High Court judgement creaks government one step closer to the end…

Interesting judgement in Pearse Doherty’s case in the Dublin High Court this morning. Although he stops one step short of confronting the legislature (that’s  the Supreme Court’s job) Mr Justice Kearns, High Court President, said:

“I am satisfied that the delay in this case is so inordinate as to amount to a breach of the applicant’s constitutional rights to such a degree as to warrant the court granting some form of relief. Far from the court ’tearing asunder’ the provisions of the Constitution by adjudicating on this application, it is the ongoing failure to move the writ for this by-election since June 2009 which offends the terms and spirit of the Constitution and its framework for democracy.

“The court might, in another case following on from this one, feel constrained to take a more serious view if any Government, not just necessarily the present one, was seen by the courts to be acting in clear disregard of an applicant’s constitutional rights in continually refusing over an unreasonable period of time to move the writ for a by-election.”

With that last point in mind Sinn Fein are expected to move a writ in the Dail tomorrow. So that second case may come sooner rather than later, if the Dail votes it down. Even if they vote it through, it then comes down to when the date for the election is set.

Even if one is run, and lost (FF have not won a byelection since the mdi 90s), the government are still a Jackie Healy-Rae to the good. But given there are two other by-elections pending (not counting the recent vacancy in Donegal NE), unless FF mount a potentially damaging die-in-the-ditch campaign we must be almost assured that the next general election will be in the Spring of next year.

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  • It’s not the job of the Supreme Court to “confront the legislature”.

    The judge has quite a delicate turn of phrase:

    “I do not propose to make a declaration giving effect to my views because, having regard to the respect which the separate organs of government, the legislature, the government and the judiciary have traditionally shown to each other, I am satisfied that once the Government is made aware of the situation with regard to this constitutional injustice, it will take the necessary steps to have the matter remedied in accordance with the law and in accordance with its constitutional obligation.”

  • Nordie Northsider

    Excellent news. The situation could be used as an exercise on a training course for spin-doctors: ‘you are serving one of the most unpopular governments in the history of the state. At a time of swingeing cutbacks you have just wasted taxpayers’ money fighting a High-Court case only to be told that you are effectively denying the democratic rights of your citizens. Put a positive spin on that one.’

    I don’t think that
    jesuitical arguments about the division of legislature and judiciary will get FF very far.

  • joeCanuck

    These things should be codified. An election writ issued within one month of a vacancy say. That should be more than enough time to issue the paperwork.

  • The Greens are due to issue a statement early this afternoon. It is expected that the Donegal SW writ will be moved on it’s own (John Gormley, as Environment Minister moves the writ as far as I know). Dan Boyle is one of those issuing the Green statement so god knows what it will be?

  • Quick update – with no sense of irony, Dan Boyle has indicated on RTE radio that the Greens are going to uphold the constitutional rights of the citizens of Donegal South-West but not the other three constituencies. The cabinet meet later for a final decision.

    Wonder if the High Court will take note since, presumably, a swift challenge to the non-holding of the other by-elections might follow.

  • Nordie Northsider

    No suprise that Dan Boyle should be so scornful of elections. He keeps failing to get elected in them.

  • joeCanuck

    Perhaps one of you pundits over there could enlighten me. If all constituencies were put to the vote, is there a real possibility of the coalition losing its majority?

  • joeCanuck

    The four with vacancies, that is.

  • Mark McGregor

    Yes. They’d lose all four and be a minority (-1)

  • fitzjameshorse1745

    The present state of affairs is intolerable.
    If a cross section of 40 TDs had been killed on a coach trip to Newcastle, County Down for a cross border conference a few months ago……..would the government have held on and not held elections.
    The blame is not entirely Fianna Fáils for treating the electorate with contempt and leaving constituencies without their full voice.
    Step forward Mr George Lee who happily accepted a mandate to represent his constituency and then walked away from them less than a year later.
    While many in the media (rightly) complain about FFs tardiness in not holding elections…which a judge (rightly) rules breaks the spirit of Bunreacht na hÉireann…….the media think Mr Lee is a man of outstanding principle.
    George Lee is a journalist.

  • joeCanuck

    Thanks, Mark. High stakes then. It is shameful that people are left unrepresented because the government is afraid of the democratic will.

  • medillen

    They only have a majority of three, so yes.

  • The current maths is 82 Coalition TDs to 79 Opposition TDs, while the casting vote of the Ceann Comhairle would go with the government giving, in effect, 83 v 79, so the best the Opposition could hope for is a tie (although the government would be propped up by Jackie Healy-Rae and Michael Lowry).
    I’m not convinced but some FFers are actually claiming they might hold Donegal SW as FG and/or SF would have to transfer to the other to keep them out (which would be a real watershed if it happened).

  • Mark McGregor


    That right, almost.

    If the opposition took the 4 seats it would be 83 v 82 in their favour. The Ceann Comhairle only votes in the event of a tie, not to make one. So the government becomes a minority and would fall.

  • joeCanuck


    I don’t think your mathematics adds up. Seems it would be 82 to 83. The Ceann Comhairle vote would only apply in the case of a tie.

  • joeCanuck

    Another question for you pundits. Could the Government get so desperate that they would invite SF to join the coalition or would that lead to total destruction eventually?

  • Mick Fealty

    And you are a man without ethics… apparently… 😉

  • Mark McGregor

    The really cynical thing to do would be to offer Ceann Comhairle to one of the opposition independents, that would shift the balance to +1 in their favour.

    It is guaranteed reelection and cash for anyone that would take on the role.

  • moll1

    How can this government possibly put through a Budget with any authority? How can they hold 3 further bye-elections in the Spring, when it is clear that they are holding on to power by the peak of Healy Rae’s cap? 4 bye-elections they will loose, and then there has to be a general election………….and they preach to us about living beyond our means? Next, like the bankers, we’ll have to give them a couple of million lump sums to get them to go!

  • moll1

    Sinn Fein are too cute to get onboard a sinking ship. It is General Election time now! Anything else is a total waste of tax-payers’ money. They’re delaying the other 3 bye-elections and that could well be unconstitutional as is the one on which the High Court has decided.

  • propaganda

    could we see a temporary pact where the opposition parties would graciously stand aside to allow their strongest candidate a clear run against FF in all 4 by-elections?

  • FF wouldn’t ask and SF wouldn’t accept.

    If they try moving the writ for just the one constituency there’ll be another JR immediately, forcing the High Court to give some sense of what time period onstitutes “reasonable”

    Interesting times. And the party likely to fare worst – the Greens, no matte what they do.

  • fitzjameshorse1745

    Of course I am….apparently 😉
    But basically Id rather trust a man/woman who said they had absolutely no ethics than one who claimed that they had ethics.
    But on a very serious point (by my standards) Lee has got away too easily.

  • Good point.

  • fitzjameshorse1745

    It would be political suicide to invite SF into government before an election or to announce a partnership before an election.
    Even the prospect of (inevitably) losing an Election next year would not get any FF stroke puller to cosy up to SF.
    AFTER an Election it is a different prospect.
    I was actually on holiday in the West of Ireland before the last General Election and SF was really getting ahead of themselves and predicting gains.
    Now in fairness they were a bit unlucky in a few places.
    But with the economic climate as it is ……I expect them to get a few seats.
    The irony is that this time round they are actually talking down their prospects. Yet SF gains might give FF a squeak of a chance at holding on.
    Im sure FF strategists have been thru a lot of scenarios. But going to SF at this stage does not look likely.

  • fitzjameshorse1745

    Yes……the Greens are dead.
    Essentially even in good times they were for austerity.
    Its not so attractive now……all wearing hand made slippers, riding bicycles and making your own soap is all very well as a chosen lifestyle…not so attractive when its imposed or done from necessity.
    But thats the danger with junior partners in coalitions. The Electorate hammers them.

    Its expected that Fianna Fáil will act like Fianna Fáil.
    Expected that Conservatives will act like rampaging red clawed Thatcherites.
    But its the Greens and the Lib Dems who will take the hit (although I still expect the Lib Dems to fight the next election as a coalition…..despite public utterances)

  • ulsterfan

    The “moving of a Writ” is a wonderful phrase dating back to Colonial times and is immersed in the traditions of Westminster.
    Still being used in Ireland?
    Surely they dont still hanker after the Queens Writ?

  • pippakin

    FF are in trouble but I’m not convinced that the other parties would be wise to want a GE now, or even next Spring.

    Government over the next several years is likely to be very painful and whoever is in government will get, at best, no more than a couple of years to blame FF. For evidence of this one has only to look across the pond to the US. Obama is still blaming Bush but the American people have stopped believing it.

    There was a time when delaying the by elections might have looked like a good idea (I wonder if they still think so) but that time has gone and for FF the future, which they will blame on someone else, cannot come soon enough.

  • joeCanuck


    I’m not sure that the bankers went anywhere except laughing all the way home (to the bank).

  • George

    They issue writs in the United States too. It’s called using the English language.

  • Alias

    It doesn’t follow that if the government is in a minority that it falls. Even if a vote of no confidence was called, it just means that Cowen has to bribe a TD on the opposition benches to abstain or vote for the government or hope that he has less sickies than the opposition (one TD that I know of has been seriously ill for last 4 months and can’t be wheeled in to vote).

    Folks will discover that Ireland doesn’t have any economic sovereignty when Labour get into power and can’t do anything other than implement the same economic policies that they now condemning. A Left/Right economic divide in Irish politics is now meaningless when the policy is now determined in the EU.

  • GoldenFleece

    Irish bonds are about to hit 8%

    Four words.

    The. South. Is. ******.

  • Itwas SammyMcNally whatdoneit

    I wonder how much it costs for the government to appeal the court decision (which is what they are doing) as well as moving the writ.

    Also interesting to see the odds on the boy Pearse winning the by-election. SF will need to tidy up their act, like they have done in the North, if they want to get anywhere near power.

    ‘Luckily’ for them they have no chance this time round but should benefit four years later on the back of the inevitable Labour unpopularity.

    As mentioned elsewhere – odds cut from 12/1 to 4/1 for an election this year.

  • Munsterview

    What planet did you just drop in from ? Obviously they do things differently there !

  • Munsterview

    I spend a fair bit of time up in that neck of the woods some years back and it is a complicated wee place. I would like to see figures and reports much closer to the wire before attempting to call this one, they are still far too many variables in the mix, including the short campaign.

    Fianna Failure are repeating their ‘over two quotas’ mantra but that was the general election, in the local government election if memory serves me right there was only around a thousand votes between Fianna Failure and FG. FF have always been blessed with it’s political enemies and this time it is no different, Sinn Fein and Labor have two strong candidates, Fine Gael is still strong up there and there will probably be an independent or two.

    FF could just come out ahead and stay there !

    As it stands it looks like FG or Labor with transfers deciding. However Pierse have done the hard slog and he just may make it ahead of the pack on first count. If the FF vote collapse and they are first out, then enough of FF grudge transfers may go to SF to do the business in the subsequent counts.

    It will be take the the weekend after next newspapers to gauge the mood and the likely collapse of the FF vote before the entrails can be read with any degree of certainty.

    Had I been over that way last week I would have taken a punt for fifty on the odds offered as the indications were there for a favorable High Court ruling. SF will probably come down to two to one or even money and the bookies are the ones to watch during the next week.