The Anti Austerity Alliance-People Before Profit (AAA-PBP) has also provided a legal opinion to city councillors which suggests that the city’s law agent has taken a “narrow view” of the law governing the filling of such casual vacancies, and sets out two possible solutions.
The filling of the seat was deferred for the second time last Monday after councillors were presented with legal advice from the council’s law agent advising that they had no legal entitlement to proceed with the co-option of AAA-PBP nominee Fiona Ryan to fill the vacancy arising out of the election of former AAA councillor Mick Barry to the Dáil.
The deadlock has arisen because of a Labour Party challenge to the validity of AAA/PBP’s nomination of Ms Ryan.
It pointed out that Mr Barry was nominated to run for the council in 2014 by the AAA, which has since de-registered as a political party and merged with PBP.
Labour argued that because the seat was initially won by a candidate who was a member of a political party that has since deregistered, the AAA-PBP has no right under section 19 of the Local Government Act to co-opt a nominee to fill the vacancy.
The city law agent’s advice to councillors was that the lacuna, or gap, in section 19 of the act exposed by this situation should be addressed by way of amending primary legislation — a process which could take months, if not years.
Councillors voted on Monday, by a margin of just one, to seek their own independent legal advice, stalling the co-option for at least another two weeks.
However, the AAA-PBP’s legal advice is that if a “narrow technical view” of the legislation is taken, then a lacuna exists.
Mr Barry said rather than let this lacuna prevent the filling of the seat, the council could change its own standing orders to allow it to fill the vacancy, and act in the spirit of the law, which is for the people to have their full democratic representation.
A barrister has given a second possible solution, and suggested that councillors could take a “purposive view” of the legislation and consider the intent of those who drew up the legislation.
“It seems to me that the intention of the Oireachtas was that where a seat was won by a person of a particular political philosophy, his or her replacement should be from the same political stable, as close as possible as may be,” the barrister said.
“If the seat could be ‘taken’ by a majority or different political grouping, that would be to pervert the mandate given by the electorate.
“The only workable interpretation is that AAA-PBP as the clear ‘successor in title’ party to AAA be held entitled to make the nomination.”
Mr Barry and Ms Ryan said they are prepared to wait for councillors to be provided with, and consider, their own independent legal advice.
Mr Barry said the people of the North Central ward need full representation and should not be forced to wait indefinitely.
He declined to be drawn on what the AAA-PBP might do to secure the seat if councillors defer the co-option again.
The matter is due before Cork City Council again on April 25.