Annual Report 2008

Third Parties

Third Parties - General Correspondence in 2007

A "third party" is defined as any person, other than a political party or a candidate at an election, who accepts, in a particular year, a donation (i.e., a contribution given for political purposes) the value of which exceeds €126.97. A contribution given in support of a campaign at a referendum is regarded as a contribution for political purposes.

On receipt of a donation exceeding €126.97 in value a third party must register with the Standards Commission. Third parties are prohibited from accepting anonymous donations exceeding €126.97 in value and are prohibited from accepting "foreign donations". The maximum donation which a third party may accept from the same person in the same calendar year is €6,348.69. A third party must open and maintain a political donations account if it receives a monetary donation in excess of €126.97. It must furnish certain statutory documentation relating to that account to the Standards Commission; that documentation comprises a bank statement detailing transactions on the political donations account and a certificate of monetary donations confirming that all donations were lodged to the account and that payments from the account were used for political purposes.

Aside from those individuals/organisations which registered as third parties on account of campaigns at the referendum on the Treaty of Lisbon, no other third parties registered with the Standards Commission during 2008.

In early 2008, the Standards Commission wrote to the seven third parties that had been registered with it during 2007 and requested a Certificate of Monetary Donations and bank statement in relation to their political donations accounts. Three third parties provided a bank statement and Certificate of Monetary Donations. The four other third parties confirmed in writing to the Standards Commission that there had been no activity on their political donations account during 2007. Three registered third parties informed the Standards Commission that they would not be operating as a third party during 2008.

Third Parties - Referendum on the Treaty of Lisbon

The Standards Commission received a number of enquiries prior to the referendum campaign as to how the third party provisions of the Electoral Acts would apply at the referendum. The Standards Commission received legal advice that the provisions of the legislation relating to third parties would not apply to individuals or groups from outside the state which did not have a presence in this jurisdiction and who intended to campaign or fund campaigns at the referendum. The Standards Commission was also advised that an individual or group would only be required to register as a third party if a contribution, given for political purposes, was received. Individuals or groups that used their own resources to fund their referendum campaigns, and did not receive a donation, were not required to register as a third party. The Standards Commission informed the Minister for the Environment, Heritage and Local Government of the advice it had received and how it intended to apply the third party provisions of the Electoral Acts at the referendum.

The Standards Commission published a notice in the main national newspapers and other relevant magazines, and produced an explanatory note, explaining the provisions of the legislation as they affect third parties campaigning at the referendum. The Standards Commission contacted a number of individuals and groups who were campaigning at the referendum. All were given a copy of the Standards Commission's explanatory note and were requested to consider if they were required to register as a third party. Eight groups registered as a third party.

The Standards Commission also received legal advice on the use of funding provided to Irish MEPs and political parties by their political groups in the European Parliament. Section 22(2)(b)(ii) of the 1997 Act provides that any payment, service or facility provided to a person out of monies provided by an institution of the European Union by virtue of the person being an MEP or a political group is not regarded as a donation. Political groups are funded by the European Parliament. They make funds available to MEPs or political parties that are members of the group. The Standards Commission was advised that, in accordance with section 22(2)(b)(ii) of the 1997 Act, funding provided to an Irish MEP or political party by their political groups would not be regarded as a donation.

During the referendum campaign, concerns were expressed about the expenditure of certain groups and how this expenditure was being funded. Concerns were also expressed that third parties campaigning at the referendum were not required to disclose details of donations received by them. At the outset of the campaign the Standards Commission clarified that, unlike political parties, elected representatives or candidates at elections, third parties are not required to disclose their donations. The Standards Commission also clarified that information contained on the Certificates of Monetary Donations and bank statements furnished to the Standards Commission by third parties would not be made available for public inspection.

Section 4(4) of the 1997 Act provides that the Standards Commission may make whatever enquiries it considers necessary and can request any document, information or thing from a person for the purposes of carrying out its duties under the Act. The requirements attaching to third parties are set above. The Standards Commission is responsible for ensuring that third parties comply with these requirements.

The Standards Commission wrote to four registered third parties regarding the provision of loans (Libertas, CÓIR, Campaign Against EU Constitution and Irish Alliance for Europe). These groups were selected on the basis that they intended to incur expenditure of €10,000 or above at the referendum. A bona fide loan is not regarded as a donation. A loan, however, provided to a third party by a financial institution or other person at preferential terms and conditions might be regarded as a donation. The Irish Alliance for Europe, CÓIR and Campaign Against EU Constitution informed the Standards Commission that they had not received any loans to finance their referendum campaigns. Libertas had already informed the Standards Commission of a loan provided by Mr Declan Ganley. The letter to Libertas asked whether other loans had been provided to fund the referendum campaign. Following a number of written reminders to Libertas, their solicitors finally provided, on 30 March 2009, a copy of the loan agreement between Libertas and Mr Declan Ganley. The loan agreement would seem to indicate that the loan from Mr Ganley to Libertas is a bona fide loan. The solicitors also confirmed that no other loans were provided to Libertas

The "responsible person" of Libertas, Mr Naoise Nunn, informed the Standards Commission on 30 September 2008 that he had resigned from Libertas with effect from 19 September 2008. In addition to furnishing a Certificate and bank statement in respect of the third party's political donations account, the responsible person must also ensure that any prohibited donations which might be received by the third party are returned to the donor or remitted to the Standards Commission. The Standards Commission wrote, therefore, to Libertas on 3 October 2008 requesting it to provide details of the person who had replaced Mr Nunn as responsible person for Libertas. This information was not provided to the Standards Commission until 30 March 2009.

Following media reports, the Standards Commission decided to make the following other enquiries with Libertas in order to ensure that it complied with its obligations under the Act regarding the non-acceptance of prohibited donations:

a) Employees of Rivada Networks Ltd

It had been suggested that persons employed by Rivada may have been paid by that company while working for Libertas on its referendum campaign. If this was the case it could be regarded as a donation to Libertas from Rivada. If the total value of the services provided exceeded €6,348.69 in any year, Libertas would be required to refund the excess donation to Rivada.

Libertas confirmed, in a letter dated 7 July 2008, that Rivada employees "who worked on the Libertas project did so in their spare time and on a voluntary basis." On 11 September 2008 the Standards Commission asked Libertas to provide further details of the employees who worked on the referendum campaign. On 30 March 2009, solicitors for Libertas informed the Commission that three employees of Rivada Networks worked voluntarily on the Libertas campaign - Naoise Nunn, David Cochrane and Norrie Keane. They were not engaged full-time on the Libertas campaign while working for Rivada. The solicitors confirmed that these people had spent no part of the time they were contracted to work for Rivada Networks on the Lisbon campaign. They may have taken paid leave in accordance with their statutory entitlements but did not take unpaid leave to work on the Lisbon campaign. From 1 May 2008 Mr Nunn and Mr Cochrane were employed by Libertas and ceased working for Rivada. Another person, John McGuirk, was employed by Libertas from 18 March. He had no connection with Rivada.

b) Use of "The Lisbon Treaty: the Readable Version"

The Standards Commission was aware that Libertas had distributed a book - "The Lisbon Treaty: the Readable Version" - as part of its referendum campaign. It had been reported that the book had a certain retail value and that 35,000 copies of the book had been given to Libertas by another organisation, the Foundation for European Democracy. A donation is defined in the Act as a contribution given for political purposes. This includes the free or below cost provision of goods, property or services. If the books were given for the purpose of assisting Libertas in its referendum campaign and if the total value of the books provided to Libertas exceeded €6,348.69 in any year, Libertas would be required to refund the excess donation to the Foundation for European Democracy. The Standards Commission requested Libertas to clarify the position with regard to the use of these books, whether they were provided free or below commercial cost, and queried why the provision of these books should not be regarded as a donation to Libertas.

In a letter dated 7 July 2008, Libertas confirmed that it had received a number of copies of this book from "the EU Democrats". Libertas stated that the books did not contain any political messaging and that they were distributed free of charge. The Standards Commission considered that this response was not entirely relevant in determining whether provision of the books constituted a donation to Libertas. The Standards Commission wrote again to Libertas on 22 August 2008 advising it that if the books were provided free of charge (where a charge normally applies) and were given for the purposes of seeking to influence the outcome of the referendum it would be regarded as a donation to Libertas. Libertas was asked for its further comments as to why the provision of these books should not be regarded as a donation.

Libertas solicitors informed the Standards Commission on 30 March 2009 that the book claims to be a " consolidated reader-friendly Edition of the Treaty on European Union and Treaty on the Functioning of the European Union as amended by the Treaty of Lisbon". They stated that the book is a document prepared by the Foundation for EU Democracy and does not advocate any position on the Lisbon Treaty. The book was not published with a view to sale. Mr Ganley regarded the book as being "neutral" on the issue that was presented to referendum and, as a consequence, was not captured by the definition of "political purposes".

Enquiries were also made with EU Bookshop as to whether the book was ever for sale on eubookshop.com and if so, what the retail price of the book was. A reply was received from Mr Jens Peter Bonde on 1 April 2009. He stated that the book was simply about "the treaty you were voting about and we made it available for everyone. Mr Bonde stated that The Foundation for EU Democracy printed 2,000 copies of the book and distributed them for free to those who asked. Libertas received 1,000 copies for free. He further stated that the Foundation allowed EUBookshop to promote their books. There was no real sale. EU Bookshop have the books for free or for a symbolic amount and finance the posting for the official sales price. Mr Bonde claimed that the books cannot be sold commercially.

The 2008 referendum highlighted significant weaknesses in the provisions of the Electoral Acts concerning third parties. In its Review of the Electoral Acts in 2003 and in its Annual Report for 2005, the Standards Commission suggested that, instead of the acceptance of a donation determining whether an individual or group is required to register as a third party, the focus of these provisions of the legislation should concentrate on the amount spent on a particular campaign by individuals or groups. If that amount exceeded a certain threshold (e.g., €5,000) then individuals/groups might be required to show how their campaign was funded. Limits on the type and amount of donations which could be accepted to fund the campaign would apply.

In January 2009, the Minister for the Environment, Heritage and Local Government requested the Standards Commission to prepare and submit to him a report setting out its experience of operating the third party provisions of the legislation as they applied at recent referendums. This report was furnished to the Minister on 10 March 2009. In addition to setting out its experience in relation to the Treaty of Lisbon, the report also gives a general account of the difficulties which it has encountered in the supervision of these provisions and the concerns which have been expressed by some voluntary and other groups whose activities have been affected by the legislation. It also makes suggestions as to how the provisions of the legislation applying to third parties might be improved. Details of individuals/groups contacted by the Standards Commission in relation to the referendum are provided in the report. The report is available on the website of the Standards Commission.

The Standards Commission welcomes the stated intention of the Taoiseach and the Minister to review the disclosure requirements attaching to third parties. The Standards Commission suggests, however, that this review might encompass all provisions of the Electoral Acts relating to third parties and should take into account previous recommendations made by the Standards Commission in this regard and the recommendations contained in its recent report to the Minister.

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