6/10/2020 Sinnott -v- The Minister for The Environment [2017] IEHC 214 (30 March 2017) When does the Court intervene? 60. In Doherty v. The Government of Ireland and the Attorney General [2011] 2 IR 222, the plaintiff who was then a Senator hoping to be a Teachta Dála (“TD”) sought a declaration that there had been unreasonable delay on the part of the Government in moving the writ for the by-election in the Donegal South West Constituency since a vacancy occurred on 6th June, 2009. All of the writs for the by-election which had been moved in Dáil Éireann from July, 2009 to September, 2010 had been defeated by the exercise of the Whip of the Government to defeat the moving of the writ. The delay in moving the writ for the vacancy was the longest in the history of the State. By the time the proceedings came on for hearing it was indicated that the Government intended to move the writ for the by-election in the first quarter of 2011. 61. Kearns J. at p. 235 under the heading “Justiciability” explained:“[25] When the hyperbole associated with many of the submissions advanced on behalf of both the applicant and the respondents is dispensed with in this case, particularly those on behalf of the respondents which suggested that it would "tear asunder" the tripartite division of powers under the Constitution for the court to express any view on the matters raised, it seems to me that a fairly basic and simple question requires to be addressed. As the provisions of Article 16.7 of the Constitution delegate to the Oireachtas the power to legislate for elections to membership of Dáil Éireann, including the filling of casual vacancies, and as the Oireachtas has purportedly executed that power by enacting s. 39(2) of the Electoral Act 1992, does the court have a function in determining whether the provisions of s. 39(2) require to be interpreted as meaning that a by-election is to be held within a reasonable time, or, as the respondents submit in the alternative, the terms of the subsection leave the Dáil at large as to whether and when it shall direct the Clerk of the Dáil to issue a writ directing the returning officer to cause an election to be held of a member of the Dáil to fill the vacancy mentioned in the writ. [26] A useful starting point is to consider the approach taken to this issue in the High Court by Geoghegan J. in Dudley v. An Taoiseach [1994] 2 I.L.R.M. 321. [27] In that case the applicant was a student residing in the Dublin South Central constituency. Some fourteen months after the sitting Dáil Deputy, John O'Connell resigned his Dáil seat, the vacancy had not been filled by a by-election. Numerous attempts in the Dáil to have the writ moved for a by-election had been successfully resisted by the Government and its supporters. The applicant argued that, as a registered elector in the constituency, his rights to vote at common law, by statute and under the constitution were being infringed. [28] At p. 323, Geoghegan J. stated:“Having regard to Article 16 of the Constitution and in particular s. 7 of that Article which envisages that casual vacancies will be filled and that the filling of them shall be regulated in accordance with law, there must, I think, be at least an arguable case that there is a constitutional obligation to hold a by-election within a reasonable time of a vacancy occurring.”” 62. In marked parallel with the situation arising in these proceedings Kearns J. stated at p. 242 of the judgment:“[49] As has been emphasised, this is not a case in which the constitutionality of s. 39(2) of the Electoral Act 1992 has per se been called into question. Rather, it is a case in which the applicant invites the court to hold that, by reference to the aforesaid constitutional provisions, the Electoral Act 1992 and, in particular, s. 39(2) thereof, must be operated and applied by the Government in a manner which upholds and reflects the constitutional position…. [50] I am satisfied that this is a justiciable controversy… [57] To read s. 39(2) of the Electoral Act 1992 as being subject to the requirement that the writ be moved within a reasonable time (emphasis added by this Court) does no violence www.bailii.org/ie/cases/IEHC/2017/H214.html 10/15