6/10/2020 Sinnott -v- The Minister for The Environment [2017] IEHC 214 (30 March 2017) When must a statutory power be exercised by a Minister? 67. The Supreme Court in Sheahan v. Ireland [1987] I.R. 550 held in allowing the appeal by the defendant that the power of a Minister to commence a statutory provision imposing liability on local authorities for failure to maintain public roads [s. 16(7) of the Civil Liability Act 1961] was an enabling provision in respect of which the discretion was vested in the Government. In that case the Supreme Court (McCarthy J. dissenting) , agreed that the specific provision could be dealt with in that way. Interestingly, Finlay C.J. reserved his view about whether the courts in a case like that which imposes a significant burden on the exchequer could be the subject of a mandamus order. In a similar approach adopted in the dissenting judgment, McCarthy J. felt that an opportunity should be given to allow the Government to adduce evidence to afford justification for not bringing the section into force. 68. In Ó Maicín v. Ireland & Ors. [2014] 4 I.R. 583 which concerned a native Irish speaker’s wish to be tried before a bilingual jury, Clarke J. aptly in the context of the current focus in these proceedings stated at para. 232 on p. 643:“The State has, of course, a duty to vindicate any established constitutional entitlements. If a constitutional entitlement can be established and if there is a means by which it can be vindicated by the exercise of a power vested, even on a discretionary basis, in the State or an organ of the State, then there will always be a strong case for the court declaring an obligation on the part of the State to exercise any discretion in a manner which would vindicate the constitutional right established. The real issue, it seems to me, is as to whether the constitutional right asserted in this case can be said to be established and to apply in the circumstances of this case in the first place. If it is so established and applicable, then clearly the court is obliged to take whatever measures may be appropriate to seek to ensure that such a right is vindicated.” 69. The Constitution, in the words of O’Dalaigh C.J. in McMahon, guarantees the plaintiff that his vote will be secret and that the courts require “that nothing shall be done which would make it possible to violate that secrecy”. Therefore, the Oireachtas and the executive may be restrained by this Court from violating that secrecy. 70. More apposite to the issue in these proceedings is the pragmatic approach adopted by the legislature to confer powers on the defendant Minister to make arrangements by regulations “as may serve voters with visual impairments to mark their ballot papers without assistance”. I accept that the legislature when amending the 1992 Act was conscious of its obligations under the Constitution and recognized modern polling norms when it provided arrangements to protect the secrecy of the ballot. I also acknowledge the persuasive submissions described at para. 66 above. 71. Even if the defendant Minister had indicated an intention to introduce TVDs after an appraisal of the cost and effectiveness of TVDs for VIPs (and it is noteworthy that no such indication was given prior to the 2016 regulations or thereafter) this Court is fortified in its conclusions by the recent judgment of the United Kingdom Supreme Court in R. (Miller) v. Secretary of State for exiting the European Union (appellant) and Ors. [2017] UKSC 5 where at para. 35 it was stated:“…ministers’ intentions are not law, and the courts cannot proceed on the assumption that they will necessarily become law. That is a matter for Parliament to decide in due course. The issues before us must be resolved in accordance with the law as it stands…” 72. The delay in introducing the 2016 Regulations and the history of competing priorities within the franchise section which were relied upon by the defendant in these proceedings to excuse the lack of information available to the plaintiff about studies or analyses to be undertaken (as mentioned for example in the disability sectoral plans of the defendant Minister’s department) cannot be ignored by this Court. The plaintiff comes to this Court seeking declarations for the Executive to heed. The Court recognises that it cannot and should not require the Minister to adopt TVDs or any particular arrangement but it can make a declaration which may guide the defendant Minister about the effect of S 94 (5) (j) of the 1992 Act as inserted by S 3 (1) of the 1996 Act in conjunction with the duty under the Constitution to assure a secret ballot as far as is reasonably practicable. 73. Considerable discussion occurred during the hearings of this case about the wording of the declarations now sought as set out at para. 13 above. It is my view that the Court should not make declarations in the public law sphere which create further uncertainty and potential unnecessary www.bailii.org/ie/cases/IEHC/2017/H214.html 12/15