Gerald Nash (Louth, Labour) | Oireachtas source

I very much welcome the Bill. As the Minister knows, it has been a very long time coming. Many of us in the Chamber are around politics a long number of years. I would be interested to see how many times the electoral commission has been mentioned in the Official Report. I remember in 2008 and also in 2012 my colleague and a fellow Cork man, former Deputy Ciarán Lynch, developed two Private Members Bills to establish an independent electoral commission but it has been part of the political folklore in this country for many years, just like the Kenny Report and many other mythical, almost legendary, proposals. I am pleased that finally we are getting around to legislating for an independent electoral commission.

A lot of work was done in this space by officials in the Department and Ministers in the 2011-2016 Government and I was very disappointed to see the Government from 2016-20 was effectively a reform-free zone. It decided not to proceed with the idea of an electoral commission. Nevertheless, we are here now. It is to the Minister's credit that we are now debating Second Stage of this very important legislation.

There are several parts to the lengthy Bill with four overarching themes, the first of which is the establishment of the electoral commission itself. It also covers changes to the way the electoral register is to be compiled and managed and the crucial area of the regulation of online political advertising, something which interests us all, will finally be addressed in some way. The protection of the integrity of elections, which is critically important, is also covered by the Bill.

The creation of the independent electoral commission is a long time coming. It will be an independent body and will subsume all the functions of the Referendum Commission and the Constituency Commission. That is a very good thing indeed. I am also pleased that the commission will have a research and, dare I say it, an advocacy function. It is important that a commission of this nature has that kind of function. It can only be a good thing for the health or our democracy and to provide an evidential basis for ongoing debate and informed policy development on elections in this country.

I know that time limits are being placed on membership of the commission. That is important but there must also be a balanced approach and the Minister is providing for a degree of overlap allowed for members. An important commission like this must retain experience and consistency of membership as far as it can, particularly in the early years when it is bedding down.

I would be interested to hear from the Minister how the electoral commission and the Standards in Public Office Commission, SIPO, will overlap. These are key institutional arrangements which, taken together, form a very important bulwark and a framework in the regulation and oversight of politics and the conduct of politics and public life more generally in this country. However, it is strange that the commission is not being given any function in the actual running of elections and referendums. That is not best practice and requires explanation. It is a little bizarre that the function for the actual running of the elections will still remain with the Minister and the Department. It is odd that the new commission is being set up yet a candidate in the elections, that is the Minister himself, still gets to manage the overall process. I am not suggesting for one minute that there would be any interference in the process - no one would ever say that - but it is unusual that we are setting up a commission but the franchise section of the Department of Housing, Local Government and Heritage will ultimately have responsibility for aspects of the election. Why not give all that function to the electoral commission? It is not either being given SIPO's functions around regulating political funding or electoral expenditure except for a new function around online political advertising. Apart from creating an administrative overlap between the new commission and SIPO, it means that an opportunity to really overhaul and reform the rules on political funding and expenditure is being lost.

That said, much of what is in the Bill is very welcome. It represents a combination of some of the positions taken by many, if not all, of the parties in this House over the last couple of decades. Overall, however, it is a cautious, toe-in-the-water proposal that seems to be designed to have as little impact as possible on many of the existing structures and badly needed reform such as that of SIPO and the franchise section of the Minister's Department. The problem there probably arises from the fact that SIPO is seen to be a creature of the Department of Public Expenditure and Reform and not of the Department of Housing, Local Government and Heritage. A more radical and efficient proposal would be to strip the Minister of election management functions, merge all the new functions with those of SIPO, perhaps with a stripped down membership, and then staff the body with civil servants transferred out of the franchise section. The opportunity could be taken to update and reform the ethics and standards side of SIPO's remit at the same time. All that work has been done and was presented in the Public Sector Standards Bill 2015 by Deputy Howlin when he was Minister for Public Expenditure and Reform. That Bill was brought to Second Stage but was allowed to lapse by the 2016-20 Government. Its ambitions are still relevant now, if not more so. Many of the features of that Bill can be read in the recommendations made every year in SIPO's annual reports. Labour also believes the commission should be given the power to regulate or at least provide a framework for election debates. The composition of TV debates at election time always gives rise to concern. If you are excluded, as Sinn Féin was at the early stages of the last general election, it can be used to a party's advantage and create some momentum behind its campaign. That is understandable. Every party in that position would do the same. We have seen that in the recent past.

Debates are regulated in the US by the debates commission. If we are now regulating paid-for online material it would be no extra burden to take on the part function, at least, of managing the TV party leaders debates with, for example, the input of the Broadcasting Authority of Ireland. The electoral commission should examine this area. I ask the Minister to consider an enabling provision for the regulation of electoral debates where the commission could make recommendations or at least that national broadcasters' plans be submitted to the commission for review on the grounds of fairness and equity.

The commission might also be well minded to look at the thorny question of the impact of opinion polling during an election period on the outcome of an election and whether they should be regulated. Opinion polls are a very important feature of election coverage in Ireland and inform our public debate to a degree. Arguably they should be subject to some form of regulation. Many polling companies are public about their methodology and carry out their work to European Society for Opinion and Marketing Research, ESOMAR, and Association of Irish Market Research Organisation, AIMRO, guidelines but there is no statutory regulation of any description in this country. At a minimum they should be obliged to employ a trained statistician on staff. The reality is that the publication of national and individual constituency polls can influence the outcome of elections. Polls are also used to influence policy and they help to shape political narratives. I am not for one minute advocating a ban on publication of polls during an election period, but there should be some level of regulation as misleading polls can shift public opinion in the very same way that unregulated online material can. We are trying to achieve that objective and I ask that the commission look at the prospect of developing a framework for the regulation and management of opinion polling during an election period. We have all seen in our constituencies where constituency polls say one candidate is safe and another is not and to vote for that candidate.

Old research by the Oireachtas Library and Research Service from 2009 indicated 16 of the 27 EU countries ban reporting of polls, though timeframes range from a full month to just 24 hours before election day. Only three countries, namely, Italy, Slovakia and Luxembourg, have bans of more than seven days. The commission should give this matter some thought when it is up and running and at least carry out some research, as part of its new research function, to inform the debate.

It is self-evident we need to reform how we compile and manage the register. It has been unsatisfactory, to say the least, for a long time. We are finally entering the modern world when we allow people to register online and I am pleased to see a preregistration opportunity will be provided to 16- and 17-year-olds. We also have to make it much easier to enable all of those who want to vote to do so. Increasing opportunities to vote by post by proxy are important and that has been referenced by Deputies who have spoken previously. Of course, we do not want to see the postal or proxy voting system open to abuse in any way but we all know situations, and the Minister will know himself from his own constituency and day-to-day work, that some people may be out of the State for short periods and are then not able to vote. They may be out for work or for a caring reason. They may be out for a whole host of reasons across the whole gamut of the human experience and this is really frustrating for them and is very frustrating for all of us as candidates. Will some more changes be considered here to enable more circumstances to be covered by postal voting? If we are in the business of maximising participation, we should give this greater consideration. The opportunity to register anonymously, with certain controls, is enlightened. It genuinely is. Some lessons have been learned from what happens in other jurisdictions. In our work, I would say we have all encountered situations where there are risks to someone’s safety and security in terms of public knowledge in respect of where they live and so on and this is a really welcome measure, as are the arrangements for those of no fixed address.

We cannot have this debate without looking at whether we should and how we ought to extend the franchise. Should we look at lowering the voting age to 16 years? It is a very live debate. There is a lack of ambition, quite frankly, in this Chamber and within the Government about the idea of lowering the voting age to 16 years. The Bill solely provides for preregistration for 16- and 17-year-olds. We should be looking at reducing the voting age and this is a great opportunity to do something and maybe it is a missed opportunity in the context of this Bill. We are looking at modernising how we register and enroll 16- and 17-year-olds when they get to 18 years but we are not talking at all about extending the franchise to them. I think 16- and 17-year-olds are in a much better position to assess political candidates, political parties and make decisions than I may have been at that age, quite frankly. They should be given the opportunity to do that or at least we need to have a serious informed debate on that proposition. Perhaps the electoral commission can help to facilitate that debate in an informed way.

On online advertising, it has been abundantly clear for many years that the electoral process and campaigning and decision-making more generally is vulnerable to the completely unregulated wild west that is the online world. Online platforms simply have no conscience whatsoever. They have no morality and no ethics; they are there to make profit and the truth comes all too often in last place. We have seen how nefarious influences have thrown money at targeted social media campaigns to deliver earth-shattering, disruptive epoch-making events such as Brexit and the election of far-right nationalists across the world. We have all seen the impact of misinformation, disinformation and targeted, paid-for campaigns that set out to not just tackle ideas and policies, which one might argue is fair enough, but often to discredit public figures, political parties and candidates themselves. We did a good thing many years ago by restricting political advertising in the broadcast media. It ensures a somewhat level playing pitch for parties, candidates and other actors in civil society. While this Bill has decided not to place an all-out ban on political advertising online for the election periods, it proposes to at least regulate and insist on transparency from both the platforms and the candidates, political parties, third parties and others. At least in the future we will know who is paying for a campaign, what it costs and who is being targeted with the message. The relevant provisions of the Bill set out in detail how this will work, who is responsible and the responsibilities of candidates, parties and the platforms themselves.

Key to the success of this new system will be a credible enforcement and compliance system. The Minister might elaborate on how he envisages the commission taking a proactive oversight role rather than it being merely reactive to complaints of non-compliance during an election period. In other words, does he see the commission being in position to initiate actions itself or is it restricted to doing so only when a formal complaint is made to it? Speed and taking initial action is also the essence, especially during an election period. Will the Minister reassure us that if a party, candidate or platform is non-compliant, it will not take a months-long investigation to take down online ads? This has to happen quickly, as we all know the dynamic of an election or referendum campaign and how that could take on life of its own and how disruptive something like this can be to transparency and fairness in the electoral process.

In addition, is the Minister satisfied the forms of fines and sanctions available to him in this Bill will be enough to ensure the Facebooks and the Twitters of this world will fear the sanctions if they are found to be non-compliant with the legislation? There has also been a general discussion on the fact these measures will only be in place for the duration of a formal election period. That concerns me, quite frankly. These measures will not apply at any time outside of an election period. We all use social media platforms to engage and keep our constituents informed. Most of us in this House and elsewhere, if not all, do this honestly and with integrity. We do it transparently and we all use platforms occasionally for paid targeted campaigns to get the message to those who may need to understand that message and see that message. We do that to assist our constituents. To be fair to the platforms, some of them have made some improvements and additions to their processes to make them more transparent but more can be done. It would be a good idea that a general obligation be placed on all those taking out paid campaigns that all political advertising be required to comply with conditions that this Bill will attach only to election communication. This is something the system should not rule out and I ask the Minister to signal his intention in this regard.

Strong legal frameworks governing standards and ethics in public life, transparency in lobbying and decision-making, freedom of information laws, anti-corruption measures and taking money out of politics are all measures delivered by my own party over the decades and integrity and clean politics is absolutely everything, but there were still gaps that need to be closed. We are only too aware gaps can be exploited and this has happened in the case, for example, of Sinn Féin’s acceptance of a bequest worth €4 million from the late William Hampton. The Minister will remember that bequest was explicitly meant for Sinn Féin in this jurisdiction. It could not be accepted here under our strict donation laws where a limit of €2,500 is placed on a corporate donation. Instead, this donation was funnelled to other side of the Border where there are no such limits on donations once the person in question is on the UK register. Nothing unlawful was done in that regard. I want to make that clear. It certainly was not within the spirit of the legislation that governs the conduct of politics and political financing in this jurisdiction and it took advantage of the lax laws in the UK. My party examined this. We took it very seriously and corresponded with the Standards in Public Office Commission and indeed with the UK regulator. Any party registered in both jurisdictions on this island could handle that donation totalling €4 million in the same way Sinn Féin did. As I said, there was nothing unlawful about that and I am not claiming it is unlawful. Fianna Fáil is also registered in the North, to the best of my recollection, so the Minister’s party could do this too if it were to decide it wanted to accept a donation up there rather than down here to circumvent the laws we have in place. I ask the Minister if this is an issue he examined in this Bill. Is it something he is considering tackling with, for example, the Department of Public Expenditure and Reform? The Minister’s remarks mentioned flagging further amendments on electoral funding to protect our State from malicious interference in our democratic system. It would be useful if he could elaborate on that when he has the opportunity to respond because these are the kinds of issues we need to take very seriously in this jurisdiction if we are to be true to the principles and philosophy of ethics in public life and the fair financing of politics in this country.

The Labour Party will work with the Minister to strengthen this Bill. I also agree with the remarks made by Deputy Ó Broin earlier that it would be useful to have an engagement with departmental officials before Committee Stage when we could possibly address some of the concerns we have in order that the legislative process can be completed swiftly. We are all anxious to get this long-awaited legislation over the line.

I congratulate the Minister on this legislation, notwithstanding the concerns we have about it in some respects. I especially want to congratulate the officials on producing this very important body of work which can be revolutionary in terms of how elections are conducted in this country.

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