The next Dáil will be unconstitutional unless new laws increasing the number of TDs are implemented before a general election is called, the High Court has been told.
If the laws are implemented before an election, the legal action by former Labour TD Joe Costello over failure of the Oireachtas to date to pass the measures into law "falls away," the president of the High Court, Mr Justice Peter Kelly said.
The necessary legislation has been drafted and was introduced in the Dáil in late November but, due to political, practical and administrative reasons, is unlikely to be on a statute books before January, the judge was told by lawyers for the State.
In the circumstances, Mr Justice Kelly said he would apply fast-track procedures with a view to a hearing towards the end of this court term on December 21st or in January.
Mr Costello claims an election held on the current constituency arrangements would be unconstitutional. If the necessary changes are introduced, his Dublin Central constituency will gain an extra seat.
His lawyers sought an urgent hearing of the case when it was mentioned before Mr Justice Kelly on Tuesday — before the resignation of Tanáiste Frances Fitzgerald — but accepted it would not be possible to have the case heard before any possible dissolution of the Dáil on the same day.
The action centres on Article 16.2.2 of the Constitution which provides the total number of members of the Dail “shall not” be fixed at less than one member for each 30,000 of the population, or at more than one member for each 20,000 of the population.
There are 158 TDs in the Dáil and, given an increase of 170,000 in population since the 2011 Census, Article 16.2.2 means the number of TDs needs to be increased by at least one to 159, he argues.
While the Constituency Commission had recommended in a report in June that the number of TDs be fixed at 160, the legislature has failed to enact the necessary laws to do that, he says.
Conor Power SC, for Mr Costello, said the next Dáil would not comply with Article 16.2.2 if an election is held based on the current constituency arrangements. The situation was “unpalatable” but, notwithstanding what “might be happening elsewhere”, the case demanded an urgent hearing.
Frank Callanan SC, for the State, said it had no difficulty with an early hearing but that was not realistic if there was a dissolution of the Dáil on Tuesday.
The relevant Bill is before the Oireachtas and this matter “is in hand”, he said. The Constituency Commission was established the same day as publication of the preliminary results of the 2016 census and the matter has proceeded “with reasonable dispatch”.
The changes cannot be effected instantaneously, counsel said. The Government has no overall majority in the Dáil and Seanad, meaning actual implementation time for the legislation will be about one month purely on the administrative side because there are 21 constituencies with changes, and changes also have to be made to polling districts, he said.
Conleth Bradley SC, for the Oireachtas, endorsed Mr Callanan's submissions.
Mr Justice Kelly directed the defendants to deliver defences by Friday and listed the case for mention on Tuesday to deal with preparatory matters. If the law is implemented in January, it would not seem necessary for court time to be taken up with the matter, he said.
Seanad Éireann on Tuesday authorised the State to appoint legal counsel to conduct a defence in Mr Costello’s case should it go ahead.
The Houses of the Oireachtas are named parties in the proceedings and both Dáil and Seanad must give formal permission for a legal defence to be prepared. The Dáil will debate the issue on Thursday.