Court rejects argument that Seanad could legislate without Taoiseach’s nominees

A first meeting of a new Seanad can only lawfully take place with its full membership of 60, comprising 49 elected members and 11 nominees of an incoming taoiseach, the High Court has ruled.

In a detailed judgment on constitutional issues of “exceptional public importance”, the three-judge court rejected arguments by 10 elected senators the Seanad can meet and legislate with 49 elected members .

In proceedings against An Taoiseach, Ireland and the Attorney General initiated earlier this month, the 10 disputed arguments by the respondents the Seanad cannot meet and pass laws until an incoming taoiseach nominates 11 further Senators.

The case was heard urgently last week due to concerns, if a taoiseach was not elected by the Dáil last weekend to nominate 11 Senators, important legislation might lapse at midnight on Monday, including provisions of the Offences Against the State Act.

On Monday, High Court President Ms Justice Mary Irvine, Mr Justice Denis McDonald and Ms Justice Niamh Hyland noted, while the election of Micheál Martin as Taoiseach and his appointment of 11 Senators meant it was no longer a “live” issue whether the Seanad could lawfully sit with 49 members, the issue could arise again.

Because the matter was “undoubtedly of exceptional public importance”, the court had decided to determine the issues raised.

The case centred on interpretation of provisions of the Constitution, particularly article 18. Article 18.1 provides the Seanad “shall be composed of 60 members, of whom 11 shall be nominated members and 49 shall be elected members”. Article 18.8 provides the first meeting of the Seanad after a general election “shall take place on a day to be fixed by the President on the advice of the Taoiseach”.

In its 62-page judgment, the court said article 18.1 “clearly and unambiguously” means the Seanad “must be composed of 60 members, 11 of whom are nominated by an incoming Taoiseach and 49 of whom are elected”. This arises from the wording of article 18.1 itself, the other provisions of article 18 and a consideration of articles 5,6 and 15, it said.

The plaintiffs’ “audacious” argument essentially seeks to reformulate the Seanad as one with “significantly less” Senators and missing an entire category of membership, it said. Their argument there could be a “time lag” between elected and nominated members essentially meant it was constitutionally permissible for a 49-member Seanad to carry out the functions of the Seanad for the entire life of a Dáil, currently capped at five years.

This is contrary to the “very clear” meaning of article 18.8 which requires the first meeting of the Seanad, being a body composed of 60 Senators, 49 elected and 11 nominated, takes place on a day fixed by the President as advised by the Taoiseach. The meeting being convened is not a first meeting of the “elected” members of the Seanad but rather a first meeting of the Seanad itself .

Seanad Éireann does not exist until constituted as required by article 18.1 and is thus not entitled to sit before the Taoiseach has nominated the 11 members provided for in article 18.1, it held.

It said the dissolution of the Dáil sets the clock ticking for both the Dáil and Seanad election and the election in each House triggers the first meeting of both. The date for the first meeting of the Dáil is prescribed but the Taoiseach is given a discretion in respect of fixing of a date for the first meeting of the Seanad, possibly because the process of constituting it by election and nomination is “more complex and time sensitive” that for the Dáil.

The plaintiffs were wrong to describe what has occurred since March 29th, when the members of the outgoing Seanad ceased to hold office, as a “constitutional lacuna”, it said. The problem engendered by the delay in nominating an incoming taoiseach did not relate to constitutional interpretation but was rather concerned with the absence of political consensus within the Dáil.

While understanding the plaintiffs’ genuine concern, without a functioning Seanad, it would be impossible to enact emergency laws in moments of great crisis, the court did not believe such considerations can be allowed to influence the interpretation of the Constitution.

The court is obliged “to interpret the Constitution by reference to its terms” and the constitutional machinery provided the solution – nomination of a new taoiseach by the Dáil. If an emergency of sufficient gravity arose to trigger article 24, which provides for an accelerated legislative process in times of emergency, it was “unthinkable” elected representatives would not be able to set aside their differences and take the necessary action to nominate a taoiseach.

The 10 plaintiffs are elected Senators Ivana Bacik, Victory Boyhan, Gerard Craughwell, Annie Hoey, Sharon Keogan, Michael McDowell, Rebecca Moynihan, Rónán Mullen, Marie Sherlock and Mark Wall. Costs issues will be decided on a later date.