5.1 - Legal Requirements
Section 31(7) of the Act provides that any person who intends to incur election expenses at a Dáil general election and who has not been authorised to do so by either the election agent of a candidate or the national agent of a political party, must, before incurring any such expenses, provide the following information to the Standards Commission:
the name, address and description of the person proposing to incur the expenses,
a statement of the nature, purpose and estimated amount of such expenses, and
an indication of the person's connection, if any, with any party or candidate at the election.
It is an offence under section 43(3)(a) of the Act for a person to whom section 31(7) applies to fail to comply with the above requirements.
The requirements of section 31(7) apply to an individual, body corporate or unincorporated body of persons who intend to incur election expenses (referred to hereafter as "other persons"). Once an "other person" has complied with the requirements of section 31(7), there is no statutory limit to the amount of expenses which may be incurred by that person at the election.
Section 31(6) of the Act, however, provides that where election expenses are incurred at a Dáil general election by a body which -
was established by or on behalf of a political party or candidate for the purposes of incurring election expenses or making payments in respect of election expenses, or
is a member of or is a branch or subsidiary organisation of a political party, or
is effectively controlled by a political party or candidate or is or appears to be so connected with or associated with a political party or candidate that a reasonable person would believe that it is controlled or substantially influenced by that political party or candidate,
the expenses will be deemed to have been incurred on behalf of the candidate or party concerned and must be accounted for by the relevant election agent or national agent. Effectively this means that where a person incurs election expenses and the Standards Commission considers the person to be connected to a candidate or party it can require the candidate's election agent or the party's national agent to account for the expenditure.
Where a donation exceeding €126.97 has been received for political purposes the "other person" would also be required to register as a "third party" under section 23(C) of the Act. ("Political purposes" as defined in the Act includes to incur election expenses.) The requirement to register as a third party is separate and additional to the requirement to notify the Standards Commission of an intent to incur election expenses.
Once registered as a "third party" an individual/organisation is also subject to the requirements of the Act concerning the opening and maintenance of political donations accounts and the acceptance of prohibited donations (anonymous donations, foreign donations and donations in excess of the maximum prescribed limit). The maximum donation which can be accepted by a third party from the same donor in any given year is €6,348.69.
5.2 - Correspondence with "other persons"/"third parties"
The Standards Commission published a notice regarding the requirements of section 31(7) of the Act, and the requirement to register as a "third party", in the national and local newspapers. The notice appeared in the main national newspapers on Thursday 3 May 2007 and in the Sunday newspapers and a number of other relevant magazines on 6 May 2007. The Standards Commission also produced explanatory notes which set out the requirements attaching to "other persons" and "third parties" at the Dáil general election. The public notice and explanatory notes were also published on the website of the Standards Commission. The explanatory notes were issued to anyone whom the Standards Commission considered may have been incurring expenses at the Dáil general election.
As required under section 31(7) of the Act the following people notified the Standards Commission in advance of their intention to incur election expenses:
Cork Harbour for a Safe Environment (CHASE)
Rescue Seamount (Seamount College, Kinvara)
Ennis General Hospital Development Committee (EGHDC)
Union of Students in Ireland (USI)
Donal O'Driscoll, 33 Dargle Road, Blackrock, Co. Dublin
6) Pro Life Campaign
The Campaign to Save Tara
Mr. John McDaid, Lough Swilly Marina
Every person who incurred election expenses pursuant to section 31(7) of the Act was required to furnish an Election Expenses Statement to the Standards Commission by 19 July 2007. EGHDC, The Pro Life Campaign and Mr. Donal O'Driscoll each completed and returned Election Expenses Statement forms within the statutory deadline. Having been issued with reminder letters Rescue Seamount and CHASE furnished Election Expenses Statements on 15 and 31 October 2007 respectively. Mr. McDaid informed the Standards Commission that he had not incurred the intended expenditure. He was not, therefore, required to complete an Election Expenses Statement (Mr. McDaid did, however, furnish a "nil" Election Expenses Statement).
An Election Expenses Statement has still not been received from either USI or from the Campaign to Save Tara. It is an offence under section 43(3)(b) of the Act for a person to whom section 31(7) of the Act applies to fail to furnish an Election Expenses Statement. If an Election Expenses Statement is not received, the Standards Commission will refer files on these organisations to the Gardaí for investigation.
From its monitoring of advertisements and reports in local newspapers, the Standards Commission became aware of activity by the following groups at the election:
Keep Ireland Open,
Kildare Town Chamber of Commerce (KTCC)
Roscommon Hospital Action Committee (RHAG)
National Womens Council of Ireland (NWCI)
Mr. Declan Waugh, 11 Riverview, Bandon, Co. Cork
Galway for Life
Citizens for a better Health Service
Turn the Tide - Action on Suicide Alliance
AdVIC (Advocates for Victims of Homicide)
The Gay Vote
Mallow General Hospital Action Committee (MGHAC)
Mr. Barry Feely, Feelystone Boyle Ltd., Boyle, Co. Roscommon
The Standards Commission wrote to each of the above groups/individuals drawing their attention to the requirements of section 31(7) of the Act and to the requirement under section 23C of the Act to register as a third party. Having considered the responses of NWCI, Turn the Tide, AdVIC, The Gay Vote, MGHAC and Mr. Feely the Standards Commission was satisfied that these persons had not incurred election expenses at the Dáil general election.
The Standards Commission considered that advertisements placed by Keep Ireland Open, KTCC, Galway for Life and Mr. Declan Waugh, which were published during the election period, constituted election expenses in that they sought to influence the outcome of the election. The Standards Commission wrote to these "other persons" informing them that it was of the opinion that they had incurred election expenses as defined in the Act. They were informed of the requirements of section 31(7) of the Act and of the offence (under section 43(3)(a) of the Act) for failing to comply with these requirements. Each was requested to complete an Election Expenses Statement. It has been the practice of the Standards Commission at previous elections not to seek a prosecution of the offence under section 43(3)(a) of the Act where a person otherwise complies with the Act by furnishing an Election Expenses Statement. As these "other persons" otherwise completed an Election Expenses Statement the matter of their non-compliance with section 31(7) of the Act was not referred to the Gardaí.
The expenditure incurred by Roscommon Hospital Action Committee (RHAG) consisted of a newspaper advertisement which endorsed the candidacy of Mr. John Kelly a Non Party candidate in Roscommon/South Leitrim. Having contacted Mr. Kelly on the matter the Standards Commission was satisfied that he was not connected (as defined by section 31(6) above) to RHAG. His election agent was, however, prepared to account for the expenses incurred by RHAG (€2,187.73) and to include the organisation as an authorised person on his Election Expenses Statement.
Citizens for a better Health Service incurred expenses on a leaflet opposing the candidacy of Minister Mary Harney. The leaflet was distributed in Dublin Mid-West constituency and was brought to the attention of the Standards Commission by Minister Harney's election agent. The Standards Commission could not establish any contact details for this organisation other than an e-mail address provided on the leaflet (irishhealthservices@hotmail.com). The Standards Commission sent a number of e-mails regarding the requirements of section 31(7) to this e-mail address without reply. In the absence of any other contact details, it has not been possible for the Standards Commission to take any further action in relation to this organisation including a referral of the offence committed by it to the Gardaí.
It is possible that other individuals and groups incurred expenditure at the election and did not notify, or otherwise come to the attention of, the Standards Commission. If evidence of any such group or individual becomes available, the Standards Commission will take the appropriate action.
Expenses totalling €64,994.78 were disclosed by those "other persons" who furnished an Election Expenses Statement. Details of the expenses incurred are provided in Appendix 6 to this report.