This Bill was last in Committee on 11 October at the Select Committee. At that stage the committee, of which I was not a member, had reached section 15, amendment No. 40. All amendments not reached then lapsed, so now we are now dealing with a new list of amendments. We have 43 amendments to deal with. We begin with amendment No. 40. Amendments Nos. 41, 44 and 45 are related and will be taken together by agreement. Is that agreed? Agreed.
SECTION 15.
On a point of clarification, are there any additional amendments or has the same set of amendments been put down again?
There are additional amendments but they are mainly technical.
Perhaps when the Minister comes to the additional amendments she will point them out to members.
Yes.
I welcome the Minister of State, Deputy Fitzgerald.
I move amendment No. 40:
In page 18 subsection (2), between lines 39 and 40, to insert the following:
"(i) as a donation (within the meaning of the Electoral Act, 1995),or”.
These four amendments all relate to the definition of a donation in the Electoral Bill. We have aligned the wording used in this section, which deals with the treatment of gifts to Ministers, with the wording used in the Electoral Bill; these amendments literally change the wording used. Under the Ethics Bill, any gifts to Ministers have to be declared, including gifts that are by way of election donations. However, gifts which are worth more than £500, other than election donations, have to be surrendered and become the property of the State. That is what these amendments deal with.
These are technical amendments which deal with clarification in regard to donations. Is that correct?
That is correct. They are technical amendments. When we originally drafted the Bill we did not have the wording of the Electoral Bill which is the main legislation dealing with election donations. These amendments merely align the wording. The Electoral Bill uses the word "donations" rather than "election expenses".
So my point last year was correct when I said that as we did not have the Electoral Bill at that time there would be a discrepancy in this Bill. I have been proved correct in regard to that.
The only discrepancy that arises is in relation to the technical wording and we are correcting that.
Yes, but that was on account of the Electoral Bill. We were promised at the time that the two Bills would go hand in hand. That was my interpretation and I am glad I have been proved right.
We have to deal with the amendments as they are in front of us, irrespective of how they got here.
I appreciate your position, Chairman. Under no circumstances was I referring to you. I was going over the ground on which I was proved correct. Some had a doubt about me, but there is no doubting Thomas now.
I have no difficulty accepting your word on that, but I have to deal with the amendments as we have them now, irrespective of whether we were right or wrong before.
Perhaps the Minister would refer briefly to the purpose of section 15 and what now constitutes a gift. I would like her to refresh our memories in that regard.
If a gift is given to an office holder, a Minister or a Minister of State and if the value of that gift exceeds £500, that gift becomes the property of the State in cases where the gift is given by virtue of that office. In other words, if somebody gives a Minister a ministerial gift worth £1,000, a giant piece of Waterford glass, that becomes the property of the State. If he or she got that piece of Waterford glass, for example, in his or her capacity as president of the local golf club, he or she would be allowed keep it. That is what the section deals with.
What is the difference between that and receiving it during an election campaign?
The Electoral Bill deals with the whole area of political donations. That Bill is before the House and the House will have a full opportunity to tease it out in detail. In a case where a Minister gets a gift during an election campaign, that does not automatically become the property of the State, because that would put a Minister at a disadvantage compared with, say, a constituency colleague who would be allowed accept an election donation of £600. That is the purpose of the section. Under the Ethics Bill both kinds of donation have to be declared, but the treatment of election gifts is fundamentally one for the Electoral Bill which the House will have a full opportunity to debate.
So the grey area is where a Minister is fighting an election campaign. If I was fighting an election campaign and the Minister, Deputy Fitzgerald, was fighting an election campaign and we got a similar gift, not being an office holder, I would be in a different position from the Minister of State——
No, you are not in a different position.
——or would I be? That is the question.
The purpose of that part of the section dealing with election expenses, or "donations" as they are now, is to ensure we will both be treated exactly the same way.
And before the amendments you are putting down, there would have been a difference? Is that their purpose?
No, there would not have been a difference. It is because we did not have sight of the wording of the electoral Bill until it was published. The word used in that Bill for what we call election expenses was "donation", to cover political donations.
Waterford Glass would not be worth much in an election.
Will the Minister clarify what "a gift the value of which exceeds £500 given to an office holder (or to a) spouse ... or a child of an office holder" means?
It means that if, for example, a Minister on a foreign visit is given a gift of a value of over £500, that gift becomes the property of the State. We are also clarifying in this section that if the Minister's spouse or child is given an expensive gift, by virtue of being the spouse or child of the office holder as distinct from a present received from a family member, that gift becomes the property of the State. This is to clarify the situation. We will not have heads of foreign Governments bypassing this kind of rule by giving the gift to the partner rather than to the office holder. That is the reason for this section.
In other words, what you are saying is that if a son or a daughter is on the foreign visit, they then come under the rule. Is that constitutional? I do not think it is.
We have received the Attorney General's advice on this section.
I do not wish to interrupt the Minister but several Attorneys General have given advice over the 26 years that I have been a member of the Oireachtas, including to me when I was in office, which did not stand up in the courts. That part of the Bill will not stand up in a court. What terms would apply to a child over 18 years of age who was on a foreign visit in an accompanying capacity? I know I am getting into a technical area but so be it. I am not happy that this section is included. I believe it should be deleted from the Bill. If one goes to take a gift from a son or daughter, how does one clarify that it was received in an "accompanying capacity"?
First of all, I am fully satisfied that the section is constitutional. Secondly, the kind of cases where a gift is given to a son or daughter of an office holder are so rare as to be almost non-existent. I recall that Mr. Mark Thatcher may have been the person in line for that kind of treatment. On the rare occasion where it might occur, we wish to copperfasten that it will not be open to any potential donor to evade the rules that we have laid down by giving, through the back door, to a spouse or to a child in their capacity as the relative of an office holder and not in any other capacity. If the child of an office holder gets a gift entirely on their own merits, for example, if they were head of a company and doing business with a government which gave them a present, that is fine and in order. Whether they have been given gifts, which are over the limit, in their capacities as relatives of office holders or otherwise will be determined by the Secretary to the Government. We can all have a great deal of confidence in the Secretary to the Government that this provision will be exercised in a common sense way in the rare cases where this would arise.
How does one distinguish whether a gift is being given to somebody in their capacity as an office holder? If the Minister were brought out to Rathfarnham or Ballinteer and were to receive a presentation as Minister, that would be fine. If the Minister were given a gift in public solely for being a good citizen of the area and for bringing honour to the area, without specifying her holding of office, which might be only one of her many achievements, how would that be interpreted?
The decision on whether a gift was received by virtue of being an office holder would be made by the Secretary to the Government. He is an official of the highest common sense. I have a great deal of faith that, regardless of who is the Secretary to the Government, this provision will be interpreted with common sense.
It simply does not happen that people are given expensive gifts by local resident associations or local communities. In practice, the most likely situation that a gift breaching the limit would be given would be where a gift is made by a foreign Government.
One could very easily contrive the situation.
If there is any indication of contrivance, I am sure the Secretary to the Government will exercise his or her functions under the Bill.
I should remember this from my time as a Minister but I do not and my memory will need to be refreshed on this particular Bill. If the office holder disagrees with the decision made by the Secretary to the Government, what is the position then?
Under the Bill, the person entitled to make the decision is the Secretary to the Government as he or she has the function, first of all, of valuing gifts bordering on the limit, not every bunch of flowers or every gift of a pen received at a function. The second function of the Secretary to the Government will be to be consulted by the receiving office holder, in line with normal Government procedure and instructions which say that office holders will not accept valuable gifts. The Secretary to the Government shall act in accordance with general directions of the Government. The Government will draw up general guidelines, which will then be implemented by the Secretary to the Government, so each and every member will have a role in deciding the direction of these guidelines. There will simply be a set of procedures. Deputy McCreevy will know, from his own time in Government, that the number of cases where this arises is extremely low. Most gifts given to office holders are inexpensive. Generally in my own case, if I am given a gift, it is a bunch of flowers and I am happy to accept such a gift. It is a nice token to mark an occasion. On the very rare occasion where there is an expensive gift, office holders are not anxious to accumulate items of value that are a cause of trouble or of public concern. In the case where it appears that the gifts are either borderline value or above the limit, the office holder will consult the Secretary to the Government who will make a decision in accordance with the general guidelines laid down by the Government.
Is the £500 limit to be linked with inflation?
It is, yes.
That is the point I was going to raise. The explanatory memorandum states that this section deals with services offered or supplied free of charge or at a price less than the commercial price. Is it intended that the Secretary to the Government will make a decision on those matters also? If a service has been availed of and used up, what is the procedure if the Secretary to the Government decides that it was of a value greater than £500? What does the office holder, or the spouse or child of the office holder, do?
We did not spell out in the Bill exactly what will happen with services. The provisions of the Bill are in cumbersome language where they deal with gifts, physical things one can hold. In the case of services, we have provided for general procedures to be drawn up by the Government, which can then be implemented by the Secretary to the Government. For example, I could envisage a Government issuing guidelines stating that one could not accept free hotel accommodation to a value of over £500, unless it was in connection with attending and speaking at a conference. That kind of guideline will be available for the guidance of the Government.
Is it intended that the Government will draw up guidelines relating to all these matters?
The Government will draw up the guidelines and the commission will be consulted. It is basically to apply the principles of the Bill to those more complicated areas of services provided at less than full cost and in a series of simple workable rules.
Is it intended that there will be a commencement date for office holders? It seems to me — and it did when I was an office holder — that we could not go around with little note-books in our pockets to write down every little thing we received. A civil servant advised me of that particular aspect, as it is usual for a civil servant to do. Will there be a commencement date for office holders to keep all these records or what is the position? I accept there are many grey areas and I am not against the principle of the Bill but I have difficulty with some of the mechanics of it. Is there to be a commencement date or what will be the rules?
The application of the Bill is from the date on which the Bill is enacted; that provides an effective commencement date. Generally speaking, throughout the Bill, we provide that people make or register statements from the day the Bill is enacted. There is no question of going back over previous records.
There is no need for people to keep records of every bunch of flowers, every pen or every small gift they receive. The gifts worth over £400, and heading toward £500, will stand out and they will be few and far between. Administratively, it will not cause any difficulty. We also envisage that the guidelines drawn up by the Government will be published, so everybody will be able to see them.
I know that has to do with office holders but as for Oireachtas Members, which would be of more interest to everyone here, is there to be some simple rule book? It was suggested before and I think the Minister agreed to it. Is that correct?
The provision for Members is that the commencement date is when the Members adopt Part 2 of the Bill by resolution because, under the Constitution, Members regulate their own affairs. A select committee of the House with the guidance of the Clerk will draw up guidelines for Members.
There must be simple guidelines for Members. Otherwise some people will take their duties so literally that everybody will write down every time they had a free meal in the House.
That is why we set the limits. Nothing under £500 has to be declared.
Will there be a date on which this will start?
Yes. My staff are expert at turning the language of the Bill back into plain English again.
I also agree with the principle of the Bill but the more I listen to the Minister the more complications I can see in relation to the example given by the Minister of the spouse or child, son or daughter, getting a gift because they are members of a company or whatever. The Minister should look at the section again. I fully agree that guidelines have to be drawn up for office holders. We will all welcome them because they will be in all our interests. It is going too far and is unnecessary to include children. I know you gave the example and suggested that it may happen occasionally, but we do not legislate for odd occasions. Children should be taken out of that section.
If there was a limit on what the Deputy could give to his spouse?
It is not the limit but the whole perception of the section. While the Minister and the Government mean well, this will not be workable in the way we want it.
We have exhausted the debate on this.
I know the whole thorny question of spouses and off-spring of office holders and Members was discussed by the committee and in another forum. I accept what Deputies Wallace and Connolly have said. It is hard to draw the line there. It must be remembered that if people want to make an ass of legislation, no legislation in the world can legislate for goodness. I have my personal belief. I am sure the Minister of State will agree with me that in other areas you cannot legislate for goodness. It is a problem. From a purely ethical or politically correct viewpoint, in this era of political correctness where everyone stands alone and where one does not refer to one's wife anymore but to one's partner and everyone is equal, spouses of office holders are regarded in that fashion and have to be accounted for too. I understand where the Minister is coming from but——
And the children.
——it is against all principles of equality that I am sure the Minister of State and I have stood for, longer than we care to remember. I know wives of current and former office holders who would be against that principle being enshrined in any section of a Bill.
Is the amendment agreed to?
It is being agreed with a certain amount of reservation as far as we are concerned and we want it noted accordingly.
Amendment agreed to.
I move amendment No. 41:
In page 18, lines 45 and 46, to delete subsection (3).
Amendment agreed to.
I move amendment No. 42:
In page 19, subsection (4) (b), to delete line 8 and substitute the following:
"virtue of his or her office,
if there is a doubt in relation to the value aforesaid or, as the case may be, the question aforesaid.".
This is a technical amendment. It clarifies the language in the section.
Amendment agreed to.
I move amendment No. 43:
In page 19, subsection (5) (a), line 17, after "property" to insert "or service, as the case may be".
Again, this is a minor drafting amendment reflecting what is on the previous line.
Amendment agreed to.
I move amendment No. 44:
In page 19, subsection (5) (b), between lines 24 and 25, to insert the following:
"(1) as a donation (within the meaning of the Electoral Act, 1995),”.
Amendment agreed to.
I move amendment No. 45:
In page 19, subsection (5) (b), to delete lines 32 and 33.
Amendment agreed to.
Section 15, as amended, agreed to.