The decision of four TDs to go to the High Court to seek to overturn a decision of the Ceann Comhairle is by any yardstick the nuclear option.
The separation of powers between the parliament and the courts is a fundamental principle of our democracy so any court will be very wary of intervening in the running of the Oireachtas.
So just why did four Opposition TDs feel the need to go to court yesterday?
TDs Bríd Smith, Paul Murphy, Gino Kenny and Richard Boyd Barrett had sought to bring forward a bill for debate in the Dáil yesterday, but the Ceann Comhairle ruled their bill was in conflict with the Constitution and therefore was ruled out of order. Felt they were left with no other option, they sought a judicial review yesterday as well as an injunction to reverse the Ceann Comhairle’s decision.
What did their bill seek to do?
The TDs are complaining that the Government has effectively blocked more than 50 Opposition bills and their bill sought to change Dáil Standing Orders to help remove what they see as a “Government veto”.
So what was the problem?
The row in the Dáil stems from a long-running dispute over the use by the Government of a procedural device called the “money message” to block opposition Bills.
Under the Constitution, only the Government can bring forward Bills which have a potential financial impact on the State’s finances. Therefore, opposition Bills which pass their first vote in the Dáil must be approved by the provision of a “money message” by the Government before they can proceed.
But in light of its minority position in the Dáil, the Government stands accused of using the “money message” device to block over 50 opposition bills.
How did their bill seek to overcome that?
The TDs are claiming the Government has abused the money message mechanism because Dáil Standing Orders are more restrictive than the Constitution and said their bill will remove the ability of the Government to block a bill on the grounds of “potential indirect expenditure”.
Why did the Ceann Comhairle reject their bill?
In the Dáil on Tuesday, Mr O’Fearghail said he decided to rule the bill out of order based on legal advice that it was in contravention of the Constitiution.
What happened then?
Amid lengthy and heated exchanges, the TDs vented their fury at Mr O’Fearghail who they accused of acting beyond his remit. He was eventually forced to suspend the sitting for 10 minutes but ultimately the Dáil voted on the Order of Business, with a majority siding against the four TDs and with the Government.
So what happened in Court?
The four TDs went to the High Court seeking a judicial review but also an injunction from the Court to overturn the Ceann Comhairle’s decision.
Did they win?
Yes and no. They won the right to a judicial review on the use of the money-message by Government and Judge Garrett Simons commenting that were it found the Government were abusing the mechanism to block Opposition bills unfairly, then that would be a very serious matter.
But they were turned down on their demand for an injunction with the Judge saying he was loathe to intervene in the running of the Dáil, given the separation of powers.
What happens now?
The case is listed for this morning and is to be expedited for a quick hearing.