Supreme Court declares 1997 Act election expense limits unconstitutional and invalid ab initio.

THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

McGuinness J.

Hardiman J.

168/02

BETWEEN

DESMOND KELLY

APPLICANT/RESPONDENT

AND

THE MINSTER FOR THE ENVIRONMENT, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS/APPELLANTS

JUDGMENT of the Court delivered the 29th day of November 2002, by Keane C.J.

Introduction

The applicant stood as a candidate for Dáil Eireann in the General Election which took place earlier this year. He was aggrieved by the

fact that outgoing members of the Dáil, the Seanad and the European Parliament did not have to include in the return of their election

expenses the property, services, and facilities paid for out of public funds to which they were entitled and which, as he claimed, they

made use of in their election campaigns. This, he said, gave those candidates who, unlike him, were sitting Dáil deputies, Senators or

MEPs an unfair advantage. In the result, he claimed, the relevant provisions of the electoral legislation were unconstitutional. The

claim succeeded in the High Court and the respondents/appellants have now appealed to this court.

The relevant legislation.

The Electoral Act, 1997 (hereafter “the 1997 Act”) imposed limits for the first time on the expenditure which could lawfully be incurred

by candidates in the course of their individual election campaigns. Section 31(1)(a) (as amended by the Electoral (Amendment) Act

2001) defined election expenses as

“all expenses falling within paragraph (b) incurred in the provision of property, goods or services for use at an election”

in order to promote the interests or policies of political parties, promote or oppose the election of candidates or otherwise to influence

the outcome of the election.

Section 32 of the 1997 Act then imposes a limitation on the election expenses which may be incurred by or on behalf of a candidate

at Dáil elections. Under S. 36, a statement must be furnished to the Public Offices Commission established under the Ethics in Public

Office Act 1995 (hereafter “The Commission”) within 56 days following the polling day at an election of all the election expenses

incurred in relation to the election. Section 43 of the Act provides that a person is to be guilty of an offence who exceeds the

limitation on expenses imposed by the Act or fails to furnish to the Commission within the specified period a statement of election

expenses which is false or misleading.

Section 31 (1))(b) of the 1997 Act (as amended by the Electoral (Amendment) Act 2001 provides that

“the expenses mentioned in the foregoing definition of ‘election expenses’ shall be those, and only those, set out in the Schedule to

this Act”.

Paragraph 1 of the Schedule sets out the expenses referred to in S 31(1)(b). It is unnecessary to set them out in extenso in this

judgment: they comprise advertising, publicity, election posters and other election material, office and stationery expenses, transport

and travel, market research and expenses in respect of campaign workers.

Paragraph 2, which is the crucial paragraph for the purpose of these proceedings, then provides that

“for the avoidance of doubt, nothing in paragraph 1 of this Schedule extends to-

(a) any of the matters referred to in sub-paragraphs (i) – (v) of Section 22 (2)(b) or, in the case of a presidential election,

subparagraphs (i) – (v) of S.46 (2)(b)

(b) 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 or designated person of the party or election

agent of the candidates, or candidate, as the case may be,

(c) any expenses in respect of any property, services or facilities so far as those expenses fall to be met out of public funds,

(d) the payment by or on behalf of a candidate of the deposit under S.13 of the Act of 1997 or S.47 of the Act of 1992, as may be

appropriate,

(e) expenditure on the purchase of copies of the Register of Electors or parts thereof,

(f) the reasonable living expenses, (including accommodation) of a candidate or any person or persons working on behalf of the

candidate on a voluntary basis, or

(g) any sum dispersed by an individual out of the individual’s own resources for any minor expenses (not exceeding £100.00 in any

one payment) lawfully incurred in relation to the election if the said sum is not repaid to the person.”

Section 22(2)(b) of the 1997 Act, which is referred to in subparagraph (a) above, deals with “donations” to political parties.

Subsection 2(b) provides that the matters specified in sub-paragraphs (i) – (v) are to be deemed not to be a donation. It is agreed

that only the following subparagraphs are relevant to these proceedings:

“(i) Free postage provided for a candidate under Rule 22 of the Second Schedule to the Act of 1997 or Section 57 of the Act of 1992

or the said Section 57 as applied to Seanad elections by Section 25 of the Seanad Electoral (University Members) Act, 1937

(ii) Any payment, service or facility provided to a person out of public funds or money provided by an institution of the European

Communities or other intergovernmental organisation to which the State is a party (whether pursuant to this Act, the Oireachtas

(Allowances to Members) Acts, 1938 – 1996, the Ministerial and Parliamentary Offices Acts, 1938 – 1996, the European Assembly

(Irish Representatives) Act 1979 or otherwise) by virtue of being a member of either House of the Oireachtas, a holder of a

qualifying office (within the meaning of the Ministerial and Parliamentary Offices Acts, 1938 – 1996), the holder of a position referred

to in the Oireachtas (Allowances to Members) (Amendment) Act, 1994, a representative in the European Parliament, a political

party, a political group or any group of members in the Dáil, the holder of an elective or other public office or a member of,

delegate to or representative in a body established by or under an agreement or arrangement to which the State is a party….”

The contention advanced on behalf of the applicant in the High Court was, in essence, that these provisions made it clear that

property, goods or services provided for out of public funds, including the free postage and telephone facilities, secretarial services

and office accommodation provided to members of the Oireachtas or MEPs, were not to be taken into account in calculating the

expenditure by them in an election campaign and determining whether the limitations imposed by the 1997 Act on such expenditure

had been observed. This, it was argued, resulted in gross inequality, unfairness and invidious discrimination between such candidates

and other candidates.

The legislative provisions governing the payment of allowances and expenses to members of the Oireachtas and members of the

European Parliament begin with the Oireachtas (Allowances to Members) Act 1938. The long title of the Act – which is still the

Principal Act in this particular code – described it as

“an Act to make provision for the payment of allowances to members of each House of the Oireachtas in respect of their duties as

public representatives and for the grant to such members of free travelling facilities in connection with those duties.”

The Principal Act was amended by the Oireachtas (Allowances to Members) Act, 1962, S. 2 of which, in particular, provided that

“the following facilities shall, subject to such exceptions, restrictions and conditions as may be provided for by regulations be

granted to a member of Dáil Eireann or Seanad Eireann:

(a) free telephone calls from Leinster House,

(b) free postal facilities arising out of his parliamentary duties.”

Section 3 of the Oireachtas (Miscellaneous Provisions) and Ministerial and Parliamentary Offices (Amendment) Act 1996 provided for

the payment of a telephone allowance in respect of telephone calls otherwise than from Leinster House

“arising from the member’s parliamentary duties.”

The same Act also provided for the provision of

“secretarial facilities solely in connection with the member’s parliamentary duties.”

It should be noted that S. 33 of the Ministerial, Parliamentary and Judicial Offices and Oireachtas Members (Miscellaneous Provisions)

Act, 2001 provided for the deletion of the words “arising out of the member’s parliamentary duties” in S.2(b) of the 1962 Act.

The High Court and this court were also referred to the “Guidelines for the General Election to the 29th Dáil”. These guidelines were

published by the Commission pursuant to a requirement in S.4(b) of the 1997 Act. Those guidelines, in addition to setting out what

were to be regarded as “election expenses”, also contained a section headed “What are not election expenses”.

Paragraph 6, under that heading, was as follows:

“any payment, service or facility provided to a person out of public funds or monies provided by an institution of the European

Communities or other governmental organisations to which the State is a party, pursuant to specified legislation, by virtue of the

person being:

- a representative in the European Parliament;

- a member of the Dáil or Seanad;

- the holder of a qualifying office or position;

- the holder of an elective or other public office: or

- a member of, delegate to or representative in a body established by or under an agreement or arrangement to which the State is

a party.”

The evidence in the High Court

The applicant in an affidavit said that he had been selected as a Fianna Fáil candidate for the constituency of Dublin Mid-West in the

then imminent General Election. He said that it was possible that the other candidates would include outgoing members of the Houses

of the Oireachtas, e.g., Ms. Mary Harney TD., Mr. Austin Currie TD., and Senator Teresa Ridge. He deposed that it was “routine and

common practice” for the outgoing members of both houses to avail of the facilities and services provided to them out of public funds,

such as the provision of an office, secretarial support, printing facilities, photocopying facilities, telephone facilities, free stationery,

free postage, and other office services. He also said that it was his understanding that members of the Oireachtas have an allowance

of up to 1,750 prepaid envelopes per month and that it was common practice for such envelopes to be used for electoral purposes

following the dissolution of the Dáil. He also said that it was common practice for the outgoing members to stockpile such pre-paid

envelopes for the purposes of using them for electoral purposes during the course of an election campaign. While he had no complaint

in relation to the use by outgoing members of those facilities and resources, he did take issue with the fact that the outgoing

members were exempted from including the cost of such resources in the list of returnable expenses under the legislation.

In a replying affidavit by Mr. Peter Greene, a principal officer in the department of the first named respondent, there was exhibited a

letter from the Clerk of the Dáil addressed to each member concerning the effect of a dissolution of Dáil Eireann on their entitlement

and facilities under the legislation already summarised. It stated that secretarial assistance employed on a contract basis would be

paid up to and including polling day and, under the heading “Leinster House Complex”, said

“As has been the long standing established practice following the dissolution, the Leinster House complex will remain open to

facilitate the orderly wind-down of public representational activities.”

There were also affidavits before the High Court from Professor Richard Sinnott of the Department of Politics and Institute for the

Study of Social Change in University College, Dublin and Professor Michael Marsh, Associate Professor of Political Science and Head of

the Department of Political Science in Trinity College, Dublin. These dealt in considerable detail with the alleged advantages accruing

to outgoing Dáil Deputies and Senators in contesting elections and the effect in electoral terms, if any, of their being exempted from a

requirement to include the expenses in question in the returns of expenses incurred by them. However, having regard to the manner in

which the appeal was dealt with in this court it is unnecessary, in the view of the court, for them to be referred to any further.

The Judgment in the High Court

In his careful and comprehensive judgment, the learned High Court judge (McKechnie J), having summarised the relevant legislation,

the evidence on affidavit and the contentions on behalf of the parties, rejected a submission on behalf of the respondents/appellants

that, in conformity with well-settled rules of statutory construction, the impugned provisions of the 1997 Act could be construed in a

constitutional manner so as not to afford any exemption in respect of the facilities in question. The trial judge said that he was

satisfied that such a construction was not reasonably open and that the Oireachtas had intended to exempt the expenditure in

question from the categories of election expenses which candidates were required to return.

The trial judge went on to find that, in the light of the authorities, and, in particular, the decision of this court in McKenna –v- An

Taoiseach and Others (No.2) [1995] 2IR 10, the provisions in question must be regarded as constituting unequal treatment of

candidates and that no justification had been, or could be, offered for such discrimination.

The trial judge, accordingly, granted a declaration in the following terms:

“THE COURT DOTH DECLARE that paragraph 2(a) of the Schedule to the [1997 Act] insofar as it exempts from the provisions of the

Act restricting electoral expenses, those electoral expenses within the terms of S.22(2)(b)(ii) of the Act of any person who is a

member of either House of the Oireachtas or who is a representative in the European Parliament is invalid having regard to the

provisions of the Constitution

and

THE COURT DOTH DECLARE that paragraph 2 (c) of the Schedule to the [1997 Act] is invalid having regard to the provisions of the

Constitution.”

The judgment and order of the High Court were given before the holding of the General Election. Following that election, the

Oireachtas enacted the Electoral (Amendment) (No. 2) Act, 2002, S.1 of which extended the time for returning the statements as to

electoral expenses, required by S.26 of the 1997 Act, by a period of 167 days following the polling day or the 21 days next following

the date of pronouncement by this court of its decision on this appeal, whichever was the longer.

Submissions on behalf of the Parties

Mr. Eoghan Fitzsimons SC, on behalf of the respondents/appellants accepted that, if the construction adopted by the learned High

Court judge of the impugned provisions of the 1997 Act was correct, it followed that unequal treatment was being unjustifiably

afforded to candidates and that this was invalid, having regard to the provision of the Constitution and the authorities referred to in

the judgment of the trial judge.

Mr. Fitzsimons submitted, however, that the construction adopted by the trial judge was not correct. He said these provisions, having

been enacted by the Oireachtas, were entitled to the benefit of the presumption of constitutionality, as a result of which the relevant

provisions are presumed to be constitutional unless repugnancy to the Constitution is clearly established, citing the decision of the

former Supreme Court in In Re Article 26 and the Offences Against the State (Amendment) Bill (1940) IR 470. He further submitted

that, in accordance with the decision of this court in McDonald –v- Bord na gCon and Another [1965] IR 217, if in respect of these

provisions two or more constructions were reasonably open, one of which was constitutional and the other unconstitutional, it must

be presumed that the Oireachtas intended only the constitutional construction.

Mr. Fitzsimons submitted that the Oireachtas in enacting these provisions must be presumed to have been aware that the allowances

and expenses which were 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. It followed that the Oireachtas could not have intended expenditure of this nature to be included in the expenses set out in

S.31(1)(b): that would be to attribute to the Oireachtas an implicit endorsement of what was clearly not a proper practice.

Mr. Fitzsimons submitted that Paragraph 2 of the Schedule had to be read in that context. The inclusion of subparagraphs (a) and (c)

did not constitute an exemption of expenditure of this nature from the category of election expenses: it was rather a recognition that

expenditure of this nature could never constitute legitimate electoral expenditure and this, he said, was borne out by the use of the

words “for the avoidance of doubt” at the beginning of the Schedule.

Mr. Fitzsimons further submitted that the evidence adduced on behalf of the applicant that the facilities in question had been used for

electioneering purposes in the past was not a relevant consideration, since it was clear that an Act of the Oireachtas could not be

treated as having been invalidly enacted simply because of the manner in which it had been implemented, citing the decision of

Barrington J in the State (Boyle) –v- The Governor of the Curragh Military Detention Barracks [1980] IRM 242. Mr. Fitzsimons said

that the learned High Court judge was wrong in taking account of this evidence, as he clearly did.

On behalf of the applicant, Mr. John Rogers SC submitted that it was clear from the provisions of S.31 of the 1997 Act, as amended,

that the legislature were of the view that all the matters set out in paragraphs (a) to (g) of Paragraph 2 came within the definition of

electoral expenses. He said that, had the legislature not enacted Paragraph 2 of the Schedule, all of the expenditure in issue in these

proceedings would have been subject to the requirement that they be included in the returns to the Commission. By enacting

Paragraph 2 of the Schedule, the Oireachtas sought to exempt, and did exempt, from the definition of election expenses all the

matters listed in sub-paragraphs (a) to (g) of Paragraph 2. Had that not been the intention of the Oireachtas, it would simply not

have enacted Paragraph 2.

Mr. Rogers further submitted that, far from the expenditure being prohibited by the 1997 Act, or indeed any other legislative provision,

the impugned provisions constituted an express recognition that the facilities and services in question were used for electoral

purposes by outgoing representatives. The legislature had gone on expressly to exempt those representatives from having to include

the facilities in question in the computation of electoral expenses. The inclusion of the expenses in the category of returnable

expenses followed by their express exemption was a clear acknowledgement that the expenses in question could and would be used

for electoral purposes.

Mr. Fitzsimons SC further submitted that, in the event of the appeal not being allowed, this court should rule on whether the effect of

the judgment was prospective only, in accordance with the procedure adopted by the court in Murphy –v- Attorney General [1982] IR

241. He submitted that since, following the enactment of the 1997 Act, outgoing Dáil Deputies, Senators and MEPs had acted in

accordance with the terms of the legislation and had not treated the expenses in question as election expenses, it would be unjust at

this stage to expose them to the possibility of being prosecuted for a criminal offence. He submitted that, in these circumstances, the

court should determine that the effect of the finding of constitutional invalidity, if that was the outcome of the appeal, should be

prospective only and should not have effect in relation to any expenditure by candidates at the General Election earlier this year.

The Applicable Law

It is clear, in accordance with the decision of the former Supreme Court in In Re Article 26 of the Constitution and the Offences

Against the State (Amendment) Bill 1940, that where any particular law is not expressly prohibited and it is sought to establish that it

is repugnant to the Constitution by reason of some implied prohibition or repugnancy, such repugnancy, as a matter of construction,

must be clearly established.

In this case, it is accepted on behalf of the appellants/respondents that, if the impugned provisions fall to be construed in the manner

contended for on behalf of the applicant, as the High Court decided they do, they would be clearly invalid, having regard to the

provisions of the Constitution, as constituting unequal treatment of candidates for which no justification had been, or could be,

offered.

In arriving at a conclusion as to whether the impugned provisions are to be construed in the manner contended for on behalf of the

appellants, the court must bear in mind the rule of “double construction”, as it has sometimes been called, laid down in the judgment

of the court as delivered by Walsh J in McDonald –v- Bord na gCon and Another as follows:

“[The Act], being an Act of the Oireachtas, is presumed to be constitutional until the contrary is clearly established. One practical

effect of this presumption is that if in respect of any provisions or provisions of the Act two or more constructions are reasonably

open, one of which is constitutional and the other or others are unconstitutional, it must be presumed that the Oireachtas intended

only the constitutional construction and a court called upon to adjudicate upon the constitutionality of the statutory provision should

uphold the constitutional construction. It is only when there is no construction reasonably open which is not repugnant to the

Constitution that the provision should be held to be repugnant.”

Conclusions

The wording of Paragraph 2(a) and (c) of the Schedule to the 1997 Act is, in the opinion of the Court, plain and unambiguous. It

provides that the expenses therein mentioned, including matters such as the provision of office accommodation, secretarial facilities

and telephone and postal facilities to members of the Oireachtas and of the European Parliament, are not to be treated as “election

expenses” for the purposes of Part V of the 1997 Act. No other construction of the provisions in question is, in the view of the court,

reasonably open.

It may well be the case, as urged by Mr. Fitzsimons, that the Oireachtas did not contemplate that expenditure of this nature would

be availed of by outgoing members of the Oireachtas or members of the European Parliament for the purposes of their election

campaigns. It may be that they were intended to be availed of only for the performance of their duties as legislators or public

representatives. The fact remains that the Oireachtas, in plain and unambiguous language, said that such expenditure was not to be

treated as “election expenses”. 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, in some sense, improper cannot conceivably

justify a construction of the provision which, far from being reasonably open, is directly at variance with what the legislature actually

said.

The use of the words “for the avoidance of doubt”, at the beginning of Paragraph 2, does not point to any different conclusion. That

expression is, of course, frequently employed in statutes when the legislature is expressly refraining from altering the law in any way

and seeks to make it clear beyond doubt that the existing law remains unaltered. If the expression had been used solely by way of

introduction to the impugned provisions, their use might have lent some support, however tenuous, to the construction urged on the

court on behalf of the applicant. Where, however, they are used by way of introduction to the removal from the category of

expenses of all the matters set out in Paragraph 2, they are wholly devoid of any such significance. Thus, to take the most obvious

example, the removal by virtue of paragraph (g) of casual expenditure where it did not exceed £100 from the categories of “election

expenses” could not, on any view, be regarded as simply a re-statement, for the avoidance of doubt, of an already existing law.

The court is, accordingly, satisfied that the decision by the High Court that the provisions in question were invalid having regard to

the provisions of the Constitution was correct and should be affirmed.

As to the application on behalf of the respondents/appellants that this court, in the event of the appeal being disallowed, should

declare that the order of the High Court declaring the relevant provisions to be invalid having regard to the provisions of the

Constitution should be prospective only in its effect and should not affect any expenditure by members of the Oireachtas at the

recent General Election, this was an issue upon which no ruling was made in the High Court. The jurisdiction of this court is, in

general, an exclusively appellate jurisdiction and the question, accordingly, arises as to whether the court has any jurisdiction to

grant an order of the nature sought on behalf of the respondents/appellants. It is true that such a course was adopted in Murphy –v-

The Attorney General: the court, however, notes that the circumstances in that case were exceptional and, it may be, unique.

Assuming however that the court has jurisdiction to make a declaration of the kind sought by the respondents/appellants, the court is

not satisfied that it would be appropriate to grant relief of that nature in the circumstances of the present case.

As was made clear in Murphy –v- The Attorney General, the effect of the decision of the court in this case is that the impugned

provisions were invalid ab initio and have never had the force of law. It is true that, in that case, this court held that the plaintiffs

were the only taxpayers entitled to maintain a claim for restitution of tax in pursuance of the court’s decision, unless proceedings had

been instituted by any other taxpayer challenging the validity of the impugned sections. That case was, however, concerned with the

possible repayment by the State to taxpayers of substantial sums of money which had been collected by the State for many years in

pursuance of statutory provisions presumed to be constitutional. It was held that, applying the normal principles of the law of

restitution, the monies, save in the case of the plaintiffs, were not recoverable. No such considerations arise in the present case: all

that is prayed in aid in support of making the proposed declaration is the possible exposure of the deputies and senators concerned to

criminal prosecutions, even though they participated in the General Election on the basis of the provisions of an Act ostensibly in

force at the time and, moreover, when the Commission in its guidelines advised them that they could so act. Whether, in such

circumstances, any such prosecutions should be instituted and, if so, how they should be dealt with by the courts are not matters

which this court feels it should anticipate.

The court, accordingly, is satisfied that it should not make any declaration of the nature sought on behalf of the

respondents/appellants.