Second Stage of the European Parliament Elections (Amendment) Bill 2019 – Minister Phelan's address to the Seanad
Check against delivery
I move, "That the Bill be now read a second time."
European Parliament Constituency Committee
As Senators in this House are aware, a decision on the number of representatives to be elected to the European Parliament in each Member State for the 2019-2024 parliamentary term was made by the European Council on 28 June 2018.
That Council Decision establishing the composition of the European Parliament provides for 13 members to be elected in Ireland for the 2019-2024 parliamentary term, up from 11 seats in the current parliament. The Council Decision reduces and redistributes European Parliament seats following the decision by the United Kingdom to exit the European Union on 29 March 2019.
The new composition will reduce the size of the European Parliament from 751 to 705 MEPs. Of the 73 seats vacated by the United Kingdom, 27 will be re-allocated to better reflect the principle of degressive proportionality. The 27 seats will be distributed to some 14 Member States, including Ireland, with no Member State losing a seat.
This change necessitated a review of European Parliament constituencies in Ireland with the result that a European Parliament Constituency Committee was established by order under section 5(1A) of the Electoral Act 1997 on 24 July 2018.
Terms of Reference
In arriving at its recommendations, the Committee was required to have regard to the terms of reference set out in Part II of the Electoral Act 1997.
In addition, the Committee was required to report to the Ceann Comhairle no later than two months after its establishment (that is, by 24 September 2018) and was required to hold a public consultation process to inform its deliberations.
Against this background, the Committee’s report was presented to the Ceann Comhairle on 24 September 2018 after which it was laid before both Houses of the Oireachtas.
Report on European Parliament Constituencies
In summary, the Report on European Parliament Constituencies 2018 recommended that the State continue to be divided into three constituencies as follows –
- a 4-seat ‘Dublin’ constituency comprising the counties of: Dún Laoghaire-Rathdown, Fingal and South Dublin; and the city of Dublin. In effect, the existing Dublin constituency gains one additional seat but otherwise remains unchanged;
- a 4-seat ‘Midlands-North-West’ constituency comprising the counties of: Cavan, Donegal, Galway, Kildare, Leitrim, Longford, Louth, Mayo, Meath, Monaghan, Roscommon, Sligo and Westmeath; and the city of Galway. While the number of MEPs in the Midlands-North-West constituency does not change, its geographical territory is reduced by the transfer of Laois and Offaly into the South constituency; and
- a 5-seat ‘South’ constituency comprising the counties of: Carlow, Clare, Cork, Kerry, Kilkenny, Laois, Offaly, Tipperary, Wexford and Wicklow; the cities and counties of Limerick and Waterford; and the city of Cork. In summary, this constituency gains an additional seat with its territory increasing to include Laois and Offaly in order to maintain reasonable equality of representation.
European Parliament Elections (Amendment) Bill
The Bill before the House today provides for the implementation of the recommendations in the Report on European Parliament Constituencies 2018 in full and without change. This approach is consistent with established practice since the first independent Constituency Commission reported in 1980.
In addition to constituencies, the Bill provides for a number of technical amendments to our European Parliament Elections Act 1997 in order to implement certain requirements set out in the EU Council Decision of 13 July 2018.
This Council Decision, which aims to modernise the European Union’s electoral law (known as the “Act of 1976”), was adopted in July of last year under the special legislative procedure following more than two years of negotiations between the European institutions.
The Council Decision inserts a number of provisions into the Act of 1976 (some mandatory and some voluntary) which are intended to take effect in advance of the holding of the elections to the European Parliament scheduled to take place in Member States between 23-26 May 2019.
Main provisions of the Bill
The Bill has nine sections.
Section 1 provides that the Principal Act referred to in the Bill is the European Parliament Elections Act 1997. It is that Act that is being amended.
Section 2 amends section 6 of the European Parliament Elections Act 1997 in order to remove the explicit references to the United Kingdom in subsections (1) and (4) of that section.
These provisions implement certain requirements in relation to the exchange of information on the registration of voters between Member States.
It should be noted that these amendments do not remove the right of British citizens resident in the State to vote at elections to the European Parliament; those rights are contingent upon their continued citizenship of the European Union as set out in the European Treaties.
These amendments provide that British citizens resident in the State will no longer be exempt from the requirements of Directive 93/109/EC in the context of the registration of voters and that the exchange of information requirements (which are to prevent “double voting”) will fully apply to British citizens resident in the State in the event that the United Kingdom does not withdraw from the European Union and its citizens therefore continue to hold the right to vote in elections to the European Parliament.
While Member States are permitted to differentiate between their own citizens and those from other Member States, having different regimes in place for different European citizens is considered to be incompatible with the requirements of the Directive.
Section 3 amends section 10 of our European Parliament Elections Act 1997 to extend the minimum period of time by which a “polling day order” must be made announcing the date for the holding of a poll for an election to the European Parliament.
This amendment is consequential to the amendment in section 6 of the Bill to extend the timeframe for the giving of the “notice of election” as set out in Rule 2 of the Second Schedule to the European Parliament Elections Act 1997.
A polling day order will now be made not less than 60 days in advance of polling day at elections to the European Parliament – up from the current 50 days.
Section 4 amends section 11 of the European Parliament Elections Act 1997 to remove a number of explicit references to the United Kingdom and to British citizens from the European Parliament Elections Act 1997, similar to provisions previously referred to in section 2. In section 11, these references relate to the exchange of information in relation to the eligibility of a person to stand for election to the European Parliament rather than to the exchange of information on the registration of voters.
These amendments provide that British citizens resident in the State will no longer be exempt from the requirements of Directive 93/109/EC in the context of their eligibility to stand as candidates in elections to the European Parliament and that the exchange of information requirements (which are to prevent a candidate from standing if he/she has been prohibited from doing so in his/her home Member State) will also fully apply to British citizens resident in the State in the event that the United Kingdom does not withdraw from the European Union.
Should the United Kingdom legally depart the European Union, its citizens will no longer have a right to stand as candidates in elections to the European Parliament.
In addition, this section amends subsections 4 and 4A in section 11 which provide that certain members in these Houses, if they stand for election to the European Parliament and are deemed elected at the end of a count, must resign their Oireachtas membership upon being deemed to be elected.
In a scenario where there is a delay in the withdrawal of the United Kingdom from the European Union, the provisions of Article 3(2) of European Council Decision (EU) 2018/937 of 28 June 2018 establishing the composition of the European Parliament will apply. In practical terms, this means that two MEPs deemed to be elected (of the 13 deemed to be elected) may not take up their seats in the European Parliament until the United Kingdom’s withdrawal from the European Union becomes legally effective.
Accordingly, given the uncertainty surrounding the timing of when these two MEPs may be allowed to take up their seats, the amendments to subsections 4 and 4A will provide that these prescribed office holders would not have to cease holding their existing office until such time as they take up their seats in the 2019-2024 European Parliament.
Section 5 amends section 15 of the European Parliament Elections Act 1997 in order to provide that the counties, the cities and counties and the cities listed in the new Third Schedule to the Principal Act of the Bill will be those in existence on 1 September 2018 (that is when the Constituency Committee were preparing their report).
As members of this House will be aware, European Parliament elections in Ireland are administered on a local authority basis within their wider European Parliament constituencies and are jointly held with the local elections.
Accordingly, for the purpose of the efficient administration of the local and European elections in Cork, subsection (b) amends section 15 of the Act to ensure that provision is made for the change to the Cork City boundary, as provided in the Local Government Act 2019, to come into effect in advance of the local and European elections
This will enable the local returning officers in Cork to undertake such preparatory work as may be necessary to facilitate the taking of the poll within the revised administrative areas on the polling day.
Section 6 provides for amendments to Rules 2, 5, 10, 18, 19, 50, 88, 92, 94 and 96 of the Second Schedule to the European Parliament Elections Act 1997.
The extension of the current timeframe for the giving of the “notice of election” as set in Rule 2 will ensure that the mandatory requirements under Council Decision (EU, Euratom) 2018/994 (which amends the European Union’s electoral law) in respect of the three week deadline for receipt of nominations as well as the six week deadline for the commencement of the exchange of information will be achieved.
A notice of election will now be issued by the returning officer at least 45 days (disregarding excluded days) before polling day – up from the current 35 days.
Separately, the amendments to Rules 5 and 50 will allow candidates standing for election to the European Parliament the option to include on their ballot papers the name of any European political party to which their national political party may be affiliated.
This application of this provision will be entirely voluntary and whether the name of a European political party would be included on a ballot paper would be a matter for prospective candidates and their national political parties (if any) to decide.
Similar to the provisions in sections 4(a) and 4(b), the amendments to rules 5(1)(c), 6, 10, 18, 19 and 96 provide that British citizens resident in the State will no longer be exempt from the requirements of Directive 93/109/EC in the context of their eligibility to stand as candidates in elections to the European Parliament and that the exchange of information requirements will fully apply to British citizens resident in the State in the event that the United Kingdom does not withdraw from the European Union.
These amendments are of particular importance in rule 10 of the Second Schedule which provides that British citizens who wish to stand as candidates in elections to the European Parliament held in Ireland have 14 days in which to submit their nominations form; this is the deadline that applies to Irish citizens who wish to stand for election.
To be compatible with the Directive, British citizens should be treated the same as citizens from the European Union resident in Ireland who have 7 days in which to return their nominations forms.
Legal opinion provided by the Attorney General has confirmed that different deadlines for different European citizens would likely amount to direct discrimination between Union citizens and may not be capable of being justified.
The amendments in this section to rules 88, 92 and 94 are intended to provide for a delay in the withdrawal of the United Kingdom from the European Union.
In this scenario, it is proposed that the two members who would not take up their seats immediately in the European Parliament would be the last person elected in the constituency of South and the last person elected in the constituency of Dublin (that is the two constituencies which were allocated the additional seats).
It should be noted that in the event that the last remaining candidates in the constituencies of Dublin and South are not in a position to take up their seats due to a delay in the United Kingdom’s exit from the EU, the principle of equality of representation within these two constituencies, which underpinned the recommendations of the Constituency Committee would be affected for the duration of any delay.
Representation in the Dublin constituency would be 449,120 per MEP (i.e. a variance of +3.75% from a national average representation based on 11 seats) while representation in the South constituency would be 472,747 persons per MEP (i.e. a variance of +9.21% from the national average representation). The difference between the lowest variance, which would be Midlands-North-West at -12.02% and the highest variance, which would be South at 9.21%, would be 21.23%.
While this would be the highest on record, variances of in and around +20% were recommended in 1977, 1993, 1998, 2003 and 2007 respectively.
This variance is considered unavoidable and temporary given the use of sub-national multi-seat constituencies for the holding of elections to the European Parliament in Ireland; this issue would, however, be resolved when the United Kingdom’s exit from the European Union becomes legally effective.
To ascertain the last persons deemed to be elected in Dublin and South, rule 88 of the Second Schedule to the European Parliament Elections Act 1997 makes provision for the election of the last remaining candidates in a European constituency.
Where a delayed withdrawal occurs, it is proposed to amend rule 88 to allow for the transfer of votes to continue for the last remaining candidates in the Dublin and South constituencies until the final candidates in these constituencies are deemed to be elected.
This will ensure that the last remaining candidates will each have a total number of votes which can be used to inform which candidate in each of the two constituencies will not take-up his or her seat in the event that the withdrawal of the United Kingdom from the European Union is deferred post the holding of the elections to the European Parliament on 23-26 May 2019.
The amendment to rule 92 complements the amendment to rule 88 in that it provides that the returning officers in Dublin and South will publicly announce the order of election in respect of the last remaining candidate deemed to be elected in each of those constituencies. This will ensure that the order of election in respect of the last candidate in each of the constituencies of Dublin and South is publicly clear and unambiguous.
The amendments to rule 94 will provide for the deferral of the last candidates to be elected in the Dublin and South constituencies from taking up their seats in the 2019-2024 European Parliament until a date for the additional seats allocated to a number of Member States (including Ireland) to be taken up is established.
Section 7 provides for the substitution of the Third Schedule of the Principal Act. The new Third Schedule sets out the name of each constituency, the counties and cities that each constituency will be comprised of, and the number of members that will be elected for each constituency in European elections held after 1 January 2019.
Under these arrangements, the population per MEP in the three constituencies ranges from 336,840 to just 380,879, which is a very narrow range in terms of the variance of population per MEP. Thus, there is a very fair balance of representation between the three constituencies.
Section 8 is a consequential amendment from the changes proposed in section 6 and amends section 25 of the Electoral Act 1992 to allow national political parties the option of including on the Register of Political Parties the name of any European political party to which they may be affiliated to.
Section 7 is a standard provision providing for the Bill’s short title, collective citation, construction and commencement.
This Bill has the specific purpose of providing for how we elect our MEPs to represent Ireland in the 2019-2024 European Parliament. I look forward to the debate on the Bill in this regard and commend this Bill to the House.