Constitutional - The Oireachtas

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Overview

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Dail Elections
(ii)Voting and Election Issues
(iii)The Seanad
(iv)The Dail’s Financial Function
(v)Legislative Process
(vi)Money Bills
(vii)Rules of the Oireachtas and JR
(viii)Privilege

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Art 16 – Dáil Elections

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16.1.1 - 21yrs membership of Dail,
16.1.2- 18 yrs vote
16.1.3- prohibition on discriminatory law
16.2 – member of Dail: not less 1:30,000 & not more 1:20,000
16.2.4- Constituencies shall be revised every 12 years
16.2.6- no less than 3 members per constituency
16.3.2- election w/in 30 days of dissolution of Dail
16.4.1-polling same day as far as practicable, Dail meet w/in 30 days of election
16.5 - Dail 7 yrs or shorter period fixed by law
16.7 – elections regulated re law

Art 26 Electoral Bill 1983 & Redmond (2001) regulation by law under Article 16.7: power limited to procedural & administrative rules&measures for proper & orderly conduct of elections”

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O’Donovan v AG (1961)

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FACTS: Electoral (Amendment) Act challenged as contained major discrepancies in representation
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HELD: Breach of Art 16.2.3

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Art 26 Electoral Amendment Bill 1961

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FACTS: Did Electoral Amendment Bill cure deficiencies in previous Act?

HELD: Yes, only if there has been a ‘manifest infringement’ would the apportionment be found unconstitutional

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O’Malley (1997)

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HELD: If census discloses major changes obligation on Oireachtas to revise constituencies

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Murphy & McGrath (2007)

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HELD: if census shows ratio not ‘as far as practicable’ the same in each constituency, ‘immediate and pressing obligation’ on Oireachtas to revise constituencies.

Here, due to short length of time between release of figures and election, Oireachtas not in breach of Art 16.2

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Doherty v Government, Attorney General & Dail Eireann [2010]

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FACTS: The applicant, a senator and a registered elector for the Dail constituency of Donegal South West, brought an application for judicial review seeking a declaration that the Government not oppose a motion to have a writ moved for a by-election to be held in Donegal South West. The constituency was a three seat constituency which had a vacant seat since June 2009 due to the occupant (Pat ‘The Cope’ Gallagher) having been elected to the European Parliament. Various attempts (2/7/09, 5/5/10 and 29/9/10) had been made unsuccessfully to move the writ. Due to the Governments majority position “there was little or no prospect of the writ being moved” in the short term.

HELD: population of 71,000, the 30,000 ceiling (Article 16.2.2 & 16.2.3) had “been exceeded to a very considerable extent”.
Kearns J: “It seems to me that a citizen's constitutional rights are trenched upon and significantly diluted when no effect is given to rights for representation clearly delineated in the Constitution. These are rights which might usefully be characterised as forming part of the "constitutional contract" between the citizen and the State.”

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Voting and Election Issues

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Pre-Approval of Parties

Loftus (‘79) - registrar approves parties to run in election: keeps bogus parties out of political sphere

Weighting of Ballot Papers

O’Reilly (‘86) – alphabetical –no evidence not free and informed choice

Secrecy

McMahon (‘72) – Supreme Court rejected states argument that personal identification needed on ballot to stop impersonation- disproportionate

New Generation

Reynolds (‘73) - not on register, so couldn’t vote

Disabilities

Draper (‘84) - postal vote for disability only practicable for Gardai and Defence Forces use

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Voting Issues - Prisoners

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Pearson (2001) excluded from vote: ECHR argument failed in court

Hirst v UK (2004) restriction on prisoners right to vote was ‘blunt and indiscriminate’ (ECtHR). Absolute bar on prisoners voting was unacceptable

Breathnach (2001) prisoner’s inability to vote was due to own voluntary actions. State had no obligation to allow him vote in detention.

2005 Prisoners’ Franchise Bill – provision allowing for postal vote, custodian to facilitate registration and vote. (Lapsed)

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Voting Issues - Candidature

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Redmond (2001): £1,000 deposit required to stand for European election held unconstitutional, many could not afford

King (2004): requirement for 30 nominations, and attendance at local authority, was not so contrary to reasonableness +fairness. Was ‘as good as can realistically be hoped for’.

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Voting and Election Issues - Others

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Kelly (2002): cap on electoral spending, but incumbent member of Dail have facilities: result is ‘unjust, unreasonable and arbitrary’

Ring (2004): Local Government (No. 2) Act 2003 abolished dual mandate, a sitting TD or senator could not be member of a local authority. High Court held no constraint on his membership of Dail, but he had to choose between the two.

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Article 18 - The Seanad

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60 members: 11 nominated 49 elected

Dail eligibility, secret postal vote, single trans vote

Members nominated by Taoiseach

3 NUI, 3 Trinity (7th Amend not implemented) 43 from panels with knowledge & experience as indicated

Not more than 11 not less than 5 from each group

Casual vacancies filled on nomination of Taoiseach

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Article 17 - The Dáil's Financial Function

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Article 17: Dail has responsibility to consider estimates of receipts and expenditure prepared by Government under Art 28. Cannot appropriate public money unless recommended by Government & signed by Taoiseach.

Therefore in charge of public finances

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Madigan (‘86)

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Supreme Court held that tax presumed to be for purpose of contributing to revenue required by the State, courts will not question the imposition of the tax.

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TD (2001)

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If government acts to contravene Constitution court can intervene to secure compliance

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K Security (‘77)

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Charge on public funds must be clearly expressed not matter of implication

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Maunsell (‘40)

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Court rejected notion that Act must be passed before Plaintiff could be paid debt

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Byrne (‘72)

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Indicated Minister could be compelled by mandamus to apply to Oireachtas for funds to meet judgment

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Brady (‘99)

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Supreme Court would not direct County Council to repair road, where no money available to repair same and neither Oireachtas nor Minister were joined to proceedings

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McDaid v Sheehy (‘91)

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Executive acts levying taxes were unconstitutional as this is a legislative power

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Legislation - Article 15.2.1

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‘The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas; no other legislative authority has the power to make laws for the State’

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Two types of legislation

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(i)Primary legislation: acts of the Oireachtas, statutes.

(ii)Secondary legislation: measures enacted by those to whom the Oireachtas has delegated legislative authority. Fills in detail of legislation.

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Legislation- Formal Process

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Stage 1: Minister circulates Bill

Stage 2: General provisions of Bill debated

Stage 3: Committee Stage. Whole House, Select Committee or Special Committee

Stage 4: Report Stage

Stage 5: Formal affair

Bill then goes to Seanad, entire process gone through again, but starts with 2nd stage

Article 23: Generally speaking, Seanad has 90 days, from day Bill sent to Seanad, but can be extended on agreement of both Houses

Seanad can:
-Pass Bill without amendment
-Reject Bill completely
-Return Bill to Dail with amendments

Article 23: if the Seanad rejects or amends a Bill passed by the Dail, Dail can still pass resolution within 180 days to pass the Bill

Article 24: shortening of time given to Seanad if urgent and immediately necessary (Taoiseach must certify)

Note: such a Bill will remain in force for only 90 days, unless both Houses pass resolutions that shall remain in force for longer

Article 25: Once Bill passed by both Houses, sent to President for signature (not earlier than 5th or later than 7th day of receipt). Becomes law on day signed, notice in Iris Oifigiuil

Article 26: President can refer Bill to Supreme Court if constitutionality in doubt

Article 27: President can decline to sign Bill which contains proposal of national importance until will of people sought.

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State (Sheehan) v Ireland (‘87)

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Legislation gave discretion to Government as to when to bring section into effect. Court cannot compel unless no discretion given to Government.

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Money Bills

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Art 22.1.1 – tax, debt, charges on public money, accounts of public money, loans+ matters incidental

Ceann Comhairle decides and certifies

Seanad may by resolution request President to refer question to Committee of Privileges

If no report within 21 days CC’s certificate stands

Art 21 – Money Bill is passed to Seanad for recommendations. If none w/in 21 days or if Dail rejects: still passed. Dail may accept or reject all recommendations.

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Rules of Oireachtas & Judicial Review - Article 15.10

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‘Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties’

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O’Malley v CC (‘97)

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FACTS: Ceann Comhairle disallowed part of a Question as answered by Minister in the past

HELD: Inappropriate for court to intervene as involves the operation of internal machinery of debate

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Maguire v Ardagh (2002)

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HELD: Supreme Court held that Oireachtas could not establish committee to enquire into Abbeylara affair, as would affect good name of those not in either House. Court may examine manner in which inquiry established as not interfering in Oireachtas’ regulating of own affairs.

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Howlin v Morris (2005, 2006)

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FACTS: Brendan Howlin TD refused to disclose identity of informant to Morris Tribunal, claiming privilege within Art 15.10
-HELD: Art 15.10 afforded no privilege to Howlin, it was not self-executing. It allowed the Houses to make its own rules on this matter (but no such rules or motions re private papers had been passed). Hardiman J:

"The text of the Article nowhere envisages that a person or body outside the Oireachtas will exercise the powers conferred on that body. There is no precedent of which I am aware in which a court has actually exercised a power which the Constitution has conferred on the Oireachtas or either House thereof Indeed, this court has several times declined to interfere in "the internal machinery of debate of the House" because this is "within the competence of Dail Eireann eireann to deal with exclusively, having regard to Article 15.10 of the Constitution" (see O'Malley v An Ceann Comhairle [1997]1 IR 427, per O'Flaherty J.). On the small numbers of occasions when the courts have been prepared to supervise the orders or procedures of an Oireachtas body, it has been at the suit of non-members whose rights were affected."

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Privilege -statements in House

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Art 15.12-reports, publications, utterances

Art 15.13-privilege from arrest to + from + in Oireachtas

Art 15.10- Oireachtas to make its own rules re privilege

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AG v Hamilton (No.1)(‘93)

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Extended privilege to Tribunals (but 17th Amend later overturned this decision)

HELD: collective responsibility argument won out
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But overturned by 17th Amend: meetings of government confidential except as High Court may determine in interests of administration of justice or overriding public interest

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Garda Representative Assoc v Ireland (‘89)

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FACTS: whether 15.13 prevented reliance on assurances of Minister in Dail by litigants in estoppel case

HELD: May use as some evidence not as basis to sue

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Ahern -v- Judge Mahon & Ors. (2008)

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HELD: Tribunal could reproduce his statements to the Dail, but could not question about the statement or its truthfulness. Mr Ahern would be judged by the court of public opinion, not the Tribunal.

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AG -v- Hamilton (No.2) (‘93)

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Cannot be forced directly or indirectly to give evidence re utterances. Absolute Privilege, very far reaching, significant restriction on public right to maximum availability of all relevant evidence

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Cabinet Confidentiality

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Common Law- Minister & other civil servants could refuse to hand over documents to legal proceedings if Minister decides contrary to public policy (‘Executive Privilege’)

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Murphy -v- Dublin Corporation (1972)

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HELD: Sup Ct rejected common law position. Wanted a CPO declared invalid needed inspector’s report. For court, not Minister to decide on disclosure of documents – cannot protect a class of document

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Ambiorix v Minister for the Environment (1992)

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FACTS: discovery re classification of sites under Urban Renewal Act.

HELD: Sup Ct rejected argument that disclosure would ‘prejudice collective responsibility’ of Government.

Here, the plaintiff sought to obtain discovery (i.e. a sworn affidavit listing documents that were the possession of the Minister) in the context of a challenge to the Minister to attribute certain classifications to particular building sites under the Urban Renewal Act 1986. The State argued that the production of such documents "could prejudice the confidentiality and the collective responsibility of the Government". The Supreme Court rejected this argument and re-stated Murphy.

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Art 28.4.3 - as inserted by 17th Amendment

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The position now is governed by that amendment, which amended Art 28.4.3 as follows:

The confidentiality of discussions at meetings of the Government shall be respected in
all circumstances save only where the High Court determines that disclosure should be
made in respect of a particular matter-

(i) in the interests of the administration of justice by a Court, or
(ii) by virtue of an overriding public interest, pursuant to an application in that behalf by a tribunal appointed by the Government or a Minister of the Government on the authority of the Houses of the Oireachtas to inquire into a matter stated by them to be of public importance.