It must be rare for a Government to put a Bill through the Dail against the advice of its Attorney General. It must be equally unusual for a Government to ignore and suppress all legal advices - oral and written - presented to it. And it surely must create something of a precedent that a Government proceeds, nonetheless, to force through an amendment to a Bill, without debate, on the second last day of term when it knows that a former Attorney General, Mr Justice John Murray of the Supreme Court, the present Attorney General, Mr Michael McDowell, and an independent legal opinion have advised that there could be constitutional difficulties.
Despite the Taoiseach's attempt to waffle his way around the report in yesterday's editions, this is precisely what has happened. Seizing the opportunity presented by Fine Gael last Thursday week, the Fianna Fail/Progressive Democrats Coalition has, knowingly, drawn the guillotine down on an amendment in the Dail which bans the carrying out and publishing of opinion polls in the seven days immediately before polling day. All of its legal advices are that this proposal could interfere with Article 40.6.1 of the Constitution: the right of the citizens to express freely their convictions and opinions, subject only "public order and morality".
The proposing Minister of State, Mr Robert Molloy, maintains that the ban on polls has been considered by the Government on a number of occasions in the last year. How strange that it did not find its way into the Electoral (Amendment) Bill, 2000, when it was first published. How strange that it did not surface when the Bill went through the Seanad. And how opportunistic that the Government only ran with the ban after Ms Olivia Mitchell of Fine Gael proposed it in a Dail committee last week. Then the legal advice was withheld, not just from Seanad and the Dail, but from their prohibition partners, Fine Gael.
This is bad politics and bad law, pushed through in an unseemly scramble to manipulate the nature of information given to voters as they prepare to exercise their franchise. It is not just a vested interest of the media. The Government should know by now that it is the citizens who hold the constitutional right to express freely their convictions and opinions. What must follow is an implied right for the newspapers to publish them.
Opinion polls today are merely a modern tool of political science. They have been used in general elections over the past 20 years. They have never been shown to have distorted the results. They are, in fact, the most independent material to be put before voters towards the end of a campaign as truth often becomes the casualty of the spins of politicians and parties.
The Taoiseach insists that the Bill will not be revised. Mr John Bruton, a member of the Council of State has suggested that the President, Mrs McAleese, should convene a meeting to discuss it. The National Newspapers of Ireland has decided to petition the President to exercise her powers to refer the Bill to the Supreme Court for a test of its constitutionality. In all of the prevailing circumstances, this would be a wise move. The Government's speed to suppress opinion polls stands in sharp contrast to its paralysis on reforming the laws of libel and contempt.