JOINT COMMITTEE ON EUROPEAN AFFAIRS debate -
Tuesday, 28 Apr 2009

Report on Referendum on Treaty of Lisbon: Discussion with Standards in Public Office Commission.

Chairman

Apologies have been received from Deputies Dooley, Costello and Timmins — Deputies Costello and Timmins have returned from a visit in connection with the Lisbon treaty — and Senators Quinn, Cummins and Donohoe. No. 1 on the agenda is a discussion on the report of the Standards in Public Office Commission, "Third Parties and the Referendum on the Treaty of Lisbon". I welcome from the commission Mr. David Waddell, Mr. Aidan Moore and Ms Jacqueline Moore. Mr. Waddell will make a presentation on the report and outline the recommendations made for a review of the relevant legislation. The responsibilities of the commission with regard to third parties are defined in the Electoral Act 1977, as amended, which defines "third parties" and sets out the rules governing the acceptance of donations.

As members will know, the report was produced in response to a request by the Minister for the Environment, Heritage and Local Government for a report on the experience of the Standards in Public Office Commission of operating third party provisions as they applied at recent referenda. The commission provided the report for the Minister and recommended four areas where it considered the third party provisions of the Act might be improved — the criteria for registration as a third party, registration for a particular campaign, transparency in funding and expenditure on campaigns and sanctions for non-co-operation with the Standards in Public Office Commission. We will hear more about this from our guests and will consider whether we can support the recommendations or suggest improvements.

Before Mr. Waddell begins, I draw attention to the fact that while members of the committee have absolute privilege, this does not apply to witnesses appearing before the committee. Members are reminded of the parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable.

The normal procedure at the committee is that presentations last approximately ten minutes, following which members are given the opportunity to ask questions. Delegates may then make closing remarks.

Mr. David Waddell

I thank the Chairman and members of the joint committee for the invitation to attend. The Standards in Public Office Commission has asked me to concentrate on what it believes are the key points in its report, which was published on 13 March. The Chairman has summarised very well our main recommendations with regard to legislative change. I would like during the next ten minutes or so to outline the background to the existing legislative provisions, set out the definition of "a third party", summarise the obligations of a third party, deal with our work in the supervision of third parties in respect of the Treaty of Lisbon and outline some of the difficulties we face in this regard. I will then move on to deal with the recommendations for change.

It is important to stress that, while the Electoral Act 1997, as amended, provides for the limiting of expenses at Dáil, European and Presidential elections, it makes no provision for the limiting of expenditure in referenda. This applies to political and third parties. Prior to and during the campaign last year concerns were expressed about expenditure by a number of groups and how such expenditure was being met. Concern was also expressed that third parties campaigning at a referendum would not be required to disclose details of donations received by them. At the commencement of the campaign the Standards in Public Office Commission clarified that, unlike political parties, elected representatives and candidates at elections, third parties were not required to disclose details of donations received by them.

As stated by the Chairman, we were invited by the Minister to prepare this report, a copy of which we sent to him on 10 March. It deals with the definition of "a third party" as set out in section 22(2)(a) of the Act, as amended. “A third party” is defined as any group or individual, other than a registered political party or election candidate, which accepts in a particular year a donation exceeding €126.97, which is equivalent to IR£100. The Act defines “a donation” as any contribution given for political purposes. In so far as third parties are concerned, the definition of “political purposes” includes campaigning at a referendum. A third party which receives such a donation is required to register with the Standards in Public Office Commission, open a political donations account and then make an annual return to the commission, comprising a bank statement detailing the transactions on that account in the previous calendar year and a certificate of monetary donations. The certificate certifies that all donations, namely, all moneys given for political purposes, have been lodged to that account and all payments from that account have been used for political purposes. The certificate is accompanied by a statutory declaration. It is an offence for a responsible person of a third party to fail to furnish the certificate or bank statement to us. It is important to note that the Standards in Public Office Commission is prevented by law from disclosing the contents of a certificate of monetary donations or a bank statement, unless ordered to do so by a court or unless such disclosure is required in connection with an investigation held by the commission.

There are other provisions in the legislation which also apply to third parties. These deal with what are termed prohibited donations. A third party cannot accept an anonymous donation exceeding €126, a foreign donation or a donation from the same person in the same calendar year exceeding a total of €6,300. The law requires that if a third party does receive such a donation, namely, an anonymous donation, the Standards in Public Office Commission must be notified and the donation or its value remitted to us within 14 days of receipt. It is an offence to fail to do so. If a foreign donation is received, the third party must return it to the donor and the record of its return must be kept or remitted to us. Similarly, if an excessive donation is received, the third party must return it to the donor or, in the case of amounts which partly exceed the limit, remit the information to us. It is an offence for a third party to fail to take these appropriate steps.

A total of eight groups registered as third parties for the campaign on the Treaty of Lisbon. Prior to the campaign, we received legal advice that the provisions of the Act relating to third parties would not apply to individuals or groups which lacked a presence in this jurisdiction. We have also been advised that an individual or group which uses his or her or its own resources will not be required to register as a third party because it has not accepted a donation given for political purposes.

The Act allows the Standards in Public Office Commission to make whatever inquiries it deems fit for the purpose of carrying out its duties. We made inquiries of a range of third parties and wrote separately to Libertas, Coir, the Campaign Against the EU Constitution and the Irish Alliance for Europe about the possible receipt of loans. At the time of writing the report, the Campaign Against the EU Constitution, Coir and the Irish Alliance for Europe had informed us that they were not in receipt of any loans to finance their campaigns. Libertas had already informed the commission of a loan provided by Mr. Declan Ganley and it subsequently informed us that it did not receive any other loans to finance its campaign. A copy of the loan agreement between Libertas and Mr. Ganley was provided on 31 March. Following media reports, the commission decided to make certain other inquiries of Libertas in order to ensure it had complied with its obligations under the Act. These inquiries are set out in some detail in the report to the Minister. I can confirm that the commission recently received a response from Libertas on each of these matters and intends to include these responses in its annual report which is in the final stages of preparation.

In regard to recommendations for improvements to the legislation, the commission's experience of policing these provisions and, in particular, the 2008 referendum has highlighted what it believes are significant weaknesses in the legislation in respect of third parties. While we welcome the Minister's stated intention to review the disclosure requirements, we suggest the review should encompass all the provisions of the Act pertaining to third parties. A consultation process ought to be entered into with stakeholders on the funding of what are loosely described as political campaigns organised by third parties. This consultation process should try to establish whether all political campaigns should be covered by the Act's provisions rather than only those which relate to elections or referendums. The commission favours the latter option.

In its recent report to the Minister the commission recommended improvements to the third party provisions of the Act in four areas, the first of which is the criteria for registration as a third party. If the activities of third parties are to be regulated effectively, registration should be based on a declared intention to incur expenditure in a particular election or referendum campaign rather than on the motivation of actual or potential donors. It is difficult for a third party or the commission to discern the motivation of a donor.

The report suggests that if a third party announces that it intends to spend more than a particular threshold — we suggest €5,000 — it should be required in law to register, to account for that expenditure and to declare any donations it has received. That recommendation has implications for political parties that campaign in referenda. The Standards in Public Office Commission believes it would be unfair to place an onerous requirement on third parties but not apply the same requirement to political parties. The legislation should allow registration for a particular campaign or on an ongoing basis. The third recommendation is about the transparency of funding and expenditure on campaigns.

The fourth recommendation is a general provision on sanctions for not co-operating with the commission. The Act provides for various offences, but failure to co-operate with the commission's inquiries does not constitute an offence. The commission believes it should. That concludes my presentation.

Chairman

Thank you. The committee has had cause to debate a number of these matters in the past 12 months or so, but it has done so in a vacuum. I heard with interest today a radio interview with a principal of one of the organisations you mentioned, during which there was reference to the report.

Senator Déirdre de Búrca

I welcome the representatives from the Standards in Public Office Commission and thank them for their report and the important set of recommendations they have made. We must not be complacent about our democracy. The commission's role in monitoring expenditure on elections, election processes and so on is an important one because the public has a right to know who funds the parties and individuals that put themselves forward for election. Likewise, when we have important referenda, the public has a right to know who funds the campaigns that advocate support, or otherwise, for the various propositions. I agree with Mr. Waddell that the 2008 referendum highlighted serious flaws in legislation and I commend the Standards in Public Office Commission on responding so quickly and providing the Oireachtas with these recommendations. I sincerely hope they will be acted upon.

In playing out any referendum campaign or election it is important to have a level playing field so that those who participate operate from the same basis and are subject to the same requirements for transparency. It is in the public interest to know where funding for various campaigns comes from, but it is also important to understand the agenda of those who promote particular viewpoints or positions. In recent years, political parties have been subject to much more stringent controls over their funding and their expenditure on elections, referendum campaigns and so on. That is a good thing. Our democracy is all the better for having those safeguards in place.

What seems to have been highlighted by the 2008 referendum is that third parties seem to enjoy freedom or to be exempted from some of the controls that are in place to ensure full transparency on the part of political parties. The emergence of Libertas as a campaigning organisation around the time of the referendum on the Lisbon treaty made us very aware of the impact such third parties can have. There was also legitimate public interest in from where funding had come for what appeared to be an extremely well-resourced campaign. While the political parties who engaged in that referendum campaign had to be clear and transparent about the source of their large donations, the same conditions did not seem to apply to Libertas.

It is almost a year since the Lisbon referendum was held. Will Mr. Waddell indicate whether the Libertas organisation is in compliance with the requirements of the Standards in Public Office Commission concerning donors and spending on the referendum campaign? Is Libertas considered to be in compliance with the requirements of the legislation?

I am concerned that if those recommendations are not implemented, in future we could find ourselves in a position where private individuals and organisations set up around them could operate on the basis of a very opaque agenda, and one which the public has no opportunity to establish whether it would support or not. It is important that we put these recommendations in place so that we create a level playing field and ensure we have a strong democracy.

The term "the best democracy money can buy" was used by the journalist Greg Palast. If we do not put these safeguards in place there is a danger that we will end up with individuals and organisations being able to buy the outcome of elections or referendum campaigns. That would not be in the interests of democracy. We have all seen examples of businessmen buying football clubs and whatever takes their fancy at the time, but our democracy is too precious for that. I very much support the recommendations that have been made today. My party is willing to support them and ensure they are enacted in legislation.

Deputy Michael McGrath

I welcome the delegation from the Standards in Public Office Commission. I thank Mr. Waddell for his opening comments.

Senator de Búrca has raised a number of issues and I wish to follow up on a few points in particular. First, we would all like to see improved transparency regarding third parties in particular and their participation in any election in this jurisdiction. The current legislation is pretty robust in terms of registered political parties, with some exceptions, which the report has highlighted. I am sure the Minister will examine the areas that have been identified for tightening up.

There is a clear deficit in terms of transparency of third parties. The participation of a number of groups in the Lisbon referendum campaign has highlighted those inadequacies and in that regard I welcome the report from the Standards in Public Office Commission. I expect that the recommendations will be enacted to ensure the loopholes are closed. It is essential that single issue groups or lobby groups which emerge during a referendum campaign are subject to the same rigorous compliance procedures as all political parties. If anything is to be learned from the Lisbon treaty in terms of it being an act of democracy, that must be taken on board and these issues must be addressed.

I would like to ask Mr. Waddell a few questions. Some of the third parties that registered during the referendum on the Lisbon treaty, such as Libertas, are now participating in the European Parliament elections. While the report makes clear that the limit on expenditure applies to those third parties, are they required to disclose donations arising from their participation in the European Parliament elections? I understand they are subject to the expenditure limit, but must they now disclose donations received?

Like the Chairman, I also heard Mr. Ganley's interview on Newstalk at lunchtime. The interviewer asked him about this report and why information on a loan agreement between Mr. Ganley and Libertas had not been provided to the Standards in Public Office Commission by the time this report was going to print. He gave a rather convoluted answer that he assumed the deadlines were the same as the previous year and that there was some confusion about these deadlines. Perhaps we can take the opportunity today to clear that up. Can Mr. Waddell outline the extent of the correspondence and the reminders that were issued to Libertas on the requirements with which the party had to comply? That should be cleared up for the public record.

Mr. Waddell has confirmed that the details of that loan agreement have since been provided, but in pages 12 and 13 of the report, he refers to a couple of other matters which were outstanding at the time of going to print. These related to the participation of some of the employees at Rivada Networks. Mr. Waddell had sought details from Libertas of the employees who had worked on the referendum campaign, and he said that these details had been outstanding at the time of going to print. Can he confirm if they have now been provided? He also raised a number of questions about the booklet that was distributed by Libertas, its cost and why it was not regarded as a donation by the organisation. Can he clarify if other issues that were not clarified at the time have since been cleared up? I would be most interested about the extent of contact the Standards in Public Office Commission has had with Libertas regarding the loan agreement with Mr. Ganley. What opportunities were given to the party to comply with the clear requirements that were set out?

Deputy Beverley Flynn

I thank the witnesses for their presentation. Is the commission completely satisfied that the obligations on referendum campaigns, limited and all as they are, were fulfilled by all parties, including third parties? Mr. Waddell stated that he received a number of legal inquiries as to how third party provisions of the Act would apply. Is it possible to ask where those inquiries came from? The advice given to the commission stated that the provisions of the Act would not apply to individuals or groups which did not have a presence in this jurisdiction. Who raised that query which prompted the commission to get that legal advice?

Chairman

I have just a couple of other comments to reinforce the points raised by the committee members. A considerable amount of influence was effected by organs outside the State, including a couple of media outlets which I will not name. At least two major publications with a circulation here led a very strong campaign. Sound opinions were generated from the London School of Economics and from another location on the radio and in most cases, these opinions went unchallenged. The balance required by the Standards in Public Office Commission and by the McKenna and Kelly judgments was not there on individual programmes or shows. An unchallenged opinion, usually coming from a source outside the jurisdiction, was heavily influential in arriving at the decision the people eventually made.

A couple of other points occurred to me. I wonder if it might be possible to clarify the donation limit of €126.97. What is to stop a well-organised group with a wide network from breaking large donations into amounts under that limit, which would mean it would not need to make a return? If I were the head of a large international group, I could organise this. It is possible that a referendum could be open to manipulation by people outside the jurisdiction who could have access to large scale funding.

The definition of "third party" is fine. A number of groups did not register for the 2004 European and local elections such as hospital support and health services action groups, community alliances and so on. However, some have registered for incurring election expenses. How can they not register as a political entity or a third party, yet, at the same time, register as having incurred election expenses? Is that not open to abuse? There must be a reason for that. Will Mr. Waddell comment on that?

Some of these organisations were opposed to the Lisbon treaty. Every committee member was in favour of the Lisbon treaty for good reason but we respect the right of those who opposed it. However, the implication of the McKenna and Kelly judgments is the promotion of the case must be balanced while clarity in the sources of funding must be provided. They have interfered hugely with the democratic and electoral processes and there is an urgent need to revisit the legislation that resulted from them. Long before the legislation was introduced to organise the conduct of campaigns, referenda took place and decisions were taken by the electorate of their own free will regardless of who was in favour or who was against them. Protecting the electorate to make the decision of their own free will or encouraging them into an area whereby they have a 50-50 chance on either side leads to confusion.

A number of the groups that did not register but were informed of the possibility of their need to register did not respond at all. Was that followed up? I would like clarification on these issues.

Senator John Hanafin

I refer to the issue raised by the Chairman about the equal treatment of the two sides in a referendum. I am very much at variance with his view, although I respect him in many ways.

While practically every political party supported the referendum on divorce, the result was decided by less than a half of 1% of the population. This transpired despite full funding of the campaign by the State to the tune of many millions. Analysis at the time stated that the value of the money spent was of the order of 3% of the vote. While I might have strong views on the absolute necessity of the Lisbon treaty being carried this time, we must remain circumspect, bearing in mind what happened in respect of other referenda. For this reason, I do not agree with my colleague, the Chairman.

Chairman

I do not wish to find myself in disagreement with my esteemed colleague, Senator Hanafin. However, I would have thought that the case made by him underlines what it is I was trying to say, namely, that the Irish people have in the past made their own decision regardless of the forces or aid on either side. The public came to a decision that was not in accord with the group, groups or parties that appeared to play a dominant role during the course of the campaign. I respectfully suggest that Senator Hanafin has made my case better than I.

The fundamental issue is whether a referendum should take place. Whatever groups or parties wish to campaign on the matter should have their view, as has always been the case. In recent times, there has been rebalancing of views. We have a condensed version of the views of all sides, the result of which has been the creation of a great deal of confusion. At the end of the day, people were confused. This is what we were being told on the ground during the campaign on the last referendum. I can understand the reason for that confusion.

Senator John Hanafin

I take this opportunity to reiterate my support for the Supreme Court decisions in the McKenna and Hanafin cases, which upheld the difficulty of Government supporting a particular line. We must ensure equal treatment regardless of our strongly held view that the Treaty of Lisbon should be passed.

Chairman

While I do not wish to prolong this argument, I can assure the Senator that I can set out many instances wherein equal treatment does not prevail. My point is that when we begin to organise or tweak democracy, we then reach a stage where democracy no longer functions. The general public relies on the fact that democracy is now being organised and does not participate or engage to the same extent as all is organised for them. While we cannot debate the issue now, I would be interested to debate it with the Senator in the future.

Mr. David Waddell

The Chairman has given me a great deal to respond to. I preface my response by saying that I regret I must confine my answers to the remit of the Standards in Public Office Commission which does not have jurisdiction in terms of regulating the media, broadcast or print. As a citizen, I am as interested as anybody in this issue and I am aware of the debates concerned. However, I cannot state the commission's view in that regard.

Chairman

It is an important point on which, perhaps, the commission should have a view as input from bodies, groups or agencies outside of the jurisdiction may, if properly directed, negative efforts within the jurisdiction on one side or the other. That is a serious possibility.

Mr. David Waddell

The commission would require statutory powers to regulate that area. We are speaking in this regard of broadcasting and media law. Other agencies also operate in this field. Our remit extends to transparency of funding, disclosure of donations and, as I have described, the regulation of third parties. As Senator de Búrca pointed out, political parties are subject to stringent controls in regard to the disclosure of donations. Tomorrow the commission will publish its report on donations disclosed by Deputies, Senators and MEPs. Its view is that electoral law must evolve and be subject to scrutiny if it is to be able to improve continuously. Its annual report following the 2007 general election suggested citizens were entitled to know how political parties funded their general election campaigns and how they spent their money. The report noted that there was a mismatch between the expenditure disclosed to the commission and the donations disclosed during the previous year. The commission has noted the requirements of the United Nations Convention against Corruption and the recommendations of the Group of States against Corruption, GRECO, on the funding of third parties. It has advised that political parties and third parties should be required to publish audited accounts and furnish such accounts to it as an independent body in order that both sides of the balance sheet can be seen.

The report makes it clear that there are significant gaps in the regulation of third parties. I have been asked whether the commission is satisfied that Libertas is at this point fully compliant with the legislation. As required by the legislation, Libertas submitted its annual returns to the commission by 31 March, the deadline to which others have referred. As the report explains, a separate line of inquiry was pursued in regard to media reports on the funding of Libertas throughout the campaign but 31 March 2009 was not the deadline for replying to these questions. The inquiry commenced in August 2008 and continued throughout the autumn and into the new year. It was a source of considerable frustration to the commission that what it saw as reasonable inquiries did not elicit a timely response. Libertas was not the only third party which did not respond in good time because it was accompanied in this regard by the Irish Alliance for Europe. For this reason and in the light of its previous experience in dealing with third parties, the commission has called for the imposition of sanctions on those who fail to reply to its inquiries. The legislation provides for an offence where a third party fails to provide its certificate of monetary donations and bank statements by 31 March each year. The report points to other anomalies in the legislation in that it is not an offence for a third party to fail to open a political donations account. If it does not open such an account, it does not have to provide a bank statement.

This is a complex matter and I agree that one must be cautious when tampering with the democratic process. However, we are glad that the Minister proposes to take account of the commission's views which are based on the operation of these provisions over a period of several years.

I was asked about the various inquiries the Standards in Public Office Commission made with Libertas, the first of which was on the issue of the responsible person. That is a technical term. The legislation requires each third party to nominate a responsible person, who is then responsible for complying with the legal requirements and may be found guilty of an offence if the requirements are not complied with. Mr. Naoise Nunn, who was the responsible person at Libertas, resigned from that position on 19 September 2008, but details of his successor as responsible person were not supplied to the commission until 31 March 2009.

The Standards in Public Office Commission opened four separate areas of inquiry with Libertas. The first concerned employees of Rivada Networks. It was suggested that persons employed by Rivada might have been paid by that company while they were working for Libertas on its referendum campaign. If that was the case, it could be regarded as a donation to Libertas, and if the total payments exceeded €6,300, it would be a prohibited donation. The commission sought an assurance that this was not the case. During the commission's inquiries, Libertas confirmed that those who worked on the campaign did so in their spare time and on a voluntary basis, which would not constitute a donation. The commission looked for other information, but I will not go into all the details as much of the matter has been in the public domain. The details were supplied to the commission on 30 March.

The second area of inquiry concerned the use of a book — the readable version of the Lisbon treaty produced by Jens-Peter Bonde, which the commission understood was available from www.eubookshop.com at a price of €20. It was reported that the book sold for €20 and that Libertas had been given 35,000 copies by the Foundation for European Democracy. The commission was concerned to establish the facts so it sought a response on the matter from Libertas. On 13 August 2008, Libertas confirmed that it had received a number of free copies of the book but claimed that it did not contain a political message. The commission felt that did not answer its inquiries and that there was a cost attached to the resource that had been provided to Libertas, so the commission made further inquiries. Regrettably, answers were not received until 30 March.

The report also details the commission's inquiries on the loans that were provided to Libertas. It first wrote to Libertas to request details of the loans on 19 June 2008. The reply that was received on 13 August 2008 confirmed that there was a detailed legal agreement. We sought a copy of that, but it was not supplied until 30 March 2009. We state in the report, which was published on 13 March, that Libertas had not supplied the information at the time of writing. That information has now been supplied and the commission is considering it. That is all I can say on that point. The answer to the question is that the commission understands that Libertas is fully in compliance with its legislative requirements at this time.

I move on to our other inquiries. Some third parties did register, but they are not required to disclose donations or expenditure at a referendum.

Another question related to whether a third party or another person is registered with the Standards in Public Office Commission. That is a source of confusion in the legislation. The only obligation under this Act is to supply the certificate of monetary donations. If an individual campaigns in an election or runs as a candidate in that election then he or she is required to abide by the same obligations that apply to candidates at elections. I am sure all members are aware that a candidate in an election is required to fill out onerous documentation and supply it to the Standards in Public Office Commission. We tend to keep in touch with candidates regularly about those requirements. Some are better than others in terms of compliance. In the 2007 report on the elections, the Standards in Public Office Commission expressed its appreciation to general election candidates who, virtually without exception, despite it being the aftermath of the election, worked hard to fulfil all of those requirements.

I have dealt with the question about confusion over deadlines. I did not have the benefit of hearing that interview on Newstalk at lunchtime so I cannot comment on it. There has been some confusion about the deadlines of the Standards in Public Office Commission. I repeat that the statutory deadline is the 31 March deadline and that relates to the supply of the certificate of monetary donations and the bank statement. Generally, when the Standards in Public Office Commission makes other routine inquiries under section 4(4) it tends to do so in an informal manner after which its tone gets a little bit more strident. It may set a deadline for reply within seven days or 14 days or else. There were occasions when that warning was given to a number of third parties and it was not complied with. Hence, our suggestion or recommendation that there would be a sanction for failure to reply to the inquiries of the Standards in Public Office Commission.

We received inquiries from a number of European political groups. One was the federation of European socialists. Another inquiry was received from Jet Europe. A third inquiry was made by Ms Kathy Sinnott, MEP, regarding the funding of the referendum campaign in Ireland and whether funds from outside the jurisdiction could be used. That was the reason we took legal advice and we notified the Minister at that time of the contents of that advice. The tone of that legal advice was that Irish law does not apply extra-territorially and that is the reason for that advice.

Chairman

If I might intervene, I accept that legal advice. I emphasise I am not a lawyer. However, the use of bodies, groups, agencies or funds from outside of the jurisdiction could have a serious impact on the outcome of a constitutional referendum and serious implications for future referenda. In theory, one could say this was a Europe-wide referendum but it was not, it was an amendment to the Constitution to legalise the Lisbon treaty. That would have serious consequences. I am aware of the bodies and groups that have expressed an interest in becoming involved. As far as I can recall, one of the people who made inquiries of the Standards in Public Office Commission was seen in the European Parliament celebrating the loss of the referendum in Ireland. I am not certain all of the people who attended that celebration were as friendly to Ireland as they might have proclaimed.

Mr. David Waddell

Indeed. What we did was to establish to our satisfaction what was the precise legal position. We notified the Minister of it at the time.

Underlying the recommendation that there be transparency and accountability in the funding of referendum campaigns is the idea that third parties and political parties ought to be required to account for their donations and sources of funding during the referendum campaign. They should also be required to account for how they spend that funding. This would highlight funding from outside the jurisdiction.

It is important to point out that foreign donations are prohibited under the legislation.

Chairman

As long as one can identify them.

Mr. David Waddell

Evidence is obviously needed to establish an offence.

Chairman

I am sorry to interrupt, but a particular campaigner suggested in a television debate that many of the donations were very small and were not recordable under existing legislation. A whole variety of people could have made donations under the limit of €126.97, and these people could have been used in order to obtain funding. I watched the interview in question very carefully. It was quite clear what was being said. Is there any way this can be policed so these things can be identified?

Mr. David Waddell

It is very important that citizens of the State are interested in politics and contribute to political parties and non-party candidates. The church gate collection, raffles or any of the other traditional means of fund raising involve collecting a form of donation from people whose identity may not be known to the person collecting them. However, the law clearly states that donations above €126.97 cannot be anonymous.

The Chairman asked whether it is possible for somebody to fragment those donations. It is possible.

Deputy Michael McGrath

I want to make a few comments, particularly about the book that was distributed by Libertas and which it received free of charge. Has the Standards in Public Office Commission concluded its deliberations on that matter? At a market value of €20 each, 35,000 books comes to €700,000. If that book is relevant to the Libertas campaign against the Lisbon treaty, which it clearly was, then surely that is a donation which is well in excess of the €6,000 limit and would therefore constitute a prohibited donation. What is Mr. Waddell's rationale for his conclusion on that, if he has come to a conclusion? At face value, it appears to be a donation that was relevant to the campaign led by Libertas and, therefore, would have been prohibited under legislation.

How does the Standards in Public Office Commission check whether the time spent by employees of Rivada Networks on the campaign was voluntary time or work time for which they were paid? This is an important question, because it would constitute a prohibited donation under the legislation if they were performing duties for Libertas while being paid for time spent with Rivada Networks.

It seems to me that there is no enthusiasm whatsoever at Libertas for its dealings with the Standards in Public Office Commission. From what we have heard today, the response of Libertas was characterised by procrastination and obfuscation. The party was certainly dragged kicking and screaming to give answers. For example, it took six to seven months to get an answer from Libertas on the responsible person which, under the legislation, had to be notified to the Standards in Public Office Commission. It should be placed on record that the facts, which have been clearly demonstrated here today, bear no relationship to the spin emanating from Libertas about its co-operation with the Standards in Public Office Commission. No such spirit of co-operation obtained and while Libertas might have complied with the letter of the law — I use the word "might" because of the earlier questions I asked — it certainly did not comply with its spirit and this should be noted.

Deputy Beverley Flynn

Libertas did not delay for six months in respect of one issue alone. It delayed for six months on the responsible person, the book and on the loan agreement. What follow-up did the commission make? Were its initial inquiries followed up with telephone calls or did it simply sit back and await a response? Did any other third party or political party leave the commission sitting for six months without getting a response?

Mr. David Waddell

While my colleague, Mr. Moore, also may wish to come in on this point, I cannot say too much about the four areas because this matter is still under consideration by the commission. However, I can state that the author of the book, The Lisbon Treaty: The Readable Version, has stated that he offered it to all parties in the referendum and that the number supplied was much less than and only a fraction of 35,000.

Deputy Michael McGrath

Offering it to all parties does not mean it was not a donation to Libertas. It accepted it.

Deputy Beverley Flynn

Did those who took it up disclose it as a donation?

Mr. David Waddell

Third parties are not required to disclose donations. While donations are not disclosable, their bank statements are supplied to us but are not public documents. This is the difference between a third party and the more transparent arrangements that apply to political parties.

Chairman

As Mr. Waddell has seen that document and given that the public has not seen it, would he like to comment on it?

Mr. David Waddell

I cannot, and my opinion is of no relevance. The considered views of the members of the Standards in Public Office Commission are important in this regard.

Deputy Michael McGrath

The books, which will not appear on Libertas's bank statement, have a market value of €20. I presume it admits to having received and distributed 35,000 copies, which have a market value of €700,000. If the commission concludes this was relevant to its campaign and was supportive of its perspective on the campaign, then it constitutes a donation.

Mr. David Waddell

A donation can be of money, services or indeed a book, which are given for political purposes. The term, "political purposes" — this is outlined in detail in the report — has quite an extensive definition in the legislation. We state we are satisfied that attempting to influence the outcome of a referendum one way or the other is one such purpose. However, if the text is offered to all parties in a campaign, is it an attempt to inform the public or to sway them one way or the other? It is quite different, depending on how a particular resource is used. This may be what the Deputy has in mind.

Deputy Michael McGrath

It depends on by whom it is used.

Mr. David Waddell

Precisely. Who chooses to use it?

Deputy Michael McGrath

I submit that the offer to every other party is of no relevance.

Mr. David Waddell

Yes, indeed.

Chairman

I apologise for interrupting again and emphasise that unlike other members, I am not a legal person. However, to my mind the offer of a document that is of benefit to one side specifically constitutes a serious breach of the rules and should be included as part of a donation, subscription or whatever the commission may call it. It begs the question as to how the commission concluded this was not an item that should be accounted for in that fashion. For example, in a political debate or election, I could supply my opponents with all the negative material I wished on the basis they could distribute it, in the full knowledge they would not do so. I would not accept a legal opinion that enabled me to use this reason to distribute a similar amount of the same material that was beneficial to me.

Mr. David Waddell

The commission has not announced its conclusions. What I say in the statement——

Chairman

When will it do so?

Mr. David Waddell

It is considering them and is preparing its view. It will be included in its annual report.

Chairman

When will the annual report be published?

Mr. David Waddell

A requirement of the Ethics in Public Office Act is that the annual report must be supplied to the Minister prior to 30 June in the calendar year following the——

Chairman

That will be completely irrelevant, in so far as the referendum is concerned. Moreover, the next referendum will be over and done with before then. Does Mr. Waddell refer to 30 June of this year?

Mr. David Waddell

Yes, and the report is in the final stages of preparation.

Chairman

In respect of last year's referendum?

Mr. David Waddell

No, I refer to the Standards in Public Office Commission's annual report.

Chairman

The question is, in respect of the last referendum and in so far as the commission's annual report deals with what took place in the course of that referendum, will it be published by 30 June 2009?

Mr. David Waddell

No, it will not be published. The requirement is to supply it to the Minister. Typically, it is supplied to the Minister for Finance prior to that date and then it is up to the Minister to lay it before the Houses of the Oireachtas at which point the commission is free to publish the report.

Chairman

I apologise for all the interruptions.

Mr. David Waddell

I am sorry I cannot give the joint committee complete answers on this matter.

Chairman

We are aware of that.

Mr. David Waddell

Deputy Flynn asked what follow-up took place with this third party and with other third parties. We make it clear that Libertas is not the only third party that failed to co-operate. The Irish Alliance for Europe was a further example although it subsequently has done so. Typically, our inquiries are carried out in writing and may involve correspondence with the legal representatives of the third parties.

I should make clear one further point regarding references in some reports to information being leaked by the Standards in Public Office Commission. I wish to assure members and the Chairman that this was never the case. A freedom of information request was made to the Standards in Public Office Commission which, like many public bodies, is subject to the Freedom of Information Act and material was released, as is required by law, in respect of the commission's dealings with Libertas and with other parties. That was the subject of extensive press and broadcast comment.

Deputy Beverley Flynn

May I follow up on this matter? When the commission wrote to legal representatives of third parties such as Libertas, did it simply await a response or did it follow it up with many letters? I wish to ascertain what the commission did.

Mr. David Waddell

We followed it up.

Deputy Beverley Flynn

Did it do so monthly?

Mr. David Waddell

At least.

Deputy Beverley Flynn

Very well. Consequently, there was a clear intent not to co-operate with the commission.

Mr. David Waddell

I can state there was a long delay——

Deputy Beverley Flynn

The commission was ignored.

Mr. David Waddell

—— in answering our inquiries.

Deputy Beverley Flynn

Perhaps the confusion regarding how much Libertas spent on its campaign, whether it was €1.3 million or €800,000, might be accounted for depending on whether the book is recognised as a donation. I presume this formed part of the commission's inquiries.

Mr. David Waddell

The Standards in Public Office Commission will make what it perceives to be all reasonable inquiries and has done so. I cannot say any more than this at present.

Deputy Beverley Flynn

Mr. Waddell has answered the question.

Senator Déirdre de Búrca

Had a political party received 35,000 copies of a book, would that have been considered a donation? The second question pertains to sanctions. Mr. Waddell commented earlier on the lack of sanctions available in the event that a third party does not comply with the commission's requirements. Were Libertas not to respond or to fulfil the requests made by the commission, is it the case that absolutely no sanction applies at present? In other words, Libertas is responding and providing the commission with information because it sees fit to so do. However, were it to choose not to do so, neither Mr. Waddell's organisation nor the Government could do anything to so oblige it and it would be free to disregard all communications from the commission, if it so chose, without any consequences.

Mr. David Waddell

I refer to a scenario in which a large volume of copies of a text was given to a political party in the State and their value exceeded the threshold. The requirement is that it would have to be given for political purposes. This is the motivation of the donor to which we point. One goes to the donor and asks why he or she gave that. The donor may reply that it is as a public information exercise. This is the difficulty for the Standards in Public Office Commission. If the Standards in Public Office Commission has reasonable evidence that an offence has been committed under the Act, it reports on the matter to the Director of Public Prosecutions. The director has, quite rightly, stringent requirements for evidence. One needs evidence that will stand the test for a criminal conviction in a court of law.

The report points to some of the offences under the Act. They are failure to register as a third party, failure to return a certificate of monetary donations and a bank statement, and failure to take appropriate steps if a prohibited donation is received. The report outlines what these donations are. The Standards in Public Office Commission continues to make routine inquiries with political parties, accounting units in political parties and with third parties where it may have the sense that prohibited donations have been received. I do not want to give the impression that the sole focus of any inquiries is Libertas alone.

Chairman

Good point.

Senator John Hanafin

In light of the fact that the electoral commission handed out information that was equal on both sides, it is entirely reasonable for us to assume, and the facts show, that the booklet was to assist the "No" campaign. If there was an attempt to get information into the public domain, the correct method of distributing it is through the electoral commission. Producing this booklet ignored the electoral commission and went straight to the "No" side.

To ease concern in the public about foreign donations to Libertas and the concern with the connections between the person leading Libertas, Rivada, the American military and possibly right-wing groups, from the requests made, are there indications that there were foreign donations? Is there a clear audit trail showing the donations and from where the money came?

Deputy Michael McGrath

What are the outstanding issues between the commission and Libertas? I refer to the booklet, the use of Rivada employees' time and the consideration of the loan agreement. Mr. Waddell has confirmed that the consideration of the donation of the booklet is an outstanding matter. How can Mr. Waddell confirm that Libertas has complied in full with the legislation? If this was a prohibited donation, Libertas is obliged to deal with it appropriately by returning it. How can he conclude that Libertas has complied?

Mr. David Waddell

What I said was that, as of now, the commission is satisfied that Libertas complies with the legislation. It does not have evidence that it has not done so. Libertas has answered the inquiries but the main area of compliance was the return of the bank statement and the certificate of monetary donations. The four areas are still under consideration by the commission, which has not concluded on it. I referred to when the commission will report on it.

Did Senator Hanafin intend to refer to the Referendum Commission rather than the electoral commission?

Senator John Hanafin

I want to clarify what I said. I was talking about right-wing think tanks, not the American Government. I am worried about British right-wing groups, who were delighted when the "No" campaign was successful, because there is unease that there might have been an involvement, financial or otherwise, with the "No" side.

Mr. David Waddell

I am limited in what I can say. The author of the readable version of the Lisbon treaty booklet claims it is a neutral text. I cannot say any more. I have read the Lisbon treaty but not that booklet.

Regarding foreign donations to Libertas, the commission has informed the third party and other third parties of the requirements of the legislation and the steps that need to be taken if prohibited donations are received. That is all I can say.

Chairman

Mr. Waddell is one of an exalted and select group if he did not read the treaty.

Mr. David Waddell

I did read the treaty.

Chairman

I am reassured because the obvious question, which would be fundamental in coming to a judgment, is what effect the material distributed during the campaign might have had on the outcome.

Mr. David Waddell

The Referendum Commission distributes its explanations and statements on the treaty and does not distribute other material. It is no longer required to provide "Yes" and "No" material. That would not be considered by the Referendum Commission.

Chairman

When one begins to squeeze democracy like toothpaste from a tube in a digestible version for the public, the public gets bored and does not wish to engage with it at that stage. It has lost its whole purpose. In the natural order, the political parties engage with one another on a daily basis and the public makes up its mind, having regard to what is told to it by each group. In this case, most of the political parties were on one side, which was a disadvantage in that kind of a debate but there was considerable influence from outside the jurisdiction. I would be worried about it in the event of another referendum on other issues. There could be a major influence from outside the jurisdiction, over which Mr. Waddell would have no control because it relates to broadcasting and other legislation enforced in another area.

Mr. David Waddell

The Standards in Public Office Commission recommendations in respect of transparency of expenditure and donations, and the requirement to report on those after a campaign, point to sources of expenditure and donations, whether these come from political groups or commercial interests inside or outside the State.

Chairman

Does Mr. Moore wish to contribute?

Mr. Aidan Moore

I will clarify why some parties would register for incurring election expenses and not register as a third party. There are two separate requirements in the Act. First, to register as a third party if a donation given for political purposes is accepted and, second, to notify the Standards in Public Office Commission if one intends to incur expenses at an election. Some organisations notify the Standards in Public Office Commission that they will incur expenses at an election but are not accepting donations for the purpose of incurring those expenses. They are incurring expenses from their resources. This is a point made in the report. In referendums and in election campaigns, perhaps the emphasis should be on organisations incurring expenses having to notify and account for incurring those expenses rather than registering if they get a donation. They should account for the expenses they incur and show how they finance these matters.

Chairman

Given that everyone is very generous these days, it is very unusual for a body to register for election expenses if it is not involved in raising money.

Mr. Aidan Moore

The money could be kept below the disclosure threshold. For example, some of the organisations registered for incurring expenses might be schools. One organisation was campaigning to save a particular school and it may have raised money from parents in the form of small donations, etc. It might not have accepted a donation in excess of €127.

Chairman

I am sure our political colleagues of all parties would have something to say about that if it was found that a particular campaign, group or body of agencies was influential in the determination of an election outcome, by-election or general election. It would rankle very much with public representatives who might feel they are victims of that.

In the final analysis we will take the points which have been made. I thank the witnesses for making the very interesting presentation. The members are au fait with its implications and we will await with great interest the annual report. If the members agree we will incorporate today’s submissions into our report. As there is a division in the Seanad, the Senators will have to go to that Chamber. We will lay our comments before the House in connection with the report presented by witnesses.

The joint committee went into private session at 3.30 p.m and adjourned at 3.40 p.m. until 2 p.m. on Tuesday, 5 May 2009.