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

3.4 - Appointment of candidates' election agents

In accordance with section 28 of the Act each candidate at a Dáil general election is required to appoint an election agent for the purposes of incurring election expenses on his/her behalf. A candidate may revoke the appointment of an election agent or an election agent may resign as a candidate's election agent at any time before or after polling day (but not after an Election Expenses Statement has been furnished). A candidate may act as his/her own election agent.

The candidate's election agent is the only person who can incur election expenses on the candidate's behalf at the election. (A political party's national agent may also incur expenses on a candidate's behalf from the amount assigned to the party by the candidate - see paragraph 3.5). The election agent can authorise other persons, including the candidate, to incur election expenses on his/her behalf. In many cases election agents authorised candidates and/or directors of elections to incur a specified amount of election expenses. The election agent must account for all expenses incurred by such "authorised persons". The fact that all election expenses incurred on a candidate's behalf must be authorised by his/her election agent is a fundamental principle underpinning this part of the Act. It allows the election agent to control election expenditure incurred on the candidate's behalf and to ensure that the spending limit available to the election agent is adhered to.

Section 31(8A) of the Act provides that, where a candidate has incurred election expenses before the appointment of an election agent, he/she must provide details of the expenses incurred to the election agent. It is an offence for the candidate to fail to provide such information to an election agent in sufficient time to allow the election agent to furnish an Election Expenses Statement in accordance with the requirements of section 36 of the Act. During and after the election campaign some election agents informed the Standards Commission that they had experienced difficulties in securing details from candidates of election expenses incurred by them. The Standards Commission advised the election agents to inform the candidates of their legal obligations under section 31(8A) of the Act. On one occasion it was necessary for the Standards Commission to write to a particular candidate regarding the requirements of section 31(8A) and ultimately to refer a file on the matter to the Gardaí/DPP (see paragraph 3.14).

The procedures set out in section 28 of the Act require the Returning Officers for each Dáil constituency to notify the Standards Commission of all candidates contesting the election in the constituency and details of their election agents. Returning Officers are also required to inform the Standards Commission if they are notified by a candidate of a change of election agent. The Standards Commission must accept the information as provided by the Returning Officer and may only accept an Election Expenses Statement which has been completed by the person notified as the candidate's election agent.

At the 2002 general election it was not uncommon for the Standards Commission to receive an Election Expenses Statement which had been completed by someone other than the person notified as the candidate's election agent. While the official nomination papers inform candidates of the requirement to appoint an election agent there is no provision for candidates to include details of their election agents on the nomination papers. Having made enquiries with the Department of the Environment, Heritage and Local Government the Standards Commission was informed that it would not be possible to include the election agents details on the nomination papers. To facilitate the provision of correct election agent details, the Standards Commission decided to produce a form which it issued to each Returning Officer. Returning Officers were requested to ask candidates to complete this form when submitting their nomination papers. Most Returning Officers complied with this request and this ensured that the Standards Commission had a written record of the person notified to the Returning Officer as the candidate's election agent.

The main political parties generally provide the Standards Commission with details of their candidates and election agents in advance of the election. This facilitates the timely provision of guidelines to these candidates and their election agents. However, in the case of candidates of some of the smaller political parties and many of the non-party candidates, the first notification the Standards Commission receives regarding their candidacy, or the appointment of an election agent, is from the Returning Officer. To ensure that its guidelines were circulated as quickly as possible to these candidates and election agents, the Standards Commission wrote to each returning officer on 27 April 2007 asking that he/she fax or e-mail details of each candidate contesting the election in the constituency and their election agents to the Standards Commission as soon as possible after nominations for the election closed (12.00 noon on 8th May 2007). The Standards Commission wishes to thank Returning Officers for complying with its request regarding usage of the above form and the provision of the relevant information in a timely manner.

Despite improvements on the 2002 general election, the Standards Commission continues to have concerns regarding the provisions of section 28 of the Act. In particular the Standards Commission believes that the term "election agent" is causing confusion and needs to be amended in the Act. Section 59 of the Electoral Act 1992 (the 1992 Act) also provides for the appointment of "election agents" to assist the candidate generally in relation to a Dáil general election and for the appointment of deputy agents to be present on the candidate's behalf for the counting of votes and for other specific purposes set out in the 1992 Act. The Standards Commission has found that some candidates associate the term "election agent" as set out in the 1997 Act with these functions and notify such "agents" as their election agent even though these persons have no function in relation to controlling expenses incurred on the candidate's behalf at the election. The Standards Commission may only accept an Election Expenses Statement which has been completed by the person notified to it as the candidate's election agent. When incorrect election agent details are notified to the Returning Officer, the time and expense invested by the Standards Commission and the political parties themselves, in familiarising election agents with the requirements of the legislation is wasted. The Standards Commission has found that it is election agents who are unfamiliar with the requirements of the legislation who often have most difficulty in correctly completing their Election Expenses Statement forms. The Standards Commission recommends that the term "election agent" as set out in the Act should be amended to either "election spending accounting officer" or "election spending agent".

As with the 2002 general election the Standards Commission received a number of Election Expenses Statements which had been completed by someone other than the person notified as the candidate's election agent. As stated above, notification of a change of election agent must be routed through the Returning Officer for the constituency. This causes an unnecessary level of bureaucracy for all concerned and delays the Standards Commission in finalising these particular Election Expenses Statements. In view of the fact that the election agent's details do not form part of the nomination papers, the Standards Commission considers that it would be preferable if candidates were required to notify the Standards Commission directly of the appointment or change of an election agent.

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