Oran Doyle
and Tom Hickey

In an email sent to a member of Dáil Éireann over the past few days, the recently re-elected Ceann Comhairle, Seán Ó Fearghaíl, made a startling claim: “from midnight next Sunday 29 March 2020”, he reportedly wrote, “the Houses of the Oireachtas will not be able to pass legislation.”

This was no solo run on Ó Fearghaíl’s part. He is reported to have said so on the basis of legal advice given by the Attorney General, Séamus Woulfe. We can now safely call this the “official view”. The Attorney General’s advice is sure to have turned on an interpretation of certain provisions of article 18 of the Constitution around the composition of the Seanad – which we consider momentarily.

In the midst of the Covid-19 crisis, the important practical implication of the official view is that the Oireachtas will likely not even attempt to enact legislation in the time (possibly months) between midnight on Sunday and the day that the 33rd Dáil elects a new Taoiseach. From the perspective of public health, public order, and economic stability, this is deeply unnerving. We need the Oireachtas to be able to legislate at the best of times. At the worst, that need is even greater.

From the perspective of constitutional governance, however, it is reassuring that these actors, and others around them, are trying to do right by the Constitution – particularly in these difficult times. Compare, for instance, developments in the United Kingdom where the Supreme Court repeatedly held that the government was acting unlawfully in relation to its Brexit project, most notably last September’s attempted prorogation of parliament.

Much as we laud our officials’ commitment to constitutional integrity, we make three countervailing suggestions. First, that the relevant provisions of article 18 are open to different reasonable interpretations. Second, that the official view may be less persuasive than other interpretations. Third, that especially given the current crisis, the Oireachtas should be slow to bind itself to the official view and might instead consider an interpretation that allows it to legislate in the public interest.

Article 18 of the Constitution provides that the Seanad “shall be composed of 60 members …” Of these, 11 shall be nominated “by the Taoiseach who is appointed next after the reassembly of Dáil Éireann” (article 18.3), and the other 49 “shall be elected”. The wording of article 18.3 is such that it unquestionably must be the new Taoiseach, rather than the so-called caretaker Taoiseach, who gets to nominate the 11. The official view rests on the idea that until those 11 have been appointed, there is no Seanad. If a Seanad does not exist, the Oireachtas – which comprises the Dáil, the Seanad and the President – cannot legislate.

We think, however, that this proceeds too fast. Consider first of all that the Seanad often has fewer than 60 members, whether due to the death or resignation of a senator. It has never been suggested that in those circumstances the Seanad ceases to be validly constituted, and that the capacity of the Oireachtas to legislate is stalled.

But that on its own is insufficient: It is entirely plausible to argue that there is something special about the Seanad having a full membership at the outset. Much as this is plausible as a general principle, we point to other provisions of the Constitution that count against it.

Article 18.8 provides that the first meeting of the Seanad after its general election “shall take place on a day to be fixed by the President on the advice of the Taoiseach”. We see two critical omissions here. First, although article 18.8 requires the Seanad general election to occur before the first meeting, it does not require the Taoiseach to nominate senators before the first meeting. Second, although article 18.3 plainly limits the initial power to nominate senators to the newly elected Taoiseach, article 18.8 allows the outgoing Taoiseach to convene the first meeting of the Seanad. (Article 28.11 provides that a Taoiseach who has resigned continues to carry on his duties until a successor has been appointed.)

In other words, the Constitution takes great care (a) to specify that the new Seanad cannot be convened until the 49 elected members have been chosen and (b) to prevent the outgoing Taoiseach from nominating the 11 Senators. Here then is the key point that these conscientious constitutional actors might consider: the existence of these direct and explicit limitations on the Taoiseach’s powers counts against the existence of an indirect and implicit limitation on the Taoiseach’s power to convene the first meeting of the Seanad. If the Seanad can be convened before the Taoiseach’s nominees are in place, then the Oireachtas is fully constituted and legislation can be enacted.

A final point. Even if persuaded by our counter-arguments, responsible legislators might think it overly risky to proceed on this basis. If someone successfully challenges legislation passed in this way, there could be a dangerous legal gap. We consider the risk to be very low, however – for the following reasons.

First, the doctrine of the presumption of constitutionality means that any legislation – and any official action taken on foot of that legislation – remains valid unless or until successfully challenged in court. Second, if such legislation were challenged in court and the judges were to decide that the Seanad hadn’t been properly constituted, the courts have in recent years begun to develop a flexibility in their remedies such that they can “suspend” declarations of unconstitutionality for periods of six or 12 months to allow the Oireachtas address the constitutional deficiency. This is the very kind of scenario for which such remedies were designed. Third, once the new Taoiseach’s nominees have been appointed, the Oireachtas should legislate to retroactively validate all legislation passed in the intervening period, as well as all official action taken on foot of that legislation. The Supreme Court has upheld legislation of this type in the past.

Coalition talks are under way in any event, as everyone knows. If they are successful, we will have a new Taoiseach and this problem will be solved without any need to legislate on a contested constitutional basis. If those talks break down, however, we believe that the Oireachtas should still feel confident in its ability to legislate to protect the public interest.

• Professor Oran Doyle of Trinity College Dublin and Dr Tom Hickey of Dublin City University are co-authors of Constitutional Law: Texts, Cases & Materials (2nd ed., Clarus Press, 2019). This article first appeared in The Irish Times.