Tomás Heneghan v The Minister for Housing, Planning & Local Government and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Donnell
• Judgment Date: 26 July 2023
• Neutral Citation: [2023] IESC 18
• Court: Supreme Court
• Docket Number: S:AP:IE:2022:000006

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

[2023] IESC 18

O'Donnell C.J.

Dunne J.

Charleton J.

O'Malley J.

Baker J.

Hogan J.

Murray J.

S:AP:IE:2022:000006

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Suspension – Unconstitutionality – Seanad Electoral (University Members) Act 1937 ss. 6 and 7 – Parties making submissions on the length of any period of suspension of a declaration of invalidity of ss. 6 and 7 of the Seanad Electoral (University Members) Act 1937 – Whether a single, relatively lengthy period of suspension was required

Facts: The Supreme Court (Murray J), on 31 March, 2023, concluded that ss. 6 and 7 of the Seanad Electoral (University Members) Act 1937 were inconsistent with the provisions of Article 18.4.2° of the Constitution: [2023] IESC 7. The Court declared the invalidity of the sections, but made it clear that the effect of the declaration of invalidity must be wholly prospective. The Court suspended the effect of that declaration until 31 July, 2023, and invited submissions from the parties as to the precise length of time for any suspension to allow the position to be remedied. The appellant, Mr Heneghan, contended that the declaration should be suspended until July 2024; that was effectively one year with what was described as a red line of 25 May, 2025 (approximately just over two years after the date of the delivery of the judgment) as the last possible date for the election of the next Seanad. This followed from a calculation of the last possible date for the dissolution of the Dáil as February 2025, the Constitution requiring by Article 18.8, that a general election for Seanad Éireann shall take place not later than ninety days after the dissolution of Dáil Éireann. The contention of the Attorney General, on behalf of the State respondents, was that the declaration should be suspended until 30 July, 2027, thus extending the period of suspension by a period of four years. This period was calculated by reference to the period of time that the State parties considered to be necessary to take the appropriate steps to devise, draft, enact, and implement remedial legislation.

Held by O'Donnell CJ that the effect of the decision of the Court of 31 March, 2023, was to find that the State, through its Executive and Legislative organs, was in breach of its constitutional duty under Article 18.6 to enact a law compliant with the Constitution to provide for election to the university seats of Seanad Éireann, and also in breach of the specific obligation imposed under Article18.6.2° by the people in 1979 to make provision for such election on an expanded basis. O'Donnell CJ noted that the obligation to perform that duty had applied since the constitutional breach of duty was established on 31 March, 2023. O'Donnell CJ held that this duty applied and was not in any way affected by a suspension of a declaration of unconstitutionality of specific statutory provisions. O'Donnell CJ found that it had been established that the Court has, in rare cases, a jurisdiction to defer, postpone or suspend a declaration of constitutional invalidity of any statutory provision, where to make an immediate declaration of such invalidity would imperil the rule of law, and remove the possibility of the invalidity being capable of being remedied. O'Donnell CJ held that this was one such case. O'Donnell CJ held that the immediate invalidity of ss.6 and 7 of the 1937 Act would give rise to a real possibility that curative legislation might not be capable of being enacted, with the consequent inability to elect an Oireachtas consistent with the Constitution and rendering it incapable of enacting any legislation. The Court, having received submissions from the parties on the length of any period of suspension of a declaration of invalidity of the relevant sections, considered that a single, relatively lengthy period of suspension was required, and appropriate.

O'Donnell CJ suspended a declaration of the invalidity of ss. 6 and 7 of the 1937 Act until 31 May, 2025.

Judgment approved.

Judgment of Mr. Justice O'Donnell, Chief Justice delivered on the 26 ^th day of July, 2023.

1 . On 31 March of this year, this Court, in a judgment of Murray J. (with whom O'Donnell C.J., Dunne, O'Malley and Baker JJ agreed; Hogan J. concurring separately; Charleton J. dissenting) concluded that s. 6 and s. 7 of the Seanad Electoral (University Members) Act, 1937 (“the 1937 Act”) were inconsistent with the provisions of Article 18.4.2° of the Constitution: see Heneghan v. Minister for Housing, Planning & Local Government & ors [2023] IESC 7 (Unreported, Supreme Court, O'Donnell C.J., Dunne, Charleton, O'Malley, Baker, Hogan and Murray JJ., 31 March, 2023) (“ Heneghan No. 1”). Article 18.4.2° was inserted into the Constitution by a referendum approved by the people in 1979. The inconsistency arose because the provisions of the 1937 Act limited the electorate in respect of the six university seats to graduates of the University of Dublin and the National University of Ireland. While that was consistent with the provisions of Article 18.4 up until 1979 the new sub-article inserted then, 18.4.2°, provided for the enactment of laws allowing the extension of the University franchise to institutions of higher education other than Trinity College Dublin and the National University of Ireland. While the terms of Article 18.4.2° did contemplate that the Oireachtas would have some time to implement the change to the franchise authorised by the 1979 referendum, by the time the principal judgment came to be delivered it was not necessary to identify with any precision the point at which the Oireachtas was in default. As it was put at paragraph 157 of the judgment of Murray J., “on any version it has long since expired”.

2 . However, notwithstanding this conclusion, the Court did not proceed to make a declaration of the invalidity of s. 6 and s. 7 of the 1937 Act with immediate effect. Instead, the Court declared the invalidity of the sections, but made it clear (at paragraph 159 of the judgment) that the effect of the declaration of invalidity must be wholly prospective. Moreover, the Court suspended the effect of that declaration until 31 July, 2023, and invited submissions from the parties as to the precise length of time for any suspension to allow the position to be remedied. The Court must now address that issue and make an appropriate order.

3 . Neither party contests either the terms of any declaration or the need for a suspension of any declaration of invalidity. The main, and almost sole ground of dispute relates to the period of any such suspension. The appellant contends that the declaration should be suspended until July 2024 – that is effectively one year from now with what is described as a red line of 25 May, 2025 (approximately just over two years after the date of the delivery of the judgment) as the last possible date for the election of the next Seanad. This follows from a calculation of the last possible date for the dissolution of the current Dáil as February 2025, the Constitution requiring by Article 18.8, that a general election for Seanad Éireann shall take place not later than ninety days after the dissolution of Dáil Éireann. The contention of the Attorney General, on behalf of the State respondents, is that the declaration should be suspended until 30 July, 2027, thus extending the period of suspension by a period of four years. This period is calculated by reference to the period of time that the State parties consider to be necessary to take the appropriate steps to devise, draft, enact, and implement remedial legislation.

4 . In written submissions, the Attorney General addresses the nature of the jurisdiction to suspend the declaration of invalidity, and in a footnote, reserves his position pending further argument on the appropriateness of the remedy of suspended declarations of invalidity, either in general, or at all. I do not consider that it is possible, or if possible, desirable, to proceed in this way. It is necessary to address this issue given that it has been raised as it goes to the jurisdiction that the Court is invited to exercise, to suspend the declaration of invalidity consequent on the Court's judgment for a period of between two and four years. In any event, even if it were appropriate to proceed on the parties' acceptance that a jurisdiction does exist, an understanding of the nature of this remedial device, and its limits, are a necessary, indeed essential, backdrop to any suspension decision.

5 . Both the principal judgment and the separate judgment of Hogan J. addressed the issue in some detail by reference to both Irish and international jurisprudence. In Ireland, it appears that the first occasion on which an order akin to suspended declaration was made was in N.H.V. v. Minister for Justice and Equality [2017] IESC 35, [2018] 1 I.R. 246 (“ N.H.V.”) (although it was there treated as a deferral of a declaration). The mechanism has been employed on one further occasion by this Court before now: P.C. v. The Minister for Social Protection and ors (No. 2) [2018] IESC 57, (Unreported, Supreme Court, Clarke C.J., O'Donnell, McKechnie, MacMenamin and O'Malley JJ., 28 November, 2019) (“ P.C. (No. 2)”). It has also been availed of on two occasions in the Court of Appeal: A.B. v. The Clinical Director of St. Loman's Hospital and ors [2018] IECA 123, [2018] 3 I.R. 710 and Osinuga and Agha and ors v. Minister for Social Protection and ors [2018] IECA 155, [2018] 2 I.L.R.M. 351.

6 . The starting point is Article 15.4 of the Constitution, which provides that the Oireachtas shall not enact a law which is in any way repugnant to the Constitution. This provision must be read with Article...