Judgment: 2023-03-31 · Court archive

Charleton dissents on order requiring action after 1979 Seanad referendum

In a partial dissent in a Supreme Court appeal, Mr Justice Peter Charleton said the referendum enabled changes to university representation but did not require them. He argued that the Government should respond and the Oireachtas should debate the issue.

The Supreme Court · [2022] IESC 7

Who, what, where, when and why

Who
  • Tomás Heneghan (Plaintiff)
  • The Minister for Housing, Planning and Local Government
  • The Government of Ireland
  • The Attorney General
  • Ireland (Defendant)
  • Peter Charleton (Judge)
What

In a partial dissent in a Supreme Court appeal, Mr Justice Peter Charleton said the referendum enabled changes to university representation but did not require them. He argued that the Government should respond and the Oireachtas should debate the issue.

Where

Places mentioned in the report

  • Ireland
  • Seanad Éireann
When

Judgment:

Other dates in the report
  • 3 August 1979

    The appeal was brought by Tomás Heneghan against the Minister for Housing, Planning and Local Government, the Government of Ireland, the Attorney General and Ireland. The judgment, delivered on 31 March 2023, concerns the Seventh Amendment of the Constitution, approved by referendum on 3 August 1979. The amendment allowed provision to be made by law for higher education institutions to elect up to six senators, in place of the existing university arrangements.

Why

Read the report below for the decision and any reasons given.

Mr Justice Peter Charleton has set out why he would limit the order in a Supreme Court appeal concerning the consequences of the 1979 referendum on university representation in Seanad Éireann. His judgment is a partial dissent: it explains why he disagrees with the majority’s proposed far-reaching order. The source does not set out the majority’s final order.

The appeal was brought by Tomás Heneghan against the Minister for Housing, Planning and Local Government, the Government of Ireland, the Attorney General and Ireland. The judgment, delivered on 31 March 2023, concerns the Seventh Amendment of the Constitution, approved by referendum on 3 August 1979. The amendment allowed provision to be made by law for higher education institutions to elect up to six senators, in place of the existing university arrangements.

Charleton rejected the argument that the amendment required the Oireachtas to change how university senators were elected. In his reading, the constitutional wording was enabling: it allowed lawmakers to make changes, but did not compel them to do so or specify what changes should be made. He said the choice of whether and how to alter the arrangement belonged to the political sphere.

He nevertheless considered that the referendum result called for a political response. Charleton said the Government should have formally considered the outcome within a reasonable time and that the Oireachtas should debate the changes the amendment enabled, including whether to leave the existing arrangements in place. He said no such debate had taken place in either House, despite more than four decades having passed.

Charleton proposed that the order should be limited to declaring that duty to respond and debate. He said the court should not make a mandatory order requiring a change to the Seanad’s university representation, which he considered unsupported by the constitutional text and potentially at odds with the separation of powers.

The judgment is Charleton’s account of the limits he would place on the court’s order. It does not, by itself, establish the terms of the Supreme Court majority’s final order.

Read the original court judgment

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