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Judgment
Title:
Doherty -v- Government of Ireland & anor
Neutral Citation:
[2010] IEHC 369
High Court Record Number:
2010 959 JR
Date of Delivery:
11/03/2010
Court:
High Court
Judgment by:
Kearns P.
Status:
Approved

Neutral Citation Number: [2010] IEHC 369

THE HIGH COURT

JUDICIAL REVIEW

2010 959 JR




BETWEEN

PEARSE DOHERTY
APPLICANT
AND

GOVERNMENT OF IRELAND, ATTORNEY GENERAL

RESPONDENTS
AND

DÁIL ÉIREANN

NOTICE PARTY

JUDGMENT of Kearns P. delivered the 3rd day of November, 2010

By Order of the High Court (Peart J.) made on the 12th July, 2010 the applicant was given leave to apply by way of an application for judicial review for the following reliefs:-

      (i) A declaration that in view of the duration of the vacancy for membership of the Dáil in the Donegal South West constituency and the extent to which its electors and population are presently under-represented, the Government is under a duty not to oppose motions put down by others to have the writ moved for a by-election there.

      (ii) An order directing the Government not to oppose any such motion that may be moved.

      (iii) Further and other relief.

By consent of the parties, an additional relief was sought further to notice of motion dated the 18th October, 2010 as follows:-
      (2) A declaration that there has been excessive delay in filling the said vacancy since it occurred on 6th June, 2009.
The grounds set out in the Statement to ground the application for judicial review are elaborated in the following simple terms:-
      "In the light of the Constitution's affirmation of a "democratic State" (Art. 5) and the requirement that, in any constituency, there shall be "not less than one member for 30,000 of the population" (Art. 16.2.2), there has been excessive delay in filling the said vacancy since it occurred on 6th June, 2009. On account of existing Dáil arithmetic, the only realistic prospect of getting this vacancy filled is for the Government (which effectively controls the Dáil) at least not to oppose a motion to that effect, in accordance with s. 39(2) of the Electoral Act, 1992. In somewhat different circumstances, leave for this type of relief was granted in Dudley v. An Taoiseach et al [1994] 1 I.L.R.M. 321."
Leave having been granted by the High Court, it is to say the least surprising that no application was brought by or on behalf of the respondents to set aside the leave granted given that the main ground relied upon by the respondents herein is that the matters in issue are non-justiciable by reason of the doctrine of separation of powers.

However, a lengthy Statement of Opposition was filed on behalf of the respondents, contending, inter alia:-

      (1) The pleas and contentions of the applicant in relation to provisions of the Constitution, section 39(2) of the Electoral Act 1992 and the judgment of the High Court in Dudley v. An Taoiseach [1994] 1 I.L.R.M. 321 concern matters of law and the respondents make no admissions in respect thereof.

      (2) Without prejudice to the foregoing:-


        (i) It is denied that Article 16.2.2 of the Constitution imposes a requirement that, in any constituency, there shall be not less than one member for 30,000 of the population as alleged. Article 16.2.2 of the Constitution provides that "the number of members shall from time to time be fixed by law, but the total number of members of Dáil Éireann shall not be fixed at less than one member for each thirty thousand of the population, or at more than one member for each twenty thousand of the population".

        (ii) It is denied that the provisions of the Constitution upon which the applicant relies and/or section 39(2) of the Electoral Act 1992 and/or the judgment of the High Court in Dudley v. An Taoiseach [1994] 1 I.L.R.M. 321 provide any basis for the reliefs sought or any relief.

        (iii) . . .

        (iv) At the hearing of these proceedings, the respondents will rely upon inter alia, the provisions of the Constitution, (including Articles 5, 6, 15, 16, 28, 29, 34, 37, 46 and 47 thereof and section 39(2) of the Electoral Act 1992. In particular but without prejudice to the generality of the foregoing:-

            (a) the respondents will rely upon Article 16.7 of the Constitution which provides that "subject to the foregoing provisions of this Article, elections for membership of Dáil Éireann, including the filling of casual vacancies, shall be regulated in accordance with law";

            and

            (b) the respondents will rely upon section 39(2) of the Electoral Act 1992 which was enacted pursuant to and in accordance with, inter alia, Article 16.7 of the Constitution and provides as follows: "where a vacancy occurs in the membership of the Dáil by a person ceasing to be a member otherwise than in consequence of a dissolution, the Chairman of the Dáil (or, where he is unable through illness absence or other cause to fulfil his duties or where there is a vacancy in the Office of Chairman, the Deputy Chairman of the Dáil) shall, as soon as he is directed by the Dáil so to do, direct the Clerk of the Dáil to issue a writ to the returning officer for the constituency in the representation of which the vacancy has occurred directing the returning officer to cause an election to be held of a member of the Dáil to fill the vacancy mentioned in the writ.”

            (v) The Constitution expressly recognises that there may be casual vacancies in the membership of Dáil Éireann but does not impose any timeframe within which such vacancies must be filled; rather, the Constitution provides that it is a matter for the Oireachtas to regulate the filling of casual vacancies by way of legislation. The power to regulate the filling of casual vacancies which the Constitution confers upon the Oireachtas encompasses, inter alia, the power to regulate the holding of elections to fill such vacancies and the timing of the holding of such elections.

            (vi) In accordance with the provisions of the Constitution (including, in particular, Article 16.7 thereof), the Oireachtas enacted section 39 (2) of the Electoral Act 1992 to regulate the filling of casual vacancies in the membership of Dáil Éireann by persons ceasing to be members otherwise than in consequence of a dissolution of Dáil Éireann. By virtue of that legislative provision, it is a matter exclusively for Dáil Éireann to determine when to direct the Chairman of the Dáil to direct the Clerk of the Dáil to issue a writ to the returning officer for the constituency in the representation of which the vacancy has occurred directing the returning officer to cause an election to be held of a member of the Dáil to fill the vacancy mentioned in the writ.

            (vii) The respondents have not failed to fulfil any obligation under the Constitution or otherwise acted in breach of the Constitution; further the respondents have not failed to fulfil any statutory obligations or otherwise acted in breach of such obligations.

            (viii) The Court should not grant the reliefs claimed or any relief having regard to, inter alia, the provisions of the Constitution (including Articles 15 and 16 of the Constitution and the provisions of the Constitution concerning the separation of powers between the organs of Government established by the Constitution and the mutual respect as between those organs of government) and section 39 (2) of the Electoral Act 1992. Further, the Court should not grant relief the effect of which would be to constrain the Government in the exercise of its functions under the Constitution and/or constrain members of the Government in relation to voting in the Dáil and/or imposing on such members a requirement to exercise their votes in a particular manner.

            (ix) The claim of the applicant herein entails a fundamentally misconceived application to the Court to ignore and/or amend legislation enacted by the Oireachtas in accordance with the Constitution, to impose impermissible constraints and/or requirements on the Executive organ of government established by the Constitution, to breach the separation of powers which is mandated by the Constitution and to ignore and/or amend the provisions of the Constitution, including, in particular, Articles 15 and 16 thereof."

The remainder of the Statement of Opposition includes a denial that there has been excessive delay in filling the vacancy for membership of Dáil Éireann in the Donegal South West constituency since the vacancy occurred on the 6th June, 2009. The Statement of Opposition further relates that on the 29th September, 2010, the Minister of State at the Department of An Taoiseach, Mr. John Curran T.D., informed Dáil Éireann on behalf of the Government that it is the intention of the Government to move the writ for the by-election to fill the vacancy for membership of Dáil Éireann in the Donegal South West constituency in the first quarter of 2011. In those circumstances, and without prejudice to the other pleas contained in the statement of opposition, it is contended that the proceedings are now moot and unnecessary and that there is no basis for granting the reliefs sought against the respondents.

At the commencement of the hearing, counsel on behalf of the applicant advised the Court that no mandatory order was sought directing the Government either to put down or not to oppose a motion put down by others to have the writ moved for the by-election. Put another way, the applicant confined the relief sought to one of seeking a declaration, by reference to his constitutional rights, that there has been excessive delay in filling the said vacancy since it occurred on the 6th June, 2009. There was no suggestion on behalf of the respondents that the Government was not capable of being enjoined in the proceedings as the relevant organ of the State with power and responsibility to either move or not resist a motion in the Dáil to convene a by-election, although of course, the respondents strongly argued that no justiciable issue arose because of the doctrine of separation of powers.

BACKGROUND
Senator Pearse Doherty, the applicant in this matter, is a civil engineering technician from Letterkenny in Co. Donegal and is registered as an elector for the Dáil constituency of Donegal South West. The constituency in question is a three seat constituency but since the 6th June, 2009 one of the three seats there has been vacant as a result of its occupant having been elected to the European Parliament. From time to time efforts had been made in Dáil Éireann to move a writ for the by-election, all of which had been resisted by the Government, such initiatives being voted down on the 2nd July, 2009, the 5th May, 2010 and the 29th September, 2010. When making his affidavit on the 12th July, 2010 (some two months before the Minister of State at the Department of An Taoiseach indicated to Dáil Éireann that the by-election would be moved in the first quarter of 2011), the applicant asserted that there was no realistic prospect of the Government ceasing to resist such motions for the foreseeable future. He believed that, on account of the Government ‘whipping control’ of many Dáil members, there was little or no prospect of the writ being moved for so long as it continued to be opposed.

In the last general election, the following had been elected to fill the three seats in that constituency: Mary Coughlan (now the Tánaiste) Dinny McGinley T.D. and Pat "The Cope" Gallagher, now an M.E.P. On his election to Brussels/Strasbourg on the 6th June, 2009 Mr. Gallagher's seat became vacant. With a population of just over 71,000, the 30,000 ceiling provided for in Article 16.2.2 and Article 16.2.3 of the Constitution has, according to the applicant, been exceeded to a very considerable extent. Endeavours had been made by Sinn Féin members of the Dáil to move the writ with the outcomes already referred to. Under Dáil standing orders, a motion to move the writ could not be tabled again for another six months from the previous occasion except when the Ceann Comhairle otherwise agreed. The applicant asserted that, as a result of discussions he had had with many individuals in the constituency, there was a great level of dissatisfaction with the current exceptional under-representation of the constituency in Dáil Éireann, a dissatisfaction which was exacerbated by the fact that one of its two T.D.'s has extremely onerous responsibilities as Tánaiste and Minister for Education, factors which inevitably must encroach on her time and availability to engage in the normal constituency work of a T.D. He deposed to his belief that in other comparable countries there is no equivalent resistance by Governments to holding by-elections when vacancies occur in their parliaments. In his affidavit sworn on the 12th July, 2010 the applicant avers that:-

      "For instance, the general practice in relation to vacancies at the House of Commons is to move a writ within three months of the vacancy arising. There have been exceptional instances of seats remaining vacant longer than six months before a by-election, and seats are sometimes left vacant towards the end of a Parliament, to be filled by the subsequent general election. In other jurisdictions governments are obliged to hold by-elections within a prescribed time period. By way of example, by-elections in France are held for the Lower House of Parliament and in the Upper House (in the case of resignation) within three months of a vacancy occurring. In the Czech Republic, by-elections are held within 90 days of a vacancy occurring for the Upper House of Parliament. Canada requires by-elections to be called for the Federal Parliament within six months of a seat becoming vacant; however, there is no limit on how far in the future the actual date of the by-election may be set. It would appear that the majority of other European electoral systems use the list system to replace parliamentary vacancies when they arise. In comparison with other countries that use by-elections to fill vacancies, Ireland would seem to be the only country whereby inordinate delays arise in holding by-elections."
In a further affidavit, Sinn Fein member Mr. Caoimhghin Ó Caolain T.D., confirmed the unsuccessful attempts made by his and other parties in bringing motions for the issue of the writ for the by-election in Dáil Éireann. In relation to Mr. Curran's statement that it was the intention of the government to hold the by-election in the first quarter of 2011, Mr. Ó Caolain pointed out that a by-election held on that basis might not take place until April 2011, almost two years from the occurrence of the vacancy in Donegal South West, that being on the assumption that the government did not decide on a further delay once the first quarter of 2011 was reached. Mr. Ó Caolain referred to research he had undertaken in Dáil and political records as a result of which he ascertained that during the period 1922 to 1937 there were approximately 33 by-elections in which all the vacancies were filled within six months. There have been 88 by-elections since the enactment of the Constitution. In almost all instances the vacancies were filled within six months. One of the longest delays was the delay in holding the by-election in Dublin South which was held in June 2009, some eleven months from the vacancy. He deposed to his belief that the delay in Donegal South West was therefore considerably longer even than the very lengthy delay in a previous by-election within the present Dáil Éireann under the present Government, thereby compounding the unequal treatment of Donegal South West electors. The delay in moving the writ for the current vacancy is the longest in the history of the State. As the present Dáil first met on the 14th June, 2007, it must be dissolved by the 13th June, 2012. The vacancy occurred in June 2009, at a point where the Dáil had potentially three further years to run. Almost half of that period has now expired without the vacancy being filled and, if the government's announced plans are carried out, well over half that period will have expired without the vacancy being filled. He stated his belief that such a failure results in a denial of democratic rights. He referred to the example of Zimbabwe where some election petitions from the 2000 parliamentary elections were pending in the courts for the full term of office of parliamentarians, thus nullifying the right to a legitimate determination of a contested or vacant seat. While not suggesting that the situation in Ireland had reached the same level, he believed the principle remained the same, namely that a failure to address the vacancy within a reasonable time results in a denial of democratic rights.

In an affidavit sworn by Mr. John Curran, Minister of State at the Department of An Taoiseach, he confirmed that on the 29th September, 2010 he informed Dáil Éireann on behalf of the government that it is the intention of the government to move the writ for the by-election to fill the vacancy for membership of Dáil Éireann in the Donegal South West constituency (and the writs for two other by-elections) in the first quarter of 2011. He stated:-

      "I referred to the severe and economical fiscal challenges facing the country and the Government and explained that until Christmas the Government would be working to ensure that a budget is brought forward which is fair to the citizens of the State and helps to further its economic recovery and also would be working to address the problems in the banking system. I explained the view of the Government that to divert attention and energy to holding by-elections while those problems are being addressed could be damaging to the economy."
In her affidavit sworn on the 14th October, 2010 Ms. Riona Ni Fhlanghaile, Principal Officer of the Department of Environment, Heritage and Local Government, stated that the total number of members of Dáil Éireann presently fixed by law is 166 and when that figure is divided into the total population number as recorded in the 2002 census (3,917,203) the result is 23,598, a situation that complies with the requirement of the Constitution as to ratios..

In his affidavit sworn on the 10th October, 2010, Sinn Fein member Mr. Aengus O' Snodaig, TD replied to the affidavit sworn by Mr. John Curran and emphasised that the statement made by Mr. Curran to Dáil Éireann in no way equated to proffering information to the Court as to the reasons for the delay. He believed that had Mr. Curran made the same statement to the Court it would have exposed him to cross examination which would have allowed the entirely “manufactured nature of the excuses for the non- holding of the by-election” to be exposed. He stated when the first Dáil debate on the writ for the Donegal South West by-election took place in July 2009, Tánaiste Mary Coughlan made no attempt to suggest that a by-election would distract the Government from its important work of dealing with the economic crisis. When the second attempt to move the writ took place in May 2010, Mr. Curran on behalf of the Government did invoke current economic and financial difficulties as a reason for not moving the writ. Mr. O' Snodaig went on to state that the excuses offered for not holding the by-election were “wholly devoid of merit” and flew in the face of the electoral history of the previous two years. Since the economic crisis occurred in September 2008, there had been nationwide local elections to 34 City and County Councils in June 2009 as well as 5 Borough Councils and 74 Town Councils. There had been a by-election in June 2009 in Dublin South and a nationwide constitutional referendum in October 2009. Mr. O' Snodaig stated that, by applying the same reasoning offered to Dáil Éireann, the Government could well have chosen to postpone the Dublin South by-election on the basis of the economic crisis, but did not do so. He stated that there was therefore no evidence whatsoever that two nationwide electoral processes in June and October 2009 had any measurable effects in terms of “taking the eyes of the Government and [political] parties off the recovery of the economy”. Mr. O’Snodaig further contended that, even accepting Mr. Curran’s logic, it had to be borne in mind that the budget will take place on the 7th December, 2010 and, that being so, there was no identified reason why the by-election could not be called after that date or why it was necessary to wait until the end of the first quarter of 2011. In Mr. O'Snodaig’s view, there was clearly no guarantee that the banking crisis and economic crisis would be any better by then and indeed they might well be worse. Finally, he highlighted that Mr. Curran’s statements were at variance with repeated statements from Government that the economic crisis was under control and being managed competently and that “the worst is over . . . we have turned a corner” as stated by Minister for Finance Brian Lenihan TD in December 2009.


RELEVANT PROVISIONS OF THE CONSTITUTION AND RELEVANT STATUTORY PROVISIONS
Article 5 of the Constitution states:-

      "Ireland is a sovereign, independent, democratic state"
Article 16.1 of the Constitution states:-
      "2° (i) All citizens, and

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

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


      4° No voter may exercise more than one vote at an election for Dáil Éireann, and the voting shall be by secret ballot."
Article 16.2 of the Constitution states:-
      "1° Dáil Éireann shall be composed of members who represent constituencies determined by law.

      2° The number of members shall from time to time be fixed by law, but the total number of members of Dáil Éireann shall not be fixed at less than one member for each thirty thousand of the population, or at more than one member for each twenty thousand of the population.

      3° The ratio between the number of members to be elected at any time for each constituency and the population of each constituency, as ascertained at the last preceding census, shall, so far as it is practicable, be the same throughout the country.

      4° The Oireachtas shall revise the constituencies at least once in every twelve years, with due regard to changes in distribution of the population, but any alterations in the constituencies shall not take effect during the life of Dáil Éireann sitting when such revision is made.

      5° The members shall be elected on the system of proportional representation by means of the single transferable vote.

      6° No law shall be enacted whereby the number of members to be returned for any constituency shall be less than three."

Article 16.3 to 16.7 of the Constitution states: -
      3. 1° Dáil Éireann shall be summoned and dissolved as provided by section 2 of Article 13 of this Constitution.

        2° A general election for members of Dáil Éireann shall take place not later than thirty days after a dissolution of Dáil Éireann.

      4. 1° Polling at every general election for Dáil Éireann shall as far as practicable take place on the same day throughout the country.

        2° Dáil Éireann shall meet within thirty days from that polling day.

      5. The same Dáil Éireann shall not continue for a longer period than seven years from the date of its first meeting a shorter period may be fixed by law.

      6. Provision shall be made by law to enable the member of Dáil Éireann who is the Chairman immediately before a dissolution of Dáil Éireann to be deemed without any actual election to be elected a member of Dáil Éireann at the ensuing general election.

      7. Subject to the foregoing provisions of this Article, elections for membership of Dáil Éireann, including the filling of casual vacancies, shall be regulated in accordancewith law."

Section 39(2) of the Electoral Act, 1992 provides:-

      "Where a vacancy occurs in the membership of the Dáil by a person ceasing to be a member otherwise than in consequence of a dissolution, the Chairman of the Dáil (or, where he is unable through illness, absence or other cause to fulfil his duties or where there is a vacancy in the office of Chairman, the Deputy Chairman of the Dáil) shall, as soon as he is directed by the Dáil so to do, direct the Clerk of the Dáil to issue a writ to the returning officer for the constituency in the representation of which the vacancy has occurred directing the returning officer to cause an election to be held of a member of the Dáil to fill the vacancy mentioned in the writ."
It is common case between the parties that section 39 of the Electoral Act 1992 is the legislation designed to exercise the discretion relating to the filling of casual vacancies conferred by Article 16.7 of the Constitution.

Reference might also usefully be made at this point to the statutory provisions relating to casual vacancies which arise in Seanad Éireann. Section 56(1) of the Seanad Electoral (Panel Members) Act 1947 provides:-

      "Where the Minister receives from the Clerk of Seanad Éireann a notice of a casual vacancy, the Minister shall, as soon as conveniently may be and in any case not more than one hundred and eighty days after receiving the notice, make an order (in this Act referred to as a Seanad bye-election order) directing an election to be held in accordance with this Part of this Act to fill the vacancy and stating the panel and sub-panel in respect of which the vacancy occurred and appointing for the purposes of the election the times and places mentioned in whichever of the two next following subsections of this section is applicable."
Given that the applicant also placed reliance on s. 2 of the European Convention on Human Rights Act 2003, it is important to set out the terms of that section which provide:-
      "2(1) In interpreting and applying any statutory provision or rule of law, a court shall, insofar as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.

      (2) This section applies to any statutory provision or rule of law in force immediately before the passing of this Act or any such provision coming into force thereafter."

The obligation which the applicant contends the State owes under the Convention provision is set out in Protocol No. 1 of the European Convention of Human Rights which provides:-
      "Article 3
      Right to free elections
      The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” (Emphasis added)

THE ISSUES RAISED

Counsel on behalf of the applicant submitted that the issues in the case could be summarised under the following five headings:-

      1. Are the proceedings moot or unnecessary by reason of Minister John Curran’s statement to the Dáil on the 29th September, 2010?

      2. Is the matter non-justiciable by reason of seeking to constrain members of the Government in terms of how they vote in Dáil Éireann?

      3. Is there an obligation to fill the vacancy within a reasonable time?

      4. If there is such an obligation, is it entirely a matter for Dáil Éireann and/or the Government, and therefore non-justiciable by reason of the doctrine of separation of powers?

      5. Is there an obligation to fill the vacancy within a reasonable time, and if that question is justiciable, has there been an excessive delay in filling the vacancy in Donegal South West having regard to constitutional and statutory principles?

It seems to me, however, that the matter which the court must first address is whether the issues raised in this case are justiciable. In doing so I appreciate that, as pointed out by counsel for the respondents, this application is not a challenge to the constitutionality of the Electoral Act 1992, or any provision of that Act.


JUSTICIABILITY
When the hyperbole associated with many of the submissions advanced on behalf of both the applicant and the respondents is dispensed with in this case, particularly those on behalf of the respondent which suggested that it would “tear asunder” the tripartite division of powers under the Constitution for the Court to express any view on the matters raised, it seems to me that a fairly basic and simple question requires to be addressed. As the provisions of Article 16.7 of the Constitution delegate to the Oireachtas the power to legislate for elections to membership of Dáil Éireann, including the filling of casual vacancies, and as the Oireachtas has purportedly executed that power by enacting s. 32 of the Electoral Act 1992, does the court have a function in determining whether the provisions of section 39(2) require to be interpreted as meaning that a by-election is to be held within a reasonable time, or, as the respondents submit in the alternative, the terms of the subsection leave the Dáil at large as to whether and when it shall direct the Clerk of the Dáil to issue a writ directing the returning officer to cause an election to be held of a member of the Dáil to fill the vacancy mentioned in the writ.

A useful starting point is to consider the approach taken to this issue in the High Court by Geoghegan J. in Dudley v. An Taoiseach [1994] 2 I.L.R.M. 321.

In that case the applicant was a student residing in the Dublin South Central constituency. Some fourteen months after the sitting Dáil Deputy, John O’Connell resigned his Dáil Éireann seat, the vacancy had not been filled by a by-election. Numerous attempts in the Dáil to have the writ moved for a by-election had been successfully resisted by the Government and its supporters. The applicant argued that, as a registered elector in the constituency, his rights to vote at common law, by statute and under the constitution were being infringed.

At p. 323, Geoghegan J. stated:-

      “Having regard to Article 16 of the Constitution and in particular s. 7 of that Article which envisages that casual vacancies will be filled and that the filling of them shall be regulated in accordance with law, there must, I think, be at least an arguable case that there is a constitutional obligation to hold a by-election within a reasonable time of a vacancy occurring.”

Geoghegan J. then went on to consider the very grounds of objection which had been raised by the respondents in the instant case. In a later passage on p. 323 he stated:-

      "But even if I am right in both of those propositions the question arises, should leave be given for judicial review having regard to the separation of powers and having regard also to the particular proposed respondents. (In that case Dáil Éireann had also been joined as a party by the applicant). In order to address that question it is necessary to review the procedure prescribed by law for the holding of a by-election. That is governed now by s. 39(2) of the Electoral Act 1992."

Having recited the subsection in full, Geoghegan J. continued:-

      "It follows from this that a by-election cannot be held until a writ has been issued to the returning officer for the constituency. As no such writ has yet issued the returning officer is not at fault in failing to hold a by-election. The writ to the returning officer is issued by the clerk of the Dáil. But the clerk of the Dáil is not at fault either in not issuing the writ to the returning officer since under the subsection he can only do so if directed by the Dáil itself. The Dáil has not given such direction. The only machinery by which the Dáil can give such direction is by a motion laid before the Dáil by a member of the Dáil and then carried by a majority of the Dáil. In my view, declaratory relief as sought by way of judicial review is not obtainable as against Dáil Éireann because such relief should only be granted where it could be followed up either in the same proceedings or in some other proceedings by an enforceable order. No enforceable order can be made by the courts as against Dáil Éireann as such. Dáil Éireann can only give the direction if the majority of the members vote for the motion, but the courts cannot mandamus the body of members of the Dáil as such to vote in a particular way on a particular motion.”
Having expressed those views, Geoghegan J. refused leave for judicial review as against Dáil Éireann, and further refused leave to institute review proceedings against the Taoiseach as he did not see that the Taoiseach was under a personal responsibility in relation to any of the matters complained of. However, Geoghegan J applied quite different considerations to the proposed judicial review proceedings insofar as they were brought against the Government of Ireland. In this regard he stated at p. 324:-

      "As Dáil Éireann cannot move of its own motion, I think that there must be an arguable case at least that the Government of Ireland has a constitutional obligation to set down and support the motions for the issue of a writ for the holding of a by-election after a reasonable time has elapsed from the vacancy arising and that there is also an arguable case that the Government is constitutionally obliged not to impede or oppose such a motion after a reasonable time has elapsed, except in the context of substituting its own motion. As a Minister can be judicially reviewed in the exercise of his powers and functions, there must, I think, be an arguable case that the government can be judicially reviewed in the circumstances of this particular case."
He then proceeded to grant leave to the applicant to bring judicial review proceedings as against the Government of Ireland and the Attorney General. He also directed that Ireland be joined as a respondent.

That application, unlike the present proceedings, does not appear to have proceeded any further, but, perhaps significantly, and just as in the instant case, there was no application brought on behalf of the respondents to set aside the leave which had been granted on the grounds that the issue sought to be determined was non-justiciable.

In considering whether any particular controversy is justiciable, the courts take great care to uphold the principle of the separation of powers and to avoid situations where the court goes beyond its own proper own role in the constitutional framework laid down by the Constitution.

In Maguire v Ardagh (2002) 1 I.R. 385 Keane C.J. noted that the Constitution did not expressly exempt the actions of the Oireachtas or individual members thereof from judicial scrutiny save to the extent specified in Article 15.12 and Article 15.13. Keane C.J. acknowledged that the doctrine of the separation of powers precluded the courts from accepting every invitation to interfere with the conduct by the Oireachtas of its own affairs. Keane C.J. then continued to list specific activities that were non- justiciable, stating as follows at p. 537:

      "Specifically, the courts have made it clear that they will not intervene in the manner in which the House exercises its jurisdiction under Article 15.10 to make its own rules and standing orders and to ensure freedom of debate where the actions sought to be impugned do not affect the rights of citizens who are not members of the House: see the decision of this court in Slattery v An Taoiseach [1993] 1 I.R. 286. It was also held by the former Supreme Court in Wireless Dealers Association v Minister for Industry and Commerce (Unreported, Supreme Court, 14th March, 1956) that the courts could not intervene in the legislative function itself: their powers to find legislation invalid having regard to the provisions of the Constitution arise only after the enactment of legislation by the Oireachtas, save in the case of a reference of a Bill by the President to this court under Article 26. Nor, in general, will the courts assume the role exclusively assigned to the Oireachtas in the raising of taxation and the distribution of public resources, as more recently made clear by this court in T.D. and Others v Minister for Education and Science and Others [2001] 4 I.R. 259”.
A justiciable controversy may, at its simplest, be defined as a dispute capable of litigation in the courts. In Baker v Carr 369 US 186 (1962), the United States Supreme Court held that the issue of justicability should be determined on a case by case basis. It has also been suggested that:-
      "Non-justicability concerns whether a court can with constitutional propriety adjudicate on the matter before it or whether such an adjudication would be an infringement by the court of the role which the Constitution has conferred on it. Essentially the doctrine is concerned with identifying those claims which may be legitimately advanced before a court and those which must be advanced in parliament through the political process. In other words, is it a case for judicial or political relief.” (McDermott, The Separation of Powers and the Doctrine of Non-Justiciability 35 Irish Jurist 280 at p. 280).
Thus controversies surrounding purely political issues or the extent to which the revenue or borrowing powers of the State are exercised or the purposes for which funds are spent are entirely outside the proper role of the court. Thus, in O'Reilly v Limerick Corporation [1989] I.L.R.M. 181, the question as to whether the Oireachtas had adequately provided for disadvantaged groups via its taxation policies was deemed to be non- justiciable.

Similarly, in international relations and the conduct of foreign affairs, the courts have invariably taken the view that controversies which may arise are non-justiciable at the behest of individual citizens as the provisions of Articles 29.1 to Article 29.3 relate only to relations between states and confer no rights upon individuals. (See Horgan v An Taoiseach [2003] 2 I.R. 468).

However, even in this context, the courts have seen fit to intervene when an actual or threatened breach of an individual’s constitutional rights may occur, as in Crotty v An Taoiseach [1987] 1 I.R. 713 where Finlay C.J. stated at p. 774:-

      "The overall provisions concerning the exercise of executive power in external relations do not contain any express provision for intervention by the Courts. There is nothing in the provisions of Articles 28 and 29 of the Constitution, in my opinion, from which it would be possible to imply any right in the Courts in general to interfere in the field or area of external relations with the exercise of an executive power. This does not mean that the executive is or can be without control by the Courts in relation to carrying out executive powers even in the field of external relations. In any instance where the exercise of that function constituted an actual or threatened invasion of the constitutional rights of an individual, the Courts would have a right and duty to intervene."
Equally, in what might be described as a political context, the Supreme Court by a majority decision in McKenna v An Taoiseach (No.2) [1995] 2 I.R. 10 took the view that the question of state funding for referendum campaigns was justiciable. Hamilton C.J. stated, at p. 32, that the case law established the three principles for judicial intervention:-
      "1. The courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions provided that it acts within the restraints imposed by the Constitution on the exercise of such powers.

      2. If, however, the Government acts otherwise than in accordance with the provisions of the Constitution and in clear disregard thereof, the courts are not only entitled but obliged to intervene.

      3. The courts are only entitled to intervene if the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution".

In Murphy v Minister for the Environment [2008] 3 I.R. 438, Clarke J. considered the question of delay in implementing a census. He held that it would not have been practicable to implement the report within the two or three months between publication of census and dissolution of the Dáil. However, at p. 471, he went on to say that if the Oireachtas did not take steps with "the minimum delay", it might be appropriate for the court to intervene:










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