Deputy Fitzpatrick maintains that the position is substantially the position that we are trying to make clear in the Bill, whereas Deputy Ryan says we must have absolute mathematical accuracy with regard to equality and that the court allows no divergence whatever. You can take your choice of what the Opposition attitude is. While Deputy Fitzpatrick maintains that the position is as we want it to be he is at the same time equally determined with the other urban orientated Deputies and Senators to ensure that the Constitution is not amended so as to make it clear that what he says is the position is in fact the position. I do not know what interpretation the Opposition place on the present legal position. I have long ago given up any attempt to try to interpret the mind of Fine Gael. They change from day to day and from year to year and they change in accordance with what they believe to be the Fianna Fáil attitude and also in accordance with the oscillations in the control of the Fine Gael Party between the Law Library and the UCD campus.
In government, with regard to this question of the delineation of constituencies, you have a practical job to do and in order to do that, you have to try to have some reasonable idea of what is permissible and what is not. In order to do that in 1961, the Minister for Local Government tried to assess from the mass of verbiage which constituted the decision of the High Court just exactly what the position is. I admit that nowhere in the judgment does it state clearly and definitively that a divergence of five per cent is permissible. That, apparently, would not be the legal way to do things. That would not provide scope for people like Deputy Ryan, Senator O'Quigley and ex-Deputy McGilligan to enrich themselves by deriving part of their incomes from constitutional wrangling.
I agree that it is not all that clear, but on page 143 of Irish Reports, Budd, J. 1961, O'Donovan v. The Attorney General, it is stated:
Another suggestion was to divide Galway into two constituencies, West Galway with three seats, and East Galway with five seats. It was submitted that this could be done fairly simply by transferring the nine electoral divisions of Carmore, Clare-galway, Annaghdown, Ballinduff, Donaghpatrick, Headford, Kilcoona, Killeany and Kilursa, with a joint population of 5,166 to West Galway and consolidating the remainder of the other two existing constituencies. For clarity I set out the result:— Suggested constituency, West Galway, 3 seats, population 60,269, ratio of members to population 1 to 20,089; East Galway 5 seats, population 95,284, ratio of members to population 1 to 19,057.
That represents 1,070 below the national average at that time. Budd, J. went on to say:
Both suggestions would constitute constituencies with a ratio of members to population reasonably close to the national average. These illustrations show what is practicable in these instances and may be compared with what in fact has been done.
Now, in trying to arrive at an idea as to what scope was available to the Oireachtas in revising constituencies, I think it was only natural to assume that a divergence of 1,000 from the national average, or five per cent, was, in the view of the court, reasonably close to the national average and the revision of constituencies in 1961 was, in fact, based on that interpretation of the decision of Budd, J. It was submitted to the Supreme Court; the Supreme Court ruled on it and found it to be constitutional. At another stage in the report, at page 154, Budd, J. gave the same indication as to the divergence which he considered was permissible when he said:
Moreover, in so far as the City and County of Dublin is concerned we know for a positive fact that the figures can be worked out so that the difference in ratio does not exceed 1,000.
Any normal person endeavouring to interpret the legal position as established in the High Court as a result of the Fine Gael manoeuvres in that court, would, I think, assume that the court regarded a divergence of 1,000 from the national average as a reasonable divergence. That was permissible and the 1961 revision was based on that. It was found to be constitutional by the Supreme Court, so that, in looking at the present position and trying to see what would have to happen if the revision required were to be carried out in accordance with the present constitutional requirements, any normal person would assume that a divergence of five per cent would be permissible.
That is what I assumed. Deputy Ryan says I am wrong: that there is no divergence permitted. Of course, if he is right, the situation would be even worse than the situation that disclosed itself to me as a result of my examination. On the other hand, Deputy Fitzpatrick also says I am wrong. He says there is no specified limit to the divergence permissible and he relies on the Supreme Court decision on the 1961 scheme of constituencies. This is, of course, the point: the Supreme Court were merely giving a decision on the 1961 scheme of constituencies. They gave no indication whatever of reversing Mr. Justice Budd's decision and, therefore, so far as there is any law on the matter, it is clearly Mr. Justice Budd's decision.
It is true that the Supreme Court did say that it was, in the first instance, a matter for the Oireachtas. But it went on to say that a scheme could quite rightly be referred to the court and ruled on and it could only be assumed that they agreed with Mr. Justice Budd's ruling because they gave no indication whatsoever of disagreeing with its general tenor. What does this amount to? The Oireachtas could do what they liked and then refer the matter to the courts and the courts would tell the Oireachtas whether or not they may do this. That means, of course, that the Oireachtas can do what they like and I suggest that the only reasonable assumption one can make is that a maximum divergence of five per cent can be made on the national average in revising constituencies.
Members of the judiciary and members of the legal profession, particularly people like Deputy Ryan and Senator O'Quigley, and other prominent members of Fine Gael in the Dáil and Seanad, who get part of their income from constitutional wrangling, may see nothing objectionable in this process, that is, that the Minister for Local Government should, first of all, make a revision of constituencies, that he should then bring it laboriously through the two Houses of the Oireachtas, and then refer it to the Supreme Court. If the Supreme Court happen to find it to their liking, well and good. If they do not find it to their liking, then the Minister will have to go through the whole process all over again, until eventually, as a result of trial and error an acceptable scheme is arrived at. But the Oireachtas have a practical job of work to do and surely it is reasonable to expect that it should be known in advance just what can be done and what cannot be done?
We have tried to operate on the basis of Mr. Justice Budd's decision and we believe that decision indicates as clearly as it is possible to indicate that a divergence of five per cent would be constitutionally acceptable. Deputy Ryan and Senator O'Quigley say that that is wrong, that no divergence is permissible. Deputy Fitzpatrick says there is no definite limit laid down to the permissible divergence below 17 per cent. We believe there is a permitted divergence but that it is so small as to be of no use from the point of view of avoiding breaching county boundaries, and so on. If Deputy Ryan's viewpoint is right—it is, apparently, also the viewpoint of Senator FitzGerald—then the proposal in the Third Amendment Bill is designed to introduced a minimal degree of flexibility where there is at present an unreasonable rigidity. If Deputy Fitzpatrick is right, we are merely clearifying the position and making it intelligible to the layman by putting an upper limit where, according to Deputy Fitzpatrick, there is none at present. If Deputy John A. Costello is right, we are rectifying a constitutional infirmity in the only way in which it is possible to rectify it. All these different viewpoints in the Opposition are, of course, crystallised into an attitude of opposition to the Bill because it has been put forward by Fianna Fáil, even though it can be clearly shown to have been in response to the unanimous demand by the Opposition Parties.
One thing that is clear is that anyone setting out to revise constituencies has to make some assumption about the degree of exactness in relation to parity of population per seat, which can be regarded as being as near as practicable, and the only assumption I can make is that that is a maximum of five per cent. On the basis of 144 Deputies and the population figure arrived at in the 1966 census, the national average of population per Deputy is 20,028. In examining what would have to be done to comply with the demand to revise constituencies, I have assumed that, in present circumstances, a maximum population of 21,028 per Deputy would be permitted and that a minimum population of 19,028 would be permitted. In other words, the maximum population in a three-seat constituency would be 63,084, in a four-seat constituency, 84,112 and, in a five-seat constituency, 105,140.
I have assumed that if a constituency has more than these numbers but less than would be sufficient to justify an extra representative, it must either unload some of the surplus population and retain its present representation or it must receive an addition of population from an adjoining area and gain an extra representative or representatives. I have also assumed that the minimum population allowable in a three-seat constituency is 57,084, in a four-seat constituency, 76,112 and in a five-seat constituency, 95,140. So that a constituency with less than the minimum population appropriate to its present number of seats must receive an addition to retain its representation or unload some of its population so as to reduce the numbers at least to the maximum for the next lower number of seats provided, of course, that that would not be lower than three.
The 1959 revision of constituencies was based on what Deputy Fitzpatrick says is the law according to the Supreme Court. That revision of constituencies was declared to be unconstitutional by the High Court and the Supreme Court did not contradict it.
The 1961 revision of constituencies was based on the assumption I have mentioned and that assumption was based on Mr. Justice Budd's decision. It is clear, as I said, that the only possible assumption is that a maximum divergence of five per cent from the national average is allowed and a revision is now required because 24 out of the 38 constituencies are no longer in compliance with the Constitution and it must be clear to most people that even if there are only 24 out of the 38 constituencies out of line, the solution of the problem in these 24 places will inevitably involve other constituencies, that when you have to deal with a situation in one constituency by transferring population to it or from it, it is inevitable or almost inevitable, at any rate, that a chain reaction will be set up. I will show, for instances, that what has to happen in the Cavan-Monaghan area does affect other constituencies and other countries right down to the County Kildare, if not, indeed, right down to Wexford.
In the same way what has to happen —and happen completely unjustifiably and unnecessarily—in Donegal and Clare, will affect each county in the Province of Connacht and will, in fact, affect one county to the extent of removing it completely as a separate recognisable entity from the whole scheme of constituencies.
In Dublin, you would only have to start from scratch. It would not be feasible to deal with the Dublin situation on the basis of chopping and changing, adding and subtracting, in existing constituencies.
Even apart from the breaching of county boundaries and the injustice and disfranchisement this inflicts on the people concerned, frequent changing of the constituencies as is now required after each census is unfair to the people, to their public representatives and to Party organisations which, being composed of voluntary workers, are deserving also of some consideration.
It is interesting to see what the approach of Opposition Deputies to what is now required was. I just think it appropriate to give some indication of the irresponsible way in which Opposition Deputies approach this. At Volume 233, column 1722 of the Official Report for April 3rd, 1968, Deputy Harte said, referring to his own county of Donegal:
We have at the present time two constituencies, each sending three Deputies to the House, and if commonsense is to be observed and if the Constitution is to be honoured, it should be one constituency sending back five Deputies. This will be conceded by anybody with limited intelligence, who devotes any time to the political scene in Donegal.
Of course, Deputy Harte made a very incomplete examination of the situation in Donegal or he would not have said that because the situation is a lot more involved than that, as I will show, but I think that Deputy Harte did see that to apply the solution with regard to Donegal that he recommended would involve, let me say, the expatriation of a considerable number of Deputy O'Donnell's constituents into the Province of Connacht and Deputy Harte, probably realising that Deputy O'Donnell was one of the Fine Gael rural Deputies who were embarking on the trek to Dublin city saw then that that would be likely to leave the whole of Donegal available to him for the accumulation of one quota of votes. That was obviously his approach.
