Legal Loophole around election posters
A ‘legal loophole' in the Litter Pollution Act is being exploited by politicians who have erected banners, posters and other signage on public property to advertise their candidature ahead of the forthcoming general election.
The Act stipulates that a local authority cannot prosecute, ‘remove or otherwise remedy the defacement' of an advertisement that ‘relates to a general election or a bye-election, within the meaning, in each case, of the Electoral Act, 1992'. Although the exemption is generally understood to be valid from the day that an election is called, some local authorities have found that they cannot act to remove or prevent the posters from being erected. The only specific exemption from prosecution for election candidates in terms of dates refers to an ‘advertisement [that] has been in position for 7 days or longer after… the latest day upon which the poll was taken for the election'.
The loophole has prompted numerous complaints to Limerick County Council where first-time Dail candidate for Fianna Fail, Niall Collins, has displayed posters on telephone polls and road signs throughout the constituency of Limerick West for several weeks. A spokesperson for Limerick County Council's environment department told Village that they have been receiving complaints ‘every second day' from members of the public about Collins' posters. The spokesperson said that Limerick County Council had been advised by Limerick-based solicitors, Leahy and Partners about the legality of the posters ahead of an election being called, but that Leahy and Partners advised that candidates were exempt from planning for the signage and could not be prosecuted.
A spokesperson for the Department of the Environment told Village that the erection of such signage prior to an election being called ‘can be considered an offence' and that the onus is on the local authority to act accordingly. When the predicament facing Limerick County Council was explained, the spokesperson conceded that indeed the matter is a ‘grey area'.
Sitting TDs for Fianna Fail and Fine Gael respectively, John Cregan and Dan Neville, are expected to be re-elected to the Dail this year in Limerick West, leaving Collins and Fine Gael candidate, Senator Michael Finucane to battle it out for the third and final seat. Anecdotal evidence from the constituency suggests that, while the third remaining seat will be hotly contested between the two candidates, the signage is providing Collins an edge over Finucane. Collins is the only candidate to have erected such signage in the constituency.
The Green Party yesterday called for local Fianna Fáil candidate, Frank Fahey to remove signs promoting his latest website. The Green Party said that because ‘these signs were erected on the public road space… we believe they are in contravention of the Litter Pollution Act, in the absence of an election being called.'
“I understand that it is not permissible to put up posters on public lands advertising an election candidate in advance of an election”, said Green Party spokesperson, Cllr Niall O Brolchain. “I am disappointed that Frank Fahey has jumped the gun. Once an election is called he is quite entitled to put them back.”
Article 19 of the Litter Pollution Act 1997:
Subsection (4) A local authority may, on such terms and conditions as may be agreed upon by it and the occupier concerned, in the case of an article, advertisement or defacement in its functional area in relation to which there is a contravention of subsection (1)—
( a ) by its employees or agents, remove or obliterate all or a part of the article or advertisement or, as the case may be, remove or otherwise remedy the defacement, and
Subsection (7) A prosecution shall not be brought in a case in which an offence under this section is alleged to have been committed in relation to an advertisement if—
( a ) the advertisement is exempted development within the meaning of the Local Government (Planning and Development) Act, 1963, or is a notice displayed or erected in pursuance of a requirement by or under any enactment, or
( b ) the advertisement—
(i) advertises a public meeting, other than an auction, or
(ii) relates to a presidential election within the meaning of the Presidential Elections Act, 1993, a general election or a bye-election, within the meaning, in each case, of the Electoral Act, 1992, a local election within the meaning of the Local Government Act, 1994, a referendum, within the meaning of the Referendum Act, 1994, or an election of representatives to the Assembly of the European Communities,