Amendments No. 187 is related to amendment No. 132 and both amendments may be discussed together.
SECTION 28.
I move amendment No. 132:
In page 23, subsection (1)(a)(iii), lines 32 and 33, to delete "election" and substitute the following:
"election;
and shall be deemed to include all expenditure incurred in the taking of an opinion poll or similar survey by or on behalf of a political party, a political group or a candidate at an election.".
These provisions define the expression "election expenses" as any expenditure incurred in connection with an election, in promoting or opposing, directly or indirectly, the interests of a party in the case of a Dáil or European election or of a candidate in or at the election or otherwise influencing the outcome of the election. This includes the presentation of the party's or candidates policies, including commenting on the policies of other parties or candidates.
These provisions are drafted and are intended to be wide enough to bring within the definition of election expenses costs incurred in the conduct of private opinion polls commissioned for or on behalf of candidates. However, to put the matter beyond doubt, it is considered necessary to include in each of the sections a specific provision specifying that the cost of conducting such opinion polls on behalf of a party or a candidate will be regarded as an election expense. I ask the Committee to agree to the amendment.
Does election expenditure run from the date of dissolution?
The general definition applies to all election expenses. It would be a running total that would apply until the election and between elections.
Between elections?
If parties conduct opinion polls between elections, they would be regarded as an election expense. Obviously, private opinion polls are carried out by MORI and so on but if a party carries out a poll, it would be for election purposes and would give them an advantage in drafting policy, etc. That is encompassed in this provision.
When does the clock start to tick?
As regards the next election, it will be from the date of the enactment of this measure. It relates to expenses which pertain to the election itself. The day after an election a person may decide to print posters for the next election to avoid being taken into the net. Anything used in an election campaign proper is reckonable as an election expense. That is the reason we must have a time frame. If the date for starting the clock is the date from the moving of the writ, one could have all one's election expenses tied down and paid for well in advance.
There are tangible things such as posters which are used in an election but there are also intangible things like opinion polls that might be used to decide which candidates to run, for instance.
Is an opinion poll not a valuable tool in an election?
Of course it is a valuable tool. However, the Minister is treading on dangerous ground if he considers that an election expense.
The idea of this debate is to explore these points. If we start excluding things, there could be a formidable resource which is not reckonable for inclusion as an election expense. Surely the conduct of opinion or attitude polls or personality polls to decide on suitable candidates is a valuable tool in an election?
Of course it is useful. An organisation not directly involved in the election may carry out opinion polls. As the Minister said, there are organisations to whom these limits will not apply and which can spend money opposing a candidate. A deflector group in County Kildare may not like the Minister for Transport, Energy and Communications, Deputy Dukes, and may spend a considerable amount of money advertising in the Leinster Leader asking people not to vote for Deputy Dukes. He cannot counteract that because of the limits imposed on him.
We are back to the basic point of an expenditure threshold. If we do not have a threshold, the principle is lost. If decide on an expenditure threshold, which is an important principle to establish, and then start to erode it, this becomes meaningless. I wish to adopt a practical approach and I do not want to do anything which is impractical. I am willing to listen to the argument but running a coach and four through this by saying we should exclude such things and raise the limits, we make this meaningless.
It would be unconstitutional to impose limits on money being expended opposing a candidate by people who are not involved in the election. That raises a fundamental point.
Where is the equality in the McKenna judgment? I would like to make a related point. The definition of election expenses is anything used promoting or opposing a candidate or which is capable of influencing the outcome of an election. If we are to include opinion polls, which are considered capable of influencing the outcome of an election, we should revert to what Deputy Michael Smith put forward as Minister of the Environment, that is, that we should not have opinion polls, even so-called independent polls, during an election campaign. We cannot have such a dichotomy in thinking. Either an opinion poll influences the outcome of an election or it does not. If it does so and we believe that to be bad, then opinion polls should not be allowed.
Recently, I came across a document issued by one of the UK parties. It was a guideline for candidates when dealing with election expenses. I do not know if the document is out of date but if the chairman, for example, placed his photograph on a card advertising a clinic, according to the UK system that would be treated as an election expense because his photograph appeared on the card and is considered self-promotion. If one places an advertisement in a newspaper with one's photograph and mentions the fact that one is a candidate, it is considered an election expense. These regulations made my hair stand on end. We seem to be going down that route by including opinion polls. If this Government conducted an opinion poll on people's views on divorce and it threw in a couple of questions on how the Government was performing, would that be illegal? How would one decide on that in a three party coalition?
The issue is whether the opinion poll would be used in the election. Use at the election is the pivotal point. If the election were a long way off, it would be reasonable to say it would be of no immediate use. If it were very close and candidates were being chosen, then it should be included. I do not want to go down the road of which Deputy Dempsey spoke. Oireachtas work, normal clinic advertising, etc., is excluded from this and that is made clear. I agree there is a difficulty in nailing down everything with the certainty the Deputies opposite would like. Common sense will have to prevail as to what constitutes an election expense. The Public Offices Commission will give reasonable guidelines as to what is encompassed.
It is reasonable to say an opinion poll is a useful tool in an election. My fear about Deputy Dempsey's suggestion of banning opinion polls during elections is one then has the worst of both worlds. Political parties would invent opinion polls and feed them to the press. People will recall that, during the last election, Deputy Dempsey's party leader referred to his tracking polls, which some of us found dubious because they did not reflect reality.
Does the Minister know that his party's tracking polls indicated Labour were doing well which is why we had the advertising campaign in the past weeks? They are not as fictitious as the Minister might think but perhaps the results were.
The spin put on tracking polls by parties is certainly fictitious. I fear banning independently conducted and published opinion polls because spurious or inaccurate ones would be presented as an alternative. Influencing public opinion with fiction is more dubious than doing so with reality.
They should be controlled. I have often seen polls published in local papers, and sometimes national ones, purporting to be independent but with a slant put on them. It is almost unethical. The ethics of opinion polls must be regulated.
I will seek legal advice but I am not sure we can do much about an individual's right to a poll.
I am not talking about that but about misrepresenting a poll or breaching its secrecy by gaining access to a person's voting intentions.
Regulation is needed.
It sounds like a job for this committee, Chairman.
The next committee. I am looking ahead to section 28 on the issue of controlling expenditure to oppose candidates. How will that be done? How will any organisation or individual spending money opposing a candidate be controlled if they have not got a candidate?
It is envisaged that an independent third party opposing a candidate will not be possible, as far as I can determine.
It says so in section 28.
It encompasses a party indulging in negative campaigning, not only supporting their candidates but opposing others. It is an area which will be difficult.
Section 28 seems to extend to all expenditure by anyone, regardless of whether they have a candidate.
It does not but it will be extraordinarily difficult.
That is the point I make.
Section 28(7) states:
Before incurring any expenses at an election a person (other than the national agent of a political party or the election agent of a candidate or a person authorised by any such agent for the purpose of subsection (4)) who proposes to incur election expenses (within the meaning of this Part), shall furnish to the Public Offices Commission in writing——
(a) the name, address and description of the person proposing to incur the expenses,
(b) a statement of the nature, purpose and estimated amount of such expenses, and
(c) an indication of the person's connection, if any, with any party or candidate at the election.
The idea is that, if one is to involve oneself as a third party in the election, one will be required to register and will then come within its remit. There will be an endorsement for candidates by different organisations. Deputy Dempsey mentioned the deflector group. If it wanted to involved itself in a campaign to oppose the candidature of a particular party or individual, it would have to register in accordance with the requirements of section 28(7).
I could get my 11 brothers or ten to 12 other people to register for this and mount a massive negative campaign against a sitting TD or another candidate. That candidate would not be able to exceed the limits of £9,000 whereas the group could spend up to £180,000 to £190,000.
It is unlikely.
It is possible.
It has to be unconstitutional.
We continuously refer to the McKenna judgment and equality of treatment, so this area must be similarly treated. I agree with the Minister it is unlikely but it is not impossible and, if it happens, it will be too late for anyone to do anything about it.
There must be an element of common sense in this. We are working on the basis of principle which is that we will have disclosure and expenditure thresholds. Once that is established, we will be as practical as we can in dividing the expenditure between the national party and the local individual who is responsible through his local agent for ensuring expenditure is kept within the limit. Other extraneous people who wish to involve themselves must register. We cannot dovetail the law to meet every eventuality and I readily acknowledge that. No other state has been able to do it. If the Deputy says the only other solution is to abandon the principle, I reject it.
I would ban people from negative campaigning. No one should have the right to do it if they are not directly involved in the campaign.
That is unconstitutional.
It is no more unconstitutional than what is proposed here.
I am not sure individuals can be banned from spending money in voicing an opinion for or against a candidate for a specific reason.
Let us assume I do everything right until the last weekend of the campaign. I have spent my allocation, kept within my limits and decide the last four or five days are not the time for spending money. Someone arrives on the scene in the last three days of the election campaign and starts a massive negative campaign in local and national newspapers which damages me and I cannot respond to it. Surely that is unconstitutional as I am at a disadvantage.
I am sure the Deputy's national party would readily respond to that.
Not if it is an individual in a constituency.
The Minister mentioned we must have a lot of common sense and practicality but courts do not look at legislation in that way. To my mind, the court's judgment in the McKenna case was impractical but we are bound by it. The courts make decisions on the basis of constitutional law as they interpret it but that often imposes difficulties. They spend as much money opposing the candidate as they like but the candidate cannot respond.
Am I right about section 29?
Article 40 of the Constitution deals with the right of the citizen to express freely their convictions and opinions. Article _40(1) states:
. . . the education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State. The publication of utterances of blasphemous, seditious or indecent matter is an offence which shall be punishable in accordance with the law.
I do not think an attack on me would be regarded as blasphemous.
I can also see a great way for friends of a candidate to spend money on some spurious grounds.
This is not practical. One has to bring everyone——
Is the Deputy suggesting that we put some limit or ban in relation to third parties involving themselves in the campaign?
Yes, if it is constitutionally possible. No one should be allowed to spend more on an election campaign than the candidates. This will not solve this problem. If there are ten opposing candidates, one is in a 10:1 situation. However, we have to try and achieve this somehow.
The potential abuse of this situation is being exaggerated. I am willing to address this issue if the committee so wishes. I do not believe there will be a massive focus of attack on Deputy Dempsey by third parties in the campaign, or any other Deputy. There is sufficient scope within the expenditure limits for anyone to defend themselves. We are back to the base principle which is that we should have expenditure thresholds. I do not want to trample over the rights of individuals to voice their opinions.
Does paranoia come within the scope of the Bill?
Once the principles are established we should work to try to achieve them and not try to insist that every possible eventuality is a reason for not proceeding.
Apart from the practical difficulties, if one cannot restrict the amount of money being spent by those opposing a candidate it follows that one is in serious hot water if one tries to impose a restriction on the candidate's ability to answer those criticisms.
Under the McKenna judgment, in relation to a referendum, the law states that the State cannot expend money advocating a position. A third party can expend as much as it wishes. For example, a foreign state who might have an interest in the outcome of a referendum can campaign in this jurisdiction and spend any amount of money.
We have to be practical, unlike the courts. The State will ultimately decide what this means.
The McKenna decision was handed down in a short period of time. The matter had to be quickly decided by the courts. There is no guarantee that if legislation went before the courts they might not take a different view. We should not take the judgment as being written in stone.
A distinguished political practitioner described the tyranny of consistency. The same applies to the law.
Does a pre-election opinion poll fall within the definition in this sense?
If it is germane to the election. The phrased used is "for use at the election".
How would a pre-election poll be of use at an election? One does not know who the candidates are until the sheriff closes his book.
We will have to be practical about that. One does not print one's posters before being selected.
With respect, this is a little different. It is the right of the citizen to put his or her name forward. There are surprises in every election, both withdrawals and arrivals. There is a fundamental difference between polls taken before and after nominations close. Would the Minister look again at this issue?
The specific is for use at the election. That encompasses what is required.
Does that include an attitude survey?
Of course. One can have a comprehensive survey of all the issues which would be valuable. If such a poll is carried out a week before the writs are moved or a week before the nominations close that would be excluded from the scope of the Bill. However, a similar poll carried out a week after would not be fair.
If money is spent in respect of one candidate and then there is a withdrawal or a new candidate enters the race, what happens then?
The expenditure limits apply to a candidate and are divided up. If expenditure is incurred by a party that has to be a part of the party's expense.
The Minister has not entered into the area of expenses obtained by Government Deputies who are Ministers. There is a lack of equality.
Deputies have an advantage by virtue of having access to the facilities of the Oireachtas. That is excluded, as are the facilities available to Ministers.
The position relating to Ministers and the Government is far more serious. I am not talking only about the present Government. One could have an unpopular Government spending a lot of money promoting itself and the Opposition is restricted in the amount of money it can spend.
The Government is subject to the same restraints as the Opposition. Until the election of a new Taoiseach the Government is charged with carrying out the functions of Government. That goes on during an election. It would be improper to suggest that the supports available to Government should no longer be available once an election is called.
I am not talking about that. I am talking about the positions of special advisers whose contract specifically lasts for the duration of the Government. Many of these are constituency workers. This Government has the benefit of, in effect, paid constituency officers. I am not objecting to that. My point is that the Government has the benefit of that for the duration of the campaign. We do not.
The Government has support staff to carry out the business of Government. That business requires Ministers to be abroad during the campaign. Those supports are necessary. It goes a little way to equalising the disadvantage of having a full-time job during a campaign.
Under the Bill enacted at the end of last year considerable amounts of money are available to support the Fianna Fáil parliamentary party. There was a battery of advisers and support staff accompanying the Opposition spokesman as I arrived alone for a radio interview this morning. There is a coterie of staff available to Fianna Fáil and the Progressive Democrats paid for by public funds.
I will swap with the Minister for the duration of the campaign.
As long as we are not swapping after the campaign.
We are not going to agree to this amendment. Will the Minister clarify what the phrase "a political group or a candidate at an election" specifically refers to?
The group refers to the group in the European Parliament to which the person would be attached.
I want clarification on the meaning of "at an election" as used in amendment No. 132 which says "and shall be deemed to include all expenditure incurred in the taking of an opinion poll or similar survey by or on behalf of a political party, a political group or a candidate at an election.". Does the phrase "at an election" refer to a specific time or solely to the candidate?
It appears to apply to the full amendment rather than just the candidate.
It applies to the full amendment.
It says "at an election". If the amendment says this applies to these groups at an election, the Minister will have to define what "at an election" means.
I do not understand the point being made by the Deputy.
The Minister said the taking of opinion polls between elections will be included. This amendment speaks of opinion polls during an election or does "at an election" only refer to a party, political group or candidate?
It refers to a political party, a political group or a candidate at an election.
So it is a candidate at an election.
Yes. If it is unclear I will look at the matter again.
Would it not be clearer if the phrase "all expenditure at an election incurred by" was used?
That might be better.
I still oppose it.
We will look at this for Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 133:
In page 23, subsection (1) (b) (i), line 37 to delete "10 of the Act of 1977" and substitute "13 of the Act of 1977".
Amendment agreed to.
Amendments Nos. 134, 135 and 188 are related and may be taken together, by agreement.
I move amendment No. 134:
In page 23, subsection (1) (b) (iii), line 42, after "candidate" to insert "or any person or persons working on behalf of the candidate on a voluntary basis".
This concerns an area mentioned earlier by the Minister. It relates to expenses and payments at elections. The Minister has indicated the reasonable living expenses of a candidate are included. This amendment would have the effect of including any person working on behalf of a candidate on a voluntary basis. It is an attempt to cover normal expenses such as refreshment for people working on behalf of candidates. The Minister mentioned his fear that hotel owners running for election might buy dinners for everybody willy-nilly, indicating that this had happened. However, any person who gives of their time on a voluntary basis and performs this patriot task should be allowed living expenses which would include a light meal, petrol expenses and other small incidental expenses. Unless this is included we will end up with ulcers.
I have no difficulty with this amendment once the issue concerns reasonable living expenses and that provision will not be stretched to paying of an allowance. If they are voluntary workers——
I agree with the Minister that we should not have something which could place demands upon us.
On the basis that reasonable expenses is something we can leave to commonsense, I accept the amendment.
Amendment agreed to.
I move amendment No. 135:
In page 23, subsection (1) (b), between lines 42 and 43, to insert the following:
"(iv) any reasonable sum disbursed by the candidate or his agent to defray expenses incurred by voluntary workers during the course of the election campaign;".
This may have been an alternative to——
It seems to be going too far in speaking about "any reasonable sum disbursed by the candidate or his agent to defray expenses incurred by voluntary workers". Amendment No. 134 deals with this issue.
It speaks about the reasonable living expenses of a candidate.
If the Deputy is speaking about such things as petrol costs, this is covered in amendment No. 134.
If it is facilitated in amendment No. 134 then I am happy to withdraw this amendment.
Amendment, by leave, withdrawn.
I move amendment No. 136:
In page 23, subsection (1) (b) (iv), line 47, to delete "or".
This is a minor drafting amendment providing for the deletion of "or" after section 28 (1) (b)(iv). This provision specifies items deemed not to be election expenses. The use of the word "or" is superfluous.
Amendment agreed to.
Amendments Nos. 137, 170 and 190 are related and may be discussed together, by agreement.
I move amendment No. 137:
In page 24, subsection (2), line 9, after "Commission" to insert "; the commercial price of property, goods and services shall allow for any normal discounts allowed for bulk buying, prompt payment and other normal commercial incentives".
This amendment addresses another problem that might arise. The Bill does not explicitly state that discounts allowed to a candidate can be ignored for the purposes of a declaration. When buying posters in bulk or paying in cash — and prompt payment is desired around election time because of huge carrying expenses due to political parties requesting the printing of posters and leaflets — some printers offer discounts. I am concerned that the Bill provides that normal commercial discounts are not declarable. I appreciate that the Minister does not want a situation to arise where a printing bill of £750 receives a prompt payment discount of more than £600. I ask the Minister to accept this amendment to facilitate purely commercial incentives.
I understood that the Deputy accepted that the definition of "commercial price" in section 2 provides for an allowance being made for any discount which is normally given in respect of the supply or lending of property or goods of the same kind or the supply of a service of the same kind. That provision covers the point the Deputy is making.
Someone, a printer for example, could decide they were incurring a lot of expenditure on materials for an election and that would not be in line with their normal practice.
That would be covered by a very reasonable and normal discount.
That is the problem. "Normal" is what I have a problem with. A printer might not normally give a discount for prompt payment.
We are splitting hairs now.
Barristers tend to make their money splitting hairs.
I think the Deputy's point is covered by subsection (2).
Is the amendment being pressed?
The Minister has assured me that my point is covered.
It is covered as long as a £2,000 printing bill would not be discounted to £10.
Amendment, by leave, withdrawn.
I move amendment No. 138:
In page 24, subsection (3), after "section 32" to insert "; materials paid for and declared in one election campaign may be reused without declaration in a second or subsequent election".
This is very straightforward. In 1981 and 1982 we had three elections in quick succession. If material is used once it should not have to be declared a second time.
I accept the principle of the amendment and I am sure it is acceptable but, to ensure there is no doubt, I will look at this issue again for Report Stage and see whether we can decide on a wording that would make things crystal clear. I would like to ensure that this material can be recycled.
What is wrong with my wording?
The amendment is a sensible one and is environmentally friendly.
It has not been formally put to the draftsman and I do not want to formally accept it until such time as the draftsman approves it. Will the Deputy trust me until Report Stage?
Is the amendment accepted in principle?
Yes.
Amendment, by leave, withdrawn.
I move amendment No. 139:
In page 24, subsection (4) (b), line 25 after "candidate" to insert "(other than election expenses deemed under section 29(1)(b) (ii) to be election expenses incurred by that candidate)".
Amendment agreed to.
Amendments Nos. 140 and 166 are related and may be discussed together.
I move amendment No. 140:
In page 24, lines 51, 52 and in page 25, lines 1 to 10, to delete subsection (7).
Subsection (7) states:
Before incurring any expense at an election a person (other than the national agent of a political party or the election agent of a candidate or a person authorised by any such agent for the purpose of subsection (4) who proposes to incur election expenses . . . shall furnish to the Public Offices Commission in writing . . .
This appears as if somebody would be setting up a campaign against a candidate.
We debated this subsection and found it to be anti-candidate.
It is not necessarily anti-candidate.
Basically, the subsection seeks to determine that if there are anti-candidate groups they must follow procedures with the Public Offices Commission. They must supply the name and address of the person/persons who would incur expenses and they must outline the nature, purpose and estimated amount of such expenses. They must also state whether they have a connection with any party or candidate.
What is the penalty if they do not abide by the provision?
It would be an offence under the Bill.
If a group placed an advertisement in a newspaper and the newspaper carried it without adhering to this procedure, could it be held liable?
No, the person or group who took out the advertisement would be held liable. We have discussed this issue at some length. A group of people who are not related to Deputy Dempsey might decide to campaign for him on the basis that he was a good candidate. Such a group would have to register with the Public Offices Commission and would have to state any connection they have to the candidate or his political party for the purposes of accountability.
Could such a committee decide to campaign for Brian Lenihan, for example?
Yes. The Deputy would not be in position to disown them. The group must have their own registration and they must notify the Public Offices Commission, give their names and addresses, their source of funding and explain any connection they have with a candidate or a political party.
Would the expenditure incurred by such groups have to come under the personal expenditure limits of candidates?
No, it would not. Candidates would not have control over such groups. The expenditure is publicly declared but there is no limit applied in that circumstance. We cannot have a situation where ——
——a committee to oppose Brian Lenihan would be set up.
We are now discussing how we would get around the £18,000 per candidate limit.
The system would be transparent in so far as the moneys expended would be on public record. It would be unfair if a group over which a candidate had no control gobbled up expenditure limits.
The Castleknock Chamber of Commerce?
This subsection seems to be providing a big loophole in relation to expenditure.
It is effectively an electoral avoidance scheme.
It is akin to saying that this subsection is now the law and anything which foregoes it must be ignored.
If there is a direct connection between such groups and the candidate or the party, this would come under disclosure principles. That is clear from the previous subsections. This subsection applies to groups who have nothing to do with a candidate. They would have to declare whether they had any association with individual candidates or parties.
Could a political action committee be set up in County Meath by admirers of Noel Dempsey, John Bruton or whoever?
A women's political association might decide to canvass for women candidates of all parties. If they put an advertisement in the Meath newspapers urging people to vote for Deputy Wallace or whoever, that should not be included in Deputy Wallace's campaign expenditure.
I agree, but the provision makes a nonsense of the rest of the Bill.
This is the way to do that.
I now know what a political action committee is. They have such committees in America where they call them PACs.
They could re-elect candidates at no cost to the candidates.
We have to allow independent action. When we were discussing the section earlier, Deputy Dempsey wanted to ban this kind of expenditure altogether. That might be fraught with difficulty. This subsection seeks to ensure that all expenditure is accounted for. Former cumann members, who have campaigned for a Deputy during the past three or four elections, cannot claim to have no relationship with the Deputy if he sets up an independent agency.
Is that in the Bill?
The Bill states that the person's connection, if any, with a party or candidate in the election must be declared. He can announce he has no such connection.
Suppose someone tells me he respects my work in the Dáil and would like to help me in the election, although he is not a member of the Fianna Fáil Party, by setting up a committee to take out expensive newspaper advertisements in Dublin West for the duration of the campaign. Is that person deemed to be connected with me even if he has only met me at a few social functions in the constituency?
It is difficult to control that because individuals have a right to express a view. However, if such individuals or organisations wish to campaign, they must comply with this subsection. If we delete the subsection, these people could have immunity to spend what they like without making a registration.
I would have to thank the person for his support and advise him not to join Fianna Fáil because under section 28(7) I have a national agent.
We must consider section 28 in its entirety.
What difference will that make?
Section 28(6) states:
Where any election expenses . . . . .are incurred at an election by a body which ——
(a) was established by or on behalf of a political party or a candidate for the purposes of incurring election expenses or making payments in respect of such expenses or for any of the purposes referred to in subsection (1)(a), or
(b) is a member of or is a branch or subsidiary organisation . . . . .of a political party, or
(c) 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,
such expense shall be deemed to have been incurred on behalf of the party. . . . . .
This is the Minister's anti-avoidance measure.
I am willing to accept a suggestion from the learned council but it is reasonably well drafted.
Section 28(1)(a) states: "In this Part, subject to paragraph (b), "election expenses" means all expenditure incurred in connection with an election. . . .". Paragraph (b) does not exempt expenditure under subsection (7). Any such expenditure would fall under the same limits for candidates.
Section 28(1)(a) refers to candidates and parties. The exemptions in paragraph (b) refer to candidates and parties.
Section 28(1)(a) states:
"election expenses" means all expenditure incurred in connection with an election in order —
(i) to promote or oppose, directly or indirectly, the interests of a political party or a political group formed in accordance with the rules of procedure . . . . .
(ii) to promote or oppose, directly or indirectly, the election of a candidate at the election . . . . .
That does not seem to exempt expenditure under subsection (7).
I will seek clarification on that point.
It is important.
The intention is that candidates and political parties would be subject to this level of disclosure and to the cap imposed. For others who are not connected under the provisions of section 28(1)(b) but who still become involved in the campaign, the requirements of subsection (7) must be met. However, it is not my intention to attribute that to the election expenses of any individual candidate as that would be unfair. It would be unlawful to set up something at arm's length to hide such a connection. The situation is legal but I will clarify it.
Subsection (6)(b) states: "is a member of or is a branch or subsidiary organisation. . . . .". A person is either in a party or is not. Subsection (6)(a) covers a front organisation which can be easily established. However, subsection (6)(c) represents the doctrine of effective control. The problem is there is no control in the ballot box. We are talking about choices not controls. It is difficult to understand how the Minister can state this.
The ballot box is controlled as an organisation.
If someone tells me he will take out newspapers advertisements for me because he has great admiration for me, despite his party allegiances, it cannot be said that person is under anyone's effective control.
Or so connected with or associated with a candidate or party that a reasonable person would believe it is controlled or substantially influenced.
Control is not the normal relationship between a candidate and a supporter.
I thought Fianna Fáil controlled all its supporters.
That is a Stalinist left-wing concept.
It happened at one time.
I am also concerned about paragraph (c) which states that "a reasonable person would believe that it is controlled or substantially influenced".
It is to avoid setting up a front organisation.
I know that but all someone must do is prove he is a reasonable person and say he believes it is controlled or substantially influenced by a political party or candidate.
A judge must believe it.
The allegation is made that a candidate is in breach of section 28(6)(c).
This allegation could be made by the supporters of one candidate against another.
We accused one another of pulling down posters in Dublin West.
It was untrue.
It was totally untrue in both cases. I know what the Minister is trying to do.
I do not see anything wrong with it.
I do not see anything wrong with the principle.
Or the words.
The Minister is not the butt of scurrilous allegations every day of the week.
Are we discussing the Tánaiste now?
No, we will leave him out of this discussion. I propose we delete the entire section.
The proposal is to delete the subsection. However, the Deputy has argued that a non-associated organisation should make such declarations.
I accept what the Minister said but we may need to redraft it on Report Stage.
It is clearer in another subsection.
If it has the meaning indicated by the Minister, it answers the points raised about people's ability to oppose a candidate but it also creates a gaping hole in the limits purported to have been established.
I do not believe so. If an organisation is registered and has declared that it either has no connection or has a connection which is recognised, it will be seen as a device to circumvent the law and will not be of benefit to a candidate.
For the sake of argument, let us consider that the Wexford Chamber of Commerce believes the Minister is a wonderful person and there are six members of the Labour Party on the executive of that body. At a meeting of that executive it might be decided advertisements should be placed in the newspapers in support of the Minister. In that context, it would be reasonable to suggest the chamber of commerce was a connected organisation substantially influenced by the Minister because of his excellent record in Government. Equally, however, with the phrasing employed in the section, a judge could decide that reasonable allegations had been made that the chamber had been substantially influenced by the Minister.
I do not accept that argument. A judge would see the independence of a chamber of commerce or any other organisation in such circumstance. Not many organisations of that nature come out in support of candidates.
I accept that.
In normal circumstances they are independent. I could foresee a situation where SIPTU, which is affiliated to the Labour Party, might take out such advertisements. SIPTU could be identified as being connected to and influenced by the party and would probably be subsumed into the disclosure threshold.
Of an individual candidate?
Of the party in general. If SIPTU advertised in support of a candidate in a local newspaper, it would then apply to that candidate.
Would it depend on a party's constitution?
Yes.
They have not done so in my case but the INTO and the ASTI support candidates because they are teachers, not because of any political affiliation. What is the situation in that case?
If they took an advertisement in a local newspaper asking people to vote for Noel Dempsey because he is a teacher, that would fall under the provision because there is a definite statement of support for the candidate.
Even if I had no knowledge of the advertisement?
I would be dubious about any organisation taking out an advertisement in support of a candidate without informing him in advance.
Let us consider the question of a group opposed to a candidate. Such a group is not connected to a candidate but under the section——
It could be connected to another party.
Let us assume it is not and merely opposes a candidate on a matter of policy or principle.
For example, deflector systems.
If such a group takes out advertisements in local newspapers and does not register with the Public Offices Commission, has it committed an offence?
Yes.
Why is it not an offence for newspapers to carry advertisements by unregistered groups?
It might be too onerous on newspapers to have to check advertisements with the Public Offices Commission during the heat of an election campaign.
It would be a good practice of electoral law that no advertisement should be accepted following the declaration of an election unless the person or group placing that advertisement produces a certificate from the Public Services Office.
We will reflect further on that matter.
What penalties are imposed if the law is broken?
I believe there is a fine of £1,000.
Subsections (3) and (4) of section 37 apply. A person breaking the law will be liable for a fine not exceeding £1,000 if an offence is committed under section 37. However, if the offence is one referred to in section 37(2)(d) or (3)(c) he will be liable for a fine not exceeding £20,000.
Will the Minister give further consideration to this matter?
Yes. We will investigate the Chairman's point about newspapers carrying advertisements from unregistered groups.
I will withdraw the amendment on the basis that those who might put us at a disadvantage will be obliged to register.
Amendment, by leave, withdrawn.
Amendments Nos. 141 and 193 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 141:
In page 25, between lines 10 and 11, to insert the following subsection:
"(8) Where, notwithstanding the provisions of section 25(1) and (2), 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.".
Under section 28(3), all election expenses incurred before the issuing of a writ of a Dáil election or the date of the order appointing polling day at a European election must be taken into account and accounted for by a party or a candidate. A similar provision is contained in section 44(3) in respect of presidential elections.
Amendments Nos. 141 and 193 propose to insert in sections 28 and 44 that, not notwithstanding the provision in amendments Nos. 120 and 183, where a candidate incurs election expenses before the appointment of an agent, the candidate or party must furnish to the agent details of such expenses which will be deemed to be expenses incurred by the candidate or party and must be included in the relevant statement of election expenses. I ask the committee to accept the amendments. In essence, they are designed to ensure a candidate or party cannot have completed their work before the appointment of an agent and to ensure that said agent has access to all the relevant information he or she is required by law to supply to the Public Offices Commission.
This returns to the issue of election expenses. The appointment of an agent usually occurs immediately prior to an election campaign. Are candidates, prospective candidates and Members of the House obliged to keep detailed accounts of expenses, such as those connected with the conduct of opinion polls, incurred between elections?
I have never conducted an opinion poll and believe few Deputies would be concerned with that. Parties, on a national level, would incur some expenses in opinion polls but account need only be kept of those that are germane to an election campaign. In respect of other expenses, those connected to a Deputy's normal business are exempt. However, if, as an individual, one printed posters, issued a leaflet or invested in election paraphernalia one is required to keep account of the expenses involved and provide such information to the agent following his or her appointment.
Amendment agreed to.
I move amendment No. 142:
In page 25, lines 11 to 13, to delete subsection (8).
Perhaps the Minister will clarify this matter. Section 28 (8) states:
Every payment of election expenses made pursuant to this Part shall, where the said payment exceeds £100, be supported by a voucher stating the particulars of the transaction to which it relates.
Would those vouchers be sent to the Public Offices Commission? I take it they would not be sent to the Office of the Minister for Finance? I argued this point with the Minister of State on a previous occasion. In several instances returns must be made to the Minister for Finance, etc. Will the Minister confirm these vouchers will go to the public offices commission? Who will have access to them at that stage?
They go in the first instance to the public offices commission, but since the Department of Finance recoups, a statement of expenditure would be required. It is envisaged that up to £5,000 would be recouped. However, as money that has not been expended cannot be recouped there must be a vouching system, which would go to the Department of Finance.
I understand the need for a vouching system.
Over £100. Smaller items are not vouched.
A public offices commission, designed to be independent, is to be established to operate this legislation. However, everything to do with the legislation is political and involves politicians and the political process. I am concerned the Minister for Finance may appoint his programme manager to deal with these matters.
Political espionage.
All the documents will be required to be lodged in the Dáil, so we can examine them as much as we please. The expenses are public documents.
In every detail?
Yes, in respect of expenses one incurs. On what would you expend money, Chairman, that would be a cause of concern?
It is similar to the commercial secrets of a company. Declaring expenditure is one thing, but to publish confidential business is another. Why is it necessary for one's opponents to have access to one's modus operandi? No company would do it.
It is a requirement to list the items on which one has spent one's money.
Submitting information to the public offices commission is a different matter to submitting it to one's opponents.
I have no difficulty with the requirement and I cannot envisage a situation where listing my printers——
We go to great lengths to protect commercial secrets in business legislation.
What commercial secrets are involved here?
There may be political secrets. By analysing the expenditure of candidates, information may come to light that is not obvious from a political point of view. It may be reasonable to disclose that one paid £5,000 to one's printer, but to detail what was printed——
That is not required.
That would be the effect of this provision.
It refers to every item of expenditure over £100.
One may have to disclose that, say, £2,410 was paid to one's printer.
I have no difficulty with that. However, I have a difficulty with the idea that somebody may try to ascertain what was printed or advertised, etc.
It would be in the form of receipts.
Would it be sufficient merely to advise the printing costs and would details of what was printed not be required?
What is required is expenditure receipts to ensure that expenses are not fabricated.
I have no difficulty with the disclosure of individual receipts to the public offices commission. However, I have a difficulty with a provision allowing them to be examined.
I do not see why. All that is required is a list of what one expended on the election campaign.
Will the Minister confirm that it will only be necessary to indicate the amount of the expense, for example, to disclose the amount expended on printing, etc.?
Yes. Disclosure in respect of printing may include newspaper advertisements, hire of election officers, amplification equipment and other such items of expenditure.
Amendment, by leave, withdrawn.
Question proposed: "That section 28, as amended, stand part of the Bill."
It will be necessary to simplify this section. A limit should be put on expenditure by candidates and local and national organisations, with a declaration made by all three backed up by vouchers, or whatever else is required, to state that they have not exceeded the limits put on them. I am concerned about some of the matters that have come to light during the course of the discussion on this and I hope the Minister will provide further clarification, before Report Stage if possible. I am especially concerned with subsection (6)(c), dealing with influence, reasonable persons, etc.
Question put and agreed to.
NEW SECTIONS.
Does the Minister intend to move amendment No. 1 to amendment No. 144, to the effect that the words "in writing" are to be added?
I propose not to move amendment No. 1 to amendment No. 144 as I wish to reconsider the wording for Report Stage.
Amendment No. 1 to amendment No. 143 not moved.
I move amendment No. 143:
143. In page 25, before section 29, to insert the following new section:
29.—(1) (a) The aggregate of election expenses which may be incurred by or on behalf of a candidate in connection with his or her candidature at a Dáil election shall not exceed——
(i) in the case of a constituency returning three members, £14,000;
(ii) in the case of a constituency returning four members, £17,000; and
(iii) in the case of a constituency returning five members, £20,000.
(b) (i) Where a political party authenticates the candidature of a candidate at a Dáil election, the party may incur such proportion not exceeding fifty per cent. Of the amount of the election expenses which that candidate is entitled to incur at that election under paragraph (a), as may be agreed between the party and the candidate concerned.
(ii) The election expenses which a political party may incur under subparagraph (i) may relate to expenditure in the constituency concerned or otherwise, and the said election expenses shall be deemed for the purposes of paragraph (a) to be expenses incurred by that candidate.
(2) subject to subsection (1) (b) (i), the aggregate of election expenses which may be incurred by the national agent of a political party on behalf of that party at a Dáil election shall be the difference between the sum of the aggregate of election expenses which the candidates whose candidatures were authenticated by the party at the election are entitled to incur under subsection (I) (a) and the sum of the actual expenses incurred by the said candidates."
Will the Minister confirm his agreement to reconsider the limits regarding sums of money for Report Stage?
With regard to the limits, I have agreed to reconsider the figures for Report Stage.
Amendment agreed to.
I move amendment No. 144:
144. In page 25, before section 29, to insert the following new section:
30.—(1) (a) The aggregate of election expenses which may be incurred by or on behalf of a candidate in connection with his or her candidature at a European election shall not exceed the relevant amount specified for the constituency by the Minister by order under this section.
(b) (i) Where a political party authenticates the candidature of a candidate at a European election, the party may incur such proportion not exceeding fifty per cent. of the amount of the election expenses which that candidate is entitled to incur at that election under an order under this subsection, as may be agreed between the party and the candidate concerned.
(ii) The election expenses which a political party may incur under subparagraph (i) may relate to expenditure in the constituency concerned or otherwise, and the said election expenses shall be deemed for the purposes of paragraph (a) to be expenses incurred by that candidate.
(2) Subject to subsection (I)(b)(i), the aggregate of election expenses which may be incurred by the national agent of a political party on behalf of that party at a European election shall be the difference between the sum of the aggregate of election expenses which the candidates, whose candidatures were authenticated by the party at the election are entitled to incur under an order made under subsection (I) and the sum of the actual expenses incurred by the said candidates.
(3) Where an order under this section is proposed to be made, a draft thereof shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each House.".
Amendment agreed to.
Amendments Nos. 145 and 146 not moved.
Section 29 deleted.