Annual Report 2007

Summary of proposed amendments to the 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 generally with the provisions of Parts IV, V and VI of the 1997 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 1997 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 for political purposes. It should instead 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.

In its report on the Dáil general election of 2007, the Standards Commission also recommended the following amendments to the Electoral Acts, which it hoped might be considered in the context of a review of the Electoral Acts with the establishment of an Electoral Commission as set out in the current programme for government.

The Standards Commission is required to consider whether to refer persons to the Gardaí for failure to furnish a Certificate of Monetary Donations or bank statement by the appropriate statutory deadline. The Standards Commission is of the view that it does not seem reasonable that a person who opened a political donations account but who failed to furnish the necessary supporting documentation to the Standards Commission, should be prosecuted, whereas a person who failed to open a political donations account in the first place is not liable to prosecution under the Electoral Acts. The Standards Commission considers it imperative that an offence be provided for failure to open a political donations account when required to do so.
To ensure a level playing field between candidates and a degree of transparency, the use of public funds for electoral purposes should form part of the electoral code rather than other legislation which patently has quite a separate purpose. This would involve a consequential repeal of the provisions dealing with the provision of services and facilities following a dissolution of Dáil Éireann by the Houses of the Oireachtas Commission (Section 4(4A) of the Houses of the Oireachtas Commission Act 2003 (as inserted by the Act of 2006)).
Section 59 of the Electoral Act 1992 provides for the appointment of "election agents" to assist the candidate generally in relation to a Dáil general election and for the appointment of deputy agents to be present on the candidate's behalf for the counting of votes and for other specific purposes set out in the 1992 Act. This has caused confusion as some candidates notified these "agents" as their election agent for the general election even though these persons had little or no function or knowledge in relation to controlling expenses incurred on the candidate's behalf at the election. The Standards Commission recommends that the term "election agent" in the 1997 Act, as amended, should be amended to either "election spending accounting officer" or "election spending agent".
Notification of a change of election agent must be routed through the Returning Officer for the constituency. This causes an unnecessary level of bureaucracy for all concerned and can delay the Standards Commission in finalising Election Expenses Statements which have not been completed by the notified election agent. The Standards Commission considers that it would be preferable if candidates were required to notify the Standards Commission directly of the appointment or change of an election agent.
The exclusion of items such as refreshments for volunteer campaign workers and candidates' petrol costs from the definition of election expenses creates real difficulties for some non-party candidates and for candidates of the smaller political parties. These items represent real costs for which these candidates cannot be reimbursed should they qualify for a reimbursement and their total election expenses are less than €8,700. The Standards Commission ought to be allowed to exercise some discretion and include such items (if properly receipted) in the total election expenses which may be reimbursed to these candidates.
The Standards Commission has also encountered a difficulty in supervising the provisions of section 31(10) of the 1997 Act insofar as these provisions refer to the publication of advertisements which directly or indirectly promote or oppose candidates or political parties. The provisions of section 31(7) of the 1997 Act which are relevant to "other persons" placing such advertisements refer to incurring election expenses and include the term "seeking to influence the outcome of an election". The Standards Commission is conscious that this ambiguity in the 1997 Act could be used as a defence or construed against the prosecution of an offence under section 43(4) of the 1997 Act (for failure to comply with section 31(10) of the 1997 Act). The Standards Commission considers, therefore, that some consistency might be brought to this part of the 1997 Act by including the term "seeking to influence the outcome of an election" as part of the provisions of section 31(10) of the 1997 Act.

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