Kelly v Minister for Environment, Ireland and Attorney General

• Jurisdiction: Ireland
• Judge: Keane C.J.
• Judgment Date: 29 November 2002
• Neutral Citation: [2002] IESC 73
• Court: Supreme Court
• Docket Number: [2002 No. 172 J.R. and S.C. No. 168 of 2002]
• Date: 29 November 2002

KELLY v. MINISTER FOR ENVIRONMENT & ORS

BETWEEN

DESMOND KELLY

APPLICANT/RESPONDENT

AND

THE MINSTER FOR THE ENVIRONMENT, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS/APPELLANTS

[2002] IESC 73

Keane C.J.

Denham J.

Murray J.

McGuinness J.

Hardiman J.

168/02

THE SUPREME COURT

Synopsis:

ELECTIONS AND REFERENDA

Dail Eireann

Constitution Right to equality in participation in elections - Right to fair procedures - Electoral spending limits - Right to democratic process - Whether limit on election campaign spending equal for all candidates - Whether outgoing members of parliament materially exempt from complying with statutory limits on election expenses - Whether guarantee of equality to citizens infringed by definition of election expenses that materially exempts outgoing parliamentarians from complying with statutory limits on election expenses - Whether provisions of statute unconstitutional - Whether effects of any ruling of constitutional invalidity should be prospective only - Electoral Act, 1997 sections 31 and 32 - Bunreacht na hÉireann, 1937, Articles 16, 40.1 and 40.3.1° (168/2002 - Supreme Court - 29/11/02)

Kelly v Minister for Environment, Ireland and Attorney General - [2002] 4 IR 222 - [2003] 2 ILRM 81

Facts: the applicant was granted a declaration by the High Court that paras. 2 (a) and (c) of the schedule to the Electoral Act, 1997, as amended, and which were referable to section 31 of that Act, were invalid as conflicting with Articles 16.1, 40.1 and/or 40.3.1º of the Constitution. He had contended that the effect of the Act was that "any payment, service or facility provided to a person out of public funds" by virtue of that person being a member of the Oireachtas was exempt from the definition of election expenses set out in the Act. Since these services were routinely used by incumbents in their quest for re-election then, as a non-incumbent, he was disadvantaged in that outgoing members of the Dáil, Senate and European Parliament were materially exempt from the requirements of complying with statutory limitations on campaign spending in Dáil elections set out in section 32 of the Act of 1997. He had contended that the impugned provisions of the Act in themselves, and their application in practice, created gross inequality, unfairness and invidious discrimination between outgoing members who sought re-election, and non-members who were standing for the first time in relation to the limits on election campaign spending. The State appealed that decision and further submitted that in the event of the appeal being disallowed, the Supreme Court should rule that the effect of the judgment was prospective only. The grounds of appeal were that the provisions of the Act were reasonably open to an alternative, constitutional, interpretation and, applying the "double construction" rule, should be so interpreted.

Held by Keane C J in dismissing the appeal that the wording of paragraph 2 (a) and (c) of the Schedule to the Act of 1997 which provided that the expenses mentioned therein were not to be treated as "election expenses" was plain and unambiguous. No other construction of the provisions was reasonably open. As to the application that the effects of the judgment should be prospective only, the court held that this was an issue upon which no ruling had been made in the High Court and as the jurisdiction of the Supreme Court is exclusively an appellate one, it would not be appropriate to grant such relief.

Citations:

ELECTORAL ACT 1997 S31(1)(A)

ELECTORAL (AMDT) ACT 2001

ELECTORAL ACT 1997 S32

ELECTORAL ACT 1997 S36

ELECTORAL ACT 1997 S43

ELECTORAL ACT 1997 S31(1)(B)

ELECTORAL ACT 1997 SCH PAR 1

ELECTORAL ACT 1997 SCH PAR 2

ELECTORAL ACT 1997 S22(2)(B)

ELECTORAL ACT 1997 S22(2)(B)(A)

ELECTORAL ACT 1997 S22(2)(B)(A)(I)

ELECTORAL ACT 1997 S22(2)(B)(A)(II)

OIREACHTAS (ALLOWANCES TO MEMBERS) ACT 1938

OIREACHTAS (ALLOWANCES TO MEMBERS) ACT 1962 S2

OIREACHTAS (MISCELLANEOUS PROVISIONS) & MINISTERIAL & PARLIAMENTARY OFFICES (AMDT) ACT 1996 S3

MINISTERIAL PARLIAMENTARY & JUDICIAL OFFICES & OIREACHTAS MEMBERS (MISCELLANEOUS PROVISIONS) ACT 2001 S33

OIREACHTAS (ALLOWANCES TO MEMBERS) ACT 1962 S2(B)

ELECTORAL ACT 1997 S4(B)

MCKENNA V AN TAOISEACH & ORS (NO 2) 1995 2 IR 10

ELECTORAL ACT 1997 SCH PAR 2(A)

ELECTORAL (AMDT) (NO 2) ACT 2002 S1

ELECTORAL ACT 1997 S26

ARTICLE 26 & THE OFFENCES AGAINST THE STATE (AMDT) BILL, RE 1940 IR 470

MCDONALD V BORD NA GCON & ANOR 1965 IR 217

ELECTORAL ACT 1997 SCH PAR 2(c)

BOYLE, STATE V GOVERNOR OF CURRAGH MILITARY DETENTION BARRACKS 1980 ILRM 242

ELECTORAL ACT 1997 SCH PAR 2(B)

ELECTORAL ACT 1997 SCH PAR 2(D)

ELECTORAL ACT 1997 SCH PAR 2(E)

ELECTORAL ACT 1997 SCH PAR 2(F)

ELECTORAL ACT 1997 SCH PAR 2(G)

MURPHY V AG 1982 IR 241

ELECTORAL ACT 1997 PART 5

1 29th day of November 2002, by Keane C.J.

Keane C.J.

Introduction

2 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.

3 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"

4 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.

5 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.

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

7 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.

8 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."

9 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:

10 i "(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

11 (ii)...