A CONSTITUTIONAL EXPERT has said a referendum on whether TDs and Senators can vote remotely is not required. 

The 39th Amendment of the Constitution (Remote Parliamentary Voting) Bill 2020 went before the Dáil this week and seeks to amend the Constitution by allowing remote voting to take place.

The bill was brought forward by Fine Gael TD Jennifer Carroll MacNeill and the Government, as well as opposition parties, have indicated that they will not oppose it.

Currently, Article 15.11 of the Constitution states that “all questions in each House shall, save as otherwise provided by this Constitution, be determined by a majority of the votes of the members present and voting other than the Chairman or presiding member”.

This means that TDs and Senators must be present in the Dáil and the Seanad in order to cast votes.

MacNeill said the Bill would allow those who are on maternity, paternity or sick leave to vote without having to attend in person.

Speaking on the Plinth this morning on remote or proxy voting for members of the houses of the Oireachtas. My Private Member’s Bill will come before the Dáil this afternoon, and I’m delighted to have cross-party support🤗https://t.co/SiHLZ3NEGl pic.twitter.com/xSywekQCnM

— Jennifer Carroll MacNeill TD (@CarrollJennifer) February 10, 2022

If the bill is passed in both the Dáil and the Seanad, it must then be put to a referendum.

However, experts have questioned whether a referendum on the matter is necessary.

Dr David Kenny, Associate Professor of Law at Trinity College Dublin, told The Journal that there is nothing in the Constitution that actively prevents TDs and Senators gathering remotely to vote.

“The argument stems from the idea that the Constitution requires the Oireachtas to sit in a particular physical place, and you can only determine questions in the Oireachtas by a majority of members present and voting,” he said.

“So unless you’re physically present in Leinster House or the other physical place that you designate, you can’t engage in parliamentary votes, you can’t sit in the house.”

But Kenny says there is nothing to suggest that that is actually the case, as the Constitution has never been interpreted by the courts on this point.

“The argument is that the Constitution suggests that it has to be a particular, physical location, and presence means ‘physical presence’,” he said.

“Obviously, that would have been true in 1937 when the Constitution was written, but that’s not how constitutions are interpreted; they don’t sort of get historical readings that are frozen in time.”

The Constitution can be updated with new understandings, and it’s important to look at the purpose of those constitutional provisions. Why do they exist? Why are they important? If you look at that, and you consider whether or not remote voting should be allowed, there is no particular reason that the Constitution should raise any objection.

Appearing in the Dáil in person is necessary to avoid proxy voting, whereby TDs and Senators can have someone else vote for them without them hearing the debate, but Kenny said this would not happen if members attended virtually.

“People who were there online would hear the debate, would be able to formulate their own opinion, contribute to the debate, and then cast a vote securely,” he said.

“So there’s no reason that there would be any harm done by people being allowed to attend remotely.”

Court objection

It is unclear whether the Supreme Court would actually object to members voting remotely, but Kenny says there is little reason to suspect that they would.

“They’ve been happy to update other aspects of the Constitution to allow for the realities of things like travel and so on, that weren’t envisaged before,” he continued.

“Electronic voting within the Dáil chamber is used, not walking through lobbies as would have been done in the early years of the State. We have no problem with any of that. I don’t see why there’s a problem here.”

There is no law at all from the Irish courts interpreting the Constitution that suggests that this is a problem. None. So this is a problem that has been created entirely by the legal advice that the Oireachtas received. There’s no case law behind this whatsoever, and I think that the whole idea of needing a referendum for this is incorrect.

Kenny added that instead of a referendum, members could instead change the standing orders and pass a Bill through the Oireachtas, which could then be referred to the Supreme Court.

Article 26.1.1 of the Constitution states that the President can “after consultation with the Council of State, refer any Bill to which this Article applies to the Supreme Court for a decision on the question as to whether such Bill or any specified provision or provisions of such Bill is or are repugnant to this Constitution or to any provision thereof”.

Kenny said while it is hard to predict what the Supreme Court would decide, he would be “shocked” if remote participation in the Oireachtas was found to be unconstitutional.

“It feels to me like we can do this, basically, tomorrow. You could do it overnight, without the time delay, inconvenience and expense of a referendum,” he said.