I move: "That the Bill be now read a Second Time."
This Bill represents a response to the judgment of the Supreme Court on 13 November 2006 in the cases of King, Cooney and Riordan. The judgment deals with the assentor requirements for the nomination of Dáil candidates who are not members of registered political parties. The net impact of the judgment is that no statutory mechanism is in place to regulate the nomination of such candidates standing for election. This must be addressed before this year's general election.
I will outline briefly the background to this problem before I speak about the detail and implications of the court decision. The assentor provisions for the nomination of candidates were enacted in 2002 to provide an alternative to election deposits. This followed the 2001 High Court judgment in the Redmond case which found the deposits system which had been in place throughout the history of the State to be unconstitutional. The assentor provisions, as enacted, required the nomination papers of certain Dáil candidates to be assented to by 30 people, excluding the candidate and any proposer, who were registered as Dáil electors in the relevant constituency. Each assentor had to sign the candidate's nomination paper which was usually lodged at the main local authority offices. These requirements were put in place as an alternative to the system whereby a certificate of political affiliation had to be attached to the nomination papers of members of registered political parties.
The State had several grounds of appeal to the Supreme Court in the recent cases. It was successful on all but one point. The court upheld the main requirement of obtaining 30 assentors to help to ensure the proper regulation of elections. It struck down the provision that required the personal attendance of all assentors in a single location in a constituency, however, on the basis that it could make excessive demands on the time of assentors. The court found that the provision was disproportionate to the objective it was trying to achieve, the due authentication of nomination papers. It, therefore, declared section 46(4B) of the Electoral Act 1992 to be unconstitutional. The statutory mechanism that regulated the manner in which such candidates stood for election is no longer valid in the light of the judgment.
Most parliamentary democracies try to regulate access to the electoral process in some way. It is widely seen as necessary to discourage an excessively large number from contesting an election and prevent frivolous candidates from entering the field and making a mockery of the democratic process. The need to prevent too many people from contesting elections was endorsed on page 19 of the Supreme Court judgment which supports fully the right of the Oireachtas to legislate in this area:
The Court is satisfied, and considers it self-evident that the State has a legitimate interest in regulating the conduct of elections by law, subject to the Constitution, in the interests of, inter alia, protecting and maintaining the integrity and efficacy of the electoral process for Dáil Éireann as well as ensuring that those elections are conducted free from abuse and in an orderly fashion consistent with democratic values acknowledged by the Constitution.
The judgment continues, on page 21:
In the view of the Court the State has a legitimate interest, founded on rational considerations, in being concerned that the integrity of the electoral process is not tainted by frivolous candidates or a seriously excessive number of candidates on the ballot paper.
In Ireland the purpose of a general election is to elect members to Dáil Éireann in accordance with the Constitution, with a view to the formation of a Government. Elections must have a reasonable structure and coherence if voters are to be able to foresee what the impact of their votes might be on the eventual composition of the Dáil and if they are to exercise a meaningful choice towards that objective. If an overly large number of candidates were to contest an election, it might have an impact on the democratic right of voters to play a meaningful part in the political process. As always, a balance has to be struck. In this case, the balance is between providing for a reasonable test of the bona fides of a prospective candidate and not setting that test so high as to unduly restrict people from seeking election. Having considered the issues involved, I am proposing to the House the measures provided for in the Bill.
I would like to explain the overall approach being adopted in the Bill. Almost by its nature, electoral law is complex. It can be challenging to read and make sense of some of our existing electoral law. In the Bill I am trying to avoid, as far as possible, making isolated textual amendments to the law which are not easy for people to follow. I have decided to present to the House a continuous text dealing with nominations in general. I propose to insert the specific new provisions arising from the court judgment within that text. Such an approach will allow Deputies to place the new provisions in their proper legal context. It will result in a single text that can more easily be understood and implemented. One of the considerable merits of this approach is that, unlike most other electoral legislation, it will provide a continuous narrative. If the Members of this House can be faulted for anything, we can be faulted for making changes in law which make the law less readable, understandable and coherent. The Bill repeals and re-enacts without amendment most of the existing settled law relating to nominations. I will highlight the new provisions proposed to meet the terms of the court judgment. It is not necessary for me to comment on the Bill's proposals which have been in place as statutes for a long time. At this stage in the electoral cycle our attention should primarily be on the limited new provisions we need to put in place before the upcoming election.
The Bill provides for two alternative ways of regulating the nomination of Dáil candidates who do not possess certificates of political affiliation. It provides, first, for assents requiring the completion of statutory declarations by 30 assentors in the constituency which may be witnessed by a commissioner of oaths, a peace commissioner, a notary public, a garda or a local authority official. This provision could hardly be wider — we did not include postmen and bus drivers because we wanted to contain it a little. Second, the Bill provides for a process, whereby the candidate, or someone acting on his or her behalf, can lodge a deposit of €500 with the returning officer in advance of the deadline for the receipt of nominations.
As regards the assents procedure, the move to the use of statutory declarations allows a much more flexible system to be put in place. Previously, each assentor had to travel to the local authority office to sign the candidate's nomination paper. Assentor signatures will now be on documents attached to a nomination paper, as opposed to being on the actual paper. This is one of the most open nomination systems in the developed world. I know of no other system in use in the developed world and particularly in other European countries which is more liberal.
The break in the physical link with the nomination paper allows for more flexibility in the time for assents to be obtained and the Bill avails of this opportunity. The five categories of authorised persons who may witness the statutory declaration will also ensure a wide spread of locations with easy access for assentors. For example, under the Solicitors (Amendment) Act 1994, every practising solicitor, of whom there are more than 6,000, has all the statutory powers of a Commissioner for Oaths. The form of statutory declaration will be prescribed by the Minister and relevant details of an assentor must be included on the declaration. An assentor will have to present prescribed photographic ID to the person who is witnessing the declaration.
I wish to explain the alternative of deposits. In lieu of obtaining 30 assents, a candidate may choose the alternative of lodging a deposit. If he or she does not do so, their candidature will be deemed to have been withdrawn. The provisions are similar to the previous deposit system which operated until 2001.
This is consistent with the Supreme Court judgment. Notwithstanding the High Court decision in the Redmond case that year, the thinking on a return to a deposit system is informed by comments of the Supreme Court and advice from the Attorney General. To be clear on this point, I will quote directly from the Supreme Court judgment — page 22 — where it is refers to the deposit of £300 which was required under the Electoral Act 1992:
In contemporary Ireland it is difficult to comprehend how a sum anywhere in the region of £300 or its equivalent in Euro (or more if inflation is allowed for in the meantime) could be considered a disproportionate measure for such a legitimate purpose or to involve invidious discrimination, given the costs necessarily otherwise incurred by candidates and the possibility, at least in certain circumstances, of a refund of the deposit.
In further response to the Supreme Court judgment, the Bill provides that the candidate, or someone on his or her behalf, has the option of lodging a deposit of €500 with the returning officer before the deadline for receiving nominations. The sum of €500 is less than the figure introduced in 1992 if that figure were to be increased by the rate of inflation. It is significantly less than the figures which applied in this State from 1922 onwards when in the first elections in the history of the State, the deposit was £100 which is significantly more than the sum of €500.
In summary, candidates standing for the Dáil who are not in possession of a certificate of political affiliation may now choose which option best suits their own circumstances — either assents or deposits — to support their nomination. This represents a significant improvement on the previous arrangements and fully meets the relevant constitutional requirements. It is undoubtedly one of the most liberal arrangements in the developed world.
The Bill contains three sections. Section 1 is the main provision. It amends the Electoral Act 1992, as previously amended, by inserting sections 44 to 52 in substitution for the existing ones. These sections cover the nomination of all candidates for election to the Dáil and most of the existing, settled law in this area is being re-enacted without amendment. This produces a more coherent narrative. The amendments necessary to meet the terms of the Supreme Court decision are being incorporated, as appropriate, in the re-enacted sections so as to give a single text relating to nominations generally.
Section 44 restates the law on the giving of a public notice at a Dáil election by the returning officer. The public notice sets out the time and place for receiving nominations and related arrangements. A new section 44(b) requires details of the new assentor and deposit provisions to be included on the notice of election.
Section 46 contains the substantive provisions underpinning the two alternative mechanisms to regulate the nomination of Dáil candidates who are not in possession of a certificate of political affiliation. Section 46(5) is a new section. It provides specifically that either the assents or deposits system must be complied with before the expiration of the time for receiving nominations. A consequential provision is included in the new section 46(2)(b) relating to inclusion of details of the new provisions on the notes to the nomination paper.
The detailed procedures for assents are set out in the new section 46(6). The relevant details of the assentors to be included on the statutory declaration are the assentor's number and polling district letters on the register of Dáil electors in force at the time of assent, the address on the register, the contact details, the relevant Dáil constituency on the date of assent where he or she is registered, the name and address of the candidate and the form of prescribed photographic ID produced and any number on it. An assentor must confirm on the statutory declaration that he or she has not consented to the nomination of any other candidate in the election concerned.
Under the Statutory Declarations Act 1938, a person who knowingly makes a false or misleading statutory declaration is liable on conviction to a fine not exceeding €2,539 or imprisonment for a term not exceeding six months or both. However, given that the misbehaviour of an assentor could have a dire consequence for a candidate, I have introduced a new section 52(1)(c). This provides that a candidate’s nomination will not be invalid where a person assents to the nomination of more than one candidate. A candidate could be quite innocent if an assentor decided to misbehave or to make a misstatement or false statement. It seemed to me that the candidate should not suffer disproportionately for the misbehaviour of an assentor. It could be somebody acting the clown or who deliberately decides to make two assents with a view to nullifying a nomination of a candidate. The candidate should not suffer for the fraudulent assentor but the fraudulent assenter can be punished for his or her false declarations. Statutory declaration forms will be available free of charge from registration authorities and returning officers.
An assent will be valid in respect of the constituency in which the assentor's address at the time of assent is located. The assent may be made at any time but it may only be used at the next general election or by-election in the relevant constituency and it expires when the current register ceases to be in force, notwithstanding that no such election may have been held by then. This is a liberalising clause to ensure that nobody is unduly pressured for time on the issue of making the assent. Responsibility will lie with the candidate or proposer to attach the 30 statutory declarations to the nomination paper and deliver all the documentation to the returning officer by the deadline for receipt of nominations. Where there are more than 30 statutory declarations attached to the nomination form, the first 30 attached will be taken into account.
Under the new section 52(1)(b), a returning officer may rule as invalid a nomination paper from a candidate who has opted for the assenting alternative if the returning officer considers that the candidate has not complied with the relevant statutory requirements set out in the Bill.
Instead of obtaining 30 assents, a candidate may choose the alternative of lodging a deposit under the new section 47. A candidate, or someone on his or her behalf, may lodge a deposit of €500 with the returning officer before the deadline for receiving nominations. If a candidate chooses this option and fails to lodge the deposit with the returning officer by the relevant deadline, his or her candidature will be deemed to have been withdrawn.
I regard the amount of €500 as reasonable. It is significantly less than the £300 enacted in 1992 as updated by reference to inflation and it is dramatically less than the figure of £100 in the 1920s. Under the new section 48, the deposit will be returned to successful candidates, to those receiving votes in excess of a quarter of the quota and in certain other circumstances, such as withdrawal of candidature or death. Otherwise, the deposit will be forfeited.
Section 2 of the Bill amends the Schedule to the Electoral Act 1997 to ensure that travelling and other expenses that may arise for a candidate or an assentor in meeting the assentor requirements, and the amount of any deposit paid, will not be regarded as an election expense. Section 3 is a standard provision relating to Short Title, collective citation and construction.
To conclude, elections are fundamental to the operation of our democracy. It is incumbent on us, as legislators, to ensure they are conducted in a fair, orderly and open manner. Candidates who are not in possession of a certificate of political affiliation will, under the terms of the Bill, have a choice in the mechanisms they use to support their nomination. This is a balanced and proportionate response to the terms of the Supreme Court judgment. I commend the Bill to the House.