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

Chapter 5 Definition of the election period

Section 31(3) of the Electoral Acts provides that in the case of a Dáil general election, the "election period" is from the date of the dissolution of the Dáil up until polling day. All election expenses incurred by, or on behalf of, a political party or a candidate on property, goods or services which are "for use" at any time during this period must be included in an Election Expenses Statement furnished to the Standards Commission. Section 31(3) further provides that any election expenses incurred before the election period commences on property, goods or services which are "for use" during the election period are also subject to the expenditure limits and must be included in the Election Expenses Statement.

The issue of what constitutes the parameters of "for use" during the election period arose at the Dublin South-Central Dáil bye-election of 27 October, 1999. In relation to that election, it was reported by the former Public Offices Commission (the Commission) that an election agent had exceeded the spending limit. The overspend occurred because of costs incurred on the rental of a campaign office. The rental agreement had entered into force eight days prior to commencement of the election period. The Commission took the view that, because the office was specifically for use at the bye-election, the cost of rent and insurance on the premises from the actual date of renting should be regarded as an election expense. The election agent's position was that only costs incurred in respect of the use of the premises during the election period should apply and, accordingly, that an overspend had not occurred.

As overspending at a Dáil election is an offence, a file was referred by the Commission to the Director of Public Prosecutions (DPP). The DPP found that there was ambiguity in the statute which could be construed against the prosecution. A prosecution was not taken.

Because of the importance it attached to this issue, in the context of determining when election spending actually commences, the Commission engaged in a round of consultations with the DPP, the Minister for the Environment and Local Government and the Minister's Department. It should be pointed out that, even at that early stage, there was evidence that some prospective candidates at the next Dáil general election were already distributing literature which could be regarded as promoting them as candidates at the election. In that regard, the Commission had taken the position that spending on, for example, printed material, which was then being circulated and which identified a person as a candidate at the general election and which sought support for his / her candidacy, should be regarded as election expenditure.

At the request of the Commission, and in the light of correspondence between the Commission and the DPP, the advice of the Attorney General was sought by the Department of the Environment and Local Government. The Minister for the Environment and Local Government subsequently informed the Commission that, having considered the views of the Commission and following consultations with the Attorney General, he did not propose to amend the legislation relating to this matter. In light of this, the Standards Commission decided that, for the purpose of determining what constituted election spending at the Dáil general election, the following would apply:

• expenditure incurred and payments made would only be subject to the limits set down in the legislation if they related to property, goods or services which were actually used during the election period (i.e. from the dissolution of the Dáil up to and including polling day - 25 April to 17 May 2002 in the case of the Dáil general election)). If the property, goods or services were used during this period, the limits would apply regardless of when the expenditure was incurred or the payment made;
• if expenditure was incurred or a payment was made in respect of property, goods or services which were for use during the election period and the property, goods or services, or part thereof, were not actually used during that period, the expenditure or payment relating to the unused property, goods or services would not be subject to the limits and would not require to be accounted for in the Election Expenditure Statement furnished to the Standards Commission after the election;
• if promotional material, including election material, was being circulated by political parties or prospective candidates at any time prior to the dissolution of the 28th Dáil, any expenditure incurred or payment made in relation to same would not be subject to the limits. Similarly, if premises, advertising sites, etc., were booked in relation to the election, any cost incurred or payment made (e.g. rent/insurance) in respect of any period before the dissolution of the 28th Dáil or after polling day would not be subject to the limits;
• in any case where there was ambiguity in the records or where sufficient records to determine the matter had not been held, the Standards Commission would regard the expenditure incurred or payment made as being in respect of the election period.

The above position was adopted by the Standards Commission in recognition of the fact that to do otherwise could seriously disadvantage prospective candidates and political parties who, in light of the original position, might not have engaged in activities where they considered that the costs incurred would be subject to the spending limits. Given the views expressed by the DPP, and the fact that the relevant part of the legislation was not going to be amended, it was clear that had the Standards Commission maintained the original position there would not have been a prosecution for overspending which occurred as a result of costs incurred on property, goods or services to the extent that the costs in question were not in respect of the actual election period. It would have been unreasonable for the Standards Commission to have suggested otherwise.

The Standards Commission wrote to the General Secretaries, or equivalent, of all the registered political parties and to each serving member of the Dáil and Seanad to inform them of the position as outlined above.

Having regard to the foregoing, the position is that the expenditure accounted for by candidates' election agents and by the national agents of political parties in the Election Expenses Statements furnished to the Standards Commission relates only to property, goods, or services actually used during the election period. It is worth repeating that such expenditure was required to be accounted for, and was subject to the spending limits, regardless of when it was incurred.

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