Vol. 50 No. 15
Tairgim Leasú 7:—
I gCuid I, Alt 4. 2º, líne 52, ", a mhéid is féidir é," a scriosadh;
agus
I gCuid II, Alt 4. 2º, líne 58, ", so far as it is practicable," a scriosadh.
I move amendment No. 7:—
In Part I, Section 4.2º, line 52, to delete ", a mhéid is féidir é,";
and
In Part II, Section 4.2º, line 58, to delete ", so far as it is practicable,".
Tá dhá leasú ann—7 agus 8. Is dóigh go mbeidh an Seanadóir toilteanach iad do thógaint le chéile?
The Senator will agree, I think, to discuss the two amendments, No. 7 and No. 8, together?
Yes, Sir. These two amendments relate to the second sub-section of Section 4, the last portion of which reads:—
"...the commission shall proceed to determine or to revise the boundaries of the constituencies on a fair and equitable basis, having due regard to geographical features and established administrative and territorial divisions and, subject to those considerations, in such manner that 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 effect of my amendments would be to remove the words "so far as it is practicable" and to insert the words, "to within a tolerated variation of five hundred either way". The purpose of the two amendments, which must be taken together, is to remedy a defect in the present wording which seems to me to be insufficiently precise. The aim of the sub-section is, clearly, to make representation bear a uniform relationship to population throughout the country. The phrase, "so far as it is practicable" seems to me, however, to be unwisely vague. I think you must tolerate a certain variation, but I should like to see that variation kept within precise bounds. If the ordinary size of the constituency is to be about 25,000 or something of that kind, then, I do not think any constituency should vary by more than 500 persons either above or below that average figure. That is the purpose of my amendments; in other words, to employ more precise terms than the phrase "so far as it is practicable".
I do not know if Senators have quite realised how complicated it may well prove to be in certain areas to draw the boundaries of constituencies so as to ensure that the population of constituencies throughout the country "shall be the same". I suggest that it will be very difficult to draw such boundaries.
The origin of the word "gerrymander", I believe, came from America, where the appearance of the drawn constituency was said to look like a salamander, and somebody said, making play upon the candidate's name, "It looks more like a ‘Gerry'-mander to me." I am afraid some of our constituencies, without having the meaning of corruption that the word "gerrymander" conveys, will have very peculiar shape. I do not mean peculiar shape politically; I mean just on the administrative side. If one tries to divide up Dublin or, indeed, any county so as to provide for the same population in every constituency, there will be some pretty queerly-shaped constituencies. I do not know whether that fact has been sufficiently adverted to by people discussing this Bill so far. Of course, one of the great advantages of the multiple-seat constituency is that if there is a variation of population all you need to do is to say there will be one more seat or one seat less in that constituency, and you can have as a constituency a normal administrative unit like a county or a portion of a city. But, when the constituencies in Dublin, for instance, or in Cork, are redrawn in order to try to have in every constituency practically the same population, in accordance with the desire of this sub-section, the arrangement, the drawing, the shape of these new constituencies will be very peculiar indeed.
I do not believe that there is any intention on the part of the Government to arrange for gerrymandering or anything of that kind. I do not accept that suggestion. But I do believe that if it is made very precise that constituencies have to be, within a tolerated margin of 500 each way, that is to say, within 1,000 persons, identical in size, then you render it extremely difficult for anybody in future to attempt anything like gerrymandering. Whereas, if you leave it vague, and just say "so far as it is practicable", you could argue a lot about that phrase and say, "That is not practicable but this is." I suggest that by adopting my amendments, it is made more precise, the meaning is made more precise, and it is made less likely that there will be any attempt to overload certain constituencies with a certain type of voter, and to underload certain other constituencies.
Senator Sheehy Skeffington disclosed the reason for the language in this sub-section when he pointed out that if you were to have precisely the same number in every constituency, some of the constituencies would have pretty queer shapes. The commission has not only to produce constituencies having as far as it is practicable the same population, but they also have to advert to other very important considerations. They have to have regard to the local administrative convenience of the people and they have to revise the boundaries of the constituencies on a fair and equitable basis, having due regard to the geographical features and established administrative and territorial divisions.
When the constituencies were being revised in 1947, it was difficult sometimes to get a constituency to coincide with a county or county borough. In the case of Clare, the Minister had to propose to the Dáil to take in a parish or two from Galway and, in the case of Wexford, to take in a parish or two from Carlow. If we were to say to the new commission that the overriding consideration is equality of population in every constituency, many more counties and county boroughs would be broken up. Take, for example, County Louth and County Monaghan. I do not know what the populations are, but suppose it worked out that in County Louth the population was sufficient to give three seats within the county boundaries on the basis of 25,000 per seat and you found that in County Monaghan you could not work in three seats, unless it was on the basis of 23,000 per seat. It is more important from the point of view of the convenience of the voter, the convenience of administration and the preparation of registers that, if possible, County Monaghan should be given three seats and County Louth three seats, despite the difference of more than, 1,000 votes per seat.
We come then to the question of County Wicklow. County Wicklow will be a headache for the commission. It always was. There are mountains running through the county. It may be that in West Wicklow, there is a population of 21,000 and in East Wicklow, across the mountains, there are, say, 50,000, which would work out, if you split East Wicklow into two, at 25,000, whereas, in West Wicklow, there would be only 21,000. It is very difficult to cross the mountains. There are very few passes through them and, if you put a parish or two across the mountains into West Wicklow, it would be very inconvenient indeed. I think it would be very wrong for us to tie the commission to the very narrow limits suggested by Senator Sheehy Skeffington. One of the things the Senator may be certain of is that people will take an interest in what is going on, and I think the commission itself is so arranged that if the chairman departs from a fair and equitable basis of distribution in the revision of the constituencies, the commission's report can be turned down by the Dáil. I think the checks and balances and the terms of reference are as complete and comprehensive as are necessary.
To go as precisely into the matter as the Senator suggests might lead us into difficulties, and I do not think it is necessary in order to ensure that the constituencies will be revised on a fair and equitable basis by the commission.
The Minister has told us that he does not think the limits suggested by my amendment would be wide enough, but I should like to ask him, if that is so, what kind of outside limits would he consider likely when the commission has to draw up constituencies so that "the population of each constituency shall be the same throughout the country, so far as it is practicable"? My suggestion is that they should not vary by more than 1,000, that is to say, by more than 500 either way. The Minister indicates that they may not be the same in all cases, though they are required to be the same.
Though the phrase in the sub-section is qualified by the wording "so far as it is practicable," the Minister tells us they are, in fact, going to differ by more than 1,000. Some of these constituencies may, in fact, have only 20,000 inhabitants and, therefore, that would be quite a departure from the idea that they are all going to be the same. The question I want to ask the Minister is what sort of tolerated variation does he anticipate? What is the order of magnitude of the maximum variation that he anticipates as proving necessary in certain cases?
It would be impossible for me to answer that question.
Would it be 5,000 or 6,000?
I could not answer that. All I know is this: that the commission will have to have regard, due regard, to the geographical features, and established administrative and territorial divisions. They will have to have regard to those and I think that the tendency will be, if they can divide a county into three or four or five constituencies neatly, they will do so, even though it does mean some difference in population between the constituencies. They will have to have regard to the administrative convenience, to the convenience of working the constituencies.
There might be a very big variation.
That would be a matter for the commission.
I should like to point out to Senator Sheehy Skeffington that sub-section (3) of Section 2 provides for a variation between 20,000 and 30,000 of a population. The average between them, therefore, would be 25,000. If the Senator's amendment were passed, we could only have a variation of 500 either way, and that would negative sub-section (3) of Section 2 which has been passed already, and which allows of a variation between 20,000 and 30,000 in a constituency.
Senator O'Donovan is under a misapprehension, because it is quite clear, under sub-section (3) of Section 2, that it would be possible to decide to have the population in each constituency fixed at any one number between 20,000 and 30,000. You could decide that it shall be 22,000 or that it shall be 27,000. What this sub-section says, and I quote, is: "...the population of each constituency...shall, so far as it is practicable, be the same throughout the country." My question is, does this qualifying phrase "so far as it is practicable", cover differences of 5,000 or 6,000 population in constituencies? If so, I would just make two final points. The first is that this demonstrates the unfairness of the scheme we are being asked to introduce, when you compare it with multi-seat constituencies, and, secondly, it would leave me distinctly uneasy as to what kind of constituency we are finally going to get.
I think it would be much easier to fit the single seat constituencies within the ordinary established administrative and territorial divisions than to fit the present five, four or three seat constituencies under P.R.
Cuireadh an Cheist: "I gCodanna I agus II go bhfanfaidh mar chuid den alt na focail a tairgtear a scriosadh amach," agus faisréisoadh go raobhthas tar éis glacadh leí.
Tairgim leasú 9:—
I gCuid I, alt 4. 4º, línte 10 agus 11, "agus ní tairgfear aon tuarascbháil mhionluchta" a scriosadh.
agus
I gCuid II, alt 4. 4º, línte 13 agus 14, "and no minority report shall be presented" a scriosadh.
I move amendment No. 9:—
In Part I, Section 4. 4º, lines 10 and 11, to delete "agus ní tairgfear aon tuarascbháil mhionluchta";
and
In Part II, Section 4. 4º, lines 13 and 14, to delete "and no minority report shall be presented."
This amendment relates to sub-section (4) of this same section which reads as follows:—
"The Commission's report shall be signed by the chairman or other member so directed by the commission, and no minority report shall be presented."
My amendment—and the same amendment was put down by Senator Quinlan and Senator O'Brien—recommends the deletion of the words "and no minority report shall be presented". The object of the amendment is quite clear, but the object of the insertion of these words "and no minority report shall be presented" is far from clear. If there is a difference of opinion on any commission, it is quite normal for the member, or members, dissenting to be able to publish their opinion as a minority report and to have it incorporated as a minority report with the majority report. That is the universal practice in regard to all commissions. I think I could say it is almost universally the case with every Government commission that has been set up that there has been a minority report of one kind or another. In the Council of Education you had two or three minority reports, which were duly signed and printed and circulated with the official report of the council. I could cite other examples, but there is no need to do so. The almost universal practice, therefore, is that a minority report can be brought in.
Even in the Supreme Court, it is quite usual for one or other of the judges not merely to dissent from the majority judgment from the Bench, but to give his own judgment, his own minority judgment, and to give it just as publicly and with just as much carrying-power, as it were, before the public as in the case of the majority judges. It is not considered to be improper in judicial circles for that to be the case; it is not regarded as in any way impairing the prestige of the Supreme Court or the High Court; and I am at a loss to understand why the minority members of this commission, if there be any, should be specifically precluded from publicly bringing in their minority report.
I am, of course, aware that if there is minority opinion on this commission, nothing can prevent them from making public their feelings and beliefs, but I see no reason why they should be prevented from doing so officially. I see no case at all for desiring to smother any tendency there might be to issue a minority report. What, in fact, are the framers and sponsors of this Bill afraid of in precluding any potential minority on such commission forever in the future—it is not just this first commission but any such commission —from giving their views? I do not think that this gives a very good notion of the sponsor's respect for minority opinion when it exists, and I feel that while it is clear that minority opinion should not be allowed to overrule majority opinion nevertheless it ought to have the right to be as publicly and as officially expressed. Therefore, I move that these words be deleted.
There is nothing unique in this sub-section. Senator Sheehy Skeffington has said that in the Supreme Court minority judgments are often given and that they give judgments other than the one adopted by the majority of the court, but in fact under Article 26 of the Constitution, where a Bill is referred to the Supreme Court to decide whether or not it is repugnant to the Constitution, the Constitution specifically lays down that a minority judgment will not be given. To the best of my recollection, the same applies to the judgment of the Court of Criminal Appeal, so that, whereas sometimes in some commissions and some courts minority reports and judgments are given, in many other cases they are not given.
It is quite obvious that this commission may think up several solutions to the problem of any particular constituency, all of them quite good solutions, but one solution must be adopted. I do not see what purpose would be served by having possibly two or three minority reports as well as the majority one. This report will be placed on the Table of the Dáil and it will be confusing to have the Dáil in the position of having to consider whether they approve or disapprove of the report, if in fact it means they must consider whether they approve or disapprove, not of one but of two or three reports. Members of the commission will all be members of the Dáil and if they feel they have a better solution than the solution incorporated in the majority report, they can raise it in the Dáil and if the Dáil considers it is a better solution than the majority one, it is open to the Dáil to adopt their point of view.
I am entirely in sympathy with this amendment. It does seem strange that there should be provision in the Constitution, which this Bill proposes to insert, against the issue of a minority report, when the factual position can be, and probably will be, that the view of the minority will be freely expressed in Dáil Éireann, once the report of the commission itself has been presented to the Dáil. There seems to be no good reason for attempting to achieve something which will not be achieved in any event.
Senator Ryan has just referred to the fact that there may be circumstances in which the commission would have several good solutions to a problem. If that be the case there is no reason why the commission, which has deliberated on the matter over a period of six months, should not give the benefit of their deliberations to the Dáil in the form of a minority report. It is true, as Senator Ryan has said, that there is provision in the Constitution against the Supreme Court indicating more than one opinion on the constitutionality of a Bill, but there are very good reasons for that. I think that provision was put in by amendment in 1941 by the Legislature—it was not in the original 1937 Constitution—and it is there because there are good reasons why dissenting judgments should not be given in a case of that kind. But there is no reason in a case of this kind for having this provision when dissenting opinions would, in any event, be expressed.
Earlier, the Minister for External Affairs chided us and, indeed, taunted us with the accusation that we had not put down any amendments to this part of the Bill dealing with the commission and said that it had been indicated in the Dáil that any reasonable amendments put down would be considered. I think this is an eminently reasonable amendment and I see no reason why the Minister should not accept it.
There is little I can say on this amendment. It is one of those self-evident ones, because I cannot see why, if this commission is to be as fair and as impartial as has been suggested in the debate, there should be anything to fear from having minority reports. Why not get the views of the minority? It is said these will be expressed in any case, so why not give them in black and white and leave them on the records, together with the majority view? After all, there is the provision which requires a majority of two-thirds of the House for a change. What have we to fear therefore? I think this amendment, more than any other, should be a test of the good faith of the Government in approaching this matter. I ask: Are the Government prepared of their own volition to take this amendment back to the Dáil? The Bill is going back in any case since the two main provisions have been deleted. Let them, therefore, take it back to the Dáil and insert this most reasonable amendment. There is nothing more I can say until I have heard from the Minister why this very reasonable course should not be taken.
I think everybody will agree that it is a rather complicated matter to divide the Twenty-Six Counties into 140 or 150 seats or whatever the number may be. Undoubtedly, if different individuals were given the job, they would do it somewhat differently. Perhaps the six members of the Dáil would have six different opinions about minor details. The design of this amendment of the Constitution is to give the Government and the Dáil a means by which there can be a fair and equitable distribution and revision of the seats, and by which the decision as to the boundaries will be taken by a commission that is independent of the Government and the chairman of which is in a very independent and influential position. In one way, you could regard the six members of the Dáil as his assessors to give him advice.
In the sub-section we have just passed—sub-section (3) of Section 4— we have empowered the chairman of the commission to present to the President a report setting out the boundaries of the constituencies, which he must determine if there is not a majority or unanimity in the commission. We give him that right because we want a method by which he can come to a conclusion. This is not like the normal proposition put up to a debating society. A conclusion has to be arrived at. It is difficult to revise the boundaries—it is a complicated affair—and we give the chairman of the commission the right, in the last resort, to make a recommendation. His recommendation will carry the day, if it is not turned down by a two-thirds majority of the Dáil. I explained that the reason his recommendation would carry the day, if not turned down by two-thirds, is that it gives that part of the House not voting for the Government a better chance than if the chairman's report could be turned down by a simple majority.
Senator Ryan pointed out that while a minority of one, two or three members cannot make a formal report to the Dáil, they can of course put in amendments to the report of the chairman if they do not agree with it. They are members of the Dáil. They can put in amendments to the report and if a majority of two-thirds concur in their criticism, the report can be turned down.
This again is one part of the Bill that has been under discussion for a great number of months, and in spite of that, there has been no amendment to change sub-section (3) which gives the chairman the power to make the report although there is not a majority of the commission in favour of the report. We think it is a clear-cut way of solving a difficulty, if the commission does not agree. It is the best method we could think of to meet this situation, and I think any reasonable person will agree with us that it is a workable solution and that it is not unfair to anybody.
Senator Ryan said he does not see the purpose of having a minority report, but I think that that can be related to the fact he mentioned that, under sub-section (2) of Section 5, Dáil Éireann is to be given the right to amend the report if it so desires. For the purpose of amending it, Dáil Éireann ought to be in full possession of the facts, ought to have full knowledge of the facts, and to have not merely a majority report but also a minority report. If you suppose that they might be likely to amend the report, then you are supposing that it is possible for Dáil Éireann to take a different view from the majority report. Consequently, you are conceding it as possible that Dáil Éireann might share the views of those who would be likely to draw up a minority report. That is the implication of the power granted under the subsequent sub-section to Dáil Éireann to amend the report by a two-thirds majority, if it sees fit. Therefore, the purpose of allowing the minority report to be printed would be in order to allow the Dáil to judge whether or not it wants to exercise the power here vested in it to amend the majority report.
It is unfair to say: "We give you the power to amend the majority report but we will not tell you what the minority report is, and will not even allow it to be published. We expect you to find that out from the speeches of the members of the minority when they go to the Dáil." That is not the orderly or methodical way of setting about it. Therefore it seems to me that it ought to be regarded as perfectly legitimate that (a) there should be a minority report, and (b) it should be presented side by side with the majority report.
I do not believe that there is anything disreputable in the conception of a minority report. It could be perfectly conscientious without necessarily being right. It is quite possible that you could have a conscientious minority report, with which the majority of the Dáil or the ordinary citizens would not agree, but I do not think that that would be a disgrace in any sense. I do not think that it is essentially disreputable to indicate that there is a minority as well as a majority view. Let us not be afraid of printing the minority report side by side with the majority report. Let the Dáil and the people judge it on its merits. The Minister has said that the constituents will judge. Let them judge with the full knowledge of the facts, printed and placed clearly before them.
Nothing the Minister has said has in any way justified the decision to suppress the minority view on this, but it does seem to be very much in keeping with the whole character of the Bill as suppressing minorities everywhere. Here we have the thing taken to the extreme— where even a minority report of the commission is suppressed. That speaks for itself. Personally, I again challenge the Minister to show the good faith of the Government in this by, of his own volition, adopting this very reasonable amendment.
It is not as if, as was suggested by the Minister, there were five or six equally good solutions to this problem. That is not what the disagreement will be about. The disagreement will be: will the town of Youghal be included in East Cork or in Waterford? That is the sort of problem we shall have to face. If there is any attempt at gerrymandering—and I hope there is not— the minority should have the opportunity of expressing that in their report, and have that report fully prepared and documented.
Remember that a minority report, drawn up as a reasonable document, has to give reasons for the changes it proposes in a majority report. It is not just a question of redrawing all the constituencies, with every river boundary and every townland, and all the rest. It will be primarily concerned with the location of our towns and you can appreciate how important and vital that is, when you consider the fact that we have got to carve up the country into at least 140 constituencies. In fact, it would be far better if the whole thing were given over to some established, non-political men in that field, who would go ahead and carve it, according to some principle or other.
I did not have an opportunity of speaking on one point earlier. Due to the question being put at 6 o'clock, I yielded, but I want to make a point on the question of having confidence in this commission. I would have far more confidence if we had some official, such as, say, the ex-director of the Statistics Office, as chairman, somebody whose business it is to deal with facts and figures and who has done so all his life and has a reputation for absolute impartiality. Such is the man I certainly should like to see in this position.
I might conclude on one other point which harks back to the last one, but possibly I will be given indulgence because of the fact that I yielded at 6 o'clock. I disagree very strongly with Senator Donegan on the question of the political appointment of judges. I think the time has come, in this advanced State, when that, too, should be handed over to the Local Appointments Commission.
I am afraid the Senator is now going back——
I made a concession just before 6 o'clock when I yielded——
There was no question of yielding; we were under no obligation to the Senator.
The Senator will move away from that point.
Every fair-minded person will regard the Government as being on trial in this amendment more than any other amendment that has been tabled. I am not pressing this amendment, and I do not think Senator Sheehy Skeffington is, because we feel it is an amendment that the Government should make on their own volition. It is up to the Government to make it and we shall judge their attitude to minorities by this amendment more even than by what they set out to do in regard to the single seat constituency and the nontransferable vote.
I should like to test the feeling of the House on this amendment. I think we have made a case that has not been effectively answered. I may say that I am rather disappointed to find just now that the ranks of Labour and Fine Gael are so sparsely populated.
The Senator has not got the support he expected.
It was my hope that we might be able to have an effective voice expressed on what seems to me to be quite an important question.
Cuireadh an cheist—"I gCodanna I agus II go bhfanfaidh mar chuid den alt na focail a tairgtear a scriosadh amach"—agus faisnéiseadh go rabthas tar éis ghlacadh léi.
Vótáil.
Will Senators desiring a division please stand?
Dr. Sheehy Skeffington rose.
The Senator will be recorded as dissenting.
Tairgim leasú 10:—
I gCuid I, alt 4, fo-alt 6º a scriosadh;
agus
I gCuid II, alt 4, fo-alt 6º a scriosadh.
I move amendment No. 10:—
In Part I, Section 4, to delete sub-section 6º;
and
In Part II, Section 4, to delete sub-section 6º.
This amendment does seems to me in many ways to be the most important amendment. What I am asking for is the deletion of the sub-section which says:—
"No court shall entertain any question as to whether the commission has been properly constituted or any question as to whether the determination or revision of the boundaries of constituencies set out in their report has been properly carried out."
I am asking for the deletion of this clause for the following reasons. First of all, I mentioned this on the Second Stage as what appeared to me to be a vital point, and yet no speaker on any side of the House has made any further reference to it. There was no ministerial comment, there was no comment by any speaker on the Government side, and no comment from any other speaker at all. Yet it seems to me to be a vitally important principle. We are asked so subscribe to the view that this commission shall be above the courts, that no appeal from its findings shall lie with any court in the land, as to whether it has been properly constituted. We must accept that, we cannot test it, and we cannot appeal or determine whether its work has been properly done. These questions cannot be tested in the courts. It is to be, in this very odd way, placed above the courts both as to its constitution and its workings.
As I pointed out on the Second Stage, Article 46 of the Constitution lays down certain conditions for the amending of the Constitution. Article 46 also makes it quite clear there are certain ways in which we cannot amend the Constitution, and one of those ways is to amend the Constitution and incorporate in the proposal to amend the Constitution some "other proposal". I suggest that this is another proposal. This is a proposal to remove from the courts power of decision, or power to act as an appellate court, powers which are at present vested in the courts. I assume that to be the case, because clearly if this clause does not remove from the courts power at present vested in them, then this clause has no function at all. We are aiming then, to remove from the courts power of decision and power of being an appellate body, which the courts have now, and would continue to have, if we did not pass this sub-section.
Nevertheless, Article 46, Section 4 of the Constitution states:—
"A Bill containing a proposal or proposals for the amendment of this Constitution shall not contain any other proposal."
This is legislation to amend the Constitution in relation to the way in which we elect our Parliament. It is in effect an electoral amendment. It is a way of changing our electoral methods, and the Constitution specifically says that "a Bill containing a proposal or proposals"—and it is clear there are several proposals here in relation to our electoral system—"for the amendment of this Constitution shall not contain any other proposal." Yet this sub-section contains what is clearly another proposal, a proposal that the courts shall be deprived of some of their existing powers.
I regard this as extremely important. I am disappointed that no spokesman for the Government thought it of sufficient importance to comment upon it. I suggest that it is extremely unwise of the Government to persist in asking for this sub-section, for the very simple practical reason that even if they are convinced that this clause does not make the Bill repugnant to the Constitution, nevertheless it will be possible if this clause remains in the Bill, for any citizen, as I understand it, to make application to the courts to find out whether or not this Bill is rendered repugnant to the Constitution by this very sub-section. If that were to happen, it is quite clear that, during the time the courts would have to decide whether or not by reason of this clause the Bill was repugnant to the Constitution, it would not be possible to hold the referendum. I agree with Senator Mullins when he says there is no real hurry about the referendum. He said at column 892, of Volume 50 of the Seanad Debates of 19th February, 1959:—
"Senator Sheehy Skeffington asks what is the reason for the haste. There is no reason for the haste."
I agree that it does not matter very much whether we take the referendum in 1959, 1960 or 1961, but, in case some members of the Government do not agree with him on this point, and are anxious to hold the referendum reasonably soon, I put it to the Government that they might consider the advisability of dropping this sub-section which, in my view, deprives the courts of powers which they have, and which would enable any citizen to question the courts as to the viability under the Constitution of this Bill. Therefore, I move the deletion of this sub-section.
As a non-legal person, may I say that the view expressed by Senator Sheehy Skeffington commands my sympathy. In every society there are various bodies from, say, the urban council up to the highest form of council, Parliament. Similarly, in the case of the courts you have District Courts, Circuit Courts and eventually the Supreme Court. The essence of the approach in the Constitution is the separation of the powers, not of course to the extent that exists in the United States but the essential separation which means that the courts are not alone to be independent of the Government but are to be in existence as an appellate body in relation to the Government. Article 34. 4. 4º provides:—
"No law shall be enacted excepting from the appellate jurisdiction of the Supreme Court cases which involve questions as to the validity of any law having regard to the provisions of this Constitution."
The proposal here is to put something new into the Constitution. Not being a lawyer, I certainly cannot tell whether that is strictly legal or not, or whether the Oireachtas may put something into the Constitution by means of a Bill such as this. Of course, I admit, if this Bill is passed by the people, it will thereby appear to get a certain validity. Let us split this sub-section into two parts:—
"No court shall entertain any question as to whether the commission has been properly constituted,"
—that could stand. Then there is the completely separate point which I consider the more serious:—
"or any question as to whether the determination of the boundaries of constituencies as set out in their report has been properly carried out."
There is no reasonable doubt that this commission is a subordinate body, relatively speaking. It is not in the same position as, say, the Oireachtas, or the Supreme Court, to take two bodies that exist already under the Constitution. Therefore, as regards the first part of the question, whether the commission is properly constituted, although it is a serious matter politically, from the legal point of view that provision could be left in. However, as regards the second part, it is not reasonable to take away from the courts, and particularly from the Supreme Court, its appellate jurisdiction as provided for in Article 34. 4. 4º. The Constitution has a global provision in it which is being taken out by a side-wind in a provision for the election of Deputies to Dáil Éireann. I am extremely doubtful about the propriety of this procedure.
The idea of this provision is to ensure the independence of this commission which if not a judicial body in the normal sense, is a semi-judicial body presided over by a judge of the High Court or Supreme Court. There is already an implied provision in the Constitution for dealing with any misbehaviour by a judge or by the President. Article 35.4.1º provides:—
"A judge of the Supreme Court or the High Court shall not be removed from office except for stated misbehaviour or incapacity, and then only upon resolutions passed by Dáil Éireann and by Seanad Éireann calling for his removal."
Under Article 12. 10. 1º, there is the provision:—
"The President may be impeached for stated misbehaviour."
These provisions in the Constitution still stand and the Oireachtas will have power to deal with misbehaviour on the part of the chairman or on the part of the President in the appointment of the chairman. The idea in this sub-section is to have this commission in as judicial a status as possible. In other words they will be in the position of being dealt with by the Oireachtas.
Above the Supreme Court?
It is in order to preserve the complete independence of that judicial commission that this sub-section is there. There is also the following provision in Section 5. 2º:—
"If, within the next 14 days on which Dáil Éireann has sat after the report is laid before it, a resolution amending the report is passed by Dáil Éireann and supported by not less than two-thirds of the members present and voting, the report shall be amended accordingly."
That is similar to the provision whereby the President can be impeached. The commission will be enabled to act in an independent judicial capacity; the President and chairman are answerable for their actions; and then there is the two-thirds majority stipulation in regard to the amendment of the report of the commission. Therefore, the supremacy of the Oireachtas and the independence of the commission are preserved at the same time.
May I draw the attention of the House to Article 26 of the Constitution which relates to the reference of Bills to the Supreme Court:—
"This Article applies to any Bill passed or deemed to have been passed by both Houses of the Oireachtas... expressed to be a Bill containing a proposal to amend the Constitution..."
Therefore, the Bill which is going through this House makes reference to the Supreme Court and a court consisting of not less than five judges will consider every question referred to it. In other words, this Bill may well be referred to the High Court on this very section if the President so sees fit. I shall be very surprised, if this Bill is referred to the Supreme Court, if the Supreme Court does not hold that this provision in this Bill cannot be written into the Constitution.
Whatever the merits of this phrase which it is sought to delete, it is quite clear that the commission is in no way subject to appeal to the Supreme Court. In relation to the independence of the commission, I did not really understand Senator Lenihan. The High Court is Independent, but there is an appeal. In some cases, the Chief Justice sitting for certain purposes may have an appeal against his decision to the Supreme Court and there is no suggestion at all in that state of affairs that the Chief Justice is not independent in the exercise of his functions. The independence of the commission will not be impaired in the slightest if it is subject to appeal to the courts in the ordinary way, that is to say, if proceedings for instance were taken on appeal for the purpose of allowing the court to determine or examine and give a judicial interpretation of the meaning of sub-section (2) of Section 4, where it says:—
"...in such manner that 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."
There may be arguments for and against this, but most certainly, Senator Lenihan has not explained in any way why this provision should be introduced in this proposed amendment of the Constitution. It is quite clear that the independence of this commission would not be impaired in the slightest if its decisions were subject to appeal to any court. There is no doubt at all about that.
Since this Bill came before the House, we have heard plenty of talk about the liberty and the rights of the people. We, on this side, were taunted that we were trying to prevent the people from exercising their views on this Bill. The unfortunate thing is, that too little attention is being paid to the things which ensure liberty. This commission is above the courts and that is altogether wrong.
It is a court.
It is above the courts of our land, above the Supreme Court and above the High Court. We should be jealous of, and guard, the rights and functions of our courts in a true democracy. If this court does anything wrong, I do not see why, if we think so much about the rights of individuals, any individual should not have the right of appeal either to the High Court or the Supreme Court. I claim the courts should be the supreme authority, especially in a country like this, where we so value liberty, democracy, and the rights of the people, the rights of individuals.
I was not quite satisfied with the point made by Senator Lenihan, when he said that, after all, if a judge behaves improperly he can be removed by a two-thirds majority of the Dáil, and so on. He did not tell us what we can do if the commission is not properly constituted. Supposing the Ceann Comhairle or, as he is called in this Bill, the Chairman of the Dáil, does not properly constitute the commission, what redress have we? I did not hear Senator Lenihan tell us anything about such redress, and all this clause says is that, at any rate, we can have no recourse to the courts. Senator Lenihan has told us that we might have the judge removed from office, if we are dissatisfied with him, but he does not tell us what we can do about the commission if it is not properly constituted.
I should also like to say that I wonder why we have not heard from the Minister on this, because it is certainly a matter that should be of importance to the Government.
The commission which is being set up to revise the constituencies must have its work brought to a clear-cut conclusion. It must meet every 12 years, and we must see to it that the report of one commission, revising constituencies, is capable of being implemented before another 12 years have elapsed. We know that certain lawyers are very quick to take delaying actions. Even though they will not be put to any practical effect, they are obstructive and it is necessary to make certain that when this commission reports, and its report is adopted by the Dáil, it will go into operation and will not be open to unnecessary obstruction.
After all, the courts have to take it for granted when the President signs a Bill which is deemed to have been passed by both Houses of the Oireachtas—the courts have no say in the matter—they have to accept the certificate that it has, in fact, been passed by both Houses of the Oireachtas. In this matter which affects the Dáil only, when the Dáil finally approves, or accepts, the reports of the commission, it is only right and proper that the courts should regard that act of the Dáil as having been legally concluded. There is no other way out, in any event. It has to be brought to a conclusion. It is necessary for the constituencies to be clearly and legally defined, and that the matter should not be capable of being dragged out over a number of years.
The chairman of the commission will, of course, be a judge of the Supreme Court or the High Court. There is no reason why he should not be able to give a binding decision on a matter of this kind, a binding decision, subject to ratification or rejection by the Dáil. There has been a lot of criticism of the judge being brought into the matter at all. The Leader of the Opposition in the Dáil denounced as a political lickspittle anybody who would be appointed by the President as chairman of the commission.
That is not what the Leader of the Opposition in the Dáil said, of course.
The Senator is always looking for quotations, and he will get them. Here it is. It is a long old sentence. It is given in column 1030 of Volume 171, 26th November, 1958. The President is supposed to say this, in conclusion:—
"...I will appoint CD., who is a tool of the Government in power, who is what the late Kevin O'Higgins would have called a legal careerist, who got his job on the bench because he was the lickspittle of a political Party."
Sir, what I understood the Minister to say was that the Leader of the Opposition in the Dáil said that anybody whom the President would appoint would be a lickspittle. The Leader of the Opposition in the Dáil most certainly did not say that.
That is the implication.
It is all implication.
That is a quibble, anyhow.
He said: "I will appoint CD." I will read the whole thing, if Senators want it. Senator Hayes has got this technique of denying. First of all, he says that a speaker said something other than what he said and then afterwards he confuses the whole issue by denying that he alleged that the speaker had said something other than what he said. Here is what Deputy J.A. Costello said, as reported at column 1030:—
"Can anybody assume for a moment that a judge appointed, even with this ridiculous machinery of the President, will not be a politician, because that is the scheme under which the Taoiseach brought the position of President into the Constitution? He will be a politician, probably or possibly elected by the votes of the strong Party in strong Government, that the Taoiseach is so fond of. He will select his own judge. He is supposed to consult the Council of State. Supposing you had an independent Council of State—let us assume that almost impossible situation—and they tell him——"
that is, the Council of State tell the President
"‘——You must accept AB; he is a good judge, an independent judge,' he may say——"
the President may say
"‘——Thank you gentlemen. I have consulted you. That is all I have to do. I will appoint CD,' who is a tool of the Government in power, who is what the late Kevin O'Higgins would have called a legal careerist, who got his job on the bench because he was the lickspittle of a political Party."
Plain enough.
That is not what the Minister said. However——
What certain of the Fine Gael speakers want now is that we should have an appeal to all the other lickspittles of political Parties, as they would call them. The truth is that it is unnecessary and undesirable that the report of the commission, once concluded and put to the Dáil and approved or not rejected by the Dáil, should not come into operation forthwith. Then, if the people want to have a general election and want to elect new T.D.s, the constituencies will have been defined in a proper, legal manner.
There is no reason why the courts should try to go behind the certificate of the Ceann Comhairle that this matter has been properly dealt with by the Dáil and by the commission, any more than the courts should go behind the certificate of the Ceann Comhairle or the President that a Bill has been passed or deemed to have been passed by the Dáil in the ordinary way.
I want to ask one simple question. If this Bill is deemed to become law at the end of April and before the referendum takes place, is it not possible that it can be challenged as being repugnant to the Constitution, and a case taken to the Supreme Court?
You are welcome to take that action, if you wish.
I will leave that to some of the lawyers.
Pay some of your own lawyers to do it.
I should like to make this very short statement. I took down the Minister's words when he used them. He said:—
"The Leader of the Opposition denounced as a political lickspittle anyone who might be appointed as chairman of the commission."
The Minister read out the words which the Leader of the Opposition used in Dáil Éireann, which were roughly this:—
"The President may say to himself: ‘I will appoint CD.'"
These two things are not consistent. Again it is a question of the plain meaning of words. They are not consistent.
There are two questions to which I feel I have not had an answer yet. I asked Senator Lenihan to tell me what redress we had if the commission was not properly constituted. He told us that we had redress if it did not do its work properly, because one could sack the judge. Arising out of that, I asked what redress we had against the improper constitution of the commission. I have not had a reply from either Senator Lenihan or the Minister.
I have not had a reply from the Minister as to my suggestion that this clause is ultra vires the Constitution, because of Section 4 of Article 46 which says that if you are trying to amend the Constitution by a proposal or proposals, the Bill shall not contain any other proposal. This is another proposal—that the courts be deprived of some of their existing powers. I should like to hear from the Minister his view as to that contention.
One answer to what Senator Sheehy Skeffington has just asked is that he had a proposal here this afternoon and kept us for a considerable time in debating it. In my opinion, it was a distinctly different matter from that which was before the House. It was a separate proposal, that is to say, having constituencies on the basis of 25,000 to 30,000 instead of on the basis of 20,000 to 30,000. That was surely a distinct matter. He sought to incorporate it in this measure to go before the people. He succeeded in putting himself in a minority of one and it was rightly rejected.
As regards the question of the constitution of the commission, it is quite clear that the President, in discharge of his function in appointing the chairman, can be impeached in the Oireachtas. It is quite clear that the judge can be dealt with also under the section whereby any Supreme Court or High Court Judge can be dealt with by the Oireachtas for stated misbehaviour. I am certain that the judge acting as chairman of this commission will be acting in discharge of his duties and, for any misbehaviour in the discharge of his duties, he can be dealt with and discharged from office by way of petition in the Oireachtas. For that reason, I think the safeguards are already there.
The Ceann Comhairle, of course, can be removed at any time by a motion in the Dáil if the majority feel that the Ceann Comhairle has misbehaved himself in any way in the discharge of his duties. I think that is as far as one can go, having regard to the principle that this commission must be an independent body. This will be a specific sub-section of an article in the Constitution and the whole idea behind the commission is to put that commission on a high judicial plane. It will be presided over by a judge of the High Court or a judge of the Supreme Court and, in the discharge of its limited function, it will be in the same position as the Supreme Court. No Supreme Court judge can be discharged from office except by the specific constitutional provision of a motion supported by two-thirds of the Dáil. For that reason, I think Senator Sheehy Skeffington has missed the point. The idea of the sub-section is to put the commission in this independent judicial capacity, almost on a par in its limited function with the Supreme Court in its much broader function.
Surely Senator Lenihan makes confusion worse confounded by his intervention at this stage. The High Court is an independent court and there is no suggestion that, because there can be appeal from the High Court to the Supreme Court, that is in any way an impairment of the independence of the High Court. There is equally no suggestion, so far as I have heard in this debate, that this commission will misbehave and there is, therefore, need for appeal for that reason. Whatever the arguments may be for or against an appeal being available, for or against putting this proviso into the Constitution, it is quite clear that what we are discussing here is not the misbehaviour of the commission. It is a question whether the court should have power to inquire into what the commission does, independently altogether of misbehaviour. They might, in the phrase the lawyers use, misdirect themselves. But that is not misbehaviour. The power of the Oireachtas to deal with the President, and the power of the Dáil to deal with the Ceann Comhairle, are completely separate things. The issue here is whether this body should be, or should not be, subject to the courts. The fact that the body is presided over by a judge does not mean normally that it is independent of the courts; and the fact that its decisions may be questioned by the courts does not, of course, mean that it is not independent. It can discharge its functions as it seems good to itself, but the discharge of those functions may afterwards be inquired into by a judicial tribunal. That does not mean there has been misbehaviour, or any lack of independence. Really, I think Senator Sheehy Skeffington was unfortunate in asking Senator Lenihan to explain, because Senator Lenihan has only made matters worse.
The same argument applies to the Minister's point that legal proceedings are obstructive. If one takes the view that legal proceedings are obstructive, then one should not have any legal appeals at all and there should be no lawyers. If you take the point of view that because a clever lawyer can put a point of view which will bring you to the Supreme Court, and it takes that court years to determine the matter, that is obstructive, then that is an argument against courts altogether. It is an argument that someone should be able to say summarily what the position is. We are in the fortunate position, and I hope we will remain in it, that nobody can tell us summarily what the position is. We are glad of that, and we do not regard the courts as obstructive. That is a foolish idea.
It was not said either. Some legal proceedings are obstructive. Some speeches are obstructive.
Lawyers who are against the Minister are, by definition, obstructive.
I wonder am I in the fortunate or unfortunate position that I do not understand this yet?
It may not be either fortunate or unfortunate, but it is not unusual.
Senator Hayes said we were in a fortunate position. This is no ordinary legislation. The Oireachtas in the past has passed legislation which subsequently, on appeal to the courts, was held to be ultra vires the Constitution. We are not proposing here that the people should enact ordinary legislation. We are proposing an amendment of the Constitution and every clause in this is an amendment of the Constitution.
When reading this first, I was rather perplexed by the way in which it was set out because we start off "Whereas it is proposed to amend Article 16 of the Constitution" and then we say "Be it therefore enacted by the Oireachtas as follows" and we go on to say "Article 16 of the Constitution is hereby amended... as respects the Irish text by" and certain things follow. What we are doing is changing the Irish and English text of the Constitution and inserting this Schedule as a new sub-section in the Constitution. I cannot, therefore, follow Senator Sheehy Skeffington's point that this is not an amendment of the Constitution. The whole thing is an amendment of the Constitution. It does not contain any extraneous matter.
On a point of explanation, I did not say this is not an amendment of the Constitution. I said the Constitution itself in Article 46, to which I refer the Senator, specifically says there are ways in which one can amend the Constitution and there are ways in which one cannot amend the Constitution. It says that if you try to introduce another proposal in a Bill to amend the Constitution, then that is not amending the Constitution in the proper way. I think the Senator should read Article 46.
We are introducing nothing except an amendment of the Constitution. We are substituting a new sub-section in its entirety embodying everything that is in this. The whole thing is an amendment of the Constitution. That is my point. Another point is that I read in the paper the other day where an appeal was taken from the Labour Court, a court set up by ordinary legislation, to the High Court and it was rejected on the ground that it should never have come to the High Court. I do not see then why the question of appeal should come in here. I cannot follow the argument that an amendment of the Constitution is ultra vires the Constitution.
Is the Senator pressing his amendment?
Yes.
Cuireadh an cheist: "I gCodanna I agus II go bhfanfaidh mar cuid den alt na focail a tairgtear a scriosadh amach" agus faisnéiseadh go rabhthas tar éis ghlacadh leis.
Vótáil.
Would the Senators challenging a division please stand?
Senators Sheehy Skeffington, Quinlan and P. Crowley rose.
The Senators will be recorded as dissenting.
D'aontaíodh Alt 4.
Tairgim leasú 11:—
I gCuid I, Alt 5. 2º, "ar choingheall go n-aontóchaidh Seanad Éireann leis an leasú nó na leasuighthe." a chur isteach ag deireadh an fho-ailt;
agus
I gCuid II, Alt 5.2º, "provided that Seanad Éireann concurs with the amendment, or amendments." a chur isteach ag deireadh an fho-ailt.
I move amendment No. 11:—
In Part I, Section 5.2º, to add at the end of the sub-section "ar choingheall go n-aontóchaidh Seanad Éireann leis an leasú nó na leasuighthe.";
and
In Part II, Section 5.2º, to add at the end of the sub-section "provided that Seanad Éireann concurs with the amendment, or amendments.". This amendment is deemed to be a safeguard in relation to the work of this commission. It is proposed that it should require a two-thirds majority of Dáil Éireann to reject any of its recommendations. I wonder whether the Government would consider it advisable to add to that that it should also have a majority in Seanad Éireann? What has the Minister to say to that? It seems to me a reasonable suggestion. It seems to preserve the relationship between Dáil and Seanad Éireann, acting in consort. I am aware, of course, that any concurrence will be governed by the provision in the Constitution which limits the delaying action of the Seanad to 90 days. Still, I think it would be well that the link between the Seanad and the Dáil should be preserved as a safeguard in this legislation.
I should like to support this amendment. It seems to me that to leave the Seanad out of this completely is not quite fair, and is not in accordance with the spirit of the Constitution at present. Under Article 16 (2) (4º) of the present Constitution, it is provided not that Dáil Éireann shall revise but that "the Oireachtas shall revise the constituencies" and any alterations in the constituencies, and so on. Therefore, the present Constitution prescribes that such changes shall be decided by the Oireachtas. Yet this Bill asks us to forget about the Seanad, and provides that only the Dáil has the right to amend in this respect.
I think Senator Quinlan is quite right to propose the incorporation of the phrase which would deem it necessary to have the consent of the Seanad also. The Dáil is not the only House in this Parliament.
My view on this is similar to the view expressed by Senator Hayes when he was talking on the Electoral (Amendment) Bill in 1947 here in the Seanad——
The Senator has done great research.
——which, in that year, sought to adjust the constituencies in accordance with constitutional provisions. In that contribution, Senator, Hayes made the point that the Seanad, although technically it had amending powers in regard to that Bill, should not use these powers on the basis that the Bill was peculiarly one for the Dáil as it concerned the constituencies and the system of election to Dáil Éireann alone. I think that that very sensible view propounded on that occasion by Senator Hayes has been followed by the Government throughout this amending proposal here.
With regard to the commission, the six members, apart from the judge, are to be selected from Dáil Éireann on the nomination of the Taoiseach and the Ceann Comhairle. The six members are to be selected from Dáil Éireann, and rightly so. Surely the members of Dáil Éireann are best acquainted with constituencies? Surely the members of Dáil Éireann best know the political facts concerning constituencies? Surely the members of Dáil Éireann are the most realistic and practical people to deal with a matter that concerns them?
Similarly, in this sub-section we are discussing, the amendment of the report, supported by not less than two-thirds of the members, again, of Dáil Éireann, can be dealt with in the Dáil. Rightly, I think the Seanad is not included. It would be inconsistent if the Seanad were included in that sub-section, in view of the previous sub-section setting out that the six members of the commission shall be selected from Dáil Éireann alone.
It is consistent with the whole approach that this question of the commission's delimiting constituencies is particularly a matter for the Dáil itself. It is a peculiar function for the Dáil to deal with a system of election to its own House. Any insertion of Seanad Éireann at the end of that paragraph would be inconsistent with the general tenor of the constitution of the commission in that the six members from the Dáil will be impartially concerned with election to the Dáil and the question of constituencies in relation to election to that House. It is not a function of the Seanad to interfere in that regard. It is one in which it would not be suitable for the Seanad to have any place or function.
Will the findings of the commission, when accepted by Dáil Éireann, become law or will they have to be put into a Bill which must come before both Houses of the Oireachtas? Perhaps, with regard to the allusions of Senator Lenihan to the Bill of 1947, I may tell this story. I agree that it was my view that the rearranging of Dáil constituencies was a matter for the Dáil and that, if the Dáil passed it, then, while the Seanad had a constitutional right —which I did not say I wanted to abandon—it would be simply for the Seanad to agree. I told that outside this House to the then Minister for Local Government who is now the Minister for Health. He assured me he would speak for only five minutes. I felt that the matter would be finished within about 15 minutes. He came into this House and spoke for nearly an hour and attacked the Labour Party as being like the Russians. A Senator who, like himself, was given to making long speeches then spoke for another hour and we spoke the whole day on the Bill for the revision of Dáil constituencies—although the Leader of the Opposition had been of the opinion, before the matter began, that it might take 15 or, at the most, 20 minutes.
It seems to me that, if you give the Seanad power in this way by providing that Seanad Éireann concur with the amendment or amendments, it might mean that the provision in respect of the 90 days would not apply. If this amendment were inserted in this present form, you would have to have a resolution in Dáil Éireann. I am not sure that, if you inserted these words, the result would not be that if the Seanad did not concur, the Dáil could go ahead.
The real point is whether the commission's report, being accepted by the Dáil, becomes law in that way or whether it would have to be passed in legislation in the ordinary way. With the insertion of these words, the refusal of the Seanad to pass the legislation might result, I think, in its not being subject to the 90 days' provision, which would be very serious.
The section following the sub-section which Senator Quinlan proposes to amend states:—
"Immediately after the last of the next 14 days on which Dáil Éireann has sat after the commission's report is laid before it, the boundaries set out in the report, or, where the report has been amended by Dáil Éireann, in the report as so amended, shall become and be the boundaries of the constituencies, provided that any alterations in the constituencies shall not take effect during the life of Dáil Éireann then sitting."
If the amendment of the report is supported by not less than two-thirds of the members of the Dáil, present and voting, the report shall be amended accordingly and, as amended, shall become operative after 14 days.
The normal argument for bicameral institutions is that if you have a single Chamber with a simple majority, it may be tyrannical. We have the Second Chamber here in order that the work of the Dáil shall be reviewed. There was a period when there was only one Chamber—the Seanad was not in operation—and there was legislation passed to provide that more than a simple majority was necessary in certain cases, in relation to judges, and so on.
In this case a simple majority cannot reject the report of the commission; there must be a majority of two-thirds, so that in the normal way, with a Government Party comprising 50 or 55 per cent. of the Dáil, they would have to get a number of Deputies from the other side of the House to concur in rejecting the report. In view of the fact that that safeguard is in the Bill, that the report of the commission cannot be thrown out simply by the Government Party, I do not think it is necessary to bring in the Seanad.
That procedure also shortens the period between the presentation of the report by the chairman of the commision and its coming into full legal effect. The important thing is that there should be clear-cut decisions on all these matters and that they should be taken at reasonable speed. From the point of view of ensuring fair play, there is no reason why the Seanad should concur with the Dáil if the Dáil rejects the report of the commission or amends it by a two-thirds majority.
We are legislating for the future, for the commission that it is proposed to establish within the next year and also for commissions in the future. Quite rightly, we have painted from here the picture of the future if this Bill becomes law, which we hope and pray it never will. We see a Government sweeping into power with at least 100 to 120 seats out of 140, so that it is not the slightest brake on that Government to have a two-thirds majority to pass legislation. There is the other safeguard that there are three members of the commission drawn from the Opposition but, again, these three members are effectively muzzled by the provision that there cannot be a minority report, so that the whole thing adds up to a glorified control by one Party.
A Second Reading speech.
Stick to your amendment.
I may suggest that any dispute that is likely to arise in the Dáil arising out of the recommendations of the commission will be a dispute between the two sections of the commission—the Opposition members and the Government members— the Opposition members charging that the Government members have gerrymandered the constituencies to suit the Government and providing evidence to demonstrate that. In such case, the Seanad, being a body detached from the Dáil, should be the desirable institution to investigate such charge. There is no use in investigating it in the Dáil. The Government in future, if they get the single seat constituency and the non-transferable vote, will not be troubled in the slightest about a two-thirds majority. Therefore, if we are concerned with the future, if we are concerned with safeguards which are the very life-blood of a democratic system, we should be jealous as a Seanad of our powers and of the contribution we can make and of the balanced views and judgments we can bring, especially when it is a case of disagreement in the other House.
I am not pressing the amendment because it is a matter that the Governmen should see to.
Tairgeadh siar an leasú, faoi chead.
Earlier this evening Senator Ó Ciosáin claimed that there was no allegation of gerrymandering when the 1947 Electoral (Amendment) Bill was going through the Dáil. I hope he will not ask me to read them but I got the report and flagged the various allegations made by various Deputies, specifically by the late Deputy Martin O'Sullivan and Deputy Bennett of Limerick, who was quite specific. The report might nearly be worth reading where he talked about the area beyond Killmallock being lumped in with Limerick City. The suggestion that there was no allegation of gerrymandering interested me. There was a specific suggestion. There was a free vote of the House on County Wexford and the Minister himself brought in amendments to the Bill to meet Deputy Martin O'Sullivan. I am not saying that in the debate that year, 1947, there were widespread allegations of gerrymandering—there were not—but there were enough to be able to flag them through the volume. I just want to place that on record since the Senator suggested that there was none at all.
Read the report.
Cuireadh agus d'aontaíodh an cheist.
Earlier this evening Senator Ó'Quigley referred to this section and made what appeared to be a sensational discovery, that this section was a sinister device on the part of the Government to amend the Constitution by law. I am surprised that Senator O'Quigley is not here to develop that them. Senator O'Quigley has studied numerous Constitutions. We have been solemnly informed that he studied no fewer than 89 Constitutions of various countries but, if he had taken the trouble to study our own Constitution, he would have found that there are at least 23 Articles which, having laid down certain principles and so on, end by saying that they "shall be determined in accordance with law", so that this section which says that, subject to the provisions of this Article, any matter whatsoever relatting to constituency commissions or their members may be provided for by law, is in line with 23 or 24 Articles in the Constitution and is in no way unusual. If any attempt were made to introduce a Bill which was inconsistent with the sections laying down the principles then, plainly, it would be repugnant to the Constitution and could be dealt with by the Supreme Court.
Cuireadh agus d'aontaíodh an cheist.
Tairgim Leas 12:—
I gCuid I, alt 7. 1º, líne 41, "15mhadh lá d'Aibreán, 1961," a scriosadh agus "lmhadh lá d'Eanair, 1962," a chur ina ionad;
agus
I gCuid II, alt 7. 1º, líne 40, "15th day of April, 1961," a scriosadh agus "1st day of January, 1962," a chur ina ionad.
I move amendment No. 12:—
In Part I, Section 7. 1º, líne 41, to delete "15mhadh lá d'Aibreán, 1961," and substitute "lmhadh lá d'Eanair, 1962,";
and
In Part II, Section 7. 1º, line 40, to delete "15th day of April, 1961," and substitute "1st day of January, 1962,".
This amendment is intended to give Parties more time to gear themselves to the changed conditions that will develop in political life if the amendment to the Constitution is passed. This amendment seeks to change the date mentioned in the section, 15th April, 1961, to 1st January, 1962. In amendment No. 13, I propose the insertion of the words "and Seanad Éireann" so that an early election can only be held provided both Houses agree, that is, any election under the proposed system.
If you want an election, of course, the power of dissolution is there at all times, but, if a decision to dissolve is taken before the date set here, and if the Dáil and Seanad do not agree to make the Order changing the date here, then that election is to be held under the old system. In other words, the proposed amendment here gives a chance to the Parties to gear themselves to the changed position if the amendment of the Constitution is passed.
In that way, I think it is a very fair and reasonable amendment and, above all, it prevents the development of the exploitation of a snap election called, say, within a year or so at the very first moment the new constituencies are arranged. The amendment prevents that, unless the Dáil and the Seanad both agree with the change. I am not satisfied that the change should be left to the Dáil alone. I think it would be very unwise and very foolish to give away the rightful power of the Seanad.
What is the significance of the date, 15th April, 1961? Why is that particular date chosen?
The 15th April is usually the date on which there would be a new register available.
I should like to hear what the Minister has to say on both these amendments. The first change is a minor one, but the second is a major one, that the concurrence of the Dáil and Seanad should be obtained to setting the date on which an election is held under the new system, if that is introduced.
I think we have debated this long enough. The Dáil is particularly interested in this matter and, if the Dáil thinks that the date should be brought forward, we believe that the date should be brought forward. As set out in the section as it stands, the date, 15th April, 1961, is put in because it is usual for a new register to come into operation on 15th April each year. The 15th April, 1961, is two years away from this date, and we think it is long enough away to give all the political Parties, including our own, time to make preparations for holding the next general election under the straight vote system.
Is the amendment being pressed?
The Minister says it is solely a function of the Dáil, but I think that is a new development in political life. We have had two items already claimed as being solely functions of the Dáil. If this exception is made, it means that the Government can declare an election at any time under the new system, and the date here, 15th April, 1961, is not really worth the paper it is written on unless some adequate safeguards are put in to ensure that no snap election will be held under the proposed new system and that, if an election is to be held, within the next year or two, it will be held under the existing system.
There is no need for a snap election at all.
Is the Senator pressing the amendment?
No.
Tarraingeadh siar an leasú, faoi chead.
Tairgim leasú a 13:—
I gCuid I, alt 7. 1º, líne 43, "agus Seanad Éireann", a chur isteach roimh ", is iad";
agus
I gCuid II, alt 7. 1º, líne 42, "and Seanad Éireann" a chur isteach roimh", Dáil Éireann".
I move amendment No. 13:—
In Part I, Section 7. 1º, line 43, before ", is iad" to insert "agus Seanad Éireann";
and
In part II, Section 7. 1º, line 42, before ", Dáil Éireann" to insert "and Seanad Éireann".
Is the amendment being pressed?
No.
Tarraingeadh siar an leasú, faoi chead.
In the case of sub-section (2) of the section, I take it this is a transitional arrangement with regard to the person who is the Ceann Comhairle of the Dáil at a particular moment. Does the present law, under which the Ceann Comhairle does not go forward for election, apply if this Bill becomes law, that is, speaking in general terms? This provides for the specific case of the present Ceann Comhairle of the Dáil, does it not? Supposing the new system were adopted, is he not the Ceann Comhairle still?
Whoever is the Ceann Comhairle at the date of dissolution.
But later on?
After that, there would be double membership of the constituency for which the Ceann Comhairle sits.
If the Ceann Comhairle were a member for a single seat constituency, he would remain a member after dissolution of the Dáil, and another man would be elected for that constituency.
Cuireadh an cheist agus faisnéiseadh go rabhthas tar éis glacadh leí.
