Michael McDowell: New Seanad can pass legislation

Upper House is capable of functioning without incoming taoiseach’s nominees

“The suggestion that the Seanad is not capable of functioning unless the 11 nominations are made by an incoming taoiseach is somewhat fanciful.” Photograph: Alan Betson

“The suggestion that the Seanad is not capable of functioning unless the 11 nominations are made by an incoming taoiseach is somewhat fanciful.” Photograph: Alan Betson

 

It has been suggested that the Oireachtas cannot legislate at the moment because the Seanad has yet to be “fully constituted” pending the nomination of 11 members by the taoiseach appointed by the Dáil after the general election.

The argument seems to be that the Seanad cannot lawfully be convened unless and until the 11 taoiseach’s nominees have been appointed.

The argument therefore seems to suggest that the Oireachtas, which consists of the president, the Dáil and the Seanad, cannot enact any legislation, even emergency legislation, unless and until a new taoiseach has been appointed by the president on foot of a resolution passed a majority of TDs present and voting and unless and until the new taoiseach has nominated 11 members to join the 49 recently elected members of the Seanad.

Is this right?

Article 15 of the Constitution reads as follows: “The Oireachtas shall consist of the President and two Houses, via a House of Representatives to be called Dáil Éireann and a Senate to be called Seanad Éireann”.

The 49 elected members of the Seanad are elected in what the Constitution describes as a “general election for Seanad Éireann” which must take place not later than 90 days after a dissolution of Dáil Éireann, and every member holds office “until the day before polling day of the general election for Seanad Éireann next held after his election or nomination”.

Incomplete Seanad

This process is now complete and as things stand there are 49 members of the Seanad, including myself. They now hold office. They are members of the Seanad. That seems to imply that the Seanad exists – although incomplete – rather than that the 49 elected members of the Seanad are not members of any institution at all unless and until the Dáil agrees to nominate a new taoiseach with the right to nominate 11 further members.

Let us take a concrete example. If the present Dáil wished to pass a Bill next week as an emergency measure, it could do so, just as it passed the recent emergency legislation.

If there were now a need for such further emergency powers, the Bill could, under article 24, be fast-tracked as emergency legislation shortening the period for the Seanad’s consideration to less than 90 days, provided that the taoiseach certified the emergency by message sent to “the President and to the chairman of each House of the Oireachtas” and if the president, having consulted the Council of State, concurred with such an abridgment.

Is it seriously contended that the Supreme Court would invalidate any such legislation passed by the Seanad consisting of 49 elected members on the ground that it could not validly consider and pass the Bill until the taoiseach who had certified the emergency had himself been replaced or re-elected by the Dáil so that the 11 nominated senators could be appointed?

Emergency Bill

Surely the Constitution must be interpreted as permitting the parliament to function in the face of an emergency while negotiations for the next government continue? If the outgoing Taoiseach has the right to request an abridgment of time for the consideration by the Seanad of such an emergency Bill, how could it make any constitutional sense to deprive the Oireachtas of the right to enact the Bill passed by a majority in the Dáil just because the Dáil has not yet agreed on who should succeed him?

What possible interest could be served by interpreting the Constitution so as to prevent the Oireachtas legislating, by a majority of elected members in each House, to deal with an emergency on the ground that 11 unlatched Seanad members had not yet been appointed?

The Supreme Court does not act in that way.

In 1978, the Supreme Court held that the references in the Constitution to the chairmen and deputy chairman of the Dáil as members of the commission which acts in the absence of a president had to be interpreted as meaning that the chairman and deputy chairman of a dissolved Dáil continued to function as members of the presidential commission until their successors were appointed – even though their office had otherwise ended by reason of the dissolution of the Dáil.

The court rejected an argument that these two offices became vacant for constitutional purposes because the Dáil was dissolved.

The suggestion that the Seanad is not capable of functioning unless the 11 nominations are made by an incoming taoiseach is somewhat fanciful. It does not rely on a constitutional construction that respects the democratic nature of the State or the right and duty of its parliament, the Oireachtas, to pass necessary legislation in the type of emergency explicitly envisaged by article 24.

Hopefully, there will be a new government in short order. And, by the way, equally hopefully, the new government will finally act to reform the system of election of the Seanad – a matter in respect of which the Fine Gael party has been cynical and self-serving since its ill-fated attempt to abolish the Seanad.

Fine Gael established the Manning committee to deal with such a reform. It established the Seanad Reform Implementation Group, which I chaired, to prepare the legislation to implement the Manning report. But to its shame, it cynically discarded both reports to keep the Seanad unreformed. That must end now.

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