Electoral (Amendment) Bill 2004: Report and Final Stages (Resumed).

Amendment No. 4 is consequential on amendment No. 12 and both will be taken together by agreement.

I move amendment No. 4:

In page 7, between lines 3 and 4, to insert the following:

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

The integrity and security of the voting system is fundamental to the exercise of democracy. Machines and their operating software must be subject to the most rigorous and comprehensive testing regimes. The Bill needs a little more definition in this regard.

Last December, at a meeting of the Joint Oireachtas Committee on the Environment and Local Government, members requested that the Minister suspend all further expenditure on the system following the discovery by experts of errors in its software. However, the Minister chose to ignore that evidence. It is important there is full transparency in the system.

The Minister proposed the introduction of e-voting for the local and European elections. However, people are now aware of the problems with the system and know it cannot be trusted. The Minister did not listen to what the experts had to say in this regard. It is important there is full transparency in this area.

I second the amendment. I would like to address the Minister of State in terms of my concern about the results of the 2002 general election in Dublin West, Dublin North and Meath in which we now know discrepancies occurred. What effect did those discrepancies have on the outcome of that election? I am not suggesting the result in terms of those elected would change. However, if the results contained discrepancies, the extent of which we are not aware, what can the Minister do to assure me and others that the result was accurately obtained?

The commission established to investigate electronic voting has condemned the system and could not say with any accuracy that it would work well on 11 June. How do we know it worked correctly in the 2002 general election? Will the Minister of State ask the commission to investigate the system used in that election in which discrepancies have been highlighted?

As I stated on Committee Stage, I am in favour of the introduction of electronic voting but I also want to ensure it has the trust and confidence of the public. It is on that basis that democracy will survive.

The words "source code" refer to the data which defines the principles or logic governing the operation of a system of electronic voting. I urge the Minister of State to consider accepting the amendment which would strengthen the Bill.

On testing of the system, we had the privilege of hearing technical expertise, for and against the system, from a number of experts in this field. The Nedap-Powervote system has been tested by Irish and international experts. There are many checks and balances within the system from the time the poll is initiated through to the count and finalisation of the results.

As regards the source code, version 115 was in use last October-November which illustrates the technicalities involved. We are speaking of tens of thousands of lines of computer code. That is extremely technical data. The source code, as the Minister of State pointed out on more than one occasion last night, is being examined for the future. As the Minister said earlier, the commission stated it could not say that the system as proposed would not work. However, it did state that it had not had sufficient time to verify it. I do not believe the security of the system is at issue. That it has been tested time and again will prove beneficial in the end.

I, too, support the amendment. It is important we proceed with caution and attention to detail. While I accept the mechanical or logistical difficulties of accepting amendments at this stage, this amendment makes good sense and the Minister of State should look on it favourably. We are dealing with a whole new area, one which has received a significant blow in terms of public perception. Public confidence has been affected by the debacle that is e-voting.

It is important that we proceed with great care. There are very few experts in this area and we are using systems which have not been used before and are not user-friendly. It is important that the Minister show leadership and accept the amendment.

As I indicated on a number of occasions on previous Stages of the Bill, 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 be examining the count rules in the context of electronic voting and counting to provide that all the votes of elected candidates will be examined in the calculation and distribution of surpluses. The random nature of the distribution of surpluses will, I hope, be eliminated.

Any changes in the count rules will require fresh legislation. I have said this on numerous occasions. As I said to Senator Quinn earlier when we discussed the matter of summary and indictable offences, this will give us an opportunity to revisit the matter. I give that assurance to the House.

As to Senator Terry's query regarding what we can do, there is nothing we can do. The 1997 Act is explicit. It states that petitions to the court must be made not later than 14 days after the result of the election is declared by the returning officer.

Senator Terry referred to the general election of 2002. We can all quote selectively. I quote from the summary and conclusions of the commission's report. These are not the words of either the Minister or myself:

Testing of the counting software carried out by experts retained by the commission, using voting information from pilot tests during the previous elections, confirms that it accurately counted the votes recorded at these elections.

How can that be true when there is evidence of discrepancies?

We select what suits us. I am pointing out what the commission said regarding the findings of the experts retained by it.

There is no question about what the commission said.

The 14 days have elapsed and nothing further can be done. Neither would we interfere.

I am extremely disappointed with what the Minister of State has said. This is an indictment of democracy. The Minister of State says nothing can be done because nothing was done within 14 days of the general election. This information was not in the public domain at that time. The Minister of State's response disappoints me and the candidates who were affected by this matter.

That matter is not relevant to the amendment being discussed.

It is the law of the land.

On 10 December 2003, Ms Margaret McGaley and others, addressing the Joint Committee on the Environment and Local Government, said all that was required was that minimum safety precautions be put in place. The witnesses pointed out to the joint committee that the proposed system posed genuine threats to our democracy. Ms McGaley said the proposed system was not worthy of the electorate's trust. At that time Opposition Members asked that the issue of electronic voting be suspended until such time as the system was fool-proofed. This did not happen and the taxpayers have paid to the tune of more than €60 million.

When was the contract with Nedap-Powervote signed and did it require payment, whether acceptance testing was passed or not?

That matter is not relevant to the amendment.

It is related to the amendment. It is the system that was used.

That matter cannot be raised at this stage. Is the amendment being pressed?

I was hoping the Minister of State would respond.

I cannot respond.

Amendment put and declared lost.

Amendments Nos. 5, 6, 8, 9,16 and 17 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 5:

In page 7, between lines 3 and 4, to insert the following:

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

This amendment inserts a definition of the term "voter-verified record". It is connected to my earlier proposal regarding the new section 5, which requires a voter-verified paper record. This is something for which the Opposition and the general public have been calling. Members on the Government benches in both Houses also see the need for a paper trail. I hope the Minister will consider accepting this proposal, even at this late stage.

I second Senator Bannon's amendment. This point was made last night and I will not go over it again. I hope the Minister has had time to reconsider it.

I support the amendment. It is important to restore a sense of trust and inject public confidence in the electoral process. It is important that a voter have a guarantee that his or her vote has been lodged and recorded. We must move beyond a simple record that the voter has pressed the "cast vote" button. A voter-verified paper must also be provided.

Last night a comparison was made with ATM machines. When I use an ATM machine I keep my receipt and consult it afterwards — I am not referring to recent banking blunders — to be sure the transaction has been conducted accurately. We need an assurance that any transaction has been conducted accurately and that an accurate record of it is provided. This amendment should be considered in that context.

The issue, to which the Minister of State referred last night, of two systems giving different results is a serious one. During the debate on Second Stage it was made clear that many errors had occurred in the manual voting system. Seats have changed hands on a margin of fewer than 50 votes.

Electronic voting will eliminate inadvertent voting errors. There are people, obviously, who want the opportunity to spoil their votes. The experience in the constituencies where electronic voting was used in the general election and the Nice referendum was that inadvertent voting errors were eliminated. I cannot see how the parallel system proposed by Senator Bannon could work.

There was an expectation that the introduction of e-mail, lap-top computers and so on would lead to the use of less paper. It is a curious fact that the opposite has happened. We seem to be felling forests by the new time in verifying what is on a computer screen in front of us. I am not convinced of the need for what Senator Bannon proposes.

Many of the points being made in this debate could equally have been made about the old paper system. I recall a European Parliament election count in 1994 when the Labour candidate was overhauling the last surviving Fianna Fáil candidate at a rate of approximately two votes to one. There was a general election on the same day and many voters voted, for example, numbers 1, 2, 3 and 4 on the general election voting paper and then voted numbers 5, 6, 7 and 8 on the European voting paper. In three of the four European constituencies, marking 5, 6, 7 and 8 on the voting papers was held to be a clear preference and was admitted. However, in the Leinster constituency the returning officer ruled that a paper marked 5, 6, 7 and 8 was not valid, and many thousands of such papers were excluded. Had they been included, it is conceivable the Labour Party candidate would have won the seat. He went to the High Court which ruled that the returning officer was perfectly entitled in law to take the view she did, although it was a different view from that taken in the other European constituencies. Everybody accepted that this was the law.

There could equally be a lengthy debate about the deficiencies in the manual system. I am an enthusiast for electronic voting. While I accept the findings of the commission and think it was prudent to delay implementation of the system until there is more confidence in it, having a paper trail would not necessarily be an advantage.

This matter has been debated extensively but I have not heard any substantive reasons for the inclusion of this amendment, nor am I aware of any other country using such a facility. 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 the commission will consider the matter. We should await its further report.

While the commission said no other country was using the system, it should also be said that the only country using a paper trail is Brazil, which has now decided to discontinue its use. While we can always stand on our own feet, we must draw comparisons with our European neighbours in Germany, the Netherlands and Brest in France, and also in the UK, where pilot schemes have been carried out; a paper trail is not used in these countries. The Nedap system allows voters to verify their votes before casting them whereas the printing of a paper ballot raises constitutional and practical difficulties.

If the awareness and publicity campaign is continued and the workings of the machines are explained to the public, they will accept their accuracy, as evidenced by the 2002 general election. Senator Terry asked what could be done to uncover discrepancies. The legislation allows for a legal challenge within 14 days of a vote if there is aprima facie case, although the determination of this is a matter for the courts. If a court decided to investigate a case, there could be a printout of the votes.

I seriously believe corruption could result if there was a paper vote trail. For example, unscrupulous employers might want confirmation from employees as to who they voted for. Equally, if there were two systems, there might be two different results. A Senator clearly outlined how a seat could be lost by one vote and many Deputies are elected or defeated on the basis of a few votes. However, in practical terms, this is not an issue. We have placed our confidence in the commission and accepted its recommendations. It will consider this matter over a period and we should await the outcome of its deliberations.

Those concerned with the 2002 general election results in Meath, Dublin West or Dublin North can take solace from the fact that the commission clearly and unambiguously stated that the system accurately counted the votes. It should surprise no one that I am not prepared to accept the amendments.

It is important we protect public confidence in our voting system. The amendment seeks a viable paper trail which could be used to check the accuracy of the machines. I pointed out to the House examples of anomalies in two constituencies in the 2002 general election. In one example, there were more votes in a box than votes cast and, in another, there were less. This needs to be reconsidered. Senator Terry was concerned with the electronic voting results of the 2002 general election. While the Minister referred to possible challenges to vote results, the figures were not available to make a case within a 14 day period.

Senators Finucane and Kitt referred to the random nature of the manual system. However, we intend to adopt an electronic system which will bring with it some of the flaws of the manual system. One of the greatest advantages of the electronic system is that it will be able to count the votes as they are cast. However, there will be irregularities, as the Minister of State has admitted.

It is important an audit trail or record of votes cast exists. Back-up evidence would be needed if a court challenge to an election result resulted and it is important for democracy that we have such evidence. The entire Opposition, not just Fine Gael, has called for a verifiable paper trail and the public would feel more confident if one were introduced. Senator McCarthy gave the example of the printout received when one carries out a transaction at an ATM machine.

A printout is not necessary. One can look at one's balance on the screen.

A receipt is provided only when requested.

The Senator is too well off. It is the balance that is important, not the receipt.

Following the events at AIB, more customers will look at their balances.

We are discussing elections.

I am pressing the amendment.

Amendment put.
The Seanad divided: Tá, 16; Níl, 25.

  • Bannon, James.
  • Bradford, Paul.
  • Browne, Fergal.
  • Burke, Ulick.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Feighan, Frank.
  • Finucane, Michael.
  • Henry, Mary.
  • McCarthy, Michael.
  • McDowell, Derek.
  • McHugh, Joe.
  • Norris, David.
  • Phelan, John.
  • Quinn, Feargal.
  • Ross, Shane.

Níl

  • Brady, Cyprian.
  • Brennan, Michael.
  • Callanan, Peter.
  • Dardis, John.
  • Dooley, Timmy.
  • Fitzgerald, Liam.
  • Glynn, Camillus.
  • Hanafin, John.
  • Kett, Tony.
  • Kitt, Michael P.
  • Leyden, Terry.
  • Lydon, Donal J.
  • MacSharry, Marc.
  • Mansergh, Martin.
  • Minihan, John.
  • Mooney, Paschal C.
  • Moylan, Pat.
  • O’Brien, Francis.
  • 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.

I move amendment No. 6:

In page 7, line 5, after "vote," to insert "produces a paper copy of each vote cast".

I second the amendment.

Amendment put and declared lost.

Amendments Nos. 7 and 14 are related and may be discussed together.

I move amendment No. 7:

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

This amendment relates to the random nature of the manual system of counting. Several Senators referred to this, having encountered problems in both local and general elections, although I do not think this arose in European elections. These flaws in the system are being carried into the new e-voting system but they should be eliminated and a better system should be devised. The voting machines produced have flaws, as was pointed out at the Oireachtas Joint Committee on the Environment and Local Government. However, the Government did not pay heed to those flaws, as it was intent on railroading this system through. I compliment the independent commission again on its findings. Although it did not refer directly to this matter, we would have had the system, warts and all, if the Government had been allowed to go ahead with it.

I compliment Senator Bannon on this amendment, which I second. I spoke on this matter last night, although the decision has been made and we will not have electronic voting at the local and European elections. According to the Government we will not have an election for another two or three years. If electronic voting is to be introduced at that stage, and there is enough time to do so, there is nothing to stop us from having the correct software package in place.

We should not have randomisation for the next election after June. I spoke last night about the injustices involved in randomisation, which will happen again in other elections if we proceed with the current system. Surely the whole objective of introducing electronic voting is not to speed up the vote but to make the count a fair one. There is nothing to stop the Government from making the system fair for the next election. We should not have randomisation because, no matter what type of election we have, there will be close counts and if the Government does not take action it will be criticised in the future for not acting properly.

I fully support the amendment. I would be happy if a commitment were given to get rid of randomisation and I would welcome reassurances from the Minister of State about the next election, which may be a general election.

I add my voice to those of Senator Bannon and Senator Finucane. We dealt with this last night and I will not repeat myself but Senator Finucane is correct. Software is now available to do things which we could not do in the past and this is a good example. The aim of electronic voting is not speed but accuracy and, therefore, trust and confidence in the system is important. This would be very simple to do and I urge the Minister of State to consider it. This matter is not as urgent as it was because electronic voting is not being introduced. I have seen people affected by the non-random provision and it is incorrect. It does not create confidence or trust, which should be among our objectives. I urge the Minister of State to consider it in the future, if not on this occasion.

The non-random way, as Senator Finucane described it, is the best way to go and should be considered. It is probably irrelevant in the context of elections on 11 June but the software is there for the future, when we will have electronic voting, and we should look at the non-random provision. I have fought ten general elections and I know well how unfair the system can be, particularly with the division of surpluses. On the other hand, in Seanad elections, and particularly on the vocational panel, there is a fairer system for the division of surpluses. The best way is to use new technology and I hope we consider that option in the future.

I support the amendment. I had no opportunity to address this matter on Second or Committee Stages because of time constraints but this is a sensible amendment. We must accept that the current system of counting is not simply unfair but inaccurate. It can be said with absolute certainty that since the foundation of parliamentary and local government democracy in Ireland we have used this counting system on dozens of occasions. Whether in Dáil or local authority elections, there have been occasions when five or six votes have separated candidates and the wrong people have been elected. Those elected by the people were not allocated the seats to which they were entitled because of the counting system in place. I accept what Senator Quinn and others have said, that this is not particularly urgent today, but in another sense it is very urgent. The system of counting votes we have had in place for decades is not just unfair but inaccurate and it has resulted in the wrong people being allocated seats in town and county councils and perhaps also here in the Oireachtas.

That has to be addressed. I attended several meetings of the Oireachtas Joint Committee on the Environment and Local Government and the Minister for the Environment, Heritage and Local Government gave an assurance that electronic voting phase two, as we called it, would resolve this problem and that the technology would be in place. I could not understand why it would not be in place first day but it would be unforgivable if we do not give a clear indication that once electronic voting is introduced we will have no more random sampling. We will have the correct counting of votes and those who win seats will be those who got enough votes to do so, not those elected by a quirk. I accept that only applies to a minority but it has undoubtedly happened. We recall candidates being defeated or winning by between three and 12 votes. On that random basis of counting, there would have been inaccurate results. If we are advocates of democracy and of doing the job properly, it is essential that we do not have to await phase two of electronic counting. On the first occasion in which electronic voting and counting takes place it must count the entire value of each vote cast and the result must truly represent the will of the people rather than the random, hop of the ball system which we have allowed to remain in place for too long.

I suspect candidates have been elected to all levels of Government, local and national, who do not fully understand the system of proportional representation. Certainly that applies to many of those who cast their votes. If the hundreds of thousands who cast their votes at general elections realised the last seat is given out on a random basis, where there is a narrow margin of victory or defeat, and naturally can be wrong, there would be an outcry. We must provide for an electronic system which will ensure that will not happen again and that the candidates with sufficient support from the people will win the seats.

As I have indicated on a number of occasions, including yesterday, it is the intention to review the count rules, having regard to the calculation and distribution of votes. It affects only surpluses, not eliminations. The review will also cover other areas linked to some arbitrary and random elements of the count. It was made abundantly clear yesterday, particularly by a Member who may have been the victim of the type of random selection under which Senator Finucane and possibly others may have either won or lost seats by a few votes, that it depends on from where the bundle of votes comes. They may come from an area that is not politically advantageous. Sometimes people vote politically and follow through by voting parochially. If we are to resolve this issue, this is the time to do it.

While we all agree that the principle of electronic voting is more efficient, more user friendly and faster we want to ensure 100% accuracy and to eliminate the random elimination. In theory it is all important now but, in practical terms, it does not kick in this time because we are reverting to the traditional system. I give an assurance that further legislation on count rules will be introduced. We will then have an opportunity to discuss the issue and hopefully it will be used for the next general election. Even if we have electronic voting for a presidential election, it would not affect that in any way. As there would be only one seat there would be no difficulty; it would be all eliminations.

On my own behalf and on behalf of the Minister I assure the House this is an issue we are anxious to deal with and there is no conflict whatsoever between the various parties or the Independent Members.

Will the Minister of State give an indication as to when he will introduce the legislation? I appreciate he has given a commitment to the House. The amendment proposes that any system adopted for counting votes should be non-random. As the Minister of State said, what members of the Government parties and this side want is accuracy, that is, that the true intent of voters is fully acknowledged and that there is an accurate result. Can the Minister of State give us the date on which he intends to introduce the legislation?

All I can say is that it will depend on various factors, not least of which is a report from the Commission on Electronic Voting. I cannot give an indication of the date because it relates to that report. When we have that report there will be a further opportunity to discuss the introduction of legislation on count rules. There is no urgency. The important thing is to get it right. When we have all the information that is required and the legislation on the count rules is prepared, we will bring it forward. I am not being evasive. Nobody could give a precise date.

Amendment put.
The Seanad divided: Tá, 14; Níl, 26.

  • Bannon, James.
  • Bradford, Paul.
  • Browne, Fergal.
  • Burke, Ulick.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Feighan, Frank.
  • Finucane, Michael.
  • Henry, Mary.
  • McHugh, Joe.
  • Norris, David.
  • Phelan, John.
  • Quinn, Feargal.
  • Ross, Shane.

Níl

  • Brady, Cyprian.
  • Brennan, Michael.
  • Callanan, Peter.
  • Dardis, John.
  • Dooley, Timmy.
  • Fitzgerald, Liam.
  • Glynn, Camillus.
  • Hanafin, John.
  • Hayes, Maurice.
  • Kett, Tony.
  • Kitt, Michael P.
  • Leyden, Terry.
  • Lydon, Donal J.
  • MacSharry, Marc.
  • Mansergh, Martin.
  • Minihan, John.
  • Mooney, Paschal C.
  • Moylan, Pat.
  • O’Brien, Francis.
  • 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.
Amendment No. 8 not moved.

I move amendment No. 9:

In page 7, between lines 23 and 24, to insert the following:

5.—As soon as practicable after counting has completed, the Commission on Electronic Voting shall conduct manual mandatory random recount of the voter-verified records——

(a) in the case of a general election, presidential election, European Parliament election, or referendum, of at least 10 percent of the constituencies collectively;

(b) in the case of a local election, of at least 25 local electoral areas,

and shall immediately publish the results of those recounts.".

I second the amendment.

Amendment put and declared lost.
Amendment No. 10 not moved.

I move amendment No. 11:

In page 7, line 46, after "may" to insert "by order".

This is a technical amendment. The Minister's reputation and his standing within Fianna Fáil has fallen greatly because of the manner in which——

The House is not discussing the Minister's reputation or his standing in Fianna Fáil. The Senator should speak to the amendment.

There are no votes in that sort of stick.

It is a technical amendment to strengthen the legislation further.

And the Minister's standing.

I second the amendment.

As I stated last evening, I do not consider it necessary for instructions to be included in a statutory order. Any instructions issued will be public documents, not just confined to a party. It is the intention that most of the instructions will be in the guidelines to be issued under section 31 of the Bill. These guidelines will be available for public scrutiny. The same applies for other legislation.

Amendment, by leave, withdrawn.

On the Order of Business today it was agreed that Report and Final Stages of the Electoral (Amendment) Bill 2004 would conclude not later than 4 p.m. As it is 4 o'clock, I am required to put the following question: "That Fourth Stage is hereby completed and the Bill is hereby received for final consideration and passed."

Question put.
The Seanad divided by electronic means.

Given the importance of the issue, I request a manual vote.

As Senator Finucane is not a teller, will the Senators supporting his request please stand?

More than four Members rose.

The vote will now proceed.

Question again put.
The Seanad divided: Tá, 26; Níl, 15.

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

Níl

  • Bannon, James.
  • Bradford, Paul.
  • Browne, Fergal.
  • Burke, Ulick.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Feighan, Frank.
  • Finucane, Michael.
  • Henry, Mary.
  • McHugh, Joe.
  • Norris, David.
  • Phelan, John.
  • Quinn, Feargal.
  • Ross, Shane.
  • Ryan, Brendan.
Tellers: Tá, Senators Minihan and Moylan; Níl, Senators Bannon and U. Burke.
Question declared carried.