Shiels v Donegal County Council and Another
| Jurisdiction | Ireland |
| Judge | Ms. Justice Dunne |
| Judgment Date | 07 November 2012 |
| Neutral Citation | [2012] IEHC 417 |
| Docket Number | [No. 541 J.R./2011] |
| Court | High Court |
| Date | 07 November 2012 |
BETWEEN
AND
AND
[2012] IEHC 417
THE HIGH COURT
LOCAL GOVT LAW
Membership
Whether co-option of notice party as member of county council unlawful - Appointment of member to Seanad creating vacancy - Rules for casual vacancies - Requirement for vacancy created to be filled by non-party candidate as departing member non-party candidate at time of election -Whether notice party independent candidate when co-opted - Contention of applicant that notice party Labour Party nominee - Affidavit evidence - Media reports - Definition of âÇÿnon party candidate' - Express averments of notice party - Distinction between being nominated by party and being candidate of party - O'Doherty v Attorney General [2010] 3 IR 482 considered - Local Government Act 2001 (No 37), s 19 - Electoral (Amendment) Act 2009 (No 4), s 16 - Relief refused (2011/541JR - Dunne J - 7/11/2012) [2012] IEHC 417
Shiels v Donegal County Council
Facts: The applicant sought a declaration that the co-option of the notice party as a member of the respondent was unlawful. A Councillor was elected to Seanad Eireann causing a casual vacancy of a non-party seat on a County Council. He had been elected to the Council as a non-party candidate and had subsequently joined the Labour Party. The notice party was co-opted as a member of the Council. The question arose was whether the notice party was an independent candidate. It was contended by the applicant that he was a Labour party nominee at the time of his co-option. The Court considered the provisions of the Local Government Act 2001 and Order 84(a).
Held by Dunne J. in refusing the reliefs sought, the applicant could not succeed in his application. In light of the clear and unambiguous averments, the Court was satisfied that it was impossible to reach the conclusion that the notice party was either a member or candidate of the Labour Party at the time of his co-option.
LOCAL GOVT ACT 2001 S13(1)(E)
LOCAL GOVT ACT 2001 S19(3)(B)
LOCAL GOVT ACT 2001 S19
LOCAL ELECTIONS REGS 1995 SI 297/1995 REG 14(6)
EUROPEAN PARLIAMENT ELECTIONS ACT 1997 SCHED 2 RULE 5(4)
O'DOHERTY v AG & ORS 2010 3 IR 482 2009/45/11139 2009 IEHC 516
The applicant herein has sought a declaration that the co-option of the notice party as a member of the respondent was unlawful. He has sought other related relief and the grounds upon which his application has been brought are set out in the statement of grounds as follows:-
"Immediately upon Mr. (now Senator) Harte being appointed to Seanad, he became disqualified from membership of the Council; Local Government Act2001, s. 13(l)(e) as amended, and a casual vacancy there then occurred. Because at the time of his election on or about the 6th day of June 2009, he was a non party candidate, the procedure for filling the vacancy was that in s. 19(3)(b) of the this Act which applies the Council's standing orders. Order 84, requires the vacancy to be filled by a non party candidate. But the notice party did not fit this description when he was co-opted on or about the 30th May, 2011, because at the time he was a Labour Party candidate/nominee. Were Mr. McBride an independent candidate when co-opted, the procedure provided for in Standing Order 84(b) should have been followed, but that did not occur. If indeed he was a Labour Party candidate, Standing Order 84(a) should have governed and been applied to the procedure for filling the vacancy and accordingly the vacancy was not lawfully filled."
It would be helpful to set out the provisions of s. 19 of the Local Government Act2001 (the "2001 Act") and in particular the provisions of s. 19(3)(b) which provides as follows:-
"Where the person causing the casual vacancy was a non-party candidate at his or her election to the local authority, the vacancy shall be filled by the co-option by the local authority of a person to fill the vacancy (except where paragraph (c) or (d) or (e) of subsection (1) apply) in accordance with such requirements and procedures as may be set out in its standing orders."
The standing orders ("S.O") of the respondent deal with the issue of filling casual vacancies in S.O. 84 which provides:-
"A casual vacancy in the membership of the Council in the circumstances as set out in s. 19(3)(b) of the Act shall be filled by the co-option by the Council of a person in accordance with the following requirements and procedures-"
(a) Where the non party candidate who caused the vacancy has at any time prior to the occurrence of such vacancy lodged with the meetings administrator a list of his preferred nominees (not exceeding three in number) to take his place in the event of a casual vacancy occurring in its membership, the Council will consider (in the order they were nominated) the co-option of one of those persons, subject to compliance with subs. (5) of the said section or
(b) In the event that if for whatever reason the Council do not co-opt a person in accordance with subpara. (a) above, a non party candidate will be co-opted from the same electoral area (as the member who caused the casual vacancy) and while subject to this the Council will have full discretion to decide such person, it is intended that it will be someone who so far as the Council can ascertain represents the same broad constituency as elected the member causing the vacancy."
Councillor Harte (as he then was) was elected to Seanad Eireann on the 28th April, 2011, thereby causing a casual vacancy of a non party seat on Donegal County Council. Senator Harte had been elected to the Council as a non party candidate but subsequently joined the Labour Party. The notice party herein was co-opted as a member of the Council on the 30th May, 2011. The question that has been raised in these proceedings is whether or not Councillor McBride was an independent candidate when co-opted. It is contended by the applicant that he was a Labour Party nominee at the time of his co-option.
A large number of affidavits have been exchanged herein. In his verifying affidavit, Mr. Shiels noted that Mr. McBride, formerly an unsuccessful Fianna Fail candidate in the local elections of 2009, in an interview in the Donegal Daily announced that he was selected by Labour Party headquarters to be co-opted to replace Senator Harte as a Labour Party candidate and was endorsed as such by Senator Harte in the same publication on the 27th May, 2011. Mr. McBride was then nominated by members of the Labour Party and co-opted to replace Senator Harte on the 30th May, 2011. Mr. Shiels explained that he had concerns about the apparent co-option of a Labour Party member to a non party candidate's seat.
Mr. Shiels sought clarification from the respondent on the procedure adopted at the meeting of the 30th May 2011 in a faxed letter of the 7th June, 2011. He was not satisfied with the response and following correspondence between Mr. Shiels and the Council, he commenced these proceedings.
In a further affidavit sworn on the 4th July, 2011, Mr. Shiels exhibited correspondence with, amongst others, the chairperson of Donegal County Council and the County Manager. He referred to a previous meeting of Donegal County Council and to the co-option of a number of individuals arising from the election of three Councillors to the Dáil in the general election as a result of which they became disqualified. He contrasted the manner of co-option on that occasion with the method adopted by Senator Harte in respect of his disqualification. It appears that Mr. Thomas Pringle, a successful non party candidate in the general election had, prior to being disqualified, submitted a list of non party nominees as provided for in S.O. 84(a). No such list was submitted by Senator Harte.
There is a suggestion in that affidavit that the correct procedure was not followed at the meeting of the 30th May, 2011, or at least was procedurally less than perfect as Mr. Eunan Sweeney, the meetings administrator of Donegal County Council was not present and "therefore could not assist the chair in relation to correct procedure". It is necessary to emphasise that judicial review was not sought nor was it granted on the basis that the meeting at which Councillor Harte was co-opted was in any way procedurally flawed. I will refer to this point later.
A statement of opposition was duly filed and served in which reference was made to the relevant statutory provisions and to the Standing Orders of Donegal County Council. It was then pleaded that the requirements of the 2001 Act and Standing Orders were fulfilled and that the respondent acted according to law in connection with the filling of the casual vacancy in its membership. An issue was also raised as to the reliance on media reports referred to in the affidavits of Mr. Shiels. It was further pleaded that Councillor McBride was proposed and elected as a non party candidate and remains an independent member of the County Council. A number of other points were raised as to why the applicant was not entitled to the reliefs sought and where necessary, I shall refer to those later in the course of this judgment.
A verifying affidavit was sworn by Liam Ward, the director of Corporate and Housing Services of Donegal County Council, on its behalf. He noted that the meetings administrator of the County Council, Mr. Sweeney, wrote to each elected member of the respondent in early May to inform them that a casual vacancy had arisen and advising that the provisions of s. 19 of the Local Government Act2001, as amended and S. O. 84, applied to the filling of casual vacancies and enclosed a copy of same. In a further letter to each elected member, he...
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