Supreme Court pauses Seanad election invalidity declaration

The Supreme Court has decided to defer for two years the activation of its declaration that found legislation limiting voting in the university Seanad election to two third-level institutions was invalid.

Last March 31st, the seven-judge court held that sections 6 and 7 of the 1937 Seanad Electoral (University Members) Act 1937 were inconsistent with the Constitution.

This was in circumstances where a constitutional amendment was passed in 1979 that provided for the expansion of the electorate for university seats but the Oireachtas failed to enact legislation giving effect to the amendment.

As a result, the franchise continued to be held only by graduates of Trinity College and the National University of Ireland universities.

The Supreme Court, following its March 31st decision, decided to defer the activation of the decision to give the parties – University of Limerick graduate Tomás Heneghan and the Minister for House, Planning and Local Government, the Government of Ireland, the Attorney General and Ireland – an opportunity to make submissions on what length of time the deferral should be for.

Mr Heneghan, represented by lawyers from the Free Legal Advice Centres (FLAC), argued it should be for as little time as possible. Rosario Boyle SC, for Mr Heneghan, said the deferral should only be to July 2024 with a “red line” possible further extension to May 2025.

Attorney General Rossa Fanning, representing all the respondents, said there should be a deferral until July 2027 because of the time required to bring in the necessary legislation. At a minimum, he said, the deferral should be until July next year with further extensions if required, he said.

On Wednesday, Chief Justice Donal O’Donnell, delivering the unanimous decision to extend the suspension to May 31st, 2025, said the court considered that a single, relatively lengthy period of suspension was required.

The judge said the court’s March 31st judgment meant the duty of the State to enact legislation to expand the franchise applied from the date of delivery of the judgment and was unaffected by any question of suspension.

However, he said, it was clear the court has, in rare cases, a jurisdiction to defer, postpone or suspend a declaration of constitutional invalidity in circumstances where an immediate declaration would “imperil the rule of law and remove the possibility of the invalidity being capable of being remedied”.

He said this was one such case as an immediate declaration would give rise to a real possibility that curative legislation may not be capable of being enacted before the Dáil is dissolved and a Seanad election called, with the consequent inability to elect an Oireachtas consistent with the Constitution and rendering it incapable of enacting legislation.

Mr Heneghan, who claimed the State’s failure to facilitate his registration as an elector was unlawful and unconstitutional, lost his action when it was heard before a three-judge divisional High Court. That court made no order as to the costs of that case which meant both sides paid their own costs.

The Supreme Court on Wednesday was told the State side had agreed to pay the costs of the Supreme Court appeal up until March 31st when the decision was given but opposed the Heneghan side’s application for costs. The State also said the High Court costs order should also stand.

The Chief Justice said that in light of this, the court would invite short written submissions from the parties on costs and would then decide whether an oral hearing was necessary.