Seanad Éireann debate -
Wednesday, 25 Feb 1942

Vol. 26 No. 8

Referendum Bill, 1941—Committee Stage.

Sections 1 to 7, inclusive, agreed to.

SECTION 8.

(1) Whenever a Bill containing a proposal for the amendment of the Constitution shall have been passed or be deemed to have been passed by both Houses of the Oireachtas and the Government determines that such proposal shall be submitted by referendum to the decision of the people, the Minister shall, within one week after such determination by the Government, appoint by Order the day (in this Act also referred to as the polling day) upon which the polling at such referendum shall take place.

(2) The polling day appointed by an Order made by the Minister under this section shall not be less than 30 days and not more than 90 days after the date of such Order.

(3) Whenever the Government determines that a constitutional referendum shall be taken, the Government shall cause notice of such determination to be published in theIris Oifigiúil, and thereupon such publication shall be conclusive evidence of such determination.

(4) Every Order made by the Minister under this section shall be published in theIris Oifigiúil as soon as may be after it is made.

Professor Tierney

My object in putting down the amendments that stand in my name on the Paper was more to elicit information than to propose a wording over which I would be absolutely prepared to stand. The first amendment, in my name, reads:—

In sub-section (1) to delete all words from and including the word "and" in line 41, to and including the word "Government" in line 44, and to insert instead thereof the words "the President shall."

This amendment, which I now move, has as its object to delete from the Bill the phrase "and the Government determines that such proposal shall be submitted by referendum to the decision of the people" etc. The other amendments have as their object to substitute the word "President" for the word "Minister" in the various sections concerned with the carrying out of the referendum. The object of these amendments, taken together, is to bring the Bill into line with the Constitution, as I understand the Constitution. It seems to me that in the Bill, and especially in that clause referring to the determination of the Government that such proposals shall be submitted by referendum to the decision of the people, something new is being imported into the Constitution, something which is not in the text of the Constitution. The Government, apparently, are taking there a power that the Constitution does not give them. In Article 46 of the Constitution the wording seems to me to be entirely mandatory. Clause 2 of Article 46 reads:—

"Every proposal for an amendment of this Constitution shall be initiated in Dáil Eireann as a Bill, and shall upon having been passed or deemed to have been passed by both Houses of the Oireachtas, be submitted by referendum to the decision of the people in accordance with the law for the time being in force relating to the referendum."

I take it that the reference to "the law for the time being in force relating to the referendum" simply means the machinery for the time being for carrying out the referendum; it does not refer to any possibility of having the referendum postponed or giving the Government any power to do anything else except at once submit Constitution amendments to a referendum of the people.

It seems to me, then, that that sentence in Section 8 goes altogether beyond the Constitution and that it should be deleted. Again, the reference to the Minister, it seems to me, also implies some power being given to the Minister as a member of the Government, which it is not intended by the Constitution that he should have. I am putting down these amendments not because I am an admirer of the machinery that has been adopted in the Constitution, or because I am in any respect a strong believer in the referendum for Constitutional purposes, but because I do not like to see a certain untidiness being admitted into a Bill in the way it is proposed to be done here, or to see a sentence in a Bill which seems to me to be completely against the spirit of the Constitution.

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

I suppose I ought to begin by admitting at once that, so far as the provisions of Clause 2 of Article 46 of the Constitution are concerned, the position is not at all pellucid. It would appear, on a first reading, as if the point which Senator Tierney has made was correct, that this clause of the Article makes it mandatory to hold a referendum as soon as a proposal to amend the Constitution has passed both Houses of the Oireachtas. On the other hand, that Article might also be taken as defective to the extent that it does not impose upon any organ of the State the responsibility for taking a referendum or the duty of arranging for a referendum to be taken. There is, apart from that, however, a difference in wording between Clause 2 and Clause 5 of Article 46, which, I think, is of importance in this connection. I might paraphrase Clause 2 by saying that it states that every proposal for an amendment of this Constitution shall, upon having been passed or deemed to have been passed by both Houses of the Oireachtas, be submitted by referendum to the decision of the people. It might be argued—I am not saying that it could be conclusively argued—that the proper construction of that clause in the Article might be held to be that as soon as a proposal to amend the Constitution had passed both Houses of the Oireachtas it should thereupon be submitted by referendum to the decision of the people. As against that, however, we have the phraseology of Clause 5 of the Article, which, I think, is very important. That clause reads:—

"A Bill containing a proposal for the amendment of this Constitution shall be signed by the President forthwith upon his being satisfied that the provisions of this Article have been complied with in respect thereof..."

Now, I think that the difference in phraseology there is important in trying to construe the Article, because if the intention had been, as is suggested in certain quarters, that, immediately upon the passage of a proposal to amend the Constitution through both Houses of the Oireachtas, a referendum should have been taken, I think the phraseology which has been used in Clause 5 of the Article would also have appeared in Clause 2.

Mr. M. Hayes

That is, that the word "forthwith" would have appeared in Clause 2?

Mr. MacEntee

Yes. I think that is what was in mind, bearing in mind what is the usual technique of draftsmanship. I think that the practice is not to use a differing phraseology, which might lead to a different construction, where in fact the same thing is to be implied, and therefore I think that if there were uniformity of intent there would be uniformity in the verbal construction of each Article. However, apart from that, we have this fact, that while Clause 2 states that a proposal to amend the Constitution cannot finally become Constitutional law until it has been submitted to the people and approved by the people, it does not place any responsibility upon any organ of the State to take that referendum. On the other hand, in Clause 4 of Article 47 we have that, subject to certain provisos which really express the criteria by which the result of the plebiscite is to be determined, the statement that the referendum shall be regulated by law, and I take it that the real reason for that is that we could not embody in the Constitution detailed proposals for the referendum. I take it that the object of that Constitutional provision is to allow both Houses of the Oireachtas the fullest discretion and the fullest freedom in formulating the detailed provisions which would be necessary in order to enable a referendum to be taken effectively. So, in the light of that, I do not think it could be argued very forcibly—not conclusively, at any rate —that the provisions of Section 8 of the Bill are repugnant to the Constitution, and I think that was the main point which Senator Tierney stated he had in view when he was putting down these amendments.

Now, the next point that would arise on the amendments—if they are to be taken not merely as something to elucidate the Constitutional position—is this: that I do not think they make any significant change in the present provisions of the Bill. The Bill provides that the Government shall determine that a proposal to amend the Constitution shall be submitted to the people. It appears to give to the Government, and I think it does give to the Government, the option of deciding whether it shall take the conclusive step of submitting a Constitutional proposal, which we may assume it has been responsible for putting through both Houses of the Oireachtas, to the vote of the people.

Senator Tierney proposes to give to the President, in fact he proposes to make mandatory on the President, the duty of providing that steps to have a referendum shall be taken within one week. But there we are in a rather difficult position, because Article 13 of the Constitution definitely limits the discretion of the President in regard to additional powers and functions conferred on him by law, for Clause 11 of Article 13 states that:

"No power or function conferred on the President by law shall be exercisable or performable by him save only on the advice of the Government."

Now it seems to me that if we were to accept Senator Tierney's amendment in the form in which it stands, it could be held, and I think it would be held, that Section 8 (1) of the Bill, as Senator Tierney would propose to amend it, would be repugnant to the Constitution, for the section would confer on the President, first of all, an additional power and an additional function and it would make it mandatory on the President within one week after such determination, to appoint, by Order, the day upon which the polling on such referendum would take place. On the other hand, in so far as Parliament may confer additional functions upon the President, it is provided by the Constitution that he can only exercise these functions on the advice of the Government. Accordingly, I think, as I have said, if we were to amend the section in the manner proposed by Senator Tierney, that we would be acting ultra vires the Constitution and that that section of the Bill would be held to be repugnant to the Constitution.

In saying that I do not want for a moment to disguise the fact that a certain difficulty does exist in relation to proposals to amend the Constitution. Apparently, as the Constitution stands at present, and subject to any device which lawyers may be able to conceive of to deal with the situation, there does not appear to be in the Constitution any way in which a proposal to amend the Constitution can be finally disposed of except by referendum. If there is a proposal for ordinary legislation, and if the President does decide that it is of sufficient national importance to take the opinion of the people upon it, then that proposal, unless either a referendum or a general election occurs inside the space of 18 months, would appear under the Constitution automatically to lapse. There is no such proviso, so far as I can see, governing the position of a Constitutional amendment, so that a Constitutional amendment can pass through both Houses of the Oireachtas and can remain in a state of suspended animation if the Government which passes it, or any succeeding Government, does not decide to take the voice of the people upon it. In relation to proposals to amend the Constitution, once they have gone through both Houses of the Oireachtas, they would seem to be removed completely from the control of the Government, with the exception which we propose in this Bill, and to remain in a state of suspended animation until some unspecified authority elects to take a referendum upon it.

Now, the position we are in is this: that, in order to get over that difficulty, we think that the Government which was responsible for initiating a proposal to amend the Constitution should determine whether it is to travel the whole course and submit the Bill finally to the people. There is nothing which we can do beyond that which would really bind the Government to do the latter and which, at the same time, would not be ultra vires the Constitution. Therefore, we can only do this, so far as I can see at this stage: we can only say that if the Government elects to take a referendum upon this proposal to amend the Constitution, then within a certain statutory period that referendum shall be taken. As I have shown, I do not think that it makes any effective difference to substitute the President for the Government in determining if and when a referendum shall be taken, because, if we were to adopt Senator Tierney's amendment, it would be only a change in form and no change at all in substance, as the President would be bound to act on the advice of the Government, and, if the Government elected to advise him to the contrary, so far as this Bill is concerned I do not think there would be any way out of the deadlock which would arise. Therefore, I submit it would be more prudent and the sounder view to take of the responsibilities of the Government to give the Government the right of determining if and when a referendum upon a proposal to amend the Constitution shall be taken. That is all I have to say in relation to the amendment, but I think a great deal of what I have said applies also to the amendment in the name of Senator Johnston.

Mr. M. Hayes

I never thought much about this Constitution, but, as it works out, it appears to get worse. The referendum itself has merits, particularly in a highly-developed democracy which has exercised functions and is keenly conscious of the importance of those functions. I am not so sure whether we are in that state yet ourselves. I am not very clear about the value of the referendum in our conditions. I can see few merits in the referendum itself. Perhaps I should not discuss that. However, Article 46 of the Constitution does appear to make it mandatory that, if you pass a Constitutional amendment through both Houses of the Oireachtas, you must submit that amendment to the people, and I find nothing in Article 46 to support the view of the Minister that, in spite of the Article, you may pass a Constitutional amendment through both Houses and then put that amendment into cold storage—the Minister called it suspended animation.

I should like the Minister to tell us whether there is anything in this Article or anywhere else in the Constitution which implies that a Constitutional amendment passed by both Houses may be left in a state of suspended animation. I do not think it should be so left. The great merit of this Constitution when it was put through both Houses was alleged to be that it would be cast-iron after a certain period, that following an initial period of three years, every amendment would have to be submitted to the people. Now the Minister takes power in this Bill in Section 8 to allow the Government to intervene to make nugatory the provisions of Article 46. That seems to me to be what it means; that an amendment is passed and, in spite of the amendment having been passed, the Government does not carry it on to the final stage. It seems to me that Article 46 is mandatory:

"Every proposal for an amendment of this Constitution shall be initiated in Dáil Eireann as a Bill ...

It cannot be initiated in the Seanad.

. . . . . and shall upon having been passed or deemed to have been passed by both Houses of the Oireachtas, be submitted by referendum to the decision of the people in accordance with the law for the time being in force relating to the referendum."

It seems to me a very great straining of these final words—"in accordance with the law for the time being in force relating to the referendum"— to assume that the law for the time being in force can provide that there need be no referendum. That seems to be a strain which nobody could possibly put on the Article. The Article appears to contemplate that there shall be a law—it is common form—to determine the machinery of the referendum.

It does not contemplate that there shall be a law which will make the whole of Article 46 null and void and of no effect. There, certainly, ought to be machinery in this Bill which does not exist in the Constitution for determining how the provisions of Article 46 shall be carried out. The Minister's point that the President would only act on the advice of the Government would not invalidate an amendment providing for the insertion of the word "President" here. If the word "President" were inserted here and if he were given certain powers, that provision would be mandatory on the Government. Surely, the Government could not advise the President against the exercise of powers conferred on him by law.

Mr. MacEntee

Whatever ambiguity there may be about Article 46, I think there is none about Article 13.

Mr. M. Hayes

If we give the President power under this section of the Bill and make it mandatory——

Mr. MacEntee

You cannot do that.

Mr. M. Hayes

If we conferred that power on the President, the Government would not have the power to advise him to the contrary—to break the law. The real difficulty is that this Government is responsible for drawing up a Constitution with all sorts of trimmings and fallals, making it very democratic; but, having been in office, they feel that nobody should exercise any powers except the Government. I think that the provisions of Article 8, whereby the Government can hold up an amendment to the Constitution, are contrary to the words of Article 46 and to its whole spirit. If a Government does not want a particular Constitution amendment to go to the people, it need not let the Fifth Stage of the Bill pass in the Seanad. There are all sorts of methods open to a Government which has a majority in the Dáil or in both Houses—as, under the Constitution, every Government will now have—by which they can prevent a Bill from going to a referendum. The Minister himself is sufficiently experienced in politics to know that. If they do not want to submit a Bill to referendum, they need not let the proposal go to its final stage. They can get the opinion of both Houses but they need not pass the Bill and they need not have a referendum.

We have Article 46 of the Constitution making a referendum mandatory and we have Section 8 of this Bill giving the Government power to put it into cold storage or to leave it in a state of suspended animation. The two things are quite contrary. Did I misunderstand the Minister when I thought he said that he was now proposing to insert an amendment in this Bill by which it will be mandatory on the Government within a certain period to have a referendum?

Mr. MacEntee

I did not say that.

Mr. M. Hayes

I misunderstood the Minister. If the provisions of the Constitution have any value in respect of the referendum proposal, there should be a provision in this Bill to confer upon somebody the right and power to see that, within a certain period, the referendum would be taken. If that is not done, it would be better to amend the Constitution and take out the referendum provision altogether.

Mr. Douglas

I have a good deal of sympathy with the amendment and with the Minister in the difficulties under which he is suffering, judging by his speech. I served on a committee a considerable time ago which endeavoured to prepare drafts of a Constitution. A good many of these drafts never saw the light of day, but some of them did. Some things in them seemed to me excellent in theory at the time, but my view was shaken afterwards when I saw them under the actual operation of government. It seems to me that the Government have been unduly affected by recent events. In this case, they are picturing a Government which will advance to a certain stage and then retire to a certain position. They are now trying to prepare that position so that it will be possible, having piloted a Bill through both Houses, for a Government to change its mind and to say that the people should not have an opportunity of expressing their view upon it.

To a certain extent, we are discussing what is unreal because we are dealing only with very rare cases. I can see what I have mentioned happening only when a Government has come to the conclusion that it has not the confidence of the country by the time the Bill is through or that they have lost the confidence of the Oireachtas. They would not have brought the Bill through both Houses unless they were quite confident that the people wanted the proposed amendment. We are, therefore, dealing with one type of case—a case in which there is a change of public outlook or of Government policy. In that case, it seems to me that it is not right that a Government which have had full time for consideration of a Constitutional amendment should have unlimited time left to them in which they would leave that amendment in a state of what has been described as "suspended animation." They ought to drop it altogether or they should have to submit it to the people. I would vote for this amendment, though I am not satisfied that, without further amendment, it would be satisfactory. The Minister should accept the principle that the Government should put the issue to the people or that the Bill should be regarded as dead and should not be revived unless replaced by a new Bill. If the Government does not believe sufficiently that the people want the proposed amendment, I do not see very much use in going to the expense of a referendum because the Government would probably use its Party machinery to get the amendment defeated. That would create an absurd position and would not make for respect for the Executive in the country. To that extent I disagree with the amendment—it does not go far enough.

As to the argument regarding the constitutionality of amendments to the Constitution, I have, during the considerable time I have been a member of this House, discovered the futility of trying to decide the meaning of an Act which we have passed. There is only one place in which the meaning of an Act can be finally decided. We may think that we know what an Act means when passing it, but, once it is out of our hands, its meaning is also out of our hands. Any argument based on whether the Minister or Senator Tierney is right would not get us very far. The Minister suggests that the Bill is Constitutional, but that Senator Tierney's amendment, if adopted, might be unconstitutional. All that belongs to "might-be" and I do not think we should make any decision based upon it.

Incidentally, I cannot agree that the absence of the word "forthwith" means that there can be indefinite delay. I find that, according to the Constitution, the President, on the nomination of the Dáil, has to appoint a Taoiseach. I do not see the word "forthwith" in the Constitution there. On the Minister's argument, the President could wait for a year before appointing a Taoiseach. I do not believe that the absence of the word "forthwith" has the significance which the Minister suggests. Therefore, that particular argument will not hold water. The practical side of the matter is to find what is desirable. Can we find any way of reaching a reasonable position? I do not think it is desirable that the Government should be in the position simply to leave a Bill dealing with a Constitutional provision for a year or for two years without any referendum. I think it preferable that the calling of a referendum should be in the name of the President rather than by the Government, especially in Constitutional amendments. While the aim should be to detach him from Party politics, I would prefer to have the President. I do not claim, however, that that would make an enormous difference. Whoever does it, it should be done within a reasonable time, and not more than six months or a year should elapse before the referendum. We know from experience, and from the debates on the Constitution that a period of time or the re-reading of a section raises doubts as to the exact meaning. The Minister is doubtful as to the exact meaning of a certain clause. He has not formed that opinion through any action in the courts because the matter has not been tested. The same thing might apply to any Constitutional amendment. If it is not going to be put to the people at once, but brought forward again in 24 or 36 months, it should come forward as a new Bill and be rediscussed in the light of changing events. Looking at it from the practical point of view I think the Bill should be changed in the manner I indicated.

Mr. O'Donovan

It seems to me that the arguments on this section and on the amendment are of a negative character. I presume the words objected to are "and the Government determines". That leaves it to the Government to decide if it shall go on with their proposal or shall go to the referendum. We are presuming that the Government does not decide to do so. I do not think any Senator put forward a reason why, after the Government sponsoring a Bill in both Houses of the Oireachtas, they should then decide that they would not put it to the referendum. We are assuming the possibility of that happening, but we cannot give any reason why it should happen.

Mr. Douglas

There might be some by-elections in the meantime.

Mr. O'Donovan

If Senators want to put the word "forthwith" in the Bill that would be ultra vires the Constitution. It seems peculiar that the Party that opposed for all they were worth the powers conferred on the President when the Constitution was being passed through the Oireachtas now want to confer additional powers on him, and to say “the President shall do this”. It seems strange, after all the opposition there was to the powers that the President was assumed to receive, but did not receive, that we now have this amendment to confer on him additional powers which would be ultra vires the Constitution as passed. I cannot see why the Government, having passed an amendment through both Houses, should not put that to the referendum fairly quickly.

Mr. M. Hayes

Put down an amendment to that effect and we will all support it.

Mr. O'Donovan

There is a subsequent amendment in the name of another Senator that seems to me to be more reasonable. Suppose the Government decides that the time is not opportune for some reason—say that foot-and-mouth disease had broken out in the country or that epizootic disease was raging—it would be difficult there and then to hold the referendum as such an outbreak might rage for six months. I am putting up that as a possibility that the Government would have to deal with. Is it not possible then for the Government to come back to both Houses and say that the time was not opportune, and that it did not meet Government policy to support a proposal for the referendum? Could the Government not submit to both Houses a motion for the rescinding of a proposal for the referendum? These are matters on on which it seems to me we are arguing in the negative. We are assuming that the Government acts with full responsibility, and then presuming that they will come forward and say that they would not do what was proposed. I think this amendment is perfectly ridiculous and would be ultra vires if passed.

Mr. D. Fitzgerald

I agree with most of what the last speaker said, that we are assuming that the Government is going to do all these things. That is not implicit in the amendment but was rather implicit in the line taken by the Minister. It seems to me to be not an unreasonable proposition, that Clause 2 of Article 46 makes it mandatory, once a proposed amendment of the Constitution passes the two Houses, that it must go to the people. The latter part of the section leaves no question, except as to the form in which it must go and what machinery will be used and determined by law. I think that can hardly be questioned if this matter went to the courts and if it were challenged. The last speaker misunderstood the line taken by the Minister. So far there has been no proposal as to what limit it should go. As I understood him, what the Minister proposes is that if an amendment to the Constitution was introduced in the Dáil, and passed both Houses, the last speaker seemed to assume that it could only be introduced by the Government. It might be introduced by the Government.

Mr. O'Donovan

I did not say that it would be introduced by them. I do not think it would get through both Houses without the support of the Government.

Mr. D. Fitzgerald

That is generally the case, but not necessarily so always.

Mr. O'Donovan

That does not add anything to the argument.

Mr. Fitzgerald

It is clearly laid down that when certain formalities have been gone through in that way, and passed through the two Houses, the amendment shall be submitted to the referendum. The only time limit is merely that it shall be submitted to the referendum. That requires a whole lot of machinery, and it says that the machinery implied is a mandatory command that the Constitution shall be determined by law. That is what this Bill is to do.

Mr. O'Donovan

There is no time limit in the Constitution.

Mr. Fitzgerald

I agree.

Mr. O'Donovan

I gave one reason where time would elapse.

Mr. Fitzgerald

The Senator assumed that the discussion was concerned only with whether it might be a longer or a shorter time. As I understand it, the implication of the present Bill is that, although the Constitution says that this shall be submitted to the referendum, the position as conceived by the Minister is that it need not be submitted at all to the people.

The last speaker proposed a way of meeting a possible difficulty, and he instanced a case in which there might be foot-and-mouth disease all over the country. I think myself that in such circumstances a simple resolution introduced into the Dáil and passed by the Dáil and Seanad, after an amendment had been adopted by the two Houses of the Legislature, might justify the Government in not submitting such amendment to the people. At the present moment, I do not see how it can be said that the Constitution does not command specifically that if such an amendment is so passed, it shall be submitted. It seems to me that to refuse to submit it would be quite unconstitutional.

With regard to having the decision about putting the referendum to the people in the hands of the President instead of in the hands of the Government, the Minister says, I understand, that that is ruled out by the words: "No power or function conferred on the President by law shall be exercisable or performable by him save only on the advice of the Government." I think that this Constitution is a bad Constitution, badly drafted. Personally I detest referenda, as I believe that they are against the wellbeing of the State, but, if I remember rightly, the Constitution also provides that the President in his own discretion may decide at a given moment that the Government has lost the confidence of the Legislature or of the Dáil. Now I quite agree that the powers given to him there are not conditioned by the clause I have just read from Article 13 because that Article refers to powers given by ordinary statute law, whereas these powers given to the President are conferred by the Constitution itself. But you could easily have a position in which an amendment is introduced into the Dáil against the wishes of the Government and passed by both Houses. The mere fact of that having happened might be a datum on which the President might decide, entirely on his own discretion according to the Constitution, that that Government had lost the confidence of the Dáil.

Mr. MacEntee

It only gives him discretion to refuse a dissolution. It does not give him power to dissolve the Dáil.

Mr. Fitzgerald

But inasmuch as it is giving him discretion, it is removing the position of having to accept the advice of the Government.

Mr. MacEntee

Only in relation to one matter.

Mr. Fitzgerald

Say that an amendment has been introduced into the Dáil against the wishes of the Government and that it has passed both Houses, it is not the law of the land until such time as it has been submitted by referendum to the people, but the Government has fairly lost the confidence of the Dáil. The only power of the President to refuse the advice of the Government is in relation to the dissolution of the Dáil, but here is a position where the Government is given this power, against the Legislature to which it is responsible, to thwart the wishes of that Legislature. If this amendment as proposed is passed, the decision will be put into the hands of the President, but the Minister says he can only act on the advice of the Executive Council. It does seem to me in that case, inasmuch as the Constitution itself says that it shall be submitted to the electorate— that is a command of the Constitution, "it shall be"—and the conditions relating to it having been fulfilled, as it has passed both Houses, the Government in refusing to advise the President to have it submitted is itself acting against the Constitution. Its refusal to act would be a completely illegal course. I think that then—I am not purporting to speak as a pundit in the matter—a case could be taken to the courts for an injunction against the Government commanding it to give the appropriate advice to the President. I admit these things are fantastic, but it is just because the Constitution we are working is an ignorant, stupid and fantastic Constitution. There is one thing perfectly clear——

Mr. O'Donovan

Can the Constitution be called ignorant and fantastic?

Cathaoirleach

Senator Fitzgerald.

Mr. Fitzgerald

An effect always reflects its cause.

Mr. O'Donovan

I say the Irish people did not consider it ignorant and fantastic. This Constitution was passed by the Irish people and I think these words should be withdrawn. We have listened to enough piffle from the Senator.

Mr. Fitzgerald

This Constitution became law as a result of a minority of those having the right to vote in the country, having voted for it. That is the historical fact.

Mr. O'Donovan

A very lucid explanation.

Mr. Fitzgerald

A minority of the people of this country, empowered to vote, voted in favour of it and a great number of those voted in favour of it in an illegal way.

Cathaoirleach

I suggest that the Senator should now pass away from that aspect of the matter.

Mr. Fitzgerald

I quite agree, Sir. What I want to come to is——

Mr. O'Donovan

Come to it.

Mr. Fitzgerald

The Constitution makes it mandatory on the Government to submit an amendment under these conditions to referendum. I do not think the Minister could possibly argue against that. That is the fact. I admit that in so far as the Constitution has not specifically set out the time within which this should be done or the machinery by which it should be done, the Government may postpone indefinitely the time when it should be submitted, but implicitly it is only postponing and is not absolutely abandoning the proposal for a referendum. The Minister, however, gets up here and says that by virtue of Article 13, Section 11, it would be unconstitutional to give the President the powers proposed in this amendment. If that is so it is equally clear that it is unconstitutional to pass a law which visualises the Government refusing to act according to the demands of the Constitution. The Constitution leaves no doubt whatever that once an amendment has passed the two Houses, it shall be submitted to the people, but it leaves another question as to the machinery that will be employed and as to the time that may elapse. I am satisfied myself that if you pass this Bill, and if a case were taken before a competent court, that competent court would have to say that, in so far as this Bill permits the Government not to submit an amendment to the people, it is acting unconstitutionally.

Professor Tierney

I do not altogether agree with those who maintain that this matter is of very little importance. It is easy enough to visualise circumstances in which a position such as is contemplated in the Bill might lead to all sorts of undesirable manæuvres and stratagems, especially in connection with the Constitution which should be above manæuvres of that kind. What I dislike about this section of the Bill is that it re-introduces the Executive's power to come between the Legislature and the people. The Constitution provides apparently that once an amending Act has gone through the Legislature it shall automatically be submitted to the people. The Bill then comes along to reintroduce the Executive at that stage and to give the Executive power to come between the Legislature and the people and to say that something which the Legislature has passed shall not be implemented. If that procedure were applied to ordinary legislation, it would amount to a dictatorship and would mean that the Government could step in at any moment, once a Bill had been passed by the Oireachtas, and say: "That Bill shall not become law. We have changed our minds. We do not think it desirable that the Bill should be carried into effect and it is hereby postponed or hung up." It is the principle involved, whatever its consequences in any concrete situation might be, which seems to me to be very objectionable. I think this is a power which a Government with any real respect for the Constitution should not take.

When I saw that provision in the Bill for the first time, I must say that my unregenerate spirit was rather inclined to rejoice, because personally I have no great belief in a referendum, and particularly a referendum which is intended to make amendment of the Constitution, and of this Constitution especially, more difficult. I think it very foolish to have given the country a Constitution which it is almost impossible to amend, but, at the same time, when we have done that deliberately, I am merely trying to prevent the Government from driving a coach and four through the Constitution which it has itself solemnly promulgated and given to the people and which it has got the people to accept. It is easy enough to visualise circumstances under which a Government might resort to various stratagems in order to postpone the carrying into effect of legislation of its own, and of legislation that had been forced upon it. It might well happen that a Bill for an amendment of the Constitution would pass both Houses of the Oireachtas in spite of the existing Government. This section of the Bill would then give the Government power to hold up such a Bill. In any case, I think it very undesirable to contemplate circumstances, under which the Oireachtas, having solemnly and perhaps lengthily debated a Constitutional amendment, the amendment is then to be held up for several months, and perhaps several years, and ultimately brought to the people at a time when they have practically forgotten about it and have lost interest in it. The whole procedure contemplated in this section seems to be very undesirable, both in principle and so far as it can be reduced to practice.

I do not think there was much substance in the point the Minister made about its being mandatory on the President to take action within one week. In my amendment, the reference to one week is struck out of the Bill—the time limit is abolished. It is mandatory on the Minister as the Bill stands, but, if my amendment is accepted, no time limit for the President's action is contemplated. I introduced the President into this because the procedure for ordinary referenda involves the action of the President. That was my only reason for doing so, and I am quite prepared to accept any other machinery which would, in fact, carry out the provisions of the Constitution. As regards the point the Minister made about Article 13 of the Constitution, I fail altogether to see what its substance is. Under Article 13:—

"No power or function conferred on the President by law shall be exercisable or performable by him save only on the advice of the Government."

As Senator Hayes has pointed out, that machinery does not contemplate that the Government should advise the President to contravene a law of the Oireachtas. If we pass a Bill and the President accepts it, it becomes law, and it is surely not contemplated that the Government should advice him in the teeth of such a law to refuse to act? It seems to me that that question of advice refers to matters of machinery. It would be right and proper that the Government should be called on to advise the President as to the exact date on which a certain declaration should be made and that in that matter the President should act as the organ of the Executive, but, beyond that, I fail to see what application Article 13 has to this situation at all.

Even if it were true that this matter is affected by Article 13, surely it would be better to leave such a matter for decision as between the President and the Government when it arose, if it ever did arise, than to enshrine in an Act of Parliament words which, on their face, bear a construction contrary to the express words of the Constitution? I do not think it is relevant or useful to bring Article 13 into this matter, nor do I think it is relevant or useful to make points about the use of the word "forthwith" in Article 46, as the Minister has done. It would require a philologist to make a study of this Constitution and examine the cases in which the word "forthwith" is used. The obvious construction of that word in Article 46 surely is that the President's action in this case is mandatory——

Mr. MacEntee

It is mandatory on the President.

Professor Tierney

——and that he cannot take such a Bill as this to the Supreme Court. What it contemplates is action such as is contemplated in Article 26, under which the President can refer a Bill to the Supreme Court on the advice of the Council of State. That is the only meaning it has and it has no reference to this situation.

Mr. MacEntee

It very definitely relates to time.

Professor Tierney

It relates to time, but in the sense that——

Mr. MacEntee

I would translate it as "without any further demur or delay".

Professor Tierney

That is what I think should be understood and that is the position we should try to create —that the President should, without any further demur or delay, or any action to postpone the implementation of such an Act of the Oireachtas, proceed to carry it into effect at whatever time may be convenient. He cannot be bound to do things the very next day. Some convenient time will have to be given for setting up machinery and making arrangements, but beyond that I do not agree that the word "forthwith" has any relevancy at all to this situation.

I do not quite agree with what Senator Douglas said about the uselessness of arguing matters of this kind and about the necessity for having these questions decided by courts of law. When we are engaged in passing legislation to set up machinery for carrying out the provisions of the Constitution, surely we are entitled—and not merely are we entitled, but surely it is our duty—to take account of the provisions of the Constitution and to interpret these provisions not as judges or lawyers but in the light of ordinary commonsense? It seems to me that anyone reading Article 46 in the light of ordinary commonsense would say that, undoubtedly, it is mandatory—that there is no question whatever of any power being given to the Government in it, or any power contemplated for the Government, to hold up legislation already passed by the Oireachtas. I am not at all an admirer of the referendum nor am I an admirer of the Constitution. I put down these amendments merely in order to secure that the matter would be discussed and that it should not be passed by without attention being paid to it, but, apart from that, I have no particular interest in it and do not propose to press the matter to a vote.

Mr. MacEntee

In view of what Senator Tierney has said, I do not think there is much purpose in dealing with the points raised, but I can assure the Senator that men of commonsense do differ, and differ very strongly, as to whether Clause 2 of Article 46 makes it mandatory upon the Government, or upon any person, to proceed to take a referendum upon a proposal to amend the Constitution. Under the Constitution and by tradition, there being a tribunal to interpret statutes, we cannot proceed in this House or elsewhere to act according to the notions of every individual's commonsense, because what may be commonsense to one man may appear to be sheer nonsense to another.

Therefore, we have to try to get some common principles of interpretation. One of the principles of interpretation, I understand, is that a statute or Article or section must be read as a whole. When we find in one section of Article 46 the word "forthwith" used, meaning, as I have said, that the President shall proceed to discharge certain functions without any further demur or delay and when we see in Section 2 of the same Article a different phraseology used, it certainly can be interpreted that, whatever else the phraseology in Section 2 of Article 46 may mean, it does not mean "forthwith". Therefore, it does not make it mandatory upon the Government to proceed to take a referendum. Not merely does it not make it mandatory on the Government to proceed to take a referendum, but, if we get back to the commonsense interpretation of it, the plain fact is that Section 2 does not make it mandatory upon anybody. It does not say that the President shall do it, nor does it say that the Government shall do it.

Professor Tierney

Is it the Minister's contention then that, unless the word "forthwith" is used everywhere in the Constitution, no provision that does not contain that word is mandatory. I think dozens of cases could be quoted to show that that is not so.

Mr. MacEntee

I say that this Article of the Constitution which relates to the referendum has to be construed as a whole, and that inside the limits of that Article the same word shall be used to express the same condition so that there shall be at least uniformity of phraseology and, therefore, uniformity in interpretation. I am advised that the indisputable effect of Section 2 of the Article is this: that, whatever else may happen, the Constitution cannot be amended unless the proposal to amend it has been submitted by referendum to the people. That is what Article 46 does. I have said that Section 2 of Article 46 imposes no executive function or responsibility upon any person, or upon any organ or instrument in the State. On the other hand, we have Section 2 of Article 28 which, I think, is very clear and unambiguous. That section of Article 28 states that the executive power of the State shall, subject to the provisions of this Constitution——

Professor Tierney

Subject to Article 46?

Mr. MacEntee

Subject, if you like, to Article 46 be exercised by or on the authority of the Government. What we are proposing in this Bill is that, so far as the regulation of the referendum is concerned, the executive power will rest in the hands of the Government. That is to say, our proposal is consistent, and, mind you, I am afraid it will be held that it is the only proposal that would be fully consistent with Section 2 of Article 28 because there we say that the Government shall determine when the referendum is to be taken. We do not give the Government, in that section, the power of determining that the referendum shall not be taken.

Professor Johnston

You do.

Mr. MacEntee

No. What we say in the section is that the Government shall determine when a referendum is to be taken. In constitutional theory, we are not conferring on the Government the right to say that a referendum on the proposal shall never be taken. In fact, I have pointed out to the Seanad that the only way in which a proposal to amend the Constitution can be finally disposed of is by reference to the people, and that no Government can kill a proposal to amend the Constitution once it has passed both Houses of the Oireachtas. Perhaps it might be possible by some such device as Senator O'Donovan has referred to: if it were possible to amend the Standing Orders in such a way as to wipe out all the anterior proceedings in both Houses prior to a Bill to amend the Constitution being deemed to have been passed by both Houses. That, maybe, is the only way one could kill it. Therefore, I say we have got to look at this thing as practical men. I presume that if a Government assumes responsibility for putting a proposal to amend the Constitution through both Houses of the Oireachtas, it does it having a practical constitutional end in view.

Mr. Fitzgerald

But must that proposal be put forward by the Government?

Mr. MacEntee

No. It only means that it must be initiated in Dáil Eireann. But then one must read the Constitution as a whole. The Senator must know that no Government can exist unless it has the confidence of Dáil Eireann. He knows that the Taoiseach has to be nominated by Dáil Eireann, and that the whole personnel and constitution of the Government is built around the Taoiseach. In my view it would be quite impossible to carry a proposal to amend the Constitution through Dáil Eireann, particularly against the opposition of the Government, because it would be a matter of primary importance upon which the Government would be bound to stand or fall. Once the Government was defeated in Dáil Eireann, then, according to our Constitution, the Taoiseach has either to resign or get a vote of confidence, and surely no House of the Legislature which was determined to secure an amendment of the Constitution would give a vote of confidence either to the Taoiseach or to a Government which was determined to resist that amendment of the Constitution. Therefore, we have got to look at this as practical men. It is, of course, theoretically possible to conceive a situation in which a proposal to amend the Constitution might pass both Houses of the Oireachtas and, at the same time, not be referred to the people. On the other hand, while such a situation is constitutionally conceivable, nevertheless, as a practical proposition, it is, I think, most improbable, because you would simply have a deadlock there, and it would have to be resolved by the dominant element in the Constitution: that is to say, by Dáil Eireann deciding to have a change of government.

I would like to say, in regard to everything which has been said here, that this section in the Bill, in the particular form in which it has been drafted, is not an attempt to give effect to any ulterior motive of the Government. The plain fact is that we have been advised that Article 46 does not make it mandatory to take a referendum, and at the same time, it does not impose, as I have said, on the Executive the function or responsibility of taking a referendum. We have, therefore, tried to get a practical way out of that difficulty. The form in which the section is drafted is, we have been advised, the most feasible and least objectionable way of getting out of the impasse. Therefore, as I have said, we have had no ulterior motive in drafting the section in this particular form. In the light of that advice, and in view of the arguments which I have used here, I do not think that any practical purpose would be served by substituting the word "President" for the word "Government", because under Article 13 the President cannot act against the advice of the Government. There is nothing in the Act or in the Constitution which would bind the Government of some future day to advise the President, in accordance with Section 8, say, as amended as Senator Tierney would want it to be amended. The Government could give perfectly unfettered advice to the President, as it would need to have regard to the circumstances of the time. There may be many reasons why it would be unwise and contrary to public interest to take a referendum on a proposal to amend the Constitution— for instance, if we were suddenly attacked or if the international situation had changed during the passage of a proposal to amend the Constitution through the House.

There are some circumstances which might make it conceivable that, even when an amendment to the Constitution had been adopted or was deemed to have been adopted by both Houses of the Oireachtas, it would still not be prudent, in the national interest, to have a referendum on that proposal. In these circumstances, the Government would have to advise the President and give unfettered judgement according to whatever was best in the national interest; and the suggestion that the Government would be bound to advise the President to operate in accordance with this section might be found to disappear. In any event, the main thing is that the Government exercises its executive powers in virtue of the fact that it has the support of Dáil Eireann, and if, in refusing to give that advice, it were supported by Dáil Eireann, there is no way in which it can be bound, particularly in view of Article 13, which makes it quite clear that the Government is unfettered in the advice which it may give to the President.

Professor Tierney

Is it unfettered to the extent that it can advise the President to break the law? Does the Minister lay it down as a constitutional principle that, whenever the Government thinks it is not in the national interest to obey the law, it may so advise the President?

Mr. MacEntee

That would depend on the circumstances of the time.

Professor Tierney

That would not be law at all.

Mr. MacEntee

I do not want to be driven into the position of saying that the Government could advise the President to disregard the law, but—where the terms of the Constitution are so explicit that, if additional powers are conferred on the President, those powers could only be exercised on the advice of the Government—the President could not proceed to act in accordance with Section 8 if the Government advised him not to do so.

Mr. Fitzgerald

I will not argue with the Minister as to whether there is not some devious motive in the Government's mind. I quite understand the position. The referendum in itself is a disastrous proposal, but it is in the Constitution, and in an absolutely iron-fast Constitution it is also a disaster to the people. The main interest is to get this Constitution as easily amended as possible and to have the minimum hindrances in it. When the Minister or the Government has been advised with regard to the interpretation of certain things, it does not necessarily follow that I will say "Yea" every time an adviser advises and say that he is quite right, even though the advice might have been quite good.

The Minister says an Article must be interpreted in the light of all it contains. He brings in the word "forthwith" in relation to clause 5 of Article 46, imposing something on the President. It is a simple business, that the President acts entirely without any intermediary legislation, according to that Article 5, which is complete and which requires no further consideration. The "forthwith" relates to time—that, certain things having happened, the President shall do something forthwith. If that which is to be done requires the setting-up of machinery — he does not require machinery to sign a document— obviously that word "forthwith" should not be there, as you need an intervening period to have the machinery set up. "Forthwith" means that, without any delay at all, the President shall do a certain thing.

Clause 2 says that a certain thing shall be done, but it is something involving an alteration by all the people in the country and it requires machinery. That is the only possible implication of the word "forthwith" there. You cannot say, the moment the Dáil and Seanad have passed a certain proposed amendment to the Constitution, that "forthwith" the people shall vote, as machinery is required.

When the original Constitution was passed, there was a law to the effect that a general election should be held not less than every six years. There had then to be passed an Electoral Act, inasmuch as the election had to be held every six years, laying down the conditions and mode of holding the election. Had the Government refused to pass an Electoral Act, the position would be that it would cease to be a legal Government at the end of six years and there would be no Government. Therefore, they would be breaking the Constitution by refusing to perform an act the performance of which was made necessary by something laid down in the Constitution. This clause 2, inasmuch as it says that, under certain conditions, a referendum must be held, has made it necessary that a certain Bill be passed, setting up machinery and conditions for the referendum.

The clause does not state a time and we agree that, as far as the Constitution is concerned, you cannot say that the referendum must be held within one, two or three months. There is, however, an undefined term after which you can say that the Government is implicitly breaking the Constitution by not having the referendum held.

There was such a case in the last year or so—I remember seeing it in the newspapers; it was the case of an ex-Fianna Fáil T.D.—in relation to the Army Pensions Act of 1933 or 1934. That Act did not say that the commission set up to consider those things must have brought in its findings with regard to every single applicant—there are about 60,000 of them—within a certain time. A case was taken in the courts in which a man said that it was against reason that the decision in regard to his own particular case had not been taken, and, if I remember rightly, the courts agreed with him. We admit that, as far as the Constitution is concerned, there is no time laid down as to when a referendum must be held. The Constitution says it must be held, but it does not say when, and its being held requires the setting up of machinery. When we come to this Bill, it says:—

"Whenever a Bill containing a proposal for the amendment of the Constitution shall have been passed or be deemed to have been passed by both Houses of the Oireachtas and the Government determines that such proposal shall be submitted by referendum to the decision of the people——".

The Minister says this is not giving the Government power not to have a referendum. I say it is, because this lays down, as a condition for the holding of the referendum, not merely that the two Houses of the Oireachtas shall have passed or be deemed to have passed a Bill containing a proposal for the amendment, but it also lays down that the Government must have determined that such a proposal shall be submitted to referendum. The Constitution has determined that such a proposal shall be submitted to referendum. That is already determined in the Constitution. The Government can determine exactly when it is going to be held, but implicit in that section there is a new condition. Whereas the Constitution says that it shall be held, this Section 8, sub-section (1), says implicitly that not the mere passing shall cause a referendum; it requires another condition, and that is, that the Government itself shall also determine that it ought to be submitted. The Government says: "This only happens when I determine it." If there is a binding law prior to that which says: "It shall be done" and you make a law which says: "It shall only be done when I determine it", you are actually breaking that prior law. With regard to the advice which the Government has got, I will say that, if the case put forward by the Minister in which he brings in "forthwith" in sub-section (5), Article 46, was the case put forward by his advisers, and if the advisers have told him that sub-section (2) does not make it mandatory that a referendum shall be held, and if they base that advice on the grounds of bringing in an interpretation of sub-section (5), I can only say that the advisers are so ill-advised that they clearly misunderstood not merely one sub-section of that Article but the whole thing. It is relating to certain circumstances.

Certain conditions are fulfilled; a man writes his name on a paper, which requires no more than a fountain-pen and possibly a pair of eye-glasses. In the other, a certain operation by every voter in the country is involved, which can only be done after the necessary machinery has been set up. That requires intermediary legislation, but the legislation must only be passed on the known fact that is laid down by the Constitution; once the amendment is passed or deemed to be passed by the two Houses, then a referendum shall be held. "Forthwith" means that the President must act in a week or so. This has not laid that down. I think, if you pass this Bill as it is, and the Government does not within a reasonable time submit a referendum to the people, it will be open to any one of us to take a case in the courts and ask for an injunction insisting that the Government shall carry out what is laid down by the Constitution. Government advisers or no Government advisers, I am satisfied that the courts will not say that the word "forthwith" in sub-section (5) means that the Government need never do it at all.

Mr. MacEntee

I want to amplify something which I said——

Mr. M. Hayes

Oh, can we not stop this? It is monstrous.

Mr. MacEntee

I want to put on record—in connection with a remark I made to the effect that the Government might not advise the President, if Senator Tierney's amendment were to be adopted, to discharge the functions which would appear to be conferred on him by this statute—that my reason for saying that the Government would have the right to do that was, first of all, that I think an amendment of that sort would be repugnant to Article 13 of the Constitution, Section 11 of Article 13, and would also be repugnant to Section 2, Article 28 of the Constitution, which says that the executive power of the State shall, subject to the provisions of the Constitution, be exercised by or on the authority of the Government. I think that in those circumstances, that is, that an amendment on the lines proposed by Senator Tierney would be repugnant to the Constitution, the Government would be quite entitled to advise the President to disregard it.

Amendment, by leave, withdrawn.

Professor Johnston

I move amendment No. 2:—

After sub-section (1) to insert a new sub-section as follows:—

(2) A Government which fails to submit such a proposal by referendum to the decision of the people within 12 months from the date on which the Bill containing the proposal has been passed or deemed to have been passed by both Houses of the Oireachtas, may not submit such a proposal at any later date to the decision of the people by referendum unless a resolution has been passed by each House of the Oireachtas authorising such submission, and must so submit such proposal if a resolution has been passed by each House of the Oireachtas ordering such submission.

When I came into the House to-day I was rather inclined to support Senator Tierney's amendment and withdraw my own, but, in view of the debate which has taken place and the arguments put forward by the Minister and others, I am now of the opinion that my amendment meets every reasonable case put forward by the Minister, and ought to be insisted on. It seems to me that, as the Referendum Bill now stands, the Government are claiming, in Section 8, a kind of negative power of legislation; in other words, they are claiming power, in circumstances in which a constitutional amendment has been passed by both Houses, to delay indefinitely, and if need be till Tibb's Eve, the submission of that amendment to the people, knowing that by such delay they are in fact negativing the decision of the Oireachtas. That seems to me to be a most improper procedure. The Government would presumably have gone through the motion of creating a constitutional amendment in co-operation with the Oireachtas, and then by this form of words they are claiming the right and power to make the whole proceedings abortive. That seems to me to be part and parcel of the essential function of legislation, and in this case the Government are usurping to themselves the sole right of legislating in that respect, a right which belongs to the Oireachtas and not to the Government of its own simple will and motion. I admit there is something in what the Minister says —that it might happen, after a Bill had passed both Houses of the Oireachtas, that circumstances were not propitious for submitting it to the people within the next few weeks. Anything might happen making it inadvisable that the Bill should be submitted forthwith, but at the same time I think the Constitution requires that the Bill should be submitted without unreasonable delay. In my amendment I suggest that the Government should have a year in which to decide on the opportune time for submitting that Bill to the people and if at the end of that year they have not so submitted that amendment then the whole thing would lapse unless, by the procedure I suggest, it was resurrected. The procedure of resurrection is, negatively, that the Government should not have the power after the lapse of a year to submit an amendment to referendum unless authorised by a resolution of both Houses of the Oireachtas and, positively, that the Government should have to submit the amendment to referendum if required to do so by a resolution of both Houses.

The principle of the amendment is that the power of legislation in this matter, as in all other matters, should be put formally and actually where, under the Constitution, it belongs, and that is fair and square on the shoulders of the Oireachtas, and that the Government, acting by itself, should not be able to do something which amounts in effect to a form of legislation. I do not see that in any way my amendment would lessen the real power and constitutional function of the Government but, in this very important matter of what amounts to an exercise of legislative power, it does require the Government at all stages to act in co-operation with the Oireachtas.

As the Bill now stands, it could happen that the Government might delay for a year or more submitting an amendment to the people and then might change their mind about the whole thing and decide never to submit that amendment to the people, but it is equally possible that the Oireachtas might change its mind too and it is altogether desirable that the Government should be under the formal constitutional and legal necessity of consulting the Oireachtas before it makes any such decision about submitting or not submitting an amendment to referendum. That is the whole point of my amendment and I think it deserves the serious and sympathetic consideration of the House.

Mr. O'Donovan

In discussing the previous amendment, I referred to this amendment. It seems to me to be reasonable and if we had it before the last amendment I think we might have been saved a good deal of Senator Fitzgerald's ramblings.

Cathaoirleach

The Senator should keep to the amendment now before the House.

Mr. O'Donovan

The amendment as it stands seems to prevent the Government from postponing the submission of a decision of both Houses to the people. It prevents the postponement for more than 12 months. I think that is reasonable. The Minister may explain the matter but it seems to be a reasonable proposition. It would save any difficulty about indefinite postponements. I instanced a case of such postponement. If the Government were to postpone or prevent the possibility of a referendum for six, eight or 12 months, this amendment would bring before both Houses the fact that it had been postponed and it could be reauthorised. I would like to say "a" Government. The speakers on the other side referred to the Government and seemed to assume that the present Government is going to last for all time. I hope it lasts longer than they would wish it to, but this amendment can apply to any Government we are legislating for in the future.

Mr. Fitzgerald

I may have misunderstood the last speaker. I got the impression that he was thinking that this amendment meant that the Government had to submit a referendum within a reasonable time. I may have misread the thing, but in a hasty reading what I understood by it is that the proposed amendment is passed by both Houses of the Oireachtas; the Government does nothing about it for a year; then, according to this amendment, nothing can be done about it. If the Government does not submit it to referendum within a year, it cannot submit it. It is not meeting the case I have had in mind all the time that it must be submitted. I may say quite frankly that my whole object, and that of anybody who cares for the government of this country—and I think the present Government will agree with it—is to simplify and make as feasible as possible, within the limits imposed, amendment of the Constitution.

Under this proposal, if it is not submitted within 12 months then it cannot be submitted unless further action is taken. I do not like that. I would like the Government to have the maximum latitude. A referendum is a ridiculous proposal really. We have got to have it, and it is full of dangers, and I can quite see a hundred circumstances besides what the Minister proposed in which it would be recognised as nationally harmful to hold a referendum. Therefore, I do not want to tie the Government too much but, supposing the Government has done nothing within a year, something else has to be done; it may not submit it then unless a resolution has been passed by each House of the Oireachtas authorising such submission and must so submit such proposal if a resolution has been passed by each House of the Oireachtas ordering such submission. Suppose it does not submit for another year?

Professor Johnston

The amendment would be dead in that case. You would have to re-enact the whole thing.

Mr. Fitzgerald

What you are doing is simply giving the Government more power to prevent the Constitution from being amended. That is what I understand by it. First of all, the non-Government or Deputies in opposition to the Government introduce and pass a proposed amendment. The Government can laugh at them. All it has to do is to sit tight for a year. At the end of that year the Deputies are still anxious to assert their power and to achieve a certain thing, and they pass another resolution asking that it be submitted. The Government laughs again and just leaves it there and then, according to Senator Johnston, the will or the decision of the majority of the Legislature has been quite simply thwarted by the Government sitting down and doing nothing. I am not misinterpreting it. Is not that so?

Professor Johnston

It would seem that my amendment would be as much contrary to the Constitution as the Government's proposal.

Mr. Fitzgerald

Not only that, it seems to me to be specially framed with a view to simplifying the course of the Government in thwarting the declared judgment of a majority of the Oireachtas. That is how I interpret it.

Professor Johnston

It certainly is a legitimate argument.

Mr. Fitzgerald

I would like to support any amendment which insists that once the majority of the two Houses have declared in favour of an amendment to the Constitution, the necessary steps must be taken to make it possible to have that amendment implemented. I recognise at the same time that if you tie the Government too much, and say that within X weeks or X months of such a resolution having been passed a referendum must be held, you are possibly going to make for trouble. The root of all that trouble lies in the Constitution itself, and we have got to do the best we can with it. I would be quite prepared to say that the Government must within 12 months submit it to a referendum or, if they see reason against that being done within that time, then they must get a resolution passed by the two Houses empowering them for another 12 months not to hold the referendum, and if it is not held then, they can bring in a resolution or some other form of legislation annulling what has been done by the Oireachtas. But I do think that once the Legislature has declared its judgment that the well-being of the people in this country would be best achieved by amendment of the Constitution, then it is nullifying the whole significance of the Legislative Assembly and putting everything into the hands of the Government, if you make it possible for the Government, by the simple expedient of not doing anything, of negativing the act of the Oireachtas. I have never pretended to be what is called a democrat, and, judging from certain earlier remarks by Senator Hayes, I disagree as to what people understand by the word "democracy", but it does seem to me that you have here a Legislature, to which the Government is responsible, and you are now, by Senator Johnston's proposal, going to make the Government so eminently irresponsible that it can negative the whole act of a majority of the Oireachtas by doing nothing. If that is the right interpretation, as I judge it to be, then I would be wholeheartedly against this amendment.

Mr. Robinson

In my opinion, Senator Fitzgerald has not been speaking to the amendment at all. The amendment deals with the question of the long finger. If an amendment of the Constitution is proposed and, when the 12 months is up, if the Government suddenly decides to go ahead with it, then they have got to do a certain thing, but there is nothing in this amendment that I can see that bears out Senator Fitzgerald's case at all. I understand they have to introduce the proposals before the 12 months is up, and that after the lapse of 12 months resolutions must be passed by both Houses before they can begin on that particular proposal again. I understand that is what the amendment is about and not what Senator Fitzgerald has mentioned.

Mr. Fitzgerald

The Oireachtas declares its judgment is that the Constitution should be amended. The Government sit down and do nothing for 12 months. What Senator Johnston says is that, far from making them implement the decision of the Oireachtas, they shall not be allowed to implement that decision after 12 months unless the Oireachtas re-enacts what it did before. That is my interpretation. So far as the amendment is concerned, the Government need not do anything for another year; there is no time indicated.

Mr. MacEntee

I would not like this amendment to be pressed. We are in a difficulty—I have said it in the other House and I say it here—in relation to this particular Article, but I do not think we are going to solve our difficulty by adopting this amendment. The real criticism which has been launched against the section in the Bill is that it prevents a referendum being taken automatically upon the passage of the Bill through both Houses. On the other hand, there is nothing in the Constitution which enables such a referendum to be taken automatically. We have interposed the Government as the active agent. As Senator Fitzgerald has pointed out, this amendment would mean that if, within 12 months, the Government had not taken a decision to hold the referendum, the Government could not hold it without securing the support of both Houses.

If a proposal to amend the Constitution was deemed to have been passed by both Houses—had been passed by the Dáil, but had not been passed by the Seanad, had been merely deemed to have been passed by the Seanad— this amendment would give the Seanad an absolute veto, once the 12 months had elapsed, upon the taking of the referendum. I think, therefore, that Senator Johnston's proposal would not solve the difficulty in which we find ourselves. I realise there is a difficulty and I would like the Senator not to press the amendment. I have been looking into Section 8 to see if we can find any way out of the crux which has arisen. I will not take the Report Stage of the Bill for another two or three weeks, with the consent of the Seanad, and, in the meantime, we shall see if we can do better.

Professor Johnston

My object was to make it easier for the Government to do what it obviously wanted to do in the Referendum Bill, but after listening to Senator Fitzgerald I am not at all sure whether I might not be taken as conspiring with the Government to violate the Constitution. In the circumstances, I shall be very happy to postpone this matter until the Report Stage.

Amendment, by leave, withdrawn.

Amendments Nos 3, 4, 5, 6 and 7 not moved.

Sections 8 to 16, inclusive, agreed to.

SECTION 17.

(1) Any member of Dáil Eireann may appoint a person (in this Act referred to as a personation agent) to attend at a particular polling station at a referendum for the purpose of assisting in the detection of persons committing or attempting to commit the offence of personation.

(2) A member of Dáil Eireann may appoint under this section, in respect of any referendum, personation agents at as many polling stations as he thinks fit, but no one member of Dáil Eireann shall appoint more than one personation agent in respect of any one polling station.

(3) A member of Dáil Eireann appointing under this section a personation agent in respect of a polling station shall, not less than forty-eight hours before the commencement of the poll, furnish in writing to the local returning officer in the constituency in which such polling station is situate the name of such personation agent and the name or description of the polling station in respect of which he is appointed.

(7) Where the polling day at a constitutional referendum is also the polling day at a general election, every person appointed under Section 22 of the Prevention of Electoral Abuses Act, 1923 (No. 38 of 1923), to be a personation agent for the purposes of such general election at a polling station in a constituency in which a poll is taken at such general election shall be deemed to have been appointed under this section to be a personation agent at such polling station for the purposes of such referendum, and the foregoing provisions of this section shall apply to him accordingly.

Mr. Goulding

On behalf of Senator Quirke, I move amendment No. 8:—

In sub-sections (1) and (2) on page 8, and in sub-section (3) on page 9, after the word "Eireann" wherever it occurs in those sub-sections to insert the words "or of Seanad Eireann".

Mr. MacEntee

I think this amendment is self-explanatory. The point was raised that we were not giving the Seanad equal rights in the matter. Now any Senator who wants to appoint a personation agent may do so.

Amendment agreed to.

Mr. Goulding

On Senator Quirke's behalf, I move amendment No. 9:—

In sub-section (7), page 9, line 28, after the word "election" to insert the words "the following provisions shall apply and have effect, that is to say:—

(a) the powers conferred by the foregoing provisions of this section on a member of Dáil Eireann shall be exercisable by any person who was a member of Dáil Eireann immediately before the dissolution which occasioned such general election, and

(b)".

Mr. MacEntee

This is to meet the point that was raised by Senator Mrs. Concannon on the last day.

Amendment agreed to.

Section 17, as amended, and Sections 18 to 44, inclusive, agreed to.

FIRST SCHEDULE.

29.—(1) Each member of Dáil Eireann for the constituency may nominate two persons to be present on his behalf at the opening of the ballot boxes and counting of the votes; any such member may nominate himself as one of the persons so nominated by him.

Mr. Goulding

On behalf of Senator Quirke, I move amendment No. 10:—

In rule 29, page 27, and after the word "Eireann" in line 43, and also in line 48, to insert the words "or of Seanad Eireann".

Amendment agreed to.

Mr. Goulding

On behalf of Senator Quirke, I move amendment No. 11:—

At the end of rule 29, page 27, to add a new paragraph as follows:—

Where the polling day at a constitutional referendum is also the polling day at a general election, the powers conferred by the foregoing provisions of this rule on a member of Dáil Eireann shall be exercisable by any person who was a member of Dáil Eireann immediately before the dissolution which occasioned such general election.

Amendment agreed to.

First schedule, as amended, agreed to.

SECOND SCHEDULE.

Question proposed: "That the Second Schedule stand part of the Bill."

Mr. Fitzgerald

With regard to the Second Schedule, I happen to know that, when the referendum was held on the present Constitution, in many places vast numbers of people did not fulfil the technical requirements. I have forgotten whether it was a matter of putting a cross or "Yes", but, whatever the people were supposed to do, many of them did the other thing. I now admit common sense would suggest that what a man means to do is to vote for it or against it, but the returning agents did not obey the law. The legal position should have been that unless a man voted according to the regulations laid down, then his vote should be considered invalid. If you could get hold of the papers that were counted and accepted as valid, I am not sure that you would not find a majority, according to strict law, were invalid votes. I should like it made abundantly clear that unless the people vote as the law indicates they must vote, their votes shall be declared invalid. I would not mind betting that if you were to select only the valid votes that were cast on the last occasion, you would find a majority of the votes deemed to have been valid were really invalid.

Mr. MacEntee

If the Senator looks at Section 16 (3) he will see: "Where a ballot paper is not invalid under any of the provisions of the next preceding sub-section of this section, such ballot paper shall not be invalid merely because it does not comply with the instructions for marking which are printed thereon, and in particular shall not be invalid because the mark "X" is not used in marking such paper, provided such paper is so marked as to indicate with reasonable certainty the will of the voter."

Mr. Fitzgerald

But who is going to do that?

Mr. MacEntee

The returning officer.

Mr. Fitzgerald

That would be giving an abnormal and exaggerated power to the returning officer.

Mr. MacEntee

He does that at every election.

Mr. Fitzgerald

His judgment ought to be guided. The Minister may be thinking in terms of Dublin, but when you are in the country you will find returning officers whose judgment, I do not think, you would give much for. The whole purpose of the law is to make the thing as clear as possible. Here, however, when you are giving these men power, you are allowing them to decide as to what is a valid vote or what is not a valid vote, according to the lines of commonsense, and, as the Minister said a while ago, people with commonsense often have quite different views.

Mr. Byrne

I think that that remark of the Senator with regard to returning officers is unfair. Most of the returning officers down the country have as much experience as those in Dublin.

Mr. Fitzgerald

I only said that the returning officers were not perfect.

Mr. MacEntee

The main thing is that the Bill provides that if the voter's attitude has been indicated with reasonable certainty in the appropriate column, the X mark is not an essential mark. If I put a "Yes" or even put a stroke, instead of an X, I think that, provided the mark falls within a particular column, the returning officer would be bound to accept the voter's choice as being indicated by the column in which the mark is placed, provided it is a definite and certain mark.

Mr. Fitzgerald

I agree that, having regard to the extraordinary capacity for human fatuity, you can put a "Yes" or an X opposite "I approve" or "I disapprove", and that it can be counted, but all sorts of other things may happen, and here you are going to leave these matters entirely to the judgment of the local returning officer.

Mr. MacEntee

Well, we have to start off with that, anyhow.

Schedules II, III and the title agreed to.

Bill reported, with amendments.

Cathaoirleach

When is it proposed to take the Fourth Stage?

Mr. MacEntee

In about four weeks' time.

Mr. Fitzgerald

If the Minister has amendments, I presume that we will receive them in the meantime?

Mr. MacEntee

Yes, though I am not undertaking to have an amendment, but only to look into the matter.

Cathaoirleach

Let us say, tentatively this day month. There can be consultations in the meantime for the fixing of a suitable date.