I. METHOD OF REGULATING ELECTIONS.
The function of the Joint Committee in relation to the first part of the Terms of Reference is to consider and to make recommendations on the method of regulating elections of those elected members of Seanad Éireann who are required by the Constitution to be elected from panels of candidates.
1. The Constitution provides (Section 1 of Article 18) that Seanad Éireann shall consist of 60 members, of whom 43 shall be elected from panels of candidates (paragraph iii of section 4 of Article 18). Subsection 1° of section 7 of Article 18 provides—
“Before each general election of the members of Seanad Éireann to be elected from panels of candidates, five panels of candidates shall be formed in the manner provided by law containing respectively the names of persons having knowledge and practical experience of the following interests and services, namely :—
(i) National Language and Culture, Literature, Art, Education and such professional interests as may be defined by law for the purpose of this panel;
(ii) Agriculture and allied interests, and Fisheries;
(iii) Labour, whether organised or unorganised;
(iv) Industry and Commerce, including banking, finance, accountancy, engineering and architecture;
(v) Public Administration and social services, including voluntary social activities.”
Subject to the provisions of Article 18 elections of the elected members of Seanad Éireann shall be regulated by law (subsection 1° of Section 10 of Article 18).
2. Seanad Electoral (Panel Members) Act, 1937 [No. 43 of 1937] hereinafter referred to as the Act of 1937, is an “Act to regulate for the purpose of the Constitution . . . . . . elections of those elected members of Seanad Éireann who are required by that Constitution to be elected from panels of candidates, to define the electorate for such elections, and to provide for matters incidental to or connected with such elections.”
3. The Act of 1937 provides (Section 9) for the setting up and maintenance of a register of bodies entitled to nominate persons to the panels of candidates for the purposes of every Seanad election. The register shall be in such form as the Seanad Returning Officer shall, with the approval of the Minister for Local Government, think proper.
Register of Nominating Bodies.
4. The Joint Committee recommend that a new register of nominating bodies be set up on the lines of that at present in being.
5. The Joint Committee favour, however, the removal of the limitation in regard to the number of nominating bodies which may be registered in the register in respect of each panel and the consequent omission of paragraph (h) of subsection (2) of section 9 of the Act of 1937 which is as follows :—
“the number of nominating bodies registered in the said register in respect of any particular panel shall be so limited that the full number of persons which may be nominated to such panels by nominating bodies shall not exceed thirty.”
At present, under the joint operation of this paragraph and subsection (2) of section 22, not more than 15 nominating bodies may be registered in respect of any one panel.
6. The Joint Committee also favour the discontinuance of the provision contained in subsection (3) of section 12 of the Act of 1937 which empowers the Returning Officer to disallow an application for registration made by
“(b) any body which appears to be representative of interests and services the representation of which is adequately provided for by a body or bodies already registered in the said register or whose application for such registration he has allowed.”
The Joint Committee recommend, however, the retention of paragraph (a) of the said subsection.
Applications for Registration.
7. It is recommended that all applications for registration in the register should be on a form prescribed.
8. Subsection (2) of section 9 of the Act of 1937 includes conditions for registration in the register. With a view to defining the conditions set out at paragraph (b) of subsection (2) more closely, it is suggested that paragraph (b) should be redrafted on the following lines:—
“No body shall be eligible to be registered in the Register in respect of any particular panel unless
(i) its objects primarily relate to or are connected with the interests and services mentioned in subsection 1° of Section 7 of Article 18 of the Constitution in respect of that particular panel; and
(ii) its activities are concerned mainly with those interests and services;
its members are representative of persons who have knowledge and practical experience of such interests and services.”
9. It is recommended that paragraphs on the following lines be added to subsection (2) of section 9 of the Act of 1937:—
“(A) The Seanad Returning Officer may refuse to register any body in the register unless—
(i) its organisation and direction are governed by Articles of Association or Rules which—
(a) provide for an Annual General Meeting to which all members shall be invited by a notice forwarding an Agenda which shall include the following items :—
I. Minutes of preceding meeting,
II. Presentation of Annual Report,
III. Consideration of Statement of Accounts as certified by the Auditor,
IV. Election of executive committee,
V. Election of Auditors.
(b) made adequate provision for the carrying on of the business of the body by an executive committee, and
(c) provide for the audit and certification of accounts by a public auditor or other qualified person;
(ii) its average revenue from subscriptions for the five years immediately preceding the application has not been less than £250 per annum, or in the case of a charitable organisation, not less than £1,000 per annum.
(B) The conditions above as to election of auditors, provision for audit and annual revenue shall not apply in the case of such bodies engaged in the promotion of scientific or general knowledge as in the opinion of the Seanad Returning Officer are of national importance.”
10. It is recommended that a new subsection be inserted immediately after subsection (2) of section 9 of the Act of 1937, providing that notwithstanding the above provisions, the following bodies shall be eligible for registration on application :—
(i) bodies established under an Act of the Oireachtas for any of the following purposes :
(a) the regulation or control of professional qualifications or conduct;
(b) the provision or improvement of cultural or educational facilities;
(ii) any cultural, educational or professional organisation in receipt of a grant voted specifically for it by the Oireachtas, provided that in allocating such bodies to panels appropriate to them, the Returning Officer shall carefully distinguish between those which are purely educational and cultural or which are mainly concerned with the conduct and professional discipline of their members and those which are mainly concerned with the economic interests of their members and shall not register any body of the latter class in respect of the Cultural and Educational Panel but in respect of that one of the remaining panels with which it is most intimately associated.
11. It is recommended that it should be made clear in any amending legislation that before any application for registration is allowed the Seanad Returning Officer shall satisfy himself that the applicant fulfils the conditions for registration, the onus of proof in regard to the application resting on the applicant.
It is further recommended that it should be open to the Returning Officer to give as his decision on any particular application that he is not satisfied that the applicant has proved his case and it is suggested that he should not be obliged to state the reasons for this decision.
Appeals from Decisions of the Returning Officer.
12. In pursuance of sections 13 and 18 of the Act of 1937, in the event of an appeal having been made against a decision of the Returning Officer in connection with the annual revision of the register of nominating bodies, an appeal committee, consisting of 15 members of Dáil Éireann shall be appointed by Dáil Éireann to consider the appeal. No decision of the Returning Officer shall be reversed, unless at least nine members of the appeal committee vote in favour of reversal.
The Joint Committee recommend, in substitution for the above committee, an appeal board consisting of the Chairman and Deputy Chairman of each House and, as Chairman of the board, a Judge of the Supreme Court or the High Court, who shall be nominated by the Chief Justice. It is proposed that the decision of the Returning Officer stand unless a majority of the members of the appeal board are in favour of its reversal.
13. The Joint Committee recommend that notice of the appeal shall be in writing and that it shall state the grounds on which the appeal is made. It is the desire of the Committee to emphasize that no ground of appeal other than the ground or grounds set out in the written appeal should be admissible and that no evidence which was not made available to the Returning Officer should be allowed on appeal.
Nominations by Nominating Bodies.
14. The Joint Committee recommend the continuance of the system of nomination of candidates to the panels by the registered nominating bodies.
15. It is proposed, however, that the list of nominees of the nominating bodies to a panel should be revised by a nominating committee for that panel formed somewhat on the lines prescribed in section 9 and subsequent sections of the Seanad Electoral (Panel Members) (Bye-Elections) Act, 1940 [No. 20 of 1940], hereinafter referred to as the Act of 1940.
16. It is proposed that the revision be so conducted that the number of candidates to be selected by the nominating committee for each panel shall not exceed the number of members of Seanad Éireann to be elected from that panel by more than five. Thus, for the five seats to be filled from the cultural and educational panel, the total number of candidates to be selected by the nominating committee for that panel would be 10. In the case of the agricultural panel, the total would be 16; the labour panel, 16; the industrial and commercial panel, 14; the administrative panel, 12. The total number of candidates from the nominating bodies on the register would not, therefore, exceed 68. [Section 44 of the Act of 1937.]
17. The Joint Committee considered further the question of the formation of the nominating committees. They recommend that each registered body should be entitled to appoint five persons to be members of the nominating committee instead of three persons as at present [Section 10 (1) of the Act of 1940].
18. As regards the procedure for the appointment of such five persons to be members of a nominating committee it is proposed that the power provided by section 11 (1) of the Act of 1940, by which a registered nominating body may at any time revoke any appointment made by it of a member of a nominating committee, should be withdrawn.
It is proposed that at its annual meeting each registered body shall (1) appoint the date for its next annual meeting, which date shall not be more than 400 days nor less than 330 days (in both cases including Sundays) after the date of the annual meeting at which such appointment was made; (2) select five persons to be members of the nominating committee until that date.
The five persons thus selected shall serve as members of the nominating committee until the date appointed under (I) for the annual meeting of the registered body concerned and thereupon unless re-elected at that annual meeting shall cease to be members of the nominating commmittee.
A member of a nominating committee shall cease to be a member of a nominating committee on the happening of any of the following events:—
(a) his death;
(b) the nominating body by which he was appointed ceasing to be registered as a nominating body;
(c) his being adjudicated bankrupt or convicted of an indictable offence;
(d) his being expelled from, or having resigned from member-ship of, the nominating body.
The effects of the adoption of this proposal would be (i) that the members of the nominating committee would be selected in a most formal way at the most important meeting of the nominating body for the year, and consequently, the selection of members of the nominating committee would be regarded by the nominating body as business of the first importance, and (ii) the personnel on the register would not be subject to change at irregular or unforeseen intervals by the arbitrary action of a nominating body.
19. The Joint Committee next considered the question of the method by which the respective nominating committees should function in revising the lists of candidates presented to them by the nominating bodies. By reason of the importance of the process of selection involved and the desirability of ensuring that the candidates so selected should be as fairly representative as possible of the general interests and services for which the panel was being formed, it is recommended that the selection be made by election in accordance with the principles of proportional representation by means of the single transferable vote The adoption of this method of election would preclude a majority bloc in a nominating committee from selecting all or a disproportionate number of candidates such as might happen if the selection were to be made by the single non-transferable vote.
The Joint Committee recommend that the quorum of each nominating committee be fixed by law.
20. Section 14 (c) of the Act of 1940 provides that, in addition to the Seanad Returning Officer and his assistants, the members of the nominating committee concerned may be present at the taking of the poll and the counting of the votes. It is suggested that it would be an improvement to provide that only the Seanad Returning Officer and his assistants and the candidates for nomination (or their duly appointed representatives) should be entitled to be present at the counting of the votes.
Nominations by Members of the Houses of the Oireachtas.
21. Under the present system nominations to panels may be made by members of Dáil Éireann only. Under section 25 of the Act of 1937 any person may be nominated by not less than two members of Dáil Éireann to any of the panels but no member of Dáil Éireann shall join in the nomination of more than one person at any particular Seanad election. It is now proposed that Senators as well as Deputies should have the right to nominate candidates but that not less than four members of the Houses of the Oireachtas, irrespective of whether they are members of Dáil Éireann or Seanad Éireann , be required for each nomination and that no member of either House join in the nomination of more than one candidate. Under this proposal, as Dáil Éireann consists of 138 members and Seanad Éireann of 60 members, the total number of candidates nominated by members of the Houses of the Oireachtas would not exceed 49 (69 under the present system).
Ex-officio Nominations to the Administrative Panel.
22. The Joint Committee recommend that the provisions of section 26 of the Act of 1937 regarding ex-officio nominations to the administrative panel should no longer apply. They have not hitherto been operative.
23. It is proposed that the division of each panel into sections, the nominating bodies sub-panel and the Dáil sub-panel, which latter, if the recommendations of this Joint Committee are adopted, will become the Houses of the Oireachtas sub-panel or, shortly, the Oireachtas sub-panel, should be continued.
The desirability of retaining this division was discussed by the Joint Committee at considerable length and eventually was unanimously agreed to by them subject to the amendment of the provisions of section 44 of the Act of 1937 as follows :—
(i) of the five members to be elected from the cultural and educational panel, at least two to be elected from each of the sub-panels,
(ii) of the eleven members to be elected from the agricultural and the labour panels, respectively, at least four to be elected from each of the respective sub-panels,
(iii) of the nine members to be elected from the industrial and commercial panel, at least three to be elected from each of the sub-panels,
(iv) of the seven members to be elected from the administrative panel, at least three to be elected from each of the sub-panels.
Qualifications of Candidates.
24. Paragraph (b) of subsection (3) of section 28 of the Act of 1937 provides that at the completion of the panels, the Returning Officer shall take the several provisional panels successively one by one and shall, in respect of each provisional panel “examine the qualifications of each person whose name remains on such provisional panel . . . . and shall delete from such panel the name of every such person in respect of whom he is not satisfied that such person is qualified under subsection 1° of section 7 of Article 18 of the Constitution [quoted at paragraph 2 of this report] to be on the panel to which such provisional panel relates.”
Subsection (1) of section 30 of the Act of 1937 provides that the President of the High Court or some other judge of the High Court nominated by him shall attend at the completion of the panels and there sit and act as judicial referee for the purposes of the Act.
Subsection (2) of the said section 30 of the Act of 1937 provides that the Returning Officer may, on his own motion, and shall, if so requested by any person whose name is on the provisional panel for the time being under consideration, or by the agent of any such person, refer to the judicial referee any question arising during the completion of the panels in relation to . . . . . the qualifications of any person for a panel, the statement by the Returning Officer of such qualifications, or any other matter connected with the provisional panels.
The Joint Committee considered at some length whether or not they should recommend the definition by the legislature of “knowledge and practical experience” in relation to the several interests and services. The expression was vague, but, nevertheless, it was clear that these qualifications were prescribed in the Constitution for the purpose of securing that the panel members of Seanad Éireann would be capable of contributing to the discussions of the House and imparting to their fellow-members well-informed advice and judgment in connection with the particular interests and services which they claimed to represent. The Act of 1937 puts the onus on the candidate to establish to the satisfaction of the Returning Officer or, where referred to him, the judicial referee that he possesses the necessary qualifications.
The Joint Committee decided eventually not to make any recommendation for the definition of the said expression “knowledge and practical experience.”
25. In connection with the provisions for the ruling by the Returning Officer on nominations, contained in section 28 of the Act of 1937, it is recommended that where a candidate intends to object to the allowance of a nomination, a statement of the objection in writing should be delivered to the Returning Officer two days before the ruling on nominations takes place.
With a view to rendering this provision effective it is recommended that provision be made whereby any candidate nominated for a panel shall be entitled to inspect the nomination paper of any other candidate nominated for that panel.
26. Further, on the reference of a question to the judicial referee, in pursuance of subsection (3) of section 31 of the Act of 1937, evidence not made available to the Returning Officer should not, it is recommened, be submitted unless by leave of the judicial referee.
27. The Joint Committee recommend that provision be made on the lines of section 29 of the Act of 1937 to ensure, for the purposes of the election, that the number of candidates nominated for election to any panel shall exceed the number of members of Seanad Éireann required to be elected from such panel.
Separate Panel Elections.
28. The Joint Committee recommend that there should be a separate election with a separate ballot paper for each panel and that each elector should have a separate vote for each panel.
This proposal, if adopted, will facilitate the electors in voting and the Seanad Returning Officer in counting the votes. At the same time it will increase the quota necessary for election to any panel considerably over that required under the present system of one election and one vote for all five panels combined.
29. Section 5 of Article 18 of the Constitution, provides that “every election of the elected members of Seanad Éireann shall be held . . . . by secret postal ballot.”
(I) In lieu of the provisions of sections 42 and 43 of the Act of 1937 relating to the method of voting by the electors, the Joint Committee recommend the adoption of a system on the following lines. In connection with an election to Seanad Éireann from panels of candidates the Seanad Returning Officer shall send by registered post to each person whose name is on the electoral roll for that election, a notification that a ballot paper and a form of declaration of identity addressed to him can be obtained by calling at the office of the local returning officer appointed for the county on one or other of a number of dates to be mentioned and between hours specified.
The elector, having received the ballot paper and a form of declaration of identity, shall, without leaving the office and in the presence only of the local returning officer and, if required, an assistant officer appointed by the local returning officer, sign the form of declaration of identity, mark the several ballot papers and seal those documents in the official envelope addressed to the Seanad Returning Officer, which is then to be handed to the local returning officer for the affixing of his certificate thereon and finally to be posted by the elector in the post office box provided by the postal authorities for that purpose and conveyed forthwith on the close of the poll by the postal authorities to the office of the Seanad Returning Officer.
The certificate referred to is a certificate by the returning officer that the requirements above mentioned have been complied with. The postal box when closed should bear a similar certificate by the returning officer.
(II) The Joint Committee further recommend that no ballot paper posted otherwise than in a postal box set aside for the purpose shall be valid.
(III) It is recommended also that the poll should be open for at least a week.
(IV) It is further recommended that Deputy and Senator electors be empowered, alternatively, on reasonable notice being given to the Seanad Returning Officer, to receive and mark their ballot papers at the office of the Seanad Returning Officer and to post them in the post office box provided by the postal authorities for that purpose.
II. THE ELECTORATE.
The second part of the terms of reference has to do with the definition of electorate for the elections of those elected members of Seanad Éireann who are required by the Constitution to be elected from panels of candidates.
30. The Joint Committee recommend that the electorate for the elected members of Seanad Éireann who are required by the Constitution to be elected from panels of candidates should consist of the members of Dáil Éireann, the members of Seanad Éireann and all the members of the Council of each County and County Borough, including the members of the Council of a County and County Borough removed from office in pursuance of Part IV of the Local Government Act, 1941 [No. 23 of 1941]. This, if adopted, would replace the present system, defined in the Act of 1937, which confines the electorate to the members of Dáil Éireann and to seven members elected by the Council of each County and County Borough. The new electorate would be considerably larger than the present. It would consist of 138 Deputies, 60 Senators and 779 members of County Councils and County Boroughs, making a total of 977 less deductions due to overlapping membership (if any) as between the above bodies.
III. CASUAL VACANCIES.
31. Paragraph 3° of section 10 of Article 18 of the Constitution provides that “Casual vacancies in the number of the elected members of Seanad Éireann shall be filled in the manner provided by law.” The Act of 1940 provides for the filling of such casual vacancies occurring amongst those members of Seanad Éireann who are required by the Constitution to be elected from panels of candidates.
The Joint Committee recommend that the above Act should be amended to provide that if the vacancy arises from the death, resignation or disqualification of a nominee of a nominating body, the vacancy shall be filled by direct election to Seanad Éireann of the nominating committee (as proposed to be extended, under the foregoing proposals) constituted for the panel in respect of which the nominating body is registered; the election to be conducted in accordance with the principles of proportional representation by means of the single transferable vote; nominations of candidates for such election to be made by members of the nominating committee and to be subject, before being submitted for election, to the ruling of the Seanad Returning Officer on nominations, after the manner set out in section 21 of the Act of 1940.
If the vacancy arises from the death, resignation or disqualification of a nominee of members of the Houses of the Oireachtas, it is proposed that the vacancy be filled by election for which the members of Dáil Éireann and Seanad Éireann only shall be the electorate; candidates to be nominated in the manner prescribed in Part III of the Act of 1940 as modified to provide that members of either House may nominate or assent to a nomination.
SEANAD RETURNING OFFICER.
32. The Joint Committee recommend that the Clerk of Seanad Éireann shall be the Seanad Returning Officer. In the absence of the said Clerk through illness or any other cause, it is suggested that the Clerk-Assistant of Seanad Éireann shall function in his place.
33. The report of the Joint Committee, though in certain respects a compromise between divergent views, has been arrived at without a division and the Committee believe that their suggestions, if carried into effect by legislation, will prove to be a definite improvement on the present method of election. At the same time the Committee desire to emphasise their view that it is unlikely that a final solution of all difficulties has been reached. Experience in the working of the proposed system will probably reveal defects and suggest improvements.
34. It should also be mentioned that some members of the Joint Committee wished to raise matters relating to a radical reconstitution of the Seanad as a whole; but the Chairman ruled that the Committee were precluded by the terms of reference from considering such matters.
SUMMARY OF RECOMMENDATIONS.
35. The following is a summary of the principal recommendations of the Joint Committee:—
PROINNSIAS O FATHAIGH,
6ú Bealtaine, 1947.