I beg to move Clause 20. So far as the principle of this Clause is concerned it is one to which we are committed in the Constitution. Whatever may be said for or against the principle of Proportional Representation, it is with us. It has a great many advantages on the surface, and if later on it may prove to have some disadvantages, still it is one which was without dissent adopted when the Constitution was under consideration in the Dáil. So far as General Elections are concerned we have the principle of Proportional Representation. When bye-elections take place, the carrying out of the principle is impossible. Suppose a vacancy occurs in any constituency, and the candidate whose seat is vacated represents a minority. We cannot do anything which will prevent the return of a majority candidate. Consequently the strict principle of Proportional Representation cannot be saved. As the Clause stands it excepts, from the operation of the single transferable vote, bye-elections at which one or two members are to be elected. I think there is a good deal to be said in favour of using the single transferable vote when there are two candidates to be elected, although the Proportional idea cannot be given effect to very well under these circumstances. Where there is only one candidate to be elected it is preferable not to have the transferable vote, for this reason: If a minority candidate dies or resigns and you have a single transferable vote, then beyond all doubt the candidate not representing that party will be returned. If you use the old system of voting—and it is not necessary for this purpose to make an "X" on your paper, as the figure 1 will do as well—then occasionally, things will be evened by a minority candidate slipping in. As long as we have bye-elections, and do not cause all the members for a constituency to retire and re-present themselves to the electors when a casual vacancy occurs—as long as we have bye-elections for a single member of the constituency, the scheme of Proportional Representation is bound to fail to some extent. The law of average will insure that in most cases the vacancy will occur in the ranks of the majority party, and in most cases under the old system of voting a majority candidate in any constituency will be returned; but there will be frequent vacancies in one or other minority party, and as far as at least single vacancies are concerned, if we keep to the old system of voting, we will preserve the general scheme of Proportional Representation a little better. At times, and perhaps fairly frequently, a candidate who is representing a party in the minority in the constituency will get in through division in the ranks of the majority party or the two wings of a party that may otherwise coalesce against that majority party. I think it gives a chance of evening up under the scheme of Proportional Representation, and that as far at least as single vacancies are concerned the old system should be retained. As far as double vacancies are concerned I think it is a border line case, and that possibly the advantage is even in favour of the transferable vote.
DÁIL IN COMMITTEE ON ELECTORAL BILL. - PART III.—METHOD AND COSTS OF ELECTIONS.
An amendment has been put down in the name of Deputy Darrell Figgis to delete the whole of this clause.
Deputy Darrell Figgis is unable to be here. Last evening he arranged with me to move these amendments on his behalf. Shall I move for Sub-clause 1 merely? Deputy Darrell Figgis proposes to omit what is in the Draft, and to substitute:—
"At a contested election for a Parliamentary constituency, each elector shall have one transferable vote, and where there are two or more members to be elected the election shall be according to the principle of Proportional Representation."
That differs from the original in a few respects. Instead of speaking of an election for members to serve in the Dáil it speaks of a Parliamentary election. Evidently Deputy Figgis considers that by introducing the word Parliamentary election he keeps this Clause in harmony with the other Clauses in which a distinction is drawn between election to the Seanad and election to the Dáil. Personally, I would like, speaking on my own behalf, to point out that there is a wrong conception here, because the second Chamber is a part of the Oireachtas and consequently an election for that is unquestionably a Parliamentary election. So I formally have moved this Sub-Clause I on behalf of the Deputy, and I hope it does not interfere with my right to criticise it.
Except for wording and for the use of the expression Parliamentary constituency this sub-clause proposed by Deputy Magennis seems to me to be identical with the proposal of Deputy O'Brien, which is merely to substitute a two member vacancy for a vacancy for more than two members. It seems to me that as that is the sole effect and as the Deputy who moved this amendment disapproves of the expression "Parliamentary constituency" it would be desirable to take Deputy O'Brien's amendment. We can then consider Sub-Clause 2 afterwards. Does Deputy Magennis agree?
The amendment in my name, a Chinn Chomhairle, deals with where there are more than two candidates even for one seat, whereas the amendment in the name of Deputy Figgis deals with where there are two vacancies. My amendment is of a wider character, I think.
Oh, yes it is. I see now.
I am glad to hear that the Minister, while not accepting this gives it a certain amount of support and is prepared to concede at any rate the method of voting in bye-elections, namely, by numbers instead of the old system of the X, and that is a gain and an advantage. This willingness to concede and admit the proportional system where there are two vacancies is also an advantage. We think still it would be better if this amendment could be embodied and ensure that a minority candidate would not be elected. We think, on the whole, where there is a bye-election that while it is quite true to say that nothing could prevent a majority candidate being elected, if the old system is adhered to, that it is quite easy and frequently happens that a minority candidate is elected, when there are two, three or more candidates, which I think is undesirable. I think there is a fair case for accepting such an amendment as we have put down. Of course we all admit that the principle of Proportional Representation has got to go by the board in casual vacancies. There is no method that we know of that can be devised except the system of co-option or something of that kind, or a recognition of the right of the Party of which the retiring or deceased Deputy was a member to put forward a candidate, and there are difficulties about that. Having regard to that I move the amendment standing in my name, but if it is not carried we will recognise the concession which the Minister has outlined.
I am afraid I misled the Deputy. I had overlooked the point that Deputy O'Brien's amendment dealt with an election at which there were more than two candidates for a single vacancy, and therefore I think we shall have to take the amendment moved by Deputy Magennis as it stands first.
I think it would be an advantage if, in discussing this question henceforth, we should use the term "single transferable vote" when we are dealing with the method of taking an election. I think it is unfortunate that the drafters of the Constitution should have embodied the phrase—I think it was imported from the P.R. Society in London—"the principle of proportional representation." Now, there are a dozen methods of attempting to achieve proportional representation. The principle of proportional representation might be very well to speak of when we are dealing with the election of a Parliament, but when we are dealing with the election of a single member, or even two members, it is not right to speak of the principle of proportional representation. The method of the single transferable vote would more accurately describe it. In dealing with the relative merits of the single transferable vote or the non-transferable vote method in bye-elections it has to be borne in mind that the chief value of bye-elections for a Parliament, especially in the case of a Parliament which will only live for four years would lie in the index of public opinion on current questions. It is not so much a matter of getting a particular person elected as the index that it gives of the trend of public opinion. In such a case it is unfortunate, where there may be three or four candidates for one seat at a bye-election, that the minority man should be returned, and that the test of public opinion is thereby hidden. Now, the single transferable vote method, even in the case of three or four candidates for one seat, is a better means of indicating that public opinion than the old system. In the great majority of cases, from past experience, and I think even from future experience, where the single transferable vote method is adopted at bye-elections, there will only be two candidates, or at most three. In such cases, if the single transferable method is adopted, you are going to get a better answer to the question, "What does that constituency think upon the main issue of the day?" than by the old system. If there are only two candidates, then no question arises. If there are three candidates, it is better that the bottom man should be eliminated, and the test as between 1 and 2 should be contested at the first election. If we are not going to have this method, we ought then to adopt the second ballot; but the second ballot is cumbersome, and it is gradually being dropped in favour of the transferable vote in other countries. I would, therefore, urge its desirability, not that it is perfect, and recognising that there are possibilities of mistake, even as there are possibilities of mistake in the system that we have adopted for five or six vacancies, as the risks are very much more minimised by this method of the single transferable vote than by the old method of voting.
This is not a very vital question. I would not like, just now at any rate, to go further than I indicated in the beginning, because I do not find myself in agreement with a good part of the argument adduced by Deputy Johnson. In my opinion, it is when the old system is in operation, and when there will not be more than perhaps two or three candidates put up—as there will not be when the old system is in operation—that you will get a better index of public opinion. So far as that is concerned, I believe that you will get a better index of public opinion—that you can get a sort of yes or no issue—by the old system at a bye-election than you can through the joining up of four or five lines of thought, and joining up for reasons which might be obscure under the single transferable vote system. If there should happen to be a multiplicity of parties there may, if the single transferable vote system were used, be a considerable number of candidates. It is, I think, a fact that can hardly be disputed that after the first transfer or two the vote does not indicate any very strong preference. A person who gives his first preference, gives it generally with some strong feeling and strong ideas in the matter; but the third, fourth and subsequent preferences are given sometimes without a great deal of consideration. I think anyone who has seen a count taking place, and has seen how preferences go will know that the third, fourth and subsequent preferences are given in a very peculiar way. As I say, it is not a matter of very great principle or importance; but I do feel that to adopt the single transferable vote where there is only one vacancy, means that the minority party who may have lost a seat will have no chance of getting it. Frequently minority parties will lose a seat. If you keep the old system a minority party will at least have a chance of getting a seat and the proportion will be maintained. If you adopt the transferable vote for such a vacancy, then the minority parties have no chance, and will be liable to complain that their already small strength in the Dáil is reduced in that way, and the system is such that, in the event of disagreement among the majority parties, they will be able to slip in their candidates, and the arguments that will apply if we have not Proportional Representation, and which would have a great deal of force at a bye-election seem to lose effect. It is very undesirable that, owing to split votes by a large number of voters, minority candidates should have an opportunity of slipping in, and should slip in, in a large number. It is quite a different thing in filling a casual vacancy where the proportion in the Dáil already represents the way the feeling in the country is divided, and when, in most cases, a majority candidate must be returned, it is rather an advantage that sometimes a minority candidate should have a chance of slipping in to maintain the balance. It is not a very vital question, but, without consideration, I would not like to go further than saying that the single transferable vote would be acceptable where there are two vacancies, and the marking of the papers should be such that there would not be two forms of marking, so that matters may not be confused.
The amendment only makes a verbal alteration, that is, substitutes "Parliamentary constituency" for the rather long phrase: "At a contested election of more than two members to serve in the Dáil for any constituency and at a Senatorial election." That seems to me a matter for arrangement when the clause is re-drafted, and the real difference between the clause of the Minister and the amendment proposed by Deputy Magennis for Deputy Figgis, is where you have the words, "two or more" instead of the words "more than two," in the first line of the clause. The Deputy who moves, agrees that this is the substance of his amendment. So I will put the amendment in that form:—"At a contested election of two or more members." instead of "more than two." Therefore, where there are only two members to be elected, the vote by Proportional Representation is brought in.
That amendment now leaves open the amendment which Deputy O'Brien has down on the Paper.
I formally move the amendment standing in my name:—"To delete the words `of more than two members to serve in' and to substitute the words `at which there are more than two candidates for election to.' "
The effect of that amendment would not be to bring in the principle of Proportional Representation by a transferable vote where there is only one vacancy and two or more are proposed.
The next amendment, which applies to Sub-Clause 2, so far as I understand it, merely amounts to eliminating from the draft the italic letters (a) and (b) so as to make the definition of transferable vote read continuously.
It leaves out a passage.
"The expression `transferable vote' "—I am now reading the amendment as proposed by Deputy Figgis, and it can be collated with the rest—"the expression transferable vote means a vote capable of being given so as to indicate the voters' preference for the candidates in order and capable of being transferred to the next choice when the vote is not required to give a prior choice (and so forth as in 20b)." I discover no difference between these two, except the omission from the original draft of the semicolon after the words "in order," and the precluding of any necessity for the indicating letters (“a”) and (“b”). So really it is a verbal alteration of a very slight sort.
That is so. There is no alteration in the words. The Clause is made one single clause instead of a clause with two sub-sections “a” and “b.”
I do not see that it effects any improvement.
Does the Minister consider that it does any harm?
No, but I do not think that is sufficient reason for the change.
Amendment put and negatived.
I move the next amendment in the name of Deputy Darrell Figgis, which is to omit Sub-section 3 of Clause 20 and to insert instead thereof a new Sub-section 3—"Every election shall be conducted in accordance with rules contained in the Third Schedule to this Act." This amendment merely refers to the Third Schedule as containing in globo the regulation, and in so much as it includes more it may be an improvement upon the original.
I think this is an amendment that might be accepted because it is consequential upon the amendment moved by Deputy O'Brien.
I beg to move this clause. It affects the space that shall elapse between the issue of the proclamation and the last date for receiving nominations and the space that shall elapse between the date of the nominations and the poll.
I beg to move instead of the words "eighth day," in Sub-section (1), to substitute the words "fifteenth day," and at the end of Sub-section (1) to add, "and such proclamation shall be publicly advertised in all prominent places." That may call for a definition clause as to what are prominent places.
I really do not know what is the idea; and, in any case, as there is a limited time between the dissolution of Parliament and the date on which the new Dáil must meet—I think 30 days—it is most desirable that all the candidates elected should be able to sit in the new Dáil. There is provision that if a candidate dies before the poll is taken everything should begin de novo; and there is provision for postponing the poll in case of disturbance, or of repeating the poll if a ballot-box is broken. As there is no great argument brought forward for extending the time as suggested in the amendment, it is as well to stand by what is in the Bill.
The Bill proposes that the last day for receiving nominations shall be the eighth after the date of the proclamation, and the amendment proposes to substitute fifteenth for eighth.
Amendment put and negatived.
The next amendment in order is that of Deputy Johnson to delete the word "ninth," and to substitute "a Monday not being earlier than the seventh."
I beg to move the amendment. The intention is to ensure that the General Election shall take place upon a Monday. I am sure that will appeal to any member of the Dáil who may have business of a retail character, and, perhaps, also of a wholesale character. Inasmuch as the election day is to be a general holiday it seems to me that we had better follow the procedure in regard to public holidays, and have a long week end rather than split the week in the middle. The disorganisation which is consequent upon a general holiday, coming in the middle of a week, would be much less if such holiday takes place on a Monday, and the object of the amendment is to ensure that all General Elections shall be held upon a Monday.
That is a matter upon which I have no particular views. I am not sure, even if the amendment is accepted, whether it might not have to be added to a little. I think if the amendment were accepted as it stands it would enable the Monday to be a good deal further on.
It should be the first Monday.
I think the argument Deputy Johnson put forward quite good. There could be nothing against the amendment except the difficulty that, perhaps, returning officers and certain officials might find in travelling on Sunday, but in view of the fact that the Constitution provides that the day of the election is to be proclaimed a public holiday, I think their convenience would be a small matter compared with the convenience of business people and the public generally. I accept the amendment.
I beg to propose the following amendments in Section 21, line 28:—(a) Instead of “eighth day” to substitute “fifteenth day,” and at end to add “and such proclamation shall be publicly advertised in all prominent places.”(b) In line 35, instead of “ninth day” to substitute “sixteenth day,” and to add “and such bye-election shall be publicly advertised in all prominent places within the constituency.”
Amendments put and negatived.
I beg to move the following amendment:— Section 21, sub-section 2(a), line 35. To insert after the words “ninth day” the words “nor earlier than the seventh day.”
This amendment seeks to embody portion of that already carried in the amendment moved by Deputy Johnson, but inasmuch as the day of a bye-election would not be a public holiday it does not embody the proposition regarding Monday. It seeks to prevent the election being held earlier than the seventh day. The same principle is embodied and I therefore move the amendment.
I accept the amendment.
I beg to move the following amendment:—Section 21, sub-section 2(b), lines 40 and 41—“To delete the words `six or more than eight' and substitute the words `eight or more than ten.' ” This amendment is designed to extend the period a little. I think that, as drafted, the number of days ought to be increased from “six or more than eight” to “eight or more than ten.” I think there is an extension of two days called for there, and I move accordingly.
I do not think that this is vital, and unless somebody opposes the amendment I will accept it as I do think it is not of much consequence.
Before we pass from this, would you permit me to remind the Minister of what seems to be an oversight. When discussing the Articles of the Constitution in reference to polling I reminded the Dáil that it is impossible to have polling for University elections on the one day. From the necessity of the case, especially where there are postal votes, the poll must be kept open for several days. We are now enacting that a poll should be on a certain day, and I think it will be necessary for the Minister later on to insert a proviso that this shall not apply to University elections.
Are you moving that as an amendment?
I have not given notice.
In any case it will come up on the schedule dealing with University elections.
I beg to move Clause 22.
I desire to move the following amendment:—Section 22, Sub-section 1, line 53, to delete the words "and by eight other registered electors of the constituency, as assenting to the nomination." Personally, I think there is no need for these eight other persons at the present time. Originally the eight names, in addition to the proposer and seconder, were necessary to assure the electors that the candidate had a certain amount of support, and in a large constituency the ten names would naturally be taken from one particular district. It would require all the resources for the whole election contest to get ten signatures in a large constituency like County Cork, and they would have to travel one hundred miles to make it representative of the whole constituency. I think these names are not necessary and I beg to propose that the clause be amended accordingly.
This again is not a matter that is of very great consequence one way or the other. There is just this to be borne in mind, that the holding of a contest where a contest may be avoided in any case will involve very considerable expense in view of the size of the present constituencies and of the increased complication of counties. This might occasionally prevent some sort of adventurer arriving on the scene at the last moment and going in, as I think has occasionally happened. If such a person arrives he tries to get some sort of reputable people to put their names to his paper, otherwise he will have nothing to recommend himself to the electors, and to ask that there shall be assentors may mean occasionally that an unnecessary and perhaps futile contest might be averted. On the other hand, if a man has real support it is not a hardship to get the assentors. It is a small point, but I think there is some balance in retaining the eight assentors.
That particular point did not strike me and I desire to withdraw the amendment.
I beg to move as an amendment in Section 22, sub-section 3, line 13 and line 14: To add after the word "proposer" the words "and seconder" and to alter the word "him" to "them." The reason I move the amendment is that I think it would be possible in the Sub-section as it stands for one man, a single man, the proposer, to destroy the whole candidature of a candidate. I think that would be possible. I think it has happened, and perhaps it will be in the recollection, especially of some of the Dublin Deputies, that there was an almost classic case of the proposer of a candidate, I think for the Corporation, who by manipulating the thing got himself elected instead of the man he was supposed to nominate. Now that might not have been quite so easy if the consent to withdrawal of the candidature was required by the seconder as well as by the proposer. It is to obviate such a thing as that that I want to insert the words "proposer and seconder." I think the argument applies in almost a reverse way to that which the Minister has used in the case of the eight assentors, and that while one man may be got at, it is a hundred per cent. more difficult to get at two men.
I accept the amendment.
I beg to move the following amendment:—"Section 22, lines 14 and 15—To insert after the words `out of Ireland may' the words `before the expiration of the time aforesaid, but not afterwards.' " The object of this amendment is to remove any ambiguity there may be in the clause with regard to the time in which the proposer might withdraw in the absence of a candidate.
I move Clause 23.
I move to delete the words "one hundred and." This amendment proposes to reduce the amount of deposit made on behalf of a candidate from £150 to £50. In view of the great expense involved in holding elections, we believe that there ought to be some earnest that the candidate has a certain stability and backing, but we think that the amount ought not to be prohibitive, and we, therefore, think that the present deposit ought to be reduced to £50. Prior to the payment by the State of election expenses, when each candidate had to deposit a certain sum to cover expenses, it was strongly objected to, and it was then universally agreed that if the State would undertake responsibility for paying election expenses it would be reasonable for each candidate to lodge a certain deposit beforehand, so as to prove the contest was not a frivolous one, and that the person proposed had the necessary backing, and this would be made good by a deposit of £50, and I accordingly move that the present sum be reduced to that figure.
This is one of the cases where it is impossible for me to meet every point of view. It may be hard enough on certain candidates, quite genuine candidates, to make arrangements for the deposit of this sum, but on the other hand any less sum would probably not be a sufficient deterrent. If we made it £50, having regard to the reduced value of money at present, there are plenty of people to whom £50 would be very little to forfeit for the pleasure of running a fake contest. Any candidate who is elected, and takes his seat, has his money returned. If he withdraws before the election, finding that he is not likely to receive support, his money will be returned, and as we intend to amend a subsequent sub-section, if at any time during a count he gets a number of votes amounting to one-eighth of the quota his money will be returned. That is to say, where there are three candidates, if he gets 1/32nd part of the number of votes at any time during the count, his money will be returned, so that as the clause stands there is very little danger of a genuine candidate, not a freak candidate, who has some sort of indication of support from the constituency, being mulcted. The only cause of complaint would be that it might be difficult for some genuine candidate actually to get possession of the cash for deposit. Then we have to bear in mind that probably the number of poor men who would be run independently, shall I say, without an organisation, would be very small. I can see that a Labour candidate might not find it easy to raise £150, but a Labour candidate would have the support of Labour organisations before he thinks of going forward, and in view of the fact that a genuine candidate will not be mulcted, and that the only question involved that can be criticised is the difficulty that might be imposed on some people of finding the money, I think that it is preferable to retain the sum of £150 rather than to reduce it to a sum so small that many people might feel that it was no deterrent to their going forward.
Would the Minister be disposed to accept a figure between that mentioned in my amendment and the figure in the Bill?
We would be prepared, I think, to consider that. The real point at issue is that the smaller the sum is made the easier it is put within the power of an organisation of any sort to run candidates who would cost the State a good deal of money and might not give a profitable return. Two or three thousand pounds might not be much to an organisation of wealthy people and might create turmoil, cost a lot of money, and so on, and the only point we have in view is how far it is possible to regulate these elections. I presume that is the general intention of all the Deputies. If we think that £150 is an oppressive amount we would be prepared to consider it, but it is our deliberate view, having regard to our experience of electioneering, that it would be too small, and it would not really mean what we have in mind, that is to have the elections really fought on a bona fide basis. However, we will consider it before the Report Stage.
Might I suggest that the wealthy organisation will not be deterred if it wants to run propagandist destructive candidates, by the difference between £50 and £150, especially in view of what the Minister stated that if a candidate is going to receive 1/8th of the votes in a three or four-member constituency the chances of his being returned are very good. On the other hand the difficulty arises in the case of the poor man collecting a large sum by the day of the nomination where there is no wealthy organisation with money available. The money has, as we all know, to be collected by the constituency. Now opportunities for collecting in the constituency do not usually arise before the nomination day. It is really after the election has begun, after the enthusiasm has begun, that the money is collected, and the very fact that money is paid in that way is an assurance of some popular support. In some very large constituencies there may be two, three, or even five or six of some party nominated, and the money has to be derived from the same people, unless they are wealthy supporters, and you are multiplying the sum required by the same proportion as you are multiplying the size of the constituency. With a constituency of six members you might easily have fifteen candidates and the collection, shall I say, of £150 for each of these candidates is a very big obstacle, and while it can be done during the election and after the election, to do it before the nomination day is a considerable difficulty and rather too big a burden to put upon candidates. I would urge that favourable consideration of the matter be given before the next day.
While I do not think we would at any time agree to a sum as low as £50, I will undertake to consider whether or not we could agree——
It must be borne in mind that it might be easy enough to collect £50, or, say, £100, for the purpose of scoring off a man, either up for election or standing for re-election. Everybody understands that nearly everyone is your friend before an election, and a time comes when you must vote for either one side or the other, and your friends naturally divide when that happens, and some promise to make that a test question at the next election. If it were £50 I am positively certain you would get one man in each constituency who would, because A. was not appointed to a position, or B. was dismissed, or C. got a contract that should have gone to D., or something like that, come forward. I am sure that, while we welcome constructive criticism of every sort, it is a mistake to allow elections to be used solely for the purpose of destructive criticism, and to make it almost impossible for new men to take up their seats here as members of this body through being afraid to exercise their opinions on occasions that could be described by the word "crisis." From that point of view I think, although it does appear to be a large sum, and although in the 1918 elections it appeared to be colossal, after all, with a sound body of opinion behind any prospective candidate at an election, it is not as difficult as it appears to get that sum; and, at any rate, it certainly keeps out the candidate who only comes forward for, say, muzzling, or something of that sort, or the fairly well-to-do individual, who for one cause or another has a complaint against either a Party or a man, and would exercise his entire spleen in the particular constituency in order to oust a man who may have done his duty well.
I desire also, on the lines of the President, to beg both the mover of the amendment and the Minister to consider that—although it does seem more in harmony with democratic views to seek to reduce the amount, when one comes to consider the possibility of syndicates operating to destroy the healthy expression of individual opinion—it is quite possible to defeat in the various constituencies Independent candidates merely by brute force and the expenditure of money in this way by running a large number of candidates so selected as to deflect from them that support which they might reasonably otherwise have got. Therefore, I think in the name of democracy, though it sounds paradoxical, I would ask the Minister to keep the figure at its present sum.
Does the Deputy desire to press his amendment to a division, or does he accept the offer of the Minister?
I accept the offer of the Minister, and I withdraw the amendment.
I move the following amendment:—
To delete all words after "candidate," and to substitute the words, "is withdrawn, the deposit shall be returned to the person by whom the deposit was made, and if the candidate dies after the deposit is made, and before the poll is closed, the deposit, if made by him, shall be returned to his legal personal representative, or, if not made by him, shall be returned to the person by whom the deposit was made."
There are, I think, two objects sought to be attained by this amendment; first to ensure that the deposit shall be returned to the person making the deposit. As it stands the deposit must be returned to the candidate. I think it will be agreed generally that the person making the deposit on behalf of a candidate— if all the other procedure is gone through —should be the person to whom the deposit is returned. The second point is the deletion of the word "next" on line 44, and the substitution of the word "closed." The point of that is, that in the course of an election, on the election day a candidate may conceivably die at say, 11 o'clock in the morning. The electors learn of the death of the candidate, and consequently they will not vote for that candidate, and he may then not receive the small proportion that is requisite to secure the return of the deposit. My proposal is to see that the poll is concluded before that question arises. I do not think these require much argument.
I think the amendment proposed is quite a reasonable one, and I agree to it.
I move an amendment to Section 23, line 58, that after the words, "number of votes," to omit the rest, and to substitute "shall be the highest number of votes credited to him at any time during the counting of votes." I notice that in the following amendment something of the same kind is to be moved by Deputy Duggan whom I may, perhaps, describe as the Minister for Official Amendments, which he does with great tact. I presume, however, the principle underlying is the same as the principle underlying mine. I take it, therefore, that, whatever form of wording shall be deemed the best that the principle is accepted.
I think the principle is the same, but where the official amendment is better than Deputy Figgis's is that in one matter it is more precise. Votes might be, perhaps, wrongly or accidentally credited to a candidate in the course of an election, or might be credited to him in some way through neglect to observe precisely the rules, or in some other irregular way. That point is covered by the proviso in the official amendment.
I think the point made by the Minister is a very sound one, and I withdraw my amendment in favour of the other.
I move my amendment "To omit the words `Number of votes polled by him as first preference' and substitute the words `greatest number of votes at any time credited to him in accordance with the Rules contained in the Third Schedule to this Act.' "
I am inclined to think that ought to be subject to re-consideration. It is a very big principle to give away, that is just right now, and having regard to the number of preferences, and so on, I do not know that the Dáil ought to pass that. I think, while agreeing to the amendment being passed now, that it ought to be subject to re-consideration on the Report Stage.
What is to become of the deposit of a condidate in an election which is not conducted according to the system of the single transferable vote? Provision requires to be made for that contingency, and that might be taken into account when this Clause is under review.
In view of what the President has said, and seeing that there was an official amendment covering the same ground, I did not put forward any argument in favour of my amendment. It did occur in one definite case during the last election that two persons stood for election and they happened to be Panel candidates. One did actually happen to get returned, but had he ten votes less he would not have been returned. He got very few first preferences because he did not happen to be the most popular candidate on the particular party ticket. He was clearly such a person as should have received his money back under the conditions imagined in this Electoral Law; he did not get the first preferences be cause he did not happen to be the most favoured candidate on the party ticket. There is indicated a clear hardship and injustice that it was the intention of my amendment to remove, and it was the intention also of Mr. Duggan's amendment. I agree that it should be open to reconsideration, while being accepted now, but I think that in the reconsideration the amendment should be accepted.
I gather the President does not object to the removal of the words "that the total number to be taken into account is the number of first preferences." I think we are all agreed it would not be fair to take that.
The only thing, then, is what number shall be taken into account. Sometimes, as in a constituency which I have in mind, the result was reached before all the votes cast in favour of the candidate came to be reckoned. Had the counting gone a stage further, the candidate would have a greater preponderance of votes. In such a case as that, for the purpose of this calculation, what is really the total secured does not go to his credit, whereas in a constituency where a number of members are to be returned, the counting may go on until the fifth preference has been reached, and if those are to be calculated, it is doubtful if in such a constituency anyone could forfeit the deposit. I think the consideration which weighs with the President is that we may, in the case of large-member constituencies, be providing for the return of all the deposits, whereas it is precisely in such constituencies that the safeguard against freak candidates and engineered candidatures should be provided.
I am rather surprised that Deputy Figgis, in urging this amendment, cites a freak election. I am positively certain you will not have Panel candidates at the next election.
Something just as good.
You will have candidates of independent selection, and I hope you will not have any candidates who will be subjected to outrage at the next election. I think there should be a certain respect for members standing for election. They should be free from any odious attention. I do say in this particular instance there were three candidates from the one party going forward for three seats. If the third candidate had not been returned, the total expenses, which I presume would have been borne by the three candidates jointly, would be £50 each. I expect they would pool their misfortunes while sharing their fortunes. Is that too much money to ask where three members stand for one party for three seats? It is not put forward by Deputy Figgis that it is an injustice because the third man manages to get home with a few votes to spare. That is a poor example to put forward, and if there be no better case to urge against the retaining of the deposit, I am certainly against it. Are we going to see that every single deposit that is lodged at an election is going to be returned to the aspirant for election? That is not the idea. The idea is to see that a person standing for election has 1/8th of the total votes, multiplied by the number of candidates. Where there are six seats, that would mean 1/48th of the total. Is that too much to ask—1/48th of the number of first preference votes at the first count? Members, as far as I know are not quite au fait with this matter. I was not a child in the matter of elections years ago. Take the case in point. The number of first preference votes received by the particular candidate in whose interest the Deputy was speaking, was 1/24th of the whole. That is not too much, and if he is not able to get that number, he certainly should pay.
I join with the President in his hope that at no future elections will there be candidates who will be outraged. I go further and express the hope that at no future elections will there be candidates whose candidature itself will be an outrage. I take that particular instance as a specific instance, but the general case is true. It may, however, frequently happen that the second name or third name in a Party ticket—and we will unfortunately in future have Party tickets—it may happen that the second may not get any first preferences at all. He may just miss election, and it is to remove that injustice without any specific case that this amendment was put forward.
As I understand it, the President accepts the amendment of Deputy Duggan with the reservation that it may be considered and brought up again on Report.
I move "To delete all words after `shall be' and to substitute the words `returned to the person by whom the deposit was made as soon as practicable after the result of the election is declared.' " This is an amendment rather of substance. The intention is to undo the bad work which was the result of spite and spleen in the House of Lords against the Party of which the President was at that time, and is still, an exponent. The Bill was very badly mauled by the House of Lords, which insisted that no deposits shall be returned until the member had taken his seat. That was obviously intended as a penalisation of members of one Political Party in this State. I do not think it would be a good thing for us to carry still further that bad example, and the proposition is that the deposit shall be returned to the candidate who is elected as soon as practicable after the result of the election is declared. I venture to think that that amendment will not be seriously opposed. I am asking the Ministers to accept it.
I would not be prepared at the moment to accept it. On the other hand I do not want finally to turn it down. If the Deputy would be satisfied I would undertake to consider that matter and if we found we could accept it to bring up an amendment to that effect at the Report Stage.
I am prepared to withdraw it in the meantime under these circumstances.
I am moving to delete Sub-section (6). I have no very strong feeling on the matter. If it was not likely to be accepted I would not press it. The reason it has been proposed is briefly this:—According to the provision of Sub-section 6, if the candidate stands for more than one constituency he has only his deposit returned for one of the elections for which he stands. It is thereby intended that this should be a deterrent against a candidate standing for more than one constituency. The purpose of that is one with which I entirely and heartily agree, because a candidate should only stand for one constituency, but it does occur to me that it is penalising the poor man, and thus may be a certain advantage in favour of the rich man or the rich party who are willing to do this. If it is going to be returned in any one case the position should be that if a candidate, no matter where else he stands, should get enough votes, his money should be returned. It is a matter that is worthy of consideration, and it is in that light that I put it forward.
We would not be inclined to accept it. We used be amused by seeing accounts, I think in the Belfast papers of a gentleman who, every time an election to the Belfast Corporation was due had himself nominated for every ward in the city, and received a few votes in each ward, and, perhaps, amused the city, but it also cost the city and other candidates something. It may have been a good thing for them, but it is not a sort of amusement we would like to encourage. In view of the fact that the number of votes required to get the deposit returned will be small, and any gentleman such as that need incur no expense in the matter of election literature, he could have his name put up for quite a number of constituencies, and he would possibly in each of them get enough votes to have his deposit returned. In any case it is most desirable that a candidate should stand for one seat, and that if he cares to indulge in the luxury of standing for a number of seats then he should be prepared to pay for that luxury.
I do not press the amendment.
Before the entire clause as amended is put, I would like to repeat my question. I do not think it was answered—as to whether or not the Minister is prepared to reconsider what is set out here in the matter of the return of the deposit in the case of an election for only one seat. You will notice that the wording covers the cases of bye-elections as well of elections. In Clause (4) it provides that the deposit is to be returned unless the number of votes polled by the candidate does not exceed in the case of an election of one or two members one-eight of the total number of votes polled. Now suppose in a six-member constituency in which a bye-election for one vacancy occurred, it might be very difficult for the candidate who was really a bona fide candidate in the best sense, owing to certain combinations, to get one-eighth of the total poll in such a huge constituency. That is the way it presents itself to me, and I would like the Minister to consider that when the whole Clause is being considered.
I will consider that matter.
I move Clause 24.
There is just one suggestion, that the contrast of Parliamentary or Senatorial elector is hardly justifiable, because the Seanad is a part of the Oireachtas, as I pointed out earlier, and any election for the return of a Senator is strictly a Parmentary election.
I think we discussed that matter yesterday, and if some good name were put forward we could adopt it through the whole Bill, if it were something that would commend itself to the whole Dáil.
Would it not serve the same purpose, if the words Seanad and Dáil were for the purpose required accepted as adjectives, though they are not, and talk about a Dáil Elector and a Seanad Elector?
That is a question which I am afraid must be reserved for either the Ceann Comhairle or the other Deputy. I am not competent to advise upon it.
We might do that by trying to come to a decision before the next stage of the Bill comes on.
I do not know what the view of the other University representatives may be, with regard to having two types—postal electors, and others. It seems to me that it would be very much better if in the case of University elections it were all done by post instead of having this division. I keep a fairly open mind on that.
I move Clause 25.
There is no amendment to this clause.
I move Clause 26.
I move an amendment which is merely a correction of a clerical error—"to omit the words `Under-Sheriffs' and substitute the words `the Under-Sheriff.' " The object of the clause is to provide in the case of a constituency in two or more counties that the Returning Officer will be "Under-Sheriff" appointed by the Minister.
I move Clause 27.
It is stated in this clause: "It shall be the duty of the returning officer for each constituency to conduct every Parliamentary election in that constituency according to the rules contained in the Third, Fourth, and Fifth Schedules to this Act." The Minister will remember that, in the case of University constituencies, elections are to be conducted according to Schedule 2 as well as Schedule 3, which sets out all the requirements of proportional representation, so that I think the clause needs some slight revision.
I will move whatever amendment may be necessary on the next reading.
I move Clause 28.
Here again, sir, there is a slight conflict between the provision made for payment or part payment of expenses in the case of the ordinary election and that provided in Schedule 2 for the University election. I think it is hardly fair to put more expense upon one constituency than upon another. I make that plea more particularly after having tried to move the pity of the Dáil in favour of the National University in its depleted resources. I would suggest that the cost of the election should be borne in the case of University elections by the State.
As regards University elections, there was a concession made in the matter of printing and postage which I think meets the just claim of the University.
I move the amendment standing in my name: "To omit the words `consolidated fund,' and substitute the words `central fund,' and that is a necessary correction.
I move Clause 29.
There is an amendment standing in my name, "to omit the words `on both sides,' lines 12 and 13." The sentence reads, "at the time of voting, the ballot paper shall be marked on both sides with an official mark." All the precautions that are necessary should, of course, be taken. Those of us who have had some experience, salubrious and otherwise, of elections, know that there are a number of papers always that are spoiled, because of not having been marked. At a busy time of the day, or near the close of the poll, the Returning Officers and Presiding Officers very frequently omit to stamp papers, where they have not stamped them on the back. A paper that is already stamped should be quite sufficient, without requiring it to be stamped on both front and back. I think it is an unnecessary precaution adding a certain amount of confusion if there should be any busy period at any time of the day. I think it would tend to simplicity while ensuring all the necessary safeguards if it were required that the ballot paper shall be marked with an official mark, without saying that it shall be marked on both sides of the paper.
I think, as long as the principle of using a stamp is maintained at all, it must be on both sides. It must be on the back to enable the Presiding Officer to see if it is stamped when it is being put into the box, and it must be marked on the front so that when the votes are being counted it can be seen without having to look at the back. The difficulty would be met if some embossing or perforating stamp were used.
Is it not the custom to use an embossing stamp? I thought that was a general rule.
My own experience is that it is not. I do not know really what is the general rule, but it would be a good idea to have it a general rule.
I suggest that Deputy Figgis would put that forward as an amendment—that it should be an embossed stamp.
I accept that entirely. It would meet the point. Very frequently it is not an embossed stamp.
There certainly should be something done from what I saw in the Kilkenny election.
What did they do there?
There were about 20 men with glasses looking to see whether there was a stamp on it or not. It was simply disgraceful.
Some precaution or safeguard ought to be inserted in the Bill for dealing with persons employed at an election who do not carry out their duties. I can bear out what Deputy Gorey said in regard to the recent Kilkenny election in that particular. The number of papers that came in that were perfectly legitimate votes, and that were cancelled by reason of the fact that there was no stamp on them, I am sure, would be about 500. That, I think, is not a good reflection upon either the machinery that is put up, or the means taken to prevent such things as that happening. I think there ought to be some arrangement tacked on to this Bill whereby any person failing in his duty at an election would be warned off the course, as it were, or warned off election work for life, and not subsequently allowed into a polling booth for the purpose of discharging any duty. It is not too much to ask that whoever is engaged in an important office in the case of an election should discharge his duty. It is possible that sitting there for twelve hours persons might get tired. If they do there ought to be provision for allowing somebody else to do the work, and if they are likely to get tired some persons ought to be appointed who will not get tired. At any rate, I think, that where large numbers of votes like that are cast and are subsequently disallowed by reason of the inefficiency or inattention or the neglect of an official that that official should be open to prosecution.
That point might be met, perhaps, by some amendment in Clause 39 when we come to it. That clause says:—"Every returning officer, presiding officer and clerk who is guilty of any wilful misfeasance or any wilful act or omission in contravention of this Act shall, in addition to any other penalty or liability to which he may be subject, forfeit to any person aggrieved by such misfeasance, act, or omission, a penal sum not exceeding one hundred pounds."
I do not know whether it is covered to some extent by "wilful," but, perhaps, that clause could be strengthened.
This is very important. The method is everything. It is not good enough to be putting a ballot paper into something to give an impression. If the impression comes up it is all right, but sometimes the papers come out without any impression at all. The experts ought to be able to devise some method whereby proper machines would be available.
I believe in the majority of cases where negligence had occurred there is a good deal of excuse for the officer. At one election, for example, it happened to be the South Armagh election in 1918, there was a rush on the poll at about 7.30 p.m. I happened to be in the booth at the time and the officer was stamping the papers in great haste. I noticed that in several cases he turned over two papers instead of one at a time, and I pointed it out to him. It was merely owing to the speed at which he was going. I think the whole thing would be improved if the Minister would accept an amendment, if I may be permitted to withdraw mine, to substitute words like this, "the ballot papers shall be embossed with an official mark."
I think something like that would meet the case, but we had better put it in at a later stage.
Another point to be borne in mind with regard to this is that, whether from negligence or indifference or some spite against the particular candidate, occasionally a man's name is almost erased from the ballot paper by the stamp that is put on it. The thing that struck me about it was that it was not a fair method at all. It may be the first name that the stamp would be put on. It might be put opposite the name that one would wish to vote for and you have to mark the X over it. They are stamped in every conceivable way and it is certainly not a satisfactory method and it ought to be improved on the next stage of the Bill.
That could be obviated by having a printed ring for the official stamp apart from the body of the ballot paper.
I think the question of having a perforating or embossing stamp should be taken up.
I think the remedy is to put in proper personation agents to see that the official carries out his work. Deputy Figgis speaks about being in a polling booth in Armagh. He had no right to be in a polling booth. If the officer was doing his duty he would not find out whether the officer used the stamp or not. I think we sent some recommendations from the late Commission to the Minister which will meet that. If they procure a proper stamp that will go right through to save the officer from turning over the ballot paper and stamping it front and back it would prevent that. You can get a machine of that kind. I saw some of them—I think it was in Clare—with two prongs which go right through the paper, so that there is no difficulty about it. That could be easily provided. I think when you get the report from that Commission that there will be no necessity of talking about how ballot papers are stamped.
Certain officers who were employed at the last election abused their position so much that they absolutely refused to stamp these papers. I consider that these men should never be employed in a polling booth again at any future election, whether Parliamentary or otherwise. Those could be traced through the officers in charge of the areas and such blackguardism put a stop to. Such officers should never again have any control over any future elections in Ireland.
Knowing the weight that Deputy McCarthy's views will have with the Minister, I just want to draw attention to his suggestion that candidates should have proper personation agents in the booth. You might have twenty or thirty candidates, and it is not physically possible for all these candidates to be properly represented in the booths unless Deputy McCarthy devises some ways and means of getting over that difficulty.
We have done that.
I am very glad to hear that. The report of the Committee that Deputy McCarthy speaks of should be circulated as soon as possible with a view to helping the discussion of this Bill.
The report is with the printers.
I should like to say, seeing that I have been referred to, that I was at that particular polling booth as a sub-agent on a warrant authorised by Deputy McCarthy.
It was more irregularism. I never remember signing that.
Are you withdrawing the amendment.
Yes, on the understanding that the Minister will consider it.
I beg to move to delete the words "to which the principle of proportional representation applies." This amendment is consequential on Amendment No 2 already adopted, and I formally move it.
I beg to move to delete Sub-section 5. This is also consequential.
I beg to move to insert the following sub-section after Sub-section 5, line 44:—"(6) At a referendum any ballot paper (a) which does not bear the official mark, or (b) on which votes are given both for and against the Bill, or (c) on which anything except the said number on the back is written or marked, by which the voter can be identified, shall be invalid and not counted” It is a consequential change in the wording. The object of the amendment is to make provision with regard to spoilt votes at the referendum. This provision had been omitted from the Bill as drawn.
There is just a point of order I would like to raise. Standing Order 58 sets forth than on Friday Ministerial business shall cease at six unless some agreement is come to. I think the Dáil would be agreeable to go on for an hour and then take the adjournment.
I would be agreeable to adjourn at seven, or when the amendments are finished with.
(1) After the close of the poll the ballot boxes shall be sealed up so as to prevent the introduction of additional ballot papers, and shall be taken charge of by the returning officer, and that officer shall, in the presence of such agents, if any, of the candidates as may be in attendance, open the ballot boxes and ascertain the result of the poll in accordance with the provisions of this Act and the schedules hereto, and the rules and regulations made hereunder, and shall forthwith declare to be elected the candidates or candidate who are or is ascertained in manner aforesaid to be elected and return their or his names or name to the Clerk of the Dáil.
(2) The decision of the returning officer as to any question arising in respect of any ballot paper at the counting of the votes shall be final subject to reversal on petition questioning the election or return.
(3) Where an equality of votes is found to exist between any candidates at an election to which the principle of proportional representation does not apply, and the addition of a vote would entitle any of such candidates to be declared elected, the returning officer, if a registered elector of such county or borough, may give such additional vote, but shall not in any other case be entitled to vote at an election for which he is returning officer.
I beg to move Clause 30.
I have an amendment which reads:—Instead of the words "in the presence of such agents, if any, of the candidates as may be in attendance," to substitute "in the presence only of each candidate, and not more than one agent of each candidate, where such shall be in attendance." I am not quite sure whether the amendment as I now propose it goes far enough. I think it is inevitable and necessary however. The necessity for this was brought home to my attention at the recent election when the boxes were being opened. It is true it was impossible to identify any one vote as given by any one voter. It did happen that when a certain box from a particular district was opened, party agents were standing around, and one party stated: "We will find out how this district is going" and when the district did not "go" as the various agents desired "to their hearts desire," as Deputy Magennis said, the remark was made "we must follow that district up." There is a case where the intention of the secrecy of the ballots is voided with regard to a whole district, and I think the right course to adopt is only to allow each candidate with his agent or one agent for the candidate.
Does not the amendment imply that the candidate must be present? You cannot put that into an Act.
I hope this amendment will be rejected. It is impossible for one man to keep tally with the votes and see how one district has voted. I tried to find that out and failed. It is utterly impossible for one man to check the officials at a table where there are such a large number of votes. You are only counting the votes to see they tally with the Presiding Officer's return. It would be a very quick man, a man quicker even than Deputy Figgis, who could find out how that district goes. What you want is to have your man there to see that the votes are counted in proper order.
Am I to understand that in some cases a district is counted separately?
If it is only a question of the tally, I do not see how they could find out. In one district, namely Kilkenny, they were all put into one heap and no one knew how a district voted.
I have only attended one count but I certainly see it would not be possible to have a proper check on the counting if there were only one agent, and I may say only the presence of an agent is spoken of. There is a subsequent Clause which renders this amendment unnecessary.
Deputy Figgis' experience in electoral matters seems to approximate very closely to Samuel Weller, Junior, whose experiences were extraordinary and peculiar. It is an extraordinary thing that, according to the Deputy's own confession wherever he has been present, there have been most extraordinary irregularities. With regard to Deputy Johnson's amendment, it seems to me that his objection is sound because the amendment makes it imperative on the candidate to be present in places where he could not possibly be, and so he makes regulations for having his agent present.
I do not press the amendment, but I do take this opportunity of saying that it was impossible to have gone to any polling booth in any recent elections without having seen things that were very peculiar.
I would like to draw attention to the matter of the presence of such agents. In the first P.R. elections that were held in Dublin, the agents were all kept outside the barriers, about ten yards away from the counting, and in justification of that the law was quoted for us. I was present, and I refused to go out, and the police were brought in. That was in the time when Mr. Campbell was Town Clerk. I believe that is changed now, but in some cases barriers are put up to prevent the agents seeing the voting papers. The agents are entitled to see them. If they were not it would be quite possible for officials to produce a different result and return from what the views of the electors had expressed. The original No. 1 Preferences ought to be brought to the barriers if you will, where the agents are, so that they can check them. If you get No. 1 all right, there is very little danger about the others, but if they are not allowed to see No. 1 there will be danger that the opinions not of the voters but of the agents will be recorded.
I think we could make an amendment in one of the schedules that will make that quite clear.
I beg to move this clause.
I beg to move this clause.
I beg to move an amendment to delete the words, in sub-section (1), "shall if so required on behalf of any candidate," and to substitute the words, "may, and, if so required on behalf of any candidate, shall." The object of the amendment is to make it clear that the presiding officer is entitled to question any voter whom he suspects is personating. Under the clause as it stands the presiding officer cannot question a man even if he knows he is personating unless he is required to do so. It is to remove that restriction, and to give the presiding officer power to question a man whom he believe to be personating, that I move this amendment.
I accept the principle of the amendment. I thought at first that the matter was met by Clause 38, but I find that only empowers a personating agent to do it. I accept the amendment.
My amendment, Sub-section (2), deals with the same thing.
Yes, it is the same thing; I accept it, also.
There is one danger in connection with this amendment,—it depends upon the type of the official who is the presiding officer. If he happens to hold particular views and you give him too much power, he can hold up the electors by cross-examining every elector he believes is not on his side. Under the old Act he could only ask three questions. We want to give the presiding officer more power, but we want to be careful that we get the right class of man to act. If you adopt the amendment the presiding officer can ask a thousand and one questions of every voter who comes in. His power is limited under the old Act to three questions.
I think he can only ask three questions, and as a matter of fact it is hardly likely the presiding officer would be a stronger partisan than the personating agent.
It might save him from having a personating agent.
This is one of the phases I referred to previously. No doubt the presiding officer does ask questions, and asks them from people he knows are not entitled to vote. If he gets a certain answer he allows the person to vote. I have heard a presiding officer tell his subordinates it was not their business to interfere and that if a certain question were answered their duty ceased, although they knew that a particular man or woman was not entitled to vote. It is a ridiculous state of affairs. If an official knows that people who claim the right to vote have no right to vote, I say it is a criminal responsibility if he allows such person to vote.
We are changing all that.
In the Bill dealing with Corrupt Practices additional powers are given, and all that will be dealt with.
Would it not be necessary to have all these additional powers in this Bill?
It might be, and we may produce that at a later stage.
May I presume upon the patience of the Dáil and ask the Minister to refer to Clause 30? I forgot to draw attention to one small point which the Minister in charge of the Bill might deal with at the next stage.
I noticed it, I think.
There is no provision whereby the returning officer can decide anything in the case of a tie. I do not know whether it is intended in the case of a tie that he should have the power of giving a deciding vote, but there is nothing in the Bill to allow anything to be done except to take a new ballot in the case of a tie. Perhaps the point can be considered between now and the next stage.
I beg to move Clause 33.
I beg to move the following amendment:—"Section 33, Sub-section 6: To add at the end of the sub-clause the words "if the use of such room would involve a breach of the decorum proper to be observed in the vicinity of the church, place of worship, convent, or other religious establishment." I would ask the Minister to accept this addendum. It would justify the action of the manager in not giving a room or rooms if he had reason to believe that there would be some breach of decorum or disturbance in the polling station. For instance, there might be some members of the convent or community, or of the manager's house, ill at the time of the election, and any unusual disturbance might have a bad effect on health. Then there might be a mission or retreat going on in a particular convent or church. In such case the clergyman should have the right to refuse such room or rooms, and another polling station should be provided by the returning officer. So far as my knowledge is concerned, I do not think that any manager would refuse the use of schoolrooms for polling purposes, but it might be necessary to define that right in the Bill.
This is another amendment which I hope will be withdrawn. If you pass this, you will have all the school managers all over Ireland pointing to it and saying, "You cannot get my school to-day; we have something on." Leave it to the discretion of the returning officer. In my experience, clergymen of all denominations do not want polling near their church or schools. We must get a proper place for the electors to go to, and if you put that clause into the Act you will be referred to it every time.
I think the argument made by Deputy McCarthy is strongly in favour of the amendment. If Deputy McCarthy will read the sub-clause, he will find it stated that "nothing contained in this section shall be deemed to authorise the use by a returning officer or a candidate of any room in a school adjoining or adjacent to any church or place of worship, or in any school connected with a convent or other religious establishment." If I understand the amendment aright it is intended rather to safeguard the rights of the returning officers and candidates over these places, and not to put it altogether in the hands of the manager or other director of one of these establishments to say, "You shall not have this, because the Act says you shall not." The clause as it stands rather takes away the right of the returning officer and of the candidate and puts absolute power in the hands of the manager or director to refuse the use of the establishment. The amendment, if the Minister will accept it, will rather rectify that, and bring about such a position that there must be at least reasonable grounds for believing that such disturbance or breach of decorum would ensue from the temporary occupation, so that the manager would have a good right to object.
Who is to decide?
I hope the amendment will not be pressed for this reason: I think it depends a good deal upon the meaning applied to the words "connected with." I think that that means "physically connected with convent or religious establishment," because I see the words "adjoining a church or place of worship" above. It seems to me that if this amendment is accepted we shall have abundant disturbance in places at the doors of religious establishments, where such disturbances ought not to take place. No one can tell whether a public meeting in support of a particular candidate will or will not cause a breach of decorum. The candidate never intends that there should be a row, but he is not in control of his opponents, and although he and his agents who take this room, as they have a right, under sub-clause 3—for the candidate is entitled, for the purpose of holding a meeting, to a suitable room in any school—can go in and demand it, saying that there is going to be no breach of decorum. Circumstances, however, over which the candidate has no control, will cause a breach of decorum, without any thought or intent on his part, or those whom he represents. It seems to me that the drafters of this Bill were wise in providing and authorising a candidate or a returning officer for the purpose of an election, to take a room in a school that was adjoining or part of a religious establishment of any denomination. If it is necessary I think that the thing might be made clear by putting, instead of the words "connected with," such words as "physically connected with." For instance, the church to which I go has schools which have been used for the purposes of elections, but though they are connected with that church and under the management of the Incumbent, they are nearly half a mile away from the church. In one sense they may be said to be connected with the church, but I do not consider that they are connected in such a way as to be regarded as physically connected. No returning officer ought to be entitled, as a right, to go in and take a room in any school that was up against the walls of a religious establishment of any denomination, merely on his own statement—"I do not believe there will be any breach of decorum, and therefore I will take it."
I think that the point raised by the Deputy who has just sat down is the essence of this little difficulty. The words "connected with" seem to imply organic association and not physical connection. There would be a barrier placed upon the use of schools, and if there were church schools connected with the church, it would nullify the whole clause. If it is intended that the use of the words "connected with a convent or other religious establishment" means physically connected with, then there will be little or no need for the amendment moved by Deputy Colahan. I think the objection raised by one Deputy as to who would judge whether the use of such room would involve a breach of decorum is a valid objection, but I would urge that some words be found better than "connected with" to indicate the mind of the Ministry.
I think I will be able to meet the objection in the next stage. The intention undoubtedly was in the sense of physical connection.
Would it not meet the case if you struck out the words "connected with," so that it would read, "adjoining or adjacent to any place of worship or a convent or other religious establishment"?
Or it might also be in the convent.
That is agreed, in each school that forms part of or is contiguous to——
I will get an amendment drafted.
I would like to point out to the Minister, when considering this matter, that there are a great number of schools in Dublin adjacent to the churches, and some of these are already being used as polling stations. In view of the recommendations of a Committee that sat recently to increase the number of polling stations, the difficulty of getting the increased stations will be very great if this barrier is put up.
On that understanding I withdraw the amendment.
I move Clause 34.
I move Clause 35.
I move Clause 36.
I move Clause 37.
I move Clause 38.
I move the amendments standing in the name of Mr. Duggan:—Section 38, lines 41 and 42.
(a) To omit the words “and any magistrate and any returning officer.” Line 43.—(b) To omit the word “him,” and to substitute the words “the returning officer or any magistrate.”
Would it not be necessary now in view of having an election "postponed from day to day in case of riot or commotion" to introduce a clause earlier, for it is enacted that the polling shall take place on such and such a date? Some proviso like that will have to be introduced.
That may be necessary, but in any case I do not think the necessity arises from the amendment.
No, from the general clause as a whole.
I move Clause 39.
I move to delete the whole of Sub-section 1. I think it is unnecessary, and I think the latter part of it introduces rather a bad principle. There are, or there will be, penalties prescribed for neglect or wilful neglect, or wilful acts or omissions by these officers in contravention of this Act, but, in addition to the ordinary penalties, this clause provides that there shall be paid a forfeit to any person aggrieved by such acts of the presiding officer a sum not exceeding £100. That seems to introduce a bad practice commonly known or popularly called the common informer type. I do not think there should be any inducement of a financial kind to anyone to do his duty as a citizen by drawing attention to these acts. I think it is a bad practice, and I think it is an objectionable one, and that the proposal that the money penalty should be payable to the aggrieved person, whoever he may be, should be struck out altogether. Perhaps in another part of the Bill, or in another Bill, suitable provision can be made to cover what might be essential in this clause, but at the moment I cannot see that anything is essential, and it should be omitted. I should like, in common with the other Deputies who have spoken of negligence, to say a good deal of it is culpable negligence, as these officers should know their job, and should be punished by law for doing wrongful acts or allowing wrongful acts to be done, and I do not think it should be done in this way—that this penalty or award should be given to the citizen who draws attention to it or who happens to be aggrieved.
It seems to me the argument that might be put against a clause like this is really not that stated by Deputy O'Shannon. I do not think there is any reason why the question of such a penalty as this should not be included, and why it should not be payable to the person who will take the trouble to prosecute, and who has actually been aggrieved in some way. It seems to me the grievance is in the actual misfeasance or wilful act done. It would be very difficult to know if it was a wilful act. I would like to reconsider this clause, but my intention in doing so would not be with a view exactly to giving way, but perhaps to make it more effective. In any case, Deputy O'Shannon's objection was based on the idea that there should be no penalty of the type indicated. I do not agree with that, and I would not like to be taken as agreeing to omit, or to accept the idea, that such a penalty should not be in the Bill at the moment. If the clause was strengthened in any way, and if it was possible to bring in a more effective clause which would lead to negligence, if culpable, being dealt with, it might be possible to get rid of that clause.
The objection raised by Deputy Cathal O'Shannon to the perpetuation of the common informer is a good one. Common informers are generally a nuisance; they generally come forward, not from any intention of doing good to anybody at all, but simply to try to make a little money for themselves, and I do not think that this clause as drafted does provide for the common informer. If there is any possibility that it should, I suggest to the Ministry that they revise it and that they should make it quite clear that it is not a clause to encourage common informers. As I read it, it seems to me that the only person who could recover would be a person who had actually suffered a loss by the wilful wrongdoing of a Returning Officer or Presiding Officer, but I do think that any person who has suffered a loss which he can prove by an act, which must be wilful to entitle him to any remedy, ought to be entitled to recover the loss from the person who is responsible, and I think that a clause which says that the person aggrieved shall recover a penal sum not exceeding £100 does in law produce the effect that he must prove actual loss before he can recover any sum at all, and that the sum he does recover is limited to the amount of the loss so proved by him. If so I doubt very much if Deputy O'Shannon would press his amendment, but if the Minister would, in looking into it, make it clear that it is not a clause to encourage the common informer, I think that the clause, in some form, ought to be preserved
I will not press the amendment, because my main point was the point that has been dealt with by Deputy Fitzgibbon, but, being a layman it is not easy for me sometimes to see all the implications of certain phrases in certain clauses, and I suppose the whole thing really centres round the legal meaning of "any person aggrieved." If the interpretation which Deputy Fitzgibbon gives to the clause is the correct interpretation, then I would be satisfied on that point with the promise of re-drafting that the Minister has given. Therefore, I withdraw the amendment.
I rise to point out that if this is re-drafted special consideration must be given to the fact that where the word "wilful" is withdrawn, and "from wilful misfeasance or wilful omission," the penalty clause cannot very well stand. The real effect of the penalty clause is that it is practically enabling the aggrieved person to take an action and recover damages, or compensation, for the loss accruing to him through the misfeasance of the person in question. Now, if we take away "wilful," and substitute "negligence" it would have to be a type of criminal negligence, so that I think the thing requires a great deal of careful watching. I think it would be better if there was a separate clause dealing with negligence than in itself, rather than by thus leaving this as it stands.
All I am afraid of in a clause like that it will dishearten the presiding officers from doing their work, as Deputy Gorey pointed out a moment ago. A presiding officer will only have a certain amount of work to do, and that is all he is interested in. Now, if he is going to arrest a man for personation, and he makes a mistake, is it open for the person aggrieved to take an action against him for £100. If you have that clause the presiding officer will not bother his head about personating. You must give him unlimited power. That is the only way to stop personating, and if that clause is there, there is no encouragement for the presiding officer.
I think the discussion does show that the clause would need to be reconsidered, and, perhaps, redrawn. The intention was not, of course, to penalise the presiding officers, and I think it will have to be made clear that whatever the powers for dealing with personation that may be given to presiding officers if they are exercised in good faith the presiding officers will have to be protected. As it stands I think this clause is faulty from the point of view of proving the wilfulness of any act that may be done, and because of the fact that the trouble at elections has rather been culpable negligence, or something that could only at most be proved to be culpable negligence rather than wilful misfeasance.
I move Clause 40.
I move Clause 41.
I move Clause 42.
I move Clause 43.
It has been found that some amendments may be necessary to the remaining two clauses. I would be glad if the Dáil would not take these two clauses—that is, 44 and 45—although they are in to-day's list. Some small amendments are necessary, and I would propose that the consideration of these two clauses should be adjourned until Tuesday, and that on Tuesday we should take the remainder of the Bill—that is, up to Clause 67; that on the day following, Wednesday, we take Schedules 1 and 2; and that on Thursday we take the 3rd, 4th, and 5th Schedules. We may not get through so rapidly.
I move the adjournment of the Dáil until 3 o'clock on Tuesday.