Dáil Éireann debate -
Wednesday, 28 Mar 2007

Vol. 634 No. 5

Electoral (Amendment) Bill 2007: Report and Final Stages.

Mr. Gilmore

I move amendment No. 1:

In page 12, between lines 11 and 12, to insert the following:

2.—The provisions of section 1 regarding the manner of making nominations shall apply with any necessary modifications to European and local elections in lieu of the relevant provisions of the European Parliament Elections Act 1997 and Local Elections Regulations 1985 as amended by the Electoral (Amendment) Act 2002.

This issue was discussed on Committee Stage. It is related to the question of whether the legislation also requires to be amended in respect of local elections and the European Parliament elections. The Minister indicated on Committee Stage that it was intended to bring forward amending legislation in respect of the Local Government Act, which applies to local elections, and the European Parliament Elections Act. Arising from that I indicated that I would withdraw the amendment. I invite the Minister to record that such legislation will be brought forward in which case I expect I will respond correspondingly.

I would like the Minister to address a related issue. He will recall that when we debated the electoral legislation earlier this year the question arose as to the revision of the constituencies and the position vis-à-vis the census. At that stage what we had available to us were the provisional census figures. As we know the provisional figures, which were published last July, indicate that in the case of one constituency the ratio of population to Member of the House is in excess of that which is allowed for in the Constitution. Second, it is likely that the variance that exists in the ratio of Member to population as between one constituency and another is outside the tolerance which has been allowed by the courts to date in respect of the principle of equality of representation.

In response to those issues at the time, the Minister stated that it was his position and advice that what mattered here for the purposes of the Constitution was not the provisional census figures but the official figures when published. I draw his attention to the indication on the CSO website that it is intended to publish the final official figures on 26 April by which stage we will have the official figures by area and by population. Will the Minister inform the House as to what is his advice in respect of that? If the general election does not take place before 26 April, which appears to be the likely scenario, what will be the position post-26 April if by then the official census figures are published? As we know from past experience, it is likely that the official figures will confirm to within perhaps 100 or 150 the figures that were released in the provisional figures.

Minister for the Environment, Heritage and Local Government (Mr. Roche)

I thank the Deputy for raising both those matters. He has raised a fair point. As I explained on several occasions in the past, with regard to the census figures, the Deputy's latter point is correct in that the difference between the provisional and outcome census figures is likely to be marginal. There will be variances when we get down to the level we need to get for the drafting of constituency boundaries. Historically, that is where there have been significant differences. We do not know the variances until we have sight of the figures. The Deputy is correct in that it will be the last week in April that the CSO will publish the figures. As I indicated, as soon as figures are published, I intend to trigger the mechanism which will appoint the boundaries commission, which will then have six months to report and thereafter legislation will have to be introduced. That is entirely in accordance with the constitutional provisions, the law and the practice that has been adopted in the past.

My advice is firmly based on Supreme Court judgments. The position is that we use the final and not the preliminary figures. Preliminary figures are simply preliminary and notwithstanding that the variation between the preliminary and final figures tends to be minor, the final figures are those specified in legislation.

I agree with Deputy Gilmore that it is necessary to redraft the legislation for both local and European elections. As I explained on Committee Stage, we have adopted a different approach than was previously adopted. It was a case of picking a line and making a change which is an unsatisfactory approach to amending legislation. We have therefore rewritten an area of this Bill to avoid having to refer back to various Acts and amendments and this is the appropriate approach for any electoral legislation as such legislation must be clear and holistic in its approach. Deputy Gilmore is correct; it will be necessary and it is the Government's intention to introduce similar legislative change for both the European and local elections following the coming election or re-election. I agree with the Deputy's view that it is necessary to rewrite the legislation in both those areas. Whomsoever will stand here would take the same view.

Mr. O’Dowd

We accept due custom and practice and that the law must apply regarding the redrawing of constituencies. Will the Minister charge the constituencies review commission with examining the massive changes in local government boundaries which have occurred and are already obvious in the census, with the intention of a review of those boundaries? Will the commission review the crisis in some local government areas where city boundaries overlap with other county boundaries and there is not a consensus for future action?

Ms C. Murphy

The Constitution does not specify that the figures used should be the final census figures. The legislation which introduced the preliminary figures has not been tested. A significant number of constituencies show wide variations which are either positive or negative. It will be a case of constant catch-up because the census is held every five years and a Dáil term may be up to five years unless this is changed. According to the 2002 census figures Kildare North would have been entitled to an extra seat but this seat is only now available for this election. A constant catch-up is being played in the case of rapidly developing areas. This problem will continue as the population is expanding and Governments last for a full five years. Does the Minister favour changing or introducing legislation to allow for the use of the preliminary census figures? Has his legal advice given any prospect of or danger of a challenge, given that it is out of line with the Constitution in a number of locations? The Minister has refused to publish the legal advice but I ask him to inform the House whether advice suggested a challenge could be made. The variation between the number of seats and the population is significant and the value of the vote is not of equal value as it depends whether one lives in a rapidly developing area or an area where the population is declining; this is not the essence of democracy.

Mr. Gilmore

I wish to pursue the issue further. I agree with Deputy Murphy that the coincidence of election time with the publication of the census figures is giving rise to the mismatch. What will be the composition of the constituencies commission which I believe is fixed in the electoral legislation? What will be the commission's terms of reference? Given the increase in population in the State, will the Minister give the commission any terms of reference in respect of the number of Members of the House?

The sequence is the publication of the census figures on 26 April followed by the Minister triggering the mechanism to appoint a constituencies commission which then has six months to report and by which time the general election will be over. Is it his advice that this arrangement is sufficiently robust to withstand any possible challenge?

Mr. Roche

In answer to Deputy Murphy, my advice is that if I were to do something other than what I am doing, this would be subject to challenge. A matter can always be the subject of challenge as any individual with the ways and means can challenge any issue in the courts. It is certain that if I were to move in the direction which the Deputy is suggesting, it would be subject to a successful challenge because the court in its judgments has made it clear that the final report of the census must be used.

The Deputy asked whether a change in law in necessary and this point was taken up by Deputy Gilmore. It is always a matter that can be reviewed whether a principle may be changed. However, it is only in relatively recent times that Dála have been running for fixed terms. There is no provision in law for Dála running a fixed term; it is a coincidence that the last few Dála have run for fixed terms as will this Dáil run for its full term. Changing circumstances always need to be borne in mind when legislation is being drafted.

With regard to the constituencies commission, the terms of reference are established in Part 3 of the Electoral Act 1997 and I do not intend to depart from it. The membership of the commission is also specified in that Act. It will include a judge of the Supreme Court or, following consultation with the President of the High Court, a judge of the High Court nominated by the Chief Justice who shall be chairperson of the commission. The other members are the Ombudsman, the Secretary General of the Department of the Environment, Heritage and Local Government, the Clerk of the Dáil and the Clerk of the Seanad. I do not intend departing from this membership.

I have given an undertaking that I will trigger the mechanism within 24 or 48 hours, depending on the day of the week the CSO reports. I accept the Deputy's point that it is somewhat frustrating to be in a constituency where the numbers have grown very dramatically and where a new situation may pertain but it would be even more dramatic if we changed at this stage.

Ms C. Murphy

That was not my point. I refer to the equality of vote, irrespective of which constituency I represent.

Mr. Roche

This issue has been well tested. The Deputy will be aware of the number of Supreme Court judgments on this issue. The Supreme Court has spoken with clarity and I do not wish to do anything that would violate a decision which is constitutional in its nature and which has been handed down by the Supreme Court. It would be criminally unwise for any Minister to do that. There is a long history in this issue. I subscribe to the general principle that there should be an equality of vote although the Constitution does allow a variation which in itself somewhat trespasses on the general principle.

Deputy O'Dowd asked whether the commission will be examining local authority boundaries. The commission will not be doing so because that matter will be considered separately. The nature of the commission's examination is to consider local electoral divisions, LEDs, and where these should be drawn. The commission is not charged with looking at the other matter which lies at the core of the Deputy's question, namely, whether it should be responsible for resolving issues relating to boundaries such as those that have arisen in, for example, Waterford, Limerick and elsewhere. There is a separate mechanism to deal with such matters. This could be, but has not been, triggered. I am of the view that politicians should make decisions of that nature.

Mr. O’Dowd

What is the position vis-à-vis consent?

Mr. Roche

There is no great problem where consent exists. In Wexford, for example, the municipal boundaries were extended into the county council area by common agreement. There is no such common agreement between Limerick city and county councils. In the latter case, and in that involving Waterford, I suggest that a much more common sense approach, rather than a hegemonic attitude, be adopted by both the ambitious council and that which is trying to repel its ambition. Representatives of the councils should come together and negotiate.

Many of our cities and towns have historic boundaries that have nothing to do with modern considerations. The last county was created in 1604 and the decision in this regard had nothing to do with Irish tradition or culture or the arrangements that preceded the shiring of Ireland into counties. It is astonishing, therefore, that there is such vigorous support for proposals in this area.

I attended a meeting of Limerick City Council at which major ambition was evident among councillors from across the political divide to change the boundaries and extend them into counties Clare and Limerick. On a radio chat show at the time, a lady from the Clare side of the boundary stated that if I were to facilitate this change it would be the worst travesty of natural justice since the day the Wehrmacht marched into Poland. Her contribution demonstrates some of the attitude of locals towards the proposal. People in Kilkenny are concerned that if we were to cede part of the county to the city of Waterford it would have a major impact on the county hurling team. Even though I was born and reared in Wexford and hurling is the sport I most actively follow, I would be rightly criticised by the people of Kilkenny if I was to eviscerate their hurling team's chances going forward. Wexford will be obliged to find another way to defeat Kilkenny.

I accept that point made by Deputy O'Dowd but I am of the view that, as has been the case in a number of instances, a smidgin of common sense would resolve the problem. The work of the commission will not have a direct impact on that.

Amendment, by leave, withdrawn.

Amendment No. 2 not moved.

Bill received for final consideration.

Question proposed: "That the Bill do now pass."

Minister for the Environment, Heritage and Local Government (Mr. Roche)

I thank the Members who contributed to the debate, particularly Deputies O'Dowd and Gilmore who put a huge amount of effort into their contributions. I agree with Deputy Gilmore that there are quite a number of matters that need adjusting, particularly in the areas of local government and European elections. These matters will be dealt with in separate and appropriate legislation. The point was made on Committee Stage that this is a better way to approach legislative change, particularly in the context of electoral law because it makes it readable. This approach should be taken in respect of local government and European elections.

Question put and agreed to.