(Originally posted on quiatimet.com 22/03/2011)
Today the final Moriarty report was revealed. The allegations therein have caused many to speculate whether charges will be made against any of the persons involved for corruption. One of the people named in the report happens to be that of Michael Lowry who is a sitting TD for the constituency of North Tipperary. If it were to be the case that the House sought to expel a TD then it would make for both interesting political debate and throw up some interesting questions for constitutional law.
The constitution itself is silent on this point only to allow for membership to be in compliance with the law on the area.
The relevant law on this issue is to be found in Section 42 of the Electoral Act 1992 which deals with cesser of membership in the Dáil in certain circumstances. Under the section a TD may lose their seat for the following two reasons:.
Firslty, where the member is adjudged to be a Bankrupt. This is how James Larkin lost his seat in 1928. Larkin refused to pay a court ordered settlement from a libel case and was adjudged to be a bankrupt by the court.
Secondly, where the member has been sent to prison for a term exceeding 6 months. Liam Lawlor did spend time in prison for contempt of court but as the term did not exceed 6 months he was not disqualified. In fact many will remember his appearance in the Dail Chamber after being conveyed to Leinster House in a Prison Van.
It has been rumoured that there is provision to remove a member by vote of house. If there is I have yet to come across the legal provision for such as move. But if there was to be such provision it would be based on very precarious grounds. It would be possible for the House to suspend the member from the chamber but the pending appeal from the Ivor Calley decision may halt a similar attempt. The Callely decision was a based on the constitutional right to fair procedures and the fact that members of the house would be casting judgement on the fate of a fellow member. If the House were to expel a member then the realm of constitutional legal theory would interact with reality thereby creating an uncertain legal situation with a high probability of a constitutional case being taken against the whole house.