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Seanad Éireann díospóireacht -
Thursday, 10 Dec 2015

Vol. 244 No. 7

Electoral (Amendment) (No. 2) Bill 2015: Committee and Remaining Stages

Section 1 agreed to.
SECTION 2

Amendments Nos. 1 to 6, inclusive, form a composite proposal and may be discussed together, by agreement. Is that agreed? Agreed.

Government amendment No. 1:
In page 4, between lines 20 and 21, to insert the following:
“(b) in section 2, by inserting after the definition of “the list of candidates” the following:
“ ‘Local Authority Members’ Association’ means the association of the members of local authorities (within the meaning of section 2 of the Local Government Act 2001) known as the Local Authority Members’ Association;”,”.

I signalled the amendments on Second Stage. They provide for the inclusion of the Local Authority Members Association in the register of nominating bodies for Seanad panel member elections in the same way as the Bill provides for the Association of Irish Local Government to be included. The amendments will give equal recognition to the two local government representative bodies for the purposes of making nominations to the administrative panel for Seanad elections. The overall effect of the amended section 2 will be to replace the references to the Irish County Councils General Council and the Association of Municipal Authorities of Ireland in sections 8, 27 and 58A of the Seanad Electoral (University Members) Act 1937 with reference to the Association of Irish Local Government and the Local Authority Members Association. No increase in the number of nominations to the administrative panel will arise from the changes. No changes are being made to the electorate for Seanad panel member elections.

I agree with the amendment. I congratulate my colleague, Senator Diarmuid Wilson, on introducing legislation in this area last week, on which I hope the Government will act, to extend the franchise for Seanad by-elections.

I agree with other Senators that it is important that local authority members, through the Local Authority Members Association, are recognised as a nominating body, as is the Association of Irish Local Government. Local councillors play a pivotal role. The changes in the legislation introduced in the 2014 Act by the then Minister, Mr. Hogan, increased the differential between the electorate and the councillors in the sense that Ireland became less democratic because there were fewer councillors at the point of contact with citizens through the removal of the town councils. That resulted in approximately one councillor representing approximately 4,800 people, whereas prior to that it was approximately one councillor per 3,000 people. We moved from being a country that was fairly democratic in comparison with other European countries on the league table in terms of local authority members per head of population to one which is on the outer limit in that regard.

When that happened, there was an obligation for the Department of the Environment, Community and Local Government to recognise it by giving additional resources to those councillors to fulfil their duties in a professional manner. These resources should not just be monetary resources but additional forms of support also. It was mentioned by a number of Senators that in the past week, in particular, with the flooding we have seen, councillors have been at the coalface, delivering democracy at the local level. In order for this to be done efficiently and properly, and to provide the electorate-----

The Senator is not addressing any of the amendments before us. It is a Second Stage speech.

It is a Second Stage speech. Will Senator Brian Ó Domhnaill, please, stick to the amendments?

I am absolutely addressing the amendments. I am sure the Leader would agree that the Local Authority Members Association, LAMA, represents all those councillors. It is important that they are given that recognition. Not only are we seeking to recognise them in the nominating body, but we are also seeking to recognise them in the work they do under the 2014 legislation, in which the then Minister, former Deputy Phil Hogan, promised to review the issue. There is a new Minister, but I ask the Minister of State, Deputy Ann Phelan, to recognise the issue.

We fully support the amendments but we should go further and recognise the role of councillors and not just the nominating bodies. We can do that by amending the provisions for councillors. These are not just financial as there are other provisions required as well. I know LAMA and some of the other bodies have been raising such matters with the Minister, Deputy Alan Kelly, and others. Those demands should be recognised as by doing so, the citizen would be given a better level of representation, which is what democracy is all about.

France has done that and there is one politician per 115 people in that country. We have one councillor per 4,850 people; therefore, there is a big difference. The citizens deserve representation that they expect, and this can only come about by resourcing those who provide the representation. It happens here, as Senators and Deputies are well resourced financially and in terms of support but councillors do not receive the same level of remuneration or support for secretarial work, etc. The issue should be considered and in a democracy, no government should be afraid to do it, regardless of a public backlash. That is not the question, as the public deserves such representation. Elements of society may start a backlash but the public deserves this level of representation. We should never be afraid to revisit areas like this. In raising the issues today, I hope the Minister of State will relay the comments to the Minister.

I will speak to the amendments. The Minister of State may have to return another day to address the issues raised by the previous speaker. There is an agreement in the Seanad, facilitated by the Leader, that we would all work together to advance the rights of councillors. As the Senator stated, their workload has expanded and they now represent over 4,000 people each rather than 1,000 people. It is a major workload involving secretarial work, expenses and mileage allowances. The Leader has facilitated an agreement that we will work towards that. Perhaps the Minister of State or the Minister will return in the near future to discuss all the very important issues that we want to raise. That will not be today, as this is Committee Stage; therefore, we will stick to the amendments.

Amendment agreed to.
Government amendment No. 2:
In page 4, line 22, after "Government" to insert "and the Local Authority Members' Association".
Amendment agreed to.
Government amendment No. 3:
In page 4, line 33, after "Government" to insert "and the Local Authority Members' Association".
Amendment agreed to.
Government amendment No. 4:
In page 4, line 40, to delete "Government is registered" and substitute "Government and the Local Authority Members' Association are registered".
Amendment agreed to.
Government amendment No. 5:
In page 5, to delete lines 4 to 7 and substitute the following:
" "(3) In the case of the Association of Irish Local Government and the Local Authority Members' Association, the persons to be proposed for nomination to the administrative panel by those bodies respectively shall be chosen by the members of the body voting on the system of proportional representation by means of the single transferable vote.",".
Amendment agreed to.
Government amendment No. 6:
In page 5, to delete lines 11 to 14 and substitute the following:
" "(3) In the case of the Association of Irish Local Government and the Local Authority Members’ Association, the person nominated under this section shall be chosen by the members of the body voting on the system of proportional representation by means of the single transferable vote.".".
Amendment agreed to.
Section 2, as amended, agreed to.
Sections 3 and 4 agreed to.
NEW SECTIONS

Amendment No. 9 is consequential on amendment No. 7 and the amendments may be discussed together.

Government amendment No. 7:
In page 7, between lines 7 and 8, to insert the following:
“Review by Standards in Public Office Commission - direction
5. Section 4 of the Electoral Act 1997 is amended by inserting after subsection (4) the following:
“(4A) Where a person fails to comply with a requirement made of him or her under subsection (4) within such time as the Standards in Public Office Commission considers reasonable, it may direct the person to furnish it with such information, document or thing specified in the direction within such period of time mentioned in the direction and, if the person fails to comply with the direction within that period, the person commits an offence and is liable on summary conviction to a class D fine.
(4B) Any information furnished by a person (other than information that the person knows is false or misleading) to the Standards in Public Office Commission pursuant to a direction under subsection (4A) is not admissible as evidence in proceedings brought against the person for an offence.
(4C) It shall be a defence for a person charged with an offence under subsection (4A) to show that the information, document or thing the subject of the direction was not in his or her possession or control and that it was not reasonably practicable for him or her to comply with the direction.".".

I signalled this amendment on Second Stage and it provides for the amendment of section 4 of the Electoral Act 1997. The Act provides for the disclosure of donations by Members of the Oireachtas, MEPs, political parties and accounting units, election candidates and third parties. It also provides for the regulation of expenditure at Dáil, European and presidential elections by candidates, political parties and other persons who incur election expenses.

The provisions in the Act are implemented by the Standards in Public Office Commission. Section 4(4) of the Electoral Act 1997 provides that the Standards in Public Office Commission may make such inquiries as it considers appropriate and it may require any person to furnish any information, document or thing in the possession or procurement of the person that the commission may require for the purposes of its duties under this Act.

In reporting on the implementation of these provisions in the Electoral Act 1997, for which they have responsibility, the Standards in Public Office Commission has recommended that failure to co-operate with inquiries made by the commission under section 4(4) of the Act should constitute an offence. The commission is of the view that this will strengthen its hand in implementing the provisions of 1997.

Amendment agreed to.

I move amendment No. 8:

In page 7, between lines 7 and 8, to insert the following:

“Amendment of Electoral Act 1992, Referendum Act 1994 and Presidential Elections Act 1993

5. (1) Section 85 of Part 15 of the Electoral Act 1992 is hereby repealed.

(2) Section 42 of the Presidential Elections Act 1993 is hereby amended by the substitution of “section 86” for “sections 85 and 86”.

(3) Section 30 of the Referendum Act 1994 is hereby amended by the substitution of “section 86” for “sections 85 and 86”.

(4) (a) The Minister may make regulations for the general purpose of this section and may, by regulation, provide for any matter referred to in this Act as prescribed or to be prescribed.

(b) Every regulation under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done under the regulation.

(c) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.".

This amendment relates in particular to voting on the offshore islands. It is about bringing all voting on all days into line, particularly for general elections, although it is important to bring local elections into this also. I come from a county with a number of offshore islands, such as Arranmore, Tory and Inishbofin. There are smaller islands such as Gola also. Until now, in the case of general elections the legislation permits the returning officer to hold the election on an offshore island up to five days before the general election date specified by the Minister. That leaves the electorate on the islands at a disadvantage when they go to vote. If any issue was to emerge, or if a candidate shone or Government policy were introduced in the days ahead of the election - even the day before or two days before it - the islanders would have cast their vote under different circumstances to the general population. That is wrong.

We live in a technological age, with enhanced transport and communications. Before the Internet, it may not have been such a pressing issue but it is today because of technology and globalisation. We should be in a position to allow all elections for the same office to be held on the same day, irrespective of whether people live on an island or the mainland. For example, in the last general election in 2011, there were four constituencies with offshore islands. These were Donegal South-West - now a Donegal constituency - Mayo, Galway West and Cork South-West. The general election was held on 25 February 2011 and voting in Donegal South-West took place on 23 February, two days before the voting on the mainland. Those votes were cast on the islands of Arranmore, Gola, Inishbofin, Inishfree and Tory, with 760 people voting. In Mayo votes were cast on 23 February, two days before the election, with 194 people on the three offshore islands of Clare, Inishbiggle and Inishturk. In Galway West, votes were cast the day before the election, with 1,155 people voting. In Cork South-West, 466 people voted on the same day as the general election. That means 2,575 people voted on offshore islands in the 2011 general election.

A provision could be incorporated into this legislation to allow, at the next general election, people who live on islands to vote on the same day as a general election is held.

I have spoken to people who live on the Donegal islands of Tory, Arranmore, Inishfree and Gola and on Inishbofin, County Galway. Some of them argue that they do not vote because they have to vote early. They believe they are voting with one eye closed so to speak because they do not get the whole picture. In order to bring democracy into the 21st century islanders should be afforded an opportunity to vote on the day a general election is held.

The Department's response has been that weather and environmental factors come into force, that ballot boxes may not be returned to the count centre on time, etc. I do not buy such excuses because we have transportation infrastructure that allows ferry services to the islands to operate and there is a helicopter service. There are other ways to bring ballot boxes to the islands. For example, many of the islands are served by excellent search and rescue operations which could bring ballot boxes to the mainland. We must look at the issue.

Deputy Éamon Ó Cuív has raised this matter in the other House during the debate on Report Stage of this legislation the week before last. I agree wholeheartedly with everything he said. Island citizens deserve electoral equality and should be given an opportunity to vote on the day of an election the same as everyone else. Such a provision would not generate an additional cost to the Exchequer. I want equality so I want island populations and voters to be given the same rights when it comes to information. Elections are all about voting. The electorate has a right to vote under informed circumstances. Island inhabitants are being disenfranchised in terms of the information that may emerge up to five days before a general election, local election, presidential election or a referenda. Fianna Fáil had an opportunity to correct the situation but did not do so. Previous Ministers for the environment had an opportunity to improve the situation but did not do so. It is now time to make the change given the age that we live in terms of communications and transport infrastructure. The provision was not accepted in the Dáil. I am not sure what reasons the Department and Minister have for not incorporating this provision. We should incorporate such voting and this legislation allows for same.

All Stages of the Bill will be taken today. Perhaps acceptance of the provision is beyond the Minister of State's brief as the matter revolves around the Minister, but she may be able to use her good offices. Perhaps she will decide to review the matter and not proceed with all Stages of this legislation today. She could come forward with alternative proposals that could be incorporated into another piece of legislation. A general election is only weeks or months away so unless this matter is dealt with today there will not be another opportunity to do so before the general election is called. This debate is our last opportunity to deal with this matter and amend the situation in time for the general election in 2016. It would be a lovely gesture if the Fine Gael and Labour Party Government, going into 2016 which is 100 years on, were to allow all of the citizens of the State to vote on the same day. The Government should say to the island people of County Donegal and other counties "Yes, we give you the opportunity to vote on the same day". It would be a great gesture and I am sure that the Minister of State agrees with me.

Nice try, Senator.

We have debated this particular issue at great length. I know Deputy Eamon Ó Cuív has a great interest in this issue. I have instructed the Department's officials to communicate with returning officers on the islands to see if a case could be made for same-day voting and the matter has received great consideration. Having listened to returning officers, we decided to err on the side of caution and have left the decision in the hands of the returning officers. I appreciate the interest shown in this matter. We did give it a lot of consideration. In the interests of the comments made by Fianna Fáil Senators on the voting arrangements for island communities at elections and referendum, and polling takes place on 20 islands off our west and south coast, the decision on when to take the poll on an island is a matter for the local returning officer.

Section 85 of the Electoral Act 1992, the Act that this amendment proposes be repealed, provides for returning officers to have the flexibility to take the poll on an island on an earlier date. A returning officer can do this if he or she is of the opinion that, due to weather conditions or transport difficulties, it would be impractical to take the poll on an island on the polling day appointed by the Minister. Returning officers can do so if they are of the opinion that if the poll was taken on that day it would be impractical to deliver the island's ballot boxes in time for the start of the count at 9 a.m. the next morning.

It is not desirable that the counting for any constituency should be delayed because all of the ballot boxes are not at the count centre. The provisions in the Electoral Acts are there to cater for this scenario. The amendment was tabled in the Dáil and debated both on Committee and Report Stages in the House. When I spoke to it I did not deny that cancellations of island ferry services are few and far between. The fact is that they do happen and we need to provide for such situations. I draw the Senator's attention to the fact that the ferries to the islands were cancelled last Friday and Saturday. With the weather conditions that we have experienced over the past number of days we need to err on the side of caution and leave the decision with the local returning officer.

The returning officer in the constituency is best placed to decide on whether the poll should be taken on an island on an earlier date. It would not, therefore, make sense to repeal section 85 of the Electoral Act 1992 and I will not accept the amendment. What I would say to the good Senator, which may allow a little encouragement, is that the election is not very far away. If he comes back as the Minister with responsibility for the environment, he can make the repeal.

The Minister of State's comment shows she does not have much confidence in the Minister.

I want to react to what the Minister of State said. I welcome where she is coming from and appreciate that she has come in here with a response. I also appreciate where the returning officers are coming from. Unfortunately, returning officers are given leeway in legislation to allow them five days to ask for a change of polling day. The returning officer acts on behalf of the State. Therefore, it is the citizen that has been disenfranchised and not the returning officer. The argument has been advanced that a change would delay the counting of votes but so be it. The votes could be counted 48 hours later. We could also have a day in between for all of the candidates and the teams involved to recuperate. We should have all of the votes counted on the same day which is the following day. We should look at the issue form a constitutional point of view. I would love to hear whether the Department has received constitutional advice from the Office of the Attorney General in terms of disenfranchising citizens who live on an island simply because of the view of returning officers. I think that is the wrong way to go. Is there a legal impediment to making a change? Are island people being disenfranchised with this provision? I would argue island communities are being disenfranchised.

Island communities are not being disenfranchised.

I argue that they are for the following reason. What if the general election is held on a Friday? The last election was held on Friday, 25 February. The electorate could have voted on the previous Monday. What if major issues relating to a political party arise on the Tuesday, Wednesday or Thursday? The good or bad news could influence the outcome of that election.

On that Monday people were disenfranchised because they did not have that information when they cast their votes. Their votes are as important as those of people living on the mainland. Votes are the same, irrespective of where one lives. This undermines the constitutional rights of people living on islands. I argue that the view of the returning officer, important as it may be, does not carry the same weight as the constitutional rights of the people living on the islands. We are not going to create any impediment to the passing of this legislation but was the view, legal or otherwise, of the Attorney General's office requested or sought in regard to this amendment?

Does the Minister of State have anything further to add?

There are only two points I would like to make about this. Postal voters also vote early. The returning officers communicated with the islanders this week and the islanders said that they were happy with the situation. Other than that, I have nothing further to add.

I cannot accept the Minister of State's last comment. In saying that, I am not having a go at her. She should ask some of my colleagues in the other House, who represent constituencies where island voters live, about this. There is no basis to indicate, nor is it a scientific fact, that island voters prefer to vote early. That is not the case. Research has not been conducted by the Department of the Environment, Community and Local Government to get every islander's view on this. If a poll had been conducted, I might accept that view but I do not accept it on the basis of a returning officer having said that he or she spoke to a few people on the island and that there was no issue with this. That is not what happens when an election is called.

The island population telephones the local radio station, whether it be Raidió na Gaeltachta, Galway Bay FM, Highland Radio in Donegal, to complain that voting will be early. People complain to us, as public representatives, that voting is being held early and bodies on the islands, whether co-operatives, committees or otherwise, raise the issue also. Returning officers saying there is no issue is not based on fact or anything else.

The postal voting issue is set down in legislation to allow people to vote who cannot attend at a polling station. There is a big difference between a postal vote and people, who could vote on polling day, voting early. This is not a question of people who cannot vote on polling day but of people not being allowed to do so. There is a massive difference. There are constitutional issues. By proceeding in this way, the State is leaving itself open to a constitutional challenge in this area some time in the future which will result in additional costs for the State. This could be easily remedied. I do not believe it is a Fine Gael and Labour Party Government issue that is precluding this. There may be factors around working conditions and issues within the Department of the Environment, Community and Local Government that are precluding this. It just takes a bit political leadership to say "No" on this one and that we will allow these people to vote on the same day as everyone else.

Why can we not hold the count back for a day? There is nothing to stop that happening. Failure to provide for this in the legislation represents a lost opportunity.

Amendment put and declared lost.
Section 5 agreed to.
Schedule agreed to.
TITLE
Government amendment No. 9:
In page 3, line 6, to delete "and the Electoral Act 1992." and substitute ", the Electoral Act 1992 and section 4 of the Electoral Act 1997.".
Amendment agreed to.
Title, as amended, agreed to.
Bill reported with amendments, received for final consideration and passed.
Barr
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