I did not realise the Labour Party was so sensitive to criticism. They are pretty good at dishing it out.
The Bill does more than revisit and up-date the existing electoral code. It is also forward looking legislation which could have a profound effect on the way in which elections are held. In December of last year I approved the appointment of a Dutch/UK company, Nedap/Powervote, to deliver an electronic solution for the current manual voting and vote counting arrangements. The Bill will provide the statutory basis for the use of voting machines and electronic vote counting at elections. It will provide for the inclusion of photographs, first used at European elections in 1999, and political party emblems on ballot papers and will include provision for earlier opening of polling stations. It will also allow poll workers working outside the constituency or local electoral area where they are registered to vote.
Senators will find details of the individual sections in the explanatory memorandum. I will now deal with the main elements of the Bill which contain 57 sections set out in four parts.
Sections 1 and 2 are standard provisions dealing with citations, construction, commencement and interpretation. Subsection (9) of section 1 provides for the Minister to make orders for the commencement of the Act. This subsection is required because some of the Bill's provisions, especially in relation to the register of electors, require a lead in time to become effective. It is my intention that all of the Bill's provisions will be commenced as early as possible.
Part 2 of the Bill amends the Electoral Act, 1992, which is the principal Act providing for the registration of electors and political parties, the conduct of elections to Dáil Éireann and the arrangements and rules for the counting of votes. Sections 3 to 34 make a series of amendments to the code ranging from relatively minor technical adjustments to a number of new provisions.
Sections 3, 4, 32 and 34 introduce the first major change in relation to the register of electors providing electors with the opportunity to decide whether or not they wish their names and addresses to be used for a purpose other than an electoral or other statutory use. The edited register will exclude the names and addresses of electors who indicate that they do not want this information used for commercial purposes. Registration authorities will have three years to contact all electors on the register before the pub lication of an edited register is mandatory. If a registration authority is in a position to publish an edited register before the expiration of the three years it may do so. Commercial use of registration information excluded from the edited register will be an offence under section 32.
Why produce an edited register? The register of electors is a public document and is not covered by the data protection legislation. However, once it passes outside the hands of the registration authority and is held on computer the person concerned may have to register with the Data Protection Commissioner. If public representatives add personal data in relation to racial origin, political opinion or religious or other beliefs to a copy of the register they would be required to register with the Data Protection Commissioner. The register can be bought by anybody and modern technology allows personal information in the register to be more easily processed than previously.
Anecdotal evidence available from complaints suggests that the sale of the register for commercial purposes may act to discourage some individuals from registering. In addition there is an emphasis in data protection legislation that persons should be able to withhold their consent to the use of personal data for a purpose other than that for which it is collected.
In providing for this matter the choice had to be made whether to make it illegal to use the data in the register of electors other than for electoral or other statutory purpose or else seek to make it available subject to the consent of the elector. The Government has opted for the latter course in which electors are able to register their wish to restrict the availability of their personal details at the point of data collection. If it is found that most people do not wish to be included in the edited register or there is no demand for such a register then its discontinuance will be considered in future legislation. It is a matter I will keep under review. Section 55 provides for similar provisions for the Seanad university electoral register.
Section 4 also provides an enabling power to create a national register of electors which may be required in the future for further developing electronic, Internet or telephone voting and which will facilitate the on-line updating of the different individual registers of electors countrywide. There is also a provision that the preparation and maintenance of the register of electors can be assigned by order of the Minister to a body other than a registration authority. This would enable other organisations besides registration authorities to be involved in this process. There have been complaints over the years about the accuracy of the register and perhaps other bodies could bring new ideas on how to improve matters. Such a ministerial order would have to be approved in draft by both Houses of the Oireachtas.
Section 6 includes two important and worthwhile changes. The first provides that a person who is on a register of electors and moves residence from one constituency to another or from one local electoral area to another can apply for entry to the supplement at their new address. This is subject to their authorising of the registration authority to delete their name from the register of electors for the area in which they are registered.
This is a measure which I am sure all Members will welcome as particular annoyance is expressed at elections and referendums by people who are on the register but have moved residence to another constituency or local electoral area. Under current law such persons cannot vote in their new constituency and must travel to their old constituency, with the associated cost and inconvenience, to vote for candidates who do not represent their new area.
Section 6 also provides that persons who reach 18 years of age between the date the register of electors is published and polling day will be eligible for entry on to the supplement to the register. The proposed amendment is intended to clarify the position that a person who becomes 18 years old on or before polling day, including the period after the cut off date for applying to get on the supplement, can apply on or before the cut off date for entry on the supplement for the poll in question.
Section 10 replaces and extends section 16 of the Electoral Act, 1992, to provide that electors lists can be compiled in place of the draft register, register and supplement to the register. The use of lists would provide an opportunity to have a rolling register where it would be possible to add and delete names throughout the year. While the current supplement facility provides for additions, electors' lists could be a more efficient way to keep the register up to date. It would be an interesting exercise to try out electors' lists again using current technology. Following enactment of the Bill, I intend to consult with one or more registration authorities concerning the use of electors' lists. It is envisaged that the use of lists would be introduced on a limited basis, initially as a pilot scheme which could be reviewed in light of the experience gained.
Section 11 provides for a comprehensive revision of section 25 of the Electoral Act, 1992, concerning the preparation and maintenance of the register of political parties. Most of the amendments have been sought by the registrar to assist him in carrying out his functions as registrar and to provide for the registration of political party emblems. A review of the conditions for registration are also necessary as registration now covers more than just putting the name of a political party on ballot papers. Registered political parties are entitled to State funding for the administration of the parties if they obtain not less than 2% of first preference votes at a general election. The parties have certain disclosure and other obligations under the Electoral Act, 1997, and have certain rights under the Referendum Acts as regards "approved body" recognition.
The main changes proposed in section 11 to section 25 of the Electoral Act, 1992, are: the introduction of criteria which new parties will be required to meet in order to be registered; a party can register an abbreviation, acronym or party emblem; the name of a party cannot exceed six words; a party can apply to amend its name in the register; and an application for registration and amendment of entry in the register will not be effective if the final decision is not given before the movement of the writ or the making of a polling day order.
Sections 12 and 13 devolve power in relation to polling schemes to local authorities. A polling scheme divides a county or county borough into polling districts and appoints a polling place for each polling district for the purpose of holding elections. Under current arrangements, the Minister confirms or otherwise a polling scheme prepared by a local authority and submitted to him. However, this is a function which should be determined locally, where the detailed local knowledge resides, rather than centrally in the Department.
Section 15 is a small but important clarification that a person who reaches 21 years on or before polling day is eligible for nomination for election. The current legislation does not specify the precise date by which a person must reach the age of 21 years. It is desirable to clarify the matter, as a doubt in one case ended up in the High Court.
Sections 16, 18, 19, 20, 21 and 23 provide for the inclusion of photographs and political party emblems on ballot papers and related matters. Photographic ballot papers were used for the first time in the June 1999 European elections to give voters additional information to assist them in making their choice. It was also anticipated that the measure would be of assistance to those with low levels of literacy. To assist in the assessment of the use of photographs, I commissioned Lansdowne Market Research to carry out research into the European election experience. The results of its research appeared to confirm anecdotal evidence at the time of the elections and since that people are generally well disposed towards the use of photographs. The survey results revealed that the attitude to their future use was overwhelmingly positive and there was also a fairly strong belief that photographs were of assistance to electors in casting their vote. Likewise, the feedback from people with literacy problems was positive. The Lansdowne report, however, cautioned that the use of photographs could introduce a bias in favour of candidate-centred criteria and I have decided, therefore, to include party emblems as a counterbalance to candidate photographs.
Section 17 removes an anomaly in relation to the recoupment of deposits and election expenses. At present, an unsuccessful candidate at a Dáil by-election can qualify for the recoupment of his or her election expenses up to £5,000 based on a quarter of what would have been the quota in the constituency had the by-election been a general election. At the same by-election, however, a candidate may not qualify for a refund of their deposit of £300 as this is based on obtaining a quarter of the quota at a by-election. Section 17 will apply the same conditions to both the return of a deposit and the recoupment of expenses to a candidate in a Dáil by-election. Similar amendments are repeated in sections 29, 30 and 31 dealing with the count rules which include provisions for the transfer of votes if it would enable a candidate to qualify for a refund of his or her deposit.
Sections 24 and 26 provide that persons who are unable to read or write to the extent of not being able to vote can have a companion vote for them – at present this facility is confined to electors with physical or sight disabilities. Its extension to persons with literacy problems is justified and will complement the use of photographs and party emblems on ballot papers which will also be of assistance to such electors.
The proposed change in section 25 is in response to a considerable number of representations I received to the effect that polling day staff who are registered voters in a constituency other than the one in which they are employed are unable to vote. Section 25 will allow such persons to vote by post provided they are included in the supplement to the postal voter's list.
Section 28 is concerned with the secrecy of the ballot, particularly on islands where there are a small number of voters but also in other areas where there is a small turnout. This section provides that ballot boxes with 50 or less ballot papers should be opened in view of the public, including tally persons, but at a distance to ensure the secrecy of the ballot. Its purpose is to ensure that an agent or other person present at a count cannot identify the preferences of voters whose ballot papers are in a ballot box containing a small number of papers. An agent could surmise how a person voted from local knowledge or from the marked copy of the register of electors. Such a scenario is potentially in conflict with the constitutional requirement that "voting shall be by secret ballot".
Section 33 will allow a registered political party or a non-party candidate to display one poster within 100 metres of a polling station on each approach road but outside the curtilage of the building in which a polling station is located. Complaints were made about the 1992 Act's requirement which prohibits persons from canvassing or interfering with electors within 100 metres of a polling station, to the effect that it is difficult to identify polling stations and this may discourage electors from voting who might find it difficult to locate their polling building. The use of a small number of posters near the polling station may remind electors of the poll as it has been pointed out that polling buildings have become less visible.
I turn now to one of the more innovative aspects of the Bill, the provision for the introduc tion of electronic voting and counting. As announced in last December's budget, the Government provided £500,000 in 2001 for the first phase of a programme to introduce electronic voting and counting for elections in Ireland. Following extensive research by my Department into available technologies and an international tender competition, a Dutch-UK company, Nedap-Powervote, has been chosen to deliver an electronic system. Phase 1 of the project is under way and will involve extensive testing of voting machines, election management software and PR-STV count software. When testing establishes that the system operates satisfactorily, the Government will consider using the equipment in a number of constituencies at an election or referendum, provided of course the legislative provisions are enacted.
The Nedap/Powervote solution will provide a large screen voting machine, which is successfully used in the Netherlands and in the German cities of Cologne and Dusseldorf. Election preparation will be run from an industry standard PC system and the completion of the count, using PR-STV, will be carried out on a standard PC and programming unit. The emphasis in the chosen solution is on security and simplicity. The system will be simple to use both for voters and for returning officers and their staff.
Vital functions will be available for authorised staff only and a new version of the election management software is provided for every election. Electors will register in the normal way at the polling station. They will record their preferences by pressing a designated space beside the candidate's details on the ballot paper displayed on the voting machine and vote by pressing the vote cast button. There is a facility for an elector to correct or change a preference recorded before the vote cast button is pressed. Votes cast are always securely stored in case of a machine or power failure.
The introduction of electronic voting and counting is a large and challenging project at the end of which, I am confident, we will have a system that will make it easier for the public to vote, provide election results within a few hours of close of poll, improve the efficiency of electoral administration and support a positive image of the country in the use of information technology.
Sections 35 to 48 provide a statutory framework for the use of electronic voting and vote counting. The number of sections may appear small but Part 3 will be applied along with the provisions of the Electoral Act, 1992, modified as necessary. One of the comments most frequently heard is that elderly electors may have difficulty using the system. Experience elsewhere, and the small pilot study of the Dublin South Central by-election, does not support such worries. If electronic voting is used successfully in countries with large populations and high illiteracy, I have no doubt that the Irish electorate will not have any difficulty with the system. As far as the elector is concerned, he or she will be replacing the use of a pencil for marking preferences with a finger touch. There will be local and national educational and publicity campaigns on the introduction of the system.
I will table some textual amendments on Committee Stage to the sections in Part 3 to improve the text of the sections as they were drawn up and drafted before the preferred supplier was appointed. The changes will be as a result of discussions with the supplier.
Despite the innovative measures contained in the Bill, it is fair to say that a small paragraph in Part 4, to which I now want to turn, has attracted the most comment. The Electoral Act, 1997, was amended in 1998 to deal with a number of difficulties that arose in applying its provisions. This is not surprising given the complex reporting and administrative procedures that the legislation entails. The experience gained by the Public Offices Commission since 1997 has, understandably, given rise to a number of further operational difficulties. Section 49 revisits the Electoral Act, 1997, as amended in 1998, to provide for a number of amendments, most of which have been requested by the commission. The changes are listed in the explanatory memorandum and deal mainly with operational difficulties encountered in regard to the application of the legislation. The amendments proposed will help the commission, political parties, public representatives and others in making the legislative provisions work more smoothly.
Many of the difficulties, I suggest, may not have arisen if the original expenditure limits were set at reasonable levels. Candidates and Members of both Houses should be able to go about their daily business, whether acting as representatives of the people or campaigning at an election, without the need to carry a calculator or engage an accountant to ensure that every penny spent is accounted for. I have, therefore, taken the opportunity in this Bill to revise the expenditure limits at Dáil elections to what I believe are realistic levels. Section 32 of the Electoral Act, 1997, set the original expenditure limits for candidates at a Dáil election at £14,000, £17,000 and £20,000 for a three, four and five seat constituency, respectively. I increased these amounts in line with increases in the CPI on 13 October 1999 to £14,453, £17,550 and £20,648. I have always believed, however, that the original limits were inadequate and I am now proposing to increase them to what I believe are sensible and workable levels of £20,000, £25,000 and £30,000.
My position on this issue has been consistent. When the Electoral Act, 1997, was being discussed on Committee Stage, I proposed amendments to increase the limits to £20,000, £22,500 and £25,000 which, when updated for increases in the CPI to 2002, are comparable to those I am now recommending. Indeed, the two lower amounts I am now proposing are less than what the updated amounts would be in June 2002 if my original proposed limits had been accepted in 1997.
At that time the Minister refused to accept my amendments replying that the limits in the Bill "are reasonable and it will be good for politics and good for our pockets when they are put in place". Interestingly, since those limits were set and in the only practical application of their adequacy, candidates from Opposition parties have exceeded the statutory amounts in no less than three instances in five Dáil by-elections. The House may also be interested to know that the Labour Party had a total spend in those by-elections of £86,925 compared to £86,862 for Fianna Fáil – not quite the difference that some commentators might have expected.
The lesson from the experience to date is clear and should be a pointer to what will occur at the first general election where these limits will be applicable. It is important that expenditure limits be set at a level which will permit the running of an effective campaign without the need to engage an army of accountants and financial advisers to keep within unduly restrictive amounts. Following the next general election I do not want Members of the Dáil from any side to be under investigation by the commission for moderate expenditure over the limits, which I am sure would happen were the present amounts to remain. The revised limits I am proposing are based on the principle that an effective election campaign is an essential element in the democratic process. Clearly, the determination of appropriate limits is a matter of judgment. My judgment is that the proposed limits in the Bill are reasonable, balanced and workable and provide an appropriate framework for the regulation of election expenditure.
I note that one of the criticisms levelled at me was that there was no rationale in the documents released under the Freedom of Information Act for the increased limits I proposed. I have carried out a fairly extensive examination of the files for the 1997 Electoral Act and there is no rationale for the limits set in that Act, except the Minister's own judgment at that time. I say that merely in passing.
There are some pertinent facts which the Labour Party, and indeed some elements of the media, have overlooked in their comments on the limits proposed and it is important that I put them on the record. I accepted, as did my party, the principle of election expenditure limits in 1997 but at reasonable levels. The inadequacy of the current limits have been demonstrated by the inability of the Labour Party and Fine Gael to remain within them at by-elections.
I want to sound a note of caution, which was sounded in 1997 also. There is a major problem in relation to third party expenditure. There are constitutional issues in relation to imposing limits on third party expenditure vis-à-vis the right of freedom of expression. My own view, however, is that if a third party campaigns against a candidate, that candidate should have a reasonable opportunity to defend himself or herself within reasonable expenditure limits. The limits I am proposing may not be adequate in such circumstances but they will help, especially when a single advertisement in a newspaper can cost thousands of pounds. While a third party has a constitutional right to freedom of expression, a candidate at an election also has a constitutional right to vindicate his or her good name. For example, the weekend before the next election any group can register with the Public Offices Commission and produce an onslaught in the media or through literature and leaflets, making all sorts of statements in relation to a party or an individual candidate. The issue which arises is whether a candidate has the right to place ads in newspapers to defend and vindicate their good name. It will be interesting if it arises and while I do not want to raise hares about it, it is a possibility. There is already evidence of it in some areas in relation to different issues. There exists a right to freedom of expression, but there also exists the right of a person to vindicate their good name.
The new limits are the same for all candidates and do not provide additional funds to Fianna Fáil. It is worth emphasising that what Fianna Fáil and the Labour Party are entitled to spend at elections is determined by the number of candidates nominated. It is open to the Labour Party to nominate as many candidates as Fianna Fáil, or more if it wishes.
Section 50 is largely concerned with consequential amendments to the European Parliament Elections Act, 1997, following the amendments in Part 2 of the Bill. One substantive extra amendment provides for the transfer of responsibility from the Clerk of the Dáil to a chief returning officer for a number of matters at European elections, including forwarding the election results to the European Parliament and receiving, storing and destroying documentation. Essentially, I am restoring the pre-1997 position as the Clerk of the Dáil does not have adequate storage facilities in Leinster House or the resources to meet the various demands that arise from his responsibilities in this area.
Sections 51 to 54 provide for consequential amendments to the presidential, local election and referendum codes following the amendments in Part 2.
Sections 55 and 56 make amendments to the Seanad Electoral (University Members) Act, 1937, and the Seanad Electoral (Panel Members) Act, 1947, to provide for photographs on ballot papers, an edited university register of electors, an advance to the returning officers for their expenses before the election orders are made and for producing the Seanad register of electors in electronic format. Section 56(c) repeals Rule 23 in the First Schedule of the Seanad Electoral (Panel Members) Act, 1947. The Clerk of the Seanad has requested the repeal of this rule as it cannot be complied with. It was linked with entering numbers on ballot papers, which was terminated in 1972.
I hope to be in a position on Committee Stage to bring forward amendments in relation to the issue of donations. I may also move amendments on Committee Stage to delete the provisions of this Bill in relation to referendums as I may be including these and certain other provisions in a separate referendum Bill subject to the views of the other parties. The Government Whip will be raising this with the other parties this evening.
The Bill before the House can be characterised in two ways – it is innovative and forward looking in terms of electronic voting and counting, the provision of photographs and party emblems on ballot papers and provision for earlier opening of polling stations. However, it also revisits the existing electoral code to streamline registration arrangements, to clarify provisions in relation to age and eligibility to vote, to expand and update the conditions for registration of political parties and to improve the working of the Electoral Act, 1997, for the Public Offices Commission and elected representatives. Like all politicians and commentators I am concerned at the trend towards declining voter turnout in recent years. We must continually examine the statutory and administrative arrangements in place for elections and remove difficulties where they arise. The Bill addresses such issues and will help to modernise our democracy. Accordingly I commend it to the House.