Amendments Nos. 120 to 125, inclusive, and 183 to 185, inclusive, are related and may be discussed together by agreement.
SECTION 25.
Chairman
I move amendment 120:
In page 20, subsection (1)(a), line 29, to delete "On or before the last day for receiving nominations" and substitute "Before incurring any election expenses".
Amendments Nos. 120, 123 and 183 provide that the appointment of an agent should be made before any election expenses are incurred by the party or candidate concerned. This is to ensure that a party or candidate incurring election expenses at any time before an election will be in a position to account for such expenses and that proper records of expenditure may be kept.
Amendments Nos. 121, 122, 124, 125, 184 and 185 are drafting amendments to sections 25 and 45 and are consequential on amendments Nos. 120, 123 and 183. I ask the committee to accept them.
Sitting suspended at 10.30 a.m. and resumed at 11 p.m.
I am concerned about the wording of this amendment. The Bill states: "On or before the last day for receiving nominations". Between the date of the dissolution of the Dáil and the close of nominations all parties would be severely tempted to order and pay for items and they would be within the technical limits. That is the reason the Minister introduced this amendment. However, what she is proposing is open to all sorts of legal and other difficulties. My main difficulty is with defining "election expenses". There is a definition of election expenses but I am thinking more in terms of a malicious attempt to smear a party. A poster campaign, such as the one Fianna Fáil is running at present, is clearly geared towards the election. If Fianna Fáil or any party decided to run a limited poster campaign outside the context of an election, such as the Fianna Fáil RPT poster campaign in October, to boost membership or the image of the party, it could still be deemed by people to be an election expense because it is designed to gain electoral support for the party. I am concerned that if the party does not have an agent in place, it could be accused of trying to circumvent this provision.
This is too vague and imprecise. We talked about it earlier in a different context and the Minister made it clear that if a candidate is looking for a person's first preference vote in literature, that is obviously election literature, no matter when it is produced but there is nothing about looking for a person's first preference vote in the present Fianna Fáil poster campaign, which involves a slogan and the party leader's image. We could claim legitimately that this is only part of a campaign to improve the party leader's image, not that he needs it. That is a legitimate argument. A person could then say that it is an election expense and that the party has not appointed an agent and we could say that was not the case because it is not part of an election campaign. It would degenerate into an argument. Fianna Fáil generally loses such arguments because people are predisposed to believe the worst of us and the best of others.
While I accept the principle of the amendment, it is a vague and imprecise phrase to include in a Bill. It would be better if the Minister changed it and stated that "each party shall have a national election agent who then becomes responsible" rather than stating "before incurring any election expenses" because the definition is subject to interpretation by individuals who want to attack and damage people politically and it is also subject to interpretation by the courts, if the matter goes that far. The way to do this is to provide that each party appoints a national agent in a permanent capacity otherwise there will be horrendous difficulties in the future.
The Deputy has stated the problem and this amendment is the solution. At the risk of repeating myself, we must remember that this Bill is now centred on the candidate, in a way in which the original Bill was not, as a result of the McKenna case. The principle and ethos of that judgment was that candidates must be treated equally and what may apply to political parties does not necessarily apply to candidates. The matter of the agent tying in with the candidate is one which must be dealt with as it is not just about political parties. We must keep moving away from that mindset even though it makes life simpler. Politics is messy, however, and it is not always organised properly on nice neat lines.
Nobody would agree now that "on or before the last day for receiving nominations" is acceptable so we are amending it to read "before incurring any election expenses" on the basis that at least that sets a point. We are requiring in another amendment that candidates notify the agent if they have incurred election expenses prior to the appointment of the agent, so there is provision for any election expenses which predate the appointment of the agent.
Election expenses are defined comprehensively in the Bill. We must amend this but we cannot amend it purely in terms of political parties because we must deal with candidates. The amendment states: "before incurring any election expenses" and allows for the fact that one may comply by appointing an agent and then realise that one has run up what could be described as election expenses, which will be determined by common sense and the definitions in the Bill. If a party conducts a campaign three years before an election on some burning issue of the day, that will hardly be described as an election expense. There will be guidelines to which people can refer.
What sanction does the Bill propose to apply to a party that fails to appoint an agent before incurring any election expenses?
If a party does not appoint an agent, the party leader, in the case of a political party, will automatically become the agent. If a party appoints an agent and it has already incurred election expenses, it will tell the agent that it has already incurred expenses which it wants him or her to record.
Where is the party leader referred to in this measure?
Section 25(3).
It is section 59(3), "the leader of the party". I realise that we will deal with this matter later but the phrase is a very vague one. In fact, it is meaningless from a statutory point of view.
The Minister is saying, in effect, that if a party does not appoint a national agent before incurring expenses, the party leader is deemed to be the agent and becomes responsible.
That is the case if it has not been done before the latest time for withdrawal of candidature at the election.
My question still stands. The amendment contains the phrase "before incurring any expenses"; what happens if a national agent is not appointed and expenses are incurred? Is the poll invalidated as regards that party's candidates or what sanction is provided?
There is an onus on the candidate to appoint an agent.
That is on the local plane but I am asking about the national agent.
If election expenses have already been incurred the national agent must be notified.
What happens if the party does not appoint a national agent and incurs expenses?
Chairman
It is required to appoint one.
Suppose it does not?
It is in trouble.
How?
Amendment 141 to section 28 states:
Where . . . election expenses are incurred by or on behalf of a political party or a candidate at an election before the appointment by the party or the candidate of a national agent or an election agent, as the case may be, the political party or candidate shall furnish to the relevant agent details of such expenses, together with all relevant vouchers, and such election expenses shall be deemed to be expenses incurred by the national agent or election agent, as the case may be.
That clarifies the matter.
It does not. The Minister is inserting the phrase "before incurring any election expenses" into section 27(1)(a) but what is the effect of doing that? Does it raise the possibility that a party which failed to make provision for an agent in time would have the election of its candidates invalidated or is there any sanction for failure to comply? There does not appear to be one in the rest of the Bill. The provision relating to the party leader only comes into force on the deposit of nominations and the agent must deal with pre-existing expenses retrospectively. I fail to understand why these words should be included. They raise a doubt or ambiguity.
If an election agent is not appointed before expenses are occurred it will be difficult to comply with the provision that an agent, no matter when appointed, must be fully au fait with all the election expenses incurred.
I accept that but this is not a catechism, it is a Bill. If those words are included and there is a suggestion that a party did not appoint the agent in time, could that be used to invalidate the election of that party's candidates? What is the sanction? These are important questions.
Is there any sanction under the Bill?
The Minister should re-examine the subsection and provide that every registered political party should have a national agent for the purposes of the Bill so that there will be no ambiguity arising from the phrase "before incurring election expenses". A political party must go through a registration process and during its course it would not be burdensome to disclose, for the purposes of this Bill, that it has a national agent. That would be a simpler way to meet the problem addressed in this section. When a party is registered under the Bill it has a permanent existence.
Chairman
Section 25(1)(a), as I read it, requires a national agent to be appointed.
Yes, but only before election expenses are incurred. I see Deputy Lenihan's point. He is suggesting there should be a provision that a political party has a standing national agent.
Yes. That would be easier than having vague formulae such as "before incurring any election expenses", which might lead to the invalidation of a poll if a party failed to comply with the provision.
That was the point I was making. The wording is vague and imprecise. It is open to political charges on the one hand and legal challenge on the other. My colleague, Deputy Lenihan, has further highlighted this difficulty.
In her reply to my remarks the Minister spoke about treating candidates equally but one can do nothing about single issue, non-party candidates who decide to contest an election. If a local issue candidate intends to stand and knows an election will take place in six months, there is nothing to stop him producing literature proclaiming that he will stop something happening. To all intents and purposes it is election literature, although he is fighting a particular cause. With all the will in the world, there is no way to force such a person to appoint an election agent until he becomes an official candidate through submitting nomination papers.
In this case it does not suit political parties. Part of our job is to defend our corner but we also want to produce workable legislation. If non-party candidates are to be subject to this Bill, this provision will not be workable. It may be open to challenge later but that is another day's work. In this case, parties will have to be treated differently from candidates not from registered political parties. The latter become candidates when they hand in their nomination papers and it is only then that the strictures of the section will apply to them.
I would not go that far. I accept the point about political parties but we must ensure that candidates have agents when they incur election expenses or that agents are accountable for such expenses prior to nomination papers being submitted.
We may all have that pious aspiration and it would suit political parties if individual candidates did not have an advantage over them but a pious aspiration is all it will be until they become candidates, which only happens when they are nominated. If someone produces a leaflet, declares himself a candidate and looks for votes on a single issue, that would be covered, but if he does not do something which specifically seeks support in an electoral contest, one cannot force him to include it in his election expenses. That is a problem with the Bill. It returns to the point we raised yesterday that it is not possible to treat everybody fairly and equally.
Where a candidate proposes to stand and gets all his election literature printed and paid for before he nominates an agent and puts in his nominating papers, he can be then found to be in the wrong. That would be included in election expenses. If they overshoot they are penalised in the sense that they cannot avail of the funding.
I accept that. We need to look at this section again in regard to individual candidates. The problem would be resolved if the Minister of State accepted the suggestion made by Deputy Lenihan that parties should have national agents and then focus more on the individual candidates. They should have to take into account everything they use during an election campaign. I do not know how it should be worded because that distinction must be made.
A national agent seems to be appropriate and section 27(1)(a) could easily be amended to provide that each political party which authenticates the candidature of a candidate shall appoint, for the purposes of this Part, an agent at the time of registration as a political party. In relation to candidates, we are anticipating a later linked amendment. At present, the legal time at which an agent is appointed is when the candidate submits his or her papers to the sheriff. To state: "before incurring any expenses" does not carry the matter very much further. The identity of the agent can only be disclosed then. A much tighter provision is required. It should state that the agent, on appointment, shall be responsible for all expenditure incurred prior to his appointment which directly referred to the conduct of the election campaign.
That is covered in amendment No. 141 which states "Where. . .election expenses are incurred by or on behalf of a political party or a candidate. . . the political party or candidate shall furnish to the relevant agent details of such expenses, together with all the relevant vouchers".
That goes a long way but it then suggests the words "before incurring any expenses". I am anticipating the discussion on a subsequent amendment. That might be deleted in the case of a candidate. Otherwise, it puts a question mark over the candidate.
Chairman
Is the amendment agreed?
With severe reservations, if the Minister of State will look at it again.
If the amendment is agreed I will undertake to take on board the question of political parties. We will have to find some form which deals with individual candidates. The idea of two systems operating separately would not be acceptable.
Amendment agreed to.
I move amendment No. 121:
In page 20, subsection (1)(a), line 34, to delete "said".
Amendment agreed to.
I move amendment No. 122:
In page 20, subsection (1)(a), line 34, after "day" to insert "for receiving nominations at the election".
Amendment agreed to.
I move amendment No. 123:
In page 20, subsection (2)(a), line 40 to delete "On or before the last day for receiving nominations" and substitute "Before incurring any election expenses".
Amendment agreed to.
I move amendment No. 124:
In page 20, subsection (2)(a), line 43, to delete "said".
Amendment agreed to.
I move amendment No. 125:
In page 20, subsection (2)(a), line 43, after "day" to insert "for receiving nominations at the election".
Amendment agreed to.
I move amendment No. 126:
In page 21, subsection (2)(a), line 2, after "constituency" to insert "and to the Public Offices Commission".
Subsection (2) requires each candidate at an election to appoint an election agent on or before the last day for receiving nominations. Amendment No. 126 provides for the additional requirement that the candidate also notify details of the name and address of the agent appointed by him or her to the Public Offices Commission. Such a requirement is already provided for in relation to the national agent appointed by a party under section 25(1)(a). I ask the committee to accept the amendment.
I would like to keep the amount of paperwork for potential candidates to a minimum. Will the Minister of State amend the amendment so that the returning officer for the constituency, who will have already compiled the information, will send it to the Public Offices Commission rather than the candidate?
We can look at that. Candidates have other things on their minds.
In the heat of an election campaign somebody could forget to do that. The amendment would then read "to the returning officer for the constituency who shall. . ."
We will return to that on Report Stage.
Amendment, by leave, withdrawn.
Chairman
Amendment No. 186 is related to amendment No. 127 and both may be discussed together.
I move amendment No. 127:
In page 21, subsection (5), between lines 43 and 44 to insert the following:
"(b) (i) Where a candidate who has appointed himself or herself as election agent dies before a statement of election expenses has been furnished by him or her in accordance with section 32, the personal representative of the candidate may appoint another election agent in respect of the candidate.
(ii) The personal representative of a candidate referred to in subparagraph (i) may appoint himself or herself as election agent in respect of that candidate.".
These amendments provide for the insertion of a new provision in sections 25 and 42. It provides that where a candidate at a Presidential, Dáil or European election who acts as his or her own agent dies before a statement of election expenses has been furnished by him or her, the personal representative of the candidate may appoint another agent in respect of the candidate. The main functions of the agent so appointed would be to settle the outstanding affairs of the late candidate, such as payment of accounts, furnishing of statement of election expenses, donation statement, etc. The appointment of an agent in these circumstances would also facilitate the candidate's personal representative, in that a statement of election expenses could be prepared and furnished to the Public Offices Commission.
The new section 18 inserted by an earlier amendment provides that where a candidate dies before applying for reimbursement of election expenses, the personal representative of the candidate may apply for reimbursement where the candidate died after the close of the poll and obtained the necessary threshold of votes. However, a statement of election expenses is required to be furnished to the Public Offices Commission before a candidate's personal representative may be paid in respect of the reimbursement of election expenses, under the new section 18 in the case of a candidate at a Dáil election, or regulations made under that section in the case of a candidate at a Presidential or European election.
I see the logic behind this. The amendment states that where a candidate who has appointed himself or herself as an election agent dies "the personal representative of the candidate may appoint another election agent in respect of the candidate". It further states: "The personal representative of a candidate referred to in subparagraph (i) may appoint himself or herself as election agent". The amendment uses the word "may"— what would happen if that person did not want to appoint an agent?
They have that choice.
In that case there would be no agent and no return.
There would be no claim and no return. The personal representative may choose not to.
I do not know anything about this.
If the candidate dies before the poll there must be——
We are referring to a case where a candidate dies just after the poll.
And where he or she is elected or perhaps not elected.
But reaches the quota?
Or even if he or she does not reach the quota.
Yes, the Deputy is right, even if the person does not reach the quota he or she is still a candidate.
There is a further difficulty for the Minister of State. Presumably the personal representative might have an interest if election expenses up to £5,000 could be claimed.
Yes, but if they did not——
Given the length of time it takes to extract a grant of probate, how could a personal representative be in existence in time for the purposes of complying with the time limit? Is there not a time limit within which an application may be made for the expenses?
It is 45 days.
Assuming a candidate dies within days of the poll, how can the personal representative be constituted?
Chairman
That happened. I entered politics through a by-election in 1970 because Seán Dunne died a week after he was re-elected to the Dáil.
It takes much longer than 50 or 60 days to obtain a grant of probate. A personal representative is either an executor, in the case of a will, or an administrator, in the case of an intestacy. In either case, documentation must be obtained first from the Revenue Commissioners and then the probate office in the High Court, which entails a substantial period of time. The personal representative would not, therefore, be in a position to claim the election expenses provided for in the legislation.
It may be possible to make special arrangements to allow for the fact that these matters take time.
Chairman
If an election is postponed, would there be an increase in the expenditure allowed per candidate?
There is provision for that.
Chairman
It happened previously.
The most famous case was in Sigo-Leitrim in the 1930s.
We will look at the time factor; a further amendment will probably resolve the matter. It would not be right to stipulate "shall", or force a personal representative down that road. In those circumstances it is only reasonable that if the candidate dies, the declaration dies with him or her.
It is unlikely that people will commit suicide to avoid making a declaration.
Chairman
Would the estate of a dead candidate be entitled to the £5,000, assuming it met the other requirements?
Yes. That is why there would be an interest in the personal representative proceeding with the procedure. We would allow the time frame to be different in those circumstances. However, some representatives may not want to go down that road.
They may not be in the humour to do so, especially if, after the trauma of going through an election campaign, they have the added trauma of bereavement.
They could be faced with a printer's bill; perhaps it would be convenient to be able to present it.
Amendment agreed to.
I move amendment No. 128:
In page 22, subsection (7), lines 14 and 15 to delete "15 of the First Schedule to the Act of 1977" and substitute "24 of the Second Schedule to the Act of 1997".
Amendment agreed to.
I move amendment No. 129:
In page 22, subsection (8), line 19 to delete "15 of the First Schedule to the Act of 1977" and substitute "24 of the Second Schedule to the Act of 1997".
Amendment agreed to.
Section 25, as amended, agreed to.
Section 26 agreed to.