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The Attorney General has urged the Supreme Court to further delay activating its declaration that found legislation restricting voting in the university Seanad election to two third-level institutions is invalid.
Rossa Fanning said the suspension of the court’s March declaration should be extended until July 2027 to give the Government time to pass appropriate legislation.*
Rosario Boyle SC, for Tomás Heneghan, who won the March decision, asked the court to grant as little time as possible so her client can have the right to vote in the next scheduled elections.
The extension should only be until July of next year, with a possible further “red line” extension to May 2025 – the date before which it is certain another general election will take place – for the legislation giving effect to the decision, she said.
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The seven-judge court said it hopes to give its decision before July 31st. In March it suspended activation of its declaration in order to give the Government an opportunity to change the law to give effect to the court’s decision.
The six-to-one majority decision found that the relevant sections of the Seanad Electoral (University Members) Act 1937 were invalid having regard to principles of law which the court should apply under Article 18.4.2 of the Constitution dealing with NUI and TCD representation. The effect of this article was to mandate the introduction by the Oireachtas of legislation to expand the franchise.
The passing of the Seventh Amendment to the Constitution Act in 1979 imposed a constitutional obligation on the State to revise and extend the university Seanad franchise within a reasonable time, the court also found.
The case was against the Minister for Housing Planning and Local Government, the Government of Ireland and the State who opposed the Supreme Court appeal brought by Mr Heneghan after a three judge divisional High Court dismissed his claim in 2021.
The case was back before the Supreme Court on Thursday to hear submissions on whether a further extension should be extended beyond July 31 next.
Mr Fanning, on behalf of all the State respondents, said without a lengthy extension it is possible that a future Seanad following a general election could be found to have been invalidly constituted because the remedying legislation to give effect to the March decision had not been passed.
In exchanges with the judges, Mr Fanning said the court should tend towards a longer extension until July 30 2027.
It was possible to end up in a “Catch 22″ situation where if a Seanad election took place after the expiry of a shorter extension that that Seanad could be found to have been invalidly constituted because the enlarged constituency had not voted, he said.
In its submissions, the State accepted court could, at a very minimum, grant an extension to July next year with further extensions if required.
However, it was not appropriate that the court should take on a supervisory role in regard to ensuring the legislation is enacted and he was proposing that a date of July 30, 2027, be set.
In other exchanges with the judges, Mr Fanning said if there was no “cushioning” period and an early general election was called, very serious consequences could arise.
The period of the extension must be looked at against the backdrop of a range of political options, he said. This was not like other constitutional decisions where there might be political consensus for changing the law to comply with a court decision, he said.
The Seventh Amendment was that graduates of UL and DCU should be allowed to vote but at a political level it would be extremely challenging to leave out the technical university sector and then possibly graduates of other third level institutions like the King’s Inns and the Royal College of Surgeons, he said. It has been speculated that if you added everyone, you could have a constituency for the university seats of more than a million graduates, he said.
In considering the extension period, the court had to take into account the process of passing legislation and the fact that there would be a very difficult task in compiling a new Electoral Register for the enlarged constituency, he said.
Ms Boyle, in her submissions for Mr Heneghan, argued the court has the jurisdiction to grant a declaration of invalidity that is expressly not final and to subsequently extend that suspension in exceptional circumstances.
Ms Boyle agreed with Ms Justice Elizabeth Dunne if it would be fair to say that the potential consequences if the required law was not introduced within the time limit laid down by the court is that there would be chaos and therefore the court should proceed with an abundance of caution.
In response to the judge’s question about the fact that politics can be very unpredictable, such as when there were three governments in a very short time in the early 1980s, Ms Boyle said her side accepted that and that was why the proper thing to do was pick a date that is presumptively final but which can be reacted to should the circumstances require.
It has been 40 years since the Seventh Amendment was passed and four years since her client took his case and it was incumbent on the State to do something and the court should not condone their failure to do so.
It was the absence of political consensus that got us to the position we are in now and the court should not allow its decision to feed into that, she said.
*This article was amended on July 1st, 2023