Combined Section 15/16 Manual of the Standards Commission

3.1 Requirements of the Electoral Acts

The Electoral Acts provide a statutory system for the acceptance and disclosure of political donations and the opening of political donations accounts. The Electoral Acts also provide for the limitation, disclosure and reimbursement of expenses at Dáil, European and presidential elections and for the payment and expenditure of Exchequer funding to qualified political parties.

A. Disclosure of Donations

A donation is defined in the Electoral Acts as a contribution given for political purposes. A donation includes money, property or goods, or the free or below cost use of property, goods or services. A donation also includes the net value of a contribution to a fund-raising event (the Standards Commissions guidelines on the disclosure requirements in relation to the proceeds of fund-raising events are provided at Appendix 5 to this manual).

It should be noted that there are a number of matters prescribed in section 22(2)(b) of the Electoral Acts which are not regarded as donations. These include:

• free postage facilities provided, under statute, for candidates at elections,
• certain payments, services or facilities provided by an institution of the European Communities or other intergovernmental organisation to which the State is a party,
• the transmission on radio or television of a broadcast on behalf of a candidate at a Dáil or European election,
• and expenses incurred by a political party on behalf of a member of either House of the Oireachtas, a representative in the European Parliament or a candidate at a Dáil, Seanad or European election, other than a donation of money.

The Electoral Acts provide that donations must be disclosed in a form determined by the Standards Commission. The Standards Commission produces Donation Statement forms for the purposes of disclosing donations. All donations from the same person in a particular year must be aggregated for the purposes of observing the thresholds governing the acceptance and disclosure of donations.

The Electoral Acts also provide that a Donation Statement form must be accompanied by a Statutory Declaration in which the person declares that the Donation Statement is, to the best of his / her knowledge and belief, correct in every material respect and that he / she has taken all reasonable action in order to be satisfied as to its accuracy. The Statutory Declaration must be witnessed by a Notary Public, Commissioner for Oaths, Peace Commissioner or Practising Solicitor. (An example of a Donation Statement form used by the Standards Commission is provided at Appendix 6 to this manual).

Donation Statements as follows are furnished to the Standards Commission under the Electoral Acts:

• Members of the Houses of the Oireachtas and Members of the European Parliament (MEPs) must, by 31st January each year, furnish a Donation Statement disclosing all donations received by them during the preceding calendar year which have an aggregate value in excess of €634.87.
• Political parties must, by 31st March each year, furnish a Donation Statement disclosing all donations received by them during the preceding calendar year which have an aggregate value in excess of €5,078.95. Political parties are required to appoint an appropriate officer for the purposes of making this disclosure.
• Unsuccessful candidates at a Dáil, Seanad or European election and the election agents of all candidates at a presidential election must, within 56 days of polling day at the election, furnish a Donation Statement disclosing all donations received by them in relation to the election which have an aggregate value in excess of €634.87.

The practice and procedures of the Standards Commission in relation to the receipt of Donation Statements from political parties, Members, MEPs and unsuccessful candidates are set out in section 3.2A below.

• An individual who, in a calendar year, makes donations the aggregate value of which exceeds €5,078.95 to one or more members of the same political party or to a political party itself and one or more of its members, is required under section 24(1A) of the Electoral Acts to furnish a Donation Statement to the Standards Commission by 31st January of the following year. The Donation Statement must disclose details of all such donations made by him / her during the preceding year. The practice and procedures of the Standards Commission in relation to the receipt of Donation Statements from individual donors are set out in section 3.2D below.
• A company is required under section 26 of the Electoral Acts to include, in the annual report / return furnished by it to the Companies Office, details of all donations with an aggregate value of €5,078.95 or more made by the company during the year to which the report / return relates. A similar requirement applies to trades unions, building societies and other registered societies. The practice and procedures of the Standards Commission in relation to the disclosure of donations by companies, trades unions etc. are set out in section 3.2E below.

B.  Opening and maintenance of Political Donations Accounts

The Electoral Acts provide that where a monetary donation exceeding €126.97 is received in a particular calendar year, the recipient must open and maintain an account in a financial institution in the State (hereafter referred to as a Political Donations Account). The initial donation and any further monetary donations received, of whatever value, must be lodged to the account. Monies drawn from the account may only be used for political purposes.

Where a Political Donations Account has been opened certain statutory returns in relation to the account must be furnished to the Standards Commission. In each case a Certificate of Monetary Donations and a statement from the financial institution where the account has been opened, specifying the transactions that have taken place in relation to the account during a specific period must be furnished.

When completing a Certificate of Monetary Donations, the person certifies that all monetary donations received were lodged to the account and that all amounts debited from the account were used for political purposes. The Certificate of Monetary Donations is accompanied by a Statutory Declaration on which the person declares that the Certificate of Monetary Donations is, to the best of the person's knowledge and belief, correct in every material respect and that he / she has taken all reasonable action in order to be satisfied as to its accuracy. The Statutory Declaration must be witnessed by a Notary Public, Commissioner for Oaths, Peace Commissioner or Practising Solicitor. A sample Certificate of Monetary Donations and Statutory Declaration used by the Standards Commission is provided at Appendix 7 to this manual.

The requirements for each category of person who may be required to open a Political Donations Account are as follows:

• a Member or MEP must furnish a Certificate of Monetary Donations and statement from the financial institution with his / her annual Donation Statement. The Certificate of Monetary Donations and statement from the financial institution are completed in respect of the previous calendar year. If the account was opened during the year, the statement must specify the transactions which have taken place on the account from the date of opening the account to the end of the calendar year;
• an unsuccessful candidate at a Dáil, Seanad or European election must furnish a Certificate of Monetary Donations and statement from the financial institution with the Donation Statement he / she is required to furnish within 56 days of polling day at the election. The Certificate of Monetary Donations and statement from the financial institution are completed in respect of the period from the date of opening the account up until polling day at the election;
• the election agent of a candidate at a presidential election must furnish a Certificate of Monetary Donations and statement from the financial institution with the Donation Statement he / she is required to furnish within 56 days of polling day at the election. The Certificate of Monetary Donations and statement from the financial institution are completed in respect of the period from the date of opening the account up until polling day at the election. If the candidate was also required to open a Political Donations Account (i.e. in respect of donations received by him / her before the appointment of his / her election agent) a separate statement in respect of the candidate's account must be furnished by the election agent. The Certificate of Monetary Donations is completed by the election agent in respect of both the candidate's and the election agent's Political Donations Accounts;
• the "responsible person" of a political party or an accounting unit of a political party must furnish a Certificate of Monetary Donations and statement from the financial institution by 31st March each year. The Certificate of Monetary Donations and statement from the financial institution are completed in respect of the previous calendar year. If the account was opened during the year, the statement must specify the transactions which have taken place on the account from the date of opening the account to the end of the calendar year. (A branch or subsidiary organisation which receives a donation exceeding €126.97 in value is defined in the Electoral Acts as an "accounting unit". Details of the accounting unit and its responsible person are required to be notified to the Standards Commission by the party's "appropriate officer") ;
• the "responsible person" of a third party (see section 3.1E below for a definition of a "third party") must furnish a Certificate of Monetary Donations and statement from the financial institution by 31st March each year. The Certificate of Monetary Donations and statement from the financial institution are completed in respect of the previous calendar year. If the account was opened during the year, the statement must specify the transactions which have taken place on the account from the date of opening the account to the end of the calendar year.

It should be noted that the Electoral Acts provide that the Standards Commission shall retain the statements from financial institutions, Certificates of Monetary Donations and Statutory Declarations furnished to it, and shall not disclose the contents thereof unless ordered by a Court to do so, or except when such disclosure is required in connection with an investigation held by the Standards Commission.

The practice and procedures of the Standards Commission in relation to the receipt of Certificate of Monetary Donations forms and statements from financial institutions are set out in section 3.2C below.

C.  Prohibited donations

i) Anonymous donations

The Electoral Acts provide that a political party, a third party, a Member, an MEP, a candidate at a Dáil, Seanad or European election or a candidate or his / her election agent at a presidential election may not accept an anonymous donation exceeding €126.97 in value.

If such a donation is received, the Standards Commission must be notified within 14 days and the donation, or the value thereof, must be remitted to the Standards Commission.

The Standards Commission is required to lay a copy of each notification of an anonymous donation before the Houses of the Oireachtas and to dispose of the donation in the manner directed by the Minister for Finance.

ii) A donation from an individual making multiple donations who does not intend to comply with the provisions of section 24(1A) of the Electoral Acts

A member of a political party may not accept a donation from an individual if he / she knows, or has reason to believe, that the individual making the donation is required to furnish a Donation Statement under section 24(1A) of the Electoral Acts (as described in section 3.1A above) and does not intend to do so.

Where such a donation is received, the Standards Commission must be notified within 14 days and the name and address of the donor provided. The donation, or the value thereof, must also be remitted to the Standards Commission within that time.

The Standards Commission is required to lay a copy of any such notification before the Houses of the Oireachtas and to dispose of the donation a manner directed by the Minister for Finance.

iii) Donations in excess of the prescribed limit

A Member, an MEP, a candidate at a Dáil, Seanad or European election, or a candidate at a presidential election or his / her election agent may not accept a donation from the same person in a particular year which exceeds €2,539.48 in value.

A similar prohibition exists for political parties and third parties in the case of a donation exceeding €6,348.69 in value.

The maximum prescribed limit of €2,539,48 does not apply to a donation of a constituency office to a Member, MEP or candidate. (Where more than one constituency office is donated the Member, MEP or candidate must nominate whichever office the maximum prescribed limit shall not apply to.) The maximum prescribed limit of €6,348.69 does apply to a donation of a constituency office to a political party or third party.

iv) Foreign donations

A Member, an MEP, a political party or any branch of a political party, a third party, a candidate at a Dáil, Seanad or European election, or a candidate at a presidential election or his / her election agent may not accept a donation, of any value, from an individual (other than an Irish citizen) who resides outside of the island of Ireland. Neither must a donation, of any value, be accepted from a body corporate or an unincorporated body of persons which does not keep an office in the island of Ireland from which at least one of its principal activities is directed. Such donations are referred to hereafter as "foreign donations".

Where a foreign donation or a donation in excess of the maximum prescribed limit is received, the recipient must, within 14 days, either return the donation to the donor and keep a written record of its return (for the purpose of its being furnished to the Standards Commission if required by it) or must notify the Standards Commission and remit the donation, or the value thereof, to the Standards Commission. In the case of a monetary donation which exceeds the maximum prescribed limit, the excess amount only must be returned to the donor or remitted to the Standards Commission.

D. Offences and Penalties

The Electoral Acts provide for a number of offences and associated penalties for failure to comply with the provisions of the Electoral Acts regarding the acceptance and disclosure of donations. The relevant offences and penalties are as follows:

• Failure to notify or remit an anonymous donation to the Standards Commission may result in a fine of up to €1,269.74.
• Knowingly accepting a prohibited donation from an individual making multiple donations may result in a fine of up to €1,269.74.
• Failure to notify the Standards Commission of, or remit, as appropriate, to the Standards Commission, or return, as appropriate, to the donor, a foreign donation or a donation in excess of the maximum prescribed limit, may result in a fine of up to €1,269.74.
• Failure to furnish to the Standards Commission a Donation Statement, or if required to, a Certificate of Monetary Donations form and a statement from the financial institution in which a political donations account is held, within the relevant statutory deadline may result in a fine of up to €1,269.74. In addition, there is the possibility of an on-going fine of up to €126.97 per day for each day, after a conviction, on which the Donation Statement and / or the accompanying documentation are still outstanding.
• Knowingly furnishing to the Standards Commission a Donation Statement or Statutory Declaration, a Certificate of Monetary Donations form or a statement from the financial institution in which a political donations account is held, which is false or misleading may result in a fine of up to €25,394.76 and/or up to 3 years imprisonment.
• Failure by a company, trade union, etc., to fail to comply with the provisions of section 26 may result in a fine of up to €1,269.74. Where the offence is proved to have been committed with the consent of, or to be attributable to, any neglect on the part of any person being a director, manager, secretary or other similar officer of a body corporate, or a person purporting to act in any such capacity, that person as well as the body corporate will be deemed to be guilty of that offence.

All of the above offences are prosecuted by the Director of Public Prosecutions. The Standards Commission has been advised by the Office of the Director of Public Prosecutions to forward reports of any such offences directly to An Gardaí.

E. Requirements of the legislation regarding third parties

The Electoral Acts define "a third party" as any individual or group, other than a registered political party or candidate at an election, who or which accepts, in a particular calendar year, a donation for political purposes, which exceeds €126.97 in value.

A third party must, on receipt of such a donation, and before incurring any expenses for political purposes (or, as the case may be, any further such expenses), register with the Standards Commission by furnishing the following information:

• the name and address of the third party and the name and address of the person responsible for it's organisation, management or financial affairs ("responsible person");
• a statement of the nature, purpose and estimated amount of donations to, and proposed expenses of, the third party during the year;
• an indication of any connection the third party may have with any political party or candidate at an election or referendum or otherwise.

Having registered as a third party, the individual / group must comply with the provisions of the Electoral Acts applicable to third parties. This includes the requirement to open a Political Donations Account if a monetary donation exceeding €126.97 is received and to furnish the necessary returns to the Standards Commission relating to that account. The individual / group must also comply with the provisions of the Electoral Acts concerning the treatment of prohibited donations (see section 3.1C above).

Additional obligations apply if a third party proposes to incur expenses at a Dáil, European or presidential election to promote or oppose a candidate or political party or to otherwise seek to influence the outcome of the election (see section 3.1F(iii) below).

F.  Limitation and Disclosure of Election Expenses

"Election expenses" are defined in the Electoral Acts as expenses incurred for electoral purposes on the provision of property, goods or services for use at an election during the election period in order to promote or oppose, directly or indirectly, the interests of a candidate, a political party or a political group at an election or to otherwise influence the outcome of an election. Election expenses include benefits-in-kind and expenses incurred where the costs have been met from public funds.

The Schedule to the Electoral Acts sets out the actual matters, which, when used in accordance with the above definition, constitute election expenses (these matters are provided at Appendix 9 to this manual). The Schedule also sets out a number of items which shall not be regarded as election expenses.

i) Expenditure Limits

The Electoral Acts provide maximum limits for the amount of expenditure which may be incurred on behalf of a candidate at a Dáil election. The Electoral Acts also provide that expenditure limits at European and presidential elections may be prescribed by Order of the Minister for the Environment, Heritage and Local Government. (The Electoral Acts make no provision for the limitation, disclosure or reimbursement of election expenses at Seanad elections.) Expenditure limits at Dáil, European or presidential elections may be increased by the Minister for the Environment, Heritage and Local Government in line with changes in the Consumer Price Index. The expenditure limits which currently apply are as follows:

At a Dáil or European election, a candidate's political party may incur up to 100% of the expenditure limit which he / she is entitled to incur at the election. The Electoral Acts do not provide for the incurring of election expenditure by a political party at a presidential election. Expenditure incurred by a political party on behalf of a candidate at a presidential election must be authorised and accounted for by the candidate's election agent. The amount of the statutory expenditure limit assigned by a candidate for spending by a political party must be agreed in writing between the candidate and the party. Expenditure incurred by a candidate and his / her political party together may not exceed the statutory expenditure limit applying to the candidate at the election. Total expenditure incurred by a political party may not exceed the sum of the amounts assigned to the party by its candidates.

ii) Appointment of agents

Each candidate at a Dáil, European or presidential election is required to appoint an election agent for the purposes of incurring expenditure and making payments on the candidate's behalf (a candidate may act as his / her own election agent). The appointment must be notified to the Returning Officer for the election before the latest time for withdrawal of candidature at the election. If an election agent has not been appointed by this time, the candidate is deemed to be acting as his / her own election agent.

Each political party contesting a Dáil or European election must appoint a national agent for the purposes of incurring expenditure and making payments on the party's behalf. This appointment must be notified to the Standards Commission before the latest time for withdrawal of candidature at the election. If a national agent has not been appointed, the party's appropriate officer (or leader of the party, if no appropriate officer stands appointed) is deemed to be the national agent. The Standards Commission is required to publish details of national agents appointed at Dáil and European elections in Iris Oifigiúil.

Election agents and national agents may authorise in writing other persons (including the candidate) to incur expenditure, within specified limits, on their behalf at the election. Election agents and national agents must account for expenditure incurred by authorised persons in their Election Expenses Statement.

iii) "Other persons"

Section 31(7) of the Electoral Acts (section 51(6) in the cases of a presidential election) also provide that "other persons" who have not been authorised by a candidate's election agent or a party's national agent may incur expenditure at a Dáil, European or presidential election. In order to do so, the person (which may be an individual or a group) must provide the following information to the Standards Commission before incurring any election expenses:

1. name, address and description of the person proposing to incur the election expenses;
2. a statement of the nature, purpose and estimated amount of the expenses; and
3. an indication of the person's connection, if any, with any candidate or political party at the election.

On receipt of such information, the Standards Commission may consider that the individual / group is connected to a particular candidate or political party contesting the election. In such circumstances the expenditure incurred by the individual / group will be subject to the expenditure limits applying to the candidate or political party at the election and will have to be accounted for, as appropriate, by the candidate's election agent or the party's national agent. Where the Standards Commission considers that the "other person" is not connected to any candidate or political party contesting the election, the "other person" will be required to furnish an Election Expenses Statement to the Standards Commission.

iv) Publishers of newspapers, magazines etc.

Section 31(10) of the Electoral Acts (section 52(9) in the case of a presidential election) provides that the publisher of a newspaper, magazine or other periodical publication may not publish any advertisement or notice which promotes or opposes the interests of a candidate or political party at an election unless requested to do so by either a candidate, a candidate's election agent, a political party's national agent, a person authorised in writing by either agent or an "other person" who can produce a certificate from the Standards Commission certifying that it has been notified (in accordance with section 31(7) or section 52(6) of the Electoral Acts as appropriate) of the person's intention to incur election expenses.

v) Election Expenses Statements

All election expenses incurred on goods, property or services which are used during the election period at a Dáil, European or presidential election must be accounted for in an Election Expenses Statement which is furnished to the Standards Commission. Expenses incurred on property, goods or services which were not used during the election period are not accounted for. The election period at a Dáil general election is from the date of the dissolution of the Dáil until polling day, both dates included. At a Dáil by-election, the election period is from the date of the issue of the writ until polling day, both dates included. In the case of European and presidential elections, the election period is from the date of the order appointing polling day up until polling day itself, both dates included.

An Election Expenses Statement must be furnished to the Standards Commission within 56 days of polling day by a candidate's election agent, the national agent of a political party or by any "other persons" which incurred election expenses at an election. The Election Expenses Statement is accompanied by a Statutory Declaration on which the person furnishing the Statement, certifies that the information provided on the Election Expenses Statement is, to the best of his / her knowledge and belief, correct in every material respect. The Statutory Declaration must be witnessed by either a practising solicitor, peace commissioner, commissioner for oaths or notary public.

The Electoral Acts provide that claims for payment of an election expense must be submitted to an election agent or national agent within 45 days of polling day. A claim submitted after this time may not be paid by the agent concerned. The expenses incurred, however, are subject to the expenditure limit applying to the candidate or party and must be accounted for in the Election Expenses Statement submitted by the candidate's election agent or the party's national agent.

Details of any disputed claims relating to expenditure incurred at the election must also be included on an Election Expenses Statement. Where there are disputed election expenses included on an Election Expenses Statement, the Standards Commission must be informed of the amount agreed as payable by the election agent / national agent if and when the dispute is settled.

Receipts, invoices or vouchers for every payment of an expense exceeding €126.97 must be furnished with the Election Expenses Statement. The Standards Commission may request election agents and national agents to furnish samples of election material used.

G.  Offences and Penalties

The Electoral Acts provide for a number of offences and penalties in relation to the incurring and disclosure of election expenses, as follows:

• Failure by an "other person" to notify the Standards Commission of an intent to incur election expenses can incur a fine of up to €1,269.74.
• If a person who is not authorised to do so incurs expenditure or makes a payment in relation to an election, he or she, on conviction, can be fined up to €1,269.74.
• Failure by the publisher of a newspaper, magazine or other periodical publication to comply with the provisions of section 31(10) or 52(9) of the Electoral Acts may result in a fine of up to €1,269.74.
• The penalty, if an election agent or national agent is found guilty of the offence of breaching the expenditure limit, is a fine of up to €1,269.74.
• Payment of claims received more than 45 days after polling day can result in a fine of up to €1,269.74.
• Failure to make such enquiries and maintain such records as are necessary for the purpose of furnishing an Election Expenses Statement and making a Statutory Declaration may result in a fine of up to €1,269.74.
• Failure to furnish an Election Expenses Statement form to the Standards Commission by the statutory deadline can result in a fine of up to €1,269.74 and an on-going fine of up to €126.97 for each day, after a conviction, on which the Election Expenses Statement form is outstanding.
• Knowingly furnishing a false or misleading Election Expenses Statement to the Standards Commission can result in a fine of up to €25,394.76 and/or up to three years imprisonment.

All of the above offences are prosecuted by the Director of Public Prosecutions. The Standards Commission has been advised by the Office of the Director of Public Prosecutions to forward reports of any such offences directly to An Gardaí.

H.  Reimbursement of Election Expenses

The Electoral Acts provide for the reimbursement of election expenses incurred by qualified candidates at Dáil elections. The Electoral Acts also provide that the Minister for the Environment, Heritage and Local Government may make regulations providing for the reimbursement of election expenses incurred by qualified candidates at European and at presidential elections.

A candidate at a Dáil, European or presidential election may qualify for a reimbursement of his / her election expenses if he / she is either:

1. elected at the election; or
2. is unsuccessful at the election, but, at any stage of the counting of votes, received in excess of one quarter of the quota for the constituency.

In the case of a Dáil by-election, a candidate is qualified for a reimbursement if he / she is elected or receives, at any stage of the counting of the votes, one quarter of what would have been the quota for the constituency had the by-election been a general election.

The amounts which may be reimbursed to qualified candidates may be increased by the Minister for the Environment, Heritage and Local Government in line with changes in the Consumer Price Index. The reimbursement amounts which currently apply are as follows:

• the lesser of €6,348.69 or the actual expenses incurred on a candidate at a Dáil election
• the lesser of €38,092.14 or the actual expenses incurred on a candidate at a European election
• the lesser of €260,000 or the actual expenses incurred on a candidate at a presidential election.

Expenditure incurred by a political party in a constituency on behalf of a candidate at a Dáil or European election may be taken into account for the purposes of calculating the amount which may be reimbursed.

The reimbursement amount in each case is inclusive of Value Added Tax and is not liable to income tax. The reimbursement is made to the candidate. It is a matter for the candidate to then reimburse any expenses incurred on his / her behalf to his / her political party.

I.  Exchequer funding of qualified political parties

The Electoral Acts provide for the Exchequer funding of qualified parties. A "qualified party" is a political party which is registered in the Register of Political Parties compiled by the Clerk of Dáil Éireann and whose candidates at the preceding Dáil general election received a combined first preference vote which was not less than 2% of the total first preference vote received by all candidates at the election.

Each qualified party receives an amount of €126,973 annually, plus a proportion of a fund, which was originally set at €3,809,214.20 per annum and which increases in line with general pay increases in the civil service. The amounts payable to each qualified political party from the fund is also based on the party's performance at the last general election. The proportion due to each qualified party is calculated by reference to the first preference votes received by the party's candidates expressed as a percentage of the total first preference votes received by candidates of all qualified parties. Payments are made on a quarterly basis, in arrears, by the Minister for Finance.

The funds received by a qualified party must be applied to the "general conduct and management of the party's affairs and the lawful pursuit by it of any of its objectives and, without prejudice to the generality of the foregoing, any or all of the following purposes:"

• general administration;
• research, education and training;
• policy formulation;
• co-ordination of the activities of the branches and members of the party.

Payments made to a qualified party are also deemed to include provision in respect of expenditure by the party on the promotion of participation by women and by young persons in political activity.

Exchequer funding provided under the Electoral Acts may not be used by qualified parties to recoup election or referendum expenses.

The appropriate officer of each qualified party is required, annually, to furnish to the Standards Commission a Statement of Expenditure of Exchequer Funding received under the Electoral Acts. When furnishing the Statement the appropriate officer is required to confirm that the payments made in respect of the year in question were applied to some or all of the purposes provided for in the legislation (above) and to indicate the actual matters to which the payments were applied. The Electoral Acts provide that the Statement must be audited by a public auditor. The auditor's report must also be furnished to the Standards Commission.

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