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The failure of the Oireachtas to implement the Seventh Amendment has been successfully challenged

Hotblack Desiato

https://www.rte.ie/news/courts/2023/0331/1367521-seanad-court/

The Seventh Amendment added the bolded text to Article 18.4 :

1º. The elected members of Seanad Éireann shall be elected as follows:

i. Three shall be elected by the National University of Ireland.

ii. Three shall be elected by the University of Dublin.

iii. Forty-three shall be elected from panels of candidates constituted as hereinafter provided.

2º. Provision may be made by law for the election, on a franchise and in the manner to be provided by law, by one or more of the following institutions, namely:

i. the universities mentioned in subsection 1 of this section,

ii. any other institutions of higher education in the State, of so many members of Seanad Éireann as may be fixed by law in substitution for an equal number of the members to be elected pursuant to paragraphs i and ii of the said subsection 1.

A member or members of Seanad Éireann may be elected under this subsection by institutions grouped together or by a single institution.

3º. Nothing in this Article shall be invoked to prohibit the dissolution by law of a university mentioned in subsection 1 of this section.

How does "Provision may be made by law" oblige the Oireachtas to legislate in a particular way?

NB I am not opposed to this change but curious as to the legal challenge and possible implications. We were told during the repeal of the 8th campaign (which I also supported) that the constitutional change did not oblige the Oireachtas to legislate (although it was almost certain that it would).

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coylemj

Agree with you. The wording specifically did not say 'Provision shall be made ....'. How did the Supreme Court take upon itself the power to effectively rewrite the section?

I can just imagine the collective groans from the administrators in DCU, UL etc. Who will now have to go through their register of graduates and collate an electoral register. Not sure the plaintiff in that case will be very popular in academia outside NUI and TCD. My guess is that the other universities need this like a hole in the head.

And I'm not sure that Free Legal Aid Centres were established in order to assist a graduate of UL to get himself a vote in the elections for Seanad Éireann.

Emblematic

https://www.boards.ie/discussion/comment/120431632#Comment_120431632

You are against it?

L1011

I suspect this now makes it impossible, or at least exceptionally difficult, for a future Government to outright ban abortion, as the line inserted by the 36th (as well as removing the 8th/13th/14th) was:

"Provision may be made by law for the regulation of termination of pregnancy"

Some anti-choice people held on to the idea that a future Government would be able to ban it again without a referendum as some vague hope.

coylemj

https://www.boards.ie/discussion/comment/120431710#Comment_120431710

I am against the Supreme Court writing something into the Constitution. The 1979 referendum (7th amendment) did not mandate the Oireachtas to extend the franchise for Seanad elections, it gave them the option to do so.

Next time a referendum is passsed which says 'provision may be made by law to .....' does that mean the Oireachtas must legislate the very next day?

FishOnABike

https://www.boards.ie/discussion/comment/120431880#Comment_120431880

But if read in conjunction with article 40.1 of the constitution why should a citizen be disenfranchised, simply on the grounds of where they studied?

Allowing for the possibility of making povision for something doesn't mean it has to be provided, but if it is provided it cannot be arbitrarily discriminatory in who it is provided to.

Peregrinus

We'll have to wait for publication of the judgment to see the Supreme Court's reasons for the ruling it has made. That should happen fairly quickly.

IIRC in the High Court Heneghan argued the Art 40.1 point that FishOnABike mentions. He also argued that, once Art 18.4 was amended to allow legislation to vary the university franchise, Art 18.4.1 (the bit that says three senators for NUI, three for University of Dublin) became a sort of transitional provision, to operate until it was appropriate to make a new arrangement under the new 18.4.2.

So far as I recall, the amendment to Art 18.4 was proposed and adopted in 1979 because there were plans to dissolve the NUI and create separate universities in Dublin, Cork, Galway and (probably) Maynooth. At some point the plan was abandoned; NUI was not dissolved and the politicians saw no need to use the power conferred by Art 18.4.2.

Instead we've had the establishment of new universities (Limerick, Dublin City), a growth in Irish institutions providing degrees validated by foreign universities, and the award of degrees validated not by universities but by bodies like the old NCEA and HETAC. So we now have lots of citizens who have obtained degrees in Irish institutions but whose degrees are not awarded by NUI or Dublin. And this is exactly the situation that was foreseen in 1979, albeit that we have arrived there by a different route.

I'm guessing here, but I suspect the argument will be along the lines that the people amended the Constitution in anticipation of the dissolution of NUI so that Irish graduates could continue to participate in Seanad elections even when there was no NUI. Had the State in fact dissolved NUI the intention of the people was clearly that they would legislate under art 18.4.2 to include graduates of the successor universities. Instead of dissolving NUI, they created new universities and degree-awarding bodies, but this technical change of policy shouldn't be allowed to frustrate the intention behind the enactment of Art 18.4.2. The Oireachtas has a responsibility to exercise its powers under Art 18.4.2 to regulate the university franchise in a way that takes account of the higher education environment in Ireland and that is compatible with the Art 40.1 guarantee of equality before the law.

[Deleted User]

Still don't understand why degree holders (I am one) should have a vote over anyone else.

It's pure elitist nonsense

Peregrinus

https://www.boards.ie/discussion/comment/120433727#Comment_120433727

Partly it's an accident of history. University representation survived because it meant that unionist voices would be represented in the Oireachtas of the Irish Free State.

That's not so much a consideration now. The main defence of the system nowadays is the pragmatic one that it produces pretty good outcomes - the university constituencies punch well above their weight in terms of returning competent, articulate, independent voices who make a positive contribution to the Parliamentary process and represent a variety of perspectives that probably wouldn't otherwise be heard in the Oireachtas. The bulk of senators are elected by county councillors; they are party hacks who you've mostly never heard of unless you heard of them as TDs who lost their seats. The Seanad would not be improved if it had six more of those in place of the university senators.

[Deleted User]

Totally agree but it's still not democratic for one section of society to be represented and the rest not...

[Deleted User]

https://www.boards.ie/discussion/comment/120433727#Comment_120433727

Why do farmers have a vote over anyone else too? Is that elitist nonsense also?

Labour? Industrial and Commerce? Etc

L1011

https://www.boards.ie/discussion/comment/120433751#Comment_120433751

They don't have a vote. They have nominating rights but those seats are elected by councillors and Oireachtas members

[Deleted User]

https://www.boards.ie/discussion/comment/120433753#Comment_120433753

They do have voting rights, it's the panels that are nominated by Oireachtas members and by the organisations. Those panels then have the votes.

But yeah, it's ludicrous, and in reality notional

Peregrinus

https://www.boards.ie/discussion/comment/120433783#Comment_120433783

Other way round — vocational, etc organisations can nominate candidates to the five panels (Administrative, Agricultural, Cultural and Educational, Industrial and Commercial, Labour) but when it comes to electing senators from those five panels, it's only Oireachtas members and members of local governments who have a vote.

Peregrinus

https://www.boards.ie/discussion/comment/120433745#Comment_120433745

Senators are not supposed to represent anybody, much less represent the people who elected them. You are represented by your TDs but, even if you happen to have a vote in the Seanad elections, your Senator does not represent you.

(Thus, as a Seanad voter, you are not supposed to elect the candidate who will favour you/your university, but the candidate who you judge will make the most beneficial contribution to the deliberative process.)

[Deleted User]

https://www.boards.ie/discussion/comment/120433794#Comment_120433794

Which is not what happens, people still vote for closest idealogy.

And it still assumes that non degree holders should defer to the upper echelons of society, listen to their betters, and know their place. (Which is my actual point)

Peregrinus

https://www.boards.ie/discussion/comment/120433892#Comment_120433892

I don't think your point is valid. Non-degree holders don't have to defer, listen and know their place; they elect Dail Eireann, which can and does override the Seanad. University graduates only get to select a small minority of the members of one House of the Oireachtas which is unable to impose its will on the other House.

Nor is it correct to say that "people still vote for closest ideology" in the university seats, since the university sets tend to return a high proportion of independent senators. I suspect most people who have votes in the Seanad as university graduates cast them for candidates who are not aligned with the candidates the same people vote for in Dail Elections; the results would certainly suggest that they do. And the received wisdom is that a party alignment, even with a major party, is a handicap in university seats, not an asset.

I agree that its hard to justify the university franchise for Seanad seats on democratic grounds, but most electoral systems are a compromise between what would be maximally democratic and what will produce a competent and functioning legislature. The defence offered for the university seats is that they improve the quality of the legislature.

L1011

https://www.boards.ie/discussion/comment/120433783#Comment_120433783

No, you have that entirely backwards

The various bodies can nominate to those panels but they have no votes. The voting is then done by the councillors, TDs and outgoing Senators

coylemj

It doesn't make sense to me that, in a republic where we are all supposed to be equal, people who have a degree are given a higher level of representation in the Oireachtas than the average man or woman in the street.

The argument that all the power rests in the Dáil (so what's the problem with a few university senators who can't do any harm?) can be applied to justify the continued presence of hereditery peers in the UK House of Lords.

Claw Hammer

https://www.boards.ie/discussion/comment/120431880#Comment_120431880

Everything hinges on the construction of the word "may". In some senses it is permissive, in others mandatory. A Judge saying to you in court saying "you may sit down now mrs coylemj" is telling you to sit down not inviting you to stand or sit as you feel like it.

coylemj

https://www.boards.ie/discussion/comment/120436133#Comment_120436133

Disagree. 'Shall' is mandatory, 'may' is permissive.

In relation to the guarantee that the Ceann Comhairle be automatically returned to the next Dáil, the Constitution (Article 16.6) stipulates...

Provision shall be made by law to enable the member of dáil Éireann who is the chairman immediately before a dissolution of dáil Éireann to be deemed without any actual election to be elected a member of dáil Éireann at the ensuing general election

While the 7th (1979) amendment inserted Article 18.4.2 which states that ....

Provision may be made by law for the election, on a franchise and in the manner to be provided by law ..

The Supreme Court has effectively held that there is no difference between the word 'shall' and 'may'. And if a future amendment passes which includes the words 'may', the recent judgement means that such an amendment will represent an imperative for the Oireachtas to immediately leglslate accordingly.

Yurt2

https://www.boards.ie/discussion/comment/120436227#Comment_120436227

Not quite as simple as that. There is quite a bit of case law around this very point, so the Supreme Court's judgement isn't going off on a mad one if we look at other common law jurisdictions' take.

http://cereli.fr/wp-content/uploads/2012/09/Charnock_When-May-means-Must.pdf

"Various courts have held that in certain circumstances there may indeed be an obligation to exercise a statutory discretion. In such cases, the statutory may is said to have a coercive meaning similar to must. Surprisingly, this is the first sense given under ‘may’ in Stroud’s Judicial Dictionary (Stroud: 1986)."

"The leading English case for the proposition that the literal meaning of the legal may includes not just the permissive, but also the coercive sense is Julius v Oxford (Bishop) 1880, in which numerous precedents are cited. The authority is seen to derive from Alderman Backwell’s case, decided as long ago as 1683, by Lord Keeper North in the Court of Chancery."

Peregrinus

In general, "may" is permissive, and "must" and "shall" are mandatory. But all legislation, and the Constitution in particular, is to be read holistically, to give effect to the comprehensive intention of the legislator (which, the case of the Constitution, means the intention of the people). So "may" can sometime mean, well, something a bit more than "may".

For example, there's the case of Doyle v Hearne where the Supreme Court looked at a provision in the Courts of Justice Act which said that a circuit judge may refer a question of law that is relevant to case before him to a higher court and may postpone giving judgment in the case before him until the higher court has given a ruling on the question of law. The Supreme Court held that the second "may" was mandatory; it would be absurd to interpret the Act so as to allow the circuit judge to put a question of law to a higher court but then go ahead and determine the case before him without waiting for an answer.

This case, obviously, isn't on all fours with Doyle v Hearne, but it makes the point that what "may" means depends on the wider context; the purpose of the legislation; the problem it is trying to solve; the way in which it is trying to solve it. The goal of interpreting legislation is to give effect to the intention of the legislator, so the question really comes down to: what did the people intend when they made this amendment to the Constitution?

This isn't a ruling that every instance of the word "may" in the Constitution indicates an imperative; just that this one, read in its context, does.

coylemj

I would say the issue here is this: 'what did the electorate mean when they passed a referendum which inserted that text into the Constitution'?

I contend that the average voter would have said that the operative word 'may' meant that the Oireachtas could legislate if they saw fit, not that they must do so.

Peregrinus

https://www.boards.ie/discussion/comment/120439229#Comment_120439229

That is also what the state contended in the court proceedings. But it's not a contention that found favour with the court.

The judgements have now been published. They point out that the language of the amendments is deeply, deeply confusing. Almost any meaning you think might have been intended would have been more clearly expressed using different language.

markpb

https://www.boards.ie/discussion/comment/120439229#Comment_120439229

That’s putting a lot of burden on one word. Why hold a referendum if you’re going to ignore the results for decades? I suspect most people would have interpreted the spirit of the question as ‘do you want this change (it can’t be done without your permission) ’?

Hotblack Desiato

https://www.boards.ie/discussion/comment/120433392#Comment_120433392

You might as well ask why are they disenfranchised for not being a graduate at all?

We accept it as entirely normal that citizens are disenfranchised for all but Senate elections if they live outside the country, yet keep their vote for the Senate if they have one!

Hotblack Desiato

https://www.boards.ie/discussion/comment/120433740#Comment_120433740

Mostly true, but then there is also Ronan Mullen.

Hotblack Desiato

Does the Irish text taking precedence have any effect here?

Peregrinus

The court judgment examines both the English and Irish texts. A large part of the reasoning which underlies the decision rests on the fact that "shall" and "may" are not used consistently in Art. 18 to indictate an obligation and a permission respectively, and the judgment makes the point that this is also true of the correspending Irish lanaguge text. In addition one use of "may" in the English text is expressed in mandatory terms in the Irish text — a reference in Art 18.4.2 to "so many members of Seanad Éireann as may be fixed by law" becomes "an líon sin comhaltaí de Sheanad Éireann a shocrófar le dlí". This means "as will be fixed" or "as is to be fixed" rather than "as may be fixed".

This is used by the court to underline the point that the language of Art 18.4 is all over the place as between obligations and permissions. But I don't think the Irish language point is the clincher; they would have arrived at the same conclusion without it.

coylemj

I wonder if any of the current judges of the SC was working in the Office of the AG at the time of the 1979 referendum? Given that several of them are now in their late 60s, it's possible. Though I'm sure that in the case under discussion, he or she would have declared this and recused themselves.