No. 8/1974:

LOCAL ELECTIONS (PETITIONS AND DISQUALIFICATIONS) ACT, 1974

ARRANGEMENT OF SECTIONS

1 Interpretation.

2 Questioning of local election.

3 Security for costs.

4 Presentation of petition.

5 Grounds for petition.

6 Particulars in petition.

7 Trial of petition.

8 Counting of votes afresh.

9 Withdrawal of petition.

10 Penalty for corrupt withdrawal of petition.

11 Substitution of new petitioner following withdrawal.

12 Substituted petitioners.

13 Abatement of petition.

14 Matters relating to final order on trial of petition.

15 Effect of certain declarations by court.

16 Matters consequential on petition.

17 New election in certain cases.

18 No action to be taken in certain circumstances to fill vacancy in local authority.

19 Validity of local election.

20 Witnesses.

21 Costs of petition.

22 Costs awarded against returning officer.

23 Statement of case to Supreme Court.

24 Removal of certain disqualifications for membership of local authorities and certain related bodies.

25 Modification of restriction on holding office or being employed under local authorities and certain related bodies.

26 Service of documents.

27 Repeals.

28 Short title and collective citation.

SCHEDULE

AN ACT TO MAKE PROVISION IN RELATION TO LOCAL ELECTION PETITIONS, TO MAKE PROVISION IN RELATION TO MEMBERSHIP DISQUALIFICATIONS WITH REGARD TO LOCAL AUTHORITIES, TO ENABLE CERTAIN RESTRICTIONS ON HOLDING OFFICE UNDER OR BEING EMPLOYED BY A LOCAL AUTHORITY TO BE MODIFIED, TO REPEAL CERTAIN ENACTMENTS RELATING TO LOCAL ELECTIONS AND TO MAKE OTHER PROVISIONS CONNECTED WITH THE FOREGOING.

[15th May, 1974]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

1.—(1) In this Act—

"the Act of 1941" means the Local Government Act, 1941 ;

"the Act of 1963" means the Electoral Act 1963 ;

"clerk" means the town clerk of the corporation of a county or other borough, the council of an urban, district or the commissioners of a town;

"costs" includes charges and expenses;

"county", except where the context otherwise requires, includes a county borough;

"electoral offences" means offences under any statute or statutory instrument relating to local elections;

"local authority" means the council of a county, the corporation of a county or other borough, the council of an urban district, or the commissioners of a town;

"local election" means an election held pursuant to section 81 of the Act of 1963 or a new election within the meaning of Part IV of the Act of 1941;

"local electoral area" means the area or any of the areas (as may be appropriate) by reference to which a local election is held;

"member" includes a lord mayor, mayor, chairman, vice-chairman, alderman, councillor and a commissioner of a town;

"the Minister" except where the context otherwise requires, means the Minister for Local Government;

"petition" means a petition presented under this Act;

"returning officer" means the secretary or clerk of a local authority and includes a person appointed by such secretary or clerk to act as a deputy returning officer for the election of members of such authority;

"secretary" means the secretary of a county council.

(2) Any reference in this Act to any other enactment shall except so far as the context otherwise requires, be construed as a reference to that enactment as amended or applied by or under any other enactment (including this Act).

(3) Any reference in this Act to a meeting or member of a local authority shall where the local authority in question is the corporation of county or other borough, be construed as a reference to a meeting or member of the council established by law in respect of such county or other borough.

(4) Any reference in this Act to a particular officer shall be construed as including a reference to any person duly appointed either as deputy for such officer or to act in the place of such officer during his absence or incapacity or during a vacancy in his office.

2.—(1) A local election may, and may only, be questioned by a petition to the Circuit Court.

(2) Where it appears to the Attorney General that a local election may have been affected by the commission of electoral offences, he may question the election pursuant to subsection (1) of this section.

3.—(1) A petition, other than a petition presented by the Attorney General shall not be accepted for lodgement; with the court unless the petitioner lodges with the petition security for costs which may become payable by him.

(2) The security required to be given by subsection (1) of this section shall be an amount of three hundred pounds and shall be given either by recognisances entered into by any number of sureties satisfactory to the court not exceeding four or by a deposit of money, or partly in one way and partly in the other.

4.—(1) A petition may be presented by any person who has reached the age of eighteen years and shall be presented by being lodged in the office of the county registrar for the county in which is situate the principal office of the local authority to which the petition relates.

(2) Subject to subsection (3) of this section, a petition shall not be presented same within the twenty-eight days next after the result of the election is declared.

(3) Subject to section 19 of this Act, where a petition alleges bribery and specifically alleges a payment or other consideration to have been made or to have passed after the result of the local election was declared, notwithstanding the fact that another petition relating to the same election may have been previously presented or tried, the petition may be presented within the twenty-eight days next after the day on which the said payment or consideration is alleged to have been made or to have passed.

(4) Where a petition has been, lodged with the court, as soon as may be this petitioner shall give a copy of the petition—

( a ) to any person to whose election the petition relates,

( b ) to the Minister,

( c ) to the secretary or clerk of the relevant local authority, and

( d ) except in the case of a petition presented by the Attorney General, to the Attorney General.

5.—(1) Subject to section 82 (6) of the Act of 1963, a local election may be questioned on the grounds of want of qualification, obstruction of or interference with or other hindrance to the conduct of the election, or mistake or other irregularity which, if established, are likely to have affected the result of the election and without prejudice to the generality of the foregoing, any of the following grounds may be specified in a petition:

( a ) local election was affected by error or was not completed or was otherwise not conducted by the returning officer in accordance with law;

( b ) a local election was affected by electoral offences,

( c ) a person at a local election was, on the date of his nomination, not qualified for membership of the relevant local authority.

(2) Notwithstanding any other provision of this Act, a petition shall not be dismissed on account of an informality in its contents which does not materially affect its substance.

6.—A petition shall specify—

( a ) the local election to which it relates,

( b ) the grounds on which it is based,

( c ) the remedy it seeks, and

( d ) the name and address of the petitioner and his solicitor or agent, if any,

and shall be signed by the petitioner.

7.—(1) A petition shall be tried by a Judge of the Circuit Court assigned for the time being to the circuit in which is situate the principal office of the local authority to which the petition relates and references in this Act to the court shall, save where the context otherwise requires, be construed as references to the Circuit Court.

(2) The following provisions shall have effect in relation to the trial of a petition :

( a ) in fixing the date for and conducting the trial, the court shall deal with the matter as soon as is reasonably possible;

( b ) the trial shall take place in the county in which is situate the principal office of the local authority to which the petition relates;

( c ) notwithstanding the death of any person to whose election a petition relates, his resignation as a member of the relevant local authority or his otherwise ceasing to be such member, the trial shall be continued until its result is determined;

( d ) the Attorney General may at any stage be represented at and take part in the trial as a party, whether of his own motion or at the request of the court;

( e ) the returning officer for the relevant local election shall, at the request of the court, attend the trial and give such assistance as shall be requested of him by the court, but without prejudice to his being a party to the proceedings or being called as a witness by any such party.

(3) Any party to a petition may appeal on a question of law to the Supreme Court against a decision of the court on the petition and subject to the foregoing the decision shall be final and not appealable.

(4) A petition shall, for the purposes of section 22 of the Courts (Supplemental Provisions) Act, 1961 , be an action within the meaning of Part III of that Act.

8.—(1) The court may, for the purposes of the trial of a petition, if it thinks fit, order—

( a ) that all the votes cast at the election shall be counted afresh,

( b ) that all the votes so cast in a particular electoral area shall be so counted, or

( c ) that all the votes so cast and recorded on the ballot papers contained in a particular parcel shall be so counted,

and where the court so orders, he provisions of the following subsections shall have effect.

(2) Votes to which an order under this section relates shall be counted afresh under the direction of the court and, subject to subsections (3) and (4) of this section and to such modifications (if any) as the court considers necessary, the provisions of any regulations made by the Minister under section 82 of the Act of 1963 relating to the counting of votes at a local election shall apply to such counting.

(3) Where votes are counted afresh pursuant to an order under this section the court shall cause the following to be ignored:

( a ) preferences recorded on, ballot papers which are invalid by virtue of regulations made by the Minister pursuant to section 82 of the Act of 1963,

( b ) preferences recorded on forged or counterfeited ballot papers, and

( c ) preferences recorded for any person who, with respect to the relevant election is found by the court not to have been qualified for membership of the local authority.

(4) The court shall have power to reverse any decision of a returning officer at cc original count.

(5) The costs of giving effect to an order under this section shall be paid by the local authority concerned.

9.—(1) A petition shall not be withdrawn without the leave of the court and in giving such leave the court shall be satisfied that the notice given by the petitioner pursuant to subsections (3) and (4) this section was reasonable, and in addition to the foregoing, where a petition is presented by, more than one petitioner the court, before giving such leave, shall be satisfied that all the petitioners agree to the withdrawal.

(2) Except in the case of a petition presented by the Attorney General, when applying for leave for the withdrawal of the petition, the petitioner shall submit to the court an affidavit stating:

( a ) the reasons for the proposed withdrawal, and

( b ) that, to the best of the petitioner's knowledge and belief, neither an agreement nor an undertaking has been made or entered into in relation to the withdrawal of the petition in consideration of any payment or the cesser of membership of a local authority or far any substantial reason not stated in the affidavit.

(3) Notice of intention to apply for leave to withdraw a petition shall be given by the petitioner by the publication in at least two newspapers circulating in the local area to which the petition relates of a notice to that effect and the notice shall also state the time and place at which the application will be heard and that any person may apply to the court to be substituted for the petitioner.

(4) Except in the case of a petition presented by the Attorney General, a copy of the affidavit mentioned in subsection (2) of this section together with notice of the time and place at which the application will be heard shall be given by the petitioner to the Attorney General who may be represented at, and if he thinks fit, oppose the application.

(5) Where the petition has been presented by more than one petitioner, the affidavit mentioned in subsection (2) of this section shall, unless the court otherwise directs, be made by all the petitioners.

(6) The withdrawal of a petition pursuant in this section shall not affect the liability of any person (or of his estate) for the payment of costs previously incurred.

10.—A person who makes any agreement or enters into any undertaking in relation to the withdrawal of a petition in consideration of any payment or the cesser of membership of a local authority or for any substantial reason not stated in the affidavit referred to in section 9 (2) of this Act shall be guilty of an offence and shall, on conviction on indictment, be liable to imprisonment for any term not exceeding three months or to a fine not exceeding three hundred pounds or, at the discretion of the court by whom he is convicted to both such fine and such imprisonment.

11.—(1) On the hearing of an application for leave to withdraw a petition, any person may apply to the court to be substituted as a petitioner, and the court may, if it thinks fit, substitute him accordingly.

(2) In case the court substitutes a petitioner under subsection (1) of this section and is of opinion that the application for leave to withdraw the petition was the result of any agreement or undertaking the making of which or the entering into which is declared by section 10 of this Act to be an offence, the court may direct that the security for cost given by the original petitioner shall remain as security for the costs that may be incurred by the substituted petitioner and that, to he extent of the sum named in the security, the original petitioner and his sureties, if any, shall be liable to pay the costs of the substituted petitioner.

12.—(1) Subject to section 11 (2) of this Act, a substituted petitioner shall, as nearly as may be, stand in the same position and be subject to the same liabilities as the original petitioner.

(2) In case the court substitutes a petitioner under section 11 of this Act and does not make a direction under subsection (2) of that section, or in case the court substitutes a petitioner under section 13 of this Act, the security required by section 3 of this Act in the case of a new petition and subject to the like conditions, shall be given by the substituted petitioner, and in case such security is not so given no further proceedings shall be had on the petition and the petition shall abate, but the abatement shall not affect the liability of any, person (or of his estate) for the payment of costs previously incurred.

13.—(1) A petition shall be abided by the death of a sole petitioner or of the survivor of several petitioners.

(2) The abatement of a petition by virtue of subsection (1) of this section shall not affect the liability of the petitioner or any other person (or of his estate) for the payment of costs previously incurred.

(3) At any time within the fourteen days next after the day of any such abatement, any person may apply to the court to be substituted as a petitioner and the court may, if it thinks fit, substitute him accordingly and in case the court makes an order under this section the petition shall thereupon be revived.

14.—(1) At the trial of a petition which the court does not dismiss, the court shall determine the matter at issue in the petition and shall in its order determining the petition include either—

( a ) a declaration of the correct result of the local election, or

( b ) if it considers that it is unable to determine the correct result of the election, a declaration that the whole of the election or a specified part of the election was void together with a statement of its reasons for making the declaration.

(2) The court shall have power to make such amendments in the return of persons elected made to a local authority by a returning officer as it considers necessary in consequence of its decision on a petition.

(3) A copy of the order determining the petition shall be given forthwith by the court to each of the following, namely, any person to whose election the order relate, the Minister, the secretary or clerk of the relevant local authority and the Attorney General.

15.—(1) Where the order of the court relating to a petition declares that a person was not duly elected as a member of a local authority or was not qualified for membership of a local authority or that the whole or part of a local election was void, the person to whom the declaration relates, or any person elected at such void election or void part of an election (as the case may be) shall cease to be a member of the local authority on (but not before) the day next following the day on which a copy of the order of the court given pursuant to section 14 of this Act is received by the secretary or clerk of the local authority and, subject to section 16 of this Act and subsection (2) of this section, a vacancy shall exist accordingly.

(2) Where an order mentioned in subsection (1) of this section declares that, in the place of any person declared by the order not to have been duly elected or not to have been qualified for membership of a local authority, a specified other person was ascertained to have been elected, that other person shall stand elected as a member of the local authority on (but not before) the day next following the day on which a copy of the order is received as aforesaid by the secretary or clerk of the local authority.

(3) Subject to section 16 of this Act, where an order of the court determining a petition does not contain a declaration described in subsection (2) of this section, the vacancies occurring as a result of the order in the membership of the local authority concerned shall be treated and filled as casual vacancies.

(4) As soon as practicable alter a copy at an order is given to him pursuant to section 14 of this Act, the secretary or clerk shall given notice to each member of the local authority of the terms of the order.

(5) Where a person has been returned as a member of a local authority and, subsequent to being so returned, the person sits, votes or otherwise participates as a member in the business of the authority or purports to do anything by virtue of membership of the authority and is also declared by the court not to have been duly elected to serve as a member of the authority or not to have been qualified for membership of the authority, for the avoidance of doubt it is hereby declared that anything done by the person while so participating and anything purporting to have been so done, either on or before the day on which a copy of the said order is received as aforesaid by the secretary or clerk of the local authority shall, notwithstanding the order, be valid and effectual.

(6) Where an order under this section disqualifies a person from membership of a local authority, he shall cease to be a member of any other body to which he had been appointed to represent that local authority.

16.—Where as a result of the determination by a court of a petition an election is declared void or the number of persons validly elected to membership of a local authority is less than the quorum required for meetings of he authority, the following provisions shall apply:

( a ) the election to which the petition relates shall be deemed not to have been held and the persons elected at such election shall be deemed not to have come into office,

( b ) every act done after the completion of such election and on or before the day on which a copy of the order determining the petition is received by the secretary or clerk of the local authority which was done by he persons or any one or more of the persons declared elected at such election and which purported to be an act of the local authority shall be as valid and effectual as it all the persons declared elected at such election had been validly elected and qualified to act as members of the local authority,

( c ) every such act which was done by an individual person declared elected at such election and subsequently elected to the office of chairman, vice-chairman, lord mayor or mayor of the local authority and which purported to be an act done by virtue of the said office shall be as valid and effectual as it all the persons declared elected at such election had been validly elected and qualified to act as members of the local authority and the individual person had been validly elected to the said office, and

( d ) subject to the foregoing provisions of this section, Part IV of the Act of 1941 shall have effect in relation to the local authority as if the members thereof had, immediately, after coming into office, been removed from office under that Part or, if such election was a new election within the meaning of that Part, as if such members had again been so removed from office under that Part.

17.—Where as a result of a court order the number of persons validly elected in an electoral area is less than a majority of such members the election shall be deemed not to have taken place and a new election shall take place in that electoral area under Part IV of the Local Government Act, 1941 .

18.—Except by an election of all the members of a local authority, no action shall be taken to fill a vacancy in the membership of a local authority caused by the death or cesser of such membership of a person who has died or resigned or otherwise ceased to be such member while the trial of a petition relating to him is pending or proceeding.

19.—Where at local election is not questioned by a petition within the period of twelve months beginning on the day on which the result is declared, as on and from the expiration of that period the election shall not be questioned on any grounds and the election shall be deemed to be valid for all purposes.

20.—(1) The court shall be entitled of its own volition, at any time during the trial of a petition, to direct that a particular person shall be brought before the court and shall give evidence at the trial, and where the court so directs the costs of bringing the person before the court (including any moneys payable to him as witness's expenses) shall be regarded as part of the costs of the petition.

(2) Subject to subsection (3) of this section, a person who is called as a witness at the trial of a petition shall not be excused from answering any question relating to any offence at or connected with the relevant local election on the ground that the answer thereto may incriminate or tend to incriminate him or on grounds of privilege; provided that—

( a ) witness who satisfies the court that he has answered truly all the questions which he is required by the court to answer shall be entitled to receive from the court a certificate stating that the witness has so answered, and

( b ) an answer by a witness Who has received such a certificate to a question put at the trial of a petition shall not, except in the case of any criminal proceeding for perjury in respect of the evidence, be in any proceeding, civil or criminal admissible in evidence against him.

(3) A person shall not at the trial of a petition be required to indicate how or whom he voted.

(4) Nothing in this section shall be construed as affecting the right of any party to a petition to call any person as a witness.

21.—(1) All costs, other than the costs of counting votes afresh under section 8 of this Act, of and incidental to a petition shall be in the discretion of the court which shall have power to order such costs or any part of such costs of any party to the petition to be paid by any other such party, and, where the costs or any part of the costs of any such party are so ordered to be paid by the petitioner, the court shall, where necessary, make provisions for the payment of those costs, to the extent of the amount named in the security given by the petitioner, out of or by means of such security.

(2) Without prejudice to subsection (1) of this section, where on the trial of a petition, it appears to the court that any person or persons committed electoral offences in relation to the relevant election, the court may, after giving the person or persons an opportunity of being heard to show cause why the order should not be made, if it so thinks fit order the whole or part of the costs of the petition other than the costs of counting votes afresh under section 8 of this Act to be paid by that person, or those persons or any of them, and may order that in case such costs cannot be wholly recovered from the person or persons they shall be paid by some other or others of those persons.

22.—(1) Subject to subsection (2) of this section, costs awarded against a returning officer at the trial of a petition shall be paid by the local authority concerned.

(2) Where the court is satisfied that the returning officer has been grossly negligent in the discharge of his duties, the court may order that the officer shall be liable for any costs awarded against him by the court.

(3) Where an order is made under the foregoing subsection any costs awarded against an officer which are paid out of moneys provided by the local authority concerned shall be a debt due to the authority by the officer, and such debt, in default of being discharged, shall be recoverable as a simple contract debt in any court of competent jurisdiction.

23.—(1) At any stage of the trial of a petition the court may, if it so thinks proper, on its own motion or on the application of any party to the petition, state a case for the opinion of the Supreme Court on any question of law arising at the trial.

(2) Notwithstanding anything contained in this Act; where a cue is stated under this section the court shall not determine the petition until the Supreme Court has given its decision and may adjourn the trial or any part thereof until such decision is given.

(3) Costs incurred in relation to a case stated under this section shall for all purposes be part of the costs incurred in relation to the petition.

24.—Each of the following disqualifications is hereby removed, namely,

( a ) the disqualification for membership of a local authority, of an alien, a person who is in holy orders or is a minister of any religious denomination or a person holding a paid office or place of profit under a local authority and

( b ) the disqualification for membership of a vocational education committee or a committee of agriculture of an alien or a person holding a paid office or place of profit under to committee,

and accordingly,

(i) section 58 of the Municipal Corporations (Ireland) Act, 1840 section 94 (1) of the Local Government (Ireland) Act, 1898, shall cease to have effect,

(ii) paragraph (a) of Article 12 (4) of the Schedule to the Local Government (Application of Enactments) Order, 1898, shall be construed and have effect as if "or an alien" were deleted,

(iii) paragraph (d) of the said Article 12 (4) shall cease to have effect, and

(iv) section 3 of the Agriculture (Amendment) Act, 1944 , and section 2 of the Vocational Education (Amendment) Act, 1944 (which sections apply the said Article 12 (4) to committees of agriculture and vocational education committees, respectively), shall have effect as if the references therein to Article 12 of the said Schedule as amended by any subsequent enactment were references to the said Article 12 as amended by any subsequent enactment including this section.

25.—(1) ( a ) The Minister may for the purpose of paragraph (b) of this subsection by order designate a class, description or grade of offices or employments.

( b ) For so long as an order under this subsection is in force, section 21 (1) of the Local Government Act, 1955 , shall not apply as regards an office or employment which is of a class, description or grade designated by the order.

(2) ( a ) The Minister for Education may, after consultation with the Minister, for the purpose of paragraph (b) of this subsection by order designate a class, description or grade of offices or employments.

( b ) For so long as an order under this subsection is in force, section 70 (1) of the Local Government Act, 1925 , as applied by section 26 of the Vocational Education Act, 1930 , shall not apply as regards an office or employment which is of a class, description or grade designated by the order.

(3) ( a ) The Minister for Agriculture and Fisheries may; after consultation with the Minister, for the purpose of paragraph (b) of this subsection by order designate a class, description or grade designated a class, description or grade of offices or employment.

( b ) For so long as an order under this subsection is in force section 70 (1) of the Local Government Act, 1925 , as applied by section 20 of the Agriculture Act, 1931 , shall not apply as regards an office or employment which is of a class, description or grade designated by the order.

(4) The Minister of State by whom an order under this section (including an order under this subsection) is made may by order amend or revoke the order; provided that in case the Minister of State concerned is not the Minister, an order under this subsection shall only be made after consultation with the Minister.

(5) Every order made before the 1st day of July, 1975, under this section shall be laid before each House of Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next twenty-one days on which that House has sat after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

(6) Section 70 (1) of the Local Government Act; 1925, as; applied by section 26 of the Vocational Education Act, 1930 , or by section 20 of the Agriculture Act, 1931 , shall have effect as if "or within twelve months after he has ceased to be" were deleted.

(7) Where an order under this section is proposed to be made on or after the 1st day of July, 1975, a draft thereof shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each House of the Oireachtas.

26.—Where a copy of an order petition or other document is required by this Act to be given to a person, it shall be addressed to him and shall be given to him in some one of the following ways:

( a ) by delivering it to him;

( b ) by leaving it at the address at which he ordinarily resides or, in a case in which an address for service has been furnished, at that address;

( c ) by sending it by post in a prepaid registered letter addressed to, him at the address at which he ordinarily resides, or in a case in which an address for service has been furnished, at that address.

27.—The enactments mentioned in the Schedule to this Act are hereby repealed to the extent specified in the third column of that Schedule.

28.—(1) This Act may be cited as the Local Elections (petitions and Disqualifications) Act, 1974 .

(2) The Local Elections Acts, 1963 to 1973, and this Act may be cited together as the Local Elections Acts, 1963 to 1974.

Section 27.

SCHEDULE

Enactments Repealed