Seanad Éireann debate -
Thursday, 13 May 1982

Vol. 98 No. 1

Prevention of Electoral Abuses Bill, 1982: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister for the Environment (Mr. Raphael Burke)

This is a short Bill with a single purpose, namely, to clarify the provisions of the electoral law in relation to the offence of personation in the case of a person who votes or attempts to vote more than once in his own name at the same election. The offence is defined in section 3 of the Prevention of Electoral Abuses Act, 1923. The relevant part of the section reads as follows:

...every person...who having voted once at an election applies at the same election for a ballot paper in his own name, shall be guilty of the offence of personation.

It has emerged that there may be difficulty in proving that a person has actually voted and in a recent prosecution it was held that, to do so, it would be necessary to produce and identify a ballot paper marked by the person concerned. The Bill proposes to overcome the difficulty by providing that the offence shall exist if a person having obtained a ballot paper at an election applies at the same election for a ballot paper in his own name. A saver is included in relation to the situation where a person who inadvertently spoils his ballot paper may return the paper to the presiding officer and obtain another ballot paper in place of the spoilt paper.

The Bill is a very brief and simple one designed to make good a possible defect in the electoral law. Since the matter first arose there have been different suggestions as to the precise way in which it might be dealt with. Having considered various possibilities the legal advisers and the parliamentary draftsman recommended the approach contained in the present Bill.

In deference to the wishes clearly expressed on all sides, this measure has been brought forward as a matter of urgency to clarify a specific provision in relation to Dáil elections. I know that this House will agree with the view of the Dáil that it is desirable that any doubt which exists should be removed before polling day in the Dublin West by-election. I trust, therefore, that Senators will give a speedy passage to the Bill, so that it can be enacrted as early as possible.

Mr. P. Reynolds

This Bill is introduced because of an incident in the last general election on 18 February, polling day. Seemingly a Mr. O'Connor, a solicitor, went into a polling booth in Malahide accompanied by his daughter and requested a ballot paper which he duly received. His daughter also requested a ballot paper which she duly received. They went into a screened off place with the ballot papers, spent some few minutes there and, in my opinion, voted in that booth. He then walked to the box with the ballot paper, and placed it in the box. If he did not place the ballot paper in the box, he placed some other piece of paper in the box. We are not talking about somebody who did not understand the procedure. Let us keep in mind that this man is a solicitor, an election agent for a particular candidate.

He then left that polling booth and went to Kinsealy. His daughter accompanied him again. He walked into the polling booth, went up to the presiding officer, produced a card which is sent out to each individual elector and, in return for the card, he received a ballot paper. If he did not produce a card he gave a number, or a name and an address. His daughter did likewise. Again they proceeded behind the screen, spent some time there, came out and placed a piece of paper — in my opinion a ballot paper — in the box. Ultimately there was a court case held, I think on 20 April. District Justice Kearney presided at the court and his decision was: "I am ruling that the prosecution has not proven, and could not prove, that the defendants or any defendants committed this offence of double voting".

Again let us keep in mind that we are talking about a solicitor, an individual who was an election agent for a particular candidate during the campaign. I have no doubt that man knew what he was doing. Admittedly, it would be impossible to trace the vote. Some years ago the number on the register was put on the ballot paper. The secrecy of that was questioned in the High Court and it was held to be against the Constitution. For that reason there is no way to trace that vote. Even if we went through the total number of votes cast — in the region of 70,000 or 80,000 or whatever the figure was — it would be utterly impossible to find out where these two ballot papers went to.

Naturally I do not want to be critical of any judge. I do not know this man at all. The question about the daughter is more serious. Was she encouraged by her father to personate in this election or in any other election, or did she do it on her own accord? If she did it on her own accord it is peculiar that she did not arrive at the polling booth on her own. She arrived at both polling booths with her father and did exactly as he did. There could be some doubt about her because, if she was influenced by her father, she could have gone into the second polling booth and not cast a vote. Perhaps she went into the first polling booth and did not cast a vote, and cast her vote in the second polling booth. Certainly there could be some doubt about her guilt, but there is no doubt in the world that her father personated. As I said he is a solicitor, an election agent for a candidate, and he knew what he was doing. How many more people did he encourage to do this type of thing? I do not know, but it sounds very peculiar.

I am not a legal man. I know nothing about the legal end of this but I read in the papers that Mr. O'Connor and his daughter were tried and acquitted, and even the Director of Public Prosecutions cannot bring on another case. This is the situation. The Minister has produced this Bill, a very short Bill, a Bill to deal with this problem. From now on if a person demands a ballot paper in Kinsealy and goes to Malahide and demands another ballot paper, he is committing an offence according to the Bill.

This offence has been committed before. I can quote a number of cases. I can quote the case in my own constituency of a presiding officer in a local election. He voted in three names and this was proved beyond any doubt in the court — one was in America, another in hospital and the third was dead. This man was acquitted in the court. Six months later I went into the Department of Agriculture, and the same man had an appointment in that Department. Was that in recognition of what he had done for the party he was supporting? This is far more serious than people think and there is nothing in this Bill to stop this. We have this very serious situation. A number of district justices apply the Probation Act. They can do that because it is within their rights. When other district justices meet this problem they sentence them for a period of not less than two months and not more than 12 months, and fine them £100. I do not think it is unreasonable to ask the Minister or his draftsmen to put into this Bill a direction to these district justices telling them what to do in this situation: that the law says that any person who collects two ballot papers, in the one booth or in different booths, commits an offence of personating, and is liable to be sentenced to six months in jail, one month in jail, fined £100 or whatever the decision may be. There are many other points which should have been brought into this Bill.

In my honest opinion a polling card is a licence to personate. Everybody knows that in smaller constituencies there are people who go around collecting polling cards. Maybe they are not advised by political parties but they do it. If somebody is dead or away from home or not available to vote for some reason, these people go to the polling booth, produce this polling card, collect the ballot paper, walk in and vote. That is bad enough, but they probably have collected one polling card in every street and voted in other polling booths. There is nothing in this Bill to prevent that.

Reports from the Garda superintendents, sergeants and garda meetings, show that there is no point in the gardaí preparing cases and bringing the culprits to court when the justices are letting them off. That has happened very often in this type of case. Unless the Minister remedies the situation it will continue. The Minister must add a lot more to this Bill before it could be accepted by this House.

Mrs. O'Rourke

In the absence of the newly elected Cathaoirleach I wish her well and a very successful tenure of office, and I ask through the Chair to have these wishes conveyed to her. I would like to welcome again to this House the Minister for the Environment, Deputy Raphael Burke and to pay tribute to him for the speed and celerity with which he has introduced the Prevention of Electoral Abuses Bill 1982, to both the Dáil and the Seanad. As he has said in his short speech on the Bill, it is in response to requests from all sides of the House — and I would like to put that on the record — that the Government have moved to bring in this Bill so that what may be defined or seen or perceived by some people as an abuse may be corrected. Senator Reynolds appears to have magical or occult powers because he was able to re-enact, in his own very vivid imagination, what happened outside screens, inside screens, outside polling booths, inside polling booths, between fathers and mothers, brothers and sisters and daughters, at the last election. It is amazing the prowess and very vivid imagination people adopt when they get up in a do-good fashion and proceed to point the finger at all sorts of people. Fingers can be pointed in lots of other directions as well. It is galling to hear what I would call sanctimonious talk issuing from the other side of the House.

I welcome this Bill. It is short and to the point and its brief is very clear. It proposes to overcome the difficulty by providing that the offence shall exist if a person having obtained—and the operative word is "obtained"— a ballot paper at an election, applies at the same election for a ballot paper. I do not think you require a degree, or anything but plain common sense to see this Bill makes plain common sense. I applaud the swiftness with which it was introduced. I favour this Bill and I hope it will be ready for implementation prior to the Dublin West by-election.

Acting Chairman (Mr. Harte)

It is not the practice to advise the Chair in advance that you want to speak. When the opportunity arises, you stand up, and whoever catches the eye of the Chair is called.

Mr. Hourigan

I should like to make a simple point. Firstly, judgments handed down by courts can vary considerably in this and other instances. In the O'Connor case, to which reference has been made a certain judgment was made. At the same time in Limerick there was a person before the courts for an identical offence. The person in question, however, was less informed and less influential and the consequences were that the judgement he received was two months imprisonment and a fine of £500. I would just like to make the point that the case in Limerick was identical in all respects with the O'Connor case, with two different justices trying the two cases.

Mr. Fallon

I too should like to refer to this Bill. I was appalled by Senator Reynolds' contribution. He adopted an attitude of a court of law — he was solicitor, defendant, judge, and jury and he threw out questions as if this were a court of law. I do not think that was a right type of speech; it was more an interjection. I object to it strongly. He seemed to imply that his party are free from any type of abuses. He clearly indicated that people on the Fianna Fáil side were involved. I personally can give instances where members of his own party have been involved in abuses in the past. The whole purpose of this short Bill, as the Minister has said, is to rectify electoral abuses. It has been welcomed by all sides of the political divide. It should get a fair hearing and not the type of verbiage we had from Senator Reynolds to which I totally object. It was wrong and he has done his party and this House no credit.

Mr. Cregan

As the Minister said "The Bill proposes to overcome the difficulty by providing that the offence shall exist if a person having obtained a ballot paper at an election applies at the same election for a ballot paper in his own name". How do we prove he obtained any person's ballot paper and how can we prove he got it in his own name? If he applies for a ballot paper in another name, what can we do about it? How can it be proved that he did not apply for the ballot paper in another name? Is that what happened with Mr. O'Connor and his daughter? Again, as Senators on the other side of the House have said, Fianna Fáil now recognise and admit it was one of their party members. It is not fair to be saying that it was one party or another. I am here to discuss the Bill and to try to improve on it. But there is not an improvement here. I would like to ask the House is it an improvement? How can we prove it if a person claims a ballot paper in another name? How can we prove it or not prove it? That is the question I would like to put. It is quite serious and a little bit of thought should go into it. A Senator has now put before the House the question of a person being found guilty. Is it a fact that the person who was not found guilty has now a case against the State? Has the person who has got two months irrespective of who it is, a case against the State? Was the summons before the justice against Mr. O'Connor wrong? These are questions which must be put. Was the justice in fact wrong?

Professor Murphy

I welcome the Bill. It is supposed to close off a loophole for election abuses. It may not close off all loopholes, but let us wait and see how it works out. There is a curious contradiction in popular attitudes towards the matter of personation and other electoral incidents. In a sense personating at an election is an integral part of our political culture. It was one of the weapons perhaps which our people had to use to make proper use of their British legacy, shall we say. The election which lies at the basis of this State — the 1918 general election — was characterised by massive personation. The advent of the Irish to power in America also made effective use of the weapon of personation. At the same time people are understandably cynical when someone who is charged with personation and in whose case the burden of evidence is overwhelming has his case dismissed. The popular attitude compounds the cynicism which is already gathering force in this country as a result of the events at the beginning of the year. People had been genuinely shocked by the perverse and scandalous miscarriage of justice in the O'Connor case. It would be very hard to blame people for drawing the conclusion that the defendants in question got off because they were the friends of the mighty and powerful.

It has been suggested by various legal luminaries — and the point has been made in the other House — that what further aggravates the situation in that particular judgment is that for every offence there is also an attempted offence. If through the mind-boggling technicality which the justice had used to dismiss the case if the offence itself could not be established, then the massive weight of evidence would have established the attempted offence. Yet that does not seem to have been invoked. The point has been made that this legislation is therefore unnecessary. But I welcome everything that purports to close the loopholes in electoral law.

Mr. O'Connell

I would like to congratulate the Minister and the Government on moving expeditiously on this and bringing forward legislation which will help to clarify the matter. Senator Fallon was critical of Senator Reynolds' contribution, and one might be tempted to attempt a reply in a similar fashion, not necessarily on a personal basis. But it is part of the central theme of what I intend to say on this, as shortly as possible, that nothing is to be gained by any of us indulging in that kind of interchange. The fact of the matter is that none of the established parties can afford to be sanctimonious about this particular affair. Senator Murphy has already eloquently testified from a professional point of view to the importance of these or related practices in our political culture. Each one of us who has been in politics for any length of time has his or her favourite stories about these matters. We cannot afford to be sanctimonious on two counts; first because we all know — and it should be said here and a spade should be called a spade and not an agricultural implement — cases of people known to us and in many cases respected and admired by us who have had, shall we say, a connection with this particular area and who possibly could be said to have flourished as a result in this and other institutions. We cannot afford to be sanctimonious about the practice. It has been indulged in by people who would claim in other contexts to be agents or supporters of all the established parties.

The second point is that we cannot afford to be sanctimonious about the question of the register. It is to the register I would like to refer in a few hurried remarks. Particularly in the cities and particularly in those areas of the cities which have multiple dwellings the register is a farce. We know it to be a farce and our parties have in effect done nothing about it. The method by which the register is compiled and put together and published is, if I may use a reference from another area, a mockery, a snare and delusion. Senator Murphy will know of the reference I am making. We know that this document which appears is more often to be described as something fitting for the obituary pages or the natal announcements than as an accurate description of those entitled under the Constitution and law to participate in the electoral process. I would ask the Minister to move expeditiously on this. It is something which requires careful thought and requires recourse to what modern technology can offer in this area. I would ask him to do something about the method by which the register is compiled.

Here I would like to deviate slightly from whatever facetious atmosphere might possibly have attached to my previous remarks. If we are dealing with the compilation of information of a personal nature, we are dealing with an extremely serious area, an area in which the whole area of personal privacy, the right of individual citizens to that privacy and the right which we have not yet confronted in this country — the right of persons to information about files and so on held on them. We have not yet addressed ourselves properly to this. We know that there are organisations, some of which have an official backing, which compile very substantial files of personal information about citizens. It is not easy and it is sometimes impossible for those individuals to find out what is on those files. In the process of compiling a register by modern, up-to-date methods the Minister and his advisers might be tempted, from the point of view of efficiency, to use methods or machinery which would invade privacy, which would require substantial investigation of individuals. When one considers the practical problem that we have all encountered on the doorsteps of trying to find out who actually does live in a house, who has not yet been interred according to the rites of Holy Church or otherwise and who has, in fact, been baptised or not and whose name may appear on the electoral register, we know that it would require a considerable amount of investigation and the pursuance of this invasion of privacy. This is the kind of problem that the Minister would have to address himself to.

The other aspect of it is that if this is to be done efficiently and effectively it is going to cost money. The present system by which we have possibly one or two officials in any area following up this kind of business and trying to compile the list will not suffice. I would ask the Minister seriously to consider the appointment of a committee to advise him on this matter and to try to find a method of compiling the register which would meet these problems in regard to individual civil rights and so on, which would not be too expensive and would also lead to the compilation of a register which would eliminate many of the abuses that we have had in this area.

There is, I think, even among political people, a difference in their attitude to the two main kinds of personation. Most political people with whom I have had contact would be in no doubts about the moral difficulty of seeking a ballot paper in the name of some other person. It would be quite clear to most people in that situation that there is something approximating to fraud involved. With regard to situations in which the same name may occur on a register, there are, I believe, many people, and even political people who should know better, who would have the view that there is no harm in ensuring that those votes are not left dormant and stagnant with the cobwebs and dust gathering upon them for the brief period they would be on the table.

I would ask the Minister when this Bill is passed — because certainly I believe that on this side of the House we will do everything to facilitate him — to take some time on television and radio and also some space in other media to people and to clarify for them what precisely the offence is. Obviously, there has been a great deal of discussion of this particular case and the issues involved, but I believe that people are not yet totally clear about this and there is a case for some further publicity to make clear to people what the situation is. By doing so, the Minister will have done a great service to parliamentary democracy in this country.

Mr. Dowling

I too, like many of my colleagues, welcome the provision of this Bill, but nonetheless I have to mention that I am not totally happy with the wording of it. I have not a legal mind and perhaps the Minister will enlighten me and the House about the position where a person applies for a ballot paper in his own name having allegedly previously voted. As has been previously suggested by Senator O'Connell the question of fraud may come into that case. Nonetheless, in view of the facts which brought about this legislation I think that, as Senator Murphy pointed out, in the initial stage of the history of this State massive personation took place.

As he has suggested it took place in other areas also. We have had an electoral law which has been in effect since 1923 and it has taken the present situation to bring about this amendment. I must admit to the House that I was aware of various alleged personations having taken place and I am sure that all politicians and all political parties must have at some stage heard of various cases where people have suggested or boasted that they had voted two or three times. Indeed, some people have said that in the initial stages of this State when our political parties came to power you voted early and you voted often.

I hope that the Bill as it is put before the House will rectify the situation which has existed down through the years. I think that 99 per cent of the people of this State would not wish to be associated with any form of personation. They would like to vote once.

In regard to what Senator O'Connell had to say about registers and the compilation of registers, we know that the abuse of compilation in the larger urban areas is far greater than it may be in rural areas. Nonetheless, this is something to which the Minister in view of his responsibility in this area should give serious consideration and bring in some competent persons to ensure that people who are entitled to vote would, at least on the day of voting, have their names listed for that purpose.

Mr. Durkan

One thing that comes to mind in relation to the unfortunate case which precipitated this particular piece of amending legislation is that there is a grave danger that it would engender in the minds of the public a contempt for legislation preventing people from voting more than once. This in turn could bring about a situation which would lead to mass personation at elections in the future. I am not making a political point here — I think we should all ponder on it — if one ponders on what is alleged to have happened in the cases referred to by Senator Reynolds in the last general election one must remember that any person who goes into a polling booth, having allegedly voted once before in that election, and seeks a ballot paper certainly does not do so just to give an autograph or something of that nature. I do not wish to be frivolous but I must point out that any persons, whether they are followers of a political party or not, who do that knowingly, having voted previously, must be aware of the consequences.

This brings me to the point which is the most important point — I will address myself through the Chair to the Minister at this time — this has already been referred to by Senator Cregan, and that is that we are now left with having to prove that the vote has been taken previously or that the person concerned has voted either in his or her own name or in somebody else's name previously. To my mind there was already in existence sufficient machinery to ensure that a person could not do that if we are to resort to the proof that will be required in the future. I was always under the impression that a Bible was placed before the presiding officer in each polling booth to ensure that if there was a query in relation to identification the person or persons concerned could be sworn in. This would lead us to another avenue, that of having to prove at some future date whether or not the person had in fact committed perjury. Again, we will have to arrive at the point of proving whether or not the offence took place. In that case one could not possibly prove in a densely populated area that an offence had been committed by a person who had voted, for instance, in the morning in one polling booth and proposed to vote in the evening in another polling booth, unless the personnel at the polling booth were in a position to positively identify the person or persons concerned.

This Bill is welcome but to my mind it does not eliminate the loopholes that were there in the past. I think they are still there. The unfortunate consequences of the decision in that case — I have no wish to criticise any judgment — are that the general public will see that it is now necessary to have ample proof that the offence took place before they are liable to prosecution.

Minister for the Environment (Mr. Raphael Burke)

I wish to thank the House for their reception of this Bill. It was indicated that it was designed to deal with a single specific situation. A number of Senators felt free to comment on a particular case. I am advised that the case is sub judice and therefore I am precluded from commenting on it. It would be fair to say that there has been a certain indulgence by members of the Fine Gael Party, both here and in the Dáil, in hypocrisy. In the 1981 election, for example, there were 51 reported cases of personation. What, may I ask, did that administration do about the personations which took place when they were in power after the June, 1981 election? There is need for this Bill: there is general agreement on it and it is desirable that it should be enacted at this stage in order to close off a loophole.

A number of points were raised with regard to the compilation and deficiencies of the register. My Department have received numerous complaints from around the country of the defects in the register in the last election, and every politician is aware of the condition of the registers in his or her own area. The one in County Dublin leaves a lot to be desired. I announced in the Dáil on 29 April that I intend to set up a working party to bring about a real improvement in the standard of the register to close off the deficiencies, the omissions and the errors which have occurred in the past. The working party will comprise officials from the local authorities as well as from my own Department and returning officers. They will start work immediately and report back to me within three months so that we can tackle the register for the coming year.

The working party will also look at other areas related to the running of elections, for example, access to polling stations for the disabled. We are all aware of cases where the polling station is the traditional polling place in election after election and there has been no thought given down the years to improving access to these polling stations or to moving them into new buildings where there would be access for the disabled. This is one item which will be looked into by the Working Party, as well as many others.

A number of drafting points were raised in relation to the wording of section 1 of the Bill. I appreciate the concern of the House to ensure that this revised section should be as watertight as possible. I would like to advise Senators that the parliamentary draughtsman has advised me that the present wording of section 1 of the Bill is adequate to meet the kind of situation that was mentioned.

The question of the punishment for personation was raised. Section 6 of the Prevention of Electoral Abuses Act provides for a compulsory jail sentence, but in most cases it appears that jail sentences are suspended. There are good reasons for leaving the section stand as it is at the moment. I am grateful for the welcome given by the Seanad to the Bill. This was a measure which was submitted by agreement to the political party whips prior to its introduction in the House. The proposed wording now in the Bill was agreed by the political parties involved.

Question put and agreed to.

Agreed to take remaining Stages today.