Court to hold urgent hearing of Costello case over Dáil numbers

Ex-Labour TD claims number of TDs after a snap election would breach Constitution

The High Court has made directions for an urgent hearing of former Labour Party TD Joe Costello's action aimed at securing the enactment of laws increasing the number of members of the Dáil before any general election.

Mr Costello is not pursuing an injunction preventing dissolution of the current Dáil before any such laws are introduced and is rather seeking various declarations, the president of the High Court, Mr Justice Peter Kelly noted.

After the basis of the case was outlined to the judge today by Conor Power SC on Monday morning, for Mr Costello, the judge made directions for service of the legal documents on the State and Oireachtas and returned the matter to Tuesday morning.

The judge said the proceedings were just issued Monday and declarations were sought , including that the defendants have failed to number of TDs accords with the requirements of Article 16.2.2; that, unless amending laws are introduced, the makeup of the next Dáil would breach the Constitution and that members of the Dáil have failed in their duty to enact the necessary laws and remedy the breach of Article 16.2.2.


Article 16.2.2 provides the total number of members of Dáil Éireann “shall not be fixed at less than one member for each thirty thousand of the population or at more than one member for each twenty thousand of the population”.

The case also included an application for an injunction, if necessary, to prevent any dissolution of the Dáil until the relevant laws were enacted, he said.

However, the court was told no such injunction would in fact be sought and what the court was being asked for instead was an urgent hearing in light of what is “taking place elsewhere” and an apprehension a general election might be called tomorrow, the judge said.

Rights as a citizen

Whether or not an election was called was not something the court had any say in and Mr Costello’s claim is that his rights as a citizen are being infringed due to failure to enact the necessary laws.

The judge said he was satisfied to permit service of the legal papers at short notice on the State and Oireachtas and that the case would warrant an early hearing. He returned the matter to 10.30am on Tuesday.

Earlier, Mr Power, for Mr Costello, said they were concerned there is a “significant risk” of an election and, if so, the makeup of the next Dáil would breach the requirements of Article 16.s2.

Arising from the 2016 Census and 2017 Constituency Commission Report, the next Dáil must have more members than the current Dáil to stay within the rules as set by Article 16.2.2, counsel outlined.

The next Dáil must have at least 159 members to comply with Article 16.2.2 and the commission has recommended the next Dáil have 160, he noted.

If an election is held, that would return 158 TDs which would breach Article 16.2.2. which creates a mandatory obligation not to breach the limits, he said.

An election would mean three TDs being returned for Mr Costello’s Dublin central constituency when that should be four, counsel said. The kind of issue raised in the case has never previously arisen, he said.

Unless the legislation was introduced urgently, the next Dáil could have its constitution and authority questioned, counsel argued. The situation required to be immediately addressed but, while there was a Bill in draft stage to act on the commission’s recommendations, that had not been put before Cabinet.

Serious public interest

There is a “serious public interest” in the case as the next Dáil could be unconstitutionally constituted, counsel said.

Mr Power also said he was not at present seeking an injunction and would not pursue that matter if a declaration was sufficient to meet the situation. If declarations were granted, it would be very unusual for the executive not to abide by those.

The case arose after the 2016 Census revealed a growth in population of 170,000 since the previous census in 2011. Mr Costello said the recommendations of the commission clearly underline that an increase in Dáil membership and a change in Dáil constituencies is required due to the substantial population increase and to fulfil constitutional imperatives.

The commission has advised that arising from the 2016 census the next Dáil must contain between 159 and 238 members, and has recommended it have 160 members.

Mr Costello says Dublin Central, following the increase in numbers demonstrated in the 2016 Census, falls outside the parameters of the 20,000 to 30,000 population specified in the Constitution.

To remedy this "democratic deficit" the Boundary Commission has recommended an additional cohort of population be added to Dublin Central and that it have an extra TD, to again become a four-seat constituency.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times