Welcomed as the “the most significant electoral reform in decades”, the Government’s Electoral Reform Bill has also come in for criticism for lacking ambition.
The publication of the General Scheme of the Electoral Reform Bill 2020 in January 2021 was broadly welcomed as an evolution of the electoral system in a bid to keep pace with an evolving society.
Primarily, the Bill introduces progress on the Government’s pledge within the Programme for Government to establish an Electoral Commission for Ireland, independent of government and reporting directly to the Oireachtas, by the end of 2021.
The Programme for Government outlined intentions for electoral reform, including the establishment of an Electoral Commission “to provide independent oversight of elections and referendums, to inform the public about elections and referendums, to update and maintain the electoral register, and to conduct elections”.
The Bill also includes provisions to modernise the electoral registration process.
Proposals for an independent Electoral Commission in Ireland, centralising responsibilities currently distributed among various government departments, statutory agencies, and components of the Oireachtas, are not new. Government mandates of 2011-2016 and 2016-2020 had also outlined plans for an Electoral Commission, but this was never implemented.
The scheme, submitted for pre-legislative scrutiny to the Oireachtas Joint Committee on Local Government on 23 January, if passed into law through the Oireachtas, will see several existing statutory electoral functions, including responsibility for the registration of political parties, the work of the Referendum Commissions, Constituency Commissions and Local Electoral Area Boundary Commissions, passed to the new body.
The Commission is also set to be given responsibility for regulating online advertising during election periods and given oversight of the electoral register. Additionally, the Commission will take on a public information, research, and advisory role in relation to electoral matters.
Membership of the Commission is set to include a mix of experienced public officials in the electoral system and external experts, selected via a public competitive process.
While the publication of the General Scheme has been welcomed, some criticisms have been levelled at the perceived “lack of ambition” for the Commission.
Presenting their research to the Oireachtas Committee on Local Government on 2 February, academics Theresa Reidy (UCC), Jane Suiter (DCU), and David Farrell (UCD) pointed to an opportunity for Ireland to be held out as a beacon in establishing an Electoral Commission fit for the 21st Century, but added: “It has taken nearly two decades to get to this point, which is why we believe that perhaps the most concerning aspect of the general scheme is the lack of ambition envisaged for the Commission.”
The academics explained: “The scheme heavily prescribes the structures and functions of the Commission leaving little room for expansion of current election management activities, to allow for its evolution in the decades to come, and the capacity to adapt to electoral integrity challenges of the future.”
The academics point to strong detail on what functions the Electoral Commission will take over from existing bodies but points to little information on how the Commission might grow its role in the future.
“In essence, this is a static design for a dynamic environment. The initial design must have more ambition to allow the commission to grow. For us, this is the big missing piece in this document.”
Other significant reforms included in the Bill are the modernisation of the electoral register, aiming to simplify forms and the registration process, including an online option and a continuously updated rolling register. Additionally, the General Scheme proposes a move to a single, national electoral register and the introduction of provisional registration for 16- to 17-year-olds, which would then activate at 18.
Again, while the reforms have been welcomed, criticism centres on the absence of scope for the Commission itself to influence the approach to registrations. Specifically, academics Reidy, Suiter and Farrell pointed to “very limited” provisions for postal voting. The academics posed the question: “Will the new Electoral Commission be able to contribute to, and expand on the provisions outlined?”
Outlining the general scheme to the Joint Committee on Housing, Local Government and Heritage debate, Minister of State at the Department of Housing, Local Government and Heritage, Malcolm Noonan TD, described the General Scheme as “ambitious and forward-thinking”.
“We live in an evolving society. With the advent of new technology, changes in living patterns and changes in how we receive information, there has been a need for some time to regulate new media formats and to ensure that our people have transparency surrounding online political advertising, which may influence how we vote,” he said.
“We can also harness new technology to bring about a more secure, accurate and user-friendly electoral register. In addition, it is responsible and prudent to consider how we would run an electoral event with Covid-19 restrictions in place. We have been working with officials to make the necessary provisions for this, and it is to be hoped this will not be the case for too long.”
Another proposed reform within the Bill is the provision that online paid-for political advertisements commissioned for use during electoral periods will be required to be clearly labelled as such.
Essentially this means that advertisements will display a transparency notice which will require information on who paid for the advertising, details of micro-targeting and the total cost of advertising.
A number of TDs raised concerns that the reforms don’t go far enough in bridging disparities in political advertising online and those of radio and television, where strict restrictions apply.
Sinn Féin TD Eoin Ó Broin outlined his belief that the regulation of online advertising appeared to be the “weakest section of the Bill”.
“I have no objection to the proposed provisions, but we have very strict spending limits for elections, which is one of the very progressive parts of our system compared with others. There is consideration of similar spending limits for similar periods with online advertisements and the application of other kinds of restrictions,” he told the committee.
“I cannot buy a variety of terrestrial or broadcasting advertisements during election campaigns, for example, so why is such a low bar approach being taken with online advertisements, given their significance?”
Another concern raised by social media companies is a potential conflict between Ireland’s online electoral laws and those being implemented within the European Democracy Action Plan, which is seeking to apply new laws to political advertising online.
Speaking at the Joint Committee, Ronan Costello, Senior Manager of Public Policy for Twitter in Europe said that the platform shares the fundamental objective of the Electoral Reform Bill: “to make elections more transparent, to encourage accountability, and to promote an honest and informative civic conversation”.
“We have been witnessing trends to regulate online platforms at a national level by other EU state members and we are concerned that this fragmented approach will complicate any possibility of a more coherent and pan-European regulatory response,” he said.
Costello went on to say that the absence of a coherent set of standards at European level risked any new regulation “building virtual walls between our digital communities”.
Finally, the context of the pandemic has shaped part of the general scheme of the Bill in two key areas. Relating specifically only to where Covid-19 restrictions are in place, the General Scheme proposes an allowance for polling to be held over more than one day. This, the document states would assist not only with social distancing at polling stations but also offer flexibility to postal vote provision for those on the special voters list.
The Electoral Reform Bill is expected to be brought to the Oireachtas in 2021, with the Electoral Commission expected to be in place by 2021.