TDs say process to decide ‘money message’ bills may be unconstitutional

Brid Smith, Richard Boyd Barrett, Gino Kenny and Paul Murphy taking judicial review proceedings

Paul Murphy and Brid Smith  are two of the TDs who got permission earlier this month to bring judicial review proceedings against the Ceann Comhairle . Photograph: Collins Courts

Paul Murphy and Brid Smith are two of the TDs who got permission earlier this month to bring judicial review proceedings against the Ceann Comhairle . Photograph: Collins Courts

 

Four Opposition TDs want High Court permission to expand their legal action to argue that a process under which the Ceann Comhairle decides whether or not a Bill requires a “money message” may be unconstitutional.

The TDs claim a Bill seeking to link exploration licences with meeting carbon reduction targets has been “strangled” by the Ceann Comhairle in line with a possibly unconstitutional process followed by the Dáil and government.

Deputies Bríd Smith, Richard Boyd Barrett, Gino Kenny and Paul Murphy, all members of the Solidarity/People Before Profit grouping in the Dail, got permission earlier this month to bring judicial review proceedings against the Ceann Comhairle, Sean O Fearghail, with the Attorney General as a notice party.

Those proceedings arose from the Ceann Comhairle’s refusal to allow a debate on a motion which sought to prevent the blocking of Opposition Bills by withholding a “money message” necessary to allow them to proceed through the legislative process.

The president of the High Court, Mr Justice Peter Kelly, is case managing the action because of the constitutional issues raised.

The TDs counsel John Rogers SC said on Monday they wanted leave to amend the case to also challenge the Ceann Comhairle’s earlier May 2019 decision that the Bill required a money message and to join the Minister for Communications, the Government of Ireland and Dail Éireann to the case.

In an affidavit, Deputy Smith said the TDs have significant concerns as to how the Ceann Comhairle interpreted the requirement for a money message for the purposes of Dail Standing Order 179 and Article 17.2 of the Constitution.

Their immediate concern when seeking judicial review last month was to challenge the November 4th refusal to allow a debate on her Bill because of the Ceann Comhairle’s view that would conflict with Article 17.2, she said.

That raised issues including whether the Ceann Comhairle had jurisdiction to refuse to put a motion on the Dail order paper and whether his refusal could be judicially reviewed.

Her side now considered those issues can only be properly ventilated in the context in which they arose, the May 2019 decision by the Ceann Comhairle that the Bill required a money message.

Her side wanted the court to consider whether the Ceann Comhairle can decide a money message is required and, if so, how is Standing Order 179 to be applied to a Bill that, on its face, does not involve appropriation of public monies.

If the Ceann Comhairle correctly applied SO 179, further issues arose as to whether SO179 was consistent with the Constitution and whether the State respondents are bound by a decision by the Ceann Comhairle a money message is required.

If passed, the Bill - the Petroleum Development Bill 2018 - is intended to make a significant contribution to achieving Ireland’s greenhouse gas emission reduction targets, she said.

The Bills Office had said last year this Bill did not require a money message, she said. The Office of the Parliamentary Legal Advisor later identified the number of licences which might be affected by the Bill and the Department of Communications had opposed the Bill.

She said, when it became apparent the Bill could pass all stages in the Dail, the Minister for Communications wrote to the Ceann Comhairle in May 2019 indicating the Minister’s view the Bill now required a money message. The Ceann Comhairle informed her on May 22nd 2019, without any prior consultation, the Bill required a money message.

The State respondents clearly took the view a decision whether a bill requires a money message is entirely for the Ceann Comhairle, she added.

Conleth Bradley SC, for the Ceann Comhairle, said he will be opposing the proposed expansion of the case. The issues raised are being addressed by an Oireachtas sub committee, he argued.

Patrick MacCann SC, for the AG, said he expected the Minister and Government will take a similar position but he had to take instructions. The judge said the TDs application had to be adjourned so service issues can be addressed and legal documents to be exchanged. The Dail, he noted, was not represented and he directed it be formally served.

Further case management was adjourned to January 20th.