I move: "That the Bill be now read a Second Time."
I thank the Minister of State, Deputy Noonan, for attending and for his engagement with me on this important Bill over recent weeks. I will begin with some thanks. First, I thank my colleagues in the Civil Engagement Group for facilitating this debate today and for sponsoring this Bill with me. This was legislation I introduced in the previous Seanad. I thank Sinn Féin, the Labour Party, Senator Boyhan and Senator Norris, as well as former Senators Colette Kelleher, John Dolan and Grace O'Sullivan of the Green Party for giving it their formal support when I brought it forward in May last year. This is an important show of cross-party solidarity and support on such an important issue. I also thank the Coalition for Civil Society Freedom, an umbrella group of more than 50 civil society organisations which came together two years ago to call for this reform. Without their important advocacy, this Bill would not be here.
It is somewhat ironic, therefore, that it is to protect their right to continue such advocacy work that we are here. My motivation for introducing this Bill is something of a personal one. Having worked in the area of advocacy for more than 20 years in regard to people who have been living on the fringes of society, whether due to poverty or issues of addiction, and working in community development for all of those years, I know advocacy has played a hugely important role in that we have empowered our communities to be able to advocate, not only for their own rights but the rights of their communities. When I think of such rights, I think of an addiction support group which has been a great advocate in the area of trying to end the use of supervised urinals for methadone users receiving their prescriptions, or those who have created campaign groups advocating against the situation that the GP contract does not allow for a local GP to take these people on. In the past, groups like this in communities have advocated in regard to living conditions. I remember working in Rialto, where a group at Dolphin House took a very successful case on human rights in regard to sewage coming up through the sinks there.
All of this is very important advocacy work and it must be supported at all costs. Unfortunately, we have moved into a time where the Standards in Public Office Commission, SIPO, has begun to raise concerns with groups that operate in the advocacy space, given there was an unintended consequence that now sees some of that advocacy work and human rights work as having what is termed "political purposes". While this was never the intention of the original legislation, it is getting caught up in that. We need to be able to disentangle all the very important work I have been involved in for years, as well as the work of everyone else in this Chamber in regard to disability groups, mental health groups and all the different groups. We all agree that work needs to be protected and cannot be caught up in the way it is currently caught in such a narrow view of political purposes. Obviously, this all falls outside electoral politics or referenda, and it needs to be to decoupled from that as well.
To turn to the Bill, groups of ordinary people who organise together with a common purpose to identify and address problems and injustices play a vital role in our political system. The community groups and civil society organisations they go on to form need to be able to fundraise to engage politicians in the public space. Without their lobbying, their campaigning and their agitating, we do not hear directly from the communities we are lucky enough to represent. It is because of this threat to the chance for a civil society organisation or community group to raise the funding it needs to advocate in the public interest that I am tabling this Bill.
The electoral Acts regulate us as politicians. They apply rigorous, onerous and high standards of donation declaration, certain prohibitions and accounting requirements that we are all familiar with, and we were all subject to them at the most recent election. The problem we are here to address is that, because of a flaw in the wording of these same electoral Acts, our laws do not fairly distinguish between how we regulate the campaigns of politicians and how we treat the normal everyday advocacy of campaign and community groups throughout Ireland.
A group of parents who came together to fundraise and advocate for secular education rights for their children are objectively different from a Dáil candidate seeking funding for an election campaign, yet under our laws no real distinction is made. This was a consequence of the extension of the Electoral Act 1997 with an amendment by the Oireachtas in 2001 to include donations received by third parties for what is called "political purposes". It has forced our electoral regulator, SIPO, to treat donations in excess of €100 received by community and civil society groups as if they were donations to a political campaign and to pursue any non-compliance accordingly. SIPO itself, the very body tasked with applying these laws, in its 2003 annual report highlighted this likely unintended issue, stating,"The Standards Commission doubts if it was the intention of the legislature that such bodies, in conducting their ordinary affairs, could find themselves covered by the legislation." It would, of course, be a different matter if any of them became involved in a campaign at an election or referendum, in which case they should and would be covered.
Despite this the Standards in Public Office Commission, SIPO, must apply the law as it is written, not as it may have been intended. This is the cause of the problem we are seeking to address. The issue with the application of the electoral Acts has arisen for many organisations working in very diverse areas. Some examples include Education Equality, a volunteer-run group of parents campaigning for education reform which had to dedicate extraordinary amounts of its limited resources to attempt to comply with SIPO’s requirements, all the time being threatened with legal action and criminal sanction.
Last year an ad hoc group of local residents in south Dublin who organised together to participate in the planning process and to fundraise locally through a Facebook page were referred to the Garda by SIPO and brought to the High Court. Of greatest concern in the case of the group Equate, actors on the opposing side of the baptism-barrier issue deliberately used our flawed laws to report the organisation to SIPO using the high compliance standards required and therefore diverting resources from the group's vital campaigning work. In each circumstance the financial requirements intended for aspiring Members of the Oireachtas or the European Parliament are applied to what are essentially volunteer-run groups. The work needed to comply with such required standards has damaged their capacity to advocate and has interfered with their right to freedom of association as a result.
This flaw in our electoral law is almost 20 years old and is being continuously identified and criticised in the intervening period, particularly by international human rights bodies and observers. This is particularly worrying due to the near-hypocritical nature of Ireland’s high profile support for free and vibrant civil society spaces internationally. Ireland played a leading role in the development of the European Union’s guidelines on human rights defenders and has even sponsored a resolution on civil society space at the United Nations Human Rights Council. It is difficult to square these international actions with glaring flaws in our domestic law, especially in light of Ireland’s recent election to the UN Security Council.
Our own Irish Human Rights and Equality Commission released a policy statement in 2019 raising concerns about the application of the electoral Acts in this area. This came in the wake of criticism in a report from the European Union Agency for Fundamental Rights in 2018 which raised its concerns with the selective nature of the law’s enforcement on foot of complaints such as in the Equate case. Furthermore, as recently as last month, the European Commission published its 2020 rule of law report for Ireland criticising our laws and calling for Ireland to apply EU law requirements and Council of Europe guidelines instead.
In the wake of the concern on the application of the law domestically and widespread international criticism, we are proposing legislation to amend section 22 of the Electoral Act 1997 to only apply to civil society advocacy during an election or referendum period, as was the likely intention of the Oireachtas in 2001. Concerns have been raised with me this week on the knock-on impact this may have on foreign groups which fundraise to influence public opinion here in Ireland. The inadequacies of our current law in this area were well aired in the recent campaign to repeal the eighth amendment. I appreciate that this is a sensitive issue on which we will have to move carefully. I therefore welcome the approval of the Cabinet this week for legislation creating an electoral commission and on the regulation of political advertising. This issue must be urgently addressed as part of the process. We cannot continue to rely on electoral legislation enacted before the Internet, or on private companies like Google and Facebook to ban online advertising to safeguard our democratic integrity. This must be a role for the State. We are committed to ensuring that we have full transparency and accountability in political funding, especially for funding coming into Ireland from abroad. It is our intention to ensure that this issue will be fully explored as this Bill moves through the Houses so that no unintended consequences arise again.
I am therefore disappointed that we cannot support the moving of the Bill to Committee Stage this evening but I thank the Minister for the memorandum from his Department on how he seeks to progress this issue, in that the Joint Committee on Housing, Local Government and Heritage could examine the Bill as part of pre-legislative scrutiny on the electoral commission Bill and that the commission, when created, could address it as part of a full comprehensive review of the electoral Acts.
I am concerned, however, about the timeline that has been set out. It could feasibly take longer than the lifetime of this Government and over five years for the necessary changes to the law to be made if we are to follow this timeframe. I would appreciate an indication of the urgency that is needed here. Can the Minister commit to a formal consultation process in his Department to happen in parallel with the organisations and groups affected by this flawed law and on the impact that it has on their work? Can he also commit to write to the Joint Committee on Housing, Local Government and Heritage, as Minister, requesting that the committee specifically look at this urgent issue, in particular within its pre-legislative hearings? It would at least provide an opportunity for concerns to be aired to show that his Department is listening to them. I look forward to the Minister’s response and I commend this Bill to the House.