3.1 - Definition of election expenses
Section 31(1) of the Act provides that election expenses are those and only those set out in paragraph 1 of the Schedule to the Act, which are incurred on the provision of property, goods or services for use at the election during the election period (see paragraph 3.7 for the definition of election period) in order:
to promote or oppose the interests of a political party or the election of a candidate, or
to present the policies of a political party or the comments of a political party on the policies of another political party or a candidate at the election, or
to solicit votes for or against a candidate at an election, or
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 another candidate at the election, or
otherwise to influence the outcome of the election.
The provision of property, goods or services free or below cost which are used at the election during the election period is regarded as an election expense and must be accounted for at its full commercial price less any normal or general discount which may be available.
3.2 - Matters which are not regarded as election expenses
There following items which may feature during a Dáil general election campaign are not regarded as election expenses:
the cost of purchasing copies of the register of electors;
the reasonable living expenses (including accommodation) of a candidate and volunteers working on his/her behalf. In addition to accommodation costs, spending of up to €50 per person per day on refreshments, etc., was permitted and did not have to be accounted for.
"minor expenses" i.e. any sum disbursed by any individual out of his/her own resources which have been "lawfully incurred" and do not exceed €126.97 in any one payment;
election expenses incurred at a previous Dáil, European Parliament or local election which were disclosed in an Election Expenses Statement furnished to the Standards Commission or to a local authority.
the free post service provided by An Post to candidates;
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 vehicle) which is provided by a company or business;
a service provided at an election by an employee of a political party, including use of the individual's motor vehicle, where the employee is not in receipt of any reward or benefit in kind other than his/her normal remuneration (including recoupment of expenses) for that service. 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;
normal media coverage and the transmission on radio or television of a broadcast on behalf of a candidate or a political party. This does not cover any production or other costs associated with a transmission on radio or television;
the use of offices which are owned by a political party and are made available to a candidate for use at the election;
the services of an accountant, solicitor etc., whether paid or not, which were engaged for the purposes of ensuring compliance with the requirements of the Act;
costs incurred to facilitate a person's candidacy at the election i.e. photographs for ballot papers, childcare costs etc..
3.3 - Election Expenses the costs of which were originally met out of public funds
Arising from the judgment in Kelly v. Minister for the Environment & Ors 2002 (4 I.R. 191), where property, services or facilities were used for electoral purposes during the election period and the costs were originally met out of public funds, such costs must be accounted for as election expenses at their full commercial value. In its annual report for 2006, the Standards Commission noted that the use of public funds for electoral purposes is a major issue which requires to be re-evaluated in consideration of future changes to the electoral law.
The Standards Commission was cognisant of the fact that some candidates at the election who were already public representatives (e.g., MEPs, Senators and local authority members) might be required to communicate with their constituents during the election period. Similarly, outgoing members of the Dáil might also have residual constituency business to conduct.
The Standards Commission was also made aware by the Houses of the Oireachtas Commission that, in accordance with the Houses of the Oireachtas Commission Act 2006, it had introduced statutory guidelines on the use of Oireachtas facilities for outgoing members of the Dáil. The purpose of these guidelines was to:
identify and notify to members the services and facilities which would or would not be available to them following a dissolution of the Dáil; and
set out how members would be required to certify and reimburse the Oireachtas Commission for use of publicly funded services and facilities other than in respect of duties as a public representative.
The guidelines mainly concern those services and facilities which continued post-dissolution, i.e., secretarial staff, use of office and ICT equipment, access to Leinster House offices and use of telephone and copying facilities. The guidelines also cover the use of facilities which ceased to be available on dissolution but which could be retained for use following dissolution, e.g., material printed in the Leinster House printing facility, pre-paid envelopes and stationery.
As noted in its annual report for 2006, the Standards Commission is of the opinion that there is a certain ambiguity as to what constitutes reckonable expenditure for electoral purposes and other public representative activity. In view of this, and having regard to the guidelines issued by the Houses of the Oireachtas Commission, the Standards Commission considered it necessary, therefore, to differentiate between the use Oireachtas facilities (including staff) in carrying out reasonable constituency business and the use of such facilities for electoral purposes. In its guidelines for the election the Standards Commission advised that during the election period, where facilities the costs of which were met from public funds were used for the purpose of any form of unsolicited communication to any of the electorate in the constituency, the facilities would have to be regarded as having been used for electoral purposes and the costs accounted for (at their full commercial value) as an election expense. This would also apply to unsolicited material issued by elected representatives, other than the candidate, where the material either promotes or opposes a candidate or otherwise seeks to influence the outcome of the election.
To address the issue of outgoing Members' residual constituency business, the Standards Commission advised that where a new enquiry was raised with a candidate (i.e., an enquiry which had not been raised with the candidate prior to the election) while he/she was canvassing and Oireachtas facilities (including staff) were used for the purposes of responding to the enquiry, the facilities would be regarded as having been used for electoral purposes.
Prior to the election campaign, the Standards Commission also received a number of enquiries from outgoing Members regarding the use of Members' staff and in particular the taking of leave by staff. The Standards Commission published additional guidelines on its website which dealt specifically with this issue. The Standards Commission advised that if a member of a Minister's/Minister of State's staff or an Oireachtas Member's staff was engaged in his/her normal duties during the election period and was not providing a service which was for electoral purposes, then the cost of carrying out such activities was not regarded as an election expense. The Standards Commission also advised that where a member of staff took annual leave to work on a Ministers'/Members' election campaign on a voluntary basis during the election period, the work carried out by them would be deemed to have been carried out as a free service and, notwithstanding the fact that this work may be similar to their normal work, (which could be regarded as a benefit-in-kind) the cost of their salaries while working voluntarily would not be regarded as election expenses for the purposes of the Act. The Standards Commission recommended that proper records of holidays accrued and taken by staff should be maintained. In providing this advice the Standards Commission was mindful that The High Court, in the Kathy Sinnott petition of 2003, had established that, where a person paid from public funds chose to take paid annual leave in order to work in an unpaid volunteer capacity that person's salary was not reckonable as an election expense.
It was a matter for the election agent (or the national agent of a political party, if appropriate) and the candidate, in consultation with the provider of the property, services or facilities, to determine the value of such usage for electoral purposes and to account for this in the relevant Election Expenses Statement. While the Standards Commission acknowledges that charging for facilities is a matter between the candidate and the provider concerned in the first instance, it is of the view that there is a need for clarity as to how the electioneering element of the use of these facilities is assessed by the candidates themselves. As suggested in its annual report for 2006, the Standards Commission is of the opinion that providing such clarity within the ambit of the electoral code rather than as part of other legislation which patently has quite a separate purpose (the Houses of the Oireachtas Commission Act 2006) would better ensure a level playing pitch for all candidates.
3.4 - Appointment of candidates' election agents
In accordance with section 28 of the Act each candidate at a Dáil general election is required to appoint an election agent for the purposes of incurring election expenses on his/her behalf. A candidate may revoke the appointment of an election agent or an election agent may resign as a candidate's election agent at any time before or after polling day (but not after an Election Expenses Statement has been furnished). A candidate may act as his/her own election agent.
The candidate's election agent is the only person who can incur election expenses on the candidate's behalf at the election. (A political party's national agent may also incur expenses on a candidate's behalf from the amount assigned to the party by the candidate - see paragraph 3.5). The election agent can authorise other persons, including the candidate, to incur election expenses on his/her behalf. In many cases election agents authorised candidates and/or directors of elections to incur a specified amount of election expenses. The election agent must account for all expenses incurred by such "authorised persons". The fact that all election expenses incurred on a candidate's behalf must be authorised by his/her election agent is a fundamental principle underpinning this part of the Act. It allows the election agent to control election expenditure incurred on the candidate's behalf and to ensure that the spending limit available to the election agent is adhered to.
Section 31(8A) of the Act provides that, where a candidate has incurred election expenses before the appointment of an election agent, he/she must provide details of the expenses incurred to the election agent. It is an offence for the candidate to fail to provide such information to an election agent in sufficient time to allow the election agent to furnish an Election Expenses Statement in accordance with the requirements of section 36 of the Act. During and after the election campaign some election agents informed the Standards Commission that they had experienced difficulties in securing details from candidates of election expenses incurred by them. The Standards Commission advised the election agents to inform the candidates of their legal obligations under section 31(8A) of the Act. On one occasion it was necessary for the Standards Commission to write to a particular candidate regarding the requirements of section 31(8A) and ultimately to refer a file on the matter to the Gardaí/DPP (see paragraph 3.14).
The procedures set out in section 28 of the Act require the Returning Officers for each Dáil constituency to notify the Standards Commission of all candidates contesting the election in the constituency and details of their election agents. Returning Officers are also required to inform the Standards Commission if they are notified by a candidate of a change of election agent. The Standards Commission must accept the information as provided by the Returning Officer and may only accept an Election Expenses Statement which has been completed by the person notified as the candidate's election agent.
At the 2002 general election it was not uncommon for the Standards Commission to receive an Election Expenses Statement which had been completed by someone other than the person notified as the candidate's election agent. While the official nomination papers inform candidates of the requirement to appoint an election agent there is no provision for candidates to include details of their election agents on the nomination papers. Having made enquiries with the Department of the Environment, Heritage and Local Government the Standards Commission was informed that it would not be possible to include the election agents details on the nomination papers. To facilitate the provision of correct election agent details, the Standards Commission decided to produce a form which it issued to each Returning Officer. Returning Officers were requested to ask candidates to complete this form when submitting their nomination papers. Most Returning Officers complied with this request and this ensured that the Standards Commission had a written record of the person notified to the Returning Officer as the candidate's election agent.
The main political parties generally provide the Standards Commission with details of their candidates and election agents in advance of the election. This facilitates the timely provision of guidelines to these candidates and their election agents. However, in the case of candidates of some of the smaller political parties and many of the non-party candidates, the first notification the Standards Commission receives regarding their candidacy, or the appointment of an election agent, is from the Returning Officer. To ensure that its guidelines were circulated as quickly as possible to these candidates and election agents, the Standards Commission wrote to each returning officer on 27 April 2007 asking that he/she fax or e-mail details of each candidate contesting the election in the constituency and their election agents to the Standards Commission as soon as possible after nominations for the election closed (12.00 noon on 8th May 2007). The Standards Commission wishes to thank Returning Officers for complying with its request regarding usage of the above form and the provision of the relevant information in a timely manner.
Despite improvements on the 2002 general election, the Standards Commission continues to have concerns regarding the provisions of section 28 of the Act. In particular the Standards Commission believes that the term "election agent" is causing confusion and needs to be amended in the Act. Section 59 of the Electoral Act 1992 (the 1992 Act) also provides for the appointment of "election agents" to assist the candidate generally in relation to a Dáil general election and for the appointment of deputy agents to be present on the candidate's behalf for the counting of votes and for other specific purposes set out in the 1992 Act. The Standards Commission has found that some candidates associate the term "election agent" as set out in the 1997 Act with these functions and notify such "agents" as their election agent even though these persons have no function in relation to controlling expenses incurred on the candidate's behalf at the election. The Standards Commission may only accept an Election Expenses Statement which has been completed by the person notified to it as the candidate's election agent. When incorrect election agent details are notified to the Returning Officer, the time and expense invested by the Standards Commission and the political parties themselves, in familiarising election agents with the requirements of the legislation is wasted. The Standards Commission has found that it is election agents who are unfamiliar with the requirements of the legislation who often have most difficulty in correctly completing their Election Expenses Statement forms. The Standards Commission recommends that the term "election agent" as set out in the Act should be amended to either "election spending accounting officer" or "election spending agent".
As with the 2002 general election the Standards Commission received a number of Election Expenses Statements which had been completed by someone other than the person notified as the candidate's election agent. As stated above, notification of a change of election agent must be routed through the Returning Officer for the constituency. This causes an unnecessary level of bureaucracy for all concerned and delays the Standards Commission in finalising these particular Election Expenses Statements. In view of the fact that the election agent's details do not form part of the nomination papers, the Standards Commission considers that it would be preferable if candidates were required to notify the Standards Commission directly of the appointment or change of an election agent.
3.5 - Appointment of political parties' national agents
In accordance with section 28(1) of the Act each of the political parties was required to appoint a national agent for the purposes of incurring expenses on behalf of the party at the election. The Act requires that the Standards Commission be notified of the appointment of a national agent not later than the last day for receiving nominations at the election (8 May 2007). If a political party has not provided the relevant information by the last day for withdrawing nominations (9 May 2007), the party's appropriate officer (appointed under section 71 of the Act) is deemed to have been appointed as the party's national agent. If no appropriate officer stands appointed, the leader of the party is deemed to be the party's appropriate officer and as such to have been appointed as the party's national agent.
Nine political parties had candidates contesting the Dáil general election. Eight of those parties notified the Standards Commission of the appointment of a national agent. As the Christian Solidarity Party did not notify the Standards Commission of the appointment of a national agent, its appropriate officer was deemed to be the party's national agent. In accordance with section 6(a) of the Act, the Standards Commission published in Iris Oifigiúil, on 14 May 2007, the names and addresses of the national agents appointed, or deemed to have been appointed, by each of the political parties.
The national agent is the only person who can incur election expenses on behalf of the party out of the spending limit assigned to it by its candidates (see 3.6 below). 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. 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.
Spending by the national agent out of the amount assigned to the party can be either on the candidates or at national level. 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. Where election materials (e.g., posters, billboards) featured a party's leader and its candidates, the expenditure was deemed to have been incurred on the candidates concerned and not the party leader. Spending by the national agent on a particular candidate cannot exceed the amount assigned to the party by that candidate. No part of a candidate's spending limit can be transferred from one party candidate to another in a constituency.
National spending is not directly related to the promotion of candidates in constituencies. It generally includes a reference to the party, its leadership, its policies or election issues in a national context and by its content and geographic extent is aimed at attracting votes in the country as a whole. Such spending is usually on items like the party manifesto, party political broadcasts, tours by the party leader, etc. Where party political broadcasts featured members of the party leadership or party spokespersons, the expenses incurred were regarded as national spending and not regarded as having been incurred on the individual candidates.
3.6 - Spending Limits
Section 3(1) of the Act provides that the Minister for the Environment, Heritage and Local Government may by order increase, in line with the Consumer Price Index (CPI), the statutory spending limits at Dáil elections. On 14 March 2007, the Minister, having regard to changes in the CPI since September 2001 (the last time the spending limits were increased) made an order (Electoral Act 1997 (Limitation and Reimbursement of Election Expenses at Dáil Election) Order 2007 (S.I. No. 113 of 2007)) which increased the statutory spending limits as follows:
3 seat constituency - increased from €25,394.76 to €30,150.00
4 seat constituency - increased from €31,743.45 to €37,650.00
5 seat constituency - increased from €38,092.14 to €45,200.00
The statutory spending limit is for each candidate in a constituency and is inclusive of VAT. The statutory limit represents the maximum spending allowed on a candidate in a constituency and includes all spending by the election agent and a political party (both head office and local organisation) on a candidate. No separate or additional spending by a political party on a candidate over and above that which has been assigned to the party by the candidate is allowed.
A candidate contesting the election on behalf of a political party could agree in writing, with his/her political party, an amount of his/her spending limit which would be assigned to the party for spending by the party's national agent. This could be up to 100% of the candidate's limit. There is, however, no legal obligation on a candidate make any assignment to the party. If a candidate refused to assign any part of the statutory spending limit to the party, the party could not incur any expenses on that candidate at the election (unless authorised to do so by the candidate's election agent). The candidate's election agent can only spend the amount of the statutory limit for that candidate which remains after the assignment to the party has been made.
The Act does not specify when the assignment must be made or preclude a renegotiation of the assignment at any stage during or indeed after the election campaign. The Standards Commission advised in its guidelines that assignments should be agreed before any expenses are incurred. While this was generally the practice, in many cases assignments were re-negotiated during or after the election campaign. It is not clear to the Standards Commission whether the ability to renegotiate an assignment is intended as part of the Act. The Standards Commission is satisfied, however, that legally it is not in a position to refuse to accept a renegotiation of an assignment even after an Election Expenses Statement has been furnished to it. There were a number of instances where the assignment was renegotiated after the statutory deadline for receipt of Election Expenses Statements. In most cases the renegotiation was required because the election agent had exceeded the spending limit available to him/her after the assignment had been made to the party.
The Act specifically provides, however, that the agreed assignment must be made in writing between a candidate and the party. Where assignments were renegotiated a new written agreement had to be drawn up and election agents were required to furnish a copy of the written agreement with their Election Expenses Statements.
3.7 - The election period
The spending limit at a Dáil general election applies to all expenses incurred and payments made in providing property, goods or services which are used for electoral purposes during the "election period". Section 31(3)(a) of the Act provides that the election period at a Dáil general election is from the date of the dissolution of the Dáil (29 April 2007) up until polling day at the election (24 May 2007), both dates included.
Expenses which are incurred or payments which are made at any time before the date of dissolution of the Dáil on property, goods or services which are used during the election period must be accounted for. The exception to this is the cost of an opinion poll or other similar survey which is taken within the period of 60 days before polling day. Such cost is regarded as an election expense and must be accounted for.
If expenses were incurred or payments were made on property, goods or services which were intended to be used but were not used, or only partly used, during the election period it was not necessary to account for the unused part. Similarly, it was not necessary to account for expenses incurred or payments made in respect of property, goods or services which were used before or after the election period. Some examples of this might be:
promotional material circulated by candidates/political parties before the election period commenced;
insurance or rental costs applying to a campaign premises or vehicles in so far as the costs related to a period before and/or after the election period;
"Thank you" notices circulated after the election;
The costs of removing posters after the election.
In its guidelines for the general election the Standards Commission advised that advertisements which appeared in newspapers, magazines or other publications and which carried a publication date which was during the election period would be regarded as election expenses. If the publication date was before or after the election period, the advertisements would not be regarded as election expenses. The reason for this advice is that many local newspapers are available for purchase before their date of publication. It is not possible for the Standards Commission to ascertain the date of availability of every local newspaper. The publication date of the paper, therefore, is taken as the basis for determining whether an advertisement is used during the election period or not. It was suggested to the Standards Commission that a particular newspaper, which had altered its publication date, may have done so to ensure that advertisements it carried during the final week of the election campaign would not be regarded as election expenses. It was not possible for the Standards Commission to take any action in this regard. It may, however, prompt the Standards Commission to re-consider its advice in relation to newspaper advertisements.
During the election there was considerable evidence of and much comment about pre-election spending by parties and candidates. Such expenditure was not required to be accounted for if the materials concerned were not used during the election period. Legitimate concerns were expressed that the "front-loading" of campaign expenditure diminished the effectiveness of the expenditure limits.
The Standards Commission has repeatedly called for a review of "the election period" at Dáil and European elections. This is particularly important where a Dáil general election is held after a government has run its full term of office. (Where a "snap" election is called the "frontloading" of expenditure is unlikely to arise). In its review of the Act in 2003, the Standards Commission stated that "Given the level of debate and comment around this issue (the election period) and the potential for such to fundamentally undermine the perceived effectiveness of the legislation, the Standards Commission is of the view that consideration should be given to whether, in respect of a specified period prior to commencement of the legally defined election period, there is a case for imposing some accountability in the context of the spending limits." This view has been reinforced by the Standards Commission's experience of the 2007 election campaign.
The purpose of expenditure limits is to create a level playing field for all candidates and to prevent a "free for all" in terms of election spending. The Standards Commission considers this to be a fundamental principle of the Act. Limiting election expenditure reduces the dependence of candidates and political parties on political contributions to fund election campaigns and is recognised by the Council of Europe and the Group of Member States against Corruption (GRECO) as an effective tool in combating corruption. It is now clear that the public perception of the legislation is that it is not achieving its stated aim of limiting expenditure at elections by political parties and candidates. The Standards Commission is in no doubt that the lack of an effective election period at a Dáil general election undermines the purpose of having expenditure limits in place and runs the risk of bringing the provisions of the Act governing election expenditure into disrepute. There is the danger that if the issue of the election period at Dáil and European elections is not satisfactorily addressed the accounting for expenditure at such elections will be perceived as little more than a paper exercise.
The key issue in determining the duration of the election period is to decide at what point does expenditure on activity of an electioneering nature which occurs prior to dissolution have an impact in terms of voter awareness and should, therefore, be regarded as election spending. The Standards Commission, while recognising a need for new candidates to build a profile in a constituency, considers that expenditure on goods, property or services used for electoral purposes during a period of 2/3 months prior to polling day could reasonably be construed as intended to elicit support at the election for a candidate or political party. A record of expenditure would have to be maintained so that, if necessary, it could be accounted for by the relevant agent after the election. Once the three month period had expired in relation to a particular item of expenditure and the Dáil had still not been dissolved, the record in respect of that item would no longer require to be retained. Candidates would, therefore be required to have their election agents in place well in advance of the election. The Standards Commission is aware that this may be more onerous on candidates and election agents but is of the opinion, nevertheless, that this approach merits consideration and would generally be welcomed if it was to help achieve the intended purpose of this part of the Act - the limitation of election expenditure.
3.8 - Issuing of Election Expenses Statement forms
An Election Expenses Statement form was required from the election agent of each candidate who contested the general election. A number of election agents acted for more than one candidate. In such cases, the election agent was required to furnish a separate Election Expenses Statement form in respect of each candidate. 466 individual candidates contested the election. Mr. Colm Callanan (CSP) contested the election in two constituencies and Mr. Noel O'Gara (Non Party) contested the election in four constituencies. Mr. Callanan and Mr. O'Gara were required to complete an Election Expenses Statement form for each constituency in which they contested the election. In all, 470 election agent Election Expenses Statement forms were required to be furnished to the Standards Commission. An Election Expenses Statement form was also required in respect of the nine political parties which had candidates contesting the election. A total of 479 Election Expenses Statement forms, therefore, were required to be furnished to the Standards Commission.
Section 36(2) of the Act provides that an Election Expenses Statement shall be in a form directed by the Standards Commission. A sample election agent Election Expenses Statement form was included as an Appendix to the published guidelines. The form which subsequently issued to election agents (GE/07/EES/EA) contained some minor changes to the sample form. The Standards Commission also produced Election Expenses Statement forms for use by the national agents of political parties. The form in each case was tailored to include the name, and other details, of each candidate of the party who had contested the election.
The Election Expenses Statement forms for both election agents and national agents, required election expenses, where the costs were originally met out of public funds, to be accounted for separately. The purpose of this was to allow the Standards Commission to provide details of such costs and, if necessary, to reconcile these amounts with the reimbursements made by outgoing Members to the Houses of the Oireachtas Commission for use of such facilities for electoral purposes.
An Election Expenses Statement Form was issued by registered post to each election agent between 8th and 12th June 2007 and to the national agents of political parties on 18th June 2007. An explanatory note providing contact details for staff of the Standards Commission secretariat accompanied each form. Agents were advised to contact the secretariat if they were unsure about any aspect of the form. Staff of the secretariat also available to meet with election agents who required advice on the completion of the form. The forms were required to be furnished by the statutory deadline of 19 July 2007.
3.9 - Receipt of Election Agents' Election Expenses Statement forms
354 election agent Election Expenses Statement forms were received by the statutory deadline of 19 July 2007. As of 26 July 2007, 64 Election Expenses Statements had still not been received. On that date the Standards Commission wrote to the agents concerned advising them that it is an offence under section 43(2)(c) of the Act to fail to furnish an Election Expenses Statement by the statutory deadline.
By 3 August 2007, there were 37 Election Expenses Statements outstanding. The Standards Commission sent a further reminder on that date to the agents concerned. On 14 August 2007 with 28 Election Expenses Statements still outstanding a final reminder issued to the agents concerned. The agents were advised that if an Election Expenses Statement was not received within seven days, the Standards Commission would consider referring the matter to the Gardaí. (The Standards Commission has previously been advised by the Office of the DPP to deal directly with the Garda authorities in relation to such offences under the Act.) On 28 August 2007, the Standards Commission requested the Gardaí to investigate the following election agents for failure to furnish an Election Expenses Statement:
Mr. Thomas King who acted as his own election agent (Non-party, Galway West);
Ms. Margaret Murphy who acted as election agent for Mr. Thomas Harpur (Green Party, Wexford); and
Mr. Jim Tallon who acted as his own election agent (Non-party, Wicklow).
An Election Expenses Statement was subsequently received from Ms. Murphy. At the time of publication of this report, an Election Expenses Statement form has still not been received from either Mr. King or Mr. Tallon. As stated in Chapter 2 of the report the Standards Commission also referred Mr. King and Mr. Tallon to the Gardaí for investigation of an offence under section 25 of the Act for failure to furnish a Donation Statement. While the Standards Commission understands that the Gardaí are investigating the offences committed by Mr. King, it is not aware of what action, if any, has been taken in relation to Mr. Tallon.
3.10 - Consideration of Election Agents' Election Expenses Statements
468 election agent Election Expenses Statement forms have now been received. As required by section 4(1) of the Act, the Standards Commission has considered these Election Expenses Statements and has found approximately 60% of them to have been incorrectly completed. In addition a similar percentage of election agents failed to comply with the requirements under section 31(9) and 36(1)(a) of the Act to provide invoices, receipts or vouchers for all election expenses exceeding €126.97 in value.
To avoid returning every Election Expenses Statement which contained an error, the Standards Commission secretariat contacted election agents by telephone or by e-mail, to clarify errors or request outstanding invoices/receipts. Where it was possible to do so, the Standards Commission clarified the error by means of an explanatory note which it has included with the Election Expenses Statement. The Standards Commission has also attached a Summary Sheet to each Election Expenses Statement. The summary sheet gives details of the total expenses incurred by the election agent under the relevant headings (set out in the Schedule to the Act).
Notwithstanding this approach, approximately 100 forms still had to be returned to the agents concerned. The Act provides that where the Standards Commission considers that there may be a minor error or omission in an Election Expenses Statement, it may afford the election agent 14 days to rectify the error or make good the omission. It is an offence under section 43(2)(e) of the Act for an election agent to fail to comply with this requirement. In some instances the Standards Commission experienced considerable difficulties in getting election agents to amend and return their Election Expenses Statements or to furnish relevant invoices/receipts. At the end of October the Standards Commission issued a letter to approximately 30 election agents whose Election Expenses Statement had not been finalised or from whom relevant outstanding invoices/receipts had not been received. The letter informed election agents that the Standards Commission intended presenting its report on the election to the Ceann Comhairle. Election agents were advised of the offence above under section 43(2)(e) of the Act and were informed that if a correctly completed Election Expenses Statement or the relevant invoices/receipts had not been received by the time the report went to print, they would be cited in the report as having failed to comply with section 36 of the Act.
At the time of publication of this report - over four months after the statutory deadline for receipt of Election Expenses Statements and almost six months after the forms were originally issued - correctly completed Election Expenses Statements have still not been received from the following three election agents:
Ms. Trish Forde-Brennan acted as own agent (Green Party, Limerick East) - original form returned in order that items which were not election expenses could be removed. Amended Election Expenses Statement form yet to be received. The Standards Commission subsequently discovered that an amended Election Expenses Statement form had been received from Ms. Forde-Brennan and had been misfiled. The amended Election Expenses Statement has been laid before the Houses of the Oireachtas.
Mr. Felim McDonnell - election agent for Ms. Margaret Cox (Non-party, Galway West) - amended Election Expenses Statement not received.
Mr. David Williams - election agent for Ms. Madeleine Taylor Quinn (Fine Gael, Clare) - clarification required.
In addition the following election agents have yet to furnish invoices/receipts relevant to their Election Expenses Statements:
Dr. John F. Corish - acted as own agent (non-party, Kildare North) - clarification and outstanding receipt/invoice required.
Mr. Niall Kelleher - election agent for Mr. Tom Fleming (Fianna Fáil, Kerry South).
Mr. Barry Kennedy - election agent for Mr. Paudie Coffey, Jim D'Arcy and John Deasy (Fine Gael, Waterford).
Failure on the part of agents to correctly complete their Election Expenses Statements and delays in returning amended statements create a difficulty for the Standards Commission in terms of making its report to the Ceann Comhairle and putting the material on public display in a timely manner. The Standards Commission is conscious of the desirability of having Donation Statements and Election Expenses Statements on public display as soon as possible after the statutory deadline for their receipt. It is of the view, however, that before the material can be laid before the Houses of the Oireachtas and put on public display, it must be satisfied that the information contained therein is correct. To avoid a delay in making the material available, the Standards Commission could allow what it believed to be incorrectly completed returns to be put into the public domain. This is not considered to be a satisfactory manner in which to discharge a statutory duty to the Houses of the Oireachtas and the general public. Consequently those Election Expenses Statements which have not been finalised are not being laid before the Houses of the Oireachtas. The Standards Commission will continue to pursue the correct completion of an Election Expenses Statement form and the furnishing of relevant invoices/receipts with these agents. Reimbursements of election expenses which may be due to the candidates concerned will not be processed until such time as the Standards Commission is satisfied that the election agent's Election Expenses Statement is correct and all relevant invoices/receipts received. If necessary the Standards Commission will refer a file on the agents concerned to the Gardaí for an investigation of the offence under section 43(2)(e) of the Act.
3.11 - Receipt of National Agents' Election Expenses Statement forms
Five of the nine Election Expenses Statements furnished by national agents were received within the statutory deadline of 19 July 2007. Election Expenses Statements from the Labour Party and the Progressive Democrats were received on 20 July 2007. On 31 July 2007, the Standards Commission wrote to the national agents of Fine Gael and The Workers Party drawing their attention to the fact that an Election Expenses Statement had not been received and advising them that it is an offence to fail to furnish an Election Expenses Statement by the statutory deadline. An Election Expenses Statement was received from the national agent of Fine Gael on 1 August 2007. On 8 and 27 August 2007 the Standards Commission sent reminders to the national agent of the Workers Party, Mr. John Lowry, regarding his Election Expenses Statement which was still outstanding. The reminder of 27 August informed Mr. Lowry that if an Election Expenses Statement was not received within seven days, the Standards Commission would consider referring the matter to the DPP. The Election Expenses Statement was subsequently received on 27 August (after the Standards Commission's letter had issued).
In accordance with section 4(1) of the Act, the Standards Commission considered these Election Expenses Statements. National agents were required to account for national spending and spending on individual candidates. While there were queries raised and some corrections required the Standards Commission received good co-operation from the national agents in amending and returning their Election Expenses Statements.
Election Expenses totalling €11,082,313.10 were disclosed by candidates' election agents and the national agents of political parties. "Nil" Election Expenses Statements were furnished in respect of 11 (nine Non Party, one CSP and one GP). Details of the expenditure incurred by candidates and political parties is contained in the following Appendices to this report:
3.12 - Overspending
There are a number of consequences arising from an overspend by an election agent or national agent of a political party at a Dáil general election. It is a criminal offence on the part of the agent concerned, punishable by a fine of up to €1,269.74. A person may also petition the High Court to set aside the result of the election. Rule 3A of the Third Schedule to the Electoral Act 1992 (as introduced by section 44 of the Electoral Act 1997) provides that leave of the High Court to present such a petition must be applied for within 14 days of the Standards Commission having laid a copy of the Election Expenses Statement before the Houses of the Oireachtas. Aside from this, the Standards Commission has no other function in relation to an election petition.
The amount of any overspend by an election agent is deducted from the reimbursement of election expenses which may be due to the candidate while any overspend by the national agent of a political party is deducted from the annual payment received by the party from the Exchequer under the Act.
The Act provides that an election agent will have overspent at the election if he/she exceeds the statutory expenditure limit applicable to the candidate at the election. There was no evidence of any election agent having exceeded the statutory spending limit applying to the candidate.
In the case of an election agent of a candidate contesting the election of behalf of a political party the election agent is also deemed to have overspent if he/she exceeds the amount of the expenditure limit available to the candidate after the assignment was made to the party (see paragraph 3.6). It was evident from the Election Expenses Statements received that the total expenditure accounted for by some election agents exceeded the amount of the expenditure limit retained by the candidate. However, the Act does not specify when the written assignment must be made and does not preclude a renegotiation of the agreed assignment at any stage during or indeed after the election campaign. The Standards Commission's view is that it cannot legally refuse to accept a renegotiation of an assignment even after an Election Expenses Statement has been furnished. There were a number of instances where the assignment was renegotiated after the statutory deadline for receipt of Election Expenses Statements. It was evident to the Standards Commission that in most if not all of these cases the purpose of the reassignment was to ensure that the election agent did not overspend by exceeding the amount of the expenditure limit retained by the candidate.
The Act provides that the national agent of a political party will have overspent if he/she incurs expenditure which exceeds the total amount assigned to the party by its candidates. There was no evidence of a national agent having exceeded the total amount assigned by the party's candidates.
The national agent will also be deemed to have overspent if he/she incurs expenditure on a particular candidate which exceeds the amount assigned by the candidate to the party. In considering the Election Expenses Statement furnished by the national agent of the Green Party the Standards Commission found that the party had incurred election expenses on candidates who had not made any assignment to the party. The party subsequently provided written agreements from these candidates which made an assignment to the party which was sufficient to cover the expenses incurred by the party on the candidates' behalf. As previously stated, the Standards Commission has taken the view that it cannot legally refuse to accept such an assignment even after an Election Expenses Statement has been furnished.
The Standards Commission did not, therefore, refer any instances of overspending to the DPP/Gardaí.
3.13 - Late Claims and Disputed Expenses
Late Claims
The legislation provides that all claims for payment of election expenses must be delivered to the election agent or national agent concerned within 45 days after polling day which, in the case of the Dáil general election, was 8 July 2007. Claims for payment received after this date may not be paid by the election agent or national agent concerned. It is an offence under section 43(2)(b) of the Act for an agent to pay a claim for election expenses which was not received by 8 July 2007. Although late claims may not be paid, they must be accounted for as election expenses by the agent concerned in his/her Election Expenses Statement.
Some election agents and national agents identified late claims on their Election Expenses Statement forms. In each case the agents were informed by the Standards Commission that they could not pay the expense concerned and that it was an offence to do otherwise.
Disputed claims
The legislation provides that where a claim for payment of election expenses is disputed by an election agent or national agent, details of the disputed claim should be provided in the Election Expenses Statement. The agent is not required to account for the amount which is in dispute when calculating the total amount of election expenses incurred. If and when the dispute is resolved, the agent is required to notify the Standards Commission of the amount agreed as payable by him/her and, if necessary, amend his/her Election Expenses Statement accordingly. If the dispute is resolved by means of a court order, a copy of the court order must be furnished to the Standards Commission.
Some election agents and national agents identified disputed claims on their Election Expenses Statement forms. In each case the agents were informed by the Standards Commission that they must notify the Standards Commission when the dispute has been resolved and, if necessary, amend their Election Expenses Statement.
3.14 - Contravention of section 31(8A) of the Act
Section 31(8A) of the Act provides that where a candidate has incurred election expenses before the appointment of his/her election agent, he/she must provide details of the expenses incurred to the election agent. It is an offence for the candidate to fail to provide such information to an election agent in sufficient time to allow the election agent to furnish an Election Expenses Statement in accordance with the requirements of section 36 of the Act.
When furnishing his Election Expenses Statement to the Standards Commission the election agent for Ms. Madeleine Taylor Quinn (FG), Mr. David Williams, stated that he had not received "invoices from M T Quinn" but had decided to furnish her Election Expenses Statement pending receipt of these. The Standards Commission wrote to Ms Taylor Quinn on 3 August informing her of the provisions of section 31(1)(8A) of the Act and requesting her to forward the original vouchers to Mr. Williams. She was advised that failure to comply with section 31(1)(8A) of the Act was an offence (under section 43(2)(e) of the Act). A further letter issued to Ms. Taylor Quinn on 21 August requesting her to forward the relevant vouchers to her election agent or to the Standards Commission by 31 August. Ms Taylor Quinn was advised that if the vouchers were not received by 31 August the Standards Commission would consider referring the matter to the Gardaí.
A file on the matter was sent to the Gardaí on 12 September 2007. This was the second file to be sent to the Gardaí concerning Ms. Taylor Quinn's candidacy at the general election. As stated in Chapter 2, a file on Ms Taylor Quinn was already referred to the Gardaí for prosecution of the offence under section 25(1)(c) of the Act (failure to furnish a Donation Statement by the statutory deadline of 19 July). While some invoices / receipts were subsequently received from Ms. Taylor Quinn on 21 September, not all of the relevant invoices were received. The remaining invoices/receipts were received on 4 December 2007. As stated in paragraph 3.10 above, clarification of one particular matter is still required from Mr. Williams. The Standards Commission will not certify a reimbursement of election expenses to Ms. Taylor Quinn until such time as all outstanding issues in relation to Mr. Williams' Election Expenses Statement have been resolved.