Order of Business

It is proposed to take No. 8a, Immigration, Residence and Protection Bill 2010 — Financial Resolution; No. 8b, motion re statement of Estimates for the Houses of the Oireachtas Commission; No 8g, motion re by-election for Donegal South-West; No. 8c, motion re by-election for Donegal South-West; No. 8d, motion re by-election for Dublin South; No. 8e, motion re by-election for Waterford; No. 8f, motion re by-election for Donegal North-East; No. 3, Local Government (Mayor and Regional Authority of Dublin) Bill 2010 — Second Stage (resumed), to adjourn at 1 p.m., if not previously concluded; and No. 4 Civil Law (Miscellaneous Provisions) Bill 2010 — Order for Second Stage and Second Stage.

It is proposed, notwithstanding anything in Standing Orders, that Nos. 8a and 8b shall be decided without debate; and in the case of 8g and in the event that any of the other motions for by-elections are being moved, Nos. 8g, 8c, 8d, 8e and 8f shall be debated together and decided separately, the proceedings shall, if not previously concluded, be brought to a conclusion after 60 minutes, and the speeches shall be confined to a Minister or Minister of State and to the main spokespersons for Fine Gael, the Labour Party and Sinn Féin, who shall be called upon in that order, who may share their time, and which shall not exceed 15 minutes in each case.

There are two proposals to put to the House. Is the proposal for dealing with Nos. 8a and 8b agreed to?

Before we deal with any business here, I should like confirmation from the Taoiseach that arising from the judgment of the High Court, yesterday, which is very clear in its ruling——

That is the second item, so perhaps we might dispose of the first.

I understand that. We are now in a position where the Attorney General has not given clear advice in the event of the Government winning an appeal to the Supreme Court. We are in the throes of preparation for a budget and fiscal plans at a time special needs hours have been reduced and home help care is under pressure, and the Government is going to appeal to the Supreme Court on the definition of an inordinate amount of time——

Deputy please, these matters can be dealt with under the second item.

——at a considerable cost to the taxpayer, when the Government was given a clear option last May, in a Bill published by Deputy Hogan, for the filling of casual vacancies arising in the Dáil to the effect that a time limit of six months should be imposed, which was constructive——

Deputy Kenny, please, these matters can be dealt with under the second item.

——objective and realistic. The Government refused to do that and voted it down. It was then ordered by the High Court, effectively, to hold this by-election.

A Cheann Comhairle, this is unacceptable.

The point is that this appeal to the Supreme Court will not only cost the taxpayer money, but anybody in this House is capable of defining what an inordinate delay is, in this context. The Bill proposed by Deputy Hogan last May——

I ask Deputy Kenny for his co-operation in the matter. I have given him some latitude but he is out of order on the Order of Business.

I am not out of order on the Order of Business.

Deputy Kenny is a long time Member of the House and knows the procedure.

I am not out of order on the Order of Business. As stated, before I agree to any of the proposals, I want my question answered.

A Cheann Comhairle, can you ask that Deputy Kenny's microphone be turned on?

He is out of order.

We cannot hear Deputy Kenny.

I recommend to the Government and Taoiseach that this decision not be appealed to the Supreme Court and that the Bill produced last May by Fine Gael be introduced, which Bill allows for orderly, realistic and objective legislation——

Deputy, please. I have allowed the Deputy to go on for some time when I should not.

——which would not require the Government to be involved in this mess whereby the High Court has effectively ordered it to hold a by-election and in respect of which it now intends to cost the taxpayer more money by going to the Supreme Court for a definition that any man in the street could give, namely, six months is the period within which all vacancies should be filled.

Deputy, please.

What is going on here is that——

The Deputy is showing disrespect for the Chamber.

——the Government by virtue of this appeal to the Supreme Court is prolonging its stay in Government. It is refusing the people their mandate in respect of other by-elections pending, namely, Waterford, Dublin South and Donegal North-East.

I ask the Deputy to co-operate with the Chair. I am putting the question. We need to take a decision on this matter.

I would like a response from the Taoiseach in regard to the reasons his Government has accepted the recommendation of the High Court and now wants to appeal that decision to the Supreme Court, which appeal will delay other legal actions being taken in respect of the other two by-elections.

We will be debating the matter when a decision on the Order of Business has been disposed of.

This is wrong and costly——

The Deputy is completely out of order.

——and is another example of blatant incompetence by this Government——

Resume your seat.

——which wants to put its party before country——

Deputy Kenny, resume your seat please.

——and prolong its stay in office.

Deputies

Hear, hear.

I call Deputy Gilmore.

Likewise, before the Labour Party can agree the Order of Business proposed by the Taoiseach, which sets out a sequence for the taking of a number of motions for the moving of writs in respect of outstanding by-elections, we want a response from the Taoiseach in regard to the Government's decision to appeal yesterday's High Court decision in respect of the Donegal South-West by-election.

I will explain the reason this is significant in the context of the Order of Business. My explanation relates to the sequence in which this is presented to us. There are four by-elections——

I must remind the Deputy that we will be discussing these matters after the Order of Business.

You cannot have the Order of Business until this has been determined. That is the point.

This is the Order of Business.

A Cheann Comhairle, please allow me——

Some Members will get to discuss it. The Independents have been excluded again.

Please allow me to explain.

It is a great democracy.

The Government has presented us with a list of by-elections on the Order of Business. The Government is asking us to deal with——

That matter is catered for under the second proposal.

I am asking for a response from the Taoiseach before agreeing anything on the Order of Business, which I am entitled to do.

I understand that the Government has decided to appeal yesterday's High Court decision to the Supreme Court. Yesterday, the Taoiseach said that the holding of by-elections is a matter for the House. We know from what we have read in the newspapers that it is the Government's intention to hold the by-election in Donegal South-West and to oppose the holding of the by-elections in the other three constituencies. If the Government appeals the decision of the High Court to the Supreme Court it will prevent, I expect, the possibility of legal challenge to its refusal to hold the remaining three by-elections. The issue which will be——

Deputy Gilmore is promoting large-scale debate on this matter on the Order of Business.

The Ceann Comhairle might listen.

There are other times when these points can be made.

They cannot be made on the Order of Business. Standing Order 26 does not accommodate this type of arrangement that is being proposed.

How long will it stand?

I am not proposing——

(Interruptions).

I will allow a brief supplementary from Deputy Gilmore.

I do not wish to be at odds with the Ceann Comhairle but he should listen and show some respect to Members——

I have been more than patient.

——of the House when we are making valid points. The point I am making relates directly to the Order in which we are expected to deal with these matters, as presented by the Taoiseach.

The Government is presenting a formula which will allow the Donegal South-West by-election to go ahead, in respect of which it has no choice because the High Court has stated that by-election must go ahead, but which is designed to stop the other three by-elections from going ahead. It is a manifestly political ruse by Government to deprive the Dáil from making a decision to hold the other three by-elections.

Like Deputy Kenny, before we agree the Order of Business I want clarification from the Taoiseach in regard to what is the Government's intention with regard to the appealing of yesterday's High Court decision.

Deputy Ó Caoláin.

Regardless of what response the Taoiseach gives to the questions posed, the fact remains that what the Government is now doing is utilising the judicial process to thwart the democratic process, as reflected upon but not specifically stated in the judgment delivered by the President of the High Court yesterday. I ask that those entrusted with responsibility for same would take note of what the Government is doing in this instance. There is no substantive basis for the appeal Government is presenting. The process is about thwarting the opportunity of the people of Dublin South, Waterford and Donegal North-East to pass judgment on this Government's performance at an early opportunity. It is doing so at the taxpayers' expense. Regardless of what answer the Taoiseach gives those are the facts of the matter. I would appeal——

We wish to bring this matter to a conclusion as quickly as possible.

——to the Judiciary not to accommodate this appeal which has no basis in law.

The Government has decided, having heard the advices of the Attorney General, to appeal yesterday's decision of the High Court——

——because the judgment gives rise to importance constitutional issues regarding the separation of powers and the boundaries of the court's role in the important matter of elections and its power to make declarations that have the effect of requiring Government to exercise its voting power in a particular manner, and the need for certainty on the legal position with respect to future by-elections. An important issue has arisen here.

The importance of an appeal is underlined by the fact that yesterday's judgment is the first time the courts have interpreted the Constitution to give rise to an obligation of this nature. In the case of Dudleyv. An Taoiseach, the High Court merely held that there was an arguable case that the Government was under an obligation to move the writ for a by-election which had been outstanding for almost 14 months. When Senator Doherty received leave from the High Court in July of this year, it had been 11 months since former Deputy Pat the Cope Gallagher had vacated his seat.

As regards the Government's constitutional obligations, the Government is appealing the decision for the reasons outlined on advice of the Attorney General. The Government has a constitutional obligation to do so. Like other litigants before the courts, it is fully entitled to await the determination of the matter by appeal. Pending the outcome of the appeal to the Supreme Court the Government decision remains unchanged with regard to the other Dáil vacancies that currently exist. In the interests of ensuring we respond in an appropriate manner to that which emerged yesterday from the High Court, the Government will proceed with the holding immediately of the Donegal South-West by-election.

I am putting the question.

Can I ask——-

No. The matter has been dealt with. I am putting the question.

A Cheann Comhairle, Deputy Kenny was on his feet before you.

I am putting the question and ask for the co-operation of Members.

(Interruptions).

Deputies, I am asking for the co-operation of the House.

A Cheann Comhairle, Deputy Kenny was on his feet before you.

I am putting proposal No. 1. We will then deal with proposal No. 2 in regard to the by-election issue.

A Cheann Comhairle, Deputy Kenny was on his feet before you.

(Interruptions).

I am chairing the proceedings. I will allow a brief supplementary from Deputy Kenny and will then put the question on proposal No. 1.

No, you cannot do that.

Turn on Deputy Kenny's microphone.

The Taoiseach has responded to the matter I raised and that raised by Deputy Gilmore and Deputy Ó Caoláin. This is a matter for the House. The Minister for the Environment, Heritage and Local Government is not here——

Again. He is hiding.

——again. He sat beside the Taoiseach yesterday and then walked out before it came to the crucial matter.

A Deputy

They are all e-mailing.

He is not here. It is his responsibility to table this in the House. This is the Bill published on 25 May by Deputy Hogan——

Deputy Kenny, we cannot have a full-scale debate on this on the Order of Business——

A Cheann Comhairle, I am not taking it——

——and I am not going to allow it. I will adjourn the House if you do not cease and resume your seat.

——from you.

Deputy, you are going off on a tangent that is not relevant to what we mentioned.

A Cheann Comhairle, I have just a couple of years on yourself——

Yes, we can share some experiences.

——and you are treading very close to constitutional issues here. This Bill——

It is the Order of Business and Standing Order 26 is quite specific on these matters about what is allowed to be debated.

I will finish my point in less than two minutes.

This Bill was published to give the people of every constituency in our electorate the right of full representation in the Dáil. It was voted down by the Government, which could have prevented the mess it is now in, where the High Court has given a very clear instruction of which the Government had to take cognisance. Unless there is crystal clear evidence from the Attorney General to the Government that he had no doubt but that an appeal would succeed in the Supreme Court, this course of action should not be followed. The Taoiseach has a legal background.

Deputy Kenny, resume your seat.

He understands that the delay in this being heard in the Supreme Court——

Deputy Kenny, will you resume your seat please?

——prevents the Minister for the Environment, Heritage and Local Government——

Deputy Kenny, if you do not resume your seat I will suspend the sitting.

——and the Dáil dealing with the holding of the by-elections in Waterford——

You are not co-operating with the Chair.

——Dublin South and Donegal North-East.

Deputy Kenny, I am suspending the sitting for ten minutes.

This is a matter of constitutional importance.

Sitting suspended at 10.55 a.m. and resumed at 11.05 a.m.

I am now putting the question.

A Cheann Comhairle——

(Interruptions).

No, Deputy; we have finished. Is the proposal for dealing with Nos. 8a and 8b without debate agreed to? Na Teachtaí atá ar thaobh na tairisceana aibridís “Tá”; na Teachtaí atá ina coinne aibridís “Níl”. Sílim go bhfuil an cheist rite.

Deputies

Vótáil.

On a point of order——

The question is carried. On a point of order, yes.

The question is not carried, a Cheann Comhairle.

It certainly is carried.

It is not carried.

It is a heavy load, a Cheann Comhairle.

On a point of order, a Cheann Comhairle, as I was about to finish my short contribution——

This is not Iran, you know. It is a democracy.

It might not be Iran, but we need——

The Ceann Comhairle is not chairing the Fianna Fáil Parliamentary Party at the moment. He is chairing this House.

The Government has decided to appeal the judgment of the High Court——

A Cheann Comhairle——

——on the question of the Donegal South-West by-election to the Supreme Court.

It is not up to the Taoiseach to tell Deputy Kenny he is out of order.

Deputy Kenny, the vote has been called. The bells are ringing.

He was told four times.

It is none of the Taoiseach's business.

We must now proceed to the vote.

Question put: "That the proposal for dealing with 8a and 8b be agreed to."
The Dáil divided: Tá, 75; Níl, 68.

  • Ahern, Bertie.
  • Ahern, Dermot.
  • Ahern, Michael.
  • Ahern, Noel.
  • Andrews, Barry.
  • Andrews, Chris.
  • Ardagh, Seán.
  • Aylward, Bobby.
  • Blaney, Niall.
  • Brady, Áine.
  • Brady, Cyprian.
  • Brady, Johnny.
  • Browne, John.
  • Byrne, Thomas.
  • Calleary, Dara.
  • Carey, Pat.
  • Collins, Niall.
  • Conlon, Margaret.
  • Connick, Seán.
  • Coughlan, Mary.
  • Cowen, Brian.
  • Cregan, John.
  • Cuffe, Ciarán.
  • Curran, John.
  • Dempsey, Noel.
  • Devins, Jimmy.
  • Dooley, Timmy.
  • Finneran, Michael.
  • Fitzpatrick, Michael.
  • Fleming, Seán.
  • Flynn, Beverley.
  • Gogarty, Paul.
  • Gormley, John.
  • Hanafin, Mary.
  • Harney, Mary.
  • Healy-Rae, Jackie.
  • Hoctor, Máire.
  • Kelleher, Billy.
  • Kelly, Peter.
  • Kenneally, Brendan.
  • Kennedy, Michael.
  • Killeen, Tony.
  • Kitt, Michael P.
  • Kitt, Tom.
  • Lenihan, Brian.
  • Lenihan, Conor.
  • Lowry, Michael.
  • McEllistrim, Thomas.
  • McGrath, Mattie.
  • McGuinness, John.
  • Mansergh, Martin.
  • Moloney, John.
  • Moynihan, Michael.
  • Mulcahy, Michael.
  • Nolan, M.J.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • O’Brien, Darragh.
  • O’Connor, Charlie.
  • O’Dea, Willie.
  • O’Donoghue, John.
  • O’Flynn, Noel.
  • O’Hanlon, Rory.
  • O’Keeffe, Edward.
  • O’Rourke, Mary.
  • O’Sullivan, Christy.
  • Power, Peter.
  • Power, Seán.
  • Roche, Dick.
  • Sargent, Trevor.
  • Scanlon, Eamon.
  • Smith, Brendan.
  • Treacy, Noel.
  • White, Mary Alexandra.
  • Woods, Michael.

Níl

  • Barrett, Seán.
  • Behan, Joe.
  • Breen, Pat.
  • Broughan, Thomas P.
  • Bruton, Richard.
  • Burke, Ulick.
  • Burton, Joan.
  • Costello, Joe.
  • Byrne, Catherine.
  • Carey, Joe.
  • Clune, Deirdre.
  • Connaughton, Paul.
  • Coonan, Noel J.
  • Coveney, Simon.
  • Crawford, Seymour.
  • Creed, Michael.
  • Creighton, Lucinda.
  • Deasy, John.
  • Deenihan, Jimmy.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • English, Damien.
  • Enright, Olwyn.
  • Feighan, Frank.
  • Flanagan, Charles.
  • Flanagan, Terence.
  • Gilmore, Eamon.
  • Hayes, Brian.
  • Hayes, Tom.
  • Hogan, Phil.
  • Howlin, Brendan.
  • Kehoe, Paul.
  • Kenny, Enda.
  • Lynch, Ciarán.
  • Lynch, Kathleen.
  • McCormack, Pádraic.
  • McEntee, Shane.
  • McGinley, Dinny.
  • McGrath, Finian.
  • McHugh, Joe.
  • McManus, Liz.
  • Mitchell, Olivia.
  • Morgan, Arthur.
  • Noonan, Michael.
  • Ó Caoláin, Caoimhghín.
  • Ó Snodaigh, Aengus.
  • O’Donnell, Kieran.
  • O’Dowd, Fergus.
  • O’Keeffe, Jim.
  • O’Mahony, John.
  • O’Shea, Brian.
  • O’Sullivan, Maureen.
  • Penrose, Willie.
  • Perry, John.
  • Quinn, Ruairí.
  • Rabbitte, Pat.
  • Reilly, James.
  • Ring, Michael.
  • Sheahan, Tom.
  • Sheehan, P.J.
  • Sherlock, Seán.
  • Stagg, Emmet.
  • Stanton, David.
  • Timmins, Billy.
  • Tuffy, Joanna.
  • Upton, Mary.
  • Varadkar, Leo.
  • Wall, Jack.
Tellers: Tá, Deputies John Cregan and John Curran; Níl, Deputies Emmet Stagg and Paul Kehoe.
Question declared carried.

We move to item No. 2. Is the proposal——

On a point of order, a Cheann Comhairle, you moved to the vote after the resumption of the House without giving an opportunity to either Deputy Kenny or me, both of whom were offering. I had an issue I wished to raise with you, Sir, in respect of the reply the Taoiseach gave to the House to the questions we asked earlier. The Taoiseach said the issue being appealed to the Supreme Court related to the separation of powers. I had wished to ask the Taoiseach to clarify to which separation of powers he was referring. Was he referring to the separation of powers as between——

Deputy, that is not a point of order.

It is a point of order.

Would you please listen to the point of order?

Deputy Gilmore——

The Order of Business is controlled by Standing Order 26.2.

I have a question.

It is quite explicit on what is allowable and what is not.

It is out of date.

I have a question.

If we need to change that the Committee on Procedure and Privileges is the avenue through which to do that.

Only one side can change it.

Let us move on.

I have a question for you, a Cheann Comhairle, and I would like you to listen to it. The Taoiseach said the issue being appealed related to the separation of powers. I had wished to ask the Taoiseach if that was the separation as between the Oireachtas and the Judiciary since the holding of by-elections is a matter for the Oireachtas. Were you, Sir, informed by the Government that it was its intention to appeal to the Supreme Court a matter relating to the separation of powers between the Oireachtas and the Judiciary? There is also an issue about the separation of powers as between the Oireachtas and the Government.

It is for Government.

The issue of the holding of by-elections is a matter for the House and is not a matter for the Government. If the Government——

That is the issue.

Yes, that is the issue.

That is the issue.

That is the issue.

Deputy Gilmore——

That is the issue.

Deputy Gilmore——

The point is that any appeal——

Deputy Gilmore, please——

——of that decision should be a matter for the House——

Deputy Gilmore, could I have your co-operation?

——and not for the Government.

Deputy Gilmore is not a party to it.

We are moving on to proposal No. 2.

The House was not sued.

Is the proposal for dealing with——

A Ceann Comhairle, let the Taoiseach respond.

If the Deputy wants me to uphold the right of the Oireachtas in regard to this matter, that is precisely why we need to appeal it to the Supreme Court.

That should be our decision, not the Government's decision. It is a matter for the House.

Deputy Gilmore, will you resume your seat please.

(Interruptions).

Deputy Gilmore, resume your seat.

It should be our decision, not the Government's.

I am now putting the question.

Deputy Gilmore is not in the case.

Question, "That the proposal for dealing with Nos. 8g, 8c, 8d, 8e and 8f be agreed to," put and declared carried.

You are not entitled to stand up there and make a decision in the way you have done it.

As I have explained to the Deputy, the Order of Business is controlled by Standing Order 26.

I want to talk about something new now.

Under Standing Order 26 I cannot allow a full-scale debate on the issues the Deputy wishes to debate. I do not mind. There are other ways to do it but the Deputy will have to find the other ways and not use the Order of Business. The Deputy must realise that. The control of the House is dominated and dictated by the Standing Orders set out and agreed by the Committee on Procedure and Privileges. I cannot change that.

We cannot either.

I have to implement them.

The Ceann Comhairle made a decision unilaterally from the Chair in respect of No. 2. I wish to make a point on No. 2.

I put the question to the House.

Yes, and the Ceann Comhairle would not listen to any point of order or reason.

The Deputy is not co-operating and he is being very unfair to other Members.

The Ceann Comhairle is bulldozing his way through——

I am not bulldozing my way; I am implementing Standing Orders. That is what I am doing.

The Ceann Comhairle will not listen to any point of view. I am supportive of the Donegal South-West by-election being held. The Chair has decided on No. 2 about which I want to raise a number of points of order.

The Minister for the Environment, Heritage and Local Government who has responsibility for this is not here. He should be here. I want to save the Irish taxpayer serious money.

The Deputy should be brief before we conclude and move on.

I offer the Taoiseach in the spirit of constructive progress a copy of our Bill, which was published in May this year by Deputy Phil Hogan, namely, the Electoral Representation (Amendment) Bill. This would allow for the business of the House to be conducted by itself and for the filling of all casual vacancies within a six-month period. If the Taoiseach decides to come in with his own Bill next week, I will facilitate him. There is no need to go to the Supreme Court for a definition of "an inordinate delay". We can adjudicate on that here ourselves. All casual vacancies should be decided within a six-month period.

Can I please have the Deputy's co-operation?

If the Taoiseach and the Government want to prolong their own stay in office by making an appeal to the Supreme Court, which will prevent legal action being taken by anybody else in respect of pending by-elections in other constituencies, that speaks for itself. It is an attempt to use court time to have a longer stay in a government, which is doomed.

It is an important constitutional point.

God help the Oireachtas if Deputy Kenny ever gets over to this side of the House.

The Deputy will have to find another way to have a debate on this. There are other ways.

I have a straight question. The Taoiseach has asked for constructive suggestions. Is he prepared to accept this Bill or to come in with his own next week to allow the House to fill all casual vacancies within a six-month period? If so, we will not have any further row about this.

We will have a debate on this matter as we move along.

One debate——

We will have a debate on the matter later. I will suspend the House if the Deputy does not co-operate. I call Deputy Gilmore.

Clearly, the decision of the High Court yesterday was that the Government has acted unreasonably in holding off on, and preventing, the by-election from being held.

It did not say that.

If Deputy Gilmore wishes to develop a debate on this matter, he should not do so on the Order of Business.

I am asking a question about legislation. The House can decide by legislation what is a reasonable period of time within which to hold a by-election. Deputy Kenny referred to the Bill that he has presented. There is also a report of all-party committee, which recommended to this House that by-elections should be held within a specified period of time. Without troubling the Supreme Court with this, the House can decide by legislation what is a reasonable period of time. The reality is the Government parties are going to the Supreme Court in order to string this out and in order to avoid holding the other three by-elections so that they can stay in office for longer than they are wanted by the people.

Can I answer that, although I am trying to find a strain of coherence in what has been said?

First, writs were tabled to hold by-elections. We then had the leader of the Labour Party saying it is very important that the powers of the Oireachtas be confirmed in regard to the holding of by-elections——

That is not what I said.

——which is precisely one of the issues that now has to be dealt with by the Supreme Court to bring certainty to future by-elections.

Then we had the leader of the Fine Gael Party who suggested we should bring in a Bill and not hold by-elections until six months after its enactment, which is longer than the undertaking I have given regarding the other two by-elections. If the Deputy can try to figure out what he is doing, he can give us a shout.

If that is the way to run——

I ask Deputy Kenny to resume his seat.

If that is the way the Taoiseach runs his Cabinet, it is no wonder the country is in the state that it is in.

Deputies

Hear, hear.

The Chair is on his feet.

I never thought that this Government would show such cowardice in facing the people.

I am suspending the House for ten minutes.

Sitting suspended at 11.25 p.m. and resumed at 11.35 p.m.