A GROUP of senators are to ask the High Court to determine whether the Seanad can sit without all 60 members in a move that could allow more time for a new government to be formed.
As Fianna Fáil, Fine Gael and the Greens race against time to form a government in order to extend anti-terror and anti-crime legislation that expires on June 30, the courts will be asked to determine if the Seanad can do this without 11 nominees from a newly-elected Taoiseach.
Independent.ie understands that a group of 10 senators who wrote to the Taoiseach last week arguing that it is constitutional for the Seanad to sit, debate and pass laws with 49 senators are to submit High Court papers over the weekend in a bid to get a court adjudication on the issue.
Taoiseach Leo Varadkar told the group, which includes former justice minister Michael McDowell, in a letter on Wednesday that they had raised “an important point of law that needs to be clarified”.
The Government and the Oireachtas maintain that legislation, including that which will allow the Special Criminal Court to continue to sit beyond June 30, cannot be passed through the Oireachtas without a new government and a newly-elected Taoiseach nominating 11 senators for appointment to the upper house.
But in a letter to Mr Varadkar last week the 10 senators argued that it is constitutional for the Seanad to sit with the 49 elected members.
Mr Varadkar explained the Government’s position in his response to the group on Wednesday and asked that they revert to him with “some form of submission set out the legal basis for your assertion” for consideration by the Attorney General.
“I agree that this is an important point of law that needs to be clarified due to the fact that necessary legislation may need to be enacted in the coming weeks,” Mr Varadkar wrote.
In a detailed response sent on Thursday the senators disagreed with Mr Varakar���s analysis, arguing that his contention that the Oireachtas is not fully composed and therefore cannot legislate is based on a “textual interpretation that gives rise to potentially crippling outcome, where the organs of government are incapable of functioning as constitutionally mandated”.
As well as Mr McDowell, the letter is signed by Labour senators Ivana Bacik, Annie Hoey, Rebecca Moynihan, Marie Sherlock and Mark Wall, and the Independents Victor Boyhan, Gerard Craughwell, Sharon Keogan and Ronan Mullen.