By-election court decision demonstrates the consequences of Ireland’s institutional sclerosis

By Matt Wall

The policy of indefinite delay of outstanding by-elections that has been pursued by the current government has lead to a withering assessment by Mr. Justice Nicholas Kearns; the report in today’s Irish Independent reproduces the most damning statements from the judgment, which are as follows:

“I am satisfied that the delay in this case is so inordinate as to amount to a breach of the applicant’s constitutional rights to such a degree as to warrant the court granting some form of relief”.

“Far from the court ‘tearing asunder’ the provisions of the Constitution by adjudicating on this application, it is the ongoing failure to move the writ for this by-election since June 2009 which offends the terms and spirit of the Constitution and its framework for democracy”.

“The court might, in another case following on from this one, feel constrained to take a more serious view if any Government, not just necessarily the present one, was seen by the courts to be acting in clear disregard of an applicant’s constitutional rights in continually refusing over an unreasonable period of time to move the writ for a by-election.”

Apart from being politically humiliating for the current government, the ongoing debacle of having several under-represented constituencies, and the hollow justifications that have been advanced to sustain this state of affairs are deeply corrosive to popular trust in the democratic process in Ireland. While it is unclear how this is going to play out, it would have been much more desirable had the situation never arisen. However, and this is important to bear in mind, this issue does not pose an insoluble political dilemma: there are solutions and alternatives, and they are quite practical and sensible – they would be inexpensive or, in some cases, they would even save the state some money.

There exist several relatively straightforward ways to assure that governments don’t leave certain areas under-represented for political purposes. Three of these methods are as follows: (1) impose a mandatory minimum time within which by-elections must be held; (2) do away with by-elections, and have candidates nominate replacements who will take their seat in the event that they can no longer hold it (as is the case with European Parliamentary elections in Ireland) or; (3) do as is done in Malta, where PR-STV is also used to elect MPs, and a ‘count back’ system goes back to the ballots that were cast in the original election.

The least dramatic of these reforms would be the imposition of a minimum period. Both the replacement list system and the ‘count back’ give rise to some potential problems and abuses, as explained in Michael Gallagher’s post, however, the list system would maintain the allocation of seats to parties during the lifetime of a particular Dáil and would not necessitate the holding of by-elections. Any of these three reforms would be preferable to the current system, where the government parties, who usually struggle in by-elections (the last time government parties won a by-election was in November 1982 with the election of Noel Treacy in Galway East) and thus face strong incentives to delay by-elections as much as possible, are given absolute latitude with regard to when (or, indeed, if) by-elections are held.

The failure to implement any of these reforms points to the extraordinary inability of our system to reform itself, akin to an ostrich who refuses to take its head out of the ground, even when that ground is crumbling around it. Delays such as the Donegal SW by-election are not unprecedented in Irish democracy, although the Donegal SW election may be set to gain the dubious honour of record holding status if the delays spin out much longer (running close to the period of time it took the Fianna Fáil-Labour coalition to fill the vacancy in the Mayo constituency caused by Pádraig Flynn’s appointment as an EU Commissioner). Precedent does not equal justification, however. Indeed, precedent makes our failure to address this problem even more unacceptable.

As this problem has arisen before, some of these solutions have already been proposed. In 1996, the Constitution Review Group’s report recommended that the maximum period after a seat had been vacated without a by-election being held should be 90 days. This recommendation could have been voted through in a referendum, or simply enshrined in law. However, like many of the excellent and considered recommendations in the CRG’s report, by-election reform appears not to have been rejected, but rather never to have been debated at all. The Committee on the Constitution’s more recent report considers all three options and recommends either the time limit or the replacement list be adopted. Today’s judgement, and indeed the whole long-running by-election saga (brought into focus once again by the vacancy created by yesterday’s resignation of Jim McDaid), is simply a symptom of a deeper malaise: the political system’s intrinsic inability to reform itself.

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9 thoughts on “By-election court decision demonstrates the consequences of Ireland’s institutional sclerosis

  1. Stupid question-but if moving the writ is a motion of the Dail, what is to stop the government majority (aside from precedent and the unlikeliehood of actually winning the vote) from voting against it? Would that delay the by-election indefinitely?

    • That is basically what happens, until the government decides to hold a by-election they can whip their TDs into voting down a writ. This has already happened twice in the case of Donegal SW, the big change today (unless the finding is overturned on appeal) is that the High Court has determined that they cannot do this ‘indefinitely’. This still leaves us in a bit of a grey area, for several reasons – the authority of the court itself to make such a finding is arguably open to debate – as pointed out by Eoin O’Malley here. The opacity of the judgement doesn’t set a clear time frame.

  2. I am a bit disappointed that the court didn’t actually make a ruling on what the maximum limit in terms of period between vacancy arising and holding of by-election should be. Might be picking it up wrong, but seemed to be implicit suggestion that a 90 day limit would be appropriate…

  3. I don’t see how the Greens can retain a shred of credibility, when it is completely clear the by-elections are being delayed deliberately, so that the government can avoid risking its majority – in effect perverting the democratic process to avoid a general election it knows it will not win.

    A proper government would have all 4 by-elections and face the consequences. If the Greens were in opposition Mr Goagarty would be moaning at the mouth by this stage.

    Are we living through GUBU II and what sort of horrors are going to be uncovered by the new Fine Gael and Labour ministers when they take over shortly?

  4. I advised this legal course of action months ago. The cynical response to appeal to the Supreme Court is to preempt any further challenges from the other constituencies.

    Our own money being doled out to prevent us from removing them from power!

  5. If the government is to go down the spoiler tactics route of appealing this decision, then the only response of the Supreme Court must be to make a definitive decision as to when by-elections take place in their judgement on this appeal.

    • Hmmm – would they? Isn’t the problem really an inconsistency in the constitution itself? On the one hand, everyone is entitled to a certain ratio of people to reps in their constituencies. On the other hand, the constitution gives pretty much carte blanche to the legislature to deal with casual vacancies.

      The particular use that the current government has made of its freedom (which they interpret as a right of indefinite delay) is completely abhorrent to most people, but I think the judgement per se may struggle to stand. I think that the govt. would actually have a pretty good chance on appeal – but it would be a serious political risk to do so.

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