Vol. 26 No. 12
Government amendment No. 1:—
In page 4, in Section 8, 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 substitute instead the words "it shall be lawful for the Minister to"; and in line 46 to delete the words "such referendum" and substitute instead the words "the referendum on such proposal".
The amendments on the Order Paper are all to be taken together, and of them the amendment now under discussion is the principal one, Nos. 2, 3 and 4 being consequential on it. This amendment is intended to meet points which were raised in Committee on Section 8 of the Bill. It will be within the recollection of the House that, in the discussion on that section, it was suggested that the portion of it which referred to a determination to be made by the Government that a proposal for an amendment of the Constitution should be submitted to a referendum by the people appeared to give to the Government power not given by the Constitution. The amendment now submitted proposes to delete from Sections 8 and 9 all reference to a determination by the Government. It is, therefore, I presume, not necessary to discuss further the constitutional points which were raised here, because the main purpose of the Bill is to enact the law necessary for the regulation of a referendum, in so far as the law has not already been prescribed, or has not already been inscribed in the Constitution.
The present Bill, among other things, provides and must provide—if the taking of the referendum is to be regulated—for the appointment of dates for the various stages of the procedure, and in the Bill, the Minister for Local Government is taken as the appropriate Minister to appoint these dates. The Minister for Local Government is, as the House is already aware, charged with various duties under the existing electoral law, under Article 12 of the Constitution, and the Presidential Election Act of 1937, therefore, the proposal in the Bill is consistent with the powers, duties and responsibilities which the Minister already has. I think the amendments which we are now proposing will meet, as I said, the constitutional points which were raised in the discussion on the Bill and that the House may accept them.
I welcome the fact that the Minister has conceded the points several of us made here on previous stages of the Bill, and that he has, apparently, agreed that the section of the Bill as it stood, did run counter to the provision of the Constitution. The only thing that troubles me now about it is the phrase: "It shall be lawful for the Minister...." That seems to imply, even yet, that some liberty is being left to the Minister to decide himself whether or not a referendum shall be held, and if the Minister has such liberty, then, presumably, under the principle of collective responsibility, the Government has the liberty all the time, and we are back to where we were at the beginning. I am not clear whether the phrase as it stands in the amendment gives that liberty to the Minister, or whether he can proceed to postpone a referendum on a constitutional question though the Constitution itself makes it mandatory that the referendum shall be held in the appropriate time after the passing of the Bill. That is the only question I am still in doubt about, but, if the Minister has had the question examined, and if he has agreed that the constitutional points made here on previous stages were valid, I take it that he has satisfied himself that the Bill, as amended, will not leave such power in the hands of the Minister.
It seems to me that the Minister has not gone quite as far as Senator Tierney thinks, although there is no doubt that he has made substantial changes, because, in the section as originally drafted, the Government had power to determine whether or not a referendum should be taken. He has deleted that, and substituted a clause saying that it shall be lawful for the Minister to appoint by Order the day upon which the polling for the referendum shall take place. I entirely agree that the Minister should have power to fix the day. It is quite clear that there must be power in some Minister to fix a day and do all appropriate things for the taking of a referendum. It is also quite clear that the Constitution, with which I do not agree, does appear to prescribe on the face of it that a referendum must be taken. The Minister has been convinced by the arguments, and his law advisers, having taken second thoughts, have decided that they could not put into this Bill a statement that the Government shall determine whether or not a referendum shall be taken.
When you say in the Bill that it shall be lawful for the Minister to appoint a day, there is no machinery for compelling the Minister to appoint a day, and I am prepared to make the Minister a present of that. I do not know how you could put it. We had a rather similar case about the Initiative in Article 47 of the other Constitution. That Article contained the provision that the Oireachtas shall do certain things, but when I was confronted with the problem of dealing with the Petition, it seemed to me that there was no machinery for compelling Parliament to take action, and I doubt very much whether there is any machinery for compelling a Minister who has made up his mind that he does not want a particular referendum, or whether any machinery could be devised which would work satisfactorily to compel him to appoint a day. Perhaps the difficulty is not in the Minster, but in the nature of the problem itself.
I would be glad if the Minister will explain why he did not appoint a day. It does not seem to me that when you say that it shall be lawful to do a certain thing that it necessarily means it shall be lawful not to do it. Perhaps the Minister can explain that point?
It does seem to me that the Minister could argue that the Constitution is part of the ordinary positive law. Section 2 of Article 46 of the Constitution provides that when an Act is passed or is deemed to have been passed, it shall be submitted to a referendum "in accordance with the law for the time being in force relating to the referendum". Therefore, it seems to me that if the Minister allows undue time to go by, it would be open to a citizen to take action in the courts calling on the courts to order a Minister to do so. In other words, I do not see what machinery you have to force a Minister to do something he does not want to do.
This question is not at all without difficulties. I suppose I may begin by saying that my first construction of Article 46 (2) was that it was mandatory upon some unnamed person to take a referendum upon a proposal to amend the Constitution, once that proposal had been passed in both Houses of the Oireachtas. In the course of the discussion with the law officers and the Parliamentary draftsman, a very cogent case was put up to show it was not mandatory, and the Bill as finally drafted was on the assumption that it was not mandatory. Having listened to the discussion here, I again sought advice, and the position I am in is this: I think that Article 46 is to some extent incomplete. It should have prescribed some time limit within which a proposal to amend the Constitution must be disposed of one way or the other, either by rejection by both Houses, or having been passed by both Houses, approved of or rejected at a referendum.
At present there does not seem to rest in any organ of the State the power of final determination in regard to proposals which have not been submitted to the people. In order that that power of determination might be written into the Constitution, it would be necessary to amend the Constitution and to take a referendum on the amendment. The only thing we can do now is to enact machinery which will not be repugnant to any provision of the Constitution, and that is what we are doing here in the form in which the amendment is submitted to the House. That will, at least, set up machinery for taking a referendum. Undoubtedly, it does not make it compulsory on the Minister or the Government to take a referendum, but I suggest in that connection that we must wait on events, and if a proposal to amend the Constitution should at any time be passed or deemed to have been passed by both Houses, and if there is any undue delay in taking the referendum on it, then I think the proper remedy is as suggested by Senator Fitzgerald, that is, that the courts ought to be approached and asked to determine whether Section 2 of Article 46 is, in fact, mandatory.
That would be very expensive.
It might be. In the meantime, there is no way out of the dilemma except to provide machinery for taking a referendum under the Constitution as it stands at present. It may be that this problem will be solved by convention, that if a series of proposals to amend the Constitution emerge and are of sufficient importance to warrant a referenda being taken, a referendum will be duly taken upon each of them and that, after referenda have been taken upon a number of proposals, it will become a constitutional convention that once such proposals have passed both Houses they must, inevitably, be submitted to the people. The amendments before the House are, therefore, I think, the best way out of the present difficulty.
The worst may not happen; there may be no referendum.
I had hoped, on Report Stage, to have proposed an amendment dealing with postal voting, but that amendment was not acceptable. In fact, it was pointed out to me that it was so drastic that it, probably, could not have been accepted on any other Stage and that I should have had to try to have the Bill negatived on the Second Reading, which I had no wish to do. I do not think that the amendment was so drastic as was pointed out because my suggestion would have been that postal voting should be used only on those occasions when a vote was not taken at a general election and, if subsequent Governments adopted the view expressed by the Minister on Second Reading, that, inevitably, amendments of the Constitution must be a matter for Party politics, the probability is that the occasions on which postal voting would be used would be very few and far between.
I did not care to propose the amendment without consulting my colleagues and other Senators. I live in a very isolated district and travel daily becomes more precarious and, in the late winter, is more of an alarm than an excursion. So I lost whatever chance I had. It was suggested to me, quite unofficially, that the probability was that the Department would regard the whole scheme as entirely impracticable. I do not think that a people who have mastered the mathematical mysteries of proportional representation would have any greater difficulty in marking their card in the bosom of their family than in a polling booth. Notwithstanding precedents, I do not think that anyone would have the temerity to suggest that the Department would fail to devise an excellent scheme. Therefore, "totally impracticable" has a more sinister meaning, presumably. I do think that, unless the question of prestige or patronage or personality of the candidate was involved, there would be little likelihood of corruption. As we advance in government, the tendency is to become more conservative, but I think it would be a pity if we adopted as our slogan the good, old conservative motto: "Never do anything for the first time."
It would have been a good thing if, in this House, which has so often been accused of being reactionary, we could have discussed, on this Bill, a matter which, if not new, would have been a novelty in this country. If we had adopted postal voting, even to a limited degree, and had got over our troubles, we would not now, possibly, have so many vacancies in the Dáil and we would not be living in dread of a general election. It seems to me that the time to make experiments and try expedients is a time of emergency. We see the Dáil disintegrating, more or less, from week to week, without any effort being made to cope with that situation, and I really think the Government ought to consider whether it would not be feasible to fill vacancies in the Dáil by postal voting and take a chance on the question of trying to use corruption in elections. I do not believe that anything of that kind would take place. At any rate, it would take place only to a very limited degree.
