A three-judge High Court is hearing a significant constitutional action over whether there is, as of now, a validly constituted Seanad entitled to sit and pass laws.
The Seanad currently comprises 49 elected members of whom ten have brought the action disputing arguments by the Taoiseach and State that the Seanad cannot meet and pass laws until a Taoiseach nominates 11 further Senators to bring it to its full membership of 60.
The case has potential far-reaching implications because, if the court agrees with the State, and a new government is not formed this weekend with a Taoiseach nominating 11 Senators, very significant laws will lapse at midnight next Monday June 29th, including provisions of the Offences Against the State Act and the Criminal Justice (Amendment) Act relating to prosecution of serious criminal and terrorist offences and for trials before the non-jury Special Criminal Court.
Opening the case on Wednesday, John Rogers SC, for the ten, 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 Seamus Woulfe, noting media reports suggested “no reasonable certainty” of a Taoiseach in the next few days who can nominate the 11, said it would be “risky” and potentially unlawful for the Taoiseach to advise the President when a first meeting of the Seanad can lawfully and constitutionally take place.
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.
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”.
On Wednesday, Mr Rogers, with Eileen Barrington SC, and Hugh McDowell BL, said, 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 the outgoing Taoiseach has "discretion" to do so but has not because of the view the Seanad cannot lawfully meet until a Taoiseach nominates the remaining 11 Senators.
His side agreed with a recent 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, 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. This case was about the fundamental law of the State and not a "discretion".
Article 18 “plainly” mandates the first meeting of the Seanad “shall” take place after the Seanad election, completed 74 days ago on April 4th, he 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 same time say the Seanad 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 Constitution provides for a situation where a Taoiseach has not, in certain circumstances, nominated 11 Senators.
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 Dail unable to hold the government to account and a government that cannot seek legislative support for its programme and policies.
In opening arguments for the defendants, the Attorney General said the Article 18.8 unambigiously means a properly composed Seanad requires 11 nominated senators which can only be done by a new Taoiseach under Article 18.3.
Article 18.3 provides 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 to 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 Taoiseach has to have regard to whether a first meeting of the Seanad could constitutionally and lawfully take place and, in the current uncertain circumstances, can only exercise his discretion as he has done.
The case is expected to conclude on Thursday with judgment reserved, possibly to Friday.