The president of the High Court has said he may appoint a three-judge court to hear an action by four opposition TDs over the Ceann Comhairle's refusal to allow a vote on changing Dáil standing orders so as to stop the Government blocking Opposition Bills.
Mr Justice Peter Kelly said the case appears to raise important constitutional issues concerning the entitlement of the courts to intervene in work of parliament and the threshold for any such intervention.
The case is fixed for hearing on December 17th but may have to be deferred to another date as the TDs want to “reshape” it in a way that may widen the scope of it.
On Monday, the judge granted an application by John Rogers SC, for the TDs, for two weeks within which to consider amending either the grounds of challenge and/or to seek wider orders.
The case is against Ceann Comhairle Sean Ó Fearghail and the Attorney General has been made a notice party.
Conleth Bradley SC, for the Ceann Comhairle, said he will argue the issues raised by the TDs are not justiciable by the courts. Patrick MacCann SC, for the Attorney General, indicated he will advance a similar argument.
Deputies Bríd Smith, Richard Boyd Barrett, Gino Kenny and Paul Murphy secured permission earlier this month to bring the judicial review proceedings.
Mr Justice Garrett Simons found they had met the legal threshold for judicial review as they had shown their case was "arguable".
They are challenging a November 4th refusal by the Ceann Comhairle to place a motion, submitted by Ms Smith, on the Dáil order paper for debate in the chamber on November 6th
The motion sought to prevent the Government blocking Opposition Bills by withholding a “money message” necessary to allow them to proceed through the legislative process even when they have been voted for by the Dáil.
The TDs claim the Ceann Comhairle’s decision is a breach of the rules and their constitutional rights.
Mr Justice Simons, while satisfied the threshold of arguability had been met, refused to grant the TDs a temporary injunction requiring the Ceann Comhairle to restore the motion to the order paper.
When the case was mentioned on Monday before Mr Justice Kelly, Mr Rogers said his side had learned it was intended to appoint a three-judge High Court to hear it.
Counsel said Mr Justice Simons grant of leave was on November 6th, it concerned events that might occur that day and the TDs were refused an interim order concerning those events.
Money message
He said this whole matter went back to events last May, including a review by the Ceann Comhairle which lead to a reversal of a decision that Ms Smith’s Petroluem Development Bill was not a money message Bill. Reasons for that were provided later in May.
The upshot of that was the four TDs decided to seek amendment of the standing orders of the Dáil. As opposition TDs, they were relying on using Private Members’ time to advance the motion.
The Ceann Comhairle said on November 6th the motion was inadmissible.
There are “real issues” about the mode of the decision concerning whether the Bill was a money message Bill, he said.
On the face of it, the case as of now is limited to the November decision, not the May decisions, and the TDs wanted time to “reshape” the case and “bring meaning to it in a way that would serve parliament”.
Mr Justice Kelly said he had become aware of Mr Justice Simons’ judgment and considered this might well be a case where a three-judge court was required because of the constitutional issues raised and the potential implications of those.
Mr Rogers’s side may seek fresh leave for other reliefs, or to raise fresh grounds to address what he sees as the real issues in the case as he was now informed, the judge noted. The respondents maintained the courts cannot get involved.
If that remains an issue, that is of “prime constitutional importance” and would justify a divisional court, he said.
He gave Mr Rogers the two weeks sought after which he will deal with further case management.
