Combined Section 15/16 Manual of the Standards Commission

3.2 Functions of the Standards Commission under the Electoral Acts and administrative actions taken by it in the performance of those functions - Sections A - H

The functions and supervisory role of the Standards Commission under the Electoral Acts are set out in this section together with the administrative practices and procedures used by the Standards Commission in carrying out its functions. Primarily these functions concern:

• the disclosure of donations received;
• the return or remittance of prohibited donations;
• the opening and maintenance of political donations accounts;
• the disclosure (under section 24(1A) of the Electoral Acts) of donations made by individual donors;
• the disclosure (under section 26 of the Electoral Acts) of donations made by companies, trades unions etc.
• compliance with the Electoral Acts by third parties;
• compliance with the Electoral Acts by accounting units of political parties;
• the limitation and disclosure of election expenses at Dáil, European and presidential elections;
• the reimbursement of election expenses to qualified candidates at Dáil, European and presidential elections;
• reporting of expenditure of exchequer funding by qualified political parties;
• provision of guidelines and advice to persons to whom the provisions of the Electoral Acts apply;
• disclosure of information contained in statutory documentation furnished to the Standards Commission under the Electoral Acts; and
• conducting enquiries concerning possible contraventions of the Electoral Acts.

A.  Practice and procedure in relation to the receipt of Donation Statements

Where a person is required to furnish a Donation Statement (i.e. Member, MEP, appropriate officer, unsuccessful candidate or presidential election agent as the case may be) the Standards Commission will write to the person and inform him / her of his / her requirements under the Electoral Acts. This letter normally issues approximately four weeks in advance of the statutory deadline date in the case of annual returns and as soon as possible after polling date where elections are concerned. A blank Donation Statement form is enclosed with the letter.

The Standards Commission acknowledges receipt of each Donation Statement form. The Donation Statement is checked to ensure that it has been completed correctly and, in particular, that the statutory declaration has been correctly signed and witnessed.

The Standards Commission has adopted a Statement of Practice in relation to the processing of Donation Statements at Dáil and European elections. This Statement of Practice is attached at Appendix 8 of this Manual. Similar procedures as are outlined in the Statement of Practice are applied to the processing of Donation Statements due annually and to the processing of Donation Statements at presidential elections.

The Standards Commission maintains a physical file relating to each person who is required to furnish a Donation Statement. Records of correspondence with or relating to the person and original copies of the statutory documentation furnished are retained on these files. The Standards Commission also maintains an electronic database on which correspondence with or relating to the person is recorded.

B. Practice and procedure in relation to prohibited donations

Anonymous donations and donations from a multiple donor which are prohibited

Where the Standards Commission is informed of the receipt of an anonymous donation or a prohibited donation from an individual making multiple donations, it will lay the notification before the Houses of the Oireachtas in accordance with section 23(3) or 24A(4)(a) of the Electoral Acts as appropriate. If the donation or the value thereof, has not been remitted to the Standards Commission, it will request the recipient of the donation to do so immediately. Once the donation (or value thereof) has been remitted, the Standards Commission will notify the Dept. of Finance and request directions as to the disposal of the donation.

Foreign donations

Where a donation is disclosed on a Donation Statement from a donor who is not resident in the island of Ireland and it is not indicated on the Donation Statement that the donor is an Irish citizen, the Standards Commission will request the person furnishing the Donation Statement to confirm that the person is an Irish Citizen. Normally the Standards Commission accepts the recipient's confirmation that the donor is an Irish citizen. The Standards Commission may, however, look for proof of a donor's citizenship.

Where the Standards Commission identifies or is notified of the receipt of a prohibited foreign donation it will request the recipient to remit the donation or the value thereof to the Standards Commission or alternatively, to provide evidence that the donation was returned to the donor.

Donations in excess of the maximum prescribed limit

Where a donation is disclosed on a Donation Statement which is in excess of the maximum prescribed limit, the Standards Commission will request the person furnishing the statement to provide evidence that the excess donation was returned to the donor or alternatively, to remit the excess amount to the Standards Commission.

The Electoral Acts make no provision for laying notifications of foreign donations or donations in excess of the maximum prescribed limit before the Houses of the Oireachtas. Such notifications are not, therefore, laid by the Standards Commission before the Houses of the Oireachtas. Details of such notifications, however, are normally included in the relevant report by the Standards Commission to the Ceann Comhairle. Such reports are laid before the Houses of the Oireacthas and are published by the Standards Commission.

Similarly the Electoral Acts do not provide for the disposal of foreign donations or donations in excess of the maximum prescribed limit which are remitted to the Standards Commission. Where a foreign or excess donation is remitted, the Standards Commission will seek direction from the Department of Finance as to the disposal of the donation.

The Electoral Acts provide that prohibited donations must be returned to the donor or remitted to the Standards Commission within 14 days of receipt. Failure to do so is an offence. It is the practice of the Standards Commission not to seek a prosecution for such offences where the person has otherwise complied with the provisions of the legislation i.e. by returning the donation or remitting it to the Standards Commission.

C.  Practice and procedure in relation to the opening and maintenance of Political Donations Accounts

Where a person is required to furnish a Certificate of Monetary Donations and statement from a financial institution the Standards Commission Secretariat will write to the person and inform him / her of his / her requirements under the Electoral Acts. This letter normally issues approximately four weeks in advance of the statutory deadline date in the case of annual returns and as soon as possible after polling date where elections are concerned. A blank Certificate of Monetary Donations form is enclosed with the letter. (Where the person is also required to furnish a Donation Statement a single letter enclosing both forms issues.)

Where a political donations account has been opened and the account has not been active (i.e. there have been no deposits to or withdrawals from the account) during the relevant period, the Standards Commission requests that the person confirm this on the Certificate of Monetary Donations form. In such circumstances, the person is not required to complete the Statutory Declaration or to furnish a statement from the financial institution in which the political donations account is held.

The Standards Commission acknowledges receipt of each Certificate of Monetary Donations form and statement from a financial institution. The Certificate of Monetary Donations form is checked to ensure that it has been completed correctly and, in particular, that the statutory declaration, where required to, has been correctly signed and witnessed. The statement from the financial institution is checked to ensure that it covers the relevant period (see bullet paragraphs in section 3.1B).

Where a Certificate of Monetary Donations form and statement from a financial institution is required and has not been received, the Standards Commission will issue a formal reminder to the person required to make the return. The reminder, which will issue on the 7th day after the statutory deadline will draw attention to the offence / penalty for failing to return the relevant form.

Fourteen days after the relevant statutory deadline, the Standards Commission will issue a second reminder to any person from whom a Certificate of Monetary Donations form and statement from a financial institution is required and has not been received.

If a Certificate of Monetary Donations form and statement from a financial institution is still outstanding 21 days after the statutory deadline, the Standards Commission will issue a final reminder to the person concerned. This reminder will again draw attention to the offence / penalty for failing to return the relevant form and will advise the person that failure to make the necessary return within seven days of this reminder may result in a referral of the matter to the Gardaí.

If a Certificate of Monetary Donations form and statement from a financial institution has not been received 28 days after the statutory deadline, the Standards Commission will consider whether or not to refer the matter to the Gardaí.

If, following a referral of the matter to the Gardaí, the Standards Commission receives a Certificate of Monetary Donations form and statement from a financial institution from the person concerned, it will notify the Gardaí accordingly. It will be a matter for the Gardaí to decide whether to proceed with the investigation of the offence of failure to furnish a Certificate of Monetary Donations form and statement from a financial institution by the statutory deadline.

It should be noted that referrals to the Gardaí are mentioned in reports which the Standards Commission furnishes to the Ceann Comhairle. The Standards Commission may also include in its report details of persons who failed to furnish a Certificate of Monetary Donations form and statement from a financial institution by the statutory deadline together with the date on which the statement was subsequently received.

The Standards Commission maintains a physical file relating to each person / body who is required to furnish a Certificate of Monetary Donations and statement from a financial institution. Where the person is also required to furnish a Donation Statement a single file is maintained in respect of both returns. Records of correspondence with the person / body and original copies of the statutory documentation furnished are retained on these files. The Standards Commission also maintains an electronic database on which correspondence with or relating to the person / body is recorded.

D.  Practice and procedure in relation to the disclosure, under section 24(1A) of the Electoral Acts, of donations made by individual donors

The Standards Commission publishes a public notice annually in national newspapers highlighting the requirements of section 24(1A) of the Electoral Acts. A detailed explanatory note regarding the requirements of section 24(1A) is published on the website of the Standards Commission. A hard copy of the explanatory note is available on request from the Secretariat.

The Standards Commission monitors Donation Statements received from political parties and from Members, MEP's and election candidates, to identify individuals who may have made multiple donations exceeding €5,078.95 to a political party and / or one of more of its members.

Where a section 24(1A) donor is notified to the Standards Commission or otherwise identified, the Standards Commission will write to the donor, advising him / her of his / her requirements under the Electoral Acts. A Donation Statement form for completion will also be provided.

If the person is notified / identified to the Standards Commission in advance of the statutory deadline of 31 January, the person will be required to furnish his / her Donation Statement by this date. If the person is notified / identified to the Standards Commission after this date, he / she will be given a reasonable period of time (usually 14 days) in which to furnish the Donation Statement. If the Donation Statement is not received, a series of reminders will issue. These reminders will refer to the offence and penalty for failure to furnish a Donation Statement. If the Donation Statement has not been received within 7 days of a third reminder having issued the Standards Commission will consider referring the matter to the Gardaí.

Details of the donations made by the person may be contained in a report by the Standards Commission to the Ceann Comhairle and will be published on the website of the Standards Commission.

The Standards Commission maintains a physical file relating to each donor who is required to furnish a Donation Statement. Records of correspondence with or relating to the person and original copies of the statutory documentation furnished are retained on these files. The Standards Commission also maintains an electronic database on which correspondence with or relating to the person is recorded.

E.  Practice and procedure in relation to the disclosure in annual accounts / annual returns of donations made by companies, trades unions etc.

Each year the Standards Commission published a public notice in the national newspapers notifying companies, trades unions etc. of the requirements of section 26 of the Electoral Acts. A detailed explanatory note regarding the requirements of section 26 is also published on the website of the Standards Commission. A hard copy of the explanatory note is available on request from the Secretariat.

The Standards Commission also writes to a broad range of representative bodies (e.g. IBEC, ICTU) enclosing a copy of its explanatory note and requesting them to inform their members of the requirements of section 26. The Standards Commission also writes directly to companies or bodies that it has identified as having made donations exceeding €5,078.95. It is also the practice of the Standards Commission to check with the Companies Registration Office that such companies have included relevant donation details in their returns to that office.

The Standards Commission maintains a physical file on which correspondence with companies, trades unions or representative bodies regarding section 26 of the Electoral Acts is held. The Standards Commission also maintains an electronic database on which such correspondence is recorded.

F. Practice and procedure in relation to accounting units:

The provisions of the Acts in relation to accounting units came into effect on 01 January 2002. The first returns were due by 31 March, 2003, which were in respect of 2002. The Electoral Acts provide that the appropriate officer of each political party must notify the Standards Commission of the name and address of each accounting unit of the party, including the name of the responsible person of the accounting unit. The Standards Commission writes each year to the appropriate officers of each political party requesting them to confirm the status of the accounting units previously notified and to provide details of any new accounting units.

The Standards Commission writes to the responsible person of each accounting unit which has been notified to it, advising him / her of the requirements of the legislation and enclosing a Certificate of Monetary Donations for completion and return. This letter issues well in advance of the 31 March deadline.

Where a Certificate of Monetary Donations and statement from a financial institution is received, the Standards Commission issues an immediate acknowledgement to the responsible person of the accounting unit.

The Standards Commission maintains a physical file relating to each accounting unit notified to it. Records of correspondence with or relating to the accounting unit and the statutory documentation furnished are retained on these files. The Standards Commission also maintains an electronic database on which correspondence with or relating to an accounting unit is recorded.

G.  Practice and procedure in relation to third parties

The Standards Commission places an advertisement annually in national newspapers, highlighting the provisions of the legislation in relation to third parties. A detailed explanatory note regarding the requirements attaching to third parties is published on the website of the Standards Commission. A hard copy of the explanatory note is available on request from the Secretariat.

The Standards Commission also writes to any individuals / groups of which it is aware, from media coverage or otherwise, may be engaged in activities which are subject to the provisions of the legislation relating to third parties ("potential third parties"). A copy of its explanatory note is enclosed with the letter. The individual / group is requested to consider whether it is required to register as a "third party".

If an individual / group does not reply or indicates that it is not required to register as a third party no further action is taken in relation to the individual / group. However, in the latter case, the Standards Commission will pursue the matter with the individual / group concerned if it has evidence to the contrary.

Where an individual / group has registered as a "third party" the Standards Commission writes to its responsible person each year in advance of the 31 March deadline and provides him / her with a Certificate of Monetary Donations for completion. The Standards Commission also includes a separate form, devised in order that third parties which have not been active during the previous calendar year can advise the office accordingly without having to complete the Certificate of Monetary Donations and Statutory Declaration.

The Standards Commission maintains a physical file relating to each registered third party. Records of correspondence with or relating to the third party and the statutory documentation furnished are retained on this file. The Standards Commission also maintains an electronic database on which correspondence with or relating to a third party is recorded.

The Standards Commission also maintains a physical file relating to each potential third party. Records of correspondence with or relating to the individual / group are retained on this file. The Standards Commission also maintains an electronic database on which correspondence with or relating to a potential third party is recorded.

H. Practice and procedure in relation to supervision of the limitation and disclosure of election expenses at Dáil, European and Presidential elections

i) Practices and procedures used by the Standards Commission before and during an election

The Standards Commission produces guidelines for each Dáil, European and presidential election. The guidelines concern the acceptance and disclosure of donations, and the limitation, disclosure and reimbursement of election expenditure. The guidelines are issued to candidates, election agents and the national agents of political parties with candidates contesting an election.

The Standards Commission issues a public notice in a wide circulation of national and provincial newspapers highlighting the requirements of the legislation which will apply to "third parties" and "other persons" at the election. A detailed explanatory note regarding these requirements is published on the website of the Standards Commission. A hard copy of the explanatory note is available on request from the Secretariat. Where "third parties" or "other persons" are identified to the Standards Commission they are issued with a copy of the Standards Commission's explanatory note or, if it is considered appropriate, a copy of the Standards Commission's guidelines for the election.

In addition to providing guidelines at elections, the Standards Commission also provides specific advice to individual candidates, their election agents, the national agents of political parties and to "third parties" and "other persons".

The Standards Commission also writes to the publishers and advertising managers of newspapers, magazines and periodical publications as it considers appropriate, to inform them of the requirements of section 31(10) of the Electoral Acts (or section 52(9) in the case of a presidential election).

Returning Officers at Dáil, European and presidential elections are required to notify the Standards Commission of the name of each candidate contesting the election in their constituency and the name and office address of each election agent appointed. The Standards Commission liaises with Returning Officers to ensure that this information is provided as soon as possible.

The Standards Commission is required under the Electoral Acts to publish in Iris Oifigiúil the name and office address of each person appointed, or deemed to be appointed, as national agent of a political party for a Dáil or European election.

During the course of an election campaign, staff of the Secretariat make constituency visits where they meet with candidates, election agents and the national agents of political parties to provide advice in relation to specific issues. Constituency visits are also used as an opportunity to monitor expenditure at an election through general observation of postering, advertising etc. and by obtaining samples of posters and election literature.

During the election period, the Standards Commission monitors newspaper advertising by candidates and political parties. This is to ensure that all such advertising is properly accounted for by election agents and national agents in their Election Expenses Statements. It is also to ensure that advertisements have not been taken out by individuals / groups who have not complied with the provisions of sections 31(7) of 52(6) of the Electoral Acts as appropriate (see para 3.1F(iii)) and that publishers of newspapers, magazines etc have not contravened the provisions of sections 31(10) or 52(9) as appropriate by accepting such advertisements.

ii) Practices and procedures used by the Standards Commission with regard to the receipt of Election Expenses Statements

The Standards Commission produces an Election Expenses Statement form for the purposes of accounting for election expenses. (A sample Election Expenses Statement form is provided at Appendix 10 of this manual.) Shortly after polling day at an election the Standards Commission Secretariat writes to each person who is required to furnish an Election Expenses Statement enclosing the relevant form for completion. Staff of the Secretariat are available to provide advice to, or if necessary, to meet with election agents or national agents after the election to assist in the completion of their Election Expenses Statements.

The Standards Commission acknowledges receipt of each Election Expenses Statement form received. Each statement is checked to ensure that it has been correctly completed and that the Statutory Declaration is correctly signed and witnessed. The Standards Commission checks information provided on an election agent's Election Expenses Statement with relevant information provided on the Election Expenses Statement submitted by the party's national agent and by the election agents of any "running mates" of the candidate in the constituency. Relevant details provided by a candidate on his / her Donation Statement and information obtained by representatives of the Standards Commission while monitoring expenditure at the election may also be referenced when checking an Election Expenses Statement form.

Information contained in the Election Expenses Statement is also checked against invoices / receipts provided by the agent. Where relevant receipts / invoices have not been provided, the Standards Commission writes to the agent concerned requesting that they be furnished.

A Statement of Practice of the Standards Commission in relation to the processing of Election Expenses Statements at Dáil and European elections is attached at Appendix 8 of this Manual. The procedure is much the same in the case of Election Expenses Statements at presidential elections.

iii) Procedures in relation to an overspend at a Dáil, European or presidential election

If, having reviewed an Election Expenses Statement submitted by an election agent or national agent, the Standards Commission is of the opinion that the agent may have exceeded the expenditure limit available to him / her at an election, it must notify the person concerned that he / she may have contravened the Electoral Acts. The person is given 14 days to furnish any comments he / she may have on the alleged contravention. These comments must be considered by the Standards Commission.

If, having regard to the agent's comments, the Standards Commission continues to be of the opinion that he / she has overspent it must furnish a report on the matter to the Gardaí.

In furnishing its report to the Gardaí, the Standards Commission may include comments furnished to it by the agent concerned. If the Standards Commission is of the opinion that the agent did not knowingly overspend or that the overspend was not material, it will state so in its report. Notwithstanding any views it may have in this regard, the Standards Commission must refer cases of overspending to the prosecuting authorities. It is a matter for the Gardaí and the Director of Public Prosecutions to decide whether a prosecution of the offence should proceed.

Where an election agent has overspent, the Standards Commission is also required to notify the Minister for Finance that the amount of the overspend should be deducted from any reimbursement due to the candidate.

Where a national agent has overspent, the Standards Commission must notify the Minister for Finance that the amount of the overspend should be deducted from the next payment of any Exchequer funding due to the party under the Electoral Acts.

Where there has been an overspend, a person may also petition the High Court to set aside the result of the election. The Standards Commission has no function in this regard.

iv) Practice and procedures in relation to contraventions of sections 31(7) or 52(6) of the Electoral Acts by "other persons".

Where the Standards Commission becomes aware that a person may have contravened the provisions of section 31(7) or 52(6) (see para 3.1F(iii) above) it will write to the individual / group concerned informing them of the requirements of the Electoral Acts and seeking an explanation as to why the individual / group did not comply with these provisions. If the Standards Commission considers that the individual / group is connected to a particular candidate or political party contesting the election it may request the candidate's election agent or the party's national agent to account for the expenditure. If, however, the relevant agent refuses to account for the expenditure on the basis that he / she did not authorise the individual / group to incur such expenditure the Standards Commission may consider that the individual / group may have committed an offence and refer the matter to An Gardaí.

Where the Standards Commission considers that the individual / group is not connected to any candidate or political party contesting the election, it will request the individual to furnish an Election Expenses Statement to the Standards Commission. In such circumstances it is not the practice of the Standards Commission to seek a prosecution for this offence where an individual / group otherwise complies with the provisions of the legislation by furnishing an Election Expenses Statement form. If the individual / group refuses to furnish an Election Expenses Statement, the Standards Commission may consider that the individual / group has committed an offence and refer the matter to An Gardaí.

v) Practice and procedures in relation to contraventions of sections 31(10) or 52(9) of the Electoral Acts by publishers of newspapers, magazines etc.

Where the Standards Commission considers that the publisher of a newspaper, magazine etc. may have contravened the provisions of sections 31(10) or 52(9) by publishing an advertisement which was not properly authorised, it will write to the publisher concerned and seek an explanation as to why he / she contravened the provisions of the legislation. If the Standards Commission is satisfied that a publisher has not intentionally contravened the provisions of section 31(10) or 52(9), and that procedures have been put in place to ensure that the circumstances which gave rise to the advertisements being published without proper authority do not occur again it may decide not to take any further action in terms of a referral of either matter to the Gardaí.

vi) Records held in relation to Election Expenses Statements

The Standards Commission maintains a physical file for each person required to furnish an Election Expenses Statement. Records of correspondence with or relating to the person and original copies of the Election Expenses Statements and supporting documentation furnished are retained on these files.

The Standards Commission also maintains an electronic database on which correspondence with candidates, election agents, national agents and "other persons" is recorded. Details of donations disclosed by unsuccessful candidates, election expenses incurred by election agents, national agents and other persons and reimbursements made to qualified candidates are also held on this database.

The Standards Commission also maintains a number of general correspondence paper files relating to each election. These files normally relate to the production of guidelines, public notices and explanatory notes for elections, the preparation of its report on the election and correspondence with the publishers of newspapers, magazines etc.

vii) Disclosure of information contained in Election Expenses Statements

When finalised, Election Expenses Statements are laid before the Houses of the Oireachtas. The Standards Commission also produces a report to the Ceann Comhairle on the election. The Ceann Comhairle is required to lay the report before the Houses of the Oireachtas. The report contains details of the donations disclosed by unsuccessful candidates at the election and details of election expenses incurred by candidate's election agents, the national agents of political parties and by "other persons". The report will also include details of reimbursements due to qualified candidates at the election and details of any contraventions of the legislation. Publication of the report is normally accompanied by a press release from the Standards Commission. Both the report and the press release are published on the website of the Standards Commission. The Election Expenses Statements and accompanying receipts/invoices are retained for public inspection at the offices of the Standards Commission for a period of three years.

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