Seanad Éireann debate -
Wednesday, 11 Feb 1942

Vol. 26 No. 7

Referendum Bill, 1941—Second Stage.

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

Minister for Local Government and Public Health (Mr. MacEntee)

The Constitution provides that a referendum may be taken in certain circumstances upon certain legislative proposals, and has to be taken where a proposal is made to amend the Constitution. The taking of a referendum, according to the Constitution, is to be regulated by law, and this Bill contains the provisions for so regulating it.

The Bill is in three parts. The first is the preliminary or general part and, among other things, it defines the referenda which may be taken under the Constitution. The first to be defined is a constitutional referendum and the second is an ordinary referendum. The terms "constitutional referendum" and "ordinary referendum" are used throughout the Bill. It also provides, under Section 6, for the appointment of an officer to conduct the referendum. That officer is known as the referendum returning officer.

Part II of the Bill prescribes the procedure which is to be followed for taking a poll at a referendum. Generally, this procedure is similar to that for the holding of a general election. It provides for the appointment of a day upon which the referendum is to be held and, where a constitutional referendum is to be held, it provides that such referendum may be taken upon a day upon which a poll is held for a general election. In general, the procedure is the same as that which pertains at a general election, the exception being that whereas at a general election people have to vote for or against certain candidates, at a referendum they have to assent to or dissent from certain propositions. The form of the ballot paper is prescribed in the Second Schedule to the Bill, and the assent to or dissent from a proposition is to be indicated by a vote or by making a cross in the appropriate column.

Part III of the Bill provides for the procedure which is to be followed where the result of the referendum is challenged. When the referendum returning officer receives the returns from the several constituencies in the country and has considered them, analysed them and tabulated them, he issues what is known as a provisional certificate giving the provisional result of the referendum. That certificate does not become final and conclusive until after the lapse of an appointed time. If, within that period, the figures in the provisional certificate have not been challenged by petition or if, having been challenged by petition within the appointed time, the petition is not upheld by the High Court, then, on notification from the appropriate officer of the High Court, the provisional certificate becomes final and conclusive evidence of the result of the referendum.

Part III, as I have said, of the Bill prescribes the procedure to be followed where a petition is lodged challenging the figures given in the provisional certificate: in fact, challenging the result of the referendum as first declared by the Referendum Returning Officer. The procedure which has to be adopted for the trial of a petition challenging a referendum differs in some material ways from the existing procedure relating to a petition challenging the result of an election. In the case of an election, as the House of course is aware, the person primarily concerned in defending the petition is the person who has been declared elected. In the case of a referendum there is no person who can occupy that position; so that there is no person in most cases who can be appointed as a respondent to defend the petition. Now, where the petition is presented by a private individual the Bill makes provision that the Attorney-General shall defend the result of the referendum. Where, on the other hand, the Attorney-General presents the petition, as he may do under the Bill, operating, of course, in the public interest, we have a provision whereby, if necessary, the High Court may appoint some person to defend the referendum, and in that way we assimilate as closely as we can the procedure in regard to the trial of a referendum petition to that which obtains in the case of a petition challenging the returns at an election.

Schedule I contains the rules for taking the poll at a referendum, and, as may be seen, both in the relevant sections in Part I of the Bill and in these rules, the poll is to be taken everywhere throughout the country on the one day, and will be by secret ballot. Part II of the Bill provides that any member of Dáil Eireann may nominate, first of all, a personating agent to represent him at so many of the election centres or so many of the polling places as he may consider desirable, provided that in respect of each polling place he is only entitled to one representative. It also allows a member of Dáil Eireann to appoint two persons to represent him at the count of the votes of the referendum in whichever constituencies he elects to be represented at, and it also allows him to nominate himself as one of the persons to represent him at the count. The rules further provide that a re-count of all the votes or of an appropriate parcel of the votes may be asked for, and it is mandatory upon the returning officer to grant this re-count and to continue the re-count until the results of two successive counts of the same ballot papers, whether the whole or a packet thereof, agree or coincide. In the event of the results of two counts agreeing, then it will not be mandatory upon the returning officer to grant any further re-counts.

These are the principal provisions of the Bill. There is perhaps just one other point I may bring out in regard to it, and that is that every person who is entitled to vote at a Dáil election will be entitled to vote at this election, provided that he or she has attained the age of 21 years, and the Bill contains provisions which will permit the returning officer to put questions, to any person who applies for a vote, to elicit the information that, in fact, he or she has attained the age of 21 years.

Mr. Fitzgerald

An amendment to the Constitution was passed a number of years ago, which provided that after the lapse of three years there could be no further amendments to the Constitution except by means of a referendum. Therefore, as I think the three years have now elapsed, I presume that such a Bill, providing machinery for the taking of a referendum, is necessary. I have never concealed my judgment that that amendment to the Constitution was not only undesirable but also unworthy, because it implied many untruths. I have felt always that in the case of a written Constitution, in a comparatively new State, you should have an easy means of amending it over a large number of years. It is only by meeting the various contingencies that time brings about that one is able to judge what should be a permanent law, only changed with difficulty. The Constitution, as it was prior to a few years ago, was rather derided—I think it was called then a thing of rags and tatters—because it had been so frequently amended. During the last three years, or something more than that I think, we have had quite a number of amendments to the Constitution in the form it was given some years ago. Now, under circumstances, we have to make provision for the taking of a referendum and the machinery of it. I hope that some time a referendum will be taken for recasting the whole Constitution as it is.

I am not going to say much about this Bill, but there are quite a number of things that I should like to have made clear. For instance, take this business of a member of the Dáil nominating a representative in a constituency. I do not quite understand what was visualised there, unless it were that the member of the Dáil had proposed, by motion or otherwise, an amendment to the Constitution himself. One would assume that any amendment to the Constitution would arise out of a situation, not hitherto experienced, which made it abundantly clear to the responsible representatives in the Legislature that such an amendment was necessary. I do not quite understand how this thing is going to work in the case of appeals in the court, how it is that one party is going to appeal. I should like to mention now that, when, in whatever year it was, 1937 I think, at the time of a general election, such a referendum purported to be taken, I had knowledge of quite a number of constituencies, and I am quite satisfied from what I saw that the majority of the votes cast with regard to the Constitution were—I do not want to say that they were illegal, but they did not fulfil the conditions of the law. I am quite satisfied that if there were some means of looking over all these papers it would be found that whereas the law provided that the indication of approval or disapproval of the proposed change should take one form— I have forgotten whether it was a cross or the word "yes"—the majority of voters had misunderstood their position and voted in a way that would have meant, if the law had been rigidly applied, that the majority of the votes would have been accounted as of no effect because they did not fulfil the conditions.

There is only one other thing that I want to say. If there is a proposal to change the basic law, it can be changed by such a referendum by a mere minority of the people on the voters' list. We know that the enormous change made some years ago was effected by a minority of the people eligible voting in favour of that change. I suggest that we want to get rid of all this humbug, if I might use that word, of pretending that somehow or other the whole judgment of the people in a sort of unanimity is brought to bear on the thing. So far as that change was concerned, there was only a minority vote for it. I admit that the minority was bigger than the minority voting against it. Somewhere in the early part of the Bill there is a reference, I think, to ascertaining the will of the people. That phrase "the will of the people" is merely a cliché. I strongly object to the suggestion that if you have 100,000 voters voting and 51,000 vote one way and 49,000 vote the other way that is what can be called the will of the people. It is only the will of the majority of the voters.

While it may be necessary at some stage to have more elaborate machinery brought into operation for changing fundamental laws, I think we ought to clear our minds of a certain amount of implied non-truths that were in that last amendment. The last amendment talked about the people enacting a new Constitution. That amendment, in so far as it was legal, was legal for this reason and for this reason only, that the Dáil, the legislative authority in this country, had legislated and provided that, certain conditions being fulfilled, that change would take place, and it is only from that that the legitimacy of that change in the law became operative. I find in this an attempt to carry on what I might call the same disingenuous suggestion made on the other occasion. There is talk here about the will of the people. The law-making authority in this country is the Legislative Assembly and that authority resides solely in them. I have always objected to the implication in that last amendment suggesting that, although you have a Legislature in whom authority resides, at the same time the authority is residing in the whole mass of the people. In so far as this Bill becomes operative, the votes of those people, or the majority of them, will have that certain effect for the sole reason that the Legislative Assembly is enacting that, under these conditions, those votes will have that effect and for no other reason. Can the Minister give me the reference in the early part of the Bill to the will of the people?

Mr. MacEntee

There is a reference in Section 10 (1) (a).

Mr. Fitzgerald

That reads:

"Whenever the President informs the Taoiseach in accordance with Article 27 of the Constitution that he has decided that a Bill to which that Article applies contains a proposal of such national importance that the will of the people thereon ought to be ascertained...."

I strongly object to that. What he means is that it contains a proposal of such national importance that the provisions of this Bill shall be made operative and a vote shall be taken and a decision of a majority of those who actually cast their votes legally according to the provisions of this Bill shall take place. The idea that the will of the people somehow or other is what 51 people for and 49 against is a thing that I certainly am never going to miss an opportunity of protesting against. As I say, one has to recognise that, as the law stands, some Bill providing for this type of referendum is necessary. I want to make it clear that I am only going to support this Bill for the reason that it has been made necessary by another Bill. I also want to make it clear that I am not going to admit that a thing is true because 51 people say it is true while 49 people say it is not. I should like to know what will be the Irish text of that clause (a) in Section 10 about the will of the people. Is "people" there plural or singular?

I do not want to delay the House about this, as the Bill is necessary as the law stands, because our experience during the last few years has shown that we have constantly required to amend the Constitution as it was passed on that previous occasion and, therefore, we must have some machinery for amending the Constitution sometime. This is a cumbersome machinery. It is a singularly undesirable form, but we are bound to have it in this form, though when it comes to the Committee Stage I think that one might have quite a number of amendments.

I should like the Minister to have given a rather more detailed explanation of the various sections of the Bill. Perhaps he could at some stage during its consideration in this House give us a more or less imaginary picture of a given case being put to the country, the voting taking place on it, and the reasons why one or other of the Deputies of the Dáil would have representatives; an imaginary case of the thing being challenged in the courts and the machinery of that, which I must say, on a not too careful reading of the Bill, I have not got clear. I have not been able to relate that to what I may call an imaginary case taken to the courts. I think we have got to pass some such Bill, but I very much regret it is the case.

Mr. Robinson

The only criticism I have to make is that this perpetuates the practice of bringing the people to the polls instead of the polls to the people. Everybody knows that it is enormously costly, but it is indulged in because, as a rule, what you are to vote on is a political issue between various Parties. That may be all right at a general election where one Party wants to get into power and the other wants to keep it out. But it is conceivable when a referendum is taken that it need not necessarily be on a political issue in that sense at all. The result would be that, unless the Parties were prepared to make it a political issue, nobody would vote, because nowadays people have been trained not to go to the polls unless people produce transport to get them there. In any case, I think it would be a more advanced idea if the polls were brought to the people rather than having to bring the people to the polls. Certainly in country districts it is enormously difficult.

From the fact that certain privileges have been given to members of the Dáil to appoint agents to watch each other and to see that people do not personate, it looks as if it is expected that every time a referendum is taken it must be fought as if it were a contest between political Parties. I cannot see why that particular privilege is given to members of the Dáil. The inevitable result will be that in a three-member constituency where a member has died one particular Party will not have any opportunity to appoint an agent, unless it means that a member of the Dáil can appoint an agent in any booth in any constituency that he likes. I suppose the intention really was that a member of the Dáil in the constituency in which the booth was situate would appoint the personation agent, because there would not be much point in persons from Cork appointing personation agents, for instance, in Louth.

Mr. Fitzgerald

There might be. If a private Deputy in the Dáil desired to have an amendment made to the Constitution and the issue went to the people, he might want to have representatives at the polling in every constituency.

Mr. Robinson

Perhaps that was the idea. At the present time, if a referendum were taken there would be quite a number of constituencies which would not have a member of the Dáil. My main criticism, however, is that it is a bad system to be bringing people to the polls instead of bringing the polls to the people.

Mr. Healy

The Minister stated that, if the count were challenged, there would be a further count and, if that agreed with the first count, the matter would be ended. Suppose the second count does not agree with the first, what happens?

Mr. MacEntee

Another count.

Mr. Healy

Will that give rise to a fourth count?

Mr. MacEntee

Perhaps.

Mr. Healy

That ought to be made perfectly clear.

Mr. MacEntee

It is clear.

Mr. Honan

This Bill is the same as Bills which dealt with the election of members of Dáil Eireann. As regards Senator Fitzgerald's point about the difference between 51 and 49, these figures constitute a majority and a minority, respectively, and we must abide by majority rule, unless he wishes us to decide by minority rule. In every other connection, we have majority rule. As regards Section 11, which deals with the procedure and method of polling, I suggest a more equitable distribution of polling stations. The machinery is already there, but it has not been sufficiently utilised. Members of the House who are familiar with the country know that there are many areas in which a voter may have to pass a polling booth quite close to his house and proceed a distance of seven miles to another polling booth in order to register his vote. That position has caused the greatest inconvenience at elections. It should be taken into consideration in connection with this Bill. The returning officer, or prospective returning officer, at the next election should be empowered to make a schedule of the polling stations in each area and see how they could be rearranged so as to reduce the distances which voters have to travel.

Mr. Hogan

Section 13 (3) says: "No person shall be entitled to vote more than once (whether in the same constituency or in different constituencies) at the poll..." The intention is to prevent a person voting twice. Is the Minister satisfied that that sub-section carries out the intention? Will a person be entitled to vote more than once in different constituencies?

Mr. MacEntee

No. "Once" is absolute.

Mr. Hogan

It seems to me that, according to the wording, a person would be entitled to vote more than once in different constituencies.

Mr. Fitzgerald

No. The second part is in parenthesis.

Mr. MacEntee

It may be that the sub-section is not too happily worded. If I were drafting it, I do not think I should say "whether in the same constituency or in different constituencies". I do not see how a person could vote only once if he were to vote in two constituencies. He could not cast a fraction of a vote in each.

Mr. Hogan

Why not say that he shall not vote more than once.

Mr. MacEntee

The word "once" is, I think, absolute there. Senator Fitzgerald questioned the whole basis on which the proposal contained in this Bill rests——

Mr. Fitzgerald

I recognised that it was necessary.

Mr. MacEntee

It has been ordained by the Constitution that a referendum of the people must be taken in certain circumstances. We have now to give effect to the provisions of the Constitution and to make arrangements for regulating, by law, the taking of the referendum. So far as the fundamental theory underlying the Bill is concerned, we must take that as already decided and proceed on the assumption that it is generally accepted. The practical point which Senator Fitzgerald raised related to the fact that every Deputy is given the right to appoint a personation agent in every polling place in the country, if he so thinks fit. He wants to know why that is being done. It is being done because we have to give practical recognition to the fact that, if a referendum in relation to ordinary legislation is to be taken at all, it can be taken only as a result of concerted action which has been agreed to by a number of members of the Oireachtas—a majority of members of the Seanad and, at least, one-third of the members of the Dáil. It is assumed that, as they will combine to ensure that a referendum be taken upon ordinary legislation which is of great importance, they will also combine to ensure that the result of that referendum will correctly represent the views of the majority of such portion of the electorate as is sufficiently interested in the proposition to go to the polls for or against it. Assuming that sections of the Dáil act in concert, they may find it convenient to appoint one of their number to supervise, generally, the taking of the referendum on their behalf. Accordingly, it has been felt that, as such supervision could not be exercised unless there was proper control of those who present themselves and claim to be entitled to vote, this person should be given the right to appoint personation agents to act in the same way as if he happened to be a candidate in each of the constituencies in which the referendum was being taken. It is for that reason that every member of the Dáil—we could not purport to act for any section of Deputies—has been given the right to appoint a personation agent in every polling place, if he so desires.

Mr. Fitzgerald

Why should not members of the Seanad have the right? They might be the majority interested.

Mr. MacEntee

They might, but, as they cannot secure a referendum without the co-operation of members of the Dáil, and as members of the Dáil are assumed to be attached, more or less, to constituencies, and to be familiar with the procedure at popular elections——

Mr. M. Hayes

Whereas the Seanad is remote.

Mr. MacEntee

As the Seanad is above the heat and dust of Party strife, we thought members would not like to demean themselves by interfering in these rather controversial matters. If the Seanad feels moved to make such provision, I do not see any objection to permitting a Senator to nominate a personation agent. I do not think it is a privilege which many members, either of the Dáil or Seanad, will feel called upon to exercise. A referendum can be secured only by a number of members of both Houses, in requisite proportions, acting in concert. I assume that, as they combine for the purpose of securing a referendum, they will combine also to ensure that the interest they desire to safeguard will be fully looked after during the taking of the referendum.

Senator Robinson said that the objection he had to the Bill was that it continued the practice of bringing the people to the polls instead of bringing the polls to the people. I do not know exactly what Senator Robinson had in mind. Perhaps he wanted, in the case of a referendum, to have the voting by post. I do not see any other way by which we could bring the polls to the people except by sending the ballot papers or the referendum papers to the electors by post—presumably that would be the most convenient way— and asking them to post the papers back to us with their decision in relation to the question on which the referendum must be taken. I do not think that would be a very economical method of taking a referendum, nor do I think it would be a very secure or efficient method either. I think one would have very great difficulty in safeguarding the authenticity of the votes which would be cast by post on the occasion of a referendum. I think, in fact, the only safe and secure means of conducting procedure of this kind is to provide that every person who feels sufficiently interested in the question at issue, who has formed an opinion on one side or the other in regard to it, and who wants to make that opinion effective, should himself turn up at the polling booth and indicate his will in regard to the question at issue.

Mr. Fitzgerald

The Minister is quite prepared to take the opinion of only 10 per cent. of the electorate on it.

Mr. MacEntee

I have not said that. It is not in the Bill at all events. What is in the Bill is that where the Legislature has decided that it is desirable to amend the Constitution, before that decision becomes effective, it must be referred to the people and that then, if a majority of those who are interested in the question go to the polls and vote in favour of the constitutional amendment, the amendment becomes effective. That is not to say that we allow 10 per cent. of the people to make up our minds for us. The amendment must first of all be agreed to by both Houses of the Oireachtas, and then it is referred to the people. I think we may assume that in this case silence gives assent and if the people refrain from registering their votes, then, at any rate, they are prepared to abide by the amendment of the Constitution.

Professor Johnston

What happens in cases where the Government under Section 8 decides not to submit a proposed constitutional amendment to the people? Section 8 provides that where a proposal for the amendment shall have been passed by both Houses, and the Government determines that such proposal shall be submitted by referendum to the decision of the people, the Minister shall appoint by order the day upon which the polling at such referendum shall take place. Suppose the Government says: "We shall not submit it to the people"— what happens then?

Mr. Fitzgerald

There is no amendment.

Mr. MacEntee

There is no effective amendment of the Constitution. This matter has been very carefully considered and, as the Constitution stands at the moment, it is not mandatory on the Government to submit a proposal to amend the Constitution to the people. If they do not submit it to the people, even if it has passed both Houses of the Oireachtas, the amendment cannot become effective. The amendment is put, as far as I can ascertain, in cold storage.

Professor Johnston

The Government then has the right to nullify the whole thing by not submitting the amendment to the people after it has passed both Houses of the Oireachtas?

Mr. MacEntee

It is not a case of nullifying it. We have got to take the actual practical situation in this regard into consideration. Presumably, in the great majority of cases at any rate, the proposal to amend the Constitution would necessarily have to be introduced by the Government, or at least it would have to be a proposal of which the Government is in favour, otherwise it would not pass both Houses of the Oireachtas without a change of Government. If a proposal were introduced which the Dáil considered acceptable and if that proposal were carried against the wishes of the Government, there would have to be a change of Government.

Professor Johnston

By law?

Mr. MacEntee

Yes, because, remember, the Government must retain the support of the majority of the Dáil. As well as that, the Bill could not at any stage proceed through the Dáil unless it was supported by a majority of the Dáil. The Government could not be in a permanent minority in the House opposing a Bill which the Dáil wished to pass. We may assume, at this stage at any rate, that it is very unlikely that any constitutional amendment could be carried through both Houses against the Government. If it were carried through the Dáil against the Opposition of the Administration in power at the date of its introduction, it could only be carried through under the aegis of another Government which would presumably be in favour of the proposal and which would naturally, in order to make it effective, recommend it to the people. It is conceivable that a proposal to amend the Constitution, carried even at the instance of the Government, through both Houses of the Oireachtas, might be a proposal which might turn out to be not of very great moment. It might be a proposal the need for which had disappeared after a period of time and the Government might not at a general election put the proposal to the people in order to make the amendment effective. If that were to happen, the proposal would not die. It would remain in a state of suspended animation. As the Constitution stands at present, it could at a subsequent time be put by any other Government to the people.

Mr. Robinson

Is it not conceivable that after a Government had been elected for a short time, a proposal to amend the Constitution might come from the Opposition, and the Government, suddenly realising that it might lead to a revolt in their own Party, might allow a vote to be taken with the Whips off? In that case a majority would be obtained for the Bill although the Government was not responsible for it.

Mr. MacEntee

That might happen, but the moment that happens one of the conventions of the Constitution, I think, would be violated. The big fact remains that our Constitution is based on the assumption that the Party system, as we know it, will continue to operate, and the moment you begin to deal with important public matters by taking off the Whips, it means, in effect, that the Government places itself in the position of Pilate and washes its hands of responsibility, thereby bringing responsible government to an end. But I do not think that we need split straws about matters of that sort now. The point to which Senator James Johnston has referred relates to a difficulty with which it may be necessary at some future time to take special steps to deal, but I do not think it is of sufficient importance at the moment to trouble ourselves about it.

Senator Honan raised the point that polling places are not very numerous and very often are situated in inconvenient places. That is a matter which is entirely within the control of the local authorities and the county councils. It is the county council which determines, with the sanction of the Minister, where the polling places are to be situated. A great many changes for the better have taken place in the position since 1922 and it would be of great advantage if local authorities generally would review the whole situation and try to make it easier and more convenient for the electorate to vote. We cannot, however, in that connection close our eyes to the fact that there are certain practical difficulties. Polling places have to be easy of access; they have to be reasonably large and well-lighted and, in general, buildings which can be placed at the disposal of the returning officer for the purposes of the election at a convenient date. You cannot conveniently establish polling booths in busy places, and you cannot conveniently install them in private houses. Generally, a number of people have to be accommodated and temporary structures erected conveniently, and at no great expense. I know from experience in the City of Dublin that it is not always easy to get convenient polling places, and I have no doubt that position obtains also to a large degree in the country. I think it would be of great public advantage if local authorities would review the facilities given to voters in their areas at present, to see whether these could not be improved upon. In the Department of Local Government we shall be only too glad to consider very sympathetically any proposals for improvement submitted for our sanction.

Mr. Johnston

At present the register is made up alphabetically and there may be a unit in which there are two polling stations miles apart, so that voters living beside one polling booth may have to travel a long distance because of the way the register is compiled. This question was raised in Monaghan at a meeting of the county council with a view to an improvement and the reply given was that there would have to be consultation with the Department of Local Government, and that legislation would be required to change the register.

Mr. MacEntee

I will look into that matter. I am advised that there must be some misunderstanding, because the matter could be dealt with by splitting the register.

Mr. Honan

That is the situation I had in mind. Voters living in adjoining houses might in one case have to travel several miles to register their votes although there was a polling booth in the vicinity. I do not know how it is regulated, but that position exists.

Mr. Healy

Arising out of that point——

Leas-Chathaoirleach

Does the Senator propose raising a question? He has already spoken.

Mr. Healy

It was in answer to the question raised by Senator Johnston.

Leas-Chathaoirleach

The Minister is in the course of concluding the debate.

Mrs. Concannon

Perhaps the Minister would explain who has the right to be present at the counting of the papers when a constitutional referendum is held at the same time as a general election.

Mr. MacEntee

I will look into that.

Mr. M. Hayes

That would be a place for putting Senators in.

Mr. MacEntee

Senator Mrs. Concannon has raised an important point that I will look into.

Question put and agreed to.

Committee Stage ordered for next meeting of the Seanad.