As a result of the temporary measures taken by the UK House of Commons, MPs as far away from London as Orkney have been able to contribute to parliamentary proceedings remotely. The same has not been true of Ireland, where legal objections have been raised. David Kenny argues that those objections can be easily overcome and that there is no good reason why Ireland’s elected representatives should not be able to attend the Oireachtas remotely.
Ireland’s recent general election, as well as producing deep political uncertainty, has produced several fascinating and strange constitutional questions: what happens when a candidate dies (not, it turns out, what the law clearly required). Can the Seanad (Senate) legislate when no Taoiseach (Prime Minister) has been appointed to nominate 11 of its members? What are the limits of the accountability of acting ministers?
The strange circumstances of the pandemic have thrown up yet another constitutional issue, one which is arising around the world: where and how can the legislature sit? With social distancing in a parliamentary chamber or committee room difficult, this has a profound effect on how the legislature can function at a time where the agglomeration of executive power in response to the crisis requires acute parliamentary oversight.
At present, despite emergency legislation giving sweeping powers to the executive to combat COVID-19, neither house of the Irish parliament is meeting in anything other than the most limited form. For limited purposes, such as attempting to nominate a Taoiseach, a very large space such as Dublin’s Convention Centre can be rented to allow socially distant attendance from all 160 members of the Dáil (the equivalent of the UK’s House of Commons). But this is not intended to be a regular arrangement, and is not planned for other parliamentary activities, such as committee meetings. There are limited sittings in the Dáil Chamber, with a select groups of members in attendance, and meetings of a special COVID-19 Committee in the chamber also. It would seem that virtual/remote meetings would be essential to allow sufficient parliamentary oversight in these circumstances. But constitutional objections to this have been raised.
Shortly after remote attendance was first mooted, it was argued that this is simply not constitutionally permissible: the Dáil and its committees must sit in a particular physical location, and there can be no virtual or remote sittings. This is, apparently, the official view of the Oireachtas (parliament), based on legal advice conveyed by the Clerk of the Dáil to its members. This means, in essence, that the Dáil will not operate as a full house, and committees of the Houses will not meet by virtual means.
The constitutional issue derives from four provisions of Article 15 of Ireland’s written constitution of 1937. Article 15.1.3° provides: ‘The Houses of the Oireachtas shall sit in or near the City of Dublin or in such other place as they may from time to time determine.’ Article 15.8.1° requires that: ‘Sittings of each House of the Oireachtas shall be public.’ Article 15.11.1° states: ‘All questions in each House shall, save as otherwise provided by this Constitution, be determined by a majority of the votes of the members present and voting other than the Chairman or presiding member.’ Parliamentary privilege for ‘utterances made in either House’ is protected in Article 15.12.
The argument seems to be that virtual sittings are impermissible because: virtual sittings are not public in the sense required by the Constitution; sittings must be in a particular, designated, physical place; those voting in such sittings are not present; and/or that privilege is limited to those physical present in a designated place. In my view, none of these arguments are compelling.
Weak constitutional arguments
The objection about public hearings can be fairly readily addressed. The Supreme Court has moved to online hearings despite a constitutional injunction in Article 34.1 that justice be done in public. One can assume, therefore, that there would be little constitutional objection to virtual sittings once they are made available to the public, by being televised or streamed online. Moreover, Article 15.8.2° provides for private sittings in cases of emergency with the consent of two-thirds of the members present. If there were any doubt about online hearings being public—though, again, there shouldn’t be—this provision could be used to ensure constitutional compliance.
The other three arguments turn on a literal or historical reading of the ideas of ‘place’ and ‘presence’. Certainly, one has to concede that the drafters of the Irish Constitution of 1937 thought of place of the House as a physical location; they lacked the foresight to anticipate the miracle (and curse) of large, endless Zoom meetings. In context, the designation of another meeting place is contrasted to Dublin, and clearly envisages a physical location. Presence for voting is similar, the drafters not having conceived of an adequate proxy for physical presence.
But any kind of purposive reading of these clauses would quell such objections. The purpose of the location provisions is clearly to ensure that the Dáil meets in known and accessible places, to ensure that members and the public are aware of sittings and can access them. The Constitution, indeed, is permissive rather than restrictive: it allows for sittings outside of the usual place. Seán Ó Conaill notes in an excellent blog post that the authoritative Irish text of the Constitution is even more permissive in its language.
The presence requirement for voting is to ensure the integrity of the voting procedure that allows for a majority of members in attendance, rather than an absolute majority of members, to pass votes. Digital presence—recorded by roll calls, or a method of electronic sign in—could be used to ensure the integrity of this process and ensure just as well (more effectively, perhaps) than the traditional presence requirement. No one has ever suggested the electronic divisions of the House — the norm in the Oireachtas since 2002 — are unconstitutional because the framers of the Constitution imagined voting by walking through lobbies. The courts have, in respect of other constitutional requirements, been cognisant of the need to allow for technological development that make fulfilling the purpose of certain constitutional requirements easier (see Riordan v An Tánaiste  3 IR 502 on the requirement for certain government officials to be present in the State).
Similarly, privilege is related to physical presence only if ‘utterances made in either House’ must be made in the physical location of the House. There is absolutely no reason to think that this is so; the privilege should apply wherever the House sits, even if that is a Zoom meeting room. Standing orders could be amended to clarify this if needed.
In short, these do not seem like cogent constitutional objections. The overall purpose of Article 15 is to establish and empower a legislative branch of government to actually make the law. We should be slow to interpret its provisions in an overly literal way that makes this difficult or impossible. There is nothing fundamental to the purpose or nature of the Oireachtas that requires these provisions to be interpreted in this manner. Indeed, its nature and purpose would be hindered by these readings. I believe the legal advice suggesting the contrary is incorrect.
Where to from here?
The situation, as it stands, is untenable. There is no opportunity for open debate, general committee oversight is lacking, and the newly elected Oireachtas can still not perform anything like its normal oversight functions. There is very limited ability to question ministers. As argued in an excellent post on this topic by Casey, Hogan, and Toland, written questions to ministers are not a substitute for the rigours of questions in the parliamentary chamber.
With no imminent prospect of being able to sit the 160 Dáil Deputies in the chamber together, or even re-establishing frequent in-person committee meetings, we have to be willing to make remote sitting a standard practice for the foreseeable future. In my view there is no constitutional barrier to this; there is no reason that the ‘place’ the Oireachtas sits should not be a Zoom virtual meeting room. But if I am wrong in this, or if this interpretation will not stand with the Oireachtas’ legal advisors, there is another solution: put a chair and limited number of members in the Chamber or a Committee room—a physical location—and have the other members attend remotely. This model, similar to that implemented in the UK House of Commons from late April, would allow the Oireachtas to continue to fulfil its oversight function at this crucial time. Voting, in my view, does not necessarily require physical presence, but if I am wrong, some informal arrangement of vote matching — used to account for absent members in the ordinary course of things — might be worked out.
Legislating presents a bigger issue. As noted above, there has been controversy around the ability of the Oireachtas to legislate at present. While some disagree, the Attorney General has apparently advised (plausibly, in my view) that the upper house is not properly constituted unless and until a new Taoiseach is appointed and nominates its final 11 members. In the absence of a properly constituted Seanad, no legislation can be passed. Given the need for a fast-moving response to the pandemic — which could at any point demand additional emergency legislation — this is deeply problematic. With no sign of major breakthroughs in government formation talks, the Oireachtas should perhaps formally reappoint the current caretaker Taoiseach Leo Varadkar to appoint these senators based on cross-party consensus, or with agreement these senators would step down if a new Taoiseach were appointed. This would enable the passing of legislation needed between now and whenever a longer-term government could form or a new election can be organised. It would also provide some additional perceived legitimacy for the executive’s actions.
The Irish state is currently without a functioning legislative branch and has a caretaker government at a time when we have given unprecedented powers to the executive. Whatever the next steps, something has to give in order to re-establish legislative oversight and enable legislative action.
This is the latest in a series of blogs in response to the constitutional challenges posed by the coronavirus. To see past blogs in the series, click here. To be notified of future blogs as they go live, sign up for updates in the left sidebar.
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About the author
Dr David Kenny is an Assistant Professor of Law at Trinity College Dublin, and a member of the Working Group on Unification Referendums on the Island of Ireland. He is co-author of the 5th edition of the leading text on Irish constitutional law, Kelly: the Irish Constitution.
The views expressed in this post are personal views and do not necessarily reflect those of the Working Group of Unification Referendums on the Island of Ireland as a whole.