If you believe in the rule of law, Mr O’Gorman, then obey it

WE BELIEVE in the rule of law,’ Amnesty International Ireland’s Executive Director Colm O’Gorman told RTÉ’s Seán O’Rourke on Tuesday, in an at times hilarious, at times deadly serious debate, with David Quinn of the Iona Institute. The subject was foreign donations and how they are interpreted by the Standards in Public Office Commission (Sipo).

The debate was unintentionally hilarious as an impassioned O’Gorman launched a scathing attack on Sipo and what he considered Amnesty’s opponents, while poor Quinn, a man not well known to silence, could barely get a word in edgeways. He accused O’Gorman, on more than one occasion, of being unable to stop talking.

As the heavyweights of Ireland’s social divide heroically shouted over each other, even as skilled a host as O’Rourke struggled to keep order. If the overwrought nature of the debate was at times bizarrely funny, the topic was deadly serious. Amnesty Ireland was told by Sipo to return €137,000 it received last year from an international human rights organisation, the Open Societies Foundation, funded by the billionaire George Soros.

According to Amnesty, the grant was made to support a campaign to ensure abortion laws comply with human rights. And according to Sipo this is in breach of the State’s campaign finance laws as it contravenes part of the 2001 Electoral Act which forbids foreign donations for political purposes. Moreover, any organisation that accepts a donation of over €100 for political purposes must register as a third party and is subject to the Act’s donation limits and disclosures thresholds. Although Amnesty believes in the rule of law it refuses to return the money on the grounds it views Sipo’s decision as deeply flawed in principle and likely illegal, with O’Gorman insisting the organisation ‘will not comply with this instruction because it gravely violates civil society freedoms and human rights’.

Surely, if Amnesty believes in the law and thinks the law on foreign donations breaches human rights, then why had it not challenged the Electoral Act in the courts? It is not like it took Amnesty by surprise. The Act was enacted in 2007.

The Iona Institute, after some resistance, registered with Sipo as a third party in 2015, agreeing that it cannot accept a donation for political purposes of over €100.

Indeed, even last April the Abortion Rights Campaign handed back a €23,000 funding grant from the very same Open Societies Foundation on advice from Sipo. The group said it did not agree with Sipo, but ‘in good faith have returned the grant in order to comply with all regulatory frameworks’. This is a curious tale as Amnesty also tells us that Sipo wrote to it last year to say that its work on reforming Ireland’s abortion laws, basically repealing the Eighth Amendment, was not in breach of the Act and Amnesty was not required to register as a third party.

So it seems that a year later Sipo reversed its position with little apparent change to the facts. Amnesty suspects a diabolical plot and that its opponents ‘weaponised’ Sipo’s complaint mechanism. Amnesty ultimately believes Sipo’s enforcement powers are being manipulated by individuals and groups who disagree with it.

Sipo has rejected any suggestion that it is being used as a stooge and declared that its approach to policing donations has not changed.

Without mentioning the €137,000 donation, Sipo’s point is that last year it became aware of a number of organisations receiving donations from a foreign donor and was assured by the recipients that the donations were not for political purposes. However, in recent times Sipo has, according to itself, come into information that indicates these donations were for explicitly political purposes and this was confirmed by the donor. As it is the intent of the donor, not the recipient, that determines whether the donation is political or not, Sipo’s view is this funding is for a political purpose and must be returned.

What, one might ask, is all the fuss about? Well, quite a lot actually. Over the past two decades, and mainly as a result of revelations at various tribunals, the State has put in place significant measures to ensure its politics is above reproach. The Ethics in Public Office Act of 1995 and the Standards in Public Office Act of 2001 – which established Sipo and later freedom of information laws, the protection of whistleblowers, and the regulation of lobbyists (2015) have all gone some way to providing a robust framework for clean politics. There is a reason the electoral acts exist and a reason they prohibit foreign donations; they protect the domestic political processes, including elections and referendums from foreign interference. In the age of Trump, fake news and the allegations that Russia intervened in both the American presidential election and the Brexit vote this is important. Our country’s elections and referendums need to be free and fair. We shouldn’t be casual about this.

The 2015 same-sex marriage referendum was rife with allegations from both sides that the other was using foreign money to sway the electorate. As we end 2017, with the historic decision by the Oireachtas Committee on the Eighth Amendment to recommend repeal of that most controversial of amendments, it is hard to think of anything that is more political in Ireland than abortion.

In that context Amnesty’s hardline stance and refusal to return the money, despite being ordered to do so by an organ of the State’s armoury protecting it against political corruption, is worrying.

While Amnesty, the Iona Institute, and even Sipo itself have all voiced concern about the makeup of the electoral acts and the vagueness of some of the language therein in relation to what is a political purpose, Amnesty does not either make or interpret the law.

If Amnesty believes in the rule of law, then it should be compliant with Sipo, return the money and seek to change the law through either judicial review or getting the Oireachtas to change it.

We cannot have a state where organisations, no matter how well meaning, decide which laws they will obey and which they won’t.