A High Court decision yesterday that provisions of the 1997 Electoral Act are unconstitutional has opened the possibility of legal challenges to the election of certain candidates in the general election. It has also created the possibility of prosecution of candidates who may unknowingly have exceeded spending limits.
Mr Justice McKechnie declared that the impugned provisions - which exempt from the calculation of election expenses a range of services provided free to outgoing TDs, Senators and MEPs - are unconstitutional because they create inequality between sitting politicians and new challengers.
The provisions were discriminatory, there was no justification offered for this unequal treatment "and, in my view, none could exist", the judge said.
The services involved include secretarial services, office space, phone services, postage, stationery, printing and photocopying. Mr Justice McKechnie said the provisions created inequality between incumbent members of the Dáil and Seanad and new challengers and a rectifying solution to this invidious discrimination "must be found". That was a matter for the Oireachtas, not the court. He stressed he was not dealing with the consequences of his judgment for today's election.
He added it was his view that the placing of a limit on election spending was "healthy". But he stressed, that must be done in accordance with due process.
The challenge to the legislation (paragraphs 2a and 2c of the Schedule to the Electoral Act 1997, as amended by the Electoral Act 2001) was taken by a Fianna Fáil candidate in the Dublin Mid-West constituency, Mr Des Kelly, of Lucan, Co Dublin.
He said afterwards: "I took the case on the basis of fairness. I was satisfied from day one that I had moral right on my side and now I have legal right." According to legal sources, the decision could have serious implications when the election candidates, as required under legislation, submit their spending returns in 56 days time. Under legislation passed in 2001, there is now a limit on election spending ranging upwards from some €25,000 for a three seat constituency. Today's election is the first where that limit applies. Any candidate who breaches the limit is open to prosecution. The difficulty for outgoing TDs and Senators is that they would not have included the free services available to them when making their spending calculations at the outset of the election campaign.
An unsuccessful election candidate could also challenge the result in a particular constituency if they believed a winning candidate had exceeded the spending limit. If challenged, outgoing members are likely to plead yesterday's court decision should not be applied retrospectively but whether that plea will succeed remains to be seen. In his decision, Mr Justice McKechnie noted the State had not challenged Mr Kelly's evidence of widespread use by incumbent TDs, Senators and MEPs of the free services, which were paid for out of public funds.
He also noted evidence from Prof Richard Sinnott and Dr Michael Marsh where both agreed that incumbent politicians do better than new challengers in elections and enjoy an advantage of some 3.2 per cent or 1,400 votes.
Dr Marsh, who made an affidavit for the State, had argued there was nothing to show this advantage was due to the free facilities available to incumbents, while Professor Sinnott, who made an affidavit for Mr Kelly, argued the facilities discriminated against new challengers and in favour of incumbents.
The judge said the State must, in its election laws, have regard to the principle of equality and ensure that all provisions passed into law comply with the constitutional guarantee of equality of treatment. The legislature could not in any statute give unjustified advantage to any person or class of persons. The concept of fairness, fair basic procedures and equality must apply to all candidates. If there was discrimination, it must be justified.
The free facilities available to incumbent members of the Dáil and Seanad were of particular relevance and value to them when seeking re-election. No tools could be more important than phone communication and postage.
Even if there was no cap on expenditure for candidates, the availability of such services out of public funds could be said to be unfair and discriminatory. When one added a cap, the resulting situation was discrimination. There was no justification offered for this unequal treatment and in his view, none could exist.
The judge said it was clear an outgoing member had a great chance of retaining their seat than a new candidate had of dislodging them. It was especially important not to exacerbate the difference in a manner that placed a greater disadvantage on non-incumbent candidates. All candidates have to comply with the limits on election spending, he said.
