Oireachtas Joint and Select Committees
Wednesday, 24 June 2015
Joint Oireachtas Committee on Public Service Oversight and Petitions
Design and Layout of Ballot Papers: Department of the Environment, Community and Local Government
I ask those present to be careful with their mobile phones as they interrupt the sound system.
We are dealing with an update from the Department of the Environment, Community and Local Government on the design and layout of ballot papers used in the Seanad referendum in 2013. Members will recall that, following the referendum in October 2013, a former member of the joint committee, now Minister for Foreign Affairs and Trade, Deputy Charles Flanagan, raised concerns about the design and layout of the ballot paper used. This followed feedback from constituents after the referendum when a number of people indicated that they had been very confused on how they should complete the ballot paper and what they were voting for. International standards require that the question being put to voters must be clear. Clear identification of each ballot paper is also essential where more than one referendum proposal is being put on the same day.
The secretariat engaged with the Department on the issue and, following consideration of the information received, it was agreed to invite departmental officials to appear before the committee on 16 April 2014. Following this discussion the joint committee agreed and published a report with recommendations. The report, launched in June 2014, included a provision that the committee seek a progress report on the Department's progress in implementing the recommendations listed. The report was also chosen to be debated in the Dáil on 7 November 2014.
We are very pleased to welcome Mr. Enda Falvey, Ms Mary Lane and Ms Mairéad Ryan from the Department of the Environment, Community and Local Government. I thank them for forwarding their presentation which has been circulated to members.
By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of the evidence they give to the committee. If they are directed by it to cease giving evidence on a particular matter and continue to do so, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or an entity by name or in such a way as to make him, her or it identifiable.
I invite Mr. Falvey to make his presentation.
Mr. Enda Falvey:
The Chairman's letter to the Department on 2 February 2015 requested a progress report on the matters raised in the joint committee's report of 12 June 2014 which was entitled, Report on the Design and Layout of Ballot Papers used in the Seanad Referendum October 2013". The report had emanated from the committee's consideration of correspondence sent to it following the referendums held in October 2014 in which concerns had been raised about confusion among voters in respect of the design of and the text and language used in the ballot papers used in the referendum on abolition of the Seanad. The Department sent a progress report to the committee on 19 March 2015.
Officials from the Department were invited to address the committee on 22 April 2015.
The committee later extended this to today, having regard to the ongoing work on the referendums on marriage equality and the age of eligibility for election to the Office of the President. I thank the committee for its consideration in this regard.
This meeting is an opportunity to review the Department's progress report. The committee will also be aware that its report of 12 June 2014 was debated in the Dáil last November and that some of the issues raised in that debate continue to be relevant. The committee's report outlined four main recommendations, namely, that the Minister should examine the legislation with a view to modernising it; that the Minister examine the legislation with a view to modernising how a question is put; that the Minister examine the possibility of proofing the wording formally by some means in advance of preparing the ballot paper; and that a permanent electoral commission be established with a mandate to conduct research.
I will take the recommendations on legislating to amend the format of the ballot paper and the possible proofing of the ballot paper wording in advance of referendums together. Following the publication of the committee's report, the Department sought legal advice and consulted the National Adult Literacy Association to identify the steps that might be taken in regard to the format of the ballot paper. Simplification and modernisation of the referendum ballot paper is not a straightforward matter. Article 46 of the Constitution provides that every proposal for an amendment to the Constitution must be initiated by a Bill which is submitted for the decision of the people. The Bill must therefore be the focus of the amendment. A direct question must be put to the voter about the proposed amendment rather than any interpretation or summary of the amendment. Making a question simpler or more obvious runs the danger that a gloss or spin interferes with the real textual question and potentially acts as a forum for referendum information. Recent court cases have emphasised the importance of process in holding a referendum. The Department felt the National Adult Literacy Association had valuable comments to make in regard to the wording of the referendum ballot paper. The association informed the Department that one in six adults between the ages of 16 and 65 years has literacy difficulties. For such individuals, the format of the ballot paper used in the October 2013 referendums may have presented difficulties. Issues identified include the closeness of the Irish and English texts on the ballot paper and the excessive use of capital letters and bold text. Subsequent consultations between the Department and the National Council for the Blind reflected some of the same concerns in respect of people with visual impairments.
Taking these points into consideration, the Minister felt that the focus in the shorter term, particularly with the prospect of two referendums then envisaged for last May, should be on measures that could be taken within the existing legislative framework to assist voters in becoming familiar with the questions on the ballot papers. This does not mean the format of the ballot paper cannot be improved in the medium to long term. A future electoral commission might usefully be given the task of making recommendations on a new form of referendum ballot paper. Depending on the particular amendment of the Constitution being put to the people in a referendum, it may be possible to move to a formula which would continue to focus on the amendment Bill while also expanding the question so that it is more explanatory. This sort of research would, perhaps, be in line with the research mandate for the commission recommended by the committee.
In our progress report of 19 March 2015, we outlined the measures being taken by the Department to improve the format of the ballot paper in the May 2015 referendums. In summary, the format of the ballot paper was changed to make it easier for people with literacy and visual impairments. The Department had a positive engagement with the National Adult Literacy Association and the National Council for the Blind in making these changes. While not meeting all of their requirements, both organisations agreed that the new format of ballot papers used in the recent referendums was a big improvement on the previous format. The changes included the use different and generally larger font sizes, together with better use of upper and lower case letter, bold lettering and shading. A sample copy of a ballot paper was provided to the committee.
Statements for the information of voters prescribed by each House of the Oireachtas were provided in poster form to local returning officers for placement in polling compartments. Approximately 25,000 posters were printed and distributed to assist voters at the point of marking their ballot papers. Senator O'Keeffe made a suggestion along these lines during our discussion with the committee last year. The Department wrote to the Referendum Commission in advance of the May referendums to ask it to consider including a mock up of the ballot papers in the information booklets sent to voters. The commission did so, which meant that voters had sight of the ballot papers and had an opportunity to familiarise themselves with the questions being put to them in advance of polling day. The opportunity to see a mock up of the ballot papers in advance hopefully helped some of those who were confused by the ballot paper in the October 2013 referendums.
In regard to the committee's recommendation that a permanent electoral commission be established with a mandate to conduct research, progress has been made over the last several months. As noted in the progress report of 19 March, the Minister published a consultation paper on 27 January 2015 to commence the pre-legislative process leading to the establishment of an electoral commission. The consultation paper includes the recommendations of this committee. The Minister invited the Joint Committee on the Environment, Culture and the Gaeltacht to examine the consultation paper and to consider undertaking a public consultation process to inform the preparation of legislation to establish a commission. The Minister met with that committee on 10 March 2015 and I understand the consultation process is well underway. The closing date for written submissions was Monday, 15 June 2015, and public hearings commenced on 16 June and are to conclude before the end of July. A report will be submitted to the Minister on the outcomes of the consultation as soon as possible thereafter. In any future work on the matters raised in eh committee's report of 12 June 2014, it is important that we do not lose sight of the gravity of the decision voters are asked to make in a referendum and the need for precise language in legal matters. Proposals to amend the Constitution can have far-reaching and profound consequences. In a constitutional referendum, voters are not simply being asked their opinion on a particular issue; they are asked to decide on amendments to the Constitution set out in the relevant amendment Bill.
I hope my brief statement adequately sets out our response to the recommendations made in the committee's report on this matter.
I thank Mr. Falvey for updating the committee. It is good practice that we regularly revisit the petitions and issues raised with this committee and I welcome that some of our recommendations have been taken on board by the Department. It makes us feel that we are doing something right. If somebody is visually impaired or has a physically disability preventing him or her from marking the ballot paper, what is the procedure for assisting him or her? We may have discussed the issue previously but I am still curious about it.
Mr. Enda Falvey:
Procedures and guidelines have been prepared by the Department. In the case of the presiding officer assisting the voter, it is suggested that the officer proceed to a quiet part of the room or, if necessary, clear the polling station for a brief period so that the person with the visual impairment can feel free to state his or her preferences out loud without the risk of interfering with the integrity and secrecy of his or her voting preference.
Mr. Enda Falvey:
We had some feedback. Obviously, no system is absolutely perfect. Generally, the comments were very positive but a few people contacted the Department with suggestions. One was to the effect that the Irish version could be put at the back of the ballot paper and that it was still confusing having the Irish and the English on the face of it. Some people raised smaller points such as that "Sea" and "Ní hea" might be more relevant than "Tá" and "Níl". Those are the ones that come to mind. Generally, the complaints were of a minor nature in my view and most of the comments were positive.
To follow up on Senator Ó Clochartaigh's point, not all complaints would be about the ballot paper. The question of assisted voting has been dealt with and it was indicated that a companion person is available. Many people have raised with me an issue I am sure they have raised with others which involves people who are working away from home, including outside the country as part of the diplomatic service, and so on. Is there a very strict approach to the issue of people who are going away? Holidays are the obvious issue. May is a holiday month and people often question the holding of a referendum in May. Are the conditions set down very clearly? Is it always work related? Is it the case that people going on holidays cannot vote?
Mr. Enda Falvey:
That is the position. It is set down quite clearly that the postal voting facility is available for a number of categories of people. It includes people who will not be able to turn up at the polling station due to their work. Those people can fill in an application form and get a postal vote.
Mr. Enda Falvey:
The postal vote is available to a wide range of categories. Generally, we associate it with our diplomats and their spouses abroad, our military personnel, gardaí, people with physical disabilities, and students in a college within our jurisdiction. They are the main ones that come to mind.
One of the issues that arose in the marriage equality referendum about which I received complaints related to the many young people who got involved who were voting for the first time. Some of them found out too late in the day that they were not even on the register. Did the Department receive many complaints in this regard? These were people in their 20s and early 30s who had a vote at one stage but were taken off the register and found out far too late to get onto the supplementary register. There seemed to be a great deal of confusion over that, particularly where people were taken off the list who believed they had a vote previously.
Mr. Enda Falvey:
This is a perennial difficulty as the members will appreciate more than me having had it on the call lists every time they go back to the people to get another mandate to return to the Houses of the Oireachtas. There is always some difficulty or confusion generated by the register. The register system is quite simple if one is familiar with it, but if one is not familiar with it, it can pose a few problems. Every November, the Department engages in awareness initiatives for people voting for the first time to encourage people to register to vote. It may be that some of this does not hit home as an election is not in the offing. Colloquially, the last referendum appeared very much to appeal to younger people because of the issues involved and some of them may have decided too late to interact with the register process. There is an opportunity if one is an eligible voter to get on the supplement to the register up to 14 days before polling day, which is reasonably generous. Most people no matter what their age were well aware coming up to the referendum that it was on 22 May and would have had a reasonable prospect of being able to get on the register. I am not saying it is an easy system, but they would have had the opportunity to interact with it.
As for people being taken off the register, local authorities manage the register and we encourage them to manage in such a way that it reflects the actual electorate. There is a process, God help us, whereby people who die are removed from the register, but there should be no reason for a willy-nilly removal. The legislation provides a detailed system for taking people off the register. One cannot just remove them, but must contact them to notify them and show good cause.
There were just one or two cases where the person may have moved away for college but was still coming home at weekends. Those people swore black that they never received a letter from the local authority saying it would remove them from the register unless it was told otherwise. That leads to an awful lot of frustration when one is coming up to polling day.
I thank the Department for the report. This is the biggest problem. People who may have voted in five or six elections and referenda may suddenly find at the polling station that their name has been taken off the register. These are people who answer any letters that are sent and it is unbelievable to think their names have been removed from the register. To get on it is one thing, but some people have been removed when the tradition has been there of voting ten or 20 times. When a person suddenly walks in to find he or she has been removed, is there any mechanism where a person who has voted before can be reinstated on the day? It is terribly unfair where people have travelled miles and really want to vote having done so in the past at the same station. The returning officer in the station is there for a lifetime and knows the people who come in and who have voted before. The returning officer will have marked the person off the register five or even ten times, yet because the name has been removed for whatever reason, it does not seem logical that a list would vary on a subsequent occasion without people knowing. There is no doubt in my mind that people have been removed from the register without being informed or notified.
On the previous referendum, I thought the Irish and English versions were on top of one another and it was very difficult to determine what was on the paper. That led to a great deal of confusion. There was a huge number of spoiled votes in the previous two referenda of approximately 15,000. That is a great many where only a simple question is being asked. The possibility of having Irish and English separated on front and back should be looked at.
The real issue is a person's right to vote, especially those who have done so already and have a voting history at a polling station. Some mechanism must be put in place to allow them to vote again. We had a big story about the Bible being in every polling station. What is it there for if it is not going to be used to allow a person to vote whom the returning officer has seen vote in the past but whose name has been taken off the register? If the person swears on the Bible and it is confirmed by the people in the station, what more honesty and integrity can we have to allow a person to use the right to vote?
Before Mr. Falvey responds, I note that the clerk has brought to my attention the fact that the turnout in the case of the Seanad referendum was 1.24 million.
That is 39%. The number of spoiled votes in that referendum was 14,355. However, in the recent referendum on marriage equality the turnover was much higher at 60.52%.
The referendums on the Seanad and on marriage equality were the ones on which there was the most public attention. When the referendum on the Seanad took place there was also a referendum on the Court of Appeal but that received far less public attention, so we are focused in terms of democracy on the spoiled votes in the Seanad referendum. Similarly, in the case of the marriage equality referendum the referendum on age eligibility was given very little focus so we are focusing on the marriage equality referendum for comparison reasons. In comparative terms the number of spoiled votes is down by over one-third. That is very welcome as far as we are concerned. Obviously there is always room for progress but in a referendum where the turnout was increased by over 700,000 the number of spoiled votes was less. That is very encouraging.
Clearly, the dedicated Referendum Commission will examine and manage these matters on an ongoing basis, but it appears that considerable progress is being made and that is welcome.
Mr. Enda Falvey:
I will take the last point first. Both members referred to the spoiled votes. On this occasion the percentage of spoiled votes was well down on the number in the referendum on the abolition of Seanad Éireann. In fact, when one looks at polls taken together on the same day, this is the lowest percentage of invalid votes ever. That said, there is no clear relationship. To be fair, if those figures were higher I would be saying there is no clear relationship. It comes back to the original committee concern about confusion about the ballot paper. We have made changes to the ballot paper and it is nice to see that the figures are moving in the right direction. However, in the European Parliament elections there were higher figures altogether and there is no question of confusion there. We do not know why people spoil votes. Anecdotally, some people will be confused and some people will do it deliberately, but we do not know. I am not taking credit for a direct relationship between the improvement in the ballot paper and the figures, but it is encouraging to note it.
Deputy Wall mentioned the Bible and asked why it must be there. The Bible creates difficulties on a number of fronts. There were many complaints on the day about the presence of a Bible because some people might take offence at its presence. The Bible is there so that if a presiding officer feels that somebody should be asked to confirm their details, they can swear it on the Bible. However, there is no difficulty if one has no religious beliefs or if one does not wish to swear on the Bible. One can just make an affirmation to that effect. In our guidance we ask that 25% of people, on average, be checked for identity and that might lead to the use of a Bible for one reason or another. In a local community where many people know each other the need for the Bible in those cases should not arise because the personnel probably know many of the people who come before them.
One gets all sorts of opinions on the Irish and English issue. I always refer to Article 8 of the Constitution, which talks about their equal status. In fact, Irish is meant to have a greater status. It is very difficult for me to conceive of downgrading the Irish on a ballot paper. I am not saying I have a closed mind on it but that is my reasoning. On the specifics, when one looks at the ballot paper we used in the May referendums and compare it to the one used in the Seanad referendum, the gaps between the Irish and English were increased. We did so because the National Adult Literary Agency, NALA, and the National Council for the Blind of Ireland, NCBI, recommended to us that we make the gap as big as possible. We had the dilemma of making it as large as possible without making the ballot paper big and unwieldy, but there was an increase in the gap between the English and Irish on this occasion.
I will make two comments on the issue of removal from the electoral register. It is very frustrating and I can understanding how people would even feel embarrassed when they turn up at the polling station where they have voted for many years, and where they might even be well known to the presiding officer, but suddenly they are not on the list. It should not happen. People should not be removed from the list unless there is a good reason. Local authorities are asked, and indeed try, to maintain the register as best they can. At an operational level, it is far easier to keep somebody on the register than to remove them from it. The stories of people being removed from the register are obviously true but difficult to comprehend if there is no good reason for doing it. Unfortunately, when one turns up to vote, one is either on the list or not. Nothing can be done for the person at that stage, even though one has a moral right to vote and nobody wishes to disenfranchise anybody. The law states that one cannot the register at that point in the polling station. They are the facts and that is the law.
I apologise for being late. I welcome the fact that there is a report back on this. It is good to hear that action is being taken along the lines we and many members of the public suggested.
There is a big problem with the register. First, there is a cut-off date which is tied to the old days when everything was done with pen and paper. I accept that processing must take place and that there must be a cut-off date at some point, but we must seriously consider a rolling register or a register where the cut-off date is within a week of the announcement of an election or referendum, or something to that effect. Some council areas have used a supplementary register to facilitate that. However, the huge number of people who went on the supplementary register in the last referendum, in particular, shows that there is something wrong with the system we currently have, because that number of people were not captured in the normal register.
In Dublin, there were 15 enumerators who travelled around Dublin every year and called to every house in the city. If one was not at home the leaflet was dropped in the letter box and one sent it back. One stayed on the register regardless but lately, if one did not send it back the names were being deleted. The number of enumerators in the city is substantially reduced. I was told by a former enumerator that, in Dublin city, it is possible that two-thirds of the houses in the city will not receive a visit this year. That means two-thirds of the register is inaccurate inasmuch as the enumerators make it accurate. That is scary. I do not know whether it is due to the local authorities not complying fully with the work they are required to do.
I firmly believe we should return to the way the supplementary register was compiled. In the past, one was able to go on the supplementary register up to a week or ten days before the vote.
If one wants to vote in an upcoming election, one could be asked by the returning officer to put one's name on the supplementary register and one would have to go through the rigmarole of going to a Garda station and getting a garda to sign the form. When I was in Pearse Street Garda station a month ago, it took 20 minutes for a garda to come to the desk. If one was waiting for a form to be filled, one might say, "Feck that." That is especially the case for a group of people in society who do not want any engagement with the Garda. I suggested to various Ministers that anybody be allowed to be included in the supplementary register but that those on the supplementary register and claiming a vote be asked in a polling station for photographic identification. It should not be a case of “may be” but that one “will be" asked to provide adequate identification. That would deal with the problem identified in the first instance with the supplementary register when the change was introduced to prevent multiple or illegal voting. The change has had the effect of discouraging 18 year olds and other potential voters, including those who have moved house. I will not get into a discussion on the use of PPS numbers, but they could work if the current system was tweaked a little. In other countries, they delete them. In the North even, voters have to register every year. There is a campaign by the political parties in that regard, but it is also promoted by the civil servants that people register once a year. I consider this to be an onerous approach, but given the level of disquiet about people having their names taken off the register, the issue must be addressed.
Mr. Enda Falvey:
I take on board the points made about the register, which is a perennially difficult subject. The register has been in place for a long time and has both good points and bad. Members have articulated quite well a lot of the bad points. There is body of work that could be done to improve the register. That issue is on the agenda all the time. It is a case of having sufficient time and space to take on such a big project as would be entailed in the amendment of the register, but it is a project that would be worth doing. Some work has been done at local authority level. Reference was made to Dublin City Council. The Dublin authorities have been working on an electoral register improvement project, about which members might have heard. They are trying to move away from the current system. The intention is to use the best of technology to modernise it. They will trial run some of it in parallel with existing arrangements. A business case is in mind to see whether it could be used in other local authorities also. That work is ongoing underneath the surface and will bubble up eventually. Projects on the register will be undertaken as resources and priorities are determined by the Government.
Is there a problem with use of the supplementary register that is related to the Department? We could argue with the Minister about the supplementary register, but it is a political discussion.
People will not go the Garda. I might give them the forms, but they will not go to the Garda station. In the past it was a case of filling in the form and sending it. That was no bother, but now the system is different. In fairness to some gardaí, they arrange a clinic to deal with the issue. I think they did this prior to the previous referenda when they went to colleges.
Mr. Enda Falvey:
We receive representations about the register, the supplement to the register and the procedures governing them. We also receive suggestions like the ones made by the Deputy to the effect that we make it easier to be included in the supplementary register. It is the case that if one cannot get a garda to sign the form, one can go to the local authority as an alternative, but that may also involve a 20 minute wait. I do not suggest the system is perfect. The Deputy’s suggestion was not to abandon the current approach but to put an alternative system in place whereby one would be obliged to produce identification at a polling station. Taking all of that on board, the background to the issue with the supplement was that owing to the short period of time involved, there was a need to make sure the system was robust and not subject to any malpractice in comparison to the ordinary registration process.
I know from Dublin City Council that it put a huge burden on the franchise offices to deal with the issue in a very short space of time. They managed to do it, but if it is to be a regular feature of the system, it means that something is wrong. Councils might have to seek more money to do the work involved.