On section 1, the definition section, there is a definition of the postal voters list with reference to the Electoral Act of 1963. On Second Stage Senator McDonald and myself raised the question of the possibility of postal rights for Irish citizens in another member state. Senator McDonald mentioned the large number of Irish citizens working in Brussels and Luxembourg. We were anxious to know whether the Minister would consider giving postal rights to these citizens to vote in the elections to the European Parliament. It is my understanding that other member states, such as France and Denmark and, perhaps, others, have extended these rights to their nationals in other member states or elsewhere.
European Assembly Elections (No. 2) Bill, 1977: Committee and Final Stages.
The postal vote is confined to members of the Army and the Garda and this is the same as in Dáil elections. We did have postal votes for local elections a few years ago and it was not a very successful operation. The whole question of postal votes will be considered in the next year or two. We are having a general examination of all the electoral Acts existing at the moment in an effort to improve on what we have. This matter will be considered again but not for this election, just the Army and Garda.
I am disappointed with the Minister's reply because the point I made yesterday, and which Senator Robinson has made, is a very special one. We have working for the Community in the institutions situated in Brussels and Luxembourg a relatively small number of very high-powered Irish citizens, in the main former civil servants and their wives. It is unfortunate that these people, who are responsible citizens and who can easily be classified or listed because they work for the institutions of the Community, should be denied the right to vote for members being directly elected to the European Assembly. It is not a big job. I am not suggesting to the Minister that all Irish people living abroad should be entitled to vote, because if one takes the situation in the United Kingdom then the job would indeed be difficult. I am asking that people who are seconded to Europe, who in the main are civil servants, be entitled to be registered for postal votes in their own constituencies without having to comply with the residency qualification of 15th September which is necessary in the normal way.
I do not see, by virtue of the fact that the numbers are very small, that it would present an insurmountable task to the Department. I should imagine that there are fewer than 1,000 people involved. They need to keep close ties with home and, from my experience of making representations or going to see people in the Commission or the other institutions, it is important that they should have the closest possible ties with this country. They are in positions which can have great benefit to the people who applied for aid whether it is for FEOGA grants or whatever kind of scheme they are working for. The Minister should seriously consider the situation because it does not present a big problem. I submit that the European election is a new field and the intention, as I see it, is that there should be a unified system for the second elections, due five years after the first election. We should at least have made some kind of provision now for breaking new ground.
It would be difficult to justify giving a postal vote to the people the Senator refers to and at the same time exclude hundreds of thousands of Irish people living abroad. I do not see any justification for being selective just because people happen to be working in Brussels.
People are seconded.
There are people who are employed directly as well as those who are seconded. Why should we be selective for a few and exclude the others? I should also like to add that my predecessor, and the previous Government, considered this point and they also refused. I am not alone in this.
I wanted to raise a point which was passed over. It was mentioned by Senator McDonald, but he was suggesting that it was too difficult to deal with. It seems to me, in relation to numbers of people, to be much more important. It is a question of information which might require a liaison between the United Kingdom and ourselves. I do not claim expertise on this, but in regard to Irish citizens —I do not mean the descendants of Irish citizens—resident in the UK I understand that they are permitted to vote in local and in Westminster national elections. They are indeed numerous by standards of the total population of Ireland. If the British extend the same right to them in Community elections that they possess in Westminster elections, then they will be exercising a vote and I would not claim that any such arrangements should be made. However, if the British are not doing so they would be disenfranchised in circumstances where we retain the power, if we choose to use it, to enfranchise them via a postal vote system. That is something that should be looked into. We have a little time. It is in yesterday's paper and again in to-day's paper. Obviously the time scale of the elections is going to be a little later than we thought. We have time to check as to whether they will be enfranchised in Britain and, if the British are not doing it, we have the power in this Bill to do so, and I should like preliminary comments from the Minister on that question.
The British are allowing them to vote in the Assembly election.
I have a query. On section 3 with regard to the preparation of the register, I am not quite clear as to what the procedure will be. Perhaps the Minister can enlighten me. As I understand it, the present situation with the register for Dáil elections is that there are two classes of people registered. There are the ordinary electors who can vote in both a general election and a local election and then there are people who have an "L" put against their name, who are not citizens of Ireland, who can only vote in local elections and not in a general election. Obviously this will not do for this purpose because we will have to distinguish between, say, a Swiss citizen and a German citizen. The German can vote in the direct election and the Swiss cannot. I take it you have to have three categories: Irish citizens who can vote in all elections, citizens of other member states who can vote in direct elections and local elections but not Dáil elections, and citizens of third countries who can vote in local elections only. I presume this is the way it will have to be done. One gathers the preliminary version of the register has already been circulated in the ordinary way. I was just wondering could the Minister tell us what procedure will be adopted to amend this register.
And perhaps he could tell us what mark will be put in front of the names of the people concerned.
It is intended that "LE" should appear after the names, or in front of the names. There are 12,000 people with "L" on the register at the moment. Most of these are nationals of the member countries but, in order to distinguish them from people who are not nationals of member countries, they will be defined as "LE". The register is not complete yet of course. It is only the draft register at present, as of 15th December. It will not be completed until February. It is intended to have the register in order for the European elections.
On the mechanics of nomination, it is quite clear that a person may nominate himself and if a person seeks to be nominated by another person, does the section mean that only one proposer may nominate a candidate and that if the candidate does not seem to nominate himself he can be nominated then by one proposer only, or can he have a list of proposers?
One proposer will be sufficient but, if he wants to have more than one proposer, there is nothing to stop him having him.
On the same nomination paper, or will it be on separate nomination papers?
Separate nomination papers.
This section concerns the size of the deposit. This matter was raised on Second Stage by a number of Senators. I should like to ask the Minister why the figure of £1,000 was fixed. I know this was in the original Bill and has been carried on by this Bill. It does seem to be high, and to be unnecessarily high as a deterrent. I am in favour of this type of protection against frivolous or irresponsible candidates. I would prefer this way of doing it than something which required nomination only by the political parties or by some other limited mechanism. I wonder whether a deposit of £500 would not be an effective deterrent to ensure that only serious candidates offer themselves.
I presume £500 would only be half as effective as £1,000. However, the intention is to discourage frivolous candidates. A deposit must be substantial if it is to be effective and, very roughly, each Assembly member will represent about ten times a as many people as a Dáil Deputy represents, and a figure of ten times a Dáil deposit is £1,000. It is £100 in Dáil elections. Of course, the deposit will be refunded to any candiate who gets more than one-third of the quota. It will also be refunded if the candidate withdraws, is elected, or dies before the poll is closed. In the UK a deposit of £500 is proposed while at parliamentary elections it is £150. The figure of £1,000 is possibly the most effective figure.
Why are we concerned to have a deposit which is twice as high as the deposit in the United Kingdom? The danger is that this may, in fact, deter somebody who has not got substantial means and this would be undesirable. I do not think it is the Minister's intention to do this but, if a figure of £500 is thought adequate in the British context, why are we making it a figure of £1,000? It should be clear to the electorate that it is not the intention to confine the possibility of candidates standing to members of political parties and that there should be an encouragement to other people. Part of the object of direct elections is to encourage general public interest and that includes not just the interest of voters but the interest of those who feel that they could be representative of one of the four constituencies.
Might I say in reply to Senator Robinson, if you have not got £1,000 to campaign for the Seanad, you cannot come into this House. So I would suggest to Senator Robinson you have not much business trying to get into Europe if you have not got £1,000 to put down.
With respect, we are not dealing with campaign funds now. We are dealing with the matter of the deposit.
In fact, £1,000 is no way excessive. A better way of dealing with the English situation would be to ask why are they fixing a figure which is half ours rather than asking why are we fixing one double theirs. We are entitled to our view and they are entitled to theirs. The Minister will probably agree with me when I say the deposit originally fixed for the Dáil was about equivalent to this, because it was fixed in 1922 at £100 and £100 in 1922 is not far off £1,000 now. What has happened is that the Dáil deposit in real terms has been growing lower and lower and we have seen in recent by-elections that it is no longer a deterrent. People are standing now for election and putting down their £100 just for the free publicity they can get on television programmes and so on. It is no longer in any sense a deterrent. It is not very nice to make a comparison between the £1,000 and the Dáil deposit. We have to think of the £1,000 in itself. In an election in constituencies of this size the smallest of which has a population of some 600,000, anyone who cannot put up a deposit of £1,000 has no business in the race at all.
The Minister said he is looking at electoral laws generally. I should like to echo the point Senator Yeats made about the size of the deposit in the context of by-elections. In a substantial number of recent by-elections, candidates have appeared on the scene and it was quite clear that they appeared for the publicity they could buy for £100. That should be avoided.
We will certainly be having a look at the deposit and many other factors in the general electoral law in the fairly near future. I agree with Senator Cooney that £100 is a ridiculous deposit because there are frivolous candidates. We had one instance in my own constituency in the last election where one newspaper published something to the effect that there would be no election in Clare and the following day we had a gentleman from another county arriving with £100 to ensure that there would be an election.
From my county actually.
He did not come back, but he was prepared to lose £100. However, we will be having a look at that in the fairly near future in a reexamination of all the electoral law. With regard to the deposit of £1,000 here and £500 in Britain, this Bill was published before the British published theirs, and I do not believe we should just do what the British do.
On section 11, can I take it that the First Schedule incorporates all the rules for the conduct of elections culled from all the Electoral Acts and consolidated in the Schedule?
That is correct—from the electoral law as it stands.
Could the Minister indicate how he arrived at the figure of a 12-yearly revision?
Yes. We amended the Bill in the Dáil to ensure a 12-yearly revision. I presume arrangements will be made when the Assembly convenes and it will decide when revisions will take place, but 12 years is the maximum.
In theory, though I am afraid not in practice, this will be the only election conducted under these provisions because, in theory, the second and successive elections will be conducted on a common electoral basis. I should like to think it will work out that way but, knowing the way time limits are ignored in the Communities, one has one's doubts; at least in theory there will be no 12-yearly revision. It will be a different system of elections.
Section 14 deals with returning officers and local returning officers. It provides that the Minister determines any doubts arising as to the duties of a local returning officer and I presume also of the returning officer. There is no power—and I wonder if the Minister will tell us if there is any need for any general power—for these people to act through authorised officers. Is the chain of authority sufficiently preserved by giving the Minister power to resolve the duties of a returning officer?
There is provision to appoint a deputy if the returning officer thinks he is required.
To appoint a deputy what?
A deputy local returning officer.
He can appoint as many deputies as he wishes?
For example, the constituency returning officer would presumably be from one of the Dáil constituencies, within the Assembly constituency. He can appoint a deputy returning officer if he feels his workload is too great for him to look after his own area.
Is the Bill providing for the specific appointment of presiding officers in the individual booths?
Yes. We come to that in the schedule.
This section deals with casual vacancies which is a novel feature of the Bill. It is the appropriate way of dealing with the question of vacancies occurring rather than to have a by-election. For the reasons given on Second Reading. However, there are a number of questions I should like to ask the Minister about the filling of casual vacancies. The first relates to the situation where the person was a candidate of a political party and is no longer a member of the European Parliament and there is to be a casual vacancy from that person's party. It does not seem to me that the section requires that the person has been a candidate in the same constituency. Is it the intention that the person should be a candidate in the same constituency of the political party of the person for whom the vacancy occurred? That is the first question.
It is not clear to me what the position is if the member of the European Parliament was not a member of a recognised political party. For example, if the person was a farmers' candidate, if it happened that the IFA, for example, or the farming organisations had put forward a candidate and that person died, and it was a question of replacing him, would it be necessary for the Dáil in filling the casual vacancy, to fill it with a representative of the farming organisations if that was the wish of the electorate? Or would this fall back into the catchment of the Dáil and, therefore, presumably of the majority party at the time? Is there any restriction on who would be the person to fill that casual vacancy?
It is intended that—call it a by-election if you like—any such vacancy will be filled from the party which originally won the seat. Even though the person may have died or changed parties once or twice in the intervening period, it will be the original party who will fill the vacancy. With regard to a non-party candidate, I suppose it is safe to assume than anybody who will be capable of winning a seat will have the backing of a party. It is probable that is the way it will be, but it will be at the discretion of the Dáil to fill a vacancy in that event. I am sure the Dáil will take note of the fact that the person represented an organisation and was capable of getting elected.
There was a second part to my first question. I am aware that the casual vacancy would be filled from the same political party as the person who had been elected and died let us say, but what I am asking is whether the political party would be required to choose a candidate who had stood in the same constituency or was from the same regional constituency.
No, not necessarily a candidate who stood in the same constituency.
I accept that at the moment the delegate from the Oireachtas fulfils a delegate function, but it seems to me that, if we are having regional constituencies and a direct election, and the people living in one of the regional constituencies elected somebody to represent them— let us stay the Connacht-Ulster Constituency elected somebody who had very strong roots in that area, who understood the pre-occupations and priorities, and let us say it was a Fianna Fáil representative in Connacht-Ulster who died—and then the Fianna Fáil Party decided they wanted to give experience to a Dublin based Fianna Fáil person, surely this would not represent the needs and desires of the regional constituency? Would it not be preferable in the text of the Bill to insert a requirement that the casual vacancy be filled not only by a person from the political party and grouping —and I can see the considerations that would weigh in favour of that—but also somebody from a particular regional constituency.
I really do not think Senator Robinson need worry. I cannot conceive of any political party who had lost a member of the European Parliament from Connacht-Ulster putting up somebody from Dublin. That would be the easiest way to create a revolution in the ranks. I just cannot see anybody doing it. So, it seems pointless to try to enshrine it in law.
In any event, even if you did, you would still have problems. Take Connacht-Ulster: suppose the person who died came from the Ulster section, from Cavan or perhaps Donegal, and someone from Clare is put up instead. Obviously he would have local problems to contend with. I really cannot see any political party getting embroiled in that kind of problem.
I would have hoped the Minister would look at the electoral laws in either Holland or Denmark. They have a kind of list system. In Denmark they have a system ofsuppliants, or temporary stand-ins I suppose you could call them. For by-election purposes they fill the vacancies with the runner-up of the party under the list system. Since we are going into a European-type election and since it is hoped we will have a unified system for the second election, should we not start on a semi-list system by writing into the Bill that any casual vacancy should be filled by the runner-up of the party whose member ceases to be, for one reason or another, a member of the Assembly of the European Communities.
There might not be a runner-up.
What was suggested by Senator McDonald was considered before this Government took office and again by us. We were unanimous in rejecting it. We think this is a fairer system for this session of the Assembly, whatever the Assembly will decide in the future. Senator Robinson's concern about somebody outside the constituency representing the constituency, should not be a matter for concern. Many people outside constituencies have represented them for many years, including my own. The founder of our own party never lived there. That did not militate against the constituency. I do not think it is something to be too concerned about and it is unlikely to happen very frequently.
Another query. The section provides that the vacancy is to be filled by the party to which the deceased member belonged at the time of his election, and not necessarily the party to which he belonged at the time the vacancy occurred. If that party are still registered, then that party can claim the vacancy. I wonder is there any possibility of a situation arising where that party might have amalgamated with another party or changed their name. What would be the position then? Which party would be entitled to fill the vacancy? Would it be the same party under their new name or is there any need for provision for that? If it was an amalgamation between two parties, would the new amalgamated party be entitled to the vacancy, or would it go by default to the Oireachtas generally?
No, there is no provision for that. It does not happen too often.
If for example, Fianna Fáil changed their name to the Irish Progressive Democrats and a vacancy occurred in their ranks, would we then have the right to fill the vacancy?
That will hardly happen.
Could I ask the Minister to enumerate some of the reasons why both the previous Government and the present Government decided not to have a kind of list system for the filling of casual vacancies? The Minister did not say why. He just said both Governments considered it. I do not take that as a full answer to the point I raised. Would the Minister be kind enough to mention one or two of the reasons?
The Bill was drafted by the previous Government except for the constituency changes. The same Bill was considered by this Government and we were satisfied with the Bill as drafted. I have not got access to the specific reasons why the previous Government did not adopt the list system. I would suggest this is a discussion on the general principles of the Bill which would have been more appropriate on Second Reading.
There is, perhaps, some confusion in Senator McDonald's mind about this. First, the list system would be a totally different system of election. It obviously has the great and, perhaps, only advantage that you can just add in the next person on the list if there is a vacancy. As a completely different system of election which nobody has ever used in this country, it could obviously have grave disadvantages at election times. People who have been used to voting by proportional representation for 50 years all of a sudden would have to transfer to a new and strange system. This would represent problems which might cause a certain amount of ill-feeling amongst the public, particularly the power it gives to parties to nominate the candidates on the list. It does not seem to me that, once you are using PR, it is possible to have a provision that the next man who did not get elected will get the seat. First, the next man who did not get elected, might not be a member of the same party. Secondly, if you say it will be the next man on the party's list, there might be no next man. The party might have elected all its candidates or might only have put up one.
In the list system there is always somebody below because you put up far more than you can get elected, but in PR that does not necessarily apply. So there is no automatic person. You could also have the situation that the next man on the list in the PR election might have got a couple of hundred votes and would not be a suitable person to nominate. I do not see how it could work.
On the definition of a casual vacancy, subsection (3) defines a casual vacancy in two ways in paragraph (a) and paragraph (b). Reading them, I am wondering which of those paragraphs applies to the casual vacancy arising from the death of a person. Is it paragraph (a) which talks about the vacancy arising through the effluxion of time, which is literally what happens, or is it paragraph (b) which talks about a representative ceasing to be a member otherwise than by the efflux of time.
Paragraph (b) refers to a vacancy occasioned by a person having ceased to be a representative in the Assembly otherwise than by the efflux of time.
Is there any reason for drafting it that way? Does that not refer to a casual vacancy arising by death? It is a convoluted way to phrase it.
There could be reasons other than death.
I take that point.
If the Minister is satisfied that covers it, and there can be no doubt about such a casual vacancy, I am satisfied.
You would have to list them all. For instance, a man elected who becomes a Minister of his national Government would have to vacate his seat.
As long as the Minister is satisfied.
With regard to the security for costs which is provided for, the maximum sum provided for is extremely high and, of course, I can see the very great importance of ensuring that frivolous petitions would not be taken. The whole election machinery could be brought to a halt. This could hold us up to a certain amount of ridicule internationally, but nevertheless one can see a situation where the requirement of security could be an inhibition on a person with a genuine grievance but not clear legally. He would be inhibited from getting clarification from the courts by virtue of this provision.
The court can reduce the amount of security required to whatever level it considers appropriate. Would the Minister consider, for the extremely rare case where there would be some difficulty in finding security, giving power to the court at its discretion to dispense with any lodgment of security? The court in effect has that power because it can reduce the amount to be lodged to a nominal penny presumably. Why not make that clear to the court and write in "or may dispense with any such lodgment".
The courts can reduce it to a nominal sum if they want to.
I appreciate that if we write in that phrase it would show the court the mind of the Legislature quite clearly on this matter, that the Legislature envisage only a nominal sum. What the section says is "such lesser sum as the court considers appropriate". The court's idea of a lesser sum might still be substantial having regard to the ceiling of £5,000 which is the sum fixed. I am suggesting that we should clearly indicate to the court that it may dispense with this entirely.
We cannot dictate to the court the amount it should be reduced to. It is left to the discretion of the court. They can reduce it to whatever they like.
I appreciate that. What I am asking is this. Would it not be an improvement if the section were to signify clearly and in explicit language that the court may dispense with it entirely?
I would not agree. The figure of £5,000 as security is the amount, but the court have discretion to reduce it. This gives them ample flexibility.
What is the amount in the case of a Dáil election?
One thousand pounds.
Why is this so much more expensive than the one for the Dáil, or is it that the £1,000 for the Dáil was fixed generations ago and has never been raised?
The £1,000 which relates to the Dáil was fixed during the last century.
On the Senator's argument with regard to the British deposit, that should be increased rather than this decreased.
There is another question on section 17 which the Minister might clear. With regard to subsection (7) which states:
Where the count declares that the whole or any part of an Assembly election was void, a fresh election shall be held in accordance with the provision of this Act to fill the resulting vacancy or vacancies....
In determining that the court has to look at the question of the regularity of the proceedings, I am not clear how this is going to work in practice, because we will be dealing with very large geographic areas. Take, for example, the constituency of the province of Leinster. If the court finds that an irregularity took place only in County Carlow, a part of the constituency, what happens? Has there to be a total new election for the entire constituency of Leinster?
Yes, the entire constituency as set out in the Bill, not just for one Dáil constituency but for the entire Assembly constituency.
In dealing with the First Schedule we will take the amendments and then proceed to discuss the Schedule itself, which must be taken as a whole. Since however this Schedule extends over 42 pages, I suggest for the convenience of Senators that we take it page by page. If Senators have any points to make on any page they can do so as I call it. Amendment No. 1 in the name of Senator Robinson. As amendment No. 2 is consequential on amendment No. 1, both may be taken together.
I move amendment No. 1:
In page 40, Part IV, Rule 71, lines 23 to 29, to delete paragraph (1).
These amendments refer to Rule 71 of the First Schedule which provides for the prohibition on voting more than once. I raised this matter on Second Stage. The purpose of the amendment is to delete subsection (1) of Rule 71. That subsection provides:
A person shall not any year in which an Assembly election is held both,
(a) apply for a ballot paper or vote at the election, and
(b) apply for a ballot paper or vote at an election being held as regards any Member State other than the State in pursuance of any provision laid down under any or all of the treaties.
As I mentioned on Second Stage, this subsection appears to be in conflict with the approach by some other member states to the system of voting in direct elections to the European Parliament. I asked for some clarification from the Minister on this. I understand the French Bill which was passed last June provides voting rights for French citizens living outside France during the European elections. I also understand that the Danish Bill has been passed, and provides voting rights to Danes living in other member states.
This provision seems unnecessary. Why should we concern ourselves about how other countries approach the question of direct elections? Why should it be an offence in this country for French citizens to do what they would be entitled to do under French legislation for direct elections to the European Parliament? Why should it be an offence for the Danes to do what they are entitled to do under Danish legislation? While direct elections are still at this interim stage and until there is a uniform electoral procedure—I do not want to be as pessimistic as Senator Yeats was about the time scale we are talking about in moving to a uniform electoral system—there are bound to be certain anomalies between the methods chosen in the different member states.
As I said on Second Stage I very much welcome the fact that we give voting rights to nationals of other member states. That is what the European elections are about. I do not think we should turn around and penalise nationals of member states who have availed of the rights to participate in elections here but who, under their own national legislation, are given the right to vote in either the French of Danish elections using the postal vote. I welcome a response from the Minister and I hope he will find this amendment acceptable.
The purpose of this provision is to ensure that nobody votes twice under Article 8 of the Act which is part of the Council decision of 20th September, 1976, which is the instrument relating to direct elections. It provides that no one may vote more than once in any election of representatives to the Assembly. Under this article which applies not just here but throughout the whole Community, double voting at Assembly elections in any circumstances is forbidden. Thus the Act of the European Communities lays down the principle of one man one vote in relation to Assembly elections.
It would, of course, be inappropriate for an instrument of the Communities to create a criminal offence and to prescribe a penalty for it. It is, therefore, left to the individual member states to provide in their national law for the implementation of the principle of one man one vote and this is precisely what Rule 71 (1) does. It provides that it will be an offence under our law for a person to vote at an Assembly election here and at the same Assembly election in any other member state. Rule 71 creates the offence and Rule 91 lays down the penalty for it. We are complying with the article of the Council decision on this matter. I feel certain that each member country will do likewise. They might permit a citizen living outside their national territory to vote, but we will not permit the same citizen to vote here and for his own country.
Is the Minister aware that, for example, in either the French or the Danish legislation there is specific provision that it would be an offence for a person to avail of his postal voting rights and also to vote in this country?
We do not know, but we presume they will do their part as we are doing. It is up to each member country to include it in their legislation.
Given that this is a new situation for nationals of member states living in this country, for example, French or German or indeed British citizens who are not accustomed to voting in the general election here and who are now being given voting rights in this European Assembly election, is the Minister satisfied that they will be sufficiently aware that if they choose to vote in Ireland in the Assembly elections they may not use the postal votes? When they get through the mail from France or from Denmark, information about exercising their right to postal votes there, will it be drawn to their attention sufficiently that if they exercise that right they will be committing a criminal offence under our law which would incur substantial penalties?
We intend to publicise it well in advance to make them fully aware of it, apart altogether from whatever publicity political parties will give it.
Is the amendment withdrawn?
In the light of what the Minister said, although the convention is not in favour of double voting, in the situation where national countries are approaching the framework of direct elections in different ways and where anomalies may arise, it goes further than our requirements under the convention actually to provide for a criminal offence in this country and it may cause considerable hardship to some persons. For example, a French citizen living here may apply for a ballot paper for a postal vote in France but may not actually vote, he may find himself liable to prosecution for a criminal offence. The wording of the section said that "if a person either applies for a ballot paper or votes". A French, German or Danish citizen might apply for a ballot paper under his own national system or might wish to exercise his voting right here for the Irish representatives to the European Parliament. The election would take place on the same days, that is, during whatever period is fixed by the Council of Ministers. This seems to be a potentially very harsh provision, in particular because it means not just a question of voting but of even applying for a ballot paper to vote.
This could not be worded any other way because one can easily prove that somebody has applied for a ballot paper but how could you prove he had voted? I cannot conceive how you would begin to do that, short of asking the Italian or French Governments to break the secrecy of the ballot by looking at the ballot papers. I am not sure if they could even do that. The outward and visible sign of having done anything is that you have applied for the ballot paper. I do not see how it can be worded in any other way.
With regard to the main points, Senator Robinsin was quite wrong in suggesting that we are in some way exceeding our requirements under this head about double voting and that nobody is really bothering. From the very start, right through the early debates in the Parliament and right up to the end of the whole process, there has been a very strong and universal stress laid on the need to avoid double voting. This has been made quite clear at all stages. Not only has every country provided that you cannot have double voting, but they are bound by law to do so. We are all bound by the convention which has been agreed by the council and I suspect—I do not want to get involved in legal niceties—that even if our Act did not say so, it would be an offence under Community law to vote twice. I do not think we are exceeding our requirements in any way.
I do not want to prolong the argument. It would have been advantageous if the Minister had read the Schelba Report which was the subject of a considerable amount of discussion in the parliament on the rights of citizens of the Community and the desirability of extending the vote to them especially to migrant workers. The Minister is being a little too restrictive. I am not advocating that people should be allowed or facilitated to vote twice. I do not think that question arises as Senator Robinson said. Nevertheless, people should be facilitated to exercise a choice.
They have a choice.
The problem is do they have a choice? If a person wants to exercise the choice, probably under the postal voting system he would have to apply for a ballot paper in order to decide whether to exercise the choice.
I am not familiar enough with the French or the Danish proposed voting systems to know if this will be a problem, but if the French and Danish law allows citizens living in other member states to vote in the French or Danish elections, what happens if they send them ballot papers? Although a person has not applied for it an unsolicited ballot paper may arrive in the post and what then is his position under this section?
He would not be held to be guilty of an offence if somebody posted him a ballot paper, but applying directly for a ballot paper to vote in his own country and to vote here also would be an offence under this Act. The applying for the ballot paper becomes an offence as well as voting twice. We are really only complying with the article of the Council in doing this. As Senator Yeats said, it would be very surprising if the other countries did not do this also. With regard to the manner of voting, it is possible we will have a large number of Italians who may be permitted to vote in their own country. Arrangements will be made between our Foreign Ministry and the Italian Foreign Ministry to allow them to vote. It may be postal or otherwise—they have not yet decided. We will discuss this at a later date if the Italians permit it.
Is the amendment withdrawn?
In the light of the fact that the Minister does not seem to envisage that it will cause unintentional hardship on nationals of other member states, a difficulty arises because we are opening up our electoral system to nationals of other member states which is something with which I very much agree. The wording of Rule 71, considering the severe penalty it can invoke, seems too harsh but the Minister is satisfied, and if airing the matter in the Seanad this morning has helped to clarify the situation for nationals of other member states, then I am happy to withdraw the amendment.
On the ruling of the validity of nomination papers, page 14, paragraph (4), Chapter 10, says
When the returning officer has ruled on the validity of a nomination paper, he shall put a note of his decision.... If he rules that the paper is invalid, he shall include a statement of his reasons. His decision under this Rule shall be final subject only to reversal on a petition questioning the election.
It might be difficult to provide for an earlier questioning of his ruling. Having regard to the majesty of petition proceedings, it is really an impractical way for a person to challenge a ruling on the validity of the nomination paper. The constitutional requirements may demand that some provision be there implicitly. Some provision for the earlier questioning of the ruling on the validity of a nomination paper should be written in. I do not think it would hold up the election proceedings because the courts would provide a mechanism for a speedy decision on such a query. It seems to be a situation which potentially could lead to injustice if the questioning of a ruling on the validity of a paper had to await a petition questioning the election.
Rule 10 requires the returning officer to rule on the validity of a nomination paper within one hour of its receipt by him. He may rule that it is invalid only if it is not properly made out, for example, if the description of the candidate in the opinion of the returning officer is incorrect, insufficient to identify the candidate or unnecessarily long or is not properly signed.
If there is a dispute between the candidate and the returning officer on these points, they cannot have it decided on until after the election, and then it is much too late.
The returning officer rules within one hour of its receipt.
His ruling is final. It can only be reversed on a petition questioning the election. The point I was making is that there should be some procedure for earlier questioning of his ruling.
That is exactly the same as for Dáil elections.
That means there are two Bills bad in that regard.
Perhaps so, and as I said already in the Dáil, it is our intention to have a general reexamination of the electoral laws as they stand. Certain matters in this legislation were amended during the Dáil debate, and they were identical with the Dáil Electoral Acts.
I have a query on page 20, paragraph 2 (e), Chapter 22, about the marking of the numbers on the back of the counterfoil and the ballot paper. I was going to ask if this matter was not considered by the court at some stage but as I was about to ask I remembered that the court considered the invalidity of marking the elector's registered number on the counterfoil. Was that not the point?
The number on the counterfoil was considered by the court that day.
The number from the register of electors on the counterfoil.
And the elector's number as well.
On page 22, the arrangements for polling stations are pointed out, but there is no reference anywhere that polling stations must be easily accessible. The reason I am raising this point is that during the Dáil election before last in one town the polling station was put on the second floor of a building. In one case an elderly person was not able to mount the stairs to vote and inquired about his right to vote. He was told that if he could not go up the stairs he could not vote. The person concerned wrote to his returing officer but got no satisfaction whatever. We make arrangements in the Bill for blind people but there is nothing in it that says the polling station should be accessible to elderly or infirm people.
Before every election we advise returning officers that the polling booths be accessible for invalids and blind people and they must take all this into consideration. It is really a matter for the local returning officer who has the local knowledge. He is advised to do so and to comply with what the Senator said. It is left to his discretion and he should be capable of making the place accessible for such people.
In rural areas, as in the case mentioned by Senator Jago, there is a revision of polling districts or polling booths. There is an opportunity in the local authority to delete a polling booth or add a polling booth. This occurs in some cases where the returning officer chooses the location of the polling booth and also has a right to delete, but it must come before the local authority because they must give their blessing before this can be done. I understand that the returning officer has also the right to delete, and has deleted in certain areas, without the authority of a local authority. I suggest that the authority for the deletion or addition of a polling booth should be the responsibility of the local authority in the county council electoral areas. These people are close to the electorate especially in very remote rural areas. The case mentioned by Senator Jago occurs very frequently. People have to travel long distances and in some cases they pass polling booths on their way to the polling booths where they are supposed to vote. There must be some liaison at local level between the voters and those amending the polling booth regulations.
It is solely the function of the local authority. The returning officer has no power to delete any polling station unless he is unable to provide a suitable building in that area. That is the only circumstance under which he may do so. It is solely the function of the local authority to provide the station for an election. It is the duty of the returning officer to select the polling station within a particular area.
On page 26 there is the thorny question of the illiterate voter. The provision is that the presiding officer marks the ballot paper in the presence of the personation agent and no other person. This positively excludes the poll clerk and garda who may be on duty. It is wrong to exclude those persons because it is conceivable that there would be polling stations where there would be no personation agents in attendance. The presiding officer would then mark the ballot paper in the presence of the illiterate person only. This is undesirable. There should be the check of having present the second publicly appointed official, the poll clerk, and, in addition, the garda on duty should be allowed to remain. It cannot be said that the secrecy is any more damaged by allowing these people to remain than it is by the presence of the personation agents and the presiding officer.
Once any person other than the voter becomes aware of how a vote is cast, secrecy is no longer a factor. Secrecy is not maintained if a person other than the voter is aware of how the vote is cast. If there is any question of trying to preserve secrecy, it has already gone out the door. At that stage our minds should be directed to ensuring that the vote will be cast in accordance with the wishes of the illiterate person and that the ballot paper be marked in accordance with those wishes. I am aware of a case where a ballot paper was checked before it got into the box and it was found that it had not been marked in accordance with the wishes of the illiterate voter. It is a safeguard to ensure that the poll clerk is there along with the presiding officer, personation agents, if any, and the garda.
I mentioned the situation where there would be no personation agents. A more likely case is that there would be a personation agent present for only one party. The situation where there would be the presiding officer and a personation agent for one party only and an illiterate person's ballot paper to be marked is not an ideal one. The Minister takes very well the point I am making. Secrecy is no longer an issue where the voter is not marking the paper himself. Once secrecy is not an issue, we should direct our minds to ensuring that we have a system which will exclude irregularity. The best way to do that is to have extra people there; I would suggest the poll clerk and a member of the Garda.
This is the same as the existing Electoral Acts for the Dáil. The original intention was to preserve secrecy as far as possible. This permits three or four people, depending on the number of personation agents to be present. By extending this, we would be infringing further on the secrecy of the ballot. It is possible that we might change this in a general review of the law but it is the same for this assembly election as it is for the Dáil or council elections.
The legal position as set out here, which the Minister says is the position under the Electoral Acts generally, is never honoured in the case of illiterate voters. There is a general belief—I suppose we must blame presiding officers for not reading their instructions properly and politicians for not instructing their own agents properly—that the poll clerk and the garda are entitled to remain while an illiterate voter is casting his vote. That belief has been translated into practice and these people are invariably present. In his review of electoral law, I would urge the Minister to bring the legal situation into conformity with what has been the practice.
I disagree with the Minister that, in confining the number of people, we are preserving secrecy. The point I was making originally was that secrecy is no longer an issue because the vote is open. By definition it cannot be secret. If secrecy is to be preserved then I would exclude the personation agents, the political agents on the scene, and leave the poll clerks and the garda. There would then be a better likelihood of confidentiality being maintained. In his review of the electoral law I would urge the Minister to change the law to permit the poll clerk and the garda to be present when an illiterate voter is voting.
With regard to the hall being cleared when an illiterate voter is voting, in a premises such as a dance-hall there might be four polling stations around the floor and there might be a deaf and illiterate voter. The conversation between him and the presiding officer would obviously be heard throughout the hall. There is a requirement to clear the area and have nobody present except the presiding officer, the agents and the voter. Does that include the officials who are working at the other polling stations in the same hall?
It does not have to. In a hall such as Senator Cooney mentioned, the usual procedure is that the presiding officer and the personation agents would go with the voter to a far corner of the hall, out of hearing of anybody else, and do their business without being heard by anyone. It is the usual practice to go to the far end of the hall without clearing the whole hall.
If the voter was not satisfied with that, could the presiding officer clear the entire hall?
If the voter requested it he could clear the whole hall.
I am not aware, as Senator Cooney suggested, that presiding officers and polling clerks are politically appointed. I am aware that personation agents are appointed politically. The case cited by the Senator, where you may have a presiding officer, a polling clerk and a personation agent from one political party, is an unfair criticism of our returning officers. I have no experience of the type of appointment mentioned by the Senator.
The word "illiterate" should be deleted from all electoral laws that come before both Houses because I do not believe there is any such thing as an illiterate voter. There may be some incapacitated voter, a voter whose vision may be impaired. Visibility in the polling booth may be very poor; the voter's hearing may be poor; the voter may be incapacitated in one way or another rather than illiterate. As a result of the spoiled votes in the last Seanad election and the recent Seanad by-election, is the Senator suggesting that Members of both Houses are illiterate? I believe there is no measure of illiteracy in either House and that votes were spoiled from some other reason, perhaps impaired vision. The number of spoiled votes in the Seanad election should be compared with the number of spoiled votes in the general election. I am not a mathematician, but let the mathematicians—and I am sure we have plenty of them—work that one out. I appeal to the Minister that the word "illiterate" should be deleted in future from all electoral laws. I agree with Senator Cooney that incapacitated voters may not have sufficient secrecy where two polling booths are operating under the same roof. It is very hard to maintain secrecy in those circumstances.
When a poll closes at 9 o'clock, from 5 o'clock on the presiding officer, at his discretion, may refuse an illiterate vote on the grounds that it would interfere with the poll. Does the Minister consider four hours to be excessive? Would two hours not be adequate, or possibly three hours? One can imagine a person who has been at work not being available to attend the polling booth before 5.30 or 6 o'clock. Rarely is there such a rush at that hour of the evening that the presiding officer would feel compelled to use his powers. If one had a fussy presiding officer he might use his powers. The discretion should be restricted to two hours.
The presiding officer has discretion within the four hours. My Department have never had any complaints about this matter.
In regard to page 27, paragraph 7, it has always been assumed that the duty of the presiding officer in the case of an illiterate voter was to read the list of candidates to him so that he could make his choice. There is no such duty specifically given in these rules. Rule 5, page 26, states that the presiding officer marks the ballot paper. Rule 7, page 27, states that the presiding officer may assist the elector by reading out in full from the ballot paper the particulars stated in respect of each candidate. Presumably that means the address and political affiliations of candidates rather than their names. I presume we have to rely on the good sense of the presiding officer to read out the names of the candidates to the elector. One is entitled to assume that a voter will know who is in the field. In an election like this, where names would be strange to electors because of the size of the constituency, they may not know the names of the candidates. There should be a positive duty on the presiding officer to read out the names and particulars. In other words, to compensate for the lack of reading ability on the part of the voter.
He may read out the list of names and political parties. If the voter goes into the polling booth and says he wants to vote for X, the presiding officer marks the ballot paper. He may also read them out.
Does the Minister not agree that there should be a positive duty formally to read them out to compensate for the voter's illiteracy?
I would think it is less confusing for such a person. It is easier for the voter to remember a name when he goes in than to have a number of names read out.
It might put the well drilled voter off his stroke.
He might put the wrong name down. He could be confused by the list.
What would happen in the event of a voter being told outside? He may not be the type of voter to whom Senator O'Toole referred. He may be a man who has never been to school and has not the capacity to remember, but he may have a great sense of allegiance to a political party. He may not be aware of a new candidate in his area and because of altered constituencies or some other reason he may be confused by being in the polling booth with a lot of strange faces around him. He has been trying to remember what was drummed into him outside the polling booth. It may be fair for the Minister to say that, in the circumstances, it would be easier for him not to have other candidates' names put before him. In fairness to the voter and in justice and equity, the names of all the candidates should be read out because it would enable the voter to look over the field of contestants. He may be committed to a candidate other than the one he was being forcefully persuaded to give his allegiance to outside the booth. It will enable the voter to give his allegiance where he normally should. Anyone associated with elections is well acquainted with that sort of canvassing and persuasion outside polling booths.
If the elector wants the names read out they will be read out. If he is quite sure without having them read out whom he wants to vote for, he is quite entitled to do so. If he requests it, they will be read out.
On top of page 28 the parliamentary draftsman is calling "literature" what we politicians issue at election times. I am glad that our own word has not been taken up and put into a statute. We should feel flattered, even though it is probably abuse of the English language to describe what we issue as "literature" in the normal sense of that word. Does "literature" in that sense cover the wearing of party emblems in polling booths? At election times, the wearing or non-wearing or entitlement to wear party emblems in polling booths is invariably the cause of contention. This is particularly so at times of by-elections. It is my understanding that until this matter was put there there was doubt about it. Some presiding officers and returning officers excluded the wearing of party emblems in the polling booths. Others permitted it on the grounds that they could not find any rule to entitle them to exclude it.
I would suggest to the Minister that it should be put beyond any doubt that the wearing of the emblems in booths should either be included as permissible or excluded totally. I would suggest excluded totally, because if you permit it at all the danger is that it could be abused and a discreet emblem could turn out to be something of the nature of a mini-poster through time. I would be glad to hear from the Minister on that point. Does "literature" include party emblems?
It does not include badges, which the Senator has in mind. They are not included. Such things as posters are included. The point the Senator makes is something we should consider at a future date and have the wearing of emblems included, but it is not included now.
At what stage will the electoral laws be reviewed? We are leaving a lot of things, which would be desirable changes in this Bill, for the general tidy-up that the Minister has in mind.
It is not very advanced because we were dealing with this matter for a few months in the Dáil as well, but I hope the review will be completed soon.
I am sure the Minister will agree that this matter has been the cause of a lot of contention, and worse, in some polling booths. Will he consider specifically excluding emblems on Report Stage?
If we were to amend it now we would not get our business done before the Christmas recess. That is the difficulty, but——
Is that urgency still there in view of the news about the possible date of the election?
It is there but not because of anything in the news. It is necessary for the good reason that the electoral lists are now being compiled throughout the country. We need to make certain regulations regarding the Assembly elections in order to include these in an up-to-date register for the coming year. This is very necessary.
Would it be correct to say that if the polling officer wished, he could at present insist on removing emblems?
He has not that authority at present.
Paragraph (3) on the top of page 28 reads: "... a polling station shall be deemed to include all parts of the building and any land within the curtilage of the building ..." That is very clear. Does it include the boundary walls?
It includes the boundary walls. Party workers should really be outside the gate.
Would the presiding officer's powers to have offending literature removed extend to the whole curtilage and not just to the polling station?
Yes, to the boundary walls; to the whole area around the polling station.
There is a feeling that the presiding officer's functions end at the door to the room in which he operates and that outside the door the matter would be for the returning officer rather than the presiding officer. I would like to clarify who will have authority to clear offending literature from the curtilage.
His jurisdiction extends to the boundary walls and includes the boundary walls.
I am still wondering about this emblem problem. As we know, for years past presiding officers had been telling people to remove emblems. I wonder are they not absolutely entitled to do so under Rule 42 (1) of this Schedule, which reads:
If any person misconducts himself at a polling station or fails to obey the lawful orders of the presiding officer for that station he may immediately have to be removed.
The question is, what is a lawful order? If the presiding officer tells you to remove an emblem, is it lawful within the meaning of this sentence? I suspect it is. The presiding officer would be entitled to say, "Remove that emblem. I will throw you out if you do not" on the grounds that the carrying of the emblem is likely to cause disputes, problems, troubles, disorder in the polling station. By the exercise of his discretion the presiding officer could make you remove it in order to avoid disorder.
It would hardly be regarded as a lawful order.
Assuming a few emblems and there is objection from a political group, surely the presiding officer would have the authority to ask that they be removed.
On the question raised by Senator Cooney, the Minister has established that the presiding officer has authority over the lands and buildings. Must he carry out this authority or can he use his discretion?
He uses his discretion but he has authority if he requires it.
Rule 46 provides that at the time fixed for the closing of the poll the presiding officer is not to admit anyone else to the polling station, but any elector on the premises at that time shall be entitled to receive the ballot paper and to vote. I am not sure what this means. Take a national school where there might be a couple of polling stations in classrooms and an entrance hall. Does that entitle persons in the entrance hall— they are on the premises but not in the polling station—to vote? Is some confusion creeping in here? A few minutes ago we were referring explicitly to a definition which says that for the purpose of this rule polling station shall be deemed to include any land "within the curtilage" of the building in which the polling station is situated. We will have to be more precise in Rule 46 in regard to the polling station and the premises. Are they two different things? For example, a country school with a yard and a hall and in the classroom the polling booth. If a person is in the curtilage, is he on the premises? Does he have to be in the hall or does he have to be in the polling room? I suggest to the Minister it is not clear. Come 9 o'clock a large number of people could claim the vote on the grounds that they were on the premises.
Within the building, the actual building, is the way it is. He would undoubtedly have to exercise his discretion because you could have a very big building in some parts of the country. As it stands it means "within the building".
With respect, it is not at all clear that "premises" means "building". It is established that "premises" can include both the building and the curtilage attached to it. "Curtilage" has a very definite legal meaning of being attached to and being part of a building. If the word "premises" is used that admits persons who are in the yard of the premises, who have gone through the entrance gate or in the yard. At that stage if the law says that person may have a vote I do not think there can be any question of the presiding officer having a discretion to say: "you are not to have a vote". I do not think there can be any question of discretion.
If a person is in the right spot before closing time and the statute says he is to get a vote he must get it. If the statute is not clear as to whether he is in the right spot that is the fault of the statute and should be cleared up.
Obviously, there is room for clearing up here because one phrase in a subsection refers to "admitted to the polling stations" and the next phrase to "any elector on the premises". Before that we have a careful definition for the purpose of removing literature, a much less important thing than a voter getting his vote. There is a specific reference to the curtilage. I strongly urge the Minister to look at Rule 46, irrespective of what delay it may cause because there is a very important principle at stake.
I am sure Senator Cooney has greater experience than I about polling days. All I do know is that the polling clerk closes the door. On many occasions I have stood outside asking that another Fianna Fáil voter be allowed in but it was made clear that the door was closed and that was it. I am sure the Minister will be able to elaborate. Senator Cooney is asking what happens if somebody is within the area or in the hall. The polling clerk closes the doors at 9 o'clock or 9.30 in Clare.
The point I am making is that it is not at all clear from the rule that the polling clerk would be in order in doing precisely that. That is what I want cleared up for Clare and everywhere else.
The wider definition referred to in Rule 42 has to do with posters. That covers the larger area but my Department have always advised presiding officers to interpret premises as the building or, indeed, part of the building in which the polling station is situated. That is the advice that has been given to them. There is a question of locking the polling station also. If one locks the door, which one has to do at the close of poll, the people outside cannot be admitted.
What is to be locked? Is it the door of the room in which the ballot boxes are situate, is it the door into the building or is it the gate into the yard of the building? I suggest to the Minister that the position is not clear and there could be potential trouble arising from this. Obviously, this was foreseen in the earlier rule covering the removal of literature. That rule spoke about a power to remove from the polling station and yet it was felt necessary to go on and define polling station to include all parts of the building and any land within the curtilage. Why not have a similar definition after the use of polling station in this other rule that no further Assembly electors can be admitted to the polling station and the polling station shall include all parts of the building and the curtilage. The matter is beyond doubt there. At the moment it is full of doubt. The Minister has admitted as much himself when he said that the instructions from his Department are to admit people who are in the building and then he said, or maybe in half the building. That suggests the predicament the Minister is in. The provision is not clear. Is it, as Senator Honan said, that the door of the place where the ballot box is is to be locked and that is the end, or are people in the corridor outside that to be admitted or are people further back in the hall to be admitted or are people in the yard outside to be admitted? I strongly urge the Minister to remove the doubt in this rule.
With respect to Senator Cooney, one can be as hypothetical about this as one wants, because polling booths, as all of us know, range from a room in a private house somewhere down the country to a room in Bolton Street College of Technology. We could argue all day—I am not suggesting that we do not properly debate it—and look for more clear legislation to cover what was termed as a polling booth or a polling station but people involved in politics or public life readily accept that there is a clear definition about a polling station or a polling booth. At the end of the day we are dealing with a human being who will be exercising some degree of discretion. I have seen the presiding officer come to the door of the building. He was very slow to close and exclude somebody.
It is clear and easily understood what the premises are in so far as boundary walls and the putting up of posters are concerned. It is also clear and easily understood what the polling station and polling booth means. One can be as hypothetical as one likes, one can extend it and one's imagination could stretch to the extent of discussing every kind of situation that might prevail up and down the country. At the end of the day there would have to be some degree of practical approach that the presiding officer is in charge and will have to be left in charge. No matter how the draftsman writes up the legislation a small degree of discretion will have to be left with the man on the ground.
I can understand Senator Cooney being technical. All legal men are very technical, especially when we are dealing with laws——
This happens to be a law.
——and regulations. However, we can get over-technical. Any amendments of any law are always demanded by the abuses we have had in the system. I do not know if there are any blatant abuses or if many people are denied the right to vote if they approach the premises around 9 o'clock, whether that be at the door or at the outer perimeter of a particular polling booth. The cardinal rule in this House is that if a Member is approaching the door when the division bells have ceased the usher does not lock him out but lets him through. The same applies down the country or in urban areas in any polling booth. It is not something we should be over-concerned about but I can imagine the technicalities that could be involved. If it is taken reasonably, and if the law is put into effect reasonably, it is only where there is criticism of abuses that one needs to consider amending the law. If one amends it in this case it will have to be amended for general elections, by-elections and local elections. We must have the same law applying for all elections.
If we spot what appears to be a fault in the law we should not wait for it to become an abuse in practice before we seek its remedy. That is what I am seeking to do here. The point has been made that this could be answered by the discretion of the presiding officer but whether a citizen has a vote or not should not be a matter for the discretion of the presiding officer. He should, so far as possible, be guided by a specific Act of parliament entitling the voter to vote. I am asking that in the phrase "elector on the premises" that "premises" be defined so as to indicate clearly to the voters what it means. If a person is in the hall of a school, is he then on the premises and, therefore, entitled to vote or has he to be in the actual room which is the polling station itself. It was thought fit to define it in regard to less important things, such as the right to remove election literature from the polling station in order to clear that particular right. It was thought fit to define "polling station" as including the building and any lands within the curtilage of the building. This is a recognised legal way of defining the location or extent of a premises. I am asking that that definition be repeated in this more important section.
Senator Cooney says that no discretion should be left with the presiding officer and that the right to vote or the right not to vote should not be left at the discretion of the presiding officer either. How would he handle a situation where a man arrived at the door, or was on the approaches to the building or stood outside the door arguing until it was two seconds to 9 o'clock on his watch and the presiding officer's watch showed 9 o'clock? There is a fine element and the discretion would have to be finally left to the presiding officer.
That is not analogous.
The situation is clear. On the "premises" means to me inside the structure of the building in which the voting is taking place. There is a main door to any building or structure and if one is inside that main door before the specified time, which is normally 9 o'clock, he is entitled to vote. If he is not inside the door before 9 o'clock, in my opinion, he is not entitled to vote. I have not seen any abuses of this aspect of elections down through the years and I have been associated with many. I have not seen any great disputes. The doors were closed on the dot of 9 o'clock by the time-keeping of the presiding officer with which he began in the morning. People are fairly accurate about time now. They are listening to radios, looking at television and their watches are accurate enough. My acceptance of the definition would be, inside the main door of the building or the structure at the time specified, 9 o'clock, and that satisfies me.
I would agree with the Senator's definition and I accept that it is perfectly reasonable. I am asking that it be put into the Bill so that it is not just the Senator's opinion or my opinion but that it becomes a matter of law. I also agree that a person inside the main door, as suggested by the Senator, should be entitled to vote. I have seen situations where presiding officers genuinely thought that if the person was not inside the door of the classroom within that building they were to be excluded and the people in the hall were thereby excluded. I agree with the last Senator that such people in the hall are intended to be covered by this rule. All I am asking is that the rule makes it clear.
I should like to ask —I am sorry I arrived a bit late in the midst of this—the Senator what insertion does he propose and where?
That the word "premises" be defined to include the entire of the building within which the polling station or stations are situated.
With reference to what Senator Cooney has just said, I believe that that definition is inherently there, that if a person is on the premises he is inside the building and that is it. I do not think it has to be spelled out semantically.
It is not a question of semantics; it is a question of legal definition. Senator Robinson will support me when I say that "premises", in the legal sense, is taken to mean both the building and the curtilage of same. The Senator is suggesting that "premises" in this sense should mean only the building. That is why I say it is necessary for us to be precise on what exactly we mean by premises? Do we mean the building and the curtilage or the building only.
"Premises" has a very definite legal meaning. It has when one is caught in a pub, as I have been. It has a very definite legal meaning.
That is a licensed premises.
It has a definite legal meaning.
What does it mean?
Does the Senator want to know what it means in practical terms, if one is on the licensed premises, on the licensed area?
What is the meaning of "premises" in relation to Leinster House?
The instructions we give to presiding officers interprets it as the building in question. That is according to the instructions as opposed to the grounds. The problem arises here because of Rule 42 (3) where it is set out much more clearly with regard to the surrounding area. This has to do with posters and the like and it only applies to Rule 42. We are speaking about Rule 46. That is why the problem arises. It is interpreted as the building and it has not created any serious problems to my knowledge.
It has not because people thought that if they were in the building but not in the polling place they were late.
If the Senator wants to keep following this—Senator De Brún mentioned discretion—one has to have some discretion. If one takes a country house, there are many of them where the people oblige the returning officer by giving him a room in that house to be used as a polling station. When it comes to 9 o'clock should he not at least use his discretion? Should he lock the door of the room of the polling station or should he lock everyone, the woman of the house and so on, One has to have discretion, in rural Ireland anyway whatever about urban areas.
Obviously, he would not exclude the people whose home it was, but the point is, would he allow votes to people who are in the house but not within the polling room.
Senator Cooney is being very tenacious about this. I tend to give him support. He has a genuine point. For instance, if it is an enormous building, the size of University College, Dublin, or Trinity College, for instance, could not someone turn up half an hour late and say that he had come through the front door of that building on time but he had a lot of trouble finding the room. I know hard cases make bad law and all that, but if we could copper-fasten it and define it even more precisely it would be better. We have a number of Bills at the moment, particularly the one about the description of fraudulent practices, and we know from them that the closer a law can be to absolute enforceable fact the better it is as a law. I agree with Senator De Brún that we need discretion; there is always an area of discretion but the area of discretion should be as small as we can justly make it. Senator Cooney has a good point. There are certain circumstances within which some contrary voter who turned up late, found himself in the building, arrived at the polling booth 35 minutes after the closing time, could say: "I have been on the premises. I have been wandering around——
Not if the door was locked.
Can one lock the door. There are some where the door cannot be locked. That is the point the Minister has made, one cannot lock the doors when one is under the hospitality and forbearance of the people in charge of the place. One cannot make the place one's own. For instance, if there was a polling booth in Bolton Street there is no guarantee that one can close the door of that building against everybody because lots of people go in for other purposes than for voting. There is a loophole there. It is not a litigious point or a party point. If the degree of discretion could be narrowed it would be a good thing for the Bill.
The Senator made a point about some person turning up 35 minutes late saying that he was somewhere in the building but he cannot possibly vote because the ballot box is sealed immediately after the closing. He cannot claim a vote once the box is sealed. This is the extreme case. How extreme are we going to be? I am at a loss to know how we ever conducted elections all these years.
We conducted them because people were not aware of their rights. That is precisely the position. I was under the impression that a person had to be in the actual polling place, in the classroom of the school, and that if he was in the hall or the corridor outside he was late. That is the way the matter was operated in practice. I am now beginning to find out that if he is in the corridor he is in order. I should like to read again the subsection:
At the time fixed for the close of the poll the presiding officer shall take steps to ensure that no further Assembly electors are admitted to the polling station, but any elector on the premises at that time shall,...
It does not read clear to me and perhaps we could end the discussion if the Minister could assure me that in a building such as a national school the people in the hall and in the corridors of that school come 9 o'clock are entitled to be admitted into the room where the ballot is taking place and be allowed vote.
The people the Senator refers to are admitted to vote.
I have listened to the points made. The principle one was made by Senator Cooney. I recall circumstances where in rural areas there was more than one booth situated in a building. We have a circumstance where two booths adjoined in different rooms with a common hallway or corridor. A person going to vote could understand that his vote is in Booth No. 1 while he should have gone to booth No. 2. Supposing that person approached the presiding officer in booth No. 1 at 8.55 p.m.—most polling stations close at 9 p.m.—and he spent ten minutes trying to get the vote when he discovered that his vote was in booth No. 2. It was after closing time but because he was on the "premises" was he entitled to vote? Is he entitled to go from booth No. 1 to booth No. 2, arriving there at 9.15 p.m. or 9.20 p.m. and demand his vote? It could happen that 20 people would abuse the law, people who are anxious to create a circumstance that is legal but unfair to the structure of what we intend the law to be.
The boxes would be locked at this stage.
They would be gone.
I want the right of a person to be clarified. If he is on the premises but not in the polling booth, as Senator Cooney said, has he the right to vote? When he gets into a building or on a premises connected to another polling booth by a corridor and has 15 or 20 people with him, are they all entitled to say that once they were inside the outer door they are all entitled to go into No. 2, having found out that they did not have their votes in No. 1 and vote? This should be defined to the extent of specifically saying whether entitlement applies within the room or within the building.
With respect to Senator Cooney, he is pressing a wrong point although he probably feels firmly about it. I can only imagine that he has been fortunate in politics up to now to have had somebody to do this work for him because if he insists on a definition which is not possible to get it shows lack of practical knowledge of what happens on the ground. The fact is that all of us who have taken part in elections realise that. I have not seen a booth being locked or the door closed in a manner that it is not possible to gain access to. I have never met a presiding officer who did not use his discretion as an usher would use his discretion here. I have arrived a fraction too late and I have never seen the door being hammered closed. I have never seen anything but the utmost discretion used by all presiding officers.
Arrive too late, where?
If I may use a hypothetical case, if Senator Cooney was presiding officer and I arrived——
I know my duties now.
If he was the presiding officer and I arrived as he was closing the door would there be an element of discretion to be exercised there? No matter what the book says, no matter how the legislature has written it he must use his discretion. There is a clear definition in my mind, and in everybody's else's mind. It is said that elected Members have such an attitude. We spend a lifetime fighting this type of small print and we quarrel with the parliamentary draftsman to the point where we feel there is not enough discretion. It is sad for some of us here to be differing to the extent that there is really nothing to differ about.
Last word, and I am sure the Minister will be glad to hear that. Senator McGowan raised the question of the presiding officer who is closing the door and sees somebody coming. Which door is he closing? Is it the door of the building or the door of the polling booth? That is what the whole argument is about.
The polling booth.
If we decide that it it is the building that matters then he has no discretion if the time has gone and he is closing the door of the building. If we decide that it is the school room that matters and the time has gone he has no discretion. Once the hours comes that is it, there is no room for discretion. What we want to decide is, at which physical point of the building does he exercise his discretion. The Minister assured me that "premises" means the building within which the polling places are situated. That will do me; I will accept that. I have to say to the Minister that is not a proper interpretation of the statute.
I should like to ask whether Senator Cooney has an emendation to this. Is there a formula he could put in there? I take his point, and I think it is a good one. I agree with Senator McGowan and Senator Cooney. There is always an area of human discretion which has to be there. We are not machines. The point is, that should be reduced as much as possible in any legal enactment. Is there a way? I should like to put this, through the Chair, to Senator Cooney, who has declared he has now fallen implacably silent on the entire issue. Is there a better formulation? Can he suggest a better formulation? If he cannot, then let us stop the entire matter.
I can. You can define premises, but the Minister is in a difficulty. We are in a rather farcical situation and it is neardéja; vu, as far as I am concerned, in regard to the situation the Minister is in. He has to have the Bill.
On page 32, on the rule which deals with the procedure for opening postal ballot papers, I am trying to reconcile Rule 50 with Rule 56 (2) and Rule 75 (1) (b). Rule 56 (2) says that the returning officer shall cause the papers to be kept face upwards and prevent numbers from being seen at the count. Rule 75 (1) (b) makes it an offence for a person to attempt to ascertain the number on the back of the ballot paper. This is a duty of the returning officer when he is taking out the postal vote. I have heard of an instance where a returning officer felt the best way to deal with them was to deal with them back up so as to prevent any sort of account being taken of how the postal vote was running at that stage in advance of the postal vote box being opened at the actual count itself.
I can see situations where the returning officer would have to open the postal votes, possibly to check was the receipt in the ballot paper envelope instead of being separate. It may be necessary for him to open the postal vote again to ensure that there is no irregularity, that two votes were not folded up together in the one envelope. As a matter of practice, returning officers open out the postal votes before putting them into the postal vote ballot box. I wonder is he committing an offence if he opens them out with the number up. It is not an important point but I should like it clarified.
The returning officer is told to put the number down.
And to face the vote up? Is he in order in opening out the votes? If he does, a count can be made immediately of the postal vote.
Face the paper up and the number down. This is way he is supposed to do it.
The postal votes could actually be counted at that stage in advance of the count? The envelope would show their source without indicating the identity of the voter.
In the case of the postal vote, I am informed, he would not have unfolded it when he placed it in the box.
In practice they are unfolded and have to be unfolded for a number of reasons. The most obvious one is the one envisaged in the preceding page, which deals with the situation where the receipt does not appear to accompany the ballot paper envelope. The polling officer is entitled to examine the ballot paper to see if the receipt is with it. Again, he will want to check to see would two postal votes be folded together, which of course would be highly irregular in the case of the postal vote.
The returning officers have been circularised to the effect that they should not unfold the papers. For each election they have received a circular to that effect. Despite that, it appears that it does happen in some cases. Those are the instructions they get.
I would not like the Minister to think when I speak of what I heard, I saw it. I did not. I do not identify my neck of the woods. On a point of clarification with regard to the recount, on page 38, Rule 65, it is provided that a candidate at the conclusion of any count may request the returning officer to re-examine and recount the papers during that count. Then at the end of the total count there is power to have a total recount. What appears to be missing is a power to recount an earlier count than the immediately last preceding count. I wonder if the Minister would consider that there should be such a power that, if there is a call at the third count for a recount of the first count, there should be power to enable that to be done.
It is at the discretion of the returning officer to do so.
He can go back?
He cannot refuse for the immediate preceding count? He has no discretion there?
That is correct.
On page 40 Rule 71 (5) "...a person who has marked, whether validly or not... shall be deemed to have voted". Rule 72 (2) says "... a person who has marked... shall be deemed to have voted". In the situation of those two paragraphs "deemed to have voted" leads to the commission of an offence. I wonder how it will be proved that a person has marked. I do not think there can be an assumption. There has to be positive proof. It is a situation which is literally impossible to prove. So I do not know how the offence could be prosecuted.
He would have to be seen marking it. I think that is the only proof.
That is unlikely having regard to the nature of voting. On page 42. I am puzzled by a phrase in Rule 75 (3): "... or if at any time he communicates any information obtained at such count as to the candidate for whom any vote is given on any ballot paper." I cannot figure out what that means, because the essence of a count and the supervising of a count and the presence of agents at a count is that they are watching the votes there and they are passing information to each other, to the candidate and to all sorts of people as to the person to whom the votes are being given and the total votes.
It means a ballot paper containing a particular number in this case.
I am not quite with the Minister.
It means if he was able to identify it because of the number on the back, if he was so sharp as to be able to identify it, but it is most unlikely to happen.
If by chance he saw the number on the back of the ballot paper and was able to relate that to——
It is a chance in a million. That is what it means.
All I can say is, if the care that went into thinking up that precaution and drafting it had been exercised with regard to the description of the premises, it would have saved a lot of time.
On Rule 76 (f), these are offences relating to the ballot. It is an offence to fraudulently take a ballot paper out of a polling station. I wonder why the word "fraudulently" is used there at all. It seems to me it should be an offence, without any need to prove fraud, for a ballot paper to be removed from a polling station. The Minister is as well aware as I am of the abuse which removing ballot papers from polling stations can lead to. It can lead to the notorious chain vote. It could lead to all sorts of undesirable practices into which I will not go in this company.
They have to come out of the boxes at the end.
I am sure I do not have to tell Senator Brennan how a chain vote works. It works back into the box.
If a man genuinely takes a ballot paper out of a polling station that is OK, is it?
Why the word "fraudulently"?
If he is genuine, he is all right.
The returning officer takes them out legally. If it is done otherwise, it is fraudulent.
Why not say without proper permission or something like that. The word "fraudulently" has a precise legal meaning in criminal law. I can imagine a person being prosecuted for this and escaping his culpability on the grounds that fraud was not proved against him.
"Fraudulently" means unauthorised as well.
Rule 88 provides that a candidate or the agent of a candidate who handles a ballot paper during the counting of the votes at an Assembly election shall be guilty of an offence. I wonder what would the Minister say would be the position of the candidate or his agent who has been invited to scrutinise doubtful votes. Doubtful votes, as everybody knows, are handed around between the people scrutinising them to hold them up to see if the mark is on them, or to have a close look at them to see is there anything on them or anything not on them that should be on them. According to that very specific provision, if the votes are handled in that situation, the parties handling them are guilty of an offence.
This is a new one. It does not appear in any other electoral Act. This is the first Bill it has appeared in, and it is more or less to prevent a person putting a mark on a paper by handling it.
I agree it is desirable, but it should exclude the situation of the scrutiny of doubtful votes. I presume it will not be enforced against a candidate in that situation.