Wednesday, 27 March 1963
Dáil Éireann Debate
The Minister shall, by arrangements made with the sanction of the Minister for Finance, secure that the total cost of preparing and publishing the register of electors, shall be borne in approximately equal proportions by the State and by registration authorities.
As I suggested previously on the Second Reading of this Bill this ought to be a central fund charge and the expense involved in the time taken in calculating the proportionate expenses as between the local authority and the central authority could be offset against what the expenditure would be without letting it fall on central funds alone. I may be told that the register contains the list of jurors and that this is a matter for the local authority but the question of jury service and the details of making up the list of jurors is something which is of benefit in the administration of justice. Therefore, this charge should be borne by central funds, either under the Minister's Department or under the Department of Justice, rather than by the local authorities.
Mr. Blaney: Up to the present twothirds of the total cost of the preparation of a register and registration duties was borne by the local authorities. Under the present proposal that proportion is being reduced to one-half and on the nearest calculation we can  make we reckon that in all there will be a saving to the local authorities of about £10,000.
On top of that, the method of compiling all the general work that will be entailed in future under the new proposals will be less onerous and as a result probably less costly than it has been in the past. While we are not proposing to carry the entire burden of such expenditure we are reducing the amount that is to fall on the local rates, which is a considerable improvement. I should also point out that these registers and registrations are not solely for use in general elections, that they also have their uses in local elections.
In regard to difficulties about calculations I cannot see how they should arise. There will have to be a final bill drawn up, possibly authenticated and put properly before somebody or other. When the sum total of costs has been calculated for any area, it is only a matter of dividing it by two and I do not see any real difficulty in that regard.
Mr. Jones: While I appreciate what the Minister has said, he admits the lists as now drawn up will deal with electors for local elections and also with juries. Therefore, the purely local interest will be confined to those matters.
The Minister mentioned relief of rates. Only a small amount is involved in this matter but it would be very much appreciated if the Minister could see his way to take this charge. Some of it should be borne by the Department of Justice. I do not suggest that it should all be borne by the Minister's Department. The jurors list comes under the administration of Justice. It should be paid from the Central Fund rather than from local authority finances.
“(2) (a) Where a constituency does not consist of the whole or part of a county or county borough, the returning officer may appoint the appropriate officer to be assistant returning officer for part of the constituency.
(c) In this subsection the ‘appropriate officer’ means the county registrar for the county or county borough in which the part of the constituency is situate or if there is a sheriff for that county or county borough, such sheriff.”
This amendment is the substitution of this shorter form of words for what is already contained in subsection (2) as circulated. As the House can see, the amendment shortens the subsection very considerably and it was our wish that this should be done, where possible. I understand that what the amendment contains is what was contained in all the lengthy verbiage of the original subsection. In other words, this short subsection says exactly what was said in the long subsection (2), as drafted. For that very good reason, I recommend it to the House. It is very much shorter and has the same substance as the subsection as drafted.
Mr. Jones: The section provides that the Minister may by regulations specify the forms named in subsection (2) of  this section. There is no reference here to the 21 days for having regulations under the Acts laid on the Table of the House for the purpose of having these annulled, if necessary. Might I ask the Minister why it is that such reference is not made in this section?
Mr. Blaney: These are merely forms, as the Deputy is probably aware, and I think it is better that it should be done in this way rather than in the manner according to which in the past these forms were prescribed by statute and therefore were absolutely unchangeable without a change in the law. I should add that in this case the Joint Committee recommended that we should do this in the manner now proposed rather than in the manner prescribed by statute in the past.
This amendment is quite a simple one. As will be seen from the original subsection, it was proposed that the returning officers should be at their designated places to receive nominations between the hours of 10 and 5 o'clock. On its being drawn to our attention that, naturally, they would like to eat something during these hours, we proposed to amend the provisions so that they will have a break between 12 noon and 2 p.m. That is really all that is to it.
Mr. Blaney: I almost forgot to bring to the notice of the House that I might wish to have another try to make a part of this section conform more closely to what is suitable and might bring in an amendment on  Report Stage. It has to do with the delivery of the nomination papers, the closing hour for the receipt of nominations and the time within which nominations might be withdrawn. As now framed, the time made available for withdrawals might not be sufficiently long.
“(b) Where the candidate is not the candidate of a political party registered in the Register of Political Parties he shall be entitled to enter after his name on the nomination paper the expression ‘Independent’ or ‘Non-Party’ and two other descriptive words, and if he does so, the returning officer shall cause a statement of that expression and such words to be specified in relation to the candidate on all ballot papers and on notices.”
This Bill gives the best opportunities to Parties. Whereas up to now a nonentity in a Party might not get a vote at all because the supporters of the Party would be thinking in terms of personalities and might miss a nonentity on the panel, this Bill enables a nonentity to have alongside his name “Fianna Fáil”, “Labour”, “Fine Gael”. A nonentity will not miss a vote in future. This Bill ensures that.
This Bill tries to tie us down and roll all non-Party candidates into one. There is the difference between chalk and cheese between Independents. There are Independent Ratepayers, Independent Tenants' Representatives. They may be out for each other's blood.
This section also affects the ballot paper for municipal elections. There may be 20 or 25 candidates and seven or eight Independents, often with similar names. When certain people  look for their candidate's name on the ballot paper, they are not able to distinguish. The nonentity in the Party will get a vote, even though it may be the last vote but there will be trouble trying to distinguish between the non-Party Ratepayer, the non-Party Unionist, the non-Party Commonwealth candidate, and all that sort of thing.
In regard to this thing we call democracy, I have many misgivings. It allows a change of Government. That is the only thing in its favour. After that, we have Bills like this to ensure that there is fair play and that whatever rule applies to one group applies to all. The ballot paper should be so simple that even a nitwit will be able to cope and cast his vote according to his choice. The electorate is made up of 60 to 70 per cent intelligent voters; there is another 20 per cent which might be described as a floating vote; and five to seven per cent are stupid people who ask questions like: “Is de Valera going up here?” They ask all sorts of stupid questions. The paper must be simplified for these. Parties can make the best out of this because the voters will see “Fianna Fáil”, or whatever it is, and that will be sufficient indication. In the case of the Independents, they will simply be “Non-Party”. There have been cases when there were two candidates with the same name going up as Independents; there were two Mullens and two Carrolls on the panel. There must be some distinction made as between one non-Party candidate and another.
Everyone knows what “Independent” means. The most stupid persons know that an Independent candidate is a member of no Party, though some Independents are really Party men. I am not one of them; I sit by myself. I do not sit in the Independent seats in the corporation. I am independent of all Independents. I want to get that straight. I am not worried about this section but ballot papers in municipal elections often carry as many as 25 names. How could a voter make head or tail of such a paper with the simple description “non-Party” appearing several times? All the Independents  ask is that they be allowed to continue to use the description “Independent”. If that request is not acceded to, there will be no fairness in this at all.
Mr. Blaney: I can appreciate Deputy Sherwin's attitude on this but we must remember that, up to this, there has never been any question of distinguishing between one candidate and another on the ballot paper. It would appear from the arguments put forward by Deputy Sherwin now that by preventing “Independent” being put after the names in future, that will, in fact, create confusion. The fact is “Independent” has never appeared on a ballot paper up to this and therefore the non-use of “Independent” does not really arise or alter the situation in any way at all. In future, there will be a distinguishing mark and the application of “non-Party” will be sufficient indication as to what the particular name stands for, or does not stand for, if you like. I cannot see that the Independents will lose anything. They never had any identity hitherto.
Mr. Blaney: What does that denote? Does it denote that the other Independents are a group? If they are a group, they are no longer Independent. Yet the argument seems to be that we should, in fact, give legal standing to such a description of people who actually act together but describe themselves as independent in their actions. I cannot really follow this argument. It does not carry conviction to me. “Non-Party” will, in my opinion, be a guide. Surely that is the way those who regard themselves as  Independent would wish to be described? Surely that is the real difference between them and the rest of us who belong to political Parties and who are described as belonging to them? Those who belong to no Party will be described as “non-Party”. That is, I think, as clear as it is possible to make the situation.
Mr. Blaney: That is the situation so far as these people are concerned. I appreciate what has been said and I have gone into the matter since the Second Reading. The longer I look at it the more convinced I am that the description of “non-Party” and having the Parties named according to the Register of Parties that will be established under the Bill if it becomes law, is by far the best and clearest way to distinguish between all of us.
Mr. Sherwin: The Minister should remember that although we never had this right before, neither had the Parties. The Parties are able to distinguish themselves as Fianna Fáil, Labour, Fine Gael, and so on but all others will be down as “non-Party.” In the election campaign, all the publicity will describe them as Christian Democrats, Independent Labour, Independent Republicans, National Progressive Democrats and Independent Ratepayers. In the campaign, they will be asking both clever and stupid to vote for them as Ratepayers but when those people come to the booth, they will look for Ratepayers but they will not see that; they will see “non-Party”. The Minister should remember the campaign will be waged on a distinctive type of Independent and when the people come in to vote, they will be looking for that description. I would ask the Minister to think again, in addition to the promise he has already given, between now and the Report Stage about this point.
Mr. Blaney: That is something I shall have to consider. I suggest where there is a name denoting a particular interest and where there are a number of those people in a constituency or constituencies, they should register themselves as a Party with that name which they feel is a description of them and denotes what they stand for.
Mr. Blaney: The idea is to have a registered Party of that name. There may be several names that convey the same interest and if there are several people sharing that interest, why should they not register as a Party and be entitled in law to describe themselves as such-and-such a Party, as well as ensuring that no interlopers can so describe themselves?
Mr. Sherwin: In the fashion world, fortunes are charged for distinctive hats and gowns. The whole idea is to be distinctive. Everybody who goes to a racecourse will see what I mean. The owner of a certain hat will be furious to find somebody else has the same thing. It must have individuality. People devote their campaign to that distinctiveness.
Mr. Sherwin: I knew a man who wore an old hairy hat and a hairy waistcoat and he said his reason for doing so was that when they saw him once, they would always know him again. Individuals are entitled to be distinctive and not be in a herd. Surely nobody is jealous about that?
Mr. Sherwin: I do not mind if the Minister drops the “Independents” and leaves in “non-Party”, but at least give another word to distinguish people, which they could put in. So long as there is one word to distinguish a candidate, I am satisfied.
Mr. Blaney: In going over this matter again, I felt the arrangement we have in regard to the latest time for nominations and the length of time for withdrawal of nominations is probably too short, particularly where it would concern a person nominated without his consent. The proposal in the Bill is that the latest hour for receipt of a nomination by, or through a candidate in person, or through his agent or somebody representing himself to be an agent, would be 12 o'clock and that three hours later is the time in which to withdraw. While I am not fully convinced, there is the point that the three hours may not be enough in the type of case I have mentioned where the returning officer is being “codded” by somebody for an ulterior motive, which I shall leave to Deputies' imagination. I think three hours in that case is too short and I would propose to have the latest hour for nominations a day earlier and the latest time for withdrawals a day later, thus giving 24 hours in which to deal with all withdrawals, whether of this or any other type. Instead of having two times, one for nominations handed  in personally and one for those handed in on behalf of somebody, we could have just one time by lengthening it to a point where it will be possible for a returning officer to notify the prospective candidate nominated in his absence by an alleged agent, by telegram or otherwise in writing so as to give him an opportunity of knowing he has been nominated and an opportunity of withdrawing before he goes into the list and becomes a candidate without knowing anything about it.
I feel this is something that we should consider further. I think we can arrange it so that it will not disturb the present procedure in regard to the date of the writ, the announcement and publication of the writ and the acceptance of nominations and polling day. If we can do that, I propose to come to the House on Report Stage with such an amendment, primarily for the particular purpose I have mentioned and I think it will also be useful to all concerned to have a longer time between the closing date for nominations and the time for withdrawals.
Mr. Tully: It is provided that where a candidate does not nominate himself, his consent must be obtained. What has the Minister in mind in regard to such a person? If the consent must be obtained before the nomination is submitted, surely that solves the problem?
Mr. Blaney: Unfortunately, the consent has to be in writing. We have no way of determining in the space of the three hours that, in fact, it was written by the man himself. It could happen that a returning officer would be misled.
Mr. Blaney: It could help somewhat, but if we could bring in the longer time for the withdrawals, it would give us an opportunity of notifying him that he has been  accepted. That would give him the opportunity to withdraw and I think it would be a cleaner way of doing it.
Mr. Tully: If there is any doubt about whether the consent was properly obtained, will you not have every returning officer in the country checking up on candidates and will that not cause a lot of chaos?
Mr. Blaney: I do not think that in any great number of cases, such a check up would be regarded as necessary, but, if the returning officer has any doubt that the consent is genuine, it is up to him to make a check. It is better that he should do that than that he should allow a person to go forward who does not know he is going forward and who does not want to go forward.
Mr. Tully: Somebody is nominated by an agent and the returning officer is not satisfied. He writes to that person and gets a reply that the person has not consented. The returning officer then withdraws the nomination but all the time that person may have been willing to go forward. Does it not really mean that the returning officer will have to see every such person personally?
Mr. Jones: Subsection 6 says that the nomination paper should be delivered to the returning officer not earlier than on the second day for nominations and not later than 12 noon on the last day for receiving nominations. In subsection 9 (1), the returning officer is required to rule on the nomination paper within one hour after its delivery. It strikes me that if a paper is delivered at 12 noon on the last day for receiving nominations, the returning officer will find it very difficult to rule on the validity of that paper within an hour.
The second point that strikes me is  the fact that, as everybody knows, nomination papers are frequently left in the returning officer's office in his absence. Somebody receives that nomination paper in good faith, intending to show it to the returning officer when he comes back, but, in fact, the paper will not be deemed to have been delivered to the returning officer until he accepts it himself and the person may have forgotten to show it to him. There is the danger that in such a case the candidate might find himself not properly nominated. I should like to put these points forward for the consideration of the Minister in regard to these sections.
Mr. Dillon: I should like to say a word on the Minister's suggestion which, prima facie, appeals to me. Sometimes, if you try to take precautions against every possible contingency, you may create new difficulties. If an agent produces to a returning officer a properly authenticated document, to the effect that he has been nominated an agent by a candidate, he may then lodge nomination papers on behalf of that candidate and with those nomination papers, he must lodge £100 in cash or irrevocable cheque.
If a malicious person goes to the returning officer with a completed document of agency and presents a false nomination, he will be guilty of the criminal offence of forgery and along with that, he will lose £100. What better evidence in writing can a returning officer have than a formally executed document of authorisation of an agent? If you proceed to the precautions suggested by the Minister, the returning officer, on receipt of the nomination paper and the deposit from the authorised agent, will then send a letter or telegram to the person nominated asking for confirmation and if he does not receive that within 24 hours, he will declare the nomination void.
We are all living in a new age. At any moment the Minister might find himself in Geneva at a meeting of some international body. Any one of us, but particularly members of the Government, might find ourselves  attending some essential duty in Geneva, Washington, Paris, Rome or Strasbourg. The telegram is addressed to the home address of the prospective candidate who is abroad and it never reaches him. The returning officer is faced with the fact that there is no confirmation and he declares the nomination invalid.
Alternatively, the candidate is in the country and he writes to the returning officer. He will not have time to do that in 24 hours. Unless he can attend personally to confirm the validity of the nomination, the returning officer will be left under the impression that it is invalid. However, suppose the returning officer gets the letter, is that any better evidence to the returning officer than the formal agency appointment which the agent displayed before the returning officer accepted the paper?
While I admit that the Minister's proposal seemed to have much in its favour, on reflection I suggest to him that the existing safeguards are sufficient because if a situation arose against which the Minister wishes to make provision now, the agent would be guilty of a criminal offence in presenting a forged instrument; the agent would lose £100 in order to play the joke and the agent would have committed a further statutory offence, probably under the existing Electoral Acts, in having attempted to put in the nomination of a person for whom he was not authorised to speak. There are certain limits of precaution beyond which one cannot go. The existing safeguards are probably adequate but the additional safeguard the Minister has in mind would, in my judgment, create dangers greater than the danger against which he wishes to provide.
I would, however, like to associate myself with the problem raised by Deputy Jones. I remember on two occasions in my own personal experience nominations being handed in to the returning officer within five minutes of the last available hour. The Deputy has a very valid point: in those circumstances how can the returning officer proceed to rule on the paper within the hour because if he is free  to rule within the hour, it automatically extends the period of nomination for an hour beyond the statutory limit for nomination? It is probably true that the time of three hours for withdrawal is too short and prima facie I cannot see any objection to extending the period for withdrawals to 24 hours.
I have known cases, again in my personal experience, where people have been nominated and have elected to withdraw. It is administratively convenient — and one must not forget the urgency that attends getting out all the election literature, getting ballot papers printed, and so forth — to allow a period of 24 hours for withdrawal. That would be a sensible precaution, but if administrative problems make that extremely difficult, I would consent to a period of 12 hours from the last available hour at which it is legitimate to make a nomination but I prefer a period of 24 hours. If that is administratively possible, I suggest to the Minister he should content himself with extending the period for withdrawals to 24 hours and with examining the problem posed by Deputy Jones as to how the returning officer can in fact rule on the validity of a paper an hour after the last hour laid down in the statute for accepting valid nomination papers.
Mr. M.J. O'Higgins: I agree with Deputy Dillon in regard to the desirability of simplicity in these arrangements. One of the weaknesses of the present legislation is that there is a lot of red tape in which people can become very easily entangled but I am not sure that the point in regard to the agency would apply under the proposed legislation because under Section 21 (3) if a candidate is not nominated himself but has been nominated by someone else, the person making the nomination is not required to produce any instrument of agency at all. It is quite possible for any person, provided he is a registered Dáil elector, to nominate someone else and the existing arrangements under the electoral laws are that if an election agent is being appointed who can deal with the question of nomination of a  candidate, the appointment of the election agent must be in writing and must be notified to the returning officer, but under the section it does not seem to me that anything in writing is necessary.
I was also wondering in connection with this question of whether a deposit of £100 is an adequate safeguard, whether someone with a keen mind might not be able to get around that if he wanted to play a joke. Section 20 of the Act provides that a deposit of £100 may be made in legal tender or, with the consent of the returning officer, in any other manner. It is at the moment quite customary for the returning officer to accept for the deposit a guaranteed cheque. If a person nominates someone else and at the last available hour produces to the returning officer a guaranteed cheque, that will be accepted by the returning officer who then has an hour within which to adjudicate the validity of the paper. He adjudicates on the validity of the paper and decides that the nomination is valid. There is nothing to prevent the person who made the nomination then writing or telephoning to his bank and stopping the cheque so that there is a nomination without any authority in writing. A deposit is paid and subsequently stopped and I do not see that anyone has committed an offence under the proposals before us.
Mr. M.J. O'Higgins: It is guaranteed that, if presented, it is good for that amount. The person who draws the cheque is the person who authorises the payment and is fully entitled to instruct his bank not to pay that cheque, that he is withdrawing it.
Mr. M.J. O'Higgins: It is interesting to note that the controlling body of my profession recommended— because, I understand, of that very danger—that instead of guaranteed cheques being used for the purpose of completing convenient transactions, they should be done by means of a bank order. However, there is no point in going into technicalities. If the Minister examines it, he will see that I am right.
The point I was going on to make from that, on the assumption that I am correct, is, should there not be a provision in the Bill that in an eventuality such as that, if the State do not in fact get the deposit because of the guaranteed cheque being withdrawn, should that not automatically cause the disqualification of the candidate in respect of whom the cheque was given? I am very much in favour of trying to simplify this thing as much as possible. I think Deputy Dillon is 100 per cent. right when he refers to the desirability of simplicity in it.
Mr. Corish: One of the difficulties in this seems to be to ensure that the person so nominated consents to be nominated. Did the Minister ever think of having included in the nomination form a form of consent by the candidate? I know in respect of very many organisations, for any position in the organisation down to committee man a nomination would not be accepted unless there was the signature of the person nominated. That could get over a lot of your difficulties.
I will not say a returning officer is bound but it is natural to assume that he would accept the signature of a James Dillon or a Neil Blaney or any person who is nominated as being an actual signature. Signatures are accepted for many purposes although the person may not be personally known to the man who is charged with, say, accepting a nomination. There would be extreme difficulty, as Deputy Dillon has pointed out, in trying to locate the man to know whether or not he agrees to be nominated.
It has often occurred to me that one  of the difficulties in respect of nominations is that there is no provision on a nomination paper for the signature of assent by the nominee. That should suffice. It is a serious thing if a proposer or one who purports to be an agent nominates a person without his consent and forges his signature. A lot of this difficulty could be avoided if the Minister would consider a form of assent to be included in the nomination paper.
Mr. Tully: It seems to me that there is a mountain being made out of a molehill here. As far as Dáil elections are concerned the biggest danger would be in regard to withdrawal. A returning officer would have a bigger headache if there were some people sufficiently evil minded to attempt to damage a candidate's chances by withdrawal.
Mr. Tully: Probably. In the case of a candidate at a general election there is a sum of £100 involved. Some people speak as if £100 were a very minor matter. The danger of somebody being nominated against his will is not very great. In the case of local authority elections we all know that the town fool on numerous occasions has been nominated when there was no deposit. It could happen that a succession of people could be nominated without their knowledge. That is the only case where proof that the candidate did consent would be necessary.
Mr. Blaney: The Leader of the Opposition, Deputy Dillon, went along quite a bit with what I had hoped I had conveyed to the House as to what might be done by way of change to ensure that only nominations of persons who wished to go forward at an election were in fact accepted as valid nominations. The idea of sending a telegram or other such communication that the candidate was a prospective candidate is my idea, certainly, but not that it should be sent in order that it might be confirmed back. My idea was that as soon as a nomination  is accepted on behalf of a prospective candidate who is not available in person it should be communicated by telegram, letter or otherwise—it does not matter. If it can be done personally, even, by the registrar, that is all right. But, the notice having been sent out saying to this person: “You are now duly nominated and will be contesting and appearing on the ballot paper for this forthcoming election,” there I would propose that the matter ends unless the prospective candidate comes back and says, as he would if he had not given his consent: “I have not consented. I do not wish to stand. I want my name withdrawn.” That is really a slight correction that I would make to the Leader of the Opposition's view of what I have in mind.
Over and above that what I should also say is that a number of smaller, possibly still very important, things have been directly or indirectly raised as a result of this suggestion of mine that I should have another look at this matter for a particular reason but these other little matters add up to the point that if we can find it administratively possible, and I think we can, to extend the time for withdrawals, a number of difficulties, the smaller ones that have been mentioned as well as the bigger ones, would be got over by having a longer time within which to make withdrawals. All I am suggesting to the House for their prior notice is that having had this thought, I should like to look further at it. What I have suggested is what I believe may be the way of doing the job, if possible, and I would propose to come back on the Report Stage with a proposal on some such lines. In the meantime, if any Deputy has any other idea on this matter I should be glad to hear from him, apart altogether from anything that has been said in this debate.
Mr. Blaney: The point made by Deputy Corish is very fine and would seem to close the gaps right away but to create another one, that is, that if we prescribe a form of consent,  written or otherwise, we immediately create an insuperable difficulty in some cases where prospective candidates, probably sitting Deputies, may not be in the country or it may not be possible to get them back into the country in time to do any signing.
Mr. Blaney: I think it is true in regard to any other particular group of people that they do know what suits themselves best. If they do not see to it, I do not think there is anybody else going to worry about it.
Mr. Blaney: It is true that it is special treatment in a sense but it would be only to those who would be going forward. That is what I want to get. We want to prevent the situation that people will be nominated who do not wish to stand. In doing that we must be careful that we do not prevent people from going forward who would wish to stand. If we had to take a decision at any time as to which of the two things we most wished to avoid we would come down on the side of ensuring that everybody who might want to go forward would get there rather than excluding somebody who in fact should not be accepted. It may be that these things overlap slightly but, again, I would say to the House that it is my intention to go into this matter further. I would appreciate any further comments by Deputies between now and Report Stage and, as a guide, I have given my idea of what change I feel might be necessary and, if administratively feasible, I will probably come back on  Report Stage with the proposal that we do it somewhat on the lines I have indicated.
In so far as Deputy Jones is concerned, he raised on the Second Stage this matter about withdrawal. Regardless of what the number of hours that may be allowed for withdrawal, he was concerned about the ease with which somebody might withdraw a candidate's name and probably might withdraw it wrongfully. That really is what was concerning Deputy Jones on Second Reading. The only thing I can say is that it is part of this whole section that we have so far being talking about. I intend to see whether or not we can in fact meet to some degree the point of view put by Deputy Jones and to come with a fairly open mind again to the House with something that we can discuss at greater length. There are certain arguments for and against any change in the form we have here. Since we are likely to discuss this again at length, I do not think I should go into it any further at this moment.
Where a poll is to be taken at a Dáil election in a constituency, the returning officer shall send to every elector whose name in on the register of Dáil electors for the constituency and is not on the postal voters list a card (in this section referred to as a polling card) in the form specified by regulations made by the Minister informing him of his number (including polling district letter) on the register of Dáil electors and of the place at which he will be entitled to vote.
shall continue for such period, not being less than twelve hours, between the hours of 8.30 a.m. and 10.30 p.m. as may be fixed by the Minister by order, subject to the restriction that, in the case of a general election, he shall fix the same period for all constituencies.
Does the Minister contemplate under this subsection hours from 8.30 a.m. to 10.30 p.m.? It says not less than 12 hours, but it could be more than 12 hours. Is it the intention to extend it for more than 12 hours?
Mr. Blaney: I should not think it is the intention to extend much beyond 12 hours. We have, of course, experience of polling for 12½ hours under the existing law—that is, from 9 a.m. to 9.30 p.m. The whole idea of extending the hours is to give some little flexibility. If we felt 13 or 14 hours were an advantage we might make it 13 or 14 hours. The present intention, however, is not to extend it. This is designed to give more flexibility in regard to starting and finishing.
Mr. Tully: We are thinking now of the candidates. We should also think of the staff. The trouble is one does not find many people coming to vote early in the morning, except, perhaps, in the larger towns and cities where the office workers may avail of the facility. Opening at 8.30 in the morning is of no use to manual workers, all of whom start work at 8 o'clock. Only a very small section, therefore, will be facilitated by this earlier opening. It seems rather absurd to suggest that the polling station should remain open until 10 p.m. in the middle of winter— in the months of October or February —in the heart of the country where there is no proper lighting. The Minister should have another look at this. I can understand the desire for some flexibility but there is the danger that, having the provision there, we might wake up and find ourselves in the winter months with the polling stations open from 8.30 a.m. to 10.30 p.m. That would not be desirable.
Mr. M.J. O'Higgins: There is just one small point with regard to subsection (b) where it is stated the Minister shall fix the same period for all constituencies. Does that mean an identical period as to date as well as time? I have in mind some of the islands off the coast — the Minister's own constituency enters into the picture here—where special arrangements have to be made because of rough weather, and so on. I am wondering if the Minister is quite safe in this subsection. Will he be able to make whatever special arrangements may be necessary for these island voters?
Mr. Blaney: We deal with that in a later section, Section 34. With regard to Deputy Tully's point, the very fact that we can start earlier in the morning means that where it is desirable not to go on as late as 10.30 p.m., by starting at 8.30 in the morning we can stop at 9 or 9.30 p.m. This can be an advantage. It is there to be used advantageously, not to discourage people from coming. The whole idea is to encourage the greatest number to come.
Mr. M.J. O'Higgins: Am I right in thinking that it is the invariable practice that a polling clerk is appointed, in addition to the presiding officer, or are there some areas in which the presiding officer functions solely on his own?
Mr. Tully: Is it not generally accepted that an active politician should not be allowed to act as either presiding officer or polling clerk? If the candidate is to have the right to examine the list of presiding officers, surely the list of poll clerks should be examined?
Mr. Blaney: That must have been quite an arrangement. My experience in this matter in the elections in which I have participated is that all who participate in elections are of the same mind in trying to avoid any acrimonious discussion or undesirable incidents in regard to objections to people, after it becomes known they have been appointed. That has come about by having a little liaison with returning officers to ensure that if  objectionable people are likely to be appointed, again it will be quietly pointed out to the officials beforehand. In nine cases out of ten, the returning officer acts on this because he does not want any trouble and the more harmony he can achieve with all concerned, the more chance he has of carrying out his work effectively and efficiently.
Mr. Jones: I agree that is probably the best way out of it but we have all had experience—I have had at any rate—of canvassing with an opposition man and finding him acting as a poll clerk on the day of the election. The big trouble is to secure some definite arrangement that if the presiding officer is somebody who is non-Party, the poll clerk should be in the same position. We should not overlook the fact that very often the poll clerk may have been canvassing for somebody the day before or may have got a promise of support from somebody and that person, on seeing him in the booth, may vote other than he intended to vote, for fear the vote might be disclosed or something like that.
Mr. Blaney: I am in full sympathy with the Deputy in this matter and I shall give it further consideration before the Report Stage. We might even make provision that the list of all the personnel in the booth, presiding officer and poll clerks, should be made available.
Mr. M.J. O'Higgins: Would the Minister consider making it positive? “The returning officer shall appoint a presiding officer to preside at each polling station and also, if he thinks fit, a clerk or clerks....” As the Minister states, it is and always has been the invariable practice to appoint a polling clerk. I think, under existing legislation and under this section, the presiding officer if he wishes can delegate his functions, if he becomes indisposed or for some such reason, to the poll clerk who will then take over?
Mr. Blaney: The general rule is that the poll clerk is almost invariably  appointed as well as the presiding officer but there are instances, such as in convents and similar places, where a poll clerk is not required. Perhaps we should provide that there be the obligation to appoint in all cases and make the obligation subject to exceptions. Almost invariably, you will have a presiding officer and a poll clerk as a necessary part of the business and I do not see how you can get on without it.
Mr. Blaney: If the Deputy gives way, I shall explain. I had intended to mention this but the Deputy mentioned it first. I am not moving amendment No. 4, not because I do not think it reasonable but because I feel we must look into it even further with a view to its further improvement. I must see whether it is possible, in view of the administrative practice, for the returning officer in the hurried time at his disposal, to get it done properly or not. I think the matter can be further improved and I shall be raising it again on the Report Stage.
“( ) The returning officer or presiding officer may, and if so required on behalf of any candidate shall, administer to any voter at the time of his tendering his vote and not afterwards on oath (or in the case of any person who objects to taking an oath on the ground that he has no religious belief or that the taking of an oath is contrary to his religious belief) an affirmation in the following form:
‘I swear by Almighty God (or I do solemnly, sincerely and truly declare and affirm) that I am the same person as the person whose name appears as ..................... on the register of electors now in force for the constituency of ............................... and that I have not already voted at this election.’”
All down the years, as we know, the oath was always retained in the conduct of parliamentary elections. When the Committee on Electoral Law Reform considered this matter very exhaustively, it was decided to leave the oath there for the purpose of preventing personation. On the Second Reading, I mentioned this matter and the Minister said we were providing increased penalties. I then pointed out that while that was so, these would come after the fact. One of the greatest deterrents to the person who does not give much thought to the seriousness of what he is doing in coming into the polling station to personate a vote, is the fact that he is made to subscribe by way of oath or solemn affirmation that he is the person whose vote he claims and also that he has not voted already in the election.
It is well known that despite the meticulous care that may be given to the drafting of the voters lists, it will happen that a person's name appears in two different polling areas within the constituency. In modern times, it is quite feasible for a person to move from one area to another and to claim these votes. I am sure nobody wants to see that happen. The personation agents in the booth have a solemn duty to see that polling is carried out as laid down by the Oireachtas and that the result which comes from the election shall be genuinely the will of the voters. We should take every step to ensure that nothing untoward will occur.
No matter what penalties you may impose for an offence, there are always people prepared to take a chance. I believe that apart from monetary penalties, the one thing that will act as a deterrent of which there can be no evasion is the fact that these people  must submit, if challenged, to being sworn in regard to this matter. We feel very strongly that the Minister should not remove this provision which has been in the legislation since the electoral laws were first drafted and that he should not remove it now, particularly having regard to the fact that this matter was considered at length by the Joint Committee on Electoral Law.
The Minister said in his Second Reading speech that he had thoughts on this matter and that the Committee was not the only body that was giving thought to it. I am prepared to accept that but I am not prepared to accept that the report of the Committee which left in this form of oath and affirmation should not be implemented in the Bill and that we should take the oath, which has been so long in existence, out of our electoral law. It could happen that personation would take place and I believe that a solemn affirmation or oath is a greater deterrent than any monetary penalty imposed after the offence is proved. I believe it is much more desirable that we should use the deterrent in the first instance by imposing the obligation to affirm or take the oath.
Mr. A. Barry: I should like to support Deputy Jones. From my experience, I have found that the oath is a real deterrent and it prevents personation at the right time. I have known cases where would-be vote-stealers have run out of the booth when they were challenged and asked to swear. Most Irish people regard the act of taking an oath as something very grave. I believe we should put that protection at the right side of the vote, not after the vote has been cast. The Minister will be stepping backwards if he takes this provision out of the law.
Mr. Blaney: Nobody will dispute that the primary object of this whole Bill is to eliminate from our electoral law all unnecessary formalities, restrictive details and other obsolete provisions. I would say very strongly that this provision for an oath is an obsolete provision, that it is an unnecessary formality and that it is not a protection, but that it is a deterrent to  people who are genuinely entitled to vote and who are afraid to go to the polling station because they know that they were challenged and asked to take the oath on a previous occasion. There are many people in this country who would forego their votes rather than take a solemn oath in respect of something which, in their opinion, is not worth it.
Apart from that, we have increased the penalty for the offence of personation from £100 to £500 and, in addition, a possible six months in prison, either in addition to or in substitution for that. Surely no one will really be convinced that the person who would take a chance on a £500 fine or six months' imprisonment, or both, will be deterred because of the fact that he will be asked to take an oath? In addition, these people can dodge the taking of the actual oath by saying that they object to taking it on religious grounds.
Mr. Blaney: I have seen it happen in my constituency that certain personation agents blackguarded voters because they did not like to take an oath. That blackguarding has prevented and deterred people entitled to vote from going to the poll because they were afraid of being challenged to take the oath. A £500 fine or six months in gaol, or both, is surely a sufficient deterrent and, if brought to the notice of the public, will be the most effective deterrent against personation on anything like a scale that would cause a change in the results. If personation is known to exist to such an extent that it will bring about a result which should not be brought about, there can be a petition.
I can see no reason why we should continue with this oath, particularly when the people you want to deter are not going to be deterred by it and can sidestep it by pleading religious grounds for not taking it. It may well be asked why should we take it away in the general case and not take it away in the case of blind, incapacitated and illiterate voters. In the ordinary case identification can be  established. In so far as the blind, illiterate or incapacitated voter is concerned, only the voter himself can determine that. If there is a question of a person's blindness, illiteracy, or incapacity, that question can be determined by the person taking the oath. However, I would rather see even that going than that the oath should be continued as part of the section to which Deputy Jones proposes the amendment.
I believe it is something we should get rid of, that it serves no useful purpose, that it has not served that purpose in the past, and rather that it has deterred people who are entitled to vote from doing so because of whispers and rumours that if they present themselves at the polling booth, they will be challenged and asked to take the oath. That will continue to happen if we leave the oath in the section. The £500 fine with or without six months' imprisonment is the real answer to the problem.
Mr. Blaney: That is part of the general regulations which I will mention later, that these regulations be prominently displayed. This is the type of thing that could be prominently displayed at polling booths.
Mr. Tully: The Minister has been talking about two matters on which I do not agree with him. One is that persons have been intimidated from voting because they were afraid they would have to take an oath. Surely the presiding officer would not be doing his job if he allowed the personation agents to challenge everybody  going into the booth? The other question is that of the penalty. It has never been £100 or anything like it; it has always been the minimum. It has been pleaded that the poor fellow did not know or that he was carried away by enthusiasm. He usually gets away with a fine of £5 and I understand that on one occasion that £5 was made up to the person concerned by his Party. He did lose his right to vote for a while but that did not matter because there was no election in the intervening period.
It has always worked out that way. A man who steals another person's vote and then casts his own vote can get away with a fine of £5. The same thing can happen under the existing law. I am afraid I shall have to agree with Deputy Jones that the oath is the only deterrent as far as these smart fellows are concerned. It at least makes people declare they are the people referred to and does not allow the smart fellows to chance their arm. Unfortunately, the fellow I am talking about was not challenged.
Mr. M.J. O'Higgins: The Minister is making a mistake in his attitude with regard to this matter. He referred, as I understood him, to the person who used to regard the oath as a formality. I think most of us will agree that, in the normal Irish constituency, whether it be a city or a rural constituency, the ordinary Irish person does not regard the oath as a formality.
The Minister's description of how the powers that were there were misused in his constituency—he spoke of people blackguarded by being threatened they would have to take the oath and that, for that reason, they stayed away from the polls— emphasises the argument that those people and the average Irish person do not regard the taking of an oath as a formality. They regard it for what it is—calling on God to witness that what they are saying is true.
Most people who go into the polling booth, no matter how enthusiastic they are politically, no matter how misguided they are in their political enthusiasm, and maybe quite prepared  to do so—as they might regard it as part of the game or part of the war if you like, to go in and endeavour to personate another voter—will not do it if they must swear. They are brought up against it straight away and will stop doing it if there is any risk that they may have to take a false oath in order to cast the vote. I think most Deputies will assure the Minister that that is the reaction of the ordinary Irish voter.
Mr. M.J. O'Higgins: Yes; I think it is very small. There are two types of personated votes. There is what I regard with horror—as I think most people do—the person who steals another person's vote; the person who tries to get in early to take somebody else's vote so that that person cannot vote. That is the very worst type of personation. There is the other type— I think everyone who is in politics knocks across it during the course of some election—where a person who honestly wants to vote finds he will not be there on election day and tries to get somebody else to vote for him. That is equal, so far as the law is concerned: the penalty for either type is just the same. They are both offences.
It would be worth our while considering if it might not be possible to facilitate a person who, through illness or unavoidable absence on polling day, wants to get his vote cast. Arrangements might be made to allow that to be done. It would remove the temptation which exists in one of the types of personation I am talking about. The Minister should have another look at the proposition made by Deputy Jones. If the Minister discusses it with his Party, he will be surprised at the number of people there whom he will find agreeing with Deputy Jones's proposition.
Mr. Sherwin: So far as personation goes, I have a lot of experience. I am in a better position to talk about it than a Party man. A Party man cannot afford to talk too much or he might embarrass his friends. Being an Independent, I can spill the beans, as the saying is. I know for a fact that in the election of 1922, one-third of the votes cast were the result of personation. The boys went in on both sides. The battalions marched in in every area. That is admitted by all. For some years after the Civil War, both sides organised and marched in in groups, in large armies. I know; I was a member of Sinn Féin after the Civil War. I saw the group I was with. There were a dozen of them there for no purpose other than personation. That was the case with both sides. However, we agree it is not as bad as that now.
Mr. Sherwin: There is the person who cannot vote and wants to give his ticket to someone else. There is that danger—but it is not done just as nicely as that. All the local people, all the Fianna Fáil people, all the Labour people, know that a brother or a sister has gone to Connemara or across the water and a lot of them go to the local election office and hand in the ticket.
Mr. Sherwin: I know that it is done. I would say that from 50 to 100 must be handed into practically every Party headquarters in Ireland. I am an Independent. They even knock at my door. I got about a dozen. People said, for instance: “Johnny cannot vote; get someone to vote.” I have no Party to “stiff” for me. Otherwise, I probably would have “stiffed”. My argument is that there is only one way  to nullify an evil and that is to do it yourself. However, I was not in a position to do it. It is still done and always will be done. It should be an offence to attempt to personate.
The one thing that gives a person courage is the card. Around election time, I know that there are certain people—they are all members of the Party—who are professionals at this business. They turn up at election time and offer their services, as I know. The one thing they want is a card. Once they have the card, they go in with courage. They know the fellow sitting at the table will be afraid to challenge them. Do not forget that. What is to be done about that? It is the card. If they had no card, they would not chance their arm. It is the card which is important. The election agents are looking on. Their attitude is: “We might be brought to court.” What about the false card? Would the Minister think that over? If you can cope with that, you will end personation. Very few people will have a chance unless they have a card: remember that.
The Party agents might have their suspicions. They might ask a man to be sworn and that might act as a deterrent. The person will make excuses and refuse to be sworn and get out. There is that point of view. The agent is not too certain. He has a suspicion. He should have that right. He might be afraid to challenge a man in case he might be sued in the courts.
Here is a further point. Will the Minister do something about protecting agents because the one thing the agents are afraid of is that if they make a mistake, they might be sued in court. Protect the agents and deal with this problem so that fellows with cards belonging to other people will be afraid to come in and you will end personation. There is a little point in the oath. Where an agent is not too sure, he will risk demanding that an oath be taken. That would put the wind up the other fellow because he would not know what would be coming. There is a point in it.
Mr. Jones: When replying to this point the Minister said that when this  Committee sat, its object was to tidy up the legislation. I agree that was the object of the Committee. I was a member of that Committee and what was hoped was that a piece of legislation would be brought in which would be forward in its thinking and that the Bill which would result from the labours of this Committee would be an agreed measure and could be recommended as such. The weakness of the Minister's case in this regard is that while the Committee recognised the necessity for simplicity, for bringing the law up to date and for all the other provisions which ought to be made in regard to the conduct of elections, they still thought it was worth while to keep the provision in regard to the oath in the legislation.
We are all agreed that personation does not occur on a wide scale but that is all the more reason why we ought to ensure that it is lessened still further. The type of person who attempts this type of offence is somebody who is generally led to do it. He is not as clear thinking as he might be and is urged to do this. I have myself seen young people urged to go in and claim a vote because they were of the same name. I saw it happen in the last election but when challenged, these young people immediately recognised the seriousness of the offence and refused to be sworn on that occasion. It was a useful deterrent and the weakness of the Minister's argument can be seen in the fact that the Committee considered this provision ought to remain.
Mr. Blaney: I would suggest to Deputy Jones and to the House that a much more effective deterrent to personation is contained in the law which is proposed here and which envisages a large fine and a jail sentence. In future, if this Bill goes through as it is now, a personation agent can request the arrest of any person if that agent has reasonable grounds for believing there is personation.
Mr. Blaney: If the election agent in a polling station requests the arrest of a person seeking to get a ballot paper in order to cast a vote, having reasonable grounds for believing that that person is perpetrating personation, then that agent in asking for that arrest is covered.
Mr. Blaney: He is covered if he has reasonable grounds for believing there is personation, even if it is discovered afterwards that he was wrong. In addition, the returning officer and the presiding officer are fully covered in any of these matters. All these persons are covered by subsection (2) of Section 26 of the Prevention of Electoral Abuses Act, 1923, in respect of any action they may have had to take as a result of attempted personation or actual personation.
That type of deterrent is a much more readily understood one and much more justified, since it is a real deterrent. If the penalties are published prominently, as I hope they will be, in future in each polling station then I do not think we shall have any continuance of personation even on a small scale. I do agree that personation at present is on a small scale but, small though it is, I think it will gradually get smaller until it ultimately disappears altogether.
Deputy Tully mentioned that some man he knew was fined £5 and lost his vote for so many years. The losing of the vote is now gone by the board under these proposals. That £5 fine would be one-twentieth of the old maximum. If he were fined one-twentieth of the new maximum, then that would be £25. If instead of depriving him of his  vote for four or five years, it is decided to give him a few days in jail, it should be a great deterrent. Of course, if the court so decides, it can impose a sentence of up to six months. The House does not fully appreciate how severely these people would be dealt with when they feel this offence will continue and that the form of oath is a better deterrent than the fine and the possible jail sentence. I do not think the courts will treat this matter as lightly as has been suggested here. To my knowledge on the few occasions on which I have seen people prosecuted in my own constituency, they were dealt with pretty severely. They were fined and disqualified from voting. The disqualification does not arise now but I do feel the fine and the jail sentence is the real answer, provided the personation agents will continue to act in the future in the polling stations, because of their local knowledge of the people on the list of voters, in the manner in which they are there to operate. If they will challenge and point out these people where they have reasonable grounds for believing they are attempting personation, they can have such people arrested.
General MacEoin: That should be the maximum. When you are asking a personation agent to bring a person to justice, you are asking him to bring that person to justice for this very large sum and it is a very serious penalty. I do not know any personation agent who is just that tough in the country or anywhere else. If it were a reasonable fine, he would be covered. It is essential that the oath should be administered. I am supporting the amendment and the Minister should consider it. The Minister should allow the oath to be administered in order to protect the person from the penalty of £500 or six months. Because of the  oath, he will not personate. To charge him with attempting to personate will not be regarded as so serious an offence by the court. At least a defence can be made for that. In a case in which 18 people were involved in personation, the Attorney General said it was only a frivolous prank by youngsters.
The administration of the oath is important. The personation agent should be authorised to request the administration of the oath. In that way, he would not be running any risk of false arrest or imprisonment. As the law stands, he is not protected. The presiding officer, the tally clerk and all the officials are protected, but there is no protection for Deputy Carter's agent or my agent in the polling booth. If, in perfectly good faith, he gets a person arrested but an error is made, the defendant has a right of action against the personation agent. If the agent had the right to request the administration of the oath, it would help to prevent personation; the agent would be protected; and we would have a smoother working of the system than will be provided by the section. Since the Committee recommended that the oath be retained, I am astounded that the Minister should leave out that recommendation. I could understand his defending his action if the Committee had rejected that proposal. Instead, the Minister is imposing his opinion on theirs.
Mr. A. Barry: The Minister has undertaken there will be regulations about the publishing of notices. The official notice published by a returning officer in the newspapers is not sufficient. People do not read these things. The Minister should devise a notice of standard size and exhibit it close to every ballot box.
Mr. Sherwin: The agent can be “done up” afterwards by the friends of those whom he may accuse. The Minister will have to give this section further consideration, if he wants to stop personation. If the agent is not absolutely sure of protection, he will be afraid to challenge. He must be  protected, even if he makes a mistake. In that way, he will frighten people from taking a chance. If he is not protected, he is wasting his time trying to protect the electorate from this form of offence.
Mr. Blaney: Very relevant to this whole matter is subsection (1) of Section 26 of the Prevention of Electoral Abuses Act, 1923. This section will apply with equal force to the new conditions envisaged in the Bill before us as it has applied in the past. The section is:
Whenever any person is arrested under this Act in consequence of a charge made by a personation agent that such person had committed the offence of personation, and either such personation agent fails to appear before the District Justice and support such charge, or the District Justice acquits such person of having committed the offence and finds that the charge was made by the personation agent without reasonable or sufficient cause, the District Justice may, at the request of the person so charged but not otherwise, order the personation agent to pay to such person such sum not exceeding £20 as the District Justice shall think proper by way of damages, and such sum when duly paid shall be accepted by the person so charged in full satisfaction of all claims by him in respect of the said charge and his arrest and detention thereon.
Mr. M.J. O'Higgins: That is the case where the personation agent for a candidate wrongfully accuses someone. He is liable to be ordered to pay compensation up to a maximum of £20. That deals with only one aspect of the case mentioned by Deputy MacEoin. It still does not get us any further at all on the question of the person who is endeavouring to steal another person's vote and who will be prevented from doing that because he will not go against his conscience and take a false oath but who, if that restriction is removed, will be quite prepared  to go in and endeavour to steal another person's vote on behalf of his political Party out of misguided enthusiasm. That is the kernel of the problem which exists if the Minister persists in refusing to accept Deputy Jones's suggestion and to allow the position now obtaining to remain, where the oath is retained as part of the electoral law.
Mr. Jones: The Minister has contrasted the procedure in this section with that of the subsequent section, Section 27, where he retains the oath. He can find a good deal of sympathy for people who may be deterred from voting by reason of the fact they may be sworn. Has the Minister sympathy for the illiterate person who goes into a polling booth? Many people do not like to be branded to the countryside as illiterate. If somebody is to blackguard them, to use the Minister's phrase, by having them swear they are so illiterate they cannot vote, how does the Minister equate his sympathy for one side with the other? The Minister says you cannot measure a man's blindness, but you are going to make him swear he is so illiterate he cannot vote. The Minister can see his way to get rid of the oath in this section, but cannot see his way to get rid of it so far as the illiterate person is concerned. I cannot see the equality of the treatment the Minister is prepared to give.
Mr. Blaney: Look; if there were any other penalties appropriate to cases such as these, I would have opted for them. What I did say, and would like to repeat, is that in the case of a person's identity being in question, where he comes in and there is a question of whether he may be attempting personation or not, his identity can be established in fact. You cannot establish whether a person is so blind, so incapacitated or so illiterate that he cannot mark his own votes. The oath which it is proposed to retain here is the one measure taken where there is a grave doubt as to whether he would not be able to mark his votes. He would be asked to swear that he is not able to mark his paper. He has already submitted that he cannot. It is only when he is challenged that this oath would apply. There is no penalty by way of law, legal proceedings or court proceedings in his case as there is in the other cases. That is the difference of approach and that is why I have had this difference of approach, although, as I have said, I would prefer if we could wipe out the procedure of the oath in this second part and, indeed, I would suggest to the House that, if Deputies are of that mind, I would be prepared to come in on the next Stage with a proposal that it should be left out of that section altogether.
Mr. M.J. O'Higgins: Would the Minister consider this?—the Minister is making play with the fact that in Section 27 no penalty is set out. The Minister will agree with me that if a person is administered the oath under Section 27 and takes it and if it is still not believed that the position is as he swears it and if that can be proved, that person can be charged with perjury and suffer all the penalties applicable to a perjurer when convicted in court. So that, while penalties may not be set out in the section, that does not mean that there are not penalties there.
Secondly, as I have already pointed out to the Minister, without being prosy about it, there is no doubt that, particularly today, the badge of the free man is his right to vote. An illiterate person or blind person is entitled to vote if he is on the register  of electors. The Minister is saying to him: “If you claim to be blind or if you claim to be illiterate, no matter what badge of freedom you wear, you will not be allowed to vote unless you swear to it.”
Mr. M.J. O'Higgins: There is one other point in connection with the Minister's argument. The Minister argues that the reason for that is that a person's degree of blindness or illiteracy is not something that can be proved by anyone except the person himself, that he is the only person who knows exactly how blind or how illiterate he is.
Mr. Blaney: No; do not misquote me. I allege and suggest and submit that it is only those persons themselves who can determine whether they are so blind, so incapacitated or so illiterate as to be unable to mark their ballot papers properly. The Deputy is saying that I have said that they are the only people who can determine how blind, how incapacitated or how illiterate they are. That is not the same thing.
Mr. M.J. O'Higgins: But on the other hand, he says that, as regards a person's identity, that can be proved, if you like, externally, by proof other than the answering of the person to the questions which may be put to him under Section 26.
 I want to put it to the Minister that there are two different types of personation. There is the question of the person who is going in to vote in another person's name. There is also the question of a person who is registered as a voter, either twice in the same constituency or, in the case of a general election, in two or three different constituencies. It can happen. A person who is a business man in the city of Dublin and who is residing in Wicklow or Meath or Kildare will be on the register in the constituency where his office or business is in Dublin and he will be on the register for his home address in Wicklow, Kildare or Meath and it is an offence for him to vote twice. How can that be established except by the person himself and if he is not to be required to swear as to whether or not he has previously voted in the election, how else can it be established?
The Minister may say to me that you can ring up the booth in Donnybrook and find out if Mr. AB has voted there. You might, but is that any proof that AB in fact did vote, even though his name is crossed off the presiding officer's register? The only person who really knows and can give adequate evidence as to whether or not he has already voted in the election is the person who comes in to cast the vote and who, we suggest, should, if challenged, be required to swear to the position. The Minister says “no”, that it is enough simply to ask him the question. I think the Minister is all wrong.
While, as I said already, I believe the amount of personation that goes on at the moment is very little, if the Minister pushes this through the House, it will be an encouragement to the person who wants to personate votes in the future and this effort at personation may become rampant.
Mr. Sherwin: I should like to put one more question. The Minister is depending solely as a deterrent on a heavy fine and sentence. That is all right if that is applied but, if the boys know that it is not to be applied, then there is no deterrent at all. The fact remains that when a person is charged with personation, he is a member of  one Party or the other and if by chance he is a member of the Party in power, the Attorney General will have a vested interest in that person's personation and will just drop the charge, as has been done, and if it happens that there is a sentence, will reduce the sentence. Nothing will happen. Once it is known that the deterrent will not be applied, there is no deterrent at all.
Will the Minister ensure that there is a minimum sentence of a week in gaol? As long as it is known that there will be a sentence of seven days in Mountjoy, we will get some results. Will the Minister consider taking the question as to whether a charge is to be brought or not out of the hands of the Attorney General and provide that it will be solely a matter for an inspector or superintendent of the Garda? So long as the bringing of a charge rests with a person who has a vested interest in the person who personated, the whole thing fails.
A request made by an elector within four hours before the hour fixed for the closing of the poll to have his ballot paper marked for him under this Rule otherwise than by a companion may be refused by the presiding officer if, in his opinion, having regard to the number of electors then coming in to vote or likely to come in to vote before the close of the poll, his acceding to such request would interfere with the proper discharge of his duties or would unduly obstruct the voting of other electors.
This is something that should be brought to the notice of the electorate. The ordinary publication of a notice in the newspapers, or the statement by the presiding officer at the start of the poll that he does not intend to allow such voters to record their votes after a certain time, has in it an inherent danger that this may not be as widely known as it is desirable that it should be. I strongly urge the Minister to use every medium of publicity under this section—television, radio, and everything else—so that the electorate will be properly informed. The procedure in the various constituencies and in the various polling districts varies considerably. There is no uniformity. I ask the Minister to ensure that whatever regulations he makes, or instructions he issues to the registration authorities and to the  returning officers, are properly publicised well ahead of election time. That is very important in regard to those people who may have to have their votes marked or who may be of the types likely to be dealt with under this section. I am afraid that some voters may find themselves unaware of the facts. All possible media of communication and publication should be used to get the result desired.
Mr. Blaney: I think it means that certain of the disabilities that Deputy Jones and others were talking about from the point of view of voters who may suffer by having their votes stolen from them will not, in future, apply. Instead of pink ballot papers, which were counted only if there was a tie or a petition, they will in future be issued with ordinary ballot papers and these will be included in the normal count. The only point is that a note will be kept so that, if there should be a petition, the personator's paper will be easily identifiable.
Mr. Jones: There is just one minor point. I do not like the way the section commences with inverted commas and a small letter. I suggest the words “the phrase” might be inserted there. It looks rather slovenly at the moment.
Mr. Sherwin: I should like to draw the Minister's attention to the fact that in my area at the last election at least 300 papers were not stamped and it so happens that about 150 of them were mine. The Minister should ensure that the stamp is in the form of a die so that there will be some sort of mark, even if the stamp is defective. It is a shame that 300 voters should lose their votes. If they were aware of the situation, they would be entitled to sue someone for heavy damages. If the Minister wishes to investigate, he can do so.
An Leas-Cheann Comhairle: Amendment No. 6 in the name of the Minister has related to it a number of other amendments—Nos. 36, 38, 39, 40, 42 and 43 — and perhaps, by agreement, they could all be discussed together. They deal with the same subject — local, presidential, and other elections.
The purpose of these amendments is to ensure that the secrecy formula which was part and parcel of elections in the past will no longer have any place in our electoral procedure, that is, a little form that everybody associated with the election was called on to sign. I think the total number of polling stations in the country is around 7,000. We have a number of candidates in every constituency and each of them is entitled to have a personation agent and sub-agent. Before these appointments are really properly made, there must be attached to those appointment forms, a form of secrecy which must be filled in with the name of the person in question and signed by that person and countersigned by the presiding officer on the morning of the election, by a peace commissioner or some other authorised person. These forms run into thousands. The signatures and filling in waste a great deal of time. They seemed to have developed into being merely a wasteful formula in recent years particularly, serving no useful purpose, and are regarded by those participating in elections as just a nuisance. I think nobody will hold that the mere signing and filling of these forms adds anything to the secrecy of the ballot, which is what they were primarily intended to do.
Instead of these, I should like to have displayed in all polling stations and where counts are taking place a notice to the effect that persons gaining any information there should not impart it outside, or something to that effect, and that certain penalties could follow if they do. I do not know how the idea appeals to other members of the House but from my own experience and that of other Deputies with whom I discussed this in the past few days, I believe that the filling and signing of secrecy forms is just a nuisance.
Mr. Blaney: Nothing for a breach of what you sign you will not do. It has no teeth in it and doing away with it does not worsen the situation in any way. Rather is it a tidying up of a situation that gives everybody a lot of bother when they have something more useful to do, especially returning officers and their staffs.
Mr. Blaney: Candidates do not really count. It might be that a notice drawing attention to what one should not do if he is participating in the election would be sufficient. I have been turning over in my mind something which might help the printers not to lose this business. It is that on the blank side of the form of appointment of the personation agent and sub-agent a warning notice could be printed drawing their attention to the fact that they should not make known any knowledge that comes to them through the appointment as to how people voted or anything to do with the ballot.
Mr. Blaney: Not at all. It is merely this form which I mentioned and which we all signed and which everybody going in for returning officer or going to the count also signed. It does not mean anything.
Mr. Jones: Under the principal Act, these declarations of secrecy were made before the opening of the poll and generally what happened was that the presiding officer required those who were present to subscribe to these declarations. I thought when this was being considered, the Bill as drafted would allow the people who were to be in attendance at the stations on behalf of candidates, or anybody else  on coming into the station to sign the declaration. On reading the amendment — perhaps I misinterpret it — it seems that the Minister is reverting to the original procedure inasmuch as he seems to be removing subsection (3) by his amendment which would allow the phrase “before commencing to be so present” to stand, and only in that case could they sign the undertaking.
If the Minister assures me that personation agents may come into a booth representing a candidate at some later stage than the commencement of the poll and can exercise the right of an agent there on behalf of the candidate and that this is the intention in the Bill now, I shall be satisfied. It has been the practice — I have seen it done — that the presiding officer would not allow a personating agent to take part in the proceedings if he had not been there at the beginning to sign this form.
Mr. Blaney: That will not arise in future. In fact, if he is duly appointed and has signed the form of appointment as agent or sub-agent, he will be entitled in respect of the stations named in his appointment to go and come there and he will not be in any way intimidated, as it were, by the presiding officer refusing to regularise him by signing the form after a certain time.
Mr. M.J. O'Higgins: I think this is a proper amendment by the Minister. I am all in favour of simplicity, but in the subsection as drafted, Rule 52 of the Fifth Schedule of the principal Act was being amended in a particular way by putting in these words. Now the Minister in his amendment is taking them out again. Does that not re-erect, so to speak, the present position under the Fifth Schedule of the principal Act? If he takes out what is there in subsection (3) is it not leaving the position as it is at the moment?
Mr. Jones: Subsection (2) of this section deals with the death of a candidate who dies after the commencement of the poll. I should like to ask the Minister what provision is made for the return of a deposit to the relatives of such a candidate? Ordinarily, if the candidate's name remains on the ballot paper and he is included in the count, then unless he has secured one-third of the votes before elimination, his deposit is forfeited. The Minister should look into this and see what provision he intends to make about the return of the deposit of a candidate who dies before the commencement of the poll.
Mr. Sherwin: Section 36 says that the vote becomes invalid which does not bear the official stamp. Why? People go into a polling booth. They are handed a ballot paper and they mark it properly and, because of someone else's stupidity, they are denied the vote. In my constituency,  300 people had their votes made null and void because of someone else's stupidity. If they knew it, they would cause a riot and they would be entitled to do that. Surely the counterfoil would be there and it could be easily shown that these were not votes just shoved into the box. The returning officer must hand the paper to his clerk before it is handed to the voter and it ought to be the clerk's duty to see that it is properly stamped.
Mr. M.J. O'Higgins: I do not know if the Minister can do anything about this problem. It does create a most unfair situation from the point of view of the voter, if, through the fault of the official, the vote is disqualified. It does happen from time to time that because the official overlooks stamping the ballot paper or, as used to happen, he tries to stamp a number of them together and the stamp does not come through them all, the vote is lost. For one reason or another, ballot papers do slip through without the official stamp. That is not the fault of the voter. He has done his duty and when they come to count his vote, it has to be disqualified. I find it difficult to see what the Minister can do about it in this legislation, except by providing some kind of penalty which would attach to the presiding officer if a number of unstamped papers were found in boxes for which he was responsible.
Mr. Cunningham: Might I suggest that instead of the embossed stamp, which is not clear and visible to voters, we should have a coloured rubber stamp printed in ink for the ballot paper? The voter would see it clearly and if it was not there, he would know at a glance that the paper was invalid.
Mr. Rooney: The ordinary elector is not familiar with the ballot paper before he goes into the booth and possibly he may be a person who is voting for the first time. I cannot see that it would be possible to tutor electors and to warn them to be on the lookout  for either the coloured stamp or the official stamp. A remedy ought to be found for this problem. When the papers are taken out, one paper which may be properly marked but not properly stamped is disqualified while a paper which may be marked doubtfully can be considered again and, if the intention of the elector is clear, it is allowed. Although the voter has marked the unstamped paper properly, his vote cannot be counted.
Mr. Blaney: I appreciate fully that while the incidence of spoiled votes is generally as low as one per cent of our total vote, there is nothing more annoying than the idea that a paper properly marked, particularly if it is marked in favour of oneself is, through the fault of some paid official, declared invalid. The question is what can we do about it. The prime responsibility would seem to be that of the presiding officer and, where a number of such spoiled votes come from a particular polling station or stations, without any question, the first thing to be done is to ensure that the presiding officer is made aware of it and that the particular person in charge of that station or stations is not appointed again.
The second point is that the personation agents are also at fault in that if the papers are not being properly marked by the presiding officer, they must be somewhat asleep. Thirdly, there are the voters themselves who can check to ensure that the paper is a properly stamped paper before they put it into the box.
Mr. Blaney: I am not codding. I am talking of the realities of the situation. What are we going to do about it? The suggestion of an inked paper has been made and that, if it were not such a messy job, would go a good way to help. However, I am afraid that the inked stamp, particularly in a busy station, would probably do more harm than good. I am not sure of that. The other suggestion would be a perforated stamp.
Mr. Blaney: The trouble about a die stamp is that it might cut at the wrong place. It might, in fact, not be cut down at the point where it should be cut down. It might be cut in such a way as to impede the proper deciphering of the marking on the ballot paper.
I shall look into the question of whether we can introduce some new type of stamp, whether it be a perforation or a perforated stamp, or a die cut out or an inked stamp. This is a matter subject, in the first place, to the presiding officer's doing his job properly. It then falls to the personation agents to see he does it properly and, to a lesser degree, the voter who rushes in and gets his paper at the last minute who should see if there is a proper mark on it. We may be able to change the marks and to ensure that the marks are easily distinguishable in future. We may be able to ensure that the stamps will readily be seen by looking at them or feeling them, and so on.
We are making provision in this Bill to point out where the stamp should go. Whether or not that is of any avail, I do not know. However, so far, it is all we have felt it is possible for us to make in these proposals that might bring about a cure in this most annoying type of spoiled ballot we find at every election in every constituency. These are ballots that should never have been spoiled and are spoiled because the paid official on the job has not done his job properly. I shall try to see what we can do about it, but it has its difficulties. It is not just as simple as it seems, even if it is a vital matter.
Mr. A. Barry: I think we cannot put an end to this thing but we should close all the gaps we can. The Minister is considering publishing a notice in connection with personation to be hung over the ballot boxes. He should also put a very simple notice there,  instructing each voter to make certain that the returning officer has done what he should do in this regard — that the paper is stamped—or that there is a danger of the vote's being lost.
Mr. Sherwin: The Minister said that the voter ought to have a look at it. The voter does not know what he is looking at. For the Minister's information, several hundred votes were rejected because there was no stamp. We examined them all again. Here and there we managed to make out an impression—“Here is an impression”, and it is allowed. If the other boys saw it was their vote, they pointed it out and if it was someone else's vote, they said nothing. That sort of codology goes on. There ought to be a dyed impression. Some lazy individual who stamps about 20 at a time is the cause of it. The Minister should do something about it but do not expect the voter to see it.
Mr. M.J. O'Higgins: This has occurred to me in this connection before. I do not know if there are any inventors on the Minister's staff but if you had a device whereby the ballot was stamped as it was going into the ballot box, I think it would probably solve the difficulties In other words, if some device were fitted on the ballot box, into which the ballot had to go, it would probably ensure the safety of the vote.
Mr. Dillon: As a veteran of eleven general elections, my advice to the Minister is to adhere to the form of stamp at present in use. I have seen hundreds of thousands of votes counted. I have never seen any enduring dispute as to whether a vote was or was not stamped. I say deliberately “enduring dispute”. A number of votes are cast aside for examination by the returning officer and the candidates' agents. I have never seen an enduring quarrel as to whether or not a ballot paper was in fact stamped. We have all seen many papers that were inadvertently unstamped. You cannot provide against human error, no matter how careful you are. The number of actually unstamped papers was very small.
Mr. Dillon: There is no Deputy at present sitting in Dáil Éireann who has been through as many general elections as I have. You do see unstamped papers but to say that they have ever constituted any material element of the total poll is fantastic. I have known a case in which it appeared to me that one presiding officer apparently did not stamp any paper. It was in a small country booth. I have seen that happen.
Mr. Dillon: No matter what device you employ, on a rare occasion a situation can develop in which a person is made a presiding officer who ought never to have been given that responsibility but it does not happen commonly. No device employed will exclude every possibility of error. But normally, unless you have a presiding officer of the kind to which I have referred who manifestly should never have been there and who never knew his duties, you do not see any dispute about the vagueness of the printing on the existing ballot paper employing the present type of stamp.
Unless I were convinced some new procedure would prove practically error-proof, my advice to the Minister would be to stick to the stamp and procedure we at present employ. It is not perfect but I have heard no suggestion made here today that would improve on it. I think Deputy M.J. O'Higgins makes a suggestion which might be effective but not, I think, for the purpose of avoiding the possibility of improper votes being inserted in the ballot box. I do not think it is at the ballot box that you want the stamping machinery but at the point of issue of the ballot paper.
Mr. Dillon: I could imagine an effective machinery such as that envisaged by Deputy M.J. O'Higgins but the only way that could effectively  be employed to cancel the abuse is for a competent presiding officer effectively to stamp the paper. In my experience —in 99.6 or more of the ballot papers that I have seen counted in my time— the presiding officer has faithfully discharged that duty to the satisfaction of all reasonable persons participating in the count.
Mr. Sherwin: It is a very serious matter for a person to be deprived of his vote and to see his vote cast aside through no fault of his own. To the best of my memory, in one constituency a person won a seat by one vote. There is where the seriousness of the whole matter should come in. The Minister should ensure that each paper is stamped as it is being handed out and a person who stamps about 20 at a time does not get away with it. It is not enough to say that the official should not be employed again. That is no satisfaction for the loss of one's vote. The Minister should think over how this can be avoided. That is the point.
General MacEoin: I would suggest that the problem of the marking of the ballot paper could be got over if when the voting had concluded the presiding officer, the tally clerk and the personation agent certified that the total number of valid votes cast in that box was X. I cannot agree with my revered colleague here that the number of spoiled ballot papers through lack of marking is small. I have had experience in three different elections and in all three cases where the box was not marked—there were 300 votes in each of the boxes — it did affect the election of a Deputy: one person was in and another out. On examination, the Fine Gael, Labour and Fianna Fáil personation agents agreed that the total number of valid votes cast was 300. The whole lot were disqualified but, worse than that, instead of the box being impounded and the votes not counted, the votes were then thrown into the heap and counted. A great number of them got through and we know the result. It had such a serious result that the returning officer refused to give a recount when they were found. There was no legal  assessor there and the count had to be postponed until the next day.
Mr. Sherwin: Where the figure 1 is not placed on the ballot paper but only 2, 3, and so on, can the Minister make a case for that? The voter may have forgotten to put down the 1. Nevertheless he has shown his preference by putting down the other numbers.
Mr. M.J. O'Higgins: I have no objection to that but we all know of cases where this kind of situation is likely to arise when possibly neither the candidate nor his election agent, that is, in the strict sense the person who has been appointed as his election  agent, may be present. As a general rule, there are authorised agents present at the count with the permission of the returning officer on behalf of the various candidates? I have not thought this out but in the absence of the election agent, would it be going too far to allow one of the other agents to demand the recount?
Mr. Blaney: A sub-agent may seek only a recount of the immediately preceding count and I think the general idea here is that in the mean time the main agent or the candidate himself could be sought in case they wanted to go any further back and to request a bigger recount.
In page 31, line 43, to delete “If” and substitute “Nothing in the foregoing provisions of this paragraph shall make it obligatory on the returning officer to re-examine or recount the same parcel of papers more than once, but if”.
Mr. Blaney: I may bring forward  some further amendment on Report Stage. If I do, it will be merely to clarify the intention of what is there now. I am not satisfied that what appears to be the intention might in law be the intention.
Under Rule 30 inserted by Section 31, the returning officer must count the votes of the Dáil election within the constituency or, if the constituency lies partly in the county borough, within the constituency of the county borough. The purpose of amendments Nos. 10 and 11 is to remove the requirement that the Minister must be satisfied there is not within the constituency of the county borough any such place before he gives his consent. This requirement is unnecessarily restrictive and would make impossible the continuance of the counting arrangements which have operated in the Dublin city constituencies for a long time, that is, that the votes from six city constituencies are counted in the Bolton Street Technical School under one roof and under the direct supervision of the returning officer. If the votes were to be counted in each of the six constituencies, it would not be possible for the returning officer personally to supervise each count as he does at present. For that reason, the change sought in these amendments should commend itself to the House.
In subsection (1), page 32, lines 37 to 41, to delete “(which consent  shall not be given unless the Minister is satisfied that there is not, within the constituency, any place available and suitable for the counting of the votes).”
Mr. Dillon: Is there anywhere in the Bill, a definition section, which defines the electoral agent as distinct from an agent of the candidate? The Minister will observe in the amended form in which Section 39 is now being adopted we provide that a recount can be asked for by the candidate or by his election agent. In Section 41, it is provided:
The candidates may respectively appoint agents to attend the counting of the votes and the name and address of every agent so appointed shall be transmitted to the returning officer two clear days at least before the polling day. Not more than five agents shall be appointed by a candidate unless the returning officer otherwise permits.
Mr. Blaney: The law covering the actual agent would not be contained in this Bill but would be in Section 29 of the Prevention of Electoral Abuses Act, 1923. It is on that we would rely when talking about the appointment of the agent.
The purpose of this amendment is to incorporate in Section 52 of the Bill the requirement in Section 27 of the Presidential Election Act, 1937, that the presidential returning officer shall be responsible for the printing and procuring of a sufficient quantity of ballot papers. The change does not affect the existing law in any way. This is simply a clarifying amendment and nothing more.
Mr. Blaney: The purpose of these amendments is to repeal Sections 9  and 10 of the Prevention of Electoral Abuses Act, 1923, and the application of those sections to presidential elections and referenda. Section 9 provides that:
Any person who votes or induces or procures any person to vote at any election knowing that he or such person is prohibited, whether by this or any other Act, from voting at such elections, shall be guilty of an illegal practice.
The only persons prohibited from voting are those under 21, and voting while under 21 is made an offence under Sections 26, 51 and 70 of this Bill, which provides that a person who is not registered or who is not entitled to be registered may not vote at an election. A person under 21 is not entitled to be registered. Section 9 of the 1923 Act is therefore unnecessary. For that reason, we are moving this amendment to wipe it out.
Under the Bill, all incapacities for voting are being removed. These incapacities were part of the penalties for certain offences. I think we had one of them already. For example, conviction in respect of corrupt practices at an election; conviction of treason or felony, sentences of death, penal servitude or imprisonment with hard labour and so on. These are being dispensed with, along with many of the other incapacities we have mentioned. The remainder of Section 10 provides that every person who votes more than once at an election shall be guilty of an illegal practice. These are practices for which penalties are provided under Section 6. We have different views about that at the moment. The remainder of Section 10 provided that the court may in certain instances mitigate or remit any incapacities imposed by the Act by reason of a conviction. No incapacities may be  imposed for any offence as a result of the proposals in this Bill and the remainder of Section 10 is, like Section 9, unnecessary.
In page 42, lines 52 to 57, to delete “(which consent shall not be given unless the Minister is satisfied that there is not, within the constituency, any place available and suitable for the counting of the votes)”.
In page 43, line 32, to delete “If” and substitute “Nothing in the foregoing provisions of this paragraph shall make it obligatory on the presidential returning officer to re-examine or recount the same parcel of papers more than once, but if”
(b) in the case of an ordinary referendum, a statement of the proposal which is the subject of the referendum in the same terms as nearly as may be as such proposal is stated in the writing under the hand and seal of the President sent by him to the Taoiseach.”
This amendment will enable a statement of what a referendum is about to be incorporated on the polling cards. In other words, it will be for the guidance and information of voters as to what a referendum will be about and that will be put on the polling cards prior to the referendum.
Mr. Jones: In this amendment, the Minister is proposing that the subject matter of the referendum shall be set out for the information of the voter. Under Section 13 of this Bill, a provision is made for the setting up of a board in regard to the register of political Parties which will decide matters in regard to any dispute that may arise. We have had the experience in this House already of a dispute in regard to a matter which was being referred to the electors and the words which should be used to designate the matter being referred. In this section now, again, we should make use of such a board as is mentioned in Section 13 subsection (8) (b), which says that the board would consist of a judge of the High Court, the Chairman of Dáil Éireann or in his absence the Deputy  Chairman, the Chairman of Seanad Éireann or in his absence, the Deputy Chairman. Such a tribunal would give a fairer judgment, perhaps, on what is being referred to the electorate than a majority of this House pushing through their view as to what was being submitted. That would be particularly applicable in regard to subsection (2) (b) of the Minister's amendment. There may not be agreement in the House as to the proposal that is to be stated in writing but if such a tribunal were set up to deal with the matter, its findings would secure greater acceptance in so far as it would be an impartial tribunal. I would suggest that the Minister might consider adopting that procedure.
Mr. Blaney: There is a certain amount, probably, to be said for the view expressed by the Deputy in this matter but the board or tribunal it is suggested should be set up might not report in time to allow the referendum to be held and a new situation could develop before the report of the tribunal was obtained as to what should be stated in writing.
In the case of a constitutional referendum, the statement inserted on the polling card would be subject to the approval of this House before being put on the card or allowed to be circulated. That procedure is more likely to be successful in having something put to the people on the polling card than submission of the matter to a board or tribunal would be. Such a board or tribunal might not be so keenly concerned as this House would be about the urgency of the matter on which it was considered in the national interests to hold a referendum and to hold it quickly. To have to refer the matter to a body outside the House would probably be wasteful of time and there would be the danger that the procedure would be too slow in certain circumstances. I think the House is quite competent to deal with a matter such as this, if and when such cases arise and do not think they will arise very often.
Mr. Jones: The Minister may consider this a cumbersome method of procedure but it may equally prove a  cumbersome method of procedure where the register of political Parties is concerned. The Minister will recollect that there was a good deal of controversy here on a previous occasion in relation to the matter which was to be submitted to the electorate by way of referendum. The matter was debated for quite a long period here. Eventually an agreed form was found for submission to the electorate. Perhaps no arguments will arise but, if they do, I think we would be much more likely to get an agreed form to be put before the electorate from such a tribunal as we would by debating the matter here in this House. It might be debated at considerable length.
Mr. Blaney: The very fact that it is debated here serves a very useful purpose, a purpose which a tribunal could never serve. We start here hammering out what we feel should go on or should not go on. The fact that we discuss the matter here and get publicity for it is surely an excellent way of getting across to the people a fairly balanced view; really our discussion here can be an advantage rather than a disadvantage. It has that edge on a tribunal which would sit down privately and try to get something we would all more or less agree and to which none of us would agree in the finish. There is a great deal to be said for having any matter discussed openly here.
“... in the case of an ordinary referendum, a statement of the proposal which is the subject of the referendum in the same terms as nearly as may be as such proposal  is stated in the writing under the hand and seal of the President sent by him to the Taoiseach.”
I do not know how that is arrived at. Who will determine the statement of the proposal which is the subject of the referendum “in the same terms as nearly as may be”? Who will determine what is “as nearly as may be” to what was stated in the writing under the hand and seal of the President sent by him to the Taoiseach? I cannot clearly envisage what will happen. Does the President take the initiative in proposing a matter for a referendum? I understand this has reference to the power of the President to refer to referendum certain Acts passed by this House. Where he doubts their constitutionality, he can elect to send such matters to a referendum.
Mr. Blaney: First of all, although we have not utilised the ordinary referendum in the past, I take it the Deputy realises this is an ordinary referendum arising under Article 27 of the Constitution which provides:
A majority of the members of Seanad Éireann and not less than one-third of the members of Dáil Éireann may by a joint petition addressed to the President by them under this Article request the President to decline to sign and promulgate as a law any Bill to which this Article applies on the ground that the Bill contains a proposal of such national importance that the will of the people thereon ought to be ascertained.
That is the way in which we arrive at an ordinary referendum. Deputy Dillon asks who determines under clause (b) of subsection (2) “the same terms as nearly as may be”? That  would be the referendum returning officer, subject to the courts interpreting what they thought was right, if somebody challenged it.
Mr. Dillon: What happens is the President receives a representation from half the Seanad, supported by one-third of the Dáil, asking to refer the Bill to referendum on the ground that it is a matter of the gravest national importance. The President decides that he will accede to that request. He then writes under his hand and seal to the Taoiseach setting out in his letter the subject he wishes to be referred to the country in referendum. Presumably, he will say as to whether the Neutrality Bill passed by the Dáil and Seanad is accepted or rejected. That is what the President writes in his letter to the Taoiseach. Somebody is then charged with the responsibility of issuing to every voter a polling card which has upon it a statement of the proposal which is the subject of the referendum “in the same terms as nearly as may be as such proposal is stated in the writing under the hand and seal of the President sent by him to the Taoiseach”.
I can understand a statutory obligation imposing on the responsible officer the obligation to set out the words of the President's communication to the Taoiseach, leaving it to the individual voter to interpret them as best he may. Or I can understand a responsible body being established, consisting, if need be, of the judges of the Supreme Court, to determine the appropriate terms in which to propose the question that is to be resolved by referendum to the electors on the polling card, but I cannot understand the proposal that somebody, presumably the referendum presiding officer, is to indicate to the voter on the polling card not what the President wrote to the Taoiseach but what the returning officer will think is “as nearly as may be” what the President wrote to the Taoiseach.
The Minister ought to clarify that for us before we are asked to accept it because he will agree, I think, that in the employment of this most dangerous constitutional instrument, the referendum—I say that very deliberately;  it is a most dangerous instrument and one which can sap the foundations of a parliamentary demo-cracy—it is vitally important that the question to which the people are to be asked to provide an answer should be clear and explicit and that the answer should not be prejudiced by the terms in which the question is asked. Perhaps the Minister would, owing to the gravity of this question, now clarify for us clause (b).
Mr. Blaney: So far as I understand it, the referendum returning officer would appear to have the responsibility in this matter. However, in reading through that on which I have come to rely as indicating that he has such responsibility, I am not now quite so sure. I propose to have a further look at the particular section of the law we are relying on to see whether it is as watertight and foolproof as I thought it was. It may not be. There might also be the possibility that in order to overcome what could be a very long-drawn out legal interpretation of what may be sent by the President to the Taoiseach, this reference to the same terms “as nearly as may be” may have to be amended or deleted because I could even see that, if gone into in a very minute way, it could probably upset the whole procedure by virtue of the fact that the courts would say that it does not conform to the very strict law as laid down there. I think the better course in this case would be to take a look at both the powers regarding a referendum and the returning officer being the responsible person, subject always to the law courts in regard to interpretation in respect of what has to be put on the ballot paper or the voting cards. In that case, the best thing I think, is to go back on the fundamental issue and secondly, have a look at the phrasing of paragraph (b) of subsection (2).
Mr. Dillon: In as much as the Minister is reviewing this question generally, I want to put this point to him for his consideration: the critical act in connection with the ordinary referendum is the communication from the President to the Taoiseach. That is what  sets the machinery in motion. I suggest that the Oireachtas, being the legislative body, should be vigilant to ensure, if this, to my mind, highly undesirable court of appeal by way of referendum in our legislation is to be invoked, that there should be no question whatever of any ambiguity arising. The President is a constitutional official of the State but what is going to happen, supposing a two-thirds majority of this House having passed a law come to the conclusion that the form of the question proposed by the President for referendum does not faithfully reflect the true problem to the people in the referendum? What remedy has this House?
I suggest that it might be worth considering and possibly consulting our President about it—as I suppose it might be necessary to do—that the President after consultation with the Chief Justice and the President of the High Court would formulate the proposal in writing under his hand and seal and send it to the Taoiseach so that in so far as it was humanly possible, we could eliminate from the sphere of possibility, not to speak of probability, the danger of the President being brought into conflict with the Oireachtas and the Oireachtas believing that an appeal was being made to the people over its head through the referendum on ambiguous terms which in fact failed to do justice to the true intention of the Oireachtas.
Mr. Dillon: I am talking about referenda referred to in (b) which we are now discussing. There is a great danger in them because the whole basis of Parliamentary democracy, which is in my submission to the House an exquisite instrument of individual liberty and enduring freedom, is put in very real jeopardy if there is the standing claim to refer the decisions of Parliament to ad hoc referenda, thus by implication, abandoning the appropriate remedy of the free people, that is, if Parliament is not carrying out their will, to change the membership of Parliament. If an Executive are not carrying out the will of the people by the process of Parliamentary elections, you can change the Executive, but if you create a situation in which Parliament itself is reversed by a popular referendum, the whole authority of the Oireachtas appears to me to be greatly abridged and open to challenge.
We are the sovereign authority in the country and our obligation, when we come here as Deputies, is to do what our conscience directs us to do and not what any vested interest thinks it has a right to command us to do. Acting in that capacity, we are the sovereign authority for good or ill and there ought not to be any authority set up against us. These are important considerations.
Mr. Dillon: Here now is the very heresy. We can have government by mob rule or we can have government by Parliament. We can have legislation by calling the people together in the Phoenix Park and saying: “Those in favour, say ‘aye’; those against, say ‘no’.” The result is that you have government without discussion, legislation  without deliberation, Executive action without argument or challenge. The whole purpose of Parliamentary Government is that the Executive sit here in the presence of Parliament subject to question and to censure if the representatives of the people do not like what they are doing, and having arguments with them across the floor of the House. There is no question of putting simple issues which do not truly reflect the matter requiring consideration at all.
The Parliamentary Secretary to the Taoiseach falls into a very common error. There may be some sacrosanct quality in a reference by referendum to the people at large which is not inherent in the decisions of a demo-cratically-elected parliament but I regard the decisions of a democrati-cally-elected parliament to be much more helpful and sacrosanct than the decisions on any referendum can ever be. Decisions taken here are taken after full discussion and argument in which the Ceann Comhairle and Leas-Cheann Comhairle will insist on every Deputy having his right to speak and be heard. These are decisions which civilised men and women can live under, whether they like them or not, because they know they have means at their disposal to get them corrected without having to resort to violence, by climbing up on their barrel at the corner of the street and advocating the election of themselves or somebody else to replace Deputies who they believe have failed them in the Parliament of the country.
When I come to deal with the type of referenda referred to in paragraph (b), I want to be certain that the ordinary and sacrosanct deliberations of this House shall not be lightly set aside by referenda proposed by our people in deceptively simple terms. I suggest that we must do all in our power now to determine that if subjects are to be decided by ordinary referenda as defined by the context of this Bill, those subjects will be presented to the people in as objective a manner as it is possible to do it.
In as much as these referenda must derive from some conflict between the  President and the Oireachtas, I suggest that in putting the question to the electorate, the President should be sustained by the advice of the two heads of the judiciary, the Chief Justice and the President of the High Court, in formulating the question that is to be proposed to the people. In any case, where fault may have to be found with what is drafted, it will be a fault which nobody can attribute to the person of the President because it will be universally known that the question was not formulated by the President alone but by him in consultation with and on the advice of the Chief Justice and the President of the High Court.
Mr. Leneghan: I think most members of this House know that I hate the sight of Deputy Dillon and that it is unlikely that I will normally agree with him. On this occasion, even though I would not vote for his proposals, I must agree with him. There is a great deal of common sense in what he has said. We have seen an example of this thing in France where Parliament, as a result of various types of referenda, has been practically wiped out. It is important that it should be made clear that under no circumstances shall the elected representatives of our people lose their power to legislate. It should be entirely as a last resort that under any circumstances our powers are taken from us. If we are to have referenda, it must be made clear to the people what the issue is to be.
If we come in here and hold a debate, everybody has the right to get up and make his views clear but in the case of a referendum, the question can be completely misrepresented and the opposite result to what was expected achieved. It is perfectly clear that that can happen. People can completely and entirely misrepresent the issue. A referendum is the last thing which should be held and if it is to be held, there should be no ambiguity in one way or the other as to what the issue before the people is. We can have one Party or another in this House completely misrepresenting an issue and, therefore, before this matter goes any further, it should be taken back  and very carefully considered because it is a matter of great importance.
Mr. Blaney: I have already indicated that in view of certain doubts cast on important parts of this amendment, I would like to re-examine certain aspects and clarify the situation, if possible. If that is not possible, I would suitably amend the form of the amendment.
that officer may authorise him in writing to vote at a specified other polling station in that constituency, and the polling station so specified shall, for the purpose of Rule 8 of the First Schedule to the Principal Act be deemed to be the polling station allotted to him.”
This amendment corresponds to Section 30 of the 1959 Referendum (Amendment) Act. The purpose of it is to make provision to enable persons to  vote who are prevented from voting in their own districts because they are employed in the actual voting processes.
(b) the proposal which is the subject of the referendum shall be stated on the ballot paper by citing by its short title the Bill containing such proposal passed or deemed to have been passed by both Houses of the Oireachtas.
(a) in the case of a ballot paper in respect of one referendum, it shall contain a statement of the proposal which is the subject of the referendum in the  same terms as nearly as may be as such proposal is stated in the writing under the hand and seal of the President sent by him to the Taoiseach, and
(b) in the case of a ballot paper in respect of two or more referenda having the same polling day, it shall contain, in respect of each referendum, a statement of the proposal which is the subject of the referendum in the same terms as nearly as may be as such proposal is stated in the writing under the hand and seal of the President sent by him to the Taoiseach.
(3) In applying, in the case of a constitutional referendum, paragraph (1) of Rule 3 of the First Schedule to the Principal Act, the following subparagraph shall be substituted for subparagraph (b) of that paragraph;
(4) Subject to the next subsection, where the same day is the polling day at two or more ordinary referenda, separate ballot papers shall not be issued, but every ballot paper shall be so framed that the voter is able to record a separate vote in respect of each referendum.
(5) Where the same day is the polling day at two or more ordinary referenda and the Minister is of opinion that it is for any reason impracticable or inexpedient to comply with the foregoing subsection—
An Leas-Cheann Comhairle: There are two other related amendments— Nos. 41 and 45. Perhaps, by agreement, they could be taken together— Nos. 23, 41 and 45? Amendment No. 41 is consequential, I understand, and No. 45 is related.
Mr. Blaney: Section 71 of this Bill provides for the form of a ballot paper at a constitutional referendum and includes certain changes, such as the provision of a special space for the official mark on the ballot paper and the counterfoil, for the voter's number on the register. The purpose of amendment No. 23 is to enable corresponding changes to be made in the ballot papers for ordinary referenda. This amendment, No. 23, in fact consolidates the provisions of Section 15 of the Referendum Act, 1942, and Section 1 of the Referendum (Amendment) Act, 1959. Amendment No. 41 provides for the repeal of Section 15 of the 1942 Act which will no longer be necessary and amendment No. 45 prescribes the forms of ballot papers at both constitutional and ordinary referenda.
Mr. Dillon: I am still at a loss to understand how amendment No. 23 is linked up with amendment No. 45 which deals with the Fourth Schedule. The Fourth Schedule deals with the form of ballot papers at referenda. How do you link up these two?
Mr. Blaney: Amendment No. 23 has to do with ballot papers for ordinary referenda. Amendment No. 45 then prescribes the forms of ballot papers at both constitutional and ordinary referenda. That is really the point.
Mr. Dillon: Is there provision in this Bill for the contingency envisaged in subsection (4), that is, where the returning officer is unable to conduct the referendum owing to illness. Does the duty devolve on somebody else? You envisage in subsection (4) the possibility of the returning officer being unable to conduct the referendum as a result of illness. Does the duty automatically devolve on somebody else?
In subsection (2), page 51, lines 15 to 18, to delete “(which consent shall not be given unless the Minister is satisfied that there is not, within the constituency, any place available and suitable for the counting of the votes)”.
Mr. Blaney: The section itself provides that the count of the referendum votes in each constituency shall continue until 11 p.m. instead of only until 7 p.m. Further, the referendum returning officer will be required to send a copy of the certificate and the result of the referendum when it is confirmed to the President as well as to the Taoiseach. Those are two of the intentions of this section.
Mr. Sherwin: I should like the Minister to know that some local representatives do a lot of hard work, and they do not get as much as a stamp for their work. There are lots of rumours that they get free rates and so on. That is not true. We do not get a bean. Most of the work is done by a few. Although our committees in Dublin Corporation number 18, our quorum is only about three because if it were any more, we would not be able to hold a meeting. The Minister ought to give some little consideration or some inducement to those who attend. He cannot expect the people to spend a whole afternoon of their time on local authority work for nothing.
“(b) The Council may, in pursuance of a resolution passed by the Council and for the passing of which not less than two-thirds of the members of the Council voted, apply to the Minister for an order made in accordance with subsection (5) of section 88 of the Electoral Act, 1963, dividing the Borough into two or more electoral areas.
(c) An order under this section shall appoint in such manner as most nearly secures equal representation on the basis of population the number of members of the Council to be elected at a Borough election for each of the electoral areas created by such order.”
In Section 88 as the Minister has drafted it, he is proposing to take power to form various electoral districts within the cities of Dublin, Cork, Limerick and Waterford without reference to the elected representatives of the people in those areas. I am proposing that regard should be had to the provisions of subsection (2) of Section 7 of the Limerick City Management Act, whereby the city is one electoral area, Section 6 of the Waterford City Management Act whereby the city is one electoral area and Section 4 of the Cork City Management Act, 1941, whereby the city is one electoral division. It was open to the elected representatives of the council in these areas to request the Minister to make the changes if they so desired. On Second Reading I said we ought to be very careful in the Oireachtas in passing legislation not alone to give effect to the popular will but to be seen to give effect to the popular will. We must jealously guard the democratic right of the elected representatives in these council areas to seek from the Minister an order setting up the ward  system, if they so decide. Until such time as the councillors request that, the Minister should not take unto himself the right to create within those areas different electoral divisions from those existing at present. In certain areas, there have been difficulties because of the large number of candidates standing. There may be confusion inasmuch as the voters may not proceed to put a mark opposite all the names of the candidates appearing on the ballot paper.
In taking the decision envisaged in this section, the Minister would create areas within those cities corresponding to the old ward system. He is taking power to do that without being requested to do so by the people elected by the voters in those areas. All I want to ensure is that the rights of the councillors democratically elected by the people in those areas will not be taken from them, and that it is they, and they alone, who have the right to request the Minister to make this change.
This is a right we have often referred to here. It is a right put in jeopardy in other parts of this country and in areas outside this country. The democratic process we profess to follow here ought to ensure that nothing will be passed in the Legislature which will in any way take away that right from the locally elected people. I seek to have that preserved by offering this amendment to the House.
Mr. Blaney: Deputy Jones seems to have overlooked or conveniently forgotten that since 1941 the Minister for Local Government has had the very power it is suggested here he should be denied in respect of Limerick, Cork and Waterford. Apart from these three cities, he has had that power in respect of every county council and every urban district in Ireland since 1941. This therefore is merely an effort to bring those three cities into line with the rest of the country. It is no more and no less than that.
The dangers Deputy Jones sees are not real in view of the fact that we have had this power since 1941. I am aware of nothing happening to justify  the fears the Deputy has. There does not seem to be any great reason why these three cities should not be brought into line with the country generally.
Let us have a look at the situation in Cork city when they fought a local election as one constituency with everybody up in a free-for all. We had 72 candidates, 63 counts and five days' hard work for a big staff, not to mention the severe strain on the nerves of the candidates. We had 72 names on the ballot paper, out of which 21 were to be selected. The idea of having 63 counts, or even 20 or 30 counts, does not help to bring about the kind of result the people intend. The idea that that is possible under this system is fantastic.
Mr. Blaney: I could not tell you. Cork is the most extreme example of the situation, but even in the city of Waterford, we had in the 1960 election 41 candidates for 15 seats. The whole 41 were on one ballot paper. There were 34 counts in order to find 15 councillors from the free-for-all.
Mr. Blaney: Why should we not declare every county council election an open forum and let all 25 or 28 councillors go up for the whole county? Surely if the system we have in relation to the county councils and urban areas for all these years makes sense, it should make sense in these three cities as well? The present system in those cities is absolutely crying out for revision.
I think the fears expressed by Deputy Jones are not well grounded. The fact that the Minister for Local Government has had this power for all these years and that it has not been abused by any Minister should bring about a change of mind on the Deputy's part in regard to opposing the idea of giving power to the Minister to make these three cities conform with the general law. It is not something new or radical. There is nothing hidden behind it. It is merely conforming with what has been there for the past 22 years.
Mr. Jones: In contrasting the procedure in county council elections and the procedure contemplated here, the Minister is over-simplifying the matter. All the time the county councils have exercised their right of producing a polling scheme and submitting it to the Minister. In this instance, however, the Minister is proposing to take a power which the Council have not requested. All I want is that the elected council should be allowed to request the Minister to do this. The county councils make polling schemes and submit them for approval. All I am asking is that the rights of the councils in Limerick, Cork and Waterford should be equally preserved. If they so desire, they can make a request to the Minister to divide up the city as they require it.
Mr. Blaney: I think the Deputy has in some way misinterpreted the position. He mentioned a polling scheme coming up from counties but that is different from what he has in mind. It is entirely different because a polling scheme in that form has nothing whatever to do with the division of a county into electoral areas. For instance, any county may have its existing electoral areas rearranged by the Minister for Local Government without any request whatsoever from the local body in that county. Likewise, urban council districts, again, can and may be divided, rearranged and so forth by the Minister for Local Government without any request from the local council. Even Dublin city and the boundaries of its various divisions can and may be divided by the Minister for Local Government without any representations from the corporation in the City Hall to the effect that it should be done.
Mr. Blaney: What is the Deputy talking about? Where is the gerrymandering in such a scheme as would give cause for worry? If it was done, was it done in my time, in these local areas? If it was not done during my time, why did our predecessors not make right any gerrymandering that  was done when they were there? I do not think there is any substantiation for any allegation of gerrymandering.
Mr. Dillon: I hope he will come in. Deputy Jones's point is only this: the present position exists in Cork, Waterford and Limerick. The Minister thinks, looking at the picture of the country as a whole, that it is a rational and sensible thing to bring Cork, Limerick and Waterford into line with Dublin for its electoral procedure because, looking at it from the point of view of the Custom House or Donegal, it seems to him extremely inconvenient to have long lists of candidates and everybody elected as a candidate at large. That is the way it may seem to him but it may not seem so to the people locally. Surely it is a sensible suggestion to take power here, at the request of the existing local authority, to change the electoral procedure if the local people want it changed? If they do not, if they prefer this system of electing their councillors and aldermen at large, why should we interfere?
Manifestly, the people of Dublin prefer to elect them in wards. I have no deep conviction one way or the other. Where you have a relatively small city, there is a great deal to be said for electing the aldermen and councillors at large. If the city reaches a size which makes the mechanical problem of counting the votes unduly onerous, all reasonable men will combine to divide the city up into suitable subdivisions to facilitate the process of conducting the count but they will sacrifice something, or it could well be that they might sacrifice something, which is at present valuable.
At present we do not have in this country the very intensive organisation of wards in local elections but anyone who has any experience of residence in an American city knows the astonishingly powerful organisation  that is built on so small a political unit as a municipal ward. I admit at once the situation obtaining in American cities represents one extreme but I am not prepared to admit that electing councillors and aldermen at large in a small city or a relatively small city is the other extreme. In a city like Waterford and Limerick, it may very well be the ideal method.
I should be inclined to feel with the Minister for Local Government that when a city had reached the size of Cork, if they were prudent, the local authority would reach the conclusion that the time had come to ask the Minister to approve a scheme of wards there, on the ground that the city had grown too big to elect councillors and aldermen at large. I am not at all sure, if living in Waterford or Limerick, I would take a similar view. I think that is a reasonable approach and that the Minister is going beyond where it is necessary for the Oireachtas to go in interfering with the local affairs of the people of such cities as Cork, Waterford and Limerick, if he arrogates to himself, not only the ultimate decision, but the initiative in such a matter. Deputy Jones thinks, and I agree with him, that the appropriate provision here is that he should take power, at the request of the local authority, to divide the city into wards but leaving the situation that unless and until he is moved by the local authority to do so, he will leave things as they are.
That may sound utterly unreasonable to the Minister but I want to put it to him that this is an Electoral Bill and, hopping and trotting, by way of Committee and discussion here, it has reached a pretty reasonable degree of virtual unanimous consent amongst us. Electoral law is always a touchy matter. I suggest to the Minister that the difference between his position and that of Deputy Jones is very narrow. This is not the last Electoral Bill we will ever pass but I suggest to him that he may with propriety leave the  initiative in this matter to the cities concerned, with the result, I believe, that he will get a request from Cork and he probably will not from Waterford or Limerick. If he does, if that is the way it turns out, then the only real problem will be resolved at the request of the local people and the other two cities will comfortably carry on on their present basis, it may be for years and it might be forever.
Mr. Sherwin: I do not agree with Deputy Dillon, because his suggestion does not give the small man a chance. If the small man who is known only in his own locality has to fight in a large area, he is severely handicapped. Those already in have the advantage. It would be wrong to leave it to those who are already in position to decide as to how others should get a chance of election. If it is left to people who have a vested interest, naturally, they will look after their own needs first. Imagine the position if Dublin were one constituency. In that case only people with money, only political Parties, could fight elections. A poor man could not fight an election. The poor local man must be given a chance. Otherwise, the machine will always be in possession.
Mr. Coughlan: The present situation has prevailed in the city of Limerick for a long time and no voice was ever raised against the procedure up to now. It is a good thing that we should have so many runners for so many seats in any local authority. It is a healthy sign that the people are anxious about affairs. In Limerick, there are 17 seats on the council. The area of Limerick city does not lend itself to divisions of the kind there are in Dublin and that perhaps one may expect in Cork.
|Last Updated: 27/02/2015 16:00:29||Page of 49|