Seanad Éireann and a constitutional impasse


Sir, – We welcome the letters (March 28th) responding to our article regarding the constitutional authority of the Oireachtas to legislate prior to the appointment, by the next taoiseach, of his or her 11 nominees to the Seanad (“Oireachtas can pass laws in public interest without taoiseach’s Seanad nominees”, Opinion & Analysis, March 26th).

Daniel Griffin depicted our argument as a lawyerly exploitation of a “loophole” that might violate the spirit, if not the letter, of the Constitution. Far from it.

Indeed, it would make sense if our understanding of the constitutional position had been consciously designed by the drafters so as to allow the Oireachtas to legislate in those periods prior to the formation of a new government.

In contrast, Mr Griffin’s position implies a weakness into the Irish constitutional system that does not – to the best of our knowledge –pertain in the constitution of any other country.

Cathal Malone BL, meanwhile, takes issue with our suggestion that the Oireachtas could later retrospectively validate legislation enacted before a taoiseach appoints 11 new senators, saying it is only a partial solution. Indeed. That is why it was only one of three remedial measures in our article. We also suggested that, were a court were to decide that legislation enacted without the taoiseach’s 11 senators was unconstitutional, the court would probably suspend the declaration of unconstitutionality for 12 months. To do otherwise would invite chaos. In that context, none of the problems identified by Mr Malone would arise as the separate remedial legislation would only need to have effect from the date of its enactment.

We agree with the letter writers that it would be desirable for the Dáil to elect a new taoiseach, whether through a national unity government, a coalition government, or other parties abstaining in the vote for taoiseach to allow the current government– in effect – continue on borrowed time. Our article was directed to the question of what happens should this not occur. It remains our view that the continuing ability of the Oireachtas to legislate is fully consistent both with the text of the Constitution and with its core purpose of providing a framework for democratic governance, in good times and bad. – Yours, etc,


Law School,

Trinity College Dublin;


School of Law and


Dublin City University.

Sir, – I would support the views expressed by Oran Doyle and Tom Hickey in their article.

There are strong parallels with the arguments being made that the Seanad could not enact legislation without the taoiseach’s nominated members and the conundrum presented during the recent general election when one of the candidates in Tipperary died and the Electoral Act 1992 provided that the poll would have to be delayed. Under that scenario, the new Dáil could have met without its full complement of members. While it may be undesirable that it should do so, the point is that it could. Article 15. 11.3 of the Constitution provides “the number of members necessary to constitute a meeting of either House for the exercise of its powers shall be determined by its Standing Orders”. This is quite clear-cut and either House can meet, as it has often done, with a number of vacancies once it is quorate. Moreover the import of the 1992 Act, which allows for a delayed poll, clearly allows for a new Dáil to meet with vacancies in its membership. To imagine that the framers of that Act in 1992, and the attorney general of the day, would not be aware of the implications of this, is doing them a disservice.

The current Attorney General resolved the issue in the general election by summarily declaring that the legislation should be overruled and the poll in Tipperary could proceed on the same day as the general election. The constitutionality of this has been strongly, and validly in my view, questioned (“Legal challenge over Tipperary poll now seems inevitable” David Kenny and Conor Casey, Opinion & Analysis, February 6th) but not many would argue against the pragmatism of his decision.

The current decision bears the same hallmarks of political expediency but regrettably without the pragmatism.

At the end of the day the Oireachtas and Government should not, in my view, put itself into a constitutional cul-de-sac by saying it cannot legislate while at the very minimum there is ample scope to proceed. It should be seen to get on with what needs to be done, as so admirably illustrated by our health service and elsewhere in the current unprecedented crisis. – Yours, etc,


(Former Clerk

of Dáil Éireann),


Dublin 18.

Sir, – In 2013, both during and after the referendum campaign, the country was promised a reformed and more relevant Seanad. Almost seven years on and there has been zero reform.

Worse still, the country is now faced with uncertainty as to whether the Oireachtas can pass laws which affect the health of the nation. This uncertainty arises because an unchanged and undemocratic feature of the Seanad, namely the ability of the taoiseach to nominate 11 Senators cannot be implemented.

Whenever this terrible crisis passes, surely the people should be asked again whether the country really needs such an institution. – Yours, etc,



Dublin 12.