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Seanad Éireann debate -
Friday, 14 Dec 2001

Vol. 168 No. 25

Referendum Bill, 2001: Second Stage.

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

As this is a very important Bill, we should have a quorum.

Notice taken that 12 Members were not present; House counted and 12 Members being present,

On 23 June 1999, Seanad Éireann considered a Private Members' motion on the provision of information at referendums. The motion, tabled by Senator Quinn, was discussed in the aftermath of the referendum campaign on local government recognition which was characterised by a lack lustre debate, a disappointing turnout and a large number – over 100,000 – of spoilt referendum ballot papers. The volume of spoilt ballot papers, in particular, appeared to send a strong message to legislators that the provision of information and the facilitation of debate at referendums required examination.

In response to the Private Members' motion, the Government gave a commitment to examine the various methods of providing information at referendums, having regard to the experience and work undertaken in this area including, in particular, the work of the three ad hoc commissions, the Referendum Commissions, the McKenna, Hanafin and Coughlan cases and the reports and recommendations of the Constitution Review Group and the all-party Oireachtas committee.

The All-Party Oireachtas Committee on the Constitution has now reported and its sixth pro gress report, entitled The Referendum, makes a number of recommendations on the provision of information at referendums. Principal among these are proposals to amend the functions of a Referendum Commission, including removing the role of presenting the arguments for and against a proposal; providing a new power to allocate finance equally among "pro" and "anti" sides and a recommendation to provide additional functions to promote voter participation. These and other matters have been considered by the Government which has decided to bring forward this short Bill to implement a number of the recommendations contained in the all-party Oireachtas committee's report.

Before I deal with the provisions of the Bill, I want to make a number of general points on the conduct of referendums. Referendums are important. They provide a mechanism to change the fundamental law of the State and the electorate, as guardians of that law, have a crucial role to play. The fact that any amendment to the Constitution requires a referendum offers the electorate the opportunity to express its opinion on political and constitutional issues. Since 1937, the Constitution has been amended following a referendum on 19 different proposals. Six proposals have been rejected – the most recent proposal was on the Nice Treaty – demonstrating that the electorate can be discerning on issues put before them. Apathy, low turnouts and an under-informed electorate, perhaps leading to a large number of spoilt votes, serve only to devalue the primacy of the Constitution. The arrangements for referendums must, in some way, provide for the information needs of voters and at the same time encourage voter participation to the greatest extent possible.

There have been changes in the conduct of referendum campaigns over the years, most noticeably in terms of the tendency for cross-party support for proposals and an increase in interest group participation. At a statutory level, there also have been developments. In terms of the statutory provision of information, the Referendum Act, 1994, provides for the following: copies of the constitutional amendment Bill may be inspected or obtained, free of charge, at any post office; a statement, prescribed by resolution of each House of the Oireachtas, is printed on polling cards, sent to every elector and displayed on posters at polling stations; the order of the Minister appointing polling day must be published in Iris Oifigiúil; public notice must be given by the local returning officer for each constituency stating the date and hours of polling and indicating that copies of the constitutional amendment Bill may be inspected or obtained free at any post office; and a polling card must be sent to each elector, other than postal and special voters, indicating the elector's number on the register, the location of the polling station and the date and hours of voting.

The provisions under the 1994 Act are, in a sense, the formal statutory requirements on informing the public about the polling day and hours of polling together with the terms of the proposed amendment. They could probably be best characterised as basic information provisions which, although necessary, are unlikely to impact decisively in terms of informing the public.

The provision of information was developed at the divorce, bail and Cabinet confidentiality referendums. Ad hoc commissions, which comprised the Ombudsman, the Clerk of the Dáil and the Clerk of the Seanad, were established to oversee the preparation of statements setting out the arguments for and against the proposal at each referendum.

Against the legal backdrop of the McKenna judgments the Referendum Act, 1998, was enacted. It was designed to put the ad hoc commissions on a statutory footing and to further advance the issue of providing information to the electorate. Specifically, the Act provided for the establishment of an independent statutory Referendum Commission whose primary role is to explain the subject matter of the referendum to the population at large as simply and effectively as possible, while ensuring that the arguments of those against the proposed amendment and those in favour are put forward in a way that is fair to all interests concerned.

The question that needs to be addressed following the developments I have outlined is whether the operation of referendum information campaigns, especially of informing the electorate of the proposal and motivating them to express their opinion at the ballot box, has improved. The answer, or at least part of it, is that despite the endeavours of ad hoc commissions and the Referendum Commissions, turnout and participation have been disappointing and there is now a consensus that the manner in which referendum information campaigns are conducted is unsatisfactory.

Clearly there is no perfect solution to this problem. During the debate on the Referendum Act, 1998, the point was made that each change was an attempt to improve matters and if the changes were found wanting, then the issue would be revisited. Different types of solutions are provided for internationally but again none is perfect. In Ireland we must also have regard to the Constitution and Supreme Court judgments in considering possible solutions.

The Referendum Commission, in its report on the referendums on the Amsterdam Treaty and Northern Ireland Agreement, referred to the difficulty in getting the message across to the electorate, as the following passage from the report indicates:

There was a clear pattern which suggested that the average person has become quite lazy when it means reading or helping oneself to information and there is a high level of reliance on media broadcasts rather than the written word. The effect of television and radio cover age made them at least feel informed and exposed them to the issues. Those who did take the trouble to read the written material scored it highly in terms of balance and fairness (62%) and for its usefulness in decision making (53%). It was also felt to be easy to read and understand and gave an unbiased view of the issues.

I want to state here on behalf of the Government that the amendments proposed in the Bill are not a reflection on the commission members or their staff, who have carried out their functions in a satisfactory manner for the six referendums for which they have been established. This is especially true when one has regard to the complexity of the referendum proposals relating to the EU and the subject matter of the other proposals where engaging the electorate was always likely to be difficult.

In summary, the impact of the statutory provision of information under the Referendum Act, 1994, is small. The McKenna judgment has narrowed the parameters within which Government can promote, with public funds its views on a proposal. The rationale of the Coughlan judgment is that RTÉ breaches its statutory duty of objectivity and impartiality if it allows political parties and other bodies, which support a particular referendum outcome, a considerable advantage in the broadcasting of partisan material. The format of information provision via the work of the ad hoc commissions and the Referendum Commissions has been criticised as anodyne and ineffective, notwithstanding the valuable work undertaken by these bodies in accordance with their non-statutory and statutory briefs.

The Bill before the House addresses a number of these issues and I would now like to outline the changes proposed. The Bill amends the Referendum Act, 1998, and contains two sections. Section 2 is a standard provision dealing with the short Title and construction, while section 1 provides for the substantive change.

Section 1(a) replaces the existing subsection (1) of section 3 of the Referendum Act, 1998, which sets out the functions of a Referendum Commission. This section does two things: it removes the current functions available to Referendum Commissions to prepare statements setting out the arguments for and against a proposal and also to foster and promote debate; and it provides a new function of promoting awareness of the referendum, including encouraging the electorate to vote.

One of the aspects of the work of the Referendum Commission which has been subject to most criticism has been its function to present arguments for and against a proposal. This provision was drafted in consequence of the McKenna judgment and sought to bring equity of approach in terms of the balanced provision of information. However, there is general agreement that the provision has not been a total success. The alignment of arguments for and against a proposal in an almost sterilised format has not encouraged debate and can result in seemingly equal weightings being given to alternative arguments which do not merit equivalent comparison in any rational assessment.

The Oireachtas All-Party Committee on the Constitution refers to this in its report in the following terms:

The committee agrees that the commission should provide information but does not believe that it should have any direct responsibility for putting the arguments for and against a referendum proposal. It is understandable that such a function should have been given to the commission in response to the McKenna judgment. However, the political needs of a referendum cannot be met by setting before the electorate two lists of arguments, all of them detached from the contexts that give them sense and weight, in an effort to be even-handed. That leads to leaden rather than lively presentation. It also leads to confusion because while the voter must arrive at a summative judgment, he or she has no means of measuring the weight to be given to each of the arguments presented in this way. The engagement of the commission directly in the campaign tends to weaken the sense that the political parties and the interest groups should be the protagonists in the debate.

It has been decided, therefore, to remove this function from future commissions, who will nonetheless retain their powers to prepare statements containing a general explanation of the subject matter of the proposal and the power to publish and distribute such information as they see fit.

The second amendment provides for a new power for referendum commissions to promote public awareness of the referendum and to encourage as many people as possible to vote. It is difficult to examine the problem of referendum information and turnout in isolation from the wider problem of voter turnout and indifference towards the political system. Political participation generally has been declining and the downturn in interest in referendums cannot be seen separately from the more general trend. An independent body such as a referendum commission is ideally placed to undertake these additional functions. The format of the information campaigns will be a matter for each commission, which will continue to have all the powers it considers necessary for the performance of its functions under the Referendum Act, 1998.

The amendments to section 1(b) and (c) are consequential on the change of functions proposed in paragraph (a). Paragraph (b) repeals section 6 of the Referendum Act, 1998, which provides that a person may make a submission to the commission about the proposal of the subject of the referendum. This section is directly related to the function of preparing a statement of arguments for and against the proposal in the existing subsection (1)(b) and it will not be required following the earlier amendment. Paragraph (c) makes consequential amendments to section 8 of the 1998 Act, which concerns the publication of notices by a referendum commission. Paragraph (a) of the existing section 8 refers to notices informing people that they can make submissions to a commission. The other two amendments are consequential.

I refer to the proposal in the Oireachtas all-party committee report recommending the allocation of funds to campaign groups promoting both sides during a referendum. The Government has decided not to proceed with the recommendation at this stage. It is a radical proposal which has been raised before, but it requires careful examination in the context of the relevant Supreme Court judgments and the difficulties with the practical application of such a scheme in the context of those judgments. These difficulties were acknowledged by the 1998 Referendum Commission in its report on the Amsterdam and Northern Ireland referendums. In that report the commission commented on the introduction of such a scheme as follows:

From its experience, the commission would see considerable difficulties in ensuring compliance with the McKenna [judgment] and avoiding litigation.

Many matters need to be addressed. How should the funds be divided? Should both sides be funded equally or at the discretion of the commission based on statutory criteria? What would be the information role of the referendum commission? Should a commission with a function of funding both sides be activated in all referendums? What conditions should be attached to such funding without interfering with a group's advocacy strategy? Would political parties be able to avail of finance? Could an individual get funding? How large would a group have to be to receive funding? How is the taxpayers' money to be accounted for? Are there different levels of information and public debate requirements?

We might ask even more fundamental questions. Would the electorate be any wiser after being deluged with conflicting information? Would more information prove to be a greater turn-off for the electorate? Would the taxpayer be in favour of the use of their money by the Government, political parties, pressure groups and individuals to persuade them to vote "Yes" or "No"? I raise these questions not to be obstructive, but to highlight some of the complexities that would require careful consideration if such a scheme was to be adopted. I note also that the Oireachtas All-Party Committee on the Constitution had difficulty with this matter. A minority of the committee took the view that funds should be divided equally between the two sides as a matter of principle, while a majority were of the view that the division should be on the basis of what was equitable rather than what was equal.

In the final analysis, the quality of the judgment that the electorate expresses at a referendum is, among other things, a function of the quality of the information available to them. This Bill will allow referendum commissions to focus on the provision of information in an objective way rather than an approach based on arguments for and against, which has proved problematic. The Bill will also seek to encourage awareness and political participation by providing future referendum commissions with a specific remit in this area. I commend the Bill to the House.

I wish to share my time with Senator Manning.

Is that agreed? Agreed.

A moment ago I saw the Leader come into the House and then disappear very quickly. It is not extraordinary that he has failed to turn up throughout the day—

I was not allowed to refer to the Leader this morning on the Order of Business.

Please Senator Coogan, it is not in order.

He may return and I might have the opportunity to say it again. I am sure the Deputy Leader is highly embarrassed at the procedures adopted today. I see the Leader has arrived. Last afternoon I was informed that this Bill was to come before the House today. I had to find out exactly what were the details of the Bill. Since last afternoon I have tried to speak to people who were on the all-party committee but, unfortunately, I was only able to contact one or two of them. I would like to have heard a balanced account of the details and views they had, not just those of members of my party but members of the Government parties as well. I wanted to establish if there was a consensus in the committee or if it was just what the Cabinet wanted to extract.

It is most unfortunate that a Bill like this has been brought before the House so quickly. I am concerned about the public's perception of what is happening here today. It will be another sleight of hand as far as they are concerned. We have spoken about 100,000 spoiled votes and low turnout. Given the way we conduct business here, people very often wonder why they should bother voting. They may feel that politicians are playing tricks or using mirrors. Legislation that may influence their decision in the future is suddenly passed and it is out of their hands. This is the cynicism that has been created. Some of the reason for that lies with how procedures are being conducted here today. People will ask why we did not get the opportunity to debate, analyse and explore the outcome of legislation that came before us.

The Minister said, in reference to the second amendment, that the commission will be the appropriate body to encourage people to vote. People do not see a relationship between what happens in this House and what affects their lives. That is the reality. People did not get more information when the commission established itself and sought to give a balanced view. They got too much information. They got information that was unbalanced because some minor aspect was dealt with on the same basis as a major aspect. That served only to confuse. It was not that the people did not know what was going on. The more information they got, the more confusion was created. That 100,000 votes were spoiled was not a comment on the way matters were being handled, or the issue itself, but because people do not know how to fill out ballot papers when there is a multiplicity of them. It is not the job of the commission to tell them how to do that either. This or future Governments should consider formulating a compulsory subject in schools where ballot papers are used on a continual basis and students come to understand the relationship between the decisions that are made by them on the ballot paper and the likely outcomes. That will not happen as long as we indulge in sleights of hand.

Conclusions about absenteeism were drawn in the committee's report. It stated that the major factor accounting for the extraordinarily high level of absenteeism was the electorate's sense of not understanding the issues involved. This comes across very strongly in subjective accounts given by those who abstained and is confirmed by statistical analysis that assessed the impacts on abstention of a wide range of variables and identifies a sense of a lack of understanding as a key factor.

If this is true, it is the commission or the Government's fault because the time to find out if people were confused was before the election, not afterwards. There was enough debate and sufficient opportunities for people to find out what was going on. It was a failure, perhaps of all major parties. The Irish Times indicated that this legislation was introduced because the major parties failed to get across an understanding of what was involved in the Nice treaty. While I accept some responsibility as a member of a major party, the Government must accept primary responsibility. The Government, not just the commission, failed.

This legislation and the way in which it was introduced will not help to improve the relationship between people's perceptions of what is going on in these Houses, or indeed in Europe, and their daily lives. That is the saddest part of it and I fear the Leader of the House and the Minister of State do not realise this. I cannot understand why we were not given the opportunity to put the legislation back until next Tuesday to allow a full and free debate on the vital issues involved. They should have been treated with the weight they deserve.

I thank Senator Coogan for sharing his time. Normally, I would welcome the Minister of State to the House, but since he kept us waiting for half an hour and did not have the manners even to indicate that he had caused some inconvenience to Members, my welcome is muted.

It is the job of oppositions to be suspicious of governments. The way in which the Bill is being rushed through, not necessarily the Bill itself, gives off a bad smell. It is very unusual to seek to push legislation through both Houses on the same day. It usually happens only in the case of a major emergency which requires immediate attention, yet it is being steamrolled through both Houses today. Why? Is it a Bill of great intrinsic importance? It is not.

The Minister of State has hidden behind the shield of the all-party committee. The truth is he cherry-picked from its report. He took two items from it, leaving behind a whole range of other important items which do not form part of legislation. Why did this happen? We are right to be suspicious because we are not being told the full truth. We received notice only last night. Why did the Government choose to tag the Bill on at the tail end of the busiest week of the year? The Minister of State has brushed aside with contempt the arguments in favour of our offer to take the Bill on Tuesday or Wednesday to allow time. It was the old jackboot stuff we knew in the past which I thought had gone forever from these Houses.

The referendum is a central instrument of democracy. In the McKenna case the Supreme Court reprimanded all the political parties for taking the referendum for granted and the sense we were using it to our advantage against the interests of the wider population. From that point on, everything associated with referenda must take place with care, detailed consideration and with great reflection. It is out of small Bills like this and rushed Bills taken in late night sittings that great problems come. These matters come back to haunt governments, sometimes years later. They must then carry the responsibility for them.

We asked for the Bill to be deferred to allow us to consult our people over the weekend, read up on the documentation and literature and put forward amendments where necessary. By rushing it through today and taking all Stages in both Houses there is no chance of that. It was guillotined in the Dáil so there is no time for tabling or taking amendments. I see no point in getting into the farce in which we are now involved or helping the designs of the Government, whatever they may be. I am deeply suspicious, not just of the Bill but also of the way in which the Government has breached all normal procedures to get this legislation through without giving a single reason. I am sure we will find out soon enough. At least if the Minster of State gave us an honest reason for the rush, we could begin to believe the Government had a case.

Cuirim fáilte roimh an Aire anseo um thráthnóna chun an Bill seo a phlé. Bille simplí ach Bille an-thábhachtach atá ann. I welcome the Minister of State. Leaving aside the argument as to whether we should be debating the Bill today or next Tuesday, the legislation, though brief and simple, is nonetheless very important.

The Minister of State reminded us that we recently held a debate which clearly crystallised the difficulties being encountered because of the commission's interpretation of how referenda should be conducted on the basis of the McKenna judgment. I have no doubt that anybody reading the advertisements would conclude that the commission interpreted the judgment in a way which best met its requirements. Those of us involved in practical politics provided clear examples from recent referenda of attending polling stations and receiving the consistent message that people had difficulty understanding the content and purpose of the referendum. This was certainly the case with the Nice treaty, which is understandable given that the treaty was quite difficult to understand.

The commission should be commended for widely advertising the arguments for and against. However, having conscientiously read the pros and cons of the argument, even people who were informed about the issues would have had difficulty coming to a decision. The practical effect of the conduct of the campaign was to sow confusion among people about whether to vote "Yes" or "No".

We are very fortunate to have a Constitution which has stood the test of time for 64 years. On various social matter and other issues, it has been a cornerstone of how we conduct our democracy. One could not but take a certain amount of pride in the fact that, of all the European Union states, we were the only one which held a plebiscite, thus allowing the people to make a decision on the treaty. While we may not always like the outcome of these decisions, the supremacy of the people in a democracy is a great reminder that democracy is a tender flower which we serve and ours differs from the parliamentary supremacy of other jurisdictions.

We had a long debate the other evening on the twenty-fifth amendment of the Constitution, the referendum on which will be held, I presume, some time early in the new year. Regardless of one's views on its content, there is no better way to deal with the decision on the protection of human life and pregnancy than allowing the people to take it. I have a firm conviction that it is superior to legislation.

It was incumbent on this House in our debate to prompt and encourage the Government to take steps to address what was becoming an information deficit in this area in order to protect the structure and, as the Minister of State has rightly pointed out, primacy of the Constitution. The confusion not only caused a certain degree of apathy – it certainly contributed to a low turn- out – but was also very definitely a factor in the large number of spoilt votes which characterised the last referendum and previous referenda.

That will not happen in the future due to the measures contained in the Bill. An explanation of the arguments for and against will be given in future referenda. The Referendum Commission, as an independent body, will undertake this function in a fair and impartial way. That should lead to a more enlightened approach on the part of the electorate and will allow the media and various bodies, be they political parties, the Government or other voluntary organisations, to freely articulate their viewpoint. That will help the process and create a greater interest among the public which, in turn, will lead to a greater turnout in elections.

I had difficulty in the past, regardless of who was in government, with the manner in which referenda were controlled as a result of the McKenna judgment, which led to a sterilisation of debate. I hope under the new system we can debate the issues more freely because if a Government holds a referendum, it should be in a position to actively canvass support for it and if the Opposition opposes it, it should be in a position to do so also. The recommendations of the all-party committee on equal funding have not been accepted by the Minister at this stage, but as we gain more experience in the changed system, resources could be made available to those bodies which will then have the responsibility to make the arguments as they perceive them.

The Bill should lead to a significant improvement in the climate in which referenda are held in the future, something about which many were becoming concerned. Those who were closer to the issues or involved in politics expressed concern about the effects of the McKenna judgment. We must respect the decision of the Supreme Court. I am sure it was not its intention to curtail the position to the extent that there would be a deficit in terms of the people understanding and being informed of the issues.

I welcome the Bill and look forward to its implementation. I hope in the future this House will have an opportunity to discuss the practical benefits that will accrue from the enactment of the Bill.

We are dealing with two issues: first, the manner in which the Bill is passing through these Houses and, second, the nature of the Bill. I am fairly sure that but for the fact that there is a time imperative involved, there would be widespread support on all sides of the House for the legislation and that it would be passed in an non-contentious way. From my membership of the Oireachtas All-Party Committee on the Constitution, I am aware there was widespread consensus – it would be wrong to use the words "unanimous agreement" because the Minister has already referred to the majority and the minority view in the committee – that something should be done to deal with these issues and that the Referendum Bill before us accords with the general view of the committee.

I would not accept Senator Manning's remark about cherry-picking in terms of the Minister's quotations from the all-party committee's report. The references to the report in the Minister's contribution accurately reflect the tone of the report. In common with the Minister, I salute the work of the Referendum Commission and the way it has approached its job. In particular, it is appropriate that the Clerk of the Seanad should be thanked for her work in regard to these matters because it is evident that there is an increasingly onerous burden being put on the shoulders of the Clerk and the staff of the office. They are becoming increasingly involved in these matters, ethics and similar issues, a matter somebody in the Administration should examine with a view to relieving the burden placed upon the staff. I say that with reasonable forcefulness.

The other matter concerns what emerges from the commission. It is evident that the system whereby one picks up one's Sunday newspaper and sees a full page advertisement with closely spaced type and turgid prose, with an equality, not just of ideas, but of words for and against an argument, is a wholly unreal way of dealing with constitutional matters in the real world. We all realise that this is a consequence of the McKenna judgment, which stands.

It has been represented that what is being done here in some way subverts the McKenna judgment. It does not. There is one aspect of the report that would require a referendum, and that is to do with funding by equitable rather than equal means the campaigns in the referendum. I share the view, which the Minister said was the majority view in the committee, that it be equitable rather than equal. If one is to pursue that line of thought, inevitably it will lead to a constitutional amendment. It is the view of the majority, reported in the all-party committee report, that a referendum should not be proceeded with at this stage.

Several experts told the all-party committee about models in other countries, the way the Referendum Commission does its work and so on. I am strongly of the view that if we were to continue the system of the one page advertisement with the equal arguments, the turgid prose and the phrases more appropriate to the Law Library than the real world, the advertisements should be drafted by a practising journalist, perhaps Colm Toibin or Maeve Binchey. At least they would be written in a language that might engage the population, which might then read what was contained in the documents. Some progress has been made in that respect. Some of the television advertisements encouraging people to vote have been quite good by advertising standards in that they are professional and engaging, but if we are to continue in the normal way, these debates will become increasingly unreal on whatever issue, even very non-contentious ones.

Despite the intention of the McKenna judgment, it has led to an increasing amount of confusion among the electorate. Perhaps that is one of the reasons the turnouts have been low. I have always taken the view that low turnouts are not something about which one should become very concerned. I do not deny that it is important in a democracy to value and exercise the right to vote, but perhaps it is a measure of the stability of our democracy that the turnouts are low. I had the privilege of monitoring the first Palestinian election in the Gaza Strip, and Senator Lanigan will confirm that there were turnouts in excess of 95%. That was because it was such an important issue for the Palestinian people. If there were such divergences in our society – I am not saying they should be of the violent nature as that witnessed in Palestine – I am confident that election turnouts would be higher than they are currently.

Middle aged people who inhabit these Houses also have a tendency to lecture young people as to their responsibilities and in regard to the reason they do not vote. Recent generations have all voted in the same manner. It is a characteristic of young people that they do not vote and perhaps the reason the turnout was higher in the past was because people were not as mobile and many did not avail of third level education which would have resulted in them leaving home. However, it is correct that we should try to increase voter turnout.

I do not regard the Bill as contentious. There was widespread support for it in the Dáil and, other than the manner of its passage through the Houses, I doubt very much if it would attract a great deal of attention.

I welcome the Minister, whom we did not expect to see today because the Bill was not on the Order Paper. However, in addition, we were informed that we would have to deal with all Stages, although it had not even been passed in the Dáil. Naturally, the House is not impressed by the manner in which the Government is conducting business. It is totally unsatisfactory that a Bill which changes a Supreme Court decision that provided for a constitutional prerogative should be processed in such a manner. There has been a great deal of comment already regarding the way in which the legislation has been presented to us and it is not good enough. We have always objected to all Stages of a Bill being taken in one fell swoop without an opportunity for reflection for at least 24 hours. The manner in which the Bill has been proposed is totally unacceptable.

The legislation has been introduced as a result of the debacle surrounding the Nice treaty referendum. There was a low turnout and it was rejected. The reason was that neither the Minister's party nor the other Government party made the slightest effort to promote the referendum. There was no political involvement. The Taoiseach, with his much vaunted electoral machine, did not lift his little finger to distribute a leaflet or erect posters, other than standard party posters, in our constituency. He normally puts up personalised posters during such campaigns to indicate quite clearly where he stands on an issue.

As a result, Dublin Central had the second largest anti-Nice treaty vote. The Taoiseach indicated to the electorate that the referendum would succeed through a nod and a wink because he would not become embroiled or involved in the debate. The Government then blamed the Referendum Commission for not getting the message across. There is an always attempt to blame somebody else and find a scapegoat, but if the Minister looked at the beam in his own eyes, he would find it very close to him.

The legislation clears the way for the abortion referendum due in the new year. The Government does not intend to lose this time round. It was embarrassed by the result of the Nice treaty referendum as it thought it would be passed and did not get involved in promoting an issue for which there was no great enthusiasm among the electorate.

The issue was enlargement.

I campaigned in support of the Nice treaty in my constituency, but was the only politician to do so. I do not want to be spoken about in derogatory terms by the Government in regard to this matter. The Taoiseach represents the same constituency and did not lift a finger and now the Minister of State knows the reason the referendum did not succeed.

It is intended through this legislation to clear the way for the abortion referendum by eliminating any obstacles to ensure it is passed. I would like to tease out whether this is the correct approach. I am not happy with the way in which the Referendum Commission conducts its business, but I am equally unhappy with the proposal to virtually eliminate its role in order that it would merely provide a general explanation of the subject matter of a referendum, when it will be held and so on. That is not acceptable and a substantial provision should be put in place to address the matter. I am not sure it can be dealt with in this fashion.

I also suspect there is a considerable question over the constitutionality of the legislation. Can the role of the commission be diluted to the extent proposed? The Minister has gone from one extreme to the other with the commission changing its role from fulfilling its duty to the letter of the law in making the case for both sides in a referendum to providing only a general description of the referendum proposal. That is not in keeping with the spirit or the letter of the McKenna judgment. The legislation will be struck down if it is passed in its current form.

It is bad form for a Parliament to propose legislation relating to a constitutional matter without providing sufficient time in both Houses to process it. The main recommendations of the all-party committee established to examine refer enda have been left out in the cold. It was recommended that there should be State funding for political parties to promote the arguments in a referendum and for lobby groups to allow them to pursue a campaign. That recommendation should have been examined in terms of incorporating it in legislation.

The Bill has been cobbled together with the intention of knocking the Referendum Commission out of the loop and reducing its role in order that the Government can plough ahead with a massive propaganda campaign to promote the abortion referendum before the general election because it cannot afford to lose a referendum in the run-up to it. This is bad legislation which has been introduced through a negative use of procedures and I will vote against it.

I thank the Minister of State for coming to the House. He stated: "The motion, tabled by Senator Quinn, was discussed in the aftermath of the referendum campaign on local government recognition which was characterised by a lack lustre debate, a disappointing turnout and a large number – over 100,000 – of spoilt referendum ballot papers." The legislation is a compliment to the House and I thank the Minister of State and the Department for taking into account the strong views voiced by Senators from day to day. The legislation reflects the debate in the House on the issue earlier this year.

I cannot be associated with Senator Costello's strong remarks about the Taoiseach. Everyone throughout the country knows the Taoiseach fully supported the previous referendum.

Not in Dublin Central.

What about the Minister, Deputy de Valera?

The Taoiseach was conspicuous by his absence.

His electoral team is normally all over the place.

Senator Cassidy, without interruption.

One matter that is certain is that the hardest working Member of either House is the Taoiseach—

That is precisely why his absence was so conspicuous on this occasion.

—and he is the Member most in tune with his constituents, especially in the north inner city. Senator Costello knows this well and, if there was room at the inn, he would seek membership. I know he is very impressed by the Taoiseach and the great work he does in the north inner city.

As a person from a rural area and given that a Member from a rural area is present on the Opposition benches—

Given Senator Cassidy's contribution, I call a quorum.

Notice taken that 12 Members were not present; House counted and 12 Members being present,

I do not intend to delay the House much longer. I notice the Opposition benches are completely empty, but I will still continue my contribution. I have something in mind regarding rural people where the lower turnout at elections is concerned.

On a point of order, a quorum is not present and seated in the House. I call a quorum.

Notice taken that 12 Members were not present; House counted and 12 Members being present,

I reiterate that there is an absence of Opposition Members for this important debate. I would welcome it if someone from the Opposition was present for my contribution.

We all know the main reason for the low turnout at election time. Years ago election day was an event in Ireland, especially in rural Ireland. It is fair to say that the erection of posters and the activities which took place in every village and polling booth throughout the country, from Cork to Donegal to Clare to Westmeath, played a major part in creating the normal turnout of 65% to 80%.

The Minister of State is a rural Deputy from a part of the country accustomed to the participation of a large number of people in every parish in activities on behalf of political parties. His most senior departmental officials are in attendance and perhaps they could examine this in terms of getting people out to vote on election day. It is a complete non-event at present. One no longer knows where the polling booth is located. It appears the aim is to keep it a secret and all that needs to be done is to continue with the current practice and turnout will soon fall to 40% on election day. There is no atmosphere apart from people calling door to door. I understand even this is dying out because we are in the era of television canvassing.

Not everyone has the opportunity to participate in television debates and, unless one moves in certain circles, one certainly will not be invited to participate. Taking all this into account and all the matters which may arise with the 1,000 or more candidates who could stand at a general election, it is unfair for a select few who have television contacts and are television friendly to be given a considerable advantage in being returned or elected. Will the Minister of State ensure this is examined and addressed before the next general election?

Perhaps those of us who have been fortunate enough to be nominated after all these years, as Patrick Farrell, the poet, said, can have a level playing pitch and a fair opportunity to serve our country in the other House with all the experience we have gained in the Upper House. Perhaps one could enhance proceedings in the other House, if one was fortunate to be the choice of the people. I feel very strongly about this because the greatest honour any member of any team can be given is to be appointed captain. When an election is called, everyone should have an opportunity of being captain.

Is this a farewell speech?

I apologise to Senator Manning and Members if they feel I have been discourteous. I understand from his opening remarks that I was the cause of the House being delayed for 30 minutes. I was not aware of that until I arrived here. I was in the other House. I do not set the timetables. I did not intend to show any discourtesy.

I thank the Minister of State.

I have always admired the Senator's role in politics. I would not like him to think I did not respect the traditions and importance of the House.

The legislation is unique in that all the spokespersons of parties on the Oireachtas all-party committee which examined the Referendum Commission and published a report on it – Report No. 6 – were of one mind that the existing arrangements, whereby the commission is obliged to inform the public of arguments both for and against the proposal on which it is being asked to vote, were, in the words of the Fine Gael spokesperson in the other House, farcical. The comments and criticism on all sides in the other House and in the Seanad make it clear that the Oireachtas committee represents the views of Members in saying that this must be changed. It made proposals in this regard and they are contained in the Bill which has only one section of any substance. There cannot be a shorter Bill; it is the shortest one possible.

The Opposition parties have made the point that this is being rushed through and that they are suspicious that there must be some ulterior motive. I do not know why they would come to that conclusion. My party and I participated in the decision regarding the proposals in the Bill. I am not aware of any other motivation other than to implement the wishes of the Members who represented their fellow members on the Oireachtas Committee and to try to remove the ridiculous situation which obtained and which became so farcical, as was evident in the Nice ref erendum. That is the only motivation behind the proposal.

According to Government announcements, several referendums will be held. It is the intention to hold a referendum on the Nice treaty, on which a forum has been set up. A referendum is due arising out of the recent Department of Health and Children legislation. If action is not taken now we could have a situation whereby the existing arrangements regarding referendums would have to come into effect. The referendum commission would have to be established and there would have to be advertisements arguing for and against the position. The Government did not expect an outcry because there was agreement across the political spectrum in both Houses.

The Bill was published on Wednesday and all the spokespersons had the same amount of time to consider it. If one considers the number of times the issue has been discussed, it would be rather farfetched to claim the proposal has come out of the blue and that it is being rushed through. The subject matter of referendums was considerably reported on in the 1996 report of the review group on the Constitution, in the All-Party Oireachtas Committee on the Constitution's first progress report published in 1997 and in the sixth progress report published last month. This House debated the Referendum Act in 1998 and Senator Quinn tabled a special motion in June 1999 to which I referred in my opening remarks. The Seanad highlighted in those debates the need for this change which the Government is facilitating.

Senator Coogan referred to the new function being assigned to the referendum commission. Voting is the responsibility of every individual. If a Government Department became involved in placing notices asking the electorate to vote there could be claims that the Minister in charge was trying to influence voters to vote for his or her party. The commission could not be accused of being biased. It is an independent group and its independence has been accepted by all parties. It has acted very honourably and respectfully which has been referred to in all the discussions. The manner in which it undertook its duties given to it by this House has been commented on and complimented. In doing so it has performed a very important national duty. It is important that an independent group should have that responsibility which is one of the functions assigned to the commission. It can use the funds made available to it to help to disseminate the information and to give a general explanation but it will not be asked to put arguments for and against the proposal. It will be asked to make a general statement as outlined in the original 1998 Act.

Senator Costello made some unusual references. He said we were changing the Supreme Court decision and diluting the role of the referendum commission which would be unconstitutional and that it would be challenged. He should read the McKenna judgment again because its main point is that the Government cannot expend public money advocating one side of an argument prior to a referendum. The Government will provide funding to the referendum commission to issue a general statement on the proposal. This is in line with the reference in the judgment that the electorate should be informed on the subject matter of the referendum. The political debate on the merits or otherwise of the referendum proposal will be a matter for the Government, political parties, politicians and groups interested in the referendum proposal.

As I said in my opening remarks, referendums are an exercise in direct democracy. They are important and the question as to how we conduct them and inform the electorate about them is crucial to their effectiveness and the operation of democracy. To a certain extent, we are working in different times. Political participation and voter turnout generally have been declining and referendums inevitably have not escaped that general trend. Reference was made to that fact in the contributions of Senators. It seems the electorate are less willing to inform themselves about proposals put before them. This, in turn, puts an onus on politicians to deliver the message and to examine, change, improve and re-examine, if necessary, how that same electorate are informed and motivated to register their opinion in referendums.

This is a short Bill which seeks to correct what is generally accepted to be a weakness in the current arrangement by removing the function of a referendum commission to present arguments for and against a proposal. However, it also seeks to develop the commission's responsibilities by giving it the new remit to which I have referred as a promoter of participation. The Bill is not about rowing back on the McKenna judgment. That judgment is not a restraining factor on any party, Government or interest group engaging in robust campaigning in a referendum. It does, however, prevent the use of Government funds to promote one side of a referendum argument, which the Bill fully respects.

While the Bill implements two of the recommendations in the all-party Oireachtas committee report, it does not provide for a scheme to dispense funds among the pro and anti sides of a referendum, as recommended in the report. I believe the House will accept that the introduction of such a scheme would require detailed examination of the statutory criteria for the allocation of the fund, who the recipients will be, the conditions which should be attached to the funding and arrange for the auditing of expenditure. If the Government brought a Bill to this House today which proposed the allocation of funding for referendums, Senators would have a legitimate complaint that it would need long and careful consideration. There will be time for such a debate if it is decided to try to find a way around the situation. Finding a way around this while meeting the constitutional requirements in the McKenna judgment and being seen by all sides to be fair is certainly a big challenge.

The Bill as presented is necessary to eliminate the ridiculous and farcical situation which obtains under the current legislation. Any scheme will, of course, have to comply with the legal judgments which have been made. I commend the Bill to the House.

Question put and agreed.

When is it proposed to take Committee Stage?


Agreed to take remaining Stages today.