The Supreme Court has affirmed a High Court declaration that parts of the law excluding publicly funded facilities from election expense returns were unconstitutional. It also refused the Government’s request to make the declaration prospective only, leaving the provisions invalid from the outset.
The case was brought by Desmond Kelly, who stood in the general election earlier in 2002. He argued that candidates who were sitting TDs, senators or members of the European Parliament could use publicly funded property, services and facilities during campaigns without including their value in election expense returns. He said this gave them an unfair advantage over other candidates.
The Electoral Act 1997 limited candidates’ election spending and required returns to be submitted to the Public Offices Commission. Its Schedule excluded certain expenses from the definition of election expenses, including services and facilities paid from public funds. The High Court held that the exemptions for those facilities were unconstitutional because they treated candidates unequally without justification.
On appeal, the respondents argued that the provisions could be read in a constitutional way, on the basis that publicly funded facilities were intended for parliamentary duties and could not properly be used for campaigning. The Supreme Court rejected that interpretation. It said the wording was plain and unambiguous: the specified expenses were excluded from election expenses, and no other reasonable construction was available. The court said any expectation that the facilities would not be used in campaigns could not override what the legislation expressly said.
The court therefore affirmed the High Court’s declaration that paragraph 2(a), insofar as it exempted specified expenses relating to Oireachtas members and European Parliament representatives, and paragraph 2(c) of the Schedule were invalid having regard to the Constitution.
The respondents also asked the Supreme Court to rule that the declaration should apply only in the future and not affect spending at the 2002 general election. They raised concern that representatives might face criminal prosecutions after having acted under the law and Commission guidance then in force. The Supreme Court said it was uncertain whether it had jurisdiction to make such an order, since the High Court had not ruled on that issue. Even assuming it had jurisdiction, it found no basis to grant the request. The court said the provisions were invalid from the beginning and left any decisions about possible prosecutions to be addressed if they arose.