Approach to Electoral Reform Bill raises serious questions over Government’s respect for rule of law

In his speech to the European Parliament in June, the Taoiseach highlighted, in thinly veiled digs at the UK and wayward EU states, the importance of respect for the rule of law and adherence to international agreements to the functioning of European democracy. It was a welcome statement of principle, but the Government’s recent behavior does not inspire as much confidence.

The European Commission’s annual rule of law report is an exercise by the EU where it measures how member states perform against democratic standards. The 2022 report was published in July of this year and it pointedly criticised Ireland for the practice of “discussions on new bills tend[ing] to be concentrated during short periods of time (in particular, during the two weeks before recesses), with negative consequences for proper parliamentary scrutiny.”

Ironically enough, that report landed as the biannual rushing of legislation through the Oireachtas was at its peak. Fifteen bills were barreled through the Dáil and Seanad in July alone. This compares to 14 for the entirety of the preceding six months combined.

One of those bills, the Electoral Reform Bill which was signed into law on July 25, might prove to be of particular interest to our European friends. The way in which this bill was dealt with by Government and by the Oireachtas also raises worrying questions that go beyond an end-of-season rush.

In principle, the Electoral Reform Bill is at strengthening democracy. The key ideas in it are laudable and important, including an independent Electoral Commission, reforms of party funding, and modernizing the electoral register.

In the first phases the process was as you might expect, there was extensive and generally collegial cross-party debate. The relevant Oreachtas Committee engaged with submissions and presentations from experts. ICCL made submissions on all these issues with recommendations for strengthening the Bill.

As the bill progressed through May and June of this year, however, the Government added other issues into the mix as amendments, including provisions for party fundraising draws and cross-border regulation on political financing. These issues were more divisive and provoked some heated exchanges between the Government and opposition parties, with accusations of party self-interest and objections to new ideas being introduced without debate.

However, it was when it came to the issues of political advertising and political ‘misinformation’, that the problems really rose. These are two extremely important issues and recent global events have shown the dangers involved for democracy when states don’t protect their elections from either financial or digital interference from rogue actors.

There are a great number of stakeholders that might be impacted by regulations in these areas, including political parties, social media companies and media organisations. There are few, if any, international precedents for laws in these areas, so care and attention are even more important than usual. The public also have a right to have an input to the development of new laws affecting the democratic process.

Conflict with EU laws

More significantly, because these proposals on political advertising in the bill potentially conflicted with existing EU laws and laws under the EU, the Government consideration was to consult with the European Commission. EU law provides that where there is a potential conflict with EU law, the domestic legislative process is subject to a “standstill” period while the issue is resolved.

The Government sent its proposal to Brussels in April for their comments. A final detailed Opinion from the Commission was received by Government on or before July 5 informing it that the relevant part of the Electoral Reform Bill was in conflict with EU law.

In particular, the Commission found that the proposals offended freedom of expression, a possibility which ICCL flagged in our own submission on the bill.

The Commission directed the Irish Government not to proceed with the bill at least until October 5 — imposing a new extended ‘standstill’ period.

What happens next is baffling. First the Government ignores the Commission’s Opinion that they are breaking EU law and decides to plow ahead with the bill but begins to guillotine the stages of the process.

More worryingly, the Government does not inform the Seanad where the bill was debated on July 6 and 7 about the EU order, nor do they inform the Dáil which discussed the Bill on July 13. In fact, the Government says nothing about the EU consultation at any stage despite the correspondence with the EU being ongoing from April.

Serious questions must be asked about why the Oireachtas were not informed that they were passing legislation which the Government knew was Contrary to EU law. Equally important questions should be asked about why the Government chose to proceed with this law when it had been directly ordered by the EU not to proceed as it was acting illegally.

No debate

The situation on Part 5 of the bill, with regard to misinformation is even worse. The Government proposals for this new area of ​​law were made available for the first time on June 10 with no notification given to interested parties.

This whole part of the legislation was introduced to the process as a series of amendments in the Seanad at report stage. Amendments at Report Stage are usually minimal and technical in nature, but these amendments were so extensive and complex they could have constituted a bill in their own right.

That stage of the legislative process was then merged with a final stage Seanad debate, so there was no debate on the Part in the Seanad. TDs never even saw the law, let alone discussed it, until they were asked to rubber stamp the entire bill at final stage on July 13, unexamined amendments and all.

A whole new law was forced through without any elected representatives – much less anyone else affected by the law – having the opportunity to consider or debate what was being proposed. The Government has since confirmed that it has also sent these proposals to the European Commission for their views on May 30.

It is unclear when the Commission will issue its opinion on this section of the bill. Again Ireland is defying the EU by legislating without waiting for EU views. Again, the Government did not inform the Oireachtas that the EU was engaged and might yet find the bill incompatible with EU law.

So we have the quite astonishing situation that the Government forced through new areas of law without debate including one part of a bill that the EU had advised was illegal, and another area which the EU has not had the chance to offer an opinion on yet.

At all times, the Oireachtas was apparently kept in the dark. The irony that this bill is trumpeted as “strengthening our democracy” shouldn’t be lost on anyone.

Why the rush?

You might well ask, why was such an extraordinary approach taken to this particular bill.

Sometimes there are emergencies, for example if a law is deemed invalid by a court there might be a need to act quickly to ensure there is a valid legal basis for an essential State function. This legislation however is about establishing new bodies and new areas of regulation. It is important, but it is not an emergency.

All this unnecessary and indecent rushing of the bill had predictable effects. During a final guillotined stage of debate in the Dáil, it was noticed that there was an additional misplaced word in the text of the bill which might present a legal difficulty, but the Government had not left itself time to fix it. No problem, we were told by Minister Malcolm Noonan, we will bring forward amending legislation in the autumn.

The Government’s line on the EU issue is similar. There is no problem with us enacting this illegal legislation now because we won’t use it. We will fix what we know is flawed in the future, but we’re not going to tell you how. This is beyond parody.

The rules about how laws are made set ground rules for our democracy. These rules are not mere technicalities; they exist to prevent the type of abuse of process and abuse of power which is embodied in the Government’s behavior on the Electoral Reform Bill.

It’s past time when the Government, opposition, and the public start to take seriously at the domestic level the rule of law standards which we espouse so proudly on the international stage.

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