As this is the first occasion I have been in the Seanad since your election to the prestigious position of Cathaoirleach of the Seanad, I would like to wish you a very happy and fruitful term of office.
The purpose of the Bill is to consolidate, with amendments, the law relating to the election of Members to Dáil Éireann. It deals comprehensively with all aspects of Dáil elections extending from the registration of electors through the nomination of candidates, the taking of the poll and the counting of the votes, to election petitions and electoral offences. If the Oireachtas sees fit to enact the measure it will mean that, for the first time, the entire law in relation to Dáil elections will be contained in a single statute.
The existing law on the conduct of Dáil elections is contained in 14 different pieces of legislation, the earliest of which dates back to 1923. In addition, legislation relating to the questioning of a Dáil election is contained in a number of British enactments, the earliest of which is dated 1852. These enactments were continued in operation for Dáil and Seanad elections and referenda by the Electoral Act, 1923.
The 1923 Act, which was one of the earliest enactments of the new State, provided the basic law on the registration of electors and the conduct of Dáil and Seanad elections and referenda. The law in relation to Seanad elections and referenda was replaced by separate codes in later decades but the law relating to Dáil elections and the registration of electors continued in place virtually intact until the enactment of the Electoral Act, 1963. That Act partly replaced the Dáil electoral law contained in the 1923 Act, in the process repealing and amending large segments of the Act, but leaving intact a considerable number of its provisions. In the period since 1963, the Electoral Act, 1963, has itself been the subject of a substantial number of amendments.
The law governing the prevention of electoral abuses is contained in a separate enactment — the Prevention of Electoral Abuses Act, 1923. That Act was designed to consolidate and amend the then existing law relating to corrupt and illegal practices and other electoral abuses at parliamentary elections. Some of the provisions of the Act were applied to presidential elections and to Seanad university elections on the enactment of separate electoral codes for these elections in 1937. Like the other principal enactments relating to Dáil elections, the Prevention of Electoral Abuses Act, 1923, has been extensively amended over the years.
The sheer number of statutes relating to Dáil elections and the extensive amendment of the principal enactments have left the law in a very fragmented state. It is, in fact, in danger of becoming the preserve of the experts and the specialists. This would be particularly inappropriate in the case of the electoral code which is of direct and immediate relevance to all citizens.
The law relating to the questioning of Dáil elections is contained in six 19th century Acts, the earliest dating back to 1852. While the law has been adapted, it is not entirely suitable for elections under our system of proportional representation. Most of the provisions had their origin in the period which preceded the secret ballot. They were designed for a system of limited suffrage at its evolutionary stages, and related to a period in which the safeguards against electoral malpractice were not as well developed and defined as in modern electoral law. This is evidenced by the large number of election petitions which were a feature of the last century.
Under the existing provisions there are two separate statutory procedures for questioning a Dáil election. The first is by appointment of election commissioners, following a joint address of both Houses of the Oireachtas, to investigate allegations of widespread corrupt practices at elections. The second procedure is by petition to the High Court. Until 1868, Parliament itself had responsibility for dealing with the questioning of elections and the investigations of allegations of electoral corruption. In that year, responsibility for the trial of election petitions was transferred to the courts but the earlier provision for the involvement of Parliament was retained.
The 19th century provisions for questioning the results of Dáil elections are repealed by this Bill and are replaced by a modern procedure involving the hearing of Dáil election petitions by the High Court. The procedure contained in the Bill is similar to the existing provisions relating to local and European elections petitions which were enacted in 1974 and 1977, respectively.
The law relating to the registration of electors is contained principally in Part III of the Electoral Act, 1963, and in detailed regulations made under that Act. However, separate provisions in relation to the registration of electors for Euro elections are to be found in the European Assembly Elections Act, 1977. The Electoral Act, 1985, extended the Dáil franchise to British citizens and established the new category of presidential electors which comprises Irish citizens only. The Electoral (Amendment) (No. 2) Act, 1986, provides for the registration as electors of diplomats posted abroad, and their spouses, and for the registration of disabled electors as special voters. Thus, like Dáil electoral law generally, the law relating to the registration of electors has been extensively amended over the years and is fragmented and difficult to follow. The existing law is being repealed and replaced by a comprehensive code contained in Part II of and the Second Schedule to this Bill.
I think it will be of benefit to all that basic law relating to the election of our national Parliament should be spelt out in a logical manner in a single comprehensive piece of legislation which is accessible and meaningful to participants, administrators, the legal profession, the media and the public generally. This Bill will bring that about.
The Bill is essentially a Dáil electoral measure. While it contains certain references to the codes relating to presidential, Seanad, European and local elections and referenda, these references arise either as a direct consequence of changes being made by the present Bill or in order to apply to those other electoral codes provisions which are regarded as of sufficient importance or urgency to be applied now rather than await legislation relating to the specific code involved. This Bill does not purport to consolidate those other codes or to amend them in any comprehensive way. This, in so far as it may be necessary, will be a matter for another occasion.
I would like at this point to refer to the changes in substance proposed in the Bill and, where they are not self-evident, to indicate the reasons for the proposals.
The provisions in relation to the registration of electors are contained in Part II and the Second Schedule. In this area, quite extensive changes are proposed, changes which represent a distillation of experience gained in the operation of the system over many years, as well as suggestions for improvement made by Members of the Oireachtas, local authorities and others.
We all complain about the standard of the register and, in many cases, not without good cause. In fairness, I would like to put it on record that the standard is by no means as deficient as is sometimes suggested. The only systematic inquiry into the accuracy of the register, that I am aware of, was carried out by the ERSI. Their report, entitled "A statistical analysis of the Irish electoral register and its use for population estimation and sample surveys", published in 1986, shows that our register compares not unfavourably with the standard elsewhere. The report concluded that "It has certain deficiencies which we have documented but, for most research purposes, these are neither as serious nor as widespread as anecdotal evidence might suggest". However, there is no room for complacency and we must seek ways of securing substantial improvement. The changes I am proposing will provide the framework for significant advance.
A new and shorter time-scale for preparing the register will be introduced. One of the problems with the present timetable is that some of the information in the register is already seven months out of date by the time the final register is published. Another is that the time for scrutiny of the draft register by public representatives and the public generally spans the Christmas holidays. Under existing law, work on the draft register commences in mid-September, the draft register is published on 1 December and the period from 1 December to 15 January is allowed for the display of the draft and the submission of claims for correction. The revision court sittings have to be completed by 28 February and the register of electors is published on 1 April, coming into force on 15 April.
Under the new timescale, the qualifying date will be 1 September and the draft will be published on 1 November. Claims for correction may be made up to 25 November. Revision court hearings will be completed by 23 December and the register will be published on 1 February. The new date for the coming into force of the register will be 15 February.
Provision is made in the Bill for the publication of a supplement containing the names of qualified electors omitted from the register. Unfortunately we are all too famliar with instances where persons who may have been on the register for decades find themselves omitted for no apparent reason. We can undertand and sympatise with the anger and frustration of people who find themselves in this postion, particularly as there is no effective redress.
Successive Ministers have constantly impressed on local authorities the need for absolute care in drawing up the register, and particularly in ensuring that no qualified elector is excluded. I know that local authorities do their best in this regard and, as I have said, research has shown that the accuracy of the register here compares not unfavourably with the standard elsewhere. Each year, my Department and the local authorities conduct a substantial publicity campaign advising people to check that they are included in the draft register.
Section 15 of the Bill and Part II of the Second Schedule set out a procedure under which a person incorrectly excluded from the register can have his or her name added by means of a supplement. On discovering the omission, the person concerned can apply to the local authority which will carry out the necessary inquiries, the county registrar will rule on the application, the applicant will be notified and on the occurrence of an election or referendum, a supplement to the register containing the person's name and the names of other successful applicants will be published.
The criterion in every case will be that the person must have been eligible for inclusion in the register for the area in question on the appropriate qualifying date.
Registration in respect of more than one address will be specifically prohibited by the Bill and it is made clear that inquiries by the registration authority and county registrar for this purpose may extend beyond their functional area. While the Constitution and the electoral law make it clear that a person may vote only once at an election, the existing law in relation to the registration of electors does not specifically provide that a person may not be registered more than once. In a Supreme Court judgment on a case taken by students at Waterford Regional Technical College, it was held that existing law does not prohibit plural registration as an elector and that the county registrar is not entitled to require information about the registration of a person on the register for any other constituency.
Prior to this judgment, electors were registered on the basis that a person was entitled to be registered once only at the place at which he or she was ordinarily resident. Registration authorities and county registrars operated on the basis that they had the right and duty to inquire whether a person who wished to be registered for the registration area might already be registered, or applying to be registered somewhere else in the country.
The Supreme Court ruling must be accepted as an authoritative statement of existing law but it is not an interpretation of a constitutional provision or a statement of any constitutional or other fundamental right. The court has simply clarified the meaning of the existing provision in the law. It does not preclude amendment of the law which, under the Constitution, is a matter for the Oireachtas.
Section 11 makes it clear that a person may be registered once only as an elector. Where, prima facie, the person may have a claim to be registered in respect of more than one address, he or she may exercise an option. In effect, the Bill will restore the position to what it was assumed to be before the Supreme Court ruling.
Gardaí will have the option of registering as postal voters or as ordinary electors. Under existing law, a member of the Garda Síochána who is registered as an elector is entered in the postal voters list and may vote only by post. Following requests by the Garda representative associations, section 14 provides that each garda will have the right to opt for registration as a postal voter, in which case he may vote by post only, or for registration as an ordinary elector, in which case he may vote in person at the polling station for his locality.
The possibility of publishing a list of additions and deletions rather than a full draft register each year is provided for. It has been represented that there would be advantages in publishing a list of proposed additions and proposed deletions rather than a full draft register each year. This would make it possible to see proposed changes at a glance and it should help cut down the cost of handling and printing. Section 16 enables the arrangement to be introduced on an experimental basis in selected areas. If successful, the arrangement could then be extended generally.
The Exchequer may, in future, meet three-quarters of the cost of preparing the register rather than one-half as at present. Under existing law, the cost of preparing and publishing the register of electors is borne equally by registration authorities and the Exchequer. This principle of shared costs will continue but under section 20 the proportion of costs borne by the Exchequer may be increased from 50 per cent to 75 per cent. Provision is also included in this section to allow the Minister to impose penalties on registration authorities for inaccuracies in the register or for delays in the preparation and publication where these are attributable to the registration authority.
The Electoral (Amendment) (No. 2) Act, 1986, introduced a system which enables disabled electors to vote in their own home. Under the special voting arrangement, a presiding officer accompanied by a member of the Garda Síochána conveys a ballot paper to the elector at his or her home. While the system is expensive and cumbersome to operate, it is an important facility for housebound electors and will be continued in force by section 17.
Existing law requires an applicant for entry on the special voters list to produce a medical certificate each year certifying the nature and extent of his or her physical illness or physical disability and indicating that the applicant is of sound mind and understanding and capable of comprehending the act of voting.
It has been represented that the requirement in relation to "sound mind" may give offence to some disabled persons and that the requirement of an annual medical certificate seems superfluous and could cause inconvenience and, possibly, expense to the electors concerned. The opportunity is, therefore, being taken to remove the "sound mind" requirement altogether and to provide that a medical certificate will be required only in the case of first application. Exceptionally, registration authorities will be empowered to require a fresh certificate, where they consider it necessary to do so, for example, if the special voter goes to live in a different registration area.
The Bill restates, with some amendments, the law relating to the registration of political parties which was first introduced in the Electoral Act, 1963. The working of the provision has been improved to give greater clarity and, in particular, the role of the appeal board has been clarified.
Under existing law "any doubt, dispute or question" may be referred to an appeal board consisting of a judge of the High Court, the Chairman of the Dáil and the Chairman of the Seanad. There is some doubt as to what this provision may mean in practice. For example, what would constitute "a doubt, dispute or question" and who may refer such a matter to the appeal board, and in what circumstances?
Under the Bill, the registrar, who is the Clerk of the Dáil, will publish his proposed ruling on any application made to him in Iris Oifigiúil and any person aggrieved by the proposed ruling may appeal to the appeal board. Each appeal must be accompanied by a deposit of £500 which will normally be refunded but may be forfeited if the appeal board consider the appeal frivolous or vexatious.
Specific power is given to the registrar to terminate the registration of a party if it has ceased to operate as such or is otherwise no longer entitled to be registered. There is provision for appeal to the appeal board against a decision of the registrar in this regard.
Certain changes are proposed affecting the position of the candidate at a Dáil election. Of these, the most important is the proposal that the deposit be increased from £100 to £500. As the House is aware, the fixture of £100 was fixed in 1923 and has remained unaltered. I understand that today's equivalent of £100 in 1923 would be over £3,000. While the deposit is being increased to a more realistic level, I do not consider it appropriate to increase it to a level which would reflect, in full, the change in money values over the past 70 years. As a corollary, to the deposit increase, the threshold for refund of a deposit will be reduced from one third to one quarter of the quota.
From the practical point of view, I think there can be no question about the necessity for a deposit, fixed at a reasonable level, or some other mechanism to provide a deterrent to frivolous candidates at an election. In a praliamentary democracy, a general election represents the most fundamental exercise of the democratic power of the people. By means of the election, the people determine the composition of the Parliament which will represent them, and the Government which will administer the affairs of the nation, over a period of up to five years. In an ideal situation, every candidate should be genuinely seeking election, prepared to undertake the obligations which a parliamentry mandate will confer, and prepared to play a full part in the business of Parliament, should that question arise. The electors should be allowed make their decisions without the distraction of nonrelevant candidates.
Our arrangements for nomination of candidates are probably the most open of any electoral system. Quite literally, any Irish citizen, irrespective of place of birth or residence, irrespective of any contact whatsoever with the constituency or the country, can nominate himself or herself as a candidate or be nominated by just one elector. It does not require a very fertile imagination to picture the confusion which could be caused at an election by swamping the ballot paper with the names of large numbers of candidates who are not serious about the election at a relatively small total cost. It may be objected that this has not happened to any great extent, and that is true, but we should not wait for it to happen. Prudence requires that sensible arrangements should be in force.
The free postage arrangement for the election address of candidates is retained under the Bill. However, there have been suggestions from various sources for changes in the arrangements in this regard and, to enable these to be developed, the Minister will have power to modify the existing arrangements, following consultation with interested parties and with the approval of both Houses.
A candidate who contests two polls on the same day will be entitled to include material in relation to each poll in his election address. A candidate who contests more than one constituency will be allowed free postage in one constituency only.
There will be minor changes in the requirements in relation to ballot papers. It is the general practice nowadays to give each candidate exactly the same amount of space on the ballot paper. The Bill will make this a mandatory requirement. The candidate's first name and surname will be printed in capitals rather than in ordinary type as at present. The requirement that the surname and party name, or the expression "Non-Party" as appropriate, should be in large block capitals is retained.
The practice has grown up in some areas, particularly in urban areas, of stationing large groups of canvassers outside polling stations in a last minute effort to influence voters. For some people this is part of the colour and excitement of the election process and is accepted as such. For other electors, however, having to run the gauntlet in this way is a cause of some anxiety. From the point of view of candidates and parties this last minute canvassing makes no sense. Far from influencing people, it is quite likely to antagonise them and to damage rather than improve a candidate's prospects.
To my mind the elector is entitled to go in peace to the polling station and cast his vote calmly and without pressure. Section 147 of the Bill will prohibit all political activity in the vicinity of a polling station for the duration of the poll and for half an hour before and after. The prohibition will apply to congregating, canvassing in any form, display of posters and use of loud speakers. The prohibition will apply at all elections and the penalties will be quite severe.
Under section 147 the prohibition will apply to any place within 50 metres of the curtilage of a polling station. Having regard to the different kinds of location in which polling stations are situated, this seems to me to be a reasonable distance. I am, however, receptive to suggestions on this point.
In regard to procedures in the polling station itself, no change of substance is proposed. However, the opportunity has been taken to amend the Presidential Elections Act, 1937, to provide that an elector employed by the local returning officer in connection with a presidential election may be authorised to vote at an alternative polling station. This will make good an omission in the presidential elections law which, unlike the other electoral codes, has no such provision at present.
The law providing for assistance to electors in casting their votes is retained without change. A blind or incapacitated elector may be assisted by a companion or by the presiding officer. At present an illiterate elector may be assisted only by the presiding officer. Senators may well have views on the distinction between the categories and I look forward to hearing them.
Parts XVIII and XIX, respectively, restate existing law on arrangements for the counting of the votes and restate the counting rules under our system of proportional representation. Two technical amendments in the counting rules will be of interest. The returning officer will be empowered to note on the ballot paper concerned his ruling on any "doubtful" ballot paper which is allowed as valid. This will ensure that the same papers do not come up for adjudication again at a later stage in the count, or on a recount. Their validity will be dealt with once and for all at the commencement of the count. The returning officer cannot, of course, interfere with any mark placed on the ballot paper by the elector. The provision will complement the provision in existing law which allows the returning officer to mark "rejected" on any ballot paper he rules to be invalid.
In section 122 the rule on the exclusion of two or more candidates together is clarified. The present rule in this regard is very restrictive. It creates the situation where the returning officer has to eliminate possibly three or four candidates individually even though they may have only a handful of votes between them. The new provision is less restrictive and, in effect, will make it possible to eliminate a number of candidates together if it is clear that none of them can secure enough transfers to save the deposit. The change will be helpful to returning officers and should help speed up the count.
I have already touched on the question of election petitions. As I indicated, existing law, which dates from the latter half of the last century, provides for two separate procedures — one involving investigation by election commissioners and the other a petition tried by two judges of the High Court. Both procedures are archaic and cumbersome and not really adapted to suit our proportional representation system.
The Bill repeals all the old statutes and sets out a new procedure under which Dáil election petitions will be tried by the High Court. The new procedure is modelled on that which applies in relation to European Parliament elections and which worked satisfactorily in the petition relating to the constituency of Leinster at the 1989 European elections. Under the new procedure a petition may be presented by any elector on any grounds likely to have affected the result of the election in the constituency, including non-eligibility of a candidate, electoral offences, obstruction of the election, mistakes or irregularity in the conduct of the election. A deposit of £5,000 must be lodged as security for costs. The petition will be tried by the High Court with right of appeal to the Supreme Court on a point of law.
Litigation to question the result of a Dáil election is fortunately quite rare. There has been only one such petition since the foundation of the State. This arose in the constituency of East Mayo following the 1973 general election, where a candidate sought, unsuccessfully, to have the result of the election in the constituency set aside on a number of techical grounds. Even though petitions are rare events it is appropriate that there should be an effective and efficient statutory procedure for dealing with them.
In relation to referendum petitions, section 170 provides that a petition questioning the result may only be presented with the leave of the High Court. This is to ensure that changes in the Constitution, which have been approved by the people and may be urgent, cannot be held up by a person presenting a frivolous petition. Before giving leave to present a petition the High Court must be satisfied that there are good prima facie grounds. Such leave has to be sought within ten days of the provisional results of the referendum being published.
Section 174 provides that a review of the Euro constituencies must be carried out before 1 December 1993. This will mean that the review will be related to the population figures ascertained at the census taken in April 1991 and that any changes decided on can be in place in good time for the next European elections, which will be held in June 1994. Future revisions will be carried out at ten yearly intervals, that is, in the interval between the publication of census figures and the holding of a Euro election.
The existing provision in the European Assembly Elections Act, 1977, required a review to be carried out by December 1989. In June of that year representatives had been elected to the Parliament for a period of five years and the available population figures, based on the 1986 census, were substantially out of date. It did not seem very sensible to carry out a revision in those circumstances and the Government decided to await the new census and have any changes in place for the next Euro elections in 1994.
Section 167 provides for a moratorium on the taking of opinion polls in the seven days immediately preceding the polling day at an election or referendum. This provision was included in the Bill in response to concern about the effect on voting which opinion polls can have in the run-up to an election or referendum. This concern cuts across party lines and, indeed, across national boundaries.
I would like to make it clear that the introduction of this provision implies no criticism whatsoever of the competence or integrity of the conductors of opinion polls. Indeed, I am happy to say that our experience in this country has shown these to be of the highest order. Neither is the provision intended to detract from the value of opinion polls themselves in the formation and development of policy and in providing a channel of communication between policy makers and the population generally.
The net point which I am inviting the Seanad to address is whether opinion polls in the days immediately preceding an election or referendum can have consequences detrimental to the genuine expression of the democratic will of the people. Not surprisingly, the provision has attracted considerable attention, particularly from persons involved in market research and the media. In addition to the public debate some individuals and organisations have been good enough to furnish their views directly and I would like to express my appreciation of this.
Since the publication of the Bill there has been a significant change in the perception of opinion polls. Originally the view was fairly widely held that opinion polls are neutral in effect and simply offer a snapshot of opinion at a given moment. Of course they provide a snapshot of opinion, but that is only part of the story. It is now generally recognised that polls have a significant effect on the manner in which electors vote and this was, in fact, confirmed by a poll published last June. Polls can and do produce a bandwagon effect. They provide the necessary information for tactical voting and vote management, practices which could be held to distort the genuine expression of the peoples' choice. They contribute significantly to the hype at election time. They put pressure on electors, candidates and parties and, to an extent, tend to set the agenda for the election, sometimes diverting the debate from the real issues to less relevant matters.
As I indicated earlier, a general election constitutes the fundamental exercise of the democratic will of the people and we should so arrange matters that the individual elector is supreme. It is his or her privilege — and duty — to decide between the competing policies, programmes and personnel. It is important that he or she should make up his or her own mind on issues considered important and should not be stampeded into a particular course because of what the polls say. It is important, too, that the elector's choice should represent genuine conviction and not represent a second guess based on what the polls are saying or the interpretation of them by sophisticated party managers.
It is the Government's view that opinion polls in the days preceding the statutory polling day are not conducive to the free and independent exercise of the franchise by the individual elector and that there should be appropriate regulation of polls during this period.
The provision contained in the Bill has been framed in a particular way and the approach adopted has obvious merit. That is not to say there may not be other approaches which would achieve the desired objective, perhaps equally effectively. I am sure Senators from all sides of the House will have useful and constructive suggestions to offer in this regard. I would like to assure the House that such suggestions will receive very careful consideration.
I believe that in this introductory statement I have touched on all the proposed substantive changes which will be of special interest to Members of the Oireachtas. I would like to draw attention to the explanatory memorandum circulated with the Bill which sets out in some detail the contents of the different Parts of the Bill and its Schedules. Should Senators wish me to expand on any particular aspect of the Bill, I will be happy to do so in concluding.
In my view, this is a good, constructive, worthwhile and timely Bill. I look forward to a useful and positive debate and I would like to assure Senators that if they have improvements to suggest which are sensible and appropriate they will not find me unreceptive.
