Dick Roche (Wicklow, Fianna Fail)

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.

See this speech in context