This debate is taking place because, on behalf of the Opposition, I persisted yesterday, within the rules of order, in seeking to establish, by points of order, that the matter we wished to raise is one of urgent public importance, involving as it does the question of whether the forthcoming by-election in Dublin West can be held in circumstances that will offer a prospect of a result actually reflecting the wishes of the people. The Taoiseach's statement this morning, which I welcome, vindicates the decision he made yesterday to endeavour, within the rules of order, to find means by which this House could properly discuss the matter.
I have no wish to spend time this morning in restating yesterday's arguments. I will content myself by saying that an application of the rules of order that would have prevented us from securing from the Taoiseach a statement of his intentions on this matter, in advance of the time when the writ for this by-election would normally have been moved, would have been damaging to democracy. I believe that, given the decision to transfer questions on this matter from the Taoiseach to the Minister for Justice, which had the effect of moving them down the Order Paper to a position where they could not be taken as oral questions with supplementaries until many weeks had passed, because of this the matter became one of urgent public importance, appropriate for a Private Notice Question. Secondly, I believe that it would not merely have been within the rules of order, but in accordance with precedents set by the present Ceann Comhairle as well as his predecessors, to have allowed the matter to be raised on the Order of Business.
Research by one of my colleagues in the brief period of our discussions here last night has revealed at least 15 cases where the present Ceann Comhairle allowed matters to be raised with me as Taoiseach, or Deputy O'Leary as Tánaiste, in most instances raised by the present Taoiseach, between July and December last — matters which were not on the Order Paper and which, in many cases, related to precisely the kind of issue we were seeking to raise on the Order of Business yesterday, namely, queries as to what action the Government intended to take on matters not then on the Order Paper. In scarcely any case did the present Ceann Comhairle intervene with any reference to this procedure being out of order, and in none of these cases did he proceed with this objection, but permitted the exchanges to continue until the matter in question had been fully probed. In one instance, indeed, he did restrain the questioner — the present Minister for Health and Social Welfare — from continuing, but only, in his own words, so as to give me the chance to reply to him.
The simple fact of the matter is that this interpretation of the rules of order was not enforced when we were in government because we were willing to answer queries put to us on the Order of Business and did not sit mute, seeking to avoid our responsibilities by hoping that the Chair would protect our silence as has occurred on a number of occasions since this Dáil resumed.
I shall be submitting to the Ceann Comhairle these cases, which I shall also make available to the Press, and shall be asking the Ceann Comhairle to review his ruling in the light of his own practice during the second half of last year which, as can also be demonstrated, was in line with past practice as long as the memory of Members of this House takes us back.
Turning to the issue in this debate, it concerns the matter of illegal voting, designed to falsify the results of an election and to secure the return, by a constituency, of a Deputy of a party whom the electorate of that constituency wish to reject, and ultimately to give the country a Government other than that which the people of the country wish to choose. This has rightly been seen as a serious crime and one deserving of a gaol sentence. It is a practice which has never completely disappeared in this country, and its continuance has necessitated, on the part of my party and the Labour Party, a continuing massive effort at elections to check the register and to challenge suspect voters at the polls.
It is, however, fair to say that the evidence has been of a decline in this practice during the seventies. In my own constituency it had been a problem, particularly at one polling station, prior to 1969, but between that year and 1977 there was little or no evidence of attempts by people to vote illegally — save in the local elections of 1974, when several cases were detected and reported to the police, not involving any of the major political parties.
In the June election of last year, however, it came to our attention in my constituency, and I believe in others throughout the country, that illegal voting was being attempted again, and successfully, on a significant scale. This was evident, both from a number of cases where attempted personation was detected and those challenged fled, and also from the pattern of results at certain tables, which showed distinct departures from normal voting patterns, due account being taken of the general swing in voting which was occurring.
This matter was serious enough for both my organisation and my constituency formally to notify the City Sheriff of the apparent recrudescence of this practice and to ask him to instruct his staff to be especially vigilant in the February elections and for us in our party to have printed, at our own expense, notices to hang outside polling stations, warning against illegal voting — something, indeed, which the Sheriff and the County Registrar might themselves usefully do. Despite this, at several polling stations in my constituency personation occurred, with voters arriving only to find that their votes had already been taken by someone else — as, I myself observed in Rathgar Avenue polling station. I shall not speculate as to why personation should have become more rife in these two elections, after a period when it had seemed to become fairly rare. Members and the public will have to make up their own minds about that.
The new situation alerted our organisation, in other constituencies as well as my own, to the danger that the election results could be falsified and the country endowed with a government that the electorate did not wish to see in power, unless we were especially vigilant. This was true of our organisation in Dublin North — a very marginal constituency, the most marginal in the country, indeed. The organisation there, as elsewhere, were alert both to the danger of personation — people voting on behalf of others, by seeking a vote in their name early in the day before they would be likely to go to the polls themselves, or in the name of persons absent or dead — and to the danger of double voting by people whose names appeared more than once on the register.
The latter may not appear to be likely to be a serious problem and many people may assume that it could not or would not be. However, the simple fact is that, because of the extraordinarily defective state of the electoral register, many people entitled to vote — sometimes whole roads or blocks of flats — are excluded, while many other people are registered twice. I can testify to the commonness of the latter phenomenon, because I and others registered at my address were, in fact, doubly registered in the 1981-1982 register, for both these elections and I found it necessary, when voting at the opening of the poll, to draw the attention of the presiding officer and polling clerk to this fact, lest anyone attempt to vote in the name of people registered in my house, using the second entry in the register.
Given the frequency of double registration on grossly defective registers the opportunity exists, not alone for personation but for double voting. Double voting is covered by the relevant section of the 1923 Act, a section which, contrary to one press report, was not repealed by the 1963 Act. It only repealed certain sections of the 1923 Act.
This section of the Act makes it an offence for someone having voted once in his or her own name to ask for a ballot paper on a second occasion. It is with this offence that Mr. O'Connor and members of his family were charged. The evidence as to fact was conclusive, given by a presiding officer, poll clerks and Fine Gael personation agents in the two polling stations in respect of which Mr. O'Connor and his family had been irregularly registered. One presiding officer chose to change his evidence given to the police and had to be treated as a hostile witness, but the chain of evidence was completed without the evidence of this gentleman.
The district justice stated that he had studied the law carefully but, as had been pointed out in well researched newspaper articles, he got his facts completely wrong, alleging for example, that Ms. Mairín de Burca had taken a case about the numbering of ballot papers when, in fact, she had nothing to do with that case. He chose to hold, contrary to all previous decision—and to a subsequent decision where the person concerned was less prominent than Mr. O'Connor and was given a prison sentence now being appealed—that the fact that Mr. O'Connor had gone to a polling station, sought a ballot paper, gone to a booth and returned and cast his vote in the ballot box did not prove that he had voted and that, therefore, it could not be shown that his second request for a ballot paper at another polling station where his name was on the register occurred after he had already voted. The decision was as perverse and nonsensical as the district justice's facts were wrong. It would make the relevant section of a sixty-year-old Act inoperative and would, if allowed to stand, impugn all previous convictions for double voting. It has been universally condemned by lawyers as undermining the law and the electoral system.
As the Taoiseach has said, this decision, taken in conjunction with the subsequent contrary decision in another case, is presumably being considered by the Director of Public Prosecutions, with a view to stating a case to a higher court, so that the judgment in this case, which would, if allowed to stand, destroy completely the efficacy of the law against double voting, can be reviewed and, I believe, set aside. This would protect our democratic system against a danger not hitherto suspected to exist and ensure that justice is done and seen to be done on a fair and equitable basis, as between those coming before the courts, regardless of their position in life.
But such a reference, which can be made within 14 days of a case being heard, would itself, if undertaken, not come to court for some time and the law would in the meantime remain in doubt and would encourage people twice registered in the constituency of Dublin West, of whom I am sure there are many, on the basis of the type of register to which we have been accustomed, to emulate Mr. O'Connor in the knowledge they would have as their defence if apprehended the existence on the record of a court decision that they had committed no offence by acting in the same manner as the election agent of a candidate had done.
The existence of this possibility for the distortion of the election result in Dublin West is such as to require immediate legislative remedy. Such a remedy is easily available: it involves only changing the wording of the section to make the offence one of having asked for a ballot paper, having already asked for and received a ballot paper in another instance which is, I believe, the law in Britain. What we seek is such a change in the law. I am glad the Taoiseach concurs with our view and I am sure we will have no difficulty in agreeing between parties as to the exact nature of the amendment required and passing it through both Houses of the Oireachtas rapidly so that it will be the law, signed by the President and in operation before the election takes place in Dublin West.
I should perhaps add that such legislative amendment would not, of course, in any way prejudice the process of reference of the existing legislation by way of case stated to a higher court, which we would expect that the Director of Public Prosecutions would proceed with in any event, as necessary to clarify and uphold the validity of past convictions, and indeed of one subsequent conviction, and to provide a clear basis for a decision in other cases that we understand may be pending arising from the last election with its unusual incidence of personation.
However that may be, I am glad that the Government intend to introduce at once, in agreement with all parties, legislation which will once and for all put beyond doubt the law on double voting, so that the moving of the writ for the Dublin West by-election may proceed with the sure knowledge that the democratic process in that election will be adequately protected.