The State this morning lost its Supreme Court appeal against a landmark High Court ruling on election expenses.
The Supreme Court upheld a High Court ruling in a case last May taken by Fianna Fáil election candidate Mr Des Kelly that election-spending limits unfairly discriminate in favour of outgoing members of the Oireachtas.
The decision opens the possibility of narrowly defeated Dáil and Senate candidates taking legal challenges to the High Court in instances where a sitting TD has been proven to have overspent during the election campaign. The High Court will then have to decide whether the election result should be set aside, opening the possibility of a by-election being called.
Mr Kelly, had argued that the provisions of the 1997 Electoral Act excluded from calculation the services provided for free to outgoing TDs and Senators such as office space, secretarial services, stationary and printing services.
In the judgement delivered by the Chief Justice Mr Ronan Keane, Mrs Justice Denham, Mr Justice Murray, Mrs Justice McGuinness and Mr Justice Hardiman this morning, the State's request that the ruling on election expenses should not apply to the last election was rejected.
Mr Eoghan Fitzsimons SC, for the State, had suggested the High Court ruling was incorrect when it ruled that unequal treatment was being unjustifiably afforded to candidates.
He argued that when the Electoral Act, 1997 was enacted it must have been understood that allowances and expenses afforded to outgoing members of the Oireachtas and MEPs exclusively for the performance of their duties as public representatives could not properly be used by them for the purpose of an election campaign following the dissolution of the Dáil.
Therefore the Act did not intend expenditure of this nature to be included in the expenses set out.
But Mr John Rogers SC, for Mr Kelly, said it was clear from the 1997 Act, that the legislature were of the view that matters set out in Paragraph 2 came within the definition of "electoral expenses".
This paragraph provides that "expenses incurred in the provision of property, goods or services used at an election where such property, goods or services was or were provided in respect of a previous presidential, Dáil, European or local election and the cost of providing such property, goods or services was included in the statement of election expenses furnished to the Public Offices Commission or to a local authority in relation to the said previous election by the national agent of the party . . . "
In its ruling the Supreme Court ruled that the fact, if it be the fact, that the Oireachtas did not contemplate the utilisation of these expenses for the purpose of election campaigns and may even be deemed to have regarded it as improper cannot conceivably justify a provision which, far from being reasonably open, is directly at variance with what the legislature actually said.
