Select Committee on Finance and General Affairs debate -
Thursday, 13 Mar 1997

SECTION 3.

Mr. Howlin

I move amendment No. 19:

In page 7, between lines 44 and 45 to insert the following subsection:

"(2) Where the Public Offices Commission, following consideration by it of a statement of election expenses furnished to it pursuant to section 32 or 48 or regulations made under section 60, finds a minor error or omission in the statement, the Commission shall furnish to the national agent, election agent or presidential election agent, as the case may be, or a person referred to in section 28 (7) or 44 (6) by whom the statement was furnished details of the error or omission, as the case may be, and the Commission shall inform the said agent or said person, as the case may be, that he or she may correct the error or make good the omission within the period of 14 days from the date on which the notification issued to the said agent or said person, as the case may be.".

The proposed new subsection (2) to be inserted by this amendment will enable the Public Offices Commission to give the relevant agent or other person who incurs election expenses and who furnishes a statement of election expenses under section 32 or section 48, an opportunity to correct a minor error or to make good an omission identified by the commission in a statement or in considering such a statement. It is proposed that a period of 14 days will be allowed for the agent to respond to such a communication. In essence, what this is about is that there will be an opportunity to correct errors which are not of huge significance, discovered after one has submitted the form to the commission. The Commission will indicate the discrepancies and a person will have 14 days in which to amend them. That latitude should be allowed.

Mr. Dempsey

Does the Minister intend that to apply if somebody puts in wrong tots or has a receipt which is not included in the amount?

Mr. Howlin

If the Gorey office spent more than I was aware of at the time, and that came to light afterwards, I would want to correct it.

Mr. Dempsey

Is it to correct an account where somebody has a bill which comes in after a statement has been made?

Mr. Howlin

Yes.

Amendment agreed to.

Mr. Dempsey

I move amendment No. 20:

In page 8, subsection (2), line 1, after "shall" to insert "contact the relevant person, outlining the alleged contravention and allowing for a response and if it still believes the Act has been contravened shall".

I am concerned about a situation where somebody believes he has discovered a huge problem or an attempt to circumvent the legislation and immediately brings this to court or sends a file to the DPP. Anything done under this Bill, any mistakes made or any deliberate flouting of this Bill will obviously be serious politically and will have the capacity, I presume, to damage a person's political reputation and personal integrity. I am anxious that, before anything like this comes into the public domain, the person should at least have an opportunity of explaining, if it can be explained, an alleged contravention of this part of the Bill.

The amendment is basically designed to allow the Public Offices Commission to make contact, in writing if necessary, with the relevant person to outline in the broadest terms — they should not have to outline in great detail, because if there is a prosecution afterwards that would be counterproductive — the alleged contravention and allow 14 days for a response to see if the person can explain this. If the person is not in a position to explain it, the Act then comes into play.

Because of the political nature of the Bill, I am anxious that a person will be given every opportunity to explain any discrepancies that might arise before they become a matter of public knowledge and are reported in newspapers. The fact that a file is sent to the Director of Public Prosecutions, irrespective of whether he decides prosecutions should follow, will be sufficient for everybody to say there is no smoke without fire. A person should at least have the right to explain discrepancies. I hope the Minister will accept the amendment.

Mr. Howlin

I have considered the amendment because I am not opposed to its principle. However, I must be careful about the burdens I place on the Public Offices Commission. I fear it would not welcome the imposition of what would amount to a quasi-judicial role in adjudicating on the possibility of conflicts under legislation such as this and asking people to give explanations so it can make a further evaluation.

If there is a suspicion that the law is breached, the correct procedure is for a determination to be made by the Director of Public Prosecutions. I am impressed by the Deputy's argument but it is a matter for the DPP to decide if there is a case to answer. The Bill does not confer an investigative role on the Public Offices Commission. Such a role would require it to consider evidence on a preliminary basis and make a determination before it passes the file to the DPP. The commission will resist the imposition of that duty. The amendment we have just accepted will allow minor errors to be corrected but if there is something of substance it will be investigated by the DPP. There is no role for the Public Offices Commission in carrying out a preliminary investigation.

Mr. Dempsey

The Minister can correct me if I am wrong, but the Public Offices Commission will have to carry out some type of investigation before it sends a file to the Director of Public Prosecutions. The Director of Public Prosecutions does not investigate matters; he operates on the basis of the contents of a file. I will argue later about the back-up and staff that will be required by the Public Offices Commission. However, the commission will have to carry out an investigation to ensure returns are accurate.

Mr. Howlin

Absolutely. However, that is not investigation with a view to making a judgment. The commission will not look behind the declaration. If a declaration has been made and there is evidence of a breach or a complaint has been made, it will prepare a file and send it to the Director of Public Prosecutions.

Mr. Dempsey

The commission's function is just to accept the statement made by each candidate or Deputy——

Mr. Howlin

——provided there is documentation to support it.

Mr. Dempsey

Is that filed away unless somebody makes a formal complaint that candidate X spent more than the limit?

Mr. Howlin

It is lodged in the Oireachtas. The commission will not be a type of Committee of Public Accounts dispatched to go through the candidate's accounts and check everything. It will lodge the declarations in the Houses of the Oireachtas and the Library. If there is a complaint it will be lodged at the commission and, if there is a suspicion of a breach of the law, the commission will pass the file for legal action to the DPP.

Mr. Dempsey

In that case my amendment is even more sensible. If somebody makes an allegation, the commission will have to carry out some degree of investigation. It will have to take out the file and go through it. Will the commission not ask the person who makes the allegation to come forward and give evidence that the allegation is more than a political charge levelled against a political enemy?

Mr. Howlin

A political or vexatious attack would be seen for what it is by the Public Offices Commission. I do not wish to impose burdens beyond its remit on the commission, but I am impressed by the purpose of the Deputy's amendment. Perhaps the Deputy will allow me to discuss it further with the Attorney General to see what can be done within the legal framework of the role of the DPP and the prescribed role of the Public Offices Commission. I will refer back to the Deputy on Report Stage and in the meantime he might withdraw the amendment. There is logic in the Deputy's argument.

Mr. Dempsey

The Minister will have to provide for an investigation branch of the Public Offices Commission if the legislation is to be properly enforced. He will probably have to establish a permanent tribunal to investigate allegations of breaches of the legislation. I will withdraw the amendment.

Mr. Lenihan

It is not clear why the director of public investigations should be involved in this matter. Usually files are submitted to the DPP by the Garda Síochána and the Garda give an opportunity to suspects to comment. The DPP would return the file if such an explanation were not included. It is true that a court, for example, can refer a matter to the DPP. However, in such a case facts are established in court which warrant a prosecution and the judge might advise that the DPP consider criminal proceedings.

The file the DPP might receive from the Public Offices Commission would not be such as to justify criminal proceedings. One could argue that the matter should not be referred to the DPP at all and that it is not properly within his functions to have a file sent to him which puts an onus on him to conduct the investigation of the offence. No other initiative will have been taken with regard to an investigation. However, the Minister said he will examine the matter.

Mr. Penrose

I support the argument being made by my Opposition colleagues. A file of this nature would be incomplete. The DPP has an evaluatory, not an investigatory, role. When there is a complaint — whether it is frivolous or substantive cannot be decided until there is an investigation -the party against whom the allegation is made should have an opportunity, before the matter is referred to anybody, to refute or explain the circumstances of the allegation. I was surprised at the reference to the DPP so early in the procedure. I thought it would be referred to somebody within the Oireachtas or within the Public Offices Commission rather than the DPP.

Mr. Howlin

I accept the objective of the Deputy's amendment. However, I must examine how it will be legally possible. I will discuss it further with the Attorney General and revert to the Deputy on Report Stage.

Amendment, by leave, withdrawn.

Mr. Dempsey

I move amendment No. 21:

In page 8, subsection (4), line 11, after "furnished" to insert "except reports which have been furnished to the Director of Public Prosecutions".

The commission has a duty to put its reports before the House and in the public domain. My concern is if it should report that allegations of contraventions of the Electoral Bill were made against certain Deputies and that the file had been referred to the Director of Public Prosecutions that would mean, in the view of the public and others, Deputy X had done something wrong and, even if the Director of Public Prosecutions reported there was no case to be answered, the report would be used politically against the person. At least half of the public would continue to believe that Deputy X was receiving and spending all sorts of money during an election campaign. For this reason, matters referred to the Director of Public Prosecutions should not be referred to in the report until such time as the DPP has made his decision. If he decides there is no case then there should be no reference to it. If there is a case, it should be reported to the House.

Mr. Howlin

I accept the thrust of what the Deputy suggests. What is proposed is an exclusion from subsection (2) of reports furnished to the DPP by the commission relating to possible contravention of provisions of the Bill. I will draft an amendment to encompass this on Report Stage.

Amendment, by leave, withdrawn.

Chairman

Amendments Nos. 22 and 115 are related.

Mr. Howlin

I move amendment No. 22:

In page 8, between lines 11 and 12 to insert the following subsections:

"(5) The Public Offices Commission—

(a) shall from time to time draw up and publish to persons to whom a provision of Part III, IV, V or VI or of regulations made under section 60 applies guidelines concerning the steps to be taken by such persons to ensure compliance by them with this Act generally and, in particular, with the provisions of those Parts and regulations, and

(b) may, at the request of a person to whom a provision of Part III, IV, or of regulations made under section 60 applies, give advice to the person in relation to any provision of this Act or of regulations made under section 60 or as to the application, in any particular case, of any such provision.

(6) When a request is made under subsection (5) (b) in relation to a particular case, the provision concerned of Part III, IV, V or VI or of regulations made under section 60 shall not, as respects the person who made the request, apply in relation to that case during the period from the making of the request to the time when advice is given by the Public Offices Commission in relation to the case or the Public Offices Commission declines to give such advice.

(7) The Public Offices Commission shall, within 21 days of the receipt by it of a request for advice under subsection (5) (b), furnish the advice to the person concerned or notify the person of its decision to decline to do so.

(8) The provisions of subsection (11) of section 32 of the Ethics in Public Office Act, 1995 shall apply and have effect in relation to the performance by the Public Offices Commission of its functions under this Act.".

This amendment provides for the insertion of new provisions in section 3. It makes specific provision for the giving of advice on the issuing of guidelines to the Public Offices Commission in relation to compliance with the provisions of the Bill and of the regulations to be drafted under section 60 and for extension to the commission of the privilege provided for in section 32 of the ethics in public office legislation in the performance of its functions.

The new provisions proposed in the amendment are similar to those in sections 25 and 32 of the ethics in public office legislation. In other words, I will ask the commission to provide guidelines so that everybody can be clear on what is expected under these sections.

Amendment No. 115 in the name of Deputy Dempsey proposes the insertion of a new provision in section 21(6) requiring the Public Offices Commission to outline in regulations steps to be taken by every person required to make a donation statement under this section. If amendment No. 21 is accepted, amendment No. 115 will not be necessary. My amendment makes provision for guidelines to be issued by the commission on donation statements and I hope the Deputy will accept this as meeting his requirement.

Mr. Dempsey

What proposals are there to put in place extra funding and staffing for the Public Offices Commission? Has that been investigated in any detail? The thrust of my amendment is to ensure clear guidelines and regulations are in place so that a person could not be found to be in breach of the legislation by omission. It is unfair if a person is unaware of the steps necessary to ensure compliance with the Bill.

Mr. Howlin

Both issues raised by the Deputy are pertinent. With the enactment of the ethics in public office legislation, the compellibility of witnesses legislation and this Bill, a whole new range of responsibilities are being devolved on an understaffed and part-time Public Offices Commission. It is rightly concerned about legislation being drafted which gives it extra duties. I have discussed this matter with Government colleagues and I will be addressing it. I may be bringing forward an amendment on Report Stage to formalise and strengthen the structure of the Public Offices Commission. This will be necessary to enable it carry out a more burdensome job. It is a challenge we must face.

There is dialogue between the commission and my Department regarding who should draw up the guidelines. There is a view that the guidelines should be politically decided by the Oireachtas and that the expertise in drafting lies in the franchise section of my Department rather than in the Public Offices Commission. I will leave the Public Offices Commission to issue such guidelines but we should have the outline proposals for the commission drawn up on a cross-party basis with the support of the officials in my Department. I will formalise that after enactment of the Bill.

Mr. Dempsey

I am glad the Minister said he might agree to a cross-party approach. The Minister has only had the experience of working within his own party where there are single candidates in constituencies. It is very difficult and we should try to work out an approach, perhaps over the Easter holidays.

Mr. Howlin

It is only fair that we know where we stand.

Amendment agreed to.

Section 3, as amended, agreed to.