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

As the cream of the select committee's membership is present, we will continue our consideration of Committee Stage of the Electoral (Amendment) Bill 2004. I welcome the Minister for the Environment, Heritage and Local Government, Deputy Cullen, and his officials. Is it agreed to continue until 1 p.m?

No, I propose we conclude at12.30 p.m.

Is that agreed? Agreed. As we adjourned yesterday having completed section 6, we will resume on section 7.

SECTION 7.

Amendment No. 56 is related to amendment No. 29 and both amendments may be discussed together by agreement.

I move amendment No. 29:

In page 8, line 23, to delete "modifying" and substitute "amending".

Taken collectively, sections 7 and 15 and a number of Schedules are intended to modify provisions in a range of Acts. Put simply, this means these sections are designed to effect non-textual amendments, which are unwieldy and make our legislation unreadable. The use of these amendments is discouraged by the Government's White Paper on better regulation. If they are to be made, it should be done in an up front and textual manner. My amendments to these provisions are designed to make the amendments textually.

Furthermore, during our discussions on the source codes yesterday, the Minister statedseveral times that neither he nor his Department had had contacts with the commission.

I clearly stated that I had no contacts with the commission and that, in making all documents available, the Department has many contacts.

I would like to see the record of what the Minister said.

I was quite clear.

If I remember correctly, he stated it would be inappropriate for contact to take place between the Department and the commission.

The Deputy should check the record.

We will not dwell on this disagreement.

Surely the Minister should have paid members the courtesy of informing them that contacts had taken place between his Department and the commission on the source code, an issue we discussed at length yesterday, and that major difficulties had arisen as regards indemnifying the commission's members against damages in the event of the details of the source code falling into the hands of competitors. The issue features on the front page of today's edition ofThe Irish Times. It is a little odd that I must read about the matter in a newspaper given that we were considering the relevant legislation yesterday.

The Minister continually informs us that he is providing as much information and being as open as possible. When we discussed the source code yesterday, difficulties experienced by the commission in obtaining details from NedapPowervote on the source code were not mentioned. The article in question states:

The Government has been forced to agree to a last-minute indemnity for the Electronic Voting Commission against legal action after hearing that the commission was set to refuse to approve the new e-voting system without such a guarantee.

The move follows the refusal of the provider of the new system—

We wasted considerable time yesterday through repetition. I ask the Deputy to make a contribution relevant to section 7. He has made his point about yesterday's proceedings.

The Government has tabled an amendment on this issue.

Why did the Minister not inform the select committee about the matter yesterday?

It is not for me to speak on behalf of the commission.

The Minister was asked direct questions relevant to this matter. Will he clarify whether the story inThe Irish Times is accurate?

No, the Government has not been forced to do anything.

In that case, why has amendment No. 75 been tabled?

It arose because a request was made for an indemnity.

Members who have not read today's edition ofThe Irish Times will be at a disadvantage. We have more than 100 amendments with which to deal.

We are at a disadvantage in thatThe Irish Times has been briefed, either by the Minister or the Department. We are trying to deal with the legislation but we are being left in the dark.

I assure the Deputy, it is not being briefed, either by me or the Department.

We will deal withThe Irish Times at a more appropriate time. We should concentrate on amendment No. 29 in the name of Deputy Allen.

It is deplorable that the Minister again suppressed important information yesterday and did not make it available to Members of the House. Yesterday we discussed at length amendments in regard to the source code. We discussed all aspects of the source code. A major problem arose in regard to indemnity for the commission yet we were not informed about it.

The Minister gave me the impression that there was no contact between him or the Department and the commission. He dared not have any contact with it, yet I read on the front page ofThe Irish Times that there has been more than contact; that the Minister has agreed to give indemnity against legal action to the commission. The newspaper also stated that there was a stand-off between Nedap-Powervote — the suppliers of the system — and the Department of the Environment, Heritage and Local Government over access to the source code.

The Deputy has made his point. We are dealing with amendment No. 29. The Deputy is free to discuss it, otherwise we will move on.

There is no point in us spending hour after hour in here scrutinising——

Nobody is forcing the Deputy. We are trying to facilitate him.

Can I finish?

We wanted to allow more time but Deputy Allen wanted to leave early.

On a point of order. We were not scheduled to sit at all today.

We do not have as much time as we would like. I urge that we use it efficiently, rather than repeating ourselves over and over. The Deputy made his point about what appeared inThe Irish Times, the Minister denied certain aspects of what was alleged. We can return to this matter on another day. I ask the Deputy to concentrate on the amendment before us.

There was no scheduled sitting for today; it was agreed to sit to facilitate the Minister. The scheduled sitting was for Thursday. We made a decision yesterday at the last minute to sit for part of today. It is not done to facilitate me; it was done to facilitate the Minister.

The Bill could have been dealt with yesterday.

It could not have been dealt with. It would have been most convenient for the Minister if we dealt with it yesterday.

There will not be any one-way streets. I would appreciate if the Deputy would deal with the amendment before us.

I am dealing with it. However, I wish you to note that the Minister suppressed information yesterday when we were dealing with the important issue of the source code which I set out as one of three core issues in the legislation. The same case applies to amendment No. 56.

Amendment No. 29 is textual. The use of the word "modifying" has been approved by the parliamentary counsel and is in line with previous practice.

Amendment put.
The Committee divided: Tá, 4; Níl, 6.

  • Allen, Bernard.
  • Bruton, Richard.
  • Gilmore, Eamon.
  • Sargent, Trevor.

Níl

  • Cregan, John.
  • Cullen, Martin.
  • Haughey, Seán.
  • Lenihan, Conor.
  • Moloney, John.
  • Power, Seán.
Amendment declared lost.
Section 7 agreed to.
SECTION 8.

Amendment No. 31 is consequential on amendment No. 30 and they may be discussed together, by agreement.

I move amendment No. 30:

In page 8, between lines 31 and 32, to insert the following subsection:

"(2) The returning officer or local returning officer shall obtain from the Department of Justice, Equality and Law Reform a list of persons who have been given security clearance for the purpose of working on voting machines or counting machines.".

Section 8 deals with the preparation of voting machines. I ask that there be some cognisance of the fact that there are obviously some very sophisticated but perhaps malevolent people who pride themselves in their ability to cause mayhem in the information technology world. Many of these have been investigated and are known to the Department of Justice, Equality and Law Reform. One of the most interesting challenges for anybody motivated by an interest in undermining any electronic system would be to get a job working on that system courtesy of the Department of the Environment, Heritage and Local Government. It would be no harm for this Department to liaise with the Department of Justice, Equality and Law Reform to ensure that anyone known to the latter Department for creating viruses and committing other misdemeanours would be pointed out. Perhaps the Minister will take my amendment into account and I hope it is for the good that it will be accepted.

The returning officers have employed staff for elections over the years without such clearance from the Garda. The amendments would probably be unworkable in the short term available to returning officers between the calling of a poll and polling day, which, as the Deputy knows, can be as short as 18 days in respect of a general election.

While I accept the intent behind the amendments, this is a matter to be left to the returning officers in the discharge of their statutory duty. I will consider including the subject matter in the guidelines referred to in amendment No. 85 to section 31. In those circumstances, I ask the Deputy to withdraw amendment No. 30. I understand the intent.

What is the position on general elections?

A general election can be held as soon as 18 days from the calling of a poll. Returning officers would not have time in such a period to do the sort of work suggested in the amendment.

That is not an answer——

The Department of Justice, Equality and Law Reform would be the body asked to bring forward any list of, or doubts about, persons being considered for employment.

The returning officers have a statutory duty. There is no question but that they would be doing that to which the Deputy refers and they are obliged to ensure those they employ are fit and proper persons.

It is as well to let them know in legislation.

As I said to the Deputy, I will consider the subject matter referred to in amendment No. 85 to section 31.

I support this good amendment. I find it amazing that the Minister is saying time does not allow for what it recommends. Is he trying to tell us that until such time a poll is announced, no arrangements are put in place in anticipation of that poll and that nobody knows who the returning officer will be? I find it incredible that arrangements are only put in place when a poll is declared.

If everything goes as the Minister plans, in June there will be four different ballots. Non-nationals will be voting in the county council and urban district council elections. There will also be the referendum and the European elections. People will enter a polling booth and present their ballot papers to the returning officer and unless there is a trustworthy returning officer, checked out for security reasons, there could be widespread abuse of the system. How will this be addressed? I presume the presiding officer will have a series of buttons which he will press in accordance with the wishes of the voter and if he or she is dishonest he or she could play "old Harry" with the system.

One entering the polling station with an L in front of one's name could be allowed to vote in the four different ballots and therefore it is essential that there be an honest presiding officer.

A learner voter.

Or a learned voter. Obviously he will not be voting for the Government if he is such a voter. It is essential that there be clearance for the people in question. There has been a mad, headlong rush to introduce the electronic voting system and another serious flaw is now being uncovered.

Will the Minister explain further? Is it correct that the disc is installed in the voting machine on the morning of the election by the presiding officer?

The returning officer will do it.

Is it the case that the machines are then delivered to the polling stations?

That is the procedure exactly.

At what point does the returning officer put the disc into the machine? Is it on the day of the election or a couple of days before it?

Before the poll starts but it is a matter for the returning officer as to when he or she does it. It might be an hour before or whatever.

What is the position in big constituencies? The returning officer cannot be at every polling station simultaneously. Presumably, therefore, the returning officer must put the discs into the voting machines. Does the returning officer do this personally?

It is a matter for the returning officer how he or she organises the procedure. Presumably he or she could be there with a number of staff putting the discs or modules into the machines.

Presumably that has to be done at least the day before if the voting machines are to be delivered on time to polling stations.

Again, this is a matter for the returning officer. The Deputy is correct in some respects but it is up to the returning officer how he or she organises his or her own area, as has always been the case. It is the same as organising the boxes beforehand — the staff got them the night before an election. Whether they were sent out the night before, the following morning or during the night varied between different returning officers. The point is that everything has to be ready for when the poll opens at 9 a.m. or whenever it is set for, whether that is 8 a.m. or 7 a.m.

Between the point at which the returning officer puts the disc into the voting machine and the voting machine is delivered to the presiding officer in the polling station, what is in place to prevent the disc being tampered with or exchanged?

These are all matters for the returning officer and will all be the same as they have been.

They are not the same as they have been because this is a different system. I am just asking the question. I presume if the returning officer puts the discs into the machines and the machines have to be delivered to the polling stations, in practice it probably will be the day before. The Minister stated that the returning officers' staff would do this.

They have the statutory obligations under this system.

What is there to prevent the discs being tampered with in the interval between being put into the machine by the returning officer and being delivered to the presiding officer?

It is locked and sealed when it is put into the machine and is maintained under high security, which is a matter for the returning officer.

How is it maintained?

That is a matter for the returning officer.

Will the Minister describe the seal? One would not put wax into a voting machine.

It is a plastic seal with a number on it which is checked throughout the process.

Will the Minister describe the physical process? Does the machine have to be opened and closed again or is the disc inserted into a port?

This is a matter for the returning officer. It is not a matter for me.

With respect to the Minister, it is a matter for him. This is critical.

It is not.

It is critical.

It is critical for the returning officers to do their job properly.

The Minister told me that the returning officers will put the discs into the machines but I want to know what is there to prevent the disc being tampered with before it reaches the presiding officer. The Minister told me there is a seal and I am trying to imagine this plastic seal.

The best thing to do is to give the Deputy the full operator's guide to the voting machine if he would like to study it. He is more than welcome to go through it.

No. I just want an answer.

These are the arrangements——

The Minister does not know.

——for the returning officers. They are not arrangements for me. I will not tell each returning officer how to organise himself or herself. The returning officers have their own statutory responsibilities in this regard as they always had. Nothing changes — it has been the same for decades. The same security arrangements, etc. remain in place.

That is not the case and that is where the Minister is wrong. For decades we had a system with which we are all familiar. The Minister is changing it. We know the returning officer will put the voting disc into the voting machine at some point before it is delivered to the polling station. For all kinds of practical reasons, that is likely to be the day or even a number of days before polling. It will not be the morning of polling or ten minutes before the polling stations open. Therefore, there is a time gap within which I am concerned the disc might be tampered with or exchanged. I want to know what is in place to prevent that happening.

The Minister told me there is a plastic seal and from my limited knowledge of computer technology I am trying to envisage how a plastic seal would work. Where does the disc go in?

Chairman, perhaps I could ask my officials sitting beside me to answer these technical questions. They have an intimate knowledge of the machines.

We must go into private session to do that. Is that agreed? Agreed.

The committee went into private session at10.37 a.m. and resumed in public session at10.39 a.m.

If members want the operator guides, I am happy to supply them.

That would be helpful.

It is odd to see a Minister struggling with an instruction book to give us answers to assist in the fundamental change to our democratic system. The use of security firms was mentioned when the committee was in private session. Is the handing over of the security process to private security firms another new departure?

There is no change there. That has always been the case.

I thought there was a reference to gardaí or security firms.

They have always had that choice. There is no change in this.

Were they used in the past?

In some cases when gardaí were not available. There is no change in the procedure.

Is the amendment being pressed?

The Minister indicated the point was valid but I do not see it in amendmentNo. 85. Is he referring to Report Stage?

I shall come back to it on Report Stage.

I will withdraw it on that basis.

Amendment, by leave, withdrawn.
Amendments Nos. 31 and 32 not moved.

I move amendment No. 33:

In page 8, subsection (4), line 46, after "section 11.” to insert “The lock and/or seal used must be of a type that cannot be replicated, and that will indicate in an obvious manner any attempt at tampering.”.

The previous contribution by Deputy Gilmore touched on the reason for putting down this amendment. It seeks to insert that the lock and seal must be of a type that cannot be replicated and would indicate in an obvious manner any attempt at tampering. This arises from the response to the freedom of information request which indicated that since September 2002 the Department had a report suggesting not only that there was a discrepancy in votes, the main focus of the response, which Mr. Green explained to the satisfaction of many.

It shifted the focus from a perhaps more serious outcome, the finding that although the seals were as described, indicating that they were tamper-proofed, they could in fact be removed and put back. Has the Department learned any lessons about that from the pilot scheme? I did not seek the information but the Department may have more detail. It was a worrying revelation that in the pilot scheme the seals were not actually tamper-proof, unlike the old system of wax and string with which it would be difficult to tamper without making it obvious. This amendment might reassure people that the lessons have been absorbed.

The guidelines to be issued in accordance with amendment No. 85 in section 31 will cover this. In the circumstances I ask the Deputy to withdraw the amendment. The seal will have a number which the presiding officer must check before the poll commences, in accordance with section 9. The lock cannot be opened without breaking the seal which cannot be refixed. The form used is retained as part of the election documentation for scrutiny if necessary.

Were there broken seals during the pilot scheme? The response from the Department indicated that there were examples of seals being broken and reattached. Can the Minister clarify that matter to show whether a lesson has been learned and there has been change?

The lessons have been learned. The seals which broke had been put on incorrectly. Now there are clearer instructions for putting them on and to ensure that they do not accidentally break. The Deputy is right that the seal on the outside of some machines had been broken but this was clearly because of the way it had been attached and it broke in transit. When the returning officers checked to see whether there had been any tampering with the seal on the module it was fully intact so they used their common sense.

Can the amendment be taken on board? Will amendment No. 85 be brought in on Report Stage or will it be a separate document?

The guidelines will cover the matter which will be issued in accordance with amendment No. 85. The returning officers will receive guidance to ensure they put the seals on correctly. That is the issue.

If they do not will they be open to question?

If people do not do the right thing there is always the possibility that something will go wrong. We try to eliminate as much human error in the process as possible. There is human interaction in any effort or matter with which we deal in the election. We want to ensure that people do it correctly. We will give them further guidance on the basis of what happened in the pilot scheme to ensure that does not recur. It is very simple.

It is very simple.

If a person does not do what he or she is supposed to do there is always the possibility that something will go wrong.

Then we come to amendmentNo. 34 but effectively if something goes wrong it is not grounds for declaring a result invalid. We have an amendment on a further section. Is it the case that it is simply too bad if it goes wrong?

No, I would not take that kind of haphazard approach. It is not. We learned from the pilot scheme what features did not run as well as they should and we examined why. In this instance it was clear that the seals were not properly put on and we are issuing much clearer guidance part of which training is to show how the seals should be put on the machine.

Is this done in the hope that everything will go fine?

There is always human interaction with everything that we do.

I want to debate the section so when the amendment is disposed of I would like the Chairman to go back to the section.

Is the amendment being pressed?

I need to see the guidelines so I withdraw it until Report Stage.

Amendment, by leave, withdrawn.
Question proposed: "That section 8 stand part of the Bill."

This section deals with the preparation of the voting machines, the programming of the software and the associated security. In the course of yesterday's discussion we touched on this when we discussed the availability or not of the source code which is central to the provisions in this section. I raised the difficulties of a person who wished to make a submission to the commission. This person did not have the source code, asked the commission if it had or could get the source code and was left with the impression that the commission did not have it. I mentioned the difficulty that could create for the commission whose terms of reference include examining and reporting on the security and safety of the system. I raised the difficulty not having the source code would cause for the commission in carrying out the mandate it has been given under its terms of reference, particularly as it must report by 1 May. I asked the Minister whether the commission had been in touch with the Department on that issue. The Minister replied that he did not want to contact the commission because it is independent and so on. I accept that is, and should be, the case. He left me with the impression that there had been no communication between the commission and the Department on this issue. Last evening when I left this committeeThe Irish Times contacted me and asked for my view on a story which it would publish today. According to this, the commission looked for the source code and was told it could not be provided because it was the commercial property of Powervote, and that it could receive the source code only if it was indemnified, which is the purpose of amendment No. 75 to be discussed later.

The Minister should tell this committee what communication has occurred between the commission and his Department on this issue. We should know whether the commission has the source code. If it does not, is it the case that we must await the enactment of the Act, which will indemnify the commission under amendmentNo. 75, before the commission can get the source code? If so, is the commission now in a position to report on this by 1 May? The Bill with which we are dealing establishes the commission on a statutory basis and gives statutory underpinning to its requirement to report by 1 May and to its terms of reference. The information which the newspapers have provided, and which we could have been given yesterday at the committee but were not, raises the question of whether the commission will be in a position to fulfil the mandate it received and to report on the safety and security of the system by 1 May.

If the commission has the source code, when did it receive it and did it have sufficient time to examine it? If the commission feels that it is under a constraint to the extent that an amendment must be introduced to give it indemnity would it have been in a position to obtain the advice necessary to enable it to make an informed report and recommendation on the issue? The story in today's edition ofThe Irish Times raises the question of where exactly we are on electronic voting. As this section of the Bill deals with this issue of the programming of the system and the security attaching to it, the Minister should take the opportunity to clarify the position now.

I attempted to raise this issue earlier and the Chairman fairly sat on me. Yesterday I said that in the event of a legal challenge the courts would not have access to the details of the source code which is owned by a non-national because they do not have the power to subpoenaa non-national. The Minister did not then disclose that behind the scenes he was preparing to indemnify the commission against damages because it was seeking details of the source code from the owners. What indemnity has been given? How could it be given when we have not passed the Bill?

Questions have been raised in Holland — a place the Minister often mentions — about the verifiability of the voting machines there which are the same as the machines used here. Attempts to retrieve the source code from theWet openbaarheid van bestuur, a law covering open government, failed because the source code is the producer’s intellectual property. The Minister has stated that the results are to be made available on demand by the courts but a similar demand on request by the courts in the Netherlands has failed because the source code of the ballot is the property of the voting machine manufacturer. Section 28 of the Electronic Commerce Act 2000 states:

Nothing in this Act shall be construed as requiring the disclosure or enabling the seizure of unique data, such as codes, passwords, algorithms, private cryptographic keys, or other data, that may be necessary to render information or an electronic communication intelligible.

This means that the compulsory seizure of the source code required for ballot verification by the courts, or Minister Cullen or the Minister of State, Deputy Brian Lenihan, would be illegal under present legislation. The anti-globalisation group to which the Minister referred, the Irish Computer Society, has stated that e-voting should not exist without some sort of voter-verified audit trail. There are serious questions regarding the rights of our courts under present legislation to access the source code. What arrangements has the Minister made with the commission on indemnity? What indemnity has been given and how could it be given ahead of the passing of this Bill, when the Minister has tabled an amendment to the Bill to allow indemnification? Does he anticipate approval of that section? Will the source code now be made available to those who wish to examine it, who have made submissions, or will it be for the eyes of the commission members only? All the very relevant information which could have been given to this committee was suppressed.

I want to clarify something.

The key questions are as follows: Have the Minister and his Department entered into an arrangement with the commission? What indemnification has been given ahead of the legislation? If the Minister says it has not been given and we must await the passing of the legislation how can the commission examine the source code by 1 May and reach a credible conclusion?

The source code is the elephant many want to see at the centre of the floor but are not allowed to see and that is the subject of the story on the front page ofThe Irish Times today——

We are givingThe Irish Times a great plug here today.

The Minister gave it the plug.

Do the members not read any other newspapers?

We have to read it to see what the Minister should be telling us. The article implies there could be indemnities for considerable amounts for the electronic voting commission against legal action. There is also the prospect of allowing for compensation to be paid to the company in the event of information being leaked. Has the Department factored in moneys for an indemnity action taking place? As this is a Dutch system, is the source code in Dutch or has it been translated into English or Irish?

Once again, the Government establishes an independent commission, only for members of the committee to second-guess what it will and will not do.

With whom the commission wants to communicate is entirely its own business.

That is not what was asked.

From whom the commission wants to seek information and at what pace is entirely its own business. I am not sitting on Committee Stage to second-guess what the commission is doing. As I said yesterday, my Department will continue to facilitate any requests from the commission.

The Minister did not say that yesterday.

Deputy Allen wants——

Will the Minister answer the question?

I am answering it.

The Deputy is welcome to ask further questions after the Minister has concluded.

These are matters for the commission. The Deputy is attempting to put me in a position, which he did valiantly yesterday, to second-guess the commission and inform him what requests it has made, to whom and whether it is in possession of the source code. I do not know the answers to those questions.

What arrangements has the Minister made with the commission?

These are matters for the commission.

What actions has the Minister taken?

I am not getting involved with the Deputy on behalf of the commission. He has posed numerous questions which I am sure will be answered when the commission publishes its report. I will not second-guess the commission.

There were no questions asked of the commission. We are asking about the Minister's actionsvis-à-vis the commission? What approval has the Minister given to the commission regarding indemnification vis-à-vis the Dutch company? Were there communications between the Department of the Environment, Heritage and Local Government and the commission regarding these issues? What arrangements for indemnification were made by the Minister and the Department? Will the Minister clarify some of his misleading comments on access for the courts to the source code? These are specific questions that must be answered.

Some are not relevant to this section.

Has the Minister given an indemnity to the commission?

Can it therefore be concluded that the commission does not have the source code?

Here we are——

Does the Minister know if it has the source code?

I am not in a position to speculate on what the commission has, as it is entirely a matter for it. The Houses of the Oireachtas agreed to establish the commission on an independent basis. It would be far more beneficial to the commission if no more stories on its work appeared in the newspapers. The leaks to the media did not come from me or my Department. The commission needs the time and space to do its job properly. All Members will see its report when it is brought before the Houses of the Oireachtas and not directly to me. The commission has not informed me what it has.

Section 8 deals with the preparation of voting machines but we have now gone off on a tangent.

Was the story inThe Irish Times accurate or not?

One of my amendments on this section was ruled out of order because it would involve a cost on the State. There is a Government amendment to a different section of the Bill which will involve a significant cost.

How is that so?

The Minister is allowed to do so as is normal procedure. Does the Deputy have a specific question?

If the commission has requested this indemnification, is the Minister asking us to believe the Department granted all indemnification that the commission wished? Did the Minister not get a ballpark figure for the indemnification the State was asked to carry?

The Minister does not want to speculate and the committee cannot force him to do so. Amendment No. 75 provides an indemnity for the commission and its members.

The question of an indemnity may not arise at all for obvious reasons. I believe it is highly unlikely to arise.

What does that mean?

The question of an indemnity could be highly unlikely to arise.

Only if the company has provided the source code to the commission?

I am trying to be helpful but I am not going to speculate beyond that.

All right. Either the commission——

Will the Deputy just ask his question and then Deputy Allen can ask a further question?

As the commission must investigate a range of issues, the Department is simply facilitating it.

There are two simple questions to be answered. IsThe Irish Times article accurate? What communications has the Department of the Environment, Heritage and Local Government had with the commission?

If the commission does not have the source code, then it will not be able to recommend that it will be safe to proceed with electronic voting on 11 June.

That is up to the commission.

If the commission could not get the source code because it required an indemnity, then even if this Bill provided for it, the commission would still need time to appoint persons to examine the source code. I cannot see how this can happen by 1 May when the commission reports to the Houses of the Oireachtas. IsThe Irish Times article correct in suggesting the commission will not be able to give the green light in that period of time?

I appreciate Deputy Gilmore sitting here and making those points. Wise and interesting as they may be, they are absolute speculation without any foundation, unless Deputy Gilmore is talking to the commission.

I said at the outset that I was speculating.

My point is that it is extremely unhelpful to the commission for the Deputy to do that. The commission must get on with the job with which it is charged, namely to report to the Oireachtas. Speculating in various ways or suggesting that it will not be able to do X, Y and Z if certain things do not happen is not helpful to the commission. That is my view as a practising politician. The commission needs time and space.

I believe that it will come back with a very honest assessment. What that will be remains to be seen, but I have taken a view on the voting machine, and I hope the commission will be able to satisfy itself. I will accept its decision. In that regard, if the Government has anything the commission requests to expedite its work, of course that will be facilitated.

May I interject?

The Deputy has asked two questions, one of which was not relevant and the other of which has been answered.

I did not get an answer. The reply moved on to another issue, and the original question was not answered.

The Deputy asked a question about an article inThe Irish Times which was totally irrelevant and had nothing to do with the section.

It is entirely relevant.

Irrespective of whether it is relevant, we do not want to bring inThe Star and The RTE Guide and go through the lot of them, asking the Minister about different articles.

All I am seeking is a clearer statement.

The Deputy may ask one question, after which we will move on.

I asked the Minister to make a statement on all the contacts and communications between his Department and the commission since it was set up. The impression given yesterday was that it was stand-alone and independent, and that it would be totally inappropriate to have any contacts. Today we are being told there are ongoing contacts between the commission and the Department on different issues.

As I said——

I will finish on this. The Minister says that we should pack our bags and give the commission a little space, and that there is no need to rush all this. It has been obvious to me for quite some time — as plain as the nose on the Minister's face — that there is no way that electronic voting can be introduced in June.

The Deputy is trying to put pressure on the commission to come up with the result that he wants. He would be better off——

Can I finish?

Yes, the Deputy may finish.

I have examined this legislation for the last six months trying to unearth information that was being suppressed and was not made available to us. We have had to ferret it out line by line, both in the House and in the committee. From the information that we have, it is now obvious that there are huge pitfalls and obstacles to introducing electronic voting in June. The most recent one is that we were told yesterday that there were no contacts between the commission and the Department. Now we are being told there are ongoing consultations and contacts regarding the very nucleus of the proposed system, the source code. There are significant issues regarding indemnification and the use of taxpayers' money in that regard with which the Minister is dealing directly. Yet he is refusing to give us information on them today. It is the Minister who is putting pressure on the commission by setting the deadline of 1 May, something I believe is "mission impossible".

Does the Minister wish to clarify the position?

I demand that the Minister give full information on the consultations and contacts between his Department and the commission regarding the source code and all other relevant issues.

As the Deputy knows, my Department does not have the source code. It is that simple. As I said to the Deputy yesterday——

I am talking about all the points in context.

If the Deputy wants an answer, I will give him one. As I said yesterday, of course my Department will facilitate the commission in any way it can. However, what the commission requires is entirely a matter for it. It is not for me to put into the public domain what an independent commission charged with a specific responsibility needs. It would be entirely wrong of me to do so. This is an independent commission set up on behalf of the Houses of the Oireachtas, to which it will report through the Ceann Comhairle. I will not speculate publicly and make its job any more difficult than has already been done by some with a particular interest in undermining the electronic voting system.

What is the Minister talking about?

I did not interrupt. The question is very simple. Does the system deliver accurately and securely what every voter intends, and does the result come out as the voters intend when they cast the vote?

On a point of order

No. The question is——

It is not agreed. Will the Minister answer the question? I asked him what contacts there had been between his Department and the commission.

I am saying that it would be entirely wrong of me to speculate on what the commission seeks.

I am not asking the Minister to speculate. I am asking him what contacts have occurred between his Department and the commission.

The Deputy should address the question to the commission.

I am asking what contacts the Department has had with the commission since it was set up. I am not running a secret society. I am talking about our democracy.

The Deputy has asked his question to which the Minister should reply.

I have answered the Deputy about ten times already. I will not speculate in public about the commission. It would be entirely wrong of me partly to put into the public domain what the commission wants or requires. I am sure the commission will cover all that in its report.

Question put.
The Committee divided: Tá, 7; Níl, 3.

  • Cregan, John.
  • Cullen, Martin.
  • Haughey, Seán.
  • Lenihan, Conor.
  • Moloney, John.
  • O’Donnell, Liz.
  • Power, Seán.

Níl

  • Allen, Bernard.
  • Gilmore, Éamon.
  • Sargent, Trevor.
Question declared carried.
SECTION 9.

Amendments Nos. 34, 43 and 48 may be discussed together. Is that agreed? Agreed.

I move amendment No. 34:

In page 9, lines 15 to 18, to delete subsection (2).

This concerns the provision the Minister has inserted in which he states an election or referendum shall not be questioned on the grounds of the requirement in subsection (1), which in this case is the onus on the presiding officer to produce a printed statement showing that the names of the candidates on the ballot paper and the questions are correct and so on. If that document cannot be produced subsequently, the election or the referendum shall not be questioned on the grounds that there may be a flaw therein.

The Minister has placed great emphasis in defence of the electronic voting system he is introducing on the fact that these types of paper records would be available. Every time he is challenged on the question of a paper record, he says the machine will produce a paper record at the commencement of polling showing that the discs are clear and that the names are on the ballot paper. He says there will be a similar printed statement at the end with the numbers of people who have cast their votes and so on. Yet somebody wishing to challenge an election cannot rely on those documents. If they are missing, there can be no challenge to the election.

It is the view of the Labour Party that this provision may be unconstitutional. It certainly makes a nonsense of the Minister's claim that there are adequate safeguards for electronic voting. It is true that there are some provisions in the existing electoral Act which limit the issues that can be raised in the context of a court challenge. However, there is no comparison between the two for the simple reason that in a paper ballot, all the ballot papers are available for inspection. That is certainly not the case with an electronic ballot. The provision whereby the machine can print out the ballot papers is totally meaningless in that it does not provide a check which is independent of the computer system. Clearly, the machine can only print out what is on its system. I am proposing an amendment that the prohibition the Minister wants to put on an election or referendum being challenged where the paper record is not available should be deleted from the Bill.

It is significant that three Opposition spokespersons have independently put their names to this amendment. What certainly jumps out as odd in the amendment is that having required in subsection (1) that the presiding officer shall cause a printed statement to be produced, which seems a straightforward enough requirement, the tone of the provision in the next subsection is that if it does not happen, what harm. To use a sporting analogy, it is like saying, "Give it a lash but do not worry; it is only a friendly." We are talking about elections, the bedrock of democratic decisions. It seems at the least that one should require that this be given significant weight and not be a let off clause to the effect that the election or referendum shall not be questioned if the requirement is not complied with. Essentially this is what this subsection, which we are striving to delete, means. It is not the only time it arises in the Bill. There are a number of examples of requirements being set up only to be followed by a phrase to the effect that we should not worry if it does not happen as the election will not be questioned. That is a strange way of casting legislation and we are definitely seeking its deletion.

Section 9(2) specifically precludes a challenge to an election result on the basis of the failure of the machine to produce a printout required by subsection (1). This raises the question of the reason for the imposition of a requirement to produce a printout if it will not be enforced. I propose the deletion of subsection (2) which detracts from the meaning of the section. The failure to produce the printout, which is one of the safeguards of the system, if not complied with is clearly is a ground for challenge. Am I correct in saying that, according to the Department of the Environment, Heritage and Local Government, the counting software proposed contains 200,000 lines of code?

There are different codes in different parts, but the main source code comprises 70,000 lines.

Based on industry standard figures, we can reasonably assume the software to contain defects which will result in between 30 and 120 serious system failures and, on the most optimistic view of its quality, a minimum of ten such failures during its lifespan. We have no information to hand on the size of the code base for the embedded software in the Nedap voting machine, but it would be likewise reasonable to assume similar failure rates for it.

It is important to note that not all software systems failures are immediately obvious to the operator. Many can be extremely subtle and difficult or impossible to detect in use. They may also take a long time, possibly years, to manifest themselves. This is further complicated in the case of election software where, due to the secrecy of the ballot, the input to the software is, by definition, unknown to any other party other than the voter himself or herself. Hardware failures are inevitable in any physical machinery. The existence of computer hardware maintenance repair and data recovery companies demonstrates the everyday acceptance of the certainty of such failures. As with software failures, it will be naive to assume that computer hardware failures will always be obvious. Therefore, it is inescapable that there is every possibility that undetected errors, either in the voting machines used in polling stations or those in the count centre, may erroneously affect the outcome of Irish elections and referenda unless there is some means of independently verifying their function.

It is my contention that, for these reasons, any electronic voting system must include a paper-based voter-verified audit trail. By this is meant that, when voters cast their vote on an electronic voting machine, a permanent paper record of his or her vote must be made which can be securely checked by voters before the electronic record is made of the vote. The paper records must be retained and used in a number of randomly selected constituencies at each election to audit the accuracy of the electronically prepared result as well as in any case where a result is in dispute. Where there is a discrepancy between the paper and the electronic records, the voter-verified paper version must take precedence. The audit trail must be voter-verified as the individual voters are the only people who are entitled to know how his or her vote was cast and therefore confirm the accuracy of the records

Statistically valid checks on the electronically prepared results must be carried out at every election and referendum at which the voting system is used. It is not sufficient to do so at the first few elections or referenda and cease the practice if no significant discrepancies are found. As I said, it may take years for some potential system failures to be detected. The printing after the fact of the ballots recorded electronically by individual voting machines is not a substitute for such an audit trail. While this could be used to verify independently the operation of the counting software, there is no way to prove that the votes had been accurately recorded in the first place without a voter-verified paper audit trail.

A further important reason for having a paper audit trail is as a continuous back-up device that is safe from electronic interference. The Nedap machine records votes on a removable electronic module. A back-up module is provided and, according to a statement from Department of the Environment, Heritage and Local Government in 2002, "all votes cast are transferred to a back-up ballot module inside the voting machine when the poll closes". What happens if there is a catastrophic failure of the primary ballot module before the poll closes? On the face of it, it would appear that all voters up to the time of the failure who have used the voting machines concerned would be disenfranchised. Likewise, less obvious memory corruption would be faithfully copied to the back-up module. This is relevant to this amendment. Will the Minister respond to the points raised?

Deputy Allen essentially has raised the verifiable paper audit trail in the context of people casting their votes, which has been dealt with at length and I will not deal with that again.

I asked about the transfer of votes to the——

If there is a catastrophic failure in the system at any stage, the machine will obviously shut down but the votes will be protected. That has been tested. Not only were the machines tested in terms of their "intellectual ability", so to speak, they were also tested by another institute for the effects of all forms of physical interference such as cosmic rays, magnets and so on. From this knowledge, I am satisfied that if a catastrophic event occurred——

What knowledge?

The reports are available to the Deputy. The machines have been tested to see the effects of a massive power surge of approximately 18,000 volts. The results of all the testing that has been carried out are in the reports.

These amendments seek to delete the subsection stating that the election shall not be questioned on the grounds that the statements to be produced at the opening and closing of the poll are not produced due to a malfunction of the printer in the machine. If there is malfunction of the voting machine printer, the key information that would be on the printed statement would be read from the machine display unit and entered on a blank form by the presiding officer. That form, with the procedures for before and after the poll, is available. The Minister will cover this matter in instructions under section 5(5) of the guidelines to be issued as part of amendmentNo. 85. This provision permits the Minister to issue instructions on voting and vote counting as he or she considers necessary or expedient to ensure smooth and efficient voting and vote counting and to secure uniformity of procedures. A similar provision already applies to this under the Dáil electoral code. It is a necessary saver to prevent unwarranted challenges to the electoral system based on minor difficulties.

I understand what the Deputies have said. I lay emphasis on the initial print-out from the machine which confirms the accuracy of what the voter sees on the screen. I understand the intent of the amendments that have been put forward and, with the agreement of the Opposition, I will return to this on Report Stage. It is important that a paper trail exists and that a print-out is available at the start, as is intended by the amendments. Deputy Allen has rightly stated that this is a printing function within the machine and the likelihood of something going wrong is small. I am cognisant of the fact that there are approximately 7,000 machines. In the countries where printers were used in some test runs for the voter verifiable audit trail, they could not manage the system.

The Minister often quoted the example of India to show that if we could not do it, we would be making a mockery of ourselves. Is he aware of any difficulties that have surfaced in the system now being used in India, which is presented to us as a model?

I am not. All I can say is that 600 million people vote in India. There will be some difficulties in organising any event like that on the basis of probability. We have seen photographs of elephants taking people to voting stations. A similar approach was taken in theBrazilian rain forests in terms of getting people to vote.

Is the Minister aware of the logistics of transporting the machine?

I am not.

The issue is wider than the possibility of a malfunction in the printer. The requirement in section 9 is that when polling starts, the presiding officer gets the machine to print off——

An election agent can also be present to verify it.

There is a print-out which lists the candidates for the election and the fact that there have been no votes as yet recorded. This is signed by the presiding officer and signed by an agent for a candidate. That is fine. The corresponding exercise is carried out on the machine at the end of the day, with the number of votes cast and this is also signed. There is also a similar procedure for postal votes and special votes. The Bill provides that an election or a referendum shall not be questioned on the grounds that the requirement of the voting machine to produce a printed statement has not been complied with. That could mean something other than the possibility that the printer might malfunction. A situation could arise in a polling station where a presiding officer refused to produce a print-out due to time constraints. A row could occur with an election agent who insisted that a print-out be produced. The election could not be challenged on that basis even though there was no compliance with the requirement. It does not specify the nature of the non-compliance.

To be fair to Deputy Gilmore, a similar section is included in the existing legislation, which was used in the pilot phase for the Nice Treaty referendum. I empathise with what the Deputy is saying and I am not satisfied at this stage that that is as good as we can get it. I want to be clear that there must be a print-out at the start of the procedure and that it has to be counter-signed and witnessed. That forms part of the information legally. The intent of the Bill was that if there was some minor malfunction at the end of the process, the election would not be cancelled. I appreciate that people lay emphasis on the fact that there is a print-out at the start of the procedure. I will come back to this and make it clearer at Report Stage.

Amendment, by leave, withdrawn.
Question proposed: "That section 9 stand part of the Bill."

The section provides that after the initial print-out occurs, the presiding officer shall then place the voting machine in his or her view during the poll. That means that someone has to keep the machine in view all day. Is that is what is intended?

It has normally been the case that the polling box is always in view of the returning officer.

The difference is that the presiding officer has functions regarding the box. If someone does not vote or if the machines fail to operate, what are the arrangements for relief? A presiding officer can not sit there from 7 a.m. to 10 p.m. It is a practical question.

I accept it is a practical question. It is a question that the presiding officers and the returning officers will work out in the organisation of the election as they always do. They are bound by statute to run the election. We as politicians do not run the election. As the Deputy is aware from attending elections, there are always two officers presiding. In this instance, the returning officer has to take all those requirements into account in organising the functions on the day.

As it happens, I have experience of using the machines in the second Nice referendum. The traditional arrangement in a polling station is that there are two clerks, one of whom marks off the voter's name on the register while the other hands the voter a ballot paper.

There are more people used now because there will be people at the machines.

That is the point. The difference with the referendum was that there was one person at the desk who marked the voter's name off a list and handed the voter a token. The voter then handed the token to the officer who was operating the machine. The normal relief procedure was that one officer would leave and the other would take control of everything for ten minutes. It is no longer possible to do that, because there are two separate functions that have to be carried out which are at a remove from each other. It seems there will be a requirement for additional staff in the polling stations. A third official will be required to provide relief.

The Deputy is correct. This is due not only because of the scenario he has outlined but also because of the new health and safety rules on hours of work and the time frame. The obligations which now apply under health and safety Acts have changed from those applying under the traditional methods where people operated under long shifts. I have been informed of that by the returning officer. It must also be taken into account.

The Deputy is essentially correct. It is probable that an additional one or two officials will be required. It is a matter for the returning officers to organise. As I stated, their functions have a statutory basis and they must take account of all the new legislation.

All of that means that if there is a need for three polling clerks where there used be two, the cost of this will be considerably higher than the traditional system. One of the Minister's justifications for introducing this was that, while there would be €60 million spent on buying the electronic voting machines, it would reduce the cost on an ongoing basis of running an election. It clearly will not if, for every ballot box or its equivalent voting machine in the country, three rather than two polling clerks will be required

The counting staff are omitted.

That involves a big reduction. Some of the points the Deputy is making have nothing to do with electronic voting. Clearly there are changes to the traditional arrangements which are brought about by health and safety rules rather than by anything to do with electronic voting. In other words, if we were still using the paper ballot system, we would still have requirements under new health and safety rules for extra people on polling day, but we would still have all the people counting votes. We will not have them anymore. There is a considerable reduction in the people required because we are not emptying boxes and counting in the traditional method. This generates enormous savings.

The pay-back on the capital investment is somewhere between ten to 15 years and that still stands valid. In the meantime it is necessary to take account of all the legislative rules that are coming on stream from other areas.

Will the Minister take us through the mechanics of when an individual goes in to vote? I asked about this earlier and did not get a reply. If a person is eligible to vote only in local elections, what happens when he or she goes to the presiding officer? Does he or she get a token?

The voter gets a permit ticket.

He or she then goes to the operator of the machine and presents the ticket. Who controls the functions of the machine?

The person at the machine then controls the functioning of the machine and he will know from the permit the elections in which the voter is entitled to vote. The Deputy is correct in that in some cases there will be people voting in four different polls. Some will be voting in two.

Like Las Vegas.

No, it is not like that. The machine will be turned on to L or EU or whatever ballots to which the person is entitled.

What happens if the person is entitled to vote in the four ballots.

Then all four ballot papers will be turned on for the person.

What happens if, due to some error, they are not? Will the person be aware of this? In other words, what happens if the operator makes a mistake and presses the L button only?

Sorry, I do not understand.

If a person is entitled to vote in the four contests and the operator of the machine misinterprets the person's eligibility and considers that he or she is only entitled to vote in the local elections, would the voter be immediately aware of an error made by the operator?

The person would because he or she would not be able to vote in all the ballots. The ballots would not be turned on for the person and he or she would know immediately.

If, on 11 June, a person decides to cast a vote in the European election and the local election but not on the referendum, are the person's three votes cancelled?

A person can decide not to vote in one of the options.

A person can.

Or one could spoil one of the options without it spoiling the other two.

It would not register.

For that one or for all three?

For one ballot paper or more, if the person wishes.

It would not invalidate the others.

Question put and agreed to.
SECTION 10.

I move amendment No. 35:

In page 9, subsection (2)(b), line 27, to delete “mark shall be placed in the register against the number” and substitute “line shall be drawn in the register through the name”.

This amendment draws attention to what the Bill states, that "mark shall be placed in the register against the number". Experience suggests that it should state "line shall be drawn in the register through the name". To be clear for those operating the election, I would have thought that a "line shall be drawn in the register through the name" would be more specific and satisfactory from the point of view of the presiding officer going from table to table, checking and getting an impression of what is going on. One can argue as to whether a mark registers much at all. What is the intention in the Bill?

It is the same text that has always been used in elections and there was no reason to propose a change. That is what has always been there. It has worked well for decades.

It is accepted then that the same practice is to continue, that a line being drawn through the name is how that is interpreted.

Yes, that is now a standard practice. I have visited hundreds of polling stations and I have never seen anybody demur or do something different. When people are voting, a line is drawn through their name.

We had a situation, it seems, where people did not have a line drawn through their name when it came to the discrepancy between the number of votes cast and the number of voters listed on the marked register.

That was not a correlation between the register and the actual machine. There were other checks or systems being looked at. We are trying different methodologies but clearly the one that works is the register.

I take it that it is the same text. I just wanted to clarify whether there was any change in the Minister's mind.

No. My general view on much of this is that we will come to the bigger question of whether we will change the electoral system. We will see how things go with the European elections, the local elections and the referendum this year. It will be interesting to see whether there is a mood among everybody to change the electoral system and that may then bring us to look at other particular aspects of the electoral system itself. I am referring to the count rules. We have a defined PR system that works in this country. We have had this discussion and the members know my view on it. I am minded to go to the full use of all of the votes being counted and all of the preference votes being counted fully.

The Minister is referring to randomisation.

A system not involving randomisation. However, I emphasise that that is a different electoral system. Substantial legislative change would be required to move to effectively what would be a different PR system. Perhaps that is the wrong way of putting it, but it would differ fundamentally from what we do now.

That is a debate for the future. My view is the system probably will not change unless we can all agree to change it because it would involve changing the electoral system of counting, etc. Some of the other detail about holding elections may well come up in that debate. I do not intend to pre-empt any suggestions that may be made. Perhaps I will come back to the select committee in the autumn when we can go through a whole series of issues with regard to the election. This is one aspect we would have to look at and base our findings on experience. I am sure political parties will undertake their analyses.

Did the Minister refer to proportional representation as against single——

No. I was talking about the counting rules.

Amendment, by leave, withdrawn.

I move amendment No. 36:

In page 9, subsection (3), line 38, after "the" to insert "cast".

This is a drafting amendment.

Amendment agreed to.

Amendments Nos. 37 and 38 are related and may be discussed together by agreement.

I move amendment No. 37:

In page 9, lines 41 to 45, to delete subsection (4) and substitute the following:

"(4) Where an elector has failed to cast, in accordance withsubsection (3), his or her vote and has left the polling station and the presiding officer, accordingly, has reason to believe that the voting machine concerned is still open, the presiding officer shall verify, remotely (by means of the control unit), whether that is the case and, if the machine is open, shall de-activate it. Where an elector fails to leave a voting machine within a reasonable time, the provisions of section 106(1) of the Act of 1992, Rule 67 of the Second Schedule to the Act of 1997 or Article 68 of the Regulations of 1995, as appropriate, shall apply and, where, in such circumstances, the voting machine is still open, the presiding officer shall de-activate it.”.

The purpose of this amendment is to clarify the position for the presiding officers where a voter leaves a polling station without pressing the cast vote button or fails to leave a voting machine within a reasonable time. This is necessary for the orderly conduct of the poll. Subsection (3) provides that the voter shall vote without undue delay and shall leave the polling station as soon as he or she has voted. The same provisions apply at present.

The first part of the new subsection provides that the presiding officer shall de-activate the voting machine where a person leaves the polling station without pressing the cast vote button. This provision is necessary as a person could leave the voting machine without pressing the cast vote button, whether intentionally or unintentionally. An elector does not have to inform the polling station staff if he or she does not press the cast vote button. Nobody will know why the person chooses not to press the cast vote button. When the machine is de-activated by the polling station staff, the voting machine will automatically record such instances.

The publicity and awareness campaign will be designed to inform the voter on the voting procedures of the voting machines. Information will also be available at the polling station on the voting procedures. It will not be necessary for such a person to communicate in any manner with the polling station staff. He or she simply leaves the voting machines and exits the polling station. Polling station staff can see from the control unit display whether the voting machine is activated or on standby. Deputy Gilmore is probably the only member here who has seen this in action. I have not.

There is a difference in this. It is a case of reasonableness and balance. In the polling station where I vote there are several ballot boxes and several polling booths where one votes manually. One gets one's ballot paper and proceeds to one of the booths to vote. At present one could linger for a while before someone might remind you to brostaigh ort. Given that there are a number of different booths in the station, one does not necessarily have to go to the booth nearest to the ballot box. One goes into the polling station and finds the nearest empty booth but it may be at the other side of the hall. One marks the ballot paper and puts it in the box. The difference with the electronic voting machine is that if a person is lingering at the electronic voting machine he or she is holding up the entire works for everybody. If one remains longer than is reasonable at the voting machine, there will be more pressure on people to get their vote done and to move particularly as the queue builds up late in the evening.

Was that the experience? When it was looked at for the general election that did not seem to be an issue. The Deputy is correct. I would have thought it would have been a big issue but it did not work out that way.

The weather was very wet that day. If there is fine weather in June there could be much more pressure.

Will there be as many people? I am speculating now. Even if there is a good turnout for the local and European elections, it will still be lower than for a general election.

So far as voting and using the machines are concerned, the trials did not show there was the kind of resistance to the use of electronic voting that some feared. However, the only information we have on that is from people who voted. We do not have any reportage from those who stayed at home and who were intimidated by it, the extent of which remains to be seen. We have to be open to the possibility that there may be people who did not turn up because they did not want to use the electronic machines and if they had, the turnout would have been somewhat higher.

The other side of it is that there would have been many people whom the Deputy and I would be aware of who could never face the paper ballot because they were illiterate — they had a difficulty with writing and were embarrassed.

Yes, I know that.

In recent years I have been surprised at the type of people who are illiterate, some of whom are successful business people.

There will always be issues like that. Whatever the system, somebody will have a particular difficulty. Hopefully, we have minimised the difficulties by including photographs. We have tried to overcome those issues as best we can. I take the Deputy's point, that we do not know whether those who stayed at home did so because of a fear of using the machines.

I tabled my amendment because a voter may delay or fail to leave the machine. This subsection allows the presiding officer to remove the constitutional right of that person to vote. I queried the validity of this proposal. The unreasonable delay of a voter is one matter but to punish voters by taking away their right to vote seems widely disproportionate. I am proposing——

To put it in a nutshell, the provision is aimed at somebody who goes in, stands in front of a machine and refuses to move after 15 or 20 minutes, thereby causing a massive queue when it is clear that the person does not want to vote. At that point, as would have always been the case with the paper system, judgment has to be exercised by the returning officer or the presiding officer who is charged with responsibility. If they consider that a person is causing a serious problem in a polling station by obstructing people from voting, it is a judgment call.

I see that. The penalty of taking away one's right to vote is totally out of line——

We are not taking away the right to vote. They are refusing to vote.

I was knocking at doors the other day with a local election candidate and a lady came out and said: "My husband and I did not vote for you the last time. We went down to the local polling station and we were refused a vote because we did not have what the presiding officer termed "adequate documentation".

That is a good thing.

I asked what identification they had. The response was: "My social welfare card." However, it was not accepted. Let us face it, there are those who once they are in uniform or have any power at all will use it.

Human nature is always evident.

That four elections are being held on the one day will lead to chaos at some stations because of long queues and some may not be familiar with the English language or computer technology. There will be the referendum, the European and local elections and possibly a second local election. If one is Irish, one is entitled to vote. If one is an EU national one will not be able to vote in the referendum but can vote in three out of four elections. If one a non-EU national one cannot vote in the referendum or the European election but can vote in the two local elections. I reckon there will be chaos in some areas especially where people may be unfamiliar with the system. Given that people are unfamiliar with the procedures they will be disenfranchised by an over-zealous presiding officer. That is very dangerous, and it would be used by people with certain prejudices.

Will the Deputy accept that the same would apply even if we were using the ballot papers? I accept what the Deputy is saying. I am not——

People who are out to obstruct the democratic procedure are there to create a disruption as opposed to those who may be simply awkward in terms of using the system.

They can seek help. They can ask somebody.

Where there is obvious disruption it would be a matter for the Garda to intervene. Giving a presiding officer the right to disenfranchise somebody because they are causing a delay will create problems. I object to this section.

As has always been the case, there has to be a judgment call.

There is no doubt a judgment call will be a factor but I identify with what Deputy Allen is saying. In my home town we will have four ballot papers and it will be interesting to see how quickly people can get through the procedure voting on four different issues.

That also applies in the case of a paper ballot system.

That is true, but this is the first time, with electronic voting, that there will be four ballot papers. Account must be taken of this new scenario.

We hope it will be more simple and speedy. I believe it is.

We live in hope. AmendmentNo. 37 gives certain powers to the presiding officer but the Minister says they will not be used except in exceptional circumstances. Is it not the case that this is a serious decision for a presiding officer to take and is it not required that he or she would return some form of report outlining the circumstances in which the machine was deactivated at a particular time because a person did not move away from it? I could imagine people complaining that a particular presiding officer took it into his head that he did not want any queues and that they were being shunted through the polling station.

That is not a bad point. I do not have an issue with it. If there was a need for the presiding officer to engage members of the Garda Síochána to physically remove somebody from the polling station, I presume that person would make a report. I have presumed certain matters in the past and I do not want to go down the road of presuming that everybody exercises the same common sense as the rest of us. I can examine that aspect with a view to giving the powers a proper basis through the guidelines, or we can consider it again on Report Stage. We could, for example, require the presideing officer to make a report if there was a need for the Garda to intervene in the case of somebody who was causing serious disruption. I presume if a somebody is refusing to vote and is insisting on standing at a machine it would be highly unlikely that the presiding officer would have the capability — many of them are women — to remove a big burly person from a polling machine without the assistance of the Garda.

There are two aspects to this, one of which is practical. The practical concerns we have raised are valid, and Deputy Sargent has drawn attention to inconsistencies in the way presiding officers will deal with this problem in practical terms. However, we need to come back to the issue of principle raised by Deputy Allen because this is the first time the Minister is introducing a provision that a polling clerk or a presiding officer can effectively decide to prevent somebody from voting.

That is not a new provision. To be clear, it has always been provided for in law. It is part of the body of law on voting. That would have had to be the case from the outset. There have been cases, and we all have come across them over the years, where people have had to be removed from polling stations for refusing to vote.

Yes, but there is no provision — the Minister can correct me on this if I am wrong — whereby the presiding officer or the polling clerk can take back the ballot paper. This is the electronic equivalent of doing that. Currently, if someone goes into the polling station he or she sees to the clerk, his or her name is scratched off the register and he or she is issued with a ballot paper. From there on it is in the hands of the voters. They mark the paper and put it into the ballot box. If they do not mark it and they are creating difficulty in the polling station, they can——

They can put it in their pocket and take it home.

They can put it in their pocket, tear it up or do what they like with it but it is their ballot paper. The polling officer cannot take it back from them. This provision effectively enables the presiding officer to take back the ballot paper. If somebody spends too long standing at the machine, the presiding officer can shut down the machine, cancel it or whatever. That is the equivalent of taking back the ballot paper.

There is no ballot paper.

I said it is the equivalent of doing it, and that is the essential difference. Under the old system the responsibility rested with the voter. Having got the ballot paper it was the voter's responsibility to cast the vote or not. Under the new system, the presiding officer is being given a function to decide the point at which the voter is not going to vote, and to cancel the machine. It is the same as having an arrangement in the current system whereby the presiding officer can say to someone, "You have not marked it. I am taking back the ballot paper". The issue of constitutionality will arise on the question of whether an election official can decide that the voter cannot vote. Under the old system——

To be clear about this, the machine is only deactivated after the person has left. The same applies with a person with a ballot paper in their hand who refuses to put it in the box. They are then removed for not casting their vote. The machine cannot be deactivated while the person is still standing by the machine. They would have been requested to leave before the machine is deactivated. Under the law it is illegal to take a ballot paper out of a polling station, although discrepancies arise when the boxes are opened at a count centre. There are a certain number of voters and ballot papers but the two cannot be reconciled. That happens regularly. One can only presume that people put some of the papers——

The Minister said the machine will only be deactivated when the offending person has left the polling station. What is there to prevent the presiding officer from deactivating it in the absence of the person?

The same measure that prevents a returning officer from filling out a load of ballot papers and stuffing them into the machine.

In this case the person has registered a vote——

He is sitting on his own this time.

He is not in front of the machine. He cannot cast the vote.

I presume the presiding officer is within a short distance of the machine.

Where is he located? DeputyCregan said he sits at the back of the machine.

I understand he sits at the control box at the back of the machine.

That is correct. That is separate to the machine.

He cannot view the person voting. He would have to come around to the front of the machine to press——

There will be a number of presiding officers.

The scenario in this election, if it is ever held electronically, is that there will be major pressure from the authorities to ensure there is not chaos and delays at the polling station. I am concerned that in order to ensure everything goes smoothly pressure will be put on people to vote quickly and leave the station, and if they do not obey the regime they will be disenfranchised.

It is an important point.

In addition, the Minister is now telling us the machine will not be deactivated until the offending person has left the polling station. There is scope for abuse here.

We can take everything to extremes. We have to place some trust in the people who will operate the system. That is essential. One could not conduct an election if one could not trust the people. That is a fact. We must trust the people.

If there is a gap, it will be filled.

I do not think there will be, and from our experience to date it has worked fine. I would not want people to be pushed through the system to facilitate anything. I, like the Deputy, have vast experience of voting in elections. When I am handed three or four ballot papers, it takes time to complete them. For example, I would first deal with the ballot paper for the local elections by selecting my votes, checking and re-checking it until I was satisfied I was happy with it. I would undertake a similar procedure with the European elections and the referendum. A voter might be in a town council area as opposed to a local authority area, which I am not and, therefore, I have never voted in a town council election.

The new system will be much quicker and easier for voters because the they will not have to get all their ballot papers, assemble them in a tiny both and examine them. One walks to the machine and the photographs of all the candidates are clearly set out. The new system is more simple to operate than filling in ballot papers under the paper system. That is my judgment. I do not envisage any presiding officer hurrying people through the system. People are entitled to take the time they require to cast their votes.

What is the position regarding delays that may be caused by those who have a visual impairment or a reading difficulty?

The same procedures will apply as those that apply at present. People who have a visual impairment or any physical or intellectual handicap can be assisted at the machine by a person they bring with them or by the returning officer, and the same procedures will apply to this system. Such voters can seek assistance. Anybody can seek assistance at any time. That is fully catered for.

We are not catering for the visually impaired.

In respect of the machine at present?

No, but I would like to be able to——

Why can the system not be connected to provide audio devices for the visually impaired?

There are issues we can examine to expand the facilities——

If we were given time, we could have examined them all.

No, we are adding modules. We worked with the representatives of people with disabilities and they are pleased we tried to facilitate them. They are pleased the tilt system is in the system, although it is not perfection. I am not selling the system as being perfect. One aspect we would like to examine, although it depends on the capacity of the system, is the possibility of adding a Braille facility. It would be helpful if that could be achieved. I want to facilitate such people.

Is there a port on the machines to allow the fitting of an external device such as an audio signal to provide for the visually impaired?

Such a port is on the machine.

Why was it not used to facilitate such people?

The device is simply not developed.

How long will it take to develop it?

We are leading the way on all these developments. We will be able to show the rest of the world how to add such facilities.

I can envisage an editorial in the "Malaysian Times” to that effect.

One has to be bring a sense of humour to bear on debates at times.

A sense of humour——

They are still trying to figure my style of chairing at the OECD.

That is a meeting the committee should consider travelling to attend when we have dealt with this Bill.

We will be able to join in the accolades.

Our work is of greater interest to the Malaysian press than it is to the Irish press. How long will a voter be allowed stay at a voting machine?

There is no set time.

What will be the guideline on that or will the Minister issue guidelines to provide for that?

It is difficult to be prescriptive. As Deputy Allen said, there are different circumstances for different people. If a person is illiterate, blind or handicapped and needs assistance, such a voter would take longer than another person to cast his or her vote. One must take a common sense approach to dealing with a person who is overtly and obviously disrupting the voting procedure.

Where a person is obviously disrupting, it is fine to deal with such a person, but in a situation where there is one voting machine——

I should have pointed out that if a person is standing at a machine and does not seem to be doing anything, the presiding officer can approach the person without looking at anything on the machine and ask the person if he or she needs assistance or if something is bothering him or her.

My problem with that is that an election official would be able to decide arbitrarily whether somebody would be allowed to vote. I have doubts about the constitutionality of that.

I do not agree with the Deputy. The case will be as it has always been in that there comes a point when somebody, for whatever reason, is being disruptive in a polling station.

I have no problem in regard to dealing with a person who is being disruptive.

A person can disrupt the voting procedure by standing at a machine and refusing to leave it after the passing of a considerable period of time. Such a person would be asked to cast his or her vote or to leave. There are a number of procedures before one would reach the point of a person being thrown out or having to be removed. That is currently the position under the old system. One has to provide some room for circumstances in each polling station.

We have given the discussion on the amendment good coverage. Is it agreed?

Amendment put.
The Committee divided: Tá, 7; Níl, 4.

  • Cregan, John,
  • Cullen Martin.
  • Haughey, Seán.
  • Lenihan, Conor.
  • Moloney, John.
  • O’Donnell, Liz.
  • Power, Seán.

Níl

  • Allen, Bernard.
  • Durkan, Bernard.
  • Gilmore, Eamon.
  • Sargent, Trevor.
Amendment declared carried.

I move amendment No. 38:

In page 9, lines 46 and 47, to delete subsection (5).

Amendment put.
The Committee divided: Tá, 4; Níl, 7.

  • Allen, Bernard.
  • Durkan, Bernard.
  • Gilmore, Eamon.
  • Sargent, Trevor.

Níl

  • Cregan, John.
  • Cullen, Martin.
  • Haughey, Seán.
  • Lenihan, Conor.
  • Moloney, John.
  • O’Donnell, Liz.
  • Power, Seán.
Amendment declared lost.
Question put: "That section 10, as amended, stand part of the Bill."
The Committee divided: Tá, 7; Níl, 4.

  • Cregan, John,
  • Cullen Martin.
  • Haughey, Seán.
  • Lenihan, Conor.
  • Moloney, John.
  • O’Donnell, Liz.
  • Power, Seán.

Níl

  • Allen, Bernard.
  • Durkan, Bernard.
  • Gilmore, Eamon.
  • Sargent, Trevor.
Question declared carried.
Progress reported, committee to sit again.

As it is 12.35 p.m. we will adjourn as agreed. Is it agreed that we resume our consideration of the Bill at 2 p.m. on Tuesday next? Agreed.

The select committee adjourned at 12.35 p.m. until 2 p.m. on Tuesday, 27 April 2004.