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Constitutional chaos?

The seminal Heneghan judgment has serious implications for the ability to elect an Oireachtas consistent with the Constitution. Lesley O’Neill takes the tally

The decision of the Supreme Court on 26 July 2023 in Heneghan v Minster for Housing, Planning and Local Government, Government of Ireland, Attorney General and Ireland ([2023] IESC 18) addressed the limited and rarified circumstances in which declaratory orders can be suspended by the court, with the Supreme Court permitting the suspension in that case to prevent and avoid “constitutional chaos”.

In Heneghan, the plaintiff (a graduate of the University of Limerick) asserted, among other things, that certain provisions of the Seanad Electoral (University Members) Act 1937, which limited the six so-called ‘university seats’ of the Seanad to graduates of the National University of Ireland and Trinity College Dublin, were inconsistent with the provisions of article 18.4.2 of the Constitution.

The plaintiff also asserted that the State had failed to enact enabling legislation to take account of the referendum passed in 1979 that permitted the extension of the Seanad university franchise to graduates other than those of the NUI and TCD and that the State’s failure to recognise and implement the result of the 1979 referendum constituted a further failure on its part.

It was also asserted that the required enabling legislation was neglected by successive governments, and it was accepted by the court that the time for enactment had “long since expired”, given some 44 years had passed since the 1979 referendum.

Remedy

Notwithstanding the court’s censure, it did not declare sections 6 and 7 of the 1937 act invalid with immediate effect, and ruled instead that its declaration of invalidity would instead remain suspended or postponed to allow the present Government to “allow the position to be remedied” – that is, to pass the requisite enabling legislation.

Hogan J asserted that it would not be practical or realistic to make a declaration of invalidity immediately effective, since it would “effectively render our democratic system positively unworkable”.

In deference to the separation of powers doctrine and keen not to step into the shoes of the legislature, the court acknowledged the difficulties it faced in formulating the period of suspension, given that the responsibility for the legislative process lies squarely with the Oireachtas and also given the administrative task associated with the creation of a new electoral register.

In considering the period of suspension, the court addressed its own jurisdiction to suspend declarations of invalidity, being guided by article 15.4.2, which asserts that “every law enacted by the Oireachtas, which is in any respect repugnant to this Constitution (or to any provision thereof) shall, but to the extent only of such repugnancy, be invalid”.

The court, in considering its jurisdiction to declare laws repugnant, held that it must exercise the utmost caution in suspending any such declaration, as to do so would permit the state of affairs to continue – that is, sections 6 and 7 of the 1937 act would remain in force, albeit for a specified and limited period.

As such, the court asserted that it must only suspend such rulings on rare occasions and acknowledged that the jurisprudence of the courts establishes that there are circumstances in which the retrospective “effect of a declaration of invalidity must be qualified”.

The court noted that it was necessary in Heneghan to avoid “constitutional crisis” and that the legislation in question was “part of the constitutional architecture of the State itself”.

Suspension

Accordingly, the court suspended its declaration of invalidity to 31 May 2025 to permit and facilitate the Oireachtas to enact new “curative” legislation, holding that, while the risk of the dissolution of the current Dáil before the curative legislation is in place was in its view “small”, that the consequences for the “constitutional structure (were) so final and fatal” that it was appropriate for the court in Heneghan to suspend its declaration of repugnancy.

The court considered the term of its suspension appropriate, being a “single, relatively lengthy period”.

However, it remains to be seen if the curative legislation can be passed and enacted in advance of the suspensory longstop date, noting that the court referred to international precedent that acknowledges that a “reasonably lengthy period of suspension is necessary where the incompatibility identified related to electoral provisions”.

Following the decision in Heneghan, the Seanad Electoral (University Members) (Amendment) Bill 2020 was initiated to provide for the extension of the franchise of the university panel of Seanad Éireann to all people who are over 18 and are holders of an appropriate third-level qualification from an Irish institute of higher education.

The bill proposes to amend (the soon to be invalidated) section 7 of the Seanad Electoral (University Members) Act 1937 to entitle every Irish citizen over 18 who has received a degree or diploma (as defined) to be registered as an elector in the register of electors for the university constituency.

The Heneghan judgment is considered seminal in terms of not just its analyses of articles 18 and 34 of the Constitution, but also in terms of the court’s review of its rarified jurisdiction to suspend declarations of invalidity.

It will also, it is argued, be indubitably associated with the creation of a reformed Seanad, which for the first time in its history will (if the curative legislation is enacted) extend the franchise to graduates other than those of NUI and TCD. 

The judgment is also to be considered seminal as it will ensure, once the curative legislation is enacted, the belated acknowledgement of the outcome of the 1979 referendum (some 44 years later) and will, as per Chief Justice O’Donnell in the ruling, direct the attention of the Oireachtas to its obligation to perform its constitutional duty to enact legislation – with the court again emphasising that it was appropriate in this rare case to suspend its ruling, as there was a real risk that, had it not, the curative legislation might not have been enacted in time and would, as a consequence, result in an inability to elect an Oireachtas consistent with the Constitution.

Lesley O’Neill is a solicitor with Blake & Kenny LLP, Galway.