McDowell: Citizen has no right to challenge government

Scofflaw

Not everyone will necessarily be aware that there is a court case currently being heard against the legality of the promissory notes, undertaken by a private citizen, with the claim that the promissory notes were never voted on in the Dáil, and are therefore unconstitutional on the basis that Bunreacht requires all actions involving a charge on public funds to be laid before the Dáil.

It appears, according to Brian Lucey, that McDowell's (first) defence is that the ordinary citizen has no right to challenge acts of the executive:

Coming towards the end of a long day of argument which saw Anne Nolan of the Department of Finance sprung into the witness box as a surprise additional extra, the argument from Michael McDowell ran as follows….The Promissory Notes are a creation of Dail Eireann. David Hall is a citizen. As a mere citizen the state claims that he has no right to in effect act on behalf of the Oireachtas against the Executive. A citizen qua citizen has no role or right to ensure that the two parts act properly.

http://brianmlucey.wordpress.com/2013/01/24/state-argues-in-high-court-that-a-citizen-has-no-right-to-challenge-parliament/#comment-12228

Prima facie, this is an outrageous claim, and the comments' section on Lucey's blog are duly outraged. Unfortunately, as I've posted there...

Conspiracy theory and proper outrage aside, I suspect McDowell has a good case here. There really is no provision in Bunreacht for the citizen to challenge executive actions of the government, unless we count Article 6.1. On the contrary, there is an explicit statement that the executive is responsible to the Dáil:

“28.4.1° The Government shall be responsible to Dáil Éireann.”

Note that McDowell is not challenging the right of ordinary citizens to challenge acts of the Oireachtas on the basis of constitutionality - he is making the point that the executive (the government, the cabinet) is responsible to the Dáil, not to the people directly.

As far as I can see, that’s a very solid foundation for McDowell’s case. In a sense, we should perhaps thank him for highlighting the appalling centralisation of power in the State – we know that the Dáil is, in effect, thanks to the Whip system and the executive’s control of state appointments, subservient to the executive, and McDowell’s case should highlight to the public exactly why this is so incredibly dangerous – we have a situation where the government is constitutionally responsible only to a body which it already dominates.


cordially,
Scofflaw

dvpower

Scofflaw wrote: »

“28.4.1° The Government shall be responsible to Dáil Éireann"

.... hardly precludes the Government being responsible to others too.

Amirani

dvpower wrote: »

.... hardly precludes the Government being responsible to others too.

Question of semantics really. While there is no "only" to describe Government's responsibility to a single entity, the lack of an explicit reference to any other entity in a similar manner would perhaps suggest that no other such responsibility exists, naturally precluding a legal challenge.

I'm not completely in tune with constitutional law but I'd imagine such a right to challenge the Government would need to be specifically outlined. Obviously the notion of a resident alien or a foreign body challenging the constitutionality of an Irish Government decision wouldn't happen, but why not? Surely anybody could make such an claim if the current legal challenge is deemed constitutional, that is non-specified entities have a right to challenge the executive branch?

Scofflaw

NiallSparky wrote: »

Question of semantics really. While there is no "only" to describe Government's responsibility to a single entity, the lack of an explicit reference to any other entity in a similar manner would perhaps suggest that no other such responsibility exists, naturally precluding a legal challenge.

I'm not completely in tune with constitutional law but I'd imagine such a right to challenge the Government would need to be specifically outlined. Obviously the notion of a resident alien or a foreign body challenging the constitutionality of an Irish Government decision wouldn't happen, but why not? Surely anybody could make such an claim if the current legal challenge is deemed constitutional, that is non-specified entities have a right to challenge the executive branch?

Obviously it's the Court that will rule on this, but that does seem to me to be quite possibly the case here. One would immediately assume that the citizen has locus standi - an interest in the actions of the executive - but even that is apparently not clear-cut in Ireland:

Rules as to standing derive from the common law and also from statute. Listeners will be well familiar with many of the decisions involving constitutional challenges. In such cases, the primary rule requires the challenger to establish that the impugned provision deprives him or her or may deprive him or her of a particular constitutional right.

Source:
Procedural Obstacles to Public Interest Litigation Colm Mac - FLAC

I can see no constitutional right that the individual citizen is being deprived of here. David Hall may well run foul of other established precedent here:

It is not possible for a litigant to argue another person’s case. This was demonstrated in Norris v Attorney General8. The Supreme Court had no difficulty entertaining Mr Norris’ challenge to legislation prohibiting homosexual acts, but he was refused permission to advance arguments based on marital privacy in support of his contention that the legislation was unconstitutional. The court invoked the idea of jus tertii which prohibits litigants from asserting the rights of third parties in support of their case where the argument is not relevant to the actual position of the litigant.

Ibid.

Here, the citizen is in fact asserting the rights of a third party - the Dáil. Whatever one may think of McDowell as a politician (and I very much enjoyed not voting for him), he's a very cunning lawyer, with an excellent understanding of the likely reactions of Irish Courts.

cordially,
Scofflaw

Hootanany

So he was wrong

dvpower

NiallSparky wrote: »

Question of semantics really.

In common with almost any interpretation of law.

If Government are only responsible to the Dail, are normal ministerial orders also included in this too?

Also, a citizen bringing a case doesn't ask the Government to be answerable to that citizen, they are just asking the court to determine if a government decision is legal - it shouldn't matter who brings it to the court - isn't he just a messenger?

yore

Scofflaw wrote: »

Not everyone will necessarily be aware that there is a court case currently being heard against the legality of the promissory notes, undertaken by a private citizen, with the claim that the promissory notes were never voted on in the Dáil, and are therefore unconstitutional on the basis that Bunreacht requires all actions involving a charge on public funds to be laid before the Dáil.

It appears, according to Brian Lucey, that McDowell's (first) defence is that the ordinary citizen has no right to challenge acts of the executive:



http://brianmlucey.wordpress.com/2013/01/24/state-argues-in-high-court-that-a-citizen-has-no-right-to-challenge-parliament/#comment-12228

Prima facie, this is an outrageous claim, and the comments' section on Lucey's blog are duly outraged. Unfortunately, as I've posted there...

Conspiracy theory and proper outrage aside, I suspect McDowell has a good case here. There really is no provision in Bunreacht for the citizen to challenge executive actions of the government, unless we count Article 6.1. On the contrary, there is an explicit statement that the executive is responsible to the Dáil:

“28.4.1° The Government shall be responsible to Dáil Éireann.”

Note that McDowell is not challenging the right of ordinary citizens to challenge acts of the Oireachtas on the basis of constitutionality - he is making the point that the executive (the government, the cabinet) is responsible to the Dáil, not to the people directly.

As far as I can see, that’s a very solid foundation for McDowell’s case. In a sense, we should perhaps thank him for highlighting the appalling centralisation of power in the State – we know that the Dáil is, in effect, thanks to the Whip system and the executive’s control of state appointments, subservient to the executive, and McDowell’s case should highlight to the public exactly why this is so incredibly dangerous – we have a situation where the government is constitutionally responsible only to a body which it already dominates.


cordially,
Scofflaw

Number 1, McDowell is doing his job.

I think he's right anyway. Why should the ordinary person be permitted to claim to represent the Oireachtas? If he want's to do that, let him run for election.

Does anyone know if this man has the money to pay the expenses if he loses his case? Or tell us if he can be held liable?

I don't think it's appalling at all. We have elections. We elect people to run our country. Use your vote wisely and then let them run it. That's the ideal. If eejits get elected, then the eejits that vote for them deserve it.

I'm off for a few pints and a drive home with my permit



(Only kidding of course....just a reference to example of idiocy)

Victor

Scofflaw wrote: »

It appears, according to Brian Lucey, that McDowell's (first) defence is that the ordinary citizen has no right to challenge acts of the executive

I'm not sure I agree. The executive could decide to declare war, attempt to or actually bring about a state of war, but it wouldn't have the right to - that is for the Dáil.

Death and Taxes

Would the case taken over the delay in the Donegal bye- election not indicate that the Government is indeed answerable to the citizen, since they lost the case?

AlekSmart

yore wrote: »

Number 1, McDowell is doing his job.

I think he's right anyway. Why should the ordinary person be permitted to claim to represent the Oireachtas? If he want's to do that, let him run for election.

Does anyone know if this man has the money to pay the expenses if he loses his case? Or tell us if he can be held liable?

I don't think it's appalling at all. We have elections. We elect people to run our country. Use your vote wisely and then let them run it. That's the ideal. If eejits get elected, then the eejits that vote for them deserve it.


I'm off for a few pints and a drive home with my permit

(Only kidding of course....just a reference to example of idiocy)

In a strange kind of way,this case is rendolent of the many "Freemen" video-clips which increasingly feature on Social Media websites...

However Yore's reference to eejitery is highly relevant in a country which sought to portray itself as possessing the best educated young population in Europe.

This fact,no doubt statistically proven by various examination result tables,but is most certainly disproven by the calibre of Public Representative continually elected and re-elected by the same highly-educated electorate to represent them.

Micheal McDowell,love or loathe him,remains one of the most astute Legal brains in Ireland and mentally agile with it.

Could this case I wonder represent a "Smiking-Gun" in terms of "Government,For the People" as opposed to "Government versus The People"

It appears to me,that it demands that observers come down off the fence,where most Irish voters prefer to sit...:)

Scofflaw

Victor wrote: »

I'm not sure I agree. The executive could decide to declare war, attempt to or actually bring about a state of war, but it wouldn't have the right to - that is for the Dáil.

Sure - and the case being taken here is that it's for the Dáil to vote on anything involving a charge on public funds. The defence being offered is that it's also for the Dáil to defend its own Constitutional rights, not for the citizen to do so on their behalf.

cordially,
Scofflaw

Scofflaw

WileyCoyote (Accelleratii Incredibus!) wrote: »

Would the case taken over the delay in the Donegal bye- election not indicate that the Government is indeed answerable to the citizen, since they lost the case?

In that case a specific constitutional right of the individual citizen - representation - was being denied.

cordially,
Scofflaw

ArmaniJeanss

Is this not one of those cases where McDowell as a barrister could have ended up representing the other side (i.e. the private citizen taking the case).

So we don't necessarily know his 'opinions' on the matter, but he is just fulfilling his obligation to make the case for the side he has been assigned to.

Scofflaw

ArmaniJeanss wrote: »

Is this not one of those cases where McDowell as a barrister could have ended up representing the other side (i.e. the private citizen taking the case).

So we don't necessarily know his 'opinions' on the matter, but he is just fulfilling his obligation to make the case for the side he has been assigned to.

Sure - criticising McDowell would be entirely misguided here. Undoubtedly it will be done, though!

cordially,
Scofflaw

ArmaniJeanss

Scofflaw wrote: »

Sure - criticising McDowell would be entirely misguided here. Undoubtedly it will be done, though!

cordially,
Scofflaw

With respect creating the thread title as 'McDowell - Citizen has no right to challenge government' isn't exactly condusive to stopping people being 'misguided'.

Its snappier than 'random assigned barrister : Citizen has no right.....' or 'McDowell fulfils obligation as assigned brief on prom notes case' admittedly.

Scofflaw

ArmaniJeanss wrote: »

With respect creating the thread title as 'McDowell - Citizen has no right to challenge government' isn't exactly condusive to stopping people being 'misguided'.

Its snappier than 'random assigned barrister : Citizen has no right.....' or 'McDowell fulfils obligation as assigned brief on prom notes case' admittedly.

That's a fair point, but I claim the traditional defence of the headline writer, which is that I wanted to get people to read the thread...

slightly ashamed,
Scofflaw

Mr.Micro

When I read the thread title and the statement of the stalwart McDowell, I was about to express my outrage at his lofty superior opinion, then I read on..... and he has a point I guess.

Mr.Micro

Scofflaw wrote: »

That's a fair point, but I claim the traditional defence of the headline writer, which is that I wanted to get people to read the thread...

slightly ashamed,
Scofflaw

The tabloids would be proud of that headline lol.

dermot_sheehan

Jus tertii, or the rule you can only sue for a violation of your rights and not those of a third party is the argument.

That the infringement of the rights of the Oireachtas can only be enforced by the Oireachtas (or one of its members arguably).

I would disagree with this argument however.

The right to a parliamentary democracy must be an individually enforceable right since under the Constitution the Oireachtas cannot fetter or unconstitutionally delegate or fetter its authority or powers (Cityview Press v. Anco [1980] I.R. 381).

Since the Oireachtas can not fetter or delegate its authority, a person adversely affected by its unconstitutional delegation should be able to bring proceedings.

Whether Mr. Hall satisfies this test as a citizen and tax payer is the issue.

Unfortunately I don't think he has standing just on this basis

P_1

His argument makes a good case to be fair.

Broadly speaking, we as an electorate vote people into the Dail to make the decisions on our behalf and because there's no power of recall within this voting system, there's nothing we, as citizens, can do about the decisions they make on our behalf once they have been voted in.

Now, should the citizen concerned have challenged the Dail, rather than the government for them not demanding their right to a debate on the issue?

BlaasForRafa

Could a case be made that the oireachtas, by not asserting its rights has been negligent?

Of course, it would probably need another court case to prove it.

Scofflaw

dermot_sheehan wrote: »

Jus tertii, or the rule you can only sue for a violation of your rights and not those of a third party is the argument.

That the infringement of the rights of the Oireachtas can only be enforced by the Oireachtas (or one of its members arguably).

I would disagree with this argument however.

The right to a parliamentary democracy must be an individually enforceable right since under the Constitution the Oireachtas cannot fetter or unconstitutionally delegate or fetter its authority or powers (Cityview Press v. Anco [1980] I.R. 381).

Since the Oireachtas can not fetter or delegate its authority, a person adversely affected by its unconstitutional delegation should be able to bring proceedings.

Whether Mr. Hall satisfies this test as a citizen and tax payer is the issue.

Unfortunately I don't think he has standing just on this basis

Hmm. OK - looking at that case:

Article 15.2 provides that “the sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.”

The most significant case on the interpretation of Article 15.2 is Cityview Press v AnCO [1980] IR 381, which dealt with a challenge to a training levy on companies; this article was discussed (as support for a challenge to a statute which gave the Minister considerable freedom in setting up the levy), and it was held that –

In the view of this Court, the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other hand, if it be within the permitted limits - if the law is laid down in the statute and details only are filled in or completed by the designated Minister or subordinate body – there is no unauthorised delegation of legislative power.

So the question there would seem to be whether the Dáil has in effect delegated the capacity to legislate to the Minister, or whether the legislation already passed by the Oireachtas is sufficiently detailed that the Minister is merely giving effect to the principles and policies in the legislation. Looking at the Credit Institutions (Financial Stability) Act 2008, which first gave the Minister the power to offer financial support to the banks, we find:

6.— (1) As and from the relevant date, the Minister may provide financial support in respect of the borrowings, liabilities and obligations of any credit institution or subsidiary which the Minister may specify by order having regard to the matters set out in section 2 , the extent and nature of the obligations (including the degree of control over possible abuse of the financial support) undertaken and which might be undertaken in the future and the resources available to him or her in that behalf.

(2) In subsection (1) a reference to borrowings, liabilities and obligations includes borrowings, liabilities and obligations to the Central Bank or any person.

(3) Financial support shall not be provided under this section for any period beyond 29 September 2010, and any financial support provided under this section shall not continue beyond that date.

(4) Financial support may be provided under this section in a form and manner determined by the Minister and on such commercial or other terms and conditions as the Minister thinks fit. Such provision of financial support may be effected by individual agreement, a scheme made by the Minister or otherwise. Without prejudice to the Minister’s discretion as to such conditions, all financial support provided shall so far as possible ultimately be recouped from the credit institution or subsidiary to which the support was provided.

First off, that seems sufficiently detailed in its delegation to the Minister - the creation of the promissory notes is simply the creation of a specific scheme, and I don't see that it's really possible to argue the Dáil has improperly delegated the power to legislate - the creation of a promissory notes scheme is simply a scheme, and well within the principles and policies provided in the legislation.

Section (3) there seems exciting, until one realises that the Act was amended in 2010 - I've quoted the original because it was the legislation in force at the time of the issue of the promissory notes. This appears to be the amended version:

6.— “6.—(1) As and from the relevant date, and in accordance with this section, the Minister may provide financial support directly or indirectly to any current or former credit institution or current or former subsidiary of a credit institution or former credit institution which the Minister may specify by order having regard to—

(a) the matters set out in section 2,

(b) the extent and nature of the obligations (including the degree of control over possible abuse of the financial support) undertaken and which might be undertaken in the future, and

(c) the resources available to him or her for that purpose.

(1A) For the purposes of this section, the provision of indirect financial support includes the provision of financial support to a person (in particular, a company whose objects include the provision of such financial support) in connection with financial support provided or to be provided by that person to—

(a) a credit institution or former credit institution or current or former subsidiary of a credit institution or former credit institution, or

(b) credit institutions (including former credit institutions and current or former subsidiaries of credit institutions or former credit institutions) generally.

(1B) The Minister may establish a company incorporated under the Companies Acts whose objects include the provision of financial support or operating as a parent undertaking of one or more credit institutions to whom the Minister has provided financial support.”.


(4) Financial support may be provided under this section in a form and manner determined by the Minister and on such commercial or other terms and conditions as the Minister thinks fit. Such provision of financial support may be effected by individual agreement, a scheme made by the Minister or otherwise. Without prejudice to the Minister’s discretion as to such conditions, all financial support provided shall so far as possible ultimately be recouped from the credit institution or subsidiary to which the support was provided.

“(4A) Where financial support is to be provided pursuant to a scheme under subsection (4), the Minister may, at the Minister’s discretion, specify by order a period or periods during which credit institutions may incur borrowings, liabilities and obligations in respect of which financial support may be provided.”.

Which allows for any period. Again, though, I don't see that the constraints provided by the legislation are so loose that the Dáil has delegated the power of legislation to the Minister.

Both versions do contain this point:

(5) Where the Minister proposes to make a scheme under subsection (4)—

(a) he or she shall cause a draft of the proposed scheme to be laid before each House of the Oireachtas, and

(b) he or she shall not make the scheme unless and until a resolution approving of the draft has been passed by each such House.

Were the promissory notes as a scheme laid before the House? This is from the first of April 2010, when the first of the promissory notes were being announced:

Deputy Joan Burton: The financial announcements yesterday by Anglo Irish Bank included a statement that the Government had issued an €8.3 billion promissory note, IOU, to the bank. The Labour Party has agreed to the arrangements as outlined by the Tánaiste but no detailed advice has been made available to us as the Opposition in regard to under what legislation the €8.3 billion promissory note——

An Ceann Comhairle: The observation applied to Deputy Kenny applies also to Deputy Burton.

Deputy Joan Burton: If the Ceann Comhairle will bear with me, I am making a point. We have accepted the arrangements and will not vote against them now——

An Ceann Comhairle: I do not disagree with the merit of the question but I am saying the opportunity will arise later to ask it.

Deputy Joan Burton: Momentous decisions have been taken in our name. I am asking the Tánaiste——

An Ceann Comhairle: All of those points can be made during statements on banking.

Deputy Joan Burton: ——if the Government will undertake to give more time to this issue when the Dáil returns. A commitment of €8.3 billion, signed without the Minister for Finance, Deputy Brian Lenihan, telling us yesterday that it was going into the Anglo Irish Bank accounts, payable at €830 million a year for the next ten years——

An Ceann Comhairle: Deputy Burton, this is not contemplated on the Order of Business.

Deputy Joan Burton: We were not told that. This is a milestone.

An Ceann Comhairle: This is not contemplated at all.

Deputy Joan Burton: Will the Government agree to come back to this and to allocate more time——

An Ceann Comhairle: The Deputy will have an opportunity to ask that question later on——

Deputy Joan Burton: ——to the bank discussion after Easter?

An Ceann Comhairle: ——if we could proceed to statements.

Deputy Joan Burton: We are agreeing to the order but will the Government say now that it will give the Opposition more information about the deal done with Anglo Irish Bank that appeared in the bank’s accounts yesterday?

http://debates.oireachtas.ie/dail/2010/04/01/unrevised1.pdf

A lot of this discussion revolves around the announcement two days previously, on Tuesday 30th March, of a tranche of promissory notes worth €8.3b, and whether the Minister had told the Dáil in good time of the proposed arrangement before making the announcement. As far as I can see, though, the discussion on the Tuesday in the Dáil encompasses a vote which might be said to give effect to the scheme, or is certainly being treated that way. This is Caoimhghín Ó Caoláin on a Motion before the House that certain sections in the legislation regarding financial support for the banks be allowed stand, despite a proposal they be struck out:

Deputy Caoimhghín Ó Caoláin: We do not agree to this motion on banking and we object to the Order of Business proposition. Once again, the Government is treating the Dáil with contempt. It is asking us to rubber-stamp a proposition as part of which we will see further billions of euro of taxpayers’ money poured into a zombie bank in the first instance and into the other banks following that. This is an outrageous proposition because in return what are we getting? We are not getting the opportunity to make any intervention in respect of the setting of interest rates, which we have seen rise once again only this week. We do not have the opportunity——

http://debates.oireachtas.ie/dail/2010/03/30/unrevised1.pdf

The vote - which as far as I can see, is "No. 2, a8, motion re Stability of Banking System" on the order of business, naturally went in the government's favour, and whatever was proposed to be struck out was kept.

Apologies this is so convoluted - it's often very difficult to tell what the Dáil is actually voting on from the transcripts provided. It's possible, however, that this is a vote, at least by proxy, on the promissory notes, and certain Deputies certainly act as if it is. This statement by Rabbitte after the vote on Tuesday 30th certainly suggests that while the promissory notes may not have been agreed to specifically, they have certainly been agreed to by the Dáil in principle:

Let us not fool ourselves. What has been forced through this House by the Government on Tuesday ultimately rebounds to the Exchequer and dramatically increases the sovereign debt being imposed on this and future generations. Let us not fool ourselves about promissory notes, European Central Banks IOUs, special purpose vehicles and off-balance sheet accounting. I understand why the Government does not want this disaster reflected in the national accounts. However, there is no escaping the reality — the bank rescue will impose a huge debt burden on the shoulders of every taxpayer in the land and will virtually double the national debt.

"Forced through this House" is, I suspect, simply hyperbole, meaning only that the vote was held and went in the Government's favour.

cordially,
Scofflaw

hatrickpatrick

I have to say Scoffy, from the tone of your OP it sounds like you don't actually in fact approve of such unaccountability, if indeed McDowell is correct. Perhaps I still don't know you well enough, but I am rather surprised

cyberhog

Scofflaw wrote: »

It appears, according to Brian Lucey, that McDowell's (first) defence is that the ordinary citizen has no right to challenge acts of the executive:

If the Dáil challenged the government, what would McDowell's defence be then?

Scofflaw

cyberhog wrote: »

If the Dáil challenged the government, what would McDowell's defence be then?

Good question, but sadly, I doubt we'll ever know.

cordially,
Scofflaw

RandomName2

Whilst I agree with the sentiment of the thread thesis, I can't help feel that support of it within the thread may be somewhat disingenuous; owing to the fact that many who agree with the OP sentiments have themselves systematically argued in defence of representational democracy to the disadvantage of direct democracy.

Whilst not knowing the ins and outs of the case involved I would suspect that McDowell is right, albeit for the wrong reasons.

Scofflaw

RandomName2 wrote: »

Whilst I agree with the sentiment of the thread thesis, I can't help feel that support of it within the thread may be somewhat disingenuous; owing to the fact that many who agree with the OP sentiments have themselves systematically argued in defence of representational democracy to the disadvantage of direct democracy.

Whilst not knowing the ins and outs of the case involved I would suspect that McDowell is right, albeit for the wrong reasons.

I have no problem in arguing for representative democracy, but not for a broken system of representative democracy. The issue here for me is not so much that McDowell is probably correct, but that he's highlighting the lack of effective control over the executive - something a direct democracy can also suffer from.

cordially,
Scofflaw

AlekSmart

Scofflaw wrote: »

I have no problem in arguing for representative democracy, but not for a broken system of representative democracy. The issue here for me is not so much that McDowell is probably correct, but that he's highlighting the lack of effective control over the executive - something a direct democracy can also suffer from.

cordially,
Scofflaw

Given our somewhat itinerant levels of turn-out in various elections/referenda over our Republics history I suppose it could be argued that Ireland represents a very good illustration of an indirect democracy.

Mind you,this thread could,without too much difficulty,segway neatly into a discussion of just how good the principle of "Democracy",as we traditionally regard it,actually is ?

Death and Taxes

The High Court has dismissed the case brought by Mr.Hall stating he has no standing to bring the case.

seamus

Yeesh. Say what you like about McDowell as a politician, but he's a top-class solicitor.

I actually hope Mr. Hall has his expenses covered by the state, as I believe the case was worth taking in the interests of the people.

Though it looks like a few independent TDs are planning on picking up the torch, so this probably isn't over.

antoobrien

WileyCoyote wrote: »

The High Court has dismissed the case brought by Mr.Hall stating he has no standing to bring the case.

http://www.breakingnews.ie/ireland/citizen-has-no-legal-standing-to-take-promissory-note-case-court-rules-583111.html

However, Mr Kearns has ruled that he was not the man to take this challenge as he does not have the legal standing and as a taxpayer he has not been prejudiced any more than anyone else.

He has found the action should have been and could still be brought by a member of the Dáil.

Victor

seamus wrote: »

Yeesh. Say what you like about McDowell as a politician, but he's a top-class solicitor.

O rly?

http://www.lawlibrary.ie/members/barrister.asp?barID=2515

Leftist

the most disappointing aspect of this story is the news that mcdowell hasn't disappeared from the face of the planet as I had previously assumed. They are probably the most dispicable citizens in the country. to a man.

Godge

Leftist wrote: »

the most disappointing aspect of this story is the news that mcdowell hasn't disappeared from the face of the planet as I had previously assumed. They are probably the most dispicable citizens in the country. to a man.

Has McDowell got a split personality or are there two of him?

Coyler

Asking the obvious question; how does this compare to other developed countries? I'm under the impression that Canada, US and the UK do grant standing to private groups or citizens but I'm open to correction and some education on this matter.

Scofflaw

Update - four TDs joining the case, while McDowell submits that the case is no longer important:

Four TDs - Clare Daly, Luke Flanagan, Mick Wallace and Joan Collins - want to be joined to businessman David Hall's challenge to the Government's payment of promissory notes, including a €3 billion payment scheduled for late next month, the Supreme Court heard today.

...

The State contended the Supreme Court could not address the other issues raised by Mr Hall because those issues had not been decided in the High Court, counsel said. The State also submitted, "under no circumstances", could the Supreme Court address the issue of the constitutionality of the legislation under which the promissory note payments were made.

While the issue of payment of public monies was "of course extremely important", the High Court had ruled Mr Hall had no legal standing to raise that, he added.

Mr McDowell also said it was "fairly obvious" matters had changed with the passage of the Irish Bank Resolution Corporation Act 2013 overnight providing for the winding up of IBRC (formerly Anglo) and the "reconfiguration" of the liabilities of the State to that bank. Negotiations in Frankfurt "would or could have a very significant bearing" whether Mr Hall's case became moot in its entirety, counsel said. In all those circumstances, the case did not deserve priority, he argued.

http://www.irishtimes.com/newspaper/breaking/2013/0207/breaking25.html

cordially,
Scofflaw

Scofflaw

Full judgement in respect of David Hall's challenge - dismissal on the basis of lack of locus standi:

Ultimately I have come to the conclusion in the instant case that the plaintiff is endeavouring to assert a ius tertii, that is to say, to advance a case or argument which more properly should have been brought, and may yet still be brought, by an individual member or members of Dáil Éireann. This is not a case where there is no other suitable plaintiff can be found as the developments towards the end of the hearing amply demonstrate. No member of Dáil Éireann is precluded from mounting the very challenge brought by the plaintiff in these proceedings and nothing in this judgment should be taken or construed as indicating what view the Court might take of the merits of such a claim if and when so brought. Secondly, the plaintiff has not shown that he himself has suffered any prejudice which puts him in a different position from any other taxpayer in this country. Thirdly, the delay in bringing the application must be afforded particular weight in this case having regard to the solemn undertakings entered into by the Executive which at this point have been operational for almost three years.

Thus, for all the reasons outlined above, the Court must dismiss the plaintiff’s claim on the basis that he lacks locus standi to bring this particular challenge.

http://courts.ie/Judgments.nsf/bce24a8184816f1580256ef30048ca50/e2b6b6536395fc7480257b0c00412486?OpenDocument

cordially,
Scofflaw

antoobrien

The supreme court has blocked the request by the 5 independent TDs to join the appeal to this case.

The reasons given for this is that they could only join the case this late in exceptional circumstances.

The court ruled today there would have to have been exceptional circumstances, such as the risk of an injustice, to allow the deputies to become part of the case at this late stage

There is no risk of an injustice in this case as there is nothing stopping the TDs from bringing their own case.

nesf

antoobrien wrote: »

There is no risk of an injustice in this case as there is nothing stopping the TDs from bringing their own case.

This seems reasonable and fair.