Donations statement euro elections 2004

8/14/2019 Donations statement euro elections 2004

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The Electoral Acts, 1997 to 2004(The Electoral Acts)

European Parliament Election11 June 2004

Donation Statements and Statutory Declarations received fromunsuccessful candidates at the above election

and

Election Expenses Statements and Statutory Declarations receivedfrom election agents of candidates, national agents of political

parties and other persons at the above election

Report by the Standards in Public Office Commissionto the Chairman of Dil ireann (Ceann Comhairle)

in accordance with section 4(1) of the Electoral Acts.

Published by the

STANDARDS IN PUBLIC OFFICE COMMISSION

November 2004

Standards in Public Office Commission,18 Lower Leeson Street, Dublin 2.

Telephone (01) 6395666 Fax (01) 6395684e-mail: [email protected]

website: www.sipo.ie


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Table of ContentsPage No.

Foreword

Chapter 1 Introduction 1

Chapter 2 Relevant legislation 3

Chapter 3 Definition of a donation to a candidate at a Europeanelection

15

Chapter 4 What are election expenses 17

Chapter 5 Guidelines and advice issued in relation to the Europeanelection

21

Chapter 6 Notification of candidates' election agents and the nationalagents of political parties

22

Chapter 7 Notifications received under section 31(7) of the ElectoralActs

24

Chapter 8 Correspondence with newspapers, etc., regarding section31(10) of the Electoral Acts

26

Chapter 9 Issues relating to the European election campaign 27

Chapter 10 Statutory forms 33

Chapter 11 Donation Statements received from unsuccessfulcandidates

35

Chapter 12 Election Expenses Statements received 37

Chapter 13 Reimbursement of election expenses 41

Chapter 14 Laying of Donation Statements and Election ExpensesStatements before the Houses of the Oireachtas

41

Chapter 15 Acknowledgement 42


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Appendices

Appendix 1 Details of candidates, election agents and national agents

Appendix 2 Donations disclosed by unsuccessful candidates(alphabetically)

Appendix 3 Donations disclosed by unsuccessful candidates (by party)

Appendix 4 Expenditure on individual candidates at the European election

Appendix 5 Expenditure by the national agents of political parties at theEuropean election

Appendix 6 Breakdown by category of expenditure accounted for bycandidates' election agents

Appendix 7 Breakdown by category of expenditure accounted for bynational agents of political parties on the national campaign andon candidates in constituencies

Appendix 8 Summary of total expenditure at the European election

Appendix 9 Details of expenditure incurred by other persons pursuant tosection 31(7) of the Electoral Acts

Appendix 10 Details of candidates who qualified for a reimbursement of theirelection expenses

Appendix 11 Details of expenses incurred where the costs were met frompublic funds


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Foreword

I am pleased to furnish this report on the European Parliament election of 11 June

2004 to the Ceann Comhairle in accordance with section 4 (1) of the Electoral Act,

1997, as amended (the Electoral Acts). This is the second European Parliament

election where the provisions of the Electoral Acts have applied.

The Donation Statements and Election Expenses Statements described in the report

were furnished to the Standards in Public Office Commission (the Standards

Commission) pursuant to sections 24(2)(a) and 36(1)(a) of the Electoral Acts. The

Standards Commission considers it to be of the utmost importance that the

information contained in the Donation Statements and Election Expenses

Statements should be in the public domain. As outlined in the report, the Standards

Commission will facilitate dissemination of this information by posting a summary of

the material on its website, www.sipo.ie, and by making the material available at its

offices for inspection and copying.

____________________

Justice Matthew P. Smith

Chairman


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Chapter 1

Introduction

This report by the Standards in Public Office Commission (the StandardsCommission), relating to its supervision of the European Parliament election of 11June 2004 (European election), is being furnished to the Chairman of Dil ireann(Ceann Comhairle) pursuant to the provisions of section 4(1) of the Electoral Act,1997.

Issues dealt with in the report include :

the disclosure of donations by unsuccessful candidates at the European election;

requirements relating to prohibited donations and the limitation on acceptance by

candidates of certain types of donations;the opening and maintenance of political donations accounts by candidates;the disclosure of expenditure on behalf of candidates, political parties and "otherpersons"; andthe reimbursement of election expenses to qualified candidates.

For the purpose of the report- the Electoral Act, 1997,- the Electoral (Amendment) Acts, 1998, 2001, 2002,

- the Electoral (Amendment) (No. 2) Act, 2002 and- the Electoral (Amendment) Act, 2004

are referred to collectively as the Electoral Acts.

Polling for the European election took place on 11 June 2004. This was the secondEuropean election to have taken place since the introduction of the Electoral Act,1997. Significant amendments, however, relating to the opening of politicaldonations accounts and the prohibition on the acceptance of certain types ofdonations, introduced by the 2001 (Amendment) Act, had not applied at theEuropean election of 1999.

In accordance with the provisions of Part IV of the Electoral Acts, unsuccessfulcandidates at the European election were required, by 6 August 2004, to furnish tothe Standards Commission a Donation Statement, and accompanyingdocumentation, giving details of all donations, with a value greater than 634.87,received by them in relation to the election.

Elected candidates are required, as members of the European Parliament (MEPs),to furnish to the Standards Commission, by 31 January each year, an annualDonation Statement and accompanying documentation. The Donation Statementswhich will be furnished by MEPs to the Standards Commission by 31 January 2005will contain details of any donations received by them during 2004 including anydonations received in relation to the European election.


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In accordance with the provisions of Part V of the Electoral Acts, the election agentof each candidate (successful and unsuccessful) at the European election wasrequired to furnish an Election Expenses Statement to the Standards Commissionby 6 August 2004. The Election Expenses Statement must include details of all

expenses incurred and payments made by the election agent on behalf of thecandidate at the election. An Election Expenses Statement was also required fromthe national agent of each political party with candidates contesting the election andfrom "other persons" who may have incurred election expenses at the Europeanelection.

Arising from the High Court and Supreme Court judgments in the case of DesmondKelly and the Minister for the Environment and Local Government, Ireland and theAttorney General (the Kelly Case), where election expenses were incurred at theEuropean election and the costs were met from public funds, such expenses weresubject to the expenditure limits applying at the election and were required to be

accounted for by the election agent, national agent or "other person" who incurredthe expenses.

As well as dealing with the statutory donation and spending returns furnished to it inrelation to the European election, the Standards Commission will be commenting inthis report on certain other issues concerning the election, in particular:

- the promotion of European election candidates by local elections candidates,- the use of Oireachtas facilities, in particular pre-paid Oireachtas envelopes, for

electoral purposes and- amendments to the legislation introduced by the Electoral (Amendment) Act,

2004.


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Chapter 2

Relevant legislation

Disclosure of donations

Part IV of the Electoral Acts provides a framework for dealing with donationsreceived by candidates at a European election. The provisions of Part IV which arerelevant to the supervisory role of the Standards Commission at a European electionare set out below.

2.1. Definition of a donation to a candidate at the European election

Section 22(2)(a) of the Electoral Acts provides that a donation to a candidate atthe European election means any contribution given for political purposes by anyperson, whether or not the person is a member of a political party. Chapter 3 belowsets out those matters which are regarded as donations to a candidate at aEuropean election.

Section 22(2)(aa)of the Electoral Acts specifies that, in relation to a candidate ata European 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 acandidate on any matter connected with the election;

- to present the comments of a candidate with regard to a policy or policies of apolitical party or a political group or of another candidate at the election orotherwise.

Section 2 of the Electoral Acts defines a person as:

- an individual;

- a body corporate (a body corporate and any of its subsidiaries are deemed tobe one person);

- an unincorporated body of persons.

Section 22(2)(b) of the Electoral Acts contains a list of items which are specificallyexcluded from the definition of a donation. These items are also set out in Chapter3 below.

Section 22(2)(c) of the Electoral Acts provides that a donation made to a


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candidate at a European election through an intermediary is deemed to be adonation made to the candidate.

This section also provides that where a donation made to a candidate is passed onby the candidate to his/her political party and he/she receives a written

acknowledgement of the donation from the party, the donation is deemed to be adonation to the political party.

Section 22(2)(d) of the Electoral Acts specifies that where a person makes morethan one donation to the same candidate in relation to the same election, the valuesof the donations must be aggregated and treated as a single donation.

2.2. Disclosure of donations by unsuccessful candidates

Under section 24(2)(a) of the Electoral Acts each unsuccessful candidate at aEuropean election is required to furnish to the Standards Commission, within 56days after polling day, a Donation Statement, and accompanying documentation,indicating whether or not, at any time in relation to the election, the candidatereceived a donation with a value greater than 634.87. If no such donation wasreceived, the candidate is required to furnish a "nil" return. Where a donation isreceived, the value and nature of each donation together with the name, adescription and the postal address of the donor are required to be disclosed.

Section 24(3) of the Electoral Acts provides that each Donation Statement mustbe accompanied by a Statutory Declaration stating that, to the best of the

candidate's knowledge and belief, the Donation Statement is correct in everymaterial respect and that all reasonable action has been taken to ensure itsaccuracy. The Statutory Declaration is required to be witnessed by a person who iseither a practising Solicitor, a Commissioner for Oaths, a Peace Commissioner or aNotary Public.

2.3. Political donations accounts

Section 23B of the Electoral Acts provides that a candidate at a European electionwho receives a monetary donation which exceeds 126.97, must open and maintain

an account in a financial institution in the State and lodge that donation, and anyfurther monetary donations received of whatever value, to that account (this isreferred to as a political donations account). When furnishing his or her DonationStatement and Statutory Declaration, an unsuccessful candidate who was requiredto open a political donations account must complete and furnish to the StandardsCommission a Certificate of Monetary Donations which confirms that all monetarydonations were lodged to the account and that all drawings from the account wereused for political purposes.

The Certificate of Monetary Donations must be accompanied by a separateStatutory Declaration signed by the candidate declaring that the Certificate is correct

in every material respect and that all reasonable action has been taken to ensure itsaccuracy. The Statutory Declaration must be witnessed by a person who is either a


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practising Solicitor, a Commissioner for Oaths, a Peace Commissioner or a NotaryPublic.

The Certificate of Monetary Donations must also be accompanied by a statement,provided by the financial institution where the political donations account was

opened, specifying the transactions that took place in relation to the account duringthe period beginning on the date of opening the account and ending on polling day.

In accordance with the legislation, the Certificates of Monetary Donations and theiraccompanying Statutory Declarations and the statements from financial institutionsare not laid before the Houses of the Oireachtas and are not available for publicinspection.

2.4. Prohibited donations

a) Anonymous donations

Under section 23(1) of the Electoral Acts acceptance of an anonymous donationexceeding a value of 126.97 is prohibited. A donation is anonymous if a candidatedoes not know the name and address of the donor. If a prohibited anonymousdonation is received by a candidate, the Standards Commission must be notified bythe candidate within fourteen days of its receipt. The donation, or its value, mustalso be remitted by the candidate to the Standards Commission.

The Standards Commission is required to lay a copy of any such notification beforeboth Houses of the Oireachtas and to dispose of the donation as directed by theMinister for Finance.

b) Donations in excess of the prescribed limit

Section 23A(1) of the Electoral Acts provides thatthe maximum value ofdonation(s) which may be accepted by a candidate at a European election from aparticular person in a particular calendar year, either directly or through anintermediary, is 2,539.48. Where a person makes more than one donation to a

candidate in a particular year, the values of the donations must be aggregated forthe purpose of observing the maximum limit.

Section 23A(4) provides that the limit of 2,539.48 does not apply to a constituencyoffice provided to the candidate by a person or, if more than one such office isprovided, to whichever of the offices is nominated in writing by the candidate.

Section 23A(5) provides that where a donation is received and is prohibitedbecause its value is over the limit, the candidate must notify the StandardsCommission within 14 days of its receipt and remit the donation, or that part of amonetary donation which is over the limit, to the Standards Commission. As an

alternative, the candidate may, within 14 days of its receipt, return the donation, orthat part of a monetary donation which is over the limit, to the donor and keep a


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written record of that return for the purpose of its being furnished to the StandardsCommission, if required.

c) Foreign donations

Section 23A(2) of the Electoral Acts provides thata candidate at a Europeanelection must not accept a donation, of whatever value, given by an individual (otherthan an Irish citizen) who resides outside the island of Ireland or by a body corporateor unincorporated body of persons which does not keep an office in the island ofIreland from which the carrying on of one or more of its principal activities is directed(hereafter referred to as a foreign donation).

Section 23A(5) provides that where a foreign donation is received it must be notifiedand remitted by the candidate to the Standards Commission within 14 days of itsreceipt. As an alternative, the candidate may, within 14 days of its receipt, return thedonation to the donor and keep a written record of that return for the purpose of itsbeing furnished to the Standards Commission, if required.

Unlike anonymous donations, the legislation does not require that copies ofnotifications received relating to donations exceeding the prescribed limit or foreigndonations should be laid before the Houses of the Oireachtas. Similarly thelegislation does not prescribe how remittances of such donations to the StandardsCommission are to be disposed of.

2.5. Offences and penalties relating to the receipt of donations

Section 25 of the 1997 Act sets out the following offences and penalties in relationto donations :

a) Failure to furnish a Donation Statement and Statutory Declaration and, whererequired to, a Certificate of Monetary Donations and Statutory Declaration andaccompanying statement from a financial institution, within 56 days of pollingday. The penalty for this offence is a fine of up to 1,269.74 with a further fineof up to 126.97 per day for each day, after a conviction, on which the materialis still outstanding.

b) Knowingly furnishing a Donation Statement or Statutory Declaration, Certificateof Monetary Donations or Statutory Declaration or a statement from a financialinstitution which is false or misleading in a material respect. The penalty is afine of up to 25,394.76 and/or up to 3 years imprisonment.

c) Failure to notify the Standards Commission of, or remit to the StandardsCommission, an anonymous donation may result in a fine of up to 1,269.74.

d) Failure to notify the Standards Commission of, or remit, as appropriate, to theStandards Commission, or return, as appropriate, to the donor, a foreign donationor a donation which is in excess of the prescribed limit, may result in a fine of up to

1,269.74.


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Election spending

Part V of the Electoral Acts sets out the basis on which expenses may be incurred

on behalf of candidates and political parties at a European election. The provisionsof Part V which are relevant to the supervisory role of the Standards Commission ata European election are set out below.

2.6 Definition of election expenses

Section 31(1) of the Electoral Acts, by reference to paragraph 1 of the Scheduleto the Electoral Acts, provides a definition of what are election expenses. This isset out in more detail in Chapter 4 below.

Section 31(2) of the Electoral Acts provides that where a donation of property,goods or services is received free or below cost, and is used at the election duringthe election period, it is regarded as an election expense which must be accountedfor at its full commercial price, subject to an allowance for any normal or generaldiscount.

Paragraph 2 of the Schedule to the Electoral Acts provides a list of items whichare not regarded as election expenses. These items are also set out in Chapter 4.

Section 31(3) of the Electoral Acts provides that in the case of a European election, the"election period" is from the date of the order appointing polling day up until polling day.The election period at the 2004 European election was from 7 May 2004 to 11 June2004. The election agents of candidates and the national agents of political parties wererequired to account for all goods, property or services used for electoral purposes duringthis period.

Section 34 of the Electoral Acts provides that payment must not be made in respect ofany election expense incurred at a European election if a claim for payment has not beenreceived by the relevant agent within 45 days of the date of the election. The electionexpense must, however, be accounted for in the Election Expenses Statement.

Section 35 of the Electoral Acts provides for the resolution of disputes relating toclaims for payment of election expenses which were received within the 45 dayperiod.

2.7 Appointment of agents

Each political party with candidates contesting a European election is required undersection 28(1) of the Electoral Acts to appoint a national agent for the purpose ofincurring expenditure on the party's behalf at the election. The party must notify theStandards Commission of the name and office address of the national agent. The

Standards Commission publishes details of the national agents appointed by eachpolitical party in Iris Oifigiil.


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Each candidate at the European election is required under section 28(2) of theElectoral Acts to appoint an election agent for the purpose of incurring expenditureon the candidate's behalf at the election. A candidate may act as his/her ownelection agent. In such circumstances, the candidate will be subject to the

provisions of the legislation both as a candidate and as an election agent. Thereturning officer for each constituency is required under section 28(6)(b) of theElectoral Acts to notify the Standards Commission of the names and addresses ofthe candidates standing for election in the constituency together with details of theelection agents appointed by those candidates.

Pursuant to section 28(4) of the Electoral Acts a candidate or a political party mayrevoke the appointment of an election agent or a national agent and, in accordancewith section 28(5) of the Electoral Acts, appoint another person to act as electionagent or as national agent.

In accordance with section 31(5) of the Electoral Acts, election agents andnational agents may authorise (within specified financial limits) other persons toincur expenditure on their behalf at a European election. Election agents andnational agents must account for expenditure incurred by such authorised persons.

2.8 Spending limits for the European election

Section 33(1)(a) of the Electoral Acts provides that the Minister for theEnvironment, Heritage and Local Government may make an order determining the

spending limits for a European election. An order (Statutory Instrument Number 87of 2004), setting the spending limit for the 2004 European election at 230,000 percandidate, inclusive of VAT,was made by the Minister on 3 March 2004.

In accordance with section 33(1)(b) of the Electoral Acts, a candidate of apolitical party may assign part, or all, of his/her expenditure limit to a political partyfor spending by the party's national agent. The amount assigned to the party mustbe agreed in writing between the party and the candidate. It should be noted thatthe legislation is not specific with regard to when this assignment should be made. Itwould be prudent and good practice to agree the amount to be assigned before anyexpenses are incurred in relation to the election. There is no obligation on a

candidate to assign any part of the spending limit to the political party.

Under section 33(3) of the Electoral Acts the total amount available to the nationalagent of a political party to spend at the election is the sum of the amounts assignedby each of the party's candidates to the party. Whatever amount is assigned to theparty by a candidate is not available for spending by the candidate's election agent.Total expenditure in respect of a candidate by both the candidate's election agentand the party's national agent may not exceed the spending limit applying to thecandidate.


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2.9 Election Expenses Statements

The national agent of a political party, the election agent of a candidate and anyperson incurring election expenses pursuant to section 31(7) (referred to atparagraph 2.16 below) is required under section 36 of the Electoral Acts to furnish

an Election Expenses Statement to the Standards Commission. The ElectionExpenses Statement must be provided within 56 days after polling day at aEuropean election.

The Election Expenses Statement must show all election expenses incurred by theagent or person at the election (including expenses incurred by "authorisedpersons"). It must also include details of items which were provided free or belowcost as well as details of any claims which are in dispute and details of claims forpayment which were not received within 45 days after polling day.

Section 31(9) of the Electoral Acts provides that a receipt, invoice or voucher mustbe provided for every payment of an election expense exceeding 126.97.

Section 36(2) of the Electoral Acts provides that an Election Expenses Statementmust be accompanied by a Statutory Declaration stating that, to the best of theagent's knowledge and belief, the Election Expenses Statement is correct in everymaterial respect and that all reasonable action has been taken to ensure itsaccuracy.

2.10 Overspending

In accordance with sections 40(b)and 43(2)(a) of the Electoral Acts an electionagent will have overspent at the election if the amount of expenditure incurred byhim/her exceeds the amount of the expenditure limit retained by the candidatepursuant to section 33(1)(b) of the Electoral Acts referred to in paragraph 2.8 above.

The national agent of a political party will have overspent if the total amount ofexpenditure incurred by him/her exceeds the total sum assigned to the party by theparty's candidates pursuant to section 33(2) of the Electoral Acts referred to inparagraph 2.8 above. A national agent will also be deemed to have overspent if theamount of expenditure incurred by him/her on a particular candidate exceeds the

amount assigned to the party by that candidate.

The consequences of an overspend by an election agent or a national agent at theelection are :

i) it is an offence punishable by a fine of up to 1,269.74 (section 43(2)(a) and43(5) of the Electoral Acts);

ii) a person can petition the High Court to set aside the result of the election(section 45 of the Electoral Acts);

iii) where the overspend has been incurred by the national agent of a politicalparty the amount of the overspend may be deducted from any payment which


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may be due to the party from the Exchequer under the Electoral Acts (section40(a) of the Electoral Acts);

iv) where the overspend has been incurred by the candidate's election agent theamount of the overspend may be deducted from any reimbursement of election

expenses due to the candidate under section 21 of the Electoral Acts (section40(b) of the Electoral Acts).

2.11 Offences and penalties relating to spending at a European election

Section 31(8A) provides that it is an offence by a candidate or a political party to failto furnish to the candidate's election agent or to the national agent of the politicalparty, as appropriate, relevant details of expenses incurred before the appointmentof the agent, in sufficient time to enable the agent to carry out his or her duties.There is no penalty specified in the legislation in relation to this offence.

In addition to the above offence, the following offences and penalties are providedfor in section 43 of the Electoral Acts:

- Where a person, who is not authorised to do so (including the candidate afterthe appointment of his/her election agent), incurs expenditure or makes apayment in relation to the election, he or she, on conviction, can be fined up to

1,269.74.

- The penalty if an election agent or national agent is found guilty of the offence

of breaching the expenditure limits is a fine of up to

1,269.74.- Payment of claims by an election agent or national agent which were received

more than 45 days after polling day can result in a fine of up to 1,269.74.

- Failure to make such enquiries and maintain such records as are necessary forthe purpose of furnishing an Election Expenses Statement and making aStatutory Declaration may result in a fine of up to 1,269.74.

- Failure by an election agent, a national agent or "other person" (notified to theStandards Commission in accordance with section 31(7) of the Electoral Acts)to furnish an Election Expenses Statement and Statutory Declaration to theStandards Commission by the statutory deadline can result in a fine of up to

1,269.74 and an on-going fine of up to 126.97 per day for each day, after aconviction, on which the material is still outstanding.

- If requested to furnish to the Standards Commission supplementary informationin relation to an Election Expenses Statement, failure to do so can result in afine of up to 1,269.74.

- If an election agent, a national agent or "other person" (notified to theStandards Commission in accordance with section 31(7) of the Electoral Acts)knowingly furnishes a false or misleading Election Expenses Statement to theStandards Commission the penalty is a fine of up to 25,394.76 and/or up to 3years imprisonment.


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- Failure to furnish to the Standards Commission, within 7 days after the date ofthe order, a copy of a court order for the payment of a disputed claim mayresult in a fine of up to 1,269.74.

- The penalty for a publisher of a newspaper, etc., who is found guilty ofpublishing any advertisement or notice in relation to the European election, incontravention of section 31(10) of the Electoral Acts, is a fine of up to 1,269.74.

2.12 Reimbursement of election expenses

Section 21(2) of the Electoral Acts provides that the Minister for the Environment,Heritage and Local Government may make regulations providing for thereimbursement of election expenses to qualified candidates at a European election.Regulations (Statutory Instrument No. 122 of 1999) made by the Minister for theEnvironment and Local Government on 5 May 1999 applied in relation to the 2004European election. These regulations provide for a reimbursement of up to

38,092.14 (IR30,000) to qualified candidates. In order to qualify, candidates at aEuropean election must either:

(i) have been elected, or

(ii) if not elected, have exceeded, at any stage of the counting of votes at theelection, one quarter of the quota for the constituency.

The maximum amount which may be reimbursed to a qualified candidate is thelesser of 38,092.14 or the actual expenses incurred on the candidate. Expensesincurred by a political party on a qualified candidate in his/her constituency arereckonable under section 33(5) of the Electoral Acts for the purposes of calculatingthe amount which may be reimbursed to the candidate.

A candidate must apply to the Standards Commission for a reimbursement ofhis/her election expenses. Section 21(d) of the Electoral Acts provides that theStandards Commission must certify to the Minister for Finance that a reimbursementof election expenses may be paid and must provide details to the Minister of theamount to be reimbursed.

Reporting and other responsibilities of the Standards Commission inrelation to the European election

2.13 Consideration of statutory returns

Section 4(1) of the Electoral Acts requires the Standards Commission to considerevery Donation Statement, Election Expenses Statement and notification of receipt

of an anonymous donation furnished to it and, where it considers it appropriate to doso, to furnish a report in writing to the Ceann Comhairle on any matter arising in


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relation to such statements. In accordance with section 4(5) of the Electoral Actsall such reports furnished by the Standards Commission must be laid before theHouses of the Oireachtas.

Where, following consideration of a Donation Statement or an Election Expenses

Statement, the Standards Commission considers that there may be a minor error oromission, it may, pursuant to section 4(2) of the Electoral Acts, notify the personwho furnished the statement of the error or omission and afford him/her 14 days torectify the error or make good the omission.

Where, following consideration of a Donation Statement or an Election ExpensesStatement, the Standards Commission considers that a contravention of thelegislation may have occurred, it is required under Section 4(3) of the ElectoralAct 1997 to notify the person who furnished the statement of the possiblecontravention and afford him/her 14 days to furnish any comments he/she mayhave. The Standards Commission must consider any comments provided by theperson. If, having considered such comments, the Standards Commissioncontinues to be of the opinion that a contravention of the legislation may haveoccurred, it must furnish a report on the matter, together with any relevantdocumentation, to the Director of Public Prosecutions.

Section 4(4) of the Electoral Acts provides that the Standards Commission maymake such inquiries as it considers appropriate and may require any person tofurnish any information, document or thing which the Standards Commission mayrequire for the purposes of carrying out its duties under the Electoral Acts.

2.14 Provision of guidelines and advice

Sections 4(6) and 4(7) of the Electoral Acts provide that the StandardsCommission may publish guidelines or give advice to any person to whom aprovision of the Electoral Acts applies.

Section 4(8) requires the Standards Commission, when requested to do so, to giveadvice within 21 days or to notify the person concerned of its decision to decline togive the advice. In accordance with section 4(11) of the Electoral Acts a personmust act in compliance with the advice given or guidelines published, unless by so

doing he/she would be contravening another provision of the Electoral Acts.

2.15 Placing information in the public domain

The Standards Commission is required under section 24(7)(a) of the ElectoralActs to lay a copy of each Donation Statement received by it before the Houses ofthe Oireachtas.

The Standards Commission is required under section 28(6)(a) of the ElectoralActs to publish, in Iris Oifigiil, details of the national agents appointed by eachpolitical party.


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The Standards Commission is required under section 37(1) of the Electoral Actsto lay a copy of each Election Expenses Statement received by it before the Housesof the Oireachtas.

In accordance with section 73 of the Electoral Acts the Donation Statements and

Election Expenses Statements received by the Standards Commission, togetherwith any relevant invoices, receipts or vouchers, must be retained at its office for aperiod of 3 years and be made available to the public for inspection and copying.

Other relevant provisions

2.16 "Third parties" and "other persons"

A "third party" is defined under section 22(2)(aa) of the Electoral Acts as a person,other than a registered political party or a candidate at an election, who receives acontribution for political purposes which exceeds 126.97 in value. As soon as maybe after the receipt by it of a donation valued in excess of 126.97 a third party isrequired under section 23(c) of the Electoral Acts to register with the StandardsCommission. Third parties are also subject to the requirements of the legislationconcerning the opening and maintenance of political donations accounts and theacceptance of prohibited donations. The maximum donation which can be acceptedby a third party from the same donor in any given year is 6,348.69.

Section 31(6) of the Electoral Acts provides that where election expenses are

incurred at a European election by a body which -

i) was established by or on behalf of a political party or candidate for thepurposes of incurring election expenses or making payments in respect ofelection expenses, or

ii) is a member of or is a branch or subsidiary organisation of a political party, or

iii) is effectively controlled by a political party or candidate or is or appears to be soconnected with or associated with a political party or candidate that areasonable 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 orparty concerned and must be accounted for by the relevant election agent ornational agent.

A person (including a "third party") who intends incurring expenditure at a Europeanelection and who is not the national agent of a political party, the election agent of acandidate or a person authorised by either agent to incur election expenses, must,pursuant to section 31(7) of the Electoral Acts,notify the Standards Commissionof the proposed expenditure and provide details of the person proposing to incur theexpenditure. Such persons are referred to throughout this report as "other persons".A "third party" who has already registered with the Standards Commission is also


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required to notify the Standards Commission in accordance with section 31(7) if itintends to incur election expenses at a European election.

Section 31(10) of the Electoral Acts provides that the publisher of a newspaper,magazine or other periodical publication shall not publish any advertisement or

notice in relation to a European election purporting to promote or oppose, directly orindirectly, the interests of a political party or a candidate at the election, unlessrequested to do so by one of the following people:- the national agent of a political party, or a person authorised in writing by such

agent.- a candidate at the election, a candidate's election agent or a person authorised

in writing by such candidate or agent.- an "other person" who produces to the publisher a certificate from the

Standards Commission confirming that the person has complied with section31(7) of the Electoral Acts.


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Chapter 3

Definition of a donation to a candidate at a European election

3.1 What is included in the definition of a donation to a candidate at aEuropean election

Section 22(2)(a) of the Electoral Acts provides that a donation to a candidate at aEuropean election includes all or any of the following:

- a donation of money;

- a donation of property or goods;- the free use of property or goods;

- a free supply of services;

- the difference between the commercial price and the (lower) price charged forthe purchase, acquisition or use of property, goods or services;

- a donation received by way of a contribution made to the net profit from afund-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 raisefunds for the party, contributions to the event are considered to be a donationto the party, even if the funds are subsequently used to support the candidate.

3.2 What is excluded from the definition of a donation to a candidate ata European election

The list of items provided for in section 22(2)(b) of the Electoral Acts which are notregarded as a donation to a candidate are as follows:

- free post service provided by An Post to candidates under rule 22 of the SecondSchedule to the European Parliament Elections Act, 1997;

- any payment, service or facility provided to a candidate out of public funds ormoneys provided by an institution of the European Communities or otherintergovernmental organisation to which the State is a party, pursuant tospecified legislation, by virtue of the candidate being:

- a representative in the European Parliament;- a member of the Dil or Seanad;

- the holder of a qualifying office or position;- the holder of an elective or other public office; or


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- a member of, delegate to or representative in a body established by orunder an agreement or arrangement to which the State is a party;

- a free service provided by an individual, including use of the individual's motorvehicle, private telephone, etc., where the service provided is not part of the

individual's work or business;

- a service provided at a European election by an employee of a political party,including use of the individual's motor vehicle, where the employee'sremuneration is paid out of party resources or out of public funds and where theemployee is not in receipt of any reward or benefit in kind other than his or hernormal remuneration (including recoupment of expenses) for that service;

- normal media coverage and the transmission on radio or television of abroadcast on behalf of the candidate; and

- expenses incurred or payments made by a political party on behalf of thecandidate;

NOTE: Money given directly by a political party to a candidate is regarded as a donationto the candidate. Election expenses incurred or payments made by a supportgroup, other than a political party, on a candidate's behalf are also regarded asdonations to a candidate.


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Chapter 4

What are election expenses

4.1 Definition of what constitutes election expenses

The Electoral Actsprovide that election expenses are those and only those set outin paragraph 1 of the Schedule to the Electoral Acts, which are incurred on theprovision of property, goods or services for use at the election during the electionperiod in order:

(i) to promote or oppose the interests of a political party or the election of acandidate, or

(ii) to present the policies of a political party or the comments of a political party onthe policies of another political party or a candidate at the election, or

(iii) to solicit votes for or against a candidate at an election, or

(iv) to present the policies of a candidate or the views of a candidate on any matterconnected with the election or the comments of a candidate on the policies of apolitical party or another candidate at the election, or

(v) otherwise to influence the outcome of the election.

The provision of property, goods or services free or below cost which are used at theelection during the election period is regarded as an election expense which must beaccounted for at full commercial price, subject to an allowance for any normal orgeneral discount. A definition of the election period is provided in paragraph 2.6above.

The expenses set out in paragraph 1 of the Schedule to the Electoral Actsare asfollows:

(a) Advertising (whatever the medium used).Expenses in respect of such advertising include agency fees, design costs and othercosts incurred in connection with preparing, producing, distributing or otherwisedisseminating such advertising.

(b) Publicity.Expenses in respect of that matter include expenses incurred in respect of partypolitical broadcasts, the provision of any services or facilities in connection withpress conferences or other dealings with the media, media advice and training andphotography.


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a representative in the European Parliament;a member of the Dil or Seanad;the holder of a qualifying office or position;the holder of an elective or other public office; or

a member of, delegate to or representative in a body established byor under an agreement or arrangement to which the State is a party;

(iii) a free service provided by an individual, including use of the individual'smotor vehicle, where the service is not part of the individual's work orbusiness, or

a service provided at an election by an employee of a political party,including use of the individual's motor vehicle, where the employee'sremuneration is paid out of party resources or out of public funds andwhere the employee is not in receipt of any reward or benefit in kind otherthan his or her normal remuneration (including recoupment of expenses)for that service;

(iv) normal media coverage on radio or television or in newspapers,magazines, etc.;

(v) the transmission on radio or television of a broadcast on behalf of acandidate or a political party;

(b) election expenses incurred at a previous Dil, European Parliament or local

election which were disclosed in an Election Expenses Statement furnished tothe Standards Commission (or its predecessor the Public Offices Commission)or to a local authority;

(c) any expenses in respect of any property, services or facilities so far asthose expenses fall to be met out of public funds;

(d) necessary travelling expenses incurred by a candidate or an assentor inmeeting the requirements of section 46(4A) and (4B) of the Electoral Act of1992 and section 12(1A) and (1B) of the Electoral Act of 1997;

(e) the cost of purchasing copies of the register of electors;

(f) the reasonable living expenses (including accommodation) of a candidate andvolunteers working on his or her behalf (the Standards Commission determinedthat an amount of50 per person per day (not including accommodation) wouldbe regarded as reasonable living expenses);

(g) any sum disbursed by any individual out of the individual's own resources forany minor expenses (not exceeding 126.97 in any one payment) lawfullyincurred in relation to the election if the said sum is not repaid to the person.


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4.3 Implications of the Kelly case in relation to election expenses where thecosts were met out of public funds

The judgment in the High Court in the Kelly case which was subsequently upheld by

the Supreme Court declared paragraph 2(c) of the Schedule to the Electoral Actsinvalid and declared paragraph 2(a) of the Schedule invalid insofar as it applies tosection 22(2)(b)(ii) of the Electoral Acts.

This meant that the matters at paragraphs 4.2(a)(ii) and 4.2(c) above (highlighted inbold), which are stated in the legislation not to be election expenses, are nowregarded as election expenses. Where goods, property or services were used forelectoral purposes at the European election during the election period and the costswere met from public funds, such costs were subject to the expenditure limitapplying at the election and had to be accounted for as election expenses by theelection agents and national agents concerned.


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Chapter 5

Guidelines and advice issued in relation to the European election

In April 2004, pursuant to section 4(6)(a) of the Electoral Acts, the StandardsCommission published "Guidelines for European Parliament Election 2004".

The guidelines were divided into 4 chapters as follows :

- Chapter 1 dealt with the requirements attaching to candidates at the election.- Chapter 2 concerned the duties and responsibilities of the election agents of

candidates with regard to spending at the election.- Chapter 3 set out the duties and responsibilities attaching to the national

agents of political parties with candidates contesting the election.

- Chapter 4 outlined the rules relating to "third parties", "other persons" and thepublishers of newspapers, magazines, etc., in connection with the Europeanelection.

The guidelines had five appendices. Appendix 1 contained legal definitions of termsused in the guidelines. Appendix 2 provided advice regarding the treatment of theproceeds of fund-raising events. Appendix 3 provided examples of what arenormally accounted for as election expenses while Appendix 4 gave examples ofitems which are often incorrectly included as election expenses. Appendix 5 to theguidelines was a sample Election Expenses Statement form.

Circulation of the guidelines began immediately to all candidates and election agentswhose details were known to the Standards Commission at the time. Circulation toother candidates and their election agents continued as and when they becameknown to the Standards Commission through either direct contact, media coverageor from details provided by the returning officers for the various constituencies (seeChapter 6 below). The published guidelines were also sent to the national agent ofeach political party and to "other persons" who notified the Standards Commissionof their intention to incur election expenses in accordance with section 31(7) of theElectoral Acts (see Chapter 7 below). The Standards Commission is satisfied that acopy of the guidelines was furnished to all relevant persons.

Representatives of the Standards Commission visited each of the fourconstituencies during the election campaign and met with candidates and electionagents to provide advice and assistance regarding the requirements of thelegislation. Campaign offices were visited and samples of election material wereprovided to the Standards Commission. Representatives of the StandardsCommission also met with some candidates and election agents after the election toensure, as far as possible, an accurate and prompt completion of statutory formsand to facilitate the processing of applications from candidates seekingreimbursement of election expenses. The Standards Commission is grateful tocandidates, election agents and national agents for their courtesy and assistance

during the course of the constituency visits.


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Chapter 6

Notification of candidates' election agents and the national agents

of political partiesElection agents

In accordance with section 28 of the Electoral Acts each candidate at a Europeanelection is required to appoint an election agent for the purpose of incurring electionexpenses on his/her behalf. A candidate may act as his/her own election agent.

Section 28 also provides that the returning officers for each European constituencymust notify the Standards Commission of all candidates contesting the election inthe constituency and provide details of the election agents, if any, appointed by

those candidates. Returning officers are also required to inform the StandardsCommission if they are notified by a candidate that the appointment of an electionagent has been revoked and a new election agent appointed.

The Standards Commission wrote to the four returning officers on 4 May 2004requesting that he/she provide details of each candidate contesting the election inthe constituency and details of the election agents appointed by those candidates.To ensure that the guidelines were circulated as quickly as possible to all candidatesand their election agents, the Standards Commission requested returning officers tofax or e-mail the relevant information to it as soon as possible after nominations forthe election closed.

National agentsSection 28(1) of the Electoral Acts requires a political party which has a candidatecontesting the European election to appoint a national agent and to notify theStandards Commission of the name and address of the person appointed.

The legislation requires that the Standards Commission must be notified of theappointment of a national agent not later than the last day for receiving nominations at

the election. If a political party has not provided the relevant information by the last dayfor withdrawing nominations, the party's appropriate officer (appointed under section 71of the Electoral Acts) is deemed to have been appointed as the national agent. If noappropriate officer stands appointed, the leader of the party is deemed to have beenappointed as the national agent.

Six of the seven political parties which contested the election notified the StandardsCommission of the appointment of a national agent. As the Christian Solidarity Partyfailed to notify the Standards Commission of the appointment of a national agent by thelast day for withdrawing nominations, the party's appropriate officer was deemed to beappointed as its national agent.


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As required under section 6(a) of the Electoral Acts, the Standards Commissionpublished in Iris Oifigiil, on 1 June 2004, the names and addresses of the nationalagents appointed, or deemed to have been appointed, by each of the political parties.

The candidates, their election agents and the national agents of political parties are

set out at Appendix 1 to this report.


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Chapter 7

Notifications received under section 31(7) of the Electoral Acts

Section 31(7) of the Electoral Acts provides that any person who intends to incurelection expenses at a European election, who has not been authorised to do so byeither 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 theStandards Commission:

(a) the name, address and description of the person proposing to incur theexpenses,

(b) a statement of the nature, purpose and estimated amount of such expenses,

and

(c) an indication of the person's connection, if any, with any party or candidate atthe election.

It is an offence for a person to whom section 31(7) applies to fail to comply with theabove requirements.

It should be noted that the requirements of section 31(7) apply only to persons whointend to incur election expenses and are separate and additional to anyrequirement to register with the Standards Commission as a "third party" under

section 23C of the Electoral Acts (see paragraph 2.16 above). It should also benoted that, once a person has complied with the requirements of section 31(7), thereis no statutory limit to the amount of expenses which may be incurred by that personat the election.

The Standards Commission published a notice regarding the requirements ofsection 31(7) in the national and local newspapers. The notice appeared inprovincial newspapers during the week beginning 3 May 2004, in the nationalnewspapers on Thursday, 6 May 2004 and in the Sunday newspapers on 9 May2004.

The following people notified the Standards Commission in advance of theirintention to incur election expenses:

1) Mr. Jim O'Brien, Head of Office, European Parliament Office, European UnionHouse, 43 Molesworth Street, Dublin 2 and

2) Mr. Alan McPartland, 21 Grange Court, Rathfarnham, Dublin 16

Every person who incurred election expenses pursuant to section 31(7) of theElectoral Acts was required to furnish an Election Expenses Statement to theStandards Commission by 6 August 2004. Mr. O'Brien completed and returned his

Election Expenses Statement within the statutory deadline. Mr. McPartlandinformed the Standards Commission that he had not incurred the intended


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expenditure. He was not, therefore, required to complete an Election ExpensesStatement.

From its monitoring of advertisements and reports in local newspapers, theStandards Commission became aware of activity by the following groups at the

European election:

1) County Monaghan Community Alliance,2) Ennis General Hospital Development Committee (EGHDC),3) Nenagh Hospital Action Group (NHAG), and4) Health Services Action Group.

The Standards Commission wrote to each of the groups drawing their attention tothe requirements of section 31(7) and to the requirement to register as a third party ifa donation valued in excess of 126.97 was received for political purposes. Havingconsidered the responses of County Monaghan Community Alliance and the Health

Services Action Group, the Standards Commission was satisfied that these bodieshad not incurred election expenses at the European election.

The Standards Commission was of the view, however, that advertisements whichwere placed by EGHDC with the Clare Champion newspaper and published duringthe election period, constituted election expenses in that they sought to influence theoutcome of the European election. The Standards Commission was of a similarview in relation to a leaflet produced by NHAG.

The Standards Commission wrote to both groups enclosing an Election ExpensesStatement / Statutory Declaration form (EP/04/EES/TP/OP) for completion. Bothgroups were advised that, as they had failed to register with the StandardsCommission in compliance with section 31(7), an offence under section 43(3) of theElectoral Acts may have been committed. They were informed that if they otherwisecomplied with the provisions of the legislation, i.e. by providing details of the electionexpenses incurred, the Standards Commission would not seek to have themprosecuted for the possible offence.

An Election Expenses Statement was subsequently received from Senator KathleenO'Meara on behalf of NHAG and from Mr. Joe Arkins on behalf of EGHDC. TheStandards Commission does not propose to take any further action with regard to

either group.It is, of course, possible that other individuals and groups incurred expenditure at theelection and did not notify, or otherwise come to the attention of, the StandardsCommission. If evidence of any such group or individual becomes available, theStandards Commission will take the appropriate action.

Details of the expenses incurred by Mr. O'Brien, by Nenagh Hospital Action Groupand by Ennis General Hospital Development Committee are provided in Appendix 9to this report.


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Chapter 8

Correspondence with newspapers, etc., regarding section 31(10) ofthe Electoral Acts

Section 31(10) of the Electoral Acts provides that the publisher of a newspaper,magazine or other periodical publication shall not publish any advertisement ornotice in relation to the European election which purports to promote or oppose,directly or indirectly, the interests of a political party or a candidate at the election,unless requested to do so by either:

the national agent of a political party, or a person authorised in writing by suchagent,a candidate at the election, his/her election agent or a person authorised in writingby the candidate or agent, or

an "other person" who produces to the publisher a certificate from the Standards

Commission confirming that he/she has complied with the provisions of section31(7) of the Act.

It is an offence for the publisher of a newspaper, magazine or other periodicalpublication to fail to comply with the requirements of section 31(10).

On 22 April 2004, the Standards Commission wrote to the publishers of over 100national and local newspapers and to the publishers of a number of magazines andother periodical publications informing them that the provisions of Section 31(10) ofthe Electoral Acts would apply at the European election. The Standards Commission

is satisfied that the majority of publishers of newspapers, etc., complied with therequirements of section 31(10).

It was, however, necessary for the Standards Commission to correspond further withthe publishers of The Clare Champion. As stated in Chapter 7 above, the StandardsCommission was of the view that advertisements which appeared in that newspaperon 21 and 28 May 2004 on behalf of Ennis General Hospital DevelopmentCommittee (EGHDC) constituted election spending, in that they sought to influencethe outcome of the European election. This body had not, at the time, notified theStandards Commission of its intention to incur expenditure at the election andconsequently the Standards Commission had not issued a certificate of compliance

(with section 31(7)) to it.

The Standards Commission wrote to the editor of The Clare Champion on thematter. A reply from the paper's Advertising Manager was received on 14 June2004. In his reply the Advertising Manager stated that EGHDC includes people ofall political parties and was campaigning on what is regarded as a local issue. Inview of this and the fact that the advertisements did not specifically refer to anyEuropean election candidate, he did not consider, when accepting theadvertisements, that they would contravene the provisions of section 31(10). Havingreviewed the matter, and being mindful of the fact that the publishers had notintentionally contravened the provisions of section 31(10) of the Electoral Acts, theStandards Commission decided not to take any further action.


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Chapter 9

Issues relating to the European election campaign

Spending by local elections candidates

The Standards Commission has no jurisdiction in relation to expenditure bycandidates at local elections. However, where a European election candidate wasfeatured in promotional material which primarily related to local elections candidates,a proportion of the expenditure involved was regarded as an election expenseincurred on promoting the candidacy of the European election candidate. A localelections candidate, director of elections, etc., who intended to include a reference toa European election candidate in local elections promotional material should havebeen authorised to do so by either the European election candidate's election agent

or the national agent of the European election candidate's political party.

Election agents and national agents at the European election were advised by theStandards Commission to be aware of any such unauthorised expenditure beingincurred by local elections candidates. In that regard, election agents of Europeanelection candidates, who were contesting the election on behalf of a political party,were advised to write to each of the party's local elections candidates in theEuropean election constituency to advise them of the above requirements.

The extent to which a European election candidate was featured in local electionspromotional material was used as a basis for calculating the proportion of the

election expense which would be attributed to the European election candidate.Where the expense incurred exceeded 126.97 in any one payment it was requiredto be accounted for in the Election Expenses Statement furnished to the StandardsCommission by the election agent or national agent who authorised it. Where theexpense incurred did not exceed 126.97 in any one payment the expense wasdeemed to be a minor expense (see paragraph 4.2(g) above) and was not requiredto be accounted for in an Election Expenses Statement. It should be noted that, inthe majority of cases, the amount of the election expense attributed to a Europeanelection candidate would not have exceeded 126.97 in any one payment.

As a general rule, where expenditure incurred on promoting a European electioncandidate is borne by the local elections candidate (as opposed to his/her politicalparty) it is regarded as a donation by the local elections candidate to the Europeanelection candidate. Donations from the same local elections candidate to aEuropean election candidate must be aggregated and treated as a single donationfor the purposes of observing the disclosure and maximum acceptance limitsapplying to donations made to European election candidates.


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The referendum on Irish citizenship

The referendum on Irish citizenship took place on the same day as polling for the2004 European and local elections. The Standards Commission took the view that

where material relating to the referendum included a reference to a person'scandidacy at the European election it would be regarded as promoting the candidate.If such material was used during the election period, the cost involved would beregarded as an election expense incurred on the candidate's behalf which must beaccounted for by his/her election agent. The Standards Commission is not aware ofany references to European election candidates in referendum material which was inevidence during the election period.

Cross canvassing

Where a European election candidate's election material promoted his/her runningmate, it was regarded as election expenditure incurred by the first candidate'selection agent on behalf of the running mate. This is known as cross canvassing orstrip promotion. In its guidelines for the European election, the StandardsCommission recommended that agreements and authorisations be put in placebetween the election agents of running mates in a constituency to covercross-canvassing.

The proportion of the cost of producing and distributing the material, calculated onthe basis of the extent to which the running mate was featured, should be accountedfor by the running mate's election agent or by the party's national agent. Where thecosts concerned have been borne by the candidate (as opposed to his/her politicalparty) it is regarded as a donation by the candidate to his/her running mate. All suchdonations must be aggregated and treated as a single donation for the purposes ofobserving the disclosure and maximum acceptance limits applying to candidates atthe election.

Where national agents incurred expenditure on material which featured both of theparty's candidates in a constituency, the cost of producing and distributing thematerial was required to be apportioned between the candidates concerned in amanner that reasonably reflects the extent to which each of them was featured in the

material. Expenditure incurred by a political party on behalf of its candidates is notregarded as a donation to the candidates.

Accounting for costs met out of public funds

As stated in paragraph 4.3 above, arising from the judgments in the Kelly case,where goods, property or services were used for electoral purposes during theelection period and the costs were met from public funds, such costs were subject tothe expenditure limit applying at the European election and were required to beaccounted for as election expenses in the Election Expenses Statement furnished by

the authorising election agent or national agent.


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The Standards Commission was mindful of the fact that some candidates at theEuropean election who were members of the European Parliament or of the Dil orSeanad or a local authority may have been required during the election period tocommunicate with constituents on matters connected with their role as public

representatives. In that regard, the Standards Commission recognised that it wasnecessary to distinguish between use of facilities paid for out of public funds incarrying out the normal ongoing duties of a public representative and use of suchfacilities for purely electoral purposes.

The Standards Commission took the view that where facilities were used by acandidate during the election period for the purpose of sending unsolicited electionmaterial to any one of the electorate in the constituency and the cost of so doingwas met out of public funds, this would be regarded as having been for electoralpurposes and the cost would require to be accounted for as an election expense.This would also apply to unsolicited material issued by elected representatives, other

than the European election candidate, where the material either promoted oropposed a candidate at the European election or otherwise brought attention to thecandidacy.

As with any other election expense, the use of facilities paid for out of public fundsmust be authorised by a candidate's election agent or the national agent of a politicalparty. In relation to the European election, it was a matter for the relevant agent andthe candidate, in consultation with the provider of the facilities, to determine the valueof the usage for electoral purposes during the election period and to account for thisin the Election Expenses Statement.

Enquiries received by the Standards Commission regarding the appropriateness ofusing facilities paid for out of public funds for electoral purposes

During the course of the European and local elections, the Standards Commissionreceived a number of complaints from members of the public about theappropriateness of candidates at the elections using facilities for electoral purposeswhich are paid for out of public funds. For the most part, the complaints related topre-paid Oireachtas envelopes.

As already stated above, in the case of the European election, any such use duringthe election period (7 May - 11 June 2004) was required to be costed and accountedfor as an election expense.

In addition to its functions under the Electoral Acts, the Standards Commission hasa supervisory role under the Ethics in Public Office Acts, 1995 and 2001 (the EthicsActs) where that legislation applies to office holders (e.g. members of theGovernment and Ministers of State) and public servants. One of the requirementsof the Ethics Acts is that separate Codes of Conduct for office holders, TDs andSenators and public servants would be drawn up. The Code of Conduct for officeholders was drawn up by the Government and published by the Standards


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Commission in July 2003, prior to the European election. The Codes for TDs andSenators, which are supervised by the Committee on Members' Interests of eachHouse, were agreed by the Dil and Seanad in early 2002.

Section 2.2.3 of the Code for office holders refers to the fact that office holders "are

provided with facilities at public expense in order that public business may beconducted effectively". The section goes on to say that "use of these facilitiesshould be in accordance with this principle". Section 2.2.3 further states that "officialfacilities should be used only for official purposes"and that "office holders shouldensure that their use of officially provided facilities are designed to give the publicvalue for money and to avoid any abuse of the privileges which, undoubtedly, areattached to office".

In light of the foregoing, the Standards Commission is strongly of the view that it isnot appropriate that office holders should use facilities paid for out of public funds forelectoral purposes. Neither is it appropriate that office holders should allow suchfacilities, which are provided to assist them in discharging their official andrepresentational duties, to be used by others. The Chairman of the StandardsCommission wrote to office holders on 5 May 2004 drawing their attention to therelevant provisions of the Code of Conduct and reminding them of the need tocomply in all respect with their obligations under the Code.

Where a person is of the view that an office holder may not have complied with theCode of Conduct, he/she may make a complaint in writing to the StandardsCommission. It is already on record that the Standards Commission had cause tocorrespond with Minister Noel Dempsey and Minister of State Frank Fahey aboutthe use of official resources for electoral purposes. The Standards Commissionconcluded that the Code of Conduct for office holders had not been appropriatelyobserved by either Minister. It is understood that, in both cases, a refund was madeof the costs involved. Any other such cases coming to the attention of theStandards Commission will be pursued.

Provisions similar to those contained in the Code of Conduct for office holders arecontained in the separate Codes of Conduct for members of the Houses who are notoffice holders. As outlined above, supervision of the Ethics Acts in relation to suchmembers is a matter for the Committee on Members' Interests of each House. TheChairman of the Standards Commission wrote to the Chairman of the Dil

Committee on Members' Interests and the Chairman of the Seanad Committee onMembers' Interests on 11 May 2004 drawing to their attention the advice given bythe Standards Commission to office holders.

The Electoral (Amendment) Act 2004

A potential difficulty arose in relation to the definition of election expenses at aEuropean election following the enactment of section 33 of the Electoral(Amendment) Act, 2004. Section 33 of the 2004 Act provides for the deletion ofparagraph 2(a) of the Schedule to the Electoral Acts.


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As outlined in paragraph 4.3 above, the judgment in the Kelly case was that section2(c) of the Schedule to the Electoral Acts was invalid and that section 2(a) of theSchedule insofar as it applies to section 22(2)(b)(ii) of the Act was also invalid.

Section 2(a) of the Schedule insofar as it applies to section 46(2)(b) of the Electoral

Acts (which are the relevant provisions applying to a presidential election) was notdeclared invalid by the Court judgment. It was understood from discussions with theDepartment of the Environment, Heritage and Local Government that legislationwould be introduced to amend section 2(a) of the Schedule to the Electoral Acts inorder that the Court judgment would also apply to presidential elections.

However, as stated above, the amending legislation, section 33 of the Electoral(Amendment) Act, 2004, deleted section 2(a) of the schedule entirely. This meantthat the matters referred to at section 22(2)(b)(i -v) of the Electoral Acts (below) wereno longer specifically excluded from the definition of election expenses.

The free post service provided by An Post to European election candidates.

A free service provided by an individual.

A service provided by an employee of a political party.

Normal media coverage.

The transmission on radio or television of a broadcast on behalf of a candidate ora political party.

A strict interpretation of section 33 raised the possibility that the above matters couldnow be regarded as election expenses if they were captured by the definition ofelection expenses as provided for in section 31 of the Electoral Acts and paragraph1 of the Schedule to the Electoral Acts (see paragraph 4.1 above). The difficultywas compounded by the fact that the commencement date of section 33 of the 2004Act was 19 May 2004 which was in the middle of the election period for theEuropean election.

Having received legal advice in the matter, the Standards Commission decided thatit would not be sensible or appropriate to apply a strict interpretation of section 33 of

the 2004 Act in relation to the recording of election expenditure at the Europeanelection. If the matters referred to in section 22(2)(b)(i -v) of the Electoral Acts(above) were required to be accounted for as election expenses, it is likely that alarge number of candidates' election agents and national agents of political partieswould have exceeded their expenditure limits. The Standards Commission decidedto proceed on the basis that, as candidates' election agents and the national agentsof political parties had conducted their campaigns in accordance with the rules asset out in the Standards Commission's guidelines for the European election, whichwere published prior to the enactment of Section 33 of the 2004 Act, and as theenactment occurred in the middle of the election period, it would be unreasonable torequire them to account for their election expenses on an entirely different basis.


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The Chairman of the Standards Commission wrote to the Minister for theEnvironment, Heritage and Local Government informing him of the position asoutlined above in relation to the European election and alerting him to the difficultiesthat section 33 of the 2004 Act might cause in the context of future elections. TheMinister agreed that doubt had been introduced to this area by the terms of section

33 of the 2004 Act. He stated his intention to bring forward, at an appropriateopportunity, legislative proposals to address the position by confirming that therelevant items are not to be regarded as election expenses.


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Chapter 10

Statutory forms

The Standards Commission produced six forms to cover the requirements of theElectoral Acts in relation to the disclosure of donations by unsuccessful candidates,disclosure of election expenses by candidates' election agents, national agents ofpolitical parties and "other persons" and the reimbursement of candidates' electionexpenses. The forms used by the Standards Commission are as follows :

Donation Statement/Statutory Declaration form for unsuccessful candidates1.(EP/04/DS);Certificate of Monetary Donations/Statutory Declaration for unsuccessful2.candidates (EP/04/CMD).

Election Expenses Statement/Statutory Declaration form for the election agents3.of candidates (EP/04/EES/EA);Election Expenses Statement/Statutory Declaration form for the national agents4.of political parties (EP/04/EES/NA); (This form was tailored in each case toinclude the name, and other details, of the candidate(s) of the party who hadcontested the election.)Election Expenses Statement/Statutory Declaration form for "other persons" who5.incurred expenditure at the European Election (EP/04/EES/TP/OP);Application for Reimbursement of Election Expenses form for qualified6.candidates (EP/04/RA).

On 17 June 2004 a Donation Statement/Statutory Declaration form and a Certificateof Monetary Donations/Statutory Declaration form issued to each of the 31unsuccessful candidates at the election. Candidates were required to return thecompleted form to the Standards Commission by 6 August, 2004 (the fifty-sixth dayafter polling day).

The 13 successful candidates will be obliged to return a DonationStatement/Statutory Declaration and, if appropriate, a Certificate of MonetaryDonations/Statutory Declaration as sitting members of the European Parliament by31 January, 2005. This is an annual requirement for representatives in the

European Parliament.An Election Expenses Statement form and explanatory letter was issued on 17 June2004 to the election agents of candidates (44) and the national agents of politicalparties (7) who contested the election. It was required in all cases that completedforms be furnished to the Standards Commission by 6 August, 2004.

As stated in Chapter 7 above, Election Expenses Statement forms and explanatoryletters also issued to those persons (4) who had either incurred or intended to incurexpenditure pursuant to section 31(7) of the Electoral Acts or were deemed by theStandards Commission to have incurred election expenses at the European

election.


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It is the practice of the Standards Commission not to issue an Application forReimbursement of Election Expenses form to a qualified candidate until such timeas all matters relating to the completion of his/her other statutory returns have beenfinalised.


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Chapter 11

Donation Statements received from unsuccessful candidates

1 Donation Statements and Certificates of Monetary Donations

As stated in Chapter 10 above, unsuccessful candidates at the European electionwere required to furnish their Donation Statements and, where appropriate,Certificates of Monetary Donations, to the Standards Commission by 6 August 2004.Twenty four of the thirty one unsuccessful candidates returned their DonationStatements by the statutory deadline.

On 16 August 2004, the Standards Commission issued a reminder to fourunsuccessful candidates whose Donation Statements were still outstanding at this

point. On 23 August the Standards Commission sent a second reminder to threeunsuccessful candidates whose Donation Statements had not yet been received.Each of these reminders drew attention to the fact that it is an offence to fail tofurnish a Donation Statement by the statutory deadline.

A third and final reminder issued to the same candidates on 30 August 2004. Thecandidates were advised that if the Donation Statement was not received withinseven days, the Standards Commission would consider referring the matter forpossible prosecution.

On 13 September 2004, the Standards Commission wrote to An Garda Sochnarequesting that they investigate the failure of Mr. Gerard Hannan,13 Salmon Weir,Annacotty, Limerick to furnish a Donation Statement. (The Standards Commissionwas previously advised by the Office of the Director of Public Prosecutions to dealdirectly with the Garda authorities, in the first instance, in relation to possibleoffences under the Electoral Acts.) The Standards Commission understands thatAn Garda Sochna is investigating the matter. At the time of going to print with thisreport, a Donation Statement had not been received from Mr. Hannan.

General observations

As provided by section 4(1) of the Electoral Acts, the Standards Commissionconsidered the Donation Statements furnished by the unsuccessful candidates.Sixteen of the thirty unsuccessful candidates who furnished Donation Statementsdisclosed that they had received a donation valued in excess of 634.87 in relationto the election. One candidate, Ms. Maire Hainsworth, disclosed a donation of 350although she was not required to do so. Details of the donations disclosed byunsuccessful candidates at the election are contained at Appendix 2 and Appendix 3to this report.

The Standards Commission was not notified by any candidate at the election of the

receipt of an anonymous donation or the receipt of a donation in excess of theprescribed limit. One candidate, Ms. Patricia McKenna (GP), disclosed a donation


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from a donor who is resident in the United States. Ms. McKenna confirmed on herDonation Statement that the donor is an Irish citizen.

Certificates of Monetary Donations

Seventeen of the thirty unsuccessful candidates who furnished a DonationStatement also furnished a Certificate of Monetary Donations. It is assumed that theremaining thirteen candidates who did not furnish a Certificate of MonetaryDonations did not receive a monetary donation exceeding 126.97 in relation to theelection.


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Details of the expenses disclosed by candidate's election agents and the nationalagents of political parties are contained in Appendices 4 - 8 of this report.

Overspending

The Electoral Acts provide that an election agent will be deemed to have overspentat the election if he/she:

a) exceeds the statutory expenditure limit applicable to the candidate at theelection, or

b) exceeds the amount of the expenditure limit retained by the candidate (thecandidate having assigned a portion of his/her expenditure limit to the party).

A national agent of a political party will be deemed to have overspent at the election

if he/she:

a) incurs expenditure which exceeds the total amount assigned to the party by itscandidates, or

b) incurs expenditure on a particular candidate which exceeds the amountassigned by that candidate to the party.

In considering the Election Expenses Statements furnished to it, the StandardsCommission found no evidence of any election agent or national agent havingoverspent at the election.

Late claims

The legislation provides that all claims for payment of election expenses must bedelivered to the election agent or national agent concerned within 45 days afterpolling day which, in the case of the European election, was 26 July 2004. Claimsfor payment received after this date may not be paid by the election agent ornational agent concerned. It is an offence for an election agent or a national agentto pay a claim for election expenses which was not received by 26 July 2004.

Although late claims may not be paid, they must be accounted for as electionexpenses by the agent concerned in his/her Election Expenses Statement.

One election agent, Mr. Noel McGinley (election agent for Deputy Jim McDaid),accounted for a late claim in his Election Expenses Statement.

Disputed claims

The legislation provides that where a claim for payment of election expenses isdisputed 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 toaccount for the amount which is in dispute when calculating the total amount of


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election expenses incurred. If and when the dispute is resolved, the agent isrequired to notify the Standards Commission of the amount agreed as payable byhim/her and, if necessary, amend his/her Election Expenses Statement. If thedispute is resolved by means of a court order, a copy of the court order must befurnished to the Standards Commission.

One election agent, Ms. Olwyn O'Malley (election agent for Ms. Patricia McKenna),accounted for a disputed election expense in her Election Expenses Statement. Ms.O'Malley has been requested to notify the Standards Commission if and when thematter in dispute is resolved.

Use of property, goods or services where the costs were met out of publicfunds

The election agents of six candidates accounted for the use of property, goods or

services where the costs were met out of public funds. The national agent of theLabour Party also accounted for such use. Details are provided in Appendix 11 tothis report.

The Standards Commission is in contact about this matter with two of thecandidates concerned, Deputies Liam Aylward and Jim McDaid, who were officeholders at the time of the election and with the national agent of the Labour Party.The matter has also been brought to the attention of the Chairman of the DilCommittee on Members' Interests and the Chairman of the Seanad Committee onMembers' Interests in relation to two Deputies and a Senator who were not officeholders at the time of the election.


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Chapter 13

Reimbursement of election expenses

A total of 27 candidates qualified for a reimbursement of election expenses. Toqualify for a reimbursement, a candidate must either have been elected or, ifunsuccessful at the election, must have received, at any stage of the counting ofvotes, in excess of one-quarter of the quota in the constituency.

The Standards Commission is required to certify to the Minister for Finance that acandidate is eligible for a reimbursement of his/her election expenses and that anElection Expenses Statement, completed in accordance with the provisions of theElectoral Acts and the guidelines published by the Standards Commission, has beenfurnished to the Standards Commission in relation to the candidate. The Standards

Commission is also required to notify the Minister for Finance of the expenditureincurred by each candidate and of the reimbursement due in each case.

As stated in Chapter 10 above, it is the practice of the Standards Commission not toissue an Application for Reimbursement of Election Expense

Documents

Donations statement euro elections 2004