On 26 July 2023, the Supreme Court utilised its jurisdiction to suspend a declaration of invalidity in respect of sections 6 and 7 of the Seanad Electoral (University Members) Act, 1937 (the ‘1937 Act’) until 31 May 2025. The Court previously ruled on 31 March 2023 that the State had been mandated by the passage of the Seventh Amendment to expand the Seanad University Panel franchise beyond graduates of Trinity College Dublin and the National University of Ireland, but it also recognised that to immediately declare as invalid the provisions of the 1937 Act that permitted the current situation risked rendering the Oireachtas “incapable of enacting any legislation”. That acknowledged, O’Donnell CJ emphasised the Court’s concern with “limiting the period of permitted operation of the invalid law so far as is possible”. The Court ultimately agreed with the appellant’s submission that “a single, relatively lengthy period of suspension is required” and set a deadline of 31 May 2025, rejecting the State’s request for an extension until 30 July 2027.
The substantive proceedings in this matter were brought by Tomás Heneghan, a graduate of the University of Limerick and a lay litigant who then had his case taken on by Free Legal Advice Centres (‘FLAC’).
Although the Court acknowledged that its jurisdiction to make suspended declarations of invalidity was “rare”, it emphasised that this jurisdiction was “established… 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”. Importantly, it also noted that the State’s obligation to perform its duty to enact remedial legislation applied since 31 March 2023, and “is not in any way affected by a suspension of a declaration of unconstitutionality of specific statutory provisions”.
Commenting on the Court’s 26 July decision, FLAC’s Managing Solicitor Sinéad Lucey noted:
“The deadline set by the Court aligns with the date by which the next Seanad election must be held – with the intention that the necessary reforms to voting laws are enacted before that election takes place. It also ensures that any Seanad elections after May 2025 must involve an expanded franchise for the University Panel.
“The Chief Justice’s decision is another significant judgment to emerge from these proceedings and provides an authoritative statement on the Court’s power to make suspended declarations including when and how it may do so.”
FLAC Chief Executive Eilis Barry congratulated Mr Heneghan “on his courage, fortitude and persistence in taking this landmark case for democracy, equality and the rule of law.”
Click here for the judgment in Tomás Heneghan v The Minister for Housing, Planning & Local Government & Others [2023] IESC 18.