Seanad row heads to court amid political drama and threat of lapsing legislation

If Green Party members end up rejecting the programme for government, there are two immediate possibilities this weekend: either a government is cobbled together without them, or it is not.

The former will be extremely difficult politically; the latter would mean that important elements of the anti-terrorist and anti-gangland legislation, including the trial of certain offences by the non-jury Special Criminal Court under the Offences Against the State Act, would lapse at midnight on Monday. Either way, a weekend of the most intense political pressure is in prospect if the proposed coalition between the Greens, Fine Gael and Fianna Fáil falls.

The legislative deadline in question is well known: certain provisions within the special powers Acts must be annually renewed by a vote of the Dáil and by the Seanad.

However, because there is currently no new taoiseach to complete the Seanad by giving the taoiseach’s 11 nominations to the Upper House, the Seanad cannot meet to legislate; unless a new taoiseach is elected by the Dáil, the Seanad will remain incomplete, and incapable of passing a vote. So, if there is no new coalition, there is no Special Criminal Court.

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But is there a way around the threat to the court? A group of Senators believe there is, and the High Court will be asked on Wednesday to facilitate it.

Contradict advice

Independent and Labour Senators will ask the High Court for a ruling which would contradict the Attorney General's advice that a Seanad without the "Taoiseach's 11" is not fully constituted. This would open the way to the Seanad meeting on Sunday or Monday and passing a vote to renew the provisions in the Offences Against the State Act. It would significantly ease the political pressure that would ensue if the coalition deal is rejected by the Green Party.

The Senators argue that there is no constitutional impediment to the summoning of the Seanad (procedurally, the Taoiseach advises the President to summon it to meet) and for it to legislate with 49, rather than 60, members. They are likely to argue that there is no specific constitutional requirement in the relevant articles for the “Taoiseach’s 11” to be nominated before the new Seanad meets and begins its business. Those words, they will argue, are just not in the Constitution.

The Senators – who include Independents such as Michael McDowell and Rónán Mullen as well as several Labour Senators – are likely to point to the indefinite nature of the current impasse and say that the courts should interpret the Constitution in a way that avoids such a crisis.

They are likely to ask what would have happened if the Covid-19 pandemic had struck a month later – under the Taoiseach’s interpretation, none of the emergency coronavirus legislation could have been approved because the Seanad would not have been “properly constituted”. The courts should avoid such an interpretation, they will argue.

Potential loophole

The existence of such a potential constitutional loophole – or "lacuna", as the legalese puts it – on the make-up of the Seanad has previously been recognised, including in the leading constitutional law textbook, where such an eventuality was explicitly considered. It is, author Gerard Hogan (now advocate general of the European Court of Justice) wrote, "a constitutional lacuna that could in certain circumstances be highly problematic". The author wondered if the courts might eventually be asked to adjudicate on the question: now they have.

The Government will strongly defend the Taoiseach's position that he cannot summon the Seanad (even though to do so might solve a political problem for Leo Varadkar this weekend).

Government lawyers are likely to argue that there is no lacuna, or constitutional problem: rather, there is a political problem of the Dáil’s inability to elect a new taoiseach, and the courts have no business trying to solve political problems. This is a matter for the Dáil, they will argue, and not for the High Court.

They will say that the Constitution is very clear about the make-up of the Seanad – it must have 60 members, comprised of its elected and appointed members, and the elected members can no more make laws without the appointed members than the appointed members could do without the elected members.

The hearing of a three-judge High Court on Wednesday – under its new President, Judge Mary Irvine – is taking place in the Supreme Court chamber and could perhaps run into Thursday. Because of the political situation, a quick judgment is expected, perhaps on Friday, though a detailed reasoning for the judgment could be published at a later date. Whatever the outcome, the judgment will play a significant role in the political drama to come over the coming days.