I should like to offer a few observations along the lines upon which Deputy Michael O'Higgins opened for this Party on the Second Reading. Generally speaking, he dealt with one point: that this legislation was unconstitutional; and that is the point I want to come at immediately.
Those who prepared this Bill were good enough to circulate for the information of members of the House an explanatory memorandum in which the two relevant provisions of the Constitution are set out, but, apparently, they decided to forget all about what the constitutional position was. As the memorandum sets out, Article 16.2, sub-section 4, of the Constitution provides:
The Oireachtas shall revise the constituencies at least once in every twelve years, with due regard to changes in distribution of the population, but any alterations in the constituencies shall not take effect during the life of Dáil Éireann sitting when such revision is made.
The second part of the Constitution referred to in the memorandum is as follows:
(a) 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. (Art. 16.2.2º.)
That provision has, apparently, been observed.
The second part of that provision, paragraph (b), states:
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. (Art. 16.2.3.º.)
The two phrases which govern this matter are the phrase contained in the first extract I read, that due regard must be paid to changes in distribution of the population, but the over-riding order is that which I last quoted, that the ratio between the number of members to be elected in each constituency shall be the same throughout the country and the only reservation is "so far as it is practicable."
I have gone through the statements made on this legislation, first, by the Minister and secondly by the Taoiseach. I find the word "impracticable" is used only once in the whole of the columns these two have spoken between them. Such phrases as "practical difficulties", "difficulty of communication""rural bias" and "giving people living in certain areas of the country the better representation they deserve once a ratio has been struck"—all these have been used, and used to bring about the situation disclosed by this legislation. But the phrase is "so far as it is practicable." Later I shall quote some definitions that can be found either in judicial dictionaries or in decisions of the Courts.
It is to be noted that the Irish word both in the present Constitution and the one that preceded it is "feidir" which means "possible", and "practicable" has the meaning of "possible", and only that meaning. On that simplified version of the Constitution, then, the ratio had to be the same so far as that was "possible".
We get an interesting view of how the constitutional change was brought about by looking at the speeches. First of all, we find that Donegal was taken as the pivotal constituency. Here, in the early stages of consideration by the Government of the proposed changes, a matter of difficulty arose. Again, may I emphasise there is no question of difficulty in the Constitution; it does not say that the ratio is to be the same in so far as there is no difficulty about that; it says so far as is possible. But Donegal was taken as the pivotal constituency and we are told that there is appalling difficulty up there from the point of view of Deputies getting in touch with their constituents or constituents getting in touch with Deputies. This, we are told, is caused by a tremendous mountain range in that area—a range which, according to the Taoiseach, divides the East from the West, with only four passes by which people can travel from one part to another. One immediately gets a picture of the Himalayas, or some such range. One gets a view of the officials of the Department of Local Government setting out with provisions to last them for a fortnight, or so, and getting the native Sherpas up in the area to guide them through the four passes, which alone allow for communication over this mountain range which splits Donegal, according to the Taoiseach, from East to West.
At a later stage, of course, the Minister told us that this range of mountains practically divides the northern half of the county from the southern half. The pivotal constituency was Donegal and the pivotal matter in Donegal is a mountain range; and that mountain range, in one view, runs from East to West and, in another view, from North to South. One would have thought that if a county was to be taken as an exemplar and that the disadvantages and difficulties emerging from that county were to be regarded as either existent or nonexistent in other places, the geographical features might have been fairly accurately discovered and accurately revealed to this House. According to the Taoiseach, it was the mountain range which caused all the trouble.
Eventually at column 405 of Volume 177 of the Official Report, he said:—
We ultimately came to the conclusion that there was no need and no justification for altering Donegal at all——
That was on account of the geographical difficulty.
——and once we took that decision there seemed to be required a similar decision regarding Kerry and Galway.
At that point, Deputy McQuillan interjected: "Where is the range of mountains in Galway?" and, of course, there was not any range that could be elevated to the proper height for this particular point of argument. So the Taoiseach went on to say that the key decision "to leave Kerry and Galway unchanged was taken in regard to Donegal."
Donegal, therefore, gave the lead, and the difficulty in Donegal is a mountain range. That difficulty works this way: constituents may have to travel a considerable distance to see a Deputy or a Deputy may have to travel a considerable distance to see his constituents. Because of that difficulty then a decision was taken not to make any change in Donegal representation and that decision, as the debate shows, once it was taken, was to hold equally for Kerry and Galway.
I have searched, as I have said, through this debate to discover what were the conditions and the arguments that operated in the minds of those who drafted the legislation. At column 379 the Minister said:—
"...we must, as a legislative assembly, have regard to special circumstances and the practical problems facing a Deputy who takes a responsible view of his duties."
It may be that is a proper view to have, but it is not in the Constitution. The Constitution makes no allowance for special circumstances or practical problems so long as they do not amount to impracticability.
Later, again at column 379, the Minister said:—
"...such special circumstances are mainly geographical or topographical, though in some cases the claim for special consideration on these grounds may be reinforced by economic factors."
In the same column, speaking of legislation dealing with the Gaeltacht or undeveloped areas, he said:—
"One principle, however, which I submit is fundamental in this matter, is that it should be made as convenient as possible for all citizens who may wish to interview their Deputy on any serious matter affecting themselves, their neighbours or their district, to do so."
Again, the whole tenor of this is the difficulties of Deputies and constituents, difficulties that may upset convenience, and the fundamental point was—the Taoiseach had spoken of the big mountain range, and this was pivotal—that it should be made as convenient as possible for Deputies to see their constituents and constituents to see their Deputies.
Later, the Minister spoke of the variation in the density of population. Again, that is not a matter to which reference is made in the Constitution except that the ratio, and only the ratio, between the number of people in a constituency and the number of Deputies to be elected should be the same throughout the country. At column 380 the Minister spoke of people "concentrated in small areas" but scattered over a wide area and "sometimes in remote and rather inaccessible places." The conclusion was then reached that these "people do not enjoy the same facilities for consulting with a Deputy as people who live close to, or in the same town or city."
At that point geography raised its head for the first time and in the same column, column 380 of Volume 177, the Minister spoke of the West. He said:—
"The nature of the western seaboard adds considerably to the difficulty of a Deputy in keeping in touch with his constituency."
Columns 381 and 382 are full of the same matter with regard to the work a Deputy has to do and the difficulties constituents may have in reaching him. For that reason, the Minister said, the Bill might appear, if viewed in a purely statistical light, to err on the side of leniency so far as rural representation was concerned. By that time we were full into the swing of the argument that there had to be a bias in legislation in favour of the rural areas.
May I point the contrast once more? The Minister says that the Bill might appear to err on the side of leniency as far as rural representation is concerned, if viewed in a purely statistical light. The Constitution imposes on this legislation that this is a matter which should be viewed in a statistical light. In fact, it is statistics which govern the whole thing, so far as that is practicable, and that is the only reservation in the Constitution. Later the point raised by the Minister was that we must lessen the disparities between the city and the country— that is, the way in which people are grouped.
Finally, he came to another point, which is apparently regarded as fundamental, namely, that we should not go outside the city boundary, nor indeed as far as possible vary the area. The present electoral provisions change constituencies from their present boundaries. That is what I have gleaned from the Minister. I think I am correct in saying that the view expressed there is that the Minister, the Government and the Department were entitled to take into consideration difficulties; that they are entitled to look to the convenience of people and, in particular, to look at the rural areas. Having looked at these, with the idea of the convenience of Deputies in their minds, they were then definitely entitled to give a rural bias to the legislation.
The Taoiseach, at column 404, in the opening stage of his speech, said he wished to bring the question of practicability before the House:
"because there is an obligation... to justify the differences which appear in the Bill in the relationship between the number of residents and the number of Deputies in the constituencies proposed."
Then he says:—
"Most of us would regard it as impracticable to cross a county boundary in preparing Dáil constituencies."
I think that is the only time the word "impracticable" is used by either of the two people who put up what I imagine is the Government point of view on this whole matter. Again, I think in using the phrase in this context the Taoiseach showed he did not understand what the constitutional provision was. If I am right in thinking, and as I propose to show, that the word "practicable" means "possible", then there is no impossibility in crossing a county boundary. It may be undesirable and to be avoided as much as possible but that is not what the Constitution permits. It says that there is a ratio to be struck and to be preserved throughout the whole country as far as practicable.
The Taoiseach continued on that line. Having taken the line that it was impracticable, he went on to say that they decided to avoid any such arrangement and to stick to county boundaries as far as it was practicable, and also to make the fewest changes possible because there were very good reasons why changes should be minimised. There may be good reasons. The Constitution says that there is to be a ratio to be kept unless it is impossible to keep it. The Taoiseach at column 404 said—
The reference to practicability also requires us to have regard to geographical reasons.
Then he introduced the mountain which divides the east from the west of Donegal. The reference to practicability in the Constitution refers only to the ratio, to the number of people in an area whom each Deputy is supposed to represent. That is to be kept throughout the whole country as far as possible. Having decided that Donegal should not be changed, the Taoiseach said that a similar decision seemed to be required in regard to Kerry and Galway.
May I return to the Constitution? The provision is that "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". That certainly does not mean that it, say, a ratio were struck and it were found impossible to keep that ratio in a constituency, the rule of uniformity goes. The Constitution says that whatever the ratio determined is, it should be kept as far as practicable throughout the country. If it did emerge for good reasons, even for geographical reasons, that it was impossible to retain that ratio in one constituency, it does not mean that having broken through the rule with regard to the ratio for one constituency, the constitutional provision goes, that it disappears for the whole of the country.
At column 405, the Taoiseach spoke of the—
practical consideration of the travelling facilities available to Deputies,
and said that that was surely a practical consideration they were entitled to take into account when determining constituencies. He even went so far as to say:
...if none of these practical considerations existed, our obligation would be to make each constituency as near as possible exactly the same size in respect of population as the others, but, taking these practical considerations into account, it seems to me that the variations from that rule that are proposed here are quite justifiable. This idea that, within the limits fixed by the Constitution, we should tend to give greater representation to rural than urban areas has appeared in all the Electoral Acts we have passed here.
These two arguments raise two points: Practical considerations; practical difficulties. If there were these practical considerations, the Taoiseach admits we should have the same size in respect of population throughout the country for each constituency. The Constitution makes no reference to what are called practical difficulties. There is no reference to a difficulty except by implication.
In his second point, the Taoiseach said that the idea of giving greater representation to rural rather than urban areas has appeared in all Electoral Acts. If it has, it was known to the people who passed the 1937 Constitution. They knew there was a tendency to give representation of a biassed type to rural areas. If that is the case, they must have discarded the idea when framing the Constitution. They did not put into it a provision that better representation might be given in rural areas. The Constitution was passed with one phrase and that phrase in no way hints at giving better representation to the rural areas. With all the knowledge the framers of the Constitution had and with all the information in their possession, they did not put any provision into it per mitting that view to be taken.
At a later stage, the Taoiseach said:
The obligation placed upon the Minister for Local Government was to prepare proposals for an arrangement of constituencies which would keep that over-all limit and also an arrangement which would keep the existing constituencies in so far at it was possible to do so.
That is contained nowhere in the two Articles of the Constitution I have quoted and they are the only two which have any bearing on this matter. Later the Taoiseach spoke of the fact that the boundaries of the city of Dublin had been enlarged and extended from time to time. He said at the bottom of column 406:
There is a consideration there which we are entitled to take into account...
The Constitution does not say so. At the top of column 407, he says:
I would not argue it as necessarily the type of practical consideration that the framers of the Constitution had in mind.
There are many more things but the rest of the Taoiseach's speech is taken up with the distinctly rural bias, that it is good for the country that there should be, in connection with the next election to Dáil Éireann, a rural bias. The greater part of the rest of the Taoiseach's speech is taken up with that. Then he came again to this difficulty raised in County Donegal with regard to the mountain.
This phrase "as far as practicable" has been the subject of discussion in the courts over and over again. Before I go to legal opinions and judgments in the courts, I might read from that fount of all wisdom, the Oxford Larger Dictionary from which many years ago we got our definition of a republic and established that this country, even before the repeal of the External Relations Act, had become at least a dictionary republic. The Oxford Larger Dictionary defines the word "practicable" in this way; it says: "capable of being put into practice, carried out in action, of being effected, of being accomplished or done." It puts as synonyms the two words feasible and possible. The word feasible is defined as being "capable of being done, accomplished or carried out, possible or practicable." The words "practicable" and "possible" are taken as alternative synonyms as far as the dictionary is concerned and each has the meaning of capable of being put into practice, capable of being used in practice.
There is no argument produced to this House to say that it was not possible to keep the same ratio through the country. At a later stage in the supplement of the judicial dictionary we had I think in what was known as Stroud's dictionary "practicable" defined as "possible" and in particular it speaks of such things as the Factories Act where "all practicable measures" are supposed to be taken. That was simply defined in many courts as "those that were possible having regard to the stage of knowledge at the time, particularly the knowledge of scientific people." Certain regulations were made in connection with a variety of businesses in England and here also, for instance in connection with building, there were many regulations and those are imposed on people who engage in building to protect their workers, to ensure that they should take certain measures "as far as practicable" and court decisions have interpreted that for many years as "possible to be accomplished within human or normal resources."
In a couple of cases a contrast was made between certain statutory provisions where things are demanded "as far as practicable" and where things are demanded "as far as reasonably possible" and it has been held that the word "practicable" imparts a higher duty than what would be imposed if the phrase used was "so far as is reasonably possible." In one other case a bench of judges said that "practicable" cannot be considered as being equitable or fair or reasonable. It cannot be said to have these meanings. In quite a number of cases this whole matter has been analysed and the general run of it is that the court looks at something and says: No, you are not asked to do what is practical, what is easy, convenient, reasonable or fair; none of these considerations are involved by the use of this word: the use of this word merely means is it possible or not.
The word "possible" is, of course, a word which most people would agree that they know the meaning of. At any rate, it is defined as meaning "capable of being done." The word "possible" itself means "what may or can be done." Those being the views held by the courts——