Cork council vacancy: New legislation needed - legal expert

The current legislation governing the filling of vacancies on local authorities needs to be amended to cover a situation that has arisen in Cork caused by the election to the Dáil of Mick Barry of Anti Austerity Alliance-People Before Profit., a legal adviser has told Cork City Council.

Mr Barry was elected to the Dáil as a Cork North Central constituency TD in February when he ran on the AAA-PBP platform, thereby creating a vacancy in the Cork North Central ward on Cork City Council, where he was elected on the AAA ticket in 2014.

However, efforts by the AAA-PBP to nominate a successor, Fiona Ryan, have been stymied by the Labour Party who argued that, under the Local Government Act 2001, the AAA-PBP does not have nomination rights as Mr Barry was elected on an AAA ticket.

Labour has cited Section 19.3 A of the Local Government Act 2001 which states a casual vacancy on a council in the case of a party candidate must be filled by the co-option of a person nominated by the same registered political party who nominated the person vacating the seat for election.

A different section of the Local Government 2001 Act, Section 19.3 B applies in the case of non-party candidates where the seat is filled according to the council's standing orders which, in the case of Cork City Council, is the next placed candidate in the poll - in this case Labour's Catherine Clancy.

The co-option had been due to take place on March 29th last when AAA-PBP nominated Fiona Ryan to replace Mr Barry in the Cork North Central ward, but councillors voted by 14 votes to 13 to defer a decision pending the receipt of legal advice on the matter.

Not covered

Now, Cork City Council director of services, corporate and external affairs, Paul Moynihan, has presented advice from the council's legal adviser who said the situation, which has arisen as a result of Mr Barry's election to the Dáil, is not covered by the existing legislation.

According to the report presented to councillors, the AAA was a registered political party when it nominated Mr Barry to run in the 2014 local elections, but it cancelled its registration in August 2015 when it merged with People Before Profit and it ceased to be a political party on August 28th, 2015.

The new entity came into being on October 6th last when People Before Profit was amended on the register of political parties to become Anti Austerity Alliance-People Before Profit - and Mr Barry was a member of this particular party when he was elected to the Dáil and stood down from the council.

The council’s legal adviser has rejected Labour’s argument that Mr Barry’s seat should be filled by the next placed candidate, Labour’s Catherine Clancy, as Mr Barry was “not a non-party candidate” when he won the seat in 2014 standing for the AAA, which was a registered party at the time.

However, the legal adviser has advised that, given the AAA no longer exists as a registered political party, it cannot nominate Mr Barry’s successor, while the AAA-PBP is similarly precluded from nominating his successor as it was not a registered entity at the time of the local elections in 2014.

“In the circumstances, I am of the view that the present lacuna (gap) in Section 19 of the Local Government Act 2001 would be best addressed by way of amending primary legislation” said the law officer in the report presented by Mr Moynihan.

Issue adjourned

Following a debate on the report, councillors voted by 15 votes to 14 to seek their own independent legal advice on the matter, and the issue of co-opting Mr Barry’s replacement has been adjourned until the next meeting on April 25th.

Speaking afterwards to The Irish Times, Mr Barry said “Cork City Council cannot keep kicking the can down the road indefinitely on this issue. The people of the city’s North Central ward deserve their full council representation and are unlikely to tolerate a long delay.

“In my opinion, the Anti Austerity Alliance-People Before Profit have not only an overwhelming moral case but also a very strong legal case for having nomination rights here and we will now be stepping up our campaign for natural justice to be done here.

“Clearly, there is a gap in the legislation, but equally clearly the spirit or the intent of those who framed the legislation is for political continuity to be provided - which can only be done here by accepting the nominee of Anti Austerity Alliance-People Before Profit.”