Phil Hogan (Carlow-Kilkenny, Fine Gael) | Oireachtas source

The Electoral (Amendment) (No. 2) Bill 2014 is a short but important Bill. It provides for the repeal of the bankruptcy disqualifications for election to and membership of the Dáil and of the European Parliament. By virtue of the provisions in Article 18.2 of the Constitution the bankruptcy disqualification for membership of the Seanad will also be removed. The bankruptcy disqualification has been in place in Ireland since 1923 and it was there before that under the Westminster Administration. This disqualification was removed for local elections in 1974. My Department has made inquiries of other EU member states and confirmed that it is not a disqualification for elections to the national or European Parliament in at least 18 member states. Anomalies exist under the current legislation whereby an Irish citizen adjudicated bankrupt in another jurisdiction is eligible for election to the Dáil, or to the European Parliament to represent Ireland, but an Irish citizen adjudicated bankrupt in Ireland is not eligible for election to either.
Similarly, where a Deputy or an MEP is adjudicated bankrupt in Ireland they cease to be a Member but if a Member was adjudicated bankrupt in another jurisdiction a vacancy in the Dáil or the European Parliament would not arise. The same anomalies apply to membership of the Seanad. It is difficult in the 21st century to identify a valid reason for retaining this disqualification. When the provision was originally introduced, well over 100 years ago, there would seem to have been valid reasons. That is not the case now having regard to recent insolvency legislation in Ireland and having regard to the altered view of bankruptcy as a protection or remedy rather than a punishment.
The commitment in the programme for Government was to reform our bankruptcy legislation to bring us into line with best international standards. This reform has been delivered in the Personal Insolvency Act 2012 which amended the Bankruptcy Act 1988 to provide for a more enlightened, less punitive and costly approach to bankuptcy. Those amendments continued the reform of bankruptcy law which was started in the Civil Law (Miscellaneous Provisions) Act 2011. We have now taken a 21st century look at the relevant parts of our electoral law and decided that it needs to be changed too.
In the past the disqualification from election to or holding elected public office by dint of being an undischarged bankrupt partly reflected a concern that a person in such circumstances could be more susceptible to inappropriate influence. This might have had some validity when the provision was originally conceived in a previous era, in another century. However, we need to consider the disqualification provision in the present day taking into account the legislative framework that exists to guard against corruption, to uphold ethics in public office and to restrict the potential for inappropriate influence of private and corporate political funding.
Between 1889 and 2010 seven separate Prevention of Corruption Acts were brought into force, along with a range of other criminal justice legislation that addresses corruption. Further significant reforms are planned. When enacted, the Criminal Justice (Corruption) Bill being developed by my colleague the Minister for Justice and Equality, will not simply be a consolidation of the existing legislation, it will clarify and strengthen the main corruption provisions and offences. Head 18 of the general scheme makes provision for the courts to remove from office Irish public officials who are found guilty of corruption. That includes Members of the Oireachtas and of the European Parliament. The Bill is currently being drafted and it is hoped that it will be ready for publication in the coming months. We have an ethics framework covering public office holders. This is set out in the Ethics Act 1995 and the Standards in Public Office Act 2001. The requirements of this legislation are overseen by the Standards in Public Office Commission.
There is a comprehensive legislative code covering political donations which has been substantially strengthened by this Government through the Electoral (Amendment) (Political Funding) Act in 2012. Corporate donations are now restricted. The maximum political donation that an individual can receive was reduced to €1,000 and every donation above €600 must be reported, with details of the donor published. Cash donations above €200 are now banned, as are anonymous donations above €100. Experience in the past has, unfortunately, shown that some individuals are willing and capable of circumventing the rules, and that bankruptcy is no predictor for such behaviour. No system will guard against every possibility and there is a constant need for us all to be vigilant in reforming our laws and regulations to appropriate and proportionate effect. However, in this day and age an absolute ban on bankrupt persons standing for election can be regarded as a disproportionate measure with questionable justification. There are better and more targeted ways of dealing with concerns about the inappropriate influence of office holders. These should apply whether the person happens to be bankrupt or not. This approach is reflected in the range of necessary laws and regulations dealing with political funding, ethics in public office and anti-corruption measures. In these circumstances, it is right and reasonable that the bankruptcy disqualification be repealed.
I will take the opportunity now to outline the main provisions in the Bill. Section 1 - amendment of the Electoral Act 1992 - provides for the removal of the disqualification of bankruptcy for election to the Dáil by repealing paragraph (k) of section 41 of the Act and for removal of the disqualification of bankruptcy for membership of the Dáil by repealing section 42(3) of the Act. Section 2 - amendment of the European Parliament Elections Act 1997 - provides for the repeal of the bankruptcy disqualification for election to the European Parliament by removing the reference, in section 11 (2)(a), to paragraph (k) of section 41 of the Electoral Act 1992.
No amendment is required to remove the bankruptcy disqualification for membership of the European Parliament because section 11(5)(a) of the European Parliament Elections Act 1997 simply provides that a person shall cease to be a member of the European Parliament if they become subject to any of the disqualifications referred to in subsection (2)(a) of section 11.
Section 3 contains standard provisions dealing with short title, construction and collective citations.

The bankruptcy disqualification also applies to Members of Seanad Éireann. However, the Bill does not provide for an amendment to Seanad electoral law. Article 18.2 of the Constitution states, "A person to be eligible for membership of Seanad Éireann must be eligible to become a Member of Dáil Éireann.” Section 16(2) of the Seanad Electoral (University Members) Act 1937 provides that “No person who is for the time being disqualified from or incapable of being elected as a Member of Dáil Éireann shall be a candidate at an election in a university constituency.” Having regard to these cross-references to the Dáil provisions, the bankruptcy disqualification will, therefore, be removed for the Seanad as a consequence of the amendments in the Bill.

As I noted earlier the bankruptcy disqualification was removed for local elections in 1974, 40 years ago. We are only now removing it for general elections and European elections and, as a consequence, for membership of the Seanad. This could and probably should have been done long before this. The Government is now taking action to repeal a provision that is disproportionate and no longer necessary in this day and age.

I commend the Bill to the House.