Thursday, 12 April 1923
Dáil Éireann Debate
MINISTER for LOCAL GOVERNMENT (Mr. Ernest Blythe): I beg to move Amendment No. 1:— Section 8.—To delete in lines 15 and 16 sub-section (2) the words “15th day of April,” and to substitute therefor the words “1st day of June.”
In the course of the passage of the Bill through the Dáil a change was made in the period during which the making up of the Register would take place, and a great number of alterations of dates were made. This was merely one that slipped, so to speak, and through an accident it was not made.
This, I think, had the intention of effecting some change in the substance of the section; but I am informed that for all purposes the use of the word “furnishing” is in effect the same as the word “giving.” I think there can be no objection to the amendment.
Mr. BLYTHE: I move amendment No. 3:— Section 20.—To delete in line 43 sub-section (4) the word “him,” and substitute therefor the words “the person by whom the deposit was made,” and to delete the word “him” in line 45, and substitute therefor the words “the candidate.”
This is the first amendment of any substance. In the Bill as passed by the Dáil it was provided that there should be a general holiday on the occasion of an election to the Seanad. The Seanad itself, however, felt that that was not necessary. There will be a large number of adults who will not be qualified to vote at the Senatorial elections, and it was felt that it would not be proper to prevent them attending to their work on a day when other people were voting, and therefore it was not necessary to have it proclaimed a public holiday. I think there was no great feeling either way in the Dáil when the Bill was under consideration.
 In Section 49 of the Bill it was provided that the day for taking a referendum should be a public holiday. That is a matter about which there is something to be said on both sides. The feeling in the Seanad was that for the calling of a referendum it would not be a very popular thing, and would perhaps lead to the disuse of the referendum. It was also felt that while a General Election for the Dáil may only take place every four years, with little loss of pay and business dislocation in consequence, a referendum might occur with a great deal of frequency. There was a fairly strong feeling in the Seanad that the proclaiming of a holiday for the purpose of taking a referendum should not be provided for in law. I take it it would be practicable to have the day proclaimed a public holiday if it were felt necessary. It is a matter about which I have no great feeling one way or the other; but I do agree that if referenda were occurring fairly often, it would be impossible to have days proclaimed public holidays. I think it is an amendment that the Dáil might agree to.
After the word “proclamation,” Sub-section (2), line 23, to add “provided that the Minister may, with the assent of both Houses of the Oireachtas, postpone the date of such referendum for a period not exceeding nine months.”
This amendment is for the purpose of enabling the holding of a referendum to be postponed, the idea being that if a referendum on another subject had been held, it might be undesirable and prejudicial to hold the second one immediately. It might also happen that when a referendum was called for, some measure would be under consideration which, it was fairly certain, would lead to a demand for a referendum. Then it might be a saving of time, trouble, and expense if the referendum were postponed, so that two or more subjects could be dealt with on the same date. I think it is a good amendment. I certainly believe that any great frequency in holding referenda would defeat the intention we had in mind when the Constitution was framed. It is a device that can only be used infrequently and on special occasions.  If it is made onerous on the people by being resorted to too frequently, it certainly will break down.
Section 51—To add after the word “offence,” Sub-section (2), line 8, page 24, the following proviso:—“Provided always that the disqualification effected by this sub-section on account of a sentence of imprisonment or penal servitude shall not, in the case of a person who is a member of the Dáil at the date of such disqualification, take effect until the expiration of thirty days from the date of the sentence, or in the event of an appeal, from the date of the order confirming such sentence.”
This provides that where a member of the Dáil, actually sitting, is sentenced to six months with hard labour, the disqualification shall not take place until he has an opportunity of appealing. That is obviously fair. The disqualification shall not take place until thirty days after the confirmation of the sentence, or until after the sentence is given. The object of the amendment is to provide a way out in the case of a gross miscarriage of justice. There was one very notorious case some years ago where, in the case of a prominent labour leader, the sentence was a gross miscarriage of justice, and had to be remitted. If anything like that occurred in future—if there was any sentence that was a gross miscarriage of justice—there would be thirty days during which the matter might be ventilated, and if it were shown that a gross miscarriage of justice had taken place, the duty of the Executive would be to remit the sentence in the case of a member of the Dáil, just the same as in the case of an ordinary citizen. That would ensure that disqualification would not take place through error. It is strongly felt by the Government that where a man commits something which justly merits a sentence of six months with hard labour, he should not be a member of the Dáil. There might be a case where a grossly unjust sentence would be given and I was authorised to accept this amendment when it was proposed in the Seanad. It was felt that this would give an opportunity of preventing a disqualification clause operating where it should not operate.
Mr. THOS. JOHNSON: On this amendment I would like to say that it seems to me that the object sought for by the Seanad is not quite achieved. I take it that the guardian of the privileges of the members of the Dáil is the Dáil rather than the Executive. In a case of this kind if the 30 days occurred during the period when the Dáil is not sitting, the Dáil would not be able to raise its voice or influence the decision of the Executive with regard to the remission of the sentence. That, I think, is an omission, and it should be remedied in some way by adding words making the 30 days lap over into the period when the Dáil is sitting; that the disqualification shall not occur until so many days elapse after the Dáil has resumed its sittings. I feel that in a case of this kind the decision of the Executive should be influenced as to whether the sentence is, if anything, an infraction of the privileges and rights of a member of the Dáil, not only punishing him for crime, but possibly increasing the period for the purpose of depriving him of membership. The Dáil itself should have some means of deciding whether the offence is one that makes the prisoner, as he would in that case be, unworthy of membership of the Dáil. It should rather be left to the decision of the Dáil to say whether a man is worthy or unworthy of sitting in its councils.
Mr. BLYTHE: That point was considered by the members of the Government, and it was felt as a matter of fact in practice that the general disposition of the magistrates would not be to increase the sentence for the purpose of disqualifying the accused. It was felt, on the other hand, that it would be better not to make this a matter of voting and lobbying in the Dáil. If you make it a case whether the Dáil could or should vote as to whether this sentence was one that should operate in the normal way, you might, where there was a close contest, have a man who might commit something that clearly ought to disqualify him, allowed to remain on as a member of the Dáil because his vote was required. It was felt that really the attitude should be that this particular person should be dealt with not as a member of the Dáil in this matter, but just as an ordinary member of the public. If he was sentenced in the ordinary way, and there  was no case made out that his sentence was wrongfully given, or that it was unjust, and that he should not serve the sentence, then the Minister for Home Affairs would really consider it on that basis. It would be for him to say that here was a man sentenced for an offence, and was his sentence such a one that the prerogative of a remission ought be exercised, and that he should be let out. If you do it on any other basis you certainly get to the stage where you probably would have the whole question on a purely Party vote in any case that would come up, and that would not be desirable. If we are to have any sort of fair administration of justice in the country, and if we are to have judges and magistrates who would do their duty reasonably well, then in normal cases they will not give sentences that will be unjust, and we feel that in the ordinary administration of justice a crime that involves a six months' sentence is a crime sufficiently heinous to disqualify a member from sitting in this Dáil. We feel we ought to rely on the discretion of the Justice, and that the members of the Dáil might perhaps vote on Party lines. The thing should be decided automatically by the Justice dealing with the offender brought before him, not as a member of the Dáil, but simply as an offender against the law, and that the Executive should not interfere, except only in such a way as if the offender was an ordinary member of the public. Now, it would have to be a very gross miscarriage of justice if, within 30 days after being sentenced a man who got six months' imprisonment with hard labour would be let out and it would be something that the Minister for Home Affairs would have to justify and show there was no political partisanship involved. I think, on the whole, that a Minister who would have to answer for such a remission, and who had to take some responsibility would have less likelihood of going wrong, perhaps, than would a casual vote that would be called for in the Dáil; that was the feeling of the members of the Government when they considered the question of the acceptance of this amendment.
Mr. GERALD FITZGIBBON: There is one matter which the Minister brought forward that we ought to bear in mind when dealing with these questions. Let  us look to the future and not to the past. The Judges that will be chosen will be for good or evil. These Judges will be chosen by the Executive of this Dáil, and they will be the Judges selected by the Government of this people. Let us have confidence that in the future we will have Judges inflicting sentence who will have the confidence and trust of the people, and let us stand over their decisions.
There is another matter that we did touch upon when this question was before us we must think not only of the individual, but also of the constituency. The sentenced person, whoever he may be, will be in jail for six months, or perhaps for a period of penal servitude, and surely his constituents ought not to be disfranchised during that period, because a Party here—and we will always have Party Government with us whatever we may do—may say, “We desire to whitewash our friend by passing a vote that he shall not be disqualified” If they do not disqualify him, it disfranchises his constituency. That is not fair to the body of electors of this country, who have a right to be represented here. It does seem to me that when a sentence of such weight as six months with hard labour—which is only a sentence inflicted in grave cases—or a sentence of penal servitude has been inflicted by a Justice selected by ourselves, the individual who has suffered that sentence ought not to keep his constituency disfranchised during the period he is serving the term. I think that is a thing we ought to stand for both for the sake of ourselves, of confidence in our Justices, and of the electors who sent each individual here.
55. (1) If at a General Election any person is returned as a member of the Dáil for two or more constituencies, such person shall, by writing under his hand, delivered to the Clerk of the Dáil before taking his seat for any one of such constituencies, declare which one of those constituencies he elects to represent in  the Dáil; and if he does not so deliver to the Clerk of the Dáil such declaration in writing within one month after the first day on which the Dáil sits next after such General Election, he shall be deemed to have elected to represent the constituency in which he received the greatest number of first preferences.
(2) So soon as a person so returned for two or more constituencies elects, or is under the foregoing sub-section deemed to have elected, which of such constituencies he will represent, he shall be deemed to have resigned his seat or seats in each of the other constituencies for which he shall have been so returned.
Mr. BLYTHE: This amendment introduces some new matter, but I think that it is matter that will commend itself to the Dáil. It is not proposed by anything in the Bill that where a person who is returned for one constituency does not attend in the Dáil, he shall be disqualified, and a new election shall be held, but it is here provided that in case a person should be elected for two constituencies there shall be the possibility of declaring a vacancy in at least one of them in case the member should not turn up. It also provides a means for making a member decide which of two seats he shall represent in case he does attend in the Dáil. We have had in the Second Dáil and in the First Dáil cases of members sitting for two constituencies, and I think there were some members sitting for three constituencies. That, I suppose, would not occur in normal circumstances in any country, and it might not occur again. If it did occur, it might be possible to deal with it by Standing Orders. On the other hand, in view of the fact that there is a precedent for it, there might be some difficulty. As present, as the Bill stands, there is nothing to prevent a member of the Dáil, in the case of a by-election, going and submitting himself as a candidate, and testing any views he may have on the electors in that way. It is not felt that that is desirable. If a person who is a member of the Dáil wants to test the feelings of the electors, he ought to resign his seat and do so.
Mr. BLYTHE: I would like to draw your attention to what I think is an omission from this list of amendments. There was a small amendment passed in the Seanad which I do not see here, and I think we ought to pass it even though it is not on the Paper. The object of the amendment was to put Section 55, which deals with disqualifications for membership of the Seanad, into the same form as Section 51, which deals with disqualifications of members for the Dáil. The amendment would be that Sub-section 2 of Section 55 should be in the same form as Sub-sections 2 and 3 of Section 51, substituting the word “Seanad” for the word “Dáil” wherever it occurs. That amendment was certainly before the Seanad, and was passed by the Seanad, but through some slip it does not appear on this Paper
ACTING CHAIRMAN (Mr. FitzGibbon): That is a verbal alteration in the Bill. As we have it, sub-section 2, in the Bill before me reads: “Each of the following persons shall be disqualified from being elected or sitting as a member of the Dáil”—that will be “Seanad” according to the amendment—“that is to say,” etc.
(a) a person who is undergoing a sentence of imprisonment with hard labour for any period exceeding six months or of penal servitude for any term imposed by a court of competent jurisdiction in Saorstát Eireann
(d) a person who is by the law for the time being in force in Saorstát Eireann in relation to corrupt practices and other offences at  elections incapacitated from being a member of the Seanad by reason of his having been found guilty by a court of competent jurisdiction in Saorstát Eireann of some such practice or offence.
Mr. JOHNSON: I agree with the view taken of the matter, but perhaps it might not be inopportune to draw the attention of the Ceann Comhairle to the delicate situation which might be created if this amendment had been of substance, and had not been included in the draft brought back to us, and not passed by us. What would be the position of the Dáil if the Bill were presented to the Governor-General for signature and this amendment passed by the Seanad were omitted? I agree to the amendment as now submitted.
ACTING CHAIRMAN: We will deal with that question when it arises. I think the resources of civilisation would be quite equal to letting the Bill stand over for twenty-four hours until the amendment was properly placed upon the paper. SECTION 55.
“Provided always that the disqualification effected by this Sub-Section on account of a sentence of imprisonment or penal servitude shall not, in the case of a person who is a member of the Seanad at the date of such disqualification take effect until the expiration of thirty days from the date of the sentence, or, in the event of an appeal, from the date of the order confirming such sentence.”
Mr. BLYTHE: Amendment 10 was inserted at the instance of the Mayor of Kilkenny. The Schedule, as it stood, referred to County Boroughs and Urban Districts. He was very much alive to the fact that Kilkenny is a Borough, though not a County Borough, and noticed the omission. I think the amendment may be accepted.
Mr. BLYTHE: Amendment No. 11 is one of the date amendments, of which there were so many in the Bill, and which in this particular case was accidentally omitted. It is an amendment to which the attention of the Seanad was drawn. THIRD SCHEDULE.
ACTING CHAIRMAN: Is this quite right? Rule 11, page 6, line 62 deals with Non-transferable Papers—“shall for the purpose of Rule 11 be described as non-transferable papers.” This is Rule 11 of the same Schedule which deals with transferable votes. Rule 43 in the Fifth Schedule of the Bill is notice of result of elections. I think there is clearly a mistake there.
ACTING CHAIRMAN: Rule 11 at the point referred to in the amendment clearly deals with the counting of votes, and clearly refers to Rule 11 of the same Schedule. If you come to Rule 43 of the Fifth Schedule of this Act you will find you are dealing with the notice of result of elections. I think this ought to be adjourned, as it cannot be looked into in a moment. I think you will also have to adjourn the next amendment because the next amendment is to substitute 7 for 9, and 7 is the Clause that we have adjourned the discussion on.
|Mark Order of Preference in Space below||Names of Candidates.|
(JAMES DOYLE, of 10 High Street, Oilman).
(WILLIAM DOYLE, of 12 Main Street, Grocer).
(MATTHEW O'BRIEN, of 22 Wellclose Place, Accountant).
|O'BRIEN, PATRICK (GENTLEMAN)
(PATRICK O'BRIEN, of 7 Green Street, Gentleman).
|O'BRIEN, PATRICK JOSEPH (SILVERSMITH)
(PATRICK JOSEPH O'BRIEN, of 14 Queen Street, Silversmith).
|WILSON, THOMAS (RANELAGH SQUARE)
(THOMAS WILSON, of 22 Ranelagh Square, Chemist).
|WILSON, WILLIAM (DARTRY ROAD)
(WILLIAM WILSON, of 172 Dartry Road, Dentist).
Mr. BLYTHE: Amendment 14 stands with Amendment 15. Amendment 14 is merely the form. I notice there is a clerical error in it; a small amendment will have to be made and it will have to be returned to the Seanad. This form is prescribed to be used in a case where there is more than one candidate of the same surname. Heretofore, and as the Bill stands without this amendment, if there were two Doyles, for instance, in an election, there would be only the word “Doyle” in large letters in each case. It was pointed out by the Senator who moved the amendment that it would lead frequently to preferences being given in error. People thinking of voting for William Doyle might not remember, where there were eight or ten candidates, that there was another Doyle, and might make their marks opposite the first name Doyle they saw on the paper, without looking into the matter any further; or they would have marked their paper wrongly, and would be put to the trouble of getting a new paper if they wanted to record their vote in the way they intended to do. It is proposed in such cases that the Christian names should be printed large as well as the surnames.
Then it was pointed out by the same Senator that in his own area on one occasion there had been quite a number of candidates of the same surname, and sometimes there were even candidates of the same surnames and the same Christian names, and it would be well in such cases to distinguish the candidates by either their addresses or their professions being printed in large type, so that people looking down the list would not be likely to vote for candidates other than the candidates they intended to vote for. I see in the two bottom names in this list the Christian names are different; they should be the same, and I would move that the form be adopted with the substitution of Thomas for William in the last name.
Mr. JOHNSON: There is a question that may be raised in connection with that, as to whether there is an improvement in insisting that the full name shall be printed in the same type. It is not an uncommon thing to find surnames and Christian names—the first name and  the second name—reversible-Morrogh McCarthy and McCarthy Morrogh. In that case the trouble with the elector would be just as great. It would be worse, as a matter of fact, than by putting the name in large type. The description probably would be as effective by itself.
Mr. BLYTHE: That is a difficulty that will arise, but, I think on the whole, that there was some improvement, and that this would help in certain cases, as compared with the system by which the surname would be printed in large type. It would be unlikely that there would be two sets of people with Christian names and surnames that might be interchangeable. It would be unlikely that there would be two people called “James William,” or anything like that.
Mr. DARRELL FIGGIS: There is one matter that I think might perhaps be changed, and that is with regard to the designation of the two “Patrick O'Briens.” One is described as a “gentleman,” and the other is described as a “silversmith.” It is an important distinction, but there may be no difference. I think that the designation or description of a “gentleman” might disappear—not the habits of a gentleman, I hope—but the description a “gentleman,” and that both persons might be designated by their trade.
ACTING CHAIRMAN: The Minister says that the form will have to go back to the Seanad for the insertion of “Thomas” instead of “William” in the last name. It would be possible to consider at the time of printing as to putting the name in some slightly larger type from the surname. I think that would meet the point raised by Deputy Johnson. You could have the name “Doyle,” and then you could have the Christian name “Thomas” not in block type, but in a smaller type of the kind. That, I think, would be a way out of the difficulty put forward by Deputy Johnson, and it would still meet the case, as  I understand it that the amendment from the Seanad is intended to meet the case of these two people with identical Christian names and surnames.
Mr. DARRELL FIGGIS: I suggest to the Minister that there is another form of designation, and, although it may sound as if it were a matter of humour, it is not so, and would meet the point. In the case of the two “Patrick O'Briens” you could do, as is very common in the West in some families, allude to them in this way, Patrick O'Brien (Mick), and Patrick O'Brien (Páid), that would make a clear distinction between the two.
Mr. BLYTHE: I move to insert, after the word “characters,” [on the back of the papers] shall be printed in small characters the following:—“Whenever the surnames, and the first of the other names of two or more candidates are the same, there shall be also printed in large characters so much of the description of each of such candidates as appearing in their respective nomination papers, whether rank, profession, occupation, or abode, as will, in the opinion of the Returning Officer, effectively distinguish such candidate.”
Mr. BLYTHE: With regard to the amendment to delete the figure “11,” and to substitute “43,” and the amendment to delete “9,” and to substitute “7.” Rule 43 of the 5th Schedule of this Act says:—“The returning officer  shall as soon as possible, give public notice in the prescribed form of the names of the candidates elected, and also in the case of a contested election, and of the total number of votes given for each candidate, whether elected or not. The returning officer shall also give public notice of any transfer of votes made under this Act, and of the total number of votes credited to each candidate at the end of the count at which such transfer took place in accordance with the form set out in Part III. of this Schedule, or in a form to the like effect.” Now Part III. of the Schedule is on page 53, which is the place at the bottom for the non-transferable non-effective papers. It simply means that the amendment on the paper provides that the non-transferable papers shall be set aside as finally dealt with, and shall be discarded as non-effective, non-transferable papers, and shall be entered at the place provided at the bottom of the column.
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