10/03/09 - Report to the Minister for the Environment on Third Parties and the Referendum on the Treaty of Lisbon

Chapter 4 - The referendum on the Treaty of Lisbon

General supervision

The Standards Commission published a public notice and produced an explanatory note for third parties campaigning at the referendum. The public notice was published in the main national newspapers on 12 March 2008 and in the Sunday newspapers on 16 March 2008. It was also published in other relevant magazines. A number of individuals and groups contacted the Standards Commission for advice as to whether they were required to register as a third party. The Standards Commission also wrote to a number of individuals/groups which it was aware were campaigning at the referendum and informed them that their campaign was captured by the definition of political purposes. They were each given a copy of the Standards Commission's explanatory note and were requested to consider if they were required to register as a third party. Eight groups registered as a third party. Details of these groups and the other individuals/groups contacted by the Standards Commission are provided at Appendix 2 of this report.

Some of the groups which campaigned at the referendum informed the Standards Commission that they intended to finance their campaigns from their own resources and that they would not be seeking any donations. These groups were informed that they were not required to register as a third party.

The Standards Commission found a high level of awareness of the requirement to register as a third party among individuals and groups campaigning at the referendum. This may be due to the fact that many of these had campaigned at the Referendum on the Nice Treaty in October 2002 where these provisions had also applied. 

Legal advice

The Standards Commission received a number of enquiries as to how the third party provisions of the Act would apply at the referendum. The Standards Commission decided to seek legal advice in relation to a number of issues arising from these enquiries.

Groups based outside the state

With regard to the restrictions, if any, which might apply to groups and individuals from outside the state who intended to campaign or fund campaigns at the referendum, the Standards Commission was advised that the provisions of the Act relating to third parties would not apply to individuals or groups which did not have a presence in this jurisdiction.

The Standards Commission was also advised that an individual or group would only be required to register as a third party if a contribution which was given for political purposes was received. An individual or group which used its own resources to fund its referendum campaign and did not receive a donation would not be regarded as a third party.

Funding from European political groups

The Standards Commission also received legal advice on the issue of the use of funding which might be provided to Irish MEPs and political parties by their political groups in the European Parliament. Section 22(2)(b)(ii) of the Act provides that any payment, service or facility provided to a person out of monies provided by an institution of the European Union by virtue of the person being an MEP or a political group is not regarded as a donation. The Standards Commission was informed that political groups are funded by the European Parliament and only make funds available to an Irish MEP or political party which is a member of the political group. On the basis of this information, the Standards Commission was advised that, in accordance with section 22(2)(b)(ii) of the Act, such funding would not be regarded as a donation to an Irish MEP or political party. The Standards Commission advised each MEP and the appropriate officer of their political parties accordingly.

The Standards Commission wrote to the Minister for Environment, Heritage and Local Government on 12 March 2008 informing him of this advice and how it intended to apply the provisions of the Act relating to third parties at the referendum.

Concerns about the transparency of funding of third parties campaigning at the referendum

During the referendum campaign, concerns were expressed about the expenditure of certain groups and how this expenditure was being funded. Concerns were also expressed that third parties campaigning at the referendum would not be required to disclose details of donations received by them. At the outset of the campaign the Standards Commission clarified that, unlike political parties, elected representatives and candidates at elections, third parties are not required to disclose details of donations received by them. The Standards Commission also clarified that information contained on the Certificates and bank statements furnished to the Standards Commission by third parties would not be made available for public inspection. Nevertheless, there has been continuing confusion about these points.

In its Review of the Electoral Acts in 2003 and in its Annual Report for 2005, the Standards Commission suggested that, instead of the acceptance of a donation determining whether an individual or group is required to register as a third party, the focus of these provisions of the legislation should con centrate on the amount spent on a particular campaign by individuals or groups. If that amount exceeded a certain threshold (e.g., €5,000) then individuals/groups might be required to show how their campaign was funded. Limits on the type and amount of d onations which could be accepted to fund the campaign would apply.

The 2008 referendum highlighted significant weaknesses in the provisions of the Act concerning third parties. The Standards Commission welcomes the Minister's stated intention to review the disclosure requirements attaching to third parties. The Standards Commission suggests, however, that this review might encompass all provisions of the Act relating to third parties and should take into account previous recommendations made by the Standards Commission in this regard and the recommendations contained in Part 8 of this report.

Correspondence with third Parties concerning loans to fund their referendum campaign

Section 4(4) of the Act provides that the Standards Commission may make whatever enquiries it considers necessary and can request any document, information or thing from a person for the purposes of carrying out its duties under the Act. The requirements attaching to third parties are set out in Part 2 of this report. As part of its supervisory role under the Act the Standards Commission is responsible for ensuring that third parties comply with these requirements. No third party is required to disclose details of donations received by it.

The Standards Commission wrote to four of the registered third parties regarding the provision of loans - Libertas, CÓIR, Campaign Against EU Constitution and Irish Alliance for Europe. These groups were selected on t he basis that they intended to incur expenditure of €10,000 or above at the referendum. The Irish Alliance for Europe, CÓIR and Campaign Against EU Constitution informed the Standards Commission that they had not received any loans to finance their refere ndum campaigns. Libertas had already informed the Standards Commission of a loan provided by Mr Declan Ganley. The letter to Libertas asked whether other loans had been provided to fund the referendum campaign. At the time of writing this report, and despite a number of written and telephone reminders to Libertas, it has failed to provide the required information to the Standards Commission.

Further correspondence with Libertas

The "responsible person" of Libertas, Mr Naoise Nunn informed the Standards Commission on 30 September 2008 that he had resigned from Libertas with effect from 19 September 2008. In addition to furnishing a Certificate and bank statement in respect of the third party's political donations account, the responsible person must also ensure that any prohibited donations which might be received by the third party are returned to the donor or remitted to the Standards Commission. The Standards Commission wrote, therefore, to Libertas requesting it to provide details of the person who had replaced Mr Nunn as responsible person for Libertas. At the time of writing this report, Libertas has not provided this information to the Standards Commission.

Referendum campaign funding by Libertas

Following media reports, the Standards Commission decided to make certain enquiries with Libertas in order to ensure that it complied with its obligations under the Act regarding the opening and maintenance of a political donations account and the non-acceptance of prohibited donations. In that regard the Standards Commission made the following enquiries with Libertas:

a) Employees of Rivada Networks Ltd

It was suggested that persons employed by Rivada may have been paid by that company while working for Libertas on its referendum campaign. If this was the case it could be regarded as a donation to Libertas from Rivada. If the total value of the services provided exceeded €6,348.69 in any year, Libertas would be required to refund the excess donation to Rivada.

Libertas confirmed that Rivada employees "who worked on the Libertas project did so in their spare time and on a voluntary basis."

On 11 September 2008 the Standards Commission asked Libertas to provide further details of the employees who worked on the referendum campaign. At the time of writing this report, Libertas has not provided this information to the Standards Commission.

b) Use of "The Lisbon Treaty: the Readable Version"

The Standards Commission was aware that Libertas had distributed a book - "The Lisbon Treaty: the Readable Version" - as part of its referendum campaign. It was reported that the book "sells for €20" and that 35,000 copies of the book had been given to Libertas by another organisation, the Foundation for European Democracy. A donation is defined in the Act as a contribution given for political purposes. This includes the free or below cost provision of goods, property or services. If the books were given for the purpose of assisting Libertas in its referendum campaign and if the total value of the books provided to Libertas exceeded €6,348.69 in any year, Libertas would be required to refund the excess donation to the Foundation for European Democracy. The Standards Commission requested Libertas to clarify the position with regard to the use of these books, whether they were provided free or below commercial cost, and querying why the provision of these books should not be regarded as a donation to Libertas.

On 13 August 2008 Libertas confirmed that it had received a number of copies of this book from "the EU Democrats". Libertas stated that the books did not contain any political messaging and that they were distributed free of charge. The Standards Commission considered that this response was not entirely relevant in determining whether provision of the books constituted a donation to Libertas. The Standards Commission wrote again to Libertas advising it that if the books were provided free of charge (where a charge normally applies) and were given for the purposes of seeking to influence the outcome of the referendum it would be regarded as a donation to Libertas. Libertas was asked for its further comments as to why the provision of these books should not be regarded as a donation. At the time of writing this report, Libertas has still not provided any further comments on this matter to the Standards Commission.

c) Loans provided to Libertas

The Standards Commission's position on the issuing and repayment of loans is set out in Part 4 of its guidelines for political parties (published in December 2006). The same position applies to loans to third parties. The guidelines state that where an individual or body, who or which is not a financial institution, gives a loan to a person who is covered by the Act, it must be evident that the loan offered is a bona fide loan and that the interest chargeable on the loan reflects interest charged by financial institutions on loans of similar amount and duration. The Standards Commission wrote to Libertas on 19 June 2008 requesting details of any loans provided to it from a financial institution or other person for the purposes of funding its referendum campaign.

Mr Ganley replied on 13 August 2008 confirming that Libertas had received a personal loan from him " in respect of which a detailed legal agreement and repayment plan in accordance with commercial lending norms " had been agreed. In its guidelines for political parties the Standards Commission advises that it may require sight of the terms and conditions, including the interest charge, applying to a loan provided by a person who or which is not a financial institution. The Standards Commission wrote to Mr Ganley on 22 August and requested a copy of the legal agreement and repayment plan for the loan made to Libertas.

In spite of subsequent correspondence with Mr Ganley and his legal representatives, the information requested by the Standards Commission has not been provided by Libertas at the time of writing this report.

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