Riordan v an Tanaiste

• Jurisdiction: Ireland
• Judgment Date: 08 December 1995
• Docket Number: [1994 No. 420JR]
• Date: 08 December 1995
• Court: High Court

Riordan v. An Tánaiste

Denis Riordan

Applicant

and

An Tánaiste

Respondent

[1994 No. 420JR]

High Court

Constitution - Absence of Tánaiste from State at same time as the Taoiseach - Whether contrary to requirements of Constitution - Applicant not suffering any injury or prejudice personal to him - Prejudice or injury to any other person not established - Whether applicant having locus standi - Constitution of Ireland, 1937, Article 6, s. 6, sub-s. 3.

Constitution - Interpretation - "Temporary absence of the Taoiseach" - Literal interpretation - Purposive interpretation - Historical approach - Whether referring to absence of Taoiseach from the State - Whether referring to absence of Taoiseach from ability to perform his duties - Whether Tánaiste prohibited from leaving the State during temporary absence of Taoiseach - Constitution of Ireland, 1937, Article 12, s. 9, Article 14, s. 1, Article 28, s. 4, Article 28, s. 6, sub-ss. 2 and 3.

Article 28, s. 6 of the Constitution of Ireland, 1937, provides as follows:—

"1. The Taoiseach shall nominate a member of the Government to be the Tánaiste.

2. The Tánaiste shall act for all purposes in the place of the Taoiseach if the Taoiseach shall die, or become permanently incapacitated, until a new Taoiseach shall have been appointed.

3. The Tánaiste shall also act for or in the place of the Taoiseach during the temporary absence of the Taoiseach."

On dates between June and September, 1994, both the Taoiseach and the Tánaiste were simultaneously absent from the State. It was submitted on behalf of the applicant that Article 28, s. 6, sub-s. 3 requires the Tánaiste to remain within the State when the Taoiseach is absent from the State to carry out the functions and duties of the Taoiseach. The applicant sought a declaration that the Tánaiste had acted in violation of the Constitution by being outside the State at the same time as the Taoiseach. The respondent argued, inter alia that the applicant did not have the locus standi necessary to bring the action.

Held by Budd J., in refusing the relief sought, 1, that the principles governing thelocus standi of a litigant who invoked the Constitution were as follows:—

• (a) where a challenge was made to the constitutional validity of a statute the litigant's rights must have been infringed or be under threat of infringement.

• (b) claim must be based on the litigant's own personal situation such as arguments, and based on a jus tertii generally will not be allowed.

• (c) where there is an actual or threatened breach of a constitutional norm and there is no other suitable litigant, or the threatened breach is likely to affect all citizens in general, then the courts will allow a citizen to proceed with an action in the absence of proof of any special injury or prejudice peculiar to him.

• Cahill v. Sutton [1980] I.R. 269, S.P.U.C. v. Coogan[1989] I.R. 734, Crotty v. An Taoiseach[1987] I.R. 713 and McGimpsey v. Ireland[1990] 1 I.R. 110 applied.Norris v. The Attorney General[1984] I.R. 36 and Madigan v. The Attorney General[1986] I.L.R.M. 136 considered.

2. That the applicant as a citizen with a genuine and sincere interest in the political life of the country had locus standi and was entitled to take appropriate steps to ensure that the Constitution, as the fundamental law of the State was observed by those in high office, in the absence of any special injury or prejudice to him.

Byrne v. Ireland [1972] I.R. 241 considered.

3. That applying a literal approach, it was clear that there was no prohibition on the Taoiseach and the Tánaiste being simultaneously absent from the State.

The People (Director of Public Prosecutions) v. O'Shea [1982] I.R. 384 considered.

4. That in adopting a purposive approach to Article 28 s. 6 sub-s. 3, "temporary absence of the Taoiseach" should be interpreted as the temporary absence from the ability to perform his duties during illness or incapacity or while incommunicado for an appreciable time; that such a construction was consistent with Article 28, s. 6, sub-s. 2 dealing with the death or permanent incapacity of a Taoiseach and Article 12, s. 9 placing an explicit restriction on the President leaving the State; and that any difference of phraseology used in Article 14, s. 1, which explicitly referred to the President's absence, temporary incapacity or permanent incapacity, was of little significance in a purposive interpretation of the Constitution.

The Attorney General v. Paperlink Ltd. [1984] I.L.R.M. 373 considered.

5. That even if "temporary absence" was construed as "absence from the State", it would not mean that the Tánaiste was required to remain within the State, as regard must be had to present sophisticated and instantaneous communication facilities.

6. That the Constitution was a vibrant and dynamic document and no interpretation of it was intended to be final for all time; and that having regard to modern communications, speed of travel by aircraft and the concept of collective responsibility under Article 28, s. 4, sub-s. 2, it is possible for the Taoiseach to exercise his duties when abroad.

Cases mentioned in this report:—

The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd.[1988] I.R. 593; [1989] I.L.R.M. 19.

The Attorney General v. Paperlink Ltd. [1984] I.L.R.M. 373.

Byrne v. Ireland [1972] I.R. 241.

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

Crotty v. An Taoiseach [1987] I.R. 713; [1987] I.L.R.M. 400.

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

Madigan v. The Attorney General [1986] I.L.R.M. 136.

McGee v. The Attorney General [1974] I.R. 284; (1973) 109 I.L.T.R. 29.

McGimpsey v. Ireland [1990] 1 I.R. 110; [1989] I.L.R.M. 209; [1990] I.L.R.M. 441.

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

O'Donovan v. The Attorney General [1961] I.R. 114; (1961) 96 I.L.T.R. 121.

The People (Director of Public Prosecutions) v. O'Shea [1982] I.R. 384; [1983] I.L.R.M. 549.

Ryan v. The Attorney General [1965] I.R. 294.

S.P.U.C. v. Coogan [1989] I.R. 734; [1989] I.L.R.M. 526; [1990] I.L.R.M. 70.

The State (Healy) v. Donoghue [1976] I.R. 325; (1976) 112 I.L.T.R. 37.

Judicial Review.

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

On the 28th November, 1994, the High Court (Lavan J.) gave the applicant leave to apply by way of judicial review for the following relief:—

"A declaration that the Tánaiste Dick Spring was in violation of Article 28, s. 6, sub-s. 3 of the Constitution, thereby violating the basic law of the State from which he derives his power."

The respondent filed a statement of opposition dated the 16th February, 1995.

The application was heard by the High Court (Budd J.) on the 28th November, 1995.

Cur. adv. vult.

Budd J.

The applicant is a citizen of Ireland and has shown an active interest in the Government of the country. In 1987 he stood for election as a T.D. in the constituency of Limerick East and in 1994 he stood for election in the Munster constituency in the European Election. In evidence he said that he had made representations to the present Taoiseach to the effect that he was concerned that the members of the Government, in particular the Taoiseach and the Tánaiste, were ignoring the provisions of Article 28, s. 6, sub-s. 3 of the Constitution.

Article 28, s. 6 of the Constitution is as follows:—

"1 The Taoiseach shall nominate a member of the Government to be the Tánaiste.

2 The Tánaiste shall act for all purposes in the place of the Taoiseach if the Taoiseach should die, or become permanently incapacitated, until a new Taoiseach shall have been appointed.

3 The Tánaiste shall also act for or in the place of the Taoiseach during the temporary absence of the Taoiseach."

The applicant contends that the meaning of Article 28, s. 6. sub-s. 3 is that the Taoiseach, or, during the temporary absence of the Taoiseach, the Tánaiste, shall at all times be in the State. Thus he argues that when the Taoiseach leaves the State for a temporary period, he ceases to carry out the duties of Taoiseach assigned to him by the Constitution. The Tánaiste becomes the acting Taoiseach and is constitutionally required to carry out the duties of the Taoiseach until the Taoiseach returns to the State. In short, he contends that if the Taoiseach and the Tánaiste are simultaneously out of the State, then there is a violation of the provisions of the Constitution. It is common case that both the Taoiseach and the Tánaiste were at the same time absent from the State on the 25th June, 1994, the 12th July, 1994, the 17th September, 1994 and the 27th September, 1994. The applicant makes the point that, apart from his representations, the present Taoiseach is well aware of the applicant's contention with regard to the meaning of Article 28, s. 6, sub-s. 3, as it is clear from the record of Dáil Éireann éireann for Tuesday, the 18th October, 1994, that the present Taoiseach, then in opposition, referred to the functions of the Tánaiste, in the context of his acting for the Taoiseach when he is absent for any reason, and suggested that, if that constitutional provision is to be abided by, there should at least be a minimal measure of diary co-operation between the Taoiseach and the Tánaiste to ensure that one or other was in the country. Of course, after due reflection and being in Government, he may not hold to the same view and in any event it is not the thinking of even senior members of the Government which is material in this instance but rather the considered opinion of the courts as to the proper interpretation of the provisions of the Constitution. The applicant says that as a citizen he is entitled to expect the members of the Government to take cognizance of and to act in accordance with the provisions of the Constitution. In effect the applicant seeks a declaration that the Tánaiste, by...