Legislative stalemate due to ‘improper’ view of Constitution, court told

The High Court has begun hearing a significant constitutional action over whether there is, as of now, a validly constituted Seanad that is entitled to sit and pass laws.

The Seanad currently comprises 49 elected members and 10 of these have brought the action disputing arguments by the Taoiseach and State that the House cannot meet and pass laws until a taoiseach nominates 11 further senators and brings its full membership to 60.

The case could have far-reaching implications because, if the three judge court agrees with the State, and a new government is not formed this weekend and 11 senators are not nominated by a taoiseach, significant laws will lapse at midnight on Monday. These include provisions of the Offences Against the State Act and the Criminal Justice (Amendment) Act relating to the prosecution of serious criminal and terrorist offences before the non-jury Special Criminal Court.

Opening the case on Wednesday, John Rogers SC, for the senators, argued there is now a “legislative stalemate” in the State arising from the current political “impasse” and the respondents “unjustified and improper interpretation” of the relevant constitutional provisions.

Opposing the case, Attorney General Séamus Woulfe, noting media reports, suggested there was “no reasonable certainty” of there being a taoiseach who could nominate the 11 senators in the next few days.

Potentially unlawful

He said it would be “risky” and potentially unlawful for the Taoiseach to advise President when a first meeting of the Seanad can lawfully and constitutionally take place.

The 10 plaintiffs are senators Ivana Bacik, Victor Boyhan, Gerard Craughwell, Annie Hoey, Sharon Keogan, Michael McDowell, Rebecca Moynihan, Rónán Mullen, Marie Sherlock and Mark Wall.

Their case, being heard by High Court President Ms Justice Mary Irvine, Mr Justice Denis McDonald and Ms Justice Niamh Hyland, particularly centres on interpretation of Article 18 of the Constitution.

Article 18.8 provides the Seanad “shall be composed of sixty members, of whom eleven shall be nominated members and forty-nine shall be elected members”.

Mr Rogers, with Eileen Barrington SC and Hugh McDowell BL, said that as a result of a “volte face” the respondents have moved from saying the outgoing Taoiseach has no power to advise the President to fix a date for the first sitting to saying he has “discretion” to do so but has not because of the view the Seanad cannot lawfully meet until the remaining 11 senators are nominated.

His side agreed with a recent opinion piece in The Irish Times in which academics Oran Doyle and Tom Hickey said an outgoing taoiseach can convene the first meeting of the Seanad, counsel said.

The Constitution mandates a continuity of legislature before a government is formed and while there is now a political impasse, there is not a “constitutional lacuna”, he said.

‘No sense’

He said Article 18 “plainly” mandates the first meeting of the Seanad “shall” take place after the Seanad election, which was completed 74 days ago. Mr Rogers said it made “no sense” for the defendants to say the taoiseach can advise the president to fix a date for the Seanad to meet and at the same time say the House cannot legislate.

While Article 18.8 provides the Seanad “shall” be composed of 60 members, it does not say the Seanad must be fully composed before it can meet, he said.

The consequences of the view the Seanad must have 60 members to lawfully meet are far-reaching, including there would be “no functioning Oireachtas”, a Dáil unable to hold the government to account and a government that cannot seek legislative support for its programme and policies.

Mr Woulfe said Article 18.8 unambigiously means a properly composed Seanad requires 11 nominated senators which can only be appointed by a new taoiseach under Article 18.3.

Article 18.3 provides that the first meeting of the Seanad shall take place on a date to be fixed by the president on the advice of the taoiseach, he said. The taoiseach may have a range of considerations concerning when to advise the president about a date for convening the Seanad, including whether there is a reality of a new taoiseach being in position to nominate the 11 senators.

Advising the president in this context was akin to a discretionary power and the taoiseach has to have regard to various factors in exercising that, he said.

Some of those may be “purely political” considerations and, while there may be issues about the court’s ability to review that discretion, those did not arise here because the taoiseach also has to have regard to legal considerations under Article 18.

The case is expected to conclude on Thursday with judgment reserved, possibly to Friday.