I move amendment No. 57:
In page 57, subsection (2), between lines 30 and 31, to insert the following:
"(b) the performance by that local authority of its functions (including as respects the consistency of such performance with the objectives of the Authority),
(c) the coordination of the activities of Dublin local authorities,”.
I move amendment No. 59:
In page 58, subsection (4)(b)(i), line 29, after “the” where it secondly occurs to insert “draft”.
This is a technical amendment.
I intend to bring forward amendments to section 68 on Report Stage to strengthen the provision of empowering the mayor to formulate multi-annual regional budget frameworks to which local authorities will be required to have regard in adopting annual budgets. The technical drafting of this provision was not completed in time for Committee Stage. In the context of this proposed Report Stage amendment, section 68(4)(b)(i) to which the amendment proposed by the Labour Party relates will be deleted. Accordingly, I ask the Labour Party to withdraw the amendment.
I welcome the Minister's proposals to strengthen the mayor's budgetary powers.
Amendment No. 60 is in the name of Deputy Ciarán Lynch. Amendments Nos. 60 and 61 are related and will be discussed together, by agreement.
I move amendment No. 60:
In page 59, line 45, to delete "a" and substitute "an executive".
I do not accept those particular amendments. I do not consider that it would be appropriate to confine to executive functions the power in section 70 of the Bill for the mayor to require the joint discharge or the transfer of functions among the Dublin local authorities.
I am, however, prepared to look at the exercise of the mayor's power possibly in the context of ministerial guidelines or directives, and would be prepared to consider a possible amendment in that regard on Report Stage, if this appears to be appropriate at that point.
I move amendment No. 62:
In page 62, subsection (1), between lines 9 and 10, to insert the following:
"(e) reviewing the performance by Dublin local authorities of their functions and, in particular, reviewing such performance as respects consistency with the objectives of the Authority,
(f) examining the extent of coordination among Dublin local authorities in the performance by them of their functions, and”.
The purpose of this amendment is to widen the ambit of the review to be conducted by the Minister and the mayor - I referred to this, yesterday - within two years of the establishment of the regional authority in respect of the four Dublin local authorities. The effect of the amendment is that the review shall have the additional purposes of reviewing the performance of the local authorities and their functions, especially as regards consistency with the objectives of the authority; and examining the extent of co-ordination among the four local authorities.
I believe that improving the inter-institutional co-ordination and the consistency of activity with the higher tiers is a very important objective of the Dublin mayoral legislation. I believe that the review must afford the Minister and the mayor appropriate latitude to address relevant matters and the proposed amendment will facilitate this. This is something the Dublin Chamber of Commerce was looking for, since it is seeking greater efficiency as well among the local authorities.
I move amendment No. 63:
In page 62, before section 74, to insert the following new section:
74.—Section 134 of the Act of 2001 is amended by the insertion of the following subsection:
"(2A) A corporate plan prepared by a Dublin local authority shall be consistent with a strategy statement prepared by the Mayor under section 6 of the Local Government (Mayor and Regional Authority of Dublin) Act 2010.”.”.
I move amendment No. 64:
In page 70, subsection (7), between lines 39 and 40, to insert the following:
"(b) adopt such measures as it considers appropriate to assist the Authority in the performance of its functions under paragraph (d) of subsection (1) of section 18,”.
I move amendment No. 65:
In page 70, subsection (7)(b), line 40, to delete “take such steps” and substitute “adopt such measures”.
Amendments Nos. 66 to 72, inclusive, and 74 to 76, inclusive, are related as are amendments Nos. 73, 77 and 78 to 82, inclusive. We shall therefore discuss amendments Nos. 66 to 82, inclusive, by agreement. I shall ask the Minister to move amendment No. 66 and give a brief comment on this group.
I move amendment No. 66:
In page 72, line 19, to delete "his" and substitute "his or her".
I want to give notice that I intend to introduce amendments to Part 6 of the Bill on Report Stage to insert two additional sections, providing for new provisions in the local government Acts for the changing of placenames, and the display of names on streets. This will provide for the resolution of the placename issue in Dingle and there will be a related amendment to the Official Languages Act 2003. These are outstanding issues involving a problem about which I gave a commitment concerning a resolution of the placenames issue in Dingle, which would restore the English language name of the town. I have stated that the opportunity would be taken in legislation to provide that Daingean Uí Chúis should be the official name of the town in the Irish language, with Dingle being the official name in the English language.
The general scheme of the mayoral legislation of February 2010 contained the necessary provisions, as many members will know. The Bill, as published, did not contain a number of sections which were still in the final drafting process at the time, including the placenames provision. At that time I stated that I would introduce the placenames provision by amendment on Committee Stage. I just wanted to signal that in advance.
That is on Report Stage.
That is correct.
Amendments Nos. 66 onwards seem to be all technical in nature.
As the Chairman said earlier, they involve minor technical drafting changes. The intention of those changes is to present a gender-neutral text, but I will not go into this any further.
I move amendment No. 67:
In page 72, line 27, to delete "he" and substitute "he or she".
I move amendment No. 68:
In page 72, line 32, to delete "his" and substitute "his or her".
I move amendment No. 69:
In page 72, line 36, to delete "he" and substitute "he or she".
I move amendment No. 70:
In page 73, line 19, to delete "his" and substitute "his or her".
I move amendment No. 71:
In page 73, line 39, to delete "his" and substitute "his or her".
I move amendment No. 72:
In page 73, line 40, to delete "his" and substitute "his or her".
I move amendment No. 73:
In page 74, to delete lines 32 to 39 and substitute the following:
"1. (1) Any of the following, that is to say—
(a) an employee,
(b) the parent or guardian of an employee who has not yet attained the age of 18 years, or
(c) a trade union of which the employee is a member,
may, but in the case of a trade union referred to in paragraph (c) only where the employee has given his or her consent, present a complaint to a rights commissioner that the employee’s employer has contravened subsection (1) of section 179B (inserted by section 78 of the Local Government (Mayor and Regional Authority of Dublin) Act 2010) in relation to the employee.”.
I move amendment No. 74:
In page 75, line 20, to delete "him" and substitute "him or her".
I move amendment No. 75:
In page 75, line 25, to delete "him" and substitute "him or her".
I move amendment No. 76:
In page 75, line 28, to delete "he" and substitute "he or she".
I move amendment No. 77:
In page 75, line 30, to delete "reasonable cause" and substitute "the existence of exceptional circumstances".
I move amendment No. 78:
In page 76, lines 10 and 11, to delete "6 weeks" and substitute "42 days".
I move amendment No. 79:
In page 77, to delete lines 14 to 25 and substitute the following:
"3. (1) Where a decision of a rights commissioner in relation to a complaint under this Schedule has not been carried out by the employer concerned in accordance with its terms, the time for bringing an appeal against the decision has expired and no such appeal has been brought—
(a) the employee concerned,
(b) the parent or guardian of the employee concerned (in the case of an employee who has not yet attained the age of 18 years), or
(c) a trade union of which the employee concerned is a member, with the consent of the employee,
may bring the complaint before the Labour Court and the Labour Court shall, without hearing the employer concerned or any evidence (other than in relation to the matters aforesaid), make a determination to the like effect as the decision.".
I move amendment No. 80:
In page 77, line 42, to delete "6 weeks" and substitute "28 days".
I move amendment No. 81:
In page 77, to delete lines 46 to 49 and substitute the following:
"(a) the employee concerned,
(b) the parent or guardian of the employee concerned (in the case of an employee who has not yet attained the age of 18 years), or
(c) a trade union of which the employee concerned is a member, with the consent of the employee,”.
I move amendment No. 82:
In page 78, line 24, to delete "of the order" and substitute "on which the compensation is paid".
I move amendment No. 83:
In page 78, before section 80, but in Part 6, to insert the following new section:
80.—Part 15 of the Act of 2001 shall apply in relation to the Authority as it applies in relation to a local authority subject to the following modifications and any other necessary modifications:
(a) references to a local authority shall be construed as references to the Authority;
(b) references to the Cathaoirleach of a local authority shall be construed as references to the Mayor;
(c) references to the Leas-Chathaoirleach of a local authority shall be construed as references to the Deputy Mayor;
(d) references to an employee of a local authority shall be construed as references to a member of staff (including the chief executive) of the Authority and references to a member of staff of a local authority to whom, for the time being, an arrangement under section 27(1) applies;
(e) references to the manager of a local authority shall be construed as references to the chief executive;
(f) references to the ethics registrar shall be construed as references to the meetings administrator.”.
The purpose of this amendment is to insert an additional section in the Bill which would apply the ethics framework that applies in local government to the new regional authority of Dublin, and the framework is set out in Part 15 of the Local Government Act 2001, and supplemented by two codes of conduct issued by the Minister for the Environment, Heritage and Local Government. There is one for councillors and one for employees. The framework requires both councillors and employees to maintain proper standards of integrity, conduct and concern for the public interest, complete an annual declaration of interests and refrain from partaking in, or influencing the decisions of a local authority in which they have an interest.
The ethics framework will apply also to the mayor, members of the authority and the staff of the authority. The reason this provision is being inserted by way of a Committee Stage amendment is that it was not possible to have the technical drafting completed in time for its inclusion in the Bill as initiated.
Has the Minister's evaluation of these matters taken account of the various tribunals of inquiry that we have had over the years?
One could not but be aware of the outcome. Given that these matters related in the main to planning, and I refer in particular to the Mahon tribunal, one would have to take cognisance of these matters.
I move amendment No. 84:
In page 78, before section 80, but in Part 6, to insert the following new section:
81. -Section 32 of the Local Government (Dublin) Act 1993 is amended by the insertion of the following subsection:
"(4A)(a) The Mayor of Dublin shall, from time to time, arrange meetings to consider and review matters to which subsection (4) relates.
(b) The Mayor of Dublin and the managers of the principal authorities shall attend the meetings arranged under paragraph (a).
(c) The Mayor of Dublin shall be the chairperson of each meeting arranged under paragraph (a).”.”.
I move amendment No. 85:
In page 80, subsection (2), between lines 12 and 13, to insert the following:
"(g) the reference in article 58(2) of those Regulations to “as a candidate or as a prospective candidate” shall be construed as a reference to “as a mayoral election agent, candidate or prospective candidate”;”.
This is a technical amendment.
I move amendment No. 87:
In page 81, lines 37 to 40, to delete subsection (2) and substitute the following:
"(2) The poll at a mayoral election (other than a mayoral election to which subsection (1) applies, a bye election or a fresh mayoral election held pursuant to section 111 or 177) shall be held on such day and for such period as may be fixed by the Minister by order under subsection (3).”.
I move amendment No. 89:
In page 82, lines 1 to 4, to delete subsection (4) and substitute the following:
"(4) The poll at a fresh mayoral election held pursuant to section 177 or a bye-election shall be held on such day and shall continue for such period, not being less than 12 hours between the hours of 7.00 a.m. and 10.30 p.m., as may be fixed by the Minister by order.".
I move amendment No. 91:
In page 84, subsection (5), lines 22 to 26, to delete paragraph (b).
I move amendment No. 92:
In page 89, subsection (4), lines 4 and 5, to delete "Minister for Finance" and substitute the following:
"Dublin City Manager, following consultation with the managers of the other Dublin local authorities".
Under the provisions of the Bill a non-party candidate can be nominated by way of 60 people assenting to the candidature or by way of a deposit being paid on behalf of the candidate. If a deposit is paid, it will be returned to the candidate if he or she is elected as mayor or if the total votes received by the candidate exceeds one quarter of the quota. In section 98(4) we deal with the matter and the disposal of a deposit that is forfeited. The amendment ensures the deposit will be disposed of in such a manner as directed by the Dublin city manager in consultation with the other Dublin local authorities. This is a necessary amendment as it is consistent with the provisions of the Bill which provide for the expenses of the returning officer to be paid by the Dublin local authorities. The Minister for Finance does not have a role in the funding of a mayoral election and therefore should not have a role under section 98(4).
What is the position on the return of expenses if the candidate achieves 25% or more of the quota? Is it similar to what happens in the case of elections to the Dáil?
Yes. One gets the money back.
In terms of the €8,750 that is given to each candidate who achieves 25% or more of the quota in elections to the Dáil, is that the fund to which the Minister refers?
The Deputy is correct.
Is there a refund for local elections?
No, but in this election one gets a refund. I should add that the candidates do not get a free postal leaflet in the election for mayor.
Amendments Nos. 93, 101 and 128 are related and will be discussed together.
I move amendment No. 93:
In page 95, subsection (2)(g), line 14, to delete “section 95” and substitute “section 94”.
These amendments simply correct cross-references in the Bill to ensure they are fully consistent.
Amendments Nos. 95 and 107 to 127, inclusive, are related and may be discussed together. I wish to draw attention to a typographical error on the amendment list. In the last line of page 17, amendment No. 108, the text should read "which the returning officer declares". The reprinted Bill will contain the correct text in the amendment.
I move amendment No. 95:
In page 112, before section 161, to insert the following new section:
161.—A person who makes any agreement or enters into any undertaking in relation to the withdrawal of a petition presented under Chapter 17 in consideration of any payment or the cesser of the office of Mayor or for any substantial reason not stated in the affidavit referred to in section 178(3) is guilty of an offence.”.
Amendment No. 95 proposes to insert a new section dealing with the corrupt withdrawal of a petition. It is linked to amendments Nos. 107 to 127, inclusive, which insert a chapter relating to petitions questioning a mayoral election. Section 178 in the new chapter provides for procedures for the withdrawal of a mayoral election petition. It provides that a petition may not be withdrawn without the leave of the court which must first be furnished with an affidavit giving the reasons for the withdrawal and a statement that no agreement has been entered into in consideration of any payment or the cesser of the office of mayor in respect of the withdrawal. The proposed new section 161 provides that entering into such an agreement in respect of the withdrawal of the petition shall be an offence. This section reflects existing requirements contained in other electoral codes.
Essentially, this group of amendments is about the withdrawal of petitions procedures.
Amendments Nos. 96 to 100, inclusive, are related and may be discussed together.
I move amendment No. 96:
In page 117, line 56, after "statement," to insert the following:
"signed by the mayoral election agent and the candidate concerned,".
Section 165 of the Bill inserts a new Part IX, comprising 21 sections, into the Electoral Act 1997 to provide for the limitation of expenditure at a mayoral election and for the disclosure of donations. These new sections will appear as sections 83 to 103, inclusive, of the 1997 Act. That Act currently legislates for election spending and donations requirements as they apply to Dáil, Seanad, European Parliament and presidential elections. The new sections inserted are based on existing provisions that apply to these elections, with the necessary modifications to ensure compatibility with the requirements in place for local elections.
I move amendment No. 97:
In page 118, to delete lines 14 to 39 and substitute the following:
"(2) A statement furnished pursuant to subsection (1) shall be accompanied by—
(a) a statutory declaration made by the mayoral election agent concerned, and
(b) a statutory declaration made by the candidate concerned,
that, to the best of his or her knowledge and belief, the statement is correct in every material respect and that he or she has taken all reasonable action in order to be satisfied as to the accuracy of the statement.
(3) Where the Standards in Public Office Commission requests additional or supplemental information in relation to a mayoral election donation statement, such information shall be provided by the mayoral election agent concerned and shall be in a form directed by the Commission, accompanied, if the Commission so requests, by—
(a) a statutory declaration made by the mayoral election agent concerned, and
(b) a statutory declaration made by the candidate concerned,
that, to the best of his or her knowledge and belief, the information is correct in every material respect and that he or she has taken all reasonable action in order to be satisfied as to the accuracy of the information.
(4) It shall be the duty of every person who is required to furnish a statement or make a declaration pursuant to this section to make such enquiries and maintain such records as are necessary for the purpose of furnishing the statement or making the declaration.".
I move amendment No. 98:
In page 121, to delete lines 32 to 39 and substitute the following:
"(4) The certificate furnished pursuant to subsection (2) or (3) shall be accompanied—
(a) by a statutory declaration made by the person by whom the certificate is furnished, and
(b) where the certificate is furnished by a mayoral election agent, by a statutory declaration made by the candidate,
that, to the best of his or her knowledge and belief, the certificate is correct in every material respect and that he or she has taken all reasonable action in order to be satisfied as to the accuracy of the certificate.".
I move amendment No. 99:
In page 128, to delete lines 33 to 59 and substitute the following:
"(2) Each statement of mayoral election expenses furnished pursuant to subsection (1) shall be in the form directed by the Standards in Public Office Commission and shall be accompanied—
(a) by a statutory declaration made by the mayoral election agent or person by whom the statement is furnished, and
(b) (other than where the statement is furnished pursuant to subsection (6) or by a person referred to in section 91(6)) by a statutory declaration made by the candidate,
that to the best of his or her knowledge and belief, the statement is correct in every material respect and that he or she has taken all reasonable action in order to be satisfied as to the accuracy of the statement.
(3) Where the Standards in Public Office Commission requests additional or supplemental information in relation to a statement of election expenses under this section, such information shall be provided by the mayoral election agent or person who furnished the statement and shall be in a form, directed by the Commission, accompanied, if the Commission so requests—
(a) by a statutory declaration made by the mayoral election agent or person by whom the statement is furnished, and
(b) (other than where the statement is furnished pursuant to subsection (6) or by a person referred to in section 91(6)) by a statutory declaration made by the candidate,
that to the best of his or her knowledge and belief, the information is correct in every material respect and that he or she has taken all reasonable action in order to be satisfied as to the accuracy of the information.".
I move amendment No. 100:
In page 129, to delete lines 10 to 16 and substitute the following:
"(5) It shall be the duty of every person who is required to furnish a statement of election expenses or make a declaration pursuant to this section, to make such enquiries and maintain such records as are necessary for the purpose of furnishing the statement or making the declaration.".
I move amendment No. 101:
In page 129, lines 20 and 21, to delete “section 112” and substitute “section 111”.
Amendments Nos. 102 to 104, inclusive, are related and may be discussed together.
I move amendment No. 102:
In page 130, line 26, to delete "declaration" and substitute "declarations".
These are technical amendments. They change the singular form of "declaration" to the plural "declarations".
I move amendment No. 103:
"In page 131, line 42, to delete "declaration" and substitute "declarations".
I move amendment No. 104:
In page 131, line 45, to delete "declaration" and substitute "declarations".
Amendments Nos. 105 and 106 are related and may be discussed together.
I move amendment No. 105:
In page 135, line 23, after "agent" to insert "or candidate".
I move amendment No. 106:
In page 135, between lines 45 and 46, to insert the following:
"(e) A person who, in purported compliance with subsection (2) or (3) of section 96, furnishes to the Standards in Public Office Commission a statutory declaration that is false or misleading in any material respect is guilty of an offence.”.
I move amendment No. 107:
In page 136, before section 166, to insert the following new section:
Petitions
166.—In this Chapter—
"costs" includes charges and expenses;
"electoral offence" means—
(a) an offence under Chapter 15, or
(b) an offence under Part IX (inserted by section 165) of the Electoral Act 1997;
"petition" means a petition presented under this Chapter.".
I move amendment No. 108:
In page 136, before section 166, to insert the following new section:
167.—(1) A mayoral election may, and may only, be questioned by a petition to the High Court.
(2) Subject to subsection (3), a petition shall not be presented to the High Court unless that court, on application made to it in that behalf by or on behalf of the person proposing to present the petition not later than 14 days after the day on which returning officer declares under section 133 the result of the poll, by order grants leave to the person to do so.
(3) Where a person applying for leave to present a petition to the High Court alleges bribery and specifically alleges a payment or other consideration to have been made or to have passed after the declaration by the returning officer under section 133 of the result of the poll, notwithstanding the fact that another petition relating to the same election may have been previously presented or tried, the application to the Court may be made not later than 14 days next after the day on which the said payment or consideration is alleged to have been made or to have passed.
(4) Where a petition alleges an irregularity or non-compliance with any provision of Part IX (inserted by section 165) of the Electoral Act 1997 whether before or after the declaration by the returning officer under section 133 of the result of the poll, notwithstanding the fact that another petition relating to the same election may have been previously presented or tried, leave of the High Court to present a petition under subsection (2) may be applied for not later than 14 days next after the laying of a copy of a statement of election expenses before each House of the Oireachtas in accordance with section 98 (inserted by section 165) of the Electoral Act 1997.
(5) An application for leave to present a petition may be made by any person who is registered or entitled to be registered as a local government elector in the Dublin Region Electoral Area.
(6) Without prejudice to subsection (5), where it appears to the Director of Public Prosecutions that a mayoral election may have been affected by the commission of an electoral offence, the Director may question the election pursuant to this Chapter.
(7) The High Court shall not grant leave to present a petition unless it is satisfied—
(a) that there is prima facie evidence of a matter referred to in section 171 in relation to which the petition questions the election concerned, and
(b) that the said matter is such that it is likely to have materially affected the result of the election.”.
I move amendment No. 109:
In page 136, before section 166, to insert the following new section:
168.—(1) A petition shall be presented by being lodged in the Central Office of the High Court not later than 3 days after the grant of leave by the High Court under section 167.
(2) Where a petition has been lodged with the court the petitioner shall, as soon as may be, give a copy of the petition to—
(a) any person to whose election the petition relates,
(b) the Minister,
(c) the returning officer,
(d) the chief executive, and
(e) except in the case of a petition presented by the Director of Public Prosecutions, the Director of Public Prosecutions.”.
I move amendment No. 110:
In page 136, before section 166, to insert the following new section:
169.—(1) Subject to subsections (2) and (4), a petition shall not be accepted for lodgement with the court unless the petitioner lodges with the petition security in the sum of €6,350 for costs which may become payable by the petitioner.
(2) Where the court is satisfied that a petitioner is unable to lodge the amount specified in subsection (1) or that to require a petitioner to lodge the said amount would cause the petitioner serious hardship, the court may require the petitioner to lodge such lesser amount as the court considers appropriate.
(3) The security required to be given by this section shall be given either by recognisances entered into by any number of sureties satisfactory to the court not exceeding 4 or by a deposit of money, or partly in one way and partly in the other.
(4) This section shall not apply to a petition presented by the Director of Public Prosecutions.".
I move amendment No. 111:
In page 136, before section 166, to insert the following new section:
170.—A petition shall be signed and dated by the petitioner and shall specify—
(a) the mayoral election to which it relates,
(b) the grounds on which it is based,
(c) the remedy it seeks, and
(d) the name and address of the petitioner and of the petitioner’s solicitor or agent, if any.”.
I move amendment No. 112:
In page 136, before section 166, to insert the following new section:
171.—(1) A mayoral election may be questioned on the grounds that the result of the election was likely to have been affected by:
(a) want of eligibility under section 82;
(b) the commission of an electoral offence;
(c) the obstruction of, interference with, or other hindrance to the conduct of the election;
(d) mistake or other irregularity; or
(e) failure by the returning officer to complete or otherwise to conduct the election in accordance with law.
(2) A mayoral election shall not be declared invalid by reason of non-compliance with Part IX (inserted by section 165) of the Electoral Act 1997, or any mistake in the use of forms provided for in that Part, if it appears to the court that a candidate or party, as the case may be, complied with the principles laid down in that Part taken as a whole and that such non-compliance or mistake did not materially affect the result of the election.
(3) Notwithstanding any other provision of this Chapter, a petition shall not be dismissed on account of an informality in its contents which does not materially affect its substance.".
I move amendment No. 113:
In page 136, before section 166, to insert the following new section:
172.—(1) A petition shall be tried by the High Court and references to the court in this Chapter shall be construed as references to the High Court.
(2) The following shall have effect in relation to the trial of a petition:
(a) in fixing the date for and conducting the trial, the court shall deal with the matter as soon as reasonably practicable;
(b) notwithstanding the death of any person to whose election the petition relates, the resignation of a person as Mayor or a person otherwise ceasing to be Mayor, the court shall have power to continue the trial if it considers it to be in the interests of justice to do so;
(c) the Director of Public Prosecutions may at any stage be represented at and take part in the trial as a party, whether on the Director’s own motion or at the request of the court;
(d) the returning officer for the Dublin Region Electoral Area shall, at the request of the court, attend the trial and give such assistance as shall be requested of such officer by the court, but without prejudice to the officer being a party to the proceedings or being called as a witness by any such party.”.
I move amendment No. 114:
In page 136, before section 166, to insert the following new section:
173.—(1) The court may, for the purposes of the trial of a petition questioning a mayoral election, if it thinks fit, order—
(a) that all the votes cast at the election shall be counted afresh, or
(b) that all the votes so cast and recorded on the ballot papers contained in a particular parcel shall be so counted, and where the court so orders, subsections (2) to (6) shall have effect.
(2) Votes to which an order under this section relates shall be counted afresh under the direction of the court and, subject to subsections (3) and (4) and to such modifications (if any) as the court considers necessary, Chapter 13 shall apply to such counting.
(3) Where votes are counted afresh pursuant to an order under this section, the court shall cause the following to be disregarded:
(a) preferences recorded on ballot papers which are invalid by virtue of section 128(1);
(b) preferences recorded on forged or counterfeited ballot papers; and
(c) preferences recorded for any person who, with respect to the mayoral election, is found by the court not to have been eligible for such election.
(4) The court shall have power to reverse any decision of the returning officer at the original count.
(5) The costs of giving effect to an order under this section shall be paid out of moneys provided by the Dublin local authorities.
(6) Each Dublin local authority shall, for the purposes of subsection (5), be liable for an amount that bears the same proportion to the aggregate of the costs referred to in that subsection as the number of persons recorded in the census report as residing in the local government area of that local authority bears to the number of persons so recorded residing in the Dublin Region.”.
I move amendment No. 115:
In page 136, before section 166, to insert the following new section:
174.—(1) At any stage of the trial of a petition the court may, if it so thinks proper, on its own motion or on the application of any party to the petition, state a case for the opinion of the Supreme Court on any question of law arising at the trial.
(2) Notwithstanding anything contained in this Chapter, where a case is stated under this section the court shall not determine the petition until the Supreme Court has given its decision and the court may adjourn the trial or any part thereof until such decision is given.
(3) Costs incurred in relation to a case stated under this section shall for all purposes be part of the costs incurred in relation to the petition.".
I move amendment No. 116:
In page 136, before section 166, to insert the following new section:
175.—(1) At the trial of a petition the court shall determine the matter at issue in the petition and, if it does not dismiss the petition, shall where appropriate include in its order determining the matter at issue either—
(a) a declaration of the correct result of the mayoral election, or
(b) if it considers that it is unable to determine the correct result of the election, a declaration that the election or a specified part thereof was void together with a statement of its reasons for making the declaration.
(2) The court shall, as soon as practicable, give a copy of the order determining the petition to each of the following:
(a) any person to whose election the order relates;
(b) the Minister;
(c) the chief executive;
(d) the returning officer; and
(e) the Director of Public Prosecutions.
(3) The court shall have power to make such amendments in the return of the person elected made to the chief executive by the returning officer as it considers necessary in consequence of its decision on a petition.".
I move amendment No. 117:
In page 136, before section 166, to insert the following new section:
176.—Any party to a petition may appeal on a question of law to the Supreme Court against a decision of the court on the petition and, subject to the foregoing, the decision of the court shall be final and not subject to appeal.".
I move amendment No. 118:
In page 136, before section 166, to insert the following new section:
177.—(1) Subject to subsection (2), where the court declares that the whole or any part of a mayoral election was void, a fresh mayoral election shall be held in accordance with this Part to fill the resulting vacancy within the period of 3 months beginning on the date of the court’s order.
(2) Notwithstanding subsection (1), it shall not be obligatory to hold a fresh mayoral election if a vacancy occurs in the office of Mayor pursuant to that subsection during the period commencing 12 months before the 1st day of May in any year in which an election referred to in section 26 of the Act of 2001 is required to be held.”.
I move amendment No. 119:
In page 136, before section 166, to insert the following new section:
178.—(1) A petition shall not be withdrawn without the leave of the court and in giving such leave the court shall be satisfied that the notice given by the petitioner pursuant to subsections (4) and (5) was reasonable.
(2) Where a petition is presented by more than one petitioner the court, before giving leave to withdraw a petition pursuant to subsection (1), shall be satisfied that all the petitioners agree to the withdrawal.
(3) Except in the case of a petition presented by the Director of Public Prosecutions, when applying for leave for the withdrawal of a petition, the petitioner shall submit to the court an affidavit stating—
(a) the reasons for the proposed withdrawal, and
(b) that, to the best of the petitioner’s knowledge and belief, neither an agreement nor an undertaking has been made or entered into in relation to the withdrawal of the petition in consideration of any payment or the cesser of the office of Mayor or for any substantial reason not stated in the affidavit.
(4) Notice of intention to apply for leave to withdraw a petition shall be given by the petitioner by the publication in at least 2 daily newspapers circulating in the Dublin Region Electoral Area of a notice to that effect and the notice shall also state the time and place at which the application will be made and that any person may apply to the court to be substituted for the petitioner.
(5) Except in the case of a petition presented by the Director of Public Prosecutions, a copy of the affidavit referred to in subsection (3) together with notice of the time and place at which the application will be made shall be given by the petitioner to the Director of Public Prosecutions who may be represented at, and if the Director thinks fit, oppose the application.
(6) Where the petition has been presented by more than one petitioner, the affidavit referred to in subsection (3) shall, unless the court otherwise directs, be made by all the petitioners.
(7) The withdrawal of a petition pursuant to this section shall not affect the liability of any person (or of the estate of such person) for the payment of costs previously incurred.".
I move amendment No. 120:
In page 136, before section 166, to insert the following new section:
179.—(1) On the hearing of an application for leave to withdraw a petition, any person who, under section 167, would be eligible to apply for leave to present a petition, may apply to the court to be substituted as a petitioner, and the court may, if it thinks fit, substitute that person accordingly.
(2) In case the court substitutes a petitioner under subsection (1) and is of the opinion that the application for leave to withdraw the petition was the result of any agreement or undertaking the making of which or the entering into which is an offence pursuant to section 161, the court may direct that the security for costs given by the original petitioner shall remain as security for the costs that may be incurred by the substituted petitioner and that, to the extent of the sum named in the security, the original petitioner and his or her sureties, if any, shall be liable to pay the costs of the substituted petitioner.
(3) Subject to subsection (2), a substituted petitioner shall, as nearly as may be, stand in the same position and be subject to the same liabilities as the original petitioner.
(4) In case the court substitutes a petitioner under subsection (1) and does not make a direction under subsection (2), or in case the court substitutes a petitioner under section 180, the security required by section 169 in the case of a new petition, and subject to the like conditions, shall be given by the substituted petitioner, and in case such security is not so given, no further proceedings shall be had on the petition and the petition shall abate, but the abatement shall not affect the liability of any person (or of the estate of such person) for the payment of costs previously incurred.”.
I move amendment No. 121:
In page 136, before section 166, to insert the following new section:
180.—(1) A petition shall be abated by the death of a sole petitioner or of the survivor of several petitioners.
(2) The abatement of a petition under subsection (1) shall not affect the liability of the petitioner or any other person (or the estate of the petitioner or the estate of any other person) for the payment of costs previously incurred.
(3) At any time within 14 days next after the abatement of a petition under subsection (1), any person may apply to the court to be substituted as a petitioner and the court may, if it thinks fit, substitute that person accordingly, and where the court makes an order under this section the petition shall be revived.”.
I move amendment No. 122:
In page 136, before section 166, to insert the following new section:
181.—(1) Where the order of the court determining the trial of a petition declares that a person was not duly elected as Mayor, or was not qualified for election as Mayor, or that the whole or part of a mayoral election was void, the person to whom the declaration relates shall cease to be Mayor on (but not before) the day next following the day on which a copy of the order of the court is given to the chief executive pursuant to section 175 and, subject to subsection (2), a vacancy shall exist accordingly.
(2) Where an order under subsection (1) declares that, in the place of a person declared by the order not to have been duly elected or not to have been eligible for election, a specified other person was ascertained to have been elected, that other person shall stand elected as Mayor on (but not before) the day next following the day on which a copy of the order is given to the chief executive pursuant to section 175.
(3) As soon as practicable after a copy of the order is given to the chief executive pursuant to section 175, the chief executive shall inform the members of the Authority of the terms of the order.”.
I move amendment No. 123:
In page 136, before section 166, to insert the following new section:
182.—No action shall be taken to fill a mayoral vacancy caused by the death or cesser as Mayor of a person who has died or resigned or otherwise ceased to be Mayor while the trial of a petition relating to that person is pending or proceeding.".
I move amendment No. 124:
In page 136, before section 166, to insert the following new section:
183.—(1) The court shall be entitled of its own volition, at any time during the trial of a petition, to direct that a particular person shall be brought before the court and shall give evidence at the trial, and where the court so directs the cost of bringing the person before the court (including any moneys payable to the person as witness's expenses) shall be regarded as part of the costs of the petition.
(2) Subject to subsection (3), a person who is called as a witness at the trial of a petition shall not be excused from answering any question relating to an electoral offence on the grounds that the answer to the question may incriminate or tend to incriminate that person or on grounds of privilege, provided that—
(a) a witness who satisfies the court that he or she has answered truly all the questions which the witness is required by the court to answer shall be entitled to receive from the court a certificate stating that the witness has so answered, and
(b) an answer by a witness who has received a certificate under paragraph (a) to a question put at the trial of a petition shall not, except in the case of any criminal proceeding for perjury in respect of the evidence, be in any proceeding, civil or criminal, admissible in evidence against the witness.
(3) Nothing in this section shall be construed as affecting the right of any party to a petition to call any person as a witness.".
I move amendment No. 125:
In page 136, before section 166, to insert the following new section:
184.—(1) All costs, other than the costs of counting votes afresh under section 173, of and incidental to a petition shall be in the discretion of the court which shall have power to order such costs or any part of such costs of any party to the petition to be paid by any other such party, and, where the costs or any part of the costs of any such party are so ordered to be paid by the petitioner, the court shall, where necessary, make provision for the payment of those costs, to the extent of the amount named in the security given by the petitioner, out of or by means of such security.
(2) Without prejudice to subsection (1), where on the trial of a petition, it appears to the court that any person or persons committed an electoral offence in relation to the relevant mayoral election, the court may, after giving the person or persons an opportunity of being heard to show cause why the order should not be made, if it so thinks fit, order the whole or part of the costs of the petition other than the costs of counting votes afresh under section 173, to be paid by that person, or any of those persons.”.
I move amendment No. 126:
In page 136, before section 166, to insert the following new section:
185.—(1) Subject to subsection (4), the costs and other expenses incurred on behalf of a returning officer at the trial of a petition shall be paid out of moneys provided by the Dublin local authorities.
(2) Costs awarded to the returning officer at the trial of a petition shall be a simple contract debt due to the Dublin City Manager and such debt, in default of being discharged, may be recovered by the Dublin City Manager in any court of competent jurisdiction.
(3) Subject to subsections (4) and (5), costs awarded against the returning officer at the trial of a petition shall be paid out of moneys provided by the Dublin local authorities.
(4) Where the court is satisfied that the returning officer has been grossly negligent in the discharge of the duties of the office, the court may order that the officer shall be personally liable for any costs awarded against the officer by the court.
(5) Where an order is made under subsection (4) any costs awarded against the returning officer concerned, which are paid out of moneys provided by the Dublin local authorities shall be a simple contract debt due to the Dublin City Manager by the officer, and may be recovered by the Dublin City Manager in any court of competent jurisdiction.
(6) Each Dublin local authority shall, for the purposes of subsections (1) and (3), be liable to pay an amount that bears the same proportion to the aggregate of the costs and other expenses referred to in those subsections as the number of persons recorded in the census report as residing in the local government area of that local authority bears to the number of persons so recorded residing in the Dublin Region.
(7) The Dublin City Manager shall pay any costs recovered pursuant to subsection (2) or (5) to the Dublin local authorities.
(8) For the purpose of subsection (7), the Dublin City Manager shall pay to each of the Dublin local authorities an amount that bears the same proportion to the aggregate of the costs recovered pursuant to subsection (2) or (5) as the number of persons recorded in the census report as residing in the local government area of that local authority bears to the number of persons so recorded residing in the Dublin Region.”.
I move amendment No. 127:
In page 136, before section 166, to insert the following new section:
186.—A copy of an order, petition or other document that is required to be served on or given to a person under this Chapter, shall be addressed to the person concerned by name, and may be so served on or given to the person in one of the following ways:
(a) by delivering it to the person;
(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address; or
(c) by sending it by post in a prepaid registered letter addressed to the person at the address at which the person ordinarily resides, or in a case in which an address for service has been furnished, at that address.”.
I move amendment No. 128:
In page 137, line 45, to delete "section 86” and substitute “section 85”.
I move amendment No. 129:
In page 138, lines 1 and 2, to delete paragraph (i) and substitute the following:
"(i) in section 28—
(i) in subsection (1), by the substitution of ", local elections and mayoral elections" for "and local elections", and
(ii) by the insertion of the following subsection after subsection (8):
"(8A) On the commencement of section 167 of the Act of 2010, the scheme then in force under this section shall apply for the purposes of a mayoral election until such time as the next such scheme comes into operation.”.”.
This is a fairly minor technical amendment. It will achieve two things. It will ensure that in future, a polling scheme adopted by a local authority will apply for the purposes of the mayoral election. The second purpose of the amendment is to provide for transitional arrangements whereby a polling scheme that is currently in force will apply at a mayoral election until such time as a new scheme comes into force under section 28 of the 1992 Act.
I wish to signal my intention to bring forward a further amendment on Report Stage which will correct a typographical error in section 167.
Amendments Nos. 130 to 133, inclusive, are related and may be discussed together.
I move amendment No. 130:
In page 140, paragraph (b), lines 12 and 13, to delete “ “52, 86, 87, 90, 91, 93 or 97” “ and substitute “ “52, 83, 84, 85, 86, 87, 90, 91, 93 or 97” “.
These four amendments are being made to provide for necessary minor and consequential amendments arising as a result of section 165.
I move amendment No. 131:
In page 140, paragraph (c)(iii)(I), line 20, to delete “ “56, 85 or 96” “ and substitute “ “56, 84, 85 or 96” “.
I move amendment No. 132:
In page 141, paragraph (k)(ii), line 29, to delete “subsection (2)(a)(vi)” and substitute the following:
"paragraph (f) of the definition of ‘donation’ in subsection (1)”.
I move amendment No. 133:
In page 142, paragraph (m)(ii), lines 2 and 3, to delete all words from and including “subparagraphs” in line 2 down to and including “83(2)(c)” in line 3 and substitute “paragraphs (b) to (e) of section 83(2)”.
I move amendment No. 134:
In page 142, before section 172, to insert the following new section:
172.----The Electoral (Amendment) Act 2004 is amended in subsection (1) of section 35 by the substitution of ", Article 55 of the Regulations of 1995 or section 119 of the Local Government (Mayor and Regional Authority of Dublin) Act 2010.” for “or Article 55 of the Regulations of 1995.”.
This amendment provides for a consequential amendment to the Electoral (Amendment) Act 2004. Section 35 of that Act provides for the unlawful possession of a polling information card and makes it an offence for a person to interfere with such a card.
I move amendment No. 136:
In page 147, to delete lines 16 to 44, and substitute the following:
"
|
DOYLE -- LIBERAL SOCIALISTS(MARY DOYLE, of 10 High Street,Knockmore, Nurse.) |
Emblem |
Photograph |
|
LYNCH -- URBAN PARTY(JANE ELLEN LYNCH, of 12 Main Street,Ardstown, Shopkeeper.) |
Emblem |
Photograph |
|
MURPHY(PATRICK MURPHY, of 12 Main Street,Ballyduff, Carpenter.) |
Photograph |
|
|
Ó BRIAIN -- CUMANN NASAORÁNACH(SÉAMUS Ó BRIAIN, as 10 An tSráid Ard,Carn Mór, Oide Scoile.) |
Emblem |
Photograph |
|
O’BRIEN -- NON-PARTY(EAMON O’BRIEN, of 22 Wellclose Place,Knockbeg, Barrister.) |
||
|
O’BRIEN -- THE INDEPENDENTPARTY(ORLA O’BRIEN, of 103 Eaton Brae,Cahermore, Solicitor.) |
Emblem |
Photograph |
|
O’CONNOR -- NATIONAL LEAGUE(CAROLINE O’CONNOR, of 7 GreenStreet, Carnmore, Engineer.) |
Emblem |
Photograph |
|
THOMPSON -- RURAL PARTY(WILLIAM H. THOMPSON, of Dereen,Ballyglass, Farmer.) |
Emblem |
Photograph |
'.
This amendment is better visualised than explained. It is a resequencing and restructuring of the ballot sheet. The proposal is to align the party emblems, then the photographs and then the voting numbers. The Minister might recall a campaign organised by the National Adult Literacy Agency that resulted in candidates' photographs being included in ballot sheets. This was to assist people with moderate or perhaps low literacy levels to participate in the electoral process. It has been a very successful measure. The Minister might also recall that an OECD report published last week showed that literacy levels in this country are still lower than is desirable. I am suggesting, through this amendment, that we present the ballot sheet in a more user-friendly fashion to everyone regardless of their literacy levels.
Before I respond, I would like to give notice that I intend to consider introducing an amendment to Schedule 1 on Report Stage to clarify further provisions relating to the quorum at meetings.
I was interested when I first saw Deputy Lynch's amendment last week. I was also interested in the amendment he withdrew, which dealt with the stamping of the ballot paper, because I have had direct experience of that in very close counts. I am not sure what the difficulty with the ballot paper as currently presented is, because we have not received any complaints about its layout. People have become used to the layout that allows them to see the party affiliation of a candidate immediately through the emblem, along with a photograph of the candidate. We have been told in the past that the background must be neutral and so on, but-----
It is not always enforced, but it should be.
Exactly. However, what we have is a layout in which candidates are identifiable, as the Deputy has pointed out, by those with literacy problems through photographs or emblems. It is all there in the current format, and I am not sure why we need to change it to the format suggested by the Deputy. Genuinely, we have received no complaints about the current layout.
The reasoning behind the suggestion is that we read from left to right.
That is correct. I understand what the Deputy is saying, but as one casts an eye across the paper one will still get all the information.
Yes, but we read from left to right. That is the simple explanation for it.
The Deputy wants the photograph to be beside the emblem.
After reading across the ballot sheet, the last thing one does is fill it in. In the current layout, one fills in the sheet first and then reads across.
The photograph is on the left.
I understand that.
What about Report Stage?
It would mean changing the format for one election even though we have become used to the current format for all other elections. It seems to be working effectively. If I recall correctly, there was another amendment about people in front of polling stations and so on, although we may not have discussed it. Was that one withdrawn? Yes. I am glad it was withdrawn. Therefore, I cannot accept the amendment.
I ask the Minister to consider it. I suggest that his Department make contact with the National Adult Literacy Agency, which was the instigator of the campaign to put candidates' photographs on ballot sheets in the first place.
I will do that.
I thank the Minister and his officials and the members of the committee for their consideration. Bill reported with amendments.
