Electoral (Amendment) Bill, 2000 [ Seanad Bill amended by the Dáil ] : Report Stage (Resumed) and Final Stage.

I welcome the Minister for Defence, Deputy Smith. A supplementary Order Paper has been circulated. In accordance with Standing Order 111, I call on the Leader of the House to move the motion.

I move: "That the Electoral (Amendment) Bill, 2000, be recommitted in respect of section 59."

Is the motion agreed?

Will the Cathaoirleach explain to the House what happens if the section is recommitted?

It will go to Committee Stage.

Will it be reopened immediately for discussion?

There will be a full discussion on it and the House will make its decision at the end of that.

The Leader has proposed that the section be recommitted. Does that mean the Government does not propose to recommit the entire Bill? There are other elements of the Bill that are constitutionally questionable.

The motion proposed by the Leader is that section 59 of the Electoral (Amendment) Bill, 2000, be recommitted. That is the only motion before the House.

I support that motion, but it is limited. The Government should extend it in a broader motion. I propose that we recommit the entire Bill, particularly as it has been shown, at least on this major element, that it is fundamentally flawed.

We must deal with the motion before the House.

Can we consider this motion and then put forward another motion to recommit the entire Bill?

Question put and agreed to.

I move: "That the Electoral (Amendment) Bill, 2000, be recommitted."

As the motion is opposed, Senator Costello may, under Standing Order 112, make an explanatory statement to the House.

In the course of our discussion of the Bill on Report Stage, there were motions on the Order Paper to recommit the entire Bill. The reason for that was that the Bill should be dealt with as a Dáil Bill, as that House has amended it. Senator O'Toole produced two Bills here yesterday, a Seanad one and a Dáil one. The Seanad Bill was previously before this House and the Dáil Bill is now before the House. The Bill has been amended in other areas, not just this one. We have raised major questions about the framing of this legislation. We spoke of how flawed the legislation was and how we had not been given the Attorney General's advice on the Bill. There are other constitutional matters regarding regulations being made by the Minister. There are further constitutional matters about someone aged 20 being elected to Dáil Éireann. That is unconstitutional but it can happen under this legislation.

The entire thrust of the Bill is a naked grab for power by the Government. It is proposing that corporate donations—

The motion the Senator has proposed is a purely technical motion. I ask him to confine himself to the technical aspects of the motion and not to become involved in the subject matter of the Bill which can be debated in another way.

I have outlined the technical aspects of it, that the entire Bill be recommitted on the basis that it needs a thorough examination. Fundamental issues have been raised which have not been properly teased out in either House. The Bill was guillotined in the other House. The motion seeks to recommit the entire Bill.

I made three of four contributions yesterday on the many motions that were brought before the House. In the Dáil, the Minister of State at the Department of the Environment and Local Government, Deputy Molloy, asked Deputies Olivia Mitchell and Gilmore if they had the full support on this issue of the Fine Gael and Labour parties respectively, and the Minister was assured that they had. It now appears that they do not have this support. Yesterday I highlighted one part of the contribution of Deputy Olivia Mitchell which at one stage proposed that there be a 14 day ban on the collecting and publication of opinion polls before an election day. It was then reduced to seven days. That all-party consensus does not appear to exist now. That was very evident in what Senators Coogan, Manning and Costello had to say yesterday in the House.

Question put and declared lost.
Question proposed: "That section 59 stand part of the Bill."

The amendment relating to section 59 was tabled and passed in the Dáil in response to a Committee Stage amendment from the Fine Gael spokesperson and was supported by the Labour party spokesperson. The amendment concerned the taking and publishing of opinion polls within seven days of polling day. The text of the Fine Gael Committee Stage amendment was that no public opinion polls shall be taken or published in the seven day period prior to any election or referendum and no opinion poll whatsoever shall be published in the seven day period prior to any election or referendum. The Minister of State, Deputy Molloy, having established the support of the main Opposition parties to the amendment, said he would accept it in principle subject to the parliamentary counsel examining the text of the amendment.

The Government considered the matter today and, having regard to the change of attitude on the part of Fine Gael and the Labour Party to section 59, which they originally supported, has decided not to proceed with the measure. The Government proceeded initially on the basis of all-party support for the prohibition. As this is no longer forthcoming, an amendment will be proposed to delete section 59.

This is the type of measure the Government will only feel comfortable with if there is all-party consensus, and that is clearly not the case. The facts of the matter still stand and perhaps if that consensus were to re-emerge, the measure could be re-examined. We will not have it said on a sensitive matter such as this that we imposed our will without having the agreed position, consensus and support of other parties.

On a point of clarification, no formal amendment is required. The House can take a decision on the section when the question "That section 59 stand part of the Bill" is put.

I wish to correct the Minister and ask him how he came by such information because he obviously has not listened to what we have said on this side of the House. What Senator Manning and I said yesterday and have continued to say about the Bill is that the Attorney General's advice should be made public. We have asked that the Bill be debated fully. It was guillotined in the other House and an attempt was made to rush it through the Seanad. We thought it had not received the attention it deserved. Only for the fact that Senator Ross spotted another flaw in the Bill, we would not be here today and the legislation would have been bullied through again.

This is the reality. The Bill is flawed. The evidence we needed was produced by a Member of the House in the short time we had to examine the Bill. It should have been examined in detail. If there is one flaw, are there others? We would not be here today if, yesterday morning, I had not asked that the Bill be recommitted for further examination and that the Attorney General's advice be produced and given to us.

To say we have done an about-face is incorrect. The Minister should show me the evidence because the record of the House does not show it. The Government is trying to get off the hook because it produced a flawed Bill. It should not try to put the blame on others. Instead, it should thank the Chamber for the fact that it was capable of examining a Bill and finding it flawed.

I congratulate the Minister for coming to the House with his news. I agree with what he is doing. I find the reasons strange because we obviously have a new principle for governing the country, namely, government by consensus. I have never noticed the Government taking too much notice of the Opposition when introducing legislation or consulting it on any matter. The last time that happened was during the Tallaght strategy and that was a long time ago.

The Senator is suffering from a loss of memory. That is not true.

He is being very selective in what he recalls.

Was it before he joined Fine Gael or afterwards?

We must have an orderly debate. Senator Ross must be allowed to make his contribution without interruption.

I sympathise with Members on the Government side. I understand why they are slightly tetchy. We must be honest about this. The Bill was introduced because the Government thought it would be easy to pass it with the consent of the Opposition. It was introduced as a knee-jerk reaction to the Tipperary by-election where both major parties believed opinion polls worked against them. The Government felt this was an ideal opportunity to suppress information from the electorate with the support of the Opposition. The Minister is right in one thing he said, which is that it is harder to keep information from the electorate if one does not have the support of the Opposition. Perhaps that is an issue on which he should consult other democratically elected representatives.

This is an appalling Bill and among the most diabolical, patronising and insulting legislation I have seen in many years in this House. On top of that, when the Government and the Opposition realised public opinion was running so strongly against them, they looked for a way out and they got it last night, not through any great skill on the Independent benches but because the Bill was passed by the other House in such a hurry that no one there had time to consider or examine it. It was drafted in such a hurry that it was flawed not just in its conception but in its detail.

It would have been absurd if this Bill had been passed in its current form because it would have been negated on polling day. The Minister knows that and the Government had three options this morning. It had the option it has taken, which is to drop the measure, which is humiliating for any Government. I am glad it has taken that option. It had the option of ramming it through the House with its numbers, its original intention, which would have meant opinion polls would be published in every newspaper and broadcast on every radio station on polling day, and that would have made the Government look utterly ridiculous. It also had the option of amending the Bill. It could have amended it in terms of forbidding polls on polling day as well, but then it would have faced political problems in the other House when it returned in October.

We must be realistic. The Government has taken the short-term, sensible political decision because of a great embarrassment to it, but I congratulate it on doing this because the original measure was close to a form of censorship and tyranny. If it had been accepted, we would not have known what was coming next and what other information would have been banned during general elections.

The jury is still out on the principle that opinion polls affect people's judgment. No one will ever be able to prove that. They probably make some difference to people, but there are other matters which make a great deal more difference to people's judgments in elections, such as election promises by both parties which are more honoured in the breach. Are they to be banned as well or are they to be allowed? Are people to be asked to vote on the puff and not the facts? Real and solid information would have been withheld because it was embarrassing to politicians and lies and fantasies would have been fed to the people because it suited politicians. This was a dangerous Bill and I congratulate the Government on withdrawing this aspect of it.

I welcome the Government's U-turn on this highly controversial section which will soon no longer be part of the legislation. We in the Seanad have shown the value of the House in the work we have done. We have done excellent work this week. I am glad the Government has listened to the points made on this side of the House.

The failure of this section has nothing to do with the failure of a consensus on the matter but with the fact that the measure has shown itself not only to be highly unpopular and controversial but also fundamentally flawed and wrong. When it clearly emerged after many hours of debate yesterday that there were serious flaws in this element of the legislation, it finally dawned on the Government that it needed to do something about it. In doing that, it was presented with a problem. Last night, when it was indicated to us that further advice would be forthcoming on section 59, especially concerning the loophole identified by Senator Ross regarding polling on election day, I said it was my suspicion that the Government would put forward some measure to close that loophole because, if it did not, the obvious next step would be that the Bill would have to go back to the other House for further consideration. The implications of that are such that the Government would prefer to drop the measure rather than reopen a debate in the Dáil or delay the implementation of the Bill.

We must not forget the remainder of the legislation. What is contained in the Act—

I would remind Senator O'Meara that the debate is on section 59 of the Bill. Only section 59 has been recommitted.

The reason section 59 and the amendment have been dropped is to ensure the other aspects of the Bill such as corporate donations and election spending are not jettisoned or threatened in any way. We should be absolutely clear that this is the justification and reasoning behind the dropping of section 59. Even though that is a welcome, we should not forget the remainder of the legislation which will be put on the Statute Book today.

I must declare a couple of interests. I am a director of Independent Newspapers and I write in the newspapers about elections and so on. I do not believe it makes the smallest difference to the outcome of elections, nor do I aspire to do so. I voted against this measure yesterday on a technical point. I believed the section, which was inserted at a late stage, should have been more fully discussed. Amendments are amendments to what has been before us before and not something fundamentally new which has been brought in. I thought of describing it as the "quare bungle rye amendment, smuggled up in a basket and sold on the sly". What was in the basket was the product of an illegitimate union. However, there is much to be said for the substance of the measure. I congratulate the Minister and I do not impute motives to him or to the Government for the action taken. I am pleased they have taken such action which is entirely sensible.

I do not speak for anyone in the newspaper industry nor have I discussed the issue with anyone. When the issue is being remitted for further consideration, the Minister might consider talking to the newspaper industry. He might find it possible to get some degree of consensus because this is a subject on which there is a fair amount of debate. Like other Senators, I have seen no evidence that links opinion polls with specific outcomes of elections. There is certainly more than anecdotal evidence to link them with apathy and low turnout but it would be helpful if the Minister spoke to people about the issue. He might find it easier to reach a consensus in that way. The Minister might also consider the practicalities of the situation as presented and how the modern media work. I could just as easily write my articles in theBelfast Telegraph. I could have the editor of the Belfast Telegraph run polls and I could write them every day. Colleagues in UTV could do likewise, plus there is the Internet.

As well as the issue of substance, there are very important practical issues which could now be dealt with. I am pleased that time has been allowed for further discussion on the matter when feelings might not run so high. A lot of silly things have been said on both sides. I was of the view that it was a case of using a sledgehammer to crack a nut and I am pleased we are finished with the matter for the moment. I thank the Minister and congratulate him on the action taken.

The point made from this side of the House and rejected vigorously from the Government benches has now been clearly justified. It was a First Amendment issue. It was a question of freedom of speech, therefore, it was very important that it was debated.

I congratulate Senator Ross on his quite extraordinary triumph from the backbenches of the Seanad. It appears that nothing could better display the relevance, importance and significance of this Chamber in Irish political life than the fact that without this Chamber this eventuality would not have occurred. I would also like to say – this is probably slightly gloating – that without the contribution of the Independent Senators the same thing would be true. If anyone wanted a demonstration of the value of this House, or the value of the Independent representation within it, what occurred here last night is the classic justification for it.

While travelling back on the plane from abroad I was reading headlines and editorials on the issue. There was a lot of exercising of minds and passion from the newspapers. Having done the newspapers and the Irish public such a favour, it behoves those same newspapers to acknowledge this with the same vigour with which they pursued the issue in a situation where it appeared nothing whatever could be done. Many of those newspapers decry the Seanad, question its relevance and call for its abolition. I hope those calls will now be muted in light of the service done by this House. Perhaps in articles, after due consideration, they will look through the debate in this House which surrounded Senator Ross's amendment, consider the arguments made and do justice to the work engaged in here yesterday.

The Government's performance yesterday was pretty poor. It did not appear to be in command of the situation. This is not entirely surprising and it was manifest by what was said both by the Leader of the House and others. They openly acknowledged that this was a fumbled ball and something they picked up from Fine Gael and Labour. I understand such an amendment was previously discussed in Cabinet and the Government decided against it. When the amendment was tabled by Deputy Olivia Mitchell they thought all their Christmases had come at once and they decided to run with it. They checked with Fine Gael and the Labour Party and were told that everything was all right. That suggests a complete lack of intellectual rigour. They did not examine the amendment in detail before happily presenting it to this House. What Senator Ross has done, with the assistance of colleagues on the backbenches, is to demonstrate that one cannot because of the presence of this House get away with that kind of intellectual laziness. I hope we will not see this happen again because it is not a very pretty sight.

The measure was pushed through the Dáil without debate in the teeth of advice given by present and past Attorneys General, leading legal opinion and luminaries. The advice was all brushed aside and this anti-democratic push would have succeeded except for the work we did here last night. This is a very important day for the Seanad and for democracy. I hope what was done here last night and today will be fully reported and that this Upper Chamber will get the due credit it deserves. I again congratulate my colleague, Senator Ross. I am very pleased he afforded me the privilege of giving him my vigorous support in this matter last night. It was worth missing the first night of the Gate Theatre.

As Senator Coogan said, we consistently sought the advice of the Attorney General on this matter but it was not made available to us. In fact, it was denied us. I presume that the Attorney General advised the Government appropriately on this matter and that his advice was in line with that of his distinguished predecessor, Mr. Justice John Murray, who as Attorney General in 1991 advised the then Government when this matter was first mooted. Mr. Pádraig Flynn was Minister for the Environment at the time. The advice was that this matter was extremely doubtful constitutionally and if the Government had persisted the President would undoubtedly have summoned the Council of State, the matter would have been referred to the Supreme Court for a test, and the likelihood based on this Attorney General's advice in line with his predecessor, is that it would have gone down and the Government made to look extremely silly. I ask the Minister if he will confirm to the House that this is so.

It has been evident from the very beginning that there has been all-party support for the belief that opinion polls held in close proximity to polling day exert undue influence on the electorate. Nobody has contradicted that point.

I totally disagree.

It is quite evident that the situation has been so all along. All parties acted in a very honourable manner in this regard. There were no kudos or any advantages for any party in the new legislation. That is why it was possible for them to support it. The two-pronged approach to the debate in regard to this section has been quite different. One has been totally on technical grounds and the other on the grounds of principle. The two do not necessarily coalesce in this debate. If the debate is on technical grounds then the principle is still all right. If it is on the grounds of principle then it would suggest that some of the parties have actually changed their view. One of the reasons for that change might relate to the very idea of polls or opinion polls in their own right.

One need only look back at the "Questions and Answers" programme of last Monday night. That was not a scientific poll incidentally and related to this Bill. The poll question was whether the President should refer the Bill to the Supreme Court for a decision. That was not a very good way of conducting business because it could also be seen as trying to exert influence on the President and on the Council of State. This would be a very bad development particularly if one is approaching this debate in a non-partisan way. The result of that poll has entered into this debate subsequently and particularly with reference to the section which we are now debating.

One important possibility arises from the decision which has now been taken and Senator Norris touched on it indirectly. It remains to be seen if there will be a generous response from the media. I will go one step further than the formula put forward by Senator Norris as to how the media might demonstrate this generosity. It comes back to the principle rather than the technicality. If there is still merit in the principle, and I genuinely believe that all the people and all the parties were honourably reflecting what they believed to be the position on the ground, even the dogs in the street had expressed that very same view. Senator Ross may be correct in saying that the jury is still out, but it does not alter the fact that there is a strongly held belief that the media, through the publication of such polls, is exerting undue influence.

Here is an opportunity now for the media to have a self-imposed moratorium for that same number of days. That would get over the question of the principle which suggests that it is interference with freedom of speech because the media would be controlling their own destiny in this regard. It would also get over the technicality because it would not be necessary to have any legislation at all. It is interesting that on the Order of Business this morning once again we asked for a debate on the media. Its relationship with public representatives is believed to be somewhat jaundiced at the moment for whatever reason. For the welfare of the country, it is time to make an effort to find a more healthy relationship between the media and those in public life.

I issue the challenge to the media in view of the generosity of the Government on this occasion. I accept that this was in response to the astuteness of the other Members of this House and I accept that this House has again demonstrated its importance as a section of the Oireachtas. I issue the challenge now to the media that, if they believe it is exerting an undue influence on the democratic process, they would now respond and impose a moratorium of their own. I would have great confidence and faith in the media in the future if they were to do that.

We should not get carried away in terms of the relationship between the media and politicians. It is no worse than that between the media and the legal profession or the media and the teaching profession or the media and the trade union system. Every group has a problem with the media. I recognise that this was the House doing its business yesterday. I certainly will be delighted to vote this section should not stand part of the Bill. This proposal as it is written undermines the democratic process, offends the Constitution and is contemptuous of the electorate. That is a reality. What we saw here yesterday were six or seven hours of solid parliamentary work. The issues raised were dealt with in an unacceptable manner by the Government side. I do not mean that in a personal way but it was utterly frustrating to put forward point after point for hours yesterday and not to have them dealt with or responded to in a way that made any sense. At one stage last night I said that I would not leave until I at least saw some comprehension of the issues we were raising.

I wish to add my voice to those who have congratulated Senator Ross on finding this loophole in the Bill and bringing it to light. It has been seen as the straw that broke the camel's back. I understand there were people on the other side of the House who were as uneasy and unhappy with the section as we were. There is something wrong with the system when there is no method to articulate the voice of people over there within their own parties. I congratulate the Leader of the House for recognising when the House was burning down around him that it was time to call the fire brigade as he did at a particular moment last night. It was an important call and that should not go unrecognised.

I wish to raise a technical point about why I did not support Senator Costello's amendment to the Order of Business. Long years of experience have told me that delays are dangerous; I do not like the idea of snatching defeat from the jaws of victory; I believe that the issue must be dealt with. I believe that Article 20 of the Constitution requires the House to deal with Seanad Bills which are amended in the Dáil and which return here in a different way than the Dáil treats Dáil Bills which are amended in the Seanad. Article 20 is very clear on that.

I would suggest that Senator O'Toole pursue that in another manner.

I am raising this because there are technical issues here. We worked on the basis of our Standing Orders. Article 15 of our Constitution requires us to have our Standing Orders to do our business. We are doing our business here now on that basis. Standing Order 103 requires us to deal only with the amendments that are made in the Dáil. I still believe strongly that we are conducting our business unconstitutionally and I will write formally to the Cathaoirleach asking him to raise the matter with the Committee on Procedure and Privileges in order to seek legal advice. That will take this out of the realms of confrontational politics and deal with it. My advice from legal sources is that we will be moving in a different way.

Not only was this legislation flawed technically but it was constitutionally wrong in the way that it undermined the right to free speech. Its language was pretty flawed and seemed to me to be cobbled together by a couple of guys who had pints on a Saturday night and saw a good idea on television which they decided to turn into legislation on Monday morning. That is the way it struck us on this side of the House. There was no sophistication in its approach. It probably criminalised canvassers, civics classes in schools – certainly academics – and many more. It could not have been right, even if action was never taken against those people.

We should now re-address the question of a voluntary code. The National Newspapers of Ireland have had much to say about this and it is right that we call their bluff, as has been said by a number of Senators here. We should ask how a voluntary code can deal with the issues section 59 attempted to deal with. They will come forward, not with a voluntary code covering a seven day moratorium, but something that will cover a certain number of days before the vote. What we are now proposing to delete from the Bill could be dealt with through such code.

This is a reflection of the importance of a democracy with two Houses, which allows legislation to be modified and reassessed. It allows us to learn the lesson of all lessons whereby we pull back from the brink on time. There were other occasions when we did not, as with the rod licence legislation when flaws were pointed out in this House.

The Government has done a good day's work and I am not particularly worried about the reasons it did what it did. On this occasion the end result justifies their decision. It is a good day for democracy, for legislation, the Constitution and the Seanad.

It is certainly a good day for democracy and this House but it is not a good day for the Government. For the Government it is a day of humiliation.

It was the Senator's amendment. This is unbelievable.

The writing was on the wall for a long time that this was a deeply flawed Bill and that it was unconstitutional. For the Minister to say consensus was not forthcoming is a travesty of the facts. There was never consensus among the parties on section 59 and the Minister knew that all along.

The Leader of the House suspended activities last night so that the Government could get advice. The Government certainly did not consult with the Opposition parties on that advice. They were not looking for consensus; they were looking for a way out. I have still not seen that advice. Perhaps the Minister might circulate it to us. Why can the Opposition not have sight of it? To say that consensus was no longer forthcoming is far to much to expect any right-minded person to accept.

I want to make it quite clear where the Labour Party has stood on this issue all along. There have been various snide remarks made to the effect that the Labour Party was supportive of a ban on opinion polls. Labour Party policy has always been that there should be no such ban. When the Fine Gael amendment was proposed in the Dáil, which was substantially different from this particular one, we supported it according to normal practice. We would support the Independents with an amendment we might not fully agree with. You take the ball on the hop and do things as part of the Opposition. The Labour Party leader stated the party position loudly and clearly. This was seen as an infringement of civil rights, an infringement of the right to information and a muzzling of the electorate. That was set out by the Labour Party without even knowing an amendment had been before the other House. The party has shown good leadership. It is the type of leadership there should be whereby a party leader makes a stand.

It is a good day for this House and a good day for public opinion. Public opinion is the real reason the Government has done a U-turn. It realised that it was totally opposed. We saw the opinion poll on "Questions and Answers" showing that 83% were against the ban. The witch hunt of the media by certain sections of the House is wrong. The media are not the culprits here. The culprit is the Government. It tried to railroad through a draconian section in the legislation which would have muzzled any comment in the last seven or eight days of an election. It was attempted on the spurious grounds that polls unduly influence the electorate. There is no evidence of that, nor did the Government put forward any. Over the entire debate no facts, figures or statistical information were presented to back up its position.

Through section 59 the Government tried to put in place a trinity of issues it wants to see enacted before the next election. Corporate donations are in place, as are increased spending limits in constituencies. It also tried to muzzle the availability of information to which the public is entitled. The Minister is shaking his head.

The Senator's contribution is dull and boring.

Why did the Government proceed with it and why is the only information we are getting today that consensus was not forthcoming? There were eight hours of debate yesterday during which consensus was not forthcoming. Senator Ross hit on a specific and blatant flaw that clearly meant that if the legislation was passed here, signed by the President and went to the Supreme Court, it would be dismissed. The Government was left with no choice as the only alternative was to ram through a blatantly flawed Bill. Anybody could see it would have been knocked by the Supreme Court and that would have led the Government into a greater mess than it is in already. It could only do the inevitable.

The legislation will now have to wait until the autumn to be enacted. Will the Government come back with further amendments? Will the Dáil get the chance to debate the Bill again? A guillotine was imposed there when this Bill was being debated on Report Stage. What does this mean in terms of how we conduct our business? On the last two days this House sits, the Government expects that anything can be put through and the Dáil can go into recess without any thought that it could possibly be recalled. It is an insult to this House to treat it thus. We have been taken for granted for far too long and I am delighted that the Seanad has stood up and been counted. In the future the Government will think twice before it allows the other House to go into recess while it brings important legislation before the Seanad having no intention of accepting any amendments. I hope that this is the end of that.

There are other valuable amendments to the Local Government Bill—

The Senator is broadening the scope of the debate. I have allowed him quite a bit of latitude.

I do not intend to pursue it any further other than to say that it is bad practice and the sooner we stop it the better. I hoped the Government would accept my proposal to recommit the entire legislation. It has been rushed and there are major question marks over it.

I want to clarify that it was not the Minister but the House which decided on your proposal in relation to recommittal.

The Minister could have accepted it. He could have nodded his affirmation and then no doubt the House would have done likewise.

The House does not conduct its business on the basis of nods from Ministers or from anybody else.

Of course the House conducts its own business in its own fashion and we do it properly under your chairmanship, but what I mean is that normally when the Minister nods, the other side of the House nods with him and they come through the lobbies in support.

The Senator is being very unfair. Those comments are irrelevant to the matter we are discussing.

The Senator is being mischievous.

I am far from being mischievous about this matter. I am delighted to support the Minister when he is deleting an amendment which his Government put forward and which is fundamentally flawed.

As someone who debated the opposite side of the argument with Senator Ross for much of yesterday, I do not wish to be churlish and I congratulate him on identifying the anomaly with regard to polling day. I acknowledged at the time that there was an anomaly in not including polling day in the ban, but polls, particularly exit polls, should not have been covered by that.

It also would be only fair to recognise, as Senator O'Toole did, the part played by Senator Cassidy. He showed why he is Leader of the House, by taking the initiative when he saw the difficulty in that section and by making contact with the Minister and with officials. Following consultation, it was agreed to suspend the House and that gave time to look at the matter.

The comment was made yesterday and again today that the Bill was flawed in concept. Personally, I disagree with that. Members on the other side acknowledged during the debate that opinion polls have an effect on the outcome of an election. As the Minister and others pointed out previously, because of our proportional representation system a small shift in opinion can affect not only who wins seats but also the overall outcome of the election. Therefore, there is merit in this matter being further considered.

I never accepted that it is a matter of freedom of speech. A free press is fundamental to any democratic society and it is important that nothing is done to inhibit or curtail it, but I do not think the banning of opinion polls would achieve that. Equally, with freedom comes responsibility. The media have responsibility to be more balanced, measured and fair in their comments. That is all I ask for. We should be open to criticism but some of the over-the-top and hyped criticism does nothing to enhance the democratic process and the arguments of fair comment.

In one of his more colourful contributions yesterday, Senator Ross drew an analogy between Fine Gael and the unmarried father who left his partner holding the baby. The baby is now an orphan and to some extent I regret that. There is some merit in ensuring that the baby does not continue in that role. Senator Maurice Hayes in his contribution advocated a period of consultation with all the interested parties and that would be a sensible route to follow. Through that consultation, in a balanced way we may achieve a good outcome from what has been a controversial issue.

I was disappointed with the Minister's speech when he said that the reason this was being recommitted to the Dáil was there was no consensus between the main parties. It was unfair of the Minister to say that. There certainly would have been no consensus here if Senator Ross had not found this flaw in the amendment to the Bill.

We have asked consistently for the Attorney General's advice on this matter. We now know that his advice was available to the Cabinet. It should be circulated here because it would benefit everybody, especially as this is now being recommitted to the Dáil. Was advice given to the Department or to the relevant Minister on this matter?

What is the position on this section? The Bill cannot be enacted until it goes back to the Dáil. If that is the case, does it mean that the Bill is on hold until it comes back from Dáil Éireann? Will the Cathaoirleach clarify the position in that regard?

For the information of the Senator, the Bill will be returned to the Dáil with the amendment which, I understand, will be made by the Seanad deleting this section from the Bill.

There is a form of management called ready, fire, aim. It is not a very clever form of management but I suggest that in the past week we have seen evidence of that form of management by the Government. To pass legislation without debate in the Dáil is sinful enough in itself, but it is much worse to pass legislation and then not give proper attention to the 68 amendments tabled in the Seanad. The Government did not reply in most cases to those amendments. Senator O'Toole has touched on at least one or two of them which were worthy enough to suggest that this was a sloppy Bill.

I am in my ninth year in this House and one of the questions I have raised time and again is whether we can avoid enacting hastily drafted legislation which is not given detailed investigation by this House. Every now and then we are told that legislation is important and the Government wants to get it through. This comes down to the ends justifying the means.

This was one of those occasions when the Government said it had to get this Bill through. It decided to put it through the Dáil without discussion and to get it through here without serious discussion. As a result these 68 amendments would not get the necessary attention.

I disagree with the view that the reason this may not become law is that there is a constitutional difficulty with it. There may be such a difficulty, but the reason this is not getting through is that Senator Ross discovered one particular flaw in it. I congratulate the Leader of the House for being astute enough last night to say that he realised this is a flawed Bill, but he said that after about eight hours of debate.

Let us take into account what has been said today. One outcome is that we are not sure whether there should be a ban on public opinion polls in the run up to an election. If there is to be such a ban, let us make sure it is done in a sens ible, logical, rational way following thorough investigation.

Let me take two instances which cropped up yesterday. Some 15 years ago France introduced a ban on public opinion polls in the eight days prior to an election and then discovered that this did not work well. It was discovered that the radio stations based in Luxembourg and the newspapers published in Belgium were carrying such opinion polls. Then it was discovered that on radio a newspaper in Geneva was inviting the French public to look at the results of its opinion polls on the Internet. The French have decided to look again at this matter to see if they can find a better formula. We could have carried out such an investigation in the past week if we had not been in such a rush. Senator Maurice Hayes pointed out that the newspapers in Germany have reached a consensus not to publish public opinion polls in the few days before the election, although I am not certain how that operates. These are some examples of how thorough work could have made this at least a way of finding a solution to a worrying problem.

I congratulate the House, the Government and the Minister of State in attendance for admitting that the matter has been considered and that they are not going to proceed with it. In the case of Senator Ross, the point he noticed and drew to our attention would have made a mockery of the legislation. It would have been an embarrassment. Let us avoid the policy of hastily rushing through legislation in the future.

I am unclear, and perhaps always will be, whether it was the lack of consensus or the detection by Senator Ross of a flaw that convinced the Government not to proceed with the amendment. I never will know.

With regard to the Attorney General, is it true that his advice to the Government does not filter through to any other organs of politics? If so, I will not be told if the Attorney General advised the Government.

I wonder if any research is carried out at all. When exit polls are carried out in the UK and the USA, they are not published until after the results of the elections emerge.

A Senator

They are.

I said they are not published until after the elections.

They are published before the result.

I thought there was an embargo on the US polls.

The Minister will reply.

I am anxious to ask these questions. I wonder if there will ever be a debate in the Dáil concerning the deletion of this section. The rushing through of legislation happens all the time in this House, as with our debate on the Local Government Bill until 1.30 this morning. It does not do justice to anybody. It obviously happened in the Dáil, wherein this matter could have been debated. I am sure many issues could have been addressed there from which we could have learned. Now we are left with a Bill that may never be discussed again. The electors still do not know anything more. Suddenly this matter is no longer an issue because they do not want it.

In the final session of the House, we find that everything is rushed through. This is frustrating because Seanad Éireann is being taken for granted.

Mr. Ryan

Ní thógfaidh mé mórán ama. We must restrain our flights of fantasy. What has happened today has proven that politics has worked in the way it is meant to work, that is, there are two Houses of the Oireachtas the functions of which are to make Government accountable, directly or indirectly. A major problem pertaining to this Bill is that one House of the Oireachtas has adjourned for three months. Therefore, the taking of sensible amendments becomes and issue of national importance because it means a three month delay in the passage of legislation.

A matter as important as the one under discussion should not have been rushed through one House and could not have been rushed through this House. We ended up with a welcome set of circumstances, which is somewhat humiliating for the Government. It is not something I wish to dwell on.

I am disappointed that the Labour Party is not included in the consensus because my party leader did not agree to this. We did not agree on Report Stage, during which we sought to have the Bill recommitted to have a proper debate. Obviously we do not count in the consensus, so perhaps Fianna Fáil has new parties in mind for coalition partners that exclude us.

Many comments of the media have been misinterpreted. We do not do a good job in this House of illustrating that changes like this happen all the time. They do not necessarily happen in a style warranting dramatic headlines, but legislation is changed in both Houses of the Oireachtas all the time. Most of the time, nobody notices. The issue of opinion polls caught people's imagination because it partly affected what the media regarded as their own interests. This is the function of democracy. When legislation is rushed through, as was this Bill, it is said, perhaps by the Government or the bureaucracy, that parliamentary activity is only a gloss and that only the Government is important.

What has occurred illustrates that there is no infallibility in Government, nor is there infallibility in the Office of the Parliamentary Counsel to the Government. However, I have never met a parliamentary counsel, although I have spent 20 years hearing about their wisdom. They should be brought before an Oireachtas committee to explain themselves because they are responsible for more violence against the English language, among other things, than anybody else I know. They are responsible for further massacres on the Irish language. Some of their Irish is very convoluted, particularly in constitutional amendments.

I regret that Fianna Fáil will be able to continue with its much loved focus groups because they would have banned them for the week before an election under their own amendment. They would have had to disband those groups when they would be needed most – just before an election.

Senator Ryan was born into the family. He knows all about it.

Mr. Ryan

The obsession of Fianna Fáil with my genealogy is very flattering, but it is a bit worn out at this stage.

Was there no room at the inn?

Mr. Ryan

Ní gá leanúint leis a thuilleadh.

I want to compliment the Leader because no Bill has been guillotined in this House since my return to the Seanad. There are no Bills on the Order Paper for this House, but there are nine or ten Seanad Bills on the Dáil Order Paper. The Dáil still requires guillotines to deal with legislation.

I would prefer if the Senator refrained from dwelling on the way the other House does its business.

Mr. Ryan

The "I"s of the Cathaoirleach are eloquent. However the issue of opinion polls was dealt with, it would have been a travesty in a free society to inhibit academic research in the period of an election. What happens in the public mind during an election is a major part of our sociological and political understanding. If one cannot ban the taking of opinion polls during elections what is the point in banning their publication.

The point Senator Quinn made was that they would be published elsewhere and that theBelfast Telegraph would have a wonderful time selling newspapers and advertising its website with opinion polls that could not be published here. Therefore, just like my party, I conclude that the banning of the taking of polls is impossible and the banning of their publication is profoundly illiberal. There was never a good argument for it.

The reason we are so excited is that a Bill that could have been amended in two minutes and sent back to the Dáil and approved in two minutes will now have to be shelved for three months until Dáil Éireann resumes in plenary session.

On the issue of opinion polls, my views run against popular sentiment. This is a great day for the media. They are currently run ning the country and have been for many years. We hear nonsense about public outrage over opinion polls. One would think that the public invented opinion polls and that they are part of the democratic institutions of the State. They have nothing to do with democracy. They are designed to sell newspapers. The media have whipped up emotion among the general public with regard to the issue. Any members of the public who have been asked for an opinion regard opinion polls as a nuisance. We could be wallowing today in the displeasure of the Government, but we should focus on the fact that we have been frustrated. It should have been amended and sent back to the other House and the legislation should have proceeded as first envisaged. I deplore the breakdown of consensus on the issue.

The important point that emerged from Senator Feargal Quinn's contribution on what has happened abroad is that newspapers are setting the agenda on this in other countries. They are also setting the agenda here. I have been around long enough to see what is happening. The merits or demerits of this section of the Bill aside, if the Government had opted to go it alone on this issue, it would have been viciously savaged by the media. It is a bad day for democracy. Opinion polls have nothing to do with democracy, they are a nuisance designed for one thing only – to sell newspapers.

I will be brief. Since I became Leader of this House, my view has been that all legislation has to make good and common sense. Last night was a judgment call. I thank Senators O'Toole, Walsh and Quinn for their kind remarks in relation to Senator Ross's proposal. It would not have made good sense to allow opinion polls in the seven days prior to the election and ban them on the day of the election. Regarding the kudos in the House, this would have gone through last night were it not for my judgment call.

I thank Senator Ryan for his kind comments as well. Let us be fair. There is no time limit or guillotine on any legislation in this House and there will not be one for as long as I am Leader. We are proceeding in the correct manner. This is the Upper House of the Oireachtas and we have demonstrated that in recent days. We sat for 13 hours and 20 minutes and spent 3 hours and 44 minutes exercising our democratic duty during 15 votes yesterday. That is what we are here to do under the stewardship of the Cathaoirleach.

I want to take up the point made by Senator Maurice Hayes in his excellent contribution. He is someone who understands both the political and media side of life and is very privileged to command the respect of the media. Perhaps there could be a meeting of minds between the Government, the Opposition and Senator Hayes which would progress this general consensus without scoring political points.

There was a change of heart on the Opposition side between Committee Stage in the Dáil and the Seanad. No one was scoring political points. When all-party consensus did not emerge, the Government decided not to run with the measure.

The number of Independents in the Dáil is in double figures and 624 votes, all of which were number fives, sixes or sevens, decided the last five Dáil seats. That constitutes a change of Government and is the reason this legislation is so important. People have to be allowed freely to elect the Government. I can tell the House who I gave my number one to in every election since I started voting at 21 years of age.

(Interruptions.)

I cannot tell the House who I gave my number two, three or four to.

Tell us.

Neither can any one else.

Would they all be Fianna Fáil by chance?

The Independent benches would not understand, which is why the Senators are Independents.

(Interruptions.)

We regard numbers two, three and four as of only minor importance and numbers five, six and seven seem even less important, but that is how Governments have been elected—

Does the Minister, Deputy O'Rourke, know all this?

She comes from the same profession as the Senator.

(Interruptions.)

Order, please.

I thank everyone for their co-operation. Yesterday was a very long day and it looks like today will be equally long. I welcome the decision. It is great to see the former Minister for the Environment and Local Government and current Minister for Defence, Deputy Michael Smith, in the House. He is a very experienced member of the Government and has been a Member of the Seanad twice while I have been here.

I compliment the Leader of the House on the action he took last night. I also compliment Senator Ross for his diligence. Perhaps some Senators should show a little more humility. We got it wrong although our intentions and concerns were possibly right.

When one does not bring to fruition what one sets out to do, one must at least admit to a certain degree of misjudgment along the road. I am happy to do that, but would have preferred if the Fine Gael and Labour spokespersons had done the same during the debate. I do not want to impute anything but the most honourable intentions on the part of anybody here. However, to suggest that there was no consensus among the major parties would be misleading.

A contribution from the Fine Gael front bench spokesperson in the Dáil, Deputy Olivia Mitchell, was as follows:

The practice of publishing opinion polls very close to an election is undermining the whole voting process by seeking to second guess what the public is going to do. There is no doubt that predictions can be self-fulfilling and to that extent distort the process of an election. Even if the people are submitted to several opinion polls, there has to be some point in the run up to an election when they are left to make up their own minds and to decide for themselves without the benefit of being told how other people are voting. That is the critical thing.

I consider that a very genuine contribution and one which the Deputy obviously believes in. Deputy Gilmore in a recent contribution said:

I recall some years ago there was a Government proposal to have a moratorium on opinions seven days prior to an election or a referendum. I recall supporting that proposal at the time and being subjected to a rather critical editorial in a newspaper as a result.

Towards the end of that contribution he 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. There will be screams of anguish, particularly from sections of the media which undertake opinion polling, but this needs to be viewed as protecting the independence and integrity of the electoral process rather than providing an opportunity for good copy, which of course opinion polls are.

We should, perhaps facetiously, take at least one lesson from this, which is that the Government should not take advice from Fine Gael on these matters.

Or the Minister could say a week is a long time in politics.

There have been significant contributions to the debate. Many Senators have said the jury is out on this matter. Having watched elections in other countries in which the results of exit polls are publicised while the count is still proceeding and seats still have to be filled, I believe we have to ask ourselves if that is the way we should do business. There is an opportunity to hold a debate on how to resolve these matters in a fair and equitable way. We are not closing off the debate, nor are we saying we possess all the wisdom on this matter. We do not. It is fair to say that I have some experience in this. I have never known an opinion poll which was within four or five points of my support, although at times I would have preferred if I had.

There is an unresolved question mark over this matter. In concert with the major parties, we set out to deal with it in a particular way. There are other ways of dealing with it. Suggestions have been made by Senator Labhrás Ó Murchú regarding the reaction of the media and the freedom with responsibility which is necessary if we are to have ongoing debate on matters such as this.

It has been said that this provision is a knee-jerk reaction to the Tipperary South by-election. This proposal was made by Fine Gael who won the by-election easily, so it could not have been a knee-jerk reaction.

I do not wish to delay the House beyond saying there is a basic concern which is unresolved. There is space and time for reflection on how matters like this are to be dealt with. In sensitive areas such as this it is important that we have the widest possible consensus. In this I include our eminent Independent Senators and Members of the Dáil. They have their rights and views and we must distil those views in a way which produces the best possible result.

People love to call these actions U-turns. When clear evidence has shown there is another road that can be travelled, a different way of doing things and a need for further reflection and consensus, I hope we can all be open to a change of mind and can make that change in the most comprehensive and sensible way. People may wish to call that a U-turn but it would be extraordinary if no one changed his mind in the face of evidence put in front of him or when new thinking emerged, or if he did not wish to listen to other advice.

I thank the Seanad, the Leader of the House, Senator Ross and others who have contributed to the debate. I found it interesting. It was done without acrimony. We move forward from today. Nothing has been done which damages our democracy or takes from us the ability to make changes in the future.

Question put and defeated.
Bill reported with amendment.

We will now resume the debate on Report Stage, on the amended text of the Bill. Amendments Nos. 55 to 67 are no longer relevant to the provisions of the Bill as reported by the committee of the whole House and, consequently, fall.

Amendments Nos. 55 to 68, inclusive, not moved.

The debate is now concluded on the Report Stage amendments tabled by Senators. As this is a Seanad Bill amended in the Dáil, on the question, "That the Bill be received for final consideration", the Minister will now explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. The text of those amendments has been circulated to Senators.

As the House is aware, when I suggested last evening that the Minister might make his contribution at the commencement of Report Stage, the Senators proposing the amendments did not agree to that.

Question proposed: "That the Bill be received for final consideration."

The Dáil made two amendments to the Electoral (Amendment) Bill, 2000, passed by the Seanad on 21 June 2001. We have dealt with the second of these and I now address this amendment.

The first amendment, which was made to section 50, provides for a range of changes to the Electoral Act, 1997. The amendment inserted the following words in subsection (1)(a) of section 18 of the 1997 Act: “The general conduct and management of the parties' affairs and the lawful pursuit by it of any of its objectives and without prejudice to the generality of the foregoing.”

Section 18 of the Electoral Act, 1997, provides that qualified parties who receive State funding under Part 3 of the Electoral Act, 1997, shall, subject to guidelines issued by the Public Offices Commission, apply the funds for any or all the following: the general administration of the party; research, education and training; policy formation; and co-ordination of activities of the branches and members of the party.

The payments made to the parties are deemed to include provision in respect of promotion of participation by women and young people in political activity. Under subsection (2) of section 18, the payments under Part 3 of the 1997 Act cannot be used for payment of election expenses or in furthering a particular outcome at a referendum. The proposed amendment is intended to remove any doubt that the four items of expenditure I have listed include the cost of the general conduct, management or other activities of a political party, other than the election expenditure of the party. I ask the House to support the amendment, which ensures a broader interpretation while maintaining strict limitations.

I am not sure I understand where we are. I received a document yesterday which contains the amendments made by the Dáil. I am clearly lost now.

That is what we have been dealing with. Events have overtaken part of that document. The amendment which proposed the inclusion of section 59 in the Bill is no longer relevant. The Dáil also made another amendment, which the Minister has now reported to the House and that is the amendment which the Senator may address, if he wishes to make a contribution. We are just concluding Report Stage.

Yes, I understand that. May I be clear? Are we discussing section 50?

Thank you.

Question put and agreed to.
Question proposed: "That the Bill do now pass."

This was a good exercise which showed the value of the upper House. We have seen evidence of this in the past. I pay tribute to the Minister of State, Deputy Dan Wallace, who remained in the House yesterday for more than 13 hours and dealt with a number of Bills, including this one. I also pay tribute to the Minister for Defence, Deputy Michael Smith. He found himself today in a more difficult situation than he might like. He contributed to the debate in an accomplished and reasoned way. As a former Minister for the Environment he is very welcome here.

I also wish to make tributes. I pay a particular tribute to Éamon de Valera, who established the Seanad with the very purpose it has fulfilled in recent days, to oversee legislation and to examine it in greater detail than is possible in the Lower House. He has been proved right and we should remember him with great honour. This House has, once again, proved its worth.

Tribute should be paid to Senator Ross for discovering this loophole and to the Fianna Fáil Party for what must be called a slight bend, if not a full U-turn.

We are a flexible party.

What I said here yesterday and will continue to say is that we want the Attorney General's advice. When we hear from the Government that it had legal advice on something, we ask why they refuse to publish it. That will come up again in the Local Government Bill. It would always be appropriate for legal advice to be given to us in the House. I thank the Minister for being here. Fair play to the Government for seeing the error of its ways and making the changes necessary.

Humility is the theme of the afternoon and that does not sit very comfortably on the Independent benches. Now that this particular clause has been deleted, I thank the Minister for sending this most welcome message to the Seanad. I thank the Leader of the House for the very mature way he dealt with it last night and all those who contributed to the debate. It was not acrimonious last night, but there were some pretty healthy tensions here when the arguments were being made.

A mistake had obviously been made and in the end we got the best result for everybody. Even though we needed a day off to think about it the Seanad worked and the mistake was remedied successfully here. I thank the Government in particular for taking that decision and acknowledging the mistake. As the Minister says we all make about the same number of mistakes in life; about 50% of the time what we do is wrong. I thank him very much for remedying this one.

Mr. Ryan

I regret that the quotient of humility on the Independent benches has diminished since I left them.

Is the Senator going back?

Mr. Ryan

Not at all; I am very happy in my new position. Senator Ross deserves all the plaudits he has received. I do not know how we will get him back down to earth again after all this praise; he is not used it and it will not do him any good at all.

However, that is what happens regularly in these Houses. There is a presumption that parliamentary scrutiny is a luxury that we could do without or that it is an unnecessary intrusion on efficiency, but that is not the case. It is the essence of how legislation can be improved and it does not matter who is in Government. The atmosphere in which Bills are discussed depends on the good sense of Ministers. It is not a question of the Opposition getting its own way; it is a question of Ministers addressing the issues, as I have said on several occasions.

I think I am more relieved than regretful that I was not here to participate in the marathon. However, I am glad that good sense prevailed. There are few more sensible Ministers in this Government than the person sitting in front of us now. I think it has something to do with his experience as a Member of the Seanad. It probably teaches us all a little bit about humility. Speaking from personal experience, winning and losing elections are very good for humility.

I am very glad with this outcome, but just because Seanad Éireann amends something on 11 July, it should not necessarily mean a three month delay in completing the passage of legislation. There should be a way for us to deal with it in a reasonable timeframe.

I have said most of what I wanted to say already so I will not repeat matters. I shall just make up for one omission. I failed to deliver the required praise to the Leader of the House, Senator Cassidy, and I would like to repair that by saying that he acted quickly and decisively last night which assisted matters. We were also assisted this afternoon by the graciousness of the Minister which is quite characteristic of him and we in this House appreciate that.

There is one little remaining area of controversy between the Minister and the Fine Gael benches over whether there has been a U-turn. Senator Coogan suggested that if it was not a U-turn, it was a bend. In my usual mild way can I suggest a compromise? Could we call it a "U-bend" which in plumbing is a little device that catches and removes noxious material from the system?

I thank you, a Chaithaoirligh, for the excellent way you handled the business and all of the Senators particularly for the glowing tributes to the Government. It is nice to come here on the task we had this afternoon and find the Government being praised so highly. It is always pleasant coming in here.

Senator Brendan Ryan continually reminds me of the cliffs when I fell over them. As both he and I know that too was a great educational curve and opportunity for me. I genuinely look forward to coming back here to debate a series of issues. I know that for the greater part everyone is trying to ensure that we have the best possible legislation which will stand the test of time. In this case we did not achieve what we originally set out to do, but I am still extremely happy with the outcome.

Question put and agreed to.