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

Chapter 14 Receipt of Election Expenses Statements

Section 36(2) of the Electoral Acts provides that a statement of Election Expenses shall be in the form directed by the Standards Commission. The Election Expenses Statement form which the Standards Commission intended would be used by election agents had been prepared in advance of the general election and a sample copy was included as an Appendix in the published guidelines. The form which was subsequently produced for completion by the elections agents (GE/02/EES/EA) differed from the sample to the extent that provision was made to take account of amendments to the legislation and the court judgment in the Kelly case.

The Standards Commission also produced Election Expenses Statement forms for use by the national agents of political parties. The form in each case was tailored to include the name, and other details, of every candidate of the party who had contested the election.

Arising out of the court judgment in the Kelly case, the Election Expenses Statement forms, for both election agents and national agents, required that election expenses, where the costs were met out of public funds, would be accounted for separately. The purpose of this was twofold:

(i) it would allow the Standards Commission to provide details of the total amount of election expenses incurred on behalf of a candidate or a political party where the costs were met out of public funds, and

(ii) it would enable the Standards Commission to identify, in the event of an overspend, whether the overspend had occurred as a result of the election agent or national agent having to account for election expenses where the costs were met out of public funds.

An Election Expenses Statement Form was issued by registered post to each election agent and national agent on 13 June 2002. In the explanatory note which accompanied the Election Expenses Statement form, election agents and national agents were advised that, as a result of the court judgement in the Kelly case, they would have to account for any election expenses incurred during the election period where the costs were met out of public funds.

As already stated earlier in this report, to facilitate the hearing of the State's appeal to the Supreme Court in the Kelly case, the Electoral (Amendment) (No. 2) Act, 2002 (the 2002 (No. 2) Act) was enacted. The 2002 (No. 2) Act provided that 31 October 2002, or 21 days following the date of the Supreme Court judgment, whichever was the later, would be the date by which Election Expenses Statements would require to be furnished to the Standards Commission. On 29th June 2002, the Standards Commission wrote to election agents and national agents informing them of the State's appeal and the revised date for receipt of Election Expenses Statements. Election agents and national agents were advised that the outcome of the State's appeal would determine whether, and to what extent, they would have to account for election expenses where the costs were met out of public funds. The Standards Commission also advised election agents and national agents that, if they were not affected by the court action, they should submit their Election Expenses Statement as soon as possible. One hundred and fifty seven (157) Election Expenses Statements were received in the following months.

A copy of a letter and a schedule, which had been circulated by the Members Services Office of the Houses of the Oireachtas to outgoing members after the High Court judgement in the Kelly case, was enclosed with the letter issued by the Standards Commission on 29 June 2002. The schedule set out the values of various Oireachtas facilities which may have been availed of by outgoing members for election purposes during the election period. It was considered by the Standards Commission to be an appropriate guide for election agents in determining the values of any such facilities. The Standards Commission took the view that, for the purpose of calculating the costs as election expenses, it was a matter for election agents, in consultation with the candidates concerned and any other relevant parties, to determine the extent to which such facilities were used for election purposes during the election period.

On 29 November 2002 the Supreme Court affirmed the High Court judgment and further decided that it would not declare that the judgment should have prospective effect. This meant that any expenses incurred during the election period where the costs were met out of public funds would have to be included in the Election Expenses Statements furnished by election agents and national agents. On 3 December 2002 the Standards Commission wrote to those election agents and national agents who had not yet furnished an Election Expenses Statement informing them of the position and advising them of the revised date (20 December 2002) for furnishing their Election Expenses Statements.

As stated in Chapter 7 above, the Standards Commission had decided:

(i) that it would not be appropriate for it to refer a file to the DPP where, specifically as a result of the judgement, an overspend occurred at the general election, and

(ii) that if an overspend occurred specifically as a result of the judgement, it would not recommend to the Minister for Finance that the amount of the overspend be deducted from the reimbursement of election expenses payable to the candidate or, where an overspend was incurred by the national agent of a political party, from the Exchequer funding payable to the party.

An Election Expenses Statement was required in respect of each of the four hundred and sixty three (463) candidates who contested the general election and the ten (10) political parties which had candidates contesting the election. A number of election agents acted for more than one candidate. In such cases, the election agent was required to furnish a separate Election Expenses Statement in respect of each candidate. As stated above, the statutory date for receipt of Election Expenses Statements was put back from 12 July 2002 to 20 December 2002.

Election Agents - Election Expenses Statements:

Three hundred and ninety (390) Election Expenses Statements were received from election agents of candidates within the statutory deadline of 20 December 2002.

As of 8 January 2003, forty nine (49) Election Expenses Statements had not been received. On that date the Standards Commission wrote to the agents concerned advising them that it is an offence to fail to furnish an Election Expenses Statement by the statutory deadline.

By 22 January 2003, there were thirty five (35) Election Expenses Statements outstanding. The Standards Commission sent a further reminder on that date to the agents concerned.

On 11 February 2003, there were twenty (20) Election Expenses Statements still outstanding. A final reminder issued on that date to the agents concerned. The agents were advised that if the Election Expenses Statement was not received within seven days, the Standards Commission would consider referring the matter to the DPP.

On 11 March 2003, the Standards Commission wrote to the Garda authorities requesting that they investigate the failure of Mr. Mick Dunphy, Carrigrove Estate, Ballynaneashagh, Waterford, to furnish the Election Expenses Statement required under the Electoral Acts. Mr. Dunphy acted as election agent for the Workers Party candidate, Mr. John Halligan, in the Waterford constituency. (The Standards Commission has previously been advised by the Office of the DPP to deal directly with the Garda authorities in relation to such alleged offences under the Electoral Acts.) The Standards Commission understands that the Gardaí are investigating the matter. On the date of going to print with this report, an Election Expenses Statement had not been received from Mr. Dunphy.

Election Expenses Statements in respect of four hundred and sixty two (462) candidates were received. A substantial number of these were, however, incorrectly completed and were returned by the Standards Commission to the agents concerned. A very considerable amount of reworking of the material received has been required on the part of the Standards Commission. It is regrettable that this, coupled with great difficulty experienced by the Standards Commission in procuring amended Election Expenses Statements from some election agents, has delayed the preparation of this report, the laying of the Election Expenses Statements before the Houses of the Oireachtas and the material being made available for public inspection and copying.

It is evident to the Standards Commission that many election agents were not fully aware of the nature of the duties which they agreed to undertake, including the fact that legal responsibility for a breach of the expenditure limits rested with them. However, having regard to the major effort made by the Standards Commission to issue guidelines and otherwise brief election agents on the requirements of the legislation, including assisting them in completing the necessary documentation, it is difficult to avoid the conclusion that the poor quality of Election Expenses Statements received in so many cases was due to lack of care on the part of agents as well as, perhaps, an element of disregard for either the requirements of the legislation or the mandate of the Standards Commission, or both.

The Standards Commission is still pursuing a very small number of election agents who have yet to furnish a correctly completed Election Expenses Statement. In the interests of publishing this report and ensuring that details of election expenditure are put into the public domain, the Standards Commission is including the original, albeit incorrect, information provided by these election agents. The Standards Commission is satisfied that there is no prospect of any of these agents having overspent at the election and none of the candidates concerned qualify for a reimbursement of election expenses.

National Agents - Election Expenses Statements:

Six of the Election Expenses Statements furnished by the national agents were received within the statutory deadline of 20 December 2002. A further two Election Expenses Statements were received shortly afterwards. On 15 January 2003, the Standards Commission wrote to the national agents of two political parties drawing their attention to the fact that an Election Expenses Statement had not been received and advising them that it is an offence to fail to furnish an Election Expenses Statement by the statutory deadline. On 27 January 2003 the Standards Commission wrote again to one national agent regarding his Election Expenses Statement which was still outstanding. A final reminder issued on 18 February 2003 to that national agent advising him that if an Election Expenses Statement was not received within seven days, the Standards Commission would consider referring the matter to the DPP. The Election Expenses Statement was subsequently received on 25 February 2003.

Details of expenditure incurred on behalf of individual candidates and political parties are contained in the Appendices to this report.

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