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

SECTION 11.

Amendment No. 47 and amendment No. 39 are related and may be discussed together.

I move amendment No. 39:

In page 10, subsection (2), lines 19 and 20, to delete "open the lock and remove the cartridge or disc from each such voting machine so that no further votes can be entered therein" and substitute "cause a backup of the data held on the cartridge or disc to be made by the machine to the backup cartridge or disc. The presiding officer shall then reconcile the figures on the printed statement with the number of actual voters using the marked register".

The amendment is self-explanatory and aims to ensure adequate security for the data that is held. The discrepancies revealed in the last fortnight in the electronic counts in the Dublin North and Dublin West constituencies give more reason for this amendment to be accepted.

When the presiding officer closes the poll on the machine, it will automatically copy the vote data to the backup cartridge and produce the closed printed statement. This is carried out before the cartridge is removed from the voting machine. At the close of the poll, the presiding officer completes the form, VM1, which includes the number of permit tickets issued, and attaches the machine opening and closing statements before it is sent of the returning officer.

The number of people using the voting machine can differ from the number of people who are marked off the register of electors, as some may choose not to use it. The number of permit tickets issued should match the number of people marked off the register, unless some people refuse to take the permit ticket and, for example, leave the polling station. The number of permit tickets issued may not match the number of people using the voting machine, as many people may decide to leave the polling station without approaching the voting machine.

However, the number of permit tickets in the possession of the polling station staff at the voting machine should match the number of times the machine is activated. Throughout the day, in consultation with the presiding officer, the personation agent, another agent or candidate can review the number of activations, as displayed on the control unit display system. The closing statement provides information on the number of activations, votes cast and the number of de-activations. A reconciliation is carried out at the count centre, as provided for by section 8. In case of difficulty in making the reconciliation, the returning officer can check the marked register of electors and the balance of permit tickets not used. The documents under the current system are retained as part of the election documentation. In the circumstances, I ask Deputy Cuffe to withdraw the amendment. Insofar as any additional directions are necessary, such details are better left for inclusion in guidelines to be issued under section 31, which is the subject of a Government amendment.

I do not wish to withdraw the amendment.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 40:

In page 10, subsection (3), line 21, to delete "said" and substitute "primary".

The purpose of this amendment is to ensure that two records are kept of the vote. The Green Party is discouraged by the Minister's unwillingness to consider the need for a voter-verified audit trail. The provision of a paper trail with the ballot seeks to ensure an independent method of knowing what votes were made at the ballot box.

The presiding officers have no access to the backup cartridge. The word "primary" is not defined in the Bill and the content of the section is clear. I ask that the amendment be withdrawn. While it may be claimed that the German set-up is of no relevance to this, there are no backup cartridges and no record of any cartridge being lost in German elections.

I am saddened by the unwillingness of the Minister of State to accept the amendment.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 41:

In page 10, subsection (3), line 41, after "officer" to insert "in a sealed, tamper-proof and adequately shielded container of a type and specification approved by the Minister".

This amendment seeks to ensure that a backup is put in place and that there is an independent record.

The level of detail in the amendment is unnecessary to be included in the Bill. Government amendment No. 85 in section 31 will make it clear that this is more suitable for inclusion in the guidelines to be issued by the Minister.

Amendment put and declared lost.

I move amendment No. 42:

In page 10, subsection (4), lines 42 to 45, to delete all words from and including "make" in line 42, down to including "poll" in line 45 and substitute the following:

"ensure that adequate procedures are in place to—

(a) control and document the receipt of containers from the presiding officers at the place appointed under the relevant Act or Regulations,

(b) control and document the storage of the containers at the place appointed under the relevant Act or Regulations, and

(c) enable the candidates, or their agents, to verify the integrity of this process”.

This amendment concerns the security of the ballot as the Green Party believes the Bill contains a loophole in this respect. I am not convinced that simple regulations will cover this. The importance of security procedures must be enshrined in the legislation. The need for security clearance for those working with the electoral software and machines was noted earlier on Committee Stage. It follows that adequate security needs to be put in place for the transportation of the ballot.

As in the past, there will be no lapse in the security of a ballot. The level of detail in this amendment is unnecessary and it is more suitable for inclusion in the guidelines which are proposed in amendment No. 85 in section 31. These matters are best left to the returning officers who have the statutory responsibility for conducting the polls. Each returning officer must have the flexibility to organise his or her work having regard to local circumstances. If returning officers are entrusted by the legislation to conduct polls, they must be allowed to do so without prescribing every single procedure.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 43:

In page 10, lines 46 to 49, to delete subsection (5).

Amendment put.
The Committee divided: Tá, 3; Níl, 8.

  • Allen, Bernard.
  • Cuffe, Ciaran.
  • Gilmore, Eamon.

Níl

  • Brady, Johnny.
  • Gallagher, Pat The Cope.
  • Haughey, Seán.
  • Healy-Rae, Jackie.
  • Kelleher, Billy.
  • Power, Seán.
  • Sexton, Mae.
  • Wallace, Dan.
Amendment declared lost.
Question proposed: "That section 11 stand part of the Bill."

Section 11(1) states:

At the time fixed for the close of the poll the presiding officer shall take steps to ensure that no further electors are admitted to the polling station, but any elector on the premises at that time shall, subject to the provisions of the relevant Act or Regulations and this Part, be entitled to vote.

I referred to the queues that are likely to arise at the voting machines, particularly at peak times and when the polls are closing, in respect of an earlier section. If, for example, there was a malfunction with a machine during the last hour or hour and a half of polling and a replacement machine had to be procured or a power failure occurred or one or two voters did not leave the voting machine on time and had to be encouraged to do so, the process of polling would be delayed, the polling station could become overcrowded and people who presented to cast their votes would not be able to gain access to it. On what basis would the presiding officer decide that people who have presented on time but cannot access the polling station should be locked out and prevented from voting?

The scenario outlined by the Deputy is real, not hypothetical, and it was envisaged under the current system. The returning officer has authority in those circumstances to extend the poll by whatever time he deems necessary to facilitate voters. There was an electrical problem during the last referendum poll in Wicklow and it was extended. That facility is available to returning officers under electoral legislation.

Is the Deputy happy?

No, because that is not stated in the section. It states: "The presiding officer shall take steps to ensure that no further electors are admitted to the polling station." If the poll closes at 9 p.m, the presiding officer must close the doors and that is that, according to section 11(1).

The Deputy is correct that section 11(1) does not provide that facility, but it is provided for in other legislation. I am trying to locate the reference.

Question put and agreed to.
SECTION 12.

I move amendment No. 44:

In page 11, subsection (1), line 4, after "staff," to insert "not earlier than one hour".

Under this section, the sealed ballot box containing postal and special voters' ballot papers shall be opened in the presence of agents and not fewer than two members of the local returning officer's staff before the conclusion of voting on polling day. The postal and special ballot boxes can be opened at any time before the close of poll. For example, they could be opened five minutes after the poll opens.

It is inappropriate for the postal ballots to be opened at an early stage because this would allow information, however limited and unrepresentative, about voting patterns to leak into the public domain while voting is still taking place. This is an inappropriate interference with the freedom of the ballot and all voters are entitled to vote on the basis of an equal amount of information as to voting patterns elsewhere.

Accordingly, I require a limit on the time at which the postal ballot box can be opened and I suggest not earlier than one hour before the close of poll. This would provide sufficient time for the ballot papers to be sorted without information about the votes recorded on them leaking into the public domain prior to the close of the poll.

There is a great deal of merit in the amendment and, when I read it first, I felt it could be dealt with through amendment No. 85 to section 31 by way of regulation. There could be a serious problem if ballot boxes were opened any time after the commencement of the poll. It makes sense to limit the opening of such boxes to the final hour. For example, if the poll closes at 9 p.m, they should not be opened until 8 p.m. or later when it would be too late for the information to reach the public domain and have an effect on voting patterns. While the information would be limited, it would still be representative and it could indicate an opinion that could be a microcosm for the entire electorate. I have given serious consideration to the amendment but I would like to examine it further. I do not envisage great difficulty with it but, if the Deputy would be kind enough to withdraw it, I will address it again on Report Stage.

Why is it necessary to open the ballot boxes prior to the conclusion of voting? Would it be fairer to everyone if the presiding officers waited until all votes had been cast before a box was opened?

If there is a considerable number of ballot boxes, it would take some time to open them. Presiding officers could wait until 9 p.m. before examining ballot papers in the presence of candidates or their representatives. The thinking is that the before the close of a poll, the information should be programmed in and, therefore, it could be synchronised better than waiting until 9 p.m. to do so. It could affect the commencement of the count and, consequently, the result. The compromise would be to examine the Deputy's amendment. An hour before the close of a poll is adequate because, if the boxes were opened at 7 p.m, the information could be readily available to the public in 8 p.m. news bulletins and it could have an effect on the outcome. The proposal for opening the boxes not earlier than an hour before the close of polls should be adequate. If the Deputy withdraws the amendment, I will address it following consultation on Report Stage.

The Minister of State has responded positively and I am happy to withdraw the amendment until Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 45:

In page 11, subsection (5), lines 25 and 26, to delete "shall have a cartridge or disc installed in it in accordance withsection 8, to demonstrate” and substitute “has been prepared in accordance with section 8, to assure”.

Many of these amendments follow on from earlier amendments, which imply a record of the ballot should be kept on the polling machine. The amendment highlights that it is not enough to demonstrate the cartridge is installed in accordance with section 8. The public must be assured that the machine is operating correctly.

I have no great difficulty with the Deputy's amendment because we are almost speaking the same language. The Deputy has proposed an alternative text with the same outcome in mind. I prefer to stick with the text approved by the Parliamentary Counsel. There is no great difference but I would rather stick with it. I do not cast aspersions on the Deputy's text.

Amendment put and declared lost.

I move amendment No. 46:

In page 11, between lines 39 and 40, to insert the following subsections:

"(6) The returning officer or local returning officer shall operate the voting machine so that it gives a printout of all votes entered atsubsection (5) to facilitate the auditing of the accuracy of the voting machine.

(7) The returning officer or local returning officer shall perform a reconciliation between the paper ballots and the output of the voting machine to validate the accuracy of the voting machine record.

(8) In the event of a discrepancy being found atsubsection (7), the returning officer or local returning officer shall repeat the procedures at subsections (5), (6) and (7) on the same voting machine.

(9) In the event of a further discrepancy, the procedures atsubsections (5), (6) and (7) shall be repeated on a different voting machine.

(10)Section (9) shall be repeated until such time as a voting machine is found which accurately records the voters intentions as expressed on the original ballot papers.”.

This is at the heart of our concerns about electronic voting. The Green Party has stated from the outset that it is positively disposed towards electronic voting. We have two concerns, which relate to a voter verified audit trail and cost, an issue that has come to the fore in recent weeks. It does not make sense to introduce new technology for the sake of it.

We must be assured that it is good value compared to the existing technology. On the basis of the somewhat clouded figures we have received up to now, it appears that electronic voting will be a costly change for the taxpayers. We are not Luddites; we love new technology. Judging by the number of submissions by members of the Green Party to the Commission on Electronic Voting, it is notable that many of the members have a strong background and interest in information technology. We need checks and balances in the system.

The Green Party believes movement around the world is towards a voter verified audit trail. While few jurisdictions currently have it, many to the forefront of electronic voting propose to have it in future elections. Individual states in the United States are taking that direction as are some countries in Europe. At the heart of this move is the desire for a printout and a backup of the vote. If people use an ATM, they can choose to get a receipt stating the amount they have withdrawn. Accounting has a double entry principle—

It will also provide the evidence.

For several thousand years accounting has had the principle of double entry book keeping which provides the ability to reconcile what one sees with what one gets. This is what we want to see enshrined in this legislation. It is for that reason that I move these amendments.

Are we discussing amendment No. 46?

Yes, although it was already discussed with amendment No. 14.

The availability of a voter verified paper record is fundamental to the integrity of any system of electronic voting. This record is crucial for auditing and verifying the reliability and accuracy of the electronic count. We should have a random recount of the voter verified paper records to compare them to the count results delivered by the machine. I support this amendment. Amendment No. 14 sought to insert a definition of the phrase "voter verified paper record" and was related to a new section 5 which I proposed. I support the amendment.

I understand this amendment was taken previously with a group of nine other amendments, including amendment No. 14. This amendment seeks the provision of a printout of the vote by the voting machine. I do not want to give the impression that this will be done as it is not intended to do it. The matter of a voter verified paper audit trail was discussed previously. I cannot accept the amendment.

Amendment put and declared lost.

I move amendment No. 47:

In page 11, subsection (8), line 50, before "The" to insert the following:

"The returning officer or local returning officer shall cause a backup of data held on the cartridge or disc to be made by the machine to the backup cartridge or disc. The presiding officer shall then reconcile the figures on the printed statement with the number of actual voters using the marked register.".

It can be difficult to follow the detail of some of the amendments before us. Perhaps it might assist us in our deliberations if I make a comparison to what I do in my daily work. If I submit a motion or Standing Order 31 request to the Ceann Comhairle's office, I generally try to send it by e-mail and then print it out to have a paper copy for my file. I also keep a copy on my computer or on the server for LH 2000. In essence, that is what this amendment seeks. We require that although the data goes to the count centre, it should also be recorded on a drive adjacent to the polling machine and there should also be a paper printout. Good office procedure dictates that one should keep a copy of material sent elsewhere. The amendment is sensible and reflects our desire to be able to trace back and find out what was on an original document. I will press the amendment.

Is there any reason that should not happen? Is some cost involved or are the machines not able to do it?

Perhaps the Chair can guide me on this matter. I understood we discussed this amendment with amendment No. 39. Was it grouped with that amendment?

Yes, we did.

Presiding officers do a type of reconciliation on a form, VH 1, a copy of which has been circulated. If not, it will be provided. It can be seen clearly from that form that a type of reconciliation is done at the polling centre, as I explained in my response to amendment No. 39.

I appear to be stuck on the page showing how to carry the voting machine. Are we dealing with this document?

Yes, page 14, the second last page. It gives details of the polling station reconciliation statement. As I pointed out in my response to amendment No. 39, which was discussed in conjunction with this amendment, the number of people who approach the poll clerk and whose names are marked off the register of electors may not be the same as the number of people who use the permit tickets to have the machine activated or the same as the number of people who cast a vote.

Can the Minister clarify what the permit ticket looks like?

I do not have a copy but I will try to get——

Is it a piece of paper?

Yes, and there is nothing on it which would indicate in any way how a person has voted.

I was of the impression that part of the reason for electronic voting was to save paper. Is each voter issued with this paper ticket?

It is only a small counterfoil and I will show one to the Deputy tomorrow. When people go to the poll clerk and present their identify, they are marked on the register and handed this counterfoil which they bring to the clerk activating the machine.

Are two pieces of paper given to each voter?

Each person is handed one piece of paper which he or she hands to the person activating the machine.

Is it a unique slip of paper?

A person will only get one when he or she goes to the polling clerk.

Will it be identifiable or unique?

It will be new. However, it will not associate the person voting with how he or she has voted.

Will it be reusable on the same day?

No, not at all. There will be more than sufficient permit pieces of paper, more than the number of people on the electoral register.

If a referendum is to take place on the same day, will the voter be given a permit paper for that also?

No, it will be one permit paper per voter but different colours will be used for the different voter categories.

Is it one colour paper for each election?

No, if a voter can take part in all of the votes on the day, he or she will have one colour permit paper. It depends on the category of voter.

If I have the right to vote in the European and local elections and the proposed referendum when I go to the polls on 11 June, will I be given three pieces of paper?

No. Voters will be given a tickets, or permits, of a specific colour to indicate the number of elections in which they can vote. One may be given a blue permit, for example, to entitle one to vote in four polls if one lives in a town council area. I will be able to tell members tomorrow the correct colours that will be laid down by regulation. Those entitled to vote in three or two polls will be given permits of different colours.

I presume that there are approximately 40 different combinations. It is possible for people to vote in four elections. Surely there are many possible permutations.

There are only three categories.

If there is a referendum——

It is not four by three. I appreciate that the Deputy is saying that if there are four elections, there can be many combinations. Four times three is 12 and 12 times two is 24. There could be 24 combinations, but it will not be like that. One will be entitled to vote in three polls, or in all four. The Deputy knows as well as I do that those who can vote in some elections cannot vote in others.

As a matter of interest, how many contests can the voting machine accommodate? If the Government decided to have three or four constitutional——

It can accommodate five contests.

What is the maximum number of candidates the machine can take?

The machine can fit 18 candidates in each column.

If my party decided to run 16 candidates, how would the machine accommodate it?

There is enough space in one column for 16 candidates.

There would be more than 18 candidates in total, given that other parties would have candidates. How would the machine accommodate the additional candidates? What is the maximum number of candidates the machine can accommodate in a single contest?

There is enough space for 18 candidates in a single column, but there can be five——

Is there a danger that certain candidates might be off the screen, meaning that one would have to scroll down to find them?

No. All the candidates will be visible on the screen.

There may be four contests in June. The machine can have five columns and it can accommodate five contests. If a party puts forward many candidates, for example, in the local elections, is it possible that the machine will be able to accommodate everybody?

The machine will be able to accommodate 90 candidates. I do not think we have ever had——

It will not be able to do so because three contests will be taking place other than the local elections.

Four columns will be accounted for if there are 22 candidates in each of the county and town council elections. One will also need separate columns for the European elections and the proposed referendum.

While this is an interesting subject, it is not really relevant.

It is very relevant.

It is not relevant at all to the amendment before the committee.

It could happen, but it has never happened. It is a possibility.

What would happen in such circumstances?

We would have to consider using extra machines.

One would have to——

Such a problem is possible only in town council areas, unless it is totally ridiculous, which is a possibility. There will be four polls in town council areas. There will be just three polls in other areas. There will be a great deal of flexibility in such areas. If such circumstances arose, we would have to use extra machines in the town council areas.

I would like to give a slightly different angle on the same thing. When one enters a polling station, one goes to the polling clerk to have one's name ticked off the register and one is issued with a permit to go to a voting machine. If one has seen in the morning what the permit looks like, is there anything to stop one from returning to the polling station in the busy last few hours of the day with a forged permit? It often happens that people succeed in forging tickets for football games and concerts. How can one stop a person from turning up with a pink or yellow ticket that looks exactly like the permit issued by the polling clerk?

There will be a serial number on the back of each permit. Those who receive the permits will know if they are coming in rotation. The permits will have other security features and will be very difficult to forge. One could say the same thing about ballot papers — one could have printed fake ballot papers during the day and placed them in a ballot box at the end of the day. I do not think it has ever happened.

Will the permits be perforated?

There will be a serial number.

Anybody could print a serial number.

We must have confidence in the poll clerk and the returning officer. The serial numbers will almost come in rotation. One can step back and——

If one is working from an electoral roll, there may be 600 registered voters for a particular machine. We all know that in an election approximately 350 of those people will vote. One might decide to print a ticket in the high 200s to present to the presiding officer at the machine when the poll picks up after tea. People will not present themselves at the machine in the precise sequence in which they have been issued their serial numbers. The presiding officer will not be in a position to re-check all 250 permits from earlier in the day. If somebody shows up with permit No. 247, the presiding officer will have to consider whether he or she wandered around the polling station before coming back to vote. He cannot check the previous 250 tickets if there is a queue of people lining up to vote. It seems to me that this system is wide open to abuse. All we will have is a little chit which can easily be replicated. It will be very difficult to control that at a busy polling station.

There will be a sequence. People may allow others to go ahead of them with the result that the permits do not run one after the other. Presiding officers and polling clerks will be made aware of hidden lines and symbols on the permits shortly in advance of the poll. It will be very difficult to replicate the permits.

Will presiding officers and clerks be able to scan the permits?

They will have visual contact with them. There will be no machine to scan them in the way banknotes are scanned. The symbols and lines will make it easy for returning officers and poll clerks to identify permits. They will not know what colours are to be used until the day of the poll, so they will be unable to reprint them.

This means that access to voting will be controlled by something which is a secret. Is that correct?

I would not say that. The measure is realistic and practical.

The permits will be important as will what happens to them. At present, one is given a paper ballot which one fills in and places in a ballot box. In this instance, one is given a coloured ticket which one then presents to a member of staff who activates the voting machine. Is that correct? What happens to the ticket once it has been given to a member of staff? Presumably the potential is there for tickets to be taken, unless they are carefully and securely sealed in something with the security appropriate to a ballot box?

Officials will retain permit tickets as part of the election documentation which is returned to the presiding officer in sealed containers.

Is there any specification for where it will be stored? Will it be in a pile on the table, under the desk or in a special container?

We will leave that to the returning officer to decide. We will not get involved in such details.

Presumably one would need a high level of security for those tickets, given that they could walk out of the polling station. As every voter goes close to where they are stored, unless they are stored in a secure receptacle, there is potential for interference with the election.

They could not be used because on presenting the ticket on a second occasion, the poll clerk and presiding officer would observe that the name had already been crossed off the register.

Deputy Gilmore made the point that at 8 p.m. there would be a crowd in the room and the person at the desk closest to the voting machine might not be able to watch every single voter coming across directly from the register.

What Deputy Cuffe is suggesting is what Deputy Gilmore suggested, that people could come in with a newly printed ticket. It is not a question of them being lost.

There are two issues of security in this regard. Deputy Gilmore referred to the security of permit ticketsper se, while I refer to their security once they have been taken from voters.

That they could be stolen and re-used?

I suggest that security appropriate to a ballot box is required.

It is almost a mirror image of the situation with the traditional ballot paper; one could have stolen some of those and tried to re-use them.

They are perforated and torn off.

I accept that is the case. It is a matter for the poll clerk or presiding officer to ensure they are stored safely.

If whoever is responsible for receiving the chits is not honest, he or she could pass on some of them to people outside who could come in and vote again.

That could also have happened with ballots.

It could have happened with ballots.

Ballot papers are torn off individually and voters then put them into a ballot box. Hundreds, perhaps thousands of permit tickets would have to be stored on or under the desk adjacent to the polling machine.

The principle of dishonesty is the same. One could also take a number of ballot papers, perforate them on the way out and pass them on. A voter could drop ten ballot papers into the ballot box at one time. One has to depend on the honesty of individuals — it is not a question of the type of system. We have had a good record to date.

I do not wish to be hypersensitive about this, but I see a greater potential for interference with permit tickets than there has been heretofore with perforated paper ballots.

This discussion is becoming more interesting. Is the proposed solution to the problem to have some type of identity mark on tickets such as a bar code, watermark or metal strip known only to the presiding officer?

I would not have thought a problem would arise but, if it did, I believe it would be known to the presiding officer.

What was used in the trials that took place in three constituencies at the last general election?

Did the Deputy vote in one of those constituencies?

Yes, I voted in the referendum.

I do not know if Deputy Gilmore noticed it, but the permit ticket had a security feature.

I did not notice. What was the security feature?

I should know it, but I did not have an opportunity to see it. I understand it involves lines and a symbol.

Was it a bar code?

I do not know. If the Deputy does not recall it, I will supply him with a copy of it tomorrow.

We can have a look at it.

We will not hand around a copy of it, but we will show it to the Deputy.

Deputy Gilmore is in a better position than most of us because he had it in his hand.

I cannot remember what it looked like.

The Deputy is lucky he is here rather than before a tribunal.

I have a feeling it looked a little like a cloakroom ticket. If a person presenting a ticket to the presiding officer is told it is not valid, how can the voter be sure that is the case? If I get a telephone call during the next general election from a voter in that situation, what are my rights? How can a ticket's validity be established if the security system is secret?

If it was presented to the voter by the poll clerk and then to the other poll clerk or presiding officer, I do not see how the presiding officer could possibly say it was not a valid ticket.

Strange things happen in polling stations.

Perhaps they do, but we are living in the real world. I do not believe a situation like that could arise. A person is entitled to a vote.

As a matter of interest, Deputy Kelleher said earlier that 650 million people voted last week in India using an electronic voting system. Do we know anything about how that voting system works? Did we have any observers there? Are we happy that the same type of security is in place here? We are intelligent people on this island and with a population of 3.5 million people we should be able to manage it. I would like to be reassured that the 650 million people who voted in India are happy with the system and that there were no breaches of security.

I understand they used camels. I do not think the final results are known yet. The mechanics of the vote went well but in the absence of a paper trail we do not know if the result reflects the views of voters.

The Minister of State said the safety code would be hidden, that there would not be an instrument or mechanism available to the machine operator to detect a hidden code. How will the operator detect a code if it is not visible to a voter? What does the operator have that the voter does not, if he or she can see the code which is hidden to the voter?

The presiding officer or poll clerk will know what features to look for.

We have now established that the control on the permit ticket will be secret. A number of aspects of the system will now be secret. The source code for the entire system is a secret — it is the commercial property of the company that produces it. The control on the permit ticket will not be released. Some aspects of the count are also secret.

On Second Stage I raised the issue of the constitutionality of what we are doing. Since then — in fact, since the last day we met here — the Labour Party has asked an authority on the Irish Constitution for an opinion on this Bill. I do not want to read the entire opinion, but I will explain one point which brings matters into focus. The expert states that Article 16.1.4° of the Constitution provides that voting shall be by secret ballot and goes on to describe how the law is made. He states:

In my view, it is necessarily implicit in and presupposed by these constitutional provisions that there is adequate scrutiny of the voting and counting process. Thus, even in the days before electronic voting was a technological possibility, the courts would scarcely have upheld an electoral regime whereby the possibility of challenging aspirant voters to produce, for example, identity documents was entirely excluded and still less where the votes were counted in secret and the results were simply announced by civil servants or by State functionaries.

There is a lot more, but the essential point is that in the switch-over to electronic voting we are making secret aspects of the voting and counting processes which previously had been open to visual scrutiny. For example, once a ballot paper has been stamped it is open to scrutiny. At the count one can see which ballot papers have been stamped and so on. This is now being replaced with a system whereby a person will receive a permit ticket, the control on which is a secret, and cast a vote for which there is no paper record.

The issue of constitutionality raises its head in many areas of the Bill, including the one we are discussing, which is the issue of secrecy of controls and the way in which this is being done.

The last day we were here I asked the Minister a number of questions about the source code. I also asked whether all the testing of the system had been completed and I was told it had been. Has the source code been completed to accommodate all the polls being run on election day? If the commission is to report on 1 May, has the company been given indemnification by the Department in the matter of the source code? What is the level of indemnification?

Testing has been completed. We will be dealing with the indemnification for the commission at a later stage.

Has the indemnification been given?

We will be dealing with it later in more detail.

Amendment put and declared lost.

We were not sure over the weekend what agreement had been reached among the Opposition parties. Rumours of their marriage have been greatly exaggerated.

I move amendment No. 48:

In page 12, lines 11 to 14, to delete subsection (10).

Am I allowed to speak on this?

The Deputy may make a brief contribution. It is not necessary or compulsory.

We have been over this already. The section provides that if the paper that must be signed off by the presiding officer cannot be produced it is not possible for somebody to challenge the result in the courts. Again, there is a constitutional issue here.

This section precludes a challenge to an election result on the basis of the failure of the machine to produce a printout as required by subsection (1). Why is a requirement to produce a printout being imposed if it is not to be enforced? I propose the deletion of subsection (2), which detracts from the meaning of the section. The failure to produce the printout is one of the safeguards of the system. If that is not complied with it is clearly grounds for a challenge.

I understand that during the debate last week, when amendment No. 34 was discussed with amendments Nos. 43 and 48, the Minister, Deputy Cullen, indicated that he would consider this before Report Stage.

On that basis amendment No. 34 was withdrawn.

That offer still stands.

Amendment, by leave, withdrawn.
Section 12 agreed to.
SECTION 13.

Amendments Nos. 49 and 50 are out of order.

Will the Chairman state why they are out of order?

They involve a potential charge on the Exchequer. That was explained to Deputy Sargent.

Amendments Nos. 49 and 50 not moved.

I move amendment No. 51:

In page 13, between lines 3 and 4, to insert the following subsection:

"(6) In the recording or counting of votes, the voting machine or voting system shall not distribute or mix votes in a random way.".

As I have explained, the random nature of the manual system of counting votes is perhaps one of its drawbacks. It is difficult to understand why, in adopting the system of electronic voting, the Minister has sought to transfer the flow of the manual system into the electronic system. One of the great advantages of the electronic system is that it would be capable of counting all votes in the way in which they are cast.

The amendment proposes that any voting system adopted must count votes in a non-random way to reflect most accurately the true intent of the voters.

During the last day's debate Mr. Cullen said this amendment was premature, but that after the June polls he will examine whether any changes are necessary to the count rules and publish the proposed changes for consultation before preparing the necessary legislation. This position still stands.

Amendment put.
The Committee divided: Tá, 2; Níl, 8.

  • Allen, Bernard.
  • Gilmore, Éamon.

Níl

  • Brady, Johnny.
  • Cregan, John.
  • Gallagher, Pat The Cope.
  • Haughey, Seán.
  • Healy-Rae, Jackie.
  • Kelleher, Billy.
  • Power, Seán.
  • Sexton, Mae.
Amendment declared lost.
Question, "That section 13 stand part of the Bill", put and declared carried.
SECTION 14.

Amendments Nos. 52 to 55, inclusive, are related and may be discussed together by agreement.

I move amendment No. 52:

In page 13, subsection (3), line 15, to delete "79" and substitute "83".

These are textual amendments. The first amendment is to delete "79" and substitute "83", which has a knock-on effect which the other three amendments rectify.

Amendment agreed to.

I move amendment No. 53:

In page 13, subsection (3), line 16, to delete "83" and substitute "79".

Amendment agreed to.

I move amendment No. 54:

In page 13, subsection (6), line 30, to delete "76" and substitute "81".

Amendment agreed to.

I move amendment No. 55:

In page 13, subsection (6), line 31, to delete "81" and substitute "76".

Amendment agreed to.
Section 14, as amended, agreed to.
SECTION 15.

I move amendment No. 56:

In page 14, line 16, to delete "modified" and substitute "amended".

This is a textual amendment. The Parliamentary Counsel approved the use of the word "modified" and it is in line with previous practice. I have no difficulty with the word "amended" but, with no disrespect to Deputy Allen, I will be guided by the Parliamentary Counsel. The principle is the same, only the word is different.

Amendment, by leave, withdrawn.
Section 15 agreed to.
SECTION 16.

I move amendment No. 57:

In page 14, line 24, after "the" where it firstly occurs to insert the following:

"voter verified paper records, within the meaning ofsection 5, of the”.

The amendment is designed to ensure that in any recount the voter verified paper records are recounted. To conduct a recount simply on the basis of recalculating the electronic results is pointless. If there was a computer system error in recording or counting the votes in the first place, that error or discrepancy would be repeated in any recount.

This has been debated with several other amendments as part of a group and my attitude has not changed.

Amendment put.
The Committee divided: Tá, 3; Níl, 8.

  • Allen, Bernard.
  • Cuffe, Ciarán.
  • Gilmore, Éamon.

Níl

  • Brady, Johnny.
  • Cregan, John.
  • Gallagher, Pat The Cope.
  • Haughey, Seán.
  • Healy-Rae, Jackie.
  • Kelleher, Billy.
  • Power, Seán.
  • Sexton, Mae.
Amendment declared lost.

I move amendment No. 58:

In page 14, line 33, after "of" where it firstly occurs to insert the following:

"producing a paper record of every vote cast, and a capability of".

This amendment reiterates the point that the machines must produce a paper record of every vote cast.

Amendment put.
The Committee divided: Tá, 3; Níl, 8.

  • Allen, Bernard.
  • Cuffe, Ciarán.
  • Gilmore, Éamon.

Níl

  • Brady, Johnny.
  • Cregan, John
  • Gallagher, Pat The Cope.
  • Haughey, Seán.
  • Healy-Rae, Jackie.
  • Kelleher, Billy.
  • Power, Seán.
  • Sexton, Mae.
Amendment declared lost.
Question put: "That section 16 stand part of the Bill."
The Committee divided: Tá, 8; Níl, 3.

  • Brady, Johnny.
  • Cregan, John.
  • Gallagher, Pat The Cope.
  • Haughey, Seán.
  • Healy-Rae, Jackie.
  • Kelleher, Billy.
  • Power, Seán.
  • Sexton, Mae.

Níl

  • Allen, Bernard.
  • Cuffe, Ciarán.
  • Gilmore, Éamon.
Question declared carried.
Sections 17 and 18 agreed to.
SECTION 19.

Amendment No. 59 in the name of Deputy Allen is out of order.

For what reason?

It involves a potential charge on the Revenue. If the Deputy wants further clarification, it can be provided.

I am not being awkward, but I do not see how there could be a charge. Two officers are already being paid a salary. What charge would be involved?

The Deputy is referring to the Ombudsman. I will get clarification later, but the ruling is that it is out of order.

Amendment No. 59 not moved.

Amendment No. 60 similarly is out of order.

Can that ruling be circulated? This is a very important issue.

Yes, that can be done.

Amendment No. 60 not moved.

Amendment No. 61 is also out of order.

May I move those amendments on Report Stage?

If they are out of order, they cannot be moved.

May I move them on Report Stage even if they are again ruled out of order? If I cannot do so, I will ask for a suspension of the session in order to get a ruling. One of the key provisions of my amendments is involved. I should perhaps have given notice and I apologise for not doing so.

That is all right. We will provide the clarification for the Deputy and he may take whatever action he wishes on Report Stage. Currently we are on Committee Stage.

If the amendments are ruled out of order now and the Chairman is saying that I may not re-enter them on Report Stage, I would like a suspension of the proceedings until we get written advice on the matter.

I have taken advice on amendments Nos. 59 to 61, inclusive, and they are out of order. I will provide clarification for the Deputy. I cannot do so now but will do so at a later stage. I cannot suspend the proceedings.

Is the Chairman saying that my amendment is ruled out on the same grounds?

That amendment also involves a potential charge on the Revenue.

With respect, this is a seminal issue. Very often in the proceedings of Government, the Opposition wishes to provide additional safeguards and procedures to ensure that the public interest is upheld. That often involves a charge.

I thank the Deputy for his contribution, but this was pointed out to Deputy Sargent, who tabled the amendment, and he appeared to accept what was said to him.

I am concerned about this matter.

The Deputy is entitled to be concerned.

I want to protect my rights. I have been told that I will be unable to re-enter those amendments on Report Stage if I let the matter pass now. I must make a stand now.

The Deputy can table a related amendment. I cannot pre-judge what may happen on Report Stage. The Deputy does not necessarily have to submit identical amendments on Report Stage. He has been around long enough to know how things work. I will not pre-judge how any future amendments will be treated.

May I table related amendments?

Yes, of course.

That is different.

Amendment No. 61 not moved.

I move amendment No. 62:

In page 15, paragraph (d), line 32, after “persons” to insert the following:

"being the Ombudsman and the Comptroller and Auditor General, or if either or both of those persons are unwilling or unable to act, the vacancy thereby occasioned may be filled by persons".

The purpose of this amendment is not in any way to criticise the two scientific or IT experts who have been appointed by the Government to the commission. It is meant to highlight the fact that both the Ombudsman and the Comptroller and Auditor General were excluded by the Government from membership of this commission. I can only presume that exclusion was related to the fact that both expressed views regarding the electronic voting system, in the case of the Comptroller and Auditor General by way of correspondence to the Public Accounts Committee, and in the case of the Ombudsman by means of public comments which she made.

The following point relates to those made earlier by Deputy Allen and Deputy Cuffe. We need to go back to the origins of this commission. As described in the Bill, this commission was constituted by the Government. There was no consultation with the Opposition regarding either the composition of the commission or its terms of reference. I respect the integrity and independence of the individuals who make up the commission, but the Minister has put them in a very difficult position. This commission was put together very hastily when the Government discovered that it was in deep trouble over its plans for electronic voting. The Opposition had been asking for the appointment of some independent body to examine and supervise the area since last autumn. At that time the Government rejected the idea of appointing a commission. It was hastily put together and given an extraordinarily short period to produce its first report. I understand that it must do so by 1 May. It is unfair to subject members of the commission to such a time limit.

In any event, we must recall that the commission has been appointed by the Government, although that is not in any way to detract from the individuals concerned. If one considers section 17, one sees that the body is described as a commission constituted by the Government. There was no consultation with the Opposition, and we had no input regarding who might be on it or what it might do. The purpose of this amendment, as I said, is to provide that the Comptroller and Auditor General be a member of the commission. We should hear some explanation as to why two public servants whom one would normally expect to be included in such a body were excluded from membership of this commission.

When looking at the composition of the commission, it is useful to consider the composition of other similar bodies established in recent years, for example, the Standards in Public Office Commission, set up in 2001, the Referendum Commission of 1998, and the Constituency Commission of 1997. Of the three most recently established comparable bodies, the Ombudsman sits on all three — but not on the commission on electronic voting. The Comptroller and Auditor General sits on two of the three bodies. Why were the Ombudsman and Comptroller and Auditor General excluded in breach of precedence? Did the two individuals raise questions about different aspects of electronic voting? Were they ostracised because of that? The commission is due to report before next Saturday. When did it get the details of the source code, and did it have an opportunity to examine it? At our last meeting we established that, despite the Minister saying that the commission is independent and has no contact with the Department, there has been ongoing contact between it the Department on indemnification and other issues.

I will first reply to Deputy Gilmore's amendment No. 62. The Bill already provides that the commission be chaired by a judge of the High Court and includes two other officeholders, the Clerks of the Dáil and the Seanad, as well as two persons with knowledge or experience in the field of information technology. That is a very reasonable balance. I will address the issue of why certain people, namely the Comptroller and Auditor General and the Ombudsman, were not included. There is no question of excluding them. It was a question of appointing five members to the commission, and one cannot compare the commission on electronic voting with the Referendum Commission, the Constituency Commission, or the Standards in Public Office Commission. This commission is very much focused on electronic voting and information technology. The decision was taken not by the Minister but by the Government as a whole to appoint Mr. Justice Matthew P. Smith, the Clerks of the Dáil and Seanad, and two persons with experience in IT, those being Dr. Danny O'Hare, chairman of the Information Society and a former president of DCU, Mr. Brian Sweeney, chairman of Siemens and a former chairman of Science Foundation Ireland. It was important that there be individuals on the body with IT experience.

There is no question of any aspersions being cast on the integrity or competence of the individuals mentioned by the two Deputies. There is no statutory or other obligation for either of the two officeholders mentioned in the amendment to serve on the commission, which has a specific task not directly related to their official functions. There are good arguments for not having too many persons on the commission in order to allow it to operate efficiently within a short period. We decided to appoint a commission of five. Acceptance of the amendment would also mean that there would be no requirement for any member of the commission to have detailed knowledge of information technology as provided for in the Bill. I think that all would agree that there should be individuals on a commission with that detailed knowledge of information technology. Consequently, I cannot accept Deputy Gilmore's amendment.

Regarding the source code and the commission, the latter is totally independent, and I have no information on what it has received or sought.

Somebody in the Department must have information but is not prepared to give it. I do not accept that at all. They need to have the information.

Any information, reports or machines requested were made available by the Department. That is all in the public domain. There is no information about the source code, and if I had that, it would immediately be seen as interference. The independent commission stands alone, and there will be no interference.

It is not stand-alone. There has been communication between the Department and the commission.

Not only the Department. I am sure there has been communication with others, and I will not pursue that line. I wish to answer Deputy Allen's simple question. I know nothing about the source code as it is a matter for the commission.

Perhaps the Minister of State might reconsider his response, consult his officials and confirm that there has been communication between the commission and the Department. The Minister said at our last meeting that there had been contact.

My understanding is that any communication between the commission and the Department has concerned reports and the machine itself rather than the source code. That is the most up-to-date information I have.

The Minister said, if my memory is clear, that there had been communication between the commission and the Department about the source code. Now I am being told that there was no such communication. Why is there a subsequent amendment regarding indemnification if there was no communication between the commission and the Department?

The commission asked for indemnification, and we responded.

So there was communication between the commission and the Department.

Yes. I never said there had been no communication whatsoever.

The Minister of State said there was no communication, full stop, between the commission and the Department.

No, the record will show that I did not say that. There was communication between the commission and the Department regarding its requiring copies of reports and one of the machines.

I was dealing specifically with the source code and asked whether there had been communication.

Yes, there was communication on indemnification, and we responded to it.

Regarding the source code?

To ensure the commission is protected. However, that is in a macro-sense. I am not talking of micro-details. We have had no communication about the source code itself or any details thereof.

Has the Department responded to the communication between the commission and the Department and indemnified it?

It provided the report and the machine. The Deputy will note further on that we are dealing with the indemnification.

Has the Minister of State given an indemnification?

We will be dealing with it shortly on Committee Stage.

Is it not relevant now?

It is relevant, yes.

It concerns the commission's relationship with the markets.

We are going to deal with it.

Are we going to deal with it now?

We will be dealing with it. It will be for the committee to decide when. I will be proposing it.

Is the Minister of State saying the Department has not given indemnification to the commission?

We cannot give it until the Bill is passed.

So the commission is not in possession of the source code because the Department was not able to offer indemnification.

I do not know about that. If I did not know——

I thought we were working in a democracy where information is available——

We are——

——and we have an affair going on behind closed doors, a "hand before the mouth" arrangement, regarding substantial amounts of taxpayers' money and one of the core issues in the electronic voting system, namely the source code, and we cannot get straight answers.

I cannot give the Deputy those answers. I am not——

First, I was told there was no communication between——

No, the Deputy was not.

——the commission and the Department on the source code. I was asking specifically about the source code, and now I am told there was such communication.

Deputy Allen should ask a particular question rather than repeat what he has just said.

I cannot get answers.

If the Deputy has a particular question, he should ask it. If not, we will call on Deputy Gilmore.

Let me answer this question: I do not know whether the independent commission is in communication with the companies. I am not aware of that. If I were aware of it, I would tell the Deputy. However, if they were in communication and I were aware of it, then the commission would not be independent. I just do not have the information.

Arising from that response there must have been some communication between the companies, the owners of the source code, with either the Department or the commission, in view of the fact that an indemnity is required. There is an amendment to that effect later. Therefore, there was communication between the company and the Department or the commission because, obviously, the latter was in contact with the Department seeking indemnification. It follows that there is ongoing communication between the commission and the Department on the source code. The report is supposed to be out before Saturday. I just want to know whether the commission has received and examined the source code.

I cannot answer that.

The Minister of State said earlier that indemnification has not been given because the amendment has not been approved. I believe the indemnity cannot be given until the Bill passes all Stages, both in the Dáil and Seanad. How, in those circumstances, was the source code made available, if it was? Or is there a nod and wink arrangement between the different parties?

There was notête-à-tête. There were no nods and winks as far as this is concerned. The commission is completely independent of the Department. The information it requested was provided. Let me repeat for the fourth time — the commission received the reports and the machine and it is a matter for the commission to decide when it submits the report. Indemnification cannot be provided until the Bill is passed. Of course it is acting as an agent of the State, but I cannot interfere in the commission’s internal affairs. If I did, then Deputy Allen would rightly level a charge of interference at me.

If a request was made to the Department about indemnification, some figure must have been mentioned in the communication. I would like to know the figure the taxpayer will be hit with, as regards indemnification, in view of the risk of the source code being——

The Minister of State dealt with this last week.

He said he would deal with it on the day.

He dealt with it last week.

No, he did not.

Is there anything further the Minister of State wishes to add?

I know nothing about any figures.

He must know and the Department must know the level of indemnification sought by the company, in view of the fact that the commission is seeking cover from the Department. It surely did not ask the Department to write a blank cheque, as regards indemnification. A certain level of indemnification must have been demanded by the company.

Deputy Gilmore.

Sorry, what is the answer?

I am not aware of any figure.

Surely the officials are aware of a figure.

No, they do not have a figure.

It is a secret society.

It is not a secret society. It is very open. We are being totally open about this.

As regards membership of the commission, do I understand correctly that the Minister of State's explanation for not having the Ombudsman and Comptroller and Auditor General as members is that the issue of electronic voting was not considered relevant to the offices they hold?

The Government decided to appoint five members. The chairperson is Mr. Justice Matthew Smith and the other members comprise the Clerks of the Dáil and the Seanad and two people with experience in information technology and information society.

When he gave his initial response the Minister of State seemed to infer that the reason for the exclusion of the Comptroller and Auditor General and the Ombudsman was that this issue did not touch on their responsibilities.

I did not say that.

Why, then, are they not on the commission?

Any reasonable person would agree that the commission had a short period in which to carry out its investigations and draft its report and conclusions. Five was considered a reasonable number of members and included——

I am not talking about the number. I am referring to the particular offices. Why were the Comptroller and Auditor General and the Ombudsman not included?

It was a matter of numbers; we wanted to select five people. In other circumstances——

How was it decided? Were the names pulled out of a hat?

What does the Deputy mean? Deputy Gilmore knows well they were not pulled out of a hat.

These are two offices which are normally included on independent commissions of this type. As Deputy Allen said, they are already involved in a variety of commissions of this type, usually one or other of them, sometimes both together. This is the first commission of this kind formed by the Government without the inclusion of the Ombudsman or Controller and Auditor General. I am asking why this is the case.

It is the first commission of this kind. In my earlier reply to Deputy Allen, I said the other commissions cannot be compared to this one, because it is very much focused on information technology and the information society. Therefore, I presume the Government took the view that it was important that there should be two members of the commission with IT experience.

Why were the Clerk of the Dáil and the Clerk of the Seanad included rather than, for example, the Comptroller and Auditor General and the Ombudsman?

It was at the discretion of the Government to decide that.

We are now legislating for the composition of the commission and this is the formula that has been put into the Bill. I want to know why the Government exercised that particular discretion.

That was the decision.

The Government must have some reason.

It may have. I accepted the Government decision to appoint five people — three officeholders and two people with IT experience. There is no question about the integrity or competence of the officeholders mentioned by the Deputy.

We are not talking about the mystery of incarnation here. We are talking about a Government decision. It is not acceptable to me, as a member of this committee, that there is a legislative proposal to establish a commission to examine the way in which voting is to be conducted in this country. I have here an amendment which proposes to amend the composition of that commission, for which I have made a case. The Minister of State has not accepted that amendment and he will have to do better than simply tell me it is a Government decision. I want to know why the Government made that decision. Why is the commission composed in this way? Why are two officeholders who are normally included in commissions of this type excluded from it, in a situation where, coincidentally, they expressed views on the matter?

The Government decided it was necessary to have two individuals competent in IT and the information society on the board and there was a limited number of members on it.

Putting that to one side, why are the Clerk of the Dáil and the Seanad on it? The Clerk of the Seanad will be the returning officer for the Seanad elections which, under this regime, will be the only election in the State that will not be conducted by electronic voting. Why is the Clerk of the Seanad, the returning officer for the one election which will be conducted manually, a member of the commission to examine electronic voting?

The Deputy may disagree with the Government's decision, but the Government-——

It is not a question of disagreeing, I want to understand it. I am entitled to an explanation.

Different criteria apply to committees appointed by Government and, in fairness to the Minister of State, he was not sitting at the Cabinet table when this decision was made. Therefore, it is impossible for him to answer the Deputy's question.

My question arises from the fact that we are in the unusual circumstance of dealing with legislation, which proposes the composition of a commission that has already been established by Government without consulting the Opposition, in respect of which two officeholders who would normally be included in this type of body are excluded. Those two officeholders expressed certain views regarding this matter and we are entitled to an explanation. This commission is being held up by the Government and it has described it repeatedly as an independent commission. It is described in the Bill as a commission constituted by the Government. We are being asked to approve the section which will put that commission on a statutory basis in circumstances where we were not consulted about it and, therefore, did not have any input into it. We are at least entitled to know the reason for that.

(Interruptions).

Why did the Government not decide to appoint the Director of Public Prosecutions, an official from the Paymaster General's office or perhaps the CEO of the Companies Registration Office to the commission? The Minister of State might be able to enlighten us on that.

I am completely at sea. Who said that the Ombudsman and the Comptroller Auditor General should be members of this commission? I cannot say they should be members of it because I have no grounds to support that view. I would like an answer to that question. Why is some fellow from Cork or Ballybunion not on the commission?

It does not follow that because the Comptroller and Auditor General and the Ombudsman may have been on other commissions, they a statutory right to be on this one. This is a new commission dealing with the secrecy of electronic voting. The Government took this decision and it would be wrong to say that these people were excluded; they were just not included.

It is a pity they were not.

That may be the Deputy's view. This is a democracy and everybody is entitled to his or her view. They were not excluded. They had no statutory right to be on this commission and they are not included on it. The Government has discretion on these matters. It takes advice and it decided, in its wisdom, that these should be the five people appointed to this independent commission and that is its prerogative. The persons to whom Deputies Sexton or Healy-Rae referred would not have a statutory right to be on the commission even though they may be equally competent and there is no question about their integrity. It was vital there should be people on this board to give it a proper balance. The judge, the two officeholders and the two IT people on the board represents a responsible balance.

The Minister mentioned the other people on the commission, the Clerk of the Dáil, the Clerk of the Seanad, the honourable justice and who else?

Dr. O'Hare.

Yes, and who is the other person?

I am sure the Deputy knows.

I honestly do not, otherwise I would not be asking.

I am sure the Deputy knows. That is a loaded question.

It is not a loaded question.

It is Mr. Brian Sweeney.

Yes, Mr. Brian Sweeney, I could not remember his name.

He is a former chairman of Science Foundation Ireland.

Is he a computer expert?

He is a former chairman of Science Foundation Ireland.

Yes, but he could be a marketing executive or a management consultant. Is he a computer expert?

I do not know, but if the Deputy wishes, I could try to obtain for him a copy of Mr. Sweeney's CV.

One should never ask a question here unless one knows the answer.

Maybe I do.

Then why did the Deputy ask the question?

I am only trying to get facts.

(Interruptions).

Deputy Allen is seeking some information on the two——

I would like to get details of the qualifications of those two people.

Can that be provided to the Deputy at a later stage?

I do not know whether is available but it was available to me.

We will get information on the qualifications of the two gentlemen.

Were they appointed without the Government having knowledge of their qualifications?

I do not know, but if Government has that information and if it is available, I am sure I can request it.

The Department officials do not know very much because they do not know about the source code, level of indemnification——

If we did know, then the Deputy would have a right to be critical.

There were communications from the commission about the source code and about indemnification. The commission must have referred to a level of indemnification. If it did not, what are we playing at? If it did seek indemnification, it would have mentioned a figure. The Department knows that but is refusing to give that information to this committee.

There is a difference between looking for indemnification about the source code and knowing every detail about it.

I asked about the level of indemnification sought. That was one of the questions.

Is Deputy Gilmore going to withdraw his amendment?

No, I do not accept that the appointment of this commission is a prerogative of Government. This is not like appointing the boards of a semi-State company which is its prerogative. Appointing a commission with responsibility to look at something as fundamental as the way in which people vote should not be at the sole discretion of Government. There should have been consultation with the Opposition about it. Membership of this commission should be agreed. It is not something about which there should be a dispute. Unfortunately, the way in which the Government has handled this has politicised the appointments to and composition of this commission. That is unfair to the members of the commission. I will press the amendment.

I am on a commission which does not have the same format as the one we are discussing. Would it be appropriate to propose a vote of confidence in the commission appointed by Government at this point?

No, it would not, as we must deal specifically with the amendments before us.

Amendment put.
The Committee divided: Tá, 2; Níl, 8.

  • Allen, Bernard.
  • Gilmore, Éamon.

Níl

  • Brady, Johnny.
  • Cregan, John.
  • Gallagher, Pat The Cope.
  • Haughey, Seán.
  • Healy-Rae, Jackie.
  • Kelleher, Billy.
  • Power, Seán.
  • Sexton, Mae.
Amendment declared lost.

Amendment No. 63 has been ruled out of order as it involves a potential charge on the Revenue. As a number of amendments have been ruled out of order on this basis, I wish to explain it in more detail. The charge on the Revenue arises from the provision in the Bill to pay expenses to commission members for services. By adding two extra members, regardless of who pays them, they would be entitled to expenses as they arise. That is as much information as I can give the committee. If members want more information, I will attempt to get it for them.

That is a flimsy excuse to suppress relevant amendments.

I am sure the Deputy will be able to get around it on Report Stage.

We will give it a lash anyway.

Amendment No. 63 not moved.
Question put: "That section 19 stand part of the Bill".
The Committee divided: Tá, 8; Nil, 2.

  • Brady, Johnny.
  • Cregan, John.
  • Gallagher, Pat The Cope.
  • Haughey, Seán.
  • Healy-Rae, Jackie.
  • Kelleher, Billy.
  • Power, Seán.
  • Sexton, Mae.

Níl

  • Allen, Bernard.
  • Gilmore, Éamon.
Question declared carried.
Section 20 agreed to.
SECTION 21.

Amendments Nos. 64 to 67, inclusive, are related and will be taken together by agreement.

I move amendment No. 64:

In page 16, between lines 30 and 31, to insert the following:

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

The functions of the commission are unjustifiably narrow and it must be specifically empowered to take the Nedap-Powervote system to analyse and compare it with other available systems. Specifically, it must be allowed to look at the reliability, security, integrity and verifiability of that system.

Amendment No. 65 suggests that the commission should also be empowered to examine the advisability, at this late stage, of proceeding with elections and a referendum based on a system which does not have the public trust, which is not verifiable and the reliability of which is in doubt.

Amendment No. 67 is designed to remedy the fact that the Minister for the Environment, Heritage and Local Government, who is responsible for running all elections in this country, is also Fianna Fáil's director of elections, which is unsatisfactory. The running of elections is so fundamental that the person in control must not only be independent but must be seen to be so. The current Minister has neither of these attributes, nor has he ever displayed them. Elections and referenda should be controlled by a dedicated electoral commission. The amendment proposes to transfer all the powers and functions of the Minister in respect of elections to the commission that will be established under this Bill. It also proposes that the new commission should also take on the functions of the Referendum Commission, the Dáil Constituency Commission and any other electoral functions.

I would question the links between the Department and the commission. We have been continually informed that the commission is independent but we are now aware of the fact that there has been ongoing contact between it and the Department regarding one of my key concerns about the Bill, namely, the question of the source code. I am at a loss to understand how the commission has been in contact with the Department regarding the indemnification of the company against any loss should commercial information be leaked when no level of indemnity has been discussed. Information exists which has not been made available to the committee on these crucial issues.

I support the amendments tabled by Deputy Allen. I wish to draw attention to a number of flaws and shortcomings in the terms of reference of the commission and the way in which it will be expected to operate. The first flaw in the terms of reference is that the commission has been asked only to consider the application or non-application of electronic and counting of the Nedap-Powervote system for the European and local elections on 11 June 2004. The terms of reference make no reference to the referendum it is proposed to hold on that date. An amendment has been tabled by the Minister which proposes to correct that situation. If the commission has not been asked to include in its considerations the application of the Nedap-Powervote system for the proposed referendum and is being asked to report by 1 May and a decision is taken to proceed with the referendum on 11 June, it has been asked to do something that will not correspond to what will actually happen on that date. In other words, if the commission's terms of reference are confined only to the European and local elections and do not include the referendum, they are not sufficiently broad to encompass what will happen in practice on 11 June. A flaw, therefore, exists. Has the commission been asked to consider the issue of using electronic voting in the referendum?

The second flaw is that the commission is only being asked to look at the Nedap-Powervote system, which greatly limits its scope in this regard. It will not, therefore, have any opportunity to make comparisons.

The third flaw is that the period of time within which the commission is being asked to carry out its mandate, that is, by 1 May, is unreasonably restrictive. Those of us who have taken an interest in this issue from the outset have been, in many ways, overwhelmed by the volume of correspondence and submissions we have received. If the commission has been in receipt of anything remotely similar to the volume of correspondence we have received on this subject and if it has had to try to understand those submissions and obtain expert opinion on them, it is inconceivable that it will be in a position to complete its work by 1 May. It will be impossible for the commission to make an assessment of the safety, secrecy and accuracy of the voting system if it does not have the source code, which is the basis on which that safety, secrecy and accuracy can be assessed.

In light of the reasons I have outlined, it is my opinion that the commission's terms of reference are seriously flawed. We are again operating in a situation where the Government decided on the terms of reference without any prior consultation or proper consideration of what was involved. The flaws to which I refer will make the job of the commission extremely difficult.

Amendment No. 64 seems to seek to reopen the tendering process. What is suggested in amendment No. 65 is already included in the commission's terms of reference, while amendment No. 67 seeks the establishment of an electoral commission.

As regards amendment No. 64 and the competition for tenders, a total of seven tender submissions were received and these were evaluated by the board — comprised of the returning officer, computer experts and representatives of the Department — in 2000. Presentations were made by the companies that submitted tenders and a number of meetings took place and correspondence was exchanged for the purposes of clarifying matters. The board unanimously recommended that, subject to successful testing and the agreement of satisfactory contractual arrangements, Nedap-Powervote be chosen as the preferred supplier on the basis that its tender was the most economically advantageous and offered the most suitable and cost-effective solution for the Irish electoral environment.

The thrust of amendment No. 67 is to try to convert the commission on electronic voting into a permanent standing commission with responsibility for a wide range of matters connected to elections and related matters and to transfer to it the functions of other bodies such as the Dáil Constituency Commission and the Referendum Commission. This is a matter for debate in a wider context, it is not the purpose of the Bill which provides for a commission on electronic voting with a clearly defined and properly focused role. While arguments can be advanced both for and against the Fine Gael proposal, it is a matter which would require long and in-depth consideration. This is not an issue that should be dealt with in the off the top of one's head way outlined in the amendment, which, in a few lines, attempts to deal with what would, if we were to establish an electoral commission, involve fundamental changes to a wide range of electoral legislation.

Deputies will appreciate that the commission was established prior to the announcement by the Government of its intention to hold a referendum on 11 June. My amendment provides for the inclusion of the proposed referendum in the terms of reference of the commission, which it may consider in its report. The terms of reference were not amended under Schedule 5 because they have been given to the commission, which will report on the referendum.

Is it correct that the referendum has not been included in the commission's terms of reference?

The terms of reference in Schedule 5 are not amended. They have been given to the commission.

Has the commission been asked to examine the referendum?

The commission has been asked to have regard to the referendum.

Who made the request?

The Government.

When was the request made?

I do not know the exact date but it was some time after the Government announced the referendum. It would have been wrong if the Government had not asked the commission to do so.

That constitutes a change in the terms of reference of the commission that was never announced publicly. Is the Minister of State telling the committee the Government changed the terms of reference of the commission without making a public announcement?

The Government, following consultation, requested that the commission should have regard to the referendum, which is to be held on the same day as the elections.

Was that a formal request?

By letter?

I am not sure whether the request was made orally or in writing. I will check that.

Will the Minister of State distribute the correspondence to the committee?

I will check that and I will let the Deputy know.

Was the request made in writing?

I just answered the Deputy's question. I am not sure whether the request was made orally or in writing. I will communicate that to the Deputy.

Earlier Deputy Allen tried to extract information from the Minister of State regarding communications. What is going on?

Deputy Allen asked about the Department.

Who in the Government communicated with the commission?

I expect it was the Secretary General.

On whose authority?

The Government's.

Was there a Government decision?

I do not know. If the Government requested that the referendum should be taken into consideration, I presume it took a decision.

I am trying to establish the line of communication with the commission. The Minister, last week, and the Minister of State today have been at pains to tell the committee there was no communication between themselves, the Department and the commission. However, the Minister of State has just told us the terms of reference of the commission were changed by the Government but he cannot inform us by what means that was communicated to the commission. It was not publicly announced and this is the first we have heard of it. The commission has been asked to do something that was not in its terms of reference.

They were not changed. The commission was asked to have regard to the referendum on the same day.

I would like to return to this issue when the Minister of State has provided a copy of the communication.

When will that information be available?

I will settle for returning to this issue tomorrow. My second question relates to other comments made by the Minister of State. He said a tender competition took place in 2000 for the electronic voting system, Nedap-Powervote was the successful tenderer and a selection board made the decision. Under what statutory authority was that competition advertised and run?

No statutory authority is needed to hold such a tender competition. The board comprised two returning officers, two members of the Computer Science Services Board and Mr. Peter Green from the Department. It was not necessary to have statutory authority to do this and it was undertaken using normal public procurement procedures.

This competition involved a tender for an electronic voting system that has cost the State approximately €60 million. I do not how much the bar codes on the permit tickets will cost in addition. However, there was no statutory authority for the tender competition because no legislation had been introduced to provide for electronic voting. Is it normal for Departments to advertise a competition to spend €60 million of taxpayers' money when there is no statutory authority for it? How many other competitions did the Department undertake? This is difficult to take in circumstances where I had to deal with constituents earlier who could not obtain a grant for a downstairs toilet for a disabled person because the Department will not adequately resource the scheme. However, in 2000 the Department advertised for tenders for an electronic voting system before legislation or statutory authority was provided and spent €60 million on it.

It was decided to enter into negotiations and place tenders following the Government's decision to go ahead, in principle, with electronic voting. The board convened, held a tender competition and seven tenders were submitted. Subsequently, the legislation was introduced in 2001.

I accept Departments can hold tender competitions for something that is lawful. How was it lawful for the Department to hold a competition for a contract for something for which there was no legislative basis at the time?

Legislation is not required and the contract was not signed until after the legislation was introduced. If the legislation had not been introduced, the Department could not have proceeded. The Government decided, in principle, to proceed and the Department decided to hold a tender competition. That is not abnormal.

It is abnormal that the Bill to introduce electronic voting had not been published until at least three months after the competition was held and it was not enacted until eight or nine months later. Is it normal to pass legislation first and then spend the money? Who made the decision?

It was a Government decision.

On what date?

I do not have the date in my brief. I will obtain it for the Deputy.

Is there a purpose to this questioning? A tendering process took place. Perhaps it was out of sequence in terms of the normal course of events. Is there is a problem? I do not follow Deputy Gilmore's train of thought.

There is a purpose. This process involved €60 million of public money and we are being asked to accept that the Department could proceed to organise a tender involving that amount before legislation or decisions were made by the Legislature to use the system.

Surely tenders can be used as a mechanism to evaluate how much something will actually cost. If the decision had been made without going to tender, I could understand the Deputy's point but it was done publicly.

If one wanted to know the cost one should send out a letter and ask companies to submit an estimate.

This is probably more accurate.

If tenders are invited, one may be committed to deciding on the successful tender beforehand. What was done was illegal.

The money was not spent before the Bill was enacted.

But the commitment ——

As the Deputy knows, it could have been spent from the appropriation account, but it was not done that way.

Last week, the Minister indicated and acknowledged a mistake was made. He made the mistake of assuming that all parties in the House supported the introduction of electronic voting.

I do not know how the Minister could have made that assumption because on 23 April 2002, the day before the previous Dáil dissolved, on the Order of Business, Deputy Nora Owen sought permission under Standing Order 31 to raise the question of electronic voting in Dublin North and other constituencies. I will read what is on the record from that time.

I will go very slowly because I want the Taoiseach to hear this and to do something about it ... I seek the adjournment of the Dáil under Standing Order 31 to debate the following urgent matter: the proposed electronic voting in Dublin North and other constituencies, the serious difficulties arising from the proposed system, namely, poor instructions, invisible numbers and the lack of a re-check facility and a request to the Minister for the Environment and Local Government to reconsider electronic voting in Dublin North, Dublin West and Meath in view of those difficulties.

I could go on about the exchanges between herself and the Leas-Cheann Comhairle, but the information is on the record. Therefore, even before the 2002 general election Deputy Owen, Deputy Gilmore and Deputy Sargent expressed misgivings. The Minister could have been under no illusion but that there were misgivings and concerns about the operation of this system. Last week the Minister said on a number of occasions that parties had agreed to it and that everything in the garden was rosy. However, when I examined the record I found that request to the contrary.

In fairness to the Minister, while I accept what Deputy Allen says, Deputy Owen's contribution was made before electronic voting was used. The Minister, in referring to the electronic voting, said that following the experience of the pilot use of electronic voting in a number of constituencies his view was, and he thought the same view was held by all of the parties, that it was successful and that we would proceed with it.

It was very successful. Does Deputy Allen think electronic voting caused his former colleague to lose her seat in Dublin North?

I do not know. I cannot say whether it was fair. As I said in the Dáil, I could stand over the results of elections I observed in Nicaragua and El Salvador. However, if somebody asked me to stand over the results of the elections in Dublin North, Dublin West and Meath, I could not do so because I do not have the evidence. It is an act of faith.

Does Deputy Allen think his two colleagues were elected wrongfully because of electronic voting?

I do not know.

Deputy Brady's election could be a mistake.

I do not think so.

Arising from the discussion over the past half hour, I ask the Minister to reconsider the suggestion that this commission is independent and to reconsider the statements made in recent days regarding the lack of interaction between the Department and the commission. The Department has issued instructions to a so-called independent commission to change its terms of reference. There has been communication but we do not know, or cannot be told, whether it was verbal or in writing. The commission was asked by Government to change its terms of reference.

We will be told tomorrow.

A case was made by the Minister and his Department that the commission was untouchable and that there could be no contact between it and the Department. That fallacy has been blown wide open. There has been ongoing communication between the Department and the commission with regard to indemnification, the source code, and now a change in the terms of reference.

What the Minister said last week was that he had made no contact with the commission. He readily admitted that there were several communications between the Department and the commission. That is quite understandable as the Department carries the brief for electronic voting.

It is wrong to say the terms of reference were changed. The Minister of State has said categorically that they were not changed but that the commission was asked to have regard to the fact that an extra contest would take place on the same day.

If Deputy Allen and others felt they could not stand over results from Dublin North, Dublin West or Meath, the Deputies know they could make an election petition and challenge the results in the courts, thereby securing the production of a verifiable paper trail.

What the Minister said has been clarified but I will reiterate what he said as I understand it. He said he made a mistake in assuming, because there was no opposition from the other parties regarding the pilot programme, that they were happy with the system.

Lest there is a perception that the funding was provided prior to the enactment of the Electoral Amendment Act 2001, I wish to point out that the only prior cost incurred by the Department with regard to the tendering process was a small administrative cost. I do not know exactly how much was involved but I can establish the amount. It was not major. No major expenditure was made until the Electoral Amendment Act 2001 was in place.

On the matter of the assurance I gave to Deputy Gilmore as to whether communication was verbal or written, I will ascertain that information. The communication would have been with the Government. As Deputy Cregan pointed out, it requested the commission to have regard to the fact that the Government had decided to hold the referendum on the same day as the local and European elections, after the commission was established.

It would have been very wrong of the Government not to communicate with the commission to ask it to take into account that there was an extra contest. The commission had been asked to adjudicate on the security and credibility of the system based on local, urban and European elections. It is only right that it should be asked to take into account that an additional contest was being proposed for the same day.

Progress reported; Committee to sit again.
The select committee adjourned at 5 p.m. until 4.30 p.m. on Wednesday, 28 April 2004.