High Court of Ireland Decisions

 
THE HIGH COURT

[2003 No. 43 M.C.A.]

IN THE MATTER OF THE GENERAL ELECTION FOR THE 29^th DÁIL

IN THE MATTER OF THE ELECTION FOR THE CONSTITUENCY OF CORK SOUTH CENTRAL HELD ON THE 17^th MAY, 2002

AND IN THE MATTER OF THE ELECTION PETITION OF

KATHRYN SINNOTT and MARK MENIHANE

Applicants

and MICHEÁL MARTIN

Notice Party

JUDGMENT of Mr Justice Kelly delivered on the 30^th day of January, 2004.

Introduction

The general election of 2002 was the first to be conducted in accordance with the fiscal constraints imposed by the provisions of the Electoral Act, 1997, as amended. That legislation brought about major changes in the ability of candidates to spend money on their election campaign and required them to make returns which would be overseen by a statutory body now known as the Standards in Public Office Commission.

The petitioners allege that the notice party exceeded the expenditure limits prescribed by law in the conduct of his campaign for election as a member of the Dáil for the constituency of Cork South Central.

The petitioners accept that under the relevant legislation they must, in order to be successful on this petition, prove not merely the overspending alleged but also that such wrongdoing was likely to have affected the result of the election. As the notice party denied any such overspending it was agreed that the court should decide that issue first. If proved, then the court would proceed to hear expert evidence as to whether the overspend was likely to have affected the result of the election.

Over a period of eight days commencing on Tuesday the 18^th November, 2003, and concluding on Friday the 28^th November, 2003, I heard both evidence and submissions concerning the alleged overspend.

On Monday 1^st December, 2003, I announced my conclusion on that topic. I held that the petitioners had not demonstrated that the notice party exceeded the expenditure limits prescribed by law. It was therefore not necessary to proceed to hear evidence from experts as envisaged. On that occasion I indicated that I would state my reasons in writing for so concluding and this I now do.

The Constituency

The constituency of Cork South Central returns five members to serve in the Dáil. In the general election of 1997 it returned three Fianna Fáil and two Fine Gael members.

In the 2002 general election it returned three Fianna Fáil, one Fine Gael and one Green Party members.

The notice party headed the poll in each of these elections.

The Petitioners

The first petitioner (Mrs Sinnott) stood for election in the constituency at the 2002 general election. The second petitioner was eligible to vote in the constituency and did so.

The Notice Party

Micheál Martin was elected to serve as a member for the constituency on the first count having exceeded the quota by a margin of approximately 5,500 votes. He is now the

Minister for Health and Children.

The Election Result

The notice party having been elected on the first count his surplus of approximately 5,500 votes was distributed. On this distribution approximately 1,770 votes went to Mr Batt O'Keeffe of Fianna Fáil and 1,725 were distributed to Mr John Dennehy of the same party. 409 votes were distributed to Mrs Sinnott.

A subsequent count gave rise to the election of Mr Simon Coveney of Fine Gael. On the eighth count Mr Dan Boyle of the Green Party and Mr Batt O'Keefe of Fianna Fáil were deemed elected. On the ninth count Mr O'Keeffe's surplus was distributed with 81 votes going to Mr John Dennehy and 43 to Mrs Sinnott. There then took place the distribution of Mr Dan Boyle's vote between the two remaining candidates; Mr Dennehy and Mrs Sinnott.

On the eleventh count Mrs Sinnott was elected with a surplus of 3 votes over Mr Dennehy. A recount was requested by Mr Dennehy following which he was deemed to be elected by a margin of two votes. Mrs Sinnott then requested a further recount which did not affect the outcome and Mr Dennehy was ultimately deemed elected by a margin of six votes.

Accordingly, the following were returned to serve as members for the constituency -

Micheal Martin - Fianna Fáil

Simon Coveney - Fine Gael

Batt O'Keeffe - Fianna Fáil

Dan Boyle - Green Party

John Dennehy - Fianna Fáil

It is clear from the above that Mrs Sinnott failed to be elected by a very narrow margin.

The Legislation

This petition is presented under the provisions of the Electoral Act, 1992. The principal piece of legislation which concerns the complaints is however the Electoral Act, 1997 which in turn has been amended on a number of occasions the latest being with the passage of the Electoral (Amendment) (No. 2) Act, 2002.

The long title of the 1997 Act describes it as an Act "to establish a constituency commission, to make provision for payments to political parties and candidates, to make provision for disclosure of donations for political purposes, to regulate expenditure at elections by political parties and candidates, to provide voting arrangements for certain persons unable to vote at polling stations and to provide for other electoral matters".

Part IV of the Act deals with the disclosure of donations and part V deals with the expenditure by political parties and candidates at Dáil elections and European elections. Section 32 of the Act, as amended, creates an upper limit to the election expenses which may be incurred by or on behalf of a candidate in connection with his or her candidature at a Dáil election. In the case of a constituency returning five members (such as the one in suit) that sum is capped at IR£30,000 which is the equivalent of €38, 092.14. That sum is the maximum permitted for election expenses in respect of a candidate in a constituency which returns five members. This is so whether the amount is spent by or on behalf of the candidate himself or, in the case of a candidate whose candidature has been authenticated by a political party, that party. The section, in its amended form, and insofar as it is relevant reads as follows:

"32(1)(a) Subject to paragraph (b) the aggregate of election expenses which may be incurred by or on behalf of a candidate in connection with his or her candidature at a Dáil election shall not exceed - …

(iii) in the case of a constituency returning five members, £30,000.

(b)(i) Where a political party authenticates the candidature of a candidate at a Dáil election, the party may incur such proportion of the amount of the election expenses which that candidate is entitled to incur at that election under paragraph (a), as may be agreed in writing between the party and the candidate concerned.

(ii) The election expenses which a political party may incur under subparagraph (i) may relate to expenditure in the constituency concerned or otherwise,

(2) Subject to subsection (1)(b)(i), the aggregate of election expenses which may be incurred by the national agent of a political party on behalf of that party at a Dáil election shall be the sum of the amounts of election expenses agreed in writing pursuant to subsection (1)(b)(i) between the party and candidates whose candidatures were authenticated by the party at the election.

(3) Expenditure by a political party at an election in a constituency (other than expenditure incurred by or on behalf of a national agent of that party ) on behalf of a candidate whose candidature is authenticated by the party shall be deemed to be expenditure incurred by the candidate and shall be accounted for accordingly by the candidate's election agent.

(4) Election expenses incurred pursuant to this section by a political party in a constituency in relation to a candidate at a Dáil election (including expenditure incurred in the constituency by or on behalf of the national agent of the party) shall be deemed for the purposes of section 21 to be expenses incurred by the candidate."

In order to make sense of these statutory provisions which I have just quoted, a number of matters need to be explained.

Before any election expenses may be incurred by a candidate he is obliged to appoint an agent who is known as an election agent. This is provided for at s.28(2) of the Act. The name of this election agent must be notified to the returning officer for the constituency.

Before any election expenses can be incurred by a political party which authenticates the candidature of a candidate such party is obliged to appoint an agent who is referred to in the Act as a "national agent". This is provided for in s.28(1) of the Act. The name and address of this agent must be notified in writing to the Standards in Public Office Commission.

Section 31(4) of the Act creates an absolute prohibition on election expenses being incurred at an election other than by the agents duly appointed. The subsection reads

"No election expenses shall be incurred at an election and no payment, advance or deposit shall be made in respect of such election expenses -

(a) on behalf of a political party, other than by the national agent of that party, and

(b) on behalf of a candidate other than by the election agent of that candidate".

Section 31 also prescribes the period of time which is to be reckoned for the purposes of that part of the Act and which is to be included in the return of election expenses which each national agent and election agent must make to the Standards in Public Office Commission pursuant to s.36 of the Act. The reckonable period in the case of a Dáil general election is that which commences on the date of the dissolution of the Dáil which occasioned the election and ends on the polling at the election. That is the relevant period with which I am concerned in this petition.

Section 31 also defines what the term election expenses means for the purposes of part V of the Act. In its amended form and insofar as it is relevant it provides as follows

"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) to promote or oppose, directly or indirectly, the interests of a political party … , or to present the policies or a particular policy of a political party … or the comments of a political party … on the policy or policies of another political party … or of a candidate at the election; or

(ii) to promote or oppose, directly or indirectly, the election of a candidate at the election or to solicit votes for or against a candidate or to present the policies or a particular policy of a candidate or the views of a candidate on any matter connected with the election or the comments of a candidate on the policy or policies of a political party … or of another candidate at the election; or

(iii) otherwise to influence the outcome of the election.

(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".

I have already summarised the effect of subsection (3) and (4) of s.31.

Attention must now be turned to the schedule to the Act since it is there one finds a list of the expenses which are to be treated as election expenses for the purposes of part V of the Act. That schedule contains eight separate species of expenses which are reckonable as election expenses under s.31. They are (a) advertising (whatever the medium used), (b) publicity, (c) election posters, (d) other election material, (e) office and stationery, (f) transport and travel, (g) market research and (h) campaign workers.

Each of these separate headings is followed by an inclusive description of what is covered by those terms.

Section 2 of the schedule provides, for the avoidance of doubt, a description of what is not covered in s.1 of the schedule.

Having outlined the statutory scheme, to which I will have to return in greater detail later in this judgment, I now turn to what occurred in the instant case by reference to it.

The Appointment of Agents

In accordance with the statutory requirement the notice party appointed as his election agent Mr Gerard O'Mahony. The national agent for Fianna Fáil was Mr Hugh Dolan.

Mr O'Mahony was the election agent for all of the Fianna Fáil candidates in the constituency.

Mr O'Mahony is a chartered accountant by profession and is the managing partner at the offices of Deloitte & Touche in Cork.

His appointment as agent for all Fianna Fáil candidates in the constituency was a departure from what had occurred previously. On those occasions each candidate appointed his own agent. The evidence satisfies me that this change was brought about at the urging of Mr Dolan who was acutely conscious of the obligations imposed under the Electoral Act, 1997 and wished to ensure compliance with those obligations. One way in which that could be achieved was by appointing a single election agent for all candidates in the constituency who would have a qualification in law or accountancy and who would in the words of Mr Dolan be a person of integrity. Mr Dolan wished to ensure that only persons with a professional background such as I have described should be appointed as election agents. He wished to obtain, as he said himself, persons of integrity who would not be willing to jeopardise their professional reputations by any non-compliance with the Act. He also wanted to ensure that they would be persons with sufficient presence to tell a candidate, even if a minister, that they could not spend any more money in the course of the campaign.

In obtaining the services of Mr O'Mahony as election agent I am of the view that Mr Dolan succeeded in his ambition.

Mr O'Mahony impressed me as a man who adopted a very professional approach to his task of ensuring compliance with the statute in his capacity as election agent for the notice party.

Mr Dolan is also a chartered accountant by profession and likewise struck me as a person who was very conscious of the obligations imposed by the legislation and of the serious consequences which might result from non-compliance therewith. I am of the view that he took not only his own obligations as national agent seriously, but also those of the party. The impression which I formed of him was fortified by the evidence given by the secretary of the Standards in Public Office Commission who told me that he had dealings with Mr Dolan, not just in relation to the election in suit but over a longer period going back even prior to the establishment of the Standards in Public Office Commission in 2001. He dealt with Mr Dolan when that Commission's predecessor was extant. During all of those dealings Mr Allen told me (and I accept) that he found Mr Dolan to be an individual who was very keen to be compliant at all times in relation to the electoral legislation and furthermore cooperated with the Commission.

I now turn to the returns which were made to the Standards in Public Office Commission by the election agent and the national agent.

The Election Agent's Return

Mr O'Mahony made the return required of him as an election agent to the Standards in Public Office Commission and verified that by means of a statutory declaration which he made on the 20^th December, 2002.

The return contains a summary of elections expenses which contains the following information.

(i) Election expenses incurred by the election agent - €21,430

(ii) Election expenses incurred by persons authorised by the election agent - € none

(iii) Total election expenses incurred by the election agent and persons authorised by that agent - €21,430

(iv) Amount of candidate's expenditure limit which the candidate has assigned in writing to the political party - €15,546

(v) Amount of expenses over and above the amount at (iii) above about which the election agent or a person authorised by the election agent is in dispute with the supplier etc - € none

(vi) Amount of any claims for payment of election expenses included at (iii) above received after the 1^st July, 2002, by the election agent or a person authorised by the election agent - € none

(vii) Amount of election expenses included in (iii) above which were met out of public funds - €7,462

From this return it is clear that the election agent spent €21,430 in total. That of course does not take account of any election expenses which were incurred by the national agent to which I will turn in a few moments.

The return made by the election agent cannot be seen without reference to a letter which accompanied it and which was addressed to the Standards in Public Office Commission. The letter reads:

"Re Election Expenses Statement:

Candidate Mr Micheal Martin.

Dear Sirs,

I enclose herewith the election expenses statement for the Dáil general election of 17^th May, 2002.

As you are aware, guidelines were published by the commission in respect of the last general election. As an election agent, I believe that I have complied in full with those guidelines. It is my belief that the above named candidate for whom I was the election agent has complied in full with the relevant provisions of the Electoral Act, 1997 as amended. On the basis of the guidelines issued on 5 March, 2002 the election expenses incurred by the above candidate amounted, in total, to €21,430 and were within the prescribed limit of expenses.

As a consequence of the decision of the High Court in Desmond Kelly v The Minister for the Environment Ireland and the Attorney General (16 May, 2002) the commission issued explanatory notes stating, inter alia, that it is necessary to include in the elections expenses' statements, details 'of any election expenses which were met out of public funds'. As you are aware, the Desmond Kelly case was appealed to the Supreme Court which recently issued its decision affirming the High Court determination. In your press release, issued on 5 December, 2002, it is noted that prior to 16 May, 2002 agents and candidates were 'entitled to assume that the rules on spending were set out in the relevant legislation and reflected in the guidelines published by the Standards Commission.'

On 17 December, 2002 further guidelines/advices were issued by the commission pursuant to s.4 of the Election (sic) Act, 1997 as amended. These guidelines/advices require the disclosure of certain costs and allowances. These costs and allowances are stipulated in paragraphs 2 - 6 (inclusive) of the guidelines. In the case of Dáil and constituency offices (and the "constituency unit" of departmental offices) these are to be included in the calculation of election expenses where they were used "for election purposes during the election period". Likewise the costs of the salaries and expenses of civil servants, in the "constituency unit" or such costs which are related to special advisers, are to be included where persons were engaged in activities "for election purposes during the election period". I have noted the provisions of your guidelines including paragraph 6 of your guidelines.

While I do not accept that all of the costs of the constituency office are reckonable expenses, I have nevertheless included same in pursuance of paragraph 6 of the guidelines. However, without prejudice to the contention that these costs cannot be categorised as election expenses I have nonetheless decided to include them in the statement of election expenses.

I am satisfied from the inquiries which I have made that no use was made by the above named candidate of the constituency unit of the private departmental offices during the election period. Likewise I do not consider that the civil servants in the constituency unit of the departmental offices were engaged in activities for election purposes. Thus I do not consider such civil servants were "campaign workers". Equally, costs related to special advisers were not incurred for election purposes. In these circumstances such costs do not constitute election expenses and are therefore not reckonable.

In the interest of fullest disclosure, I enclose the figures that would apply in the event that these expenses were election expenses. However, I am satisfied that they are not so and are therefore not included in the attached returns. The above reference to expenses, which are not reckonable election expenses, is made to show that the matter has been addressed and to confirm compliance with the provisions of the guidelines. In support of the contention that the above is not a reckonable election expense, the appropriate consultation has been made with the accounting officer of the department who has confirmed the position in this regard.

I say and believe and as will appear from the above that I am in full compliance with the provisions of the relevant Acts and the Guidelines made pursuant thereto.

Yours faithfully,

Gerard O'Mahoney."

The contents of that letter touch upon some of the complaints made by the petitioners which I will elaborate on later.

The National Agent's Return

Mr Dolan also made a return to the Standards in Public Office Commission as is required of a national agent. His return demonstrates the following.

(i) Election expenses incurred and payment made by the national agent - €1,616,910.77

(ii) Election expenses incurred and payments made by persons authorised by the national agent - €40,573.34

(iii) Total election expenses incurred and repayments made by the national agent and persons authorised by that agent - €1,657,484.11 of which expenses incurred and payments made at national level - €1,151,847.33

Expenses incurred and payments made in relation to individual candidates at constituency level - €505,636.78.

(iv) Total amount of election expenses which the candidates agreed in writing that the political party (national agent) could incur at the election - €1,670,811.10

(v) Amount of expenses over and above the amounts included in (iii) above about which the national agent or a person authorised by the national agent is in dispute with a supplier etc - € nil

(vi) Amount of any claims for payment of election expenses, included in (iii) above received after 1 July, 2002 by the national agent or a person authorised by the national agent - €70,430.29

(vii) Amount of election expenses included in (iii) which were met out of public funds - €11,395.28

In that part of the national agent's return dealing with amounts assigned by each candidate to the political party, the notice party is shown as having assigned €15,540.00 whilst the total expenditure on the candidate by the national agent is shown as €5,608.19.

From this return it is evident that the national agent stayed within his expenditure budget in that the candidates agreed in writing that he could incur elections expenses of €1,670,811.10 whilst in fact he only expended €1,657,484.11.

These two returns also demonstrate that the total amount expended both by the election agent and the national agent by way of election expenses for the notice party was €27,038.19 made up of €21,430 expended by the election agent and €5,608.19 by the national agent. Thus the total amount of election expenses incurred by the notice party was some €11,053.95 below the permitted spend of €38,092.14. That is of course on the basis of the returns made without taking account of the criticism of them which is made by the petitioners and to which I now turn.

The Petitioners' Complaints

Two allegations of overspending are made by the petitioners. One involves an alleged overspend of €2,384 and the other a potential overspend of €16,603. Details of how these amounts are made up were set forth in a document which was handed into court during the course of the hearing and which I now reproduce.

"Alleged overspending schedule.

First overspend arising out of understated assignment by candidate to political party.

(i) Total spending allowed - €38,092

(ii) Less amount assigned - €19,046

(iii) Balance remaining - €19,046

(iv) Amount spent as per statement - €21,430

(v) Balance remaining as per (iii) above - €19,046

(vi) Alleged overspend - €2,384

Second overspend arising from non-declaration of public funding of Minister's constituency unit office:

Figures supplied through Frank Ahearne memo:

(i) Staff costs - €7,505

(ii) Phone and fax costs - €70

(iii) Rental cost to State - €686

(iv) Ms Gillane - €4,703

(v) Mr Mannion - €3,639

Total potential overspend from this part - €16,603"

As the second of these complaints alleges the larger overspend I propose to deal with it first.

The essence of the complaint is that the notice party failed to include in his return or to take account of election expenses which were met out of public funds. The first three items on the list relate to the costs of running a constituency unit in the notice party's ministerial office housed at the Department of Health and Children in Dublin. Items (iv) and (v) relate to the salaries of two public servants who have a special relationship or functions as far as the notice party in his ministerial capacity is concerned.

The petitioners claim that all of these costs should be regarded as elections expenses and ought to have been returned as such. Had they been so returned, the notice party would have overspent beyond the statutory maximum of €38,092.14.

In the document which I have just reproduced it is clear that in computing the total potential overspend at €16,603 no credit was given for the fact that there was an actual underspend of €11,053.95. It follows that if all five items were wrongfully excluded from reckoning by the notice party the actual overspend would have been €5,549.05.

If one were to look at the legislation simpliciter one might wonder how this complaint comes to be made at all. This is because in the schedule to the Act which sets out the expenses referred to in s.31 one finds in the second part, for the avoidance of doubt, the clear stipulation that such definition is not to extend to "any expenses in respect of any property, services or facilities so far as those expenses fall to be met out of public funds". Each of the five items in respect of which complaint is made falls precisely within that definition. The reason why this case can be made by the petitioners arises directly from the fact that the exclusion was by a decision of this court, upheld on appeal by the Supreme Court, declared unconstitutional. That occurred in the case of Kelly v Minister for the Environment [2002] 4 IR 191. That was the case referred to in the covering letter which accompanied the election agent's return to the Standards in Public Office Commission of the 20^th December, 2002. It is necessary to examine that case and its impact.

Kelly v Minister for the Environment & Ors

Desmond Kelly was a candidate for the election to the 29^th Dáil. He contended that the effect of the Electoral 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. As those 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 parliament were materially exempt from the requirements of complying with statutory limitations on campaign spending in such elections. He argued successfully that the impugned provisions of the Act in themselves, and their application in practise, 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 respect of the limits on election campaign spending.

The result was that the wording of paragraphs (2)(a) and (c) of the schedule to the Act of 1997 were declared to be invalid having regard to the provisions of the Constitution.

The decision of this court in Kelly's case was pronounced on the 16^th May, 2002. The general election took place the following day. Whilst the decision does not appear to have come as a total surprise to interested parties nonetheless it did for the purposes of reckoning election expenses, create some difficulties.

The Supreme Court judgment in Kelly's case was delivered on the 29^th November, 2002. It affirmed the judgment of McKechnie J. striking down the relevant statutory provisions. It went further in that it expressly declined to declare that the order of the High Court rendering the relevant provisions invalid should be prospective only in its effect and should not affect any expenditure by members of the Oireachtas at the 2002 general election.

The Standards in Public Office Commission recognised that the Supreme Court judgment created problems for both national and election agents and by a letter of the 17^th December, 2002, it exercised its entitlements under s.4 of the Act to issue guidelines. In the covering letter containing those guidelines sent to the Minister for the Environment on the 17^th December, 2002, the chairman of the commission (Smith J.) inter alia said as follows:

"The guidelines concern the calculation of election expenses where the costs were met out of public funds and, in particular, refer to those facilities and services which may have been available to the Ministers and Ministers of State.

The Standards Commission is of the view that a distinction can be made in the matter of functions being discharged by a Minister or Minister of State in the context of his or her responsibilities as a member of the government, Minister or Minister of State and/or in relation to his or her departmental functions. These functions are separate and distinct from those being exercised as a member of the Houses of the Oireachtas or in relation to the activities of a political party. Such distinction is recognised in the Freedom of Information Act, 1997, s.2."

The guidelines were directed to election agents of Ministers and Ministers of State in connection with the calculation of election expenses that were met out of public funds. Insofar as they were relevant they provides as follows:

"3. The cost of the use of Dáil and constituency offices, for election purposes during the election period, is an election expense. It is a matter for each candidate to assess the extent of the use and to put an appropriate value on same.

4. The cost of salaries and expenses of civil servants in the 'constituency unit' of private departmental offices of Ministers and Ministers of State, or such costs which are related to special advisers, where they were engaged in activities for election purposes during the election period, are election expenses. It is a matter for the Minister or Minister of State, in consultation with the accounting officer of the department, to assess the extent of the use and to put an appropriate value on same.

5. Other costs of the 'constituency unit' of private departmental offices of Ministers and Ministers of State, or other costs related to special advisers, which were incurred for election purposes during the election period, including rent, heat, light, phones, fax, copying, printing, stationery, postage, envelopes etc are election expenses. It is a matter for the Minister or Minister of State, in consultation with the accounting officer of the department, to decide on the extent of the use and to put an appropriate value on same.

6. As already advised, where a constituency office was used for election purposes during the election period, the costs relating to such use must be regarded as election expenses. The Standards in Public Office Commission takes the view that it is probable that, during the election period, a constituency office which is normally used for constituency business, is likely to have been used for election purposes and, accordingly, unless it can be shown otherwise, the costs relating to such an office during the election period should be regarded as election expenses."

As is clear from the election agent's letter to the Standards in Public Office Commission of the 20^th December, 2002, he took into account the guidelines issued by that commission in making the return which he did. He decided not to include any of the five items which were publicly funded. The petitioners contend that he was wrong so to do and it is now necessary to examine whether he was correct in so doing or not.

I propose to consider each of the items in the reverse order to that in which they are listed.

Mr Mannion

Mr Mannion is an established career civil servant. He became the notice party's private secretary when Mr Martin was Minister for Education. When he was assigned the Health and Children portfolio Mr Mannion transferred to that department with the notice party.

The evidence establishes that Mr Mannion has no role within the constituency office or constituency unit in the Department of Health and Children. His main role is as a policy adviser. He also has what was described as "a certain political dimension in terms of the national situation". That was explained by reference to approaches being made to him to deal with a particular problem in, for example, a particular accident and emergency department of a hospital, which Mr Mannion would attempt to resolve. Mr Mannion was particularly involved in advising Mr Martin on, for example, problems concerning blood transfusions and the compensation tribunal set up in respect thereof.

The evidence satisfies me that Mr Mannion's duties were directed towards assisting the notice party in the discharge of his ministerial duties in particular areas of responsibility.

The uncontroverted evidence of the notice party is that Mr Mannion performed no role in his election campaign at any stage during it. The notice party made it clear in advance of the campaign that such was to be so and directed that Mr Mannion was to play no role in it.

The evidence establishes that Mr Mannion was not involved and did not work on the election campaign.

During the campaign he continued with his normal functions save that they were increased by the fact the Ms Gillane, to whom I will turn in a moment, was on annual leave and her duties were assigned to him for that period. None of those normal duties I am satisfied could be regarded as ones which would be captured by the statutory provisions in question. I am fortified in that view by the fact that in the closing moments of the final day of the hearing Mr Rogers S.C., on behalf of the petitioners, conceded that Mr Mannion's services could not be regarded as election expenses. It follows that the election agent was correct in treating Mr Mannion's remuneration as being outside the ambit of the Act and in not including him in the election expenses return.

Ms Gillane

Ms Gillane is not an established civil servant. She was described by the notice party as a person with a background in industrial relations. She was formerly employed by the Irish Nurses Organisation and was seconded to the notice party upon the death of his previous policy adviser. She is remunerated out of public funds and works as a policy adviser for the notice party. She deals with such areas as industrial relations, hospital waiting lists, women's health policy, maternity and family planning, nursing policy and health strategy. The evidence is that she played a particular role in the organisational reform of the health structures and the treatment purchase scheme. For the duration of the election campaign, however, there is no doubt but that she devoted herself to working full-time on the notice party's election campaign. She removed herself from the Dublin office and went to work in the Cork constituency office which was effectively the election headquarters of the notice party for the duration of the campaign. But she did so whilst on annual leave from her public service position.

The nett question which arises is whether the salary of a public servant is reckonable as an election expense if that person volunteers their services to a candidate in pursuit of an election campaign whilst on anneal leave. The petitioners contend that such services must be regarded as being reckonable as an election expense.

The issue of serving civil servants who are ministerial private office appointees and their ability to work during an election campaign was one which was considered by the Government. At its meeting on the 17^th April, 2002, it considered advice which was received from the Department of Finance concerning the possible involvement of such persons in the general election campaign of that year. The Government considered that the advice which it had received should be brought to the attention of the civil servants concerned. All of this is set out in a letter from an assistant secretary in the Department of Finance addressed to personnel officers within the public service. In that letter it is pointed out that the civil servants in question are exempt from the general rules governing civil servants and politics in that they can become members of political parties and contribute to public debates. The letter goes on:

"It is likely that some of the civil servants in question will work in campaign offices during the forthcoming general election and, in those circumstances, the following arrangements will apply:

Staff who move to work in campaign offices during the election period should take annual leave to cover the period of unpaid voluntary work in question.

Staff who are not involved in campaign offices may remain in their departments and continue to perform their official duties. They should do so on the same basis which currently operates and

Where staff take annual leave to work in the election campaign, arrangements can be made to interrupt annual leave – and election campaigning – if this becomes necessary for the purpose of attending to official duties."

Ms Gillane did precisely what was directed in that circular letter and took her annual leave. Like any other public servant she was entirely free to spend her annual leave as she thought fit. Insofar as the Department of Finance is concerned it is clear from the final part of the circular letter from which I have just quoted that she was not considered to be on official duties whilst on annual leave. That she chose to spend her annual leave campaigning for the notice party was a matter of personal choice.

There is no doubt but that campaign workers fall within the definition of expenses which are set forth in the schedule to the Act. The inclusive description reads "expenses in respect of that matter include payments to campaign workers, insurance and other costs".

Counsel on behalf of the petitioners contends that Ms Gillane was performing the function that she normally performed even though she was on holidays and therefore her salary was reckonable as an election expense. He argued that if a volunteer worker on an election campaign does work which he ordinarily does in the course of his career then the value of that work is reckonable as an expense. This he says applies across the board whether a person is employed in the public service or not. If in the public service then he says it is the logical extension of the Kelly decision that the salary of that person, even if on leave, must be reckoned.

I do not accept these arguments. If the petitioners' view on this matter is correct it effectively sounds the death knell for the volunteer election campaign worker. In Mr Rogers argument all of the efforts of such workers would have to be accounted for if such work involved them carrying out tasks which they ordinarily do in the course of their careers. I do not accept that was the intent of the legislature. Volunteer workers play a useful role in a healthy democracy and it would require very clear legislative language to produce the result which is argued for by the petitioners.

Neither do I accept that this is the logical extension of the decision in Kelly's case. It would, of course, be otherwise if Ms Gillane worked on the election campaign whilst continuing, and in the course of, her work as an unestablished civil servant. Then her salary would undoubtedly be reckonable. But if a person who takes their holidays from their position as an unestablished public servant and spends them as Ms Gillane did, she should not have her public service salary accounted for as an election expense as though she continued to work as normal thereby turning a blind eye to the fact that she was actually on holidays.

I am satisfied that in treating Ms Gillane as being outside the ambit of election expenses as provided for in the legislation, the election agent was correct.

The Constituency Unit

This judgment is concerned with the constituency unit situate in the Ministerial Office at Hawkins House in Dublin. It is not concerned with the constituency office operated by the notice party at 137 Evergreen Road in Cork. Whilst that office is staffed by persons who are remunerated out of public funds, they are not established civil servants. On the notice party's evidence two of them would lose their jobs if he ceased to be a Minister and the third, who was his constituency secretary, would lose her job if he lost his seat. This Cork office was the headquarters of the notice party's election campaign and a full return was made in respect of the salaries of the unestablished civil servants working there. This was so even though views were expressed by them to the election agent that by no means all of the work done in that office during the election campaign ought to be regarded as election expenses. Mr O'Mahony, prudently in my view, decided to take no chances in that regard and made a return of one hundred per cent of the costs of that office during the election campaign.

A nil return was made in respect of the constituency unit in the Minister's office in Dublin. Mr O'Mahony accepts responsibility for the decision to treat the constituency unit in Dublin in that fashion.

Before making his decision Mr O'Mahony enquired of both Ms Gillane and the Minister as to the position. The information that he got was to the effect that nearly all of the activities which were normally carried on in the Dublin office were transferred to the Cork constituency office during the period of the election campaign. He asked the Minister to enquire from the accounting officer who is the secretary general of the Department as to the position which obtained in the Dublin office. Those enquires were carried out and resulted in a memorandum (which was admitted in evidence both as a document and as prima facie evidence of the facts contained in it) being generated. It was prepared by an assistant secretary in the Department of Health and Children and was addressed to the secretary general. There is a notation from that officer at the bottom right hand corner of the document in the following terms:

"Minister, as discussed. I have confirmed that neither the staff in the Dublin constituency office nor Mr Mannion were involved in any activities outside the scope of their normal duties and (illegible) to that extent I would not regard the figure relating to them as relevant in this particular context".

When asked about the phrase "this particular context" Mr O'Mahony made it clear in his evidence that is a reference to the query which he had put and which was taken directly from the guidelines issued by the Standards in Public Office Commission on the 17^th December, 2002, namely "were the costs of the unit incurred for election purposes and if so the determination of the extent of the use and appropriate value being placed on them?". With the information which Mr O'Mahony had gleaned from Ms Gillane and that which was contained on the document which I have just referred to he concluded that the expenditure in the constituency unit in Dublin was not relevant expenditure for the purposes of the return which had to be made. He made it clear in his evidence that he asked the accounting officer to establish from his (the accounting officer's) point of view without fear or favour exactly what he considered either Mr O'Mahony or the notice party should be taking into account in the figure. If the accounting officer said that some or all of these monies had to be included then, whilst Mr O'Mahony and the notice party might not have been happy with the result, such figure would have been included. The real issue is whether or not the costs of the duties which were carried out in the constituency unit in Dublin during the election campaign fall to be treated as election expenses within the statutory definition read in the light of the decision in Kelly's case.

In his evidence the notice party made it clear that the Dublin office played no role in his election campaign. That campaign was conducted from the Cork office exclusively and the Dublin unit, and the personnel in that unit, played no part whatsoever in that campaign. He told me that he did not have any power to stand down the staff in the Dublin unit and if the work of that unit and the staff in it was to be judged to be election work he would have been faced with what he described as a huge issue and dilemma. The reason for that was because he regarded the Dublin unit as being of "very little use to him electorally". He asked the secretary general of the Department to assess the extent of use of the Dublin unit having regard to the guidelines issued by the Public Office Commission. The notice party left it entirely to the secretary general to make such an assessment and made no attempt to influence the outcome of that inquiry. When the result was obtained it was one with which the notice party concurred because as far as he was concerned staff in the Dublin office were not involved in any election campaigning whatsoever. In fact the notice party went so far as to say that he would regard it as a grave injustice if the Dublin constituency unit were to be regarded as an election expense because it was of so little use to him in an electoral context in terms of the campaign.

Mr Evan Hackett is a career civil servant who joined the Department of Health in June, 1999. In November, 2000 he was transferred to the constituency unit of the Minister. He is now a higher executive officer, but at the time in suit was an executive officer with four clerical officers working to him. He confirmed the evidence of the Minister to the effect that a specific instruction was given to him and to the other staff in the constituency unit that they were not to become involved in the election campaign.

The evidence establishes that the work of the constituency unit can come to it in one of three different ways. First, the notice party normally holds clinics in his constituency over the weekends. Sheets are prepared at those clinics dealing with the particular queries and these sheets are posted to the Dublin unit and usually arrive on a Monday or Tuesday after such clinics. Mr Hackett described the procedure which is then followed such as opening a file and inputting data on to the computer system. Secondly, queries are directed from the Cork office to the Dublin office. Normally the Cork office would deal with the more local issues such as housing and the local corporation but issues dealing with, for example, other Government Departments would be referred from the Cork office to the Dublin office. Finally, queries might be received directly in the unit some of which would emanate from the constituency and others not. When these queries are received in the unit the information is put onto the database, a file is opened and an acknowledgement sent within a few days. The office then follows up on these queries and responds in due course.

During the election campaign the work of the Dublin unit in fact decreased from the norm. The reason for that was twofold. First, no clinic sheets were received because during the election campaign the notice party did not hold any clinics. Secondly, because there was much canvassing going on door to door the queries raised there were dealt with directly by the Cork office rather than by contact with the Dublin office. In fact no correspondence was received from the Cork Office during the campaign.

The third source of work for the Dublin office remained during the course of the election campaign. The evidence of Mr Hackett is that forty nine new queries were received during the course of the campaign. All were acknowledged, but not all were received from constituents. In fact about half of these came from non-constituents of the notice party. This resulted in twenty seven new constituency files being opened. About eighteen or nineteen of these involved representations being made on behalf of the constituents. In addition, of course, existing files which had been opened on behalf of Cork South Central constituents continued to receive attention. There were twenty one such active files during the election campaign period. Some of these twenty one correspondents received correspondence from the unit during the campaign. No evidence was adduced as to the nature of such correspondence so I cannot say whether the news communicated in it was helpful or otherwise.

Mr Hackett was adamant that during the course of the election campaign no correspondence was received from the Cork office and in fact he was specifically instructed not to deal with any work from the Cork office during the election. He did however do his normal duties as he described them pursuant to the memorandum of 24^th April, 2002, from an Assistant Secretary in the Department of Finance.

So the entire of the work of the constituency unit at Hawkins House during the election period was confined to dealing with new queries which came in directly from members of the public, some of whom were constituents in Cork South Central, and the continuation of work on files which had been opened prior to the election being declared.

Is the cost of this work reckonable as an election expense pursuant to the legislation?

Election Expenses

Section 31(1)(a) defines election expenses as 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 the case of a Dáil general election that period runs from the date of the dissolution of the Dáil which occasioned the election ending on polling day at the election. Subsection (b) provides that the election expenses are those and only those set out in the schedule to the Act. That schedule sets out the eight specific categories of expenses which I have already mentioned earlier in the judgment.

Section 31(1)(a)(i), (ii) and (iii) make it clear that in order to qualify as an election expense an expense must be incurred in order to achieve one or other of those purposes specified in sub-headings (i), (ii) or (iii). However, regardless of purpose it is clear that in order to qualify as an election expense within the meaning of the Act the expense must be one of those set out in the schedule to the Act. If an expense does not fall within what is contained in the schedule then it is not an election expense at all. Furthermore, the election expense must be incurred in the provision of property, goods or services "for use at an election" during the relevant period. It follows therefore, that (apart from the temporal limitation) in order for a matter to be considered an election expense it must (a) be one of those set out in the schedule to the Act, (b) be incurred in the provision of property, goods and services for use at an election, (c) in order to achieve one or other of the purposes set forth at subparagraphs (i), (ii) and (iii) of subsection (1)(a) of s.31.

Subsection (4) of s.31 makes it clear that no election expenses may be incurred at an election save by either the national agent or the election agent. Indeed it is a criminal offence for any other person, unless authorised by the national or election agent, to do so (see s.43).

Section 32 makes it clear that the aggregate of election expenses which is permitted by that section and which may be incurred by or on behalf of the candidate are to be incurred in connection with his/her candidature at the election.

Although the definition of election expenses is quite broad it is subject to the statutory constraints to which I have alluded. The purposes for such expenditure which are dealt with in sub-paragraphs (i), (ii) and (iii) of s.31(1)(a) are very widely drawn and involve the promotion or opposition directly or indirectly of the interest of a political party or the promotion or opposition directly or indirectly of the election of a candidate or otherwise the influencing of the outcome of the election. But an expense having such a purpose does not qualify as an election expense unless it is one of those set out in the schedule to the Act and is incurred in the provision of property, goods or services for use at an election during the relevant time period.

Given that statutory language and the evidence as to what occurred in the constituency unit during the relevant time I have come to the conclusion that Mr O'Mahony was correct in not regarding its cost as a reckonable election expense in the return which he made. In coming to that conclusion I bear the following in mind.

The personnel working in the constituency unit were permanent established civil servants who were not involved in any activity pertaining to the election campaign. Quite apart from the fact that it would have been improper for them to become so involved they were subject to an express direction not to do so and I am satisfied that that injunction was obeyed fully. They played no role in the campaign. No electoral organisation or campaign organisation was dealt with in this office. No campaign literature was sent from it. All of that activity was taking place at the office at 137 Evergreen Road, Cork.

Indeed it is clear that during the course of the campaign the actual workload of the Dublin office reduced considerably in the manner which I have already described. During the campaign the civil servants in that office performed their functions in the normal way but subject to the substantial reduction of the amount of work. I am satisfied that these civil servants were under the general supervision and direction of the Secretary General of the Department of Health and Children and that the notice party had no power to stand them down fully.

The petitioners called evidence from Mr Fergus Finlay the Chief of Staff of the Labour party. He is a full-time political adviser to that party and has performed that function for a succession of Labour party ministers. In testifying as to the workings of constituency units, he said that these units were vital from a number of points of view. They affect the minister's standing in the constituency, because if the minister is perceived as somebody who cannot respond effectively to representations his standing will decline very considerably. He said that the effect of the duties carried out by civil servants in such a unit would assist in the promotion and image of the minister in his constituency. The absence of them would be "disastrous" for the minister. He said that the duties of civil servants in such a unit do not alter when an election campaign is on but there is a civil service rule and tradition that no overtime is allowed during such a campaign. He said however, that there would probably be a heavier burden of work to be dealt within the normal day because a lot more representations would generally come through. Whilst that may have been Mr Finlay's experience in relation to the level of representations received I am satisfied that on the facts of this case the converse was the position.

The notice party in his evidence accepted that the constituency unit was of importance and the absence of an efficient administrative reply to queries received could be a negative factor. That negative factor could affect him in the course of the election. He furthermore accepted that the unit was an important part of his political as well as his governmental role. Further whilst he accepted that it could be of some importance he said that he could not give an exact assessment in terms of the degree of importance and pointed out that sometimes the effect could be negative. He added that a lot of the issues that come into the office result in a high rate of failure. This being so it would follow as a matter of probability that at least some of the responses which went out during the campaign would have conveyed news to the recipients which might negatively affect the standing of the notice party. I did not have evidence concerning each of these queries. It seems to me that it was never the intention of the legislature that the court should become involved in considerations of that sort involving as it necessarily would a minute consideration of each piece of correspondence and an attempt to discern the effect which it might have on the recipient, whether positive or negative.

Having regard to the facts which I have found concerning the very limited working of this unit during the relevant period and the nature of that work it would strain common sense to suggest that the costs of the unit during that time amounted to election expenses incurred in the provision of property, goods or services for use at the election.

In my view the facilities of the constituency unit were not used for election purposes. They were not, to use an expression which found favour with Kelly L.J. in McCrory v. Hendron [1993] N.I. 177, 'closely related to the machinery of an election'.

Apart from giving the directions which he did, the notice party had no entitlement to stop the work of this unit. The incurring of election expenses is prohibited to anybody other than the national or election agent. But neither the national nor the election agent had or could have any control over the running of the constituency unit in suit.

I am of opinion that the observations of Kelly L.J. in the McCrory case, although dealing with differently worded electoral legislation, nonetheless have substantial force in this jurisdiction. He said in the context of the wide statutory language which he had to construe that parliament had used such language "conscious of the expanse of its range but, in my opinion, leaving it to the courts to apply it in any constrained way which they consider commensurate with common sense and justice in the circumstances of the particular case".

Applying that yardstick it does not appear to me that it can be said that the expenses incurred in the constituency unit in Dublin fall within the definition of election expenses as properly understood. The limited work done there was not for use at the election.

My view in this regard, it seems to me, is fortified by another consideration. Pursuant to Article 28.11.2 of the Constitution the notice party in his capacity as a minister of government remained in office until his successor was appointed. He was therefore obliged to continue to conduct his ministerial duties. It would, in my view, be unfair if the notice party's expenditure limit had to be reduced by the amount attributable to the operation of the constituency office in the limited form in which it occurred here whilst a similar expense would not have to be incurred by a rival candidate who was not a minister and who did not have to continue to carry out ministerial obligations pursuant to the provisions of the Constitution.

Before departing from this topic I wish to make two further observations. First, the decision which I have arrived at is one which is based on the evidence which was adduced in this case. This judgment is not to be taken nor is it intended to be a form of judicial imprimatur for regarding the cost of a constituency unit in a minister's office as not being an election expense reckonable pursuant to the provisions of the legislation. Depending upon the activity which is carried on therein there may well be cases where some or indeed all of the cost of such a unit would be reckonable as an election expense. This case goes no further than its own facts in that regard.

Secondly, even if I am wrong in the conclusion which I have come to concerning the non-reckonability of the cost of the constituency unit as an election expense it does not affect the outcome of this complaint. It is clear from the arithmetic in the case that even if the costs of the unit were to be included in their totality the notice party did not exceed the upper limit imposed by the legislation having regard to the conclusion which I reached concerning both Mr Mannion and Ms Gillane.

I now turn to the next issue in the case.

The Undertaking

Under the legislation the only funds available for expenditure by a political party upon a candidate by way of election expenses are those assigned to that party from the aggregate sum permissible for expenditure on a candidate at the election. This is clear from the terms of s.32 of the Act. This provision, quite understandably, was a cause of considerable concern for the Fianna Fáil party at national level. There was a clear realisation that if candidates decided not to assign any part of their permitted expenditure to the national party there would be no funds at all available for expenditure by way of election expenses. Equally, if candidates were given an unfettered discretion as to the amount which they could assign it would be a nightmare from the point of view of the party attempting to plan and budget for the election. In these circumstances it is hardly surprising that this topic was considered at the highest level in the party over a period of time.

At a meeting of the National Executive of the party on the 14^th December, 2000, that committee agreed to recommend that the spending limits imposed by the Act would be split 50/50 between spending at national level and local level and that one election agent would be appointed per constituency. A final decision on the matter was however deferred until the following meeting because it was anticipated that Mr Dolan would provide a briefing on the details of the legislation. Mr Dolan provided such a briefing and at the meeting of the National Executive of the 8^th February, 2001, it was decided that there would be one election agent per constituency and that the split between national and local level would be 50/50. At the time when this decision was made the Electoral Amendment Act of 2001 had not been passed so that actual spending limits had not been finalised. At that time there was a Bill pending which proposed to increase the spending limits significantly. So although this decision in principle to split 50/50 was made, Mr Dolan was uncertain as to how much money would actually be available to him.

During the course of 2001 he made a number of presentations to the parliamentary party and in this regard was assisted by Mr O'Mahony. In May of that year there was a seminar for election agents which was addressed by Mr O'Mahony dealing in particular with the practical experience which he had gained from the time that he acted as election agent for a Ms Behan at a bye-election which had already taken place.

Towards the end of 2001 discussions took place between Mr Dolan and Mr Macken the general secretary of the Fianna Fáil party on the question of the assignment between candidates and the party and how that would operate. The general secretary of Fine Gael had provided Messrs Macken and Dolan with his assignment plan for his party. This plan was the subject of discussion between Mr Macken, Mr Dolan and the director of elections for Fianna Fáil, together with a number of other issues. This discussion culminated in the preparation of a memorandum which was sent to the party leader together with the Fine Gael spending plan for his decision. The memorandum reads as follows:

"Taoiseach, As you know the new Electoral Act and related legislation imposes new spending limits on the party. This spend has to be divided up between national campaign spend and constituency spend. The allocation of constituency spend is an important - and sensitive - issue. The national executive has allowed for a 50/50 split between national and constituency spend. However, I believe that that may not allow for enough in given constituencies and could put us at a disadvantage vis a vis other parties.

I believe we have two options:

• To fix budgets for constituencies based on their marginality (see enclosed grid), with candidates, directors of organisation and election agents being informed of their spend early in the new year. Clearly this means some constituencies will get larger constituency budgets than others i.e. Clare candidates would have more to spend than Laois/Offaly.

• To have, as Fine Gael does, a fixed formula for each constituency depending on the number of candidates the party is running, i.e. in a five seat constituency where F.G. is running three candidates (such as Meath) the allocation is £37,500 or £12,500 per candidate. I have enclosed a copy of the F.G. proposals.

It is important to sign off on this in the new year because the allocation of funding to the constituencies has knock on effects for the size of the national campaign budget also.

I enclose:

• A suggested grid for election constituency spend based on marginality (and showing what the F.G. spend would likely be);

• A copy of F.G. proposals;

• A copy of the draft national budget;

• A copy of the 1997 election budget for comparison.

Hopefully you will have a chance to study this so we can sign off on the matter early in the new year".

The evidence establishes that there was some concern at the time that this memorandum was prepared that the 50/50 split would not be sufficient for certain marginal constituencies. Mr Macken felt that candidates running in marginal constituencies should not just have 50% available to them to spend on their local budgets but rather should have a higher figure so as to ensure that they were not disadvantaged in any sense and he was particularly conscious of that when he looked at the Fine Gael plan.

While all this toing and froing and discussing was going on, however, it was clear that Mr Dolan was proceeding to ensure that the decision of the national executive was implemented and that appropriate undertakings were being procured from candidates assigning 50% of their election spend to the party. I will return to the precise form of these undertakings later in the judgment.

By the end of 2001 he was about midway through that process. He had commenced it in September but it was no easy task. His first job was to obtain agreement on a single election agent in each constituency. That was not being well accepted in some quarters. When election agents were agreed he would then send out the written campaign undertaking, but as he said himself it was proving very very difficult to get the campaign undertakings back. It took seven months in all for him to procure one hundred and six undertakings. I am satisfied that he was, as he said himself, confronted with a situation where every difficulty under the sun was created for him in this regard.

Meanwhile whilst there was no response in writing from the party leader to the memorandum which I have already quoted it seems clear that he let his views be known to Mr Macken early in 2002. He elected for the first of the two options set out therein. That permitted of additional spend at local level for candidates in particular constituencies.

It is clear that there were two parallel processes in operation concerning the question of undertakings. At one level there was the decision of the national executive providing for the 50/50 split. That decision was being implemented by Mr Dolan from the month of September, 2001 onwards. He was meeting with considerable resistance in his attempts in this regard. Contemporaneous with this there was a second process in operation. It involved the discussions which I have outlined, the options being placed before the party leader and the determination to permit of some flexibility so as to allow additional spend at local level for particular candidates. This arrangement was not however manifesting itself in the written undertakings which were being prepared and distributed to relevant party members. In the election expenditure controls handbook which was dated February, 2002 there is no mention of any policy other than that which was decided upon by the national executive. Having set out the election expenditure limits the handbook says

"Candidates will not be permitted to spend all of the limits. The Act provides that to spend money on the national campaign the party must have a proportion of the candidates' expenditure limit assigned to it.

The Fianna Fáil national executive in February, 2001 made a decision that requires each of the party candidate ...sic) is required to assign 50% of his/her spending over to the national party campaign".

Dealing with the campaign undertaking the booklet says "this undertaking will be incorporated into the campaign undertaking provided for as part of the Standards in Public Life Commission code of conduct for candidates and public representatives. This written undertaken ...sic) will be binding and will be retained at party headquarters for production to the Standards in Public Life Commission.(sic) The majority of these undertaking (sic) have now been executed, and the few remaining will be finalised in the next few weeks".

When one turns to the form of campaign undertaking itself there could be little doubt as to its intent. I will consider the wording of this when I come to deal with the actual undertaking made by the notice party in the present case.

The Position in the Cork South Central Constituency

By November, 2001 Mr Dolan had not even sent the written campaign undertakings to the Cork South Central constituency for execution. In fact he had decided not to send them to that constituency until as late as possible. This was because he had encountered a number of particular difficulties in that constituency.

Mr Dolan was very anxious to recruit the services of Mr O'Mahony as the election agent. Mr O'Mahony had both expertise and experience and was the type of person whom Mr Dolan envisaged as being appropriate for the position of election agent. In addition he was anxious to recruit him to assist in the national campaign. Mr O'Mahony however, was far from enthusiastic about taking up the position of election agent. Furthermore, considerable resistance was encountered in this constituency to the notion of a single election agent acting for all Fianna Fáil candidates.

Mr O'Mahony, because of his previous experience at the bye-election, was not anxious to be constrained to the spending limit which had been mandated by the national executive. He wanted to have a form of contingency fund to which he could have access if needs be.

By the 22^nd November, 2001, the first of a series of spreadsheets had been generated at national level by Mr Dolan touching upon the issues which were ultimately addressed in the memorandum which was sent to the party leader before Christmas of that year. This dealt with additional spending in certain constituencies one of which was Cork South Central. It provided for an additional spend of £5,000 per candidate in that constituency.

A whole series of these spreadsheets was generated between then and February, 2002 and it is one such spreadsheet which accompanied the memorandum to the party leader. However, in the various spreadsheets which were put in evidence between those dates it is clear that it was always envisaged that there would be an additional spend in the constituency of Cork South Central of £5,000 per candidate.

Mr Dolan appears to have been aware of Mr O'Mahony's concerns but held off making contact with him until after the party leader had given his assent to the additional spend provisions in respect of what were perceived as marginal constituencies. Once that was done Mr Dolan had discussions with Mr O'Mahony. He was now in a position to meet Mr O'Mahony's requirement for the contingency fund. He had a discussion with him about the information contained on the spreadsheets and told him that an additional local spend would be available to candidates in Cork South Central. At the time when he had this first discussion with Mr O'Mahony nothing had in fact been assigned to Mr Dolan by any of the candidates in the Cork South Central constituency. The upshot of these discussions was that Mr O'Mahony was to have an additional £5,000 available to him to spend locally notwithstanding the decision of the national executive and the formal undertaking which was executed by the notice party subsequent to these arrangements being discussed and agreed between Mr Dolan and Mr O'Mahony.

Indeed it would appear that at no stage were any of the undertakings signed by any candidate ever amended so as to reflect this parallel arrangement which had been discussed at a high level in the Fianna Fáil party and agreed upon. In fact these arrangements were not generally disclosed and in Mr Dolan's view ought not to be disclosed until such time at least as all of the assignments were returned to him duly executed. He was fearful that if word of this arrangement got out some candidates would baulk at executing the undertakings. Unfortunately for Mr Dolan the last of the executed undertakings were not received by him until the date of the Dáil's dissolution at which stage of course it would be very late to attempt any amendment to the written undertakings if such were ever intended to occur.

In any event on the 14^th February, 2002, a letter dated the 11^th February, 2002, was sent by Mr Dolan to the notice party. It read:

"Dear Micheal,

As part of the party's planning for the General Election, each candidate will be required to sign a campaign undertaking in advance of the election. This is the campaign undertaking mentioned in the revised party pledge which all candidates sign in advance of convention. The purpose of the campaign undertaking is to outline procedures which will assist us in complying with the Electoral Acts, 1997 to 2001.

I enclose your campaign undertaking and I would appreciate if you could please sign it and return it to me at party headquarters as soon as possible.

If you have any questions about this matter please give me a call.

Yours sincerely

Hugh Dolan

National Agent

Fianna Fáil"

Accompanying that letter was the standard form campaign undertaking which all Fianna Fáil candidates were obliged to execute. The first part of that document dealt with undertakings on the part of Fianna Fáil, it read as follows:

"Micheal Martin, having been selected as a candidate for the next Dáil Eireann in the constituency of Cork South Central and having been subsequently ratified as a candidate for the constituency by the Fianna Fáil Ard Comhairle (and subject to no subsequent de-selection by the Ard Comhairle) Fianna Fáil undertakes as follows:

1. To support his/her election by promoting him/her and the party by means of the national election campaign

2. To provide his/her candidature with such other assistance and support as shall be determined by the Ard Comhairle and/or the National Director of Elections.

3. To provide the required certificate of party affiliation to be lodged with his/her nomination papers in advance of the close of nominations."

The second part of the document contains undertakings on the part of the candidate. It read

"I, Micheal Martin, having been successful in being selected as a candidate in the Dáil constituency of Cork South Central and subsequently ratified by the Fianna Fáil Ard Comhairle undertake the following:

1. I undertake that I shall appoint Ger O'Mahony as my election agent for the purpose of the Electoral Acts, 1997 and 1998 and any amendment thereto and I agree to cooperate with him/her in ensuring compliance with the requirement of those Acts.

2. I hereby assign to the Fianna Fáil national agent for expenditure on the national party campaign 50% of the limit of election expenditure to which I am entitled under the Electoral Act, 1997 and any amendment thereto.

3. I undertake that I and those involved with me in organising and operating my campaign shall cooperate with the above election agent, Fianna Fáil party headquarters and the party's national agent in ensuring fully compliance with the requirements of the Electoral Act, 1997 and 1998 and any amendment thereto."

The form is required to be signed and witnessed by the candidate and also to be signed and witnessed by the national agent. It was so signed and witnessed by the national agent on the 8^th February, 2002, and was later signed by the notice party and witnessed by Christy Mannion. It was received by Mr Dolan in its executed form on the 21^st March, 2002. The likely date of execution by the notice party was the 18^th March, 2002.

This document was the only undertaking executed by the notice party and it unequivocally assigns 50% of his election spend entitlement to the party. That is in perfect conformity with the decision taken by the national executive which is the supreme rule making body within the Fianna Fáil party when the Ard Fheis is not in session. These proceedings are not concerned with the extent to which it was open to individual officers or groups of officers or even the party leader alone or in conjunction with them to depart from rulings which were made by the supreme rule making body of the party. Whether it was correct for these individuals to decide as they did notwithstanding the ruling of the national executive, it is quite clear that they did so and that nobody in authority in the party demurred. The de facto situation which obtained therefore, insofar as the notice party is concerned, was that although the formal written undertaking had been executed by Mr Martin there was a clear understanding between the national agent and the election agent concerning the availability of additional funds up to a maximum of IR£5,000 (€6,349). Thus the written undertaking did not tell the whole story and in order to find documentary evidence demonstrating the existence of the parallel arrangement one has to look at the series of spreadsheets which were put in evidence and which reflect the discussion which had taken place in the first instance between Mr Dolan and the General Secretary of the party and ultimately between Mr Dolan and Mr O'Mahony concerning the constituency in suit.

Whether this arrangement, evidenced in the way in which it was, is sufficient to comply with the terms of the legislation is a matter to which I will turn later in the judgment.

Such was the state of affairs at the time of the election. Mr O'Mahony had the comfort of an additional €6,349.00 available to him if required in order to deal with items of spending that might exceed the fund available to the notice party. The evidence establishes that in fact only a portion of this was actually used, hence the return which was made to the commission demonstrating election expenses incurred by the election agent of €21,430.00. The amount assigned to the party was shown as €15,546.00. The documentary evidence supporting this is to be found in a fax of 19^th December, 2002. That was the eve of the final date for making returns to the Standards in Public Office Commission. The evidence is that there was frenetic activity on the part of Mr O'Mahony in respect of the making of the return until late into the night of Thursday the 19^th January. Prior to then he had had many discussions with Mr Dolan concerning the amount of money which was to be reassigned as unspent out of the contingency fund of €6,349. He was not in a position to give Mr Dolan accurate figures in that regard until he had assembled all of the information. A fax consisting of the cover sheet and sixteen further pages was sent on the 19^th. Using the same fax header sheet another fax was sent on the 20^th although dated the 19^th and this time fifty five additional pages were included. The body of the fax sheet contains the following:

"Hugh

Please find attached drafts.

Please note amount of assigned to party amounts for each.

Please also see attached letters that we propose to send with returns.

Regards

Ger"

The final version of the return was sent under cover of the fax sheet on the 20^th December, 2002. There is a small discrepancy of €35.00 between the figures sent on the 19^th December and those on the 20^th. That was explained by Mr O'Mahony as being a mis-tot or incorrect calculation. In any event it is said that the reassignment of the monies from the contingency fund which were not expended by the notice party was brought about by agreement between Messrs O'Mahony and Dolan and is evidenced by the fax sheet of the 19^th December, 2002.

I have set out the position in considerable detail in order to demonstrate that at national level the Cork South Central constituency was regarded as marginal long before the election was called. It was always included in the list of those constituencies which would have a contingency fund to supplement the 50% of spend available to the candidates. It may appear somewhat odd that the poll topper and favourite to succeed was the candidate to use some of this contingency fund rather than the others but that is the evidence which is uncontroverted.

It is now necessary to examine the above facts in the light of the petitioners' complaints and the relevant legislation.

The Alleged Overspend

I have already reproduced the petitioners' complaints concerning what is described as the first alleged overspend. It proceeds on the basis that the only valid assignment which was made by the notice party in favour of Fianna Fáil was the formal written one amounting to €19,046. The return made by the election agent shows an expenditure of €21,430 on the part of the notice party. Thus there is an alleged overspend of €2,384.

That analysis is fallacious. Even if one proceeds on the basis that the petitioners' argument is correct and that the only assignment which was valid was that which assigned €19,046.00 to the party, they have not demonstrated an overspend of the aggregate permitted amount of €38,092. The analysis of the figures proceeds on the basis that the entire of the €19,046.00 which was assigned to the party was expended by it on the notice party. That manifestly was not so since the return, which is not controverted, shows that only €5,608.19 was so expended. Thus there was a combined spend of €27,038.19 by the notice party and Fianna Fáil which fell below the upper limit of €38,092.

I am of opinion that, having regard to the wording of s.32 of the Act, it would be necessary for the petitioners to demonstrate that there had been an over-expenditure in excess of the aggregate amount which is permitted under s.32 in order to sustain the petition. That is not the case because the evidence demonstrates an under-expenditure of well in excess of €10,000.

The approach of the Standards in Public Office Commission on this topic is precisely the same. At paragraph 2.17 of its published guidelines it states

"The combined expenditure of the candidate by the candidate's election agent (including authorised persons) and the national agent of the party (including authorised persons) must remain within the statutory spending limit of the candidate."

Such being the case it is, strictly speaking, unnecessary for me to proceed further since this is determinative of the complaint made. I will do so for the sake of completeness.

Even if I am wrong in my approach and all the petitioners have to demonstrate is that the notice party exceeded that portion of the expenses which remained after his 50% assignment in favour of Fianna Fáil regardless of the amount spent by the party, I am not satisfied that that case has been made out either. Such an approach would require me to hold that the only valid assignment was the formal one executed in March, 2002. There is no doubt but that if the only valid assignment was the formal one (which I have reproduced in the course of this judgment) then undoubtedly there was an expenditure in excess of the permitted €19,046.

Under s.32(1)(b) an assignment from a candidate in favour of a political party must be in writing. It is not sufficient that such an assignment be evidenced in writing. The actual assignment itself must be in writing. The formal assignment undoubtedly fulfils that requirement. It is said, however, that there was at all material times an agreement between Mr Dolan and Mr O'Mahony acting as agents of their respective principals, that a portion of that would be reassigned and was in fact reassigned to the candidate so as to provide the contingency fund. There is no requirement under the Act that such a reassignment from the party to the candidate must be in writing. It would, of course, be preferable from an evidential point of view if such reassignment had the same clarity and formality attached to it as the original assignment. The existence of such a document might well have obviated a lot of the difficulties which were presented in this case. However, I am satisfied on the evidence that it was at all times understood and agreed between the two agents that such reassignment was to be the case. Insofar as documentary evidence of such an arrangement is required it is found in the spreadsheets which were put in evidence and the explanations attendant thereon.

The final assignment which was dealt with by means of the fax of the 19^th/20^th December, 2002, appears to me to conform with the statutory requirements and in effect assigned the unspent portion of the contingency fund back to the party.

It has to be said that there were aspects of this whole transaction which were less than satisfactory when viewed in the context of the Act and what it seeks to achieve. In fairness to Mr Dolan at the conclusion of his evidence he effectively accepted that. He was not prepared to accept Mr Murphy S.C.'s description of it as a mess but he did concede that the whole transaction would have been a lot better if it were done differently. He said "certainly it would be a lot better if it was done differently, I have no doubt about that. It would be easier to understand, I have no doubt about that".

The formal assignment executed by the notice party complied in every respect with the legislation. It is a document which is easy to read and to understand and it speaks for itself as to its effect.

The reassignment leading to the creation of the contingency fund required oral evidence to be given by the two persons who made that arrangement and the only documentary evidence of it was to be found by reference to spreadsheets and the interpretation of manuscript notations thereon. That is a less than satisfactory way of dealing with a matter which, if petitions of this sort are to be avoided, ought to be crystal clear and not require explanation of the type which was necessary in this case. The ultimate reassignment which was effected by the transmission of the fax on the 20^th December, 2002, might also have been done in a more satisfactory way.

I have little doubt but that at least some of these difficulties arose from the fact that new legislation was being applied at a general election for the first time and that matters were rendered more complicated because of the decision in Kelly's case. I do not underestimate the difficulties which Mr Dolan had to encounter in endeavouring to obtain the written undertakings from all of the Fianna Fáil candidates throughout the country. However, matters were not helped by the rather covert nature of the arrangements which were being discussed at national level, apparently in breach of the determination made by the Fianna Fáil party national executive to deal with what were perceived as marginal constituencies. Neither were they assisted by the frenetic activity which had to take place on the eve of the last day for making returns to the Public Offices Commission.

If a petition of this sort is to be avoided in the future it would seem to me to be prudent for election agents to ensure that any reassignments made by a party in favour of a candidate who has already made an assignment in favour of the party under s.32 should be equally well documented.

Conclusion

For the reasons which I have stated above this petition is dismissed.