11/11/04 - Report to Ceann Comhairle re European elections of 11 June 2004

Chapter 9 Issues relating to the European election campaign

Spending by local elections candidates

The Standards Commission has no jurisdiction in relation to expenditure by candidates at local elections. However, where a European election candidate was featured in promotional material which primarily related to local elections candidates, a proportion of the expenditure involved was regarded as an election expense incurred on promoting the candidacy of the European election candidate. A local elections candidate, director of elections, etc., who intended to include a reference to a European election candidate in local elections promotional material should have been authorised to do so by either the European election candidate's election agent or the national agent of the European election candidate's political party.

Election agents and national agents at the European election were advised by the Standards Commission to be aware of any such unauthorised expenditure being incurred by local elections candidates. In that regard, election agents of European election candidates, who were contesting the election on behalf of a political party, were advised to write to each of the party's local elections candidates in the European election constituency to advise them of the above requirements.

The extent to which a European election candidate was featured in local elections promotional material was used as a basis for calculating the proportion of the election expense which would be attributed to the European election candidate. Where the expense incurred exceeded €126.97 in any one payment it was required to be accounted for in the Election Expenses Statement furnished to the Standards Commission by the election agent or national agent who authorised it. Where the expense incurred did not exceed €126.97 in any one payment the expense was deemed to be a minor expense (see paragraph 4.2(g) above) and was not required to be accounted for in an Election Expenses Statement. It should be noted that, in the majority of cases, the amount of the election expense attributed to a European election candidate would not have exceeded €126.97 in any one payment.

As a general rule, where expenditure incurred on promoting a European election candidate is borne by the local elections candidate (as opposed to his/her political party) it is regarded as a donation by the local elections candidate to the European election candidate. Donations from the same local elections candidate to a European election candidate must be aggregated and treated as a single donation for the purposes of observing the disclosure and maximum acceptance limits applying to donations made to European election candidates.

The referendum on Irish citizenship

The referendum on Irish citizenship took place on the same day as polling for the 2004 European and local elections. The Standards Commission took the view that where material relating to the referendum included a reference to a person's candidacy at the European election it would be regarded as promoting the candidate. If such material was used during the election period, the cost involved would be regarded as an election expense incurred on the candidate's behalf which must be accounted for by his/her election agent. The Standards Commission is not aware of any references to European election candidates in referendum material which was in evidence during the election period.

Cross canvassing

Where a European election candidate's election material promoted his/her running mate, it was regarded as election expenditure incurred by the first candidate's election agent on behalf of the running mate. This is known as cross canvassing or strip promotion. In its guidelines for the European election, the Standards Commission recommended that agreements and authorisations be put in place between the election agents of running mates in a constituency to cover cross-canvassing.

The proportion of the cost of producing and distributing the material, calculated on the basis of the extent to which the running mate was featured, should be accounted for by the running mate's election agent or by the party's national agent. Where the costs concerned have been borne by the candidate (as opposed to his/her political party) it is regarded as a donation by the candidate to his/her running mate. All such donations must be aggregated and treated as a single donation for the purposes of observing the disclosure and maximum acceptance limits applying to candidates at the election.

Where national agents incurred expenditure on material which featured both of the party's candidates in a constituency, the cost of producing and distributing the material was required to be apportioned between the candidates concerned in a manner that reasonably reflects the extent to which each of them was featured in the material. Expenditure incurred by a political party on behalf of its candidates is not regarded as a donation to the candidates.

Accounting for costs met out of public funds

As stated in paragraph 4.3 above, arising from the judgments in the Kelly case, where goods, property or services were used for electoral purposes during the election period and the costs were met from public funds, such costs were subject to the expenditure limit applying at the European election and were required to be accounted for as election expenses in the Election Expenses Statement furnished by the authorising election agent or national agent.

The Standards Commission was mindful of the fact that some candidates at the European election who were members of the European Parliament or of the Dáil or Seanad or a local authority may have been required during the election period to communicate with constituents on matters connected with their role as public representatives. In that regard, the Standards Commission recognised that it was necessary to distinguish between use of facilities paid for out of public funds in carrying out the normal ongoing duties of a public representative and use of such facilities for purely electoral purposes.

The Standards Commission took the view that where facilities were used by a candidate during the election period for the purpose of sending unsolicited election material to any one of the electorate in the constituency and the cost of so doing was met out of public funds, this would be regarded as having been for electoral purposes and the cost would require to be accounted for as an election expense. This would also apply to unsolicited material issued by elected representatives, other than the European election candidate, where the material either promoted or opposed a candidate at the European election or otherwise brought attention to the candidacy.

As with any other election expense, the use of facilities paid for out of public funds must be authorised by a candidate's election agent or the national agent of a political party. In relation to the European election, it was a matter for the relevant agent and the candidate, in consultation with the provider of the facilities, to determine the value of the usage for electoral purposes during the election period and to account for this in the Election Expenses Statement.

Enquiries received by the Standards Commission regarding the appropriateness of using facilities paid for out of public funds for electoral purposes

During the course of the European and local elections, the Standards Commission received a number of complaints from members of the public about the appropriateness of candidates at the elections using facilities for electoral purposes which are paid for out of public funds. For the most part, the complaints related to pre-paid Oireachtas envelopes.

As already stated above, in the case of the European election, any such use during the election period (7 May - 11 June 2004) was required to be costed and accounted for as an election expense.

In addition to its functions under the Electoral Acts, the Standards Commission has a supervisory role under the Ethics in Public Office Acts, 1995 and 2001 (the Ethics Acts) where that legislation applies to office holders (e.g. members of the Government and Ministers of State) and public servants. One of the requirements of the Ethics Acts is that separate Codes of Conduct for office holders, TDs and Senators and public servants would be drawn up. The Code of Conduct for office holders was drawn up by the Government and published by the Standards

Commission in July 2003, prior to the European election. The Codes for TDs and Senators, which are supervised by the Committee on Members' Interests of each House, were agreed by the Dáil and Seanad in early 2002.

Section 2.2.3 of the Code for office holders refers to the fact that office holders "are provided with facilities at public expense in order that public business may be conducted effectively". The section goes on to say that "use of these facilities should be in accordance with this principle". Section 2.2.3 further states that "official facilities should be used only for official purposes" and that "office holders should ensure that their use of officially provided facilities are designed to give the public value for money and to avoid any abuse of the privileges which, undoubtedly, are attached to office".

In light of the foregoing, the Standards Commission is strongly of the view that it is not appropriate that office holders should use facilities paid for out of public funds for electoral purposes. Neither is it appropriate that office holders should allow such facilities, which are provided to assist them in discharging their official and representational duties, to be used by others. The Chairman of the Standards Commission wrote to office holders on 5 May 2004 drawing their attention to the relevant provisions of the Code of Conduct and reminding them of the need to comply in all respect with their obligations under the Code.

Where a person is of the view that an office holder may not have complied with the Code of Conduct, he/she may make a complaint in writing to the Standards Commission. It is already on record that the Standards Commission had cause to correspond with Minister Noel Dempsey and Minister of State Frank Fahey about the use of official resources for electoral purposes. The Standards Commission concluded that the Code of Conduct for office holders had not been appropriately observed by either Minister. It is understood that, in both cases, a refund was made of the costs involved. Any other such cases coming to the attention of the Standards Commission will be pursued.

Provisions similar to those contained in the Code of Conduct for office holders are contained in the separate Codes of Conduct for members of the Houses who are not office holders. As outlined above, supervision of the Ethics Acts in relation to such members is a matter for the Committee on Members' Interests of each House. The Chairman of the Standards Commission wrote to the Chairman of the Dáil Committee on Members' Interests and the Chairman of the Seanad Committee on Members' Interests on 11 May 2004 drawing to their attention the advice given by the Standards Commission to office holders.

The Electoral (Amendment) Act 2004

A potential difficulty arose in relation to the definition of election expenses at a European election following the enactment of section 33 of the Electoral (Amendment) Act, 2004. Section 33 of the 2004 Act provides for the deletion of paragraph 2(a) of the Schedule to the Electoral Acts.

As outlined in paragraph 4.3 above, the judgment in the Kelly case was that section 2(c) of the Schedule to the Electoral Acts was invalid and that section 2(a) of the Schedule insofar as it applies to section 22(2)(b)(ii) of the Act was also invalid.

Section 2(a) of the Schedule insofar as it applies to section 46(2)(b) of the Electoral Acts (which are the relevant provisions applying to a presidential election) was not declared invalid by the Court judgment. It was understood from discussions with the Department of the Environment, Heritage and Local Government that legislation would be introduced to amend section 2(a) of the Schedule to the Electoral Acts in order that the Court judgment would also apply to presidential elections.

However, as stated above, the amending legislation, section 33 of the Electoral (Amendment) Act, 2004, deleted section 2(a) of the schedule entirely. This meant that the matters referred to at section 22(2)(b)(i -v) of the Electoral Acts (below) were no longer specifically excluded from the definition of election expenses.

The free post service provided by An Post to European election candidates.

A free service provided by an individual.

A service provided by an employee of a political party.

Normal media coverage.

The transmission on radio or television of a broadcast on behalf of a candidate or a political party.

A strict interpretation of section 33 raised the possibility that the above matters could now be regarded as election expenses if they were captured by the definition of election expenses as provided for in section 31 of the Electoral Acts and paragraph 1 of the Schedule to the Electoral Acts (see paragraph 4.1 above). The difficulty was compounded by the fact that the commencement date of section 33 of the 2004 Act was 19 May 2004 which was in the middle of the election period for the European election.

Having received legal advice in the matter, the Standards Commission decided that it would not be sensible or appropriate to apply a strict interpretation of section 33 of the 2004 Act in relation to the recording of election expenditure at the European election. If the matters referred to in section 22(2)(b)(i -v) of the Electoral Acts (above) were required to be accounted for as election expenses, it is likely that a large number of candidates' election agents and national agents of political parties would have exceeded their expenditure limits. The Standards Commission decided to proceed on the basis that, as candidates' election agents and the national agents of political parties had conducted their campaigns in accordance with the rules as set out in the Standards Commission's guidelines for the European election, which were published prior to the enactment of Section 33 of the 2004 Act, and as the enactment occurred in the middle of the election period, it would be unreasonable to require them to account for their election expenses on an entirely different basis.

The Chairman of the Standards Commission wrote to the Minister for the Environment, Heritage and Local Government informing him of the position as outlined above in relation to the European election and alerting him to the difficulties that section 33 of the 2004 Act might cause in the context of future elections. The Minister agreed that doubt had been introduced to this area by the terms of section 33 of the 2004 Act. He stated his intention to bring forward, at an appropriate opportunity, legislative proposals to address the position by confirming that the relevant items are not to be regarded as election expenses.

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