Conor Casey, Hilary Hogan and Ciarán Toland SC
With the rapid spread of the coronavirus, the Irish State has been confronted with its worst public health crisis in a century.
In an odd twist of fate, it happens to have no elected government. Leo Varadkar resigned as Taoiseach over a month ago. Regina Doherty, Katherine Zappone and Shane Ross, currently Ministers of Government, are not even members of the Oireachtas. The need to form a new government has been heightened by advice from the Attorney General that the Oireachtas cannot continue to pass laws, although Professors Oran Doyle, Tom Hickey, and Seth Barret Tillman have argued to the contrary.
There is widespread agreement that a government needs to be formed sooner rather than later. A programme for government could be agreed and a new Taoiseach and Government elected by the Dáil as a matter of urgency.
But gathering 160 TDs into the confines of Leinster House would be grossly irresponsible in the present climate. Plans are afoot to use a large space such as Dublin’s Convention Centre for the votes on the Taoiseach and Government, where deputies can place themselves at a safe distance. However, this is not planned for regular sittings.
Currently, the Dáil is sitting in reduced numbers, with proportionate representation from each political party. Last week, Labour TDs opted not to attend Dáil statements on health, and instead provided prepared written statements to be read into the Dáil record. This model might be adopted to allow TDs who cannot attend to contribute to Dáil debates in person. Only a small portion of our elected representatives will participate fully in Oireachtas sittings.
But there is another alternative, which does not involve granting blank cheque to the executive, nor compromising parliamentary representation. This alternative would better protect the health of members and public servants, and – in the interests of democracy – would enable more regular and fuller sittings than is currently planned.
It involves facilitating both Houses and their Committees either: (1) to sit wholly electronically; or (2) to sit physically with electronic participation of absent members.
Other institutions have taken steps to facilitate electronic sittings, including the European Parliament, Spain, Poland, and Romania. The House of Commons has authorised its Committees to work remotely, and its Speaker has proposed virtual sittings.
Are there any constitutional barriers to allowing the Dáil and Seanad to convene remotely?
Place of sittings
Art 15.1.3 of the Constitution envisages that the Houses of the Oireachtas will sit in or near Dublin, but that the Oireachtas can sit in “such other place” as they “may…determine”.
The fact that Dublin is identified means the natural interpretation is that “such other place” refers to another physical location, such as Cork or Galway. The drafters could not have imagined that members of the Oireachtas would be able to gather and deliberate in anything but a single, identifiable location.
However, neither language version rules out the possibility of electronic sittings, expressly or on a purposive interpretation.
Sittings in public
Article 15.8.1 provides that “sittings of each house of the Oireachtas shall be public.”
Here, there is likely no conflict on the face of the Constitution.
Any virtual sittings of the Oireachtas would simply have to comply with the requirements of Article 15.8.1 for a sitting of the Houses of the Oireachtas to be public. Ideally, it could be streamed online, made available on the Oireachtas television channel or played on the airwaves.
Sittings in private
Article 15.8.2 envisages that a “private sitting” can be held in “cases of special emergency” with the assent of two thirds of the “members present”. Whilst Article 15.8.2 could potentially be invoked to permit electronic sittings should doubt exist about their being in “public”, this is neither necessary nor desirable.
Presence and Votes
Article 15.11.1 provides that “all questions in each House” shall be determined by “a majority of the votes of the members present and voting” other than the Chairman.
Whilst “present” again would have been understood as a physical presence, nothing now prevents members could register a virtual presence by participating in a specially convened sitting of the Oireachtas via technological means. Voting could also be facilitated either by roll call votes, or by software. Provided members can hear and speak to one another, they should be able to perform most of the same functions that they can by being there in person.
Physical sittings supplemented by electronic participation of members
Alternatively, it could be possible for a limited amount of deputies to continue to convene in the Dáil chamber, while the other TDs can be virtually present.
This would undoubtedly satisfy the text of Article 15.1.3 for meetings at a specific “place”.
It would also ensure that the session could be broadcast to the public, and satisfy Article 15.8.1 that the sittings be held publicly.
Purposive Constitutional Interpretation
The purpose of the provisions of the Constitution governing Parliamentary sittings inform their interpretation. An overly formalistic reading of Articles 15.1.2, 15.8.1 and 15.11.1 of the Constitution would undermine that very purpose.
The purpose of Article 15.1.3 is to empower the Houses to determine their place of sitting when not in Dublin: there is no constraint. The purpose of Article 15.8.1 is to provide that sittings are in public. The purpose of Article 15.11.1 is to provide for plurality voting.
Why does the Constitution stipulate that the Houses of the Oireachtas should have sittings, as a collective, in public, save in emergency situations?
The need for the Oireachtas to perform its constitutional functions (in particular, the exclusive power to legislate under Article 15.2.1 and to facilitate Government responsibility to the Dáil under Article 28.4.1), with its entire composition of elected members, would inform its interpretation in these extraordinary circumstances.
Public sittings support the constitutional functions of the Oireachtas of legislating and holding the Government publicly accountable by scrutinising its actions. Much like Article 34.1 for the administration of justice, public sittings of the Houses of the Oireachtas facilitate the legislature carrying out those roles effectively and in a way that protects public trust in the systems of government.
Which format best allows Dáil Éireann to carry out its constitutionally-mandated functions of legislation and of holding the Government to account?
Written questions have none of the spontaneity that rigorous questioning, in real time, can provide.
A remotely-convened sitting of the Oireachtas would arguably amount to a far more effective legislature than the present one where only a handful of TDs and senators are present, selected by the parties, and where the vast majority of debate is conducted by pre-written questions and answers.
The format to be chosen for virtual sittings should enable (subject to amended rules on standing and procedure) the Members of the Oireachtas to securely communicate clearly and spontaneously in order to ask questions, engage in debate, and vote (by software or roll-call).
In short, it is unlikely that the Courts would place undue emphasis on the literal meaning of “sit”, “place” or “present”, or a historic meaning of “public”, where same would have the effect that the Houses do not sit, sit with reduced members, place members at risk, or work ineffectively.
Accordingly, electronic sittings could suffice to satisfy the constitutional purpose of sittings of the houses in public, with members present and voting.
Standing Orders of Dáil and Seanad Éireann
There are no Standing Orders of either House concerning the permissibility of meeting remotely via technological means, nor are there Standing Orders requiring the Dáil or Seanad to meet in Leinster House. However, the Standing Orders would require amendment to enable electronic presence of members.
Risk of legal challenge to amendments to Standing Orders
It could be argued that any question over the validity of the Oireachtas sitting remotely could pave the way for a legal challenge, and cast doubts over any legislation passed. While there are legal risks to our proposal, it should be remembered that the courts have been slow to interfere in internal Oireachtas matters, citing the need to preserve the separation of powers articulated by the Constitution.
Deference to the Houses on amendment of Standing Orders
The Courts have made it clear in cases like O’Malley v An Ceann Comhairle  1 IR 427 and Haughey v Moriarty  3 IR 1 that, by and large, parliamentary standing orders and procedures are not justiciable.
The exception is, of course, when procedures of the Oireachtas have the potential to affect the personal rights of citizens (Maguire v Ardagh  1 IR 385, Re Haughey  IR 217, Callely v Moylan  4 IR 112 and Kerins v McGuinness  2 ILRM 301). The proposed procedures for remote participation in Dáil and Seanad sittings would not directly implicate citizens’ personal rights.
Whilst legal risk cannot be discounted, there is a possibility that the Courts will find they do not have the power to review the substance of amendments to the Standing Orders to permit the Houses to sit electronically.
The Consequences of Constitutional Breach
The Courts are alert to extraordinary adverse circumstances and potentially grave consequences, not only when interpreting constitutional provisions, but also when deciding the consequences that should flow from their determinations.
This would become relevant if the decision for the Oireachtas to sit remotely were found not to be authorised by Article 15.
The question is what the effect of this would be on the business carried out: in particular, the passage of legislation through the Houses; and, any votes on the election of the Taoiseach and Government.
With respect to legislation, a finding of unconstitutionality in respect of mode of sitting could negate the presumption of constitutionality for Acts: however, this may be surmounted if the Oireachtas were acting on a bona fide understanding of their constitutional obligations.
Although now unlikely, if the Taoiseach and Government were to be elected by electronic means, it is possible that the validity of the elections and their actions in secondary legislation and the executive sphere may also be called into question.
However, case law shows that – in exceptional circumstances – the Courts do not dogmatically pursue the logical consequences of a breach of Constitutional norms (De Búrca v Attorney General  IR 38; Murphy v Attorney General  2 IR 241; A v Governor of Arbour Hill Prison  4 IR 88).
Courts have in recent years begun to develop a flexibility in their remedies such that they can “suspend” declarations of unconstitutionality for periods of six or twelve months to allow the Oireachtas address the constitutional deficiency (PC v Minister for Social Protection  IESC 57; AB v Clinical Director of St Loman’s Hospital  IECA 123).
This is the very kind of scenario for which such remedies were designed.
In summary, we argue that the Houses can, and should, amend their Standing Orders to clarify that their meetings can be convened remotely, and for members to be deemed to be present when so connected.
At a time of national crisis, where far-reaching legislation has rapidly been enacted to protect public health and regulate the economy, the Oireachtas will need to review the public health and economic measures being taken by the Government, and may consider new legislation.
For now, restrictions in some form on public gatherings may last several months. It cannot be suggested that our elected representatives would not meet for that period. Nor should our Parliament be limited to reduced attendances, with members selected by party whips, if our law permits a better solution.
The ability for full participation by those we elect should be the least we expect, especially now.
Electronic sittings, or electronic participation of members in physical sittings, would square the circle of protecting the competing requirements of democratic governance and of public health.
Conor Casey is a PhD Candidate at Trinity College, Dublin.
Hilary Hogan is a PhD Candidate at the European University Institute, Florence.
Ciarán Toland is a Senior Counsel at the Bar of Ireland.