Submission to the Minister for the Environment, Heritage and Local Government concerning spending limits at local elections

Introduction

The Standards in Public Office Commission has a supervisory role under the Electoral Act 1997 as amended.  Part V of the Act provides for the limitation and disclosure of expenditure by political parties and candidates at Dáil and European elections.  Since the commencement of Part V of the Act on 1 January 1998, the Standards Commission and its predecessor, the Public Offices Commission, have supervised the limitation and disclosure of election expenses at two Dáil general elections (2002 and 2007), two European elections (1999 and 2004) and eight Dáil by-elections.

Some of the difficulties encountered by the Standards Commission in supervising the limitation and disclosure of election expenditure are contained in a report "Standards in Public Office Commission Review of the Electoral Acts, 1997 to 2002" which the Standards Commission furnished to the then Minister for the Environment, Heritage and Local Government, Mr Martin Cullen TD on 18 December 2003.  This document also suggests possible amendments to the provisions of the Act governing the limitation and disclosure of election expenditure.  A copy of the review document is attached.  The Minister may wish to have regard to this document when formulating proposals for the introduction of expenditure limits at local elections.

It is understood that the proposal to introduce spending limits at local elections is intended to apply to both elections to local authorities and to town councils.  In that regard the Standards Commission is of the view that different spending limits might apply for elections to county councils and elections to town councils.  The Standards Commission does not, in this submission, address the issue of election spending in the context of the direct election of mayors to main towns and cities.  In relation to the possible introduction of expenditure limits at local elections, the Standards Commission would wish to make the following points:

1. General Principle

The purpose of expenditure limits is to create a level playing field for all candidates and to prevent a "free for all" in terms of election spending.  The Standards Commission considers that this principle should underpin any legislation providing for the introduction of expenditure limits at local elections and should inform the limits at which expenditure at local elections might be set.  Limiting election expenditure reduces the dependence of candidates and political parties on political contributions to fund election campaigns and is recognised by the Council of Europe and the Group of Member States against Corruption (GRECO) as an effective tool in combating corruption.

2. Principle of disclosure

The Standards Commission considers that a very important element of the legislation governing expenditure at Dáil and European elections is the requirement that Election Expenses Statements are made available for inspection and copying.  This allows for scrutiny of the documents and is intended, inter alia, to facilitate a more broadly based assessment of reported election spending by interested parties, including, for example, the media, competitors in a constituency and others who are involved on the ground and have detailed knowledge of the level of activity in the case of specific candidate or party campaigns.  The Standards Commission facilitates such scrutiny by posting its report in full (including summary details of the expenses incurred) on its website and by publicising the fact that the material referred to in the report is available at its offices for inspection and copying.

The Standards Commission notes that, under the Local Elections (Disclosure of Donations and Expenditure) Act 1999, members of local authorities and candidates at local elections furnish Donation Statements to the relevant local authority and that these statements must be made available for inspection by the public.  It is evident from enquiries received by the Standards Commission that there is very little awareness among the general public of the availability of this material.  Furthermore, the Standards Commission is not aware of any  efforts of the part of local authorities to publicise the availability of this material.  To ensure that expenditure limits at local elections are adhered to, the Standards Commission considers it essential that statements of expenditure are made available for public inspection and that the availability of such material is widely known.

Where there is a valid complaint that a return furnished to it is false or misleading, the Standards Commission will enquire into the matter and will take whatever further action is appropriate.  International best practice suggests that disclosures of donations and election expenditure should be made to a body which is, and is seen to be, independent in the performance of its functions and which can investigate instances of non-compliance with the legislation.  The Standards Commission recommends that where a valid complaint concerning non-compliance with spending limits at a local election is received, the matter should be investigated by an independent body and not by the local authority concerned. That independent body should also have the power to conduct inquiries or investigations in the absence of a complaint and on its own initiative.

In view of the above the Minister may wish to consider to whom statements of expenditure at local elections should be furnished and to introduce a statutory requirement on the body concerned to publicise the availability of these returns.

3. The election period

The Standards Commission has repeatedly called for change in "the election period" at Dáil and European elections.  Candidates and political parties are required only to account for expenditure on goods, property or services used during the election period.  At a Dáil general election the election period is from the date of dissolution of Dáil Éireann to polling day. During the recent Dáil general election there was much comment about expenditure on campaigns by parties and candidates before the election period.  Such expenditure was not required to be accounted for if the materials concerned were not used during the election period.  There is considerable evidence that many parties "front-loaded" campaign expenditure well in advance of the date of dissolution of the Dáil.

In its review of the Act in 2003, the Standards Commission stated that "Given the level of debate and comment around this issue (the election period) and the potential for such to fundamentally undermine the perceived effectiveness of the legislation, the Standards Commission is of the view that consideration should be given to whether, in respect of a specified period prior to commencement of the legally defined election period, there is a case for imposing some accountability in the context of the spending limits."  This view has been reinforced by the experience of the 2007 election campaign.

It is now clear that the public perception of the legislation is that it is not achieving its stated aim of limiting expenditure at elections by political parties and candidates.  The Standards Commission is in no doubt that the lack of an effective election period at a Dáil general election undermines the purpose of having expenditure limits in place and runs the risk of bringing the provisions of the Act governing election expenditure into disrepute.  There is a danger that if the issue of the election period at Dáil and European elections is not satisfactorily addressed the accounting for expenditure at such elections will be perceived as little more than a paper exercise.

In its 2003 review, the Standards Commission suggested that a practical approach, which would ensure clarity and offer some possibility of effective monitoring, would be to regard as election expenditure all expenditure incurred on any activity within a specified period - perhaps 3 months prior to polling day.  Such expenditure could reasonably be construed as intended to elicit support at the election for a candidate or political party.

The Standards Commission understands that section 26 of the Local Government Act 2001 provides that local elections shall take place every five years and that they shall be held in either May or June in accordance with regulations made by the Minister under section 27 of that Act.  The fact that the date of polling can be reasonably anticipated to take place in May or June would suggest to the Standards Commission that it might be possible to prescribe in legislation a date on which the election period at a local election shall commence.  March 1st is suggested as a possible date.  This would mean that the election period would be in the region of 90 - 120 days and would go some way towards ensuring the effectiveness of expenditure limits at local elections.

4. Spending by unconnected third parties/other persons

The Standards Commission considers that spending by third parties/other persons on goods, property or services for electoral purposes during the election period should be subject to the same limits applying to candidates at the election and should also be disclosed.

5. Appointment of election agents

Under the Act candidates at Dáil and European elections are required to appoint an election agent who is responsible for expenditure incurred on the candidate's behalf at the election.  A candidate may act as his/her own election agent.  The Standards Commission considers that the emphasis at local elections ought to be to encourage candidates to account for their own election expenses.  In any event, the Standards Commission considers that candidates should be required to give details of the person responsible for accounting for their election expenditure to the body supervising such returns rather than to the Returning Officer as is currently the requirement with regard to candidates at Dáil and European elections.

6. Spending by the national agent

Under the Electoral Act there is not a prescribed amount which a political party may spend at a Dáil or European election.  The spending limits prescribed in the legislation are for candidates only and are determined by the amount of seats in the constituency for which the candidate is standing.  The amount which a political party's national agent can spend at a Dáil or European election is determined by the amounts assigned to it by its candidates from their statutory spending limits.  The Standards Commission is of the view that at local elections the amount which a political party can spend on its national campaign should be determined by the number of candidates standing for the party at the election.  The party may only use this spending for its national campaign (i.e. leaders tour, party political broadcast etc.) and may not use this spending on individual candidates.  Where a political party (either headquarters or local organisation) proposes to spend money on an individual candidate it should be authorised by the candidate (or his / her election agent if an election agent has been appointed) to do so.  This spending would form part of the individual candidate's spending limit.

Conclusion

These are the main points which the Standards Commission considers should be considered in framing legislation to provide for expenditure at local elections.  The staff of the Standards Commission secretariat are available to meet with the Minister's officials to discuss these and any other issues relating to supervising election expenditure.