Seanad Éireann debate -
Saturday, 30 May 1959

Vol. 51 No. 2

Teachtaireachtaí ó Dháil Éireann. - Presidential Elections (Temporary Provisions) Bill, 1959—Second Stage.

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

Minister for Local Government (Mr. Blaney)

On Wednesday morning, the Tánaiste promised that the Government would consider what could be done to get over the difficulty arising from the fact that an election address which one of the candidates at the Presidential election proposed to send out to electors was found not to be eligible for transmission free of postage under Section 34 of the Presidential Election Act, 1937. The Tánaiste also indicated that the Government had been advised that a special Act of the Oireachtas would be required and that the Government were prepared to consider that situation. Following consideration of the matter by the Government, a Bill was introduced at a special sitting of the Dáil yesterday. The Bill as introduced included a Preamble which reads as follows:—

"WHEREAS, in the case of one of the candidates at the 1959 Presidential Election, a communication has been prepared for sending under the principal section and, because the communication relates to that election and to the 1959 referendum, it fails to comply with the requirement of that section that it should relate only to that election:

AND WHEREAS it is expedient to amend the principal section so that, at that election, any communication may be sent under that section notwithstanding that it refers to that election and to that referendum."...

The Government considered that such a Preamble was desirable in order to indicate the special circumstances in which this temporary measure was being enacted. As the Bill with the Preamble was not acceptable to one of the Opposition Parties, official amendments to delete the Preamble were moved on Committee Stage in order to meet the wishes of the Party concerned. The Bill, as amended, was accepted.

The provisions of the Bill are self-explanatory, save possibly subsections (2) and (3) of Section 2.

Subsection (2) is necessary in order to avoid the making of new statutory regulations by the Minister for Posts and Telegraphs. Under the present regulations, the candidate or his agent must certify that each communication contains matter relating to the Presidential election only. Subsection (3) will cover any such certificates already given by the candidate or his agent.

Prof. Hayes

The position of the Fine Gael Party in this matter is that this Bill is not necessary. Having taken extremely good advice on the subject, they came to the conclusion that the Bill was not necessary at all. However, the Government, on their side, having also taken advice, considered that some such Bill as this was necessary and, as the Minister has indicated, a Bill was brought into the Dáil yesterday with a Preamble to which exception was taken. Agreement was reached in the Dáil yesterday in a manner which I think it would be correct to say was extremely creditable to everybody concerned.

If I may take issue with the Minister on one small point of fact, I think it is true to say that yesterday in the Dáil, not only was one particular Party opposed to the Preamble which was subsequently taken out, but the leader of another Party suggested that that would be an excellent method by which to effect agreement. It was following that that agreement was effected. We think, however, that this Bill is unnecessary. The Government have, of course, a perfect right to act on their own advice and bring in a Bill of this kind. As the Bill in its present form is acceptable to us, we think the Bill should be passed.

Dr. Sheehy Skeffington

I should like to support the passing of this Bill. I agree with what the Minister has said. I disagree with what Senator Hayes has said, because I believe this Bill is necessary. It was suggested yesterday in the Dáil, a bit unworthily I think, that Deputy MacEoin's election address contained matter referring to the referendum on proportional representation and that that might be— these were the words, I think, used by the Tánaiste—either "a manoeuvre or a blunder". It is unworthy to suggest it was a manoeuvre. It is accurate, in my opinion, to suggest it was a mistake—a serious mistake, if you like.

It should not be said, and, if said, it should not go unanswered, that the candidate was actually trying to have his material held up in the post. That is just so much nonsense. It was a mistake and, from that point of view, I disagree with Senator Hayes. The law is quite clear; certain matter is legitimate under the free postal service given to candidates in the Presidential election. It may be said that such a mistake—a fairly big mistake—is not likely on the part of a Party like Fine Gael, which is sometimes said to be stiff with lawyers, but in practice lawyers do not always see things unless they are asked to look. If one asks for an opinion, one will get it. If one does not ask, they tend to be somewhat blind perhaps. And, indeed, if one asks the opinion of six lawyers, one often gets at least seven opinions. Therefore, I do not think it is at all unlikely that a Party like Fine Gael, though so strong in legal representatives, should nevertheless have made a mistake. I believe it was a perfectly genuine mistake, though I can understand their dislike now of admitting that they made such a mistake.

I should also add that there was perhaps, some excuse for this mistake. In that connection, I should like to remind the House that the tendency to confuse the issues on the Presidential election and the referendum on proportional representation was not brought about by Fine Gael. This confusion can be laid at the feet of the Government. There has been a mixing up of the two issues all along. The elections will be held on the same day and the Taoiseach's prestige is being used for the purpose of influencing the result of the referendum. That is not the fault of Fine Gael. I do not know whether that could be said to be a manoeuvre or a blunder, but it does provide some excuse for the confusion in the mind of Fine Gael between the two issues, arising out of the holding of the Presidential election and the referendum on proportional representation on the same day.

An Cathaoirleach

The Senator is now going very wide of the Bill before the House.

Dr. Sheehy Skeffington

I accept the Chair's ruling. Since this was a mistake—though a genuine mistake— on the part of Fine Gael, the Government were undoubtedly right to take action and to stop the issue of this election material once their attention was drawn to the nature of the material. What I should resent, what everybody here resents, I hope, is any suggestion that they should have connived at this because of the prestige of the person involved. I immediately say: "No". So far as the law is concerned, let us have the law applied, or amended, but not ignored. If circumstances warrant it, let us amend the law. That is what we are being asked to do in this Bill. Ignoring what happened is no solution, no matter who is involved. That is a basic principle to which we must all subscribe. It is a principle to which I am confident Deputy MacEoin himself would subscribe. Personal prestige is entirely irrelevant in this matter. The law must either be applied or amended. It must never be ignored. The Minister for Posts and Telegraphs was therefore quite right to act on the legal opinion given to him. He would have been wrong if he had ignored that opinion and connived at the sending out of this material. The Government were equally right in backing their Minister in this matter. There should be no suggestion that either the Government or the Minister should have let the matter slide, once their attention was drawn to it.

It is true that there may have been precedents. I should like to ask the Minister in that connection whether he is prepared to affirm confidently here and now that none of the election addresses of his Party in 1937 contained any reference to the referendum on the Constitution held at that time.

An Cathaoirleach

I hope the Minister will not indulge in a debate on that particular matter.

Dr. Sheehy Skeffington

I suggest with all respect that it is relevant to seek such information, since we are being asked now to pass this Bill. It is illegal obviously to use free postage for election addresses which contain references to other matters—in this case, the referendum on proportional representation. Possibly there have been precedents. There was also a referendum in 1937 held at the same time as the general election, and election addresses were similarly sent out then. I should be very surprised if there was no reference in those election addresses, on both sides, to the 1937 Constitution referendum. The analogy is an apposite one, I submit, and I should like to have the Minister's opinion as to whether he can confidently affirm that no member of his Party, at any rate, made any reference to the referendum on the Constitution in his election address at that time.

In my submission, then, the Government were right to stop the sending out of these addresses under the present state of the law. They acted rightly. It is only fair that one should also say that they are acting with intelligent generosity in introducing the present amending legislation. It would have been lamentable if they had refrained from doing this. They might have been technically justified in refraining. They are, however, acting with intelligent generosity, as I say, and it should be said, in proposing this amending legislation.

It should also be said that in agreeing to the removal of the Preamble, they are also behaving generously and well. I should like to hear that said also by Fine Gael, because the Government have acted well in this matter.

I support this Bill. I approve of the initial attitude of the Government in this matter, and I welcome the action of the Government now in meeting the situation suitably, happily, and generously.

Mr. O'Grady

Senator Hayes has stated that this Bill is not necessary. In other words, the Senator means matters should have been allowed to slide. The Government had legal advice and that legal advice made it clear that this step was absolutely necessary. What was the Minister to do? What arguments would we hear from the other side had the responsible Minister ignored the law? In the event of their candidate being defeated, would we not have arguments later that the Minister should be impeached for a breach of the law?

I am not a lawyer, thanks be to God. We all know the peculiar propensities of lawyers. If you fee a lawyer and you want him to tell you a certain article is black, he will be quite willing to do so. If you fee a brother lawyer and you want him to give you another opinion and to state that the article is white, he will be quite ready to give that opinion. That is the common impression created by lawyers on people all over the country.

(Interruptions.)

Mr. O'Grady

The more interruptions I hear the better pleased I am, because they may remind me of something I might be inclined to forget. This is a matter that both Houses of the Oireachtas should consider in order to know what the position would be if the Minister permitted a breach of the law or ignored the law. I agree with portion of what Senator Sheehy Skeffington said, that the law is the law, and so long as it is there, it should be enforced. If it is wrong, there is machinery to amend it, but while it is there, it is the duty of the Minister, not only to enforce it, but to see that it is enforced. I understand that is part and parcel of the duty of each Minister and that each Minister has sworn to do so.

Mr. L'Estrange

Why did they not enforce it in the case of the 17 prisoners who escaped recently?

Mr. O'Grady

I shall leave such constitutional matters to Senator L'Estrange. I am sure he is an authority on the subject and, upon my word, I would accept his opinion as quickly as I would accept the opinions of the leaders of his Party on such matters.

Mr. L'Estrange

You got a solicitor to say it was black and that is all you want.

Mr. O'Grady

You are getting a free advertisement and that is all you seem to want. I hope you have enough of it now.

Mr. O'Quigley

I share with Senator Sheehy Skeffington the distinction of being put in the category of sea lawyer by the Tánaiste, but I think even sea lawyers may disagree over matters of this type. I do not at all agree that the communication in question was in any way a breach of Section 34 of the Presidential Electtions Act, 1937. Let me put it this way. If in the election address which will be circulated by the Taoiseach, he thought it good politics to mention the revival of the Irish language, that might have nothing whatever to do with the Presidential election. I cannot see that there would be anything wrong in an exhortation to the people to save the Irish language and help to revive it and there is a great deal of controversy about that matter at the moment. I understand we have a commission sitting on it. It does not seem to me that there is anything wrong in Deputy MacEoin expressing his views about P.R. which, as matters stand at the present time, is the constitutional law of the country. It is part of the Constitution until it is changed in a referendum, so I see nothing wrong with a presidential election candidate expressing a view upon a matter of that kind.

Dr. Sheehy Skeffington

Would the Senator read the relevant portion of the address?

Mr. O'Quigley

I did not. I have only seen it in the papers and, from what I have seen, I cannot see that it in any way conflicts with the requirements of Section 34 of the Presidential Elections Act, 1937. When a Bill is being introduced to amend this section, the Government might have gone the whole way and relied upon the discretion of people who have succeeded in getting a nomination for the Presidency as to what they would put in their communications to the electors. If we elect somebody as President of the country—the most important formal position under our Constitution—we should be able to rely upon his discretion and integrity and give him full freedom as to what he will do and say in his election campaign. I think it quite deplorable that, on the introduction of a Bill of this kind, there should be a suggestion that a presidential election candidate, who may well become the next President, was guilty of a breach of the existing law, and I entirely agree with Senator Sheehy Skeffington that it was deplorable to say that was a manoeuvre by him to get a certain amount of publicity.

Senator O'Grady said there was an obligation on the Government, once they got legal advice, to abide by it, and either to refuse this Presidential election address or to introduce this Bill, and he said that while the law was there, it must be respected and applied. I entirely agree with that, but I say there has been no breach of the law in this case. I regard it as nothing but rank hypocrisy on the part of the Government to say that there has been a breach of the law.

This Bill is heavy with hypocrisy. I have here a copy of the Constitution and, as I have said before in this House, this Constitution was enacted 22 years ago—22 years ago on 1st July next. It provides that courts will be established under that Constitution, and 22 years later, the courts are still established under the Constitution of Saorstat Éireann and the Government are now busy amending their own Constitution which they have not implemented 22 years later.

An Cathaoirleach

The Senator is now going very far wide of the Bill.

Mr. O'Quigley

I have made my point and I just want to say that it is in striking contrast with the hypocritical declaration by the Tánaiste and reported in today's Independent that the Government cannot set aside the law. As regards Senator O'Grady, I do not know whether or not he has ever had contact with lawyers, but lawyers like evedybody else, have consciences of their own and souls of their own to save. Doctors differ and doctors are not out to make a “hames” of somebody's body. Lawyers and courts differ, too, and one court will take one view while another court will take the reverse view. Simply because lawyers hold different opinions, it is quite improper for Senator O'Grady to come in here and suggest that lawyers will give whatever opinions they think they are being paid to give. It is quite improper and wrong for Senator O'Grady to adopt that attitude. Even sea lawyers do not do that, and I am quite sure Senator Skeffington will agree with me on that.

Mr. Blaney

This certainly is rather a unique position in which to find oneself. I have come here with a Bill for which I have no love, for which I never had any love and which I like now less than I ever did. The Bill is here purely and simply, now that the question has been referred back, to help a candidate who made the mistake of sending out an election address containing something that was objected to on legal grounds and the transmission of which through the post without postage being paid the Minister for Posts and Telegraphs had no option but to refuse.

The Preamble to the Bill which I read to the House in my remarks on Second Reading, really, as I say, set out the situation and in addition, was designedly put in there in order that it would be clearly understood that this was an ad hoc measure and that no precedent was being created. Having done that—and we felt it should be done in order to safeguard that situation—we further went right over the top to meet the Opposition Party. I say Party in this case because the assertion that the leader of another Party, as Senator Hayes alleged this morning took issue with this Preamble being contained in the Bill is not my recollection——

Professor Hayes

I was there and I heard it.

Mr. Blaney

I know the Senator was there; I saw him. My recollection of it was clearly this—the leader of the Labour Party, to whom I take it the Senator was referring, in a conciliatory rôle suggested, rather like pouring oil on troubled waters, that since it seemed to be held that there would be a grievance if we did not do this, or possibly that we would place the other candidate, the Fine Gael candidate, at a disadvantage, in order to remove that grievance we bring in this Bill. To my clear recollection—whatever else Deputy Norton may have said—he went on to ask the House, if this was really a grievance we were remedying, why should we leave in the Preamble to which they were objecting, thereby leaving the Fine Gael still with a grievance.

Professor Hayes

Did Deputy Norton not say that the Preamble was written with a bayonet, rather than with a pen?

Mr. Blaney

He also said what I said.

Eamon Ó Ciosáin

Could we not get the official record?

Mr. Blaney

Apart from that, I want to make it completely clear that we have been falling over ourselves to facilitate Fine Gael.

Mr. O'Leary

No one would believe that.

Mr. Blaney

And we are still doing it in this Assembly today.

Eamon O Ciosáin

They do not appreciate that.

Mr. Blaney

Having done that in one House, we come to the second House and find the same attitude being adopted, so that there is no real appreciation of the fact that we have gone out of our way to bring in a Bill to legalise what is illegal, and what was illegal, so far as the law of the land was concerned. Whether there are a dozen lawyers' views expressed against our opinion, or against the opinion of our legal adviser, we do and must take that legal adviser's view, and that is what we did in this case in rejecting these notices or election addresses, which were being sent out.

We go on from that and we find some Senators here today, Senator Sheehy Skeffington amongst others, I think, talking about confusing the issues and that we in Fianna Fáil brought about the confusion, and that that confusion confused Fine Gael so far that they can be excused for their mistakes in putting out an election address for Deputy MacEoin which, in fact, is in contravention of the law.

Mr. Carter

Babes in the wood.

Mr. Blaney

I shall accede to the view that this is a necessity but I do not agree that the confusion was created by Fianna Fáil, that the bringing about of the two elections on the same day was due to by Fianna Fáil. There is no Assembly knows better who was responsible for that than this Assembly, when this House held up the Bill.

Mr. Burke

We were exercising our constitutional right.

Mr. Blaney

That prevented us having the referendum on an earlier day clear of the Presidential election.

Mr. O'Leary

You were beaten badly.

Mr. Blaney

The two dates were brought close together by Fine Gael opposition and now to attain complete confusion, if it is possible, we have an election address going out containing election material dealing with both issues. That is the situation in regard to the election address on behalf of the Fine Gael candidate, but here is the instruction sent out to the Fianna Fáil election agents down through the country before there was any mention of this matter. It states "In regard to free postage, the Presidential election bulletin which will reach you during the next week is the only document circulated that can go through the free post. To obviate the danger through carelessness of referendum material being put into the envelopes, it is advised to have all envelopes filled under proper supervision at constituency headquarters." That is our effort to maintain and keep within the law.

The confusion brought about by the Presidential election and the referendum being held on the same day, which was caused by the Opposition, is being added to by this address, in an effort to confuse the electorate and to prevent them knowing what they are doing in the hope that they will leave things as they are. Senator Sheehy Skeffington asked was there any precedent in 1937 when two such elections took place, one a general election and the other the referendum to pass the Draft Constitution. I do not know of any precedent in that category. Not having been given notice of that point, I shall not confidently state there were none, but I shall say this: it is one thing to refer in an election address to some issue of national importance but it is another thing to exhort the people, in that election address, to vote a particular way in the referendum now taking place, and that is the real objection. That is what I take issue with in relation to the election address we are now discussing.

The suggestion has also been made —it was made yesterday by the Leader of the Opposition and it was made this morning by several other people taking their cues from their leaders—that this Bill was unnecessary. If it was unnecessary, it is amazing that the House should yesterday have accepted the Second Reading. When Deputy Costello was talking of its being unnecessary, and he put it quite nicely in his opening statement that it was unnecessary and quoted his own view and the views of some of his friends, he made the case in the same speech that the matter could be rectified by a very small amendment of the existing law and the existing section. He suggested that by deleting a certain word, they would overcome all their difficulties. How can he make a case for its being unnecessary and two minutes later, say that by deleting a certain word it could be rectified? He suggested an amendment after categorically stating his opinion, and the opinion of other legal people, that no amendment was necessary.

The question is here made quite clear and, without going into the legal aspects and getting legal advice, the ordinary reading by the ordinary man is such as to give him to understand that there was a clear contravention of the law in this case. Very magnanimously, we have come along to try to rectify that situation, to avoid the situation that might have arisen and would undoubtedly have been exploited in that being the Government, and being the nominators of the only other Presidential candidate in the field, it would be held and said throughout the country, if we did not amend this law that we were, in fact, preventing the candidature of the Fine Gael candidate getting a fair run. In fact, there was submitted to the Dáil office a motion in those terms, that we were discriminating against the candidature of Deputy MacEoin, the Fine Gael candidate.

We have gone a long way to avoid that situation and, in fact, we have given to the Fine Gael Party an advantage over the Fianna Fáil Party, in both these contests, in that we have already, as I have read out, made our arrangements for circulating the election address of the Taoiseach, one of the candidates in the election, in which there will not be any exhortations to vote in regard to the referendum in any particular way and we have also had our arrangements made, which cannot now be changed, wherein only that election address will go out to the electors under free postage. Therefore, if, in this election address, there is an exhortation or view expressed to persuade the electorate to vote a particular way in the referendum, Fine Gael have got that advantage and we in Fianna Fáil are giving it to them, and I do not like that, as I have said already.

A Senator

You cannot afford it.

Mr. Blaney

We may be able to afford it but it certainly does not please me. I am here to get a Bill through this Assembly which is entirely to the advantage of the Opposition Party and, if there is any trouble about it, the Opposition Party are making the trouble now, that it is not necessary and that they do not need it. If you do not, you can do with it as you did with the Third Amedment of the Constitution Bill, namely, leave it over for three months.

Question put and agreed to.

Agreed to take remaining Stages today.