Charlie Farrelly v Kerry County Council
| Jurisdiction | Ireland |
| Judge | Ms. Justice Niamh Hyland |
| Judgment Date | 16 May 2022 |
| Neutral Citation | [2022] IEHC 298 |
| Court | High Court |
| Docket Number | RECORD NO. 2021/34/JR |
and
[2022] IEHC 298
RECORD NO. 2021/34/JR
THE HIGH COURT
Successive voting – Procedure – Local Government Act 2001 Schedule 10 – Applicant seeking to quash a decision of the respondent – Whether the appointments of Councillors were unlawful
Facts: The applicant, Councillor Farrelly, sought to upset the results of an election held by the first respondent, Kerry County Council, whereby it appointed Councillors Sheehy and Kennelly to the board of the second respondent, North, East & West Kerry Development, a LEADER body, following an ordinary meeting on 16 November 2020. The applicant had been nominated for appointment to the board but was unsuccessful in two rounds of voting. He challenged the voting process and sought various declarations and an Order of certiorari quashing the appointment of Councillors Sheehy and Kennelly. The applicant said that the first respondent was not entitled to use the successive voting procedure prescribed by Paragraph 18 of Schedule 10 of the Local Government Act 2001 as no group had been successfully formed as required by Paragraph 18. The applicant submitted that instead of proceeding as required to one - and one only - straight majority vote under Paragraph 12 as it ought to have done, the first respondent proceeded on a “hybrid” basis by purporting to hold successive votes despite Paragraph 18 being inapplicable.
Held by Hyland J that the procedure employed by the first respondent to identify the two members to be appointed was not available in circumstances where the necessary conditions for availing of Paragraph 18 were not met. Hyland J held that no group had nominated a candidate resulting in the appointment of that person without any vote being taken as provided for by Paragraph 18(1)(a). Hyland J found that this step is a necessary precursor to any entitlement to utilise successive voting under Paragraph 18(1)(b). Hyland J held that successive voting may be described as a process whereby one person is appointed in the first round of voting and further rounds of voting then take place in respect of the remaining appointments to be made. Hyland J held that Paragraph 18 only envisages the process in subparagraph (b) being used after a group has appointed a candidate under subparagraph (a) and not in the absence of any such appointment. Accordingly, Hyland J held that the appointment mechanism in subparagraph (b) could not be used where an attempt was made to form a group and nominate a candidate without voting, but that attempt was unsuccessful due to an insufficient number of persons willing to form a group. Hyland J emphasised that the illegality arose, not because of the use of successive voting per se, but because the successive voting that took place was explicitly done pursuant to Paragraph 18(1)(b), which procedure was not available to the respondent in the circumstances. Hyland J found that the appointments of Councillors Sheehy and Kennelly were unlawful.
Hyland J quashed the decision of the first respondent of 16 November 2020.
Application granted.
JUDGMENT of Ms. Justice Niamh Hyland delivered on 16 May 2022
By these proceedings, the applicant, Councillor Farrelly, seeks to upset the results of an election held by Kerry County Council (“the respondent”) whereby it appointed Councillors Sheehy and Kennelly to the board of North, East & West Kerry Development (“NEWKD”), a LEADER body, following an ordinary meeting on 16 November 2020. The applicant had been nominated for appointment to the board but was unsuccessful in two rounds of voting. He challenges the voting process and seeks various declarations and an Order of certiorari quashing the appointment of Councillors Sheehy and Kennelly.
For the reasons set out in this judgment, I find that the procedure employed by the respondent to identify the two members to be appointed i.e. that identified in Paragraph 18(1) of Schedule 10 of the Local Government Act 2001 (“the 2001 Act”), was not available in circumstances where the necessary conditions for availing of Paragraph 18 were not met. Here, no group had nominated a candidate resulting in the appointment of that person without any vote being taken as provided for by Paragraph 18(1)(a). I find that step is a necessary precursor to any entitlement to utilise successive voting under Paragraph 18(1)(b).
Successive voting may be described as a process whereby one person is appointed in the first round of voting and further rounds of voting then take place in respect of the remaining appointments to be made. Paragraph 18 only envisages the process in subparagraph (b) being used after a group has appointed a candidate under subparagraph (a) and not in the absence of any such appointment. Accordingly, the appointment mechanism in subparagraph (b) could not be used where, as in the instant situation, an attempt was made to form a group and nominate a candidate without voting, but that attempt was unsuccessful due to an insufficient number of persons willing to form a group.
I should emphasise that the illegality arose, not because of the use of successive voting per se, but because the successive voting that took place was explicitly done pursuant to Paragraph 18(1)(b), which procedure was not available to the respondent in the circumstances. In those circumstances, I find the appointments of Councillors Sheehy and Kennelly were unlawful.
Contrary to the submissions of the respondent, my conclusion is not affected by the fact that, had the respondent proceeded under the provisions of Paragraph 12 of Schedule 10 to the Act, it would in my view have been entitled to employ successive voting. This is because nothing in Paragraph 12 precludes successive voting where the elected members are appointing two or more persons to a body. The only relevant obligation in Paragraph 12 is the obligation to determine an act by simple majority. That obligation is not breached by having successive rounds of voting on each person appointed to a body.
However, the respondent did not use the procedure under Paragraph 12 but rather explicitly relied upon the Paragraph 18 procedure. Requirements of legal certainty and transparency dictate that, where a process identified as applicable to an appointment of members to a body is deemed unlawful, the decision resulting from that process cannot be treated as lawful. This is so even though the steps taken mirror the steps in a different process otherwise available to the respondent.
The applicant is an elected member of the respondent. In that capacity he attended an ordinary meeting of the respondent on 16 November 2020. Item number nine on the agenda was the nomination of two members to the board of NEWKD (North, East and West Kerry Development group), a LEADER group. LEADER is an EU programme the aim of which is to involve local actors in the development of their own regions by forming Local Action Groups to implement initiatives. Those local action groups are of considerable importance, particularly in rural communities, as, amongst other functions, they decide upon the disbursement of significant amounts of funds for community purposes.
Three candidates were put forward for nomination to the two positions – Councillor Sheehy, Councillor Kennelly, and the applicant. Ordinarily, voting at meetings of elected members of the respondent is regulated by Paragraph 12 of Schedule 10 of the 2001 Act. However, Paragraph 12 envisages that decisions may be made otherwise than by the process prescribed by Paragraph 12 where other procedures are provided for in the Act. The procedure identified in Paragraph 18 is one such example. Paragraph 18(3)(k) of Schedule 10 provides that where, inter alia, an appointment is to be made to the board of a LEADER group, in this case NEWKD, the elected members are entitled to use the procedure established by Paragraph 18(1) of Schedule 10.
Under the Paragraph 18 procedure, a group comprising a number of members equal to the total number of members present divided by the number of nominations to be made (to the nearest whole number) can nominate an appointee without any vote being taken. In this case, as I explore in more detail below, the Paragraph 18 process was identified as the applicable procedure. 27 members were present when the agenda item requiring appointments to NEWKD was reached, with the terms of Paragraph 18 requiring a group of 14 to select one of the nominees without a vote. Paragraph 18 envisages that the remaining appointments are to be made successively by the other elected members who are not members of such a group. Although attempts were made to form a group on the day of the meeting, the parties agree that a group was not successfully formed within the meaning of Paragraph 18 since 14 persons could not be identified to select a candidate.
After some discussion as to the appropriate process to be deployed in the situation where no group had been formed, a vote was taken where simple majority voting was employed to select a member for nomination and each elected member had one vote. Councillor Sheehy received 17 votes, Councillor Kennelly received no votes and the applicant received 9 votes. Councillor Sheehy was declared nominated to the board of NEWKD. A further round of voting was held, with all elected members who had previously voted, voting again. On this occasion Councillor Kennelly received 16 votes and the applicant received 10. Councillor Kennelly was declared nominated to the board of NEWKD. The applicant immediately registered his strong dissatisfaction with the process used.
In correspondence exchanged between the solicitors for the applicant and respondent, the applicant contended that the respondent had impermissibly used the Paragraph 18...
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