Dáil Éireann debate -
Tuesday, 25 Jun 2002

Vol. 553 No. 5

Electoral (Amendment) (No. 2) Bill, 2002: Second Stage.

Minister for the Environment and Local Government (Mr. Cullen)

I move: "That the Bill be now read a Second Time."

The purpose of this short Bill is to provide an extension of the period for furnishing election expenses statements to the Standards in Public Office Commission by candidates at the recent general election. The period is being extended for the recent general election only, pending the outcome of an appeal to the Supreme Court, following the High Court case concerning the constitutionality of certain exemptions from election expenditure of the services and facilities provided by the Houses of the Oireachtas to outgoing Members.

In the High Court judgment, delivered on 16 May 2002, and the related High Court order, the court found that part of paragraph 2(a) and paragraph 2(c) of the Schedule to the Electoral Act, 1997, which exempt publicly funded facilities, such as postage, telephone, fax, photocopying, etc., for outgoing Members of the Dáil for the purposes of election expenditure controls are invalid, having regard to the provisions of the Constitution. The judgment stated:

Having reviewed the evidence I am satisfied beyond doubt that the facilities which are available to outgoing Members of the Dáil are of particular relevance and value to those Members who seek re-election. No tools could be more helpful or appropriate than postage, access to communications equipment and all of the other services that is theirs as of right. Even if there was no cap on the expenditure which a candidate could incur, the availability itself of such facilities and services out of public funds could be said to be unfair and discriminatory, but when one adds to that a newcomer's inability to match the value of such services by increased spending, the resulting situation is unjust, unreasonable and arbitrary.

The matters referred to in part of paragraph 2(a) are payments, services or facilities provided to a Member of the Oireachtas, a Member of the European Parliament, the holder of an elective or other public office, a political party or political group or a member or delegate to an international organisation. This exemption was included in the Act as enacted in 1997. Paragraph 2(c) was inserted by the Electoral (Amendment) Act, 2001, and provides that any expenses in respect of any property, services or facilities, in so far as those expenses fall to be met out of public funding, would not be regarded as election expenditure.

The provision of these services was also considered by the Committee on Procedure and Privileges in the last Dáil following correspondence with the Standards in Public Office Commission. These exemptions were intended to cover the cost to outgoing Members of the Oireachtas for their duties as public representatives which, as Deputies in the last and previous Dáil will be aware, does not stop on dissolution of the Dáil. There is a duty, moral if not legal, on outgoing Deputies to finalise any outstanding business. Indeed, the representative role of the Member of the Dáil is recognised in Article 15.15 of the Constitution, which states: "The Oireachtas may make provision by law for the payment of allowances to members of each House thereof in respect of their duties as public representatives and for the grant to them of free travelling and such other facilities (if any) in connection with their duties as the Oireachtas may determine."

The problem arises from the difficulty in distinguishing at election time parliamentary duties from electioneering. The view was expressed in the court case that such matters are so interrelated and intermingled that it would be difficult, if not impossible, to rigidly separate them. However, the arguments for and against were made in the High Court and the judgment delivered must be respected. The State has lodged an appeal to the Supreme Court against the order of the High Court in this case and in such circumstances I do not wish to re-state the arguments or other matters which could arise in the appeal.

To remove any uncertainty for election agents, candidates and the Standards in Public Office Commission, the Government has decided to extend the period of 56 days for furnishing election expenses statements pending the determination of the appeal to the Supreme Court. When the Bill was drafted it was hoped that the appeal would be held at an early date so that the extent of the period for furnishing election expenses statements to the Standards in Public Office Commission to 90 days would have sufficed. However, the appeal cannot be heard until October and the 90 days proposed in the Bill as published is not adequate. I will move an amendment on Committee Stage to extend the 56 day period to 167 days, which is to 31 October next, or to 21 days following the pronouncement by the Supreme Court of its decision in the appeal. I hope the appeal will be determined in early October.

The question of election expenditure limits was discussed extensively on a number of occasions in the last Dáil and in the 27th Dáil, when the Electoral Act, 1997, was debated. I do not consider it necessary to repeat the debate again this evening, except to say that, in a democracy, political parties and candidates should have an opportunity of presenting their policies and programmes to the electorate. An appropriate level of expenditure is required to avoid extravagant spending, as in the intensive and competitive atmosphere at an election, parties and candidates can be drawn into a spiral of competitive spending which can serve no real purpose. It is in everybody's interests that the expenditure limits be clear and set at sensible limits which permit the launching of an effective campaign, but at the same time will not push the expenditure norms out of reach of small parties and independent candidates.

As Deputies will be aware, the administrative requirements for implementing the Electoral Act, 1997, have become very cumbersome for candidates, political parties and the commission. I intend to review the operation of the Act later in the year with a view to simplifying the procedures and requirements imposed on candidates and political parties. I would welcome any views and suggestions from Deputies regarding this matter. Based on informal conversations there are many views within all parties and on all sides of the House and I look forward to hearing them.

Section 1 of the Bill, as published, provides for the extension of the period for furnishing election expenses statements to the commission by substituting 90 days for 56 days in subsections (1) and (6) of section 36. The section also provides for a further extension to the period by ministerial regulations, if necessary, pending the determination of the State's appeal to the Supreme Court. This will be changed by the amendment which I will be moving on Committee Stage, as already signalled to Members.

Section 2 provides the power for the Minister to make regulations extending the 90 days. It is a standard provision providing for the power to make regulations and it also provides that every regulation made under the section shall be laid before each House of the Oireachtas as soon as it has been made and that it shall be subject to annulment by a resolution passed by either House within 21 days after the regulation is made. Following the amendment I will be moving on Committee Stage to section 1 this section will not now be required. Section 3 is a standard provision providing for the short title of the Bill, its construction and collective citation.

The purpose of the Bill is simple and straightforward. It extends the time for furnishing election expenses statements to the Standards in Public Office Commission for the recent general election only. The Bill is considered necessary as overspending of the specified expenditure limits could lead to prosecution. However, this is unlikely as the High Court judgment was not delivered until late in the afternoon on the day before polling day. Up to that time candidates would have been acting in accordance with the legislation as it stood. In addition, section 43(6) of the Electoral Act, 1997, provides that it is defence to a prosecution to show that a person did not know or could not reasonably have known that he or she incurred election expenses above the specified limit. The agreement of the DPP must be obtained to proceed with a prosecution.

The Government considers therefore that the period for furnishing election expenses statements to the Commission should be extended so that candidates, their election agents, national agents of political parties and, indeed, the Commission will have the relevant matters clarified following the determination of the appeal. Needless to say, any election agent or national agent can furnish their election expenses statements to the Commission at any time. It is not necessary to await until the final date, as this could delay the recoupment of a candidate's election expenditure which can amount to a maximum of €6,348.69. Recoupment of election expenses cannot be made until an election expenses statement is received and examined by the Commission. In the case of unsuccessful candidates, a donation statement must also be furnished to the Commission before recoupment of election expenditure is made. No change has been made in the 56 day period for furnishing donation statements by unsuccessful candidates to the Commission. I commend the Bill to the House.

Mr. Allen

I congratulate the Minister on his appointment and wish him the best of luck in his term in office.

It is appalling that we are debating a Bill such as this in the House tonight. The Deputies who went through the trials and traumas of a lengthy and difficult election campaign and successfully came through it may get up some morning to find that a result could potentially be challenged in the courts because of faulty legislation, which was deemed by the High Court to be unconstitutional. I question how legislation such as this could be passed in this House and the Seanad and be signed into law then be found to be unconstitutional. I will return to this matter at a later date. A certain level of complacency was displayed by the previous Minister in regard to contesting the challenge to the Bill by Mr. Kelly.

Fine Gael will not be opposing this Bill because it is very basic legislation extending the time for furnishing election expenses statements to the Standards in Public Office Commission for the general election. It arises from the High Court decision, which is now being appealed by the Government to the Supreme Court, concerning certain exemptions to election expenditure set out in paragraph 2 of the Schedule to the Electoral Act, 1997. Initially, the Bill as published, in section 1, sought to extend the 56 day period for furnishing election expenses to 90 days after polling day or for a longer time if the Minister introduced regulations.

My amendment seeks to extend the period to 120 days because I did not want colleagues who may have been away on holidays in early September breaching the regulations, unintentionally, if the Minister fails to introduce the necessary regulation to extend the period further. The Minister's tabled amendment extending the period to 167 days or 21 days after the Supreme Court judgment meets my requirements.

The placing of limits on election spending is a charade in some respects. In my experience some people who have unlimited resources and see themselves as handicapped in their spending by the legislation carried out expensive advertising, comprehensive leaflet drops and gave generous hospitality prior to the election. To use racing terminology, those people with unlimited financial resources were already a furlong ahead before the starting gate opened.

The Standards in Public Office Commission was very helpful in its briefings to candidates prior to the election and I pay tribute to its officials who travelled the length and breadth of the country to brief general election candidates on their responsibilities. However, the whole exercise is somewhat artificial because of the manner in which the intended impact of the legislation and its requirements have been bypassed. This was an unusual election campaign, in that we knew since late last year that the election was scheduled for either April or May 2002. Because of the World Cup June was unlikely and therefore the outgoing TDs and new candidates had the opportunity to plan a six month, three month or three week campaign to suit their energy or, more important, to suit their financial resources. In my view, in many cases, personal wealth was used to raise the personal profile of wealthy candidates long before the election campaign officially commenced.

I do not wish to influence the Supreme Court appeal in any way. However, I hope that the learned judges of the Supreme Court will recognise the fact – the Minister referred to it – that persons who have served a constituency for five, ten or 20 years in Dáil Éireann cannot simply cease operation on the day the election is called. The public expect business as usual. If I did not respond to constituents' problems they would not have understood. I carried out almost all of my clinics during the election campaign and the 60 or 70 people per week who came to my clinics dur ing the election campaign expected responses. Correspondence that I received as a result of previous representations had to be forwarded to constituents with cover letters. Meetings that had been planned and appointments that had been made had to be followed through, either by letter or by telephone. I cannot accept that necessary activity during the election campaign has to be included in the election spend.

In theory I may have ceased to operate as a TD on the day that the Dáil was dissolved but in reality the public still considered me as their TD and expected the services to which they were accustomed. We are being told, quite unfairly in my view, that these services are part of the election spend. We await the judgment of the learned judges of the Supreme Court and, needless to say, we will be subject to their findings.

I welcome the Minister's assurances that he will look at the legislation again in order to simplify it. I was quite overawed by the depth of detail that, as an individual, I had to deal with at a stressful and active time. We had to be careful not to slip up in any way regarding what is very comprehensive and detailed legislation.

I also find it hard to understand why the judgment could not be given sooner than on the eve of the election so that there was no comeback for any of us. People may or may not have exceeded the limit. I know only where I stand, but some people could now find themselves in difficult situations.

I do not know how vigorously the Department and the former Minister decided to contest this case, but I ask that a copy of the defence that was made to the High Court would be made available to all of us so that we know how well our interests and the interests of the public were represented at that level.

We are here as a constructive Opposition. This Bill is designed to protect our interests and the interests of the public and I accept the Minister's assurances that he will do everything possible, with our co-operation and with our views taken into consideration, to simplify this legislation. It is legislation which we, in all good faith, could intend to comply with, but mistakes can be made and people can find themselves in awkward situations.

Because of the decision of the High Court, in constituencies where the result was a close call – in one constituency one vote separated two candidates – a simple breach of the legislation, which is now being contested, could mean that a person who has been elected could find his or her position undermined legally. We accept the constraints of the Bill and we go along with it.

Mr. Penrose

I wish to share time with Deputies Ó Caoláin, Boyle and Harkin.

I congratulate the Minister on his appointment. I look forward to working with him and to having constructive arguments as we did regarding his previous portfolio. I also congratulate Deputy Allen on his appointment as spokesman for the Fine Gael Party and congratulate all the spokespersons present.

As the Minister pointed out in his speech, this Bill was drafted to deal with the immediate accounting issues for the recent general election flowing from the case taken by Mr. Des Kelly and the Government's subsequent decision to appeal that judgment to the Supreme Court.

Mr. Kelly, a candidate in Dublin Mid-West during the last general election, took a case regarding the Electoral Act, 1997, as amended by the Electoral Act, 2001. The case centred on the inherent bias in the legislation towards sitting Deputies and Senators who could avail of State-funded facilities during an election campaign, a resource that was not available to other candidates. After argument before Mr. Justice McKenchie in the High Court, a judgment was made on Thursday, 16 May, which, as the Minister and Deputy Allen stated, was the day before the general election. The judgment upheld the arguments made on behalf of Mr. Kelly.

The Labour Party welcomes the Kelly judgment. Over the past decade the Labour Party has battled long and hard to introduce radical electoral reform. We were the first party to put the case for spending limits at election time. My colleague, Deputy Howlin, introduced this innovative and much needed measure in the Electoral Act, 1997. The spending limits we then proposed were both appropriate and measured. They allowed candidates and parties to run a professional campaign and cut out much of the waste and duplication of resources that flowed from big spending at election time, particularly from the two bigger parties because we certainly did not have any resources to do likewise.

Some 18 months ago the Minister's predecessor increased those limits. A document released under the Freedom of Information Act, 1997, and published by Magill magazine, demonstrated that not one piece of research backed up the decision to unilaterally increase election spending limits. The Labour Party viewed that decision as going against the spirit of the 1997 Act and we vigorously opposed the move which effectively granted Fianna Fáil an additional election spend of close to £1 million which it certainly spent.

None of us can gainsay the fact that the independence of the courts and their immunity from control by the Oireachtas is not absolute and, as is stated in John Kelly's constitutional tome, the 3rd edition of The Irish Constitution, it could scarcely be made so. Most of the court structures and procedures are prescribed immediately or ultimately by statutes which the Oireachtas can modify at any point in time. From a legal point of view, therefore, there is nothing to prevent the Oireachtas from acting as it is doing now and changing the law retrospectively so as to nullify the effect of a court's judgment in a particular case, or to provide for a course that does not tread or impinge on people's rights. I do not see anything being put forward in that regard.

It is obvious that the Minister and his officials would have taken cognisance of the Sinn Féin funds case – Buckley v. the Attorney General 1950 IR – in so far as there was an action pending in the High Court and a law was passed. Section 10 of that Act of 1947 provided that all further proceedings of the action should be stayed, and that the High Court, if an application was made ex parte by, or on behalf of, the Attorney General, should make an order dismissing the pending action without costs. Nothing of that nature is before us. However, it is clear that the effect of Articles 6 and 34 to 37, inclusive, of the Constitution is to vest in the court the exclusive right to determine a jurisdictional controversy between citizens and the State or between citizens and citizens as the case may be.

In bringing these proceedings, Mr. Kelly was quite properly exercising his constitutional right as he was entitled to have the matter determined by the judicial organ of the State, but that is a side issue in so far as we must examine the case of Mr. Kelly. Des Kelly's argument centred on the fact that certain facilities and privileges enjoyed by Members of the Oireachtas, such as secretarial support and Oireachtas post and telephone allowances, availed of during an election campaign must be accounted for as an election spend. Mr. Kelly was right to take his case and the Labour Party believes that the High Court judgment is correct. Our view is based on the principal of equality, that all candidates going forward at election should be fighting on a level playing pitch as far as spending limits and resources are concerned.

The State's defence in the case was weak. In his judgment Mr. Justice McKenchie welcomed the introduction of spending limits and stated that this was a healthy development for Irish democracy. He declared that legal provisions that exempted certain State-funded facilities enjoyed by Oireachtas Members were discriminatory and that there was no justification offered for this unequal treatment. He stated: "In my view, none could exist".

I have not seen Mr. Justice McKenchie's written judgment, but it appears to have been based on the principal of equality that has informed the Labour Party's approach to electoral reform from the outset. The exemptions that Mr. Kelly challenged were ruled against because they created an inequality between sitting politicians and new challengers. It was obviously unfair and it deserved to be challenged. Once the High Court made its judgment, the Labour Party argued that the State should accept this ruling and get on with the job of incorporating the judgment into electoral law. The Labour Party does not support the decision to appeal and, as such, we will, in principle, be opposing this Bill that facilitates the taking of this case.

How can one appeal the decision? Deputy Allen is right. It is important to examine the strength of the arguments made in the High Court for, and on behalf of, the people through the medium of the Attorney General. One must also examine whether there was an acceptance that they were inherently unfair and that, in effect, it was bad law and no argument could be made. Was that the position? We are not aware if that was the case and that is important.

I would like to know the grounds on which the appeal is being made to the Supreme Court. What has changed since the original hearing? Are the grounds different? I have stated that there is nothing to stop the State appealing the case. The State is obviously taking legal advice – I know all about this. However, upon what grounds is it doing so? I also know the rationale behind some of the issues; I am not altogether naive, but do question that particular aspect.

Election deposits must be mentioned because this is the second time in 12 months that a challenge by a citizen to electoral law has succeeded. Last summer the High Court rightly struck down the practice of requiring financial deposits from candidates at election time. The judgment resulted from a challenge by a Mr. Thomas Redmond from Wexford. He was formerly an unemployed builder who, on two previous occasions, was prevented from running because he could not provide the financial deposit. The requirement to pay a deposit discriminated against those who may not have had the financial wherewithal. Obviously, the High Court agreed.

Despite the fact that the State, in this case, argued that the electoral sky would fall in if financial deposits were abolished, the opposite was the case. We recently had our first general election under the new rules and, as far as I can tell from conversations with colleagues, there was no problem with the new system. It did not open the floodgates or anything else.

As I stated, the Labour Party believes the Government, on behalf of the State, should accept the McKenchie judgment, require Members and parties to amend their electoral spending limits accordingly and get on with business. However, as we now know, the State has decided to appeal, as confirmed by the Minister. I doubt if it believes it has a cogent argument to overturn the McKenchie judgment. It is more concerned with trying to limit the effect of the judgment to the date of its delivery rather than covering the entire general election campaign. We regret that decision.

Let us consider some of the details of the Bill as outlined by the Minister. A list of amendments tabled in his name have altered the Bill substantially. The Bill as originally drafted was dangerous legislation. The original Bill extended the period for furnishing returns to the Public Offices Commission from 56 to 90 days. However, it was section 2 of the Bill, which allowed the Minister extend this period by regulation, to which the Labour Party objected most strongly. Clearly, it was bad law. The Minister will be aware that the Labour Party submitted amendments early on Monday which indicated the level of our disap proval of such measures that permitted him by regulation to have a blank cheque or a movable feast.

I am always concerned about regulations which should be subject to debate in the House. I have said this on many occasions, particularly during the foot and mouth crisis. We were given assurances that a debate would take place in the House. However, it was pro forma. That is the reason I have always argued against any provision being made by secondary legislation, regulations or whatever. That is the reason I am particularly concerned.

Perhaps due to the nature of the amendments tabled by the Labour Party, it seems the Government has had a change of heart. The Minister's amendments have changed the nature of the Bill substantially and fundamentally. The new amendments directly link the shelf life of this measure to the Supreme Court appeal in the Kelly case. Most importantly, they also propose the deletion of section 2 which I applaud as a wise and prudent move. I accept the Minister's bona fides in this regard. However, the Labour Party will not support this measure as we are opposed in principle to the appeal and, therefore, cannot stand by while a measure to facilitate it is brought before the House.

I warn the Minister that he can expect principled and constructive opposition from the Labour Party in respect of future legislation emanating from his Department. We will provide vigorous and sustained opposition to the Government where we see that that is the right course to take. The Minister and especially his predecessor, Deputy Dempsey, know that when it comes to critical issues such as social housing, tenants rights, electoral reform or environmental protection, the Labour Party takes a radically different, left-wing approach to the Government.

The Bill also gives Members an opportunity to comment on a number of related issues. First, since this is the Minister's first time to address the House regarding electoral reform, he might outline his attitude to a number of critical issues in this regard. The previous Minister, Deputy Dempsey, in his tenure in the Custom House, was a great man to talk about reform, but when his record is examined one will notice that precious little was achieved. The most obvious example is the abolition of the dual mandate, on which he backed down. Is it the Minister's belief that the dual mandate should be abolished? If so, does he believe it should be abolished before the next local elections, now that the sword of Damocles that Deputy Healy-Rae held over the last Government has been removed?

On a broader issue, Members of the House were often treated to fine lectures by the previous Minister on the nature of the electoral system and his belief that the PR-STV system needed to be dismantled and replaced with what is known as the alternative member system. This system, a mix between single seat constituencies elected on a PR basis and a top-up list system, would create two classes of Member. One is the meat-and-potatoes type Member, of which I suppose I am one, who assiduously attends to constituency work as opposed to the list Member, a more philosopher king type individual who has the time and luxury to ponder and debate the great issues of the day. It is a system that never held much attraction for my good self – every philosopher king should have a good appetite for meat and potatoes also. Perhaps the Minister will offer his views on these matters.

A more immediate issue – one relevant to the substance of the Bill and the Kelly case – is the matter of pre-election spending. Fianna Fáil, in particular, engaged in a pre-election spending splurge that managed to drive a coach and four through the spirit of the 1997 Act. That is an irrefutable fact. Since the clock only started to tick on election spending on the day the Dáil was dissolved, the hundreds of thousands of pounds spent by Fianna Fáil in advance of the election will not be accounted for.

Mr. Cullen

I think we all did it.

Mr. Penrose

Anywhere I stepped I was hit by green, white and gold colours and the great Taoiseach was always smiling down at me. I got up to nothing in County Westmeath until the day before the kick-off.

Mr. Cullen

It is hard to deny the Taoiseach's attractive persona.

Mr. Penrose

Is there not a cogent argument that, just as Oireachtas Members who used State funded facilities had an unfair advantage, a Government which knows the date of the election and can plan advertising and marketing campaigns with that critical knowledge in mind also has an unfair advantage over all others? Is there not a strong argument to return to the original position of the 1997 Electoral Act and ensure electoral spending begins in advance of the official calling of the election in order that the abuse in which Fianna Fáil, in particular, engaged is done away with?

If the Kelly judgment stands as I believe it will, will facilities provided for Ministers in their role as Ministers as distinct from Members also be accounted for?

Mr. Stagg

More State cars.

Mr. Penrose

That is the problem. It will be a big issue, given—

Mr. Cullen

I have my own car.

Mr. Penrose

—the cars and drivers provided. That is what we could face. These perks of office for Ministers must be included if the Kelly judgment stands. The services of the Government media monitoring unit should also be included. As I understand it, Ministers who are candidates during an election can receive a briefing from the unit on a daily basis and get all the information they need about us. Obviously, that is an advantage. It is a vital service, one I am sure many candidates would love to have available.

The Government's record on electoral reform since 1997 has been poor to say the least. It ducked the issue of the dual mandate, fought an unemployed builder in the courts who sought to do away with financial deposits, increased spending limits for no other reason than to accommodate the corporate funded Fianna Fáil war chest and has now appealed a High Court decision that is right both in terms of law and fair play. It is true the current Minister may not be directly responsible for this record, but it is one he has to accept.

The decision to appeal the judgment in the Kelly case is wrong in the view of the Labour Party. We will not support a Bill that facilitates this decision and, as such, will oppose the Bill on Second Stage.

Caoimhghín Ó Caoláin

I thank Deputy Penrose for sharing his time with my colleagues and me. I welcome the Minister to his new position and wish him well in his role. Like Deputy Penrose, I welcomed the intervention of Mr. Kelly. It demonstrated a lot of courage and was representative of the views, not only of smaller parties and independent and new candidates of all parties, but also many of the outgoing Deputies of the 28th Dáil.

It is important that we recognise the central arguments in Mr. Kelly's case. There is, unquestionably, advantage involved in the various forms of access that the case addressed – access to postage, telecommunications equipment and printing facilities, which have not been mentioned heretofore. A raft of other advantages can accrue to an outgoing Deputy seeking re-election in a general election.

The opening sentence of the judgment statement, to which the Minister's text refers, is as follows:

Having reviewed the evidence I am satisfied beyond doubt that the facilities which are available to outgoing Members of the Dáil are of particular relevance and value to those Members who seek re-election.

I agree with the statement that "beyond doubt" there is an advantage and find it hard to believe that any Member of the House would not acknowledge that fact. This will have to be addressed and the difficulties highlighted in Mr. Kelly's focus on this unfair advantage will need to be resolved. The one word that opens up the opportunity for address is "available". The word itself, as the judgment states, does not necessarily imply use. This is where the difference lies. The services were available to all of us, but did we use them? Did we use the opportunity to our advantage while other candidates did not have the same access? These services were available to me, but I did not employ them. I made a conscious decision not to do so and I am sure that other Members, of all parties – including the Minister's colleagues – chose not to use the services for their electoral endeavours.

In once instance I sent a substantial mailing to first-time voters whom we had identified throughout the constituency. The temptation to use the free Oireachtas envelopes had to be dealt with. Being very conscious of the difficulty of the situation, and having been three times a loser in general elections, I knew that if I chose to use these services, I was placing myself on a different level from that of my 30-plus Sinn Féin colleagues in other constituencies who had no such advantage. Therefore, I chose not to use them. We used the ordinary postal services and have the receipts to show it. It will be part of the expenditure statement I present.

It is all about creating a level playing field. It is very important that this is established. I agree with the last speaker that the real winners, although there can be advantages for all candidates, have undoubtedly been those from the larger parties. I am aware from speaking to other colleagues that there were no abuses of that advantage by members of the smaller parties and the Independents. It is very important that we establish a standard that all outgoing Members of the 29th Dáil will respect if they are seeking re-election. That is part of the task before the Minister and we hope to work with him in agreeing on a workable approach.

I am opposed to the Government decision to appeal the High Court judgment in this case. It sends out the wrong message and is contrary to the spirit of a level playing field approach to the electoral process. It runs contrary to natural justice in terms of the rights of all citizens to compete as equals. I hope the Supreme Court decision will echo the High Court decision already referred to. I commend the spirit of Mr. Kelly's case to all parties and hope we will move forward, chastened but emboldened by the experience, to ensure every one of us plays his or her part in allowing for a level playing field for all candidates, whether outgoing or newcomers. I hope we put our trust in the arguments, the message and the delivery of the normal course of political engagement and leave aside the questionable access to which we have already referred. I will, accordingly, be opposing the proposition on a principled basis.

Mr. Boyle

The Green Party is opposed to the Bill because we believe it to be unnecessary. It is a Bill which intends only to cover the embarrassment of a Government which failed to draft proper legislation in the first instance and alleviate the discomfort of some in the House who failed to use the election campaign in what most would consider to be an equitable manner. Furthermore, the original electoral Bill put in place election spending limits far above what was necessary and far above the norm for other European coun tries and because of this some spent up to that level and have subsequently spent beyond it. It should not be the business of the House to bail people out of such a situation.

Much has been said in relation to election expenditure earlier in the debate. The fact that the clock only started to tick on the commencement of an election campaign meant that many individual candidates, as well as particular political parties, spent huge sums of money that were not even considered election expenditure. In my constituency some candidates, in the run up to and during the election, spent a six figure sum in seeking election and re-election. The real amendment we need in electoral legislation is one which addresses that anomaly and does not simply alleviate the discomfort of particular people and parties in the House.

If reform is needed, it is in the area of how money is raised for this process. People are asked for funds which are provided for individual candidates and political parties which subsequently – as has been witnessed up to this very week – have an undue influence on how decisions are made in the House and in this country. These are the real reforms we should be implementing. The Green Party intends to oppose the Bill on Second and Final Stages and hope subsequent legislation introduced in this area will address the very real problem in our electoral law – the lack of fairness. For instance, for the upcoming local elections in 2004 there will be no election spending limits at all. Unless enabling legislation is brought before the House we will see a spend-fest which will marginalise the smaller party and independent candidates at the lowest level of government. This is the very level at which we need a new infusion in order to make our decision-making structures relevant to the people who are opting out of what they see as the circus of politics.

Ms Harkin

I thank Deputy Penrose and the Labour Party for sharing time with us and congratulate the Minister, Deputy Cullen, on his appointment and wish him well in his tenure of office. The limits proposed on election spending for the last general election were, I presume, put in place to ensure transparency and accountability with regard to total spending by all candidates and political parties. It is quite clear that all spending for election purposes must include benefits accruing to sitting Deputies and Ministers where such benefits were used for the purpose of ensuring their re-election. A spending limit must apply to everybody equally or it has no meaning whatsoever. It cannot be a question of some being able to subtract election expenses from their total while others must add on such expenses. The Minister said political parties and candidates should have the opportunity of promoting their policies to the electorate. I agree, but it should be an equal opportunity.

The purpose of this amendment is to appeal the decision in the Desmond Kelly case to the Supreme Court. This appeal, in fact, flies in the face of natural justice because it allows certain candidates advantages over others. If the Government is in any way sincere about levelling the playing field for all candidates, it should not proceed with its appeal.

The real intent of those in Government was made clear with what I consider to be a misuse of public funds prior to the three week deadline for election spending purposes, and their actions clearly illustrate that the limits proposed on election spending to ensure equity in the system were mere window dressing. Advertisements under the guise of information regarding the national development plan were to be found in all local and national newspapers for a long period before the general election. Such advertisements featuring Ministers proclaimed the success of the NDP. One advertisement for the Department of Agriculture and Food caught my eye some weeks before the general election. It was a two page colour advertisement in the Sunday Independent featuring one senior and two junior Ministers. I telephoned the newspaper to be informed that such an advertisement would cost approximately £17,000 per page or £34,000 for two pages, just more than €43,000. Taxpayers' money was being spent by our Government to tell us that all was proceeding as planned.

We will be told that such advertisements are an attempt to inform the public about Government business. When they are accompanied by photographs of Ministers and glowing accounts of the programmes concerned, they are little more than the misuse of State funds for party political purposes while masquerading as information from Departments. In the run-up to a general election, which on this occasion was a long one of approximately six months, they constitute blatant electioneering.

An advertisement promoting the NDP by Iarnród Éireann plastered all over the place before the previous election carried the slogan, "We're not there yet, but we're getting there". This sounds remarkably like "A lot done, more to do". Is this just a coincidence or does it reveal a certain management process?

In the run-up to the recent general election, the Government disregarded the spirit of the law as contained in the Electoral Act but presumably attempted to keep to the letter of the law. Following the High Court judgment, it appears it kept to neither and the purpose of this amending legislation is to let it off the hook. In this context, I oppose the Bill.

Minister for the Environment and Local Government (Mr. Cullen)

I thank all Members for their good wishes. They were appreciated and I reciprocate by congratulating those who have been appointed to their Front Benches. I look forward to working with them for the next five years. Those who know me will know that I try to be fair and have even accepted amendments in the House. I listen carefully to what Members have to say. It is a fruitful way of going forward.

I notice that Deputy Howlin is present. I had forgotten that it was his legislation – enacted by the rainbow Government—

Mr. Howlin

Excellent legislation.

Mr. Cullen

—and not by Fianna Fáil – which was questioned and struck down as unconstitutional in the High Court. It is the original Act which is at the centre of the judgment and not the Fianna Fáil amending legislation of 2001. I say that so that we understand from where we are coming. There has been a reasonable attempt by Members on all sides of the House to get to grips with this issue.

I reject the contention of some Members that there is not equality. The purpose of the Act was to try to achieve equality of access and opportunity for those seeking election.

Mr. Howlin

Fianna Fáil fought it tooth and nail, line by line.

Mr. Cullen

The Deputy knows well that, in the context of the amending legislation and the operation of the Act by Members on all sides of the House, there is no doubt that there is a demand for transparency and equality.

I would like to respond specifically to my colleague, Deputy Penrose, who is an eminent legal person, and with whom I would not attempt to compete, and set out the reasons the appeal is going to the Supreme Court. It may be obvious to some why we must do this but I am not in a position to explain why. Much as I might like to proceed in this regard, I am precluded from doing so because an appeal is to be stated before the Supreme Court.

I thank those Members who recognised that there are serious problems with the Electoral Act from the point of view of the Public Offices Commission, election agents, political parties and Members in terms of the detail and what is included. I signalled in my speech and it has been generally welcomed that I intend to review the Act. I will seek and welcome contributions from all sides of the House. It is my hope that we will emerge from the review with all-party agreement on what should be contained if changes are to be made. We have seen the Act in operation and it is clear we need to move forward.

I and Deputy Allen and others made the point that there is, in effect, a moral obligation on a Member after the dissolution of the Dáil to deal with numerous constituency matters which arise during the election campaign. That is legitimate. As the High Court found, it is almost impossible to differentiate between electioneering and one's obligations as a Member. This is one of the issues which clearly arises irrespective of what happens going forward and I have no doubt it will arise when we review the Electoral Act.

Listening to some Members, one would think that other people who fought in the election, be they independent or a member of a political party, were in ditches and had no resources or access to telephones, communications, office facilities and so on. I can think of many people with substantial businesses who used the facilities available to them in their businesses to fight the previous general election. These were much more substantial than what was available to many outgoing Members in the election campaign. The suggestion that there was inequality because outgoing Members had some incredible advantage over everyone else is untrue and does not stand up to scrutiny.

I am not sure to what extent Members used their facilities. I cannot imagine many of us were rushing to Dublin to use them. I did not see my ministerial office from the minute the gun went off until the election was over and I did not want to know about it either. There was one objective, namely, to get out and knock on doors with my colleague, Deputy Wilkinson, with whom I competed ferociously for some of the time. There was not much advantage in my being in Dublin. Many Members would have found themselves in that position.

We need to be realistic and fair to each other when we deal with these issues. It is in our interests as politicians to implement a fair system which has equal access and is transparent and accountable to the public. That is not just the preserve of Government. I recognise it is equally in the interests of the Opposition. In doing this, we should not come to debates with the narrow political perspective that, just because the Government proposes something, the Opposition should automatically oppose it. I take the point that, in some of the Opposition views expressed, there may be some principled although very narrow grounds as to why the Labour Party, for example, opposes—

Mr. Stagg

Never mind that. What about the €2 million the Government spent before the election?

Mr. Cullen

I do not know the figures the Lab our Party spent but I know for my part that I could not wait to get into the campaign to compete with Deputy Stagg's colleague, a good friend of mine from Waterford, who appeared to be the fastest out of the trap and was campaigning well in advance of the election, as were many others throughout the country. Clearly every political party and many independent candidates were well into the field, in some cases for months, before the election was called.

To respond to a point made by Deputy Penrose, there was never a doubt about the election date. It was set in 1997 and was reiterated ad nauseam by the Taoiseach except that no one believed him. Talking about planning one's marketing campaigns was not of particular advantage to the Government because it was clear when the election would take place. We can leave these issues to one side.

It is right that the Bill is enacted. Clarity is needed, not just from the point of view of Members or political parties, but also from that of the commission. It is not just about us but all the people who are parties to the interpretation of the legislation. Its enactment is essential and is the right course of action. I have given this some thought. I do not take legal advice just because I am given it. I like to think of the wider implications but there were clearly solid grounds for appealing this decision to the Supreme Court. I hope what I have said to Deputies about the repeal of the Electoral Acts shows my intent to move forward in that area.

Deputies have raised other matters with regard to electoral reform and I assure the House that I will be examining all the issues raised in the debate. I have not come to a conclusion about all of them within the first two or three weeks of my attaining office, but, as Deputy Howlin once said, I will not be afraid to tackle them and look forward to doing so with the co-operation of the House. I commend the Bill to the House and appeal to those who are opposing it to review their position and let us get on with the real business.

Question put.

Tá

Ahern, Noel.Ardagh, Seán.Aylward, Liam.Brady, Johnny.Browne, John.Callanan, Joe.Carey, Pat.Carty, John.Cassidy, Donie.Collins, Michael.Cooper-Flynn, Beverley.Coughlan, Mary.Cregan, John.Cullen, Martin.Curran, John.de Valera, Síle.Dempsey, Tony.

Dennehy, John.Devins, Jimmy.Ellis, John.Finneran, Michael.Fitzpatrick, Dermot.Fleming, Seán.Glennon, Jim.Grealish, Noel.Hanafin, Mary.Haughey, Seán.Jacob, Joe.Keaveney, Cecilia.Kelly, Peter.Killeen, Tony.Kirk, Seamus.Lenihan, Brian. Lenihan, Conor.

Tá–continued

McCreevy, Charlie.McDowell, Michael.McEllistrim, Thomas.McGuinness, John.McHugh, Paddy.Moloney, John.Moynihan, Donal.Moynihan, Michael.Mulcahy, Michael.Nolan, M. J.Ó Cuív, Éamon.Ó Feargháil, Seán.O'Connor, Charlie.O'Dea, Willie.O'Donnell, Liz.O'Donoghue, John.

O'Donovan, Denis.O'Flynn, Noel.O'Keeffe, Ned.O'Malley, Tim.Power, Peter.Power, Seán.Ryan, Eoin.Sexton, Mae.Smith, Brendan.Smith, Michael.Treacy, Noel.Wallace, Dan.Walsh, Joe.Wilkinson, Ollie.Woods, Michael.Wright, G. V.

Níl

Boyle, Dan.Costello, Joe.Crowe, Seán.Gilmore, Eamon.Gormley, John.Harkin, Marian.Higgins, Joe.Howlin, Brendan.Lynch, Kathleen.McManus, Liz.Morgan, Arthur.Moynihan-Cronin, Breeda.Ó Caoláin, Caoimhghín.

Ó Snodaigh, Aengus.O'Shea, Brian.O'Sullivan, Jan.Pattison, Seamus.Penrose, Willie.Rabbitte, Pat.Ryan, Eamon.Sherlock, Joe.Shortall, Róisín.Stagg, Emmet.Upton, Mary.Wall, Jack.

Tellers: Tá, Deputies Hanafin and S. Power; Níl, Deputies Ó Snodaigh and Stagg.

Question declared carried.