The Oireachtas

Question 1

1. Dáil Elections: Art 16 - (a) The Provisions

Art 16.2 deals with the representational character of the Dáil:

Answer 1

 The no. of members will from time to time be fixed by law, but the total no. of members shall not be fixed at less than one per 30k of population or more than one per 20k of population.
 16.2.3: Ratio bw no. of members to be elected per constituency & the population per constituency (per last preceding census) shall so far as is practic be same throughout country
 16.2.4: Oireachtas shall revise the constituencies once every 12 years.

Question 2

1. Dáil Elections: Art 16 - (a) The Provisions

Art 16.7

Answer 2

states that subject to the other provisions of Art 16, elections for membership of the Dáil
including filling casual vacancies shall be regulated in accordance with law.

Question 3

Relationship between Art 16.7 and the rest of the Art is very important:

Re Art 26 and the Electoral Bill 1983 [1984]

Answer 3

• Held the art 16 election provisions as a comprehensive code for elections subject only to statutory regulation of such election, not conditions of eligibility re voting.
• Thus the Bill couldn’t extend the vote to non-citizens but the Const has been amended since.

Question 4

Art 16 and Proportional Representation –“So far as is practicable”(AFAP)

O’Donovan v AG [1961]

Answer 4

• Argued Electoral (Am) Act 1949 unconstitutional as it altered the ratio of representation in Dáil
• Art 16.2.3 says the ratio should be the same throughout the country but Art 16.2.4 says the Oireachtas can revise it every 12 yrs w due regard to changes in the distribution of the population
• Claimed the discrepancies in representation ranging from (1 per 16k to 1 per 21k) were in breach
• Gov raised practical problems in fulfilling obligations such as geographical difficulties (lake running through a country boundary) or sparsely populated areas.
• But court held specific difficulties inherent in the parliamentary system were to be discounted and only administrative and statistical difficulties could be considered.
• Considering ‘as far as is practicable’, noted Const didn’t give guidance on the type of difficulties to be taken into acc. Interpreted this as restriction on enlargement of power by the legislature.
• Budd agreed the job could have been done better and accepted P had established there were other ways to divide up the country w/o admin difficulty and respecting ‘political equality’ better.

Question 5

Art 16 and Proportional Representation –“So far as is practicable”(AFAP)

Re Art 26 and Electoral (Amendment) Bill 1961 [1961] Tempered with O’D

Answer 5

• Challenge to legislative response to O’D: Electoral (Amendment) Bill 1961.
• Approved O’D but emphasis scientific precision was not required and would only find the apportionment unconstitutional in cases of manifest infringement.
• Allowed factors such as respecting “well-known” county boundaries, divisions created by physical features such as rivers and lakes to be reasonably considered by the Oireachtas.
• Census issue: argued if the Bill reflected census population figures that became available at any point before the President signed it, the Bill would be spent and P shouldn’t sign it.
• However, held the census reference means the ‘last available census’.

Question 6

Art 16 and Proportional Representation –“So far as is practicable”(AFAP)

Murphy & McGrath v Minister for the Environment [2007]

Answer 6

• 2 TDs argued the results of a census revealed the ratio bw the number of persons to be elected from and the population of constituencies was not, as far as practicable, the same throughout…
• Dispute re meaning of census: Preliminary reports on the census were held insufficient to meet the wording of Art 16 as the last preceding census. Must be an definitive benchmark.
• Census said the ratio was not as far as practicable the same: Held the level of disparity revealed by the census showed it was as least as great as the disparity in O’D. Held court must adopt a broad view as to whether the constituencies, as a whole are, so far as is practicable, proportionate
• Held exact mathematical precision is not needed.
• Issue of time any amendment of constituencies must be done: Held if a census showed the ratio was not AFAP the same in each constituency, it didn’t render a forthcoming election invalid, but imposed an immediate and pending obligation on Oireachtas to revise the constituencies.
• No electoral act became immediately unconstitutional upon publication of the census results.
• Recommended the Oireachtas minimise gaps bw census publication and revision of constituencies

Question 7

Voting and Election Issues - (a) Pre-Approval of Parties

Loftus v AG [1979]

Answer 7

• Electoral Act 1963: Said a registrar would approve new political parties to stand in election
• The registrar could only approve parties that, in his opinion, were (i) a genuine political party and (ii) organised to contest a Dáil election or local election. One party refused and challenged.
• Held there’s no interference with bona fide parties as the regulation was needed to keep bogus
  parties out of the political sphere: if bona fide, you’ll be fine. Held proportionate regulation.

Question 8

Voting and Election Issues - (b) Weighting the Ballot Paper?

(b) Weighting the Ballot Paper?
O’Reilly v Minister for the Environment [1986]

Answer 8

• Argued it was unconstitutional for ballot papers to be listed alphabetically on basis there was evidence to suggest those listed higher tended to get more votes. Rejected.
• While noting a better system could be used, the legislation did not fail for this reason: no reason
  to suggest electors were not making a free and informed choice.

Question 9

Voting and Election Issues - (c) Secrecy

McMahon v AG [1972]

Answer 9

• Held legislation that provided for some degree of personal identification on the ballot was unconstitutional under Art 16.1.4 as the voting must be by secret ballot.
• Held it was there to prevent personation, but held this could be done in a less restrictive way.

Question 10

Voting and Election Issues - (d) A New Generation Restrained

Reynolds v AG [1973]

Answer 10

• Amendment reduced voter age to 18, but election scheduled before register of voters could be compiled. This potentially left 140k voters out. Despite being 18, R couldn’t use his vote.
• Rejected R’s claim for declaration he was entitled to vote: relied on 16.1.3 referring to the adult citizen’s compliance w the provisions of the law re election of members of the Dáil
• Held the right to vote didn’t accrue solely on reaching 18 but compliance too. He hadn’t complied as he wasn’t on the register so thus couldn’t vote.
• NB: Puts undue emphasis on State’s power to regulate elections to detriment of the right to vote

Question 11

Voting and Election Issues - (e) Disabilities and Election Facilities

Draper v AG [1984]

Answer 11

• Due to her MS, D unable to vote in elections. Claimed State failed in its constitutional duty to provide machinery for her to exercised her (claimed) right to vote under Art 40.3 and 16.1.2
• Gov said considered postal voting, but decided against.
• Held they must provide a manner of voting which, AFAP, includes right of every citizen to vote.
• Postal voting involves risk of abuse and it’s for the legislature to strike a balance between the right to vote of the physically disabled and the risks of abuse of postal voting.
• SC upheld this decision: held the State may well regard the cost and risk involved in providing
  special facilities for particular groups as not justified. Deference: state didn’t even argue this

Question 12

Voting and Election Issues - (f) Prisoners

Hirst v UK [2004]:

Answer 12

Can’t have a blanket ban on all prisoners voting irrespective of sentence length/gravity

Question 13

Voting and Election Issues - (f) Prisoners

Breathnach v Ireland [2001]

Answer 13

• The detention of Walsh meant it was impossible for him to exercise his vote.
• SC ultimately held the State had no obligation to provide machinery for him to vote in detention.
• Held this was due to his own voluntary actions (violent and in solitary confinement).

Question 14

Voting and Election Issues - (f) Prisoners

Murray v Ireland:

Answer 14

Couple killed garda and both in prison. Argued this infringed their right to a family.
Rejected: lights aren’t lost, simply places their rights in abeyance.

Question 15

Voting and Election Issues - (g) Candidate Requirements

Redmond v Minister for Environment [2001]

Answer 15

• S.13 European Parliament Elections Act 1997 required a person wishing to stand for EU election had to give a £1000 deposit for candidacy to be accepted.
• Deposit returned if he got 1/3 of quota but this is v high so was essentially the ‘cost’ of candidacy.
• State argued it prevented against crank candidates, but held it overshot this legitimate objective.
• Discriminated against those who couldn’t afford it and those who could (Art 40)
• Held State could secure the objective by less restrictive methods e.g. a system requiring collection of no. of signatures. Failed to use the least restrictive means possible to achieve the objective.

Question 16

Voting and Election Issues - (g) Candidate Requirements

King v Minister for Environment [2004] Follow up decision

Answer 16

• New nomination system whereby candidacy was accepted where 30 nominations were given and requiring the assentors to show identification at the offices of the Local Authority.
• Issue: office hours of LAs meant assentors had to take time out of their work day to go.
• However, the court said “it’s as good as can realistically be hoped for”
• Applied Tuohy standard, emphasising the need for deference and restraint. Weird.

Question 17

Voting and Election Issues - (h) Other Election Cases

Kelly v Minister for Environment [2002]

Answer 17

• Argued caps on electoral expenses were unconstitutional. Incumbent Dáil members could use Dáil facilities as part of their campaign (printers etc.) without having to declare it.
• SC upheld HC who said the legislation was unconstitutional, paying heavy regard to the notion f electoral equality: State must treat equals equally.

Question 18

Voting and Election Issues - (h) Other Election Cases

Ring v AG [2004] NB Local elections

Answer 18

• Argued abolishing dual mandate denied R right to stand for local elections under art 28A.
• Held as there’s no constitutional right to stand for election in local authority (unlike Dáil), the Act is not an impediment to him remaining in the Dáil.
• He must choose between being a Dáil member and being a member of Mayo County Council.

Question 19

Voting and Election Issues - (h) Other Election Cases

Kiely v Kerry County Council [2015] Local

Answer 19

• K candidate for election in KCC in 2014. On final count, lost out on final seat by two votes.
• Issue: returning officer included a no. of votes w a sequence of numbers not starting w 1. K argued he was wrong to include these. SC allowed appeal and ordered a fresh count of ballots.
• Held a substantial margin of appreciation must be given to returning officers when deciding whether he can count a vote or not. However, he has no discretion re interpreting the law.
• Held K established a ground of challenge i.e. election not conducted in accordance w law as require under the act, but noted a petitioner must also establish it was likely to affect the result.
• Noted if an error was “electorally ineffective”, it wouldn’t be sufficient to set aside the const right of
  the electorate to elect a representative. But here, was only 2 votes!! Effective. Recounted.

Question 20

3. Dáil’s Financial Function

Art 17:

Answer 20

Essentially, the Dáil is in charge of public finances. Courts take cautious approach towards claims involving the court second-guessing matters of fiscal policy.

Question 21

3. Dáil’s Financial Function

TD v Minister for Education [2001]

Answer 21

• Re legitimacy of HC mandatory order directing Minister to provide facilities for children at risk.
• Held only if it was established the Gov had acted in a manner in contravention of the Const could the Courts intervene with a view to securing compliance. Other than that, they will not.

Question 22

3. Dáil’s Financial Function

K Security v Ireland [1977]:

Answer 22

• Public funds are entrusted by Const to Gov subject to control and supervision of the legislature.
  Thus seems nothing can be ordered out of public funds unless there is legislative allowance for such.

Question 23

4. Legislative Process (Arts 20 – 25)

State (Sheehan) v Gov of Ireland [1987]

Answer 23

• Civil Liability Act 1961 abolished the distinction bw non-feasance and misfeasance, however the provision was never brought into force so the distinction remains to today.
• SC held nothing can be done to require Gov to bring it into effect as the Act incl. a discretion to
• Held if the discretion didn’t exist it would be unconstitutional to refuse to commence it.

Question 24

5. Rules of the Oireachtas and Judicial Review

Art 15.10

Answer 24

Each house shall make its own rules and standing orders with power to attach penalties for infringement and shall have power to ensure freedom of debate, protect official docs & private papers
of members and protect itself and Ms against ppl interfering w/corrupting Ms exercising their duties

Question 25

5. Rules of the Oireachtas and Judicial Review

O’Malley v An Ceann Comhairle [1997] INTERNAL

Answer 25

• Order 33 SOs of Dáil: CC must examine all Qs put to House & in certain circs can amend the Qs
• O’M was TD who sought to put a Q to Minister. CC disallowed part of the Q saying the Minister had already answered it in the past. O’M sought JR of this. SC didn’t allow it.
• Held how Qs should be framed is a matter of internal workings of the Dáil and it would be inappropriate for courts to intervene unless in extreme circs.
• Noted while Dáil’s entitled to manage own affairs, if gov were to abuse its majority so as to not fulfil constitutional obligations then courts would intervene. This issue was purely internal.

Question 26

5. Rules of the Oireachtas and Judicial Review

Maguire v Ardagh [2002] EXTERNAL

Answer 26

• SC was willing to hold the Oireachtas couldn’t establish a committee to enquire in the Abbeylara affair, however, held the interference here was v diff to that sought in O’M (purely internal issue)
• Held different considerations apply where the Oireachtas purports to establish a committee to inquire and make findings on matters affecting the good name and reputation of citizens not a member of either House. Doesn’t trespass into Oireachtas’ role of regulating own affairs.

Question 27

5. Rules of the Oireachtas and Judicial Review

Howlin v Morris [2006]

Answer 27

• Hardiman: “Art 15 does not envisage person/body outside Oir will exercise the powers conferred on it and this court has several times declined to interfere in the internal machinery of the House”.
• Not a self-executing power, but power to make rules & protect docs & private papers of members
• Here, TD was told about malfeasances by certain gardaí that would’ve been v relevant to the M tribunal’s inquiry into this. Refused to give identity of informant claiming privilege under art 15
• Did Art 15.10 create a self-executing privilege in relation to the private papers and the meaning of that term (phone records sought clearly came within this)? NO
• Held 15.10 didn’t justify privilege claimed: 15.10 confers a power on Houses to pass resolutions to protect priv papers of members. BUT this was a power of the House NOT individual members
• The right was not self-executing: it required “laws”/rules to have actually been made invoking the
  power and setting out conditions for the protection of the papers. Not done

Question 28

6. Privilege

Art 15.12

Answer 28

All official reports and publications of Oireachtas and utterances made in either House wherever published shall be privileged.

Question 29

6. Privilege

Art 15.13

Answer 29

Members shall be privileged from arrest in going to and returning from, and in the
precincts of, either H and won’t, in respect of any utterance in the H, be amenable to any court than H.

Question 30

6. Privilege

Attorney General v Hamilton (No 1) [1993]:

Answer 30

Held parl utterances privilege extends to Tribunals so a member can’t be amenable to a Tribunal anymore than court: can’t be made explain his utterances.

Question 31

Privilege

Garda Representative Association v Ireland [1989]

Answer 31

• Did 15.13 prevent G from relying on assurances by a Min in Dáil as part of an estoppel argument?
• Held they could rely on it as evidence of the Min’s views: While houses must be free to debate important issues, parliamentary debates provide a record of the views of eminent politicians
• Held you may rely on it as evidence, but not sue in respect of it. That’s not permissible.

Question 32

Privilege

Ahern v Judge Mahon [2008]

Answer 32

• JR brought by A re Tribunal’s entitlement to examine A’s statements in the Dáil (parl privilege)
• Argued Art 15.13 prevented the Tribunal asking him Qs re utterances in the Dáil.
• Tribunal accepted it couldn’t ask Qs re the statements but they wanted to draw A’s attention to inconsistencies in his statements to the Dáil and the evidence he gave to the tribunal.
• Kelly J noted in AG v Hamilton (No 2) they held a member can’t be forced to give evidence at a tribunal re utterances made by him in either house.
• It held 15.12 and 15.13 are a very far reaching privilege and represented an absolute privilege that in many instances represents a major invasion of personal rights of ppl and a significant restriction on the important public right of maximum availability of all relevant evidence.
• Kelly, referring to UK precedents on parl priv, held 15.13 and case law protected a member from
  attempts to make him amenable to anybody other than house. No power to Q A re utterances.

Question 33

Kerins v McGuinness [2019] Case Note

Background

Answer 33

• Former Chief Exec of Rehab appeared before M as members of the Dáil’s Public Accounts Committee (PAC) in February 2014 to discuss the State funding received by Rehab.
• K under no legal obligation to appear and did so voluntarily. K wasn’t given prior notice of many of the matters discussed and complained they were outside the PAC’s jurisdiction.
• HC noted much of what was discussed was damaging to her professional and personal reputation.
• K said she was v traumatised after appearance and became acutely ill after (incl. suicide attempt).
• K sought declarations that PAC’s activities were unlawful, tainted by bias and sought damages.
• M argued any utterances in parl were privileged members couldn’t be made amenable re them
• K refused to attend further hearing on ill-health grounds so PAC applied to Committee on Procedures and Privileges (CPP) under the 2013 Act of such for powers to compel her appearance
• But CPP refused on grounds the proposed investigation of Rehab and K was ultra vires the PAC.

Question 34

Kerins v McGuinness [2019] Case Note

High Court

Answer 34

High Court: Refused the reliefs K sought.
- Held K not compelled to attend PAC, to answer Qs or to remain before it and distinguished Maguire v Ardagh, Re Haughey and Callely.
- PAC had no adjudicative function and didn’t purport to make findings of fact in relation to K.

Question 35

Kerins v McGuinness [2019] Case Note

Supreme Court generally?

Answer 35

Supreme Court: K permitted a leapfrog appeal to SC. Clarke CJ reversed the HC decision.
- Held there’s no absoluter barrier posed by the Const in considering the issues K sought to litigate
- But also recognised proceedings can’t be brought involving the court breaching the privileges and immunities in Art 15 or acting in a manner to invoke jurisdiction re matters closely connected with those privileges or which would otherwise amount to a breach of the separation of powers.
- Held where a citizen is affected by an unlawful action of a Oir committee, the primary assessor of an approp remedy is the Oir who enjoys a v wide margin of apprec re how it conducts its business
- Thus the court’s jurisdiction is limited to instances where there was significant and unlawful acti on part of the Committee that had gone unremedied by the Oireachtas itself

Question 36

Kerins v McGuinness [2019] Case Note

SC Conclusion?

Answer 36

• Concluded it wouldn’t be a breach of the separation of powers for the court to declare the PAC’s actions unlawful due to fact it was acting outside its terms of reference. CPP itself found this.
• Also assessed PAC was acting significantly outside of its remit: PAC invited K to attend on one basis but proceeded to deal with her on an entirely different one.
• Granted K a declaration that PAC acted unlawfully by conducting a public hearing in a manner significantly outside its terms of reference and departing significantly from the terms of invitation
• Thus a citizen who accepts an invitation to attend before a committee of the Oireachtas is entitled to expect it would act within the boundaries of the invitation extended.

Question 37

Kerins v McGuinness [2019] Case Note

But, what implication of SC ruling?

Answer 37

• BUT no certainty of damages: must establish causal connection bw PAC actions and her suffering
• Noted where the departure from const norms by Oireachtas or committees was significant the court may possess an exceptional jurisdiction in its residual role as guardian of the Const to intervene to vindicate the const rights of citizens or protect the overall constitutional fabric i.e. the Callely
  exception to general rule of non-justic of official Oireachtas acts, but left for another day

Question 38

O’Brien v Clerk of Dáil Éireann [2019] Case Note

Background

Answer 38

• Action brought re utterances of two TDs in Dáil that revealed most of the info which an injunction he had been awarded covered (restraining disclosure of his banking information)
• Thus had to tell HC the orders must be varied, until point where almost nothing covered by them
• Sought declarations from HC that the TDs overstepped their constitutional role and trespassed into the judicial domain when they revealed banking info subject of an interlocutory injunction.
• TDs argued they were protected by parl privileges and that these issues were non-justiciable and to entertain the proceedings would itself constitute a breach of the separation of powers.

Question 39

O’Brien v Clerk of Dáil Éireann [2019] Case Note

HC first strand

Answer 39

(1) High Court not satisfied the utterances “determined” the HC injunction proceedings:
- Held what is prohibited by the Buckley (SF Funds) case is a ‘determination’ in sense of a removal of courts power to make a judicial decision on a justiciable controversy by Oir by legislation.
- Incl. Acts telling court to make a particular decision, how to treat evidence, restricting witnesses.
- This not the same as a TD making an utterance rendering the justic controv before the court moot
- However, the court went on to examine separately the issue re whether there was an ‘interference’ w the admin of justice and whether courts have jurisdiction to entertain proceedings re utterances
- Noted Hamilton (No 2) held (i) 15.12 priv is not confined to a defamation priv, (ii) immunity in 15.13 is v broad (iii) person rights can’t trump the privileges and immunities and (iv) 15.13 immunity protects a TD from judicial response in cases that otherwise would be contempt of court
- Rejected that 15.12 was confined to documents. Also noted O chose not to sue TDs personally.
- Held the privilege in 15.12 must apply to the utterances themselves and ultimately finding that court could not engage with the utterances by the TDs as per Hamilton (No 2).
- Then it considered whether it had, despite its conclusion that the utterances of the TDs were not in general reviewable, a residual jurisdiction to intervene in exceptional cases and should it here.
- Held even if the Callely jurisdiction did exist, this case didn’t fall within it. Thus it concluded it lacked jurisdiction to adjudicate on the utterances or grant any declaration in respect thereof.
(2) HC: O’B claimed TDs failed to comply with own Standing Order 57

Question 40

O’Brien v Clerk of Dáil Éireann [2019] Case Note

High Court second strand

Answer 40

(2) HC: O’B claimed TDs failed to comply with own Standing Order 57
- Failed as they hadn’t got permission in advance of their utterances to deal w sub judice matters
- O complained to the CPP who ruled there’d been no breach of the SO.
- Argued court had jurisdiction to review the work fo the CPP as it was a proceeding that affected the rights of a person who was not a member of the Houses.
- Rejected: Distinguished Maguire v Ardagh: here P’s good name stood to be affected by the compulsory process before an Oir committee. But here, O sought a vindication from the Committee for something that already happened.
- Also distinguished Callely: Absence of a legislative basis for the Committee’s proceedings.

Question 41

O’Brien v Clerk of Dáil Éireann [2019] Case Note

Supreme Court?

Answer 41

Supreme Court: Permitted to bring a leapfrog appeal but the SC upheld the HC’s decision
- SC agreed claim was non-justiciable and held proceedings against the CPP decision constituted an ‘indirect or collateral challenge’ to TD utterances that was constitutionally impermissible.
- Held it’s for the Oireachtas alone and not the courts (unless Callely exception) to protect any rights infringed by privileged utterances as arose here.
- Held even if Callely ex arose, only applies in case of egregious breach or persistent failure by Oir
- SC was satisfied that the CPP, in considering complaints by citizens, is carrying out a delegated constitutional function and enjoys the same immunities and privileges as Oir while performing it
- Accordingly, O’Bs attempt to review the CPP’s decision was non-justiciable.

Question 42

Cabinet Confidentiality

Answer 42

At common law, a Minister could refuse to disclose docs/give info in legal proceedings if he made a declaration that disclosure would be contrary to public policy or detrimental to public interest/service
Murphy v Dublin Corporation [1972]REVERSED this.

Question 43

Following AG v Hamilton (No 1),

Answer 43

Art 28.4.5 was amended: The confidentiality of meeting of government shall be respected in all circs except where the HC 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.