Tomás Heneghan v The Minister for Housing, Planning and Local Government, the Government of Ireland, the Attorney General and Ireland

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton,Mr. Justice Gerard Hogan,Mr. Justice Brian Murray
• Judgment Date: 31 March 2023
• Neutral Citation: [2022] IESC 7
• Docket Number: Record No. 2020/33
• Court: Supreme Court

Between

Tomás Heneghan

Plaintiff/Appellant

and

The Minister for Housing, Planning and Local Government, the Government of Ireland, the Attorney General and Ireland

Defendants/Respondents

[2022] IESC 7

O'Donnell CJ

Dunne J

Charleton J

O'Malley J

Baker J

Hogan J

Murray J

Supreme Court appeal number: S:AP:IE:2022:000006

High Court (Divisional Court) record number 2019/893 JR

[2021] IEHC 716

An Chúirt Uachtarach

The Supreme Court

Constitutional law – Election of members to Seanad – Ss. 6 and 7 of the Seanad Electoral (University Members) Act, 1937 – Article 18.4.2

Facts: The applicant claimed that Seanad Éireann had been composed in breach of article 18.4.2 of the Constitution. This provision was inserted in 1979 following a referendum which suggested a change in the election of certain members of the Seanad. As this change had not taken place, members were still elected on the basis of the Seanad Electoral (University Members) Act, 1937 (“the 1937 Act”). The applicant had brought proceedings seeking to challenge the first named respondent’s refusal to register him as a voter in Seanad elections. This claim was dismissed by the High Court in the decision of [2021] IEHC 716. The applicant now sought to appeal the portion of the High Court decision dealing with the constitutional validity of ss 6 and 7 of the 1937 Act.

Held by the Court, that the appeal would be allowed. Murray J. gave a judgment in which O'Donnell C.J., Dunne J., O'Malley J., Baker J. and Hogan J. concurred, with Charleton J. dissenting. Murray J noted the difficulty and importance of the case, and stated that the Court was required to interpret an opaque constitutional provision in the light of other articles and relevant materials. Having considered the Constitution, jurisprudence and legislative provisions at hand, Murray J. was satisfied that ss 6 and 7 of the 1937 Act were invalid as article 18.4.2 required the reconfiguration of the electorate to the Seanad.

Appeal allowed. The parties were invited to make submissions on the resulting orders and time needed to reconstitute the Seanad electorate.

Judgment ofMr Justice Peter Charletondelivered on Friday 31 March 2023

1 The purpose of this judgment is to indicate why, according to the analysis which follows, it is not appropriate to make the far-reaching order which the majority of the Court proposes. Instead, it is here posited that upon the passing by the People of the Seventh Amendment of the Constitution on 3 August 1979, a serious defect in the operation of our constitutional architecture occurred through the complete failure of the Government and the Oireachtas to respond to that referendum by considering what the will of the people had positively authorised in amending our fundamental law. In negation of fundamental democracy, in the aftermath of the positive vote to amend the Constitution, there was neither any parliamentary debate as to what the people had willed nor the sponsoring before either the Dáil or Seanad of any proposal as to how to respond to the vote of the people. On the analysis here offered, no judgment indicating any consequent obligation to legislate is possible on that referendum due to the wording of the amendment: but a fundamental political duty to consider and to take seriously the expression of the will of the people has arisen. Regrettably, a basic democratic obligation has been ignored. A declaration to that effect should issue: but only that declaration.

2 Essentially, a textual analysis of the Constitution, clearer in the Irish language structure, demonstrates that the actual amendment passed by the People by way of referendum is not capable of demanding of the Oireachtas that the representation of the graduates through the election of senators should be changed either in any particular manner or at all. That approach, however, does not detract from the obligation on the Oireachtas to consider and debate potential change to the electoral system consequent upon the people voting that the Constitution's text would be amended. As to what change, if any, should be made, any such decision was placed by the constitutional wording squarely within the sphere of political action.

3 Where this judgment differs from the majority is in analysing the text of the Constitution itself. Focus upon principles of statutory interpretation are inappropriate. The reason being that legislation reacts to and alters existing law, be it common law or a prior statute, or addresses issues that press for a political response that are unforeseen, and thus not covered, by prior law. Originating in crisis, political expediency, considered analysis as to policy or in response to gaps which emerge through litigation or in consequence of analysis, the reactive nature of legislation generates legal rules in utterly different contexts.

4 Consequently, rules have evolved whereby order in terms of analysis may be brought to bear on disparate laws emerging in situations often at odds with one another by way of the cannons of construction. Be those rules that of plain meaning, of presuming against unintended consequences, of bypassing absurdity or of contextual analysis, these are tools of analysis applicable to the chaotic emergence of laws through statutes separated in time, in motivation and in origin. Statutes require cannons of construction, whereby, as in this instance, and according to the majority, ‘may’ can be interpreted imperatively as ‘must’. But, those are rules that emerged in utterly different circumstances and are not applicable to the carefully thought-through and considered text of a fundamental law.

5 In complete contrast to how statutes are formulated and now laws are subject to amendment by the Oireachtas, the Constitution of 1937 was a closely considered and self-contained text: one where not only every word is given meaning but where the use of words is predicated on the choice of key phrases, each of which drives a conclusion to proper interpretation, and each being based on aspiration, obligation, guarantee, qualification or the granting of political choice as to action. It is precisely the latter which this amendment mandated: and no more. To interpret the choice of action as anything beyond a mandate by the people to the political power to consider and make a choice, including declining to make a choice so as to leave matters as they were pre-referendum, endangers not only a harmonious interpretation of the Constitution but also potentially trenches on the separation of powers.

Background

6 The background facts and the interaction of the text of the referendum proposal with the original constitutional provisions are set out in detail in the judgment of Murray J. What follows suffices for the purposes of this partial dissent.

7 Bills to amend the Constitution follow a distinct path. These, under Article 46 of the Constitution, are initiated only in Dáil Éireann but are required to be passed, or deemed to be passed, by both the Dáil and Seanad, though they cannot be signed into law unless a majority of the People in referendum accept the proposal under Article 47. Hence, the Seventh Amendment of the Constitution (Election of Members of Seanad Éireann by Institutions of Higher Education) Bill, a government proposal sponsored by the Minister for Education, was initiated and passed by both Houses of the Oireachtas, received “a majority of the votes cast at such Referendum” on 3 August 1979, as required by Article 47, and was signed into law by the President on that day. The Constitution was thereby amended.

8 The Bill contains the exact text of the new pieces of the Constitution to be slotted into Article 18. It is this Bill which is the “proposal for an amendment of this Constitution”, or in the Irish text of Article 46 and 47, “togra chun an Bunreacht seo a leasú”, upon which the people voted and which the people endorsed. Thus, the people agreed to slot into Article 18.4 text enabling provision “by law” for the election by “one or more” of Dublin University and the National University of Ireland and of “any other institutions of higher education in the State” of senators who could not exceed the original number of six senators in the original provision whereby Dublin University – commonly called Trinity College Dublin – graduates supplied three senators and National University of Ireland – Cork, Dublin and Galway – graduates supplied the other three. Hence, on the passing of the Seventh Amendment, there would still be six senators supplied by the institutions of higher education but the pool being broadened would mean the dilution of the original franchise. By the way, whereas the provision under the legislation (see ss 6 and 7 of the Seanad Electoral (University Members) Act 1937, which provide for the number of senators to be elected by each university constituency and that graduates will form the electorate in such elections respectively) is that graduates vote for six senators, the Constitution simply enables the election “on a franchise and in the manner to be provided by law”, meaning that, for example, the governing body may constitute the electors if this is so stipulated by the Oireachtas. The use of the word “franchise” mandates a democratic process, however, as opposed to some form of anointment by university presidents.

9 Two principles have been argued on behalf of Tomás Heneghan to be important in the context of the passing of a referendum. Firstly, it is claimed that a proposal to amend should be judged differently when slotted into the Constitution than when analysing the original text from 1937. Secondly, on his part it is asserted that, where there is ambiguity in the wording of text to be inserted into the Constitution, the form of the proposal on the ballot paper upon which the people voted should inform the meaning. In Roche v Roche[2009] IESC 82, [2010] 2 IR...