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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Ring v. A.G. [2004] IEHC 14 (20 February 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/14.html Cite as: [2004] 2 ILRM 378, [2004] 1 IR 185, [2004] IEHC 14 |
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Ring v. A.G. [2004] IEHC 14 (20 February 2004)
RECORD NO. 2003/7096p
BETWEEN/
PLAINTIFF
DEFENDANT
Judgment of Miss Justice Laffoy delivered on the 20th February, 2004.
The Claim
In these proceedings, the plaintiff, who is currently a member of Dáil Éireann and also a member of Mayo County Council, seeks a declaration that s. 13A of the Local Government Act, 2001 (as inserted by s. 2 of the Local Government (No. 2) Act, 2003), is contrary to the Constitution of Ireland and, in particular, Articles 5, 6, 16, 28A, 40.1 and 40.3 thereof and is void and of no effect.
Section 13A within the legislative framework
The Local Government Act, 2001 (the Act of 2001), which is described in its long title as an act to make further and better provision in relation to local government and, in particular, to consolidate with amendments certain enactments relating generally to local authorities, contains, in Part III, provisions regulating local authority membership. Section 12 deals with eligibility for local authority membership and provides that, subject to s. 14 and to the disqualifications set out in s. 13 and to the provisions of s. 19 relating to co-option, a person is eligible for election or co-option to, and membership of, a local authority, if he or she is a citizen of Ireland or is ordinarily resident in the State and has or will attain the age of eighteen years at the relevant day, which is stipulated.
Section 13 of the Act of 2001 deals with disqualifications from local authority membership. Subsection (1) of s. 13 provides as follows:
"Subject to subsection (2), a person is disqualified from being elected or co-opted to, or from being a member of a local authority if he or she-
(a) is a member of the Commission of the European Community, or
(b) is a representative in the European Parliament, or
(c) is a Judge, Advocate General or Registrar of the Court of Justice of the European Community, or
(d) is a member of the Court of Auditors of the European Community, or
(e) is a Minister of the Government or a Minister of State or the chairman of Dáil Éireann (An Ceann Comhairle), or the chairman of Seanad Éireann, or
(f) is appointed under the Constitution as a Judge or as the Comptroller and Auditor General, or
(g) is a member of the Garda Síochána or a wholetime member of the Defence Forces as defined in section 11(4)(b) of the Electoral Act, 1992, or
(h) is a civil servant who is not by terms of employment expressly permitted to be a member of a local authority, or
(i) is a person employed by a local authority and is not the holder of a class, description or grade of employment designated by order under section 161(1)(b) or deemed to have been made under that section, or
(j) is undergoing a sentence of imprisonment for any term exceeding 6 months imposed by a court of competent jurisdiction in the State, or
(k) fails to pay any sum or any portion of any sum charged or surcharged, by an auditor of the accounts of any local authority, upon or against that person, or
(l) fails to comply with a final judgment, order or decree of a court of competent jurisdiction, for payment of money due to any local authority, or
(m) is convicted of, or has had a conviction confirmed on appeal for, an offence relating to any of the following:
(i) fraudulent or dishonest dealings affecting a local authority;
(ii) corrupt practice;
(iii) acting when disqualified."
Subsection (2) of s. 13 deals with the commencement or coming into effect of a disqualification under paras. (k), (l) and (m) of s. 13.
Subsection (1) of s. 13 largely re-enacted sub-s. (1) of s. 6 of the Local Government Act, 1994. It omitted one category included in the latter (chairman of certain select committees of the Houses of the Oireachtas), and included a category not found in the latter (certain persons employed by local authorities who are now disqualified by virtue of para. (i) of sub-s. (1) of s. 13). Prior to the enactment of the Act of 1994 (the Act of 1994), a person who was a Minister of the Government or a Minister of State was disqualified from membership of a local authority by virtue of s. 13 of the Local Government Act, 1991.
Section 14 of the Act of 2001 prohibits multiple membership of local authorities.
The statutory provision at issue in these proceedings, s. 13A, was inserted into the Act of 2001 by virtue of s. 2 of the Local Government (No. 2) Act, 2003 (the Act of 2003), which was enacted on the 2nd June, 2003. Section 13A provides:
"(1) A person who is a member of either House of the Oireachtas is disqualified from being elected or co-opted to, or from being a member of, a local authority.
(2) In respect of local elections to be held in the year 2004 and thereafter, section 13(1) shall be read as if the following were substituted for paragraph (e):
'(e) is a member of Dáil Éireann or Seanad Éireann, or'"
Subsection (2) of s. 2 of the Act of 2003 provides that the section comes into operation and applies with respect to the local elections to be held in the year 2004 and thereafter. Local elections are due to be held in June, 2004.
Eligibility for membership of Dáil Éireann is governed by s. 41 of the Electoral Act, 1992, as amended, which provides as follows:-
"A person who –(a) is not a citizen or Ireland, or(b) has not reached the age of 21 years, or(c) is a member of the Commission of the European Communities, or(d) is a Judge, Advocate General or Registrar of the Court of Justice of the European Communities, or(e) is a member of the Court of Auditors of the European Communities, or(f) is a member of the Garda Síochána, or(g) is a wholetime member of the Defence Forces as defined as defined in section 11(4), or(h) is a civil servant who is not by the terms of his employment expressly permitted to be a member of the Dáil, or(i) is a person of unsound mind, or(j) is undergoing a sentence of imprisonment for any term exceeding six months, whether with or without hard labour, or of penal servitude for any period imposed by a court of competent jurisdiction in the State, or(k) is an undischarged bankrupt under an adjudication by a court of competent jurisdiction in the State,shall not be eligible for election as a member, or, subject to section 42(3) for membership, of the Dáil."
Under a variety of enactments membership of either House of the Oireachtas disqualifies a person from being a member of a statutory authority or board. For example, the Schedule to the Competition Act, 1991, provides that a person who is, for the time being, entitled under the Standing Orders of either House of the Oireachtas to sit therein shall be disqualified from being a member of the Competition Authority. Counsel for the defendant submitted that in the period between 1985 and 2001, there were at least sixty-three instances of similar statutory disqualifications.
In broad terms, s. 13A has an obvious dual effect: it adds a further category of persons who are disqualified from membership of a local authority to the categories already provided for in s. 13(1) of the Act of 2001; and it introduces a further category of disqualification from holding public office for members of the Dáil and Seanad. In colloquial terms, it abolished the dual mandate.
Section 3 of the Act of 2003 amended the Act of 2001 by the insertion of an additional section, s. 237A, which provides that local authorities shall conduct their dealings with members of either House of the Oireachtas in accordance with regulations under sub-s. (3) of that section. The relevant regulations were made by the Minister for the Environment in July, 2003.
Local Government in the Constitution
Prior to 1999, there were only two references to local authorities in the Constitution: in Article 22, in which, in defining a "Money Bill", it is provided that the expressions "taxation", "public money" and "loan" respectively in the definition, do not include any taxation, money or loan raised by local authorities or bodies for local purposes; and in Article 12, dealing with nomination of candidates for election to the office of President, which provides for nomination "by the Councils of not less than four administrative Counties (including County Boroughs) as defined by law" (Article 12.4.2.).
In 1999, the 20th amendment to the Constitution introduced Article 28A which is entitled "Local Government" and provides as follows:
"1 The State recognises the role of local government in providing a forum for the democratic representation of local communities, in exercising and performing at local level powers and functions conferred by law and in promoting by its initiatives the interests of such communities.
2 There shall be such directly elected local authorities as may be determined by law and their powers and functions shall, subject to the provisions of the Constitution, be so determined and shall be exercised and performed in accordance with law.
3 Elections for members of such local authorities shall be held in accordance with law not later than the end of the fifth year after the year in which they were last held.
4 Every citizen who has the right to vote at an election for members of Dáil Éireann and other persons as may be determined by law shall have the right to vote at an election of such of the local authorities referred to in section 2 of this Article as shall be determined by law.
5 Casual vacancies in the membership of local authorities referred to in section 2 of this Article shall be filled in accordance with law."
Plaintiff's case and the defendant's response in outline
In broad outline, the basis on which the plaintiff contends that s. 13A is invalid having regard to the provisions of the Constitution is as follows:
(1) The right of citizens to stand for election to local authorities is constitutionally guaranteed. Section 13A unlawfully interferes with that right.
(2) The right of citizens to stand for election to Dáil Éireann is constitutionally guaranteed. Section 13A unlawfully interferes with that right.
(3) The Constitution guarantees that all citizens shall, as human persons, be held equal before the law. As regards eligibility for membership of a local authority, s. 13A invidiously discriminates between citizens who are eligible to become members of local authorities, on the one hand, and citizens who would be so eligible but for membership of Dáil Éireann on the other hand. As regards eligibility for election to Dáil Éireann, s. 13A invidiously discriminates between citizens eligible to be elected to Dáil Éireann, on the one hand, and citizens who would be so eligible but for membership of a local authority on the other. Thus s. 13A infringes the constitutional guarantee of equality.
(4) Section 13A interferes with the constitutionally protected rights identified in a manner which cannot be objectively justified and which does not comply with the principle of proportionality.
The defendant's response may be summarised as follows:
(1) There is no constitutional entitlement to stand for election to local authorities; any such entitlement is statutory in origin and, accordingly, subject to regulation in such manner as the Oireachtas deems fit and appropriate. In any event, s. 13A does not prevent any person from standing for election to a local authority.
(2) Section 13A does not impose any constraint on the entitlement of a person to stand for election to Dáil Éireann. Section 13A provides citizens with the choice of being elected to one of the Houses of the Oireachtas or to a local authority. The provision of such a choice is not unconstitutional.
(3) There is no constitutional basis for the assertion that s. 13A infringes the constitutional guarantee of equality.
(4) If s. 13A interferes with any constitutionally guaranteed right, it does so in a manner which is fair, reasonable and proportionate, having regard to the interests of the State in the efficient, orderly and effective conduct of the business of the Oireachtas and of local government, having regard to their separate evolving roles, by inter alia:
(a) Maximising the effectiveness of persons who are members of local authorities by disqualifying persons from simultaneously being members of the Oireachtas and of local government;
(b) Relieving local authorities of the requirement to order their business meetings and the business of committees, groups and bodies to which members of the local authority are co-opted, in a manner which does not conflict with the demands on the time, energy and resources imposed on members of the Oireachtas by simultaneous membership of local authorities; and
(c) Relieving the Oireachtas of the need to order its business and meetings around the requirements of persons who are simultaneously members of local authorities.
The evidence
The plaintiff is a fulltime politician. Currently he is a member of Dáil Éireann and he is also a member of Mayo County Council. He is a member of the Fine Gael Party. If this challenge is unsuccessful and he is constrained to choose between membership of the Dáil and membership of Mayo County Council, he will choose to remain a member of the Dáil. He fears that if he is forced to make that choice, he will lose a major part of his political base and he will lose touch with a major part of his constituency. The plaintiff very candidly acknowledged that he was concerned about his prospects of re-election to the Dáil if he is no longer a member of the local authority. He anticipates that he will be watching over his shoulder to see who is in the constituency and what they are at. He anticipates that he will have to spend more time in the constituency, thus defeating the purpose of the abolition of the dual mandate.
The plaintiff expressed the view that it is unfair that a member of a local authority can stand for election for the Dáil, but a sitting Dáil deputy cannot stand for election for a local authority. He considers that this is an unfair advantage to the member of the local authority who is 'on the ground'. The plaintiff anticipates a 'massive changeover' in the membership of the Dáil after the next but one general election.
The plaintiff's objection to the abolition of the dual mandate is not solely related to his concerns in relation to re-election to the Dáil. He believes that members of a local authority and membership of the Dáil complement each other. Membership of the Dáil gives 'clout'. It enables a politician to more effectively represent his constituents at local level. The treatment provided for in the regulations made under s. 237A of the Act of 2001 does not put a member of the Oireachtas in any better position than a representative of the media.
Mr. Tony Gregory, T.D., gave evidence on behalf of the plaintiff. Mr. Gregory is currently a member of Dáil Éireann and also a member of Dublin City Council. He is an independent deputy and currently he is the Whip of the group of deputies who are members of small parties and independents and are known as the Technical Group. Mr. Gregory objects to the abolition of the dual mandate because, in his view, people should have the right to choose who is to represent them at local and national level. He considers that local government in Ireland has a particularly significant role at national level. He referred to the interlinking and the inter-dependency of local government issues: issues that are decided and implemented by the local authority, but are resourced and policy driven from central government. Those issues, at each level of government, are of enormous significance to individuals who live in the relevant area and also organised residents' groups trying, as is their democratic right, to influence policies and decisions. From his perspective as a member of the Dáil and a member of Dublin City Council, Mr. Gregory does not see how the national parliament and the local authority can have totally separate roles while issues which involve the local authority are dependent on national policy and on funding from central government. The organs of government need to inform one another of what are priority requirements in any local community, particularly in areas of inequality. In Mr. Gregory's view, the roles of a national representative and a local representative are not merely complementary; they are interdependent and they inform. If one is experienced at local level, one knows what the problems are, what is being neglected by national government. One is in a better position to give voice to those issues. He believes that the dual mandate enables more effective representation, particularly, for disadvantaged areas. The abolition of the dual mandate precludes him from being involved in any aspect of the decision-making process of local government.
Like the plaintiff, Mr. Gregory is a fulltime politician. If he has to choose between membership of the Dáil and membership of Dublin City Council, he will choose to remain a member of the Dáil.
Ms. Joanna Tuffy also gave evidence on behalf of the plaintiff. Ms. Tuffy is a member of Seanad Éireann, having been elected in 2002. At that time she was a member of South Dublin County Council. She is a member of the Labour Party and, in line with her party's policy, she resigned her membership of the local authority in September, 2003. However, she objects to the abolition of the dual mandate because she considers that the political system, at national level, is losing the perspective of the practising county councillor. A member of the Oireachtas can make a more effective contribution if he or she has the perspective of a practising county councillor. As a member of the Oireachtas, who is not a member of the local authority, one cannot influence decision making at local level and one has no decision-making capacity.
Mr. Patrick Carey, T.D., gave evidence on behalf of the defendant. Mr. Carey is a member of the Dáil. Prior to the enactment of s. 13A he was also a member of Dublin City Council. His constituency, Dublin North West, straddles the jurisdictional areas of Dublin City Council and Fingal County Council, but he was not a member of the latter. He is a member of the Fianna Fáil Party and, in accordance with his party's policy, he resigned his membership of the City Council effective from the 30th September, 2003. Mr. Carey very candidly acknowledged that it is more than likely that he would not have resigned his membership of the local authority but for the enactment of s. 13A. Initially he was extremely uneasy about the abolition of the dual mandate and he made his views known at his own parliamentary party. He characterised it as a fear of the unknown: a fear that somebody might creep up behind you while you were not on the local authority and build up a base. However, since he has stood down from the City Council he has worked closely with his substitute, who is from his own party. After what he described as a period of trepidation, he now finds that the situation is working very satisfactorily, both for himself, his substitute and for his constituents. Moreover his view is that perversely, stepping down has made him more available at local level because he is not tied up in meetings and such like. Mr. Carey said that he is not opposed in principle to the dual mandate; his current stance is for purely pragmatic reasons.
The Court had the benefit of expert evidence from two political theorists on issues raised by the abolition of the dual mandate.
Professor Richard Sinnott, Associate Professor of Politics in University College Dublin, and Director of the Research Programme on Public Opinion and Political Behaviour at the Institute for the Study of Social Change at University College Dublin, testified on behalf of the plaintiff. Professor Sinnott gave his assessment of the implications and the likely consequences of the enactment of s. 13A. His analysis of the Irish electoral system as provided for in the Constitution, the system of proportional representation by means of single transferable vote provided for in Article 16.2.5, is that it is primarily a candidate-based system. The system does not impose any criterion of choice, whether party or otherwise, on the citizens. The voter is free to apply whatever criterion or combination of criteria he or she deems appropriate. Professor Sinnott then considered such empirical evidence as is available as to the criteria which voters have applied in making their choice. He referred to two sources of evidence: opinion polls conducted for the media during election campaigns over successive elections; and research conducted by the Economic and Social Research Institute for the Irish National Elections Study in the aftermath of the general election held in 2002. The evidence from both sources indicates the predominance of "candidate-related" and, specifically, "local constituency-service related" qualities and criteria in the assessments that voters make of candidates putting themselves forward for election to Dáil Éireann. In the light of this, Professor Sinnott commented that it is not surprising that, in the 29th Dáil, "three-quarters of all T.D.s (one hundred and twenty four of them) were elected to a council before becoming a deputy and a further 20 became councillors after they had become T.D.s, leaving only 22 (13%) who have never belonged to a local authority. At the time of the [2002] election, 102 T.D.s (61%) belonged to a council" (Gallagher, Michael [2003] 'Stability and Turmoil: Analysis of the Results' in Michael Gallagher, Michael Marsh and Paul Mitchell (eds.) How Ireland Voted, 2002. Basingstoke: Palgrave at p. 114). Professor Sinnott testified that the evidence shows that membership of a local authority is a route of entry to Dáil Éireann because voters turn to candidates with a record of service in the local council to represent them in the Dáil.
Based on the clear evidence of the predominance of a "constituency-service" orientation amongst voters, Professor Sinnott concluded as follows:
(1) Section 13A significantly curtails the freedom of choice of voters by depriving them of the right to exercise that freedom to select as a member of the Dáil a person who, because of his or her continuing membership of the local authority, seems to them to be best equipped to look after the needs of the constituency.
(2) Voters are likely to continue to be attracted to candidates who provide local constituency service and are likely to prefer the local councillor over a member of the Oireachtas who is prevented from exercising the dual mandate. If voters respond in this way, it will result in a greater turnover in membership of the Oireachtas than has previously been experienced, which will lead to a diminution in the level of expertise in the Dáil.
(3) The incentive for incumbents will be to spend more, rather than less, time in their constituencies.
While Professor Sinnott expressed the opinion that the change wrought by s. 13A on the nature of the electoral choice hitherto exercised by voters will not necessarily achieve the objective of greater expertise among members of the Oireachtas or greater allocation of time by members to legislative activity, he did acknowledge that the abolition of the dual mandate would bring "new blood" into the Oireachtas and would avoid, in scheduling meetings and sittings, the competing requirements of the Oireachtas and the local authority. He also acknowledged that the abolition of the dual mandate can have no impact on the ability of a member of the Oireachtas to make representations, for example, representations to government departments, on behalf of his or her constituents.
Professor Michael Laver, Professor of Political Science in Trinity College Dublin, who gave evidence on behalf of the defendant, outlined the rationale for abolishing the dual mandate against the historical background of a weak system of local government in Ireland prior to the insertion of Article 28A into the Constitution, which he attributed to the high reliance of local authorities on central government funding since the abolition of domestic rates, the fact that the Government could postpone local elections more or less at will, and the existence of the dual mandate. On the contribution of the existence of the dual mandate to the malaise, he quoted from the Report of the Advisory Committee on Local Government Reorganisation and Reform (the Barrington Report) published in 1991 which, at para. 7.2. recommended that to –
". . . distinguish clearly between the roles of national and local government there should be a statutory prohibition on members of the Oireachtas and on M.E.P.s from simultaneous membership of local authorities."
In summary, Professor Laver expressed the view that, from a political science perspective, it is difficult to see any principled argument against the abolition of the dual mandate system. He summarised the arguments in favour of its abolition as follows:
(1) It is designed to enhance the separation of local and national government systems to the clear benefit of both. It removes representational anomalies, for example the representation of some electors at local level by a member of the local authority who is also a member of the Oireachtas, with the perceived 'clout' which that carries, while other electors are not so represented. A distinctive role and status is provided for members of local authorities, thus improving the local government system. On the other hand, the temptation for members of the Oireachtas to be involved at local level in matters more appropriately dealt with by local councillors, whether for defensive or other reasons, is removed, thus improving the national government system. Each system is improved by being enabled to organise its business without regard to the potential conflicts of interest at local level (for example, arising from the fact that electoral areas for local authority elections are smaller than parliamentary constituencies) and at national level (for example, in relation to the possible enactment of legislation to reform the local government system involving redrawing boundaries, redefining powers and such like).
(2) Competitiveness of the Irish political system is increased.
Professor Sinnott expressed the view that a member of the Oireachtas can continue to be an active local politician, notwithstanding the enactment of s. 13A.
The right to stand for election to local authority?
The central plank in the plaintiff's case is that he has a constitutional right to stand for election to Mayo County Council. Accordingly, the core issue for determination in these proceedings is whether the right of a citizen to stand for election to a local authority is a constitutionally guaranteed right.
The Plaintiff's Submissions
The plaintiff's contention is that such right exists and that it stems from a variety of interlocking provisions of the Constitution which complement each other. In particular, counsel for the plaintiff based his argument on the following provisions of the Constitution:
(1) Article 5.
This Article provides that Ireland is a sovereign, independent, democratic state. It was submitted that to conclude that the Oireachtas enjoys a virtual untrammelled power to determine eligibility for, and disqualification from, membership of a local authority would be inconsistent with the guarantee in Article 5 of the democratic nature of the State. The right of citizens to stand at a local election is implicitly constitutionally guaranteed. Support was drawn for this proposition from the decision of this Court in Redmond v. Minister for the Environment [2001] 4 I.R. 64, in which Herbert J. relied on the description in Article 5 of the democratic nature of the State to invalidate the statutory requirement that, in order to be eligible to contest Dáil and European elections, candidates were required to pay a deposit. Herbert J. drew no distinction between elections to the Dáil and elections to the European Parliament. Therefore, as I understand the argument, no distinction should be drawn between elections to the Dáil and elections to local authorities.
(2) Article 6
This Article provides that all powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.
Counsel for the plaintiff emphasised that Article 6 underlines that the ultimate power of the State rests with the people. The people exercise their power through voting. The power of the legislature to circumscribe the residual authority reserved to the people regarding the manner in which they exercise their votes or the consequences of such voting must, as a result, be limited. The power of the people to designate the rulers of the State and, in final appeal, to decide all questions of national policy, must, it was suggested, extend to local government level.
(3) Article 28A
The entire text of Article 28A was quoted earlier.
The constitutional recognition of the role of local government in providing a forum for the democratic representation of local communities contained in Article 28A.1 would be rendered wholly nugatory if the local communities and the people in the local communities did not have a right to stand at local elections. Directly elected local authorities are mandated by Article 28A.2. How would such local authorities be directly elected, counsel for the plaintiff rhetorically asked, unless there is a right to stand for local elections? Article 28A.3 mandates that elections for members of such local authorities shall be held at five-yearly intervals. How would local authorities be elected in a democratic fashion, counsel for the plaintiff rhetorically asked, if there was not a right to stand for election? The answer, it was submitted, is that it is necessarily implicit in the Constitution that there is a right to stand for election to a local authority. Article 28A.4 confers on citizens the right to vote at local authority elections. The Constitution equally confers the right to stand for election to a local authority. It was submitted that, as local authorities constitute an emanation of the democratic nature of the State, the logic applied by Herbert J. in Redmond v. Minister for the Environment applies equally to the right of citizens to stand for election at local authority level. It follows, it was submitted, that the Oireachtas can only interfere with the entitlement of citizens to vote for members of local authorities and the entitlement of persons to seek election to local authorities for "objective and weighty reasons".
(4) Article 16.1.1
This Article provides as follows:
"Every citizen, without distinction of sex, who has reached the age of twenty-one years, and who is not placed under a disability or incapacity by this Constitution or by law, shall be eligible for membership of Dáil Éireann."
The nub of the plaintiff's argument is that what is stated in express terms in Article 16.1.1 is necessarily implied in the Constitution by virtue of the provisions of Articles 5, 6 and 28A.
Counsel for the plaintiff also submitted that, applying the expressio unius exclusio alterius principle of construction, the Constitution necessarily excludes by implication a prohibition on the dual mandate. Counsel referred to various provisions of the Constitution which prohibit office holders from holding another or other offices. Article 15.14 precludes membership of both Houses of the Oireachtas. The Comptroller and Auditor General (Article 33.3) and judges (Article 35.3) are precluded from membership of either House of the Oireachtas and from holding any other office or position of emolument. The President is precluded from holding any other office or position of emolument (Article 12.6.3). Against the background of those provisions, and against the background that the dual mandate the subject of these proceeding, was well known in 1937 and 1999, it was submitted that it is necessarily implicit that the Constitution permits ex facie the existence of a dual mandate between the Dáil and local authorities.
The Defendant's Submissions
On behalf of the defendant it was submitted that, in considering whether there is a constitutional right to stand for election to a local authority, it is necessary to consider two distinct questions: whether the Constitution as originally enacted secured any such constitutional entitlement; and whether the position changed following the 20th amendment and the insertion of Article 28A.
In outlining the position of local government in the Constitution earlier, I have referred to the only two references to local authorities in the Constitution prior to the introduction of Article 28A. The submission made on behalf of the defendant, that it cannot be credibly contended that prior to the introduction of Article 28A there was a constitutional entitlement to stand for election to local authorities, in my view, cannot be gainsaid.
In relation to Article 28A, counsel for the defendant submitted that, while that provision is undoubtedly significant in realising the desire that the role and function of local government be reflected within the Constitution, it reflects the debate which preceded its promulgation, favouring a preference not to create local authority structures with independent constitutional powers and functions, but instead to subordinate those bodies to the Oireachtas. The range of matters which Article 28A expressly reserves for determination by the Oireachtas was emphasised, as were matters which are not alluded to at all in Article 28A. It was submitted that the absence of any reference to the right of persons to stand as candidates for local elections, or any provision similar to Article 16.1.1, is significant, particularly, given that the right to vote is provided for in Article 28A.4. The omission, it was submitted, strongly suggests that it was never intended that such a right should exist. This argument, in effect is an application of the expressio unius exclusio alterius principle which, counsel for the defendant submitted, has been adopted in a number of decisions in which similar issues of constitutional interpretation have arisen. In Byrne v. Ireland [1972] I.R. 241, it was contended that the Constitution implicitly recognised the existence of a State immunity from suit Budd J. rejected that argument in the following passage (at pp. 298-299):
"It is to be observed that under the terms of Article 13, s. 8, sub-s. 1, it is provided that the President shall not be answerable to any court for the exercise and performance of the powers and functions of his office, or for any act done or purporting to be done by him in the exercise and performance of those powers and functions; that article shows that the framers of the Constitution had before their minds the matter of providing expressly for immunity from suit in at least this instance, but in sharp contrast they did not see fit to provide directly for any such immunity in the case of the State. This would seem to me to carry an implication of some weight that it was not intended to confer any such immunity on the State."
By analogy, it was submitted, given that Article 28A.4 expressly equates the right to vote at local elections with the right to vote at Dáil elections (Article 16.1.2), it is difficult to ignore the omission of an equivalent of 16.1.1 and conclude that a right equivalent to the right conferred by Article 16.1.1 is implicit in Article 28A.
Conclusion
In my view, whether there is a constitutionally protected right of election to membership of a local authority turns on the proper construction of Article 28A, in the context of all of the provisions of the Constitution. An analysis of Article 28A indicates limited constitutional protection for local government and local representative assemblies. The role of local government is recognised, rather than guaranteed. Significantly, insofar as the role of local government is recognised in exercising and performing at local level powers and functions, s. 1 stipulates that such powers and functions are "conferred by law". While the constitutional protection is limited, nonetheless, Article 28A contains the following mandatory provisions which are fundamental in ensuring that the democratic representation of local communities is safeguarded:
(a) that local authorities exist
(b) that they shall be directly elected;
(c) that elections shall be held at five-yearly intervals; and
(d) that, as regards a core element of the electorate, eligibility to vote at such elections shall correspond with eligibility to vote at elections for the Dáil.
That the function of defining the parameters of the role of local government and how it operates in certain respects is left to the Oireachtas is clear on the face of Article 28A. As I have already mentioned, the powers and functions of local authorities are to be determined by the Oireachtas (Article 28A.1). Even in relation to the mandatory provisions a vast area of regulation is left to the Oireachtas. The number, the territorial extent and the demographic features of the local authority areas are matters for the Oireachtas, as are their powers and functions (Article 28A.2). The elections which are to be held at five-yearly intervals are to be regulated by law. The right to vote, even in relation to the core element of the electorate, is to be regulated by law (Article 28A.4). Other matters which Article 28A expressly leaves for regulation by the Oireachtas are the expansion of the core element of the electorate (Article 28A.4) and the filling of casual vacancies in membership of local authorities (Article 28A.5).
It is instructive to compare and contrast Article 28A with Article 16 which in Re The Electoral (Amendment) Bill, 1983 [1984] I.R. 268, O'Higgins C.J. described as "a constitutional code for the holding of an election to Dáil Éireann, subject only to the statutory regulation of such election". Describing the code at p. 275, O'Higgins C.J. said:
"These provisions indicate a total code for the holding of elections to Dáil Éireann, setting out the matters which would appear to be necessary other than minor regulatory provisions. This code provides for the eligibility of candidates; the persons entitled to vote; the limitation of one vote for each voter; the standards for determining the number of members; the obligation to revise constituencies; proportional representation; the single transferable vote and a secret ballot as the method of election; a minimum of three members for each constituency; a limit in time in which general elections must take place after a dissolution; the maximum term of a Dáil; a provision for the timing of polling throughout the country; and an obligation to provide for the automatic election of the Chairman of the Dáil."
In contradistinction to Article 16, Article 28A only provides for two of the foregoing 'essential features of elections' (per O'Higgins C.J.): entitlement to vote, which is partially provided for; and the maximum term of a local authority.
It is also instructive to compare Article 28A and Article 16 by reference to the matters which in each are expressly left to be regulated by law. In relation to Article 16, the paragraph of the judgment of O'Higgins C.J., which succeeds the paragraph which I have just quoted, was in the following terms:
"In contrast with this code of essential features of elections for Dáil Éireann, the matters which are left to be regulated by law would appear to be (a) the disqualification of citizens from voting; (b) the provisions with which citizens must comply in order to have the right to vote; (c) the fixing of the number of members of Dáil Éireann within the ratio laid down by the Constitution; (d) the provision, subject to the minimum of three, of the number of members for each constituency; (e) the fixing of the date of the General Election subject to a restriction as to the maximum period after the dissolution of the Dáil; (f) the period during which the Dáil may continue subject to the constitutional maximum of seven years, and (g) the details of the mandatory re-election of the Chairman of Dáil Éireann."
I have already outlined the matters which have been expressly left to be regulated by law in Article 28A. They relate to the mandatory requirements stipulated in the Article – that local authorities should exist and that they should be directly elected at five-yearly intervals by an electorate which includes a core element which corresponds to the electorate for Dáil elections. A comparison of Article 28A and Article 16 indicates that, in the area of local authority elections, there is a considerable range of matters, both in relation to matters which O'Higgins C.J. described as "essential" in the context of elections to the Dáil and other matters not so described, which are not referred to in Article 28A in respect of which regulation would be required to be put in place.
In my view, it must be assumed that where Article 28A is silent as to the regulation of local government and local authority elections, including the criteria for eligibility for membership of a local authority, such regulation has been left to, and is within the competence of, the Oireachtas. It is neither necessary nor logical that there should be implied in Article 28A a provision which corresponds to Article 16.1.1. The whole thrust of Article 28A is that constitutional regulation of local government is minimal and that regulation is to be by statute. I cannot discern any imperative anywhere in the Constitution which necessitates that regulation of eligibility to stand for election to a local authority should not be regulated by statute. Nor can I discern any basis in logic for the proposition that the framers of Article 28A, and the people enacting it, intended that eligibility to stand for a local election should be regulated in precisely the same manner as eligibility for membership of the Dáil. As constitutionally established, in the case of the Dáil, and, as constitutionally mandated in the case of a local authority, the two representative assemblies are not the same. Indeed, in s. 12 of the Act of 2001, the Oireachtas, as it was entitled to do, in my view, regulated eligibility to stand for a local authority election on a basis which differs from Article 16.1.1 in that it fixed the age threshold for eligibility at eighteen years and did not limit it to citizens.
Although not determinative, it seems to me that the express linkage in Article 28A.4 of the right to vote at local elections to Article 16.1.2, coupled with the absence of any reference in Article 28A to entitlement to stand for election to a local authority and, in particular, the omission to provide for entitlement similar to the entitlement to stand for an election to Dáil Éireann provided in Article 16.1.1, must carry an implication of some weight that it was not intended that such an entitlement should be provided for constitutionally in Article 28A.
On the other hand, in my view, the calling in aid of the principle expressio unius exclusio alterius cannot give rise to an implication that there is enshrined in the Constitution a proscription on the abolition of the dual mandate at issue in these proceedings other than by constitutional amendment. The rationale which underlies the prohibition on simultaneous membership of both Houses of the Oireachtas and the rationale which underlies the prohibition on membership of either House and the holding of any other office in the case of constitutional office holders, being concerned, as they are, with concepts of separation of powers, independence, avoidance of conflicts and such like, are fundamentally different from the rationale underlying s. 13A. Moreover, in the case of the constitutional office holders, the effect of the constitutional prohibition is fundamentally different from the effect of s. 13A: the former are precluded from holding any other office or position. In the circumstances, an argument, by reference to the presence of Article 15.14, Article 33.3, Article 35.3 and Article 12.6.3, in the Constitution, that it must have been the intention of the framers of the Constitution in 1937, or the framers of Article 28A in 1999, that entitlement to dual membership of the Oireachtas and a local authority would be immured against abolition other than by constitutional amendment, on the ground that it was not expressly proscribed, is not tenable.
For the foregoing reasons, I conclude that Article 28A of the Constitution is not open to the construction that there is implicit therein a right to stand for election to a local authority on terms similar to Article 16.1.1. Moreover, I conclude that the right of a citizen to stand for election to a local authority is not constitutionally guaranteed.
Section 13A – interference with the right of election to the Dáil.
It is not in issue that there is a constitutionally guaranteed right to stand for election to the Dáil. What is in issue is whether s. 13A interferes with that right.
The plaintiff's submissions
The plaintiff's contention is that, under Article 16.1.1 he is eligible for membership of the Dáil, and not placed under any disability or incapacity by the Constitution. Nonetheless, he cannot simultaneously be a member of both the Dáil and Mayo County Council. If he wishes to continue as a member of Mayo County Council, he must resign his Dáil seat. Thus it is argued, s. 13A impacts on the right conferred on him by Article 16.1.1 in substance. Reliance on Article 16.7, which provides that, subject to the previous provisions of Article 16, elections for membership of the Dáil shall be regulated in accordance with law, is not an answer: Article 16.7 cannot be used to justify impediments to eligibility of candidates to stand for election (per Herbert J. in Redmond v. Minister for the Environment)
The defendant's submissions
The defendant advanced two distinct lines of argument in answer to the challenge based on Article 16. On one line of argument, counsel for the defendant, took as the starting point the proposition that the plaintiff's argument, based on an infringement of his right under Article 16.1.1, was posited on a mistaken assumption as to the meaning and effect of Article 16. In particular, it was submitted that one of the bases on which Herbert J. decided that the provisions of s. 47 of the Electoral Act, 1992, imposing a deposit requirement on prospective candidates for elections to the Dáil in Redmond v. Minister for the Environment – the interaction between Article 16.1.1 and Article 16.7 – was misinterpreted by the plaintiff or, alternatively, was not correct.
The other line of argument advanced was that, in reality, s. 13 does not constitute any interference with the right to stand for election to the Dáil. Counsel for the defendant recognised that s. 13A gives rise to some indirect effect on the plaintiff as an Oireachtas member, but not such as to offend against Article 16. The indirect effect would arise if the plaintiff wished to contest the local election to be held in June, 2004. In that event, he would be faced with the fact that he is disqualified from being elected or being a member of a local authority, unless he chooses to resign his Dáil seat. This consequence of s. 13A, it was submitted, is not an interference with Dáil membership, but rather it is a prohibition on him simultaneously being a member of the local authority and the Dáil. Counsel for the defendant cited decisions of the Courts of Ontario as supporting this reasoning: Nunziata v. Wong (June 16, 2000 – Divisional Court; September 15, 2000 – Ontario Court of Appeal). It was submitted that, absent a constitutionally guaranteed right to stand for election to a local authority, s. 13A does not violate the plaintiff's right under Article 16.1.1. If it were otherwise, it was submitted, the myriad of statutory provisions which disqualify a person who is a member of the Oireachtas from being a member of a statutory authority or board would, presumably, fall foul of the Constitution.
Conclusion
It is to be assumed that s. 13A was crafted and structured in such a way as to avoid interfering with the entitlement of a citizen to stand for election to the Dáil, which is a constitutionally protected right. There is no doubt that, ex facie, that objective was achieved in that, unlike the provisions of s. 41 of the Electoral Act, 1992, s. 13A is not expressed so as to render a person in the plaintiff's position ineligible for membership of the Dáil. That, of course, is not the end of the matter. The issue for present purposes is whether s. 13A constitutes, in substance, a constraint on the right to stand for election to the Dáil.
In my view, there being no constitutionally protected right to stand for election to a local authority, s. 13A imposes no constraint on the plaintiff's eligibility for membership of the Dáil. It is not an impediment to him remaining in the Dáil until the next general election nor to him standing at the next general election. He does, however, have to choose between his desire to be a member of the Dáil and his desire to be a member of Mayo County Council. However, in that regard he is not in any different position from a member of, say, the Competition Authority or, indeed, a member of any of the other statutory authorities or boards to whom membership of the Houses of the Oireachtas is not open while remaining a member of the authority or board. If such a person is eligible under Article 16.1.1 to stand for the Dáil, stands and is elected to the Dáil, he or she must resign membership of the authority or board before taking his or her seat.
As the plaintiff has failed to establish that s. 13A imposes any constraint on, or is an impediment to the exercise of, the constitutionally guaranteed right of a person to stand for election to the Dáil, his argument based on Article 16.1 fails in limine. In the circumstances it is unnecessary and, in my view, it would be inappropriate to consider the alternative line of argument advanced by the defendant in response to the Article 16 submission.
Section 13A and the Constitutional Guarantee of Equality
The final basis on which the plaintiff challenges the constitutionality of s. 13A is that it infringes the guarantee of equality contained in Article 40.1 of the Constitution, which provides as follows:
"1 All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function."
The Plaintiff's Submissions
As has been stated earlier in outlining the plaintiff's case, the discrimination contended for by the plaintiff as giving rise to an infringement of Article 40.1, as regards eligibility for membership of a local authority, is discrimination as between citizens who are eligible to become members of local authorities, on the one hand, and citizens who would be so eligible but for membership of the Oireachtas, on the other hand. The route by which counsel for the plaintiff asserts that the alleged discrimination constitutes an infringement of Article 40.1 is somewhat circuitous. First, the plaintiff calls in aid the decision of the Supreme Court in McKenna v. An Taoiseach (No. 2) [1995] 2 IR 10, as underscoring the role of Article 40.1 in ensuring that voting rights of one class of citizen are not put above the voting rights of another class of citizen. Secondly, the plaintiff contends that the effect of s. 13A is to preclude voters from choosing, if they so wish, to be represented by the same person both at local and national level. Finally, it is asserted that, in consequence, s. 13A interferes with a related right, which the plaintiff is entitled to assert, to be voted for by persons wishing to have him represent them at both local and national level.
The defendant asserted that there is a fundamental problem with this submission as a constitutional argument. It is an argument available to a prospective voter, rather than to a prospective candidate. In these proceedings no citizen has asserted such a right or the violation of Article 40.1 on account of being deprived of such right. Secondly, it involves the court in second guessing the merits of a policy and the means of its achievement, which the Oireachtas, in the proper exercise of its constitutional function, has decided on.
The plaintiff also cited in support of his challenge based on Article 40.1 the decision of this Court (McKechnie J.) in Kelly v. Minister for the Environment [2002] 4 IR 191, and, in particular, the following passage from the judgment at p. 218:
"[it] . . . now seems clear that the State must in its electoral laws have regard to the concept of equality and must ensure that with any provisions passed into law the guarantee of equality as contained in Article 40.1 of the Constitution will be respected. It cannot, therefore, by any provision of a statute, or by any manner and way in which it might implement such a provision, cause unjustified advantage to accrue to one person, class or classes of the community as against or over and above another person or class of that same community. Equals must be treated equally."
The principles enunciated by McKechnie J. were derived from an analysis of a number of recent cases on referendums and elections: McKenna v. An Taoiseach; Coughlan v. Broadcasting Complaints Commission [2000] 3 IR 1, and Redmond v. Minister for the Environment.
As regards eligibility for membership of the Dáil, the plaintiff's contention is that he is discriminated against because membership of a local authority disqualifies him from such membership, whereas no other occupation or profession, for example, general medical practitioner, solicitor, or fulltime businessman, renders one ineligible for membership.
The Defendant's Submissions
In defending the challenge on the basis of infringement of Article 40.1, counsel for the defendant argued that Article 40.1 is directed in its operation towards prohibition of discrimination based on essential human attributes, in accordance with the principles enunciated by the Supreme Court in Quinn's Supermarket Ltd. v. Attorney General [1972] I.R.1. Section 13A does not arbitrarily or invidiously discriminate, it was submitted: it discriminates on the ground of function – sometimes classed by counsel as social function and sometimes as constitutional function.
The relevance of the "essential human attributes" principle in this context was disputed by counsel for the plaintiff. However, because of the view I have taken of the application of Article 40.1, it is not necessary to address the issue.
Conclusion
I consider that the passage from the judgment of McKechnie J. in Kelly v. Minister for the Environment quoted above to be a correct statement of the law. It is well settled that there must be equality in the democratic process, as the authorities analysed by McKechnie J. clearly illustrate. The question for consideration here is whether s. 13A has caused unjustified advantage to accrue to a third party, or a class of persons to the disadvantage of the plaintiff.
The plaintiff's contention that he has been meted unequal treatment and disadvantage by reason of the fact that voters in County Mayo, who would wish, but will not be able, to vote for him in the upcoming local election, because he intends to retain his Dáil seat, and as a result, will be ineligible to stand for election to the local authority, is unsustainable. The plaintiff is in a similar position to every member of the Oireachtas who would wish to stand for membership of a local authority, but because of s. 13A, must exercise a choice between membership of the Dáil and membership of a local authority. The plaintiff, in having to exercise that choice, may feel that he is disadvantaged by comparison with the situation which prevailed a year ago, before the enactment of s. 13A, and, understandably, may feel aggrieved. But that is not relevant.
In relation to the plaintiff's contention that he has been treated unequally because the generality of members of the Oireachtas are not precluded by law from carrying on an occupation, profession or business in tandem with membership, whereas he is precluded by s. 13A from holding office as a member of a local authority, it does not stand up either. In terms of the value at issue here, that is to say, the opportunity to present oneself to the voters at local level, the plaintiff has not been disadvantaged to any greater extent than any of his colleagues who, prior to the enactment of s. 13A, were members of local authorities. Moreover, in those terms, no advantage has accrued to any of his colleagues, who were not members of a local authority prior to the enactment of s. 13A, whether currently involved in an occupation, profession or business concurrently with membership of the Dáil, or otherwise.
If I am incorrect in my view on the application of Article 40.1, and if s. 13A in some way interferes with the guarantee of equality afforded to the plaintiff by that Article, I am satisfied that such interference is reasonable and proportionate, applying the test of proportionality in accordance with the classic formulation of it by Costello J. as he then was, in Heaney v. Ireland [1994] 3 I.R. 593. That formulation is as follows:
"The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally-protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:
(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational consideration;
(b) impair the right as little as possible; and
be such that their effects on rights are proportional to the objective".
On the evidence, I find that the objective of the Oireachtas in abolishing the dual mandate was to strengthen governance at both national and local level in Ireland, in the manner represented by the defendant in defending these proceedings. If the plaintiff's constitutional right under Article 40.1 has been interfered with, I am satisfied that the stated objective is sufficiently important to justify such interference. Further, I am satisfied that the objective, relating as it does to enhancing the democratic process, is of pressing and substantial importance in a free and democratic society. As to the means chosen to achieve the objective, the enactment of s. 13A is one of a number of measures introduced to fulfil that objective: other means include the insertion of Article 28A in the Constitution and the enactment of the Act of 2001. I am satisfied:
(a) that the provisions of s. 13A are rationally connected to the objective, in the manner outlined in the summary of Professor Laver's evidence of arguments in favour of abolition set out above; and
(b) that s. 13A impairs the plaintiff's right to equality as little as possible, although, in truth, in terms of the value at issue here, I cannot see that there is any impairment of the plaintiff's right consequential on the enactment of s. 13A.
I am also satisfied that such, if any, impairment that there is, is proportional to the stated objective.
Proportionality
Counsel for the plaintiff launched a robust attack on the justification put forward by the defendant for the enactment of s. 13A, characterising the abolition of the dual mandate as reflecting a form of intellectual conceit and elitist attitude to politics. He contended that it was an attempt to effect a piece of social engineering in the political sphere. Having found that there is no constitutionally protected right to stand for membership of a local authority and that s. 13A does not, in substance, interfere with eligibility to stand for election to Dáil Éireann, the question of proportionality does not arise beyond the extent to which I have dealt with it in relation to Article 40.1.
Decision
The plaintiff's claim is dismissed.