High Court of Ireland Decisions

 


HC 206/04

THE HIGH COURT

2004 NO. 3417P

BETWEEN DENIS RIORDAN

PLAINTIFF

AND MINISTER FOR THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT, THE ATTORNEY GENERAL AND IRELAND

DEFENDANTS

Judgment of Finnegan P. delivered on the 26^th day of May 2004

This is an application for injunctive relief and while several reliefs are sought in the Notice of Motion only two of the same were pursued at the hearing and these are as follows –

(1) An Injunction or Order requiring the Minister for the Environment, Heritage and Local Government to insert, or order the Returning Officer for the European Parliament Election Constituency South to insert, the Plaintiff's name on the ballot paper for the Constituency South for the European Parliament Elections due to take place on the 11^th June 2004.

(2) An Order to restrain the Minister for the Environment, Heritage and Local Government from holding elections for membership of local authorities until such time as legislation has been enacted by the Oireachtas to require the conduct of the elections as required by Article 28A.3 of the Constitution.

Relevant on this application are the following dates. The date for the holding of European Parliament elections and local elections was announced on the 2^nd December 2003 the date being the 11^th June 2004. The Plaintiff issued a Plenary Summons on the 19^th March 2004 seeking a number of reliefs but those relevant to the present application are as follows –

(1) A declaration that section 12(1A) of the European Parliament Elections Act 1997 as inserted by the Electoral (Amendment) Act 2002 section 2 is repugnant to the Constitution.

Section 12(1A) provides as follows –

"In the case of a candidate whose candidature is not authenticated by a certificate of political affiliation under Rule 5(3) of the Second Schedule, the candidate's nomination shall, before delivery of his or her nomination paper to the Returning Officer in accordance with Rule 11 of that Schedule, be assented to by sixty persons (excluding the candidate and any proposer) who are registered as European Electors in the constituency.

(2) Section 27(2) of the Local Government Act 2001 is repugnant to the Constitution.

The Local Government Act 2001 section 27 provides as follows –

"27(1)(a) Local Elections shall be held in accordance with Regulations made by the Minister under this section.

(2) Without prejudice to the generality of sub-section (1) regulations under this section may in particular include provision for all or any of the following matters in relation to local elections:

(a) Nominations."

The Plaintiff delivered his Statement of Claim on the 20^th April 2004. The Order fixing the time and date for the European Parliament Election was signed by the Minister on the 7^th May 2004 and the Order for the Local Elections on the 13^th May 2004. On the 13^th May 2004 he applied to the Court (McKechnie J.) for an Order abridging the time for the bringing of a Notice of Motion which relief was refused. The Notice of Motion was issued on the 18^th May 2004 returnable for the 24^th May 2004 and was heard on the 25^th May 2004.

In respect of the first relief claimed on this Notice of Motion the Plaintiff relies on Article 40.1 of the Constitution which provides:-

"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 the differences of capacity physical and moral and of social function."

The Plaintiff wished to be a candidate for the European Parliament Election. For a number of reasons he was unable to satisfy the requirement of section 12(1A). This was due firstly to time constraints. The effective period available to him to obtain 60 persons was seven days. Work commitments reduced this. In any event he did not know 60 persons and was reluctant to approach persons he did not know. Further the requirement in section 12(1A) discriminated against him as against candidates whose candidature is authenticated by a certificate of political affiliation under Rule 5(3) of the Second Schedule to the Act and who do not require assentors.

There are no authorities directly in point on the issue raised. However the Plaintiff did refer me to a passage in the Judgment of Herbert J. in Thomas Redmond v The Minister for the Environment, Ireland and the Attorney General Unreported 31^st July 2001. While that case dealt with the requirement of a deposit at page 36 of his Judgment Herbert J. said –

"In my judgment the absence of some reasonable alternative route to the ballot paper, such as the nomination and signature system, to which reference has already been made, the fact that the deposit system on the evidence, has the effect, even if unsought, of excluding from the ballot a considerable percentage of the adult citizens of this State who would otherwise be eligible to stand for membership of Dail Eireann and the European Parliament renders that system unjust, unreasonable and arbitrary."

The passage is obiter.

Having carefully considered the matter I am satisfied that the Plaintiff on this issue raises a fair question to be tried. I am aware of the decision of Kearns J. in King and Others v The Minister for the Environment, Ireland and the Attorney General (19^th December 2003) which weighs heavily against the Plaintiff but which is under appeal to the Supreme Court.

The Plaintiff's argument in regard to the second relief claimed is as follows –

The Constitution Article 28A3 provides as follows –

"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."

"In accordance with law" he argues means in accordance with primary legislation. The provisions of section 27 which permit elections to be held in accordance with regulations made by the Minister are accordingly unconstitutional. He further calls in aid the provisions of the Constitution Article 15.2.1 and 2 which provide as follows:-

"2.1 The sole and exclusive power of making laws in the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.

Provision may however be made by law for the creation or recognition of subordinate legislatures and for the powers and functions of these legislatures.

While the Plaintiff did not rely on any decisions of the Courts of this jurisdiction there are a number of cases dealing with the provisions of Article 15.2.2 namely NUR v Sullivan 1947 I.R. 77 and Cityview Press v AnCO Supreme Court Unreported 20^th December 1978. In relation to delegation to a Minister see de Burca v Attorney General 1976 I.R. 38 at 52 –

"Mr. Barrington's fourth submission dealt with the provisions of section 2 of the Act of 1927 which empowered the Minister for Justice, without restriction, to prescribe and vary from time to time the minimum rate and qualifications for jurors in each jury district, and to prescribe different rateable values in respect of different classes of land. Counsel contended that these provisions were inconsistent with the Constitution on two grounds. First, because they delegate to the Minister the legislative power which is vested solely and exclusively in the Oireachtas under Article 15.2 of the Constitution. I do not consider that the Minister, in exercising the powers given to him by this section can be said to be exercising in any sense the legislative powers of the Oireachtas. He is simply implementing the policy and provisions of the Act of 1927 as laid down by the Legislature."

Notwithstanding this it seems to me that an issue arises as to whether the Regulations in this case can be said to be simply implementing the policy and provisions of the Act in question. Again I am satisfied that the Plaintiff raises a fair issue to be tried.

It therefore falls for me to consider whether or not the injunctive relief sought should be granted. In this regard it seems to me that the following fall for consideration:-

(1) The balance of convenience.

(2) Delay on the part of the Plaintiff.

(3) The adequacy of an undertaking as to damages.

With regard to the balance of convenience the Defendant relies upon the very considerable inconvenience and disturbance to the election process in the European Parliament Election and the Local Elections which would result from the granting of the relief sought. In relation to the European Parliament Election the Order of the Minister fixing in law the time and date of the election was signed on the 7^th day of May 2004. Nominations for all constituencies closed at 12 noon on Monday the 17^th May 2004. The Returning Officer adjudicated on the nominations in the South Constituency and published the list of nominated candidates on Tuesday the 18^th May 2004. Notices have been published in the National newspapers and elsewhere detailing the nominated candidates and their designated replacements. The process for the production of ballot papers has been put in train. With regard to the Local Elections the Order of the Minister was signed on the 13^th May 2004. Nominations closed at 12 noon on Saturday the 22^nd May 2004. Steps have been taken to publicise the list of nominated candidates. Production of ballot papers is in train. These are all matters which I must take into account. Considerable expense must have been incurred particularly in relation to the printing of ballot papers.

In addition there is inconvenience and expense incurred by other candidates. They will have incurred expense in the preparation of election literature. Their election campaigns are no doubt by now well underway. The delay which I mention hereafter has contributed to this and is a factor which I also take into account: Maythorn v Palmer (1864) 11 L.T. 261.

With regard to the issue of delay the Plaintiff submits that he could not have brought this application until after the 7^th May 2004 in relation to the European Parliament Election and the 13^th May in relation to the Local Election. I am not satisfied that this is indeed the case. The dates for the Elections were announced on the 2^nd December 2003 and I can see no reason why proceedings should not have been instituted immediately following that time. The Plenary Summons was issued on the 19^th March 2004. This delay militates against granting the reliefs sought. The Plaintiff argued that he could not have issued a motion for injunctive relief prior to the Minister signing the Orders of the 7^th May 2004 and 13^th May 2004. I do not accept this. There was an obligation on the Plaintiff to issue proceedings and the motion seeking interlocutory relief promptly after the announcement of the date for the elections. Had the proceedings been instituted promptly and an application been made to me at any time thereafter I would have ensured that any interlocutory application would be dealt with promptly and that the matter received an appropriately early trial date. Immediately preceding the most recent Dail Elections proceedings were instituted by a number of persons and in each case hearing dates were allocated within a matter of days and in advance of polling day and the same facility having regard to the importance of the electoral process would have been afforded to the parties here. No such application was made. Had such application been made the balance of convenience might well have been found to lie elsewhere. As matters stand the balance of convenience lies heavily in favour of refusing the application.

Finally I take into account the following circumstance. The Plaintiff frankly admits that an undertaking as to damages would be worthless in that he has not the means to satisfy the same if called upon to do so. While not determinative of the application it is a factor which I must take into account. I take into account the expense which has been incurred by the Defendants and I also take into account the expense which has been incurred by other candidates and indeed their efforts in their election campaigns. They will not be recompensed for these should the Plaintiff ultimately fail in these proceedings.

Having regard to the three matters which I have taken into account that is the balance of convenience, the factor of delay and the inadequacy of any undertaking as to damages I am satisfied that the Plaintiff must be refused the reliefs which he seeks.