Court rules constituency unit not poll expense

The Minister for Health, Mr Martin, was entitled to decide that the cost of the constituency unit in his Department did not constitute an election expense, the High Court found yesterday.

Mr Justice Kelly was giving his reasons for his decision last December to dismiss a challenge by disability campaigner Ms Kathy Sinnott to the May 2002 general election result in Mr Martin's Cork South Central constituency.

On December 1st last, Mr Justice Kelly ruled Ms Sinnott had failed to establish her claim that Mr Martin had spent beyond his statutory limit of €38,092 during the election campaign, but said he would give his reasons for that decision later.

Mr Justice Kelly stressed that his finding was based on evidence put before him in the unsuccessful challenge by Ms Sinnott and related only to that situation.

Depending on the activity which is carried on in constituency units of government departments, there may well be cases where some or indeed all of the costs of such a unit would be reckonable as an election expense, he said.

In Mr Martin's case, he found the unit was not engaged in electoral work.

Mr Justice Kelly also found that the cost of a special adviser and civil servant, Mr Hugh Mannion, did not constitute an election expense. Nor was the Minister required to include in his declared expenses the cost of another adviser and civil servant, Ms Gillane, who took annual leave to work on Mr Martin's election campaign.

If Mr Martin were compelled to include Ms Gillane's work as an expense, as Ms Sinnott had urged, it would sound the death knell for voluntary election campaign workers, the judge said.

Dealing with matters relating to Mr Martin's reassignment of funds to Fianna Fáil, the judge said these could have been done in a more satisfactory way and noted Fianna Fáil's national agent, Mr Hugh Dolan, had accepted that.

Mr Justice Kelly said he had little doubt that at least some of the difficulties arose from the fact that new legislation on spending limits was being applied at a general election for the first time. Matters were also made more complicated because of a High Court decision that outgoing TDs, Senators and MEPs must include expenditure from public funds in their election expenses.

However, matters were not helped by the "rather covert nature" of arrangements to deal with marginal constituencies which were being discussed at national level in Fianna Fáil apparently in breach of a decision by the party's national executive that all candidates should assign half of their spending limit to the party, he added. The judge was referring to decisions by Fianna Fáil officials that some candidates in marginal constituencies might have access to additional funds if required.

Nor was the situation helped by frenetic activity which had to take place on the eve of the last day for making spending returns to the Standards in Public Offices Commission (POC).

If election petitions of the sort brought by Ms Sinnott were to be avoided in the future, it would be prudent to ensure that any reassignments of funds should be well documented, he said.

The judge has adjourned to February 13th the issue of who will pay the estimated €500,000 costs of the challenge.

Counsel for Cork South Central Fine Gael TD Mr Simon Coveney, who was served with the proceedings, said his client would not be applying for his costs.

Mr Martin topped the poll in the five-seater Cork South Central constituency in the May 17th 2002 general election.

The other seats went to Fianna Fáil's Mr Batt O'Keeffe and Mr John Dennehy, Mr Coveney and Mr Dan Boyle of the Green Party. Ms Sinnott lost the battle for the last seat, by a margin of six votes, to Mr Dennehy.

Yesterday, Mr Justice Kelly upheld Mr Martin's claim that neither the constituency unit nor his special advisers were engaged in electoral work and therefore they did not require to be included in his spending statement.