Seanad Éireann díospóireacht -
Wednesday, 1 Mar 1967

Vol. 62 No. 14

Local Government (Dublin) Bill, 1967 —Committee and Final Stages.

SECTION 1.

Mr. Garret FitzGerald

I move amendment No. 1:

To delete line 17 and substitute "(b) by the deletion in subsection (5) of ‘and rateable valuations"'.

We have already succeeded so effectively in debating this Committee Stage amendment on Second Stage that there is not really very much left for me to say now except to express the hope that the Minister in the light of the period of reflection which he has had the benefit of will review his position in this matter. I have thought over and read his arguments since the debate the last time and I find them most unconvincing. The nearest thing to an effective argument is the suggestion in relation to the practice of eliminating any requirement that there would be a relationship between representation and population or electorate. This practice was adopted in 1941 in respect of areas outside Dublin. While the Minister does not suggest that this is necessarily desirable and while in relation to some consolidation or amending measure in the future he might move away from it, he wants in the meantime to impose uniformity in this matter by eliminating in relation to Dublin the requirement which does not exist in relation to the rest of the country.

This seems to be the only argument put forward which carries any weight whatever. I find this unconvincing. I see no reason suddenly now, apparently not long before the whole matter will be reviewed, which I gather from what the Minister said, to effect this change which eliminates a safeguard and protection, not provided in this instance by the Constitution, as regards the democratic principles in local elections, and to eliminate it for the sake of what the Minister himself indicates is a temporary uniformity of no particular merit in that he does not propose to exercise, if I understand him correctly, the right, to gerrymander, which this amendment would give him. I consider the amendment in the law, which he proposes, is going far beyond the needs of the situation as he accurately describes it, and is objectionable and undesirable. I hope the Minister will be persuaded by what we have said to review his position in this matter.

The democratic principle of representation in relation to population is an important one. It was written by the Party at present in office into our Constitution in firm and specific terms and like many things in that Constitution it has stood the test of time well and the test of the adjudication of our courts. When, as I mentioned last day, the politicians of more than one Party sought to subvert this principle in 1961 by moving away from it and giving additional representation to certain parts of the country on the grounds it had nothing to do with democracy, the Constitution stood firm when tested in our courts and that attempt, which was not simply that of one particular political Party, but people from a number of Parties, was nipped in the bud.

We have not got any such safeguard here. If the Minister chooses to exercise his powers in an arbitrary manner in relation to the division of Dublin, and, of course, the size of Dublin offers far more scope for that than any of the other local electoral areas which the 1941 Act also freed from any requirement in regard to population, if the Minister chooses to gerrymander Dublin in that way he would be free to do so under this measure. While he might be criticised for it on broader grounds it could not be held he was acting illegally. We have had enough experience in other parts of this country of this process not to open the way to it here. At a time when in Northern Ireland the whole system of local elections is being reformed or where there are proposals to reform it, to eliminate the abuses which have been such a blot on the local electoral arrangements in that part of the country, for us to remove a safeguard and to open up the way for this or some future Government to gerrymander any Dublin electoral areas is something which we should not do.

No suggestion has been made that this is the only way you can amend the Bill to achieve the aim the Minister desires. It is a gratuitous and totally unnecessary addition to the amendment that is required, the amendment to eliminate the requirements having regard to rateable valuation. The amendment I put down would confine the change in the law to that which the Minister in his speech, and in the explanatory memorandum, says is what he intends to achieve. The amendment in the law in the form he has it is one which, quite necessarily, extends far beyond what is necessary to achieve his own objective, as stated, and what is desirable in the interests of the operation of democracy in this country at local electoral level.

I have not cast at any stage in my remarks, as the Minister seemed to suggest, any reflection on the Government or suggested that they or the Minister are particularly likely to abuse the power given to them here but I have suggested that all politicians and all political Parties are tempted, when they are entitled to act in such a manner within the law, so to act as to secure the advantage of their particular political interest. It is the proper duty of the Legislature to guard against that. It is our duty as legislators to protect ourselves against ourselves because we know the pressures we can be under in these matters.

We have the recent example of the extent to which many people in both Houses of the Oireachtas are uncommitted to the democratic principle and were prepared in 1961 to re-arrange the electoral system of this country contrary to the Constitution to favour some areas against other areas not in the interest of a particular political Party but in the interest of a general regional interest. Knowing that that is something which is liable to be done, knowing that an attempt was made to do it for which more than one Party were responsible it would be most unwise of us to give such power which could be a temptation to this or any future Government.

Senator Sheehy Skeffington put it to the Minister that while he himself might be entirely honourable in this matter that some future Minister for Local Government—and he instanced the remote possibility of myself—might be tempted to gerrymander. While I can offer the House an assurance on my own behalf I cannot do so on behalf of every future Minister for Local Government of any Party.

The Minister attempted to suggest that, in fact, it was impossible to gerrymander Dublin and that no Party had the information necessary for this purpose. I simply do not accept this. He knows as well as I do, and a good deal better with much longer experience in this field than I have, that in every election in this country the political Parties in watching the scrutiny of the votes before counting as they are emptied from each box, make a note of the number of votes which each Party secures in that area.

Mr. K. Boland

Oh, no.

Mr. Garret FitzGerald

The Parties watch the boxes and make a note of the number of votes which each Party is securing from that area and each Party has a record—certainly in some constituencies——

Mr. K. Boland

Certainly not in Dublin.

Mr. Garret FitzGerald

Certainly in Dublin because I watched this process at the last general election and compared notes with the Fianna Fáil representative, compared his figures with those of another Party in the particular constituency.

Tomás Ó Maoláin

Many of the figures were wishful thinking.

Mr. Garret FitzGerald

So accurate was the process that I was in a position to predict the result of Dublin within about 2,000 votes at 12 o'clock, two and a half hours before the counting started because the different Parties had agreed figures for the result based on the scrutiny of the votes at that point and in no constituency was the forecast of the Parties different by more than 1,000 votes and in no constituency was the result different from the predictions by more than 1,000 or 1,500 votes. This scrutiny is carried out not only globally for the constituency but in each section of the constituency so that the figures are reasonably accurate. They are not 100 per cent reliable because not every vote can be seen as it passes through but a picture that is substantially reliable emerges which shows from each polling station precisely the pattern of relative support for the different Parties. This is the practice of all Parties. Such figures are available to both Parties in each of the constituencies. We all know where our support lies and where our support does not lie and from the friendly conversations that ensue on these occasions it is quite clear that there is not much disagreement on the fact of where the support lies.

This being the case to suggest it is impossible to gerrymander in Dublin is nonsense. The figures are there for each Party and they could quite easily, by redistributing the polling stations between the electoral districts, secure different results. It is the same process, as is in fact, operated in parts of Northern Ireland. This is a fact. The Minister in suggesting this is not possible is being more than naive. With his experience of elections the Minister knows that this data is available.

Mr. K. Boland

It is not; not in Dublin.

Mr. Garret FitzGerald

People of both Parties in a most friendly and co-operative manner showed me their figures after watching the count. There is no question about that.

That being the case, gerrymandering is possible, and it is most important that we should make it legally impossible to operate, and as there is no reason whatever for legalising it as is proposed in the Minister's Bill, I think the House should reject this, and I appeal to the Minister and to the members of his Party to reject it. This is not a Party issue. It happens that the Government are in power at the present time, but other Governments could be in power at other times, and it is important that no Government should have the power to act in this way and to frustrate the democratic principle which we have maintained successfully. There have been in the redistribution of constituencies criticism at times, and it may be that political considerations have entered into some of these redistributions at the margins, but, owing to the fact that at least the ratio of electorate to seats is pretty rigidly controlled under the Constitution and as enforced by the courts, a severe limit is imposed on the exercise of ingenuity in regard to securing disproportionate representation for a particular Party. All that is practicable under the present system is a variation of boundaries, and while in areas where there are clearcut differences politically, as in parts of Northern Ireland, the use of boundaries can do a lot. In this part of the country the amount of damage that can be done by fiddling with boundaries is by no means as great, and if we can at least ensure that whatever may be done about boundaries, at least the ratio of electorate to seats is maintained and keep that as an integral part of our law, I think we would be doing something worthwhile to safeguard democracy here, and I would appeal to the Minister to reconsider his decision. I hope he has reconsidered it. I hope my remarks are a waste of time and that I am speaking to the converted. I will certainly be very concerned if he should persist in a course of action which he has failed to defend on any rational grounds whatever except this absurd one that he wants to harmonise the law in all parts of the country—a purely theoretical concept which does not offer any justification for the course of action he has pursued. If the Minister insists on this amendment it can only occasion grave suspicion as to his motives because no adequate reason is given for it. If he had some defence, if he were able to say that my amendment would in some way frustrate the result he wants to achieve, if some such case were made, well and good, but no such case has been made. No defence has been made for the amending of the law he has put forward and which goes far beyond what the explanatory memorandum suggested was the purpose of the amendment. We should stand firm on this and should not allow the intrusion of any non-democratic approach into the local electoral system when we have secured through the Courts and the Constitution the complete safeguard of this democratic principle in the Dáil elections.

Dr. Sheehy Skeffington

I should like to second this amendment. I supported Senator Garret FitzGerald on Second Stage and I think he has made an unanswerable case for the acceptance of the amendment. I see it as a general principle that we should never in the Oireachtas give power to a Minister over and above what the situation requires. I feel we should be very chary of giving excessive powers to any Minister and in particular in the situation where no case is made for the necessity for those powers and where, in fact, the Minister promises that he will never use this power.

It has been said by Senator FitzGerald that the aim ought to be— and I share his view on this—to have the ratio of local representatives on Dublin Corporation to population in each area as uniform as possible. This is covered, of course, by the phrase that in drawing the areas regard will be had to the population. The second paragraph of the explanatory memorandum issued by the Minister in relation to this Bill reads as follows:

The division of Dublin into electoral areas is at present governed by section 3 of the Local Government (Dublin) Act, 1945, which gives the Minister power to divide the city into not less than five electoral areas and to assign to each area the number of members of the City Council to be elected therefor.

The next sentence is the crucial one: "In assigning the number of members to be elected for the areas the Minister is required to have regard to the populations and rateable valuations of the areas." The Bill as it now stands asks us to remove this double requirement by deleting subsection 5 of section 3 of the 1945 Act. I draw the attention of the House to the fact that in this subsection, which we are asked to delete in its entirety, the Minister is required to have regard to two things—(a) populations and (b) rateable valuations.

I proceed then to paragraph 4 of the Minister's own explanatory memorandum and I note that he says: "Paragraph (b) of section 1 provides for the deletion of the requirement on the Minister to have regard to population and rateable valuation in assigning the number of members of the city council to be elected for each area." Again, two things are being done away with— the need to have regard to the population, and the need to have regard to the rateable valuation, but in this paragraph the Minister in his explanatory memorandum goes on to defend only one of these, the deletion of the requirement to have regard to valuation, because the next sentence of this memorandum reads: "This also will bring the position in Dublin into line with that in the other local authority areas. The requirement to have regard to rateable valuation has given rise to considerable criticism." He goes on then to give examples of this requirement leading to serious injustice.

I draw the attention of the House to the fact that we are asked to delete two requirements from the original Act, but the only requirement against which the Minister in his memorandum argues is the requirement to have regard to valuation. No case at all is made here against the requirement that he shall have regard to the population when he draws up new areas, but he promises that he always intends to have regard to population, and he promises this for all his successors also.

Mr. Garret FitzGerald

——of all Parties.

Dr. Sheehy Skeffington

Of all Parties. He tells us that he needs to be able not to have regard to population, but he assures us that he and all his successors of all Parties will always have regard to it. The only effect of Senator FitzGerald's amendment would be to permit him to wipe out the necessity to have regard to the valuation in the area, but he would maintain the requirement to have regard to population which he says, in fact, he is going to do and which he assures us furthermore, overconfidently perhaps, all his successors of all Parties will also do.

I think he made the case, both verbally here and in his memorandum, against the valuation requirement extremely well. It is unanswerable, and we must and do agree to wipe out this requirement. But he made no case at all in the explanatory memorandum against the necessity to have regard to the population, and the only case he made here was that the population in the area might contain, for instance, a large institution such as Grangegorman in which a number of the patients are not voters and, therefore, to take literally "to have regard to the population", to take it absolutely in a mathematical sense, might provoke an injustice. He added that in other areas there might be a large proportion of children and, therefore, if you based yourself solely on population there might be a further injustice there.

I should like to answer this second point first, and to say that personally I would not regard it as being unjust to give a vote or to regard the children in a housing area as being important and essential members of the population to be taken into account of when it is decided how many members shall represent the area, because I think the father and mother of a family have a very strong appreciation of what the local authority administration means to them by very reason of the fact that they have a family perhaps of five or six or more children.

As to the question of an institution such as Grangegorman this is really, as far as Dublin goes, an unique situation, but, in fact, only covers perhaps a couple of thousand people, and can be met by the very vagueness of the present requirements that the Minister "shall have regard to the population". There is no requirement on him to have a mathematically exact ratio. He must have regard to them. If in an area there are a number of people who through no fault of their own are debarred from voting he can have regard to that fact. The phrase "have regard to" would, in other words, cover the only situation which would give rise to something like the case being made by the Minister verbally here to the Seanad against the need to have regard to the population. I would contend that this falls to the ground because he is not required to be mathematically exact, but merely to have regard to the population.

If on the other hand we say to him "by failing to pass this amendment that there is no need for you to have regard to population when you are drawing the areas we are opening the door to future abuse", I would like to say this, that I am making no accusation here against the Minister or the Government but I would contend that if we were to cease to put this requirement upon the Minister when he is drawing up the electoral areas to elect members of Dublin Corporation we would be opening the door to abuse. It might well be that it would never be abused, but I feel that we would be wrong in failing to pass this amendment because we would be giving him a power which he assures us he will never use and does not need. Therefore, it seems to me that he ought to accept the amendment.

Mr. P. O'Reilly

(Longford): Undoubtedly there are strong arguments which can be made for this amendment. I was listening carefully to the case made by Senator Sheehy Skeffington, and it has impressed me. But I thought of another approach. I think it would be wrong to be too stereotyped in legislation of this sort. Because of that fact we had such difficulties in our legislation in regard to parliamentary constituencies. It can be argued by the Minister that power may not be used, and suggested that it is not necessary, and it is, therefore, argued by Senator Sheehy Skeffington and Senator FitzGerald that it should not be in the Bill. However, in the long run it is not a question of what the Minister thinks now. It is not what Senator FitzGerald thinks now or what Senator Sheehy Skeffington thinks now. What will a court hold ten years from now, 20 years from now if matters affected by this Bill are being considered? That is the issue.

Therefore, I do not think it is wise in issues like this to have inflexibility. When the Article of the Constitution which makes provision for demarcation of areas was being framed by Dáil Éireann before being put to the people, it was the opinion of the promoters of that Article and it was also the opinion of the majority of the Members of the Oireachtas at that time, that the Article meant a particular thing and the operative words would appear to have been "as far as is practically possible". What the promoters of the Constitution had in mind, what the vast majority of the Members of the Oireachtas—it was not confined to any one Party—had in mind at that time was, I am satisfied, that it was not to be a matter of exactitude but that there had to be a practical approach: that rural areas would have a relatively better representation than urban areas like, say, Dublin city. A day came when certain people said, rightly or wrongly——

Mr. Rooney

Wrongly.

Mr. P. O'Reilly

(Longford): I shall not pass judgment on it. It is, however, relevant to the debate. The issue came before the courts but it is not within my province or within the competence of the House to criticise decisions of the courts. However, I am entitled to draw a comparison between what the court held in fact on that issue and what I think the Oireachtas had in mind in drafting that Article. I think the view of the Oireachtas at the time the Article was being promoted was not the view which the court held. Though I agree there may be something in the amendment, I retain the view that there should be, as far as possible, flexibility although I subscribe to the belief that the Minister cannot promise the goodwill of himself and his successors during the next 100 years, if the Act should remain unamended during that period, and I doubt it very much.

Since the Bill deals with people actively in public life, if ever there is a suggestion that something is being done wrongly which impinges on the people so actively in public life, those people are well able to speak for themselves, like members of Dublin City Council and I do not think there is any great danger as foreseen by Senator Sheehy Skeffington.

Mr. Murphy

I should like to support the amendment. I agree with Senator O'Reilly that there is a lot of merit in it but I do not agree with him that it is wrong to go into too much detail. In fact, this amendment would not require too much detail. It would simply require the Minister to have regard to the population of each area in allocating the number of seats to that area. This may seem far fetched but if we do not put in this what in effect we are doing is opening the door to gerrymandering. We all condemn the gerrymandering that occurs across the Border in regard to local elections. I should feel very ashamed to go to Derry if we in this House defeat or reject an amendment like this.

The people in Northern Ireland probably think it is a very good thing to discriminate against certain people because of their religion. They sincerely believe in their right to do it. They believe it is the right thing. Some Members of Parliament here some years ago believed it was right and proper to lay special weight to Dáil representation in regard to rural areas. They thought it was the right and proper thing but when tested it was found to be contrary to the Constitution. I can imagine that people in Fianna Fáil, in Fine Gael or in the Labour Party might in the future, holding a position of power, regard themselves as justified, as doing the right and proper thing, to lay special weight on areas where it would favour their own Party.

It is childish for the Minister, for any Minister, to guarantee that he will not do it or that his successors in office in the future will not do it. All Ministers are under pressure from their political Party. The Minister knows that as well as anybody else. He would be under pressure from people in Dublin city, in drawing up the various areas, to pay special regard to an area in such a way that it would favour that Party only. This is life. We all know these pressures are there, that they will be brought to bear on any Minister no matter what the Party.

We suggest that the Minister should be safeguarded and that his successors should be safeguarded from such pressures. Senator O'Reilly may think that unnecessary but it is prudent to have such a provision in a Bill such as this.

Mr. Rooney

I should like to support this amendment also. We have agreed here on the principle of one man, one vote. The Minister now is in the process of putting legislation on the Statute Book and in doing so he should take good care to ensure that it is a democratic piece of legislation, that it is fair to all citizens and to the population in general. If he does not agree to the proposal here, it means he is not agreeable to put on the Statute Book now legislation which could not in future be questioned as being unfair or prejudiced.

This was decided before because in a democracy the fairest system of voting is equal representation for all the people. On the question of population let us come closer to the facts. The Minister wants discretion in relation to drawing the line and selecting the population. We know that in this city the population in some areas is much denser than in others. We know also that in one area where there might be 10,000 electors there might be a population of 25,000 persons and in another area where there are 10,000 electors there might be only 17,000 persons. That is where the population density of areas must be taken into consideration when the Minister is considering this matter.

If at the back of his mind he intends to pay attention only to the number of electors on the register rather than the latest population figures available he should say so fairly and squarely. The Minister may say that the census of population has not been taken in recent times and that the census which was last taken is now somewhat out of date because of population movement from Dublin city to various housing areas and from districts in which those people were previously resident.

The Minister must follow this line to ensure that there will be equal representation for all the people. Senator O'Reilly talked about flexibility and practicability. "Flexibility" is a word that is associated with gerrymandering. It is the very thing that gives an opportunity to the Minister, or his successors or any political Party, to take advantage of this arrangement if it goes on the Statute Book. The Minister knows that it is quite possible to do a certain amount of gerrymandering in this city.

He mentioned that he had a good organisation but that they were not good enough to advise him regarding gerrymandering or regarding the boundary lines in the city. As Senator FitzGerald mentioned, the election workers of the various political Parties are well able to give fairly accurate pictures and patterns of the political outlook of the various sections of the population in the various corporation districts.

I think this proposal would be very unfair, for instance, in Ballyfermot, where the Minister has an interest, he being elected from that area for Dublin County. That is an area where there is a dense population. The situation there is that if the Minister takes advantage of the discretion he desires here he can ensure that the representation for Ballyfermot will be related more to the number of electors than to the number of persons resident in Ballyfermot. This applies to other areas also. In that way the Minister has discretion to do a certain amount of innocent gerrymandering if he wishes. For that reason the Minister, now about to put something on the Statute Book, should refrain from writing into the law something that we would deplore and that all people looking at it in a fair manner would deplore.

The Minister said that he was doing only what he had done outside Dublin city under a previous measure. The fact that it was done outside Dublin city under a previous Act does not mean that, now that it has been pointed out to him so clearly, he should follow the line set when drawing up boundaries and when regulations governing them were being decided. We will not argue at this stage that that arrangement was wrong in order to argue that this one is right. We should not do in Dublin city what we have already done outside if it seems now that we can do a better job in the city by adopting the amendment put forward for the Minister's acceptance.

Minister for Local Government (Mr. K. Boland)

As Senator Garret FitzGerald mentioned, this matter was discussed at some length on Second Reading and I have already given my views on it. The powers which are being conferred by the Bill on the Minister in relation to the division of Dublin city into electoral areas are the same as those conferred under previous enactments in relation to all other local authority areas. This arrangement was not questioned when previous Bills dealing with it were before this House—even as recently as 1963 when the Minister was authorised to divide the other Boroughs—Cork, Limerick, Waterford Dún Laoghaire and Galway city—on his own initiative. It is anomalous now to seek to put Dublin city on a different basis to all other local authority areas.

Mr. Rooney

On a modern basis.

Mr. K. Boland

The basis of our own approach is that specific factors to be taken into account in determining electoral areas are not written into the statute but it is left to the Minister in each case to decide the fairest practicable division.

Dr. Sheehy Skeffington

What about the Minister's successors?

Mr. K. Boland

I am satisfied that the division I intend to make in Dublin when published will be accepted as a fair one. The 1945 Act requires every dividing Order to be laid before each House of the Oireachtas and it empowers each House to annual the Order if they consider it advisable. Experience has shown in a number of cases that difficulties arise which are unforeseen when legislation is being prepared, and can arise when specific requirements such as it is suggested should be written in here are written into the Statute binding the discretion of the Minister in carrying out administrative action. In the ultimate what this proposal would do is to subordinate the Legislature and the Minister to the courts.

Mr. Garret FitzGerald

To the law.

Mr. K. Boland

If you enact that in the law.

Mr. Garret FitzGerald

I should hope so.

Mr. K. Boland

But Senator Sheehy Skeffington describes this as a vague requirement; that it requires the Minister to have regard only to population in a vague way. But this will not be interpreted by the Oireachtas and the whole purpose here seems to be to take the interpretation of it out of the hands of the Oireachtas. This will be interpreted by the courts, not by the Oireachtas, and we have had experience of the manner in which words were interpreted before. Senator FitzGerald looks upon what resulted as a desirable experience. Senator O'Reilly (Longford) takes my view that it was a most unfortunate and bitter experience for people in many parts of the country.

Mr. Garret FitzGerald

Democracy; they do not like it.

Mr. K. Boland

They do like it, and democracy means government by the elected representatives of the people.

Mr. Garret FitzGerald

The same kind of democracy is in South Africa where some people have more votes than others.

Mr. K. Boland

As I pointed out last week, if this amendment were accepted, I would be obliged by law to work on the last published census returns for the wards here in Dublin, and these are now over five years out of date. The new census will not be available before April. Therefore, this amendment would prevent me from making a fair division of the electoral areas in Dublin city. It would require me to base a revision on the census figures available, which are more than five years out of date. Therefore, I would be prevented from doing what I want to do, that is, to adhere to the principle of one man, one vote. The revision I would be required to make, as a result of this amendment, would not give equality of representation with anything approaching the accuracy which will flow from this Bill, as introduced here.

In addition to that, there would be many distortions caused by the presence of large institutions in particular areas, or larger than normal proportions of children in certain suburbs. I pointed out on Second Reading that this amendment would require me, in arranging electoral areas, to take into consideration every newborn child. I referred also to the fact that I would be required to take into account the numbers of patients, for instance, in Grangegorman Mental Hospital. It is all right for Senator Sheehy Skeffington to describe this as a vague requirement but, unfortunately, the experience is that it would be anything but vague, if challenged. Senator Sheehy Skeffington thinks it quite a defensible idea that children in housing areas should be an important consideration in deciding the number of representatives for the area but my opinion is that this would defeat the idea of one man, one vote. It would also defeat the principle of having an age limit for the franchise by giving children of all ages votes by proxy.

I agree, in regard to the provision in the Constitution, the courts have, in fact, interpreted the words in the Constitution in this way. They have decided that people in an area where there is a high number of children, irrespective of whether or not they themselves are parents or have families, must have voting power greater than other people of voting age. That is the effect of the decision made by the High Court.

Mr. Garret FitzGerald

It is the effect of the use of the word "population" in the Constitution.

Mr. K. Boland

That was the effect of an individual deciding to take away this decision from the Oireachtas and have it decided by the judiciary. I should like to assure the Seanad that I intended no discourtesy to the Seanad last week when I asked them to give me all Stages of the Bill. This had been readily agreed by the Dáil. In fact, I have been accused in the Dáil of putting the Opposition Parties in a difficult position by withholding from them details of the proposed division of Dublin with the corporation elections only four months away. I was urged by Deputy Sweetman and his colleagues and on their urging I gave a promise that if I could get a quick passage of the Bill through the two Houses of the Oireachtas, I would be in a position to issue the Order on the 28th February. Of course, that promise no longer applies as a result of the delay imposed by this House. I want the record to show that any inconvenience caused to the Fine Gael Party in organising themselves for the election by not being aware of the new electoral areas is entirely due to their colleagues in this House.

Dr. Sheehy Skeffington

One week.

Mr. K. Boland

The Dáil have already agreed unanimously to the proposal that henceforward the electoral areas in Dublin city shall be decided in the same way as other local authorities. I think it is no disrespect to the Seanad to say that, in this regard, the Dáil is the more experienced body. There are 12 Deputies in the Dáil— I think most of them were present when this Bill was being discussed— who are themselves members of Dublin Corporation, who know the problems involved, and there are many more who are members of other local authorities. To the best of my knowledge, there is one Senator only who is a member of Dublin Corporation and he was coopted. It seems to me that certain Members of the Seanad, most of whom have no personal experience of contesting elections, are determined to take this matter out of the hands of the public representatives and arrange, by circumscribing the Minister as much as possible, that the final decision can be made at the behest of any crank, by a member of the judiciary who, because of his position, has less knowledge of the important practical considerations involved than a person in virtually any other occupation and who will, naturally, consider the absolute meaning of words without any reference to realities, such as the one I referred to here—the practical existence of a division in Dublin city in the form of the River Liffey which, as everybody, with any knowledge of Dublin city, knows is, in fact, a real and important practical consideration.

I have noticed that a small number of Senators seem to be engaged in a consistent campaign to take more and more authority from the Legislature and the Government, which is the duly constituted executive of the people and answerable to the people, and to hand it over to the judiciary, who are not elected. I want to suggest to the Seanad that this campaign should be resisted, that it is fundamental to democracy that the representatives of the people should be empowered to make decisions. If every decision is to be subject to the veto of the judiciary, then democracy, in my opinion, will become ineffective. It is significant that Senator FitzGerald, who is the main protagonist in this effort to ensure that an arrangement of the electoral areas in Dublin city, which might be accepted and which, I think, will be accepted as fair and equitable by all or almost all of the elected representatives, could be vetoed by a single member of the judiciary—regards as entirely admirable the decision which required, for instance for Dáil elections, that the County of Leitrim had to be cut in two; that portions of Meath and Westmeath had to be added on to Kildare, portions of Waterford to South Tipperary, part of Wexford to Carlow-Kilkenny, part of Roscommon to Mayo and part of Louth to County Monaghan. Senator FitzGerald regards that kind of arrangement as an admirable one. I think few people of experience in any political Party would agree with him. The fact is that the people who have been pushed around in this way look on themselves as having been virtually disfranchised as a result. Those people have been so inconvenienced merely because one individual, with no experience in what was involved, took a different view of the meaning of the word "practicable" in this context to that which, as Senator O'Reilly said, has always been held by the Members of the Oireachtas. They, I think, are best qualified by their experience to judge. Senator Murphy, in speaking here, said we all thought at that time that it was right to allocate Dáil seats in a certain way.

Mr. Murphy

I did not say that.

Mr. K. Boland

I understood Senator Murphy to say that.

Mr. Murphy

I said that many sincere people thought it was right to do it that way. The Constitution thought differently.

Mr. K. Boland

The fact was that Members of the Oireachtas, in general, thought that that was a fair way to do it, that it was unreasonable to take portions of counties and put them in with other administrative areas, with which they had no contact and no common interest but an individual interpreted the words of the Constitution in a different way. The fact was that this view was imposed on the Oireachtas.

The division, as I pointed out, of the other boroughs and other local authority areas since 1941 has been clearly done on the basis of one man, one vote, and there have been no complaints that I have ever heard on this score. As stated it is my intention to adopt the same approach in the case of Dublin city. If I do not do that and if, as Senator FitzGerald said, the Oireachtas does not compel a change, the public will no doubt take note of the position. I oppose this amendment and I ask the Seanad to endorse the decision of the Dáil that Dublin should be on the same basis as the rest of the country.

Dr. Sheehy Skeffington

Arising out of the Minister's reply, might I ask him on what figures will he base himself in allocating the areas?

An Cathaoirleach

Perhaps we could hear Senator FitzGerald before the Minister replies. The debate seems to involve a good deal of repetition. Most of what has been said today was said on Second Stage.

Mr. Garret FitzGerald

The point which Senator Sheehy Skeffington is putting to the Minister is one that was never mentioned on Second Stage. It would be interesting to hear the Minister before I reply.

Mr. K. Boland

It is my opinion that a more realistic and a more accurate allocation of seats in regard to the voting strength in different areas would be based on the register of electors. It is much more realistic than going to the census for 1960, which is what this amendment would require me to do.

Mr. Garret FitzGerald

Everything the Minister said has confirmed my fears in relation to this matter and my determination to oppose him on it. He suggested that there is no problem under any Order made under this Bill, when it is an Act, coming before the two Houses of the Oireachtas, that there would be an opportunity then to question it and to overrule it. This is quite disingenuous. What would happen in practice is that an Order would come before the Oireachtas at a time so short before an election that any attempt to hold it up and propose amendments would be rejected by the Minister on the ground that this would hold up the election. This is what the Minister has said we tried to do on this occasion. He said that Fine Gael were very anxious for an election two years ago and now they were attempting to hold it up. That is not correct.

We are not concerned with this occasion. We are concerned with the basic democratic principle which everything in the Minister's speech showed he would like to subvert. He said that it was the wrong way to do it to put Dublin on a different basis from the rest of the country. We are not seeking that. We are seeking that it be not changed from the present democratic basis to a basis on which there would be no safeguard in regard to Dublin. It is the Minister who is seeking the change. We are not seeking the change.

He said that we prevented him from putting forward his proposals on the 28th February because we held him up here. If the Minister wanted to convince us of his integrity in this matter he might have published his proposals. Now he has suggested that because we have held him up here he has not been able to put forward his proposals in regard to the 28th February. There seems to be a suggestion here that he might hold them up longer. That kind of thing has already been employed in regard to the farming community. Indeed, there has been some suggestion that the Constitution is something which no democracy can in constitutional law have enforced by the courts if in some why contrary to democracy.

The Minister has not any understanding of the Constitution. His attitude and the attitude of other Ministers to it is one of the most disturbing features of the Government. If I needed any further convincing for having joined this Party I would have found it in the attitude of Ministers of the Government who have repeatedly disregarded the Constitution. The Constitution should be upheld by all of us.

Tomás Ó Maoláin

It does me good to hear the Senator speaking about the Constitution in this way in the light of what happened in the past.

Mr. D.J. O'Sullivan

We are always prepared to accept majority rule.

Mr. Garret FitzGerald.

I was ten years old when the Constitution was born. There were many things said during the course of the debate on the Constitution. In some things the Opposition were mistaken in what they said. In other instances the Constitution has turned out far better than was expected by the Opposition or the Government. I am prepared to stand on the Constitution and defend it.

An Cathaoirleach

The Constitution has nothing to do with this Bill.

Mr. Garret FitzGerald

The suggestion is that the promoters of the Constitution had in mind all the time that democracy would not operate. It is disrespectful to the President of this country, who was the author of the Constitution, to suggest that he wished it to operate in such a way that the democratic principle would not operate. I am quite certain that in the course of the debate on the Constitution, whatever may be said about his political career in other respects in the past, he intended to uphold the spirit of the Constitution and he intended that no court of law could interpret it in the way that democracy would not operate.

Tomás Ó Maoláin

It is very interesting to hear the Senator in this respect.

Mr. Garret FitzGerald

There was a very contemptuous reference to the courts and a reference to one individual who could interpret words in such a way.

Mr. D.J. O'Sullivan

The Taoiseach will not like that following on his statement in the Dáil yesterday on court decisions.

Mr. Garret FitzGerald

We have heard too much in this House of attacks on the courts from members of the Government. Again and again they have come in here and they have in various terms and various Bills attacked the whole idea of the constitutional system and the whole idea of the rôle of the courts in this respect.

The Minister said he is obliged under the Act as at present in force and unless his amendment is passed, unless this Bill is passed, to work on a census that is five years out of date. I am not aware of any such obligation. There is no reference to the census anywhere in any of the previous Bills here. He is obliged to have regard to the population insofar as he has any information in regard to it. If he is aware of population changes that have taken place since the last election he is obliged to ignore the census and make the best estimate he can for the purpose of his distribution of the present population based on the up-to-date information available through the figures of the electorate. Nobody is requiring him to have regard to an out-of-date census.

This talk does not come well from a Government who in 1961 rushed through a Bill a couple of weeks before the census results would be published so that it could work on the out-of-date figures for 1956. The Government adopted those changes three weeks before the census was out. They now walk into this House and tell us they do not want to be obliged to use a census five year out of date, obliged by an Act which makes no reference to the census, if the Minister has more up-to-date information about the population. He had the nerve to say that this would prevent him from adhering to the principle of one man, one vote and that he would then not be able to achieve anything like the accuracy he could achieve under this Bill—the accuracy in regard to population which he says he has no information on.

The Minister also said that the Dáil had agreed to this measure and that they were more experienced. We had experience of this before. We know that in relation to the proposal to change our national electoral system for the Dáil elections to the direct electoral system as employed in Britain in relation to that matter the Dáil, with all their experience, were, in fact, out of tune with the thinking of the country, and it was the Seanad who represented accurately on that occasion the public attitude on that matter.

Senators

Hear, hear.

Mr. Garret FitzGerald

We do not need to be told that the Dáil know more about the mood of the people in electoral matters than the Seanad do.

Tomás Ó Maoláin

Too many amateurs spoil the broth.

Mr. D.J. O'Sullivan

The referendum resolved the broth on that occasion.

Tomás Ó Maoláin

The referendum was carried in the same way and with the same tactics as they opposed the Constitution.

Mr. Garret FitzGerald

The Minister referred to a consistent campaign in this House to take more and more authority from the Legislature and the Government and that he proposed to resist this campaign. The campaign is to ensure that the principles of the Constitution are preserved and that the Constitution will not be subverted by attempts which have been made to introduce Legislation which is contrary to the Constitution. In that campaign we know on which side those concerned with democracy stand.

I do not think there is any use wasting any further time in trying to persuade the Minister on the matter because the whole tenor of his speech was the attempt to gerrymander in 1961 not for Party political purposes but equally perniciously in favour of one section of the community against another so that the majority should get into the position of greater power visà-vis the minority. He defended that and Senator O'Reilly in his more thoughtful and considered speech defended that approach and it is quite clear the Minister simply does not believe in one man, one vote. He believes that those who attempted to subvert the Constitution in 1959 to 1961 were correct and he would like to have an opportunity of doing this kind of work in the future. We reject that.

Amendment put.

The Committee divided: Tá, 26; Níl, 16.

Tá

• Ahern, Liam.
• Boland, Gerald.
• Browne, Seán.
• Cole, John C.
• Connolly O'Brien, Nora.
• Eachthéirn, Cáit Uí.
• Egan, Kieran P.
• Farrell, Joseph.
• Fitzsimons, Patrick.
• Flanagan, Thomas P.
• Honan, Dermot P.
• Killilea, Mark.
• Lenehan, Joseph R.
• McGlinchey, Bernard.
• McGowan, Patrick.
• Martin, James J.
• Nash, John Joseph.
• Ó Donnabháin, Seán.
• O'Kennedy, Michael.
• Ó Maoláin, Tomás.
• O'Reilly, Patrick (Longford).
• Ryan, Eoin.
• Ryan, James.
• Ryan, William.
• Sheldon, William A.W.
• Teehan, Patrick J.

Níl

• Carton, Victor.
• Conlan, John F.
• Crowley, Patrick.
• Dooge, James C.I.
• FitzGerald, Garret M.D.
• McDonald, Charles.
• McHugh, Vincent.
• Malone, Patrick.
• Mannion, John.
• Murphy, Dominick F.
• O'Reilly, Patrick (Cavan).
• O'Sullivan, Denis J.
• Prendergast, Micheál A.
• Rooney, Éamon.
• Sheehy Skeffington, Owen L.
• Stanford, William B.

Tellers: Tá, Senators Browne and Farrell; Níl, Senators Conlan and McDonald.

Amendment declared lost.

Dr. Sheehy Skeffington

On a point of order, I should like to refer the House to our Rulings and Precedents, page 34, arising out of the Minister's reference to a judicial decision. Our Rulings and Precedents says: "Judiciary should not be attacked, but general criticism of attitude of District Justices, where no names were mentioned, was ruled to be in order. When decision of a judge is brought into debate Senators should be very careful what they say about it, and rule has been that judgments of a Court are not open to discussion in House." I feel that the Minister might perhaps be given an opportunity of explaining or modifying somewhat to the Seanad what to some of us appeared to be a rather unduly contemptuous dismissal of what he called "the decision of one man" sitting in a judical capacity in relation to a point of Constitutional importance, where I think our Rulings would stipulate that it would not be in order at any rate for a Senator to question this Ruling, and I rather doubt if it was in order for the Minister.

Mr. K. Boland

I did not question any judge's ruling. I merely referred to the fact that a particular judge interpreted this particular requirement in the Constitution in a different way to the way in which the Legislature interpreted it.

Dr. Sheehy Skeffington

The Minister's phrase was "just one man". I feel that——

Tomás Ó Maoláin

He was just one man.

Dr. Sheehy Skeffington

A judge sitting in a judicial capacity is not just one man. He speaks for all of us. He has judicial power and it is his duty as well as his right to interpret the Constitution. He is not merely one man.

Mr. Garret FitzGerald

The Minister referred to a decision of an individual trying to take away the power of decision from the Oireachtas.

Mr. K. Boland

That is not what I said. I did not query the accuracy of his legal interpretation. I merely pointed out that it was different to the interpretation of the Members of the Legislature, different to the manner in which they had interpreted it on a number of previous occasions and in which they had interpreted it in that year.

Mr. Garret FitzGerald

I take it that that is the nearest thing to an apology that we are ever likely to get from the Minister.

Mr. K. Boland

If the Senator wishes to take it as an apology he is welcome.

Dr. Sheehy Skeffington

Does the Chair consider that there remains a point of order to be ruled on?

Mr. Rooney

Is there not a question of contempt?

An Leas-Chathaoirleach

That is not for the occupant of this Chair to decide.

Tomás Ó Maoláin

We are turning into a debating society, legal quibbles.

Bill reported without amendment and received for final consideration.

Question proposed: "That the Bill do now pass."

Mr. Garret FitzGerald

I am strongly tempted, in view of the Minister's attitude, to propose that the Bill be rejected in toto. However, since there is something in the Bill which apparently is desirable, I shall not do so, much as we regret the Minister's attitude to the House on this Bill.

Question put and agreed to.