Seanad Éireann díospóireacht -
Wednesday, 16 May 1934

Vol. 18 No. 19

Public Business. - Constitution (Amendment No. 25) Bill, 1934—Second Stage.

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

Mr. Douglas

This Bill, when introduced into the House, was supported by Senators Brown and O'Farrell. I had a letter from Senator O'Farrell stating that, owing to an urgent appointment in connection with his business with the Northern Government, he could not be here to-day as, otherwise, I had hoped he would have seconded the motion for the Second Reading of the Bill. The object of this Bill is to re-establish the original position with regard to constitutional amendments during the remaining portion of the period during which such amendments can be made by way of ordinary legislation.

The Constitution as passed by the Dáil, sitting as a Constituent Assembly, provided that after a period of eight years all amendments to the Constitution must be submitted to a referendum of the people. This period of eight years was extended to 16 years by the Oireachtas, though personally I consider it exceedingly doubtful if there was a constitutional right to do so without a referendum, and I was surprised at the time that the Opposition did not find some way of challenging it in the courts.

It is, however, important to remember that at the time when the Constituent Assembly fixed this period of eight years, ordinary legislation could be submitted to a referendum at the request of one-twentieth of the electorate; that is if it was first delayed by two-fifths of the Dáil, or by a majority of the Seanad. This Bill practically re-establishes this position, the only difference being that for convenience 75,000 voters are substituted for one-twentieth of the electorate, and the provisions of Article 50 are adopted as to the majority which is required if such a referendum is held.

The referendum, for ordinary legislation, was abolished by the Oireachtas, but the provision for a referendum on constitutional amendments after the period of 16 years was not altered. The great mistake which was made at the time was that no provision was made to provide for any kind of referendum during the remainder of the period of 16 years for amendments to the Constitution which did not meet with general acceptance.

I was a member of the Constitution Drafting Committee, and at that time I was in favour of a referendum for all legislation. Since then I have changed my mind, and I think there are very strong arguments against the referendum for ordinary legislation. I find, from all my reading, that informed constitutional opinion in Europe has steadily grown against a general referendum, mainly because it has proved obstructive and tends to weaken Cabinet responsibility. Probably Switzerland is the only country where the general referendum can be said to work well.

This Bill, however, does not seek to re-establish a referendum for all Bills, but only for constitutional amendments, and I am of the opinion that few, if any, effective arguments against a referendum for general legislation are applicable when it is applied only to amendments to the Constitution. I find that this view of mine is supported by many constitutional authorities and, what is much more important, supported by the practice in a very large number of democratically governed countries.

Democratic government means government for the people in accordance with the people's wishes, but it is not practicable for the people directly to govern themselves, and the function of a Constitution is to provide the institutions through which and the method by which they shall be governed. Every Constitution gives wide powers to Parliament, but all democratic Constitutions also provide restrictions on the exercise of those powers. The people have, therefore, a very special and a very direct interest in the Constitution of their country, and I think it is a sound principle that they should have a right to be directly consulted when any important constitutional changes are proposed. This is particularly the case when there is a strong difference of opinion amongst the elected representatives as to the wisdom of the changes which are proposed, and it is a situation of this kind which this Bill seeks to meet.

When the people elect a new Parliament, they elect members to act for them within the limits of the Constitution. In a recent debate in the Dáil, one member, I think it was a Minister, declared that the Dáil was a sovereign Assembly. I think he was fundamentally wrong. Under our Constitution it is the people who are sovereign and the Oireachtas are their servants This is made quite clear in the Constitution of the Free State. Article 2 provides that

All powers of government and all authority, legislative, executive and judicial, are derived from the people and the same shall be exercised in Saorstát Eireann through the organisations established by or under and in accord with this Constitution.

Article 12 gives the Oireachtas sole and exclusive power of making laws, but this does not alter or lessen the fact that the powers of the Oireachtas, as an organisation established under the Constitution, are derived from the people. Whether we like it or not, the people are the rulers in this State and they are entitled to say by what method and in what way they are to be governed. A Constitution which can be amended by ordinary law by a small majority without any reference to the people ceases for all practical purposes to be a Constitution and its value as a safeguard of the liberties and rights of the people is almost nil.

It may be argued that our Constitution is in an experimental stage and that during such a time it is a mistake to make it too difficult to amend. I agree but suggest that it is even more dangerous to make it too easy to amend. I do not believe there is any Government of any Party which could be trusted with a free hand with the Constitution. I am not accusing any of our Parties of deliberate dishonesty, but unexpected difficulties arise and if the Constitution gets in the way of the Party programme, then there is little hope for the Constitution if it can be amended by ordinary law. A Constitution which can be too easily altered is liable to be altered first from one point of view and then, under another Government, from a quite different angle, with the quite possible result that very little will be left. It is always easy to take away from a Constitution sections which prove awkward at the time for the Government, but it takes time and constructive thought to provide suitable alternatives.

This Bill provides a middle course between rigidity and too facile amendment. The essential principle of the Bill is that where two-fifths of the Dáil object to an amendment to the Constitution, they will be able to give the people a chance of deciding the issue. While we remain a bicameral legislature, it is reasonable to give a similar right to the Second Chamber, but the essential provision in this Bill is that where a vital constitutional amendment cannot command the support of three-fifths of the Dáil, it should not be passed until it has been referred to the people. I do not think there is any danger of this provision being abused or applied to minor amendments. No Party will go to the trouble and expense of a referendum except on a really important change in the Constitution.

The principal reason for introducing this Bill is to give this House an opportunity of making it clear that it stands for democratic government and that it recognises the people ought to control the Constitution which was intended to be the fundamental law of this State. The referendum is by no means the only way of submitting constitutional amendments to the people, and I am not sure that in the long run we will not devise a better way in this country. Personally, I would prefer, with modification to suit the Saorstat, the method adopted in Denmark, Belgium or in Spain, but I recognise that the Government would not be likely to agree to such a proposal at the present time. But whatever is ultimately decided upon as the best method, the principle remains that the people have a right to be consulted before important amendments to the Constitution become law.

I think it may interest the House to know how constitutional amendments are dealt with in other countries in Europe. I do not claim to be familiar with all European Constitutions, but I have studied the subject, and with the exception of the States where dictatorship has been established, I do not know of any country except England where constitutional changes can be made as easily as ordinary legislation. England is not a proper comparison as it has no written Constitution, and it maintains a hereditary Second Chamber which provides a strong conservative block against constitutional change. In deference to the Government, I will begin with those countries which have only one House of Parliament. The most important of these is Spain, which established a single Chamber Parliament after the Revolution. Considerable care was taken to prevent hasty constitutional change—the principal provision being that the Cortes is automatically dissolved if it passes an amendment to the Constitution, which it cannot do without a two-thirds majority, and the amendment does not become law unless passed by the newly-elected Cortes, which acts as a Constituent Assembly.

In Finland—another single Chamber Parliament—one-third of the Chamber can cause legislative proposals to be deferred until after the next elections, and even then certain fixed majorities are necessary before constitutional amendments can become law. In Esthonia, one-third of the Chamber can submit any law, constitutional or otherwise, to a referendum and in Lithuania, a three-fifths majority is required for constitutional amendments which are then submitted to a referendum if demanded by the President. Bulgaria does not permit the ordinary Parliament to alter the Constitution. When revision of the Constitution is proposed, a special National Assembly is elected, twice the size of the ordinary Parliament. Even in Turkey, which is very nearly a dictatorship, and which has only one Chamber, two-thirds of the Assembly must vote for an amendment to the Constitution before it can become law. If we turn to the bicameral States of Europe, we find that same desire to prevent alterations in the Constitution without giving the people a chance of expressing their opinion. It is not perhaps surprising to find that in Switzerland a referendum on all constitutional amendments is obligatory, but it is particularly interesting to find that it is also obligatory in Austria, in Denmark and in Australia. In Australia, a majority of the States as well as a majority of the whole electorate must agree, and in Denmark if both Houses agree to a constitutional amendment, they are both dissolved, and if the new Parliament passes the measure, it is then submitted to a referendum.

In Portugal, the Constitution may be revised every ten years by a special Constituent Assembly. If two-thirds of the Assembly agree, it may be revised five years after the previous revision. In Norway, a vote of two-thirds of the Storthing is required, and amendments must be introduced during the first or second year after an election. They are not, however, finally passed until after another election has taken place. In Belgium, the passing of a constitutional amendment causes the dissolution of both Houses, and a two-thirds majority in both the newly-elected Chambers is necessary before it can become law. The position in Holland is, I believe, identical with Belgium. In Rumania, the position is very similar. Both Houses meet together and a two-thirds majority is required. They are both then dissolved and a two-thirds vote is necessary in the newly-elected Chambers. In Poland an amendment to the Constitution can be passed if supported by a two-thirds majority in both Houses, but there is no provision for a referendum.

In France, both Houses meet together to consider constitutional changes, and an actual majority of the total membership of both Houses is required. I have not been able to ascertain the exact position in Greece, but I know that all legislation is examined by Commissions before being discussed by Parliament, which prevents hasty action. The present position in Italy, Germany and Soviet Russia is not clear, but I think we may safely assume that there is no referendum in any of these countries. It may be noted, however, that the Weimar Constitution in Germany, which has been superseded, though not finally repealed, provided for a two-thirds majority in both Houses as well as for a possible referendum to the people.

I have given details because they show clearly that practically all democratic countries in Europe are very jealous of their Constitutions, and do not allow them to be altered by bare majorities. We are not, of course, obliged to follow their example, but a careful study of constitutional law in Europe should make our legislators hesitate before allowing the present position in this country to continue.

I have purposely not based my arguments for this Bill on the situation which will arise if and when this House is abolished. That can be dealt with when the Bill reaches us. I believe that there is a necessity for a Bill of this kind even if this country remains a bicameral State. It is, however, obvious that if there is only one House and it can pass constitutional amendments by a bare majority, the case for allowing two-fifths of that House to refer such amendments to the people is very strong indeed. This Bill is not intended to be, and ought not to be a Party measure. A Party in power is not so likely to feel the need of it as one in opposition, as Parties are supposed to believe in the almost infallibility of the Government they support. I would suggest, however, to the supporters of the Government in this House that their Party may not always be in power and would point out to them that when in opposition they supported the principle of this Bill. The referendum has always been supported by the Labour Party and I feel confident it will still have their support. There may be differences of opinion as to the details, which can be discussed in Committee, but I think the principle of the Bill should receive support from all sides of the House.

I would like to make a special appeal to the members of the Fine Gael Party to support this Bill. I know that many of them, like myself, are very sceptical of a referendum as a workable proposition for ordinary legislation. I know that the Cumann na nGaedheal Party when in power was responsible for the deletion of Article 47 from the Constitution, and that they made the mistake of not providing for constitutional amendments during the remainder of the 16 years period. As I have stated before in this House, I do not consider political consistency to be a virtue of itself. Senators or Deputies who cannot profit by experience are not fit to be legislators, but if they are worried about a possible charge of inconsistency, I would point out to them that the late Government did not attempt to delete the referendum from Article 50, which deals with alterations in the Constitution.

If this Bill becomes law, it could of course be applied to the Bill which proposes to abolish this House, if it was thought desirable to do so. I do not imagine that anyone in this House will object on these grounds. During the debate on the Constitution (Amendment No. 10) Bill in the Dáil President de Valera, who was at the time Leader of the Opposition, referred to certain powers of this House, which he did not approve of. He stated:

"that if the people want to response such authority in the Second House, it is the right of the people to insist that that authority shall not be taken from them, until they themselves are consulted in the matter."

I think that is a reasonable point of view. It is just as true to-day. I suggest that it is not only true of the powers of the Seanad, but it applies to every important alteration of the Constitution. I would like, however, to point out that this is not a Bill solely for the purpose of referring the question of the abolition of the Seanad to the people. It applies to all constitutional amendments, and it will operate, even if the Seanad is abolished, if two-thirds of the Dáil think the people should be consulted before the Constitution is altered. I move that the Bill be now read a Second Time.

Mr. Brown

I second the motion. I do so in the absence of Senator O'Farrell, which I very much regret. This question of the referendum has not received from the Oireachtas sufficient consideration. Personally, I am ashamed to confess that when the abolition of the referendum, to the extent to which it has been abolished, was before this House, I did not consider seriously enough its constitutional aspect and the constitutional objections that there were to that course. I am supporting this Bill entirely on constitutional grounds, and no other. There is no doubt that the Constitution of the Irish Free State is an entirely democratic Constitution. Article 2 which was read by Senator Douglas is conclusive as to that. Senator Douglas read the Article but, as it is the very foundation of my argument, may I read it again for the House?

"All powers of government and all authority, legislative, executive and judicial in Ireland, are derived from the people of Ireland, and the same shall be exercised in the Irish Free State (Saorstát Eireann) through the organisations established by or under and in accord with this Constitution."

So far as legislative authority is concerned, Article 2 would read in this way:—

All legislative authority in the Irish Free State is derived from the people, and shall be exercised through the organisations established by or in accord with the Constitution.

Nothing could be clearer than that declaration, and it was loyally honoured by the framers of the Constitution and by the Houses when they passed the Constitution into law. The organisation referred to in Article 2, established by the Constitution to exercise the sovereign legislative authority of the people, was the Oireachtas. They were to exercise it "in accord with the Constitution." That was the fundamental constitutional contract between our Parliament and our people—I repeat "contract." According to the Constitution, the legislative power of the Oireachtas derived from the people was made subject to the veto of the people on referendum under Articles 47 and 50. In giving control to the people by referendum a vital distinction was made between what is called in the Constitution ordinary legislation and legislation amending the Constitution. The control of the people by referendum over ordinary legislation was not made complete. It was conferred by Article 47, and it only became effective on the written demand of, I think, two-fifths of Dáil Eireann, or a majority of the Seanad. But the control of the people by referendum over legislation amending the Constitution was much more complete. In fact, after the 6th December, 1930, it would have been complete under Article 50 as it originally stood. Article 50 permitted amendment of the Constitution by ordinary legislation for eight years, but with the referendum provided in the case of ordinary legislation by Article 47. There was still the referendum during the eight years, but it was a weaker referendum provided by Article 47. The reason for permitting amendments of the Constitution by ordinary legislation for these eight years was obviously this, that it was a new Constitution, and it had to be worked for a while before some defects might, perhaps, be discovered. Very properly, a sort of tentative period of eight years was given, during which it was possible to amend the Constitution by ordinary legislation with the referendum provided by Article 47. But when it came to deal with amendments of the Constitution after the 6th December, 1930, Article 50 gave a compulsory referendum. It declared that after eight years—the stated period—no amendment of the Constitution passed by both Houses should come into operation until it was submitted to the people by a referendum, and by a referendum which was to be taken part in by a majority of the persons on the register actually at the poll, and carried by either a majority of those on the register or by a two-thirds majority of those who polled.

Some years ago, I think in 1928, we abolished the referendum in the case of ordinary legislation. We knocked Article 47 out of the Constitution altogether. We may have been right or we may have been wrong about that. There will be quite reasonable and quite honest differences of opinion as to whether we were right in abolishing the referendum in the case of ordinary legislation, but I am satisfied that we had power to do so, without a breach of that contract between the people and the Parliament, which, I submit, does follow, from what was done to Article 50. But when we came to deal with Article 50 we extended the period of eight years, during which amendments of the Constitution could be made by ordinary legislation, to 16 years, that is, until the 6th December, 1938. As we did that during the period of the original eight years, we were able to do it by ordinary legislation, and without the possibility of a referendum, because in both Houses that enactment was carried by majorities which made it impossible for a minority in either House to go to the people. I submit, as a matter of constitutional practice, that we were wrong when we did that. We were wrong when we extended the period of eight years to 16 years. It was a breach of the solemn declaration in Article 2, followed by the provisions of Article 50. We had promised to the people by Article 50, and had entered into a constitutional contract with them, that after a period of eight years we would make no amendment of the Constitution without their assent. We increased that period to 16 years without consulting them. I wonder if we had power to break our word. That is a question which it would ill become me to give an opinion on in this House. It is a question of the most serious import. If we pass this Bill we will restore some of what we ought never to have taken away from Article 50.

Mr. O'Neill

Who took it way? I am asking, as a matter of information, as I am a dunce in these matters.

Mr. Brown

The Oireachtas took it away, and this House joined in taking it away.

Mr. O'Neill

I am learning what I never knew before.

Mr. Brown

For the reasons I have given I say that we ought not to have taken it away. If we pass this Bill we will restore some of what we ought not to have taken away. It will be a vital part of what we took away, and it will restore to the people, in some small measure, a right they had in Article 2 and in Article 50, to say whether the Constitution which declared and originally protected their legislative authority, may be altered to their detriment without their assent.

Minister for Lands (Mr. Connolly)

This Bill, which is introduced by Senator Douglas, marks a very interesting stage indeed. I do not want to make any comment on the fact that Senator Douglas, realising that this was a situation of extreme importance, read his speech. I notice latterly a tendency in this House for members to read speeches. Of course it would be a great convenience in some cases, and might make for greater accuracy, if speeches were read, but I would suggest, if it is going to be the practice, that there should be a ruling on it. No doubt, conscious of the importance of the subject, particularly when one considers the background of Constitution (Amendment No. 10) Bill, which was passed in 1928, it is desirable that one should be accurate and precise about what one says in a matter of such importance. I was very much interested in the arguments which Senator Douglas put forward, and I was very much intrigued with the comparison which he has given us, regarding the constitutional position in other countries. Even though he is not fully informed with regard to the position in Italy, in Germany and in some other countries, it is interesting to know the constitutional position in countries like Esthonia, in Turkey and the rest, and we will all glean a good deal when we have the analysis which he has prepared. But I would like to point out with regard to this comparison that there is no parallel whatever between the position of these countries and the position of the Irish Free State. In the first place, Senator Douglas knows better than anybody in this House, and possibly as well as, if not better than, anyone in the country, that the Constitution as drafted by the Drafting Committee, of which he was a member, was not the Constitution which was put into force within the Free State.

He knows that the Constitution under which we have had to labour is an imposed Constitution, which was not decided by any group of Irishmen sitting as a Drafting Committee but was the deliberate imposition of certain people who felt that they should give us not what we liked but, to use the Cromwellian phrase, what was good for us, from their point of view. I was interested enough to turn to the statement of the Senator when the Constitution (Amendment No. 10) Bill was before this House and to look up the attitude of certain other Senators on that occasion. Senator O'Farrell is in a perfectly logical and consistent position in supporting this Bill. Senator Douglas makes the defence that there is no virtue in consistency on political matters. Granted that that be so, it is significant that the Senator's inconsistencies always arise when any question affecting the outlook of what I might call the Republican movement, in its various forms in this country, develops. He has a facility not only for changing his mind on these things but for convincing us that there is always a high moral principle behind his change of front.

Senator Douglas very naively and ingenuously suggests that a two-fifths minority in the Dáil should be sufficient to enable any question affecting the Constitution to be put to the country. The present Government has, I think, the biggest single Party that has yet been returned to the Saorstát Dáil. It would be difficult to conceive of a political Party being returned to power under proportional representation with a three-fifths majority, so that I think that the Senator is on perfectly safe ground, from his Party point of view, in the fraction which he stipulates in his Bill. It is also interesting to note that when it comes to the Seanad the Senator requires only a majority. That is significant. Whatever might be said for or against the power of referendum, or reference to the people, we cannot quite overlook the attitude that was taken up when the power of initiative was destroyed under the Constitution (Amendment No. 10) Bill which was passed in 1928. It is to be remembered that at that time 75,000 signatures were required to initiate any measure dealing with the referendum. Ninety-six thousand signatures were secured for a constitutional amendment at that time and a Bill was immediately put through which eliminated the power of the people about which we are so vitally concerned at the moment. The referendum went by the board.

This is a matter that might be considered on its merits in Esthonia or one of the other countries mentioned by the Senator. I suggest that it savours of astute political Party tactics for the Senator to introduce the matter in the form he has done and with such a native speech as he is just after making. It was not desirable to trust democracy or to trust the people in 1928, but it has now become a matter of urgency that the people should be consulted, according to Senator Douglas. I have mentioned that Senator Douglas was a member of the Constitution Committee. I do not know whether or not he approved of the Constitution that had finally to be accepted, but I presume he favoured the acceptance of the Constitution as it then was. Then we find him, in 1928, swinging from that viewpoint and taking an entirely different viewpoint. It is interesting to note what he said on that occasion. Speaking on the Constitution (Amendment No. 10) Bill Senator Douglas said:—

"Under Proportional Representation, I believe you will always have a Party with two-fifths in the Dáil in opposition."

That, no doubt, accounts for the two-fifths which he wants to introduce in his new Bill.

"You will never have such a difference as you might have in England. The result is that, as the section which we have taken out of the Bill stands, the position, whether it be the people in support of the present Government or the Opposition there will always be delays to the so-called referendum. You are not taking away the rights of the people, but you may take away the rights of certain parties to thwart useful legislation because it did not suit them at the time. I strongly support the Bill."

I suggest that that is a direct contradiction of what the Senator has suggested here in his introductory speech. One is entitled to put the interpretation on it that the Senator of 1928 has, for various reasons, found it essential to do a complete somersault on his views then and become the Senator Douglas we have here to-day. Senator O'Farrell's position I can readily understand. He would be entitled to do everything possible to force the acceptance of this measure. Senator Sir John Keane, who voted as one member of a minority of seven against the Constitution Bill, would also be entitled to stand four square behind Senator Douglas's Bill. He held out rigidly for the will of the people at that time. He held that the referendum was part of the Constitution. He is one of the few members of this House who would be logically entitled to support this measure. I appreciate very much Senator Douglas's appeal to the Fine Gael Party, and I am sure they, in turn, will respond.

Senator Brown says that he is ashamed to admit he did not consider the Constitution or the constitutional position at the time. He also is very much concerned with democratic powers. With all due respect, Senator Brown is asking us to underestimate the value we place on his ability and his conscience in dealing with matters in this House. During a very long experience, I have enjoyed listening to the Senator dealing in the most learned and most competent way with the most intricate problems that come before this House and I cannot readily accept the statement that Senator Brown dealt with Constitution (Amendment No. 10) Bill in a haphazard manner. I am fully satisfied that, with his acute legal mind, he realised, as perhaps nobody in this House realised, the implications in Constitution (Amendment No. 10) Bill. However, that is by the way.

Senator Douglas has referred at considerable length to the position in these other countries. It is interesting, in respect of that phase, to quote his opinion in 1928.

"The experience of other countries is that the referendum is the most conservative instrument that has yet been found for the prevention of legislation. If the Bill is vital to the life of a Government——

That is, the Bill then under discussion.

"or the life of an Opposition depends on it, both Parties will spend money and people will be instructed in the same manner as in a general election and you will get every information on the Bill. If there was a practical method on vital matters of getting the opinion of the people irrespective of the issue whether this Government was to remain in power or not, I would not be opposed to the referendum."

That was Senator Douglas's opinion in his comparison between this State and other countries. Various other opinions were expressed at that time. Senator Blythe was, at that time, Minister for Finance. It is interesting to see what his viewpoint was. If it throws any reflection whatever on the Constitution Drafting Committee, of which Senator Douglas was a member, it has to be remembered that I am merely quoting Senator Blythe, who was then Minister for Finance:

"An altogether fantastic importance has been ascribed to Articles 47 and 48 of the Constitution. They are Articles which were very little discussed before the Constitution was first published. I have no recollection who was in favour of them. I do not know how the proposal for the initiative and the referendum originated. I do not know who suggested them. I know that not much importance at any time was attached to them. Attention was concentrated upon quite other Articles and difficulties in connection with other Articles. When the Constitution was going through the Dáil, the discussion which took place upon those two provisions was very little."

He goes on to say:

"We introduced these particular provisions without any great consideration, without having had experience which might show us what was necessary and what was workable in a Constitution. After a certain amount of experience, we came to the conclusion that these Articles and other Articles were faddist schemes and the Constitution would be better without them... The referendum may be all very well for some small communities. A referendum might be a very good means of deciding in a country town where and in what position the town pump shall be placed or on what day a market or fair shall be held but it is certainly not suitable in a community of any size for deciding on any ordinary law."

He also said:

"People with a democratic system of election have all the powers that they can have under the initiative. Anything that can be done by the initiative can be done through the election of representatives and there are things which it would be against the public interest to do over the heads of elected representatives, supposing that the majority of the people could be got to do them."

I have one other quotation that I would like to read. Speaking on the 26th June, 1928, as reported in Parliamentary Debates, columns 1428-1429, he said:

"The reasonable and best method, is to have as democratic a system of election as you can have, and to allow the freely elected representatives of the people to come together, to hear the arguments, and to decide on behalf of the people, and then to go back and meet whatever fate befalls them at the hands of their constituents, and either have a renewal of confidence or be replaced by other people who can undo what they have done... I believe if people come together in good faith, freely chosen by the people, if they look at problems put up to them, if they hear the arguments of their colleagues and opponents and come to a decision on them, you will get, generally, a very much closer approximation to what the people want than you could get by having a referendum on which very few people would vote, and of which a great majority of those who would vote would vote without having given any serious consideration to the question involved. I believe it is no respect to the people to try to make them to do work which can only be done by special machinery and which cannot be done directly..."

That was the viewpoint as we saw it expressed in 1928 and, I think by its endorsement in the Seanad, when there were only seven votes recorded against the Constitution (Amendment No. 10), Bill, we have a clear index as regards the mentality of the Seanad at that time. What does this amount to? Is it seriously suggested that Senator Douglas has become the apostle of democracy of the future? I suggest that whatever might be said pro or con on the abstract question of a referendum this Bill is brought in to serve a purely tactical purpose. I see no reason for it, on examining the attitude these people took up on the referendum in 1928, than simply a matter of tactics. The situation was such that already they had abolished the initiative and the referendum; and what might have been assumed to be the rights of democracy were ignored in 1928. But after the democratic view has been expressed at two general elections, after the largest Party that ever sat in the Dáil had been returned to power, then it becomes essential to try to adopt and pass a measure which is the negation of all those people argued for in 1928. That is the matter the Seanad has to decide. I do not propose to try to limit our Party in any way on this matter; they can vote as they like. But I suggest that there are only a few people in this House who can justify voting for this measure. I suggest that those who want to vote for it will only be supporting a question of political tactics to suit the altered conditions in which the Party opposite find themselves to-day. For that reason, if for no other, I myself shall oppose this Bill.

Mr. Farren

I do not want to make a long speech on this Bill, except to say that I always believed in the referendum. When an attempt was made to remove the Article dealing with the referendum from the Constitution we of the Labour Party opposed it as bitterly as we could. We pointed out that a wrong step was being taken. I am in the same position to-day. I believe the referendum never should have been taken out of the Constitution, and I am in favour of this Bill putting the referendum back into the Constitution. I have nothing further to say except this: These difficulties always arise because of the fact that important questions, with political bearings, do not receive fair open-minded treatment under our present Party system of Government. I believe, no matter what Government is in power, if they propose anything that is right and just they are entitled to support. If they propose a thing which is not right and just, then they should be opposed. We have in this Bill a complete reversal of the position taken up a few years ago. This is not an argument in favour of single Chamber Government. When one particular Party is in power if they find an Article is not to their liking they try to get rid of it and cut it out of the Constitution. Then there comes a time when that Party becomes the Opposition; they find that other people in power are getting the benefit of amendments made in the Constitution by them and they say: "It was all right for us not to be handicapped by these things; but now that there is another Government in power they should not have these benefits at all. They are not entitled to have all these things; they should be handicapped and impeded as other people were." That is not the way to do the business of the country. Then the mistake is made of considering matters, not on their merits, but because of Party advantage. That causes most of the trouble. When the elected representatives of the people make up their minds that they are elected to do certain work for the people, and not to score over their political opponents, the sooner we will have a proper form of government, harmony in the State, and a better state of things generally. I opposed the removal of the referendum from the Constitution when that matter was brought forward in 1928, and, for these reasons, I am in favour of putting it back into the Constitution as proposed by this Bill.

Mr. Blythe

As Senators might have gathered from extracts read out by Senator Connolly I do not view this proposal for a referendum with any great enthusiasm, although as a matter of fact the extracts read were dealing with ordinary legislation. As a matter of fact I preferred the flexibility of the Constitution. If we had a constitutional outlook which was accepted by all Parties and were assured of the continuance of a Second Chamber I would not see anything at all in favour of the referendum. I was not here for the beginning of Senator Douglas's speech but most of what I heard only tended to make me rather less disposed to vote for this Bill than I was before I heard it. I do think we are not in a special position. We have a Government and a Party with a majority in the Dáil, which if it remains in power long enough, and retains that majority, is in a position to eliminate the Second Chamber, and to carry on with a completely flexible Constitution which will result in or establish a sort of Party dictatorship. The only way in which, if there is no Second Chamber, you can prevent the establishment of a Party dictatorship is to have some provision for the referendum. I think it is an undesirable sort of weapon. The fact of the existence of a revising Second Chamber is very much more satisfactory. As a matter of fact, when the referendum provision was struck out of the Constitution, Senators will remember that a Bill was prepared at the same time extending the powers of the Seanad. What was done was that the Oireachtas said that the proper way to protect the people's rights was not by this referendum provision at all, but by having a Second Chamber which would ensure them from wanton or hasty or drastic changes, or from anything in the nature of a dictatorship being established by a Party having for the time being a majority in the Dáil. In view of the probable abolition of the Second Chamber, and, in view of the fact that the people who are now apparently going to oppose the referendum were in favour of it a few years ago, and, in view of the fact that the Fianna Fáil Party voted for it and the Labour Party voted for it, I would like to allow this Bill to come to them, and see what they now think of the referendum when they are proposing to abolish any other check upon drastic and unjustifiable action of a relatively small majority of the Dáil. As I say, I regard the proposals in this Bill as very much in the nature of second best proposals. I think whatever may hap pen in other countries, in fact, as a general scheme the referendum has very little merits; I think, on the other hand, it is certainly a most undesirable position to have a majority in the Dáil able to abolish the judiciary, and to prolong the right of the Dáil for any length of time, because once the Seanad goes there is nothing to prevent a majority of the Dáil deciding upon avoiding an election and delaying it for ten or twenty years if they like. If the Second Chamber has to go something ought to be substituted, and I would be in favour of giving the people an opportunity of taking a referendum. We do want to see that something will stand between the liberties of the people and the tyrannical action of a Dáil majority that long ago has exhausted its mandate.

Mr. O'Neill

I came into the House to-day with a perfectly open mind so far as this thing is concerned. Certainly my mind has been opened as to the great inconsistency that has been displayed by members of the Seanad and by members of the Dáil in the past. But I think Senator Douglas explained the position very fully when he said inconsistency is the royal road to progress. I must, however, congratulate Senator Douglas in breaking, I will not say deliberately, the Standing Order as has been referred to by Senator Connolly. When I break the Standing Orders next time I hope the Chair will not come down very heavily upon me, because it is hardly fair that Senator Douglas should be allowed to break the Standing Orders on every conceivable occasion while a poor simple Senatore like myself is immediately sat upon if he does anything of the sort. I was rather taken by the action of many Senators when a certain Bill was before the Seanad some time ago. That was a Bill brought in by the present Government with, as the hackneyed phrase goes, a mandate from the people, namely, the Oath Bill. Senator Douglas and those associated with him vigorously opposed that Bill, but the authority of the people had to prevail. I do not like to go into personal matters with regard to what happened in the past. When Senator Brown was asked who opposed those other Bills, with a certain amount of anger he replied that the Oireachtas did. The Seanad at any rate has changed its mind. Now I had intended to give a silent vote on this matter, but at the same time I want to make my position absolutely clear. I am going to vote for this Bill. I was not present when it was introduced, but I am going to vote for it as a believer in true democracy—as one who believes that the will of the people should prevail. For that reason alone I will vote for it.

Mrs. Clarke

I feel that I like to be consistent. I was one of those who got some of the 96,000 voters, referred to by the Minister, to use the referendum some years ago. Nothing has happened since to change my mind about the referendum. I realise that the Senator who has introduced this Bill may have done so as a very astute political move at the present time, but that does not affect the thing in itself. To me the thing is good. I cannot allow the fact that somebody has introduced this for a political purpose to change my mind on it, and for that reason I propose to support what I believe to be right. I think it is a very good thing to have the referendum restored. I am glad, too, that during the years that have elapsed since the referendum was deleted the experience of legislation which members of the Seanad have had in those years has converted them to the belief that we held then. I thought then that the referendum was a very good thing as I now think it is. I hope that, if it again becomes part of the Constitution of this State, it will remain there for all time, and that no Party that comes after us will, for reasons of political strategy or for any other motive, remove it from the Constitution.

Mr. Foran

I think Senator Mrs. Clarke has put the position very clearly. She has expressed the hope— like her, I join in the hope—that when the referendum is restored to the Constitution it will not be removed again from motives of political expediency. But, like Senator Mrs. Clarke, I am afraid that her hopes are in vain, because Senator Blythe let the cat out of the bag when he said that, in view of the Seanad going out of existence, this would be a very good alternative.

Mr. Milroy

What the Senator said was a very second-rate alternative.

Mr. Foran

A second-rate alternative, I grant you, but that does not get away from the fact that Senator Blythe is not by any means in love with it. I believe that if he was in office again he would remove it. I have no doubt in my mind as to what his attitude on the matter would be. I happen to be one member of the House who voted against the removal of this clause in the Constitution. When I say that I do not want to pretend that I am any wiser than other members, or claim the possession of greater wisdom or virtue, but at least I have been consistent in the matter—not that there is any great advantage in that. But if, by reason of the action I took at that time I showed that I had some wisdom, I must say that it has taken a number of Senators a long time to acquire wisdom. I hope, however, that, as a result of their experience in this matter, their education is now complete.

I am going to vote with the majority on this Bill. I share the hope of Senator Mrs. Clarke that if this Bill becomes law it will remain a permamanent feature in the Constitution of this State. But I have very grave doubts on that. I believe that if the Fine Gael Party came into office that one of their first acts would be to again remove the referendum, and that some people who see great virtue in it to-day would vote with them. I am not claiming to be a prophet, but I do claim to have a shrewd idea of how things are done and of what is likely to happen in the future.

Mr. Milroy

I rise to speak on this Bill in order that my position may not be misunderstood. Senator Farren in his speech, which had certain peculiar implications, seemed to suggest that this was a move by the ex-Government Party. If it is I have no knowledge of it. I think that was what he intended to convey: that when the last Government was in office they found the referendum inconvenient and removed it, and that now, being in opposition and finding the absence of the referendum inconvenient, they have decided to restore it. I think that is a fair representation of the Senator's statement.

Mr. Farren

Does it not state the position correctly?

Mr. Milroy

So far as I know it is an entirely inaccurate representation of the position, and I think I am fairly intimate with what is the outlook of the ex-Ministerial Party. I was not a member of the House when the referendum was deleted. If I had been I should probably have supported its deletion and for very evident reasons. The referendum was then being used, or at all events it was attempted to be used, for a very specific purpose, namely, to disrupt the State and to disrupt the Constitution, and for no other purpose. It was to prevent that disruption of the State and of the Constitution that the referendum was removed, and not because those who then spoke for the Government and for the State wished to do violence to any democratic principle.

I was very glad when I heard the Minister for Lands refer to some of the countries which had been cited by Senator Douglas—Esthonia and others —and saying that there was no parallel between those countries and this. The argument and the statement of the Minister will come in very useful when we come to deal with another Bill in connection with which those countries have been cited as a ground for taking certain action with regard to the Constitution of this State and the existence of this Chamber. The curious thing about the statement of the Minister was, that from the beginning to the end of it he gave the House no indication as to what the opinion of the present Executive is with regard to the referendum. He rose, he spoke, and evidently was quite satisfied of the fact that he could not convince the members of his own Party one way or another, so he left this to an open vote.

The first suggestion that I want to make in regard to this Bill is that I believe the referendum could serve a very useful purpose if one could be certain that the majority of those qualified to cast their votes would do so. For that reason, I believe that if the referendum is restored and is to serve any useful purpose you will need to have something in the nature of compulsory voting: I mean compulsion by statute and not compulsion by violence. I believe, on the other hand, that the use of it will be disruptive and destructive if the great majority of the electorate refuse to take hand, act or part in bringing about a result by means of it. I think that before the Bill is passed Senator Douglas should consider the introduction of some provision which will secure a full vote of the electorate and not a mere 23 percent. When the Saorstát was one constituency only 23 per cent. of the electorate voted for the election of members to this House. I think that a minority vote of the electorate under the referendum would be not only delusive but definitely harmful. Therefore, I hope that the Senator who is responsible for this Bill will consider my suggestion so that a full vote of the electorate will be secured if the referendum is ever used.

Personally I am not enthusiastic about this Bill. I am simply acquiescent. If the Bill is passed, and if some provision is not made to secure a full vote of the electorate, I cannot see that the referendum will serve any useful purpose at all. Suppose that you had the referendum, and that the question of the abolition of the Seanad was put before the people, we can see those who are enthusiastic for the abolition of the Seanad, to the last man and the last woman, going to the polls to record their vote on that question. The great majority of the electors, I think, realise the useful purpose which the Seanad fulfils, but may not feel that its existence comes home to them as a vital issue and they may remain indifferent. In that eventuality you would get by means of the referendum a minority vote of enthusiasts upon that particular question, while on the other side you would have voting only a partial number of those interested. The only referendum that I am concerned with, the only referendum that I am interested in, and the only referendum that I think in present circumstances will effectively decide anything is a general election, and I am sorry that there is no responsible person here speaking for the Government to tell us whether or not we shall have that referendum or not.

Leas-Chathaoirleach

Senator Douglas to conclude.

Mr. Douglas

I should like, first of all, to refer to the general charge of breaking Standing Orders. Since this Seanad came into being there has been a Standing Order that speeches should not be read, but there has been a standing practice that Ministers and others introducing Bills should be entitled to read their speeches. It would be just as easy for me to make a speech as to read one. In fact, it would be much easier because I would have been saved the trouble of writing it out. Senators will have noticed that every other week Ministers come here and read their speeches when introducing Bills, but because that was done on their side Senator O'Neill and Senator Connolly did not mind it the tiniest little bit. They never raised any objection to it, but when they find that somebody on this side happens to read a speech they at once make reference to the Standing Orders.

Mr. O'Neill

With the greatest respect I do not care whether it is a Minister or a King breaks the Standing Orders, I shall object. I am glad to hear that according to the Senator procedure had put the Standing Orders on the shelf.

Mr. Douglas

I was not very much concerned with the objection of Senator O'Neill, but I was rather concerned with the attitude of Senator Connolly. Having seen, and sat close to, members of his own Government, reading their speeches here frequently, he saw fit to raise an objection when the same method was adopted of presenting a Bill which did not happen to be a Government Bill. I am sorry he is not here. He is an old friend of mine and is still a friend of mine but I thought the statement very unworthy of him on a Bill of this kind.

Mr. Comyn

Of course he did not realise your very difficult position on the present occasion.

Mr. Douglas

Senator Connolly, as I rather anticipated, spent a good deal of his time in trying to show inconsistency on my part and also on the part of certain other Senators who may support this Bill. He then went on to act in a most inconsistent way himself having regard to his own views on the referendum as expressed in this House before. If it be true that I am inconsistent having regard to my attitude on a previous occasion, then it seems to me that the position of the Government, or at any rate his position as spokesman of the Government, is identical. Now that he is a member of the Government in power, he holds a different view on this matter. Therefore he is equally inconsistent. I am not personally concerned with these charges of inconsistency. I think I have tried to be frank in this House on all occasions without any idea of being inconsistent. As I am dealing with the matter now I may as well state my position in regard to the referendum. On the original Drafting Committee I supported the referendum for all legislation but I opposed the initiative for all legislation believing it to be unwise. There was a difference of opinion on that Committee, even amongst those who joined together in the same report, and the net result was that it was made possible to have the initiative but it was not actually put into the Constitution in the same way as the referendum was, as you are no doubt aware.

I have already changed my opinion almost entirely, as a result of reading and of visiting other countries where the referendum has been tried. I now believe that it is extremely difficult to work it for all types of legislation. Even on a small matter, if a referendum goes against the Government in ordinary legislation for which it is responsible, it is more or less obliged to resign and the effect in some countries—I am informed it is the case in Esthonia where you have it for all purposes—is that you do not get stable Government, of which I am very strongly in favour. In the case of constitutional amendments, however, I have been in favour of a referendum or a method of postponing the question to the next general election. I do not mind which. I think there is a good deal to be said for the method of postponing the question to the next general election. The present Government, when in Opposition, were not in favour of that method and I presume they would not be in favour of it now. I say there is need for some distinction between constitutional amendments and ordinary legislation, and I brought forward this Bill, not because I think it is better than the other method, but because I am convinced that some similar method is essential if we are only to have one Chamber. I brought forward a Bill to provide the method which had been supported by the present Government when they were in Opposition.

Senator Connolly thinks it is a political trick. Senator Mrs. Clarke, in a very candid and frank speech, as are most of the speeches which come from her, said that even if it were a trick she would support it if it were the right thing. I should like to ask Senator Mrs. Clarke, if she were here now, how a political trick could be the right thing? If it is the right thing how can it be a political trick?

Mr. Foran

Might I answer on behalf of Senator Mrs. Clarke. A thing that is right when a Party is the Government becomes a trick when they are in Opposition.

Mr. Douglas

I think the Senator has made it very clear. When the Constitution No. 10 Bill was presented here, on this side of the House, the matter was considered at considerable length. I then was of opinion that it was a mistake not, at the same time, to amend Article 50 so as to make the principle of the referendum applicable to all constitutional amendments. For that opinion I did not get as much support as I would have liked and I do not think it was fully considered. I was not, however, of opinion that we should retain the referendum for all legislation. I am still of that opinion. I do believe that those who go to any trouble to study constitutional law in Europe—a study that is well worth while—will agree that we should either have no Constitution at all or have a Constitution which is not going to be a Party Constitution. Senator Connolly objected and said that I very naively proposed a minority of two-fifths, and asked "Why two-fifths?" He had previously referred to the fact that the Constitution as passed here was not the one which was drafted by the Irish Committee. He has presumably from his speech read the drafts that came from the Committee. If he has done so, he will find that the two-fifths proposal came from that Committee which was not then considering the matter from any Party point of view at all.

I have not attempted anything new in this Bill. I have taken the original proposals as far as constitutional amendments are concerned. The only change I have made is in regard to the one-twentieth of the electorate. I was advised that it was difficult always to know what one-twentieth of the electorate would represent and that it was better to say 75,000. If it would please Senator Connolly to go back to the one-twentieth I would be agreeable. Otherwise there is no new scheme in this proposal and his notion of my naively suggesting something to suit the circumstances has no basis in fact whatever and can only have been put forward by him from a Party point of view. What I want to emphasise is that I do not want to have a minority which can be overruled. My case is that a substantial minority in Parliament should be able to refer a constitutional amendment to the people because the Constitution should be a protection for every Party and not for one Party only.

Senator Mrs. Clarke, Senator Farren and, I think, another Senator said that they hoped that if this Bill were passed into law—and it does not look very much like it judging by Senator Connolly's speech—it would not be altered again by another Party. If they will read this Bill they will find there is no attempt to make it suit one Party or another. It provides definitely that there can be no further amendment to the Constitution without a referendum. It would be quite all right, of course, to abolish any Article in the Constitution if the Party proposing it got the people to support them. Even the Labour Party will not object to that. This Bill is not a Party measure to deal with an immediate situation. I confess perfectly frankly that when I brought this Bill forward the idea was my own. I consulted a few Senators, but I did not go to any of the large Parties or ask them to support me. I introduced this Bill now because I believed that there is a need for it and, further, I believed that this particular time was a period when quite a number of people would see the need for it in a way in which they could not see it at another time. I think that would apply to the Fianna Fáil Party just as much as to the Fine Gael Party because they profess to be fearful that some other Government is going to take dictatorial powers in future. If they really believe that, they should not be so anxious to oppose a Bill of this kind. It seems to me, however, as if the Bill is not going to get a very large measure of support from that Party unless a free vote is allowed amongst the members of the Party or amongst the members of the Cabinet.

Mr. Comyn

The House would like to hear the Senator on the merits of the Bill now.

Mr. Douglas

I think I dealt with them in my introductory speech. I have replied to the various suggestions that were made which might influence other people possibly against the Bill. I think that Senator Connolly in his speech failed entirely to make a distinction, and to recognise the distinction, between a referendum on ordinary legislation and a referendum on constitutional amendments. He quoted speeches of mine which, of course, I had already looked up. I thought that they might have been even more contrary to my present view than I found them. These speeches referred to ordinary legislation but he applied them to a Bill which deals only with constitutional amendments. He did not tell us what was his view with regard to constitutional amendments. He also made reference to the fact that two-fifths of the Dáil can delay a Bill in order that people may ask for a referendum and he said that one could see the mentality behind this Bill, because it suggested that a majority of the Seanad was necessary in order to delay legislation. The provision regarding the two-fifths of the Dáil is the same as it was in the original Constitution. If he prefers to make that two-fifths in each case I shall be prepared to meet him. The Seanad has less power than the Dáil because it requires a majority of the Seanad to hold up a Bill. I would be satisfied to make it two-fifths in Committee if he wishes it. Senator Mrs. Clarke will find that the remarks which she made in regard to votes would apply to the initiative rather than to the referendum. Again, on examination of the various Constitutions, I find that the initiative on constitutional amendment by the people exists only in one country of which I know. The initiative, that is giving ordinary voters power to initiate constitutional amendments, is obviously a power that would lead to continual difficulty for any Government in power.

The last matter I have to refer to is the fact that some Senator said that when the Bill for the abolition of the Oath was before this House, those who are in favour of this Bill were altogether against that Bill. I cannot speak for anybody else but I would say that if a proposal had come from the Government—and I certainly do not remember that it was ever suggested in this House—that that Bill should be referred to a referendum I would have supported it. It would have been a much easier way out of it instead of waiting for a general election at which a considerable number of other questions were placed before the electors as well. I hope the House will recognise the object of this Bill. It is a simple Bill. It is really to re-establish the position in regard to constitutional questions which existed hitherto and which I think always should be the position. In fact, I am not quite sure that it is not really the constitutional position at the present time. On that point I am inclined to agree with the views expressed by Senator Brown.

Question put and agreed to.

Committee Stage ordered for Wednesday, May 23rd.