Select Committee on Finance and General Affairs debate -
Thursday, 13 Mar 1997

SECTION 4.

Mr. Dempsey

I move amendment No. 23:

In page 8, subsection (1), lines 16 and 17, to delete "be established by the Minister, by order," and substitute "stand established".

The purpose of this amendment is to provide for the automatic establishment of the boundary commission to ensure that it is not dependent on ministerial order as at present. We are placing the boundary commission on a statutory footing in order to take this aspect of electoral reform out of the hands of political parties and to avoid some of the excesses that happened in the past, irrespective of what party was in Government. The boundary commission should be established, self-starting and independent of all political influence. At present, the Minister of the day is obliged to make the decision to establish the commission and, if it suited a particular Minister, he or she could——

Mr. Howlin

They have no discretion. This is merely a technical structure. We are really concerned about who triggers the mechanism because someone must be responsible for taking the required action. The Bill states that the Minister should trigger the mechanism when the census report is published. The words "might" or "can" are not used because the Minister "will" be obliged to do so. An officer such as the President of the High Court or the Chief Justice will have responsibility for nominating the chairman. If that responsibility is not given to someone, the commission will not exist. In essence, the Chief Justice must nominate someone when the report is published. The provision requires that the Minister will trigger the mechanism when the census figures are reported.

Mr. Dempsey

The amendment goes even further because one is not obliged to await a census report. The commission will stand established and go into immediate action when the figures are published. It is a misnomer to discuss a boundary commission because it is really a coming together of four to five people.

Mr. Howlin

Once every four to five years.

Mr. Dempsey

Yes. To remove the convening of the boundary commission from the power of any politician, it should be established that it can be activated by its members when the need arises. That is the proposal contained in the amendment. If the commission were to be established following the enactment of the legislation, a Minister would be obliged to sign a once-off order to that effect.

Mr. Howlin

That would be the end of it.

Mr. Dempsey

It would be the end of it if the amendment was accepted.

Mr. Howlin

We have travelled so far down the road of political correctness that a politician cannot be associated with anything.

Mr. Dempsey

My party did not start that process.

Mr. Howlin

The provision merely stipulates that the Minister shall have responsibility for establishing the commission when the census report is published. It is a neat and effective way to do so.

Mr. Dempsey

Mine is even neater.

Mr. Howlin

It is not. Someone could have died in the interim and it might not suit the Chief Justice to appoint a particular judge at a particular time because he or she may be involved in a court case or a tribunal. The section states that the Minister "shall", when the census report is published, trigger the mechanism. The appropriate people will then be appointed and the necessary work carried out. That is the neatest way to achieve what is desired and I ask the Deputy not to labour the point.

Mr. Dempsey

I do not believe it is the neatest way.

Chairman

I suffered five major boundary changes during my political career and I can inform the Minister that it is no fun.

Mr. Dempsey

I tabled some amendments to cater for the Chairman's situation.

Chairman

There is an element of unfairness about the process.

Mr. Howlin

The Chairman should move to a constituency such as mine which has a long coastline.

Chairman

I believe the Minister's constituency has remained intact since the foundation of the State.

Mr. Dempsey

Since 1798.

Chairman

I understand his cavalier attitude.

Mr. Howlin

My constituency remains untouched by the north Cork militia.

Chairman

The Constitution states that a review should take place not less frequently than every 12 years. It was once the case that such reviews were infrequent but one will now take place following each census. That will have particular consequences in Dublin.

Mr. Howlin

The problem is that there must be a balance between representatives. Due to changes in population, particularly in Dublin, the ratio of Members per head of population is distorted. That must be corrected. There is a legal and constitutional imperative upon us to do so.

Chairman

It is very hard to credit that such frequent changes are imperative because they have very disruptive effects. I have represented half the population of Dublin at this stage because of changes to electoral boundaries. I have represented people from the border with County Meath to Dublin port, the border with County Kildare to Mount Jerome cemetery and Glasnevin cemetery. It is no fun having to uproot oneself from an area in which one has worked hard and begin all over again.

Was the Constitution intended to be interpreted in such a strict way? It is obvious that there must be proportionality but there must also be flexibility with regard to electoral boundaries. Following the last census, the changes to the population in my constituency were quite minor but the changes in the boundaries were significant.

Mr. Howlin

The Chairman is not standing in the next election. However, I must inform him that another census is due for publication.

Chairman

The preliminary report has already been issued.

Mr. Howlin

As soon as the final report is published, the process will have to begin again.

Chairman

There will be a further review.

Mr. Howlin

There is High Court case law which makes that requirement and there is nothing we can do about it.

Chairman

Is it possible that two reviews could take place within the lifetime of one Parliament?

Mr. Howlin

Yes.

Chairman

If the current Parliament remained in place until the last possible date, a review could take place before the end of the year.

Mr. Howlin

That is possible.

Chairman

It is clearly absurd. Members do not know the constituencies in which they will be campaigning because the boundaries change for each election. In my case, the boundaries have changed in successive elections. That was never intended and it was not the situation when I entered politics. During the past 15 years the constituencies I represented changed from three seats to four seats to five seats before returning to four seats.

Mr. Howlin

The Chairman survived elections in each one.

Chairman

Yes, but not without difficulty or effort. I have made my point but it appears that the Minister is not heeding it.

Mr. Dempsey

I wish to press the Minister on this point which I also made on Second Stage. As the provision stands, even with the Minister's amendment, the Minister's involvement in this matter is perfunctory. The section merely provides a mechanism for the establishment of the commission. The Minister made the point about the President of the High Court wishing to nominate someone to the commission and there are mechanisms within the section which allow for the replacement of members, etc.

Mr. Howlin

Will the Deputy not accept that what I propose is reasonable?

Mr. Dempsey

No.

Mr. Howlin

I ask him to please do so.

Mr. Dempsey

I believe the proposal in my amendment is more reasonable.

Mr. Howlin

I should quote a comment made by Deputy O'Rourke when in office when she stated "But I am the Minister."

Mr. Dempsey

The boundary commission has operated independently for 20 years. The amendment would copper-fasten the provision and highlight the fact that the commission is completely independent of ministerial involvement regarding its establishment. Will the Minister reconsider the position?

Mr. Howlin

The Minister has no function other than triggering the mechanism.

Mr. Dempsey

That is why I tabled the amendment.

Mr. Howlin

This is the neatest and most elegant way to achieve what is desired. No one will do so if the Minister is not specifically charged in this regard.

Mr. Dempsey

He does it once. The Dáil does it when they are established.

Mr. Howlin

Who checks that they are permanently there? They will not have any function for years on end. Who checks that somebody has not died? Who checks that the person appointed four years ago is not involved in litigation, hearing a case or chairing a tribunal that is difficult to get out of at that time? The Chief Justice might want to appoint somebody else. It is much neater and easier if I, or whoever is in office, signs the order when it is published. The Chief Justice makes the appointment and the others slot into place and get on with the job.

Mr. Dempsey

I do not accept that. The only person there might be any doubt about is a judge of the Supreme Court. That is the only person. The Chief Justice will know what the situation is at any one time and he can nominate somebody.

Mr. Howlin

He will not be thinking of boundary commissions for years on end. It will not be relevant. We have done it neatly.

Mr. Dempsey

He might actually have resigned and nobody might know.

Mr. Howlin

Exactly, or died.

Mr. Dempsey

I will withdraw and consider my position on Report Stage.

Chairman

There is no onus on the Minister to introduce legislation recommended by the commission. A Government could, for instance, delay the legislation if the boundary changes did not suit it.

Mr. Dempsey

That is dealt with by a later amendment.

Chairman

I would have thought that in this case the Ceann Comhairle should table the Bill and part of the report should be made automatically.

Mr. Howlin

Will I have to debate with myself? There is a point in what you say, Chairman. Obviously there is a constitutional imperative on the Government to act on the recommendation of the commission. If the constituencies as drawn were constitutionally flawed they would have to be addressed.

Chairman

Yes.

Mr. Howlin

I will have to check again whether it has to be addressed in exactly the way in which the commission recommends. Is that imperative?

Mr. Dempsey

No, it does not. The Dáil can change it.

Mr. Howlin

The Dáil can change it, of course. It has never been the case, obviously.

Chairman

No. There were one or two occasions when all parties might have agreed minor changes which would have made a lot more sense.

Mr. Howlin

All parties approached me about one boundary change which was not logical. I was bound by pressures in relation to it because if you move the goal posts once you are establishing a precedent that it is not sacrosanct.

Mr. Dempsey

The Minister should insert a provision that three-quarters of the Members of the Dáil could alter it.

Mr. Howlin

I will reflect on that again. There is absolute discretion and there is no imperative. The Dáil is sovereign in these matters.

Mr. Dempsey

I know, but I am making the point because it is a political issue. If the Minister could get all party support on the matter it should change. We had this situation in Mayo, although the one the Minister was thinking about was in the south.

Mr. Howlin

In Tipperary.

Mr. Dempsey

Yes. We had this situation in Mayo as well which is such an enormous constituency.

Mr. Howlin

Enormous.

Mr. Dempsey

That is why when we are talking about the terms of reference we would want to think a little more carefully about them.

Mr. Howlin

We will look at that again.

Chairman

Two questions arise here. A Government could frustrate the commission by not giving time in the Dáil for a debate on the Bill.

Mr. Howlin

The Dáil is its own master. The Dáil would have to decide that.

Chairman

No. The Government orders business.

Mr. Howlin

But the Dáil votes on business.

Mr. Dempsey

It effectively means that the Government can pick things as it goes.

Mr. Howlin

Effectively it does but in reality, if the Government has lost the support of the Dáil, that is the end of the Government.

Chairman

A Government with a majority that is faced with a boundary revision it does not like could actually frustrate that change because there is no onus on the Government to introduce legislation as soon as may be.

Mr. Howlin

We will look at that.

Chairman

There is also the point concerning minor changes to the proposals.

Mr. Howlin

That is in the hands of the Oireachtas. It is just that it has never been exercised.

Chairman

I know that but it might be as well to provide some fair formula that might make sense.

Mr. Howlin

I would be very reluctant to do that, Chairman.

Chairman

There was an obvious change that should have been made upon which everybody from all parties, including independents, was agreed, but I cannot remember what it was. It was in the Dublin area.

Mr. Howlin

Was it an anachronism?

Chairman

There was a silly matter which looked sensible if you looked at a map.

Mr. Howlin

In reality when you walked the streets it did not?

Chairman

Yes.

Mr. Howlin

If anyone has a mechanism they wish to propose I will happily look at it. I am loath to provide for anything that says politicians can reshape the result of an independent commission. That is my difficulty.

Chairman

I understand that reluctance, although it should be possible to make some provision for it in future.

Amendment, by leave, withdrawn.

Chairman

Amendment Nos. 24, 26, 28 and 48 are related and may be discussed together.

Mr. Dempsey

I move amendment No. 24:

In page 8, subsection (1), line 19, after "Part" to insert "and the terms of reference specified in an order to be made by the Minister under this section".

Mr. Howlin

The terms of reference of the Constituency Commission are set out in section 5. These amendments propose to delete the terms of reference in the Bill and provide that the Minister shall specify them each time a commission is established. The terms of reference in relation to Dáil constituencies are essentially the same as those given to previous non-statutory commissions. However, they are expressed in the more formal language which is required in legislation. The terms of reference in so far as they apply to Euro constituencies are similar to those which apply to the commission which advised on Euro constituencies in 1993.

I am advised it is better to set out the terms of reference in the Bill because if a future Government wishes to amend them it will have to come back to the primary legislation. The Deputy's amendments would entail coming back to the Dáil on each occasion, even if no amendment of the previous commission's terms of reference is required.

Mr. Dempsey

This brings us back to the point which the chairman raised earlier. The import of these amendments would be that the terms of reference of the commission would have to be approved by the Dáil rather than by the Minister.

Mr. Howlin

I am putting the terms of reference into the Bill.

Mr. Dempsey

That is what I am saying. Is it suitable to have such terms of reference in the Bill when there are such shifts in the population? Would it not be better to leave some discretion to the Minister and Members of the Dáil to discuss the draft orders on each occasion before they are put in place? A number of Members expressed their views after the publication of the report. Might it not be a good idea to allow Members to put forward points of view on the draft orders prior to their finalisation by the Minister?

Mr. Howlin

They can do that. The term of reference is basically prescribed by the Constitution. It will not change greatly unless people are asked not to adhere to county boundaries. It is as well to have it in the primary legislation. The notion of each Government devising its own terms of reference is less satisfactory.

Chairman

There used to be a term of reference which said that the larger constituencies should be in urban areas.

Mr. Howlin

Did Jim Tully do away with that?

Chairman

No, it was subsequent to that. It was felt there should be a concentration of larger constituencies in urban areas on the basis that a five seater in the country could be very spread out; however, it was largely ignored. I often felt there should be a mix of constituency sizes in each region.

Mr. Dempsey

At various times in the past, the boundary commission has put forward ideas in its reports on terms of reference and county boundaries. There was a substantial discussion on county boundaries in the 1980 commission report. I am concerned about setting this in stone in the legislation because changing it would mean going through the amendment procedures in the House. Over the last 20 years there has been very little change in the terms of reference.

Mr. Howlin

Virtually none.

Mr. Dempsey

I do not foresee any Government attempting to change the terms of reference unless by the agreement of the House.

Mr. Howlin

Since there has been no change, is it not as well to include in primary legislation? If a Government is minded to change it, a short Bill can be introduced.

Mr. Dempsey

I suppose it would happen rarely.

Mr. Howlin

It is preferable to let the Dáil express a view on it.

Mr. Dempsey

The Minister has convinced me.

Amendment, by leave, withdrawn.

Mr. Dempsey

I move amendment No. 25:

In page 8, lines 20 and 21, to delete subsection (2) and substitute the following:

"(2) A Constituency Commission and its members shall be independent in the performance of their functions under this Act.".

This amendment underlines the independence of the members of the commission. I am sure the Minister recognises the wording of the amendment as it is identical to section 33 of the Ethics in Public Office Act, 1995, which states that the Public Offices Commission and its members "shall be independent in the performance of their functions" under the Act. It is reasonable for a cynical member of the public to ask why the Public Offices Commission has a special section in the Bill and the boundary commission does not. I propose that its independence be specifically stated in the Bill to remove any doubt among the cynics who believe that various Ministers have influence on boundary commissions at various times.

Mr. Howlin

I discussed this amendment with a number of people and it is unnecessary. There is no difference between the commission and its members — the commission is its members and the members are the commission. The Deputy wishes to add the words "under this Act" but it has no functions other than those given to it lawfully under the Act. What the Deputy wants to achieve is encompassed in the existing wording.

Mr. Dempsey

There is a distinct difference between saying a constituency commission shall be independent in the performance of its functions and saying that a constituency commission and its members shall be independent in the performance of their functions under this Act.

Mr. Howlin

The difference is not clear to me.

Mr. Dempsey

The wording in the Bill means the body itself——

Mr. Howlin

The Commission.

Mr. Dempsey

——is independent but it says nothing about the individual members. If we want to call a spade a spade, a member of the commission, to whom I refer in a later amendment——

Mr. Howlin

Does the Deputy mean the secretary?

Mr. Dempsey

Exactly. I do not mean to cast any reflection on the man himself who is about to retire.

Mr. Howlin

He is a superb public servant.

Mr. Dempsey

Yes, he is. He is in the Department of the Environment and is answerable to the Minister. He is in a position to know the mind of the Minister, particularly at times like this. This is an unfair burden to place on such a man.

Mr. Howlin

Or woman in the future.

Mr. Dempsey

Or woman. It would be nice for the Secretary of the Department of the Environment if the Minister or anybody else attempted to influence his or her thinking to be able to refer them to section 4(2) of the Electoral Act, 1997 and reiterate his or her independence.

Mr. Howlin

Any Departmental Secretary or member of the commission would have that level of independence. However, given that it makes no difference I will accept it.

Amendment agreed to.

Amendment No. 26 not moved.

Section 4, as amended, agreed to.