ELECTORAL BILL, 1923. - [REPORT STAGE RESUMED.]

I move Amendment 1 (Section 20)—"In Sub section (4), line 57, to insert after the word ‘polled' the the words ‘by a candidate.'"

Amendment agreed to.

I move Amendment 2—"To delete from the word ‘be,' end of line 57, Sub-section (4) to the word ‘shall,' line 60.'"

Amendment agreed to.

I move Amendment 3—"To delete Sub-section 5, and to substitute in lieu thereof the following —‘If a candidate is elected the deposit made by him, or on his behalf, shall be returned to the person by whom the deposit was made as soon as practicable after the result of the election is declared." The Clause as it stands is to incorporate in the Bill a similar Clause which was inserted out of spite, and with malice aforethought, by, I think, the present Minister for Education in the Government of the Six Counties. It was deliberately designed to prevent members elected on the Sinn Fein ticket in Ireland getting their money back. As I said, it was with malice, because they forgot to insert in the Bill what should have been a consequential clause indicating what was to be done with the money if the man did not take his seat. Yesterday we had a statement by the President which was very appropriate to this clause. He was then dealing with the two Criminal and Malicious Injuries Acts which had been held over the heads of the citizens of this country. He said that in his view, and in the view of the Government—and it was the general view—these Acts were penal and punitive, and should be repealed. Now, that applies with very much greater force to these clauses(a) and (b) of Sub-section 5. They are penal and punitive, and they ought not to be incorporated, coming from the source they did, in an Act of the Oireachtas. The intention is not a good one. We have been preaching and arguing that there is a constitutional way of doing things, and we advise people who have particular views on public questions, to give expression to these views at the ballot-boxes. Now, it is not an unknown practice, and it is perhaps very commendable, for a man or a constituency to take the line that they are going to express their views upon a particular line of policy by electing a man who will abstain from taking his seat. That is the way a constituency is going to express its detestation of a particular policy or a particular institution, but it is a right way to express their views. It is a very much better way than by driving that constituency—or, rather, the voters of that constituency—to acts of physical violence. It is a constitutional way of expressing popular opinion; but we are saying that you must not dare to do that, except you are prepared to pay the penalty of forfeiting your deposit. Now, that seems to me a mean way of taking advantage of men's strong feelings. You are helping by, perhaps, a not very effective gesture to dam up the channel of constitutional expression, and I think it is a clause that mars the Bill, and we ought not to agree to it, for the simple reason that it is not going to be effective in preventing men that go to the poll with the determination not to take their seats. It is only going to mulct such people in a fine of £100, and it is going to enrich the coffers of the Saorstát by that sum, and it is putting down the Dáil which accepts such a proposition as being mean and petty in its outlook. I hope the Dáil will not agree to this amendment, and will not agree to having the clause as it stands, incorporating these punitive and penal fines upon the constitutional expression of a legitimate view of public matters. I beg to move the amendment.

I wish to second the amendment. It seems to me that this is in an indirect or oblique way a violation of the Constitution—to arrange that, in effect, the expression of such an opinion shall be visited with the forfeiture of £100. The Article to which I refer is Article 9 in the Constitution, in which is granted the right of free expression of opinion for purposes not opposed to public morality. Now, if the constituency expresses its opinion upon some matter of policy in this form, that it elects A.B. its representative, and if, in consequence of such election, the representative is mulcted in the way proposed by the clause as it stands, can we say consistently that we have permitted the free expression of opinion. It may be said that this is a subtle reading of the intention of the Article of the Constitution, and is putting a false interpretation upon "free." But I would suggest seriously that it is impossible consistently to reconcile the clause with that Article of the Constitution. What was known hitherto as the Sinn Fein policy in regard to the British House of Commons was to mark the public disapproval of certain items or elements of government by abstention from the Westminster legislature. Surely at this stage of Irish history we are not going to declare that we shall visit with punishment those who do not see eye to eye with us politically on certain matters and who might attempt to proclaim their divergence of opinion by returning at an election some one who was pledged not to take his seat? We are not blind to the fact that there are many sincere opponents of the Saorstát who would, if it were not for the oath, take their seats here and function as a constitutional opposition. Whatever be their peculiar mentality, in virtue of which they see something so contrary to conscience in this oath that they cannot take it, is for themselves, but the fact remains —and we ought to take account of it— that they have declared their intention that they will not take the oath. One Deputy has already departed from the Dáil from the moment the Constitution was enacted. So it seems to me that we ought not to re-enact this very objectionable provision. It should be possible to allow a constituency to give its votes without fear of monetary loss, as an indication of its considered opinion, upon some matter submitted to the electorate.

Mr. O'HIGGINS

The oath is a condition precedent to a Deputy taking his seat in this Assembly. Therefore, that particular clause simply amounts to this that the fee is returnable when the Deputy takes his seat. The oath is becoming apparently a question of great magnitude, literally, a burning question, but I would suggest that it might very well be taken in the spirit and in the sense in which another oath was taken, as a pledge to the Irish people to do the best for them in any circumstances that might arise. Mr. Ginnell, the late Mr. Michael Davitt, and many others, went to the British Parliament and took a very different oath. The Irish people, for many a long year, thought nothing the worse of them. It was a constitutional condition laid down precedent to their taking their seats in that Assembly, and they went to that Assembly to do the best for the Irish people in any circumstances that might arise. The Irish people, I take it, desire one Parliament carrying out one policy within their country and that policy will be whatever policy the majority will of the Irish people for the time being wish. No man can bind them. That will is at all times sovereign and can no more bind itself for to-morrow or the day after than this Parliament can bind itself for to-morrow or the day after, because it is at all times sovereign; the majority will of the country must prevail. A grim fight has been fought for that. We are not going to throw it away now, and there must be one Parliament and one policy within this country. The majority will of this country, facing facts and in the light of reason, has adopted a certain policy, has accepted a Treaty, has accepted a Constitution, and until the majority will of this country repudiates that Constitution publicly it will be the Constitution of Ireland; and the men with the tender consciences, those delightfully tender consciences of which we have had an exhibition in the past year, must simply make up their minds as to whether they cannot bring themselves by great stress and strain to take the Oath laid down by this Parliament in the spirit in which their leader took the Oath laid down by the last Parliament as a pledge to do his best for the Irish people in any circumstances that might arise.

Cuidim-se leis an leasú atá os cóir na Dála. Ní gádh a rá cad é an meas nó an dí-mheas atá ar an móid. Ní maith liom aon mhileán do chur ar aon dream in Eirinn nach toilteannach leo teacht isteach sa Dáil seo.

Ba mhaith an rud irracht a dhéanamh chun féachaint ar aghaidh agus gan bheith ag feachaint arais i gcomhnaidhe. Níor thug an t-Aire aon fhreagra ar an gCúis do cuireadh os cóir na Dála tráthnóná. Ní bháineann an chuis seo leis an sean-Dáil, ní bhaineann sé leis na rudaí atá imithe, ach baineann sé leis na rudaí sa tír atá le teacht. Ar an abhar so iarraim ar an Aire glacadh leis an leasú so.

I think that at this time of day it would not be at all a bad thing if Ministers and Deputies tried, in legislation, to look a little way into the future instead of looking so much to the past. It is not possible to forget the past with all its bad and evil things and some of its good things. Now, this measure before us is one of those measures that will not be of so temporary a nature as some of the other Bills we have been discussing. It has no exact time limit. It will be capable of amendment in the future, and I hope it will get it, but it is rather more permanent than most of the other Acts, and for that particular reason I would like the Dail to visualise what the future Parties and the future opinions of the people of Ireland may be. Rather let us do as one of those said from whom many of us are politically descended. I refer to one of the fathers, the more ancient fathers of this State. He said, "Let our differences"—he was referring to sectarian differences—"be buried with the bones of our ancestors." Could we not let some of the Acts, especially the sins of the Second Dáil, be buried with the bones of our ancestors? Let us look to the future. I can foresee the time—it is not because of any very vivid imagination nor any particular foresight—when there will be something like a free expression of opinion in this country. People will be found who have reasonable objections, for instance, to the particular form of the Legislature and not to such an incidental thing as the Oath at all. We in Ireland, I hope, are not going to be bound by all the traditions of other places. There are people in these other countries who have very different ideas and different opinions as to the utility of this form of legislature, what is called the Parliamentary form of legislature. I do not merely refer to those of us who have tendencies towards an occupational franchise—an occupational representation in the Legislature. But there are others—there are others who can put forward pretty sound arguments; arguments which may not convince most people, because most people, unfortunately, do not reason at all, and are not convinced by arguments. They are convinced or persuaded by something else. Now, if at any time in the future a group of people propagated certain doctrines which are quite constitutional, which do not make any breach either of public morality or what I may call constitutional morality —the two are not the same thing—and their propaganda convinced a considerable number of people in one or two or three or more constituencies, they may find, as others have found, that one of the best ways of advancing their propaganda, of gathering adherence to it, of convincing people that they are really in earnest and that they are not mere cranks and faddists, may be that they may either permanently or temporarily decide to abstain from taking an active part in this form of the Legislature. As a matter of fact, it is quite possible that the Oireachtas itself may change the form of the Legislature. That change may be opposed by a minority. That minority may be strong or it may be weak. I fancy if any radical change were made in the form of this Legislature in the future— I am talking of ordinary normal times, and not of this year of 1923—that there would be a strong and determined minority, with very conservative views, that would have nothing at all to do with the new form of the Legislature. By the provision that you insert in this measure you cut them away from all constitutional expression of their opposition and of their opinions, from the constitutional expression of their opinions, by preventing them or penalising the normal constitutional method of expressing that opinion. You leave them very few methods of expressing that opinion unless they are to revert to armed or semi-armed, or some form of violent and armed opposition. There are elements in Ireland which could be driven out of the constitutional path of opposition or objection by such measures as this. We want to prevent that. We want to put no penalty at all on the expression of opinion unless that opinion is an opinion that offends against the ordinary law of the country. But it is not an offence against the ordinary law of the country for a majority, say, in one or two or three constituencies, although they may be a minority over the whole country—it is not an offence either against public morality or the ordinary law of the country for that minority to express itself at the polls, to elect its representatives and to refuse, either permanently or temporarily, to send those representatives into the Legislature. But you want to put a penalty on each of those successfully returned candidates, on these duly elected persons. You want to put a penalty on them. You are classing those with what you call freak candidates. They are not necessarily freak candidates at all. Before being returned they must have found a majority, or a very substantial minority indeed—a quota in one or more constituencies. You may think that by putting a penalty on the person returned you are fining him. But it is not he, it is not the mere value of the £100 or so that is in question at all. You are penalising and putting a check, a stopper, more than a check and stopper, you are putting a slur on the electors of Saorstát Eireann who may happen to be in the minority and who happen to hold views that are not held by the majority. You are penalising them. You are denying them the only constitutional method of expressing their opinion open to them. It is not a question so much of the oath at all. The views of my colleagues and myself on this particular oath, and on such oaths in general, are very well known. But it might be possible that some particular act, some particular policy of the Dáil or Government, or Oireachtas, would decide our particular following throughout the country to agree temporarily to an abstention policy as a protest, after giving expression to our opinions and feelings at a general election, or at a bye-election—and a bye-election often turns on one or two things of public importance, and it is the only way between general elections outside the Dáil, and the only means the people have of expressing their opinions.

[At this stage Mr. George Nicholls took the chair.]

And you want to penalise all that. You want to prevent all that. It is not a question of oaths at all. The oath is the thing that does not matter very much. It is a question of the whole issue that we are raising, the whole issue that the Dáil is asked to decide on now is the penalising of the constitutional expression of minority opinion, apart altogether from the oath. We ask the Dáil to adopt the amendment.

It is very engaging to hear the Minister for Home Affairs knocking, as he did knock, every skittle over in the alley he went into. But it is not the particular alley that concerns the amendment. I think every member of the Dáil would agree with every word he said, and even after that agreement has been given with the most entire concurrence, still the argument for this amendment remains untouched. I am in favour of the amendment, and my attitude towards the Constitution and the Oath is known. It is an oath that we have all taken, an oath that we all stand by. But that particular oath is not primarily in question here at all. Why is money returned to a candidate? Money is returned to a candidate under the stipulations in the earlier part of this Clause because he has received a certain number of votes. If any candidate receives a certain number of votes, having received that amount of endorsment from the people, whatever he may subsequently do is irrelevant to that question, because that alone should entitle him to the return of his deposit. I am sure that candidates will be put up at future elections—I do not think they will be many—who will pay the £100, and they will receive, at that moment when it would be wise to prevent them from its receipt, a free advertisement by what will appear in this Bill to seem like a purely penal measure. That in itself is unwise, it is impolitic. But it is not on that that I put forward the argument for the amendment, but on the simpler ground that a candidate, if he be returned or if he be not returned, is entitled to the return of his deposit only on one condition, and that is, that a certain number of people of this country have supported him with their suffrage. If he can get that amount of support he should be entitled to the return of his deposit without being followed by any penal measures. For that reason, which I think to be the gravamen of the case, I do strongly support this amendment and suggest the deletion of Sub-section 5, because I do not think it will do any good and I think that its insertion there is irrelevant to the clause.

If this is objected to because it is thought to be a penal Clause, or because it contains some penal element about it, there does not seem to be any sense of proportion in the speeches which have been made. It would be penal if it was inflicting a penalty on the expression of public views. It would be penal to the extent of about 2½d. per expression, and that would not be a serious matter and would not merit all the consideration that seems to be attaching to it. However, the matter is to be looked at from another point of view altogether it seems to us. Elections to the Dáil are not primarily held for the purpose of giving expression to or advertising any sort of public opinion. They are held for the purpose of providing an organ of government, that is what they are for, to give us a Parliament, to have Deputies come here and legislate and control an Executive, to carry out the government of the State. Any candidate who comes forward with the intention of not taking his seat is no more abona fide candidate deserving to have his deposit returned than the worst freak candidate who could possibly come forward. If people choose to prostitute Parliamentary elections for the purpose merely of advertising public opinions, then it is right that they should pay for the advertisement and for the publicity they get. That seems to be the whole of the matter. We should not encourage the idea by making a change here that this Parliament is such that whole lots of people are going to be too good to come into it. This is the Parliament of the Nation, and we should not here by any deliberate resolution give sanction to such an idea. I think that really the matter, as far as we are concerned, may rest at that.

We have heard most extraordinary pronouncements of principle——

ACTING CHAIRMAN

The Deputy spoke before, and cannot speak again on this amendment.

I thought this was in Committee.

ACTING CHAIRMAN

No, we are not in Committee.

I think that Deputy Figgis in the few remarks that he made really put his finger upon the spot, because he asked what was the purpose of the deposit. Why is there a deposit at all? The deposit is for the purpose of preventing a candidate who had no particular support coming up and putting the country to the expense of an election, and when a candidate by receiving a certain quota of votes, or by being elected, proves beyond all doubt that he has that necessary support, the deposit is returned. But another point in addition to that is this. If two candidates are going up upon the one particular ticket, not for the purpose of taking their seats, but to demonstrate the support for a particular principle or policy, the one candidate who is returned and gets the greater support of the two is penalised by forfeiting the deposit, whereas a colleague of his standing precisely upon the same policy, and getting less than the number of votes entitling him to be elected— more than that prescribed in the Bill— will have his deposit returned. That seems to be inconsistent.

Amendment put:—‘To delete Sub-section 5, and to substitute in lieu thereof, the following: ‘If a candidate is elected the deposit made by him, or on his behalf, shall be returned to the person by whom the deposit was made as soon as practicable after the result of the election is declared.' "

The Dáil divided.—Tá, 15; Níl, 33.

  • Tomás de Nógla.
  • Riobárd Ó Deaghaidh.
  • Darghal Figes.
  • Tomás Mac Eoin.
  • Liam Ó Briain.
  • Liam Mag Aonghusa.
  • Aodh Ó Cúlacháin.
  • Liam Ó Daimhín.
  • Seán Ó Laidhin.
  • Cathal Ó Seanáin.
  • Seán Buitléir.
  • Nioclás Ó Faoláin.
  • Domhnall Ó Muirgheasa.
  • Risteárd Mac Fheorais.
  • Domhnall Ó Ceallacháin.

Níl

  • Donchadh Ó Guaire.
  • Uaitéar Mac Cumhaill.
  • Seán Ó Maolruaidh.
  • Seán Ó Duinnín.
  • Micheál Ó hAonghusa.
  • Domhnall Ó Mocháin.
  • Seán Ó Ruanaidh.
  • Risteard Ó Maolchatha.
  • Domhnall Mac Cartaigh.
  • Maolmhuire Mac Eochadha.
  • Éarnán Altún.
  • Sir Séamus Craig.
  • Liam Thrift.
  • Seosamh Ó Faoileacháin.
  • Fionan Ó Loingsigh.
  • Séamus Ó Cruadhlaoich.
  • Criostóir Ó Broin.
  • Caoimhghin Ó hUigín.
  • Proinsias Bulfin.
  • Séamus Ó Doláin.
  • Aindriu Ó Laimhín.
  • Proinsias Mag Aonghusa.
  • Eamon Ó Dúgáin.
  • Peadar Ó hAodha.
  • Séamus Ó Murchadha.
  • Seosamh Mac Giolla Bhrighde.
  • Liam Mac Sioghaird.
  • Tomás Ó Domhnall.
  • Earnan de Blaghd.
  • Uinseann de Faoite.
  • Domhnall Ó Broin.
  • Séamus de Burca.
  • Micheál Ó Dubhghaill.
Amendment negatived.