I welcome the Minister to the House. Amendments Nos. 34 and 35 are related and will be discussed together.
Electoral (No.2) Bill, 1991: Committee Stage (Resumed).
Debate resumed on amendment No. 34:
In page 26, subsection (6), line 21, to delete paragraph (b).
—(Senator Upton.)
We are anxious that both paragraphs would be deleted. Paragraph (b) talks in terms of political parties not having their names registered if they are unduly long. That is a matter which seems to be left to the discretion of the registrar without any guidelines as to what would be appropriate, or inappropriate, in relation to the name of a party being too long. I am puzzled that the Minister does not feel able to specify a maximum length for the name of a political party. I think that would be a simple thing to do either in terms of the number of words which would be appropriate or the number of characters, if we are to get into the computer jargon.
I am not particularly happy with the idea of having such a matter specified at all, because further on in the Bill I understand it specifies that the amount of space which will be given for the name of each party, candidates and so on will be the same. You will, therefore, have a limitation placed on the amount of space which will be available for any candidate or any party. It would not bother me too much if somebody wanted to make a speech about the name of their party, because the amount of space which will be available will be quite small. Accordingly, the size of the print will need to be very small if the number of words used are excessive. For that reason it will, as it were, limit itself — in other words, invariably there will be a balance. If people are going to take advantage of funny names and if it becomes excessively long, then obviously nobody is going to take any interest in it. It seems to me that one of the guiding principles in relation to the names of political parties, and the business of getting across political messages and so on these days, is that you keep things short, crisp and to the point rather than dragging them out and seeking to labour the point. For those reasons I do not believe this paragraph is necessary in the Bill.
In relation to paragraph (c) the idea seems to be to preclude parties from using names which relate to a specific area, and so on. I cannot see any great problem with that. I do not see any difficulty with some party being labelled the Munster Farmers' Party or the Connacht Potholers' Party. What is the problem? If a party labels itself as a provincial party, then almost by definition it is self-limiting. If it restricts itself to, say, Connacht, Cavan, Munster, Clare or Cork, then you have automatically excluded the other parts of the country and, accordingly, it is going to limit itself. I cannot see why they should create any fundamental problem.
I also do not see any great problem about political parties, if they wish, being able to designate themselves as being specific or exclusive to one area. I think that is legitimate. I believe that all politics are, in the words of Mr. Tip O'Neill, local politics and if people want to play the local angle, that is all right. Almost every political party plays the local angle in their literature and in the process of getting their message across. For those reasons I do not see why these two paragraphs are included in the Bill. I do not think they are necessary, nor do I think the Bill would be damaged if they were excluded.
I support the points made by Senator Upton. What we have here are examples of fussy legislation, regulations which have very little point in reality. If we are devising legislation it is important to keep it as much to the point as possible.
On the two proposals made by Senator Upton and his colleagues, in the first case I think the question of a party's name being unduly long does not make a great deal of sense. This presumably is there for a purpose, but have there been examples in the past of attempts to register parties with names that are too long? I do not think there were. There was the example of our good friend and colleague, the former Deputy, Councillor, Senator Seán D. Christian Democrat Dublin Bay Rockall Loftus, and whatever else was the issue of the moment. I do not think it is a matter of great moment, but it is fussy and could lead to problems of definition, with the returning officer wondering what is unduly long and what is not. It is sloppy and fussy.
On the point of regional designation, as I understand it that could lead to a situation where, in the event of some sort of Irish unity or a federal state where this legislation might apply, the Ulster Unionist Party might find itself unable to so describe itself. Maybe I am wrong in this — and I see a head over there indicating I am wrong — but in the future of the European Community regional issues could become more important. There could be a Connacht regional movement or a Munster regional movement and I do not see that it is the business of what we are doing today, to exclude that type of designation.
There seems to me to be no reason the Minister would not accept these two amendments to delete paragraphs (b) and (c). It is a woolly statement to put into the legislation that it "is, in the opinion of the Registrar, unduly long". "Opinion" and "unduly" are very vague terms. There are no criteria for establishing the opinion of the registrar. As is specified later in the Bill, there can be an appeal, but you would be appealing an opinion.
This is a very sloppy way of giving a power that, I am sure, the registrar does not want and it is not going to improve the legislation or improve what is on the ballot paper. The form of the ballot paper prescribed in this legislation gives each candidate identical space. It does not matter how long the name is, the point is to ensure that the print is reduced sufficiently to allow the name to fit in the space. If the space is uniform, you are dealing with the matter appropriately, otherwise you are leaving it to the opinion of the registrar.
Then you must be concerned with what constitutes "unduly", what is less than unduly, what is more than unduly, and so on. I believe the legislation would be much improved by deleting paragraph (b).
In relation to paragraph (c), again I think it does not serve any purpose and it is difficult to see what problem it is seeking to obviate. What is wrong with any person in any party having the nomenclature referring to a region, a local area or a national area in any part of the State? What is wrong with a candidate like Declan Bree of Sligo-Leitrim describing his party as — and in fact it is duly registered as such — The Marxist Leninist Party Sligo-Leitrim? I understand that is the registration at present because it is limited and the party has not expanded. Perhaps in the future it will expand, but it has not as yet. There are parties in the Dáil who do not have any representation in certain constituencies throughout the country. They do not even contest elections in those constituencies. Effectively, they are regional parties. They have a certain local base or they have a national base.
Anybody who is an Independent could likewise be expected to be operating on a regional basis. In local elections you find the same situation, where somebody takes up some local issues and describe themselves in relation to the causes they have taken up. A good example was quoted by Senator Manning of a former TD who had a very long-winded name referring to a specific issue and a specific area. I do not see how we are improving the situation by seeking to eliminate any such reference.
Amendment No. 34 provides the deletion of paragraph (b) subsection (6), which provides that a party shall not be registered if in the opinion of the registrar its name is unduly long. The procedure for the registration of political parties was introduced by the Electoral Act, 1963, to enable the names of political parties to be entered on ballot papers. It is clearly necessary for practical reasons to have a mechanism in place to ensure that party names are kept to a reasonable length and do not occupy an inordinate space on the ballot paper. As Senators are aware, the surname of the candidate and the name of the registered political party of which he is a member are printed in large capitals on the ballot paper.
There are two ways in which the length of party names can be regulated — by placing a statutory limit on the number of words or letters going to make up the name or by giving the registrar discretion to reject a name which he regards as too long. The latter way was chosen in 1963 and has operated satisfactorily. Successive registrars have adopted a very reasonable approach and have allowed the registration of parties with names of fairly substantial length. As far as I know the length of the name has not been an issue in any appeal to the Appeals Board. The House will accept that this provision, which is a restatement of existing law, is necessary and must be retained. Any party aggrieved by a decision of the registrar may, of course, appeal to the Appeals Board under subsection (9).
Amendment No. 35 proposes to delete paragraph (c) of subsection (6), which requires a party operating in relation to part only of the State to include a reference to that part of its name. Paragraph (c) complements subsection (2) (b) and subsection (6) (b) (ii), which provide for registration of a party for the purpose of contesting an election in a part of the State specified in the application. Subsection (4) (e) requires the registrar to enter in the register a reference to the fact that the party is organised to contest an election in a part of the State only. It is reasonable that if a party is registered to contest elections in a part of the State only, this fact should be reflected in its name. Failure to include such a reference could lead to misunderstanding at election time.
Essentially, we are concerned here with local parties, organised perhaps in a single county or constituency, normally with the objective of contesting local government elections only. Such parties would normally have no ambition to spread their organisation into other areas and it would be possible to have sister parties with similar names in other parts of the country. Typical examples would be the Donegal Progressive Party and the Cork City Ratepayers party. We could envisage, for example, a Cork or Tipperary Progressive Party being set up to contest elections in those areas. That explains the reason for my rejection of the amendment.
In relation to the first part of the Minister's reply, in many ways he makes the case we are making. He says this provision has been there since 1963, which is almost 30 years ago. There has been no difficulty; so here we have a provision in an Act to solve a non-existing problem. I do not see why this is necessary and I certainly agree with what Senator Manning has said that this is fussy stuff, it is busy legislation; it is almost legislation for the sake of legislation.
I am puzzled as to the Minister's reservations about the Donegal Progressive Party or the Cork and Munster Hurling Final Party or one of those things. I cannot see why that makes any great difference. I am at a loss to understand why names of that sort should present any problem. If these parties form a loose alliance, so be it. As Senator Manning said, if parties are going to be organised on the basis of regional consideration — and that certainly would look like being a realistic possibility, given the way Europe is developing and the greater emphasis which will be on the regions — I see no problem with that either.
The final point concerns the history of small parties, organised either on a regional or on a sectional basis. Sooner or later these parties get subsumed into the existing big parties. In the history of Irish politics small parties come and go; in many ways their presence fills a useful role, but then they fade away. I do not think we should be getting too worried about the nitty-gritty of this kind of thing. We would be far better off to let these things take their course and in due time they will work themselves out quite satisfactorily.
I do not wish to waste the time of the House on this, because it is a long Bill. I agree with Senator Upton on the two points. I would like to ask the Minister: have any problems arisen since the 1963 Act came into effect which have been sorted our by this legislation? Has there been a reason for it historically?
First, local parties would not necessarily be confined to contesting local government elections. For example, I understand that the Independent Socialist Party, Sligo-Leitrim, have contested Dáil elections. Such a party might well have ambitions to extend its organisations eventually to the whole country, in which case the local reference would be dropped. We could also envisage parties contesting Euro-elections in a single constituency only. We already have a non-party MEP both in Munster and Connacht-Ulster. Clearly the MEPs concerned are supported by a substantial organisation within the constituency concerned. It is not beyond the bounds of possibility that these organisations might at some stage seek registration as a political party. Far be it for me to suggest a name for such a party. The Munster Independent Party, for instance, might be a possible choice. To cater for the kind of situation I have mentioned, the retention of paragraph (6) (c) would be essential. Again, I suggest that the amendment be withdrawn.
In reference to the Minister's reply about the Sligo-Leitrim Party, obviously when it became a national party it decided to change name to the Labour Party and that is what is is called at the present time.
I want to ask the Minister what would be the position of the present local government candidates who were elected in Cavan, as the Cavan Pothole Party. That was their official title. Were they entitled to use that in local elections and are they entitled under this Bill to continue with that title?
In relation to paragraph (b), the point has been well made that it is inadvisable to make provision in legislation for something that is not yet a problem. If it has never been raised on appeal or if nobody has ever contested the length of a party title, why should we curtail the possible length of a title, especially if a long title has never been a problem for the register? Why create a problem by introducing a prohibition into the legislation?
The Minister said that there were two options open to him, one, to curtail the number of words, and two, to leave it to the discretion of the registrar. I suggest a third option. We might allocate a certain space for the party name and restrict all party titles to that size of space. We are concerned that one person's name, occupation and affiliation does not occupy a more prominent space on the ballot paper than another's. It would create a problem to allocate a larger area on the ballot paper to one party. In this opinion candidates with long party titles would be obliged to reduce print size to comply with the space allocation. I would like the Minister to respond to this suggestion.
Let me argue the other side. Space restrictions are legislated for at present and presumably those applying to register names are aware of the limitation and are inhibited from putting down long-winded names. Second in Ireland and England in recent years there has been a tendency for candidates with a view to personal publicity, perhaps even of a commercial nature, to adopt extravagant names.
It has not helped them much.
It has not helped their political or commercial hopes but it has been tried. Some of the candidates who parade themselves on the British election platform, perhaps in the midst of a serious by-election, look ridiculous. I have no objection if people want to give themselves extremely long-winded names but we must appreciate that this trend could be abused if there is no restrictive provision in the legislation.
Some Senators think that the purpose of subsection (c) is to prevent parties from using a reference to a particular area in their name. The purpose of this subsection is to allow this; I think there is some misunderstanding here. We have had no problems until now because the law prevented long titles. The Cavan Pothole Party, for instance, are not registered but they are at liberty to apply for registration if they wish.
I accept the Minister's reply in relation to subsection (c) but my point is an important one. We have two ill-defined statements before us. One decision rests on an opinion. The Bill does not say what the reason for the opinion might be, nor does it specify the criteria by which the registrar has to make up his mind. Second the registrar must ensure that the title is not unduly long, a vague and ill-defined requirement. It is impossible for anybody to make a proper decision on that basis. Whatever opinion the registrar expresses the first time with automatically determine his opinion the second time. The requirement is too vague and difficult to define satisfactorily.
Senator Conroy referred to the present trend towards long-winded names. That trend has been evident in Britain and we have seen how unsuccessful names like "Screaming Lord Sutch" and the "Loonie Party"——
The Monster Raving Loonie Party.
In Ireland candidates who adopted what might be described as long-winded names have been credible candidates. I am not aware of any such party, apart from one in Sligo called the "All Night Party" that was out of line. The candidates who went forward with long-winded names represented serious issues and have been relatively successful with the electorate. We should not legislate for a problem which exists, outside the country only. If the space available to candidates is the same in all cases, there will be no need to rely on the opinion of the registrar in this ill-defined way.
I am in sympathy with the sentiments expressed across the floor. It does not matter if we have the Monster Raving Loonie Party or the Irish equivalent as Gaeilge on the ballot paper. There is a great deal to be said for diversity of that nature and a little levity occasionally at elections would not go astray.
The legislation affords the registrar a welcome degree of discretion. Far too often we bind our officials in red tape which does not allow them move in any direction but there is scope within this Bill for common sense to prevail and an appeals procedure if somebody is dissatisfied with the ruling of the registrar. The Appeals Board will consist of a Judge of the High Court, the Cathaoirleach of the Seanad and the Ceann Comhairle of the Dáil, or their deputies in their absence. The question of party titles or candidates names is satisfactorily handled here and there is sufficient flexibility to allow anybody who wants to stand in an election to do so. If somebody has the necessary money for a deposit and wants to stand at an election he or she has a democratice right to do so.
Senator Dardis alluded to the point I was going to make, and that is to remind the House that there is a proposal in this legislation that anybody who contests an election would first have to come forward with a deposit of £500. If anybody wants to indulge in an election gimmick by running a stunt or taking a funny name, it will cost them £500 a go, and that should be a significant restriction.
Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 19; Níl, 6.
Tá
- Bohan, Eddie.
- Byrne, Sean.
- Cassidy, Donie.
- Conroy, Richard.
- Dardis, John.
- Fitzgerald, Tom.
- Haughey, Seán F.
- Honan, Tras.
- Hussey, Thomas.
- Keogh, Helen.
- Kiely, Dan.
- Kiely, Rory.
- Lanigan, Michael.
- McGowan, Paddy.
- Mullooly, Brian.
- O'Brien, Francis.
- Ó Cuív, Éamon.
- Ryan, Eoin David.
- Wright, G.V.
Níl
- Costello, Joe.
- Kennedy, Patrick.
- Manning, Maurice.
- O'Reilly, Joe.
- Ross, Shane P.N.
- Upton, Pat.
Tellers: Tá, Senators E. Ryan and Fitzgerald; Níl, Senators Upton and Costello.
Question declared carried.
Amendment declared lost.
Amendment No. 35 not moved.
I move amendment No. 36:
In page 26, subsection (7), line 29, after "(4)" to add "and as to any other change in the particulars referred to in subsection (4), and these changes shall be registered by the Registrar subject to this section.".
This is a straightforward, simple amendment. We are seeking to make provision for the updating of various changes in relation to officers of political parties and so on. We want to broaden it so that all the items covered in section 25 (4) would be included under changes that have to be forwarded to the registrar. This amendment provides that any change in the address of the party's headquarters would have to be notified to the registrar.
Amendment No. 36 proposes to expand subsection (7) to provide that a registered political party will also keep the registrar informed of any other changes in the details registered under subsection (4). I consider the inclusion of such a provision inappropriate. Any change in the name of the party, the type of election which it is registered to contest or, where appropriate, the part of the State in which the party proposes to operate would represent substantive changes. Major changes of this kind would require a new application to the registrar. The inclusion of a provision along the lines of that provided for in the amendment could in effect allow a party to reconstitute itself entirely without going through the process of registration. Thus, we could be setting up an escape route by which a party could by-pass the registration procedure and frustrate the objective of section 25. It is a matter for the party in the normal course to keep the registrar informed of a change in the address of the party headquarters and it is not a matter that needs a statutory base. I ask the Senator to withdraw the amendment.
The Minister has addressed one item in subsection (4) and that is the question of the name of the party and he has suggested that a name change refers to registration and this could be a device for avoidance. I am not sure if that is possible. We are talking here about informing the registrar of any substantive changes that take place. This amendment is designed to facilitate the registrar rather than to impede him. There can be no problem in relation to subsection (4) (b), the address of the party headquarters. It seems reasonable if one informs the registrar of the address of the party headquarters that if that address changes, as may happen, the registrar should be informed of same. There is no sense in a registrar sending out literature to a party headquarters that is no longer in existence. All that is referred to in subsection (7) is the name or names of the officers. There is no reason all of the other subsections should not be referred to.
I do not see the Minister's point in relation to this being some sort of secret device to avoid registration. One has to register and it should make the procedure simpler if political parties are obliged to inform the registrar of a change in the name of the party. I am puzzled by the Minister's response.
It is a matter for the party to keep the registrar informed of changes of address of the party headquarters and not a matter for legislation. With apologies to all concerned, it might help to give a concrete, but admittedly far-fetched, example of what might happen. Again, I refer to the Donegal Progressive Party. They could send a simple letter to the registrar saying "We have decided to drop the word Donegal from our title and wish to be known in future as the Progressive Democrats Party." What I am saying is far-fetched but it could happen. I ask that the amendment be withdrawn.
The Minister has not explained anything. Why should there be a single renewal and the registrar informed of one change only? The Minister has specified all of the matters that must be entered in the register under subsection (4): the name of the party, the address of the party headquarters, the name or names of the officers and the type of election for which the party is registered and finally where a party is registered as organised to contest an election in a particular part of the State, a reference to that fact. It seems eminently reasonable that where there is a change in any of those items that change should be referred to the registrar. I cannot see how the registrar knowing the identity of the deputy chairman, the treasurer, committee members or officers would be of more advantage than knowing where the party resides. If a substantive change is made surely supplying information to the registrar would be of assistance towards taking steps to prevent any unauthorised action by the party, although I do not see why a party should take misleading action. I am puzzled as to why the Minister should single out the names of the officers and nothing else.
The concerns which the Minister has outlined appear to me to be covered in subsection (10) where the registrar is entitled to make any inquiries necessary to satisfy himself about the bona fides of registered political parties. Perhaps these concerns might be covered under that heading.
Obviously the officers will change from time to time and the returning officer must know who is entitled to sign certificates of political affiliation. This is the reason the Bill specifically requires the names of people to be communicated to the registrar. The other aspects of the amendment are substantive and I cannot accept them.
Amendment put and declared lost.
I move amendment No. 37:
In page 26, subsection (9) (a), line 43, after "board" to insert "(to be known as the Political Parties Registration Appeals Board)".
This is a minor technical amendment. We want to name the Appeals Board as a means of simplifying the procedures and making the business of dealing with appeals and the Appeals Board easier.
In relation to amendment No. 38 we are seeking to expand the period of time which would be allowed for somebody to lodge an appeal. It is limited down to five days, which seems very short. We are suggesting that that be increased to 21 days, which seems on the conservative side and very reasonable. I cannot see why the Minister feels it necessary to limit the period for making appeals to five days, which is a very short period. That might create difficulties for small, badly organised parties who are trying to get off the ground and may not be particularly well funded or well informed about legislative provisions. I feel the 21 days is a reasonable compromise and it is fairer than limiting the appeals period to less than a week.
I support Senator Upton. Five days may be unduly short. Could the Minister see his way to extending the period? Perhaps he would look at it between now and Report Stage and come back on it. Given that the decisions are published in Iris Oifigiúil, which may not always be easily accessible and available, I support Senator Upton.
Amendment No. 37 proposes that the Appeals Board shall be known as the Political Parties Registration Appeals Board. It would not seem to be either necessary or appropriate to give the Appeals Board a statutory name. The board would be an ad hoc body to be constituted from time to time to deal with appeals as they arise. It would not be a corporate body, it would not have a separate legal existence apart from its role in relation to appeals under this subsection. It would, of course, have no staff, no registered office, would hold no property, would not be required to keep accounts, to furnish annual reports or hold regular periodic meetings. It would, in fact, have none of the characteristics normally associated with a State board.
Reference to the Appeals Board is made only in a limited number of subsections. It is clear from the context that reference to each case is to this Appeals Board and not to any other body. The formal title is, therefore, unnecessary. It is normal under electoral law for boards of this type not to be given a formal title. For example, under the presidential election law provision is made for a tribunal consisting of three judges of the High Court to which objections raised at the ruling on nominations may be referred. The tribunal is not given a formal title in that legislation.
The Seanad Electoral Panel Members' Act, 1947, provides for an Appeals Board to hear appeals from the decision of the Seanad returning officer in relation to the preparation of the register of nominating bodies. No formal title is conferred on that Appeals Board. I hope the House will agree that a formal title for the Appeals Board is neither necessary nor appropriate, and I ask the Senator to withdraw the amendment.
Amendment No. 38 proposes to extend the period allowed for lodging an appeal against the registrar's decision from five to 21 days. I would like to remind the House that there is a minor change in procedure involved here. Existing law does not provide for a formal appeals procedure as such. Under the 1963 Act, any doubt, dispute or question which might arise in connection with the register of political parties would be decided by the Appeals Board. Because this provision is rather vague and unclear it was decided in the present Bill to make specific provision for appeal against the registrar's proposed ruling on any application. The procedure involved is that the registrar will publish his proposed ruling and five days will be allowed for appeal by any person aggrieved.
Incidentally, it should be noted that the right to appeal is not restricted to the party concerned. Any person, aggrieved by the proposed ruling, may appeal within five days. We have to consider the circumstances in which the application for registration might be made. It takes time to establish and organise a political party and it takes time to assemble the evidence likely to be necessary to support the application for registration. Clearly the party will be anxious to have the application decided as quickly as possible so that they will be able to participate in any forthcoming election, and in our situation an election can occur at any time.
If this amendment were accepted, there would be a built in delay of 21 days between the making and the coming into effect of the registrar's ruling. Thus, we could have a situation where the registrar might rule that the conditions for registration are fulfilled and there is no appeal. However, the ruling could not come into effect for 21 days and the applicants would not be able to participate as a party in any election arising during this period. The new party could miss out on what might be for them a vital election. I am sure the House will agree that this would be neither fair nor reasonable and the House will not, therefore, accept the amendment.
I accept what the Minister said, that this will be an ad hoc Appeals Board but there is no good reason an ad hoc board should not have a name. It may not be a permanent board but it has what might be called a permanent set of officers on the board. The constitution of the board is established in subsection (c). Irrespective of whether it is an ad hoc board, its constitution is established under the legislation and there is no good reason that it should not have its name established under the legislation as well. The fact that the board will meet only from time to time, does not mean it should not be properly described. In fact, it is loosely described here — the registrar may appeal to an appeals board. In my view, it would be better to give the board a name.
I remember a similar point being raised when we were abolishing the death penalty and introducing another offence. At that time there was no name given to the offence. In a case like this, it is important that the board be given a descriptive title rather than being referred to simply as an appeal board. I still think that the balance lies in giving it a title.
In relation to section 25 (9) (a), I believe what is wrong here is that we are talking about the five days following the date of publication of Iris Oifigiúil. The problem about that is that it is difficult to see very many people actually perusing the Iris Oifigiúil. The timescale is determined by a particular publication that is not read on a regular basis. It is not like a notice in the national or local newspapers. It is determined by a publication that has a very limited distribution. While the registrar may notify the applicant prior to that, nevertheless the time of the appeal is prescribed by reference to that publication which is not likely to be read by the applicant anyway. I regard this as unsatisfactory. If we are determining it in the context of Iris Oifigiúil, the timescale should be greater than is specified here.
I do not think it is important what we call the board or whether we call it anything. I have listened to both sides of the argument and you could toss a penny as to which answer is the better. I do not think it makes any great difference.
I would have slightly more sympathy with the case for some extension of time. I know the applicant will be informed and anybody who is serious about forming a political party should be in a position to move straightaway because there could be legal complications about preparing a case and so forth. A little more flexibility might be employed here. Perhaps the Minister might look at that between now and Report Stage to see whether there is room for flexibility. On the other point of whether the board has a name or not, with respect we are in the realm of what the French call pederastie des moustiques which you can translate for yourself.
I do not support amendment No. 37 but it concerns me that we are proposing legislation for so many years in the future setting down a limitation of five days but if the Minister is as positive as he seems to be on the five days, so be it. I merely make the point there it seems a very short period of time.
I wish to repeat again that if this amendment were accepted there would be a built-in delay of 21 days between the making and the coming into effect of the registrar's ruling. Thus, we could have a situation where the registrar might rule that the conditions for registration are fulfilled and there is no appeal. However, the ruling could not come into effect for 21 days. The applicants would not be able to participate as a party in any election arising during that period. A new party could thus miss out on what might be for them a vital election. This certainly would be contrary to what may be the spirit of the amendment.
The trouble with the Minister's reply is that you can play that one either way. You can also say that five days is a very short period of time to give anybody who has been aggrieved in relation to a decision the opportunity to prepare a case. I accept that the Minister has made a reasonable point on the other side of the case but it can be played either way.
With regard to the necessity to have the party registered in a very short space of time and the whole appeal procedure followed through, it is difficult to see that being of great consequence. The Minister is simply talking about that very short period in the run into an election most of which is fairly easy to anticipate. If a political party are simply putting their act together in the weeks before an election, maybe they are not too serious about their business anyway.
I consider that on the balance of the two sides of the argument the time made available to get the appeal together should be extended and that should be done, particularly in the interest of fairness and in the interest of people who would feel aggrieved at a decision made. It would give them an opportunity to get their case worked out. Five days seems to be a very short period of time to do that. If they have to obtain legal advice and various other types of back-up advice, then five days is a very short period.
There are two points in this. One is in relation to the length of time the person will have from the time the registrar informs them. Presumably they will be informed in writing. The other is from the point of time that the Iris Oifigiúil will be published. Obviously, there are different timescales in each of those. I do not know how regularly the Iris Oifigiúil is published. I do not know how many people read it and to what extent that is a valid point of reference to use. The Minister might look at that again. Whether or not an applicant has been informed and has been informed by registered post, would seem to me a more proper point of reference rather than the second point of reference, which seems to be indeterminate, which is whenever the Iris Oifigiúil is actually published.
If we take the Iris Oifigiúil as the point of reference, because that is the only one that is specified in terms of a timescale, then we must take that as the one that has been referred to specifically and formally in this legislation. Our arguments in relation to that are valid. Five days is far too short to prepare adequately a case in the event of an appeal. It is a very serious matter. What is wrong with making it 21 days? If an election comes up obviously it is in the appellant's interest to ensure that he goes about the business much more expeditiously. In the normal run of things that person will have prepared the case and put it together in a thorough and comprehensive fashion. Should an election occur in the meantime obviously they would want to prepare their case much more quickly. Then the onus is on them and they are not likely to abuse it. The Minister's arguments are very tenuous.
Amendment put and declared lost.
I move amendment No. 38:
In page 26, subsection (9) (a), line 43, to delete "five" and substitute "twenty-one".
Amendment put and declared lost.
I move amendment No. 39:
In page 27, subsection (9) (c), line 7, after "Seanad)" to add "; and where a House is dissolved, the outgoing Chairman or Deputy Chairman shall act under this section".
Essentially, this is a fairly technical amendment. It deals with making provision for appeals taking place when the Dáil and the Seanad are dissolved. In particular, that would be a concern during the period of the dissolution of the Dáil when the Houses would be dissolved.
I am quite sure this amendment is not needed. It is clear that Senator Costello is a new Senator.
It was Senator Upton.
I beg the Senator's pardon.
I am waiting to hear Senator Honan's words of wisdom before I speak.
The Cathaoirleach's position stays in place until the new Seanad is in place and I understand the same applies to the Ceann Comhairle. Because I happened to hold the office at a particular time and was taken away from a Seanad campaign when my colleagues on the panel——
Acting Chairman
I do not think that is relevant.
It is relevant. I would like the Minister to put in this section "he is unavailable, he is absent, he is not fulfilling his duties". I assure the Minister that I have not given up hope of getting back in the Chair for my last term, so perhaps he would insert "she" as well. I rarely go down that road because I have no trouble with "chairman". I insisted on being called chairman when I was Cathaoirleach and also in any council on which I sit. However, I have trouble accepting that the Cathoirleach of this House must always be "he".
Under the Interpretation Act "he" includes "she". Section 25 (9) (c) relates to the constitution of the Appeals Board. The board will consist of a Judge of the High Court who will act as chairman, the Chairman of the Dáil and the Chairman of the Seanad and where either is unable to act on account of illness, absence, etc., the relevant Deputy Chairman.
Amendment No. 39 proposes to insert a provision in subsection (9) to make it clear that where the Dáil is dissolved the outgoing Chairman or Deputy Chairman, as the case may be, shall act under this subsection. The inclusion of a provision along the lines proposed in the amendment is not necessary because the matter has already been considered and decided by the Supreme Court.
The judgement was given in the case of Loftus v. Attorney General, 1979, Irish Reports, page 221. The case related to the application for registration as a political party by a group calling itself the Christian Democratic Party of Ireland. The application for registration was rejected by the registrar. The group appealed to the Appeals Board constituted under section 13 of the Electoral Act, 1963. The board, composed of a High Court Judge, the Chairman of the Dáil and the Chairman of the Seanad, upheld the registrar's decision having heard the case on the day following the dissolution of the Dáil. The applicants appealed to the High Court and subsequently to the Supreme Court. They included in the grounds of appeal a claim that the board was invalidly constituted because since the Dáil had been dissolved there could be no Chairman of the Dáil. The Supreme Court held that the duties and functions of a Chairman of Dáil Éireann may be discharged and performed by him in the interval between the dissolution of one Dáil Éireann and the election of the Chairman of the next Dáil Éireann.
The Chairman of the Dáil has, of course, other constitutional and statutory functions to discharge during a dissolution of the Dáil. He is, for instance, a member of the Constitutional Commission which acts in place of the President during absence or incapacity and he has statutory functions in relation to the staff of the Houses of the Oireachtas. Specifically, in relation to his functions as a member of the Appeals Board, the Supreme Court has not made it clear that he can act in that capacity following dissolution of the Dáil and for that reason the proposed amendment is therefore not necessary.
I thank the Minister for his clarification. However, it does not, mean that we should not insert into our legislation what has been decided by the Supreme Court. Obviously, if it was in the legislation there would be no grounds for the appeal. In a Supreme Court decision, it would be proper to bring in the substance of what was decided. I say this because there is a greater likelihood of appeals, applications for registration of parties, etc. during the interim period when the Dáil and Seanad are dissolved.
The fact that the Supreme Court decided that the duties and functions in this area should be exercised by the Chairmen of the Dáil and Seanad is not an obstacle to introduce it into the law of the land. If anything it would make it more desirable that it should be made law.
May I just add to what Senator Costello has said that the Minister did not refer to the Leas-Cheann Comhairle in the Dáil or the Leas-Chathaoirleach in the Seanad having to act in the eventuality of either the Ceann Comhairle or the Cathaoirleach being ill I wonder what would happen in those circumstances if somebody decided to lodge an appeal? Does the judgment of the High Court extend to the Leas-Cheann Comhairle or the Leas-Chathaoirleach acting in those circumstances?
There seem to be significant differences in the position of the Cathaoirleach and the Leas-Chathaoirleach in relation to the Constitution and so on; the same thing holds true in relation to the position of the Ceann Comhairle and the Leas-Cheann Comhairle. In the case of the Leas-Cheann Comhairle, it is fair to say that he is a practising politician like the rest of us, whereas the Ceann Comhairle is above politics. The same can be said of the Cathaoirleach who, in the exercise of his functions, is effectively a non-practising politician. Both are restricted in terms of getting involved in the nitty gritty of politics. That is not true of the person who holds the position of Leas-Chathaoirleach. That person is the same as ourselves in terms of how he behaves. In relation to the Minister's reply, will he deal with a set of circumstances where either the Leas-Chathaoirleach or the Leas-Cheann Chomhairle would find themselves engaged in making a judgment on an appeal during the period of the dissolution of either House?
The amendment is also undesirable because if the proposed provision is included in this Bill, it may well have the effect of raising questions about the chairman's capacity to discharge functions under other statutes following a dissolution of the Dáil. The Supreme Court have put the matter beyond doubt. Again, I want to say that the amendment is unnecessary. In relation to the point raised by Senator Costello, by extension, the judgment would also apply to the Leas-Cheann Chomhairle and the Leas-Chathaoirleach of the Seanad, as Senator Honan has already mentioned.
I am a little lost as to why the judgment by extension would be applicable to the Leas-Chathaoirleach or the Leas-Cheann Comhairle. I would like to know what is the basis for that statement, if that question has been decided by the courts or if it is simply a legal opinion which the Minister has given us and which may be open to dispute.
The fact is that they would be acting in place of the Ceann Comhairle of the Dáil or the Cathaoirleach of the Seanad at the appropriate time.
On the point I raised earlier, the Minister replied there was no necessity to introduce such a provision seeing it had been decided by the Supreme Court. The point I was making is that since it was decided by the Supreme Court that would be all the more reason to incorporate it into the law of the land. This is an extremely important point. This point was in some doubt, and since we are making provision for the people who shall constitute an appeals body, it would be important that we would cover all areas. As I said, the fact that it was decided by the Supreme Court would confirm the propriety of this provision being covered by the outgoing chairpersons of both Houses.
Acting Chairman
Is the amendment being pressed?
Will the Minister reply to my last point?
I have covered the points as adequately as I can.
Amendment, by leave, withdrawn.
I move amendment No. 40:
In page 27, subsection (9), lines 8 to 18, to delete paragraphs (d) and (e).
This amendment deals with the amount of money which has to be deposited in the event of an appeal being lodged. The sum involved is £500 and would be a fairly significant amount for a small party trying to get organised with limited funds. We are asking to delete these paragraphs. I do not think we are likely to see many vexatious appeals being lodged in these circumstances. In any case it would be a simple matter to dispose of those appeals. I do not understand why this large amount of money is required in the event of somebody deciding to lodge an appeal against the decision of the registrar. Therefore, I ask the Minister to accede to the withdrawal of these paragraphs.
This is an important amendment and I referred to this issue on Second Stage. Why is such a substantial deposit necessary? Under this legislation only those who can afford it will be able to appeal. Basically, it is antiethical to the principles of democracy; finance should not be the criteria by which one has full access to democracy. A deposit of £500 will effectively limit and restrict a person's right of appeal and anything that does not facilitate the practice of democracy to its fullest extent should be eliminated from our legislation. I ask the Minister to consider a smaller amount or an alternative criterion for appeal.
I support the basis of the amendment, I do not believe a lack of money should prohibit a person from making an appeal. On my reading of the section it would appear that unless the appeal is frivolous or vexatious, the money will be returned. Obviously, there is a need for some amount of money to be lodged in order to deter joke parties from registering but I assume that, provided there are reasonable grounds for appeal, the money will be returned. Perhaps a smaller deposit of, say, £100 would be an acceptable figure. If a party did not have £100 they would not go very far.
They would not be going too far anyway.
Not all parties would have funds from which to draw to make an appeal; not all parties are big and many of them do not have wealthy benefactors.
Acting Chairman
Senator Cosgrave, without interruption.
Some parties do not get £75,000 from their benefactors.
Some parties have been known to manufacture their own money.
Hear hear.
(Interruptions.)
Money should not be a bar to an appeal. Will the Minister clarify if the deposit will be returned if it is proved that the appeal is not vexatious or trivial?
The purpose of the deposit in respect of an appeal is to discourage frivolous or vexatious appeals. This type of provision is common in most appeals systems. The deposit will be refunded in every case unless the Appeals Board decide that the appeal is vexatious or frivolous, in which case the deposit will be forfeited.
Perhaps I should again explain how the system will work. Application for registration will be made to the registrar. He will make the decision, inform the applicant and publish his proposed ruling. During the five days after publication, any aggrieved person may appeal. If there is no appeal, the ruling becomes final at the end of the five days. I would stress that any appeal may be lodged by any aggrieved person, not just by the applicants. The appeal could be made by anybody, including a large political party already registered, possibly the Labour Party. Let us suppose the registrar rules that the party should be registered——
Why bother with the £500?
Acting Chairman
The Minister, without interruption, please.
Let us suppose there is an immediate election. Days or even hours could be critical and there would be a strong temptation for a disaffected person to lodge an appeal, simply to delay and perhaps prevent the party contesting the election as a registered party. The £500 deposit is aimed at precisely such a situation, it is fixed at a high level enough to constitute a deterrent against frivolous appeals but not so high to present a serious obstacle to genuine appeal. I again stress that the deposit will be refunded unless the Appeals Board are satisfied that the appeal is frivolous or vexatious; in the case of any serious appellant there would be nothing to fear. I again ask that the amendment be withdrawn.
I assure the Minister that the Labour Party are already a genuine political party as defined in the rules, and therefore, I do not think we would have any problem with registration.
The Labour Party have always been genuine.
That is true, and as a party we do not have access to large funds for appeals purpose.
What about the trade unions?
Acting Chairman
Senator Costello, without interruption, please.
Their contributions are modest — sensible and modest.
Acting Chairman
The Senator should address the Chair.
I always do, but others who are not entitled to address anybody are addressing the House.
Acting Chairman
Senators should speak to the amendment.
The point we are making is that finance should not be an obstacle to making a valid appeal. We should remember that the people most likely to make an appeal are those who are starting off in politics. It is not the established political parties who will be making appeals under this legislation, but a small body of people who are trying to establish themselves and are unlikely to have access to funds or be in a position to put down a deposit in advance of an appeal. It is not a question of paying the money at some future date; this is the sine qua non, the first step to be taken. The legislation makes provision for an appeal but then places a financial obstacle in the way of such appeal. That is not in the interest of democracy.
This is a reasonable amendment; the deposit should not be as high as £500. Inherent in this Bill is the presumption that those who are poor are likely to make vexatious or frivolous complaints, because for a large political party £500 would not make any difference. I do not like the tenor of the provision. It goes against the basic principle of allowing for an appeal, which is to facilitate the registration. This obstacle is needless and unnecessary.
Senator Costello's final point is a worthwhile one, namely, those who will be put off by the £500 deposit are people who will be poorly organised with little resources. In other words, the people organising small political parties — in most circumstances for very genuine reasons — will not have the money. If we are talking about the people who have access to plenty of money, that is another day's work. On that point, I would say to Senator Honan that the amount of money subscribed to the Labour Party are published in the annual report and, indeed, the amount of money which we get from the unions is also published in their annual report. We do not need tribunals to expose those figures.
Acting Chairman
That is not relevant.
Amendment put and declared lost.
I move amendment No. 41:
In page 27, subsection (10) (a), line 27, after "following" to insert "notice to the political party and".
This amendment proposes that when the registrar takes a decision to cancel the registration of a party that decision would also be notified to the party. The party should also be informed that the registrar is carrying out appropriate inquiries and so on. We believe that the people at the centre of such an inquiry should be notified that the inquiry is taking place so that at least they will have an opportunity to consider their position and make contingency plans for whatever steps they feel are necessary to protect their rights and interests.
Section 25 (10) provides that where it appears to the registrar of political parties that a party is no longer entitled to be registered he shall, following such inquiry as he thinks fit, publish notice of his intention to cancel the registration of the party. That party, or anybody else aggrieved, may appeal to the appeal board under subsection (9) against the proposed cancellation. Subsection (10) (c) provides that the registration of the party will continue until an appeal has been decided.
Amendment No. 41 proposes that the political party involved shall be notified of the intention to cancel the registration. Amendment No. 42 proposes to delete subsection (10) (c) which provides for the registration to be continued until an appeal is decided. The question of notification is already provided for in the section as drafted. Subsection (10) (b) states that the provisions of subsection (9), which relate to the ruling on applications, shall apply also to the cancellation of the registration of a party under subsection (10). Subsection (9) includes a requirement that the applicant must be notified by the registrar of his proposed decision and also gives an aggrieved person the right to appeal. Thus both right of appeal and the right to be notified would apply in relation to any proposals to cancel the registration of the party. Amendment No. 41 is not therefore necessary and I suggest that it be withdrawn.
I am not clear about what the Minister has said. We are proposing to insert an amendment that prior to the inquiry taking place notice would be given to the political party. Before any decision is taken by the registrar he should ensure that his inquiry, his collection of information, should be as broad as possible. It would be much better to ensure that if the registrar considers that a particular registered party should no longer be registered, he should inform that party and ask them to respond to his queries before a decision is taken and then it would go on to an appeal. Obviously an appeal is allowed on foot of the decision, but this is not the best way of going about it. The best way of going about it is to ensure that there is the broadest consultation in advance and that the party in question have the opportunity to appeal — considering that this is a serious matter. I can imagine Fianna Fáil, Fine Gael or the Labour Party finding that the registrar had decided in his wisdom that none of these parties, or one or other of them should not be registered, that he would go ahead and conduct an inquiry without informing them in advance and then give them the right to appeal his decision. That is where the Minister is proposing to put the cart before the horse. It would be much better to inform or to give notice to the political party in advance.
Whatever about the Labour Party, the registrar will not have any difficulty finding Fianna Fáil or Fine Gael. To put any of the three parties in that category is not in the spirit of the section——
I hope so, but we never know.
The registrar will make every appropriate inquiry, including contacting the party if they still exist. Every effort will be made to communicate with the relevant party before a decision is taken.
Amendment put and declared lost.
I move amendment No. 42:
In page 27, subsection (10), lines 33 to 35, to delete paragraph (c).
This amendment seeks to delete subparagraph (c). It arises to some degree because of a puzzlement with the whole process described under this section of the Bill and, in particular, the item in subsection (10) (a) which talks in terms of the registrar giving notice to parties of his intention to cancel the registration of the party. I would have thought that it would be far more appropriate to deal in terms of the registration being cancelled rather than the intention to cancel. That sort of terminology seems to imply that he may change his mind. A decision has not been reached, it is simply an aspiration, a proposal which does not amount to very much. Then we are talking about appeals not being affected by appeals under this section. It is for those reason that we have put down this amendment.
Amendment No. 42 proposes to delete subsection (10) (c) which provides for the registration to be continued until an appeal is decided. If the amendment were to be accepted, the effect would probably be that the registration of a party could be cancelled even before an appeal relating to the cancellation has been decided. The purpose of paragraph (c) is to ensure that the status quo will be maintained pending a decision on any appeal against cancellation. I believe this is the correct approach and I suggest that the amendment be withdrawn.
That is not my interpretation of this. As stated, if we delete subsection (10) (c) that does not in any way interfere with the existing registration of the party. This particular paragraph is totally unnecessary. When we were discussing the amendment to deal with the situation that would operate if both House were dissolved, the Minister stated that it was unnecessary, because the Supreme Court had decided the matter. However, I felt it was a proper provision to have in this legislation.
In this case it would seem that subsection (10) (c) is totally unnecessary. We are talking about an intention to cancel the registration of the party. There is nothing here that suggests that a party should be deregistered pending a proposal. There is nothing, as far as one can interpret, in anything that has gone before that would put the registration of the party in doubt. First this is rather vague draftsmanship affecting a pending appeal. The Bill states that the registrar will publish in Irish Oifigiúil notice of intention to cancel the registration of the party. The language is vague and the provision is unnecessary because it only deals with the proposal in relation to appeal, it does not deal with a decision. The registration status of a party would not be affected and the legislation would be improved by the deletion of this subsection.
The purpose of subsection (10) (c) is to protect the party concerned.
Amendment put and declared lost.
Acting Chairman
Amendments Nos. 43 and 44 are related and may be discussed together.
I move amendment No. 43:
In page 27, subsection (11), line 37, after "copy" to insert "and to take a copy thereof on payment of a fee not exceeding the reasonable cost of copying".
This amendment seeks to deal with a practical difficulty in relation to people who want to inspect registers. When they call into the appropriate offices, permission is given to inspect the register and to take notes, but they are not allowed to make copies. In practice, life is made very inconvenient for people in these circumstances. When people are particularly interested in an item in a register they are forced to take extensive notes from it. They will do that but it will take a good deal of time and unnecessary effort. We are suggesting that people be allowed to take copies of registers which would simplify the whole process. I cannot see any difficulty about that. If, for some reason, it is considered inappropriate that the person should be allowed to take copies of the register that is also covered in this section because it talks in terms of "such times and subject to such conditions as the Registrar considers appropriate." If there is a reason copying should not be allowed then that is also provided for but I would like to see a provision written into this section which would allow people to copy documents rather than continuing the old-fashioned way before photocopies were invented and came into widespread use.
In relation to amendment No. 44, we are concerned about the term "such conditions as the registrar considers appropriate". We are suggesting that in addition to that the registrar should be required to specify those conditions by regulation and the reason we are doing that is simply related to the possibility that the registrar may feel that such conditions are appropriate to some groups of people and not appropriate to others. We would like to see a set of circumstances which would entail whatever is appropriate would be uniform. Under this section of the Bill it is possible that the registrar would allow people to inspect the register at his discretion.
The section is very broad and allows for the registrar to act in an arbitrary fashion. Generally speaking, I do not think there is any problem in relation to how people such as the Registrar of Political Parties would behave, but it is no harm to have this copperfastened in legislation to ensure that the registrar's actions are even-handed and fair to everybody. Essentially, that is what this amendment proposes.
I am getting slightly worried about the status of this so-called party that Senator Upton has been advocating; I do not know if it augurs well for his own party in the future that they are going to be much smaller.
We have been here longer than any of the parties and that should never be forgotten.
Not alone will some parties not be able to afford the £500 or £100 in respect of an appeal, but even ten pence for photocopying will be an obvious deterrent. It is hoped that this register will be available for inspection, but perhaps the Minister will say exactly where it will be available. It used to be available here. Will it be available in the Government Publications Office or in the offices of local authorities? If someone outside Dublin wants to establish a party or obtain information in that regard, will it be possible for him or her to inspect the register without making a journey to Dublin? Obviously, we should use common sense. I do not know how many people will want to inspect the register, but I presume we are only talking about a couple of sheets of paper with the name of the party and probably the address of the headquarters or secretary. Where is it kept at present and is it possible to have a copy in the offices of local authorities or county councils?
I am sure Senator Upton was referring to all the parties, he was not referring to specific political parties. He is concerned about the bona fides of all parties and that maximum information is made available to the public. What is the nature of this information? The Bill states that the registrar shall maintain a copy of the register of political parties at his office. There is nothing secretive about political parties. Any party that is a registered political party surely has nothing to hide. Why should the registrar maintain it at his office? The Bill states that he shall permit any person to inspect such a copy. That means the person must come into the office to inspect it as though there is something confidential about the register of political parties. Once you are registered as a political party, you are an open constitutional political party contesting elections. I am sure in the nature of political parties they will want people to know more about them rather than less. It seems unduly restrictive that anybody should have to come to the office of the registrar to inspect a copy of their political party's credentials or, indeed, to see the nature of the opposition. The obvious thing would be to have a copy of the register of political parties available in the Government Publications Office which would allow everybody to get a copy or that a copy would be available by post. Surely anybody should be entitled to get a photocopy on payment of a reasonable fee not exceeding the cost of copying the data. Is there any good reason why that should not be the case? That entire section smacks of something from a different era and a different type of state, not from the open democracy we are talking about.
Amendment No. 44 proposes the deletion of the words "considers appropriate" and the substitution of "specifies by regulation". The same general tenor runs through the entire section which refers to "the opinion of the registrar", what he, an individual person, considers appropriate, subject to no criteria whatsoever. I am casting no aspersions on the people who hold that office, but it seems that the system should be made more open. These matters should not depend on the whim or the discretion of the individual registrar but, on the rights of citizens.
Amendment No. 44 would remove the cloud of secrecy that seems to hang over this entire section in regard to the wording and in the manner in which the register of political parties can be consulted.
I would like to add something to what Senator Costello has said. It seems to me as if this whole section is prehistoric. Where any of the professions keep a register of their members, one can simply go and buy it for a few pounds. It is fairly straightforward. As Senator Costello said, political parties are in the business of drawing attention to themselves rather than being obscure, I cannot see any great difficulty in the register being made available for a few pence in the Government Publications Sales Office. The number of political parties in the State at any one time will be quite small. The document should be available for less than a pound at present day costs. I do not understand the reasoning behind this whole section. I am beginning to wonder if it is just there because the people who draft this legislation put in such provisions in a reflex manner, for no good reason other than this is the way it was always done. I was under the impression that this Bill was meant to tidy up all the Electoral Acts going back to the foundation of the State and I would like to see that type of restrictive terminology, which is totally unnecessary, removed from it. If somebody wants to come in and take a copy of a page or two of this register, I cannot see any reason why they should not be able to do so.
Section 25 (11) provides that the Registrar of Political Parties shall maintain a copy of the register of political parties at his office and shall permit any person to inspect the copy at such times and subject to such conditions as the registrar considers appropriate. Amendment No. 43 proposes to insert a provision permitting any person to take a copy of the register on payment of a fee not exceeding the reasonable cost of copying. I understand that this provision is a standard one in legislation relating to the inspection of public documents and I agree that it would be appropriate to include it in this section. I am, therefore, accepting amendment No. 43.
Amendment No. 44 proposes that the conditions subject to which the copy of the register of political parties may be inspected, under this section shall be specified by regulations made by the registrar. The amendment proposes to delete the words "considers appropriate" and substitute "specified by regulation". So far as I know, it is not the practice to provide in legislation for the making of regulations by an official. Except in very exceptional circumstances, this function is normally reserved to the Minister and even then the power is usually hedged by conditions such as the requirement to lay copies of the regulation before both Houses, who may by resolution annul them. The situation for which this subsection provides is a fairly informal one, generally involving the inspection of a one or two page document, which would not warrant the making of a formal statutory arrangement. In the normal course it would be reasonable to expect that such an inspection would be agreed to during the normal office hours. I suggest that the amendment be withdrawn.
I welcome the Minister's decision to accept amendment No. 43. I hope he will continue in the same vein and accept others.
In relation to amendment No. 44, which refers to the registrar specifying a matter by regulation, that is not necessarily sacrosanct in terms of what we intended in this amendment. It could equally be dealt with by section 3, which states: "The Minister may make regulations prescribing any matter..." While the amendment has the effect of providing for the making of regulations by the registrar, the actual thrust of what we were saying is that the registrar should deal with matters on the basis of specified criteria rather than simply as he "considers" or on the basis of his "opinion". We did not really want the registrar to specify the regulations but we wanted them to be specified. They would, in fact, be best specified by the Minister under section 3.
The register will continue to be maintained in the Clerk's Office. People wishing to get information can call in and inspect it; indeed, they can write to the Clerk and look for the information which is mentioned in the Bill. What is in the Bill is a minimum requirement. The formality of regulations is not appropriate to what is a very simple situation. I think I have covered the points made and I hope the Senators are satisfied. I appeal again to them to withdraw the amendment at this stage.
Amendment agreed to.
Amendment No. 44 not moved.
Question proposed: "That section 25, as amended, stand part of the Bill."
We will not be opposing the section, but we had reservations about a number of aspects of it. I suppose the main one was the references on a number of occasions to the opinion of the registrar and to what the registrar considers appropriate. Delicate situations can arise. For example, subsection (3) (b) contains the words: "which is in his opinion — (i) a genuine political party". One person's genuine political party is not necessarily another person's genuine political party. The opinion of the registrar is something that could perhaps be more defined in relation to that matter. Likewise, subsection (6) (b) provides that a political party shall not be registered if its name is, in the opinion of the registrar, unduly long.
Thankfully, the Minister has accepted amendment No. 43. The powers of the registrar are too loose and we would have preferred to see them tightened up by the insertion of the words "as specified by regulation".
The other major area of concern is the insertion of an unnecessary financial obstacle to the exercise of democracy in relation to appeals. That does not facilitate political parties which are starting up. They may have very little funding while they are trying to get the show on the road. A party, for example, of the unemployed might first and foremost have to put down £500 before their appeal could be taken. We have certain reservations because we feel that our amendments would have improved the Bill considerably if they had been accepted. We welcome the fact that one of them has been accepted, but the section could have been improved further.
Question put and agreed to.
Sections 26 and 27 agreed to.
SECTION 28.
I move amendment No. 45:
In page 29, lines 43 to 45, to delete subsection (10).
This amendment seeks to delete subsection (10) which seems to be extraordinarily wide ranging in its scope. It says:
An election shall not be questioned on the grounds of any non-compliance with the provisions contained in this section or any informality in regard to polling districts, places or stations.
This raises the question, why the section is there at all, because there is no obligation to comply with it. It does not have any real teeth as far as elections are concerned because an election may not be questioned on the basis of non-compliance with any of the provisions of the section. One could argue that this section is of no real consequence since, in the last analysis, an election cannot be questioned even if none of the provisions in this section is adhered to. That seems to be a delightful form of legislation. Here we have a whole section — a full page — and then, with a delightful form of logic, we say the provisions in this section really have no relevance to the Bill.
This section plays an important part in the determination of how elections will be run, but, when push comes to shove, it does not count. That allows for all sorts of wonderful possibilities in relation to the location, opening and closing of polling stations, and so on. The organisation of polling, which is a very important part of the way elections are conducted will, in the last analysis, be of no consequence because an election may not be questioned on the basis of non-compliance with the provisions of this section. That leads me to wonder what is the purpose of this section if it is not to be some loose kind of aspiration or agenda, simply indicating that it would be a nice thing to happen, if it happens. This opens up a wonderful set of possibilities for those who, for their own political reasons, might feel that it was appropriate that some parts of this section would not be complied with.
Subsection (10) gives a licence to such people to disregard what is in this section because, in the last analysis, the section will have no impact on the election as the results cannot be questioned on the basis of non-compliance with any part of this section. I am amazed at such a subsection being included in a section because it says that, as far as the result of the election is concerned, nothing contained in this section will really matter.
This is a very important amendment. Subsection (10) is amazing, stating that "an election shall not be questioned on the grounds of any non-compliance with the provisions contained in this section or any informality in regard to polling districts, places or stations".
Everything that has been laid down in the section up to that point is now to be erased. An election will still not be questioned. On the one hand, there are strict regulations to ensure that the local authority establishes a scheme to divide up the county or county borough into polling districts, organise the polling districts and appoint a specified day. The Minister has to approve that scheme.
Subsection (10) provides, however, that even if none of that is carried out, the election is still not null or void. It is almost like the vote on the referendum on Maastricht which is null and void but which we are still going ahead with.
Acting Chairman
That is not relevant.
It is certainly topical. This subsection could mean that a person appointed as polling clerk could decide in the middle of the day that he had done enough, head off for lunch, have a tipple in the pub and decide not to go back to the polling station. That would constitute non-compliance of the provisions of the scheme which states the polling station should be open from 9 a.m. until 9 p.m. A polling clerk might even fail to open the polling station or a local authority might fail to make provision for an adequate number of stations.
Subsection (10) makes an umbrella statement that non-compliance, irrespective of whether it is of major or of minor importance, does not impinge on the validity of the election. That seems to be an incredible provision to put into legislation.
Amendment No. 45 proposes the deletion of this illogical provision. The provision as it stands is not fit to be in this legislation. We would ask the Minister to accept the amendment.
Subsection (10) repeats a provision in the existing law which makes it clear that any non-compliance with this section or any other informality relating to polling districts, polling places or polling stations, will not constitute a ground on which to base an election petition. Amendment No. 45 proposes the deletion of subsection (10). The effect of the deletion of the subsection would be that the result of an election could be questioned on the grounds that the provisions of a polling scheme in force for a constituency were not strictly complied with at the election.
The grounds on which a Dáil election may be questioned are set out in section 132 (5), page 77. The grounds specified are want of eligibility on the part of candidates, the commission of electoral offences, obstruction or of interference with or other hindrance to the conduct of the election or mistake or other irregularity which is likely to have affected the result of the election.
Rule 4, paragraph (3) of the Third Schedule, page 111, provides that no Dáil election shall be declared invalid by reason of a non-compliance or mistake if it appears to the High Court that the election was conducted in accordance with the principles laid down in this Bill as a whole and that such non-compliance or mistake did not affect the result of the election.
It is clear that the intention of the legislation is that a Dáil election would be set aside only on the gravest of grounds and only where those grounds actually affected results of the election, in other words, caused the wrong candidates to be declared elected. Subsection (10), which provides that an election may not be questioned on the grounds of technical non-compliance with the arrangements set out in a polling scheme, is part and parcel of this approach. It ties in, also, with section 94 (1), which provides that where, by reason of any difficulty, a polling station cannot be provided at a place appointed by the polling scheme, the returning officer may provide a station at some other convenient place.
To give a concrete example, the polling scheme may require a polling station to be provided in a particular townland, but the returning officer may then find that, for whatever reason, there is no longer a schoolhouse or other suitable public building in that townland, so he provides the station in another townland, perhaps a few hundred yards down the road. With subsection (10) in place, he can do this, safe in the knowledge that it cannot give rise to an election petition. The subsection provides useful protection for the returning officer in this kind of situation. It should therefore be retained.
The Minister, in his reply, spoke of technical non-compliance with the provisions contained in this section. It seems to me quite obvious that this subsection (10) says an election should not be questioned on the grounds of any non-compliance. Subsection (5) talks of reasonable facilities for voting. Under subsection (10) such things can simply be brushed aside. The whole thing seems to be very unsatisfactory and contradictory to the tone and tenor of the other subsections in this section.
I am still not satisfied with the Minister's reply because none of the other sections the Minister has quoted is as broad as this particular section. They refer to more defined restrictions and come within the ambit of reasonable compliance whereas reasonableness is not specified in regard to the quality of compliance here. In fact "any non-compliance" is the wording used, which is even broader than the technical non-compliance referred to in another section.
If a local authority is inadequate and careless in the provision of the scheme and it does not, for example, provide for sufficient polling stations and, as a result, people do not turn up or have no stations to turn up to, that is not a technical matter; that is a matter of carelessness. It means people do not have the opportunity to vote because there is no place for them to vote and it may be too late in the day when the error is discovered. I really think we should be more careful in how we absolve the people responsible for the scheme, the people operating it, or indeed the Minister, who is responsible for approving or modifying it. To have a catch-all escape clause here for all of those concerned is not good enough. We are trying to provide for close supervision of elections to ensure that no abuse takes place. Then we find that here we have a catch-all statement, which seems to be open to any interpretation, and no election can be declard invalid, no matter what level of carelessness or negligence has taken place in the carrying out of the duties described in the previous subsections.
I think it is reasonable that the matter referred to in subsection 10 should not be used as the ground for a petition. Informal arrangements made locally, possibly departing from a polling scheme, could not possibly affect the outcome of an election. I would assure the House, however, that local authorities and returning officers are expected to comply fully with the provisions of polling schemes enforced for their area. However, in an imperfect world, informal departures do occur in circumstances beyond the control of the local authority and returning officer. It is reasonable to provide for such a situation. I would ask the Senators to consider withdrawing the amendment.
I did not mean to get involved in this because I understand the Minister's point that it would create a hopeless situation if an election could be declared invalid on some relatively trivial ground. That should only be possible in serious circumstances, as the Minister outlined.
Let us look at the doomsday situation, however, how bad a situation could arise in connection with the holding of the election or something to do with the polling districts, the polling places and so on? In the situation outlined by Senators Costello and Upton, people could have to travel long distances to the other end of their constituency to vote, or a polling station might not open at all. One must legislate for a situation in which somebody wants to thwart the intention of the electorate. The Minister says those responsible are expected to comply with the polling schemes. What happens if they do not comply with the polling schemes?
I accept the Minister's point in relation to trivial non-compliance with the finer details of the provisions of this section. That is reasonable and understandable. I am not here to advocate the case that certain crank elements might want to make in relation to this matter, but subsection (10) says "An election shall not be questioned on the grounds of any non-compliance". There is no limitation; it simply refers to any non-compliance. This opens up all sorts of possibilities, such as those Senator Costello has alluded to, the possibility of people closing up polling stations at lunchtime simply because they want to go off and have had enough of it for that day; or, alternatively, not opening them up; or any other type of totally unacceptable behaviour. Those are my concerns. I also think it creates a certain type of environment and climate for the people who are responsible for these things. I do not want for a minute to suggest that in anything other than a tiny minority of cases there would be any problem, but the possibility is opened up; and if somebody decides, for his own good reasons, to ignore the provisions of this section, then it looks to me as if there will be very little comeback, at least in terms of the impact of that on the outcome of the election. There is the subsequent effect of that type of thing on the morale of people who would have voted but did not vote. All of those things are very important concerns and it is the sweeping generalised nature of this provision that we are concerned about.
I think I have given a reasonable explanation of the need for this subsection. It is designed to deal with technical informality. We can stretch our imagination as far as we like, but that is really all that is in question here. I would appeal for this amendment to be withdrawn.
I really do not think we can accept that, because that is not what the subsection says. It may be all right for the Minister to say that is what it is intended to do, but if that is what it is intended to do that is what it should say. The Minister quoted another section which referred to technical non-compliance. Here we are not referring to technical non-compliance; we are referring to any non-compliance. I could give a few examples. Section 28, subsection (1) provides for a local authority drawing up a scheme making provision for local elections and appointing a polling place for each polling district. If a polling place is not appointed for each polling district that will be serious negligence and non-compliance by the local authority with its statutory responsibility. That, to my mind, is not a trivial matter. That directly impinges on the ability of the citizen to exercise the franchise and I would regard that as a serious matter.
The Minister also said that his interpretation of his section is that it refers to cases beyond the control of those responsible but, as in the case of technical non-compliance, that is the Minister's interpretation. If it was stated here that it referred to technical non-compliance or that an election could not be questioned on grounds beyond the control of those statutorily responsible for drawing up the scheme, that would be fine. While the Minister may be anxious not to accept the total deletion of this subsection, though I think that is the best way to go, nevertheless I feel, and I think everybody on this side of the House agrees, that this subsection, as it is presented, is too wide. From that point of view I would ask the Minister, at least, to take it back and reconsider it for Report Stage. Perhaps he would be prepared to examine more carefully the absolutely escape clause that is given in this section for non-compliance by any of the people statutorily responsible for ensuring that an election takes place.
I have given reasoned arguments for this section. We are repeating existing law here, and I have nothing further to add.
Is the amendment being pressed?
Yes.
Question put: "That the words proposed to be deleted stand."
Vótáil.
The question is: "That the words proposed to be deleted stand." On that question a division has been challenged. Will those Senators calling for a division please rise in their places?
Senators Upton, Costello and Hederman stood.
As fewer than five Senators stood in their places I declare the question carried.
The names of Senators who stood will be recorded in the Journal of the Proceedings of the Seanad.
Amendment declared lost.
Question proposed: "That section 28 stand part of the Bill."
This section is fundamentally flawed. I will not reiterate all the arguments we made in the debate on the amendment to delete subsection (10), but the essential points remain. This section is fundamentally flawed as long as this provision non-compliance remains. It is far too sweeping, and we are opposed to it.
I have to reiterate what I said earlier: that the Minister would be wise to take this section back and have a look at subsection (10) with a view to introducing a less sweeping statement in that section. It is contrary to the tenor of the other related sections in regard to compliance with provisions. It seems to me to be an illogical step to take. You prescribe carefully how you are going to deal with the exercise of the franchise in terms of those who are statutorily responsible for drawing up the schemes to enable them to operate, but then you follow that up and say that all that may be disregarded and that no penalty or no questions will remain in relation to those responsible because of negligence or carelessness. I cannot accept that as a tenet of legislation.
Is section 28 agreed?
No.
Question put and declared carried.
Section 29 agreed to.
SECTION 30.
I move amendment No. 46:
In page 31, lines 32 and 33, to delete subsection (6).
This amendment is an anomaly in the legislation inasmuch as the appointment of returning officers for some constituencies is fixed — it will have to be county registrar and so on — but in other areas, particularly in the city of Dublin, the appointment of returning officers in some constituencies will arise because of the city sheriff appointing deputy returning officers, who will to all intents and purposes carry out the same function as the returning officer does.
The city sheriff, the county registrar, etc. are appointed under the Act. At the same time, the appointment of the deputy returning officers in the constituencies in Dublin will need to be approved by the Minister of the day. We do not think that is necessary or desirable. We feel that the Government should have confidence in the capacity of the returning officer for the city of Dublin to appoint the deputy returning officers. His decision in that matter should be taken on its merits and accepted rather than that these people should have to be approved by the Minister. In our experience they have been excellent and there have been no problems with any of them. I cannot see why it is necessary for the Minister to approve them. In any case, the returning officer, the city sheriff and so on is invariably a man of good judgment and I do not see why it should be necessary that he would have to look for the approval of the Minister to ratify the people he suggests. If anything goes wrong the ultimate responsibility comes back to the returning officer who, I am sure takes those considerations into account when making appointments.
The returning officer is an established person, the position is a fixed position and that person does not have to be approved by the Minister. Yet the person who is appointed by the returning officer as deputy returning officer must be approved by the Minister. It is an illogical situation that one official has to have the ministerial imprimatur and the more senior officials, to whom he is responsible, does not. It seems strange that we should insist here that the deputy should be approved by the Minister when the returning officer does not have to be. That is why we feel it is illogical to have this subsection and seek its deletion.
Amendment No. 46 provides for the deletion of subsection (6). This would mean that the appointment of a deputy returning officer would be entirely at the discretion of the returning officer concerned. The duties which may be assigned to a deputy returning officer — that is, the counting of votes and the receipt of nominations, including the ruling on nominations — are probably the most important functions at a Dáil election. It is essential that the persons appointed to perform these functions should be of the highest integrity, should have the necessary ability and experience to do the job satisfactorily and should not be associated with any candidate or party. The persons proposed for appointment as deputy returning officers have always been individuals of high integrity and competence. So far as I know, there has been no instance in which a Minister has felt it necessary to withhold such approval.
The position of deputy returning officer is a sensitive one and is important that everybody taking part in the election should have confidence in his capacity and integrity. By definition he will be performing his functions at a time when the Dáil is dissolved. If things were to go badly wrong for any reason, the Oireachtas could not deal with the situation. In these circumstances it is desirable that the Minister should continue to hold a watching brief on behalf of the Oireachtas and on behalf of all candidates. I believe that subsection (6) should, therefore, be retained.
I agree with almost everything the Minister said, except his conclusion. I think he was correct when he said that any of the deputy returning officers who were appointed have been excellent. In my experience, our party had no difficulties with them. The system seems to be working very well.
The Minister also said that it has never been necessary for the Minister for the Environment to intervene or to change or to express any reservations about anybody who has been appointed by the returning officers. Therefore I cannot see what the necessity is for the inclusion of this item in the Act. I think that the Minister should have confidence in the returning officers for areas such as the city of Dublin. I do not know what the position is in Cork but I presume it is similar.
I think this provision is unnecessary and history and experience in relation to the work and functions of the deputy returning officers support that. As I said at the outset, I agree with almost everything the Minister has said; I simply draw a different conclusion from the information he has given.
In this country we have been very well served by the men and women who are returning officers at our elections. I believe that the conduct of elections here provides a model of how elections should be run. I have complete confidence in the ability and integrity of our returning officers and personally I have no difficulty in leaving the appointment of deputy returning officers in their hands. However, I would like to be assured that the House is satisfied in all circumstances to dispense with the watching brief which the Minister exercises on behalf of the Oireachtas on this matter. The Senator might withdraw the amendment and we will have a look at it and come back on Report Stage.
Is the amendment withdrawn?
Yes. We are quite happy with the attitude the Minister has taken on this issue and we look forward to seeing what he comes up with on Report Stage.
Amendment, by leave, withdrawn.
Section 30 agreed to.
Sections 31 to 34, inclusive, agreed to.
SECTION 35.
I move amendment No. 47:
In page 33, subsection (1), line 10, after "votes" to add "or if these are equal, the constituency in which the greatest number of votes were credited to the candidate at the time of election, or if these are equal, one of the constituencies concerned to be determined by lot".
This is a very straightforward technical amendment. I accept that the probability or the possibility of its ever needing to be used is fairly slight. At the same time it does exist and it caters for a certain possibility. I cannot see why its inclusion in the Bill would create any problems or any difficulties and for that reason I hope the Minister will accept it. As far as I can see, it simply just copes with another set of possibilities. The provisions of it are quite reasonable. I expect that the Minister would probably agree with the sentiments which are expressed in the amendment and for that reason I hope he would accede to it. It simply looks after a rather slight possibility which could emerge in a somewhat unlikely set of circumstances; but, for all that, it is just as well to have those possibilities catered for should they occur.
Amendment No. 47 proposes to expand subsection (1) to provide for the situation where the number of first preference votes obtained by the candidates in each of the constituencies is equal. It provides that in that case the question would be decided by reference to the constituency in which the greatest number of votes were accredited to the candidate at the time of his election; or, if these are equal, the constituency for which the candidate is deemed to be elected should be determined by lot.
In practice candidates rarely contest more than one constituency. Those who do are generally no-hopers. A candidate who is serious in his attempt to win a seat will always be firmly associated with a particular constituency. I understand that not since the early twenties has a candidate been elected in respect of more than one constituency in the same election. The chances that a candidate elected for two constituencies would secure exactly the same number of first preference votes in each is so remote that it could safely be disregarded. It is proper that the law should anticipate and provide for unusual circumstances, but there is a limit to how far we should go in this regard. I would ask the Senator to withdraw the amendment.
I must say I agree with the Minister on this issue. I do not think this particular amendment adds very much, but I am sorry to say I do not actually agree with everything the Minister said. It may be a fact that nobody has been elected in two constituencies since the twenties, but I remember on one occasion when I was first elected to the City Council, to Dublin Cororation, I had a certain area given to me, a huge area, one of the biggest constituencies in Ireland for a local or general election. I think that is quite wrong. In local elections people should be able to represent smaller areas, but of course that would not suit political parties because they like to be able to run party candidates. They have "Fianna Fáil", "Labour" or whatever it is after their name and then people will vote for them for that reason, whereas an unfortunate independent would have to be known in the entire area. Anyway, that is an aside.
I stood for my first election and then in the second local government election 40 per cent of the area where I stood was taken from me and put into a different electoral area. I found myself in the situation where it was extremely difficult to know which area I would stand in. I am quite convinced and I think I could produce evidence fairly conclusively to prove that I would have been elected in both areas, so I do not think it is such an extremely unusual thing. Obviously, the political parties do not do it because they like to have everything nice and tidy and well organised. It is quite obviously more likely to be a non-party person, but I absolutely resent the Minister saying that it is only no-hopers who stand in both elections. That is quite untrue. Nevertheless, I do not see that this amendment is of any great importance.
I suppose what the Minister is saying is that it is not something that is likely to occur to any great degree. It is more likely to occur at local election time than at a general election in terms of people being elected to more than one constituency. I recollect, if I am not wrong, that in the 1985 election there was one person elected to three different local authority areas in the Louth area. That could pose a problem in relation to what constituency to opt for.
Perhaps I should address this under the section itself, but I will mention it anyway. The word "elected" seems to give rise to a certain degree of confusion here in the way that it is used in the second last line in section 35 (1): "after such election he shall be deemed to have elected to represent...". Really what is intended by the draftsman there, I am sure, is that he shall deem to have chosen or opted to represent. While "elected" has the same meaning, nevertheless it does give rise to confusion in the context in which it is put. Again, in subsection (2) it is used in a somewhat confusing fashion. I am really commenting on the section here at this stage, so I will just mention the point and the Minister might take it on board. Section 35 (2) begins: "So soon as a person returned for two or more constituencies elects or is under the foregoing subsection deemed to have elected...". The language used is quite confusing. I suggest that perhaps, looking at it again, the draftspeople might opt for the word "opt" instead of "elect," or opt for the word "choose", or they might elect to use the word "choose" or elect to use the word "opt".
The only point I want to make is that this section has no application to local elections.
Amendment, by leave, withdrawn.
Section 35 agreed to.
Sections 36 and 37 agreed to.
SECTION 38.
I move amendment No. 48:
In page 34, subsection (1), line 39, after "him" to insert "pursuant to a scheme under section 28".
This again is a fairly minor technical amendment. It refers to where a person will be entitled to vote only at the polling station allotted to him. We hope by this to improve the legislation somewhat. It is a very minor technical point. I hope the Minister will be able to accept this amendment.
Section 38 deals with the manner of voting at a Dáil election. Subsection (1) provides that a person who is entitled to vote at a Dáil election other than a postal or special voter shall be entitled to vote in person only at a polling station allotted to him. Amendment No. 48 proposes that the reference in this subsection to an allotted polling station should be qualified by the insertion of the words "pursuant to a scheme under section 28". Section 28 provides for the making of a polling scheme by a county or county borough council. A polling scheme divides the area of the county or county borough into polling districts and appoints a polling place for each district. Strictly speaking, that section does not deal with the assignment of electors to polling stations. This is a matter for the returning officer under section 94.
I take it that the purpose of the proposed amendment is to make sure that polling arrangements are strictly in conformity with the polling scheme drawn up by a local authority. I doubt if it would, in fact, achieve this end. In real life there is always a possibility that a polling station cannot be provided at the appointed polling place. This is specifically recognised in section 94 (1) on page 58 and provision is included in section 28 (10) to make it clear that any informality relating to polling districts or polling places will not be a ground on which to base an election petition.
If amendment No. 48 were adopted, it could be taken as meaning that if premises to be used for voting were burnt down or otherwise became unavailable, the returning officer could not allow the electors concerned to vote elsewhere. I am sure this would not be the Senator's intention and I, therefore, ask that the amendment be withdrawn.
I appreciate the Minister's reply but I wonder if that is not covered by the second part, "in case he is authorised under sections 99 or 100 by a returning officer, at the polling station specified in the authorisation," so that if another station is involved it would be covered by that. The point of our amendment that it is "the polling station allotted to him"— is to clarify that it is allotted to him under section 28 which specifies the provision of this scheme. The amendment clarifies rather than changes. It is a technical matter and the legislation would benefit from its adoption.
Amendment, by leave, withdrawn.
Section 38 agreed to.
SECTION 39.
I move amendment No. 49:
In page 35, subsection (2), line 17, to delete ", as soon as he is directed by the Dáil so to do," and substitute "thereupon".
We are now getting down to brass tacks on some important considerations. This amendment relates to the moving of writs for by-elections after the retirement or death of a Member of the Dáil. Our amendment talks in terms of the writ being moved almost immediately after the departure of a Member. I accept that some time is devoted to observing the normal decencies to the memory of the dead person or for a gesture of courtesy towards somebody who has decided to resign from the Dáil. At the same time, we are trying with his amendment to draw attention to the fact that if one has a majority in the Dáil then one can postpone by-elections indefinitely undermining their purpose.
There have been vacancies in the Dáil which appear to have been sustained for political considerations as to whether the by-election could be won. What we are trying to do here is ensure that when a vacancy arises in the Dáil, the by-election takes place within a reasonable period rather than at the discretion of the Government. There is a great temptation for Governments to postpone by-elections indefinitely if they cannot be certain of winning them. On the other hand if the Government are likely to win a by-election, there is a tremendous temptation to have it as soon as possible and to wind them up into a vote of confidence for the Government. Such use of by-election opportunities is not desirable.
When a vacancy occurs in the Dáil within a space of two or three months, the by-election should be held as a matter of course. The need for by-elections arises usually after the death or resignation of a Member of the Dáil, chance events over which nobody has any control.
This is an important amendment more for its objective than its content. At present, and in future according to this subsection a vacancy arising in the normal way in the course of a Dáil session will be filled at the discretion of the Dáil, which means at the discretion of the Government. The Chairman of the Dáil is awarded the discretion but that means, in effect, when he is directed by the Government.
The Government may have political games to play depending on their current position. It may be a minority Government and they wish to hold off an election for the maximum period possible and a crisis may have arisen which made winning the by-election unlikely. There are a variety of reasons that a Government may not wish to hold an election at the earliest possible moment.
In the past, a longer rather than a shorter period was allowed to elapse before the holding of by-elections and that was not in accordance with the principles of democracy. Where a Dáil seat remains unfilled a section of the electorate goes unrepresented. The movings of writs should be removed from the discretion of the Government and of the Dáil and should be dealt with directly and immediately by the Chairman of the Dáil.
We are substituting the word "thereupon" for "as soon as he is directed by the Dáil to do so". When the vacancy arises the structure should be set in train to elect a replacement. This amendment is important if passed and will ensure that the old business of postponing an election for the maximum period possible would come to an end.
I am not in favour of adopting this amendment because its proposers have not made an adequate case for its insertion. I am as great a democrat as anybody else in Leinster House but the Government should have some discretion here. There are a number of factors to be considered, such as political circumstances at the time. If a writ were moved today, we already have a referendum scheduled for Thursday week. There might be other days of voting for other purposes and no constituency would thank a Government for imposing a second vote on them within a week.
There is also the consideration of a Taoiseach timing his election. If a vacancy occurred and the Taoiseach was required by this legislation to have the writ passed immediately in the Dáil, then he might give away the date of the election and no Taoiseach would want to do that. I do not think they inform their own party, and certainly not the Opposition.
In my 22 years in the Oireachtas, I have not seen an abuse of the moving writ. On one occasion it seemed to be delayed inordinately but writs are moved usually in accordance with the circumstances of the day or the country and I am sure most of us would not welcome the moving of a writ for an election in the middle of August. Even my colleagues behind me would not welcome that, so the Taoiseach is entitled to some discretion in the moving of writs.
Long evenings and good weather.
We need time for rest also. The writ that brought me into the Oireachtas was moved the same day as the Deputy resigned from the Dáil. The resignation of Kevin Boland was an historic event and the writ was moved for a Donegal constituency that evening, and with some prodding from the Opposition the then Taoiseach moved the writ for Dublin South. The Government had not a hope of winning that seat; they knew it, the constituency knew it and each party knew it because Dublin South was a three seat constituency with Fine Gael holding two of them and a massive turn around from Fine Gael would have been necessary for them to win the seat vacated by Kevin Boland. In my time here and even before that, I cannot remember any abuse except once when there was a substantial delay in moving a writ. It might tie a Government or a Taoiseach too much if we were to adopt this amendment and for the reasons I have outlined there is a need for some Government discretion to decide when would be most suitable for the country or for the constituency concerned. I know party considerations come into it, but we live in a democracy. We might not like what a Taoiseach does; it might not suit the Opposition but I cannot bring to memory any great abuse in this area.
Senator McMahon's perspective on elections is a politician's perspective. As a politician, I acknowledge that I do not like elections; they concentrate the mind and bend the brain. The public, however, do not share Senator McMahon's concerns about elections. The public like elections. They provide a topic of conversation and an item of interest, and the public would not be upset, worried or bothered if a series of elections took place rapidly one after another. They did not seem unduly disturbed in the 1981-82 period when we had three elections within the space of about a year, and I do not think they would mind either if we had August elections. If we had elections in the month of August a number of politicians and their families would freak at the prospect, but the public would not be concerned and might vote in greater numbers in August than in November or February.
The difficulty we are trying to resolve in this amendment is the question of constituencies remaining unrepresented where a member for that constituency dies or resigns. It is important that that matter be resolved as soon as possible and as practicable and its resolution should not depend on political considerations about possible embarrassment or enhancement of a Government. If the holding of a by-election causes a subsequent general election, so be it. A hundred and one different factors can cause general elections. Those are the vagaries of politics and one must accept them as such.
Section 39 (2) relates to the holding of by-elections to fill casual vacancies in the membership of the Dáil. The subsections repeat without any change the existing law in the matter. In accordance with subsection (2) as drafted the Dáil itself decides when the writ should be issued and therefore when the by-election should be held.
Amendment No. 49 would remove the discretion of the Dáil in relation to by-elections and make it obligatory to issue a writ immediately a vacancy occurs. I urge the Seanad to reject this amendment on grounds of principle and practicality. In electoral theory there is a strong reservation about the concept of filling casual vacancies by by-elections where the electoral system used is a proportional one. The argument is that all electors in the State voting at a general election determine the composition of Parliament and the representation of each party in it. It is not appropriate that the balance of representation should be changed by the electors of one constituency who make up perhaps 2 per cent of the total electorate.
By-elections can and do change the balance of Parliament, can bring down Governments and precipitate a general election. There are strong arguments in principle against having by-elections where Parliament is elected by proportional representation. In our situation where we have not devised an alternative method of filling casual vacancies, by-elections are probably a necessary evil but at the very least Parliament in the wider national interest should retain the right to decide when and on what basis such elections should be held.
On principle this amendment must be resisted. Even on the grounds of practicality, the amendment must fail. Under amendment No. 49 the writ would have to be issued immediately the vacancy occurs; "thereupon" is the word used. It would be insensitive to put the by-election arrangements in train before the funeral arrangements for the late Deputy have been made, and what if the vacancy arises on Christmas night or Good Friday? More serious from the viewpoint of the national public interest is it appropirate to plunge the country into a by-election and possibly a general election in this mechanical way and in any kind of circumstances?
The amendment would probably be in conflict with Dáil Standing Order No. 141, and there could be a question mark in relation to their constitutionality having regard to Article 15.10 of the Constitution regarding the regulations of business in the Houses of the Oireachtas. I appeal to the Senators to withdraw the amendment.
The difference between the Minister and myself is that the Minister proposes here to perpetuate an indefinite, an open ended situation, in other words, that the vacancy may be filled or may not be filled. We are seeking to create a situation where a vacancy must be filled, so the difference between us is substantial. I argue on the basis that our system is a parliamentary democracy and that it is in the interests of that parliamentary democracy that all sections of the population are represented at all times. The balance of argument must rest with us rather than with the Minister's advocacy of an open-ended situation.
We might talk forever about what the Taoiseach might feel or whether amendment might tie down the Government. A vacancy is not the possession of the Government or Taoiseach. Where somebody had been elected by thousands of votes of Irish citizens to represent them in Dáil Éireann and cannot now do so, the electors remain unrepresented; that is the bottom line. If we create a situation where they can be represented at the whim of the Taoiseach or of the Government so that political considerations determine when they will be represented again, we do a poor job.
When he examines it closely, the Minister must agree that it is not proper to describe these vacancies as "casual vacancies arising". They are not casual vacancies but proper positions of representation. The Minister refers to a different type of electoral system but the Irish system is still one of proportional representation. It may be a single seat in this case, but the vote is a transferable vote and there is nothing terribly wrong with that since that is how the system operates at other times.
Parties in this House, including the Minister's party, advocate that system so that should not be an obstacle to our ensuring that a vacancy is filled. The bottom line remains that in a democratic state everybody has and must be seen to have the same rights of representation. We cannot afford to leave the situation open-ended so that the filling of a vacancy depends on the whim of the Taoiseach of the day.
The balance of the argument lies with the Minister, although I do not disagree with what is being said on the opposite side about democracy. There would be a certain merit in establishing a time limit but established practice indicates that the present system works well, and to suggest that it would always be in the Government's interest to decide unilaterally on the date of a by-election, flies against mathematics. There are a few circumstances in which it would be in the Government's interest to call an election quickly, but they could find themselves in a mathematical situation of being unable to do so, so the decision should rest with the Dáil. There are certain circumstances where the Opposition could bring the Government down on the matter. Those circumstances are limited but they exist and I do not see why the present situation should change.
In respect of the matter of the representation of constituencies, the fact that we have multi-seat constituencies means that people are always represented. They may not be represented by the party of their choice but it is the responsibility of each Oireachtas Member to represent all the members of their constituency, not just the members of their own political persuasion, and that is what I expect of them.
There are other ways of filling casual vacancies which are outside the scope of this Bill and are not dealt with it in it. It is not always necessary to go back to the electorate to fill a casual vacancy; there are plenty of precedents in local government, in other countries and in the European Parliament for filling a vacancy through a device other than an election. I do not think that the Government had discretion in all circumstances to make the decision. There are circumstances in which the House could make a different decision to the Government's and from that point of view the legislation as framed is satisfactory.
There is merit in the Minister's point in relation to political theory; I do not dispute that. I understand and accept that a different type of election is in question. We are talking here about one seat with a single transferable vote as distinct from a multi-seat situation. I also accept some of the points made by Senator Dardis although when a Member resigns or dies a constituency is under-represented, if it is not totally without representation. One could argue that the burden of representation is accordingly increased for other Members for that area, and if it is a three-seater, there may be a significant increase in the levels of representation expected or demanded.
In many ways these are not the essential points. The essential point about the amendment is that there is already a provision to hold by-elections and there should be restrictions on how that is done. We contend that in the majority of cases that facility will be availed of according to the whim of the Government of the day, and that is not desirable. I could accept a situation where some other method of filling the vacancy were used or if a constituency were to remain under-represented. In many ways it would be more acceptable than the present situation where the decision to hold the by-election and to alter the representation for people in a given area will be at the whim of the Government. That is not desirable or right and will cause political annoyance. In many ways it creates a political distraction where the opposition of the day invariably demand that by-elections be held. Accusations will be made and people would be better off to consider the real issues being debated.
I hope the Minister will reconsider the amendment. I said that the Minister is taking an extreme position. He might equally argue that our position is also extreme, leaving no element to discretion and saying that it must be automatic. Some Senators have said that there are certain times when this lack of discretion could cause embarrassment, such as at Christmas or if the re-election process were instituted too soon after a death.
We are not anxious to institute an automatic process whereby the election would take place immediately. We are concerned to avoid an open-ended situation whereby an election would not occur except at the whim of the Government. If there were some way to marry those two positions and to improve the present situation, the matter would be resolved. The longer a vacancy remains unfilled the more castigation the Government may expect from the Opposition. They may become the subject of constant harassment and hassle and it would be in the Government's interest to see that the vacancy was filled within a short time. I ask the Minister to look at this again before we come back on Report Stage to see if he could vary the present provision which tends too far towards an open-ended situation.
The Labour Party are in a minority on this issue. Generally the House agrees with my approach so the matter should be left to the Dáil. I ask that the amendment be withdrawn.
Amendment put and declared lost.
I move amendment No. 50:
In page 35, between lines 21 and 22, to insert the following new subsection:
"(3) If at any time there are two or more vacancies in the representation of any constituency in the Dáil, all such vacancies shall be filled by a single bye-election.".
This is a straightforward, technical amendment. It refers to a somewhat unlikely possibility of two seats in a constituency becoming vacant.
Sitting suspended at 6 p.m. and resumed at 7 p.m.
When a by-election takes place where there are two or more vacancies we propose that it should be held on the basis of proportional representation, that the two seats should be filled on the one occasion rather than fill each of the two seats in single, separate elections, which would be in conflict with the whole notion and idea of proportional representation. It would also, of course, be a much more efficient way to conduct business. It would be far more economical, save time and minimise the amount of political turbulence which normally accompanies by-elections. I hope the Minister will see his way to accept the amendment, which I consider to be very much in accord with the spirit of the provisions for proportional representation contained in the Constitution.
Amendment No. 50 would make it obligatory to hold a single election to fill two or more vacancies arising at the same time in the same constituency—in other words, the discretion which the Dáil has in this regard would be removed. The arguments I have already put forward in relation to previous amendments would arise with equal force here. I do not propose to repeat those points or detain the House on them. The arguments have already been made. I believe the discretion should remain with the Dáil and again I ask that the amendment be withdrawn.
I am disappointed with the Minister's reply. I do not fully accept that the arguments are entirely applicable. Where there are two vacancies it seems to be ridiculous that the election should be confined to filling one vacancy at a time rather than filling both together. That would be a sensible way to respond to a somewhat unlikely and unusual set of circumstances. If both vacancies are to be filled in separate elections it would give rise to an inordinate amount of problems and in many ways it would be impracticable.
Amendment put and declared lost.
Section 39 agreed to.
SECTION 40.
Amendment No. 51 is a Government amendment. Amendment No. 52 is consequential on amendment No. 51 and both may be discussed together.
Government amendment No. 51:
In page 36, line 25, after "and" to insert "the writ shall be returned to the Clerk of the Dáil and".
Amendments Nos. 51 and 52 are simple technical amendments. Section 40 provides for the situation where the Dáil is dissolved after a writ has been issued for the holding of a by-election in a constituency. The section provides that if on dissolution of the Dáil the by-election has not been completed but is annulled, no further steps shall be taken in relation to the by-election and any ballot papers used at the by-election shall be destroyed by the returning officer.
The section in its current form does not specify what is to be done with the writ relating to the by-election in these circumstances; neither is there any provision for this eventuality in existing Dáil electoral law. In practice where such a situation has occurred in the past the returning officer simply returned the writ to the Clerk with "no return" marked on it. Amendment No. 51 proposes to clarify the position by inserting a requirement that in such a situation the by-election writ shall be returned to the Clerk of the Dáil.
Amendment No. 52 is consequential and is purely a matter of grammar. With the insertion of the additional words, it would not be clear what noun the word "thereat" relates to.
Amendment agreed to.
Government amendment No. 52:
In page 36, line 26, to delete "thereat" and substitute "at the by-election".
Amendment agreed to.
Section 40, as amended, agreed to.
SECTION 41.
Amendments Nos. 53 to 55, inclusive, not moved.
I move amendment No. 56:
In page 37, line 3, to delete "an imbecile or".
Amendment No. 56 proposes that the term "imbecile" be deleted. I find it hard to understand why terms such as "imbecile" need to be used in legislation. I also find it somewhat unacceptable that somebody will be told that they are disqualified from membership of the Dáil because they are an imbecile. Who is going to take on the delightful job of telling Deputy such and such that they are disqualified from becoming a Member of the Dáil because they are an imbecile.
It has not worked to date.
I do not think that term could be applied to any of our colleagues in the Dáil, even though there are all sorts of terms we might wish to apply to them from time to time. The term "imbecile" is not a term that anybody would want to apply to them.
It is beyond comprehension that that type of language should still find its place in legislation, as the term itself has very insulting connotations. It poses the question: who decides that such and such a Deputy is an imbecile? How is the case to be processed? Who will start the proceedings by suggesting that somebody should be considered an imbecile? Who are the arbitrators who will decide whether a Deputy who has been elected a Member of Dáil Éireann is an imbecile? It also has tremendous implications for the democratic process because the people, who in their ultimate wisdom determine who does or does not become a Member of Dáil Éireann, will be confronted with the suggestion that they voted for an imbecile.
I cannot see any purpose in having this term included in the legislation. I would have thought that if somebody was an imbecile, their problem could be covered by the term "of unsound mind." I find these terms difficult to comprehend and the rationale behind them difficult to understand. I am not aware of anybody ever being disqualified from membership of the Dáil because they were of unsound mind or because they were an imbecile.
Is this type of provision necessary? Can the Minister give any examples of imbeciles who are disqualified from membership of any democratically elected parliaments? I certainly cannot think of anybody. Who will judge or be the head imbecile hunter in the country? Such terminology is from the Stone Age and we would be well advised to forget it. We should use modern terminology which does not have the connotations that the term "imbecile" has associated with it. "Imbecile" is a term of abuse which is used to describe people one does not particularly like. I do not think it is a term which has any place in legislation as we approach the 21st century.
I support this amendment. It is a little dangerous for Senator Upton to ask the Minister to give examples of who he thinks might be an imbecile. It would be rather unfortunate if he gave examples from the present membership of the Dáil but I am sure that is not what Senator Upton had in mind.
Many members of the public might think that a great number, if not the vast majority, of Members of the Dáil are imbeciles in the sense Senator Upton meant in that they allow themselves to be treated, as many Deputies are treated by their parties, as fodder to go into the right lobby when they are told. In certain instances they vote against their beliefs because there is a Whip on or they allow themselves to be made into messenger boys by the way they deal with every trivial little parish pump issue which has no place in the activities of a proper Member of the Dáil. Such issues should be dealt with by the local urban district council, town commissioner or whatever.
What is the difference between an imbecile and a person of unsound mind? I have not looked up the dictionary but I would have thought that unless the Minister was referring to it in the context in which Senator Upton referred to it, an imbecile is the same really as a person of unsound mind. Can the Minister explain the difference between a person of unsound mind and an imbecile? I would be happy to consider it in the light of his explanation.
Section 41 (i) provides that a person who is an imbecile or a person of unsound mind is not eligible for election to or membership of the Dáil. This paragraph repeats the existing provision which is contained in section 51 of the Electoral Act, 1923. Amendment No. 56 proposes to delete the reference to imbeciles in this paragraph. I am inclined to agree that the word "imbecile" which is taken from the existing legislation has a rather old-fashioned sound. It is, however, a word still in current use and is included, for example, in the Collins English Dictionary, Third Edition, 1991. According to that dictionary, the word "imbecile" means a person of very low intelligence, IQ of 25 to 50 and, as an adjective, mentally deficient, feebleminded, stupid or senseless. To that extent it is a word with a recognised meaning and there can be no problem about using it in a statute.
The difference in meaning between the word "imbecile" and the other expression used in the paragraph, "a person of unsound mind", is probably not great. If the House considers that the word "imbecile" is offensive or undesirable in any way I see no real objection to having it deleted. Accordingly, I accept the amendment.
I thank the Minister and compliment him on the approach he has taken.
Who would decide that a person was of unsound mind?
The courts would decide.
Who would bring the matter to the attention of the courts? There is no requirement for a candidate to obtain a medical certificate.
It appears that in most if not all the member states of the EC severe mental illness disqualifies people both for voting and for membership of the national Parliament. The disqualifying condition is expressed in different ways in different member states: in Belgium, for instance, mental illness and mental retardation; in Denmark, persons declared incapable of managing their own affairs; in Germany, mental disability; in Italy, legal incapacity; in Luxembourg, confined lunatics; in The Netherlands, persons deprived of the right to manage their property on account of insanity or imbecility and in the United Kingdom, severe mental illness.
The word "imbecile", which is taken from the existing legislation, has a rather old-fashioned sound. It is, however, as I have said already a word still used in the dictionary. However, I am prepared to accept the amendment.
Amendment agreed to.
I move amendment No. 57:
In page 37, lines 4 to 7, to delete paragraph (j).
We debated this point three or four times already. I will refrain from reiterating the points we made in relation to our concerns about people being debarred simply because they are in prison. I will simply refer the Minister to what I said already. As far as this matter is concerned we are entering a phase which could loosely be described as the dialogue of the deaf. Perhaps the Minister will give us a hearing at this stage but I stand to be surprised.
A person who is undergoing a sentence as outlined in (j) shall not be eligible for membership of the Dáil. Would that in any way curtail their right to stand for election?
Section 41 (j) provides that a person who is undergoing a sentence of imprisonment for any term exceeding six months, whether with or without hard labour or of penal servitude for any period, shall not be eligible for election to or membership of the Dáil.
Amendment No. 72 proposes to delete this paragraph. Paragraph (j) applies to persons serving a sentence in excess of six months or a sentence of penal servitude. Thus it relates to prisoners undergoing sentences for serious offences. A person convicted of a less serious offence, for example, the non-payment of a fine, would rarely be required to serve a term of imprisonment in excess of six months. The disqualification would not, therefore, apply to persons convicted of minor offences. The effect of the amendment, if accepted, would be that persons serving sentences for serious offences, including murder and terrorist-related offences, would be eligible for Dáil membership.
While a person is serving a sentence of imprisonment he is deprived of his liberty. He cannot engage in his normal occupation. His movement is strictly controlled and normal action associated with freedom of expression, association and movement are suppressed or curtailed. For example, the number of visits a prisoner may receive are controlled and supervised. The number of letters he may receive or send are limited and may be subject to censorship. It is clear that in these circumstances a prisoner would not be in a position to discharge his functions as a Member of the Dáil while serving his sentence. In any event, it is not appropriate that the privileges available to a Member of the Dáil or to a Dáil candidate should be extended to a convicted criminal. It appears that in virtually all EC member states the law envisages that a citizen may be deprived of the right to vote or to stand for election on conviction of serious misconduct. I ask the Senators to withdraw this amendment.
There is an important point in relation to this item which I omitted to mention when I spoke initially and that is the specification in (j), which talks in terms of courts of competent jurisdiction in the State. It leaves open the possibility that people who are imprisoned outside the State can contest elections in this country. People have contested elections in this country while they were in prison, and it is not that long ago. While some people here, including myself, may not particularly like the result, such people are entitled to contest an election.
The political forces which were at work in that period should be represented and the message from those political forces should be allowed expression by way of people being entitled to vote for prisoners if they so wish. That is a basic feature of the democratic process. As I say, many people would not like much what was going on or what some of these people stood for, but others would find some of their aspirations quite acceptable. There is nothing wrong with some of their aspirations. It is when they pursue those aspirations with violence that the difficulty occurs. In those circumstances they should be able to take their case to the people if they are not satisfied with the type of political responses being made. Ultimately, it is for the people to say what should or should not happen. They are entitled to have their say in relation to the issues raised. They were given political expression when some candidates were elected to the Dáil in one of the elections in the 1981-82 period. I do not think it is healthy to restrict or block that possibility.
The Bill talks about the jurisdiction of this State. Was that a deliberate use of words to fill a certain purpose or a coincidental set of words used by the drafts-person when putting the Bill together? In other words, is this the kind of normal language used, or is it very carefully selected language?
There are people in this country who consider those who are held in some of the prisons here to be political prisoners. Whether we like it or not, that is the reality. Is it right or desirable to draw a distinction between those people who are in jails in this State who fancy or consider themselves to be political prisoners and people who are, or consider themselves to be, political prisoners in jails outside the jurisdiction of this State? I am interested in the terminology used in the Bill and in hearing the Minister's views on the words which are used. Were they carefully selected, or are they just the usual words that are used?
The Minister mentioned that a person undergoing a sentence for any term exceeding six months would not be able to discharge his functions as an elected Member. An election could be held on 18 June and the person could be due to be released on 19 June, so they would be able to discharge their functions if elected.
I share the view of Senator Upton. What have we to fear? If there are people in prison who carried out serious offences, would such people be elected? What about not only a political prisoner but somebody who is unfairly or unjustly imprisoned? We had examples of that recently not in this country but elsewhere. Somebody endeavouring to make a case that they were unjustly and unfairly convicted might use the opportunity of an election to so do. Would the electorate not be entitled to vote for that person in whatever constituency he or she decided to stand.
I do not see what we have to fear. My attitude always is to interfere as little as possible with the rights of the electorate. Let the electorate decide. We pride ourselves in this country on having a very sophisticated, well informed, balanced electorate. To suggest that they would vote for a person who was totally unsuitable is to denigrate them. I am perfectly happy to leave it to the wisdom of the electorate to decide whether a person would be suitable as a Member of the Dáil, even if that person happens at the time of the election to be serving a sentence of six months or more.
A prisoner could stand for election but his election would be void if he were elected by the people. If a person claims to be wrongly convicted, his appeal should be to the courts, not to the people. That is the avenue open to him.
The disqualification applies only to persons sentenced in the courts in this State. It has no application to a person who may be sentenced by the courts outside of the State. It would not be desirable to extend the ban to persons sentenced or imprisoned outside the jurisdiction. The Birmingham Six and the Guildford Four cases would provide conclusive arguments against doing so. Again, I would ask that the amendment be withdrawn.
The Minister's arguments are very weak. We live in an age where court decisions have been seen to be unfair and in some cases incorrect— and all the evidence of such decisions is not across the water. We might not handle the evidence here in the same way as it was handled across the water. We might not have got to the stage where we were prepared to admit that some of our court decisions could not stand up. But I think there are cases here, even at the moment, where many people feel that similar action should be taken as was taken across the water.
Apart from that altogether, consider the people to be the highest court in the land. If the people decide, it does not matter what the court decides. The people would know that the candidate was in prison. No doubt the Opposition parties and opposing candidates would make sure they knew everything about the person and that they would not be in a position to carry out the normal functions of an elected representative. But if that candidate is the people's choice, that is that. It is a part of democracy we would have to accept.
I ask the Minister, before Report Stage, to have a further look at this and see if he can improve it. Somebody could be excluded from being elected to the Dáil. As Senator Hederman said, if a person's term of imprisonment ended in a few months and an election took place, what is to prevent a constituency from electing such a person? I ask the Minister to have a further look at this before Report Stage.
The fact that a person could stand for election, be elected and then be declared ineligible, is undemocratic. Either we believe in democracy or we do not. As the previous Senator said, if we believe in democracy we leave it to the people to decide. If the people decide through the ballot box, which is the correct and democratic way to decide these issues, to elect such a person, it is monstrous that they could be declared to be ineligible.
It is very easy for the Minister to say that the correct and proper procedure is to appeal to the courts. We know that but it is not always easy to get the courts to entertain these overtures about prisoners who have been unjustly imprisoned. In the present climate we would be very foolish to go ahead with such a section. Was this not done in the early years—"get him in to get him out"? I thought the new Minister would be very proud of that campaign and of the slogans used.
I do not see why we should try to interfere with the wishes of the electorate and I ask the Minister to reconsider this very seriously.
We are talking about people who have committed serious crimes.
Not necessarily. The courts have adjudicated that they committed serious crimes.
In virtually all EC states the law envisages that a citizen may be deprived of the right to vote or stand for election on conviction for serious misconduct. I have made my arguments. Some Senators disagree with me but my view remains that we would retain the provision which has been in law since 1923. I cannot accept the amendment.
The Minister has not given adequate thought to this. A person having served a long prison sentence could be due for release in a month or two. Who are we to impose a further sentence on that person? I do not think it is right to do so. A person who committed a crime, served a prison sentence and is due for release should not have further punishment inflicted on them. It should be left to the people to decide.
There are precedents for this. In Jerusalem 1,960 years ago a certain person was before the courts and the courts refused to deal with him and turned him over to the people. That is another angle. If a person has served their sentence they have paid the price for their crime and this State should not impose a further sentence on them. In other words, when they are released from prison they should be free—free to take up employment if an employer will employ them and free to be Members of the House. The employer in this case is the people. If the people reject that person, then he does not become a Member of the Oireachtas. I do not think an Act of the Houses of the Oireachtas should impose a further sentence on a person who has served their sentence and paid for their crime. In some instances they could have been wrongly sentenced and we would impose a further penalty on them.
If the Minister accepts this amendment he might as well not pass the legislation. Those of us who come from Border counties see the inherent difficulties. In theory, it could be argued that, in every case, there was not enough evidence, the case was not proved and the courts were wrong to imprison the person in the first place. We must have guidelines and it would not be safe or sound to have anything other than what is in the legislation. If the Minister accepts the amendment he will destroy the legislation.
The more we delve into this, the more worrying it becomes. We are very fortunate in that we have a judiciary who are beyond reproach, but that situation might not always prevail. There are many counties where the judiciary are corrupt. What recourse would a person who was sentenced unfairly by a corrupt judiciary have to highlight their case or bring it to the attention of the public? The Minister may think that most unlikely, but it could happen. This situation pertains in many other countries.
I am not a legal person but I was under the impression that a maximum fine of six months could be imposed on a person for a crime which was not serious. I remember being involved in the occupation of a Hume Street premises when students wished to highlight the fact that very important buildings in Upper Fitzwilliam Street were going to be demolished. Let us remember that they were successful and as a result of their protest the houses owned by Bord na Mona were saved and are there for us all to see.
A similar thing happened in the case of houses in Hume Street. Those houses were occupied. I lent the protestors a camp bed—incidentially I never got it back—but unfortunately, they were not successful. Those students are now responsible members of the public. That happened almost 20 years ago. In my view they did a great service to this city by highlighting the fact that if somebody did not protest vehemently, that important part of our heritage would vanish forever.
I am confident that had those protests continued and it was decided to bring in the heavy hand of the law on them, they could have been sentenced for at least six months. I do not think that offence should exclude one from being a Member of the Dáil.
When I was in Amsterdam and Berlin premises were occupied—it happened also in Ireland — for quasi-political motives to highlight severe shortages in housing and outrageous conditions in which people were expected to live. In many instances the occupiers had the support of large sections of the public. Legislation was brought in to deal with such occupations and to take a fairly firm line with them.
Let us consider, for example, the occupation of Wood Quay when prominent, highly respected people of great integrity felt obliged to break the law and occupy the site at Wood Quay to highlight the tragic destruction of this archaeological site. As it turned out, none of those people went to jail but they could have gone. I do not want to mention the names of those involved but I remember them vividly. It is outrageous to consider that one of them might have stood for election on the Wood Quay issue and have been elected to the Dáil only to be declared ineligible to take up their seat. I oppose this section and hope on reflection, the Minister might consider agreeing to this amendment.
This underestimates the wisdom and good sense of the Irish people. Campaigning in an election is troublesome, difficult and an awful experience. It is exhausting. I cannot think of a worse place to conduct an election campaign from than a prison. If one is fighting an election the worst place possible to fight it from is a prison cell.
There are plenty of precedents to suggest otherwise.
There has been more to it than people simply being imprisoned. If people can conduct an election campaign from their prison cell or of an election campaign is conducted on behalf of somebody who is in prison, then there are important political forces that support them. It is entirely appropriate that such forces should be given the opportunity to express themselves through the ballot box rather than that some of the elements who would be part of those forces might begin to move down the road to violence. When the political process gives expression to some of those forces, it has a calming effect. It is a way of getting a message through to Governments and to politicians, some of whom, from time to time, can become divorced from the reality of politics on the ground. Some people in Government from time to time can be cocooned by the Civil Service and can become somewhat beleaguered by the assault which they are sometimes subjected to in difficult times. There can be a tendency to say that everything which is coming from whatever source is hostile.
The essential point is that for somebody to be elected from their prison cell a fairly important political force must be at work and it should be possible for that political force to express itself through the ballot box rather than getting bottled up within the political system and expressing itself in different forms which are a good deal less satisfactory and acceptable.
The Minister is right to stick to his guns. The reality is that we are dealing with people who have committed serious crime.
How serious?
That is a question of where one draws the line. In every country in western Europe this provision prevails and it is sensible one. Take somebody who defrauds the Revenue or does not pay his mortgage and who is eventually committed to prison for non-payment of debts. They do not get a clear sheet in that the debt is still outstanding. Anybody who has committed a serious crime should pay the penalty in more ways than one. Should a person who was given a sentence of seven or five years for rape or attempted rape or arson be allowed to become a Member of Parliament?
We should not accept this amendment. I urge Senators opposite to have some sense. I do not like the aspersions cast on our judicial system. We have the best judicial system in Europe.
That is what I said.
There was a comment made that our system of justice would give rise to serious miscarriages of justice. I do not think that happens.
That is a gross distortion of what I said and I ask the Senator to withdraw that.
Acting Chairman
Allow the Senator to continue, without interruption, please.
The vibes I get from some of the comments, not particularly from Senator Hederman, is that there is a lack of trust in our Judiciary, I cannot accept that. As far as I am concerned, the provisions is this section should be retained. If a serious crime is committed, then the penalty for that should be paid in more ways than one.
I was reluctant earlier to mention the Tallaght Two. I do not think we should go into that case but I put it to the Minister before he replies that it is not so very long ago since we had farmers blocking the streets just outside this building and some of them paid the penalty of going to prison for so doing. A few of them were my own personal friends. Some of those farmers were elected subsequently, though not while serving a sentence. This provision would prevent anybody who as a result of a political protest——
Five years.
——received a sentence of six months or more, from being elected to the House. I do not think that is correct. We would exclude some people who have already proved that they can protest, be brought before the court and serve a sentence.
Of less than six months.
It was in that case. If they did it a second time, I put it to my eminent friend on the other side of the House, it would be more than six months. It was their first offence and the sentence was less than six months but if it were more than six months, they would be excluded from being elected to the House. That is carrying it much too far. I repeat that some of those who sat on the streets here, in Limerick and in Cork have since been elected to higher places than this House.
I appeal to the Minister, if he is not prepared to accept the amendment before him tonight, at least to consider toning down the provision in the section. I accept there are certain crimes we should never forgive but, at the same time, if the person pays the price for the crime I do not think it is our duty to carry on their sentence forever. If a person commits a crime and pays the penalty for it, they should be free citizens of this State. I ask the Minister to consider our farmer friends, some of whom may live much closer to him than to me, who have gone through the process but it just so happened that their sentence was not six months. If they were to repeat the process their sentence would be for more than six months and some very sound minds and brains would be excluded from the Oireachtas.
Acting Chairman
I would be obliged if the Senator would be brief in order to give the Minister a chance to reply.
I must have an opportunity to say how greatly I resent the imputation of Senator O'Donovan. There were three speakers from this side of the House and I do not think any of us at any stage made any suggestion that we had anything but a Judiciary of the highest integrity and that we valued enormously. I have always gone out of my way to make that quite clear. I do not know to whom Senator O'Donovan was referring but I listened to the two other speakers and none of us, in my opinion, said anything of the kind. I want to make that quite clear. What I said is on record and I do not think it should be distorted.
The way this Bill is worded, somebody could stand for election and highlight their issue but if they were elected they would be ineligible to sit in the Dáil. What we are saying is that even if the public decide they have a just cause, whatever it may be, we say they are ineligible. That is illogical. The District Court can now give sentences of up to a year for relatively trivial crimes. The Minister is taking a sledgehammer to crack a very small nut.
Senator O'Donovan spoke about rapists, arsonists and so on. Does he think the electorate are total imbeciles? Does he think they will elect rapists and arsonists to represent them in our National Parliament?
The Senator wants to give them the opportunity——
I want to give them the opportunity to elect whoever they wish. I do not think that you, Senator O'Donovan, or any Senator or anybody in the Dáil has any right to take from the people——
Acting Chairman
Senator, please address the Chair. The Senator has argued the point well enough.
It is utterly ludicrous for Senators to talk about electing rapists and arsonists. I have always believed that the majority of Irish politicians seriously under-rate the intelligence of the electorate. They will get their comeuppence sadly maybe on 18 June, because they have in this instance——
Acting Chairman
The date of 18 June has nothing to do with what we are discussing.
It has a lot to do with it because Senator O'Donovan is suggesting that the electorate might be utter imbeciles and elect people who have been found guilty of the most heinous crimes of rape and arson. That is not what we are saying.
In order to be elected to the Dáil one needs 5,000, 6,000 or 7,000 votes. That is a lot of votes. I do not think a rapist or arsonist would have any hope of getting so many votes.
The amendment would enable them to stand.
The ultimate court of appeal is the public. It is they who have the enabling capacity. I believe if somebody in prison is elected, then there are fundamental forces at work which should be allowed express themselves.
In deference to the Chair's request to allow the Minister to reply, I wanted to make a point in relation to what Senator McMahon said. It says in the legislation that the person must be a member; it is not a question of seeking election. I have difficulty with the provisions of the Bill.
One of the intentions of the Government surely must be to distinguish between common criminals and people who might be in prison for political reasons. It is conceiveable to envisage a situation where people take a position of conscience and wind up in prison. There are historical precedents for this.
I can imagine a British Minister standing up in another House and being quite pompous about the same legislation in an earlier age and saying how dare we allow these people stand for Parliament and be Members of Parliament. There is a case to be made for letting the people decide. The Minister has a genuine difficulty in keeping undesirable elements out of the Oireachtas. There may be some undesirable elements here, but it is not by virtue of the fact that they have a criminal record.
Having listened to the arguments put forward by two eminent Senators, I hope the Minister will not be encouraged to accept the amendment. If we encouraged lowering the standard any more than it is——
The Senator is right; it is pretty low. The Senator never said a truer word.
I am inferring that it is very hard to understand how we could get a lower contribution than the one that is——
I thought the Senator meant a lower standard of representation in the Dáil.
I am surprised that there is so much variation. I thought there would have been agreement on this, particularly when I outlined my reasons for not accepting the amendment. In relation to what was said by Senator McMahon, once a person is released from prison, irrespective of the length of time they spent there, they are eligible to stand for election and be elected. There are no restrictions on them. Once they are released from prison they are entitled to stand for election and, if elected, take their place in the Dáil.
There might not be another election for four years, 11 months and 29 days.
I accept what the Minister said in relation to one item I raised. If an election took place at the time a farmer who had protested — farmers have protested in this country and have been put in jail—was in jail, that person would be excluded from taking part in the democratic process, even though their protest would have been a political one. If people find they are not getting anywhere with their cause, they take their protest to the streets. It is fashionable to do that; the farming community were one of the first groups to make it fashionable.
When I first became interested in the Oireachtas, one dared not come within a certain distance of the gates on either side of the Leinster House. The farmers broke that rule. Now it is broken practically every week. If some farmers who were imprisoned at that time were to protest again — and who knows when they might take to the streets over the Common Agricultural Policy or whatever — and were arrested, they would serve a longer sentence than six months but if an election took place during that time they would be excluded. They would not be great criminals. They were making a point on behalf of the community they represented. I do not want to say they are entitled to take to the streets — the circumstances would have to be considered in every case—but there were times when I think most of us agreed with street protests.
Progress reported; Committee to sit again.
Acting Chairman
When is it proposed to sit again?
It is proposed to sit at 10.30 a.m. tomorrow.
The Seanad adjourned at 8 p.m. until 10.30 a.m. on Wednesday, 10 June 1992.