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Kelly v. Minister for the Environment [2002] IEHC 38 (16 May 2002)

THE HIGH COURT

JUDICIAL REVIEW

No. 2002/172 JR

BETWEEN

DESMOND KELLY

APPLICANT

AND

THE MINISTER FOR THE ENVIRONMENT

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

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

The Leave Order:

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:

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

(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,

(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,

(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,

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

The Grounds:

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.

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.

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 time. If this argument should be correct it is claimed on his behalf that the statutory provisions which enable or permit this situation to exist, must violate essential features of the Constitution and in particular the Articles above mentioned.

The Opposition:

6. In the Statement of Opposition as filed, the principle response on behalf of the Minister and the Attorney General is set forth at paragraph 3 thereof. This reads as follows:-

“(iii). The property, services and facilities made available to members of Seanad Éireann in respect of which the applicant makes complaint are made available to them by virtue of they're being members of Seanad Éireann. The property, service and facilities made available to members of the European Parliament in respect of which the applicant makes complaint are made available to them by virtue of they’re being members of the European Parliament. The property, services and facilities made available to members of Dáil Eireann, in respect of which the applicant makes a complaint, are provided by reason of they're being members of Dáil Eireann and by reason of the necessity to ensure an orderly wind-down of the representative functions. In addition various property, services and facilities are provided to some outgoing members of Dáil Éireann who are Ministers or other office holders and are provided to them by reason of their office. The aforesaid property services and facilities are not made available to any of the aforesaid candidates for the purpose of electioneering during the course of the forthcoming Dáil election.” (Emphasis added).

On expanding upon their reply, it is said that the applicant’s argument is predicated on a misinterpretation of the relevant provisions, which provisions do not have and are not intended to have the effect as argued for on behalf of Mr. Kelly. When properly interpreted and when applied in this corrected way, the said provisions do not give rise to any inequality, unfairness or discrimination. This because, irrespective of being an incumbent or not, the statutory limits on election expenditure apply equally to each prospective candidate who is running in any given constituency in an election captured by the said provisions.

Members entitlements:

7. As part of the evidence in this case there is exhibited, following correspondence with the office of the Clerk of the Dáil, an enclosure consisting of ten documents which contains a detailed description of the services, facilities, supports and allowances which every member of the House is entitled to. Insofar as is material to the issues under consideration in this case, the following are the more important services and facilities so available:-

(i) Each member is entitled to office accommodation, furniture and office equipment and can continue to use such facilities up to polling day and may “continue to use it (sic) if they are re-elected.” An outgoing member who is not re-elected or who retires from the Dáil must surrender his accommodation and equipment.

(ii) A secretarial assistant, recruited individually or by the party, and whether based in Leinster House or in a constituency, is provided for.

(iii) Each month every member is entitled to 1750 prepaid envelopes with each party whip getting an additional ten envelopes per month per member of his party. Postal entitlements are available but according to the relevant enclosure, these cease on the dissolution of the Dáil.

(iv) Once a member has signed the Roll he or she is entitled to telephone facilities which remain available up to the election polling day and continue if the member is re-elected. In addition to these facilities which are located in Leinster House, members are also entitled to a constituency telephone allowance which is intended to offset their expenses when telephoning from outside the House on parliamentary and constituency business. Moreover a digital hands free telephone which can support several lines is also provided.

(v) All telephone calls from the Leinster House complex are free. Members can also send tele messages up to a value of £750 per annum.

(vi) Photocopying facilities are provided in a specified location, each member being entitled to 500 photocopies per month.

(vii) Printing facilities are allocated on a party basis.

(viii) Two personal computers and printers are supplied to all non office holding deputies for the duration of the Dáil, with an option as to location being either in their Oireachtas Office or in their local constituency office. These systems must be returned if the outgoing Deputy retires or fails to be re-elected.

(ix) Every member has an e-mail address.

(x) Under the hearing of “general office equipment and stationery supplies”, there is set out what a member is entitled to and also an indication that all such equipment and supplies cease upon the dissolution of the Dáil.

(xi) In terms of media service there is a Public Relations Office which provides a public relations service for both Houses. This service covers media monitoring, press releases, business of the day, committee scheduling and other information.

(xii) Each member is of course entitled to a salary, travel and overnight allowance, expense allowance, constituency travel allowance, and a pension and termination allowance. Payment of salary commences as and from signing the Roll of Members. It ceases at the date of dissolution but to cover the period from that date to the date of polling an allowance equal to ¹/₁₈ of yearly salary is paid. The travel and overnight allowance also ceases on the dissolution. However, an outgoing member is entitled to reclaim travel expenses for one travel journey made within 3 days of dissolution between Dublin and his constituency or other normal place of residence, and

(xiii) Other allowances including a constituency office grant and a secretarial allowance, are also specified in this particular enclosure, as well as a miscellaneous expense allowance.

The above is not intended to be a verbatim or conclusive account of what every member is entitled to. It is and is intended only to be, in summary form, a brief outline of the more material services and allowances which are relevant to the issues in this case.

Lay evidence:

8. Mr. Kelly in a number of affidavits made by him in support of the orders which he prays for, states that in his belief there has been for several years a widespread and unrestrained use by outgoing members of both Houses of the aforesaid services, facilities and privileges. These of course are provided for free of charge out of public funds. His sworn belief is that such use is now so routine, so well established and so well known that formal or factual proof thereof is unnecessary. Indeed at par. 8 of his Affidavit dated on the 19th of April, he doubted whether this view on his part would be disputed by the respondents. In fact no such challenging evidence has been produced. He also avers that since this has been the practice up to the present election, there is no reason to believe that it will not continue. In truth, he says that given the limitation on expenditure there is a high probably or at least a grave likelihood that such use in fact will not only continue but will increase.

9. In support of the factual basis of his claim which of necessity must exist to ground this application, Mr. Kelly refers to a number of examples which underpins this proposition. In addition, affidavits have been sworn by a Mr. Malcolm Byrne, by the applicant’s brother Mr. Alan Kelly, and by a Mr. Ben Minogue, in which all three have offered specific and definite examples of where a variety of the services above described have been used by different candidates in the election process and for the purposes of electioneering. Given this evidence and the lack of challenge, it is not necessary in my view to recite in any more detail what is contained in these affidavits. It is sufficient for me to state, that in my opinion in this respect there is available both adequate and acceptable material to establish the factual foundation for the allegations made by and on behalf of the applicant. It would be invidious on my part to identify any particular candidate or any particular party in this regard. The broad argument is made that the use of such facilities transgress party lines and indeed also applies to non-party candidates. I accept this argument, as made, and the generalised trust of the evidence in support of it.

In this context I have not overlooked the enclosure mentioned at par. 7 above, (and to the number of references to certain facilities ceasing on dissolution), or the letters dated the 17th day of April and the 19th day of April, both of 2002, respectively from Mr. Kieran Coughlan, the Clerk of the Dáil and Ms. Deidre Lane the Clerk of the Seanad. These letters have been referred to as information notes, their purpose being to inform outgoing members of what the position is, inter alia, with regard to certain facilities and services between the dissolution of the present Dáil and the summoning of the 29th Dáil. Such information is undoubtedly helpful and useful as of course the enclosure is, but neither can be more than a re-statement of what the position is, as provided for by the relevant statutory provisions and the rules and regulations made thereunder.

10. On the technical side of the evidence Dr. Richard Sinnott, an Associate Professor in the Department of Politics and Institute for the Study of Social Change, UCD, made a number of affidavits on behalf Mr. Kelly. Having identified the purpose of such evidence as being “to examine the implications and probable effects of the inequality in the resources available to incumbent and non-incumbent candidates”, which inequality arises it is claimed, from a mixture of the exemptions contained in paragraph 2 (a) and (c) of the aforesaid Schedule and from the imposition of limits as specified in section 32 (1), the Professor then goes on to express a number of propositions, which in concise terms can I think be summarised as follows:-

(a) The Irish electoral system of PR - STV is primarily a candidate based system and accordingly ‘equality between individual candidates’ is a key requirement of this system.

(b) That there exists such a emphasis on candidates, is supported by a study which shows that in the seven general elections between 1977 and 1992 a clear plurality of voters (approximately 40%) gave “choosing a candidate to look after the needs of the constituency” as the most important determinative factor in their choice of candidate.

(c) That incumbents enjoy a built in advantage over non-incumbents when it comes to competing for votes. That this impression is factually based is evident from a statistical study developed and presented by Dr. Michael O’Kelly from U.C.D. in 2002. His model demonstrates that incumbency has a substantial positive effect on the size of a candidate’s first preference even when other important and relevant variables have been taken into account. As is clear from this study the predicted advantage of being an outgoing candidate in a succeeding general election, is 3.2 percentage points, which in a typical constituency with a total valid poll of say 43,000, converts to an incumbent an accrued benefit of about 1400 votes.

(d) The implications of such a disadvantage on a newcomer have been examined by an analysis, in the five elections since November 1982, of the margin of victory where an incumbent beats a non-incumbent for the last seat. This occurred on 93 occasions in almost as many constituencies. In 47 of these cases the margin by which the outgoing deputy was re-elected was less than the estimated advantage and thus the incumbency benefit was crucial in determining the outcome in such situations.

(e) The electoral consequence of such an advantage can also be looked at by comparing the margin of victory with the number of non-transferable votes arising on the count in which the outgoing member was re-elected. In a statistical survey produced by Dr. Sinnott it is clear that in a number of seats the non-transferable vote, on the count which elected the incumbent, exceeded the marginal of victory of that incumbent, which again serves to illustrate the very close margins by which many of the incumbent versus non-incumbent contests in Irish elections are decided.

(f) In the mobilisation of voters, certainly in the present but also in the recent past, the use of telephone contact is particularly strong and accordingly the unrestricted availability of such a method of communication is evidently of importance to those seeking election.

(g) Though it cannot be said that the advantage which an outgoing deputy enjoys over a non-outgoing candidate, is exclusive to the exemption being queried in this case, nevertheless such an advantage, no matter how based, should not in Doctor Sinnott’s view, be compounded by a legislative provision which allows incumbents access to resources which they are not obliged to include in their declaration of election expenses. When one adds to this the monetary limit which applies to all candidates including the applicant, it is clear in the Professor’s belief and he so submits, that this so-called statutory exemption coupled with the limitation on expenditure, results in and creates a profound unfairness which is highly detrimental to a non-incumbent; and lastly he says:-

(h) That there are no good reasons to justify this inequality and discrimination and no practical or administrative reason or reasons based on convenience why such incumbents are not obliged to place a commercial price on the services and facilities available to them and return the same for the purposes of calculating their election expenses.

In conclusion at par. 11 of his affidavit sworn on the 19th of April, 2002, the Professor contends that the impugned provisions are unfair and discriminatory.

11. Dr. Michael Marsh, Associate Professor of Political Science and Head of that Department at Trinity College Dublin, has sworn evidence on behalf of the Minister and the Attorney General to correspond with that given by Dr. Sinnott. Issue is taken by Professor Marsh with some of the opinions, statements and conclusions advanced by his colleague Professor Sinnott, but both scientists are in agreement, that even allowing for political experience, candidate gender, familial connection and party affiliations, it is correct to say that at election time incumbents do better than non-outgoing candidates and that this advantage could be said to be about 1400 votes. Some of the points on which they differ are of little significance, as for example where Dr. Marsh says that there is no systematic evidence to show that the advantage suffered by an outgoing deputy is due to the services being impugned in these proceedings; whereas of course Dr. Sinnott, largely agrees with this when he made the point that the reasons for such advantage are much wider than simply the facilities referred to in this case. There are however at least two areas where the departure between them is of interest. In Dr. Marsh’s view there is no evidence to indicate that the acknowledged advantage of an incumbent has changed greatly over the years. In support he refers to a study carried out by Dr. Gallagher which shows that there is no overall distinct trend of variation, in the percentage of incumbents who have lost their seats to their running mates at any of the national elections between 1948 and 1997. In response it is claimed firstly, that without question the facilities presently available to members of the Houses of the Oireachtas are greatly more extensive than those previously available, secondly, that because this study is restricted to running mates one cannot therefore extrapolate in any broader way from the results as presented, and thirdly, which in my view is of significance, is the opinion of Dr. Sinnott, and this he claims is a vital factor, that prior to this election any non-incumbent could incur an unlimited amount of expenditure, and thereby neutralise or at least hope to neutralise the advantage which the incumbent enjoys by reason of the availability to him of the impugned services. This, a newcomer can no longer do given the limitation referred to in section 32 (1).

The second point of departure is a view that even if outgoing candidates use for election purposes the facilities in question, there is no evidence (the literature being inconclusive, it is said) to show, that first time candidates would improve their chances of election success by increasing their expenditure, unless the additional lay out was very substantial indeed. Dr. Sinnott disagrees rather forcibly with Professor Marsh’s interpretation of the available literature. The former supports his reading of the material by exhibiting extracts from five publications ranging from a date in June 1998 to a date in February 1991 which he alleges proves that there is a significant body of opinion in favour of a conclusion that the expenditure of money has a substantial positive effect on a candidate’s chances of being successfully elected.

12. In view of the submissions made on behalf of the Attorney General which are hereinafter referred to, it is I think not appropriate at this point of the Court’s judgment, to evaluate the respective evidential contributions of either Professor Sinnott or Professor Marsh ot to try and resolve any difference of opinion between them. Such an exercise may not be necessary if the first submission made on behalf of the respondents is accepted by this Court. Hence for the present a deferment of any further consideration of this scientific evidence.

13. Submissions

On behalf of the applicant it is claimed that the impugned provisions of the Schedule to the Electoral Act 1997, as inserted by a combination of section 50 (k) and (v) of the Electoral (Amendment) Act 2001, are unfair and unjust and constitute an inequality of treatment which renders the said provisions incompatible with several Articles of the Constitution including Articles 5, 6, 16.1, 40.1 and 40.3.1.

The evidence of the lay witnesses is relied upon as showing the past and present use by outgoing members at election time of the facilities above referred to. The evidence of Dr. Sinnott should be preferred to that of Professor Marsh where there is any conflict between them, and certainly it is submitted that the exhibited published literature demonstrates clearly the value of expenditure at election time. It is suggested that both the relevant provisions in themselves, and their application in practise creates an inequality as between candidates and results in a basic unfairness attaching to individuals like the applicant. In support several authorities were cited the most important of which where McKenna -v- An Taoiseach & Ors (NO.2) (1995) 2 IR 10, O’Reilly -v- The Minister for the Environment and the Attorney General (1986) IR 143, Coughlan -v- the Broadcasting Complaints Commission, RTE and the Attorney General (2000) 3 IR 1 and Redmond -v- the Minister for the Environment Ireland and the Attorney General U/R, H/C, 321/7/2001.

14. On behalf of the Attorney General it is submitted that the interpretation sought to be placed on the provisions under attack by the applicant is misguided and his views as to the meaning and intent of the relevant paragraphs are incorrect. It is claimed that the property, services and facilities which are made available to members of Seanad Éireann, Dáil Éireann, and the European Parliament, are so made available to such persons by virtue of their membership of such bodies. In relation to deputies in Dáil Éireann, the Oireachtas has recognised that such persons not only have a parliamentary role but also a representative role. It is to cover both roles that the entitlements referred to are provided. It is argued that since the role of the representative continues, following the dissolution of the Dáil up to polling date, it is necessary that the aforesaid services and facilities should still be available to such persons, this so that they may continue to discharge and perform that role. However no individual is entitled to utilise, at any time, any of these facilities for election activity. Hence the misapprehension as to the purpose and effect of the impugned provisions which it is claimed the applicant has. Accordingly it is the view of the Minister and the Attorney General that the provisions which make available such payments, services, facilities and property, must be construed in a manner which results an absolute ban on their use for election purposes. Likewise it would then follow that par. 2 (a) and (c) of the Schedule must equally be so construed.

15. In support of these submissions it is pointed out that the provisions in question enjoy the presumption of constitutionality and that even though such provisions may be capable of an unconstitutional interpretation they are equally capable of a constitutional one. In such circumstances it is claimed that this interpretation, in accordance with well established constitutional jurisprudence, should be the preferred one. Reliance is placed on In re Article 26 and the Offences Against the State (Amendment) Bill (1940) IR 470, McDonnell -v- Bord na gCon and Anor. (1965) IR 217, East Donegal co-operative -v- Attorney General (1970) IR 317 and Purcell -v- Attorney General & Anor. (1995) 3 IR 287.

16. Relevant Articles of the Constitution

Article 5 of the Constitution reads:-

“Ireland is a sovereign, independent, democratic state.”

Article 6 is in the following form:-

1. “All powers of Government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rules of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.

2. These powers of Government are exercisable only by or on the authority of the organs of State established by this Constitution.

Article 16 reads:-

1.

1 “Every citizen without distinction of sex who has reached the age of twenty one years, and who is not placed under disability or incapacity by this (constitution or by law, shall be eligible for membership of Dáil Éireann.

2 i All citizens, and

ii such other persons in the State as may be determined by law,

without distinction of sex who have reached the age of 18 years who are not disqualified by law and comply with the provisions of the law relating to the election of members of Dáil Éireann, shall have the right to vote at an election for members of Dáil Éireann.

3 No law shall be enacted placing any citizen under disability or incapacity for membership of Dáil Éireann on the ground of sex or disqualifying any citizen or other person from voting at an election from members of Dáil Éireann on that ground.

4 ......

2 ......

3 ......

4 ......

5 ......

6 ......

2. Subject to the foregoing provisions of this Article, elections for membership of Dáil Éireann, including the filling of casual vacancies, shall be regulated in accordance with law.”

Article 40 reads:-

1. “All citizens shall, as human persons, be held equal before the law.

This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.

2. ......

3.

1 The State guarantees in its laws to respect, and, as far as practicable, by its laws, to defend and vindicate the personal rights of the citizen.

2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

3 ......

17. The legislative framework.

Part IV of the Electoral Act 1997, which is headed “Disclosure of Donations”, specifies what are and what are not “donations”. This for the purposes of what ought to be included in the statutory required statement which must be sent not later than the 31st day of January of each year, by every affected person, to the Public Office Commission. This Commission was established by section 21 of the Ethics in Public Office Act 1995, and since the enactment of section 2 of the Standards in Public Office Act, 2001, is now known as the “Standards in Public Office Commission”. Under sec. 22 (2) (b) of the 1997 Act there is specified five separate categories of what I might loosely describe as activities which are deemed not to be donations for the aforesaid purpose. Two further categories were later added but these are of no significance to this case. Section 31, which is in Part V of the same Act, which part is headed “Expenditure by Political Parties and Candidates at Dáil Elections and European Elections” sets out, in like form, what are and are not election expenses in any National or European election. This for the purpose of complying with the statutory limits, imposed for the first time in 1997, and also for the purpose of furnishing to the said Commission, in accordance with the mandatory provisions of section 36 thereof, a statement in relation to election expenses. Under the original section 31 (1) (b), there was set out six categories of expenses which were not deemed to be election expenses for the purposes of Part V . That section was amended in part by the Electoral Act 1998 but in a much more significant way by the Electoral (Amendment) Act of 2001. Section 32 of the same Act placed a cap on the expenditure which a candidate could incur during an election. The amount varied depending on whether the constituency was a three, four or five seat constituency. Again, an amendment to these limits by way of increase followed the 2001 Act. In their amended form the relevant provisions of the 1997 Act are as follows:-

“Sec 22 (2) For the purposes of this Part -

(a)

(b) each of the following shall be deemed not to be a donation -

(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 moneys provided by an institution of the European Communities or other inter governmental organisation to which the State is a party (whether pursuant to this Act, the Oireachtas (Allowances to Members) Acts 1938 to 1996, the Ministerial and Parliamentary Offices Acts 1938 to 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 to 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 pubic 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,

(iii) ....

(iv) .....

(v) ....

(vi) ....

(vii) .......................................................................................”

Section 31 (1) (a) reads:-

“Sec 31 (1) (a) In this Part ‘election expenses’ means all expenses falling within paragraph (b) incurred in the provision of property, goods or services for use at an election during the period referred to in subsection (3) in order ------

(i) .................

(ii) ................

(iii) ...............,

(b) The expenses mentioned in the foregoing definition of ‘election expenses’ shall be those, and only those, set out in the Schedule to this Act.”

SCHEDULE

“1. The following are the expenses referred to in sections 31 (1) (b) and 52 (1) (b):

(a) Advertising (whatever the medium used).

Expenses in respect of such advertising include agency fees, design costs and other costs incurred in connection with preparing, producing, distributing or otherwise disseminating such advertising.

(b) Publicity.

Expenses in respect of that matter include expenses incurred in respect of party political broadcasts, the provision of any services of facilities in connection with press conferences of other dealings with the media, media advice and training and photography.

(c) Election posters.

Expenses in respect of such material include the costs of the design, production, printing, erection and removal of election posters.

(d) Other election material.

Expenses in respect of such material include the design, production, printing and disseminating of such material (other than posters) including canvass cards, election leaflets, election manifestos, newsletters and any other promotional election material.

(e) Office and stationery.

Expenses respect of those matters include costs incurred in the rental or use of an office premises or meeting rooms for election purposes (other than for the purposes of annual or other party conferences) and the costs of hearing, electricity, insurance, purchase or rental of office equipment, telephone, stationery and postage.

(a) Transport and travel

Expenses in respect of those matters include expenses incurred on transport and travel (by any means), petrol and diesel, rental or use of campaign vehicles, rental or use of vehicles for transport of voters on polling date, accommodation costs, taxi and hackney services and courier services.

(a) Market Research.

Expenses in respect of that matter include expenses incurred in the taking of an opinion poll or other similar survey relating to an election within the period of 60 days before polling day at the election by or on behalf of a political party, a political group or a candidate at the election.

(b) Campaign workers.

Expenses in respect of that matter include payments to campaign workers, insurance and other costs.”

“2. For the avoidance of doubt, nothing in paragraph 1 of this Schedule extends to -

(a) any of the matters referred to in subparagraphs (i) to (v) of section 22 (2) (b) or,

(b) expenses incurred in the provisions 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 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 candidate, 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 section 13 of the Act of 1997 or section 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 disbursed by any individual out of the individual’s own resources for nay minor expenses (not exceeding £100 in any one payment) lawfully incurred in relation to the election if the said sum is not repaid to the person.’.”

The only other provision of the 1997 Act which is relevant and which has been referred to previously is section 32 (1) (a), which places a statutory maximum of a candidate’s expenditure at election time.

Decision:

18. There is no doubt but that this Court should not engage on any question as to the possible invalidity of an Act of the Oireachtas unless for the underlying decision it is essential to so do. This concept of judicial self restraint has been established by a variety of cases over several decades. See Buckley -v- Attorney General ...1950) IR 67, the State (P. Woods) -v- Attorney General (1969) IR 385 and McDaid -v- Sheehy (1991) 1 IR 1. Consequently I must first consider whether the provisions in issue are capable of the statutory interpretation sought to be placed on them by the respondents. If they are and if this results in a constitutional construction than this Court should not go on to consider whether either par. 2 (a) on 2 (c) of the Schedule is invalid having regard to the relevant Articles of the Constitution. It is only if it is not possible to ascribe to the said provisions the interpretation contended for, that this Court should then go on and consider the question of constitutionality.

19. With every Act of the Oireachtas pasted since 1939, there is a presumption that such Act is constitutional unless and until the contrary is clearly established. The onus of so establishing is evidently on he who asserts. In Pigs Marketing Board -v- Donnelly (1939) IR 413 Hannah J. said:-

“When the Court has to consider the constitutionality of a law it must, in the first place, be accepted as an axiom that a law passed by the Oireachtas, the elected representatives of the people, is presumed to be constitutional unless and until the country is clearly established.”

In re Article 26 in the Offences Against the State (Amendment) Bill (1940) IR 470, the Supreme Court said:-

“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, we are of opinion, as a matter of construction, that such repugnancy must be clearly established.”

There are several other cases from both the High Court and the Supreme Court which reaffirm and restate these principles. Ó Dálaigh CJ in Ryan -v- A.G. (1965) IR 294 @ 353 said:-

“There is a presumption that a statute is constituted and the onus of showing that it is unconstitutional rests on the Plaintiff who attacks it.”

In Goodman International -v- Hamilton (No.1) (1992) 2 IR 542 CJ Finlay repeated what the Supreme Court in Buckley -v- A.G. (1950) IR 67 gave as the foundation for this presumption namely the respect which one organ of Government shows to another.

20. As a direct consequence of this respect and thus of the presumption, there exists, in the canons of reviewing the Constitution, a rule of construction sometimes referred to as the “double construction” rule. It was firmly enunciated in this jurisdiction by Mr. Justice Walsh in McDonald -v- Born na Gcon (1965) IR 217 at p. 239 where he stated:-

“The Greyhound Industry Act of 1958, 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 provision 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.”

See also the State (Quinn) -v- Ryan (1965) IR 170, the People (Attorney General) -v- Conmey (1975) IR 341, R -v- R (1984) IR 296 and Hegarty -v- O’Loughran (1990) 1 IR 148. Though now fully established as a principle of constitutional interpretation there are of course clearly self evident constraints in which the principle may operate. These were set down by the Supreme Court in East Donegal Co-operative -v- the Attorney General (1970) IR 317 where at p. 341 Mr. Justice Walsh said:-

“Therefore, an Act of the Oireachtas, or any provision thereof, will not be declared to be invalid where it is possible to construe it in accordance with the Constitution: and it is not only a question of preferring a constitutional construction to one which would be unconstitutional where they both may appear to be open but it also means that an interpretation favouring the validity of an Act should be given in cases of doubt. It must be added, of course, that interpretation or construction of an Act or any provision thereof and conformably with the Constitution cannot be pushed to the point where the interpretation would result in the substitution of the legislative provision by another provision with a different context, as that would be to usurp the functions of the Oireachtas. In seeking to reach an interpretation or construction in accordance with the Constitution, a statutory provision which is clear and unambiguous cannot be given an opposite meaning. At the same time, however, the presumption of Constitutionality carries with it not only the presumption that the Constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from these principles would be restrained and corrected by the Courts.”

See also Doyle -v- An Taoiseach (1986) ILRM p. 693.

So, in approaching the construction of par. 2 (a) and 2 (c), I must apply the aforesaid presumption as well as the double construction rule, but I must also remain conscious of how and in what way that rule is circumscribed.

21. Insofar as the origin, whether statutory or derivative, of the source of the payments, services and facilities available to members of either House, has been chased in these proceedings, it would appear that the current base is contained in the Oireachtas (Allowances to Members) Act 1962 as subsequently amended. Under section 2 of that Act phone calls from Leinster House are free. Postal services are also free but in its original wording such facilities were only so. if these arose “out of the member’s parliamentary duties”. This qualification was deleted, as recently as July 2001, by virtue of the passing of section 33 of the Ministerial, Parliamentary and Judicial Offices and Oireachtas Members (Miscellaneous Provisions) Act 2001. Secretarial facilities continue to be available “in connection with the member’s parliamentary duties”.

In passing at this point, I should say that I have come to no conclusion as to what precisely is included in the phrase “member’s parliamentary duties”. Mr. Rodgers SC argues that such duties may very well include acts, deeds or activities, carried out or performed after dissolution day but which nonetheless could have a direct, or at least an indirect benefit to a candidate at election time. At a minimum he argues that even if it was possible, which he doubts, to distinguish at election time, parliamentary duties from electioneering, or to exempt from the former duties all electoral activity, it is his view that such matters are so interrelated and so intermingled that it would be very difficult if not impossible to rigidly separate them. On the other hand Mr. Fitzsimons SC, argues that as a matter of principle the performance of a member’s parliamentary duty could not involve any activity normally appropriate to or associated with electioneering. Which of these opposing contentions is correct is an issue the resolution of which is not in my view necessary for this case. In itself the question raises very important matters of direct concern to parliamentarians. Evidence on the point would be essential as would be detailed submissions on the statutory and constitutional implications. Having identified the matters which must be decided in this case, it is not in my view either essential or desirable to embark upon any detailed consideration of what a parliamentarian's duties are, or in particular, what that phrase is intended to mean under section 2 of the 1962 Act as amended.

22. In any event in addition to this section of the 1962 Act, as amended, the Minister for Finance in the context of what services and facilities are available to a member of either House, has made certain regulations under the powers conferred on him by the Oireachtas (Allowances to Members) and Ministerial and Parliamentary Offices (Amendment) Act, 1992. Two such resulting statutory instruments were referred to, the first being S.I. 99/1998 and the second S.I. 388/2001. Nothing of significance turns on either regulation as all material matters have already being dealt with, under the principle statutory provisions above mentioned.

23. From the evidence given in this case, as to the long established and continuing practice, of members of both Houses utilising the available services and facilities at election time, it is a reasonable inference to make that these self same persons, who (together with the President) constitute the Oireachtas and therefore the legislature of this Country, have been and remain collectively of the view that the practice complained of is not contrary to law and that such support systems are not confined to their role as “parliamentarians” or solely as members of an outgoing Dail. I cannot believe that any, and certainly not any great or significant number of such members, make a definite decision, that as and from dissolution date, the aforesaid services and facilities can be used only in the orderly wind down of their representative role in the last Dail. Such members would have to be actively conscious of this distinction knowing that any unauthorised use could attract sanctions. Up to now, as the evidence clearly shows, the practice does not give any support that this has been or is the view of these legislators. In fact, the interpretative view offered by the respondents mean, that any and every member of either House and of the European Parliament, who at election time for election purposes, use anyone or more of the facilities above mentioned, has been and is in breach of the law. I suspect, though this is comment, that many would be highly surprised at being so informed. Indeed such surprise might not be confined to the members. In its’ highly detailed and yet clearly readably Guidelines on the Election, the Commission would also seem to hold this view. Under section “D” which has a hearing “What are not election expenses”, at par. 2.26, the items and matters directly in dispute in this case are stated as being so excluded.

In any event, what the practice has been or what the individual views of members are, no matter how significant numerically or in seniority these might be, can of course have no hearing as a means of interpreting the provisions in question. This task has to be dealt with in accordance with the principles above mentioned.

24. In my opinion the amendment affected by the Ministerial, Parliamentary and Judicial Offices and Oireachtas Members (Miscellaneous Provisions) Act, 2001 is of importance in that with regard to postal facilities the Oireachtas decided to remove the restriction “arising out of member’s parliamentary duties.” By so doing it clearly indicated in my view an intention that the use of such facilities should not henceforth be so restricted. A similar view must therefore be applied to phone calls. Apart from these consequences, it seems to me that when dealing with like provisions which can properly be considered in a similar vein, there would be no justification for this Court in imposing, by way of implication, a restriction comparable to that which was deleted in July of last year. Unless, therefore by the express wording of the provisions one can readily see an intention to limit, I don’t believe that I should import into the legislation any such restrictions.

25. When a Court is asked to interpret or construe a statute, its stated objective is and must be to discover “the intention of the legislature”. The ultimate aim of every primary approach to the interpretation of legislation is to identify the will of parliament. This obligation equally applies even when it is necessary to invoke any of the secondary aids to interpretation. If the intention of the Oireachtas can with confidence be readily found and identified, then the Courts in my view are bound to ascribe to the words in question that and only that meaning. Having done so part of the Court’s function is at an end..

26. Section 31 (1) (a) of the 1997 Act as amended, declares that “election expenses”, means “all expenses falling within paragraph (b) “. Paragraph (b) tells us that these “election expenses” shall be those and only those set out in the Schedule to the Act.

So these provisions are quite clear and in my opinion permit of no ambiguity in respect of what they mean. The election expenses are those which are specified and no others.

27. The Schedule as we know has two paragraphs. Par. 1 commences with the words “The following are the expenses referred to in sections 31 (1) (b) and ....” There then follows eight categories identifying what these expenses are. This definition is particularised by establishing a linkage between the expenses and the matters in respect of which these may be incurred. Most of such matters and activities which are covered include a great deal of what any prospective candidate would want in his or her armoury when pursing an election campaign. Election cards, posters, leaflets, manifestos and newsletters are included as is the provision of office accommodation and the cost of servicing that accommodation. Publicity is covered in sub-paragraph (b) with transport and travel and market research being referred to at sub-pargraph (f) and (g), respectively. So, by a combination of section 31 (1) (a) and (b), and the Schedule to the 1997 Act, it seems I think quite clear that if any expenditure incurred at election time, comes within what is specified in par. 1 of the Schedule, then that expenditure is deemed to be an election expense within the Act. If the Schedule had ended with par. 1 and had omitted any reference to par. 2, it would in my view have followed from the plain and ordinary meaning of the provisions that any of the services and facilities which are available to and used by members of the Oireachtas for electioneering and which are described in par. 1, would have to be captured by the definition of “election expenses”. That this was also the view of the Oireachtas is I am convinced borne out by the enactment of paragraph 2.

28. This last mentioned paragraph commences with the words “For the avoidance of doubt, nothing in paragraph. 1 of the Schedule extends to ....” The words “For the avoidance of doubt”, convey to me nothing of substance which is not otherwise in the paragraph. If the opening sentence did not have these words and simply read “Nothing in paragraph 1 of the Schedule extends to ....” the meaning in my opinion would precisely be the same. However if I am wrong in this and if such words should in their own right have on added value to the paragraph, then in my view the meaning which should be given to them, is one to the effect that lest there be any doubt as to whether the next following recited matters and expenses are included in the definition of “election expenses”, then those doubts are being thereby removed. Accordingly I am quite satisfied at the true meaning of par. 2, a meaning which I am convinced was intended by the Oireachtas, which is to exempt from election expenses the matters in sub-paragraphs (a) to (g) inclusive of the said paragraph 2. Otherwise why would the Oireachtas insert par. 2 at all? Its inclusion would have no purpose. I believe that from the scheme of section 31 and the Schedule, the legislature was firmly of the opinion that the matters and expenses within paragraph 2 (a) to (g) inclusive, would have been captured by par. 1, if it had not made this contrary provision. So with deliberation and in order to achieve an intended result, it sought to and in my view did achieve their collective exclusion.

29. This is therefore my opinion as to how paragraph 2 (a) and (c) of the Schedule must be interpreted. Accordingly, I must reject the alternative construction as advanced on behalf of the respondents. I do not believe that such an interpretation is reasonably open and certainly is one which is not available unless this Court should incorporate, by way of additive features, the limitation which the Minister and the Attorney General seek to have read into the provisions. I feel that it is not possible for the Court to so do. If it did it would be to rewrite the provisions and to put in place a result which is diametrically opposed to what was intended. Such an exercise would not be an example of the “double construction rule”, but instead would be to make this organ of government a defier of another organ of government. Of course this I should not do. Consequently I believe that the only interpretation available in respect of pargraph 2 (a) and (c) of the schedule to the 1997 Act, is that as advanced by and argued for on behalf the applicant.

30. Having rejected, as I have, the respondent’s interpretation of the aforesaid provisions, it is now necessary, in light of the construction which I have placed on them, to consider their validity having regard to the relevant provisions of the Constitution. I do so firstly in the context of the equality provision as contained in Article 40.1 of the Constitution the text of which is set out at par.16 - above. This Article was discussed by the Supreme Court in the case of the State (Nicolaou) -v- An Bord Uchtala (1966) IR 567 and again by that Court in Quinn’s Supermarket Limited & Anor. -v- the Attorney General & Ors. (1972) IR 1. From these cases and in particular from Quinn’s case, the guarantee of equality as contained in the Article is a guarantee given to individuals “as human persons” and is related directly to their dignity as human beings. A person’s “human attributes” and their ethnic, racial, social and religious backgrounds have all been identified to illustrate that this “guarantee refers to human persons for what they are in themselves rather than to any lawful activity, trades or pursuits which they may engage in or follow”. See Walsh J. at p. 13 of the judgment. A like and similar tone was taken up Mr. Justice Kenny at p. 31 where he refers to the “concept of human personality”. This view on the scope of Article 40 section 1 was originally thought to have placed an immovable restriction on its availability to support a constitutional challenge to a piece of legislation like an Electoral Act. A good example is the case of the O’Reilly -v- The Minister for the Environment and the Attorney General (1986) IR 143. In that case the plaintiff sought a declaration that section 15 of the Electoral Act 1963, whereby candidates names on ballot papers were listed in alphabetical order, was contrary to certain provisions of the Constitution. In the High Court, though reserving their right to argue the point on appeal, Mr. O’Reilly’s Counsel conceded and the trial judge, Mr. Justice Murphy seemed to readily accept, that the then case law on Article 40.1 rendered that section beyond the reach of the plaintiff in his constitutional challenge. See Casey, 3rd ed. Constitutional Law in Ireland, at p. 450, on where this section was and where it might now be going.

31. However this historical perspective cannot of course now prevail in view of several recent decisions of both the Supreme Court and the High Court. First and perhaps the most significant is McKenna -v- An Taoiseach & Ors (No. 2) (1995) 2 IR 10. In that case Dáil Éireann voted £500,000 to the Minister for Equality and Law Reform, to be used for a publicity campaign to encourage a “yes” vote in the then forthcoming referendum on the removal of the Constitutional prohibition on Divorce. The Plaintiff sought an injunction to restrain the use of public funds to promote a “yes” vote or alternatively sought the provision out of public funds of a similar amount to promote “a no” vote. In the High Court Keane (J), as he then was, dismissed the claim. On appeal by majority the Supreme Court held that the expending of public monies in the context of a referendum to promote a particular result was a breach of constitutional law. At p. 42 of the report Hamilton CJ said:-

“the use by the Government of public funds to fund a campaign designed to influence the voters in favour of a “yes” vote is an interference with the democratic process and the constitutional process for the amendment of the Constitution and infringes the concept of equality which is fundamental to the democratic nature of the State.”

O’Flaherty J., on the page following also refers to the equality provision. He said:-

“However the Government must stop short of spending public money in favour of one side which has the consequence of being to the detriment of those opposed to the Constitutional amendment.

To spend money in this way beaches the equality rights of the citizen enshrined in the Constitution as well as having the effect of putting the voting rights of one class of citizen (those in favour of the change) above those of another class of citizen (those against). The public purse must not be extended to espouse a point of view which may be anathema to certain citizens who of necessity have contributed to it. No-one would suggest that a Government is entitled to devote money from the exchequer in a direct manner in the course of a general election to secure its re-election. (I leave aside legislative enactments which it may have helped to bring about with the outcome of an election in mind). The position of a referendum is not any different.

I should think it bordering on the self-evident that in a democracy such as is enshrined in our Constitution (which is not exclusively a parliamentary democracy: it has elements of pelebiciary democracy): it is impermissible for the Government to spend public money in the course of a referendum campaign to benefit one side rather than the other.”

32. Mrs. Justice Denham, in the same case was quite satisfied that the committal of such monies for such promotional purposes infringed at least three constitutional rights, being, the right of equality, the right to freedom of expression and the right to a democratic process in referenda. Having quoted Article 40.1, at p. 52 of the report she said:-

“This recognises the equality of citizens. It also requires the organs of Government in the execution of their powers to have due regard to the right of equality. The citizen has the right to be treated equally. ....To fund one side of a campaign in a referendum as to enable media coverage and communications to promote a specific outcome, is to treat unequally those who believe to the contrary whether they be a majority or a minority. For the Government to fund one side of the campaign is to treat unequally those citizens who hold the opposite view.”

She then quoted at length from the judgment of Budd J. in O’Dovoan -v- the Attorney General (1961) IR 114 and there after continued:-

“The spirit and concept of equality applies to the process of a referendum. There is a right to equal treatment in a political process. It is a breach of the concept and spirit of the constitutional right to equality for the Government to spend public monies in funding a campaign to advocate a specific result in a referendum.”

33. In circumstances where the principle at issue was not wholly unrelated to the subject matter of present claim, the Courts have also considered this equality provision in the case of Coughlan -v- the Broadcasting Complaints Commission, & Ors, (2000) 3 IR p. 1. In that case the applicant alleged that RTE was in breach of section 18 of the Broadcasting Act 1960 in giving a total of 42.5 minutes of broadcasting time to those who favoured a “yes” vote in a Constitutional Referendum whilst permitted only a period of 10 minutes to those who favoured a “no” vote. In the High Court Mr. Justice Carney specifically applied Article 40.1 of the Constitution and said:-

“I am satisfied that the second respondents’ said approach has resulted in inequality amounting to unconstitutional unfairness which would not have arisen had their starting point being to afford equality to each side of the argument to which there could only be “yes” or “no” answer.”

The Supreme Court dismissed an appeal by RTE and in several passages from the individual judgments of the Court, there are repeated reference to equality and equal treatment. One extract by way of example is sufficient. At p. 32 Denham J. said:-

“The decision as to whether or not there should be a party political broadcast is for the second respondent. The decision must be arrived at in the context of equality and fairness. It will depend on the circumstances. It might be necessary to decide to hold no party political broadcasts in a referendum campaign.”

34. And finally, once again this principle in Article 40.1 was heavily relied upon by Mr. Justice Herbert in giving judgment in Redmond -v- the Minister for the Environment and the Attorney General HC: U/R 31/7/01. In that case the Plaintiff had sought to challenge as unconstitutional an obligation on every intending candidate to pay a deposit prior to his nomination being, accepted by the returning officer. The learned Judge, relied not only on Article 16.7 of the Constitution for upholding this challenge, but also held that discrimination between human persons on the basis of money was an attack upon the dignity of that person, as a human being and therefore infringed Article 40 section 1.

It appears from the aforegoing and it now seems quite clear that the State must in its electoral laws have regard to the concept of equality and must ensure that with any provisions passed into law the guarantee of equality as contained Article 40 section 1 of the Constitution will be respected. It cannot therefore by any provision of a statue, or by the manner and way in which it might implement such a provision, cause unjustified advantage to accrue to one person, class or classes of the community as against, or over and above, another person or class of that same community. Equals must be treated equally.

35. The decisions which I have mentioned also make it clear that the concept of fair procedures, as contained Article 40.3.1 of the Constitution equally applies to this type of challenge and must therefore be respected. As a result legislation, in this context, must be fair and balanced and must have that or an equivalent effect. See Blayney J., in McKenna (2), where at pages 49 and 50 of the report he said:-

“I am satisfied that constitutional justice requires that the executive should act fairly in discharging it, not favouring any section of the people at the expense of any other section. This would seem to be a minimum requirement for the discharge of any constitutional obligation. The people are entitled to be treated equally....has the executive observed fair procedures in submitting the amendment to the decision of the people? In my view it is now. The Government has not held the scales equally between those who support and whose who oppose the amendment. It has thrown its weight behind those who support.”

In Coughlan, Chief Justice Hamilton made a number of references to fair procedures, one of which is contained at p. 25 of the report where he stated:-

“in the case of a referendum which has as its objective the amendment of the Constitution, fair procedures require that the scales should be held equally between those who support and those who oppose the amendment.”

The cases last mentioned, touching on fair procedures under Article 40.3.1, drew from what Walsh J. said in Glover -v- BLN limited (1973) IR 388 but went on to expand on the point by indicating that if fair procedures were necessary, as between a Board of Directors and an office holder, then surely such procedures would also have to apply in the case of a Constitutional Referendum which could have a profound influence on the whole of society. The relevant passage from Glover’s case is in these terms:-

“This Court in re Haughey 1971 IR 217 held that that provision of the Constitution (Article 40 section 3) was a guarantee of fair procedures. It is not, in my opinion necessary to discuss the full effect of this Article in the realm of private law or public law. It is sufficient to say that public policy and the dictates of constitutional justice require that statutes, regulations or agreements, setting up machinery for taking decisions which may effect rights or impose liabilities should be construed as providing for fair procedures.”

36. Though Mckenna (2) was concerned with a referendum, and Redmond concerned with the requirement of a deposit, I am quite satisfied that the principles which operate under Article 40. 1 and Article 40.3.1 of the Constitution, equally apply in the case of electoral law, which in these proceedings mean the provisions of par. 2 (a) and (c) of the Schedule to the 1997 Act. There is not nor could there be, in my view, any conceivable reason as to why a distinction should be made between McKenna and Redmond on the one hand, and the instant case on the other. Indeed I do not understand the respondents to argue for a contrary position. Consequently the principle of equality must apply to all candidates seeking election or re-election, as the case may be. This does not however necessarily mean that uniformity must follow in all circumstances. Where however there is a difference, such a difference must be legitimately based and must be justified on both objective and reasonable grounds.

In addition in respect of all such candidates, the concept of fairness and basic fair procedures likewise apply.

37. Though the respondents in this case have accepted, expressly I think, that if their preferred interpretation should be rejected and the suggested alternative adopted by this Court then the impugned provisions cannot stand in the face of the constitutional articles which I have referred to. If however what I have said overstates their position, it is certainly true to say that at least inferentially they accept the likelihood of a similar result. That however cannot of course determine the issue of invalidity. This Court, before issuing any declaration, must be satisfied by way of evidence and submissions, that given the interpretation already placed on paragraphs 2 (a) and 2 (c), their existence cannot survive this constitutional challenge.

38. Having reviewed the evidence I am satisfied beyond doubt that the facilities which are available to outgoing members of the Dáil, are of particular relevance and value to those members who seek re-election. No tools could be more helpful or appropriate then postage, access to communications equipment, and all of the other services what is theirs as of right. Even if there was no cap on the expenditure which a candidate could incur, the availability itself, of such facilities and services out of public funds, could be said to be unfair and discriminatory, but when one adds to that a newcomer’s inability to match the value of such services by increased spending, then the resulting situation is unjust, unreasonable and arbitrary.

39. Moreover when one looks at the evidence produced by the scientists, even allowing for a difference of opinion, it is abundantly clear that an outgoing deputy has a distinctly greater chance of successfully retaining his seat than a first timer has in dislodging him. The reasons are of course multiple and no doubt have a diversity and weight factor referable to various different forces. It is difficult to see what if anything could be done about this and indeed probably nothing. However, given the undoubted existence of this benefit it is essential in my view not to exasperate the difference in a manner which extends this separation and thus in this way by placing an even greater disadvantage on a non-outgoing challenger.

This is precisely what has occurred by the operation of these said provisions. These services and facilities have and are being used as I have said previously by incumbents. Of course public funding for comparable services are not available to non-incumbents. No increased expenditure is now permitted so as to achieve even the appearance of balance. All candidates now have to comply with the limits, but in doing the calculations therefor, incumbent as we know can disregard the undoubted value of such services. Thus it is extraordinary clear that this results in a great distortion between incumbents and non-incumbents.

40. On this view of the provisions and on their operation, the only way in which either could survive would be if there existed any justification for this unequal treatment. No such justification has been offered and in my view none could exist, noting in particular as I do, the enormity in both scope and breath of par. 2 (c). As the resulting discrimination cannot be justified a rectifying solution must be found. Whether this should follow the pattern as set forth in section 31 (2) or be resolved by some other means is not a matter for this court. It is in my view an issue for the Oireachtas itself.

Consequently I am of the opinion, for the reasons stated, that the impugned provisions are repugnant to the Constitution, and to the extent necessary for this decision, are thereby invalid. This declaration of invalidity is also based on the absence of fair procedures.

41. In conclusion could I say that the concept itself, of statutory limits on expenditure at election time, is not undermined by this judgment. I believe, firmly so, that such an idea is utterly healthy in our democracy and that our law would be fully supportive of its implementation. However this must be achieved in accordance with due process and in compliance with constitutional guarantees.

Finally as is obvious the effect and consequence of this decision, if any, which may follow in the context of the present election are of course not dealt with as the same are outside the remit of this judgment.