This Bill responds to a judgment of the Supreme Court on 13 November 2006 concerning the nomination of Dáil candidates who are not members of registered political parties. The outcome of the judgment is that there is currently no statutory mechanism to regulate the nomination of such candidates standing for election and this must be addressed before the general election.
For clarity and context, I will outline briefly the background to this matter before proceeding to deal with the detail of the court decision and its implications. The assentor provisions for nomination of candidates were enacted in 2002 to provide an alternative to election deposits where candidates are not members of registered political parties. This followed the High Court judgment in the Redmond case in 2001 which found the deposits system to be unconstitutional. The assentor provisions, as enacted, required the nomination papers of Dáil candidates to be assented to by 30 persons, excluding the candidate and any proposer, who were registered as Dáil electors in the constituency concerned. Each assentor had to sign the candidate's nomination paper, which was usually lodged at the main local authority offices.
In legal cases last year, there were several grounds of appeal to the Supreme Court and the State was successful on all but one point. In particular, the court upheld the main requirement for obtaining 30 assentors to help ensure the proper regulation of elections but it struck down the provision requiring personal attendance by all assentors in a single location in a constituency, on the basis that it can involve excessive demands on the time of assentors. The court found that the provision is disproportionate to the objective to be achieved, namely, the due authentication of nomination papers and declared section 46(4B) of the Electoral Act 1992 unconstitutional.
In light of the judgment, the statutory mechanism which regulated such candidates standing for election is no longer valid. However, regulating access to the electoral process is a common feature in most parliamentary democracies and is widely seen as necessary to discourage an overly large number from contesting an election. Indeed, this view is endorsed in the Supreme Court judgment, which supports fully the right of the Oireachtas to legislate in this area. It stated:
The Court is satisfied, and considers it self-evident that the State has a legitimate interest in regulating the conduct of elections by law, subject to the Constitution, in the interests of, inter alia, protecting and maintaining the integrity and efficacy of the electoral process for Dáil Éireann as well as ensuring that those elections are conducted free from abuse and in an orderly fashion consistent with democratic values acknowledged by the Constitution.
It further stated: "In the view of the Court the State has a legitimate interest, founded on rational considerations, in being concerned that the integrity of the electoral process is not tainted by frivolous candidates or a seriously excessive number of candidates on the ballot paper."
In Ireland, the purpose of any general election is to elect members to Dáil Éireann in accordance with the Constitution with a view to Government formation. It follows that elections must have some reasonable structure and coherence to help the voter see what the impact of their vote might be on the eventual composition of the Dáil and to exercise a meaningful choice towards that objective. Having an overly large number of candidates could impact on the democratic right of voters to play a meaningful part in the political process. As always, in considering these matters, there is a balance to be struck. In this case, the balance is between providing for a reasonable test of the bona fides of a prospective candidate and not setting that test so high as to unduly restrict people from seeking election.
Having considered the issues involved, we now propose to the House the measures provided for in this Bill. I will first deal with the form of the Bill. Members of the House are aware that electoral law is at times quite complex. Therefore, we have tried to simplify and make more understandable the provisions in this Bill by avoiding, as far as possible, inserting isolated textual amendments to the law which are not easy for anyone to follow. The Bill presents a continuous text dealing with nominations generally and incorporating within that text the specific new provisions arising from the court judgment. This will allow us all to place the new provisions in their proper legal context and will give us a single text that can be more easily understood and implemented. The consequence of this more user-friendly approach is that the Bill repeals and re-enacts without amendment most of the existing settled law relating to nominations generally. In my comments, I will focus on the new provisions being proposed to meet the terms of the Supreme Court judgment. At this stage in the electoral cycle, our attention should be primarily on those limited new provisions which we need to put in place before the upcoming general election.
In terms of substance, the Bill provides for two alternative mechanisms to regulate the nomination of Dáil candidates who are not in possession of a certificate of political affiliation. These are as follows: first, by way of assents requiring the completion of statutory declarations by 30 assentors in the constituency which may be witnessed by a commissioner for oaths, a peace commissioner, a notary public, a garda or a local authority official, or second, by way of the candidate, or someone on his or her behalf, lodging a deposit of €500 with the returning officer before the deadline for receiving nominations.
As regards the assents procedures, the proposed shift to statutory declarations will allow a much more flexible system than before under which each assentor had to travel to the local authority office to sign the candidate's nomination paper. It will no longer be necessary to turn up in person at the local authority office as assentor signatures will now be on documents attached to a nomination paper as opposed to being on the actual paper. This break in the physical link with the nomination paper allows for more flexibility in the time for assents to be obtained and the Bill avails of this opportunity.
The five categories of authorised persons who may witness the statutory declaration will also ensure a wide spread of locations with easy access for assentors. For example, under the Solicitors (Amendment) Act 1994, every practising solicitor, of whom there are more than 6,000 nationally, has all the statutory powers of a commissioner for oaths. The form of statutory declaration will be prescribed by the Minister and, as part of the checks and balances, relevant details of an assentor will have to be included on the declaration. An assentor will also be required to present prescribed photographic identification to the person who is witnessing the declaration.
Rather than obtaining 30 assents, a candidate may instead choose the alternative of lodging a deposit and, if he or she does not do so, their candidature will be deemed to have been withdrawn. The provisions are similar to the previous deposit system which operated until 2001. Notwithstanding the High Court decision in the Redmond case that year, the thinking on a return to a deposit system is informed by comments of the Supreme Court and advice from the Attorney General. To be clear on this point, I will quote directly from the Supreme Court judgment where it refers to the deposit of £300 that was required under the Electoral Act 1992:
In contemporary Ireland it is difficult to comprehend how a sum anywhere in the region of £300 or its equivalent in Euro (or more if inflation is allowed for in the meantime) [that is, since 1992] could be considered a disproportionate measure for such a legitimate purpose or to involve invidious discrimination, given the costs necessarily otherwise incurred by candidates and the possibility, at least in certain circumstances, of a refund of the deposit.
Therefore, in further response to the Supreme Court judgment, the Bill provides that the candidate, or someone on his or her behalf, has the option of lodging a deposit of €500 with the returning officer before the deadline for receiving nominations.
In summary, candidates standing for the Dáil who are not in possession of a certificate of political affiliation may now choose which option best suits their own circumstances — either assents or deposits — to support their nomination. This represents a significant improvement on the previous arrangements and fully meets the relevant constitutional requirements.
This is a short Bill containing three sections. Section 1 is the main provision, amending the Electoral Act 1992, as previously amended, by inserting sections 44 to 52, inclusive, in substitution for the existing sections. These sections cover the nomination of all candidates for election to the Dáil and most of the existing settled law in this area is being re-enacted without amendment. The amendments necessary to meet the terms of the Supreme Court decision are being incorporated, as appropriate, in the re-enacted sections to give a single text relating to nominations generally.
Section 44 restates the law regarding the giving of a public notice at a Dáil election by the returning officer. The public notice sets out the time and place for receiving nominations and related arrangements. A new section 44(b) requires details of the new assentor and deposit provisions to be included on the notice of election.
Section 46 contains the substantive provisions underpinning the two alternative mechanisms to regulate the nomination of Dáil candidates who are not in possession of a certificate of political affiliation. Section 46(5) is a new subsection which provides specifically that either the assents or deposits system must be complied with before the expiration of the time for receiving nominations. A consequential provision is included in the new section 46(2)(b) relating to inclusion of details of the new provisions on the notes to the nomination paper.
The detailed procedures for assents are set out in the new section 46(6). The relevant details of the assentors to be included on the statutory declaration are: the assentor's number and polling district letters on the register of Dáil electors in force at the time of assent; address on the register; contact details; the relevant Dáil constituency on the date of assent where he or she is registered; the name and address of the candidate; and the form of prescribed photographic identification produced and any number on it. An assentor must confirm on the statutory declaration that he or she has not consented to the nomination of any other candidate in the election concerned. Under the Statutory Declarations Act 1938, a person who knowingly makes a false or misleading statutory declaration is liable on conviction to a fine not exceeding €2,539 or imprisonment for a term not exceeding six months, or both. However, under the new section 52(1)(c), a candidate’s nomination will not be invalid where a person assents to the nomination of more than one candidate. Statutory declaration forms will be available free of charge from registration authorities and returning officers.
An assent will be valid in respect of the constituency in which the assentor's address at the time of assent is located at election time. The assent may be made at any time but it may only be used at the next general or by-election in the relevant constituency and it expires when the current register ceases to be in force, notwithstanding that no such election may have been held by then. Responsibility will lie with the candidate or proposer to attach the 30 statutory declarations to the nomination paper and deliver all the documentation to the returning officer by the deadline for receipt of nominations. Where there are more than 30 statutory declarations attached to the nomination paper, the first 30 attached will be taken into account.
Under the new section 52(1)(b), a returning officer may rule as invalid a nomination paper from a candidate who has opted for the assenting alternative if he or she considers that the candidate has not complied with the relevant statutory requirements set out in the Bill.
Instead of obtaining 30 assents, a candidate may choose the alternative of lodging a deposit under the new section 47. A candidate, or someone on his or her behalf, may lodge a deposit of €500 with the returning officer before the deadline for receiving nominations. If a candidate chooses this option and fails to lodge the deposit with the returning officer by the relevant deadline, his or her candidature will be deemed to have been withdrawn. The amount of €500 is reasonable. It is significantly less than the £300, as updated by reference to inflation, in respect of which provision was made in legislation in 1992. Under the new section 48, deposits will be returned to successful candidates, those who receive votes in excess of a quarter of the quota and in certain other circumstances, such as withdrawal of candidature or death. Deposits will otherwise be forfeited.
Section 2 amends the Schedule to the Electoral Act 1997 to ensure that travelling and other expenses that may arise for a candidate or an assentor in meeting the assentor requirements and the amount of any deposit paid will not be regarded as election expenses. Section 3 is a standard provision relating to Short Title, collective citation and construction.
Our democracy is predicated on elections that are fair, orderly and inclusive and it falls to us as legislators to ensure the statutory framework governing the electoral system reflects these principles. Under the terms of this Bill, candidates who are not in possession of a certificate of political affiliation will now have a choice in the mechanism they use to support their nomination. This is a balanced and proportionate response to the terms of the Supreme Court judgment. I commend the Bill to the House.
