Riordan v an Tanaiste
| Jurisdiction | Ireland |
| Judgment Date | 01 January 1998 |
| Date | 01 January 1998 |
| Docket Number | [S.C. Nos. 184 and 210 of 1996] |
| Court | Supreme Court |
Supreme Court
Constitution - Taoiseach and Tánaiste both absent from State at same time - Locus standi - Whether Tánaiste in breach of constitutional duties - Constitution of Ireland, 1937, Article 28, s. 6, sub-s. 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 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."
On certain dates in 1994 both the Taoiseach and the Tánaiste were simultaneously absent from the State. On these dates no duty or function which is specifically required by the Constitution to be performed by the Taoiseach fell to be discharged.
The applicant sought a declaration that the Tánaiste was in violation of Article 28, s. 6, sub-s. 3 of the Constitution of Ireland, 1937, on the basis that it was constitutionally impermissible for him to be absent from the State at the same time as the Taoiseach. The respondent submitted that the applicant did not have locus standi to institute the proceedings.
The High Court found that the applicant did have locus standi but that Article 28, s. 6 of the Constitution did not require the Tánaiste to remain in the State when the Taoiseach was absent. (See [1995] 3 I.R. 62).
Held by the Supreme Court (Hamilton C.J., O'Flaherty, Denham, Barrington and Keane JJ.) in dismissing the applicant's appeal, 1, that Article 28, s. 6, sub-s. 3 of the Constitution did not require that either the Taoiseach or the Tánaiste remain in the State at any one time, save when a duty or function fell to be performed by the Taoiseach.
2. That as no duty fell to be performed by the Taoiseach at the times when both he and the Tánaiste were absent from the State, the occasion which may have given the applicant locus standi had not arisen.
Quaere: Whether judicial review proceedings were appropriate in the present case as no reviewable order or decision was in question.
Cases mentioned in this report:—
Crotty v. An Taoiseach [1987] I.R. 713; [1987] I.L.R.M. 400.
McCulloch v. Maryland (1819) 17 U.S. (4 Wheat 316).
McGimpsey v. Ireland [1990] 1 I.R. 110; [1990] I.L.R.M. 441; [1989] I.L.R.M. 209.
Riordan v. An Tánaiste [1995] 3 I.R. 62.
S.P.U.C. v. Grogan [1989] I.R. 753; [1990] I.L.R.M. 350.
Appeal from the High Court.
The facts have been summarised in the headnote and are fully set out in the judgment of O'Flaherty J., infra.
The High Court proceedings are reported at [1995] 3 I.R. 62. Notices of appeal were filed on the 11th July, 1996, and 18th July, 1996. The appeal was heard by the Supreme Court (Hamilton C.J., O'Flaherty, Denham, Barrington and Keane JJ.) on the 7th October, 1997.
Cur. adv. vult.
| Hamilton C.J. | 25th November, 1997 |
I agree with the judgment to be delivered by O'Flaherty J.
O'Flaherty J.
By order of the High Court (Lavan J.) of the 28th November, 1994, the applicant was given leave to apply for a declaration by way of application for judicial review on the ground that the then Tánaiste, Mr. Dick Spring, had been absent from the State on five specified dates in 1994, whilst the then Taoiseach, Mr. John Bruton, was also absent from the State, in alleged breach of Article 28, s. 6, sub-s. 3 of the Constitution.
The substantive case duly came on for hearing before Budd J. who, in his reserved judgment of the 8th December, 1995, dismissed the applicant's claim.
The applicant appeals to this Court. He submits that it is not constitutionally permissible for the Taoiseach and the Tánaiste to be absent from the State at the same time and in support of this assertion he cites a sentence from Doolan Constitutional Rights in Ireland (1984) p. 63: "It is constitutionally improper for both the Taoiseach and the Tánaiste to be absent from the State at the same time." (Contrast the latest edition (3rd; 1994) of this work where the proposition is put: "It may be constitutionally improper for both the Taoiseach and the Tánaiste to be absent from the State at the same time.") Further, the applicant submits that on his departure from the State the Taoiseach ceases to be such and that is why the Tánaiste must remain in the State so as to discharge the duties and functions, both constitutional and legislative, of...
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