The length of time it’s taking to form a government has so far not really concerned the proper functioning of the state – though the government has been unusually reticent in using its prerogative powers, perhaps afraid that any decision it makes will be seen as undemocratic or stroke politics.

The decision in the High Court yesterday regarding the constitutionality of the law used to activate suspended sentences might mean that the 32nd Dáil has to introduce emergency legislation. To be passed by the Oireachtas quickly it would mean it has to be passed by the 24th Seanad, that is the last one, not the one currently being elected.

This raises a number of issues. One, do the Dáil and Seanad have to correspond? That is, can this Dáil work with the last Seanad? There is nothing in the Constitution that says they can’t, so perhaps we shouldn’t worry about that. It does raise a second issue of when is the Seanad dissolved? There is no mention of the dissolution of the Seanad in either the Constitution or legislation. The Constitution, in Article 18.9 states:

Every member of Seanad Éireann shall, unless he previously dies, resigns or becomes disqualified, continue to hold office until the day before the polling day of the general election for Seanad Éireann next held after his election of nomination.

This doesn’t mean the Seanad is still in place until ‘the day before polling day’. Dáil deputies continue to hold office even after the Dáil is dissolved. However the writ moved to order the Seanad election does not mention dissolution:

In the absence of any other mention of a Seanad’s dissolution we perhaps have to assume that the Seanad is dissolved when the senators cease to hold office, that is ‘the day before polling day’. The Constitutional Review Group in 1996 noted that ‘polling day’ is not defined anywhere. They may have had cause for concern. For the current Seanad elections this happens on two days: University constituency ‘polling day’, or rather close of poll, is on the 26 April, and the Panel constituency close of poll is 11am on 25th April. So does the 24th Seanad cease to exist on the 24th April, or the 25th? Or if the remaining Taoiseach’s nominees could get a quorum, would they be entitled to meet even after this date?

Legislation that it passing though the Oireachtas is deemed to have fallen if all stages are not complete when the Dáil is dissolved. Any emergency legislation would have to go through all stages in both houses by Saturday – which seems unlikely. So we may have to wait until the 25th Seanad is elected.

Constitutional crisis anyone?

This gets to the next stage of the process. The President assigns a day for the new Seanad to meet, on the advice of the Taoiseach. Assume we have a new Seanad elected next week, but no newly elected Taoiseach in place to appoint the 11 nominees (as per Article 18.3), can the 49 senators meet to pass this legislation, or do all 60 have to have been signed on to the roll for the 25th Seanad to be fully constituted? Again the Constitution is silent on this. We know that meetings can take place when there are some ‘casual’ vacancies, so all 60 aren’t strictly necessary, but the courts could find either way.

A Seanad to do any business first has to elect a Cathaoirleach. It would render doubtful the legitimacy of any choice made with just 49 members, and so that election and any legislation passed under her chairmanship might be open to challenge.

There is another possible problem not foreseen in the constitution. What if the government negotiations were to collapse and a new election were called before the new Seanad first meets? There may the requirement to abort the current election before it was complete. Would those senators ‘elected’ be senators and be entitled to rights of former members of the Oireachtas? Or should that election be completed so that there is a Seanad in place, even if it’s for a very short time?

Perhaps we should have just abolished it when we had the chance!