The Government was warned by the Attorney General and by an independent legal expert that a ban on carrying out and publishing opinion polls in the seven days before a polling day could be unconstitutional.
Yet it proceeded yesterday to amend the Electoral (Amendment) Bill 2000 to introduce such a prohibition. The Bill will be debated in the Seanad next week.
It has been confirmed by The Irish Times that Mr Michael McDowell agreed with the advice of a predecessor, Mr John Murray, that the banning of polls could cause constitutional difficulties when the issue came before the Government last Tuesday. Mr Murray's advice was given to former minister Mr Padraig Flynn in 1991, when a similar proposal was initiated. The matter was dropped at that time on constitutional grounds.
Members of the Government told Mr McDowell that unless he was certain that the prohibition was manifestly unconstitutional, they intended to proceed with it. It is understood that he then sought a second legal opinion from a constitutional expert outside the Attorney General's Office. Mr Gerard Hogan SC, a member of the Constitution Review Group, also advised the Government that the banning of polls could be unconstitutional.
The constitutional provision at the centre of the Government's legal advices is Article 40.6.1. This guarantees liberty for the exercise of certain rights "subject to public order and morality", including "the right of the citizens to express freely their convictions and opinions".
In the amendment to the Electoral Bill, passed in the Dail last night, a person is prohibited from carrying out or publishing an opinion poll on any of the seven days immediately preceding polling day of an election or referendum.
An opinion poll is defined as a systematic inquiry conducted by means of questioning a sample of persons considered to be representative of the population of the State or any part thereof. Telephone polls, or responding by any other means of communication to one or more questions, the purpose of which is to ascertain opinions, are also banned. A person found guilty of an offence under the Bill is subject to a fine not exceeding £100,000 or up to two years' imprisonment.
The amendment was forced through the Dail yesterday without discussion.
Earlier, the Labour Party had attempted to have the Bill sent back to committee for further debate, saying that because the Government had guillotined it, there was no hope of there being enough time to discuss it in the Dail chamber.
Last Thursday, Labour's environment spokesman, Mr Eamon Gilmore, said that he supported the ban, which had been proposed as an amendment by Fine Gael during the committee stage of the Bill. However, the party leader, Mr Ruairi Quinn, opposed the idea when he spoke after the Tipperary South by-election result on Sunday.
Mr Gilmore said yesterday that since Mr Quinn was party leader his view on the matter prevailed.
The amendment was not reached during the 11/2-hour debate yesterday afternoon. At its conclusion there was an omnibus vote and the Bill was passed. The Opposition parties voted against the Bill.
The Green Party said yesterday that it was against the proposed ban. It described it as a "rash decision and an infringement of basic civil rights" which was "fraught with constitutional difficulties".
Fine Gael's spokeswoman on the environment, Ms Olivia Mitchell, who proposed the amendment, said her only worry now was that the Government had not checked its constitutionality. "If that falls, the whole Bill falls", she said.