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Seanad Éireann debate -
Thursday, 12 Feb 2009

Vol. 193 No. 14

Electoral (Amendment) Bill 2008: Committee Stage.

Sections 1 to 3, inclusive, agreed to.
SECTION 4.
Question proposed: "That section 4 stand part of the Bill."

I wish to comment on the way in which the electoral commission prepared its report for the Minister.

Is the Senator speaking on section 4?

Section 4 is probably the most relevant one because it also deals with electoral divisions. On Second Stage, I raised with the Minister the question of how the commission had gone about its business. Its terms of reference stated that it should examine county and geographical boundaries, and all other considerations. It had the right to work with between 166 and 168 Members of the Dáil. On the last occasion we debated this legislation, the Minister confirmed the commission took a decision, before doing anything else, to confirm that Dáil membership would remain at 166. If that is the case, the commission broke with its terms of reference as given to it by the Department and by the previous Minister, Deputy Dick Roche. Can the Minister confirm that he sought the advice of the Attorney General on whether proper procedures had been followed? Having taken separate legal advice, my understanding is that if the entire process did not include the consideration of up to 168 Members of the Dáil, the commission did not act within the terms of reference given to it by the previous Minister. Can the Minister confirm whether this is the position?

I also note from the Minister's statement on Second Stage that the first decision taken by the electoral commission was that there would only be 166 Members of the Dáil. I am querying that because we have no way of knowing if that was the case. Under the Freedom of Information Act, I sought papers on the discussions, but that request was refused on the basis the commission became extinct having prepared its report. In any fair-minded system, we should be entitled to use freedom of information legislation to obtain such data. For example, information on Members' or Ministers' expenses would be readily available under freedom of information legislation.

I am contesting this because the Minister already made it clear to the House and confirmed it. One of the main features of the electoral commission's 2007 report on Dáil constituencies is that there be no change in the existing level of Dáil membership - that is to say 166. If that decision was taken first, prior to the others being assessed, as stated by the Minister, the commission's report is inaccurate. If it was not so, we need to see the relevant papers to justify that this was the position and that every consideration was given. The Minister has confirmed this, but I am not blaming him because he is acting on the information he was given. If that is the case, this section - as the relevant section on constituency boundaries for Dáil elections - is irrelevant. It will have to be revisited by a new commission. Perhaps the Minister might be able to confirm that point. He may not be able to confirm it because if the documentation that was used for the process has been destroyed or is unavailable under an freedom of information request, I presume it is not available to the Minister.

I welcome the Minister and welcome the contribution made by Senator Ellis. Our argument is not about whether 164, 165 or 166 Members of the Dáil is the appropriate number, but about the procedure followed to arrive at the number. It is disappointing that despite freedom of information and various mechanisms which allow Members of the Oireachtas and the public inquire into the thinking and political decisions of Departments on major public policy issues, we cannot get similar information with regard to the work that led to this legislation.

I trust that during the course of the morning we will get into greater detail on our views on the make up of certain constituencies. Senator Ellis, through his work and efforts to obtain documentation, has highlighted the need for greater clarity on the thinking and policy decisions which have brought us to this legislation. It is important now that we ascertain from the Minister as far as possible the starting point for the Department. Was it the number of Deputies to be returned? Was it the effort to bring a proper regional or geographical base to constituencies? Was it to maintain particular boundaries, county, provincial or otherwise? We would like to know what starting point of political thinking led to this legislation. Was it a set number of Dáil seats or was that the result of the procedure?

I am interested in hearing an explanation as to why the documentation sought by Senator Ellis, and perhaps others, was not available or is not available. Why has it disappeared? I thought the era of shredding documentation was gone. Why are we unable to obtain greater clarity as to the decision making process which has resulted in this set of proposals?

I support the requests of my colleagues for greater clarity as to the reason for this decision. This would benefit everybody looking to participate in politics and to understand how decisions of such importance are made. At this time, it is inconceivable that we would recommend an increase in the number of Deputies or Senators. Given the challenges and difficulties the country faces currently, the challenge is how to make what we have currently work better. While there is a need to understand how these decisions are made, I am glad I have not proposed an amendment seeking an increase in the number of Dáil Deputies.

The discussion has been interesting, but it does not relate to any particular amendment. I appreciate the contributions that have been made and the concerns expressed. I am aware Senator Ellis is concerned with regard to his constituency and that is understandable. Other constituencies are equally affected by the deliberations of this particular commission. Deputies and Senators in the Green Party have also been affected by the decisions made by the commission.

I will start by correcting some misconceptions. I never stated the decision on the number of Deputies was the first decision. Various decisions were made, but I was not privy to them. I am in the same position as any Deputy or Senator in these Houses. If I could influence the way the commission thinks, that would be marvellous. It would give me as an individual a huge amount of power. In the past, we have seen the difficulties where Ministers could intervene in some way. Unfortunately, the consequences of such interventions were negative. It is for that reason we have an independent commission to adjudicate on these sensitive issues.

The commission could of course have decided to move to a higher number of Deputies, but it did not. It made its decisions and there was widespread disquiet on a number of the issues from people in all parties, including Ministers. Some Ministers have spoken to me about the issues, but I do not have any information about the process or substance of the deliberations.

Senator Bradford asked what was the starting point for the deliberations. The starting point was the terms of reference and these were made available to the public. I have experience with regard to terms of reference. For example, the commission working on the terms for the local elections was asked to ensure villages remained intact. However, I know, because it affects my area, that a line was drawn through villages. This had negative consequences for me. People asked, as I am the Minister, if I could reverse those decisions, but I would not do that. I cannot interfere. Every commission report has been accepted by previous Ministers and it would set a very poor precedent if I was to tell the commission to go back to the drawing board because I did not like the result.

I know that is not the sort of answer Senator Ellis wants to hear, but I appreciate his concerns. I remind him that I have started the process of setting up an electoral commission and we have published a very interesting document which I urge all Members to read. One of the ideas in that document is that we set boundaries to which no changes will be made. What will be changed instead will be the number of Deputies representing the area. This seems to me an eminently sensible way to proceed. I hope Members will have an input into that and support this recommendation.

Is that recommendation on the boundaries available to the public and does it protect county boundaries?

I appreciate the Minister's problem. I suppose not many of us appreciate that some of our colleagues have had their areas cut in two. We all accept this happens. My gripe with the commission concerns its report. The commission was given terms of reference that stated that county boundaries should, where possible, be sacrosanct. However, it broke the county boundaries in many places and made many unwarranted changes to constituencies throughout the country.

For example, my county was divided in two and has been further divided recently. This ensures that no party can elect a candidate in Leitrim because some 15,000 of the population of Leitrim are lumped in with Roscommon and 15,000 in with Sligo. The commission could have made far simpler changes. The figures would fall exactly in place if Leitrim and Cavan were combined as a four-seater constituency. Perhaps the Minister would agree with me on another thing that could have been done, but the terms of reference did not allow it. The figures for Sligo, Leitrim and Roscommon fall exactly on the button for a six-seater constituency. We probably should have put that suggestion to the Minister earlier before the Bill came to the House, but if it was done it would mean changing the terms of reference.

The big gripe for everybody is the breaking up of counties, for example Senator Cassidy's county. North Westmeath has been put into Meath West. A portion of east Meath has been put into the constituency of Louth. To me, it is totally ridiculous to have parts of three different counties in one constituency and shows the commission did not live within its terms of reference. West Limerick has been put into the constituency of Kerry North despite the fact that County Kerry on its own justified being a five-seat constituency.

I do not know what way to describe the commission. It is a good job we have privilege or we could be taken to task. To put it mildly, the commission was negligent in doing this. It took 5,000 people, not 5,000 votes, in south Offaly and shoved them into Tipperary North. It broke its terms of reference across the board. Yet when we seek to know why it did this, we are not able to get the information.

My honest opinion is that if the Bill is challenged, the commission will have to put up or shut up. It will have to show the reasoning behind what it did or it will have to be referred back to the Minister to deal with it again which could involve a new commission. The changes in population in certain areas since the previous general election or census already warrant change. We have seen population decline and people emigrating. We see all sorts of problems.

I want to get to the root of how the boundary commission came up with the decisions it made throughout the country and not alone in the Leitrim scenario. Of the submissions to the boundary commission, 74% came from County Leitrim. They came from across the political spectrum and not from one side or the other. In doing this, the boundary commission has left every one of us involved in this in limbo.

I can understand Senator Donohoe stating that increases might not be what would be accepted. This is grand if one lives in an urban constituency. However, let us take some of the sprawling constituencies in the west. As time progresses, the west and rural Ireland will continue to lose seats to the detriment of the people represented. It is easy for someone in Dublin who is not more that ten or 15 minutes from one end of his or her constituency. One would be better off going from Dublin to Cork than going from Blacksod to Cong in Mayo. The areas and distances involved in some constituencies are frightening.

I welcome the Minister's statement that he will change the situation with regard to terms of reference and that rather than changing areas that the number of seats might be changed.

This is a recommendation.

I accept that. However, the first thing that will happen is that the Minister will run into the Murphy judgment which states that the tolerance should be no more than 2.5%. This is part of the problem. Until we decide that we will be flexible with regard to the number of Members of the Lower House, we will have problems. Rural areas will see themselves as losing representation and the one thing people like to have is representation in the Dáil. My county has no chance under this. No party can elect a candidate because it does not have the physical numbers.

If we allow this to continue, a case can be made that people are being disenfranchised because they are. While they have the right to vote for somebody they do not have the right to vote for somebody from within their own area. Everything in this country is based on local government areas. Health boards were based on county council areas apart from the North Western Health Board which serviced part of west Cavan despite the fact that it was in the Eastern Health Board area. This was because hospital facilities were closer in Manorhamilton which was only five or six miles away than in Cavan town which was 40 miles away. These were minor changes.

The commission broke every term of reference it was given. I accept that from the Minister's point of view there is nothing he can do. All he could do, and I do not think anyone could expect him to do so, was to reject it. Perhaps when commission reports are prepared in future there is a need for the Houses to debate them prior to their being finalised and that tweaking would be allowed by both Houses. I know the Minister is considering this.

I have no doubt that the Opposition parties are equally as concerned about areas divided and sub-divided without any reason. We are all trying to establish the details of this commission report but we are not getting them. I tried under freedom of information and went up the line to the Department of the Environment, Heritage and Local Government and the Ombudsman and the answer was "No". Because the commission report is handed in, all detail with regard to its work and preparation is supposed to be unavailable. It is totally wrong and unconstitutional that somebody can prepare a report and effectively disenfranchise people without giving a reason for so doing. This is where we are coming from. We are not coming from any other angle.

I could live with a Dáil of 146 Members if every county had the opportunity to elect somebody. I come from the county with the smallest population, which had this situation prior to 1981 and campaigns were fought for 20 years to change it. Until then it was a political decision and the Ministers of the day decided the boundaries. I look back and consider the representation in the early days of the State when, under the original Constitution, every 16,000 people had a representative in the Dáil. Some constituencies were made up of 12,000 or 14,000 people because of geographical or other problems.

I wonder how we will address this problem and not alone now, because I believe the only way to address it now may be through the legal route and I know the Minister will not make any comment on this and I do not want him to do so. Was the Attorney General's opinion sought on this? I sought legal opinion and was told that the documentation should have been made available and that if a case proceeded to court, the Minister and Secretary General who sat on the commission would be called as witnesses and would have to state their position.

There is an electoral Act which states that once it goes down, that is the end of it, but as far as the people I represented for 20 or more years are concerned, they want to see how they will have the opportunity to elect a Member of the Dáil again. Leitrim almost always had one representative from Fianna Fáil and one from Fine Gael in the old four-seater Sligo-Leitrim constituency. We might have been the smaller part of it but we had sufficient votes and they were managed reasonably well so that the people of Leitrim could elect two Members. On most occasions we elected two.

Now, we are heading into a situation where people will not be able to elect a Deputy from within their own county. The next census is due in 2011. Once the preliminary figures are available for this it will have to be reassessed and only a short period is available to make the report. However, it will be done on the preliminary figures. Everyone would be happy if this were the case and the Dáil were to run full term to 2012 because another revision would be done then. At present, people face the prospect of not being able to elect a Deputy for Leitrim. The members of the commission who made this decision should be made accountable, either to the Minister or the State at some level. We cannot allow circumstances to continue in which people make decisions without revealing the grounds on which they make them.

I could understand the decisions of the commission if there were only one place in which it broke county boundaries but its terms of reference state specifically that county and natural boundaries are to be adhered to, where possible. It is not as if this were impossible for the commission because it could have adhered to them. All the tweaking and turning it did in respect of counties Meath, Louth, Westmeath and Leitrim could easily have been dealt with by breaking county boundaries only once or twice. A portion of Louth could have been included with Monaghan, and Leitrim and Cavan could have been put together. Roscommon and Sligo could have been put together, creating a four-seater constituency without any problem. The commission had several options but chose to divide what it regarded as the weakest county, despite the fact that the chairman made it quite clear that he wanted to maintain Leitrim as an entity. We are not supposed to know that but, as with everything else, leaks emerge.

If the commission did not consider every option available, including increasing the number of Deputies from 166 to 168 or reducing the number to 164 – the figure can vary between 164 and 168 – it should have done so. It had the opportunity to operate within its terms of reference, yet it decided not to do so and it has disenfranchised the people of County Leitrim. That is putting it mildly. Whatever is necessary to get to the bottom of the decision must be done.

I accept fully that the Minister is not to blame. He received the report just like the rest of us. Had he interfered with the commission, there would have been continuous uproar. I know he is not happy with the report. His colleague, the Minister of State at the Department of Agriculture, Fisheries and Food, Deputy Sargent, has had his area cut in two, and Deputy Cuffe will be affected by the reduction in the number of seats in Dún Laoghaire-Rathdown from five to four. We know of representatives affected throughout the country. Every part will be affected to some extent.

I cannot understand why the commission did not decide to operate within its terms of reference. It made its decision on Leitrim on the basis that it is a small county with only 30,000 inhabitants. In County Meath, Kells has been shoved to Meath East. To make up for doing so, the commission included a bit of Meath East with Louth. I do not know who the mathematicians were but they basically took a slide rule and made decisions on the basis that there should be no more than a certain population per Member.

Senator Hannigan probably welcomes the fact that he has been shoved into Louth.

I have lost 2,000 votes.

That is part of what I am getting round to. If one sets off on a political career with a base, one does not like to see it cut in pieces at the first available opportunity. While I know we will never get to the bottom of the decisions made, I believe they were made deliberately to get at certain individuals within the Dáil. I am not saying I was one of those because I was not a Member when the report was published, but I can see the claw marks of certain people and that is the sad aspect of the matter.

The Judiciary alone should be preparing constituency reports in that it is transparent in what it does. The clerks of the Dáil and Seanad are members of the existing commission, as is the Ombudsman. How could the Ombudsman decide whether I was entitled to obtain the commission's documentation? There was a total conflict of interest and this is part of what is wrong with the system and what must be dealt with. If we are to receive respect from the public in regard to what is happening, we must deal with the matter and become transparent.

Credit is due in that freedom of information applications are normally dealt with favourably, unless a matter is regarded as very sensitive by various Departments. That the most important decisions taken with regard to people's lives and representation are not available through freedom of information requests is unacceptable. Perhaps the Minister will tell us what we can do to redress the matter. Perhaps he will make an order, in the context of a new electoral amendment Bill, stipulating that all documentation will have to be made available. One must remember the submissions are available, as are the names of those who made them, yet the commission's recommendations are not. Perhaps the Minister will clarify this for me.

At the risk of becoming repetitive, I concur with Senator Ellis. I appreciate that the Minister had little discretion because there is a tradition that constituency commission reports are always accepted in their entirety. This poses the question as to why the input of politicians might be regarded as improper, unwise or even illegal. We have reached a stage where we have farmed out responsibility for almost every difficult decision to outside agencies and consultants. That may have been appropriate in the late 1970s. It was in 1977 or 1978 that the idea of an independent commission was introduced. It may have been appropriate then because a number of Governments had basically attempted, generally to their own disadvantage——

——to arrange and rearrange constituencies. What was right in 1977 may not be right today.

The Oireachtas Committee on the Environment, Heritage and Local Government would surely be an ideal vehicle to discuss these issues. Issues could be debated and suggestions could be made in both Houses, yet an independent commission is given full power. The politicians' input is basically zero and our attempt to redress any difficulties caused is in vain.

I support what has been said about the changes. The terms of reference concerning county and provincial boundaries and contiguous areas have been breached left, right and centre. Nobody, no matter how hard he or she tried, could justify the decision on Kerry and Limerick. There is absolutely no justification for including part of what was Limerick West with Kerry North. Nobody could justify what was done in respect of Laois-Offaly and Tipperary North. One could perhaps make a mathematical argument for it but one must bear in mind that certain alignments and arrangements date back almost to the foundation of the State. Those who may not be particularly interested in party politics or any sort of politics knew what constituency they were in, be it Carlow-Kilkenny or Laois-Offaly.

We have now decided to create Kerry North-West Limerick and call the remaining portion of County Limerick "Limerick" while taking a seat from the constituency to be called Limerick City. In addition, there are to be new configurations called Sligo-North Leitrim and Roscommon-South Leitrim. Difficulties arise in respect of Louth and Meath. Perhaps the commission fulfilled the legal requirement according to its terms of reference but it breached the spirit of them. The changes made in Cork will affect me. Part of the traditional constituency of Cork East has been removed and a large proportion of the population has been transferred to a constituency that is based on the city of Cork located 25 miles away. It is absolutely daft that people in the city of Cork are now in the same constituency as people almost on the border of County Kerry. There is no geographical, socio-economic or political sense to it. I accept there will be winners and losers and we cannot do anything about that, but if the constituencies were being drawn up from a common sense perspective then at least seven or eight of the new arrangements would be discarded.

It would be both interesting and important to hear about the thinking that led to the decision-making process. We can obtain the documentation on the thinking that leads to major Government decisions at budget time. In a few months or a few years we can read the documentation leading to the recent Government decisions on banking. For better or worse it is appropriate that we would be in a position to obtain and reflect on all of that documentation, yet we are not told about the thinking behind the creation of some of the new constituencies, the dissection of other constituencies and the political decimation of County Leitrim. That is disappointing.

If democracy is sacrosanct we need to have constituencies that are fair and balanced and give every area of the country an opportunity to be represented. Perhaps we are straying slightly beyond the section but when the Minister referred to geographical and population constraints I was reminded of a point of political argument that is made regularly in the House by a person who is not a member of any political party, namely, Senator O'Toole. He may have spoken on Second Stage. On many occasions he has reflected on the fact that the western seaboard and the most rural constituencies are losing representation under the current rules and regulations. He has frequently and effectively made the point made by Senator Ellis that rural representation may have to be bigger in terms of numbers per head of population than urban representation to ensure geographical balance and to give due recognition to the fact that rural representatives have to travel long distances. We should not ignore those considerations in any future deliberations.

I speak with a sense of a slight personal disappointment about what is happening in regard to County Cork, but I have no personal reason for my disappointment with the other constituencies, which concern me purely from the perspective of their construction. There is no justification for changes made in Kerry, Limerick, Offaly, north Tipperary, parts of Connacht, Louth and Meath.

I look forward to clarification from the Minister on when the next opportunity for constituency boundary revision will come. Reference was made to the notion that provisional census figures will be available, but does that mean they will be used? Will there be an option to set up a new commission once provisional census figures are available or is the Minister mandated to do so? I hope we will have a commission that will work in a more transparent fashion and that will take on board advice from the various Oireachtas committees and the Houses because the current system may well have outlived its usefulness. It probably sounded like a great idea in the autumn of 1978, 12 months after another constituency gerrymander went wrong, but what was right in 1978 may no longer be useful in 2009. I hope the Minister is willing to bring about changes that are more appropriate to today's needs.

Senator Glynn is offering but I draw his attention to the fact that the debate will conclude at 12.30 p.m. and he may wish the Minister to conclude, following which he can comment or vice versa.

I will be brief. When politicians had the responsibility of overseeing constituency boundary changes, if the result did not find favour it was called gerrymandering. Do we call this "commiemandering"? I do not think any politician in the history of the State who was responsible for the redrawing of constituencies would have done a worse job than has been done. Whatever modus operandi was used to come to the conclusions that were arrived at, common sense did not play a part. It is the most ludicrous result I have ever seen. I am not being patronising because Senator Ellis is sitting in front of me, but to dissect Leitrim, the smallest and most disadvantaged county, in the manner that has been done, with the effect of denuding that county of any representation in Dáil Éireann is nothing short of disgraceful. The people who produced the report that brought about that result should hang their heads in shame. If politicians had brought forward that result their heads would be called for on a plate many times.

As far as I am concerned anything I could say from here on has been said and would be deemed to be repetitious. When one devolves ultimate authority to an entity to produce a report, this is what one gets. There is no redress. The commission got the autonomy to do what it did and boy oh boy did it make a hames of it. If one employed a team of planning consultants to make a hash of it, I doubt it would have done as good a job. As is said in another forum, with that I rest my case.

We have spent quite a bit of time on this section but we are not discussing an amendment.

On a point of information, people can vote on a section also.

It is an interesting debate. Senator Hannigan had tabled an amendment but he appears to have left the Chamber in a bit of——

He can take up that amendment on the next day we resume discussion of the Bill.

One point needs to be made in response to a number of issues that have been mentioned, namely, that existing legislation states that in regard to general elections one cannot go above five seats. That is the sort of flexibility the commission would require, but there are genuine political difficulties in that regard because for obvious reasons the two biggest parties, namely, Fianna Fáil and Fine Gael, are not too keen on six-seat constituencies. In the same way, the Green Party is keen on six seaters and above because it gives greater proportionality and it gives smaller parties a greater opportunity. Be that as it may, this is where we are at and the legislation states clearly that we cannot go above that.

We need to put on our thinking caps in regard to the electoral commission and ask whether we want representation, for example in Leitrim, or to maintain county boundaries, or whether we should be looking at a system that allows that flexibility and to go above five seats. It is my view that we should. Then the representation will be achieved. The problem is one may not achieve the representation one particularly likes. That is the reality.

One cannot win them all.

Yes, but proportional representation is an excellent system. The concept behind it is that the people are proportionately represented by political parties of every hue. I ask Senators to read the report on the electoral commission because the ideas it contains offer a solution to the issues raised by Senator Ellis.

By order of the House, we must conclude the debate and move on to the next business. Is it agreed to adjourn the debate? Agreed.

Progress reported; Committee to sit again.
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