European Assembly Elections (No. 2) Bill, 1977: Report Stage.

Debate resumed on amendment No. 19:
In page 29, to delete lines 43 to 45, and substitute the following paragraph:
"(4) The local returning officer shall appoint a place within or convenient to the constituency as the place at which he will open the ballot boxes and arrange the ballot papers in parcels as hereinafter provided and shall at that place so appointed provide suitable accommodation and all furniture and equipment necessary for opening the ballot boxes and arranging of the ballot papers in parcels as aforesaid.".
—(Deputy T. J. Fitzpatrick,Cavan-Monaghan).

Before moving the adjournment on this debate I dealt with the security element involved. I do not think there is any dispute there. On the question of ruling on doubtful voters, I indicated that this could be done by the returning officer's staff under his supervision and drew attention to the fact that the returning officer could ask the local returning officers to assist him in this task at the central counting station. Deputy Fitzpatrick did not accept my view on that. He maintained that the returning officer should rule personally on every doubtful vote. He said that all these have to be scrutinised by the returning officer and not for a moment did he accept that as a matter of practice this is delegated by the returning officer or, indeed, that it would be possible to delegate it. It is possible to do so. Surely this is an odd argument for the Deputy to use when one considers that under his proposal the doubtful votes would be ruled on by 11 different people in 11 different places without any reference whatsoever to the returning officer. There is no reason why this duty could not be delegated to some of the local returning officers at the central counting station.

I raised the question of who could be responsible in the event of a discrepancy arising between the number of ballot papers alleged to have been despatched by a local returning officer and the number alleged to have been received by the returning officer. Nobody has seen fit to attempt to answer this question. Nor has anybody dealt with the bias that could arise in the distribution of a surplus if the first count were carried out on a county by county basis. Obviously if ballot papers are kept in county order it could make a very big difference if a surplus consists entirely of Clare votes or Cork votes or Limerick votes, in the event of a distribution of the surplus.

From the point of view of the time factor—this is a very important factor —the case for a central count is overwhelming. I mentioned that the question of the polling day had not been decided but that it seems reasonable to expect that it will be on a Thursday as far as we are concerned. Under the European rules which govern the Assembly elections ballot boxes cannot be opened until the Monday morning —the final vote in some of the member states takes place on a Sunday. We should utilise those days to get the ballot boxes to the central counting station. If that is done we will be able to start on Monday morning and proceed continuously until the results are ascertained. In my view it is in the interests of candidates that the count be over as quickly as possible. It is also important from the European point of view to have the elections over and the result declared in the shortest possible time because many member states have a more efficient system, through the use of computers and so on, of counting. A comparison has been made between the counting arrangements proposed in the Bill and the system used at presidential elections here. There are a number of differences between the two situations.

A presidential election is held on the basis of one constituency for the whole country, whereas the Assembly elections will be based on four separate constituencies. Therefore, there is no direct relationship between the two. At a presidential election there is only one seat to be filled and, consequently, there is no question of a transfer if there is a surplus. The most that can happen at the end of the first count is the elimination of a candidate or candidates. On the other hand, the count at the Assembly elections will follow the same lines as in a general election and will require a much wider range of operations because of this.

The result of a presidential election is usually known at the end of the first count. A second count has been necessary on one occasion only. At Assembly elections, it can be reasonably expected that a number of counts will be necessary before the results can be declared. A presidential election returning officer is obliged to check the ballot papers received from the local returning officers to satisfy himself about the first count. This process usually takes the best part of an afternoon. A similar check will have to be carried out by the returning officer at Assembly elections. If the first count were conducted locally this could result in considerable loss of valuable time and a further delay.

I am satisfied there is no valid comparison between the two systems, namely, the presidential and the Assembly elections, and that the counting arrangements used in the presidential election would not be appropriate to the Assembly elections. The arrangements I am proposing in the Bill were given careful and specific consideration by both my predecessor and myself. I am quite satisfied it is the more feasible of the two. I admit the two are feasible. It will be more convenient for the candidates who will be important people in this issue. The saving in time and the continuity will give an earlier result than the proposal in Deputy Fitzpatrick's amendments. We are saving valuable time. We will be able to declare the result of the elections much more quickly than if we held the first count locally. This is in the interests of all concerned, the candidates and the parties. It is also helpful to the media whose responsibility it will be to let the people know the results as quickly as possible. I cannot agree to the amendments put down by Deputy Fitzpatrick.

(Cavan-Monaghan): Listening to the Minister's reply I could not help remarking to myself that he went through his reply dealing with every argument which was put up, dealing with time, and trying to refute the arguments I put up by copy book arguments or mechanical arguments, if I might say so. Never once did he refer to the local element in it. Never once did he refer to the argument put forward by Deputy Kavanagh and myself that, if the count is to be centralised, the whole election will be centralised, and local interests will be taken out of it to a large extent. Therefore, the result is likely to be a reduced poll and a less democratic election than would otherwise be held. That is the essence of the whole thing.

I am dealing with this argument first because it was apparent from the Minister's argument that he was interested in mechanics and in time, and that he did not consider the human element, the local element or the local interest which a count in 11 centres would generate rather than one central count. The Minister said his arrangement had worked well and no argument could be put up against it because experience had shown that his proposal for a central counting place was the ideal. The only example he could give was the city of Dublin. Try to compare the city of Dublin with the Province of Munster or the Province of Connacht and what is left to us of Ulster. There is no comparison.

And Belfast.

(Cavan-Monaghan): We are hard put to it when we have to seek precedents from that quarter because, in recent times, they have been forced to do things there which one would not think of doing in normal circumstances.

At any rate, Dublin is no comparison. In Dublin, the average man could not separate the constituencies. People living and voting in Dublin between one election and another could not define the nine constituencies the Minister tells us are in Dublin. Dublin is taken as a city and, to a lesser extent, a county, and the question of local interest does not arise to the same extent as it does in provincial and rural Ireland.

Therefore, I would not accept that as any argument in favour of the Minister's contention that the central count has worked well in the past and has no shortcomings so far as local interest, or transport, or security is concerned. Everybody knows there are a number of military barracks and a very large section of the Garda in Dublin. Everybody knows it is only a matter of a few miles from any given point in Dublin to another. I do not think anyone would expect me to spend much time in refuting the Minister's suggestion that the fact that the central count has worked reasonably well in Dublin is evidence that it will work equally well in provincial Ireland.

As I said time and again, the Minister concedes that both systems can work. He also went to Northern Ireland, to the referendum held there a few years ago, and pointed that out as an example of how the central count could work here. Presumably, if he gave it any thought at all, he meant to argue that, because there was no lack of interest in Northern Ireland in the referendum, there would be no lack of local interest throughout the Republic in the Assembly elections. Again there is no comparison whatever between a referendum where you are talking about an inanimate thing dealing with "yes" or "no" and dozens of candidates from various parts of Ireland. The Minister did not do his case any good by leaning on that example to show that the central system worked. Nobody could reasonably accept that, because something was done in Northern Ireland in the past seven or eight years, that is the proper thing to do. We have completely abnormal conditions in Northern Ireland. I suggest that what is done in Northern Ireland at present is the abnormal; practically everything done there from any angle of democracy is the abnormal rather than the normal thing at present.

I shall not drag out this debate unduly. The Minister has failed to answer the argument based on the human element, on local interest and on the element of interest necessary to get out the electorate. The fact that he has not dealt with that and that he gives the city of Dublin as an example of how the provinces of Connaught and Ulster and the large province of Munster will work, is, I think, going very far and shows how hard put the Minister is for an argument to refute the arguments put from this side of the House.

As regards transport of votes, I concede that every ballot paper will have to be transported from the various local counties to the central counting place somehow but it is one matter to transfer all the votes in seven or eight boxes and another to transfer the same votes in a couple of thousand boxes. Transferring thousands of boxes is a far more dangerous operation, far more vulnerable to accident, sabotage or attack.

The Minister did not deal with the question of recruiting staff into the proposed central counting centre. They will have to come from all over the place and without doubt they must have a dress rehearsal and a lecture on the way the particular returning officer works. That will cost money and cause inconvenience.

I do not necessarily take the Minister's points in the order in which he dealt with them but apparently he has decided that the count here will take place on a Thursday and the count in the remainder of the Community will not have been completed until Sunday night and the boxes therefore cannot be opened—I think the Minister said—until Monday. If that is so, I can see no reason for the election here not being held on a Saturday. There is a growing volume of opinion in favour of a weekend election and were it not for the religious and conscientious reservations of some people about violation of the Sabbath the vast majority would favour a Sunday election. If that is the climate here, why not have a Saturday election? Then there is no reason why the count could not proceed on a Monday as it would have to go on locally and no reason why the ballot boxes could not be at the central place to have the count continue on Tuesday morning. I cannot see why the Minister would not do that; it seems reasonable.

He has been arguing that if there were two elections on the one day the local politicians would not wait a minute longer than was necessary. I do not think that is so. If they realised that there was a real danger of getting a wrong result—as there would be through ballot papers finding their way into the wrong box—they would certainly wait the extra day or two.

We have a difference of opinion about the doubtful votes. My information is that each returning officer adjudicates personally on the doubtful votes. If that is so I concede that you would have an adjudication in each place but that would be according to criteria established in each place and probably would lead to consultation between various returning officers. But the point is that to go through thousands of doubtful papers in the same place would entail a lot of unnecessary delay.

The Minister asks who will resolve the discrepancy, if there is one, between the number of votes alleged to have been despatched from the local area and the number received in the central counting house. This has been dealt with in presidential election after presidential election and no difficulty has arisen. Presumably, the votes are counted at a local centre in the presence of the agents. The count is announced and agreed upon and a certificate is made out by the local returning officer and that is despatched to the central counting office and presumably if there is a discrepancy when it reaches there, there will be a recount. Recounts have resolved many things; they have ended up showing a difference and showing no difference.

The Minister made the point that if the surplus were taken from a particular county it might be unfair to one candidate or another. This is one of the inherent weaknesses in proportional representation, the only weakness of which I know, in that there is no certainty as to what bundle of votes will be taken from the candidate with the surplus and passed on. But the Minister knows as well as I do that there is a provision in the Schedule to the Bill and in the rules for all elections that the ballot papers must be mixed before the count begins. When the ballot papers are taken out of their boxes they are mixed, put into a huge cantainer and then find their way to pigeonholes. That is the theory and the practice of it. If there is any substance in the Minister's argument—I do not accept that there is—the same argument arises in each Dáil election as to where the surplus votes will come from. They might favour one candidate more than another. The answer is that the rules provide for mixing.

In regard to time the Minister seems to think that his method will be speedier than mine. I do not accept that. It would take far longer to transport votes in thousands of boxes to each centre than to transport a dozen boxes. Furthermore, a mixed staff from County Galway and County Cavan will not work as quickly as the staff of one county who are accustomed to working together and who would be doing the breakdown of the work in the first instance. One system will not be speedier than another to any great degree. This should not be a stop watch situation. The advantage in gaining a few metaphorical seconds by using one system will be lost by taking away from the local interest and departing from true democracy.

The Minister made the case that there is some difference between the presidential election and the Assembly elections. I cannot see any real difference. It is true that normally there are only two or three candidates in a presidential election and that is all the difference there is. The ballot boxes in each case have to be opened, the ballot papers have to be reconciled with the ballot paper accounts, the ballot papers have to be sorted under the names of the candidates and they have to be counted. If there are three candidates and nobody reaches the quota on the first count there has to be an elimination and a distribution of votes. In general practice there is no difference and I do not accept the Minister's argument as valid.

The Minister for some reason or another is in a hurry with this Bill. The Minister need not be in a hurry because we will not have European elections this year or next May. June or autumn, but they will be held the year after. That seems to be the news from across the water. I agree that if the Minister were to accept my amendment he could not just simply accept the amendment but would have to take the Bill away and throw the Schedule back to the parliamentary draftsman, his Department would have to work on it and there would be a good deal of inconvenience. It would not be a case of just rearranging the Schedule. I suggest that the whole Bill would have to be redrafted. The Minister would have to look at the Schedule to the presidential election and that Schedule would have to be modified to meet this case. All that inconvenience would be worth it because we would have a more efficient system at the end of it.

The Minister agreed that the two systems will work. I argued strongly that my system is the more efficient and the Minister believes that his is. To have the tried and proved system the Bill will have to be completely redrafted. Some people in the House believe that the Minister has a political feeling about this matter and thinks that his organisation is stronger and more able to get out voters and that any lack of local interest will favour his party more than other parties in the House. I have argued strongly and convincingly from the very beginning that we should have the local count up to and including the first count. With all due respect, the Minister's last contribution on this amendment was the weakest contribution he made yet. There was no human touch about it and it was devoid of any political approach except, perhaps, the one just mentioned which did not come very much to the surface. We are political beings here and we know that it is necessary to instil local interest to get the biggest possible vote. I concede to the Minister that the system I am advocating is a system which was prepared by his predecessor. That is no reason why, if there is a better system, we should not go for the better system. If it were a matter of arranging constituencies I could understand the Minister holding out so strongly, but this is a question of finding an efficient and acceptable system that will appeal to the people, that will work and that will not have any pitfalls in it. There are pitfalls in the Minister's proposal. There is lack of local interest and the system I am proposing has been tried and has proved acceptable.

Amendment put and declared negatived.

Amendments Nos. 20 and 21 not moved.

I move amendment No. 22:

In page 45, line 30, to delete ",85"

Rule 91 of the First Schedule sets out the maximum penalties for the various offences proposed to be created in this Bill. For convenience the rule divides the offences into two categories, the serious and the less serious offences. In the category of serious offences attracting heavier penalties are included offences such as double voting, personation, undue influence, breach of secrecy and so on. The rules treat three offences as relatively less serious. Those offences are, the omission of the name and address of the publisher and printer from posters, handbills and similar documents circulated at Assembly elections, the handling of ballot papers at the count by candidates or their agents and the unlawful marking of ballot papers by a companion. The last mentioned offence, the unlawful marking of ballot papers by a companion can arise in two ways. It arises if a person acts as companion for more than two incapacitated electors or if a candidate or agent acts as the companion of an incapacitated elector. On Committee Stage the view was expressed that this ought to be treated as a major offence carrying the same penalty as personation. I am not sure that this view would be generally acceptable. However, the rule specifies maximum penalties only and it would be a matter for the court within this limit to consider the appropriate penalty in each individual case. In these circumstances there is no practical objection to specifying the higher penalties in the case of this offence and amendment No. 22 provides accordingly.

(Cavan-Monaghan): In effect the Minister is transferring the offence involved in a companion behaving improperly or in a companion voter being guilty of an offence from Rule 91 (2) to Rule 91 (1).

Amendment agreed to.

(Cavan-Monaghan): I move amendment No. 23:

In page 45, line 44, to delete "£200" and to insert "£250".

I put down this amendment purely for the purpose of asking a question. I raised this matter on the last occasion when I told the Minister that I feared that the proposal in Rule 92 would not stand up in court on the grounds that it was asking a court in a criminal matter to adjudicate on civil damages. I said that I thought that a similar provision in the Road Traffic Act, 1961, had run into trouble or wassub judice at the moment. I admit that although I raised this point early enough I did not do any further research on it. I wonder whether the Minister has done any research and whether he is satisfied that this rule is constitutional and enforceable in the courts. If it is I have no further point to make on it. If it is not the Minister should rethink.

It is constitutional. Does the Deputy wish to hear about the case?

(Cavan-Monaghan): I would like to hear about the case.

In the High Court the case in question arose out of a prosecution under section 56 of the Road Traffic Act, 1961, for driving a car without insurance. Section 56 lays down that the penalty for the offence shall be a fine not exceeding £100 or imprisonment for a term not exceeding six months. Section 57 of the Road Traffic Act provides that if the uninsured driver causes injury to another person or to property the court in addition to imposing the appropriate penalty under section 56 may inflict on the convicted person a fine not exceeding the damages which in the opinion of the court the injured party would be entitled to recover in a civil action.

In a judgment delivered on 7th July, 1977, Mr. Justice Hamilton indicated that section 57 of the Act purported to increase the penalty which the court could inflict to such an extent as would in his opinion not permit an offence under section 56 of the Road Traffic Act, 1961, to be regarded as a minor offence properly triable by the District Justice. The nub of the matter of the road traffic case, there-fore, was the size of the total penalty which the court could impose.

Under Rule 92 of this Bill the amount which the court may require the personation agent to pay is £200 and this sum is well within the ordinary limits applicable to the District Court. In any event, under this Bill personation and double voting are offences which may be prosecuted summarily in the District Court or on indictment in the Circuit Court. The financial limits of the jurisdiction of the Circuit Court are, of course, much higher than in the case of the District Court and the damages provided for in Rule 92 may be awarded only at the request of the person against whom the charge of personation or double voting was made. There is nothing in the rule to prevent a person charged from seeking remedies under the ordinary law in respect of wrongful arrest, false prosecution and so on. Rule 92 merely provides a convenient method under which if he wishes he may recover limited damages without the necessity of taking separate civil action.

The amendment proposes to increase the maximum amount which may be granted by way of damages from £200 to £250. There is no objection to this because what is being laid down is the maximum. It would be up to the court to fix the exact amount in each individual case and it is understood that the significance of the figure of £250 is that this represents the limit of the jurisdiction of the District Court in a civil case.

(Cavan-Monaghan): Is the Minister accepting the amendment?

(Cavan-Monaghan): Did the Minister say that in the Road Traffic Act the ceiling of the damages was £1,000 in the road traffic case that he read out?

There was no ceiling.

(Cavan-Monaghan): That would make all the difference. The Minister has clarified the position for me and I am obliged to him. It is better to have £250, which is the ceiling of the District Court jurisdiction in civil matters.

Amendment agreed to.

(Cavan-Monaghan): I move amendment No. 24:

In page 46, line 43, after "officer" to add "and local returning officers".

Rule 98 deals with a petition to the High Court, arising out of an election, to have the election declared null and void or to attack the election in some way. The petition, of course, sets out the grounds on which the petitioner is moving and the petitioner may be the Director of Public Prosecutions or he may not.

Rule 98 (4) provides:

(4) Where a petition has been lodged with the court, as soon as may be the petitioner shall give a copy of the petition—

(a) to any person to whose election the petition relates,

(b) to the Minister,

(c) to the chief returning officer,

(d) to the returning officer for the constituency to which the petition relates, and

(e) except in the case of a petition presented by the Director of Public Prosecutions, to the Director of Public Prosecutions.

It will be noted that while there is provision in Rule 98 (4) for serving on or furnishing to the chief returning officer and the returning officer for the constituency concerned a copy of the petition, there is no provision for serving of the petition on the local returning officer. It is almost certain, or at any rate quite likely, that at least one local returning officer would be involved in any petition. It is probable that the petitioner would be alleging that the local returning officer failed to do something in accordance with the Act or in accordance with the rules in connection with the Assembly election, that he was guilty of malpractice, or that something went wrong for which he was liable. It is only reasonable that the petition should be served also on the local returning officer. In effect, that is the substance of my amendment. I propose to add, in line 43, after "to the returning officer for the constituency to which the petition relates and" the words "the local returning officers for the constituency". It could be drafted a little bit better than that, but I think it is quite clear what I have in mind.

That is essential. If the Minister were to say to me that it would not be necessary to serve a copy of the petition on each of the 11 local returning officers in Leinster, I would say that each of them should be served with a copy, that it would be safer to so do. If the Minister were to say to me that perhaps only one of the local returning officers would be involved, then I would settle for serving it on any returning officer against whom any allegation was made. But the safer thing would be to serve it on all local returning officers and I should like to hear the Minister's views on that.

First of all, there are very definite reasons why the people named—the Minister, the Director of Public Prosecutions, the chief returning officer and the returning officer for the constituency concerned—should get them. For instance, the Minister requires official notification because if the election is upset it will be his duty to set a date for a fresh election. The Director of Public Prosecutions must be informed, so that he may make inquiries or institute prosecution for alleged offences or irregularities. The chief returning officer must be informed because, if the petition is successful, he may be required to amend or withdraw the return furnished to the European Assembly. The constituency returning officer requires notification because he has declared certain persons elected and given a return of the persons so declared elected. The court may direct him to amend or cancel the declaration and the return he has made, or may direct him to carry out a fresh count of any or all of the votes cast at the election.

No matter what the nature of the petition or the grounds on which it is based, all the people listed in Rule 98 (4) have a direct involvement. For this reason the rule places a specific obligation on the petitioner to send a copy of the petition to each of them.

The amendment would impose a requirement on the petitioner to send a copy to every local returning officer in the particular constituency and there will be several local returning officers for each Assembly constituency and 11 in one case, that being in Leinster. If the petition is based on the action or omission of any of these, he will be named in the petition and a copy will be served on him in the normal course. If a local returning officer is in a position to give material evidence or assistance he may be summoned by the court, under Rule 101 (2) (d), or by any party to the petition. Thus, if he has a direct involvement, either as respondent or as a witness, there is the necessary machinery in existence for notifying him. If on the other hand he has no direct involvement it would be unjust as well as pointless to burden the petitioner in question with the obligation of sending him a copy. The difference between the local returning officer and the persons listed in Rule 98 (4) is that they have a necessary involvement in every election petition while he has not, but the machinery is there if the local officer is named in the petition.

(Cavan-Monaghan): I do not propose to drag out this argument but I am really surprised at the Minister's attitude. I admit he is a layman and I have practised as a solicitor for some time. I cannot see how or why the Minister is not prepared to make it obligatory on a petitioner to serve a local returning officer if he is involved in some error, is guilty of having made some mistake or of some malpractice. It is elementary justice that, if a person is named, he should get a copy of the document.

I could foresee a situation in which the only person at fault would be the chief returning officer; he could have done something, or indeed the Minister could have done something because he might not have made the order properly. The only person who could really be guilty could be the Minister if he had failed to discharge his statutory function in connection with the elections. Yet the rule provides that the chief returning officer and the constituency returning officers must be served in any case even when only the Minister is to blame.

I can also see a case in which the Minister might be blameless but in which only the chief returning officer might have done something wrong in carrying out his duties. Yet the constituency returning officer and the Minister are to be served. If there is a fault somewhere and statutory rules and regulations have not been carried out, a new election would be necessary. That is why it has to be served on the constituency returning officer, because he would have something to do. Of course, so would the local returning officer; he would have a lot of things to do also if there were to be a new election. For the life of me I cannot see why he is not being served. As a matter of fact the case made by the Minister would seem to me to strengthen my case for saying that they all should be served. If there is to be a new election, then they are all in it—the local man, the constituency man, the chief and the Minister.

I would ask the Minister to have another think about this one.

Is the amendment withdrawn?

(Cavan-Monaghan): Yes.

Amendment, by leave, withdrawn.
Bill, as amended, received for final consideration.

When is it proposed to take the Fifth Stage?

(Cavan-Monaghan): Agreed.

Agreed to take Fifth Stage today.