Glossary
Ceann Comhairle [presiding officer of the lower and popularly elected house]
Seán Ó Fearghaíl, the Ceann Comhairle, has informed his colleagues, that in light of “a very serious constitutional problem,”[1] the Seanad will be unable to pass legislation after Sunday. He is supported by advice offered from the Attorney General and the Secretary General of the Department of the Taoiseach.[2] The single argument which has been put forward in public in support of the Ceann Comhairle’s position is not entirely frivolous. It is the sort of argument beloved by legal academics giving final examinations based on fictitious fact patterns. Such arguments usually do not play prominent roles in the legal advice offered by officers of state, senior law officers, and highly placed civil servants during national and international emergencies. I respectfully suggest the Attorney General has erred, and the Ceann Comhairle erred in relying on such advice.[3]
Ceann Comhairle [presiding officer of the lower and popularly elected house]
Oireachtas [the Irish Parliament]
Taoiseach [the Prime Minister]
Seanad Éireann or Seanad [the upper house
or senate]
Dáil Éireann or Dáil [the lower and
popularly elected house]
Bunreacht na hÉireann [the Irish Constitution]
Bunreacht na hÉireann [the Irish Constitution]
Seán Ó Fearghaíl, the Ceann Comhairle, has informed his colleagues, that in light of “a very serious constitutional problem,”[1] the Seanad will be unable to pass legislation after Sunday. He is supported by advice offered from the Attorney General and the Secretary General of the Department of the Taoiseach.[2] The single argument which has been put forward in public in support of the Ceann Comhairle’s position is not entirely frivolous. It is the sort of argument beloved by legal academics giving final examinations based on fictitious fact patterns. Such arguments usually do not play prominent roles in the legal advice offered by officers of state, senior law officers, and highly placed civil servants during national and international emergencies. I respectfully suggest the Attorney General has erred, and the Ceann Comhairle erred in relying on such advice.[3]
Article 18 of the Constitution provides: Seanad Éireann shall be
composed of sixty members, of whom eleven shall be nominated members and
forty-nine shall be elected members.[4] And, The
nominated members of Seanad Éireann shall be nominated … by the Taoiseach who
is appointed next after the reassembly of Dáil Éireann following [its]
dissolution ….[5] Ireland has had a general election,
but a newly appointed Taoiseach has not emerged from multiparty negotiations.
Absent a new Taioseach, the Seanad will lack both its eleven nominated members
and its full complement of sixty members. The argument runs that an
incompletely constituted Seanad cannot meet and vote, and thus
legislation—requiring action by both houses of the Oireachtas—cannot take
place.
There are any number of problems with this argument.
First, Article 18 states how the Seanad should be constituted. It does
not expressly state what are the consequences for failing to reach the
aspirational ideal of sixty members. Nothing in the Constitution states if you
do not have sixty members duly appointed and elected when the Seanad convenes,
then the Seanad is precluded from meeting, voting, and enacting
legislation.
Second, the Irish Constitution’s text strongly implies that the Seanad
may lawfully enact legislation in such circumstances. Article 15 states: The
number of members necessary to constitute a meeting of either House for the
exercise of its powers shall be determined by its standing orders.[6]
Likewise, Seanad Standing Order 19(1) provides: The quorum necessary to
constitute a meeting of the Seanad shall be six Senators.[7]
Because 49 exceeds 6, because a quorum will be present, even if there are no
Seanad members nominated by a newly appointed Taoiseach, the Seanad retains the
power to lawfully meet, vote, and enact legislation.
Third, as the Irish courts have repeatedly explained, Ireland is a
“sovereign and democratic”[8]
state. The key word is “democratic”. If the unfortunate circumstances connected
to the current pandemic had prevented the election of the forty-nine elected Seanad members, even if a quorum
otherwise remained from the eleven nominated
members, then that would be a matter of genuine constitutional concern. Such a
rump Seanad would lack democratic bona fides. But where the Seanad only lacks
its nominated members—that should be a matter of little or no consequence to a
democratic state.
Fourth, if the Seanad meets, votes, and enacts legislation in these
circumstances (in conjunction with the Dáil and the President), such
legislation is very likely to be upheld by the courts. Legislators take an oath
to uphold the Constitution. Their views on this contestable issue will receive
deference from the courts. Their work-product is entitled to a presumption of
constitutionality. Meeting, voting, and enacting legislation in these
circumstances is not indicative of anything remotely approaching an objective
or subjective clear disregard of constitutional norms. Additionally, as a
matter of general parliamentary law, courts follow the so-called “enrolled bill
rule.” That rule teaches that purported defects in legislative processes are
not used by the courts to nullify legislation—as long as the presiding officers
of the legislative chambers attest that the legislation has passed their
respective houses. The Irish courts have not opined on this specific point of
parliamentary law. However, the Supreme Court of Ireland has come close to
adopting this position when vetting constitutional amendments.[9]
Likewise, the Irish courts regularly cite foreign case law as persuasive. The
enrolled bill rule is well established by the courts in other Western democracies.[10]
I doubt it would be rejected here.
There is one final reason to reject the position put forward by the
Attorney General and the Ceann Comhairle. The members of the Seanad get paid.
That means they have to do work. And if the members of the Seanad embrace a
let’s pretend legal argument to escape doing the work they told their
constituents they would do, and they do so during a national emergency,
then they all have to go. And if that social contract is not part of Bunreacht
na hÉireann, then it ought to be. It really ought to be.
Seth
Seth Barrett Tillman, Can the Oireachtas
Legislate During the Pandemic?, New Reform Club (Apr. 2, 2020, 9:52 AM), <https://reformclub.blogspot.com/2020/04/can-oireachtas-legislate-during-pandemic.html>.
The original article (which is much like what is
posted here) appeared in the Irish Law Times, but it appeared in the ILT
without footnotes. See Seth Barrett Tillman,
COVID-19: Can the Oireachtas Legislate During the Pandemic?, 38(7) Irish Law Times
94 (2020), <https://ssrn.com/abstract=3561117>.
A response: Gerard
Hogan (European Court of Justice Advocate-General, former Justice of the Irish
High Court and Court of Appeal) & Hilary Hogan, Legal and Constitutional Issues arising from the 2020 General Election,
63 Irish Jurist (forth. circa June
2020) (manuscript at 23 & n.47, 25–26 & n.52, 36 & n.79),
<https://ssrn.com/abstract=3587047>.
** Seth Barrett Tillman, Lecturer, Maynooth University
Department of Law. Roinn Dlí Ollscoil Mhá Nuad. Harvard Law School JD (2000),
cum laude; University of Chicago BA (1984), with honours.
[1] Hugh O’Connell, ‘“A very serious constitutional problem”—Politicians cannot pass any new laws after Sunday’ The Irish Independent (Dublin, 25 March 2020, 10:57 AM), <https://tinyurl.com/wcfw9py>.
[2] See id.
[3] I am not the only academic
to arrive at this conclusion. See Oran
Doyle and Tom Hickey, ‘Oireachtas can
pass laws in the public interest without Taoiseach Seanad nominees’ The
Irish Times (Dublin, 26 March 2020, 14:59 PM), <https://tinyurl.com/sr5vdou>.
[4] Article 18.1.
[5] Article 18.3.
[7] ‘Seanad Éireann Standing
Orders Relative to Public Business 2017’ (Houses
of the Oireachtas), <https://tinyurl.com/u8ucjde> accessed 29 March 2020.
[8] Haughey v Moriarty [1998] IESC 17, [1999] 3 IR 1, 32 (Hamilton,
CJ).
[9] See Finn v Attorney General and Minister for the Environment [1983]
IR 154 (SC) 164 (O’Higgins, CJ). See
generally Oran Doyle, Constitutional
Law: Text, Cases and Materials (Clarus Press 2009) 406–07 (“Although
Barrington J [in the High Court in Finn]
accepted that the courts could review such a flawed procedure [during passage
in the Oireachtas], the dicta of the Supreme Court suggested that judicial
intervention in such circumstances would not be permissible.”).
[10] See, e.g., Field v Clark, 143 US 649 (1892); Edinburgh and Dalkeith Railway Co v Wauchope (1842) 8 ER 279 (HL).
It is doubtful that the Irish courts will find the United Kingdom decision (Edinburgh and Dalkeith Railway)
particularly persuasive—as it is based on local and peculiar conceptions of
parliamentary sovereignty having no parallel in Irish law. Albeit, as a
historical matter, the enrolled bill, under English law, can be traced back to The Prince’s Case, 8 Coke Reports 1, 13b,
(1605) 77 ER 496 (KB) and R v Countess of
Arundel (1615) 80 ER 258 (Ch). By contrast, the more recent decision of the
Supreme Court of the United States (Field
v Clark) is founded on more general policy concerns tied to the separation
of powers and good governance norms.