A three judge High Court will rule on Monday on a significant constitutional action over whether there is, as of now, a validly constituted Seanad entitled to sit and pass laws.
When the case concluded this afternoon, High Court president Mary Irvine said the court had considered a request by ten Senators to give its decision on Friday and provide reasons for that later but the court did not consider that was advisable.
There are “very serious” issues to be considered by all members of the court and the “most prudent and cautious course” is to give a fully reasoned written judgment on Monday at 9.30am, she said.
The Seanad currently comprises 49 elected members and ten have brought the proceedings disputing the view of the Taoiseach and State the Seanad cannot meet and pass laws until a new 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 finds a Seanad of 49 elected members cannot meet and pass laws, and a new government is not formed this weekend with a Taoiseach to nominate 11 Senators, very significant laws will lapse at midnight on Monday.
Those include provisions of the Offences Against the State Act and the Criminal Justice (Amendment) Act relating to prosecution of serious criminal and terrorist offences and trials before the non-jury Special Criminal Court.
On Thursday, Ms Justice Irvine, Mr Justice Denis McDonald and Ms Justice Niamh Hyland heard closing arguments in the one-and-a-half day case before reserving judgment to Monday.
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 against An Taoiseach, Ireland and the Attorney General centres on interpretation of various provisions of the Constitution, particularly Article 18.
Article 18.1 provides the Seanad “shall be composed of sixty members, of whom eleven shall be nominated members and forty-nine shall be elected members”.
Article 18.8 provides the first meeting of the Seanad after a general election “shall take place on a day to be fixed by the President on the advice of the Taoiseach”.
The plaintiffs argue the outgoing Taoiseach had, from the time 49 members of the Seanad were elected on April 4, power to advise the President to fix a date for the convening of the Seanad.
They dispute the respondents view the Taoiseach has discretion to advise the President which he should not exercise until there is reasonable certainty a new Taoiseach will be elected and in a position to nominate the remaining 11 senators.
The State respondents rely on the analysis in Kelly: The Irish Constitution, regarded as the seminal work on the Constitution, concerning the ability of the legislature to legislate in the period between election of a new Dáil and the meeting of a new Seanad.
That analysis referred to a “vacuum of legislative power” arising from the inability to have a “fully composed” Seanad of 60 because a new Taoiseach not been appointed.
In closing arguments for the 10 on Thursday, John Rogers SC, with Eileen Barrington SC and Hugh McDowell BL, said the State case means there is “no parliament” and Taoiseach Leo Varadkar is “immovable” until a new Taoiseach is elected.
That is “an unsupportable proposition” and the current situation is worse than a “legislative deadlock”, he said.
We are playing with fire and it is not permissible to take such risks.
The priority is the safety of the people and the drafters of the Constitution could not have perceived there would be an interregnum in the legislative system in the way argued for by the respondents, he argued.
The drafters had envisaged circumstances where the legislative institutions can be convened to pass laws in the type of emergency governed by Article 24.
Closing the case for the State, Attorney General Seamus Woulfe SC, with Conleth Bradley SC and Michael Binchy BL, said Article 24 requires there should be a properly composed Seanad.
He said the Taoiseach’s exercise of discretion in relation to advising the President of a day to convene the Seanad was informed by the “principal consideration” that he, as outgoing Taoiseach, could not nominate 11 members so he could not advise the President of the date.
The issue is whether that principal consideration is a valid one, the State maintained it was, and “all roads lead back to Article 18.8”.