13/12/07 - Report on disclosure of donations and election expenses at Dáil general election of 2007

2.1 - Legal Requirements

(i) Definition of a donation to a candidate at a Dáil election

Section 22(2)(a) of the Act provides that a donation to a candidate at a Dáil general election means any contribution given for political purposes by any person, whether or not the person is a member of a political party. A person includes an individual, a body corporate (e.g. a public or private company) or an unincorporated body of persons (e.g., a political party, a partnership, a residents association, etc.) A body corporate and any of its subsidiaries is deemed to be the same person for the purposes of the Act.

Section 22(2)(aa) of the Act specifies that, in relation to a candidate at a Dáil general election, political purposes means:

• to promote or oppose, directly or indirectly, the election of a candidate;
• to solicit votes for or against a candidate;
• to present the policies or a particular policy of a candidate or the views of a candidate on any matter connected with the election;
• to present the comments of a candidate with regard to a policy or policies of a political party or a political group or of another candidate at the election;
• to otherwise influence the outcome of the election

A donation to a candidate at a Dáil general election includes all or any of the following:

• a donation of money, property or goods;
• the free use of property, goods or services;
• the difference between the commercial price and the (lower) price charged for the purchase, acquisition or use of property, goods or services; (This may include a loan provided to a candidate by a financial institution at terms and conditions which are more favourable than that provided by the financial institution to other individuals. It may also include a loan provided by a person other than a financial institution where the interest charged is less than the lowest rate available from a financial institution);
• the net value of a contribution made to a fund-raising event organised for the purpose of raising funds for a candidate. Where a fund-raising event is organised by a candidate's political party to raise funds for the party, contributions to the event are considered to be a donation to the party, even if the funds are subsequently used to support the candidate. However, where an event is organised by a party for the purposes of raising funds for a candidate, the party may be regarded as an intermediary accepting donations on the candidate's behalf (see below) and the donations regarded as having been made to the candidate.

Section 22(2)(c) of the Act provides that a donation made to a candidate at a Dáil general election through an intermediary is deemed to be a donation made to the candidate. Therefore, a fund-raising committee (e.g. "Friends of xxx") is regarded as an intermediary accepting donations on a candidate's behalf. If, however, the funds are retained by the fund raising group and are not passed on to the candidate, the group is regarded as a third party and must register as such with the Standards Commission (see chapter 5).

Section 22(2)(c) also provides that where a donation made to a candidate is passed on by a candidate to his/her political party (whether party headquarters or a local branch) and he/she receives a written acknowledgement of the donation from the party, the donation is deemed to be a donation to the political party and not to the candidate.

Section 22(2)(d) of the Act provides that donations from the same person must be aggregated and treated as a single donation for disclosure purposes and for the purposes of observing the maximum acceptance limit for donations (see 2.1(iv) below).

There are a number of items provided for in section 22(2)(b) of the Act which feature during a Dáil general election and which are not regarded as a donation to a candidate including:

• The free post service provided by An Post to candidates.
• Any payment, service or facility provided to a candidate out of public funds by virtue of the candidate being a TD, Senator, MEP or the holder of another elective or public office (e.g. member of a local authority). The judgment of the High Court and Supreme Court in the Desmond Kelly case concerning this particular provision applies only in relation to the accounting for the use of such facilities as election expenses. The judgment did not alter the provisions of the Act with regard to the use of such facilities not being regarded as a donation. It is important to note, however, that this particular provision applies only where the candidate, by virtue of his/her position or office, is entitled to use the services/facilities provided. For instance, if a candidate who is not a Member of the Houses of the Oireachtas is provided with the free use of Oireachtas facilities (e.g., envelopes, telephones) this is regarded as a donation to the candidate from the Member who has provided the facilities.
• A free service provided by an individual, including use of the individual's motor vehicle, private telephone, etc., where the service provided is not part of the individual's work or business. It should be noted that this does not apply to a free service (including the use of a motor vehicle) which is provided by a company or business.
• A service provided by an employee of a political party, including use of the individual's motor vehicle, where the employee's remuneration is paid out of party resources or out of public funds and where the employee is not in receipt of any reward or benefit in kind other than his or her normal remuneration (including recoupment of expenses) for that service.
• Expenses incurred or payments made by a political party on behalf of a candidate. It is important to note that money given directly to a candidate by a political party is regarded as a donation to a candidate. Election expenses incurred or payments made by a support group, other than a registered political party, on a candidate's behalf are also regarded as donations to a candidate. In each case the contributions are subject to the disclosure and maximum acceptance limits applying to candidates.

(ii) Disclosure of Donations

Section 24(2)(a) of the Act provides that each unsuccessful candidate at the Dáil general election must furnish a Donation Statement to the Standards Commission, within 56 days of polling day. The Donation Statement shall be in a form directed by the Standards Commission and must be accompanied by a Statutory Declaration. The Statutory Declaration must be witnessed by either a practising Solicitor, a Commissioner for Oaths, a Peace Commissioner or a Notary Public.

Only donations with a value of more than €634.87 are required to be disclosed. If no such donation was received, the candidate furnishes a "nil" return. Where a donation in excess of €634.87 is received, the value and nature of each donation together with the name, a description and the postal address of the donor must be disclosed.

Successful candidates at the election are required, as members of Dáil Éireann, to furnish to the Standards Commission, by 31 January each year, an annual Donation Statement and accompanying documentation. The Donation Statements furnished to the Standards Commission in respect of 2007 by members of Dáil Éireann must include details of any donations received by them during 2007 in relation to the Dáil general election, and must be furnished to the Standards Commission by 31 January 2008.

(iii) Opening and maintenance of political donations accounts

A candidate at a Dáil general election who receives a monetary donation the value of which exceeds €126.97, must open and maintain a political donations account in a financial institution in the State. The candidate must lodge the initial donation and any further monetary donations, of whatever value, received by him/her to this account.

A candidate who opens a political donations account or who already holds a political donations account must furnish a Certificate of Monetary Donations (CMD) when furnishing his/her Donation Statement. On the CMD the candidate certifies that all monetary donations were lodged to the account and all withdrawals from the account were used for political purposes. The Certificate must be signed by the candidate and is accompanied by a separate Statutory Declaration.

The CMD must also be accompanied by a statement provided by the financial institution where the account is held (referred to hereafter as a "bank statement"). The bank statement must specify the transactions that have taken place in relation to the account during the period beginning on the date of opening of the account and ending on polling day at the election. Where candidates already held a political donations account it was not necessary for them to open a separate account specifically for the general election. Such candidates were also only required to furnish a bank statement in respect of the period 1 January 2007 to polling day.

(iv) Prohibited Donations

Anonymous donations

A candidate at a Dáil general election may not accept an anonymous donation exceeding a value of €126.97. For a donation in excess of €126.97 to be accepted the candidate must know or be able to establish the name and address of the donor. If a prohibited anonymous donation is received by a candidate, the candidate must, within fourteen days of its receipt, notify and remit the donation (or its value) to the Standards Commission.

Foreign donations

A foreign donation is a donation, of whatever value, given by an individual (other than an Irish citizen) who resides outside the island of Ireland or a donation given by a body corporate or unincorporated body of persons which does not keep an office in the island of Ireland from which the carrying on of one or more of its principal activities is directed. A candidate at a Dáil general election must not accept a foreign donation.

If a foreign donation is received by a candidate it must, within 14 days of its receipt, be notified and remitted to the Standards Commission. As an alternative, the candidate may return the donation to the donor. If the donation is returned, the candidate must keep a written record of that return for the purpose of its being furnished to the Standards Commission, if required.

Donations in excess of the maximum prescribed limit

The maximum value of donation(s) which a candidate at the Dáil general election may accept from the same person in the same calendar year is €2,539.48. It should be noted that this maximum limit also applies to monetary donations received by a candidate from his/her political party. The maximum acceptance limit does not apply, however, to a donation of the use of an office to a candidate. (Where more than one office is donated, the candidate must nominate whichever office the maximum acceptance limit will not apply.)

Where a donation in excess of the maximum prescribed limit is received the candidate must notify and remit the excess amount to the Standards Commission within 14 days of its receipt. As an alternative, the candidate may return the excess amount to the donor and keep a written record of that return for the purpose of its being furnished to the Standards Commission, if required.

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