A three-judge High Court has found the first meeting of the Seanad can only lawfully take place with its full membership of 60, comprising 49 elected members and 11 nominees of an incoming Taoiseach.
The court today rejected arguments on behalf of 10 elected senators that the Seanad can legislate with 49 elected members and without the Taoiseach’s nominees.
The 10 brought the proceedings against An Taoiseach, Ireland and the Attorney General earlier this month disputing the view of the outgoing Taoiseach and the State that 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 was heard urgently last week due to concerns, if the programme for government was not approved last week and a Taoiseach not elected by the Dáil to nominate 11 Senators, important legislation might lapse at midnight today 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.
Toda, High Court President Ms Justice Mary Irvine, Mr Justice Denis McDonald and Ms Justice Niamh Hyland gave their 62-page judgment on the case, which centred on interpretation of various provisions of the Constitution, particularly Article 18 dealing with the Seanad.
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 court said it was satisfied Article 18.1 “clearly and unambiguously means that the Seanad “must be comprised of sixty members, eleven of whom are nominated and forty nine of whom are elected”.
This arises from the wording of Article 18.1 itself, the other provisions of Article 18 and a consideration of Articles 5,6 and 15, it said.
The court rejected the argument the Seanad is entitled to sit before the Taoiseach has nominated the 11 members provided for in Article 18.1 It disagreed with the plaintiffs’ claim, because the Seanad is not dissolved, it should be in a position to legislate at all times, save where explicitly precluded form so doing.
The court also said the plaintiffs were wrong to describe what has occurred since March 29, when the members of the outgoing Seanad ceased to hold office, as a “constitutional lacuna”.
The lacuna is simply the product of the form of democracy adopted in the Constitution which proceeds on the basis the organs of State to whom powers are conferred by the Constitution will act to give effect to them and that elected representatives will act rationally and responsibly to ensure a Government is put in place.
The court agreed with the Attorney General that the problem engendered by the delay in nominating an incoming Taoiseach did not relate to constitutional interpretation but was rather concerned with the absence of political consensus within the Dáil.
While it understood the plaintiffs genuine concerns that, without a functioning Seanad, it would be impossible to enact emergency laws, the court did not believe such considerations can be allowed to influence the interpretation of the Constitution.
The court is obliged “to interpret the Constitution by reference to its terms”, it said.
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. Senators Bacik, Hoey, McDowell, Sherlock and Wall were in court for the decision today.