Removing a TD from Office – Harder than you think…

Jennifer Kavanagh 23/03/2011

(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.

Advertisements

12 thoughts on “Removing a TD from Office – Harder than you think…

  1. Of course there is no way to impeach or fire a TD because accountability is something for the little people not the political class.

    What I’d like to know is where did all the TDs just elected get the money from to fund their campaigns? Why is not one of them have provided verifiably audited accounts of how they were funded?

    I’ll be interested to see how much the new TDs claim in expenses, particularly Mr Ross, seeing as to date no one ever publishes the receipts to prove their expenses are legitiable – instead we get the ‘I’m entitled to claim x amount’.

    So what’s changed since the 90s? Where did FG get the money for it’s campiagn, where did FF, where di Lab or the Greens etc?

  2. TDs are accountable to the electorate, not their fellow members.

    I’m not even sure that the two grounds above are necessarily good reasons for disqualification, whatever about expulsion.

    Why is a bankrupt an unfit person to hold parliamentary office? Would a bankrupt be significantly more fiscally compromised than any of our existing TDs who are required to raise significant sums for election campaigns, are subject to party whips and cannot hold ministerial office without meeting additional standards criteria?

    Being in prison may make you unavailable to your constituents in the constituency, but not in the Oireachtas while it is in session, so if they accept that situation, are they not entitled to elect you anyway?

    As I see it, the grounds for disqualification should be a conflicting public duty, obliging you to resign from one in favour of the other, as with Commissioners, MEPs, etc.

    Some changes in a TDs circumstances beyond those disqualifications might be grounds for an automatic recall election, as part of a wider recall mechanism.

    But I have a visceral distrust of anything that restricts the slate of candidates who can present themselves before the electorate.

  3. In essence then “Tribunals” are a toothless form of inquiry. If Lowry insists that Moriarity’s conclusions are factually untrue & incorrect then surely he has the right to sue for libel, failure on his part to take this course of action leaves people to draw their own conclusions makes tatters of his protestations of innocence. In light of this, legislation is necessary immediately that bars those of dubious character from holding political office.

  4. @ NB:”TDs are accountable to the electorate, not their fellow members”

    That’s not the case. Elected to parliament, you are accountable there. Your electors – a sub-sample of the constituency who actually elected you! – no longer matter. I would have thought that was obvious.

    The bankrupcy thing is an wood-worm riddled antique. Burn it!

    BpW

  5. Maybe we should be agitating for a constitutional amendment giving parliament a mechanism whereby a TD can be impeached for behaviour unbecoming. If we are to have real accountability then it has to be possible to “sack” somebody from thier job. Perhaps the upcoming Presidential election could be used to put forward a number of questions to the people,ie Senate, Childrens Bill and an Impeachment Bill?

  6. before we embark upon an orgy of denunciation of michael lowry and denis o’brien for, among other things, making use of tax havens to seclude money – let us remember that we (the republic of ireland) a r e a tax haven. ask mr. sarkozy, or anybody.

    even the drunks in o’connell street after hours get roughed up by the guards the same night. michael lowry has been roughed up by the legal system for fourteen years.

    no one seems to notice that the legal people who are so pompous about others are themselves parasites upon the taxpayer in schemes far more profitable than anything supposedly devised by mr. lowry.

    as a voter in north tipperary, i was originally outraged by lowry’s behaviour. now i am not so sure. even if he were a crook (not proven) he is our crook.

    a barrister gets overpaid €1,000,000 by a typo. if i got the wrong change in a shop, i would go back and refund it. why does he simply not refund the mistaken payment ? there is blue collar crime, white collar crime, and grey wig crime.

    the light at the end of the tunnel for denis o’brien ? might just be the light of the law library gravy train at full steam in the opposite direction.

  7. and i agree with neville bagnall. if you throw lowry out of the dail, you may consider that he deserves it – but do we in north tipperary not have a right to make our own choices ? we are not to be disenfranchised on a whim.

    let the taoiseach pick the cabinet – but leave the people to pick the dail.

    people who know better than the people what is good for the people, are a danger to democracy.

  8. Lowry’s tax affairs are sufficient moral and political reson to judge him unfit for office. And of course the people of North Tip have considered and passed verdict on those tax affairs.

    It speak volumes about those people.

  9. @Brian Woods

    A representatives behaviour in the Oireachtas is subject to to the rules of the Oireachtas. But to allow a majority of the Oireachtas, or even a super-majority, to deny the people their chosen representation is risky and undemocratic.

    I wish the people of North-Tipperary had chosen anyone but Lowry. But the electorate frequently make poor choices. The cost of those choices is coming home to us now. But the first principle of representative democracy is that the people choose their own representatives, even if they choose poorly.

    The culture of cute-hoorism led to corruption. I heard the following on the radio yesterday: “Culture eats strategy for breakfast”. If we want to rid our parliament of corruption and reduce the pork-barrel, we can’t do it by changing the rules alone. First and foremost we must change the culture. In parliament yes, but more importantly in the electorate. If we fail to do that, the crooks will just get better at covering their tracks.

    As long as it is acceptable to have an “Our Crook”, corruption is inevitable and we will all pay a larger cost, sooner or later. We have to learn that the beginning of high standards in high places is to reject personal or community gain that comes at the price of those standards.

    I’m not naive enough to think the pork-barrel can be completely eliminated – its endemic to politics in most countries. But the culture of “forgivable personal corruption as long as you look after your community” needs to be rejected by the electorate first and foremost. And that is about more than politicians.

    Its to be found in all walks of life in this country. To take just one common example that I am guilty of myself (in potential, if thankfully not yet in practice): using private health insurance to jump the public queue. Understandable. Forgivable. But corrupting of the standards of the health service.

  10. @ NB: Thanks for comments.

    Changing culture is indeed the way to go. But I would venture it is not possible, so some other process is necessary. Sad, but that’s the way it is.

    Having individual TDs answerable to their parliament is essential. If parliament judges one of their own members ‘unfit’, then that’s it. I assume ‘due process’ would be applied, but since privilige is not an issue in parliament, then the accused shall answer all questions put to them. Fail to answer, and you are out.

    Those that elected that TD in N Tipp(just under 30%) did so for whatever reasons they had in mind – but just over 70% voted for someone else. The voters are indeed sovereign – but once the TD takes up seat, parliament has jurisdiction (else you are at the mercy of minorities).

    See what happened to Sarah Carey? Short shrift!

    Make TDs accountable to the parliament. It in no way dis-enfranchises electors.

    Thanks again.

    BpW

  11. “Contrary to what might be suggested in the media, the constituents of North Tipperary are every bit as intelligent and politically sophisticated as their counterparts anywhere else in the country.” (michael lowry.)

    he is wrong, of course. tipperary people are more sophisticated, politically, than their urban counterparts.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s