Senator Ivana Bacik v an Taoiseach

JurisdictionIreland
JudgeTHE PRESIDENT,MCDONALD J.,HYLAND J.
Judgment Date29 June 2020
Neutral Citation[2020] IEHC 313
Docket Number[2020 No. 4217 P]
CourtHigh Court
Date29 June 2020
BETWEEN
SENATOR IVANA BACIK, SENATOR VICTOR BOYHAN, SENATOR GERARD CRAUGHWELL, SENATOR ANNIE HOEY, SENATOR SHARON KEOGAN, SENATOR MICHAEL MCDOWELL, SENATOR REBECCA MOYNIHAN, SENATOR RONAN MULLEN, SENATOR MARIE SHERLOCK

AND

SENATOR MARK WALL
PLAINTIFFS
AND
AN TAOISEACH, IRELAND

AND

THE ATTORNEY GENERAL
DEFENDANTS

[2020] IEHC 313

THE PRESIDENT

MCDONALD J.

HYLAND J.

[2020 No. 4217 P]

THE HIGH COURT

Constitution – Seanad Éireann – Question of exceptional public importance – Plaintiffs seeking determination of a question of exceptional public importance – Whether the Seanad can sit as a House of the Oireachtas in the absence of the nominated senators

Facts: In the general election for the Seanad which commenced on 30th March 2020, consequent to the general election which took place on 8th February 2020 for Dáil Éireann, forty-nine senators were elected to the Seanad. That did not complete the complement of sixty senators contemplated by Article 18 of the Constitution. The remaining eleven senators were not nominated until 27th June 2020 following the election of Mr Martin as Taoiseach on the same date. During the interregnum between the election on 8th February 2020 and the election of Mr Martin on 27th June 2020, the outgoing Taoiseach continued to perform the duties of that office in accordance with Article 28.11 of the Constitution. However, a continuing Taoiseach, performing duties under Article 28.11, does not have the power under Article 18.3 to nominate the eleven nominated senators. That power resides solely in a newly elected Taoiseach. While a number of constitutional issues arose for consideration in these proceedings, the most fundamental issue before the High Court related to whether Seanad Éireann may sit as a House of the Oireachtas notwithstanding the fact that, at the date the proceedings were brought and heard, the complement of senators was composed solely of those recently elected under Article 18.4 and did not include the eleven senators to be nominated under Article 18.3 by the incoming Taoiseach (who had yet to be appointed, on the nomination of Dáil Éireann, under Article 13.1). After completion of the hearing on 25th June 2020, Mr Martin was elected Taoiseach of the 33rd Dáil on 27th June 2020 and, on the same day, he appointed eleven senators to Seanad Éireann. The question of whether the Seanad can sit as a House of the Oireachtas in the absence of the nominated senators was accordingly no longer a live one as of the date of delivery of this judgment. Nonetheless, the Court found that the issues which were so fully debated before the Court in the course of the hearing on 24th and 25th June 2020 could arise again and might affect one or more of the plaintiff senators in the same way in future; moreover, it was undoubtedly a question of exceptional public importance. Accordingly, notwithstanding the events of 27th June 2020, the Court decided to determine the issues raised.

Held by Irvine P that Article 18.1 clearly and unambiguously means that the institution or organ of State, Seanad Éireann, created by the Constitution, must be comprised of sixty members, eleven of whom are nominated and forty-nine of whom are elected; this arises both from the wording of Article 18.1 itself, the other provisions of Article 18 and a consideration of Articles 5, 6, and 15. The Court rejected the plaintiffs’ contention, primarily based on a construction of Article 18.8, that the Seanad is permitted to sit before the Taoiseach has nominated the eleven members provided for in Article 18.1.

Irvine P held that the first meeting of the Seanad may only lawfully take place when all sixty members identified in Article 18.1, elected and nominated, are in place.

Judgment approved.

Judgment of the Divisional Court delivered on 29 th June 2020
The issue before the court
1

While a number of constitutional issues arise for consideration in these proceedings, the most fundamental issue before the court relates to whether Seanad Éireann may sit as a House of the Oireachtas notwithstanding the fact that, at the date the proceedings were brought and heard, the complement of Senators was composed solely of those recently elected under Article 18.4 and did not include the eleven Senators to be nominated under Article 18.3 by the incoming Taoiseach (who had yet to be appointed, on the nomination of Dáil Éireann, under Article 13.1).

2

It should be noted that, after completion of the hearing on 25 th June 2020, Micheál Martin was elected Taoiseach of the 33 rd Dáil on 27 th June 2020 and, on the same day, he appointed eleven senators to Seanad Éireann. The question of whether the Seanad can sit as a House of the Oireachtas in the absence of the nominated senators is accordingly no longer a live one as of the date of delivery of this judgment. Nonetheless, the issues which were so fully debated before us in the course of the hearing on 24 th and 25 th June 2020 could arise again and might affect one or more of the plaintiffs in the same way in future. Moreover, it is undoubtedly a question of exceptional public importance. Accordingly, notwithstanding the events of 27 th June 2020, we have decided to determine the issues raised.

How the issue arose
3

The issues arose against the backdrop of the general election which took place on 8 th February 2020 for Dáil Éireann and the consequent general election for the Seanad which commenced on 30 th March 2020. In the latter election, forty-nine senators were elected to the Seanad. That did not complete the complement of sixty senators contemplated by Article 18 of the Constitution. The remaining eleven senators were not nominated until 27 th June 2020 following the election of Micheál Martin as Taoiseach on the same date.

4

During the interregnum between the election on 8 th February 2020 and the election of Micheál Martin on 27 th June 2020, the outgoing Taoiseach continued to perform the duties of that office in accordance with Article 28.11 of the Constitution. However, as explained in more detail below, a continuing Taoiseach. performing duties under Article 28.11. does not have the power under Article 18.3 to nominate the eleven nominated senators. That power resides solely in a newly elected Taoiseach.

Relevant facts
5

Under Article 18.8 of the Constitution a general election for Seanad Éireann is required to take place not later than 90 days after a dissolution of Dáil Éireann. For that reason, a general election to the Seanad was occasioned by the dissolution of Dáil Éireann by proclamation of the President dated 14 th January 2020. The same proclamation also summoned the newly-elected Dáil to meet on 20 th February 2020. Following the President's proclamation, a general election to Dáil Éireann took place on 8 th February 2020.

6

The polling day for the general election to the Seanad was duly fixed for 30 th March 2020. In the intervening period up to 29 th March 2020 those persons who were members of Seanad Éireann immediately prior to the dissolution of the Dáil, continued to hold office in accordance with the provisions of Article 18.9 (which expressly provides for the continuance in office of outgoing senators until “ the day before the polling day of the general election for Seanad Éireann“).

7

Because the members of the Seanad continued to hold office up to 29 th March 2020, and because the incoming Dáil could sit and vote, despite the fact that no new Taoiseach had been elected, legislation could be enacted in the normal way up to 29 th March 2020. However, from that date, the outgoing senators no longer held office and could not therefore participate in the legislative process. As a consequence, no further legislation could be enacted as Article 20 stipulates a role for both Houses of the Oireachtas in the enactment of legislation.

8

In the course of the general election for the Seanad, each of the plaintiffs was elected a member of Seanad Éireann. However, the first meeting of the Seanad after the general election has not yet taken place. Under Article 18.8, the first meeting of the Seanad is to take place on a day to be fixed by the President on the advice of the Taoiseach. Article 18.8 provides as follows:

A general election for Seanad Éireann shall take place not later than ninety days after a dissolution of Dáil Éireann, and the first meeting of Seanad Éireann after the general election shall take place on a day to be fixed by the President on the advice of the Taoiseach“.

9

Article 18.1 prescribes the composition of the Seanad and provides as follows:

“1. Seanad Éireann shall be composed of sixty members, of whom eleven shall be nominated members and forty-nine shall be elected members”.

10

As noted above, in accordance with Article 28.11, the Taoiseach in office at the date of dissolution of the Dáil on 14 th January 2020 continues to cany out the duties of Taoiseach and to hold office until his or her successor has been elected by the Dáil. Article 28.11 of the Constitution makes this clear, providing as follows:

“1. If the Taoiseach at any time resigns from office the other members of the Government shall be deemed also to have resigned from office, but the Taoiseach and the other members of the Government shall continue to carry on their duties until their successors shall have been appointed.

2. The members of the Government in office at the date of a dissolution of Dáil Éireann shall continue to hold office until their successors shall have been appointed.”

11

Although the Taoiseach in place prior to the election of 8 th February 2020 continued to act in accordance with Article 28.11, he did not have power to nominate those members of the Seanad who, in accordance with Article 18.3, are required to be nominated, with their prior consent, by the Taoiseach. The language of Article 18.3 makes this clear. It requires that the nomination is to be made by the...

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