I move: "That the Bill be now read a Second Time." This is the third substantive Bill relating to referenda since the enactment of the Constitution. The Referendum Act, 1942, set out the basic law relating to the conduct of referenda, while the Referendum Act, 1994, consolidated and amended the law up to 1994. This Bill is a result of greater political awareness by the electorate and the need to provide information in relation to matters dealing with constitutional amendments.
We have much experience of referenda. In all there have been 20 since 1937 when a plebiscite was held on the Constitution. Of those, 15 were approved by the people and five were rejected. That demonstrates the people are very discerning on proposals to amend their Constitution. That is a welcome indication of the public interest in the most fundamental legal document of the State.
As we move towards a new millennium and in a period of rapid change when existing practices and procedures are under constant review, it is timely to consider how the electorate can be more involved and informed on important political issues. There is hardly a more important issue than amending the Constitution. We must start at the so-called "grass roots" and work upwards at central and local levels. However, in the case of the proposed referendum on the Amsterdam Treaty, time dictates that we must act quickly to inform the public about the treaty which is a difficult document to explain. The provisions of the Bill will achieve this for the forthcoming referendum but also for all future referenda. It will become part of the permanent referendum law.
Despite all the technology and multimedia facilities available today, it does not seem that the public are well informed on the contents of the Amsterdam Treaty. A recent public affairs television programme interviewed a sample of individuals who were asked what they knew about the Amsterdam Treaty. Only one respondent seemed to know about it, even though the treaty is the product of much work at EU level and its negotiation has been covered in the media for a few years. The treaty results from the Intergovernmental Conference which opened in Rome in March 1996 under the Italian Presidency and was continued further during the Irish Presidency when the first draft for a new treaty was submitted to the Dublin European Council in December 1996. The treaty was agreed at the Amsterdam European Council in June 1997 and was signed in Amsterdam by member states last October. There have been frequent references to it in the media over recent months, but the public mind has not been focused on it. That is the information gap which we must try to fill.
In recent years most of the political parties represented in this House have been in favour of proposals put before the people in referenda. That is a good sign, but it has the downside that public debate has suffered. My predecessor, Deputy Howlin, and I give him credit for it, commenced the process of providing direct information on the advantages and disadvantages of a proposal in a referendum. To date we have had three ad hoc commissions on referendum information. Those commissions had responsibility for preparing statements with arguments for and against proposals for the divorce referendum in 1995, the bail referendum in 1996 and the Cabinet confidentiality referendum in 1997. The commissions engaged two senior counsel, who were nominated by the chairman of the Bar Council to set out both sets of arguments. A leaflet was produced on the divorce referendum and delivered by An Post to each household. Because of time constraints, advertisements in respect of the other two referenda were placed in the national and local newspapers. Criticism was expressed after the most recent referendum that the advertisements were not the best method of communicating simple factual information to the electorate. This, some claim, was the reason for the high incidence of spoiled votes in that referendum.
Notwithstanding the criticism, the ad hoc commissions were a step forward in attempting to bridge the gap in the provision of information. I pay tribute to the people involved, especially the members of the ad hoc commission and their staff who, at short notice, had to carry out a difficult task. However, it is time to advance the matter further.
When I was in Opposition I introduced a Private Members' Bill in June 1996 to provide for the establishment of an independent referendum commission having the function of preparing and presenting to the public information in an objective, impartial and informative manner in order to assist the process of enabling the electorate to make an informed decision at constitutional and ordinary referendums. I am glad to have this opportunity to give expression to the main function contained in my Private Members' Bill in the Bill before the House.
This matter was also considered by the All Party Committee on the Constitution following a recommendation in the Constitution Review Group report that:
There ought not be a constitutional barrier to the public funding of a referendum campaign provided that the manner of equitable allotment of such funding is entrusted to an independent body such as the proposed constituency commission. The total sum to be allotted should be subject to legislative regulation. Article 47.4 should be amended accordingly. Such a constitutional safeguard meets the principal objection to the old funding arrangements identified in the McKenna case by ensuring the Government does not spend public money in a self-interested and unregulated fashion in favour of one side only, thereby distorting the political process.
The All-Party Committee on the Constitution in its first progress report last April concluded that:
The Committee agrees with the Constitution Review Group that an independent body should be established to regulate the funding and conduct of referenda. It feels, however, that it would be tidier to provide in the Constitution for a commission to carry out not just those functions but also those undertaken by the Constituency Boundary Commission, the Public Service Ethics Committee under the Ethics in Public Office Act, 1995, and any commission which might be proposed to regulate election funding.
I am aware that the all-party committee is currently reconsidering the matter and I would welcome its views. However, in view of the short time available before the referendum on the Amsterdam Treaty, I must proceed with the Bill and I will consider any recommendations the committee may make for future legislation.
The Constitution Review Group recommended a constitutional amendment to enable a commission to be established which would allocate funds to political parties and interest groups to ensure a thorough sustained debate on a referendum proposal. That option has yet to be considered. I am not convinced and I am not aware of any evidence available that providing funds directly to political parties and interested groups would provide simple factual information to the electorate. We would probably see much more disjointed information about different facets of a proposal which might leave the electorate even more confused. Funds would have to be given to all groups with a bona fide interest in a referendum and unless the overall amount of funds available was very large, the impact each group could make would be minimal. It would be extremely difficult to set down criteria for approving funding and for public accountability of its use.
For instance, take the hypothetical example of a referendum where it is clear that 90 per cent of public representatives and the public are in favour of the proposal. If we assume that the Government decides to allocate £1 million to be distributed to political parties and interested groups, how is the allocation to be divided —pro rata to the size and representation of parties or groups or 50 per cent to both sides? Either of these approaches is open to challenge on the grounds of unfairness.
I am not satisfied that the taxpayer would be in favour of the Government issuing large sums of its money, together with the extra administrative costs of administering a scheme, to political parties and interested groups to try to persuade them to vote either "for" or "against". The potential for the wastage of public funds would be enormous, especially if the electorate is bombarded with conflicting, and perhaps inaccurate, propaganda paid for with its own money. The Government considers the Bill will provide a better option for supplying information to the electorate in a manner that is fair to all the interests concerned.
An amendment to the Constitution to provide for the commission envisaged by the all-party committee may be unnecessary but a decision on that point does not arise now. I am not saying that a single commission should not be set up which would encompass the present separate commissions — the Public Offices Commission, Constituency Commission and, when this Bill is enacted, the Referendum Commission. Much could be said in support of such a proposal and my colleague, the Minister for Finance, is drawing up proposals which could include such a single body, rather than several individual commissions.
The purpose of the Bill is to establish an independent statutory Referendum Commission to prepare and disseminate information on the subject matter of a referendum and to foster and promote public debate in a manner that is fair to all interests concerned at a referendum. It will also consider and rule on applications from bodies for a declaration that they be approved bodies, whose sole function will be to appoint agents at a referendum.
Section 1 provides for interpretation of some definitions. It is not exhaustive as the Bill will be read with the Referendum Act, 1994. Section 2 provides for the establishment, by order of the Minister, of an independent Referendum Commission not earlier than the date on which the Bill to amend the Constitution is initiated in Dáil Éireann or, in the case of an ordinary referendum, not later than the date of the order appointing polling day at such a referendum. Where the commission is established before the passing of a Bill to amend the Constitution by both Houses of the Oireachtas, it will be prohibited from publishing any statements or incurring any expenditure without the consent of the Minister for Finance before the passing of the Bill.
The section provides that the commission will be independent in the performance of its functions and, subject to the provisions of the Bill, will regulate its own procedure. This is an important point especially when read with the specific directive in the Bill that the commission carry out its functions in a manner that is fair to all interests concerned. This will allay any fears on the part of public representatives, interest groups and individuals that the funding to be provided by the Government may not be spent in a fair manner to both sides of the debate at a referendum.
The section also provides that a member of the commission shall not advocate or promote a particular result at the referendum in respect of which the commission has been established. While it may not be necessary to provide for this matter, given the membership of the commission, I consider it important to demonstrate explicitly that the commission will be neutral in its attitude to the proposal in the referendum.
Because of the time constraints and the complexities of the Amsterdam Treaty, the Government has approved the setting up of the commission on a non-statutory basis on this occasion pending enactment of the Bill. This will assist the commission in setting about its task of preparing a work programme to carry out its functions. I have written to the five members of the proposed commission and I expect the secretariat to contact them this week to arrange their first meeting. I am pleased to inform the House that the former Chief Justice, Mr. Thomas Finlay, has agreed to be chairperson of the first commission.
The section also sets out the membership of the commission. The members will be a former judge of the Supreme Court or a serving or former judge of the High Court nominated by the Chief Justice, who will be chairperson, the Comptroller and Auditor General, the Ombudsman, the Clerk of the Dáil and the Clerk of the Seanad. The section makes provision for substitution where there is a vacancy in the office of one of the ordinary members of the commission and where the chairman or another member of the commission is temporarily unable to act. A member of the commission, who ceases to hold the relevant office, such as on reaching retiring age, will normally continue as a member until the commission reports.
The Minister for Finance is required to make available to the commission such services, including staff, as the commission may require. Consultations are taking place between the Office of the Ombudsman and the Department of Finance about the provision of extra staff. As the commission will be dealing with submissions from a variety of sources relating to many different aspects of the proposal in the referendum, the section provides that documents of the commission and of its members and reports of and submissions to the commission will be privileged. Section 3 sets out the principal functions of the commission. It provides that it will prepare statements containing a general explanation of the subject matter of the proposal, the subject of the referendum. It will also prepare a statement or statements of the arguments for and against the proposal having regard to any statements received under section 6.
The commission will be required to publish and disseminate these statements to the electorate. I am leaving it open to it to decide the best way of communicating with the electorate. It can use television, radio and other electronic media in addition to printed matter in brochures, leaflets, pamphlets and posters. It will also be a function of the commission to foster, promote and facilitate public debate on the proposal, the subject of a referendum. In carrying out these functions the commission will be required to be fair to all interests concerned. This is the essential part of its role and is designed to meet the point in the McKenna judgments on the use of public money in a fair and even handed manner.
Section 4 provides that the commission may engage such consultants and advisers as it considers necessary for the performance of its functions. It will be a matter for it to engage professionals such as public relations experts, publicists, advertising agencies and other professional services to ensure it gets its messages across to the electorate in the most useful way. This is important to ensure that the electorate is fully informed and funds are not wasted on ineffective publicity.
Section 5 provides that the prohibition in the Broadcasting Authority Act, 1960, and the Radio and Television Act, 1988, on the acceptance of political advertisements will not apply to advertisements to be broadcast at the request of the commission in relation to its principal functions at a referendum. The importance of the commission's work, which is governed by the concept of fairness to all interests concerned, warrants the departure from the prohibition on political advertisements for the purposes of conveying balanced information on a referendum proposal to the electorate.
Under the section the commission may, after consultation with the RTÉ authority or the Independent Radio and Television Commission and having considered any proposals on their broadcasting plans in connection with a referendum, request the Minister for Arts, Heritage, Gaeltacht and the Islands, to direct the RTÉ authority or the Independent Radio and Television Commission to arrange to make broadcasting time available to facilitate the commission in the performance of its functions.
I would see this power, to request the Minister to direct the two authorities to provide broadcasting time to the commission, being used only in very exceptional circumstances. The commission will be obliged to consult both RTÉ and the Independent Radio and Television Commission and to consider the programmes and coverage relating to a referendum proposed by stations under the aegis of both bodies before exercising this power. I would expect to see a commonsense approach by the three bodies, especially as the three of them are required to be fair to all interests concerned in carrying out their respective functions. Nevertheless, the commission must be given the necessary powers to carry out its functions. Television and radio are probably the most used and effective means of communicating today. I consider that the commission must have the option of using these methods of communicating information to the electorate, so that the latter will be able to make an informed decision on polling day.
Section 6 provides that the public can make submissions to the commission relating to a proposal, the subject of a referendum. The commission will have regard to the submissions received when preparing statements under section 3. That is not to say every submission will have to be reproduced by the commission. It will be a matter for the commission to decide the contents of its statements provided they are fair to all interests concerned.
Section 7 provides that a body may apply to the Referendum Commission for a declaration that it is an approved body for the purposes of the referendum. The only function of an approved body under the Bill will be to appoint agents at various processes at the referendum. The right of such bodies to appoint agents will be in addition to the right currently conferred on Members of both Houses of the Oireachtas to appoint agents. This provision is included to take account of a High Court judgment in 1997 which held that the Minister has jurisdiction to rule on requests made to him by persons or groups to appoint such agents at a referendum.
A body will have to apply for a declaration at each referendum at which it wishes to appoint agents. The requirements are kept to a minimum. The body must have an interest in the referendum, it or a branch of the body must be established in the State, have at least 500 members, have a constitution, memorandum of association or other such document approved by the members, and a name which is not identical or does not closely resemble the name of a political party registered in the Register of Political Parties. The commission must be satisfied the applicant body has a bona fide interest in the subject matter of the referendum.
While some may criticise these minimal requirements, I stress that the role of an agent at an election or referendum is a serious and important one. It is a task which must be done correctly and is not a matter to be taken lightly.
I will give some background to the appointment of agents and what the agents can do at a referendum. Section 26(1) of the Referendum Act, 1994, provides that a Member of the Dáil for the constituency and any Member of the Seanad may appoint agents at a referendum to be present at the issue of ballot papers to postal voters, the opening of postal ballot boxes and the counting of votes. Any Member of the Dáil for the constituency and any Member of the Seanad may appoint one person to be present in each polling station at a referendum for the purposes of assisting in the detection of personation.
In November 1995, prior to the referendum on divorce, an anti-divorce activist wrote to the then Minister requesting him to redress what she referred to as a deficiency in the Referendum Act, 1994. The person claimed that groups opposing the then proposed constitutional amendment were excluded from appointing personation agents and agents to attend the count without obtaining an appointment from Members of the Oireachtas. The person indicated that most if not all the parties in the Oireachtas supported the proposed amendment and requested the then Minister to make provision by way of emergency regulations to allow anti-amendment groups to appoint such agents. As that request was not acceded to, legal action was initiated.
The High Court, in March 1997, granted the plaintiff a declaratory relief and made a declaration that the Minister has jurisdiction to consider whether there exists circumstances of special difficulty arising from the operation of the power of appointment contained in the section. Should he decide circumstances of special difficulty arise, he may modify section 26 by providing by ministerial Order that the power of appointment should be exercised by persons or groups in addition to the persons mentioned in that section. The powers available to the Minister under section 164 of the Electoral Act, 1992, were intended to deal with unforeseen difficulties or emergencies. It has been used to deal with problems with the delivery and or return of postal voting documents during a postal strike, robbery of postal deliveries and the continuation of a poll on a second day on islands where confusion led island electors to believe that polling stations were not open on the original day appointed. Examples of other situations in which it was envisaged that the provision could possibly be used were a prolonged widespread evening power cut on polling day during the winter or extreme weather conditions, for example, a severe blizzard.
The practical arrangements to be put in place at a referendum where there is no political party in the Dáil opposed to a constitutional amendment must take account of any group opposed to the amendment. The Minister could, by difficulty order, determine which groups could appoint agents or he could designate that this function should be performed by the referendum returning officer or each local returning officer. It would not be the most satisfactory arrangement that the Minister adjudicate on who should have authority to appoint agents at a referendum as refusal by the Minister of a particular person or group to appoint agents would be likely to lead to allegations of bias or conflict of interests on the part of the Minister and could result in a referendum petition. Assigning the duty to the referendum returning officer or local returning officer to determine which bodies should be entitled to appoint agents is not considered appropriate as it could embroil impartial election officials in charges of partiality.
The section 164 order procedure is not an appropriate mechanism for authorising bodies to appoint agents. Instead, section 7 provides that interest groups which are declared to be approved bodies by the referendum commission will be entitled to appoint agents. This will avoid any allegations of unfairness or partiality.
Under section 8 a commission is required, as soon as possible after its establishment, to publish a notice in at least two national newspapers inviting submissions in relation to the proposal the subject of the referendum. The public notice must also refer to the procedure for declaration of approved bodies for the referendum. It must also specify the latest date for receipt of submissions and for applications to the commission for declarations as approved bodies in respect of the referendum. This public notice will alert individuals, groups or political parties of the right to make a submission which must be considered by the commission in preparing its statements.
The commission may require further information or documents from a body which applies for declaration as an approved body under section 9. It may require the authorised officer of a body who furnishes such further information to make a statutory declaration in support of the information so supplied. The section provides that it will be an offence to knowingly provide false information following a request for further information from the commission. Provision is also included in this section to enable a commission to revoke a declaration made by it in relation to a body where it is satisfied that false information has been furnished to it.
The commission will be required by section 10 to notify the referendum returning officer of details of each body declared to be an approved body under the Bill or where any declaration is revoked by it. The referendum returning officer is required to notify such details to each local returning officer. Each approved body at a referendum will be empowered under section 11 to appoint agents to attend at the issue and opening of postal voters' ballot papers, at polling stations and at the counting of votes. Members of both Houses of the Oireachtas who currently have the right to appoint such agents will continue to have this right. The conditions relating to the appointment of agents in relation to Oireachtas Members as set out in the Referendum Act, 1994, will apply to agents appointed under this section.
Section 12 provides for the amendment of the Referendum Act, 1994, to provide that the result of a referendum may not be questioned on the grounds of non-compliance by the referendum commission with any provision of the Bill or any mistake made by the commission if it appears to the court that the general principles laid down in the Bill were complied with and the non-compliance or mistake did not materially affect the result of the referendum.
Under section 13 the expenses of the referendum commission will be paid out of moneys provided by the Oireachtas from the Vote of the Minister who initiates the relevant Bill containing the proposal, the subject of the referendum. The Government has approved funding of £2.5 million for the commission's promotional work in the Amsterdam Treaty referendum.
The commission will be required under section 14 to furnish a report to the Minister as soon as practicable but not later than six months after the completion of its functions at a referendum. The Minister is required to cause a copy of the report of the commission to be laid before each House of the Oireachtas. Where the Minister so directs, the report of the commission must include information on any particular aspect of the commission's functions as may be specified by the Minister. A commission will automatically be dissolved one month after presentation of its report.
Section 15 provides for the amendment of the Referendum Act, 1994, consequential on the extension of the right to appoint agents at a referendum to approved bodies. Section 16 provides that where an offence under the Bill, which has been committed by a corporate body, is proved to have been committed with the knowledge of a director or other employee of the body, that person as well as the body corporate shall be guilty of an offence and shall be liable to be proceeded against. Proceedings for an offence under the Bill shall not be instituted without the consent of the Director of Public Prosecutions. Section 17 is a standard provision relating to the Short Title and construction of the Bill with existing Referendum Acts.
This is short but important legislation. It will put in place a mechanism to provide information to the electorate in a way that is fair to all interests concerned. The forthcoming referendum on the Amsterdam Treaty is an important national event. The commission will have a difficult task on this occasion in carrying out its functions due to the complexities of the treaty. The commission can only provide information; it cannot make the electorate read or consider it. The commission cannot force the electorate to vote. I hope the information provided will increase public awareness which will result in the electorate being in a position to make an informed decision and express that decision by coming out on polling day to cast its vote. However, politicians of all parties also share a responsibility to generate public interest so that we will have a large turnout on polling day.
I commend the Bill to the House.