Amendments Nos. 98, 99, 104, 105, 108 and 109 are related and may be discussed together.
Electoral (No. 2) Bill, 1991: Committee Stage (Resumed).
SECTION 103.
I move amendment No. 98:
In page 61, subsection (1), line 44, to delete "impaired" and substitute "challenged".
This amendment relates to terminology. In particular it deals with terms such as "illiterate" and the use of the term "illiterate" when people are describing themselves. When somebody is illiterate it is embarrassing enough without their being obliged to take an oath and, as part of that oath, to say "I am so illiterate that I am unable to vote without assistance". That terminology belongs to the Dark Ages and I hope the Minister will be able to accept our amendments which talk in terms of people being impaired, incapacitated, challenged, more modern terms.
There is a lot of literature available on the usage of this terminology which is in support of the general principle we are trying to have accepted here. I believe that terminology is out of place in the modern world and it should be replaced with a more modern, more acceptable and less embarrassing usage of words for people who are already in enough difficulty. It is unacceptable for somebody who is challenged, or who is not able to read or write, to find themselves forced to take an oath to that effect. I hope the Minister would accept our amendment, which introduces a more acceptable modern form of words.
Section 103 restates with amendment the law in relation to voting by blind, incapacitated and illiterate electors. Under this section a person who satisfies the presiding officer that he is so impaired or that he is otherwise so physically incapacitated that he is unable to vote, may have his ballot paper marked for him on his instruction by a companion or, if he wishes, by the presiding officer.
Amendments Nos. 98, 104 and 108 propose to substitute the word "challenged" for the word "impaired". Where it occurs in section 103, amendments Nos. 99, 105 and 109 propose to substitute the word "challenged" for the word "incapacitated" where it occurs in the section. I understand that the word "challenged" in a sense in which it is used in the amendments is an example of a new correct political vocabulary which is currently fashionable in certain quarters. However, I have to say that I have searched in a number of modern standard English dictionaries, as well as in standard law dictionaries, and I have failed to find the word used in that sense in any of them. In legislation we must aim above all for clarity and must as far as possible use words and expressions which have a clear and specific meaning. The word "challenged" which the amendment proposes to substitute for the existing word in this section would, I believe, be confusing, unclear and could leave a doubt over the operation of the section. I would ask the Senators to withdraw this amendment.
I appreciate the point the Minister has made that he has not come across the term being used in that fashion in the standard dictionaries he may have consulted. The term we are introducing here —"challenged" to replace "impaired" or "incapacitated" or "illiterate"— is not one that would have existed in the very distant past. It has come into existence in recent times because of a concern by organisations who are dealing with people who have been impaired or challenged in their sight or hearing, or in their physical and mental ability to cope. Therefore, it is something that is not fashionable as such; it has developed because of the need to treat these matters with sensitivity and delicacy.
I would say to the Minister that, while he may not find this term in his standard Oxford Dictionary, it would be useful for him to consult with some of the organisations that represent people who are challenged either in physical or mental terms and he would find tremendous sympathy for using more satisfactory language in an electoral Bill. Perhaps the Minister would contact some of the organisations involved and see what their response would be to adjusting the language used here to a more benign form of words.
As I have already said, the term as used here is not in the standard dictionary, therefore I am not prepared to accept the amendments.
We have acknowledged that because this new meaning has developed over the last number of years. However, the organisations who represent people with difficulties are very concerned that we should use a more benign form of words. While these words may not be the orthodox dictionary definition, nevertheless they correspond to the human needs in this area. If we are putting together a consolidation Bill in order to provide the basis for our electoral law for the 21st century, the least we could do is to see that it corresponds with the developments that have taken place over the last decade in this area.
Very briefly, in relation to the last point, most of the dictionaries we have consulted were issued within the last 12 months. We have looked at all legal dictionaries and the term does not arise. Therefore I cannot accept the amendment.
Amendment put and declared lost.
Amendment No. 99 not moved.
I move amendment No. 100:
In page 61, subsection (1), line 45, to delete "is so illiterate" and substitute "has underdeveloped reading or writing skills so".
I thought we were discussing the amendment when I spoke last. Briefly, what I am saying is that I do not think it is wise, necessary or desirable that somebody who is illiterate should be forced to describe themselves in those terms. We have substituted for the term "illiterate" the words "has underdeveloped reading or writing skills" and we have incorporated that into the oath which somebody may be obliged to take if they are challenged at voting. I do not think it is desirable or acceptable in this day and age that that type of terminology should still be in use. It is very embarrassing for somebody who is illiterate to have to declare that. We should try to facilitate them and be as gentle as possible in allowing them to let that be known. There are a number of people who are illiterate and who go to great lengths to try to disguise that from the rest of the population.
This amendment relates to the most insensitive of the descriptions in the Bill. To describe oneself as being so illiterate as to need assistance means that the electors are being compelled to be self-deprecatory and to desnigrate themselves. The Minister can see the almost blatant need for a more sensitive wording to describe the situation and he should accept the amendment. The words "has underdeveloped reading or writing skills" would describe the same situation but in terminology that would do less potential damage to the feelings and self-esteem of these people.
I join in the protest against this form of words. The terminology is unbelievably offensive. Can anybody here imagine what it must be like to be asked to go in and take an oath, or whatever may be required under this section, and to say "I swear that I am so illiterate that I am unable to vote without assistance"? It does not bear contemplation that we should request a person to do that. I ask anybody in this Chamber, if it were their own case, would they feel happy taking an oath or affirming in whatever form that they are so illiterate that they cannot vote without assistance.
As I and other speakers have said since we started debating this Bill, in order to be constructive, if we could put ourselves into the shoes of people who will be involved in these proceedings, is there anybody here — and I see speakers offering from the other side — who would feel happy, comfortable or at ease making such a statement about themselves? I find it very difficult to imagine. What will happen is that these people will not vote because they will not be prepared to go through the denigrating, mind boggling procedure of having to use this form of words. To substitute them with what is proposed in amendment No. 100 — that is, "has underdeveloped reading or writing skills"— sums up the position more accurately than what is in the Bill. I ask the Minister to put himself in the shoes of such a person and to ask himself if he would contemplate swearing such an affirmation.
From the experience we have gained down through the years at various elections, I think very few people fall into this category now. I recall 25 years ago or more we would have, perhaps, five people in each polling booth in rural parts of Westmeath who would fall into this category; nowadays there may be one or two people. No matter what the numbers are, previous speakers have a point about the sensitivity of the wording in question and I ask the Minister to consider this humane request and to seriously consider a different formula of words.
I, too, support the case being made here because the word "illiterate" is not in keeping with present-day standards. A formula of words is required at this point and I suggest the words, "unable to read or write" rather than "illiterate". It is very embarrassing for votes coming into a polling station to have to indicate that they are illiterate. I appeal again to the Minister to look at this. A very strong case in being made by Senators Hederman and Upton and, on that basis alone, I hope the Minister would have the case reviewed.
I support Senator Upton's amendment. It is difficult to accept that all the advisers, legal and otherwise, could not find another word. I do not know if "disadvantaged" would be suitable but "illiterate" is not appropriate. Senator Cassidy was correct in saying the number of people who lack adequate learning is much lower than it was many years ago, but there are still many of them out there. You discover this when you go to the polling station on election day and find you have to pass them to somebody to be given assistance to vote.
If it does not interfere with the structure of the Bill, there should be no problem using some other word.
I support the tone of the case being made although I do not necessarily agreed with the amendment which proposes to substitute the words "has underdeveloped reading or writing skills" for "is so illiterate".
In the recent referendum, the voter simply had to put and CX in one of two boxes, yet, more than 7,000 people spoiled their votes. Obviously some people used that as a way of protesting, but we should address the question of teaching and guiding people how to cast their votes.
Fewer people today than in the past have the misfortunate to be in the category we are discussing here. Thre are however, many people who find it difficult to vote and we must address their situation. In many polling stations, polling officers are considerate when it comes to giving assistance to those who require it, but individuals living alone may not have friends to go with them or people to assist them at polling stations. First they have to find the table they should go to, and then they have to approach the polling officer. It is difficult for them to admit their circumstances, particularly when there may be many local people present who know them. It is not fair to put them on the spot and have to say they are illiterate or have underdeveloped reading or writing skills. This, is something that should be looked at by the Minister.
I do not know what the Department of Education have been doing about this problem. Obviously some progress has been made to combat illiteracy but a great deal more needs to be done. A more modern discription of diminished capacity in this area should be found and perhaps the Minister could come back on Report Stage with another wording. I would support the concept of the amendment but I do not know whether "underdeveloped" is necessarily the right description. A person may lack or have a diminished capacity for the skills of reading or writing. I ask the Minister to take note of what I and other Senators has said.
I feel very strongly about this section. We must, at all times, ensure that we maintain the dignity of the person many people have a reading and writing disability.
We should make voting as simple as possible to encourage as many people as possible who cannot read or write to vote. Many people do not vote because of the indignity of having to come into a polling station and make it known that they have this disability and they may not want neighbours to know. We should do everything we can do to maintain the dignity of the person.
I agree with Senator Cosgrave when he said that we should look at this situation in toto to see if there is another mechanism by which people who cannot read or write may be given an opportunity to vote. Handicapped poeple have a special voting paper. As the people incapacitated perhaps the Minister would consider giving them a postal ballot which would be properly supervised. I support my colleagues, Senators Foley and Cassidy, who prdoposed that the words “unable to read and write” should be substituted for “illiterate”, but it is my view the issue goes beyond that. We should look seriously at the overall situation, maintain the dignity of the person, allow that person to vote in private where other people will now know them haved this disability, and treat them incapacitated persons.
There is a basic principle involved here: every citizen who wishes to vote should be facilitated in so doing. It should be the objective of the Oireachtas and the State to ensrue that all citizens who have enough interest to go out on polling day to cast their votes should be entitled to do so. In some ways, this legislation contradicts that priciple. I believe it would be very wrong of us to restrict the basic right in any way.
Having said that, I realise that one must strikes a balance, in the sense that we cannot have abuses in the way the election is conducted. We have already discussed marks, numbers on ballot papers and the sort of abuses that could occur, but I do not see how this section can be so abused. I recommend strongly that a simple declaration or swearing that a person is incapacity does not matter. To be illiterate is to be incapacitated. I could envisage an extreme situation where a person is deaf and illiterate. I modated how they would be accommodated within the scope of this legislation. I am sure the Minister agrees with the principle they every citizen, however incapacitated, who wishes to exercise the democratic franchise should be facilitated under this legislation.
I would like to join with those who are suggesting that this issue is broader than the question of hte use of the word illiterate because I do not think there is any indignity involved in the use of that wods. The indignity may arise in relation to how the person who is nsoo describedd is treated at a polling station.
I agree with those who suggest there should be a better way of allowing these people to vote. It does not make any difference whether somebody is described as being unable to read or write or whether he is being described as illiterate; the problem is when he goes into the polling booth, he is taken aside and has to go through the indignity of voing in a special way. The form of words used to describe the disability is irrelevant; it is the way a person is treated at a polling station that is relevant.
I have never heard an illiterate person object to the use of the word illiterate, but I have heard illiterate people criticising the way they are treated, not alone at polling stations but in public places, when they go to collect social welfare benefits or go to a hospital. It may be necessary to widen the category of those who can vote either by post or by arrangement prior ot election day but how that can be done is a matter for the Minister. The word itself is not very important, it is the way people are treated that is important.
If I may take up that last point, I think the word is important, People are extremely sensitive about the way they are discribed when it refers to some challenge either to their mental or physical well-being. They can be extremely sensitive. People make huge efforts to disguise the fact that they are illiterate; in fact, it is one of the biggest blocks in getting people to go to adult education classes where ther are others present. The current approach is to work on a one-to-one basis. People are very concerned lest the public should know, they are embarrassed by the fact that they are illiterate because everybody is suppossed to be literate.
The points being made by speakers from the other benches are most welcome. What we are trying to do in this legislation is to facilitate the greatest number of people to exercise the right to vote and we should ensure that any obstacle to that is taken out of the way. We have pointed out throughout this debate that this is a particular obstacle. The forms of words used, particularly in relation to people who are mentally and physically incapacitated have been most insensitive thorughout the whole Bill. We have instanced it in relation ot references to imbeciles, to those who are physically incapacitated. We are now looking at references to those who are illiterate. The wording here is not in keeping with modern terminology. We should look at the whole Bill in this respect and try to get a better choice of words to facilitate to the maximum those people whose right to vote is being affected by the language that is being used here.
Even at this late stage, I suggest to the Minister that he should contact the organisations which represent the people about whom we are concerned here so that a form of words may be found which is more humane and sensitive and in keeping with modern terminology. The result would be better legislation, would facilitate people who go out to vote without embarassing them in any way. Perhaps the Minister might still take up that suggestion.
The word illiterate is defined in the Collins English Dictionary, 1991 edition, as “unable to read and write”. What is invovled here is a question of draft style. The meaning of the provision, as drafted, is clear. However, I will certainly look at it again and see if we can come up wth more suitablle wording. Senator Foley suggested we could use the wording “unable to read and write”. If the Senator wil withdraw the amendment we will come back to it in due course and have another look at it.
I thank the Minister for the attitude he has adopted to the debate. We will certainly withdraw the amendment and hope he will be able to come up with a more suitable wording.
Amendment, by leave, withdrawn.
I move amendment No. 101:
In page 61, subsection (2), line 48, after "candidate" to insert ",election agent, deputy election agent".
This amendment simply seeks to increase the number of people who can request that an oath be taken. We have sought to broaden it to include election agents or deputy election agents in addition to personation agents. The main concern here is that small parties such as mine may not have personation agents in every station. If an appropriate set of circumstances should arise we would like the election agent or the deputy agent to be able to go in and make such a request.
Under section 103 (2) an elector seeking assistance in voting may be required to take an oath or affirmation that he is unable to vote without assistance. The presiding officer may make a request of his own volition and must do so if required by any candidate or personating agent present in the station. Amendment No. 101 proposes that the candidate, his election agent, his deputy agent or a personation agent may require the presiding officer to put the oath or affirmation.
I notice that an identical expression is used in subsection (4) dealing with a similar situation but no amendment has been put down in that case, whether deliberately or by oversight. A somewhat similar situation arises in section 105 (2), section 110 (2) (e), and section 111 (2) (b) and again no amendments have been put down.
I do not think there is any question or principle or meaning involved here. What is desirable is that, as far asd possible, there should be consistency of expression throughout. If the Senator withdraws the amendments I will have a look at the sections concerned to see if a uniform formula can be used.
I thank the Minister for the open-minded attitude he has taken to this matter.
Amendment, by leave, withdrawn.
Amendements Nos. 103, 107, 129, 130 and 131 are consequential on amendment No. 102 and all may be discussed together.
I move amendment No. 102:
In page 62, subsection (2), line 5, to delete "sware by Almighty God (or —".
I understand that it has been proposed in the Law Reform Commission report that the use of the term "Swear by Almighty God" be discontinued. We are tabling this amendment so that the recommission report be agreed to and honoured.
Section 103 (2) provides for the form of oath to be taken or affirmation to be made by an elector, if requested, when applying for assistance in marking the ballot paper. Section 111 (2) provides for the form fo oath or affirmation to be used in cases where an elector's right to vote is challenged. This group of amendments would remove the option for taking an oath and an elector would be limited to making an affirmation. I understand it is the general practice in the courts, in tribunals of all kinds and in many other situations where a degree of formality is deemed necessary, tp require that evidence should be given on oath and where a witness does not wish to take an oath, on grounds of conscience, he or she may make an affirmation.
I understand that from the legal point of view the effects and implications are identical in each case. In the sections referred to, we are following this general practice and repeating the existing law on the matter. If it were to become a matter of national policy to abandon the practice of taking oaths and to substitute the making of affirmations in every situation where the taking of an oath is provided for at present, this should be done by way of a general provision applicable to every situation and perhaps something on the lines of the Statutory Declaration Act, 1938 might be appropriate. What is not appropriate is that a matter of this kind should be approached on a piecemeal basis. On this ground and without expressing any view on the principles involved, I cannot accept the amendment.
I accept the point made by the Minister that it is difficult to make changes of this nature on a piecemeal basis. The oath, in its present form, is used extensively in other areas also. What we are dealing with here is a matter of a purely secular nature, the right to vote, an affirmation in relation to the exercise of the franchise.
One could also take the view that one must start somewhere. The Law Reform Commission has recommended that this be the place where we start, namely, in the electoral legislation. I wonder why the Minister should choose to go against the wishes and recommendations of the Law Reform Commission report?
There is a certain dichotomy between Chruch and State. There are differences of opinion from time to time as to how that perception should be asserted. It offends a large number of members of the community that there is not a standard form which does no require an oath calling Almight God into play in a matter of this nature. The Minister could consider taking the initiative in this area and perhaps set precedent that could be followed in due course in relation to other matters.
I can only repeat what I have said. It is important that there be unformity in this area. I would prefer that this amendment should not be pressed, for the reason I have outlined.
Amendment, by leave, withdrawn.
Amendments Nos. 103 to 112, inclusive, not moved.
I move amendment No. 113:
In page 62, subsection (5), lines 42 and 43 to delete "and the personation agents".
This amendment has been put down primarily because of a concern that this part of theBill may be unconstitutional arising from the constitutional obligations to preserve the secrecy of the ballot. In the case of some of the provisions here it would seem to me that it may not be necessary to have the personation agent present when the elector is voting. I confess that a certain degree of concern could also arise if one looks at this from the other point of view, namely, that the personation agent may fill a role in ensuring that the ballot paper is marked in accordance with the wish of the elector.
Under section 103 (5) where a blind or incapacitated elector does not wish to have his ballot paper marked by a companion, or where the elector is illiterate, the presiding officer shall mark the ballot paper on behalf of the elector in the presence of the elector and the personaiton agents only.
Amendment No. 113 proposes to delete the provision under which the personation agent may be present where a ballot paper is marked by the presiding officer under this section. The purpose of having the personation agents present during this process is to enable them to satify themselves that the presiding officer complies with the instructions of the elector. An elector who is totally iliterate or has severely impaired vision will be unable to verify that ht presiding officer has marked that ballot paper as instructed. It is considered proper that the personation agents should oversee the marking. Otherwise the presiding officer could be put in an invidious position without protection against malicious charges of misdemanour. The presence of the personation agents would be essential of protect the interests of the elector and the presiding officer.
The procedure provided for the marking of ballot papers by the presiding officer was referred to in a Superme Court case of McMohan v. the Attorney General (1972, Irish Reports, page 69.) the court appeared to accept that the precedure was a necessary limiting of absolute secrecy. The Chief Justice of the day referred to it as reconciliation of the person's right to vote with a general right to vote by secret ballot. I ask the Senators to withdraw the amendment.
May I ask the Minister what changes there are in this Bill compared with what happened heretofore? I would like to satisfy myself as regards the point being made, the element of secrecy which should be maintained, and also another point. I know of a case of a home for the blind where 94 per cent of the votes went to one candidate in one party. I do not know whether it was done according to the procedure described here or whether there were one or two people watching at the time. Is the wording in the Act the same of that of this Bill?
Section 103 is identical to existing legislation.
It seems from what the Minister has said that the matter has already been dealt with and that the question of constitutionality has been covered. Is that correct? Has the possibility of its being unconstitutional in terms of a breach of secrecy been covered? I did not catch the gist of the case the Minister quoted, but perhaps he could confirm that for me. Nevertheless it does have a certain dilemma.
The presiding officer is the independent person who is there to preside over the procedure and to ensure that everything is operated in accordance with the law, whereas the personation agent is partisan and is acting on behalf of a particular candidate. It undoubtedly is a breach of the secrecy of the ballot. On the other hand, one has to take certain percautions to ensure that the presiding officer is not operating improperly in relation to the wishes of the elector. As we have seen in the Bill already, there is no comeback against presiding officers if they are in breach of their duties in the matter.
We have a dilemma between, on the one hand, the secrecy of the ballot and on the other, the fact that the personation agent would be obviously in breach of the secrecy of the ballot being a person who may have an interest in seeing how an elector votes. It does not resolve the problem. The problem is still here once the personation agent is present.
Can the Minister confirm that the constitutional issue was dealt with already, and can he indicate how to deal with the dilemma of the secrecy of hte ballot being breached?
The Supreme Court appears to accept that the procedure was a necessary limiting of absolute secrecy. The Chief Justice of the day referred to it as a reconciliation of the person's right to vote with a general right to vote by secret ballot. The need to have the presiding officer's actions witnessed by an independent person was discussed fully in relation to voting by special voters. In that case his actions are witnessed by a grada. The presence of a witness is essentially to protect the presiding officer against any malicious charges.
The merely confirms the point I was making that while the presiding officer is an independent person whose duty is to oversee the full operation of the procedure at the polling station, a personation agent is definitely not so. The matter has been resolved in relation to the special voter by bringing in a member of the Garda Síodchána who is also in an official independent capacity.
The Minister argued earlier that we need somebody present who would be above question and above suspicion while the vote was being cast. In this case it would seem that the personation agent is certainly not the person who should be inspecting the vote that has been cast and becoming aware how an individual person voted. That person may have no wish that any partisan person of any party should be present to see how he or she voted. We certainly have an infringement of the rights of the more vulnerable members of the electorate in this section.
I support the point ably made by Senator Costello. If it is the presiding officer and a member of the Garda Síochána, that independence about which Senator Costello spoke would be maintained, but if it is the presiding officer and the personation officer, that independence is not mentioned. Is there any reason it could not be a member of the Garda Síochána who would oversee the matter?
It must be intimidating for members of the electorate to be collected at the home at which they are residing. They are likely to be either elderly or in a home for the deaf or for the blind. They would be collected, probably by a member of a political party and brought to the polling station and would obviously, by that act alone, feel under a certain obligation. That is the way of human nature. It is right that they should feel under the obligation if they have been looked after, cared for and cosseted and brought along. The driver may offer to wait to bring them home again and will tell them to vote the right way, all that sort of thing. They might want to vote for a member of a different party or even, God forbid, for an Independent who henceforth should be known as "Non-Party", but suddenly they realise that the personation agents will be watching as their paper is being filled out. That can hardly be conducive or helpful to having them vote the way they want. I wonder if the Minister could look at this again.
Agents of all candidates are entitled to be present for the vote if they wish. It is not restricted to any one agent. Making provision for the substitution of the requirement for the presence of agents at this process by the presence of some other person, such as a garda, would not be practicable. While one or more gardaí may be in attendance at a polling station, there is no statutory requirement that they be present, and in practice there may be polling stations at which gardaí are not on duty at all times or for the whole of the polling day. I would also point out that blind of incapacitated person can have a companion with them if they wish when they are voting.
I am still very unhappy with the Minister's response. The provision refers to the presiding officer in the presence of the elector and the personation agent and no other person. A companion cannot be present while the ballot paper is being marked, only the personation agent. The personation agent is an unsatisfactory person to have present.
I thought there was a member of the Garda Siochána present at every polling station. It may not be compulsory but I do not recollect being at any polling station where there has not been a garda present. If the majority of polling stations, if not all, have a garda present, it would be a simple matter to call in that member of the Garda Síochána rather that the personation agent or agents whom the electors might very strongly oppose being present while they actually cast their vote to see what way they cast it.
It remains a big problem for us that it is only those people who are already experiencing difficulty, those people who are physically or mentally challenged, who are to have this further difficulty of having the personation agent present, with or against their wishes, without having any choice in the matter, to see which may they voted. That may cause them trouble and embarrassment at a later stage. It is still not satisfacory.
Perhaps the Minister would indicate whether it might be possible for the Garda Síochána to deal with the matter, whether there is a garda present at all polling stations and, if not, whether it would be possible to have them at all polling stations.
I am getting more worried about this section as I read it and listen to the Minister. As somebody who is not a member of a major or even minor political party, somebody who has heretofore called herself an Independent but now will have to call herself Non-Party, I can assure the Minister that it is only the major political parties that can maintain the presence of personation agents at all the polling places particularly the small ones. If personation agents of a Non-Party person are thin on the ground, they will probably be asked to go to the polling places where there is a large number of voters.
In the case I have outlined, it was a home of the blind. There were over 100 electors on the register for that home and 94 per cent of them voted for a particular candidate. Now, of, course, I realise it came about because one of the candidates was present in the room where the voting was taking place. That candidates was from one of the main political parties and had a personation agent there. None of the other candidates had a personation agent in that hall because it was a small place. I had always meant to check what safeguards were in place in the Act because I was unhappy and concerned at the result.
At the previous election and at a subsequent election where that candidate was running, he got nothing like the same percentage of the vote in that home for the blind. I was aware that something abnormal had taken place, simply because none of the non-party candidates or the smaller parties had any personation agent there. There was the candidate who was in the polling station at the time, the personation agent for the party of that candidate and presumably the presiding officer. A subtle coercion was exercised because the electors realised they were in the presence of people from that party and they felt constrained to vote for their candidate.
There is a serious problem here and some change will have to be made. In the case in question I have not given the name because it would be unfair to do so without giving the candidate involved the opportunity to reply. The candidate is dead now, so it puts me at a certain disadvantage. The Minister would need to look at this section if he does not want a repetition of that kind of thing.
We have spent an hour discussing this amendment. I must ask if amendment No.113 is being pressed.
Yes.
Amendment put and declared lost.
I move amendment No.114:
In page 62, subsection (5), line 44, after "elector" to insert "(or leave it blank or spoil it if so instructed by the elector)".
Acting Chairman
Amendment No. 114 has already been discussed.
Did the Minister reply?
Acting Chairman
It has been discussed and the Minister has spoken on it.
Amendment put and declared lost.
I move amendment No.115:
In page 63, subsection (6), line 5, after "electors" to add ", but in this case, the presiding officer may designate some other person to perform the functions conferred by this section."
This amendment seeks to deal with the provision whereby the presiding officer may run into problems in terms of coping and dealing with requests which are made in the two-hour period prior to the close of poll. He is given discretion to refuse certain people the right to assist in casting the vote, etc. It also allows him to abstain or refuse to assist certain categories of people in the process of casting their vote. That is somewhat undesirable and it certainly creates a discrimination in relation to people who arrive at the polling station in the last two hours prior to the close of poll. We suggested allowing the presiding officer to delegate some of his responsibilities in relation to this matter during that period when he would not be able to cope with the demand for his services.
Section 103 (6) provides that the presiding officer may refuse a request from a voter to mark the ballot paper for him in the last two hours of polling if in his opinion acceding to the request would interfere with the proper discharge of his duties or would unduly obstruct voting by other electors. This amendment proposes to give the presiding officer power to designate some other person to perform his functions under this section in relation to the marking of a ballot paper on behalf of an elector. The presiding officer is authorised under section 94(4) to delegate to the poll clerk anything he is required or authorised to do under this Bill, except ordering the arrest, exclusion or rejection of any person from the polling station.
In theory at least, the presiding officer could authorise the poll clerk to mark the ballot paper for the elector. At polling places where a supervisory presiding officer is employed, that is, in any building housing more than four polling stations, the supervisory officer could be called on to assist. Quite obviously, if either of these arrangements was practical, the electoral request would not be refused. The idea that the presiding officer would delegate one of his statutory functions to any other person, for example, the personation agent or any elector, is not acceptable and I ask that the amendment be withdrawn.
Amendment, by leave, withdrawn.
Section 103 agreed to.
SECTION 104.
Acting Chairman
Amendment Nos. 116,135,140 and 147 are related and all may be discussed together.
I move amendment No.116:
In page 63, subsection (2), line 26, after "statement" to insert "(which shall be published in Iris Oifigiúil as soon as may be after it is made)”.
This amendment deals with statements which are made by the presiding officer in relation to a series of irregularities. What happens to these statements? Who uses them, who reads them and where are they sent? It is important that at least some aspects of those statements be published. I am not so sure I am in favour of having published the names of the people whose votes in effect were stolen by somebody else, but certainly it is important that the total number of personation incidents be made public and that that information be analysed and scrutinised. It will give an indication of where there are problems and a clear pattern of personation difficulties. If in some polling stations quite a number of ballot papers or votes in effect were stolen and in other areas they were not, then one could set about working out the basis for that and making appropriate measures to prevent it. That would be very important information for political parties, particularly the smaller parties who do not always have the resources to man each table to record all the events taking place. For those reasons I would like to see these statements mads available to the public so that we can have analyses of the difficulties which occur during pollling and the patterns that emerge and can review the difficulties and imbalances in certain areas and between and within polling stations.
These amendments relate to four type of statement drawn up at different stages of an election. Section 104 (2) requires the presiding officer to make out a statement recording details of cases in which ballot papers were issued to electors who claimed to have been personated. Section 114 (2) requires the returning officer to prepare a statement showing the result of the verification of the ballot paper accounts for all the ballot boxes used in the constituency.
Section 118 (3) provides that the returning officer shall prepare a statement showing the number of ballot papers rejected by him at the counting of the votes and giving the reasons for rejection. Under section 127 (1) the returning officer is required to give public notice of the results of the election and details of the voting. Each of the statements referred to is retained with the other election documents for a period of six months and may be produced in court if required and may be inspected and copied at the office of the Clerk of the Dáil. The statement on rejected ballot papers may also be inspected and copied by agents present at the count.
The report on the verification of ballot paper accounts and details of rejected ballot papers are included in the report to the Clerk of the Dáil furnished to each returning officer, which I understand is laid on the table of the House. Details of the voting, including rejected ballot papers, are, of course, published in the media, in works by Deputy Nealon, Magill magazine and others, as well as in the so called Brown Book published by order of the Dáil after each general election.
The proposal in amendment that these statements should also be published in Iris Oifigiúil would not be appropriate and I do not see that such publication would serve any general public interest in connection with a Dáelection receives the widest possible publication. It is very difficult to visualise what segment of the public would be served by publication in Iris Oifigiúil that is not reached by the methods of publication I have already referred to.
I wonder if there would not be a value to the public in having the information referred to in this section published at an early date. What we are talking about is the number of ballot papers, the number of electorate, the numbers rejected and, above all, the level of personation that place. It may be that wholesale personation could take place in a particular area. If that is the case, is it not important that there be an official publication of all the relevant material? It is not much use that it would be published in Deputy Nealon's or Deputy Brennan's guide to the Dáil election. That is unofficial. We are looking for the raw data of the report by the presiding officer of the information available, so that it can be examined clearly by the public to see whether there are any levels of abuse in constituencies throughout the country. It is exactly the type of information that should be published in Iris Oifigiúil to ensure that there is a clear monitoring of the Dáil elections at all times and that there is no non-disclosure of relevant information in relation to the possibility of any abuse taking place in the casting of ballots.
The statement in relation to personated voters under section 104 for a polling station could be referred to in the event of a prosecution for an electoral offence. Essentially, however, it is part of the arrangements whereby the presiding officer accounts for the ballot papers entrusted to him. It is part of the ballot paper account form and is not in a form suitable to publication. There are close on 6,000 polling stations throughout the country; this form is completed for each station. I understand that in the vast majority of cases a nil return is furnished.
The propriety of publishing the names and numbers of the register of persons in whose name someone has already voted is questionable. Under section 111, where a ballot paper has already issued in the name of an elector who applies for a ballot paper, the presiding officer may put to him on oath or affirmation, or the questions prescribed under section 111 or request evidence of identity. If the elector refuses to take an oath or answer the questions put to him satisfactorily, or to satisfy the presiding officer as to his identity, he will not be given a ballot paper.
It would thus be reasonable to expect that the names of electors appearing on the statement prepared by the presiding officer would be those of the presiding officer would be those of the innocent victims of personation. Publication of these names, far from identifying, and embarrassing the guilty party, would merely serve to cast suspicion on the innocent party.
There is a certain merit in all that data being compiled in a readily accessible form. I have been around politics for quite some time and I did not know of the existence of that type of information in the manner which the Minister has indicated which, of course, may be another reason we have not got further in our political endeavours.
Amendment, by leave, withdrawn.
Section 104 agreed to.
SECTION 105.
Acting Chairman
Amendments Nos. 117 to 121, inclusive, are related and may be discussed together.
I move amendment No. 117:
In page 63, subsection (1), line 35, to delete "shall" and substitute "may".
This part of the Bill seems to be very restrictive and cut and dry in terms of the requirements on the Garda. I would have thought it desirable that the gardaí should be allowed to use their discretion where presiding officers had reasonable cause to believe that a person who applied for a ballot paper was committing or had committed a personation offence. There should be some degree of discretion left to the gardaí in those circumstances rather than that they should be obliged to comply with such directions as have been issued.
In amendment No. 120 we are suggesting the deletion of "believes" by the substitution of "has reasonable cause to believe". This is a reasonable amendment. The use of the word "shall" removes discretion and leaves very little alternative to people who are given orders by various people. That might be reasonable enough and I accept that there is the provision that they must have reasonable cause to believe that someone is committing an offence. The personation agent has to declare to the presiding officer that he believes and undertakes in writing to prove that the applicant has committed personation. It is possible for these people to be wrong and in those circumstances it would be appropriate that the garda on duty should have an element of discretion in terms of how they behave and how they act arising from requests from the various agents at polling stations. This also has to be seen in the context of total liability in terms of law cases and so on to be taken subsequently. We could fix damages for a maximum of £500 which really is not a lot of money in present circumstances.
Section 105 deals withe the arrest of a person committing personation. this section reproduces existing law without any change. This section permits a garda of his own accord or on the direction of a presiding officer to arrest without a warrant a person suspected of committing personation. It allows the presiding officer to direct the arrest of such a person on his own initiative or at the request of a personation agent. This section provides that no action will lie against the presiding officer in respect of the arrest of a person on his direction without malice.
The group of amendments propose various changes in this section. The garda would not be obliged to obey a direction of the presiding officer. The presiding officer would not be required to act on the request of a personation agent. A rewording of subsection (3) is proposed and a clause protecting the presiding officer against legal proceedings arising from the arrest of a person would be removed. To put this section in perspective, it is fair to say that the arrest of a person at a polling station is a rare event. I would expect that most presiding officers would never find themselves in the position of having to order somebody's arrest.
My reaction to the proposed amendments would be that if the presiding officer is to be given power to order the arrest of a person, then the power must be an effective one. In other words, the garda would have to obliged to carry out the order. If not, there would be no point in giving the presiding officer the power in the first place if the garda were to refuse to act on the direction of the presiding officer. The authority of the presiding officer would be undermined and an intolerable position created. However, I am inclined to agree that the presiding officer should not be obliged in every case to act on the request of a personation agent. The decision whether to order an arrest should probably be a matter for the presiding officer.
I am inclined to agree also that the suggested rewording of subsection (3) clarifies the power of the garda. I think subsection (2) might also be improved by substituting "direct" for "order" in line 41. In regard to subsection (5) I believe it provides a valuable protection and reassurance for the presiding officer which it would be important to retain.
I would see no difficulty in accepting amendments Nos. 118 and 120. I suggest, however, that it might be preferable if the Senators would withdraw the group of amendments and let me have a look at the entire section for Report Stage.
That is a welcome statement from the Minister in relation to amendments Nos. 118 and 120. I am delighted that he is prepared to examine the entire section. May I make one or two points that he might hear in mind when he looking at the group of amendments. The first point is that the garda is subject to the authority of the presiding officer but, of course, the Garda Síochána must enforce the law. He has a primary responsibility, above any other citizen, to ensure that the law is properly implemented and for a presiding officer to actually direct or order—and he must comply with the direction or oerder— another citizen seems to me to be out of line with the powers of a members of the Garda Síochána. A greater degree of flexibility must be allowed in that section in relation to those provisions.
Amendment No. 120 proposes the words "has reasonable cause to believe". If accepted, this would tie in properly with the first line of section 105 (1) which states "Where a presiding officer has reasonable cause" and also with subsection (3) where it is stated that a member of the Garda Síochána may, without any warrant, arrest any person whom he has reasonable cause to believe is committing an offence.
The other point I wish to make is that the powers prescribed for the presiding officer in this case are extensive. Throughout this legislation, we have questioned the extensive powers that are given to the presiding officer without any accountability. I have no problem with the presiding officer having extensive powers but there is no inbuilt accountability. If we are to allow that situation to operate we have to ensure that there is accountability. We must remember that blanket immunity is given to the presiding officer, irrespective of any negligence on his or her part and, therefore, the powers outlined in this section are extensive. I am delighted the Minister has agreed that there is need for a revamping of this section and I look forward to hearing him on the matter on Report Stage.
Amendment, by leave, withdrawn.
Amendment Nos. 118 to 121, inclusive, not moved.
Question proposed: "That section 105 stand part of the Bill."
I understand that if a personation agent believes a member of the electorate has been guilty of personation the agent can request the presiding officer to take action. Before the personation officer does that, he declares to the presiding officer that the he believes and undertakes in writing to prove that the applicant has committed personation. Is that a fairly straightforward precedure? As I see it, that must all happen before the person who has committed the personation has left the polling station. How complicated is that process? I was present on one occasion at Oakley Road where a person was accused of personation and was subsequently arrested. It took a while for it to happen; in that instance the school is quite far inside the grounds. Section 106 (3) refers to "any land within the curtilage of the building". Does that mean land between the building and the gate; between the building and, say, the public footpath? Does it mean within the building itself? If the person committing the personation was still in the grounds of the building, could——
Acting Chairman
The section deals with arrest of persons committing personation.
Section 105 (2) states:
...a personation agent declares to the presiding officer that he believes and undertakes in writing to prove that the applicant has committed personation,
Acting Chairman
That will be dealt with in debate on section 106.
Question put and agreed to.
SECTION 106.
I move amendment No. 122:
In page 64, subsection (2) line 10, to delete "may at any time" and substitute "shall".
Section 106 (2) reads:
The presiding officer may at any time remove from the polling station all material which advocates the candidature of particular person or persons or of members of a political party.
We want to delete "may at any time" and substitute "shall". Everyone agrees it is undesirable that that type of literature should be available within polling stations. The general practice has been to ban it and to prevent people from carrying or displaying it in polling stations. The general practice has been to ban it and to prevent people from carrying or displaying it in polling stations. There should be an obligation on the presiding officer to remove such material from the polling stations. I cannot see why a presiding officer should not be able to ensure that this happens rather than that the presiding officer should have the discretion. It is possible that the presiding officer, given the way this subsection is worded, could allow people to go around polling stations carrying political emblems, badges and various other means of advocating voting for one person, one party or groups of candidates. It is undesirable that this should be left to the discretion of the presiding officer. Any suggestion of bias which might be levelled at presiding officers in this area, would be removed if there was an obligation on presiding officers.
I support this amendment. Regularly people receive election literature on their way into a polling station which they take in with them and may even look at when they are voting, and leave bundles of it behind them on the table whee they vote. This literature is not removed by the presiding officer and the next person who arrives to vote will see on a leaflet—for example, Vote No. 1: Senator Upton.
Splendid.
It should be the duty of the presiding officer to ensure that there is no election literature left in the voting cubicle. Subsection (3) states:
For the purpose of this section a polling station shall be deemed to include all parts of the building and any land within the curtilage of the building in which the polling station is situate.
I have never understood the word "curtilage" although I use it a lot. What is meant by "any land within the curtilage of the building"?
This is a straightforward amendment but it is an important one. At all elections in which I have been involved, including the recent referendum I have seen material relating to either the referendum issue or the candidates within the confines of the polling station and, indeed, at the polling booth. Subsection (3) shows no sense of urgency about the removal of literature. There should be a specific obligation on the presiding officer not just to exercise his or her discretion but to ensure that it be strictly adhered to and that no material be left within the confines of the polling station. that ties in with the provision in the Bill where it is proposed that, in future, political parties would not canvass or that literature would not handed out within 50 metres of a polling station. If that is the direction being taken, it should be mandatory that all literature be disposed of prior to entry into the polling station. The least we can do is ensure that it is a compulsory requirement—allowing no flexibility or discretion—on the presiding officer to ensure that all material is removed from the polling station.
Section 106 (2) provides that the presiding officer may at any time remove candidates' election literature found in or around the polling station. Amendment No. 122 proposes to make it obligatory on the presiding officer to remove such literature. The intention is that the presiding officer will have any such literature removed as soon as he becomes aware of it. The manual for presiding officers is specific on this point. We must, however, keep in touch with reality and avoid placing a statutory obligation on the presiding officer which it may not be possible to fulfil.
Subsection (3) defines a polling station for the purpose of this section as including all parts of the building and any land within the curtilage of the building— which is the school yard—in which the polling station is situated. This includes not just the room where the polling station is set up but the entire building, usually a school and a schoolyard.
The presiding officer's job is to conduct the poll in his station and to facilitate voting by electors. Obviously, he must concentrate on this task and must not allow himself to be deflected from this and cause delay and inconvenience to electors by spending time removing posters and leaflets. The wording of the provision is correct and is used quite deliberately. It should be retained and I ask that the amendment be withdrawn.
Acting Chairman
Is the amendment withdrawn?
It is not being withdrawn. This provision is too vague. The Minister has indicated that there are regulations covering this matter for the presiding officer but the parent legislation does not reflect any strictness of regulation. The words "the presiding officer may at any time remove" are not in accordance with what I would consider to be the appropriate duties of a presiding officer. This provision allows absolute discretion, it does not even suggest that it is desirable to remove such material or show a slight bias that there is anything wrong with it being there. It simply states that he "may" remove it. It does not even say that the presiding officer "must" have it removed as soon as he becomes aware of it but only that he or she may at any time remove it. There must be an onus on the presiding officer to ensure that all material is removed at the earliest opportunity. I urge the Minister to examine this matter again with a view to tightening the wording to ensure that the offending material would be removed at the earliest possible moment.
This is an important amendment. If the Minister's intention was to ensure that there would not be election material within the curtilage of the building or in the polling station, he should tighten up this section. He said the intention was that as soon as the presiding officer becomes aware of election material in the polling station, building or within the curtilage of the building, he would have it removed. I suggest that if the presiding officer knows, sees, or is aware that election literature is being distributed as people come in to vote and that they take it with them to the polling station, that means there is election material in the polling station. Why does the legislation not go further than this amendment suggests and prevent voters from bringing literature into the polling station? I know there is a change in legislation and that those distributing literature will have to stand further from the polling station than heretofore, but surely it is the Minister's desire to ensure that no election literature is inside the building. If that is the intention presumably the presiding officer could prevent people from taking the literature in with them.
I support the case made because every time I have voted, there has been election literature on the table where you sign your ballot paper. That is most undesirable. I will doubt the Minister's bona fides in this matter unless he tightens up this section and I will, sadly, be led to the opinion that he is rowing along with a section which militates against the Independent candidate—or as the Minister now wishes them to be called the Non-Party candidate. On that point I hope the Minister read the article in a Sunday newspaper that there is going to be an——
Acting Chairman
That is not relevant.
It is relevant because an independent Party is going to be formed. I thought the Minister would like to go to their first meeting and tell them how to get an Independent Party registered.
Acting Chairman
That is not relevant.
As Senator Upton said he has been around for many elections —we have all been around for quite a few elections—and when we go into a polling station rarely to we see such literature; many people put it in their pockets or into their bags. Is Senator Hederman suggesting that everybody should be searched before voting? Otherwise how can you stop this practice?
This amendment, if accepted, would put another duty on the presiding officer. I understand waht the Minister is getting at here. the presiding officer has to preside and, in the majority of cases he takes the literature away. What happens at peak-times when perhaps a number of people come in together and for a moment or two there may be one or two pieces of literature lying about? Who is to take an action against him? Do we have to look at that as well? In most cases the presiding officer takes the literature away. As candidates we are not even allowed wear badges and we would be stopped by the garda and the presiding officer before we go in to look at the figures and percentages. If they are strict with us, they will be careful with the literature.
Senator Bennett raised a very good point. I was not suggesting that people would be searched or that their handbags would be examined as they were entering the polling station. I am talking about people who blatantly walk in with papers in their hands, and the writing visible for all to read. Those people take their ballot papers from the presiding officer, walk over to the table with this literature in their hands, but the presiding officer does not ensure that that literature is removed. Dozens of people go into that same polling booth where the election literature is placed.
Acting Chairman
Is amendment No. 122 being pressed?
This subsection is too vague. We have given the presiding officer very strong powers in other sections but here we are saying, in a lethargic fashion, that he "may at any time remove from the polling station all material...". We are not making it obligatory. We should state clearly in the Bill what we want to be the desired outcome; that is not done in subsection (2). The desired objective can be expressed much more strongly and still allow for the situation where the presiding officer is not able to keep an eye on the entire building or the curtilage of the building so that, occasionally, literature is left there.
My view would be that, in keeping with the other amendment, to keep political parties and canvassers well away from the polling station, there should be a sign out front saying that all literature is prohibited and bins should be provided for the collection of such literature. Perhaps the Minister would consider putting that into the legislation because the provision as it stands is unsatisfactory.
Subsection (2) puts no obligation on the presiding officer to remove all election literature. If he wishes he may leave it. This is not good enough when we want an independent and non-partisan ballot in the vicinity of the polling station. I am sure no candidates are unduly influenced by material that has been left advertently or inadvertently at the point at which somebody is about to vote.
Unless he has the properties of Boyle Roche's bird, the presiding officer cannot be expected to hand out ballot papers and at the same time chase literature around school yards. In most cases, particularly in polling stations located in urban areas, it would seem unreasonable to require the removal of such material immediately. It would not be practical for a presiding officer either through his own action or by directing his poll clerk to be fully aware of the incidence of such material throughout the building and the adjoining grounds.
I would like to explain to Senators that this provision is aimed at election posters posted on gates, walls and railings of a polling building or its curtilage, as well as in the actual voting compartments. It would be a matter for the presiding officer to keep himself informed at the opening of the poll, and regularly throughout the day, whether the provision is being complied with and to deal with any such posters, etc., if they are present. The wording of the provisions enables the presiding officer to act under this subsection any time should he consider it necessary. I will look at including the word "shall" between now and Report Stage.
Amendment, by leave, withdrawn.
Section 106 agreed to.
Section 107 to 109, inclusive, agreed to.
SECTION 110.
Amendment No. 123 not moved.
Section 110 agreed to.
SECTION 111.
I move amendment No. 124:
In page 66, subsection (2)(b)(ii), line 30, after "Minister", to insert "with the prior approval of both Houses of the Oireachtas".
We are seeking that the various regulations in providing evidence of identity be discussed by the Houses of the Oireachtas rather than be covered by regulation. I have no doubt the Minister will say this type of provision is unwieldly, but I feel it would help significantly if it were discussed by the Members of the Houses of the Oireachtas. We all have experience of elections and know the frustration that some people experience when they are asked for evidence of identification and one cannot provide any. I know of a case where a lady simply refused to vote because she was asked for identification. She felt, somewhat wrongly, that a person who had been voting in the same polling station for the past 20 or 25 years should be known by everybody at that station and she became quite offended when the personation agent demanded that she produce some identification. Members of both Houses of the Oireachtas have considerable experience in these matters and their contributions would be worth listening to.
Section 111 (2) (b) provides that the presiding officer may on his own initiative or at the request of a personation agent request an elector to produce evidence of identity. The elector must produce one of a specified list of documents and if he fails to do so he may not vote. The documents which may be accepted for this purpose will be specified in regulations made by the Minister. Under section 3 the regulation must be laid before each House of the Oireachtas and may be annulled by resolution of either House.
Amendment No. 124 proposes that the regulations should be subject to prior approval of both Houses of the Oireachtas. It is a common, almost universal, practice in legislation to empower a Minister or other specified authority to make regulations for the detailed implementation of the statute. The purpose of this arrangement is to ensure that the Oireachtas itself will not become bogged down in consideration of the detailed and often minute provisions that may be necessary. The intention is that the Oireachtas would concentrate on the broad principles leaving the detail to be filled in by legislation.
In exceptional cases where the matter is of particular importance a requirement may be included that the statutory instrument must have the prior approval of both Houses. We are doing this, for example, in the present Bill in relation to section 8 which provides for extension of the Dáil franchise and in section 20 where power is given to the Minister to amend the rules for registration of electors. I do not see how the present section which simply enables the Minister to list acceptable identity documents can be included in the same category, especially where there is already in existence a set of regulations setting out those documents and we know that it is the intention of the Minister to specify the same documents again. I suggest that the amendment be withdrawn.
The Minister said he intends to use the same documents as are specified at the moment. What are those documents?
I am intensely amused to hear the Minister saying that it is not intended that the Houses of the Oireachtas should become bogged down with minute detail, that they should concentrate on the broad principles and leave the details to be decided under regulations. The Houses of the Oireachtas would be a meaningful place if that were adhered to but, as I constantly repeat, the problem is that Ministers consistently and persistently get involved in and got bogged down with minutiae. Is this a change of heart and, for the second half of the year, may we assume we will not see the Houses being bogged down with minutiae but rather concentrating on broad principles and leaving the minutiae and the details where they belong?
I say this specifically in the context of the work of the Department of the Environment. They could leave a great deal of detail to the local authorities but instead we have legislation dealing with taxi drivers, what sort of permits they will be given, minute details of cycle-ways and so on. These matters are properly the remit of the local authority but the Department interfere with every sewerage scheme, rural house, waterworks, and so on. Is it the intention from now on that the Oireachtas will no longer be bogged down with minutiae and that Ministers will attend to the jobs they were elected to do, namely, to concentrate on the broad principles and leave the details where they belong?
I am sure the Minister will respond to some of the points made by Senators Upton and Hederman. We are talking about new legislation and a new set of specified documents. When I say "new" I mean we are going to review the situation once again and the Minister, according to the provisions here, will specify them in regulations. I presume this is something that will not change dramatically over the years. I cannot see how the Oireachtas could get bogged down in it. It is simply a question of agreeing what could be regarded as an appropriate set of documents that would be accessible to all citizens.
One will not find more appropriate people to give advice in the matter than the Members of both Houses of the Oireachtas because they all have had to go through the procedure of being elected. They have had to deal with people who had difficulty with identification and being able to exercise their franchise. It is not a matter that should be left simply to the discretion of the Minister. We do not want to put all power in the hands of the Minister and I am sure the Minister would not really want it either. It would seem appropriate that we should approve a list here in this House and in the Dáil rather than leave it to the Minister. The list should cover a considerable period of time and as this matter is sufficiently serious the expertise and the knowledge of Members of both Houses of the Oireachtas should be called upon the drawing it up.
Amendment put and declared lost.
I move amendment No. 125:
In page 66, subsection (2) (b) (ii), line 30, after "section" to insert "provided that in advance of making such regulations, the Minister is satisfied that every elector is capable without undue difficulty of being in possession of such a document on polling day".
This amendment was included in case amendment No. 124 was not accepted. It is a very sensible amendment. I cannot see any difficulty about this being accepted by the Minister and I hope he is prepared to do so. It asks that people be asked to provide identification which is readily and easily available to every citizen in the country. Broadly speaking, that is the situation at present but I would like to see a provision inserted which would not allow Ministers in the future to behave in a foolish manner and specify documents which would not be acceptable or readily available to everybody.
Section 111 (2) (b) provides that the Minister may specify in regulations documents which are acceptable as evidence of identity at a polling station.
The House can rest assured that in drafting regulations under this subsection any Minister would, as a matter of commonsense and pragmatism, specify a wide list of documents and would be reasonably certain that one at least of the documents would be available to every elector. The intention is that the Minister will specify the same list of documents as is in force at present.
I asked the Minister when we were dealing with the last amendment if he would tell us what the documents are as of now. He told us that there was no intention of changing them and that they were readily available. I wish to be assured that we would not reach a stage where the only document which would be accepted would be one proving membership of a political party. Is that what the Minister has in mind?
The documents are already listed on the back of the polling card. A wide range of documents can be produced such as a passport; driving licence; an employee or student identity card; a book issued in this State for payment of social welfare allowances, benefits or pensions; a medical card issued in this State; a free travel card issued in this State by the Department of Social Welfare; travel documents containing the name and photograph of the holder; a signing on card issued in this State by the Department of Social Welfare; bank or savings bank book; cheque book; cheque card; credit union membership; birth certificate or marriage certificate. It is envisaged that a similar list would be specified in fresh regulations to be made under section 111 on enactment of the Bill.
An Leas-Chathaoirleach
That is certainly a wide range of documents. Is amendment No. 125 being pressed?
Amendment, by leave, withdrawn.
I move amendment No. 126:
In page 66, subsection (2) (c) (i), line 37, to delete "AB" and substitute "..........".
This is a typographical correction to ensure there is a standard format. In subsection 2 (c) (i) AB is used for the first part of the question: "Are you the same person as the person whose name appears as AB." whereas for the register of Dáil electors we use the words, "for constituency of ..." and we do not put in any letter. If we use AB in relation to the register we should use XY or some such designation in relation to the constituency. We should stick to one form or the other.
I support Senator Costello. It is a straightforward amendment which seeks to create an element of uniformity.
Where is Senator Conroy now when we need him? I am sure if he were here he would classify it as one of those nitpicking amendments he mentioned earlier in the debate. It is a simple and straightforward amendment and I hope the Minister will accept it.
Section 111 (2) (c) sets out the question which may be put to the person who applies for a ballot paper in order to ascertain whether he is the person named on the register of electors. The question is: "Are you the same person as the person whose name appears on AB [and I would like to point out that AB means first and second names] on the register of the Dáil electors now in force for the constituency of...".
Amendment No. 126 proposes to substitute for "AB" a series of dots to denote the point at which the name of the elector is to be called out. What we are dealing with here is purely a question of drafting style which can vary from one draftsman to the next. Where the name of a person is to be inserted some draftsmen will use a series of dots, a blank space or perhaps square brackets. Others will use the initials AB or NM. Thee is no settled drafting convention or drafting practice. The matter is one entirely of drafting style.
In my view, the Oireachtas should concern itself with the policies and principles to be included in legislation and should ensure that the meaning of each provision is clear and unambiguous. Once the intention of the Oireachtas is expressed with lucidity and precision I do not think the Oireachtas should waste time in changing the draftsman's style. There is no problem whatever about the meaning of the phrase we are concerned with here and there is no need to waste parliamentary time tinkering with it. I suggest the amendment be withdrawn.
The Minister is quite right. We should not waste time on something like this and should not interfere with the draftsman's style unnecessarily. The only problem is that the draftsman has adopted two styles, one an alphabetical style and the other one a dot, dash, style. If the draftsman had adopted a single style then it would be quite clear, lucid and standard and would not give rise to any confusion. There is certain confusion and contradiction in the manner in which this is presented.
Amendment, by leave, withdrawn. Amendment No. 127 not moved.
I move amendment No. 128:
In page 66, between lines 43 and 44, to insert a new subparagraph as follows:
"(iv) Are you an Irish citizen, a British citizen or a citizen of... ... (countries, if any, to which section 8 (2) applies)".
This amendment seeks to introduce an additional question which can be asked of an elector prior to casting their vote. I hope the Minister accepts this amendment. It is a relevant question for a very small number of people. If somebody's name is not designated by the appropriate letter on the register it is valid to ask them whether they are a British citizen, an Irish citizen or a citizen of some other country. I know one British citizen — prior to the days when British citizens were given votes in Dáil elections — whose name continually appeared on the register of electors. I am sure that the same gentleman, being a very proper person, would not have cast his vote but it is quite possible that a person in similar circumstances could have attempted to do so. It would be a legitimate question to be asked under those circumstances.
Section 111 (2) (c) sets out the questions which may be put to the elector by the presiding officer in order to establish his right to vote. The questions which may be put to the elector under this subsection are designed to establish whether the person applying for a ballot paper is the person named on the register of electors, whether he or she has already voted and whether he or she has reached voting age.
Amendment No. 128 proposes to empower the presiding officer to ask an additional question designed to establish whether the person satisfies the necessary citizenship requirement in relation to voting. The question of an elector's citizenship is, or should be, dealt with at the registration stage. The necessary machinery is in place and is described in detail in the Second Schedule. The registration authorities are required to make adequate inquiries. They and the county register may require an elector to furnish information, to produce certificates and other documentary evidence, to make statutory declarations and at the revision court to give evidence on oath.
Finally, there is the right of appeal to the Circuit Court and on a point of law to the Supreme Court. As we have seen in discussing an earlier amendment, the concept of nationality and citizenship is a very complicated one. Obviously a presiding officer in a polling station would not be in a position to deal with such questions in a meaningful way. There would be cases where the elector would be unsure about his citizenship. To include the question proposed in the amendment would not serve any practical purpose.
I might add that under section 149 a person who is not entitled to be registered as a Dáil elector commits an offence if he votes at a Dáil election. I suggest that the amendment be withdrawn.
Amendment, by leave, withdrawn.
Amendments Nos. 129 to 131, inclusive, not moved.
Section 111 agreed to.
NEW SECTION.
I move amendment No. 132:
In page 67, before section 112, to insert a new section as follows:
"112.—(1) Expenditure by candidates and parties in connection with an election shall not exceed an amount to be determined by regulations made by the Minister with the consent of both Houses of the Oireachtas.
The regulations may also provide for audit of accounts of expenditure.".
This is an important amendment. It deals with candidates' and parties' election expenditure. We specify that there should be a ceiling on the amount of money spent by candidates and by parties on an election campaign. There is no doubt but that money speaks in an election. That is a reality. It is unfair that some people should be in a position to, in effect, buy votes and buy their way into power. We know from the beef tribunal that enormous amounts of money are donated to people at election time. I do not want to cast aspersions on the people who do this — they will answer for themselves — and I do not want to get into that argument. There is no doubt but people outside the political process through investing — and that is the term for it — in certain candidates and political parties, can buy influence. There is no getting away from that.
Obviously money will be spent on elections and nobody pretends otherwise, but I suggest that some limit should be imposed. In other countries, limits are imposed and the fact that we do not provides temptation for politicians and for those with lots of money to buy themselves power and influence in the political process.
There is also a school of thought which says that the wise birds of Irish life simply would not dirty their hands with the political process and would not go through the tough ugly slog that is part of being elected. These wise creatures stay far way from the political process and instead they invest their money very carefully supporting specific candidates or certain political parties. They get influence and power that way without getting involved in the nitty-gritty, humdrum, everyday business of Irish politics that most politicians are involved in. I do not think it is desirable or good for politics that this process be allowed continue without restriction on the amount of money which can be spent. Sometimes these people are simply wasting their money. Some of the gimmicks and stunts at election time are useless. As I said, there should be a limit on the amount of money given to political parties and to candidates at electon time.
I agree with Senator Upton that this is a very important amendment. I am sure we will put this to a vote if the Minister is not prepared to accept the exact wording or at least the principle underlying it.
This is a consolidation Bill. Its function is to provide a basis for the future electoral process in this country. In the last century the franchise was limited to people with property and only certain people could vote. The country was ruled by monarchs, then by the aristocracy and then by a further elite. Now everybody over the age of 18 has a right to vote. However, there are still obstacles and not everybody is able to exercise their democratic right. To a certain extent, wealth has replaced property. Of course, the two are interrelated but as we have said, our function should be to ensure that the maximum number of people are able to operate within the democratic process on an equal basis.
If a candidate or a party can spend an unlimited amount of money on an election, obviously somebody who has not access to great wealth or funding will not be in a position to mount a strong campaign. In order to level the playing pitch and give everybody an equal right to present their views and virtues we should have a ceiling on the amount of money spent on campaigns.
The other point to which Senator Upton alluded is that it would eliminate the scope for abuse in the democratic process. We have seen in other countries how unscrupulous political people, business people and the Mafia have influenced politics. The last thing we would like to see is a similar situation develop here. I do not suggest that there was abuse in the past, but we want to eliminate the possibility of any abuse.
I understand that in Britain candidates and parties must produce receipts of expenditure on an election. They can only spend up to a certain amount. I cannot see why we should not ensure that our democracy is as accountable and that everybody, whether employed or unemployed, with business connections or not, whether they are members of a political party or are Independents or Non-Party using their own resources, should fight the election from the same base. The Minister should accept this amendment.
I consider the principle of this amendment to be very worthwhile as I believe excessive expenditure on elections and the influence of mega business in elections through the financing of individual candidates or political parties is dangerous and has serious implications for democracy. In theory, every citizen of the State can be elected to a House of the Oireachtas. While that is the theoretical position, in practice, the high costs which candidates must incur would debar most people from putting themselves forward.
We have been through a particularly sad chapter in Irish life recently in the beef tribunal which is ongoing. It brings into sharp focus the importance of looking at the whole question of financing candidates, parties or elections. My contention in relation to election financing— something which is being mooted fairly widely at present, but must be brought to a head and that is happening in Germany — is that the State should finance the political parties on a pro rata basis in terms of electoral support at the previous election. That would eliminate the private speculator buying political influence at election time. In my view that should be mandatory. I am delighted to see the Progressive Democrats are having further thought about this. I see Senator Dardis is in the House now and I gather his party are rethinking this issue in terms of——
We rethink all the time.
Both for yourselves and Fianna Fáil.
I am delighted they are seeing the light on this issue because it is important that an all party agreement emerges on this question.
I see practical difficulties in regard to implementing the ceilings from the administrative point of view in relation to how they would be establish in law and monitored. However, the principle is correct, it should and must be done and there is sufficient evidence at present to suggest that.
Mr. Farrell
Does the amendment suggest that trade unions should not support political parties because, as we know, they support them very strongly.
It is in the annual report.
Mr. Farrell
I do not know if the Mafia run the trade unions or the trade unions run the Mafia in other countries, but they are very closely associated.
Not in this country.
Mr. Farrell
Thankfully, not in this country. The Senator referred to the Mafia in other countries and I want to make it clear that there is a link between unions and the Mafia, not between the ordinary citizen of the street.
If we decide to make money available from the State for people running for elections there is a grave danger many people would put their name forward and run for election, knowing they had no hope of being elected, but would get a few thousand pounds and put it in their pocket.
That has nothing to do with the amendment.
Mr. Farrell
This is what will happen if you go for State funding, therefore, we would want to seriously consider such a suggestion.
I support this amendment. However, I would have some concern about the fact that the amount of money would be determined by regulations with the consent of both Houses of the Oireachtas. I do not see a great deal of justice in that because the Houses of the Oireachtas are made up of the Dáil and Seanad and the Dáil has a Government majority consisting of Fianna Fáil and the Progressive Democrats and the position is similar in this House. Therefore, this amendment proposes that the amount be determined by Fianna Fáil and the Progressive Democrats. I do not know the Progressive Democrats' view on this and I am glad we have a representative here who I presume will give us his words of wisdom on this topic.
I have remonstrated with the Progressive Democrats on occasions because they have not been successful or, in some instances have not even tried, to implement policies which appeared in their election manifestos at local and national level. Their reply was that they are only a small party and cannot be expected to work wonders in a couple of years. I accept that, nevertheless, what we are saying here is that the Progressive Democrats would not have the say and it would be the Fianna Fáil Party who would determine the amount.
We might go into Coalition with them.
Obviously, they would decide on a sum of money that would be in their best interest. I do not believe they would have a great deal of concern for many Members of the Opposition or a Member of any other party; that is the nature of politics. They certainly would have no consideration for those dreaded Independents who are now to be called non-party people. Presumably, they would not be considered in the matter at all and we might find that an amount was agreed which would put Independents at a disadvantage because they simply would not have that sort of money to spend in the first place.
This matter is obviously very relevant — as was stated by Senator O'Reilly — in view of the revelations being made at present in regard to the beef tribunal, something I am sure, a Leas-Chathaoirligh you do not want us to enter into in great detail.
An Leas-Chathaoirleach
The Senator can be assured of that.
It obviously spotlights the elite in this country who are controlling the levers of power and who, by the influence they have apparently gained by making substantial investments in political parties and, therefore, directly in the candidates, feel they are in a position to dictate to the Government of the day what will be in their own interest. That is something which I know we all deplore and, therefore, it is opportune that we should be discussing this amendment at present. I hope the Minister will give it genuine thought and that he will do so with an open mind. I hope he will not say that it is out of the question because it was not in the original Bill but that he wil give the whole matter open consideration.
The question of outsiders investing in candidates rather than putting themselves forward is a very serious one. It is well known that the quality of politics is greatly dependent on the quality of individual politicians. I am sure most Senators will agree that if we allow the present situation to continue we will not attract into politics the calibre of people we would like. Most Members, both here and in the other House, have referred from time to time to the fact that it is a pity we do not seem to be attracting the right type of candidates and asked what can be done about it. This is obviously one of the things that could be done, we should no longer allow outsiders to pull the levers by financing the parties. I would like to refer to one election in which I was not involved. I was in California at the time of an election some years ago and I was sitting at one of those thousand pound plate dinners, for which I had not paid.
Who was paying for it?
A free lunch.
An Leas-Chathaoirleach
Senator Hederman, without interruption, please.
I was a visiting VIP dignitary and nobody had to pay for me.
I was sitting beside the wife of the Democratic candidate for the Senate and she told me that $17 million was being spent on her husband's attempt to be elected and that he had absolutely no hope whatsoever. He was what people here would call a "no hoper". The man who was likely to take the seat was a Republican and it was known that $24 million was being provided to back him. We should bear these matters in mind when we are thinking about introducing legislation to put a ceiling on what people can spend. We are all aware that what happens in the United States, Great Britain or elsewhere very often comes in here sooner than we anticipate. If that is what we want here, it is regrettable.
I support the point that only the wealthy can afford to enter politics, that is unless you are Non-Party, an Independent; who can manage to be elected on a shoestring. Under section 47, candidates are being asked for a deposit of £500, and that is for openers. Then one has to compete with the campaigning, advertising and publicity of candidates of large parties which, as we all know, is enormously expensive. As has already been said, that rules out the unemployed or many young people who would not have that sort of money.
An Leas-Chathaoirleach
We have dealt with that issue. Will the Senator speak to the amendment?
I will deal with an issue which has not been dealt with. Whether we like it or not, more Independents are running for office — or as the Minister likes to call them "non-party" people. Those people are supported, on the whole, by voluntary workers and because of scarce financial resources have learned to make £1 go as far as others would make £10 go. This might be disadvantageous to parties because if a ceiling of, say, £5,000 is put on each candidate, the Independent or Non-Party candidates would be able to make that go ten times further than the person in the party. That difficulty would have to be overcome. It might mean that parties would indulge in wiser spending on election campaigns and not lash out money in all directions on things which might not help to get them elected.
We should not go down the path of the State funding political parties. I think it was Senator O'Reilly who mentioned that the State should finance political parties in proportion to the results of the previous election. Where would that leave our Independent or Non-Party member, who would not have been elected at the previous election? They would presumably get no funding. Senator O'Reilly might explain what exactly he means when he suggests that the State would finance the political parties in proportion to the results of the previous election.
An Leas-Chathaoirleach
Senator O'Reilly is not the Minister; it will be the Minister who will reply.
Not yet, but he is looking forward to it.
Not yet, but he might be. This provision would ask members of the public, through their taxes, to finance political parties which they may have no wish to support and would preclude a situation where their taxes would be able to support an Independent or Non-Party candidate. That would be grossly unfair and unjust. The idea of forcing people, which would be the outcome of the State financing political parties——
An Leas-Chathaoirleach
I would remind the Senator that we are not talking about the State financing political parties; we are talking about the limit on expenditure at elections. Will the Senator allow the Minister to reply?
That is a fair point, but it was Senator O'Reilly who brought up this question; I did not hear you ask him to stick to the point so I thought you would allow me a little latitude.
An Leas-Chathaoirleach
He brought it up in a different context.
I thought he raised the question of the State financing political parties in the same context.
An Leas-Chathaoirleach
I would not like the Senator to think I am not fair to every Senator.
The Chair is very fair. This amendment is interesting and one to which I hope the Minister will give serious consideration. If he is considering going down the route proposed by Senator O'Reilly, I ask him not to go too far down that route and, perhaps, to consider the problems which might arise.
Amendment No. 132 proposes to insert in Part XVIII a new section providing for a limit on the expenditure by candidates and parties in connection with an election. The limit will be determined by regulations to be made by the Minister with the consent of both Houses of the Oireachtas. The regulations will provide for audit of accounts of expenditure.
I must begin by pointing out that up to 1963 there was provision for a statutory limit on the amount of expenditure which a candidate could incur in relation to an election. This statutory regulation was abolished in that year on the recommendation of an all party joint committee on the electoral law. In their report the joint committee referred to the limits as both obsolete and useless.
I must also put on record that, so far as my information goes, only two of the member-states of the EC operate any control system in relation to expenditure by candidates — Italy and the United Kingdom. No controls exist, for example, in Belgium, Denmark, France, Germany, Luxembourg or the Netherlands, so far from being out of step with European countries generally on this matter, we are very much in the mainstream.
The amendment makes no serious attempt to draw up a system of control even in a very broad outline. It is, in effect, simply a statement of principle and no more. I realise that it would be difficult for Senators and their advisers to devise a fully developed scheme on this very difficult and complex subject. Nonetheless, it would be reasonable to expect that the amendment would give some broad indication of the type of regime envisaged and suggested and, at least in general terms, how the complex constitutional legal and administrative questions arising might be addressed. It is not good enough to say that the Minister should work it out.
If we are to consider this matter seriously, it is obvious that it could only be advanced on the basis of broad general agreement. At this stage it is very difficult to see any evidence of a basis for such agreement. It must also have regard to the fact that expenditure at elections is just one aspect of a much wider question. It would have to be seen in the context of the financing of candidates and parties generally. Any consideration of it would have to address matters such as the public funding of parties, the question of accounting, the disclosure of sources of income and would have to take account of the parliamentary as well as the electoral role of parties.
I do not believe that the serious and intricate questions arising can be adequately addressed in a brief amendment to the electoral Bill and, therefore, I suggest that the amendment be withdrawn.
An Leas-Chathaoirleach
Is the amendment being pressed?
I would like to speak to the amendment.
An Leas-Chathaoirleach
I ask Senators to be brief. We have discussed this amendment for over 30 minutes and there are, approximately, 40 more amendments to be dealt with in 240 minutes. I would like, if we could, to deal with them all. I call Senator Hederman, but I would ask for brevity.
This is an important amendment and I would be happy to forego my time on some of the other amendments because they are of a very minor nature. The Minister said earlier that the House should concern itself with broad policy and principle and should not get bogged down in minutiae. He said we should concentrate on broad principles and leave the details to others. It is strange that he should say that in the context of an earlier amendment, and yet he now said that he deplores the fact that this amendment contains a statement of principle and nothing more.
It is difficult to please the Minister. He now seems to want all the details, while earlier he did not. The Minister could not really expect the Senators to have worked out all the details. He said that up to 1963 there had been a statutory limit on expenses but that an all-party joint committee abolished it. As I am a newcomer here, I would appreciate the Minister's assistance. Would that all-party joint committee have been like any other joint committee? It was probably comprised of members of the major political parties. It would be interesting to see if the Independents or, as the Minister likes to call them, the Non-Party people were represented on that committee. I say their voice was not heard.
I am not particularly impressed by the fact that only Italy and the UK have control in regard to expenditure, whereas Belgium, Denmark, France, Germany, Luxembourg and The Netherlands do not, although one would have to look at their system of election which is very different from ours. There are probably lists and various matters like that.
Why did the Minister say in this instance that he felt this provision would need broad general agreement if it was to be introduced? I am not aware that only legislation and matters which have broad general agreement are introduced. I sit here week after week and watch the Government railroad through measures that have not got general agreement in this House, but they use the unnatural majority which they achieve by having the Taoiseach nominate 11 Members to steamroll and railroad undesirable and undemocratic measures through this House. The same happens in the other House. Yet, the Minister comes along here and says he could not accept this amendment because it would need to have broad general agreement if it was to be accepted. I asked the Minister earlier if I am now to understand that for the next six months we will only deal with matters which include policies and principles and that we will not be bogged down with minutiae but the Minister did not reply. Am I to understand that only those items which have broad general agreement will be pushed through here or will we continue to see the steamrolling tactics which this Government use continuously to get undesirable and undemocratic legislation through the House?
To take up Senator Farrell's point about unions, yes the unions contribute money to the Labour Party. That is a matter of record, it is stated in their annual reports and in the annual reports of the Labour Party. People can draw their own conclusions as the reports are available to the unions to peruse and examine.
In relation to the Minister's criticism of the amendment and the fact that he suggested it does not cover the various aspects of this matter adequately, I believe the amendment is very specific. It states that expenditure by candidates and parties in connection with an election shall not exceed an amount to be determined by regulations made by the Minister with the consent of both Houses of the Oireachtas. That could not be more straightforward. In other words the Houses of the Oireachtas should set a limit on the amount of money which can be spent and the second part of the amendment provides for an audit of accounts of expenditure. That is also straightforward. I cannot see any difficulty in the introduction and implementation of such an amendment. I reiterate what I said about the desirability of putting some ceiling on the amounts of money which are spent on elections by some political parties.
I do not think anybody could be other than flabbergasted by the sums of money which have been spoken about in regard to the beef tribunal. It is huge money by any standards; certainly the sum of £75,000 is an enormous amount of money by the standards of the Labour Party. The average cost of an election campaign by a typical Labour Party candidate would be of the order of £7,000 to £10,000. I am speculating of course, but that is the kind of money you are talking about. Some of the major players in relation to the beef industry have not yet spoken in relation to what they are contributing.
An Leas-Chathaoirleach
We are not dealing with the beef tribunal.
More's the pity.
I am talking in terms of the amounts of money which are available and what we are seeing here is I suspect the tip of the iceberg. It deals with just one part of the beef industry. It does not deal with the remainder of the beef industry or with the other segments of the economy and the key players. What type of money is spent on elections? Is it desirable to spend enormous sums of money? I strongly hold that it is not.
An Leas-Chathaoirleach
I ask Senator Costello to be very brief. I am only trying to assist the Senators to deal with every amendment, if possible, on the Order Paper.
The first thing that the Minister said was very strange. He felt the amendment was far too vague and general and that it was leaving it all to the Minister to work out. He adopted the opposite position in relation to other matters where he felt it was appropriate for the Minister to draw up the regulations and so on. However, we are being very specific in relation to this matter. It should be dealt with the Oireachtas and the Minister through regulation.
The Minister has a model in the British experience, where there is very strict accountability in terms of the use of the funding in relation to an election. Receipts have to be kept and presented. It is accountable and audited. There is no problem about giving the Minister a model. I am sure the Italian model is equally strict and tight, but I would not know about that.
In relation to 1963, almost 30 years ago, it is amazing that there should be a statutory provision made then, while in the same year an all-party joint Oireachtas committee abolished those provisions on the grounds that the limits proposed were obsolete and useless. I do not think any such joint Oireachtas committee could possibly come up with a similar pronouncement at this time. Many things have happened in the past 29 to 30 years and some of them have been referred to at present in relation to how funding is allocated to the political parties. I do not want to go into details of the beef tribunal, but they are matters of concern.
We must acknowledge the point I made that this legislation will underpin the electoral process into the 21st century. We should make provision for the serious developments in relation to the funding of candidates and political parties and ensure that there are no loopholes in this legislation which will consolidate the position in future. If we do not do that we will be guilty of dereliction of duty. The Minister should take this amendment on board and allow the situation to be dealt with by regulation by the Oireachtas later.
What we are talking about here is not taxpayers' funding of a political party or of an Independent. We are talking about a maximum ceiling to ensure that there is not an over-extravagant use of funds that interferes with democracy, either through the wealthy being able to enhance their position or business interests using a political candidate to enhance their position in the marketplace.
The question of limits on expenditure at elections is a very broad one and one that would probably have to be considered in conjunction with the funding of political parties generally. The present Bill, which deals essentially with the technical aspect of an election, would not seem to be the appropriate mechanism for dealing with these questions and there are no indications at this stage that there is any broad support for a provision along these lines.
If it were desirable to control election expenses in the future the matter would have to be approached in a manner which would take account of the reality that election campaigns are now national rather than constituency affairs. The simplistic approach of seeking to impose a limit on the expenditure of individual candidates for the duration of the election campaign would simply not work; the matter would have to be approached on a broad all-party basis. There is at this stage no evidence of a consensus on this point.
Amendment put.
The Committee divided: Tá, 11; Níl, 22.
Tá
- Cosgrave, Liam.
- Costello, Joe.
- Harte, John.
- Hederman, Carmencita.
- Jackman, Mary.
- Naughten, Liam.
- Neville, Daniel.
- O'Reilly, Joe.
- O'Toole, Joe.
- Ross, Shane P.N.
- Upton, Pat.
Níl
- Bennett, Olga.
- Bohan, Eddie.
- Byrne, Seán.
- Cassidy, Donie.
- Cullen, Martin.
- Dardis, John.
- Farrell, Willie.
- Foley, Denis.
- Haughey, Seán F.
- Honan, Tras.
- Hussey, Thomas.
- Keogh, Helen.
- Kiely, Rory.
- Lanigan, Michael.
- Lydon, Don.
- McGowan, Paddy.
- Mooney, Paschal.
- Mullooly, Brian.
- Ó Cuív, Éamon.
- O'Keeffe, Batt.
- Ryan, Eoin David.
- Wright, G.V.
Tellers: Tá, Senators Upton and Costello; Níl, Senators E. Ryan and Foley.
Amendment declared lost.
Section 112 agreed to.
SECTION 113.
I move amendment No. 133:
In page 67, subsection (2), line 44, after "duty", to insert ",the candidates".
All this amendment seeks to do is to provide for the right of the candidate to be present at the count. I think that is desirable and I hope the Minister might be able to accept the amendment. When candidates have slogged it out in the heat of battle in elections, I believe the system at least owes them the right of being at the count if they wish to be there.
Section 113 relates to attendance at the count of the votes at a Dáil election. Subsection (2) provides that the returning officer and his staff, members of the Garda on duty and agents appointed to attend on behalf of candidates may be present at the counting of votes. Any other person may attend only with the permission of the returning officer.
Amendment No. 133 proposes to insert a provision stipulating that the candidates may attend at the count. This amendment is not necessary. I would refer Senators to the provision of section 60(10), page 45. The subsection provides that a candidate may lawfully do or assist in the doing of anything which may lawfully be done on his behalf by an agent appointed for that purpose and may be present, either in addition to or in substitution for any such agent, at any place at which the agent may be present. This clearly covers all the processes at which agents are entitled to be present, including the issue of postal votes, the opening of postal voters' ballot boxes, the polling station and the counting of votes. I think the amendment is not necessary and I suyggest it should be withdrawn.
I know that what the Minister said is, broadly speaking, true and I would not disagree with it; but there are parties with a certain frame of mind that candidates did what they were told by higher bodies. I could envisage some of those parties in a certain set of circumstances allowing agents to be at the count but not providing for candidates to be there. It is a matter of respect that anybody who puts their name on the ballot paper should have the right to be at the count.
Perhaps the Chair can advise me whether within the context of this amendment, the Minister, if not now then perhaps between now and Report Stage, could give me a definition of the words "at the count". I am raising this point because of an experience I had last summer in my county as a result of the manner in which the count was structured. All of us who have gone through elections will know that there is a basic physical structure within which the returning officer and his officials operate the count. Outside the barrier, you have access for tallying; and where postal votes are involved, the returning officer will invite the agent or the candidate, in this instance, to scrutinise.
There was one specific instance where the returning officer in the course of the count carried out transfers on doubtful papers which already had been passed, but at a subsequent part of the count he made decisions without the physical presence of the candidates or their agents. In that context could the Minister tell me what is the definition of "at the count"? Does it give full and unrestricted access to all aspects of the count, or does the returning officer have a discretion as to when and where in the count building he or she allows access to the candidates or their agents?
Section 118 says that "count" means all the operations involved in the counting of the first preferences recorded for candidates; all the operations involved in the transfer of the surplus; and all the operations involved in the transfer of votes of an excluded candidate and all the operations involved in the transfer of the votes of two or more candidates. However I do not think that helps Senator Mooney. I will wait until we come on to section 118 because I want to raise a matter on that section.
Subsection (3) requires the returning officer to give the agents all reasonable facilities for overseeing proceedings at the count, including facilities for satisfying themselves that the papers are correctly sorted out.
I am grateful to the Minister and to Senator Hederman.
Amendment, by leave, withdrawn.
Section 113 agreed to.
SECTION 114.
I move amendment No. 134:
In page 68, subsection (1), line 5, to delete "At" and substitute "As soon as may be following close of poll, and not later than".
This amendment seeks to allow the count to take place prior to 9 o'clock in the morning. I am not sure that I would particularly be in favour of that — the count takes place soon enough after the heat of an election — but I can visualise a certain set of circumstances where it might be desirable that the count would start sooner than 9 o'clock, or for that matter that the count would start immediately on the close of voting. It is really in an attempt to open up that possibility that we have introduced this amendment.
Section 114 provides that proceedings in relation to the counting of votes at a Dáil election shall commence at 9 a.m. on the day after polling day. Amendment No. 134 proposes to enable the proceedings to commence as soon as possible after the close of poll but not later than 9 a.m. on the day after polling day. The effect of this amendment would be that the returning officer would have discretion to commence the count as soon as ballot boxes arrive at the counting centre. The existing provisions which require the count to commence at 9 a.m. on the morning after polling day, arises from the nature of the count system under our proportional representation system.
Typically, at a count at a Dáil election, the checking and verification of ballot papers accounts take several hours. It is generally well into the afternoon before the sorting and counting of ballot papers gets under way. In most cases the count is not completed until evening; in many cases it may continue into the early hours of the following morning or may even necessitate on adjournment until the next day.
While commencement of the count a few hours after close of polling may well suit simplified counting methods, such as that used in Britain, involving one count only without the complication of our PR system, I think most of us who have to attend counts would agree that it is preferable to start proceedings with a fresh team of counters. In considering this we must also take into account the fact that the returning officer and his key personnel will have already been on duty preparing for polling day and supervising the conduct of the poll on polling day. It is desirable that they, as well as the candidates and their agents, should have a break before counting commences.
I do not think it desirable to include a discretionary power to commence the count on the night of polling. It could put a lot of pressure on returning officers to start earlier than 9 a.m. I think the existing provision in relation to the commencement of the count strikes the correct balance and I would ask the Senators to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment No. 135 not moved.
Section 114 agreed to.
SECTION 115.
I move amendment No. 136:
In page 68, lines 24 and 25, to delete "and the candidates otherwise agree" and substitute "otherwise decides".
What we are trying to do here is change the word "agree" to "decides". What we are primarily concerned about is a candidate at an election who got a very small number of votes and decides for whatever reason — perhaps simply to be awkward or difficult — to object to the continuation of the count after 11 p.m. when it could be anticipated that the count would reach a conclusion fairly soon after that. Rather than having to start again in the morning, we are anxious that the returning officer should be given discretion in this matter — in other words, that he should be allowed to decide rather than that he should have to seek the agreement of all the candidates.
I would be concerned if the candidate happened to be from a major party, was a serious contender in the likely outcome of the election and stood a realistic chance of being elected, but I would also be a little concerned that you could have a crank candidate who, in pursuit of whatever type of objectives, might simply decide to be awkward and to object to the count going on after 11 p.m. when it would be obvious to everybody that the whole process could be finished in perhaps half an hour or an hour if everybody agreed.
I would like briefly to make the point that this amendment is eminently sensible, because a disruptive individual at a count could cause problems. I think it should be at the discretion of the returning officer and I commend the amendment.
This section contains the phrase "except during time for refreshment". Is that covered elsewhere in the Bill? I have a vision of the returning officer deciding at five minutes past nine that they will all retire to the pub and they will not come back until 10 p.m. to continue the count. It seems to give great scope as to the time for refreshment. Is that defined anywhere?
Section 115 provides that the returning officer must as far as practicable proceed continuously with the counting of votes, allowing only time for refreshment and, except by agreement with the candidates, excluding the period 11 p.m. to 9 a.m. I would expect, Senators that commonsense would be used in relation to refreshments.
Amendment No. 136 proposes that the returning officer may continue counting after 11 p.m. at his own discretion without any obligation to consult with the candidates. The count at a Dáil election is required to commence at 9 a.m. on the day following polling day. In the case of some constituencies, the count may be completed later that evening. In many cases, especially in large constituencies or in constituencies where margins between candidates are very slim, the count may continue into the following day. It may become apparent as the count proceeds that even if the count was to continue after 11 p.m. a final result could not be expected for several hours, possibly until the following day. In such a situation the position of counting staff, candidates and agents, who would have been on duty for 14 hours, would have to be considered. It would be obvious and desirable in such a situation to secure the consensus of all parties, returning officers, candidates and agents, if a decision is to be made to proceed with the count after 11 p.m.
The section, as drafted, is designed to protect the interests of the candidates. At the elections, the future of candidates is being decided. If a candidate feels that, for whatever reason, continuing the count after 11 p.m. would be detrimental to his interests, regard must be had to that. I feel it would be unwise to give the returning officer unfettered power in this regard.
I would like to assure the House that, in practice, this provision does not cause any problems. Common sense prevails and if it is apparent that continuing the count for a few hours beyond 11 p.m. will enable the count to be concluded, all parties are happy to agree. Fortunately, in such situations, the interests of candidates of all the parties seem to coincide. I would, however, feel that the provision, as drafted, is a desirable safeguard for the rights of the candidates and should be retained in the Bill. I suggest that the amendment be withdrawn.
I would like to pay tribute to the returning officers involved in any election in which I have participated. What the Minister says is true. They usually try to reach a consensus and use their common sense. They always seem to take wise decisions. Perhaps it would satisfy Senator Dardis's concern if we were to insert the word "light" before "refreshments".
Having listened to the Minister, I do not think this amendment is needed. I was worried in case I would find myself supporting this amendment or asking that it should be looked at again on Report Stage.
The Senator could be joining this side.
I have no intention of joining the Senator.
I was referring to Senator Hanafin, not to myself. I know where we stand.
Senator Honan, without interruption, please.
Will the Chair deal with the Senator. As one who has sweated it out at a count, I know there is an option of continuing the count to get a result late at night rather than waiting until the following morning. This also applies to TDs when there are only a few votes between candidates in the final count for the last seat. I am more clear in my mind now after the Minister's contribution than I was as we talked through this amendment. Like the Minister, I do not think there is any need for it. Common sense usually prevails.
I hope all the people who come after us — and they will have to wait a while — use as much common sense at elections as we do.
As has been said by previous speakers, this operates in accordance with common sense. On a technical point, are we talking about remaining candidates or all candidates? In other words, if, at 11 p.m. five candidates have been eliminated and two have been elected, do they have to be consulted or are we talking about the candidates who still remain in the race?
I would like to ask the Minister a second technical question. In the event of candidates not being present for certain consultations, can the returning officer make his decision in their absence?
I am listening to the tone of this debate and, while the Opposition have a right to propose them, many of the amendments are frivolous. Senator Hederman mentioned the word "light" before "refreshments". It is obvious that she has not attended many counts because I have never seen T-bone steaks available at counts. Obviously there is a great lack of knowledge on the ground. Anybody who has attended counts would realise that these are very frivolous suggestions.
A well established returning officer is generally a man of good sense who has been a county manager, or county registrar, a man of stature with vast administrative experience. Some of the minor amendments before the House are an insult to the intelligence of any person who is qualified to be a presiding officer.
There are one or two points to which I want to respond to in relation to what Senator McGowan said. It is not the first time he has said such things. I object strongly to the suggestion that these amendments are frivolous. They have been well thought out and carefully considered. We have put a lot of effort into them and I object to that type of remark.
This amendment does not allude to returning officers behaving improperly. It is designed to allow the proper and easy functioning of counts where a crank candidate simply wants to be difficult, objects and stops the count proceeding to a conclusion, which it is apparent to everybody will arise within, let us say, half an hour. That is what the amendment is designed to do. It has nothing to do with how returning officers behave or conduct their business.
The questions asked by Senator Ó Cuív are relevant and I would like to hear the Minister's response, particularly in relation to candidates who are eliminated or, for that matter, who have left the count.
I do not agree with the amendment but I defend the right of the people across the floor to put down an amendment on any matter they wish. That is how the system works.
In relation to the question I raised regarding the time for refreshment, it is a legitimate concern. I accept fully what Senator McGowan says, that returning officers are responsible people who do a responsible job. They do it very well, and always have done but there have been other sections in this Bill which have been highly restrictive when it came to defining who can vote, when they can vote and the manner in which they can vote. This is unrestrictive and grants extreme latitude. It is stretching things far, and it is a bit frivolous to say that the returning officer could decide unilaterally at 9.10 a.m. that they would have light refreshments or serious refreshments or other refreshments and they could adjourn for several hours to enjoy the refreshments. We have all been at counts where we have seen people during the day and evening being overcome by the nature of the refreshments they have partaken during the day.
Amendment, by leave, withdrawn.
Section 115 agreed to.
Section 116 agreed to.
SECTION 117.
Amendment No. 152 is consequential on amendment No. 137 and both may be discussed together.
I move amendment No. 137:
In page 68, line 31, after "votes", to add "except with the permission of the returning officer".
This amendment seeks to give the returning officer discretion in relation to empowering him to allow election agents at the count to handle ballot papers. The reason we have suggested this amendment is that it can considerably speed up the way the count is conducted. It can allay fears or concerns that the agents for candidates would have, particularly in regard to whether the franking machine stamp has been used on ballot papers. If it has not been used that would invalidate the ballot papers.
I am not suggeseting that every candidate or everybody at the count should be able to finger every ballot paper and hold it up to the light and look at it. For that reason we have built into the amendment that they could handle the ballot papers with the permission of the returning officer. It would be desirable that the returning officer would have that discretion. If he does not have that discretion he may not be able to allay the fears of the agents of certain candidates.
In a close contested election, the alternative is simply to demand a recount, which will create great difficulties in relation to extra time and resources which have to be committed to the whole process. There is an adequate safeguard built into the amendment which requires that the returning officer would have to give permission to the election agent to handle the ballot paper. That would be a desirable change.
Section 117 prohibits the handling of ballot papers at the counting of the votes by candidates or their agents. Under section 153, contravention of this provision is an offence. Amendment No. 137 proposes to modify section 117 to provide that candidates and agents shall not handle ballot papers except with the permission of the returning officer. Amendment No. 152 is consequential.
In practice, the only person who should handle ballot papers at the counting of the votes are the returning officer and his staff. I can envisage no situation where it would be necessary for a candidate or an agent to handle the ballot papers. In adjudicating on a doubtful ballot paper it is normal practice for a returning officer to consult with candidates or their agents and inform them of his proposed ruling on such papers. Candidates and agents are allowed to inspect the papers concerned but there is no reason whatever they should handle the papers.
I consider this an important part of the mechanism to protect the integrity of the electoral system and I feel the amendments proposed would not help in this regard. I would ask the Senators to withdraw the amendment.
I am disappointed at the Minister's response. This amendment has been tabled at the specific suggestion of my own director of elections who has been director of elections in Dublin South-Central for our party for the best part of 20 years. It is as a result of his experience and his concerns that the amendment was tabled. I am disappointed that the Minister cannot accept it.
I am disappointed too, but more particularly because the Minister did not appear to address the point about the franking machine. It is an important point because a ballot paper is not valid unless it has been stamped. That is not done by the canvassers or the voter so they have no control over it. It is important to be able to establish that the paper has been stamped and it cannot always be done visually. I have experinece where it was difficult to tell. The returning officer said the ballot paper had no been stamped and one had to take his word for it. It is only fair to allow candidates or their agents to finger the paper to see of the stamp is on it.
When a ballot is close enough to require a recount, the question of papers being stamped correctly is very important. People observing on behalf of candidates cannot actually see the stamp unless they can get close to the ballot paper — closer than they can get at the moment. In a limited way, the amendment is necessary although I do not think there will be widespread need for it. The amendment proposes to add the words: "with the permission of the returning officer"; it does not say that they will handle every ballot paper.
In a tight vote, it is very important that the agents see that the ballot papers are stamped because if there is a recount and there are no stamps on the ballot papers, they will not be valid.
I have listened to the points made by the proposers of this amendment and I have heard the reply of the Minister. I have been through as many counts as anybody here and I fail to see why candidates or their agents should be allowed to handle ballot papers. Where will be draw the line?
I have been through two recounts and the returning officer, on each occasion, discussed the spoiled ballot papers with the candidates and the agents. Over my time, I have only heard arguments about four or five ballot papers. I always felt they were fairly adjudicated on and this is what really matters. I would hope that the same procedures would apply elsewhere. Perhaps Senators Upton and Harte had a different experience.
It is of vital importance that all candidates or their agents should be happy with the decision of the returning officer on whether papers are properly stamped and the mark put down by the elector clearly indicated the wishes of the elector. My experience over the years, has been that if the returning officer was satisfied that a mark on the ballot paper clearly reflected a preference for a candidate, wherever that mark was, the vote was given in that direction. It appears from what Senators have said that that is not always the case. We should clearly point out that it would be the express wish of the Members of the Oireachtas that every opportunity should be given to candidates to satisfy themselves that the papers were properly marked. I do not necessarily agree that that requires handling the ballot paper.
Will the Minister outline the powers of the returning officer in relation to the showing of ballot papers? Most of the amendments and most of these sections deal with the counting of votes. Most of these sections relate to doubtful or spoiled votes. They relate to the first count with the showing of papers. I am anxious to know at what point the returning officer can, legally, refuse a candidate or his or her agent the right to scrutinise a ballot paper. This can arise, and it did arise, in an election I was involved in last year. Two candidates emerged with the same number of votes well into the count at about the fourth or fifth count. There was then a recount and, subsequently, more papers were found for one candidate than the other, but I or my agent or any of the other candidates, including the two candidates involved, was not given the opportunity to see the new papers. It seemed to me at the time, and subsequently on reflection, that if the scrutiny had been carried out as well as we are being led to believe — and in most cases it is — these papers would not have shown a different preference. This was not a first count, they were not first preference votes; these were second and third preferences. Surely they should not have shown up at that late stage in the count. I would like to know what rights candidates or their agents have to scrutinise papers when the count is in progress?
My second and minor question relates to the reference to an offence in section 152. I cannot see any sanctions in the Schedule and I have not noticed them in the Bill. What sanctions are imposed on a candidate or his agent if they handle a ballot paper, and what legal steps are taken to impose a sanction on the candidate or his agent if they are seen to do so? I would like the Minister to spell this out for me.
If this amendment were to be carried it would place returning officers in an impossible position because we would be providing for a returning officer to hand the ballot paper to a candidate. Every Member in this House who has been elected knows that the count and the recount involve long hours and cause considerable stress. To authorise a returning officer to hand the ballot paper to a person and ask what they think will lead to disagreement. There must be an authority. At the end of the day, one person has to make the decision. That is absolutely clear.
I am totally in support of the law and regulation under which no candidate ever handles a ballot paper at any stage. If one were to legislate otherwise one would be promoting problems within the electoral system. It is right that where a candidate at a count puts his hand on a ballot paper, that is an offence. I hope it will remain an offence and a serious offence because the count has to be right and seen to be right. That is the cutting edge of democracy and one or two votes have often decided who will have a seat in this House or the other House. Even a fraction of a vote is very important in this House.
I would question the wisdom of those who proposed the amendment. I do not want to be sarcastic or nasty but I would say it is based on a lack of knowledge and experience of counts over a long time.
(Interruptions.)
I strongly urge the Minister to continue with the well established procedure. The provisions of this Bill are safe and can be seen to be right and fair to all concerned.
With the permission of the Cathaoirleach, I would like to welcome the senior citizens from Sallins to this House this afternoon.
In respect of this amendment I do not see that there is any need to improve section 117 which says, "Candidates or their agents shall not handle ballot papers during the counting of votes." and I share Senator McGowan's reservations on this matter.
We all have had experience of an election where there was a scrum of people around the returning officer when the adjudication was being made on ballot papers that might be invalid. Even where people did not handle ballot papers the whole situation was unsatisfactory as it would have been quite conceivable to envisage that improprietary could have taken place. The more rigid the regulations in respect of this matter the better. I see no need to amend this section.
Senator Naughten covered many of the points that were raised by some of the Senators but in relation to Senator Mooney, section 113 (3) covers the points the Senator raised. It says:
The returning officer shall give the agents of the candidates all such reasonable facilities for overseeing the proceedings at the counting of the votes (including, in particular, facilities for satisfying themselves that the ballot papers had been correctly sorted) and all such information with respect thereto as he can give them consistent with the orderly conduct of the proceedings and the performance of his functions.
In relation to the Senator's other point, section 153 sets out the offence and section 157 indicates the penalty involved, which is a maximum fine of £500.
Amendment, by leave withdrawn.
Section 117 agreed to.
SECTION 118.
I move amendment No. 138:
In page 69, line 27, in the definition of non-transferable paper, to delete "consecutively".
I am not fully sure I understand what is involved here but it seems to me that if somebody votes 1, 2, 3 and, let us say, 5, that invaliditates the transfer of the vote once it has gone as far as No. 3. That is undesirable. It can happen particularly in elections where there are many candidates, where people are voting down a ballot paper and simply lose count. They get the figures wrong. I was under the impression that as long as a preference was shown between candidates that was adequate to allow the vote to be valid. That should be the situation. For that reason I ask the Minister to accept the amendment.
Section 118 defines the various expressions used in Part XIX in relation to the counting of votes. The definition of a non-transferable paper makes it clear that if there is a break in the continuity of the preference marked on a ballot paper the paper shall be deemed to have become non-transferable from the point at which the break occurs. The returning officer is obliged to comply strictly with the instructions of the elector and must implement them exactly in so far as this is possible. However, the returning officer is not in a position to read the mind of the elector or to cross-examine him in relation to his intentions and he is not entitled to make assumptions. Unless the relevant preference is clearly indicated the returning officer cannot act on it.
To take a concrete if rather far-fetched example: suppose there are nine candidates, the elector places number 1 opposite candidate A and number 9 opposite the candidate B, leaving the other spaces blank. Obviously this is a valid first preference for candidate A but what is the returning officer to make of the second marking? It may be a botched attempt to write number 2 but, more likely, the elector is signalling that he does not want candidate B under any circumstances. There is no way of knowing. If the amendment were accepted candidate B would have to be regarded as the elector's second choice and that would seem to be a doubtful, if not downright perverse, interpretation of the elector's preferences. Therefore, I ask that the amendment be withdrawn.
It seems as if I am right in my interpretation of the provision. The Minister has given a far-fetched example. A more realistic one would be where a voter marks 1, 2, 3, 4 and 6, forgetting the order in which he or she has been marking the paper. The sequence may go 1, 2, 3, 4, 5, 6, 7, 8 and then 10. People get confused as they go up and down through a ballot paper trying to work their way through it. I was under the impression that once a preference was shown on the paper — even if it was not in sequence — that vote was accepted, it went into the system and was counted. I ask the Minister if there has been a change in the regulations in this Bill compared to what existed prior to its publication?
My wish in relation to this matter is that as many people as possible should be able to vote and that their votes should remain effective as long as possible. While I accept what the Minister says in relation to far-fetched examples, I also think you can play this thing either way. The case I make is as valid as what the Minister is saying and it errs on the side of keeping the vote going as long as there is some degree of preference shown.
There is no change. The ballot paper is consecutively accepted as long as there is continuity. When there is a break that is when the difficulty arises.
I accept the example the Minister gave as being quite legitimate. It might be the sort of thing I would do myself. When I go into the polling station, I usually put number 1 opposite the name of the candidate I favour. Then I go down the list and put 12 or 13, or whatever, beside the name of the candidate I definitely do not want.
The situation the Minister outlined is quite a realistic one. Some time ago there was a local election and the European election on the same day and there was a pink ballot paper and a blue ballot paper. Quite a large percentage of people took the two ballot papers, had them side-by-side and wrote down the numbers 1 and 2 for the European election and then 3 and 4 on the other ballot paper. The returning officer at the election in which I was involved said there was so many of them it became clear that if a person put 3, 6, 7, 8 or 10 on one paper, 3 indicated his first preference, 6 indicated his second preference and so on. They allowed them through. What would be the position now?
I understand that is relevant to another section.
I should like to support the Minister in his excellent reply. Both Senator Upton and Senator Hederman have probably made the case for the Minister in that they have been attempting, quite legitimately of course, to read the mind of the elector. Speaking for all of my colleagues on this side of the House, we are most interested and fascinated by Senator Hederman's mode of voting. I understand she has yet to be faced with a ballot paper in the Seanad elections and she will have a fascinating time working out the preferences if she starts at the bottom and works back.
I will get the Senator's assistance. Which section does my comment refer to?
The amendments have to be disposed of before we deal with the section.
Amendment, by leave, withdrawn.
I move amendment No. 139:
In page 70, subsection (2), lines 21 and 22, to delete paragraph (d).
The amendment proposes to delete paragraph (d) in page 70 because it is not necessary to the Bill. That is the point I am trying to make.
Section 118 (2) specifies the circumstances in which a ballot paper will be regarded as invalid. Paragraph (d) provides that a ballot paper on which anything is written or marked which, in the opinion of the returning officer, is calculated to identify the elector shall be invalid and not counted.
Amendment No. 139 proposes to delete paragraph (d). The purpose of the paragraph in question is to protect electors from undue influence or bribery. If an elector is bribed or put under undue influence to vote in a particular way he is, in the normal course, protected by the fact that voting is entirely secret. In an attempt to ensure that the elector will not vote in a particular way he could be put under pressure to identify his particular ballot paper so that someone present at the count could verify he had voted as directed. This could be done by putting a pre-arranged mark or writing on the ballot paper. In this way the secrecy of the ballot could be violated and the way opened for serious electoral abuse. By regarding such ballot papers as invalid, we can ensure that the voters are not subjected to this type of pressure or, if they are, that such pressure would be of no avail.
The effect of the amendment would be that the ballot paper would have to be accepted no matter what extraneous matter is written or marked on it. This could even include the full name and address of the elector. I have no hesitation in saying that this is unacceptable and the amendment should be withdrawn.
I am not sure that what the Minister says prevents people voting in a way that can be identified at counts. One hears stories of people using a wide range of pens, biros, fountain pens with unusually shaped nibs, etc. in certain types of elections.
The green biro.
That is basically the point I was coming to. It still does not preclude the possibility of people using certain codes in the way they vote. I do not want to make an issue of it.
When the polls are held on the same day, as happened, I raised the matter of people marking the two ballot papers.
Acting Chairman
That has nothing to do with amendment No. 139. It is related to another section.
Amendment, by leave, withdrawn.
Amendment No. 140 not moved.
Question proposed: "That section 118 stand part of the Bill."
Could the Minister clarify what he means by the statement "the returning officer shall prepare a statement on such forms as may be directed by the Minister, showing the number of ballot papers rejected by him under each of the paragraphs (a), (b), (c) and (d)". Am I to assume that when this statement is made it will set out the reasons under headings, for example, that people wrote their names on the ballot etc? Is that information available to us as Members of the Oireachtas or how is it made available? The provision is that the returning officer shall prepare the statement as directed by the Minister but it does not go on to state other than that the candidate or his agent will get a copy of it. What is the procedure? Does one write to the returning officer? How does one actually obtain it? This information is very important.
I am curious to know if this is a new provision or if this has always been the case. I was not aware that one could get this information. All of us will agree that it is a source of irritation to politicians to see the analysis of election results. In the most recent referendum, which was a simple matter of a straight "yes" and a straight "no", the percentage of spoiled votes was quite incredible. The number of spoiled ballots in each constituency was much higher than I had thought possible. In a PR election I can understand people being somewhat confused.
Does the Minister feel that the number of spoiled ballots in the most recent referendum is cause for concern? I would be anxious to know if, under the existing law it is possible to analyse those spoiled ballots or is this a new provision? I am giving the Minister an opportunity to set out the position and that is why I have been labouring the point somewhat.
My fear about this section relates to what will happen when we have two elections on the same day, perhaps a local election and a European election, or a local election and a national election. Two ballot papers will be given at the same time. Senators will know what I am referring to. An extensive number of voters mark the two ballot papers simultaneously putting the numbers 1 and 2 on the first and the numbers 3, 4 and 5 on the other, before coming back to the first ballot paper. It is perfectly clear from each ballot paper what was intended. There was a priority, but the difficulty was that the ballot papers which did not contain the number 1 beside anybody's name were disallowed, whereas the ballot papers which had a 1, 2, 6, 7 were allowed. Does this section deal with that?
I think the matters which Senator Hederman is dealing with are covered under section 166.
The points made by Senator Hederman will be coming up in section 158. The analysis is part of the record retained by the Clerk of the Dáil and it can be inspected or copied. Any information required may be obtained and the information is available to anybody. One can also take copies.
Question put and agreed to.
SECTION 119.
Question proposed: "That section 119 stand part of the Bill."
Will the Minister explain precisely what the word "mix" means in this section? I have attended many counts in my time. Ballot papers are taken out of the boxes, checked and put back in again and then they are taken out for the count. Is that the definition of "mix" or what precisely is it? I heard a legal argument some years ago about the definition of the word "mix". The argument put forward by some legal experts and my interpretation of "mix" would be totally different. I would like the Minister to clarify that.
Senator Naughten is dealing with a very important point in relation to what constitutes "mix". Where a candidate has more than a quota, the surplus is distributed. As I understand it, the surplus is taken off the top of the bundle of votes. If the votes are not mixed properly or uniformly, it is quite possible to have a fairly significant bias in relation to votes which are transferred onwards and which will then move onwards again to another candidate. By a careful selection of votes to be transferred on a surplus, it is possible to influence the course of the election three or four counts onwards. I remember being at an internal party election years ago where I saw a gentleman, who had a tremendous level of commitment and attention to detail, fingering his way through the ballot papers of a candidate who had more than a quota. I wondered what caused this great level of diligence but I figured it out afterwards. In transferring a surplus of, say, ten votes in a small election, if you picked out ten votes to be transferred to the bundle of votes of a candidate who was a "no hoper" which had a number three for a candidate whom you would like to see elected, those votes when subsequently transferred onwards would ensure that your man or woman in the election would be doing far better than a random sample of the ballot papers would justify.
Senator Naughten is alluding to a very important matter in relation to what "mix" amounts to. If the ballot papers are not mixed properly, then there will not be a random sample of them subsequently. By manipulating what is meant by "mix" it is possible to determine the outcome of counts down the road. That is particularly relevant in relation to rural election. If somebody in one area is guaranteed to have a surplus, if you can determine where the number 2s will go, it is possible to influence the count in terms of the votes transferred as part of somebody's surplus. It would probably be nowhere more relevant than in Senator Naughten's own constituency of Roscommon-Leitrim in the next election where I could envisage very clear patterns of number 2s and number 3s going in certain directions arising from who had a surplus and its distribution. I am not suggesting that this is a factor which inspired Senator Naughten to make what I consider to be an excellent point.
They are currently selling tickets for the convention.
By law, votes must be mixed. It is at the discretion of the returning officer what way he mixes the votes. They can be taken at random and for that reason there is a mix. It is up to the returning officer to decide what method he uses and what way he actually creates the mix of votes.
I am not just nit-picking on this issue. I have heard legal argument on it. One legal opinion was that "mix" meant effectively that the votes in every ballot box should be emptied out in the centre of the floor and literally mixed. That was one legal definition of "mix". My understanding of "mix" could well be that the votes, having been checked and put back in the ballot boxes, would be taken out and given to the counters; as they would be put back into the pigeonholes, of course there would be a mix coming from the different groups of counters and boxes from different parts of the constituency.
I just wonder if we could not find a better term than "mix" or at least define what "mix" is. I am not trying to pin down the Minister but it is important that we clarify exactly what we mean when we use the term "mix".
The example given by Senator Naughten is, I understand, the normal way the mix takes place. I have to come back to the point that it is a matter for the returning officer to decide how he proposes to carry out the mix of the votes. That is the position.
Would the Minister consider discussing this matter further with his officials and having it reviewed before Report Stage to see if we can have something more defined and clear? I would be very happy if the Minister had the matter examined, together with his officials, to see if we could precisely define what the word "mix" is in terms of a general election.
I support Senator Naughten. This procedure can be very important and it is open to abuse. I do not think the abuse is of any real significance but it is very easy to visualise certain sets of circumstances, particularly where a candidate would have two quotas. In the normal run of events it does not matter because the amount over a quota with most candidates would be fairly trivial. There are quite a number of constituencies where nobody exceeds the quota. It is possible to visualise a certain set of circumstances and I would like to see a definition of "mix" provided.
It is very difficult to define "mix". No matter what way you go about it, somebody will be dissatisfied. I would not want to give any false impressions here. I will certainly have a look at it for Report Stage.
Question put and agreed to.
Section 120 agreed to.
SECTION 121.
Acting Chairman
Amendments Nos. 141 and 142 are related and may be discussed together.
I move amendment No. 141:
In page 72, lines 41 to 52, to delete subsection (8).
My reason for putting in those amendments is quite clear and specific. Section 121 provides that where at the end of any count the number of votes credited to a candidate is greater than the quota, the surplus shall be transferred in accordance with and subject to the provisions of this section. I have no difficulty at all with the distribution of a surplus, but subsection (8) goes on to say that it must affect the two higher candidates or the two lower candidates. That is basically what the section provides.
The same principle should be adhered to in a general election or a local election as in a Seanad election, where all surpluses are distributed. Only after the distribution of surpluses should candidates be eliminated. The panel election system for the Seanad clearly provides that all surpluses shall be distributed. I suggest — and what we are talking about here is basic fairness — that all surpluses should be distributed before eliminations take place. It may not make any difference on the next count, but at later counts the fact that the surplus was not transferred could mean a different result. I have seen it happen and it is unfair. It should be a golden principle that all surpluses should be transferred before the elimination of candidates.
In one election I discussed that matter with the returning officer and the reason he gave for not distributing the surplus on that occasion was that he had made a ruling in a similar situation four general elections previously and he was going to stand beside that ruling. I asked him to quote the relevant section of the Act, but he was going on precedent.
We are formulating fair legislation that will give the maximum number of people the opportunity to use their democratic right. This is a non-political Bill. We would wish to ensure when it leaves here and is implemented that democracy will operate to its fullest. It should be a basic principle that surpluses be distributed before eliminations take place. It will not make any difference on the next count but, two or three counts later, in rural constituencies where different geographical areas exist, it can, does and did make a difference. The fact that a surplus was not distributed gave a different result at the end of the day. It should be a basic principle that all surpluses be distributed before candidates are eliminated.
These amendments in the name of Senator Naughten would have the effect of requiring the returning officer to transfer every surplus irrespective of its size and irrespective of the circumstances. Every surplus would have to be transferred whether it could affect the outcome of the election in any way, if it could help to save the candidate's deposit or if it could advance the count in any respect.
Under existing law which is contained in rule 65 of the Third Schedule to the 1923 Act, the returning officer has discretion to transfer a surplus in certain circumstances. Different practices by returning officers in exercising this discretion can sometimes give rise to misunderstanding. It was felt that this Bill provided a suitable opportunity to remove any element of uncertainty in this regard and to have uniform procedure in all constituencies.
Section 121 (8) spells out the very limited circumstances in which a surplus will not be transferred. The returning officer will not transfer a surplus if the surplus, together with all other untransferred surpluses, could not possibly give any continuing candidate a quota, could not save any candidate from elimination or could not save the deposit of any candidate. Outside these very limited circumstances, the returning officer will be obliged to transfer every surplus and the position of any untransferred surplus will be reviewed at the end of each count, and if at any stage the surplus could conceivably have any effect, it must then be transferred.
Section 121 (8) contains a watertight protection for all continuing candidates. A decision not to transfer a surplus may be taken only where it could not possibly make any material difference to any candidate. If the amendments were accepted the returning officer would have no choice but to transfer every surplus. As I mentioned in replying on Second Stage, you could have a situation on the first count where a candidate might be elected with just one vote over the quota. To transfer such a surplus consisting of a single paper would require the examination and re-sorting of all the candidates papers, possibly numbering up to 10,000 in all. The net effect of the amendments would be to require the transfer of a surplus where it would make no material difference to the course of the count and would thus require transfers of surpluses for purely academic purposes. I ask the Senator, therefore, not to press the amendments.
It is not for an academic purpose that I have put down those amendments. Far from it. Any amendments I put down to this Bill were designed to improve it. I am not trying to get into the nitty gritty. I have already stated that I know of a situation where the fact that the surplus was not distributed was disadvantageous to the outcome of a particular election. I also pointed out very clearly that the returning officer when requested by a candidate refused to distribute the surplus of another candidate, not on any legal grounds but because of a precedent created by his direction four general elections previously. It is bad law, it is bad legislation and I am prepared to accept that the Minister may on Report Stage introduce some better form of wording than I have suggested. I ask the Minister to provide that where a candidate requests that a surplus be distributed, that principle should be adhered to. It is the principle I am talking about. It operates in Seanad elections and I do not see any reason it should not operate in general elections.
I take the point made by the Minister about the one vote; that would be an extreme situation. I am trying to ensure that candidates who put their names on a ballot paper and go before the electorate have the right to demand that that surplus be distributed.
A mandatory obligation on the returning officer to transfer every surplus, no matter what the circumstances, is simply not on. If section 121 (8) as drafted is not acceptable, the only realistic option would be to revert to the existing situation where the returning officer has a discretion in certain circumstances.
I will have to press the amendment if the Minister is not prepared to have a look at this matter again before Report Stage. If the Minister and his officials want a clear example of what I am referring to, I will have no hesitation in giving it to them. I am trying to ensure that there is an even playing field. Where, for example, 1,500 votes are untransferred for two or three counts, at the end of the day the fact that those votes were not transferred will throw up a different result. That is morally wrong and does not reflect accurately the wishes of the electorate who voted for the candidate with the very large surplus.
I am aware of the timescale for the Bill and I do not want to drag out this debate. I am trying to get the best possible legislation in place. I am not suggesting that my amendment offers the best possible form of wording but I am open to discuss the matter with the Minister and if we can agree on a form of wording and have it brought in on Report Stage, I would be happy with that.
I would like to support Senator Naughten. I accept in most cases that probably what he is alluding to would not be of any material significance, but I can readily visualise a set of circumstances, particularly in rural areas, where there would be a local vote of say No. 1 for Senator Naughten, No. 2 for his competitor from the other party who is perhaps ten miles down the road. In those circumstances the question of who goes out 40 to 60 miles away in the constituency makes a huge difference as to where seats are won.
Absolutely.
I accept that most of the time it will not be of any significance and I do not want to labour the point that there should be a solemn obligation on everybody in the extreme example the Minister has given. I share the Senator's concern that it is a very important point and I appeal to the Minister to have another look at it and see if some compromise can be reached.
Section 121 (8) contains a watertight protection for all continuing candidates. A decision not to transfer a surplus may be taken only where it could not be possible to make any material difference to any candidate. If Senator Naughten has some example he might give it to us and we will have it examined.
I certainly will but there is not much point in giving it if we cannot discuss it at a later stage. I am asking the Minister for an undertaking that he will examine this matter before Report Stage and we will see what we can do at that stage.
Acting Chairman
Does the Minister wish to respond further?
If you give me the example we will examine it and see if there is anything we can do.
Amendment, by leave, withdrawn.
Section 121 agreed to.
SECTION 122.
Amendment No. 142 not moved.
Section 122 agreed to.
Sections 123 and 124 agreed to.
SECTION 125.
Acting Chairman
Amendments Nos. 143 and 144 are related and may be discussed together.
Government amendment No. 143:
In page 74, subsection (1), line 28, to delete "forthwith".
Amendments Nos. 143 and 144 are technical amendments to section 125 relating to the right of a candidate to request a recount of ballot papers at a Dáil election. As drafted, subsections (1) and (3) provide respectively that on a request for a re-examination and recount of the ballot papers dealt with in a particular count or a request for a complete re-examination and recount of all ballot papers, the returning officer shall forthwith re-examine and recount the ballot papers accordingly. The word "forthwith" in these provisions could be construed as requiring the returning officer to proceed with the re-examination and recount immediately, leaving no discretion to him to take a break for refreshments or overnight.
The amendments propose to delete the word "forthwith" from subsections (1) and (3). The amendments are designed to give the returning officer discretion to adjourn proceedings before commencing the re-examination and recount if he considers it appropriate. For example, the request might be made in the early hours of the morning after a long day's counting. Clearly it would be in everybody's interest at that stage to adjourn and commence the recount in the morning when staff and candidates alike will be refreshed. The returning officer will still, of course, be obliged to comply with the request for a recount.
Amendment agreed to.
Government amendment No. 144:
In page 74, subsection (3) (a), line 43, to delete "forthwith".
Amendment agreed to.
Acting Chairman
Amendments Nos. 145 and 146 are related and may be taken together.
I move amendment No. 145:
In page 75, subsection (3), lines 5 to 8, to delete paragraph (d).
It seems to me that the Government amendment is dealing with something very different from that contained in our amendment. Amendment No. 145 proposes the deletion of paragraph (d) while amendment No. 146 proposes the insertion of a new paragraph (e). We are not concerned with the question of dealing with something forthwith. We accept that. In paragraph (d) is it the returning officer who decides on what is frivolous or vexatious? There is no referee. While it is desirable that the word "forthwith" has been deleted it is not consistent with the question. In other words, the returning officer is given plenty of time, because of the deletion of the word "forthwith", to think about any such request. The implication is that in the case of a request being regarded as frivolous or vexatious the returning officer makes the decision immediately and he does not give any consideration to it.
Section 125 (3) (d) is a new provision which provides that a returning officer shall not be obliged to accede to a request for a recount which, in his opinion, is frivolous and vexatious. Amendment No. 145 proposes to delete this provision. Under existing law the returning officer is obliged to comply with the request from a candidate, or his election agent, for a complete re-examination and recount of ballot papers, irrespective of the circumstances. Under existing law a candidate who receives half a dozen first preference votes and is eliminated on the first count would be entitled to demand a complete re-examination and recount of all ballot papers at the end of, say, the tenth count, and under existing law the returning officer would be obliged to accede to such a request. Such a recount would serve no useful purpose. It would simply delay the declaration of the results and cause annoyance and inconvenience to candidates and other involved in the counting process. It does not seem very sensible to retain this possibility and, for this reason, paragraph (d) proposes to give the returning officer a measure of discretion. I think this is a desirable reform and that the paragraph should be retained.
Having listened to the Minister I accept his views.
Amendment, by leave, withdrawn.
Government amendment No. 146:
In page 75, subsection (3), between lines 8 and 9, to insert the following new paragraph:
"(e) A request under this subsection may be made only at the conclusion of a count."
Amendment agreed to.
Question proposed: "That section 125, as amended, stand part of the Bill."
I wish to put a brief question to the Minister. I cannot find the reference to a quota change as a result of a recount. We clearly specify where quota comes into it with regard to the first count but where, for example, there is a complete recount, and there is 1 per cent of spoiled ballot papers found in the recount, I do not see any provision in this Bill to allow the quota to be changed. The quota is set after the first count, but in the event of a recount at a later stage, is there provision in the Bill for a change of quota?
I agree that Senator Naughten has raised a very interesting and important point. It is essential that there should be provision in the Bill to allow for the change of a quota. It has been known in elections where people simply counted, being out one, two or three — 99 as distinct from 100 — but the real difficulty in relation to the quota arises where somebody mistakenly counted numbers of bundles of 100. In those circumstances, that could have a serious impact on the quota given that you would be talking in terms of a recount where a few votes could decide who would win and lose seats.
Section 125 (4) provides that where an error is discovered, the returning officer shall, where necessary, amend any results previously announced by him. Where a request under subsection (3) is withdrawn by the candidate in respect of whom it is made or by the election agent of the said candidate, it shall be open to the returning officer not to proceed or to proceed further with the re-examination and recount.
From my reading of the section it is clear that if in the event of the recount, there is a different result, there is no difficulty about that, the returning officer will change it, but in my view it does not cover the changing of a quota. This is a very important principle. I have had experience of where senior counsel had to be called in to get a returning officer to change the quota where there were 57 spoiled votes — Senator Mullooly will be well aware of this — and the quota was changed by 18. Let us be frank about it, there did not appear to be a provision where the quota, once set, could be changed.
This is a golden opportunity to deal with this issue. As far as I am concerned there is nothing in the Bill which allows for a quota change. It allows the decision to be changed if there is different personnel, but I do not see where it is clearly specified that, in the event of a recount and a spoiled votes surplus or a mistake involving a wrong bundle of votes, as outlined by Senator Upton, there is provision for the change of a quota. I would be happy if the Minister would examine this matter before Report Stage.
There must be clear guidelines for the returning officer. If the guidelines are vague that can lead to dispute and the possibility of the returning office being challenged on every vague issue of the day. If we are talking about the quota being changed because of the number of spoiled votes, we are on very weak ground. I would question the strength of the legislation if a quota could be changed after a recount.
Senator McGowan misunderstood what I said. He refers to vague guidelines; that is what I do not want. I want clear cut guidelines. In the event of a number of spoiled votes turning up in a recount, moral justice would dictate that the original quota was wrong. I want a provision in this Bill that will facilitate the returning officer in changing the quota to what should be the right quota.
Any error found in the recount can be corrected, including any recalculation of the quota.
Under what section?
A re-examination and a recount means looking at every paper. It should be said that the counting of votes at our elections is carried out with extreme care and efficiency. The provision for a complete recount has existed in the law since 1963. I am not aware of any occasion in which a complete recount has resulted in a different candidate being declared elected.
Acting Chairman
Is section 125, as amended, agreed to?
I am still not happy with this section. I think it is too vague with regard to the changing of a quota. I am not going to split hairs with the Minister on this, but I would ask him to discuss it with his officials to see if we can clarify this section. I have had first hand experience of this situation and I know how difficult it is to get a quota changed once it is set.
Question put and agreed to.
Section 126 agreed to.
SECTION 127.
Amendment No. 147 not moved.
Section 127 agreed to.
Sections 128 and 129 agreed to.
SECTION 130.
Government amendment No. 148:
In page 76, subsection (5), line 42, to delete "pursuant to this section".
Section 130 provides for the production by the Clerk of the Dáil of certain documents which may be required for the purposes of instituting or maintaining prosecution for an electoral offence or for the purpose of a petition. Under this section a person may not be allowed to inspect the documents except under an order of the High Court.
Subsection (5) provides that where documents are produced by the Clerk of the Dáil under an order made under this section, the production by or on behalf of the Clerk of the Dáil of the documents shall be sufficient to prove that the documents related to the election question.
Amendment No. 148 is a technical amendment to make it clear that the provisions of subsection (5) are not confined solely to the documents to be produced by order of the High Court under this section. The District Court could require the production of documents in hearing a case dealing with an election offence or the Supreme Court could conceivably make an order for the production in court of the documents in the event of an appeal. The effect of the amendment would be to clarify that in the event of an order being made by any court for the production of the documents, the production by or on behalf of the Clerk of the Dáil is sufficient to prove that they relate to the election in question.
Amendment agreed to.
Section 130, as amended, agreed to.
SECTION 131.
I move amendment No. 149:
In page 77, line 9, after "fees" to insert "not exceeding the reasonable cost of copying)".
This amendment relates to the fees which would be charged for copying. There has been a similar amendment which the Minister accepted. I hope he will be consistent and accept this amendment also.
I am accepting this amendment.
Amendment agreed to.
Section 131, as amended, agreed to.
Sections 132 to 138, inclusive, agreed to.
SECTION 139.
I move amendment No. 150:
In page 81, subsection (1) lines 36 and 37, to delete "date on which the return is made to the Clerk of the Dáil under section 39," and substitute "close of poll,".
I am puzzled as to why the restriction of the definition of when disorderly behavioural conduct at election meetings takes place should range from when the writ for the election has been issued — which is reasonable enough — until the date on which the return is made to the Clerk of the Dáil under section 39. I would have thought that it would be more appropriate to define this period as from the date of the issuing of the writ for the election to the close of poll.
Section 139 which repeats existing law without any change provides that it shall be an offence to act in a disorderly manner at a public meeting held in connection with an election between the issue of the writ and the date on which the return is made to the Clerk of the Dáil.
Amendment No. 150 proposes to substitute the expression "the close of the poll" for the expression "the date on which the return is made to the Clerk of the Dáil". In putting down this amendment Senators may have lost sight of the fact that an election does not necessarily include the taking of a poll. Uncontested elections are, admittedly, rare events in this country. Nonetheless they can occur and section 58 specifically recognises that possibility. It is probably not a matter of great moment when the prohibition referred to in section 138 expires. However, if we are to use the form of wording proposed in the amendment the section would be defective and hence possibly unenforceable.
Amendment, by leave, withdrawn.
Section 139 agreed to.
Sections 140 to 146, inclusive, agreed to.
SECTION 147.
Acting Chairman
Amendments Nos. 151 and 164 are related and may be discussed together.
I move amendment No. 151:
In page 83, lines 11 to 30, to delete subsection (2).
Section 147 (2) met with a fair degree of agreement from most political parties, including our own. I see much merit in what is being proposed. If I were to have a criticism it would be about the distance or the circumference around the polling station being increased. However, the reason we have put down this amendment is to raise the possibility that what is being proposed here may be unconstitutional. I understand it may be unconstitutional because it may interfere with freedom of expression. I gather that in the United States there has been at least one case Freeman v. Burson in 1990 which says that these type of restrictions are invalid. I would like to hear the Minister's response to that possibility.
Section 147 (2) provides for a prohibition on political activities within 50 metres of a polling station on polling day at a Dáil election.
Section 176 contains a similar prohibition in relation to local elections. Amendment No. 151 proposes the deletion of section 147 (2). This would involve dropping the detailed provision and retaining only a general prohibition on interference with and obstruction of electors.
Amendment No. 164 proposes to extend the area within which the detailed prohibition will apply from 50 metres as proposed in the Bill to 100 metres. The provision of subsection (2), as drafted, is quite comprehensive, encompassing all forms of canvassing, loitering or congregating by persons, display of posters, distribution of leaflets or by use of loudspeakers. The intention is to ensure that an elector can come and go to the polling station to cast his vote, unimpeded by canvassers.
While there was a general welcome by Senators for this provision during Second Stage debate some Senators had reservations about certain aspects of the provision while others, including Senator Ó Foíghil, felt the provision did not go far enough. In a sense the amendments we are now considering reflect these different views. I can understand and to an extent sympathise with the reservations expressed by both sides. The problem that has been identified and which has been raised several times in the Oireachtas is a very specific one. The belief is that the congregation of canvassers outside polling stations can obstruct electors and cause concern to them. The problem is specific and must, I believe, be addressed in a specific way.
The deletion of subsection (2), as proposed by amendment No. 151, would leave in place only a very general provision. I do not believe it would be possible under the general provision to deal adequately with the specific matters complained of. It is likely that the Garda, under general powers, could intervene in any case of actual obstruction. The general provision in subsection (1) would, therefore, not represent a significant advance in this situation and would not be effective in removing an intimidating effect of a mere presence of substantial numbers of canvassers. I consider that retention of subsection (2) is essential if the section is to achieve the objective of allowing the elector to go to a polling station to cast his vote completely unimpeded and free from the pressure of this type of canvassing.
I feel that the proposed limit of 50 metres in the Bill strikes the correct balance. I would like to remind the House that under section 176 the distance of 50 metres is measured from any entrance to the polling station or, if the building in which the polling station is located is situated on its own grounds, from any entrance to the grounds. In many cases, especially in built-up areas where the problem is most prevalent, this would mean that the canvassing will, in effect, be prohibited well in excess of 50 metres from the actual entrance to the building in which the polling station is located. This is a new provision in our electoral law and it is reasonable that we should wait and see how the provision will work in practice. If in the light of experience in the operation of the provision problems arise the matter can be looked at again. Therefore, I suggest that both amendments be withdrawn.
Amendment, by leave, withdrawn.
Section 147 agreed to.
Sections 148 to 152, inclusive, agreed to.
Sitting suspended at 5 p.m. and resumed at 6 p.m.
SECTION 153.
Amendment No. 152 not moved.
Section 153 agreed to.
Sections 154 to 157, inclusive, agreed to.
SECTION 158.
An Leas-Chathaoirleach
Amendments Nos. 153 and 154 are related and may be discussed together.
I move amendment No. 153:
In page 85, line 22, to delete "not exceeding £500".
These amendments seek to remove the limit of £500 which is the total amount of damages which can be paid to somebody who has been improperly arrested as the result of a decision made by a personating agent. I think that £500 is a very small amount to pay somebody who has been treated in that manner. There is also in this section a provision which excludes the possibility of such an individual taking a civil action against the person who treated them in that manner. It is unacceptable that we should have a ceiling of £500 placed on the amount of damages which can be awarded to somebody who has been unfairly or improperly arrested and that their capacity to take a civil action should be limited.
Section 158 repeats existing law. It provides for the payment of damages to a person who has been arrested on foot of a charge of personation made by a personation agent and either the agent fails to appear before the court to support the charge or the court acquits the person and finds that the charge was made without reasonable or just cause.
The court may order the payment of a sum not exceeding £500 at the request of the person charged without the need for the further court action on his part. However, this compensation must be accepted in full satisfaction of all claims arising from the arrest or charge and detention. The compensation figure specified in existing law is £20. Amendment No. 153 proposes to remove the ceiling of £500 on damages payable under the section. Amendment No. 154 proposes to delete the requirement that this compensation must be accepted in full satisfaction of any claims arising from the charge, arrest and detention.
The effect of these two amendments would be that there would be no limit to the amount which the court could order and the person concerned would retain the option of a further claim for compensation by way of civil action. Section 158 provides a simple mechanism for a person against whom a charge of personation is unjustifiably made to claim limited damages for charge, arrest and detention. During the course of trial, this sum could be awarded to him at his request. No separate action with its atendant costs and inconvenience would be necessary. In return, he would accept this award as final settlement. There would, of course, be no obligation on the injured party to use the mechanism provided by this section. He would be quite free to seek redress through the normal civil process.
Acceptance of the amendments would frustrate the purpose of the section which is to provide a simple and relatively inexpensive way of reaching finality. It would be preferable to delete the section entirely rather than amend it in this way. I trust the amendment will be withdrawn.
A sum of £500 seems very small for someone who might be badly damaged in terms of the impact on their character and reputation.
How does the Minister decide to change these figures? The figure is £20 in existing legislation and it has been increased to £500, but are the conditions the same — that such sum when duly paid shall be accepted by the person so charged in full satisfaction of all claims by him in respect of damages arising from the said charge and his arrest and detention thereon — in the present legislation or is the figure of £20 independent of that? It is interesting that it has been increased from £20 to £500 whereas other sums in this Bill have increased from £100 to £500? What equations does the Minister work on to produce these rather arbitrary figures? Is it a type of blackmail of the person who has been charged with personation, they can take the £500 if they do not, they might not get anything because they might not succeed in civil proceedings? There is a form of blackmail in this, and I wonder was it in the prevous Act, and does this section stand up?
The amount of damages permitted under the provision has increased from £20 to £500. The increase is roughly in line with inflation over the past 70 years. There is no compulsion on the individual to take this route. They can take other courses of action if they wish.
The Minister said there is no compulsion to accept this course of action but there is in one way because if a person is certain of being given £500 and does not take it what are the options open to them? One may end up not getting anything at all. There is a certain compulsion in it.
It is a matter for the courts to decide. If the person decides to take another route in relation to this matter that is a matter for themselves and the court will make a decision on that.
Amendment, by leave, withdrawn.
Amendment No. 154 not moved.
Section 158 agreed to.
Sections 159 to 161, inclusive, agreed to.
SECTION 162.
An Leas-Chathaoirleach
Amendments Nos. 155 and 156 are related and both may be discussed together.
I move amendment No. 155:
In page 86, line 4, after "proceedings" to insert "or for any other purpose".
These two amendments are concerned with preserving the secrecy of the ballot. The first one broadens the protection given beyond legal proceedings by inserting "or for any other purpose". The second one inserts the term "whether or not somebody had voted". While protection is given to those who have cast their vote, there is concern in relation to people who may not have voted. If somebody has not voted, that might tell one as much as knowing that they did vote. It is a very important consideration. If somebody can be forced to say whether they voted, then I think that could seriously compromise them in relation to the impressions people might have had about their voting tendencies and so on. Pressure should not be brought to bear on them to determine whether they voted, in much the same way as is not acceptable to ask them or force them to say how they cast their vote.
Section 162 re-enacts the existing provision which provides that in any legal proceedings a person shall not be required to state how or for whom he voted. Amendment No. 155 proposes that this prohibition should be extended to cover any other purpose in addition to legal proceedings and under amendment No. 156 it would cover whether the elector voted, in addition to how and for whom.
The section is designed to protect an elector who may be involved in court proceedings, for example, in relation to an electoral offence or an election petition. Under this provision he could not be required to indicate how he voted at an election, even if that could have a direct bearing on the court proceedings, for example, in a charge of bribery or undue influence.
It is not clear what type of situation other than court proceedings is envisaged in amendment No. 155. I am not aware of any situation other than a court or a tribunal having the powers of a court in which a witness could be required to answer a question in relation to voting. The Garda are empowered under certain enactments to require persons to provide particular information. None of these has any relevance to elections. Neither the Oireachtas nor any select committee can compel a witness to answer any question. If what is in mind is the possibility of discrimination against a person because he did or did not vote in a particular way, this would seem to be a matter for anti-discrimination legislation. It could hardly be a matter for this legislation which is intended primarily to deal with the technical procedures at Dáil elections.
Is it possible during the course of a legal case for somebody to be legitimately asked whether they cast their vote? If the answer to that is "yes", then it is a very serious matter because the fact that they may not have cast their vote could be of tremendous importance in certain circumstances. If they were a well-known supporter of a political party and if it were put to them in a law case, did they not cast their vote and they admit that they did not, that could seriously compromise them. That is what we are striving after in one of those amendments.
If a person is being tried on a charge of personation it is reasonable that he should be asked in court whether he voted. The information could also be crucial where a third party might be charged with personating an elector. Similarly in an election petition, evidence as to whether particular electors actually voted themselves or were personated could be vital.
Again, I stress that showing that a person voted does not necessarily mean he actually marked the ballot paper. It merely means that a person obtained a ballot paper and placed it in the ballot box. In any event, whether a person voted is not and cannot be a secret. Entering the polling station, receiving a ballot paper and placing it in the ballot box are intended to be public acts. In the ordinary way the fact that an elector voted can be ascertained by checking the marked copy of the register which is sent to the Clerk of the Dáil for retention for a period of six months under section 129. The register may be produced to a court and under section 131 may be inspected by any person.
This amendment is inappropriate and I ask that it be withdrawn.
Amendment, by leave, withdrawn.
Amendment No. 156 not moved.
Section 162 agreed to.
Section 163 agreed to.
SECTION 164.
Question proposed: "That section 164 stand part of the Bill."
Will the Minister look at this section again? It would not be appropriate to interfere with returning officers in the manner outlined in the section as they are independent.
Section 164 enables the Minister to issue instructions to all or any returning officer in relation to the conduct of an election which he considers necessary to ensure the smooth and efficient running of the election and uniformity of procedure in all constituencies. This is a new provision in Dáil electoral law. I am inclined to agree with the Senator that in view of the independent role of the returning officer at a Dáil election, where he or she is not answerable to the Minister, such a provision may not be desirable. I will examine this for Report Stage to see whether this provision should be retained, amended or dropped.
I thank the Minister.
I am very pleased Senator Fitzgerald asked that this section be looked at again. It did strike me that it was not really in line with the Minister's thinking which he expounded on so eloquently when he said the Oireachtas should not concern itself with items of detail and get bogged down with minutiae but should concentrate on the broad principles. It seemed to me the Minister in getting involved in issuing instructions to returning officers was not in line with his enlightened and very welcome new thinking. I greatly welcome the reply given to Senator Fitzgerald.
Question put and agreed to.
Section 165 agreed to.
SECTION 166.
I move amendment No. 157:
In page 88, lines 5 to 9, to delete paragraph (g).
I have a lot of difficulty with this amendment. Section 166 (2) (g) reads:
a candidate who would be entitled to exercise the right to free postage pursuant to section 57 or otherwise in relation to more than one poll may include in a postal communication sent by him material in relation to each such poll.
Does that mean there should be a reference in section 57 of a poll because I cannot see any such reference but it is mentioned in section 166.
I remember a case where a candidate was standing in two elections — let us say a local election and a European election — and was entitled to free postage for one of them. May I ask the Leas-Chathaoirleach if European election candidates get free postage?
An Leas-Chathaoirleach
It is up to the Minister to answer questions like that.
They had free postage for the European election but they were able to include literature in their free post envelope which assisted candidates running in the local election. Unfortunate candidates such as myself, who used to be called Independents and now apparently are to be called Non-Party, did not have that advantage. When I read the section and referred back to section 57, I became confused by my amendment which unfortunately was not accepted. It asked the Minister to agree to give candidates at a local election free postage. I maintain that I would be supported in this by everything that is happening in the European Community and the various dictats that come to us——
An Leas-Chathaoirleach
It has been brought to my attention that the Senator has an amendment to section 176, which deals with free postage.
What is the number of the amendment please?
An Leas-Chathaoirleach
Amendment No. 162 dealing with free postage.
That has been disallowed.
An Leas-Chathaoirleach
The Senator cannot bring it in at this stage.
I accept that. I know, unfortunately, that amendment No. 162 will be disallowed. That deals with the question of free postage for local elections. Am I allowed to refer back to section 57?
An Leas-Chathaoirleach
No. The Senator is dealing with amendment No. 157 on section 166.
Section 166 (2) (g) refers to section 57 and states:
a candidate who would be entitled to exercise the right to free postage pursuant to section 57 or otherwise in relation to more than one poll may include a postal communication sent by him, material in relation to each such poll.
An Leas-Chathaoirleach
So long as the Senator speaks within the context of the amendment.
I am speaking to this section. Perhaps the Minister would clarify the position. If a person stands for the Dáil, European and local elections at the same time, and he gets free postage for one, can he avail of that to further the interests of his running mates or any other candidate in the other elections?
Under existing electoral law, a candidate at a Presidential, Dáil or European election is entitled to send free of postal charge one communication in relation to the election to each person on the register of electors for the constituency. In the case of a Dáil or European election where two or more candidates are candidates of the same political party in a constituency, they may issue a joint communication only, in other words, they are treated as a single candidate.
Where two or more elections are held on the same day and the person is a candidate at more than one election at which free postage applies, he may, under existing law, issue a separate election communication, separately addressed, for each poll concerned. He would not be entitled to refer to both elections in the same communication nor could he include separate communications in a single envelope.
Section 166 repeats existing law which facilitates the taking of two or more polls on the same day. Subsection (2) (g) includes a new provision to allow a person who is a candidate at two or more polls to issue a combined communication relating to both polls. In order to avail of this arrangement, the free postage provision must apply at both polls and a person must be a candidate at both polls. We are concerned here with Presidential elections, Dáil elections and European elections, in other words, elections at which free postage applies. Subsection (2) (g) has no relevance to local elections because there is no provision for free postage at local elections. Amendment No. 157 proposes to delete paragraph (g) thereby retaining the existing situation.
I want to spell out that paragraph (g) confers no new right to free postage on anybody. The paragraph simply provides that where a candidate would under existing law be entitled to issue two post free letters, he may now combine those in a single letter. For example, if he is a candidate on the same day at the Dáil elections and the Euro elections, he will now have the option of sending a single letter referring to both elections. This will save on the cost of postage which is borne by the central fund and the cost of supplying and addressing envelopes which is borne by the candidates. That is all the paragraph is about.
I want to make it clear that the paragraph has no implications whatever in relation to local elections. There is no provision for free postage at local elections and the paragraph, therefore, has no application to those elections.
Having studied the paragraph very closely I can see that there could be a degree of ambiguity. I am not sure, for example, that it covers adequately the position in relation to party candidates who, for the purpose of the free postage facilities, are treated as a single candidate. It would be desirable, too, that for clarification purposes the paragraph should spell out that no new right to free postage is conferred. I will have the wording further examined before Report Stage.
I ask that the amendment not be pressed and I will have an appropriate amendment drafted for Report Stage.
The Minister said he will come back on Report Stage and in the meantime, I will study what he said. The Minister has been most helpful. I want to establish what the difference would be between the situation under this Bill as opposed to the situation under the last Act. If I read over the Minister's words of wisdom, I think I will be able to establish that. We will have an opportunity to come back to it on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 158:
In page 88, subsection (2), between lines 9 and 10, to insert a new paragraph as follows:
"(h) a vote shall not be invalid by reason of a lack of first preference or subsequent preferences if in the opinion of the returning officer it clearly indicates the order of preference expressed by the elector".
This amendment has been designed to deal with the type of problems which arose in the European Dáil elections in 1989. In those elections, supporters of some parties voted, let us say, in the Dáil election 1, 2, 3 for the candidates of their party and then they went on to vote 4, 5 and 6 for the candidates of their party in the European election or vice versa. That was evident to all who had been present at the counts of both those elections. I am easy as to the overall impact of this because it tends to cancel itself out when spread across the different parties. However, I am anxious that the Minister would allow votes to be valid in as far as possible given that a preference is indicated on the ballot paper and it is for that reason we have put down this amendment.
We also put down this amendment because returning officers made different rulings on this matter in the 1989 European elections. In the Leinster electoral area, as far as I recall, ballot papers which were marked with the fourth, fifth and sixth preferences for the European elections were excluded, whereas in the Dublin constituency ballot papers marked in that manner were included and counted. It did not have any great impact on the outcome of the election and there is some evidence to support that in relation to the case which was taken by my colleague, Deputy Bell, in the other House. Mr. Justice Hamilton, when deciding on that case went through some of the ballot papers to see if that factor was an important determinant in whether the seat would have gone to Mr. Fitzsimmons or Mr. Bell. Apparently, from Mr. Justice Hamilton's analysis of the ballot papers it was not a factor that would have changed anything very important, However, I would like to see this matter clarified and standardised. We have tabled this amendment basically on those grounds.
Amendment No. 158 proposes to insert a paragraph in this section to provide that when two or more polls are taken together, a ballot paper in respect of either poll shall not be invalid if the preferences indicated on it do not include a first preference or subsequent preferences. The effect of this amendment would be that the ballot paper on which an elector marked, say, 5, 6, 7, 8 and so on, would be accepted as valid, with the lowest preference being regarded as the electors first preference on that paper.
I have a certain sympathy with the objective of this amendment. It is designed to cover a situation where a voter marks one ballot paper in the normal way, and then continues the order of preferences on the second ballot paper.
This matter can arise in the case of polls taken on the same day. Under the electoral law, it is a matter for the returning officer to decide what the voter's instructions are on the ballot paper. I understand that where this matter has arisen in the past the practice among returning officers in dealing with such ballot papers has varied.
There is a fundamental conceptual problem in dealing with this matter by legislation. I do not see how the law can say, in effect, that in certain circumstances the figure 5 shall be deemed to be the figure 1. If a returning officer finds a paper marked 5, 6, 7, he has no way of knowing that there is a corresponding paper marked by the same elector bearing the marking 1, 2, 3. And I do not think that the returning officer is entitled to make any assumption on this.
Let us look at an extreme possibility. In a particular situation where two polls are held together there are, say, five candidates on one of the ballot papers. The figure 5 is placed opposite the name of one candidate on the paper and all the other spaces are left blank. Under the approach recommended in the amendment this mark would be regarded as a first preference vote for that candidate. With at least equal logic, one could take the view that the elector is signalling that he does not want this particular candidate at any price. He has no particular choice as between the other candidates but he is quite certain that this particular candidate would be his very last choice.
I suggest that this is not a matter that can be legislated for. It is a matter for education and information in which we can all play a part. In the meantime, the decision should be left, as at present, to the returning officer whose job it is to interpret markings on ballot papers. Clearly, it would be desirable to have regard to the views of the returning officers on this matter and, as I have indicated returning officers have divided opinions on it.
I am quite prepared to have it further examined in consultation with returning officers to see if there can be a consensus among them in relation to the type of marking that could be accepted. My gut feeling remains that it cannot and should not be legislated on.
I agree with the Minister in terms of the need for information. Part of the problem in 1989 arose because there was an inadequate level of information. Secondly, and very interestingly, the Minister has come down clearly on one side of this argument. By implication he is saying that one very distinguished returning officer with perhaps 30 or 40 years of experience, got it all wrong. I sincerely hope that gentleman does not read the proceedings. I am sure he will be quite upset.
I understand the Minister to say that we were to leave it to the returning officer to interpret the matter. However as Senator Upton, the proposer of the amendment said, it is not evident it had a significant impact. I agree with the Minister that we should leave it to the wisdom of the returning officers. It varied from constituency to constituency depending, for example, on the number of candidates on each paper. Different circumstances prevailed in that case, and I do not think one could say because one returning officer gave one interpretation and another returning officer gave another, that one was right and one was wrong. It would depend on many factors.
Amendment, by leave, withdrawn.
Section 166 agreed to.
NEW SECTION.
Amendment No. 159 not moved.
Sections 167 to 173 inclusive, agreed to.
SECTION 174.
I move amendment No. 160:
In page 96, line 9, after "Parliament." to add "These proposals shall ensure that the ratio between the number of members to be elected at any time for each constituency and the population of each constituency, as ascertained in the last preceding census, shall, so far as it is practicable, be the same throughout the country."
This amendment seeks to apply the same standards to European elections in relation to the ratio between the number of members to be elected at any time for each constituency and the population in each constituency. This principle applies to Dáil elections and I hope the Minister will accept the amendment. I cannot see any reason the principle which has been accepted and guaranteed in the Constitution in relation to Dáil elections should not apply in relation to European elections. It would be unfair to have dis-proportionality between different parts of the country in relation to the capacity to return a member.
Section 174 (a) provides that the Minister shall submit proposals to the Oireachtas for the revision of Euro constituencies before 1 December 1993, and once in every ten years thereafter.
Amendment No. 160 proposes to add a provision to require that the ratio between the number of members to be elected at any time for each constituency and the population of each constituency, as ascertained in the last preceding census, shall so far as practicable, be the same throughout the country.
It will be noted that the words which the amendment proposes to add are identical with those contained in Article 16 of the Constitution in relation to the revision of Dáil constituencies. However, the similarity ends at that point, because the constitutional and legal situation in relation to the revision of Dáil constituencies is quite different from that obtaining in relation to the constituencies for European Parliament elections.
In accordance with the Constitution, the Oireachtas is required to carry out periodic revisions of Dáil constituencies. In doing so, the Oireachtas is obliged to comply with the relevant provisions of the Constitution, including the provision in relation to equality of representation. If the Oireachtas fails to comply with these provisions, the revision would be unconstitutional and could be struck down by the courts.
There is no constitutional requirement in relation to the European constituencies; the matter is not referred to at all in the Constitution. Neither is there any requirement in this regard in the treaties establishing the European Communities nor in the Community Act relating to direct elections. The formation of Euro constituencies is, therefore, entirely a matter for the Oireachtas to be dealt with in ordinary law. What would be involved in revising the Euro constituencies would be an amendment of the Second Schedule to the European Assembly Elections Act, 1977. Obviously in reviewing the constituencies, the Oireachtas would have regard to equality of representation as well as to the other principles normally applying to the revision of constituencies, but there could be no external requirement on the Oireachtas to have regard to any particular matter.
It is a fundamental principle of parliamentary theory that the Oireachtas cannot bind its successors. Each Oireachtas is free to legislate in whatever way it thinks fit, constrained only by the Constitution, or the provisions of international treaties. To include the provision proposed in the amendment would be futile; the Oireachtas could simply ignore it or repeal it at will.
There is also the point that we are dealing here with a purely temporary situation. The treaties and the relevant Community Act envisage a uniform electoral procedure to apply at Euro elections in all member states. Once a uniform procedure is agreed, the constituencies in this country may have to be changed utterly or disappear altogether. The revision we are talking about now may, in the event, never take place or come into effect or may have effect for one election only.
The proposed amendment would not serve any practical purpose and should be withdrawn.
Amendment, by leave, withdrawn.
Section 174 agreed to.
NEW SECTION.
Government amendment No. 161:
In page 97, before section 175, to insert a new section as follows:
"175.—Section 63 of the Postal and Telecommunications Services Act, 1983 is hereby amended by—
(a) the insertion of the following paragraph after paragraph (g) of subsection (3):
(h) the sending, conveyance and delivery otherwise than by post of any document, following consultation with the Minister for the Environment, by a returning officer at a Dáil, European or local election, in the performance of his functions under the Electoral Act, 1991, the European Assembly Elections Acts, 1977 to 1991, and the Local Elections Acts, 1963 to 1991, and by a local returning officer at a presidential election, a European election or a referendum in the performance of his functions under the Presidential Elections Acts, 1937 to 1991, the European Assembly Elections Acts, 1977 to 1991 or the Referendum Acts, 1942 to 1991 where the returning officer or local returning officer, as the case may be, is of the opinion that An Post is not in a position to provide the required services"; and
(b) the substitution of the following subsection for subsection (4):
"‘Nothing in paragraphs (b) to (h) of subsection (3) shall be taken as authorising any person to make a collection of postal packets for the purpose of their being sent, conveyed or delivered in accordance with that subsection.'"
Section 175 provides for an amendment to section 63 of the Postal and Telecommunications Services Act, 1983. It inserts a new paragraph in section 63 (3) adding to the list of exemptions from the exclusive privilege of An Post, the delivery of documents by a returning officer otherwise than by post, where An Post is not in a position to provide the necessary service.
Amendment No. 161 provides for a consequential technical amendment to section 63 (4) of the 1983 Act to include, in a cross reference in that subsection, a reference to the new provision in subsection (3). The need to amend the cross reference was overlooked when the present Bill was being drafted and this amendment makes good the oversight. It is purely a technical matter.
Amendment agreed to.
Section 175 agreed to.
NEW SECTION.
An Leas-Chathaoirleach
Amendment No. 162 is out of order as it involves a potential charge on Revenue.
Amendment No. 162 not moved.
SECTION 176.
Government amendment No. 163:
In page 97, between lines 51 and 52, to insert the following new paragraph:
"(a) the insertion of the following article after article 32:
‘32A. Any ballot boxes, fittings for polling stations and compartments provided for Dáil elections in a Dáil constituency in which a local electoral area is wholly or partly situated may be used for any local election in such local electoral area; and any damage, other than reasonable wear and tear, caused to any such ballot boxes, fittings and compartments by such user at a local election shall be paid as part of the expenses of the election';".
Existing law on Dáil, Presidential and European elections and referenda provides that the returning officer at such elections and referenda may use ballot boxes and other fittings for polling stations provided for local government elections in any electoral area wholly or partly contained in the constituency concerned. These provisions give the returning officer at national elections and referenda the right to use, free of charge, any election equipment which is in the ownership of a local authority.
No reciprocal provision exists in local elections law to enable returning officers at local government elections to use equipment provided for use at national polls. Amendment No. 163 proposes to amend the Local Elections Regulations, 1965 to provide for such a provision.
In practice, as close co-operation exists between both sets of returning officers, it is considered desirable to provide for such a provision as much of the equipment for use at elections is now provided for and held by Dáil returning officers and the same electoral equipment is, by and large, used at all elections. For completeness, however, it is considered desirable that there should be an explicit legal basis in all the codes for this sharing.
Amendment agreed to.
An Leas-Chathaoirleach
Amendment No. 164 has already been discussed with amendment No. 151.
What happened to amendment No. 151, was it agreed?
An Leas-Chathaoirleach
It was withdrawn.
This amendment is in the name of Senator Ó Foighil.
An Leas-Chathaoirleach
This amendment has been discussed and may not be discussed again.
Am I allowed to make it in the absence of Senator Ó Foighil?
An Leas-Chathaoirleach
If you have his prior permission.
Amendment No. 164 not moved.
Section 176, as amended, agreed to.
First Schedule agreed to.
SECOND SCHEDULE.
An Leas-Chathaoirleach
Amendments Nos. 165 and 166 are alternatives and amendments Nos. 167 and 168 are alternatives. All are related and may be discussed together. I call on Senator Pól Ó Foigil to move his amendments.
Amendment No. 165 not moved.
I move amendment No. 166:
In page 102, line 21, to delete "or" and substitute "and".
Is this amendment being taken with amendments Nos. 167 and 168?
An Leas-Chathaoirleach
Amendment No. 166 is being taken with amendments Nos. 165, 167 and 168.
Amendment No. 166 has been tabled to ensure that the register is as up-to-date as possible and that everybody who is entitled to have their name on the register would have their name on it and be entitled to vote.
Amendment Nos. 166 and 168 proposes to make it obligatory on the registration authority to make a house-to-house inquiry in every case and, in addition, to carry out other sufficient inquiry.
Under existing law, repeated in this rule, the registration authority has the discretion to determine the level of inquiry necessary in order to produce an accurate draft register. Obviously in deciding its approach a registration authority is guided by the circumstances existing in the area in question. A closely knit rural community will warrant a different approach to a rapidly developing urban area. In the case of the former, the field worker will, in many cases, already be familiar with the details of the persons resident in each household. Requiring him to call personally to each house to verify information which he already has would be clearly inappropriate. On the other hand, a rapidly expanding urban area with frequent shifts in population will require a check on each house each year to establish the names of eligible voters.
Making a house to house inquiry mandatory in all circumstances or requiring the registration authority to conduct further inquiries over and above the house to house inquiry would not be warranted. The house to house inquiry is the most thorough method of inquiry used in compiling the register. Putting an onus on a registration authority to go one step further, at a time when its resources are already stretched and where time is of the essence, would not be justified. However, Senators can rest assured that following a house to house inquiry a registration authority carries out any additional checking if they feel that this is necessary based on the information received.
I am satisfied that the rule, as drafted, strikes the correct balance in that it gives the registration authority flexibility in its approach to different conditions within its area. To accept the amendments would unduly tie the hands of the registration authority, would stretch the resources of the registration authority at a time when they are already under pressure, would increase expenditure substantially and would not necessarily lead to any greater accuracy in the register.
I ask the Senator not to press the amendments.
Amendment, by leave, withdrawn.
Amendments Nos. 167 and 168 not moved.
I move amendment No. 169:
In page 102, line 46, after "declaration" to insert "or certificate".
This is a minor amendment. The provisions of the Bill provide for the payment of fees where somebody has to make a declaration in relation to various aspects of this Bill. It may also be necessary for somebody to obtain a certificate to satisfy the various agencies in relation to some item which is in dispute, and we are suggesting that provisions should be made for the reimbursement of the cost of the certificate if it is deemed necessary to obtain a certificate.
Amendment No. 169 proposes that fees payable in connection with certificates produced under this article shall also be paid by the registration authority. The certificates involved are a certificate of birth or a certificate of naturalisation.
The provision as drafted repeats existing law. Quite rightly and logically, the provision distinguishes between a certificate and a statutory declaration. Any certificate required to be produced would be inspected and returned and could be used for a variety of purposes other than registration as an elector. A statutory declaration, on the other hand, would be made specifically at the request of the registration authority for purposes related only to the registration of electors. It seems appropriate that the registration authority should meet any fee payable in this particular situation.
A certificate of birth would be called for only where there is doubt as to the precise date on which a person reaches the minimum age for registration. It is reasonable to expect that a person of voting age will already have obtained a birth certificate for some reasons, such as examinations, college admission or employment, and will already have one in his possession. At any rate, the short version of this document would be sufficient for registration purposes and the fee payable would be quite modest. It is envisaged that, following inspection, the birth certificate would be returned and could be used for a variety of other purposes.
In the case of a certificate of naturalisation, we are talking about a person who was not born an Irish citizen and who intimates to the registration authority that he has acquired citizenship through naturalisation. In such a case the person will already have secured the certificate. There is no question of his having to pay a fee to secure such a certificate specially for the registation authority. In case the original certificate of naturalisation is not available for any reason, it is understood that the Department of Justice will, without charge, issue a letter certifying that a certification of naturalisation has been issued and is in force in relation to the person concerned.
In the case of a statutory declaration of the types referred to in this article, a request for the production of such a document by the registration authority will oblige the person to have a declaration made and witnessed, possibly involving the payment of fee. In such a case I feel it is reasonable that the registration authority should pay the cost involved.
In view of the different circumstances pertaining in relation to the two different categories of documents covered by this rule, I hope the Senators will see fit to withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 170:
In page 103, between lines 10 and 11 to insert the following new paragraph:
"(7) The registration authority shall not exclude from the draft register a person who is registered on the register in force at the time, without giving prior notice to that person."
I believe there is a 5 per cent turnover in physiological terms in every register, a relatively small proportion. The names of a number of people are excluded from the register for reasons they do not understand. That creates many difficulties and if they were alerted to the fact that their names were being withdrawn from the register, that would be useful because they could protect themselves and ensure that they were entitled to vote.
I support the amendment. Having changed residence at one time I had the experience of being removed from the register and not being aware of it until polling day. There should be a system of notification. It is a simple matter and would not involve a major cost on the Exchequer. I support the amendment as a practical step.
We had some criticism this afternoon about amendments being frivolous and in that tone I have certain difficulties with this amendment. I wonder how we are to notify people who are dead.
I thought the graveyard vote was very important in elections in this country.
An Leas-Chathaoirleach
Some people say they are the easiest votes to get.
That is not what is in dispute; what is in dispute is whether you can connect with those people in a physical sense. The point is a reasonable one. During the referendum I met people who were on the register and did not move house but then found they were not on the current register. I wonder how that can happen. It would seem reasonable to have some procedure to prevent that happening in the future.
We had the curious situation where all but one of the parish clergy in my parish were excluded from the register. I would not begin to speculate how they might have voted in the referendum, but it seems curious that people who are on the register and do not move house find they are not on the current register when they go to vote.
This is a worthwhile amendment. Earlier we had a great deal of discussion about the compilation of the register, etc. Bearing in mind that people must be living to be notified, the amendment is worthwhile and I hope the Minister will consider it. I think the problem arises because people are not aware how the register is compiled. I understand that first there is a draft register. You start with a blank sheet and include only those who are still living at the same address. The general public are understandably of the view that if you have been on the register for 20 years there is no reason you should be left off in the 21st year. They do not understand that once the local authority, whose job it is to compile that register, have gone through the various stages and processes which they are required under law to do, if they cannot locate you at that stage they will take you off the register, although there is usually some latitude allowed. If the amendment could be slightly reworded by the Minister and if what is intended by it were put into operation it would serve a very useful function. I hope the Minister will take it on board.
I agree with Senator Hederman. This is a very good amendment. I would like clarification because I know that in Kerry County Council, the authority for the Kerry region, the enumerators are very slow to take anybody off the register. Before the revision court, they compile a list and people are notified if it is proposed to delete their name. Does that satisfy Senator Upton?
This amendment proposes to insert in article 5 of the Second Schedule a new provision requiring a registration authority to notify any person whose name it proposes to exclude from the draft register, that is, any person whose name is included in the current register and not in the draft register. I take the point that in a small number of cases where a name is inadvertently dropped notification along the lines proposed in this amendment would alert them to the fact that they could make a claim for correction to the draft register.
The categories of electors whose names are not included in the draft register are persons who died or moved house or who were not, for some reason, entitled to be registered in the first place. It would obviously be inappropriate and insensitive to address a communication to a person who died recently. In case of persons who have changed address, it would not serve much purpose to write to them at their old address. It is unlikely that their new address would be known to the registration authority.
There is a further consideration that the number of changes that occur in the register in any year, particularly in city areas, is very high. Most of these changes are made following a visit to each household by the enumerator or by the completion of a registration form in respect of the household. Notification to each person whose name is being removed would seem unnecessary in these circumstances. The procedure for making claims for correction in the draft register is in place to enable any person inadvertently excluded from the register to get on the final register.
My Department arrange publicity each year to drawn the public's attention to the need to check the draft register to ensure they are registered. This is in addition to the publicity arranged locally by registration authorities. I feel that the inclusion of this provision in article 5 is unnecessary and undesirable. It would add substantially to the workload of the registration authority at a time when they are already under severe pressure. The additional work would be largely unfruitful and would contribute little to the accuracy of the register. I suggest the amendment be withdrawn.
I wonder should the amount of money being spent on advertisements advising people to go to the local post office or Garda station to check the draft register, which amount must be reasonably substantial, be spent on writing to people alerting them of the fact that they are not on the register. For those who have a permanent address they would be alerted, but for those whio have not a permanent address I accept the Minister's point. I really do not think there is anything practical that can be done about it. Given the responses that you meet on the doorsteps and given the number of people who find themselves deleted from the register — people such as those Senator Dardis has alluded to — I wonder if the advertising which goes on at present is of any great use at all?
I support the sentiments expressed in this amendment. It is a system that we have introduced in my county, Roscommon. If somebody is being removed from the register they must be notified and they must be notified 21 clear days before the revision court. I was surprised at the Minister's response. This matter was discussed on Second Stage for quite some time. It is only right and proper that people should not be removed from the register without being notified. I am not talking about sending letters to deceased people. When the people who are checking the register send in their note to have somebody removed they will just put "RIP" in after the name. There is no point in sending a letter in such a case, but a considerable number of people are removed each time the register is done, either by clerical error or for some other reason. All of us have come across people who perhaps have been resident in an area for 50 or 60 years and the next thing is that the whole family, or four or five of them, are removed from the register. We are told it is clerical error, and I accept that, but if this provision was inserted that everybody other than those who are deceased got a notification and if they had gone from the area and did not reply within the 21 days before the revision court, then they were taken off the register automatically. It is an excellent provision. It operates in Kerry and it is operating now in Roscommon.
I want to support the sentiments expressed by Senator Naughten. It would cover the point made by Senator Upton. I will just refer to Kerry. The list is compiled in Kerry and each political party get a copy as well as each Independent member of the local authorities in that county. I say to the Minister that if he could suggest in the form of his advertising that each local authority would take this on board — Senator Naughten has referred to Roscommon and we in Kerry find it most efficient — it would help to reduce substantially the number of errors in the register.
I have just one further point to add to what Senator Foley and Senator Naughten have said. In many ways I would think it is more relevant and more appropriate in Dublin than in Kerry or Roscommon, where people know one another a good deal better, particularly in the flatland areas of Dublin.
It is Senator Upton's amendment, but I think it makes great sense.
May I ask the Minister if he would consider the amendment for Report Stage? I do not want to press it or have a vote at this hour of the evening, but I ask him to consider the thinking behind the amendment and see if anything can be done in the context of the resources available.
I am not prepared to make it mandatory on registration authorities to send out letters, but I will convey what is in operation in Roscommon and Kerry to the other registration authorities around the country.
I think it is an eminently sensible proposal. In a time of computerised addressing and so forth it probably is comparatively simple to draw up a computer programme which would automatically convey to people that their names have been removed from the register. It is most frustrating for a person who wants to vote to find that for some clerical error they are off the register and cannot actually vote. The amendment has all party support. The technicalities can be worked out without any great difficulty. I urge the Minister to come back to this on Report Stage with a positive answer.
I would like to say to the Minister that the amendment has this other advantage. Particularly in constituencies in the west from where people have moved to the urban areas of Dublin, Galway, Cork or wherever, if they get a note saying their name is being deleted because they have been gone from that particular address for two or three years, they have the opportunity of being registered elsewhere. It is amazing the number of people who move from rural Ireland to Dublin, Galway, Cork or wherever but who come back home to vote. They have no real interest in getting registered in Dublin. If they get a note 21 days before the revision court saying "Your name is being removed from the register because you are no longer qualified to be registered here", the chances are that they will register elsewhere.
It is an excellent practice, but there is one difficulty with it. For example, if you want to update your register and you remove somebody who has been three years out of the area, unless their names are given to the returning officer 21 days before the revision court they will be on the register for the next year. That is a disadvantage. On balance, however, the amendment is worthwhile. It gives you a real live register and ensures that anybdy who has been removed was removed for a very valid reason.
In fairness to returning officers, they do accept lists later than 21 days.
If we could get the principle accepted we would all be very happy.
I repeat that a statutory obligation by letter is not the line I am pursuing. Under the Bill the supplementary register will come into operation. Just because you sent out a letter does not mean you will resolve all the problems, because in many cases the people who have moved will never receive the letter. Equally, in the case of people who have died, is there much point sending a letter to an individual who is not there? I am not saying that in any offensive way. I accept the sentiment of what the Senators are saying. I believe this is very effective in some areas and I will bring to the notice of the authorities concerned in other parts of the country how efficient they are in Roscommon and Kerry.
Amendment, by leave, withdrawn.
Amendment No. 171 not moved.
Government amendment No. 172:
In page 107, lines 1 to 51 and in page 108, lines 1 to 4, to delete Part II and substitute the following:
"PART II
Supplement to the Register of Electors
15.—(1) On receipt of an application to be entered in the supplement to the register of electors under section 15, the registration authority shall make such inquiries as they think fit for the purpose of considering such application, and the provisions of paragraphs (3), (4) and (5) of Rule 5 shall apply in relation to the consideration of such application.
(2) The registration authority shall, as soon as practicable, consider and rule on the application and shall notify the applicant of the ruling and, where the application is refused, of his right to appeal against the ruling to the county registrar.
16.—In case the application for entry in the supplement to the register is refused, an appeal, in writing, may be made to the county registrar against the ruling of the registration authority.
17.—(1) The county registrar shall consider and rule on an appeal made to him under Rule 16 and shall notify the registration authority of the ruling and the registration authority shall send notice in writing of the ruling to the applicant and shall take such steps as may be necessary to give effect to the ruling.
(2) (a) Before ruling on an appeal made to him under Rule 16 the county registrar may make such further inquiry as he may consider necessary and may require any person to give any information in his possession which the county registrar considers necessary for the purpose of his duties under this Rule.
(b) The provision of paragraphs (4) and (5) of Rule 8 shall apply to the consideration of an appeal under this Part by the county registrar.
18.—(1) As soon as may be after the twelfth day (disregarding any excluded day) before polling day at an election or a referendum, the registration authority shall prepare and publish a list of the names of persons (if any) whose applications to be entered in the supplement to the register were received on or before said twelfth day (disregarding any excluded day) before polling day and allowed by the registration authority, or on appeal by the county registrar.
(2) The list prepared under paragraph (1) shall form the supplement to the register.
(3) The supplement to the register shall be in such form as may be directed by the Minister.".
Amendment agreed to.
Question proposed: "That the Second Schedule, as amended, be the Second Schedule to the Bill."
I wanted to ask the Minister a question on rule 6 (1) of the Second Schedule concerning those who should receive the draft register. I am intrigued to notice that the draft register must be sent to various people: to the Minister, the county registrar and each postmaster; for a European Parliament constituency it must be sent to each representative in the European Parliament for that constituency; for a Dáil constituency, to each Member of the Dáil for that constituency and each Member of the Seanad residing in that constituency. I am intrigued why a Member of the Seanad residing in that constituency should get a copy of the register were it not for the fact that, perhaps, that Seanad Member was interested in the Dáil constituency so that he or she might contest that election next time around. If that is the answer the Minister is going to give me I deplore that, because I do not think it is right they should be facilitated that way.
Why are local authority members who clearly signified their interest in running for either the Seanad or the Dáil, not entitled to receive a copy of the register for the Dáil constituency? Perhaps the Minister could clarify that for me, please?
Councillors get the register for the local area they represent and I think that is fair enough. Senators also perform a function and the registers are of assistance to them. There is no reason other than that they represent a particular area in a city or county and they get the registers for those areas.
I would like to refer briefly to the table set out in rule 1 of the Second Schedule specifying dates for the various stages in preparing the register. The Seanad will recall that, in relation to section 18, Senator Naughten moved amendment No. 30, which proposed that there should be a supplement to the special voters list to accommodate persons who apply for inclusion in the list during the lifetime of the register. The amendment was proposed on the grounds that a supplement to the special voters list was not an appropriate vehicle for this purpose. I think that, the Senator's basic point was a sound one and that more time should be allowed for disabled persons to get on the special voters list. I would therefore suggest that on Report Stage the House might consider extending the period allowed for this purpose by about two months. This could be done by changing the date specified at item 4 of the table from 30 September to, perhaps, a date towards the end of November. I propose to have an amendment to this effect put down.
May I come back on this point? I understand the Minister's supporting argument is that, in relation to the draft register, these other members will be able to assist in the compilation of the register and making sure it is as up to date and as accurate as possible. Is there any reason TDs, Senators or members of local authorities would not be able to make sure that the European Parliament constituency is tickety boo and the same in the case of a Dáil constituency.
On a point of order, a Chathaoirligh, a word was used there that I am not sure is in any of the dictionaries I know. Perhaps the Senator would explain that word.
Everyone here knows it means neat and tidy. It is self-descriptive — all the knots are tied, the "t"s are crossed, the "i"s dotted, etc.
As a member of a local authority I would be in a very good position, being close to the ground, to ensure the accuracy of the register. Members of local authorities boast that they are nearest the ground, and surely they would be able to assist, if that is what the Minister wants, in ensuring that the register for the Dáil constituency is in order and so on. If that is the Minister's reason, I must urge him at all costs to make available to the members of the local authority the register for the Dáil constituency, etc; I need not repeat the various levels.
I welcome the Minister adopting the principle of the amendment I put down. It will undoubtedly contribute to improving the special voters register and I welcome the Minister taking the principle on board.
In response to Senator Hederman, I am at a loss to know why she is pursuing the line that registers should be given to local councillors. My experience is that councillors at local level are interested in their own area, their own patch, and they promote themselves there. Giving them registers for the whole constituency would not be very relevant. I would like to take this opportunity to pay a tribute to Senators. They are leaders of the community and, from time to time, have information to give concerning all their constituencies. For that reason registers are important to them. There is a clear distinction, which I hope I have clarified.
I do not know the way things are in the constituency for which the Minister has been elected on so many occasions, but you can take it either way. The councillor who may be, as the Minister described, only interested in his or her own patch will have an indepth knowledge of that patch and will know if there has been a death or a bereavement or if somebody has gone away and they will be in a unique position to help by passing on that information. There are many councillors who are interested in more than their own patch and they would have a very good knowledge of the whole of their constituency because they might, unlike me, be thinking of running for the Seanad or the Dáil or the European elections and they keep themselves abreast of the general situation in the constituency.
I would ask the Minister, in the interest of being consistent, to either cut out everybody and as in the case of the European Parliament elections to send it only to the representatives of the European Parliament for that constituency. If that is the line the Minister wants to take, may I urge him to do the same for a Dáil constituency: to send it only to the Members of the Dáil constituency, and the same for the local authorities? Alternatively, he could do it the other way around and send the European Parliament constituency draft register to the local councillor, to the European Parliament Member, to the Dáil Member, etc. I do not need to spell it out. The point I am trying to make is fairly clear. Whichever way the Minister does it, if he is consistent I will be very happy.
First, in relation to what Senator Hederman said about local councillors being interested in running for the Dáil, nobody can get registered on the basis that they might be interested some time in the future — in other words, on the basis of an intention — because if that was the way criterion for giving out the registers, you would have to give them to anybody, be they a councillor or not, who had an intention of doing something in the future. That obviously would be ridiculous. I think it is reasonable that you give them to the local councillors for their local constituency and to the Dáil Members for the Dáil constituency.
The only matter that remains to be decided is, as public representatives, as Baill an Oireachthais, what do the Senators get? As Members of Parliament, we have to choose between giving them the register for the constituency in which they reside, as proposed; or the alternative to give University Senators the register of university electors and give the rest of us the register for the whole Twenty-six Counties.
I find myself in agreement with Senators Ó Cuív and Hederman on this point. A little commonsense can sort this out. We are all concerned that the register is as up to date as is possible. In the case of Senators, legally we all represent the entire State; perhaps some of us do — Senator Hederman, Senator Ross, those of us who are in far flung fields and so forth, but the reality is that we all live in constituencies. There is no great difficulty about the register for the particular constituency in which we reside supplied to us, and if we need to get further information we get it.
On the question of councillors, I am in agreement with Senator Hederman. I think councillors play a very important role — we all agree with that — in local democracy and it would not be a huge extension to ensure that, within a Dáil constituency, the councillors are supplied with the register for the entire constituency.
This is a small point and it would be a gesture, from this House especially, on the value we place on the work of councillors.
Is the Minister going to take it on hand?
Yes.
Thank you, Minister.
Question put and agreed to.
THIRD SCHEDULE.
I move amendment No. 173:
In page 110, line 25 to delete "Where" and substitute "Without prejudice to section 132 (4), where".
This is a drafting amendment. It simply seeks to make clear that this provision is wider than simply being restricted to the Director of Public Prosecutions. I hope the Minister will accept the amendment.
I am accepting the amendment.
Amendment agreed to.
I move amendment No. 174:
In page 114, lines 51 to 55, to delete paragraph 14.
This paragraph puzzles me, because it appears that while an election petition is going on, the vacancy for the Dáil cannot be filled, even if the subject of the petition has died or has resigned. I am at a loss to know what useful purpose is served by keeping the vacancy open, particularly where the Dáil Member would have died.
I would like to remind the House that section 132 (7) provides that if a petition questioning a Dáil election is not dismissed by the High Court, the court shall, in determining the matter at issue, include in its order a declaration of the correct result of the election. If it is unable to ascertain the correct result, the court shall declare that the election or a specified part of it was void. The court may rule that a candidate declared elected at the original election was not in fact duly elected. It may include a ruling that one of the unsuccessful candidates should have been declared elected in this person's place.
Thus if a person whose election is questioned dies or resigns while the petition is pending or proceeding, he may leave no consequential vacancy in the Dáil. Having tried the petition, the High Court may decide that the person concerned was not validly elected and that the seat should have been awarded to another named candidate. The latter candidate would be entitled to assume the Dáil seat on foot of the court's decision. In these circumstances the holding of a by-election would be inappropriate. Rule 14, which provides for this situation, should therefore be retained.
Amendment, by leave, withdrawn.
I move amendment No. 175:
In page 116, line 15, to delete "may" and substitute "shall".
This amendment seeks to ensure that this section is in accord with standard practice. There is a pecking order in relation to the courts. When something is being considered by a higher court, as I understant it, the lower court simply adjourns it and desists from further consideration of the matter. This amendment would simply be in accord with that standard procedure.
The objective of the rule as drafted is to give the High Court the discretion whether all or part of the trial of the petition can proceed while the Supreme Court is considering the point of law raised. At this stage we simply cannot speculate on the nature of any point of law which may be raised in the course of any future election petition.
The point raised may be central to the whole issue and thus require the suspension of all action on the trial of the petition until the point of law is determined; or it may be relatively peripheral in nature, which would allow the trial to proceed up to but not including the High Court decision. While action on the trial generally may be suspended, the court may consider it appropriate to take or continue with the taking of the evidence of a particular witness or witnesses. There are decisions proper to be taken by the High Court in the light of the particular circumstances existing.
It would be wrong and foolish of the legislation to tie the hands of the High Court in the manner proposed in the amendment. The only limitation that should be laid down is the one proposed in the Bill, namely, that the High Court must not determine the petition until the Supreme Court has ruled on the question of law referred to it. I suggest the amendment be withdrawn.
Amendment, by leave, withdrawn.
Third Schedule, as amended, agreed to.
FOURTH SCHEDULE.
I move amendment No. 176:
In page 119, to delete lines 16 to 29 and substitute the following:
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Marcáil ord do rogha sna spáis seo thíos. |
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Mark order of preference in spaces below. |
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DOYLE — LIBERAL SOCIALISTS |
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(MARY DOYLE, of 10 High Street, Knockmore, Builder.) |
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LYNCH — URBAN PARTY |
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(JANE ELLEN LYNCH, of 12 Main Street, Ardstown, Grocer.) |
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NI BHRIAIN — CUMANN NA SAORÁNACH |
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(BLANAID NI BHRIAIN, as 10 An tStráid Ard, Carn Mór, Oide Scoile.) |
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O'BRIEN — NON PARTY |
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(ORLA O'BRIEN, of 22 Wellclose Place, Knockbeg, Barrister.) |
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O'BRIEN — YOUNG IRELAND |
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(ORLA O'BRIEN, of 103 Eaton Brae, Cahermore, Solicitor.) |
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O'CONNOR — NATIONAL LEAGUE |
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(DARINA O'CONNOR, of 7 Green Street, Carnmore, Engineer.) |
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THOMPSON — RURAL PARTY |
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(WILLIAM H. THOMPSON, of Dereen Park, Ballyglass, Farmer.) |
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TREORACHA |
INSTRUCTIONS |
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I. Scriobh an figiúr 1 le hais ainm an chéad iarrthóra is rogha leat, an figiúr 2 le hais do dhara rogha (más ann), agus mar sin de. |
I. Write 1 beside the name of the candidate of your first choice, 2 beside your second choice (if any), and so on. |
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II. Fill an páipéar ionas nach bhfeicfear do vóta. Taispeáin cúl an pháipéir don oifigeach ceannais, agus cuir sa bhosca ballóide é. |
II. Fold the paper to conceal your vote. Show the back of the paper to the presiding officer and put it in the ballot box. |
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III. Déan deimhin de go bhfuil an marc oifigiúl stampáilte ar do pháipéar. |
III. Check that your paper is stamped with the official mark. |
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IV. Má mhilleann tú do pháipéar de thaisme, tig leat a iarraidh ar an oifigeach ceannais ceann úr a eisiúint duit. |
IV. If you inadvertently spoil your paper you may request the presiding officer to issue a fresh one. |
(Back of Paper)
Election for Constituency of..............................................................................................
(Back of counterfoil)
Counterfoil No.................................................................................................................
There are a number of items in the changes which we have proposed here. First, we are suggesting that two further instructions be issued: instruction III, which advises people who are voting to check that their paper is stamped with the official mark, and instruction IV which advises them that if they inadvertently spoil their ballot paper they may request the presiding officer to issue a fresh one. Those are sensible suggestions and I cannot see them creating any difficulty. I hope therefore that the Minister would agree to their inclusion on the paper. I wonder how much of this material is read when people go in to cast their votes on election day. Nevertheless, I think it should be there as a precaution; anyone who is in any doubt may resort to reading it.
The second item of change is that we have deleted the number which is to be included on the back of the paper and which will identify the ballot paper. I will not go through all the arguments we had about the possibility that people's ballot papers could be identified arising from somebody noting or remembering the number, or a personating agent passing that information on, or a personating agent turning up at the count and being able to see the ballot paper.
The third item of difference relates to the names of the candidates. I suppose you could ask, what is in a name, but in the specimen ballot paper here of the eight names given seven are men's names. There is just one woman's name on the paper. Maybe this is a reflection of the way things are. That might be the rationale behind it. In the example we have given we have divided it four all.
I have just noticed a number of other anomalies not only in our amended list but also in the list prepared by the Minister. As I look down through the list of occupations of the various candidates, I am shocked and amazed not to find the occupation of publican listed for any of the candidates. That is totally out of accord with the present realities. They are one of the most important elements in Dál Éireann at least in terms of their numbers. They are on both sides of the House here and in large numbers in the other House.
What about teachers?
I was about to come to teachers.
What about lecturers?
There is an Oide Scoile. Just one of the eight candidates is described as Oide Scoile. That is out of proportion also. The business of lecturing is not at all confined to lecturers. Senator Mooney has excellent potential as a lecturer given the way he is breaking in on the debate here.
He prefers a captive audience on a Sunday that cannot answer back.
I think it would be appropriate to change the names to achieve a balance between males and females. The additional instructions would be of some use to the element of the population that would read them and it is worth putting them in for that reason.
We are concerned about the number on the ballot paper but I will not go through the arguments which I have made already. Some of the other points, I must confess, I have made in a lighter vein. If we are to be in accord with what usually happens then, certainly, the publican element would like to be represented on the draft ballot paper.
I feel very strongly about elements of this proposed draft ballot paper. I am not going to refer to the points made by Senator Upton other than to say that if he wants this ballot paper to reflect what happens, what might happen or what should happen in an election, he is quite right to bring in these amendments.
I have a much stronger objection to the ballot paper as is seen here in that nowhere does it leave a blank space after the name. After each name reads Liberal Socialist, Urban Party, Cumann na Saoránach, Young Ireland, National League or Rural Party. The Minister knows how strongly I feel about the fact that one should be allowed to be called Independent. I do not know whether the Cathaoirleach will allow me any latitude to go back over some of the excellent points which were made in that regard.
We have had a long discussion and we do not want repetition on that matter.
In that case I will confine my remarks to noting that nowhere on this draft ballot paper is there a gap after the name. The Minister is proposing here, apparently, that everybody will have some party definition after their name or the term Non-Party. I take great exception to that. More and more Independents will be running in the future. I am quite sure about that. They are going to have to describe themselves as Non-Party if they want to have any description. I know the Minister is prepared to allow them to be nothing or a negative quantity——
The Senator is moving away from the Schedule now.
What I am worried about is that according to Senator Upton's contribution, it appears as though this ballot paper is to reflect what is likely to happen or what might happen. In that context my point is a reasonable one.
Senator Upton also mentioned the occupation listed. I do not think we should put around as an example of the ideal that we should have — farmer, engineer, solicitor, barrister, grocer, builder, Oide Scoile or whatever it may be. What about putting in students, unemployed, community worker, porter or nurse? The occupations listed are all fairly upmarket. Builders are well known to make plenty of money and grocers are usually a prosperous group of people. That is a very unhealthy selection of occupations and I would like it to be changed.
I support Senator Upton's proposal that there should be instructions to voters to check that their papers are stamped with the official mark and if they have spoiled their ballot papers they may request the presiding officer to issue a new one. Of course, I need hardly say I wholeheartedly support the suggestion that the list should contain four females and four males.
On the Schedule, I notice that a name in Irish such as Ó Briain is under "O" rather than under "B". There was a court case which I took and it was agreed that they should be listed under the surname proper and in that case it would be under "B". The surname in the Irish language is variable according to marital status, etc. As this is only a sample ballot paper, does it have any legal effect on that court case?
In response to Senator Ó Cuív, that would be a matter for the returning officer.
The Fourth Schedule specifies various forms to be used in connection with a Dáil election including the form of ballot paper. Part II contains the specified form of ballot paper. It is, in effect, a specimen paper designed to assist returning officers in drawing up a ballot paper in pursuance of the directions contained in section 88. The specimen paper contains a number of fictitious names and addresses, refers to certain fictional political parties and sets out the instructions for voting as they would appear on a genuine ballot paper. The specimen paper is intended as an illustration for returning officers on how the directions in section 88 should be implemented.
Amendment No. 176 proposes to substitute a revised form of ballot paper for that set out in the Fourth Schedule. The only change of substance in the form proposed in the amendment is that there is an increase in the number of female names among the fictious candidates. I would like to explain that the form of ballot paper provided for in the Fourth Schedule is a restatement of the basic form prescribed in the Electoral Act, 1963.
I take the point that the form of ballot paper as drafted does not represent an even spread of candidates of both sexes. If the Senators are prepared to withdraw the amendment, I will consider the matter for Report Stage. In this context I would think a form of ballot paper with an equal number of candidates of each sex might strike the correct balance.
I also propose to act on Senator Hederman's suggestion that the sample ballot paper should include an example in which a non-aligned candidate chooses to leave the relevant space blank rather than use the expression "Non-Party".
I thank the Minister. I realise we are running out of time. May I ask the Minister when he is considering the matter if he would consider, also, the occupation of the candidates?
Yes.
Amendment, by leave, withdrawn.
Fourth Schedule agreed to.
Question proposed: "That the Title be the Title to the Bill."
I would like to mention the need for a technical amendment of the long Title, the reference in line 10, page 11, to the collective citation of the Referendum Acts requires to be changed to take account of the enactment of the Referendum (Amendment) Act, 1992. For the same reason, an amendment will be necessary to section 1 (4) which provides for the collective citation of the Referendum Acts. I propose to have appropriate amendments to the long Title and the subsection drafted for Report Stage to take account of the new collective citation of these Acts.
Question put and agreed to.
Bill reported with amendments.
Report Stage ordered for Thursday, 2 July 1992.
I would like to thank the Minister for his courtesy and consideration over 11 days and also for his perseverence and that of his staff here. I would also like to thank the Senators on both sides of the House——
We have not concluded yet. We still have another session.
While it is not normal at this stage——
I am sure it is not the normal procedure; we would prefer to express our thanks on Thursday.
I would like to endorse the sentiments expressed by Senator Fitzgerald. The Minister has been very helpful and I sincerely hope that on Report Stage, he will take on board the points made by the Members here on. The Minister agreed to review certain areas.
I think it appropriate at this stage to thank the Minister for his diligence. He has stayed in the House for an extended period and attended to this legislation at this stage of its passage through the House. It also would be appropriate to congratulate Senator Upton on his diligence as well.
I would like to thank the Minister for his courtesy and fore-bearance during the debate here. He remained courteous and pleasant and that is to his credit. I must say I appreciate it. I would also like to congratulate him on his stamina.
May I be associated with those remarks. I would like to thank the Minister for his patience and courtesy at all times and for his commitment and determination to stick with those parts of the Act which he felt were right. Obviously, on the next Stage we hope we will have agreement on some of the changes that have to be made.
Will the Acting Leader say when it is proposed to sit again?
It is proposed to sit at 10.30 a.m. tomorrow.
I understand the Acting Leader has some comment to make regarding the Adjournment.
Will the House agree to take the Adjournment Matter now as the Senator involved is here and the Minister for the Environment is standing by also?
Is the House agreed on that? Agreed.