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Dáil Éireann debate -
Tuesday, 16 Oct 2001

Vol. 542 No. 2

Electoral (Amendment) Bill, 2000: From the Seanad.

On a point of order.

Deputy Gilmore on a point of order.

As I understand it, Standing Orders only permit discussion on the Seanad amendment.

This Bill was rushed through this House and the Seanad in its amended form. As a result there are differences between references in the Title and other sections in the Bill and the Standards in Public Office Act, 2001, which was originally intended to succeed the Electoral (Amendment) Bill.

Section 1(2) of the Electoral (Amendment) Bill states, "The Electoral Acts, 1992 to 1999, and this Act may be cited together as the Electoral Acts, 1992 to 2001." However, the Standards in Public Office Act states that the Electoral Acts, 1992 to 1999, and the Standards in Public Office Act may be cited together as the Electoral Acts, 1992 to 2001. The collective Title of this legislation will be different to that in the Standards in Public Office Act.

Similarly the Title of the Bill refers to amendments to the Local Elections Acts, 1994 to 1999. This would have been the correct statement of the amendments to be made at the time the Bill was published. However, since then the Houses have passed the Local Government Act, 2001, which in turn changes the electoral legislation in respect of local government. The Title and collective citation of the Bill before the House does not refer to the Local Government Act, 2001.

I am advised that if this remains the case there will be a legal difficulty regarding the interpretation of this legislation and the manner in which the courts may deal with it. This has arisen because of the sequencing of the legislation. Much of this legislation was dealt with quickly before the summer. There would have been no difficulties if the sequence had been as originally intended. However, the sequence is out of kilter and this Bill is back in the House due to the Seanad amendment. As a result, technical amendments have to be made to it which arise from the passage of time.

I also draw attention to a number of drafting amendments which are required to the Bill. During debate in the Seanad, Senators Costello, O'Meara and Ryan listed 46 such amendments. However, those drafting amendments were not addressed because of the manner in which the Bill was dealt with in the Seanad. As a result, if we simply deal with the Seanad amendment before the House, and if it is accepted, we will pass a Bill with an inaccurate collective citation and Title.

In the case of one of the 46 drafting amendments to which I referred, a constitutional difficulty could arise due to an anomaly in which, for example, if a constituency was otherwise uncontested a candidate would be deemed elected even though he or she was only 20 years, 11 months and two weeks old when his or her nomination was submitted. Such a candidate would be deemed elected even though he or she was under 21 years of age which is at variance with the Constitution.

The Minister should agree to recommit the Bill to committee to deal with these and other matters.

I have allowed the Deputy to make his point. We are dealing with an amendment from the Seanad. This procedure is covered by Standing Order 57 which is very specific. It states:

An amendment made by the Seanad to a Bill initiated in the Dáil may be accepted by the Dáil with or without amendment or be rejected. No amendment shall be moved to an amendment made by the Seanad that is not strictly relevant thereto, nor can any other amendment be moved to the Bill unless it be consequential upon the acceptance, amendment or rejection of a Seanad amendment.

Perhaps we should deal with the amendment before the House.

I am trying to be in order and I appreciate what you have said, a Leas-Cheann Comhairle. I accept that the point I made could not be addressed by way of an amendment and it would not have been in order to submit amendments which do not arise from the Seanad amendment. However, I am drawing the attention of the House—

The Chair has been more than fair to the Deputy in allowing him time.

Will I have an opportunity to come back to this issue?

That depends on how the amendment is dealt with and whether it has any impact.

The amendment is a separate issue.

There will be an opportunity to comment on this issue on Fourth Stage.

We are only dealing with the amendment.

We will only deal with the amendment now.

Deputy Gilmore has raised a valid point. I accept that we are only dealing with the amendment.

The point has been made. The item before the House is an amendment from the Seanad. The relevant Standing Order is quite specific so we wish to debate the amendment.

I accept that, but in view of the points raised by Deputy Gilmore if we deal with the amendment is the Bill not passed into law? If, as Deputy Gilmore suggests, the Bill is flawed is it wise to proceed? Can we adjourn for five minutes to allow the Minister to confer? We are not trying to be obstructive, but we wish to ensure we do not pass flawed legislation.

As the Minister would need to be briefed by his officials it would be appropriate for the House to suspend for ten minutes. The Minister could then make a comprehensive statement regarding these matters which are important to us all. It is in no one's interest to pass flawed legislation for the want of time.

The 46 drafting amendments referred to by Deputy Gilmore were deemed out of order in the Seanad and would not have been accepted even if they had been in order. I am also instructed that many citations of Acts may be slightly out of kilter because of the passage of time and that the Interpretation Acts deal with this. I do not feel the need for further consultation on the matter.

What we should do at this stage, Deputy Gilmore, is deal with the business before the House, that is, No. 1. Depending on how the amendment is dealt with—

The Chair indicated to me earlier that I would be able to pursue this matter on Fifth Stage.

Unfortunately, we will not have a Fifth Stage. We are dealing with the amendment now.

We are in this fix and back in the Dáil because—

We are dealing with one item which is before the House and agreed to by the Whips. I suggest that we deal with that item at this stage.

Then the Bill is passed.

I think the House has a responsibility to ensure the legislation we pass stands up legally. I have drawn attention—

That is not the function of the Chair.

It is the function of the House.

It is the function of the House. I am drawing attention—

What the Deputy is doing is introducing business to the House that the Chair has no competence to accept. The Chair is dealing with No. 1, as agreed to by the House this afternoon, an amendment from the Seanad. I would prefer that we deal with that amendment. It is not the function of the Chair to give a legal interpretation of Bills before the House. It is the function of the Chair to ensure we deal with the business agreed to by the House. We are dealing with No. 1. I ask the Deputy to allow the Minister to deal with the amendment.

I am raising a point of order.

The Deputy has made his point and the Chair has been very flexible with him. He has had ten minutes to make his point.

I am seeking a ruling on that point of order. I am drawing attention to flaws—

The Chair has made a ruling.

The Leas-Cheann Comhairle has not made a ruling. I am drawing attention to flaws in the legislation which arise from the sequence of the legislation—

The Chair cannot decide on the legal interpretation of legislation and then make rules as to how the House will deal with it. The Chair is obliged to deal with the business before the House. The business before the House is the Electoral (Amendment) Bill, 2000, amendment from the Seanad. I have read out Standing Order 157 and ask the Deputy to allow us proceed with the business.

On the point of order, I am trying to prevent the House from being embarrassed.

The Deputy will have to find another way of doing so because the Chair is now proceeding to—

This is the only opportunity I have. If the amendment from the Seanad is debated and agreed to by the House, then the Bill will be deemed to be passed.

That is true.

The Bill which will be deemed to be passed by the House is one which has flaws which arise from – the Leas-Cheann Comhairle should hear me out because it relates to the amendment – the sequence of events which led to—

But not the Seanad's particular amendment.

No, but it arises from—

The amendment may be agreed to or rejected by the House. We are taking it now. The Deputy is totally out of order. The Chair has ruled that we are taking the amendment now. I am having no more debate on the matter. I have ruled that the business before the House is No. 1. The Deputy has had 15 minutes on it and we are moving on.

In order that we might have one minute, may I ask for a quorum?

No, I have ruled that we are taking the amendment now.

I cannot ask for a quorum?

Notice taken that 20 Members were not present; House counted and 20 Members being present,

The Dáil went into Committee to consider an amendment from the Seanad.
Seanad amendment No. 1.
Section 59: In page 94, lines 29 to 51 deleted and in page 95, lines 1 to 39 deleted.

The question before the House is that the Seanad amendment be agreed to. The amendment deletes section 59 of the Electoral (Amendment) Bill, 2000. The amendment to include section 59 was brought forward by the Government and passed in this House in response to an amendment tabled on Committee Stage by the main Opposition party and supported by the Labour Party spokesman. It provided for the prohibition of the taking and publication of an opinion poll in the seven day period prior to polling day or the publication of an opinion poll in the same period, which was taken prior to that period but not previously published. The prohibition was to apply to all polls, both public and private. There is no need to go into the history of the matter. In its wisdom, the Seanad decided to delete that proposal with very little opposition from the parties opposite.

I will put the Minister out of his misery by assuring him at the outset that I will not oppose the amendment. However, I cannot help hoping Deputy Gilmore is correct in asserting that the legislation is flawed. I oppose the main thrust of the Bill. It did not set out to enable electronic voting or make minor changes in our electoral system, but rather to increase – in the case of Fianna Fáil by 50% – the level of spending available to political parties and to legislate for corporate donations. Of course, I am not allowed to raise that topic today. Nevertheless I will not oppose the amendment.

I regret the Seanad tabled the amendment and that it was not possible to hold a rational debate on the subject of opinion polls, which I and most right thinking people consider to be a reasonable expectation. There are very few civilised countries in which such a debate has not taken place.

I recognise the reason the amendment was withdrawn, although I do not agree with all the arguments made for so doing. I do not believe the Minister's statement that the main reason the Government accepted the amendment was the loss of consensus. Legislation has been passed without consensus before. Neither did the problem lie with the drafting, despite the considerable publicity it received at the time and the fact that the drafting was flawed. The proposal was withdrawn largely because the public in general and the media in particular felt it was being pushed through, which is true in a sense because the whole Bill was pushed through at the last minute before the summer recess.

Unfortunately, because the matter was not raised until the very end of Committee Stage, there was no time to debate it. All Stages were, I believe, concentrated into two weeks leaving no time for temperate and reasoned debate about opinion polls. While opinion polls alternately cause us despair or delight, we all value them nonetheless. I want to debate the value of and possible damage caused by opinion polls in the immediate run-up to an election, particularly a general election.

I regret we did not have time to debate the matter rationally to allow us draw conclusions from events of the past or experiences in other countries. I am aware it is impossible to draw definite conclusions because one can never objectively measure the impact of information or opinion. However, there is anecdotal evidence that opinion polls influence elections. In the case of the British general election, the media reported that the opinion poll before the election encouraged voters not to vote. That is probably the most worrying aspect of opinion poll outcomes.

The issue warrants a debate. I accept it is a sensitive question which requires striking a balance between our entitlement to information and our right to cast our vote without undue influence being brought to bear. In the last few days before an election an opinion poll is more formative than informative. If we value our democracy, view our individual vote as sacrosanct and regard the outcome of an election as the sum of individual votes rather than the expression of collective opinion, we should worry about the effect of opinion polls in the final days before an election and debate the matter in a rational and considered way. We will revisit the issue. I will not oppose the amendment.

As this is the first opportunity to do so, I welcome the Minister back to active service. This Bill and the amendment we are addressing arose prior to the summer recess when the Government succeeded in rushing a large amount of legislation through the House. It was most anxious to get this Bill through the House because it provides for increased spending limits for the next general election and retains, albeit in a reduced form, the corporate donations which my party had sought to have completely banned.

When we last considered this legislation before the summer it was speculated that the Taoiseach might take the opportunity of the summer recess to dissolve the Dáil and call a general election. Tabling the amendment required that the Bill be brought back to this House for consideration. In so doing the Seanad guaranteed the House would reconvene after the summer recess because the only legislation in its entire programme the Government wants enacted before the next election is not legislation dealing with taxation or social welfare or any of the matters that concern the public, but legislation that will make it easier for itself to get re-elected. This legislation provides for the increased spending limits which will disproportionately benefit the Fianna Fáil party and provides for the continuation, albeit in a limited form, of corporate funding mainly of the Fianna Fáil party.

It was the rush to get that legislation enacted which gave rise to the set of circumstances that has us re-examining it today. In the Government's rush to get the legislation through the House it would not consider any reasonable amendment from this side of the House on this issue; it would not consider the arguments being made, that we should not rush the fences on the provision dealing with opinion polls.

When this Bill was on Report Stage, I proposed a motion that this provision in it should be recommitted to Committee Stage. I argued that the time which was then allowed on Report Stage – and it was a guillotine debate, as I recall – did not permit us to examine in the kind of detail required an amendment which had been circulated only that morning.

It introduced quite an amount of new material which had not been considered on Committee Stage. This material included the prescribing of new offences in this legislation. The legislation generally provided for offences and fines and penalties but this amendment provided for new penalties and new offences and this House was given no real opportunity of considering and debating that amendment in detail. I argued on Report Stage and proposed that this should have been recommitted to committee and properly examined.

As Deputy Olivia Mitchell mentioned, the question of when or if opinion polls should be taken in advance of a general election should be discussed in a reasonable way, in a way free of the kind of excitement which was generated, largely because of the Government's attempt to rush the legislation through. The Government would not hear of that proposal – it rejected it. We now see the result of that rejection; the Seanad found that this provision was seriously flawed and the Government was forced to reverse engines and come back to this House to seek to have it removed.

I predict that the matters which I raised here earlier with the Leas Cheann Comhairle by way of a point of order are matters that we will be forced to re-visit because of the flaws in this bad Bill. I will not oppose the deletion of this section from the Bill because that deletion is perfectly consistent with the view which I took on Report Stage that this issue should be recommitted to committee anyway for proper consideration.

I wish that instead of deleting one section of this Bill we rejected this Bill altogether. That option is not open to us this evening because, as I understand the Standing Orders of the House, the acceptance of the amendment from the Seanad will result in the Bill being deemed passed. The Bill in its totality is bad legislation, it is technically flawed and some aspects of it may be unconstitutional. It is giving an unfair electoral advantage to the largest political party in the State by way of the amount of money which can be spent at a general election. It has been introduced for that purpose primarily; it has been introduced to assist the main Government party in its efforts to be re-elected to Government. As such, it is profoundly undemocratic.

It is an issue that will need to be taken to the people and debated whenever this Government decides to give up the pretence that it can effectively govern any longer and take itself to the people for their verdict on its lamentable performance. I regret this Bill is not being rejected in its entirety. Because of the issues which I raised earlier I have good reason to believe that many aspects of this legislation may end up being contested elsewhere.

Seanad amendment agreed to.