5th October 2006
Dáil Debate Vol. 624 No. 5Electoral (Amendment) Bill 2006: Order for Second Stage.
Bill entitled an Act to provide for postal voting at elections and referendums by persons who are imprisoned in the State and who are eligible to vote at elections and referendums; to amend the Presidential Elections Act 1993, the European Parliament Elections Act 1997 and certain other enactments and to provide for related matters
Minister for the Environment, Heritage and Local Government (Mr. Roche): I move: "That Second Stage be taken now."
Question put and agreed to.
Electoral (Amendment) Bill 2006: Second Stage.
Minister for the Environment, Heritage and Local Government (Mr. Roche): I move: "That the Bill be now read a Second Time."
The main purpose of the Bill is to provide specific arrangements for voting by prisoners. In Ireland, there is no legal prohibition on voting by prisoners, once they meet the standard qualifying criteria under electoral law which apply on a general basis. While a person in legal custody may be registered as an elector under section 11(5) of the Electoral Act 1992, he or she is deemed to be ordinarily resident in the place where he or she would have been residing but for his or her detention. The law provides no specific mechanism for prisoners who are on the electoral register at such places to exercise their franchise. In other words, they cannot get out for the day to go home to cast their votes.
The Bill will modernise existing electoral law in this area and provide a practical framework for prisoners to vote in future elections and referenda. It will bring certainty to Ireland's position in meeting fully our obligations under the relevant provisions of the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms. This follows a judgment of the European Court of Human Rights last year in a case taken by a UK prisoner who challenged successfully a prohibition on voting. While the legal position in the UK differs significantly from that in this country, in light of the judgment it is appropriate, timely and prudent to implement new arrangements to give practical effect to prisoner voting in Ireland.
Postal voting in Ireland is provided in respect of a number of specific categories: persons living at home who are unable to go to a polling station to vote because of a physical illness or physical disability; persons whose occupation is likely to prevent them from voting at their local polling station and full-time students registered at home who are living elsewhere while attending a college in the State; whole-time members of the Defence Forces; Irish diplomats and their spouses; and members of the Garda. Extension of postal voting arrangements to prisoners is the most appropriate way to proceed and the Bill provides accordingly. Postal voting procedures are well established. They are simple, flexible and inexpensive and registration authorities and returning officers are familiar with them.
In broad terms, the legislation provides for applications by prisoners for entry in the postal voters list and, if necessary, in the supplement to the postal voters list and in the supplement to the register itself. It also sets out the detailed procedures for prisoner voting. Under the Bill, prisoners will continue to be registered at their home address and, for voting purposes, will be deemed to be ordinarily resident in their home constituency. This will allow prisoners to vote for candidates in their own locality. It is not intended that a prison location will be used for constituency purposes. The new arrangements will apply to prisoners who can establish that they were ordinarily resident in the State prior to being imprisoned. Under electoral law, citizenship determines the type of elections at which people can vote and this will apply in the same way to people who are in prison. The scheme of postal voting contained in the Bill is modelled largely on existing postal voting procedures and mirrors most closely those used for the occupation and student category of postal voter. The procedures have been modified, where necessary, to take account of prisoner circumstances, for example, in the witnessing of signatures. A limited number of provisions contain miscellaneous amendments to electoral law.
I turn now to the detail of the Bill. The first substantive provision is section 2, which requires the local registration authority to enter in the postal voters list the name of an elector who applies for entry and who satisfies the authority that his or her detention is such that he or she would be unlikely to be able to vote in person on polling day. Applications must be made not later than the last date for making claims for correction in the draft register - 25 November. This is the same cut-off point for all applicants wishing to register. The section provides that a person seeking registration under the terms of the Bill will be registered at the address where he or she would be ordinarily resident were it not for his or her detention. It is not proposed that a prison location would be used for constituency purposes. There will be no question, therefore, of an election in a particular constituency being disproportionately influenced simply by the location of a prison within its boundaries. As with all electoral codes, determination of ordinary residence will be a matter for the registration authorities.
Section 3 sets out a procedure for applying for entry on the postal voters list. It is based on the existing application provisions for the occupation and student categories of postal voter. The application must be in a form directed by the Minister and must be accompanied by a certificate from the relevant prison official. The certificate must be signed by the official to verify that the applicant is a prisoner for the purposes of inclusion in the postal voters list. The relevant official must arrange for the documents to be sent to the registration authority via the normal prison postal system.
Section 4 requires the applicant to provide the registration authority with whatever documentation or information they may request to enable the authority to determine their eligibility. Under this provision, the applicant has at least seven days in which to submit the necessary information before the application is deemed to be withdrawn. The intent of this section is that the registration authority is satisfied that the circumstances of the applicant's detention are in accordance with the qualification criteria set out in the legislation and it will be a matter for them to take steps that may be necessary to come to a decision on the matter. This is similar to existing provisions in electoral law.
Section 5 requires a registration authority to give public notice each year within 14 days before the qualifying date for registration purposes - 1 September - of the category of electors eligible for inclusion on the postal voters list, the manner in which and the time before which they can apply, and the time and place at which application forms may be obtained. This must include every prison located in the authority's area and forms must be supplied free of charge.
Section 6 sets out the procedures to be followed by the registration authority following examination of the application, including the granting or refusal of an application and notification of the decision. Applications cannot be accepted by a registration authority after 25 November. There is, however, scope to vary this deadline by way of ministerial order for the first year in which the new arrangements for prisoners come into operation. This flexibility in the transitional period will facilitate prisoners who wish to vote at any election or referendum which may be held in the period immediately following enactment. There is also provision for an appeal to the county registrar in the event of an application for entry in the postal voters list being refused by a registration authority. This is based on similar provisions for other categories of postal voters.
Section 7 sets out the procedures for voting by prisoners entered in the postal voters list. It applies to prisoners the existing procedures which operate for other categories of postal voters, with appropriate modifications. Generally, the procedures include matters such as the issuing of ballot papers and other appropriate documentation to prisoners by post, completion of the declaration of identity and of ballot papers in secret, and instructions and envelopes for the proper return of ballot papers and supporting documentation to the returning officer. In this regard, the relevant official must arrange for the documents to be sent to the returning officer via the normal prison postal system. Section 7(2) ensures that these modifications in regard to postal voting in Dáil elections will also apply to presidential elections and referenda.
Separate rules in European Parliament and local elections law govern postal voting, although they are virtually identical to the Dáil electoral law. Sections 8 and 9 amend these codes by inserting provisions corresponding to those in section 7, thereby ensuring consistency across the electoral codes in the new arrangements.
Section 10 amends section 15A of the Electoral Act 1992 and inserts a new provision to allow a prisoner who is not on the current postal voters list to make application for inclusion on the supplement to the list. This amendment will allow the same procedures to be used by prisoners when applying for entry in the supplement to the postal voters list as apply to applications for entry in the postal voters list itself, but with appropriate modifications. It will assist an elector who may not have been registered, nor even in custody, and therefore not eligible for inclusion on the postal voters list, by the specified date of 25 November - in other words, if he or she was incarcerated after that date.
Section 11 amends Rule 14A of the Second Schedule to the Electoral Act 1992. Any person who wishes to be included on a postal voters list must already be on the register of electors. This provision establishes specific procedures for a prisoner who is not already on the register of electors to apply for inclusion in the supplement to the register and therefore qualify for inclusion on the postal voters list.
Sections 12 and 13 amend the principal legislation relating to Seanad elections and are similar in content. They implement minor procedural adjustments to take account of standard prison postal arrangements. In this regard, the onus is placed on the relevant officer of the prison, rather than the prisoner, to arrange for the voting documentation to be sent to the returning officer through the normal prison postal system. The provisions are necessary to facilitate voting by prisoners who may be eligible to vote in Seanad elections, whether for university or panel members.
Section 14 takes account of the particular circumstances that a prisoner, or former prisoner, may be in when an election is called. It enables a prisoner to have his or her name deleted from the postal voters list; for example, this would apply if he or she was released from prison. Once the registration authority is notified in writing of this on or before the second day after the dissolution of the Dáil at a general election, or on or before the second day after a polling day order is made at all other elections or referenda, the name may be deleted from the postal voters list allowing the elector to vote in person at a polling station in the normal way.
Where a prisoner is released but is still on the postal voters list coming up to an election, and the relevant prison official of the prison returns the ballot paper documents to the returning officer before polling day, the returning officer can re-address the documentation to the elector's home address. The elector can then vote at a Garda station in the same way as an occupation or student postal voter. There is also provision for the ballot paper documentation to be re-addressed to a prisoner who has been moved to another prison in the State. These are practical and relatively minor adjustments.
Sections 15 to 17 are miscellaneous amendments to electoral law which we are taking the opportunity to bring forward in this Bill. Section 15 amends section 6 of the European Parliament Elections Act 1997 by the insertion of a new provision which authorises a member of the Garda Síochána or an official of a registration authority to witness the statutory declaration which EU voters are required to submit when registering for the first time in this country to vote in European Parliament elections. The services of the two new categories of authorised witnesses are free and readily accessible. Of course, the declaration can continue to be signed by a notary public, a commissioner for oaths or a peace commissioner, as at present. It is a matter for individuals to choose from the range of authorised people.
Section 16 makes technical amendments to the Local Elections Regulations 1995, mainly relating to the local election count rules. It deletes qualifications regarding surpluses and exclusions that are no longer relevant. The purpose of the original provisions, now being deleted by paragraphs (a) and (b), was to ensure that individual candidates were given every opportunity to save their deposits by being credited with a number of votes in excess of one quarter of the quota. As the deposit system was found to be unconstitutional, these qualifications are no longer required.
The term "alderman" was abolished under the Local Government Act 2001 and there is now no statutory order of election at local elections. The amendments at paragraphs (c) and (d) reflect this position, repealing remaining provision in the local elections regulations relating to order of election.
Section 17 amends the Presidential Elections Act 1993. It makes technical amendments to the presidential count rules to ensure that candidates are given a full opportunity to qualify for recoupment of election expenses. This amendment has its genesis in Article 3 of the Presidential Election (Reimbursement of Expenses) Regulations 2004, which made provision for recoupment of some election expenses by presidential candidates if they are credited with more than one quarter of the quota at any stage of the count. Section 51 of the Presidential Elections Act 1993 is being amended to ensure that candidates are excluded separately in cases where this could give them the opportunity of qualifying for recoupment of election expenses. The amendment will bring the presidential count rules into line with the Dáil and European codes.
In addition, a procedural amendment is also being made which reschedules, from 12 noon to 3 p.m. on the last day for receiving nominations, the time for the start of the formal ruling on nominations at a presidential election. As the law currently stands, both the deadline for receipt of nominations and the start of the process of ruling on them is set at 12 noon, which may not allow sufficient time for consideration of nomination papers.
Section 18 is a standard provision dealing with the Short Title, collective citation and construction of the Bill.
This is a short Bill but a significant one. It modernises existing electoral law in an important area and provides a practical framework for prisoners to vote in future elections and referenda. It will also bring certainty to Ireland's position in meeting fully our obligations under the relevant provisions of the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms. I commend the Bill to the House.
Mr. O'Dowd: My colleague, Deputy Gay Mitchell MEP, has done much work in this area. In fact, he published the Electoral (Amendment) (Prisoners' Franchise) Bill 2005, which was the precursor to this Bill. We on this side of the House are very pleased that the Minister and the Department have taken on board the views expressed by Deputy Mitchell, as well as other views. Therefore, Fine Gael will support the Bill on all Stages.
As the Minister explained, the background to the Bill is that prisoners in Ireland have the right to vote but there is no mechanism by which they can vote. The Bill is in response to the decision of the European Court of Human Rights in October 2005 that the United Kingdom laws preventing prisoners from voting contravened the fundamental human rights of prisoners.
Prisoners currently have the right to vote in Ireland but, as they are registered to vote in their constituency of residence prior to conviction, they are physically unable to do so. The Bill proposes to introduce a mechanism through which prisoners can use a postal vote.
What we are basically doing is encompassing the decision of the European Court of Human Rights and building on the issue. There are clearly many issues that come to people's minds with regard to prisons. I accept this is not a justice debate and we are not discussing those issues today. Nevertheless, they should be addressed. The issues include Mr. Justice Kinlen's report into prisons, an independent inspectorate and the important matter of what is happening in St. Patrick's Institution, particularly rehabilitating and working with young first-time prisoners who have been convicted and incarcerated. I hope the Government will bring forward other legislation dealing with these matters.
It is important our prison system forms part of our reform agenda. It is also important that our criminal justice system is framed with the hope that this measure will in some small part go towards the rehabilitation of prisoners. It is an important social step and democratic reform which will, my party believes, strengthen our electoral process.
The question internationally is very interesting. We have done some research on it with the help of the Oireachtas Library. That work will match the Minister's word for word and argument for argument. I acknowledge as an important step the extension of staff in the Oireachtas Library to approximately 40 researchers, as it helps all of us on this side of the House who do not have the ranks of excellent civil servants. It will add to debate and it is a very constructive move. The Minister will know how good the researchers are from my comments today.
Mr. Roche: The Deputy is always well informed, focused and to the point.
Mr. O'Dowd: I thank the Minister.
Mr. Roche: The Deputy still does not deserve to be over here.
Mr. O'Dowd: We will decide that one.
Internationally, there is a wide spectrum of approaches in different countries. Canada, the Ukraine, Iran - believe it or not - and South Africa allow prisoners to vote but bar some categories of prisoners. For example, in Australia, prisoners with a sentence of over five years cannot vote. In China, prisoners on death row cannot vote.
It extends to a blanket ban in some countries, such as Russia, and countries which restrict even ex-prisoners from voting, such as the United States. Added to this are prisoners in many countries such as Ireland who can legally vote, but there is no practical organisation or process for them to do so.
The main arguments for giving prisoners the right to vote include the fact that prisoners usually overwhelmingly come from disadvantaged backgrounds and different racial or ethnic groups. Therefore, the exclusion of prisoners' votes discriminates against one ethnic racial class or group. Exclusion from voting may contradict Irish laws against discrimination and possibly the International Convention on the Elimination of All Forms of Racial Discrimination, of which Ireland is a signatory.
We know of no research that finds racial groups to be disproportionately represented in Irish prisons. However, there has been a change and there is a significant increase in the number of non-nationals in Irish prisons. There is some evidence to suggest that increases in racism are linked to increased disenfranchisement policies.
The aim of modern criminal law is to rehabilitate offenders and orientate them positively towards a society when they are released. That is the kernel of what we are trying to do here. Our legal system deals with the prisoner's body, but we do not deal with the mind. Having properly served due process and due time, we try, if possible, to help prisoners get back into society when they have fully discharged their duty to it.
It is argued that the process is assisted by a policy of encouraging offenders to observe their civil and political obligations. This is the prisoner's identification with, rather than alienation from, society. That should be the guiding principle. To deny prisoners a right to vote is to lose an important means of teaching them democratic values and social responsibility. Elections are examples of communities working together for the common good. If some members of the community are prohibited from engaging in elections, the communitarian ideal is undermined.
A citizen's right to vote should depend only on the ability to make a rational choice. The suggestion that prisoners lose the right to vote because they have violated a social contract implies they have a certain type of rationality, and that they have deliberately chosen criminal activity with the knowledge they would lose their voting rights. Without this foreknowledge and rationality - both are highly questionable - this logic fails.
There is no evidence that disenfranchisement deters crime. It may actually foster further criminal behaviour. It can stigmatise citizens. A small portion of research indicates that prisoners feel stigmatised because of a lack of a right to vote, even if these prisoners did not vote in the past. It can become a political football, as it has done in the United States, for example.
The basic principles of electoral democracy are laid down in international law. Article 25 of the International Covenant on Civil and Political Rights declares:
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: [...]
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
Article 2 states that this applies to "all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status". The European Court of Human Rights has upheld that a blanket ban violates the European Convention on Human Rights. There is no obvious logical link between losing one's liberty and losing one's right to vote.
The arguments that have been used against prisoners voting would include that of equal importance to the concept of rehabilitation is the concept of deterrence. This seeks, by the denial of a range of freedoms, to provide a disincentive to crime. Prisoners have violated a social contract and therefore forfeit the right to participate in the civil process for the duration of their sentence.
This argument is usually not popular. In the United States, a Supreme Court is quoted in upholding the prohibition against prisoners and ex-prisoners. In the United States, 2% of the population is currently disenfranchised. Research indicates that approximately 13% of African-Americans, or 1.4 million people, are disenfranchised. It is a high number. These disenfranchised people represent just over a third, some 36%, of the total disenfranchised population.
In two states in America, research has shown that almost one in every three black people is disenfranchised. In eight states, the number is one in four. If current trends continue, it is projected that the rate of disenfranchisement for black people could reach 40% in the states that disenfranchise ex-offenders.
This relates to the medieval concept of civil death. If a prisoner is not executed by the state, by imposing a civil death the prisoner will suffer as if they were physically dead in that he or she would have no rights of succession or to vote. The concept has a medieval origin, but in modern times it was brought from Europe to the colonies, where many people fully supported it in the 19th century.
Deprivation of the right to vote is not an inherent or necessary aspect of criminal punishment. Neither does it promote the reintegration of offenders into lawful society. Defenders of these laws have been hard pressed to justify them. In a modern democracy like Ireland, there is no place or case for these arguments.
I have spoken about America and the European states. Five other countries in Europe have no provision to allow prisoners to vote. However, these countries are not in the majority. Some 18 states place no voting restrictions on prisoners, and it should be pointed out that Ireland is among them. Although there is no particular ban on prisoners voting in this country, as established by a court case in the past decade, prisoners are currently unable to exercise the right. In France and Germany, courts have the power to impose a loss of voting rights as an additional punishment.
With regard to the United States, everybody will remember the 2000 presidential election and the actions of George Bush's brother in Florida.
Mr. Roche: There were hanging chads.
Mr. O'Dowd: He had many people working for him disenfranchise all the people who had a previous conviction. It gave a terrible picture of a democracy for people who were no longer in prison and had discharged their obligation. They were pursued to get them off the electoral register because of their race and political situation. That was terrible. In Florida, it is estimated that one in three of all black people are denied the right to vote.
It is worth making the point that although our country is only recently getting used to multiculturalism and we do not have a particularly high number of ethnic minorities in prison, there is a certainly a class issue with regard to the prison population and the denial of prisoner voting rights. It impinges much more dramatically on the votes of working class members of the electorate.
In the transnational context, the European Convention on Human Rights protects the right of everyone to vote. We are not legislating in isolation, nor is this just some altruistic measure by the Government or the Oireachtas. We have been remiss in not doing this earlier and it is good that we are finally acting in this regard.
It is entirely right that the Bill seeks to extend the postal vote to prisoners. When this issue was first mooted, there was some alarm that voting booths would be set up in prisons with all the accompanying costs to the State. As an aside, I note what has happened to those wonderful counting machines which the Minister, Deputy Noel Dempsey, ordered and the Minister, Deputy Cullen, delivered. We have now learned that one can play video games on them, as well as corrupting the entire voting process by means of a simple key. It shows just how unrealistic the whole process was. It is unacceptable that it can be interfered with so easily, quickly and effectively. While one may have been voting on such machines in Wicklow. Louth or elsewhere, the reality is that the process is now in serious doubt. Much money has been spent on it but the Minister of the day should have listened to the views of the Opposition, particularly those of my colleague, Deputy Allen, who strongly argued that the Minister should have sought alternative opinions.
The voting system is a matter for all of us. It is not the Government's voting system, even though Ministers have made it their system; it should be a collective system. Unless our work on issues such as the franchise and how we change the voting system is done with everyone's consent and agreement we will continue to have a debacle such as the current one. It is politically unacceptable that on these important matters the Government did not listen and is still not heeding the voice of the Opposition. We now have hundreds of electronic voting machines which are costing a fortune to store in air-conditioned offices. Perhaps they should be preserved as a work of art dedicated to the memory of this Government when the time comes.
Mr. O'Dowd: I would be interested to hear the Minister's view on that.
I also wish to raise the issue of voter education. It is difficult enough to get the general population to vote. Typically, almost four out of ten voters do not vote. I know we are trying to improve the electoral register so we will have to re-examine that voter turn-out figure again after the next election. Prisoners, in particular, come from disadvantaged backgrounds and a large number of them cannot read or write. They may also have medical and other problems. We need to educate more people across the board to vote in this regard. If we spent half or a quarter of the €50 million that was wasted on electronic voting machines in getting people out to vote, and in educating them in the process, we would get a far more effective return for our money.
The Bill also states that prisoners who are registering to vote need to establish that they were ordinarily resident in the State prior to their imprisonment to avail of the postal voting arrangements. Where does this leave EU nationals who have the right to vote in local and European elections, and non-EU nationals who have the right to vote in local elections? Are these groups to be included in the extension of voting rights? If not, we should discuss this matter on Committee Stage.
On a practical level, what arrangements does the Minister envisage around election time? Will there be an opportunity to canvass? Will there be public meetings in prisons? I can imagine how lively they would be. What access will prisoners have to the media or the arrangements currently in place? I pose these questions because if we are going to extend voting rights we should ensure that people will have the opportunity to avail of them.
My colleague, Deputy Gay Mitchell, has been a strong voice on the need for prison reform. In 2003, he observed that the response to criminal activity has been to promise more laws. He went on to say that we have passed 40 Criminal Justice Acts since 1973. If all this law was put before the Dáil in one Act or in four or five Acts, alarm bells would have rung and we would have questioned whether all this legislation was needed.
Prison reform is a difficult area and, as Deputy Gay Mitchell has pointed out, politicians are fearful of raising the issue lest they come across as being unsympathetic towards victims or soft on crime. Recidivism is high, however, and many of those who go to prison have few skills, while a significant number have mental and other illnesses.
Prisoners are, by definition, deprived of their liberty but to deprive them of the right to vote as well is to dehumanise them. Fine Gael believes in rights and responsibilities and to deny prisoners votes releases them of responsibility. If prisoners are to take responsibility for their actions they should be encouraged to feel that they are still part of society and can be rehabilitated. To punish an individual for a criminal offence should not mean that person is also automatically deprived of other rights.
It is the view of my party that giving votes to prisoners would not only acknowledge their rights but would also underline their responsibility for themselves and to society. Furthermore, it might encourage politicians to take a greater interest in penal reform and to invest greater effort in considering why 75% of Dublin's criminals come from five identifiable areas.
If we give people an opportunity to be rehabilitated while in prison, if we require prisoners to confront their own role in society and make a contribution by way of fulfilling a civic duty - that is, the duty to vote - we will have a better chance of changing prisoners' views of themselves and their role in society.
There are without doubt victims of crime who will be offended by this Bill. However, the objective is not to be soft on crime or the criminal but to examine how best we can change their behaviour once they have served their time. If we can head off the causes of crime, we will be better able to rehabilitate and reintegrate prisoners into society. This in turn should reduce crime. Locking prisoners away in poorly-equipped prisons - social dustbins as it were - is not a contribution to solving crime. As Deputy Gay Mitchell has said, it is little more than a way of recycling prisoners in a subculture which is excluded from the mainstream of society.
This Bill has important implications for our electoral system and I would like to put on the record that Fine Gael has further proposals in this area. One such proposal is to allow for automatic voter registration upon reaching one's 18th birthday. The simple solution to the difficulties we are currently having with regard to the electoral register is to place people automatically on the register when they reach the age of 18 years. This could be done quite simply by employing the PPS number currently used by the Department of Social and Family Affairs. Every person already has a PPS number, so when someone reaches the voting age, the Department of Social and Family Affairs could automatically inform the relevant local authority. Such a system would efficiently eliminate much of the confusion that currently reigns. In addition, the exclusion of 18 to 21 year olds from standing for election to Dáil Éireann makes no sense. In time this matter will have to be sorted out.
I have already referred to the debacle of electronic voting, an episode which has cast the entire political and electoral process in a bad light. Taxpayers are paying exorbitant rates for the storage of unused electronic voting machines thanks to a complete lack of direction from the Department of the Environment, Heritage and Local Government and its Ministers. On foot of a parliamentary question tabled by Deputy Paul McGrath, it was revealed that the State is paying widely different annual rates for storing these machines. The costs range from nothing in Sligo to €1.62 per machine in Louth, which I think is very good, and an incredible €271 per machine in Waterford. That shows just how out of control the situation has become.
The Bill is progressive and timely. It has been based on a decision of the European Court and will make a real difference to the campaign for prison reform. I wish it a speedy passage through the Oireachtas.
Mr. Gilmore: I welcome this Bill, which the Labour Party will be supporting. It arises from the decision of the European Court of Human Rights in the case of Hirst v. the United Kingdom, which established the right of prisoners to vote. The Labour Party supports that right.
There are a number of issues I wish to raise at this stage and, perhaps, pursue further on Committee Stage. I have received a commentary on the Bill from the Irish Penal Reform Trust which has identified three areas where it considers the Bill needs to be amended. The first issue is the requirement in section 2 that proof of residency in a particular constituency be shown by the prisoner concerned. It points out that many prisoners are homeless or have no fixed abode at the point where they are committed to prison and, therefore, may not be in a position to prove they have residence in a particular constituency, and if they cannot prove they are resident in a particular constituency presumably they cannot be registered to vote. That is an issue that needs to be addressed.
The second issue is the requirement in section 4 that a prisoner applying to register as a voter may have to provide additional information or documents to satisfy the registration authorities that he or she is entitled to be registered to vote. Again the Irish Penal Reform Trust points out that prisoners may not have access to those documents while in prison and that they could be disenfranchised if they cannot produce the documentation. It raises the question whether it is necessary for such documentation to be presented since, clearly, the State already knows the identity and has satisfied itself of the identity of the prisoner, as have the courts, and that there should be another way of dealing with that issue.
The third issue raised by the Irish Penal Reform Trust is that if the legislation is to be effective it will require accompanying complementary prison policy governing access to registration and to ballots. It is one thing for prisoners to have a right enshrined in legislation but it is another matter when it comes to be operated in the prison. The whole issue of the way this will work in practice needs to be teased out somewhat further on Committee Stage.
There is a further issue which is not concerned with registration of the prisoner as a voter but with the prisoner's exercise of his or her right as a voter, the actual casting of the vote. As I understand it, the procedure being provided for is a postal voting procedure. A process is set down whereby that is to be witnessed. There are obligations on prison officers and so on to ensure the vote is returned. The difficulty that arises, one that will have to be addressed, is how the privacy of the prisoner's vote is protected and how the integrity of the prisoner's voting intention is protected.
People who are in prison are not free. We have become aware, as recently as this summer, of the degree to which the State is failing in its duty to protect those committed to prison, of the stories about the way in which prisoners are brutalised and the way in which a prisoner was killed during the summer. We have had the report of the visiting committees and the criticisms that Mr. Justice Kinlen made of the way in which the prisons are run and the way in which the Minister for Justice, Equality and Law Reform is supervising the running of prisons. To be blunt, if the State cannot protect the lives of prisoners, their physical safety and bodily integrity, while in prison, I do not have a great deal of confidence that the administration of our prisons would be able to protect the secrecy and the integrity of a prisoner's vote.
I will need to hear more, when this issue is debated on Committee Stage, about how steps are taken to ensure that prisoners are not subjected to undue pressures, either from fellow prisoners or, possibly - I am not casting reflection on prison staff - from prison staff or individual members of prison staff when they come to exercise their voting intention. They are not free in the same way as every other voter. That is an area that will have to be addressed on Committee Stage.
The Bill is essentially about the registration of voters, in this case the registration of prisoners as voters, but there is a wider issue relating to the registration of voters which has been the subject of discussion in the House which I and other colleagues have raised here on a number of occasions, that is, the state of the current electoral register. In response to raising the matter with the Minister, to be fair to him, he has engaged in a new voter registration process and has provided some additional resources to local authorities for same. As we speak, the staff who have been engaged by local authorities are out there trying to improve the electoral register.
I have a concern about the way in which that is being done and I wish to put it to the Minister. We raised concerns about the electoral register, the multiple entries of people on the register and the fact that the register was out of date in many places. Clearly, many were on the register who were no longer living at the addresses at which they were registered. In putting it right, there is a grave danger that another very serious wrong will be done to many people, that is, that people will be removed from the register.
Mr. Gilmore: People who have been on an electoral register for many years do not give it a second thought. It is not something that occupies their minds. They have always turned up to vote and they will now be removed from the register because the method that is being used to correct the electoral register involves the sending out of letters to people and calling to people's houses and if they do not respond to those approaches from local authority officials they will be removed from the register. A paragraph from a report on this matter which was produced recently by South Dublin County Council reads: "Based on recent indicators projected from the work undertaken so far by the council, thousands of South Dublin residents who would otherwise be eligible to vote will not be placed on the register of electors for 2007-2008 because they have not furnished up-to-date information regarding persons eligible to vote to South Dublin County Council." I believe that is repeated elsewhere throughout the country. When the new electoral register is produced and people who have always voted turn up to vote at the next general election, they will find they are not on the register. When they ask why they are not on the register they will be told they are not on the register because they did not return the form to the county council.
The Minister needs to act to ensure people who have every entitlement to vote are not removed from the register. The business of saying that officials called to the door and nobody was in, that two letters were sent to which there was no reply, following which the person was taken off the register, needs to be stopped. That is not the way to correct the electoral register. During the course of the past year we proposed many ways in which the electoral register could be amended and brought up to date, but the Government chose not to take up any of those suggestions. The method now being used will deprive citizens who have always participated in the electoral process of the right to vote. If local authorities do that, they will be in breach of their duties because it is the duty of the registration authorities to ensure the electoral register is accurate. The issue must be addressed urgently.
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Another issue which arose during the course of the summer is the result of the preliminary census. The preliminary census figures published show that some constituencies are out of line with the limits set down in the Constitution. The constituency of Dublin-West, for example, will have a ratio of TD per population which exceeds the upper limit of 1:30,000 provided for and quite explicit in the Constitution. Also, a number of constituencies will vary from the norm in terms of the ratio of TD to population, in some cases by up to 10% or 12%. We will have a situation where a constituency with roughly the same population as an adjoining constituency will have three seats while the adjoining constituency has four seats.
The courts have previously insisted there must be equality of representation and that the principle of equality must be protected. Based on the preliminary census figure, the existing constituency boundaries, which were based on the previous census, are vulnerable to legal challenge. The Minister has stated publicly that the Government has decided not to do anything about this and that it will not do a new revision of the constituencies nor bring a new constituency boundary Bill before the House. He has said this conclusion is based on the advice he has got from the Attorney General.
I have asked the Minister publicly, and asked in the House yesterday through the Taoiseach, for the advice from the Attorney General to be published. To date, the Minister's response has been that the Government does not normally publish advice it receives from the Attorney General. I accept that is the case when dealing with routine Government business, but this is an area which is not about routine business. It is about the electoral process and whether the general election we will have in the next six months or so will be vulnerable to legal challenge.
The issue is urgent. If the issue is allowed to drift and the Minister hides behind the advice of the Attorney General, which nobody else has seen, we are in danger of a challenge being taken. We do not know what the courts will do in that situation or what they will decide. I remind the House that on the last occasion a challenge was taken to our electoral Acts - the Kelly case taken at the time of the 2002 general election - the judgment was handed down the day before polling day. Imagine the mess we will be in if the courts hand down a judgment stating the formation of constituencies on which the general election is based is unconstitutional. The issue needs to be addressed. The minimum I ask the Minister is to publish the advice he has received from the Attorney General. This is an issue in which we all have an interest and the advice should be available to the House.
The other development which occurred with regard to electoral matters during the summer was the publication of the second report of the Commission on Electronic Voting on the secrecy, accuracy and testing of the chosen electronic voting system. It was published on 4 July, just as the House was going into recess for the summer. I raised this matter this morning with the Minister for Finance who was taking the second phase of the Order of Business and asked him to make time available for a debate in the House on the report. The report of the Commission on Electronic Voting was made to the House, not to Government. Therefore it should be debated and discussed in the House. I repeat my call for it to be debated here.
It is interesting that we are having today's debate on the very day a report is being published in the Netherlands by a group of citizens with concerns about the electronic voting system in use there, essentially the same system and hardware and provided by the same company as that advocated for this country. The Dutch have found it is possible to hack into the voting machines and demonstrated that it was possible to play a game of chess on them. We were told repeatedly by the former Ministers for the Environment, Heritage and Local Government, Deputies Cullen and Noel Dempsey, and by the Taoiseach that the machines were secure and safe.
I have been going back over the history of the electronic voting debacle. The Government spent over €50 million purchasing an electronic voting system which will not now be used and we spend €750,000 per year to keep the machines in storage. It is clear the equipment will never be used in an Irish election, not least because the public has no confidence in it and the commission, which was established by the House, has roundly and conclusively condemned it to the dustbin.
The Labour Party raised concerns about electronic voting in 2003 and in November 2003 we published a document entitled Electronic Voting in Ireland - a Threat to Democracy? In that document we set out a number of concerns about the electronic voting system the Government intended to use. We pointed out there were problems relating to the physical and operational security of the system and that has been confirmed by the report of the Commission on Electronic Voting. We pointed out that no end-to-end testing had been carried out on the system and the same conclusion is made in the commission report. We pointed out that the quality of the software being used was inadequate and this too has been confirmed in the report. We pointed out the source code had not been made available and the commission has drawn attention to this also. We drew attention to the lack of independent verification of the system being proposed and this has been confirmed by the report. We pointed out the dangers of using CDs and floppy disks to transfer data from the voting machines to the counting system and this too has been criticised by the Commission on Electronic Voting. We also drew attention to the issue of voter confidence, which has been commented on by the Commission on Electronic Voting.
I ask the House to bear in mind that this report was published by the Labour Party in November 2003, following which the Joint Committee on the Environment and Local Government examined the electronic voting system and had expert witnesses appear before it as well as representatives of the Department and of the companies supplying both the hardware and the software. Notwithstanding all the criticisms which were made of this system, the Government and the then Minister, Deputy Cullen, proceeded to buy it anyway. When the Labour Party published its report and when the Joint Committee on the Environment and Local Government examined the electronic voting system, the contracts had not been signed and the payments had not been made. It was after the problem had been flagged and after it was known that the Opposition was unhappy with the electronic voting system, after the expert opinion had been given and communicated, that the Minister, Deputy Cullen, went ahead with it anyway.
In the past week, this House has heard much about the issue of accountability and it is not yet finished with accountability for the waste of taxpayers' money on a system that will not be used in circumstances where the Minister concerned was repeatedly told that this was a mistake and where the flaws in the system which have now been confirmed by the Commission on Electronic Voting were already pointed out to him.
The commission has done an excellent job and has produced two reports. The second report, which is its major opus, has now been presented and is before the House.. The House will need to discuss what is to be done arising from that report. It must discuss what is to be done with the voting machines. It must discuss what is the future of electronic voting, if any, in this State. It must discuss the question of holding to account those Ministers who wasted such a huge amount of Irish taxpayers' money. When will the Government provide time for such a discussion?
We are approaching a general election. On other occasions in advance of general and local elections the Government has suddenly pulled electoral legislation from the bottom drawer to be presented and rushed through the House. I recall legislation being brought forward in the run-in to the 2002 general election which increased quite significantly the spending limits to be allowed in the course of that election. I want a clear statement from the Minister. Is any further electoral legislation contemplated by the Government between now and the general election? If it is contemplated, I want to be told about it now, not when it is being published and presented in an attempt to rush it through the House.
I have raised the following issue with the Minister by way of a parliamentary question. What action does the Minister propose to take about the spending limits? Is it intended to increase the spending limits for the forthcoming general election? It is in the interests of the entire political system that this information be known. It is unacceptable that the existing Government would have a game plan with regard to spending on the general election which is not available to other political parties and to the general public. I await a clear statement from the Minister.
Mr. Healy: I wish to share time with Deputies Morgan and Cuffe.
I welcome the Electoral (Amendment) Bill 2006 and its proposals for dealing with the right of prisoners to vote and the provision for postal voting to allow for that. This provision arises from a decision from the European Court of Human Rights in October 2005, whereby a prisoner in the United Kingdom took a case and the court found in his favour. This legislation is being introduced on foot of that decision. I welcome the decision and the right to vote which it gives. I welcome the provision that this voting be allowed by means of postal voting. Details on the implementation of the voting and aspects of security will need to be discussed and teased out on Committee Stage but I support this aspect of the Bill.
The Bill deals with a number of other matters of electoral law. I have drawn the attention of the House to the question of the review of the electoral register. I have discussed it with local authority officials and with the Minister's officials. I refer to the current status of the register, the method of that review and what will be the result of the review. There is a significant difficulty with the current register in the bigger cities but this is not the case in the majority of provincial areas. In my view, the Minister's actions are a threat to democracy. The method being used on the instructions of the Minister will ensure that thousands of voters will be wrongly deleted from the electoral register as a result of those instructions. Local authority officials are concerned and county managers have raised these concerns with the Department and at meetings of the County Managers Association.
I appeal to the Minister to review his instructions as he is using a sledge-hammer to crack a nut. He has turned the review of the register on its head. I was a local authority official. I am aware that until now, the key element in the methods of reviewing the electoral register was that no person was removed from the register unless he or she had died, unless a duplication was clear to the local authority or it was clear to the local authority that the person had moved. The Minister has turned the situation on its head. One must either meet a field officer or send in an application in order to be put on the new register. While I had not heard of the report from South Dublin County Council, referred to by Deputy Gilmore, it is consistent with everything I know and have heard from local authority officials throughout the country in this regard. The instruction sent by the Minister would prevent local authorities from using their own records in putting people on the register of electors. For instance, it would prevent local authorities from using their housing rental records to put people on the register of electors, which is insane.
Mr. Healy: It is true and if it is not true, the Minister should advise local authorities that they may use their current records regarding rent, service charges etc. to put people on the register of electors because they do not believe they can do so under the instructions issued by the Minister. The Minister should clarify this to the local authorities if what I am saying is wrong.
Mr. Roche: I will return to it. The Deputy can be assured it is wrong.
Mr. Healy: Will the Minister issue instructions to the local authorities stating it is wrong?
Mr. Roche: I just said I would return to it.
Mr. Healy: It is not very good to return to it here. The officials involved need to know what they are entitled to do. As of now they believe they cannot use those records to put people on the register. I ask the Minister to extend the time period for the review of the register. Under the present timescale it is not possible to review the register in the manner the Minister wants and that we all want. When this matter was raised in the House, the Minister promised that there would be a significant high profile publicity campaign on the review of the register of electors.
Mr. Roche: There is a campaign.
Mr. Healy: I do not see it. The campaign is in no way conspicuous.
Mr. Roche: Is the Deputy serious?
Mr. Healy: I am serious. Local authority officials are concerned that the campaign is lacklustre, that there is insufficient focus on the campaign and that the vast majority of the public do not even know the review is taking place.
Mr. O'Dowd: The Minister should appear in the advertisement.
Mr. Roche: I was thinking of doing so.
Mr. Healy: Unless the instructions the Minister issued are changed, unless he extends the timeframe for the review and unless he puts in a proper campaign, we will end up with a register, which is ten times worse than what we have at the moment. I plead with the Minister to put the resources into the campaign, to make the changes I have outlined and to ensure we end up with a proper register. I am not alone in believing that there will be thousands of electors wrongly deleted from the register as a result of this exercise.
I turn to the preliminary figures of the 2006 census. The constituencies must be redrawn on the basis of the preliminary census figures, which will be final figures by next February, well before the general election. With a number of my Independent colleagues, I will be pursuing the matter to its conclusion, legally if necessary.
Respect for rights in the penal system with prison as a last resort.