Amendment No. 38. Amendments Nos. 39 and 40 and amendments Nos. 43 to 46, inclusive, are related. Amendments Nos. 38, 39, 40, 43, 44, 45 and 46 may be discussed together by agreement.
SECTION 8.
I move amendment No. 38:
In page 10, subsection (1)(a), line 21, before "report" to insert "draft".
The purpose of the amendment is to change the procedure under which the commission works to make it a little more transparent and democratic. I propose in these amendments that the commission produce a report in draft form initially and submissions can then be made. The commission would consider those submissions and a final report would be presented to the Dáil. Amendment No. 47 provides that the Minister should have no option but to produce legislation to be enacted by the Dáil. There are a number of reasons for this, the most important of which is in the interests of the much used and abused words, openness, transparency and accountability.
At present, the commission is formed and goes into conclave. It inserts an advertisement in the newspapers inviting submissions and every Tom, Dick and Harry decides to make a submission. Just over 100 submissions were made on the last occasion, half of which were from political parties or their members. A number of official bodies also made submissions.
We presume the submissions are carefully considered by the commission but we have no way of knowing that. The commission's report is final. Nobody has ever changed it and the Dáil has not had that opportunity. We had this discussion previously and the Chairman intervened. I am sure this situation, where there was all party agreement on a particular course of action in a particular area, arose with previous commissions. There was a case in Tipperary the last time. The Mayo case arose with the last boundary commission.
There was the Longford-Roscommon case.
Yes. Genuine views were expressed which seemed to find unanimity across the political divide. Most of the arguments in those cases and some which the Chairman made in relation to his constituency, related to social issues and whether areas had an affinity with each other rather than to political matters with regard to proposed boundaries. At present all we can do is make our views known in the House.
Pointlessly.
We know they will be ignored and the report will not be changed. My amendments would allow a draft report to be put before the House. With the procedure I am setting out, one could also ask the commission to go into conclave, produce a draft report and then seek submissions. We would have a general idea of where the commission was going and the practitioners and local communities affected would then have the right to make a submission on what would happen to them following proposed boundary changes.
At present, people are making submissions in the dark. They can only go by the terms of reference which are standard ones. If we had the initial draft, people would have a reasonable idea of the commission's views and they would be able to comment on the need to increase or reduce the number of seats in constituencies. The amendments provide that the commission's draft report would have to give reasons for the proposed boundary changes and that would give people a chance to put forward their ideas on them.
We will hear later about boundary commissions in other jurisdictions and how Ireland's system should be guided by them. The British system, under which the report is published and people have a set period of time in which to make their views and observations known and the commission takes them into account, is a reasonable one. We are probably the only body of people that would allow somebody to interfere with things which affect our livelihood and have no recourse to appeal. It is ridiculous. There have been cases where the views of the electorate appear not to be taken into consideration. I do not state that the amendments tabled in my names are vital to bringing about change but it is reasonable and worthy to consider the principle of permitting the introduction of a draft report on which people can base their submissions rather than making them in the dark.
Deputy Dempsey's suggestion has merit and it is worthy of consideration. I accept that we have made great progress since the Minister for Local Government, based in the Custom House, perused a tally sheet and decided the fate of many Deputies, if not that of various Governments. However, even the wisest of men can suffer aberrations at times. If Members want proof they need only consider the wise men who joined the constituencies of Roscommon and Longford thereby crossing provincial, European election and historical boundaries. In addition, they crossed the Shannon and, under the terms of reference, account is meant to be taken of rivers. A perfectly reasonable solution, without breaching county boundaries, could have been reached within Connacht without breaking that province's boundary with Ulster.
One of the major advantages of the commission is that a final report cannot be interfered with when it is published. As far as providing explanations is concerned, the commission is never found wanting in this regard. However, it is only in exceptional cases that the issues to which Deputy Dempsey referred arise. However, there are exceptional cases which do not occur to the officials involved in carrying out the census. Some of the information they receive from the franchise section is excellent and there are people in the Custom House who know more about this situation than politicians. Having said that, there is always the possibility of a major aberration. If action could be taken which would enable the commission to consider such matters without it being subjected to enormous pressure and if it were inclined to give way on anything other than an exceptional case, its independence would be challenged. There are a number of positive and negative aspects but the Minister should reconsider the matter.
On one level, there is an attraction in having a single, bullet point, take-it-or-leave-it report because it is manifestly capable of being described as "independent" and not subject to political manipulation. The attraction of that formula is certainty because once the commission makes a decision it is final.
Deputy Dempsey is correct that the people living in a certain county who do not want their constituency to be joined to another county are entitled to make a reasoned argument before a commission. These people should not be asked to make a written submission and then be left to wonder whether it received consideration or was shot down. I also agree with the Deputy that, in Northern Ireland, the constituency commission process is more open. It may be subject to political influence and people may believe that it makes political decisions, nonetheless, communities are permitted to make their objections known. I do not know why Inchicore and the docks area are included in the Chairman's constituency but perhaps this arrangement suited him. However, it is a fascinating constituency and resembles constituencies invented in America to ensure racial quotas among voters.
I am fascinated that Deputy Nealon is aware of the quality of the submission from local authority officials to the commission.
I made some of those submissions.
Yes, but I am fascinated that the Deputy is aware of the excellence of the material issuing from the franchise section.
It is published in the commission's report.
I apologise, I thought the Deputy was revealing secret information. I support Deputy Dempsey. I do not know whether it should be classed in the form of an appeal or a provisional and final report. However, there should be a two-stage process where the commission produces its provisional findings, engages in a process of hearings to facilitate objections and issues its final report. There is nothing wrong with that process in principle so long as it is carried out in public, a judge and his or her four colleagues hear everyone's objections and newspapers can report on proceedings so that people can see that no improper influence was exerted.
On the last occasion we met I made the point that there should be a simple statement in the legislation that the only method of communicating with the commission should be through a formal written submission or an oral submission given at a confirmation hearing. It should be an offence to attempt to indirectly communicate with or exert influence on the commission and there should be a clear criminal sanction against anyone who attempts to do so. There should also be a clear statutory duty on members of the commission not to entertain any such communication.
To return to Deputy Nealon's point, why should the recommendations of the franchise section of the Department of the Environment not be made public? It has been suggested in the past that these recommendations are the most influential input to the commission and possibly it is inevitable that this is the case. Why should the nature of that input not be made public?
Deputy McDowell is mistaken. I referred to an extraordinarily detailed background of various influences. I do not believe it is fair to describe these as recommendations.
I do not mind whether they are described as recommendations. They could be termed "briefings" or "possible models". However, I do not understand the need for their being made as part of a secret process. Under section 14, total secrecy will be imposed because any information available to the commission, which is not authorised to be published by it, must remain completely secret and its existence cannot be disclosed on pain of criminal offence. It would be more impressive if the franchise commission's report was made public so that every Dáil Member could be aware of its suggestions and see the judge's opinion following receipt of various submissions. Everyone could make up their own minds if that were the case.
There must be a case for people to make oral submissions. Whether we like it or not, certain of the Minister's predecessors were credited with exerting influence on the independent commission. From the point of view of making submissions, on the second last occasion the commission sat I was obliged to make a detailed submission, following exhaustive research, but a large part of County Galway was joined with County Mayo to ensure that my constituency remained a three seater. On the last occasion, as a matter of principle, I did not make a submission because it would have been a waste of time. Nonetheless, the part of the county to which I referred earlier was returned but I lost another valuable area in south County Galway. I do not know whether my submission went into the bin or was ever looked at despite several week's work. There must be a case for oral hearings. One hundred people made submissions on the first occasion. They are serious about the matter and are entitled to a hearing.
I have considered this series of amendments because everyone wants to ensure we get this right. There are a number of flaws in the suggestion. Deputy McDowell instanced the most compelling reason not to move. If an independent commission is set up by statute, its independence is established. I accepted an amendment previously which emphatically stated its independence. It is difficult to tamper with its findings. If one gives it a specific task and the support to do it, how does one unravel its findings even if one feels it made difficult decisions? Every constituency review would disadvantage a number of Deputies. They will feel the decision was odd, bizarre or quirky because it did not suit them. Each would have a right to appeal.
It has been suggested to me in the past that the issue is similar to a jigsaw. If one takes out one piece, it resonates across every other piece and if one identifies a difficulty in a constituency rectifying it could create further anomalies. The only way to do the job is to give it to a small number of people. It cannot be completed by getting everybody involved. What is a camel but a horse designed by a committee. If everybody wants to get their area right, we would have an open ended system of people trying to make their own minor adjustments with no finality to the process.
We propose a statutory independent commission and a public consultation process which would involve the invitation of submissions. It will be open to the commission to have oral presentations. It will give a fair hearing to any points made and will then have to make difficult adjustments to suit the population shift. The population will not fall ideally into counties and there will be overlaps about which decisions will be made. That is inevitable but, ultimately, there is a right of appeal. The Deputy is right in saying, it is a right never exercised but the ultimate right of appeal rests with the Oireachtas. The report of the commission must be enshrined in legislation. If there are clear reasons for adjustment to be made, it is open to the Oireachtas to make such amendments to the Bill as it sees fit. That is the final protection against gross quirkiness. We have to live with many minor irritations. In an ideal world, the commission would operate slightly differently but it has to deal with population distribution as it exists.
We had a discussion about the role of the secretary of the Department of the Environment when I appeared before the committee previously and we gave further consideration to Deputy Dempsey's strongly held view that it would be inappropriate for the secretary to be a member of the commission. My mind is not closed on that point. In drafting the legislation I thought there was a very coherent reason for continuity. The franchise section of the Department will be used for supports and secretarial back up, thus providing raw details. It will not make recommendations and will solely provide data which will be moulded in accordance with the commission's recommendations. There is no model on which to base anything.
For those reasons I ask Deputy Dempsey not to press his amendment. The system will be independent, although it will not be ideal in that the result will not suit everybody but for the first time we will have a statutory independent commission capable of accepting written and oral submissions in public if it so chooses. Ultimately the final arbiters of the commission's report and the decision in regard to boundaries that will effect the subsequent election rests with the Oireachtas.
The Minister and I are not at loggerheads on this issue but I will refer to a number of points he has made. My proposal will be privy to the excellent information available in the franchise section. A colleague in my constituency made a submission to the last boundary commission. He felt some part of the constituency should be lost or that a part of another constituency should come in. If he was in a position, as he would be under my amendment to see the draft report on where the commission was going, he would find that half or three quarters of the submissions would not be acted upon. I agree with Deputy McDowell that this information should be published when the draft report is made public. That element of the work involved would be removed.
The Deputy does not know that but it could be anticipated.
That is still not a good reason for not allowing that process to take place. Lives are involved, whether it be politicians or constituents. The Minister has never had the experience of parts of his constituency being added into another or vice versa whereas I have. There is a human dimension to this.
When the commission is established it will get information from the franchise section and any other technical information it would need. On the basis of the terms of their reference, they could attempt to produce a report or even state that there are two options for dealing with the matter and invite submissions. It is at that stage, before any final decisions are made, that people should have the right to make their views known, not when they are in the dark.
There is no conflict between the independence of the final report and putting the commission on a statutory basis because that will make it legally independent. There is no basis for fearing undue influence given the people on the body and its statutory basis, and also because this amendment will have been accepted by the Minister.
I hope he will also accept a later amendment to make it an offence for people to seek information from members other than in the prescribed way. I do not accept that the independence of the commission will be inhibited by allowing people to put forward their view on proposals which might be made.
Another of our amendments provides that the Minister, the politicians and the Dáil will have no say in the acceptance or otherwise of the final report. The amendment states that the report shall be accepted and shall be put into effect.
The Oireachtas is supreme.
I have heard that before and I know how independent it is. No Government will try to change a boundary commission report because the Opposition will accuse it of gerrymandering. Let us quit the pretence. We have a statutory independent body and people should be given the right to make submissions when they know how things are proceeding and where changes might be made. When the decision is made it will be final.
I see considerable merit in the arguments put forward. The one problem is that in order to make the commission independent and non-political its members will not be politicians and no one will have practical experience of the realities. That is as it should be but there should also be a mechanism to allow people with experience to make a case. As Deputy Dempsey said, neither any Oireachtas nor any Government will attempt to change a boundary commission report.
For example, what does the word "contiguous" mean? My constituency is contiguous but it contains the Phoenix Park, Heuston Station and the Royal Hospital, Kilmainham, where there is no communal contiguity. One report drew a constituency of which one section was landlocked or separated from the rest of the constituency by Inchicore rail works. To get to the rest of the constituency one went through Dublin South-Central on one side or Dublin South-East on the other. Although it looked contiguous on the map, a practical person would not have done what the commission did because the area was disconnected. I think there is much merit in these proposals and perhaps the Minister could see if he can facilitate them.
The Chairman is suggesting we appoint someone with experience. Deputy Nealon is retiring and he is a suitable person with great knowledge.
What about the Chairman himself?
He is retiring also but Deputy Nealon wrote books on this subject. Could the Minister say whether there is a provision for the time for redrawing the constituencies? This can be vital because if they are redrawn shortly after an election, people must represent the new and the old areas. I have had experience of that. One is obliged to continue to represent the constituency to which one was elected, despite not representing it at the next election.
I am sorry to interrupt the Deputy but the Minister must go to the Dáil for the Order of Business. I will allow him to resume when we return.
Sitting suspended at 10.15 a.m. and resumed at 11.15 a.m.
Does the Minister wish to say anything further on the amendments?
No.
It struck me that there is nothing inconsistent between independence and producing a provisional report. Deputy Dempsey said he saw a constituency colleague putting in a submission. He was not entitled to know what was in that submission. It could have been against his interest but he would only find that out after the event. It is the hallmark of star chamber procedure to find out about something after the deed has been done.
It is entirely consistent with an independent and authoritative report to have the following steps in every constituency revision. The trigger mechanism for the commission is the publication of the CSO population census. There should be a statutory duty on the Minister for the Environment to publish a response within a given period stating how, and to what extent, existing constituencies are out of kilter. After the national average has been established it should be stated that Dublin South-East, for example, is four points, or whatever, off the national average. Although people with degrees in mathematics might be able to do this work for themselves, why should the Department of the Environment, which is going to do that work, not publish that report first? Suppose that there was no change in Dublin South-East. This does not necessarily mean that its boundary will not change because other constituencies may have changed. However, at least it informs the public about problems that have arisen. At present, members of the public has no factual data matrix on which they can draw these judgments unless they are experts.
The commission should report shortly afterwards. While theoretically there may be no need for a constituency commission, the Department should be bound to undertake this evaluation and publish it. This will enable the Minister to decide, on the basis of advice, on the adequacy of existing tolerances to cover what has happened since the last census of population and on whether to appoint a commission. If there are to be more frequent censuses the Minister may decide that it is more or less covered and propose not to restart the whole process.
The commission should then look at the Department's proposals and advertise for written submissions. Every submission should be a matter of public record and subject to inspection, similar to existing procedures at An Bord Pleanála. The public becomes aware of the issues when the procedure is finished and written submissions have been made. In some instances there may be no need for anybody to do anything; for example, it may be clear that there would be no significant changes in Munster. A provisional report would then be produced and people would be asked to make submissions.
The Deputy is outlining a long procedure.
It is not that long because these steps must be taken in any event. Short deadlines would be required. Following the publication of the provisional report, hearings can be taken in public or private, but at least everybody knows what everybody else is saying to the commission because the only legal way to communicate with the commission would be through these submissions, with the changes similar to those outlined in the prosecution of offences legislation included in the Bill. When that procedure is finished the commission would produce its final report.
The Minister will respond to Deputy Dempsey's amendment to the effect that the Oireachtas cannot be bound to legislate one way or another. That is why the Progressive Democrats made provision for an independent commission in its proposed constitution.
Which deleted reference to God.
That is correct. For the record, our proposed constitution reduced mentions of God from four to three. It is interesting that the constitutional review group report, on which Deputy Lenihan and I function, makes no mention of God.
It refers to Dochum Glóire Dé agus Onóra na hÉireann. It forgot about that.
In its secularism it forgot to remove that clause.
That is because it is in Irish in both the English and the Irish texts.
They could not understand the Irish. We need a procedure that is clearly understandable and transparent. The Minister suggests that finality and certainty are the chief desirable qualities of a report. However, I can send a letter to the chairman containing inaccuracies which nobody can know about. That is surely wrong. If, for example, the people of Oldcastle do not want to be put into County Cavan they are entitled to know that one of their public representatives is urging that they be included or taken out. Why can the people of Dublin-North not know if, for example, Fine Gael, Democratic Left or Labour makes a proposal that the constituency be divided between two other constituencies? What defence is there in principle to a secret submission urging a secret, binding result when those affected by it will not be able to know what is going on?
This is interesting but it is not relevant to the amendments.
It is relevant to the amendments and to this whole procedure. Deputy Dempsey has requested that a provisional report be published because he wants transparency. To have transparency a set of steps is required to ensure people know what is happening. Why should I be able to make a secret submission to a commission, to which it is supposed to pay attention, and about which nobody else knows? That has nothing to do with independence or fairness.
If the function of the commission is likened to an arbitrator with a quasi-judicial approach, why is it entitled to have regard to matters in the form of submissions of which nobody else is aware? This breaches one of the basic rules of natural justice that everybody affected by something should know what is going on.
I have no difficulty accepting the logic of the Deputy's comments. We can address the issue when we reach it.
It is relevant to Deputy Dempsey's request. The Minister says that finality requires a single report. However, that procedure is based on secret submissions. The commission the Minister argues to keep in existence is secret and operates secretly.
I propose to put on a statutory basis the system what has been supported by successive Governments in terms of having an independent, non-statutory commission. There are a number of imperatives with regard to the matter that it would be reasonably efficient, totally independent and would not be amenable to influence. The structure that has been devised and supported by successive Governments and Parliaments has largely met those criteria.
The Deputy makes a valid point regarding the publication of submissions. People could be disadvantaged by a submission about which they know nothing and are not in a position to rebut. I will address this issue.
My difficulty with the publication of an interim commission report is that ultimately there must be a final report, which means that there could be any number of interim reports. Essentially, somebody must draw all the lines and cannot look at individual pieces of a jigsaw. If the commission redraws certain lines following a submission, those affected elsewhere will seek the right to submit. Where would it end?
If a submission is made it will be open to anybody to make a counter view.
Suppose Meath is being adjusted and the Deputy makes a submission when the interim report is published. The commission hears both sides and decides not to proceed and, as a consequence, somebody else will be affected. When the next report is published do the people who are consequently affected then have the right to make a submission? Why should just the first group affected have the right to comment on a draft? The entire jigsaw ultimately must be in place. One cannot address or affect one area without having regard to the totality.
They do in Northern Ireland.
Does that make it right?
No, but the Minister pounded the table on the last occasion and told the committee that Ireland was the only country that did not have limits on election spending.
Not quite.
Does that make it right?
I should declare an interest. I made a submission to the last commission when I was a private citizen.
Did the Deputy circulate it to his Oireachtas colleagues?
No. I was not a Member of the Oireachtas at the time. The report acknowledges that I made a submission in a private capacity. I obtained the various maps of the district electoral divisions throughout Dublin from the Ordnance Survey and the census data and I prepared a detailed submission. I made provision for various contingencies for the entire Dublin metropolitan area because I envisaged the point made by the Minister that any suggested revision in relation to the western suburbs of Dublin would have knock on effects, I accommodated that in the submission. It is possible for somebody making a submission to allow for the jigsaw variations by consulting the census data.
I also made a serious constitutional point in my submission which the last commission did not address. I felt at a considerable disadvantage as a citizen dealing with the commission because, as the Minister will recall, the previous revision reduced the representation of the greater Dublin area from 48 to 47 seats. The boundaries and the commission report maintained that representation although there were substantial population movements in the interim. My reading of the High Court judgment in the O'Donovan case— admittedly it is only a persuasive authority because the subsequent Supreme Court judgment in the Electoral Bill reference is the guideline used by the Minister and his officials— is that the arrangements arrived at by the current commission were arguably unconstitutional in not allocating Dublin an additional seat at the last revision.
Munster has a lower population but more seats.
That is correct but despite that, the commission did not allocate the additional seat to Dublin.
Why not?
We were not told. I made a detailed legal submission about it but I do not know what countervailing submission or legal argument was made to the commission to rebut it. It also struck me that there was a definite defect in procedure. Citizens are at a disadvantage because if there is a subsequent challenge to an Electoral Bill in the courts or a reference by the President, the fact that a judge was involved in preparing the report means it enjoys great weight in the courts. They will attach a considerable presumption of constitutionality to the resulting measure.
I do not suggest a judge would be influenced because a colleague sat on the commission. However, the courts are faced with a Bill which is the result of a previous judicial exercise and they will be slow to upset that. However, a private citizen who feels he has an arguable point to make has no real forum in natural justice to ventilate it because the commission can make a private one sided determination on that issue. It relates to the fundamental point which arises in the amendment, I agree with the provisional report approach. We are moving from an informal approach to legislation. Is this a political or judicial exercise?
There have been lingering political considerations — I use the word "political" in the best sense — in the process that has been adopted since 1979. It was an informal procedure and political considerations included the need to preserve the stability of constituencies and to avoid causing too much dislocation. Various similar matters were taken into account.
And ignored.
If we take a judicial approach, we must allow for much more natural justice, particularly if the matter will rest on statute. Once statute is involved, the possibility of judicial review looms much larger. We must be much more careful about how the matter will be recommended. There is much to be said for the provisional approach. If there is a provisional report, it will not be enough for people making objections and submissions to say, for example, that they do not want Oldcastle moved into Westmeath. They must devise a scheme which will keep Oldcastle in Meath but at the same time allow Cavan or Westmeath proper representation. People making submissions are aware of the census data and the district electoral division populations throughout the State are readily available in booklet form. However, there is a lack of argument in the procedure at present and that is why the amendment was tabled.
I accept part of the Deputy's argument but it does not provide a solution. Although somebody as enthusiastic and competent as Deputy Lenihan may draw up an entire boundary for Dublin, the finality of it cannot be addressed until the entire distribution of population in the country and every constituency can be addressed. Otherwise, there is incomplete constituency redrawing. There is no merit in having an interim published document which allows people to comment because, of necessity, any adjustment will have consequential effects and the process must be restarted. I accept the principle of the argument that the submissions procedure should be much more open and I will address that. I will welcome amplification of an amendment to section 9 to make explicit provision for the publication of all submissions and for oral hearings.
There is an open process in advance of determinations. Once the determinations are made, a commission could not allow itself to be open ended on the basis of submissions once it made its best effort at getting everything right. It is not possible to satisfy the Opposition's demand to allow people to comment on a decision. Any adjustment would have a consequential effect and would confer the same right on other people affected. It is open ended.
That happened in Northern Ireland.
From my perspective, a statutory independent commission is a fairer way to proceed.
Tossing a coin would be a fair way to do it.
There would be an open submission procedure and a requirement to have public participation. Anybody who wishes to make a submission would be entitled to do so with provision for oral submissions and evidence. I accept the validity of the arguments that all such submissions should be public and that no submissions should be made other than through the defined set procedure. Once that is in place, there must be finality and a mechanism which will produce a result. Despite the points made about what Governments and the Oireachtas will not do, ultimately it is a matter for the Oireachtas to translate final commission reports into legislation. If there is a glaring anomaly and an issue which begs to be addressed, the Oireachtas has the constitutional right to make such adjustments to the Bill.
If the case made by Deputy Lenihan arose and Dublin had one fewer seat, what can the Oireachtas do if that is pointed out on Second Stage or Committee Stage? It cannot just award an extra seat to Dublin. The entire map would have to be redrawn.
That could be done.
That politicises the entire procedure again. It does not achieve the objective of the Bill, which is a quasi-judicial arbitration procedure.
Ultimately, an independent commission— with which nobody disagrees— must make a decision. The Deputy's point is if one does not like the decision what can one do about it? If many presentations and submissions are made and the commission ultimately makes a decision, what can one do if one does not like it?
I accept it must report in one direction or another. However, the crucial point is that the Minister is making provision for the commission to take submissions but he is giving no indication of what weight will be attached to them. Deputy Lenihan, for example, will not be able to see if his submission lay in a bin or whether it was judged. There are no certainties.
An assurance that great weight will be given to the consideration of a submission cannot be given. All must be given weight.
That is not so. Rubbishy submissions would not be given consideration.
All have to be given consideration and the weight they deserve.
They do not all have to get an oral hearing.
There can be many worthy and logical submissions that are at variance with each other and the acceptance of one might nullify the other. Deputies have instanced An Bord Pleanála; if that organisation wants to make a decision it does not allow people to come back again. It listens to all submissions and everyone participates, but then it makes a final adjudication.
That is correct.
They do not publish.
It is appellate but one of the problems with planning permissions is that conditions are attached which come out of nowhere leaving people to say that if they had known of such conditions they would have argued about them and brought in appropriate evidence.
The Minister is moving toward the amendments and I can see the difficulties he is outlining although he is exaggerating them. Every system— and we have gone through waste management and Environmental Protection Agency Bills— has a structure for people to make submissions and appeals. The body then makes a decision against which there is no appeal. I do not accept the Minister's argument that this would be open ended. Some people might be upset if decisions were overturned but that will happen with an appeals procedure.
At a minimum, once the commission is set up it should get all the information it normally gathers from the franchise section of the Department, such as census data, the variations from the norm and constituency populations. To address Deputy Lenihan's point, having had a preliminary look at that, the commission might say, with regard to the information it has, that it proposes to allocate seats per European Parliament constituency on a given basis. Then it could call for submissions and everybody would know the basis on which it is operating; Oireachtas Members can be circulated and advertisements can be placed in the newspapers for the information of the public. That meets the Minister's difficulties in changing decisions and my difficulties with a closed procedure where nobody knows what is going on. Will the Minister consider this? I acknowledge that he will deal with it in the next section but it is important that the playing field be level for all those who will make submissions and that nobody will possess information others do not have. It will make matters easier for the commission as well and it may be the solution.
One point on which virtually everyone is agreed is that certain proposals make no sense and that there should be an alternative. Such was the case with one recent report.
In my case, the Royal Canal was a boundary where one had parts of the constituency jutting outside and inside that boundary. It would have made sense to swap them but that could not be done. There should be a provision when there is widespread agreement and there are no knock-on effects.
There is a provision for the Oireachtas to do that.
In practice it never does.
In practice it has not, though it is possible. How does one make provision for that?
Once we do that we breach the convention the report is incorporating. I remember former Deputy Pádraig Flynn, with his criteria for constituencies, using a judge to anoint what in my view would have been a most unfortunate result — and I said so publicly at the time. I said it was most unfortunate that particularly partisan terms of reference were being given to a commission to be chaired by a judge because the judge would appear to make it fair when the terms of reference, in my view, were unfair. If we do not accept a convention that the Oireachtas does not interfere with the report prepared for it, we should do what Deputy Dempsey suggests; a rational input before it is too late. The Minister glibly states that every other country with a constituency review procedure allows for significant submissions. The UK's procedure allows for provisional reports to be issued and then for changes to be urged. That does not take from the commission's independence and it would be more destructive of the Bill if the Oireachtas is allowed to say: "Forget this, we will do our own job as we do not agree with this." That is not an argument.
I know the Minister is trying to meet us on this matter but perhaps we could distinguish between the national and regional allocation of seats and the particular delimitation of boundaries for the report. The allocation of regional and national seats is a separate issue. There is discretion to allocate between 164 and 168 seats. It is far more difficult to draw up a submission if one does not know how many seats the commission will allocate because then one must prepare for five or six different contingencies with district electoral data and maps. If one had an interim report that dealt with national and regional allocations first, one could then have more focused reports for the second stage.
I am sorry to revert to a personal experience with submissions but one of the present problems is that the national and regional allocations are end driven rather than beginning driven.
That is the import of the judgments on the constitutional position. The population does not refer to those boundaries but to population bases.
That is right.
We must act within the Constitution and an initial division on a regional basis would not be following the diktatof the courts in determining cases to date.
But on an interim basis, and in accordance with the Constitution, there would be nothing improper in the commission making an interim proposal to allocate a certain number of seats to Dublin and to Leinster, with or without Roscommon as the case may be.
I did not say they were unconstitutional; they concern guidance.
The constitutional reform about which Deputy Lenihan is talking——
He is not talking about guidance but about the commission making an interpretation.
It starts off with a provisional estimate of what each Euro constituency will get.
Every report has started with a regional allocation.
The specifies of the allocation must match the seats to the population because the population determines this.
Recent reports of the constituency commissions start with the national allocation to which they purport to give objectivity. They then proceed to a regional allocation to which they purport to attach objectivity. I hope the Minister is not suggesting the commission has been unconstitutional.
Or is pulling the wool over our eyes.
We need to allocate 47 seats to Dublin to avoid disruption in Mayo. If that is the basis of the commission's reasoning, it is a fallacious form of reasoning and we should insist it does what it suggests in its reports, that is, that it produces an interim recommendation on the overall allocations which would assist in the preparation of submissions.
When doing geometry at school I remember that if one could not get a theorem to work out, one would start at the top and work from the bottom, leaving a non sequitur in the middle. I believe that is what Deputy Lenihan suspects in that the commission arrived at the end and then stated the criteria which drove it.
I genuinely believe it would be cumbersome and unworkable to have an interim report. The commission will receive submissions and if there was a significant change, those consequentially affected would not have the same right of appeal. However, I accept the bones of Deputy Dempsey's suggestion that we make it mandatory on the commission once established to publish CSO figures on a constituency basis, the constitutional guidelines which will guide its discussion and the variant from the norm — plus and minus — on a constituency basis. That would give people an idea where decisions would be made. If that helps, I will include it in the Bill.
Amendment, by leave, withdrawn.
Amendments Nos. 39 to 41, inclusive, not moved.
I move amendment No. 42:
In page 10, subsection (2), line 33, to delete "section 5 (2)" and substitute "subsection (2) and (3) of section 5".
Amendment agreed to.
Amendments Nos. 43 to 46, inclusive, not moved.
I move amendment No.47:
In page 10, subsection (4), line 40, after "Oireachtas" to insert "and not later than one month from the date the final report was laid the Minister shall initiate legislation to enact the recommendations contained in the said report".
This straightforward amendment is designed to ensure that "not later than one month from the date the final report was laid the Minister shall initiate legislation to enact recommendations contained in the said report". It will ensure no future Minister will sit on a constituencies report because it does not suit him or her or his or her party. Such legislation would simply change names and protect the innocent as far as possible. It is standard legislation and should not take more than a month to draw up. It would copperfasten the importance of this being an independent body making independent recommendations to the Oireachtas and would allow a debate on the recommendations of the commission to take place immediately.
Perhaps a draft Bill could be submitted as part of the report.
That would be a good idea.
Is there a constitutional duty on the Oireachtas to enact the legislation?
The report of the commission would have a schedule which would be the Schedule to the Bill, that is, defining the constituencies and the distribution of seats. It is not necessary to provide that the Bill legislate for the revision of Dáil constituencies as there is already a constitutional requirement to do so, as Deputy McDowell rightly said. Article 16.2.4. provides that the Oireachtas shall revise the constituencies at least once in 12 years. Article 16.2.2. provides that the number of people represented by each Deputy at any time must, as far as practicable, be the same throughout the country. There is a constitutional imperative on us to respond to a census report. That is why the census report would automatically trigger the commission.
Looking at the present situation the Minister will hold off his commencement order, which we discussed the last day, because he does not want a commission coming into operation to revise matters?
I would like to deal with this question because I am concerned not to have an election on constitutionally frail grounds. I do not believe a Minister can tie the hands of the Oireachtas in future in the way the amendment suggests in terms of being bound to implement in full the commission's report. A future Oireachtas must make its own determination in that regard. Besides, it would be meaningless since legislation is subject to change. If a future Minister was minded in the way the Deputy suggests, he could simply introduce amending legislation. Therefore, it is meaningless in those terms. The Oireachtas should always be free to make decisions. Where we stand now is more than a question of academic interest. In terms of the publication of the final result of the census, there is a constitutional requirement on me, as soon as the final report is made available to me, to act on it and to set up such a commission.
Is there an obligation on the CSO?
It will publish the results as soon as it has made its findings. I consider myself obligated to act on such advice not withstanding whether this Bill is enacted by that date. There is a constitutional imperative on me which has nothing to do with the enactment of this legislation which devises the mechanism for fulfilling that constitutional obligation.
I understand the Central Statistics Office has published the DED results on a preliminary basis, this is insufficient.
Why does the Deputy say that is insufficient?
It is not final.
Where does the Constitution refer to a final report?
Our only interim report is subject to amendment.
The Minister said there was a constitutional imperative on him. Where does the Constitution decide that something with final or interim stamped on it has this triggering mechanism?
Article 16.2.2 provides that the number of people represented by each Deputy at any time must, as far as practicable, be the same.
We have the interim report with all the DEDs in it.
That is not a final report and the advice I have is that until such time as I am informed definitively that there is such a variation, it is not imperative for me to act.
That is a statistical exercise within the CSO. There is a serious discrepancy.
I am advised there is a legal determination in the O'Donovan case which states the final census report is binding.
On one occasion the census was wrong.
It is another way around the Boundary Commission.
That was an inter-party Government in the 1970s.
All Governments today are inter-party.
The incoming Fianna Fáil Administration conducted a census for the purposes of proceeding to delimit the constituencies in an effective manner. Based on preliminary data, my constituency has about 100,000 people and was allocated four seats at the last election on the basis of a population of 90,000. That was beyond the tolerance for a Dublin constituency. I was surprised at a commission which made a recommendation for a four seat constituency.
Knowing the population of the area was growing.
It shows the urgency of dealing with these matters as soon as the preceding census is completed. The time taken in the past has been too great.
That is a point, especially in Dublin where the population is clearly growing. Some way should be found of encouraging the commission to anticipate that by allowing a negative tolerance rather than a positive tolerance in such situations to avoid unnecessary change later. It was clear at the last drawing of constituency boundaries that Dublin West could not last very long in the new form proposed.
Dublin North was allocated four seats on a population of 80,000 which is way below the tolerance, presumably on the basis of anticipated future population growth although that assumption was never stated in the report.
This is a commission on which the secretary of the Minister's Department sat.
Totally independently.
I take it from what the Minister said that his main objection to my amendment has more to do with binding the Oireachtas to an Act or the recommendations contained in the report. The spirit of the amendment was to ensure that no Minister sat on this report for six or eight months for political purposes. The Minister might consider making such a provision on Report Stage. I will redraft the amendment. It is the principle of binding the Oireachtas which is objected to but I want to include the principle of binding the Minister. I withdraw the amendment until Report Stage.
Amendment, by leave, withdrawn.
Section 8, as amended, agreed to.
Amendment No.48 not moved.
Section 9 agreed to.