Thursday, 4 November 2010
Order of Business.
It is proposed to take No. 8a, Immigration, Residence and Protection Bill 2010 - Financial Resolution; No. 8b, motion re statement of Estimates for the Houses of the Oireachtas Commission; No 8g, motion re by-election for Donegal South-West; No. 8c, motion re by-election for Donegal South-West; No. 8d, motion re by-election for Dublin South; No. 8e, motion re by-election for Waterford; No. 8f, motion re by-election for Donegal North-East; No. 3, Local Government (Mayor and Regional Authority of Dublin) Bill 2010 - Second Stage (resumed), to adjourn at 1 p.m., if not previously concluded; and No. 4 Civil Law (Miscellaneous Provisions) Bill 2010 - Order for Second Stage and Second Stage.
It is proposed, notwithstanding anything in Standing Orders, that Nos. 8a and 8b shall be decided without debate; in the case of 8g and in the event that any of the other motions for by-elections are being moved, Nos. 8g, 8c, 8d, 8e and 8f shall be debated together and decided separately, the proceedings shall, if not previously concluded, be brought to a conclusion after 60 minutes, and the speeches shall be confined to a Minister or Minister of State and to the main spokespersons for Fine Gael, the Labour Party and Sinn Féin, who shall be called upon in that order, who may share their time, and which shall not exceed 15 minutes in each case.
Before we deal with any business here, I should like confirmation from the Taoiseach that arising from the judgment of the High Court, yesterday, which is very clear in its ruling-----
I understand that. We are now in a position where the Attorney General has not given clear advice in the event of the Government winning an appeal to the Supreme Court. We are in the throes of preparation for a budget and fiscal plans at a time special needs hours have been reduced and home help care is under pressure, and the Government is going to appeal to the Supreme Court on the definition of an inordinate amount of time-----
-----at a considerable cost to the taxpayer, when the Government was given a clear option last May, in a Bill published by Deputy Hogan, for the filling of casual vacancies arising in the Dáil to the effect that a time limit of six months should be imposed, which was constructive-----
The point is that this appeal to the Supreme Court will not only cost the taxpayer money, but anybody in this House is capable of defining what an inordinate delay is, in this context. The Bill proposed by Deputy Hogan last May-----
I recommend to the Government and Taoiseach that this decision not be appealed to the Supreme Court and that the Bill produced last May by Fine Gael be introduced, which Bill allows for orderly, realistic and objective legislation-----
-----which would not require the Government to be involved in this mess whereby the High Court has effectively ordered it to hold a by-election and in respect of which it now intends to cost the taxpayer more money by going to the Supreme Court for a definition that any man in the street could give, namely, six months is the period within which all vacancies should be filled.
-----the Government by virtue of this appeal to the Supreme Court is prolonging its stay in Government. It is refusing the people their mandate in respect of other by-elections pending, namely, Waterford, Dublin South and Donegal North-East.
I would like a response from the Taoiseach in regard to the reasons his Government has accepted the recommendation of the High Court and now wants to appeal that decision to the Supreme Court, which appeal will delay other legal actions being taken in respect of the other two by-elections.
Likewise, before the Labour Party can agree the Order of Business proposed by the Taoiseach, which sets out a sequence for the taking of a number of motions for the moving of writs in respect of outstanding by-elections, we want a response from the Taoiseach in regard to the Government's decision to appeal yesterday's High Court decision in respect of the Donegal South-West by-election.
I will explain the reason this is significant in the context of the Order of Business. My explanation relates to the sequence in which this is presented to us. There are four by-elections-----
I am asking for a response from the Taoiseach before agreeing anything on the Order of Business, which I am entitled to do.
I understand that the Government has decided to appeal yesterday's High Court decision to the Supreme Court. Yesterday, the Taoiseach said that the holding of by-elections is a matter for the House. We know from what we have read in the newspapers that it is the Government's intention to hold the by-election in Donegal South-West and to oppose the holding of the by-elections in the other three constituencies. If the Government appeals the decision of the High Court to the Supreme Court it will prevent, I expect, the possibility of legal challenge to its refusal to hold the remaining three by-elections. The issue which will be-----
-----of the House when we are making valid points. The point I am making relates directly to the Order in which we are expected to deal with these matters, as presented by the Taoiseach.
The Government is presenting a formula which will allow the Donegal South-West by-election to go ahead, in respect of which it has no choice because the High Court has stated that by-election must go ahead, but which is designed to stop the other three by-elections from going ahead. It is a manifestly political ruse by Government to deprive the Dáil from making a decision to hold the other three by-elections.
Like Deputy Kenny, before we agree the Order of Business I want clarification from the Taoiseach in regard to what is the Government's intention with regard to the appealing of yesterday's High Court decision.
Regardless of what response the Taoiseach gives to the questions posed, the fact remains that what the Government is now doing is utilising the judicial process to thwart the democratic process, as reflected upon but not specifically stated in the judgment delivered by the President of the High Court yesterday in regard to what the Government is doing. I ask that those entrusted with responsibility for same would take note of what the Government is doing in this instance. There is no substantive basis for the appeal Government is presenting. The process is about thwarting the opportunity of the people of Dublin South, Waterford and Donegal North-East to pass judgment on this Government's performance at an early opportunity. It is doing at the taxpayers' expense. Regardless of what answer the Taoiseach gives those are the facts of the matter. I would appeal-----
-----because the judgment gives rise to importance constitutional issues regarding the separation of powers and the boundaries of the court's role in the important matter of elections and its power to make declarations that have the effect of requiring Government to exercise its voting power in a particular manner, and the need for certainty on the legal position with respect to future by-elections. An important issue has arisen here.
The importance of an appeal is underlined by the fact that yesterday's judgment is the first time the courts have interpreted the Constitution to give rise to an obligation of this nature. In the case of Dudley v. An Taoiseach, the High Court merely held that there was an arguable case that the Government was under an obligation to move the writ for a by-election which had been outstanding for almost 14 months. When Senator Doherty received leave from the High Court in July of this year, it had been 11 months since former Deputy Pat the Cope Gallagher had vacated his seat.
As regards the Government's constitutional obligations, the Government is appealing the decision for the reasons outlined on advice of the Attorney General. The Government has a constitutional obligation to do so. Like other litigants before the courts, it is fully entitled to await the determination of the matter by appeal. Pending the outcome of the appeal to the Supreme Court the Government decision remains unchanged with regard to the other Dáil vacancies that currently exist. In the interests of ensuring we respond in an appropriate manner to that which emerged yesterday from the High Court, the Government will proceed with the holding immediately of the Donegal South-West by-election.
The Taoiseach has responded to the matter I raised and that raised by Deputy Gilmore and Deputy Ó Caoláin. This is a matter for the House. The Minister for the Environment, Heritage and Local Government is not here-----
This Bill was published to give the people of every constituency in our electorate the right of full representation in the Dáil. It was voted down by the Government, which could have prevented the mess it is now in, where the High Court has given a very clear instruction of which the Government had to take cognisance. Unless there is crystal clear evidence from the Attorney General to the Government that he had no doubt but that an appeal would succeed in the Supreme Court, this course of action should not be followed. The Taoiseach has a legal background.
No, Deputy; we have finished. Is the proposal for dealing with Nos. 8a and 8b without debate agreed to? Na Teachtaí atá ar thaobh na tairisceana aibridís "Tá"; na Teachtaí atá ina coinne aibridís "Níl". Sílim go bhfuil an cheist rite.
The Dail Divided:
For the motion: 75 (Bertie Ahern, Dermot Ahern, Michael Ahern, Noel Ahern, Barry Andrews, Chris Andrews, Seán Ardagh, Bobby Aylward, Niall Blaney, Áine Brady, Cyprian Brady, Johnny Brady, John Browne, Thomas Byrne, Dara Calleary, Pat Carey, Niall Collins, Margaret Conlon, Seán Connick, Mary Coughlan, Brian Cowen, John Cregan, Ciarán Cuffe, John Curran, Noel Dempsey, Jimmy Devins, Timmy Dooley, Michael Finneran, Michael Fitzpatrick, Seán Fleming, Beverley Flynn, Paul Gogarty, John Gormley, Mary Hanafin, Mary Harney, Jackie Healy-Rae, Máire Hoctor, Billy Kelleher, Peter Kelly, Brendan Kenneally, Michael Kennedy, Tony Killeen, Michael Kitt, Tom Kitt, Brian Lenihan Jnr, Conor Lenihan, Michael Lowry, Tom McEllistrim, Mattie McGrath, John McGuinness, Martin Mansergh, John Moloney, Michael Moynihan, Michael Mulcahy, M J Nolan, Éamon Ó Cuív, Seán Ó Fearghaíl, Darragh O'Brien, Charlie O'Connor, Willie O'Dea, John O'Donoghue, Noel O'Flynn, Rory O'Hanlon, Ned O'Keeffe, Mary O'Rourke, Christy O'Sullivan, Peter Power, Seán Power, Dick Roche, Trevor Sargent, Eamon Scanlon, Brendan Smith, Noel Treacy, Mary White, Michael Woods)
Against the motion: 68 (Seán Barrett, Joe Behan, Pat Breen, Tommy Broughan, Richard Bruton, Ulick Burke, Joan Burton, Joe Costello, Catherine Byrne, Joe Carey, Deirdre Clune, Paul Connaughton, Noel Coonan, Simon Coveney, Seymour Crawford, Michael Creed, Lucinda Creighton, John Deasy, Jimmy Deenihan, Andrew Doyle, Bernard Durkan, Damien English, Olwyn Enright, Frank Feighan, Charles Flanagan, Terence Flanagan, Eamon Gilmore, Brian Hayes, Tom Hayes, Phil Hogan, Brendan Howlin, Paul Kehoe, Enda Kenny, Ciarán Lynch, Kathleen Lynch, Pádraic McCormack, Shane McEntee, Dinny McGinley, Finian McGrath, Joe McHugh, Liz McManus, Olivia Mitchell, Arthur Morgan, Michael Noonan, Caoimhghín Ó Caoláin, Aengus Ó Snodaigh, Kieran O'Donnell, Fergus O'Dowd, Jim O'Keeffe, John O'Mahony, Brian O'Shea, Maureen O'Sullivan, Willie Penrose, John Perry, Ruairi Quinn, Pat Rabbitte, James Reilly, Michael Ring, Tom Sheahan, P J Sheehan, Seán Sherlock, Emmet Stagg, David Stanton, Billy Timmins, Joanna Tuffy, Mary Upton, Leo Varadkar, Jack Wall)
Tellers: Tá, Deputies John Cregan and John Curran; Níl, Deputies Emmet Stagg and Paul Kehoe
Question declared carried
On a point of order, a Cheann Comhairle, you moved to the vote after the resumption of the House without giving an opportunity to either Deputy Kenny or me, both of whom were offering. I had an issue I wished to raise with you, Sir, in respect of the reply the Taoiseach gave to the House to the questions we asked earlier. The Taoiseach said the issue being appealed to the Supreme Court related to the separation of powers. I had wished to ask the Taoiseach to clarify to which separation of powers he was referring. Was he referring to the separation of powers as between-----
I have a question for you, a Cheann Comhairle, and I would like you to listen to it. The Taoiseach said the issue being appealed related to the separation of powers. I had wished to ask the Taoiseach if that was the separation as between the Oireachtas and the Judiciary since the holding of by-elections is a matter for the Oireachtas. Were you, Sir, informed by the Government that it was its intention to appeal to the Supreme Court a matter relating to the separation of powers between the Oireachtas and the Judiciary? There is also an issue about the separation of powers as between the Oireachtas and the Government.
Under Standing Order 26 I cannot allow a full-scale debate on the issues the Deputy wishes to debate. I do not mind. There are other ways to do it but the Deputy will have to find the other ways and not use the Order of Business. The Deputy must realise that. The control of the House is dominated and dictated by the Standing Orders set out and agreed by the Committee on Procedure and Privileges. I cannot change that.
The Ceann Comhairle will not listen to any point of view. I am supportive of the Donegal South-West by-election being held. The Chair has decided on No. 2 about which I want to raise a number of points of order.
The Minister for the Environment, Heritage and Local Government who has responsibility for this is not here. He should be here. I want to save the Irish taxpayer serious money.
I offer the Taoiseach in the spirit of constructive progress a copy of our Bill, which was published in May this year by Deputy Phil Hogan, namely, the Electoral Representation (Amendment) Bill. This would allow for the business of the House to be conducted by itself and for the filling of all casual vacancies within a six-month period. If the Taoiseach decides to come in with his own Bill next week, I will facilitate him. There is no need to go to the Supreme Court for a definition of "an inordinate delay". We can adjudicate on that here ourselves. All casual vacancies should be decided within a six-month period.
If the Taoiseach and the Government want to prolong their own stay in office by making an appeal to the Supreme Court, which will prevent legal action being taken by anybody else in respect of pending by-elections in other constituencies, that speaks for itself. It is an attempt to use court time to have a longer stay in a government, which is doomed.
I have a straight question. The Taoiseach has asked for constructive suggestions. Is he prepared to accept this Bill or to come in with his own next week to allow the House to fill all casual vacancies within a six-month period? If so, we will not have any further row about this.
I am asking a question about legislation. The House can decide by legislation what is a reasonable period of time within which to hold a by-election. Deputy Kenny referred to the Bill that he has presented. There is also a report of all-party committee, which recommended to this House that by-elections should be held within a specified period of time. Without troubling the Supreme Court with this, the House can decide by legislation what is a reasonable period of time. The reality is the Government parties are going to the Supreme Court in order to string this out and in order to avoid holding the other three by-elections so that they can stay in office for longer that they are wanted by the people.
Then we had the leader of the Fine Gael Party who suggested we should bring in a Bill and not hold by-elections until six months after its enactment, which is longer than the undertaking I have given regarding the other two by-elections. If the Deputy can try to figure out what he is doing, he can give us a shout.