Thread by @gavreilly

Hearing against the Ceann Comhairle is now being pursued by four TDs - @RBoydBarrett and @Ginosocialist have been name as applicants, alongside @bridsmithTD and @paulmurphy_TD. The latter three are in Court 9 waiting for business to begin, scheduled for 2:30pm.

The four TDs are seeking a judicial review of the Ceann Comhairle's decision not to allow them move a motion changing Dáil rules about 'money messages' (explained in video in previous tweets). If granted, question arises of whether motion can then be moved in Dáil this afternoon

It looks, therefore, like the first question for Mr Justice Garrett Simons is to establish whether the Ceann Comhairle's actions in running the business of the Dáil are subject to review by the Courts in the first place…

Hearing has begun. Counsel for the four TDs is outlining the bones of the case. Cites an example of a previous Bill sponsored by Smith - the Petroleum and Other Minerals Development (Amendment) Bill 2018 - which was rendered subject to a money message. Argues none was needed.

Counsel for the TDs, John Rogers SC, reads the text of the new proposed Dáil rule ('standing order') and how it would potentially allow bills *currently* requiring a money message to be reconsidered by the Ceann Comhairle.

Justice Simons says justiciability is the first hurdle…

Counsel says CC's decision to block amendment falls foul of Article 15.10. "It's not for an officer of the House to decide that a particular legislative or SO proposal is unconstitutional… the most fundamental thing that the House embraces is the fixing of its own rules."

Rogers SC: "Nothing in the Standing Orders permits an adjudicative power to the Ceann Comhairle in the amendment of Standing Orders."

Judge says if the Ceann Comhairle is alleged to have breached Standing Orders, is that not equally an internal matter for the Dáíl to consider?

Rogers SC asserts that "it cannot be that the proposal be denied ventilation by a unilateral decision of the Ceann Comhairle." Later; "This is an extreme circumstance… [TDs] have been precluded, at short notice, from advancing their motion… there is no other way to voice this."

Judge teasing out what other remedy might have been available to the TDs, short of coming to the High Court. Could the Ceann Comhairle be removed from office? Yes, says Rogers, but that's not a remedy - it doesn't return control of today's time slot back to the TDs concerned

Rogers: "This is not a case about a technicality. This is a case about elected parliamentarians being denied the opportunity to change the rules whereby they do business in parliament. That is, by definition, not technical or not serious."

Rogers is now presenting a transcript of yesterday's Dáil business, including the exchanges about this issue.

Rogers focusses on a question from @BrendanHowlin: "What are we voting on if there is no motion down for Private Member's business?" - i.e. if the Solidarity-PBP motion can't be moved, what business would be considered in its time slot? He says this is an important question.

@BrendanHowlin Judge: If I were to make an order that the 4 TDs be allowed to move this motion in the Dáil at 4:20pm, would that not fly in the face of the Dáil having voted by majority to adopt a schedule of business for today? Wouldn't it mean the Court dictating what Dáil business should be?

@BrendanHowlin Rogers SC: The court can't interpret that as being a vote against the motion. That's the critical thing.

Judge: My concern is the separation of powers. A majority of the Dáil adopted this order of business… Wouldn't this involve the Court overriding a vote of the house?

@BrendanHowlin Judge hypothesises that he would be inserting an additional item into the Dáil order of business, overriding the Dáil's own decision around what business to transact today.

Rogers: Ceann Comhairle acted ultra vires, and anything following resulted from that ultra vires decision.

@BrendanHowlin Rogers SC: "The vote on the order of business is ambiguous, in that it doesn't as a resolution determine that the order not be taken… it isn't a decision […] you should be feel obliged to be persuaded by."

Conleth Bradley SC now rising on behalf of the Ceann Comhairle.

@BrendanHowlin Bradley SC: My view is that this all falls within Article 15.10 of the Constitution [which provides that the Houses of the Oireachtas set their own rules]. "This is a collateral challenge to what Article 15.10 allows for."

Bradley argues that the Kerins and O'Brien rulings confirm the courts' reluctance to intervene in the inner workings of Dáil Éireann - and, in effect, that the courts are only prepared to do so where a case involves an outside member of the public

Bradley: "This is beyond the purvue of the court in terms of the established jurisprudence, including the established jurisprudence established by Kerins and O'Brien."

Argues Rogers is asking the Court to interpose in today's Oireachtas business, as passed by the Dáil yesterday.

[This is the text of Article 15.10 of the Constitution, to which Bradley is referring]

Bradley SC, for the Ceann Comhairle, continuing: This does also seem to be a challenge to the 'money message' procedure.

Judge poses: Suppose a hypothetical government is abusing the money message procedure. Is there any remedy?

Bradley SC: There is no such remedy.

Judge: Ours is a system of checks and balances. What is the constitutional check on a hypothetical government abusing the procedure?

Bradley: If there's a complaint about how the Govt is or isn't giving money messages, that's not a matter for the CC. That's a matter for the Govt

Judge says he is "mindful of the enormity" of what he's being asked, which he sees as two questions: firstly whether he has jurisdiction to review decisions of the Ceann Comhairle, and secondly what relief might be available to the TDs if he does so

Bradley SC points out Solidarity-PBP have another Dáil slot in January 2020.

He says the TDs are "effectively asking the Court to interpose itself in the intramural workings and machinery of Dáil Éireann - in my respectful submission, Judge, I say that's entirely misconceived."

Judge tells the Court he does intend to make a ruling on question one (i.e. whether he has the jurisdiction to even grant a judicial review of the Ceann Comhairle's decision in the first place) this afternoon, unless an adjournment is sought beforehand

Court has briefly adjourned so that Counsel for the Ceann Comhairle can take instruction on whether he will need to submit additional materials

Back in session. Counsel for the TDs needs to correct himself first; he presented the judge with an incorrect version of the Dáil schedule. The schedule formally adopted by the Dáil contained a two hour slot for Solidarity-PBP but did not prescribe the business to be taken.

Rogers, counsel for the TDs: Yesterday's vote didn't address whether the Ceann Comhairle could remove a motion from the order paper. Had TDs voted to reject the proposed schedule of business, it still would not have overturned or addressed the Ceann Comhairle's decision.

Rogers: I don't accept at all that this is non-justiciable. On the question of interim relief: I'm saying, and I've opened my case on the premise that this is an extreme circumstance. This is about the basic rules not being complied with by an office holder, not by the House.

Rogers: The Court was premising its earlier questions on the basis that the House (Dáil Éireann has a whole) had made the decision to adopt a schedule of business. That's not the case, he says: the House couldn't either or overturn the Ceann Comhairle's decision.

Judge says he will return with his decision at 4:15. Court rises.

The two-hour time slot originally allotted to the Solidarity-PBP TDs was due to begin at 4:20pm.

Court back in session…

Justice Garrett Simons says he WILL grant leave for a judicial review into whether the Ceann Comhairle acted beyond his powers in blocking a motion to change the Dáil's rules, but will not make any interim order amending the Dáil's schedule for today

Justice Simons says he is satisfied there is an arguable case that the Government's interpretation of the money message procedure is 'overly generous or overly broad'

Judge: If not subject to judicial review, the money message procedure is in effect non-justifiable and can't be challenge elsewhere. The position adopted by the Ceann Comhairle is such that there is no obvious [alternative] check on the use of the money message procedure

However the Judge will not grant an injunction to allow the TDs' motion be heard in the meantime, this afternoon, as he cannot overlook the fact that TDs themselves voted yesterday afternoon to adopt a schedule which omitted that motion - the Court will not amend that schedule

*non-justiciable

Judge has granted an order offering leave to apply for judicial review. The issue of timetable for full hearings to be discussed before the High Court tomorrow morning. Costs reserved.