A three judge High Court is hearing a significant constitutional action over whether there is, as of now, a validly constituted Seanad entitled to sit and pass laws.
The Seanad currently comprises 49 elected members of whom 10 have brought the action disputing arguments by the Taoiseach and State that the Seanad cannot meet and pass laws until a Taoiseach nominates 11 further senators to bring it to its full membership of 60.
The case has potential far-reaching implications because, if the court agrees with the State, and a new government is not formed this weekend with a Taoiseach nominating 11 senators, very significant laws will lapse at midnight next.
These include provisions of the Offences Against the State Act and the Criminal Justice (Amendment) Act relating to prosecution of serious criminal and terrorist offences and for trials before the non-jury Special Criminal Court.
Opening the case yesterday, John Rogers SC, for the 10 senators, argued there is now a "legislative stalemate" in the State arising from the current political "impasse" and the respondents' "improper interpretation" of the relevant constitutional provisions.
Opposing the case, Attorney General Séamus Woulfe, noting media reports suggested "no reasonable certainty" of a Taoiseach in the next few days who can nominate the 11, said it would be "risky" and potentially unlawful for the Taoiseach to advise the President when a first meeting of the Seanad can lawfully and constitutionally take place.
The 10 plaintiffs are elected Senators Ivana Bacik, Michael McDowell, Ronan Mullen, Victor Boyhan, Gerard Craughwell, Annie Hoey, Sharon Keogan, Rebecca Moynihan, Marie Sherlock and Mark Wall.
Their case, being heard by High Court President Ms Justice Mary Irvine, Mr Justice Denis McDonald and Ms Justice Niamh Hyland, centres on interpretation of Article 18 of the Constitution.
Article 18.8 provides that the Seanad "shall be composed of 60 members, of whom 11 shall be nominated members and 49 shall be elected members".
Mr Rogers said, as a result of a "volte face", the respondents have moved from saying the outgoing Taoiseach has no power to advise the President to fix a date for the first sitting to saying the outgoing Taoiseach has "discretion" to do so but has not because of the view the Seanad cannot lawfully meet until a Taoiseach nominates the remaining 11 senators.
Article 18 "plainly" mandates the first meeting of the Seanad "shall" take place after the Seanad election, completed 74 days ago on April 4, he said.
It made "no sense" for the defendants to say the Taoiseach can advise the President to fix a date for the Seanad to meet and at the same time say the Seanad cannot legislate.
While Article 18.8 provides the Seanad "shall" be composed of 60 members, it does not say the Seanad must be fully composed before it can meet, he said.
The Constitution provides for a situation where a Taoiseach has not, in certain circumstances, nominated 11 senators.
The consequences of the view the Seanad must have 60 members to lawfully meet are far-reaching, including there would be "no functioning Oireachtas".
Opening arguments for the defendants, the Attorney General said Article 18.8 unambiguously means a properly composed Seanad requires 11 nominated senators which can only be done by a new Taoiseach.
The case is expected to conclude today with judgment reserved, possibly to tomorrow.