Not Just a Christmas Election – An Unconstitutional Election?

Dr Conor O’Mahony & Dr Seán Ó Conaill

November has been a busy month for constitutional lawyers in Ireland. On November 11, the University of Limerick hosted the Constitution at 80, an excellent event marking the 80th Anniversary of the enactment of the Irish Constitution and featuring a stellar array of speakers. On November 21, the High Court recognised, for the first time, an unenumerated constitutional right to an environment consistent with human dignity; if followed in later decisions, this could have all sorts of implications. On November 23, the High Court declared unconstitutional a provision of the Offences Against the State (Amendment) Act 1998 relating to withholding information possibly leading to arrest or prosecution of another person. And this week, we are faced with the makings of a constitutional crisis, in the form of the possible collapse of the current Government and an application to the High Court by ex-Labour TD Joe Costello seeking a declaration that any election held on the current constituency arrangements would be unconstitutional.

Mr Costello’s case hinges on Article 16.2.2° of the Constitution, which provides:

“The number of members shall from time to time be fixed by law, but 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.”

Under section 2 of the Electoral (Amendment) (Dáil Constituencies) Act 2013, Dáil Éireann currently has 158 TDs. The 2016 Census showed an increase in population of 170,000 since the 2011 Census (to a total of 4,757,976). Accordingly, when divided by 30,000, this gives a figure of 158.6, meaning that the number of TDs needs to be increased by at least one.

Challenges to Dáil constituencies are nothing new; there have been multiple past examples. However, all of those have been based on Article 16.2.3°, which relates to the principle of equality of representation as between constituencies: “The ratio between the number of members to be elected at any time for each constituency and the population of each constituency, as ascertained at the last preceding census, shall, so far as it is practicable, be the same throughout the country.”

The wording of Article 16.2.3° is altogether more elastic than Article 16.2.2°, since the obligation extends only “so far as practicable”. Thus it relates to a broad concept of equal representation, which common sense dictates cannot boil down to a precise mathematical calculation. There have been a number of judgments in which the distribution of constituencies was challenged for failing to adhere to this principle of equality. In general terms, the approach of the courts has been to allow some deviation in the ratio between constituencies; but in two cases (O’Donovan v Attorney General [1961] IR 114 and O’Malley v An Taoiseach [1990] ILRM 461), deviations of 25% from the national average were found to be unconstitutional.

Moreover, the phrase “so far as practicable” also imports an element of common sense regarding the procedures that must be followed to revise constituencies and the time that this takes. In the case of Catherine Murphy and Finian McGrath v Minister for Environment [2007] IEHC 185, it was held that this phrase imports not just an element of flexibility into the ratio itself, but also into the logistics of holding a census, ascertaining the results, and drawing up new constituencies. Clarke J (as he then was) held:

“… it is more than reasonable for the Oireachtas to put in place appropriate measures deigned to maintain and ensure a high level of public confidence in the objectivity of the constituency formulation process. To the extent that it may, therefore, be necessary to go through a certain process to ensure that the constituencies as enacted into law have that high degree of public confidence, then I am satisfied that it is reasonable that the process be engaged in. To that extent I am satisfied that it cannot be said that the ratio of deputies to population is outside constitutional norms “insofar as it is practicable” until such time as a reasonable period has elapsed from the availability of relevant census figures to enable such a public confidence maintenance process to be gone through.”

Accordingly, the application in that case to have the Electoral (Amendment) Act 2005 (which set down the constituencies at that time) declared unconstitutional was rejected. Nevertheless, Clarke J emphasised the “urgent obligation on the Oireachtas to deal with the disproportionality which has now emerged and the additional comments which I have made about the possible need to adopt further measures to ensure that the time lag between the final ascertainment by census of the population and its distribution, and the enactment of new constituencies to reflect that population distribution, is reduced to an absolute minimum.”

Mr Costello’s case differs from the above in a number of regards. First, unlike the broad principle of equality of representation set down in Article 16.2.3°, Article 16.2.2° does boil down to a precise mathematical calculation – and the numbers are on his side of the argument. Second, it does not contain any qualifying phrase like “so far as practicable” or anything similar. On its face, taking Article 16.2.2° in isolation, the 2013 Act would seem to be in clear and obvious breach of the Constitution.

In reality, the courts will be loathe to do anything that would interfere with the essentially political processes at the heart of the dissolution and election of Dáil Éireann. But if a ruling in favour of Mr Costello is to be avoided, where are the possible escape routes?

One option would be to read a practicability qualification into Article 16.2.2°, notwithstanding its absence from the text. This would be analogous to Doherty v Government of Ireland [2010] IEHC 369, in which the High Court read into Article 16.7 (which provides that “elections for membership of Dáil Éireann, including the filling of casual vacancies, shall be regulated in accordance with law”) a requirement that by-elections be held within a reasonable time period. However, it is noteworthy that Article 16.2.2° neglects to use the phrase “so far as practicable” when the very next provision does so. It might well be argued that if it had been intended to have been read this way, it would have been drafted in this way, and the failure to include the phrase indicates a conscious choice.

Even if Article 16.2.2° is to be read as importing a practicability element, the question arises as to why it has not been practicable to revise the constituencies in line with the 2016 Census. In Murphy and McGrath (cited above), the Constituency Commission had not reported on foot of the most recent Census. Given the scale of this task, it was always likely that that case would falter on the “so far as practicable” ground. However, on this occasion, the Constituency Commission has already completed its latest report in June 2017. In that Report, the Commission noted at p.15:

“The population ascertained at the 2016 census was 4,761,865 and, on this basis, having regard to Article 16.2.2˚ of the Constitution total Dáil membership could be fixed by legislation at between 159 and 238. However the 1997 Act, as amended, limits the range to not less than 153 and not more than 160 members which provides for a national average representation of between 31,123 and 29,762. All but the last two points in that range, 159 and 160, would breach the constitutional limit. The Electoral (Amendment) (Dáil Constituencies) Act 2013 currently provides for the total number of members of Dáil Éireann to be 158…

…The Commission recommends that the total number of members of Dáil Éireann should be 160. This gives more scope for recommending changes in constituency configuration in a number of areas and for responding more comprehensively to the terms of reference and to many of the submissions made. This would mean a national average representation of 29,762 of population per member.”

All that remains is for the Report to be laid before the Dáil and its recommendations translated into legislation. A draft Bill is already in preparation to this effect. Thus, all the heavy lifting has already been done.

Nevertheless, should the Government fall, the timeframe is about as tight as it could be. It could literally be the case that the Taoiseach drives past the Four Courts in the middle of the hearing of the case on his way to Áras an Uachtaráin to seek a dissolution of the Dáil.

In this case, what are the possibilities? What if the Dáil is dissolved before the hearing of the case? Does this render the proceedings moot? Theoretically, no; under Article 15.4.2°, “Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid.” This should be the case regardless of political circumstances. If the 2013 Act is struck down, the question then arises – what is the effect of this vis-à-vis the next election?

The 2013 Act repealed and replaced the Electoral (Amendment) Act 2009, which set out a different constituency configuration involving 166 TDs. It is superficially appealing to think that the 2013 Act could be struck down, thus bringing back to life the 2009 Act and thus the previous constituencies. However, while this would bring about compliance with the 1:30,000 minimum requirement of Article 16.2.2°, it would have all sorts of knock-on consequences regarding the equality of representation principle set down in Article 16.2.3°, including (and perhaps not limited to) the wide discrepancies complained of in Murphy and McGrath. While Irish courts can declare legislation unconstitutional, they do not have the power to craft a constitutionally compliant replacement; and if the Dáil is to be dissolved tomorrow, there is no time for the Oireachtas to enact one.

One other possibility would be for the President to hold off granting a dissolution long enough to allow the Oireachtas the time it needs to enact the draft Bill designed to give effect to the Report of the Constituency Commission. But the Court is likely to want to avoid making any decision that might be seen as interfering with the role of the Taoiseach and the President in the dissolution process; and so it may be that the Court focuses on this issue as part of a harmonious interpretation of the Constitution rather than a narrow, literal interpretation of Article 16.2.2°. Just how it would square this approach with what seems like a clear and obvious breach of the Constitution will be interesting to see.

Dr Conor O’Mahony and Dr Seán Ó Conaill both lecture in constitutional law at the School of Law at University College Cork.

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