Amendments Nos. 131, 139, 143, 144, 158 and 164 are related to amendment No. 130 and amendments Nos. 145 and 146 form alternative proposals to amendments Nos. 143 and 144. All may be taken together.
SECTION 27.
Chairman
I move amendment No. 130:
In page 23, subsection (1)(a), line 1, after "party" to insert "pursuant to section 29 (1) (b) or 30 (1) (b)".
Amendments Nos. 143 and 144 are the main ones and the others are consequential. These provide for the insertion of two sections in substitution for section 29 of the Bill. The amendments propose to deal with limits to election expenditure on Dáil and European elections in two separate sections, instead of in one section as provided for in the Bill.
These sections have been drafted to take into account legal advice on the implications of the judgments in the McKenna case regarding the emphasis on fairness and equality in the electoral process and democratic procedures. All candidates within a constituency, whether members or a party or not, will be entitled to incur expenses, subject to the same ceiling. A separate spending limit for political parties is not directly provided for. Any expenditure which a political party wishes to incur at national level will be on the basis of an agreed portion of its candidates' allocation not exceeding 50 per cent and will be deemed to be expenditure on behalf of its individual candidates.
The proposed new section 29 specifies limits for expenditure at a Dáil election. Section 30, proposed for insertion in the Bill, does not specify limits for European elections, but makes provision for this to be done by order of the Minister, subject to approval in draft form by resolution of each House of the Oireachtas.
The principal changes to section 29 are, there is an increase in the amount of election expenses each candidate may incur at a Dáil election and there is no separate limit specified for party spending at national level. Where a candidate is a candidate of a political party, a portion of the candidate's expenses, not exceeding 50 per cent, with the agreement of the candidates may be incurred by the party at national level. Such expenditure will be deemed to have been incurred on behalf of the candidates. Spending limits for all candidates will be the same but limits vary depending on the size of the constituencies. Limits for spending at a Dáil by-election will be the same as those for a general election. Amendments Nos. 130, 131, 139, 158 and 164 are consequential on amendments Nos. 143 and 144.
Chairman
The Minister outlined the aggregate of election expenses which may be incurred by the party on behalf of a candidate, including £14,000 for a three seat constituency, £17,000 for a four seat constituency and £20,000 for a five seat constituency. If there are two candidates on a party ticket, are those limits doubled?
It is per candidate.
Chairman
If a party has three candidates in a five seater constituency, £60,000 can be spent between local and national agents.
It is centred on the candidate. He or she must agree what portion the political party will spend on his campaign.
Chairman
The national part cannot be in excess of 50 per cent.
That is correct.
I thought the Minister might indicate that she had reconsidered the limits and agreed to accept my amendments in relation to the amounts candidates could spend. This matter relates to the McKenna judgment and treating all candidates equally. It sounds wonderful but all candidates are not treated equally. The proposals will put political parties at a major disadvantage. An individual candidate has just his or her own expenses but it is different for a party putting forward candidates.
Despite what the cynics might say, political parties have served this country well in the past. I favour equality but it means making allowance for the fact that parties at national level are organised and have much greater administration expenses than individuals standing for election. Although the proposed levels can be halved for each candidate, I have no difficulty with them. My amendments suggest minor changes to the amounts in the case of three, four and five seater constituencies. However, a difficulty is being created for parties at national level. To illustrate how ridiculous it could become, there could be a case where a party at national level decided to field an extra candidate in each constituency, who had no hope of winning a seat, just to secure the extra £15,000 or £20,000.
Is there any movement on the figures? The Minister said they could be changed. My amendments suggest that the aggregate amount in a three seater constituency should be £20,000 per candidate, £22,500 per candidate in four seater constituencies and £25,000 per candidate in five seater constituencies. My figures for European elections are £60,000, £80,000 and £100,000 respectively. Is the Minister prepared to consider those sums?
My amendment specifically relates to a point I want the Minister to take on board. It states that the candidature expenses shall not exceed 50 per cent of £20,000, £22,500 or £25,000 except in cases where there is a written agreement between the political party and the authorised candidate to exceed the 50 per cent limit. It further states that the authorisation shall specify the amount by which a candidate or candidates may exceed the 50 per cent limit.
The legislation allows for 50 per cent to be spent nationally and 50 per cent locally. However, major difficulties will arise during an election campaign. There may be agreement prior to an election that the money will be split 50:50 and the candidate can only spend half the amount. However, people, particularly candidates, go a little mad during election campaigns. Paranoia sets in after eight or nine days and despite general agreement about the funds, a candidate may perceive that he is in serious difficulty or that his party's director of elections is not treating him fairly. A candidate may perceive that a candidate from another party is gaining huge advantage and, therefore, to hell with the agreement, he must spend more money. He can stay within his limit of £14,000 but he ends up spending over the limit agreed with his party nationally. That will not affect him personally but it will affect the party at national level.
In the context of multi-seat constituencies where there is a minimum of two candidates from the larger parties, one candidate will always decide that he or she is at a disadvantage. If a party decides that it will spend £1 million based on the 50 per cent agreement and one candidate in each constituency goes berserk and decides to spend his or her entire limit, it will seriously affect the level of expenditure at national level. If that happens during an election, the party cannot adjust its campaign nationally at that stage. The candidate will not be in breach of any law because he or she is entitled to spend up to the limit. However, there will be a major problem at the end of the campaign because the national election agent will be hauled over the coals, brought to court and fined.
The national agent cannot be held responsible for the actions of somebody locally. One might say that should be worked out, and it will, but a gentleman's agreement has no standing in law. If the candidates choose to spend the money and cause the party's national expenditure to exceed the limit, the national agent will be taken to court because of that. Someone will go to court because of the actions of others. It will not work unless there is a stipulation in the Bill relating to the division of the amounts. The McKenna judgment was referred to but Pat Farrell will be involved in a case that will throw this out.
Because of the McKenna judgment, there is a different emphasis and approach to this question. It must be candidate-centred. The Deputy referred to political parties, which are acknowledged as being vital to the democratic system. Increased funding has been provided for items other than election expenses, with the leader's payments and the new £1 million fund, though Independents might have an opposite view to the Deputy.
The ceilings are being considered, although I do not have the exact amounts. The limits are not written in stone but they must be reasonable. On the matter of a candidate going out of control, that candidate will first have to comply with the overall ceiling. If a candidate disregards an agreement made between him and the national party, he is held responsible.
Is that set in law?
The agreement is mentioned in amendment No. 143 relating to section 29(1)(b): "where a political party authenticates the candidature of a candidate at a Dáil election, the party may incur such proportion not exceeding 50 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.” If there is an agreement, the national agent can then say that such an agreement exists, thus protecting the agent.
I understand that is provided for but my amendment seeks to make that specific in law so we would know who would have to go to court. For example, Fianna Fáil has no agreements with candidates in relation to their expenditure and, in all probability, neither has any other party. There is nothing in the original Bill or the amendments to the effect that a candidate who exceeds the party spending limits will be punished. We can talk about gentleman's agreements but we know the real world of internal party politics.
There is no question of the national agent being held responsible in the scenario outlined by the Deputy. A party funds a campaign for the benefit of the candidate and there is an onus on it to ensure it has a written agreement between it and the candidate on the amount to be spent. That protects the national agent if there is a problem and the candidate is responsible for his own actions.
Assuming that scenario prevails, where in the Bill are the sanctions to be imposed on a candidate for failing to keep his agreement? What happens if a candidate refuses to reach an agreement with his party?
In that case the party does not provide the funding.
The political party is not providing the funding.
It is providing 50 per cent according to an agreement with the candidate.
That is attributable to national expenditure and is not specifically locally related.
The difficulty is with the expenditure. There will be no grants from Fianna Fáil headquarters to the local candidates——
No, but headquarters provides material.
Are we talking about contract law and a legally binding contract? If not, how are we to deal with the candidate who causes the party to exceed its limits nationally and to protect the national agent?
If we return to amendment No. 143, we see the provision that the party may incur such expenses not exceeding 50 per cent of the expenses the candidate is entitled to incur as agreed in writing between the candidate and the party.
Chairman
Subsection 2 of amendment No. 143 states: "the aggregate of election expenses which may be incurred. . . and the sum of the actual expenses incurred by the said candidates." It is not the agreed but the actual expenses. Deputy Dempsey appears to be right in that if a candidate broke the agreement, the national party could be inadvertently breaking the law.
It is subject to subsection (1)(b)(i). The party can also misbehave and overextend itself so there must be some control on that.
Chairman
I suggest that the actual expenses should be the agreed expenses.
Agreed between whom?
Chairman
Agreed between the party and the candidate as provided for in subsection (1)(b)(i) or agreed in writing as the Minister now suggests.
It may be agreed that an amount less than the maximum would be spent. There is nothing wrong with that because it is still less than the maximum and the proportionality is still correct. That is the actual expenditure. The likelihood is that people may work out specific proposals which are agreed but there may be changes which are still perfectly legal.
Chairman
Some candidates may feel others are spending too much and breaking the law but they will get away with it to the others' disadvantage. They would believe the only thing to do is to act similarly and break all agreements. More pledges and agreements are broken at election time in my experience.
Not just with the electorate.
Chairman
If in this case "actual expenses of candidates" rather than "actual expenses up to the maximum" is the term used, the national party could be in trouble because of the misbehaviour of a candidate or candidates.
From Fine Gael's point of view, and it seems to be the same for Fianna Fáil and the Labour Party, the national party and its expenditure is separate from the constituency party and its expenditure. Candidates will have personal expenses, such as buying sandwiches for canvassers who are with them all day. When the term "party expenditure" is used, is it national party expenditure or does it also cover party expenditure within constituencies which is funded locally? A sufficient distinction has not been made. We are not recognising the reality of three tiers: national party expenditure, constituency party expenditure and candidate expenditure.
There is a fourth — local branch expenditure.
I have a major problem with this section. The old fashioned system where one's party paid for election expenses has gone by the board in many cases.
Chairman
I do not remember it.
Old election manuals make it clear that was the practice and candidates were not allowed to spend money. A director of finance was responsible for it. Under this scheme, that is impossible because it is assumed a candidate will spend 50 per cent of the total provided. Let us assume I had an agreement with my constituency party that a director of finance would cover election expenses so that I would be like Prince Charles and would not have to put my hand in my pocket. Under this subsection, a political party which authenticated the candidature of a candidate at a Dáil election may incur such a proportion not exceeding 50 per cent of the election expenses. However, under the Bill, "party" includes local as well as national. Therefore, to implement our arrangement, my local party could only spend half the maximum. People who want to work in conjunction with their party are, therefore, disadvantaged.
It is recognised we are not just dealing with political parties. The McKenna judgment is clear that there must be equality for candidates who are not members of political parties. We must get away from the idea we are dealing solely with political parties. We are now dealing with candidates who appoint agents to deal with what the Deputy is talking about.
Surely it is my democratic right as a candidate to request my party to direct and control my expenditure? Under this legislation, I can only spend half the maximum by taking that option. If I decide to make that choice, in cooperation with my constituency party which does not want me to be troubled with money matters during an election, I am restricted to half the limit specified in this subsection. The word "party" in the Bill includes local branches and the constituency party. The expenditure it incurs for me will be deemed to be part of the party finances which may not exceed 50 per cent of the total. That is wrong and I do not know how the Minister can stand over it. It must be unconstitutional because people's conduct at elections is being restricted.
Chairman
Some distinction must be made between the national party and the constituency party.
And the candidates.
The matter of the 50 per cent limit should be kept separate as it is the nub of the problem. We shall have to re-examine it. We are not saying local constituencies cannot pay for candidates' expenditure but there is a difficulty about the 50 per cent limit which will have to be re-examined.
There is another point which was dealt with in an earlier section but arises here. I assume in the case of a party with more than one candidate that candidates could assign the £5,000 to their party and it could claim for it on their behalf.
No, the candidate claims for it. It is the candidate who appoints an agent to conduct this business on their behalf.
If an undertaking were obtained from the candidate which was notified to the commission——
This has been dealt with. It is yesterday's battle and there are enough today as it is.
It is related to the subject.
I do not want to open that can of worms again.
Chairman
I understand the Minister's determination to protect the candidate which is right. A candidate could fall victim to too much arbitrary central control. It is reasonable to suggest a 50-50 split between national party expenditure and overall constituency expenditure. That, in my experience, is a reasonable balance. A distinction must be made. It must be realised that 50 per cent may be spent by the constituency party and the rest by the national party.
It is the national party which is being referred to. It means a party registered in the register of political parties. I take it Deputies are saying they do not oppose any kind of proportionality as regards the national party but that there is a lack of clarity.
There is a huge problem and I do not know how we can overcome it. We should not have Report Stage without examining what we are going to do. It would be worthwhile if those in the various party headquarters could sit down and try to come up with some suggestions.
Chairman
We could allow for arrangements to be made for the aggregation of expenses by way of regulation or order. There will be self evident difficulties with the Bill as it stands. It is unrealistic to expect that its provisions will be effective for the next election if it is held in the next eight weeks. There is provision for commencing some sections but many others will not be in place in time for a pre-summer election even if the Bill is enacted beforehand.
I am keen to progress this Bill.
Chairman
It would be a major feat if the Bill was enacted. However, it seems unrealistic to implement the sections so quickly.
The Minister dealt with this and said that he would come back with details of the commencement.
Chairman
There is a section which allows for the commencement of different sections at different times.
There can be an input when we have something to work on in relation to the guidelines and regulations.
We will need to do some serious talking if this part of the Bill is to be in place for the next general election. I do not believe that is feasible. We have highlighted some of the problems and I have uncovered one or two more. At the same time, we will need to know quickly if it is going to be commenced. We have more than 100 candidates to whom we will have to explain the Bill.
The Minister will be anxious to have the section dealing with disclosure in place. We will not obstruct that. However, the sections relating to expenditure limits are not so urgent. Most of the parties have their posters in place. The Minister's early amendment means that none of that comes under these provisions. It is almost pointless to talk about the limits now as most of the election expenditure has been incurred. Will the Minister talk to her colleagues on this matter?
All our posters and literature are ready. This section is not so urgent but it will cause huge difficulties for everyone unless we get it right. I can even see a difficulty with my own amendment in relation to the 50 per cent. This is not workable and we have not much time to make it so.
I have a more fundamental objection to this provision. I am entitled to talk about the McKenna case as it was referred to by the Minister. The McKenna judgment stated that a Government cannot use its resources to guide the people towards a conclusion in a referendum. Yet we are proposing legislation for a Dáil election drawn up on the analogy of that judgment. However, a Government enjoys a huge advantage in a Dáil election. This Government is well known for the large retinue of special advisers that has been recruited into many Departments to assist Ministers. Their contracts are for the duration of the Government, not the Dáil. These advisers are available to Ministers during the election campaign as full-time, paid election workers. They are not available to the Opposition. When one sets limits on expenditure one is disadvantaging the Opposition in favour of the Government. This is a fair legal and constitutional point.
Chairman
Is it a political point?
That is the point of the McKenna case.
That is not the first time that this was raised.
It is a valid point.
That might have been taken into account before the process started. It is not relevant to this Bill.
It is relevant in the sense that the Minister introduced these sections as amendments on the basis of the McKenna case. On the basis of that case these limits are unconstitutional as they disadvantage the Opposition. That is wrong. I respectfully suggest that the President should exercise her powers in relation to this Bill. I cannot understand an arrangement in which an Opposition is going to be limited in the expenditure it can incur yet the Government has at its disposal officers paid for out of the public purse.
Someone has to govern during an election campaign. Is the Deputy suggesting that there be no Government during the election?
I am not talking about the business of Government. I am talking about ministerial advisers who work on constituency business and are paid for out of the public purse. Their contracts stipulate that they continue to work for the duration of the Government.
Chairman
The argument also extends to those working in Opposition leaders' offices who are paid for out of the public purse. It also applies to Deputies' secretaries.
Logically it would. That is the vista opened up by the McKenna case.
There has to be a common sense approach to this. Deputies need secretaries to assist them with their work. Governments have to govern during election campaigns.
Someone should have told that to the Supreme Court.
As far as is practicable we have to work to principles. That is what we are doing in this Bill. I appreciate that there are difficulties. There is no such thing as the perfect Bill but we have to deal with the issues. This Bill was instituted under a previous Government. Presumably the ideas still hold with those parties even though they are now in Opposition.
I accept that point. However, take a constituency where there are two Ministers, two Opposition Deputies and a number of other candidates. The Ministers are at an enormous advantage because of the number of persons at their disposal who are paid for out of the public purse and work on election business. I refer to special advisers and not civil servants. This puts them at an advantage, but the Minister said this measure was aimed at putting all candidates on an equal footing. They are not on an equal footing and limiting the expenditure of each candidate leads to further inequality because it prevents them competing with Ministers and incurring expenditure matching that of Ministers. If people want to replace a Government they should be entitled to spend their money in doing so. That entitlement is being limited under this Bill. The limits which purport to implement the spirit of the McKenna judgment do not do so.
The amendments are not and were never agreed by any previous Government of which I was a member. They are totally different and emanate from the McKenna judgment. They were never agreed between my party and the Labour Party. The principle is agreed but the original Bill is closer to meeting our requirements by providing a limit of £25,000 on party expenditure in each constituency with each candidate having lower limits. This was a better approach but perhaps the McKenna judgment makes it no longer possible. It would be no harm to take another look at the original Bill which set out an allowance for each party on a constituency basis. In order to ensure equality there is a case to be made for providing that a political party or individual candidate be allowed spend £25,000 per constituency. It could be claimed that an independent candidate was at an advantage. The original Bill stated that a national party could spend £25,000 per constituency and the aggregate of election expenses which may be incurred on behalf of a candidate in connection with his or her candidature at an election should not exceed, in the case of a constituency returning three members, £10,000. It may be necessary to say that a party can spend £25,000 in the constituency and a party candidate be limited to £10,000 but that an independent candidate be allowed spend £35,000 in the constituency. This would ensure everybody was treated equally.
That is not treating everybody equally because a candidate standing for a political party can say they want to spend as much as the Independent candidate. The problem is equality and the proposals in the original Bill are no longer feasible. Our legal advice is that candidates must be treated on the basis of equality.
Chairman
Where an agreement is reached, the national agent could come to different agreements with different candidates in different constituencies.
Yes.
Chairman
So in the Minister's constituency, for example, it could be decided that she spend 90 per cent and the party spend 10 per cent of the money while in another constituency the division could be 50:50. Therefore, there could be a focus on marginal constituencies and candidates.
Perhaps a distinction could be drawn between national and local expenditure. We are dealing with two different types of expenditure. Local expenditure relates to constituency expenditure for which there is a definite limit connected with the conduct of the election campaign, a limit shared by all candidates. National expenditure would be a matter for the national agents. Independents could incur national expenditure in connection with their national campaign.
I appreciate the assistance of Deputies, but how can an Independent candidate have national expenditure? There cannot be two types of candidate.
Legislative provision should be made allowing them to spend money on a national basis if they want to. They are entitled to do that and to have expenditure limited on that basis in the same way as it is limited for party candidates.
This is reasonable when there is a national element to the debate as in the case of television deflectors or water charges.
They should not be excluded from the rights of party candidates. It would mean that every candidate had a national and local expenditure. I appreciate the difficulty the Minister has but it would ensure everybody was treated equally. National expenditure is necessary for political parties. Equality is fine in theory but most Independents are single issue candidates, specific to their own locality. The Minister is interpreting the McKenna judgment as saying that everybody has to be dragged down to their level rather than providing them with national expenditure if they wish to use it. If they cannot spend it, that is fine.
I do not think the Supreme Court would take the view that national parties should have no national election expenses simply because an Independent candidate who wishes to speak about a dump, deflector system or water charges in a particular area cannot spend that type of money.
Nobody is proposing that parties should not spend money at national level. There has to be equality between candidates and some candidates are members of political parties while others are not. We have to find the via media. A number of candidates stand on purely local issues with no interest in national agendas. Their constituency is exactly the same as candidates from the biggest party in the State. The basis on which we have to work is the constituency as it is common to all candidates.
Chairman
Does the McKenna judgment impose limits on expenditure?
No, it does not. The principle is considered desirable by all parties.
Chairman
While I initially agreed with the notion of limits I now see all sorts of complexities with it and we might be better having none. We have not had limits up to now and their absence has not done too much harm.
There were limits up to 1963.
Chairman
That was before my time.
We are returning to accept a practice.
But we had no McKenna judgment at that time.
Chairman
Life was much simpler then because the party funded elections.
We cannot get away from the idea of the candidate being central in taking responsibility. The limit of 50 per cent will be re-examined and we are already examining the funding ceilings. However, we must accept that candidates must be treated on that basis.
Chairman
Is it the case that, if a candidate refuses to come to an agreement with his party, he can spend all the money?
Yes.
Chairman
In a constituency where there was more than one candidate and the party came to an agreement with one of the candidates that, unknown to the others, he could spend more than the other, it would put other candidates at a disadvantage.
It would never happen in Fine Gael or Fianna Fáil.
Chairman
It is more likely to happen, we are not as pure as the Labour Party.
Exactly.
We must differentiate between the legal obligations under this Bill and how political parties manage their affairs. We are talking about people whose egos are sensitive during elections and that is not, therefore, the time to deal with these issues. The time for political parties to deal with them is in the run-up to an election. There will be an onus on political parties to manage these matters.
Deputy Lenihan's point is fundamental. It is fine for us to sit here and argue the theory of how this will operate. My point is that there is nothing in this Bill which deals with the situation where a candidate fails to honour an agreement reached with his or her party. Under the Bill a candidate is allowed to spend so much money on the election campaign and the money is theirs because of the McKenna judgment. A provision must be inserted into the Bill so that, where agreements are broken, even written ones, the limits mentioned in the Bill apply to the candidate. There is nothing in the Bill to that effect. A candidate can legitimately say that, while there was an agreement, he did not realise certain things were going to happen and told the general secretary of the party that he was going to spend the full amount. He would be within the law in spending up to the limit laid down in the Bill. The poor agent at national level, who thought he had an agreement, no longer has one and, therefore, is responsible. The provision is too loose and must be more specific. Deputy Lenihan made the point about local and national expenditure which is another problem.
One suggestion is that the matter be agreed in writing between the party and the candidate. That might solve the problem. It sounds sensible and reasonable and we will examine it. I suggest that, if we agree on these amendments, we will re-examine the issue of ensuring the national agent is not hung out to dry and that, since the candidate is responsible——
The agreement would be binding in law.
Yes, or at least the national agent would be protected. We are already examining the funding ceilings. We will also re-examine the 50 per cent level. The fourth point is the term "actual expenses". I suspect we could take out the word "actual" but we will examine that as well. If I undertake to consider those four points——
Chairman
That would be helpful but there is the additional point, which is probably the most difficult to deal with, of expenditure by the party nationally and in constituencies.
That is what I am dealing with when I speak about the 50 per cent limit.
Chairman
A distinction must be made between expenditure under the control of the national agent, under the control of the constituency agent and expenditure by the candidate. There is also the point about expenditure by branches or units. If these are not defined a coach and four could be driven through these amendments.
The role of the agent is to ensure there is a record of matters such as whether the local branch paid for something. The agent would have such information or a record. It does not always have to be money the candidate spends.
The candidate does not control the local branch. The Labour Party and Democratic Left normally run one candidate per constituency. There are huge complications when more than one candidate is run. An agent of a candidate would have no control over branch expenditure in a party which was running two candidates. I am anxious about the point of assigning one's expenditure to the party in a constituency so that, if the constituency party pays for one's local campaign, one is not disadvantaged under this legislation by operating under half the limit by which everyone else is bound. That is currently the position. The Bill presumes candidates will spend up to half the limit on their own account and the remainder goes to the party nationally and locally. If one's local party pays for one's campaign, one is operating under half the limit of other candidates and that is absurd.
We will re-examine the matter. Can we agree these amendments and return to these points later?
Chairman
We are approaching the time to adjourn.
I presume we will meet again so it might be an idea to leave these amendments or to agree them in principle and revisit them next week. I ask the Minister of State to discuss them in detail with the Minister so as to advance this area of the legislation, even if it means it will not be implemented during the next election.
Chairman
It is also possible we might come up with some thoughts on how to address the problem.
The Select Committee adjourned at 1.05 p.m.