Can the Minister say, off-hand, what sections of the Bill give him power to make regulations? What sections enable the Minister to make regulations, apart from that prescribing the expenses of local returning officers?

I am not aware of any that will be necessary. So far as dates are concerned, there is a separate section dealing with that matter.

With regard to Section 8, amendment No. 1 is out of order as being outside the scope of this Bill. The same applies to amendment No. 2.

I move amendment No. 3:—

In sub-section (2), lines 25 and 26, to delete the words "may also, if he so thinks proper", and to insert in lieu thereof the word "shall".

The sub-section sets out that the presidential returning officer shall furnish free of charge on request a form of nomination paper to any member of the Oireachtas, and the presidential returning officer may also, if he so thinks proper, furnish to the Clerk of Dáil Eireann and the Clerk of Seanad Eireann a supply of forms of nomination papers. I want to delete the words "may also, if he so thinks proper", and substitute the word "shall". The reason why the word "shall" should be inserted should be obvious. We think it is fit and proper that the nomination papers should be placed here for the convenience of members, and it ought not to rest with the returning officer whether he may or may not furnish these papers. I think the Minister will see the sense of that and will agree that we are suggesting the proper thing to do.

If it were likely that any returning officer would not put the nomination papers at the disposal of the Clerk of the Dáil, then there would be a case for the amendment, but, as the person to be appointed will presumably be a civil servant, there could scarcely be any question that the would certainly see to it that what the Deputy has in mind would be carried out.

That is hardly a case for refusing the amendment. We do not know, and the Minister does not know, who will be the returning officer in ten or 20 years' time, and there is no reason why we ought not to have that officer's duties clearly outlined. I think we should make it clear that this matter will not be purely at the officer's will or wish. We ought to lay down definitely what he must do.

If we take out the words "also, if he so thinks proper". will it meet the Deputy's point?

Leave out the words I suggest and put in the word "shall".

I will leave out those words "also, if he so thinks proper".

What is it that we propose to do?

The Chair does not yet know.

We are proposing to leave out the words "may also, if he so thinks proper", and put in the word "shall" there.

I am prepared to meet the Deputy to the extent of leaving out the words "also, if he so thinks proper".

Without the word "shall"?

"also, if he so, thinks proper". I will leave in "may". Other Acts of Parliament have "may".

Did I understand the Minister to say that this "may" does not mean "shall"?

I did not say that.

It was to be concluded from the Minister's statement that if there was an officer who would not do it, then he would amend the section. I took it for granted from the Minister's statement that the officer has the power to refuse to do it.

In theory, perhaps, yes.

Is the Minister legislating, or is he not? He does not seem to know. Does the word "may" here mean "shall"? The Minister does not appear to know the Bill.

There is a very distinct change in the approach to the relationship between the presidential returning officer and the Clerk of the Dáil as compared with the position of that officer and a member of the Oireachtas. The Vice-President thinks it desirable to provide here that the Presidential Returning Officer shall furnish a form of nomination paper to the member of the Oireachtas, but then the Bill goes on to say that he may, if he so thinks proper, furnish a supply of forms to the Clerk of the Dáil. What is the reason for the difference in the phraseology? If it is thought desirable that the returning officer must give a form to the member of the Oireachtas, why should he not similarly be compelled to provide forms for the Clerk of the Dáil?

If the Minister thinks it is desirable to impose on the returning officer a statutory authority to make these forms available to the Clerk of the Dáil, then the best way is to put the word "shall" into the section. Otherwise, the position will be that the returning officer may, if he so chooses, supply forms, or he may decline to supply them. The best way to ensure that he will supply them is to insert the word "shall" instead of "may". I do not think the Minister has given any convincing reason against this amendment. If it is desirable that these forms should be made available to the Clerk of the Dáil, then the best way is to put the statutory responsibility on the returning officer.

Can the Deputy imagine any civil servant refusing to send these forms to the Clerk of the Dáil?

Why not put the word "shall" in the opening sentence? If the Minister has such an abiding faith in these infallible civil servants, why not make it read "the presidential returning officer may furnish... to any member of the Oireachtas"?

The members of Dáil Eireann, of the Oireachtas, are the nominating persons; the Clerk of the Dáil is not a nominating person.

The Minister tells us that the civil servant, being so obliging and having such a high conception of his responsibilities, would not refuse a form to anybody entitled to receive one. But the Minister does not seem to believe that, because in this sub-section he sets out that the returning officer "shall furnish".

The members of the Oireachtas are the nominating persons. They are entitled to have a form because they are entitled to nominate.

Surely there is the same reason for having the forms made available to the Clerk of the Dáil.

No.

Must the presidential returning officer be a civil servant?

No.

He may not.

I gather that the Vice-President will not put in "shall" instead of "may" because there are Acts of Parliament where there is the word "may" and not "shall". He does not know why that is so. Why he is insisting on the wording of this sub-section, I do not know. Why has he so much confidence in a person who may not be a civil servant? We are all aware that the integrity of the Civil Service is a thing on which you can rely, but now it appears this man need not be a civil servant at all. I do not know why the Minister objects.

Has the mover of the amendment accepted the amendment of the amendment suggested by the Minister?

It is absolutely ineffective, unless you substitute the word "shall". There is nothing at all gained by removing those words "also, if he so thinks proper".

Surely the Vice-President sees the reasonableness of the amendment?

Can the Minister visualise any circumstances in which the returning officer will not think it proper to supply these forms to the Clerk of the Dáil.

He does not know.

Has the Minister any objection to the Clerk of the Dáil being supplied with the forms?

None at all. I hope he will have a plentiful supply.

It is a most extraordinary position. I wish the Minister would reconsider this whole thing.

Very well, I promise to reconsider the matter.

I am ruling amendments Nos. 4 and 5 out of order.

4. At the end of the section to add the following new sub-section:—

For the purpose of this section the words "any council of a county or a county borough" means the council of any county or the council of any county borough, but does not include a commissioner or other person discharging the functions of such council for the time being.—William Norton.

5. At the end of the section to add a new sub-section as follows:—

Nothing in this section shall empower a commissioner, or commissioners, acting as a county or county borough council, to nominate any person to be a candidate at any Presidential election.—Mícheál O Braonáin.

Would the Ceann Comhairle give a reason for ruling out amendment No. 5, because, as I understood the situation, the law sets out what the power of a commissioner is in a county council? The Constitution does not set it out, and my submission is that the Constitution is not putting any restriction on how the Oireachtas will lay down the law as to what constitutes a county council. Presumably, if this amendment No. 5 were to be ruled out of order, if it were decided to group four county councils into one in years to come, or to make any other alteration, it might be held that it was unconstitutional and could not be done. In this case, where it is proposed to alter the law permitting the commissioner to exercise the rights given in the Constitution to county councils as such, it might be held that that would not be in order.

Amendments Nos. 4 and 5 are the same in substance.

The object of amendment No. 4 is not to give the commissioners the wide powers which it is sought to give them in connection with this Bill. I am not at all challenging the right, nor is Deputy Brennan challenging the right, of county councils or borough councils to make nominations; but we are challenging the right of a commissioner appointed for a specific purpose to interfere in the affairs of a Presidential election. I submit that when Article 12 of the Constitution was being drafted, there was no indication that such a situation would have arisen. Indeed, that was made clear on the last day here, when the Minister for Local Government and Public Health did not seem to know what the precise legal position of the commissioner was vis-a-vis this Presidential election. I submit, Sir, that it was a very rigid ruling to say that an amendment of this kind is out of order, because the amendment does not challenges the right of the county council to make nominations. It only challenges the right of the person appointed to function on behalf of a county council, in certain limited ways, to interfere in the affairs of Presidential elections.

I submit, Sir, that if this amendment were accepted it would be in the power of the Oireachtas to define the duties of commissioners. Ruling out this amendment suggests that it will not be in their power to define these duties. I suggest that if for a time the commissioner must have the functions of county councillors this is not going to mean that he is to have these functions in connection with Presidential elections under the Constitution. It is a suggested amendment of the law and this is the place to suggest an amendment of the law. We cannot bring in an amending Local Government Bill at this particular time. The only method of implementing the Constitution just now is by way of bringing in this amendment here. It is not changing the Constitution, but it is limiting the powers of the commissioner. The more ordinary procedure would be by the method of an amending Bill to the Local Government code and to lay down there what are the powers and what are not the powers of the commissioners. But it is impossible to do that at the moment, and this now is the only course open to the Oireachtas so far as this Presidential election is concerned. I would respectfully ask the Ceann Comhairle not to adhere to what is such a rigid ruling, because I gathered on the last day that the sense of the House was that the commissioner should not have this particular power. I do not know that the Minister who is in charge of this Bill had really any objection then to that point of view. I really think he had not and that he was sympathetic towards it.

There is one particular point to which I should like to draw attention. It is laid down in the Constitution that 20 members of the Oireachtas may nominate the President, but if consideration is not given to this Bill it may mean that four commissioners may exercise powers similar to the powers exercised by 20 members of the Oireachtas, including the members of the Executive Council.

And these four commissioners could be civil servants.

It was observed by Deputy Norton that when Article 12 of the Constitution was under consideration the difficulty relating to the powers of commissioners was not adverted to. It has been stated by Deputy O'Sullivan that he does not seek to amend the local government law by this Bill; it would not be legitimate to do so. As to the point made by Deputy Norton that certain matters were not adverted to, it is quite possible that matters relating to other phases of legislation may arise similarly. Is it suggested that as regards all statutes that are affected in any of the Bills introduced to implement the Constitution, the law in respect of these should be amended in such implementing Bills? I do not think it is within the scope of this measure, the sole purpose of which is to implement some provisions of the Constitution, to amend the Local Government code or to seek to define or limit the powers of the commissioners. If a one-clause Bill were introduced to achieve the purpose aimed at in the Deputy's amendment it would be a very different matter. It would thus be done expressly and apart from this measure.

I put this point to you, Sir—this Bill will become law before the amending Bill to which you have referred can become law. When the Oireachtas passes an Act giving such powers, there is naturally a reluctance to withdraw the powers by another Bill. However, that particular procedure may be open to a certain amount of objection. The position would be that we would have endowed the commissioners with certain powers and that we would then suddenly withdraw these powers.

This is a Bill to amend the provisions of the Constitution and, therefore, I submit that we are fully entitled to amend them and that any amendment or any provision that is necessary to secure what the House thinks a proper method of conducting the Presidential election is in order because this is a Bill to implement the Constitution. I take it it ought to take priority over any other Bills. If the House is of opinion that this is not a proper method of amending the Constitution, I suggest that it is within the competence of the House to put into this Bill provisions that will amend the Constitution in the way that the House wants it amended and not in the way it does not want it amended. I did not hear any attack yet on the provisions of this amendment and, on the last day here, I took it for granted that the House, if it had the power was not to be debarred from using it; that the House if it wished to amend the Constitution could do so by certain sections dealing with the Constitution in this way. I submit that nothing should stand in the way of that being fully done and that if, incidentally, we have in this way to cut across other Acts, that is the normal thing to do because we are merely doing what we are bound to do by the Constitution. This House passed a Constitution. It must proceed to the implementing of it and other Acts cannot hold up the manner in which that work is to be done by the Dáil if the Dáil thinks it should be done in a particular way.

I think that the Minister for Local Government and Public Health should make some contribution to this debate with a view to clearing up the position which is likely to arise under the section. It is clear that if two commissioners exercise jurisdiction in place of two county councils they will be able to nominate a candidate for the Presidency. These commissioners may be two civil servants responsible to the Minister. That is a situation which, apparently, we are to allow to go through in all its nakedness in this Bill without any serious effort to remedy it. Commissioners have certain functions in regard to the normal activities of county and borough councils and, in this Bill, we ought not to allow them such a meandering power as to go right into a Presidential election and nominate a candidate so as to prevent an election being uncontested even if every Party in the State desires that it should be non-contested. That situation was not adverted to when the Constitution was being discussed and I think the Minister should make some effort to deal with the position which is likely to arise if this Bill goes through in its present form. Otherwise, there is only one course for members who do not want this kind of farce to go through to adopt—that is, to vote against the section and knock out this novel provision whereby county councils have the right to nominate a candidate for the Presidency even though their powers are exercised by commissioners.

The Minister will appreciate that 20 members of this House represent about 140,000 voters, on the basis of 7,000 for each member. That is provided for in another Act. If the Minister thinks that 140,000 votes should be required to nominate a Senator in this way, he ought to be very chary about allowing commissioners the same authority. If we cannot get this provision corrected, we ought to wipe out the section altogether and provide some substitute method. It is farcical to allow a couple of commissioners the same right which is accorded to 140,000 voters.

It is certainly not my desire that any commissioner or commissioners should be in a position to interfere in a Presidential election because they happen to be in administrative control of certain counties. That is not the wish of the Government nor is it my wish and, apparently, it is not the wish of the House. Before the Second Reading of this Bill, and since then, I have considered the matter and I have asked various law officers to consider it. I have also had conveyed to me the views of the Ceann Comhairle. When we were on the Second Reading, I was put a number of questions. I had my own views— which, I think, were in accord with the views expressed here to-night—on the question as to whether commissioners should have this power or not but, because of the differences I had found amongst the lawyers, I did not say very much. I knew that there would be other opportunities. I had in mind that I could produce an amendment on Committee Stage. I had an amendment drafted but, when the views of the Ceann Comhairle were conveyed to me, I had to drop my amendment. I shall discuss the matter again with the Ceann Comhairle and, if he sees fit to accept an amendment, I should be prepared to put it down. I should be very happy to amend the section if possible.

There is only one other way of dealing with the position—that is, to amend the local government law, which I am quite prepared to do. It was never intended that commissioners should have this power and I do not think that, even if the power were given, any reasonable or sensible man would attempt to use it. However, that is beside the question. It is better—I think it is the view of the House generally—that the power should not be there if it can be avoided. If it is not found possible, after consultation with the Ceann Comhairle, to bring in an amendment which would meet his views on the question of constitutionality, I promise the House that, before Christmas if possible, I shall bring in a Bill—as nearly a one-clause Bill as possible—so to amend the law of local government that commissioners will not have power to take part in Presidential elections.

Why not repeal that clause altogether with regard to county councils?

Ask the Ceann Comhairle.

The Minister said that he had an amendment and had proposed to introduce it up to yesterday, when he learned for the first time that it was out of order. It is a pity that he did not think of introducing it in sufficient time for circulation. Yesterday was rather short notice to give the House of an important amendment, after consulting all these warring lawyers. We have, however, the promise of the Minister so far as the main issue is concerned. We are deliberately passing a provision which nobody wants. The Minister does not want it, the Government do not want it, the Minister's Party do not want it and the House does not want it. Therefore we shall pass it unanimously.

In the submissions made on the point of order much stress has been laid on the merits of the case. I should be going outside my province were I to indicate to what extent I agree with Deputies in that respect. To alter and amend the provisions of other Acts in implementing the provisions of the Constitution is not, to my mind, correct procedure. If it is desired to amend the local government code, as suggested by the Minister, it is quite feasible. I have not seen the amendment to which the Minister refers. I presume I shall see it before Report Stage. Meantime, I am not promising either to accept it or reject it.

May I suggest to the Minister that he consult his law advisers on this point? If this measure becomes law commissioners now acting and commissioners who may be appointed in the future will already have got certain powers and privileges under this Bill, which is a Bill to implement the Constitution. I put it to the Minister that it is unlikely—I put it no further than that—that he will receive legal advice that an amending Bill in respect of one of the Local Government Acts will override a measure which implements the Constitution.

I do not think I went into the merits of the case, but the case I want the Ceann Comhairle to consider is this: We are asked to implement the Constitution and we are not doing it the way the House wants. I hold that the desire of the House to implement the Constitution, which it is bound to do, overrides the ordinary rules of procedure.

I should be most happy, now as on all occasions, to meet the wishes of the House, but I am afraid I cannot do so on this occasion.

Has the Minister considered the possibility that when he comes to amend the Local Government Act, disarming the commissioners of the right to exercise their functions in respect of Presidential elections, he may be told that he cannot in that Bill amend the functions of the commissioners which are set out in this Bill? Is that a possibility? Is it possible that the Minister may be told, when he seeks to amend the Local Government Act, that not only must he do it there, but he must come back to the House and do it in this Bill? If that possibility is there, the promise which the Minister is making this evening, while of course, made sincerely, is really of no value to the House.

Will the Minister really not have to amend not merely the Local Government Act, but this Bill as well? And he cannot amend this Bill.

In the long run, the amendment is better than the course of action suggested and the Oireachtas can afterwards legislate in respect of any wrongs it may do itself. I think that even now, if it is possible for you, you, Sir, ought to permit the amendment to be moved.

I have ruled the amendments out of order.

Then we must vote against this section.

I must say that I cannot agree to allow this section to pass without challenging a division. Even as a layman, I cannot see how it is possible, once we have committed ourselves to passing this in its present form and given this right, in a subsequent Act to affect this issue. If it is out of order here to correct the interpretation of the words "county council", how can it be in order in another measure to do it? In consequence, I see no other course open to the House but to reject Section 9 and then some way out of the situation will have to be found.

Would it be possible to leave over this section for Report?

No.

With regard to that, we are in the difficulty that, on Report Stage, the section does not come up unless there is an amendment, and we cannot move an amendment on Report Stage.

Unless the Minister agrees to re-commit the Bill.

Yes.

Would that mean that we would go through it section by section?

If necessary.

There would not be a desire for much discussion except on this section. If the Minister agrees to re-commit the Bill on Report Stage, we can leave it open.

Can we not go through the Bill now and re-commit it at the end. I was quite prepared, if the Ceann Comhairle saw fit to agree to some amendment, properly drafted, that would safeguard the situation. In view of what Deputy Cosgrave says, I am quite prepared to agree to what the House wants if we can find a way out. The suggestion of the Party opposite and of the Labour Party was not acceptable and the methods I had in mind were not acceptable either, and the only way out is to re-commit the section.

We will have to get a new Ceann Comhairle.

There is another point with regard to this section. Sub-section (7) states:

Where the Presidential Returning Officer receives from the council of a county or a county borough two or more nomination papers, regular on their face and relating to the same election, all such nomination papers shall be invalid and shall be disregarded.

I want to put to the Minister a possibility which might occur of a valid nomination paper being sent by a county council to a returning officer and subsequently a practical joker, or a person desirous of having that nomination paper declared invalid, going to the trouble of having another nomination paper for another individual signed and sent in. In that case, even though it were subsequently discovered that the paper was faked, the returning officer, as the section is drawn, would be bound to declare both nomination papers invalid. We had here many years ago a description of quite a number of incidents that happened in the world when very important personages were taken in by practical jokers, and in this case, if such a practice were indulged in by anyone, I can see no means, as the clause is drawn, of allowing the valid nomination paper to stand. I presume that the reason for the insertion of this clause was that a county council is not entitled to rescind its decision to sign a nomination paper on behalf of a candidate, but as a loop hole for a county council, if it desires to interfere it can pass a resolution putting up another candidate and then both fall. While steps may be taken to allow for a change of mind, I think that where a county council has made up its mind and taken the necessary action, it ought not to be at the mercy of some evilly disposed person or a person with a bent for practical joking whereby its decision with respect to a nomination may be destroyed.

I take it that if what Deputy Cosgrave has suggested may happen—and some things of the kind have happened in the past, as he knows and I know—it would not be possible for a person wishing to send in a faked paper so to complete the nomination paper that, with all the other things necessary, it would bear the seal of the county council. Section 9 (3) says:

"Every such nomination paper ...sealed with the seal of such county council and delivered or sent by post to the presidential returning officer."

I think there is a safeguard there against a fake nomination but there might be two nomination papers sent by a county council. That is the possibility, that perhaps at the first meeting there was not a majority of the members present, although properly notified, and that another meeting was called and a second nomination paper properly filled up and sealed. In that case what could the returning officer do? He will have power later, in conjuction with the judicial assessor, to make all the inquiries necessary to satisfy himself that the nomination is valid. Into every matter that he thinks proper it is open to him to inquire, and to examine the candidate or the agent upon it. If there are two nomination papers, and if both of them on their face are valid, I cannot see what the presidential returning officer can do with these two papers but to reject both.

There is a little word for which the Minister expressed a great liking some time ago, the word "may". Perhaps if he inserted "may" instead of "shall" at the end of sub-section (7) it would not be so disagreeable.

I quite subscribe to what the Minister said about the seal of a borough council or a county council, but it will be within recollection that within the past ten years in Great Britain a gentleman entered into voluntary possession of the seal of a county council for the issue of stock, and that huge quantities of stock were issued. That is not an easy thing to do. But it was done. It is possible nowadays, if a person could make one seal that he could make two. That might happen. What I am at here is, that where there is a valid nomination paper from a county council, and authorised by law, that nomination ought not be, by any machinery or by implication, declared invalid.

If there are two valid papers from a county council, what is the presidential returning officer to do? It is within the bounds of possibility, in the way I suggest, that in a county council there might be two different sets of men, and that within a fortnight the council might come to two different decisions and validly nominate two persons. What is the presidential returning officer to do then?

Both are invalid. One only is right and that one ought not to be declared invalid because of the other one.

Would it not meet the case if the words in sub-section (7), line 3, "on their face" were deleted? If the sub-section read:

Where the presidential returning officer receives from the council of a county or a county borough two or more nomination papers regular...

it would then become a question as to whether the second paper was in fact regular. If it was regular it would operate to invalidate the first paper. Where on investigation it transpired that, although the second paper was on the face of it regular, but was in fact irregular, the first paper would stand. That is what the Leader of the Opposition wants to secure. We all agree that a county council could on a "snap" division nominate one person, while the entire county council at a subsequent meeting might wish to undo that. It is a good thing that there should be machinery whereby they could do so. It would be highly undesirable to allow a practical joker or a forgery to destroy the nomination of a county council, and the course I suggest to the Minister would provide for that contingency.

The Minister envisaged a case where there are two papers, apparently valid, and he then asked what was the returning officer to do. I thought we would be told what the returning officer would do. I gather, if there are two nomination papers, that on their face are valid, the returning officer is precluded almost from making investigation. He must decide. While his investigation might lead him to say that one was a forgery, and the other not, still there is no remedy. Surely that is absurd.

There could not very well be, as Deputy Dillon suggested, a snap division, because there must be seven days' notice of motion given to the members of the county council, but members who might not attend in sufficient numbers in the first instance, on seeing who had been nominated, might later desire to have a special meeting of the county council called, at which a full attendance might reverse that decision and have another ballot paper. Both papers on their face are valid containing all the machinery necessary, signatures and seals.

The Minister is not dealing with the case put up. He is dealing with a case that was not put up. In the case the Minister described it was admitted that the papers would be declared invalid. The case put up here is a different one, not where both were validly done, but where one was genuine and the other a forgery. According to the Minister there is no remedy there.

If the first one were a forgery——

No, the second one.

——there are means by which the returning officer can discover that. He has it in his power when a nomination paper comes before him, to ask questions of the agents.

Is it not valid on its face?

It has the seal, but the Deputy suggests that it is a forgery and is invalid.

Is it not valid on its face?

Yes, but it is a forgery.

Is there power there?

Yes.

If there are two nominations is there power to say that one is valid and can be accepted?

Yes.

Where is it?

Section 14 (1).

At the ruling upon nominations every question relevant to the nomination of a candidate (including in particular his eligibility for election) shall be open and may be raised by the presidential returning officer or by any other person then present and entitled to take part in the proceedings.

But he is bound by other sections of the Bill.

Section 12 (3) says

Every question in relation to any nomination paper or the nomination of any candidate or any other matter connected with the nomination of candidates shall either be decided by the presidential returning officer or be referred by him to the judicial assessor under the next following section of this Act,...

They are all bound by the previous sections.

Before that happens the returning officer has two nominations from a county council. No matter whether they are valid or invalid he has two papers and one is fatal. I do not think the returning officer is required to decide there.

He is bound by the previous sections.

Supposing an objection is raised. If paper No. 2 is accepted and if paper No. 1 is invalidated, supposing the objectors are challenged to point out in what particular No. 1 is invalid on its face, what happens? I would be inclined to say that no paper is invalid on its face. I might know that the way in which its facial validity was secured was wrong, and that it was a forgery, but that would not entitle me to get a paper rejected or to have No. 1 paper maintained.

I suggest that there is power in the returning officer to make the necessary examination of every nomination paper received by him and to give a decision on it.

Yes, he must decide according to law.

Under sub-section (1) (a) of Section 12 he is bound to do a number of things. Paragraph (a) lays down that he is to produce all nomination papers received by him before 12 o'clock noon on the last day for receiving nominations, and paragraph (b) says he is to examine and rule upon all such nomination papers——

But he must rule according to Section 9.

He has full power to rule, according to his judgment, on the validity of every ballot paper.

No, he is bound to rule according to law, and in no other way.

Would the Minister consider inserting a clause such as this: "Not more than one valid nomination paper will be received from any county council."

That was the original draft, and the draftsman changed it.

Do not blame the draftsman. This is your Bill.

That, as I have said, was the original draft, but it was thought well to change it. I take responsibility for it of course.

After having put the blame on the draftsman.

No. Sub-section (3) of Section 14 provides:

The Presidential returning officer or the judicial assessor (as the case may be) may, for the purpose of deciding any question at issue during the ruling upon nominations receive and act upon evidence, whether oral or written, tendered to him by or on behalf of any party interested in such question, and may, if he so thinks proper, require such evidence to be given on oath and may for that purpose administer an oath.

But that cannot override what is the law.

Cannot the Minister put himself in the position of the Presidential returning officer. Two ballot papers are put before him. An objector presents himself and says that ballot paper No. 2 is bad and should not be allowed. That invalidates paper No. 1 as well. The Presidential returning officer asks what is the nature of the objection, and the objector says it is a forgery: that the seal was attached to it without due authority. The maintainer of the paper refers the Presidential returning officer to sub-section (7) of Section 9 which says:—

Where the Presidential returning officer receives from the council of a county or a county borough two or more nomination papers, regular on their face and relating to the same election, all such nomination papers shall be invalid and shall be disregarded.

As the defender of No. 2 paper, I say to the Presidential returning officer: "That precludes you from pursuing any inquiry on the question as to whether the paper is regular on its face or not. If it is irregular on its face, then you are entitled to rule within your discretion, but if the facts coerce you to say that the paper is regular on its face, my submission is that you are not entitled to go behind it under the terms of sub-section (7) of Section 9."

Suppose a question were raised by somebody that one of these papers was a forgery there is machinery by which the Presidential returning officer can discover for himself whether it is a forgery or valid.

Valid on its face. Who is to decide that?

What meaning does the Minister give to that phrase?

The Presidential returning officer, or the judicial assessor, is to decide whether it is valid on its face or not. He has the final word on the matter.

The Minister is asking us to pass this Bill. Will he tell us the meaning that he gives to the phrase "valid on its face?" I hope that he will not tell us he does not know. What does he think the phrase means?

As far as one can see from a paper that it complies with all the regulations laid down in the Act.

That is all right.

I think, Sir, there is an amendment to that section. The amendment is in the name of Deputy Brennan and reads as follows:

At the end of the section to add a new sub-section as follows:—

(3) Notwithstanding any provision of this section, a President, who has been impeached, and as a result of such impeachment has been retired from office, shall not be eligible for nomination as a candidate.

That amendment has been ruled out. It is outside the scope of the Bill.

Outside the scope of the Bill, or against the Constitution?

An interesting point arises in this connection, Sir, because the usual procedure is that the Chair does say that he rules out a particular amendment on the grounds that it is out of order for the following reasons, and so on. Is it that this amendment is outside the scope of the Bill, or what is the exact reason why this amendment is not admissible for discussion?

The Ceann Comhairle has ruled that that amendment is outside the scope of the Bill.

Outside the scope of the Bill?

The Ceann Comhairle communicated with Deputy Brennan.

As a matter of fact, Sir, the Ceann Comhairle did communicate with me but the communication itself was not very clear. However I should like to know how this amendment is outside the scope of the Bill. After all, the Constitution presented us with these Presidential elections naked, as you might say, and we are entitled to clothe them with something. Nobody anticipated that we would be so precluded from discussing the ways and means of getting a President or anybody else elected as we now appear to be. If this were in conflict with the Constitution or in conflict with the Bill, or if it imposed unnecessary restrictions upon anybody, there would be something to be said for ruling it out, but I think the House is entitled to know how that ruling has been made and how the Ceann Comhairle or anybody else has arrived at the decision that that amendment is outside the scope of the Bill. It is simply an attempt to prevent a person, who had been President of this country and who was impeached and ceased to be President, from renominating himself and imposing upon this country a very costly contest. Surely the House is entitled at least to do the sensible thing in these matters and to endeavour to save the country from such a situation as that. I am sorry that the Ceann Comhairle is not in the Chair at the moment, but I should like to know how he has decided that this is in conflict either with the Bill or the Constitution.

This is a Bill to deal with the election of a President by machinery. We can lay down qualifications which the President must fulfil in dealing with the election of President. Can we not legislate on that by law? Is not that the purpose of the Bill? Perhaps we might hear a submission from the other side, and then we might make a submission in connection with this matter.

On Second Reading, I drew the Minister's attention to the section and his reply was: did I think it likely that a President whom the House had impeached would again submit himself? It is not unlikely at all. If he thought the House had treated him unfairly, he might do it.

Can we not discuss this on the section itself?

We want to move an amendment. Unless we move an amendment, there is nothing open to us except to vote against the section. We may not wish to vote against the section if we can amend it. The section deals with the nomination of President.

Has not that matter already been decided upon on the Constitution? This is raising a matter already raised on the Constitution.

That is a new point which would raise a very wide question. If that were the ruling of the Chair, we would have to press very strongly to have the matter reviewed. I do not care to argue this hypothetically, but if such a ruling were made it would then appear that the Chair took to itself the function of determining whether legislation of this House was in accord with the Constitution. Of course, it was clearly envisaged when the State was established, and at all times since, that the constitutionality of any Act should be determined by the High Court, specially constituted for the purpose. Therefore, I do not think the Chair would adhere to the view that the amendment should be rejected and discussion on it forbidden, because it appears to the Chair that, in the event of that amendment being inserted, the Act when passed would be declared unconstitutional. That would go quite beyond the province of the rules of order, and create a very dangerous precedent indeed, restricting freedom of discussion in this House.

I think the Chair always refused to decide the constitutionally of anything.

That is so. The Chair never took on itself to decide what is in accord with the Constitution, but the Chair has decided that this amendment is not within the scope of the Bill, as before us. I think that matter was discussed with Deputy Brennan before.

It was never discussed with me.

The actual explanatory paragraph attached to Section 10 is: "Nominations by former or the retiring President." When we proceed to say that one type of retiring President shall be precluded from the advantage of renominating himself, it would be difficult to say that goes outside the scope of a section which professes to control the nomination by a former or the retiring President.

Does the Government really want this power? Is it one of the things we must pass unanimously because we entirely disagree with it?

This Bill is a matter of machinery, and Deputy O'Sullivan knows that as well as I do. When any suggestion is made to improve the machinery, I will accept it—anything at all in reason. If I can get anything reasonable from Deputy O'Sullivan, I will accept it.

Is this not reasonable?

I have nothing to say as to whether it should be allowed into the Bill. That is a matter for the Chair.

The Minister now makes two points: one is, whether it is reasonable; and the other is, whether the Chair will permit him to accept it. I asked him if this is a reasonable amendment. He does not know, and puts the responsibility on the Chair. The Chair may decide whether it is in order, but it is the Minister who wants something reasonable. Is this reasonable?

If the Deputy wants me to criticise the Chair, he will have to raise the matter in some other way.

The Minister could say, "If the form of this amendment is objectionable to the rules of order, I shall concern myself between this and the Report Stage to incorporate the principle of this amendment in some other amendment which will conform with the rules of order."

If I thought that an amendment with the idea contained in that would be accepted by the Chair, I certainly would accept it or move it.

Then the Minister accepts the principle of the amendment?

I do.

He will accept it if it can be brought within the rules of order. I understand that is the Minister's position.

Will Deputy Dillon then withdraw the present amendment and let it be redrafted?

Yes. I presume from what the Minister said that he does not want a President who has been retired as a result of impeachment to have the power to nominate himself for election?

Quite.

Then the Minister will undertake to look into the point and see if he can include a clause which will be in order and which will effect that purpose?

I will try, and I would be glad if the Deputies will try too.

We led the way.

That is all right then. The amendment is not moved at this stage.

And the Bill is being recommitted owing to previous sections?

Yes.

We appear to have discovered Boyle Roche's bird at last, because we have already been told in the Bill that the Presidential returning officer is to receive nominations up to 12 o'clock and the place where he is to do so is not specified. I take it, it can be Galway, Cork or somewhere else. Section 12 says that at 12 o'clock on that day he is to proceed, at a place which will be named and will, presumably be in Dublin, to do certain things. Therefore, he is to receive them up to 12 o'clock at an unspecified place and be at a specified place at 12 o'clock also. I do not see how it can be done.

Does the Minister propose to fill that lacuna?

No, I do not see the necessity.

Surely the Deputy has presented the Minister with a very obvious dilemma. If the Deputy has foreseen a dilemma that cannot arise, perhaps the Minister will explain how that is.

I am afraid I am too obtuse to see the point.

I am afraid you are.

Will the Minister tell us, if the Presidential returning officer is to receive nominations in Galway up to 12 o'clock noon on the 1st May, how he can produce these papers at 12 o'clock noon in Dublin?

It would be impossible.

Will the Minister satisfy the House that that situation could not arise under the terms of the Bill?

It is not necessary.

What is not necessary?

To provide that the impossible will not be enacted by this House. If the Minister means that there is to be only one centre for the production and ruling of the nomination papers, why does not the Minister say so? Is that not the simple thing to do? Why leave it open for an impossibility to be precipitated by regulation? Deputy Benson has pointed out that unless the papers are to be received and accepted under Section 12 in the same centre, it would be absolutely impossible to carry out the terms of the Bill.

That is so.

Why not now determine what that place is to be and so declare it, because the discretion that the Minister leaves himself in the Bill is worsened? It is eminently desirable that—and I think the Minister will agree with me—where legislation can be carried out without leaving a discretion to anybody, where it can be carried out by expressing the intention within the exact terms of the Bill, that is the best way to draft it. It is only where you cannot see your way that you leave a discretion so that the lacuna can be filled up subsequently. Is it not better in this instance to determine what the place may be so that no ambiguity can arise hereafter?

Under Section 6 (1), relating to the order appointing days, I think there is power to cover any point of that kind that may likely arise as to place and date.

I suggest that Section 6 (1) deals only with the place where the ruling of nominations will be made, not where the nominations will be received. Both functions may still take place at opposite ends of the country.

Suppose he did fix Galway to receive the nomination papers, there is only one Presidential officer. He could have Galway for the receipt of the nomination papers and Dublin for the ruling of them.

At the same time?

No.

The section requires him to be in the two places within a split second.

No.

Section 12 says that at 12 o'clock noon, on the last day for receiving nominations, the returning officer shall attend at the place appointed and shall produce all nomination papers received by him before 12 o'clock and shall examine and rule upon all such nomination papers. If at 12 o'clock he is going to rule on them, it must be in the same place. There is no distinction drawn between the time and the place for receiving them and for ruling on them.

I do not think there is anything in the point but I shall look into it.

Section 12 ordered to stand part of the Bill.

SECTION 13.

. . . . . . .

(4) The decision of the judicial assessor on any question referred to him under this section by the Presidential returning officer shall be final and shall not be open to review by any court.

I move amendment No. 7:—

At the end of sub-section (4), line 42, to add the words:—

provided that no nomination paper duly and properly subscribed by members of the Oireachtas or by the councils of counties or county boroughs shall be declared invalid merely because of a technical fault in the name or in the address of a candidate save in a case where the identity of the candidate is open to doubt.

I do not think that this amendment needs any words of mine to recommend it to the House.

Would the Deputy tell us what is a "technical fault"?

That thing for which the Court of Criminal Appeal would refuse to quash an indictment. There is a good precedent for it.

I am not saying that there is not but I should like to hear the Deputy explain what he means by a "technical fault."

There is a perfectly good precedent for it in the old Judicature Act. If there was any slight technical slip in an indictment, and that a person was convicted of the offence charged, he could go to the Court of Criminal Appeal and because of that technical slip he could be acquitted. That may have been in the court of first instance. I forget exactly where it was. That has been remedied and the Court of Criminal Appeal can now say that, although there was a technical slip in the indictment, if substantial justice has been done the conviction shall stand. All that Deputy Brennan seeks to provide is that if there be a technical slip in a nomination paper, but if it is manifest to the returning officer that the nomination paper has been properly subscribed, he shall not declare the nomination paper invalid.

If in one of these papers a candidate were described as Seán T. Kelly instead of Seán T. O'Kelly, that I think would be a technical fault, yet in fundamental principles the nomination paper would be valid.

It is set out pretty definitely in the Bill what a nomination paper must contain. All details as to the nomination papers are fully set out. In ordinary election times returning officers do not always rigidly follow the instructions laid down. As far as I have known, returning officers have always allowed a certain amount of liberty in that respect. A distinguished Deputy opposite is known to some of us as Professor John O'Sullivan and to others as Marcus O'Sullivan.

Only to members on that side of the House.

I think he is known pretty well to both sides by that name. If a returning officer got a nomination paper with the name John Marcus O'Sullivan and another with John M. O'Sullivan, I do not think he would declare them invalid because of these technical faults.

I gather the Minister sees nothing against the amendment, therefore he will not accept it.

I am entirely in the hands of the House. There is no Party question about it. It is only a question of getting the best machinery possible.

Getting us to do your job.

I do not want to deal with "footy" points.

Would the Minister accept the amendment now?

I have no objection to anything that will improve the machinery of the Bill.

Accept it and let us get on.

I do not see that improves it. It adds trouble to it but if it will make John Marcus O'Sullivan more distinct to the returning officer than John M. O'Sullivan I am prepared to accept it.

All the candidates may not be as distinguished as John Marcus O'Sullivan.

What is the meaning of the words at the end of sub-section (1):

"and entitled to take part in the proceedings"?

Is a member of the public attending the nominations entitled to take part in the proceedings?

There is in Section 17 a list of the persons permitted to attend the ruling of nominations. These are the persons entitled to be present.

Is a servant of the public authority or a clerk appointed to the presiding officer entitled to make an objection?

Nobody is entitled to be present except those set out in Section 17—the presidential returning officer and his assistants, and the other persons mentioned.

So any of the presidential returning officer's assistants may object to a paper?

Yes. Anybody who is entitled to be present may object. Somebody raised with me a question about the Press. Nobody in the House here has raised that question.

We have not got to it yet. We are very orderly members of this House. We do not jump ahead. We are not proleptic.

I move amendment No. 8:—

In sub-section (1), to delete all words from the word "during," line 29, to the end of sub-section (2), and substitute the words "by informing the councils or county borough councils responsible for his nomination or the members of the Oireachtas who nominated him not later than three days after the said candidate has been declared to have been validly nominated, and such candidate shall also serve notice in writing on the returning officer that he has so withdrawn within the said three days."

We think, Sir, it is necessary that some time should be given after nominations in which you might have withdrawals. There does not seem to be any sense in compelling a man who has been nominated to stick to his nomination. If he desires to withdraw it he ought to be given an opportunity to do so. For instance, a man might very well have agreed to his nomination, but, possibly two days afterwards, when publication of all the names was made, he saw that he had not an earthly chance, and I think it only right that he should be given a chance to withdraw. That is the real purpose of this amendment, and I should like if the Minister would accept it.

I think there is something in what the Deputy's amendment suggests, but I think if two days were granted it would probably be sufficient. I do not think it would be wise to insist that all the county councils should be notified.

Not all the county councils—only the county councils which nominated them.

There might be four of them. That might add very considerably to delay and also to uncertainly.

Why not give them two or three days to withdraw?

I think he ought be given three days, because even the Irish Press might not penetrate to the furthest corner of this island of ours within 24 hours, and a man might not know what company he was in for a day and a half. I think he should be given three days.

We have radios and all sorts of things nowadays. Perhaps the Deputy has not heard of them.

I was in a remote part of the country not very long ago, and I could not get a daily paper until very late. I think three days should be allowed.

I think two would be sufficent.

Why is it considered essential that a candidate nominated by a county council should have a statutory obligation imposed on him to notify the county council?

I am not insisting on that.

If the Deputy is not insisting on it, I would suggest to the Minister that it ought to be deleted. Suppose a man wants to withdraw. Suppose he has been nominated by four councils. In order to withdraw, under the Deputy's draft proposal, he should address a letter to the Presidential returning officer and to the four councils. Under the draft proposal, if he addressed the Presidential returning officer and three of the councils, omitting the fourth, his withdrawal would be invalid. Therefore, I would suggest that his obligation should be to address his withdrawal to the Presidential returning officer.

I propose to redraft it and put in two days, leaving out what Deputy Dillon suggests.

Why should there be a restriction to two days? Is it so urgent that we cannot put in three days? After all, the post in the country is not so very up-to-date.

I think two days should be ample.

The Deputy, in introducing the amendment, said that a situation might arise in which a candidate found himself up against such formidable competition that he would abandon all hopes. Another case might arise. All Parties agree that it would be desirable in these Presidential elections if an agreed candidate could be found who would have the common support of the whole State. A situation might arise where four candidates were put up, one of whom stood out as acceptable to all sides. There ought to be time for negotiation to try and induce the other three candidates, in the public interest, to withdraw, to avoid contest and have a unanimous election. With only two days, and three candidates to approach, the matter might be very difficult. One might say "I will withdraw if the other two will also do so," and by the time the whole three were approached four or five days might have elapsed. I admit that argument might be used——

It might be used the other way.

It might be used to argue for a week's extension, but one has to be as reasonable as one can. The Deputy has said three days. I am prepared to agree to three days. It certainly is an argument against insisting on informing the county councils.

What is the reason for the haste? Is there any objection to giving a week? It might save a lot of expense. I should like the Minister to think it over.

There is another point. What Deputy Dillon says is quite correct as to the likelihood of the situation being eased perhaps, and agreement got from one candidate to withdraw if there was sufficient time. Might not the time work the other way? Might there not also be people endeavouring to insist on a man going forward?