Can the Minister say, off-hand, what sections of the Bill give him power to make regulations? What sections enable the Minister to make regulations, apart from that prescribing the expenses of local returning officers?
Committee on Finance. - Presidential Elections Bill, 1937—Committee.
Sections 1, 2 and 3 put and agreed to.
Question proposed: "That Section 4 stand part of the Bill."
I am not aware of any that will be necessary. So far as dates are concerned, there is a separate section dealing with that matter.
Sections 4 to 7, inclusive, agreed to.
SECTION 8.
(2) The presidential returning officer shall furnish free of charge on request a form of nomination paper to any member of the Oireachtas, and the presidential returning officer may also, if he so thinks proper, furnish to the Clerk of Dáil Eireann and to the Clerk of Seanad Eireann a supply of forms of nomination papers for the use of members of the Oireachtas.
With regard to Section 8, amendment No. 1 is out of order as being outside the scope of this Bill. The same applies to amendment No. 2.
I move amendment No. 3:—
In sub-section (2), lines 25 and 26, to delete the words "may also, if he so thinks proper", and to insert in lieu thereof the word "shall".
The sub-section sets out that the presidential returning officer shall furnish free of charge on request a form of nomination paper to any member of the Oireachtas, and the presidential returning officer may also, if he so thinks proper, furnish to the Clerk of Dáil Eireann and the Clerk of Seanad Eireann a supply of forms of nomination papers. I want to delete the words "may also, if he so thinks proper", and substitute the word "shall". The reason why the word "shall" should be inserted should be obvious. We think it is fit and proper that the nomination papers should be placed here for the convenience of members, and it ought not to rest with the returning officer whether he may or may not furnish these papers. I think the Minister will see the sense of that and will agree that we are suggesting the proper thing to do.
If it were likely that any returning officer would not put the nomination papers at the disposal of the Clerk of the Dáil, then there would be a case for the amendment, but, as the person to be appointed will presumably be a civil servant, there could scarcely be any question that the would certainly see to it that what the Deputy has in mind would be carried out.
That is hardly a case for refusing the amendment. We do not know, and the Minister does not know, who will be the returning officer in ten or 20 years' time, and there is no reason why we ought not to have that officer's duties clearly outlined. I think we should make it clear that this matter will not be purely at the officer's will or wish. We ought to lay down definitely what he must do.
If we take out the words "also, if he so thinks proper". will it meet the Deputy's point?
Leave out the words I suggest and put in the word "shall".
I will leave out those words "also, if he so thinks proper".
What is it that we propose to do?
The Chair does not yet know.
We are proposing to leave out the words "may also, if he so thinks proper", and put in the word "shall" there.
I am prepared to meet the Deputy to the extent of leaving out the words "also, if he so thinks proper".
Without the word "shall"?
"also, if he so, thinks proper". I will leave in "may". Other Acts of Parliament have "may".
Did I understand the Minister to say that this "may" does not mean "shall"?
I did not say that.
It was to be concluded from the Minister's statement that if there was an officer who would not do it, then he would amend the section. I took it for granted from the Minister's statement that the officer has the power to refuse to do it.
In theory, perhaps, yes.
Is the Minister legislating, or is he not? He does not seem to know. Does the word "may" here mean "shall"? The Minister does not appear to know the Bill.
There is a very distinct change in the approach to the relationship between the presidential returning officer and the Clerk of the Dáil as compared with the position of that officer and a member of the Oireachtas. The Vice-President thinks it desirable to provide here that the Presidential Returning Officer shall furnish a form of nomination paper to the member of the Oireachtas, but then the Bill goes on to say that he may, if he so thinks proper, furnish a supply of forms to the Clerk of the Dáil. What is the reason for the difference in the phraseology? If it is thought desirable that the returning officer must give a form to the member of the Oireachtas, why should he not similarly be compelled to provide forms for the Clerk of the Dáil?
If the Minister thinks it is desirable to impose on the returning officer a statutory authority to make these forms available to the Clerk of the Dáil, then the best way is to put the word "shall" into the section. Otherwise, the position will be that the returning officer may, if he so chooses, supply forms, or he may decline to supply them. The best way to ensure that he will supply them is to insert the word "shall" instead of "may". I do not think the Minister has given any convincing reason against this amendment. If it is desirable that these forms should be made available to the Clerk of the Dáil, then the best way is to put the statutory responsibility on the returning officer.
Can the Deputy imagine any civil servant refusing to send these forms to the Clerk of the Dáil?
Why not put the word "shall" in the opening sentence? If the Minister has such an abiding faith in these infallible civil servants, why not make it read "the presidential returning officer may furnish... to any member of the Oireachtas"?
The members of Dáil Eireann, of the Oireachtas, are the nominating persons; the Clerk of the Dáil is not a nominating person.
The Minister tells us that the civil servant, being so obliging and having such a high conception of his responsibilities, would not refuse a form to anybody entitled to receive one. But the Minister does not seem to believe that, because in this sub-section he sets out that the returning officer "shall furnish".
The members of the Oireachtas are the nominating persons. They are entitled to have a form because they are entitled to nominate.
Surely there is the same reason for having the forms made available to the Clerk of the Dáil.
No.
Must the presidential returning officer be a civil servant?
No.
He may not.
I gather that the Vice-President will not put in "shall" instead of "may" because there are Acts of Parliament where there is the word "may" and not "shall". He does not know why that is so. Why he is insisting on the wording of this sub-section, I do not know. Why has he so much confidence in a person who may not be a civil servant? We are all aware that the integrity of the Civil Service is a thing on which you can rely, but now it appears this man need not be a civil servant at all. I do not know why the Minister objects.
Has the mover of the amendment accepted the amendment of the amendment suggested by the Minister?
It is absolutely ineffective, unless you substitute the word "shall". There is nothing at all gained by removing those words "also, if he so thinks proper".
Surely the Vice-President sees the reasonableness of the amendment?
Can the Minister visualise any circumstances in which the returning officer will not think it proper to supply these forms to the Clerk of the Dáil.
He does not know.
Has the Minister any objection to the Clerk of the Dáil being supplied with the forms?
None at all. I hope he will have a plentiful supply.
It is a most extraordinary position. I wish the Minister would reconsider this whole thing.
Very well, I promise to reconsider the matter.
Amendment, by leave, withdrawn.
Section 8 agreed to.
SECTION 9.
I am ruling amendments Nos. 4 and 5 out of order.
4. At the end of the section to add the following new sub-section:—
For the purpose of this section the words "any council of a county or a county borough" means the council of any county or the council of any county borough, but does not include a commissioner or other person discharging the functions of such council for the time being.—William Norton.
5. At the end of the section to add a new sub-section as follows:—
Nothing in this section shall empower a commissioner, or commissioners, acting as a county or county borough council, to nominate any person to be a candidate at any Presidential election.—Mícheál O Braonáin.
Would the Ceann Comhairle give a reason for ruling out amendment No. 5, because, as I understood the situation, the law sets out what the power of a commissioner is in a county council? The Constitution does not set it out, and my submission is that the Constitution is not putting any restriction on how the Oireachtas will lay down the law as to what constitutes a county council. Presumably, if this amendment No. 5 were to be ruled out of order, if it were decided to group four county councils into one in years to come, or to make any other alteration, it might be held that it was unconstitutional and could not be done. In this case, where it is proposed to alter the law permitting the commissioner to exercise the rights given in the Constitution to county councils as such, it might be held that that would not be in order.
Amendments Nos. 4 and 5 are the same in substance.
The object of amendment No. 4 is not to give the commissioners the wide powers which it is sought to give them in connection with this Bill. I am not at all challenging the right, nor is Deputy Brennan challenging the right, of county councils or borough councils to make nominations; but we are challenging the right of a commissioner appointed for a specific purpose to interfere in the affairs of a Presidential election. I submit that when Article 12 of the Constitution was being drafted, there was no indication that such a situation would have arisen. Indeed, that was made clear on the last day here, when the Minister for Local Government and Public Health did not seem to know what the precise legal position of the commissioner was vis-a-vis this Presidential election. I submit, Sir, that it was a very rigid ruling to say that an amendment of this kind is out of order, because the amendment does not challenges the right of the county council to make nominations. It only challenges the right of the person appointed to function on behalf of a county council, in certain limited ways, to interfere in the affairs of Presidential elections.
I submit, Sir, that if this amendment were accepted it would be in the power of the Oireachtas to define the duties of commissioners. Ruling out this amendment suggests that it will not be in their power to define these duties. I suggest that if for a time the commissioner must have the functions of county councillors this is not going to mean that he is to have these functions in connection with Presidential elections under the Constitution. It is a suggested amendment of the law and this is the place to suggest an amendment of the law. We cannot bring in an amending Local Government Bill at this particular time. The only method of implementing the Constitution just now is by way of bringing in this amendment here. It is not changing the Constitution, but it is limiting the powers of the commissioner. The more ordinary procedure would be by the method of an amending Bill to the Local Government code and to lay down there what are the powers and what are not the powers of the commissioners. But it is impossible to do that at the moment, and this now is the only course open to the Oireachtas so far as this Presidential election is concerned. I would respectfully ask the Ceann Comhairle not to adhere to what is such a rigid ruling, because I gathered on the last day that the sense of the House was that the commissioner should not have this particular power. I do not know that the Minister who is in charge of this Bill had really any objection then to that point of view. I really think he had not and that he was sympathetic towards it.
There is one particular point to which I should like to draw attention. It is laid down in the Constitution that 20 members of the Oireachtas may nominate the President, but if consideration is not given to this Bill it may mean that four commissioners may exercise powers similar to the powers exercised by 20 members of the Oireachtas, including the members of the Executive Council.
And these four commissioners could be civil servants.
It was observed by Deputy Norton that when Article 12 of the Constitution was under consideration the difficulty relating to the powers of commissioners was not adverted to. It has been stated by Deputy O'Sullivan that he does not seek to amend the local government law by this Bill; it would not be legitimate to do so. As to the point made by Deputy Norton that certain matters were not adverted to, it is quite possible that matters relating to other phases of legislation may arise similarly. Is it suggested that as regards all statutes that are affected in any of the Bills introduced to implement the Constitution, the law in respect of these should be amended in such implementing Bills? I do not think it is within the scope of this measure, the sole purpose of which is to implement some provisions of the Constitution, to amend the Local Government code or to seek to define or limit the powers of the commissioners. If a one-clause Bill were introduced to achieve the purpose aimed at in the Deputy's amendment it would be a very different matter. It would thus be done expressly and apart from this measure.
I put this point to you, Sir—this Bill will become law before the amending Bill to which you have referred can become law. When the Oireachtas passes an Act giving such powers, there is naturally a reluctance to withdraw the powers by another Bill. However, that particular procedure may be open to a certain amount of objection. The position would be that we would have endowed the commissioners with certain powers and that we would then suddenly withdraw these powers.
This is a Bill to amend the provisions of the Constitution and, therefore, I submit that we are fully entitled to amend them and that any amendment or any provision that is necessary to secure what the House thinks a proper method of conducting the Presidential election is in order because this is a Bill to implement the Constitution. I take it it ought to take priority over any other Bills. If the House is of opinion that this is not a proper method of amending the Constitution, I suggest that it is within the competence of the House to put into this Bill provisions that will amend the Constitution in the way that the House wants it amended and not in the way it does not want it amended. I did not hear any attack yet on the provisions of this amendment and, on the last day here, I took it for granted that the House, if it had the power was not to be debarred from using it; that the House if it wished to amend the Constitution could do so by certain sections dealing with the Constitution in this way. I submit that nothing should stand in the way of that being fully done and that if, incidentally, we have in this way to cut across other Acts, that is the normal thing to do because we are merely doing what we are bound to do by the Constitution. This House passed a Constitution. It must proceed to the implementing of it and other Acts cannot hold up the manner in which that work is to be done by the Dáil if the Dáil thinks it should be done in a particular way.
I think that the Minister for Local Government and Public Health should make some contribution to this debate with a view to clearing up the position which is likely to arise under the section. It is clear that if two commissioners exercise jurisdiction in place of two county councils they will be able to nominate a candidate for the Presidency. These commissioners may be two civil servants responsible to the Minister. That is a situation which, apparently, we are to allow to go through in all its nakedness in this Bill without any serious effort to remedy it. Commissioners have certain functions in regard to the normal activities of county and borough councils and, in this Bill, we ought not to allow them such a meandering power as to go right into a Presidential election and nominate a candidate so as to prevent an election being uncontested even if every Party in the State desires that it should be non-contested. That situation was not adverted to when the Constitution was being discussed and I think the Minister should make some effort to deal with the position which is likely to arise if this Bill goes through in its present form. Otherwise, there is only one course for members who do not want this kind of farce to go through to adopt—that is, to vote against the section and knock out this novel provision whereby county councils have the right to nominate a candidate for the Presidency even though their powers are exercised by commissioners.
The Minister will appreciate that 20 members of this House represent about 140,000 voters, on the basis of 7,000 for each member. That is provided for in another Act. If the Minister thinks that 140,000 votes should be required to nominate a Senator in this way, he ought to be very chary about allowing commissioners the same authority. If we cannot get this provision corrected, we ought to wipe out the section altogether and provide some substitute method. It is farcical to allow a couple of commissioners the same right which is accorded to 140,000 voters.
It is certainly not my desire that any commissioner or commissioners should be in a position to interfere in a Presidential election because they happen to be in administrative control of certain counties. That is not the wish of the Government nor is it my wish and, apparently, it is not the wish of the House. Before the Second Reading of this Bill, and since then, I have considered the matter and I have asked various law officers to consider it. I have also had conveyed to me the views of the Ceann Comhairle. When we were on the Second Reading, I was put a number of questions. I had my own views— which, I think, were in accord with the views expressed here to-night—on the question as to whether commissioners should have this power or not but, because of the differences I had found amongst the lawyers, I did not say very much. I knew that there would be other opportunities. I had in mind that I could produce an amendment on Committee Stage. I had an amendment drafted but, when the views of the Ceann Comhairle were conveyed to me, I had to drop my amendment. I shall discuss the matter again with the Ceann Comhairle and, if he sees fit to accept an amendment, I should be prepared to put it down. I should be very happy to amend the section if possible.
There is only one other way of dealing with the position—that is, to amend the local government law, which I am quite prepared to do. It was never intended that commissioners should have this power and I do not think that, even if the power were given, any reasonable or sensible man would attempt to use it. However, that is beside the question. It is better—I think it is the view of the House generally—that the power should not be there if it can be avoided. If it is not found possible, after consultation with the Ceann Comhairle, to bring in an amendment which would meet his views on the question of constitutionality, I promise the House that, before Christmas if possible, I shall bring in a Bill—as nearly a one-clause Bill as possible—so to amend the law of local government that commissioners will not have power to take part in Presidential elections.
Why not repeal that clause altogether with regard to county councils?
Ask the Ceann Comhairle.
The Minister said that he had an amendment and had proposed to introduce it up to yesterday, when he learned for the first time that it was out of order. It is a pity that he did not think of introducing it in sufficient time for circulation. Yesterday was rather short notice to give the House of an important amendment, after consulting all these warring lawyers. We have, however, the promise of the Minister so far as the main issue is concerned. We are deliberately passing a provision which nobody wants. The Minister does not want it, the Government do not want it, the Minister's Party do not want it and the House does not want it. Therefore we shall pass it unanimously.
In the submissions made on the point of order much stress has been laid on the merits of the case. I should be going outside my province were I to indicate to what extent I agree with Deputies in that respect. To alter and amend the provisions of other Acts in implementing the provisions of the Constitution is not, to my mind, correct procedure. If it is desired to amend the local government code, as suggested by the Minister, it is quite feasible. I have not seen the amendment to which the Minister refers. I presume I shall see it before Report Stage. Meantime, I am not promising either to accept it or reject it.
May I suggest to the Minister that he consult his law advisers on this point? If this measure becomes law commissioners now acting and commissioners who may be appointed in the future will already have got certain powers and privileges under this Bill, which is a Bill to implement the Constitution. I put it to the Minister that it is unlikely—I put it no further than that—that he will receive legal advice that an amending Bill in respect of one of the Local Government Acts will override a measure which implements the Constitution.
I do not think I went into the merits of the case, but the case I want the Ceann Comhairle to consider is this: We are asked to implement the Constitution and we are not doing it the way the House wants. I hold that the desire of the House to implement the Constitution, which it is bound to do, overrides the ordinary rules of procedure.
I should be most happy, now as on all occasions, to meet the wishes of the House, but I am afraid I cannot do so on this occasion.
Has the Minister considered the possibility that when he comes to amend the Local Government Act, disarming the commissioners of the right to exercise their functions in respect of Presidential elections, he may be told that he cannot in that Bill amend the functions of the commissioners which are set out in this Bill? Is that a possibility? Is it possible that the Minister may be told, when he seeks to amend the Local Government Act, that not only must he do it there, but he must come back to the House and do it in this Bill? If that possibility is there, the promise which the Minister is making this evening, while of course, made sincerely, is really of no value to the House.
Will the Minister really not have to amend not merely the Local Government Act, but this Bill as well? And he cannot amend this Bill.
In the long run, the amendment is better than the course of action suggested and the Oireachtas can afterwards legislate in respect of any wrongs it may do itself. I think that even now, if it is possible for you, you, Sir, ought to permit the amendment to be moved.
I have ruled the amendments out of order.
Then we must vote against this section.
I must say that I cannot agree to allow this section to pass without challenging a division. Even as a layman, I cannot see how it is possible, once we have committed ourselves to passing this in its present form and given this right, in a subsequent Act to affect this issue. If it is out of order here to correct the interpretation of the words "county council", how can it be in order in another measure to do it? In consequence, I see no other course open to the House but to reject Section 9 and then some way out of the situation will have to be found.
Would it be possible to leave over this section for Report?
With regard to that, we are in the difficulty that, on Report Stage, the section does not come up unless there is an amendment, and we cannot move an amendment on Report Stage.
Unless the Minister agrees to re-commit the Bill.
Yes.
Would that mean that we would go through it section by section?
If necessary.
There would not be a desire for much discussion except on this section. If the Minister agrees to re-commit the Bill on Report Stage, we can leave it open.
Can we not go through the Bill now and re-commit it at the end. I was quite prepared, if the Ceann Comhairle saw fit to agree to some amendment, properly drafted, that would safeguard the situation. In view of what Deputy Cosgrave says, I am quite prepared to agree to what the House wants if we can find a way out. The suggestion of the Party opposite and of the Labour Party was not acceptable and the methods I had in mind were not acceptable either, and the only way out is to re-commit the section.
We will have to get a new Ceann Comhairle.
There is another point with regard to this section. Sub-section (7) states:
Where the Presidential Returning Officer receives from the council of a county or a county borough two or more nomination papers, regular on their face and relating to the same election, all such nomination papers shall be invalid and shall be disregarded.
I want to put to the Minister a possibility which might occur of a valid nomination paper being sent by a county council to a returning officer and subsequently a practical joker, or a person desirous of having that nomination paper declared invalid, going to the trouble of having another nomination paper for another individual signed and sent in. In that case, even though it were subsequently discovered that the paper was faked, the returning officer, as the section is drawn, would be bound to declare both nomination papers invalid. We had here many years ago a description of quite a number of incidents that happened in the world when very important personages were taken in by practical jokers, and in this case, if such a practice were indulged in by anyone, I can see no means, as the clause is drawn, of allowing the valid nomination paper to stand. I presume that the reason for the insertion of this clause was that a county council is not entitled to rescind its decision to sign a nomination paper on behalf of a candidate, but as a loop hole for a county council, if it desires to interfere it can pass a resolution putting up another candidate and then both fall. While steps may be taken to allow for a change of mind, I think that where a county council has made up its mind and taken the necessary action, it ought not to be at the mercy of some evilly disposed person or a person with a bent for practical joking whereby its decision with respect to a nomination may be destroyed.
I take it that if what Deputy Cosgrave has suggested may happen—and some things of the kind have happened in the past, as he knows and I know—it would not be possible for a person wishing to send in a faked paper so to complete the nomination paper that, with all the other things necessary, it would bear the seal of the county council. Section 9 (3) says:
"Every such nomination paper ...sealed with the seal of such county council and delivered or sent by post to the presidential returning officer."
I think there is a safeguard there against a fake nomination but there might be two nomination papers sent by a county council. That is the possibility, that perhaps at the first meeting there was not a majority of the members present, although properly notified, and that another meeting was called and a second nomination paper properly filled up and sealed. In that case what could the returning officer do? He will have power later, in conjuction with the judicial assessor, to make all the inquiries necessary to satisfy himself that the nomination is valid. Into every matter that he thinks proper it is open to him to inquire, and to examine the candidate or the agent upon it. If there are two nomination papers, and if both of them on their face are valid, I cannot see what the presidential returning officer can do with these two papers but to reject both.
There is a little word for which the Minister expressed a great liking some time ago, the word "may". Perhaps if he inserted "may" instead of "shall" at the end of sub-section (7) it would not be so disagreeable.
I quite subscribe to what the Minister said about the seal of a borough council or a county council, but it will be within recollection that within the past ten years in Great Britain a gentleman entered into voluntary possession of the seal of a county council for the issue of stock, and that huge quantities of stock were issued. That is not an easy thing to do. But it was done. It is possible nowadays, if a person could make one seal that he could make two. That might happen. What I am at here is, that where there is a valid nomination paper from a county council, and authorised by law, that nomination ought not be, by any machinery or by implication, declared invalid.
If there are two valid papers from a county council, what is the presidential returning officer to do? It is within the bounds of possibility, in the way I suggest, that in a county council there might be two different sets of men, and that within a fortnight the council might come to two different decisions and validly nominate two persons. What is the presidential returning officer to do then?
Both are invalid. One only is right and that one ought not to be declared invalid because of the other one.
Would it not meet the case if the words in sub-section (7), line 3, "on their face" were deleted? If the sub-section read:
Where the presidential returning officer receives from the council of a county or a county borough two or more nomination papers regular...
it would then become a question as to whether the second paper was in fact regular. If it was regular it would operate to invalidate the first paper. Where on investigation it transpired that, although the second paper was on the face of it regular, but was in fact irregular, the first paper would stand. That is what the Leader of the Opposition wants to secure. We all agree that a county council could on a "snap" division nominate one person, while the entire county council at a subsequent meeting might wish to undo that. It is a good thing that there should be machinery whereby they could do so. It would be highly undesirable to allow a practical joker or a forgery to destroy the nomination of a county council, and the course I suggest to the Minister would provide for that contingency.
The Minister envisaged a case where there are two papers, apparently valid, and he then asked what was the returning officer to do. I thought we would be told what the returning officer would do. I gather, if there are two nomination papers, that on their face are valid, the returning officer is precluded almost from making investigation. He must decide. While his investigation might lead him to say that one was a forgery, and the other not, still there is no remedy. Surely that is absurd.
There could not very well be, as Deputy Dillon suggested, a snap division, because there must be seven days' notice of motion given to the members of the county council, but members who might not attend in sufficient numbers in the first instance, on seeing who had been nominated, might later desire to have a special meeting of the county council called, at which a full attendance might reverse that decision and have another ballot paper. Both papers on their face are valid containing all the machinery necessary, signatures and seals.
The Minister is not dealing with the case put up. He is dealing with a case that was not put up. In the case the Minister described it was admitted that the papers would be declared invalid. The case put up here is a different one, not where both were validly done, but where one was genuine and the other a forgery. According to the Minister there is no remedy there.
If the first one were a forgery——
No, the second one.
——there are means by which the returning officer can discover that. He has it in his power when a nomination paper comes before him, to ask questions of the agents.
Is it not valid on its face?
It has the seal, but the Deputy suggests that it is a forgery and is invalid.
Is it not valid on its face?
Yes, but it is a forgery.
Is there power there?
Yes.
If there are two nominations is there power to say that one is valid and can be accepted?
Yes.
Where is it?
Section 14 (1).
At the ruling upon nominations every question relevant to the nomination of a candidate (including in particular his eligibility for election) shall be open and may be raised by the presidential returning officer or by any other person then present and entitled to take part in the proceedings.
But he is bound by other sections of the Bill.
Section 12 (3) says
Every question in relation to any nomination paper or the nomination of any candidate or any other matter connected with the nomination of candidates shall either be decided by the presidential returning officer or be referred by him to the judicial assessor under the next following section of this Act,...
They are all bound by the previous sections.
Before that happens the returning officer has two nominations from a county council. No matter whether they are valid or invalid he has two papers and one is fatal. I do not think the returning officer is required to decide there.
He is bound by the previous sections.
Supposing an objection is raised. If paper No. 2 is accepted and if paper No. 1 is invalidated, supposing the objectors are challenged to point out in what particular No. 1 is invalid on its face, what happens? I would be inclined to say that no paper is invalid on its face. I might know that the way in which its facial validity was secured was wrong, and that it was a forgery, but that would not entitle me to get a paper rejected or to have No. 1 paper maintained.
I suggest that there is power in the returning officer to make the necessary examination of every nomination paper received by him and to give a decision on it.
Yes, he must decide according to law.
Under sub-section (1) (a) of Section 12 he is bound to do a number of things. Paragraph (a) lays down that he is to produce all nomination papers received by him before 12 o'clock noon on the last day for receiving nominations, and paragraph (b) says he is to examine and rule upon all such nomination papers——
But he must rule according to Section 9.
He has full power to rule, according to his judgment, on the validity of every ballot paper.
No, he is bound to rule according to law, and in no other way.
Would the Minister consider inserting a clause such as this: "Not more than one valid nomination paper will be received from any county council."
That was the original draft, and the draftsman changed it.
Do not blame the draftsman. This is your Bill.
That, as I have said, was the original draft, but it was thought well to change it. I take responsibility for it of course.
After having put the blame on the draftsman.
No. Sub-section (3) of Section 14 provides:
The Presidential returning officer or the judicial assessor (as the case may be) may, for the purpose of deciding any question at issue during the ruling upon nominations receive and act upon evidence, whether oral or written, tendered to him by or on behalf of any party interested in such question, and may, if he so thinks proper, require such evidence to be given on oath and may for that purpose administer an oath.
But that cannot override what is the law.
Cannot the Minister put himself in the position of the Presidential returning officer. Two ballot papers are put before him. An objector presents himself and says that ballot paper No. 2 is bad and should not be allowed. That invalidates paper No. 1 as well. The Presidential returning officer asks what is the nature of the objection, and the objector says it is a forgery: that the seal was attached to it without due authority. The maintainer of the paper refers the Presidential returning officer to sub-section (7) of Section 9 which says:—
Where the Presidential returning officer receives from the council of a county or a county borough two or more nomination papers, regular on their face and relating to the same election, all such nomination papers shall be invalid and shall be disregarded.
As the defender of No. 2 paper, I say to the Presidential returning officer: "That precludes you from pursuing any inquiry on the question as to whether the paper is regular on its face or not. If it is irregular on its face, then you are entitled to rule within your discretion, but if the facts coerce you to say that the paper is regular on its face, my submission is that you are not entitled to go behind it under the terms of sub-section (7) of Section 9."
Suppose a question were raised by somebody that one of these papers was a forgery there is machinery by which the Presidential returning officer can discover for himself whether it is a forgery or valid.
Valid on its face. Who is to decide that?
What meaning does the Minister give to that phrase?
The Presidential returning officer, or the judicial assessor, is to decide whether it is valid on its face or not. He has the final word on the matter.
The Minister is asking us to pass this Bill. Will he tell us the meaning that he gives to the phrase "valid on its face?" I hope that he will not tell us he does not know. What does he think the phrase means?
As far as one can see from a paper that it complies with all the regulations laid down in the Act.
That is all right.
Question put: "That Section 9 stand part."
The Committee divided: Tá, 56; Níl, 43.
Tá
- Aiken, Frank.
- Allen, Denis.
- Bartley, Gerald.
- Beegan, Patrick.
- Boland, Gerald.
- Boland, Patrick.
- Bourke, Dan.
- Brady, Seán.
- Breathnach, Cormac.
- Breslin, Cormac.
- Briscoe, Robert.
- Carty, Frank.
- Colbert, Michael.
- Corry, Martin J.
- Crowley, Fred. Hugh.
- Davis, Matt.
- Derrig, Thomas.
- De Valera, Eamon.
- Flynn, John.
- Flynn, Stephen.
- Fogarty, Andrew.
- Fogarty, Patrick J.
- Friel, John.
- Fuller, Stephen.
- Gorry, Patrick J.
- Harris, Thomas.
- Humphreys, Francis.
- Kelly, James P.
- Kelly, Thomas.
- Kennedy, Michael J.
- Killilea, Mark.
- Kissane, Eamon.
- Lemass, Seán F.
- Little, Patrick J.
- Maguire, Ben.
- Meaney, Cornelius.
- Moane, Edward.
- Munnelly, John.
- O Briain, Donnchadh.
- O Ceallaigh, Seán T.
- O'Grady, Seán.
- O'Reilly, Matthew.
- O'Rourke, Daniel.
- O'Sullivan, Ted.
- Ruttledge, Patrick J.
- Ryan, James.
- Ryan, Martin.
- Ryan, Robert.
- Sheridan, Michael.
- Smith, Patrick.
- Traynor, Oscar.
- Tubridy, Seán.
- Victory, James.
- Walsh, Laurence J.
- Walsh, Richard.
- Ward, Conn.
Níl
- Anthony, Richard S.
- Bennett, George C.
- Benson, Ernest E.
- Bourke, Séamus.
- Brennan, Michael.
- Browne, Patrick.
- Burke, Thomas.
- Byrne, Alfred (Junior).
- Corish, Richard.
- Cosgrave, William T.
- Davin, William.
- Dillon, James M.
- Lawlor, Thomas.
- Linehan, Timothy.
- Lynch, Finian.
- McFadden, Michael Og.
- McGowan, Gerrard L.
- McMenamin, Daniel.
- Minch, Sydney B.
- Morrissey, Daniel.
- Nally, Martin.
- Norton, William.
- Dockrell, Henry M.
- Doyle, Peadar S.
- Esmonde, John L.
- Finlay, John.
- Fitzgerald-Kenney, James.
- Giles, Patrick.
- Gorey, Denis J.
- Hannigan, Joseph.
- Heron, Archie.
- Keating, John.
- Keogh, Myles.
- Lavery, Cecil.
- O'Brien, William.
- O'Leary, Daniel.
- O'Shaughnessy, John J.
- O'Sullivan, John M.
- Pattison, James P.
- Reynolds, Mary.
- Roddy, Martin.
- Rogers, Patrick J.
- Wall, Nicholas.
Tellers:—Tá: Deputies Little and Smith; Níl: Deputies Doyle and Bennett
Question proposed: "That Section 10 stand part of the Bill."
Motion carried. Section ordered to stand part of the Bill.
SECTION 10.
I think, Sir, there is an amendment to that section. The amendment is in the name of Deputy Brennan and reads as follows:
At the end of the section to add a new sub-section as follows:—
(3) Notwithstanding any provision of this section, a President, who has been impeached, and as a result of such impeachment has been retired from office, shall not be eligible for nomination as a candidate.
That amendment has been ruled out. It is outside the scope of the Bill.
Outside the scope of the Bill, or against the Constitution?
An interesting point arises in this connection, Sir, because the usual procedure is that the Chair does say that he rules out a particular amendment on the grounds that it is out of order for the following reasons, and so on. Is it that this amendment is outside the scope of the Bill, or what is the exact reason why this amendment is not admissible for discussion?
The Ceann Comhairle has ruled that that amendment is outside the scope of the Bill.
Outside the scope of the Bill?
The Ceann Comhairle communicated with Deputy Brennan.
As a matter of fact, Sir, the Ceann Comhairle did communicate with me but the communication itself was not very clear. However I should like to know how this amendment is outside the scope of the Bill. After all, the Constitution presented us with these Presidential elections naked, as you might say, and we are entitled to clothe them with something. Nobody anticipated that we would be so precluded from discussing the ways and means of getting a President or anybody else elected as we now appear to be. If this were in conflict with the Constitution or in conflict with the Bill, or if it imposed unnecessary restrictions upon anybody, there would be something to be said for ruling it out, but I think the House is entitled to know how that ruling has been made and how the Ceann Comhairle or anybody else has arrived at the decision that that amendment is outside the scope of the Bill. It is simply an attempt to prevent a person, who had been President of this country and who was impeached and ceased to be President, from renominating himself and imposing upon this country a very costly contest. Surely the House is entitled at least to do the sensible thing in these matters and to endeavour to save the country from such a situation as that. I am sorry that the Ceann Comhairle is not in the Chair at the moment, but I should like to know how he has decided that this is in conflict either with the Bill or the Constitution.
This is a Bill to deal with the election of a President by machinery. We can lay down qualifications which the President must fulfil in dealing with the election of President. Can we not legislate on that by law? Is not that the purpose of the Bill? Perhaps we might hear a submission from the other side, and then we might make a submission in connection with this matter.
On Second Reading, I drew the Minister's attention to the section and his reply was: did I think it likely that a President whom the House had impeached would again submit himself? It is not unlikely at all. If he thought the House had treated him unfairly, he might do it.
Can we not discuss this on the section itself?
We want to move an amendment. Unless we move an amendment, there is nothing open to us except to vote against the section. We may not wish to vote against the section if we can amend it. The section deals with the nomination of President.
Has not that matter already been decided upon on the Constitution? This is raising a matter already raised on the Constitution.
That is a new point which would raise a very wide question. If that were the ruling of the Chair, we would have to press very strongly to have the matter reviewed. I do not care to argue this hypothetically, but if such a ruling were made it would then appear that the Chair took to itself the function of determining whether legislation of this House was in accord with the Constitution. Of course, it was clearly envisaged when the State was established, and at all times since, that the constitutionality of any Act should be determined by the High Court, specially constituted for the purpose. Therefore, I do not think the Chair would adhere to the view that the amendment should be rejected and discussion on it forbidden, because it appears to the Chair that, in the event of that amendment being inserted, the Act when passed would be declared unconstitutional. That would go quite beyond the province of the rules of order, and create a very dangerous precedent indeed, restricting freedom of discussion in this House.
I think the Chair always refused to decide the constitutionally of anything.
That is so. The Chair never took on itself to decide what is in accord with the Constitution, but the Chair has decided that this amendment is not within the scope of the Bill, as before us. I think that matter was discussed with Deputy Brennan before.
It was never discussed with me.
The actual explanatory paragraph attached to Section 10 is: "Nominations by former or the retiring President." When we proceed to say that one type of retiring President shall be precluded from the advantage of renominating himself, it would be difficult to say that goes outside the scope of a section which professes to control the nomination by a former or the retiring President.
Does the Government really want this power? Is it one of the things we must pass unanimously because we entirely disagree with it?
This Bill is a matter of machinery, and Deputy O'Sullivan knows that as well as I do. When any suggestion is made to improve the machinery, I will accept it—anything at all in reason. If I can get anything reasonable from Deputy O'Sullivan, I will accept it.
Is this not reasonable?
I have nothing to say as to whether it should be allowed into the Bill. That is a matter for the Chair.
The Minister now makes two points: one is, whether it is reasonable; and the other is, whether the Chair will permit him to accept it. I asked him if this is a reasonable amendment. He does not know, and puts the responsibility on the Chair. The Chair may decide whether it is in order, but it is the Minister who wants something reasonable. Is this reasonable?
If the Deputy wants me to criticise the Chair, he will have to raise the matter in some other way.
The Minister could say, "If the form of this amendment is objectionable to the rules of order, I shall concern myself between this and the Report Stage to incorporate the principle of this amendment in some other amendment which will conform with the rules of order."
If I thought that an amendment with the idea contained in that would be accepted by the Chair, I certainly would accept it or move it.
Then the Minister accepts the principle of the amendment?
I do.
He will accept it if it can be brought within the rules of order. I understand that is the Minister's position.
Will Deputy Dillon then withdraw the present amendment and let it be redrafted?
Yes. I presume from what the Minister said that he does not want a President who has been retired as a result of impeachment to have the power to nominate himself for election?
Quite.
Then the Minister will undertake to look into the point and see if he can include a clause which will be in order and which will effect that purpose?
I will try, and I would be glad if the Deputies will try too.
We led the way.
That is all right then. The amendment is not moved at this stage.
And the Bill is being recommitted owing to previous sections?
Yes.
Amendment, by leave, withdrawn.
Section put and agreed to.
Section 11 put and agreed to.
SECTION 12.
Question proposed: "That Section 12 stand part of the Bill."
We appear to have discovered Boyle Roche's bird at last, because we have already been told in the Bill that the Presidential returning officer is to receive nominations up to 12 o'clock and the place where he is to do so is not specified. I take it, it can be Galway, Cork or somewhere else. Section 12 says that at 12 o'clock on that day he is to proceed, at a place which will be named and will, presumably be in Dublin, to do certain things. Therefore, he is to receive them up to 12 o'clock at an unspecified place and be at a specified place at 12 o'clock also. I do not see how it can be done.
Does the Minister propose to fill that lacuna?
No, I do not see the necessity.
Surely the Deputy has presented the Minister with a very obvious dilemma. If the Deputy has foreseen a dilemma that cannot arise, perhaps the Minister will explain how that is.
I am afraid I am too obtuse to see the point.
I am afraid you are.
Will the Minister tell us, if the Presidential returning officer is to receive nominations in Galway up to 12 o'clock noon on the 1st May, how he can produce these papers at 12 o'clock noon in Dublin?
It would be impossible.
Will the Minister satisfy the House that that situation could not arise under the terms of the Bill?
It is not necessary.
What is not necessary?
To provide that the impossible will not be enacted by this House. If the Minister means that there is to be only one centre for the production and ruling of the nomination papers, why does not the Minister say so? Is that not the simple thing to do? Why leave it open for an impossibility to be precipitated by regulation? Deputy Benson has pointed out that unless the papers are to be received and accepted under Section 12 in the same centre, it would be absolutely impossible to carry out the terms of the Bill.
That is so.
Why not now determine what that place is to be and so declare it, because the discretion that the Minister leaves himself in the Bill is worsened? It is eminently desirable that—and I think the Minister will agree with me—where legislation can be carried out without leaving a discretion to anybody, where it can be carried out by expressing the intention within the exact terms of the Bill, that is the best way to draft it. It is only where you cannot see your way that you leave a discretion so that the lacuna can be filled up subsequently. Is it not better in this instance to determine what the place may be so that no ambiguity can arise hereafter?
Under Section 6 (1), relating to the order appointing days, I think there is power to cover any point of that kind that may likely arise as to place and date.
I suggest that Section 6 (1) deals only with the place where the ruling of nominations will be made, not where the nominations will be received. Both functions may still take place at opposite ends of the country.
Suppose he did fix Galway to receive the nomination papers, there is only one Presidential officer. He could have Galway for the receipt of the nomination papers and Dublin for the ruling of them.
At the same time?
No.
The section requires him to be in the two places within a split second.
No.
Section 12 says that at 12 o'clock noon, on the last day for receiving nominations, the returning officer shall attend at the place appointed and shall produce all nomination papers received by him before 12 o'clock and shall examine and rule upon all such nomination papers. If at 12 o'clock he is going to rule on them, it must be in the same place. There is no distinction drawn between the time and the place for receiving them and for ruling on them.
I do not think there is anything in the point but I shall look into it.
Section 12 ordered to stand part of the Bill.
SECTION 13.
. . . . . . .
(4) The decision of the judicial assessor on any question referred to him under this section by the Presidential returning officer shall be final and shall not be open to review by any court.
I move amendment No. 7:—
At the end of sub-section (4), line 42, to add the words:—
provided that no nomination paper duly and properly subscribed by members of the Oireachtas or by the councils of counties or county boroughs shall be declared invalid merely because of a technical fault in the name or in the address of a candidate save in a case where the identity of the candidate is open to doubt.
I do not think that this amendment needs any words of mine to recommend it to the House.
Would the Deputy tell us what is a "technical fault"?
That thing for which the Court of Criminal Appeal would refuse to quash an indictment. There is a good precedent for it.
I am not saying that there is not but I should like to hear the Deputy explain what he means by a "technical fault."
There is a perfectly good precedent for it in the old Judicature Act. If there was any slight technical slip in an indictment, and that a person was convicted of the offence charged, he could go to the Court of Criminal Appeal and because of that technical slip he could be acquitted. That may have been in the court of first instance. I forget exactly where it was. That has been remedied and the Court of Criminal Appeal can now say that, although there was a technical slip in the indictment, if substantial justice has been done the conviction shall stand. All that Deputy Brennan seeks to provide is that if there be a technical slip in a nomination paper, but if it is manifest to the returning officer that the nomination paper has been properly subscribed, he shall not declare the nomination paper invalid.
If in one of these papers a candidate were described as Seán T. Kelly instead of Seán T. O'Kelly, that I think would be a technical fault, yet in fundamental principles the nomination paper would be valid.
It is set out pretty definitely in the Bill what a nomination paper must contain. All details as to the nomination papers are fully set out. In ordinary election times returning officers do not always rigidly follow the instructions laid down. As far as I have known, returning officers have always allowed a certain amount of liberty in that respect. A distinguished Deputy opposite is known to some of us as Professor John O'Sullivan and to others as Marcus O'Sullivan.
Only to members on that side of the House.
I think he is known pretty well to both sides by that name. If a returning officer got a nomination paper with the name John Marcus O'Sullivan and another with John M. O'Sullivan, I do not think he would declare them invalid because of these technical faults.
I gather the Minister sees nothing against the amendment, therefore he will not accept it.
I am entirely in the hands of the House. There is no Party question about it. It is only a question of getting the best machinery possible.
Getting us to do your job.
I do not want to deal with "footy" points.
Would the Minister accept the amendment now?
I have no objection to anything that will improve the machinery of the Bill.
Accept it and let us get on.
I do not see that improves it. It adds trouble to it but if it will make John Marcus O'Sullivan more distinct to the returning officer than John M. O'Sullivan I am prepared to accept it.
All the candidates may not be as distinguished as John Marcus O'Sullivan.
Amendment put and agreed to.
Section 13, as amended, ordered to stand part of the Bill.
SECTION 14.
Question proposed: "That Section 14 stand part of the Bill."
What is the meaning of the words at the end of sub-section (1):
"and entitled to take part in the proceedings"?
Is a member of the public attending the nominations entitled to take part in the proceedings?
There is in Section 17 a list of the persons permitted to attend the ruling of nominations. These are the persons entitled to be present.
Is a servant of the public authority or a clerk appointed to the presiding officer entitled to make an objection?
Nobody is entitled to be present except those set out in Section 17—the presidential returning officer and his assistants, and the other persons mentioned.
So any of the presidential returning officer's assistants may object to a paper?
Yes. Anybody who is entitled to be present may object. Somebody raised with me a question about the Press. Nobody in the House here has raised that question.
We have not got to it yet. We are very orderly members of this House. We do not jump ahead. We are not proleptic.
Sections 14 and 15 agreed.
SECTION 16.
(1) Any candidate may withdraw from his candidature at any time during the ruling upon nominations, either before or after he has been declared to be duly nominated.
(2) The withdrawal of a candidate under this section shall be effected by such candidate or his authorised representative delivering to the presidential returning officer during the ruling upon nominations notice in writing of such withdrawal signed by such candidate or by his authorised representative.
I move amendment No. 8:—
In sub-section (1), to delete all words from the word "during," line 29, to the end of sub-section (2), and substitute the words "by informing the councils or county borough councils responsible for his nomination or the members of the Oireachtas who nominated him not later than three days after the said candidate has been declared to have been validly nominated, and such candidate shall also serve notice in writing on the returning officer that he has so withdrawn within the said three days."
We think, Sir, it is necessary that some time should be given after nominations in which you might have withdrawals. There does not seem to be any sense in compelling a man who has been nominated to stick to his nomination. If he desires to withdraw it he ought to be given an opportunity to do so. For instance, a man might very well have agreed to his nomination, but, possibly two days afterwards, when publication of all the names was made, he saw that he had not an earthly chance, and I think it only right that he should be given a chance to withdraw. That is the real purpose of this amendment, and I should like if the Minister would accept it.
I think there is something in what the Deputy's amendment suggests, but I think if two days were granted it would probably be sufficient. I do not think it would be wise to insist that all the county councils should be notified.
Not all the county councils—only the county councils which nominated them.
There might be four of them. That might add very considerably to delay and also to uncertainly.
Why not give them two or three days to withdraw?
I think he ought be given three days, because even the Irish Press might not penetrate to the furthest corner of this island of ours within 24 hours, and a man might not know what company he was in for a day and a half. I think he should be given three days.
We have radios and all sorts of things nowadays. Perhaps the Deputy has not heard of them.
I was in a remote part of the country not very long ago, and I could not get a daily paper until very late. I think three days should be allowed.
I think two would be sufficent.
Why is it considered essential that a candidate nominated by a county council should have a statutory obligation imposed on him to notify the county council?
I am not insisting on that.
If the Deputy is not insisting on it, I would suggest to the Minister that it ought to be deleted. Suppose a man wants to withdraw. Suppose he has been nominated by four councils. In order to withdraw, under the Deputy's draft proposal, he should address a letter to the Presidential returning officer and to the four councils. Under the draft proposal, if he addressed the Presidential returning officer and three of the councils, omitting the fourth, his withdrawal would be invalid. Therefore, I would suggest that his obligation should be to address his withdrawal to the Presidential returning officer.
I propose to redraft it and put in two days, leaving out what Deputy Dillon suggests.
Why should there be a restriction to two days? Is it so urgent that we cannot put in three days? After all, the post in the country is not so very up-to-date.
I think two days should be ample.
The Deputy, in introducing the amendment, said that a situation might arise in which a candidate found himself up against such formidable competition that he would abandon all hopes. Another case might arise. All Parties agree that it would be desirable in these Presidential elections if an agreed candidate could be found who would have the common support of the whole State. A situation might arise where four candidates were put up, one of whom stood out as acceptable to all sides. There ought to be time for negotiation to try and induce the other three candidates, in the public interest, to withdraw, to avoid contest and have a unanimous election. With only two days, and three candidates to approach, the matter might be very difficult. One might say "I will withdraw if the other two will also do so," and by the time the whole three were approached four or five days might have elapsed. I admit that argument might be used——
It might be used the other way.
It might be used to argue for a week's extension, but one has to be as reasonable as one can. The Deputy has said three days. I am prepared to agree to three days. It certainly is an argument against insisting on informing the county councils.
What is the reason for the haste? Is there any objection to giving a week? It might save a lot of expense. I should like the Minister to think it over.
There is another point. What Deputy Dillon says is quite correct as to the likelihood of the situation being eased perhaps, and agreement got from one candidate to withdraw if there was sufficient time. Might not the time work the other way? Might there not also be people endeavouring to insist on a man going forward?
He would go.
He is nominated anyhow.
If Deputies are quite satisfied that there is a strong wish for it, I have no objection.
I would ask the Minister to give a reasonable time.
And the Deputy thinks that three days are reasonable?
Yes.
I would prefer that the Minister would reflect on this for himself. I can conceive a situation arising where four candidates were put forward. When the provincial and national Press came to be persued in the course of the following week, a kind of general public sentiment would express itself that one candidate is the best man. That would have a powerful effect on the other candidates. They might say. "It is obvious that the whole country is swinging towards one man, and we will make a better show for ourselves if we get out and support him." That takes time, and unless there is some special reason for haste, I would incline to seven days in order to give the entire provincial Press an opportunity of making public opinion felt. At the end of seven days, if they wanted to go into the contest they would know what the public opinion was. As we grow older in politics in this country, public opinion will probably manifest itself strongly towards the avoidance of complicated contests. I would ask the Minister to turn the matter over in his mind, and if he can see his way to giving seven days, I would prefer seven days.
Amendment, by leave, withdrawn.
Section 16 agreed.
SECTION 17.
Question proposed: "That Section 17 stand part of the Bill."
What about the Press? What are the Minister's views?
It was suggested to me that it might be wise to have the Press.
What is the Minister's view as to whether it is advisable to ensure the regularity of proceedings at the nomination of candidates for the presidency by getting publicity for all the proceedings? The only way you can get that is by admitting the Press.
Of course the candidates themselves or the agents of every candidate will be present. They will naturally look after their interests and see that the Presidential returning officer and his judicial assessor obey the law, but I have no objection at all in principle if anybody thinks the Press ought to be there.
There is this danger, that if you do not admit the Press you may have tendentious allegations made by the representatives of one candidate or another that there was an irregularity committed in favour of one particular candidate. That candidate comes forward and loudly protests that there was no irregularity. The presiding officer is restricted to a formal repudiation of such an allegation, and it is a case of one man's word against another's. If the Press are present, and report accurately the proceedings as they saw them, it rather lifts the whole business out of the realm of accusation and counter-accusation, and other things which might arise if the Press were not there.
Does anybody raise an objection to having the Press present?
I suggest that the Press should be there, but it should be made clear that the members of the Press are not entitled to take part in the proceedings or object to the nomination of a particular candidate.
I notice that the Minister seems to anticipate something in the nature of riot or civil commotion. Under Section 17 I do not think that the Gárdaí could be admitted, even for the purpose of keeping order.
Is there any provision for the admission of the Gárdaí to this function? There must be, because the Minister has been arguing stoutly——
This section has relation to the nominations. It refers to the Presidential returning officer and his assistants. Now, the Presidential returning officer may require the assistance of Gárdaí. If he does they will be at his disposal.
Then would the Gárdaí be people entitled to take part in the proceedings and would they be entitled to object to some of the persons nominated?
In such circumstances, would the Gárdaí be entitled to consideration and remuneration as assistants of the returning officer?
If a member of the Gárda Síochána attended these proceedings in a statutory capacity as an assistant to the presidential returning officer, would he be entitled to the privileges and prerogatives of others occupying that position, or what exactly would his position be? If such a thing arose, would he be made liable for wrongful arrest?
He might be asked to arrest himself.
He might even be asked to arrest himself, as Deputy O'Brien says.
First of all, I would like to know the position in regard to the Press and if there is any objection to the Press?
The Press should be there, only as Press.
I have no objection to the Gárdaí being present. They are not provided for specifically here. Does the Deputy suggest they should be?
In the same category as Deputy Linehan suggests you should include the Press—that the Press and Gárdaí should be present without power to take part in the proceedings, without power, in fact, to object to the validity of the nominations. The Gárdaí might have to take part in the proceedings, might have to take a very vigorous part. I take it the Minister will bring forward an amendment on the next stage?
I will.
Section 17 agreed to.
SECTION 18.
Question proposed: "That Section 18 stand part of the Bill."
On Section 18, is it wise to leave so complete a discretion in the hands of the presidential returning officer as to say that if a riot breaks out he shall adjourn the ruling upon nominations to 12 o'clock, noon, on such subsequent day as he shall think proper? Would it not be better to say "as the Minister thinks proper"? Under the section as it stands you place it in the hands of the presidential returning officer to hold up the presidential election indefinitely.
I think under sub-section (2) of the same section there is power given to the Minister. It sets out that whenever a ruling upon nominations is adjourned, the Minister, if he so thinks proper, may by order amend the order appointing days by appointing a new day to be the polling day. That would necessarily affect the day of ruling upon nominations.
That might give rise to an awkward point, because you give the presidential returning officer power to adjourn such ruling to whatever day he thinks fit, and if the Minister and the officer do not agree, and the Minister refuses to make an order, what would then be the position?
Would it not be better to amend sub-section (2), giving the Minister the right by order to amend the presidential returning officer's order as to the subsequent day?
I will look into that matter. I think the presiding officer has the same power as is at present exercised in the case of the Dáil elections.
And has the Minister no overriding power in that connection?
No, as things stand at present. However, I will look into that.
Section 18 agreed to.
SECTION 19.
Question proposed: "That Section 19 stand part of the Bill."
So far as Section 19 is concerned, this is the same procedure as is at present adopted for Dáil elections.
With regard to paragraph (b), in mid-summer the people in the county districts may find it difficult to get in to vote until 9 o'clock in the evening. If there was power to alter the hour, say, from 10 o'clock until 10 o'clock, it would suit the country people better.
The hours set out in the section are the hours that are fixed for Dáil elections, and I think they are generally accepted as satisfactory.
I think they have been found inconvenient, in mid-summer anyhow. The people who have to work in the fields might not find it suitable if the hours are from 9 to 9.
You have not provided in the Electoral Acts for the hours for polling. The Minister or someone else fixes them in the proclamation.
I think not.
I think so. There was a question raised before the last general election as to a change of hours.
That could only be done by general agreement.
There was a suggestion that the hours should be from 10 to 10, and it was anticipated that that could be incorporated in the relevant order.
There should be at least 14 hours for polling.
If they are not able to poll in 12 hours they will never poll.
Section 19 agreed to.
SECTION 20.
Question proposed: "That Section 20 stand part of the Bill."
The Minister apparently misinterpreted what I said on a previous section. He pointed out that returning officers were people of the utmost integrity. I never said otherwise. On this Section 20 I might point out that the sub-section casts a certain amount of doubt upon the integrity of the returning officers. Now, I do not want it to go forth that I was finding any fault whatever as regards the integrity or honesty of the returning officers. What I objected to was that the accounts which might be questioned by the Minister for Finance were referred back in a particular way to which I objected.
Section 20 put and agreed to.
SECTION 21.
I move amendment No. 9:—
Before sub-section (3) to insert a new sub-section as follows:—
(3) Wherever in any case a local agent, from any cause, is unable or unwilling to act, a candidate may request the local returning officer to appoint a member of the Gárda Síochána to act either in place of such local agent or until such local agent takes up his duties and on being so requested such local returning officer shall appoint a member of the Gárda Síochána in place of such local agent.
I think we have had so much discussion on the matter of personation during the earlier stages of this Bill that there is little need for me to draw the Minister's attention to the matter just now. I do not know whether what I suggest in this amendment is possible in the form in which the amendment is worded. But I suggest that something should be done to ensure, if personating agents are not there, that somebody will be appointed to look after the work. I am sure nobody wants people to vote "early and often" except Deputy Tom Kelly. Some machinery should be set up and put into operation that would prevent personation taking place.
What does Deputy Tom Kelly think of the machinery provided to prevent people voting "early and often"? Does he think it is sufficient?
I strongly urge that one presiding officer, one poll clerk, and one Gárda are not enough where there is a heavy poll. An extra poll clerk should be provided by the returning officer where there is a very heavy poll expected. I know of cases where it was humanly impossible for one presiding officer, one poll clerk, and one Gárda to deal with the work.
That is within the province of the local returning officer. He can provide two or three or more officers if he thinks proper; there is nothing to stop him. It depends on the number of people on the register in the area.
Apparently that discretion is not availed of. I know of a polling booth where there were 650 voters on the register and exactly the same number of officers were provided by the returning officer as in a polling booth with only 150 on the register.
It may happen, but I have not come across any case like that. It is, as I say, within the power of the returning local officer to remedy that.
If the Minister would direct him.
If the Deputy thinks that proper arrangements are not made to safeguard the rights of individuals and proper facilities given for voting, I most certainly will write to the returning officer about it if the Deputy draws my attention to the matter.
I never knew of a case where the presiding officer was not capable of dealing with the number of people who came to record their votes. It is not additional presiding officers or clerks that are required, but extra Gárdaí who would be able to prevent people not entitled to vote, voting. What is needed are Gárdaí who would have been stationed for some time in the area and who would know the people. Personally I would like to see personating agents turned out of the booths altogether, and let the Gárdaí deal with personation. It would be much more satisfactory. What is needed is more assistance from the Gárdaí in the stopping of personation.
Possibly more Gárdaí are needed. It is within the discretion of the returning officer to provide sufficient presiding officers, poll clerks and Gárdaí.
Would it be worth while to put a uniformed Gárda at every table and so make some effort to stop personation? There are people in this House who believe it can be stopped by getting the Gárdaí to deal with personation. Personally I do not think you can ever get a true return in Ireland until the election machinery is so changed that before a man is allowed to vote he must produce to the presiding officer definite evidence of identification. I believe that personation could be brought to an end if the voter had to come along with his photograph in the same way as in the case of a passport, and if the presiding officer were furnished beforehand with the signature of the voter. The officer could, if he thought fit, ask the voter to sign his name there and then at the table, and that could be compared with the signature that had been previously handed in. Otherwise I do not think personation will ever be stopped. I am aware that some members of this House have stated that personation is not really wrong-doing. I know that a great deal of it went on during the last election. If it had not gone on there are people in this House who would not be here now. I personally think, as things stand at present, that the Guards will be the chief hope in preventing it; but unless the House adopts the idea that the person must prove his right to get a vote by being made to sign his name at the table, it will be impossible to entirely stop personation.
That is a libel on the rest of the country outside Dublin. It is a libel to say that personation goes on at elections.
Deputies
Oh, oh!
Will Deputy Allen contradict that ex-Deputy Corbett said at the late election at Galway that the only reason he was not elected was that he did not buy votes. What sort of votes could be buy?
That was not personation, but bribery.
Does Deputy Allen really believe that there was no personation at the last election?
I know that personation never takes place.
Intimidation was practised far worse than personation.
I might say, furthermore, that every Party strongly advised against personation at the late election. Deputy Byrne should speak for Dublin.
I think we have debated this at considerable length to-day and I have expressed my views. Deputy Brennan suggests in his amendment that the Gárdaí should be made personating agents. Surely that would not be wise, even if it were possible.
What Deputy Brennan has in mind is that there should be sufficient Gárdaí in the booth to deal with personation. At present there are not enough Gárdai to deal with it.
I question that.
The Minister may question it if he likes, but I ask him: How can a Gárda standing at a door where there are four booths deal with personation? No amount of questioning will enable the Gárda to do it.
Has the Deputy never seen police standing in a polling booth?
I have seen one Gárda at the door but none at the table.
Oh, I have seen them at the table.
I am speaking of the practice that prevails in the country. There are not enough Gárdaí to deal with personation. Furthermore, the Gárda do not act. I never have seen a Gárdaí challenging personation. If they did, the present procedure is cumbersome. It should be in the power of the Gárdaí to take down a list of the people who, they believe, have personated, and they could be proceeded against afterwards. Under the present arrangements that is impossible. There is one man in the booth, let us say, and he challenges and arrests a person who is attempting personation. If he leaves the booth with his prisoner, is there not then an open door for everybody to personate?
While agreeing that personation is rampant, that amendment is placing too much responsibility on the Gárdaí. Is an unfortunate Gárdaí in a country town to oppose Paddy or Johnny So-and-so? How will he stand before the local Cumann? It would be more than his job would be worth. He would be immediately transferred——
And Deputy Allen says there is no personation.
The Gárdaí should be kept away as far as possible from the polling booths if we want to keep any of them at all in their jobs.
Amendment, by leave, withdrawn.
Sections 22 to 25, inclusive, agreed to.
SECTION 26.
Amendment No. 10 not moved.
Question proposed: "That Section 26 stand part of the Bill."
On the section, the Minister will notice that sub-section (2) reproduces a provision which occurs in the ordinary electoral laws requiring that every ballot paper shall have a number printed on the back and shall have attached a counterfoil with the same number printed on the face. After every general election, the Minister will have noticed that correspondence appears in the papers regarding this matter. Somebody says that this constitutes a violation of the secrecy of the ballot and asks if it is not possible that his vote can be tracked down. The difficulty of doing that would be immense, but, theoretically, it is possible. The effect that that can have in rural Ireland is considerable. An unscrupulous person can threaten a voter in rural parts of the country that the way he voted will be discovered, and that, if he voted in the wrong way, then his old age pension or his housing grant will be taken from him or he will be victimised in some other way. Many cases of that kind have come to my notice. I have told these people, as I have no doubt the Minister would tell them, that, in practice, there is no possibility of anybody discovering how they voted. But it does give rise to anxiety in the minds of many people. Perhaps the Minister would tell us what necessity there is for numbering the paper. If there is no good reason why it should be done, why not abandon the practice altogether?
Should it not be obvious to Deputy Dillon that that provision is intended to deal with an election petition? If there are allegations of wrong voting, every vote can be fished up, scrutinised and identified in the case of an election petition.
Deputy O'Brien regards that as quite obvious. Suppose I allege in an election petition that I did not vote and the presiding officer's book is produced showing my name struck off as having voted. Does the election procedure entitle a returning officer to go back over the poll, abstract the vote which is the subject of objection and re-introduce a vote in accordance with my wishes?
If there is an election petition, that can be done. The wrong votes may be taken out.
Is that the whole purpose of the sub-section?
In the event of an election petition, the votes which have been wrongly cast are taken out and pink papers are put in. That might affect the result of the election.
That is so. If an election petition is taken on the ground of personation, the judge would insist on the paper to which exception is taken being found and substituted by the proper paper. That is why the voting papers are kept for six months. After six months an election petition cannot be taken.
Is it sufficient for a person to prove that one vote was personated?
Yes, if it affected the result of the election.
It is a nice question whether the secrecy of the ballot should be potentially violated in order to secure that a position which would occur only once in a century should be capable of rectification.
Section agreed to.
Sections 27 and 28 agreed to.
SECTION 29.
Question proposed: "That Section 29 stand part of the Bill."
Here, again, is reproduced a catalogue of question which appear in the Electoral Act.
With one addition.
Is the last question—"Have you attained the age of 21 years?"—an additional one?
It is.
I am glad it has been put in.
Section agreed to.
Section 30 agreed to.
SECTION 31.
Question proposed: "That Section 31 stand part of the Bill."
We have amended the Electoral Act for this purpose, and why not the Local Government Act? I mentioned that in connection with the previous ruling and I suggest that it be brought to the notice of the Chair.
Section agreed to.
Section 32 agreed to.
SECTION 33.
Question proposed: "That Section 33 stand part of the Bill."
It is provided in this section that: "If and whenever the polling at any polling place is wholly prevented or is interrupted or obstructed by riot or open violence, or persons are prevented by riot or open violence from proceeding to a polling place, the local returning officer... shall adjourn the polling... to the next following day..." That is mandatory?
Yes.
Suppose it is alleged that there is riot and violence, and the returning officer says that there is not sufficient riot and violence to warrant the operation of this mandatory provision, a petition may be based upon that and it may be subsequently decided that there was such violence. Is it desirable that a petition should lie on that ground, or is it the intention of the House to say that the returning officer may adjourn the poll if he thinks that the necessity has arisen? Riot and violence might obtain at 11 o'clock in the morning, and a person might be prevented from going to the poll. The returning officer's attention might be directed to the conditions, and he might obtain adequate force to suppress the riot, so that everybody would have an opportunity of polling. Nevertheless, if one individual says that he was not able to poll because of violence, and that the poll was not adjourned, an election petition might be founded upon that. Ought we to give the returning officer discretion to adjourn the poll, or do we desire to place a mandatory obligation upon him?
According to the section, it would be necessary that more than one person or a few persons should be prevented from polling. It would require something very substantial in the way of riot or violence to induce a returning officer to adjourn the poll.
I agree and I think that a certain discretion ought to be left to the presiding officer. He is given no discretion under the Bill.
If he is satisfied that there is riot and violence——
Not if he is satisfied but if, in fact, five persons come forward and say that they were prevented by violence from proceeding to the poll and the poll was not adjourned.
There would be ground for an election petition.
And it would apparently succed because it is stated in Section 33 that the returning officer "shall" in these circumstances adjourn the poll.
"Shall" under certain conditions.
The conditions being that they were stopped by violence from proceeding to the polling place.
That they were prevented by riot or open violence from proceeding to the polling place. He would have to decide whether the amount of violence in operation there, or the number of people prevented, amounted to riot or open violence.
That is what I want, but it is not in the Bill. I want the presiding officer to be the judge and you would effect that by saying that he may adjourn, if necessary, to the next day, that day not being a Sunday, Good Friday, Christmas Day or Bank Holiday; but if you say that he shall adjourn, they are entitled to go to the court and say: "We were stopped by open violence; he would not adjourn and, therefore, the poll was invalid."
I will examine it again.
Question put and agreed to.
Sections 34 to 39, inclusive, and First Schedule agreed to.
Question proposed: "That the Second Schedule stand part of the Bill."
Will the Minister say whether that part of the Dáil Electoral Act which gives a candidate for the Dáil free postage rights is applicable to this presidential election?
No, free postage is not included in this.
Why is that?
None but rich men will be eligible.
Why is election literature not allowed free postage here?
Why was it ever allowed?
In addition, may I ask as to the free use of certain halls and libraries which is granted to candidates?
How does all this arise on the Second Schedule?
I meant to go back to Section 31, with your permission, Sir.
That is going back very far.
Would the Minister not consider the advisability of allowing free postage? Otherwise, how will men who may not be Party men get an opportunity of putting their claims before the people?
I cannot allow this discussion to proceed on these lines.
Question put and agreed to.
Question proposed: "That the Third Schedule stand part of the Bill."
We can raise the matter on this Schedule surely.
It deals with the method of giving public notice, the right of the candidate to act personally, and restrictions on persons to be employed by returning officers. That is a fine wide scope.
The Deputy will have ample opportunity to raise it on the next stage.
Question put and agreed to.
THE TITLE.
An Act to regulate, for the purpose of the Constitution of Ireland lately enacted by the people, elections for the office of President of Ireland, and to provide for matters incidental to or connected with such elections.
Question proposed: "That the Title stand part of the Bill."
Will the Minister explain to me what is the process referred to as "enacted by the people"? What is the meaning of that expression? I never heard of it before, and I do not think it is known in constitutional law.
It has been known in the last few months.
What is the meaning of it? Does the Minister allege that the process through which the Constitution passed gave that Constitution the force of law?
Yes.
On what grounds?
I am not going to argue it here. It has been argued on the Constitution itself.
I have no recollection of it.
It was argued here in the House.
I suspect that the Minister does not propose to argue it, because the Minister has not addressed his mind to the question at all, but I think it is the first time this has been raised in the House in regard to the title of a Bill. I very much doubt whether, under our Constitution which is in existence at present or under the new Constitution which has been drafted, there is any power vested in the people to enact anything.
It is specially set out in the Constitution.
Not to enact anything. Let me ask the Minister this question: Does he suggest that, by referendum, the people could enact a poor law or a Road Traffic Act? Suppose a draft Act called a Road Traffic Act was submitted to the people by referendum and there was a referendum majority in favour of it. Suppose we stopped there. Does he seriously suggest that he could arrest and prosecute a person under the terms of that document?
No.
Then he agrees with me that there is no power in the people, by referendum, to enact?
There is, to enact a constitution.
I suggest that the pair of you get together for a few minutes and make up your mind, and then let one of you say it.
If the Deputy does not see the difference between a constitution and a Road Traffic Act, I cannot explain it.
There is no use in the Minister saying that if he does not say it he means to say it.
I would despair of explaining anything to the Deputy.
Does the Minister for Industry and Commerce contend that if a draft Bill is sent to the country, submitted to a referendum, and that referendum results in a majority for the draft Bill, it makes of that Bill an Act under which the Government can prosecute a citizen?
There is not even power to refer it to the people.
Here is the authority I claim for "enacted"— the Preamble to Bunreacht na hEireann. It sets out:
Atámaid leis seo ag gabháil an Bhunreachta so chugainn, agus dá achtú agus dá thíolacadh dhúinn féin.
That clears it up now.
It does not, I am afraid, for Deputy O'Sullivan, and I am afraid I shall have to read it for him in English. The Deputy is familiar with the first few paragraphs of the Preamble, so I need not read them. The last paragraph says:
Do hereby adopt, enact, and give to ourselves this Constitution.
Is the contention of the Vice-President and of the interrupter by his side that a Bill that goes through this House and passes this House itself changes the method of enacting?
This Constitution went through this House, and was adopted by this House and put to the people——
And enacted by this House.
—— with that phraseology in it, and enacted by the Dáil here with the assent of the people.
That is a different thing.
Does the Minister now say it was enacted by the Dáil with the consent of the people?
Yes.
Very well; we accept that. I will ask the Minister, then, to amend the title of this Bill to accord with his, and, no doubt, the Executive Council's view. This Bill, through an oversight on the part of the Minister responsible for introducing it, is entitled:
An Act to regulate, for the purpose of the Constitution of Ireland, lately enacted by the people...
The Minister has made a mistake. He will, no doubt, correct the mistake between this and the next stage, but if, when he goes outside now, he gets his tail twisted by the President of the Executive Council, he must have the courage to tell the President that he committed himself to the view that in the present Dáil Eireann that Constitution was enacted by Dáil Eireann, and by consent of the people, and that he is going to introduce an amendment. I lay the Vice-President 5/- to a halfpenny that he will not introduce such an amendment.
I never said I would.
If he does he will be sent home.
I never said I would do so.
I bet he will not.
Report Stage ordered for Wednesday, 3rd November.