I move: "That the Bill be now read a Second Time."
The Bill continues the programme of reform of the electoral law commenced last year with the enactment of the Electoral Act, 1992. The overall objective of that programme is to up-date the electoral law and, in effect, bring it into the last decade of the 20th century.
The 1992 Act, which amended and consolidated the law relating to Dáil elections represented the first substantial step in this programme. The present Bill continues the process and, as envisaged in the Programme for a Partnership Government, it is intended to follow up, in due course, with similar measures dealing with referenda and the other branches of the electoral law.
There are no fewer than seven separate electoral codes and modernising them all will, clearly, take time. It is, however, a job well worth doing. I think the House will agree that the electoral law, in particular, should be accessible and comprehensible to all and should not be the preserve of lawyers and specialists.
The Constitution sets out the fundamental principles relating to the election of the President. It deals, for example, with the right to vote, the qualification of candidates, the right to nominate, the term of office of the President, the electoral system and the time-frame for holding an election. It could be said, therefore, that the Constitution contains, within it, the essential elements of the code for the election of the President leaving over to ordinary legislation only the detailed regulation of the election.
At present, the statute law on the subject is contained in the Presidential Elections Acts, 1937 to 1992. The Principal Act is the Act of 1937 which has been extensively amended by the Electoral Act, 1963, and, to lesser extent, by later enactments. The law is, therefore, in a rather fragmented state and the conduct of a presidential election requires reference to six separate statutes. In addition, there are certain technical defects in the law, which have the potential to give rise to difficulty in particular circumstances. The Bill makes good these defects, provides for a more streamlined and efficient procedure for the conduct of the count, introduces a procedure for reviewing the result of a presidential election and provides for the consolidation of the law.
The most striking change proposed by the Bill is the elimination of the central count. Under existing law, the first count is carried out in each Dáil constituency by the local returning officer. The first count result for each constituency is announced locally. The ballot papers are then parcelled up and sent to the presidential returning officer who is required, by law, to count the votes and ascertain and declare the result of the election. With the exception of the 1945 and 1990 elections, the result of every presidential election has been decided on the first count. However, under existing law, candidates and their supporters, as well as the country at large, have to wait while ballot papers are sent to Dublin and the presidential returning officer goes through what seems to be a superfluous counting process, before the result can be formally declared. There is, in fact, no necessity for a central count, even where it is necessary to eliminate one or more candidates.
The Bill provides, therefore, for the conduct of the entire count at constituency level, with a central co-ordinating role being performed by the presidential returning officer. The result of the first count will be reported to that officer who will then calculate the quota and declare elected any candidate who reaches the quota on the first count. If no candidate reaches the quota the presidential returning officer will direct the exclusion of the candidate with the lowest overall total of votes and the transfer of the papers of the excluded candidates. These operations will be done at constituency level and the results reported to the presidential returning officer. Where necessary, depending on the number of candidates, the exclusion of candidates will continue on this basis until a candidate can be declared elected by the presidential returning officer. Candidates and their agents will have the right to attend at, and supervise, proceedings at the count in each constituency and also at the central ascertainment of the result. As at present, candidates will have the right to demand a complete recount of the ballot papers.
The House will recall that the result of the 1990 presidential election was not declared until nearly 48 hours after the close of poll. Under the arrangements provided for in the Bill, it should be possible to have the count completed in a single day even where the elimination of a number of candidates may be involved.
I referred earlier to certain apparent defects in the present law. These centre on the nomination of candidates and related procedures. Under existing law, if a Member of the Oireachtas signs more than one nomination paper, all such papers signed by him, except the first received by the presidential returning officer, must be disregarded. This could lead to a situation which was clearly not intended. For example, if a Member were to sign a nomination paper which has fewer than 19 other signatures and subsequently joins in a nomination with 20 or more Members, the later nomination must be disregarded entirely, while the original nomination paper would be ineffective due to the absence of a sufficient number of signatures. To eliminate this possibility, the Bill provides that, where an Oireachtas Member signs a nomination paper in respect of more than one person, his or her signature on the first nomination received by the presidential returning officer will be regarded as valid and the signature on any subsequent nomination will be disregarded, with prejudice to the signatures of any other Oireachtas Members on that nomination paper.
Another defect in existing law is that if a candidate wishes to withdraw before the close of nominations, it does not seem open to his proposers to make a fresh nomination. A candidate may only withdraw during the ruling on nominations or on the — later — day appointed for withdrawals — in other words, when it is too late for his proposers to consider a new nomination. Under the Bill a candidate will be allowed withdraw at any time up to the completion of the ruling on nominations and it will be open to his proposes to nominate another candidate within the time allowed for nominations.
Existing procedures in the event of the death of a presidential candidate are not altogether satisfactory. Under existing law, where a candidate dies after the election has been adjourned for the purpose of taking a poll, the election is commenced afresh, with a new period for nominations. However, existing law makes no provision relating to the death of a candidate where it occurs just after the close of nominations, or so shortly before the close of nomination, that there is not sufficient time to nominate a replacement candidate. To cover this situation, the Bill provides that where a candidate dies more than five days before the close of nominations, the election will continue and the proposers of the deceased person will have an opportunity to nominate another candidate. If a candidate dies during the five days preceding the close of nominations, or after the close of nominations a fresh election will be held, with a new period for nominations.
The law relating to the ruling on nominations provides for a judicial assessor, who is the president or another judge of the High Court, and for a tribunal, consisting of three judges of the High Court, to rule on any objections. The respective roles of the returning officer, the judicial assessor and the tribunal are not very clear. Accordingly, the Bill clarifies that the function of the judicial assessor will be to furnish his opinion on any matter referred to him and the provision for a special tribunal is repealed. However, a candidate or his authorised representative, will still be entitled to object to the ruling on the validity of a nomination or in relation to the qualification of a candidate, and the objection will be heard by the High Court.
Unlike the other electoral codes, no statutory procedure is provided in existing law for questioning the result of a presidential election. Given the status of the office of President, we would all hope that the question of a legal challenge will never arise. Nonetheless, it would seem appropriate to lay down a specific statutory procedure for dealing with any possible challenge as is done in other electoral codes. The Bill, accordingly, provides for a petition procedure based on, and applying with appropriate modifications, the Dáil petition procedure contained in the Electoral Act, 1992.
Having regard to the constitutional importance of the office of President, the Bill provides that a petition may only be presented with the leave of the High Court and that such leave may be sought only by the Director of Public Prosecutions, a candidate, or the election agent of a candidate. The application for such leave must be made within seven days of the declaration of the result of the election. The grounds for petition will be restricted to the commission of electoral offences, obstruction of the election, or mistake or irregularity likely to have affected the result.
In addition to amending the law as I have outlined, this Bill consolidates the presidential elections code using the Electoral Act, 1992, as a model. It applies, with appropriate modifications, the procedures in the 1992 Act which are common to elections generally, including procedures relating to postal voting, voting by disabled electors, polling on islands, taking the poll in polling stations, voting by election staff, arrangements for counting of votes and the retention and disposal of election documents.
The Bill continues the programme of electoral reform commenced last year with the enactment of the Electoral Act, 1992. It is essentially a consolidating and up-dating measure and I trust the House will afford it a swift passage into law. In recent years we outlined a programme to continue to reform and up-date all our laws relating to general, presidential and other elections and referenda. It is good to take the opportunity to reflect on our electoral law at a time when there is no prospect of a presidential election. Our esteemed President, Mrs. Mary Robinson, is performing admirably on behalf of Irish people, both at home and abroad.
I hope my colleagues in this House will continue with the process of reforming our electoral legislation later this year or early next year. It has been a difficult and tedious process to remedy some of the defects in our existing legislation and I am indebted to the staff of my Department, whose judgment in electoral matters is sound and whose expertise is good and to the Attorney General and others who have had an input in bringing forward this reforming Bill.
