Sections of emergency anti-terrorist and anti-crime gang legislation are set to lapse if a new government is not formed by the end of June because the Seanad is not in session.
The provisions of the Offences against the State Act and the Criminal Justice Amendment Act 2009 are renewed each year by the end of June through a motion of both the Dáil and the Seanad.
If the laws are not renewed by June 30th, then non-jury trials for certain offences will not be allowed. These include offences relating both to paramilitary and gang crimes, such as directing the activities of a criminal organisation or training in firearms.
A number of provisions on evidence will also lapse including the extra powers given to gardaí to allow them to make inferences from an accused person’s silence.
Elected members
The measures will not be renewed because the Seanad is in abeyance until a new government is formed. Only 49 members of the 60-seat Seanad have been elected. The remaining 11 are chosen by the incoming taoiseach. Taoiseach Leo Varadkar is not empowered to nominate them.
The Government has interpreted the shortage of 11 Senators to mean that until there is a new government in place no further legislation can be passed because the Seanad does not have its 60-seat complement.
All legislation is passed by both Dáil and Seanad.
Labour Seanad leader Ivana Bacik warned that if the Government wished to retain in force the full statutory framework of the Offences against the State Act and criminal gang legislation, the June 30th date "creates a pressing deadline for the conclusion of government formation talks and the final steps for the sitting of the Seanad through the appointment of the new taoiseach's 11 nominees".
She added: “This will no doubt be weighing on the minds of all concerned.”
Taoiseach’s nominees
The Labour party and a number of legal academics take the view however that a new Seanad can sit without the 11 nominees.
Ms Bacik, a constitutional lawyer, said that if the Attorney General’s legal advice on Seanad formation “had followed our view, the 49 elected Senators could validly pass the necessary motions even in the absence of any taoiseach’s nominees”.
It has emerged, meanwhile, that plans are being drawn up to hold a general election during the coronavirus pandemic in the event that current government formation talks fail.
However, it is highly unlikely that an election could take place with a new government formed before the June 30th deadline to renew the provisions of the legislation.
