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Dáil Éireann debate -
Wednesday, 13 Jul 2022

Vol. 1025 No. 4

Electoral Reform Bill: From the Seanad

The Dáil went into Committee to consider amendments from the Seanad.

Deputy Howlin has a point of order.

I indicated to the Ceann Comhairle’s office that I wanted to raise a point of order at the outset of the debate. It sits into the real concerns that many Members have had with the way business is being conducted. I know it will be a cause of personal concern to you, Sir,, as Chairman of this House.

Substantial amendments were tabled in the other House that were never debated because it was guillotined. They have come back here and are most unlikely to be reached in the 45 minutes that we have for the debate. I believe there are fundamental errors in the drafting of the Bill because it has been so rushed. It is an unfair of dealing with legislation. It is unfair to this House and the staff of this House, particular in the Bill’s office and in your office, Sir. It is not a way to proceed.

In particular, I want to draw our attention, Sir, to amendment No. 31, which came to us from the Seanad. It includes a square bracket around the word “mandatory” under section 161(7). This is a very important issue because the subsection states:

Where, in the opinion of the Commission, a person to whom a [mandatory] code of conduct is addressed is failing or has failed to comply with the code, the Commission may apply, by motion, to the High Court for an order directing the person to comply with the code, and the Court may, as it thinks fit, on the hearing of the application, make or refuse to make such an order.

Legislation cannot be drafted with a square bracket around a word like “mandatory” because it changes the meaning of the section. How is any citizen or court to interpret the intentions of the House? Is it a mandatory code or is it just a code? This is clearly an error, because this was obviously a drafting stage section where the square brackets were not actually removed or the word was not removed – either one or the other. The square brackets appeared in amendment No. 103 on Committee Stage in the Seanad. The guillotine fell and the amendments were never reached and discussed, and now the square brackets are appearing in amendment No. 31 in the list before the Dáil today.

I submit, as I did in writing to you, a Cheann Comhairle, that it is not open to the Dáil to adopt an amendment such as this. It is not fit for purpose and it is not possible to correct it because if we take out the word within the square brackets, that changes the meaning of the Bill as passed by the Seanad. What are we to do?

I am very conscious of the fact that the Deputy has more parliamentary experience than I and the two other Members present in the Chamber put together. That might be a little different now that Deputy McGuinness has joined us. I am very conscious of the points made by the Deputy. I share his concern about the large volume of legislation being brought to the House at the end of term. This is a problem that has been raised in the past and remains to be resolved. The Committee on Standing Orders and Dáil Reform today considered matters relating to pre-legislative scrutiny and I have introduced a measure which, when implemented, will shorten the timeframe of pre-legislative scrutiny. The problem here is that there was no pre-legislative scrutiny at all.

When it comes to this particular matter, Standing Orders 227 and 228 are the relevant Standing Orders. Standing Order 196 is the one that would allow the Clerk of the House to make an amendment but, since this is an amendment that is neither verbal nor formal in nature, he cannot intervene and, therefore, I must make a judgment. The judgment I have made, be it right or wrong, is that the relevant Standing Order is 228. To that end, however reluctantly, I am proposing that we proceed. I thank Deputy Howlin. He does the House a service by raising this matter.

There was a time when I knew all the Standing Orders but I am afraid that is no longer the case. I ask the Ceann Comhairle to outline the import of that particular Standing Order. Does the square bracket stand or not stand in the legislation?

I believe it stands.

How is it to be interpreted in the courts?

Neither the Deputy nor I can decide how it is going to be interpreted in the courts.

It is a fundamental concept of law that citizens cannot know whether it is a mandatory code, a voluntary code or just a code. We cannot have that level of ambiguity in legislation and it is fundamentally wrong for the Minister of State to bring this before us.

I will link this to another point. I did not deal with the Bill originally; my colleague Deputy Nash did so. He wrote to the Minister of State a week ago on another matter, relating to an amendment we have tabled that is unlikely to be reached, which the Minister has explained to the House has a meaning that clearly is not encompassed in the draft he has put before us. We will not have time to reach that amendment. This relates to the serious matter of the obtaining of foreign donations for a political party. It is clearly the intention of the Minister, as he stated, that any moneys accrued from a fundraiser in New York, for example, could not be expended in the State. If we pass the amendments that have been laid before the House, however - amendments that we will not have a chance to read - it will be possible for those donations to be expended in this jurisdiction, despite the explanation of the Minister. My colleague, Deputy Nash, wrote to the Minister of State a week ago on this issue but we have not had the courtesy of a reply despite the fact that the Bill is being bulldozed through. This is a bad way to make important laws that affect the very functioning of our democracy.

I will read into the record that Standing Order 228 provides:

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.

There is a dilemma. We could speak about this for a long time but I would like the House to deal with as many of the amendments as possible. If the Minister of State wishes to comment on this, I would welcome that.

I appreciate the issue being raised by Deputy Howlin. Specifically on amendment No. 31, the proposed section 161 provides that the electoral commission may publish codes of conduct in respect of online electoral information or online electoral process information. Section 161(7) provides that where a person to whom a mandatory code is addressed has failed to comply with the code, the commission may apply to the High Court for an order directing the person to comply with the code. The word "mandatory" is in square brackets in the text. I am satisfied that the text is referring to a mandatory code. Clearly, the commission could not apply to the court seeking compliance with an optional or non-mandatory code. That simply would not be possible or make sense. I am satisfied that the meaning is clear but I am happy to clarify the issue with the Office of the Parliamentary Counsel and the Bills Office in the final proofing of the Bill.

I think there is cross-party support for the intention of the Bill. It is time-bound in the context of the review of Dáil constituencies and the other important work the commission has to get on with once it is established. If it is deemed or advised that amendment is required, we could bring that forward at a later date. The section in question will not be required until an election period. The next scheduled electoral period is 2024. With the support of the Deputy and the guidance of the Ceann Comhairle, I would like to proceed with the amendments.

The Minister of State is in a dilemma, just as we are, because he started out on a road that must be travelled.

I do not wish to delay the House further, but this is unacceptable. It is clear this a drafting phase of the Bill that went through as nobody looked at it because everybody is rushed. The Seanad did not have a chance to look at it and, like a significant number of other amendments, it will never be debated in either House. That is fundamentally making a mockery of our normal legislative process.

I agree with Deputy Howlin. The amendments that come before the House deserve to be analysed and the Minister should be probed on all the issues that arise from them. We have not been able to do that in the case of many Bills. The point made by the Deputy is correct. If we cannot do it, then who will after it passes through the Houses? The President has already complained about the number of Bills that arrive with him. He does not have time for them. We are elected to legislate. Passing legislation that we do not scrutinise properly is a reflection on us. There is then pressure on the President to do likewise. I appeal to whoever is making the decisions to give time for appropriate analysis of, and debate on, these Bills. It is essential to have good law. There is no point in passing a law that will be bad or poorly interpreted or, perhaps, used for an unintended purpose. I agree with Deputy Howlin.

There have been numerous Bills before the House in the past two weeks. Someone did an analysis and critique of them in the context of legislation passed by the House earlier in the term and what is before it now. We knew all along that the House would finish up in the second or third week of July. The way this is being done is rushed and distasteful. We are not doing our duty, quite simply. We are passing Bills with this number of amendments and then moving on to the next Bill. It is indecent haste. There is a clamour to just get the Bills passed and signed. Rushed legislation is often bad legislation. Deputy McGuinness is right. The President did comment on the number of Bills handed to him when the Dáil finished up before Christmas. Here we go again. Are we learning anything?

I would like to think that in my period in this Chair I have advocated the pursuit of best practice and continually trying to improve practice. It is disappointing when something like this happens but we must get on with it.

Seanad amendments Nos. 1 to 5, inclusive, 7, and 12 to 40, inclusive, are related and will be taken together.

Seanad amendment No. 1:
Title: In page 11, line 31, to delete “advertising;” and substitute the following:
“advertising; to provide for a regulatory framework to protect the integrity of elections and referendums against the dissemination or publication of online disinformation, online misinformation and manipulative or inauthentic behaviour online;”

I am pleased to have the opportunity to speak to the amendments that were approved in the Seanad during the course of the Bill's passage through the House. The first group of amendments assigns a monitoring and investigatory role to an coimisiún toghcháin in order that an coimisiún can protect the integrity of our electoral processes in the online sphere, in particular during electoral events. Members will appreciate that the online world now provides unprecedented opportunities unprecedented opportunities to spread false or misleading information very quickly and to create a false impression that a particular position has widespread support, thus giving it unwarranted credibility. Against this background and having regard to similar issues that arose during pre-legislative scrutiny of the Bill, when publishing the Electoral Reform Bill 2022 my colleague, the Minister, Deputy O’Brien, signalled that he had asked the Attorney General to prepare proposals and options for inclusion in the Bill with a specific focus on the protection of integrity of electoral processes that could include a role for an coimisiún in this regard. The new provisions in Part 5, which were published on 10 June, will place Ireland in a much better position to combat potential threats to the integrity of elections and referendums.

Seanad amendment No. 1 amends the Long Title to provide for the insertion of a new Part 5 in the Electoral Reform Bill 2022. In terms of consequential amendments, the insertion of a new Part 5 and the additional functions assigned to an coimisiún toghcháin to protect the integrity of our elections and referendums gives rise to a small number of consequential amendments to Part 2. Seanad amendments Nos. 2 to 5, inclusive, and No. 7 all relate to consequential amendments having regard to the insertion of the new Part 5.

I turn now to provisions in respect of the new Part 5 itself, which comprise amendments Nos. 12 to 40, inclusive. To better understand the principal threats to the integrity of elections and to perceptions of the integrity of how elections are conducted, a number of key concepts are set out in the new Part 5, specifically in section 142, on which I will now elaborate. Definitions of "disinformation", "misinformation" and "manipulative or inauthentic behaviour" are included in this Part. Following on from these broad concepts the provisions of the new Part 5 will provide an coimisiún with new monitoring and investigations functions with regard to the dissemination of disinformation relating to online electoral information and misinformation relating to online electoral processes, information as well as functions to prevent manipulative or inauthentic behaviours online. These are sections 143, 148, 157, 158 and 162.

Section 146 requires online platforms to report possible disinformation, misinformation or manipulative inauthentic behaviour in the online sphere to an coimisiún at the beginning of an electoral campaign period.

Section 147 requires online platforms to put in place a notification mechanism for users to report possible disinformation relating to online electoral information and misinformation relating to online electoral processes information.

Section 144 requires an advisory board to be established to provide advice to an coimisiún on the nature and effect of disinformation and misinformation and on the use by an coimisiún of its powers under Part 5.

Section 145 provides for the establishment of a stakeholder council to provide advice and opinions to an coimisiún generally and on the preparation and use of codes of conduct under Part 5.

Sections 151 to 155, inclusive, provide powers to an coimisiún in respect of its monitoring and investigatory functions.

Sections 159 and 160 also provide for an appeal mechanism against any notices or orders issued by an coimisiún.

Section 150 requires that an coimisiún will be required to consider the impacts of its actions on specified rights under the Constitution.

Section 161 provides that an coimisiún may publish codes of conduct that will be developed in consultation with the advisory board and stakeholder council. These codes of conduct may apply to online platforms, candidates at an election, political parties, third parties and other relevant persons.

Finally, section 163 provides for offences and penalties in respect of a failure to comply with any of the proposed notices under order or orders issued under Part 5; section 16 for making certain false statements regarding electoral period or an election campaign period; section 165 for using undisclosed bots to mislead or influence an election or referendum; and section 166 for a failure to comply with the obligations placed on online platforms.

Part 4 and the new Part 5 are required to be notified to the European Commission under EU Directive 2015/1535 laying down a procedure for the provision of information in the field of technical regulations and of rules of information society services, otherwise known as technical regulation information system, TRIS, notification process. Consultation periods are ongoing on Parts 4 and 5 under the TRIS process. This provides an opportunity for stakeholders and the European Commission to provide comments or observations on the relevant provisions in the Bill. Any comments or observations arising from consultation process can be considered in advance of the commencements of Parts 4 and 5.

In conclusion, the insertion of a new Part 5 and the additional functions it provides to an coimisiún toghcháin to protect our democracy against the spread of disinformation, misinformation and manipulative or inauthentic behaviour online will place Ireland in a much better position to combat the potential threats to the integrity of our elections and referendums in the future.

I wish to return to the general principle. It is more than 100 years since this Dáil was established. We will soon be celebrating the anniversary of De Valera's 1937 Constitution, Article 15.2.10 of which states: "The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State." This is not a case of the Oireachtas making laws for the State. There are amendments that have not been reached in the Seanad and are not going to be reached here. They have never once been discussed in this Oireachtas. The President is, of course, part of the Oireachtas. The President will have to scrutinise them but, according to the Constitution, he has 14 days to scrutinise every Bill that we are ramming through now, and he has to sign them. He does not have a discretion. He has either to sign them or send them to the Supreme Court. Lots of people will protest that he signs this, that or the other. He or she, whoever the President is, has to sign the Bill. This is not the Oireachtas making laws. It is not what we were elected to do.

This point has been raised and the Ceann Comhairle has expressed his sympathies with the Minister. The Minister is a fundamentally decent man from a fundamentally decent party but does it ever occur to Ministers to say “No”, this is not how we do our business”, or "I will not be led by the nose around the place by my Civil Service and there is a point at which I say 'No'?" That is what it is; what is happening here is patently obvious to anybody. I do not wish to sound anti-Civil Service but we have to have a democratic Government that controls the Civil Service, which implements its programme and its legislative agenda and does so at its behest, not a Government that is elected and Ministers go into a Department and says, “What do I have to sign now? What do I have to do now? Where do I have to go now? Oh God maybe they will not like the fact that we cannot discuss this Bill. Well sure, if they do not, too bad.”

I remember once when Deputy Howlin was a Minister I thought it was bad – and it was bad – Bills were guillotined. It was very rare though. In one instance I tabled an amendment and the civil servant smiled and said “We are not going to reach your amendment, are we because we are going to guillotine the Bill?” The best of luck to him, a much cleverer man than I, a far more knowledgeable man, maybe a man much better versed in the Constitution, but he did not have a mandate; I did. That is what democracy is supposed to be about. My constituents could get rid of me; indeed they did and they will again some day, I have no doubt about that. It is a matter of when; that is the same for all of us. However, you cannot get rid of the civil servant sitting beside you. That is not a democracy. It is a democracy when if you do not like what is happening, you can change it. We seem impervious to change. It does not matter whether it is the Green Party, Fianna Fáil, Fine Gael and the best of luck to Sinn Féin when it gets into power. It is not going to change much, unless it changes how we do our business and the Ministers and Secretaries Act, 1924, which was the result of a War of Independence which was what it was all about, is addressed.

Boris Johnson is an abomination but at least he implemented his programme. At least it is a democracy over there and they are getting rid of him, but we cannot get rid of our permanent government here because nobody takes control of anything. It is just, “Where is the latest photo opportunity?” I am asking the Minister of State a question. I have no doubt about his commitment to democracy or to the ideals on which he was elected. At what point does it become unacceptable to bring a Bill through two Houses and give neither House time to discuss many of its provisions? How is that democratic? How does he think that is acceptable?

Before we get into the minutiae of the Bill, although we will not get into the minutiae, can the Minister of State answer that overarching question? It is not just this Bill. There is another Bill coming through in a couple of minutes and it is the same conveyor belt process.

How we do our business is the Government is elected to govern and to be held accountable. At the previous election, I noted there were some Ministers giving out about civil servants and that they could not implement their programme. It is the job of the senior Minister and junior Ministers to manage the Department. This is not a Minister managing a Department but a Department managing a Minister. I am sorry. This is not personal and it has nothing to do with the Minister of State. This is simply unacceptable and undemocratic. It is not what the State and Constitution are about. When this legislation goes to the courts, as it will given that it is a complete mess, deference will be given. What the Oireachtas, in its wisdom, is doing is failing to even consider the Bill. It might as well be toilet paper but the courts will give deference to what the Oireachtas does here. I am sorry but I will not vote any further on this Bill. It is a sham, not because I disagree with what the Minister of State wants to achieve but because how he is doing it is wrong.

I look forward to the questions that I have raised being answered.

I assure the Deputy that we will come back to the Minister of State.

In speaking to this group of amendments, it not only confirms the concerns of the Deputies who spoke earlier but demonstrates how much worse it is than that. This was meant to be really important legislation. We have spent in committee a considerable amount of time working on a cross-party basis, probably more so than on any other legislation we have dealt with in this Oireachtas, to ensure the Electoral Reform Bill and the important and long-overdue provisions would secure cross-party support and, therefore, public support because it makes a series of major changes to the electoral system. We spent an awful lot of time on the impact of digital social media and online social media on the electoral process, not only in terms of threats but also opportunities, such as the democratising nature of social media when it is properly managed and access of first-time candidates and smaller parties to more flexible forms of promotion of their agendas, candidacies, etc. In fact, all of us expressed the strong view at the committee that the provisions of the Bill, as initially proposed, with respect to online media regulation during elections was too weak. We received significant and positive advice from some of the country's and Europe's leading experts on these matters. We are now in a position where something we really wanted is being presented to us in detailed technical form and neither this House or the other House had a chance to discuss it.

I am less concerned about the discussion. I completely agree with Deputy McNamara that we will not even have time to properly scrutinise and seek expert advice - legal, technological and advocacy advice - to ensure that what is in this text will do what we and the Minister of State would like this legislation to do. The reason this is so concerning is that the expert, the leading advocates and monitors of these kinds of technologies, told us that these technologies are accelerating at such a pace that even if what is in the Bill is okay, and I am not even sure it is, technology will have moved on dramatically. The experts and some of the country's most eminent political scientists who specialise in Irish and global elections recommended that some of these matters should be functions of the electoral commission to ensure that what it is recommending to Government is based on the most up-to-date evidence and best practice from across the world.

I will highlight a few concerns with the amendments as presented. The difficulty is that the moment I start raising questions someone who might be mischievous - not anybody in this room - might say that I am not in favour of regulating online social media platforms, tackling disinformation and ensuring the integrity of the democratic process. It is quite the opposite; we argued that we needed those measures in the Bill. However, for example, the definition section refers to "manipulative or inauthentic behaviour". Many members of the public may say this is not a phenomenon that is limited solely to online political activity. In fact, they might say it has been the bread and butter of certain types of politics since Greco-Roman times, but the definitions are incredibly general and brief and, therefore, open to wide interpretation.

I am a strong critic of micro-targeting, particularly when it happens without the consent of the person whose data have been mined to target. However, to give an example, in non-digital media there are forms of micro-targeting. We take advertisements in specialist magazines because we know certain types of people read them. On Facebook, for example, many first-time candidates and small-party candidates will use some of the boosting functions, which are open and transparent. That is a form of micro-targeting. That is not what anybody is concerned about in terms of the impact on the integrity of the electoral system. We are concerned about the Cambridge Analytica type of activity that we saw, for example, in the Brexit referendum.

Then there is "misinformation". If I read this correctly, the definition states it "means any false or misleading online electoral process information that may cause public harm..." Then there is a definition of process information, which is actually just information about the electoral process, registration, voting, candidates, etc., as opposed to wider meanings. We have not been given time to consider whether these are the right definitions. If they are not, everything else that flows from them is deeply problematic.

On the definition of "online platform", I do not understand why we are setting the bar so high in terms of applying this to online platforms of at least 100,000 unique monthly users. We know of the big platforms but we also know increasingly there are sub-platforms, small platforms or websites that may not fall within the scope of that. Are we saying, for example, that it will be wrong to engage in manipulative or inauthentic behaviour through various forms of micro-targeting and online electoral processing information but that will only apply to platforms that meet the high threshold set down in the criteria and I am free to go off and do that on my own website or through some other mechanism? That seems to be what is provided for.

The definition of "public harm", the foundation of this section, "means any serious threat to the fairness or integrity of an election or referendum". These definitions are so broad that it is hard to understand who will get to decide. Deputy McNamara is correct that this legislation will end up in the courts and some judge will have to decide. If we are being asked to simply rubber-stamp this at such short notice and without adequate scrutiny or adequate expert advice from people far more qualified than us to give us a sense of this, that is a problem.

I am all in favour of the intention behind this set of amendments. I am deeply troubled not only that the Bill is being rushed through the House but about its drafting. I mean no disrespect to the officials. I say this at this point every year and I have a slightly different take on it than Deputy McNamara. The officials are put under an enormous amount of strain by Ministers who want to be seen to get things done and demand the churning out of legislation so that they can get the photo opportunity, as Deputy McNamara said, with the Bill they have passed. I have enormous sympathy for the officials and staff in the Bills Office who have to deal with all of this stuff. I am saying that honestly. However, if all of that pressure is being place on the officials and legislation does not go through the various screening processes, we could approve something here that, in and of itself, could undermine the integrity of the electoral process. That is a profound worry.

These amendments should be withdrawn given how cross-party and collegiate Members have been. We have been having fights, not only yesterday in this Chamber but also in the committee on all sorts of issues, but we were pretty much at one on this Bill. These amendments should have been brought back to the committee. There is no reason an amending Bill could not be introduced later in the year to go through proper pre-legislative scrutiny and proper scrutiny on Committee Stage with an opportunity for amendment. We could then agree an electoral amendment Bill that everybody is happy with. We had an unholy row at the end of the Dáil stage on amendments the Minister of State did not draft and probably did not even want to see on the floor of the Dáil, and which should not have been in this Bill. Here we are again souring the end of an important and predominantly positive piece of Oireachtas work with this set of amendments. I do not want to oppose the amendments because I support the intention behind them but I am not convinced they are right. Therefore, a withdrawal at this point is the correct course of action for the Government.

I very much agree with Deputy Ó Broin. Withdrawal is the responsible thing to do here. It is worth saying that these issues were discussed at the committee. Legislation to address these issues around online political activity was sought but to bring these amendments in now without any level of scrutiny, given the seriousness of the issues and the requirement that they be scrutinised, is the wrong approach. They should be withdrawn and draft amendments should go to the committee to be scrutinised. We should also be able to get expert advice on this.

What is being attempted here needs to be done.

Nothing like this has ever been done before in Ireland, certainly in terms of trying to regulate online electoral and political activity. Having clarity around the processes and the terminology is very important. Many of these definitions on misinformation, disinformation and so forth, and the very strong powers that are to be given to the electoral commission, rest on the definition of “public harm”. The legislation defines “public harm” as meaning any serious threat to the fairness or integrity of an election or referendum. Given that the Minister of State, Deputies Ó Broin and Howlin and I will all have different ideas on what “fairness” could be, how the electoral commission decides what is fair and is not fair needs a lot of scrutiny. That is a huge power being given to the commission that gives it the power to take decisions and issue takedown notices and everything else that can and will affect the outcome of elections. It is a very serious responsibility that it is being given. For us not to have clarity around that definition, not to have that properly scrutinised, not to know what are the safeguards that are being built into these powers that are been given to the commission, or not to know what level of accountability is being put on this is not acceptable. To hand all of those powers to the commission and not to know what the thinking is behind that, to me, is deeply problematic.

I hope the Minister of State can give us information on that now. The thing to do would be to withdraw these amendments and let them be scrutinised properly, so all of us, across the political system, can be happy with these amendments and can support them, as has been done to date with the parts of the Electoral Reform Bill that were brought through the committee process.

I am at a disadvantage to other Members here because I did not deal with this Bill, which my colleague did, and I am not a member of the committee. I was asked to look at these matters because my colleague has Covid. I am deeply concerned. I know the Ceann Comhairle is an advocate for the proper working of these Houses. The previous Dáil, perversely, because it was a minority Government, ensured there was no guillotining of Bills because the Government did not have a majority to do it. Everything was scrutinised and everything was the better for it. It was frustrating for Ministers occasionally, I have no doubt, and I have been on that side of the House too. However, the notion that fundamental law is created without proper scrutiny is a disaster.

I echo Deputy Ó Broin’s suggestion that the new amendments that had not been looked at in the Seanad should be withdrawn now. We can pass the Bill with any amendments that are needed that are of a technical nature and then come back in the next session with a short amending Bill, with proper time for pre-legislative scrutiny and with proper committee debate and input from the experts in regard to it.

I go back to the point I made. There are aspects of this Bill where, if we enact it, it will not be what the Government intends it to be. My colleague wrote a letter to the Minister of State on 6 July in regard to this Bill and the Minister of State has not replied yet. In that letter, he legally sets out the Minister of State's stated intent and why that is not the actual wording of the Bill, and where the Minister of State briefed a journalist to say that is the intent of it, but that is not the actual impact of it. It is clear that we need a better go at this than is being afforded in this Bill.

I am very conscious that this is fundamental to the working of our democracy. It is our electoral system. We have been talking about an electoral commission for a generation, in truth, and it is very good that the Minister of State has got to this point and has built such a political consensus on it. I commend the Minister of State and his officials on that. However, he should not upset that consensus now for the sake of giving us the additional time. We need to have the commission established and we can do all of that by passing this Bill now, but I ask the Minister of State to withdraw the amendments that are contentious and bring them back in a short amending Bill in the new session. In that way, we can all be content that the electoral law, upon which our very democracy is based, is secure and we can buy in on a cross-party basis, which I know and believe is the Minister of State's objective.

Points were made specifically in regard to this important part of the Bill. I closely followed the deliberations of the Oireachtas joint committee, where it was widely debated. I commend the committee on its deliberations at pre-legislative scrutiny stage. These were concerns that were raised in pre-legislative scrutiny, as Deputy Ó Broin mentioned. They are fundamental citizens’ rights and fundamental to the robustness of our democracy and, from that point of view, they are very important to us. I appreciate the comments made by Deputy Howlin in regard to the collegiate nature of bringing the Bill to this stage. I want to reassure the Deputies that the Attorney General has been central to the drafting of these amendments.

The definition of an online platform is consistent with the definition in Part 4 of the Bill. Specific questions were raised by Deputy Ó Broin in regard to definitions. First, “disinformation” is defined in the new Part 5 to refer to false or misleading content that is spread with the intention to deceive and which may cause public harm. Second, “misinformation” is broadly taken to mean false or misleading content shared without harmful intent, though the effects may still be harmful. Finally, a broad principled approach is taken with regard to the meaning of “manipulative or inauthentic behaviour”, given this type of behaviour is ever-evolving, as Deputy Ó Broin said. In this regard, “manipulative or inauthentic behaviour” means tactics, techniques and procedures that constitute a deceptive use of services or features provided by an online platform, including user conduct, having the object of artificially amplifying the reach or perceived public support of particular content; are likely to influence the information visible to other users of the platform; by reason of their nature, character, context or any other relevant circumstance give rise to the inference that they are intended to result in the dissemination, publication or increased circulation of false or misleading online electoral information; and may cause public harm. I hope that is some clarification of the question the Deputy has asked.

Even the Ceann Comhairle is confused by that.

The broader issue around citizens’ rights is important in the context of recent experiences across the world and we all have plenty of examples of it. This demonstrates that many of the most pressing threats to the integrity of our democracy and electoral processes are based on harmful techniques for distorting or manipulating public expression. In that context, it is important to note that the State has obligations, under both the Constitution and the European Convention on Human Rights, to support and protect each citizen's right to become informed about their democracy in a free and unfettered manner and the right of both citizens and representatives to participate in robust political debate under a fair and equal process. In this regard, the new provisions explicitly require the electoral commission, in considering the exercise of its powers under this part, section 150, to consider and give due weight to the right to freedom of expression, the right to freedom of association, the right to participate in public affairs and the obligation of the State to defend and secure the fairness and integrity of elections and referendums. It will be essential that any actions proposed by the electoral commission under this part will pass a proportionality test which will require assessment of a number of key factors, including the nature of the conduct being targeted and the extent to which it threatens election integrity to ensure that such actions are necessary and compatible with our rights under the Constitution and the European Convention on Human Rights.

I reiterate the point on the establishment of the commission’s research and advisory functions. On that point the Deputy makes about emerging technologies and how this space is changing rapidly, that research and advisory function in the commission is critical to advising and changing how this all evolves. I had a meeting with Technology Ireland in regard to its issues around it and assurances have been given in that regard.

It is important, taking on board the points made by all the Deputies, to acknowledge our appreciation for the goodwill that was generated around the development of this Bill. A huge amount of work has gone into it and this particular issue is an important and integral part of it. It has been devised, as I said, in view of concerns raised by Deputies and Senators at pre-legislative scrutiny and it is an important aspect of the Bill. The situation is evolving for us all and we probably are into new territory in terms of how we deal with these issues in Ireland. This country can become a leader in supporting the robustness of our democratic processes. I respect Deputies' views but it is important that we get the Bill passed.

I am still unclear as to how the decision was made to guillotine the Bill. Did the Minister of State ask the Government Chief Whip to allocate 45 minutes for the debate and say to himself we all can shove it after that? Did his officials suggest this would be a good approach and he went along with it, or did he lead the approach? Did the Chief Whip agree that this wonderful and novel legislation is going to turn us into a shining light of democracy across the Council of Europe area, as the Minister of State just described, or did he think it a load of codswallop and decide to give only 45 minutes of Dáil time to it? I want to know how we arrived at a situation whereby we are going to pass this Bill into law and ask the courts to give deference to this House in having passed the law without anybody here or in the other House having had time to scrutinise it. We are all expected to vote for this Bill and then we will have no choice because it will be law and everybody has to follow the law. The courts, as I said, are expected to give deference to the House in this regard. Before that vote takes place, it is important to know how we arrived at the situation whereby this length of time was allocated for the debate and amendments are being put through that have not been discussed in the Seanad and will not be discussed here. It is important for the sake of democracy, which this Bill is designed to protect, that the Minister of State outline how this came about.

The Minister of State will have to do so in 37 seconds.

There has been significant debate on all Stages of the Bill.

Not on these amendments.

We have not debated these amendments.

I want to put on the record that we will be back here at some point to deal with amending legislation. This Bill is going to end up in the courts. It is almost like a mirror image of the substitute consent legislation we will deal with shortly, the first version of which was not right and was rushed through at the end. That legislation was subject to significant legal challenge, which forced the Government to bring forward amending legislation. In the case of this Bill, we could do it the right way by way of amending legislation we all support.

The time is up, Deputy.

One way or another, the Bill is coming back to us. It is a shame it is being done in this manner.

The time permitted for this debate having expired, I am required to put the following question in accordance with an order of the Dáil of 12 July 2022: "That the amendment set down to Seanad amendment No. 50 is hereby negatived, the Seanad amendments not disposed of are hereby agreed to in Committee and agreement to the amendments is accordingly reported to the House." Is that agreed?

Deputies

No. Vótáil.

Question put:
The Dáil divided: Tá, 79; Níl, 61; Staon, 0.

  • Berry, Cathal.
  • Brophy, Colm.
  • Browne, James.
  • Bruton, Richard.
  • Burke, Colm.
  • Burke, Peter.
  • Butler, Mary.
  • Byrne, Thomas.
  • Cahill, Jackie.
  • Calleary, Dara.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Carroll MacNeill, Jennifer.
  • Chambers, Jack.
  • Collins, Niall.
  • Coveney, Simon.
  • Cowen, Barry.
  • Creed, Michael.
  • Crowe, Cathal.
  • Devlin, Cormac.
  • Dillon, Alan.
  • Donnelly, Stephen.
  • Donohoe, Paschal.
  • Duffy, Francis Noel.
  • English, Damien.
  • Feighan, Frankie.
  • Flaherty, Joe.
  • Flanagan, Charles.
  • Fleming, Sean.
  • Foley, Norma.
  • Griffin, Brendan.
  • Harris, Simon.
  • Haughey, Seán.
  • Heydon, Martin.
  • Higgins, Emer.
  • Humphreys, Heather.
  • Kehoe, Paul.
  • Lahart, John.
  • Lawless, James.
  • Leddin, Brian.
  • Madigan, Josepha.
  • Martin, Catherine.
  • Martin, Micheál.
  • Matthews, Steven.
  • McConalogue, Charlie.
  • McEntee, Helen.
  • McGrath, Michael.
  • McGuinness, John.
  • McHugh, Joe.
  • Moynihan, Aindrias.
  • Moynihan, Michael.
  • Murnane O'Connor, Jennifer.
  • Naughton, Hildegarde.
  • Noonan, Malcolm.
  • O'Brien, Darragh.
  • O'Brien, Joe.
  • O'Callaghan, Jim.
  • O'Connor, James.
  • O'Dea, Willie.
  • O'Donnell, Kieran.
  • O'Donovan, Patrick.
  • O'Dowd, Fergus.
  • O'Gorman, Roderic.
  • O'Sullivan, Christopher.
  • O'Sullivan, Pádraig.
  • Ó Cathasaigh, Marc.
  • Ó Cuív, Éamon.
  • Phelan, John Paul.
  • Rabbitte, Anne.
  • Richmond, Neale.
  • Ring, Michael.
  • Ryan, Eamon.
  • Shanahan, Matt.
  • Smith, Brendan.
  • Smyth, Niamh.
  • Smyth, Ossian.
  • Stanton, David.
  • Troy, Robert.
  • Varadkar, Leo.

Níl

  • Andrews, Chris.
  • Bacik, Ivana.
  • Boyd Barrett, Richard.
  • Brady, John.
  • Browne, Martin.
  • Buckley, Pat.
  • Cairns, Holly.
  • Canney, Seán.
  • Carthy, Matt.
  • Clarke, Sorca.
  • Collins, Joan.
  • Collins, Michael.
  • Conway-Walsh, Rose.
  • Cronin, Réada.
  • Crowe, Seán.
  • Cullinane, David.
  • Daly, Pa.
  • Doherty, Pearse.
  • Donnelly, Paul.
  • Ellis, Dessie.
  • Farrell, Mairéad.
  • Fitzmaurice, Michael.
  • Funchion, Kathleen.
  • Gannon, Gary.
  • Gould, Thomas.
  • Guirke, Johnny.
  • Harkin, Marian.
  • Healy-Rae, Danny.
  • Healy-Rae, Michael.
  • Howlin, Brendan.
  • Kelly, Alan.
  • Kenny, Martin.
  • Kerrane, Claire.
  • Mac Lochlainn, Pádraig.
  • McGrath, Mattie.
  • McNamara, Michael.
  • Mitchell, Denise.
  • Murphy, Catherine.
  • Murphy, Paul.
  • Murphy, Verona.
  • Mythen, Johnny.
  • Nolan, Carol.
  • O'Callaghan, Cian.
  • O'Donoghue, Richard.
  • O'Reilly, Louise.
  • O'Rourke, Darren.
  • Ó Broin, Eoin.
  • Ó Laoghaire, Donnchadh.
  • Ó Murchú, Ruairí.
  • Ó Snodaigh, Aengus.
  • Pringle, Thomas.
  • Quinlivan, Maurice.
  • Ryan, Patricia.
  • Shortall, Róisín.
  • Smith, Bríd.
  • Smith, Duncan.
  • Stanley, Brian.
  • Tóibín, Peadar.
  • Tully, Pauline.
  • Ward, Mark.
  • Whitmore, Jennifer.

Staon

Tellers: Tá, Deputies Jack Chambers and Brendan Griffin; Níl, Deputies Eoin Ó Broin and Cian O'Callaghan.
Question declared carried.
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