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.