Voters need to be vigilant when there is overwhelming cross-party agreement on a proposal. Politicians are at their most subjective and foolhardy as lawmakers when they are making electoral law.
This week the Dail sought to make it a criminal offence to conduct or publish the results of an opinion poll in the last seven days before an election.
Anyone who conducts or publishes a door-to-door questionnaire, a telephone poll or even an Internet survey asking what voters think on any political issue or how they intend to vote will face a fine of up to £100,000 and/or a prison sentence of up to two years. This proposal is constitutionally reckless and politically wrong.
Article 40.6.1 of the Constitution protects the right of citizens to "express freely their convictions and opinions". Of course, this right is not absolute. The constitution therefore also provides that organs of public opinion cannot be used to undermine public order, morality or the authority of the State. It is on this basis that, for example, pornographic or racist material can be outlawed.
Reading an opinion poll result is unlikely to cause rioting, nor is it likely to drive anybody to immoral behaviour.
Despite this, it will now be a crime to publish or conduct opinion polls. This new offence is to be created because politicians have come to the conclusion that opinion polls cause voters to do things they don't want to do. The basis for this ban is neither rational nor objective.
In a working modern democracy such a significant restriction on the right to freedom of expression should not be contemplated without care. There should be extensive political debate, both within and between parties. To support their case, politicians should be able to quote studies which prove that opinion polls influence voters.
Finally, before the proposal is enacted into law, there should be a "period of quiet reflection" of the kind politicians claim voters need before polling day.
Sadly, none of this happened in this instance. Those in favour of the ban can only offer anecdotes about changes in public mood following opinion polls. The idea was lobbed across a Dail committee-room table, grabbed on the hop by a Minister of State and seven days later the proposal was rammed through.
Quite apart from being ill thought out, this law is unworkable. The text of the amendment is too broad and lacks certainty. It is not clear how this new crime is to be policed. Is someone who answers a pollster's question to be charged with aiding and abetting the commission of a criminal offence?
This ban restricts the ability of commercial undertakings, such as polling agencies and media outlets, to conduct their business during what is usually one of their busiest weeks.
The ban cannot extend to media organs outside the State. If UTV polled voters in the Republic by telephone from their Belfast office they could have a week of exclusive headlines by publishing constituency or national opinion polls while their Dublin-based competitors were banned from doing so.
This proposal is also fundamentally bad policy. It is antidemocratic to restrict public access to information at a time when people are making their most important democratic decisions. It is another example of a patronising trend in Irish electoral law.
Hundreds of factors influence voter decisions. Even if it could be proved that polls influence voter decision, it is difficult to see on what basis it is concluded that this influence distorts the choices voters make.
If opinion polls are to be banned then it follows that all activities which influence and might distort voters should be restricted. A number of examples illustrate the absurdity of this position.
The betting odds offered on parties or candidates must influence voters: is my local betting shop to be closed for seven days before polling day?
Newspapers are crammed with analysis, editorials and even photographs which can influence voters. Surely we must now ban newspapers for the last seven days of a campaign! Presumably politicians would hold that the numerous speeches uttered by candidates and ministers in the last week of a campaign influence voters: are these to be made illegal?
This week the Irish legislative system did not work. However, all is not yet lost. Next week this Bill goes back to the Seanad. Perhaps in the calmer, less partisan, atmosphere of the upper house senators will reject, and thereby delay, the Bill.
If that fails, then we can turn to the President. One of the few independent powers which the Constitution gives her is the right to refer a bill to the Supreme Court to test its constitutionality.
It is seldom she has been given as justifiable an opportunity to fulfil that mandate. She should refer this flawed Bill to the Supreme Court.
Noel Whelan is a barrister and author of a number of books on Irish elections, most recently Politics, Elections and the Law (Blackhall Press, 2000). He was a political organiser at Fianna Fail headquarters for a number of years
