Murphy v Minister for Environment

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 07 June 2007
• Neutral Citation: [2007] IEHC 185
• Date: 07 June 2007
• Court: High Court
• Docket Number: [2007 Nos. 2819

MURPHY & MCGRATH v MIN FOR ENVIRONMENT & ORS

BETWEEN

CATHERINE MURPHY AND FINIAN McGRATH

PLAINTIFFS

AND

THE MINISTER FOR THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

AND

BETWEEN

FERGAL MOLLOY

PLAINTIFF

AND

THE MINISTER FOR THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

[2007] IEHC 185

[No. 2819 P/2007]

[No. 3475P/2007]

THE HIGH COURT

CONSTITUTIONAL LAW: General election

ELECTIONS AND REFERENDA: Dáil Éireann

The plaintiffs, independent Dáil deputies, sought to challenge the constitutionality of the ratio of Dáil

deputies to constituency population as disproportionate and not as far as practicable the same throughout the

country. A dispute arose as to the proper interpretation of the term "census" employed in Article 16.2.3 of the

Constitution and the status of preliminary census results released the CSO prior to the General Election in May

2007. The plaintiffs contended that the electoral legislation was rendered unconstitutional by the publication

of the preliminary data in 2006. Five constituencies were more than 10% out from the average. The question also

arose as to whether the Minister had emergency powers to deal with the predicament.

Held by Clarke J. that the sub clauses of Article 16 had to be read harmoniously. Article 16.2.3 designed a definitive

benchmark as to which the proportionality of constituencies was to be determined. The fact that it could be out of

date was an element of this design. The figures contained in a preliminary report were not the population as ascertained

by census. The Oireachtas could not have engaged in the appropriate process in the short period of time between the

release of the final figures in 2007 and the dissolution of the Dáil. An urgent constitutional imperative was on the

Oireachtas to deal with a disparity as a matter of urgency. It was not appropriate to conclude that the Oireachtas had

failed in its obligations. The court could not intervene otherwise. The Minister had no emergency power to deal

with the situation. The Electoral Acts were not rendered immediately unconstitutional by the preliminary census results.

Reporter: E.F.

1. Introduction

2 1.1 There can be little doubt but that the results of the census conducted in April 2006 show very substantial changes not only in the overall population of the State but also in its distribution. In particular it is clear that the population of the constituencies established by law for the purposes of conducting elections to Dáil Eireann have altered in a way which leads to a very significant disparity existing between the proportionality of the population to the numbers of deputies to be elected, at least in certain cases. While it will be necessary to examine the figures in more detail, the scale of the disparity can be gleaned from the fact that the range of population per seat from the highest to lowest is 8,146 and the biggest deviation from the national average is 5,421. Both of those figures have to be seen against the fact that, at a national level, the ratio of population to seats is of the order of 25,000 to 1. In addition five constituencies are more than ten per cent away from the national average with two constituencies being more than ten per cent below that average and three constituencies being that far above average.

3 1.2 The disparities are most glaringly illustrated by the fact that in a number of instances it is possible to point to pairs of constituencies where more deputies are to be elected from the constituency with a lower population.

4 1.3 It is as against that general background that both of these proceedings are commenced. The first proceedings in time were those commenced on 5th April, 2007 by Catherine Murphy and Finian McGrath ("the deputies") who were both members of the 29th Dáil (Deputy McGrath has since these proceedings were heard been re-elected to be a member of the 30th Dáil but Deputy Murphy failed to secure re-election). In the second proceedings the plaintiff ("Mr. Molloy") is a constituent of the Dublin West constituency which is the most underrepresented constituency by reference to the 2006 census. Its population to seat ratio is 21% above the national average.

2. Procedural History

2 2.1 As of the time of commencement of the proceedings by the deputies it was clear that a general election was required to be held within a short number of months. With that in mind management of the case was engaged in to see if it would be possible to have the proceedings concluded prior to the anticipated dissolution of the Dáil. That did not prove to be possible. It should be emphasised that it was never part of the deputies' case that this court had any power or jurisdiction to prevent the general election taking place nor was it part of the deputies' case that the results of a general election conducted on the existing constituencies could or should be overturned. Nonetheless the original urgency of the case was borne of the fact that the deputies claimed to be entitled to orders, some of which, if granted, might have required an immediate or early redrawing of the constituencies. In those circumstances, while unlikely, it was possible that an order could have been made which would have had an effect prior to the dissolution of the Dáil.

3 2.2 Notwithstanding the dissolution of the 29th Dáil it remained a matter of some urgency to have the issues raised resolved not least because of the possibility that, for whatever reason, there might be a further dissolution of the new 30th Dáil resulting in an early general election. If aspects of the case made by the deputies are found to be correct then there is the potential that the court might be required to make orders which could have an effect on the constituencies in which any such fresh general election might be fought. For that reason it was arranged that the full proceedings between the deputies and the defendants ("the State") would be expedited.

4 2.3 In the meantime Mr. Molloy issued his proceedings which are, subject to one point, identical to those brought by the deputies. It proved possible to greatly expedite Mr. Molloy's proceedings so that they could be heard at the same time as the proceedings brought by the deputies. This was facilitated by the fact that there was little or no difference in practice between the bulk of the issues which arose in the two sets of proceedings. Mr. Molloy raised an additional point. In substance it was argued on his behalf that, on a proper construction of the Electoral Acts, the first named defendant in each of the proceedings ("the Minister") had a power to remedy the extreme situation that was found to exist in respect of Dublin West by the simple expedient of adding a seat to the number of seats to be contested in that constituency.

5 2.4 Against that procedural background it is next necessary to turn to the issues which arose between the parties.

3. The Issues

2 3.1 I have emphasised that it was never part of the case brought by either the deputies or on behalf of Mr. Molloy that the election which has been completed since the hearing of the case should be halted or that the result of that election, as a matter of constitutional law, could be questioned in anyway. This is accepted to be the case notwithstanding that, it is said, the constituencies by reference to which that election was conducted were inconsistent with the provisions of the Constitution.

3 3.2 However the deputies and Mr. Molloy argue that the results of the census conducted in April 2006 reveal that the ratio between the number of persons to be elected from, and the population of, constituencies is not, so far as is practicable, the same throughout the country. In consequence it is said that the Electoral (Amendment) Act, 2005 ("the 2005 Act") (which provided for those constituencies) is inconsistent with the Constitution and should be declared as such.

4 3.3 It was not seriously contested on behalf of the State that a proper analysis of the figures to be derived from the 2006 census supports the view that the constituencies were no longer, as of the time of hearing before me, drawn in such a way that it could be said that the population to seat ratio was sufficiently proportionate throughout the country so as to remain within constitutional bounds. The proportionality or otherwise of the ratio between population and seats throughout the country was not, therefore, of itself, a real issue in the case although it is, obviously, against the backdrop of the lack of proportionality which I have noted, that the issues between the parties do arise.

5 3.4 Rather a number of separate issues arose. They are as follows:-

(a) there is a significant dispute between the parties as to the proper interpretation of a "census" as that term is used in Article 16.2.3 of Bunreacht na hEireann. That dispute is brought into stark relief by a consideration of the timing of certain important events. The census was conducted in April 2006. On 19th July, 2006 the Central Statistics Office ("the CSO") published a so called "preliminary report". On 29th March, 2007 the CSO published what are called the "Principal Demographic Results". Thereafter on 26th April, 2007 the CSO published "Volume 1: Population Classified by Area". It will be necessary to analyse the contents and status of those three separate publications in due course. However the argument between the parties centres on whether the "preliminary report" or alternatively the "Principal Demographic Results" can be said to be a census for the purposes of Article 16.2.3. The State argues that only the final figures can be properly be regarded as a census for the purposes of the Constitution.

(b) There...