Redmond v Minister for the Environment

• Jurisdiction: Ireland
• Judgment Date: 31 July 2001
• Date: 31 July 2001
• Docket Number: [1997 No. 4318P]
• Court: High Court

Redmond v. Minister for the Environment

Thomas Redmond

Plaintiff

and

Minister for the Environment, Ireland and The Attorney General

Defendants

[1997 No. 4318P]

High Court

Constitution - Elections - Statute - Validity - Personal rights - Right to stand for election to Dáil Éireann éireann - Right of access to democratic process - Doctrine of severance - Whether right of access infringed by requirement to pay deposit to stand for election to Dáil Éireann éireann - Whether Oireachtas entitled to require candidates to pay deposit - Whether guarantee of equality to citizens infringed by requirement to pay deposit to stand for election to Dáil Éireann éireann and European Parliament - Electoral Act, 1992 (No. 23), ss. 47 and 48 - European Parliament Elections Act, 1997 (No. 2), s. 13 - Constitution of Ireland, 1937, Articles 5, 6, 16 and 40.1.

Article 16.1.1 of the Constitution provides:-

"Every citizen without distinction of sex who has reached the age of twenty-one years and who is not placed under disability or incapacity by this Constitution or by law, shall be eligible for membership of Dáil Éireann éireann."

Article 16.7 of the Constitution provides:-

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

Article 40.1 of the Constitution provides:-

"All citizens shall, as human persons, be held equal before the law.

This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function."

Section 47 of the Electoral Act, 1992 provides, inter alia,as follows:-

"A candidate at a Dáil election, or someone on his behalf, shall, before the expiration of the time appointed by this Act for receiving nominations, deposit with the returning officer the sum of three hundred pounds and if he fails to do so his candidature shall be deemed to have been withdrawn."

Section 13 of the European Parliament Elections Act, 1997 provides as follows:-

"A candidate at a European election, or someone on the candidates behalf shall, before the expiration of the time appointed by this Act for receiving nominations, deposit with the returning officer the sum of one thousand pounds and if the said sum is not so deposited the candidature shall be deemed to have been withdrawn."

The plaintiff wished to stand for election to Dáil Éireann éireann and the European Parliament in 1992 and 1994, respectively but his name was not included on the ballot paper in either election by reason of his failure to pay the respective deposits of £300 and £1,000. The plaintiff sought, inter alia, declarations that s. 47 of the Electoral Act, 1992 and s. 13 of the European Parliament Elections Act, 1997, were invalid having regard to Articles 5, 6, 16.1 and/or Article 40.1 of the Constitution. He contended that his democratic right to stand for election had been violated by the requirement in s. 47 of the Act of 1992 to pay a deposit for such candidature. He further contended that Article 40.1 of the Constitution had been violated in that the requirement of a deposit invidiously discriminated against a large number of citizens such as the plaintiff who wished to seek election but who could not afford to pay the deposit.

Held by the High Court (Herbert J.), in granting the reliefs sought, 1, that the fundamental entitlement of citizens to participate in government and to stand for election was an essential aspect of what was declared in Article 5 of the Constitution to be the democratic nature of the State.

McKenna v. An Taoiseach (No. 2) [1995] 2 I.R. 10 considered.

2. That, by virtue of Articles 5 and 6 of the Constitution, the power granted to the Oireachtas by the Constitution to place citizens under disability or incapacity for eligibility for membership of Dáil Éireann éireann must be limited in its application and that this power was only to be exercised for objective and weighty reasons.

3. That the limited right of citizens to be electable to membership of Dáil Éireann éireann derived from and constituted an essential feature of the code established by Article 16 of the Constitution and not from any regulatory laws authorised by Article 16.7.

In re The Electoral (Amendment) Bill, 1983 [1984] I.R. 268followed.

4. That the requirement of a deposit was not just a matter of procedural and administrative rules regulating elections which Article 16.7 of the Constitution empowered the Oireachtas to establish. Such a requirement involved the imposition of an impediment to participation in the election and was not, as was intended by Article 16.7, nothing more than the ordering of such participation.

5. That the Oireachtas did not have power under Article 16.1.1 to create impediments to, or impose conditions on, eligibility for membership of Dáil Éireann éireann in the nature of deposit requirements. The provisions of s. 47 of the Electoral Act, 1992 were thereforeultra vires the power of the Oireachtas and unconstitutional.

6. That, by virtue of Article 40.1, the State in its enactments might discriminate between citizens but that such discrimination must not be invidious, unjust, unreasonable or arbitrary. The existence of any one of these circumstances would be sufficient to render the alleged discrimination unconstitutional.

Quinn's Supermarket v. Attorney General [1972] I.R. 1;O'B. v. S.[1984] I.R. 316 applied.

7. That the deposit systems required by s. 47 of the Electoral Act, 1992 and s. 13 of the European Parliament Election Act, 1997, discriminated on the basis of money between the plaintiff and other citizens of the State as regards electability to membership of Dáil Éireann éireann and the European Parliament and were an attack upon the dignity of those persons who did not have money.

8. That, in the absence of some reasonable alternative route to the ballot paper, the fact that the deposit systems had the effect, even if unsought, of excluding from the ballot paper a considerable percentage of the adult citizens of the State rendered that system unjust, unreasonable and arbitrary and as such were not lawful.

Bullock v. Carter (1972) 405 U.S. 134; Figueroa v. Canada (1997) 147 D.L.R. (4th) 765; Lubin v. Panish (1974) 415 U.S. 709 followed. Finnegan v. An Bord Pleanála[1979] I.L.R.M. 134 distinguished.

9. That the fact the requirement of a deposit was an established practice was not sufficient to save it from a finding of unconstitutionality under Article 40 of the Constitution.

de Burca v. Attorney General [1976] I.R. 38 applied.

10. That ss. 47 and 48 of the Act of 1992 and s. 13 and rr. 8 and 9 of the Act of 1997, were repugnant to the provisions of Article 40.1 of the Constitution. Those provisions were severable from the remainder of those Acts, such a severance leaving intact the remaining provisions of those Acts.

Desmond v. Glackin (No. 2) [1993] 3 I.R. 67 applied.

Cases mentioned in this report:-

Bullock v. Carter (1972) 405 U.S. 134.

Cahill v. Sutton [1980] I.R. 269.

Cox v. Ireland [1992] 2 I.R. 503.

Crowley v. Ireland [1980] I.R. 102.

de Burca v. Attorney General [1976] I.R. 38; (1975) 111 I.L.T.R. 37.

Desmond v. Glackin (No. 2) [1993] 3 I.R. 67.

Dreher v. Irish Land Commission [1984] I.L.R.M. 94.

East Donegal Co-Operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317; (1970) 104 I.L.T.R. 81.

In re The Electoral (Amendment) Bill, 1983 [1984] I.R. 268; [1984] I.L.R.M. 539.

Figueroa v. Canada (1997) 147 D.L.R. (4th) 765.

Finnegan v. An Bord Pleanála [1979] I.L.R.M. 134.

Lubin v. Panish (1974) 415 U.S. 709.

McKenna v. An Taoiseach (No. 2) [1995] 2 I.R. 10; [1996] 1 I.L.R.M. 81.

Norris v. The Attorney General [1984] I.R. 36.

O'B. v. S. [1984] I.R. 316; [1985] I.L.R.M. 86.

Quinn's Supermarket v. Attorney General [1972] I.R. 1.

Plenary summons.

The facts of the case have been summarised in the headnote and are more fully set out in the judgment of Herbert J., infra.

A plenary summons was issued by the plaintiff on the 15th April, 1997.

The matter came on for hearing before the High Court (Herbert J.) on the 21st July, 2000.

Cur. adv. vult.

Herbert J. 31st July, 2001

The plaintiff is a citizen of the State and resides at Coolree, County Wexford.

In his pleadings, amended by consent at the commencement of the trial of this action, the plaintiff claims:-

• 1. a declaration that s. 47 of the Electoral Act, 1992, is invalid having regard to the provisions of Article 5, Article 6 and Article 16.1.1 and/or Article 40.1 and/or Article 43.1 of the Constitution of Ireland;

• 2. a declaration that s. 13 of the European Parliament Elections Act, 1997, is invalid having regard to the provisions of Article 40.1 and/or Article 40.3.1 of the Constitution of Ireland;

• 3. a declaration that any condition on candidature for election to Dáil Éireann éireann is ultra vires and void, or in the alternative a declaration that any condition imposed must be equal for all eligible persons;

• 4. a declaration that any condition on candidature for election to the European Parliament which cannot be satisfied by all eligible persons is ultra vires and void;

• 5. such further and other declaratory order as to this Honourable Court shall seem meet and just;

• 6. damages;

• 7. costs.

The particulars of this alleged invalidity are set out in the statement of claim as follows:-

• A. failing to allow all eligible persons to offer themselves for election;

• B. imposing a condition on a right conferred by the Constitution of Ireland;

• C. imposing a monetary condition on candidature which in effect excludes or inhibits large numbers of eligible persons from seeking election to Dáil Éireann éireann and/or the European Parliament;

• D. imposing a condition which cannot be satisfied by all eligible persons;

• E. failing to hold all...