Redmond v Minister for Environment (No. 2)

• Jurisdiction: Ireland
• Judge: Justice Herbert
• Judgment Date: 13 February 2004
• Neutral Citation: [2004] IEHC 24
• Court: High Court
• Docket Number: [1997 No. 4318 P]
• Date: 13 February 2004

REDMOND v. MIN FOR ENVIRONMENT & ORS

BETWEEN/

THOMAS REDMOND

PLAINTIFF

AND

THE MINISTER FOR THE ENVIRONMENT, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

[2004] IEHC 24

No. 4318P/1997

THE HIGH COURT

Abstract:

Constitutional law - Damages - Damages for infringement of right by Act of Oireachtas - Whether court power to award damages

Facts: The High Court held that the deposit requirement imposed by the Electoral Act 1992 for candidacy in elections for membership of Dail Eireann and by the European Parliament Election Act 1997 for candidacy in elections for the European Parliament was unconstitutional. The plaintiff sought damages for the infringement of his constitutional rights.

Held by Herbert J. in awarding the plaintiff nominal damages in the sum of €130 that the Court had full power to award damages against the legislative arm of the State for the infringement in an Act of the Oireachtas of a right guaranteed by the Constitution. However, this was a case of injury without loss. While the infringement of the plaintiff's constitutional right was actionable without proof of actual loss, there was no basis in this case for an award of punitive or exemplary damages.

Reporter: R.W.

1 Justice Herbert delivered on the 13th day of February, 2004. .

2 I am unable to accept the argument advanced on behalf of the Respondents in this Issue that this Court should either always decline or should at least be very slow and then only in the most extreme circumstances, to make an award of damages against the legislative arm of the State for the infringement in an Act of the Oireachtas of a right guaranteed by the Constitution. Such a restraint, it was said, is a necessary consequence of the separation of powers contained in the Constitution and of the deference which the great institutions of State should owe to each other. It was further submitted that the prospect of such an award of damages would inevitably inhibit and delay the National Parliament in its vital work of enacting legislation for the proper government of the State, a task often performed under exacting time constraints.

3 It was held by the Supreme Court in the case of T.D., & Ors. v. The Minister for Education & Ors. [2001] 4 I.R. 259, that the doctrine of separation of powers required that none of the three institutions of government be paramount. In my judgment, it is essential in a constitutional democracy such as this State, where a rule or convention of parliamentary sovereignty has no place, that the courts should have the power and be prepared wherever necessary to, vindicate by, "all permitted and necessary redress," (to borrow the phrase of Henchy, J., in the case of Murphy v. The Attorney General [1982] I.R. 241 at 313), including where justice so requires by an award of damages, the constitutional rights of anyone, even where the transgression on those rights is in an Act of the National Parliament passed into law by the votes of the elected representatives of the People and signed by the President. This does not, I believe, amount to unwarranted judicial activism trespassing on the legislative function of the Oireachtas. No evidence was advanced at the hearing of this Issue and I am not prepared to assume that this particular power and, indeed duty of the courts, would in any way inhibit or interfere with the proper functioning of the legislative arm of the State within its own unique sphere of activity under the Constitution.

4 From the decision of the Supreme Court in the cases of, The State (Quinn) v. Ryan [1965] I.R. 70; Byrne v. Ireland and the Attorney General [1972] I.R. 241, and Murphy v. The Attorney General [1982] I.R. 241, and decisions in other cases to which I was referred during the hearing of this Issue but which I consider it unnecessary to cite here, I am satisfied that this Court does have full power to award damages, - ordinary compensatory damages or aggravated or increased compensatory damages and even punitive or exemplary damages, (see Conway v. Irish National Teachers' Organisation & Ors. [1991] 2 I.R. 305), - against the legislative arm of the State for breach of a constitutional right by an Act of the Oireachtas or by a provision of such an Act. However, I do not think that it is reasonably possible or even desirable to attempt to formulate any principles of general application as to the circumstances in which the Court might so award damages or as to the type or amount of those damages. In this respect I adopt what was held by Henchy, J., in the case of Murphy v. The Attorney General [1982] I.R. 241 at 315, where he stated, when speaking of such redress and of the sometimes "transcendent considerations" which may render any or some particular forms of redress unavailable i.e., damages or restitution, - "in any event, I think experience has shown that such constitutional problems are best brought to solution, step by step, precedent after precedent, and when set against the concrete facts of a specific case."

5 In my judgment in this case, delivered on the 31 ^st day of July, 2001,1 held that the deposit requirement imposed by s. 47 of the Electoral Act, 1992, for candidacy in elections for membership of Dáil Éireann and by s. 13 of the European Parliament Election Act, 1997, for candidacy in elections for membership of the European Parliament, was, in each case, unconstitutional. I did not, however, find that any alternative or other conditions whatsoever which might be imposed as a condition of candidacy would also be unconstitutional. Following upon this decision the Oireachtas enacted the Electoral (Amendment) Act, 2002, (Number 4 of 2002), which came into operation on the 25 ^thday of March, 2002. This Act provided for a compulsory system of nomination of any prospective candidate who did not have a certificate of political affiliation. In cases of election to membership of Dáil Éireann, the assent of 30 registered Dáil electors in the particular constituency, (excluding the candidate and any proposer), was required. In the case of elections to membership of the European Parliament, the assent of 60 registered European electors in the particular constituency, (excluding the candidate and any proposer), was required.

6 Having regard to the evidence offered during the course of this case, such legislation could scarcely be properly described as controversial or unexpected. The evidence of the distinguished experts in the disciplines of Political Science and Social and Economic Science who gave evidence in this case, including that of Professor Richard Sinnott of University College Dublin, who was called in evidence on behalf of the plaintiff, was to the effect that access to candidacy for election to membership of the principal national legislative assembly, at least in all European and other accepted democratic systems, was subject to some qualifying requirement and that this was desirable to prevent abuse of the electoral system.. The evidence of all the experts was that a system of nomination was probably the most widely used and the most democratic means of protecting the electoral system from being abused.

7 No evidence was given by the plaintiff at the hearing of this Issue or at the previous hearing that he was willing to or could put himself in a position to comply with a system of nomination by assent. I concluded having heard the plaintiff in evidence that the plaintiff was resolutely and adamantly opposed to any form...