Electoral (Amendment) Bill 2004: Committee Stage (Resumed).

SECTION 1.
Debate resumed on amendment No. 5:
In page 6, lines 5 and 6, to delete subsection (9) and substitute the following:
"(9) Where it is proposed to make an order under this Act, a draft of the order shall be laid before each House of the Oireachtas.
(10) The order shall not be made until a resolution approving the draft has been passed by each such House.".
—(Senator Bannon)

The procedure proposed in section 1(9) of the Bill is the same as that generally used for commencement orders for many years across a wide variety of legislation and I see no need to change the procedure. Having regard to the discussion on amendments Nos. 1 and 4, I cannot accept amendments Nos. 5 and 6. If we were to change this and other pieces of legislation in this way, the entire system might be paralysed. I refer Senator Quinn to my contribution on his amendment No. 4, in which I stated that the first part of the amendment reflects what will happen when the Bill is enacted. Consequently, I asked the Senator to accept my undertaking in this regard. Commencement orders have been used for many years in a wide variety of legislation and there is no particular need for change.

I am disappointed. While I of course accept the point that commencement orders are used, this is for routine matters. It is important to stress that this is not a routine matter but something much more important. I hope the Minister will reconsider this.

I am disappointed by the Minister's response. We are elected by the people to serve them and it is important we do not undermine public confidence. The amendment deals with the issue of transparency and I am not prepared to withdraw it.

Amendment put.
The Committee divided: Tá, 29; Níl, 18.

  • Bohan, Eddie.
  • Brady, Cyprian.
  • Brennan, Michael.
  • Callanan, Peter.
  • Cox, Margaret.
  • Dardis, John.
  • Dooley, Timmy.
  • Feeney, Geraldine.
  • Fitzgerald, Liam.
  • Glynn, Camillus.
  • Kenneally, Brendan.
  • Kett, Tony.
  • Kitt, Michael P.
  • Leyden, Terry.
  • Lydon, Donal J.
  • MacSharry, Marc.
  • Mansergh, Martin.
  • Minihan, John.
  • Mooney, Paschal C.
  • Morrissey, Tom.
  • Moylan, Pat.
  • Ó Murchú, Labhrás.
  • O’Rourke, Mary.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Scanlon, Eamon.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Bannon, James.
  • Bradford, Paul.
  • Burke, Paddy.
  • Burke, Ulick.
  • Coghlan, Paul.
  • Coonan, Noel.
  • Cummins, Maurice.
  • Feighan, Frank.
  • Finucane, Michael.
  • Hayes, Brian.
  • Henry, Mary.
  • McCarthy, Michael.
  • McDowell, Derek.
  • Norris, David.
  • O’Toole, Joe.
  • Quinn, Feargal.
  • Ross, Shane.
  • Terry, Sheila.
Tellers: Tá, Senators Minihan and Moylan; Níl, Senators U. Burke and McCarthy.
Amendment declared lost.

I move amendment No. 6:

In page 6, subsection (9), line 6, after "made" to insert the following:

", but shall not come into effect until after a resolution of both Houses is passed".

I will not press the amendment but rather withdraw it for the consideration of the House tomorrow.

Amendment, by leave, withdrawn.
Section 1 agreed to.
SECTION 2.

Amendments Nos. 7 and 8 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 7:

In page 6, subsection (1), line 12, to delete "equipment." and substitute the following:

"equipment, or

(c) interferes in any way, without due authorisation, with the software used or intended for use in a voting system in the State, including any such interference that occurs during the development or deployment of such a system.”.

I am not so sure amendments Nos. 7 and 8 are related and I would prefer to take them separately. However, I will speak on amendments Nos. 7 and 8 although I do not believe they are related.

I hope the Minister of State will pay attention to amendment No. 7 because there is a flaw in the legislation, which is encompassed by the amendment. I recall the occasion on which Senator Ross discovered a flaw in a previous electoral Bill which meant the Bill had to be withdrawn. I am concerned about the risk that we will define offences under the legislation so narrowly that particular types of offence would escape altogether.

Senators may remember a case which arose some years ago of a young student in the Philippines who wrote and disseminated a computer virus which caused untold havoc around the world wherever computers were used. It flourished for only a few weeks but the virus caused an enormous amount of economic damage in many countries. Although the perpetrator of the virus was eventually tracked down and caught thanks to some excellent and sophisticated detective work, in the end it proved impossible to prosecute him because there was no offence in the law of his country to cover the writing and dissemination of a computer virus.

This was the nightmare scenario which occurred to me as a possibility when I read section 2 of this Bill. While I accept that my previous amendments were tabled to improve the Bill and were not essential, I am very serious about this amendment. In the section, the word "software" is not specifically mentioned although it is mentioned in the relevant paragraph of the explanatory memorandum. The startling feature is that it is not actually stated in the legislation.

It is against the software rather than the hardware that the most serious offences are likely to occur. A person who wanted to wreck the voting process would perhaps take a hammer to the hardware but a person who wanted to interfere with the voting and affect the outcome of the voting would have to target the software for interference. The wording of the section mentions two terms — a different one in each subsection. The first subsection refers to "any voting system equipment" while the second refers to "any voting machine equipment". Neither of these terms is defined in the Bill except in section 4, where the definitions are stated to apply only to Part 2 of the Bill, which does not include the section we are now discussing.

Even if we moved section 4 back into Part 1 of the Bill and made it clear that the definitions applied to whole Bill instead of just to Part 2, the outcome would not fulfil the need to spell out that software is included within the scope of the offences being captured. In another context, Senators will be familiar with the long-standing controversy over whether the intellectual property of software should be protected under present law or under copyright law, which point we discussed with the Taoiseach in the Joint Oireachtas Committee on European Affairs. Unless we specifically spell out what we are talking about and that we are including software, I can foresee a great deal of legal dispute in future arising from the issue of whether the terms "equipment" or "apparatus" can be extended to include software.

I am sure the Minister of State has a briefing note which argues that there is no possible doubt that the section as drafted includes software. However, with the greatest possible respect, I submit that we cannot be legally certain in that regard. Why should we take a chance when we could so easily put it beyond any doubt whatsoever?

We need to specify software, beyond any possible doubt, as being within the scope of the offences captured under this legislation. The second deficiency in the Bill is that the definition of offences appears to be too restrictive in terms of time. It seems to focus on interference which takes place during the actual course of an election, disregarding any interference which might take place in advance of an election during the development or deployment of the system which must take place ahead of time.

The people who have knowledge of the possibilities have pointed again and again to the possibility of the software being interfered with by an insider, in other words, by a person employed by the developers of the software itself. This becomes a greater possibility as the present system is based on proprietary software rather than open source software. The software we are talking about is a jealously guarded trade secret.

Even the Commission on Electronic Voting ran into difficulties in getting access to the software. In these circumstances it is much easier for fraud to occur within the development process itself because the end product is such a big secret. I am not seeking to cast aspersions on anybody, least of all the producers of this system, but however trustworthy that firm may be, what company could vouch for every single one of its employees? It is far from beyond the bounds of possibility that a disgruntled employee or enthusiastic hacker in the employment of the company could secretly introduce into the software an element that could interfere with the results produced by the system. When we introduce the possibility of bribery as a motivation for interference of this kind, which is a real change, the scenario becomes even more likely and becomes a probability rather than a possibility. If that ever happens and we are lucky enough to detect it and track down the culprit, then we should at least be able to prosecute the person or persons concerned. We should define the offence in the legislation broadly enough to capture something that happens in those circumstances, unlikely though that may be in practice.

Only if we are prepared to guarantee that such interference could never happen, and I do not see how we could possibly guarantee any such thing, should we fail to allow for such a possibility when defining offences under this Bill. This amendment addresses both of the issues I have raised; on one hand, the additional subsection I propose specifically includes interference with software as an offence, and on the other hand it extends the definition of interference with software to include any such interference that takes place during the development or deployment of a voting system, as well as during the electoral process itself.

Without this amendment or some equivalent measure we run the risk of being unable to prosecute a serious offence. I cannot imagine anything more likely than that to bring the whole system into disrepute. I strongly commend amendment No. 7 about which I feel very strongly. The Bill is flawed by the omission of the term "software" as words such as "apparatus" and "equipment" exclude software. Also, this section only deals with events during an election rather than prior to the election.

Amendment No. 8 deals with the seriousness with which we treat the electoral process. That seriousness is not reflected in the schedule of penalties in the legislation, although the matter at hand goes to the very heart of our democracy. Nothing could be more important in the running of the State as the way in which we regulate our electoral process. It follows that offences against that electoral process are or can be very serious matters.

Where electronic voting is concerned, we must allow for the possibility of the most serious offences being committed. The nature of what we are discussing allows for the possibility that a person or persons may make a large scale attack against the integrity of the system, as opposed to a single, isolated attempt on an individual voting machine, which is covered in the legislation. Such isolated incidents could be dealt with summarily, just as individual cases of personation can be dealt with summarily. However, a widespread attack on the integrity of the system is a totally different matter.

It is essential we foresee the possibility of such an attack and provide for it in the schedule of penalties. We must allow for the possibility of offences being committed that are so serious that treating them summarily is not appropriate. Offences of that level of seriousness should be prosecuted on indictment with an appropriate range of penalties to match. The Bill as drafted does not allow for any prosecutions on indictment, providing only for offences which are dealt with summarily. I was astonished when I first read the Bill to find that offences were being dealt with in so offhand a manner.

To proceed in this way would be a grave mistake. The summary offences set out in the Bill would be no deterrent to a determined person setting out to commit a very serious offence against the electoral system itself, as such a person would regard that as no more than a slap on the wrist rather than an effective deterrent. This becomes all the more evident when one considers the possible influence of large scale bribery in any such offence. In these circumstances, the size of the fine proposed or the length of the imprisonment would be considered laughable by any determined criminal.

I tabled this amendment because I concluded that in drafting the Bill the Government had made a fundamental mistake as to the potential seriousness of offences under the legislation. I was strengthened in that conclusion when I looked at other Bills before the Oireachtas for the sake of comparison.

I refer to the Garda Bill 2004, which has not yet been debated in either House, and which sets out a range of offences and penalties. Section 53 states that a person is guilty of an offence if he or she impersonates a member of the Garda Síochána or makes any statement or does any act calculated falsely to suggest that he or she is such a member. A person guilty of an offence under that section is liable on summary conviction to a fine not exceeding €2,500 or imprisonment for a term not exceeding six months or both. On conviction on indictment there is a difference — the fine should not exceed €50,000 or imprisonment for a term not exceeding five years, or both.

Section 21 of the Civil Liability and Courts Bill 2004 sets out a series of offences applying to a person who gives false evidence in a personal injury claim, stating that if, after the commencement of the section, a person gives or dishonestly causes to be given or adduces or dishonestly causes to be adduced evidence in a personal injury action that is (a) false or misleading in any material respect and (b) that he or she knows to be false and misleading, he or she shall be guilty of an offence. Section 21(2) states that if, after the commencement of the section, a person gives or dishonestly causes to be given an instruction or information regarding a personal injury action to a solicitor, a person acting on behalf of a solicitor or an expert that is false or misleading in any material respect, and that (b) he or she knows to be false or misleading, he or she shall be guilty of an offence. That Bill also provides for both summary conviction and conviction on indictment. In the case of conviction on indictment the penalties are a fine of up to €100,000 or ten years imprisonment or both.

The Public Services Management (Recruitment and Appointments) Bill 2003 lays down offences that applicants for jobs in the public service may commit in making a false declaration in the course of their application. Section 56 of the Bill states that in respect of a competition for a position within the public service a person shall not (a) knowingly or recklessly make an application that is false and misleading in a material respect for the position; (b) in purported compliance with the requirement for the position, knowingly or recklessly provide any information or documentation that is false or misleading in a material respect; (c) canvass any person with or without inducements on his or her own behalf or on behalf of a candidate for the position; (d) personate a candidate at any stage of the recruitment and selection process concerned; (e) knowingly or maliciously obstruct a person engaged in the conduct of the competition or otherwise interfere with the general conduct of that competition; (f) knowingly and without lawful authority take any action which could result in the compromising of any test material or any evaluation of it; and (g) interfere improperly with the competition process or competition records so as to confer an advantage or disadvantage on any candidate.

Section 57 then specifies the penalties for the offences. Both summary prosecution and prosecution on indictment are provided for, and in the case of conviction on indictment there is a fine of up to €10,000 or imprisonment for up to two years, or both. These three Bills do not deal with particularly heinous offences, yet all three specify that those offences can be tried summarily or on indictment. Why are we treating this Bill differently? Is it that the Government considers the offence of interfering with the electoral process as less serious than impersonating a member of the Garda Síochána, giving false testimony in a personal injuries action, or making a false representation in applying for a job in the public service? I do not believe anybody could come to that conclusion, nor do I believe the Government has come to such a conclusion. I prefer to believe it is an honest mistake. However, it is a mistake that cannot be allowed to stand because of the wrong signal it would send to the world about the seriousness which we attach to our electoral process and the tenacity with which we will defend attacks on its integrity. We can undo this mistake by accepting the amendment which I commend to the House. I regret those two amendments which are different are being taken together. What is being provided for here is to tackle a person who is cheating the voting system. What has not been provided for is one who attacks the system. It was not necessary under the old system. An attack on the software could damage the whole electronic voting system. We are all aware of what happened in Florida during the last presidential election and that was not an attack on the system. It would be easy to attack the software here. If a person attacks the software, the only crime of which they can be found guilty is the same as if they impersonated their vote. Both amendments are worthy of consideration, but particularly No. 7, otherwise the Bill is flawed.

I second those amendments. I compliment my colleague, Senator Quinn, on tabling those amendments, the purpose of which is to prevent danger to the proposed system. They are seeking to provide for safety precautions and the Minister should take them on board. I was annoyed at the Joint Committee on the Environment and Local Government when it was claimed by the company, employed by the Government, that its software was 100% accurate. Rarely can we give a 100% guarantee.

That is not relevant to the amendment.

We will all pass away some day or other. It is important that the Minister of State take those amendments on board.

I support Senator Quinn's amendments. It is important that these amendments are specific. We do not want a repetition of the case in India where heinous and wrong as the crime was, no prescribed law was broken. The amendment goes a long was towards ensuring that is not the system here. We have seen blatant abuse of many systems in recent years. We watched on television a few nights ago a person adept at computers who was able to create a worm which was capable of clogging up thousands of systems. Themodus operandi of that individual was to give his mother’s ailing computer business a temporary shot in the arm. These are issues of which we need to be careful.

Amendment No. 7 seeks to extend the description of the offence described in section 2 in relation to the software used or intended for use in the system. The Bill already covers this point, perhaps in a less direct manner. I refer the Senator to section 1(2) which states:

The Electoral Acts 1992 to 2002 and this Act may be cited together as the Electoral Acts 1992 to 2004 and shall be read together as one.

It may be somewhat cumbersome but that is the position. I refer Senator Quinn to the Electoral (Amendment) Act 2001, section 38(nn) which reads:

In section 138(a) of that Act, there were inserted “or voting machine or cartridge or disc from a voting machine or software or other voting system equipment used for voting or vote counting” after “or any unused ballot paper”.

I fully appreciate the point being made because it would be necessary to refer back and, perhaps it is not as clear as it should be. However, the matter is covered in that Act. I note the strong case made by the Senator that while summary offences are covered indictment is not covered. I give an assurance that if it is recommended by the commission on electronic voting that electronic voting may be introduced then it will be necessary to introduce further legislation to change the count rules. When we are introducing that further legislation, if it is necessary, to deal with the count rules I give an undertaking to Senator Quinn and the House that matter will be considered. While the matter is relevant it is not relevant to this election. This is not afait accompli. I will have discussions with the Parliamentary Counsel and request it to consider incorporating amendment No. 7. I will also have amendment No. 8, which is linked with the offence, reviewed and ask the Parliamentary Counsel to consider how it can be incorporated in this or other wording. I do not wish to make light of the proposals but one could say the voting machines and the PCs are stand alone and will be secure from hacking and that the equipment will be used under supervision and under the control of returning officers and of the presiding officers in polling stations. The biggest danger is from malicious damage in polling stations. The message needs to go out that such behaviour will not be tolerated and the best means of sending out that message is to ensure the fines are at a realistic level.

I have a doubt when the Minister of State says the biggest threat is to the voting machines and that they are stand alone. I am not talking about stand alone pieces of equipment but the software that goes into them in the preparation of it, probably months and years before. That somebody can install into the software a flawed system so that somebody is able to wreck the system with a virus, is a matter that is not covered. If it is covered under the 2002 Act there is no indictment. Therefore, the most one can be fined is the same as if one impersonated somebody. The Bill is flawed in this area and has to be corrected. Otherwise we are passing legislation that is flawed. I realise the Minister of State said he would bring it to the attention of the commission and see what it recommends. We are here to create good legislation. It will not be good legislation if the shortfall in its integrity is to be solved by drawing the attention of the commission to it in the hope it will solve the problem. It is flawed and it has to be corrected at this stage. It would be better not to pass the Bill today which is flawed in that manner.

Amendment put.
The Committee divided: Tá, 29; Níl, 15.

  • Bohan, Eddie.
  • Brady, Cyprian.
  • Brennan, Michael.
  • Cox, Margaret.
  • Dardis, John.
  • Dooley, Timmy.
  • Feeney, Geraldine.
  • Fitzgerald, Liam.
  • Glynn, Camillus.
  • Hanafin, John.
  • Kenneally, Brendan.
  • Kett, Tony.
  • Kitt, Michael P.
  • Leyden, Terry.
  • Lydon, Donal J.
  • MacSharry, Marc.
  • Mansergh, Martin.
  • Minihan, John.
  • Mooney, Paschal C.
  • Morrissey, Tom.
  • Moylan, Pat.
  • Ó Murchú, Labhrás.
  • O’Rourke, Mary.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Scanlon, Eamon.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Bannon, James.
  • Bradford, Paul.
  • Burke, Paddy.
  • Burke, Ulick.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Feighan, Frank.
  • Finucane, Michael.
  • McCarthy, Michael.
  • McDowell, Derek.
  • Norris, David.
  • O’Toole, Joe.
  • Quinn, Feargal.
  • Ross, Shane.
  • Terry, Sheila.
Tellers: Tá, Senators Minihan and Moylan; Níl, Senators McCarthy and Quinn.
Amendment declared lost.
Amendment No. 8 not moved.
Section 2 agreed to.
Section 3 agreed to.
SECTION 4.

Amendments Nos. 9 and 20 are related and may be discussed together by agreement.

I move amendment No. 9:

In page 7, subsection (1), between lines 3 and 4, to insert the following definition:

"‘source code' means the data which defines the principles or logic governing the operation of a system of electronic voting;".

Amendment No. 20 would require the publication of the source code of any electronic voting system, including in the event that a source code is amended, changed or disregarded. The amendment is related to amendment No. 7 which proposes that the term "source code" be defined. For some time, the Opposition parties have called for the publication of the source code, the guiding principles on which the electronic voting system is based. It is unacceptable to ask people to exercise their democratic franchise using machines when nobody knows how they work. Publication of the source code is fundamental to securing public trust in any system of electronic voting.

It is not acceptable to argue that the source code is a trade secret or confidential. The contract to buy the voting machines was funded by taxpayers' money. As the public are expected to use the machines, they have the right to know the source code and this is the purpose of the amendments. I was disappointed that the Minister of State did not yield on the previous amendment and ask him to yield on these amendments.

I have indicated on a number of occasions that the question of publication of the source code will be examined later in the year having regard to the security and secrecy of the ballot. As intended, my Department will examine the count rules in the context of electronic voting and counting to provide that all the votes of elected candidates are examined in the calculation and distribution of votes. As I informed Senator Quinn, any changes in the count rules would require fresh legislation which would provide the House with an opportunity to revisit the matter. In the circumstances, it is not necessary to include the requirement provided for in the amendment at this time. We will consider the issue at a later date.

Amendment, by leave, withdrawn.

Amendments Nos. 10 to 12, inclusive and Nos. 14, 15, 19, 27, 28 and 52 are related and may be discussed together by agreement.

I move amendment No. 10:

In page 7, subsection (1), between lines 3 and 4, to insert the following definition:

"‘voter-verified paper record' has the meaning assigned to it insection 5;”.

This amendment proposes to insert a definition of voter verified paper records, as demanded by the Opposition parties. The amendment is connected to my proposal under the new section 5 which would require the voting system to produce a voter verified paper record.

Amendment No. 11 also concerns verifiability and would ensure the definition of "voting machine" would include a requirement that the machines produce a paper copy of every vote cast. This facility will be necessary in the event that a result is called into question or a recount is called.

Amendment No. 12, which is related to amendment No. 11, is designed to ensure the definition of "voting machine" will require that the machines produce a voter verified paper record. The purpose of the amendments is to strengthen scrutiny of the electronic voting system and ensure the system is trustworthy and has the confidence of the public. It is important we act correctly in this regard.

Amendment No. 14 proposes to insert a new section on voter verified paper records. The availability of such records is fundamental to the integrity of any system of electronic voting and crucial in auditing and verifying the reliability and accuracy of electronic counts. The use of the electronic voting system caused a shock for certain candidates in one or two constituencies and the system needs to be tightened up.

Amendment No. 15 proposes a new section requiring the Commission on Electronic Voting to carry out random recounts of the voter verified paper records and to compare them with the results delivered by the voting machines. There is no better body than the independent commission to do that because it has done a wonderful job for the State. Regrettably, politicians did not listen. The former Taoiseach and leader of my party, Deputy John Bruton, pointed this out as far back as April 2002. If he had been heeded at the time, a great deal of taxpayer's money could have been saved and put to better uses in the interest of our citizens by various Departments. Regrettably, good advice was not taken on board and the amendments are intended to help in that regard. I hope the Minister of State will accept them and provide greater clarity.

I support Senator Bannon. I refer to amendment No. 52. Of the five themes the commission identified among the large number of submissions it received, the first was "the need for a voter verified paper audit trail to ensure that the accuracy of the results can be checked independently of the new system itself". The commission acknowledged the issue fell outside its terms of reference but it also acknowledged it had a bearing on the successful implementation of the chosen system. It broadly hinted a voter verified paper audit trail would be a desirable, perhaps even a necessary, element in ensuring the new system was fully accepted by the public. That is an invitation to us, as legislators, to broaden the terms of reference of the commission to include the issue of a verifiable paper trail.

This is an enabling rather than a prescriptive amendment. It leaves it open to the commission to consider the issue; it is not required to do so. I raised this issue first more than three years ago and a number of my comments are worth recapping. At a conceptual level what is at stake is a move from voting with an audit trail to voting without an audit trail and not a shift from paper-based voting to electronic voting. That is the basic difference.

Under the current system, the key characteristic is the physical existence of a vote on paper, which is tracked at every stage. Before a vote becomes a vote, it is counted and the number of ballot papers is carefully controlled. Each paper is recorded and this takes place in full public view. A vote becomes a vote when a voter records his or her choice on that paper. The voter can examine the paper and handle it before giving it up to confirm that the paper reflects his or her intentions. He marks it, examines it again and goes with that.

The fact that the vote is secret does not mean it disappears from view. It is counted going into the ballot box and again when it is taken out. The ballot paper is guarded while it is in the box. The counting takes place in public so everyone can see it and, if there is a recount, the physical evidence is there to do it. The entire process is so open and visible that the voter has total trust in the integrity of the system and this has not been questioned throughout the history of the State. The fundamental reason for this is the existence of a physical audit trail from start to finish. Our unquestioning trust in the system rests on that foundation.

I physically create my vote by marking the ballot paper and, from that moment, the ballot is handled in a way that virtually eliminates the possibility of fraud or error. There is no fraud because the ballot is overseen, while there is no error because the raw material is there for a recount if there is a question of doubt. However, under the new system a voter will indicate choices by pressing the relevant parts of a touchable screen and these will be electronically recorded on a medium such as a cassette or cartridge. The voter will not see the record and he or she must trust the technology to ensure his or her voting intentions are fully and correctly recorded.

There is no feedback, confirmation or guarantee that the voter's intentions have been properly translated into digital impulses. Under the new system the moment of truth, the instant of voting, will disappear into a black hole and it can never be retrieved. The Bill provides for detailed regulations for the care of the recording medium before and after the voting has taken place. The regulations will ensure the counting process can be undertaken repeatedly. However, it does not provide for a means to allow us to inspect whether the translation of the voter's intentions into digital impulses was properly carried out. The new system will require an act of faith that the current system does not require. That, in a nutshell, is what the entire discussion on electronic voting is all about.

In moving from a manual to an electronic system, must we also move from a system with a verifiable audit trail to a system without such a trail? That fundamental question has not been addressed. No body is better placed or qualified to address this question than the commission on electronic voting. It should, therefore, be left open to the commission's members to consider the issue and to report on it, if they so wish.

The purpose of amendment No. 19 is to enable the holding of parallel testing of the system in an election. In other words, as part of the testing of the chosen system, it should be tested alongside the existing system in an election in real time. The commission cited the absence of such testing as one of the reasons it was unable to certify the accuracy of the chosen system on page 20 of its interim report. It stated:

There has been no parallel testing of the system in a real election, either against the traditional manual system of voting or against an alternative electronic means; such parallel testing is very important for such a critical system as voting at elections: although the system was deployed on a pilot basis in 2002, these elections were not run in parallel with a paper ballot, and the software has been modified many times since then.

During full testing of the system the commission will seek an element of parallel testing. There is no other way of interpreting its comments. If, on this occasion, it was unable to certify the accuracy of the system because, inter alia, it lacked recourse to parallel testing, it follows that in future testing the same constraint will apply. However, the need for this amendment arises because the Bill does not provide for such a parallel system to operate. This is important and the legislation will be faulty if this provision is not included whereas it will be greatly improved if it is included.

The Minister is open to having a manual election in a number of constituencies and an electronic election in other constituencies. That was done during the last election. However, it is not open to him to have both a manual and an electronic election in the same constituency in the same election. In other words, no provision in existing legislation or in this Bill would permit the parallel testing that the commission sees as indispensable to its coming to a firm conclusion on the accuracy of the proposed system.

The Bill creates a catch 22. On the one hand, it sets out to empower the commission to complete its work and to give the chosen system a clean bill of health. On the other, it does not create the powers necessary for the proper testing to take place, as far as this aspect of parallel testing is concerned. That is a nonsense and it cannot be allowed to stand. This is an example of the way in which the interim report of the commission has made it imperative to revise this Bill before it is enacted. For these reasons, I commend this amendment to the House.

The amendment makes a great deal of sense and would provide great confidence in the legislation. A parallel testing system should be provided.

We have listened to the arguments for a voter-verified audit trail but when one examines the current system one will note that we do not get a receipt for the votes we cast. When the voter puts——

A paper trail exists.

——a ballot paper in the box, the vast majority do not know what happens it thereafter.

They can see it afterwards.

They can see it the following morning.

What happens when a count is finished? Does anybody know where the ballot papers go?

(Interruptions).

We trust the system that is in place, be it manual or otherwise. We must trust those counting, transporting and securing the votes. Every time a blood pressure reading is taken in a hospital the patient does not get a receipt for it. He trusts the technology to give him the correct reading.

One gets a receipt in one's bank.

I just do not see the difference. Even the commission pointed out that, because of the mixing of the votes through transfers, one will not achieve the same result if one does parallel testing. Therefore, I do not understand the argument for it. The last US election made use of chits and chads and guys looking at bits of paper. This is what we are trying to get away from. There is no requirement for a paper receipt for a vote.

At present, when an election is called we present ourselves at our polling station. We may or may not have our polling card, we are marked off the register and we witness this. We receive our ballot paper, go behind a screen and cast our vote in a box — a box that is now probably in an auctioneer's hall down in Drimoleague in west Cork. Nonetheless, we trust in the system to the point where we can go home, witness the opening of the boxes in the count centre the following morning, see the ballot papers on the table and receive the information from the tallies all morning. This is how the manual system operates. It has been tried and tested and has produced a level of public confidence that electronic voting certainly could not even aspire to produce. We can see democracy in action from the very beginning, and from the announcements on the various counts to the filling of the seats.

The point Senator Quinn makes about the running of both systems together is very good. It will not be 100% accurate — Senator Brady is quite correct in saying this — because of differences in the two systems. Under the existing system, a bunch of votes is randomly selected for use in the distribution of a surplus. There is no doubt about that but parallel testing inspires public confidence in the fact that the systems, run alongside each other, are accountable, accurate, fool-proof, etc.

It was the failure of the system in Florida that led to the success of the candidate who did not have the highest number of first-preference votes. We want to avoid this at all costs. It was appallingly bad.

On the transportation of votes, every time the Garda transfers a ballot box to Clonakilty council offices, I trust it 100%. We have very little choice but to do so.

One important feature of the commission set up to examine this matter and which has issued its report is that the Governor of Florida, Jeb Bush, was not on it.

Senator Bannon has made his point on the former leader of Fine Gael, Deputy John Bruton, twice today. The Deputy was a candidate in the Meath constituency, where electronic voting was used in the last election. Contrary to what Senator Bannon is saying, the Deputy has been very supportive of electronic voting and urged people to vote.

Let us return to the question of accuracy. During the last general election, different results were obtained following recounts in the Cork and Limerick constituencies. This would certainly not happen if the electronic voting system were used. Similar circumstances obtained in Roscommon some years ago, in which case the count lasted a week. In the most recent election, some counts lasted a week, notably in Cork. This is not acceptable to candidates, the officials working in the count centres and the families and supporters of the candidates. As Senator Brady stated, if we were to have a parallel system, there would be total confusion in closely fought contests for seats because of discrepancies in the results of the two systems. Voting and counting must be accurate, and this is the case with the proposed electronic voting system.

Senator Kitt referred to my comments on Deputy John Bruton.

That issue has been well thrashed out across the floor.

All members of Fine Gael welcome e-voting but we do not welcome a system that is flawed as the proposed system has been proven to be.

On the issue of receipts, I have said before that when one goes to an ATM and inserts one's card to withdraw money, one has the option of getting a receipt. I have always opted for a receipt because I do not trust the machine to do what I command it to do through using my card. Moreover, nobody wants a repeat of the inhumane events in the constituencies of Wicklow, Cork South-Central or Limerick West. Equally, what happened in Dublin North was just as inhumane because of the manner in which bad news was delivered to one of the Deputies who lost her seat. This was completely unfair. That is the other side of the argument.

This matter has been debated over the past few months and I have not heard, even today, any substantive reasons for the inclusion, nor am I aware of any other country using such a facility. It may have been used in Brazil at some stage but I understand it is being discontinued there.

This matter of the paper trail is causing concern, mostly in the US, regarding the use of some PC-based systems. Whether the facility should be provided is the subject of debate. It is not a proven requirement, nor is it a statutory requirement. There are arguments on both sides but we have to live in the real world. California, where it is proposed that the new equipment purchased in 2005 produce a paper trail, does not yet have machines that can do this. I understand there is a court challenge on the grounds that such a system will disadvantage the disabled and other groups. I noticed that several contributors who spoke on the Bill in the Dáil sought a facility to enable visually impaired voters to vote independently.

If we compare the various steps in the advocated paper trail system to what the Nedap voting machine does, we will note there is little or no difference. The major argument is that the voter will see an image or his or her vote before pressing the "cast vote" button. This claim shows the lack of information about the proposed system and the invalid comparisons made with PC-based systems.

I will not continue repeating that the electronic voting system is a stand-alone system. Other parties in the House were proposing Internet voting and text voting systems that could be hacked. However, this could not happen under the Nedap system. The printing of a ballot paper at the time of voting could lead to constitutional and practical difficulties. It creates a link between the voter and the vote and the printing of a receipt could lead to corruption. Unscrupulous employers could well dictate to their employees how they should vote and ask for proof afterwards of how they voted.

It has been argued that the two systems should be run side by side. We all agree that this would lead to two different results, thus leading to further confusion. Which result do we accept?

Amendment No. 19 tabled by Senator Quinn envisages a dual system of paper ballots and electronic voting. Nobody has a problem with parallel testing of the electronic system but I do not favour the use of the two systems for the reasons just given. I doubt that 100% of voters would correctly enter the preferences on a ballot paper, especially if many preferences were recorded on the voting machine orvice versa.

I will refer to Part 4, summary and conclusion, of the commission's report. It states "testing carried out by experts retained by the Commission on a significant sample of the voting machines deployed to returning officers confirms that the system can accurately and consistently record voter preferences". It continues: "Parallel testing of the counting software programme carried out by experts retained by the Commission using a large number of sample data sets and a similar counting programme developed for the Commission confirms that it can accurately count votes in most situations, including unusual or difficult electoral situations." However, the commission said that the absence of a paper trail raises the standard and quality of the other system testing that is required. I have no problem with that. We will await the outcome of further reports and a final report from the commission. The Minister, Deputy Cullen, stated when the commission was established that the Government would take its recommendations on board. We have done that and abandoned electronic voting in the short term. We will take into consideration other recommendations made by the commission.

In this instance, however, there is no justifiable reason for the paper trail. If I can go from the sublime to the ridiculous, reference was made to ballot papers being put into the boxes. How many people have looked at the bottom of the box? We had faith in the system and every confidence in those conducting the poll but there was a possibility that the box could have had a hole at the bottom and the votes could have fallen through and under the desk. It is possible. The number one could be changed from one to four or to 11. That is the type of confidence we had. Nobody ever looked at the bottom of the box to see if the ballots were going into a black hole. The other difficulties with the paper trail are two different results, corruption and constitutional difficulties.

However, it does not arise at this stage. We will not have electronic voting and there will be further opportunities to discuss these matters when we are discussing the recommendations from the commission.

The Minister intended to use the Nedap-Powervote system if the Government got its way. We were told by expert opinion that the system is not safe and is flawed. Does the Minister propose to change the system or to continue with it? Will he abandon the system and the machines? Some say the machines are stored in the Minister's constituency at a cost of €25,000 per annum. In fact, the figure of €25,000 was crossed out and a handwritten figure of €50,000 was substituted in the record discovered under the Freedom of Information Act. Will that system be abandoned if electronic voting is introduced?

With regard to the constituencies in which the ballot boxes have been disposed of, what have the returning officers done to date to replace them? From where will they come? Will they be replicas of the old boxes or will they be plastic? Who is making them?

It is ironic that earlier in the debate we were being accused of being too involved in the process. I do not know the answers to the questions. This is a matter for the returning officers, not the Minister. Ballot boxes will be available in ample time for the election. If I were to get involved in the micro-aspects of this, there would be justifiable reasons for making further accusations.

I accept Members expressing an opinion but they should be more accurate when quoting from the commission's report. Everybody likes to dineà la carte occasionally but Senator Bannon said the system was flawed. The commission states however: “The Commission wishes to emphasise that its conclusion is not based on any finding that the system will not work, but on the finding that it has not been proven at this time to the satisfaction of the Commission that it will work.” I do not know how one can extract from this that the system is flawed. We will await the outcome of the further reports but I have strong views about the paper trail. It is not being used in any other countries.

However, in the event of a court challenge of a result, the ballot papers can be presented to the court. That could have been done within a specified period after the 2002 elections. If questions had been raised, the papers could have been presented to the court. That facility will be available in the future. We are not using any system at present but Nedap-Powervote is our preferred system. No commission would recommend what a major party in the Houses has recommended, that we introduce a system based on texting and the Internet, both of which can be hacked. The system we recommended stood alone.

The Nedap-Powervote system is not safe and this was proven by expert opinion. Will the Minister continue to deal with that company?

That is the system on which the commission reported.

If the public demands it, will the Minister ensure the system is modified to produce a paper trail? This is what the public demands. In a recent opinion poll, 70% of respondents wanted a paper trail in the system. The Minister is flying in the face of democracy and what the people want with regard to a safe and secure system.

Amendment, by leave, withdrawn.
Amendment No. 11 not moved.

I move amendment No. 12:

In page 7, subsection (1), line 7, after "votes" to insert "and which produces a voter-verified paper record,".

Amendment put.
The Committee divided: Tá, 13; Níl, 28.

  • Bannon, James.
  • Bradford, Paul.
  • Burke, Ulick.
  • Coghlan, Paul.
  • Coonan, Noel.
  • Cummins, Maurice.
  • Feighan, Frank.
  • Finucane, Michael.
  • McCarthy, Michael.
  • McDowell, Derek.
  • Norris, David.
  • O’Toole, Joe.
  • Quinn, Feargal.

Níl

  • Bohan, Eddie.
  • Brady, Cyprian.
  • Brennan, Michael.
  • Callanan, Peter.
  • Cox, Margaret.
  • Dardis, John.
  • Dooley, Timmy.
  • Feeney, Geraldine.
  • Fitzgerald, Liam.
  • Glynn, Camillus.
  • Hanafin, John.
  • Kenneally, Brendan.
  • Kett, Tony.
  • Kitt, Michael P.
  • Leyden, Terry.
  • Lydon, Donal J.
  • MacSharry, Marc.
  • Mansergh, Martin.
  • Minihan, John.
  • Mooney, Paschal C.
  • Moylan, Pat.
  • Ó Murchú, Labhrás.
  • O’Rourke, Mary.
  • Ormonde, Ann.
  • Scanlon, Eamon.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Bannon and U.Burke; Níl, Senators Minihan and Moylan.
Amendment declared lost.

Amendments Nos. 13 and 25 are related and may be discussed together by agreement.

I move amendment No. 13:

In page 7, subsection (1), line 10, after "counting votes" to insert "in a non-random way".

The random nature of the manual system of counting votes is one of its drawbacks. The problem was referred to by Senator Brady when speaking to the last amendment. It is difficult to understand why, in adopting a system of electronic voting, the Minister has sought to transfer flaws from the manual system. Among the great advantages of an electronic voting system is that it is capable of counting all votes in the way they were cast. Hopefully, the electronic system we introduce will be fully transparent and unflawed. Amendment No. 13 proposes that any voting system adopted must count votes in a non-random manner to accurately reflect the true intent of voters. Given the importance of such a provision to instilling greater confidence in our democratic system, perhaps the Minister will consider accepting amendments Nos. 13 and 25.

I rise to support Senator Bannon and to provide the Minister of State with a practical example of an injustice under the current system. I hope the eventual introduction of electronic voting will address the problem. The current system is very unfair where there is a close race between candidates. It is fair that when a candidate exceeds the quota, his surplus is factored out in percentage terms. His second preferences are counted out. During the last general election count in Limerick West the surplus of the first candidate to exceed the quota was transferred with the result that a second candidate from the same party was elected by 800 or 900 votes. There is an inherent unfairness and injustice in simply taking those 800 or 900 votes from the top of the pile of surplus votes to be transferred. They could be from an area which is favourable to a particular candidate as happened in my case. Deputy Collins was elected in the western part of the constituency where I live although there is a tendency there to transfer votes within a party.

I am in favour of an electronic voting system for two reasons. Few people realise the emotional trauma which results from a long, close count for a candidate's family and close supporters. Tallymen enjoy the excitement of the process which they consider to be a blood sport. There is no doubt that one enjoys the process if one wins. If one is waiting while a process drags on after most people have left to celebrate, it is not so exciting. While one must accept the slings and arrows of electoral fortune, in a close contest an important function of an electronic system would be to take the random element out of the process. When a surplus is transferred to a second candidate, all preferences should be counted. The percentage factoring of votes in the case of the first candidate elected should be the same in the case of the second. The votes on the top of a pile may be from the area from which one candidate comes which will impact very unfairly on the others. Objectivity and fairness can only be achieved where all votes are counted and the same pattern followed in the case of a subsequent candidate that was followed for the first to exceed the quota.

I do not know if I could have made an issue of this at the last election. While I did not want to do so, I realise there is a defect in the system when it comes to distributing surpluses. Randomisation should be taken out of the process. I feel very strongly about this issue. If electronic voting is introduced, the system should be fair. While the human error element can be addressed by providing for delays between counts, an electronic system would result in much more scientific figures.

One reflects on all of these matters when one is involved in a close count. The number of votes which are not franked by presiding officers is a disgrace. It should be remembered that presiding officers are often playing with a candidate's livelihood. These presiding officers will preside in subsequent elections as that is the pattern. I often wonder where votes come from. In an urban area if a presiding officer does not like a candidate, he can fail to frank the ballot papers of a group of young people. They do not know or care that a ballot paper has to be franked. I would like to see questions asked in the presiding officer system where there is an excessive amount of unfranked votes to ascertain whether or not they come from a particular polling booth. In that scenario, an analysis should be carried out and the presiding officer involved should not preside in a subsequent election.

I support Senator Finucane's argument. In the first Seanad election in which I took part, I saw something unfair take place although it did not happen in my own case. Another candidate lost by a very small number of votes for precisely the reason outlined by Senator Finucane. The random ballot papers were taken from a pile which had clearly been transferred from a particular candidate. It was possible to identify the likely transfers and the votes did not go to the candidate I mentioned. It was incorrect. The process should never be random. All votes should be counted and the proportions allocated in the correct manner. While I assume that would be the case in an electronic system, a flaw appears to exist in the current system.

As already indicated on Second and Committee Stages in the Dáil, the Government intends reviewing the count rules following the June polls having regard to the calculation and distribution of surpluses. Senator Finucane has taken us through operations in that regard in terms of how a different result can be obtained if surpluses are distributed in a different manner. He is quite right in saying this is not an exact science. The Government is anxious to ensure it will become an exact science thereby eliminating the random factor.

The review, referred to earlier, will also cover any other areas linked to some arbitrary and random elements of the count. Senator Bannon will have another opportunity to reiterate his views when legislation to amend the count rule comes before the House. In the circumstances, I am unable to accept the amendment. However, there is general agreement that we must ensure the system is exact. A change in the count rules will be one of the advantages of electronic voting. As I stated earlier, Members will have an opportunity to discuss legislation on the count rules when it comes before the House and I am optimistic the electronic voting system in place for the next election will be more exact.

Amendment, by leave, withdrawn.
Section 4 agreed to.
Amendments Nos. 14 and 15 not moved.
NEW SECTION.

I move amendment No. 16:

In page 7, before section 5, to insert the following new section:

"5. The Electoral Acts shall stand amended so as to give independent candidates seeking election, parity with party-affiliated candidates.".

This amendment seeks to insert a new section between lines 23 and 24 on page 7. Members will be aware that this issue has been raised at executive meetings by a non-political body, the Local Authority Members' Association, on numerous occasions. Many Independent candidates make an enormous contribution to society and their local communities. This provision forces an Independent candidate to bring before a returning officer 15 registered voters on the day he or she lodges his or her nomination. It is not enough to bring the signatures, one must bring along the registered voters in person. It should be sufficient to supply the signatures only because many people do not like to be identified. This requirement flies in the face of democracy given our system is one of open voting. We have spoken on the issue of secret ballots in terms of this Bill and the European Elections (Amendment) Act. The provision of secret ballots goes out the window when one is required to drive people to the returning officer to secure a nomination.

I have no vested interest in this matter. As everybody knows, I am a member of a political party. I do not understand the reason Independent candidates should be treated differently to members of political parties. This is direct discrimination against non-affiliated candidates. It is unfair and unjust and should be changed. In a democracy, everybody has an equal right to place their names on a ballot paper. If not dealt with, this anomaly will be tested in the courts. The Constitution states that we should and must treat all our citizens equally. I do not see Independents as being treated equally in this regard.

The purpose of my amendment is to reverse this grossly unfair and undemocratic situation and to avoid a court challenge in that regard.

I am interested in Senator Bannon's point. However, the main difficulty for all candidates at election time is one of securing the deposit, in particular for European elections for which the deposit is high. I welcome the abolition, by way of court challenge, of the requirement to have a deposit.

On Senator Bannon's point, this matter has already been tested in the courts. Perhaps this issue could be reconsidered in the context of future legislation. The main obstacle was the requirement to have a deposit and I welcome the abolition of that provision.

Senator Bannon has made a valid argument but I am not sure the amendment, as tabled, is correct in that I believe we need controls in this area. If not, there is a danger that a person could interrupt an election by registering 1,000 candidates thereby resulting in one never finding the correct candidate. The current provision which requires a candidate to have 15 supporters may not be ideal. I would have been happy to support the amendment if it had offered an alternative. It is not a good idea to simply abolish the provision. While I would like the system to be eased in terms of Independent candidates putting their names forward, some sort of controls are required in this area.

The amendment seeks to set aside the provisions of the Electoral (Amendment) Act 2002 which introduced that instead of deposits non-party candidates would require their nomination forms to be assented by 15 assentors in the case of a local election, 30 for a general election and 60 for election to the European Parliament. I would like to point out that provision has been made, in terms of a European Parliament election, that assentors do not have to reside in a particular electoral constituency but can come from across the entire European constituency.

A party candidate does not require his or her nomination form to be assented to if the form is accompanied by a certificate of political affiliation. Reference was made to the constitutional aspect of this matter. The constitutionality of these provisions was tested in the High Court last year. In that regard, the High Court found the provisions do not infringe the Constitution. Senators will be aware that the European elections order was commenced last Friday and the local elections polling day order will be made this week.

Senators will also be aware that candidates standing for election to the Seanad — this provision has been in place for a long time — are required, even with affiliation to a political party, to have the support of four Members of the Oireachtas. I do not know Senators' views in terms of the abolition of that requirement in the future given Senators' view that all people should be treated equally. However, that is a debate for another day. This matter was tested in the court by Cooney, King and Stack to which the court gave the ruling I outlined earlier. In the circumstances, I am unable to accept the amendment.

I thank the Minister of State for his explanation. A person in the university constituencies standing for election to the Seanad is required to have ten registered nominees. It is interesting to see the number of candidates who have difficulty in finding ten nominees. If a proposed candidate has difficulty finding ten nominees, the chances of him or her getting a respectable vote in the election are slim. It is, therefore, a good discipline. It is not unreasonable to require ten nominees in the case of the university constituencies in the Seanad election or 15 nominees for a local election. I was unaware that 30 nominees were required for a Dáil election and 60 for a European Parliament election. That seems reasonable to me.

Amendment put and declared lost.
SECTION 5.
Amendment No. 17 not moved.

I move amendment No. 18:

In page 7, subsection (5), line 46, after "may" to insert "by order".

It is important that we issue a reminder that we live in a democracy. As this section would empower the Fianna Fáil director of elections to give instructions to returning officers, in the interest of retaining trust in the system those instructions should be made by way of ministerial order. An earlier amendment of mine proposed that a draft of that order be required to be laid before the Houses for approval. This amendment is similar to that earlier one and I ask the Minister of State to accept it.

Instructions are not normally given by way of statutory order. Any instructions issued will, of course, be public documents. It is intended that most of the instructions will be in the guidelines to be issued under section 32 of the Bill. These guidelines will also be available publicly. However laudable Senator Bannon's case, his amendment is unnecessary and what he proposes would deviate from long established practice.

I agree with the Minister of State but I raise a small point regarding the clarity of the language in the instructions given to presiding officers and returning officers, which officials might bear in mind. At a polling station at a European Parliament election, I saw a lady arguing with the presiding officer. When she left I asked the presiding officer what was the problem and I was told that although the lady was on the register she could not vote because she was English. I assured him that not only could she vote but that she could stand for election for the European Parliament in Ireland. The presiding officer referred to the instruction book. Having read the book at least four times it eventually dawned on him that the lady was among the category of people who were not excluded from voting. The language of the instruction book would have led any reasonable person to make the same mistake as the presiding officer. We must ensure that the language in instructions to electoral officials is clear, precise and exact.

I agree with Senator Dardis. The electoral register shows letters beside certain names indicating that a person may vote in some elections but not in others. The key to what each letter means is found on the cover of the register. The explanation is often vague and difficult to interpret. I understand how a presiding officer might be confused about a person's voting entitlement. A clearer book of instructions should be issued to presiding officers and such situations explained during the training process. Similar clarification should also be circulated to political parties. Parts of constituencies are sometimes in adjoining counties and names of voters are found in different parts of the registers. This causes confusion and needs to be examined.

Amendment, by leave, withdrawn.
Amendment No. 19 not moved.
Section 5 agreed to.
Amendment No. 20 not moved.
Section 6 agreed to.
SECTION 7.

Amendments Nos. 21 and 26 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 21:

In page 8, line 20, to delete "modifying" and substitute "amending".

We touched on this matter when we discussed sections 7 and 15 and a number of Schedules. These sections are designed to effect non-textual amendments. Legislation, like instructions to electoral officials, should not be unreadable or hard to understand. The use of non-textual amendments is discouraged in the Government's White Paper, Regulating Better. If these amendments are to be made they should be made in an up-front and textual way. My amendments and these provisions are designed to make these amendments textual. This is a technical amendment.

This is a textual amendment. While I respect Senator Bannon, I am inclined to take the advice of the Parliamentary Counsel, who has approved the word, "modifying" in line with previous practice.

Amendment, by leave, withdrawn.
Section 7 agreed to.
Section 8 agreed to.
SECTION 9.

Amendments Nos. 22 and 24 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 22:

In page 9, subsection (1), line 8, after "machine" to insert the following:

", and that each machine has been duly locked and sealed in accordance withsection 8(4)”.

This subsection deals with the vital piece of record keeping which will be central to establishing the evidence that the procedures set out in the preceding section have been properly carried out. As the subsection stands, before the commencement of the poll a statement is required to be printed showing the names of the candidates on the ballot paper at an election or the two questions on the ballot paper in the case of a referendum. This is to certify that no votes have been cast or recorded on the machine. These are two key requirements of the procedures set out in section 8. It is fitting that it is properly recorded that they have been carried out.

Equally important is the other requirement, spelled out in section 8(4), that each machine has been properly locked and sealed. Why this omission? The requirement properly to seal and lock the machine is central to the integrity of the whole process. It surely follows that this statement of record by the presiding officer should also contain a certification that the essential requirement has been properly carried out. Without such a certification there will be a gaping hole in the chain of evidence if any problem should arise later in the process. It makes no sense to me that we should carefully inspect the recording of certain items while omitting to require the recording of other equally important items. What is the purpose of this record if it is to be seriously incomplete? We can repair this omission by accepting the amendment. I, therefore, commend it to the House.

Amendment No. 24 refers to section 11(2), which states that:

The presiding officer shall also certify that none of the voting equipment has been interfered with in any way during the election process or if any such interference has taken place shall specify in detail the nature and extent of such interference.

This amendment parallels, in important respects, the amendment I proposed to section 9.

Section 11(2) states:

As soon as practicable after the close of the poll, the presiding officer, after ensuring that the lock referred to in section 8 on each voting machine in the polling station has not been interfered with, shall cause a statement showing a list of the candidates on the ballot paper at the election or two questions on the ballot paper in the case of a referendum and the total number of votes recorded on the machine at the polling station to be produced by the machine. The statement shall be signed by the presiding officer and witnessed by another person in the polling station. The presiding officer shall then open the lock and remove the cartridge or disc from each such voting machine so that no further votes can be entered therein.

There is a requirement on the presiding officer to carry out a number of essential actions but not the requirement to certify that he or she has carried out all of those actions. It is surely just as necessary to provide a record of the end to end integrity of the process and that the officer should certify that the voting system equipment has not been interfered with in any way during the election process. It is even more necessary that the presiding officer should record if any interference has taken place.

As currently drafted, the Bill treats checking that the machinery has not been interfered with as a perfunctory matter, not worthy of being recorded. The very fact that it fails to provide for the circumstances in which actual interference has taken place underlines the lack of seriousness it attaches to the matter. In glossing over this matter, the Bill reveals a fundamental flaw. Checking on the integrity of the machinery used and recording the results of each check after it has taken place should be a central part of our policing of the system and of our guarantee to the public that they can have trust in it.

Providing for a check without providing that the result of the check be properly recorded is tantamount to a mere genuflection to the requirements for absolute security in an electronic voting system. The public deserves better than this and we can provide it by adopting the amendment proposed. I commend the two amendments to the House.

We all accept the principle outlined by the Senator. However, I refer him to section 9(1) which deals with the opening of the poll. It reads:

Immediately before the commencement of the poll at an election or referendum, the presiding officer at each polling station, after ensuring that the lock on the machine referred to in section 8 has not been interfered with, shall operate the voting machine in his or her charge to demonstrate to such persons as are present in the polling station that no votes are cast or recorded on the machine.

Therefore, the presiding officer is required by section 9(1) to ensure the lock on the machine referred to is not being interfered with. The matter is to be confirmed in writing by the presiding officer on the form VM1. This procedural item will be reinforced if necessary in the guidelines to be issued under section 32 of the Bill and in the presiding officers' instruction book. Form VM1, which I can make available, states that presiding officers are asked to check, before the start of voting, the seal number on the side of the voting machine and the ballot module seal number to confirm both are intact. Acceptance of the amendment would result in duplication.

Amendment, by leave, withdrawn.
Section 9 agreed to.
SECTION 10.

I move amendment No. 23:

In page 10, lines 1 and 2, to delete subsection (5).

The provision as it stands is too bureaucratic. If, for whatever reason, a voter is unable to or has not cast a vote within what the Bill terms "a reasonable time", he or she may not be entitled to apply for a second vote. Since e-voting was shelved because of the report of the commission many people have told me that they had not intended to vote. While I will not categorise, I can understand the fears of some about the electronic voting system. Voters do not want to look stupid if they cannot operate a machine at a polling station or hold up a queue or otherwise draw attention to themselves in an embarrassing manner.

There is also another issue regarding the term "reasonable time". The period is at the discretion of the presiding officer, which is like asking how long is a piece of string. A reasonable time may be defined by an unreasonable person and Members will have witnessed incidents in polling stations over the years. If there are issues or difficulties, only common sense and reasonable behaviour can iron them out. Staff at polling stations work from early morning until late evening and may be tired, hungry or even incoherent. Despite this, such staff may be charged with the authority to decide what is a reasonable time.

While I understand a similar provision exists in regard to the existing legislation for Dáil elections, it is just as objectionable in this instance. From the perspective of voters who do not wish to be embarrassed at polling stations, the removal of the obligation to vote in a reasonable time would encourage voters to go to the polls. This provision is too bureaucratic.

Subsection (5) clarifies the position for presiding officers where a person leaves a polling station. This is the current position in polling stations where paper ballots are used. Once a person is marked off the register of electors, a second ballot paper would not be issued if that person were to leave a polling station. A voter must vote without undue delay and should leave the polling station as soon as she or he has voted. Voters cannot be allowed to depart the polling station without voting and then return. There must be discipline.

If the amendment were accepted, it would give rise to circumstances in which impersonation could occur, and I do not think Members would want to provide such opportunities. It could also lead to lack of order in the control of polling station activity. We have had long experience of working the system and most people accept the responsibility of presiding officers. The system has worked well and it would be wrong to amend it. I will not accept the amendment as it is unnecessary.

The Minister referred to the current system, with which voters are familiar. However, I tabled the amendment because the new system is different. The phrase "reasonable time" can be construed in different ways in regard to e-voting. If a voter is using a machine she or he has never before seen or used, it is reasonable to assume she or he would spend longer than with the traditional paper system. I first voted at a referendum. I marked the ballot paper and examined it closely to make sure I was not voting against my intent. However, in this context, it is because the system is so new that the lack of knowledge and sense of powerlessness among voters can lead to real fear for some. The Minister when he uses the current system as an example may have the opposite effect to that which he intended. While I will not push the amendment to a vote, it is important to remain cognisant of the issue.

Amendment, by leave, withdrawn.
Section 10 agreed to.
Amendment No. 24 not moved.
Section 11 agreed to.
Section 12 agreed to.
Amendment No. 25 not moved.
Section 13 agreed to.
Section 14 agreed to.
Amendment No. 26 not moved.
Section 15 agreed to.
Amendment No. 27 not moved.

I move amendment No. 28:

In page 14, subsection (2), line 43, after "capability of" to insert "producing a paper record of every vote cast, and a capability of".

This amendment was discussed with amendment No. 10, on which the House divided. The amendment reiterates the point that voting machines must produce a paper record of every vote cast.

Amendment, by leave, withdrawn.
Section 16 agreed to.
Sections 17 and 18 agreed to.
NEW SECTION.

Amendment No. 29 is in the name of Senator Bannon. Amendments Nos. 31, 32, 35 and 36 are related, therefore, amendments Nos. 29, 31, 32, 35 and 36 may be discussed together by agreement.

I move amendment No. 29:

In page 15, before section 19, to insert the following new section:

"19.—(1) The Commission shall consist of-

(i) the same office holders appointed to the Referendum Commission under section 2 of the Referendum Act 1998, and

(ii) 2 other persons with knowledge or experience in the field of information technology.

(2) The provisions ofsection 25 shall not apply to those appointed under paragraph (i) of this section.”.

It is important that people of experience are appointed to these positions in order to get the best possible return and to ensure they know what they are doing. Such people of experience and knowledge should be appointed without favouritism.

I support this amendment as it is being discussed with one in my name. The purpose of the amendment is not in any way to criticise those member of the commission with scientific expertise or, for that matter, other members of the commission but rather to highlight what is a glaring omission in respect of the Ombudsman and the Comptroller and Auditor General. It is very important that these be included as members of the commission.

If there is a lesson to be learned from this issue, it must be in terms of consultation and involvement, which is the spirit of this amendment. I would appreciate if the Minister of State gave favourable consideration to the amendment and examined the calibre of the positions which are proposed to be included.

The effect of the combined amendments to section 19 is, in general, to increase the number of members of the commission by adding additional office holders to its membership, namely the Ombudsman and the Comptroller and Auditor General. Furthermore, amendment No. 35 seeks to drop two current members. The Bill provides that the commission is chaired by a judge of the High Court and includes two other office holders, the Clerks of the Dáil and Seanad and two other persons with knowledge or experience in the field of information technology. This is a reasonable balance without an overly large membership, which is what is required for the commission to carry out the specific task with which it has been assigned.

There is no statutory or other obligation for either of the two office holders mentioned in the amendments to serve on the commission, which has a specific task which does not relate to their official functions. In addition, there are good arguments for not having too many persons on the commission so that it operates efficiently and cohesively.

The proof of the pudding is in the eating and the commission has clearly operated effectively, independently and well and has produced a comprehensive interim report within a very tight time frame. It will no doubt continue to carry out its functions accordingly and I see no reason for an increase in its membership at this stage in mid-stream, nor do I see a need to replace the two members drawn from the field of information technology, which would be the effect of amendment No. 35.

In the circumstances, I cannot accept the amendments in this case. That is no reflection on the Ombudsman or the Comptroller and Auditor General. The commission is not similar to the Boundary Commission or other commissions referred to and it is essential we have a proper balance and that there are persons on the commission with experience in the field of information technology. Two of the members of the commission are thus qualified. It is not a question of anyone being excluded from the commission but rather one of them not being included.

In this context it is important to consider the composition of other bodies established in recent years. For example, the Ombudsman sits on the Standards in Public Office Commission, established in 2001, the Referendum Commission, established in 1998 and the Constituency Commission, established in 1997, while the Comptroller and Auditor General sits on two of these bodies. Why was the Ombudsman excluded from the commission? The commission breaches precedents set by the Government. Why also has the Comptroller and Auditor General been excluded?

According to the Senator's amendments, the Minister does not want to pay him.

I do not see a need for the Ombudsman because the commission is qualitatively different from the other bodies which have been mentioned. However, cognisance should be taken of the additional duties which are falling to the Clerk of the Seanad. Since I came to the House, the functions and role of the Clerk have become a burden. She is a member of the Boundary Commission and the Referendum Commission and now this commission. In addition, if we had our way in amending the Houses of the Oireachtas Commission Bill 2002, the Clerk would also be a member of that commission. It is regrettable that she is not. Nevertheless, cognisance needs to be taken of the workload which is falling on the Clerk's shoulders.

The Minister of State incorrectly stated that this is not about exclusion. Members of the Opposition were excluded when the membership of the commission was decided. If we are to learn anything about this episode, it is in regard to involvement, participation and consultation. I appeal to the better nature of the Minister of State to give the amendment favourable consideration.

Amendment, by leave, withdrawn.
SECTION 19.

Amendment No. 30 in the name of Senator Bannon is out of order as it involves a potential charge on the Revenue.

Many of us are members of committee and we do not get paid.

The amendment is out of order.

Amendments Nos. 30 to 32, inclusive, not moved.

Amendment No. 33 in the name of Senator Quinn is also out of order as it involves a potential charge on the Revenue.

I am disappointed. Nonetheless, I agree with Senator Bannon that I am sure the Ombudsman would happily work for nothing.

Amendment No. 33 not moved.

Amendment No. 34 is also out of order as it again involves a potential charge upon the Revenue.

How do we know it involves a potential charge?

That is the ruling.

Amendments Nos. 34 to 36, inclusive, not moved.
Section 19 agreed to.
Section 20 agreed to.
SECTION 21.

Amendments Nos. 37, 38 and 51 are related and are to be taken together by agreement. Is that agreed? Agreed.

I move amendment No. 37:

In page 16, between lines 40 and 41, to insert the following paragraph:

"(a) such reports on the Nedap Powervote system which present a comparative analysis of the reliability, security, integrity and verifiability of that system as compared with other systems of electronic voting which are in use in other countries, or which are available for acquisition,”.

We should not tie down the functions of the commission, which are fairly narrow. It should be empowered to take the Nedap Powervote system and compare it with other systems and its hands should not be tied as to the reliability, security, integrity and verifiability of the system.

Amendment No. 38 seeks to include a provision on such reports as deemed necessary on measures required to make electronic voting accessible to all disabled people such as to enable them to exercise independently their right to vote by secret ballot. I saw e-voting machines displayed in many unsuitable places. In two or three places the machines were on tables where it was nearly impossible for those in wheelchairs to access them. We must ensure that that does not happen on polling days, particularly as I have heard of instances where people could not access the models and candidates pushed such people to get a postal vote. That is unfair.

Every member of society, irrespective of disability, should be able to access e-voting machines. It is important the machine is placed on a table or bench that allows everyone to access it, which is the reason behind the amendment. People's rights are being infringed because they have told me that they would not go to the polling station due to the way in which the machine was set up. That may not apply in urban centres but in small rural polling booths, there will be problems. It will not be the fault of the presiding officers who will put the e-voting machines on surfaces they feel are suitable, but guidelines should be put in place. These should be stand-alone units rather than machines to be placed on tables, like the models which were on display. I do not know if such machines were modified for polling booths.

Every polling station should also have a bay for disabled parking at its entrance. People with disabilities who go out to vote often find they have to get out of their car and into their wheelchair in crowded conditions and though I know this is a matter for each local authority, provision for such bays should be part of the general guidelines from the Department. I am glad many public places have improved but not all public buildings have markings or areas for disabled parking. This should be considered as a matter of urgency.

We are now coming to the terms of reference of the commission; I refer to amendment No. 51. We should use this opportunity to revisit the terms of reference of the commission, as by doing so we can ensure we get the best possible result from its deliberations. We can also ensure that the commission is not unduly restricted or hampered in any way by restrictions we put on it regarding what it may discuss and consider. I am aware that the Minister consulted the commission at the outset about its terms of reference to ensure that its members were happy with the brief they were given.

However, that should not inhibit any of us from looking at the terms of reference again. Much water has flowed under the bridge in a very short time, and we should certainly revisit the terms of reference in the light of the interim report of the commission and the possibilities opened up by that report. Amendment No. 51 covers an eventuality I sincerely hope will not happen, but prudence demands that we provide for it in case it does. We must be ready for the worst case scenario, in which the commission comes back to us and states it cannot certify satisfactorily the secrecy and the accuracy of the system that has been chosen. I hope that does not happen.

Like the Government, and most people in the country, I hope that we have not thrown €50 million away on this project. I hope, as everyone does, that the commission will eventually find it possible to certify the chosen system, not because I have any flag to fly for the manufacturers of the present system, but simply because we have already invested so much money in that system. However, I am equally convinced that the fact that money has been spent on a system is not an argument for continuing with that system if it fails to deliver the goods, the goods in this case being a system the independent commission is prepared to certify. We should provide for the worst-case scenario. If the commission cannot certify the chosen system, what then?

The people we should look to for an answer to that question are the commission members. They are the people best placed to tell us how to move forward in looking for a voting system that is likely to be capable of certification. My amendment provides that in the event that it is unable to certify satisfactorily the chosen system as it stands, it will be open to the commission to set out what it considers to be an appropriate specification for any future system, including the necessity, appropriateness or desirability of using publicly-accessible open source software. Senators will note that this wording does not require the commission to set out a specification for any future system but merely leaves it open to them to do so should they deem it appropriate.

It also leaves it open to the commission to consider an issue which was the subject of many of the submissions received during the first stage of its work, namely the question of whether open source software should be specified for a project such as this. This is a vitally important issue which has not been sufficiently discussed in public. Senators will probably be aware there are two distinct types of software available: one is proprietary software which, as the name implies, is wholly the property of the company producing it. To preserve the rights in that property, the actual source software is kept strictly secret and not even the person who licenses the software from the company has the right to see into the actual source software itself. In a very real sense, therefore, one is buying a pig in a poke. Another characteristic of proprietary software is also highly relevant in the present case — when one buys proprietary software one is locking oneself in to one supplier for all time. If one wants to change supplier, one has to throw away the entire investment up to that point and start again from scratch with another supplier. Once we have chosen the Nedap-Powervote system we are stuck with their software for as long as we want to go on using their machines.

The alternative approach, which we have not adopted in this case, is to specify open source software. As its name implies, open source software is indeed open as the source software is publicly available. It can be inspected by anyone and can be used by anyone. If one uses open source software for electronic voting, one is using a system where the software is not secret at all. Strangely this can enhance rather than take away from the security of the overall voting process. Because the software is open it can be inspected by a wide range of experts and any faults in it can be clearly identified. The main advantage of open source software is that using it does not tie one to one manufacturer for all time. As things develop one can, if one wishes, put the project out to tender again and choose a new supplier. That new supplier does not have to throw away the existing investment, but can build on it. I have no wish here to make a case for either proprietary software or open source software. Clearly, if we were starting again from scratch — I hope we will not have to — the first question we should discuss and decide on is whether to go for open source or proprietary in terms of the software we choose. That is the fundamental first question that would need to be asked. This is the reason the issue is mentioned in this amendment.

If the commission should fail to certify the existing chosen system, then it should be open to it to set out a specification for any future system. It should also be open to it to consider, if it so wishes, this fundamental issue of whether we should in future choose proprietary or open source software. As prudent legislators it is our duty to consider all the possibilities and make provision for anything that may happen.

There have been many surprises on this road already, not all of them totally pleasant. Let us at least show that we have thought out the various possibilities, and provided a response to them. I commend this amendment to the House.

On the Order of Business, as amended, it was decided that Committee Stage of the Electoral (Amendment) Bill 2004 would conclude not later than 8 p.m. I am now required to put the following question: "That amendment No. 37 is hereby negatived, that sections 21 to 35, inclusive, Schedules 1 to 5, inclusive, and the Title are hereby agreed to in Committee and that the Bill is hereby reported without amendment."

Question put.
The Committee divided: Tá, 27; Níl, 11.

  • Bohan, Eddie.
  • Brady, Cyprian.
  • Brennan, Michael.
  • Callanan, Peter.
  • Cox, Margaret.
  • Dardis, John.
  • Dooley, Timmy.
  • Feeney, Geraldine.
  • Fitzgerald, Liam.
  • Glynn, Camillus.
  • Hanafin, John.
  • Kenneally, Brendan.
  • Kett, Tony.
  • Kitt, Michael P.
  • Leyden, Terry.
  • Lydon, Donal J.
  • MacSharry, Marc.
  • Mansergh, Martin.
  • Minihan, John.
  • Mooney, Paschal C.
  • Moylan, Pat.
  • O’Rourke, Mary.
  • Ormonde, Ann.
  • Scanlon, Eamon.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Bannon, James.
  • Bradford, Paul.
  • Burke, Ulick.
  • Coghlan, Paul.
  • Coonan, Noel.
  • Cummins, Maurice.
  • Feighan, Frank.
  • McCarthy, Michael.
  • Norris, David.
  • O’Toole, Joe.
  • Quinn, Feargal.
Tellers: Tá, Senators Minihan and Moylan; Níl, Senators U. Burke and McCarthy.
Question declared carried.

When is it proposed to take Report Stage?

Tomorrow at 2 p.m., by agreement.

Report Stage ordered for Wednesday, 12 May 2004.

When is it proposed to sit again?

Tomorrow at 10.30 a.m.