Mr. Ger Deering:

In the Chairman's letter to the Minister following the autumn referendums last year, he informed him that the committee had considered correspondence raising concerns about confusion among voters in respect of the design, text and language of the ballot papers used at referendums. The letter noted that the committee agreed it would be useful to examine the issues raised as part of the brief. As a preliminary step the Chairman asked the Minister to outline the Department's role and responsibilities and those of the Referendum Commission and other bodies in respect of the referendum process and format of the ballot paper.

In response the Department sent a report to the committee addressing these issues, and I note from the committee's letter of January to the Minister's office that the report was noted by the committee at its January meeting. I understand that at that point the committee felt the format of ballot papers should be reviewed in line with the findings of the Referendum Commission, and invited the Department to appear before the committee to brief members on the issues highlighted. We are very happy to attend before the committee today. It might be helpful if I summarise some of the key points and outline some of the issues that might inform discussion on the reported confusion over the format of the ballot paper.

The format of the ballot papers in the autumn 2013 referendums was in accordance with the law, as set out in section 24 of the Referendum Act 1994. The two key requirements in the context of the present considerations are compliance with the form of ballot paper set out in Part 1 of the Second Schedule to the 1994 Act, and that the referendum proposal is stated on the ballot paper by citing the short title of the Bill as passed by both Houses of the Oireachtas. Section 24 of the Act provides that the Minister may by order, following a resolution of the Houses of the Oireachtas approving that order, provide for the inclusion on the ballot paper of a heading indicative of the referendum proposal. This was done on a number of occasions for referendums. For example "British-Irish Agreement" and "Treaty of Amsterdam" were on ballot papers for two referendums held together in 1998. In these cases the titles of the respective Bills did not include any reference to the referendum proposal. The format of the ballot paper for the autumn 2013 referendum on the Seanad complied with these requirements. The need for a heading, indicative of the referendum proposal, did not arise as the Short Title of the Bill included a clear reference to the referendum proposal, "Abolition of Seanad Eireann".

It is worth noting the format of the ballot paper has remained largely unchanged since 1963. Since then the text of every referendum proposal has been prefaced with the question "Do you approve of the proposal to amend the Constitution contained in the under-mentioned Bill?", followed by an instruction to mark either the "Yes" box or the "No" box. We have had 35 referendums since 1963.

The referendum Acts provide for the dissemination of information to voters. This is done in two main ways, namely, through the independent Referendum Commission and through the statement for the information of voters circulated to voters with their polling information card. Section 2 of the Referendum Act 1998 provides the Minister may establish a referendum commission once a constitutional amendment Bill has been initiated in the Dail. A commission has been established for every referendum held since then. The statutory role of the commission includes the preparation and publication of one or more statements explaining the subject matter of the referendum and the text of the relevant Bill. An independent guide drawn up by the commission is sent to each householder. The Referendum Commission research indicated that 72% of the public claimed to have read at least some of the guide for the 2013 referendums.

Section 23(1) of the Referendum Act 1994 provides that a statement on the referendum proposal may be prescribed for the information of voters by resolution of each House of the Oireachtas. A statement for the information of voters has been prescribed for every referendum held on the Constitution. This statement is circulated to every person entitled to vote at a referendum with their polling information card. It is also displayed in poster format at polling stations. It can be used by presiding officers in assisting voters who have sight or reading difficulties. Another source of information for voters is, of course, the record of the Oireachtas debates on the particular constitutional amendment Bill. These information sources are the formal or official sources of information for constitutional referendums. They are additional to the campaigns that might be run by political parties and third parties with an interest in the subject of the referendum.

As I mentioned earlier, I understand the committee received correspondence expressing concern that the ballot paper at last autumn's referendums was confusing. The Department also received a small amount of correspondence and telephone calls, approximately ten letters and 20 calls. This is a small number relative to the 1.2 million people who voted on the referendum.

The Referendum Commission research indicated that 55% of the respondents stated it was quite difficult or very difficult to tell what they were being asked to vote for with regard to the Seanad ballot paper. The comparable figure for the Court of Appeal referendum was 47%. The research also showed that 13% of respondents who stated they voted "Yes" on the Seanad ballot paper meant their vote to be a vote for the retention rather than the abolition of the Seanad; while 6% of those who stated they voted "No" meant their vote to be a vote for the abolition rather than the retention of the Seanad.

In any consideration of ballot paper wording, it is important we do not lose sight of the gravity of the decision voters are being asked to make and the need for precise language in legal matters. Proposals to amend the Constitution can have far-reaching and profound consequences. In a constitutional referendum voters are not simply being asked their opinion on a particular issue. They are being asked to decide on amendments to the written Constitution that are set out in the relevant constitutional amendment Bill.

A question on constitutional amendment is significant and deserving of appropriate consideration and reflection by the people who are deciding on whether to amend the Constitution. This is why significant resources are assigned to informing voters about the subject matter of referendums. A "Yes" vote for a proposal at a referendum has the immediate and direct consequence of changing the law of the land. For this reason these are a number of key considerations that must be taken into account on the design, text and language of the ballot papers used for the referendums, including the use of language. We have been advised in the past by the Attorney General that the use of precis or paraphrases of the proposal which is the subject of a referendum could cause legal challenges. In addition, the question needs to be asked as to whether there is a formula of language and approach to ballot paper formatting that eliminates all possible scope for confusion. According to UK Electoral Commission research, an approach that may be completely understandable to one group of people may give rise to confusion in another group.

It is important the information available to voters is adequate. The provision of information to voters by the independent Referendum Commission is a fundamental aspect of the referendum process. As already outlined, the format of the ballot paper has been by and large the same for the past 35 referendums and 40 years. People have built up a level of familiarity with the format of the ballot paper. Any proposals for change to the design, text or language of the ballot papers used at the referendums would need to take account of these considerations. I thank the committee for the opportunity to provide this summary and we look forward to hearing the views of committee members and engaging with them.