Referendum Bill, 1994: Second Stage.

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

Wexford): This Bill represents a further step in the programme of reform of electoral law which commenced with the enactment of the Electoral Act, 1992, and was followed by the enactment of the Presidential Elections Act in 1993. The objective of the programme of reform is to update each branch of electoral law and to provide for uniformity of practice between the different codes as far as practicable.

Existing law in relation to the taking of a referendum is contained in eight enactments, the principal of these being the Referendum Act, 1942. The 1942 Act was enacted in order to provide a statutory basis for the holding of referenda, as envisaged in the Constitution. The first referendum on a proposal to amend the Constitution was held in 1959 and a further 15 have been held in the period since 1959.

It can be seen that the referendum code is an important element in our electoral law and the trend in the past quarter of a century has been towards relatively frequent recourse to the referendum mechanism. In this context it is essential that all aspects of the law relating to the conduct of a referendum are maintained in an up-to-date condition, having regard to the benefit of the experience of operating the system in practice. It is also desirable that referendum law be kept in line with corresponding provisions of other branches of electoral law.

A similar approach has been adopted in the case of this Bill as was followed in the case of the Presidential Elections Act, 1993. The provisions of the Electoral Act, 1992, relating to Dáil elections which are common to polls generally are applied with the necessary modifications. These provisions relate, for example, to postal and special voting, polling on islands, procedures in polling stations as well as arrangements for counting the votes and electoral offences. The provisions will as far as practicable be identical for all elections and referenda. In this way procedural discrepancies that have developed between different codes over the years will be eliminated.

The Bill introduces a number of worthwhile improvements to aspects of referendum law where omissions and deficiencies have been identified in the course of the operation of existing law over the years. For example, under existing law a recount of votes at a referendum may be demanded in individual constituencies but there is no provision for a complete recount of all the votes cast. At a referendum voting might appear clear cut in individual constituencies but the overall vote, when aggregated, could be quite close. In that situation the only recourse for a person wishing to question the accuracy of the count is by means of a referendum petition to the High Court.

The Bill addresses this and includes a provision to enable the referendum returning officer to order a complete reexamination and recount of the votes cast in every constituency, if he or she considers it necessary. This procedure will be in addition to the existing right of any agent present at the count in an individual constituency to demand a recount of the votes in that constituency. The new provision could be an important mechanism to remove doubt in the case of a close result in certain circumstances and could obviate the necessity for a referendum petition with its associated delay, inconvenience and expense.

The Bill repeats the requirement in existing law that the proposal which is the subject of the referendum must be stated on the ballot paper by citing the Bill containing the proposal, using the short title. The Bill will, however, enable the Minister for the Environment to provide, by order, for the entry on the ballot paper of a descriptive heading to indicate the subject matter of the proposal.

Where the polls at two or more referenda are taken on the same day this arrangement would assist electors in distinguishing between the separate ballot papers which would otherwise look rather similar. Descriptive headings were included on referendum ballot papers in 1978 and again in 1992 when a number of referenda were taken on the same polling day. On each occasion special legislation was enacted to provide for the inclusion of headings on the ballot papers.

An order providing for headings on ballot papers, pursuant to this Bill, will require approval in draft by a resolution of both Houses of the Oireachtas. It is envisaged that an order would be considered only when two or more referenda are being taken together. This provision is in addition to the requirement in existing law that different coloured ballot papers must be used where two or more polls are taken on the same day.

Under existing referendum law an elector unable to vote at his or her normal polling station because of employment by the local returning officer may be authorised to vote at another polling station in the same constituency. The provision restricting the exercise of this facility to the constituency for which the elector is registered is being removed. In future it will be possible to authorise an elector employed by a local returning officer to vote in the constituency in which he or she is so employed. This will bring the referendum law into line with the Presidential Elections Act, 1993.

The law in relation to the questioning of a referendum by means of petition is being tightened up. Under existing law leave of the High Court to present a petition must be sought within ten days of the publication of the provisional result; under the Bill this is reduced to seven days. The period allowed in the Bill for the presentation of a petition after the grant of leave by the High Court is three days; under existing law a petition may be presented within 21 days of publication of the provisional result. The objective of these changes is to provide adequate opportunity for challenging the result of a referendum while, at the same time, ensuring that the coming into force of a constitutional change, which may be urgent, is not unduly delayed.

The Bill also effects a number of changes which, while minor in themselves, together constitute worthwhile improvement in referendum law. An example of the kind of change involved is that the consent of the Minister will no longer be required for the appointment of a deputy local returning officer or for the selection of a counting centre which is outside the constituency concerned.

As Senators are aware, the Constitution provides for two types of referendum. Article 46 provides that every proposal for an amendment to the Constitution, having been passed or deemed to have been passed by both Houses of the Oireachtas, shall be submitted by referendum to the decision of the people.

Article 27 provides for the reference of a Bill, other than a Constitution amendment Bill, to the people by referendum. This is referred to as an "ordinary" referendum, although in practice such an event would be out of the ordinary and no such referendum has yet taken place. Under that Article, a majority of the Members of the Seanad and not less than one-third of the Members of the Dáil may jointly petition the President to decline to sign and promulgate as law any Bill which is deemed to have been passed by both Houses of the Oireachtas on the grounds that it contains a proposal of such national importance that the will of the people on the Bill ought to be ascertained. The President may, after consultation with the Council of State, decline to sign the Bill unless and until the proposal has been approved by the people at a referendum or by a resolution of the Dáil following a general election. The Constitution confers a pivotal function on the Seanad in this regard.

No so-called "ordinary" referendum has been held since the enactment of the Constitution and the likelihood of the circumstances contemplated in Article 27 occuring appears rather remote. Nonetheless, it is considered appropriate that the procedures in the present Bill should apply to "ordinary" as well as constitutional referenda.

As I have indicated, this Bill represents a further stage in the continuing programme of electoral law reform. It is essentially a consolidating and updating measure with the opportunity being taken to effect desirable amendments and, as far as practicable, to bring procedures in the case of each category of poll into line with one another. I consider the Bill to be a worthwhile contribution to the wider process of making the law generally more relevant and more accessible not just for practitioners but for the ordinary citizen. I hope the House will facilitate its swift enactment into law.

The Bill before the House today provides a comprehensive mechanism for conducting a referendum. It provides for different stages in a referendum, including the appointment of polling day, the taking of the poll, the counting of votes and the possibility of a petition being made to question the result of the referendum. The legislation replaces the Referendum Act, 1942, and it deals with constitutional referenda as well as those held in pursuant of Article 27 of the Constitution, which is termed an "ordinary" referendum. This Article applies to a Bill other than a Bill containing a proposal to amend the Constitution. As the Minister said, under Article 27 it is often forgotten that the Seanad has a special responsibility in this matter.

A majority of Members of the Seanad and not less than one third of the Members of the Dáil may jointly petition the President to decline to sign and promulgate as law any Bill before it is referred to the people for judgement. The Minister also said that under Article 27 an "ordinary" referendum has not taken place since the establishment of the Constitution in 1937.

People often ask if we need a new Constitution. The structures created under the present Constitution, the Parliament, the Executive and the courts, have served us well and have given us no reason to look for change. The Constitution requires amendments from time to time. It is right and proper to have legislation in place before putting such amendments to a referendum. That is the measure before the House today. Those who talk about replacing the Constitution often do so on the grounds that it does not conform to their ideology. They should remember they need to persuade not only a debating society but the people because the people's consent to change must be forthcoming before we replace the Constitution.

I welcome a number of measures in the Bill. Under existing law a recount of votes may be demanded in an individual constituency but there is no provision for a recount of all votes cast and, as the Minister said, this might be necessary in a tightly contested referendum. The Bill addresses this point and includes a provision to enable a referendum returning officer to order a complete re-examination and recount of all votes cast in every constituency, if he consider it to be necessary. The Bill also provides for the entry on the ballot paper of a descriptive heading to indicate the subject matter of the proposed referendum.

There has been a problem with recent referenda in that a certain amount of confusion has arisen. In some cases the electorate was so confused it did not know for what it was voting, while in other cases it did not vote at all. I hope information on future ballot papers will be simple and uncomplicated so that the public will understand what it is voting for or against. Reading the Bill, I was struck by the fact that grounds for a referendum petition are limited. It would appear they are limited to electoral offences, such as the obstruction of the referendum, failure to conduct a referendum in accordance with the Bill or a mistake or an irregularity likely to affect the result of the referendum. If the information — and this is unlikely — in the descriptive heading on the ballot paper was misleading, it should be included as grounds for petitioning a referendum.

I welcome the provision for the transfer of votes. A person employed by a local returning officer may be authorised to vote at a polling station other than that at which he or she is employed, even if it is outside his or her constituency. I hope people who work at polling stations will be made aware of this so they may use their franchise.

As regards the entitlement of people to vote in referenda, I welcome the proposal for postal votes for the handicapped as in general elections. This postal vote also extends to the Army, the Garda Síochána, Army personnel serving abroad and the Diplomatic Corps. We may ask why this does this not extend to Irish citizens living abroad. Recently arguments have been made about votes for emigrants. I understand and accept there are difficulties in relation to this in view of the fact that the Constitution states that seats must be apportioned in accordance with population. This requirement does not hold for referenda.

An Irish citizen working abroad for a temporary period or a student studying abroad — my son has been studying international relations at Kent University for the past four years and he takes an interest in Irish affairs — is required, under Article 9 of the Constitution, to show fidelity to the nation and loyalty to the State. If an amendment is being made to the Constitution in his or her absence, he or she should have the opportunity to express his or her view. Difficulties relating to general elections and local elections for those living abroad do not relate to referenda. A mechanism should be in place to enable Irish citizens living abroad to vote.

Constitutional lawyers will say the Constitution is the people's document and it does relate to this or the other House. When we amend the Constitution, all citizens, whether living here or abroad, should be given the opportunity to express their view on these matters. The purpose of the Bill before the House is to amend and consolidate the law relating to the taking of a referendum. I welcome the updating of the law on this matter and I wish the Bill a speedy passage through the House.

I welcome the Minister and the Bill to the House. This is the third occasion in two years this Minister has been in the House to present a reform package of electoral law. We should update our electoral Acts. This is a continuation of the process started in 1992. We are talking about reform of the Acts which cover referenda and it is appropriate that it would be brought into line with electoral law dealt with in the Electoral Act, 1992, and the Presidential Election Act, 1993.

The changes that are proposed here are welcome. To some extent they are necessary but we should consider them in the context that we are one of the few countries in Europe that has a written Constitution. That in itself gives an opportunity and a responsibility to the people to have their say in matters pertinent to them. That became apparent when we dealt with the Maastricht Treaty and the reform of the Treaty of Rome. We were one of the few countries in the 12 member states of the European Union whose people had the opportunity to make a decision whether to accept the amended Treaty of Rome.

We are privileged to have that opportunity and it goes back to our forefathers and the founders of this State. They thought it appropriate that we should have a written Constitution. Many other democracies in Europe which do not have such a written Constitution are at a loss because they are not given the same opportunity that is presented to the Irish people. The Irish people take referenda very seriously and their response must give encouragement to legislators when it comes to amending the Constitution.

There are a number of welcome provisions in this Bill. It is appropriate that this Bill does not deny a person working in a polling station the right to vote, irrespective of whether they are working in their own constituency and that is right and proper.

The opportunity for a total recount needed to be addressed and it is addressed in this Bill. While there was provision for a returning officer to have a recount in a constituency, there was no opportunity for an overall recount other than through the High Court. That has now been remedied. This is an important step because it eliminates any question later that the result of a referendum may not have been free and fair. The opportunity is there now for a recount of the overall result. That is important.

The Bill is short but necessary. It is part of an ongoing process of electoral reform. I welcome the Bill which will have the support of the House. I hope it gets a speedy passage through this House. We, as legislators, are affording the people an opportunity to be more involved, so that they will have a better opportunity under the Constitution and under the law to offer their opinion in referenda. I commend the Bill to the House.

I welcome the Minister to the House and I welcome this important legislation updating the law relating to referenda. I was very glad when, under the Electoral Act, 1992, the necessity for those who had to have special voting arrangements no longer had to have a certificate saying they were of sound mind before they could vote. If that rule was applied to all of us heaven only knows where we would be. If that notion had caught on some people might have wanted to stop others voting as they wished.

According to this Bill it seems that the medical profession will again be involved. Naturally, I am pleased if any employment is made available for doctors but I wonder about the wisdom of the loose provision of section 31 (2). This provides that if, within seven days before polling day, one can satisfy the local returning officer, by reason of a physical illness or disability, that one is not in a position to go to the usual polling station, one can go to another. I presume as this is in the same constituency it could not make too much difference. However, it is a vague way to start giving medical certification. I admit a proprietorial interest in this area; I wonder who will be giving certification for those who have a physical illness or disability if not a doctor. I am sure the Minister will be able to explain that.

Senator Doyle raised a point which I support. I am sorry we have not begun to address the problem of postal votes. This problem has been satisfactorily resolved throughout the EU, and recently we saw it working for South Africans living in this country. Like Senator Doyle, I have children who have been abroad for short periods on work experience and were anxious to have voting rights in their own country. It seems foolish that we do not try to address this problem properly.

It is one of the topics on which I get most correspondence — being one of the University Senators with a large postal vote I am bound to be one of those targeted. There is a growing body of young people who are not in Ireland at present but see their future here, which resent that they cannot vote here. A referendum Bill would have been ideal legislation to begin to deal with this. We are constantly told these young people are not up to date with the views of political parties but a referendum, we hope, would be easier to explain, and this Bill would have been an ideal instrument to extend the postal voting franchise. We need to tackle this problem as soon as possible.

Senator Doyle also made the important point that the wording for a referendum has to be simple. It could not be stated in the Bill but it should be implied. I was involved in the 1983 referendum and I opposed the amendment to the Constitution because the wording was not clear. Sadly, this proved to be true when the wording of the amendment was eventually interpreted in the Supreme Court and many people found that their interpretation was not upheld by the Supreme Court. Of course, this is how the law is interpreted.

I warn against resorting too frequently to referenda because it is hard to get clarity in them. Proceeding by legislation is of greater importance. On another occasion Senator Gallagher spoke about the possibility of having photographs of candidates on ballot papers. This does not come within the scope of this Bill but it might be worth examining for ordinary elections in the future. It would be sad if, in a country which should have a completely literate population, we had to resort to this practice. The Minister has wisely introduced in this Bill a section which will ensure that those who cannot read the ballot paper can be suitably assisted and the Minister stressed that confidentiality is required by those giving this assistance. Rather than looking for photographs, perhaps we should look for further adult education so there will be no possibility of any of the electorate not being able to read a ballot papers.

If photographs are added to the ballot paper, some candidates might have an advantage over others.

On another occasion Senator Henry made the point that Senator Gallagher might do well while those people like myself might do badly.

I said I was sure there was no self-interest on the part of Senator Gallagher.

I welcome this Bill and hope it will have a speedy passage through this House. Far be it for me to hold up its progress.

It is interesting, reading between the lines of this Bill — it always is in a ministerial brief — to see the thinking behind certain aspects of it. I could not help being struck by the language used on the ordinary referendum. I confess a blissful ignorance on this section of the Constitution. Indeed, I am grateful to the Minister for having elucidated that Article 27 provides this extraordinary addendum to the democratic process. However, the sideswipe the Minister's remarks give to this Article would seem to bear out the reality. While the theory is fine, there seems to be some obtuse reason, at least according to the Department, for including Article 27 in the de Valera Constitution of 1937. The Department seems to give the impression that it would be preferable if it was not there, but it cannot be ignored unless it is removed by a referendum. Because of that, it extended the provisions of this Bill to Article 27 in the unlikely event of their provisions ever seeing the light of day, which is sad in a way.

My first reaction to this would have been similar to the language of the Minister; what is the point of Article 27? I am reluctant to remove pillars of democracy in a democratic State, irrespective of how obtuse, uneventful or remote their consequences. It always reminds me of those who say that if, in the morning, there was a referendum to abolish the Seanad there would be an overwhelming majority in favour of it. This comment is not only made outside this House but also by some of our colleagues in the other House. I usually reply by suggesting that if a similar referendum was held to abolish the Dáil, there would be an equally substantial majority in favour. This would also apply to the Presidency not because of the incumbent, but because some perceive it to be, like the Dáil and Seanad and other paraphernalia of the State, surplus to requirements. If that were to come to pass that would lead to dictatorship and a one person Government. Then we would be up the lake without a paddle in our canoe.

Obviously, the thinking behind Article 27 was that it was a further mechanism in the checks and balances of Government. Ultimately, the people could decide on it if they were asked. I am cynical when I see remarks — they were picked up by some of my colleagues — that the Seanad holds a pivotal role. There is an inbuilt Government majority in this House and it is highly unlikely the entire Government majority will join one third of their colleagues in the other House — who would presumably be made up of the Opposition — to petition the President to the effect that a Bill is not acceptable. Having laboured the point and squeezed whatever I can out of it, I will let the matter rest other than to say that I am delighted Article 27 is in the Constitution, and long may it be so.

Regarding the culture of referenda, it is surprising that from the enactment of the Constitution in 1938 through to 1959 the people were not required to express any opinion on the Constitution. This was a period of placidity in Government. The people were happy, although they certainly were not well fed if one recalls the hungry 1940s and the dour 1950s. However, the various Governments of that time did not go to the people and, ironically, the first occasion on which Mr. de Valera decided to hold a referendum on the Constitution was in respect of a proposal to change the voting regulations to the use of the single transferable vote——

It was the single vote, not the single transferable vote.

The Senator is correct. The referendum was called to introduce the first past the post voting system and to alter the multi-seat constituencies. I am grateful to Senator Doyle for reminding me of this as the era was well before my time. However, I recall the famous Norton amendment which, if it had been accepted, might have changed the pattern of voting and the complexion of Government.

Mr. de Valera, a towering figure, introduced the referendum after his Government decided it was right and proper to change the voting system. Given the complexity of multi-seat constituencies, the implications it has for elected Members and the political instability of the early 1980s, there are still traces of this policy in the Fianna Fáil Party which must be addressed at some stage.

The people appeared to be naturally suspicious of the Government and they threw out the referendum proposals in 1959, but it was an important watershed as it changed the political culture. From 1959, democracy went down to the people. Over the past 30 years, people say — especially those working in constituencies dealing daily with people's problems and with communities and voluntary organisations — that there has been a growing awareness, coupled with greater access to education, and a greater demand for a say in how they are governed.

People now want to know not only that a Government is elected and proposes and disposes in the Dáil and the Seanad, but they want a direct input into the legislative process. This is why the lobby system has become more effective and has attained a higher profile in recent years, as any Member of either House will testify. People have come together in groups at voluntary level and they lobby in a way which makes them an essential part of the business of Government.

In this context the concept of the referendum is central. It is an essential cog in the democratic process. Since 1959 Governments have responded to this changed culture because there were 20 years of silence between 1938 and 1959 but in the following 30 years there has been a plethora of referenda, and rightly so.

Successive Governments have gone to the people on a number of occasions on major issues and I have no doubt that future Governments will return to the people whenever they feel the need to consult their views on any aspect of the Constitution. I welcome this healthy development, and I say this with a certain amount of smugness considering what happened yesterday in the Mother of Parliaments — as they style themselves — in the UK. The British politicians, both on the Government and Opposition sides agonised over whether they should hold a referendum. There was much tut-tutting emanating from the right wing of the parties on both sides to the effect that referenda are not part of the British tradition. Those who lecture the rest of the world on parliamentary democracy, democratic government, on government of the people, by the people for the people, are wrestling with their conscience over whether they should have a referendum on a momentous issue.

This is an issue which this country will no doubt face in 1996 or 1997 with a referendum because of the implications which will flow from the review of the Maastricht Treaty in 1996. This does not pre-empt any decision which the Minister or the Government will take on the holding of a referendum, but on the basis of the precedents set regarding European legislation on issues such as the Single European Act and the Maastricht Treaty, there will be a referendum on what flows from the intergovernmental conference in 1996.

This country should feel proud that it has, within the Constitution and its parliamentary democracy, this important mechanism for going to the people whenever the Government of the day feels it necessary or whenever the groundswell coming from the people demands that the Government provide the mechanism of a referendum. In this respect, Senator Henry referred to her involvement in a referendum in 1983. I hope the Government will grasp the nettle and put the abortion issue to the people in a referendum and ask for their opinion.

As regards giving Irish citizens living abroad the postal vote, I would be more enthusiastic about giving emigrants the vote in Dáil and Seanad elections than in referenda. Perhaps the Minister might clarify the use of the words "referendum", "referendums" and "referenda". I do not suggest that he consult an English dictionary because I became so confused yesterday listening to the debate in the House of Commons where reference was made to referendums——

They were wrong. Unlike us, they are not classical scholars.

I knew the answer was simple and I thank Senator O'Kennedy for his advice.

Now that the former Tánaiste, Mr. Wilson, is no longer a Member of the Oireachtas, somebody has to represent the tradition of classical scholars.

What is the plural of "referendum"? Is it "referenda" or "referendums"? "Referendums" does not sound right.

The correct word is "referenda".

I would have thought the correct word is "referenda".

To my surprise and irritation yesterday, the word referendums was referred to by Mr. Major, Mr. Smith, Mr. Ashdown and other politicians in the House of Commons.

The Government should move speedily towards a resolution of yet another lobby, that is, the vote for emigrants. This is not an issue that is concentrating minds in the same way as unemployment or the economy. However as a former emigrant I empathise with the point of view held on this issue by people living in the UK and the USA where there is a continuous flow of news coming from this country.

In this respect, RTE, the national broadcasting station, has extended its daily coverage so that now, through the wonders of telecommunications, people living abroad, and Irish people especially, can tune into national radio from Ireland 24 hours a day, on the Astra Satellite throughout Europe and late at night on the ASC 1 Satellite in North America. In consequence of Ireland getting onto the information highway in recent years — to use that great buzzword — an increasing number of our emigrants are aware in a more immediate way of what is happening in this country. No longer do they have to rely on the emigrant letter to fill them in on local news or on the local newspaper, which used to arrive several weeks later. The situation no longer exists where they never obtained the national newspapers or heard the national radio network. The Irish abroad hear debates on the issues of the day at the same time as we do. People abroad want to feel they are part of the Irish nation in a practical sense.

The argument has moved on to the point where I do not believe the Government's position is sustainable. I know it committed itself in the Programme for a Partnership Government to votes for emigrants and I ask it to speedily address this issue, and this Bill is an ideal opportunity to do so. As I said, I am more enthusiastic about providing votes for emigrants in Dáil and Seanad elections than in referenda. As a result of public comments I made, which were reported in theIrish Post in the UK, I received correspondence from Irish citizens who have been living in the UK for a generation and have been assimilated there, although they are proudly Irish. They voiced the opinion that they should not be given votes in referenda because they do not pay taxes here. The UK is their adopted country and is where they live and work. While they have emotional ties to Ireland, are anxious for its well being and have more than a passing interest in what happens here, they stop short of demanding that they should have votes in uniquely Irish affairs.

I appreciate that the Government has addressed this issue but I stop short of enthusiastically endorsing the right of Irish citizens abroad to vote in referenda to change the Constitution, whereas I am more enthusiastic about allowing them to vote in Dáil and Seanad elections. However, this is splitting hairs. In principle, I am an enthusiastic supporter of the right of Irish citizens abroad to have the vote. This is an opportunity for me to tease out the issue of votes for emigrants. I am sure the Minister will refer to this in his reply. I am grateful for the opportunity to discuss aspects of an interesting and fascinating Bill, which will go a great distance to consolidate the many areas of electoral law which apply to referenda and which have developed since the foundation of the State. These are now contained in one Bill and will make the operation of referenda much easier in the future. I heartily endorse the Bill.

I welcome the Bill, especially in the light of what Senator Mooney said about the supremancy of authority in our Constitution deriving from the people. There is no more effective way, perhaps no other way, of ensuring that the authority of the people is respected and vindicated than by referendum. Article 6.1 of the Constitution indicates very clearly and without qualification that: "All powers of government, legislative, executive and judicial, derive, under God, from the people..." The source of the powers exercised by us in this House, the Government and the Judiciary all derive from the people. The article continues: "...whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good."

This clearly establishes two or three basic elements in the construction of the Constitution and the exercise of powers by the Government, Parliament and the Judiciary. The powers of those in office for the time being, that is the powers of the Government, Members of the Oireachtas and the Judiciary, derive from the people. They have no right to power or claim to exercise it without respecting and recognising that those powers derive from the people, who are the source and fountain of all power. This is the fundamental characteristic of our Constitution. It is nothing if not consistent in this. Significantly the first referendum held in respect of the powers of the people was to enact and adopt the Constitution itself; this was enacted by the people in a referendum on 1 July 1937. This has always been the major and consistent plank on which the authority of the State is exercised.

Article 6.1 clearly outlines the ultimate right of the people "to decide all questions of national policy, according to the requirements of the common good". It is not accidental that it says the people have the right "in final appeal, to decide all questions of national policy, according to the requirements of the common good". This underlines a number of important elements. In the event of the questioning of the exercise or administration of power by any one of the executive functions of the Constitution, whether it be the Executive, the Judiciary or Parliament, the Constitution clearly states that it is the right of the people, on final appeal, to decide all questions of national policy and that this must be done according to the requirements of the common good. It does not say according to the requirements of the State. Sometimes the State in its current form may be confused about what is the common good. It is important that this power of the people not only remains with them but is respected so that where on occasion there may be conflict within the organs of the State. the final appeal to the people is supreme.

In normal law the Supreme Court is the final court of appeal, particularly in determining whether the laws passed by the Legislature are in accordance with the Constitution. The Supreme Court is not the final court of appeal in relation to the Constitution and the powers of the people. Under Article 6.1 the people are clearly the final court of appeal. It is important that we recognise that the people should be consulted on any major issue where there is a dispute between the laws we pass and their exercise.

Referenda did not begin with the 1937 Constitution. It was a very important element of the original Constitution of the Irish Free State, Saorstát Éireann. The relevant Article gave the right to the people to initiate referenda — a right which did not pass on to the people under Bunreacht na hÉireann. It is important that under the 1922 Constitution of Saorstát Éireann, the people had a right to petition a referendum in a fashion which does not exist in the 1937 Constitution. That was not a deliberate omission in terms of trying to exclude the right of the people from the 1937 Constitution——

I think it was very deliberate at the time.

It is worth nothing that the authority of the people was recognised before the 1937 Constitution. The Minister's Bill intends to reform the exercise of that power to prevent any unnecessary delays, obstructions or whatever and to ensure that the outcomes of referenda, being the decision of the people, are seen as conclusive. There is nothing more conclusive than the decision of the people.

We have had 16 referenda since 1959. To the best of my knowledge, all but two of those 16 were adopted by the people. Significantly, the two which the people refused to adopt were both in relation to the electoral system. The first, which has already been referred to, was the 1959 referendum on the voting system which proposed the single seat non transferable vote system. I recall it as I had my first vote at that time. The second was the 1968 referendum on the voting system.

There were two referenda that year.

That is right, there was one on the formation of Dáil constituencies. I presume that both would have fallen together. However, the hook on which the coat was hanging, so to speak, was the referendum on the voting system.

That referendum followed a constitutional committee which was set up by the late Seán Lemass in 1966. I was privileged, as a young Member of this House, to be invited onto that committee by Seán Lemass with other young Members of the Oireachtas — Deputy David Andrews, who is now the Minister for Defence, Deputy Bobby Molloy and the late Deputy Don Davern.

I recall the request, which was a very special privilege, which I received from the late Seán Lemass, and I presume that he wrote in the same terms to the other young men at the time; he said that it would be our function to try to operate the institutions of State and to make them efficient and effective in accordance with the needs of the time. He thought it was appropriate that we, the young men, — and remember that we were watching the passing of a great generation at that time on all sides of the House — should take a hand in the reform of the Constitution for the generation in which we were going to be acting as legislators or Ministers, as the case might be. The proposals of that committee still bear very close examination.

Hear, hear.

I want to refer in particular to our electoral system, which was touched upon earlier by Senator Mooney. I greatly regretted that the recommendation which we made in 1966 for single seat constituencies was taken out of context by the Minister of the day, who did not have regard to the sequence in which we put our recommendations. We did recommend single seat constituencies but we always gave our recommendations in our order of preference and I can recall clearly, without ever referring to the text, that our first preference was for the single seat transferable vote system.

I mentioned young men who were on that committee, but I am glad to say that it was not left to the decision of immature young men because we had some very senior figures, whom I think one could call statesmen, on that committee to guide us. The late Seán Lemass himself, after he retired as Taoiseach, came onto the committee and played a very active and truly objective role. Members on all sides were privileged to be in the company of someone who had been there at the formation of the State and showed an objective approach towards the renewal of our Constitution.

We also had the former Chief Justice, long time Deputy and Minister, Tom O'Higgins, who is now a judge of the European Court of Justice. We had Declan Costelloe and the late George Colley, men whose commitment and standing was beyond any question or reproach. We had the late Deputy Gerard Sweetman, a man of really vigorous approach to the authority of the State, unyielding in his assertion of the obligations on all and not a man who compromised on issues where he felt we had an obligation. In addition, we had some very experienced TDs such as the late Minister, Jim Tully from the Labour Party and the late Deputy Seán Dunne, who was probably one of the most experienced Members of the House. There was also the then Senator Eoin Ryan on our side, a distinguished former Member of this House. If I have left out one or two people it was not deliberate.

The significant aspect was that we reached a consensus on a range of issues — not that what we said would be cast in stone, far from it. However, that is still worth referring to and the kind of consensus which we reached then could be a guide, at least, for the kind of consensus we could now put in place.

Returning to the issue of the single seat transferable vote, we on that committee knew that as recently as 1959 the people had decided that they did not want a straight vote system. In that knowledge, we were hardly likely, seven years later, to make a recommendation that we go back to the people again and say that they had made a mistake and should change their minds. I want to make it quite clear that that was not our intention. However, it was our intention that the single seat transferable vote system, which we now know as the by-election system, would be put to the people. At the time there was a mood throughout the parties, certainly in the all party constitutional committee and some Deputies and Senators understandably had reservations about it. In the 28 years since then — and I have been involved all that time — my view in relation to that proposal is stronger now than it was then.

Proportional representation is an essential feature of our Constitution and I do not disagree with that. However, the current operation of the multi-seat proportional representation constituency has brought about a situation where Deputies who are elected by the people to represent them in Parliament in the framing and passing of laws spend most of their time doing quite the opposite. They spend most of their time preoccupied by competition with their party colleagues. The effort, frustration and tension that has been a feature of public life in Ireland since then need never have been and in my view should never have been.

Whatever about competing with the members of other parties, our role is not to devote most our energy to competing with the members of our own party. Under the Constitution all power derives from the people. Having presented ourselves to the people and been endorsed by them, we spend our time in competition and, in many cases, in conflict with each other. That is hardly what was intended by the Constitution. The experience we have had over the years suggests otherwise.

Some may say that the current multi-seat constituency is the fairest system. On balance the result more or less reflects, for accidental and other reasons, the percentage of first preference votes cast. A number of us have been Members of the Lower House. Is it not clear to all who would be honest about it that most of the energy is dissipated because of the unnecessary and sometimes unnatural tension and opposition that is created by the current system? It does not always stop with Deputies. It extends to their families, friends and supporters. Deputies themselves, because of a reasonable involvement in the exercise of politics, may take a mature approach to their running mates and try to keep on an even keel. I would like to think that I tried to do that over the years. However, when one's supporters identify the enemy, it is often——

From within.

——the enemy within.

And behind.

Tensions are then generated. Meetings of our political organisations are not quite as active as they were some years ago in any of our parties, but one still finds that the real tensions and arguments do not relate to that which we are elected to do but rather to the vindication of one member of the party over another.

The duplication of effort in relation to issues and problems of individual citizens is not only a matter of record but was worthy of recording in the epic tales of Ireland. Some of the epics of Irish politics relate just to that issue. Depending on the size of the constituency, one will find three or four different people competing with each other getting letters in and letters back. I will not spend too much time on this issue, but this Bill concerns referenda and how they are conducted.

An Leas-Chathaoirleach

We have gone well into the electoral system and I ask the Senator to return to the Referendum Bill.

The people were consulted on this issue on two occasions to endorse proposals in relation to a system of election which they saw was not fair. However, the system I am suggesting would be both fair and balanced and more in line with what we try to do than the present system. There will be parties and individuals who, for one reason or another, do not find that acceptable.

The system I am suggesting would accommodate the need for stable Government and facilitate change at the appropriate time as it would record the swings in the electorate. It would be of great service to the Irish people. I have always had that view and I hold it more strongly now. I will finish my point at that.

An Leas-Chathaoirleach

Thank you, Senator. I gave you quite a bit of scope on that point.

I appreciate that. I would like to refer to Articles 2 and 3 of the Constitution. Referendums have been proposed on this issue from time to time. I see, a Leas-Chathaoirleach, that your assistant is getting a little uneasy but I will not spend too much time on this matter.

A number of points must be borne in mind in the context of suggesting a referendum on this issue. The consequence of a failure would be disastrous. I am not the only person who holds that view. The consequences it could have for Nationalists in the North of Ireland would give rise to unnecessary tension. I am not suggesting that we hold such a referendum.

It is important that we make it clear to our fellow Irishmen who are of a different tradition, the Unionist people of the North of Ireland, that Articles 2 and 3 do not represent a claim by us on them. They cannot because we have no right to make such a claim. I hope that in any reconsideration of constitutional issues that one thing would be quite clear. The provisions which state:

Pending the re-integration of the national territory ... the laws enacted by the Parliament shall have the like area and extent of application as the laws of Saorstát Éireann and the like extra-territorial effect.

can never be represented as a claim by us in the South on those in the North.

An Leas-Chathaoirleach

I have to ask the Senator to come back to the Bill. We are now talking about Articles 2 and 3 and the Senator should be fair to the House and to the Chair.

No one has more respect for the Chair than I.

An Leas-Chathaoirleach

The Senator should not have referred to an official of the House.

I apologise for any offence caused. The same official has not only earned and enjoyed my respect but, more importantly, that of everyone in the House. I did not in any way intend to cast any aspersions.

An Leas-Chathaoirleach

I ask the Senator to come back to the Bill.

I have finished that point. However, a Leas-Chathaoirleach, you would have to recognise the reality which, unless you and I live in different worlds, is that this issue is constantly being discussed as being appropriate for referendum. I have just given a reason why I do not think this would be the appropriate way to pursue the matter at present and I have also given an explanation of what is and is not involved. Surely that is relevant to the issue of referenda which the Minister has introduced in the legislation.

Senator Mooney made a number of other suggestions; however, I do not have sympathy for one of them which is the need for a referendum to give emigrants the vote. I have sympathy for emigrants and their fundamental rights given that they were born here, or even if their parents were born here, but, having regard to the nature of the Irish diaspora, the majority of those who are entitled to citizenship are actually resident outside the State. That is no reflection on them, much less rejecting their rights or entitlements from us as the Legislature.

It is clear that, although we would wish them to have all their rights and entitlements — as some of Senator Mooney's correspondents suggested to him — while they are not resident or paying tax here, even though it is not their fault and they are concerned about it, the overwhelming majority of them would outnumber those who cast their votes at home. It would not be feasible to have the termination of Government or the Members of Parliament vested in a majority who are outside the country, even if it was practical to administer such a referendum, general election or by-election.

One feature of the Irish experience, more than any other nation, would be overlooked, the diaspora of the Irish people. This is reflected in our literature and our dán deoraíochta. It has been a special part of our culture for generations and it would be overlooked if we suggested that the huge majority should determine current arrangements here. I would support every other provision we could make to recognise emigrants but not in terms of direct votes for them.

I wish to refer to another important matter Senator Mooney raised. I make my case on the basis of Article 6 of the Constitution which states that the people have the right "in final appeal, to decide all questions of national policy, according to the requirements of the common good". If there has been a contentious issue in recent times in relation to referenda, it was the court decision in the X case. This has come back into the news recently as a consequence of the criminal trial of the man at the centre of the case. Incidentally, I was wrong earlier and I am glad to correct myself. There was another occasion on which a proposal to amend the Constitution was defeated, the referendum on the dissolution of marriage in 1986. It would be remiss of me not to note that as a significant decision of the people. It bears thinking about and I will refer to it later.

Regarding the referendum to the Eighth Amendment to the Constitution, the right to life of the unborn, I expressed strong reservations at the time about the need for that provision. I also expressed strong reservations about the wording. I do not say this with a great degree of comfort or with the benefit of hindsight because my colleagues, both in the parliamentary party and in Government, will recall my views. I said the outcome, which we eventually faced, was likely in the light of the interpretations that could be put on that provision which states:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

Whether one tried to maintain a balance, as in those terms, it invited the type of consequence about which we now know, with some degree of disruption to and tension in the body politic. Nevertheless, it is significant — this opinion is shared by many and clearly by Senator Mooney — that there is an overwhelming view among the people that it was never intended that the Constitution would give a right to abortion. I strongly believe that and the power of the people to which I referred with regard to Article 6 is there again to be vindicated in the event of anything that would breach this fundamental right to life.

It is so fundamental that it hardly needed to be stated in the Constitution. It is the most fundamental right of all. One cannot be a citizen unless one has the right to life. It is supreme and anterior to all the elements that are written into the Constitution. It was not within the contemplation of the framers of the Constitution that there was ever a need to include it. However, it has now been called into question through the consequences of the 1982 Bill and 1983 referendum. I agree with Senator Mooney that before anything else is contemplated that might in any way undermine the fundamental right to life, it is appropriate and essential to go back to the people from whom all the powers derive under our Constitution. It is not for us as legislators, the Government as the Executive or even the Supreme Court as the judge of our exercises, to determine the views of the people. The people alone will determine that.

It is particularly appropriate on this day when we celebrate — although we have strange ways of celebrating such a major event — the sacrifice of those who gave us the right to be where we are now, our 1916 leaders who were executed on this day almost 80 years ago. They would and could never have contemplated a Constitution or laws which would provide for the infringement of the most basic right of all, the right to life. When they made a sacrifice with their lives, it certainly was not to ensure that the decisions we would make later would allow us to terminate that fundamental right of others. We do not recognise and celebrate that event in everything we do. As one who was involved all those years, I feel a certain sense of guilt and shame about this but, in any other country, an event of that nature would be celebrated as it should be. It would be recognised as a measure of total service and commitment to the people and as a measure of the ultimate sacrifice but we are somehow apprehensive and apologetic about it.

An Leas-Chathaoirleach

While I might agree with the comments of the Senator, we are discussing the Referendum Bill, 1994. We have drifted quite far from the Bill.

We are back to 1994. The Leas-Chathaoirleach will understand that if we start in 1994 without recognising from where our authority derives we are not only blindfolding ourselves but handcuffing ourselves as well. I do not think any of us would start talking about an issue from today when the Minister himself, quite properly, referred to the number of referenda that have been held, the reasons behind them, their purpose, and the need to update the actual provisions for holding them.

An Leas-Chathaoirleach

We cannot stray into all the other different areas relating to why referenda were held or what their purpose was. The Senator has done that and I would appeal to him to come back to the Referendum Bill.

We will not stray much further, let me assure you of that, a Leas-Chathaoirleach; you will not need to appeal. If the Chair would trust my discretion, judgment and sense of responsibility to the House, I can assure him that I will not dwell on it further. I would prefer not to take issue with the Chair.

When one hears people saying constantly that we should have a referendum on this matter to enable the view that we really hold to be inserted in our Constitution, I think we should listen because the Constitution says they are the ultimate power. It is well known that I view the right to life as a very sacred, untouchable right. Some Senators share that view and others may have different views. Like Senator Mooney, I hope that before too long we would see that opportunity given to the people.

As Behan might have said, there is a darling way of introducing change and proposals, and a darling word which is the word "reform". So when proposals are introduced to reform, anyone who questions the proposals to reform is immediately, by definition, against reform. Who is against reform? I am not. However, you can reach any conclusion from a false premise. If you start from a false premise that certain changes are reform then you can reach certain conclusions. One of the great fallacies of logic is that you can reach conclusions which demonstrate that what you were talking about in the first place was not reform at all. For instance, in relation to reform of the Constitution and our laws relating to marriage, we had one decision not long ago in a referendum. In any event we have in our law divorcea mensa et thoro. You can, of course, terminate an existing marriage. I know there are hard cases but hard cases make bad law.

Our fundamental obligation is to regulate for society at large. Having had experience of living in other countries where the reform that we are being asked to accept is a feature, I do not accept that the condition afterwards is anything like as healthy for society as the condition before the alleged reform was introduced. I do not accept that the rights of citizens, children — who were not consulted about the decision of individuals who we are told are free to make their decisions — should be of secondary importance so that two mature adults can exercise their rights. They may be their rights in the terms they wish for their own personal reasons to exercise them but I do not accept that as an argument. I respect the other view and if we come to it here I hope we can have a mature discussion.

However, before any proposals for reform are introduced, it would be important to put the consequences of that proposed reform — pro and con — before the people as clearly as any other proposal we are being asked to consider. I hope we will have the maturity to do that and not see this as being a troglodyte approach on the part of people who question it or an irresponsible approach on the part of those who promote it. Rather we should look at the issue in an objective fashion and then come to a reasoned conclusion.

I know it is here but I have still not traced the relevant Article; I thought it was Article 26 in the original Saorstát Éireann Constitution. If I am right I think it was 80,000 people——

Seventy five thousand

——75,000 people were empowered to bring about a referendum. We do not have that power under the current Constitution, Bunreacht na hÉireann. Because it reflects the supremacy of the people and the power that derives from them, it is a power towards which I would have a certain disposition.

In Britain, where Westminster talks about itself as the Mother of Parliaments, occasionally they want, rather belatedly, to refer certain issues to the people when they find that exercising their own powers is uncomfortable. I hope I am not being too critical but in my view it is not because they really want to refer to the people but it is because it may help to solve political tension within the House of Commons or within the governing body. That was never to be the purpose of a referendum. It was not meant to be used in that sense.

The proposals in the original Constitution of Saorstát Éireann had a lot to commend them in that connection. However, insofar as we are now operating under the Constitution, Bunreacht na hÉireann, it is important that we would acknowledge that and never let us forget it. I have been privileged to be in Government and I have also sat on the Opposition benches. We are all in Government for a specific time only. No matter how long we have been there or what power we exercise, none of us should overlook the fact that we are custodians and, at best, trustees of the power that is firmly placed by this Constitution in the hands and authority of the people. That is why I welcome this opportunity to make some observations on referenda and related issues.

As this Bill is mostly concerned with the efficient administration of a referendum it has my blessing, but I thought it would be appropriate to make a few observations on some issues that are being canvassed regularly in relation to referenda. I thank you for your patience, Sir. We are all privileged to have the benefit of efficient and courteous services in the House from the staff.

An Leas-Chathaoirleach

I fully accept that. The Senator got to cover a wide area.

A little travel is a good thing.

I compliment Senator O'Kennedy on a wide-ranging and discursive address. I am glad the Leas-Chathaoirleach showed tolerance and maturity in allowing the discussion to range over the fundamental issues which were raised by Senator O'Kennedy.

I welcome the Bill. It is non-controversial legislation. It updates and deals with a number of matters which required attention. It is a sensible Bill and bears the hallmark of the accuracy we expect from the franchise section of the Department of the Environment. I compliment the officials of that section. They do a difficult and sensitive job extremely well. Their integrity is accepted by all parties and groups. This is an area about which people might feel resentful if there was any doubt or question about the highest standards being in place. We are familiar with the rows that are generated by close counts or disputes at elections, even — or, perhaps, especially — at party conventions where the count can be quite close or where there might be doubt about the procedures to be followed. This Bill reflects the highest standards.

I regret that it is not sufficiently innovative. There is a strong case to be made for, at least, a discussion on the possibility of weekend or Sunday voting. That was not within the remit of the Bill. We would like to see ways of updating the register of electors, especially in the period before and election when people can, through no fault of their own or anybody else, find they are not on the register. This creates a great sense of frustration. We saw that frustration in the days when we were allowed to stand outside polling booths. Perhaps, in the age of computers, the Department might take an ongoing interest in that issue.

I listened with interest to the discussion between Senator Mooney and Senator O'Kennedy on the use of the words "referendum" and "referenda".

I have discovered, belatedly, that Article 48 was the article to which I referred.

I refer the House to a standard book on the subject of referendums —"Referendums" by Austin Ranney and David Butler, published by the American Enterprise Institute about 12 years ago.

What would the Americans know about referenda?

I know this book very well because I wrote the chapter on Ireland. However, much has happened in that area since then. These learned academics attempted to resolve whether "referendums" or "referenda" was the correct usage. Like all good economists, they came down on both sides of the question. Their definitive conclusion is that both words are acceptable and correct. Although Senator O'Kennedy, as a classicist, prefers to use the word "referenda", I can relieve Senator Mooney's worries. Both words are acceptable.

Listening to Senator O'Kennedy's reflections on the historical antecedents of the referendum, I was struck that the referendum question was almost glossed over in the debates on the 1937 Constitution. If our Constitution was intended to be rigid and not easily amended, it was inevitable that referendums would be held in order to change it. Curiously, However, nobody in 1937 thought it would be a much used device and little attention was paid to it. There was nothing in the past experience of those who drafted the Constitution to lead them to believe that the referendum would become an extraordinarily important instrument in the determination of public policy.

What has happened since then is the inevitable consequence of having a rigid Constitution which has to withstand changes in society, the unpredictability of the Supreme Court in finding rights within the Constitution which might not have been there or might not have been seen to be there by those who drafted it and the momentous decisions which confront people. The referendum has come from a position of obscurity in the debate of 1937 to occupy today a central place in Irish political life. For that reason the legislative framework within which the referendum is operated must be as careful and correct as this Bill attempts to be.

We are lucky to have the referendum mechanism. We have held referenda at some definitive moments in our history. It was to the advantage of this country and to public life in this country that the people were asked to vote on the most important issue to confront them since independence — our entry into the EEC. The fact that the people were consulted and the size of that vote and subsequent votes on EC and EU issues since then has removed from public debate any question or doubt about what we believe is our destiny as a nation. It has prevented us from getting embroiled in the incredibly divisive and often dishonest debates which are taking place in British politics today. The debate in Britain is often not about the European question — there are hidden agendas. At least the referendum has allowed us to face up to such a major issue.

I differ from Senator O'Kennedy on the divorce referendum. We were on different sides on that issue. Like him, however, I welcome the opportunity of having a full debate on a fundamental issue for the future of Irish society. We have learned from the 1986 experience exactly how one should not hold a referendum. If we are to hold, a referendum on a major issue of public policy, it is vital that the supporting legislation be in place, that there be as full and as open a debate as possible preceding the referendum and that the people are not asked to rush to judgment in the three or four weeks prior to a referendum. This Government has learned that lesson.

I am a strong advocate of the introduction of civil divorce in this country. I do not advocate it out of a sense of enthusiasm. Divorce and the divorce process is sought only after a great deal of pain, suffering and thought. In many cases a dissolution of the marriage is better for all concerned. That debate, however, is for another day. It is good that we have a referendum so that such a fundamental issue can be decided by the people.

Great lessons should be learned from the 1983 referendum which was an even worse example of how not to make public policy. The circumstances in which the commitments were given, the way in which the issue was debated in both Houses — and I was a Member of the other House then — and the intemperate and partisan nature of the debate was something which all of those involved in it would probably regret. On such issues it is important that the preparation for referendums is conducted in as open and as non partisan a way as possible. We have learned from previous referendums. Nobody or very few people in 1937 anticipated how important the referendum would become as a means of shaping public policy. In the 16 or so referendums that have been held the issues have varied from those which were not of a fundamental nature but which because of their inclusion in the Constitution had to be put to the people, to the utterly fundamental issues I have mentioned.

Senator O'Kennedy referred to easy access to referendum. This is a fundamental question. It is not addressed in the Bill because it was not within the remit of this legislation. The late John Kelly used to say frequently that one could do worse than read the principles in the democratic programme for the First Dáil. This was an example of a pure form of democracy and many of the principles bear repetition today. The same could be said of the 1922 Constitution. It is a much forgotten document but the greatest tribute which could be paid to it is that the late Mr. De Valera incorporated large chunks of it in the 1937 Constitution.

Behind that Constitution was a great belief in popular participatory democracy, which was fashionable among new democracies at that time. The provisions on referenda quoted by Senator O'Kennedy was a part of that. We adopted an extreme form of PR because those framing the Constitution believed that as far as possible the Dáil should reflect as wide as spectrum of views as possible. This was similar to the beliefs of the time in Weimar Germany. They saw PR as an ideal system which allowed parliament to be widely representative, almost a microcosm of the nation as a whole; I think they were wrong in that.

As Senator O'Kennedy said, the 1922 Constitution provided that if 75,000 people signed a petition, a referendum could be held. The provision has an interesting history and there is much to be learned from what happened, because two important principles of democracy were brought into conflict. The Fianna Fáil Party entered the Dáil in 1927 and initiated a petition on the abolition of the oath of allegiance. There was no difficulty in obtaining signatures.

The Government of the day took the view that the oath of allegiance was part of an international treaty between the Irish Free State and Great Britain and therefore one party could not unilaterally break that treaty. The Government then abolished the right of easy access to referendum, as it was then possible for it to amend the Constitution without referendum.

At that time Mr. de Valera and his party made great capital out of this move and said when they came to power this right would be restored. As Senator O'Kennedy knows, matters often look different from behind the Taoiseach's desk than from behind the desk of the Leader of the Opposition. When in power Mr. de Valera strongly resisted any attempt to allow easy access to referendum on a popular basis and when the Constitution was debated in 1936 Mr. de Valera was no longer as keen on the idea.

These events lead us to ask what type of political system we want. Do we want easy access to referendum, allowing the people to vote on a whole range of issues? Or do we regard the referendum as a blunt instrument, useful for deciding fundamental issues, but decide that better and more subtle law can be derived from consultation, discussion, Committee Stage and other parliamentary deliberations? Popular and populist issues might frustrate Governments which have a four or five year programme. Impossible demands might be made, because people might want to vote for moves which are popular but might not be feasible.

Perhaps we can look at Senator O'Kennedy's question again at some later date. It highlights an aspect of our referendum system with which I have difficulty, that access to referendum is restricted to the Government of the day. It is not possible for the Opposition or a large public group to initiate a referendum; there must be a majority in both Houses and it must be initiated by the Government of the day.

I now move to another point raised by Senator O'Kennedy and I thank him for the material he has provided for my contribution.

The Senator is developing my points in his informed way. It is not necessarily the way I would develop them, but that is another matter.

Senator O'Kennedy referred to the committee which reviewed the Constitution in 1967. That committee's report is a most underrated document. It is enormously important and I regret that more of its recommendations were not put into effect. The Senator quoted one of our greatest Taoisigh, the late Seán Lemass, who said the younger Members should have a say in deciding how the Constitution of the future should look.

An all-party committee to review the Constitution is long overdue. The chemistry in the previous committee worked well, as the Senator, who was a member of that committee, confirmed today. It would be worthwhile to have an all-party joint committee of these Houses reviewing the Constitution on an ongoing basis. Such a committee should not be under any time constraints but should simply examine what changes might be made in the public interest.

We should be wary of overusing the referendum. It is a blunt instrument. We should not see it as in any way replacing the central role of Parliament in defining public policy. I would have reservations about there being too easy access to the referendum process. This Bill provides a good legislative framework within which we can carry out the operation of referenda.

Wexford): I express appreciation for what has been a useful and constructive debate. I thank Senators for their contributions. I found it stimulating to be taken back in time by both Senator O'Kennedy and Senator Manning to 1922 and the Lemass committee. It was most interesting to hear them debate the various aspects of the Constitution through the years on the floor of the House.

There has been a general welcome for the Bill and I thank Senators for that. The Bill has been recognised as solid reforming legislation which continues the reform of electoral laws which began in 1992. It will enable the central referendum returning officer to order a complete re-examination and recount of all ballot papers in each constituency. Provision is allowed in the Bill for polling station staff deployed outside their own constituency to vote in the polling station where they are on duty. It also enables the Minister, by order and with the approval of both Houses, to include a descriptive heading on ballot papers at a referendum.

Senator Doyle mentioned the need to inform electors about the subject matter of each referendum. The Bill provides that each voter shall be sent a polling card, explaining the issue on which he or she is being asked to vote. The statement will also be displayed on posters at polling stations. It also provides that copies of a Bill containing the proposals to be the subject of a referendum will be made available in post offices for free inspection by the public. The statement on polling cards and posters must be approved by both Houses of the Oireachtas and I think this should ensure it is impartial and not biased.

Publicity campaigns by interest groups or political parties are matters for such groups or parties themselves. It may be expected that the detailed information and guidance on amendments would be issued from such sources.

Senator Doyle and Senator Mooney raised the question of emigrant voting. In the last year we have debated the voting rights of emigrants on at least eight occasions in both Houses. Article 47.3 of the Constitution provides that every citizen who has the right to vote at an election for Members of Dáil Éireann shall have the right to vote at a referendum. The implication of that provision is that a citizen who does not have the right to vote at Dáil elections cannot be given the right to vote at a referendum. As already indicated on a number of occasions, the legal advice is that under the present constitutional provisions there is only limited scope to grant voting rights to those temporarily absent from the country. As has been mentioned, the Programme for a Partnership Government accepted in principle that there should be a constitutional change to give voting rights to emigrants and that this issue would be further examined. This examination is taking place in the Department but no decision has been made. I will keep the review committee and the Minister informed of the views expressed here today.

The political parties and I have listened to many discussions on the right of emigrants to vote but there is no agreement on how it should be done. On a number of occassions in the Dáil the Fine Gael Party suggested that emigrants should be represented in this House by a Senator or a number of Senators. The Labour Party has different views, as does the Fianna Fáil Party, even among its members, on how this should be done. The review committee is examining this issue and the Programme for a Partnership Government has made a commitment that proposals will come before both Houses of the Oireachtas during the lifetime of this Government. There will be a wide ranging and detailed debate when that happens because of the different views among political parties.

Senator Mooney asked if the plural for referendum is referenda or referendums. Senator Manning dealt with this point reasonably well when he stated that both forms are acceptable. It is traditional among the people and in the Constitution to refer to it as referenda, therefore we should keep that wording.

Otherwise, we would be talking about addendums.

(Wexford): As Senator Manning said, either word is appropriate.

Senator O'Kennedy referred to the right of the people under the 1922 Constitution. Once again, Senator Manning dealt appropriately with this issue. Unkind people might say that the change came about because there was a possibility of activating the procedure.

Senator Henry referred to disabled voters and the need for a medical certificate. Polling stations should be more accessible to disabled voters and the returning officer should allow disabled people to vote. We should not need medical evidence, particularly if a person cannot vote in one polling station. For example, if an person in a wheelchair can be facilitated at another polling station, which is accessible, they should not need medical evidence for the person in charge to allow them to vote. This provision is not widely known, but my Department recently brought it to the attention of the National Rehabilitation Board in order to ensure that disabled people became aware of it. We hope it is availed of at future referenda and elections.

Under existing law the following facilities are provided for voters with physical disabilities. A disabled person who is unable to go in person to vote at his or her polling station may apply for registration as a special voter and vote at home; a disabled person who has difficulty in gaining access to his or her own polling station may apply to have his or her vote transferred to another polling station in the same constituency; a disabled person who requires assistance in marking his or her ballot paper may be assisted by a companion or by the presiding officer. In addition, returning officers are advised by the Department of the Environment at each election and referendum that polling stations should be so located as to provide easy access to the disabled electorate and the provision of ramps should be considered where necessary. Returning officers are not paying attention to what the Department of the Environment is saying because many polling stations around the country are either upstairs or downstairs and are totally inaccessible to people with disabilities. The Department must again discuss this issue with returning officers because many schools, halls and areas where elections take place are not user friendly to people with disabilities.

Senator Henry raised the question of including photographs of individuals on ballot papers. This is not relevant to a referendum because photographs would not be an issue. Apart from the problems associated with including photographs on ballot papers, many people have reading and writing difficulties and would require assistance to mark the ballot paper. This matter must be considered in the context of the law relating to the conduct of elections in the first instance. I assure Senator Henry that we will bear her views in mind in future reform. This suggestion has been made on a number of occasions in the Seanad and we will take on board the views expressed when the appropriate time comes.

Perhaps the Minister would consider allowing older photographs because I cannot improve on them.

That point has already been made.

(Wexford): Good looking candidates would have an advantage, but all is fair at election time.

Sunday voting was mentioned by Senator Manning and others. The Electoral Act, 1992, removed the statutory barrier to voting on Sunday. There is now no reason an election or referendum should not be held on a Sunday. On each occasion a decision must be made as to which day should be appointed as polling day. However, it is clear that some minority churches have difficulty with the concept of voting on a Sunday on grounds of conscience. The position of these churches must be taken into account.

Senator Manning also raised the question of errors on the register and names being omitted from it. Section 15 of the Electoral Act, 1992, provides for a supplement so that people omitted from the register can have their names restored. Anyone in this position can apply for reentry on the supplement up to 12 days before polling day. Many people are availing of this opportunity prior to the forthcoming urban and European elections. I appeal to people and to political parties in particular to tell their supporters and the public that they can now avail of this provision. This worthwhile change was recently made by the Minister.

I thank the Senators for their input and their support for this Bill.

Question put and agreed to.

When is it proposed to take Committee Stage?


Agreed to take remaining Stages today.