A constitutional impasse?
Sir, – In response to the piece “Oireachtas can pass laws in public interest without Taoiseach’s Seanad nominees” by Oran Doyle and Tom Hickey (Opinion & Analysis, March 26th), which argued that the Oireachtas can pass laws in the public interest without the Taoiseach’s Seanad nominees in place, while a lawyer should often welcome the discovery of a constitutional loophole, it is difficult not to resent the sudden discovery of this apparent loophole to meet what are ultimately political ends. – Yours, etc,
Sir, – Oran Doyle and Tom Hickey take issue with the Attorney General’s view that, until a new Taoiseach has nominated their 11 Senators, there is no properly constituted Seanad which can pass legislation.
Recognising, however, that they may be incorrect in their argument, Prof Doyle and Dr Hickey propose a neat solution, stating that “once the new Taoiseach’s nominees have been appointed, the Oireachtas should legislate to retroactively validate all legislation passed in the intervening period, as well as all official action taken on foot of that legislation. The Supreme Court has upheld legislation of this type in the past.”
This is, unfortunately, a partial solution at best.
By its very nature, emergency legislation tends to create or extend the scope of criminal offences, and interfere with property rights. The difficulty with such legislation being “retrospectively validated” is that the Constitution expressly provides that “The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission” (Article 15.5.1).
Similarly, while property rights can be interfered with in the interests of the common good, this can not, in general, be done retrospectively.
Your readers may recall that the government of the day attempted to do precisely this in 2004, after the courts declared unlawful the practice, which had arisen over the preceding 30 years, of deducting money from the State pensions of persons in nursing homes to pay for their care.
The Dáil and Seanad passed a new law, which not only stated that such charges would be lawful in the future, but deemed them to always have been lawful in the past. President McAleese referred the Bill to Supreme Court, which found that the retrospective provisions in the Bill were repugnant to the Constitution.
These principles are, of course, well known to lawyers who would be consulted by any person affected by an Act passed before a new government is formed, and they would advise their clients accordingly. If only for this reason, it seems the safer and more sensible course is to await the new Taoiseach’s nominees. – Yours, etc,
CATHAL MALONE, BL
Sir, – Further to Oran Doyle and Tom Hickey’s article, the political reality is that the 49 elected Senators, if convened, would likely have great difficulty agreeing to proceed with the first item of business, the election of a Cathoirleach. The majority required to elect the Cathoirleach would be 25, not 31, as in a full Seanad of 60 members. As the Cathoirleach is a member of the Presidential Commission, which meets in the absence or demise of a President, the election of a Cathoirleach by only 25 Senators would question the future legitimacy of the commission, in my view.
Article 14.4. of the Constitution states: “The Council of State may by a majority of its members make such provision as to them may seem meet for the exercise and performance of the powers and functions conferred on the President by or under this Constitution in any contingency which is not provided for by the foregoing provisions of this Article.”
Article 14 specifically deals with the make-up of the Presidential Commission.
If the Dáil refuses to nominate a person for appointment as Taoiseach, this lacuna could possibly be filled by the Council of State making such nomination, under Article 14.4, in order to allow the remaining office of the Presidential Commission to be filled by a fully constituted Seanad.
This is the only provision for a majority decision by the Council of State. The Council could be convened only by the President.
However unusual this might be, it would seem constitutionally more sound than attempting to make laws with only 49 out of 60 Senators. – Yours, etc,
(Former Fine Gael TD and MEP),