Get up, stand up
The recently published Electoral Reform Bill is set to bring about significant change to many aspects of the electoral system in Ireland. Jennifer Kavanagh casts her vote.
The long-awaited Electoral Reform Bill 2022 was recently published, following on from the heads of bill, which were released in 2021.When enacted, the bill will change many things about the electoral system in Ireland, including registering to vote, the maintenance of the register of political parties, the creation of online political advertising regulations, and – most importantly – the creation of a full-time Electoral Commission for Ireland for the first time.
The legislation covering the regulation of elections in Ireland stems from the general provisions of article 16 of the Constitution, which are fleshed out in the Electoral Acts 1992-1997 and their various piecemeal amendments over time. However, there is a need to modernise and update various issues, as addressed in the 2022 bill, and to create this new Electoral Commission.
The essential function of any electoral management body, such as the envisaged commission, is to act as an impartial oversight body for the conduct of elections and the administration of an electoral system. If one compares elections to a game (albeit one with high stakes for the development and administration of a country), an electoral commission will act like a referee.
It should not relate to parties, those in power, or anyone who may stand to gain from an election or referendum result. There is a need for a structural separation between those creating, implementing, and being subject to the electoral rules.
The establishment of a full-time Electoral Commission has been repeatedly mentioned in many programmes for Government – yet has been unrealised until now. The campaign for the creation of such a commission has been ongoing for many years, both from the legal community, political-science academia, and civil-society organisations.
The Consultation Paper on the Establishment of an Electoral Commission in Ireland was published in January 2016. This paper followed on from the Preliminary Study on the Establishment of an Electoral Commission in Ireland, which was submitted by the members of the Geary Institute in University College Dublin in November 2008.
Which side are you on?
Traditionally, electoral regulation in Ireland has been carried out by the franchise section of the Department of Housing, and the local delegation of powers to the councils and sheriffs through the country. The current bodies involved in the regulation of the electoral landscape are the Standards in Public Office Commission and the ad hoc Referendum Commission.
The Standards in Public Office Commission plays a vital role in the regulation of political life in Ireland, under the provisions of the Ethics in Public Office Act 1995. This act places ethical obligations on ministers, elected officials, and members of the public service.
The commission is responsible for ensuring the compliance of political parties with various statutory duties, such as financial compliance for donations (for example, annual accounting statements from political parties), the payment of State political allowances (such as party leaders’ allowances), and the enforcement of the legislated ethics framework for elected public officials.
The current format of the Referendum Commission in the wake of the well-known McKenna v An Taoiseach (No2) judgment does allow for general information regarding referenda to be communicated to voters. The main deficiency with the current Referendum Commission is that it is only created when the legislation to hold a referendum has commenced.
The legal imperative for such a commission was to find constitutional expression in McKenna, and further emphasised in McCrystal. While the judgment in McKenna will be more widely known for its division of roles and responsibilities between Government and parties in referendum campaigns, it was also the catalyst for the creation of the Referendum Commission because, while the Government, under the constitutional guarantee of equality, could not spend public money to espouse one viewpoint over another, there was a need for a body to make people aware of the holding of a referendum and the proposal that was being brought before the people.
By the people
The functions of the Electoral Commission that are envisaged by the legislation, specifically in Chapter 5 of the draft legislation, are very broad, and demonstrate the amount of work required in the management of an electoral system – both during elections and referendums, and in the day-to-day management of the electoral landscape.
The commission will comprise a chairperson (who will be a member of the senior judiciary), the ombudsman, clerk of the Dáil, and four to six ordinary members, who would have a background in the administration of elections, public administration, finance, or advertising and publicity (particularly with digital aspects of a political campaign).
The commission will be required to:
- Explain referendum proposals and electoral processes to the public,
- Review constituencies for Dáil and European elections,
- Review local electoral boundaries,
- Research electoral policy and procedures,
- Prepare and maintain the register of political parties, and
- Prepare and maintain the electoral register.
The commission will also have a new function regarding the regulation of online political advertising.
Take the power back
For the average voter, the impact of the commission will be enormous. For the first time, individuals who have been the subject of domestic violence will be able to register in a way that will not allow perpetrators to track them through the register of electors. The cut-off periods for registration will be removed, with rolling registration available until before an election.
There will also be a facility to prepare a draft register of those who are between 16 and 17 years of age. This is indicative of moves to expand the franchise to younger people for possible future inclusion in any local or European elections.
Even though there has been consideration of extending the franchise in Dáil elections to those under the age of 18, such a measure would require a referendum. This draft register would also make it easier for their inclusion on the register when they turn 18. Postal voters and those in long-term nursing or medical accommodation – known as special voters – will also be included in a new rolling register.
The function of the Electoral Commission to carry out research on electoral policy and procedure is especially welcome. Even though it does not seem like one of the most pressing concerns for an electoral management body, there is no centralised State research facility for electoral matters, apart from individual and collective academic data-collection efforts.
This is important for developing a wide understanding of election issues, and understanding the development of practice norms in the area. This role will extend to all elections and referenda in the State. The commission will also have to create a report on all electoral events after the holding of ballots. The registration of political parties will now be a matter for the Electoral Commission, rather than the Clerk of the Dáil.
World turned upside down
Once established, one of the first major tasks of the commission will be to review the constituency boundaries for the Dáil, local, and European Parliament elections, based on the census carried out in April 2022. The commission will also deal with local and EU elections – and the proposed referendum on extending the right to vote to Irish citizens living abroad for the presidential elections in 2024.
The existing Standards in Public Office Commission will remain in place, with its current remit and responsibilities. There is no sign that the two bodies will be merged, as they operate in different spaces of the electoral regulation landscape. However, there may be an argument in the future for the amalgamation of the two bodies for administrative efficiency.
In all, the proposals contained in the Electoral Reform Bill 2022 are welcome and necessary. After many years of reports and campaigning in the area, this body, as envisaged, will transform the regulation of elections in Ireland for the better. It will have a role in future debates in the electoral reform space in Ireland.
Many technical issues, such as the cut-off dates for registering as a voter will be removed. The day-to-day improvements that are needed for electoral integrity in Ireland are finally being addressed by the establishment of this body.
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Jennifer Kavanagh
Dr Jennifer Kavanagh is a law lecturer in Waterford Institute of Technology, specialising in constitutional law, administrative, and electoral law.