Outgoing Dáil deputies, senators and members of the European Parliament cannot use the free services available to them in Leinster House and in Strasbourg for re-election purposes, the State conceded at the High Court yesterday.
Property, services and facilities made available to TDs, senators, MEPs, Ministers and other office holders are available to them by virtue of their office, but are not made available for the purpose of electioneering in the current general election.
Mr Eoghan Fitzsimons SC, for the State, added that such services may be used by incumbent politicians in the "running down" of their formal activities as public representatives in the period up to polling day. However, they were not permitted for the purpose of re-election.
He was addressing the court on the opening day of an application by Dublin Mid West Fianna Fáil Dáil candidate Mr Desmond Kelly for a declaration that current electoral legislation is unconstitutional because it discriminates in favour of sitting members of the Dáil, Seanad and European Parliament in the general election.
Mr Kelly, of Moyglas Dale, Lucan, says provisions attached to the 1997 Electoral Act are unconstitutional. He wants a declaration that any limit on election campaign spending - at the moment confined to £20,000 (€25,395) - must be equal for all eligible candidates for Dáil elections.
A move by Fine Gael to have the constitutional challenge postponed to consider whether it should become a party in the proceedings was rejected by Mr Justice McKechnie. However, the judge gave counsel for FG permission to make submissions.
Mr Maurice Collins, for FG, said the case had serious implications for outgoing members standing for re-election. Depend- ing on its outcome, such candidates might be retrospectively assessed for the use of currently exempted facilities and this could push them over the current £20,000 spend limit.
Mr Kelly, who missed becom- ing a councillor by eight votes in the 1999 local authority election, said outgoing parliamentarians enjoyed significant services paid for out of public funds, and not available to other candidates. These included provision of an office, secretarial support, printing, photocopying and phone services as well as free stationery, postage, computer services, fax facilities and sundry other office services.
During yesterday's proceedings it was stated that those who do not comply with the 1997 Act, and over-spend, can be fined up to £20,000 and imprisoned for up to three years.
Mr John Rogers SC, for Mr Kelly, said the exemption contained in the 1997 Act gave rise to a profound inequality between candidates. This was the core of their case.
Mr Fitzsimons said his clients were concerned that the primacy of equality must apply in an election.
The hearing continues next Tuesday.