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

2.4 - Consideration of Certificates of Monetary Donations and Bank Statements

Despite the fact that the requirement to open a political donations account has been in effect since 1 January 2002 and was explained in great detail in the Standards Commission's Guidelines for the Dáil general election, a number of candidates failed to comply with the requirements of the Act either by

• failing to open a political donations account,
• having opened a political donations account or operated an existing political donations account failed to lodge monetary donations to the account,
• lodging monetary donations to and making payments for political purposes from an existing personal account
• using the local party organisation's account as their political donations account and providing a CMD / Bank Statement in respect of this account. (A party's political donations account should not be used by a candidate as his/her political donations account unless the candidate is passing all monetary donations to the party in which case the donations are regarded as donations to the party and not to the candidate).
• using a credit union account as a political donations account. A credit union is not included in the definition of a "financial institution" contained in the Act.

While it is an offence to fail to furnish, when required, a Certificate of Monetary Donations and Statutory Declaration or a statement from a financial institution, or to knowingly furnish any one of these documents which is false or misleading in a material respect, there is no offence or penalty for failing to open a political donations account in the first place. This is an anomaly which the Standards Commission has referred to in previous reports on the disclosure of donations and in the review of legislation document provided to the Minister for the Environment, Heritage and Local Government in December 2003, and which has yet to be addressed.

The main reason given by unsuccessful candidates for failing to open a political donations account (normally non-party candidates or candidates from the smaller political parties) is that they were not aware of the requirement to do so. Other candidates claimed to have received a small number of donations and to have used these donations immediately to pay for election expenses. In view of the fact that there is no specific offence or penalty in the legislation for failing to open a political donations account, it was not possible for the Standards Commission to take any further action in relation to these candidates.

In a number of cases the Standards Commission had difficulty in obtaining Certificates of Monetary Donations or bank statements from unsuccessful candidates who had indicated that they had opened political donations accounts. Following protracted correspondence and telephone contact, some such Certificates/statements were eventually received.

The Standards Commission is still seeking a bank statement from one candidate (Councillor Jim McGarry, Labour Party, Sligo / North Leitrim). If the bank statement is not received, the Standards Commission will have to consider whether to refer Cllr. McGarry to the DPP for possible prosecution of the offence of failing to furnish a bank statement by the statutory deadline of 19 July 2007. The Standards Commission has already pointed out in previous reports that it is of the view that it does not seem reasonable that a person who opened a political donations account but who failed to furnish the necessary supporting documentation to the Standards Commission, should be prosecuted whereas a person who did not open a political donations account in the first place is not liable to prosecution under the Act. In that regard the Standards Commission considers it imperative that an offence be provided for failure to open a political donations account when required to do so.

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