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Seanad Éireann debate -
Wednesday, 10 Jun 1992

Vol. 133 No. 4

Electoral (No. 2) Bill, 1991: Committee Stage (Resumed).

Debate resumed on amendment No. 57:
In page 37, lines 4 to 7, to delete paragraph (j).
—(Senator Upton.)

We are on amendment No. 57. We gave a lot of attention to this amendment last evening. Senator McMahon was in possession. He is not here, so I will call Senator Hederman who is now offering.

We were debating the deletion of paragraph (j). It refers to the question of not allowing a prisoner to stand for election if he is undergoing a sentence of imprisonment for any term exceeding six months whether with or without hard labour or penal servitude or for any period imposed by a court of competent jurisdiction in the State. We vehemently urged the Minister to consider deleting this paragraph.

There are three very small points which I would like to make over and above what I and other Senators said yesterday. We mentioned the nature of the very minor offences for which one could get a sentence of six months. I did not have time last evening to check them out. I am sure one could get a sentence of six months for dangerous driving, which is a very serious offence and I am not belittling it. For drunken driving one could get a similar sentence. That might be particularly sensitive to Members in this House. I will say no more about that. One could find oneself being sentenced to six months and perhaps spending only two or three months in jail. Yet you would not be eligible to take your seat in this House, if you were elected democratically by the people. In view of what was said yesterday, it is important to look at this section again.

Another matter I would like to mention is whether there is such a thing any longer as a sentence of a period in jail with or without hard labour. I thought that concept had gone from our prison sentences. I would like some clarification on that.

The last point I would like to make— and it is one which I think is very valid in relation to this amendment — is that I thought it was the purpose of prison sentences to reform prisoners who were in jail. If that is the case, it is an admission of defeat on the part of those who drew up this Bill and on the part of the Minister to say that when somebody goes to jail we cannot accept that he could be reformed and we are not going to allow him to take his seat, if elected. It is extremely unfair and unbalanced. I hope that, having considered the matter overnight, the Minister will tell us now that he will consider deleting this section.

As I indicated, we discussed this matter at length last evening. We are now engaged in repetition, so I intend putting the question as soon as possible.

I have not had an opportunity to speak.

I will allow you to speak, Senator Costello.

This whole section is an important one in relation to the question of the legality and constitutionality of who should be disbarred, and on what grounds, from being a candidate for election. We must put forward very substantial reasons if any citizen is going to be disbarred. The Constitution itself, in Article 16, states that every citizen, without distinction of sex, who has reached the age 21 years and who is not placed under disability or incapacity by this Constitution or by law, shall be eligible for membership of Dáil Éireann. Clearly, there is a constitutional imperative there that anybody who is to be disqualified must be disqualified on substantial grounds. That is the principle we have to consider in looking at each of these disqualifications suggested here.

I would like to take it from a number of angles. First, I would argue that imprisonment is a particular type of sanction for wrongdoing. There is a whole variety of sanctions for wrongdoing. What people may not realise is that imprisonment itself is an alternative to more drastic sanctions that existed in the past, such as execution, which was the common one for the most trivial of offences.

(Interruptions.)

No interruptions, please.

The basic principle must be that when somebody is imprisoned that he, in fact, loses one of his constitutional entitlements — the right to liberty. After that, he has under the law other constitutional entitlements as a citizen of this country. Such person is entitled to an education and to health care. He should be entitled to the right to vote. He should also be entitled to stand for election. There is nothing implicit in the sentence of imprisonment just because it punishes people in a particular way. Let us say there was no sentence of imprisonment but suspended sentence. One sees daily that people get suspended sentences for the most serious of offences because it may be a first offence. People may have been killed or seriously maimed through drunken driving. That is not an irregular occurrence. However, for one reason or another — extenuating circumstances, the judge may be sympathetic, perhaps there is a character reference — the sentence is suspended. A person might get a suspended prison sentence for three or six years. In other words, he does not go to prison, so therefore he is not subject to a sentence of imprisonment for a term of six months.

A person, under the jurisdiction of the District Court, where there is no jury, can end up in prison for six months or longer for very trivial reasons. We are not talking about somebody who has had the benefit of a trial by a jury of his peers. One can end up in prison for minor offences.

Debtors end up in prison, a category which the Whitaker Committee said should never be in prison because that is adding extra cost to the State. Their offence is not the type of offence that prison should be used for. Are they people who should be disqualified? The Whitaker report recommends that a very large percentage of those who are in prison should be out on community service orders. The judge may decide, at his discretion, whether to impose a prison sentence or to impose an alternative sanction for the same type of offence. Therefore, just because a particular judge imposes a prison sentence of six months, or in excess of six months, that person may be disbarred from being allowed to be a candidate for Dáil Éireann. Another judge, for exactly the same offence, may impose a sentence that does not result in incarceration and then that person can stand for election. There is an anomaly there.

I do not think that this provision would find favour with the constitutional requirement that somebody should be eligible unless he is specifically debarred for due cause. I would like to hear the Minister's reply in terms of the weighty constitutional requirement in this area. Many categories of people can go into prison for offences that one would not regard as criminal offences. Farmers and students have marched for their rights. But because they are in breach of one particular piece of legislation or have caused an obstruction or a breach of the peace, they can end up in prison for a considerable period of time. The Minister should reconsider this section entirely in accordance with our amendment here.

I will be brief on this because I know this amendment has been discussed at some length. There are times when I wondered whether we were having a debate on prison reform or electoral reform. The points made by Senator Costello carry a lot of weight, especially in light of the new understanding of the interpretation of the Constitution. If we are going on precedent, the only case I am aware of where a Member of Parliament was suspended, and in fact lost his seat, because of a prison sentence would tend to strengthen Senator Costello's case. This was back in the 1920s. A member of my own party called Coyle, a very fine man from Mayo, wrote a cheque in the Ormond Hotel that he did not have the resources at that point to meet. Because of that he was brought before the courts. I do not know why somebody did not have the sense to put some money in his bank account. But he got a two year prison sentence on foot of what was certainly not a major offence.

That was in 1924 and that sort of thing probably would not happen today. Nevertheless, Senator Costello has made a case which, I believe, is certainly worth listening to. There may well be other constitutional matters and I would be happy if the Minister would simply agree to come back to us on Report Stage with any fresh thinking he may have on the matter. I am not asking him for an answer here and now. It is a matter which he may very well want to have discussed at Cabinet and with the Attorney General. However, I think Senator Costello has made an interesting case and one that needs to be answered.

This amendment was debated at length last night. Essentially, all I would say is that there is not a more unsuitable place from which to conduct an election than from a prison. It is about the worst place possible that one could consider fighting from. If somebody in those circumstances and with those restrictions can find himself able to get elected, it means that there are powerful political forces at work. Those forces should be allowed to express themselves through the ballot box rather than remain bottled up. They might begin to express themselves in other ways. That is one of the main reasons why I would like to see this restriction removed. I would also like to emphasise the item in the wording in relation to the jurisdiction in this State. I still wonder why that is in there. Why is there the possibility of people in prison in other states being allowed to be eligible for election while in this State we will not accord the same facilities to people in prison here?

I would urge the Minister not to accept this amendment. He has stated very clearly that the paragraph refers only to a serious offence. We could waffle here for two days and go back to the formation of the State. Most people elected to this House understand the meaning of a serious offence. If there is an armed robbery of a post office and one gets 12 months in jail, that is a serious offence. The Minister and those who advise the Minister are well aware of what a serious offence means. Let us have an intelligent interpretation of what the Minister is presenting here. We would never get legislation through this House if we are given examples, going back to when the State was formed of who was in jail for political offences. There would be no end to it. There can be motoring offences and drunken driving offences. We can talk about the law and reform of the law and bad law. We can get one judge sentencing to three or four years somebody who has not got his car taxed or insured. It could be said that that is not in the same category as a serious offence within the meaning of this Bill. We should give a mature response to the proposal.

I do not disagree with what Senator McGowan has said in relation to serious criminal offences. People who commit serious criminal offences should be disqualified. In fact, I do not see them queueing up to get into Parliament, anyway.

There is another aspect which I find a little disquieting. It relates to civil unrest. We have been blessed in this country because we have not had very serious civil unrest for a very long time. I attended the farmers' march which came to Merrion Square. It was not very far from being serious civil unrest. I could visualise circumstances where the authorities could intervene in circumstances of serious civil unrest based on political disquiet and where people could be committed to prison on that basis. That would raise questions as to repression by the State, in that people who went out on to the streets or got involved in some serious situation on a matter of conscience, or on a matter of serious political difficulty, could find themselves in jail. It would be very inappropriate in those circumstances for the State not to allow them to be Members of Parliament. There are many examples in other countries where people have fought for civil rights and have been sent to jail and have not been even given the opportunity to stand for Parliament.

I have some difficulties about that. Nevertheless, as I said last evening, I believe that the balance of the argument lies with the Minister. Some regulation must be established whereby people who are members of the criminal classes cannot become Members of the House or cannot continue to be Members. As the Minister pointed out, there is nothing to stop people from standing. It is a matter of being able to continue their membership of the House. There are precedents in our history where people were elected to the Houses of Parliament from jails. As I said it would be quite conceivable to imagine a British Minister in the other Parliament in the early part of the century giving the same sort of reasons as are being given here for legislation of this nature and which would have disqualified people who sat in the British Parliament or in our Parliament subsequently.

With respect, I believe the points now being made by Senator Costello and Senator Manning were covered last night. I certainly endeavoured to deal with them in as reasonable a way as as I could. I certainly oppose the amendment. Paragraph (j) of section 41 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. 57 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, a non-payment of fine — would rarely be required to serve a term of imprisonment in excess of six months. The disqualification would not, therefore, apply to a person convicted of minor offences.

The effect of the amendment is 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 restricted, is strictly controlled, and normal actions associated with freedom of expression and association of movement are suppressed or curtailed. For example, the number of visits a prisoner may receive are controlled and supervised; the 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 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 stand for election on coviction for serious misconduct. I repeat, we covered this fairly comprehensively yesterday and I appeal that the amendment be withdrawn.

The Minister has restated everything he said yesterday therefore it is not unreasonable to reply to the points he made. There are Senators in the House today who were not here yesterday. The Minister said that in other countries if a person has been in prison he cannot stand for election and I said he was being totally illogical. He is allowing these people to stand, and if they want to get publicity for their cause and use the election in some way, he is allowing them to do that.

This is repetition. The Senator repeated these points last night.

So is the Minister. If the Minister is making these points, are we not allowed to respond to them?

You are repeating the same case you made last night.

Why did you allow the Minister?

The Minister has responded. I am asking you to make a brief comment on it.

If I may, then, I was looking up these matters and I have just got the information. For setting fire to a haystack, a stack of corn, you could get a year's imprisonment. Do you think it is reasonable that somebody who set fire to a stack of corn is in prison for a year or six months—they could well be out the day after the election, the day after they were due to take their seat — would not be allowed to stand for election for another four years and 11 months and 29 days? I think that the Minister is simply stonewalling. Would the Minister reply to my question? If he replied to the points raised we would not have to keep repeating them. Is there such a thing as hard labour? Does it exist? I understood it was gone. If the Minister would reply to these points we would not have to repeat them.

The Minister said he will allow them to stand, but when they are democratically elected he will not allow the will of the electorate to hold sway and he will prevent them from taking their seat. Apparently, the Minister gives the democratic will of the electorate a low priority; that is not very important. What is important and what matters to the Minister is what is in this legislation, but what matters to me and to those who spoke last night, is that the democratic will of the people who elect such a person should be allowed to hold sway.

Is the amendment being pressed? We have had enough repetition and debate on this issue. The Minister has replied already twice. Incidentally, Senator Hederman, I have no control over what the Minister's reply will be or can be, and if he does not want to reply and feels he has said sufficient that is his prerogative.

And if he will not tell us whether hard labour still exists——

Senator Costello.

It is a brief point, but a new one. The Minister stated that he is going to disqualify people from membership of Dáil Éireann, should they be elected, if they are serving a prison sentence for any term exceeding six months, but he failed to make any distinction between what would be a criminal offence and a civil offence. Senator Dardis referred, very appropriately, to something arising out of civil disobedience. It could be a matter of the most serious criminal nature or a civil matter not involving a criminal offence or impinging the person's character. The offence could relate to all sorts of things such as street demonstrations, which are participated in by various groups and categories of people, whether they are protesting about potholes or they are farmers marching on the Dáil. For example, a casual trader without a permit can get six months plus in prison. If you sell contraceptives without authorisation, you can get 12 months plus in prison. The Minister cannot simply throw in a blanket coverall and catchall disqualification here; he must be more specific if he wants to put in a disqualification that is in line with his constitutional obligations. Let me emphasise that. Once a person is entitled as a citizen to vote, then we are not entitled to impose a law and conditions which would seek to present an otherwise qualified person from entering Dáil Éireann. I think therefore that the Minister will have to be a lot more specific in relation to the category of prisoner to which he is referring. Even if the Minister was to come back with a further qualification, I think he should certainly reexamine the situation and make a distinction on the grounds of the category of criminality as distinct from the category of civil disobedience for which a person could end up in prison for six months plus.

Is amendment No. 57 being pressed?

Question put: "That the words proposed to be deleted stand".

Votáil.

Will the Senators who are claiming a division please stand in their places?

Senators Upton, Murphy, Costello and Hederman stood.

As fewer than five Senators stood in their places I declare the question carried. The names of the Senators who stood will be recorded in the Journal of Proceedings of the Seanad.

Amendment declared lost.

I move amendment No. 58:

In page 37, lines 8 and 9, to delete paragraph (k).

This amendment deals with the debarring of people who are undischarged bankrupts from being able to contest elections or from being Members of the Dáil. It is not that I am a defender of those who are bankrupt, either discharged or otherwise, but I feel that this amendment seems to be a throwback from other times, from another form of thinking. I cannot see any great reason that these people should be singled out and debarred from membership of the Dáil or from contesting elections simply because they are bankrupt. If they are bankrupt, then that is hardly a good base on which to fight an election. I would imagine that the public would be made well aware of the fact that they were bankrupt, if not by themselves then certainly by their political opponents, who have always been very good at getting that type of information across to the public at election times.

Of course, there is another aspect to it. It relates to the fact that in many ways if somebody is a Member of the Dáil and becomes bankrupt, or runs into difficulties or is at risk of becoming bankrupt, what happens in reality is that supporters of that party who have money bail them out. One wonders if that is the best way of approaching these problems. Basically, I am not happy that this type of debarring still remains in the legislation. I cannot see any good reason for it. If someone is bankrupt that would answer most of the problems and preclude them from being a viable candidate.

I do not think we need go back over that ground. A lot of the things we said on the last amendment apply here. I think there are many bankrupt people in the Dáil, people who are totally bankrupt of ideas as to how changes should be made and perhaps also bankrupt of the idea of their responsibility to have some regard to the democratic wishes of the people. What is being done in regard to this amendment and the last one is, that the input from the electorate is simply being put aside and people other than the electorate are deciding and taking it upon themselves not to allow the electorate to speak. As I said, even if the Minister was not going to allow them to stand, but we have the ignominy of allowing them to stand and getting the support of the people in their constituency. We all know that that is not easy. Everyone of us who has run for a popular election knows how difficult it is to get elected. Nevertheless, the public will of the people will be thwarted here and now by leaving this in. I think it is a bankruptcy of ideas.

This is the last in our list of categories that the Minister is disqualifying. I think it comes back to the basic point we made: that there is a constitutional imperative on the Minister to ensure that nobody is disqualified except for the gravest of reasons. As Senator Hederman says, there are types of bankruptcy other than financial bankruptcy. To actually have this particular category defined as a group who cannot become Members of the Dáil or, if they are Members, who must leave the Dáil, is far too serious an imposition, because bankruptcy can be discharged. As Senator Upton said, it may be discharged by the members of a party in advance or if somebody happens to be a Dáil Member at the time. The right of the people to elect whom they regard as best fitted to represent them, whoever that person may be, should be left and we should not be introducing categories here that for no valid reason interfere with that right. I do not know what valid reason the Minister can give for this or for a number of the other disqualifications he has offered here.

Paragraph (k) of section 41 provides that an undischarged bankrupt is not eligible for election to or membership of the Dáil. The paragraph proposes to re-enact existing law, which is contained in section 51 of the Electoral Act, 1923. Amendment No. 58 proposes to delete paragraph (k) and thus remove the disqualification on grounds of bankruptcy. Disqualification on grounds of bankruptcy appears to be based on the view that a person who has been shown to be unable to conduct his own affairs in a satisfactory manner should not be entrusted with the conduct of the affairs of the country.

The law of several of the EC member states declares bankrupt persons to be ineligible for election to the national Parliament — for example, the United Kingdom, France, Italy and Luxembourg. In each of these countries, except the United Kingdom, bankrupts are also disqualified from voting. Unlike the position in the case of the existing provision, there is provision in section 42 (3) for a period of grace of six months before the disqualification takes effect in the case of a sitting Member of the Dáil. This provides an opportunity for a Member who is an adjudicated bankrupt to obtain a certificate of discharge under section 85, paragraph 7, of the Bankruptcy Act, 1988. If a certificate of discharge is obtained within this six months period, the person does not cease to be a Member of the Dáil. In this regard the provision of section 41 (k) is more flexible than the existing provision of the 1923 Act. I think the provision of section 41 (k), taken in conjunction with section 42 (3), strikes the correct balance in relation to the disqualification of bankrupts and I think the amendment should not be accepted.

The Minister has let us know that there is a six month period in which the bankruptcy can be discharged. That would seem to mean in effect that those parties which are well funded, which have wealthy supporters and which have the support of people with business connections and so on, would in most circumstances have the capacity to deal with and discharge a bankruptcy problem. That may not be the case in relation to a Member of the Dáil who happens to be perhaps an independent or indeed a member of a small party whose supporters are not particularly well off. I think that enters another note of discrimination, which is quite undesirable. As I say, that is just another reason why I would hope the Minister might accept our amendment.

Would the Minister not accept that the position in regard to offences such as bankruptcy, which back in 1923 had a certain connotation, changes as the years go by? We seem to be sort of frozen in our thinking, and that just because that was the position in 1923, it has to be so again today. Can we not have a little imagination and say you can become bankrupt through no fault of your own? To give the reason that one could not conduct one's affairs in a satisactory manner is a long way from the truth.

There are many aspects of bankruptcy and moral bankruptcy is perhaps more serious than financial bankruptcy, and financial bankruptcy is very much a relative thing. You can be declared bankrupt and put into Stubbs for a very small amount of money which you may be unable to discharge, depending on your circumstances, whereas somebody else could be declared bankrupt for hundreds of thousands or millions of pounds and they might even be in a position to discharge it, depending on the circumstances of the company or their provision. Again, the Minister makes no demarcation; it is just anybody who happens to be an undischarged bankrupt.

It is the same as happened in relation to the previous amendment, where the Minister does not distinguish whether a sentence of imprisonment is for a criminal or for a civil offence. In this case the Minister does not distinguish between a moral bankruptcy and a financial bankrupt; or, in the first instance, since he is referring here to financial bankruptcy, whether it is of a serious nature or of a minor nature. It certainly would seem strange to be adding this category in this context without some sensitivity or some regard for the seriousness of the bankruptcy; and no such regard is indicated in this particular provision.

There is of course a case to be made against the disqualification of bankrupts from membership of the Oireachtas. However, I consider that the balance is in favour of retaining disqualification, as exists in other EC countries. I think the amendment should be withdrawn.

Amendment put and declared lost.
Section 41, as amended, agreed to.
SECTION 42.

I move amendment No. 59:

In page 37, subsection (2) (a), line 24, after "appeal" to insert "(which term shall include appeal by way of case stated, or proceedings by way of judicial review, or an appeal from an appeal)".

This is a minor technical amendment. It simply seeks to define the appeal process more widely than it is defined in the Bill and also to define it somewhat more precisely than it is defined in the Bill. I hope the Minister will be able to respond favourably to this amendment.

Section 42 indicates the time in which the disqualifications referred to in section 41 takes effect in the case of a sitting Member of the Dáil. Subsection (2) requires the registrar of the court by which a disqualifying prison sentence is imposed or confirmed on appeal in the case of a sitting Member, to notify the Chairman of the Dáil on the expiry of the time allowed for appeal or on the determination of the appeal as may be appropriate. Amendment No. 59 proposes that the reference to appeal in this section should include appeal by way of case stated, proceeding by way of judicial review and appeal from an appeal.

We are dealing here with the situation where a Member of the Dáil has been found guilty of a serious offence. The offence must have been of a serious nature otherwise the sentence of imprisonment in excess of six months or of penal servitude would not have been imposed. In fairness to the individual concerned who, after all, will have been duly elected as a Member of the Oireachtas, a period of grace is being allowed before the disqualification takes effect in order to allow an appeal to be lodged and dealt with.

It seems only fair to do this before the person's career in public life and, possibly, his livelihood are cut off. We cannot foresee what the circumstances might be in a particular case or, on the face of it, the Member concerned will have been convicted of a serious offence. His fitness and his capacity to represent his constituents and his discharge of his parliamentary functions will be seriously in question.

While it is appropriate that he be given every reasonable opportunity to clear himself, the interests of the Oireachtas and of his constituents must also be taken into account. It is doubtful if these interests would be best served by allowing the matter to drag on indefinitely. It is proposed, therefore, that he or she would be allowed the normal period contemplated in rules of court for lodging an appeal. On the conclusion of that period, unless otherwise directed by an appropriate court the disqualifying provision would take effect.

As I have said we cannot foresee what the precise circumstances may be. There may be good reasons he cannot lodge an appeal within the normal period allowed or that he should choose some other route available in law to have his conviction or sentence reviewed. In that event, I understand it would be open to him to seek an order restraining the registrar of the appropriate court from notifying the Chairman of the Dáil under this section.

We know how zealous our courts are in regard to the rights of the individual and we can be confident that they would extend this protection to the individual in such circumstances. Section 42 (2), as drafted, strikes a reasonable balance between the interests of the individual concerned and those of his constituents and of the Oireachtas.

Amendment, by leave, withdrawn.
Section 42 agreed to.
Sections 43 to 45, inclusive, agreed to.
SECTION 46.

I move amendment No. 60:

In page 38, subsection (1), to delete lines 23 and 24 and substitute "as proposer".

This is a minor technical amendment but it is one which can have very important implications. It seeks to deal with the situation where a person may nominate himself as a candidate or, alternatively, the person may be nominated by another individual who proposes him or her but the proposer needs to be a person registered as a Dáil elector in the constituency for which he proposes to nominate the candidate. I cannot see any necessity for the qualification here that the person who makes the nomination has to be a person registered as a Dáil elector in the constituency for which he proposes to nominate the candidate. That is a minor technical point.

I cannot see any difficulties arising from the deletion of that provision. The fact that it is there could create alarming problems for somebody who might be a little slipshod about the way nominations are lodged. That could be a particular problem in the city of Dublin where there are not very clear boundaries of county or boundaries between different constituencies.

In the Terenure area of Dublin where I live, one side of Terenure Road is in Dublin South-East and the other side is in Dublin South-Central. It could very easily happen, if somebody was not particularly well informed about the procedures for being nominated, that a supporter of a candidate who lives across the road might think they were in the same constituency or be unaware of this technical point and could offer to look after or take care of someone's nomination.

In the case of the major parties, I doubt if that would be a problem. It would not be a problem in my case in as much as my director of elections has invariably been something of a wizard on these matters. However, it could be a difficulty for an Independent candidate contesting a Dáil seat who may not be aware of the technical side and would feel that somebody was doing him a favour by putting forward his nomination, going through the procedures, and then finding that because of this minor technicality the nomination was invalid. There are precedents of people being debarred from contesting elections on minor technicalities. I understand that a Member of this House, who represented the National University of Ireland, at one stage missed the deadline for lodging his nomination. These things can happen. This is a minor technical detail, which in a certain set of circumstances, could result in somebody being debarred from contesting an election. That would be wholly undesirable.

On the other side, I cannot see why that specification has to be included in the Bill. I ask the Minister to consider the amendment and, to accept it.

This amendment raises the question which I hope the Minister will address of people on the register of electors who are not eligible to vote in Dáil elections. If this amendment were accepted it would then, by inference, state that a proposer could be an elector who was not permitted to vote in the election for which they had actually proposed the candidate. For that reason and no other, I feel the amendment could not be carried, despite the suggestion that it is of a technical nature. It raises the fundamental question of people who are on the register, who can only vote in local elections or European elections, but are precluded under our Constitution from voting in Dáil elections. Until that anomaly is addressed, this amendment would create enormous legal difficulties. Therefore, I am not be in favour of supporting it but I am anxious to hear the Minister's reply.

An interesting angle on the issue has been raised by Senator Mooney but I do not think it addresses the existing anomaly. At a Dáil election a person may nominate themselves as a candidate whether they have been registered as a Dáil elector in the constituency for which they propose to nominate themselves. There is no obligation on the candidate to be registered in the constituency but there is an obligation on anybody who may nominate them. If a second party comes into the equation, that second party must be registered in the constituency and it would seem only reasonable that you would have the same criterion for anybody nominating somebody for election. If you are entitled to nominate yourself you should be in the constituency; if somebody else nominates you they should be in the constituency.

There is an inherent anomaly in this provision and all the Minister needs to do is to eliminate that anomaly. We have suggested a way of doing that but the Minister may have a different way, it remains an anomaly.

Section 46 repeats without change the existing law in relation to the procedure for the nomination of candidates at a Dáil election. Under subsection (1) a candidate may nominate himself or may with his consent be nominated by another person who is a registered elector for the relevant constituency. Amendment No. 60 proposes to delete the requirement that a proposer of a candidate must be a registered Dáil elector for the constituency for which the nomination is made.

The existing provision which subsection (1) re-enacts, has been in force since 1963. Prior to the enactment of the Electoral Act, 1963, a person to be nominated as a candidate at a Dáil election required a proposer, a seconder and eight assentors, each of whom had to be a registered elector for the constituency concerned. For a valid nomination the nomination paper had to be signed by ten registered electors for the constituency. The candidate himself also had to sign the paper and thus indicate his formal consent to the nomination.

The Electoral Act, 1963, changed this provision to a requirement that a candidate simply nominates himself or is nominated by a proposer. On the recommendation of the joint committee the requirement for ten signatures was removed. At the same time the arrangement under which the candidates may be endorsed by political parties was introduced. Most candidates are in fact endorsed by political parties and this in itself is an indication that the candidate is serious and has some measure of support in the community.

The requirement for the candidate's own signature on the nomination paper was also dropped in 1963. The reason for this was that the period for nomination is rather short and an intending candidate might well not be available to sign the paper — for example, on account of illness or absence from the country. As an alternative, therefore, the law provided that the nomination could be signed by one registered elector for the constituency.

It is not unreasonable to require that a proposer of a candidate at a Dáil election should be a registered Dáil elector for the constituency. In the case where a candidate is nominated by a proposer the candidate is not required to attend in person at the ruling on nominations. It seems reasonable that some minimum link be shown to exist between the proposer and the constituency. The proposer could be nominating a candidate who is not residing in the constituency or even in the State. The amendment, if accepted, would permit a person who may not even be a citizen to nominate a person who has no link whatsoever with the constituency. This may be an extreme example, but I think it illustrates the desirability of maintaining the provision as drafted. In reality the operation of this provision has given rise to no difficulties in practice and a serious candidate for election will have no difficulty in getting an elector in the constituency to propose him. In fact, it is common practice for candidates to be nominated by a proposer even when there is no apparent necessity for it. Again, I ask that the amendment be withdrawn.

I have no great disagreement with what the Minister said. What he said seems reasonable enough. However, the technical possibility exists in the example I have given. In the case of a member of a small political party or an independent candidate who would not be particularly clued into the details of the election process, first of all, they might think that who proposed them was of significance. They might be unaware of this provision and find subsequently that the proposer simply lived across the road from them and knew them well. Accordingly, they would be disqualified from contesting the election. All the difficulties the Minister alluded to in relation to people from outside the State and people who know nothing about constituencies etc. are covered in the stipulation which says that the candidate has to consent to the proposal. However, when it comes to frivolous candidates contesting elections just as a gimmick, that is not precluded by this stipulation here, because of course anyone who wants to be a frivolous candidate can simply nominate himself or herself and there are no restrictions in relation to whether or not that person is from the constituency, lives in the constituency or even knows where the constituency is.

I am attempting to get clarification because the Minister did not address the point I made earlier. If he is not addressing that point, I feel that this is a discriminatory measure as it currently stands because it precludes those who are on the register of electors. From the reply the Minister has given, it seems to me that the basis of this section is that there be a strong link between the proposer and the prospective candidate and that that link would be anchored in the constituency. I suggest to the Minister that this section as it stands has another anomaly in it in that it specifies Dáil electors and that there is a growing number of people on the register of electors in a constituency who are not entitled to vote in Dáil elections. Is it now being suggested that they are not entitled to even propose somebody for election to the Dáil? I would be grateful if the Minister would address that issue. It is a discriminatory measure as it stands.

I do not think the Minister has addressed the central issues that Senator Mooney and myself have raised. Must it be a Dáil elector? Is it the person registered as a Dáil elector in the constituency and why it should be restricted to a Dáil elector? That could be interpreted as a form of discrimination against others who would be entitled to vote in other elections in the constituency. The Minister referred to the option where a person nominates a candidate, but he has not referred to the person nominating himself or herself. That is where the anomaly arises. There is no requirement that the person who nominates himself or herself at a Dáil election is registered as a Dáil elector within the particular constituency. It would make sense to have the same procedure operating for whoever does the nomination, whether it is the person concerned or whether it is a second person. Secondly, we should seek to eliminate any anomaly in relation to those people on the register in the constituency and we should treat them all equally.

The person may be a Dáil elector. That means he must be an Irish or a British citizen. I do not see why, if they are not entitled to vote, they should be entitled to nominate. That is reasonable. We dealt with these points on an earlier part of the Bill.

Is it true that a Dáil elector has to be an Irish citizen? Am I wrong in thinking that British citizens are entitled to vote in Irish elections? I was under the impression that such an amendment was introduced quite recently. I would like to hear the Minister's response to that.

I do not wish to hold things up. I was only making what I felt was a relevant point in the context of the section which states "being a person registered as a Dáil elector". I am only asking why is it that anyone who is not a Dáil elector is precluded from nominating a candidate. I am not suggesting they are not entitled to vote. The Minister is stating specifically that only a Dáil elector in the constituency can nominate a candidate. I am asking why he cannot extend the nominating process to those who are on the electoral register. I raise it because the spirit of the Minister's reply earlier seemed to indicate that the reason behind this section was to ensure that as between the proposer and the candidate there was a strong and substantial link within the constituency.

It is reasonable that a person who is entitled to vote should be entitled to nominate and that a person who has no vote should not be entitled to the same and should not have the opportunity to nominate a person. British citizens have a right to vote here, as we do in England.

I am perfectly happy with the Minister's reply, but I felt it was important to have it made in the circumstances.

Amendment put and declared lost.

Amendment No. 85 is consequential on amendment 61 and both may be discussed together.

I move amendment No. 61:

In page 39, subsection (5), line 10, after "Non-Party" to insert "or Independent' ".

Of the amendments I have tabled this is the one about which I feel most strongly. I hope the Minister will give us not only a sympathetic hearing but that he will give us some encouraging response. I refer to the section which says that where a candidate is not the candidate of a political party he should be entitled to enter after his name on the nomination paper the expression "Non-Party", and if he does so the returning officer shall cause that statement to appear on the ballot paper.

I am asking that after "Non-Party" should be inserted the expression "or Independent." I was originally of the opinion, that the Minister did not have the option of leaving it blank. I thought I was reassured on that point but I now have serious doubts about it. I would very much like the Minister to address that point. In the section I have just read there is nothing there which indicates that one may do what is the custom at present, that an Independent can put either "Independent" or leave the space vacant. I know that section 88 (2) (b) says: "the surname of each candidate and the name of his political party if any, or, if appropriate, the expression "Non-Party" shall be printed in large capitals. I believe that could be read, "the name of his party or, if appropriate, the expression "Non-Party," meaning that if he is not a member of a political party he, or she will then have "Non-Party" after it.

When one looks at the Second Schedule the form of a ballot paper is given and there is no candidate there who has a blank space after his name. The name of the party is given or the term "Non-Party". That leads me to my original belief that a candidate will be obliged to enter the words "Non-Party". I want to speak as strongly as I can against the introduction of this new arrangement that Independents will have to call themselves "Non-Party" if they want to have anything after their names.

A different Minister was here when we debated this on Second Stage. I would like to repeat that I find it extremely offensive when people, Catholics, and I am a Catholic, call other people non-Catholics. There is a suggestion we are all Catholics, we have all got the one true faith, and all others, whether they are Methodists, Presbyterians, Jews, Muslims are non-Catholic. I have never used the expression and I find it quite offensive. I find it equally offensive that I might find myself in the situation where I have to call myself "Non-Party," that is, of course, if I do not join a political party before the next election.

There is the possibility.

There is always a possibility. Never close any doors, the politician always says.

(Interruptions.)

Acting Chairman

Senator Hederman, without interruption.

This is a serious issue and I must keep it that way, the fact that we will be obliged to call ourselves "Non-Party". I ask the Minister to put himself in the shoes of people who are not members of political parties. Are we soon going to arrive at a stage in this country where if you want to be a politician you will be obliged to be a member of a political party? I mentioned the other day that it was interesting that an ENFO publication, which I produced on a previous occasion, stated: "Why not join a political party? Join a political party and do not be a hurler on the ditch." Now we have all these bodies like ENFO apparently telling people to join political parties and not be hurlers on the ditch.

It seems to me that what is proposed in this section is a great insult and is an attack on the civil rights of those people who wish to call themselves Independent. Could the Minister imagine what it would be like? It might sound absurd but this is what he is asking us to do, can he imagine what it would be like if he was forced to put on the ballot paper after his name, non-Fine Gael, non-Labour——

(Interruptions.)

——or non-Workers' Party. I suppose the worst one would be for the Minister to have to put non-PD. Everybody is laughing and I am happy to see that the Minister has a sense of humour as well. I ask him to delete this section. Certainly, it has not been my experience in this House that members of political parties have wanted to be unduly unfair to Independents.

Even if we are allowed to put nothing in, I still think it is an insult. My dictionary defines "Independent" as "a politician who commits himself to no party; not relying on others, not subject to bias". Another dictionary said, "a politician who commits himself to no party; an Independent is somebody thinking or acting for oneself". That fairly sums up what the Independent is, "somebody thinking or acting for oneself" and that it highlights the difference between the Independent who thinks and acts for himself or herself as opposed to the non Independent who does not think or act for himself or herself. I put it to the Minister that it is a civil right to call yourself an Independent. What are the members of the bench on which I sit? How do you refer to them everyday here in the Seanad? Are we not known as the Independent group? Does Senator Hanafin not now sit on the Independent bench? Is that not where Fianna Fáil sent him when they threw him out of the party? He happens to have joined the University Senators but he was sent to sit on the Independent bench.

He is in exile.

It may be a painful exile but nevertheless that is where he is.

Acting Chairman

Will the Senator deal with the amendment please.

Is Deputy Gregory not known as an Independent Deputy? I find it extremely offensive that we should be prevented from using the tag of Independent Senators. Here again the party politicians are looking after themselves, protecting the status quo of the political parties and looking to see how best they can strengthen their position. It would be appropriate for Members to reflect for a moment on what is happening in the United States at present where a candidate or somebody trying to become a candidate——

Acting Chairman

May I remind the Senator she is making a Second Stage speech which is not allowed. I would encourage brevity. The Senator has been speaking on this amendment for almost 15 minutes.

I feel most strongly about this. If the Minister was prepared to concede on this, my colleagues and I might be prepared to withdraw the other amendments. I would have to have a look at that; I cannot give that under-taking——

Let us hear the Minister.

I have only a few points to make. I agree with Senator Hederman's amendment because the Minister proposes to define all candidates, other than those who are members of a political party as prescribed under previous sections in this legislation as "Non-Party". That is a negative and unacceptable way of going about it. Anybody whose name is on a ballot paper should at least expect to be described in positive terms. An inherent problem with this provision is that they are described only in negative terms and I believe that can have an adverse effect on the electorate who might otherwise consider voting for a candidate. It is a substantial issue.

If you are put forward as a candidate, but described on the ballot paper as "Non-Party" you are being discriminated against as your credentials are not being acknowledged and you could lose votes because of that description. We should have not only a positive rather than a negative description of anybody putting himself forward for election but an accurate description. People who stand as Independents do not want to be described as "Non-Party"; they stand as Independents because they are independent minded. That is not a negative but a positive and accurate way to describe them.

Earlier in the debate we had a question about the status of a person putting himself forward to represent a cause for which he is well known. The Minister would find it very difficult to find anybody, not a member of a political party, who describes himself as "Non-Party" in his dealings with the community. Usually he will describe himself as an "Independent" or "Community" candidate. It comes back to Senator Hederman's point, it is a question of the draftspeople and the legislators putting themselves in the position of those people, the people do not see candidates as "Non-Party" but as people standing for something, and independence is a positive virtue. Most of us are members of political parties but it is appropriate for somebody to stand as an "Independent" and he should not be defined in terms of the political parties.

I agree with the sentiments already expressed by Senators Hederman and Costello. I am beginning to wonder if the Minister comes from that school of political thinking which believes there is no such thing as an "Independent" in Irish politics.

We do not know; we have not heard from him yet.

I will be delighted to hear whether he does or does not. Of course, language is important and Independent candidates invariably describe themselves as "Independent" in their literature. They might qualify that they never use the term "Non-Party". I think they are being put at a considerable disadvantage. People, particularly those who are not especially interested in politics, may look for "Independent" candidates on the ballot paper and this new description of "Non-Party" will come as a surprise to them. They will not be familiar with that term because it will not have been used in the campaign, on election posters or literature and that will give rise to unnecessary confusion.

I believe Independent candidates should be entitled to describe themselves as they see themselves, in other words, as Independent. This negative description of non-party is inadequate and most Independents constantly seek to make a virtue of their independence. Our colleagues behind us constantly harp on their independence, and they are quite entitled to do so. It is an important feasture of Irish political life and an important part of the election process that you should have Independent candidates. For that reason I hope the Minister will be prepared to accept this amendment.

Section 45 repeats existing law in relation to nomination of candidates and enables a candidates to include the name of his political party on the nomination paper. If the candidate is not a candidate of a registered party he may use the expression "Non-Party" or leave the relevant space blank.

Section 88 which deals with the preparation of the ballot paper enables the name of the party or the expression "Non-Party" to be shown on the ballot paper. Amendments Nos. 61 and 85 propose to give the non-aligned candidate the additional option of using the word "Independent" on his nomination paper and on the ballot paper. Under existing Dáil electoral law, repeated in section 46 where a candidate is not a member of a registered political party, he or she is entitled to enter on the nomination paper after his or her name the expression "Non-Party" and under section 88, in the case of such candidates the expression "Non-Party" is printed on all ballot papers and on election notices.

I would like to stress that the use of the description "Non-Party" is entirely at the discretion of the candidate. Any candidate who does not wish to use this description need not do so; the relevant space on the nomination paper and on the ballot paper may be left blank. I consider the expression "Non-Party" to be the most appropriate to describe a candidate who wishes to make it known that he or she is not a member of a registered political party. It indicates briefly and clearly that the person does not belong to a registered party. The amendment gives the non-aligned candidate three choices — to leave the space blank, or to use the expression "Non-Party" or the word "Independent". I do not see the practical necessity for this range of choice and I suggest the amendment should be withdrawn.

I thank the Minister for his explanation. Having reread the section I accept that one can leave the space blank. May I make it quite clear however, that that is no way changes my wish to have this amendment accepted because the Minister is asking us to be either a negative or nothing; that is what it boils down to.

At this stage I thank the Labour Party Senators for their support. I appreciate that and it will encourage me in future to exclude the Labour Party from my unfavourable remarks about political parties.

You might join us.

I might even join you. The reality is that the Minister is allowing us to call ourselves "Non-Party" or we can leave the space blank. Perhaps a candidate wants to make it known that he is not a member of a party; perhaps he wants to be known as an Independent because he has a positive, independent, enlightened approach to legislation, to the running of the country, to all these issues, and he does not keep harping back to the past. I very much regret the fact the Minister keeps saying this repeats the legislation we had back in 1920 or 1923. We are showing ourselves to be bereft of ability to move with the times and to take an enlightened approach.

It seems to me the Minister and those who drafted this Bill look on those who are non-party and not members of political parties as some sort of eccentric cranks whom they want to downgrade. Let me say to the Minister and those party members who adopt that view, and continue to try to denigrate independents as eccentric hurlers on the ditch, or sitting on the fence — and that is what they try to subtly say in their ENFO publications — that people will rebel and are starting to rebel. The reality is that we have now got a young, dynamic, educated electorate who are much better informed. If the Minister insists on relegating everybody who is not in a political party to the status of a non-entity they will send a message back, as happened in the last local elections.

Let us be quite clear about that. The parties are running scared at what is happening and are introducing these draconian measures. This amendment which I have tabled is a specific attempt to move away from that situation. I think the Minister, his party colleagues and all politicians, including myself, would be well advised to consider the mood of the electorate and to look at how they are reacting to the way they are being treated by politicians. They have made it quite clear they do not like it and do not like being treated as imbeciles. I feel strongly about the other amendments but I feel extremely strongly about this one. May I ask the Minister if he wishes to be antidemocratic in the way he is treating the independent candidates?

If this amendment were to be accepted and if a candidate was to be entitled to enter on the ballot paper the description "Independent" after his name and at some stage in the future a political party applied and were successful in registering as "The Independent Party", candidates from that party would be entitled to use "Independent" after their name. We would have a situation where non-party candidates would also be entitled to use "Independent" after their name. If that situation were to arise we could finish up in a very serious difficulty. For that reason I would be opposed to this amendment.

I ask the Minister to examine the possibility of taking this amendment on board. I do not see why there should be a major difficulty with having the word "Independent" included after "non-party". We have very many fine independent politicians in this House, in the Dáil and in the county councils throughout the country. I do not see where there can be any great difficulty in having the words "Independent, non-party" included after the name of a candidate who does not belong to any of the major political parties. I would ask the Minister to examine this matter and come back to us on Report Stage. Hopefully he would then be able to take this amendment on board.

I was anxious to hear the Minister's reply and even though Senator Mullooly's point is valid, and one that I support, I have a great deal of sympathy with Senator Hederman's position. I was trying to establish how this term "non-party" came about. If my memory serves me right — and perhaps the Minister may be advised on this — a law was introduced in this country for the registration of political parties within the last 20 years. Up to that time there had been a more flexible arrangement about how candidates described themselves. I am not too sure about this — and perhaps I should not mention it — but I remember there may have been an attempt to encourage parties with subversive tendencies involved in the political arena to register and come into the mainstream democratic process. This was one of the reasons the Government of the day introduced legislation for formal registration.

When that legislation was being drafted this strange, nebulous, alien term was introduced by a bureaucrat. Somebody somewhere sitting around said "We have to come up with a term to describe those candidates who are not members of a political party and why not use the term ‘Non-Party'?" It is not in common usage. I always felt those who said that the law is an ass had a certain amount going for them because in much legislation, legal jargon takes over and it sometimes ignores common usage.

As Senator Naughten pointed out and as Senator Hederman in a very forceful defence of her amendment said, the term "Independent" is widely used. The electorate readily identify with it and they are not at all confused by it. In another forum I would describe the Minister's reply as "cute". It was very clever in that it skirted the issues and did not address the actual term "non-party", which seems to draw the ire of those proposing the amendment.

Let me make it clear. I am not taking a principled stand on this, but merely expressing this view because I feel the Minister and the parliamentary draftsman might look again at the term "non-party" because of the hostility it generates on occasions on the Independent benches. It is a term in common usage around the country and would not, in my opinion, confuse the electorate or create any extra difficulties. The Minister said in his reply that candidates may opt to leave the space blank or describe themselves as "non-party". I also appreciate the Minister's point that by adding a third option we would create difficulties of one sort or another. I felt that answer did not address the central problem, which is the use of the term "Non-Party". To put it in a sentence perhaps the Minister could come up with some other term.

Acting Chairman

I would like to remind the House that I have given a lot of latitude on this amendment and I ask Senators to please conclude as quickly as possible. We have spent over half an hour on this amendment.

It is an important amendment and I ask the Chair to bear with us while teasing it out a little further, particularly since Members on all sides of the House have come in with expressions of concern about the wording that is proposed here.

Senator Hederman put it excellently when she described the Minister's proposed description of "Independents" as "negative or nothing". That is a beautiful way of describing it. In other words, after your name you can have a blank or use the term "Non-Party" but you cannot express yourself in a positive fashion on the ballot paper. That is not good enough. The Minister said there are two options, but why not a third? What is the major obstacle to having the third option which would be the term "Independent" which is requested by Senator Hederman? If we can choose to leave it blank or use the term "Non-Party", why not have the third option of "Independent"?

I would like to hear from the Minister why it is not possible to incorporate this into the provisions of the legislation. It is damaging to the prospects of a candidate if they are described as "Non-Party" or if there is a blank. There is something inadequate about this description which could endanger their prospects of being elected. I am not sure I accept Senator Mullooly's point that a party could be known as the "Independent Party". However if a party is known as the "Independent Party" then so be it. We have "Independent Fianna Fáil" in Donegal. I am sure other parties also have those who attach "Independent" to the party name.

We have "Independent Labour" candidates from time to time but that is not on the ballot paper.

Yes, and we have an "Independent Fianna Fáil" Senator on this side of the House who has been expelled from the bosom of the great party but still regards himself as Independent Fianna Fáil, even though he is an "Independent". The Minister is proposing to establish a category knows as "Non-Party", whereas everybody else is described as a member of a specific party. We have the generic term "Party" and "Non-Party"; imagine if you were going forward before the electorate and were described simply as "Party" without the specific party to which you belong being mentioned because all others were "Non-Party". The generic term is "Party" and "Non-Party" but on the ballot paper you have the benefit of being known to belong to a particular party and that is why you get the votes. If you had been described simply as "Party" that would not necessarily mean that you would get all the Fianna Fáil votes that you get when you are described as a Fianna Fáil candidate. Clearly it is, discriminatory to describe one group in a generic term "Non-Party" and others as belonging to a specific political party. It is not an accurate description. I think we should ensure the registrar can satisfy himself that the description is an accurate one. Somebody should be able to describe himself as an "Independent" as long as the registrar is satisfied that is an accurate description. I do not see the advantages of saying that everybody who is not a member of a political party should be described as "Non-Party. I cannot see the reason the Minister describes what we are proposing as being a loose form. It is not a loose form, it is accurate as it is defining the candidate by the work he is doing for which he is standing for election. I urge the Minister at least to consider this amendment again and come back to us on Report Stage.

Let me reply to Senator Mullooly's very quick thinking in suggesting the problems that would be created if an "Independent Party" was formed. Having seen what the Minister proposed and being worried lest it would go through, I hope now that with both sides of the House supporting this amendment the Minister will be influenced and at least agree to take this away and to come back to us on Report Stage.

We have already looked at the possibility of forming an "Independent Party" out of the sheer frustration of thinking that we may be labelled from now on as "non-persons", "Non-Party". It is a most offensive thing to call a person "a non-person". That is exactly what we are being asked to accept. If Senator Mullooly looks at section 25, the registration of political parties, he will find it is quite difficult to register as a political party and that it is not likely the registrar would accept the name "Independent Party"— although that is still something that has to be decided. Senator Mullooly's objection does not stand because somebody could just as easily go to the registrar and ask to form a party called the "Non-Party" party. Where would we be then? What will we do if somebody goes and says he wants to call his party the "Non-Party" party?

See a psychiatrist.

They might be forced to do something as ludicrous as that to counteract the undemocratic nature of this legislation.

I would like to thank those Members who have given cross-party support to this amendment. Senator Costello said that the description ‘Non-Party' will lose us votes. Senator Costello is not naive — he knows that is precisely the reason this is being put in so as to make it as difficult as possible for us. I will be seriously seeking to challenge whether this can be put through. Senator Costello made a very good point: why not have a bit of equality and describe candidates as just ‘Party' or ‘Non-Party' That would be a very fair description. If the Minister is prepared to accept that candidates from all parties will go under the term "Party" I will be very happy to accept that the Independents go under the term of "Non-Party". I think the Minister will have to accept that I am going as far as I possibly can to meet him.

There is one other point, but I am a bit reluctant to say this. Perhaps I will wait and see if there is any give on the Minister's side, but will I be allowed to come back once more with one other quick suggestion?

Acting Chairman

I have given you a lot of time on this amendment and I want to conclude debate on it.

We spent much longer yesterday on amendments of quite a trivial nature. This is profoundly important.

Acting Chairman

I was not in the Chair.

You were not in the Chair, and you are excellent in the Chair but this is most important. Quite clearly you have seen the support for this and I thank those Senators who have felt it possible to support this amendment. If the Minister absolutely cannot accept this amendment perhaps there is one other suggestion we could use to move a little closer to him.

The use of the word "Independent" should certainly be allowed because it is a downgrading to persons to have them described exclusively as ‘Non-Party' and not give them the option of being described as "Independent". Without going into all the points that have been made already, I very strongly urge the Minister to accept the amendment put forward by Senator Hederman on this point because it is not common sense to exclude the use of the word "Independent" in this matter.

Prior to 1963 the name of a political party could not be included on the ballot paper. There was a polite fiction that each candidate was contesting the election as an individual. The Electoral Act, 1963, recognised the reality that most people vote on a party basis. It introduced a system for registration of parties. Candidates who wished to contest as individuals or did not wish to register their supporting organisation as a political party could describe themselves as ‘Non-Party' or leave the space blank. The present section continues this arrangement without change. The arrangement has worked reasonably well for almost 30 years and there are no grounds for change at this stage. The expression "non-party" is neutral and its meaning is quite plain.

It is not neutral.

It indicates that a candidate is not a candidate of a registered political party. It is a simple statement of fact, like non-smoker, non-drinker, non-runner, non-racial, non-fiction, nongovernmental and non-political. I do not see now any hidden meaning or implication can be taken out of it; nor do I believe that non-aligned candidates in general dislike the expression or finding anything objectionable about it. In the 1989 General Election 29 candidates opted for to use the expression "non-party" while only 13 candidates decided to leave the space blank. If there was strong dislike of the expression one would expect the numbers to be the other way around.

Regarding the reference to non-Catholic, that expression can sometimes cause offence because it tends to be applied to persons who are Catholics, perhaps Anglican Catholics. The word "Independent" has several meanings and unlike "non-party", is not neutral. It carries the strong implication that persons who are not described as independent must be somehow less free, less self-reliant or have less initiative. Some non-aligned candidates would like to use it because it is a political claim, a form of advertising. In effect, the word constitutes the type of political reference that section 52 is designed to deal with. I have no objection to candidates stating their political position, but it should be done in the straightforward way laid down by electoral law.

There is also the possibility that at some stage a group may decide to seek registration as a political party under the title "Independent Party" or some variation of that title. This is not an uncommon name for a political party; a party of this name regularly nominates candidates at presidential elections in the USA and there was once an Independent Party in Northern Ireland. For good reasons I am not able to accept the amendment.

The core of this issue goes back to the fact enunciated by Senator Hederman that there are votes involved. The term "Non-Party" is a less useful term after one's name on a ballot paper than the term "Independent". "Non-Party" has all sorts of connotations suggesting that those politicians are unable to make up their mind or unable to figure out where they stand politically, whereas the term "Independent" states their position positively, indicating that they are not dependent on anyone and may make up their own minds on any issue. There are limitations to that position, but it is a choice which the public should be left in no doubt about.

The other side of the argument is that people do not describe themselves as "Non-Party." They describe themselves as "Independent" because they recognise that it attracts votes. There is a significant minority of Independent representatives in this country, many of whom have been elected to local authorities; and those of us who are non-university and not appointed by the Taoiseach are conscious of staying on the right side of the electorate at election time.

Much attention is paid to independent councillors throughout the country by people on all sides of the House. The "Independent" vote at local elections amounts to about 10 per cent, if not more. That is a significant minority of people who are discriminated against by the use of "Non-Party". If one refuses to describe oneself in negative terms, the alternative is to describe oneself as nothing at all — to leave a blank — with the implication that one has nothing to say about one's political position. Those choices are not fair. It should be possible to continue using the present political terminology. The term "Independent" is widely used and I can see no reason why it should not be put on the ballot paper.

I am disappointed that the Minister is not showing any flexibility here. It seems that he shows flexibility about trivia and concedes unimportant points to create an impression of openhandedness but he has stood firm on all amendments proposing significant improvements.

It was clever of the Minister to mention non-smokers and non-drinkers. May I ask the Minister to name the opposite of a non-drinker? It is a drinker. Not a vodka drinker or a gin drinker but a drinker. The opposite of non-party would be party, but the Minister is not prepared to countenance that. The opposite of non-smoker is smoker. One does not define a smoker as a Carrolls' smoker or a Virgina Sweet Afton smoker.

The Minister by his analogy has made the case for us. If there is to be discrimination between smoker/non-smoker, drinker/non-drinker I am happy with that. Similarly we will have non-party/party but we will not have non-party/Fianna Fáil Party in the same way as we will not have non-drinker/gin drinker.

May I also say to the Minister that until 1963 no party was mentioned on all ballot paper and that is now it should be. The Minister went on to say that it is accepted that people vote on a party basis. Who accepted that? The political parties did, but they may get a surprise when they find that because of this approach some people will vote for anybody except somebody with a political party affiliation. I appreciate the flexibility shown here this morning by some Members.

The Minister also suggested that the present system should continue, because it has worked reasonably well for 30 years. For whom has it worked well? The party people? The thrust of this debate is to allow political parties to feather their own nests by making sure, as Senator Costello said, that Independents are obliged to use a negative terminology or no terminology after their name and thereby lose votes.

I did not hear the Minister perfectly but I think he said that in 1989 13 candidates left it blank and 29 put Non-Party. Those 29 people may well have been strong party people who did not get a nomination, but that is not what Independents are. There is a chasm of difference between a party person who has not succeeded in getting a nomination and who opts to stand as non-party and an Independent candidate of no party affiliation. Non-party is perfectly acceptable and probably described those people accurately. Non-party people wanted a party nomination but could not get one. That is not what Independents are, and I put it to the Minister that the 13 people who left a blank were genuine Independents. The Minister went on to say that using "Independent" would be a political claim or even an advertisement. What does he think the words "Fianna Fáil" means on a ballot paper? Is that not an advertisement? How can the Minister say it is all right to advertise if one is in Fianna Fáil, Fine Gael, the Labour Party, The Workers' Party or the Progressive Democrats but if one is an Independent one is penalised? Finally, the Minister's Government had no hesitation in making the best deal possible with independent Tony Gregory. Independents can be useful on occasion and the Government may need their support again. I ask the Minister and everybody here to bear that in mind.

I am in sympathy with this amendment and I do not accept that a major problem would be caused by inserting the word "Independent" after "Non-Party". I say that for two reasons. First, it would express a political reality since the formation on the State. We have Independent candidates. I support Senator Upton's point that there is something positive about the word "Independent while the "Non-Party" tag is somewhat negative.

Politicians whether at local or national level serve the people and some of the most distinguished performers, whether in council chambers or in either of the two Chambers of this House have been Independent candidates during part or all of their career. Many distinguished people have used that term with pride to distinguish their political viewpoint. The term "Independent" is understood by the Irish electorate and has more general acceptance than "Non-Party". Quite frankly, I have problems with the term "Non-Party"; I have none with "Independent" but for the sake of progress I would accept both. I appeal to the Minister for the reasons well advanced by my colleagues to reconsider his view on this matter.

It is important to realise that our democracy is based on the party political system. We should tease out this amendment to its logical conclusion when we may encounter differences of opinion among Independents or Non-Party candidates or whatever they are called. According to the party political system a candidate's political party is inserted after his or her name. That description indicates their general ideology on various matters because parties adopt specific policy stands on recurring issues. That description does not apply to Non-Party or Independent candidates. Three people may have "Independent" after their names but might hold totally different views. That contradicts Senator Upton's point. One of those Independent candidates could object to being described by the same word as another Independent candidate. That may be the case already because I notice the Independent Members are not here in force to support this amendment. Senator Hederman is here on her own.

They are preparing for Maastricht.

I wonder if there is cohesion or co-operation between Independents or conflict? Senator Hederman might be delighted at some time in the future to say that she was Non-Party because if "Independent" were down after every Non-Party person she might find that situation objectionable. It might be in Senator Hederman's better interest to keep her independence of viewpoint by being Non-Party — if that is what she wants to be — rather than tied up in a lobby of Independents with differing views.

Senator Finneran made a point about differing opinions and the accuracy of the word "Independent". That is a moot point but I would argue it the other way. We are trying to be more accurate with descriptions and a Non-Party categorisation is a far from accurate description of anybody. "Independents" are known as such in the community. The word "Independent" is an accurate description of their political position, and we are concerned with providing an accurate definition and description of electoral candidate.

Non-party does not indicate anything; it is a category, a generic term that embraces all those who do not belong to any party and, therefore, must be inadequate. We are trying to improve on that. The Minister said that until 1963 — something I did not know — there were no political parties mentioned on the ballot paper, a fair situation because nobody was discriminated against. However in 1963 it was decided that that was inadequate; it afforded a categorisation but not a description and steps were taken to add the name of the political party. That was a step forward and we should now take a further step forward in the interests of accuracy and appropriate description.

They said that in 1989 29 people allowed themselves be described as Non-Party whereas nobody chose to put nothing in the place reserved for party name. Two poor options are available to candidates and they may choose the devil or the deep blue sea. Candidates went for the negative rather than for a blank; their choice was blank or negative "Non-Party". If a positive option were included people would no longer opt for "Non-Party".

My strongest reason for supporting Senator Hederman's argument is that we have obtained an improvement on the 1963 legislation that sought to define and to describe each political party under the general categorisation of political parties. We now have a specification which has led to a fairly accurate description. That is why we may vote for Fianna Fáil, Fine Gael, Labour or others. We should not throw all other candidates into a Non-Party negative category. We should distinguish them by the title those people are known by in the community and that is Independent. I urge the Minister to take that on board and to come bank with a third option of "Independent". If somebody wishes to leave it blank good and well; if somebody wishes to use "Non-Party" good and well, if somebody wishes to be "Independent" good and well.

I thought it was the custom in this House not to refer to Members who were not present; perhaps I am incorrect about that, but seeing that Senator Finneran brought it up, I would like to point out that a sixth of the Independent Bench is present together with a sixth of the Fine Gael Bench.

I want to answer Senator Finneran's point that perhaps I was not getting Independent support for this. There are no Progressive Democrats and only a seventh of Fianna Fáil present.

It is not our amendment.

I congratulate the Labour Party on having half their Members here throughout the debate. The other Members of my bench are going around the country giving information to the public on the Maastricht Referendum which they were sadly denied by the political parties.

Acting Chairman

That is not relevant. Speak to your amendment.

I ask Senator Finneran not to provoke me again in that manner. Senator Finneran said that democracy in this country is based on the party political system. I would like to remind the Senator that there is no mention in our Constitution of political parties and they are of a certain insignificance since they are not mentioned in the Constitution. Senator Finneran said that political parties had general ideologies, and I accept that parties hold specific views on various subjects.

The same applies to a candidate. A candidate has a general ideology but when a person votes for a Fianna Fáil candidate, such as Joe Soap, they have no way of knowing what Joe Soap's beliefs or ideas are because they have been subsumed under the title of the political party. Senator Finneran is not helping the Minister's side by saying that a party has an ideology; an Independent candidate also has an ideology and that is what they are putting forward to the people and asking to be elected on.

Senator Finneran's remarks about Independent candidates not being of the same mind applies also if they are obliged to call themselves "Non-Party". Perhaps Senator Finneran was not here when I said that an Independent, according to the dictionary, is a politician who does not commit himself to any party but reserves the right to think and act for himself. That is the word we want because it sums up our position perfectly.

I thank the Senators for their interest in this amendments and for their support. If the Minister is not prepared to take this on board, or to consider it and come back with some suggestions on Report Stage, I appeal to those Senators who have given support, and in some instances qualified support, to show their independence on this occasion by putting their feet where their mouths were a little while ago.

Sadly it seems that the Minister is going to keep to his stonewalling attitude and I find that distressing. Questions raised by Senators on all sides have not yet been answered and the Minister adopts a position of saving no more when he is unable to give satisfactory valid answers. The Minister said it would be complicated to have three options — Non-Party, Independent and a blank space. I have not had an opportunity to discuss this with all those who put their names to my amendment, but could the Minister consider dropping Non-Party and retaining a choice of blank or Independent? Would that allay the Minister's fear of confusing the electorate with three different descriptions? That would give a more accurate assessment to the electorate so that people might know who they are voting for. The Minister might contemplate that course of action and come back with suggestions along those lines on Report Stage.

When the name of a political party is entered after the names of a number of candidates on a ballot paper, it indicates that those candidates have something in common. When the expression "Non-Party" is entered after candidates' names, it indicates also that these candidates have something in common — that they are not members of political parties. If "Independent" is entered after the names of a number of candidates on a ballot paper it could mislead the public by indicating that they have something in common whereas they might have nothing in common.

What they have in common is that they are politicians who commit themselves to no party and who think and act for themselves.

The logic of Senator Mullooly's statement is for candidates to enter their names under one heading, people who are members of political parties without specifying——

One must identify the parties to which they belong.

"Non-Party" is not a specification either, so the logic would be to leave the two categories of "Party" and "Non-Party" but while that would be logical, it would not be accurate. In 1963 an attempt was made to improve the description by allowing individual party names to go forward, so we should not leave the Non-Party categorisation unchanged and Non-Party is not specific enough. One side has been improved but not the other. The terminology is inaccurate and it is wrong to be specific in relation to Members of political parties, and on the other hand, to lump all those who are not, under the negative umbrella of Non-Party. That does not do them justice and it would be improper for us to leave this provision in the legislation. It is an instance of blatant discrimination and the least the Minister can do is to take one of the options he has been offered, namely, a choice of blank, Non-Party and Independent or the option suggested by Senator Hederman of blank or Independent.

Most people going forward at an election put themselves down as belonging to a party and that party is registered in a proper manner. If I wanted to put my name down as Independent I would register myself in a proper manner as an independent party. There is no objection then to putting "Independent" down because one is then a properly registered political independents party.

Would Senator Fitzgerald come to my registrar who will not let us do that?

I appeal to the Minister to indicate that he is prepared to have a further look at this matter. Solid arguments have been advanced in support of including the term "Independent". I appeal to the Minister especially in view of the fact that cases are argued here on their merits. I was impressed with the concern expressed by Senator Mullooley and Senator Finneran about the confusion that might exist in the public mind with regard to the term "Independent". In their own constituency, there is little confusion about what "Independent" stands for.

Progress reported; Committee to sit again.
Sitting suspended at 1 p.m. and resumed at 2 p.m.
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