Vol. 272 No. 6
I was wondering about the purpose of subsection (1) which reads as follows:
(1) A local election may, and may only, be questioned by a petition to the Circuit Court.
Why is it presented in that form? Why may a local election only be questioned by a petition to the Circuit Court? Where is the necessity for this?
Perhaps the Deputy would read through subsection (2) which states:
Where it appears to the Attorney General that a local election may have been affected by the commission of electoral offences, he may question the election pursuant to subsection (1) of this section.
People might suggest that there might be another way. This is apparently considered necessary in order to copper-fasten the matter. It may only be done in one way.
Why may it only be done in one way?
The parliamentary draftsman said that that was the only way to do it. I would not like to quarrel with him. He must have a good reason for this. In previous Bills this is the way it was done. The parliamentary draftsman must feel this is the proper way to do this.
Subsection (1) reads:
8.—(1) The court may, for the purposes of the trial of a petition, if it thinks fit, order—
(a) that all the votes cast at the election shall be counted afresh.
(b) that all the votes so cast in a particular electoral area shall be so counted, or...
What is the difference between (a) and (b)?
If we are talking of a county council, (a) means that it would be possible to recount the votes for the entire county; (b) refers to a particular electoral area and (c) covers the eventuality of a parcel being challenged—for example, somebody might say that 100 votes in that parcel belonged to another candidate. In such circumstances the contents of that parcel alone could be recounted.
What is involved here is an electoral area and not a whole constituency.
There might be a complaint about the manner, as a whole, in which an election was carried out in any county.
That would involve four or five electoral areas.
Perhaps.
Subsection (3) of this section reads that:
Where votes are counted afresh pursuant to an order under this section, the court shall cause the following to be ignored:
and paragraph (c) reads:
preferences recorded for any person who, with respect to the relevant election, is found by the court not to have been qualified for membership of the local authority.
Would this mean that the court would not order a fresh election? This subsection visualises that in the event of the disqualification of an individual candidate, whether he be an independent or a member of a political party, the count would continue but with that candidate being excluded. There seems to be no provision for a fresh election.
No. In such case the number one votes for that candidate would be ignored while the number twos would become number ones and the count would proceed in the normal way. It would be the candidate who would be found not to be in order, not the election. Therefore the election would be considered to be valid except for that candidate. It seems a fair way of dealing with this matter.
If such person had not been a candidate, somebody else might have been and, consequently, the story would be very different.
Great care will have to be taken to ensure that people going forward as candidates are suitably qualified. We are all careful in this respect as are returning officers. Therefore I do not think there is any danger involved here, particularly as the election would go ahead in the normal way.
Subsection (5) of this section provides that:
The costs of giving effect to an order under this section shall be paid by the local authority concerned.
This means that the cost would not have to be borne by the petitioner in the event of his losing his case. One notices throughout this Bill that the Attorney General is extremely well protected. We note that an individual who wished to lodge a petition would also have to lodge an amount of £300 to allow for the possibility of his not having a legitimate case. The overall responsibility for counting in the event of a petitioner succeeding falls on the local authority but in the event of the Attorney General bringing a petition and if it should be found that something wrong occurred—this might be the responsibility of the candidate —the local authority would have to carry the can.
Yes.
Can the Minister say why such an elaborate procedure is being adopted in regard to withdrawing petitions?
The whole idea is to ensure that no unfair arrangement could be made regarding the withdrawal. The aim here is to copper-fasten the situation so as to ensure that in the event of a person lodging a petition, there would be no way in which another person might arrange in some peculiar way to have the petition withdrawn. There would be no point in introducing a Bill here which on enactment would not cover all the points which should be covered. We could have had a one sentence section, but this would have rendered the section so full of holes as to be like a sieve so that in the event of a petition arising anybody could do as he wished.
I am wondering whether subsection (3) of this section might leave a petitioner in the position of infringing the Act without being guilty. The subsection reads:
Notice of intention to apply for leave to withdraw a petition shall be given by the petitioner by the publication in at least two newspapers circulating in the local electoral area to which the petition relates of a notice to that effect and the notice shall also state the time and place at which the application will be heard and that any person may apply to the court to be substituted for the petitioner.
What occurs to me in this regard is that in the first instance a petition is lodged with the county registrar, but for some reason the petitioner may be advised, either by his solicitor or by some other person, that there are no grounds for his case and consequently he decides to withdraw the petition. There is protection here to cover the eventuality of a petition being withdrawn because of some type of illegal deal—somebody getting at somebody —but there could be the case of a person who, acting in the heat of the moment and shortly after an election in which, perhaps, he had lost a seat by a very small margin, deciding that something wrong had occurred and that therefore he would lodge a petittion. Eventually, if he should be advised in a way that would allow him to see reason he would then have the problem of trying to conform with this section of the Bill. He gives notice of his intention to the county registrar and he fulfils the other conditions of the section but I am wondering how such a person would have the right to determine the time at which the application would be heard. The notice must also say that if somebody else wants to come in and act as a substitute petitioner, he can do so. There is nothing in the Bill to give an indication of how the county registrar will indicate to the petitioners that the case will be heard at 12 o'clock in such and such a place.
Deputy Lalor has given one side of the coin; let me give the other. Of course, the person who will give the time and date will be the county registrar. Therefore, before the notice goes into the paper, it will have to be verified with him. This is a very serious matter and will be considered carefully by all concerned. There must be a very good reason to take this step. No one would put in a petition in a fit of temper because he lost by a few votes; there would need to be a lot more in it than that. If somebody felt strongly enough to petition and then withdrew, there might be a suggestion that he did it under duress. Let us be brutally frank about this. It might be said that they have been bribed or threatened. That does not happen here but it does elsewhere. In case this happens, to enable somebody who cannot be bribed or frightened to carry on with the petition, which it is considered should be put in anyway, this is the procedure which has been adopted. It may be said that this is too elaborate but I can assure Deputy Lalor that the intention behind it is to make sure that if a petition is entered it must be put in for good reason and cannot be withdrawn lightly.
Did the Minister say that the returning officer will be obliged to give the time——
The county registrar.
Will the county registrar who in general elections is the returning officer be obliged to give the time and date? Does the Minister not agree that it is rather strange that, the obligation in relation to the notice in the paper should fall on the person who made the petition and was anxious to withdraw it when, in fact, it was the obligation of the county registrar to set the time and date? Would it not be more appropriate to include here that the publication would be made by the county registrar?
Why should it?
Is there any particular reason why the onus should be placed on the applicant?
Of course, there is. If somebody puts in a petition and then decides to withdraw it, the onus should be on him to carry out the regulations and not on somebody else. It is not the county secretary but the county registrar to whom the petition——
I did not mention the county secretary.
Deputy Molloy did suggest that it was the county secretary who, in this case, was the returning officer.
I did not hear the Minister correctly the first time.
The county registrar is the person to whom the appeal will be sent. He will fix the time and date of the hearing. The person making the appeal is the one who must decide if he wishes to withdraw and give notice, so that if somebody feels there is an ulterior motive in the withdrawal, and if he is involved in some way, he is entitled to carry forward the appeal.
It still seems strange that the onus should be placed on the petitioner to place the public notice in the newspapers. If he gave notice to the county registrar, surely the obligation should fall on the county registrar to issue the public notice that he had received notification of intention to withdraw and give notice to any person who wished to continue the petition or object to it?
Deputy Molloy must be consistent. We are talking about who will pay the cost in this case. The cost of the advertisement must be borne by the petitioner who has decided to withdraw. I think this is the fair and proper way to do this.
Deputy Molloy drew attention to the fact that it is the county registrar who fixes the time and place of the hearing.
That is correct.
I agreed with the Minister when he said that if a man put in a petition and for one reason or another later felt that he would not succeed, it is right when he originally field the petition that he lodge £300. The petitioner should pay for the advertisement in the two papers circulated in the local area. I try to visualise myself in such a position when discussing a matter of this kind. On the day I go to the county registrar to lodge my petition, I would probably be at loggerheads with him. When I go back with cap in hand and say that I wish to withdraw my reception would not be too good. The phraseology used in the Bill is that he intends to apply for leave to withdraw. In other words, the application for leave must be discussed.
I can visualise the situation where a registrar will not be in a position to indicate the date of the hearing. He must contact the Circuit Court judge, as is covered in the Bill, and the matter must be dealt with as expeditiously as possible. The county registrar and the courts fix the date of the hearing. The advertisement in the two papers circulating in the area for leave to withdraw the petition will state that the case will be heard on such and such a date and anybody else may apply to substitute as a petitioner if he has a chip on his shoulder. All that could be built into the Bill. I think Deputy Molloy's suggestion is extremely logical.
It is not.
I know it is not logical if it comes from this side of the House.
There is no need for Deputy Lalor to speak like that because I have been most reasonable today. I am sure everybody is anxious to ensure that this is done properly. The Circuit Court will have to decide whether the man is entitled to withdraw. If he is and gets his £300 back, I think—maybe I am wrong—it would be unreasonable to ask that the county registrar put in the advertisement and pay for it. If the court decides he is entitled to withdraw the appeal——
If it is not built into the Bill——
One does not appeal except for a very good reason. I do not know if there have been such appeals. If a person puts in an appeal it is for a very serious reason and if, having set the wheels in motion, a person withdraws the appeal, that, too, is a serious thing. If an appeal has been put in it should not be withdrawn frivolously. He wants to get back his £300 and he then goes on his way gaily, but somebody will have to pay the £10 or £15 for the advertisement which was put into the newspapers. I believe the section provides that the very least such a person would have to do is to pay the cost of the advertisement.
Surely the cost of putting in an advertisement is covered by section 9 (6):
The withdrawal of a petition pursuant to this section shall not affect the liability of any person (or of his estate) for the payment of costs previously incurred.
Any costs incurred up to the time of the withdrawal of the appeal would be borne by the person who had caused the expenses to be incurred. It seems very strange that the onus in this case is being placed on a person who is not in the law. The notice in a newspaper of intention to withdraw the petition is a legal notice. I submit that in such circumstances the publication of that insertion in the newspaper could be done by the county registrar and recouped under this subsection.
The cost, if any, will be decided by the courts. I cannot understand the answer to this. A person puts in a petition and having put it in decides that he will withdraw it. If that were to be the position anybody at all could risk his £300 for a while. The normal procedure in a legal notice is that the person affected puts it in and appeals. If a person decides he will withdraw the onus should be on him to put in the advertisement and to pay for it. This is the way we believe it should be done and I have no reason to change my mind.
I fully accept the good intentions of the Minister and I know the courts do not act very quickly. There are two or three newspapers circulating in my area and I would be obliged to put this notice in one of them. It issues on a Friday. I go into the county registrar and I tell him I am anxious to withdraw my petition. According to this legislation, the courts are being asked to act as expeditiously as possible. When I lodged my appeal originally I had a legitimate complaint. I have in mind the election of 1967. At this point I should like to know if a miscount can be termed an electoral offence as defined in this Bill.
No. If there is a miscount there is facility to demand a recount.
If there was a mistake in counting which was not discovered until two or three days afterwards, would that be regarded as an electoral offence for the purposes of this Bill?
I imagine it would because it would be an incorrect result.
The partition is based on the committing of an electoral offence.
Section 5 spells it out specifically. It deals with where
(a) a local election was affected by error or was not completed or was otherwise not conducted by the returning officer in accordance with law,
(b) a local election was affected by electoral offences,
(c) a person at a local election was, on the date of his nomination, not qualified for membership of the relevant local authority.
If this legislation had been in existence seven years ago I could visualise a certain situation in Mountmellick. At that time there was a slight error in the distribution of a surplus. There were only three votes between one person and another. It transpired that a recount would not have made any difference although it might have narrowed the gap. In such circumstances, at the time of the event the petitioner would have been in order. Then, having lodged a petition he would analyse the position. He would have found that another count would not change the result of the election and would immediately be tempted to withdraw the petition.
It is a remarkable provision that the county registrar has to make contract with a circuit judge. Supposing the county registrar tells me on a Wednesday: "We have got your application for leave to withdraw your petition. I have taken it up with the circuit judge and his lordship tells me he will hear the case this day week". At that stage there is not sufficient time for me to put my notice of withdrawal in the local papers. I may apply for leave to withdraw but I am not in a position to publish notice of my intention. I can go through the more expensive process of putting the notice into the daily papers which also circulate in the area. I was wondering if, because of the speedy late arrangement between the county registrar and the Circuit Court judge, I would be forced into that more expensive way of withdrawing my petition. The one thing about it is that there is nothing in the Bill which debars me from entering this notice in very small print in the lost property section, for example.
In my view it would be very easy to say that the notice of intention must be given and that the county registrar will have the power to put this notice in two local newspapers, the cost of which will be covered under subsection (6) of this section. This will be a problem, particularly where one is dealing with uncooperative county registrars, because to be able to comply with that section one must have the fullest co-operation of the registrar. The county registrar must be anxious to help the petitioner by letting him have the time, date and place of the hearing in good time to enable the petitioner to put his notice in the papers.
If the court, which would consider an application for leave to withdraw a petition, was meeting this afternoon at 3 o'clock I do not think a notice inserted in this morning's papers would be adequate to cover that case; but under subsection (3) of section 9 of this Bill, a notice in the evening papers would be sufficient. I should like the Minister's observations on these matters?
Deputy Lalor's selection of where to put the notice, in the lost property section, was a pretty appropriate place; but it would not do because the court has the right to decide whether it was put in the correct place. If the court decides that the notice was put in such a way that it was not, in fact, a notice, it is up to the court to deal with the matter. One thing which Deputy Lalor has missed out on is that this is almost exactly the same procedure which has operated before.
I have already established that it was inadequate and that I was unable to deal with it seven years ago.
I take the Deputy's point. It should also be remembered that one has 28 days to decide whether or not to appeal. If a person in that time has not made up his mind whether his appeal is in order or is a good one, that person should not be standing for election because he is a bit of a fool.
Some fools are elected.
Deputy Lalor mentioned what happened in the case of a town commissioner when one gentleman received all the votes. It happened in a Dáil election in Longford-Westmeath that there was an argument as to whether a surplus should have been distributed before someone was eliminated and because of the way it was done it was alleged that the wrong person was elected. We could all reminisce on this but there is no change from our existing legislation. If it was decided that the registrar should put in the advertisement then the taxpayer would have to pay for it; but if the petitioner inserted it, and is able to prove his case, he may get it from the courts. The section is fair enough as it stands.
Subsection (1) of section 9 states:
A petition shall not be withdrawn without the leave of the court and in giving such leave the court shall be satisfied that the notice given by the petitioner pursuant to subsections (3) and (4) of this section was reasonable,——
Is there anything in this Bill which lays down regulations which would enable the court to decide whether this was done reasonably or not? Is there any procedure laid down for the making of this notice which has to be complied with by a petitioner? The court is given certain powers in that it can demand that the notice should be put in in a reasonable fashion and yet nowhere in the Bill is there any direction or regulation specifying the manner in which the person should insert the notice. If the notice is to have this importance, which the Minister deems it should have by including it in subsection (3) of section 9, then there must be a good reason for requiring this to be done. If this is so there should be some guidelines or regulations to indicate to the petitioner the proper form which the notice should take.
There is no statutory provision as to how the notice should go in, but if the petitioner acts in good faith I am sure the court will accept it. The petitioner, immediately he petitions, sets something in train and it will eventually come to court. Even the permission to withdraw will come to court. He is taking a serious step. If a person puts a notice in the paper saying he proposes to withdraw his petition and if he is serious about it, he will make sure that the wording is clearly understood. I am sure the court will accept that. The court decides whether the withdrawal notice is properly inserted. This has been a regulation for some time and it is the one which, I feel will deal with the situation.
I note that the Attorney General is exempt under a subsection, but I expect that he is included elsewhere. If a petitioner lodges a petition and subsequently decides to withdraw it, he has to notify a number of people. But the Attorney General, if he lodges a petition which his legal advisers decide later not to go ahead with, does not appear to be under an obligation to give notice that a petition is being withdrawn. I expect far more withdrawals of petitions by the Attorney General than by the ordinary defeated candidate because I can well imagine pressures on the Attorney General to do something and he has 28 days to do it and to study the position.
I imagine that a very poor view would be taken of an Attorney General who would put in a whole series of petitions, as envisaged by Deputy Lalor, and then having to withdraw them. An Attorney General, having had a month to decide, who would put in a petition later to be withdrawn we would all agree would not know his job. I do not believe there is any danger of this happening. The Attorney General is a petitioner and if he puts in a petition he has to give the same notice as anyone else. It is only fair to point out that since the formation of the State there were only two petitions: a local authority one in Cavan in 1932 and one in Dublin in the 1960s. Those are the only two right down through the years, and I think we are labouring something which is not very important.
Why should the Attorney General, if he did decide to withdraw——
He would have to give the same notice as anybody else.
He has not to give a reason.
The court will have to decide——
Give him leave to withdraw.
I do not want to be accused of being smart-alecky, but I believe that we have a very big mallet under which there is a very small nut which we seem to be battering around. There is no major change in what is proposed here. It is considered adequate to cover what is required here. It gives some protection, and the only issue appears to be whether or not the notice to be put in should be put in and paid for by the appellant or whether it should be put in by the registrar, in which case the taxpayer would pay for it. If a person puts in a petition and then wants to withdraw it, that is fair enough. But if he should so withdraw it then, (a) he should put in a notice and pay for it himself and (b) the notice should be put in so that, if his arm is being twisted or his palm greased, others should be able to take up the cudgels if they feel something has been done. I think everybody in the House would agree that this is correct.
I respectfully suggest that we have gone away from that point. I accept that the petitioner who has withdrawn a petition should foot the bill. We were arguing as to whether the money should be taken out of his £300. There is no doubt that in order to avoid the submission of flimsy petitions there should be some penalty. I have raised on subsection (2) the question of the unlikely event of the Attorney General putting in a petition that he would wish to withdraw. It is rather remarkable that we take every precaution to avoid the possibility of the man-in-the-street, a defeated candidate, or some disgruntled person lodging a petition which would not be a serious one or one he could stand over. This is not a question of a big mallet trying to hit a small nut; it is spelt out in sections 2 and 4. There is justification for section 4, because there is no point in having the Attorney General notifying the Attorney General that he is withdrawing a petition. But I see no reason why, if the Attorney General decides to apply for leave to withdraw a petition, he does not have to state to the court the reasons for the withdrawal. It does not make sense.
If we go through the whole thing, perhaps we shall throw a little more light on it. Section 9 (2) says:
Except in the case of a petition presented by the Attorney General, when applying for leave for the withdrawal of the petition, the petitioner shall submit to the court an affidavit stating:
(a) the reasons for the proposed withdrawal; and
(b) that, to the best of the petitioner's knowledge and belief, neither an agreement nor an undertaking has been made or entered into in relation to the withdrawal of the petition in consideration of any payment or the cesser of membership of a local authority of any substantial reason not stated in the affidavit.
Do I take it from Deputy Lalor's statement that the Attorney General who after all is in a very responsible position, should be prepared to give such an affidavit? Does he suggest that if the chief law officer of the State says that he is withdrawing a petition, the same as if he were withdrawing a case which had been taken against somebody in the courts, he should have to give a reason for the withdrawal? Does Deputy Lalor not admit that this would be just a little bit over the top? There is a set of regulations laid down for people who make a petition and there is a set of regulations laid down that the Attorney General can make a petition if, I assume, fraud or anything else is involved, and if he decides that there is no fraud, he is entitled to withdraw the petition. To suggest that he should also make an affidavit that he is not involved or was not bought out to withdraw it is going a little too far.
Would the Minister concentrate on subsection (2)(a), not (2)(b)?
The reason for the proposed withdrawal?
Yes.
If we are interested in administrative law we must admit that the Attorney General, no matter what Government are in power, is in a special position. What the Deputy is proposing was not in previous legislation, and I do not propose to put it into this. Whether the Attorney General is representing the Fianna Fáil Government or the Coalition Government does not make any difference. If it is something that should have been done, why was it not done down through the years.
That was not a reason.
I do not know why the Opposition are filibustering on this.
There is no filibuster.
They obviously do not want this to be in before the local elections. If that is the case, why not say so?
Why have the Government cut three-and-a-half hours off the debate we could have had on this Bill?
There is a reason for it, and it is not what the Deputy thinks.
I know what the reason is.
It is a genuine reason.
If we were filibustering on this Bill we would have many more amendments down. However, the point that occurs to me from listening to the debate is that in the ordinary way a petitioner would be politically motivated, would he not?
I assume so.
And would he not be justified in suggesting that the Attorney General, who, after all is a political appointee, could also be politically motivated in this connection?
There was a Fianna Fáil Attorney General for some years, a county man of my own. It has never been suggested to the House that he was politically motivated as Attorney General. We do not want to do that; I would not do it, and I do not think the Deputy's party would do it either.
I am not suggesting that. It is the first time I have seen this Bill and the first opportunity I have had of discussing it.
I appreciate that.
We are not filibustering on this Bill. There is a very serious issue which we shall take up with the Minister later on in the Bill. I took the opportunity yesterday to read right down through this Bill.
From the Minister's reply to a number of questions raised here it would appear that this section or a certain percentage of the Bill is similar to previous legislation. He also reminded me that we had the same power previously. I have not looked at any of the previous Bills. As far as I am concerned, this one is new to me and I am trying to take it as I find it here. I am not suggesting for a moment that the present or any future Attorney General would do anything improper or irregular in this regard. I am fully conscious of the fact that somebody in the normal run may be charged by the Attorney-General and the charges may be withdrawn. But here we have a situation in which a petition is submitted to the court by the Attorney General only because of an alleged electoral offence or for any of the reasons outlined in section 5. The Attorney General— just as the petitioner—has 28 days to make up his mind, and is not, as the Minister says, likely to submit a petition. Nonetheless, the law grinds extremely slowly. With all due respect to the present and former Attorneys General, the Attorney General's office is not the fastest moving one. Where a petitioner might lodge his petition within seven days when he is given 28—he might lodge it two or three days after an election having been declared—history has shown that the Attorney General's office would lodge it on the 26th, 27th or 28th day because they would have to look into a number of factors.
I am talking here of the unlikely event subsequently of the Attorney General deciding to seek leave from the court to withdraw that petition. The mere lodgment of that petition has passed a shadow over somebody because a petition is not lodged unless there has been some alleged electoral offence. And, if there is an alleged electoral offence, the situation is that somebody is involved in that election campaign who is held up to public question, even by the petition having been brought. The Attorney General, subsequently, may decide to withdraw the petition. I cannot accept the Minister's argument when he says: "It happens in everyday life: it happens in the courts every day of the week where the Attorney General enters a nolle prosequi.” That is grand but the situation is that, in this particular instance, there is a man sitting in a county council chamber somewhere in the country. The Attorney General has lodged a petition and subsequently withdraws it. That urban councillor, county councillor or town commissioner is left in his seat in that area but he is subject to taunting from the other side to the effect that had not somebody got at somebody else he would not be there.
You would not say that at a county council meeting because there is no privilege there.
I could still say it even to the Minister—that only for something he would not be there.
You could say it here all right; you have protection here but there is no protection at a county council meeting.
I could say it at a county council meeting. The implication would be that but for the extra ten votes he got he would not be there. If the Attorney-General is required to state that the reason for the proposed withdrawal is that, following the fullest investigation, it has been found that no electoral offence was committed, then the man is cleared and the implication of committing an offence is not there. I do not accept as justifiable that the Attorney General should not have to give any reason. The Minister may say it has been there but I do not agree with it and I want to make that quite clear.
I very strongly support the point of view that the Attorney General, if he is withdrawing a petition, should be obliged to make a statement as to his reasons for so doing. The Minister says that similar legislation applied previously, not in the case of local elections but in the case of general elections. Was that the implication?
Local elections.
The 1840 Act?
Yes, it was dealt with down along the line.
Is it in the 1840 Act?
Not the 1840 Act; it was subsequently but it was a regulation.
Where?
I cannot tell the Deputy now but I will later on.
In the Minister's explanatory memorandum and in his general comments he states all the purposes of this Bill. If this is included already in some legislation or regulation, we are entitled to question the Minister why he feels it obligatory to bring this before the House if all he is doing is repeating word for word some power already in existence. Surely we are entitled to an explanation of that?
The law was found unconstitutional in dealing with petitions.
Yes.
So we are, in fact, bringing portions of the law together which are still constitutional. We availed of the opportunity, in introducing this, of tightening up the whole lot so that we could refer to this rather than to previous Bills. There is one point which possibly I should have mentioned earlier. When it comes to the court, the Attorney General will have to give the reason for his withdrawal. There is a difference in that he does not have to withdraw. He does not have to give a reason beforehand while other people do but he is the Attorney General.
The Minister is not saying now that these provisions were declared unconstitutional?
No, certain sections of the Act. The court for trying petitions was declared unconstitutional and we are bringing in sections which are still constitutional.
These matters do not come before the court at all; there was a special elections court.
There was a special elections court.
I think the Minister was not correct in what he said that this procedure applied because what we are doing now——
There was a special petitions court.
I know that. I said that. What we are laying down here are procedures for a court set up under our Constitution which is a different thing from the electoral court which existed.
No, it is not. It is a different way of dealing with it but it is the same procedure.
It has a completely different status altogether from the court which existed up to now to try matters such as these—petitions arising out of——
The last elections were fought under an unconstitutional procedure. There was no procedure for the local elections last time—for petitions—because they were declared unconstitutional. Nobody did anything about it. Now that I am attempting to put it in order I am surprised at what I might call an obstruction to having it incorporated in legislation.
Perhaps there is one thing the Minister has not yet accepted now that he is sitting in the Government benches, that is, that two sides can contribute to legislation.
Oh, yes.
Our only opportunity to contribute to legislation is when the actual piece of legislation that a Minister initiates comes before the House.
No. The Deputy had an opportunity before, when he was Minister, of introducing it but nobody did anything about it.
I am speaking about the legislation before the House now. The only opportunity we get to contribute to any legislation this Government brings in is here in this House, not outside, in the newspapers, in Press releases or anything else. It is here and this is the time and place for it. By implication, at any rate, the Minister is ridiculing our authority to comment constructively, particularly to suggest any changes whatsoever in the proposals he brings forward. The Minister has to learn to accept that the Opposition are entitled to make their views known and, if their views are not being accepted, they are entitled to exercise the only right left to them, which is to register their disagreement with the Minister by calling for a vote. These are our limited powers. I do not think it fair or just of the Minister to try to play down the important part Opposition parties can play here in Parliament or to deny us—as one might gather also from some of the Minister's comments— our right to make any criticism of some of the Minister's suggestions. We would expect the Minister to be open-minded on these matters. He has implied that he does not consider it to be a major piece of legislation. For that reason, one would imagine that he might be more amenable to consider making worthwhile changes if they are pointed out to him.
This Bill is in two parts. One deals with petitions and the other with certain disqualifications from eligibility to stand for local elections. There are about 23 sections of the Bill taken up with this important matter of petitions. It is made obligatory on a petitioner to state reasons for withdrawing a petition. He is required to sign an affidavit. Why does the Minister consider that such an elaborate procedure should be necessary merely for the withdrawal of a petition? Now I am asking him why, if he requires the petitioner to go to such lengths to make his reasons known and to sign an affidavit, he does not require the Attorney General also to issue a statement to the court on his reasons for withdrawing in advance of the court hearing.
Deputy Lalor made the very legitimate point that if the Attorney General brings a petition in a certain election one can take it that the reasons for such action by the Attorney General and who is involved will become generally known. On top of whatever reasons are known, rumour will add its own list of reasons. There will be quite an amount of speculation about who did what, who is going to be disgraced, which sitting Members are involved and who is going to lose his seat. That is quite a cloud to have hanging over an elected member or any elector entitled to vote in an election in the area in which the petition has been brought. If the Attorney General, having caused all this worry and probably hardship to the people involved and their families, subsequently decides that he has no real grounds for proceeding with his petition and wishes to withdraw it, surely under this section he should be obliged in the same way as an ordinary petitioner to issue a statement. We are asking for that. We deem it to be reasonable and it should not upset the Minister's equilibrium that much.
I am being very reasonable. I have told Deputy Molloy that I want this done properly, the way legislation should be done in this House. Because of a rather petty point last week—Deputy Molloy said he had not got a document which he felt he was entitled to get an hour earlier—I agreed to have this adjourned until today. The one nagging fear I have is that, for some peculiar reason of their own, the Opposition are attempting to hold this up so that it will not become law before the local elections. I would hate to think that was so.
That is not true. The Minister is jumping to false conclusions.
We will judge by the procedure as it goes along.
That is the worst of having a suspicious nature. It is ridiculous.
This is Committee Stage. Are we not entitled to raise questions without being accused of filibustering?
The Chair's opinion would be that the Minister is entitled to make a political point if he so desires and the Opposition are entitled to counter that political point if they so wish.
If the Minister keeps making that sort of political point we will be here for a month.
If Deputy Lalor wants to be narky he is entitled to be narky. That is his privilege. He is entitled to be here for a month if he wants to. All I am saying is that if this is so, the pious resolutions we had last week that we were all endeavouring to get this through before the local elections do not appear to be working out. I do not want to be awkward, but I should like to point out that the Municipal Corporation Act, 1882, and the Municipal Elections (Corrupt and Illegal Practices) Act, 1884, are what govern petitions. At the Dublin Corporation election on 23rd June, 1960, there was an action taken by a candidate whom it was hoped to unseat in regard to the constitution of the type of court they then had. The High Court ruled that the court was unconstitutional. Most of the rules are the rules which we are talking about here now. From that time until this was introduced there was, in fact, no court to try these things. I am putting together the legislation and including the rules which were considered to be the right ones to govern it.
Perhaps I am wrong but I personally believe that the Attorney General in any Government is in a special position. He is not in the same position as anybody else. If we were, he should not be Attorney General. I believe that what is proposed in the section is a perfectly fair way of dealing with it. The Attorney General does not have to give his reasons beforehand but he will at the court have to give the reasons why he is withdrawing. That is if a petition ever arises again. In view of the fact that there were only two that I know of since the establishment of the State it is most unlikely that we will have a spate of these petitions now.
As far as I can see there is nothing at all wrong with the section as it is. I believe it is right. Some of the Deputies on the other side believe it is not right. There is only one way to decide. If they feel strongly enough about it they are entitled to call a vote. I do not mind. I do not want to have to make the explanation again and again. I have given the fullest possible information. The Deputies will find, as the Bill goes along, that I will be most helpful and anxious to ensure that the Bill will be one which will protect the interests of all of us and everybody in the country who is involved in politics.
What is frustrating this side of the House is the fact that the Minister is not giving any substantial reason. We agree that the Attorney General is the chief law officer of the State and that he deals most of the time with matters not of a political nature. While a petitioner petitions on something which is acutely political, he may well feel that the Attorney General should go through the same motions as anybody else since he is a political appointment. I am not saying he would act in any way contrary to the dictates of his office, but Seán Citizen may feel that this militates against him. The Minister said that it would be ridiculous to have the Attorney General writing to himself but the Dublin city manager is also the county manager and he writes to himself. It would not be the first instance of an officer writing to himself. I do not think the explanations given are very substantial.
I hate to see Deputy Briscoe frustrated but he has put his finger on the nub of the argument. I believe the Attorney General, no matter who he may be and no matter who the Government may be, is in a special position. For that reason I think the section is right. I would not be prepared to withdraw from the position I have taken on this.
That summary of our position is not correct. We are not saying the Attorney General is not in a special position, we are saying that he is in a different position. But we are not at the same time excusing him from the obligation to give reasons for his proposed withdrawal of a petition. To illustrate our position better to the Minister I would again like to repeat that we are not, because we consider the Attorney General in a different position, requiring him to sign an affidavit. We are asking, because of this different position which the Attorney General would hold vis-à-vis an ordinary petitioner, that he should only be required to give a statement of the reasons for his proposal to withdraw a petition. One must consider that he can under the Bill as it stands notify intention of his proposed withdrawal and the court, which finally has to hear this matter, may not sit for quite a long time. Cases have been delayed for 12, 24 months or even longer and we say this is not fair because of the personal circumstances in which people who are affected may find themselves.
These individuals should not be left with a cloud hanging over them for such a long time. The fact of the petition being brought forward would give the impression to the community that these people were involved in some fraud during the course of the election or that they were elected councillors when they were not legally entitled to sit on the council, that the petition would affect their right to continue as members of the council. The Attorney General notifying his intention to withdraw the petition would not redeem the good standing of those people in the community because there would be no reasons given until the court was held. If the court were to be delayed for a period of up to 24 months, it would be placing those people in an invidious position. Therefore, we do not agree with section 9 as it is worded. We are asking the Minister to consider inserting a new section, or informing us now that he would be prepared to put it in on Report Stage, that the Attorney General be required to give reasons for his proposed withdrawal. That is not a lot to ask the Minister. Will the Minister not agree?
I do not want to continue this discussion.
Can the Minister not see the difficulties?
I do not believe Attorneys General now are any lesser beings than they have been since the time the original Act was passed. I would not be prepared to agree that the Irish Attorney General should now be required to do something which apparently it was not considered the British Attorney General had to do when he was operating here, something which our Attorneys General before now under previous administrations did not have to do. I would not agree that Attorneys General now and in future would have to do something which has not been required up to now. I do not want to be awkward about this but it is my personal view—and I am prepared to stand over it—that I do not think the Attorney General should be required to do this. It is as simple as that.
I should like to make it quite clear to the Minister that we are seeking standards higher than the British standards that were applied in this country up to 1921.
The Deputy's party did not require any standards at all over the last 13 or 14 years.
We did not take our Attorney General from the back benches.
The Deputy's party did not but over the last 13 years they did not make any provision at all. That is something which should go on record. We were simply left with no court. There was no court to hear the petitions if they arose. This may be one of the reasons why there is so much narkiness on the far side now.
Is section 9 agreed to?
We will reluctantly agree to it, but we appeal to the Minister to reconsider this position. We think it is unfair to individuals.
This section lays down penalties. In view of the offence which could be committed through fraud or some criminal offence carried out in the course of an election does the Minister really consider the penalties included in the Bill as adequate? We are all aware of the effect of inflation on the pound. Sometimes legislation is criticised for lack of teeth—that the poor judge cannot fine the person more than, say, £100, for committing some horrible deed, because that is what the legislation laid down as the maximum sum. In this case the maximum fine is £300. Is the Minister allowing for inflation in fixing a figure such as this? We might as well accept that if this Bill goes through now it will hardly come back for adjustment for many years. Therefore, this figure of £300 will stand for quite a number of years. A sum of £300 would be very little in some cases but in the case of a man of little means it might be a lot.
Of course the person can suffer three months' imprisonment as well. I think Deputy Molloy will agree with me that the punishment, whether it is £300 or £3,000, may not be as much as the punishment a person will suffer if he is proved to be have done something fraudulent. One of the things not very often taken into account when punishments are meted out is that one expects that a person who would be elected to a council would have a certain standing in his community. Apart from the monetary fine and imprisonment he would also lose that standing in the community. That, in my opinion, is a much bigger punishment than either the three months' or the £300. I suggest that the amount put in there is fairly reasonable.
Was that the penalty in the former Bill?
No, it is not the same. It was smaller in the previous Bill. It was £100 or something like that.
It is increased to £300 in this Bill. Was there a sentence of three months' imprisonment in the other Bill?
I think there was a sentence of imprisonment. Three months' imprisonment is the same no matter when it is. If it was 100 years ago it would have been the same. Inflation has not touched that.
Has the Minister considered that the judge might simply fine a person who is found guilty in one of these cases? A figure of £300 to some individuals is not a great deal of money, but to others it is a substantial sum. The degree of pain inflicted by the extraction of a fine can vary according to the means of the person involved. I shall be bringing up the same point when we are dealing with the Planning Bill later on. How does one arrive at a figure of £300 and deem that to be reasonable when one knows that the means of individuals in the community vary so much? I suggest to the Minister that where limits such as this are included in legislation a much higher figure should be written into the law. The discretion should be left to the judge, who in the course of the hearing would become aware of all the circumstances of the case and would be the best person at that time to decide the amount of the fine. I suggest that, where it became known to him that the person who was to be deemed guilty was not a wealthy man, he would in such a case properly impose a smaller fine, and where he felt the person was of substantial means he would impose a high fine.
The purpose of this operation would be to inflict the same amount of pain at the extraction on both persons and to do that by the size of the fine. If the limit is £300 then obviously there are some people who will feel they are getting off very lightly. He may not in all cases give a court judgement. For certain reasons he may only wish to fine in order to administer a sting, but there will be no sting for some people while there will be a sting for others. The question then will be whether the law is being applied equally to all citizens or whether in fact all citizens are equal before the law. Cases like this would indicate to me that they are not all equal as far as the law is concerned when means enter into the picture. I am sure the Minister will subscribe to this.
I am amused at Deputy Molloy's principle anent a means test for prisoners. Candidly, I do not see how that could be operated. The three months' is the kernel of the matter. Deputy Molloy says "O.K." and then he starts talking about whether it would be graded up or down if it was higher than £300. If the judge wants to punish he can fine the person £300 or give him three months in jail, or he can do both. No matter how rich the individual may be, three months in jail is three months in jail to the rich as well as to the poor and it might be a great deal more in the case of some of the rich. I am often as annoyed as Deputy Molloy is where monetary fines are concerned and you have someone rich enough to brush off a substantial sum by way of fine and who can, therefore, risk doing things others dare not do. At the same time we must be reasonable and I think it is reasonable enough to stipulate a fine up to £300 or three months in jail or both. I believe that should be a sufficient deterrent, particularly in the case of someone who has a certain standing in the community and who will lose that standing as a result of being debarred because of a fraudulent attempt to get elected to a local council.
Would the Minister tell the House how he arrived at that figure of £300?
The original figure was £100 and that was multiplied by three to make the figure a fairly sizeable one. Remember, there was no way at all of dealing with this sort of thing in the last two elections.
Was the £100 fixed in 1825?
The original was 1882.
In an effort to counter inflation we have the Minister multiply £100 by three. I should like if the Minister could indicate to us the thinking behind the section. The penalty is for the corrupt withdrawal of a petition. Is it the situation that someone has been elected and someone else brings a petition to upset that election? The man elected commits an offence if he tries to arrange with the petitioner that the petitioner will withdraw his objection. Does it take two people to commit an offence under section 10?
In order to make an agreement there must naturally be two people. If someone persuades the person who has entered a petition that he should withdraw it, either by threatening him or by bribing him, then this section applies to both. The person who offers a bribe or threatens commits an offence.
It also works in reverse?
No.
The offender visualised in that context is the elected councillor who is paying the petitioner so much to forget about the petition. Is the petitioner, if he accepts payment, also committing an offence? Would both the petitioner and the person getting at the petitioner be equally guilty?
Both would be guilty.
Would the Minister care to say anything further on subsection (2)?
This is what we have been talking about. The subsection provides:
In case the court substitutes a petitioner under subsection (1) of this section and is of opinion that the application for leave to withdraw the petition was the result of any agreement or undertaking the making of which or the entering into which is declared by section 10 of this Act to be an offence, the court may direct that the security for costs given by the original petitioner shall remain as security for the costs that may be incurred by the substituted petitioner and that, to the extent of the sum named in the security, the original petitioner and his sureties, if any, shall be liable to pay the costs of the substituted petitioner.
If the original petitioner withdraws and there is a substitute petitioner the original petitioner can still be stuck for the costs. If an attempt is made to withdraw the petition and someone else is substituting for the original petitioner, that someone else can have the £300 lodged. In addition to that, if the case goes wrong, the original petitioner can be stuck for the costs because he was the person who originally put in the petition and was in fact involved in some hanky-panky.
I accept partially what the Minister has said. I do not think hanky-panky or the illegal withdrawal are the only factors. Under subsection (3) of section 9 the notice is specifically put in. Taking it that everything is genuine and above board and the petitioner loses interest or, for some other reason, he wants to withdraw the petition, then there is nothing to prevent another petitioner moving in.
He cannot withdraw.
He can apply for leave to withdraw. Section 11 is there to enable a petitioner to withdraw. He is obliged under section 9 (3) to put a notice in the papers which enables an interested party to take up the cudgels on his behalf.
Section 11 (2) answers that.
A man may be given leave to withdraw. I can accept that.
Section 11 (2) states:
In case the court substitutes a petitioner under subsection (1) of this section and is of opinion that the application for leave to withdraw the petition was the result of any agreement or undertaking the making of which or the entering into which is declared by section 10 of this Act to be an offence, the court may direct that the security for costs given by the original petitioner shall remain....
If the withdrawal is corrupt the court may direct that the original security should stand. It would be a matter for the court.
With regard to the phrase, "In case the court substitutes a petitioner under subsection (1)" would it be possible for the court to substitute the Attorney General?
No, I do not think so. The Attorney General would take action on his own. It would be rather peculiar if the court substituted the Attorney General.
What kind of person has the Minister in mind as a substitute?
Somebody who applies. If a person sends in a petition and withdraws it correctly, somebody else may apply to be allowed to enter in his place. If the court agrees the second person should be the petitioner, that is the kind of person we are talking about.
It could happen that an individual might apply for a petition and subsequently indicate his intention to withdraw it. It might have happened that when he made the application for a petition the Attorney General was not aware there was anything wrong with the election but that it was brought to his notice by the person seeking a petition. If this person decided subsequently he was going to withdraw and if there was nobody else anxious to make an application for substitution, could the Attorney General substitute himself? Where is that provided for in the Bill?
He could but I would assume that the Attorney General would make an application himself rather than act under the heading of someone withdrawing his application. Deputy Molloy is correct in that he would have the right under the section to be the substitute but I would think it unusual if he took that course. I should imagine he would make an application as Attorney General rather than as a substitute for a petitioner.
Would the provision applicable to an ordinary person apply to the Attorney General also?
Yes, it would.
Therefore, in this section the Minister is deeming the Attorney General to be an ordinary person, whereas in section 9 he was deemed a special person.
I am not saying that, but I am not prepared to agree that the rights of an Attorney General as an ordinary person be taken from him, which is the inference in Deputy Molloy's statement.
What is the position in relation to a man invalidly elected to a subsidiary body? Subsection (5) states:
Where a person has been returned as a member of a local authority and, subsequent to being so returned, the person sits, votes or otherwise participates as a member in the business of the authority or purports to do anything by virtue of membership of the authority and is also declared by the court not to have been duly elected to serve as a member of the authority or not to have been qualified for membership of the authority, for the avoidance of doubt it is hereby declared that anything done by the person while so participating and anything purporting to have been so done, either on or before the day on which a copy of the said order is received as aforesaid by the secretary or clerk of the local authority shall, notwithstanding the order, be valid and effectual.
I can see the sense in this section. However there is the situation that a county council quite early in its existence sets up subsidiary bodies. Let us take the example of Councillor X who is deemed not properly elected but who has been elected to the vocational education committee or the county committee of agriculture. If he loses his position as councillor, automatically he forfeits the post he holds as a councillor on the vocational education committee or the county committee of agriculture. However both committees have power to elect non-council members——
He could hold his position as a non-council member.
That person would cease to be a councillor when disqualified. However a vocational education committee can have a certain number of councillors and non-council members and therefore there would be room for the disqualified councillor on the committee.
He would have to be put on as a non-council member. When disqualified, the person would cease to hold the position of councillor on the vocational education committee. Some other councillor would replace him, but if the local authority considered he was important enough that would not stop them putting him on in place of somebody else who was a non-council representative. He could not hold a position that should go to a councillor.
Under subsection (5) anything such a person has done while appearing to be a properly elected member up to the time of disqualification is in order. I am no more a legal man than is the Minister but I would be inclined to claim under the terms of the subsection that even if Councillor X is disqualified from being a councillor he is fully qualified to sit in a gathering such as the VEC where there are a certain number of councillors and non-council members. Under subsection (5) of section 15 he could legitimately claim to hold his place on the vocational education committee or on the county committee of agriculture, even though he was elected as a councillor.
Subsection (3) states:
(3) Subject to section 16 of this Act, where an order of the court determining a petition does not contain a declaration described in subsection (2) of this section, the vacancies occurring as a result of the order in the membership of the local authority concerned shall be treated and filled as casual vacancies.
I assume that means the person ceases to be a member of the subsidiary body and the post is filled by the council in the normal way as a casual vacancy.
Section 15 (5) provides:
Where a person has been returned as a member of a local authority and, subsequent to being so returned, the person sits, votes or otherwise participates as a member in the business of the authority or purports to do anything by virtue of membership of the authority and is also declared by the court not to have been duly elected to serve as a member of the authority or not to have been qualified for membership of the authority, for the avoidance of doubt it is hereby declared that anything done by the person while so participating and anything purporting to have been so done, either on or before the day on which a copy of the said order is received as aforesaid by the secretary or clerk of the local authority shall, notwithstanding the order, be valid and effectual.
That is, before or on that day.
A vocational committee is not, as such, a local authority. It is a subsidiary body. The person was properly entitled to vote on the day he voted himself onto the vocational committee. When the order is made he ceases to be a member of the local authority and the position is filled as a casual vacancy. That does not cover the subsidiary body. There are subsidiary bodies which can be made up of councillors only; but in the case of a mixed subsidiary body like a vocational committee or a county committee of agriculture I claim that subsection (5) protects Councillor X against removal.
As soon as he ceases to be Councillor X——
Subsection (3) provides: "... the vacancies occurring as a result of the order in the membership of the local authority concerned...", not in the membership of the subsidiary body.
It is the comma which is at fault. It provides: "... the vacancies occurring as a result of the order in the membership of the local authority concerned shall be treated and filled as casual vacancies." If he was elected onto the subsidiary body as a member of the council and he ceases to be a councillor, he then ceases to be a member of that body. He is not qualified because he is not a councillor.
The Bill does not say that.
Subsection (5) kills subsection (3).
The Second Schedule of the Agriculture Act, 1931, provides that a disqualified local authority member is disqualified from membership of the committee. There is a similar provision in relation to the VEC. That solves our problem.
Can the Minister tell us whether there is any provision governing councillors who are elected to represent the council on harbour authorities?
You do not have to be a councillor to be on a harbour authority. You have to be a councillor to be on a county committee of agriculture.
No.
Certain seats on the VEC and the agricultural committees are reserved for councillors and the council appoint them. You do not have to be a member of a council to be elected onto a harbour authority.
That is not correct.
It is correct.
A certain number of seats on harbour authorities are filled by local authorities.
Different harbour authorities have different provisions. If a local authority appoint a member onto a harbour authority because of the fact that there is a loan involved or something like that, subsection (3) deals effectively with that.
Is the Minister saying that, if a councillor elected to a county council is subsequently selected to represent them on a harbour authority as the county council representative is deemed not to have been an elected member following a court order on the petition, his membership of the harbour authority ceases?
It must cease.
That is covered under subsection (3)?
That would be my interpretation of it.
I cannot see where subsection (3) covers that. It refers to vacancies being treated as casual vacancies.
The vacancies occurring as a result of the disqualification shall be treated and filled as casual vacancies. It would be the same as if he resigned or died. The vacancy would have to be filled as a casual vacancy.
The wording of subsection (3) is "... the vacancy occurring as a result of the order in the membership of the local authority concerned shall be treated and filled as casual vacancies".
If he ceases to be a member of a local authority the vacancy occurring as a result of that is to be filled as a casual vacancy. If not, what does it mean?
It is not spelled out. It speaks about a vacancy that occurs in the local authority.
Somebody else gets the seat. He is not co-opted.
If there are 31 members of a local authority and one of them is deemed not to have been elected a vacancy is created which we are told under subsection (3) is to be treated and filled as a casual vacancy. There is no reference to his membership of a harbour authority or a health authority.
I am told that there is some provision. I cannot dig it up now. I have dug up two of them, and two out of three is not bad. I still insist that the reference here to casual vacancies does not mean that they will be filled by co-option. The whole point in the petition was to prove that the wrong person was elected. Somebody else then gets elected and there is no vacancy on the council. The vacancy which occurs must be on the other bodies and those vacancies are to be filled as if they were casual vacancies.
By co-option.
There are a certain number on all those committees who must be councillors. A certain number are optional. If I am elected as a member of a county council and it is found out afterwards that I should not be on it and I have been elected to a subsidiary body such as the vocational educational committee, what is the position? The county to which I am referring did not do what some other counties do, that is, give seats to nobody except councillors. I am eligible for a subsidiary body because we have our required number of councillors.
That is not what the Act says. This is the one dealing with vocational education committees and county committees of agriculture. I am quite sure there must be similar provisions in other Acts. If you are elected as a councillor on to that body, if you lose your seat as a councillor you also lose your seat on that body. Section 15 (3) of this Bill says that the vacancy will be filled as if it were a casual vacancy, in other words as if you resigned.
I am not legally minded but I doubt that very much.
Do the Deputy's council select everybody or do they select the number they are supposed to select and say: "Those are our representatives", and then select the others in the normal way.
That is what they do.
If they select a certain number of people as representing the county council, being councillors, if one of them ceases to be a councillor, he loses his seat. If they just happen to be members of the council and are also members of the body I do not think their membership would be interfered with unless the council wanted to remove them.
That is the point I am trying to make.
I always understood that a local authority could appoint a certain number of their members only and if they are entitled to five members on a vocational committee they cannot appoint six. The others must be outside the council.
Do you include the west of Ireland?
The others must be outside the council.
Is that remark being withdrawn about the west of Ireland?
I am only saying how well you can do things.
In replying to the points we have made I think the Minister has brought out the logic in regard to the faults we have found in the section. When the Minister was questioned about vocational committees and county committees of agriculture he said there is a clause in the Vocational Educational Act and in the County Committees of Agriculture Act saying that anybody disqualified from being a member of a council cannot sit on either a vocational committee or a committee of agriculture. That indicates to me that the flaw we find here was shown up at some stage previously and that there was a hole in the legislation that needed plugging. I presume this provision is built into the Vocational Act and the Agricultural Committees Act because somebody discovered that the previous version of this Bill in 1887 was found to be at fault. I wonder why the Minister in presenting this new Bill would not arrange to have this matter looked at so as to obviate the necessity that appeared to exist in regard to the other two pieces of legislation.
The Minister's reply to our queries firmly convinces me, as if I was not too sure already, that subsection (3), here deals specifically and solely with the actual membership of the local authority itself and does not extend to membership of the subsidiary bodies. The Minister's reply establishes that subsection (5) overrides subsection (3) in that any positive action taken, any voting or decision-making that the wrongfully elected county councillor took part in, must stand and that therefore the decision-making by which he himself was appointed to a subsidiary body must also stand and that he must still remain a member of that subsidiary body unless, as Deputy Callanan pointed out, it turns out that he is a sixth councillor where only five are required on the subsidiary body. Therefore the Minister might between now and the next Stage, or the time the Bill goes to the Seanad, try to clarify or clear up the matter by the addition of something to this section. Perhaps, again, that would clash with subsection (5).
I think the Deputy is missing one thing. It says: "... the vacancies occurring as a result of the order in the membership of the local authority concerned shall be treated and filled as casual vacancies." It is not talking about a vacancy but "vacancies" on the subsidiary bodies. The vacancy which would occur on the county council would be filled as a result of petition to say that somebody was wrongly elected, and the only way that could be proved is to prove that somebody else should have been elected. If that is proved, that vacancy is filled. It does not refer to a vacancy but to "vacancies" and says they should be filled as casual vacancies. That means that if somebody resigns from a subsidiary body during their life on the body such a casual vacancy—I suppose most local authorities so describe them—is filled by replacing by somebody else.
Deputy Callanan made the point about where there is a set number of representatives of a county council. If somebody is on a subsidiary body as a county councillor it would follow that if the person was not a county councillor he could not sit as a councillor on the body. Normally the entire number would be filled. I said earlier that I could not see any reason why the council, if they wanted to do so, should not take somebody off and put on somebody else in the non-council section. I am assured now that all the Acts have a section which makes this provision. For instance, the Health Act, 1970, provides that where a member of a board appointed by the council of a county ceases to be or is disqualified from being a member of the council, he also ceases to be or is disqualified from being a member of the board. Apparently this principle has been applied as the Acts came up right along the line. Therefore there is no point at issue between us and I think we are agreed that the situation is as I have stated.
It would be tidier and more logical that, instead of having it included in various Acts such as those dealing with vocational education and committees of agriculture and perhaps harbour boards, to include the provisions scattered over a number of Acts and set them out clearly here. I ask the Minister to do that because it is the tidy and logical thing to do. It would make our legislation more compact. It would not be necessary to have those sections or subsections in other Acts which the Minister has quoted if they were included and spelled out in this Electoral Act. A further section or subsection could be included to say what the Minister has been trying to convince us is a fact. In order to convince us finally he had to refer to two other Acts and he has not yet clarified whether there is legal provision in some Act to cover harbour boards; he does not know yet. He knows about the two other Acts each of which contain sections or subsections to do the job we are asking him to do here.
I am satisfied that it is covered in the individual Acts and that it is copperfastened in this measure.
Those who drafted the Acts dealing with vocational educational committees and county committees of agriculture felt that the legislation as it then stood did not spell out that elected members of a local authority who ceased to be members of local authorities were not by law members of the subsidiary bodies. We feel that in order to improve this legislation and obviate the necessity of having to retain those sections or put in new ones, perhaps in future Acts, the provision should be put in here and made perfectly clear.
In a situation where a local election has taken place—for instance, a county council election— there are a number of important subsidiary bodies such as harbour boards, health authorities, vocational education committees, agricultural committees and county development teams which are appointed by councillors from their own elected members. If any action or actions taken by a councillor or councillors before a court finds such councillor not to have been duly elected, is deemed lawful, are we encouraging a situation where a group anxious to gain control of all the subsidiary bodies could, through whatever means they might devise, manipulate an election unlawfully and at the first meeting or subsequent to it appoint persons to all of these boards representing the county council?
Assuming such people had attained a majority on the council, and all of the action in appointing those persons is deemed to be lawful—even though their own election to the council is deemed to be unlawful subsequently—does the Minister not think there is encouragement to groups to set about manipulating local authorities to achieve that end, and that the law will not upset their deed after it is done?
I do not quite follow that, although I understand what the Deputy is getting at. They would have to have a majority. I do not think that sort of thing could happen. The cure would be worse than the disease. If we said that any action carried out by a person elected wrongly—therefore not elected at all—but who has acted on the council over a period, either long or short, was unlawful, all sorts of things could happen. It would cause too many difficulties. Having weighed everything up, I believe that the best thing to do is to leave this section as it is.
The question of subsidiary bodies is also being tidied up. People are disqualified from these bodies for many reasons. Because of that, each of the bodies has a saving section in their legislation. Whether we include it in our legislation or not, they include it in theirs. Deputy Molloy's idea could cause too much trouble. The chances of its happening are slight. I do not believe it would happen.
The Minister said they would have to have a majority. Let us examine the position. Say, for example, that the Labour Party could assess their position as being two short of a majority on the council. Two of their members could use other means to get themselves elected unlawfully. These two would be involved in the election of two members unlawfully and only they could be brought before a court by way of petition, but the deed would have been done. That group in the council could have selected all their other supporters to take over representation on the subsidiary bodies, despite the fact that the majority which gave them this power was not a lawful majority at all. This Bill will allow that action to stand and to remain as a lawful act.
Deputy Molloy will appreciate that there is more danger that the party to which he belongs will do something like that than that the Labour Party will do it. Our record in local government has been first-class, right from the start of the local authorities here.
The Minister is missing the point.
I am not. Deputy Molloy is attempting to get a side swipe at the Labour Party. I should like to place on record that we have not got a bad record. Any party would need to have a majority. Deputy Molloy is going into the realms of fairyland when he talks like this. If we did not do this, we would be left with something which would cause so much trouble that it could upset all the local authorities and I would not like to be party to that. The system has worked well to date. I suggest that we leave well enough alone.
The Minister admits that there is a loophole.
Someone has always found a loophole in legislation.
The loophole is here.
Deputy Molloy may be right. There might be some peculiar way in which this could happen. Apparently I have more faith in the Irish people than Deputy Molloy has.
If a member of a county council becomes chairman of that body but finds he is disqualified from being a member and therefore from being chairman, and if he is chairman of the county development team, is there any Act in any other Department which would prevent him from being a member of that county development team?
To become a member of a county development team a man would have to be a member of a county council. If he ceases to be a member of a county council he ceases to be a member of a county development team.
An Act dealing with county committees of agriculture had a section dealing with that.
I have a number of these Acts. I can assure Deputy Cunningham that no councillor in that position, disqualified or otherwise, would be chairman of the county development team because the county manager is the chairman of the county development team.
The chairman of the county council is a member of the county development team.
The chairman is in the same position as anybody else. I believe the section is adequate.
Does subsection (3) cover this?
There is reference to "casual vacancies". It says:
Subject to section 16 of this Act, where an order of the court determining a petition does not contain a declaration described in subsection (2) of this section, the vacancies occurring as a result of the order in the membership of the local authority concerned shall be treated and filled as casual vacancies.
The way to fill a casual vacancy is by co-option in the ordinary way.
The subsection refers to local authority membership only.
If the petition is against the election of somebody to a local authority and it has been declared that that person should not have been elected, then it follows that somebody else is elected to replace him so that the vacancies—and that refers to the subsidiary bodies—are filled. We could argue about this all evening. There is not much point in it. The section adequately does what we set out to do.
Unless it is clear to us and to any ordinary person I do not see how the Minister can expect us to accept it. The Minister is putting great emphasis on the word "vacancies". The Minister is implying that because the word "vacancies" and not "vacancy" is used the reference is not only to a local authority but to subsidiary bodies also. How could anybody reach such a conclusion? The subsection deals with vacancies occurring in the membership of a local authority. There could be one vacancy or two or three. We have seen that an order from the court following a petition could disqualify more than one person. Therefore the word "vacancies" would seem to refer to vacancies occurring as a result of more than one person being disqualified by the courts.
If, say, any such persons are disqualified because of being deemed to have been elected incorrectly, how would they be replaced on the local authority?
The point I am making is that the reference is only to a person's membership of a local authority and not to his membership of other bodies.
How would they be replaced on the local authorities as a result of an election petition?
It says here that the vacancies would be filled in the way that it is usual for casual vacancies to be filled—by co-option.
That reference is to a different matter entirely. Persons who would be deemed to have been elected wrongly would be replaced by the people who should have been duly elected but who were not elected. I am talking of people who qualified for membership of a local authority as a result of an election petition. Therefore there would be no casual vacancies to be filled on the principle local authorities, so the casual vacancies must be on subsidiary authorities.
That would depend on the order made by the court. The court can direct that another person was elected or it may direct that the person in question is no longer eligible to be a member but it might make no order in relation to the filling of a vacancy. It says here that the vacancy would be filled then by way of co-option. The Minister throws his eyes upwards but the phrase used in the subsection is "casual vacancies" and it is this subsection under which, the Minister has said, membership of a subsidiary body would cease and not by way of a court order declaring the seat to have been filled by the next person on the list or by some other person who was a candidate in the election.
If the Deputy continues creating Aunt Sallys and knocking them down, I shall not help him to put them up again.
This is most unsatisfactory. Subsection (3) does not cover membership of subsidiary bodies.
Is membership of local authorities covered in subsection (3)?
Before Deputy Cunningham came in we discussed this question of the filling of vacancies for almost an hour so there is no point in attempting to go back to square one now. I do not propose to start all over again. I have given answers to all the questions that were put to me, and unless there is a wish to drag out the debate there seems to be no point in continuing further.
I have no wish to drag out the debate but the Minister made a statement which seemed strange to me. He said that vacancies on a county council would be filled——
What type of vacancies?
Vacancies arising as a result of a court order. The Minister said that these vacancies would be filled by somebody else who petitioned or as the court would decide. Therefore any such vacancy would not be a casual one. The question I have asked the Minister is whether a vacancy on a local authority can be a casual vacancy.
Deputy Cunningham has interpreted correctly what I said. However he asked the question repeatedly. This is another case of Alice-in-Wonderland. The Deputy asks a question, is given the answer but will not accept it and then proceeds to give an answer of his own.
I have given the right answer.
Through the looking glass, it could be said to be the right answer.
The vacancy on the county council cannot be filled as a casual vacancy.
The Deputy says so.
Therefore there can be no other casual vacancies except on subsidiary bodies. The Minister is saying now that the vacancy on the county council will not be filled as a casual vacancy and that the phrase "casual vacancy" here means nothing other than vacancies on subsidiary bodies.
Is that what the Minister is saying?
I said—this is the last time I shall repeat it—that if there is an election petition and if there is a decision by the court that a person was elected incorrectly, it follows that there must be somebody else who should have been elected instead. In such case that other person will be the one to fill the seat. Therefore when we talk of casual vacancies that would occur as a result of an order of this kind being made, we are talking of casual vacancies that occur on bodies on which a county council have placed people.
Is the Minister standing over that interpretation of subsection (3)?
I shall not tolerate the putting up of any more Aunt Sallys by the Deputy.
I do not think that the Minister understands his own Bill.
He is not making sense.
From the different arguments that are being put by the Fianna Fáil speakers it appears that either they do not understand the Bill or they do not wish to understand it. The point is that they do not wish this Bill to be enacted in time for the local elections. That is obvious now.
That is not obvious. I deny that there is any such intention on our part. Simply because——
Please, Deputy Cunningham.
Fianna Fáil took no action during 13 years to put this situation in order, but now that it is being righted they are endeavouring to upset our efforts in that direction.
It is for the Minister to explain what is in the Bill and also to ensure that the Bill covers each situation adequately. It is our duty to indicate in which areas the Bill fails to do what it is meant to do. The interpretation which the Minister is putting on subsections (2) and (3) seem contrary to what is the real intention of those subsections. Subsection (2) states that:
Where an order mentioned in subsection (1) of this section declares that, in the place of any person declared by the order not to have been duly elected or not to have been qualified for membership of a local authority, a specified other person was ascertained to have been elected, that other person shall stand elected as a member of the local authority on (but not before) the day next following the day on which a copy of the order is received as aforesaid by the secretary or clerk of the local authority.
It is clear that under subsection (2) an order can be made under subsection (1) and that a person can be deemed to have been elected in place of a person who is deemed to have been disqualified. Subsection (3) states that:
Subject to section 16 of this Act, where an order of the court determining a petition does not contain a declaration described in subsection (2) of this section, the vacancies occurring as a result of the order in the membership of the local authority concerned shall be treated and filled as casual vacancies.
Hear, hear.
These subsections read very differently from the interpretation of them that the Minister has given us. They say that where an order of the court does not declare the name of the person who shall fill this place, it shall be filled by casual vacancy. The Minister is saying that the reference to casual vacancy in subsection (3) refers only to membership of subsidiary bodies. I submit that the Minister has given wrong information to the House and I ask him to reconsider what he has said.
I agree with Deputy Molloy's interpretation of the subsection.
I am sure that if the Minister were to consult his advisers they would inform him that he has been wrong in what he has told us. If I am wrong I invite the Minister to point out where and how I am wrong in my interpretation of subsections (2) and (3).
The subsection is quite clear.
It is not. We read it.
It is quite clear.
What is not clear is what the Minister said in regard to subsection (3). I have listened to Deputy Molloy's reading of subsections (2) and (3). I have heard the Minister's explanation of subsection (3) and I accept Deputy Molloy's interpretation, which is contrary to the Minister's.
The Deputy is entitled to do that if he wants to.
I thank the Minister for his co-operation.
We will give the Minister time to think about it.
Deputies need not give me any time. I have gone adequately into this——
Where did the Minister go into it?
Deputy Cunningham was half way between Dublin and Donegal when we were discussing it. He has only now come into the House and is trying to tell us what to do. I am perfectly satisfied that this section covers adequately what we want to do. As far as I am concerned, there is no need to labour that point. Whether Deputy Molloy's interpretation is correct or not, the situation is this. There is adequate provision made to cover the subsidiary bodies in this section and in the legislation dealing with the other type of subsidiary bodies on which members of county councils are sitting. I cannot give any further explanation.
The Minister's explanation is contrary to the plain English contained in the section. Is the Minister standing over his interpretation of subsection (3)? Is that reference only to the filling by way of casual vacancy of their membership of subsidiary bodies. Does it not refer to any person who is a member of a local authority?
It could in fact cover a vacancy which might occur in a local authority also. It says: "vacancies which occur" not "a vacancy". If Deputy Molloy reads the section again he will see that it refers to any person declared by the order not to have been duly elected and refers further on to "casual vacancies". Casual vacancies cannot be filled unless this is interpreted as referring to more than one body.
Is the Minister standing over that interpretation?
Yes.
This is most extraordinary. I cannot understand this and neither can Deputy Cunningham. Can the Minister state where under section 2 an order of the court does not contain the declaration described in subsection (2) that the vacancy should be filled by a "specified other person", who fills that vacancy? If the order does not contain reference to a specified other person whom the court states to be the person deemed to be elected as against the person to be disqualified, and if that type of declaration is not made, how will the vacancy on the county council be filled?
It could be filled as one of the casual vacancies. "Vacancies" not "vacancy" is referred to.
The Minister is finally conceding that he was wrong. Under subsection (3) the vacancy is filled by way of co-option. Some time ago the Minister stated that subsection (3) only referred to the filling of vacancies occurring under subsidiary bodies where the elected member was deemed to be unlawfully elected. Is he now changing his position?
I do not propose to follow Deputy Molloy up and down the benches. If he wants——
If Deputy Molloy wants to score a debating point——
Deputy Molloy represents as many people as the Minister and has a right to ask these questions.
When Deputy Molloy was on this side of the House——
That does not matter. The Minister is in office and Deputy Molloy is in Opposition.
Deputy Cunningham, there is no need to become heated in this debate.
In 1961 the court decided that the legislation dealing with election petitions was wrong. From 1961 until Fianna Fáil went out of office nothing was done about it. Two local elections were held. Either of them could have been set aside and there was no law to deal with it. We have now introduced a Bill—not the first we have had to introduce—tidying up things which should have been done by Deputy Molloy and his predecessors when they were in office. Deputy Molloy, with the aid of Deputy Cunningham, now attempts to prove that the petty points which they are trying to dig out of sections mean that there will be a major catastrophe if we do not accept their word. As far as I am concerned this section, as drafted, is good enough for me. If Deputy Molloy does not like it, that is just too bad. I am prepared to co-operate with Fianna Fáil to have the Bill properly drawn up if the Deputy feels he has something of importance to contribute. In this case there is no question whatever. For some reason the Fianna Fáil Party have decided that they do not want this Bill to be in operation in time for the local elections. They have been acting like children all evening. If they want to do that, that is their privilege.
I plead not guilty to that charge.
I did not accuse the Deputy because he was not here.
There is no substance whatever in the Minister's allegation. We want this Bill passed before the local elections. Any statements by him on that score are completely and totally inaccurate. When discussing this Bill today we expected to get reasoned explanations of its provisions. The Minister in his statement, and by the position he is adopting, is making it very difficult for the Opposition party. I am 100 per cent convinced, until the Minister shows otherwise, that his interpretation of subsection (3) is inaccurate. He said that it only applied to the membership of subsidiary bodies, that is, membership by persons who had been elected to councils. If he is stating that that is the only purpose of subsection (3), then I deem that an extraordinary interpretation of a Bill which he has introduced into this House.
A preliminary reading of subsections (2) and (3) will show that the whole purpose of subsection (3) is to provide for the filling of vacancies which occur on councils where a court has disqualified a member and has not specified another person to be the elected councillor in that person's place. Where such a declaration is not made by the court, then under subsection (3) the vacancy is filled by way of casual vacancy. It is a bit much for the Opposition to be asked to accept from a Minister a misinterpretation of a section. I appeal to him to be big about this and accept that he made a mistake. If he maintains that he is right, we are in an awkward position because we do not accept that.
I said that Deputy Molloy should accept the fact that I agree that under subsection (3) "a casual vacancy" could mean a vacancy on the local authority. Because this also refers to vacancies, it must mean representation on subsidiary bodies. The whole question arises from the issue which was raised earlier, a rather ridiculous issue, in regard to somebody elected to a local authority wrongly and who was disqualified—a person who, while a member of the local authority had been nominated to a subsidiary body as a representative of the local authority. The question was asked whether he would retain his position on the subsidiary body.
We did not say that.
That was before the Deputy came in. That was the argument that was started. Let us get this thing clear. I said that such a person would automatically cease to be a member of the subsidiary body and that the vacancy thus created would be filled as a casual vacancy. It appears from subsection (3) that it also includes, if no order is made, a vacancy which occurs as a result of a court order on the local authority itself. It must include both.
Is the Minister then prepared to amend this at the Fourth Stage so as to include a provision that the vacancy would be filled as a casual one?
No, because all subsidiary bodies have their own legislation dealing with such disqualifications, not alone for election reasons but for other reasons.
So far it is only for other reasons. Surely the legislation dealing with vocational education committees introduced by the Minister for Education and that in relation to committees of agriculture by the Minister for Agriculture and Fisheries deals with vacancies caused for other reasons. This is new legislation and, therefore, those two Ministers must come back to have their existing legislation amended.
No. It simply states "disqualification". It does not give the reason for the disqualification. All of them that I have checked so far are done in that way and I do not think we should duplicate.
If there is a person on a vocational committee, how is he fixed?
What is the Deputy talking about?
It is very important. If a member has been recommended to stand for some party——
This is the wrong Bill.
——is that man entitled to be a candidate?
It has nothing to do with what we are talking about.
The Deputy will have another opportunity to ask that question.
The Minister has corrected his earlier statement. He said that subsection (3) only refers to membership of subsidiary bodies. Now, in a very half-hearted way, he has conceded that this subsection provides the means whereby a vacancy occurring on a local authority following disqualification on a court order can be filled as a casual vacancy. It would have been bigger of the Minister to stubbornness in adopting his earlier wrong stance in his interpretation of subsection (3).
I still do not accept that one can interpret in subsection (3) any reference to membership of subsidiary bodies and the Minister should be big enough to admit that this is an omission from the Bill, that there should have been another subsection to cover fully and adequately membership of subsidiary bodies to ensure that when a person became disqualified from membership of a local authority he would also be disqualified from any subsidiary body to which he had been appointed by the local authority. We pressed the Minister to consider the inclusion of an additional subsection to make it quite clear that membership of a subsidiary body is subject to disqualification. This was an omission and the Minister should admit it. It would be helpful if he would indicate that he is prepared to introduce an amendment on Report Stage to cover this omission. If he says that we will go on.
It is not an omission from the Bill. If somebody is disqualified by the court from county council membership and if he is representing the county council on a subsidiary body, then he is disqualified from such subsidiary membership. That is as it stands.
In separate legislation?
Separate legislation deals with it anyway, but the local authority themselves will appoint an existing member to the subsidiary body. If they appoint somebody who is not a member then they must take him off. Deputy Molloy is well aware of this, or he should be. Therefore, there is no reason to add words which are not needed.
The Minister is perfectly right. That is the £1 million you took from us in Cork and left us without the money for the good of the people of Cork.
Deputy Ahern, please.
What is the Deputy talking about?
About the £1 million you left us without in Cork——
Is it the £100,000 the Deputy is talking about?
We all know about that.
Go into the party rooms with the £100,000.
You blackguarded us right, left and centre.
What the Deputy has been saying is quite irrelevant and he must desist. The Deputy must not interrupt further.
I did not interrupt. I never interrupted anybody. The fact is that the Minister knows well that the money——
The Deputy must not interrupt further.
The Minister knows well that the money in Irish Steel——
I shall have to ask the Deputy to leave the House.
If that is the way you want it, all right.
We are dealing with the Committee Stage of a Bill and what you are saying is quite irrelevant.
It is not irrelevant at all. It is a fact.
If you interrupt again I shall have to ask you to leave the House.
I will leave the House because I am satisfied.
It is better that the Deputy should leave.
Is the Minister saying that the matter is provided for in separate legislation dealing with vocational committees, harbour authorities, county committees of agriculture and so forth?
Yes. Even if Deputy Molloy is not prepared to accept that this Bill covers it—I am but he is not—there is still legislation covering VECs, county committees of agriculture, health boards and so forth.
Which of the Harbour Acts?
If the Deputy would wait until tomorrow I might be able to tell him, or he could go to the Oireachtas Library and look it up. He has more time than I have.
Does the Minister think so. That might not be true.
It might.
We are satisfied that the Minister has now got it right in relation to subsection (3) but we are not satisfied that this section deals properly with membership of subsidiary bodies. The Minister says it is covered in separate legislation but we have no way of knowing that now without checking out the various Acts to which he has referred. If we find it is not covered we can put down separate amendments to change section 15 which we are convinced does have a serious omission.
It is only fair to point out that I hope to get this legislation through the House by tomorrow night.
The Minister is making a habit of holding threats over our heads.
It is not a threat. I am trying to be helpful by telling the Deputy we hope to get it through because the Seanad is meeting on Thursday to deal with this Bill.
I do not know how the Minister thinks he is being helpful.
If the Deputy does not want to hold the local elections he should say so so that we can take other steps.
There is no question of that.
It looks as if the Deputy does not want to hold them. The Bill must be made law this week if we are to have it before the local elections. If the Deputy wishes to stop it that is all right with me but he should let me know where we stand.
We are not anxious to stop this Bill at all. The Minister could have saved a lot of the delay which has taken place if he approached his own legislation with a more open mind rather than digging his heels in and adopting the attitude that he is going to defend every line whether he understands it or not.
Deputy Molloy stuck his heels in the ground last week and cried like a little baby because he did not get a sheet of paper an hour earlier than he got it thus holding this up for three or four days. If that is what the Deputy wishes to do, I can meet him on those grounds.
That is the attitude that is causing the Minister so much trouble.
It is causing no trouble at all. I got more legislation through this House than Deputy Molloy did during his three years.
If the Minister says that often enough maybe somebody will believe him.
The Minister knows that he adopted extreme measures to get some legislation through this House, measures which I never resorted to.
I had to. The Deputy never had to resort to that because he had a decent Opposition.
The entire discussion relating to the south and west of Ireland was cut short by the Minister's introduction of the guillotine which was an abuse of Parliamentary procedure.
We are dealing with section 15 of this Bill.
I wish to make it clear that I will be coming forward with an amendment to section 15 if I find there is no specific reference in the various Acts covering the operation of subsidiary bodies of county councils, dealing with the disqualification of members appointed from county councils who were elected members of that council and were subsequently disqualified.
Section 16 states:
Where as a result of the determination by a court of a petition an election is declared void or the number of persons validly elected to membership of a local authority is less than the quorum required for meetings of the authority, the following provisions shall apply:...
I suggest to the Minister that this question of whether there was a quorum or not following the court order arising out of the petition is inadequately covered by that wording. The situation could arise where a quorum would consist of the members from one electoral area who could be declared invalidly elected. If elected councillors in an electoral area resign their vacancies are filled by co-options. If those co-opted constitute a quorum there is a quorum of co-opted persons, casual-vacancy elected councillors. Is the section referring to any quorum or to a quorum of elected members as against co-opted members?
There will have to be a quorum of membership. This is the first time I have heard of a distinction being drawn between elected members and co-opted members. I always assumed that co-opted members held the same status on a local authority. There would not be any point in having people co-opted at all if there were first class and second class councillors. I take Deputy Molloy's point that if a certain number of councillors were not deemed elected the remainder of the council would be carrying on without representation from that particular area. The Deputy is well aware that time and again members from a particular area do not turn up for meetings but the meetings carry on if there is a quorum. If members of county councils are deemed to be members, they are members whether they are co-opted or elected to that body.
In the case of Donegal County Council which has a membership of 28 the quorum is specified in the standing orders.
It is usually one-third and one.
If, after the next election, representatives from a particular electoral area are debarred, as a result of a petition, from membership does this mean that the others in the interim form a new quorum? Do they have to change standing orders?
I do not think that would affect the issue at all. If, for example, six members from a particular area do not turn up for a council meeting the quorum is not changed; the membership of the council does not change. The quorum is fixed on the membership and not on the number of members who attend. I assume that the quorum, in Deputy Cunningham's case, is relative to 28 and not to the lesser number.
If enough were disqualified, one could arrive at a situation where the quorum laid down by standing orders would never be reached.
There is provision in this particular section for dealing with that.
This section refers to a standing orders quorum and not to whether a number of councillors turn up at any particular meeting. It is referring to a fixed figure which is adopted by each county council in standing orders. If the number of elected councillors remaining after a number have been declared invalidly elected is less than the quorum this section then applies.
That is the correct position. I assume from Deputy Cunningham's question that he was asking if a new quorum would be declared in the event of some councillors being disqualified. It would not. The original quorum would have to stand.
There are loopholes in this legislation which the Minister admitted but which he does not think need to be changed to cover every situation. If of the 31 members elected, 11 being the quorum, 25 members were declared invalidly elected could the remainder constitute a quorum?
They could not constitute a quorum.
