Kelly v Minister for Environment

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice William M. McKechnie
Judgment Date16 May 2002
Neutral Citation[2002] IEHC 38

[2002] IEHC 38

THE HIGH COURT

No. 2002/172 JR
KELLY v. MINISTER FOR ENVIRONMENT & ORS
JUDICIAL REVIEW

BETWEEN

DESMOND KELLY
APPLICANT

AND

THE MINISTER FOR THE ENVIRONMENT IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

Citations:

ELECTORAL ACT 1997 SCHED PARA 2(a)

ELECTORAL ACT 1997 PARA 2(c)

ELECTORAL (AMDT) ACT 2001 S50(k)

ELECTORAL (AMDT) ACT 2001 S50(v)

CONSTITUTION ART 5

CONSTITUTION ART 6

CONSTITUTION ART 16.1

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3.1

ELECTORAL (AMDT) ACT 2001 S22(2)(b)(ii)

ELECTORAL ACT 1997 S32(1)

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

O'REILLY V MIN FOR ENVIRONMENT & AG 1986 IR 143

COUGHLAN V BROADCASTING COMPLAINTS COMMISSION, RTE & AG 2000 3 IR 1

REDMOND V MIN FOR ENVIRONMENT, IRELAND & AG UNREP HERBERT 31/7/2001

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

MCDONALD V BORD NA GCON & ANOR 1965 IR 217

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD V AG 1970 IR 317

PURCELL V AG & ANOR 1995 3 287

CONSTITUTION ART 16.1.1

CONSTITUTION ART 16.1.2

CONSTITUTION ART 16.1.3

CONSTITUTION ART 16.1.7

CONSTITUTION ART 40.3.2

ELECTORAL ACT 1997 PART IV

ETHICS IN PUBLIC OFFICE ACT 1995 S21

STANDARDS IN PUBLIC OFFICE ACT 2001 S2

ELECTORAL ACT 1997 S22(2)(b)

ELECTORAL ACT 1997 S31

ELECTORAL ACT 1997 S31(1)(b)

ELECTORAL ACT 1998

ELECTORAL ACT 1997 S32

ELECTORAL ACT 1997 S22(2)

ELECTORAL ACT 1997 S31(1)(a)

ELECTORAL ACT 1997 S31(1)(b)

ELECTORAL ACT 1997 SCHED PARA 1

ELECTORAL ACT 1997 SCHED PARA 2

ELECTORAL ACT 1997 S32(1)(a)

BUCKLEY V AG 1950 IR 67

WOODS, STATE V AG 1969 IR 385

MCDAID V SHEEHY 1991 1 IR 1

PIGS MARKETING BOARD V DONNELLY 1939 IR 413

RYAN V AG 1965 IR 294

GOODMAN INTERNATIONAL V HAMILTON NO 1 1992 2 IR 542

QUINN, STATE V RYAN 1965 IR 170

AG, PEOPLE V CONMEY 1975 IR 341

R V R 1984 IR 296

HEGARTY V O'LOUGHRAN 1990 1 IR 148

DOYLE V AN TAOISEACH 1986 ILRM 693

OIREACHTAS (ALLOWANCES TO MEMBERS) ACT 1962 S2

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

OIREACHTAS (ALLOWANCES TO MEMBERS) & MINISTERIAL & PARLIAMENTARY OFFICES (AMDT) ACT 1992

OIREACHTAS (ALLOWANCES TO MEMBERS) (TELEPHONE & POSTAL FACILITIES) (AMDT) REGS SI 99/1998

OIREACHTAS (ALLOWANCES TO MEMBERS) (TELEPHONE & POSTAL FACILITIES) (AMDT) REGS SI 388/2001

ELECTORAL ACT 1997 S31(1)(f)

ELECTORAL ACT 1997 S31(1)(g)

ELECTORAL ACT 1997 SCHED PARA 2(b)

ELECTORAL ACT 1997 SCHED PARA 2(c)

ELECTORAL ACT 1997 SCHED PARA 2(d)

ELECTORAL ACT 1997 SCHED PARA 2(e)

ELECTORAL ACT 1997 SCHED PARA 2(f)

ELECTORAL ACT 1997 SCHED PARA 2(g)

NICOLAOU, STATE V BORD UCHTALA 1966 IR 567

QUINN'S SUPERMARKET LTD & ANOR V AG & ORS 1972 IR 1

ELECTORAL ACT 1963 S15

CASEY CONSTITUTIONAL LAW 3ED 2000 450

O'DONOVAN V AG 1961 IR 114

BROADCASTING ACT 1960 S18

CONSTITUTION ART 16.7

GLOVER V BLN LTD 1973 IR 388

HAUGHEY, IN RE 1971 IR 217

Synopsis:

JUDICIAL REVIEW

Constitution

Election law - Politics - Statutory interpretation - Equality - Election expenses - Whether legislation limiting election expenditure discriminated against non-sitting candidates - Electoral Act, 1997 - Electoral (Amendment) Act, 2001 - Bunreacht na hÉireann, 1937 Article 40.1. (2002/172 - McKechnie J - 16/05/2002)

Kelly v Minister for the Environment - [2002] 4 IR 191

Facts: The applicant issued judicial review proceedings seeking to challenge certain aspects of the Electoral Act, 1997 as being repugnant to the Constitution. The applicant contended that legislation imposing statutory limitations on election expenses infringed the principle of equality for all prospective candidates in the election. The applicant was a declared candidate for the General Election. It was argued that the present members of the Oireachtas had access to a wide range of services which gravely disadvantaged non-incumbents which resulted in gross inequality and unfairness. The respondents disputed the arguments of the plaintiff and argued that the relevant provisions when properly interpreted did not give rise to any inequality or unfairness. It was also argued that the role of representatives continues up until polling day and as such it was necessary that facilities be made available.

Held by Mr. Justice McKechnie in finding in favour of the applicant. Since 1939 there was a presumption that every Act of the Oireachtas was constitutional. The State in its electoral laws must have regard to the concept of equality and must ensure that any provisions passed into law guaranteed the principle of equality as outlined in the Constitution. The availability of such facilities to outgoing candidates was unfair and discriminatory and when the cap on expenditure by new candidates was added the result was unjust, unreasonable and arbitrary. No justification for this unequal treatment existed and the impugned provisions were repugnant to the Constitution.

1

Mr. Justice William M. McKechnie delivered on the 16 day of May 2002.

The Leave Order:
2

1. By order of this Court dated the 8th day of April, 2002, the applicant in the above entitled proceedings was given leave to apply, by way of an application for Judicial Review, for the reliefs specified in paragraph D (1) to (10) inclusive, of the Statement grounding the application and was so on the grounds contained in paragraph E (1) to (19) thereof. As the subject matter of the challenge involved certain provisions of the Electoral Act 1997, as amended, and as the Court's ruling could have some as yet unidentified consequences for election expenditure to the 29th Dáil, the documentation in this case was processed with considerable haste. Following the filing of a Statement of Opposition and the affidavits in support thereof, the pleadings were rapidly closed with written legal submissions being then exchanged between the parties and filed in Court. The matter commenced its full hearing on Thursday the 9th day of May and concluded on the 15th of May. The Court now gives its judgment in respect thereof.

The Reliefs:
3

2. The reliefs which the applicant seeks are as follows:-

4

(1) A declaration that paragraphs 2 (a) and (c) of the Schedule to the Electoral Act 1997(as inserted by section 50 (k) and 50 (v) of the Electoral (Amendment) Act 2001), are invalid having regard to the provisions of the Preamble, Articles 5, 6, 16.1 and/or Article 40.1 and/or Article 40.3.1 of the Constitution of Ireland,

5

(2) A declaration that the respondents have failed and/or are failing to vindicate the constitutional rights of the applicant in materially exempting outgoing members of the Dáil, Senate and European Parliament from the requirements of complying with statutory limitations on election expenses in Dáil elections,

6

(3) A declaration that the applicant is entitled to participate in any prospective Dáil election on terms of equality between citizens and according to the provisions of the Constitution generally and in particular the provisions of the Preamble, Articles 5, 6, 16.1, 40.1 and 40.3.1, and finally,

7

(4) A declaration that any limit on election campaign spending imposed must be equal for all eligible candidates for Dáil elections.

The Grounds:
8

3. The grounds upon which this challenge was permitted, commence with an indication that the applicant is a declared candidate for the General Election to the 29th Dáil, which election has assigned to it a polling day of May the 17th. On the 28th of November, 2000, Mr. Kelly was selected by his local Fianna Fáil organisation as a candidate to run in the three seat constituency of Dublin Mid-West. That selection was at a later date ratified by Fianna Fáil's National Executive. In this constituency contest, several candidates have put forward their names for consideration to the electoral. Two such persons are members of the outgoing Dáil with a third being a member of the present Seanad. All others, including the applicant, are not members of either House of the Oireachtas of the 28th Dáil.

9

4. By reason of and following the passing of the Electoral (Amendment) Act 2001, there is now for the first time in this jurisdiction a limit on the expenditure which prospective candidates can use during the course of a National election campaign. In the case of Mr. Kelly's constituency the sum is €25,394.76. For a four seat and five seat constituency the amounts are €31,743.45 and €38,092.14, respectively. Subject to the essential complaint being made in this case, each candidate must comply with the stated limitation appropriate to his or her constituency. He or she must, within 56 days next following polling day, account in writing for his or her election expenses to the Standards in Public Office Commission. There are offences created and penalties specified for any breach of these electoral provisions.

10

5. The essence of the applicant's claim is that in his reading of the relevant provisions of the 1997 Act, as amended, any "payment, service or facility provided to a person out of public funds" by virtue of that person, being a member of either House of the Oireachtas or of the European Parliament, is exempt from the definition of election expenses as given in the aforesaid Acts. See sec. 22 (2) (b) (ii) of the amended Act, as applied to such expenses by par. 2 (a) of the Schedule thereto. A similar claim is made in respect of any of the expenses within par 2 (c) of the said Schedule. Since each member of the House is entitled to an array of highly relevant and valuable services, goods, facilities and expenses, which the argument goes, are routinely used by such persons in their quest for re-election, then he, Mr. Kelly, as a non-incumbent of either House, is gravely disadvantaged. He claims that as a result there is gross inequality, unfairness, and invidious discrimination between outgoing members who seek re-election, and non-members who are standing for the first...

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