A University of Limerick (UL) graduate has won a Supreme Court appeal over his claim that he should be entitled to a vote in the Seanad Éireann elections under the university and vocational panels.
The court’s decision will not come into force until July 31st to allow the Oireachtas an opportunity to change the law to reflect the finding.
Tomás Heneghan claimed he should enjoy the same right to vote in the elections as that of graduates of the National University of Ireland (NUI) and Trinity College Dublin (TCD).
He argued the State’s failure to facilitate his registration as an elector was unlawful, unconstitutional and a breach of the European Convention on Human Rights.
The Minister for Housing, Local Government and Heritage, the Government of Ireland and the State denied the claims.
In November 2021, a three-judge divisional High Court found Mr Heneghan had not established such an entitlement. He appealed that decision directly to the Supreme Court.
On Friday, by six to one, a seven-judge Supreme Court allowed his appeal.
Mr Justice Brian Murray gave the main judgment, while Mr Justice Gerard Hogan gave a concurring judgment and Mr Justice Peter Charleton dissented.
Mr Justice Murray said that having regard to principles of law which the court should apply under Article 18.4.2, which deals with NUI and TCD representation, the effect of this article was to mandate the introduction by the Oireachtas of legislation to expand the franchise.
He found the Oireachtas was given a very broad discretion as to how it reconstituted the franchise.
At a minimum, he found, the reconstitution had to result in the extension of the franchise so as to allow one or more institutions of higher education in addition to NUI and TCD.
The options available to the Oireachtas in legislating were and are to ensure the franchise is vested in NUI and TCD and one or more other higher institutions of education, Mr Justice Murray said.
It would be open to legislators to vest the franchise in NUI or one or more other institutions or in TCD or one or more institutions. This was relevant in the event of the dissolution of either NUI or TCD, he said.
Mr Justice Murray found the relevant sections of Seanad Electoral (University Members) Act, 1937, limiting the franchise to NUI and TCD, were invalid because the constitutional provision required the reconfiguration of the electorate in one or other of these ways.
The court’s decision does not have an immediate effect. This was because the court’s declaration was “wholly prospective” in effect and should be suspended to allow the Oireachtas the opportunity to now legislate in compliance with its constitutional duty, Mr Justice Murray said.
The suspension should be until July 31st, and the court will hear further submissions before then on whether it should be further extended, he said.
In a concurring judgment, Mr Justice Hogan said that the constitutional provision, in its proper contextual construction, imposed a constitutional obligation to revise and extend the university Seanad franchise within a reasonable time since the passing of the Seventh Amendment to the Constitution Act in 1979.
Mr Heneghan had argued there was a failure by the State to extend the voting franchise to other universities arising out of that 1979 amendment.
The amendment allows for the election of six members of the Seanad in the university constituencies to be altered by law.
Mr Justice Hogan said the reasonable time period had long since expired with the result being that the 1937 Act giving the franchise to NUI and TCD had been rendered unconstitutional.
The Oireachtas was under an obligation to revise universities constituencies and that must now be discharged within a reasonable period, he said.
Dissenting, Mr Justice Charleton said the Constitution was a carefully constructed and inherently structured document and construing it through canons of statutory construction was illogical.
However, he said the will of the people, as expressed by the Seventh Amendment, had been set at naught for 40 years and was an affront to democracy.
He found there should be a declaration to that effect but that was all that should be granted.
To go as far as the majority of the court, infringed the separation of powers doctrine, he said.
Chief Justice Donal O’Donnell, Ms Justice Elizabeth Dunne, Ms Justice Iseult O’Malley and Ms Justice Marie Baker agreed with Mr Justice Murray and Mr Justice Hogan.
Law change
The Government did not immediately respond to an Irish Times query on whether the Coalition will seek to change the law to allow graduates of other third level institutions to vote in Seanad elections before July 31st.
Currently voting for six of the Seanad’s seats is limited to graduates from either Trinity College Dublin (TCD) or National University of Ireland (NUI) colleges.
People who went to the University of Limerick, Dublin City University or Technological Universities among those excluded.
The electorate for other Seanad seats is limited to elected representatives like councillors and TDs and the Taoiseach has the power to appoint 11 senators.
A large majority voted to extend voting rights for the university seats to graduates of all third level institutions in a 1979 referendum but successive Governments have failed to act on the powers it granted to reform the system.
Fianna Fáil Senator Malcolm Byrne - who previously brought forward proposed legislation to expand the electorate to more graduates of other higher education institutions - welcomed Friday’s Supreme Court decision.
Under his legislation - the Seanad Electoral (University Members) (Amendment) Bill 2020 - a single six-seat constituency for graduate voters would be created.
The proposed Bill is due to be debated at committee stage in the Seanad in April.
Mr Byrne said: “The government has indicated that it supports my Bill in principle.
“It is now a matter of urgency that action is taken in advance of the next Seanad elections and that the will of the people 44 years ago is given effect.
“This will be a significant measure in reforming the Seanad franchise.”
Dr Laura Cahillane, a senior law lecturer at University of Limerick was an expert witness during the case taken by Mr Heneghan.
She said that her students are “perplexed as to why they do not get a vote simply due to happenstance in terms of which university they decided to attend and due to inaction on the part of the Government to change this.”
Ms Cahillane added: “The judgments are hugely significant with ramifications for the future interpretation of the Constitution but on a practical level it will mean a lot of work now for government to put in place a fair voting system as soon as possible.
“It may even prove to be an impetus to proceed with Seanad reform more generally, which is also well past overdue.
“The case can be regarded as a victory for democracy and a lesson about the importance of the voice of the people,” she said.
Sinn Féin Senator Fintan Warfield said the judgement “should serve as a wake up call to Government” adding “it is crucial that the required reforms are now delivered without delay.”
He said that along with a new six-seat constituency for graduates, Sinn Féin believes the majority of the Seanad should be elected by the public including Irish citizens in the north and overseas.
