Amendments Nos. 95 to 100, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed. The committee had agreed to adjourn at 4.20 p.m. but as we are entering debate on a new part of the Bill it might be opportune to adjourn now and resume at 5 p.m. Is that agreed? Agreed.
SECTION 19.
Sitting suspended at 4.15 p.m. and resumed at 5 p.m.
I move amendment No. 95:
In page 15, subsection (1), line 12, after "party" to insert "or politician".
This part of the Bill refers to disclosures. My amendments are designed to ensure that individual non-party candidates do not have an advantage over a representative of a political party or a person who stands for a political party. Section 19 does not make it clear that non-party individuals who are involved or intend to be involved in a political campaign or an election are covered by the section. If amendment No. 96 is agreed to subsection (1) (c) will refer to a "body or association which is effectively controlled by the political party or the officers thereof or an individual politician or the friends and supporters of an individual politician."
The thrust of these amendments is that political parties and bodies or associations associated to political parties are covered by the section but not individual prospective candidates — we have had many indications over the last few months that there may be many of them standing at the next election. As I understand this section, MMDS or anti-water charges candidates could accept donations from whomever they wish and would not have to declare them because they do not constitute a political party or a body or association which is a subsidiary of a political party. I see nothing in the section to prevent an intending individual non-party candidate from accepting donations.
As a party candidate I am controlled by legislation as to the donations I must disclose but a person outside the control of a political party is not subject to such controls. I will leave it at that until I hear the Minister's response to my amendments.
Amendments Nos. 95 to 100, inclusive, propose to bring within the scope of the definitions of subsidiary organisations and donation individual politicians and friends or supporters of a politician. They also seek to require donations to any organisation or person pursuing political objectives or to a member of a local authority to be disclosed.
The section, as drafted, is comprehensive and specific. This is necessary to ensure it is clear to all who come within the scope of the Bill's provisions that terms such as "individual politicians" and "persons pursuing political objectives", are very vague and loosely defined. The inclusion in the definition of subsidiary organisation of a body or association controlled by the friends or supporters of an individual politician would make the definition unwieldy and it is not necessary.
The position concerning donations to individual politicians is as follows. If the politician is a member of a party, a donation, whether given directly or indirectly to that politician, will be regarded as a donation to the party and will have to be disclosed if it exceeds the specified limit. If the politician is elected to either House of the Oireachtas or the European Parliament, he or she will have to declare the donation if it exceeds £500. If the politician is not a member of a party, a donation, whether given directly or indirectly, exceeding the specified amount will have to be disclosed if the politician is a member of either House of the Oireachtas, a representative in the European Parliament or a candidate at Dáil, Seanad or European elections — local elections are dealt with in section 60.
A donation includes a donation made directly or through an intermediary. This would cover a politician who receives a donation through a subsidiary organisation or from friends or supporters. The situation where a politician does not stand for an election but gives funds to a candidate or a member of a party is also covered either as a donation or an election expense. If the funds are used as an election expenditure without the knowledge of a candidate or party, there will be an obligation on the person or organisation incurring expenditure to inform the Public Offices Commission under section 28(7).
The real point is that the provisions of the section should apply to bodies or persons clearly identifiable in the political field. The amendments would widen the scope beyond what is reasonable. For instance, the word "politician" needs to be defined. The section already identifies political parties, elected politicians, candidates and donations given directly or indirectly to any intermediary. The section, as drafted, achieves the objective intended in that a donation made for political purposes to any member of a party, regardless of whether the member is a candidate or an elected representative, will be deemed to be made to the party and will be subject to disclosure. Likewise, donations made to an intermediary, a party, a candidate or an elected representative will be deemed to be made to the party candidate or representative.
Section 60, as drafted, provides for the making of regulations by the Minister in relation to donations to local authority members and candidates at local elections. Subsection (2)(a) of section 21, which refers to the Donation statement, should answer the Deputy's point. It states:
Not later than the seventieth day after the polling day at a Dáil or European election in a constituency, each candidate at the election who was not elected at such election shall furnish to the Public Offices Commission a written statement, in the form directed by the Minister, indicating whether in relation to the election the candidate received a donation exceeding in value the relevant amount specified in subsection (4) and furnishing in respect of each such donation the information referred to at paragraphs (a) and (b) of subsection (1).
In section 28(6), which is about the declaration by candidates as regards expenditure, there is a specific reference which would be helpful to note.
I see that.
If a party or candidate seeks to circumvent the control provisions by arranging to have a particular expenditure incurred by an ostensibly independent person or organisation, section 28(6) provides that such expenditure will be deemed to have been incurred on behalf of the party or the candidate concerned and must be accounted for by the relevant agent. Section 28(6)(c) states: "is effectively controlled by a political party or by a candidate or is or appears to be so connected with or associated with a political party or candidate that a reasonable person would believe that it is controlled or substantially influenced by that political party or candidate,".
I think we will have difficulty with that anyway at a later stage and I will come back to it in a moment but, in relation to the specific amendments before us, I see the relevance of what the Minister is saying, that is, anybody who stands as a candidate in an election must make this disclosure. Is there a time limit on it? Can a person be made to disclose what they got prior to the date on which he or she became a candidate which, in effect, is usually only about ten or 12 days before an election campaign? For instance, any one of the pressure groups, which stated an intention to put forward candidates, could raise huge sums of money at this stage. Is there any provision in the Bill which imposes a legal imperative that a person must disclose everything from the day he or she decides to be a candidate? A person only becomes a legally declared candidate on the day that person hands in his or her nomination papers. While I, as a Member, am bound by the Ethics in Public Office Act, 1995, at present and I must disclose every sum greater than £500 which I receive, a person who is not a member of a political party is not bound by that Act and or this Bill until that person hands in nomination papers. Even the paragraph which the Minister read out indicates that the Bill can oblige people only to make disclosures from the time that they are candidates in the eyes of the law. That puts me and every other Member of the House at a disadvantage. We are not all being treated equally as candidates and that is a major flaw in the Bill.
That is a pertinent point. When does the clock start ticking for donations? Is it when a person announces his or her candidature?
Section 21(2)(a) states " . . . a written statement, in the form directed by the Minister, indicating whether in relation to the election the candidate received a donation exceeding in value . . . ". I do not have an answer to that. I must look at it because there is no time limit.
It is a major problem.
I do not know if there is a solution because——
The Bill could be rendered unconstitutional if——
Not necessarily. I am not an expert but people are only candidates when they put themselves forward, they are not candidates the week before they hand in their nomination papers. It may not be possible to deal with this particular matter.
Fianna Fáil held early conventions and I am a candidate in addition to being a member of the party. Leaving aside the Ethics in Public Office Act, some Fianna Fáil activists, who are not Members of the House, are candidates designate but they will not become candidates until they forward their nomination papers. The amendments tabled in my name were originally designed to deal with that but, when I read the section, the difficulties which could arise became apparent.
Would it be useful to consider the difficulty highlighted by Deputy Dempsey in tandem with section 28(7) which refers to a person, other than the election agent, who proposes to incur the expenses being obliged to furnish information to the Public Offices Commission in writing? Would that not be a definite proposition rather than a person having to declare their candidacy which, more often than not, takes the form of a press statement? I do not know how watertight these provisions can be made. Have I overlooked a mechanism where a candidate officially declares his or her candidacy to an organ of the State?
It occurs when a person forwards their nomination papers.
That is done quite close to the election date and it is the only mechanism provided. Is there another means by which people can declare their candidacy? For example, section 28(7) refers to furnishing to the Public Offices Commission in writing the name, address and description of the person proposing to incur the expense. That provision does not refer to the candidate and it might be worth incorporating it in the section under discussion so that people could provide such information in addition to declaring their candidature.
I could foresee difficulties in that regard because, under the current system, nomination papers must be forwarded to the relevant authorities and that must be respected.
There would have to be a fixed term within which people would be obliged to declare themselves candidates.
There is merit in such a proposal.
Deputy Sargent is not allowing for splits and disagreements within parties. We will reconsider the matter but I do not know if it is possible to deal with the difficulties involved. I cannot see a way around these but we can attempt to discover one.
We have made it clear that we do not oppose this section of the Bill. However, if it is not possible to do something about this problem we will be obliged to return to the drawing board. If the McKenna judgment is referred to in one section of the Bill, it must also be referred to in this section. It would be grossly unfair if people putting themselves forward for election gained an advantage because they were members of political parties or, more particularly, Members of this House. A fundamental problem exists in this regard.
I would not necessarily accept that view. Equality can be established and, under the Ethics in Public Office Act, people are equal when they become candidates.
I have no difficulty with that.
A Member of this House will hold an advantage over someone outside when seeking support during an election campaign. It is not possible to have equality but, as far as possible, we must ensure its existence.
I do not believe there can be one set of rules for candidates who are Members of the House and another set for those who are not. I accept the general point in respect of 25 per cent of the quota, etc., but this is a more fundamental issue. The Chairman adverted to the fact that there could be difficulties unless we can ensure that everyone is operating on the same playing field but I do not know how that can be achieved. However, this is a fundamental issue which must be addressed.
We will consider the position and see if the provision can be improved. That is all I can do at this stage.
It occurs to me that a person trying to circumvent the regulations could not become a candidate at the last moment. If the Minister of State is correct, a person becomes a candidate only when they hand in the nomination papers. That usually happens approximately ten to 12 days before the election date. I believe a person should be a candidate when they are nominated by the convention of political party. It would be reasonable to make provision that a person who becomes a candidate should declare any personal donation made in the six months prior to their candidacy which could be construed as a political donation. This would help to overcome, in part, the problem to which Deputy Dempsey referred.
It might create other problems. However, action of that sort must be taken. The legislation is not tight enough, it could give certain people an advantage and is open to abuse. As far as I am aware, the Ethics in Public Office Act covers Members of the House who are not officeholders until the dissolution of the Dáil.
That is a separate obligation which goes with the job.
Yes, but it ceases the day the Dáil is dissolved. If someone offers a Member £5,000 for their election campaign 14 days before they become a candidate, under what provision of the Ethics in Public Office Act or the Bill before us is that covered?
We will reconsider the matter before Report Stage.
Is it not correct that the Ethics in Public Office Act is binding until election day?
I do not believe so because Members would not be in public office at that time.
Amendment, by leave, withdrawn.
Amendments Nos. 96 to 100, inclusive, not moved.
I move amendment No. 101:
In page 16, subsection (2)(b)(i), lines 2 to 3, to delete "18 of the First Schedule to the Act of 1977" and substitute "22 of the Second Schedule to the Act of 1997"
Amendment agreed to.
Amendments Nos. 102 and 171 are related and may be taken together by agreement. Is that agreed? Agreed.
I move amendment No. 102:
In page 16, subsection (2)(b)(ii), line 8, to delete "otherwise" and substitute "moneys provided by an institution of the European Communities or other intergovernmental organisation to which the State is a party".
Sections 19(2) and 38(3) define the term "donation" for the purposes of disclosure of donations under Parts IV and VI, respectively. Paragraphs 2(b)(ii) of these sections, which deem certain receipts and benefit in kind by an individual from public funds, arising from his or her membership of a public body not to be a donation, could be construed as extending to payments etc., for the types of persons or bodies involved. This is not the intention of the provision. These amendments provide for the deletion of the word "otherwise" which may give the provision a wider meaning than intended. They make clear that moneys received by a person from an institution of the EU or other intergovernmental organisation to which the State is party will not be regarded as a donation. This will ensure that, for example, payments received or services provided for a Member of the European Parliament will not be regarded as a donation, and neither will similar payments made available to delegates to the Council of Europe. I ask the committee to accept these amendments.
Amendment agreed to.
Amendments Nos. 103 to 105, inclusive, 172, 173 and 175 are related and may be taken together by agreement.
I move amendment No. 103:
In page 16, subsection (2)(b)(ii), line 10 to delete "1994" and substitute "1996".
These are purely technical drafting amendments to sections 19 and 38 to update references to collective citation of enactments which have been made since the presentation of the Bill.
Amendment agreed to.
I move amendment No. 104:
In page 16, subsection (2)(b)(ii), line 11 to delete "1992" and substitute "1996".
Amendment agreed to.
I move amendment No. 105:
In page 16, subsection (2)(b)(ii), line 16 to delete "1992" and substitute "1996".
Amendment agreed to.
I move amendment No. 106:
In page 17, subsection (2)(d)(ii), line 19, after "in relation to the same" to insert "Dáil, Seanad or European".
Section 19(2) defines the term "donation" and makes clear the expression covers contributions to candidates in Dáil, Seanad and European elections. This is a technical amendment to section 19(2)(d)(ii) which provides that where a person makes more than one donation during the same election to the same candidate, all such donations shall be aggregated for the purposes of disclosure under the Bill. This amendment is required to clarify that the reference to "election" in the paragraph is to Dáil, Seanad or European elections consistent with the general thrust of the section. The expression "election" used on its own is defined in section 2 as meaning a Dáil and/or a European election. I ask the committee to accept the amendment.
Another section of the Bill deals with local elections. If there are three elections of different types in one year, will donations for all of them be aggregated, including those for local elections?
Matters relating to local elections will be accommodated in the regulations and aggregated for the year.
Why is that not stated here? Why are Dáil, Seanad and European elections specified but not local elections?
That comes under section 60 which deals with local elections.
Does that section include a provision relating to donations to a candidate running in Dáil, Seanad and European elections in a single year? I am curious about this.
No more than myself. I undertake that this will be covered in the regulations but we might explore the matter further on section 60.
Amendment agreed to.
Section 19, as amended, agreed to.
SECTION 20.
I move amendment No. 107:
In page 17, subsection (2), line 34, to delete "not later than 7 days after the receipt of such donation" and substitute "within 14 days in the period after polling day".
I have no difficulty with covering anonymous donations because everyone knows what would happen if we did not. However, I have a major difficulty with expecting candidates or their agents to make a declaration within seven days. In the heat of an election campaign one is juggling many factors and trying to get everything right. My experience has been that the longer the campaign goes on the more disorganised things become. It is too onerous to expect candidates to declare anonymous donations in the middle of a campaign. It is reasonable to ask that the declaration be made within 14 days after polling day. I ask the Minister to accept the principle of the amendment — the time period does not have to be 14 days, it could be seven or 21. It is important that a declaration should be made but with due respect to the draftsman, whoever wrote this provision does not understand what a candidate goes through. I appeal directly to the Minister, rather than the officials, to change the provision.
I have great sympathy with the Deputy's point. We must ensure equality of treatment between party members and existing electoral representatives. I ask him not to press the amendment so we can consider the point and return to it.
I have a problem with that because if everything is deferred until Report Stage we will have to deal with the same number of amendments.
We are making good progress today.
Yes, but I am worried about the guillotine on Report Stage because we may not have as much time.
The Deputy will not be unhappy with our amendment but I ask for time to ensure we can proceed. I accept that seven days is too short.
One reason we are making good progress is that many Members, including myself, are refraining from contributing. It is such a small matter that the human factor should be taken into account. When one considers that the post will be a factor in making the declaration, it should be possible to accommodate a 14 day amendment. I ask that the amendment be accepted because there are bigger issues to be dealt with on Report Stage.
We want to ensure the principle applies to everyone. There is no difficulty with the point.
The point is accepted in principle. Is the amendment withdrawn?
Yes. We withdrew amendments on the Litter Pollution Bill——
You have leave to re-submit on Report Stage.
I know but I do not want to spend time discussing it then. The Minister, Deputy Howlin, accepted in principle one of our amendments to the Litter Pollution Bill but he was not forthcoming on Report Stage. I take the word of this Minister that she has accepted the principle.
We have to ensure it applies evenly. We are not raising a discrepancy, we are committed to the principle.
Amendment, by leave, withdrawn.
I move amendment No. 107a
In page 17, between lines 41 and 42, to insert the following subsection:
"(4) The accumulated value of anonymous donations to any candidate shall not exceed £2,000.".
The provisions of section 20 relating to anonymous donations are out of line with other provisions of the Bill relating to limits on spending. This section refers to limits on individual donations, not the cumulative amount of donations which can be made. If we want to avoid loopholes, it is important to take into account the amendment I tabled. I am not hung up on the figure of £2,000 but it is a round figure which could be used as an indicator of the sum which the accumulated value of anonymous donations to a candidate should not exceed. Otherwise, it will encourage a concerted effort to circumvent the principle of the section, which is to try to prevent inequality between the size of donations received by candidates. Has the Minister of State considered that in the light of this amendment?
This amendment seeks to impose a ceiling of £2,000 on the accumulative amount of anonymous donations which may be accepted. The amendment does not indicate whether the limit proposed is in respect of a certain period, such as during an election period or a year. The purpose of this Part is to bring more openness into the political system and help to reduce the dependency of political parties on large donations from private sources, particularly the corporate sector.
The amendment would mean that the type of donation which would be affected most adversely would be small contributions from many different donors which, in many cases, are meant to be a private matter for the donor, for example, church gate or other comparable collections. If the accumulated donations from any one individual exceed £500 they will have to be disclosed. However, requiring the declaration of many small contributions, such as those made to church gate collections which are still part of the activities of many parties, is not the intention of the Bill.
What is there to stop a large business person writing multiple cheques for £99 and passing them off as anonymous donations as a way of getting around what the Minister of State says she is trying to prevent?
If one gets a donation of £99 in the post one knows who sent it.
There is no upper ceiling on the number of small quantities a candidate could receive in brown paper envelopes.
A person's contributions to a political party are aggregated. Obviously, one does not know how many anonymous contributions a person has made.
That is my point.
There is no way to govern that because they are anonymous.
At the end of the day, this will have to depend on honour. Even with the £500 declarable limit, somebody could give £500 to three friends for them to make donations in their own names. There will have to be a certain amount of trust and honour involved. It will be easy to get around some of these provisions if people are bad enough to do it.
I am trying to close the loopholes. Saying it cannot be avoided is one option but we should at least indicate in the Bill that we do not see this type of avoidance as being a good idea. As the chairman said, it is ultimately a matter of honour. If there was a statement in the Bill of an upper limit on the accumulated value of anonymous donations, a person would have decide whether to flagrantly disregard that. At the moment, there is no discouragement for them not to disregard it as it is not covered by the legislation.
The aim of these provisions is not to stop people from making donations but to make it clear that donations above a certain level must be declared. The limit in the Bill of £100 on an anonymous donation is a clear signal that we do not want people to subvert the rest of the legislation by making anonymous donations. We are sending out the signal required by Deputy Sargent that we do not want people to subvert the legislation by making anonymous donations. Anybody can make a donation of £500, which does not have to be disclosed — it is anonymous to everybody except the candidate. I was slightly worried by what the Minister of State said in regard to church gate collections. My party would have grave difficulty in supporting the amendment if it were to affect such collections.
It is possible to imagine people who want to continue in the old fashioned way to give large amounts dividing the cash into suitably small proportions. If that is how it is, that it how it is, but it does not indicate a great change in current practice.
The other side of this Bill, of which we should not lose sight, relates to expenditure. There are very clear limits on expenditure and declarations must be made, which protects the common good in a way which has not pertained up until now. It is a matter of balance. We cannot interfere with the traditional church gate collection to the point which the Deputy proposes. I appreciate he is putting this forward with goodwill. However, the controls on the expenditure side deal with his concerns.
The expenditure controls are one aspect, but if the donations exceed the expenditure limit and the expenditure limit is observed, candidates will make profits, which I am sure is not unheard of.
I agree with Deputy Dempsey that subsection (2) deals with the point. Under that subsection, if one receives £101 one must furnish that information to the Public Offices Commission. That is another inherent control. We could end up without donations. The limit of £100 on an anonymous donation sends a clear signal.
I imagine there will be many donations of £99.99.
People can donate up to £500 without declaring it. The donor and the candidate are the only two people who know about such donations, which is almost anonymity. The specific limit of £100 on anonymous donations meets the point made by Deputy Sargent.
It is raising the flag.
Amendment, by leave, withdrawn.
Section 20 agreed to.