Is the Doherty judgement justified?

By Eoin O’Malley, 3rd November, 2010

The decision today to criticise the government for offending the spirit of the constitution is likely to accelerate the holding of the Donegal by-election. But the High Court may be mistaken in reading the procedures for holding a by-election, and so the logic of the decision may be questionable.

When a motion is put to issue the writ for the bye-election, it is the Dáil takes the decision, and the Ceann Comhairle then informs the Clerk to issue the writ, contacting the returning office etc. The order and decision in the Court case today is not against the Dáil but the Government which should either move by-election motion or not resist it. This should be done within a reasonable time of the vacancy arising, it argues. This means, of course, that the Government would have to direct its members to support such a motion.

The Judge, Nicholas Kearns, avoided actually making an order and just scolded the government, but clearly implied that he would were the case to come before him again in some unspecified time period. It is not clear how such an order could be constitutional. It would in effect be telling TDs how they should vote in a motion, and worse telling the government of the day that it should force TDs to do so, even though the government has no legal (as opposed to political) control over those TDs. Nor is the government in fact a legal party in the decision to move the writ. It may as well have told the leader of the Green Party to do this.

A solution maybe to  order to the Ceann Comhairle or the Clerk of the Dáil to issue the writ, but even this might be challengable, on the grounds that it is ordering him to overturn/ ignore a vote in the Dáil. Another solution could be to find the Standing Orders of the Dáil or the Electoral Act to be unconstitutional or constitutionally deficient, and order the Oireachtas to deal with casual vacancies within some specified time period. But it is surely unconstitutional for the High Court to threaten the government to force TDs to vote is some way that the court deems appropriate? TDs might be well advised to resist this encroachment on their independence.

Another oddity in this judgement is the idea that by-elections as opposed to any other means of filling vacancies are a democratic right. Kearns argues,

“by-elections have been seen to provide a very clear barometer of public opinion and to serve an important function in the working of a democratic representative system. Thus the same principles which underpin … the requirement to hold general elections at reasonable intervals seem to me to apply with equal – if not greater – force where by-elections are concerned. It would strike me as absurd to apply a requirement of reasonable time to the holding of a general election and then to flout or altogether ignore the same principle at the micro level of a by-election. The issue of representation is the same; the requirement to provide an opportunity to the electorate to have their views expressed by elected representatives is also the same.”

Of course there is a constitutional requirement that the Dáil last no longer than seven years (reduced to five by statute). But there is no such legal requirement that by-elections be held in any specified time, nor is there a constitutional requirement that they be held at all. It might also come as a surprise to the citizens of virtually every other democracy that their democratic rights are denied in the way parliamentary vacancies are filled. It’s therefore odd that one citizen should have a right to a by-election, unless it is on the basis that his rights of representation are reduced. In that case Senator Doherty only having two TDs might be seen as a disadvantage, except that would suggest that those in three seat constituencies are at a disadvantage compared to those in four seat constituencies, in that they are less represented. Or it could be that the requirement that there is one TD for every 20,000 to 30,000 people is violated.  This does not seem to be what the case was decided upon, but if it were, I’d hazard a guess, given emigration from Donegal, and that the constituency was close to the lower limit, it’s still within the 30,000 upper limit.

12 thoughts on “Is the Doherty judgement justified?

  1. Interesting take on this issue, Eoin. Hard to diasagree with your substantive point – this ruling seems to stretch judicial authority beyond its limits in our system.

    Of course the govt. could have avoided this entire legislative/exeuctive/judicial constitutional crisis by simply holding the election in the first place – or implementing legislation more closely regulating by-elections.

  2. I’m not sure your logic is correct, or at least that it is a correct reading of the nature of today’s judgement.
    Justice Kearns bases his argument on Justice Geoghegan’s argument in his ruling in ‘Dudley v An Taoiseach 1994’ which goes as follows:
    “As Dáil Éireann cannot move of its own motion, I think that there must be an arguable case at least that the Government of Ireland has a constitutional obligation to set down and support the motions for the issue of a writ for the holding of a by-election after a reasonable time has elapsed from the vacancy arising and that there is also an arguable case that the Government is constitutionally obliged not to impede or oppose such a motion after a reasonable time has elapsed, except in the context of substituting its own motion. As a Minister can be judicially reviewed in the exercise of his powers and functions, there must, I think, be an arguable case that the government can be judicially reviewed in the circumstances of this particular case.”
    It follows that the Government decision (or non-decision in this case) is justiciable.
    The argument that any order arising from Justice Kearns finding that the government does indeed have a constitutional obligation to hold bye-elections within a reasonable amount of time clashes with the rights of TD’s to vote freely in the Dáil is not convincing. Since the Crotty case, referenda are required in relation to European treaty ratifications. The procedure for calling a referendum is analogous to that of moving a writ for an election i.e. it requires a motion to be passed by the Dáil. If this judgement is an infringement on TD’s rights then it is merely a further example of an infringement that has been apparent since 1987, and has gone unchallenged.

    • I’m not sure it’s a problem with my logic, rather that today’s Court based its judgement on a a decision of granting leave to appeal, which itself might be questionable. But the government does not act (or not act) in this case, the Dáil does. What would the Court do if the members of the Fianna Fáil parliamentary party who were not members of the government refused to vote as the Court directed? Notwithstanding that the motion would probably pass, if it didn’t what would the court then be empowered to do? The decision does not seem to appreciate that this is not a government decision, it is a party decision. Even if in effect the government and party are synonymous, it is not necessarily the case.

      • The finding of Justice Geoghegan appears to be of the effect that the Government is responsible and has both the power and obligation to act (through the Dáil) or at least to not actively oppose the moving of a writ for the bye-election.
        Parties do not have any constitutional role, the Dáil and the Government do and in this case the Government would be acting contrary to its constitutional obligations.
        How such a failing could be rectified by the courts is, I think you’re right, unclear but that doesn’t remove the right of the Courts to find such a failing nor does such a finding involve an infringement on the rights of TD’s, other than to oblige them to fulfil their constitutional obligations.

  3. A fascinating case and issue raised by Eoin. Indeed, it would seem that the judge was taking a very de facto perspective on the power of the government to maintain a majority in support of a writ.

    Overall, given the reliance on the constitutional right to representation it would seem that the real problem is with Section 39(2) of the Electoral Act, 1992.

    “Where a vacancy occurs in the membership of the Dáil by a person ceasing to be a member otherwise than in consequence of a dissolution, the Chairman of the Dáil (or, where he is unable through illness, absence or other cause to fulfil his duties or where there is a vacancy in the office of Chairman, the Deputy Chairman of the Dáil) shall, as soon as he is directed by the Dáil so to do, direct the Clerk of the Dáil to issue a writ to the returning officer for the constituency in the representation of which the vacancy has occurred directing the returning officer to cause an election to be held of a member of the Dáil to fill the vacancy mentioned in the writ.”

    This section now seems effectively unconstitutional, given that the decision today removes the implied right of the legislature to decide on the timing of a by election.

    Two related issues:
    – we do not have single member districts, so I don’t quiet buy the ‘no representation’ – surely ‘under-represented’ would be better.

    – An interesting conflict now exists between the constitutional right to representation and the (uniquely Irish) institution of the Ceann Comhairle where voters in the CC’s constituency are also under-represented given that the constitution providers for her automatic re-election as a member of parliament.

  4. Isn’t it the case though that it is the government who are preventing the Dáil from exercising its right to move the writs, by the imposition of the whip on government TDs, and it is doing so to pervert the democratic process by preventing it run its natural course, even if it means a general election. It is doing this as it knows it faces certain defeat at that election.

    The delay is not because there is a government with a clear mandate and a long term still to run, the by elections are being delayed to prevent the will of the people being heard?

  5. Desmond,

    A great point but imagine the likely reaction of the courts to the following:
    1. TD breaches whip
    2. TD suspended from parliamentary party
    3. TD brings constitutional case against her party leadership claiming the action was a breach of her constitutional rights.
    4. The High/Supreme court would run a mile.

    Having said that, I do believe the court has a far too negative attitude towards the Oireachtas, as evident by Ardagh v. Maguire [2002] when the court rules that politicians were effectively incapable of making findings of fact. How then can parliament ever hold anyone/anything accountable!!

    And, at the end of the day, while the constitution is quiet on political parties, it grants the government significant prerogatives (e.g., over money bills).

  6. Eoin is correct to say that the Dáil takes the decision.
    But given the fusion of the Government and the Dáil, is this judgement an example of the working of “partial agency”?
    One branch of the Government’s failure to act is being made up by another branch taking a stance on an issue.

    For all the obeisance to the separation of powers between the judicial and government branches, the political class does not recognise any separation of powers between the Government and the legislature.
    This lack of separation of powers is copperfastened in our constitution, as Government must have the support of the majority of in the Dáil.

    “But it is surely unconstitutional for the High Court to threaten the government to force TDs to vote is some way that the court deems appropriate? TDs might be well advised to resist this encroachment on their independence.”

    Why does this stricture that you apply to the judiciary not also apply to the Government?
    How often do we see Government-supporting TDs “resisting this encroachment to their independence” – by the Cabinet?

    • I think there are a few problems with the judgement.
      1. (As you say) The idea that there is no separation between the executive and legislative branches, taking a de facto view of the operation of political process sits uneasily with prior judgements such as in Abbeylara, where the court took a literalist/ theoretical view of the role of the Oireachtas.
      2. If you are going to say that there is an unreasonable delay, you must have some formula that the Dáil can follow in the future. Is the Dublin South delay now unreasonable? How would we know? Do we have to ask Nicholas Kearns to look into his heart? He implied that the CRG recommendation of 90 days might be his limit for a reasonable delay. But when did CRG recommendations become the constitution? If 90 days is the limit, shouldn’t he just say so. Perhaps he knows this would create anomalies, what if a vacancy arises 100 days before the end of the Dáil term?
      3. the argument about the right to a by-election seems to be based on no constitutional principle either explicit or implicit. Few other countries hold them, but are they not democracies in Kearns’ definition of democracy? If the Oireachtas passed legislation to fill casual vacancies by substitution, his implication is that this would be unconstitutional, (because the people have a right to express their opinion, as opposed to a right to representation) in which case the system for substituting MEPs might be unconstitutional (except of course the EP is not mentioned explicitly in the constitution).
      4. And the judge is on shaky ground when he claims that the vacancy is “unprecedented”, or “the longest in the history of the state”. The delay at 516 days is not (yet) the 520 day vacancy in 1994, and certainly when the application was made it was far from it.

      The judgement, it seems to me, was a cobbling together of ideas and arguments, which are ultimately inconsistent.

      • The arguments at the Supreme Court will be interesting, as will the Supreme Court’s decision.

        Is this a case where our written constitution provides a basis (even if it is cobbled together as you suggest)for a serious divergence from British custom and practice on this kind of issue?

        Is this a kind of McKenna judgement?

      • The Irish Courts have (like in the UK) been generally reluctant to get involved in the internal operation of the Dáil. They have been active in promoting democratic legitimacy and the independence of the electoral process (which is a good thing). So it follows the same principles that we saw in McKenna. I’m not sure it shows we’re moving away from the UK. The UK today declared the election of a Labour MP void because it found he breached the electoral acts there.

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