I thank Senators for agreeing to consider the Electoral (Amendment) Bill, 1998, tonight at such short notice. It passed all Stages in the Dáil about 15 minutes ago. The reason for the urgency in dealing with this Bill arises from the need to have the proposed amendments operative as early as possible. For instance, today is the last day for political parties to furnish donation statements to the Public Offices Commission for the period 15 May 1997 to 31 December 1997. One of the substantive amendments proposed in the Bill has a major impact on the content of such statements. The content of donation statements already furnished will also be covered by the amendments as well as the donation statements by unsuccessful candidates, election expenditure statements and claims for reimbursement of election expenses in connection with the recent Dáil by-election. I will deal in more detail with these matters later but they are the reasons for the urgency of the Bill and the Motion for Earlier Signature by the President to be taken at the end of the debate.
The Bill makes a few substantive changes to the Electoral Act, 1997. While the Bill contains 18 sections the major changes are contained in just six of them. The other sections contain consequential drafting amendments and the normal standard sections found in a Bill. Each section is explained in the explanatory memorandum circulated with the Bill. The Dáil agreed to six amendments to the Bill which are not covered in the explanatory memorandum and I will refer to them later.
As the 1997 Act was the subject of lengthy debate only last year, I do not propose to deal at length with the principles of that Act. However, the Government accepts the principles of Part IV of the 1997 Act dealing with the disclosure of donations for political purposes and the amendments proposed will not interfere with those principles. Likewise, the Bill does not make any changes to the expenditure limits set out in the 1997 Act.
The Bill is also required at this stage to clarify certain matters arising from the legal interpretation of some of the provisions in Parts IV and V of the 1997 Act by the Public Offices Commission. While I accept that the commission is independent in the performance of its functions, its legal interpretation of some of the main sections of the 1997 Act dealing with the disclosure of donations and expenditure limits at elections requires that the Oireachtas be more specific about certain aspects of the 1997 Act so that there is no doubt as to the intentions of the Oireachtas. Some amendments also arise from experience gained from operating the provisions of the 1997 Act which is new to Members of both Houses.
Section 4 amends section 21 of the 1997 Act which provides for the reimbursement of election expenses of candidates at Dáil and European Parliament elections. The first amendment to the 1997 Act in paragraph (a) was agreed by the Dáil today as a further amendment which was not in the Bill as published. It provides that candidates at a Dáil by-election will be treated in an equal fashion to candidates at a Dáil general election with regard to the number of votes to be obtained to qualify for reimbursement of election expenses up to £5,000. The two other amendments to section 21 are drafting amendments.
Section 5 provides for amendments to the definition of donation as used in section 22 of Part IV of the 1997 Act. The first amendment in paragraph (a) provides that benefits derived by a candidate from a service rendered at an election by an individual in the employment of a political party will not be regarded as a donation to the candidate, provided the individual is not in receipt of any extra reward or benefit for that service. This is in keeping with the general thrust of the 1997 Act that benefits derived by individual candidates, elected representatives or political parties from services or facilities which are publicly funded are not deemed to be donations or an election expense.
Senators who are familiar with their party headquarters will know that it would be almost impossible to apportion the costs of an individual employed at party headquarters over candidates of the party at an election. This would involve keeping detailed records and increased bureaucracy and expense, especially for the larger parties which may have over 100 candidates standing at a general election. The administrative work involved in such an exercise is out of proportion to the benefits obtained by the individual candidate.
The amendment in paragraph (c) provides that expenditure by a political party on behalf of its candidates at an election will not be regarded as a donation to the candidates, except in the case of a monetary contribution to a candidate which will be regarded as a donation. This amendment clarifies a point raised by the Public Offices Commission.
The section also includes in paragraph (d) an amendment to the 1997 Act which provides that a donation received by a member of either House of the Oireachtas, a representative in the European Parliament or a candidate at a Dáil, Seanad or European election will be regarded as a donation to the person involved unless it is passed on by him or her to his or her political party and a written acknowledgement of the donation is received by the person from the party. In that case, the donation will be regarded as a donation to the party and will have to be disclosed by the party if it exceeds £4,000. Disclosure by the elected representative or candidate is not required in these circumstances. This amendment will clear up a legal doubt raised by the Public Offices Commission which would require double disclosure even though an individual was merely a channel between the donor and the intended beneficiary, the party.
One of the major difficulties of operating the 1997 Act as it is currently is the requirement on political parties to contact each individual member or branch to obtain details of all donations received in a year in order to ascertain if any donor gave donations the aggregate of which exceeds £4,000. Section 6(b) will amend section 24 of the 1997 Act to require a donor who makes donations to several members of the same party in the same year to furnish a donation statement to the Public Offices Commission if the donations for the year, when aggregated, exceed £4,000.
The main purpose of this amendment is to make it unnecessary for political parties, not only the larger parties but also the smaller parties, to introduce elaborate bureaucratic procedures to trace all donations, even very small donations down to raffle tickets, to every member of the party in order to ascertain if the aggregate of donations from any one source exceeds £4,000 in any year. The large bureaucratic exercise required would far outweigh the benefit sought from the present legal requirement. The amendment will put the onus on an individual who makes multiple donations to the same or different members of a political party or directly to the party to make a donation statement to the Public Offices Commission. A member of the Oireachtas, an MEP or unsuccessful candidate at all elections except local elections will still be required to submit a donation statement for any single donation exceeding £500 or multiple donations from the same source exceeding £500 at an election or in a year whichever period applies. The donation statement by a donor of multiple donations to the members of the same political party exceeding £4,000 in a year will have to include the names of the political party and of the individual donees to whom the donations were made.
The Dáil agreed earlier today to two further amendments to section 24 of the 1997 Act. The main amendment provides that a donation directly to the party as well as to individuals of the party will be included in the total sum of donations made by a single donor in a year for disclosure purposes. The second amendment is a consequential drafting amendment.
Section 6 restates, with amendment, section 24(1)(b) of the 1997 Act and provides for an extra month for political parties to furnish donation statements for the period from 15 May to 31 December 1997. The latest date for furnishing such statements will be 30 April next; the deadline for submitting donation statements by political parties will revert to 31 March in future years. The extension of time this year is necessary due to the changes proposed in the Bill.
Section 7 provides for the insertion of a new section in the 1997 Act to prohibit an elected representative, a candidate of a political party at an election or any other member of a political party from accepting a donation if he or she knows or has reason to believe that the donor in question will be required to make a donation statement and does not intend to comply with the requirement.
If, notwithstanding the prohibition on the acceptance of such a donation, an elected representative, a candidate of a party at an election or any other member or agent of a party receives a donation in such circumstances, he or she will be required to notify the Public Offices Commission and surrender the donation or its value to the commission. The Public Offices Commission will be required to cause a copy of such notification to be laid before each House of the Oireachtas and to dispose of the donation or its value in such manner as directed by the Minister for Finance.
This prohibition on accepting a donation where the donor is considering not submitting a donation statement is a corollary to the change proposed in section 6. The prohibition in the section demonstrates that the amendment proposed in section 6 is not made lightly and there is no change in the Government's attitude to the principle of disclosure of donations for political purposes.
Section 25 of the 1997 Act provides for offences and penalties for non-compliance with the various requirements in Part IV of the 1997 Act. Section 8 of the Bill provides for an amendment to insert new subsections (1A) and (1B) in section 25 to designate as an offence non-compliance with the disclosure of section 24(1A) and with the prohibition on the acceptance of a donation or other requirement of section 24A inserted by section 7.
Section 10, which amends section 31 of the 1997 Act, will clarify that the expression "election expenses" means all expenditure for electoral purposes incurred on the provision of property, goods or services for use during the period of the election. In the case of a Dáil general election this period commences on the date of the dissolution of the Dáil and ends on polling day. In the case of a Dáil by-election the period extends from the date of the issue of the writ to polling day and in the case of a European election it commences on the date of the polling day order and ends on polling day.
The amendment to section 31 also clarifies that all election expenses incurred at any time before the commencement of the relevant period for an election on the provision of property, goods or services for use during the election period will also be regarded as an election expense and will have to be accounted for by the relevant election agent. The reason for these amendments is to assist candidates at an election and the Public Offices Commission in implementing the Act.
The amendment at section 10(a) defines generally what "election expense" is for the purposes of the Act — that is, all expenditure for electoral purposes incurred in the provision of property, goods or services for use at an election during the period referred to in subsection (3). A revised subsection (3) is included at section 10(c) and it states quite clearly and unambiguously the election periods for a Dáil general election, a by-election and a European election.
It also deals with expenditure incurred before the operative date. This is important to ensure that, if expenditure is made in advance of the election period for property, goods or services for use during that period, then the expenditure will form part of the candidate's election expenditure. This will cover such items as posters, leaflets etc., or services of agencies engaged to design which are ordered, delivered and paid for well in advance of an election.
There has been much discussion on whether an elected representative's normal constituency work is to be regarded as an election expense. This work was never intended to be so regarded. Normal interaction between an elected representative and his or her constituents is not to be regarded as an election expense. This was recognised by the Public Offices Commission in the guidelines issued for the recent by-elections.
Section 32 of the 1997 Act sets out the limits on election expenses which may be incurred by candidates and political parties at a Dáil election. Section 33 provides that election expenses at European elections will be set by ministerial order which must be approved in draft form by a resolution of each House of the Oireachtas.
There are four amendments to section 32. The amendments in paragraph (a) and (c) are consequential drafting amendments. The amendment in paragraph (b) removes the ceiling of 50 per cent of the election expenses of a candidate which may be incurred by the candidate's political party with the candidate's agreement. This will le leave it open to the political party and the candidate to agree in writing an appropriate division of the candidate's expenditure limit as may be appropriate to the circumstances. A rigid limit is not appropriate when one does not know what exactly the expenditure at an election will be. The removal of the 50 per cent limit will facilitate both the candidate and the political party to come to whatever arrangement satisfies both. No change is being made in the expenditure limits, only that it will be open to a candidate to agree in writing with his or her party on the part of the candidate's expenditure limit — if any — the party can spend on a national campaign or in the candidate's constituency or both.
The provisions that expenditure by a political party under sections 32 and 33 of the 1997 Act is deemed to be expenditure incurred by the candidate will be replaced by two new provisions which specify that expenditure by a political party under section 32 in a constituency, other than expenditure by the national agent of the party, will be deemed to be expenditure incurred by the candidate and must be accounted for by the election agent of the candidate. In other words, if the expenditure by a political party is not by the national agent or under this authority, then the expenditure is the responsibility of the candidate and his or her election agent.
The amendment, at paragraph (d), also inserts a new subsection (4) which clarifies that expenditure by a party in a constituency, including expenditure by the national agent, will be deemed to be expenditure by a candidate for the purposes of the reimbursement of election expenses of the candidate. This will change the present position that all the expenditure of a party could be used by a candidate to claim recoupment of election expenditure. The new arrangement clarifies that only expenditure in the constituency can be included in the candidate's claim.
Section 18 is a transitional provision which provides that a donation statement or a presidential election donation statement already furnished to the Public Offices Commission, or a statement of election expenses to the commission relating to an election held before the coming into operation of the Bill, will be deemed to be valid if the statement in question complies with the provisions of the 1997 Act as they now stand or the provisions as amended by the Bill.
The Dáil agreed today to two further amendments to ensure that donations made between 1 January of this year and the date the Bill is enacted are covered by the Bill's provisions. The Bill will apply to donation statements to be made by unsuccessful candidates at the recent by-elections. The amendment provision on reimbursement of election expenses will also apply to unsuccessful candidates at the recent by-elections.
In conclusion, the amendments proposed in the Bill will make the 1997 Act, as amended, more workable for candidates at an election, those to whom the duty of making donation statements applies, and the Public Offices Commission in carrying out its functions under the Act.
I commend the Bill to the House.