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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Shiels -v- Donegal County Council & Anor [2012] IEHC 417 (07 November 2012)
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Cite as: [2012] IEHC 417
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Judgment Title: Shiels -v- Donegal County Council & Anor Neutral Citation: 2012 IEHC 417 High Court Record Number: 2011 541 JR Date of Delivery: 07/11/2012 Court: High Court Composition of Court: Judgment by: Dunne J. Status of Judgment: Approved |
Neutral Citation 2012 [IEHC] 417 THE HIGH COURT JUDICIAL REVIEW [2011 No. 541 J.R.] BETWEEN DESMOND SHIELS APPLICANT AND
DONEGAL COUNTY COUNCIL RESPONDENT AND
MICHAEL McBRIDE NOTICE PARTY JUDGMENT of Ms. Justice Dunne delivered the 7th day of November 2012 Background
(a) Where the non party candidate who caused the vacancy has at any time prior to the occurrence of such vacancy lodged with the meetings administrator a list of his preferred nominees (not exceeding three in number) to take his place in the event of a casual vacancy occurring in its membership, the Council will consider (in the order they were nominated) the co-option of one of those persons, subject to compliance with subs. (5) of the said section or (b) In the event that if for whatever reason the Council do not co-opt a person in accordance with subpara. (a) above, a non party candidate will be co-opted from the same electoral area (as the member who caused the casual vacancy) and while subject to this the Council will have full discretion to decide such person, it is intended that it will be someone who so far as the Council can ascertain represents the same broad constituency as elected the member causing the vacancy." The Affidavits Mr. Shiels sought clarification from the respondent on the procedure adopted at the meeting of the 30th May 2011 in a faxed letter of the 7th June, 2011. He was not satisfied with the response and following correspondence between Mr. Shiels and the Council, he commenced these proceedings. In a further affidavit sworn on the 4th July, 2011, Mr. Shiels exhibited correspondence with, amongst others, the chairperson of Donegal County Council and the County Manager. He referred to a previous meeting of Donegal County Council and to the co-option of a number of individuals arising from the election of three Councillors to the Dáil in the general election as a result of which they became disqualified. He contrasted the manner of co-option on that occasion with the method adopted by Senator Harte in respect of his disqualification. It appears that Mr. Thomas Pringle, a successful non party candidate in the general election had, prior to being disqualified, submitted a list of non party nominees as provided for in S.O. 84(a). No such list was submitted by Senator Harte. There is a suggestion in that affidavit that the correct procedure was not followed at the meeting of the 30th May, 2011, or at least was procedurally less than perfect as Mr. Eunan Sweeney, the meetings administrator of Donegal County Council was not present and "therefore could not assist the chair in relation to correct procedure". It is necessary to emphasise that judicial review was not sought nor was it granted on the basis that the meeting at which Councillor Harte was co-opted was in any way procedurally flawed. I will refer to this point later. A statement of opposition was duly filed and served in which reference was made to the relevant statutory provisions and to the Standing Orders of Donegal County Council. It was then pleaded that the requirements of the 2001 Act and Standing Orders were fulfilled and that the respondent acted according to law in connection with the filling of the casual vacancy in its membership. An issue was also raised as to the reliance on media reports referred to in the affidavits of Mr. Shiels. It was further pleaded that Councillor McBride was proposed and elected as a non party candidate and remains an independent member of the County Council. A number of other points were raised as to why the applicant was not entitled to the reliefs sought and where necessary, I shall refer to those later in the course of this judgment. A verifying affidavit was sworn by Liam Ward, the director of Corporate and Housing Services of Donegal County Council, on its behalf. He noted that the meetings administrator of the County Council, Mr. Sweeney, wrote to each elected member of the respondent in early May to inform them that a casual vacancy had arisen and advising that the provisions of s. 19 of the Local Government Act 2001, as amended and S. O. 84, applied to the filling of casual vacancies and enclosed a copy of same. In a further letter to each elected member, he drew attention to the fact that Mr. Harte had been elected as a non party candidate and that he had not lodged a list of his preferred nominees so that S. O. 84(b) applied to the filling of the casual vacancy. Such a letter was also written to Mr. Harte. He then referred to a meeting that Mr. Sweeney had with Mr. Harte on the 25th May, 2011, at the respondent's offices in Lifford. He exhibited a memorandum in respect of that meeting. He stated that it appeared therefrom that Senator Harte was noted as having made assurances that Labour had no role to play in the matter. It is worth quoting from that memorandum:-
Mr. Ward proceeded to outline the manner in which Councillor McBride was co-opted and he took issue with the suggestion that at the time of the co-option of Councillor McBride he was a "Labour Party candidate/nominee" and, in particular, with the contention of Mr. Shiels that the fact that the notice party was proposed and seconded for co-option by members of the Labour Party meant that Mr. McBride was a Labour Party candidate for co-option and therefore not a non party candidate. It would be helpful to refer to para. 23 of his affidavit in full:-
Councillor McBride, the notice party, also swore an affidavit on the 5th October, 2011. He described his interest and background in politics and his previous membership of Independent Fianna Fail. He ran unsuccessfully as a candidate in a number of local elections. He decided to bow out of politics before the general election of2011. Subsequently, he got a phone call on the 23rd May, 2011, from Senator Harte asking if he was interested in Senator Harte's seat in the County Council. Councillor McBride indicated that he wished to contact those people who had supported him when he ran for election previously. He added:-
He described a meeting he had with Mr. Ward on the morning of the 30th May, 2011, drawing attention to the legislation and the requirements of the Standing Orders. It was explained that only a non party candidate could be proposed and that the Labour Party had no role in selecting the proposed candidate. He acknowledged that up to the point when he met with Mr. Ward that morning, it was an assumption on his part that as Senator Harte had been a Labour party Councillor, that in replacing him he would have to be nominated by and become a Labour Party Councillor. It was only as a result of that meeting that he became aware that the reverse was the position and that to be lawfully co-opted he had to be nominated as a non party candidate. He referred to further comments that had been attributed to him in the Donegal Daily website and stated that he had no recollection of making those comments. Finally he stated that he was not and never had been a Labour Party member or candidate for election or co-option to any position. A number of other affidavits were sworn by Mr. Ward, Councillor McBride and Mr. Shiels. The third affidavit of Mr. Shiels referred, inter alia, to a number of radio interviews and to newspaper articles containing quotations from Councillor McBride. Having set out the contents of those quotations, Mr. Shiels then referred to the meeting involving Mr. Ward, Senator Harte and Councillor McBride on the morning of the Council meeting and went on to state:-
Councillor McBride repeated that events before the Council on the 30th May did not follow the course he had expected as he had expected to be nominated by the Labour Party and he found out on the morning that he had to be nominated as a non party or independent member of the Council and that he was so nominated. The fourth affidavit of Mr. Shiels referred to further newspapers articles including an article written by Ms. Farrar in the Donegal Democrat which was based on an interview she had with Councillor McBride immediately after his co-option. Based on his observations in relation to the those articles, Mr. Shiels complained that the process which led to the co-option of Councillor McBride was not an open transparent process and that a valid co-option of a bona fide non party candidate which ought to have occurred did not in fact occur. In support of this contention, Mr. Shiels placed reliance squarely on the media interviews given before and after the co option by Senator Harte and Councillor McBride. There was also an affidavit of Carolyn Farrar, sworn on the 15th March 2012, on behalf of the applicant in relation to an article written by her and published in the Donegal Democrat confirming the accuracy of the article based on interview with Councillor McBride. The contents of that affidavit have not been contradicted. In his fifth affidavit, Mr. Shiels referred mainly to correspondence between himself, the Labour Party, Mr. Eamon Gilmore and the solicitors for the Labour Party and Mr. Gilmore, O'Mara, Geraghty, McCourt. Mr. Shiels had requested that an affidavit be sworn by Mr. Gilmore in relation to this matter. In their letter of the 16th November, 2011, on behalf of Mr. Gilmore, O'Mara, Geraghty, McCourt stated: "Our client does not propose to file an affidavit as sought by you. However, we are instructed to inform you that Councillor McBride is not and never has been a member of the Labour Party". The sixth affidavit of Mr. Shiels referred to further correspondence between Mr. Shiels and the Labour Party and the solicitors acting on their behalf. He also referred to correspondence with Donegal County Council. A number of points were raised by Mr. Shiels in relation to the manner in which the co-option was effected and to that extent it seems to me that this is a complaint about the procedures followed at the meeting on the 30th May, 2011. Before dealing with the submissions made on behalf of the respective parties and bearing in mind that there is a dispute between the parties as to the use of media reports/interviews in the course of the hearing, I would make the observation that anyone reading a number of the comments made to the media prior to the co-option of Councillor McBride would be forgiven for thinking that the successor to Senator Harte was going to be a member of the Labour Party. For example, the interview on Highland Radio with Senator Harte on the 10th May, 2011, and the comments of Councillor McBride as reported in the Donegal Daily website on the 27th of May, 2011, could lead to such a view. It is also clear from media reports subsequent to the co-option that there was disappointment among members of the Labour Party at the appointment of someone who was not a Labour Party member. (See the Donegal Daily of the 3rd June, 2011). In addition, Councillor McBride following his co-option spoke of increasing Labour Party representation in the Council (See Tirconaill Tribune of the 2nd June, 2011). Thus, it seems to me that there was scope for confusion before and, indeed, after the co-option of Councillor McBride as to what his precise status was, namely whether he was co-opted as a member of the Labour Party or as a non party candidate. I observe, however, that subsequent to his co option, as pointed out by Mr. Ward in his first affidavit, Councillor McBride provided the County Council with "his political designation, contact details and a photograph to be placed on the respondent's website". This showed Councillor McBride's designation as "independent". Taking all of these matters into account, it would not be surprising that the casual observer of politics in Donegal at the time of Councillor McBride's co-option could have been confused as to his precise status. Submissions On considering the provisions of s. 19 of the Local Government Act 2001, and S. O. 84, and bearing in mind that Senator Harte had not provided a list of preferred nominees in accordance with S. O. 84(a), it is clear that S. O. 84(b) was applicable to the filling of the casual vacancy caused by the disqualification of Senator Harte on his becoming a member of Seanad Eireann thus requiring that only a non party candidate could be co-opted. The definition of a non party candidate is of assistance and I was referred to Local Government Regulations 1995, (SI 297/1995) and to the provisions of s. 16(6) of the Electoral (Amendment) Act 2009, which are in similar terms. Section 16(6) provides:-
The applicant's submissions ranged over a number of issues including the requirements of the Local Government Act 2001 in relation to giving a public notice of a County Council meeting including the agenda of the meeting. There was a complaint as to the alleged failure of the County Secretary, Mr. Eunan Sweeney, to notify Council members of the legislation, standing orders and procedure for nomination and filling of a non-party vacancy. An issue was raised also as to the notice of meeting and agenda dated the 24th May, 2011 as issued by Mr. Sweeney to Council members. Other matters referred to included the failure to mention to councillors the right to nominate non-party candidates in a letter dated the 24th May, 2011 and the failure to amend the agenda in advance of the meeting; other complaints in relation to the conduct of the meeting and events immediately before and after the meeting were also raised. Leave to apply for judicial review was granted on the basis set out in the statement of grounds to the effect that the notice party, Councillor McBride, was ineligible as he did not fit the description of a non-party candidate. I do not propose to consider matters and issues in respect of which the applicant was not given leave to apply for judicial review. The applicant could have challenged the co-option of Councillor McBride on the basis of alleged procedural flaws in the process leading to the co-option had that been appropriate but chose not to do so. In circumstances where leave was not granted in respect of any issue other than that to which I have referred, I do not think it is necessary or appropriate to consider those matters and therefore I do not propose to address those issues any further. In the course of the submissions counsel on behalf of Mr. Shiels referred to the role of Standing Order 84(b) and to a decision in the case of O'Doherty v. The Attorney General and Limerick County Council and Fianna Fail [2010] 3 IR 482 in which Birmingham J. stated (at p. 497):
He continued (at p. 498) at follows: "It does seem to me that maintaining the balance decided upon by the voters in a multi-seat constituency is a legitimate objective and one which the Oireachtas was entitled to take into account. Of course, the Oireachtas could have decided otherwise and indeed, even if setting its face against by-elections might have approached the matter somewhat differently. There might, for example, be thought to be merit in a provision similar to that which applies in the case of election to the European Parliament requiring candidates contesting the general election to identify substitutes who would then take their place if for any reason they did not see out their term. This might be seen as particularly advantageous in the case of non-party candidates, where it may not be clear who has the greatest claim on a seat that falls vacant."
It was maintained on behalf of Mr. Shiels that Councillor McBride was, in effect, a Labour party candidate. The fact that he had been nominated by a member of the Labour Party was relied on in this regard. Mr. Murray, S.C., on behalf of the respondent made a number of points by way of response to the argument on behalf of Mr. Sheils. He noted that the main contention of the applicant is that Councillor McBride at the time he was co-opted was not a non-party candidate and that consequently his co-option was not a lawful co-option. That contention is refuted by the respondent. It was pointed out that the arguments of Mr. Shiels assume that Councillor McBride was not a non-party candidate as he was a Labour Party candidate/nominee. Having regard to the meaning of a non-party candidate relied on by Mr. Shiels, it was pointed out that for him to succeed in his application it is necessary for the Court to come to the conclusion that Councillor McBride was in fact a Labour Party candidate. It was argued that for Councillor McBride to be a Labour Party candidate there was a necessary implication that he had to be a Labour Party member. Mr. Murray then proceeded to examine the evidence before the Court on that issue. Mr. Murray referred to the extensive media reports, statements and commentaries relied on by Mr. Shiels and exhibited by him in his affidavits. I have already referred to some of those in some detail together with those exhibited by Councillor McBride. I have also commented on the impression created by those reports. It is Mr. Murray's contention that none of the media reports provide evidence that Councillor McBride was at any stage a candidate of the Labour Party. The averments contained in the affidavits of Councillor McBride were contrasted with the position contended for by Mr. Shiels on foot of the media reports. Councillor McBride has expressly averred that when approached by Senator Harte in relation to his possible co-option to the Council on the 23rd May, 2011, it was never mentioned that he would have to join the Labour Party at that time or at any time in the future. On the 27th May, 2011 in the course of their discussions there was no requirement or arrangement to the effect that Councillor McBride would join the Labour Party when co-opted or that he would later act as or become a Labour Councillor. Councillor McBride also referred to the meeting that took place on the morning of the 30th May, 2011 with Mr. Ward. It was made clear to Councillor McBride at that stage that only a non-party candidate could be proposed for the co option and that the Labour Party had no role in electing the proposed candidate. Councillor McBride frankly admitted that it was his assumption up to that point that he would have to be nominated by and become a Labour Party candidate. He went on to aver that he was co-opted as and remains an independent member of the respondent and he added that he was not now, nor had he ever been, a Labour Party member or candidate for election or co-option to any position. Mr. Ward in his affidavit pointed out that subsequent to his co-option the notice party, Councillor McBride provided the County Council with details of his political designation, contact details and a photograph to be placed on the respondent's website and in that website he was designated as "independent". Further, in the correspondence between the applicant and the Labour Party, Mr. Eamon Gilmore, the leader of the Labour Party and O'Mara, Geraghty and McCourt, the solicitors for the Labour Party and Mr. Gilmore, a letter was exhibited confirming that Councillor McBride was not and never was a member of the Labour Party. Mr. Murray in the course of his submissions also went on to deal with a number of the points raised by Mr. Shiels in the course of the submissions herein which were not the subject of leave to apply for judicial review. I do not propose to refer to his submissions in that regard for the same reason I have outlined above in relation to the submissions made by Mr. Forde on behalf of the applicant. Decision There is no doubt that the events with which these proceedings are concerned occurred over a relatively short time frame. Councillor McBride was first approached by Senator Harte on the 23rd May, 2011. His co-option took place on the 30th May, 2011. It was not until the morning of the meeting at which he was co-opted that he learned that in order to be co-opted he had to be a non-party candidate. He, not surprisingly, made the assumption that in order to be co-opted he had to be a member of the Labour Party. Some of the comments made by him can be understood in that context. It is probably fair to say that members of the Labour Party in Donegal who were supporters of Senator Harte were equally unaware of the position in relation to the provisions of Standing Order 84(b). The point was made by Mr. Murray in the course of his submissions that in order to be a candidate of a political party, there had to be a relationship between the party and the candidate, usually membership. Being a candidate of a political party necessarily implies a decision by the Party that an individual is to be the Party's candidate .It is not something that occurs unilaterally. Further, it implies some form of public act or statement by which the person is held out as a party candidate. It is hard to see how someone could be a candidate of a party without knowing it or without the Party knowing it. There is some force in this argument. I have referred a number of times to the impression created in various media comments around the time of the co-option. Those comments demonstrate the confusion in the mind of Councillor McBride as to the basis on which he would be co- opted, which he has admitted, but equally demonstrate that he was not alone in that confusion. Much of the media speculation is similarly confused as were some local members of the Labour Party. However, I cannot decide this case on the basis of an impression or on newspaper speculation or comment. I have to decide the issue on the basis of the evidence before me. In the light of that evidence and the clear and unambiguous averments of Councillor McBride on affidavit, I am satisfied that it is impossible to reach the conclusion that Councillor McBride was, in fact, either a member or candidate of the Labour Party at the time of his co-option. That being the case, it follows that the applicant cannot succeed in his application. In the circumstances, I am refusing the relief sought herein.
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