Report re spending at Dáil General Election of 2002 (Text)

Chapter 2 Relevant sections of the legislation

Part V of the Electoral Acts provides a framework for spending on behalf of political parties and candidates at Dáil elections. The provisions which are relevant to the supervisory role of the Standards Commission are set out below.

a) Definition of Election Expenditure:

Section 31(1) of the Electoral Acts, by reference to paragraph 1 of the Schedule to the Electoral Acts, provides a definition of what constitutes election expenditure (see Chapter 3 below).

Section 31(2) of the Electoral Acts provides that a donation of property, goods or services, which is received free or below cost, and is used at the election during the election period, is an election expense which must be accounted for at its full commercial price, subject to an allowance for any normal or general discount.

Paragraph 2 of the Schedule to the Electoral Acts provides a list of items which are not regarded as election expenses (see Chapter 4 below).

b) Appointment of agents:

Each political party with candidates contesting a Dáil general election is required under section 28(1) the Electoral Acts to appoint a national agent for the purpose of incurring expenditure on the party's behalf at the election. The party must notify the Standards Commission of the name and office address of the national agent. The Standards Commission publishes details of the national agents appointed by each political party in Iris Oifigiúil.

Each candidate at the general election is required under section 28(2) of the Electoral Acts to appoint an election agent for the purpose of incurring expenditure on the candidate's behalf at the election. A candidate may act as his / her own election agent. In such circumstances, the candidate will be subject to the provisions of the legislation both as a candidate and as an election agent. The returning officer for each constituency is required under section 28(6)(b) to notify the Standards Commission of the names and addresses of the candidates standing for election in the constituency together with details of the election agents appointed by those candidates.

Pursuant to section 28(4) of the Electoral Acts a candidate or a political party may revoke the appointment of an election agent or a national agent and, in accordance with section 28(5) of the Electoral Acts, appoint another person to act as election agent or as national agent.

In accordance with section 31(5) of the Electoral Acts, election agents and national agents may authorise (within specified financial limits) other persons to incur expenditure on their behalf at the general election. Election agents and national agents must account for expenditure incurred by such authorised persons.

c) Spending limits for the Dáil general election:

Section 32(1)(a) of the Electoral Acts provides that the spending limits at a Dáil general election are:

• €25,394.76 per candidate in a 3 seat constituency
• €31,743.45 per candidate in a 4 seat constituency
• €38,092.14 per candidate in a 5 seat constituency

In accordance with section 32(1)(b) of the Electoral Acts, a candidate of a political party may assign part, or all, of his / her expenditure limit to a political party for spending by the party's national agent. The amount assigned to the party must be agreed in writing between the party and the candidate. It should be noted that the legislation is not specific in regard to when this assignment should be made. It is assumed that the agreed amount would be assigned before the election.

The total amount available to the national agent of a political party to spend at the election is the sum of the amounts assigned by each of the party's candidates to the party (section 32(2) of the Electoral Acts). Whatever amount is assigned to the party by a candidate is not available for spending by the candidate's election agent. Total expenditure in respect of a candidate by both the candidate's election agent and the party's national agent may not exceed the constituency spending limit applying to the candidate.

d) Election Expenses Statements:

The national agent of a political party, the election agent of a candidate and any person incurring election expenses pursuant to section 31(7), referred to below, is required under section 36 of the Electoral Acts to furnish an Election Expenses Statement to the Standards Commission. The Election Expenses Statement must normally be provided within 56 days after polling day at the election.

The Election Expenses Statement must show all election expenses incurred by the agent or person at the election. It must include details of items which were provided free of below cost, i.e. benefits-in-kind, as well as details of any claims which are in dispute and details of claims for payment which were not received within 45 days after polling day and must not, therefore, be paid.

Section 31(9) of the Electoral Acts provides that a receipt, invoice or voucher must be provided for every payment of an election expense exceeding €126.97.

Section 36(2) of the Electoral Acts provides that an Election Expenses Statement must be accompanied by a Statutory Declaration stating that, to the best of the agent's knowledge and belief, the Election Expenses Statement is correct in every material respect and that all reasonable action has been taken to ensure its accuracy.

e) Overspending:

In accordance with sections 40(b) and 43(2)(a) of the Electoral Acts an election agent will have overspent at the election if the amount of expenditure incurred by him / her exceeds the amount of the expenditure limit retained by the candidate pursuant to section 32(1)(b) above.

The national agent of a political party will have overspent if the total amount of expenditure incurred by him / her exceeds the total sum assigned to the party by the party's candidates pursuant to section 32(2) above. A national agent will also be deemed to have overspent if the amount of expenditure incurred by him / her on a particular candidate exceeds the amount assigned to the party by that candidate.

The consequences of an overspend by an election agent or a national agent at the election are:

i) it is an offence punishable by a fine of up to €1,269.74 (section 43(2)(a) and 43(5) of the Electoral Acts);

ii) a person can petition the High Court to set aside the result of the election (section 44 of the Electoral Acts);

iii) where the overspend has been incurred by the candidate's election agent the amount of the overspend may be deducted from any reimbursement of election expenses due to the candidate under section 21 of the Electoral Acts (section 40 of the Electoral Acts);

iv) where the overspend has been incurred by the national agent of a political party the amount of the overspend may be deducted from any payment which may be due to the party from the Exchequer under the Electoral Acts (section 40 of the Electoral Acts).

f) Reimbursement of election expenses:

Section 21 of the Electoral Acts provides for the reimbursement of election expenses to qualified candidates. In order to qualify, candidates at a Dáil general election must either:

(i) have been elected, or

(ii) if not elected, have exceeded, at any stage of the counting of votes at the election, one quarter of the quota for the constituency.

The Minister for the Environment and Local Government is required under section 17(4) of the Electoral Acts to provide to the Standards Commission and the Minister for Finance, as soon as may be after the result in each constituency is announced, details of those candidates elected or otherwise qualified for a reimbursement of their election expenses.

The maximum amount which may be reimbursed to a qualified candidate is the lesser of €6,348.69 or the actual expenses incurred on the candidate. Expenses incurred by a political party on a qualified candidate in his / her constituency are reckonable under section 32(4) of the Electoral Acts for the purposes of calculating the amount which may be reimbursed to the candidate. In order to obtain payment a candidate must apply to the Standards Commission for the amount of the reimbursement.

g) Responsibilities of the Standards Commission with regard to Part V of the Electoral Acts:

Section 4(1) of the Electoral Acts requires the Standards Commission to consider every Election Expenses Statement furnished to it and, where it considers it appropriate to do so, to furnish a report in writing to the Ceann Comhairle on any matter arising in relation to such statements. The Standards Commission considered, that as a matter of public record, it was appropriate to furnish such a report. In accordance with section 4(5) of the Electoral Acts all such reports furnished by the Standards Commission must be laid before the Houses of the Oireachtas.

Where, following consideration of an Election Expenses Statement, the Standards Commission considers that there may be a minor error or omission, it may, pursuant to section 4(2) of the Electoral Acts, notify the person who furnished the statement of the error or omission and afford him / her 14 days to rectify the error or make good the omission.

Where, following consideration of an Election Expenses Statement, the Standards Commission considers that a contravention of the legislation may have occurred, it is required under Section 4(3) of the Electoral Act 1997 to notify the person who furnished the statement of the possible contravention and afford him / her 14 days to furnish any comments he / she may have. The Standards Commission must consider any comments provided by the person. If, having considered such comments, the Standards Commission continues to be of the opinion that a contravention of the legislation may have occurred, it must furnish a report on the matter, together with any relevant documentation, to the Director of Public Prosecutions.

Section 4(4) of the Electoral Acts provides that the Standards Commission may make such inquiries as it considers appropriate and may require any person to furnish any information, document or thing which the Standards Commission may require for the purposes of carrying out its duties under the Electoral Acts.

Sections 4(6) and 4(7) of the Electoral Acts provide that the Standards Commission may publish guidelines or give advice to any person to whom a provision of the Electoral Acts applies. In accordance with section 4(11) of the Electoral Acts a person must act in compliance with the advice given or guidelines published, unless by so doing he / she would be contravening another provision of the Electoral Acts.

Section 21(d) of the Electoral Acts provides that the Standards Commission must certify to the Minister for Finance that a reimbursement of election expenses may be paid and must provide details to the Minister of the amount to be reimbursed.

The Standards Commission is required under section 28(6)(a) of the Electoral Acts to publish, in Iris Oifigiúil, details of the national agents appointed by each political party.

The Standards Commission is required under section 37(1) of the Electoral Acts to lay a copy of each Election Expenses Statement received by it before the Houses of the Oireachtas.

In accordance with section 73 of the Electoral Acts the Election Expenses Statements received by the Standards Commission, together with any relevant invoices or receipts, must be retained at its office for a period of 3 years and be made available to the public for inspection and copying.

h) Other relevant provisions

Section 31(6) of the Electoral Acts provides that where election expenses are incurred at a Dáil election by a body which -

i) was established by or on behalf of a political party or candidate for the purposes of incurring election expenses or making payments in respect of election expenses, or

ii) is a member of or is a branch or subsidiary organisation of a political party, or

iii) is effectively controlled by a political party or candidate or is or appears to be so connected with or associated with a political party or candidate that a reasonable person would believe that it is controlled or substantially influenced by that political party or candidate,

the expenses will be deemed to have been incurred on behalf of the candidate or party concerned and must be accounted for by the relevant election agent or national agent.

A person (including a "third party") who intends incurring expenditure at a Dáil general election and who is not the national agent of a political party, the election agent of a candidate or a person authorised by either agent to incur election expenses, must, pursuant to section 31(7) of the Electoral Acts, notify the Standards Commission of the proposed expenditure and provide details of the person proposing to incur the expenditure.

A "third party" is defined under section 22(2)(aa) of the Electoral Acts as a person, other than a registered political party or a candidate at an election who receives a contribution for political purposes which exceeds €126.97 in value. As soon as may be after the receipt by it of a donation valued in excess of €126.97 a third party is required under section 23(c) of the Electoral Acts to register with the Standards Commission.

Section 31(10) of the Electoral Acts provides that the publisher of a newspaper, magazine or other periodical publication shall not publish any advertisement or notice in relation to the general election purporting to promote or oppose, directly or indirectly, the interests of a political party or a candidate at the election, unless requested to do so by one of the following people:

• the national agent of a political party, or a person authorised in writing by such agent.
• a candidate at the election, a candidate's election agent or a person authorised in writing by such candidate or agent.
• a person who produces to the publisher a certificate from the Standards Commission confirming that the person has complied with section 31(7) of the Electoral Acts.

Section 34 of the Electoral Acts provides that election expenses incurred at a Dáil general election may not be paid if a claim for payment has not been received by the relevant agent within 45 days of the date of the election. The election expense must, however, be accounted for in the Election Expenses Statement.

Section 35 of the Electoral Acts provides for the resolution of disputes relating to claims for payment of election expenses which were received within the 45 day period.

i) Offences and penalties:

The following offences and penalties are provided for in section 43 of the Electoral Acts:

If a person who is not authorised to do so incurs expenditure or makes a payment in relation to the election, he or she, on conviction, can be fined up to €1,269.74.

The penalty if an election agent or national agent is found guilty of the offence of breaching the expenditure limits is a fine of up to €1,269.74.

Payment of claims by an election agent or national agent which were received more than 45 days after polling day can result in a fine of up to €1,269.74.

Failure by an election agent, a national agent or other person (notified to the Standards Commission in accordance with section 31(7)) to furnish an Election Expenses Statement and Statutory Declaration to the Standards Commission by the statutory deadline can result in a fine of up to €1,269.74 and an on-going fine of up to €126.97 per day for each day, after a conviction, on which the Statement and Declaration are still outstanding.

If an election agent, a national agent or other person (notified to the Standards Commission in accordance with section 31(7)) knowingly furnishes a false or misleading Election Expenses Statement to the Standards Commission the penalty is a fine of up to €25,394.76 and / or up to 3 years imprisonment.

The penalty in the case of a publisher of a newspaper, etc., who is found guilty of publishing any advertisement or notice in relation to the general election in contravention of section 31(10) of the Electoral Acts, is a fine of up to €1,269.74.

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