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

Chapter 6 The Electoral (Amendment) Act, 2001

The Electoral (Amendment) Act, 2001 (the 2001 Act) introduced significant amendments to the original legislation including new provisions concerning political donations and election spending. In relation to the latter, the main features of the 2001 Act were as follows:

1. It increased the spending limits of candidates at Dáil elections from €18,351.52, €22,283.90 and €26,217.55, in relation to three, four and five seat constituencies, to €25,394.76, €31,743.45 and €38,092.14, respectively.
2. In paragraph 1 of the Schedule it provided a definitive list of items which would be regarded as election expenses.
3. In paragraph 2 of the Schedule it amended the list of items which would not be regarded as election expenses.

One such amendment caused concern to the former Public Offices Commission (the Commission). Paragraph 2(g) of the Schedule provided that any sum disbursed by an individual out of the individual's own resources for any minor expenses (not exceeding €126.97 in any one payment), lawfully incurred in relation to the election, would not be an election expense if the sum was not repaid to the person.

The original legislation had provided that minor expenses lawfully incurred and not reimbursed to a person would not be regarded as election expenses. It did not, however, define a minor expense. The Commission, in its guidelines for the Tipperary South Dáil bye-election of 2001, advised that the total amount of minor expenses incurred in relation to the bye-election (i.e. by the election agent and the national agent) should not exceed £100 (€126.97).

The Commission considered that the definition of a minor expense contained in the 2001 Act created a potential loophole which could be exploited in order to circumvent the expenditure limits. The Commission examined the matter and concluded that the only persons who could "lawfully" incur expenditure at an election were the election agent of a candidate, the national agent of a political party, a person authorised by either agent or a person who had registered with the Commission for the purposes of incurring expenditure at the election. Election agents and national agents would, therefore, have to be aware at all times of persons incurring minor expenses.

The Standards Commission concurred with the position adopted by the former Commission. In its guidelines for the 2002 Dáil general election the position regarding minor expenses was outlined. Election agents and national agents were advised that they would be required to maintain an account of any minor expenses where it was not intended that such expenses would be included in the Election Expenses Statement. The Standards Commission considered that unless such an arrangement was in place it would be impossible to adjudicate in cases where complaints might be made about failure to include particular items of expenditure in the Election Expenses Statement. Where applicable, details of any minor expenses incurred have been submitted with the Election Expenses Statement and are included in the appropriate tables in the Appendices to this report.

4 The 2001 Amendment Act also addressed the issue of use of Oireachtas facilities for electoral purposes. The original legislation (section 31(b)(v) by reference to section 22(2)(b)(ii)) had provided that "... any payment, service or facility provided to a person out of public funds..... by virtue of the person being a member of either House of the Oireachtas ..." would not be regarded as an election expense incurred on the person's behalf.

The former Commission had raised this issue in its Annual Report for 2000. In the report it referred to the fact that prospective candidates at the Dáil general election, who were not members of the Dáil or Seanad, had expressed concern at the prospect of outgoing members of the Houses having an unfair advantage if the latter were allowed to use free envelopes and other Oireachtas facilities for election purposes, without having to account for the cost of this use as part of their election spending.

The Commission had also referred to the use by candidates of "free" Oireachtas envelopes at the Tipperary South bye-election of 2000. The Commission's understanding was that the Oireachtas (Allowances to Members) Acts, 1962 confined the use of Oireachtas envelopes to correspondence arising in the discharge of a member's parliamentary duties. It had, therefore, advised in its guidelines for the bye-election that Oireachtas envelopes should not be used at elections and, if used by a candidate, or on behalf of a candidate, the cost of such use would be regarded as an election expense incurred by the candidate. The propriety, or otherwise, of using Oireachtas facilities in connection with an election was, of course, a matter for the Houses as laid down in statute and was not within the remit of the Commission.

Paragraph 1 of the Schedule to the 2001 Act listed, as set out in Chapter 3, those items which would be regarded as election expenses. Paragraph 2 of the Schedule specifically provided that:

"For the avoidance of doubt, nothing in paragraph 1 of the Schedule (i.e. the list of election expenses) extends to .....

(a) any of the matters referred to in subparagraphs (i) to (v) of section 22(2)(b) .... [see above]

(c) any expenses in respect of any property, services or facilities so far as those expenses fall to be met out of public funds;"

In addition, also in 2001, Part 6 of the Oireachtas (Allowances to Members) Act, 1962 was amended by deleting the reference "arising out of a member's parliamentary duties" in relation to the use of Oireachtas telephone and postal facilities.

The combined effect of these amendments was to specifically exclude the cost of use of Oireachtas facilities from being reckoned as election expenditure.

The provisions, outlined on the previous page, of the 2001 Act formed the basis of the legal action taken by Mr. Desmond Kelly against the Minister for the Environment and Local Government, Ireland and the Attorney General (the Kelly case).

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