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

3.12 - Overspending

There are a number of consequences arising from an overspend by an election agent or national agent of a political party at a Dáil general election. It is a criminal offence on the part of the agent concerned, punishable by a fine of up to €1,269.74. A person may also petition the High Court to set aside the result of the election. Rule 3A of the Third Schedule to the Electoral Act 1992 (as introduced by section 44 of the Electoral Act 1997) provides that leave of the High Court to present such a petition must be applied for within 14 days of the Standards Commission having laid a copy of the Election Expenses Statement before the Houses of the Oireachtas. Aside from this, the Standards Commission has no other function in relation to an election petition.

The amount of any overspend by an election agent is deducted from the reimbursement of election expenses which may be due to the candidate while any overspend by the national agent of a political party is deducted from the annual payment received by the party from the Exchequer under the Act.

The Act provides that an election agent will have overspent at the election if he/she exceeds the statutory expenditure limit applicable to the candidate at the election. There was no evidence of any election agent having exceeded the statutory spending limit applying to the candidate.

In the case of an election agent of a candidate contesting the election of behalf of a political party the election agent is also deemed to have overspent if he/she exceeds the amount of the expenditure limit available to the candidate after the assignment was made to the party (see paragraph 3.6). It was evident from the Election Expenses Statements received that the total expenditure accounted for by some election agents exceeded the amount of the expenditure limit retained by the candidate. However, the Act does not specify when the written assignment must be made and does not preclude a renegotiation of the agreed assignment at any stage during or indeed after the election campaign. The Standards Commission's view is that it cannot legally refuse to accept a renegotiation of an assignment even after an Election Expenses Statement has been furnished. There were a number of instances where the assignment was renegotiated after the statutory deadline for receipt of Election Expenses Statements. It was evident to the Standards Commission that in most if not all of these cases the purpose of the reassignment was to ensure that the election agent did not overspend by exceeding the amount of the expenditure limit retained by the candidate.

The Act provides that the national agent of a political party will have overspent if he/she incurs expenditure which exceeds the total amount assigned to the party by its candidates. There was no evidence of a national agent having exceeded the total amount assigned by the party's candidates.

The national agent will also be deemed to have overspent if he/she incurs expenditure on a particular candidate which exceeds the amount assigned by the candidate to the party. In considering the Election Expenses Statement furnished by the national agent of the Green Party the Standards Commission found that the party had incurred election expenses on candidates who had not made any assignment to the party. The party subsequently provided written agreements from these candidates which made an assignment to the party which was sufficient to cover the expenses incurred by the party on the candidates' behalf. As previously stated, the Standards Commission has taken the view that it cannot legally refuse to accept such an assignment even after an Election Expenses Statement has been furnished.

The Standards Commission did not, therefore, refer any instances of overspending to the DPP/Gardaí.

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