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

Before commencing Report Stage, I remind Members that they may speak only once on Report Stage, except the proposer of an amendment, who may reply to the debate on an amendment. Each amendment must be seconded.

Amendments Nos. 2 and 10 are related to amendment No. 1 and all may be discussed together by agreement.

I move amendment No. 1:

In page 6, to delete lines 1 to 4 and substitute the following:

"(8)Parts 1 and 3 of this Act, together with sections 33, 34 and 35 and Schedule 5, shall come into operation on enactment. Part 2, together with sections 30, 31 and 32 and Schedules 1 to 4 inclusive, shall come into operation on such day as the Minister may appoint by order, but only after theCeann Comhairle has received from the Electronic Voting Commission a satisfactory certification of the proposed electronic voting system under the Commission’s terms of reference.”

I always have a problem when Report Stage is taken within a day of Committee Stage because I feel I am repeating myself. While the amendment is not essential, it would improve the Bill no end. The Minister of State explained why he did not believe it was necessary. However, following enactment, it will be necessary for the Minister to make an order bringing these urgent provisions into effect. It would be much more efficient to bypass that necessity by making a commencement order and providing for those parts of the Bill to come into operation immediately on enactment. I made this valid case yesterday and it stands up.

I hoped the Minister of State would consider the amendments overnight and would devise a formula that would put my mind at rest in this regard. It is an important Bill. There is great pressure on the Minister of State not to take amendments so that the Bill will be passed by both Houses before tomorrow. This is why Report Stage is necessary and the issues raised on Committee Stage should be considered. The amendments are worthy of consideration and I urge the Minister of State to accept them.

I second the amendment. I refer to amendment No. 10. The reputation and authority of the Minister for the Environment, Heritage and Local Government has diminished among the public and also among the ranks of his own political party. It is necessary to remind him that we live in a democracy and it is important that this amendment is taken on board. The Minister is still director of elections for Fianna Fáil and he should not be empowered to give advice to returning officers and so on. Perhaps the Minister of State will accept the amendments to safeguard the legislation and our democracy.

Amendment No. 10 provides more power to the Dáil while ignoring the role of the Seanad. At the end of the day, the Minister bears responsibility for the legislation and is taking the flak for it in a number of ways.

The first part of amendment No. 1 reflects what will happen when the Bill is enacted and, consequently, I hope Senator Quinn will accept my undertaking that the commencement order will reflect this point.

With regard to the second part of the amendment, the commission's terms of reference in Schedule 5, together with sections 21 and 22, state the commission's reports will comprise recommendations on the secrecy and accuracy of the system. The Government decided not to use the system at the polls next month in line with its commitment to accept the commission's recommendations. We must await the publication of the commission's next report on which the commission based its conclusion that it was unable to make a positive decision. One might ask why the Government should proceed with the legislation but one of the main reasons for doing so is to give statutory effect to the commission so that it can report. Given the Government's commitment, which is being honoured in regard to the elections in June, no Government would insist on using a system if the commission expressed dissatisfaction with it. It is not necessary to have the second part of the amendment included in the Bill.

The same applies to amendment No. 2. The procedure proposed in subsection (9) is the same as that generally used for commencement orders for many years and there is no need to change it. I agree with Senator Quinn that this is important legislation, but we are doing what is normally done across the board.

With regard to amendment No. 10, there is no constitutional recognition of political parties for the purpose of enacting or implementing legislation. The Opposition parties have all indicated they agree with the use of electronic voting and counting. While there may be differences regarding the detail, the principle is generally accepted. If it was required by law that an issue had to be agreed by all parties in all its aspects, that would be a recipe for ensuring change probably would never take place. Even if the Government was to accept the amendment, the Independent Members who represent various institutions would be ignored. That is probably an inadvertent omission, as Senator Brady said. The same amendment was tabled yesterday and reference was made to ignoring the Seanad then. Even if it was intended, I would not accept it. I gave consideration to Senator Quinn's amendments overnight but my position is still the same.

I thank the Minister of State for his comments and for his consideration of the amendments overnight. I refer to amendment No. 2. By requiring an order to go through the process of approval by the Houses of the Oireachtas, it implies this is not a routine matter. Many routine matters are dealt with by the House. For example, many documents are laid before the House and are not debated. However, this amendment is crucial. Motions are passed without debate on a regular basis and we do not spend time discussing them. We need to send out a message that our democracy is dependent on trust and confidence in our electoral system. On this basis, I believe this Bill is different from many others we pass. I am disappointed the Minister of State will not accept this amendment. It would have been very valuable and useful. If we were starting from scratch again, he would probably have accepted it.

May I contribute?

Senator Bannon cannot reply. Only the mover of the amendment can reply.

There are three amendments under discussion.

Amendment No. 10 has been grouped for discussion by agreement. Does the proposer of amendment No. 1 want to press that amendment?

It is not being pressed.

Amendment No. 2 has already been discussed. Is the Senator pressing it?

I have already spoken on that and, reluctantly, will not move it. I assume that Senator Bannon will be able to reply on his amendment No. 10.

On a point of order, I understand that the proposer may speak on his amendment and also have an opportunity to speak a second time. Therefore, since I have spoken a second time, I assume it will also be possible for the proposer of amendment No. 10 to speak a second time when his turn comes.

I appreciate the point the Senator is making——

I am glad it is appreciated.

Amendment No. 1 is the amendment before the House, which is in the name of Senator Quinn.

I am withdrawing it.

Am I allowed to speak on amendment No. 10?

I call for a quorum.

Notice taken that 12 Members were not present; House counted and 12 Members being present,

Amendment, by leave, withdrawn.
Amendment No. 2 not moved.

I move amendment No. 3:

In page 6, between lines 15 and 16, to insert the following:

"(b) If convicted on indictment, such a person shall be liable to a fine not exceeding €15,000 or imprisonment for a term not exceeding 5 years or both.”.

This is a crucial amendment. I only called one vote last night and it was on a matter connected to this amendment. Those who drafted this Bill have regarded the electronic voting system as no different from our traditional voting system. If somebody wanted to interrupt or damage the whole election under the traditional system, it would be rather difficult. The most one could do, perhaps, would be to steal or set fire to a ballot box or damage a particular polling station. In drawing up the legislation, it was assumed that, on summary conviction, there would be a rather modest fine or term of imprisonment imposed on an individual who impersonated a garda or damaged a particular polling station or electoral effort.

The draftsmen have not taken into account what was at stake in the vote we had last night. Under the new system, if somebody decides to influence the election throughout the country, it is possible to do so by interfering with the software. This has certainly not been taken into account in differentiating between the crimes of impersonation and interference. One should not enter a polling station and steal somebody else's vote. If one does, one is liable to a fine on summary conviction. However, the legislators have not taken into account what could happen in the case of what I would call an indictment conviction. Those who fall under this category decide months or years ahead of an election, either for political reasons or as a result of bribery, to interfere with the software. Their actions damage the election as a whole. We had a vote on this last night and the Government did not accept my point. This amendment stipulates that, if convicted on indictment, such a person shall be liable to a fine not exceeding €15,000 or imprisonment for a term not exceeding five years, or both. This should not be applied to somebody who impersonates somebody else, but it should certainly apply to one who decides to change the outcome of an election either because he has been bribed or for other reasons.

I spent some time on this issue last night and will just touch on the points made. I was strengthening the conclusion that, in proposing this Bill, we have acted differently than we have in respect of three other Bills. One of those Bills is the Garda Síochána Bill 2004, which states an individual who impersonates a garda is liable, on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding five years, or both. On breaches of the new civil liability legislation, the Civil Liability and Courts Bill 2004 states: "A person guilty of an offence under this Part shall be liable, upon conviction on indictment, to a fine not exceeding €100,000, or imprisonment for a term not exceeding 10 years, or both." If one breaks the rules when applying for a position in the public service, one can be fined €10,000 or jailed for up to two years on indictment.

This Bill ignores all that. It only regards the likely culprit as somebody who impersonates somebody else. That person is liable to a slap on the wrist, nothing like the penalties included in the other Bills I mentioned. That is a slip up. This Bill does not take into account that it is possible to interfere with software in a computer, possibly months ahead of an election, thereby changing the election result. That is a serious offence. The penalty in this Bill is a fine on summary conviction, a modest measure although it is an appropriate penalty for conviction of impersonating somebody else. There is a difference and the Minister and the Parliamentary Counsel have not taken it into account in this legislation.

This is an important element. We must differentiate between summary conviction and conviction on indictment. We have not yet done so. Perhaps the Minister has an answer that I did not hear last night but which will put my mind at rest.

I second the amendment. Interference with the voting system would be a dreadful attack on our democracy so it is important that there are deterrents in place. I compliment Senator Quinn on putting down this amendment. He suggests a fine of €15,000 but that figure should be higher. The term of five years imprisonment could also be reconsidered. Our democracy demands that we have proper and strong deterrents in place. They are necessary to uphold law and order and to retain control of our democratic system.

Yesterday I spoke in support of this amendment. The Bill contains a strong provision to punish people who are guilty of offences such as damaging machines and so forth. However, this is a good amendment. Senator Quinn is specific about the type of damage that could be inflicted on the system.

Over recent years, it has become evident that there is a sophisticated degree of knowledge and expertise in this area among lay people. Recently there were reports about a young guy in Germany who designed a worm that affected computer systems. It had a catastrophic effect. The reason he did it was to give his mother's business, which obviously was involved in remedying these situations, a temporary boost. That might be different from what we discussing here but we are living in an age in which some people have no regard for life, let alone democracy.

In recent years we have witnessed some horrific terrorist atrocities. What if somebody has a malicious intent to interfere with the software in this system to produce an inaccurate result or, more maliciously, to affect the result in a way that favours a political belief? The consequences are unthinkable. We must be specific about the punishments to be applied for breaking the law in this regard. I appeal to the Minister to consider this amendment favourably and to take account of the mind of the dangerous law breaking individual who has a sinister motivation and the expertise to interfere with the software in the system. That is a possibility we cannot rule out or ignore. There is provision to deal with damage to the machines but we must take it a step further and accept this amendment.

Senator Quinn has brought it to our attention that section 2 does not include software. I refer the Members to the citation in section 1 which provides that the Bill must be read in conjunction with a number of other Acts such as the Electoral (Amendment) Act 2001, particularly section 138 of that Act. It applies to referenda and presidential elections and clearly refers to software.

With regard to the amendment, I do not take issue with what Senator Quinn stated. I can offer him the reassurance I offered yesterday, that we will come back to this subject at a later stage when we receive the recommendations from the commission and the Government makes its decisions on them. It will be necessary to introduce legislation on the electronic voting and counting system and this will be dealt with in the context of that Bill. I do not see a difficulty with the suggestion but I will have to be guided by legal advice and particularly by the Parliamentary Counsel. The summary conviction fine is only €3,500 and the indictment should and would be much higher.

However, the impression should not be given that when electronic voting is in place the system will be capable of being hacked. The machines, either the electronic voting machine or the PC, are stand alone machines and are secure from hacking. The equipment will be under the supervision and control of the returning officer. It can be difficult for one person to cause damage so it is important that the fines reflect this point. I will look at this matter and take legal advice and the advice of the Parliamentary Counsel. I am sure it can be rectified before electronic voting is implemented.

In business circles one is told about phrases one should never believe. One is: "I will still love you in the morning, darling." The others are: "The cheque is in the post", "I am from head office and I am here to help you" and "The computer system is secure". I do not believe that there is such a thing as a secure computer system that cannot be hacked. Such systems have been hacked.

I accept the Minister's explanation that I should have taken last night's comments into account, as well as other Bills which refer to software. However, the mere fact that interference with software is included is recognition that it could happen. What happens if somebody interferes with the software in a planned and premeditated manner? They might decide, months or even years ahead of an election, to do it. Senator McCarthy mentioned motivation. We do not know the motivation.

Look at the anarchists who turned up on websites in the weeks before May Day. There are people who, simply for the sake of anarchy, would love to wreck a system. Under this Bill, if somebody goes to all the trouble of wrecking the system for whatever motivation and has the expertise to do it, he or she will be fined €3,500 or sentenced to 12 months in jail. This is saying, in effect: "You are very bold and naughty and this is what we will do."

I was moderate in the amendment. The Bill only refers to summary conviction with penalties of a €3,500 fine or 12 months in jail or both. That type of fine is acceptable for somebody who impersonates a voter. However, somebody who premeditatedly decides to interrupt the election, probably an anarchist, can decide to do it for the fun of it because they are the only penalties that can be applied. I would have preferred a fine of €1.5 million. However, I decided to be moderate and insert the figure of €15,000. I believed it would be easier to argue the case and easier to accept. I am concerned about people such as those May Day anarchists who said they would wreck the accession party in Dublin for no purpose other than to get publicity for damaging it. Somebody could well do this in the knowledge that the highest fine is €3,500.

I am delighted the Minister has recognised that we have not taken it into account. He has no great issue with the point I have made and has promised to come back with an assurance. However, the purpose of bringing legislation through these Houses is to correct and improve it so that we can stand over it and release it as good legislation. I do not like allowing this through while recognising it is faulty and saying we will come back some other time because there is no urgency at present. If we allow the Bill to be passed and enacted in a manner that leaves such a flaw, we will be at fault. While I accept the Minister of State's assurance, I am unhappy about accepting an assurance that recognises the Bill needs improvement but that will not be done now, rather at some later point. I am unhappy about accepting the Minister's view in this case.

Amendment put.
The Seanad divided by electronic means.

On a point of order, I pressed my button but nothing happened.

I observed something.

There must be a technical problem.

There should be a manual vote.

Senator McHugh should have told the tellers before the results were called.

It was only just brought to my attention. I assumed it had worked. I had confidence in the system.

I call for a vote other than by electronic means. It will be pedal rather than manual.

Amendment again put.
The Seanad divided: Tá, 16; Níl, 26.

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

Níl

  • Brady, Cyprian.
  • Brennan, Michael.
  • Callanan, Peter.
  • Dardis, John.
  • Dooley, Timmy.
  • 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’Brien, Francis.
  • Ó Murchú, Labhrás.
  • O’Rourke, Mary.
  • Ormonde, Ann.
  • Scanlon, Eamon.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.
Tellers: Tá, Senators McCarthy and Quinn; Níl, Senators Minihan and Moylan.
Amendment declared lost.