Submission to the Joint Committeee on Environment Culture and Gaeltacht

SUBMISSION TO THE JOINT COMMITTEEE ON ENVIRONMENT CULTURE AND GAELTACHT

ON THE PROPOSED ELECTORAL COMMISSION

NOEL WHELAN MA BL

8th June 2015

Introduction

1. I make this submission in reply to the kind invitation of the Chairman of the committee to comment on the proposed establishment of an Electoral Commission. I do so as an ordinary voter with a particular interest in the issue of the administration and conduct of elections. I have worked previously as a political organiser for Fianna Fail and was a candidate for the party in the 1997 election. I have also been actively involved more recently in running campaigns in a number of referenda. I have also published extensively in the area of politics, elections and electoral in Ireland. These works have included the Tallyman series of guides to Dáil elections from 1997 t0 2011 and “ Politics, Elections and the Law” a textbook on electoral law published in 1998. Most recently in a ‘Law and Government’ a book of essays in memory of the late Rory Brady SCpublished in December 2014 I authored an essay entitled “Changing The Rules of The Political Game: Observations on two decades of legislative and judicial activity in electoral law”.I work currently as a barrister, specialising in criminal and constitutional, including electoral law. I have been instructed, for the Attorney General, the Director of Public Prosecutions, for various political parties and individual candidates in a number of election or referenda petitions and in some of the other leading cases in the electoral law area. I make this submission in an entirely personal capacity.

The need for an Electoral Commission

2. I also make this submission as someone who for many years has strongly been of the view, and argued repeatedly in published materials, that the establishment of an electoral commission would not only assist an improvement in the administration of Irish elections but would also enhance the profile and study of our elections and improve participation in the Irish electoral process at all levels. Not only is electoral administration by an electoral commission independent of a government department now the norm in most comparable democracies but I am also strongly of the view that setting up such an electoral commission in Ireland represents the best means of equipping our electoral process for the new challenges which both the greater diversification in political competition in Ireland and the rapidly changing media and technological environment present. These challenges will intensify in future years and an independent electoral commission is more likely to have the necessary expertise, flexibility and flair to best utilise and exploit these modern developments.

3. Independent electoral commissions are a prominent feature and basic component of the operation of elections in most modern democracies. Indeed, they are usually seen as the first pre-requisite in the new legislative or constitutional code of emerging democracies. The shift to such an independent electoral commission in Ireland is long overdue and it is surprising that it has taken so long. The Consultation Paper on the Establishment of an Electoral Commission in Ireland (The Consultation Paper) presented to the committee by the Department has set out some of the detailed chronology of the background to proposals for the establishment of an electoral commission in Ireland. It is worthy of note that in policy documents and manifestos published before the 2007 and 2011 general elections and indeed in the Programmes for Government published after these polls, all of the main political parties committed themselves to establishing such an Independent Electoral Commission. There have also been express commitments on the record on Dáil Éireann from most, if not all, Ministers of Environment since 1997 to the effect that the establishment of such an Independent Electoral Commission was imminent. Indeed in 2008 the Department of Environment commissioned a detailed expert report on what the remit and structure of an electoral commission should be in the Irish context[1]. That ‘Geary Institute’ report set out a methodology on how an electoral commission could be fully operational within a period of in or about five years. It is ironic to note now that had the recommendations of that report been implemented with any haste such an electoral commission would have been fully operational for the 2015 or 2016 Dáil election

4. It is important to acknowledge that, as the Consultation paper emphasises, under the current arrangements the administration of elections in Ireland have been competently and fairly administered and are generally recognised as such.

I have written elsewhere:

“The administration and administrators of elections in Ireland have almost without exception been and been seen to be above reproach. In the more than one hundred Dáil, European and local elections held in Ireland since independence, there have been only a handful of instances where even a suggestion has been raised of impropriety on the part of electoral officials[2]”.

I note the warning in the Consultation paper presented by the Department to this committee that appropriate emphasise is placed on the need to establish an electoral commission “ In a manner which adds value to the manner of our electoral process by promoting it and enhancing participation without compromising its strong reputation”. I agree wholeheartedly with that view but would emphasis that it is possible to carefully establish an electoral commission in a manner which safeguards Ireland’s reputation for free and fair elections and public confidence in our electoral process but which also expands and modernises the capacity of our electoral administration systems.

5. Notwithstanding its strong reputation, Irelands system of electoral administration is not without defects and weaknesses. These arise in part from the organic and at times ad hoc manner in which the regulation and administration of elections and related activity in Ireland has intensified in recent times. Those aspects of our electoral processes, which give cause for concern, include (but are not limited to) the following:

A. The condition of the electoral register

There are still substantial concerns about the standard and maintenance of the Register of Electors in Ireland. While these concerns were more prominent about a decade ago they persist. Frankly our local authorities are indifferent to the inaccuracy of the registers they produce, have no real interest in undertaking the task and no real inclination to do anything about the problems often identified. This is perhaps understandable when one considers that they assumed the function for maintaining the register of electors in an era when they had large staff of rate collectors with intimate knowledge of the households in their local area.

It is worth emphasising in this regard that in its most recent report on an Irish Dáil election in 2011 the OSCE/ODIHR pointed out that the accuracy of the registers was an issue that was brought up by a number of interlocutors. They noted;

“There is no requirement to de-register in one constituency before registering in another area and it was assumed that there may be a number of double registrations[3]”.

While those in Ireland with whom the OSCE/ODIHR delegation engaged expressed confidence that although the registers could benefit from further improvement, their shortcomings would not be used for fraudulent activity, such as multiple voting. “The greatest concern was that double registrations could inflate the total number of voters, thus artificially lowering actual voter turnout figures.”

I suspect that every deputy on this committee will in their own constituencies be able to identify numerous instances where persons no longer ordinarily resident at an address or even in the constituency still have a vote available to them on the register for that area.

B. The minimal efforts to encourage people to register and to vote

A striking feature of our electoral process is how there are so few efforts made or campaigns launched by our electoral administrators to encourage voters to register during the annual registration process, during the supplementary registration process and also how few and weak the campaigns are to encourage voters to vote in elections or referenda. Some months in advance of the recent two referenda the National Youth Council estimated on the basis of Red C poll research that in or about 120,000 younger voters were not registered[4]. In the lead into the two most recent referenda this was offset, to some extent, by a record number of additions to the supplementary register. This increase in registration was affected by students unions and other campaigning organisations however rather than any obvious public effort by the official election administration.

C. The absence of centralised election results and electoral data

There is to date no official central repository of electoral data and statistics in Ireland. Such is an official source of election data and materials is a necessary perquisite not only for assisting those who may wish to compete in, or observe or study our elections but would also be an invaluable resource in assessing the effectiveness of the system itself and any proposal for electoral law reform. Anyone looking today for detailed Irish historical electoral data is left dependent on the electionsireland.org website which is maintained not by our election administrators but through the voluntary efforts of the leading psephologist Sean Donnelly and others. Anyone looking for collated data on the likely shape of political competition in individual constituencies in the next Irish general election, now less than a year away, will have to rely on the considerable voluntary efforts of Adrian Kavanagh the political geographer at NUI Maynooth. Even on count day our electoral administrators provide no centralised results. No detailed official record of the overall outcomes of the Dáil, local or European elections is published until months after the election date. It is left instead to media organisation to collate and publish these overall figures.

5. The above is not intended to be an exhaustive list of the difficulties with our current arrangements for electoral administration. In my view the need to maintain the strong reputation of our election processes can best be done by retaining that which is best of our current system within the wings of a system overseen by an independent electoral commission and adding to it an additional dimension which enables more proactive engagement in educating about our elections, in the study or our electoral processes and in promoting greater participation. A permanent independent electoral commission, as well as streamlining and enhancing our electoral administration, ensuring the maintenance of a more accurate electoral register, and overseeing compliance with expenditure and funding controls, could engage in more proactive efforts to encourage citizens to participate in elections and referenda.

6. It should be noted, and the committee will no doubt already be aware, that all the changes necessary to establish an electoral commission and to give it key functions could be done by legislation and no constitutional amendment would be required. There is no constitutional impediment to the establishment of an electoral commission and neither is there any constitutional objection to an electoral commission performing the task of delimiting Dáil constituencies, developing measures, for example to improve the electoral register such as moving responsibility for maintaining the electoral register to a national body and moving to a system of individual registration.

7. In the preparation of these submissions I have had the opportunity to review the comprehensive consultation paper prepared by the Department, the background briefings prepared by the Houses of the Oireachtas Library, together with the‘Geary Institute’s’2008 Preliminary Study On the Establishment of an Electoral Commission in Ireland ass well as academic literature on best practices in this area. These comprehensively summarise the context in terms of electoral law and practice within which the establishment of an electoral commission would not take place and they also discuss in detail the comparative examples particularly in those common law jurisdictions, of the Westminster tradition, which have more recently established electoral commissions. Having made the above general observations therefore, I will confine the rest of this submissions to offering recommendations directly on some of the key question highlighted in the Consultation Paper to which it is suggested this committee should apply its deliberations.

Recommendations

1. That an Interim Electoral Commission should be established as soon as possible and be given the oversight functions for the administration of election currently held by the Department of Environment. Over the course of five years, (i.e. a full electoral cycle) the range of functions given to the new Electoral Commission should be expanded.

2. That for the next Dáil election and for a considerable period thereafter elections at constituency level and local council level should be operated as currently by county registrars/sheriffs or local authority officials. The Electoral Commission should however itself take responsibility for the conduct of the poll and count at the next European Elections, if necessary using the experienced staff of local authorities and county registrars/sheriffs on a contract basis. The electoral commission itself should also be asked in time, (perhaps after three years) to revert with proposals on whether it should directly run individual elections and counts in local and Dáil elections.

3. That in the interim stage the Electoral Commission should oversee the registration of voters as currently conducted by the local authorities. The new electoral commission should however be tasked with designing the best and most effective means of moving to a national level system of voter registration on an ‘individual’ as opposed to a ‘household’ basis. Compiling the electoral register is a task almost uniquely suited to national rather than local administration, especially in an era when people increasingly move house across county and city boundaries. The New Zealand system whereby the postal service is tasked with maintaining the registrar of electors has much to recommend it. The new electoral commission in Ireland should be asked to revert, perhaps within a period of three years with proposals for a similar national registration system in Ireland.

4. While the Electoral Commission should be chaired by a Supreme or High Court Judge, the other membership should be selected for their specific skills and experience which would be useful to the electoral commissions work rather than because they hold any particular office, any concerns about the independence of the membership of the new electoral commission can be adequately addressed by the fact that it is chaired by a judicial figure and by putting in place a process of selecting the other members which is independent and impartial. A selection process run perhaps through the Public Service Appointment Commission assisted by a selection panel appointed by a Dáil committee (or in a manner similar to how the Human Rights and Equality Commission were recruited or how the proposed Policing Authority is likely to be recruited) would be the appropriate approach. Once such a robustly independent selection process was put in place there is no reason why former parliamentarians should be excluded per se from the membership of the Electoral Commission provided they met the other relevant criteria.

5. The new Electoral Commission should by given express statutory functions in relation to the raising of the profile of Irish elections and referenda, proactively encouraging registration and voting, promoting the study of elections in Ireland and maintaining and publishing, electoral data, statistics and results.

6. The task or revising Dáil and European constituencies should continue to be conducted by a separate Constituency commission established after each census as currently provided for in statute. The operation of the Constituencies Commissions is one central aspect of our electoral administration which has been entirely independent and worked well for almost four decades. These boundary commissions should be staffed and assisted by the new Electoral Commission but the decision on what boundary changes to recommend to the Dáil should continue to made by a separate Constituencies Commission as currently. Similarly the boundaries for local elections should continue to be redrawn under the current procedure.

7. The functions currently given to ad hoc referendum commissions at each referendum should be transferred to the new Electoral Commission. This would overcome the considerable difficulties which the ad hoc nature of these Referendum Commissions has given rise to.

8. The electoral functions currently carried out by the Standards in Public Office Commission should be transferred to the new Electoral Commission in the manner recommended by the Geary report. In due course the functions relating to election expenditure and donation and declarations performed by local authorities in city and county elections should also be transferred to the new electoral commission.

Conclusion

Parliamentarians should always approach the task of electoral law reform with caution. As I have written elsewhere:

“Few areas of law present as many challenges for legislators and indeed for the judiciary as electoral law. The process of shaping the law of politics and elections operates at the intersection of the branches of government: at a particularly sensitive locus on the boundaries of the Separation of Powers.

Politicians are akin to players who get to write the rules for their own sport. They have direct experience in elections and political activity and so see themselves as particularly qualified to make the relevant laws. They are slower to recognise however that as incumbents they are massively conflicted in doing so. In this area of law, more than any other, politicians are peculiarly attuned to the implications of even the slightest shift in legislation or in judicial interpretation of that legislation.[5]”

In that context the decision of this committee to consult stakeholders and experts in the area at the pre-legislative state is particularly welcome. I hope the above observations have been of assistance in that regard.

I would be happy to make an oral presentation at a public hearing of the committee and to expand on the basis for the above recommendations if that was felt to be of value.

Noel Whelan, 8th June 2015

1

[1] See “Preliminary Study On the Establishment of An Electoral Commission in Ireland” by Richard Sinnot, John Coakley, John O’Dowd, The Geary Institute UCD November 2008

[2]Changing The Rules of The Political Game : Observations on two decades of legislative and judicial activity in electoral law” Noel Whelan in Law and Government, Round Hall, December 2014 page 45.

[3]OSCE/ODIHR report on the 2011 Dáil election.

[4] See,

[5]