A very interesting conversation on my twitter timeline this morning that’s worth exploring in more depth:

At first glance, O’Cuiv’s tweet makes no sense – the caretaker Government will surely have a Dáil majority to pass whatever measures might be necessary in the coming weeks. Fianna Fáil and Sinn Fein would find it very difficult to justify a situation where they were blocking emergency legislation just because they hadn’t gotten their bums in ministerial seats yet.

But that’s not O’Cuiv’s point. This is:

Basically, the upcoming election to the Seanad will elect 49 of the 60 members of that chamber. And any legislation that is passed by the Dáil must also pass the Seanad.

The difficulty is that the remaining 11 members of the Seanad must be appointed by the new Taoiseach, and we do not, as yet, have a new Taoiseach. So there is some question as to whether the new Seanad can even sit without a full complement of members.

As far as I can see, the constitution makes no provision for this kind of situation. It was written in the days of a reasonably stable political system when elections generally produced an obvious government. It did not anticipate months of political wrangling in the midst of a crisis.

There are a couple of immediate issues:

Varadkar, for example, cannot currently appoint 11 Senators. For one thing, he is only a caretaker Taoiseach, and there is no reason for the opposition parties to allow him to appoint his supporters to the Seanad for a five year term. That’s not a runner, even in a crisis, because if a new Government did emerge that did not include FG, that Government would lack a Seanad majority (the whole point of Taoiseach’s nominees is to make sure the Government has a built in majority in the upper chamber).

Second, even if the parties facilitated it, Varadkar cannot appoint Senators, constitutionally. Here’s the relevant bit of Bunreacht na hEireann:

3 The nominated members of Seanad Éireann shall be nominated, with their prior consent, by the Taoiseach who is appointed next after the reassembly of Dáil Éireann following the dissolution thereof which occasions the nomination of the said members.

That’s very clear. Varadkar has not been appointed by the newly assembled Dáil – he is a caretaker, not an elected, Taoiseach.

Then there’s the issue of Article 18.1:

Seanad Éireann shall be composed of sixty members, of whom eleven shall be nominated members and forty-nine shall be elected members.

In matters of law, the word “shall” is very important. It means “must be”. In other words, there is a real possibility that the other option – for 49 senators to meet and vote on laws – would be unconstitutional, because they do not constitute a fully composed Seanad.

So what’s the solution? There are probably only two possible solutions:

  • The Dáil agrees to elect Varadkar as Taoiseach, in return for a promise that he will resign, and that all his Seanad nominees will resign, as soon as the crisis has passed. In this scenario, Varadkar would agree to appoint non-partisan Senators (John Crown, anyone?) and nobody from Fine Gael.
  • The Dáil elects a new Taoiseach with a majority.

Scenario two has other difficulties though, because it likely means a major shift in Government personnel in the middle of a crisis. A new Taoiseach, Tánaiste, and Minister for Health. All three would take time to settle in and be briefed. It’s not ideal.

Scenario one has another problem, which is that it requires opposition TDs to take a very hard vote – they’d have to re-elect Varadkar as Taoiseach, or, at minimum, abstain to facilitate it.

Maybe the lawyers will find another way. But for now, it looks as if O’Cuiv has identified an important issue.