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.