House. Although I disagree with the view of the Government in the context of the referendum this Bill is designed to deal with, in that the proposition on the abortion issue the Government proposes to put to the people is wrong headed and inimical to women, I nevertheless recognise that the Government, as Government, should have the right to argue in its favour. In view of the McKenna judgment I have concerns about the constitutionality of this Bill. It should be referred by the President to the Supreme Court so that we do not have a constitutional challenge in the middle of another referendum campaign.

The referral of the Bill to the Supreme Court would create the possibility of revisiting the issues dealt with previously by the court in McKenna and give the court the opportunity to consider the type of propositions that a distinguished former Chief Justice considered he should write about in response to the consequences of the McKenna judgment.

I wish to deal briefly with certain matters in relation to the Bill and we may return to them in the very brief time allowed for Committee and Report Stages. The Minister needs to explain an aspect of the Bill for which I have waited with interest. The Bill is designed to ensure we no longer have the ridiculous situation whereby the commission is compelled to publish "yes" and "no" arguments and, no matter how ludicrous the arguments are on either side, to give them equal weight and equal credibility. That was a huge waste of public funds; it was an exercise that caused widespread confusion and I believe it undermined the public credibility of the commission through no fault of anybody involved in that commission. Effectively, it resulted in members of the Bar Library, late at night, being compelled to invent tortuous arguments in a public relations user friendly fashion to install in full page public advertisements that no right minded person had the capacity to read through or, if they did, they ended up less informed than when they started.

This Bill lays a trap for the commission. Section 1(a) (i) states: "The Commission shall have, in addition to any functions conferred on it by any other provision of this Act, the following principal functions relating to the referendum in respect of which it is established: (a) To prepare one or more statements containing a general explanation of the subject matter of the proposal and of the text thereof in the relevant Bill". What does that mean? I ask the Minister to give us an example of what general explanation of the subject matter of the referendum proposal the Government envisages – or at least the Fianna Fáil wing of it, the Progressive Democrats are vacillating because they want to have a foot in every camp in case they get into trouble in the next general election – of a simplistic nature that the commission can publish when there are so many complexities involved and so many disparate possible interpretations. Will we simply see a statement saying, if you believe a pregnant suicidal raped teenager should not be allowed to have an abortion in Ireland, vote "yes"; if you believe a pregnant suicidal raped teenager should be allowed to have an abortion in Ireland, vote "no"?

Is that the simple proposition we will see or will there be a page of text trying to explain the Bill the Government intends to put through the House and about which there are disparate interpretations as to the situation should the referendum succeed? The moment any advertisement is published by the commission with the type of statement envisaged, if we have not had a constitutional issue before then, on the basis of a presidential referral, it will arise at that point. One or other group campaigning in the referendum or an individual on one side or the other will inevitably be offended by the statement published and will challenge it under McKenna 2. In the middle of a referendum campaign, we will have a High Court and Supreme Court adjudication on the issue and the commission will suddenly be devoid of power to publish anything because it will be put on hold pending the outcome of the court case.

The proposal being rushed through this House is a classic example of the Government, when in a hole, digging further. It will not work in the way it is set out. I believe there will be a serious question mark over the validity of any referendum called while the constitutionality of this measure remains uncertain. There will be total confusion as to what the commission can and cannot do and what the constraints on the Government are or are not. We will be back to where we were in the Nice referendum, with a Government incapable of explaining, as Government, what the particular referendum proposal was about. Perhaps a couple of Ministers will stick their heads above the parapet while the rest of the Members on the Government side of the House keep their heads down for fear of doing themselves damage in their pending general election campaign. The Progressive Democrats will point in all directions. My Dublin South colleague, the Minister of State at the Department of Foreign Affairs, for the sake of re-establishing her credentials with the electorate in the constituency I have the privilege to represent with my colleague, Deputy Olivia Mitchell, will probably have second thoughts and announce that she is really a "no" voter but came along to the press conference because of the collective responsibility she had as a Junior Minister and all the media will be amazed.

It is time we dealt with fundamental legislation differently in this democratic Parliament. It is a disgrace that the Government is trying to push through this measure within two hours on the last day of sittings this term and deliberately organised for a time when it could be reasonably anticipated that not many members of the media would be present in the House to take much notice of this debate. It is the last sitting day before Christmas and it happens to coincide with lunchtime. A better advised Government, with a serious intent to address the issues set out in the very good and detailed report by Deputy Brian Lenihan's committee, would have published this Bill before Christmas, given everyone time to consider it and provided for a considered debate in the new year. There is no need for this hurry. The Government should change its mind and should not push through Second Stage today. If this matter is completed today, I believe it is in the national interest that this Bill be referred by the President to the Supreme Court for consideration as to its constitutionality prior to it being signed.

I wish to share time with Deputies Sargent and Ó Caoláin.

Is that agreed? Agreed.

I regret that the Minister for the Environment and Local Government, Deputy Dempsey, is not in the House to explain this Bill in person because some of the things I want to say about this Bill and how it has been introduced in this House relate directly to him. This House is faced again today with the pathetic reality behind the self-propagated image of this Government as a reforming one. The Bill before the House is a deceit. It does not deserve the support of this House and it will not have the support of the Labour Party.

Before I turn to the import of the Bill, I would first like to address the manner in which the Bill is being taken. The decision to run this Bill through the Oireachtas on the very last day of this session is an undemocratic and contemptible act. However, the Minister for the Environment and Local Government, Deputy Dempsey, who, I understand, is the principal author of the Bill, is a past master in using the Christmas season to bury controversial issues. Last year, as Members will recall, he introduced his famous electoral Bill around this time, the purpose of which was to allow Fianna Fáil to increase its electoral spend by nearly £1million in the next general election. It was only when Magill magazine, through the Freedom of Information Act, obtained background documents that we discovered the Bill was introduced at his direction and without research or advice to the effect that it should be introduced. It was a classic example of stroke politics, as is this Bill.

It is totally unacceptable that this House is being asked to run this legislation through in a couple of hours today. In a modern democracy, with a written Constitution, the process of referendum is a fundamental issue that goes to the very heart of democracy. The fact that this Government proposes a regressive change in the manner in which referenda are conducted is bad enough. However, this is compounded by the manner in which the Government has sought to pass this legislation today. The Minister's decision to steamroll this legislation through has already caused uproar in the Seanad this morning.

The way this Bill is being rammed through is beyond belief. Only emergency legislation, dealing with immediate matters of national security, is rushed through both Houses on the same day. That the Minister is intent on using the Government's majority to force this Bill through the House, with the minimum of parliamentary scrutiny, demonstrates that his so-called interest in electoral reform is a sham.

The Minister for the Environment and Local Government, Deputy Dempsey, has deceived the House in the manner in which he has introduced this Bill. On Question Time on 6 December, he was asked specific and detailed questions on the referendum commission and the Government's response to the report of the all-party committee. In response to those questions he replied:

These and other matters are under consideration in the context of whether to establish a commission for the forthcoming referendum on the Twenty-fifth Amendment of the Constitution, under the existing legislation or under amended legislation. When the Government has made a decision on these matters an announcement will be made.

He was then asked a succession of supplementary questions by Deputies Gormley, Clune and I. Deputy Gormley asked:

Is he considering perhaps amending the legislation so that the commission will simply tell people the referendum is taking place and encourage them to vote, or is he considering amending the legislation so that the commission will distribute money equitably, which would mean the bigger parties would get most of it?

I asked the Minister, in the context of whether he intended to establish a referendum commission, ". when does the Government intend to introduce amending legislation to provide some other means of allocating resources for that particular referendum campaign?"

In the course of his replies to those questions, at no stage did the Minister for the Environment and Local Government inform the House that he intended to introduce the Bill before us which is designed to amend the way the referendum commission does its work. I was so surprised at the extent to which he was being cautious in what he was telling the House that I put the following question to him. I asked:

Is the Minister seriously telling the House that a Government which decides everything on the basis of how it will run politically has not decided, a few working weeks before this referendum that has been promised for February, how the referendum campaign will be run and whether there will be a referendum commission?

In response, the Minister said:

In reply to Deputy Gilmore, as soon as a decision is taken it will be communicated pub licly but no such decision has yet been taken. I would not presume to make a decision or to announce when the Government might make a decision on a particular matter.

That was on 6 December.

The Bill before us was published, printed and circulated on Tuesday, 11 December. Unless the Government spent the entire weekend discussing the matters with which the Bill deals, I do not believe it had the ability to in such a short period produce legislation about which the Minister remained silent despite being asked specific questions on the preceding Thursday. Following the publication of the Bill on Wednesday, I asked the Taoiseach when the Government had decided to bring it forward and he replied that it has "been before the Government for the past few weeks".

At no stage in replying to questions last week did the Minister for the Environment and Local Government inform the House that legislation was planned, that the heads were drafted, that they had been circulated and that the issue would come before Cabinet this week. In his reply eight days ago, the Minister misled this House. He engaged in an outrageous act of deceit that has resulted in this item of democratic sabotage, the so-called Referendum Bill, being rushed through the Oireachtas today. The truth behind the drafting and approval of this Bill has been shrouded in secrecy and kept from this House. What is being attempted today is a disgrace.

When the veneer of respectability, which the Minister of State, Deputy Molloy, tried to maintain in his contribution, is swept aside, the real reason this legislation has been produced becomes all too clear. The Government is fearful about the democratic voice of the people since the vote on the Nice treaty. The Government, or at the very least the Fianna Fáil and Independent factions – on foot of the Minister of State's presence, the third leg of the stool may also be involved – are intent on foisting yet another abortion referendum on the country some time in the spring. This legislation is meant to clear the decks for that referendum. This legislation is formulated with one referendum in mind, namely, the forthcoming referendum on abortion.

The referendum on abortion will present the Irish people with a bleak choice. When a vulnerable woman, perhaps the victim of a vicious sexual assault, is so disturbed that she contemplates suicide rather than bring a pregnancy to full-term, the Irish State will send her into exile in Britain. That is what the Irish people are being asked to support in the forthcoming referendum and, belatedly, the Government has realised that the Irish people may well reject its proposal. I sincerely hope they do.

In an effort to avoid a second referendum defeat in the run up to a general election, the Government has introduced this legislation to stifle debate and protect its deeply flawed abortion proposals from sustained public scrutiny. That is the sole reason this legislation, which is inextricably linked to the abortion referendum, has been produced. That is confirmed by the reply of the Minister for the Environment and Local Government, Deputy Dempsey, to questions on the referendum commission when he stated that "These and other matters are under consideration in the context of whether to establish a commission for the forthcoming referendum on the Twenty-fifth Amendment of the Constitution". That reply proves the context for the Bill before us is the abortion referendum. I do not believe the Government expects to remain in office for very long after that referendum is held. The Bill before us is solely designed to boost the chances of that amendment on abortion being carried, by hook or by crook. It is the clearest sign yet that the Government knows it is in serious trouble of losing its abortion referendum.

This legislation is a cop-out. Few people in this House are vocal supporters of the manner in which the referendum commission has operated since it came into existence. That is no reflection on the individuals who make up the commission, they have done their best in difficult circumstances. In particular, the commission has been placed in an invidious position on a number of occasions. It has had to devise and propagate reasons to retain the death penalty and to reject a proposal to acknowledge the role of local government in the Constitution.

Given the constraints imposed by the McKenna judgment, the referendum commission operated in a very restricted environment. Quite often its advertisements in the media resembled public procurement notices, hardly the type of presentation that grabs the attention of the public. The commission's ability to provoke debate or discussion is very questionable and I fully support reform in that regard. However, the Minister does not. The Minister and the Government support the stifling of debate. That is what this Bill achieves and that is why it will be opposed by the Labour Party.

The Minister has effectively ditched the report of the All-Party Committee on the Constitution. He has ignored the contributions to the debate by, among others, Richard Sinnott and former Chief Justice O'Higgins in recent weeks. The referendum commission will now be confined to informing people that a poll is taking place and giving a brief outline of the proposal. The logic of the Minister's position is that the referendum commission should be abolished. Surely one of the legion of press officers employed by this Administration could turn its mind to informing the public of the date of a poll. Why do we need a commission to carry out this task?

The Minister has singularly failed to take on board the key recommendation of the all-party committee, which was that State funding should be provided to both political parties and lobby groups for a referendum campaign. This solution overcomes the somewhat arid nature of the referendum commission's work and would provide for lively and energetic public debate on constitutional issues. The Minister has failed to introduce any proposals along these lines. The Government has walked away from its responsibilities to ensure that an informed electorate exercises its democratic franchise in constitutional matters. For a Minister allegedly concerned about falling voter turnout, this is an incredible turn of events.

It proves yet again that this Minister's interest in electoral reform is pretty shallow. However, the Minister's effort to insulate the Government's abortion proposals from public debate and scrutiny may yet fall asunder. I have serious doubts about the legality of this proposal in the light of the McKenna judgment and believe that this legislation may well fall if tested in the courts.

The Bill requires the Referendum Commission to "prepare one or more statements containing a general explanation of the subject matter of the proposal ." I do not believe that a general explanation of the subject matter of an amendment to the Constitution can be value free. Any general explanation of the subject matter must contain some degree of advocacy. If anyone tries for a moment to construct a general explanation of the forthcoming referendum on abortion, for instance, the problems become apparent. Even the language used in a debate about abortion in this country is value laden. Does one refer to termination of pregnancy or abortion? Does one refer to the X case decision without referring to the real life tragedy that a 14 year old girl had to endure which is the real basis for that decision?

The fact is that in some instances, and I believe the referendum on abortion is one of those instances, a general explanation cannot but be value laden. The very language used in such an explanation, and the language not used in that explanation, are conscious decisions that could be construed to implicitly advocate a vote either for or against the proposal.

It is interesting that when the proposals relating to the forthcoming abortion referendum were first published and explained by the Government very many people, including some interest groups who subsequently changed their minds, and including the writers of editorials of some newspapers who have probably changed their minds, initially came out in favour of the Government's proposals. The fact is that a general statement explaining what this referendum is about, without having with it the arguments for and against in this case, is tantamount to an argument in favour of the proposal. In terms of a general explanation on the abortion referendum explaining, for example, that this is to provide the constitutional response to the X case and Supreme Court decisions, it is very difficult to see how one can find in the English dictionary the kind of language which will not have within it some degree of value or opinion. The Government recognises this. That is why it is in such a mad rush to get this Bill through the House now so that it can have an entirely different kind of statement coming from the Referendum Commission than has been coming from it in relation to previous referenda.

An objective statement.

This Bill is constructed with nothing else in mind than the forthcoming abortion referendum. There is no other explanation why the Government has suddenly found itself so engaged in the very admirable work of the All-Party Committee on the Constitution, of which Deputy Lenihan is the distinguished chairman. This is being brought in to tee off the abortion referendum. It will be tested in the courts before this Bill is signed into law or it will come before the Judiciary when the so-called general explanation is published. That section of the Bill is so loosely drafted that a variety of interpretations could be put on the term "general explanation" and I firmly believe it will be challenged in the courts.

The Labour Party will be opposing the Second Reading of this Bill for the reasons I have given.

Acting Chairman

Deputies Sargent and O Caoláin must conclude by 2.15 p.m.

Ar dtús be mhaith liom mo bhuíochas a ghabháil leis on Teachta Gilmore as a cuid ama a roinnt.

There is one thing on which I agree with the Minister of State, Deputy Molloy, who introduced this Bill, and that is that there is consensus that not all has been well with the conducting of referenda in the recent past. I do not agree, however, that the fault lies with the Referendum Commission or the rules by which it is bound. It is clear, and the public will see clearly, that the Government's argument that there is a need to quickly ratify the Nice Treaty is bogus. All the information coming from other parts of the European Union, from commentators outside Government, academic and otherwise, indicates that there is no rush. There are other countries that have yet to ratify the Nice Treaty. The public very quickly saw through the Government line. It was not the commission's line because the commission is bound only to give arguments which stand up factually, which can be substantiated and are true. Not only did the Government say there was a rush to ratify the Nice Treaty, it decided to give the minimum amount of time for one issue to be dealt with. It made this even more difficult and more suspect by trying to get four issues decided on the one day. Following protests from Opposition parties that was reduced to three.

The public is very astute at seeing what the Government is at when it puts its mind to casting a vote. Those who voted had a considerable amount more insight than the Government would like to give them credit for. It is small wonder therefore that the Referendum Commission had to rush out the information it was giving and that it therefore lacked detail and the slick presentation expected by media today. It is interesting and baffling that the Government has not picked up on why people are so suspicious when it tries to rush a measure through in the way it is trying to do again today.

At the time of the Amsterdam treaty and going back to the Maastricht treaty which introduced the Single European Act, the Government either tried to rush in the legislation or to lump the referendum in with some other referendum. That makes it even more difficult for people to come to terms with all the minutiae of the detail that has to be considered. The Referendum Commission has had to amend or abandon plans to have live debates which would allow for live, vigorous, real and very highly charged debates between different protagonists from different sides.

You occupy half the space.

People listen to both arguments. If the Deputy's arguments stand up he should have no fear of arguments with which he does not agree.

I do not believe in censorship.

What the Deputy is saying is that he does not believe in equal treatment. The commission is being sabotaged by not being able to carry out the role it was given. The Government claims that the commission's role is to put the "yes" and "no" sides of the debate, but the Government decides how much money the commission gets. If, as Deputy Lenihan claims, the need is for straightforward information, as was the case in relation to the Good Friday Agreement, it should not give the commission as much money. The Government still holds many of the cards. However, this Bill will be challenged. I believe the Government expects that the make-up of the courts will be different from when the McKenna judgment was handed down. It is taking the chance that, if challenged, it will be dragged along by the Government's claim that what was there before did not work. The Government has not allowed it to work, and the Government is trying to sabotage the Commission when it is the Government's fault that we have a problem with referenda.

I thank Deputy Gilmore for sharing his time. This Bill is a disgrace and the manner in which it is being dealt with is also a disgrace. Today we are having a re-run of the fiasco of the anti-democratic waste management Bill which was rammed through the House on the last day of the last session so that the same Minister who is presenting this Bill, Deputy Dempsey, could remove decision making powers from elected members of local authorities.

This Referendum Bill is a gross abuse of power by the Government. It is the rule of the bully – if your opponent defeats you fairly and by the rules, change the rules. The Government parties along with others, including Fine Gael and the Labour Party, were defeated in the Nice Treaty referendum. Rather than accept and act upon the decision of the electorate, the Government has tried to explain away that decision and has found a scapegoat in the Referendum Commission. That is what we are seeing in this Bill.

Let us recall the reason the Referendum Commission was established. Previously, the Government could use public money to promote one side of the argument in a referendum campaign. It could buy all the advertising and publicity it needed without spending its party political funds. The Supreme Court judgment in the case taken by Patricia McKenna found that practice unconstitutional. The Referendum Commission was established and given the task of presenting the arguments on both sides in referenda.

Nothing in the legislation establishing the Referendum Commission prevents political parties spending their own money on campaigns. To listen to some commentators, you would think only the commission could argue the "yes" and "no" cases. The reality is that in the Nice Treaty referendum campaign the parties on the "yes" side could not motivate or mobilise their activists and supporters. They lost the campaign, the argument and the referendum. Then they played the blame game and the losers are the people, whose access to full and comprehensive information is being curtailed by this emasculation of the Referendum Commission.

The Referendum Commission was not given the opportunity to operate as intended. The Amsterdam Treaty referendum and the Good Friday Agreement referendum were held on the same day in 1998. This year there were three referenda on the same day dealing with the Nice Treaty, the abolition of the death penalty and the International Court of Justice and, as my colleague pointed out earlier, it was intended to have a fourth referendum. In the space of three weeks the commission was expected to put together advertising campaigns on these referenda. It was given an impossible task. To criticise the commission for its presentation and to accuse it of sowing confusion in such circumstances is grossly unfair.

However, this Bill has nothing to do with the operation of the Referendum Commission. It is about circumventing the McKenna judgment and fixing the outcome of the next referendum on the Nice Treaty. All the major parties will be united in support of a "yes" vote and will have access to increased State funding to fight their campaigns as a result of other legislation passed this year. If the outcome of the Nice Treaty referendum had been different, as I pointed out to the Taoiseach this week, this shameful Bill would not ever have seen the light of day. However, one cannot fool all the people all the time. Clearly, the electorate trusted the impartial Referendum Commission more than it trusted the unholy alliance on the "yes" side. Now it sees that side effectively abol ishing the Referendum Commission, at least the Government manifestation of it.

I believe the people will make their judgment. I reject this Bill as a gross abuse of power and an attack on democracy.

Acting Chairman

The Minister of State will conclude but with the agreement of the House he will share time with Deputy Brian Lenihan. Is that agreed? Agreed.

The only point on which I agree with Deputy Ó Caoláin is that the people should decide the questions that are submitted to them in a plebiscite. I do not support the existence of a body which censors, amends or re-explains other people's arguments and purports to give them some form of authenticity. I thank the members of the all-party committee, representing Fine Gael and the Labour Party as well as Fianna Fáil and the Progressive Democrats, who unanimously agreed on that one point.

We cannot have a commission which recycles arguments and purports to give them a nihil obstat, described by Deputy Ó Caoláin as providing full and comprehensive information. The very stuff of political debate is partisanship. I disagree profoundly with what Deputy Ó Caoláin said about the Nice Treaty but that is something we must argue before the people, not feed arguments into an official commission in the middle of a referendum debate and have people confused with the idea that our arguments have official standing or sanction.

The air in this Chamber has been thick with political charge and counter charge this afternoon. It is undoubtedly correct, as Deputy Gilmore pointed out, that this Bill is required by the pending referendum but it is also clear that it is a modest Bill. It has one section. The all-party committee did not propose that money should automatically be given out in every referendum campaign. It recommended that consideration should be given to an equal distribution of funds to the partisans in a debate. It could never be required in every referendum that that be the case and, as the Minister said, there are many good and valid reasons that the Government saw such a scheme as extremely complex to put into operation. There are also many taxpayers who would object to public moneys being employed to put forward some of the points of view that are expressed in different plebiscites. It is obvious that many taxpayers would object to the funding of arguments with which they might have a profound disagreement.

When Mr. de Valera brought forward the Constitution in 1937, there was no Government sponsored campaign to introduce the measure. The Fianna Fáil party had to campaign to have that document enacted. There was no question of State funds being used. I have always admired Patricia McKenna for instituting the proceedings which ensured that Governments could not use State finances to fund the outcome of a refer endum result. The Government that did that was the rainbow Government led by Deputy Bruton.

The Government has to look at how a proper debate can take place among the people in the pending referendum. Having a commission which recycles arguments is not a device to assist public understanding of the issues involved. A call was made by Deputy Shatter for the Bill to be referred by the President to the Supreme Court on the basis that a former Chief Justice believes the Supreme Court might change its mind on the McKenna decision. However, there is nothing in this Bill which infringes the McKenna decision in any respect and no constitutional provision was advanced by Deputy Shatter regarding why the President should consider there is a doubt about the constitutional validity of this measure. In fact, there is nothing in the Bill that infringes the Constitution.

Deputy Gilmore made the case that section 1(a) of the Bill might give rise to litigation in the course of a referendum campaign where the general statement which the commission will now prepare could give rise to controversy and court proceedings. However, that is not a ground for the unconstitutionality of the measure, it is simply an anticipation of what might happen during a referendum contest. If that happens, the courts will have to address and deal with it but there is nothing in the Bill which infringes the Constitution. There is no basis for the President to refer a Bill to the Supreme Court when there is nothing in the Bill which is unconstitutional.

I welcome the fact that the Government has acted on the recommendation of the all-party committee and I commend the Bill.

I thank the Deputies who contributed to the debate and who expressed varying views. I presume they were motivated by different points of view, political and otherwise. I find it extraordinary that, in a situation where something has been before an all-party Oireachtas committee, which has made a recommendation that the law be changed in relation to the Referendum Commission's role, and where all of the speakers—

On a point of order, reference was made to the All-Party Committee on the Constitution. Will the Minister clarify that this refers to parties under the Standing Order which only lists parties of seven members and more? It does not include all parties recognised in this House.

Parties under the rules of the House as we know them. That recommendation was made. We will definitely have two referendums, whenever they are held. It is incumbent on the Government to make decisions on these matters if it agrees that what obtains is unsatisfactory. The Oireachtas committee that considered the matter agrees it is unsatisfactory. Nearly all the contributions today by Deputies agreed that the current situation, where the for and against arguments must be made by the commission, is unsatisfactory, to put it mildly. It was described as farcical and I agree – that is the opinion of most who have considered the matter. I do not know the exact date of the next referendum – the Taoiseach has indicated he would like to see it in February or March but it is incumbent on the Government to ensure this farcical situation does not obtain at that time and, therefore, to make changes which will affect the holding of that referendum and the role of the commission. It is a one-line Bill because the other sections are just standard. The changes are contained in one section. To say that this was rushed, and to imply the Government is trying to do something underhand, is wrong. All of this has been done in the open.

In two hours.

The Government cannot be accused of rushing the matter without proper debate. The subject of referendums was considered and reported on in 1996 in the report of the review group on the Constitution. It was then referred to in the first progress report of the All-Party Committee on the Constitution in April 1997 and in the recent sixth progress report published last month. The matter was debated in both Houses when the Referendum Act, 1998, was approved, and also in a special Seanad motion in June 1999.

There has been some huffing and puffing about the rushing of this Bill. That has more to do with arguments for or against the abortion referendum than it has to do with the role of the commission.

That is what the Bill is about.

It does not make sense to continue with the commission as it is—

It has nothing to do with the commission.

—when all parties in the House are agreed it is farcical, that the Bill needs to be changed and that these changes have to be brought forward by way of legislation.

Deputy Olivia Mitchell asked how the Referendum Commission would carry out its functions. I did not think I would have to explain that the Referendum Act, 1998, provides that the Referendum Commission is independent in the performance of its functions. It is not up to me to tell it how to do its job. I have every confidence that it will carry its job out in the way it is expected to do.

That is rich.

The Minister is trying.

The Deputy also said she agrees with the repeal of the commission's function in setting out the arguments for and against. I find it extraordinary that she has indicated she will vote against the Bill. This has more to do with Fine Gael's recent policy decision that they will oppose anything and everything, whether or not it has merit.

The Minister should give us some merit.

That is what is emanating from that party. Deputy Shatter sought clarification of the general explanation of the subject matter of the proposal in section 1. If he looks up the 1998 Act that is being amended, he will see it contains the same statement in relation to the role of the commission in preparing a statement containing a general explanation of the subject matter of the proposal and of the text thereof in the relevant Bill. The commission will do its duty. It is competent and will act independently. I will not tell the commission how to perform its function. While there has been criticism of the statements with "Yes" and "No" arguments, there has not been the same criticism of the commission's statements in fulfilling its duties under paragraph 3(1)(a) of the 1998 Act.

I reject the statement by Deputy Gilmore that the Government was trying to stifle debate through this Bill. There is a general view that the production of a list of arguments for "Yes" and "No," without a weighting of those arguments, is leading to confusion on the part of voters. That has been confirmed in the different contributions to the House. It is also the view of the All-Party Committee on the Constitution and is supported by leading political scientists. There is a difference between providing balanced information and information which is likely to confuse voters. The Referendum Commission will issue one or more statements setting out a general explanation of the subject matter of the proposal. It will then be a matter for the Government, political parties, individual Members of the Oireachtas, interested groups and individuals to put forward their points of view. The electorate can have regard to the arguments for and against and will be able to form a view on the weight they should give to those arguments. This is considered to be more balanced than a straight list of arguments that does not give any indication as to who or what organisation is promoting the argument. This should lead to a more productive debate on the issues involved.

Referenda, as an exercise in direct democracy, are important and how we conduct them and inform the electorate about the proposals before them is crucial to their effectiveness. This is a short Bill which seeks to correct what is generally accepted to be a weakness in the current arrangements by removing the function of the Referendum Commission to present arguments for and against a proposal. However, it also seeks to develop its responsibilities by giving it a new remit as a promoter of participation.

The Bill is not about rowing back on the McKenna judgment as has been suggested by some speakers. That judgment is not a restraining factor on any party, Government or interest group engaging in robust campaigning at a referendum. It prevents, however, the use of Government funds to promote a result on one side of a referendum argument. This Bill respects that position fully.

There should be no suggestion of a constitutional inquiry into the Bill. While the Bill implements two of the recommendations of the all-party Oireachtas committee report, it does not provide for a scheme to dispense funds among the "pro" and "anti" sides at a referendum, as was recommended in that report. It is agreed by all sides that the introduction of such a scheme would require detailed examination of the statutory criteria, the allocation of funds, what conditions should be attached to that funding, and arrangements for the auditing of expenditure. Any scheme would have to be in compliance with the legal judgment to which I have referred.

Deputy Gilmore mentioned a question that he put to the Taoiseach on 6 December. On that date, the Minister for the Environment and Local Government, Deputy Dempsey, indicated the matters were under consideration. The Taoiseach indicated the matter had been before the Government for some weeks.

The Minister for the Environment and Local Government did not tell us that the Bill was being considered.

The Government examined the various options available on this issue, made its decision on 11 December, and published the Bill on 12 December. The Minister for the Environment and Local Government said that it was under consideration.

He did not.

The intention was to bring forward a Bill following consideration. That is the way business is done.

He hid it from us.

I commend the Bill to the House.

Question put.

Ahern, Dermot.Ahern, Michael.Ardagh, Seán.Aylward, Liam.Blaney, Harry.Brady, Johnny.Brady, Martin.Brennan, Matt.Brennan, Séamus.Briscoe, Ben.Byrne, Hugh.Callely, Ivor.Carey, Pat.Coughlan, Mary.Cullen, Martin.de Valera, Síle.Dennehy, John.Ellis, John.Fahey, Frank.Fleming, Seán.Flood, Chris.Fox, Mildred.Gildea, Thomas.Hanafin, Mary.Haughey, Seán.Jacob, Joe.Keaveney, Cecilia.Kelleher, Billy.Kenneally, Brendan.

Kirk, Séamus.Kitt, Tom.Lenihan, Brian.Lenihan, Conor.McGennis, Marian.McGuinness, John J.Martin, Micheál.Moffatt, Thomas.Molloy, Robert.Moloney, John.Moynihan, Donal.Moynihan, Michael.Ó Cuív, Éamon.O'Donnell, Liz.O'Donoghue, John.O'Flynn, Noel.O'Hanlon, Rory.O'Keeffe, Ned.O'Kennedy, Michael.O'Malley, Desmond.O'Rourke, Mary.Power, Seán.Roche, Dick.Smith, Michael.Wade, Eddie.Wallace, Dan.Wallace, Mary.Walsh, Joe.Wright, G. V.

Níl

Barnes, Monica.Barrett, Seán.Boylan, Andrew.Bradford, Paul.Broughan, Thomas P.Browne, John (Carlow-Kilkenny).Bruton, Richard.Carey, Donal.Creed, Michael.Currie, Austin.Dukes, Alan.Durkan, Bernard.Fitzgerald, Frances.Gilmore, Éamon.Gregory, Tony.Healy, Seamus.Higgins, Michael.Hogan, Philip.McDowell, Derek.McGahon, Brendan.

McGrath, Paul.McManus, Liz.Mitchell, Gay.Mitchell, Olivia.Moynihan-Cronin, Breeda.Neville, Dan.Ó Caoláin, Caoimhghín.O'Shea, Brian.O'Sullivan, Jan.Perry, John.Quinn, Ruairí.Rabbitte, Pat.Reynolds, Gerard.Ryan, Seán.Sargent, Trevor.Shatter, Alan.Shortall, Róisín.Stagg, Emmet.Upton, Mary.Wall, Jack.

Tellers: Tá, Deputies S. Brennan and Power; Níl, Deputies Bradford and Stagg.
Question declared carried.
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