Caít Keane (Fine Gael)

Much has been said about the overall referendum campaign. It is good that there was a "Yes" vote, but it was bad that many people who should have come out to vote did not do so. However, that is their right. The Government was complimented on its information campaign. In the last three referendums the Government was criticised for the lack of information provided for citizens. There are people who will not read what they receive and will still say they are not informed or ill-informed.

I want to concentrate on the issue of misinformation. The Government's hands are tied because of previous judgments. Let us consider a hypothetical scenario. Let us say in another referendum down the line all parties, including Sinn Féin, the Labour Party, Fianna Fáil and Fine Gael, are for the proposal, but there are two Independents - Deputy Luke 'Ming' Flanagan, Deputy Mick Wallace or whoever else - who decide to advocate a "No" vote. I would like to talk about the McKenna and Coughlan judgments in this regard. It is time they were revisited. I am not criticising any judge in this regard, but a 28 page judgment is too short for such a serious issue. I would write 28 pages, as would the children in the Visitors Gallery for an essay. These judgments have serious implications for every citizen of the State. Did the Supreme Court do a persuasive job when it ordered RTE to hold the scales equally between the different views? It should have put more thought into it and I would say the answer is "No". It did not do a good job in that regard and I would like to see a better job being done on these two judgments.

The McKenna judgment barred the Government from using taxpayers' money when making its case in a referendum. The four judges who bound the Government in that way thought this could be done in 28 pages, yet we have the likes of Ganley's Libertas "party" - it is actually a group of individuals - which can use any amount of money it likes. There is no judgment to prevent the likes of these individuals from going to every single country in Europe, raising whatever amount of money they can and spending it. They must report it under the ethics in public office provisions, but I would like to see this issue being examined. It is a serious problem that people such as Declan Ganley can do this. There are other moneys coming from America or republicans, socialists or whoever that can be made available through other parties. Everything spent in an election is accountable, reportable and so on. However, the hands of the Government are tied, as are those of Opposition parties.

I do not blame people for saying they find themselves misinformed. RTE is bound to give 50% coverage to the "Yes" side and 50% to the "No" side, regardless of how valid the arguments are. Who would be left to pick up the pieces in the ESM scenario if we could not draw down moneys? I heard Senator Fidelma Healy Eames ask this question earlier. I hope we will never need it, but we might. This responsibility must be taken into consideration.

The Hamilton judgment boiled down to the assertion that "the action of the Government in expending public funds on the promotion of a campaign was not an action in pursuance of the executive power of the State". The campaign referred to was the 1995 divorce referendum campaign, yet the judgment did not go on to define the executive powers of the State. Judges need to be asked to define them. What is an executive power of the State? In the 28 pages this issue was not dealt with. It is a major flaw in the rule on 50-50 representation. Judges need to define exactly what they mean. Is it because of EU regulations? Of course, EU regulations are linked with the executive power of the State, but why are we bound by environmental EU legislation and many other EU provisions? That is a question I would like to have answered.

One of the five judges who heard the McKenna case - I will not mention names - thought the whole thing was preposterous. He took less than four paragraphs to state that neither the Constitution nor the nitty-gritty of the Referendum Act stated anything that could be read as blocking the Dáil from giving the Government cash to make its case. It was one of the judges who made that statement and he wrote only about half a page, although I might be doing him a disservice.

I read an article on this subject by John-Paul McCarthy and I am grateful to him for bringing it to my attention.

As I listened to the referendum debates I wondered if almost every elected representative supported the "Yes" argument and one Member stood up in the Dáil and said, "I have a right to say no," whether that point of view should receive 50% of broadcasting time? We must consider the Coughlan judgment, as well as the McKenna judgment. None of the four judges who worked the equality lever in the divorce referendum really explained why RTE should be punished. I would like to see this matter reopened and rejudged and a definition of executive power given. Members of local authorities, of whom I was one, and Senators have their powers laid down. In local authorities there are executive and reserved functions. Similarly, the Dáil is separate from the Executive. I would like to see a judgment on this. As members of a Government party, Fine Gael members saw who would be left to carry the can in a financial fiasco. Those who advocated a "No" vote also advised people not to pay the property tax. They will pay the tax because they do not want to be brought to court or sent to jail, but it is all right to advocate that their constituents should refuse to pay and risk being sent to jail. That is irresponsible. If they are not prepared to bring forward an alternative proposal to ensure funds for ATM machines, social welfare payments and everything else, who will carry the can? Who will be responsible at the end of the day? To whom do we listen and who is telling the responsible story? We cannot blame RTE or the media in this case, as they were bound by a judgment. It is up to us, as politicians, to question it. That is all I am saying. I congratulate the "Yes" and the "No" sides on the work they did. Everyone worked under the banner he or she was given. It could happen that everyone would lose the plot and one person might be right. For such an eventuality, we must define "executive power" and what is and is not legal.