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

SECTION 21.
Debate resumed on 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,”.
—(Deputy Allen).

I welcome the Minister of State, Deputy Gallagher, and his officials to the meeting. The committee's consideration of the Electoral (Amendment) Bill will resume on amendment No. 64, which is being discussed with amendments Nos. 65 to 67, inclusive. We have concluded our discussion of amendment No. 64, in the name of Deputy Allen. I call Deputy McCormack to say whether he intends to withdraw the amendment.

We could solve the entire problem, or at least allay many of our fears, by accepting this amendment. The functions of the commission, as outlined in section 21, are very narrow. Is the commission empowered to analyse the Nedap-Powervote system, perhaps by comparing it to other systems? Will the commission be able to assure the general public that the system is reliable and secure? Will it be empowered to investigate whether the system can be interfered with in any manner, for example by programming machines in advance? The ongoing public relations campaign about electronic voting, the commission and related matters simply involves telling the people that the machines are easy to use. We all know that — it is not a problem — but we are concerned about reliability. In what way can the reliability of the machines be——

We covered that in our previous discussion on this amendment. I call the Minister of State to give a brief reply.

I am happy to allow the Minister of State to respond. What I am saying is not as important as what the Minister of State will say.

I refer the Deputy to Schedule 5 to the Bill, which sets out the commission's terms of reference:

The Commission, which shall be independent in the performance of its functions, shall prepare a number of reports for presentation to the Ceann Comhairle on the secrecy and accuracy of the chosen electronic voting and counting system, i.e. the Powervote/Nedap system.

The commission has been asked to conduct an investigation into the Nedap-Powervote system.

Will the commission make comparisons with other electronic voting systems? Does it have the right to do so?

When we discussed this yesterday, I asked the Minister of State to give us information about the change in the commission's terms of reference. He said that the terms of reference have been changed to take account of the proposed referendum. This change had not been announced publicly. The Minister of State undertook to give us copies of the correspondence that passed between the Government and the commission.

The commission was asked to conduct investigations into the Nedap-Powervote system. Any decision to undertake a comparative study is a matter for the commission. The terms of reference are clear.

I wish to clarify the matters raised yesterday and today by Deputy Gilmore. After the Government decided to hold a referendum on the same day as the European and local elections, the Government's secretariat — not the Department of the Environment, Heritage and Local Government — advised the commission's secretariat to have due regard for the fact that the referendum would be on the same day as the other polls and asked it to include a reference to the polls to be taken on 11 June. The initial communication to which I have referred was verbal, but I understand that written confirmation was sent by the Government's secretariat to the commission advising it of this.

Was there a reply from the commission?

Not that I am aware.

That is most interesting. I have just seen a motion which has been circulated for consideration by the House tomorrow. It sets out the formula that will appear on the ballot paper for the proposed referendum. The motion states that voters will be asked to indicate their preference by pushing either the yes button or the no button on electronic voting machines.

The Minister of State explained what happenedvis-à-vis the referendum, which did not form part of the commission’s terms of reference. We have now been told the Government telephoned the commission about the referendum. The House will be asked to decide tomorrow morning on the form the referendum will take. It is clear from the motion that it will be by way of electronic voting. How is the Government in a position to know the commission’s verdict on the system given that the commission has not yet reported ?

The Ceann Comhairle informed the House yesterday that the commission would report on Friday. One of the functions of the commission is to recommend whether electronic voting should go ahead on 11 June. From what the Minister of State told us, there was communication between the Government and the commission. On a number of occasions, the Minister, Deputy Cullen, denied this vehemently. How is the Government in a position to put such a motion before the Dáil tomorrow, assuming the referendum will take place by electronic means when the commission has not yet reported?

I believe the motion to be put to the House tomorrow was checked. It is in regard to the text of the referendum Bill on the polling information card.

That is right.

I do not have a copy of it in front of me, but it is my understanding that if an electronic vote is to take place, voters will be asked to vote yes or no, but if a ballot paper is used they would be asked to indicate their vote by marking X before the yes or no. I will double-check that, but I am certain it does not indicate a presumption that the electronic system would be used. The intention is to cover both options and that must be done before a particular date.

That is the difficulty with electronic voting; the alarming determination of the Government to plough ahead, irrespective of what is happening here or in the commission. This has led the public and the Opposition to become suspicious of what is happening. We had the famous episode on 18 December, the contract was signed on 19 December after which we found out that half of the machines were imported six or eight weeks prior to that. How are we supposed to deal with the legislation when the Government is determined to ignore everything that is going on? It appears we are to proceed with electronic voting whether we like it or not. That is why the Government is not getting support, either here or publicly, for the introduction of electronic voting. There seems to be a mad rush to bring it in. Perhaps this is so the Minister can say he achieved something in his term of office. There is a pretence of bringing Ireland in line with, or ahead, of other countries, which is not good enough reason for changing the country's manner of voting. I am even more suspicious on hearing a motion will come before the Dáil tomorrow, even though the commission will not report until Friday. Either the Government does not appear to care what the commission will say on Friday, or it already knows what will be said, which is worse again.

I thank the Minister for State for the prompt manner in which he gave us information on the machine. I wish to talk about the road show. As many people as possible should be facilitated in getting an opportunity to use the machine. The road show will come to Kerry from west Limerick. Castleisland is the first town in Kerry it will reach. The next village is Farranfore, which is thickly populated. The road show will be stopped for a full day in Killarney, but it should also stop for at least ten minutes in villages like Farranfore. The same thing will happen on the Ring of Kerry. The next stop after Killarney is Kenmare. Why can the road show not stop for ten minutes as it passes through Kilgarvan? When it leaves Kenmare it will pass through Sneem, Castlecove and Caherdaniel. I urge the Minister of State to facilitate as many people as possible to see the machine in a convenient way. Why should the road show pass through all the small villages? It will only take ten minutes out of a full day. That is a simple request. News will travel if the road show is to stop in Farranfore and people will pass on the message to the general area of Farranfore and Firies. I would not expect the road show to go to Firies because it would have to go off the main road to get there from Farranfore. That would be asking for too much. However, if the road show is passing through a village, regardless of its size, can it not stop there briefly? It could spend seven or eight minutes in Farranfore, Kilgarvan, Sneem, Caherdaniel and Castlecove so as to show the system to as many people as possible.

I agree with the Deputy that people are excited about this and that they want it, but that is for another day; we must await the outcome of the commission's report. I supplied Deputy Healy-Rae with a letter giving details of the road show.

I thank the Minister of State.

The Deputy also requested a photograph. The images are in CD-ROM format so he can generate as many copies as he wishes. I will bring the views of the Deputy to officials in the franchise section who are dealing with this matter. However, I cannot give any guarantees. If the people of Kerry never saw the electronic machine until election day, I am sure if it was a general election they would not have any great difficulty in recognising the face and the name.

I thank Deputy Healy-Rae for the geography lesson. I noted the sequence of villages and I will possibly get around to visit them in the summer.

I am concerned about the availability of the source code. It is important that the source code be made available to members of the public who wish to inspect it. That fundamental issue needs to be resolved. I hope the Minister will announce he intends to make it available.

The European Court of Human Rights has ruled that denying prisoners the right to vote is in contravention of the European Convention on Human Rights. I know the Minister was considering this point and I hope the conversation between him and the other wayward Minister, the Minister for Justice, Equality and Law Reform, Deputy McDowell, has come to a conclusion and that they will now accept the ruling of the European Court by offering a franchise to prisoners. I hope an announcement to this effect can be made soon.

Deputy Healy-Rae gave us a tour of Kerry. Now Deputy Morgan is going further.

There is one final important issue I would like to raise: that of the identification of asylum seekers, refugees, immigrants and so on for voting purposes. Again, the Minister said he would consider this. Virtually the only identification held by any of these people is the Garda National Immigration Bureau photograph card. They do not have other identification; they have no driving licence or Irish passport. The only documentation they have is not acceptable. In response to a parliamentary question the Minister said he was considering this issue. I ask for an announcement to be made that the GNIB card will be an acceptable form of identification on voting day. These people are registered to vote; they simply do not have the identification.

What is the rush in all of this? It seems we are constantly rushing ahead of ourselves.

That is the tenth time that question has been asked since we started our consideration of the Bill.

That is because it is never answered.

These are the last few words we will hear on this amendment.

I can understand Deputy Morgan's concerns.

We discussed this inside out the last day. We should have had a vote and I would have allowed the Deputy to say a few words.

Deputy Morgan asked a question about the source code. That was discussed much earlier on Committee Stage and the Minister said he would consider the matter after June.

The question of votes for prisoners is not appropriate to this Bill but we will certainly consider it in the future. We can do nothing about it now. In the matter of identification for voting, we will accept GNIB identification from those who are on the register or may be on it after the supplementary register issues.

What about the question of why we are rushing into this?

This has been discussed since 2002.

I have been here all along and all I have seen is a rush to pass this legislation.

The Deputy was not here all the time, but the question has been asked countless times.

I have been here since 18 December 2003. I never forget.

Amendment put.
The Committee divided: Tá 3; Níl 7.

  • English, Damien.
  • Gilmore, Éamon.
  • McCormack, Pádraic.

Níl

  • Cregan, John.
  • Gallagher, Pat The Cope.
  • Haughey, Seán.
  • Healy-Rae, Jackie.
  • Kelleher, Billy.
  • Moloney, John.
  • Power, Seán.
Amendment declared lost.
Amendment No. 65 not moved.

I move amendment No. 66:

In page 16, paragraph (b), line 36, after “22(5)” to insert the following:

", and, for the purposes of this Act, the references in those terms to elections shall be deemed to include references to any other poll or polls held throughout the State on the date concerned pursuant to any enactment".

Amendment agreed to.

I move amendment No. 67:

In page 16, between lines 36 and 37, to insert the following subsection:

"(2) The powers, functions and duties previously exercised by the following bodies or office holders under the following enactments, shall stand transferred to the Commission—

(a) any powers or functions exercisable by the Minister in running elections or referenda under the Act of 1992, Act of 1993, Act of 1994, Act of 1997 and Act of 2001;

(b) the Referendum Commission, under the Referendum Act 1998, as amended;

(c) the Constituency Commission, under the Electoral Act 1997.”.

Amendment put and declared lost.
Section 21, as amended, agreed to.
SECTION 22.

Amendments Nos. 68 to 70, inclusive, are related and may be discussed together by agreement.

I move amendment No. 68:

In page 16, lines 45 and 46 and in page 17, lines 1 and 2, to delete subsection (4).

The commission which is established by this Bill should not be disbanded after it reports. It should continue in existence because the real examination of this, I fear, will take place after the election. On the last occasion on which this system was introduced on a trial basis in some places people were not as concerned or maybe not as aware of the difficulties that might arise with this system or the possibility of the system being interfered with. That is the biggest concern that people have.

Rather than disbanding, the remit of the commission should be broadened to examine the election. Unfortunately, and this is a real tragedy, the commission has nothing to compare the operation of the system with others to see if the same result comes out. It is a pity that the Minister of State would not concede the possibility of having spot checks afterwards that the commission could examine to see whether results were accurate.

Amendment No. 68 would delete subsection (4) which provides for the dissolution of the commission on the completion of its work on electronic voting. This amendment would seem to be consequential on earlier amendments tabled by Deputy Allen which sought to convert the Commission on Electronic Voting into what Deputy McCormack has described — a permanent standing commission dealing with the full range of electoral issues.

This matter was dealt with yesterday in discussion on section 21. I was not in a position to accept the original proposal and consequently cannot accept this amendment. The Bill provides for a commission with a specific focus to undertake a particular task. The question of a permanent commission with a much wider remit is a matter for consideration at another time, not in the context of this Bill.

Why is it viable at another time if not now? A commission has been set up, which was a good idea, so if it is viable for consideration at another time why should the commission be disbanded now? I propose the deletion of subsection (4) altogether and part of subsection (5) to allow the commission to remain in place after the election because that is when the important investigation will have to take place.

I agree with Deputy McCormack. This section, which winds up the commission, gives the game away. Clearly the Government intends just to use the commission to facilitate the introduction of electronic voting. It is to be hoped that the members of the commission will see their role in a more independent way than that when they come to report.

The other issue arising here is that the section which proposes to wind up the commission is in clear conflict with the commission's terms of reference. The third paragraph of the terms of reference states that the commission's subsequent report or reports will record its views of the operation and experience of electronic voting and counting at elections. Thus, it is clearly envisaged in the terms of reference that the commission would continue to sit and make reports on the operation of the electronic voting system at elections, and not just the elections on 11 June 2004. It would be the body responsible for monitoring the operation of electronic voting at future elections.

It is also to be anticipated that issues will arise in the course of time. I do not know how anybody can come to the conclusion that the commission's work is finished. As long as there are elections conducted by means of electronic voting there will be a function and a role for the commission. It was clearly envisaged in the terms of reference that it would make reports based on the experience of the system at elections. How does the Government then decide that its work is finished?

This section gives away the fact that it was never intended by the Government that the commission would have anything other than a role of convenience to facilitate the introduction of electronic voting now, see it over the hump of 11 June and then be abolished.

The thrust of the amendment is to convert this independent Commission on Electronic Voting into a permanent standing commission responsible for a very wide range of issues relating to elections 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 this Bill. The purpose of this Bill is to look specifically at the secrecy and accuracy of electronic voting.

Arguments can be advanced, and they have been made, both for and against the proposal but it is a matter which would require in-depth consideration and not a once-off proposal which attempts to deal in a few lines with a fundamental change across a whole range of electoral legislation. Amendments Nos. 68 to 70, inclusive, are grouped together, and my amendment No. 69 proposes to provide time for the commission to finalise any outstanding administrative tasks such as paying outstanding expenses and finalising its accounts so as to provide for its dissolution two months after the final report is made to the Ceann Comhairle. Initially the legislation stated clearly that it was to be dissolved after the report was passed to the Ceann Comhairle but it now seems there will be outstanding work to be done and, perhaps, administrative costs and expenses. We want to ensure that we can finalise that. We would need a very detailed debate at another time to consider the establishment of an electoral or permanent commission.

This must put the commission and its members in a very difficult position. Schedule 5 sets out the commission's terms of reference. The first states: "The Commission, which shall be independent in the performance of its functions, shall prepare a number of reports for presentation to the Ceann Comhairle on the secrecy and accuracy of the chosen electronic voting and counting system...". The commission was specifically tasked with producing a report not later than 1 May on the use of the electronic voting system proposed for 11 June. Its third term of reference states: "The Commission's subsequent report or reports will record its views of the operation and experience of electronic voting and counting at elections." In other words, it was clearly envisaged that the commission would remain in being and would oversee how electronic voting was operating in the light of experience, and make reports as it saw fit to the Ceann Comhairle. Section 21(a), with which we have just dealt, states that it would be a function of the committee to make “such reports as are required by the terms of reference given by the Government to the Commission...”. I have indicated what are those terms. Section 22, with which we are dealing, states at subsection (4): “Subject to subsection 5, upon the presentation by the Commission of the last of the reports (the ”final report“) which it is required to make in accordance with section 21(a) the Commission shall stand dissolved.” Neither section 21(a) nor the terms of reference make any mention of what is called a “final report”.

This concept of a final report is new and the Minister of State tells us that the commission will make a report on 1 May after when the only thing it will do is tot up the expenses it has incurred and make a report on that. We were led to believe when the commission was established that it would have an initial job to perform by 1 May, for the 11 June elections, and that it would remain in being. Instead, it is being executed. It has been set up, given a very difficult task to do within a very limited time frame and is now going to be told that it has no function after that besides calculating its expenses. Was the commission told that it would be disbanded?

This is getting crazier. The rules are being made up as we go along. The Bill indicates that the commission operates in one way but now we are told that it will be made redundant after 1 May. It was set up only because of disquiet in the junior Government party arising from which an announcement was made regarding the establishment of a commission when the Minister was abroad. He was apparently upset to discover this development on his return. Now it is to be disbanded after 1 May.

This affair does not make any sense. No wonder the public has lost confidence in what is happening. It is our own fault and the fault of the Minister and the Government for the manner in which they are handling this. I cannot escape the idea that there is undue haste and determination to push this through, come hell or high water, regardless of whether a commission is established. The commission now seems to be a smoke screen set up to satisfy the junior party in Government which was indicating at the time that it would not go along with this.

We must read sections 21 and 22 together. If, as Deputy Gilmore says, we read——

We must read the terms of reference too.

Yes and the terms of reference. We must look at them all together. Based on what the Ceann Comhairle said yesterday we do not know if that will be a final report. If it is not a final report then the commission can make further reports. If it recommends that we pursue the system of electronic voting, the terms of reference say it can be asked to make reports on the operation of the electronic voting. If it does not go ahead there will be no necessity for a report on that.

I refer the Deputy to the terms of reference and the commission's website which show that it is also to report on the operation and experience of electronic voting and counting at the June elections. That is on the assumption that there will be electronic voting.

What will be a final report? If the commission says on Friday that it does not recommend that electronic voting should go ahead on 11 June because, for example, it has not had sufficient time to examine the submissions and get expert opinions and so on, will that be a final report?

We must wait and see. The commission will make it very clear in the report whether it is final or whether there will be a further report. I do not want to second guess it.

We are close to 1 May and is there any indication of whether the commission is satisfied that it had the time to consider this matter, or that it is being forced into a report on 1 May? If the Government had decided to set up a commission early in the debate it would have had time but because of the circumstances that forced its establishment at the eleventh hour perhaps we should wait until 1 May to see its report. It might save us a great deal of time, energy and effort here. If it reports that it has not had time to consider this and it would be risky to go ahead with electronic voting on 11 June would that be the end of the matter?

I have no idea. We must wait two days to know precisely what is in the report.

If it does report as Deputy Gilmore and I suggest what will the Government do?

We must wait and see. There is no point in my second guessing it and dealing with hypothetical questions. We will know on Friday and deal with it then.

Has the Minister of State or his Department, at any level, received any draft of the report?

Has he had any indication of any kind from the commission as to what may be in the report?

I have received no indication at all. The Department and I know no more than anybody else.

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

I move amendment No. 69:

In page 16, subsection (4), line 45, after "upon" to insert "the expiry of 2 months from".

Amendment put and declared carried.

I move amendment No. 70:

In page 17, subsection (5), lines 7 and 8, to delete all words from and including ", the" in line 7 down to and including "order" in line 8.

Question, "That the words proposed to be deleted stand," put and declared carried.
Amendment declared lost.
Question, "That Section 22, as amended, stand part of the Bill," put and declared carried.
NEW SECTION.

I move amendment No. 71:

In page 17, before section 23, to insert the following new section:

"As soon as practicable after the Government has received a report undersection 22, it shall lay before each House of the Oireachtas a report responding to the report of the Commission, detailing

(a) the action which the Government will take to effect the recommendations of the report of the Commission;

(b) the reasons for not implementing some or all of the recommendations contained in the report of the Commission; and

(c) the timescale for implementing the report of the Commission.”.

This is related to the previous amendment because the Government has established the commission, albeit at the 11th hour, to relieve itself from Opposition pressure, and possibly from pressure by members of the Government, as well as by the general public. What status do the reports have, and will the Minister listen to what they say? Will the commission's views and recommendations be acted on? I am trying to establish whether, if the commission highlights any issues of concern, the Government will admit that there is cause for postponing the introduction of electronic voting. We are proposing in this amendment that once the commission delivers its report, the Government must then decide to act or not to act. This must be clarified and explained in the report to the Houses. What attitude will the Minister and the Government take to the report when it is issued?

The question being asked by Deputy McCormack is somewhat different to the amendment tabled. I presume the Deputy is referring in the amendment to the new all-embracing electoral commission. The amendment asks for the Government to produce a report setting out its responses, and its proposals for implementation. While there may be a case for such an amendment in the context of a permanent electoral commission, which would be wide-ranging, this amendment is not appropriate or necessary in the context of the Bill. The Bill deals with the commission, which is specifically defined in its focus and remit. It provides that the commission will produce its first report by 1 May, that the report will be presented to the Ceann Comhairle and that he shall have it laid before the Houses as soon as possible. The Minister has already stated that if the commission recommends that the proposed system would not be introduced in June, that recommendation will be seriously considered. When the commission's report is received, it will be considered by the Government and a response will issue. Going by the experience of the last few months, it will be subject to much discussion in the House.

I would like a definition of the term "seriously considered". Can the Government accept some of the recommendation of the commission, and not accept others, or will it deal with the concerns which the commission might have? If the commission has concerns, will the Government abandon the plans for electronic voting in the June elections?

We will have to await the recommendations. The Government will take them very seriously.

Amendment put and declared lost.
SECTION 23.
Question proposed: "That section 23 stand part of the Bill."

Section 23(2) states: "The Commission shall consider submissions made to it pursuant to this section." Does this mean that the commission is required to consider all submissions made to it?

I am sure the commission would have considered all submissions.

I am asking what the section means. Does it mean that the commission has to consider all submissions?

It will consider submissions made to it pursuant of the section.

If a very technical submission were made to the commission, is the commission required to consider it?

Yes. That is clear.

Must the commission consider all submissions?

Presumably, when the commission produces its report, it must show that it has complied with the section.

I would have no function in that. We must wait to see what the report contains.

Presumably, if there is a requirement for the commission to consider all submissions, it will have to report to that effect.

The commission is independent. It is clear that it will consider all submissions made to it. It does not specify any conditions or exclude any submissions, whether they be technical or otherwise.

Question put and agreed to.
SECTION 24.

Amendments Nos. 72 and 73 are related and may be discussed together by agreement.

I move amendment No. 72:

In page 17, line 19, to delete "first-mentioned" and substitute "Houses of the Oireachtas".

These two amendments are drafting amendments for clarification purposes. Two different commissions are referred to in that section, the commission which is defined in section 17 as a commission on electronic voting, and the Houses of the Oireachtas Commission. Section 24 provides for staff and other services to be made available to the commission on electronic voting by the Secretary General of the Houses of the Oireachtas Commission. These are textual amendments.

Amendment put and declared carried.

I move amendment No. 73:

In page 17, line 20, after "the" to insert "first-mentioned".

Amendment put and declared carried.
Question proposed: "That section 24, as amended, stand part of the Bill."

Is the Secretary General of the Office of the Houses of the Oireachtas a member of the electronic voting commission?

How does the Minister of State reconcile putting an obligation on the Secretary General of the Office of the Houses of the Oireachtas, who is also a member of the electronic voting commission, to do something he would be required to do or asked to do by the electronic voting commission? Is there not some potential for conflict for the holder of the office under this section? I do not mean a conflict of interest in the personal sense, but between the office-holder's role as Secretary General of the Office of the Houses of the Oireachtas and his role as a member of the electronic voting commission.

As I understand it, the allocation of the resources of the Houses of the Oireachtas is now controlled first by the Houses of the Oireachtas Commission, which is established by a separate statute. How is it proposed to place a requirement on the Secretary General of the Office of the Houses of the Oireachtas to make available resources through the electronic voting commission, when he or she is, under a separate statute, accountable to and responsible to the Houses of the Oireachtas Commission in respect of the provision of those resources? Why is the obligation placed on the Houses of the Oireachtas for the resourcing of the electronic voting commission and why is separate provision for the resourcing of the commission not being made?

The question of the Secretary General having responsibility for providing secretarial services and the fact that he is a member of the commission arises only if there is some kind of conflict of interest which creates difficulties. The Secretary General only makes provision for staff and provides secretarial services, and those people are not involved in any discussions. It is a question of the integrity of the staff involved, and I see no difficulty there. Furthermore, the charge will not fall on the Houses of the Oireachtas, since payment will come from the central fund.

The requirement to provide the staff to serve the commission will fall on the Houses of the Oireachtas.

It would not have been right and proper for the Department to provide secretarial staff. The view was taken that the body to provide secretarial staff should be the Houses of the Oireachtas.

Was the Houses of the Oireachtas Commission consulted?

The Secretary General was consulted, but I am not aware of what he did.

According to section 23, the commission is required to consider all submissions made to it. It may have received a substantial body of them. Let us suppose that the Houses of the Oireachtas Commission decided that it would not make staff available. Where would the Secretary General of the Office of the Houses of the Oireachtas stand then? From which Act would he be required to take direction — this one, or the Houses of the Oireachtas Commission Act 2003?

I am sure, if the electronic voting commission had required more staff to assist it in carrying out its work as set out in the terms of reference, and enough staff had not been provided, that it could not have completed its task. We understand that the report will be provided and presented to the Ceann Comhairle on Friday, so it must have had enough staff. If it had not, and the Secretary General of the Houses could not have provided those staff, I can only assume that commission would have come back to the Government seeking assistance.

Judging by the other sections, the Minister does not envisage the commission having a very long life anyway, or having very much of a meaningful function in future, so that situation may not arise. It is interesting to note that the Minister of State is already speaking about the commission in the past tense.

If the Government decides in future that there should be an electoral commission — I am not sure whether the Deputy supports one, as it has been tabled by Fine Gael — there would be legislation, and it would require a permanent staff akin to that of the Standards in Public Office Commission.

I have drawn attention to it, and that is all.

Question put and declared carried.
SECTION 25.
Question proposed: "That section 25 stand part of the Bill."

Section 25(3) states: "Section 5(3) of the Houses of the Oireachtas Commission Act 2003 shall not apply to any moneys recouped pursuant to this section." What does this mean and what is provided for under section 5(3) of the Houses of the Oireachtas Commission Act 2003?

The funding provided will not go into the Houses of the Oireachtas account but straight to the commission. For that reason and others, it has been extended by two months in one of the amendments to allow it to conclude its business.

Is the Deputy happy?

Question put and agreed to.
Section 26 agreed to.
SECTION 27.
Question proposed: "That section 27 stand part of the Bill."

Section 27(1) states:

No person shall, without the consent of the Commission, disclose to any person any information obtained while serving as (or during service as) a member of the Commission or as a person whose services are made available to the Commission undersection 24 or as a consultant or other person providing services to the Commission, being information relative to the business of the Commission or the performance of its functions.

We are not setting up an organisation like MI5 but a commission on the way that we vote. Why is there a requirement for such a secrecy clause?

Section 27(1) is no different from the section in the Bill dealing with constituencies. It makes it clear that all the information must remain confidential.

Why? We are dealing with the way that we vote. What is confidential about that?

The report will be available, and there are also commercial issues.

There is no reference to "commercial issues". It covers everything.

We will deal with indemnity at a later stage.

Does that mean that a member of the commission could not make a minority report?

The Deputy will have to wait to see if anyone makes a minority report. It is a matter for the commission to decide what report it wishes to make.

Let us say that there are five members of the commission and four of them go in one direction but one has formed a completely different view or has concerns about certain aspects of the commission's work. Could that member issue a minority report?

As with any commission, it is a matter for it to report. If there are one or two members who disagree with the majority view, they may attach an annex to the report indicating that.

Yes, but they may not do that, under this section, without the consent of the commission.

Where does the Deputy believe it says that they may not?

Section 27(1) states: "No person shall, without the consent of the Commission, disclose to any person any information obtained while serving as (or during service as) a member of the Commission or as a person whose services are made available to the Commission". Let us suppose that a submission is made to which the commission's report makes no reference and a member of the commission believes it to be significant and wishes to draw attention to it. Under this section he or she is prohibited from blowing the whistle.

It is a matter for the members of the commission to make the report and therefore it would have to be stated clearly that it was not a unanimous view. I do not see any difficulty whereby the individual or individuals — up to two — could attach an annex to the report. The section is no different to those which apply to any of the other commissions, indeed its terms are derived from them.

I do not agree with it. I oppose the section.

Question put and declared carried.
SECTION 28.

I move amendment No. 74:

In page 18, subsection (1), line 24, after "of" to insert "improperly".

Given that the commission is inviting public submissions, it seems strange to make a criminal offence attempts to seek to influence it. Section 28(1) states:

Subject to the provisions ofsection 23, it shall not be lawful for any person to communicate with the members of the Commission, or staff whose services are made available to the Commission under section 24 or a consultant or other person providing services to the Commission, for the purposes of influencing the Commission in performing its functions.

The purpose of making submissions to the commission is to influence it. I presume what is meant is that a person should not try to improperly influence the commission, in which case it should state "improperly". As the Bill is drafted, however, it could be unlawful to make a submission to the commission.

Section 19 provides that the commission is independent in the performance of its functions. As the committee will be aware, it is chaired by a judge of the High Court.

Under section 23, the commission may invite and consider submissions from the public on such basis as it may consider appropriate. This provides an opportunity for any individual or body to give views and recommendations to the commission.

The amendment would create major problems for the commission. Who will adjudicate on whether a communication is proper or, indeed, improper? It would be better to leave the commission free to carry out its functions, especially considering the time available to it. The wording used is the same as that which applies to the Constituency Commission for the Dáil under the Electoral Act 1997 and does not appear to have caused difficulty in the past.

Amendment put and declared lost.
Section 28 agreed to.
NEW SECTIONS.

I move amendment No. 75:

In page 18, before section 29, but in Part 3, to insert the following new section:

"29.—(1) The Government shall, on such terms as it thinks appropriate, indemnify the Commission and each of its members against all actions and claims however they arise in respect of the performance by the Commission or a member of it of functions under this Part.

(2) The costs of any indemnification undersubsection (1) shall, to such extent as may be determined by the Minister and the Minister for Finance, be met in the same manner as section 25 provides that the expenses of the Commission shall be met.

(3) The Commission may, with the consent of the Minister for Finance and subject to any conditions that the Minister for Finance specifies in the consent, indemnify, on such terms as it thinks appropriate-

(a) any person against any loss or damage in respect of intellectual property rights or other loss or damage that may arise from the performance by it of functions under this Part, or

(b) any person against all actions or claims however they arise in respect of any act or omission of that person if it considers such indemnification of that person to be necessary or expedient for the purpose of the performance by it of functions under this Part.

(4) For the avoidance of doubt, nothing in the Insurance Acts 1909 to 2000, regulations made under those Acts or regulations relating to insurance made under the European Communities Act 1972 shall affect anything required or authorised to be done by this section.".

This amendment results from a request by the commission arising from its desire to examine the source code of the voting machine and election management software and to run its own tests on the software. The source code information has been developed as a proprietary product by the system supplies, Nedap-Powervote, and parts of the code are highly commercially sensitive and extremely valuable. With the source code, a potential competitor could reproduce the system and infringe the intellectual property rights of the manufacturers who have developed and refined this system over the past 20 years. It is, therefore, important that such codes are protected and not available to potential competitors.

In order to protect their interests, the system designers have sought indemnities from the commission as a bond in the event of failure on the commission's part or on the part of a third party testing institute engaged by the commission to protect this sensitive information. It is necessary, therefore, to provide in law for the commission to be indemnified by the Government for any costs which may arise from the performance of its functions and for the commission to be empowered to grant an indemnity in its own right to third parties working on its behalf. Any indemnity granted by the commission to a third party will require the prior consent of the Minister for Finance, who may attach appropriate conditions to the issuing of the indemnity.

The amendment arose out of a request by the commission and the Government agreed to the request in order to give every reasonable assistance to it to carry out its remit. No indemnity can be finalised until the Bill is enacted and none may be required depending on the commission's discussions and agreements with the suppliers of equipment, including software. The Minister and the Department are not aware of the discussions between the commission and the suppliers.

The indemnity proposed in the amendment is much wider than that which has been described by the Minister of State. We have been told that what is behind this indemnity is that the commission, in order to do its work, needed to get access to the source code. When the commission sought the source code, the company concerned said that it is commercial property and the commission could not have it. It would appear the commission formed a view that if it got the source code and if, as the Minister of Stated described, at some point in the future the company which produced and owns the source code felt that the proprietary right had been compromised in some way or that a competitor had got it, then the company might sue the commission and the commission looked for an indemnity. First, that tells us that the key to this country's electoral system is now the private property of a company which may sue the State if it does not like the way the State is using it. That is basically what it comes down to. It will sue the State for whatever amount and the State will fork out.

Second, the amendment is not even confined to the source code. The amendment states that the Government will "indemnify the Commission and each of its members against all actions and claims however they arise in respect of the performance by the Commission or a member of it of functions under this Part.". If, for example, on Friday the commission states that it recommends we do not proceed with the electronic voting, it is open to the suppliers of the equipment, if they feel so inclined, to state that will cause them some loss and they will sue the State.

The Minister of State is proposing here that the State will give a blanket indemnity against each and every eventuality that may arise. It is not confined to the source code. It may be an issue over the source code being compromised. It might be that the company had an expectation that there would be 300 more machines used which will not be used now and therefore a claim arises from that. It may be that the company is developing the system further and some claim may arise from that.

In giving this kind of a blanket indemnity, the State is in fact inviting claims. I am not prepared to agree that we would so legislate. It is bad enough that the Government has decided to privatise the way in which elections are conducted and the key to them, and to hand this key over to a private company which now states it is property so commercially sensitive that it will not even make it available to the commission established by the Government to look at it. In response, the Government wants us to write a blank cheque for any time that the company may wish to dip its hand in the bag of sweets again. I am not prepared to give that kind of blanket indemnity. It is a most remarkable amendment from the Minister.

I am astonished we are hearing that a private firm outside this country is in full control of the source code of our voting system. What is happening here is unprecedented. We are handing that power over to a company about which do not know anything, good, bad or indifferent except that it is not in this State. Not alone have we given the company the contract for this but it will be compensated if anything goes wrong with it, even if we do not go ahead with it. I ask the Minister to re-examine this matter. There is a great danger in what is being proposed in this amendment. Perhaps it might have been satisfactory to give the indemnity as regards what the commission sought, but to give such a blanket indemnity leaves the Sate exposed to anything that might occur in the future. It would leave the State exposed if the commission were to report to Government and a decision were to be made not to go ahead with electronic voting. Would we have to send back the machines and would the company hold the State liable for the cost it had incurred in contracting the source code? If this amendment is passed, it could have serious repercussions for the liability to which the State might be exposed at some point in the future.

On the history of this, my understanding is that the commission requested this from the Government and the Government gave this indemnity. The amount is a matter between the commission and the suppliers, which may involve detailed discussions depending on the commission's intentions. When all these matters are finalised between both parties, I expect that the commission will be in contact. It is a question of what the commission sought and the Government deciding that it would give that indemnity. I must point out that this is only a contingency. I am not aware whether the commission got the source code. It could well have used the PTB, which we used prior to this. It is an international institute to which the company is accredited and it protects its interests. We never saw the source code nor had we any access to it. The PTB is an internationally accredited institute and we accepted what it told us, which was that it examined the source code and it states what it is supposed to in relation to the Irish electoral code. This is a contingency section. We may know on Friday whether the source code was secured by the commission. If it was not, the issue does not arise.

It was for the source code the commission sought cover. Why did the Government extend the cover to other matters unrelated to what the commission had sought? When did the Government give this indemnity to the company? This is another example of the cart being put before the horse. We are discussing an amendment tabled after the horse has bolted. The Government has already given this indemnity. What, therefore, are we doing at this committee? Everything seems to have been done in advance of this committee having a say in the matter and of amendments being dealt with democratically. Even though we know the amendments can be defeated by seven to four every time, we are entitled to discuss them. Amendments are not law until they are passed by Dáil Éireann. Why, how and when did the Government give this indemnity to the company regarding the source code and matters far wider than it?

We did not give an indemnity to the company; we gave it to the commission.

Has that indemnity been given?

We understand it has.

When was it given?

We cannot give it until the Bill is passed, but if the Bill is passed——

When did the commission request it?

I do not know the exact date.

Was it given in writing?

Yes, it was requested in writing from the Government.

Can we have a copy of that request?

I will check that and if it is possible to provide it, I will get the Deputy a copy.

The Minister of State has not lost it, has he?

We do not have it.

I refer to the written request from the commission; the Minister of State must have that.

We will have to check if it is confidential to the commission and if it is not, I can get a copy for the Deputy.

What is confidential about it? There is a ministerial amendment before us based on it. We are entitled to know the background to it.

I will have it checked out.

Did the Minister of State say a while ago that an indemnity had been given, but now he has told us that it cannot be given——

It is subject to the legislation being passed.

Everything is subject to everything. It is like having the machines imported six weeks before this committee agreeing to that, but subject to the committee's agreement. Everything is being done backwards. It makes me wonder what is going on.

Can we postpone further consideration of this amendment until the Minister is in a position to let us know whether he will let us have a copy of the request from the commission?

We cannot postpone it because we must deal with amendments and sections consecutively.

This information is relevant to our consideration of this amendment. We were told that a written request was made by the commission.

The indemnity will be given but it will only be given when the Bill is passed.

I wish to return to the request by the commission which triggered this amendment. We know now that the request by the commission was made in writing and I have asked for a copy of it. That information is material to this amendment. The Minister of State said that he will consider supplying a copy of that request to the committee. I ask that we defer further consideration of the amendment until the Minister of State is in a position to let us have the letter.

The Minister of State can reply in his own way but we are discussing this amendment and we cannot——

It is——

I understand and have every sympathy with what the Deputy is saying and I also have serious concerns about this matter, but we discussed the amendment and we have to make a decision on it today. The Minister might be in a position to give a commitment as to how he might deal with this matter on Report Stage, but we are debating the amendment and we will have to make a decision on it today.

Can the Minister of State summarise what was in the request?

If this amendment is passed, the Minister will not table a similar amendment on Report Stage.

That is right.

Therefore, our chance of dealing with this alarming and serious issue will have been lost.

That is up to the Minister. He can table an amendment and an amendment can be tabled by the Opposition.

What was in the request?

It was a letter from the commission to the Government. The Government agreed to its request. I do not have a copy of the letter and I would have to check the legality and the confidentiality of the matter. If it can be put into the public arena, I will make it available, but if it cannot, I cannot do so.

To whom was the letter addressed?

I have not seen it, but it would have been addressed to the Government secretariat — not the Department — which was dealing with it.

This is all very mysterious. I will approach this matter another way. PTB is the company the Department asked to look at the source code, is that not right?

It is the international institute.

Am I correct in thinking it carried out the only examination of the source code? The people in PTB were the only other people who had the source code.

The machine source code.

The source code for the voting machines.

As the Deputy will be aware, there are two source codes: the source code in the voting machine and the other source code——

For the counting.

——for the election management and the counting.

Am I correct in saying that the source code for the counting software has not been examined by anybody?

This one has been examined by Nathean Technologies.

Nathean Technologies looked at the counting software and PTB looked at the voting machine software source code.

Did either PTB or Nathean Technologies request an indemnity when looking at the source code?

There was no request from PTB. Nathean Technologies made a non-disclosure agreement.

With whom did Nathean Technologies make a non-disclosure agreement?

With Nedap-Powervote.

The issue of an indemnity did not arise in either case, did it?

What has put the wind up the commission to look for an indemnity when neither PTB nor Nathean Technologies looked for an indemnity of that kind?

It would be logical to suggest that perhaps the company did not know to whom the commission may pass it on. The commission would have been new to the company, whereas Nathean Technologies and PTB would have been internationally credited and recognised institutions.

Leaving the source code issue aside, this amendment is to indemnify the commission against an action for any reason from anywhere. Did the commission look for that indemnity or for one in the case of the source code only?

I apologise for asking so many questions. If I had the letter, I would have the answer. In the absence of the letter, I must ask these questions.

If the Minister of State had the letter, he would have the answers.

I thought that was the letter arriving.

I do a little constituency work as well. It might be urgent. Somebody may have to go into hospital, as the Deputy will appreciate.

I thought that was the letter.

I am telling the Deputy it is not. It might relate to a more urgent matter for me and I ask the Deputy to leave it at that.

I apologise to Deputy Gilmore. The indemnity was in relation to all, not all of the section.

I acknowledge the Minister of State was distracted. Did the commission look for this blanket indemnity to cover everything or for an indemnity only in respect of the release of the source code?

One to cover everything.

I do not know.

Presumably it told him.

No. We have no dealings with it.

What has the commission stumbled on that has made its members so concerned about their exposure?

Having no direct contact with the commission, I suspect that it was using many different bodies to advise it on this matter. It is possibly for that reason that it wants global indemnity.

I propose that the committee defers further consideration of amendment No. 75 until the Minister of State is in a position to provide us with the information which we have asked for, including the request from the commission. The committee is being asked to approve an amendment to the Bill, the effect of which will be to provide a blanket indemnity for the commission against any type of claim which might be made against its members, collectively or individually. That may be perfectly reasonable, as far as the members of the commission are concerned. In fairness, the individual members of a commission such as this should not be personally exposed in circumstances like this.

However, I have difficulty considering and debating this amendment in the absence of the information for which we have looked. We are entitled to know what has prompted this amendment. We know, from what the Minister of State has said, that the private companies which looked at the source code on behalf of the Department did not seek an indemnity of this kind. Something has prompted the commission to seek this kind of indemnity. We are at least entitled to know what that is and to have more information on it than the Minister is in a position to provide us with now. I formally move that the committee defer consideration of this amendment until the Minister of State is in a position to provide us with the information relating to the background to it.

I second that.

Deputy McCormack, I want to deal with the proposal from Deputy Gilmore. He has put a request and I want to answer him. It is not possible for us to defer consideration of this amendment.

I am proposing that we do so.

It is not possible for us to defer it. If the Deputy wants a suspension for a few minutes, we can——

With respect, I have attended Committee Stage of Bills for the past 15 years and there have been many precedents for the deferral of consideration of an amendment for a variety of reasons. The committee is entitled to order the way in which it considers amendments. This amendment has been proposed, we do not have adequate information to consider it and I move that the committee defer consideration of the amendment until we have that information.

I second that motion on the grounds that this is an alarming development, that is, the provision of blanket indemnity cover against every aspect of what might happen down the line. We do not know what might happen down the line that would leave the State exposed to an obligation to cover. This is like signing a blank cheque and we know how dangerous that can be.

There is some experience in Government of signing blank cheques.

I was going to refrain from saying that. It is giving a blank cheque to cover everything or anything that might happen down the line and that is a very serious matter. The vital part of it is that this is being done without giving a proper explanation to the committee.

The commission requested that the Government indemnify it and each of its members against all actions and claims however they arise. The commission requested this and the Government provided it. The Houses of the Oireachtas are not a place for presumption but it could well be that had this not been given to the commission, we would not have a report by 1 May. If the letter can be put into the public domain, perhaps the Deputies might consider waiting until Report Stage but it is a matter for themselves. If it can be put in the public domain, any information that either I or the Minister can make available will be made available. If there is a question of confidentiality in legal aspects of it, then I will explain this at that time.

I will wait until Report Stage if the Minister of State withdraws the amendment until then. As Deputy McCormack pointed out earlier, if the Minister of State puts the amendment and it is accepted by the committee then it does not arise on Report Stage.

I will put it.

Chairman, I think you are required to put my proposal that we defer it first.

We have the rulings of the Chair.

What Chair is that, the Chair of the committee or Chair of the House?

I refer toSalient Rulings of the Chair: Second Edition. Under Committee (Third) Stage, General, Ruling 113 states: “Motion to postpone consideration of a section cannot be made when consideration of section has already been entered upon.” I have every sympathy for the position in which the Deputies find themselves and for the case they have made, but it is still open to them to table the amendment on Report Stage.

It is not.

Will the Minister of State give us an assurance that——

The Minister of State is not withholding anything. He has indicated that he does not have in his possession the information sought by the Deputy.

I accept that.

He also stated that he will endeavour, following our deliberations on the Bill, to locate and provide it.

That is fine. Will the Minister of State give an assurance to resubmit the amendment on Report Stage?

It could be resubmitted on Report Stage and dealt with then.

The Minister of State has indicated that he will be pressing the amendment.

This is not acceptable. I would not be making an issue of the fact that the Minister of State is not in a position to respond to our questions, particularly if he were not pressing the amendment. However, it is utterly unreasonable of him to press the amendment in circumstances where he is unable to answer the questions we have put to him on it. He cannot even tell us what is in the letter. The committee is entitled to this information. All we know is that the commission requested this indemnity and we want to know why. This seems strange, particularly in light of the fact that two companies considered this matter previously and did not consider it necessary to request an indemnity and were not provided with one. It is also strange that the scope of the indemnity is wider than the scope we are led to believe the commission sought in the first instance.

It is most unreasonable that the Minister of State will not give an assurance that he will resubmit the amendment on Report Stage by which time, if it is allowed, we will have seen the letter of request from the commission to whomever it was sent. We want to know the reason it should seek blanket cover. We are going to vote on a blanket cover for the commission which could expose the State to liability in respect of anything that might happen in the future. The cover to which I refer will not merely relate to someone stealing the source code, it will apply in respect of anything that might occur regarding the introduction of electronic voting. That is a serious matter.

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

  • Brady, Martin.
  • Cregan, John.
  • Gallagher, Pat The Cope.
  • Grealish, Noel.
  • Haughey, Seán.
  • Moloney, John.
  • Power, Seán.

Níl

  • Gilmore, Éamon.
  • McCormack, Pádraic.
  • Murphy, Gerard.
Amendment declared carried.

I move amendment No. 76:

In page 18, before section 29, but in Part 4, to insert the following new section:

"29.—For the avoidance of doubt, a poll taken for the purpose of any of the enactments referred to insection 1 may be held on more than one day.”.

This is to insert a new section. The purpose of the amendment is to increase the turnout at elections. I am suggesting that provision be made to hold polling over a number of days, rather than all on a single day. We all know of difficulties that arise for voters, people who are away from their home area, on business, for example, students who are studying at a location away from the place in which they would normally vote, etc. If the voting is spread over a number of days the possibility is increased of people being able to vote. If there is to be a move towards electronic voting the potential should be maximised to make balloting more accessible for the public. The amendment is simply to avoid restricting polling to one day.

This amendment proposes that elections or referendums could be held on more than one day. The question requires more consideration than just tabling an amendment. I believe the committee will agree that major costs would be involved and practical arrangements would need to be considered. If polls were held over more than one day the costs could double, without any improvement, if paper ballots were used. As an alternative to such a proposal, the cost of the equipment would be paid for in a short number of years with substantial improvements in the electoral system. What about the effect on schools used for polling? I do not believe that the schools should be closed for more days at each poll. The amendment is defective in so far as legal advice to me is that for constitutional reasons a referendum would be required if it is proposed to hold a Dáil election on more than one day. For those reasons I cannot accept the amendment. Other elections, of course, could be held over two days. However, the Constitution provides that Dáil elections must be held over one day. Deputy Gilmore refers to students, workers and people on business. It is true that they can be affected, but they may apply for postal votes.

Amendment put and declared lost.

I move amendment No. 77:

In page 18, before section 29, but in Part 4, to insert the following new section:

"29.—A registered political party or an organisation which incurs expenditure in relation to referendum shall comply with such spending limits as are prescribed by regulations made by the Minister.".

In this amendment I am seeking to introduce a requirement for spending limits for referendums. The McKenna judgment meant that the Government is no longer entitled to spend public money advocating one side of a referendum. It is now required to spend equal amounts arguing both sides of the question. That, of course, is what the Referendum Commission is for. We believe that a spending limit requirement of the kind proposed may be implicitly necessary under the Constitution to ensure equality in the conduct of referendums. Given that there are now spending limits in the conduct of Dáil and European elections, it strengthens our belief in the logic of the judgments given so far by the courts as regards the conduct of referendums and the requirement for equality as between the different sides advocating a change in the referendum. Clearly, one does not get that equality if there is open-ended provision for spending. Notwithstanding the restraints which are on the Government, if political parties or other organisations are free to spend any amount of money advocating a change in the Constitution, we believe there should be a spending limit requirement on referendum campaigns.

This amendment raises a major question requiring detailed consideration, as is evident from the debate on elections in which there are expenditure limits. Referendums are national polls which are not confined to a specific constituency. What limit could any Deputy have in mind? Is it right that the provision of information be limited at a referendum? The constitutional rights of freedom of expression would also have to be taken into consideration. A referendum is different from other polls in that people are being asked to amend the Constitution. To engage the electorate a robust debate needs to be articulated. This should not be restricted by expenditure limits. The Deputy has indicated in the past that the provision of impartial information by the Referendum Commission is not by its nature able to foment robust debate which attracts the voter. I am of the view that a limit, regardless of size, would be a source of political debate on each occasion and could detract from the discussion on the subject matter of the referendum.

I have a case for the amendment. I would like it to be put.

Amendment put and declared lost.
SECTION 29.

Amendment No. 78 is in the name of Deputy Allen. Amendments Nos. 79 and 80 are related, therefore, amendments Nos. 78 to 80, inclusive, may be discussed together by agreement.

Amendment No. 78 is in my name, is it not?

Amendment No. 78 is different.

It is the same issue. The Deputy should go ahead.

I move amendment No. 78:

In page 18, subsection (4), line 47, to delete "may decide" and substitute "shall".

We are now coming to the vital part of all elections, namely, the tally figures. That is what this amendment is about. It is called "statistical information" in the Bill. That is a fancy name for tallies. It is not spelt out in any way in this section whether or not this tally information will be available.

The section states that the Minister may, by regulation, introduce or decide what information could be made available. If the Minister does not make a regulation, there will be nothing. Despite several promises made on Second Stage and in public that this type of information would be available, the section does not state definitively that this information will be available.

Another part of the section indicates that the question of whether the secrecy of the ballot will be exposed will depend on the number voting in a particular area.

I am reluctant to interrupt the Deputy but wish to bring to his attention that there is a slight error on the list before me. Amendment No. 78 should have been listed under the name of Deputy Gilmore and amendment No. 79 should be in Deputy Allen's name.

Are the amendments being discussed together?

It is clear to me that there is a clampdown on the information which may be made available. The tally is a crucial part of elections, generates interest among individuals, the public and people interested in politics and is a vital part of the count day. Nothing is spelled out in the section on numbers.

Will the Minister spell out what number is involved? The ballot was never secret from the point of view that when a box with five or six votes in it is emptied for counting — and Deputy Grealish and I know this from our area, although I have more experience in the matter than Deputy Grealish because I have been counting for a number of years — no secrecy is preserved because it is quite obvious how the people in that particular polling station voted. For example, on one island off the west coast of Galway the five voters on the island voted the same way in every election, with the exception of one.

If another island off the coast of Galway has 50 or 150 people voting, the tally information should be available to the Deputies for the area. If, for example, on a windy stormy night I am invited to a meeting in a place where I got no votes in the previous election, I will not go to that place but will go out to Carnmore where I would get many votes.

Would the Deputy not take on the challenge?

No. The information available from a tally is vital. People must learn from that. I have often told people who came to me on deputations that they were speaking to the wrong person. There is only one polling booth in my constituency where I do not get a vote, but I told those people when they came to me that they were speaking to the wrong person, that I was not in a position to help them and that they should speak to the representatives for whom they voted. I have said that perhaps if they spread their vote the next time, we would all help them. This is quite legitimate and is a good reason for tallies to be available.

There was never any secrecy about the tallies and people in any area should not be ashamed of the way they vote. They have their legitimate reasons for the way they vote, that is the democratic process and I accept it 100%. Will the Minister spell out in this section what minimum number he has in mind? Shall, rather than "may", he introduce a regulation which will allow for tally information or statistical information as it is called in the section? Will he introduce a regulation permitting this between 1 May and the election date? What cut-off point does the Minister have in mind to avoid interference with the secrecy of the ballot?

The ballot was never secret from the point of view that accurate tallies were available and the smaller the box, the more accurate the tally. Tallies first began about 25 years ago. A solicitor from Tuam, Albert Cummins, may the Lord have mercy on his soul, claimed he was the first man to develop the system of tallying. The system has been perfected since with computers etc. Tallies are usually 99% accurate.

I have serious concerns about this section. The public is also anxious to retain the tally aspect of elections.

As Deputy McCormack said, we are dealing here with the issue of tallies. We know from the pilot trial in three constituencies that no tallies were produced on a box by box basis by the electronic voting system. This is a great pity.

I must acknowledge, however, that good new information was provided under the electronic voting system. It provided information capable of being analysed which was not available previously in elections. Good work was done by Dr. Aidan McNamara and others on the analysis of that information and in drawing some political conclusions from it.

The issue I have with this section concerns subsection (4). This subsection acknowledges that there are circumstances in which, if the tally information is provided officially, one can effectively conclude how individual people voted, therefore breaching the secrecy of the ballot. The problem, however, is that the decision as to whether that information is made available will be left to the discretion of local returning officers. The relevant provision in the Bill states:

Notwithstanding anything in regulations under this section, the returning officer or local returning officer concerned may decide not to allow for the provision of information referred to in subsection (1) in respect of any grouping of votes where he or she forms the opinion, whether by reason of the limited number of votes cast in an area or otherwise, that the provision of such detailed information in respect of that grouping of votes would infringe the secrecy of the ballot.

This provision exists notwithstanding anything in the regulations. The individual or local returning officers can decide whether to provide the information.

The reason for not providing the information does not have to be confined to the number of votes cast on the particular machine or in the particular constituency. It could be for any other reason the returning officer decides. This means a returning officer in one constituency may make one decision while a returning officer in another constituency may make a different decision. This would be daft in a local or general election. However, if, for example, in a presidential election or a referendum, individual returning officers conduct the count in their constituency and return the result to the national returning officer, we could have an absurd situation where, for instance, a returning officer in Galway West might decide to provide all of the tally information, but a returning officer in Galway East might decide not to provide any such information.

The Labour Party view on this is that section 29(4), as it stands, is unconstitutional in that it purports to allow the returning officer to decide whether to publish information, even if he or she is of the opinion that such information could infringe the secrecy of the ballot. Clearly, under the Constitution there can be no discretion in such a situation and the publication of such information must be prohibited on a mandatory basis. Otherwise, the section is contrary to the Constitution.

We propose that where the number of votes is so low that it would infringe the secrecy of the ballot, the information should not be provided. That is why, in amendment No. 80, we propose a limit on the number. We are saying that for constitutional reasons it is totally inappropriate that a decision not to publish data that could infringe the privacy of a voter should be a matter for the varying judgment of hundreds of returning officers throughout the country. The section of the Constitution dealing with the equality of voters envisages an objective standard for non-publication. The amendment suggests that the data should not be published when there are fewer than 100 voters.

As Deputy Gilmore said, the amendment provides that a returning officer shall not provide information about a poll when the number of voters is less than 100. The amendment has been proposed to maintain the secrecy of the ballot.

I would like to speak about the circumstances before the 2001 Act was passed. Less than ten votes may be cast in some ballot boxes, for example on the islands. I am aware of an island on which three votes are usually cast. One might have questions if the three people voted in different ways, but one can be quite sure if they all vote the same way. The system was not right because the secrecy of the ballot was not maintained. A threshold of 50 votes is set in the 2001 Act, so that boxes with less then 50 votes are opened in the view of those who are at the count, but not while they are at the table. Such persons cannot be at the table when such boxes are opened so that the secrecy of the ballot is maintained. I am not sure what happens in practice — that is a matter for the returning officer at each count.

Amendments Nos. 78 and 79 have been proposed because it is felt that a further textual change is needed in line 48. The Minister and the Attorney General are considering the level of information that can be provided without endangering the secrecy of the ballot. There is a threshold in place, as I have said, but a higher threshold may be set. It may be as high as Deputy Gilmore has recommended or a compromise may be reached. A high threshold would rule out a tally in many rural polling stations throughout the country. Tallying is part of the excitement of the count, but we have to maintain the secrecy of the ballot. Information must be made available by means of a regulation enacted before the date of the election. It would not be wise of me to accept the amendment's proposed threshold of 100, given that the discussions with the Office of the Attorney General have not yet concluded. The threshold has to be realistic, while ensuring that the secrecy of the ballot is maintained.

I am aware that a great deal of fun will be removed from the count process. It is not right that five people in west Galway or west Donegal should be deprived of my services because they are known not to have voted for me. I would never do that, although there are a few places where I do not get votes. I do not adopt such an attitude in respect of places where people do not vote for me. If such an attitude exists, however, it is vitally important that we protect the secrecy of the ballot to ensure that voters secure services from all of their constituency representatives. I have no difficulty with the principle of Deputy Gilmore's amendment, but it is a question of deciding on the threshold.

Section 29(1) states that "the Minister may provide, by regulations" for the provision of information. Can the Minister of State assure the committee that information will be provided? I do not like the use of the word "may" in legislation of this nature because it merely indicates that something may happen when, equally, it may not.

This is normal legislative language. I assure the Deputy that regulations will be introduced. I would like to see quite a low threshold because it would be appropriate to the areas I represent, not for any other reason. People like to know the tally information. The Attorney General's recommendation may be in line with Deputy Gilmore's preferred threshold; it may be lower or greater than it or a compromise may be reached.

A threshold of 100 may be appropriate in urban areas, but fewer than 100 people vote in many polling stations in rural areas. Such people are entitled to a tally, just as those who live in an area in which 500 or 600 votes are cast are entitled to a tally. It is a matter of percentages in the end. If 33% of 500 people vote in one way in an urban area, and 33% of 50 people vote in another way, the parties will still be getting 33%. I am not sure how statistical information such as tallies will be made known after the count is completed. Will every box be counted separately? How can that be done under the electronic voting system? Are we certain that every box will pertain to an individual place? Perhaps electronic voting can be used to ascertain major swings in certain areas if we can compare them to the tallies we had at recent elections. It may be possible to determine that 35% or 40% of voters in a particular rural area voted in a particular manner. Many questions will have to be answered if there is a big discrepancy in the electronic voting figures.

I am surprised that the issue is still being discussed with the Office of the Attorney General. The provision of tally information was debated in 2001, when the original Act was before the committee. The legal question of what one could or could not provide was considered at that time. That the subject is still under discussion with the Office of the Attorney General indicates to me that the legislation has been rushed. The issues that need to be dealt with have not yet been fully explored. Although consideration of the Bill on Committee Stage is ongoing, next week's Dáil schedule states that Report Stage will be taken then. It is strange that the Minister of State has said that the Attorney General has not yet made up his mind on this issue.

It is proposed to provide for the minimum number of votes that should be in a ballot box to enable it to be tallied by means of regulation. The provisions of section 29(4) will give a certain level of discretion to returning officers, however. It states that "notwithstanding anything in regulations under this section, the returning officer or local returning officer concerned may decide not to allow for the provision of information". It does not matter, therefore, what is set out in regulations. The returning officer will retain the power to make the ultimate decision "by reason of the limited number of votes cast in an area or otherwise". In other words, we have two constitutional problems. The decision whether to release the information will be at the discretion of individual returning officers. That means that different decisions will be taken in different constituencies. Therefore, the principle of voter equality, which is provided for in the Constitution, is breached.

The second constitutional problem relates to the basis on which the returning officers make their decisions. A decision not to allow for the provision of information may be made "by reason of the limited number of votes cast in an area or otherwise". In other words, the Government could produce regulations stating that information should not be provided if the number of votes cast is less than 50 or 100. It is obvious that the Government has not yet decided on the threshold. The returning officer will retain the power to decide to provide the information, regardless of where the threshold is set. Under this section, a returning officer could decide to provide information about the box with three votes to which the Minister of State referred earlier. The provision of information about a box from an island where five votes have been cast would constitute an unconstitutional breach of the secrecy of the ballot, even if the votes have been cast in a consistent manner over a long period of time.

It appears to the Labour Party that section 29(4) is unconstitutional. It would become constitutional if the section were to state a clear rule. This should not be left to regulation, which may be ignored in any event. The Government should decide that information about a box cannot be provided if the number of votes cast therein is below a certain threshold and there should be a requirement on every returning officer to comply.

As practitioners of politics, we all want to have tallies as they provide important information. At the moment we get an estimate; it is not a formal result. People lean over the barrier and mark off votes as ballot papers are turned up. If I was living on the island referred to, I could say I voted for Seamus Rogers, which I would, notwithstanding what the tallymen would say and I would probably get away with it but I would not if it was an official result.

What is the reason for giving returning officers the option on whether to provide statistical information? Why is it being left to individual returning officers who can have different opinions?

I wish to clarify a matter, in case the Minister took me up wrongly. I have never failed to represent the people who voted for me. I said that if it was a stormy night and I had a choice of going to two meetings, one on an island 20 miles away where I got no votes and the other in Carnmore or some such place, I would go to the place where people had asked me to represent them. I would have a choice in the matter. I would not be here today if I did not represent people on an even basis. If a meeting was not taking place in the location of my choice, I would go to the other one.

I accept the points made by Deputies Gilmore and McCormack. Subsection (4) provides for exceptional circumstances. It could be suggested that somebody voted in a particular way. I will come back to this point.

If we assume that the threshold is 100, 75 or 50, there will be a great deal of disappointment in rural areas but the Minister and the Attorney General still have to make up their minds on this issue. I have given an assurance that there will be a regulation specifying a threshold figure or percentage. For instance, if there were 20 votes, we could not allow 75% of them to be made known by way of tally. We have to be consistent. We cannot have a figure of 100 in urban areas and a lower one in rural areas. We cannot legislate in such a way. The answer will be to provide for a percentage, as Deputy McCormack suggested.

I will give consideration to subsection (4). If the amendment is withdrawn, I will discuss the matter with the officials before Report Stage. It may well be that it is not required. If the threshold is high enough, it will leave the returning officer with a great deal of discretion in exceptional circumstances but we would have to define what these might be. I will deal with the matter before Report Stage.

I thank the Minister of State for his concession in agreeing to remove full discretion from returning officers.

I did not say I will remove it; I have strong views on the matter.

Amendment, by leave, withdrawn.

I move amendment No. 79:

In page 18, subsection (4), line 47, to delete "may" and substitute "shall".

This amendment would almost have the opposite effect. It asks for a limit to be placed in places where there is a small amount but that point is now covered.

Amendment, by leave, withdrawn.
Amendment No. 80 not moved.
Question proposed: "That section 29 stand part of the Bill."

We had a considerable debate on amendment No. 75. The Government's obsession with pressing ahead with electronic voting gets stranger and stranger. Before any primary legislation was published, it advertised a tender competition and committed itself to using the Powervote-Nedap system. I found this strange and referred to it when the 2001 Bill reached Committee Stage. I expressed alarm to the then Minister of State, Bobby Molloy, that this had been done. It is incredible that a Department would hold a tender competition for a contract, which has ended up costing some €60 million, for something that had not yet been provided for in primary legislation. It is all the more incredible when the matter relates to something as fundamental and potentially controversial as a change in the way the people cast their votes.

Without any consultation with the Opposition, the Government made a unilateral decision after trials had taken place in three constituencies and the referenda that electronic voting would be pursued everywhere; that there would be a complete switch to electronic voting without discussion with anybody. This was contrary to the commitment given by Bobby Molloy to this committee and the Seanad when the original legislation wasbeing discussed. While the purpose of the legislation was to enable its introduction and provide for trials, the question of switching to electronic voting was to be the subject of all-party discussions but they never took place.

The third strange development was that while this committee was examining the issue prior to Christmas, the Government was deepening its commitment to Powervote-Nedap and the other companies concerned. At a point when we thought we had time to consider the proposal, Government members insisted on a division being taken at the committee meeting of 18 December. I believe they were prompted to do so by the Minister. I do not believe it was coincidental.

There is no evidence of that.

I am stating a belief.

The Deputy may believe it but I want to highlight my point.

I am stating a belief; it is no more than that. As we know, the contract was signed the next day. We now have a situation where not only has the Government committed €60 million of taxpayer's money to this combination of companies for a system which we still do not know will be used, but we also have this section which has been amended to the effect that no matter what happens — whether the system is used and works, no matter what problems arise with it or what the commission will have to say about it — the companies will get their money. If the commission does anything not to the liking of the companies providing the service, they will have an indemnity and can take the State for whatever amount they choose. The Government's relationship with them is becoming stranger and stranger. I put it to the Minister of State that the issue is now about money. Why has the Government made an arrangement with the companies concerned to privatise our electoral system in circumstances where no legislative basis has been provided for?

We have now gone full circle. If it goes wrong — if the commission recommends against using the system or if a future Government decides to stand down — no matter what happens, the companies concerned will receive taxpayer's money. The Government owes the public an explanation. What hanky-panky has there been between the Government and the companies concerned to which it has sold our electoral system?

Before the conclusion of the debate on this section, I must point out that my concern has increased every day I have been at this committee. I avoided coming yesterday because this is a frustrating place to be. No matter what we say or do at this committee, we are only highlighting our concerns about the way in which this matter is being dealt with by the Minister. I am no less concerned than Deputy Gilmore about what I have seen or my experience here. I have seen nothing, at this committee or elsewhere, to allay my fears. I wish I could allay them because it might be a good idea to introduce electronic voting if we were happy everything was right. What we have seen, however, is a mad rush to have the system implemented at any cost. Now we know the cost to the taxpayer whether it is implemented. The rush to introduce electronic voting at any cost has convinced me that the fears of the public are justified. There is no explanation for what I have seen happening.

My first real suspicions were raised on 18 December when we had a genuine discussion of the pros and cons of electronic voting. If we had advanced that debate and obtained answers to our questions, we might all have been able to say we supported electronic voting. However, the manner in which it was handled, with a vote immediately after lunch and so on, was suspicious. We subsequently discovered that €20 million worth of machines had been imported eight or nine weeks previously. That is unprecedented. It was an absolute commitment to the company concerned — the Government could not go back on the deal at that stage. Today, we have found that the foreign company supplying the machines and the source code is covered for any eventuality, including the commission's recommending that we should not proceed with electronic voting.

It beggars belief that we are being forced into a decision by a majority on Committee Stage. If this debate was taking place in the Dáil, at least all Members would be able to vote on the amendments. It looks to the general public as though we are being weak, with only three or four members voting against some of the proposals. While this manner of dealing with Committee Stage has its advantages, in this regard it is lacking.

I am astounded at what I have observed. I challenge the Minister of State again to explain the reason there has been such a rush to introduce electronic voting. Why have we put the cart before the horse in so many ways?

I have nothing further to add to my earlier comments.

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

  • Cregan, John.
  • Gallagher, Pat The Cope.
  • Grealish, Noel.
  • Haughey, Seán.
  • O’Donovan, Denis.
  • Moloney, John.
  • Power, Seán.

Níl

  • Gilmore, Eamon.
  • McCormack, Pádraic.
  • Murphy, Gerard.
Question declared carried.
Progress reported, Committee to sit again.