Bye/By-Elections in Ireland and the Constitution

May 2021

Bye/By-Elections in Ireland may comply with legislation, however they do not comply with the Constitution.

Submitted to the Dail Petitions Committee

Available to download here: Petitions Committee for 33 Dail 2021 May

Re: Petition No: P00006/22 “Bye/By-Elections in Ireland may comply with legislation however they do not comply with the Constitution.” Dear Ms. I refer to your correspondence dated 11 February in relation to Petition No: P00006/22 “Bye/By-Elections in Ireland may comply with legislation however they do not comply with the Constitution”. In this context, it may be useful to set out the current statutory framework for the holding of bye-elections. Article 16.7 of the Constitution provides that ‘…..elections for membership of Dáil Éireann, including the filling of casual vacancies, shall be regulated in accordance with law’. The law in relation to Dáil bye-elections is set out in section 39 of the Electoral Act 1992, as amended. Similarly, Article 18.10.3 of the Constitution provides that ‘Casual vacancies in the number of the elected members of Seanad Éireann shall be filled in the manner provided by law’. The law in relation to Seanad bye-elections is set out in section 13 of the Seanad Electoral (University Members) Act 1937 and in Part V of the Seanad Electoral (Panel Members) Act 1947 as amended by the Seanad Electoral (Panel Members) Act 1954. The Programme for Government – Our Shared Future contains a commitment to examine the replacement of bye-elections with an alternate list system. In this regard, you may wish to know that the Programme for Government also commits to the establishment of a statutory, independent Electoral Commission. The establishment of the Electoral Commission is currently being progressed as part of an Electoral Reform Bill, which is included on the list of priority legislation in the Government's current legislation programme. It is expected that the Bill will be published shortly. It is envisaged that the Electoral Commission will hold research and advisory functions, and therefore it will be well placed to make recommendations to Government on electoral matters JCPP-r-874-2022

This petition relates to

----Article 16-7 Subject to the foregoing provisions of this Article, elections for membership of Dáil Éireann, including the filling of casual vacancies, shall be regulated in accordance with law (emphasis added) ([Article 28.2 and also Article 5] ‘subject to the provisions of this Constitution) See Crotty v An Taoiseach 1987 - "It is not within the competence of the Government, or indeed the Oireachtas, to free themselves from the constraints of the Constitution

The State are carrying out By/Bye elections based on the law that was drafted (based on 1922 Constitution)

— However the legislation is not compliant with the 1937 Constitution.

The Seanad has nothing to do with Dail Elections, for example if the Seanad was abolished at referendum all reference to same would be deleted. In addition members elected at Seanad Eireann have no legal right to vote in the Dail chamber. Even the Co-opted Seanad Ministers members have no vote in legislation. (as you are aware former ************ believes not even at committee stage).

Drafting of legislation can and have led to errors in legislation. These are usually corrected when brought to the attention of the relevant Department (‘It is necessary for the minutiae of many legislative provisions to be formulated, and indeed revised and updated, following the enactment of the principal law’) this can only be done in the Dail Chamber.

The current legislation is repugnant to the Constitution, however there can normally be no retrospective legal claims against legislation drafted in error. As you can see from above in this case all that is required is a correction of the principal law. However there is a legal view that it is no longer an error from 2016 onwards because the State was aware ====

This is what I sent to the AGs Office -- This is what I sent to the AG -- Being the chief officer in the State and thereby assisting the Government to ensure that State/Legislation is compliant with the Constitution you

may wish to pursue the enclosed attachment which clearly demonstrates that the current legislation in relation to Bye Elections is not compliant with Article 16 of the Constitution.

Reply--

Dear Mr. O'Malley,

RE Bye-elections and Article 16

I refer to your email message of 25th May 2016. Your observations as to whether the current statutory provisions for filling casual vacancies in Dáil Éireann by means of bye-elections is in accordance with Article 16 of the Constitution, have been forwarded to the relevant officials in the Department of the Environment, Community, and Local Government for their information.

Yours sincerely, **************** Director General's Private Office AGO; 4071

Just on a point of clarification if Article 26 is applied to legislation and approved by the Supreme Court the matter is closed notwithstanding that it was repugnant to the Constitution.

Lots of unnecessary stress and expense to the State and by extension the tax payer have occurred over the years in relation to Bye/By-elections, including the termination of sitting governments.

So I am now asking the committee to make a decision based on the submissions and a Constitutional lawyer.

(I also note that the Department has now corrected the afore mentioned however I note there is no apology to the Committee for the misleading information originally submitted.)

For your information you can see from the attachment how the EU Petitions Committee dealt with my petition in relation to Educational discrimination applied by the Irish Government to farmers.

john