Riordan v Spring

JurisdictionIreland
JudgeMr. Justice Declan Budd
Judgment Date08 December 1995
Neutral Citation1996 WJSC-HC 2253
Docket Number420 JR/1994
CourtHigh Court
Date08 December 1995

1996 WJSC-HC 2253

THE HIGH COURT

420 JR/1994
RIORDAN v. SPRING

BETWEEN

DENIS RIORDAN
APPLICANT

AND

AN TANAISTE DICK SPRING
RESPONDENT

Citations:

CONSTITUTION ART 28.6

CONSTITUTION ART 28.6.1

CONSTITUTION ART 28.6.3

O'DONOVAN V AG 1961 IR 114

RYAN V AG 1965 IR 294

CONSTITUTION ART 16

ELECTORAL (AMDT) ACT 1959 S3

ELECTORAL (AMDT) ACT 1959 S4

CONSTITUTION ART 16.2.4

EAST DONEGAL CO-OP V AG 1970 IR 317

LIVESTOCK MARTS ACT 1967

CAHILL V SUTTON 1980 IR 269

STATUTE OF LIMITATIONS 1957 S11(2)(b)

NORRIS V AG 1984 IR 36

MADIGAN V AG 1986 ILRM 136

SPUC V COOGAN 1989 IR 734

CONSTITUTION ART 40.3.3

CROTTY V AN TAOISEACH 1987 IR 713

SPUC, AG V OPEN DOOR COUNSELLING LTD & DUBLIN WELLWOMAN CENTRE 1989 ILRM 19

MCGIMPSEY V IRELAND 1990 ILRM 441

CONSTITUTION ART 2

CONSTITUTION ART 3

BYRNE V IRELAND 1972 IR 241

CONSTITUTION ART 49

CONSTITUTION ART 50

CONSTITUTION ART 6

CONSTITUTION ART 28.6

CONSTITUTION ART 28.1

CONSTITUTION ART 28.2

CONSTITUTION ART 28.4.1

CONSTITUTION ART 28.4.2

CONSTITUTION ART 28.5.1

CONSTITUTION ART 28.5.2

CONSTITUTION ART 14

CONSTITUTION ART 14.1

KELLY ON THE CONSTITUTION 2ED 179

CONSTITUTION ART 28

CONSTITUTION ART 28.12

CONSTITUTION ART 28.6.2

CONSTITUTION ART 12.9

DPP, PEOPLE V O'SHEA 1982 IR 384

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S12

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S48

CRIMINAL PROCEDURE ACT 1967 S34(1)

CONSTITUTION ART 34.4.3

CONSTITUTION ART 38.5

AG V PAPERLINK 1984 ILRM 373

CONSTITUTION ART 43.1

CONSTITUTION ART 40.3.2

MCGEE V AG 1974 IR 287

CONSTITUTION ART 24

CONSTITUTION ART 28.4.2

HEALY, STATE V DONOGHUE 1976 IR 325

VALLEY FORGE 1982 454 US 464

SCHLESINGER V RESERVISTS 1974 418 US 208

CONSTITUTION ART 46

CONSTITUTION ART 47

Synopsis:

CONSTITUTION

Provisions

Enforcement - Citizen - Rights - Assertion - Alleged contravention of Constitution - ~Locus standi~ of plaintiff - Tanaiste to act for the Taoiseach in his absence - Whether Tanaiste must remain in the State while the Taoiseach is abroad - Constitution of Ireland, 1937, Articles 6, 12, 28 - (1994/420 JR - Budd J. - 8/12/95) - [1995] 3 IR 62 - [1996] 2 ILRM 107

|Riordan v. Spring|

GOVERNMENT

Members

State - Absence - Taoiseach - Tanaiste - Tanaiste not forbidden to leave the State while the Taoiseach is abroad - (1994/420 JR - Budd J. - 8/12/95) - [1995] 3 IR 62 - [1996] 2 ILRM 107

|Riordan v. Spring|

PRACTICE

Parties

~Locus standi~ - Constitution - Contravention - Citizen - Claim - Right of citizen to seek declaration - (1994/420 JR - Budd J. - 8/12/95) - [1995] 3 IR 62 - [1996] 2 ILRM 107

|Riordan v. Spring|

1

Judgment delivered by Mr. Justice Declan Budd on the 8th day of December, 1995.

2

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 Tanaiste, were ignoring the provisions of Article 28.6.3 of the Constitution.

3

Article 28.6 of the Constitution is as follows:-

4

2 28.6.1. The Taoiseach shall nominate a member of the Government to be the Tanaiste.

5

2. The Tanaiste 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.

6

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

7

The Applicant contends that the meaning of Article 28.6.3 is that the Taoiseach, or, during the temporary absence of the Taoiseach, the Tanaiste, 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 Tanaiste 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 Tanaiste 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 Tanaiste were at the same time absent from the State on 25th June, 1994, 12th July, 1994, 17th September, 1994 and 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 28.6.3; as it is clear from the record of Dail Eireann for Tuesday, 18th October, 1994 that the present Taoiseach, then in opposition, referred to the functions of the Tanaiste, 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 cooperation between the Taoiseach and the Tanaiste 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 Tanaiste, by being out of the State at the same time as the Taoiseach, was in violation of the provisions of the Constitution.

LOCUS STANDI
8

The Applicant was met at the threshold of the Court by the submissions of Counsel for the Respondent to the effect that the Applicant does not have the requisite locus standi to bring such an action. I accept the Plaintiff's evidence that he is an interested citizen of this country who has taken an active role by participation in seeking election both to the Oireachtas and to the European Parliament, albeit unsuccessfully. He is sincere in his belief that the leaders of the Government are repeatedly behaving in a manner which is contrary to the requirements of the provisions of the Constitution. I accept that he is concerned that if members of the Government are seen to be ignoring the provisions of the Constitution, then this undermines the rule of law and I also accept that he is genuine in his apprehension that the simultaneous absence from the country of both the Taoiseach and the Tanaiste could lead to problems not just in the normal workings of the Executive in the absence of the Head of the Government or his deputy, but also particularly in times of crisis, such as insurrection or invasion. Indeed, the Applicant in his submissions made the point that the country has been in an official state of emergency from 1939 to 1995.

9

When constitutional litigation began to become common in the early 1960's, the State does not seem to have taken any point as to locus standi against Plaintiffs such as Senator O'Donovan in the Electoral Act case, O'Donovan -v- Attorney General, 1961 IR 114 or against Mrs. Ryan in Ryan -v- Attorney General, 1965 IR 294, the fluoridation case. When Senator O'Donovan relied on the provisions of Article 16 of the Constitution to challenge the validity of Sections 3 and 4 of the Electoral (Amendment) Act, 1959and the Schedule thereto he was not more acutely affected than any other citizen by the provisions of the Acts which allowed substantial departures from the ratio of members of Dail Eireann to the population of the Republic prescribed by the Constitution, thus causing grave inequalities of representation for which no justification or genuine administrative difficulty existed. The Senator won his case on the basis that the legislature in enacting the Electoral (Amendment) Act, 1959, when revising the constituencies, did not have "due" regard to the changes in the distribution of the population as prescribed by Article 16.2.4 of the Constitution. In Mrs. Ryan's case Kenny J. approached the matter on the basis of the right to bodily integrity which was not actually enumerated in the Constitution, but again her right to bring the challenge to the legislation was not put in issue.

10

In East Donegal Cooperative Marts -v- Attorney General, 1970 IR317, the Court had to decide whether the Plaintiffs, who were three cooperative societies and four individuals, had the necessary standing to question the constitutionality of certain provisions of the Livestock Marts Act, 1967. The Plaintiffs in the "Marts Case" contended that the 1967 Act gave excessive and arbitrary powers to the Minister for Agriculture and Fisheries in regard to the granting and the revocation of licences to operate livestock marts. In the High Court O'Keeffe P. held that the three Plaintiffs, who were cooperative societies operating livestock marts, and the four individual Plaintiffs (each of whom was a shareholder in a livestock mart), had the necessary standing to question the constitutionality of the statutory provisions in issue because, although none of the Plaintiffs had yet been actually affected adversely by the challenged sections, those sections (assuming that they gave to the Minister the powers suggested) constituted a threat to the existence of the marts in which the Plaintiffs had an interest. That ruling was affirmed when the case came on appeal to the Supreme Court. At p. 339 Walsh J. said:-

"In the present case all the Plaintiffs are engaged in the type of business which is directly affected, and subject to control, by the...

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