Seanad Éireann díospóireacht -
Tuesday, 23 Jun 1992

Vol. 133 No. 7

Death of Former Member. - Electoral (No. 2) Bill, 1991: Committee Stage (Resumed).

Question again proposed: "That section 57 stand part of the Bill."

Question put and agreed to.

Sections 58 and 59 agreed to.

SECTION 60.

Dr. Upton

I move amendment No. 74:

In page 44, subsection (2), line 4, after "number" to insert "(being at least a minimum number to be prescribed)".

In this amendment we are suggesting that provision be made for the appointment of a minimum number of agents for candidates to be present in polling stations at the issue of ballot papers to postal voters and particularly at the opening of ballot boxes and the counting of votes. In my experience in rural constituencies things seem to be fairly free and easy in as much as anybody who wants to get into the count seems to be able to do so. That certainly has been my experience of elections that were held in County Clare. In Dublin the situation seems to be much more restricted and I would be concerned that the returning officer would have complete discretion as to the number of agents for each candidate who would be allowed into the count and to be present at the opening of ballot boxes. I would like to see provision being made for a minimum number of agents, perhaps ten, to be present. Otherwise the whole operation could become very restrictive.

It is a very important part of the whole political process that agents are present during the counting of votes so that they can have as detailed a knowledge as possible of where the votes came from; indeed, that greatly helps the political process in as much as it allows politicians to understand what were and what were not important issues in different parts of their constituencies. For those reasons I ask the Minister to consider making an order specifying a minimum number of people to be allowed in for each candidate at the count; I would suggest the figure five. I understand that numbers must be controlled because space may be limited and that varies from constituency to constituency and from counting centre to counting centre. I would be concerned that some returning officers may be excessively restrictive of the number of people allowed in.

Mr. Costello

I support Senator Upton. We are looking for national guidelines so that the matter is not left entirely to the discretion of an individual returning officer. If it is, there will be variations from one constituency to another. While a certain amount of discretion can be left to the returning officer, it is reasonable to expect that some direction be given to avoid major variations in different parts of the country in the number of people allowed in by the returning officer as agents representing the candidates. The section covers a number of areas — issuing ballot papers to postal voters, the numbers in the polling station itself, the opening of the postal ballot boxes and the area Senator Upton specifically focused on — the counting of the votes. In all these cases, it would be appropriate that the minimum number of agents to be admitted should be prescribed by regulation by the Minister. I believe it would help all concerned.

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

Section 60 relates to the appointment by candidates of agents to attend on their behalf at the different stages of the election. Subsection (2) stipulates that, in the case of the postal voting procedures and the counting of votes, the number of agents who may be appointed by each candidate shall be fixed by the returning officer. The same number must be allowed for each candidate.

Amendment No. 74 proposes to include the requirement that a prescribed minimum number of agents should be permitted in respect of each candidate. This is a practical matter. The number of agents who can be present must be decided in the light of the circumstances of each case. The circumstances include the number of candidates contesting, the number of parties, groups and individual candidates, the accommodation available and the number of counting teams employed by the returning officer. Only the returning officer is in the position to weigh up these factors. If a minimum number were to be set by this Bill or by regulations, the figure would be so low as to add nothing of substance to the provision as drafted. Probably all that could be said is that at least one agent must be allowed. I suggest that the amendment be withdrawn.

Dr. Upton

I accept that there will be practical difficulties and a need for some degree of flexibility but what I am anxious to try to guard against is that some returning officers, may begin to regard election agents and people doing tallies at polling stations as an irritant. I would like to see some provision with adequate levels of flexibility being made to allow for the maximum numbers possible to be present. As we are now moving into a new phase of trying to speed things up, perhaps the Minister would consider what I am suggesting, see if any initiatives can be taken and come back to us on Report Stage.

Mrs. Hederman

My experience in a number of elections has been that the returning officers are very sympathetic to all candidates. As an Independent, — the Minister will note I did not say "Non-Party", I will have to remember that when this Bill is passed — I have never experienced any discrimination nor have I been offered fewer facilities as to the number of agents I could have appointed. There is no harm leaving this matter to the returning officer. The fact that there may be variations around the country I think is a good thing. I detest the idea that everything has to be the same; soon all over Europe, everything will have to be the same. Of course there will be local problems. It is legitimate that the returning officer should make the final decision.

I do not know whether this amendment has been prompted because the Senators who tabled it found that a returning officer did not allow an agent to be present, or something of that nature. If that is the case, the amendment is worthwhile, otherwise I would be happy to leave the matter to the returning officer.

Mr. Costello

I agree with the Minister that this may pose practical difficulties. Our approach should always be to try to facilitate people. Part IV imposes an obligation on the local authority to draw up a scheme for polling districts and polling places. The onus should be on the local authority to ensure that the facility is of such standard and size as to facilitate the presence of a reasonable number of people at the counting of votes. We are talking about a Dáil election. For candidates who are representing thousands of people this is a very serious matter, as it is for the electorate exercising the franchise.

There have always been complaints about the number of people allowed in at the counting of votes. The number is never adequate. Unless we specify a minimum number to be guaranteed admission, the matter will be left to the discretion of the returning officer. As a rule, the number of candidates standing for a constituency in any election does not vary much. There may be a couple of extra candidates, some of whom are no-hopers, who will not seek to have even the minimum number of agents present. Very often a large party, such as the Minister's party, will seek to increase the number of its agents where Independent candidates have fewer agents. The best course to take would be to specify a certain number.

Mr. Naughten

I favour the wishes expressed by the Minister that this should be left to the discretion of the returning officer. I have contested more elections than any other Member present today and I must say the system has served us well in the past. Tying the hands of a returning officer to a particular number——

Mr. Costello

——a specified minimum number.

Mr. Naughten

——to the minimum, may have an advantage in some circumstances, but the system has worked very well in the past. Returning officers' have shown a great degree of flexibility facilitating candidates, parties and agents of candidates to allow agents to attend counts so that they can conduct tallies while representing candidates and their candidates' interests. As I said, the system has served us well in the past. I would be very reluctant to support any change.

Dr. Upton

In relation to what Senator Naughten has said, in my experience there is a huge difference between what happens in country areas and what happens in Dublin. My experience in County Clare is that the world and his wife turn up in Paddy Conn's Hall in Ennis to watch the count. In Dublin it is much more restricted and a number of people who would like to be at counts are unable to be there. I accept that there must be limits but the objective should be to allow as many people as possible, within reason to attend.

Mr. Wallace

It would not be appropriate to lay down minimum numbers. Circumstances will vary as between returning officers and constituencies and even between accommodation used at different elections in the same constituency. To set minimum numbers would be unreasonable, given the many imponderables facing a returning officer. The returning officer is responsible for the smooth and efficient conduct of the count. It is his responsibility to ensure that suitable arrangements are in place and that attendance by those present is properly regulated. It is not feasible to lay down any numbers or mandatory requirements for this purpose such as are proposed in the amendment. The experience of the operation of the existing provision shows that it works satisfactorily and smoothly and that returning officers will allow as many agents to attend as circumstances reasonably permit. Common sense prevails and there are rarely complaints.

The House will agree that the existing provision being re-enacted here is a reasonable and flexible one and that the insertion of the new provision along the lines proposed in this amendment is not desirable. I want to assure the House that I will bring this to the notice of returning officers and I will ask them to bear in mind the views of the Senators.

Amendment, by leave, withdrawn.

Section 60 agreed to.

Sections 61 and 62 agreed to.

SECTION 63.

Government Amendment No. 75:

In page 46, subsection (1), lines 48 to 51, to delete paragraph (b) and substitute the following paragraph:

"(b) if, after the issue of the writ and before the commencement of the poll in the constituency, the Clerk of the Dáil becomes satisfied that the outgoing Chairman of the Dáil has died—".

Mr. Wallace

Section 63 sets out the procedure to be followed when the outgoing Chairman of the Dáil, who is to be returned unopposed at the general election, dies during the election period. The section sets out the different procedures to be followed when the death occurs at different stages between the dissolution of the Dáil and the close of the poll at the election.

Section 63 (1) (b) deals with the period between the issue of the writ and the commencement of the poll. In this situation the Clerk of the Dáil is required to recall the writ and issue a new writ directing the returning officer to hold an election of the full number of members for the constituency. As drafted, the provision refers to the death of the Chairman during this period. The reference should be to the Clerk becoming satisfied as to the death during the period in question. It is possible that the death might take place before the issue of the writ, but the Clerk might not become aware of the death until after he has issued a writ for the election of the reduced number of members for the constituency.

Amendment No. 75 is a minor drafting amendment to clarify that the expression "after the issue of the writ and before the commencement of the poll in the constituency" relates to the Clerk of the Dáil becoming satisfied of the Chairman's death and not to the time of the death.

Amendment agreed to.

Section 63, as amended, agreed to.

Sections 64 to 81, inclusive, agreed to.

SECTION 82.

Dr. Upton

I move amendment No 76:

In page 53, subsection (1), lines 34 and 35, to delete ", in the presence of a member of the Garda Síochána,".

This amendment seeks to remove the necessity for a member of the Garda Síochána to be present when a special voter is casting his or her vote. I cannot see any practical need for a member of the Garda Síochána to be present in those circumstances. The gardaí have enough to do without legislation requiring them to make themselves available to attend while special voters are casting their vote. I cannot see any need for this in the majority of cases yet there is a requirement that it should be done. It may cause a certain degree of concern for some special voters. There is something of a ceremony involved. A presiding officer and a member of the Garda Síochána arrive to do a simple straightforward piece of business. I do not see the necessity for that requirement and for those reasons I suggest it be deleted.

Mr. Costello

This aspect of the Bill has been brought to my attention by special postal voters. They are concerned about the procedure which takes place in the presence of the Garda and the special presiding officer. It could be said that the Garda have more to do with their time than presiding over people who are unable to go to a polling station to cast their vote. Second, the system discriminates against the disabled person because this system is not obligatory in the case of Army personnel or diplomats. The special voter should be treated in the same fashion as those people. If we are to have special presiding officers, the matter can be left to them.

Section 73 says "The postal voters ballot boxes shall be opened by the returning officer, in the presence of the agents, if any, before the time fixed for the counting of the votes". If there is no agent present, the returning officer opens the ballot papers on his or her own. It is sufficient that we appoint somebody to be the special presiding officer and let them carry out the job without bringing in a member of the Garda Síochána to preside. It is a rigid structure and is perceived as being unnecessary and an embarrassment by those who cast their vote in those circumstances.

Mr. Naughten

I differ with my colleagues with regard to the requirement for a member of the Garda Síochána to assist the special presiding officer. The provision deals with special voters many of whom belong to a vulnerable section of the community. I shudder to think that a special presiding officer could go to voters with a bundle of ballot papers but nobody is present to ensure that the right people get them and that they are marked in accordance with the wishes of the special voter. The garda plays a very important role in ensuring that the wishes of that voter are carried out and that their vote is cast as they intended. To remove the role of the Garda Síochána from this section of the Bill would be dangerous.

I would like to refer to the point made by Senator Costello with regard to the returning officer opening the special voters box without the supervision of an agent. The returning officer merely opens the covering envelope and not the ballot paper, which remains sealed until the morning of the count when it is scrutinised by the agents for the different candidates and then opened. There is no danger in that but there could be a grave danger if the special presiding officer was not as dutiful as he should be. That could leave special voting open to serious question. When postal voting was introduced in 1974 the system was lax and there were abuses. The presence of a member of the Garda Síochána at the time of voting was not required. What was required was the signature of the garda which is totally different from the garda having to accompany the special presiding officer. At that time there was no special presiding officer. The applicant applied for a vote, got the ballot paper and then merely had to get the signature of a member of the Garda Síochána to say they had voted. It was wide open to abuse. It is of vital importance that a member of the Garda Síochána should accompany the special presiding officer with the ballot paper.

Mrs. Bennett

I also agree the practice should not be changed. It is important that we have a member of the Garda Síochána present. The people have always expected the garda to be there and it is not a practice I would like to see changed.

Mr. Wallace

Section 82 sets out the method of voting by disabled persons who are registered as special voters. The voting papers are delivered to the elector at his home by a special presiding officer accompanied by a member of the Garda Síochána. This section re-enacts existing law without any change. Amendment No. 76 proposes to delete the requirement for the presence of the garda.

In the special voting arrangement the presence of the garda serves a number of purposes. The garda is an independent witness who ensures that voting is properly carried out and that the secrecy and integrity of the ballot are respected. He provides physical security and protection for the special presiding officer, the ballot papers and other voting documents. He protects the presiding officer against careless and malicious allegations that might otherwise be levelled at him. A garda in uniform is a symbol of law and order, justice and fair play. His very presence enhances the integrity of the system.

When the special voting system was introduced in 1986 the Minister at the time saw the presence of a garda in uniform as one of the strengths of the new system, indeed, the essential core of the system. He rejected utterly the suggestion that voters would be frightened or embarrassed by the visit to their homes of a garda in uniform. I refer the Senators to the Seanad Official Report of 9 December 1986 on this matter. I am inclined to accept the then Minister's view of the situation and I suggest that the amendment be withdrawn.

An Cathaoirleach

Is the amendment withdrawn?

Mr. Costello

No, it is not. As far as I am aware, any of the alleged abuses that took place in relation to special voting came from people who applied to be included on the special voters list. They, were not committed by anybody who was a bona fide special voter. Some unscrupulous people actually made application to be included on the list even though they were not bona fide special voters.

What we are concerned about here is a different matter, whether it is necessary for a member of the Garda Síochána to be present. I was involved at the outset in the whole question of getting voting rights for those who are disabled. Quite a number of people have told me they are very dissatisfied with the present procedure and the very complex structure of voting arrangements which required the presiding officer and a garda coming to the home. It is the perception that there is discrimination in that context. They do not see why all this should be necessary to allow them to exercise their vote like every other citizen. That procedure does not seem to be necessary in other areas of the exercise of the franchise where certain other categories of voters are dealt with in a different fashion.

I do not know of any abuse. I ask the Minister if he has any instance of any attempted abuse by the presiding officer in relation to this procedure. There were attempted abuses in relation to applications but that is an entirely different matter. The procedure can be observed and monitored without actually having to bring a garda in on the operation. To my knowledge, there has not been any instance of abuse in that area and it would be better to see how we can best facilitate the special voter rather than looking to the hypothetical possibility of abuse.

Mr. Wallace

I would respond to that point by saying that if there has been no abuse, perhaps that is because of the presence of the Garda Síochána.

If the case were to be made that the special voting arrangements make undue demands on Garda manpower and resources I think that case would make a good deal of sense. However, removal of the requirement for a garda presence could leave us with a problem. The electoral law is careful to ensure that every aspect of the election is monitored by or on behalf of the candidates. No significant process is left to electoral officials only. Clearly, we cannot have personation agents present in a special voter's bedroom while he or she is voting. If the garda presence were dropped we would only have the word of the special presiding officer that the proper procedures were followed. Personally, I would have no problem with this, but I can see that others might. As I mentioned the presiding officer would be defenceless against any malicious insinuations.

It is a matter which should be weighted very carefully and would, I suggest, be appropriate to another day and another Bill. I ask that the amendment be withdrawn.

An Cathaoirleach

Is the amendment withdrawn?

Dr. Upton

No, it is not. It is implicit in what the Minister is saying that there is some difference between arrangements for special voters as compared with people in the diplomatic service, the Garda or the Army. I do not know that special voters have a disproportionate degree of the failings of the human condition and I find it difficult to understand why it should be necessary to have a garda present when they are casting their votes.

From a practical point of view, the number of special voters on the register is fairly small. It is very difficult to see any unfair or improper behaviour having a significant effect on the outcome of an election when one considers it in the context of the potential for personation that goes on at election times.

Mr. Wallace

Voting by diplomats is supervised by a person appointed by the Department of Foreign Affairs.

This system has worked well. It was brought in by the previous Minister who looked at the whole area. It is a good system and I ask that the amendment be withdrawn?

An Cathaoirleach

Is the amendment withdrawn?

Mr. Costello

No.

Progress reported; Committee to sit again.

An Cathaoirleach

Before I put the question I call on Senator Pól Ó Foighil, who wishes to move a matter of urgent public importance.