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Seanad Éireann debate -
Tuesday, 10 Jul 2001

Vol. 167 No. 14

Electoral Amendment Bill, 2000 [ Seanad Bill amended by the Dáil ] : Report Stage.

The Electoral (Amendment) Bill, 2000, has three motions for recommittal, which I propose to deal with first. If a Senator moves, under Standing Order 111, that a Bill be recommitted either wholly or in respect of certain sections or amendments, where the motion is opposed under Standing Order 112, the procedure is that the Chair allows the proposer to make an explanatory statement of the reasons for the proposed recommittal and allows a statement from the Senator who opposes the motion before putting the question. I will now deal with the motions individually in the sequence in which they appear on the Order Paper.

I move: "That the Electoral (Amendment) Bill, 2000, be recommitted in accordance with Standing Order 111."

I second the motion.

Is the motion being opposed?

Under Standing Order 112, Senator Manning is entitled to make an explanatory statement to the House.

I want to have the Bill recommitted for a number of reasons. When the Seanad was being instituted in 1937, one of the reasons given by Mr. Éamon de Valera for doing so was that it would prevent hasty or ill-considered legislation passing through Parliament and that it would provide a second opinion on legislation and an opportunity to examine legislation that might not have been treated fully in the other House.

These are precisely the circumstances we find ourselves in today. The Bill we are considering was not properly debated in the other House. My main concern is the new section in the Bill dealing with the ban on opinion polling. When the Electoral (Amendment) Bill was in this House, there was a lengthy debate, but there was no reference or proposal of any ban on opinion polling. It was not discussed in principle in this House, nor was it discussed in detail on Committee or Report Stage. The Bill then went to the Dáil where the full Second Stage debate took place without any proposal to ban opinion polls. It then proceeded to Committee Stage in that House. At this stage a proposal was made by my party to ban opinion polling. I do not regard this as a party political issue, but as a matter of public policy. The Government put down its own amendment, the nature of which I will come to in a moment, but the matter was not debated and the Bill was guillotined in the Dáil without consideration being given to the section dealing with opinion polling.

We have now arrived at the position of having a Bill pass in both Houses without discussing a major departure in public policy or how it will operate in practice. We have here, in the shape of the main Government amendment, effectively a new Bill. It contains definitions and is short, although we have dealt with shorter Bills, but it is a new Bill which makes a very substantial change in public policy that has not been debated in either House. Not only is that bad practice, it is indefensible.

This House exists precisely to ensure that this sort of thing does not happen. My request today exactly reflects the spirit of what Mr. Éamon de Valera intended when he founded this House over 60 years ago. I am sure those on the opposite side who share the spirit of the founder of their party will see he would have been shocked by that practice and would have wished them to use this House, of which we are all very proud to be Members, in that spirit.

Is this new undebated proposal on opinion polling a matter of national urgency? The answer is no. Nothing will be lost by recommitting part or all of this Bill to a committee for consideration over the summer. There is no urgent clamour for the imposition of a ban on opinion polling. It can wait to be dealt with properly, so why rush this Bill? I will not accuse the Leader of the House of rushing Bills through as he has been very good in allocating full time to them, but this Bill is being rushed.

It is not only the Attorney General but also the person whose advice he sought, as well as lawyers with whom I have consulted, who believe that this Bill may be constitutionally flawed and may not stand up to scrutiny in the Supreme Court or the High Court. While I cannot read the mind of the President, it is likely that this Bill will be referred to the Supreme Court for adjudication before it is finally signed into law. There are serious constitutional doubts, some of which the Attorney General shares. I would like his advice to be published to help the public debate.

There has been no denial from Dr. Gerard Hogan of Trinity College, a very eminent constitutional lawyer, that his advice also placed a great question mark over the constitutionality of the Bill. All the lawyers I asked for advice have said there is a case to answer because the Bill may well be unconstitutional. It would be foolish, wrong and reckless of us to rush through legislation having been told by several lawyers – I hesitate to use the term eminent lawyers—

Expensive lawyers.

—as all lawyers, by definition, regard themselves as eminent – that it may be struck down at the first obstacle. Why not debate the matter in the calm way legislation requires?

Many fears have been raised on the subject and much of the debate has been hysterical. I took great exception to the comments made by some media commentators describing this legislation as Hitler and Goebbels-like legislation or repressive or Third World legislation. Many other such epithets rained down on politicians. As I have said before on debates on media reform, if people in the media want a reasoned debated, they should be careful to ensure the language they use is not out of touch with reality, hysterical or offensive. These are issues with which we can all engage and on which there are at least two points of view. Let us have the debate, but let us get rid of the hysterical language.

There are fears on the part of the media. Most media people do not trust politicians, fearing an attempt to clamp down on the messengers, the bearers of bad news. They are concerned this is the beginning of a war through repressive legislation. Their fears are baseless. This proposal is not a direct attack on the media. However, the penalties in the Bill are draconian and out of all proportion to any offences which might be committed. There is a further case to answer.

To journalists who have been shouting so loudly on this question I say we too have our fears and suspicions. We trust the media no more than they trust us. There must always be an air of tension between the two estates. We are not in their pockets, they are not in ours, they ask questions of us just as we ask questions of Government. There are fears, for example, concerning the over-concentration of media ownership in one group. If that group happened to have a particular agenda, there is the possibility that it could distort opinion coming up to an election.

Politicians also fear an absence of standards. The established opinion polling organisations behave honourably and honestly and conduct their business properly but, in the absence of a ban, what is to stop cowboy operators springing up before an election and introducing information intended to distort public debate? There is no point in the people involved apologising once the damage has been done.

There are, therefore, legitimate questions to be asked on both sides. These fears will only be met head on if the two sides sit down to talk and put reasoned cases. We could then see what the media are afraid of and, at the same time, forcefully express our fears about the way in which they operate. In that way, much of the mistrust could disappear.

One thing that has been absent in this debate so far is evidence. No evidence as to the exact impact of banning opinion polls in other countries has been brought into this debate. Plenty of such evidence exists and there are also many experts in our universities, including Dr. Richard Sinnott and Dr. Michael Marsh, and among the opinion pollsters themselves. There are plenty of people who could provide objective, sober, dispassionate analysis of the impact of opinion polling on electoral behaviour. It may well transpire that it has had no effect at all. People make up their minds for a variety of reasons such as local, party and inherited issues, or because they hate or love somebody. Opinion polls probably have only a very small effect. They appear to have an effect in Britain where, in the last general election, the polls induced many people not to bother voting because it was clear Tony Blair only had to get up on the morning of the election and drive into Downing Street that evening and he would get elected, so great was the gap in the polls.

However, the British have a different electoral system. No one would take an election here for granted. Given that we have proportional representation, multi-seat constituencies and so forth, there would be very few people saying at the beginning of an election it is all over because the polls say it is. Opinion polls are not a factor in discouraging people from voting here.

I would be happy if only the section on opinion polling did not proceed now and was referred back to committee. We will be doing a bad job if we do not do that. The other House has not behaved well. There is no justification for guillotining legislation at any stage. It is disgraceful that large rafts of legislation find their way onto the Statute Book without having been discussed in the lower House. We do our best in this House but because of the way this Bill has come to us we are not being given the opportunity to examine it in detail.

I appeal to the Members opposite in the spirit of the House to which we are all proud to belong. We should pass good laws rather than laws which will not have the acquiescence of a large section of the population, as this one will not if last night's opinion poll is to be believed. This proposal has raised doubts. In the spirit of this House and of good law making, I appeal to my colleagues and friends on the opposite side to accept the proposal in the good faith in which it is proferred and refer the Bill back to committee. The committee could return early after the recess and the Bill could be on the Statute Book by early October. We will do a good day's work for this House and for democracy if we follow that advice.

The opposer of the motion is also entitled to make an explanatory statement to the House.

This morning when Senators Coogan, O'Toole, Norris, Costello and others made arguments similar to that put forward by Senator Manning, I replied that all these points could be made during the debate on Report and Final Stages. There will be no guillotine. Members may speak for as long as they wish and all views may be expressed. There has never been a guillotine in this House under my leadership and there will not be one today.

In the newspapers during last weekend and on radio this morning I have read and heard various views regarding this proposed legislation. Anyone who thinks the media will give politicians a fair break is not living in the real world.

This proposal came from Deputy Olivia Mitchell. She proposed that no public opinion poll shall be taken or published in the seven days prior to any election or referendum and no opinion poll whatsoever shall be published in the seven days prior to any election or referendum. That proposal was supported by Deputy Gilmore. Both Deputies were asked by the Minister of State at the Department of the Environment and Local Government, Deputy Molloy, if they were speak ing on behalf of their parties. The Minister of State was assured this was the case. In fact, Deputy Gilmore said:

In the last critical week of an election the opinion pollsters should stay out of the ring and leave it to the contestants and the electorate. I support the proposal made by Deputy Olivia Mitchell.

The Minister of State went on to say, "I assume they are speaking for their parties, Fine Gael and Labour". When Deputy Molloy, as a matter of clarification, asked Deputy Mitchell if it was true that 14 days was what she had submitted originally, Deputy Mitchell said:

I changed it several times. On reflection, I realised that 14 days was too long. I have the final copy here and I can read it if the Minister wants.

The Minister of State said, "I have it here." Deputy Molloy, in conclusion, said, "I accept the principle behind the proposal and I will be willing to bring forward an amendment on Report Stage." That is what happened in the other House. We must deal with the proposal before us. The Bill was initiated in this House.

There has been no guillotine in this House on any legislation during the past four years. I accept the sincerity of the proposal from Senator Manning, former Leader of the House and Leader of Fine Gael in the House. I respect his views. He has been an eminent Senator and has enhanced the proceedings in this House in the long time I have been here. However, with regard to the points he has made and particularly the point regarding the recent British election, we cannot make an analogy with the British system. The number of Independent Members in the other House is in double figures and we also differ from the United Kingdom in having proportional representation. In the last general election, 624 votes decided five Dáil seats, and these 624 votes were fifth, sixth and seventh preferences.

Opinion polls are of the utmost importance. Is it fair that someone who has worked hard for an entire Dáil or Seanad term, served his constituents loyally, faithfully and well can be damaged by a particular interest group which controls the media, not nationally but locally, and which for reasons best known to itself does not want him to be re-elected? Such a group could announce to its readers, two or three days before polling day that a certain person had 40% support and would top the poll and that someone else was in trouble. That is not fair. The media have, for four years and ten months, an opportunity to make their case. For the week before polling day, the ordinary men and women of Ireland and the ordinary candidates who are men and women of Ireland should be given their opportunity.

We are not discussing the principle behind this proposal. I believe all political parties are in favour of having an agreed time when there would be no polls. I would like to see the House debating this issue rather than to-ing and fro-ing with votes, as we have done today. We will stay for as long as this matter takes and if it takes until next week I do not mind. There will be no guillotine or stifling of debate. We are here to listen and to debate and pass legislation.

Question put.

Burke, Paddy.Coghlan, Paul.Coogan, Fintan.Cregan, Denis (Dino).Doyle, Joe.Hayes, Maurice.Keogh, Helen.McDonagh, Jarlath.Manning, Maurice.

Norris, David.O'Dowd, Fergus.O'Meara, Kathleen.O'Toole, Joe.Quinn, Feargal.Ridge, Thérèse.Ross, Shane.Taylor-Quinn, Madeleine.


Bohan, Eddie.Bonner, Enda.Callanan, Peter.Cassidy, Donie.Chambers, Frank.Cox, Margaret.Cregan, JohnFarrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Glennon, Jim.

Glynn, Camillus.Kiely, Daniel.Kiely, Rory.Lanigan, Mick.Leonard, Ann.Lydon, Don.Moylan, Pat.O'Brien, Francis.Ó Fearghail, Seán.Ó Murchú, Labhrás.Walsh, Jim.

Tellers: Tá, Senators Burke and Ridge; Níl, Senators Farrell and T. Fitzgerald.
Question declared lost.

The next motion is in the name of Senator O'Meara and is in respect of amendments Nos. 1 to 46, inclusive.

I move: "That, in accordance with Standing Order 111, the Electoral (Amendment) Bill, 2000, be recommitted in respect of amendments Nos. 1 to 46, inclusive."

I second the motion.

Is the motion being opposed?

Under Standing Order 112 Senator O'Meara is entitled to make an explanatory statement to the House.

In moving the motion we wish to state we are doing so because of the seriousness and urgency of the situation. As has been pointed out on more than one occasion, it is not good practice to rush legislation and those of us on this side of the House have objected to the speed with which the Government side has attempted to move legislation through the House. Our specific role is to give due and detailed consideration to legislation. The speed at which the Government has moved this Bill through the Lower House is one reason for such adverse public reaction. A suspicion has been generated that in some way the Government is moving fast as they are trying to hide something from the public. There has been a negative reaction to this approach. It also looked like a bitter and petty reaction to the vote received by the Government candidate in the Tipperary South by-election. To some extent it is interpreted as a scapegoating of the media and specifically those companies which carry out opinion polls.

What we need is a debate on the use of opinion polls and their potential effect during elections and the role of the media not only during elections but in general. I specifically ask Members to separate from the issue the growing negativity and personalised reaction to media commentary about us and our actions as parliamentarians. As a former journalist I specifically ask Members to stand back and look objectively at the commentary about us and how we conduct our business, and to ask if some of it at least is fair. I know there are Members who have an increasingly negative and bitter feeling towards how the media comment on us as public representatives, but I put it to colleagues that free speech and free expression of opinion, especially when we do not like it, are fundamental to our democracy. A situation in which the media can adversely comment on us is a mark of our democracy and I ask Members to consider what would happen if the opposite were true.

The provision inserted in the Bill has been interpreted as an attempt to stifle democracy and free speech. Personally I do not think that was ever the intention but I am not in the least surprised it has been interpreted in that way, and we must take that point of view into account. We must also take public reaction into account. As Senator Manning and others pointed out, we have a duty and this week an opportunity to consider and take into account public reaction to this measure. That is our role and we must take it on board, and it is in this context that I move the motion.

Amendments Nos. 1 to 46 relate to the Bill, but not as amended by the Dáil and therefore have been ruled out of order. However, we tabled them as we believe the entire Bill must again be considered by the House for the specific reason that it has been significantly altered by the Lower House and returns to us as effectively new legislation, and we should consider it as such.

The amendments are technical in nature, and many of them are drafting amendments. Our legal advisers, whom we are very lucky to have, have spotted mistakes in the Bill which have not previously been spotted. In a constructive and positive way, as we have done on numerous occasions in the past, we have put forward the amendments for consideration by the House in an attempt to be helpful. However, because the legislation is being rushed through it will not be possible to correct technical errors in the Bill. Therefore the Bill will have 46 technical errors when it forms part of the Statute Book. Many of the errors are minor, but it is not good practice to put legislation on the Statute Book which we know for a fact to be flawed, even if some of those flaws are minor.

Issues of public importance and constitutional law have been raised in relation to the amendment passed by the Dáil without debate. Knowing constitutional issues have been raised, should we simply pass the legislation and turn a blind eye to the problems we know are evident in the Bill? We constantly and increasingly worry about our standing with the electorate and the public. We do nothing for our public reputation, or for the reputation of the House, to knowingly pass legislation without consideration in particular of constitutional matters raised by those in the wider public whom we know to have greater knowledge than us about these matters, and by those charged by the Government, the State and the Constitution to comment on these issues. How can we ignore the reports of issues raised by the Attorney General and the concerns raised previously by a former Attorney General? It is negligent to do so and undermines our constitutional position and reputation. If it is so commented upon in the public domain we have no one to blame but ourselves.

There are major issues to be debated. The Leader of the House said in response to a previous motion that there is no guillotine in this House – that is true and there never should be one. One cannot have a proper debate on Fifth Stage. It is not possible, as we have just seen in regard to the Waste Management (Amendment) (No 2) Bill, 2001, where significant amendments have come before us.

This is a matter of major importance that has grown in the public mind in the last week. A week is a long time in politics and it is a long time in opinion polling during an election. Let us not scapegoat the messengers and let us not be seen to put a rein on free speech, whether it be on ourselves or on issues in the public domain. Let us do a good day's work in this House, not a bad one.

All the points I made previously were in response to Senator Manning's motion regarding the rushing through of legislation. If an allegation is made in the House it should be fair-minded and have substance. Last week our Whips had to meet countless times to re-arrange business when the time we had allocated was not taken up. I ask people to be reasonable and honourable – they may talk for as many days as they like as there will not be any rushing through of legislation in this House.

As the Cathaoirleach said this morning, what happens in the other House is the business of that House. This House has not been rushing legislation through, apart from some exceptional circumstances. With regard to the legislation before us today, all the time that is necessary will be afforded to it. I do not want Senators making the allegation that legislation is being rushed through – it is neither fair nor true.

Deputy Olivia Mitchellproposed this amendment in the Dáil and Fine Gael won the Tipperary South by-election. The Labour Party had a very fine candidate in Mr. Denis Landy, and two or three days before the poll his vote was put at 3 or 4% above what he actually got in the election. It may or may not be the case that this candidate was affected by the poll.

Seven days is a reasonable time to allow people to make up their minds on who is to govern the country. Unlike ourselves who are privileged to be Members of Parliament and have decent salaries and standards of living, there are many people who do not have this and could be heavily influenced by the media. They should not be put in that position. All parties have contributed to the success of the country since 1987 and as legislators we have to act responsibly. So what if a few less newspapers are sold or ratings and advertising goes down? It is only for seven days out of five years and that is not unreasonable. We are not, and should not be, dictated to. Seven days is the bare minimum and we should discuss the pros and cons of the Bill with the Minister and his officials present. We will be here for as long as is necessary to discuss it.

Question put.

Burke, Paddy.Coghlan, Paul.Connor, John.Coogan, Fintan.Cregan, Denis (Dino).Doyle, Joe.Keogh, Helen.McDonagh, Jarlath.

Manning, Maurice.Norris, David.O'Dowd, Fergus.O'Meara, Kathleen.O'Toole, Joe.Quinn, Feargal.Ross, Shane.Taylor-Quinn, Madeleine.


Bohan, Eddie.Bonner, Enda.Callanan, Peter.Cassidy, Donie.Chambers, Frank.Cox, Margaret.Cregan, JohnFarrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Glennon, Jim.

Glynn, Camillus.Kiely, Daniel.Kiely, Rory.Lanigan, Mick.Leonard, Ann.Lydon, Don.Moylan, Pat.O'Brien, Francis.Ó Fearghail, Seán.Ó Murchú, Labhrás.Walsh, Jim.

Tellers: Tá, Senators Norris and O'Meara; Níl, Senators Farrell and T. Fitzgerald.
Question declared lost.

I move: "That sections 50 and 59 of the Electoral (Amendment) Bill, 2000, as passed by Dáil Éireann be recommitted in accordance with Standing Order 111."

I second the motion.

Is the motion being opposed?

Under Standing Order 112 Senator O'Toole has the right to make an explanatory statement to the House.

I was appalled with the view of the Leader in responding to Senator Manning earlier when he made the point that the media never give politicians an even break.

I did not say that.

The true agenda is emerging. What we are attempting to do here is to muzzle the press and silence the media. That is the clear agenda.

The Senator knows that is not the case. He is only looking for publicity.

My note of what the Leader said to Senator Manning was that the media do not give politicians a fair share and they have four years and eight or ten months to do it. Maybe I am wrong, but that is what I heard. I am not sure what relevance that has to the debate in hand, unless what we are really doing here is having a go at the media. I am sure the Leader will have time to respond to that.

It seems that we are trying to turn the electorate into three wise monkeys. We do not want them to say or hear anything and we certainly not want them to do anything. That is the basis on which we are building a failed piece legislation. Time will prove that. This legislation is both reactive and regressive and of the worst type. It is something that politicians do towards the end of their regime, and that is something I will come back to. It proposes unnecessary actions and is driven by unfounded argument. It is a poor way for us to conduct our business. As a thoughtful House of the Oireachtas, with a legislative function and responsibility, it is not and should not be the way in which we conduct our business.

It is also based on the faulty and failed premise that the people are really dumb and do not understand how to deal with the media, that the public cannot deal with the facts presented by an opinion poll and that the aggregated views of the electorate would be so much a danger to the health of Irish political life that we must strike it down. That is what this seems to be saying. There is no basis on which to move forward and do our business. We have debated many times the lack of involvement of the electorate with the work of politics. Time and again we have said that nobody takes any notice of the great work we do or the great things we have to say andthat nobody is making any judgment of how well we do our jobs. Yet the first time we see any measurement or yardstick being applied to us, we run a mile from it. It sends out an incorrect signal, and is one we should not support.

We should encourage the articulation of the views of the electorate. We should be looking forward to creating circumstances where people can offer their views on us, our legislation, policies and views. That should be something we would welcome. Only a Legislature, Government or political body which chooses to listen can be successful. If we do not want to hear, and we refuse to allow people to speak in aggregate, then we are certainly not ready to listen. We are afraid that if people hear how others are voting, thinking or what their intentions are, it will in some way create a flow away from us and we will lose them. If we are going to lose them that easily we do not deserve to be here in the first place.

Hear, hear.

That is what it comes down to. If we are afraid of the people we seek to represent, if we cannot handle, challenge and deal with their views, then we are in the wrong business. This is the business of engagement, interaction, challenge, leadership, direction and coping with the response we get from the electorate. That is what we need to do.

We should be facilitating and encouraging political debate. We should encourage anything that allows us a clearer insight into the attitudes and views of our electorate. It is only when we can see things from the perspective of those we seek to represent that we can change their attitudes, lead them in another direction or manage their expectations. We certainly will not do that by saying we do not want them to speak or listen to what they say and then making sure that what they have to say has no influence on their neighbours or the people around them. This is in no way supportive. It is the very opposite of participation and engagement.

It is also something which I believe, without a shadow of a doubt, to be unconstitutional on two grounds. I want it to be recommitted so that we can tease out these issues in more detail and have an exchange of views with the Minister. We could listen and learn from each other and move things forward. We propose to do this on Committee Stage where we would go through the details, offer a viewpoint, hear a response, make a reply, take a modified point of view and attempt to get the Minister to go forward. That is what we are about in this House, but we are not doing that here. That is a mistake.

The right to free speech, enshrined in Article 40 of the Constitution, is being seriously threatened here. This point was cogently made by at least two Attorneys General and by another constitutional lawyer. Not all of those were made to this Government, one of the Attorneys General gave his advice to a previous Government. The Constitution is very clear on the role of the Attorney General. Since I joined this House 15 years ago, on almost every Bill that I have challenged, I have been told that the reason my proposal could or might not be accepted was on the basis of advice from the Attorney General's office. That is something which we, and Governments, have to accept.

I believe there is an Article in the Constitution which requires us to deal with this and gives probably the strongest reason for the recommital. I will go into more detail than I did earlier today and I ask the Leader to dwell on this. I accept the point he made this morning about the House being able to deal with and do its own business under Article 15 of the Constitution. The House is also subject to the Constitution. Its Standing Orders must be put together on the basis of the Constitution and be amenable to it.

The important point I wish the Leader to consider is that the Constitution makes a distinction between Bills initiated in the Seanad from those initiated in the Dáil. The latter, if amended by the Seanad, return to the Dáil where the amendments made are considered. A Bill initiated in the Dáil and amended in the Seanad is sent back to the Dáil which is obliged by the Constitution to consider only the amendments made by the Seanad and not the whole Bill. That is contained in Article 20.1 which states:

Every Bill initiated in and passed by Dáil Éireann shall be sent to Seanad Éireann and amended in Seanad Éireann and Dáil Éireann shall consider any such amendment.

That is the point about legislation initiated in the Dáil. In terms of legislation initiated in the Seanad:

A Bill initiated in Seanad Éireann if amended in Dáil Éireann shall be considered as a Bill initiated in Dáil Éireann.

It begins again and returns to us as if it had been initiated in the Dáil. Therefore, it should go through all Stages and that is the reason this Bill should be treated in this manner. That is what is written in the Constitution.

The Leader argued this morning that Article 15, which allows the House to establish its own Standing Orders, takes precedence over that. I do not accept that point and I am certain that the Constitution, in making a clear distinction between the way we deal with Bills referred back from the Dáil depending on whether they were initiated in the Dáil or Seanad, does so for a reason. Our Standing Orders should reflect that difference and they do not. Standing Order 103 deals in the same way with all Bills referred back to the Seanad, even though the Constitution deals with them differently.

The Long Title of the Bill does not refer to section 59 which deals with polling. Neither was it mentioned in the financial and explanatory memorandum circulated initially. This means section 59 was not discussed in the House. We have not had the opportunity to deal with it on Second Stage or to amend it on Committee Stage, and we will now have one shot at it on Report Stage. That was never the way it was intended we would do our business. There has been a lack of discussion and it is wrong we should conduct our business in this manner. I appeal to my colleagues on the Government side to recognise that. I accept they are subject to the Whip and cannot do anything about it and we recognise we will be defeated on this. However, there is a deeper issue.

This reminds me of a long discussion we had on the rod licence Bill in the last week of a session just before Christmas. It was dealt with in exactly the same way. It was rushed through the other House and, when it was discussed in this House, we tried to point out some of the problems which were clear to us, but it was pushed through to cause interminable grief for politicians for years after.

The legislation we discuss is reactive. Every Government has introduced reactive legislation. We should keep a list and circulate it every time we discuss new legislation. Do Members remember the Bill to introduce dog muzzling or to deal with wandering horses? Every time a child is savaged by a dog or someone falls off a horse, or is kicked by a wandering horse, we introduce legislation. This Bill is similar. Someone had a good idea following the by-election in south Tipperary and legislation was introduced.

There is much more important and urgent legislation than this which needs to be dealt with. The Bill does not bring any honour on politicians and is of no use to the job we do. It does not protect us and leaves us open to ridicule. It shows we are afraid of the people and cannot cope. It sends out all the wrong signals. It undermines the role of the Seanad which is supposed to be a thoughtful legislative Chamber where we conduct our business by due consideration of the issues through a broad discussion, focused Committee Stage and general Report Stage.

The role of the Seanad to modify legislation has also been undermined. This legislation should have been returned to us as a matter of principle for us to debate the issues because they have not been discussed. Can anyone accept or agree that it is a proper way to conduct business by enacting legislation which is not discussed fully in either House? The Cathaoirleach said it is not our business to comment on how the other House conducts its business but, as Members of the Oireachtas, we must take the broad view of legislation which we are required to discuss.

Every Member of the House should write to the President asking her to consider two issues – how we have conducted our business and the business we have conducted. She should consider how we have conducted our business on the basis that our process under Standing Orders of the Seanad is out of kilter with, not amenable to and in contravention of what was contemplated and envisioned in Article 20 of the Constitution. She should consider the content of the legislation because it undermines the right to free speech as articulated in Article 40. I ask her to consider referring the Bill under Article 26 to the Supreme Court for a ruling. If the Supreme Court finds the Bill is unconstitutional or has been compiled unconstitutionally, that reflects the failure of the political system. We effectively have our wrists slapped.

Introducing legislation on the basis that we cannot trust the people with information is the basis of fascism, censorship and a totalitarian state and is the basis on which all dictatorships have been run since the beginning of history. It is the mushroom policy of keeping the people in the dark. We cannot have any hand, act or part in this type of development. I do not know how we as Members of a responsible House of the Oireachtas can take a decision which ignores the views put forward by the Attorney General. That cannot be right and we should examine it.

Most importantly, since this was mooted a week ago, every public view articulated on talk shows and phone-ins has opposed the measure. We are acting the bully by putting it up to the people and coming out with our fists high saying we will not be changed, moved or shifted by the views of the mere people whose support we seek at elections. We are effectively saying that we know better, we will teach them to know better, that they should understand better and that they will not have their way on this because we are doing it our way.

Our way should be the people's way. It is not that we should run in front of them but that, if there is a difference of opinion, we should try to manage their expectations and views and change their attitudes to the political process. We should not use a sledgehammer to crack a nut, which is what we are about here, or try to ensure the people do not have their say or have their voice heard.

Neither should we have a cut at the media. We do not need to do this. We can take them on on our own terms whenever we need to do so. They are not all-powerful. If they set themselves up as the moral authority, we can also expose them and it is our role to do so if we see them doing that. We should not be slavishly for or against them. We need to have a clear view.

I recognise I have spoken at some length on this issue but, in terms of what we are dealing with and the basic principles involved, namely, the right to free speech, the way we conduct our business, respect for the people's views, a free press, the manner in which we have political engagement, the participation of the community, engagement of those we seek to represent and for the solid constitutional, legal and other views put forward by eminent lawyers in recent days, it would be the height of foolishness for us to rush through this legislation.

As a fall-back position, will the Leader recommit section 59 and accept this is put forward with the best possible intentions and objectives in the interests of transparency? It would send a positive signal from the Upper House of the Oireachtas that Members care about the people's point of view and will represent them without shutting them up.

I will be brief because I made known my views earlier. No one is being muzzled. Everyone knows this is the biggest U-turn in recent years by the Fine Gael and Labour parties. We are here today to do the right thing at the right time. If the media are of such importance as Senator O'Toole said – he spoke for and against—

I have no brief. They are simply people with whom we deal.


Order, please.

The commission should seriously consider including the Senator because he can make a good case for and a good case against. Like a former Member and MEP, he reminded me of God speaking to God.

Surely Senator Cassidy can do better than that.

Article 15 of the Constitution states that each House shall make its own rules. Standing Order 103 provides that a Seanad Bill amended by the Dáil shall be placed on the Order Paper for Report Stage. Prior to these motions, we did exactly that when we dealt with the Waste Management (Amendment) (No. 2) Bill, 2001. That Bill has far-reaching implications and I would contend it is just as important as the Bill now before us. As that is the norm, I do not understand the hullabaloo.

The same thing applies.

The hullabaloo is about capturing the imagination of the media. I wish to inform the House that there is no general election imminent and the worst thing any politician could do would be to overdo it at the wrong time. Senator O'Toole got his elevation last week, on which I congratulate him because he richly deserved it. He has been a wonderful Senator and has made magnificent contributions. However, his last one would not be in my top ten. I have always respected his views and I listened carefully and attentively to what he had to say.

This aspect has been debated in a very relaxed fashion and I hope that for the remainder of the evening, week and month there will be no muzzling of anyone. Senators should not allow themselves to be rushed because that is not the intention of this side of the House. There will be no rushing on this side and we do not want the opposite side to be caught in the jam going out the door for the summer holidays. Please do not allow that to happen.

Senator O'Toole is incorrect. A poll was taken since Deputy Olivia Mitchell tabled her amendment. The result was 53 in favour of a seven day poll ban and 47 against. Therefore, the Government is doing something right by supporting the Fine Gael-Labour amendment. There is all-party agreement on the issue. If the Independents have a difficulty perhaps that is why they are Independents. They were all born into the family. Most of them were in Fianna Fáil. Perhaps it is because there was no room in the inn that they had to get in somewhere else. However, it is wonderful to have them here because they make a great contribution. All I ask is that they allow the legislation to be debated and stop filibustering.

Question put.

Burke, Paddy.Connor, John.Coogan, Fintan.Costello, Joe.Cregan, Denis (Dino).Doyle, Joe.Hayes, Maurice.McDonagh, Jarlath.

Manning, Maurice.Norris, David.O'Dowd, Fergus.O'Meara, Kathleen.O'Toole, Joe.Quinn, Feargal.Ross, Shane.Taylor-Quinn, Madeleine.


Bohan, Eddie.Bonner, Enda.Callanan, Peter.Chambers, Frank.Cox, Margaret.Cregan, JohnFarrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Fitzpatrick, Dermot.Glennon, Jim.

Glynn, Camillus.Kett, Tony.Kiely, Daniel.Kiely, Rory.Lanigan, Mick.Leonard, Ann.Lydon, Don.Moylan, Pat.O'Brien, Francis.Ó Murchú, Labhrás.Walsh, Jim.

Tellers: Tá, Senators O'Toole and Quinn; Níl, Senators Farrell and T. Fitzgerald.
Question declared lost.

Before we recommence I remind the House that a Senator may speak only once on Report Stage, excepting the proposer of an amendment who may reply to the discussion on the amendment. On Report Stage each amendment must be seconded. I suggest to the House that we hear the Minister of State on the amendments made by the Dáil before proceeding to consideration of the amendments submitted by Senators. If the House is agreeable we will allow the Minister of State to make—

That is absurd.

On a point of information, if the Minister of State is to speak on the amendments that have come to us from the Dáil, do we then speak on those amendments before moving on to our own amendments?

I am now totally confused. If your answer to Senator O'Meara is correct, we are taking the Bill and what has come from the Dáil before we take any amendments. My understanding was exactly the opposite.

If the House is agreeable we will let the Minister make his contribution. We will then consider the amendments submitted by Senators. Any Senator may speak to those amendments.

I do not understand the reasons for that prima facie. I do not want to be disagreeable but I find it very confusing and wrong. We are going to have the Minister of State opening the debate and all the amendments taken and then our reply to the Minister. Why do we not take things in the order in which they come?

The normal practice is that the Minister informs the House of the amendments that have been made in the Dáil to a Seanad Bill. The reason I suggest this procedure is that we would be following the procedure which is normally followed in the House. After the Minister has made his contribution we will go straight to the amendments. As each amendment is dealt with, each Senator will have the opportunity to speak once on that amendment, excepting the proposer of the amendment who will have the right of reply.

That means that we cannot then respond to the Minister's contribution on the amendments coming to us from the Dáil. We will only speak to the amendments tabled by Senators. I put it to you that we are entitled, as Members of the House, to respond to what the Minister says in the context of the amendments coming to us from the Dáil, before we move on to our own amendments.

I take your point and I am very much in the hands of the Members of the House. If it is preferred that we go straight to the amendments, as they are here, then we will proceed that way.

By this tactic we are foreclosing an element of the debate. Not only that, we are underlining the similarities with the introduction of a completely new Bill in allowing the Minister of State to speak first in this way.

If the House is not happy with that arrangement we will go straight to the amendments.

This matter was discussed last week when the group leaders met the Leader of the House. It was agreed that there would be one hour in which the Minister would make a presentation of the amendments and this would be separate from the other stage. The leaders of each of the groups were to have the opportunity to respond separately to the Minister's contribution.

That arrangement is not in place today. Amendments Nos. 1 to 46, inclusive, are out of order as they do not arise from amendments made by the Dáil. Amendments Nos. 47 to 49, inclusive, are related and may be discussed together, by agreement.

I move amendment No. 47:

In page 94, line 30, to delete "a presidential" and insert "an".

This amendment is put down so that we can air the issue of which polls are subject to this ban and which are not. I cannot understand certain ingredients in this Bill. Why have certain polls been chosen while others have been omitted? Whatever the benefits of banning opinion polls from Dáil elections, to ban them from presidential elections is absolutely absurd. It is extraordinary.

Supposedly, in Dáil elections issues arise which are of some importance to the public and the media. In presidential elections there are no political issues involved. That is one of the big problems. There are no issues at all because they are not allowed to discuss politics. Banning opinion polls removes one of the key influences on that particular election. It is an influence and there is nothing wrong with publishing the influential information. Presidential elections are non-contests in terms of issues. Information on presidential elections is pretty scarce to begin with and the sort of information provided by polls is invaluable.

I contend that opinion poll information influences people in a small way. There is nothing wrong with that because it tells people what other people are thinking. It tells people how many think this, how many think that and how many think the other. Why should people not be entitled to that information? It is material. Someone may say, "This candidate is very close to winning and that will bring me to the polls. I was not going to vote otherwise." That is material and a very good reason for voting. As Senator Manning said in his speech a little while ago, someone else may well decide not to get out of bed because the result is a foregone conclusion according to the polls. That is legitimate and no one is obliged to vote. The information is useful in letting people know there is no point in casting that vote. It is also useful in letting them know that there is every point in casting that vote.

The idea of banning opinion polls when political promises are allowed to go unchecked and unchallenged is ridiculous. The one thing we know about opinion polls is that they are fact. They are information, they are solid and they are accurate. Promises from all political parties and indeed from Independents are inaccurate, dishonest, not kept, exaggerated and totally untrue. They are honoured more in the breach than in the observance, and yet they are allowed to go unchecked. The media will be able to have a field day in publishing promises which mean nothing and will be forbidden from publishing accurate figures. Where are we going?

Someone asked me if I should declare an interest in this. I really do not know whether I should or not, to be honest. I am quite sincere. I have no interest in this, but I am an employee of Independent Newspapers, who probably have an interest, and if that means I have an interest, so be it. I disagree with Independent Newspapers on so many other issues, however, that I do not see why I should declare an interest on an issue in which I do agree with them because it makes no difference to me, as an employee, whether or not opinion polls are banned. I must say, however, that I am an employee in case anybody does not know. It is in my declaration of interests.

There is another area which I do not understand and I have touched on it in this amendment. Why are opinion polls allowed in Seanad elections? The Minister will state that Senators are not democratically elected by a popular vote and, therefore, it does not arise. That is the sort of contorted logic which one would expect from a Government which can put forward this sort of proposal. Senator Norris and I have an electorate of about 40,000. We, or somebody else on our behalf, could easily carry out a telephone poll during a Seanad election. Our electorate is almost as large as that of a Dáil constituency.

Secondly, and more importantly, Senators O'Toole, Quinn and Ryan have an electorate of over 100,000, which is as big as that in any constituency in the country. It may not be a popular election in the sense that there is a geographical area which one can pin it to, but it would be easier still to have an opinion poll carried out among those people. A random accurate sampling of those people could be carried out by telephone and the results could be published.

For some extraordinary reason one cannot have opinion polls in a Dáil election but we can have them in a Seanad election. This is the sort of nonsense which we must put up with in this Bill because it was hastily thought out. In fact, it was not thought out at all.

Opinion polls can be held during by-elections for local authorities. Before anybody says to me that they are not elected democratically, let me say that many by-elections in local authorities are dealt with by nominating substitutes. Senator Coogan will confirm this.

That is correct.

I can see no reason political parties should not carry out opinion polls for sensible reasons before making those nominations to find out who is popular and who is not. Under this Bill they can do that and such polls can be published. If a political party is putting somebody forward in a by-election to fill a vacancy, the most sensible course of action is to carry out an opinion poll to find out who is most likely to be elected at the next election and then put them forward as a substitute. I do not see anything wrong with that. It is a sensible course of action. However, I do not understand why such opinion polls should be allowed and published while other opinion polls are not. I ask the Minister of State, Deputy Dan Wallace, to address that problem.

The reason the amendment was proposed in the Dáil was the by-election. That amendment in the Bill is due to one of the biggest electoral cock-ups of all time. It is a knee-jerk reaction to a by-election result which has come as a result of two parties thinking that it is in their interests to have no opinion polls because of one opinion poll which was published. Fine Gael thought that opinion polls should be banned because they thought there would be complacency as a result of the opinion poll which was taken and their man might lose, and Fianna Fáil thought that the opinion poll did them damage because they had some sort of momentum going and it stopped their candidate in his tracks. I do not know whether they were right or wrong, but one of them was certainly completely wrong.

I commend Senators Manning and Coogan and the rest of the Fine Gael Party for changing their stance on this so quickly.

What about Deputy Noonan? Is he changing his stance? Is the Fine Gael Party doing so?

I am coming to that.

He did a somersault.

It is commendable that a political party can take one stand in the Dáil and an opposite stand in the Seanad.

They call that a U-turn.

That is what democracy is about. I am quite serious. I think what happened here is quite interesting. It is interesting in terms of the difference between the Dáil and the Seanad and of the difference or schism in the Fine Gael Party.

Is he implying that the Senators are not supporting their leader?

Senator Ross, without interruption.

I suppose that Senator Manning, quite rightly, is not bound by front bench decisions any longer. He decided to persuade his colleagues that this was a mistake and he is lead ing them now on the path of righteousness. That is what we want to see in a political party and it is a tremendous achievement to persuade a partner in one's own party in such a short time that he or she has made such a terrible mistake. It was a pretty hasty decision in the first place. I gather it went through the front bench quickly and was not given lengthy consideration, that it was introduced on Committee Stage without a great deal of thought and that on reflection they decided that this issue, which they had raised and which the Government had run with, was one which they should not have run with at all. Therefore, they have come into the Seanad and said that they want a proper debate, and they are right. That is commendable.

What they have done, of course, is left the poor unfortunate Government holding the baby. The Government did not really want this in the first place anyway. We now have the Government, who did not really want it, supporting it and Fine Gael, who raised it in the first place, opposing it.

That is not quite correct.

I congratulate Senator Coogan for being on both sides and for coming down on the right side in the end.

He should wait until I finish speaking before he gives me his congratulations.

This is good stuff. The House will be glad to hear that I must leave for a few minutes but I will be back, but I want to make a serious point before I finish. Opinion polls are not just informative; they are also entertainment. People should not lose sight of that. They are solid entertainment. Opinion polls coming up to general elections are one of the most enjoyable parts of those elections for the general public. People talk non-stop about opinion polls. There is nothing wrong with that sort of entertainment. What is happening here is the politicians are taking two decisions: they are stopping entertainment at their own expense – they would not stop entertainment at anybody else's expense – and they are stopping information about themselves which they do not want people to have. This is utterly inexcusable. I would like to see this proposal to ban opinion polls of any form excluded but in order to have a Committee Stage style debate on this, I am prepared to introduce only these amendments regarding opinion polls at Seanad and presidential elections.

I second the amendment, even though I feel I may be placing myself in some jeopardy in that I may be threatened by the congratulations of Senator Ross. I had noted the heavy irony with which he delivered bouquets of congratulations liberally around the House.

Indeed, there is a glorious inconsistency in the amendments themselves. This is all part of our harassing intent in regard to this Bill. We intend to try to make a dent in it or at least make a mark of some kind on it. When I say it is inconsistent, I mean that it is rather like that old tune, a line of which ran, "I stepped out and I stepped in again", because in these amendments we are deleting the word presidential and inserting a reference to Seanad elections. This creates a nice kind of balance. There is a certain inconsistency in doing so but it is probably a deliberate and glorious inconsistency.

Of course there are all kinds of odd features contained in this legislation. Senator Ross is correct when he says that it has opened up certain risks and chasms. In fact, a Member on the Government side said to me in a moment of exasperation during one of the divisions – I was given permission to quote the Member by name but I will not do so –"This was an amendment of the Labour Party and Fine Gael, was it not? We did not want it." They certainly ran with it when they got it. Within the Opposition parties in the Dáil, I noted with some amusement that Deputy Gilmore stated he was fully in favour of it. Then Deputy Quinn attacked it and said the party would be objecting to it. Deputy Gilmore said he would bow to party discipline and authority. There were masses of inconsistent responses.

In terms of how the Bill can fall short, one newspaper pointed out that there is absolutely nothing in the legislation to prevent, for example, a broadcast or print media source in Northern Ireland commissioning a telephone poll from there and printing it in newspapers available down here. Therefore it will not work, unless the Government, in an act of benevolence towards Northern industry, wishes to boost the sales of Northern newspapers.

I notice another feature not included in the Bill. Because there is a certain definition of a opinion poll, constituents have been in contact with me wondering, perhaps humorously, if it will be illegal for betting shops to take odds on election candidates. That is a kind of opinion poll or survey of the betting public. After all, political commentators frequently refer to voters as "your average punter" before elections. It is quite likely that if somebody hired a van and went around the polling stations, keeping a distance of 100 yards or whatever is specified, he could offer odds to the people going in and out. These examples are absurd perhaps, but the very idea of the Bill seems absurd.

The very absurdity of the Bill should not conceal the fact that it is a matter of very serious concern. I have already referred to a constituent who contacted me by telephone this morning. I also received an e-mail from a graduate of both university systems, an elector in both the constituency represented by Senator Ross and myself and that represented by Senators O'Toole and Quinn. This constituent states:

I write in a totally personal capacity as a member of both university constituencies. I am appalled almost beyond words at the passage in the Dáil of the Electoral Bill, in particular the proposal, almost ludicrous if it were not in earnest, that free expression of opinion be banned. This issue is at the core of the democracy here. Whatever the political difficulties that may be caused by the publishing of these polls in the days prior to an election or referendum, the benefits of free speech vastly outweigh them. I believe that the Constitution has something to say on this also.

Senator O'Toole said that he would attempt to have this referred. He is asking all the Members of the House to write to the President. The Irish National Newspapers Organisation sent me a fax saying they have petitioned the President to refer the Bill.

The correspondence of my constituent, who voted "Yes" in the Nice treaty referendum, continues thus:

What is almost as important is that this plan rushed through in peak of anger after the Government, as Governments do, lost a bye-election, reflects contempt for the electorate. In the first instance, we were too stupid to make up our minds and need to be swayed by the publication of the views of others; in the second, akin to the reaction of the political establishment to results of the Nice referendum, a negative to the establishment is seen as a reflection of the fickleness, perfidy, stupidity and churlishness of the electorate rather than a reaction to the isolation and aloofness of the political establishment. Finally, I hope the university Senators will defend the rights to free speech and free expression.

By opposing this Bill vigorously, we are defending the rights to free speech and expression.

It is important that Senator Ross has tabled these amendments. The inconsistencies are in the manner of a parliamentary tactic. They are rather curious when they include the Dáil. Perhaps the Minister of State will address this. When the Dáil is included, why is the Seanad ignored?

On the Order of Business this morning, I referred to the fact that Fintan O'Toole, a distinguished journalist, in discussing this matter on "Questions and Answers" last night, categorically stated that the Bill had passed. He said, "There has been no debate on this law in the Oireachtas, which has now been passed." Apparently, a highly distinguished correspondent for The Irish Times believes we are a unicameral State. Is it the Government's position as well? Is this the reason the Seanad was removed from the Bill?

Senator Ross is quite correct to include the Seanad. Every time there is legislation of this nature, where the Dáil is mentioned the Seanad should also be mentioned as a matter of course. I am happy to support this amendment and I have little doubt that it will be put to a vote.

The bouquets scattered around by Senator Ross, if picked up, would be found to be very thorny and full of nettles as well. Doubtless, the Senator was being heavily ironic. If he had listened carefully to what was said in the debate on the Order of Business, by both Senator Manning and myself, he would know nobody said anything about the value or lack of value of opinion polls, whether they are of benefit or if they influence people. The issue we raised was not about the benefits of polling seven days before an election or anything of that kind, but concerned the Government's decision that the processing of legislation would be cut off at the knees. The Government made a decision to guillotine a serious aspect of a very serious Bill. We feel very strongly that the opportunity to debate should be given to one of the Houses. I call upon the Minister of State to allow this discussion to be a Second Stage debate to examine all the issues concerned.

Previous speakers made interesting points about the value of retaining polling up to seven days before and election or not at all. Such comments make one reflect on whether one should vote against it. The more I listen to speakers who are against the concept of banning polling, the more I begin to question the issue myself. I have not been fully convinced and I want to hear more debate. That is the purpose of the Houses of the Oireachtas. However, the Lower House decided that the issue would be decided by the Government without consultation. That is not the way to pass legislation. In a true democracy, opportunities are given to everybody to examine every aspect of a Bill. Therefore, we rose to our feet this morning, not as Senator Ross said, with the intention of doing an about turn, but with the intention of having the issue examined and debated fully prior to a decision being made – a decision based on well considered concepts about the value of polling.

In my years in this House, I have not heard such outrage from the public as I have heard about the way this item has been handled, particularly in the other House. I know we do not debate in the Seanad what has happened in the other House – we are debating amendments Nos. 47, 48 and 49. I have great difficulty in understanding why the Government is pushing this legislation through in spite of the total absence of debate in the other House and our not being allowed to have a Second Stage debate on the matter. There will be an inquiry into the constitutionality of the issue.

Words such as dictatorship and fascism were used earlier. These are the words that come to mind when a government begins to act like the present Government. It is incredible that it thinks it can stifle information. This Government is the one that supports a Freedom of Information Act, admired throughout the world. Before freedom of information legislation was introduced, we looked at similar legislation in other countries and created the best legislation there is. I gather that other countries are now looking at our freedom of information legislation. Then the Government comes along with a proposal to stifle information, because it does not want the public to know how other people feel.

One aspect of the proposal is worthy of consideration in relation to the Nice referendum. It seems when the public opinion polls showed a huge majority would vote "Yes", large numbers of people decided not to bother going out to vote and we ended up with a very low poll. I can understand the need for action on that and perhaps that is the objective. However, it is only one of several objectives and, as Senator O'Toole said, it is like taking a sledgehammer to crack a nut. There is no need for this insistance on getting it through this week without debate and with such unseemly haste.

I telephoned a young politician in France last night to ask about the position there, because I understood France had a similar law in place. He told me France had introduced a similar law 15 years ago, but that a Bill is currently before the French Parliament which will overturn the law which cancelled polls one week before elections. I have not heard that mentioned here today or in the other House where no debate whatsoever took place. Here we are jumping into something the French did 15 years ago yet decided to change because they realised they had made a mistake.

Does the Minister of State realise the embarrassment this will cause for a country like ours which has been held in such high regard elsewhere in Europe? We will become a laughing stock. They will ask what the Irish are doing introducing a Bill similar to one the French enacted 15 years ago, perhaps for very worthy reasons, which they have now introduced legislation to cancel.

Ireland used to be the butt of jokes ten or 15 years ago. Irish jokes were always being told on British television. One does not hear those any more. Talking about this last night, we were told that one of the reasons was that the image of the Irish person 15 years ago was of someone who was not very clever or sensible, was on low income and was forced to emigrate because he or she could find work at home. Now the image of the Irish is of young, bright, articulate, intelligent, hi-tech, successful people who are among the wealthiest in Europe. We are very proud of that image. Then we are seen to do this, introduce a Bill and disallow debate on it only to discover that the French have changed their minds about similar legislation they introduced 15 years ago. That is sufficient reason to slow down and think twice about it.

Acting Chairman

We are dealing with three specific amendments here, not Second Stage, which we had here some weeks ago.

We did not have a specific debate on this topic.

Acting Chairman

The Senator is raising more general issues. I ask Senators to address the three amendments.

Let me address the amendment on the presidential elections. Again I refer to France. During the last presidential election in France, a newspaper based in Geneva in Switzerland published a poll three days before the election and invited the French people to check out on its Internet site how they intended to vote. What will happen if UTV decides to conduct a telephone poll of 1,000 or 10,000 people south of the Border during the next presidential election and then decides to publish it as it is entitled to do? Can we say the law is achieving what it set out to do? Of course not, because we would be unable to do anything about it. I have taken UTV as an example because it is on this island and could make local weekend calls so the exercise would not cost much. It would be unfair competition for newspapers although I am not greatly concerned about that.

I hate to think that, as an independent, highly regarded State, we are passing laws that make a mockery of what we are trying to achieve. The Government will pass the law only to find it does not work, having been told by us that it could not work. We are debating all three amendments so this applies to presidential and Seanad elections. We have to think this out. We need to hear from the Minister what steps will be taken if the Irish News, the Newsletter or the Belfast Telegraph decides to conduct and publish a poll here. Will we ban it on this side of the Border? It is censorship not to allow newspapers into the country because they are breaking our law. I do not believe either we would do that, or that we would or should be able to do it.

What happens during a presidential election if a medium outside the State publishes an opinion poll taken inside the State? Will we ignore it or ban it? If those questions are answered, we can allow the next step to proceed. I also ask the Minister how he would handle the scenario that has arisen in France, where a law was introduced 15 years ago to outlaw the publication of opinion polls eight days before elections and which has now introduced a law to cancel it? I urge the Minister to think this through and provide a response that will put to rest the minds of the people. I will support the amendments unless I hear something new to persuade me to the contrary.

The most important aspect of this matter is having available to us the advice given by the Attorney General. Already we know there are conflicting views regarding the advice. In fairness to him and the House, we deserve to know precisely what his advice is. The matter is too important for us to rush ahead and skip over that advice. Mr. Padraig Flynn, who was Minister for the Environment and Local Government in 1991—

Acting Chairman

Again I interrupt to inform the Senator we are dealing specifically with amendments Nos. 47, 48 and 49 and I ask the Senator to address these.

The amendments deal with opinion polls. I assure the Acting Chairman that I will respect his ruling if he decides to rule me out of order. However, I will contribute only once on this matter and beg him to bear with me.

As I said, as the Minister for the Environment and Local Government in 1991 when the idea of banning opinion polls was first mooted, Mr. Padraig Flynn has confirmed that the Attorney General of the day, Mr. John Murray SC, now a Supreme Court judge, sounded a note of caution as to the constitutionality of the proposal. Mr. Justice Murray said that it could be vulnerable to challenge on the grounds that it might interfere with the rights of the public, opinion poll organisations or, indeed, the right of candidates and political parties to impart and receive information. That was then, this is now and we should not move beyond this point at this juncture without having available to us the best legal advice we can obtain.

That advice must come to us from the Attorney General. We deserve to know from the Attorney General that the relevant constitutional provision protecting the right of citizens to express freely their convictions and opinions is not being infringed by anything we do as legislators. That would be a bad day for democracy. If the Government is determined to persist in not making available to the House the views of the Attorney General I hope the President will convene a meeting of the Council of State and subsequently exercise her right to refer the Bill to the Supreme Court for a test of its constitutionality.

Opinion polls can have four possible effects. Their effect can be absolutely neutral. Some people might not pay attention to them and not even read about them in newspapers. They can also increase or induce apathy. This is very dangerous. If an opinion poll indicates a clear-cut outcome some people might not bother voting because they feel their vote would make no difference. Public apathy and cynicism about politics is already on the increase and this, perhaps, represents the biggest single threat to democracy. The falling turn-out at elections and an increased reluctance by people to become involved in politics represents a problem which strikes at the core of the democratic process. In every general election since 1981 the turn-out has fallen and the situation is even worse for referendums.

The third possible effect is that a voter who is very interested in politics might decide to make the maximum use of the PR system and give his number one preference to the candidate who had scored lowest in the opinion poll and work through an order of preference to whomever he wants to favour most. The final possible effect, which has received much comment, is the band wagon effect. People reading opinion polls might wish to support the winner. I heard a prominent political commentator say on television that she reserved the right to join a bandwagon and wished to know where it was going.

Is the Senator discussing the amendments?

Absolutely. I cleared it with your immediate predecessor in the chair, whom I assured that I would make only one contribution on the Bill. You will have done with me soon.

RTE also did a vox pop of which many Senators will have heard. It showed clearly that opinion polls could and do influence people and could also increase apathy. None of us wishes to jeopardise freedom of expression. The nub of this matter is the advice of the Attorney General. I would like to hear this advice before we proceed. Perhaps the Minister of State will impart that advice to the House. I look forward to hearing what he has to say.

It is worth reminding ourselves that we are discussing three amendments, in the names of Senators O'Toole and others. The first proposes that presidential elections should not be included in any ban on opinion polls. The second, in the names of Senators O'Toole and Ross, proposes that Seanad elections should be covered by a ban on opinion polls for seven days before the election date and the third amendment proposes that by-elections to the Dáil should be covered by the ban on opinion polls.

The question of opinion polls has been hyped in the past week and the manner of this hype is regrettable. An article in one of last Sunday's newspapers carried the headline "Just like pigs at the trough, arrogance and greed are the hallmarks of the current Dáil." The article continued at some length on the issue. For the many people in both Houses of the Oireachtas and in local government who have given unstinting and selfless service over many years, that was gratuitously offensive and was unworthy of the person who expressed the opinion. If such intemperate language was used about a minority there would be an outcry and it would be described as racist, sexist or homophobic. It is regrettable that the debate has descended to that level.

What influence do opinion polls have on presidential, Seanad and by-elections, to make my point relevant?

I should have prefaced my remarks with that phrase. It is very good.

I thank the Senator. In my four years in the Seanad I have never seen the power of the media more strongly in evidence than it has been today. If the hype of the past week had not materialised there would not have been any controversy regarding this legislation. The ordi nary man in the street will not be influenced by the decision we make on this issue.

Then why are we doing it?

The people who have tabled these amendments have been strongly influenced by the media. The media have an entitlement to express their point of view. However, the Irish electorate, which is politically sophisticated, has an interest in the outcome of opinion polls and in politics generally. It would have been better if it had been acknowledged that opinion polls are extremely good copy. They are commercially valuable for newspapers and I see nothing wrong with newspapers protecting their own commercial interests. However, it is disingenuous to raise this issue under the guise of protecting freedom of speech.

The Senator should tell the Attorney General that.

I am glad that, on mature reflection, Senator O'Toole has come on-side on this issue. His loquacious contribution earlier and his feigned indignation were obviously for the benefit of "Oireachtas Report".

Is there an edition of "Oireachtas Report" tonight?

I hope we will now have a more thoughtful contribution from him.

There is actually no edition of "Oireachtas Report" tonight. The Senator's contribution will be lost.

All that is being banned is the systematic taking and publication of polls within the last seven days of an election campaign. I know of no scientific evidence on this matter but there may be anecdotal evidence.

Amendment No. 49 refers to by-elections. On the evening of the count in the Tipperary South by-election, after watching the second half of the Munster final on television, I listened on my way home to a radio discussion of the outcome of the by-election. A number of political commentators were participating and one of the issues raised was whether the TG4 opinion poll had in some way influenced the outcome of the election. The general view from the participants, who were all representative of the media, was that that it had not, with one exception. That exception was that they felt the Labour candidate who was at the bottom of the TG4 poll with about 16% may have suffered by people transferring votes elsewhere because of the opinion poll. In my view that type of anecdotal evidence is important and needs to be factored into the debate on this issue.

Our political system, based on proportional representation, has a large sensitivity to a small number of votes. Many seats are won by only a handful of votes and therefore anything, other than the merits of the candidates and political parties, that unduly influences the election should be looked at seriously. Those seats can decide the Government and there is a considerable amount at stake politically and nationally.

After the last referendum, a number of people said to me in almost apologetic terms that they had not voted and regretted it. Because of the opinion polls leading up to the vote, they had assumed that it would be passed. That can occur either way. We want to encourage as many people as possible to participate at elections. A worrying aspect of the democratic system in the western world – not just in Ireland – is the number of people not exercising their franchise. I would not suggest that having opinion polls is the primary reason, but if they are influencing even a small proportion of people not to exercise their franchise, then there is merit in doing it.

Opinion polls can be carried out and published at any time other than that one week.

On a point of order, are we still dealing with amendments Nos. 47 to 49, inclusive, or has the Government very graciously yielded to allow us to make Second Stage speeches? We would respond with great alacrity if that were the case.

Acting Chairman

I have already pulled up Senator Coghlan on this and I would appreciate if Senators would stick to the amendments before us. There are other options for speaking on the Report Stage of the Bill.

If Senator Norris had been here, he would have seen how I related my contribution to the amendments.

Absence is the highest form of presence.

For Senator Norris's benefit, I am saying that if he had been here, he would have heard that.

It is not for my benefit, because I do not believe a word of it.

This is an important issue and it is appropriate that we are having a debate on it. I appreciate the latitude the Chair has given and it will obviously not follow through to other amendments.

I have heard nobody give any argument either in the media or here today against the banning of opinion polls within the last seven days before an election. I have heard people making all sorts of comments.

Will we start all over again?

Goebbels is alive and well in the media and, listening to the contributions earlier today, he has many disciples.

I would like to hear the Minister speak before I do.

Acting Chairman

That is not in order. On the Report Stage amendments, Senator Ross is the only person allowed to reply after the Minister. If anybody else wishes to speak, they must do so before the Minister replies.

I understand that Senator Ross is the only person who can speak twice, but surely it is in order to request to hear the Minister's view on all this so that we can make this mean something.

Acting Chairman

This is not Committee Stage; it is Report Stage. Only the proposer of the amendment can reply after the Minister.

This is more of the difficulty that we are having with this Bill.

On a point of information, at the very outset the Minister offered to come in first. It was put to the House and the House—

Not on this though.


Acting Chairman

That is not a point of information. In reply to Senator O'Toole, only the proposer of the amendment can speak after the Minister. Any Senator who wishes to speak before the Minister may now do so.

I have no complaint about the Minister – that was not the point. It would be far more appropriate if the Minister spoke in the midst of the debate so that there could be a response to the views he had articulated. The Minister is as much confined, constricted and constrained by the rules of the House as we are so it is no reflection on him.

Having listened to the points made by Senator Walsh, it is extraordinary that it has come down to press bashing. We are being told that the electorate will not be influenced by the press or opinion polls, but it defies—

That is not what I said. That is a distortion.

Having listened to Senator Walsh—

He did not listen carefully enough.

Having listened to Senator Walsh explain to the House my reasons for speaking when he described my contribution as feigned indignation, I will certainly take every opportunity to attribute to him, as I see it, the points he made.

I would like to defend myself.

I heard him bashing the press, which is what it is about.

I would like to hear more about the amendments.

I heard him being unable to cope with any negative press publicity. I heard him say that we were all doing this for the honour and glory on a television programme tonight, which will not be broadcast at all. If this is as factual as the rest of what he had to say, I do not know where we are. He makes the point that this is in the guise—

Acting Chairman

I would appreciate it if the Senator would stick to the amendments.

In the interests of the way we do our business, I was amazed and appalled that you allowed the previous speaker the latitude you did. However, having done so, I promise I will not stray one iota beyond the points that you tolerated from him. What is sauce for the goose is sauce for the gander.

According to the previous speaker, this is being dealt with under the guise of freedom of speech. If we stop people from articulating their point of view, that is a freedom of speech issue regardless of whether I or other people like it. People may take the view that this is not kosher or correct, but if we stop the media, academics and polling companies from pooling together the views of the electorate, that is a curtailment and a restriction on free speech.

We are not doing that.

That is why I am utterly opposed to what we are doing here. In deference to the Chair, I would not go beyond these amendments, but I felt that there was need to make a point. I accept that your ruling is correct and I appreciate your tolerance on it. I will now come back to the issue and the amendments we are dealing with. We felt it was necessary to put down these amendments, not because we wanted these particular proposals to be applied to elections, but simply to point out how ludicrous the legislation is, how rushed it has been and how it has been cobbled together.

The definition of an election to this House does not even include the issues we mentioned. For the sake of posterity we would like to put our hands up and say we are here too. We must also provide for presidential elections – we should look at all elections and treat them equally. We cannot accept the definition of an election which does not include elections to this House. Maybe we are just trying to make ourselves seen and heard, or being assertive. Maybe we want to protect the presidency in the same way. Even this negative legislation should include all elections in its definition.

Can we speak on the section as well as the amendment?

Acting Chairman

No, the Senator must speak to the amendment. The Senator is well aware that—

I want the ruling to be on the record.

Acting Chairman

—he cannot speak to the section. The Senator must address the amendment.

Therefore the only issues we can deal with are the amendments to the amendment. The Bill was passed by Seanad Éireann on 21 June and has returned with two pages of changes concerning section 59 in particular. Is the Chair ruling that we cannot speak on the major amendment to the Bill?

Acting Chairman

The Senator can speak to the amendments before the House.

There is a significant point here. There are two pages of amendments made by the Dáil, which we have previously not seen. I am not trying to be awkward, but I want to make a point. I am not seeking to create a difficulty or embarrass the Chair. However, I want to point out that two pages of changes were made in the other House, introducing new sections to the Bill. Is the Chair saying that this House cannot discuss the new section?

Acting Chairman

I am not saying that.

This will become important when I challenge the process later. I am not challenging the ruling of the Chair, I just want the ruling of the Chair to be on the record.

Acting Chairman

When we have disposed of the amendments, the question, "That the Bill be received for final consideration", will be proposed and the Senator can then make his contribution, as I have already said.

When can we speak on the issues raised by the amendments made in the Dáil? We are faced with a situation where we cannot discuss them until we have changed them.

I wish to clarify matters for the Senator. When we have disposed of all the amendments now being considered, the Minister will address the House on the amendments made by the Dáil. At that stage each Member will have an opportunity to speak about the amendments. Therefore, the Senator will have an opportunity to speak on them.

Therefore, we cannot deal with the amendments until we decide how we change them. Is that correct?

We cannot deal with them now until we have disposed of these amendments. At that stage the Minister will be called on to outline to the House the amendments made in the Dáil, that is, to give a report of the Dáil amendments to this House. Then every Member will have an opportunity to contribute if they so wish.

So at that point we can debate the issue again. I will hold fire until that time.

I did not intend speaking on these amendments, but I have been encouraged to do so by some of the comments made. I commend colleagues on this side of the House for tabling these amendments and for the effect they are having, as outlined by Senator O'Toole. They clearly show the rushed and ill thought-out manner in which this Bill has been changed, despite what has been said. Clearly there are extraordinary internal inconsistencies in the amendments made in the Dáil – one does not have to spend too much time reading them to figure that out.

I wish to speak about how the media have reacted to this issue since it was first raised last week, and I beg the indulgence of the Chair in this regard as he has allowed other people to speak on the matter. I have listened to comments made, particularly on the other side of the House, on how the media report proceedings in the House, how they comment on our business and on politics in general. To a certain extent I can relate to the sensitivity of Members or politicians who, in the words of Members on the Government side, are hard-working, decent and fair public servants—

They refer to politicians as pigs. It is atrocious.

—as most of us are. I have read the commentary in the media since last week. Undoubtedly some of it is over the top.

I ask the Senator to return to the amendments. We can discuss the matter raised by the Senator later if she so wishes.

With respect, the Chair has allowed certain remarks—

Acting Chairman

We must return to the amendments.

These amendments show up the inconsistencies in the legislation. Sensitivity to commentary in the media has gone way over the top in the House. We should remember that the media are entitled to describe us—

Not as pigs.

They are. The commentary of the Senator bordered on paranoia. Can we please stand back and remember that we are talking about democratic debate? So what if we are referred to as arrogant?

We were referred to as pigs. One headline read "Just like pigs at the trough".

There is arrogance in politics. We have free speech in a democracy.

That is how we were described.

Acting Chairman

Senator Walsh has made his contribution. He should allow Senator O'Meara to contribute.

I defend the right of the Sunday Independent to use that language, though I do not agree with it.

The amendments are about opinion polls. Amendment No. 47 seeks to delete "a presidential" and substitute "an", amendment No. 48 seeks after "Dáil" to insert "or Seanad election" and amendment No. 49 seeks to delete "and, in the case of a Dáil election, includes a bye-election". Senator Quinn referred to Government legislation, but I would refer to it as Dáil legislation as the Dáil amendments were first introduced on Committee Stage on 28 June.

Is the Senator talking about Senator Ross's amendments?

The amendment was tabled by Deputy Olivia Mitchell in the name of Fine Gael and was as follows:

In page 32, before section 35, but in Part 2, to insert the following new section:

"35.–No opinion poll shall be taken or published in the 7 day period prior to any election or referendum and no opinion poll whatsoever shall be published in the 7 day period prior to any election or referendum."

Those were the terms, and in the new legislation section 59 states:

(3) A person shall not carry out or cause to be carried out an opinion poll on any of the 7 days immediately preceding the polling day at an election or referendum.

(4) A person shall not publish or cause to be published on any of the 7 days mentioned in subsection (3) the results of an opinion poll, being a poll that–

(a) has been carried out on any of those days, or

(b) has been carried out before the first of those days and the results of which have not already been published before that time.

That is what Fine Gael sought and what Labour supported at the Select Committee.

I cannot understand why Senator Coghlan is raising the issue of the Attorney General now as that must have been discussed earlier. Why did they not think of it at that stage? They were the people who introduced the measure that has been passed by the Dáil. I am also surprised at the silence of their leader in this controversy. Deputy John Bruton first mentioned the issue of referring the matter to the Attorney General and he got great backing for this – including from Senator Manning, who everyone knows is a supporter of Deputy John Bruton.

Now please hang on.

Acting Chairman

Will you stick to the amendments please?

I am just saying what I think. It is similar to what happened in the rail strike last year where there was an internal difference in the trade union. This is an internal difference in Fine Gael and this is why they have come—

Acting Chairman

The amendments.

As far as opinion polls are concerned, I never liked them. They are a recent phenomenon and banning them will not impair freedom of speech. There is always freedom of speech in the press, but an opinion poll carried out on a sample of 300 people is not accurate and can be misleading.

I will address the amendments before us. Amendment No. 47 seeks to delete a presidential election from the provisions of the section. The amendment is not accepted as opinion polls could have a more serious effect on the outcome of a presidential election than other elections because of the nature of the election. It was claimed by the Fine Gael candidate that this occurred at the 1990 election.

Amendment No. 48 seeks to include Seanad elections in the prohibition of opinion polls. Seanad elections are excluded as they are not direct elections and it would be difficult to conduct a professional poll among such a disparate electorate—

I am sorry but I did not hear the last phrase clearly. Did the Minister of State say "difficult" or "different"?

The Seanad elections are excluded as they are not direct elections and it would be difficult to conduct a professional poll among such a disparate electorate. Also the elections are to different panels in the case of panel elections or different university establishments. An Opposition amendment was accepted on the Seanad Committee Stage debate to exclude Seanad elections from some of the Bill's provisions because of the vocational nature of the Seanad and now I am being asked to include Seanad elections.

Amendment No. 49 seeks to delete Dáil by-elections from the provisions of the section. I cannot accept these amendments and ask the Senators to withdraw them.

The Minister's reply was an insult to the House. The Minister read a brief and contemptuous script which replied to virtually none of the points that were made.

If the media are that easily insulted then what about the poor politicians?

Acting Chairman

Order, please. Senator Walsh has made his contribution.

This is typical of the attitude of this Administration – not only to the people but also to the Parliament. None of the points, bar the bare points in the amendments, was addressed by the Minister. I would have thought that the Minister, although he is supplied with a script – and we accept that – would have taken the trouble to take the points that were made and replied to them. Some people here went to a great deal of trouble to make serious points in this debate and they have done so all day. If the Government does not take this particular Bill seriously, then that is fine if they want to rush it through but it is showing a complete contempt for the Seanad as they did for the Dáil on this particular Bill.

The attitude of the Government on this Bill is quite simple. I commend Senator Walsh at least for speaking on it – although I do not agree with him he spoke on it and did so articulately – and Senator Rory Kiely for putting a point of view with which we do not agree. At least they are defending it. There is another point of view – we are not so intolerant on this side that we do not believe there is another point of view – but for the Minister to come after God knows how many speakers have made serious points on these amendments and to read a one page script written by civil servants makes me wonder what is behind this Bill. I would have expected – and I accept that he is a Minister of State of great competence – that he would come here with the authority and respect for this House that he would actually reply to the points made here. This is inadequate and contemptible.

Let me take one or two points which the Minister made – I think he only made two, so it will not take very long. He addressed the issue of the Seanad elections. He is completely wrong about that. Obviously the Government did not think this through. It would be the simplest thing in the world – not difficult – to get a sample of Senator Quinn's constituency and take an opinion poll by telephone on it. I believe it consists of some 100,000 people now and the Minister can correct me, but is that not the size of an average constituency? We are talking about a geographical constituency for the Dáil and a non-geographical constituency for the Seanad – the numbers are roughly the same. Let me tell the Minister how difficult it would be. You get a book with 100,000 names in it, look up their telephone numbers, dial numbers which have been selected at random and ask them which way they are going to vote. That is an opinion poll. It is very simple to do and would be just as accurate as any other telephone poll that was taken and which is forbidden.

There is an extraordinary anomaly there – it just was not thought about. This is a completely cocked up Bill and there is no logic behind it whatsoever. Senator Quinn might well think of doing that at the next election because that sort of opinion poll would give very valuable information. I have done it in local elections before – if you get a reasonable sample you know where your strength is and find out what the issues are. It is just a formula and then you get people to vote for you. I did it myself in Bray. I was miles behind in the first local election then did an opinion poll, found out where the strength in every camp was, found out what the issues were and the idiots went and elected me. That is what happened and it can be done at Seanad elections. Let us not have this kind of inconsistency that is going on. It is perfectly fair to do it at Seanad elections and even on the panels. Any Senator here can correct me on this; there are about 900 or 1,000 votes on the panels, and one could easily conduct an opinion poll there that would be pretty accurate. Maybe because of the nature of the electorate they would not tell the truth in that case. There may be a difficulty there as they are notable for not telling the truth.

To talk about the vocational nature of the Seanad is nonsense. It is not the vocational nature of the electorate – it is utterly irrelevant when it comes to the electorate – but only of the nominating body. One is not going to be polling the nominating body, but the councillors, Deputies and Senators who have votes. Out of those 900, one could easily get a good sum which might give one an accurate response. There is inconsistency in what is being said.

The Minister of State did not reply to the point I made about the Presidency or anybody else. There are no issues in presidential elections. They are mindless beauty contests. There cannot be any issues because the President has to be above politics by definition. Opinion polls are probably the most accurate, interesting and relevant information one can get on presidential elections because they are solid facts. They allow one to know where the various candidates stand and they influence one's vote. There is nothing wrong with that. To know where public opinion stands is a valuable tool when exercising one's democratic right. I do not accept that these issues, minor as they may seem in the bigger political picture which has exploded in the Government's face, are being considered.

There is some validity in what Senator Walsh said about the press being somewhat partisan on this issue. I cannot see how we can blame them. One would not expect them to do anything else. If we said to the press, we will ban advertising, we would not expect them to say that is a good idea, that they will not allow stories that sell newspapers. Opinion polls happen to be an issue that sells newspapers, but they also happen to be something that the public want. That is the whole point of them. I do not know very much about selling newspapers, but I know that opinion polls sell them. I accept that, but there is nothing wrong with that. There is a great hunger for this type of information. That is why newspapers sell more if they carry an opinion poll on the front page. The population want and have a right to that information. For people to say the press are getting hysterical is like saying they should not have the right to defend what is a commercial interest to them, but it is not an evil commercial interest, it happens to be a commercial interest which the public also want. The evidence is there that newspapers sell more when they carry opinion polls. This has been presented—

Acting Chairman

I ask the Deputy to speak to the amendments.

I am addressing Senator Walsh's points which I am allowed to do.

Acting Chairman

The Deputy should speak to the amendments.

Acting Chairman

Please do.

I am doing so and I will continue to do so. Public opinion polls – I am addressing them specifically for presidential elections or Seanad elections – are something in which the public and the press have an interest. If we ban them for presidential elections or Seanad elections, we will deprive the public of something they want. It is silly and paranoid for Fianna Fáil to indulge in that sort of press bashing. I do not accept what Senator Walsh said about the Sunday Independent for which I work. I know the article to which he referred. I asked the Library to get some of the latest articles—

Acting Chairman

The Senator is straying from the amendments.

I am, but these articles are relevant and I will read them into the record if the Chair wishes.

Acting Chairman

The Senator may not do that when speaking to the amendments. He may do so later if he wishes.

These apply directly to the point I am making about presidential elections. The Minister of State, Deputy Molloy, in an article last week, referred specifically to banning opinion polling in the week before an election. That applies also to presidential elections, which are included in this amendment. Bobby Molloy wrote an article—

Acting Chairman

The Minister, Deputy Molloy, please.

Sorry, the Minister, Deputy Molloy. I thought the Chair was addressing me as Minister.

The Senator should have respect for this side of the House.

I see the Senator is sitting on the opposite side.

The Minister of State, Deputy Molloy, made a coherent and valid case for what the Government has done. That appeared in The Irish Times yesterday or the day before – I am not sure of the date. John Waters who is in a prominent position was allowed to have a go quite freely and say that he believed that banning opinion polls was perfectly all right. This is not completely and utterly one-sided. Partisan articles have been written on the other side. It is also insulting to think that in presidential elections or other elections the public will be bamboozled by articles on one side and they will not get to consider the other side. The press does not have that sort of power. Where the power lies in the media is not in the press but in television and radio. They are far more powerful than the press. They make a far stronger and far more lasting impression on people. It is absurd to be paranoid about the press.

The Minister of State did not respond to one or two other points raised by speakers to which he should have responded. Once one suppresses information of this sort, where does it stop? Who makes these decisions that one thing is bad for people to hear and another thing is good for them to hear? If this is allowed, and I am being serious about this, the next thing that will be stopped will be the presenting of ideas. Ideas are far more dangerous than information.

There are none on this side of the House.

There are no ideas but there are plenty of people. That is why we will lose. Ideas are far more dangerous and subversive than information. If the presenting of information of this sort is to be stopped in the last seven days – some people wanted it to be 14 days – before presidential or Seanad elections, the next thing they will do is stop ideas being presented in these types of elections. I can see that happening because they are deciding that information of this sort is bad for the public.

We saw censorship here before. I happen to approve of it in certain situations where violence is involved. We got rid of censorship under section 31. We are now seeing censorship of completely and utterly harmless, but extremely entertaining and important information. The next thing we will see is censorship of more information and then we will see censorship of ideas.

We are going down a very dangerous road. I do not think the Government has any evil intent in this. It has blundered into this. It played a little political trick by trapping the Opposition into taking a position which it did not really want to take. It then decided to run with it, but its heart is not in it.

Before I put the amendment to a vote, I ask the Minister of State in subsequent amendments to reply to points made by individuals. If he is going to read from his script, which he is perfectly entitled to do, he should also reply to the points made by individuals in the House.

Acting Chairman

Are the amendments being pressed?

They are.

Question put: "That the words proposed to be deleted stand."

Bohan, Eddie.Bonner, Enda.Callanan, Peter.Chambers, Frank.Cox, Margaret.Cregan, JohnFarrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Fitzpatrick, Dermot.Glennon, Jim.Glynn, Camillus.

Hayes, Maurice.Kett, Tony.Kiely, Daniel.Kiely, Rory.Lanigan, Mick.Leonard, Ann.Lydon, Don.Moylan, Pat.O'Brien, Francis.Ó Fearghail, Seán.Ó Murchú, Labhrás.Ormonde, Ann. Walsh, Jim.


Burke, Paddy.Connor, John.Coogan, Fintan.Cosgrave, Liam T.Cregan, Denis (Dino).McDonagh, Jarlath.Manning, Maurice.

Norris, David.O'Dowd, Fergus.O'Meara, Kathleen.O'Toole, Joe.Quinn, Feargal.Ross, Shane.

Tellers: Tá, Senators Farrell and T. Fitzgerald; Níl, Senators Quinn and Ross.
Question declared carried.
Amendment declared lost.

I move amendment No. 48:

In page 94, line 30, after "Dáil" to insert "or Seanad election".

I second the amendment.

Amendment put.

Burke, Paddy.Connor, John.Coogan, Fintan.Cregan, Denis (Dino).McDonagh, Jarlath.Manning, Maurice.

Norris, David.O'Dowd, Fergus.O'Meara, Kathleen.O'Toole, Joe.Quinn, Feargal.Ross, Shane.


Bohan, Eddie.Bonner, Enda.Callanan, Peter.Chambers, Frank.Cox, Margaret.Cregan, JohnFarrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Fitzpatrick, Dermot.Glennon, Jim.Glynn, Camillus.

Hayes, Maurice.Kett, Tony.Kiely, Daniel.Kiely, Rory.Lanigan, Mick.Leonard, Ann.Lydon, Don.Moylan, Pat.O'Brien, Francis.Ó Fearghail, Seán.Ó Murchú, Labhrás.Ormonde, Ann.Walsh, Jim.

Tellers: Tá, Senators Ross and Quinn; Níl, Senators T. Fitzgerald and Farrell.
Amendment declared lost.

I move amendment No. 49:

In page 94, lines 31 and 32, to delete "and, in the case of a Dáil election, includes a bye-election".

I second the amendment.

Question put: "That the words proposed to be deleted stand."

Bohan, Eddie.Bonner, Enda.Callanan, Peter.Chambers, Frank.Cox, Margaret.Cregan, John.Farrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Fitzpatrick, Dermot.Glennon, Jim.Glynn, Camillus.

Hayes, Maurice.Kett, Tony.Kiely, Daniel.Kiely, Rory.Lanigan, Mick.Leonard, Ann.Lydon, Don.Moylan, Pat.O'Brien, Francis.Ó Fearghail, Seán.Ó Murchú, Labhrás.Ormonde, Ann. Walsh, Jim.


Burke, Paddy.Connor, John.Coogan, Fintan.Cosgrave, Liam T.Cregan, Denis (Dino).McDonagh, Jarlath.Manning, Maurice.

Norris, David.O'Dowd, Fergus.O'Meara, Kathleen.O'Toole, Joe.Quinn, Feargal.Ross, Shane.Taylor-Quinn, Madeleine.

Tellers: Tá, Senators Farrell and T. Fitzgerald; Níl, Senators Quinn and Ross.
Question declared carried.
Amendment declared lost.
Amendment No. 50 not moved.

I move amendment No. 51:

In page 94, line 36, after "State" to insert "over eighteen years of age".

This is a matter of definition. I am somewhat confused by this clause. It is really a matter of drafting and perhaps the Minister could help the House in this. Section 59(1) states:

"opinion poll" means a systematic inquiry conducted by means of questioning a sample of persons considered to be representative of the population of the State or any part thereof for the purpose of ascertaining the likely opinions of the population of the State as a whole or part thereof on matters relating to an election or referendum referred to in subsection (3) including the manner in which the population of the State or part thereof may vote in such election or referendum;

I assume this excludes by definition anyone under the age of 18 years, but what if an opinion pollster or an organisation or an individual, wishes to poll people who are under the age of 18, and is that legal? I presume this will be taken and is assumed as being people over the age of 18 and therefore being of the age of majority, but it does not say that anywhere. I would like to know where and how this is defined and why we are to understand that.

This issue concerns a matter of some significance. Members of the House will be aware that there is a very pro-active attitude among teachers to gain the interest of students in the democratic process. It has become common in many schools to role-play an election at election time. The children are encouraged to express their views and newspapers regularly publish the results of the poll taken in local schools and compare how close the results are to the actual election results.

The Bill as published defines an opinion poll as: "a sample of persons considered to be representative of the population of the State or any part thereof". This goes way beyond the question of opinion polling for elections. These might be the views of school students who do not even have a vote. This is now part of normal school work, it is part of civics teaching in most post-primary schools. It also features at primary level and it is used as an attempt to deepen the engagement with the democratic process, to ensure that there is a greater understanding of the democratic process of elections. People are encouraged to participate in elections. The school class will debate the election, talk about the issues, look at the election material and offer points of view. A mock or quasi-election is then held and the results and conclusions are published. This is now very definitely a breach of this section.

It probably indicates some of the worries that this legislation will intrude into the most unlikely parts of the life of the citizens and society. I would have expected this to be discussed with amendment No. 67, which deals with persons engaged in polling for academic or research purposes. This is one of the daft consequences of this proposed legislation and there are some others also. I hope the Minister will accept this amendment and at least ensure the normal educational processes and the operation of civics classes and the chance to give students a greater understanding of the electoral process would not be interfered with.

I do not misunderstand the section. It is absolutely clear in its meaning. Prior to the last referendum the various Departments circulated information about Europe to schools. There was no referendum on the euro but there might have been. We are seeking to bring children and young people to a greater understanding. Effectively, that activity would be in breach of the legislation and that is another reason for not going through with this ridiculous, ludicrous, insidious and invidious Bill. I ask the Minister of State to recognise that the clean thing to do would be to withdraw the whole thing. If he cannot do that he should at least ensure that those who are not adults, who are not voters and who are part of the school system are exempt from this legislation.

I thank the Independent Senators for putting down this amendment. It has the effect of showing the daft nature of this proposal when it is closely examined. Of course, we are the only ones getting an opportunity to do that.

When I read the definition of "opinion poll" it occurred to me straightaway how broad it is. In a school a leaving certificate or pre-leaving certificate class of 17 year olds could be barred from holding their own opinion poll. That is daft in the context of civics classes, learning about politics and training in the political system before engaging to a full extent in it. It shows up how crazy this proposal actually is. I appeal to the Minister to accept this reasonable and simple amendment thereby avoiding a proposal the applicability of which enters into the realms of craziness.

A number of Members have said it was never the intention of the proposers of this amendment to restrict the free flow of information. The thinking behind it was to avoid undue influence by opinion polls on the voter. That was based on the thinking that the voter is influenced by opinion polls despite the fact that we have no evidence to that effect. Earlier in the day I would have said the same but as the debate has gone on I am beginning to wonder. I reiterate that we have to look again at the proposal before us here. The implications are not only daft, some of them are actually horrendous to contemplate.

No one would do other than encourage participation in civic classes. It gives young people an interest and an insight into what is not the most easily understood electoral system in the world – our system of proportional representation.

The word daft was used but the interpretation being put on this is not just daft, it is also mischievous. Though I am no lawyer, section 59 seems fairly straightforward. It states:

"opinion poll" means a systematic inquiry conducted by means of questioning a sample of persons considered to be representative of the population of the State or any part thereof.

Schoolchildren could do that.

Surely it is implicit in the wording that children and schools are not included.

It is in my eye implicit.

To say that is a distortion and adds to the hype we have seen from the other side of the House all day. People are talking about having meaningful debate on the issues but it does nothing for the standing of the House to be nit-picking purely for the sake of it.

This is a new approach to legislation.

Logic would tell anyone, apart from those who obviously have not read the wording—

Read subsection (3).

Logic tells us that no judge in the world would prosecute children for conducting an opinion poll at any stage, be it during an election, after an election or at any other time.

If it was in the law he would.

It is ludicrous of the Opposition to put forward such propositions.

In this House we try to improve legislation and one of the reasons we do so is that we want to ensure the law never becomes a laughing stock. We want to ensure that we never come to a pass such as that referred to by Senator Walsh whereby we pass a law and instruct the Garda to ignore it because if it is tested in court the judge will throw cases out because he will realise they are not covered by the intention of the law. That is such bad law. It is such bad thinking and something that should never happen in this House. If we pass a Bill it becomes law because it is to be enforced. I spoke earlier on the Waste Management (Amendment) (No. 2) Bill, 2000, about the dog muzzling law enacted many years ago and about which Senator O'Toole often talks. If we jump in without attention and pass legislation in the knowledge that it is not going to be enforced, then we are making a laughing stock of ourselves.

One of the surveys carried out regularly which makes us hold our heads up high is the democratic survey. It shows that Ireland is high up in the democratic stakes. That is judged by the examination of a number of the different freedoms we have. We are reasonably high up because of education whereby we have instilled in young people a sense of how the democratic process works. One of the ways in which it works is through those young people we have spoken about of 17 and 18 years of age. In all the schools I know transition year – at 16 years of age – is where this instillation takes place. Now there is also the leaving certificate applied whereby skills and intelligences that are not otherwise measured are measured so that the seedbed of those talents is fertilised to ensure they grow.

One of the ways that is done is to involve young people in opinion polls coming up to elections. If we are now going to provide that is against the law it is very bad. If this was taken in the cool calm of a normal debate where the Minister listening to the case being made was accepting amendments, I have no doubt that the Minister would say he understood the point. Then this would not apply to anybody under the age of 18 years. Yet I have a sense the Minister of State is not going to say that. I sense he is not going to take this very good amendment on board. I am not sure what words he will use to decry it but it is wrong if he uses words such as "well, that is not the intention of the Bill so I am sure that no judge will ever prosecute such persons".

That is not good lawmaking. Either the Minister reconsiders and takes this whole Bill back for consideration of a Stage or he accepts this amendment. There is no in between in this case. We will damage the infrastructure of our democratic process if we do not manage to make this the sort of Bill we can stand over and declare ourselves proud of as good legislation. Let us make sure this amendment is accepted or drop the whole Bill.

I support what has been said. Not alone are these opinion polls and samplings conducted in transition year in secondary schools, they are also done in primary schools. The definition of "opinion poll" has to be very clear. At first glance one would take it that the sample used would be taken at random from the register of electors, but that is clearly not the case. Clearly there is no such commitment set out in the definition. It can be any sample. It is possible that the sample could be one of children attending a primary school.

In many primary schools in my area this exercise is gone through during elections. In two cases of which I am aware opinion polls conducted in a certain school reflected accurately the tally of the local polling station in the election two days later. It is extraordinary that these opinion polls were correct almost to a vote. They were accurate to an extraordinary degree. One might say that it was an exercise in fun in many ways and it was a serious exercise in a sense, but nevertheless it would appear that it could be a serious offence under this legislation.

Therefore, the Minister of State, Deputy Dan Wallace, must make a clear statement here regarding the sample to be used. Either there must be a clear definition or, as was suggested, the Bill should be taken back and reworked totally in the next session in October. He should not turn the law into what Mr. Bumble called "a ass". If the interpretation to be taken from this is, as it appears, that this kind of civics exercise which is carried out in all schools nowadays cannot proceed without fear of sanction from the law, the Government will be a laughing stock.

On a point of order, I want to explain to the House that I did not refer to primary school pupils because of the fact that the age of criminal responsibility has been raised to 12. I felt it did not apply to them in that sense. Senator Connor is absolutely right. Opinion polls are conducted in primary schools. However, I do not think the law would apply to them in this regard.

In relation to the matter raised in the case of schools, the poll would have to be representative of the population of the State. It must be related to an election. If students are not voters, then the poll would not be directly related to the election. Classroom polls are not normally made for publication. However, there could be some press reporting of the event.

In relation to the amendment, this amendment seeks to insert the words "over eighteen years of age", into the definition of opinion polls. If the people carrying out the poll questioned people under 18 years of age, then the case for prohibition and publication in the section would be stronger. One must, if one can, rely on the professionalism of the polling organisations in the matter. The proposed amendment is not considered necessary and in the circumstances I cannot accept it. The Senators may wish to withdraw it.

The Minister of State's reply convinces me more than ever that this amendment is actually necessary. I am deadly serious about it.

He deceived the House.

Yes. He said it would be representative of the population of the State but he left out the next few words, that is, "or any part thereof".

A classroom would not be representative.

It is representative of "any part" of the State. The Senator should not tell me that the class is not representative of any body at all. That is typical of the patronising element which has gone into this Bill.

The Minister of State left out those words. I do not think he did it deliberately but he was probably misguided by somebody. To say that school children are not representative of any part of the State is patently and self-evidently untrue. They represent themselves.

The more I think about it, the more ridiculous I think this now becomes. I do not know whether the Minister of State is actually saying that these polls will be banned or that they will not be banned. He is not telling us. I think he does not know.

He went on to say that they are not normally meant for publication and that may be so, but they could be published. If I get an opportunity in my professional capacity to publish the opinions of school children at the next election, I will put them in a newspaper.

Tony Blair announced his election campaign in a school.

Senator O'Toole is quite correct. Therefore, they can be published. He chose a school because it was representative of a very significant part of the state. He felt it was such a telling image that it was a good place to launch that campaign.

This is just bad drafting. It is a bad Bill. It is badly thought out. This will be a running sore and it will be an issue in the next election. There will be schools which will conduct polls and the question will be whether the teachers can be prosecuted for carrying them out. Perhaps there will be the wonderful vision where we lock up a few school teachers, which in other circumstances might not be a bad idea but in this case is not a particularly good idea. It is ridiculous that Senator O'Toole or someone else could be prosecuted because some teachers carry out an opinion poll. I beg the Minister of State to with draw the Bill and certainly this particular aspect of it.

Acting Chairman

Does the Minister of State want to add anything?

I have nothing further to add.

Surely the Minister of State cannot reply now.

Acting Chairman

If he wants to add something, he can.

Can we respond to what he says?

Acting Chairman


I have nothing further to add. I have outlined the position.

Amendment put.

Burke, Paddy.Connor, John.Coogan, Fintan.Cosgrave, Liam T.Cregan, Denis (Dino).Doyle, Joe.McDonagh, Jarlath.

Manning, Maurice.Norris, David.O'Dowd, Fergus.O'Meara, Kathleen.O'Toole, Joe.Quinn, Feargal.Ross, Shane.


Bohan, Eddie.Bonner, Enda.Callanan, Peter.Cassidy, Donie.Chambers, Frank.Cox, Margaret.Cregan, JohnFarrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Fitzpatrick, Dermot.Glennon, Jim.

Glynn, Camillus.Kett, Tony.Kiely, Daniel.Kiely, Rory.Lanigan, Mick.Leonard, Ann.Lydon, Don.Moylan, Pat.O'Brien, Francis.Ó Fearghail, Seán.Ó Murchú, Labhrás.Ormonde, Ann.

Tellers: Tá, Senators Quinn and Ross; Níl, Senators Farrell and T. Fitzgerald.
Amendment declared lost.

I propose an amendment to the Order of Business, that the House should suspend until 8.45 p.m.

Is that agreed? Agreed.

Sitting suspended at 8 p.m. and resumed at 8.45 p.m.

I move amendment No. 52:

In page 94, line 38, to delete "referred to in subsection (3)”.

This amendment relates to the section which defines an opinion poll. A number of difficulties arise from the definition of an opinion poll set out in the Bill and these difficulties are serious enough to render the Bill questionable.

The Bill defines an opinion poll as "a systematic inquiry conducted by means of questioning a sample of persons considered to be representative of the population of the State, or any part thereof, for the purpose of ascertaining the likely opinions of the population of the State as a whole, or part thereof, on matters relating to an election or referendum".

During the recent by-election I canvassed for our candidate in Tipperary South. It is my habit, when canvassing, to inquire of the person who answers the door how he or she intends to vote. I introduce myself and ask if the person has made up his mind how he will vote. That is a question. If one canvasses 50 houses it is a systematic inquiry. A canvass can take place outside an election as well, but in the context of this legislation the relevant time period is the week coming up to an election.

I do not consider a canvass that I would do in my own constituency or any other to be complete if I do not ask the person how they intend to vote. I can ascertain by their body language, their answer or their non-answer what their intention is. I may not be as experienced as some Members of this House, but as one who is fairly experienced in this process, I can come back from visiting 50, 70 or 100 houses in an afternoon and have a pretty good idea of what is going on. The definition of opinion poll here raises a question about that kind of inquiry. Like my colleagues, I have from time to time carried out this canvass accompanied by a person with an electoral register or a sheet of paper on a clipboard and a pen.

There will be no more of that.

Only for bingo.

Some political organisations within constituencies would argue that it is not an effective canvass unless they ascertain as closely as possible how that person intends to vote. They go back to their election office with the information and try to work out how many people will vote for Fianna Fáil, Fine Gael, Labour etc. I know people who do that. It is considered the most effective way to gather information about what is happening.

It is possible to do a relative sample either throughout the election or from one year to another. It is possible to ascertain how opinions are going and particularly to establish the mood of the electorate in the last two weeks of an election campaign. If that is not an opinion poll, I do not know what is. It would only be published to a small number of party people and it is used for party reasons. The definition of opinion poll here relates very closely to that activity and that is one of the reasons this legislation is so problematic.

It might not be the intention of the drafters of this legislation to outlaw the activity I have outlined. Senator Walsh might be able to look into his heart and know what the spirit of the legislation is, but not everybody can and Senator Walsh will not be available to everyone who asks the question. The legislation should be without ambiguity, but it is full of ambiguity and, as we saw from the previous amendments, it is full of problems. The definition of opinion poll, accurate as it may be, actually describes other very basic and central political activity, which we all as members of political parties engage in before and during an election campaign and certainly during the last week of a campaign.

If I am being told that activity is now within the confines of a ban, we have a problem. It is time to accept that we have a difficulty here, withdraw the legislation and go back to the drawing board. Of course, I am pretty sure that will not happen.

Among the comments made in the past week in favour of the general ban is the belief, particularly among those in political parties and especially the largest party in the State, that the publication of an opinion poll in the last week of an election actually influences or may influence the outcome and therefore we should not have one. We should create a space in which the electorate can reflect without the influence of an opinion poll and make its decision based on issues and other factors. What evidence do we have, except our own impression, that an opinion poll is influential?

An Cathaoirleach: Senator O'Meara is now making points which would be more relevant later in the debate when we come to the question that the Bill be received for final consideration. At this stage we are discussing her amendment No. 52 which, she stated, refers to the definition of opinion polls and not to the effects opinion polls might have.

I accept your ruling on that and I will save my point for later in the debate. I have made my point adequately on the definition of opinion polls. I suspect that other Members, particularly on this side of the House, will probably have other examples of where this definition can be applied not only to the taking of an opinion poll but to activities which we would consider to be normal political activity and which, in my opinion, it was never the intention of the legislation to curtail or ban.

I second the amendment. There is an issue here about the way we do our business and I will come back to it again. Perhaps it might be easier to come back to it knowing that people recognise that tomorrow's newspapers are written and programmes are put to bed for tonight; therefore people cannot deliberately misinterpret the reasons for opposition.

There is a way in which we do our business here. The reputation of this House is dependent on people working to a set of beliefs, principles and philosophies. These may differ from each other but are nonetheless valid and we are required to articulate them as strongly and firmly as we can.

The points made by Senator O'Meara are absolutely correct. An opinion poll is not what people might think it is, would like it to be or what it might be interpreted as in the future; it is as defined in the words from line 34 down to the end of that subsection.

This amendment is closely related to my amendment No. 60 and I would have been happy to deal with both of them together. The work of party activists, functionaries, canvassers or workers is effectively the polling of the opinion of people. I was quite astonished by an earlier response from the Minister. I know him well enough and long enough to know that he would not deliberately mislead the House, but I am sure his view in answer to an earlier question that this related to polling organisations was not meant to be an exclusive position. There is no mention anywhere of this being confined purely to polling organisations. If it were, it would take many of the problems out of the Bill.

These are problems like the one I raised earlier about schools and the problems raised now by Senator O'Meara. It is not just the publication that is wrong, but also the taking of the information. That is why this amendment is important. The proposal is that we take away the words referred to in subsection (3), which refers to an election or a referendum and they are defined earlier in the section.

During a canvass people ask questions at each of the doors they call to. One person does Auburn Drive; the next does Auburn Walk; the next does Auburn Crescent. They all come back to meet their canvass organiser at the end of the evening and they have now broken the law. I am not saying that might arise, or that anyone will take action against them. That is what brings the legislation into disrepute. As long as those words are included, and reference is made to people working in these situations, a difficulty will arise down the line.

We cannot work on the basis that people may be breaking the law, but that it is okay because it was never intended that the law would apply to them in such situations and that no action would be taken. One cannot operate on that basis as the legislation would be brought into disrepute. On that basis all we would need to do is publish legislation, say what we intend by it, and get rid of lawyers. That might have many attractions, but things do not work that way. Lawyers point to the words used and argue as to what they mean and whether what a person did was wrong.

I appeal to the Minister to consider what we are doing. We are walking into a morass and bringing the legislative process into disrepute. This is not good legislation and will not work. I ask the Minister to park it and revisit it in the autumn so we can see what needs to be done to meet the specific needs of people.

I support the arguments put forward by Senators O'Toole and O'Meara regarding the clarity of the legislation. Legislation must be unequivocal: there should never be a question mark about the intention behind it or about the spirit of the intention. If it is clearly defined it will be clearly understood.

Senator O'Meara spoke about polling, a process we all undertake to find out where our strengths and weaknesses lie. Recently I was in Great Britain for a personal reason and while there I noted they have a peculiar system, namely, if somebody is voting for Labour in a household, they put a small plaque in their garden indicating that, ensuring people know where they stand. I was in the greater Manchester area and the large farmers had plaques with "Conservative". If that process was introduced here, candidates who counted the plaques would be polling. That is how farcical this can become. There is a need for either clarity in description or removal of the section and a new start made.

This amendment seeks to delete the cross reference in the definition of opinion poll in subsection (3). This is a drafting matter and I cannot accept the amendment.

I accept it is a matter of drafting, but I have no intention of withdrawing the amendment.

Question put: "That the words proposed to be deleted stand."

Bohan, Eddie.Bonner, Enda.Callanan, Peter.Cassidy, Donie.Chambers, Frank.Cox, Margaret.Cregan, JohnFarrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Glennon, Jim.Glynn, Camillus.

Kett, Tony.Kiely, Daniel.Kiely, Rory.Lanigan, Mick.Leonard, Ann.Lydon, Don.Moylan, Pat.O'Brien, Francis.Ó Fearghail, Seán.Ó Murchú, Labhrás.Ormonde, Ann.Walsh, Jim.


Burke, Paddy.Connor, John.Coogan, Fintan.Cosgrave, Liam T.Doyle, Joe.Jackman, Mary.McDonagh, Jarlath.Manning, Maurice.

Norris, David.O'Dowd, Fergus.O'Meara, Kathleen.O'Toole, Joe.Quinn, Feargal.Ross, Shane.Taylor-Quinn, Madeleine.

Tellers: Tá, Senators Farrell and T. Fitzgerald; Níl, Senators O'Meara and Ross.
Question declared carried.
Amendment declared lost.

Amendment No. 53 is a substitute amendment for amendments Nos. 53 and 54 on the white list. Amendments Nos. 65 and 66 are related to amendment No. 53 and may be taken together by agreement. If amendment No. 53 is defeated, then amendments Nos. 55 to 66, inclusive, cannot be moved.

I move amendment No. 53:

In page 94 to delete lines 47 to 51 and in page 95 to delete lines 1 to 39.

In light of the Cathaoirleach's remarks on the effect that a defeat of amendment No. 53 would have on the amendments up to No. 66 inclusive, I withdraw the amendment.

The amendment is not seconded.

Amendment, by leave, withdrawn.
Amendment No. 54 not moved.

Amendment No. 55 is related to amendment No. 58 and they may be taken together by agreement.

I move amendment No. 55:

In page 95, line 6, to delete "preceding" and substitute "following".

The intent of this amendment is, unapologetically, to negate the purpose of the section. It seeks to delete the word "preceding" and substitute the word "following". If one were to do that, one would forbid opinion polls being taken after the event, which seems to be a perfectly sensible proposal to suggest.

Will the Senator explain it?

It would be difficult to explain it in more simple terms. The reason is obvious. The Bill states there should be no polls taken for seven days beforehand. Will the Minister of State indicate where that will leave us on polling day? I ask him to answer the question of whether newspapers or anyone else will be able to publish one minute after midnight on the night before polling day or later on polling day the results of a poll taken eight days beforehand or one taken that night. In other words, will it be possible for a scientific poll to be taken just after midnight on the night before polling and the results published in the newspapers that day? It is a sensible question. It is not beyond the practical bounds of possibility for a newspaper, the media or anyone with a good organisation to publish the result of such an exercise.

What I am envisaging is that eight days beforehand a poll could be taken on a scientific basis with the express purpose of the results being read out on the news at midnight on the night before polling day or taken one or two hours after midnight on the night before polling day and the results read on the news at 8 a.m. on polling day. That would have a bigger influence than the results of any poll taken just beforehand because it would inform the people about the state of opinion as they go to the polls. One could carry out polls throughout polling day and give a running commentary on the state of the polls, or one could carry out polls, as they do in the United State which seems to be fairly ridiculous, giving the results which are published before a large number have voted on the day.

The Minister of State can correct me if I am wrong, but I understand the references in the Bill to timing are all to do with the preceding seven days. What is to stop a polling organisation breaching this by taking a much more up-to-date poll and publishing the results of an eight day old poll? What will happen to it if it publishes a poll taken in the seven forbidden days before polling day? That is the reason I tabled this amendment and I would be interested to hear the Minister of State's answer in detail.

I second the amendment and appeal to my colleagues opposite to understand that this is not a game. As I said when I last spoke, the media are all gone home to bed until tomorrow morning. There is, therefore, nobody here trying to make an impact on them. There are serious points at issue. We are making idiots of ourselves with this legislation. We are putting through legislation that is inoperable, unworkable and based on a false premise. A series of amendments show specifically that under this legislation it could be determined that pupils in their civics classes could be at variance with it or that canvasses at election time, putting together opinions at the end of a night's canvassing which is practical work, could be in breach of it. This legislation is not only aimed at polling organisations, which would make some sense. There is also the point made by Senator Ross.

Those of us who have been opposed to this legislation have said that the way to approach this matter is to have a voluntary code between political parties and media outlets to ensure there would be a moratorium on this type of reportage for a period of three days, the day of the election and for two days prior to it. People would be supportive of such an approach. Instead we have this nonsense. We will have entry polls, exit polls and polls taken on the day. Every possible use will be made to subvert the legislation. We will find ourselves in a situation where the last position will be worse than the first.

We are trying to convince the people that this is bad legislation. It is badly drafted. It does not discharge the purposes or the objectives for which it was intended. It makes a laughing stock of all of us. As to the idea we have heard across the floor three or four times that this is not what the Bill is meant to do, while that may be the case, if words are written, they mean what they mean. This is not Alice in Wonderland time where we can say they do not mean this or they were not intended to do this, that or the other. It is our business to pass legislation that is accurate and not open to all sorts of varying interpretations and which can be implemented.

This is a disastrous section. In dealing with this legislation, we are not getting respect in terms of getting answers to our questions and a clear understanding of where we are at. Senator Ross asked the Minister of State to state that this legislation does not exclude opinion polling on election day. It does not forbid, criminalise or outlaw it from midnight on the day before polling day. I want that on the record to enable the people to realise that what we could finish up with would be a position where the last one could be worse than the first. Any of us here can envisage what will happen. Eight days before the election an opinion poll will be taken and the results not published. On the morning of the election another poll will be taken. The headlines on polling day will be that this is what has happened in the past week. We will finish up with the last position being worse than the first.

I am failing to make any impact on the Minister of State. Someone somewhere should talk to somebody. I want to give the Minister of State an opinion poll. In the course of this afternoon I spoke to four people who have no involvement in politics. They are ordinary people who go about their day's work. All four unsolicitedly asked me what was my position on this legislation. They were appalled that we should allow it to go through. I am not giving the Minister of State that information for any reason. It may mean nothing other than they are the type of people to whom I speak all the time.

This is poor legislation which undermines the work we do. The amendment tabled by Senator Ross highlights once again the type of nonsense into which we are moving. We are walking into a morass where our last position will be worse than our first. This legislation does not do what it sets out to do. It leaves us worse off than we were before and creates all sorts of anomalies.

It is fundamentally the reflection of a rushed piece of work and we are paying the price here. It has not been discussed, parsed and analysed in any other place except here in the course of the afternoon. I would welcome hearing the views of our Fianna Fáil colleagues on this I do not want to hear views about the reasons we are doing this. I ask them to ignore our motivations or think they are the worst, but to deal and engage with the issues we raised which are serious. I would have been out of here two hours ago if I thought there was a serious understanding of our position on the far side of the House, but I will not move from here as long as people take the negative view that they cannot see the problems with this legislation. The Minister's party workers will suffer as much as anybody else.

This seems to be an extremely interesting amendment. I do not imagine Senator Ross wishes to be helpful to the Government in its campaign. If the Government was serious about the principal intent of this Bill, then he has certainly unearthed something which seems to frustrate that intent. If it is serious one would anticipate that it would accept this amendment because it helps the Bill achieve what it sets out to do. If it is to accept any amendment at all, or if it is serious about anything other than a media bashing exercise, then this is obviously an item it will have to take on board. If there is a way around this, which I do not think there is, I will be very interested in hearing the Minister's suggestion.

One of the reasons I am in favour of opinion polls is that sometimes they isolate questions which are of concern to the electorate, but which political parties have decided to neglect. This is one method of concentrating the mind of even an unwilling Government or Opposition on those matters. I will find it difficult to understand if the Government reject this amendment.

The question regarding timing, such as one minute after midnight, is interesting. It is possible that opinion polls affect voter's intentions. There is the bandwagon effect, and, on the other hand, there are people wishing to jump off a sinking ship. One can see this by watching the coverage of American elections. Because of the time zones, exit polls in one time zone are announced while people are still voting in another. It has always seemed to me that this effect tended to even itself out. The people are entitled to the fullest possible information.

I support this amendment, and look forward to its being put to a vote. I remind my colleagues that voting is part of the democratic exercise. I hope we have about 16 further votes this evening, principally because I have missed attending the theatre.

This is better than theatre.

I support what has been said. I do not know if the Minister and his advisers understand that we are banning the taking and publishing of opinion polls for seven days preceding the election, but that does not include the day of the election. The date of the poll commences at one minute past midnight and there will be seven hours before polling booths open.

As has been pointed out, material for an opinion poll can be collected or put together up to seven days beforehand and can be published. It will still be early enough to make the morning newspapers. This information can be used in all the media – written, spoken and visual – on the day of the poll. The biggest news impact comes from early morning radio and the morning newspapers. That could influence people. A colleague has said that some people will want to jump on a ship that is sailing fair, while others will want to jump off a ship they think is sinking. For that reason the Minister will have to explain how he will get around this problem. It makes a joke of so many things in this Bill and particularly in relation to definitions which I was last speaking about.

I make these points to the Minister and his advisers only to be helpful. The whole idea of banning opinion polls was to ensure that they would not have an influence on voter opinion for a clear period before an election. If they are published on the day of the poll, they could have a very clear impact because they had been prohibited for the previous seven days. I am often dubious about the influence of such polls, but if they are to have influence, they will certainly have influence if this is allowed to happen.

The debate on this amendment has thrown up an interesting point. It is hard to see that there is not some validity in it as regards having an opinion poll published on polling day. If it is not permitted to gather the information in the seven days before the poll, it would presumably affect the validity of the poll. To be consistent, however, publication should be prohibited. In saying that I would not go as far as to suggest that the gathering of opinion on the day of an election should ever be prohibited. The exit polls which this legislation allows, but which may be overtaken by electronic voting, is a quite useful facility for people and the media. It has often turned out to be quite accurate.

The amendment before us does not deal with that issue. All the amendment does is to put forward the deletion of the word "preceding" the day of election and inserts "following" the day of the election. This negates the whole purpose of the legislation—

On a point of order, we are discussing amendment No. 58.

I am discussing No. 55 which I think I am entitled to do.

We are discussing amendments Nos. 55 and 58.

That is on polling day.

I want to deal with the amendment on which I have been speaking, No. 55.

We are discussing both amendments.

I am speaking specifically on deleting "preceding" and substituting "following", which is the substance of amendment No. 55. That negates the purpose of the Bill—

That is its purpose.

—and I accept that is the intention. Banning exit polls would be wrong and is something we should not countenance.

When I was a child, we went off chocolate and sweets for Lent. We were allowed to finish our pledge at midday on Easter Saturday and we hoarded our sweets waiting for that moment. We looked forward to it no end, because we had not had sweets for six weeks. We waited for the Angelus on Easter Saturday and then gorged ourselves with sweets and chocolates. This is a bit like chocolate legislation. It is a bit like saying, "Chocolate is not good for you, so it will be banned".

What will happen? Every television and radio station will advertise for their audiences to tune in at midnight on the eve of election day, only hours before voting begins, and will tell them what is happening. The country will wait for the news because it has been deprived. People are currently interested in opinion polls, but on that day they will be on the edge of their seats waiting for the findings. This is bad legislation, it says people will be informed at midnight on polling day and not one minute past it. Each newspaper will advertise that people should read it before they vote because the opinion polls it will have conducted seven days earlier will tell them what is happening. People will be on edge waiting for them. If not this way, the media will find some other way of circumventing the provision.

This is bad legislation and I do not want the House associated with it. None of us wants the Oireachtas associated with it. However, the other House will not be blamed for it because it did not have a chance to have a say in it. If there are flaws in the Bill, and it is flawed, no one can blame Members of the other House because they did not have a chance to do anything about it. We will be blamed for introducing flawed legislation.

I am saddened we are not listened to when we make points, such as those about children not being able to conduct an opinion poll in their school during a general election, and by the fact that opinion polls can be launched on the public, hours before they go to vote. If the Government believes, and other parties have a sense, that there are flaws in publishing opinion polls, perhaps we should opt for what is done in Germany where there is a voluntary code of practice in the media whereby the larger papers agree not to publish opinion polls and few of the smaller newspapers breach it. This is the type of provision which should be voluntarily rather than statutorily applied.

The Government is wrong and, as Senator Ross pointed out, it is bad legislation. I urge the Minister of State to respond to the deep concerns expressed by everyone on this side of the House. Senator Walsh also expressed deep concern about the flawed Bill. I hope the Minister of State considers withdrawing it.

The debate has been interesting.

Now it is becoming more interesting.

It has become more interesting as it has continued. It is possible to identify certain elements of the Bill and interpret them in what ever way one wants. I suppose that is what is involved in debating legislation.

I have certain reservations and comments to make about opinion polls. I fought an election in 1987 when Senator O'Meara's then party leader was elected by just four votes. If an opinion poll had been published the day before suggesting one candidate led another by 20%, it would have been grossly unfair because people might have thought that if one candidate was so far ahead, there was no point in voting for the other, although they wanted to. An opinion poll could have suggested one candidate was far ahead which might have made people unwilling to vote for the other candidate. The result was neck and neck. Who would have been responsible in that situation?

I have many reservations about opinion polls, although I have been involved in a number in recent months.

Senator Kiely, we are discussing amendments Nos. 55 and 58.

I am getting to them.

We are not having a general discussion on opinion polls.

I do not understand the argument of the Opposition which states that an opinion poll cannot be published until one minute past midnight on polling day.

The legislation states that an opinion poll cannot be published in the seven days preceding polling day.

How can one publish an opinion poll that is seven days old?

TG4 did it in south Tipperary.

One might as well publish opinion polls taken 12 months before. If the opinion poll to be published is to be seven days old, one might as well publish one that was taken two months ago.

The poll in south Tipperary was ten days old.

It is exactly the same.

We must have an orderly debate. Senator Kiely is in possession and I ask him to confine his comments to the two amendments being discussed, namely, amendments Nos. 55 and 58.

Unless I read it wrongly, I am speaking to amendment No. 58 which states: ‘to delete "on any of the 7 days mentioned in subsection (3)” and substitute “on polling day“'. The Opposition has referred to the famous one minute after midnight on polling day. If any of the media print opinion polls on polling day, it will not give the public a true reflection, or is my reading of this incorrect?

Am I completely confused about what members of the Opposition are trying to say to me? I cannot grasp their point. If an opinion poll taken seven or 14 days earlier is published a minute after midnight on polling day, what relevance does it have? It is not an accurate poll and is unfair. It gives the opinions of seven or 14 days previously, which is unfair and unjust.

The Bill allows it.

I cannot see anyone conducting an opinion poll one minute after midnight no matter how good the modern technology. Remarks were made about exit polls in the United States but there are time differences in that country, something we do not have in Ireland – when it is midnight in Dublin, it is midnight in Kerry.

In fairness to the media, there has been an understanding that they do not mention or discuss an election 24 hours prior to polling day.

They will now.

This has been the understanding for a long time. I do not accept that they will deviate from the manner in which they have conducted their affairs until now. That is my opinion and I am entitled to express it in the same way other Members expressed opposing views. What is to be gained from publishing an opinion poll? Where is the spirit of democracy?

More sales. More newspapers will be sold.

The Senator has a vested interest. I do not have a vested interest in this in terms of selling papers or television or radio advertisements. As Senator Quinn will know more than anyone else because, like all advertisers, he tries to get the best value for money, 70% of the penetration in advertising is through television, and 90% of television is public broadcasting. I do not see RTÉ abusing or misusing its privilege in the national interest.

What about newspapers on the Internet?

RTE can be trusted and I will trust it. I have no difficulty doing that. Only a percentage of people have access to the Internet.

The number is growing.

Yes, but every voter does not have access to it. I would question the sincerity of the media which, in fairness, have an understanding that this does not happen 24 hours prior to elections. It would be most unfortunate, to say the least, if this were to happen. It would be shameful. I do not see this happening given the many editors and producers who have the good of the country at heart. What use is information which is eight days old? Given our experience as legislators, we know that stories which are 24 hours old are not used. If one goes to the media with a story which is 24 hours old it is considered to be "old hat".

If you made it into a story—

If one does not wish to tell the truth of the news one could make it into a story. I am not in that business, even though I was communications spokesperson for the Fianna Fáil Party for 11 years. If we are talking about people who are not interested in printing or broadcasting the truth of the news that is a different discussion which will have to be addressed.

Why is it not the truth?

I ask the Cathaoirleach for his protection because some unruly Senators are getting more unruly as the evening progresses. I gave them a break for a meal earlier which I thought would bring back a little sanity to the debate.

The Government in its wisdom proposes a ban on polls for seven days prior to elections. As Senator Ross has highlighted an issue which could cause major difficulty in regard to the legislation, perhaps we should consider the issue overnight. Perhaps we could get the considered view of the Minister of State regarding the proposal before us. We are all here in the interests of passing the best, most accurate and most workable legislation possible and Members on this side of the House wish to be part of that plan. This side of the House will have no objection if the Minister of State and his officials wish to consider overnight the proposed amendment.

That took a while.


Order, please. I call Senator Ormonde on amendments Nos. 55 and 58.

Having listened to the debate at length I am concerned that a poll could be introduced. I agree with the Leader of the House, Senator Cassidy, that should there be a doubt in this regard perhaps the matter should be considered again. Given what he has said, I believe there should be a moratorium. The media has always honoured that understanding. Regardless of the legislation, I hope that no one would comment for the last two or three days prior to an election. It would be very low-minded of the media if they produced a poll the morning of polling day.

It is possible.

It would reflect this country and the media in a very bad light if they behave in such a manner. We are all aware the influence polls can have, which has been debated here for the past hour. I welcome the fact that Senator Cassidy is prepared to review the matter if that is acceptable.

I am pleased the Government side has seen the light in this regard, even though there was a great deal of toing and froing, note-passing and people running in and out before a conclusion was reached. I thought the actual debate would have resulted in common sense on the issue, plus the fact that we said earlier that any Bill which goes through should be unambiguous and clear in its content. This amendment is seeking clarity on the issue because a "freeby" newspaper, for example, with a particular agenda might decide to publish something at 12 o'clock the night before an election. At long last there is some movement on the opposite side. It has been a long day and if we had this type of reception earlier I am sure the debate would be over long ago.

I too welcome what appears to be some light at the end of the tunnel. I suspect the Government side is anxious to come back with a way of closing a loophole which has been identified on this side of the House. Given that the Leader of the House recognises this section is full of holes, I want to point out another few holes in regard to his comments.

First, he made the case for a voluntary code of practice. He spoke about the moratorium RTE operates in the 24 hours preceding polling day. For the information of the Leader of the House, that is not just a voluntary moratorium but it is very much predicated on news values. In other words, if a story breaks in the print media, that moratorium is subject to the reporting of that story which could be related to an opinion poll.

Second, even if an opinion poll was taken seven or eight days preceding election day, the fact that it has not been published and that no one else has the material makes it not just a valid news story but a big news story, one which would be trumpeted, advertised and promoted. People would be told, "Listen to the news bulletins, we have news for you".

Third, while our native news media might engage in a voluntary code of practice, there is absolutely no reason to believe that news organisations based in Great Britain would take that view. They would look on this as an opportunity. Sky News, for instance, considers Ireland a very important part of its target audience. It has advertising which is targeted specifically at its Irish audience.

This aspect dealing with opinion polls is so flawed and so full of holes that it is simply bad legislation. I am pleased there is some dawning of the light on the opposite side, even though I suspect the overnight consideration which is being sought is simply an attempt to close the gap which has been identified.

Am I correct that if we adjourn now the Minister of State will respond in the morning?

That is correct.

That would give people a chance to consider the issue overnight.

I propose that we suspend further deliberations on this Bill until 2 p.m. tomorrow and that we now deal with the Second Stage of the Local Government Bill.

I do not agree. We should have the Minister's considered reply first so that we can consider that overnight. Let us see what the Government position is and then we can adjourn.

Hear, hear.

We have a proposal from the Leader of the House.

Will the Leader agree to the Minister's speaking first?

The Minister can speak at any time.

I understand that the Minister needs to consider this overnight and he will give his considered view at 2 p.m. tomorrow.

There is a proposal to the House that consideration of amendments Nos. 55 and 58 be deferred until 2 p.m. tomorrow. We are adjourning debate on all of the Bill and we will resume tomorrow at 2 p.m. on amendments Nos. 55 and 58. The Minister will give his reply and Senator Ross will then have his right of reply. Is that agreed? Agreed.

Debate adjourned.