University of Limerick graduate wins appeal over voting rights in Seanad elections

Tomás Heneghan claimed he should enjoy the same right to vote in the elections as graduates of the National University of Ireland (NUI) and Trinity College Dublin (TCD). Picture: Dan Linehan

A University of Limerick (UL) graduate has won a Supreme Court appeal over his claim that he should be entitled to a vote in the Seanad Éireann elections under the university and vocational panels.

The decision will not however come into force until July 31 next to allow the Oireachtas an opportunity to change the law to reflect the finding, the court also found.

Tomás Heneghan claimed he should enjoy the same right to vote in the elections as graduates of the National University of Ireland (NUI) and Trinity College Dublin (TCD).

He had argued the State's failure to facilitate his registration as an elector was unlawful, unconstitutional and a breach of the European Convention on Human Rights (ECHR).

The Minister for Housing Planning and Local Government, the Government of Ireland and the State denied the claims.

In November 2021, a three-judge divisional High Court, found he had not established such an entitlement.

He appealed that decision directly to the Supreme Court.

On Friday, by six to one, a seven-judge Supreme Court allowed his appeal.

Mr Justice Brian Murray gave the main judgment while Mr Justice Gerard Hogan gave a concurring judgment and Mr Justice Peter Charleton dissented.

Mr Justice Murray said that having regard to principles of law which the court should apply under Article 18.4.2, which deals with NUI and TCD representation, the effect of this article was to mandate the introduction by the Oireacthas of legislation to expand the franchise.

He found the Oireachtas was given a very broad discretion as to how it reconstituted the franchise.

At a minimum, he found, the reconstitution had to result in the extension of the franchise so as to allow one or more institutions of higher education in addition to NUI and TCD.

The options available to the Oireachtas in so legislating were and are to ensure the franchise is vested in NUI and TCD and one or more other higher institutions of education, he said.

It would be open to legislators to vest the franchise in NUI or one or more other institutions or in TCD or one or more institutions. This was relevant in the event of the dissolution of either NUI or TCD, he said.

He found the relevant sections of Seanad Electoral (University Members) Act 1937, limiting the franchise to NUI and TCD, were invalid because the constitutional provision required the reconfiguration of the electorate in one or other of these ways.

The court's decision does not have an immediate effect.

This was because, Mr Justice Murray said, the court's declaration was "wholly prospective" in effect and should be suspended so as to allow the Oireachtas the opportunity to now legislate in compliance with its constitutional duty.

The suspension should be until July 31 next and the court would hear further submissions before then on whether it should be further extended, he said.

In a concurring judgment, Mr Justice Hogan said that the constitutional provision, in its proper contextual construction, imposed a constitutional obligation to revise and extend the university Seanad franchise within a reasonable time since the passing of the Seventh Amendment to the Constitution Act in 1979.

Mr Heneghan had argued there was a failure by the State to extend the voting franchise to other universities arising out of that 1979 amendment.

Mr Justice Hogan said the reasonable time period had long since expired with the result that the 1937 Act giving the franchise to NUI and TCD had been rendered unconstitutional.

The Oireachtas was under an obligation to revise universities constituencies and that must now be discharged within a reasonable period, he said.

Dissenting, Mr Justice Charleton said the Constitution was a carefully constructed and inherently structured document and construing it through canons of statutory construction was illogical.

He said however the will of the people as expressed by the Seventh Amendment had set at nought for 40 years and was an affront to democracy.

He found there should be a declaration to that effect but that was all that should be granted.

To go as far as the majority on the court, infringed the separation of powers doctrine, he said.

The Chief Justice Donal O'Donnell, Ms Justice Elizabeth Dunne, Ms Justice Iseult O'Malley and Ms Justice Marie Baker agreed with Mr Justice Murray and Mr Justice Hogan.