Report re spending at Dáil General Election of 2002 (Text)

Chapter 7 The Kelly case

Mr. Desmond Kelly, a Fianna Fáil candidate in the Dublin Mid-West constituency at the Dáil general election, who was not an outgoing member of either House of the Oireachtas, took an action in the High Court against the Minister for the Environment and Local Government, Ireland and the Attorney General, in which he claimed that certain provisions of the Electoral Acts were repugnant to the Constitution. The provisions in question were those contained in paragraphs 2(a) and (c) of the Schedule to the 2001 Act (see Chapter 6 - point 4 on page 17) which, in essence, provided that where expenses were incurred on property, services or facilities which were used at the election and the costs were met out of public funds, they would not be regarded as election expenses. He contended that the provisions in question placed him at a disadvantage by discriminating in favour of outgoing members of the Houses and that, in relation to the spending limits, a level playing field did not exist for all candidates at the election.

The High Court judgment was delivered on 16 May 2002. It was held that the impugned provisions did give rise to disadvantage in the case of candidates who were not outgoing members of the Houses of the Oireachtas and were repugnant to the Constitution.

The High Court judgment was appealed by the State to the Supreme Court. The outcome of the appeal would ultimately determine whether, and to what extent, it would be necessary for election agents and national agents to account for election expenses where the costs were met out of public funds. On 29 November 2002 the Supreme Court affirmed the High Court judgment. The Supreme Court further held that it would not declare that the judgment of the High Court should have prospective effect. This meant that any expenses incurred on property, services or facilities, which were used at the election and the costs were met out of public funds, would have to be included in the Election Expenses Statements furnished by election agents and national agents to the Standards Commission.

Prior to final determination of the matter by the Supreme Court, the Standards Commission had considered the implications of the High Court judgment and had decided that it would not be appropriate for it to refer a file to the DPP where, specifically as a result of the judgment, an overspend occurred at the general election. In arriving at this decision, the Standards Commission was mindful of the fact that the judgment was delivered on 16 May 2002, which effectively was the last day of campaigning at the election. Up to that date, agents and candidates were entitled to assume that the rules on spending were as set out in the relevant legislation and, necessarily, reflected in the guidelines published by the Standards Commission. In making its decision the Standards Commission was aware that, in a prosecution relating to overspending, it is a defence 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 had also decided that, if an overspend occurred specifically as a result of the judgment, it would not invoke that provision of the legislation which enabled it to recommend 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, where an overspend was incurred by the national agent of a political party, from the Exchequer funding payable to the party.

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