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

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian O'Moore
• Judgment Date: 17 November 2021
• Neutral Citation: [2021] IEHC 716
• Court: High Court
• Docket Number: [2019/893 JR]

Between

Tomás Heneghan

Plaintiff

and

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

Defendants

[2021] IEHC 716

[2019/893 JR]

THE HIGH COURT

Election – Seanad Éireann – Legislation – Plaintiff seeking a declaration that Irish law is inconsistent with the defendants’ obligations under the European Convention on Human Rights – Whether the system for the election of the forty three vocational panel senators, as provided for in the Seanad Electoral (Panel Members) Act 1947, and the system for the election of the six university panel senators, as provided for in the Seanad Electoral (University Members) Act 1937 are invalid

Facts: Eleven members of Seanad Éireann are nominated by the incoming Taoiseach. The remaining forty nine senators are elected members of the Seanad. Six of these are to be elected by institutions of higher education. Forty three members of Seanad Éireann are elected from panels of candidates. There are five vocational panels. The plaintiff, Mr Heneghan, claimed that he was entitled to be an elector in respect of the university panels and in respect of the vocational panels. Under the legislation, he was not entitled to vote in respect of either set of panels, and he said that the failure to facilitate his registration as an elector in respect of those panels was unlawful. He relied upon the provisions of Bunreacht na hÉireann and the provisions of the European Convention on Human Rights. Mr Heneghan’s counsel reduced to three the essential issues in the case: “The first issue is whether section 44 of the Seanad Electoral (Panel Members) Act 1947 in excluding citizens such as the Plaintiff who are not members of the Oireachtas or local government from voting in Seanad general elections disproportionally interferes with his rights under the Constitution (Articles 18.4.2°, 5, 6, 40.1, 40.3.1°, 40.3.2° and 40.6.1°.i thereof) and is therefore unconstitutional. The second issue, is whether section 6 (1) and (2) and section 7 of the Seanad Electoral (Universities Members) Act 1937 are unconstitutional in precluding graduates of University of Limerick from voting in elections to the university seats, whilst permitting graduates of two other universities, namely National University of Ireland and University of Dublin, to so vote. The third issue is whether the said provisions of the 1937 Act are compatible with Article 3 of Protocol 1 (right to free elections), taken in conjunction with Article 14 (Prohibition on Discrimination) of the European Convention on Human Rights”. The defendants, the Minister for Housing, Planning and Local Government, the Government of Ireland, the Attorney General and Ireland, added a fourth issue: “Given that the making of provision for the election of the elected members of Seanad Éireann beyond that prescribed by the Constitution itself are expressly reserved to the Oireachtas by Articles 18.4.2° and 18.10.1° of the Constitution, and in consequence of and by reason of the separation of powers under the Constitution, the current claim is not a justiciable one”.

Held by the High Court (O’Moore J) that the system for the election of the forty three vocational panel senators, as provided for in the Seanad Electoral (Panel Members) Act 1947 was not invalid having regard to the provisions of the Constitution. O’Moore J held that the system for the election of the six university panel senators, as provided for in the Seanad Electoral (University Members) Act 1937 was not invalid having regard to the provisions of the Constitution. O’Moore J held that Mr Heneghan was not entitled to a declaration that the relevant Irish law was inconsistent with the State’s obligations under the European Convention on Human Rights.

O’Moore J held that Mr Heneghan had not established an entitlement to any of the reliefs sought by him in the proceedings.

Reliefs refused.

JUDGMENT of the Divisional Court delivered by Mr. Justice Brian O'Moore on the 17th day of November 2021

A. BACKGROUND

1 Bunreacht na hÉireann provides for an Upper House of the Oireachtas, Seanad Éireann, composed of sixty members. Eleven members of the Seanad are nominated by the incoming Taoiseach who in turn is elected by the members of Dáil Éireann after a general election.

2 The remaining forty nine senators are elected members of the Seanad. Six of these are to be elected by institutions of higher education. Importantly for the purpose of the current proceedings, three of the six are currently elected by the National University of Ireland, and the remaining three of the six are elected by the University of Dublin.

3 Forty three members of Seanad Éireann are elected from panels of candidates. There are five vocational panels, as set out in Article 18.7.1° of the Constitution, namely:-

• (i) National language and culture, literature, art, education and such professional interests as may be defined by law for the purpose of this panel;

• (ii) Agriculture and allied interests, and fisheries;

• (iii) Labour, whether organised or unorganised;

• (iv) Industry and commerce, including banking, finance, accountancy, engineering and architecture;

• (v) Public administration and social services, including voluntary social activities.

4 Again, importantly for the purpose of these proceedings, the electorate in respect of these forty three members of Seanad Éireann is composed of incoming members of Dáil Éireann, outgoing members of Seanad Éireann, and members of local authorities.

5 In essence, the claim made by the Plaintiff (Mr. Heneghan) in these proceedings is that he is entitled to be an elector in respect of the university panels and in respect of the vocational panels. Under current legislation, he is not entitled to vote in respect of either set of panels, and he says that the failure to facilitate his registration as an elector in respect of these panels is unlawful. In alleging that his exclusion as an elector is unlawful, he relies upon the provisions of Bunreacht na hÉireann and the provisions of the European Convention on Human Rights.

6 In Mr. Heneghan's Amended Statement of Claim, he seeks over twenty substantive reliefs; these, in turn, are based upon a wide range of grounds (both factual and legal). Notwithstanding the breath of the claims made in the pleadings, it was possible for Mr. Heneghan's Counsel (in their written submissions) to reduce to three the essential issues in the case. These three issues are:-

“The first issue is whether section 44 of the Seanad Electoral (Panel Members) Act 1947 in excluding citizens such as the Plaintiff who are not members of the Oireachtas or local government from voting in Seanad general elections disproportionally interferes with his rights under the Constitution (Articles 18.4.2°, 5, 6, 40.1, 40.3.1°, 40.3.2° and 40.6.1°.i thereof) and is therefore unconstitutional.

The second issue, is whether section 6 (1) and (2) and section 7 of the Seanad Electoral (Universities Members) Act 1937 are unconstitutional in precluding graduates of University of Limerick from voting in elections to the university seats, whilst permitting graduates of two other universities, namely National University of Ireland and University of Dublin, to so vote.

The third issue is whether the said provisions of the 1937 Act are compatible with Article 3 of Protocol 1 (right to free elections), taken in conjunction with Article 14 (Prohibition on Discrimination) of the European Convention on Human Rights (the “Convention”).”

7 In their pleadings and submissions, the Defendants (the State) do not dispute the accuracy of this summary of Mr. Heneghan's claim, but the State adds a fourth issue (itself foreshadowed in the written submissions on behalf of Mr. Heneghan). This fourth issue is:-

“Given that the making of provision for the election of the elected members of Seanad Éireann beyond that prescribed by the Constitution itself are expressly reserved to the Oireachtas by Articles 18.4.2° and 18.10.1° of the Constitution, and in consequence of and by reason of the separation of powers under the Constitution, the current claim is not a justiciable one.”

8 In very general terms, these four issues are the ones in dispute between Mr. Heneghan and the State in these proceedings. This judgment approaches the resolution of these issues in the following order:-

• (i) Mr. Heneghan.

• (ii) The procedural history of the claim.

• (iii) The evidence.

• (iv) The Courts overall approach to the evidence.

• (v) The Vocational Panels.

• (vi) The University Panels.

• (vii) The European Convention on Human Rights.

• (viii) The Court's conclusions.

B. MR. HENEGHAN

9 Mr. Heneghan grew up in Galway. In 2010, he began studying at the University of Limerick. In January 2015, Mr. Heneghan graduated from the University of Limerick with a Bachelor of Arts (Joint Honours) degree. This was not the end of his studies and, in January 2018, he graduated from the University of Limerick with a Master of Arts in Journalism. At the time of the hearing of his claim, Mr. Heneghan worked as an executive officer in the public service.

10 In September 2013 Mr. Heneghan campaigned with a group called Democracy Matters “to retain and reform the Seanad” as he puts it in one of his four Affidavits. Democracy Matters had originally been called the “Seanad Reform Group”. Its founders were Michael McDowell, Catherine Zappone, Joe O'Toole (all of whom were Senators or former Senators), the late Fergal Quinn (also a former Senator) and the late Noel Whelan described by Mr. Heneghan as “Fianna Fail activist and political pundit”. The group had been set up to oppose the proposal of the Government in 2013 to abolish the Seanad.

11 Mr. Heneghan campaigned with this group for two reasons. Firstly, he believed that a second legislative chamber was good for democracy. Secondly, he had the “firm belief that should...