Eamon Gilmore (Dún Laoghaire, Labour)

I will abide by your ruling, a Cheann Comhairle, because Deputy Allen has already put the appropriate paragraph ofthe Comptroller and Auditor General's correspondence on the record of the House, so it is not necessary for me to repeat it. There may be arguments about the merits or otherwise of the concerns raised about electronic voting — whether the testing has been adequate, whether there should be independent monitoring of that testing, whether there should be a paper trail created by individual voters which can be audited, whether the software can be corrupted in any way and, ultimately, whether the result announced after the electronic vote accurately reflects the intentions of the voters. One can debate this at considerable length. I give considerable weight to the reservations that have been expressed. However, one issue is not debatable. In any democracy worth its salt, no Government which had a respect for democracy and for the parliamentary process would insist, as this Government does, on proceeding with fundamental changes in the way people cast their votes without the general agreement of those engaged in the political process.

This Government intends to proceed to change the way in which people vote in the face of opposition and reservations from every Opposition party in this House. If we heard of this happening in some former South American dictatorship — that the Government, in the face of opposition from everybody else engaged in politics, was proceeding with changes in the voting system, and that the Minister with overall responsibility for seeing that through was none other than the Government party's director of elections — we would be sending for the UN monitors to investigate whether elections were being conducted in a free and fair way. This is not a question of the Government pushing through a Bill to which the Opposition is opposed. It is an issue at the heart of democracy. The Government's decision to press ahead with this is reflective of an arrogance that is becoming increasingly insufferable.

Where are the watchdogs of the Government? The PDs offered themselves to the people in July 2002 on the basis that they would ride shotgun with Fianna Fáil. The Minister for Justice, Equality and Law Reform climbed a lamppost and successfully persuaded a sufficient section of the electorate that the PDs would keep an eye on Fianna Fáil. There would be no Fianna Fáil excesses while the PDs were keeping an eye on them. Where have they been on this issue? Why are they not now doing the job they were elected to do, which was to monitor the integrity of the democratic system? They have been silent and invisible on this issue. In the course of this debate — one of the last opportunities we will have to discuss this in the House before the local and European elections — I would like to hear at least one representative of the Progressive Democrats justify its members' silence on this unilateral change to the voting system.

I draw the Minister of State's attention to where this legislation will end up. The way in which it is proposed to introduce electronic voting for June's European and local elections cannot be done without primary legislation. If the Government proceeds with its proposal, it may run into constitutional difficulties in the courts. I understand that the legal position on electronic voting is that the Electoral (Amendment) Act 2001 enables the Minister for the Environment, Heritage and Local Government to make ministerial orders which trigger the use of electronic voting in specific elections and in named constituencies or electoral areas. Specific ministerial orders had to be made, for example, to allow electronic voting to be used in three constituencies at the last general election and in a number of constituencies in the second Nice referendum.

However, no regulations or ministerial orders have yet been made to allow electronic voting to be used in next June's European and local elections. On 18 December 2003, the Minister for the Environment, Heritage and Local Government, Deputy Cullen, in reply to parliamentary questions tabled by Deputy Finian McGrath and myself, stated that, "An order dealing with use of electronic voting and other arrangements for the 2004 polls will be made in due course." That order has not yet been made. On 28 Wednesday 2004, I asked the Taoiseach in the House:

I understand the Minister for the Environment, Heritage and Local Government is required to make regulations governing the operation of the local elections in June which would include the provisions for electronic voting. When will those regulations be laid before the House?

The Taoiseach did not appear to know if such regulations were required. When I pressed the matter he said, "I have been told by the Minister that there are no regulations. Guidelines have been issued." It appears that the Government is at sixes and sevens as to whether regulations are required.

Tomorrow, the Government intends to launch an expensive public relations campaign on electronic voting for the June local and European elections for which there is, as yet, no statutory authority, and about which the Government seems, at best, confused. Whenever the Government gets its act together on drafting the ministerial order, it will find that it has a constitutional problem. The required ministerial order will have to be made under section 48 of the Electoral (Amendment) Act 2001. Section 48 of the Act states:

Subject to subsection (3), the Minister may by order make such adaptations of, or modifications to, the Presidential Elections Act, 1993, the European Parliament Elections Act, 1997, the Local Elections Regulations, 1995, the Referendum Act, 1994 . . . [it lists other enactments] . . . as will enable voting and counting of votes at the relevant election or referendum under the said enactment or enactments to take place using equipment approved for use under this Part.

Recently, the courts have found, as in the Carrickmines case, that the use of ministerial orders to modify primary legislation is not constitutional. It follows, therefore, that if the Government attempts to provide for electronic voting in June's elections by means of ministerial order under section 48 of the Electoral (Amendment) Act, it will be open to constitutional challenge in the courts. The Government is proceeding to spend money on the electronic voting system before the necessary statutory instruments have been laid before the House. This is also before the House has the opportunity to consider the statutory instruments for the 21 sitting days, which we are entitled to do before we decide whether to rescind them. I also question if this is the proper use of public funds. The Government is proceeding to spend money in engaging public relations consultants to advertise electronic voting and persuade the public that it is good before the statutory instruments which give effect to it have been laid before the House.

If, and when, those statutory instruments are made on the basis of section 48 of the Electoral (Amendment) Act 2001, the Government will leave itself open to a court challenge on the constitutionality of such ministerial orders. Given the precedent that has now been set in the Carrickmines case, there is the possibility that all the ballyhoo about electronic voting will come to nothing. The last constitutional challenge to an electoral matter was decided by the High Court on the eve of polling day. In what situation will we find ourselves if, shortly before polling day, the courts decide that the legislation has not been properly made?

Many experts have publicly raised reservations. The Opposition is uneasy and does not want electronic voting to proceed in the forthcoming elections. The legislative instruments to give effect to electronic voting have not yet been laid before the House. There is the possibility that when they are made, they will be found to be unconstitutional. For these reasons the plans to proceed with electronic voting for the forthcoming European and local elections should be suspended and I will table an amendment to that effect on Committee Stage.

Whatever about the technical issues that arise with electronic voting and the legal and constitutional issues that may be addressed elsewhere, there is also a political aspect to this issue. Essentially, it is about how the Government views democracy. It is about whether there is any respect in the Government for Opposition viewpoints and the will of this House in its totality. That is not just expressed by the majoritarian approach by the Government that as long as it gets numbers in divisions, it can proceed with anything it wishes. The Government is playing a dangerous game with democracy and public confidence in the electoral process by insisting on changing the way we vote without a sufficient level of political consensus.

There is time for this process to be put on hold. There will be no loss of face and it will do much to strengthen confidence in politics if the Government, even at this late stage, were to do so. In any event, the Government will come unstuck on this issue in the courts.

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