Smith v An Ceann Comhairle [2019] IEHC 746 (06 November 2019)

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Revised note of ex tempore judgment delivered by Mr Justice Garrett Simons on 6

1. This is the court’s ruling in relation to an application for leave to apply for judicial review,

and for certain interlocutory and interim relief in the event that leave is granted. Before

turning to discuss the substance of the case, it may be of assistance to remind the parties

of the precise function of the court at this stage of the process. An application for leave

to apply for judicial review is made on what is known as an ex parte basis. In other

words, one side only is heard, that is the applicant’s side. The purpose of an ex parte

application is as a form of filtering device whereby the court assesses—by applying a

relatively low threshold—whether a case against a public authority, such as in this case

the Ceann Comhairle, is arguable or stateable. The purpose, in effect, is to ensure that

public authorities are not troubled with cases that cannot succeed.

2. There are a number of implications that flow from that. First of all, the test for leave to

apply for judicial review is a very low test. It is arguability, and the parties should

understand that the fact that a court grants leave to apply for judicial review does not

necessarily mean that the applicant will succeed at full hearing. Rather, the matter will

be heard inter partes in due course and a court will then rule upon the merits of the case,

3. The second aspect is that it is very unusual for a respondent to be on notice of a leave

application. As I said, it is an ex parte application and, therefore, ordinarily the applicant

makes the application on its own. The applicant is under a duty of good faith, he or she

(usually through their counsel) will inform the court of both the good and bad points in

the case. The court will make the preliminary decision as to whether or not the case can

4. The matter came before me this morning at 11:00 am. It was clearly an urgent matter

for the reasons I will subsequently explain. Given the high constitutional issues involved

and the potential implications of granting an injunction, I directed that the application be

made on notice to the other side. In other words, on notice to the Ceann Comhairle. This

possibility is expressly provided for under the Rules of the Superior Courts under O. 84, r.

“24.(1) The Court hearing an application for leave to apply for judicial review may,

having regard to the issues arising, the likely impact of the proceedings on the

respondent or another party, or for other good and sufficient reason, direct that the

application for leave should be heard on notice and adjourn the application for leave on

such terms as it may direct and give such directions as it thinks fit as to the service of

notice of the application for leave (and copies of the statement of grounds, affidavit and

any exhibits) on the intended respondent and on any other person, the mode of service

5. Counsel on behalf of the Ceann Comhairle attended this afternoon. In particular, leading

counsel Mr. Conleth Bradley, SC, and junior counsel Ms. Catherine Donnelly attended

briefed by the Office of the Legal Clerk of Dáil Éireann. I am very grateful to those

parties for their submissions, but it is important to emphasise that they did come at very

short notice, and, by definition, their ability to make arguments would have been

somewhat constrained. But there is no injustice caused by that because this is an

6. I want to emphasise that the court heard the application urgently. I heard submissions

from the other side, but I understand that the submissions are not as full, and there was

not affidavit evidence filed, which might otherwise have been the case.

7. The principal reason I put the application on notice was, as I say, in relation to the

possibility of interim relief. For the reasons which I will outline, I am not going to grant

interim relief. I will be granting leave to apply for judicial review and I will hear the

8. Mr. Bradley, SC, on behalf of the Ceann Comhairle very properly indicated that if there

was a risk of interim relief being granted, he would have wished to put in further

materials including affidavit materials. But in circumstances where this court is not going

to make an interim order, there is no injustice done to Mr. Bradley’s clients by not

adjourning the matter further and because it is urgent, I think that it was appropriate that

9. The standard both parties agree is that of arguability, that is the test laid down in the

“It is, I am satisfied, desirable before considering the specific issues in this case to set

out in short form what appears to be the necessary ingredients which an applicant must

satisfy in order to obtain liberty of the court to issue judicial review proceedings. An

applicant must satisfy the court in a prima facie manner by the facts set out in his

affidavit and submissions made in support of his application of the following matters:—

(a) That he has a sufficient interest in the matter to which the application relates to

That the facts averred in the affidavit would be sufficient, if proved, to support a

stateable ground for the form of relief sought by way of judicial review.

That on those facts an arguable case in law can be made that the applicant is

That the application has been made promptly and in any event within the three

months or six months time limits provided for in O. 84, r. 21 (1), or that the Court is

satisfied that there is a good reason for extending the time limit. The Court, in my view,

in considering this particular aspect of an application for liberty to institute proceedings by

way of judicial review should, if possible, on the ex parte application, satisfy itself as to

whether the requirement of promptness and of the time limit have been complied with,

and if they have not been complied with, unless it is satisfied that it should extend the

time, should refuse the application. If, however, an order refusing the application would

not be appropriate unless the facts relied on to prove compliance with r. 21 (1) were

subsequently not established, the Court should grant liberty to institute the proceedings if

all other conditions are complied with, but should leave as a specific issue to the hearing,

upon notice to the respondent, the question of compliance with the requirements of

That the only effective remedy, on the facts established by the applicant, which

the applicant could obtain would be an order by way of judicial review or, if there be an

alternative remedy, that the application by way of judicial review is, on all the facts of the

10. I now propose to consider, first of all, whether the case as put forward to me is arguable

11. The proceedings have their genesis in an ongoing controversy as to the use of money

messages in the current Dáil Éireann. One of the unusual features of the current Dáil

Éireann is, of course, that the Government is a minority government and, therefore, does

not, as had been the position in relation to most previous governments, command a

majority in the House such as that it can effectively control the business of the House.

12. Members of the opposition have put forward, on a number of occasions, Private Members’

Bills. These Bills have, however, been put into a form of limbo as a result of the use of

Article 17 of the Constitution. In effect, Article 17 reserves onto the Executive the power

to initiate and proceed with legislation which would involve a charge on the funds of the

“Dáil Éireann shall not pass any vote or resolution, and no law shall be enacted, for the

appropriation of revenue or other public moneys unless the purpose of the appropriation

shall have been recommended to Dáil Éireann by a message from the Government signed

14. Such messages are colloquially known as “money messages”.

15. The Applicants in these proceedings are four members of Dáil Éireann and they are

concerned at what they allege is an overuse of the money message procedure. They

have set about taking steps which they hope will bring to an end what they say is an

16. To achieve this, what they have sought to do is to amend one of the Standing Orders of

Dáil Éireann, Standing Order 179. This is the standing order which in effect gives life to

Article 17 of the Constitution by ensuring that certain Bills only progress if a money

“Bills involving the appropriation of revenue or other public moneys.

179.(1) A Bill which involves the appropriation of revenue or other public moneys, other

than incidental expenses, shall not be initiated by any member, save a member of the

The Committee Stage of a Bill which involves the appropriation of revenue or

other public moneys, including incidental expenses, shall not be taken unless the purpose

of the appropriation has been recommended to the Dáil by a Message from the

Government. The text of any Message shall be printed on the Order Paper.

An amendment to a Bill which could have the effect of imposing or increasing a

charge upon the revenue may not be moved by any member, save a member of the

17. The four members of Dáil Eireann had proposed to use their Private Members’ time this

afternoon to put before the House a motion to amend Standing Order 179. (This motion

had been listed in the Report of the Business Committee dated 24 October 2019 setting

out arrangements for business and business scheduled for Tuesday to Thursday 5 – 7

18. The Ceann Comhairle, in purported exercise of his power under Standing Order 27,

“28. (1) Every sitting of the Dáil shall be governed by a printed Order Paper which shall

(2)(a) Subject to Standing Order 27B, the Business Committee shall have the right to

determine the order in which Government and private members’ business shall appear on

the Order Paper and, by announcement, the order in which it shall be taken each week.

Any announcement or proposals made by a member of the Business Committee

under Standing Order 27E shall be made on Tuesdays (or on a Wednesday where the Dáil

does not sit on the Tuesday of that week), immediately following Leaders’ Questions.

Subject to paragraph (d), following the proceedings comprehended by

paragraph (b), the Ceann Comhairle may permit, at his or her discretion, questions to the

Taoiseach about the taking of business which has been promised, including legislation

promised either within or outside the Dáil; about the making of secondary legislation; and

as to when Bills or other documents on the Order Paper needed in the House will be

circulated: Provided that the Taoiseach may request a Minister or Minister of State to

The proceedings on the matters comprehended by paragraphs (b) and (c) and

Standing Order 27E shall not exceed 30 minutes, save that any time taken on a division

on the Order of Business shall not be reckoned in the calculation of that 30 minutes.

“I refer to your Private Members’ motion that I have examined and taken advice upon.

Your motion seeks to amend Dáil Standing Order 179, which gives effect to Article 17.2 of

At the outset, there are serious drafting ambiguities within the motion which make it

unclear and give rise to difficulties of interpretation and implementation.

It appears that the effect of paragraph (3) could allow Private Members’ Bills, which would

constitutionally require a recommendation from Government, to be passed by Dáil

Éireann without one. As such, this paragraph conflicts with the scheme of the separation

It appears that paragraphs (2) (b) and (4) are consequential on paragraph (3) and would fall as

In the circumstances the motion cannot be printed on the Order Paper and I await your

21. The Ceann Comhairle indicated that he had received legal advice to the effect that it

would be unconstitutional for the House to deal with Bills in respect of which a money

message had not been received. It seems that the legal advice was initially given orally,

but it appears from the content of a subsequent Dáil debate that it has now been put into

22. As I say, that is the underlying controversy, whether or not the money message system is

being over abused. The Applicants in this case seek to remedy it.

23. The immediate cause of the controversy was the refusal of the Ceann Comhairle to allow

their motion to go ahead, and that decision, which was made earlier this week,

precipitated a series of events which culminated in the application before this court this

24. In order to decide whether leave to apply for judicial review can be granted, it is

necessary to consider whether the threshold of arguable case has been reached. It

seems to me that this may usefully be approached in two stages. The first question is

whether there is an arguable case that Article 17 of the Irish Constitution is being

overused. It seems to me, on the basis of the material and, in particular, a document

entitled “Opinion on the Constitutional Limits of the ‘Money Message’ Procedure under

Article 17.2 of the Constitution of Ireland (“the Academics’ Opinion”) (prepared by Dr

David Kenny, Assistant Professor in Law, Trinity College Dublin and Dr Eoin Daly, Lecturer

in Law, National University of Ireland, Galway) which has been put before me on affidavit,

that there is at least an arguable case that the current understanding by the Government

of the money message procedure may be overly generous or overly broad. I am satisfied

25. See, in particular, pages 14 and 15 of the Academics’ Opinion as follows.

The money message procedure, as currently practised, raises constitutional concerns. In

particular, a salient concern is that to extensive and interpretation of the procedure may

place on justified limits on the capacity of the national parliament to pass legislation

independently of the executive organ of the State, which is a separate constitutional

entity from the legislature and which is subordinate or subject, in many ways, to the

authority of Dáil Eireann in particular. Even in the UK, where constitutional norms are

underwritten and largely based on historical conventions, concerns have arisen at various

times about inappropriate use of the equivalent money resolution procedure unduly

fettering the power of Parliament. Given that Bunreacht na hÉireann protects, in express

terms, the power to make laws in Article 15.2, and gives that power solely and

exclusively to the Oireachtas, there is a real risk that Article 17.2 could be read or applied

excessively to the detriment of that power in a constitutionally problematic way.

The can be no doubt that the government has a very broad power in respect of state

finances and money bills. The question is whether there is any constitutional limit to this

power, as instantiated in Article 17.2. Can it be used in any way, and in any manner?

Can it be elaborated on in the standing orders in any way, shape or form without calling

We think that it cannot — that there must be constitutional limits to the procedure less

did functionally undermine the legislative power of the State and effectively cede it to the

executive. This argument can be made both based on the overall structure and ethos of

the Constitution and by reference to the particular constitutional rules about the

relationship between Parliament and the legislature. In short, the interpretation and

application of this constitutional rule, either in the Standing Orders and/or in

parliamentary practice, cannot be such as to functionally limit or frustrate legislative

powers of the Oireachtas. This would undermine the separation of powers envisaged by

the Constitution, and particularly the stipulation in Article 15.2 that the Oireachtas is the

26. The second matter to be considered then is whether the challenge to the Ceann

Comhairle’s ruling is one that is potentially challengeable by way of judicial review, i.e. is

it justiciable before the courts. That is a much more difficult question because it seems to

me on the basis of Article 15.10 and Article 15.11 that there is a clear issue here in

Each House shall make its own rules and standing orders, with power to attach

penalties for their infringement, and shall have power to ensure freedom of debate, to

protect its official documents and the private papers of its members, and to protect itself

and its members against any person or persons interfering with, molesting or attempting

11 1° All questions in each House shall, save as otherwise provided by this

Constitution, be determined by a majority of the votes of the members present and

The Chairman or presiding member shall have and exercise a casting vote in the

The number of members necessary to constitute a meeting of either House for

the exercise of its powers shall be determined by its standing orders.”

27. The Dáil is, in effect, the master of its own procedures. On the facts of this particular

case, although the initial decision not to allow the motion go forward for debate was as a

result of a ruling by the Ceann Comhairle, that ruling was, in effect, ratified by a

subsequent vote of the Dáil itself. What happened was that the proposed order of

business for today (Wednesday 6 November 2019) was put to a Dáil vote on 5 November

2019. A majority of the Dáil voted in favour of the proposed business, which, of course,

omitted the very motion which is the subject-matter of these proceedings, i.e. the motion

28. There was much debate before me as to what inferences this court should draw from that

sequence of events. In particular, it was suggested by leading counsel on behalf of the

Applicants, Mr. John Rogers SC, that the vote should not be understood as ratifying or in

some way endorsing the view of the Ceann Comhairle. Counsel may well be right on

that—but that is a matter for full hearing—and that is why I am going to allow leave to

apply for judicial review. I will return to this point, however, because it is relevant in

29. So just to summarise my findings in relation to the first question of leave to apply for

judicial review, I am satisfied that there is an arguable case. I emphasise it is only an

arguable case that I need to be satisfied of at this stage. The fact that leave is granted in

no way determines—nor is even indicative of—the ultimate outcome of these proceedings.

30. I am satisfied that there is an arguable case in relation to Article 17.2 of the Constitution.

I am also satisfied that it is arguable that the Ceann Comhairle’s decision may be

justiciable before this Court. Now, having said that, my attention has very properly been

brought to a number of judgments including the judgment in O’Malley v. An Ceann

Comhairle [1997] 1 I.R. 427; the recent judgment in Kerins v. McGuinness [2019] IESC 11;

and the judgment in Callely v. Moylan [2014] IESC 26, [2014] 4 I.R. 112.

31. Each of these judgments, in their own way, emphasises the caution which this court

should exercise in trespassing upon the functions of Parliament and how it runs its

business. But notwithstanding that case law, I think this particular issue is not so clearly

outside the jurisdiction of the court that leave to apply for judicial review should be

32. Mr. Rogers, SC, has brought my attention to the fact that the very issue raised in this

case is a fundamental one. If the Applicants are correct (and I emphasise I am making

no finding in relation to that) and the money message procedure is being abused, that is

a serious matter which has potential knock-on consequences for the effectiveness of

parliamentary representation. Therefore, notwithstanding that body of case law, there is

just enough at this stage to allow an application for judicial review go forward.

33. I also attach some significance to the submission made by Mr. Bradley, SC, on behalf of

the Ceann Comhairle to the effect that the money message procedure, if not subject to

judicial review, is in effect non-justiciable or cannot be challenged anywhere.

34. Mr. Bradley, SC was forced to argue—and this is clearly no criticism of him, but merely

reflects the position adopted by the Ceann Comhairle—that there is no obvious

constitutional check or balance on the potential abuse of the money message procedure

other than by way of an application for judicial review before this court. There is no

obvious procedure whereby, for example, Dáil Éireann can countermand the view of the

35. I simply highlight those factors as indicating that the threshold for leave to apply has

been met. At the risk of belabouring the point, I just want to finish this aspect of the

judgment by saying that all I am doing is granting leave to apply. It is a low threshold,

ordinarily done on an ex parte basis. I am simply allowing the case to go forward.

36. Most applicants in private litigation do not have to go through this procedure and are not

subject to a filtering. So, therefore, there is only so much that can or should be read into

the decision of this court to grant leave to apply for judicial review.

37. The next issue then to be dealt with is the question of interlocutory relief. In a sense that

has become moot in that the time originally allocated for the discussion of the Applicants’

motion to amend Standing Order 179 (which was 4.20 pm this afternoon) has come and

gone. Therefore, there is very little that this court could do at this stage. However, even

if the case had been brought earlier or the timetable had been longer, I would not have

38. I say this principally because I have concerns as to the separation of powers. It seems to

me that an applicant who looks for interlocutory relief in judicial review proceedings must

meet the test as laid down by the Supreme Court in its judgment in Okunade v. Minister

for Justice [2018] IESC 56. Where the relief involves a prima facie or a potential trespass

on the powers of another organ of State, I think a slightly higher threshold must be met

and I do not think that the Applicants in this case have met that threshold. It seems to

me that were this court to have granted an interlocutory injunction, it would have had the

practical effect of rewriting the order paper which was voted upon and passed by a

majority of Dáil Éireann yesterday (5 November 2019). I do not think that this court

should do that on an interlocutory basis. It seems to me that the Dáil had decided what

business it was going to deal with today. That order paper omitted (to the annoyance of

the Applicants) the motion that they wished to debate. But this court cannot overlook the

fact that there has been a vote, a majority vote, by Parliament in favour of that form of

39. Mr. Rogers, SC, may well be correct and that it would be wrong to go further than that

and to read into that vote some form of ratification or endorsement of what the Ceann

Comhairle has done. At bottom, however, what has happened is the Dáil ruled this week

as to what business it would transact today and, in particular, this afternoon. That

schedule consciously or deliberately omits the motion which the Applicants wish to bring

forward. As I say, it would take an exceptional argument to persuade this court that it

has jurisdiction at an interlocutory stage to interfere with that and to direct Parliament to

debate a matter which Parliament itself has voted it will not debate.

40. For that reason, this is not a case where interlocutory relief is appropriate and, therefore,

I refuse to grant any stay in relation to either the conduct of the Parliament’s business or

in relation to the Ceann Comhairle. I think instead that the appropriate way of dealing

41. To that end, what I propose to do is as follows. I propose to list the matter for directions

(I will hear the parties on a precise date but what I am minded to do is to list it as soon

as possible so either on Thursday or Friday of this week). I propose to list it before the

judge in charge of the Judicial Review List who is Mr. Justice Meenan.

42. I would ask the parties, if possible, to agree a realistic timetable for the exchange of, in

the first instance, pleadings and affidavits and, thereafter, written legal submissions.

Once that is in order, Mr. Justice Meenan can direct a trial of the action. I am not

retaining seisin of the case myself, I am not the judge in charge of the list. This is a case

that requires case management and Mr. Justice Meenan can, in all good time, allocate a

This revised note includes quoted extracts from documents and case law referenced in the ex

tempore judgment but not read out in full at that stage due to pressure of time and the

urgency of the case.

Result: Leave to apply for Judicial Review granted, injunction refused

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Smith v An Ceann Comhairle [2019] IEHC 746 (06 November 2019) URL: http://www.bailii.org/ie/cases/IEHC/2019/2019_IEHC_746.html Cite as: [2019] IEHC 746

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