Third Parties, Other Persons and Publishers

Third Parties, Other Persons and Publishers - Introduction

The key issues which third parties, other persons and publishers should be aware of in order to ensure compliance with the requirements of the legislation are as follows:

(A) What is a "Third Party" and an "Other Person"

(B) Statutory requirements of a Third Party with regard to receipt of donations

(C) Statutory requirements of a Third Party and Other Person with regard to incurring election expenses

(D) What are election expenses

(E) Payment of invoices to suppliers

(F) Election Expenses Statements

(G) Statutory requirements for publishers under section 31(10) of the Act

(H) Offences and Penalties applicable to third parties with regard to the receipt of donations

(I) Offences and Penalties applicable to third parties and other persons with regard to incurring election expenses

A. What is a "Third Party" and an "Other Person"

4.1 A "third party" is defined in the Act as meaning any person, other than a registered political party or a candidate at an election, who accepts, in a particular year, a donation given for political purposes, the value of which exceeds €126.97.

4.2 An "other person" is a person or group who intends to incur expenses at the election to promote or oppose a candidate or a political party. Candidates, their election agents or national agents of political parties are not regarded as "other persons".

4.3 A third party must also register as an "other person" if it intends incurring expenses at the election. An "other person", however, is not required to register also as a "third party" if it has not accepted a donation which exceeds €126.97.

B. Statutory requirements of a Third Party with regard to receipt of donations.

Registration

4.4 As soon as possible after the receipt by it of a donation the value of which exceeds €126.97 and before incurring any expenses for political purposes or, as the case may be, before incurring any further such expenses, a third party must furnish to the Standards Commission in writing -

• the name and address of the third party and the name and address of the "responsible person", or each "responsible person", in relation to the third party (a "responsible person" is the person(s) responsible for the organisation, management or financial affairs of the third party),
• a statement of the nature, purpose and estimated amount of the donations to, and proposed expenses of, the third party in any year, and
• an indication of the third party's connection, if any with any political party or candidate at a Dáil, Seanad or European election or referendum or otherwise.

Third parties are not required under the Act to disclose details of donations received by them.

What is a donation?

4.5 A donation is defined in the Act as meaning any contribution given for political purposes by any person, whether or not the person is a member of a political party.

There are a number of important words in the definition of a donation.

(a) Donation

A donation includes:

1. a donation of money;
2. a donation of property or goods;
3. the free use of property or goods;
4. a free supply of services;
5. the difference between the commercial price and the (lower) price charged for property, goods or services; (this can include a loan provided to a third party by a financial institution at terms and conditions which are more favourable than that provided by the financial institution to other individuals or organisations. Details of the Standards Commission's position with regard to the issuing and repayment of loans to third parties can be found at paragraph 4.6 below) and
6. a donation received by way of a contribution made to the net profit from a fund-raising event organised for the benefit of a third party. It should be noted that where an individual or a group organises a fund-raising event for a candidate at an election and the individual/group retains control of the proceeds of the event (i.e. does not pass the proceeds to the candidate) the individual/group may be regarded as a third party. This is explained in more detail in Appendix 2, as is the method of calculating the profit from a fund-raising event.

(b) Political purposes.

The contribution must be given for political purposes. The definition of political purposes is at Appendix 1.

(c) Person.

This can be:

1. an individual;
2. a body corporate (e.g. a public or private company), and any subsidiary thereof. In this regard section 155 of the Companies Act should be applied when determining whether a company is a subsidiary of another company. Where donations are received from associated companies it may be necessary to enquire from the donors whether, under section 155 of the Companies Act, one or other of the companies is a subsidiary of the other;
3. an unincorporated body of persons, e.g. a political party, a partnership, a residents association, a lobby group.

Loans to third parties

4.6 Where a loan is provided to a third party by a financial institution and the normal terms and conditions attaching to such loans apply, the loan is not regarded as a donation to the third party. However, where a loan is provided to a third party by a financial institution in circumstances where either the interest charged is less than the lowest rate available from the financial institution or the loan is not repaid in accordance with the terms and conditions under which the loan was issued or is only partially repaid, the benefit to the third party may be regarded as a donation and may, therefore, be subject to the maximum limit of €6,348.69 applying to the acceptance of donations by third parties.

Where an individual or body, who or which is not a financial institution, gives a loan to a third party, it must be evident that the loan offered is a bona fide loan. In that regard the following would apply:

• As with a loan from a financial institution, the terms and conditions applying to the loan and its repayment must be stated clearly in writing.
• Interest is chargeable on the loan at a rate (whether fixed or variable) which reflects the interest charged by financial institutions on loans of a similar amount and duration. Where the interest charged is less than the lowest rate available from a financial institution, the benefit accruing from the difference in rates is regarded as a donation to the third party.
• The Standards Commission may require sight of the terms and conditions, including the interest charge, applying to the loan and may require confirmation that the loan has been repaid in accordance with these terms and conditions. If the loan is not repaid in accordance with the terms and conditions, or is only partly repaid, the benefit of such non-repayment may be regarded as a donation to the third party and subject to the maximum acceptance limit.

Prohibited Donations

4.7 Acceptance of an anonymous donation exceeding a value of €126.97 is prohibited. A donation is anonymous if a third party does not know the name and address of the donor.

4.8 If an anonymous donation is received by a third party, the Standards Commission must be notified by the third party within 14 days of its receipt. Also, the donation, or its value, must be remitted by the third party to the Standards Commission.

4.9 A third party is also prohibited from accepting a donation, or donations, from the same person in the same calendar year which is valued in excess of €6,348.69. Where such a donation is received, the third party must notify the Standards Commission within 14 days and remit that donation, or that part of a monetary donation which is over the limit, to the Standards Commission. As an alternative, the third party may return the donation, or that part of a monetary donation which is over the limit, to the donor and keep a written record of that return for the purpose of its being furnished to the Standards Commission, if required.

4.10 A third party is prohibited from accepting a foreign donation. A "foreign donation" is a donation from an individual (other than an Irish citizen) who resides outside the island of Ireland or from a company which does not keep an office in the island of Ireland from which the carrying on of one or more of its principal activities is directed.

4.11 Where a foreign donation is received, it must be notified by the third party to the Standards Commission within 14 days and must be remitted to the Standards Commission. As an alternative, the third party may return the donation to the donor and keep a written record of that return for the purpose of its being furnished to the Standards Commission, if required.

4.12 Failure to notify, remit or return, as appropriate, a prohibited donation is an offence.

Opening and maintaining a Political Donations Account

4.13 If a third party receives, in any particular calendar year, a monetary donation for political purposes which exceeds €126.97, it is required to open and maintain an account in a financial institution (a political donations account) and lodge that donation and any further such monetary donations, of whatever value, received by the third party to that account. [It should be noted that a credit union is not regarded as a financial institution for the purposes of the Act].

4.14 If a third party campaigning at the election is already the holder of a political donations account, it is not necessary to open a new account specifically for donations received in relation to the election campaign. In such circumstances monetary donations, of whatever value, received in relation to the election campaign must be lodged to the existing political donations account.

Furnishing of Statutory Documentation in relation to a political donations account

4.15 Where a third party has been required to open a political donations account, the responsible person of the third party will be required to furnish to the Standards Commission a Certificate of Monetary Donations and a statement from the financial institution where the account is held (bank statement). This documentation must be furnished by 31 March each year following the opening of the political donations account. The Certificate of Monetary Donations must be signed by the responsible person stating that all monetary donations received after the account was opened were lodged to the account and that all amounts debited from the account were used for political purposes. The Certificate must be accompanied by a Statutory Declaration.

4.16 The bank statement must specify the transactions that have taken place in relation to the account during the period beginning on the date of opening of the account up to the end of the calendar year, or the date of closing of the account if the third party ceases to exist.

4.17 The Standards Commission Secretariat will be in contact with registered third parties at the beginning of the relevant calendar year and will provide a Certificate of Monetary Donations form for completion.

4.18 Certificates of Monetary Donations and their accompanying bank statements are retained by the Standards Commission and are not put on public display or otherwise disclosed, unless required by court order or an enquiry by the Standards Commission.

C. Statutory requirements of a Third Party and Other Person with regard to incurring election expenses

4.19 In addition to the requirement to register as a third party, (having received a donation in excess of €126.97), a third party which proposes to incur expenses at the election must, before incurring any such expenses, separately furnish to the Standards Commission, in writing:

1. the name, address and description of the person proposing to incur the expenses,
2. a statement of the nature, purpose and estimated amount of such expenses, and
3. an indication of the person's connection, if any, with any political party or candidate at the election.

4.20 An "other person" (as defined in paragraph 4.2 above) must also provide the above information to the Standards Commission before incurring any election expenses at an election. Once a third party or other person has complied with the above requirements and is deemed not to be connected to a political party or a candidate at an election, there is no limit to the amount of expenses which the third party or other person may incur. (See paragraph 2.29 regarding expenditure incurred by an individual/body deemed to be connected to a candidate and paragraph 3.20 regarding expenditure incurred by an individual/body deemed to be connected to a political party.)

D. What are election expenses

4.21 Election expenses are those and only those, set out in the definition of election expenses at Appendix 1, which are incurred in the provision of property, goods or services for use at the election during the election period (29 April 2009 - 5 June 2009 - see paragraphs 2.17 to 2.21 for a definition of the election period) in order :

1. to promote or oppose the interests of a political party or the election of a candidate, or
2. to present the policies of a political party or the comments of a political party on the policies of another political party or of a candidate at the election, or
3. to solicit votes for or against a candidate, or
4. to present the policies of a candidate or the views of a candidate on any matter connected with the election or the comments of a candidate on the policies of a political party or of another candidate at the election, or
5. otherwise to influence the outcome of the election.

4.22 A donation of property, goods or services which is received, free or below cost, and is used at the election during the election period is regarded as an election expense which must be accounted for at its full commercial price. However, allowance may be made for any discount which is normally given or is generally available in respect of the property, goods or services.

E. Payment of invoices to suppliers

4.23 Claims for payment of election expenses, from suppliers, must be received by a third party/other person within 45 days after polling day (i.e. by 20 July 2009). Claims received after this date cannot be paid by the third party/other person. It is an offence to make a payment if the claim is received after the 45 days have elapsed. This is specifically provided for in the Act. To avoid disputes, suppliers should be informed of this requirement when placing orders for property, goods or services. Even though such claims cannot be paid, they are still regarded as election expenditure and must be accounted for in the Election Expenses Statement furnished to the Standards Commission.

F. Election Expenses Statements

4.24 Shortly after the election, the Standards Commission will send to a third party/other person, which notified the Standards Commission of its intention to incur election expenses, an Election Expenses Statement and Statutory Declaration form. On this form, the third party/other person must disclose to the Standards Commission details of all expenses incurred and payments made by, and on behalf of, the third party/other person in relation to the election. Staff of the Standards Commission Secretariat will be available to offer assistance in completing the form.

4.25 The completed form must be received by the Standards Commission within 56 days after polling day (i.e. by 31 July 2009).

4.26 The following must be included in the Election Expenses Statement completed by a third party/other person:

1. details of all election expenses incurred by the third party/other person;
2. details of any disputed claims;
3. details of any late claims for payment (i.e. claims received more than 45 days after polling day which must not be paid).

4.27 Invoices, receipts or vouchers for every payment of an election expense exceeding €126.97 must be included with the Election Expenses Statement. The Standards Commission reserves the right to request any invoice, receipt or voucher for an item of expenditure valued at less than €126.97 contained in an Election Expenses Statement.

4.28 Omissions or errors found by the Standards Commission in an Election Expenses Statement will be notified to the person who furnished the statement. If a person is requested to amend an Election Expenses Statement he/she must do so within 14 days.

4.29 The Standards Commission can request additional information in relation to an Election Expenses Statement. Where such additional information is requested, it must be provided in a form determined by the Standards Commission and may require to be accompanied by a Statutory Declaration.

4.30 The Election Expenses Statement and Statutory Declaration form furnished to the Standards Commission will be laid before both Houses of the Oireachtas and made available to the public for inspection and copying. Details of the third party/other person and the expenditure incurred will be included in a report to the Chairman of Dáil Éireann and will be published on the website of the Standards Commission.

G. Requirements for publishers under section 31(10) of the Electoral Act, 1997

4.31 A publisher of a newspaper, magazine or other periodical publication must not publish any advertisement or notice in relation to the election purporting to promote or oppose, directly or indirectly, the interests of a political party or a candidate at the election, unless requested to do so by one of the following people:

• the national agent of a political party, or a person authorised in writing by such agent, or
• a candidate at the election, their election agent or person authorised in writing by such candidate or agent, or
• a person who produces to the publisher a Certificate of Authorisation from the Standards Commission certifying that they have complied with the provisions of section 31(7) of the Act in relation to the election (as outlined in paragraph 4.19 above)

4.32 These provisions of the Act are not intended to prevent or restrict the lawful publication of any matter in relation to the election in a newspaper or other publication, or the broadcast of such matter by radio or television or the lawful expression of opinion on any matter of public interest by any person.

4.33 Failure by the publisher of a newspaper, magazine or other periodical publication to comply with the above requirements can constitute an offence which may result in a fine of up to €1,269.74.

H. Offences and Penalties applicable to third parties with regard to the receipt of donations

4.34 Failure by a third party to register with the Standards Commission on receipt of a donation the value of which exceeds €126.97 may result in a fine of up to €1,269.74.

4.35 Failure by the responsible person of a third party to notify the Standards Commission of, or remit, as appropriate, to the Standards Commission, or return, as appropriate, to the donor, a prohibited donation referred to in paragraphs 4.7 to 4.11 above may result in a fine of up to €1,269.74.

4.36 Failure by the responsible person of a third party to furnish to the Standards Commission, by 31 March each year, the bank statement or Certificate referred to at paragraphs 4.15 to 4.16 above, may result in a fine of up to €1,269.74 and an on-going fine of up to €126.97 per day for any day after a conviction on which the bank statement or Certificate is still outstanding.

4.37 A responsible person of a third party who knowingly furnishes to the Standards Commission a bank statement or Certificate of Monetary Donations which is false or misleading in any material respect may be liable to a fine of up to €25,394.76 and/or up to 3 years imprisonment.

I. Offences and Penalties applicable to third parties and other persons with regard to incurring election expenses

4.38 If a person who is not authorised to do so incurs expenditure or makes a payment in relation to the election, he or she, on conviction, can be fined up to €1,269.74.

4.39 Failure to notify the Standards Commission of intent to incur election expenses can result in a fine of up to €1,269.74.

4.40 Payment of claims received more than 45 days after polling day (i.e. after 20 July 2009). 

4.41 Failure to make such enquiries and maintain such records as are necessary for the purpose of furnishing an Election Expenses Statement and making a Statutory Declaration may result in a fine of up to €1,269.74.

4.42 Failure to furnish an Election Expenses Statement by the statutory deadline (31 July 2009) can result in a fine of up to €1,269.74 and an on-going fine of up to €126.97 per day for any day, after a conviction, on which the Election Expenses Statement is still outstanding.

4.43 Failure to provide supplementary information relating to an Election Expenses Statement as requested by the Standards Commission can result in a fine of up to €1,269.74.

4.44 Knowingly furnishing a false or misleading Election Expenses Statement to the Standards Commission can result in a fine of up to €25,394.76 and/or up to 3 years imprisonment.

4.45 Failure to furnish to the Standards Commission, within 7 days after the date of the order, a copy of a court order for the payment of a disputed claim may result in a fine of up to €1,269.74.