EU report expresses concerns regarding overly broad application of Ireland’s Electoral Act.
Fundamental Rights Agency calls for broad fundraising base to be available to civil society organisations.
A new report published today by the EU Fundamental Rights Agency has underlined the importance of protecting the work of civil society organisations (CSOs). The report found that it has become more difficult for civil society groups, including human rights organisations, to operate within the European Union as a result of both legal and practical restrictions. The ability of civil society organisations to access funding is an integral part of the right to freedom of association. In relation to Ireland, the report notes concerns regarding the vague wording and overly broad application of the Electoral Act, which imposes restrictions and reporting obligations on ‘third parties’ who accept donations over €100 for ‘political purposes’. This provision was introduced to regulate political campaign funding. However, ‘political purposes’ is very broadly defined and can include the general advocacy work of a wide range of human rights and other organisations.
The report notes that the Standards in Public Office Commission (SIPO), which is responsible for implementing the law, appears to have applied the law more expansively over the last year. It says investigations are often triggered by complaints to SIPO, so enforcement can inadvertently be selectively targeted. The report warns that a blanket ban on foreign funding could have a particularly serious impact in Ireland, where most independent funding comes from trusts and foundations based outside of Ireland.
“Today’s report from the EU’s fundamental rights agency further underlines our concerns regarding the regulation of civil society organisations across the Europe. In many countries, including Ireland, the legitimate work of civil society organisations is being impeded by legal and political restrictions many of which contravene the right to freedom of association. International human rights law is clear that there should be no distinction between the sources of funding, whether domestic or international. States may regulate or limit funding only where this is necessary, and proportionate to a legitimate aim. A blanket ban on foreign funding can never be human rights compliant, said Colm O’Gorman, Executive Director of Amnesty International Ireland.
Amnesty International Ireland has been concerned about this Act’s ‘third party’ provision amendment since its introduction in 2001, and its growing impact on Irish civil society groups. Together with the Irish Council for Civil Liberties and Transparency International Ireland, it has been seeking its amendment. In November, SIPO instructed Amnesty International to return a grant received from the Open Society Foundations as it deemed it a ‘prohibited donation’.
“Amnesty International believes that SIPO’s decision is unjust. It illustrates that the Electoral Act’s third party provision is a serious threat to civil society rights and freedoms. We do not believe that we are above the law but we cannot simply comply with SIPO’s instruction without first challenging it and the law it is based on. As a human rights organisation, we have a responsibility to challenge a law we believe is unjust, unreasonable and breaches human rights.
“Civil society organisations play a crucial role in democratic societies. They should be free to go about their legitimate work without unnecessary interference from the state. Ireland has, perhaps unintentionally, found itself among a group of countries who are cracking down on civil society groups. Indeed, the Electoral Act is at odds with Ireland’s foreign policy objectives. Ireland funds civil society organisations’ advocacy in other countries, and has been actively defending civil society against repressive legislation in Russia, Hungary and Egypt. The Irish government must ensure that these same principles are reflected in its domestic law and regulation of civil society organisations,” said Colm O’Gorman.
The Fundamental Rights Agency report also found that a number of civil society organisations and activists across Europe have experienced physical and verbal attacks, harassment and intimidation. These attacks take place both online and offline. Groups have also been subjected to negative public discourse, smear campaigns and unauthorised surveillance and data collection.
Notes for editors:
In December, Amnesty International Ireland revealed that it had been contacted by SIPO in relation to a €137,000 grant it received from the Open Society Foundations, a US-based funder of human rights work around the world. The grant part-funded the organisation’s campaign for a human rights compliant abortion law in Ireland. SIPO instructed the organisation to return the grant as it was a ‘prohibited donation’. This is despite SIPO previously (in October 2016) accepting that the work covered by this grant, which is not directed at a particular referendum outcome, is not a ‘political purpose’ and therefore, does not fall within the remit of the Electoral Act.
Amnesty International, the Irish Council for Civil Liberties and Transparency International Ireland have previously urged the government to amend the Electoral Act and in July 2017 submitted proposals for straightforward amendments.
The section in the FRA report relating to the regulation of civil society organisations in Ireland, from page 22, is included here:
Legislation should take a broad view on the scope of activities CSOs can engage in. Associations should be free to determine their activities and make decisions without state interference. As such, they should be free to enjoy the rights to express opinion, disseminate information, engage with the public and advocate before governments and international bodies. They should also be free to engage in any lawful economic, business or commercial activities to support their not-for-profit activities without any special authorisation being required, but subject to any licensing or regulatory requirements generally applicable to the activities concerned. In its Guidelines on civil participation in political decision-making, the Council of Europe has noted that civil participation in political decision-making is distinct from political activities in terms of direct engagement with political parties and from lobbying in relation to business interests. CSOs have noted that while it is important that states adopt and adequately implement transparency laws, lobbying regulations could potentially be over applied to CSOs if the same rules apply for those advocating human rights issues and those involved in corporate lobbying, despite the differences in resources and interests between the two.
In Ireland, concerns were expressed over the vague wording and overly broad application of the Electoral Act 1997 as amended in 2001, which imposes restrictions and reporting obligations on ‘third parties’ who accept donations over € 100 for ‘political purposes’. This provision was introduced to regulate political campaign funding. However, ‘political purposes’ are defined as “to promote or oppose, directly or indirectly, the interests of a third party in connection with the conduct or management of any campaign conducted with a view to promoting or procuring a particular outcome in relation to a policy or policies or functions of the Government or any public authority”. This broad definition can potentially cover the activities of a wide range of CSOs, including human rights NGOs, and in the past year, it appears that the regulatory body has applied the law in a more expansive way. In addition, investigations are often triggered by complaints to the regulatory body, so enforcement can inadvertently be selectively targeted. The effect of applying this law to CSOs is that they are thereby prohibited from receiving any donations from foreign sources and from any individual exceeding € 2,500 in any year. The blanket ban on foreign funding can have a particularly serious impact in Ireland, where most independent funding of human rights work comes from trusts and foundations based outside of Ireland.