Gavan Reilly: Acts in haste: how the last-minute rush makes bad law

If you’re a real political boffin you’ll be a bit excited about the new Electoral Commission coming our way at the end of the year, and some of the changes it’s due to consider – like lowering the voting age, bringing back electronic voting (or at least electronic counting), reviewing Dáil constituencies and modernising the electoral register.

The running of elections is a pretty germane thing in a democracy, so creating a new entity that governs the conduct of elections is obviously a pretty big deal. Indeed, one of the new Electoral Commission’s major powers is to issue codes of conduct for how an election is to be run – a binding set of instructions to political parties, candidates, online platforms, the media, and anyone else.

Hang on though, because there’s a question. Are the codes of conduct binding? Even though the Electoral Reform Bill has now fully passed through the Dáil and Seanad, and is due to be signed by the President today, nobody can tell you for sure. If you pick up a copy of the Bill you can open Section 163 and read for yourself the procedures available to the Commission if a code of conduct is being ignored. The High Court can be asked to issue orders for someone to comply with electoral rules, if “a [mandatory] code of conduct” is being flouted.

Those square brackets there aren’t a mistake by the Meath Chronicle’s august editors. They’re actually written into the law. It’s the result of a drafting error, most likely by a civil servant who was trying to come up with a method of enforcement – but who was undecided about whether the word ‘mandatory’ should appear, and wanted to get someone else’s input first. But the word was never removed in later drafts and now the brackets are on the statute books.

You’d think that this sort of thing that should be picked up by an eagle-eyed TD or Senator as the bill was on its way through Leinster House. And you’d be right: it was indeed picked up by someone, Labour’s Brendan Howlin, who had gone through the whole thing with a fine-tooth comb. But Howlin was unable to do anything about it; nor was anyone else.

That’s because of the usual end-of-term rush which has become a hallmark of how Ireland runs its affairs. President Higgins has an easy enough gig but his job is made all the easier by how rarely he is sent any legislation to consider: the vast, vast majority of laws come his way in the final week of December, and in the second half of July. Those are the only times that the Oireachtas really seems to put the skates on, and when the Government breaks out the ‘guillotine’ to curtail the time available for debate on specific laws, and forcing final votes on a Bill before the whole thing is fully considered.

Often this is a case of ministers bending to the whim of their Departments, with civil servants keen to get certain laws in place before the recess – though the opposition isn’t entirely blameless either, demanding lengthy Dáil sessions where TDs “debate” (i.e. read statements) on certain scandals of the day, and thus lowering the time for actual legislating.

Either way, the result is laws which are rushed and often higgledy-piggledy. The Electoral Reform Bill is now one such law. The notion of an electoral code of conduct wasn’t in the Bill when it first went through the Dáil, and only emerged during later amendments in the Seanad. There, the Government tabled 66 amendments to its own Bill, and the opposition offered a further 76, but in the end of term rush only two sessions of debate were available for TDs to consider them all. The debate only got as far as Amendment 32, of 142. When the Seanad reached its deadline all Government amendments were automatically accepted – square brackets and all – and when the same amendments were referred back to the Dáil for final approval, the text could not be changed. In a simple rush to get it passed quickly, a part of the Bill was fundamentally botched.

Codes of conduct aren’t the only thing that could be affected by this rush. It is a longstanding part of Irish law that political parties can only accept overseas donations if they come from an Irish citizen. (This means most of the money raised by Sinn Féin’s overseas operations cannot be spent in the Republic; it is instead directed towards operations north of the border where foreign money is permitted.) But in changing the rules around raffles and lotteries, the law now allows for anyone outside the state to enter – meaning a Sinn Féin $1,000-a-plate dinner could now simply be reclassified as a $1,000-a-ticket raffle, with dinner included, and the money can flow in.

And those are only two sections of a 207-section Bill, ratified with indecent haste, and that’s one of six Bills which were polished off in a single afternoon last Wednesday as the Government cleared the decks before its break.

Last year President Higgins voiced specific concern about this annual rush, saying he hadn’t adequate time to scrutinise laws when they were often passed in bulk. Next time he might reasonably question whether TDs are giving themselves enough time to do likewise.