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Constituencies Constitutional Challenge – Legal Submissions

THE HIGH COURT
RECORD NO. 2819P/2007

Between

CATHERINE MURPHY and
FINIAN McGRATH

Plaintiffs

And

 

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

Defendants

    OUTLINE LEGAL SUBMISSIONS
    ON BEHALF OF THE PLAINTIFFS

    Preliminary

    1. Article 16.2. of the Constitution provides:
    1° Dáil Éireann shall be composed of members who represent constituencies determined by law.
    2° The number of members shall from time to time be fixed by law, but the total number of members of Dáil Éireann shall not be fixed at less than one member for each thirty thousand of the population, or at more than one member for each twenty thousand of the population.
    3° The ratio between the number of members to be elected at any time for each constituency and the population of each constituency, as ascertained at the last preceding census, shall, so far as it is practicable, be the same throughout the country.
    4° The Oireachtas shall revise the constituencies at least once in every twelve years, with due regard to changes in distribution of the population, but any alterations in the constituencies shall not take effect during the life of Dáil Éireann sitting when such revision is made.
    5° The members shall be elected on the system of proportional representation by means of the single transferable vote.
    2. The fundamental issue in the present case is whether the Electoral (Amendment) Act 2005 (“the 2005 Actâ€?) complies with these constitutional obligations. Subject to the possible question of the finality of the census figures compiled by the Central Statistics Office, there is no doubt but that the requirement of Article 16.2.3 in respect of the equality of ratio between the constituencies being “so far as it is practicable….the same throughout the countryâ€? has not been complied with. In this regard it suffices to note the population of Dublin West is actually greater than that of Cork North West, but it has one less member: Dublin West elects three deputies, whereas Cork North West has four. The divergence between the constituencies in some instances is as great 30%. (more…)

Constituencies Constitutional Challenge:REPLY TO DEFENCE

THE HIGH COURT
RECORD NO. 2819P/2007

Between

CATHERINE MURPHY and
FINIAN McGRATH

Plaintiffs

And

 

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

Defendants

    REPLY TO DEFENCE

    DELIVERED THIS 1st DAY OF MAY 2007 BY McGARR SOLICITORS, 12 CITY GATE, LOWER BRIDGE STREET, DUBLIN 8.

    1. The Plaintiffs join issue with the Defence of the Defendants save in so far as the same contains admissions.

    2. By way of special plea, it is denied that the first named Defendant does not have responsibility for the revision of constituencies or that he is entitled to absolve himself from responsibility. The first named Defendant is the Minister designated by the Electoral Acts as the Minister with responsibility in the area of the electoral system and is the Minister with responsibility for ensuring that whatever steps are necessary (including the bring of amending legislation before the Oireachtas) for compliance with Article 16 of Bunreacht na hÉireann are taken.

    3. Furthermore by way of special plea it is denied that the Defendants are entitled to rely on the procedures laid down in the Electoral Act, 1997 or any other Act as a justification for failure to comply with a constitutional obligation, or as a justification for failing to ensure the revision of the electoral constituencies before the dissolution of the 29th Dáil.

    4. By way of special plea it is denied that it was not incumbent upon the Defendants to take cognisance of the findings of the Census 2006 Preliminary Report for the purposes of Article 16.2.2 or to procure the revision of the constituencies. Without prejudice to the foregoing, it was at the very least incumbent upon the Defendants upon the Publication of the Preliminary Report to take whatever steps were required to review the constituencies and establish what revisions were necessary, which said revisions could have been enacted by the Oireachtas upon the publication of the final Report.

    5. By way of special plea, it is denied that the results set out in the Census 2006 Preliminary Report are inaccurate or that the publication of the same did not require or mandate the Defendants to take action. On the contrary the difference between the results of Census 2006 Preliminary Report and the Final Results are and are known from previous Census to be trivial. It is specifically pleaded that the Oireachtas in 1947 revised constituencies on the basis of a Preliminary Report of census results.

    6. By way of special plea it is denied that there is insufficient information available for the purposes of revising the constituencies so as to comply Article 16 of Bunreacht na hÉireann whether in the manner as alleged or at all.

    7. It is denied that the figures published by the Central Statistics Office on the 29th March 2007 were not the final census figures or that it is not possible or practicable to revise constituencies without further information or data.

    8. By way of reply to paragraph 15 of the Defence it is denied that the process for the revision of constituencies provided for in Part 2 of the Electoral Act, 1997 is a regulation of the manner in which constituencies are revised which is comprehensive, fair, reasonable and proportionate having regard to the constitutional requirements or that it can take precedence over the requirements of the Constitution.

    9. By way of reply to paragraph 16 of the Defence, it is denied that the Plaintiffs failed to act promptly or that any such failure (which is denied) is a bar to any of the reliefs claimed by way of plenary proceedings.

    10. It is denied that it was not practicable to revise the constituencies whether in the manner as alleged or at all.

    11. It is denied that the reliefs claimed are or will be moot whether in the manner as alleged or at all

    12. Save as is expressly admitted herein each and every plea as set out in the Defence is denied as if set forth herein and traversed seriatim.

    Mark J Dunne
    Frank Callanan SC
    Gerard Hogan SC

Privacy and the Hustings

Do election candidates have a right to privacy?

In Ireland, the right to privacy is one of the unenumerated personal rights entitled to constitutional protection.

In putting themselves forward for election it is clear that they can be taken to have, to put it mildly, waived their right to privacy. This has been expressly recognised as possible in McGrory v ESB [2003] IESC 45. There, the plaintiff had been injured in an accident and refused to be medically examined by the defendant’s medical advisor.

The Supreme Court ruled this was not permissible where the plaintiff had availed of recourse to the courts for relief for the injury. The price of the recourse was the loss of some privacy. (Personal injury trials are heard in public).

The European Court of Human Rights, although it has recognised that a public figure, particularly a politician, has a lower right to privacy than other persons, has adjudged that a public figure does not lose the right to privacy entirely.

In Von Hannover v Germany EctHR (24th June 2004) the court found the applicant’s right to privacy had been breached because the published material related exclusively to the applicant’s private life.

Balance in the Criminal Law?

The plans of the Minister for Justice, Equality and Law Reform had predecessors; the odd thing is they were not generated here, but in the UK.

Now the Independent has a report on the consequences.

What Irish newspaper will report our consequences?

Speaking Truth to Power?

It is generally felt in the chattering classes (politicians and their friends and allies) that the delay to the formal start of the general election campaign was undesirable.

They might be right.

In defamation law, election campaigns represent the paradigm case for informing the public about matters they should know about; like the character of the opposition parties or candidates.

Outside the campaign, issues of malice and relevance arise; not so much in the campaign.

In addition, opponents of a candidate have a privilege for statements about the candidate for which, made bona fide, they are not answerable in the absence of malice. A privilege is a stronger defence than the defence of fair comment.

With the commencement of the campaign they can look to Crawford v Vance (1908) 2 IR 521 and read the remarks of Holmes LJ where he said “[in election campaigns]… acts are often described as bribery which are not only not indictable, but comparatively harmlessâ€?.

RTE recently featured a photograph of the Fianna Fail party tent at the Galway races as the icon of the alleged corruption and favouritism of and by that party. [Such few builders/developers, as are known to the writer, do not consider themselves as “privileged” by the tent opportunity].

The journalists may have been running ahead of themselves.

Accusations of that kind should have awaited the commencement of the campaign (unless the journalist is fortunate to have the incriminating evidence in his/her possession).

Whether privilege arises prior to an election campaign is, legally, an unsettled question.

NOTE; Fianna Fail, although an organisation, could [unwisely] sue for defamation; hence the use of “allegedâ€?, in association with the remarks above about the Fianna Fail tent.

NOTE: Party political spin doctors may note the excellent defence presented by Holmes LJ; appropriately construed, he could be read as condoning bribery and corruption when occurring in political life, as opposed to commercial life, say.

The Campaign

The calling of the General Election brings me to reach to my bookshelf for “Strategy in a Nutshellâ€? by Captain F. F. Boyd [1915] Gale & Polden Ltd.

It was a pricey book in its day, at one shilling and six pence for 66 small pages (it was sized to fit in a jacket pocket).

The occupants of the parties’ election war rooms (they are referred to as such) might note some of the contents.

At page 37 there is a sketch map of the area around Salamanca (through which the river Tormes passes). The Tormes, in summer, is a slow weedy river (I can report from personal inspection). The map illustrates the geography of the encounter in that area, in 1812, of Wellington and Marmont.

At page 9 there is a sketch map of the ground from Chesapeake Bay to the Alleghanies and north to Harrisburg from Manassas Junction. This was the theatre of operations (the book is good on terms like that) for Bull Run, the first full battle of the American Civil War.

Captain Boyd’s copyright has expired and the following are some of his dictums;

“Strategy is the method by which a commander seeks to bring his adversary to battle.

The fruits or objects of strategy are two:-

(1) To place your army in such a position that the chances of victory owing to superiority of numbers, position, morale, etc. are greatly in your favour.
(2) That having secured the victory, the fruits of it may be very great.

Tactics is the method employed by a commander to defeat his adversary in battle.

Base. These are of two kinds, base of operations and base of supply. These may or may not be the same. Base of Operations is the fortress or frontier or tract of land, from which the army starts on a hostile expedition, as for instance, the German armies were based on the German Frontier in 1870, or the British were based on the lines of Torres Vedras in the Peninsula. The Base of Supplies is the town, district, or country from which the army draws its supplies, i.e., England in the Peninsular War.

Lines of Communications are the lines of road, railway, river etc., connecting an army with its base. Along these lines all supplies, etc., are passed to the army, and down which prisoners, wounded, etc., are sent to the base…â€?

This is clearly good stuff for the people in the war rooms.

Now some things are immediately obvious; Fianna Fail should avoid the Corrib as a base of supplies. The Minister for the Environment, Heritage and Local Government has waged a burnt earth campaign and denied the use of the water there to the opponents (and his party).

Again, Fianna Fail should instruct canvassers to take no chances with dogs and the like. The party has opened pre-election hostilities with the nurses and hospital consultants, and cannot expect medical treatment for any injuries sustained in the campaign.

Therefore the Fianna Fail lines of supply will, of necessity be long.

Further ruminations await the progress of the campaign.

Constituencies Constitutional Challenge – Directions

THE HIGH COURT
RECORD NO. 2819P/2007

Between

CATHERINE MURPHY and
FINIAN McGRATH

Plaintiffs

And

 

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

Defendants

    26th April 2007

    1. The Defendants have served a Defence.
    2. The parties will exchange legal submissions (sequentially).
    3. The proceedings will be listed for mention before Clarke J. on Wednesday, 2nd May 2007.
    4. It is hoped the trial will commence on Thursday, 3rd May 2007

Corrib Gas Pipeline – 23rd April 2007

THE HIGH COURT
Record No: 840P/2005

BETWEEN:


SHELL E & P IRELAND LIMITED

Plaintiff

And

PHILIP MCGRATH, JAMES PHILBIN, WILLIE CORDUFF,
MONICA MULLER, BRID MCGARRY, PETER SWEETMAN

Defendants


And

THE MINISTER FOR COMMUNICATIONS MARINE AND NATURAL RESOURCES, IRELAND AND THE ATTORNEY GENERAL

Defendants to the counterclaim of second and fifth defendants

Update (26th April 2007)

1. On Monday 23rd April 2007, Judge Laffoy dealt with the issue of costs on a number of Motions in the proceedings.
2. On the Plaintiff’s application for leave to discontinue the Plaintiff’s claim against the Defendants, the court awarded the costs of that Motion to the Defendants (to be taxed in default of agreement).
3. On the State parties’ application for extension of time within which to make discovery, the State parties conceded the Defendants were entitled to costs on the Motion and they were awarded to the Defendants.
4. On the Plaintiff’s application for an extension of time to make discovery to the 2nd and 5th named Defendants, the court awarded the costs to the 2nd and 5th Defendants.
5. On the Motion of the 2nd and 5th Defendants to strike out the pleadings of the Plaintiff for default in making discovery, the court declined to award costs and struck out that motion with no order as to costs.
6. On the Motion of the State parties seeking directions and the trial of a preliminary issue, the court reserved the costs of that motion to be costs in the cause.

Climate change is politics

The Irish Times informs us that a coalition of Irish organisations entitled “Stop Climate Chaosâ€? has been formed to lobby and campaign: “…to ensure Ireland plays its part in preventing runaway climate changeâ€?.

The coalition calls on the Government to

1. Ensure Ireland does its fair share to prevent climate chaos by immediately bringing in a climate change law which provides for an annual Carbon Budget and 3% year-on-year reductions in Irish greenhouse gas emissions.
2. Push for an international agreement to keep the rise in global temperatures to 2 degrees C or less. This means global greenhouse gas emissions must reach their peak and begin to decline irreversibly within 10 years.
3. Support developing countries to adapt to the unavoidable effects of climate change.

So, climate change has now definitely joined Godzilla and pasta in the ranks of “politicalâ€? issues, requiring the Broadcasting Commisison of Ireland (by its lights) to ensure that any radio advertisements of the Stop Climate Change coalition are not aired on Irish commercial radio.

Furthermore, on the available report it would appear the the Standards in Public Office Commision also has a role to play in keeping track of, and curbing, this “third partyâ€?. (See Section 23C of the Electoral Act 1997, as inserted by Section 49 of the Electoral (Amendment) Act 2001) where you will find a definition of “political purpose”.

Constituencies Constitutional Challenge – Motion (3)

THE HIGH COURT
RECORD NO. 2819P/2007

Between

CATHERINE MURPHY and
FINIAN McGRATH

Plaintiffs

And

 

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

Defendants

    25th April 2007

    The proceedings are listed for mention at 9.30 am on 26th April 2007 in Court 1, Distillery, Church St. Dublin 7. (Clarke J.)

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