1. Appointment of a national agent
1.1 Each political party with a candidate contesting the general election shall appoint a national agent [Section 28(1)(a)]. The national agent must have an office or place in the State to which claims, notices, writs, summonses and other documents may be sent [Section 29(1)].
1.2 Not later than the last day for receiving nominations at the election, 12 noon, 11 February 2016, the political party must notify the Standards Commission, in writing, of the name of the national agent and of the address of the office of the agent [Section 28(1)(a)]. If a political party has not notified the Standards Commission of the name of the national agent by this time, the "appropriate officer" (appointed under section 71 of the Act) will be deemed to be the national agent [Section 28(3)(a)]. If an appropriate officer has not been appointed, the party leader is deemed to be the party's appropriate officer and, as such, its national agent.
1.3 The Standards Commission will publish in Iris Oifigiúil the names of the national agents appointed or deemed to have been appointed [Section 28(6)(a)].
1.4 A political party may, at any time, revoke the appointment of a national agent and appoint another national agent in his/her place [Section 28(4)(a)]. Where this occurs, details of the new national agent must be provided to the Standards Commission.
2. Assignment by a candidate to a political party
2.1 Where a candidate is contesting the election on behalf of a political party, he/she may assign a portion of his/her statutory spending limit to the party for spending at the election by its national agent [Section 32(1)(b)(i)].
2.2 There is no obligation under the Act on a candidate to assign any portion of his or her spending limit to the party. If the candidate does not assign any of his/her spending limit to the party, then the national agent cannot incur any election expenses on behalf of the candidate. The candidate's election agent can, however, authorise the national agent to incur expenses on the candidate's behalf. The election agent must account for such expenses on his/her Election Expenses Statement.
The only spending by a party which is allowed is the sum of the amounts which have been assigned to the party by its candidates from within the candidates’ individual limit. Example: If a political party has 2 candidates contesting the election, each of whom assign €10,000 to the party from their individual spending limit, the national agent of the party would be entitled to spend a total of €20,000 at the election [Section 32(2)]. The amount of the limit available to be spent by each candidate’s election agent would, as a result, be reduced by €10,000.
2.3 The Act is not specific as to when the agreed assignments should be made to the party. Similarly, the Act does not preclude a re-negotiation of agreed assignments. The Standards Commission recommends that national agents ensure that assignments are agreed with each candidate before any expenses are incurred by either the national agent or the candidate's election agent.
2.4 The Act requires that the assignment to the party must be agreed in writing [Section 32(1)(b)(i)]. The written agreement, therefore, should clearly state the amount assigned to the party. It should be signed by both the candidate and an appropriate party official. Where assignments are subsequently re-negotiated, a new written agreement must be drawn up.
2.5 The candidate will be required to give his/her election agent a copy of the written agreement for furnishing to the Standards Commission with the election agent's Election Expenses Statement [Section 36(1)(c)]. National agents will not be required to furnish copies of the written agreements with their Election Expenses Statements. National agents should, however, retain copies of the written agreements.
3. Spending by the national agent
3.1 The national agent is the only person who can incur expenditure or make payments on behalf of the party out of the spending limit assigned to it by its candidates [Section 31(4)]. Where expenses have been incurred by or on behalf of a political party before the appointment of a national agent, the party must furnish details of all such expenses, together with all relevant vouchers, to the national agent. It is an offence for a political party to fail to comply with this requirement.
3.2 The national agent can authorise other persons to incur expenditure or make payments within specific limits set by the national agent. The national agent must account for spending by all such authorised persons [Section 31(5)].
3.3 The national agent can spend up to 100% of a candidate's spending limit, if the candidate assigns this to the party. If the national agent is assigned a spending limit and incurs election expenses, great care must be taken to ensure that the total spend on the candidate by his/her election agent and by the national agent does not exceed the statutory limit for the constituency (i.e., €45,200 for a five seat constituency) [Section 32(1)(a)].
3.4 The national agent cannot incur expenditure or make payments out of the amount of the spending limit retained by the candidate unless the national agent is authorised to do so by the candidate's election agent. In this situation, expenditure by the national agent would be as an authorised person of the election agent and any such expenditure would have to be recorded by the election agent.
3.5 Spending by the national agent out of the amount assigned to the party by its candidates can be either on a candidate or at national level.
3.6 Spending on a candidate is spending which identifies and promotes a candidate(s) in a constituency. This includes the party's "team" in a constituency (i.e., candidate and running mate(s)). Where election materials (e.g. posters, billboards) feature a party's leader and its candidates, the expenditure will be deemed to have been incurred by the candidates concerned and not the party leader. (The party leader is the only person who may appear in a poster, billboard etc., and not have the expenses regarded as having been incurred in respect of his candidacy.) Spending by the national agent on a particular candidate cannot exceed the amount assigned to the party by the candidate.
3.7 No part of a candidate's spending limit can be transferred from one candidate to another in a constituency.
3.8 National Spending is spending which, by its content and geographic extent, is clearly aimed at attracting votes in the country as a whole. It is not directly related to the promotion of a candidate, or a number of candidates, in a constituency. Reference should be to the party, its leadership, its policies or election issues in a national context. It should be reasonably and evenly spread throughout the country having regard to the extent to which advertising media is available. Such spending is usually on items like the party manifesto, party political broadcasts, tours by the party leader etc. Where party political broadcasts feature members of the party leadership or party spokepersons, the expenses incurred will be regarded as national spending and will not be regarded as having been incurred on the individual candidates. In a situation where a candidate who is not a party spokesperson and who is not part of the party leadership, appears in a party political broadcast, the spending incurred will not be regarded as national spending and an appropriate portion of the cost of the broadcast will be regarded as expenditure incurred on the candidate's behalf.
3.9 Where the national agent of a political party proposes to incur election expenses which include an endorsement which solicits votes for another political party, the endorsement is regarded as expenditure incurred on behalf of the second party. A proportion of the cost of the materials, which should be calculated on the basis of the extent to which the second party is featured, must be met from the second party's expenditure limit and must be authorised and taken into account by the national agent of the second party.
3.10 Where expenditure is incurred by the national agent of a political party on materials which include an endorsement which solicits votes for a candidate or candidates of another political party, the endorsement is regarded as expenditure incurred on the candidate's behalf. A proportion of the cost of the materials, which should be calculated on the basis of the extent to which the candidate is featured must be met from the expenditure limit of the candidate or the expenditure limit of his/her political party. The expenditure must be authorised by the candidate's election agent or the national agent of his/her political party.
3.11 Where either of the above type of cross-canvassing is likely to take place, it is recommended that relevant agreements and authorisations are put in place beforehand to cover the likely costs of the expenditure.
4. Persons incurring unauthorised expenditure
4.1 The national agent is the only person who can incur expenditure or make payments on behalf of a political party at the general election [Section 31(4)(a)]. National agents should be aware that if a person or body is incurring expenses at the election to promote the party or its candidates, the Standards Commission may regard such expenses as expenditure incurred by the political party, if it considers the person or body to have been:
· established by, or on behalf of, a political party for the purposes of incurring election expenses,
· is a member of, or is a branch or subsidiary organisation of, a political party, or
· is associated with, connected to, or under the influence or control of, a political party or candidate [Section 31(6)].
4.2 In such circumstances the expenses incurred must be taken into account by the national agent from within his/her expenditure limit. If a spending limit has not been assigned to the party, the candidate's election agent will have to account for the expenditure as appropriate. If such expenditure brings spending by the party or the election agent over the relevant limit, an offence will have been committed. It is important, therefore, that national agents are aware of the activities of groups or individuals incurring expenditure, given that such expenditure may be deemed to be expenditure incurred on behalf of the party or its candidates. The Standards Commission should be notified immediately of the activities of any such person or body. Expenditure by the following groups or individuals is particularly relevant in this regard.
Local party organisation
4.3 A local party organisation (e.g., constituency or branch) cannot incur expenditure or make a payment in relation to the party's election campaign, e.g., pay bills, without the authority of the national agent [Section 31(5)]. Such expenses must be accounted for by the national agent in his/her Election Expenses Statement.
4.4 A local party organisation cannot incur expenditure or make a payment in relation to the party's candidates at the election unless authorised to do so by the party's national agent or the particular candidate's election agent [Section 31(5)]. Such expenses must be accounted for in the Election Expenses Statement of the agent who authorised the expenses.
Expenditure by persons/bodies deemed to be associated with, connected to, or under the influence or control of, a political party
4.5 Bodies, such as trade unions or interest groups, which are affiliated to a political party will be regarded as connected to or associated with that political party. By extension, these bodies will be regarded as being connected to or associated with a candidate of a political party for the purposes of election expenses incurred on behalf of that candidate at the election. If such expenditure is authorised by the candidate's election agent it must be taken into account by that agent. Otherwise it should be taken into account by the national agent.
Expenditure incurred by unconnected "third parties"/"other persons"
4.6 Expenditure by "third parties" and "other persons", i.e., those not connected to a candidate or a political party, is permitted under the Act. National agents should notify the Standards Commission if they become aware of third parties or other persons incurring election expenditure either promoting or opposing a political party or a candidate.
4.7 Newspaper notices or advertisements promoting or opposing the interests of a party or candidate may only be placed if requested by a candidate, an election agent, a national agent or a person authorised by a candidate or either agent. "Third parties" or "other persons" may arrange newspaper advertising if they produce to the publisher a Certificate of Authorisation from the Standards Commission certifying that they have complied with the appropriate legal requirements. The Standards Commission will notify editors/publishers of the provisions of the legislation in this regard. [The provisions in question also apply to magazines and other periodical publications.] [Section 31(10)].
4.8 National agents should notify the Standards Commission if they become aware of third parties or other persons incurring election expenditure either promoting or opposing a political party or a candidate.
5. "The Election Period" - dates between which the spending limit applies
5.1 The spending limits at the general election apply to all expenses incurred and payments made in providing property, goods or services which are used for electoral purposes during the period commencing on the date of the dissolution of the Dáil which occasioned the election and ending on polling day itself, both dates included. The election period for the general election is from 3 February 2016 to 26 February 2016 [Section 31(3)(a)(i)].
5.2 Regardless of when the expenses are incurred or the payments are made, they must be taken into account if they relate to property, goods or services which are used for electoral purposes during the election period. Accordingly, expenses which are incurred or payments which are made at any time before the date of the dissolution of the Dáil on property, goods or services which are used during the election period must be accounted for [Section 31(3)(b)].
5.3 If expenses are incurred or payments are made on property, goods or services which were not used, or only a part was used, during the election period it will not be necessary to account for the unused part. Similarly, it will not be necessary to account for expenses incurred or payments made in respect of property, goods or services which were used before the commencement of the election period or which were used after the election period. Some examples of this might be:
· promotional material circulated by candidates/political parties before the election period commenced,
· insurance or rent costs applying to a campaign premises in so far as the costs relate to a period before and/or after the election period, or
· "Thank you" notices circulated after the election.
5.4 If an advertisement is published in a newspaper or other periodical publication which carries a publication date (i.e., the date printed on the paper) which is during the election period, the advertisement will be regarded as an election expense. If the publication date is before or after the election period, the advertisement is not regarded as an election expense.
5.5 The cost of an opinion poll or other similar survey which is taken within the period of 60 days before polling day will be regarded as an election expense [Section 31(1)(b) and Schedule to Act 1(g)].
6. What are election expenses?
6.1 The legislation provides that election expenses are those and only those, set out in the definition of election expenses in Appendix 1, which are incurred in the provision of property, goods or services for use at the election during the election period (3 February 2016 to 26 February 2016) in order to:
i. promote or oppose the interests of a political party or the election of a candidate, or
ii. 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
iii. solicit votes for or against a candidate, or
iv. 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
v. otherwise to influence the outcome of the election [Section 31(1)(a) and Schedule to Act].
6.2 Where property, goods or services, which have been provided free or below cost, are used during the election period, they are regarded as election expenses which must be taken into account as election spending by the relevant agent at their commercial price [Section 31(2)]. [An example might be where a printing company agrees to provide, free of charge, election literature which would normally cost €1,500.] This supply of material must be authorised and taken into account at its commercial price less any normal discount which may be available.
6.3 It is not possible to give definitive examples in these guidelines of all types of election expenses. If you are unsure as to whether an expense item should be accounted for as an election expense you should contact the Standards Commission Secretariat for advice.
Election Expenses which are met out of public funds
6.4 Where property, services or facilities are used for electoral purposes during the election period and the costs are made out of public funds, such costs must be accounted for as an election expense [Schedule 2(c) deleted – Kelly v Minister for the Environment & Ors [2002] 4 I.R.1 91]. The use of the material must be authorised by the candidate’s election agent. It will be a matter for the relevant agent and the candidate, in consultation with the provider of the property, services or facilities, to determine the value of the usage for electoral purposes during the election period and to account for same in the Election Expenses Statement. [Examples of this type of expenditure are use of Oireachtas facilities, e.g. prepaid Oireachtas envelopes, telephones, etc.]
6.5 The Standards Commission is aware that some candidates at the election who are already public representatives may be required to communicate with their constituents during the election period. It is necessary, therefore, where costs are met from public funds, to differentiate between the use of property, services (including staff) and/or facilities in carrying out reasonable constituency business and the use of such material for electoral purposes. The following is relevant in this regard:
· if, during the election period, such materials are used by the candidate for the purpose of any form of unsolicited communication to any of the electorate in the constituency, the materials will be regarded as having been used for electoral purposes and the costs will have to be accounted for as an election expense at their full commercial value. This also applies to unsolicited material issued by other elected representatives where the material either promotes or opposes a candidate or otherwise seeks to influence the outcome of the election;
· where a new enquiry is raised with a candidate while he/she is canvassing (i.e., an enquiry which had not been raised with the candidate prior to the election), and facilities, the cost of which are met out of public funds, are used for the purposes of responding to the enquiry, these facilities will be regarded as having been used for electoral purposes. This includes time spent by staff in responding to the enquiry (except where such staff are working voluntarily on the candidate's campaign).
7. What are not election expenses?
7.1 Items which are not election expenses include;
i. the cost of purchasing copies of the register of electors [Schedule to Act paragraph 2(e)];
ii. the payment of the deposit in respect of the candidate or the travelling or other expenses incurred by a candidate in obtaining assentors to secure the nomination of the candidate [Schedule to Act paragraph 2(d) & (dd)]
iii. the reasonable living expenses (including accommodation) of a candidate and volunteers working on his/her behalf [Schedule paragraph 2(f)]. Under this heading, in addition to accommodation costs, spending of up to €50per person per day on refreshments, etc., is permitted and does not have to be accounted for. (This means that accommodation costs plus other costs up to €50 per person per day are not regarded as election expenses.);
iv. any paid campaign worker who incurs minor expenses not exceeding €126.97 from their own resources and does not seek a reimbursement from the election agent [Schedule to Act paragraph 2(g)]. [NOTE: The only persons who may lawfully incur expenses or make payments at an election in relation to a candidate are the election agent of a candidate, the national agent of a political party, or a person authorised by either agent to incur election expenses. Accordingly, any other person who incurs expenses or makes payments at an election on behalf of a candidate is committing an offence. Election agents must maintain a record of all minor expenses which are not being accounted for as an election expense in his/her Election Expenses Statement. In order to deal with any questions which may arise as to why expenses in respect of particular items used during the election period are not shown as an election expense in the Election Expenses Statement, a record of all such "minor expenses" (not exceeding €126.97 in any one payment) may be required to be furnished to the Standards Commission. Invoices, receipts and vouchers in respect of minor expenses may also be required and should be retained by the Election Agent. Minor expenses are not included in the calculation of the total election expenses incurred.];
v. election expenses incurred at a previous Dáil, European or local election which were disclosed in an Election Expenses Statement furnished to the Standards Commission or to a local authority [Schedule paragraph 2(b)]. There is no need to record these expenses again. This does not apply to material used in relation to a referendum. [NOTE: If a candidate intends to use, or re-use, election material which has previously been recorded in an Election Expenses Statement, his/her election agent must notify the Standards Commission Secretariat and provide details of the materials being re-used and the Election Expenses Statement on which they were previously recorded.]
vi. free post service provided to candidates by (i.e., Litir Um Thoghcáin) [Section 22(2)(b)(i)]. It should be noted that only the postage costs are not regarded as an election expense. The cost of producing the leaflet/election address/Litir um Thoghcháin is an election expense;
vii. a free service provided by an individual, including use of the individual's motor vehicle, telephone, etc., where the service is not provided as part of the individual's work or business [Section 22(2)(b)(iii)(I)]. [NOTE: This provision of the Act refers specifically to an individual and to the use of an individual's motor vehicle (singular). If more than one vehicle is provided by an individual, the use of the additional vehicles may be regarded as election expenses. If a vehicle which is in the ownership of a company, partnership, business etc., is provided to a candidate it is not regarded as a free service provided by an individual. In such circumstances the use of the vehicle during the election period is regarded as an election expense. The commercial cost of hiring a similar vehicle for a similar period must be ascertained for the purposes of calculating the election expense.];
viii. fines imposed by organs of the State, e.g., parking and litter fines;
ix. a service provided at an election by an employee of a political party, including use of the individual's motor vehicle, where the employee's remuneration is paid out of party resources or out of public funds and where the employee is not in receipt of any reward or benefit-in-kind other than his or her normal remuneration (including recoupment of expenses) for that service [Section 22(2)(b)(iii)(II)]. Where overtime payments are normally paid to an employee of a political party for working additional hours, this is regarded as "normal remuneration" and is not regarded as an election expense;
x. normal media coverage and the transmission on radio or television of a broadcast on behalf of a candidate or a political party [Section 22(2)(b)(iv) & (v)]. This does not cover any production, or other, costs associated with a transmission on radio or television;
xi. the services of an accountant, or other person, (whether paid or not) employed for the specific purpose of ensuring compliance with the requirements of the Act;
xii. the use of offices which are owned by a political party and are made available to a candidate for use at the election. It is not necessary to attribute a notional rental cost to the use of such offices. The costs of heat, light, telephones, etc., incurred for electoral purposes at such offices during the election period are election expenses.
Examples of some of the more common items which are not election expenses and which were recorded as election expenses at previous elections are set out in Appendix 3.
Expenses incurred in order to facilitate a person's candidacy at the election
7.2 Certain expenses may have to be incurred on behalf of the candidate in order to facilitate his/her participation in the election process or an understanding of the relevant legislation. The Standards Commission does not regard such expenses as being part of a candidate's or a political party's election spending. Examples might include:
· additional child care costs;
· cost of work replacements;
· leave of absence with pay;
· loan interest and bank charges;
· costs associated with meetings convened to familiarise election participants with the requirements of the electoral legislation (e.g., room hire, documents, refreshments, travel).
8. Payment of invoices to suppliers
8.1 Claims for payment of election expenses, from suppliers, must be received by the national agent within 45 days after polling day (i.e., 11 April 2016). Claims received after this date cannot be paid by the national agent[Section 34].It is an offence to make a payment if the claim is received after the 45 days have elapsed. To avoid disputes, it is very important that agents advise their suppliers of this requirement when placing orders for property, goods or services. Even though such claims cannot be paid, they are still regarded as election expenses and must be accounted for in the Election Expenses Statement furnished to the Standards Commission.
9. Furnishing an Election Expenses Statement
9.1 Shortly after the election, the Standards Commission will send national agents an Election Expenses Statement/Statutory Declaration[Section 36(2)]. On this statement, the national agent must disclose to the Standards Commission details of all expenses incurred and payments made by, or on behalf of, the agent in relation to the election. Staff of the Standards Commission Secretariat may be contacted at sipo@sipo.ie if assistance is required. The completed statement must be received by the Standards Commission within 56 days after polling day (i.e., 22 April 2016). The national agent will be required to complete an Election Expenses Statement even if no expenses were incurred by the party.
9.2 The following must be included on the Election Expenses Statement:
i. details of all expenses incurred and payments made by the national agent and his/her authorised persons, including supplies of property, goods or services free or below cost which were used during the election period [Section 36(1)(a)],
ii. details of authorised persons including the amount each authorised person was permitted to spend and the amount actually spent,
iii. confirmation of the portion of each candidate's spending limit which was assigned by the candidate to the national agent's political party [Section 36(1)(c)],
iv. details of any disputed claims for payment, information concerning late claims for payment (i.e., claims received more than 45 days after polling day) [Section 36(1)(d)],
v. details of expenses incurred on goods, property or services used during the election period where the costs were met from public funds (See paragraphs 6.4 and 6.5).
A record of minor expenses (not exceeding €126.97 in any one payment) may also be required to be furnished to the Standards Commission in order to deal with any questions which may arise as to why expenses in respect of particular items used during the election period are not shown as an election expense on the Election Expenses Statement. Minor expenses will not be included in the calculation of the total election expenses incurred.
9.3 Invoices, receipts or vouchers for every payment of election expenses exceeding €126.97 must be included with the Election Expenses Statement [Section 31(9)]. The Standards Commission also reserves the right to request any invoice, receipt or voucher for an item of expenditure valued at less than €100 appearing in an Election Expenses Statement or a record of minor expenses.
9.4 Minor omissions or errors found by the Standards Commission in a national agent's Election Expenses Statement will be notified to the national agent. If requested to amend his/her Election Expenses Statement the national agent must do so within 14 days [Section 4(2)].
9.5 The Standards Commission can request additional information from a national agent in relation to his/her Election Expenses Statement. Where such additional information is requested, it must be provided in a form determined by the Standards Commission and may have to be accompanied by a Statutory Declaration [Section 36(2A)].
9.6 The Election Expenses Statement and Statutory Declaration will be laid by the Standards Commission before both Houses of the Oireachtas [Section 37(1)] and will be made available to the public for inspection and copying [Section 73]. Summary details of the expenditure incurred will also be included in a report to the Chairman of Dáil Éireann [Section 4(1)] and will be published on the website of the Standards Commission.
10. Consequences of overspending by the national agent
10.1 The consequences of an overspend by a national agent at the general election are:
i. it is a criminal offence punishable by a fine of up to €2,500[Section 43(2)(a) and Section 43(5)(a) & Section 6 of Fines Act 2010];
ii. the election may be questioned by a petition to the High Court to set aside the result of the election if it can be shown that the overspend materially affected the result of the election [Section 44];
iii. the amount of the overspend is deducted from the annual payment received by the party from the Exchequer under the Electoral Acts [Section 40(a)].
11. Offences and penalties
11.1 It is an offence for a political party to fail to furnish to the national agent relevant details of expenses incurred before the appointment of the national agent
11.2 If an unauthorised person incurs expenditure or makes a payment in relation to the election, he/she can be fined up to €2,500, on conviction [Section 43(1)(b) & 43(5)(a) & Section 6 of Fines Act 2010].
11.3 Payment of claims received more than 45 days after polling day (i.e., 11 April 2016) can result in a fine of up to €2,500 [Section 43(2)(b) & 43(5)(a) & Section 6 of Fines Act 2010.]
11.4 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 €2,500 [Section 36(4) & 43(2)(e) & 43(5)(a) & Section 6 of Fines Act 2010].
11.5 Failure to furnish an Election Expenses Statement and Statutory Declaration to the Standards Commission by the statutory deadline (i.e., 22 April 2016) can result in a fine of up to €2,500 and an on-going fine of up to €500 per day for each day, after a conviction, on which the Statement and Declaration are still outstanding [Section 43(2)(c) & 43(5)(a) & (c) & Sections 6 and 8 of Fines Act 2010].
11.6 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 €2,500[Section 36(2A) & 43(2)(e) & 43(5)(a) & Section 6 of Fines Act 2010].
11.7 A fine of up to €2,500 is the penalty when a national agent is found guilty of the offence of breaching the expenditure limit [Section 43(2)(a) & 43(5)(a) & Section 6 of Fines Act 2010].
11.8 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 [Section 43(2)(d) & 43(5)(b)].
11.9 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 €2,500 [Section 36(3) & 43(2)(e) & 43(5)(a) & Section 6 of Fines Act 2010].