Annual Report 2002

The "Des Kelly" case

The Electoral (Amendment) Act, 2001 (the 2001 Act), was passed by the Oireachtas in October 2001. A commentary on the main provisions of the 2001 Act, including those which deal with Oireachtas facilities, is contained in the Annual Report of the former Public Offices Commission for 2001. Amongst other things, the 2001 Act increased the spending limits of candidates at Dáil elections. More controversially, however, it provided that, in an election campaign, candidates could use facilities paid for out of public funds, without having to account for the cost of this use as part of their election spending.

During the course of the regional visits referred to earlier in this report, candidates and election agents regularly commented on the unfairness of a situation where the electoral prospects of incumbent candidates could be enhanced by virtue of the provisions in question of the 2001 Act. These comments were reflective of views expressed in the 2001 Annual Report of the former Public Offices Commission where it was said that one of the purposes of the Electoral Act, 1997 was to provide a level playing field for all candidates and parties at an election insofar as each candidate would be entitled to incur the same level of expenditure, including benefits in kind, in contesting the election. It was also said in that report that the effect of the amendment, relating to the use of facilities which were paid for out of public funds, was clearly to bestow significant advantage on candidates who were outgoing members of the Houses over other candidates who did not have access to such facilities.

On 8 April 2002, the High Court gave leave to Mr. Des Kelly, a Fianna Fáil candidate in the Dublin Mid West constituency, to apply, by way of Judicial Review, for certain reliefs, including a declaration that the provisions of the legislation, which provided that the cost of use of facilities which fell to be met out of public funds was not an election expense, were repugnant to the Constitution. He claimed that, as a non-incumbent of either the Dáil or the Seanad, he was gravely disadvantaged in that members of those Houses were entitled to use the facilities of the Houses for electoral purposes, without having to account for the cost of same as part of their spending limits. Mr. Kelly succeeded in his action. The judgment of the High Court was delivered on 16 May 2002, the eve of the Dáil general election.

The Standards Commission considered the implications of the judgment. It agreed, supported by legal advice, that the provisions of the legislation which were found to be repugnant to the Constitution were such from the date of their enactment and, accordingly, must be regarded as never having existed. An explanatory memorandum was issued to election agents outlining the position and pointing out that it would be necessary to include, in their Election Expenses Statements, details of any election expenses which were met out of public funds. The Election Expenses Statements were due to be furnished to the Standards Commission by 12 July 2002, i.e. 56 days after polling day.

The judgment of the High Court referred to above was appealed to the Supreme Court. The appellants were the Minister for the Environment, Ireland and the Attorney General. On 3 July 2002 the Electoral (Amendment) (No. 2) Act, 2002 (the 2002 (No. 2) Act) was passed. This extended to 31 October 2002, or 21 days after the date of the Supreme Court judgment, whichever was later, the date by which the Election Expenses Statements were to be furnished to the Standards Commission.

On 29 November 2002 the Supreme Court upheld the judgment of the High Court. Accordingly, having regard to the provisions of the 2002 (No. 2) Act, election agents and national agents of political parties had until 20 December 2002 to furnish the Election Expenses Statements to the Standards Commission.

The Standards Commission decided that it would not be appropriate to refer a file to the Director of Public Prosecutions where, specifically as a result of the judgments, it was found that an overspend occurred at the general election. In arriving at its decision, the Standards Commission had regard to the fact that the original High Court judgment was delivered on 16 May 2002, the last day of campaigning at the election. Prior to that date, agents and candidates were entitled to assume that the rules on spending were as set out in the relevant legislation and reflected in the guidelines published by the Standards Commission. The Standards Commission was mindful of the fact that it would be a defence to a prosecution for overspending that a person did not know, and could not reasonably have known, that he or she incurred election expenses above the statutory limit.

The Standards Commission also decided that if an overspend did occur, specifically as a result of the judgments, it would not be recommending to the Minister for Finance that the amount of the overspend should be deducted from the reimbursement of election expenses payable to the candidate or from the Exchequer funding payable to the political party. The making of such a recommendation was open to the Standards Commission under the legislation. The Standards Commission also pointed out that it had no function in relation to the petitioning of the High Court in any case where it was felt that an overspend had materially affected the outcome of the election.

An advisory letter issued to each election agent and national agent setting out a basis for calculating the value of election expenses which were met out of public funds.

At the time of writing, the Election Expenses Statements received by the Standards Commission are being processed in preparation for laying before both Houses of the Oireachtas. Having regard to the major effort made by the Standards Commission to assist agents in completing the necessary documentation, it is a matter of serious concern that the standard of some of the returns falls far short of what might reasonably have been expected. It is difficult to avoid the conclusion that this is due in many cases to lack of care on the part of agents coupled, perhaps, with an element of disregard for either the requirements of the legislation or the mandate of the Standards Commission, or both. The result has been that much reworking of the material has been necessary causing a long delay in placing it in the public domain. The Standards Commission is committed to ensuring that a full account of election expenditure will emerge at the end of the process.

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