A three judge High Court has begun hearing a significant constitutional action over whether there is, as of now, a validly constituted Seanad entitled to sit and pass laws.
There is a “legislative stalemate” in the State because of the current political impasse and that arises because of “an unjustified and improper interpretation” of the constitutional provisions, John Rogers SC, for ten Senators said.
The Taoiseach has done a “volte face” since indicating in a June 10 letter he could not advise President Michael D. Higgins of a date for reconvening the Seanad until a newly elected Taoiseach nominates 11 members, John Rogers SC, for ten Senators, said on Wednesday.
That letter “mis-stated” the constitutional position and the consequences of such a view 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, counsel said.
The Taoiseach has done a volte face on the June 10th position and now says the position is he could have advised the President to fix a date but did not because of his view the Seanad could not be properly composed unless a newly elected Taoiseach had nominated 11 Senators, counsel said.
Counsel agreed with High Court president Ms Justice Mary Irvine the Taoiseach has “conceded” he could have asked President Higgins on the date for a meeting of the Seanad but did not because of a view the Seanad would not be properly composed without the 11 nominated Senators.
Ms Justice Irvine, sitting with Mr Justice Denis McDonald and Ms Justice Niamh Hyland, said, irrespective of the Taoiseach’s position, the court still has to determine the constitutional issues raised in the proceedings.
In their case, the ten Senators maintain the Taoiseach and State are incorrect in their view that the Seanad, which currently has 49 members, cannot sit and pass legislation until a newly elected Taoiseach nominates 11 Senators to make up the full complement of 60.
The case has important implications because, if the court finds the Seanad is not validly constituted as of now, and a new government is not formed this weekend with a Taoiseach nominating the remaining 11 members, very significant laws will lapse on June 29th.
Those laws include provisions for the continuation of the non-jury Special Criminal Court.
An indication of the importance of the case is that Attorney General Seamus Woulfe SC is heading the State legal team.
The ten plaintiffs are elected Senators Ivana Bacik, Victory Boyhan, Gerard Craughwell, Annie Hoey, Sharon Keogan, Michael McDowell, Rebecca Moynihan, Ronan Mullen, Marie Sherlock and Mark Wall.
They initiated the proceedings earlier this month against An Taoiseach, Ireland and the Attorney General after correspondence failed to resolve the impasse over whether the Seanad can sit with 49 elected members and pass laws.
The case centres on interpretation of various provisions of the Constitution, particularly Article 18 of the Constitution concerning the composition of the Seanad and election of Senators.
In submissions today, Mr Rogers said his side agreed with an opinion piece in the Irish Times in which constitutional law academics Oran Doyle and Tom Hickey said an outgoing Taoiseach can convene the first meeting of the Seanad.
That was based on a “literal” interpretation of the Constitution, 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”.
Article 18 mandates the first meeting of the Seanad takes place after a general election on a date to be fixed by the president on the advice of a Taoiseach, he said. That “plainly” mandates the first meeting “shall” take place after the general election and after the election of the Seanad, between March 30th and April 4th.
The Constitution itself does not provide for dissolution of a Seanad, a Seanad election is merely called under law, he said.
Earlier, Mr Rogers, with Eileen Barrington SC, and Hugh McDowell BL, provided the court with a timeline of events since February’s general election. He said that included the passage of legislation to deal with the Covid-19 pandemic by the Seanad on March 29th, the day before polling day for the new Seanad.
That was just one example of an outgoing Seanad enacting laws with an incoming Dail and demonstrated the Constitution has a facility for an “overlapping effect”.
The hearing continues.