Mary Coughlan (Donegal South West, Fianna Fail)

I move:

That the Ceann Comhairle direct the Clerk of the Dáil to issue his writ for the election of a Member to fill the vacancy which has occurred in the membership of the present Dáil consequent on the election to the European Parliament of Pat "The Cope" Gallagher, a member for the constituency of Donegal South-West.

The Government last evening considered the judgement delivered by the President of the High Court concerning the vacancy for membership of Dáil Éireann in Donegal South-West. Having done so, and having considered the views of the Attorney General in the matter, it has decided that, given the constitutional issues raised and the implications of the judgement for the holding of future by-elections, the making of an application for leave to appeal is warranted to ensure their consideration by the Supreme Court. Those issues include the separation of powers and the boundaries of the courts' role in the very important matter of elections. The case has raised the question of whether the Oireachtas is permitted to provide in legislation that Dáil Éireann should be free to decide when to hold by-elections, without imposing any time limit on the House. The court's power to make a declaration has the effect of requiring the Government to exercise its voting power in a particular manner. There is a clear need for constitutional certainty on the legal position with respect to future by-elections.

Notwithstanding the decision to appeal the judgement, the findings of the President of the High Court are such that the Government has determined to proceed immediately with the movement of a writ for a by-election in Donegal South-West to fill the seat left vacant following the election of Pat "the Cope" Gallagher as a Member of the European Parliament. It is proposed that the election will take place three weeks from today, on Thursday, 25 November 2010.

Yesterday's judgment concerned only the vacancy in respect of Donegal South-West. That by-election is distinct in that many more months have elapsed since Deputy Gallagher vacated his seat, compared to when Deputies Lee, Cullen and, indeed, McDaid resigned from the House.

With regard to the Government's constitutional obligations, the Government is appealing the decision for the reasons I have outlined. This is because the Government, and indeed all Members of this House, should not accept that it is a matter for the courts, rather than the Oireachtas, to decide when by-elections should be held. The Government, like other litigants before the courts, is fully entitled to await the determination of the matter by appeal. Therefore, pending the outcome of the appeal to the Supreme Court, the Government's position remains unchanged with regard to the other vacancies that arise.

In the case of Donegal South-West, it is the Government's view that an immediate and short campaign is warranted to address quickly the findings of the judgment, as this is a critical time for our country working, as we are, towards publication of the four-year plan and preparing for budget 2011. For that reason, our preferred timing for the holding of this and the other outstanding by-elections was next spring. As my colleague, the Chief Whip, Deputy Curran, made clear while taking private notice questions on this matter in the House yesterday, we are currently living through an economic crisis with few parallels in our history and the Government's attention has necessarily been fully directed at budgetary matters.

The spring would have given the people of Donegal South-West the opportunity to make their electoral choice with a debate informed by knowledge of the forthcoming budget and the alternatives to be proposed by the parties opposite. However, this is not to be the case. The by-election will, therefore, be one in which the people of Donegal South-West will have to decide which candidate represents the party willing to take the tough and difficult decisions necessary to get the economy back on track. They will have to determine what choice to make by asking which party is demonstrating it has a clear plan for economic recovery and a return to sustainable growth. They must make their judgment on which party is putting the national interest above that of short-term political populism.

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