Fine Gael TD Mr Michael Ring yesterday lost his High Court challenge to legislation abolishing the "dual mandate". The abolition means members of the Oireachtas may no longer simultaneously hold seats on local authorities.
Ms Justice Laffoy, in a reserved judgment, said the central plank of Mr Ring's case was that he had a constitutional right to stand for election to Mayo County Council. However, she found, there was no constitutionally guaranteed right to stand for election to a local authority.
The powers and functions of local authorities, including those eligible to be members of such authorities, were matters to be decided by the Oireacthas, she ruled.
The decision means that Mr Ring has to decide whether he wishes in future elections to stand for the Dáil or Mayo County Council.
Mr Ring's challenge arose out of the enactment of the Local Government (No 2) Act 2003, disqualifying a person who is a member of either House of the Oireacthas from being elected or co-opted to, or from being a member of, a local authority. Deputy Ring has been a member of a local authority for 25 years. The court heard some 130 Dáil and Seanad members were also members of local authorities.
In her judgment, Ms Justice Laffoy said the question of whether there was a constitutionally protected right of election to membership of a local authority turned on the proper construction of Article 28a of the Constitution. This article indicated limited constitutional protection for local government and local representative assemblies.
The role of local government was "recognised" rather than "guaranteed". Significantly, insofar as the role of local government was recognised in the exercise and performance of powers and functions at local level, the article stipulated that such powers and functions were "conferred by law".
While the constitutional protection was limited, nonetheless Article 28a contained mandatory provisions which were fundamental in ensuring that democratic representation for local communities was safeguarded. These included that local authorities exist and that they be elected at five-year intervals. Eligibility to vote corresponded with eligibility to vote for Dáil elections.
The judge said Article 16 of the Constitution had been described by the Supreme Court as a constitutional code for the Dáil elections. In contrast, Article 28a only provided for those entitled to vote in a local election (which was only partially provided for) and the maximum term of a local authority. It must be assumed, where Article 28a was silent as to the regulation of local government, that the regulation of local authority elections, including the criteria for eligibility for membership of a local authority, had been left within the competence of the Oireacthas.
The whole thrust of Article 28a was that constitutional regulation of local government was minimal and that regulation was by statute. The judge could not discern any basis in logic for the proposition that the framers of Article 28a, and the people enacting it, intended that eligibility should be regulated in precisely the same manner as eligibility for membership of the Dáil. The two assemblies were not the same.
Article 28a was not open to the construction that there was an implicit right to stand for election to a local authority in terms similar to Article 16.
Ms Justice Laffoy adjourned for a week the question of what orders should be made in the case. Mr Ring said afterwards he wished to consult his lawyers before deciding whether to appeal.