I am pleased to have the opportunity to contribute to the debate. I compliment Fine Gael and Deputy Maureen O'Sullivan, my constituency colleague, on bringing the legislation forward. I read the contribution of the Minister for the Environment, Heritage and Local Government and it was incredibly self-serving. He has gone totally Fianna Fáil native. He stated he was "giving consideration to establishing an electoral commission on a non-statutory basis to report on the electoral reform agenda set out in the renewed programme for Government". I always thought a programme for Government was reasonably specific about what was intended by the partners who put it together but he will only give consideration to the possibility of setting up an electoral commission. That might be on a statutory or non-statutory basis and he will still have to think about all of that. He will then only talk about the agenda and not about the implementation. He certainly has gone native and even Fianna Fáil would admire that powerful kick to touch by the Minister last night. The great green giants of democracy from whom we heard so often on this side of the House will not precipitate a general election. Principles were all right when Green Party Members were in opposition but now that they are in the Fianna Fáil tent, they are like Groucho Marx, as they have access to a different set of principles entirely.
The Bill proposes simply to amend the Electoral Act 1992 in order that by-elections would take place within six months of a vacancy arising, which is a reasonable and modest proposal. It is intolerable that any government should refuse to hold a by-election because it knows it will not win. It is a cynical response from the Government, which has lost direction, leadership and ideas, and which knows it will almost lose its majority if it loses the three by-elections. The only thing on the Government's mind is to avoid the evil day of an election and to creep by all means possible to the magic date of May 2012, which will give it an additional two years in office and allow it to run its full term. However, while that is what the Government is seeking, that does not represent democracy for the people of Dublin South, Waterford and Donegal South-West who have been left without their constitutional entitlement to representation in Dáil Éireann.
It is almost 12 months since the European Parliament elections were held on 5 June 2009, as a result of which Donegal South-West has been without representation in the House. If the Government manages to struggle on to 2012, the people of that constituency will have been without representation in the House for three years while the people of Dublin South and Waterford will have been without the same for almost two and a half years but the Government parties have no intention of budging unless they are forced to do so.
There is a precedent for forcing a Government to budge. In 1993, Dr. John O'Connell resigned his seat in Dublin South-Central and there was no move by the then Government for 14 months to hold a by-election. A student took a High Court action to assert his constitutional entitlement to vote in common law, by statute and under the Constitution. His application was upheld by Mr. Justice Geoghegan who said there was a reasonable case to be answered and that judicial review proceedings should be instituted. The Government moved urgently having seen the writing on the wall and it caved in and conceded the holding of the by-election, which it lost.
However, that is the position we are likely to find ourselves in with the current Government parties. They will not concede unless they are compelled by the Judiciary to do so and that is not satisfactory in a democracy. Given the principle of the separation of powers, the Judiciary should not be responsible for ensuring the Houses of the Oireachtas, which are the central institutions of democracy, make a decision to ensure democracy is upheld and I hope it will not come to that. The Government should accede to the legislation. The decision of Mr. Justice Geoghegan, who now serves on the Supreme Court, has been approved by the eminent constitutional lawyer, Dr. Gerard Hogan, and, therefore, the writing is on the wall for the Government in this respect and it cannot keep the evil day away. I hope this will happen sooner rather than later and judicial review proceedings will not have to be instituted to establish the citizens' right to democracy against the Government's attempt to deny it.
There is an alternative scenario, which I do not greatly favour. Members of the European Parliament are elected in Ireland and other member states. Substitutes for those elected are also named in advance and if an MEP has to step down or resign, the substitute steps into their place and there is no need for a by-election. Similarly, no by-elections are held for local authority seats if a member step downs. It varies from place to place but generally the political party that holds the seat when the vacancy occurs nominates somebody who is then accepted, although that does not always happen. No by-elections are held for Seanad vacancies. Members of both Houses of the Oireachtas choose the replacement Senator. The full electoral process only applies to vacancies in the Dáil and that is proper, given the pre-eminence of the House over all the other democratic institutions of the State. We should hold onto that.
A by-election is an important mechanism to ensure the public have an opportunity of exercising their mandate by electing whom they wish at all times to serve in the House. I strongly urge the Government parties to accept that they cannot deny democracy and that the Constitution makes provision for the election of Deputies. It does not make specific provision for by-elections but a reasonable interpretation is that the intention is that a replacement Member should be elected in a by-election within a reasonable time. That is what is proposed in the legislation and the Government should agree to this. I urge it to do so before it is compelled to do so.
