Dáil Éireann debate -
Thursday, 29 Apr 1982

Vol. 333 No. 9

Statements on Electoral Law.

The Taoiseach

The House will be aware that in a recent case in the District Court two persons were charged with personation. It was alleged that they voted in their own names at two separate polling stations. Apparently, their names were entered twice in the register of electors. Section 3 of the Prevention of Electoral Abuses Act, 1923 provides that:

Every person who at an election applies for a ballot paper in the name of some other person, whether that name be the name of a living person or of a dead person or of a fictitious person, or who having voted once at an election applies at the same election for a ballot paper in his own name, shall be guilty of the offence of personation.

The district justice dismissed the case. According to press reports the justice found that the prosecution had not proved that an offence had taken place and that, in his opinion, it cannot be proved conclusively that a person has actually voted because the ballot paper used by an individual elector cannot be positively identified. Reference was made to the McMahon case on the secrecy of the ballot. Prior to that case the elector's registration number was written on the counterfoil of his ballot paper and this provided a link by which the ballot paper used by an individual elector could, in theory at least, be traced. This practice of writing the elector's number on the counterfoil was found to be unconstitutional and the practice was written out of the law by the Electoral Act, 1972.

I think it is necessary to understand that what we are dealing with is a decision of an individual justice of the District Court on particular cases. As the House is aware, a decision of a district justice in one particular case is not binding on any other district justice in dealing with a similar case.

I think it appropriate also to place on record that there is a legal procedure whereby a decision of a District Court may be brought under review by a higher court. I am advised that it is open to the Director of Public Prosecutions to apply to have a case stated for a direction on the point of law involved. The question of whether to take such action is entirely within the discretion of the director. The House will be aware that the director is an independent statutory authority and in the discharge of his functions he is not subject to direction by any Minister or by the Government. I have no knowledge of what way the director's intentions in relation to the present case may be. I would emphasise that, in accordance with statute, the matter is one entirely within the discretion of the Director of Public Prosecutions.

That much said, I would acknowledge that the publicity attendant on this case may have given rise to some misgivings about the adequacy of existing electoral law to deal with a particular type of electoral offence. It seems to me that it may now be opportune to clarify the provisions of section 3 of the Prevention of Electoral Abuses Act, 1923, which I have already quoted.

It is desirable on a matter of such fundamental importance for our electoral system that there should be agreement among the parties on what is necessary. If there is such agreement the Government are prepared at a very early date to introduce amending legislation to clarify the particular provision involved, and make good any defects which may be considered to arise in regard to the section 3 of the 1923 Act.

By agreement this legislation could be enacted within a very short time, indeed, within the next few weeks. I am advised that the introduction of such legislation would not in any way inhibit any action which the Director of Public Prosecutions may be contemplating.

Dr. FitzGerald

This debate is taking place because, on behalf of the Opposition, I persisted yesterday, within the rules of order, in seeking to establish, by points of order, that the matter we wished to raise is one of urgent public importance, involving as it does the question of whether the forthcoming by-election in Dublin West can be held in circumstances that will offer a prospect of a result actually reflecting the wishes of the people. The Taoiseach's statement this morning, which I welcome, vindicates the decision he made yesterday to endeavour, within the rules of order, to find means by which this House could properly discuss the matter.

I have no wish to spend time this morning in restating yesterday's arguments. I will content myself by saying that an application of the rules of order that would have prevented us from securing from the Taoiseach a statement of his intentions on this matter, in advance of the time when the writ for this by-election would normally have been moved, would have been damaging to democracy. I believe that, given the decision to transfer questions on this matter from the Taoiseach to the Minister for Justice, which had the effect of moving them down the Order Paper to a position where they could not be taken as oral questions with supplementaries until many weeks had passed, because of this the matter became one of urgent public importance, appropriate for a Private Notice Question. Secondly, I believe that it would not merely have been within the rules of order, but in accordance with precedents set by the present Ceann Comhairle as well as his predecessors, to have allowed the matter to be raised on the Order of Business.

Research by one of my colleagues in the brief period of our discussions here last night has revealed at least 15 cases where the present Ceann Comhairle allowed matters to be raised with me as Taoiseach, or Deputy O'Leary as Tánaiste, in most instances raised by the present Taoiseach, between July and December last — matters which were not on the Order Paper and which, in many cases, related to precisely the kind of issue we were seeking to raise on the Order of Business yesterday, namely, queries as to what action the Government intended to take on matters not then on the Order Paper. In scarcely any case did the present Ceann Comhairle intervene with any reference to this procedure being out of order, and in none of these cases did he proceed with this objection, but permitted the exchanges to continue until the matter in question had been fully probed. In one instance, indeed, he did restrain the questioner — the present Minister for Health and Social Welfare — from continuing, but only, in his own words, so as to give me the chance to reply to him.

The simple fact of the matter is that this interpretation of the rules of order was not enforced when we were in government because we were willing to answer queries put to us on the Order of Business and did not sit mute, seeking to avoid our responsibilities by hoping that the Chair would protect our silence as has occurred on a number of occasions since this Dáil resumed.

I shall be submitting to the Ceann Comhairle these cases, which I shall also make available to the Press, and shall be asking the Ceann Comhairle to review his ruling in the light of his own practice during the second half of last year which, as can also be demonstrated, was in line with past practice as long as the memory of Members of this House takes us back.

Turning to the issue in this debate, it concerns the matter of illegal voting, designed to falsify the results of an election and to secure the return, by a constituency, of a Deputy of a party whom the electorate of that constituency wish to reject, and ultimately to give the country a Government other than that which the people of the country wish to choose. This has rightly been seen as a serious crime and one deserving of a gaol sentence. It is a practice which has never completely disappeared in this country, and its continuance has necessitated, on the part of my party and the Labour Party, a continuing massive effort at elections to check the register and to challenge suspect voters at the polls.

It is, however, fair to say that the evidence has been of a decline in this practice during the seventies. In my own constituency it had been a problem, particularly at one polling station, prior to 1969, but between that year and 1977 there was little or no evidence of attempts by people to vote illegally — save in the local elections of 1974, when several cases were detected and reported to the police, not involving any of the major political parties.

In the June election of last year, however, it came to our attention in my constituency, and I believe in others throughout the country, that illegal voting was being attempted again, and successfully, on a significant scale. This was evident, both from a number of cases where attempted personation was detected and those challenged fled, and also from the pattern of results at certain tables, which showed distinct departures from normal voting patterns, due account being taken of the general swing in voting which was occurring.

This matter was serious enough for both my organisation and my constituency formally to notify the City Sheriff of the apparent recrudescence of this practice and to ask him to instruct his staff to be especially vigilant in the February elections and for us in our party to have printed, at our own expense, notices to hang outside polling stations, warning against illegal voting — something, indeed, which the Sheriff and the County Registrar might themselves usefully do. Despite this, at several polling stations in my constituency personation occurred, with voters arriving only to find that their votes had already been taken by someone else — as, I myself observed in Rathgar Avenue polling station. I shall not speculate as to why personation should have become more rife in these two elections, after a period when it had seemed to become fairly rare. Members and the public will have to make up their own minds about that.

The new situation alerted our organisation, in other constituencies as well as my own, to the danger that the election results could be falsified and the country endowed with a government that the electorate did not wish to see in power, unless we were especially vigilant. This was true of our organisation in Dublin North — a very marginal constituency, the most marginal in the country, indeed. The organisation there, as elsewhere, were alert both to the danger of personation — people voting on behalf of others, by seeking a vote in their name early in the day before they would be likely to go to the polls themselves, or in the name of persons absent or dead — and to the danger of double voting by people whose names appeared more than once on the register.

The latter may not appear to be likely to be a serious problem and many people may assume that it could not or would not be. However, the simple fact is that, because of the extraordinarily defective state of the electoral register, many people entitled to vote — sometimes whole roads or blocks of flats — are excluded, while many other people are registered twice. I can testify to the commonness of the latter phenomenon, because I and others registered at my address were, in fact, doubly registered in the 1981-1982 register, for both these elections and I found it necessary, when voting at the opening of the poll, to draw the attention of the presiding officer and polling clerk to this fact, lest anyone attempt to vote in the name of people registered in my house, using the second entry in the register.

Given the frequency of double registration on grossly defective registers the opportunity exists, not alone for personation but for double voting. Double voting is covered by the relevant section of the 1923 Act, a section which, contrary to one press report, was not repealed by the 1963 Act. It only repealed certain sections of the 1923 Act.

This section of the Act makes it an offence for someone having voted once in his or her own name to ask for a ballot paper on a second occasion. It is with this offence that Mr. O'Connor and members of his family were charged. The evidence as to fact was conclusive, given by a presiding officer, poll clerks and Fine Gael personation agents in the two polling stations in respect of which Mr. O'Connor and his family had been irregularly registered. One presiding officer chose to change his evidence given to the police and had to be treated as a hostile witness, but the chain of evidence was completed without the evidence of this gentleman.

The district justice stated that he had studied the law carefully but, as had been pointed out in well researched newspaper articles, he got his facts completely wrong, alleging for example, that Ms. Mairín de Burca had taken a case about the numbering of ballot papers when, in fact, she had nothing to do with that case. He chose to hold, contrary to all previous decision—and to a subsequent decision where the person concerned was less prominent than Mr. O'Connor and was given a prison sentence now being appealed—that the fact that Mr. O'Connor had gone to a polling station, sought a ballot paper, gone to a booth and returned and cast his vote in the ballot box did not prove that he had voted and that, therefore, it could not be shown that his second request for a ballot paper at another polling station where his name was on the register occurred after he had already voted. The decision was as perverse and nonsensical as the district justice's facts were wrong. It would make the relevant section of a sixty-year-old Act inoperative and would, if allowed to stand, impugn all previous convictions for double voting. It has been universally condemned by lawyers as undermining the law and the electoral system.

As the Taoiseach has said, this decision, taken in conjunction with the subsequent contrary decision in another case, is presumably being considered by the Director of Public Prosecutions, with a view to stating a case to a higher court, so that the judgment in this case, which would, if allowed to stand, destroy completely the efficacy of the law against double voting, can be reviewed and, I believe, set aside. This would protect our democratic system against a danger not hitherto suspected to exist and ensure that justice is done and seen to be done on a fair and equitable basis, as between those coming before the courts, regardless of their position in life.

But such a reference, which can be made within 14 days of a case being heard, would itself, if undertaken, not come to court for some time and the law would in the meantime remain in doubt and would encourage people twice registered in the constituency of Dublin West, of whom I am sure there are many, on the basis of the type of register to which we have been accustomed, to emulate Mr. O'Connor in the knowledge they would have as their defence if apprehended the existence on the record of a court decision that they had committed no offence by acting in the same manner as the election agent of a candidate had done.

The existence of this possibility for the distortion of the election result in Dublin West is such as to require immediate legislative remedy. Such a remedy is easily available: it involves only changing the wording of the section to make the offence one of having asked for a ballot paper, having already asked for and received a ballot paper in another instance which is, I believe, the law in Britain. What we seek is such a change in the law. I am glad the Taoiseach concurs with our view and I am sure we will have no difficulty in agreeing between parties as to the exact nature of the amendment required and passing it through both Houses of the Oireachtas rapidly so that it will be the law, signed by the President and in operation before the election takes place in Dublin West.

I should perhaps add that such legislative amendment would not, of course, in any way prejudice the process of reference of the existing legislation by way of case stated to a higher court, which we would expect that the Director of Public Prosecutions would proceed with in any event, as necessary to clarify and uphold the validity of past convictions, and indeed of one subsequent conviction, and to provide a clear basis for a decision in other cases that we understand may be pending arising from the last election with its unusual incidence of personation.

However that may be, I am glad that the Government intend to introduce at once, in agreement with all parties, legislation which will once and for all put beyond doubt the law on double voting, so that the moving of the writ for the Dublin West by-election may proceed with the sure knowledge that the democratic process in that election will be adequately protected.

Mr. M. O'Leary

The urgency in this matter is because of the pending by-election. It cannot be denied that there is doubt as to the law governing our voting procedures in the State. It cannot be denied that there is no longer effective protection against double voting. Therefore, the efficacy of our legal system governing the conduct of elections is open to query. I believe the Oireachtas should not remain powerless in this situation and there are two methods of dealing with it. The Taoiseach said in his contribution here that either Director of Public Prosecutions seeks by way of case stated to the High Court clarification of the law after the ruling of the district justice in the case of the DPP versus O'Connor, or the Oireachtas itself amends the existing legislation. In the case of the route open to the DPP, should the DPP be dissatisfied with the High Court ruling it would be open to him in turn to proceed to the Supreme Court. It is clear from the Summary Jurisdiction Act, 1857, as amended by the 1861 Supplementary Provisions Act, that any party dissatisfied with the decision of a district justice as being erroneous on a point of law can apply within 14 days to the district justice to state and sign a case stated and sign a case setting forth the facts on the grounds of such determination for the opinion of the High Court. However, to proceed by way of case stated to the High Court and possibly to the Supreme Court, the aggrieved party here being the DPP, it is clear there would have to be adequate preparation of the necessary documentation. That would take time and there would also be a necessary period occupied in arranging for court hearings. It means, therefore, that the pursuit of clarification of the present law through the courts would necessarily be a long drawn out process. It certainly would not be a process which would be ended in time for what we understand to be the date of a pending by-election.

Perhaps the courts would say the present law remained intact: irrespective of that, court clarification would simply relate to the present case of the DPP versus O'Connor. The time within which there could be such clarification would mean that if the by-election was proceeded with the law would be in doubt. It is clearly, therefore, beyond the bounds of possibility that a further judgment of any court would be made in time.

Reference was made by Deputy Spring yesterday to a Limerick case referring to the same matter in which a prison sentence was imposed but in that case a point could be made that the efficacy of the present law was not tested since the defendant admitted he had voted twice. The conclusion is inevitable, that the processing of this matter through our courts could not re-establish the law in time for the pending by-election. The Oireachtas in a sense is not concerned with any possible final determination of the courts on the case of the DPP versus O'Connor but the Oireachtas must be concerned with the outcome of that case without prejudice to any further consideration of that particular case by the courts. The Oireachtas must, without delay, address itself to the amendment of the existing law governing electoral practice so that there is no doubt concerning the status of the law in the matter, either for the forthcoming by-election or any future election. All that is required is a simple amendment to the Electoral Act which would govern electoral practices in the future.

I would recommend an amendment along the lines of the British Representation of the People Act, 1947, section 47, which appears to place greater emphasis on the application for a ballot paper as a prerequisite of the offence as distinct from the actuality of having voted. It appears in the case of the DPP versus O'Connor that the district justice considered that the actuality of voting in itself made impossible the proving of intent. If that is the case, as the Taoiseach said this morning, we should proceed rapidly towards amending legislation. This legislation would not require much drafting; it can be done either by addition to or amendment of the present Act. If the difficulty appears to be along the lines of intent as against the actuality, in law the mens rea as against the actus reus, it would seem we should follow the British Act and make it clear that the application for the voting paper in itself is a prerequisite of the offence. That would either mean a new, brief electoral Act or an amendment. All that is required on the part of the Taoiseach is a readiness to give some time of the House to it and that time could be set aside early next week to do it and then we can proceed to the by-election without any worry about the status of the law. It is necessary because counsel for the defence in the case of the DPP versus O'Connor made the point that even if you could prove that a ballot paper had been marked and put in the box, you could still not prove that voting had occurred.

That is the kind of confusion that exists at present and that confusion must be resolved immediately, certainly before the by-election, because reference was made to the fact that there is a great deal of carelessness in the drawing up of the registers. The leader of the Fine Gael Party referred to the doubling of names on the register. To what extent double voting and personation is a laudable hobby in Irish elections is open to conjecture. In the recent election one of my supporters told me that a supporter of an opponent had told him in a boastful fashion that he had voted 50 times that day for a particular candidate. That may be an exceptional instance but we could not prove it because we lack the organisation to have agents within polling booths. I do not know to what extent this is permitted and tolerable, a joke in which the test seems to be how many votes can be accumulated in an election. Our laws must be amended to stamp this out.

While we are clearing up the Act in relation to electoral practices, perhaps we should also clear up the question of a mandatory sentence relating to the offence. If we clear up the constituent nature of the offence itself, what constitutes the offence, we should also clear up the penalty that attaches to the offence because there is a doubt about it.

There is a case from Mayo wending its way through the courts at present as a result of the June 1981 election. The question has been raised is there discretion for the judge to decide on a prison sentence or is the discretion merely one of two or four months? This is a matter that could be quickly cleared up. It should be made clear that a mandatory sentence follows on the offence in the Act and that there is no discretion allowed to the district justice in this matter.

I suggest that the confidence of the public in our electoral laws must be unshakable. It is important that that confidence should be restored and it is evident therefore that the Act needs amendment if the public are to have full confidence that the Act governing these matters would provide for mandatory sentences. That should be clearly and unambiguously set down in the Act so that the public will have full confidence in the efficacy of the law governing electoral procedures.

Apart from the Act itself, surely it is about time for us to adopt a more scientific and reliable method of filling out the electoral register. The idea of an official of a local authority arriving at one's door and asking at different times of the year "How many people in the house?" and to be told "six", or "12", "This person exists", "That person does not exist" is ludicrous and it is ludicrous that the electoral register is formed on that basis. Surely we can get a more reliable counting method of the number of people entitled to vote. That is not an immediate matter but it is one we should address ourselves to.

Putting it mildly, we have many problems throughout the country. We have massive unemployment, we have not any growth. In these circumstances many people are looking at this Parliament and asking: "What are they doing above there?" To what extent is this Parliament relevant to the numbers of people unemployed, to the other huge problems we are facing? I do not discount the importance of the matters dealt with here yesterday — they were very important matters — and therefore I cannot see why legitimate questions of importance raised by Opposition speakers could not have been given a satisfactory response. Instead, an entire day was spent in procedural wrangling — an important matter, but procedural wrangling. This House was caught in that paralysis for most of yesterday. The responsibility for that must rest inescapably on the Government side.

The Taoiseach

Certainly not.

Mr. M. O'Leary

The Government party have a majority in this House. If we were on that side it would be our responsibility. However, in relation to all of us the problems we discussed yesterday were important procedural matters, but outside in the country people are daily becoming more sceptical of the whole point and function of this Parliament, and we here must not give further fuel to the scepticism relating to the whole point of this Parliament.

Mr. P. Barry

Hear, hear.

Mr. M. O'Leary

I speak of the Government in particular. They have been given the mandate to deal with the economy. That is the most important matter before Parliament, so let us not have a situation which would hinder us in that work, that would get us caught up in complicated procedural wrangling for a whole day.

Mr. Sherlock

I will make only a few points to show why a number of changes are desirable. My first point is the difficulty encountered when we try to raise important matters like this. I will refer to an occasion recently when I tried to raise the vitally important matter of exporting live cattle. That was a matter of considerable national importance and I should have been given an opportunity to raise it. What we are discussing now is another one, and there are several others. When it has been clearly established that the problem is one of national importance, time should be allowed to debate it. Nobody came to my rescue at that time or said anything at all on that occasion.

In connection with the matter now before the Dáil, I am clearly aware of the need for legislation to prevent abuses and to lay down penalties to prevent such abuses. I have had much experience of such abuses, but following the last election I had to make representations to the Southern Health Board to carry out an investigation of the manner in which long-stay patients in an institution, some of them having been there for 20 years or more, were still registered in their native parishes. On the occasion of the last election I know of two instances of patients on the register who were supposed to have voted but in fact had never left the institution.

That will give an idea of how widespread abuses of the system are. I hope this debate will have an impact outside so that people will become aware of the seriousness of this. As Deputy O'Leary has said, the system whereby a franchise officer from the local authority receives applications for transfers or for inclusion in the register is totally haphazard. Indeed I would say it is the kernel of the problem. If, as in the case before us, a person was included in two registers, obviously the person or persons responsible did not have proper knowledge. There is not any doubt that people are registered in more than one area.

I suggest that it is on that problem that the start must be made. Local authorities will have to be given proper staffs so that they will not have to depend on franchise officers or junior staff members. Each local authority should have a staff whose specific task it is to compile registers. At present there is not a proper checking method to ensure that the register has been properly compiled.

We would welcome legislation which would eradicate the possibility of so many different interpretations, which resulted in a man getting two months in jail in one area and in another area it was decided that the case had not been proved positively. I hope this debate will have the effect of making people more aware of the problem. I hope we will have early legislation which will lay down the law clearly so that it will be clearly understood by everybody and so that this abuse which has been widespread for years will be eliminated.

Minister for the Environment (Mr. Raphael Burke)

In his statement the Taoiseach dealt fully with the main questions involved in this matter, but there are a few aspects I should like to touch on briefly. First, there is the proposal for a new legislation. The precise content of it, of course, will be a matter for the legal advisers and the parliamentary draftsman. I understand that already they have commenced their examination of the matter. As a layman, I can see the Bill as a short and simple document which basically would clarify the situation and make clear what was the original intention of legislators when framing the statute.

As explained by the Taoiseach, the main provision is section 3 of the Prevention of Electoral Abuses Act, 1923. I have heard the views of Deputies on how the problem should be approached. The House will find me very receptive to suggestions in this regard; Deputies may be assured that very full and careful consideration will be given to all such suggestions. Above all, the objective will be to ensure that such defects as exist will be made good and that any misgivings that may exist in relation to the adequacy of the law will be set at rest. It is important too that the traditional method of dealing with the mechanics of the electoral law in this House on the basis of consultation and agreement between the parties should continue.

There is, of course, another aspect to this matter which must not be lost sight of — it has been mentioned here this morning — that is, how it comes about that a number of people are registered more than once on the same register of electors. Unfortunately the present example is not an isolated incident and this has been proven by the contributions here this morning. Reports reaching my Department in relation to the last two general elections have shown that in many areas there were serious deficiencies, errors and omissions in the register.

I have decided to establish a working party to carry out a thorough-going examination of the whole registration process and come up with positive recommendations designed to effect a real improvement in the standard of the register. I will be asking them also to examine certain other aspects of the electoral process — for example, to recommend a sensible postal voting system for the disabled and other categories that may have need of it. My intention is that the working party will include representatives of the returning officers, of the local authority officials who at the moment compile the register, as well as officials of my Department. They will commence work as soon as possible and I expect them to go about this task with a real sense of urgency. By that I mean that I will expect recommendations from them within three months on the matters raised.

Mr. Fitzpatrick

(Cavan-Monaghan): The case which gave rise to the discussion taking place here today attracted national attention from the very day of the election until the day of the trial in the District Court. A great many people were shocked to find that the learned district justice dismissed the prosecution against Mr. O'Connor. It was very proper therefore that the deputy leader of Fine Gael and the leader of Fine Gael, within the rules of order, should have raised this matter yesterday and persisted in spending a great deal of time on it, highlighting it to such an extent that, with all respect, the Taoiseach had no alternative but to agree to give time here today for this discussion.

I am very glad to hear from the Taoiseach that he proposes to arrange to put through such legislation as may be necessary to amend the law to put it beyond all doubt. It is of course necessary that any such amendment as may be necessary should be made immediately and that it should go through both Houses of the Oireachtas and be signed by the President and be law before the by-election in Dublin West is held. We will of course facilitate the passing of such legislation. It is admitted that there could be a repetition of this and if the law is defective it should be made good.

But I do not think that it should end there. I believe that the learned district justice erred in law when hearing this case and that should be put right. As has been stated here today, the district justice stated in court that because of the heavy penalties provided by statute in such a case he had gone into the law carefully. The average ordinary layman could be forgiven for thinking that the district justice looked at the law before going into court to see if there was any possible way out of convicting in this case. If he did that it is a pity and he was wrong. The Director of Public Prosecutions, who is an independent officer, should ask the learned district justice to state a case for the opinion of the High Court as to whether the district justice acted in accordance with law in hearing this case, and if he did not act in accordance with law the case should be sent back to him by the High Court with a direction to adjudicate on it in accordance with law.

The district justice in this case dismissed it because he held that there was no evidence that Mr. O'Connor had voted in Malahide polling station. Let us see briefly what happened there. According to the evidence, Mr. O'Connor went into Malahide polling station; he asked for a ballot paper in his name. The evidence is that he got a ballot paper in response to that request. He then went into the voting compartment. He spent some time there. He came out of the voting compartment. He went to the ballot box and he put the ballot paper, or what appeared to be a ballot paper, into the box. If that is not prima facie evidence that he voted, I do not know what is. That evidence establishes the strongest prima facie case against Mr. O'Connor that could possibly be established by any evidence. It certainly establishes a case to be met. It certainly shifted the onus of proof on to Mr. O'Connor to prove that he did not vote. Of course, if Mr. O'Connor could say that he went into the polling station and asked for a ballot paper in his name, got the ballot paper and went into the voting compartment but, having thought it over for a moment, had decided that he would rather vote in Kinsealy, of all places, than in Malahide and that he had then put an unmarked ballot paper into the ballot box, there might be some grounds for saying that the district justice was right. But how the learned district justice could hold that there was not a prima facie case against Mr. O'Connor I do not know.

It is unfortunate that we have to bring this matter up in the House and that we have to talk about the duties of the Director of Public Prosecutions because I am sure that that learned gentleman will act in accordance with the law as he thinks fit and proper. But I believe that he should send this case to the High Court and, as I understand the law, if the High Court believe that the district justice erred in law it has power to send the case back to the district justice with a direction that he hear the case in accordance with law and adjudicate on it.

There is not very much more I want to say. It happens that the register is not properly made up and it happens that people are left off who should be on and that people are on who should not be on. But I do not want to muddy the argument that I am making. I am making two net points. The first is that we should amend the law to put it beyond doubt, but amend it in such time that the law is effectively changed before the West Dublin by-election. But, more important, we should have whatever happened here clarified because, unless this case goes to the High Court, the confidence of the people of this country in the courts of this country will be shaken and that would be a bad day for the administration of justice; it would be a bad day for law and order; it would be a bad day for democracy. In view of all the publicity this case has got it is imperative that it be clarified. It is no wonder that it got publicity having regard to the fact that Mr. O'Connor was who he was. If he was not an election agent for the Taoiseach, as he was, the fact that he is a solicitor and an officer of the courts would be sufficient to attract nationwide publicity. I should like to make these two points: amend the law and send the case to the High Court. Do that much to restore public confidence which has been so badly shaken.

Mr. Spring

I welcome the clarity we have been given concerning the proceedings of yesterday. What seemed impossible to discuss in a clear and logical manner yesterday has come to pass this morning. Possibly the grey cold dawn of a new day made it simpler. As a younger Member of the House I was astounded at the curtailment of discussion on this item yesterday, an item of great importance in relation to the election system and democracy and the institution of justice.

We are dealing with a specific instance in this discussion but we are all aware that we are discussing and revealing what is the tip of the iceberg. We must not for a moment fail to appreciate the seriousness of the abuses which have been highlighted in the course of this discussion. If we have any commitment to democracy and the workings of it, it must come from the House that we are standing by the effective administration of justice which will curb any electoral abuses such as those we have under discussion.

Instances have been given by those who spoke of abuses in their own constituencies. There is probably not one Member in the House who, in his own career or in days gone by, could not refer to such instances. As my party leader said, there is a dubious honour attached to the man who claims he voted 50 times or who is caught with 40 polling cards in his pocket, as happened in my constituency. My local justice referred to young people given these polling cards by a person who is involved in politics as lambs being led to the slaughter. Those involved in politics and in seeking office must be seen to treat this matter with disdain and be seriously interested in stamping out electroal abuses.

We all realise that the procedures and practice in relation to the compilation of the register and polling cards leave a lot to be desired. I ask the Minister for the Environment, when reviewing the Act, to look at the question of the distribution of polling cards, which have no legal standing in their own right, in urban areas in particular. We all know the situation in areas where there are many flats and apartments. People tend to move around a lot. Polling cards are put into letter boxes and left lying on the hallways of flats. They are a temptation to people to use them at a future date. Some form of registration is necessary if we are to make a serious attempt to curb electoral abuses. There may be necessity — I ask the Minister to consider this—for people to produce some form of identification at polling stations, be it a driving licence or whatever. That may go a long way towards stamping out abuse.

The question of people being issued with polling cards in various areas can only be stamped out by the effective compilation of the register, which should be better scrutinised than the haphazard way it is done at present. That is no reflection on the people who are attemptting to do it at present. However, the system has outgrown itself and they are not capable of compling the register in as rigid a manner as it should be complied.

I welcome the Taoiseach's statement and the manner in which he met the request for the suspension of Standing Orders and also the acknowledgement of the independence of the office of the Director of Public Prosecutions. The seriousness of the case under discussion must not be underestimated. If this was a minor incident in any other constituency it would still deserve the same clarification both in this House and in the courts.

It is particularly important to the layman that this case is seen to have the full effect of the law. We must not be seen as attempting not to give this matter a full airing in our courts. There is a procedure open to the DPP and without attempting to undermine the independence of that office as spokesman for justice on behalf of the Labour Party I urge that this matter be dealt with in the High Court. It is necessary that this be done, considering the inconsistency of judgments delivered relating to similar cases. I urge that this matter be dealt with in a higher court. It is the system provided for in our law and I hope it will be availed of.

Mr. Kemmy

My knowledge of this case is confined to what I have read in the public print. I took time to study the evidence very carefully as a student of politics and as a practising politician. I studied the verdict given by the district justice in the O'Connor case. I can say without any hesitation that I have been dismayed and alarmed at the verdict given. It appeared to me that the justice concerned went to extraordinarily great lengths to reach that verdict.

I read the evidence and there was no doubt in my mind as to the outcome of the case, but the justice turned the law on its head to search for every loophole possible to let Mr. O'Connor off. The whole case in my book was designed to find some loophole to let Mr. O'Connor off. That is what happened. However, one cannot carry out a travesty of justice regardless of the people outside the courts or this House. The people have intelligence and commonsense and this verdict by the justice concerned was an affront to commonsense and intelligence. It was a legal scandal that will go down in the statute books when people examine and weigh carefully the verdict of the justice concerned.

There was great disparity and discrepancy in this decision because I read in last Friday's Limerick Leader of a man being jailed in County Tipperary for a similar offence. This man pleaded guilty. Perhaps he did not have powerful or influential friends to advise him. He was sentenced to jail. I thought everyone was equal in the eyes of the law. I do not understand how there is one law in Limerick or Tipperary and another in Dublin. There is only one law for the country. I do not understand how different verdicts were given. I accept the cases were held in different courts.

The justice said he found it hard to prove that anyone voted at all. I laughed when I read that because I wondered what happened to everyone who voted. Could he just conjure away people who voted in the election? I do not understand how anyone could face the public and say he did not know that people had voted in the election. This was the means used to let Mr. O'Connor off. I should have thought a more sophisticated attempt would have been made to pull the wool over people's eyes rather than this blunt, brazen affront.

It was mentioned earlier that this was merely the tip of the iceberg. All parties have done this. In 1932, when Fianna Fáil came to power, they did so through a lot of personation. Ever since they have become past masters at this not only in Dublin but in Limerick, Tipperary and elsewhere. From where I come in Limerick it is done on a very organised basis and the flatland effort mentioned by Deputy Spring is used as a central machine in getting polling cards from hotels, flats, and so on, and people are brought in from rural parts to cast their votes for certain parties. In the last election I caught six people impersonating and I booted them out of the polling booth. I did not go any further with that, but they ran like rats. I am sure hundreds more impersonated on that occasion. This was not confined to Fianna Fáil, although they are the best at this practice. They have the most experience at it, they are the most efficient and it works for them, especially in urban areas, but other parties have been guilty also. As a member of a very small party with only minute representation in this House I feel that this practice discriminates against small parties and Independents because it is done through money, organisation, transport and so on. It is a denial of democracy. It flies in the face of the democracy in which we all profess to believe. This practice should be stamped out and stopped. It is a despicable, Tammany Hall practice. It is a pernicious practice which has no place whatever in our democracy or in Irish politics. An independent commission should be set up outside politics to examine this abuse and to bring in recommendations to stamp it out once and for all.

I heard Deputy Fitzpatrick asking that the case be referred to a higher court, but I have not much faith in the courts in this connection because in the past I have seen powerful and influential figures in Irish public life and supporters of the main parties trying to stop democracy and to stop the law from taking its course. I am very sceptical about the chances of this practice being stopped at a higher level. I am cynical about the process of law in this country. If it is possible to bring the matter to a higher court in order to show that this was a very bad decision and a travesty of justice, I would have no objection to that course. However, I would prefer to place — or maybe misplace — my faith in an independent commission who would examine the whole electoral system here and bring in recommendations which would end once and for all these abuses of the system.

Mr. De Rossa

The bewildering wrangling that took place here yesterday indicates clearly to me, a new Member of the House, the need for some kind of rationalisation of the procedures, rules, Standing Orders, precedents and so on in order that issues of national importance can be brought forward here in the Dáil by any party or Member of the House. Concerning the electoral loophole that has been found, it is essential that whatever amending legislation is being brought in would be effective before polling day in the Dublin West by-election because it is very important that the electorate retain their confidence in the democratic process.

In relation to the further review of the electoral process itself, the franchise, how the register books are complied, postal voting for the disabled and so on, I ask the Minister to consider also the question of mobile polling stations for people on short-term stay in institutions where postal voting would not be quite adequate for their needs. Need exists also for a public educational programme to familiarise people, particularly the young people, with the election process. If that was done on a regular basis the opportunity for personating would be reduced considerably, because a large number of people do not vote simply because they do not know how to vote.

Finally, whatever changes are made in the procedures of the Dáil and in the Electoral Acts, it is important that we do it as mature individuals attempting at all times to ensure that the electorate have confidence in our ability to look after their interests.

An Leas-Cheann Comhairle

Is Deputy O'Leary offering?

Mr. P. Barry

He has the right of reply for five minutes.

Mr. M. O'Leary

By contrast with yesterday we appear this morning to have made some progress in this matter. It appears that there is willingness to take on immediately the task of amending the law and various speakers have referred this morning to ambiguity in the present law and the need to clarify it.

In my contribution I made the point that clarification is required that the offence consists in the act of applying for the vote rather than the actuality of the voting process itself. That appears to have been the difficulty. The difficulty of proof appears to have been the element of the problem in the case of the DPP versus O'Connor. That appears to be the view which the district justice entertained in that case and I have recommended that a change be made in our law to approximate it more closely with the corresponding British Act. Also I have made the point that the matter of the penalty to be attached to the offence should be clarified. The vagueness which surrounds the issue of whether the district justice has discretion to go for a suspended sentences rather than a mandatory prison sentence should be clarified also if we are to change the Act. I accept that the most important aspect of the law as it obtains at present is clarification of what constitutes the prerequisite of offence. That appears to be the main issue to be decided and that would require a very trifling operation in the existing law by way of either amendment or a new section. In any case no great time would be lost in drafting it. It is not a monumental work. It would be done in a matter of hours, or even minutes, because I do not know anyone on any side of the House who would object or has any query of objection in relation to such a change. It appears that we can proceed to that work rapidly so that it will relate to any future offences in respect of this matter. It should apply in the case of Dublin West, because it is very important that the law be clarified in this respect in time for that by-election.

Reference has been made here to the rather haphazard way in which registers have been complied. Undoubtedly there are people in Dublin West whose names appear more than once on the register, and if the law is not clarified such people will have an open invitation to engage, if they so wish, in double voting in that by-election. Clearly, it is not in the interests of anyone in this House that that should occur and, therefore changes should be made in the law without delay.

Apart from that, in my initial contribution this morning I said I hope that we could proceed as rapidly as possible to that change in the law. The point has been made very clearly that the DPP, being an independent officer, should, immediately, take whatever measures, remedies or steps he believes are advisable through the courts. In the Oireachtas our primary concern must be the outcome of that court decision on the existing law. That existing law being at present open to doubt, the Oireachtas must resolve that doubt and make the necessary changes in time for the by-election, because it is important that the people have confidence in the legislation governing elections and that this House should correct any anomalies that have arisen.

Dr. FitzGerald

I want to refer to a number of points. I hope that the DPP, acting independently with the powers given to him so to act by our Government eight years ago, will take note of what has been said in this House on all sides, and that in view of the cogent arguments advanced he will take the necessary steps to clarify existing law and ensure equality of treatment of people under the law.

It is certainly unsatisfactory that after Justice Kearney had given his verdict a case was taken in Tipperary and the district justice there allowed that case to proceed. The person concerned pleaded guilty, leaving the district justice with no alternative but to find him guilty and sentence him. I would have thought, following the case before Justice Kearney and the verdict given and since the time for a case to be stated had not yet elapsed, that the proper procedure would have been for the district justice to adjourn the case with a view to seeing whether steps were to be taken, rather than allow the defendent to go ahead and be trapped, perhaps, because he had not the same kind of legal knowledge or advice as Mr. O'Connor had. This person pleaded guilty and found himself subject to a jail sentence in respect of something where the law had been stated — wrongly, I believe — in another court that he could not be so guilty. I do not think ordinary people can accept the justice of that and the correct course of action for the district justice would have been to adjourn the case to give the DPP time to take his decision within the 14 days before a case was heard.

Deputy O'Leary has raised a point about the nature of the penalty. We suffer from the fact that in this country — and it is a situation which is different from that in other countries — there has continued to be a certain tolerance of personation, despite which it has until recently tended to diminish. That tolerance is aided by the fact that the proving of personation is rendered somewhat difficult by the procedures required and also by the fact that the sentencing situation is by no means clear. The sentence should be mandatory to mark the gravity of the offence and anybody committing an act of personation should know that there will be no freedom on the part of any district justice for any reason, whether good or bad, to suspend the sentence. It should be understood that by an act of personation the person concerned is incurring the risk of a mandatory jail sentence. This could be discussed in the context of the amendment in respect of double voting.

This debate has also brought out the general concern about the equality of the register and the whole electoral system. While we cannot deal with all that in the next week or so while preparing the necessary legislation on the immediate issue in advance of the Dublin West by-election, the concern expressed is such that the Taoiseach will probably agree that it would be useful for the parties to have some discussions on whether and how the present system and the register could be improved and difficulties overcome. Not every suggestion made here in this respect would command my support and some of the suggestions might create more difficulties than they would solve. Discussions between the parties might lead to some useful improvement in the system, which is not operating successfully. One of the reasons is probably that the very large increase in the electorate due to the increase in population and the lowering of the voting age ten years ago has overstrained the limited resources of those concerned, leading to a situation some years ago where my party found 1,100 people had been omitted from the draft register. When we went along rather proudly to the city sheriff with these names he said he had already 5,000 such names. Out of 42,000, to lose 5,000 from the draft register and pick them up in the interval suggested a degree of weakness in the system which needs to be examined. Apart from any discussion which may take place on an amendment the Taoiseach may well agree that it would be useful to have some discussions on general improvements in the system.

In view of the need for consultations on the legislative change required now and the fact that time will be required for the matter to be dealt with in both Houses and for signature by the President, I will not press for the moving of the writ for the by-election in advance of the expiry of the four days' notice running from last Monday, which could leave a very tight time scale. We want to be sure that the matter will go through both Houses and I seek the Taoiseach's assurance that the Seanad will be fully constituted in time to take the legislation before the by-election. We can leave time for that process if we move the writ after the expiry of the four days' notice next week.

The Taoiseach

I want to make it clear that this Government are anxious at all times to facilitate the Opposition in raising and discussing any current issue they wish because we want this House to be relevant and responsive to current issues. During my last period in office it will be acknowledged that I followed that practice.

Had the Opposition in this matter moved through the usual channels we would have had no hesitation in facilitating them in raising the matter. The long argument of yesterday need not have taken place. I am not saying this in any tendentious way but in a constructive way. We will always facilitate Opposition parties or individual Independent Deputies in so far as we can to try to make this House immediately responsive to current issues and questions.

Dr. FitzGerald

If the Taoiseach had said that yesterday, three-and-a-half hours could have been saved.

The Taoiseach

This system works more against the Government than against the Opposition. I have often been sitting in this chair prepared to facilitate the Opposition but not being allowed to do so because of rules of order.

(Interruptions.)

An Leas-Cheann Comhairle

The Taoiseach, without interruption.

The Taoiseach

I have suffered here as Taoiseach on a number of occasions and have been falsely put into a position where we were apparently reluctant to discuss something, which we were not, because of the rules of order.

Mr. L'Estrange

If the Taoiseach used his channels to appoint a Commissioner——

An Leas-Cheann Comhairle

Deputy L'Estrange should keep quiet and allow the House to get on with business.

The Taoiseach

I am as anxious as anybody else that this situation should be resolved because more often than not it puts the Government in a false light in regard to these matters. I reiterate that any time any reasonable request——

Mr. P. Barry

The Taoiseach could have answered the question yesterday.

The Taoiseach

I could not answer the question yesterday without undermining ——

Dr. FitzGerald

As I did on 15 documented occasions.

An Leas-Cheann Comhairle

The Chair would indicate to Deputy FitzGerald, Deputy L'Estrange and Deputy Barry that the Taoiseach has five minutes to reply and he cannot comply in that if there are continual interruptions.

Mr. L'Estrange

It is hard to listen——

An Leas-Cheann Comhairle

The Chair will not take interruptions from Deputy L'Estrange or anybody else, especially when there are only five minutes remaining for the Taoiseach. If Deputy L'Estrange does not want to listen he has his remedy.

Mr. L'Estrange

If the Taoiseach had made the appointment according to the usual procedure this would not have happened. Such codology——

The Taoiseach

Perhaps Deputy FitzGerald could ensure that there is common courtesy.

An Leas-Cheann Comhairle

Deputy L'Estrange, I will ask you to leave the House if you are not prepared to listen.

The Taoiseach

I did not interrupt one person this morning. I reiterate that the way the system works often puts us in this false position and I repeat in a non-tendentious manner that I had to sit here all day yesterday and could have resolved the situation had the rules of order allowed it. I was anxious to do so. The Opposition will admit that as soon as we got an opportunity to resolve this situation in a constructive manner we availed of that opportunity.

Reference has been made to personation and a lot of partisan remarks have been made in regard to it. The Fianna Fáil organisation maintain a very comprehensive system to prevent personation. That system is intended to work impartially and objectively. We try to man polling booths to ensure to the greatest extent we can that there is no personation by anyone. I want to give this assurance to the House——

Mr. M. O'Leary

The person who alleged there was personation was not alleging it in relation to Fianna Fáil.

The Taoiseach

I am glad to have that assurance. This Government are concerned to ensure that our laws are fully, fairly and impartially administered in respect of every citizen without fear or favour. Nobody is above the law. The officers appointed under our laws to discharge their functions and to execute the required procedures are completely independent in the exercise of their duties. This Government do not, and will never, interfere or attempt to interfere with the due process of law, particularly the criminal law. This is a basic element of our democratic system and of the administration of justice and the Government are resolved to uphold that principle.

I conclude by saying to Deputy FitzGerald that, of course, we will bring forward a draft amendment which we will discuss with the parties. I do not believe we will have any difficulty in agreeing on the form of that amendment. We will have it implemented into law in good time for the forthcoming by-election. We will also be prepared to discuss in a constructive way with the parties in Opposition what other more far-reaching changes might be made, particularly in the areas outlined by the Minister for the Environment.

It is a matter about which Fine Gael need not be unduly concerned if they decide to move the writ for the by-election today. They should feel free to do so because I have no doubt that we can implement the legislation in good time for the by-election one way or another.