The Electoral Reform Bill published by the Government in April is a welcome attempt to update the process of running elections. However, a worrying development, with serious implications for freedom of speech, has emerged in the course of the pre-legislative consultation process. The core aspects of the Bill are plans for the long promised and necessary electoral commission, an overhaul of the electoral register and the regulation of online political advertising.
The Oireachtas Committee on Housing, Local Government and Heritage has responsibility for scrutinising the provisions of the Bill. It has emerged that a draft report prepared by officials for the committee contains recommendations that there should be sanctions for political parties or election candidates who engaged in “discriminatory actions or rhetoric” during election campaigns. The draft is based on submissions to the committee from a number of groups.
Politicians on the committee now have the opportunity to make submissions on the draft report. Some have already expressed concern that there would be serious difficulty in defining "discriminatory actions or rhetoric" as advocated in the draft report. Former minister for justice Charlie Flanagan argued the recommendations would be a nightmare to enforce and he raised the prospect of the courts being dragged into election campaigns to monitor the behaviour of candidates and adjudicate on statements made.
The implications of the proposals for freedom of speech, which is one of the cornerstones of our democracy, should not be overlooked by TDs and senators. Although the motivation behind the proposed sanctions for unacceptable rhetoric may be worthy, the net impact could be to constrain political debate in a potentially unacceptable manner.
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All comment outside the precincts of the Oireachtas and the courts is already covered by the laws of libel and hate speech. However well-intentioned, introducing another layer of legislation to define what can or cannot be said during election campaigns is unnecessary and potentially both unenforceable and dangerous.