Expense ruling may mean prosecutions

YESTERDAY’s Supreme Court decision on election expenses could not only lead to legal challenges to the election of certain candidates, but also to prosecution of Dáil deputies for exceeding campaign spending limits.

The five-judge Supreme Court rejected an appeal by the State against a High Court finding on May 16 last - the day before the General Election - that parts of the 1997 Electoral Act are unconstitutional.

It was claimed the Act exempted a range of services provided free to outgoing TDs, senators and MEPS from the calculation of election expenses. The High Court ruled the provisions are unconstitutional because they create inequality between outgoing politicians and new candidates.

Services involved include secretarial work, office space, phone services, postage, stationary, printing and photocopying.

A challenge to the Act was taken by Fianna Fáil Dublin Mid-West candidate Des Kelly of Lucan, who was not an outgoing TD and who stood in the General Election.

Mr Kelly, 30, said he will not challenge the outcome of the election in his constituency but added somebody elsewhere could.

In its judgment, the Supreme Court said it was satisfied with the High Court finding that the provisions in question were invalid with regard to the Constitution.

The Supreme Court also turned down an application on behalf of the State for a declaration that, in the event of the appeal being disallowed, the court order should be prospective only - applying in the future - and should not affect expenditure by members of the Oireachtas in the recent general election.

The Chief Justice, Mr Justice Keane, said that application was made because of the possible exposure of the deputies and senators concerned to criminal prosecutions, even though they participated in the election on the basis of the provisions of an Act ostensibly in force at the time. They had also been advised at the time, by the Public Offices Commission in its guidelines, that they could proceed as they were.

“Whether, in such circumstances, any such prosecutions should be instituted and, if so, how they should be dealt with by the courts are not matters which this court feels it should anticipate,” he added.

Earlier, the Chief Justice said Mr Kelly was aggrieved by the fact that outgoing TDs, senators and MEPS did not have to include in their return of election expenses the property,

services and facilities paid for out of public funds to which they were entitled and which, Mr Kelly claimed, they made use of in their election campaigns.

The Chief Justice said the wording of the Act was plain and unambiguous.

It provided that the expenses mentioned, including the provision of office accommodation, secretarial facilities and phone and postal facilities to members of the Oireachtas and

European Parliament were not to be treated as “election expenses” for the purposes of the Act. No other construction of the provisions in question, in the view of the court, was reasonably open.

It may well be, as urged by State counsel, that the Oireachtas did not contemplate that expenditure of this nature would be availed of by incumbent members for the purposes of their election campaigns.

It may be that they were intended to be availed of only for the performance of their duties as legislators.

The fact remained that the Oireachtas in plain and unambiguous language said such expenditure was not to be treated as “election expenses”.

Costs of the hearing were awarded against the State in favour of Mr Kelly.