Annual Report 2005

Proposals for changes to the Ethics and Electoral legislation

The Standards Commission has proposed a number of changes to both the Ethics and Electoral Acts at various times; some of these are summarised below.

Ethics Legislation

• Provision for the appointment by the Standards Commission of an Inquiry Officer to carry out a preliminary inquiry into a matter which is not the subject of a complaint, but where the Standards Commission considers it appropriate to do so.
• Provision in regulations amending Section 5(2) requiring members to furnish statements of 'nil' interests to the Standards Commission rather than to the relevant Clerk to be made in primary legislation in order to remove any doubt as to its constitutionality.
• Provision that, where an elected member or an appointee to a senior office in a public body furnishes an application statement to the Standards Commission, which indicates that the person has applied to the Office of the Collector General for the issue to him or her of a tax clearance certificate and that a decision has not been made, that person shall be required to furnish a tax clearance certificate to the Standards Commission where such a certificate is subsequently issued to him or her.
• Provision for the application by the Standards Commission of discretion as to whether an investigation is warranted into a contravention of the requirements on elected members and appointees to senior office to provide evidence of compliance with specified taxation legislation.
• Amendments to the time limits within which statutory declarations, tax clearance certificates and application statements are to be made or issued and furnished to the Commission - for example, tax clearance certificates could be issued and furnished to the Commission within six months rather than nine months as at present and that statutory declarations could be made and furnished within three months rather than made within one month and furnished within nine months as at present.
• Revision of the timescale for the taking of proceedings concerning possible offences regarding the making of false statutory declarations.
• Provision for the date of first assembly of the relevant House of the Oireachtas be used as the election date for the purposes of determining the time limits by which an elected member must make his or her statutory declaration and furnish to the Standards Commission a tax clearance certificate or an application statement.
• The amendment of Section 24(2)(b)(ii) of the Standards in Public Office Act 2001 to provide that a report by the Standards Commission concerning the contravention of the tax clearance provisions by an Attorney General who is not a member of the Oireachtas, and who subsequently complied, should be sent to both Houses of the Oireachtas rather than to 'the House' as is currently provided.
• That the Chairmen of Oireachtas Committees be designated as Office Holders for the purposes of the Ethics Acts - i.e. that the disclosure requirements of the Acts would apply to them. This could be done by motion in the Houses - an amendment to the Acts is not necessary.

Electoral Legislation

The Standards Commission published a review of the Electoral Acts in December 2003 and suggested a range of amendments at that time. These included:

• As the body with responsibility for supervising the Electoral Acts the Standards Commission should have a statutory basis on which to review the legislation and report on its findings.
• Certain sections of the Act need to be amended to take account of the fact that Members of Local Authorities and candidates at local elections have their own reporting requirements under the Local Elections (Disclosure of Donations and Expenditure) Act 1999 as amended by the Electoral (Amendment) Act 2001 and that the Standards Commission does not have a supervisory function in relation to this legislation.
• Provision for offences and penalties for failure to comply with the provisions of Parts IV, V and VI of the Electoral Act - these parts relate to disclosure of donations, expenditure by candidates and political parties at Dáil and European Parliament elections, and donations and election expenses at presidential elections, respectively.
• Provision for an offence and penalty for failing to comply with a request from the Standards Commission (under section 4(4) of the Act) to provide information or documentation.
• The definition of a "financial institution" for the purposes of opening political donations accounts should be amended to include credit unions.
• Provision for the disposal of surplus donations in situations where a person is no longer required to maintain a political donations account and there are funds remaining in the account which have not been used.
• Provide for the furnishing of a single Donation Statement in situations where a person holds a dual mandate or where, in a particular year he / she as a TD, Senator or MEP unsuccessfully contested a Dáil, Seanad or European election. (Currently such a person would be required to furnish an annual Donation Statement and a Donation Statement as an unsuccessful candidate at the election.)
• Consideration should be given to imposing some accountability, in the context of the spending limits, in respect of a specified period prior to commencement of the legally defined election period (i.e. that the election period might be extended to include a period prior to the dissolution of the Dáil or moving of the writ at an election).
• The definition of "minor expenses" should be limited to €126.97 per candidate per election.
• Provide that a candidate (or other person) shall be guilty of an offence if, at any time before, during or after the election he / she fails to provide the necessary information to an election agent or national agent for the purposes of facilitating the completion of the agent's Election Expenses Statement. Provide a penalty for this offence.
• The definition of what constitutes a "third party" should not be determined on the basis of whether an individual / group has received a donation but should focus on spending by individuals / groups and to regard them as third parties if they intend to incur expenditure over a certain threshold, say €5,000, in relation to a campaign which is for political purposes as defined in the legislation.
• The registration process for "third parties" and for "other persons" (who intend to incur election expenses) should be amalgamated. (There should be no need for a individual/group to register as a "third party" and to also register as an "other person".)
• The legislation suggests that once an individual/group has registered as a third party, it is required to furnish documentation to the Standards Commission on an annual basis even though it is no longer active for political purposes. The approach taken by the Standards Commission in this matter has been to ask third parties to confirm whether or not they intend to continue in existence. If they do not, there will be no further contact made with them. This situation might be addressed and clarified.
• Consideration should be given to imposing a limit on the amount of expenditure which may be incurred by a "third party"/"other person" at an election. For example if a "third party"/"other person" is opposing a particular candidate at an election the amount of expenditure which can be incurred by the "third party"/"other person" should not exceed the statutory spending limit applicable to that candidate.

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