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Dáil Éireann díospóireacht -
Wednesday, 15 Nov 1922

Vol. 1 No. 28

DISQUALIFICATIONS. - CLAUSE 7.

We are already bound by the Constitution to carry on the elections in accordance with the principles of proportional representation. The only extra provision in this clause of the resolution is that the system of proportional representation to be used shall be that operated by way of the single transferable vote, that is, we shall adhere to the system of proportional representation under which this Dáil has been elected—the system with which the people of this country have become familiar within the past few years, and which they have learned to use. There are other systems of proportional representation, but whether they have any advantages over the system of the single transferable vote is a matter about which there may be a great deal of dispute. The only systems that I have read anything about are systems by which electors can vote for a list, and the idea of the list, as far as I can understand it, seems to be to strengthen the bonds of Party discipline. In any case, I think it may be said there are no substantial advantages to be found in the other systems of proportional representation that are not to be found in the system to which we have become accustomed. We think it is desirable that a system which is, on the whole, a very satisfactory and a very fair system, should be adhered to, and that the people of this country should not be confused by having a new system imposed on them when they have just begun to understand the present one. If, after a number of years, or, in view of the peculiar circumstances —the peculiar system of electing the Seanad—it was thought necessary to modify the present system or to adopt a new system, then it could be done later, but we feel that, for the present, and for the first elections that will take place for the Parliament of Saorstát Eireann, it is much more preferable to adhere to the system that has been in use.

I just raise this question without pressing it too much. I would like to understand from the Minister whether he has considered the wisdom or otherwise of allowing the single transferable vote system to be applicable even when there are two candidates to be elected. There is nothing inherently undesirable in it. As a matter of fact, even for the election of one person it is considered by some to be the right method—that is to say, to use a single transferable vote—but certainly for the election of two there is a good deal to be said for applying the same method. If you had an electorate of 50,000 voters recording their votes for two candidates, 25,001 might elect both, and the other 24,999 are without representation. I think a good case could be made for one of the two almost representing a majority—that is to say, if the minority is big enough, as would be requisite under the single transferable vote, one of the two could be a representative of that almost half. I would just request the Minister to say whether he has considered this view of the case with regard to constituencies where only two are to be elected.

I must confess that I have not given any consideration to that point, and I will undertake, before the Bill comes before the Dáil, to give it consideration.

While the Minister is actually doing that might I urge him to consider the point that Deputy Johnson has referred to already— that is, to make it applicable where there is even one candidate. Some of us have gone into this with some care, and you will find when you work it arithmetically that you may get five candidates and only one to be elected. Unless you use the single transferable vote it might very easily happen that the person elected might be the representative of the minority, and not the representative of the majority will of the people. I think it would be a good thing to lay down that principle in all elections, whether there be one person or more than one person, that the election should be held on the principle of Proportional Representation.

It is just suggested to me that there is a further advantage, that the same method of voting is continuous, and that we will not have the rather anomalous state of things that in a General Election you would have people voting 1, 2, and 3, and that in a bye-election they would be voting with a cross. That would be liable to confuse the minds of the electors.

Motion made and question put: "That Clause 7 stand part of the Resolution."

Agreed.

It will be necessary for the Dáil to go out of Committee and make a report that the resolution has been considered and an amendment inserted in Article 6. It will be necessary, therefore, to move that the resolution be now passed.

I move that the resolution be now passed.

I second that.

Motion put and agreed to.

Is it proposed to adopt the same procedure with regard to the next motion?

I think that it would be preferable in the case of the next motion, instead of moving that the motion passed, that it passed for the first and second time, and that the Dáil should go into Committee to consider the clauses.

I second that.

Before I come to the schedule I would just point out that this resolution deals with both Houses of the Oireachtas. There is nothing here as to the system by which the provisions set out would be enforced, but we think that whatever is decided by this Dáil to be a disqualification for membership of either House of the Oireachtas should be observed in the election of the portion of the Senate which the Dáil will be entitled to elect very shortly. If, after these resolutions have been passed by the Dáil, it is found that some person has been nominated who is disqualified by the resolutions, it might be necessary that it should be moved that the name of that person should be removed from the list of candidates, or it might be thought desirable to allow the election to go on and to allow that person to sit temporarily in the Senate until the Electoral Bill might have been passed and when a competent Tribunal would deal with the matter. I think, therefore, that if these resolutions are passed it will be desirable that members of the Dáil should not nominate any person for the Senate who was disqualified by the terms of these resolutions, and if a Deputy persists in nominating a disqualified person then a resolution of the Dáil should be proposed before the Poll is taken removing the name of that person from the list of candidates if the case is a clear one. I can only take the sub-clauses one by one. Sub-clause A reads:—"A person who is undergoing a sentence of imprisonment with hard labour for any period exceeding six months, or of penal servitude for any term imposed by a Court of competent jurisdiction in Saorstát Eireann." We do not think it is desirable that a person who has committed an offence against the laws of the State, and who is actually at the time of the Election serving a sentence because of that offence, should be entitled to be elected a Member of either the Dáil or of the Senate. If the offence were a very trivial one, perhaps an offence of an accidental nature, the objection to such a person being elected would not hold. Consequently we have fixed six months with hard labour or a term of penal servitude as sentences which would indicate that the offence committed was one of some seriousness. We think it is not good from the public point of view that persons criminally convicted should not be under any disqualification for membership of the Parliament of the Nation. We do not think that this particular proposal is so stringent as to be open to any serious objection.

I would like to ask the Minister if he has given any consideration to the fact that this might be used to disqualify a person who had committed a particular crime connected with public affairs, or labour affairs. I would draw his attention to the fact that in the past a provision of this kind has been so used. There were, I think, several cases arising out of the Land War some thirty or forty years ago. In more recent times we had other examples. I have in mind the case of Mr. James Larkin, who in 1910 was convicted at Cork and sentenced to twelve months' imprisonment, with hard labour, for a purely technical offence— for what was universally admitted to be a purely technical offence. The offence was that of receiving 1s. 3d. from a worker for the purpose of enrolling him as a member of a certain Labour organisation and failing to so enrol him. He was sentenced to twelve months with hard labour, and two years following that he was disqualified from serving upon a local body to which he was elected by a very large majority. This sub-clause states, of course, "While serving a term of imprisonment," but it could equally apply that a member of this Dáil might be so convicted in the future. We are not so optimistic as to expect that we will not see class bias on the Bench in the future as in the past, and a member of this Dáil could be so disqualified. I would ask the Minister to give serious consideration to that and make some stipulation regarding the nature of the offence rather than the actual term of imprisonment. He might have some such qualification as the commission of a felony, or a description of that sort. That would narrow it down and prevent a state of affairs such as I have indicated occurring.

Before the Minister deals with the question put by Deputy O'Brien another matter occurs to me that is worthy of some consideration. The disqualifications are imprisonment with hard labour for a period exceeding six months or penal servitude. Now in many cases it frequently happens a sentence of imprisonment for very much longer than six months without hard labour is imposed upon people who, but for their physical disability or age, or some consideration of that kind, would be given hard labour; instead of getting six months with hard labour they are given a year's or two years', imprisonment, but without hard labour. The offence in that case is just as great as the disqualifying offence which gets six months with hard labour, and the remission of the hard labour is merely due to some physical reason affecting the offender, and not to the crime. I venture to suggest to the Minister that if he were to put the words "with hard labour" after the words "six months" it would meet the difficulty that is in my mind.

The difficulty which occurred in the case of Mr. James Larkin would not occur under the provision proposed by this resolution. The person is only disqualified if actually serving the sentence at the time. I am very much inclined to agree with Deputy Fitzgibbon that there are many cases in which people are imprisoned without hard labour because the Court thought their health or age——

Or sex made it undesirable that hard labour should be given. The fact that hard labour was not given did not mean that the offence was anything the less serious than if hard labour had been given. With regard to the point raised by Deputy O'Brien, I think there cannot be a distinction made as to the nature of the crime. If any person offends against the laws of the country in such a way as to merit a fairly severe sentence, then that breach of the law should be regarded as a sufficient disqualification from membership of the legislature.

Suppose they get the sentence and do not merit it.

That is one of the things you cannot provide against. The idea that any person would get a sentence without meriting it is rather an argument in favour of a possible reform of the system of administering justice than of modifying this Clause. Of course there is a difficulty in connection with this whole question of hard labour. It may be that when we come to alter the laws in relation to the judiciary and a variety of other matters, there may be some different classification of punishment rather than imprisonment with or without hard labour, and penal servitude. We may even know before the electoral law is enacted what is intended in regard to that, and it may be possible to modify this provision in some way. For the moment I would be inclined to ask the Dáil to let it stand as indicating the opinion of the Dáil that a person sentenced to a term of imprisonment, which indicates an offence of some magnitude, not merely some accidental or negligent breach of the law but something that was wilfully done—some definite crime —should be ineligible for election as a member of either House of the Legislature.

I do not press my amendment, but I would ask the Minister, when he comes to consider this again, to consider it not so much from the point of view of punishing the guilty member as from the point of view of disfranchising the unfortunate constituency. The constituency may be deprived of a representative for two years—sentences of two years without hard labour are not uncommonly passed, and during the whole of that time the constituency would be unrepresented.

Question "that Sub-clause (a) stand part of the Bill" put and agreed to.

I beg to move Sub-clause (b)—"An imbecile and any person of unsound mind." I think this is a Clause about which there will be no dispute, and I formally move it.

Question put and agreed to.

I beg to move Sub-clause (c)—"An undischarged bankrupt under an adjudication by a Court of competent jurisdiction in Saorstát Eireann." We do not think it desirable, in the interest of public morality, that an undischarged bankrupt should hold a public representative position, and for that reason we propose this clause. I think it will appeal to all members that it would be undesirable to have a number of undischarged bankrupts sitting here as members of the Dáil. It certainly would not add to the prestige of the Assembly.

May I ask if a man who became a bankrupt seven or eight or ten years ago, or even one year ago, prior to the jurisdiction of this Assembly, would be eligible to sit in this Parliament?

If undischarged, certainly not.

A rogue is a rogue any time.

A rogue does not necessarily be seen through at all times.

Question put and agreed to.

I beg to move Sub-clause (d)—"A member of the defence force of Saorstát Eireann on full pay." This is a matter which was debated in this Dáil some time ago. It was debated when the Constitution was under consideration. We recognise that it is not desirable that officers of the Army on full pay should be members of the Dáil, but in the circumstances which had existed heretofore it was impossible to exclude, and it was undesirable to exclude, them. We were then at a time when it was through the efforts of members of the Army that made it possible for this Dáil to exercise authority. It was undesirable that they should be asked to leave the Army in which they had served, and in which their services were needed. It was undesirable that they should be asked to leave the Dáil to which they had been elected while they were members of the Army. At the same time we recognise that in any sort of normal times it would be undesirable that members on full pay, active service members of the Army Forces of the Nation, should sit in the Legislature, and for that reason we propose to insert this provision in the forthcoming Electoral Law which will, so far as future Dáils and future Seanads are concerned, disqualify any officer or soldier from sitting in the Dáil while on the active list of the Army.

Would that include the Minister for Defence also?

Probably the Minister for Defence would not be on full pay in the Army.

Question, "that Sub-clause (d) stand part of the Bill," put and agreed to.

I beg to move Sub-clause (e) "a member of any police force in Saorstát Eireann on full pay."

I do not think it is necessary at any length to recommend this Clause. It will be apparent to Deputies that everything that we could say, and a lot of additional things for the exclusion of members of the Defence Force would apply equally to members of the Police Force.

Question, "that Sub-clause(e) stand part of the Bill,” put and agreed to.

I beg to move Sub-clause (f)“a person either temporarily or permanently in the Civil Service of Saorstát Eireann unless he be by the terms of his employment expressly permitted to be a member of either House of the Oireachtas.”

We think this Clause is necessary. It would certainly be impossible to have a person holding office in the Civil Service of Saorstát Eireann acting as a member of the Legislature, and probably taking a leading part in defeating or thwarting proposals of the member of the Ministry or Executive who would be responsible for the Department in which he was employed. It would be very undesirable that a member of the Civil Service should be dismissed, not for any misconduct in his office, but for his action in the Dáil, and for the difficult position that might be created by his action in the Dáil, and we think it is not only desirable but essential for the smooth working of the Department that members of the Civil Service should be disqualified from becoming members of the Dáil or the Seanad.

I think this is not a desirable Clause to be passed, and I think that the purpose of the Minister could be obtained if instead of disqualifying all except those who are especially permitted he should make it a condition of service for those that are considered to be disqualified. It was stated in the Dáil some months ago that postal employees, for instance, were Civil Servants and had to suffer disabilities. I do not think it is a desirable thing at all to say that a man, because he is employed by the State in a service of that kind, should be disqualified from becoming a member of the Dáil. It may be said that teachers, for instance, are Civil Servants. In some senses it might be argued that they are, but it is not desirable that they should be disqualified. If the railways were nationalised it might then be said that the railway servants were Civil Servants, and that therefore they should be disqualified, and that the time that they spent in the service of their constituents in the Oireachtas was not spent in the service of the State. But it is not a good thing to expressly prevent them from becoming members unless by special permission. Rather I think it should be the other way about. If it is considered by the Dáil that a certain class of Civil Servants ought not to be allowed to be members, and that you make that a condition of service, I do not think it is right to make that general prohibition with express exceptions. I think this is a reactionary proposal and ought not to be agreed to, and I therefore beg to move its deletion.

There would be two ways of doing this thing. A member of any branch of the service, excepting someone who might be excluded from this provision, might be informed that if he became a candidate and was elected to the Oireachtas his service would cease. I do not think that desirable. If the law gives him the right to become a member there might be trouble in many circumstances and difficulty in enforcing that rule. If for instance a representative of the Post Office employees had been elected a member of the Dáil, the Executive might find itself up against a crisis, if it had enforced the Service rule, which requires that such a man should be retired upon his election to the Dáil. It is much more desirable that he should be required to leave the Service, and if he were elected it would be up to the Department to dispense with him. I think it is absolutely essential as a general rule that Civil Servants should not be members of the Dáil or the Oireachtas. There would be a temptation both to the man and perhaps to the Head of the Department, if he were in the Dáil and were obstreperous to get rid of his opposition by say promotion within the Service. That would not be the sort of corruption which does not so readily happen, but it is clearly corruption. An insidious form of corruption would be invited by having a member of the Civil Service a member of the Dáil. A man without being obviously and indisputably corrupt would be able to use his position in the House for his own advancement in the Service. He would be able to use knowledge he would gain in his department to attack those who were his departmental superiors, and would still be his superiors, after he had left the Dáil. I think, in the interests of clean administration and in the interests of the efficiency of the department, it is undoubtedly necessary to see that no members of the Civil Service—unless some people specially named, who can be members without disadvantage—that no members of the Civil Service shall be in the Dáil or Senate, and the way is not to put it up to the Department to dismiss the man but to put it up to the man to decide whether he is going to serve the State as a Civil Servant or as a legislator. If railway men and teachers are later on to be made Civil Servants, it can then be decided whether they would be expressly permitted to be members of the Oireachtas or not. That matter would not be affected one way or the other by the adoption of the provision outlined in this resolution.

It seems to me that we need to define what is a Civil Servant before we accept this Clause as it stands. If it is true that postal employees are Civil Servants, it would be equally true that railway men are Civil Servants, and it has been maintained successfully in another place that teachers are Civil Servants, and to meet the case put forward by the Minister, all that is required is that the particular kind of Civil Servant shall be defined, and condition of his employment shall be that he is not eligible to become a member of the Oireachtas. That has already been done with the Police Force, and it seems to be that this method of lumping all servants of the State, and saying that none of those shall be allowed to become members of the Oireachtas is bad legislation, and ought not to be passed. We have a suggestion in the Constitution for a possible development of vocational councils. Vocational councils might well be councils of an organisation of an industrial function, which is somewhat under the direction of the State. You may then say all those are Civil Servants, because they are serving the community. Thereby they would be deprived of the right to be represented in the Oireachtas. And until you have shown definitely what you mean by Civil Service, I press my amendment for the deletion of this Clause.

I need only say that it is quite clear and undoubted that teachers are not members of the Civil Service. If any doubt were to arise, I do not know that there are any doubts as to any class at the moment, but if any doubt were to arise that doubt can be decided. But you cannot provide for every question that will arise in the future. Questions will arise that will have to be decided when they do arise.

Amendment put and negatived.

Division.

I think the Deputy is late on this particular point.

Motion put that Sub-section (f), Clause 1, stands part of the resolution.

Sub-section (g) is rather a formal one. It reads: “A person who is by the law for the time being in force in Saorstát Eireann in relation to corrupt practices and other offences at elections incapable of being a member of the Oireachtas by reason of his having been found guilty by a Court of competent jurisdiction in Saorstát Eireann of some such practice or offence.” This Clause is added merely to complete the roll, and it simply provides that a person who is by law disqualified is included in this list of people who are disqualified.

Motion made and question put: "That Sub-section (g) stands part of the Resolution.”

Agreed to.

It will be necessary to move the whole resolution for adoption and report.

I move that the resolution be adopted.

I second it.

The motion was agreed to.

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