Cabinet to seek AG's advice on electronic voting

The Government is to seek the Attorney General's advice on the constitutionality of introducing electronic voting through regulations, the Tánaiste has told the Dáil.

And Fine Gael called for all aspects of the electronic system to be referred to the Electoral Commission because of the serious division on the issue.

The party's environment spokesman, Mr Bernard Allen, demanded that the leaflets and website promoting electronic voting be withdrawn because they were "misleading and highly political".

The leaflets showed a picture of a person voting Fianna Fáil. The Minister of State for the Environment, Mr Pat The Cope Gallagher, later told an Oireachtas committee that the leaflets would be withdrawn but he said legal advice had indicated that electronic voting could go ahead by ministerial order.

Opposition TDs had cast doubt on whether electronic voting could go ahead without further legislation following a High Court ruling last month on Carrickmines Castle, where the judge ruled as unconstitutional an attempt to amend an Act by ministerial order.

Emergency immigration legislation also had to be introduced following a similar High Court ruling in January that ministerial orders controlling immigration were unconstitutional because they were not made through primary legislation.

On Wednesday the Taoiseach told the Dáil he understood that no regulations or ministerial order were required to introduce electronic voting for all constituencies in the European and local elections in June.

The Labour Party leader, Mr Pat Rabbitte, said he had received a letter from the Taoiseach correcting his Dáil comments.

The Labour TD asked what impact, if any, the Carrickmines decision would have on the issue.

"Apparently it is not possible to alter primary legislation by ministerial order. Does the Tánaiste have any advice that this may now proceed?"

Ms Harney yesterday conceded that an order, under section 48 of the Electoral (Amendment) Act "will be required to provide for electronic voting".

"Clearly, before the Minister would make such an order, and in light of the recent High Court decision, we would have to consult the Attorney General to make sure it has the required constitutional status."

She added that "like all orders, the order can be debated and a motion annulling it could be put before the House".

Fine Gael's deputy leader Mr Richard Bruton asked if secondary legislation or ministerial order would be "sufficiently robust" given the High Court response.

The High Court last week overruled an approval by the Minister for the Environment in December for the destruction of the medieval Carrickmines Castle.

Mr Justice Kearns said the case involved a simple point - whether primary legislation could be amended by secondary legislation (regulations or ministerial orders) and he ruled it could not.

Labour's spokesman Mr Eamon Gilmore demanded to know what authority the Minister for the Environment had to spend public money advertising electronic voting when there was "no statutory basis as yet for those elections to be conducted" this way.