December 2003 - Review of Electoral Acts

Commencement of the election period

Another aspect of the legislation which may require to be reviewed is the matter of when the election period actually commences and what expenditure is required to be accounted for. There was much comment about this during and after the Dáil general election, some of which was, to say the least, not very well informed. In examining this question it should be borne in mind that the periods between elections are not fixed and have shown considerable variation in the past two decades.

The broad position is that the election period commences once the Dáil has been dissolved and ends on polling day. Account must be taken of any expenditure incurred, at any time, on property, services or facilities which are used for election purposes during this period. Importantly, this includes expenditure incurred prior to commencement of the period on property, services or facilities which are used during the period. An example of this would be election posters which were purchased prior to dissolution of the Dáil and were used during the election period. Account must be taken of such use as part of the spending limit. The only circumstances in which the expenditure involved would not be reckonable as election spending would be if there was no use of the posters during the election period. This could arise if the posters were erected and removed prior to dissolution of the Dáil and were not used again during the election period which is an unlikely scenario.

The question to be addressed is whether expenditure on activity of an electioneering nature which occurs prior to dissolution of the Dáil and does not carry over into the election period should be regarded as election spending. There was ample evidence of such activity in the weeks and months leading up to the Dáil general election. Typically it involved candidates distributing literature, placing newspaper advertisements, etc., indicating that they would be standing and seeking voter support at the election. Political parties engaged in similar enterprise. Given the level of debate and comment around this issue and the potential for such to fundamentally undermine the perceived effectiveness of the legislation, the Standards Commission is of the view, as previously expressed by the former Public Offices Commission, that consideration should be given to whether, in respect of a specified period prior to commencement of the legally defined election period, there is a case for imposing some accountability in the context of the spending limits.

In this regard, the Standards Commission is fully aware of the difficulty in attempting to differentiate between what would be seen as normal representational activity prior to an election being called and what could be regarded as electioneering. If there is to be a legislative response in this matter, it is felt by the Standards Commission that the only practical approach, which would ensure clarity and offer some possibility of effective monitoring, would be to regard as election expenditure, which is covered by the limits, all expenditure incurred on any activity within the specified period which could reasonably be construed as intended to elicit support at the election for a candidate or political party. It is appreciated that this would require a record of expenditure being maintained for, say, a rolling three or six month period so that, if necessary, it could be accounted for by the relevant agent after the election. Once the three or six month period had expired in relation to a particular item of expenditure and the Dáil had still not been dissolved, the record in respect of that item would no longer require to be retained. It would also be necessary to ensure that expenditure on electioneering activity in the period prior to dissolution did not exceed the spending limit at the election or did not cause the limit to be reached prior to dissolution with the result that no expenditure would be permitted during the actual election period.

Notwithstanding the criticism of the present legislative position, the Standards Commission is aware that the approach outlined above has given rise to operational difficulties in other jurisdictions. Accordingly, extreme caution would require to be exercised in developing any proposals in this regard. The worst possible outcome would be the imposition of a regime which is extremely difficult, if not impossible, to supervise and which could lead to the legislation being brought into disrepute.

On a related issue, it will be noted from the Annual Report of the Standards Commission for 2002 that complaints were received from members of the Houses about what were described as high profile campaigns being conducted by Ministers relating to matters falling within the remits of their various Departments. The complainants were concerned that there was systematic spending of large amounts of public money by the Government to boost the political profiles of Ministers and Ministers of State in advance of the general election together with widespread and sustained use of personalised advertising by Ministers and Ministers of State, all of which was funded from the Exchequer.

In relation to the above, it might be noted that the Code of Conduct for Office Holders, drawn up by the Government in consultation with the Standards Commission and published in July 2003, addresses the matter in the following terms:

"Office holders are provided with facilities at public expense in order that public business may be conducted effectively. The use of these facilities should be in accordance with this principle. Holders of public office enjoy an enhanced public profile and should be mindful of the need to avoid use of resources in a way that could reasonably be construed as an inappropriate raising of profile in the context of a General Election.

Official facilities should be used only for official purposes. Office holders should ensure that their use of officially provided facilities are designed to give the public value for money and to avoid any abuse of the privileges which, undoubtedly, are attached to office."

Under the Standards in Public Office Act, 2001, the Code of Conduct is admissible in proceedings before a Court or other tribunal or a Committee or the Standards Commission and any relevant provision may be taken into account in determining a matter.

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