Standards in Public Office Commission decision on Amnesty International Ireland’s access to foreign funding

AI Ireland has been informed by the Standards in Public Office Commission (SIPOC), an Irish government’s regulatory body, that the organisation has broken the law by accepting funding from a foreign source for its human rights work. The funding in question is a €137,000 grant we sought and received from the Open Society Foundations (OSF) for our 2016/17 campaign to support AI Ireland’s ‘My Body My Rights Ireland’ campaign. This grant accounts for nearly 2.5 per cent of our total annual income.

SIPOC has argued that Amnesty International Ireland has violated the Electoral Act 1997 by accepting such foreign funding. When amended in 2001, this law was intended to apply only to donations to groups involved in campaigns to influence the outcome of an election or referendum. However, this amendment was drafted too broadly and contains vague terms that allow for its arbitrary application. We believe this an unfair law, unfairly applied.

SIPOC has instructed Amnesty International to return the entire grant to OSF. Failure to comply with this instruction could result in this being referred to the police for investigation, and our prosecution. The Electoral Act contemplates the possibility of a criminal charge that could carry a penalty of up to three years imprisonment.

We will not be returning this funding. As a civil society organisation, we have the right to seek, receive and utilise funding from domestic, foreign and international sources, and we are certain that we have not used such funds in any form that could reasonably be considered to violate Irish law. Rather, we have used these funds to defend and promote the human rights of women and girls set out in international treaties that Ireland has ratified, under which it is legally bound.

Furthermore, it is increasingly clear that the vague and overly broad provisions of the Electoral Act are seriously impacting on a growing number of other organisations, and could have a severe chilling effect on civil society in general. There are many other organisations that are also impacted by this legislation in Ireland who cannot speak out, because of the risks they are facing.

Amnesty International has decided to campaign for the amendment of this law for the benefit not only of ourselves, but of civil society organisations in Ireland more generally. Long before SIPOC decided to revisit and reverse its 2016 decision and find us in breach of this law, we had already been engaging with the Government on this issue because of the threat it poses for a whole range of civil society organisations in Ireland. The fact that we now face being criminalised for our human rights work is evidence of how grave that threat is, and it is one that we will not accept.

We have seen with concern how similar laws and policies restricting civil society’s access to funding are being adopted globally. One of AI’s global priorities is to challenge the shrinking space for civil society, including restrictions on access to funding, and ensure a safe and enabling environment for human rights defenders and civil society. In line with our work to defend the rights to freedom of association and expression, and as part of our global Brave campaign, we will continue to challenge this law and ensure it is brought in line with international human rights law and standards.

The Standards in Public Office Commission (SIPOC) is an independent state body that regulates compliance with a number of pieces of legislation. One piece of legislation is the Electoral Act 1997, which mainly governs how election campaigns by political parties or election candidates are run and financed.

In 2001, this Act was amended to place restrictions and reporting obligations on individuals or groups beyond political parties or election candidates, called “third parties”. A “third party” means any individual or group who accepts donation for “political purposes” exceeding the value of €100. The definition of “political purposes” includes “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”.

While we understand that the purpose of this provision was to guard against improper interference in elections or referenda, the definition of “political purposes” in the amended Act is vague and overly broad. Since 2001, the potential of its being interpreted and applied in a broad fashion to bring a wide range of organisations within the scope ‘third party’ status has been ever present, even if their work is not directed at influencing the outcome of a particular election or referendum.

According to this law, organisations deemed a “third party” cannot accept a donation from a foreign source, including from philanthropic foundations based outside Ireland upon which many Irish civil society groups are dependent. A ‘third party’ also may not accept a donation from within Ireland of over €2,500 in a year from one single source. Organisations considered a ‘third party’ are also required to undertake burdensome accounting and reporting procedures, and a political donations bank account must be set up for all donations spent on the ‘political purposes’ in question. Failure to comply with these provisions risks criminal prosecution.

Irish law goes further than prohibiting foreign donations for such work: it sets a limit on the amount of funding a civil society group can receive from any one individual for campaigning, and has burdensome reporting requirements for the funding of civil society groups that they are actually allowed to receive. The restrictions imposed on the right to association by Irish law are similar to other draconian laws seen around Europe and elsewhere – including in Russia, Hungary, Israel and Egypt – designed to shackle, stigmatise, and ultimately silence critical NGOs.

Despite Ireland’s commendable work internationally, including within the United Nations, to affirm the important role of civil society and to safeguard the key fundamental freedoms which facilitate civil society’s work, including their ability to access funding from domestic, foreign and international sources, the Electoral Act 1997 and SIPOC’s application of it, run counter to Ireland’s obligations under international law. In addition, this could seriously undermine Ireland’s position on the role, value and rights of civil society at the international stage, and its ability to continue to effectively advocate for these rights at international forums.

We believe this is the result of a law that, since 2001, unduly restricts the rights of civil society from accessing funding, including a ban on accepting funding from overseas and severe restrictions on domestic sources, for no reason other than limiting their ability to influence government policy.

SIPOC has itself repeatedly highlighted the law’s vagueness and broadness, and noted that it extends to work and organisations that surely cannot have been the legislature’s intention when this law was drafted in 2001. Yet, despite these concerns, SIPOC is now applying this law literally and broadly to our human rights work. This is being experienced by other civil society organisations in Ireland, and having a chilling effect on their philanthropic funders.

Some have speculated that this decision would not have been taken by SIPOC on our wider work – that our campaign to bring the abortion law in Ireland into compliance with international human rights law and standards somehow ‘controversial’ or ‘too political’ to be a real human rights issue. But as we have extensively reported, the human rights violations caused by Ireland’s abortion laws to women and girls are no less important for us to challenge than any other human rights violations. We are clear that our campaign should not be considered subject to restrictions and regulation under the Electoral Act as this was part of our common work to promote and defend human rights, not to interfere with an election or a referendum.

But let’s be clear, this attack on Amnesty International is far more than about our campaign to amend Ireland’s abortion laws. This is a wider, more troubling issue of restricting and criminalising the work of civil society. This latest development shows the real threat that the Electoral Act poses to civil society organisations in Ireland, a threat that it is now materialising. It is time for the Government to finally amend this vague and overly broad legislation that unjustifiably restricts civil society’s work and contravenes international human rights law.

There is nothing at all wrong with civil society organisations’ receiving funding from foreign sources to carry out their work to promote and defend human rights. It is actually a human right protected under international law, including the International Covenant on Civil and Political Rights and the European Convention on Human Rights to both of which Ireland is a party.

Many NGOs doing important work on human rights and social justice in Ireland rely on funding from sources based outside Ireland. If it were not for external funders, many NGOs in Ireland and across the world would not be able to carry out their key work and campaign for human rights.

In fact, the Irish government itself, through Irish Aid’s ‘Civil Society Fund’, provides important funds for civil society organisations in other countries campaigning on many issues, including human rights and social justice. Also, Ireland has benefited hugely from the funding provided to its third level education institutions, the state’s Child and Family Agency, Tusla, as well as to local and community groups, national charities and NGOs, by international foundations such as the Atlantic Philanthropies.

It is rather the blanket ban on foreign funding under the Electoral Act that is wrong.

International human rights law is clear that there should be no distinction between the sources of funding or resources – whether domestic, foreign or international – as civil society organisations’ ability to access resources from all of these sources is equally protected. States are entitled to regulate or put limits on civil society groups’ funding – foreign or domestic – but only where this is necessary and proportionate to a legitimate aim. A blanket ban on foreign funding and a blanket cap on domestic funding run contrary to human rights norms.

No. On the contrary, we strive for maximum transparency in what we work on, how we work, how it is funded, and how our funding is spent. The vast majority of our funding comes from our amazing members and supporters, and we report publicly every year on all of our sources of funding and how we spend it. We do this at our annual conference, and by publishing all of this information on our website. In fact, we publicly reported the grant from OSF long before we received inquiries from SIPOC on this subject. We are also fully compliant with the Regulation of Lobbying Act 2015, and all our lobbying activities are logged comprehensively and promptly on the Register of Lobbying.

However, reporting requirements imposed by the State must not inhibit the autonomy of associations and should not impose discriminatory restrictions on potential sources of funding. While we recognise that governments have a legitimate reason to examine any associations’ records to ensure transparency and accountability by independent bodies, States must ensure that this procedure is not arbitrary and that is respectful of the rights to non-discrimination and privacy. Otherwise, it puts the independence of associations, and the reputation and welfare of their members, at risk.

We believe that the ‘third party’ provision in the Electoral Act has remained on the statute books because it has not been a political priority to resolve, not because the Government actually want it there. However, the lack of political will to amend such provisions has enabled the targeting of civil society organisations for their legitimate work, which also conflicts starkly with the position and values Ireland promotes in the UN and internationally on the important role of civil society.

In fact, the Irish government constantly relies upon civil society organisations to support in the development of laws and policies on a wide range of issues, often seeking input from civil society for example via public consultations. The government has also put in place in-depth processes such as the Constitutional Convention and the Citizens’ Assembly to directly involve individuals and civil society organisations in developing possible policy and legislative solutions to complex issues. These initiatives are good examples of how the authorities have sought and received the invaluable input from civil society in general. The Constitutional Convention, for example, played an important role in bringing about the referendum on marriage equality for same sex couples, and the Citizens’ Assembly has done really important work in developing recommendations for the Oireachtas on the question of the Eighth Amendment and Ireland’s abortion laws.

Moreover, Ireland has played a leading role in supporting human rights defenders and civil society at the international level. For example, Ireland has led in the drafting and negotiation of resolutions on civil society space at the UN Human Rights Council. The 2016 resolution on civil society space states that “the ability to seek, secure and use resources is essential to the existence and sustainable operation of civil society actors, and that restrictions on funding to civil society actors may constitute a violation of the right to freedom of association”. The resolution calls on states to “ensure that domestic provisions on funding to civil society actors are in compliance with their international human rights obligations and commitments … and underlines the importance of the ability to solicit, receive and utilise resources for their work”. Ironically, this is precisely what the Electoral Act is doing.

Ireland, and in particular the Department of Foreign Affairs and Trade, has played a commendable leading role globally in advancing and protecting the role of civil society. This is particularly welcome at a time when the civil society space is shrinking globally. Across the world, laws and policies restricting the right to freedom of association, peaceful assembly and expression have multiplied, and access to funding for civil society organisations is being diminished. It is therefore a very great concern that Irish law has not been amended accordingly to ensure that civil society in Ireland can be effectively protected and their rights guaranteed.

We really do not know. All we know is based on a letter we received from SIPOC on 20 November (dated 17 November), that they concluded that the OSF grant we received for our 2016/17 domestic campaign to reform Ireland’s abortion law was in breach of domestic law and was considered as a “prohibited donation”. SIPOC further instructed us to return that grant to OSF.

This is a complete reversal from SIPOC’s position from last year, when we received a letter about this same grant in August 2016. We then replied to SIPOC confirming the amount of money we received and that its purpose was to part-fund our domestic campaign for reforming Ireland’s abortion law to ensure they respect human rights, including by repealing the Eighth Amendment. We also supplied SIPOC with the full set of objectives for this campaign, as requested. In October 2016, SIPOC declared itself satisfied with our statement and confirmed that this funding did not require us to register as a ‘third party’. However, over a year later, it has changed its mind and it is now taking a complete different approach based on the same facts, deciding that this donation is in fact prohibited by law and has to be returned to the funder.

Why SIPOC reversed its position a year later, based on no materially new information, is unclear to us. We know that certain domestic and international groups that deny the rights of women and girls, and some elements of the Irish media, have been painting our campaign to reform Ireland’s abortion law as “controversial” (despite polling in Ireland and the Citizens’ Assembly outcome showing it is not) or “too political”, despite the fact that Amnesty International is completely independent of any political ideology, economic interest or religion, and have portrayed foreign funding as somehow sinister.

We also know that the nature and volume of complaints SIPOC is receiving from those opposed to specific issues, including our work on reforming the abortion law, has escalated. Ironically, thousands of complaints to SIPOC in recent months were directed by a petition on a foreign website which campaigns for religious freedom but also against issues such as sexual and reproductive health and rights, marriage equality and others.

Since SIPOC’s approach to investigating and enforcing the ‘third party’ provision of the Electoral Act has been primarily to respond to the complaints it gets, in practice this means that its powers can inevitably be used by certain groups or individuals that wish to target organisations working on particular issues to which they object.

This leads us to believe that this law, and SIPOC’s complaint mechanism and enforcement powers, are being instrumentalised by individuals and groups to restrict the work of those with whom they disagree.

SIPOC has itself highlighted on repeated occasions the provision’s vagueness and broadness, and noted that it extends to work and organisations that cannot have been the legislature’s intention. Yet, despite these concerns, it has applied this law to our human rights work. Such a change in the approach taken by SIPOC is also being experienced by other civil society organisations who fear speaking publicly about this for fear of further consequences. One organisation was even told that its making a submission to a government consultation process was considered as a ‘third party’ activity, when this would not even be considered ‘lobbying’ under the Regulation of Lobbying Act 2015 that SIPOC also governs.

The arbitrary way in which SIPOC is implementing the Electoral Act is creating an even more confusing and fraught situation for civil society groups.

Ever since its 2003 report on the operation of the Electoral Act, SIPOC has stated that the ‘third party’ provision, as it may be applied to civil society organisations, is too widely drafted. On its website, SIPOC currently states that it “has concerns about the effectiveness and scope of the provisions of the legislation relating to third parties”, because the definition of political purposes is so wide that it may, unintentionally, cover, on an ongoing basis, a wide range and number of civil society groups and representative bodies. Giving several examples, it then says:

“The list is far from exhaustive. It is highly likely that, in conducting their day to day business, any of the above could be involved in activity which would fall within the definition of political purposes in that they would be attempting to promote or procure a particular outcome in relation to a policy or policies of the Government or any public authority, including a local authority. [….]

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 campaigning at an election or referendum in which case they should, and would, be covered.”

It further states that it “would be useful to examine the definition of political purposes to determine the extent of its application beyond elections and referenda”; and refers to “campaigns of a highly political nature where the legislation should apply”, but notes the difficulty in attempting to legislate for such.

We are concerned that legislating to distinguish civil society groups’ “ordinary” work campaigning for human rights from their work deemed “highly political” for the purpose of prohibiting or restricting their funding, would lead to an even more subjective and arbitrary application of the law.

We do not accept that the broad and expansive interpretation applied by SIPOC in our case, based on a law they themselves consider to be overly broad, is fair. SIPOC, as a State agency, has an obligation to apply this and any other law in line with Ireland’s human rights obligations. Even if successive governments have failed to amend this law in the past, SIPOC could decide to confine its attention to donations to “third parties” directly involved in campaigns to influence the outcome of elections or referendum, as appears to have been the original intention of this law.

However, the best way to resolve the unfairness and arbitrariness that this law poses, is for the Government to amend this legislation and bring it in line with Ireland’s obligations under international human rights law.

Amnesty International Ireland has been working with partner NGOs in recent months to jointly seek the amendment of the Electoral Act. In July, together with the Irish Council for Civil Liberties and Transparency International Ireland, we sent a joint submission to the Minister for Housing, Planning and Local Government, where we detailed our concerns at the detrimental impact this law is having on civil society, and we proposed amendment wording that would help in resolving this matter. Despite AI Ireland being now targeted under this law, we will continue that work.

We expect that the Government will understand the seriousness that such restrictions pose to the work of civil society and will make this a priority to ensure the ability of civil society organisations to continue with their important work.

Together with the Irish Council for Civil Liberties and Transparency International Ireland, we also wrote to the Chair of SIPOC in August seeking a meeting to discuss how civil society organisations might be able to comply with this legislation without incurring unnecessary or unreasonable demands or procedures. However, our request was declined, as SIPOC said it considers this a matter for the Minister for Housing, Planning and Local Government. SIPOC also stated that it considers that it applies the Act in a fair and objective way.

While we accept that it may be SIPOC’s intention to apply the Act in such a manner, their actions have proven differently. Therefore, in light of the Government’s failure to amend the provisions in the Electoral Act that restricts civil society’s ability to access funds, Amnesty International has decided to challenge this law.

Amnesty International Ireland will continue to apply our usual policy of registering any campaigning directed at influencing the outcome of a referendum as ‘third party’. This was the approach adopted in our 2015 campaign for a ‘yes’ vote in the referendum to provide marriage equality for same sex couples, and we are fully able and willing to do so again.

If a constitutional referendum on the Eighth Amendment is called, so long as the referendum wording is in accordance to human rights law, we will register as a ‘third party’ as we have always considered that our work directed at influencing the outcome of a referendum could reasonably be subject to regulation.

It seems clear that SIPOC launched its investigation into this grant on foot of complaints and pressure from organisations and individuals who are ideologically opposed to our work on abortion, including domestic and international groups. As such, SIPOC and the Electoral Act are being used to harass, attack and undermine civil society organisations for simply doing their human rights work.

But the pressure SIPOC is facing is compounded by the lack of political will to amend a law that poses a very grave threat to a wide range of civil society organisations. SIPOC’s enforcement of this law is not only being targeted at organisations promoting the reform of abortion laws, but also NGOs working on other issues. For instance, Education Equality, a voluntary group made up of concerned parents, has been forced to return a donation it received for its campaign on equal access to education following a threat of possible criminal investigation and prosecution. Both the order to return the donation and the threat of criminal sanction have had a crippling impact on the group and its work. Numerous other organisations have also been impacted. This form of harassment of civil society organisations must stop, and the government must pursue the amendment of this law as a priority.

No. The work AI Ireland is doing to promote the reform of the abortion law is completely in line with AI’s objectives to ensure that Irish law effectively respects and protects women’s and girls’ human rights. The work we are doing with the grant in question is in fact the continuation of the global campaign, My Body, My Rights, carried out during 2014-2015, which advocated for an end to the control and criminalisation of sexuality and reproduction worldwide.

Also Amnesty International’s current global campaign, Brave, which focuses on the situation of human rights defenders and civil society across the world, has identified as a major concern the increasing laws and policies that are restricting the ability of organisations to carry out their crucial work, including by imposing undue restrictions on their access to funding. Challenging the Electoral Act in Ireland is part of this work and we will continue to advocate for its reform to ensure that civil society and human rights defenders in Ireland can work in a safe and enabling environment.

Yes, there are many things you could do to speak up for human rights defenders and civil society in Ireland. For example, you could raise your concern with your local TD and call them to amend the Electoral Act. Please see our website where there is a Frequently Asked Questions page on this, which explains which part of the law we are talking about. You could also call the Department of Housing, Planning and Local Government to register your concern.

You can also join Amnesty International or donate to support our Brave campaign to stand up for human rights defenders and civil society.