Doherty v Government of Ireland

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 03 November 2010
• Neutral Citation: [2010] IEHC 369
• Date: 03 November 2010
• Docket Number: [2010 No. 959 JR]
• Court: High Court

Doherty v Government of Ireland & AG

[2010] IEHC 369

JUDICIAL REVIEW

BETWEEN

PEARSE DOHERTY

APPLICANT

AND

GOVERNMENT OF IRELAND, ATTORNEY GENERAL

RESPONDENTS

AND

DÁIL ÉIREANN

NOTICE PARTY

[2010] IEHC 369

No. 959 J.R./2010

THE HIGH COURT

CONSTITUTION

Separation of powers

Justiciability - By-election - Delay in moving writ - Whether constitutional obligation to hold by-election within reasonable time of vacancy occurring - Whether government failed to move writ in reasonable time - Ahern v Minister for Industry and Commerce (No 2) [1991] 1 IR 462, MacPharthalain v Commissioners of Public Works [1992] 1 IR 111 and Murphy v Minister for the Environment [2007] IEHC 185, [2008] 3 IR 438 considered; East Donegal Co-operative Ltd v Attorney General [1970] IR 317 applied; Minister for Social Community and Family Affairs v Scanlon [2001] 1 IR 64 and Hanafin v Minister for the Environment [1996] 2 IR 321 followed - Electoral Act 1992 (No 23), s 39(2) - European Convention on Human Rights Act 2003 (No 20), s 2 - European Convention of Human Rights, protocol 1, article 3 - Constitution of Ireland 1937, Article 16 - Relief granted (2010/959JR - Kearns P - 3/11/2010) [2010] IEHC 369

Doherty v Government of Ireland

Facts: The applicant, a senator and a registered elector in Donegal South West, had been given leave to seek a declaration that in view of the duration of the vacancy for membership of the Dail in Donegal South West constituency since June 2009 and the extent to which its electors and population were under-represented, that the Government was in breach of the Constitution. The applicant contended that the Government had failed to move the writ for a by-election and that there had been excessive delay in filling the vacancy in breach of the requirements of the Constitution, pursuant to Articles 5 and 16.2.2 and the provisions of s. 39(2) of the Electoral Act 1992. The respondent contended that the issue was non-justiciable by reason of the doctrine of the separation of powers. The Minister for State at the Department of An Taoiseach had informed the Dail on behalf of the Government that it was the intention of the Government to move the writ for the by-election to fill the vacancy in 2011. The respondents contended that the proceedings were moot.

Held by Kearns P. that to read the Act of 1992 as devoid of any temporal requirement clearly offended the provisions of the Constitution. To read s. 39(2) as being subject to the requirement that a writ had to be moved within a reasonable time did no violence to the express wording of the subsection. Even having regard to ordinary principles of statutory construction, it was well-settled that a statute would not be given an interpretation which was illogical or absurd. S. 39(2) had to be construed as incorporating a requirement that the discretion reserved thereunder be exercised within a reasonable period of time. As to the question of mootness, the Court would not resile from its constitutional obligations. The unprecedented delay in light of the term served by the Government of the day was a significant one. The delay was so inordinate as to amount to a breach of the constitutional rights of the applicants. The on-going failure to move the writ offended the terms and spirit of the Constitution and its framework for democratic representation.

Reporter: E.F.

ELECTORAL ACT 1992 S39(2)

DUDLEY v AN TAOISEACH & ORS 1994 2 ILRM 321 1994/9/2740

CONSTITUTION ART 16.2.2

CONSTITUTION ART 5

CONSTITUTION ART 6

CONSTITUTION ART 15

CONSTITUTION ART 16

CONSTITUTION ART 28

CONSTITUTION ART 29

CONSTITUTION ART 34

CONSTITUTION ART 37

CONSTITUTION ART 46

CONSTITUTION ART 47

CONSTITUTION ART 16.7

CONSTITUTION ART 16.2.3

CONSTITUTION ART 16.1

CONSTITUTION ART 16.2

CONSTITUTION ART 16.3

CONSTITUTION ART 16.4

CONSTITUTION ART 16.5

CONSTITUTION ART 16.6

ELECTORAL ACT 1992 S39

SEANAD ELECTORAL (PANEL MEMBERS) ACT 1947 S56(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS FIRST PROTOCOL

MAGUIRE & ORS v ARDAGH & ORS 2002 1 IR 385

CONSTITUTION ART 15.12

CONSTITUTION ART 15.13

BAKER v CARR 1962 369 US 186

MCDERMOTT THE SEPARATION OF POWERS & THE DOCTRINE OF NON-JUSTICIABILITY 2000 35 IJNS 280

O'REILLY & ORS v LIMERICK CORP & ORS 1989 ILRM 181 1988 DULJ 189 1988/10/2829

CONSTITUTION ART 29.1

CONSTITUTION ART 29.3

HORGAN v AN TAOISEACH & ORS 2003 2 IR 468 2003 2 ILRM 357 2003/26/6139

CROTTY v AN TAOISEACH & ORS 1987 IR 713

MCKENNA v AN TAOISEACH & ORS (NO 2) 1995 2 IR 10

MURPHY & MCGRATH v MIN FOR ENVIRONMENT & ORS 2008 3 IR 438 2008 1 ILRM 112 2007/43/8961 2007 IEHC 185

MCDONALD v BORD NA GCON & AG (NO 2) 1965 IR 217 1966 100 ILTR 89

O'MALLEY v CEANN COMHAIRLE & ORS 1997 1 IR 427 1997/11/3508

AHERN v MIN FOR INDUSTRY & ANOR (NO 2) 1991 1 IR 462 1991 9 ILT 127 1990/6/1411

MACPHARTHALAIN & ORS v CMRS OF PUBLIC WORKS & ORS 1992 1 IR 111 1992/3/806

EASTERN HEALTH BOARD v JUDGE MCDONNELL 1999 1 IR 174 1999/11/2651

MIN FOR SOCIAL COMMUNITY & FAMILY AFFAIRS v SCANLON 2001 1 IR 64

HANAFIN v MIN FOR ENVIRONMENT & ORS 1996 2 IR 321

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD & ORS v AG 1970 IR 317

NATIONAL IRISH BANK LTD (UNDER INVESTIGATION), IN RE 1999 3 IR 145 1999 1 ILRM 321

COMPANIES ACT 1990 S18(A)

ELECTORAL (AMDT) ACT 2005 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS FIRST PROTOCOL ART 3

CLAYTON & TOMLINSON THE LAW OF HUMAN RIGHTS 2ED 2009 PARA 20.35

CLAYTON & TOMLINSON THE LAW OF HUMAN RIGHTS 2ED 2009 PARA 20.37

TIMKE v GERMANY 1996 EHLR 74

REPORT OF THE CONSTITUTION REVIEW GROUP 1996 49

JUDGE MCMENAMIN v IRELAND & ORS 1996 3 IR 100

D (T) (A MINOR) & ORS v MIN FOR EDUCATION & ORS 2001 4 IR 259 2001/5/1050

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

2 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:-

3 (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.

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

5 (iii) Further and other relief.

6 By consent of the parties, an additional relief was sought further to notice of motion dated the 18 ^th October, 2010 as follows:-

7 (2) A declaration that there has been excessive delay in filling the said vacancy since it occurred on 6 ^th June, 2009.

8 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 6 ^th 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."

9 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.

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

11 (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.

12 (2) Without prejudice to the foregoing:-

13 (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".

14 (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.

15 (iii) ...

16 (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:-

17 (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...