Apart from the consolidation and amendment of the law relating to the conduct of a referendum effected by the Referendum Act, 1994, this is the first legislation on referendum law providing for substantial new procedures at a referendum since the original referendum law was enacted in 1942.
The Bill provides for new procedures relating to the conduct of a referendum. The establishment of a Referendum Commission to prepare information statements and to foster and promote debate relates to the broader aspect of a referendum campaign, an area that was not heretofore governed by detailed statutory regulation.
The new procedure relating to the appointment of agents at a referendum is an extension of the law relating to the detailed conduct of a referendum extending from the taking of the poll to the counting of votes. In this context, while the Bill is a relatively short one, it nevertheless represents a significant development of the law relating to a referendum.
The Bill breaks new ground in so far as the information aspect is concerned and I am sure we will gain much experience on how the procedures provided for in the Bill will operate in practice at the forthcoming referendum.
In the Dáil, Fine Gael Deputies opposed the Bill. They expressed the view that the Government is entitled to campaign for a "yes" vote using public funds, notwithstanding the McKenna judgments and that if there is a role for a Referendum Commission it should be to determine whether the Government is impartial in the expenditure of public funds at a referendum. They envisaged that legislation should provide accordingly, with its constitutionality being tested in the courts.
In the period of over two years since the McKenna judgments, it has been generally accepted that the Government may not spend public funds on advocating a result at a referendum to the detriment of those on the other side of the argument. I do not see how the views put forward by the Fine Gael Party can be squared with the McKenna judgments. While the judgments acknowledge that the Government may advocate a result at a referendum, they make it clear that it is impermissible for the Government to spend money in the course of a referendum campaign to benefit one side rather than the other.
The commission to be set up under this Bill is charged with spending public funds in a way that is fair to all interests concerned. In that way, I believe it meets the main point of the McKenna judgments on the use of public funds.
The purpose of the Bill is to establish an independent statutory Referendum Commission to prepare and disseminate information on the subject matter of a referendum and to foster and promote public debate in a manner that is fair to all interests concerned at a referendum. It will also consider and rule on applications from bodies for a declaration that they be approved bodies, whose sole function will be to appoint agents at a referendum.
Section 2 provides for the establishment, by order of the Minister, of an independent Referendum Commission not earlier than the date on which the Constitution amendment Bill is initiated in the Dáil or, in the case of an ordinary referendum, not later than the date of the order appointing polling day at such referendum. Where the commission is established before the passing of a Constitution amendment Bill by both Houses of the Oireachtas, it will be prohibited before the passing of the Bill from publishing any statements or incurring any expenditure without the consent of the Minister for Finance.
The section provides that the commission will be independent in the performance of its functions and, subject to the provisions of the Bill, it will regulate its own procedure. This is an important point especially when considered in conjunction with the specific requirement in the Bill that the commission carry out its functions in a manner that is fair to all interests concerned. This should allay any fears that the funding to be provided by the Government to the commission may not be spent in a fair manner to both sides of the debate at a referendum.
Section 2 also provides that a member of the commission shall not advocate or promote a particular result at the referendum in respect of which the commission has been established. While it might not be necessary to provide for this matter, given the membership of the commission, it is important to demonstrate explicitly that the commission will be impartial in its attitude to the proposal in the referendum.
The section also sets out the membership of the commission. The members will be a former judge of the Supreme Court or a serving or former judge of the High Court nominated by the Chief Justice, who will be chairperson, the Comptroller and Auditor General, the Ombudsman, the Clerk of the Dáil and the Clerk of the Seanad. The section makes porovision for substitution where there is a vacancy in the office of one of the ordinary members of the commission and where the chairman or another member of the commission is temporarily unable to act. A member of the commission, who ceases to hold the relevant office, such as on reaching retiring age, will normally continue as a member until the commission reports. The former Chief Justice, Mr. Thomas Finlay, has agreed to be chairperson of the first commission. I take this opportunity to thank those who have agreed to serve on the commission.
Section 3 sets out the principal functions of the commission. It provides that it will prepare statements containing a general explanation of the subject matter of the proposal, the subject of the referendum. The commission will also prepare a statement or statements of the arguments for and against the proposal having regard to any submissions made to it under section 6 of the Bill. The commission will be required to publish and disseminate these statements to the electorate.
As this section confers such powers on the commission as are necessary for the performance of its functions, it will be open to it to decide the best way of communicating with the electorate. The commission can use television, radio and other electronic media in addition to printed matter in brochures, leaflets, pamphlets and posters. It will also be a function of the commission to foster, promote and facilitate public debate on the proposal the subject of a referendum. The commission, in carrying out these functions, will be required to be fair to all the interests concerned. This is an essential part of the commission's role.
The process of providing direct information to the electorate has evolved over the last few years arising from the fact that, in recent years, most of the political parties represented in the Houses of the Oireachtas have been in favour of proposals put before the people at referenda. This is a welcome development as constitutional change should have the widest possible consensus. However, it has the drawback that public debate is not as sharp or as interesting as some people would like. The process of providing direct information on the advantages and disadvantages of a proposal at a referendum commenced in 1995 with the establishment of an ad hoc commission on referendum information for the divorce referendum. Since then there were two further commissions which had the responsibility of preparing statements with arguments for and against proposals at the bail referendum in 1996 and at the Cabinet confidentiality referendum in 1997.
Criticism was expressed after the most recent referendum that the advertisements were not the best of way of communicating simple factual information to the electorate. There is a view that the delivery of a leaflet in an easy to read format to every household is more effective than newspaper notices. Notwithstanding the criticism, the ad hoc commissioners were a step forward in attempting to breach the gap in the provision of information. I believe this proposal will be a further step forward in that process.
Section 4 provides that the commission may engage such consultants and advisers as it considers necessary for the performance of its functions. Again it will be a matter for the commission to engage professionals such as public relations experts, publicists, advertising agencies and other professional services to ensure that they get their message to the electorate in the most effective way. This is important to ensure that public funds are not wasted on ineffective information and publicity. Due to the criticism which arose after the last referendum on the lack of comprehensible information, the commission will have to ensure that its statements are prepared in simple and understandable language. This section will enable the commission to engage the services of agencies with the appropriate expertise in this area.
Section 5 is important. It provides that the prohibition in the Broadcasting Authority Act, 1960, and the Radio and Television Act, 1988, on the acceptance of political advertisements will not apply to advertisements to be broadcast at the request of the commission in relation to its principal functions at a referendum. The importance of the commission's work, which is governed by the concept of fairness to all interests concerned, warrants the departure from the prohibition of political advertisements for the purpose of conveying balanced information on a referendum proposal to the electorate.
Under the section, the commission may, after consultation with the RTÉ Authority or the Independent Radio and Television Commission and having considered any proposals on their broadcasting plans in connection with the referendum, request the Minister for Arts, Heritage, Gaeltacht and the Islands, to direct the RTÉ Authority or the Independent Radio and Television Commission to arrange to make broadcasting time available to facilitate the commission in performing its functions.
Section 6 provides that the public can make submissions to the commission relating to a proposal the subject of a referendum. The commission will have regard to the submissions received when it is preparing statements under section 3. This is not to say that the contents of every submission will have to be reproduced in statements prepared by the commission. It will be a matter for the commission itself to decide the content of its statements provided they are fair to all of the interests concerned.
Section 7 provides that a body may apply to a referendum commission for a declaration that it is an approved body for the purposes of the referendum. The only function of an approved body under the Bill will be to appoint agents at various processes at the referendum. The right of such bodies to appoint agents will be in addition to the right currently conferred on Members of both Houses of the Oireachtas to appoint agents. This provision is included to take account of the High Court judgment in 1997 which held that the Minister has jurisdiction to rule on requests made to him by persons or groups to appoint such agents at a referendum. In view of the confusion in the other House I wish to stress that the only function of an approved body under the Bill will be to appoint agents. There is no question of appointing funding to such bodies at a referendum.
A body will have to apply for a declaration at each referendum at which it wishes to appoint agents. The requirements are kept to a minimum. The body must have an interest in the referendum. It, or a branch of the body, must be established in the State, have at least 300 members, have a constitution, memorandum of association or other such document approved by the members and a name which is not identical or does not closely resemble the name of a political party registered in the Register of Political Parties. The commission must be satisfied that the applicant body has a bona fide interest in the subject matter of the referendum.
While some may criticise these requirements as too stringent, I stress that the role of an agent at an election or a referendum is serious and important. It is a task which must be done correctly and not a matter to be taken lightly. I wish to give some background to the appointment of agents, what they can do at a referendum and the reason for this provision.
Section 26(1) of the Referendum Act, 1994, provides that a Member of the Dáil for the constituency and any Member of the Seanad may appoint agents at a referendum to be present at the issue of ballot papers to postal voters, the opening of postal ballot boxes and the counting of votes. A Member of the Dáil for the constituency and any Member of the Seanad may appoint one person to be present in each polling station at a referendum for the purpose of assisting in the detection of personation.
In November 1995, prior to the referendum on divorce, an anti-divorce activist wrote to the then Minister requesting him to redress what she referred to as a deficiency in the Referendum Act, 1994. The person claimed that groups opposing the then proposed constitutional amendment were excluded from appointing personation agents and agents to attend the count without obtaining an appointment from a Member of the Oireachtas. She indicated that most, if not all, the parties in the Oireachtas were supporting the proposed amendment and requested the then Minister to make provision by way of emergency regulations to allow anti-amendment groups to appoint such agents. As that request was not acceded to, legal action was initiated.
In March 1997, the High Court granted the plaintiff a declaratory relief and made a declaration that the Minister has jurisdiction to consider whether there exists circumstances of special difficulty arising from the operation of the power of appointment contained in the section. Should he decide that circumstances of special difficulty arise, he may modify section 26 by providing by ministerial order that the power of appointment should be exercised by persons or groups in addition to the persons mentioned in the section.
The practical arrangements to be put in place at a referendum where no political party in the Oireachtas is opposed to a constitutional amendment have to take account of any group opposed to it. The Minister could by difficulty order determine which groups could appoint agents, or he could designate that this function should be performed by the referendum returning officer or each local returning officer. It would not be the most satisfactory arrangement that the Minister would adjudicate on who should have authority to appoint agents at a referendum as a refusal by the Minister of a particular person or group to appoint agents would be likely to lead to allegations of bias or conflict of interest on the part of the Minister and could result in a referendum petition. Assigning the duty to the referendum returning officer or local returning officer to determine which bodies should be entitled to appoint agents is not considered appropriate; it could embroil impartial election officials in charges of partiality.
I consider that the procedure for making a difficulty order at a referendum is not an appropriate mechanism for authorising bodies to appoint agents. Instead, section 7 provides that interest groups which are declared to be approved bodies by the Referendum Commission will be entitled to appoint agents. This will avoid any allegations of unfairness or partiality.
Under section 8, a commission is required, as soon as possible after its establishment, to publish a notice in at least two national newspapers inviting submissions in relation to the proposal the subject of the referendum. The public notice must also refer to the procedure for declaration of approved bodies for the referendum. It must also specify the latest date for receipt of submissions and for applications to the commission for declarations as approved bodies in respect of the referendum. This public notice will alert individuals, groups or political parties of their right to make submissions which must be considered by the commission in preparing its statements.
Section 12 amends the Referendum Act, 1994, to provide that the result of a referendum may not be questioned on the grounds of non-compliance by the Referendum Commission with any provision of the Bill or any mistake made by the commission if it appears to the court that the general principles laid down in the Bill were complied with and the non-compliance or mistake did not materially affect the result of the referendum.
Under section 13 the expenses of the Referendum Commission will be paid from moneys provided by the Oireachtas from the vote of the Minister who initiates the relevant Bill containing the proposal which is the subject of the referendum. The Government has approved funding of £2.5 million for the commission's promotional work in respect of the referendum on the Treaty of Amsterdam.
Some speakers in the debate on the Bill in the Dáil advocated that the commission should provide funding to interested groups at a referendum. I do not agree with such a proposal. For instance, how would an allocation be divided if we assume the Government decided to allocate £1 million to be distributed to political parties and interested groups? Should it be pro rata to the size and representation of parties or groups or should 50 per cent of the funding be given to both sides? Either approach would be open to challenge on the grounds of unfairness. This would be particularly true in the case of the Treaty of Amsterdam given that 97 per cent of the people's representatives are in favour of it. I am not satisfied that taxpayer's would be in favour of the Government issuing large sums of their money, together with the extra costs of administering a scheme, to political parties and interested groups to persuade them to vote for or against the referendum. The potential for wastage of public funds would be enormous, especially if the electorate was bombarded with conflicting and perhaps inaccurate propaganda paid for with its money. The Government considers that the Bill provides a better option for supplying information to the electorate in a manner that is fair to all the interests concerned.
Under section 14 the commission will be required to furnish a report to the Minister as soon as practicable, but not later than six months after the completion of its functions at a referendum. The Minister is required to cause a copy of the report of the commission to be laid before each House of the Oireachtas. Where the Minister so directs, the report of the commission must include information on any particular aspect of the commission's functions as may be specified by the Minister. The commission will automatically be dissolved one month after presenting its report.
The question of information at a referendum was considered by the All-Party Committee on the Constitution following a recommendation in the report of the Constitution Review Group. In its first progress report issued last April the all-party committee agreed, as part of its conclusions on this matter, with the Constitution Review Group that an independent body should be established to regulate the funding and conduct of referenda. The all-party committee is currently reconsidering the matter and I have been criticised for not waiting for its report. However, in view of the short time available before the referendum on the Treaty of Amsterdam, I had no choice but to proceed with the present Bill in order that the commission would have time to carry out its functions effectively. I will, of course, consider recommendations the committee may make for inclusion in future legislation.
The Constitution Review Group also recommended that a commission should allocate funds to political parties and interest groups to ensure a thorough sustained debate on a referendum proposal. I am not convinced, and am not aware of evidence, that providing funds directly to political parties and interested groups would provide simple factual information to the electorate.
The Bill will put in place a mechanism to provide information to the electorate in a way that is fair to all concerned interests. The commission can only provide information; it cannot make the electorate read or consider it. Neither can the commission force the electorate to vote. As public representatives, we and others participating at various levels in political parties or public life have a role to play in this issue. I hope that, irrespective of our views on the Treaty of Amsterdam, all persons active in politics will help in generating a healthy debate on it. I also hope politicians at national and local level will urge electors to vote on polling day.
Hopefully, the information provided by the commission will increase public awareness which will result in the electorate being in a position to make an informed decision and express that decision by coming out on polling day to cast their votes. I commend the Bill to the House.