Mr. John O'Dowd:

I thank the Chairman for the invitation to appear before the joint committee. The consultation paper produced by the Department is an excellent starting point for this exercise. As Dr. MacCárthaigh just mentioned, it takes things much further than we did in our study in 2008, particularly with regard to the examination of some of the governance arrangements in respect of an electoral commission. It was very gratifying to hear the nice things people said about the 2008 study. When we entitled it "Preliminary Study on the Establishment of an Electoral Commission In Ireland," we did not realise quite how preliminary it would turn out to be, but it may be useful after seven years to look back at some of the issues that have been raised in the consultation and to share my own thoughts on them as they have been formed at this point.

In compiling the 2008 study, we found it striking that there were different levels of satisfaction with the operation of the administration of elections, as previous experts have mentioned. At one end of the spectrum, in discussions with the political parties, the Department and the returning officers, apart from the occasional complaints about particular issues, there was generally a very high level of satisfaction with the way in which the core function of conducting elections was conducted, such as the nomination of candidates, the production of ballot papers, polling, and the counting of votes. It was recognised that it was appropriate to do this both at local level and at the level of returning officers, who are independent of the public sector to a large extent and are just brought in for this particular function periodically. More towards the middle of the spectrum of satisfaction, there was a fair level of support for the Standards in Public Office Commission in terms of its performance, but specific inadequacies in the legislation were identified, some of which have been remedied since, and there was also praise for the commission in the sense that it did a very effective job with very slender resources. In terms of enforcement, for example, it could have done with a much better level of resourcing.

The main area of dissatisfaction has been mentioned several times, and I am sure that members, as public representatives, are well aware of the dissatisfaction with the maintenance of the electoral register. We recorded this and several other reports noted it. Many of the concerns, as has already been mentioned, related to a lack of consistency and co-operation between local authorities and in particular the very different levels of performance that different local authorities were able to achieve. What we were told, although it is not the total explanation, was that in many local authorities this function seemed to have a very low prestige attached to it, so that if anybody did particularly well in the franchise section of a local authority, he or she rapidly got promoted to some more important post and somebody else had to start all over again learning on the job.

What was striking in our report - it is difficult to document it, but we learned this from talking to people - was that the actual role in the system of the franchise section of the Department of the Environment, Community and Local Government goes considerably beyond the formal description of its responsibilities. It is essentially the brain of this quite decentralised electoral system, and through various informal levers or channels of communication it has carried out much more of a co-ordinating role than is formally described in the legislation or in the published practice.

It is noted in the consultation paper that in the 2008 study we favoured a phased and partial consolidation of electoral functions into a new electoral commission. I do not see any reason to depart from that. Given the differing demands and expectations in relation to the various electoral functions, it still seems reasonable to me to concentrate on those functions that can be quickly and easily consolidated into a new body of this type, rather than attempting to set up a new institution and making radical changes to the administration of elections simultaneously.

I am still of the view that the Standards in Public Office Commission ought to remain the core of the new body and that in the short term it should have oversight of rather than direct responsibility for electoral registration. There is some scope for improving the performance of local authorities in this respect through establishing performance norms and supervisory mechanisms, while a more fundamental reform of electoral registration is planned and prepared for. It is noted in a number of places that PPS numbers might play a role in a new system of individual rolling registration rather than household annual registration. As we noted in the 2008 study, it is somewhat misleading to focus only on PPS numbers because experience in Northern Ireland and elsewhere shows that a wide range of identifiers must be used in order to satisfactorily establish the identity and entitlement to vote of a particular individual.

Similarly, in relation to the type of conduct in which the returning officers engage in administration of elections, we noted in 2008 that there is probably a need only for a general oversight function in the electoral commission rather than a detailed assumption of that role.

On the composition of the commission, I am open minded about whether the study we authored in 2008 made the right call, that the new commission should be constituted in broadly the same way as the Standards in Public Office Commission and similar bodies and that it should specifically exclude those who had experience of party politics. Dr. MacCárthaigh referred to the fact that there is a reasonable case to be made for a smaller specially-appointed board to exercise oversight over the operations of an electoral commission. There are cogent reasons for this, as I say, on grounds of effectiveness and accountability, but I remain to be persuaded that it will be possible in the short term to come up with a method of appointment that retains the undoubted impartiality and legitimacy that are clearly desirable here, particularly bearing in mind that the new body will have responsibility, not merely for the conduct of elections but also for referenda. I make that point because it might be possible to get agreement among the political parties as to who are suitable persons to serve on an electoral commission. However, if the electoral commission is to take over the role the Referendum Commission has in referenda, given in many referenda the political parties do not represent one side, the "No" side, it could be that a body that is satisfactory to the political parties is not seen by those who are proposing a "No" vote in a referendum as being a legitimate entity.

Where I would perhaps differ in emphasis from the consultation paper is on the planning and policy functions of a new electoral commission. The consultation paper, at page 42, observes that the circumstances have "largely changed", since 2007 or 2009, as to whether an electoral commission should have "a significant advisory role on electoral and political reform issues" because of the enactment of a considerable number of significant pieces of legislation, and the Department is entitled to take some credit for the fact that there have been substantial changes in party funding and other aspects of electoral law. I would not be as sanguine as the Department appears to be in the consultation paper about the fact that this is a closed chapter because there is a need for the electoral system to be kept under constant review and for forward planning in order to take a proactive rather than reactive approach to electoral policy and administration. It seems to be desirable that an electoral commission should have a significant role in these matters and that the franchise section of the Department should not be left as the dominant governmental actor in planning and policy change in relation to elections. As I noted already, the franchise section has a role in the development of policies and standards in elections that goes somewhat beyond the formal specifications of its responsibilities. For example, it is clear that there is a degree of long-term planning at work in the efforts of successive constituency commissions and it seems plausible that this element of continuity is influenced by the support role of the franchise section. The franchise section has generally discharged well its co-ordinating and planning roles in terms of the electoral system, but within the constraints of a departmental administration where particular Ministers have particular projects, with which they want to be associated, for which they want to take credit and which do not necessarily always go smoothly. It strikes me that a meaningful electoral commission must, to some extent, supplant some of these functions now performed within the Department and would, ideally, involve appropriate transfers of staff to the new body. In that context, perhaps it is not surprising that the consultation paper to some extent skirts around this aspect of the planning for the transition to the new body.