2.1 - Legal Requirements
(i) Definition of a donation to a candidate at a Dáil election
Section 22(2)(a) of the Act provides that a donation to a candidate at a Dáil general election means any contribution given for political purposes by any person, whether or not the person is a member of a political party. A person includes an individual, a body corporate (e.g. a public or private company) or an unincorporated body of persons (e.g., a political party, a partnership, a residents association, etc.) A body corporate and any of its subsidiaries is deemed to be the same person for the purposes of the Act.
Section 22(2)(aa) of the Act specifies that, in relation to a candidate at a Dáil general election, political purposes means:
to promote or oppose, directly or indirectly, the election of a candidate;
to solicit votes for or against a candidate;
to present the policies or a particular policy of a candidate or the views of a candidate on any matter connected with the election;
to present the comments of a candidate with regard to a policy or policies of a political party or a political group or of another candidate at the election;
to otherwise influence the outcome of the election
A donation to a candidate at a Dáil general election includes all or any of the following:
a donation of money, property or goods;
the free use of property, goods or services;
the difference between the commercial price and the (lower) price charged for the purchase, acquisition or use of property, goods or services; (This may include a loan provided to a candidate by a financial institution at terms and conditions which are more favourable than that provided by the financial institution to other individuals. It may also include a loan provided by a person other than a financial institution where the interest charged is less than the lowest rate available from a financial institution);
the net value of a contribution made to a fund-raising event organised for the purpose of raising funds for a candidate. Where a fund-raising event is organised by a candidate's political party to raise funds for the party, contributions to the event are considered to be a donation to the party, even if the funds are subsequently used to support the candidate. However, where an event is organised by a party for the purposes of raising funds for a candidate, the party may be regarded as an intermediary accepting donations on the candidate's behalf (see below) and the donations regarded as having been made to the candidate.
Section 22(2)(c) of the Act provides that a donation made to a candidate at a Dáil general election through an intermediary is deemed to be a donation made to the candidate. Therefore, a fund-raising committee (e.g. "Friends of xxx") is regarded as an intermediary accepting donations on a candidate's behalf. If, however, the funds are retained by the fund raising group and are not passed on to the candidate, the group is regarded as a third party and must register as such with the Standards Commission (see chapter 5).
Section 22(2)(c) also provides that where a donation made to a candidate is passed on by a candidate to his/her political party (whether party headquarters or a local branch) and he/she receives a written acknowledgement of the donation from the party, the donation is deemed to be a donation to the political party and not to the candidate.
Section 22(2)(d) of the Act provides that donations from the same person must be aggregated and treated as a single donation for disclosure purposes and for the purposes of observing the maximum acceptance limit for donations (see 2.1(iv) below).
There are a number of items provided for in section 22(2)(b) of the Act which feature during a Dáil general election and which are not regarded as a donation to a candidate including:
The free post service provided by An Post to candidates.
Any payment, service or facility provided to a candidate out of public funds by virtue of the candidate being a TD, Senator, MEP or the holder of another elective or public office (e.g. member of a local authority). The judgment of the High Court and Supreme Court in the Desmond Kelly case concerning this particular provision applies only in relation to the accounting for the use of such facilities as election expenses. The judgment did not alter the provisions of the Act with regard to the use of such facilities not being regarded as a donation. It is important to note, however, that this particular provision applies only where the candidate, by virtue of his/her position or office, is entitled to use the services/facilities provided. For instance, if a candidate who is not a Member of the Houses of the Oireachtas is provided with the free use of Oireachtas facilities (e.g., envelopes, telephones) this is regarded as a donation to the candidate from the Member who has provided the facilities.
A free service provided by an individual, including use of the individual's motor vehicle, private telephone, etc., where the service provided is not part of the individual's work or business. It should be noted that this does not apply to a free service (including the use of a motor vehicle) which is provided by a company or business.
A service provided 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.
Expenses incurred or payments made by a political party on behalf of a candidate. It is important to note that money given directly to a candidate by a political party is regarded as a donation to a candidate. Election expenses incurred or payments made by a support group, other than a registered political party, on a candidate's behalf are also regarded as donations to a candidate. In each case the contributions are subject to the disclosure and maximum acceptance limits applying to candidates.
(ii) Disclosure of Donations
Section 24(2)(a) of the Act provides that each unsuccessful candidate at the Dáil general election must furnish a Donation Statement to the Standards Commission, within 56 days of polling day. The Donation Statement shall be in a form directed by the Standards Commission and must be accompanied by a Statutory Declaration. The Statutory Declaration must be witnessed by either a practising Solicitor, a Commissioner for Oaths, a Peace Commissioner or a Notary Public.
Only donations with a value of more than €634.87 are required to be disclosed. If no such donation was received, the candidate furnishes a "nil" return. Where a donation in excess of €634.87 is received, the value and nature of each donation together with the name, a description and the postal address of the donor must be disclosed.
Successful candidates at the election are required, as members of Dáil Éireann, to furnish to the Standards Commission, by 31 January each year, an annual Donation Statement and accompanying documentation. The Donation Statements furnished to the Standards Commission in respect of 2007 by members of Dáil Éireann must include details of any donations received by them during 2007 in relation to the Dáil general election, and must be furnished to the Standards Commission by 31 January 2008.
(iii) Opening and maintenance of political donations accounts
A candidate at a Dáil general election who receives a monetary donation the value of which exceeds €126.97, must open and maintain a political donations account in a financial institution in the State. The candidate must lodge the initial donation and any further monetary donations, of whatever value, received by him/her to this account.
A candidate who opens a political donations account or who already holds a political donations account must furnish a Certificate of Monetary Donations (CMD) when furnishing his/her Donation Statement. On the CMD the candidate certifies that all monetary donations were lodged to the account and all withdrawals from the account were used for political purposes. The Certificate must be signed by the candidate and is accompanied by a separate Statutory Declaration.
The CMD must also be accompanied by a statement provided by the financial institution where the account is held (referred to hereafter as a "bank statement"). 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 and ending on polling day at the election. Where candidates already held a political donations account it was not necessary for them to open a separate account specifically for the general election. Such candidates were also only required to furnish a bank statement in respect of the period 1 January 2007 to polling day.
(iv) Prohibited Donations
Anonymous donations
A candidate at a Dáil general election may not accept an anonymous donation exceeding a value of €126.97. For a donation in excess of €126.97 to be accepted the candidate must know or be able to establish the name and address of the donor. If a prohibited anonymous donation is received by a candidate, the candidate must, within fourteen days of its receipt, notify and remit the donation (or its value) to the Standards Commission.
Foreign donations
A foreign donation is a donation, of whatever value, given by an individual (other than an Irish citizen) who resides outside the island of Ireland or a donation given by a body corporate or unincorporated body of persons 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. A candidate at a Dáil general election must not accept a foreign donation.
If a foreign donation is received by a candidate it must, within 14 days of its receipt, be notified and remitted to the Standards Commission. As an alternative, the candidate may return the donation to the donor. If the donation is returned, the candidate must keep a written record of that return for the purpose of its being furnished to the Standards Commission, if required.
Donations in excess of the maximum prescribed limit
The maximum value of donation(s) which a candidate at the Dáil general election may accept from the same person in the same calendar year is €2,539.48. It should be noted that this maximum limit also applies to monetary donations received by a candidate from his/her political party. The maximum acceptance limit does not apply, however, to a donation of the use of an office to a candidate. (Where more than one office is donated, the candidate must nominate whichever office the maximum acceptance limit will not apply.)
Where a donation in excess of the maximum prescribed limit is received the candidate must notify and remit the excess amount to the Standards Commission within 14 days of its receipt. As an alternative, the candidate may return the excess amount to the donor and keep a written record of that return for the purpose of its being furnished to the Standards Commission, if required.
2.2 - Donation Statements and Certificates of Monetary Donations received from unsuccessful candidates
The Standards Commission produced a Donation Statement/Statutory Declaration form (GE/07/DS) for use by unsuccessful candidates at the Dáil general election. It also produced a Certificate of Monetary Donations/Statutory Declaration form (GE/07/CMD) for use by those unsuccessful candidates who had been required to open a political donations account. Candidates who were not required to open a political donations account were asked to confirm this on the CMD form but were not required to complete the Statutory Declaration which accompanied the CMD form.
On 13 June 2007 a Donation Statement/Statutory Declaration form and Certificate of Monetary Donations/Statutory Declaration form issued to each of the (301) unsuccessful candidates. Two candidates Mr. Colm Callanan (CSP) and Mr. Noel O'Gara contested the election in more than one constituency (Mr. Callanan contested two constituencies while Mr. O'Gara contested four constituencies). Mr. Callanan and Mr. O'Gara were only required to complete one Donation Statement in respect of their candidacies and were not required to complete separate Donation Statements for each of the constituencies they contested the election in. Completed Donation Statements and Certificates of Monetary Donations were required to be returned to the Standards Commission by 19 July 2007.
Receipt of Donation Statements
207 of the 301 unsuccessful candidates returned their Donation Statements by the statutory deadline of 19 July 2007. It is an offence under section 25(1)(c) of the Act to fail to furnish a Donation Statement / Statutory Declaration form and, where required to, a Certificate of Monetary Donations / Statutory Declaration form and accompanying bank statement by the statutory deadline. It is, however, the practice of the Standards Commission not to refer such matters to the Director of Public Prosecutions (DPP) unless, after a significant period of time and, having issued a number of reminders, the Donation Statement remains outstanding.
In that regard on 27 July, the Standards Commission sent a reminder to 54 candidates whose Donation Statements were still outstanding. A second reminder issued on 3 August 2007 to 44 candidates whose Donation Statements had still not been furnished. Each of these reminders referred to the offence under section 25(1)(c) of the Act for failure to furnish a Donation Statement. A final reminder issued on 13 August to 29 candidates who had yet to furnish a Donation Statement. This reminder informed those candidates that if a Donation Statement was not received within seven days of the date of that letter the Standards Commission would consider referring the matter to the DPP/Gardaí for an investigation of the offence under section 25(1)(c) of the Act.
On 29 August 2007 the Standards Commission sent files to Garda Headquarters concerning the following eight candidates: (Proceedings for an offence under section 25 of the Act may only be taken by, or with the consent of, the DPP. The Standards Commission has previously been advised by the Office of the DPP to correspond directly with Garda Headquarters in relation to such offences).
Mr. Tom Harpur (Green Party, Wexford)
Mr. Gino Kenny (Non Party, Dublin Mid West)
Mr. Thomas King (Non Party, Galway West)
Mr. Gerard Linehan (Non Party, Cork South Central)
Councillor Ann Marie Martin (Fine Gael, Dublin South Central)
Councillor Mags Murray (Progressive Democrats, Dublin West)
Mr. Jim Tallon (Non Party, Wicklow)
Ms. Madeleine Taylor Quinn (Fine Gael, Clare)
On 3 September 2007 the Standards Commission referred a further file to Garda Headquarters in respect of Mr. Raymond Kelly (Non Party, Dublin South West).
Donation Statements and where required Certificates of Monetary Donations and bank statements were subsequently received from Mr. Harpur, Mr. Kenny, Mr. Linehan, Ms. Martin, Ms. Murray, Ms. Taylor Quinn and Mr. Kelly. The Standards Commission notified Garda Headquarters of the receipt of the statutory documentation in each case. Donation Statements have still not been received from either Mr. King or Mr. Tallon.
2.3 - Consideration of Donation Statements
In accordance with section 4(1) of the Act, the Standards Commission considered the Donation Statements furnished by each of the unsuccessful candidates at the Dáil general election.
The following seven candidates who furnished Donation Statements disclosed that they had received a donation valued in excess of €2,539.48 in relation to the election:
Siobhán Ambrose (Fianna Fáil, Tipperary South)
Paudie Coffey (Fine Gael, Waterford)
Ben Doyle (Progressive Democrats, Dublin South Central)
Pat Fitzgerald (Fianna Fáil, Wicklow)
Séamus Fitzgerald (Fine Gael, Kerry South)
Cecelia Keaveney (Fianna Fáil, Donegal North East)
Phil Prendergast (Labour, Tipperary South)
In each case, where it was not apparent that the candidates had returned the excess donation, the Standards Commission instructed the candidates concerned to either remit the amounts in excess to the Standards Commission or, alternatively, to confirm that the amounts concerned had been returned to the donors. By failing to return the excess donations to the donors within 14 days of receipt, the above candidates had contravened the provisions of section 23A(1) of the Act and may have committed an offence under section 25(1)(b) of the Act. However, where a person otherwise complies with the Act, i.e. by either returning or remitting the excess donation, it is the practice of the Standards Commission not to take any further action in terms of referring the matter to the DPP. In most cases the candidates complied with the Standards Commission's instructions. However, it was necessary to issue a reminder letter to Mr. Ben Doyle informing him that unless the appropriate action was taken in relation to the prohibited donations, the Standards Commission would consider referring the matter to the DPP. Mr. Doyle subsequently confirmed to the Standards Commission that the excess donations had been returned to the donors.
A number of candidates disclosed donations which they were not required to disclose either by virtue of the fact that the donations were below the disclosure threshold or were the total proceeds of a fund-raising event (only individual contributions to fund-raising events exceeding a net value of €634.87 must be disclosed). In each case the Standards Commission informed the candidates that the donations concerned could be removed from their Donation Statements. Most of the candidates, however, chose not to amend their Donation Statements.
The Standards Commission was not informed of the receipt of any anonymous donations. However, there were a number of instances where the full contact details for donors had not been provided on the Donation Statement. The Standards Commission wrote to the candidates concerned requesting full contact details for the donors concerned. In most cases this information was provided. In one instance, however, the candidate informed the Standards Commission that he was not aware of the donor's address. The Standards Commission advised the candidate that if the donor's address could not be established, the donation, which was in excess of €127 would have to be regarded as a prohibited anonymous donation and as such would have to be remitted to the Standards Commission. An address for the donor was subsequently provided. One candidate disclosed a donation on his Donation Statement the value of which was less than €127.00. The candidate did not provide a name and address for the donor. However, as the value of the donation was less than €127.00, the Standards Commission did not pursue the matter with the candidate.
No candidate informed the Standards Commission of the receipt of a foreign donation. Some of the Donation Statements disclosed donations from persons not resident in the island of Ireland. In each case the Standards Commission received the necessary confirmation from the candidate that the persons concerned were Irish citizens and that the candidates were not prohibited from accepting donations from them.
103 candidates disclosed donations on their Donation Statements. Donations totalling €531,379.82 were disclosed. (€6,701.60 of this was returned to the donors). 196 candidates furnished a "nil" Donation Statement. Details of the donations disclosed by unsuccessful candidates at the Dáil general election are contained at Appendix 1 to this report (pdf 279kb). Candidates who furnished "nil" Donation Statements are not included in Appendix 1.
The Standards Commission is still pursuing the correct completion of a Donation Statement/Statutory Declaration with Ms. Evelyn Cawley (non-party, Wicklow). Ms. Cawley's original Donation Statement was returned in order that details of donors who had made donations below the disclosure threshold could be removed. The amended Donation Statement has yet to be received. If an amended Donation Statement is not received, the Standards Commission will have to consider whether to refer Ms. Cawley to the DPP for possible prosecution of the offence of failing to comply with the provisions of section 24(2)(a) of the Act.
2.4 - Consideration of Certificates of Monetary Donations and Bank Statements
Despite the fact that the requirement to open a political donations account has been in effect since 1 January 2002 and was explained in great detail in the Standards Commission's Guidelines for the Dáil general election, a number of candidates failed to comply with the requirements of the Act either by
failing to open a political donations account,
having opened a political donations account or operated an existing political donations account failed to lodge monetary donations to the account,
lodging monetary donations to and making payments for political purposes from an existing personal account
using the local party organisation's account as their political donations account and providing a CMD / Bank Statement in respect of this account. (A party's political donations account should not be used by a candidate as his/her political donations account unless the candidate is passing all monetary donations to the party in which case the donations are regarded as donations to the party and not to the candidate).
using a credit union account as a political donations account. A credit union is not included in the definition of a "financial institution" contained in the Act.
While it is an offence to fail to furnish, when required, a Certificate of Monetary Donations and Statutory Declaration or a statement from a financial institution, or to knowingly furnish any one of these documents which is false or misleading in a material respect, there is no offence or penalty for failing to open a political donations account in the first place. This is an anomaly which the Standards Commission has referred to in previous reports on the disclosure of donations and in the review of legislation document provided to the Minister for the Environment, Heritage and Local Government in December 2003, and which has yet to be addressed.
The main reason given by unsuccessful candidates for failing to open a political donations account (normally non-party candidates or candidates from the smaller political parties) is that they were not aware of the requirement to do so. Other candidates claimed to have received a small number of donations and to have used these donations immediately to pay for election expenses. In view of the fact that there is no specific offence or penalty in the legislation for failing to open a political donations account, it was not possible for the Standards Commission to take any further action in relation to these candidates.
In a number of cases the Standards Commission had difficulty in obtaining Certificates of Monetary Donations or bank statements from unsuccessful candidates who had indicated that they had opened political donations accounts. Following protracted correspondence and telephone contact, some such Certificates/statements were eventually received.
The Standards Commission is still seeking a bank statement from one candidate (Councillor Jim McGarry, Labour Party, Sligo / North Leitrim). If the bank statement is not received, the Standards Commission will have to consider whether to refer Cllr. McGarry to the DPP for possible prosecution of the offence of failing to furnish a bank statement by the statutory deadline of 19 July 2007. The Standards Commission has already pointed out in previous reports that it is of the view that it does not seem reasonable that a person who opened a political donations account but who failed to furnish the necessary supporting documentation to the Standards Commission, should be prosecuted whereas a person who did not open a political donations account in the first place is not liable to prosecution under the Act. In that regard the Standards Commission considers it imperative that an offence be provided for failure to open a political donations account when required to do so.