Seanad Éireann debate -
Wednesday, 20 May 1992

Vol. 132 No. 12

Death of Former Minister. - Electoral (No. 2) Bill, 1991: Committee Stage.

SECTION 1.

Dr. Upton

I move amendment No. 1:

In page 11, lines 32 to 35, to delete subsection (5) and substitute the following:

"(5) The Local Elections Acts, 1963 to 1991 and Part II in so far as it relates to local government electors and Part XXIII in so far as it relates to local elections may be cited together as the Local Elections Acts, 1963 to 1992, and shall be construed together as one Act.".

This is a technical amendment. We are trying to include the Referendum Acts, which are on their way to being signed by the President, for 1992 as distinct from 1991. Essentially all we are trying to do is to bring it up to date. It is a simple, straightforward technical amendment and I hope the Minister will be able to accept it.

Mr. Costello

This is a technical adjustment to assist the parliamentary draftsman or woman. The collective citation there — The Local Elections Acts, 1963 to 1991 — refers to the existing Acts in place at present, terminating with the Local Government Act, 1991. Once this Bill is passed, it will be the 1992 Act. What is required is a proper citation that will reflect the addition to what will then be the Local Election Acts, 1963 to 1992.

Minister of State at the Department of the Environment (Mr. Wallace)

As has been outlined, this is a technical matter. This was a 1991 Bill at the time of its introduction. The collective citation of the Local Elections Acts was the Local Elections Acts, 1963. I have no difficulty accepting this amendment.

Mr. Foley

I want to support the point made by Senators Upton and Costello.

Mr. Costello

I am not absolutely clear on that. We already have the collective citation, which is the Local Elections Acts, 1963 to 1991. We will be adding to that a new Act. At present it is a Bill; but it will be a new Act as of 1992 and it is not part of the existing citation. We are not enlarging on the citation if we do not extend it to the year of establishment of the Act, which will be 1992.

Mr. Wallace

When enacted the up to date citation will be the Local Elections Acts, 1963, to 1992. I do not think there is any real difficulty with it. I accept the amendment.

Amendment agreed to.

Dr. Upton

I move amendment No. 2:

In page 12, lines 1 to 5, to delete subsection (6).

Essentially, this is an old fashioned amendment. It is that the Act would come into operation as soon as it is passed as distinct from the Act coming into operation when an appropriate order is made by the Minister. The difficulty in relation to that is, as I understand it, that the Act could be passed and the appropriate order may not be made, which would leave us in a very difficult and ugly political situation. We wish to avoid the possibility that this Act may become law without making of the appropiate order to bring it into force.

Mr. Wallace

Section 1 (6) provides for the bringing into operation of the Bill by means of a commencement order or orders to be made by the Minister. It allows for the entire Bill to be brought into operation at the one time and for different sections of it be be brought into operation on different dates. Amendment No. 2 proposes to delete subsection (6) which would mean that the Bill would come into operation immediately on its enactment. A provision along the lines of subsection (6) is a standard provision in major legislation to allow different provisions of the legislation to be brought into operation when suitable circumstances arise.

In the case of this Bill it is envisaged that the core parts such as those dealing with the conduct of Dáil elections, arrangements for the poll, counting of votes and electoral offences will be commenced as soon as possible After the enactment of the Bill. However, in the case of certain sections of the Bill it will be essential to have some flexibility in relation to a commencement date. For example, the Bill proposes a new time schedule relating to the registration of electors. This new timetable must be brought into force to coincide with the preparation of the new register. Otherwise we could have a situation where an election or referendum might have to be held on the basis of a register which is not prepared in accordance with the law then in force. The possibility of an election or referendum held in such circumstances being challenged in the courts cannot be discounted. I think, the House will agree that the provisions of subsection (6) are essential to allow the new enactment to be brought into force in an orderly manner.

I ask the Senator not to press this amendment.

Dr. Upton

I understand the Minister's concern and the points he has made to illustrate his argument are quite reasonable. However, this Bill will be an important Bill from a political point of view and the possibility exists that if it became politically expedient the Minister may desist from making the appropriate order to put this Bill into operation. I can envisage political circumstances where that would be most undesirable and would pose threats to democracy. I agree with some of the points the Minister has made but some protection should be built in to ensure that when this Bill is passed the key political part will come into force as soon as the measure has been signed by the President.

Mr. Wallace

I assure the Senator it is the intention to ensure that the bulk of this Bill will come into operation as quickly as possible. There are practical difficulties which I have already outlined and I feel there is no need to pursue this amendment. It is the intention to enact as much of the Bill as possible as quickly as possible.

Mr. Costello

I accept the sincerity of the Minister's statement. Unfortunately, as the Minister said, it is standard practice with all legislation that the making of orders implementing various sections is left to the discretion of the Minister. It is bad policy to leave the implementation of a part here and a part there of any legislation to the whim or a Minister. It may not be the Minister who introduces the Bill. A Minister may go out of favour, not to mention out of government at any time. While the present Minister may have the best of intentions, implementation is too important a matter for the Oireachtas to allow it to remain undecided. We should be more circumspect in ensuring that when legislation is passed we have fixed terms for its implementation. While it is valid to argue that certain parts should be implemented at certain times, those could be specified. Here it is left entirely to the whim of the Minister. That will remain an unsatisfactory situation.

Dr. Upton

If the provisions in the Bill governing how behaviour in the vicinity of polling stations will be controlled become law before the next election there will be important financial and electoral considerations concerning the amount of money which will be spent at polling stations, the manner in which political parties will conduct elections and the manner in which resources available to different candidates will be used. If this part of the measure is implemented most political parties will probably spend more time calling directly to their supporters and may lead to different behavour patterns. That is an important political consideration, especially for parties that may not have much money to spend on polling day. It will certainly change the rules according to which elections are conducted. We must not get into a political argy-bargy in relation to the highly sensitive political parts of the Bill which should not be included if they are not going to be implemented immediately on the passing of this Bill.

Mrs. Honan

I ask my colleagues on the other side of the House to commend the generous spirit in which Deputy Wallace has commenced to take amendments. As for discretion or rights of certain Ministers in the future, they apply to all legislation at all times — we are more careful about local government and electoral Bills because we are all elected persons. I do not have any trouble with section 1 (6) of the Bill.

Dr. Upton

Is this because Senator Honan will not be standing again?

Mrs. Honan

I intend to be here for a long time. I was here before the Senator and I hope to be here after him.

Dr. Upton

I hope to get into the Dáil.

Mr. Costello

I am certain he will put in a good colleague in his place.

Mr. Wallace

We intend to implement the bulk of this legislation as quickly as possible. Fears that have been expressed are without foundation. I am concerned only with aspects of the Bill that cannot practically be put into operation immediately. That is why I ask that the amendment not be pursued.

Dr. Upton

I am reluctant to accept the assurances given by the Minister. I do not doubt his good faith but Ministers change.

Amendment, by leave, withdrawn.

Section 1, as amended, agreed to.

SECTION 2.

Dr. Upton

I move amendment No. 3:

In page 13, between lines 25 and 26, to insert the following definition:

"prescribed" means prescribed by regulations made by the Minister;.

Mr. Costello

This amendment is similar to our first amendment seeking to improve a technicality in the substance of the Bill. We ask the Minister to include the word "prescribed" and the definition that it means "prescribed by regulations made by the Minister." We have the interpretations of all other items but not of the word "prescribed". In section 3 it is stated that "the Minister may make regulations prescribing any matter...". Section 3 allows the Minister to make regulations but there is no definition of the word "prescription". It would normally appear in the drafting of the Bill and appears to have been overlooked in this case. I ask the Minister to include an interpretation of the word "prescribed" in the Order which is an additional to the Bill.

Mr. Wallace

This amendment proposes to insert in the interpretations section of the Bill a definition of the word "prescribed" as used in the Bill. A definition of this kind is normal and will, I believe, be found in most, if not all of our electoral codes. The definition proposed is a standard one and I have no problem with it. However, the provision is unnecessary in this Bill. The expression "prescribed" standing alone, is not used in the Bill. I refer, for example, to section 46 (2) on page 38 where it says that the nomination paper shall be in the form prescribed by the regulations made by the Minister. Instead of referring to the prescribed form the manner in which the form will be prescribed is spelled out. As the provision provided for in this amendment is unnecessary the amendment should be withdrawn.

Amendment, by leave, withdrawn.

Section 2 agreed to.

Section 3 agreed to.

NEW SECTION.

Mr. Costello

I move amendment No. 4:

In page 14, before section 4, to insert the following new section:

"4.—Every order made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made.".

This amendment proposes that every order be laid before each House of the Oireachtas. Section 1 (7) states: "An order made under subsection (6) shall be laid before each House of the Oireachtas as soon as possible after it is made". That should apply to all orders and not only to certain orders as in section 1 (7). In section 8 (6) (b) there is a proposal that the draft order be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each House.

This Bill prescribes two different practices for the laying of orders before the Houses of the Oireachtas. In one instance the order is laid before each House of the Oireachtas and in another instance we only get an opportunity of perusing the draft order without seeing the final order. In the interest of synchronising policy and practice we should have a uniform approach as contained in our amendment.

Mr. Wallace

This amendment proposes the insertion of a new section to provide for the laying of every order made under this Bill before each House of the Oireachtas as soon as may be after it is made. While such a provision is standard in most legislation, it would be inappropriate in this Bill. Section 3 already provides for the laying of regulations before each House of the Oireachtas as soon as may be after they are made. In the case of orders to be made under this Bill, the individual sections specify the procedure to be adopted in relation to the making and publication of the order. It is not necessary to proceed with this amendment.

Mr. Costello

That is not a satisfactory reply because it does not address the point I made. Two different sorts of practices have been adopted and while both are described it does not mean that one is correct and the other not. I am asking for a standard practice in relation to all orders made under this legislation and I cannot understand why the Minister is not prepared to grant that. Final orders are published and made available to the public. It would seem from the Bill that we are only going to get the final form of some orders and the draft form of others without an opportunity to see the final form before publication. That is not good enough for the Oireachtas. The Minister should standardise the manner in which every order will be laid before this House so that we will see each in its final form.

Mr. Wallace

The more important orders will be made in draft and laid before each House of the Oireachtas. For example, section 8 provides that an order relating to the extension of voting rights at a Dáil election to citizens of a member state of the EC resident here must be approved in draft by both Houses of the Oireachtas before being made. In the case of an order made by the Minister under section 165 in relation to an emergency or special difficulty in relation to registration of electors or the conduct of an election, it is provided that the order should be laid before each House of the Oireachtas as soon as may be after it is made and may be annulled by either House. In the case of an order appointing polling day under section 96, the order must be published in Iris Oifigiúil as soon as may be after it is made. It goes without saying that it would not be appropriate that such an order should be annulled by resolution of either House of the Oireachtas. In the case of a general election, of course, the Dáil would already have been dissolved. As the provision proposed for insertion by this amendment is unnecessary I ask that the amendment be withdrawn.

Mr. Costello

My concern arose while perusing section 8 and examining the manner in which draft orders will be laid before each House. I wondered why the final order could not be laid before each House and whether that was a textual error and if the intention was that the draft order would be discussed by the House because it was so important but that the final order should then be presented to the House. I am not sure the Minister has covered that situation. He referred to a section where it is stated that the order should be published as soon as possible but that does not cover the entirety of orders. My concern is with the draft orders. We should have a single standard practice for dealing with all orders that arise under this legislation.

Mr. Wallace

The final order must be approved in draft form by the Oireachtas before it is made.

Mr. Costello

If the final order is approved in draft form it remains a draft statement; we do not have an official order. When that order is published as a statutory instrument, it is available in the Government Publications Office and to libraries. We are talking about procedure when we talk about a draft order; we are not talking about the final product. I am concerned that final orders may be available to the public at the same time as they are laid before the Houses of the Oireachtas in final form.

Mr. Wallace

It is a statutory instrument and will be published in the normal way. It complies with the regulation.

Mr. Costello

There is a loose statement here. Section 1(7) provides for the order being laid before the House of the Oireachtas as soon as possible after it is made. In section 8(6) all we get is the opportunity to peruse or to discuss the draft order but we do not get an opportunity to see the final order. It is the divergence of procedure that concerns me.

Mr. Wallace

In the Bill orders are graded according to importance. The most important require prior approval and less important are laid before the Houses and may be annulled. The less important orders are published in Iris Oifigiúil. It is clear that procedures are being adhered to as heretofore. We are spending time on an unnecessary amendment. The regulations are clearly laid down and procedures are being adhered to. The important sections are being covered here and the amendment should be withdrawn.

Mr. Costello

I am not satisfied. I accept the Minister's point that he is making a distinction between two types of orders. He is saying that the order indicated in section 1(7) is a minor order but in that section there are many important orders to be made. Therefore, because it is designated a minor order it will not appear in a draft form for debate. Then he says that major orders will appear in draft form for debate. In one case the final order is going to be put before this House and in another we will have only the draft order. We should take two procedures, one, where we debate the draft order and, two, where the final order is laid before the House for perusal.

Mr. Wallace

The final order must be in accordance with the draft approved by the House. It will be a statutory instrument at final stage. We are at variance here which is unnecessary. The procedures are clear and we are adhering to them.

Mr. Costello

I grant we cannot go much further on this now but I am unhappy with the manner in which it is stated in the Bill. There is scope for improving the statement and for improving the process of putting orders before this House. All orders should be introduced here in draft form with an opportinity to debate them and the final order should also be laid before the House. I will not press it any further but I am not withdrawing the amendment.

Amendment put and declared lost.

Sections 4 and 5 agreed to.

SECTION 6.

An Cathaoirleach

Amendments Nos. 5, 6, 8 and 17 are related and may be discussed together.

Mrs. Hederman

I move amendment No. 5:

In page 14, to delete lines 39 and 40, and substitute the following definition—

"‘elector' means, as the context may require, a presidential elector, a local government elector, a Dáil elector or a European elector;".

With all of these amendments my purpose is the same. Since they are a symbolic gesture and are not of great importance I hope the Minister will accept them. I ask that when the Minister mentions presidential, Dáil, European or local government elector that he gives more status to the local government elector. The same principle informs the other amendments so I will speak on them all at the same time.

I believe, as I am sure the Minister believes, our Constitution's words, that power comes from the people. The people are all-important and the authority nearest to the people is the local authority whether county council, urban district council or whatever. It is to local authorities that people in the first instance cede their power. They ask the local authority to carry out certain functions when they elect representatives to it. Functions may include the provision of street lighting or the running of the local park. The national Parliament, while important, is undoubtedly further removed from the people.

I have put the presidential elector first because the President is the head of State and is all-important. The head of State, in my reckoning, is not included with the Dáil, European and local government categories of elector. I object to the fact that the European elector is mentioned before the local elector. Local authorities were there long before the European Parliament was ever thought of; my local authority dates back to the 12th century and to denigrate them to the lowest position is unfortunate.

Politicians from time to time speak of power devolving to local authorities. To devolve means to hand down. These politicians feel that power belongs to them and gratuitously they will hand it down to a lower level. That is not the way I see it. Power belongs to the people who freely elect local authority members or members at national level and give them power to carry out certain functions for them. I dislike the word "devolving" and never use it because it contains an unjust implication.

No other country in western Europe is as arrogant as ours or treats local democracy with such contempt. The Fianna Fáil manifesto promised better local government and better national government and therefore the Minister should accede to my request. It is symbolic and not of great significance but it would indicate that the Minister thinks more of local authorities than he appears to at present.

Pól Ó Foighil

Ba mhaith liom tacú leis an mír seo. Cé nach bhfuil ann ach siombal, tá sé tábhachtach i gcás na tíre. Tá an-chuid cainte faoi láthair maidir leis an Eoraip faoi chumhacht a bheith ag gabháil "bottoms up", aníos ón íochtar go dtí an barr. Ní cóir an focal "áitiúil" a fhágáil ag deireadh an liosta.

Mr. Wallace

I assure the Senator I have the highest respect and regard for local government. It is an area close to my heart and I am sure I speak for all Members of the House.

The purpose of the amendments is to change the order in which reference is made to the various categories of electors in Part II of the Bill. The objective is to place references to local government electors ahead of references to Dáil electors and European electors. The Bill provides for four categories of electors — presidential, Dáil, European and local government. These are referred to in ascending order of size commencing with presidential electors, the smallest category consisting of Irish citizens only and ending with local government electors which include all residents irrespective of nationality and citizenship. The order in which reference is made to these parties was selected by the parliamentary draftsmen. It is a clear and logical order and there seems to be no practical reason we should depart from it.

In an Act of the Oireachtas the meaning of a provision is not affected by its position in the statute. Placing a provision before or after does not add to or detract from the meaning or the effect of the provision. The draftsman seeks to follow an order which is logical, consistent and convenient. The statute is a severely practical document. Its purpose is to set out the intentions of the Oireachtas, in plain language. It does not and cannot concern itself with signals, images or prestige. The effect of the amendments would be purely cosmetic. They would make no change in substance, they would not clarify meaning in any way and would replace a clear logical order by one which does not seem to have any obvious logical base.

I would ask the Senator to consider withdrawing her amendment.

Progress reported; Committee to sit again.