It all comes back to the legislation.
The lack of clarity in the Electoral Acts around funding, foreign donations and the definition of political purposes is the one area all interested parties agree on in the Amnesty International v Standards in Public Office Commission (Sipo) High Court case.
Yesterday the court quashed a ruling, made in November 2017, that Amnesty International should refund a €137,000 donation from the Open Society Foundations funded by international financier and philanthropist George Soros.
Sipo accepted that its decision the donation was for political purposes and must be returned was “procedurally flawed” and is making a €16,000 contribution to Amnesty’s legal costs.
The donation was made in 2015 and Amnesty said it was to fund the agency’s 2016 campaign to increase public support for repealing the Eighth Amendment on abortion.
Under the Electoral Acts (1997, amended in 2001) donations above €100 must be declared to Sipo, the State’s public ethics watchdog.
Donations from outside Ireland are banned unless from an Irish citizen.
Anti-abortion campaign groups repeatedly highlighted the donation as illegal and a foreign influence on the abortion referendum campaign.
Amnesty International Ireland said the funding was related to work that was targeted at the Government rather than the electorate.
The objectives included increasing support among politicians for the holding of a referendum. No referendum on the Eighth Amendment was planned or had been called when the donation was made, Amnesty said.
Subsequently, media reports on documents leaked from the Soros-funded foundation suggested that the funding was part of a strategy to force the repeal of the amendment.
Sipo, in November 2017, then wrote to Amnesty referring to obligations under the Electoral Act and said it had to refund the donation.
Amnesty claimed it and other non-governmental organisations were extremely concerned about the implications of the decision.
It feared the matter could be referred to the Garda, leading to a possible criminal prosecution, if it did not return the donation and it challenged the Sipo ruling in the High Court.
The settlement between the parties centres on that concept that it was “procedurally flawed”.
In December last year Sipo issued a statement in which it said it “sought and received written confirmation from the donor that the funding was for explicitly political purposes”.
But the Open Society Foundations refuted the allegation and said it “has provided no such confirmation to Sipo, and we have written to the regulator requesting that they correct any public statements to the contrary”.
Welcoming the resolution of its legal challenge, Amnesty International Ireland’s executive director Colm O’Gorman said the agency’s primary concern was with the law and the “vague wording” and “overly broad application of the Electoral Act”.
Sipo itself has pointed out that the wording is open to a range of interpretations and, in response to the case, renewed its repeated calls – the first in 2003 – for the 1997 and 2001 Electoral Acts to be amended.
Last week, its annual report called for amending legislation and for an electoral commission to be established, highlighting the advent of more referendums and the potential for foreign-financed and influenced digital campaigns.
John McGuirk, formerly of the Save the 8th campaign, said it was important to note that the findings were that Sipo’s decision making was “procedurally flawed”.
McGuirk, speaking in a personal capacity, said: “It’s tremendously unfortunate that the actual point of law doesn’t appear to have been clarified.”
Deirdre Garvey, chief executive of the national association of charities The Wheel, said that lack of clarity could "potentially muzzle legitimate and important voices in civil society, including community organisations, non-profits, charities and international NGOs when making representations to government".
The Department of Local Government in its response to the case said plans are “advanced” for the establishment of an electoral commission. Proposals are “anticipated” to be brought to Government in the autumn.
Once established the commission will have responsibility for the whole area of funding, foreign donations and campaigns.
O’Gorman has been sharply criticised for failing to return the funding and for taking the case. But by doing so he has brought the issue centre stage and the State, after 15 years of appeals by Sipo as ethics watchdog, is finally acting.