Select Committee on Finance and General Affairs debate -
Tuesday, 16 Nov 1993

SECTION 7.

Proinsias De Rossa

I move amendment No. 7:

In page 4, line 1, after "occurs" to insert "or he is officially notified by the President of the European Parliament that a casual vacancy will occur from a date specified."

One of our amendments, No. 16, I understand has been ruled out of order. The purpose of amendment No. 7 is to shorten the period for a replacement to take up their position. My understanding is that if the procedure proposed in this Bill is to take effect, it will take between 40 and 60 days for this replacement to take office. That seems to be too long.

I broadly agree with the purpose of what the Minister intends in terms of clarifying the procedure. As everybody knows. I went through this procedure myself and it was difficult enough at times to know precisely how the pieces of the jigsaw fell into place. What the Minister is proposing helps to clarify that. However, the process itself should start once the President of the European Parliament has been notified of a resignation. The clock should start ticking at that point rather than the reverse. I urge the Minister to accept the amendment.

Minister of State at the Department of the Environment (Mr. Stagg)

The difficulty I would have with the amendment as proposed is that there is no certainty that a vacancy exists, even though it has been notified, until it actually exists. Parliament itself makes the decision on the actuality of a vacancy. While the President could even notify the Clerk of the Dáil that he was fairly sure a vacancy would exist from a certain date notified by a Member, the Member could change his mind between that date and the actuality, thus remaining a Member. The Clerk of the Dáil could be placed in a position where he would have offered a position to the next person on the list and subsequently would have to tell that person that the offer was being withdrawn. It would create a new difficulty. Parliament makes its own rules for the notification of a vacancy and for us to try to pre-empt that in some way would be wrong and undesirable.

Under the existing situation, when the vacancy exists we are notified. We are specifying a time within which an offer must be made and an offer must then be accepted, which will shorten the period during which this situation could be dragged out. The procedure will be more precise than it was.

We would be in a much worse situation, however, if a Member said they were resigning from the 5 March next, the President notified the Clerk of the Dáil and the Dáil made an offer, and on the 5 December next the Member changes his mind. The Member would be entitled to do that and there would be nothing to prevent him from doing so. Somebody would then be claiming a seat in Parliament which somebody else had been offered. It is better to leave it with certainty, and the certainty is where the Parliament itself, under its legislation and regulations, declares a vacancy. That is when the clock starts ticking and it is better that it remains so.

We are not accepting the amendment for those good grounds. I accept and appreciate the point made by Deputy De Rossa that what we are proposing in this section will actually tighten up the procedures.

Proinsias De Rossa

I am not sure the Minister is correct. Once the Member signs the form in the presence of the President or the general secretary of the Parliament to the effect that he is resigning from a particular date, the vacancy takes effect on that date. The nomination of the replacement MEP, rather than the vacancy, comes before the Parliament. Speaking from my own experience under the existing system, the vacancy existed from the date of the signing of the form, which was done in the presence of the general secretary of the Parliament. At that stage the President notifies the Oireachtas that the vacancy will occur from a particular date.

Mr. Stagg

Section 12 of the European Assembly Elections Act, 1977, provides that in all cases the Assembly shall establish there is a vacancy and inform the member state thereof. This can only happen when the vacancy exists, which is from the date of resignation. This prevents us from setting the procedures in motion before that date. The procedures cannot start until the Assembly declares the vacancy. They cannot do so until the date of resignation.

Amendment, by leave, withdrwn.

Chairman

Amendment No. 8, in the name of Deputy Molloy, and amendment No. 11, in the name of Deputy Sargent, are related and may be discussed together. Deputy Molloy is not present.

Amendment No. 8 not moved.

Chairman

Amendments Nos. 9, 12, 13, 14 and 17 form a composite proposal and may be taken together by agreement. Is that agreed? Agreed.

Mr. Stagg

I move amendment No. 9:

In page 4, lines 2 and 3, to delete ", having regard to the provisions of subsection (10) of this section,".

Section 7 substitutes a new section for section 15 of the 1977 Act, which provides for the filling of casual vacancies in the Parliament. The purpose of the new section is to tighten up the procedures and to give a more positive role to the individual replacement candidate. Subsection (10) of the new section 15 as it stands provides that persons in specified situations shall be disregarded in determining for the purposes of the section if there is a name standing first, alone or next on a replacement candidate's list. If the subsection is read in a particular way it could be construed as imposing an obligation on the Clerk of the Dáil to adjudicate on the qualification of a replacement candidate for membership of the Parliament. This is not the intention. Adjudication is a matter for the courts.

Amendment No. 17 proposes to substitute for sections 10 and 11, which deal with the qualifications of a replacement to be selected by Dáil Éireann to fill the casual vacancy, a new subsection which is not capable of such an interpretation. The proposed new subsection (10) provides that a person shall not be regarded as having been elected to the Parliament under the section if he or she does not fulfil the necessary conditions in relation to eligibility. The new subsection (10) makes it clear that qualification of a replacement candidate for membership of the Parliament is a separate issue from the making of a request by the Clerk of the Dáil for a replacement candidate under subsection (2). Amendments Nos. 9,12,13 and 14 are consequential amendments deleting references throughout section 15 to the existing sections 10 and 11, which amendment No. 17 proposed to delete.

Amendment agreed to.

Mr. Stagg

I move amendment No. 10:

In page 4, lines 4 to 6, to delete "the time (not being less than 10 days from the day on which the request is made) specified in the letter" and substitute "20 days from the day on which the request is made".

Section 7 substitutes section 15 of the 1977 Act which provides for the filling of casual vacancies in the Parliament. The purpose of the new section is to tighten up the procedures and to give a more positive role to individual replacement candidates. Section two of the new section 15 requires the Clerk of the Dáil in effect to offer the vacancy to the person whose name is highest on the relevant replacement list. The Clerk of the Dáil must specify the time within which the person must respond. A minimum of ten days must be allowed for this purpose.

The subsection as drafted is not quite satisfactory to the extent that, while it specifies a minimum time for response, no maximum is specified. In theory at least it would be open to the Clerk of the Dáil to allow ten, 20 or even 100 days for a response in a particular case. On reconsideration it is considered more appropriate that a fixed period of response should apply in every case. The period must be of a reasonable duration to cover situations where, for example, the person concerned may be seriously ill or absent abroad. The amendment, therefore, proposes that up to 20 days will be allowed for a response in every case.

Amendment agreed to.

Mr. Sargent

I move amendment No. 11:

In page 4, to delete lines 12 to 15 and substitute the following:

"(c) in case the relevant representative so elected was at such election a candidate of a registered political party, he or she is a member in good standing as confirmed by the Clerk of the Dáil through a written declaration presented by the General Secretary or similarly representative specified officer of the registered party in question."

I ask the Minister to consider this amendment as a way of allowing the decision relating to a vacancy to rest, as far as possible, with the electorate, even though it is not possible to reopen an election if one has been held at which a member was elected. Given that it is hoped democracy will be exercised to the fullest degree, and if the Clerk is to be allowed to adjudicate on the person who will be filling a vacancy, there should be some consultation with the party which had a role in electing the member who has resigned. It is a way of ensuring the electorate, even though they may not elect a person to fill the vacancy, will at least be assured that the party they supported at the time has a role in ensuring the replacement is a member in good standing in their party. This would ensure democracy is exercised as much as possible even though the filling of a vacancy is slightly artificial.

Mr. Martin

I have nothing against the general secretaries of political parties but I am not sure they reflect the democratic will of the public. I am wary of the amendment if its intended aim is that general secretaries should reflect a broad democratic mandate.

Mr. Sargent

It is impossible to hold another election.

Mr. Martin

That cannot be done.

Mr. Sargent

Of course.

Mr. Martin

The replacement names should be on the ballot paper.

Mr. Sargent

I am speaking of the party which was connected with the person who was elected. Once elected, a person has certain independence. However, given that we are living in a democracy with political parties, if that person was standing for a party it seems reasonable that the party could say that the person is a member of good standing in the party. It is an affiliation form and also occurs at the beginning of an election.

Mr. Martin

In our party we had what was known as a great party pledge, the people who were elected on the platform of the party were expected to see the mandate through to the next Dáil election. However, everyone knows from recent history that did not pan out. If this proposal applied to Dáil elections it could have almost prevented the formation of the Progressive Democrats.

Proinsias De Rossa

I would also be somewhat wary of the amendment. The theory behind the system is that it is a mixture of the PR system and the list system. It is an attempt to replicate the continental list system without actually doing so. It is a classic Irish solution to an Irish problem.

The theory seems to be that in voting for candidate "X" on the ballot paper, the electorate is also choosing the substitutes on that ballot paper and, on the basis of the legislation, in the order which they are listed. Therefore, if a party can turn around at a later stage and by way of certification say that substitute "Y" is not acceptable to them for whatever reason — they may, for example, be challenging within the party on some issue and are no longer the favoured son or daughter — that would be an interference with what the electorate decided.

I also have problems with the form this election takes in terms of the substitute list because not enough attention is given, certainly in election campaigning, to the substitute list. Not everybody is necessarily fully aware of the purpose of the substitute list. It seems unwise to breach the principle that the electorate is voting for the candidate plus the substitutes in the order in which they are presented. Therefore, a candidate should only be ignored on the basis that one or other of the candidates, in the order they are represented, is either disqualified or is unwilling for some personal or political reason to serve.

Mr. Kenneally

I have reservations about the amendment. Take, for example, the scenario of two parties, party "A" and party "B" and four Euro-constituencies. Party "A" gets one person elected. Subsequently, something happens in that party and the person elected and all his substitutes move from that party to party "B". The situation then arises, if this line of thnking is to be followed, that there is nobody from party "A" on any list in any constituency, so how is the representative in the European Parliament chosen? It cannot be done. For that reason, regard must be given to the list of people who were actually there. They are the people for whom the electorate are voting.

Mr. E. Walsh

I am opposed to the amendment on the basis that the list which is compiled is done through the democratic process in the party which selects candidates for the election. In other words, it goes before a properly constituted convention in each of the parties. The delegates to that convention, who are properly structured according to the party rules, decide who is on the list and in what order. That is a much more democratic process and is known to everybody. The amendment suggests that the general secretary of the party may decide afterwards who should be a substitute. That would take the power away from those who originally decided on the list which was put forward for the election. It would go against the democratic process whereby delegates decide the isue at a properly constructed convention where everybody knows what is happening. On that basis I would oppose the amendment.

Mr. Boylan

At present, parties operate on A list and a B list and a candidate has one or more running mates. Following the success of one candidate, the defeated candidates automatically become the people the party will select if the successful candidate retires or dies in office. One then has a B list, the members of which are selected by a convention. People are missing the point here. Nobody gets on the B list without doing a lot of party work, canvassing and making themselves available to people.

There is quite a contest for the B list because people see an opportunity where, if somebody resigns or dies — although they would not wish that on them — in office, they would be in position for a future election. I was on the B list for this election. I offered myself as a candidate when someone resigned. The system works very well and I cannot see how one could improve on it. The Minister may have different views.

Mr. Stagg

These amendments provide for inclusion in the statutory procedure for filling casual vacancies, a requirement that the political party concerned confirm to the Clerk of the Dáil that the person concerned is still a member of the party. I have a certain sympathy with these amendments and I appreciate the points being made, however, we could create a serious problem if we were to accept the amendments.

We would be putting the Clerk of the Dáil in the position of having to adjudicate between a political party and a replacement candidate who is, was or claims to be a member of that party. The replacement candidate may have delivered to the Clerk, a statutory declaration duly sworn that he fulfils all the conditions necessary to succeed to the vacant seat, including being a member of the party concerned. At the same time, the political party may hand the Clerk a statement that the person is not a member of the party. What is the Clerk to do in these circumstances? He is not a court and he is not in position to establish which of the conflicting statements is correct.

We are seeking to give the Clerk a role similar to that of a returning officer at an election. He is required to receive certain documents. If the documents are regular and valid on their face, he is required to take certain action. If they are not regular and valid on their face, he must reject them and take another course of action. He is not and cannot be concerned with the intrinsic truth or correctness of the statements in the document. It cannot be his function to act as a judge and jury in the matter.

There is a built-in delay of seven days in the procedure. The purpose of this delay is to enable anybody aggrieved to take appropriate action in the courts. I believe the system proposed in the Bill will work. The revised procedures outlined in the Bill for filling vacancies are intended to strengthen the position of the individual replacement candidate vis-�-visthat of the party.

The changes arise from the circumstance of filling a casual vacancy in the Dublin constituency in 1992. This led to a Resolution of the European Parliament that our legislation be amended to provide that the order of priority of replacement candidates be fixed at election time so that no subsequent selection or confirmation procedure is required to determine a candidate's succession to a seat that has fallen vacant. Arising from that, we are changing the existing procedure to meet that requirement.

The people on the B list, selected in that order by the electorate, have priority over any other decision made by an political party in any form. I ask that the amendments be withdrawn. The requirement of a statutory declaration from the candidate in stating his case for the vacancy is a strong measure and one that is not required anywhere else in our electoral procedure. The making of a false statement on a statutory declaration is a serious offence.

Mr. Sargent

I recognise that progress has been made with the legislation in terms of tying up some loose ends. However, the discussion has given me an interesting insight into the opinion of other parties of their general secretaries being all-powerful people. When I tabled this amendment down I thought that general secretaries were servants of the party.

Mr. Martin

Give them a chance.

Mr. Sargent

In the Green Party they do not have the degree of power that has been mentioned here and they can certainly be let go if it came to that. I do not know what the contract terms are for other parties.

In this amendment I was concerned that the party should have a role and, far from posing a problem for the Clerk, it should allow the Clerk to refer the person to the party if there is a problem. The solicitors will be delighted to hear that it can be resolved through the courts. It will be another few bob in the coffers for them. It raises the question: if the person is elected as a candidate for a party, is the person independent after he or she is elected? Does the person have that autonomy? Should the party have a role?

I understand that in a perfect world there would not be a problem. The person would be a candidate of longstanding in the party and would remain that way. However, take as an example the situation that arises if the list peters out. The person who was on the list may at the time have taken a career break to pursue a political goal and, on failing to be elected, discovered that they could no longer afford to be involved in politics. Sad though that may be it is often the truth in these times. Perhaps the person tried to build up a business or took some other career path and, having got involved in something else, the person finds that he or she is a replacement MEP. What will the person do then? It is the law so the person must accept it or stand down. However, it effectively disenfranchises the party which ought to be involved. The inclusion of such an amendment would allow the party and the people who support the party to be involved. I am not pressing this amendment.

Mr. Finucane

I understand Deputy Sargent's thoughts on this matter. Is there any limit to the list and its sequence? Let us say that a party runs one candidate for the European elections. Many people use the EC convention as a platform not necessarily for the European election but perhaps for a subsequent Dáil election.

Mr. Martin

Is the Deputy worried?

Mr. Finucane

No, I am not. In that situation the person may not be contesting the convention with the European election in mind. After all, if the person is number three, four or five on the list it is unlikely, assuming his party wins the seat, that co-option would reach number five or number six. The objective of the person would be to use it as a launching pad. It would look well on the literature for Dáil elections afterwards to say that the person was previously a reserve panellist for the European election.

We use the word "democracy" and we know the convention selects a candidate. However, it is important to remember that whether 100 or 200 people attended a convention, the percentage of the people who vote is extremely small. Although we may say that democracy lines it up for delegates at a convention, I do not think that if one person is selected but one ends up with candidate number three from a B list that it reflects the democratic wish of the electorate. The Minister has a problem because, as the list is in order of priority, most parties will go for a long list in order to cover all eventualities. Are there stipulations linked to that list?

Mr. Currie

The longer this discussion goes on the more I worry about it. There are too many loose ends. I know that in politics everything cannot be tied up. People talk about all eventualities but we must be realistic. We are political animals and some of us have been in the politics game for a long time. In politics it is not possible to cover all eventualities, particularly when it comes to such matters as nominations to Parliament. It would not even be possible to cover all eventualities when dealing with nominations to local councils. When it is a matter of a nomination to the European Parliament, with all that that involves, there is no way that all the eventualities can be covered. The best political and legal brains could not cover all the eventualities. This, for many of us, is the attraction of politics, the fact that it is not a scientific game.

Someone will always come up with something that nobody else has thought of. I am concerned about that. What legal advice has the Minister taken in relation to this? At the end of the day, the matter is one of accreditation by the European Parliament. Presumably the European Parliament would say that they have decided to accept this person into membership, or that they have not accepted this person into membership. They may not be operating under the same rules as we are. They are all used to the list system in terms of their national parliaments as well as the European Parliament. We are not used to the list system. Our system is different. Some of us think we must be better off if we had a list system. I feel strongly that we would be better off with a list system, or a modified version similar to the German one. But it is up to the European Parliament to decide who is accepted and who is not and therefore has the Minister taken advice in relation to this? Have no doubt about it, at some stage this will be challenged and probably in ways that we have not considred. Is the Minister sure that he has taken sufficient legal advice, not only in the Republic of Ireland, but legal advice as to what the situation might be in particular circumstances in Europe? It would not surprise me if the first challenge to this came from this country rather than from any other member state of the European Union.

Mr. Broughan

Was it not the Progressive Democrats who had a difficulty in regard to the whole operation of this system in recent times? The democratic mandate is the key thing and people vote for a list. That is the key decision, not subsequent decisions of apparachiks in the Green Party or any other party. Following on Deputy Curry’s point, surely our European brethren are very familiar with list systems? On a point of information from the Minister, what is the exact formula which the B�ndestag or the Parliaments of the L�nder in Germany use when the list is exhausted? As far as I can see from observing European politics, is it not the case that the strongest possible candidates are placed before the electorate and then simply drop out and the list in European terms becomes the basis of who becomes members of the European Parliament?

Mr. Stagg

I simply do not have the information. I am not that familiar with their system. It is quite difficult. My thanks to my colleague for an easy question. All eventualities can be covered very simply if we have by-elections rather than filling from lists, but that system did not find favour with any of the political parties represented in the Oireachtas. That option is not available to us arising from that. Because the Dáil is not sympathetic to the system which is available to our British colleagues — for example, the British parliamentary system allows for by-elections for the European Parliament — we are trying to cover as many eventualities as possible. We are not putting the onus on the individual who is placed on the list by his political party or who is independent and is eventually put there by the people and that gives him primacy. We are putting the onus on the political party to disprove his claim and we are not asking the Clerk of the Dáil to be the judge and jury in that matter. Where there is a dispute, rather than telling the individual to go to the High Court, we are telling the political party — which is a corporate unit and can probably better afford to go to the High Court than an individual — that it would have to go to the High Court. It would probably have more credit available to it than a private individual. The benefit is being given to the individual candidate who has been put in that position by the electorate. That is the thinking behind that.

The point was raised about the list being exhausted. The list may become exhausted in certain circumstances and the procedures for then finding a replacement are not changed from those existing where the Dáil picks a replacement from the other lists in that constituency. If all the other lists also become exhausted that eventuality is not covered. I do not foresee a need to cover that eventuality. That would likely remove the nomination from the party or from the political area of the original nomination.

Proinsias De Rossa

Can we give the Minister a list for South-Central?

Mr. Stagg

The limit on the list is specified in legislation. Where there is one candidate there may be four on a substitute or B list, where there are two candidates there may be six on the B list and where there are three candidates there may be seven on the B list. We should lend more importance to the substitute list as it is the type of system we have decided to use, by ensuring that the public are more aware of the list and its importance. We are examining — although we do not need to put it into legislation — how to give more publicity to the existence, the nature and the content of the B list as well as the candidates. Perhaps the political parties should also do something along these lines to publicise their B lists with their candidates. Most political parties do that to a certain extent but the primary publicity would be given to the A candidates, so to speak.

With regard to the legal advice taken, the Bill was drafted in the Attorney General's Office and I would assume that all the required legal advice would be available in that office.

Amendment, by leave, withdrawn.

Mr. Stagg

I move amendment No. 12:

In page 4, line 20 and 21, to delete ", having regard to the provisions of subsection (10) of this section,".

Amendment agreed to.

Mr. Stagg

I move amendment No. 13:

In page 4, lines 26 and 27, to delete ", having regard to the provisions of the said subsection (10),".

Amendment agreed to.

Mr. Stagg

I move amendment No. 14:

In page 5, lines 8 and 9, to delete ", having regard to subsection (11) of this section,".

Amendment agreed to.

Mr. Hogan

I move amendment No. 15:

In page 5, line 16, after "selected" to insert "provided that that person is a representative of the registered political party causing the casual vacancy".

The reason for this amendment is that a situation may arise where the B list may become exhausted. In the legislation proposed in this Bill it would mean that Dáil Éireann would fill the casual vacancy in that instance. I am aware that it is the primary responsibility of political parties to ensure that they have sufficient numbers on the list and also sufficient numbers of people who are likely to take up the position if offered. However, there might be an unusual situation arising where for some reason a person on the B list may not be in a position to take up a casual vacancy. It might be because of death or from being abroad or what ever reason, and the list then requires the approval of the majority in Dáil Éireann at the time.

I believe, and this goes back to the point made by Deputy Sargent earlier that it is difficult to draw conclusions in this legislation and make amendments which will cover all options. Perhaps in this instance, rather than having the matter referred to the Dáil for a majority ruling on the situation, irrespective of who is in or out of Government, the political party from which the vacancy has arisen should have a role in proposing the nominee to fill the vacancy. Through no fault of the political party concerned, the list may have been exhausted. While such circumstances may not arise too often, and hopefully they may never arise, it is desirable to consider this for the section and I look forward to the Minister's views on the proposal.

Mr. Boylan

I support Deputy Hogan's reasonable proposal. I accept that political parties should ensure that they have sufficient people. As Deputy Currie pointed out, we will never be able to provide for all eventualities but certainly as they become apparent they should be provided for. There is an understanding in local government politics that where a person resigns or dies in office the party of which he was a member has the right to nominate, irrespective of the party's position at local level. This is largely accepted throughout the country and all we request is that the same principle would apply at national level in the Dáil, namely, that the party whose seat becomes vacant has the right to nominate in the Dáil. It is not an unreasonable request and if anybody believes that they are going to grab everything they should remember that politics change and majorities change.

Mr. Sargent

I support this amendment which seems to be related to the one I proposed. I would support it even if the Green Party had a majority in the Dáil. Although we are talking about democracy and giving people a say, the legislation seems to be doing the opposite. The rules are thrown away and the Dáil makes a decision, effectively putting a Government nominee into the seat which a party had spent a long time cultivating. How can the Minister justify not supporting this reasonable amendment? Since he did not support earlier amendments, such as the one in my name, could he not support this as a compromise? There is a precedent for this in local politics. A generous, magnanimous understanding to this effect exists at local authority level if someone dies or leaves a seat. It was known as a gentleman's agreement.

Mr. Molloy

The Deputy has not been educated yet; it does not apply everywhere.

Mr. Sargent

I am sure the Deputy can speak from the experience in his own area; I too can speak from experience. An agreement exists that the party that won the seat retains some rights in the matter. A list can be exhausted through no fault of the party, for reasons of career, death or emigration, for instance, and that must be borne in mind. We live in a volatile time.

Mr. Penrose

This is a worthwhile amendment. A winner-takes all mentality reflects badly on those involved. The electorate would take an adverse view if that position was adopted. Generally there are gentlemen's agreements at local government level but it does not prevail throughout the country. That is a pity because it is a simple way of ensuring the democratic will of the people is reflected at all levels. I appeal to all political parties to adopt the procedure that vacancies would be filled by the political party whose member has left or died.

This amendment only operates where the list becomes exhausted and there are no further processes that can be pursued to fill the vacancy. That puts an added onus on the political party involved to ensure there are enough people on the B list to take up the position if and when it becomes available. However if at all possible, and even within the Dáil or the Oireachtas as a whole, some agreement should be put in place that would reflect the will of the people. This should not be a Government or a majority party decision, it should be provided that the people's wishes will be followed. The electorate always takes umbrage at a greedy mentality.

Mr. M. Ahern

First, any political party which does not ensure it has sufficient numbers to take up vacancies does not deserve to get a seat. Second, there is no obligation on the Dáil to fill a vacancy. My point is that any political party which does not have sufficient numbers on the list does not deserve to be a political party.

Mr. Martin

This is a very interesting debate. Looking at the principle of this amendment, and Deputy Sargent's earlier amendments, who owns the seat? Is the seat the property of a political party or the people? I take the view that it is the property of the people, particularly in the European parliamentary context. If one looks at recent voting and electoral trends one will clearly see, particularly in European parliamentary elections, that the electorate tends to vote more for a personality than a political party.

There was a wonderful illustration of that in the 1989 European Parliament election which was held on the same day as the election for Dáil Éireann. People going into the ballot boxes made two different decisions. In the Dáil election they voted more for the political party and in the European election they voted very differently. I do not want to be party political but that was reflected dramatically in my own constituency where the PD European candidate did exceedingly well but in the Dáil election the party vote dropped by about 50 per cent of their previous vote.

There is a view here that the seat belongs to the party but I am not sure that is valid any longer. By and large the percentage of people voting for personalities is growing and is greater than the percentage voting for political parties——

Mr. Sargent

—— Deputy Martin without interruption.

Mr. Martin

It is not the only point in this amendment. It is coming across strongly in the debate so far on this amendment that some of the poitical parties should be dictating who becomes replacement candidates. The more I hear the more I believe that a by-election is the best alternative.

Mr. Sargent

We would agree with that.

Mr. Martin

That is my personal view at this stage but the Minister has outlined why all parties in the Dáil were not agreeable. The next best step is that a list of people will go before the electorate. I do not think after that that parties have a right to supersede that democratic process where people are given a substitute list on a ballot paper. They vote on the basis of the A list, the candidates, and then on the substitutes in case of vacancies arising. That democratic process should not be interfered with.

Proinsias De Rossa

The point Deputy Martin makes is important. It is not just a matter of who gets the goodies. What type of system are we talking about? Are we talking about a system which would be fundamentally democratic? As I said earlier, the substitute list system we have is a compromise on the type of list system they have on the Continent and it falls short of giving the people the right to make a choice at a given time. Nobody would accept for instance that Dáil vacancies should be filled by way of a list attached to the names of candidates who have been elected. Arguably it would be a negation of the people's right to make a decision as to who should fill a vacancy for the Dáil. Our legislation is currently defective in that area because there is no obligation on the majority in the Dáil to hold a by-election for Dáil vacancies within a specified period. As I said, that is only partly related to the issue.

As I understand it, there is no obligation in this legislation to fill a European parliamentary vacancy within a specified period either. I also have doubts about the idea of the Dáil filling a European parliamentary vacancy. It may be better to proceed by way of enlarging the list which would be presented to the electorate at the time of the European elections, so there would be an element of choice available. In presenting a list, the electorate have obviously no right to say they want candidate Y to replace candidate B — the one they elected — because that choice has not been presented to them. On balance, it would seem to be better to enlarge the list to the point where it would not be up to the Dáil to provide a replacement in this way.

The assumption in this debate so far with regard to replacements is that first all the vacancies will occur among Opposition parties and second, the parties in power will be so greedy that they will refuse to allow a nomination from an Opposition party to get through.

A Deputy

They have not denied that.

Proinsias De Rossa

I suppose, on the basis of experience, it would be doubtful that they would do this. It is not a good procedure to hand it over to the Dáil. I would rather see the lists expanded so that this practice would be, in all probability, a rare occurrence. As I understand, it, this has not yet occurred in any event. I am not sure that this Bill has arisen because of my resignation from the European Parliament, but aspects of it have. We need to give more thought to replacement lists and if it could be made possible for candidates to nominate up to ten substitutes, one could rule out any possibility of it going before the Dáil and that would be, on balance, a more democratic way of approaching the matter.

The problem I have with the amendment is that it is assumed that vacancies will only occur among members who are in registered political parties. The election of non-party candidates has been a tradition of European elections. If T. J. Maher decided to resign tomorrow and this amendment was in place, it would not solve this problem. The Minister might consider undertaking an expansion of the lists.

Mr. Nealon

In politics, we should not leave too much to a gentleman's agreement. It is not that we are not all gentlemen in politics, but no matter how much of a gentleman one is, the party Whips can exert a lot of power on the individual. We should seek to copper-fasten this situation as best as possible.

Deputy Martin raised an interesting point, whether the seat belongs to the party or the people. If we say it belongs to the people — and I agree it does— we must agree with Deputy Hogan's amendment. Many of those who originally voted, but who did not have the opportunity to vote for people on the B list, did so on party rather than on personality lines. By following a true democratic line, their choice from the B list would be the representative of a particular party.

Deputy Currie made the point that it is impossible to cover every existing situation. In fact, some situations have arisen in politics of which we could not have dreamed. What would happen if Fianna Fáil were abandoned nationally? It would be impossible to cover that contingency, yet it happened in County Clare. Why could it not happen nationally? There are contingencies which we cannot cover, but we should seek to cover as many as possible. This is covering a contingency in democratic fashion. If the Minister is a true democrat, which I know he is as he belongs to a party which espouses democracy more actively than many other parties, he does not have any alternative but to accept Deputy Hogan's amendment.

Mr. Molloy

I want to inquire about the replacement list before I make my contribution. Are there five names on the replacement list?

Mr. Stagg

There are five names on the replacement list for one candidate, six names for two candidates and seven names for three candidates.

Mr. Molloy

Is it five names for one candidate and six names for two candidates?

Mr. Stagg

Yes.

Mr. Molloy

Therefore, it works for both. In the extraordinary event of the five people on the replacement list not being available to take up the vacancy, the matter would be decided by the Dáil. Most democrats would not like the replacement to be filled in this manner. This was included in earlier legislation as a fall-back. Now that we have an opportunity to examine the legislation and revise it, I suggest that the Minister accept an amendment of this kind or extend the list of replacement candidates from five names per candidate to ten names. By doing so, he would exclude the possibility of bringing in this provision.

In the event of this amendment being accepted — I am sorry I was not here earlier to press the point I was raising in my amendment about membership of a political party — the Bill makes provision for recording the membership in relation to replacement. If a person is one of the five on the list he must be a member of a political party.

Chairman

We have already dealt with this earlier.

Mr. Molloy

I am dealing with amendment No. 15.

Chairman

The question of membership has already been dealt with in your absence.

Mr. Molloy

I prefaced my remarks by stating that in the event of this amendment being accepted, the question of membership of a political party would arise. If it has been explained, I am sorry to ask the Minister to repeat it. If this amendment is accepted, this matter will arise again. Could the Minister tell me what provision is in the Bill to establish a replacement candidate's membership of a political party?

Mr. Stagg

This amendment seeks to give political parties the right to name replacements who have never been before the public. This is unacceptable to the European Parliament which passed a resolution telling us that this form of replacement is unacceptable. In the most unlikely event of a replacement list becoming exhausted, the political party would then choose someone who had never been before the public.

Mr. Hogan

That is what the Dáil would do.

Mr. Stagg

That is not what the Dáil would do as it is prohibited by legislation. Deputy Hogan is proposing that his political party, without any reference to the electorate, would select a replacement. This is unacceptable in Europe and at home.

The system which has been in existence since 1984 is that the Dáil must select only from the other lists in the constituency, not necessarily from their own lists. That is what is required. A replacement person must be someone who has gone before the electorate and been elected. Deputy Hogan is trying to give the political parties the right to name a person who has never been before the public. That is unacceptable. The arguments the Opposition is making about democracy ——

Proinsias De Rossa

The arguments were heard from the Minister's side also.

Mr. Stagg

I heard them from all sides. There was a misunderstanding about the nature of the replacement system and the fact that the Dáil could select anyone it wanted. The Dáil is confined to the lists in that constituency which were put before the public. It would be unacceptable to allow political parties to nominate one of their own people.

Mr. Nealon

That is not what the amendment is about; it deals with the possibility of the lists being exhausted.

Mr. Stagg

In the event of the lists being exhausted, only people on other lists in that constituency can be considered by the Dáil.

Mr. Nealon

That is not right.

Mr. Stagg

Deputy Nealon is saying he will invent another person who is a member of a political party and who has never been before the public.

Mr. Nealon

The A list did not go before the public.

Mr. Stagg

The European Parliament resolution will not allow that procedure.

Mr. Nealon

The European Parliament?

Mr. Stagg

The European Parliament resolution says that all replacement people must be elected at the same time as the primary candidates. I will read the resolution if the Deputy wishes.

Mr. Molloy

May I ask the Minister a question?

Mr. Stagg

The Deputy may not ask me a question. The Deputy had an opportunity to move an amendment earlier this morning and he was not here to do so. He tried to intervene and debate another Deputy's amendment. I am not allowing the Deputy to ask me questions at this stage. He may do so later if he wishes.

The question was raised about the size of the lists.

Mr. Molloy

On a point of order, surely it must be in order to ask the Minister a question?

Chairman

Yes, on the section only.

Mr. Molloy

Of course. I did not say I would ask something extraneous.

Chairman

With all due respect, you did try to do so earlier by discussing your amendment which you were not here to move.

Mr. Molloy

I find this extraordinary. May I ask a question? I do not want to interrupt the Minister, but I want an opportunity to ask him a question.

Mr. Stagg

I am sure the Deputy will have an opportunity to ask questions.

Mr. Molloy

I do not want to interrupt the Minister if he is not finished.

May I ask a question when he is finished?

Mr. Stagg

I am sure the Deputy may. The size of the lists has been mentioned. There is a possibility to have that extended to cover the most unlikely eventuality of six replacement candidates disappearing off the face of the earth between one election and another. I am not sure how far lists can be extended. Does the Deputy want 20 or 100 candidates? Does he want the names of every member of a political party added as a possible list? Six names is the norm for two candidates and five names for one candidate. These lists have never been exhausted; this situation has never arisen and it is highly unlikely to arise. The replacement must be a person who has gone before the electorate. It cannot be any other way.

Mr. Hogan

As the Minister pointed out, the purpose of this amendment is to deal with the unlikely event of the list being exhausted. Five years is a long term of office in any parliament. One cannot say this eventuality will not occur and I am trying to introduce a system of fairness in the unlikely event that this might happen. Deputy Penrose rightly pointed out that in local government there is a gentleman's agreement in regard to this matter which has worked well throughout the country.

Mrs. Doyle

It used to work well.

Mr. Hogan

We cannot leave this to chance.

Mr. Stagg

With Deputy Hogan's permission, may I read the section in the European Parliament resolution which we are trying to implement? Replacement candidates are likewise elected at the same time and their order of priority is fixed so that no subsequent selection or confirmation procedure is required to determine such a candidate's succession to a seat that has fallen vacant. If passed, Senator Hogan's amendment would raise difficulties in meeting the requirements of the European Parliament resolution.

Mr. Hogan

If this amendment is passed, the Minister would have no problem renegotiating those principles in the European Parliament given his democratic position. I cannot accept the Minister's argument that this is an antidemocratic measure. If a party nominates candidates in a constituency, such as Leinster and wins 25 per cent of the vote, it will win one seat. If there is a vacancy on a casual basis in relation to that seat and if the remaining four or five candidates on the B list are unable to fill that vacancy in three or four years' time, the political party who got 25 per cent of the vote should fill that vacancy. That is democratic, not anti-democratic.

Mr. Stagg

The Deputy must make sure he has a list.

Mr. Hogan

In the case of Independent candidates, one cannot legislate for every eventuality. There is support for Independent candidates in European Parliament elections and that has been proven. Mr. T. J. Maher and Mr. Neil Blaney were mentioned. Mr. T. J. Maher is also entitled to a B list and I am sure those on the list are available. However, in the unlikely event that they are unavailable, Fianna Fáil and Labour will fill that seat under this legislation.

Mr. Stagg

The Dáil will.

Mr. Hogan

The majority in the Dáil will fill the vacancy. The Minister said this would be an anti-democratic way of filling the casual vacancy. If the Dáil became involved in filling the casual vacancy, it would not necessarily reflect the democratic wishes of the electorate.

Mr. Stagg

Europe will not allow this proposal.

Mr. Hogan

Europe, like the Minister, may not have thought of all the eventualities. I am trying to anticipate a problem which might arise. I agree it is a long shot, but if we are to tie up all eventualities in this legislation, it must be considered. The wishes of the electorate in European Parliament elections should be conformed with and representation of political parties who received support should be reflected for the full term of office.

Chairman

It is now 12.45 p.m. and we agreed to adjourn at 12.45 p.m. until 2.30 p.m. If the amendment is being pressed we cannot finish for another 20 to 30 minutes.

Proinsias De Rossa

Question Time in the Dáil is at 2.30 p.m. and we will not have a full house if there is a vote.

Chairman

The Minister has a commitment at 1 o'clock.

Mr. Molloy

Having a meeting on a Tuesday morning is not suitable for a member of the Progressive Democrats because we hold our parliamentary meeting at that time. If it has been agreed to adjourn this meeting at 1.45 p.m. I request that we adhere to that agreement so that I may return to my parliamentary party meeting.

Chairman

This was agreed the last day the Committee met. I do not believe you objected to holding this meeting at this time.

Mr. Molloy

I did not object, but I am drawing attention to this for future reference. It is unfair to hold a meeting when a parliamentary party is meeting.

Chairman

The same applies to other parties which hold their meetings during sitting times.

Mr. Nealon

If one follows the logic of this Bill the Progressive Democrats could be represented here by representatives of other parties.

Poinsias De Rossa

Amendment No. 16 has been ruled out of order so this is the last amendment.

Chairman

If members believe we can finish by 1 o'clock, I am prepared to continue until 1 o'clock. Is the amendment being pressed?

Mr. Hogan

Yes.

Mr. Nealon

Before we conclude, regardless of what is in existing European Parliament regulations, the European Parliament is a political body and we should not ask one party to give their seat to another party.

Chairman

A vote has been called.

Amendment put.

The Select Committee divided: Tá, 11; Níl, 13.

Tá
Boylan, Andrew.	Finucane, Michael.
Connaughton, Paul.	Hogan, Philip.
Currie, Austin.	McGrath, Paul
De Rossa, Proinsias.	Molloy, Robert.
Doyle, Avril.	Nealon, Ted.
	Sargent, Trevor.

Níl
Ahern, Michael.	Hilliard, Colm M.
Briscoe, Ben.	Kenneally, Brendan.
Broughan, Tommy.	Kenny, Seán.
Ellis, John.	Martin, Micheál.
Smith, Brendan.	Walsh, Eamon.
Upton, Pat.	Stagg, Emmet.
Wallace, Dan.

Amendment declared lost.

Amendment No. 16 not moved.

Mr. Stagg

I move amendment No. 17:

In page 5, to delete lines 48 to 52, and in page 6, to delete lines 1 to 17 and substitute the following:

"(10) A person shall not be regarded as having been elected to the European Parliament pursuant to this section if he is, for the time being—

(a) a representative in the European Parliament,

(b) not eligible for election under this Act to the European Parliament,

(c) a person who, by virtue of any provision laid down under the treaties, is not entitled to assume the office of representative in the European Parliament,

(d) not willing to assume such office, or

(e) in case—

(i) the vacancy concerned is not one to which subsection (5) of this section applies, and

(ii) the relevant representative elected under this Act to the European Parliament at the last proceeding European Parliament election was at that election a candidate of a registered political party, a person who is not a member of that party.".

Amendment agreed to.

Question proposed: "That section 7, as amended, stand part of the Bill."

Mr. Molloy

I would like to ask a question about the mention of the replacement list. If the elected Member stands down the mechanism in section 7 is put into operation where a person is selected provided that he is a Member of the political party, but how is that determined?

Mr. Stagg

The replaced Member is required to make a statutory declaration on a number of issues, including his membership of a political party; that is how it is determined. If there is a challenge it is up to the political party to challenge it rather than the individual, but a statutory declaration is a very strong influence. We discussed this in detail earlier and the amendment was agreed to. The onus is on the political party to challenge, if it wishes to do so, rather than on the individual who was the candidate.

Question put and agreed to.

Sections 8 to 10, inclusive, agreed to.

Title agreed to.

Report of Select Committee.

Chairman

I propose the following draft report:

The Select Committee has considered the Bill and has made amendments thereto. The Bill, as amended, is reported to the Dáil.

Is that agreed?

Report agreed to.

Ordered to report to the Dáil accordingly.

Chairman

I thank the Minister and the Members for their co-operation in finishing today. I would also like to say a special word of thanks to the officials from the Department who briefed us prior to the commencement of the debate, and who have been helpful to us throughout.

The Select Committee adjourned at 1 p.m.