High Court fixes urgent hearing to decide if Seanad is validly constituted

The president of the High Court has fixed an urgent hearing next week of a major constitutional action over whether or not there is a validly constituted Seanad.

If the Seanad is invalidly constituted as of now with 49 out of 60 members, and that is not corrected urgently, significant criminal legislation, including a law permitting the continuation of the non-jury Special Criminal Court, will lapse on June 29th, High Court president Mr Justice Peter Kelly was told.

The case arises from a dispute between Senators and the Taoiseach over whether the Seanad, currently comprising 49 elected members, is validly constituted and entitled to sit and pass legislation.

The Taoiseach has argued, that until 11 nominees of a taoiseach nominated by the 33rd Dail are appointed to the Upper House, the Seanad is not validly constituted.

The Taoiseach has said he resigned from the office on February 20th last and is currently carrying out his duties in line with Article 28.11 of the Constitution pending the election of a taoiseach by the Dail under Article 13.1.1.

In a letter of June 10th last, he told the plaintiffs, because the 33rd Dail has not elected a taoiseach, he cannot advise the President to fix a day for the first meeting of the new Seanad and, until a newly elected taoiseach appoints 11 members to the Seanad, the Seanad is not properly composed and cannot pass legislation.

The Taoiseach said the plaintiffs had raised an important point of law that needed to be clarified “due to the fact that necessary legislation may need to be enacted in the coming weeks”.

Ten elected Senators, Ivana Bacik, Victor Boyhan, Gerard Craughwell, Annie Hoey, Sharon Keogan, Michael McDowell, Rebecca Moynihan, Ronan Mullen, Marie Sherlock and Mark Wall, have brought the proceedings against An Taoiseach, Ireland and the Attorney General.

On Tuesday, John Rogers SC, with Eileen Barrington SC and Hugh McDowell BL, for the 10, said they had been hoping for a political solution to the “conundrum” but, despite correspondence between the sides, that has so far not been forthcoming and they want a legal solution.

The current situation is that political events will either crystallise with the appointment of a new taoiseach on June 27th “or they won’t”, counsel said.

He outlined that the case concerns interpretation of Article 18 of the Constitution concerning the composition of the Seanad and election of Senators.

Unless there is a resolution of the significant difference of opinion between his clients and the Taoiseach, it is necessary this matter be tried because of the potential consequences if a taoiseach finds himself not in a position towards the end of next week to appoint senators, counsel said.

Conleth Bradley SC, for the defendants, agreed the matter was urgent and said his side would facilitate the earliest possible hearing.

In their action, the Senators want various declarations including that, since the election of the 49 Senators by April 3rd last, there has been no constitutional inhibition on the Taoiseach advising the President to fix a day for the first meeting of the Seanad and that the nomination of 11 senators by a taoiseach is not a constitutional prerequisite to the sitting, meeting or functioning of the Seanad or to the passing of legislation by both Houses of the Oireachtas.

Mr Justice Kelly said the case raised major constitutional issues and he would direct a hearing next week before a three judge High Court.

He himself could not be part of that court as the legislature has deemed, because he turns 70 on Wednesday, he had reached “statutory senility” and must retire, he remarked.

Mr Rogers said he wanted to pay tribute to the judge for his “outstanding service”. His reputation was as approachable, getting business done and dealing with things “with style, colour and enthusiasm”, counsel said.

The judge “uplifted us and this branch of government”, there was no issue of senility, “everyone knows the capacity of your mind, your greatest feature is your knowledge and you did difficult things in the interests of justice which must have been at a price”, he added.