THE PANDEMIC HAS, unsurprisingly, caused severe disruption to the operation of parliaments around the world. Parliaments pass laws and hold governments to account by assembling the people’s elected representatives in a defined physical space, so that they can argue, debate, and vote face to face.

Many parliaments worldwide have opted for remote or hybrid sittings — with some members present, and some joining virtually — to continue their work while this is not possible.

This is not so in Ireland, where legal advice received by the Oireachtas seems to mean it will never be possible for the Houses to meet virtually or remotely. We think that this advice is incorrect, and has real consequences for oversight of governance during the pandemic.

Moving out

To carry on some parliamentary functions, the Dáil had to sit in the Convention Centre, at huge expense, to allow TDs to socially distance while debating and voting.

There is an ongoing and apparently heated debate about whether the Convention Centre should continue to be used, another large Dublin venue considered, or if a smaller group of deputies should sit in the Dáil Chamber.

In the early days of the pandemic, several Dáil deputies advocated for the Oireachtas, like much of the rest of the country, to work remotely. But this has not been allowed because the Oireachtas received legal advice from Senior Counsel that remote meetings would not be permitted by the Constitution.

It is the adherence to this advice — not any precedent of the courts — that is stopping the remote functioning of the Houses. The full text of the advice has not been disclosed, but it seems to entail three arguments.

First, the Constitution requires that public sittings of the Houses of the Oireachtas must be conducted in an identified “place”. 

We do not think that any of these arguments are correct.

In our view, there is no constitutional barrier to the Oireachtas utilising technology to facilitate remote meetings to carry out their work.

A living Constitution

Simply put, these arguments take the Constitution far too literally. 

When the Constitution was written in 1937, the legislature meeting in a “place” was certainly conceived of as a physical place.

When it said members should be “present and voting” or that “utterances made in either House” are protected with privilege, there was only physical presence, and the House being in a physical room, was possible.

But now that we have virtual “places” such as online meeting rooms, why would the Constitution not allow meetings in such places? Constitutional interpretation is not so literal that a place must be physical because it was in 1937.

The courts give constitutional text updated meanings and understandings when this fits with the purpose of the constitutional provision, and doesn’t cut against the reason underlying the constitutional requirement.  

The purpose of the location provisions, we would argue, is to make sure the Dáil meets in known and accessible places so that that Oireachtas members and members of the public can access and know about them.

The purpose of the present and voting requirements is to make sure that members cannot vote while entirely in absentia (and to ensure that votes require only a majority of members there at the time, not an overall majority to pass).

Privilege

None of these purposes suggest that a Zoom meeting room is not just as suitable as a physical one. Allowing this would not seem to cut against any of these constitutional purposes.

Far from it, allowing virtual or hybrid sittings furthers the core purpose of these clauses: to enable the proper functioning of the Oireachtas to legislate and oversee government. 

Legal advice is just that—advice. It is not binding, and while it should, of course, be given careful consideration and respect, it is ultimately up to the Oireachtas itself to determine how it conducts its business consistently with the Constitution.

In the end, compliance with the Constitution can only be authoritatively determined by the courts.

Our proposal to resolve the impasse is this: The Houses of the Oireachtas should sit in a remote or hybrid manner and pass legislation. The President could refer such legislation to the Supreme Court for resolution of any constitutional doubts caused by this new process before it becomes law.

Alternatively, the legislation or parliamentary process could be challenged by an Oireachtas member in court. We would then have a definitive answer to this question, and hopefully the Houses and Committees of the Oireachtas could remotely sit in full. 

There is always a risk (we think a small one) that the Courts could find legislation passed by the Oireachtas using remote sittings unconstitutional.

But even in this scenario, there would be no reason to panic. Courts have in recent years been willing to “suspend” declarations of unconstitutionality for periods of six or 12 months to allow the Oireachtas address the constitutional deficiency. They would almost certainly use this remedy to allow the legislature time to respond to any problems.

This issue is hugely important. The pandemic has seen us hand over sweeping powers to government to control public behaviour, and we need a fully functioning Oireachtas to oversee the use of these powers. 

The Oireachtas is rightly cautious and risk-averse when it comes to stepping over a constitutional line. But there is far too much doubt about the unconstitutionality of remote sittings — and too much at stake in terms of the Oireachtas ability to function — to simply say that nothing can be done. 

David Kenny is Assistant Professor of Law at Trinity College Dublin and co-author of the leading text on Irish constitutional law, Kelly: The Irish Constitution. Conor Casey is a Max Weber Fellow at the European University Institute in Florence. They are members of the Trinity College Dublin COVID-19 Law and Human Rights Observatory.