Thursday, 29 November 2018
I thank the Cathaoirleach for selecting my Commencement matter and the Minister for appearing in the Seanad to take it.
I raise an issue of deep concern to many civil society groups involved in public advocacy campaigning and working within organisational structures to effect positive changes in public life. In this country we have an incredibly rich and proud tradition of civil society activism. Civil society led the way on issues of economic and social justice, allowing for Ireland's growth into a more progressive and modern state, as in the recent campaigns for marriage equality and the repeal of the eighth amendment. We owe a lot to civil society and its constituent organisations. The State needs to ensure it is positively supporting their work and role through its laws. It must not act as a barrier to the fair and reasonable advocacy in which the organisations engage.
The situation is that the State is unfairly, unnecessarily and without a reasonable basis interfering in the work of civil society organisations. As the Minister will be aware, the Electoral Act 1997 sets out stringent rules for donations to political parties, political candidates and third parties. It provides that where donations are received to be spent for "political purposes", all of the requirements for the making of a statutory declaration to the Standards in Public Office Commission kick in. That is as it should be, as the regulation of political spending is a strong and welcome feature of our democracy, one that has resulted in an extraordinarily high level of trust and confidence in the electoral system by international comparisons. In 2001 the definition of "political purposes" was extended beyond relating solely to elections. It was redefined to include "to present, directly or indirectly, the policies or a particular policy". This definition is far broader than one that relates just to elections and could feasibly relate to the work of any civil society organisation in advocating for any policy change. Potentially, we are talking about the work of Tidy Towns committees, community organisations and residents' associations, bodies that could never have been intended to be subject to this high standard of compliance. The practical effect of the change is that civil society organisations engaging in normal public advocacy work have become subject to a wide range of unnecessary and burdensome donation prohibitions and statutory declarations. They are entirely justifiable in an electoral context, but I believe they were a completely unintended consequence of the broadening of the definition of "political purposes" for civil society organisations.
We have a real problem, which is why I am raising the issue with the Minister. We need to rethink the definition of "political purposes" in section 22 of the Act and assess whether it is fit for purpose. It was reported recently in The Sunday Business Post that the advocacy group Equate Ireland had been forced to close in the face of this wide definition being weaponised by a lobbyist on the other side of a policy issue. Complaints to the Standards in Public Office Commission were used to interfere in the valid and fair advocacy work of the organisation. The unclear nature of the definition became the focus point of a High Court case involving Amnesty International. The ruling was against the Standards in Public Office Commission.While this definition remains too vague, unclear and uncertain, the State will continue to be open to legal action. In fairness to the former Minister, Mr. Dempsey, who introduced this change, I do not think it was intentional. It has, nonetheless, caused major problems. The law has been specifically criticised by the European Union Agency for Fundamental Rights for threatening the basic democratic right to freedom of association. On the international stage, Ireland is one of the strongest defenders of strong civil society spaces, playing a leading role in developing the EU guidelines on human rights defenders and sponsoring the Human Rights Council's resolution on civil society space. It is simply hypocritical for Ireland to play this role internationally when our domestic laws are so problematic.
A number of groups, including Amnesty International, the Irish Council for Civil Liberties, ICCL, and others, have come together as the Coalition for Civil Society Freedom to advocate specifically for this change. It has produced an excellent report, entitled Keeping the People's Voice in Power. Has the Minister read the report? If not, will he commit to reading it and then meeting those groups as soon as possible? I believe this was an unintended mistake caused by poorly phrased legislative drafting. It is a bad law that is hampering the work of some excellent organisations in this country. We cannot stand over it any longer. I urge the Minister to consider changing this as a priority and I look forward to his response.
I thank Senator Ruane for raising this issue. At the outset, I congratulate her on her recent award. It was well achieved and well deserved. I thank the Senator for giving me the opportunity to address Seanad Éireann on this important matter. The Electoral Act 1997, as amended, provides the statutory framework for dealing with political donations and sets out the regulatory regime covering a wide range of issues such as the funding of political parties but also the reimbursement of election expenses, the establishment of election expenditure limits, the disclosure of election expenditure, the setting of limits on permissible donations, the prohibition of certain donations, the disclosure of donations, and the registration of third parties who accept donations given for political purposes which exceed the limit of €100.
The Act also provides for the independent supervision of this regime by the Standards in Public Office Commission, SIPO. It has published a number of guidelines to inform election candidates, Members of the Houses of the Oireachtas, Members of the European Parliament, political parties, corporate donors and third parties of their obligations under the Act. My Department is aware of the issues raised by a number of civil society groups, having particular regard to this definition of "political purposes” as provided for in section 22(2)(aa) of the Act. My Department also notes their views that it may bring a wide range of non-government organisations within the scope of the Act. As Senator Ruane has pointed out, that may in turn affect the means by which they legitimately raise funds to run their normal day-to-day operations. I am also aware that SIPO has raised this issue in its annual reports over the years and, in its most recent annual report, it has recommended that an “electoral commission should be established, and a comprehensive review of the Electoral Acts should take place, preferably in the context of the creation of an electoral commission”.
It is envisaged that the establishment of such an electoral commission would bring significant change to the oversight of the electoral system in the State when it is established. Plans to establish an electoral commission are being advanced in my Department. That is being done in accordance with the commitment in A Programme for a Partnership Government and having regard to the recommendations earlier this summer, in the report of the interdepartmental group on the security of Ireland's electoral process and disinformation, that this work should be expedited and that the issue of spending limits and transparency requirements around referendums and electoral events should be examined further.
In this context, I hope to announce shortly, with the Minister of State, Deputy Phelan, a public consultation on establishing an electoral commission. Submissions received over the course of the proposed consultative process will be carefully analysed and will inform the development of future proposals to Government on this matter. There will likely be a wide range of views, from all perspectives, on the appropriateness or otherwise of the definition of "political purposes" in the Electoral Acts, a definition that has been in place since 1997. My Department will be pleased to consider any submissions or views that interested parties may wish to make on the important issue raised by Senator Ruane.
I thank the Minister. I acknowledge the role of the proposed electoral commission and how crucial that will be to advancing further where we are with elections and referenda. It was made very clear, however, during debates in this Chamber - I think it was with the Minister of State, Deputy Phelan - that an electoral commission could take a considerable amount of time to establish. In the time we would have to wait, we could risk other organisations ending up in the same position as Equate Ireland and having to close their doors. A relatively small amendment is required and it could be made instead of having to wait for the establishment of the electoral commission. Will the Minister consider introducing such an amendment? If not, there is support in this Chamber for considering legislative options on an Opposition cross-party basis. I would much prefer, however, if the Minister's Department could look at accelerating an amendment. It could do that much faster than we can. The organisations are worried about having to wait for an electoral commission, which could take many years to happen.
At the moment the Department is expediting a number of things we need to do in respect of our political progress. It is important to recognise that the public has a high degree of trust and faith in the system and in the integrity of the system. As we make important changes that we need to make, such as establishing an electoral commission and modernising our electoral register, which are two projects happening in tandem at the moment, we have to make sure we are protecting the integrity of that system. A number of things are being expedited and we are doing a regulatory impact assessment, RIA, on the establishment of an electoral commission. That will be launched in a couple of weeks and will run through into the first or second quarter of 2019. It will be a public consultation on four different proposals for an electoral commission and what powers it might have.
We are going to have a wide debate during that public consultation on things such as definitions, what should be permitted as expenditure, who should be allowed from outside of our country to donate or spend money, inside or outside of election times, and how these things are defined. I, and most people who have been consulted on this, believe that we should not go for a big-bang approach to establishing an electoral commission. We should instead phase it in over time. Going through that public consultation and debate might allow us then to establish a list of our priorities for reform.
As we progress reform to the stage of establishing an electoral commission, perhaps over a period of two years after the end of the public consultation in the first or second quarter of next year, what are the priorities if we are not going to wait until the electoral commission has been established and everything is done? If we are going to do it in a phased approach, what are our priorities? We will have space to consider that in the short period in front of us. It is not the intention of the Act to have any kind of chilling effect on civil society engagement. Senator Ruane noted two recent examples where civil society has been the driving force and has brought the politicians behind it and on board to a successful result. I used to work in the area of international arms control where absolutely nothing would have happened with the ban on landmines were it not for civil society on the international stage. Many Irish organisations played a fundamental role in that.
I know directly from that experience, as well as the more recent experiences we have had here in Ireland, the importance of civil society. We do not want to have a chilling effect. We want transparency on what is happening and an understanding of what is allowed and what is not allowed. I know we need to look at the regulation of spending or a definition of "political purposes", and we will. I just do not want to look at it in isolation. I also do not want any delay. I hope that over the next three to four months we will, through that public consultation and then as the Oireachtas, establish a roadmap for priorities to get to a point where we then have a statutory, fully fledged electoral commission. I hope we can come to an understanding and a timeline for that during the process.