Annual Report 2008

Summary of other proposed amendments to the Electoral Acts

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.

1. 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 did not open a political donations account in the first place is not liable to prosecution under the Electoral Acts. In that regard the Standards Commission considers it imperative that an offence be provided for failure to open a political donations account when required to do so.
2. 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 Houses of the Oireachtas Commission Act 2006)].
3. 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" should be amended to either "election spending accounting officer" or "election spending agent".
4. 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.
5. The exclusion of items such as refreshments for volunteer campaign workers and candidates' petrol costs from the definition of election expenses can create a difficulty for some non-party candidates or 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 might 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.
6. 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 includes the term "seeking to influence the outcome of an election". The Standards Commission is conscious that this ambiguity in the Act which 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 "seeks to influence the outcome of an election" as part of the provisions of section 31(10) of the 1997 Act.

The Standards Commission has also recommended in its annual report for 2006 and in a report to the Ceann Comhairle in June 2007 (on the annual disclosure of donations by political parties) that political parties should be required to adhere to the recommendations contained in Articles 11, 12 and 13 of the Council of Europe recommendation (see Chapter 3).

The Standards Commission notes that the recent Preliminary Study on the Establishment of an Electoral Commission in Ireland (commissioned by the Department of the Environment, Heritage and Local Government and carried out by the Geary Institute of UCD) suggests that "the proposals which SIPO made in its Review of the Electoral Acts (December 2003) and its report on the Dáil general election and the re-iteration of these recommendations in its most recent Annual Report provide an agenda for reform which our research and consultations strongly suggest ought to be pursued by a new Electoral Commission."

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