Court told Martin did not overspend

Counsel for the Minister for Health, Mr Martin, has urged the High Court not to make an "extraordinary intervention" in the electoral process by granting disability campaigner Ms Kathy Sinnott's petition to overthrow the result of the May 2002 General Election in Cork South Central.

Nor should the courts allow themselves to be drawn into drafting some sort of election scheme whereby all candidates would be "cloned", Mr Paul Gallagher SC, for Mr Martin, argued.

New legislation limiting the election spend of candidates could never have been intended to permit the courts to overthrow democratic election results after conducting inquiries into "election minutiae", such as whether a Minister rang his special adviser during the election campaign or not, counsel added.

Mr Gallagher denied claims by Ms Sinnott that Mr Martin had exceeded his spending limit of €38,092. In fact, Mr Martin's total spend was €27,038, almost €11,000 below the limit, he said. Even if the court found Mr Martin had assigned half of his limit to Fianna Fáil, the party had only spent €5,608 of that amount on Mr Martin's campaign.

If the court ruled, as Ms Sinnott claimed it should, that Mr Martin should have included in his expenditure statement the costs incurred during the election by the constituency unit office in the Department of Health, this still would not bring him over the spending limit, counsel added. Mr Martin's spend would only exceed the limit if the court decided Mr Martin should have included the costs of the Department unit plus the costs of two special advisers, one of whom had taken her annual leave to work for Mr Martin during the election.

Mr Gallagher submitted to Mr Justice Kelly that, when the Oireachtas introduced the Electoral Act 1997 setting spending limits in election campaigns, it was never intended the legislation should provide for the "micro-control" of elections. Rather, this was a scheme to impose constraints at the macro-level without getting involved in the micro-control of elections, counsel argued. It was an attempt to ensure there were no excess donations which could lead to excess expenditure which in turn could have undesirable consequences.

The legislation didn't seek to intervene in the political process or with the duties of public representatives. He added it would be ideal if all the spending documents related to Mr Martin were recorded in the type of writing that lawyers were used to.

While the legislation required candidates to put in writing any assignment of money to their party, he would not go so far as to say any reassignment of monies had to be set out in terms. While the presentation of documents relating to Mr Martin's reassigning monies to Fianna Fáil was "less than ideal", it was "not a mess" and reflected the fact the party and candidates were struggling with the operation of a new Act.

Counsel was making submissions in the continuing hearing of a petition, brought by Ms Sinnott and Mr Mark Menihane, an elector in Cork South Central, alleging there was an overspend by Mr Martin which had a material effect on the outcome of the election in Cork South Central.

They are seeking a fresh election to be called. Mr Martin denies the claims. Dealing yesterday with the argument by Ms Sinnott that Mr Martin should have included in his spending returns the some €7,000 cost of running the constituency unit office of the Department of Health during the three weeks of the election campaign, Mr Gallagher said the unit was staffed by permanent civil servants, none of whom had played any role in the election campaign.

The Secretary General of the Department had also said the unit staff had carried out their normal duties during the election campaign, counsel added. The court had heard evidence that the unit had processed some 27 queries from Cork South central constituents during the election campaign. Representations would have been made in relation to some of those queries by staff in the unit. Some of the queries would have elicited a positive response, some a negative response. Ms Sinnott appeared to be making the case that a civil servant, in carrying out their normal duties, may prevent damage to a Minister and therefore their work constituted an election expense, counsel said.

Opening submissions on behalf of Ms Sinnott, Mr John Rogers SC, said the legislation required that any monies assigned by a candidates form their spending limit to their political party must be assigned in writing. It was his case that such an assignment must be made prior to the election.

The hearing continues today.