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Seanad Éireann díospóireacht -
Tuesday, 30 Jul 1968

Vol. 65 No. 21

An Bille um an Tríú Leasú ar an mBunreacht, 1968: Céim na Tuarascála. Third Amendment of the Constitution Bill, 1968: Report Stage.

I move amendment No. 1:

I leathanach 7, i ndiaidh líne 33, na Codanna seo a leanas a chur isteach:—

"CUID III

3. 1º Bunóchar Coimisiún Dáil-cheanntar ó am go ham, uair amháin ar a laighead insan dá bhliadhain déag.

2º Mórsheisear comhaltaí a ceapfar ag Dáil Éireann a bheas i gCoimisiún Dáil-cheanntar: ceapfar comhalta amháin díobh (agus is é a bheas ina Chathaoirleach ar an gCoimisiún) as breitheamhnaibh na Cúirte Uachtaraighe agus na hÁrd-Chúirte ar n-a ainmniú ag an bPrímh-Bhreitheamh, ceapfar triúr as comhaltaíbh Dháil Éireann ar n-a n-ainmniú ag an Taoiseach agus ceapfar triúr as na comhaltaíbh sin de Dháil Éireann a cinntear do réir dlighidh a bheith i bhfreasabhra, ar n-a n-ainmniú mar foráiltear le dligheadh ag comhaltaíbh a cinntear amhlaidh a bheith i bhfreasabhra.

3º Tig le comhalta ar bith de Choimisiún Dáil-cheanntar éirghe as oifig trí n-a chur sin i n-iúil do Chathaoirleach Dháil Éireann.

4º Tig le Dáil Éireann, ar adhbharaibh is leor léi, comhalta ar bith de Choimisiún Dáil-cheanntar do chur as oifig.

5º Ceathrar is córam do Choimisiún Dáil-cheanntar, agus is dleaghthach do Choimisiún gníomhú d'aindeoin folamhantas ina gcomhaltas.

4. Chomh luath agus is féidir é tar éis Coimisiún Dáil-cheanntar do bhunú, rachaidh an Coimisiún i mbun na ndáil-cheanntar do chinneadh.

5. 1º Déanfaidh Coimisiún Dáil-cheanntar, taobh istigh de thrí mhí ó dháta a mbunuighthe, tuarascbháil do thairgsint do Chathaoirleach Dháil Éireann ina leagfar amach na dáil-cheanntair mar a bheid cinnte ag an gCoimisiún de chomhaontadh a gcomhaltaí uile nó le tromlach dá gcomhaltaíbh, ach más rud é ná tairgfear aon tuarascbháil amhlaidh, toisc nár éirigh leis na comhaltaíbh uile nó le tromlach de na comhaltaibh teacht ar chomhaontadh, déanfaidh Cathaoirleach an Choimisiúin, cheithre mhí ar a dhéidheanaighe tar éis dáta an Choimisiúin do bhunú, tuarascbháil do thairgsint do Chathaoirleach Dháil Éireann ina leagfar amach na dáil-cheanntair mar a bheid cinnte ag Cathaoirleach an Choimisiúin, agus glacfar gurb í tuarascbháil an Choimisiúin an tuarascbháil sin.

2º Ní foláir tuarascbháil an Choimisiúin do bheith fá láimh an Chathaoirligh nó fá láimh chomhalta eile a n-ordóchaidh an Coimisiún dó a lámh do chur léi, agus ní tairgfear aon tuarascbháil mhionluchta.

3º Beidh an Coimisiún ar n-a lán-scor láithreach d'éis tuarascbháil an Choimisiúin do thairgsint.

6. 1º Chomh luath agus is féidir é tar éis do Chathaoirleach Dháil Éireann tuarascbháil an Choimisiúin d'fhagháil, bhéarfaidh sé go leagfar í fá bhrághaid Dháil Éireann.

2º Más rud é go ndéanfaidh Dáil Éireann, taobh istigh de na cheithre lá dhéag is túisce a shuidhfeas Dáil Éireann tar éis an tuarascbháil do leagadh fá n-a brághaid, rún do rith le tromlach dhá dtrian ag leasú na tuarascbhála, beidh an tuarascbháil ar n-a leasú dá réir sin.

3º Láithreach d'éas an lae dheiridh de na cheithre lá dhéag is túisce a shuidhfeas Dáil Éireann tar éis tuarascbháil an Choimisiúin do leagadh fá n-a brághaid, is iad na dáil-cheanntair a bheas leagtha amach insan tuarascbháil, nó, i gcás Dáil Éireann do leasú na tuarascbhála, insan tuarascbháil ar n-a leasú amhlaidh, is dáil-cheanntair, ach ní thiocfaidh atharrú ar bith dá ndéanfar ar na dáil-cheanntraibh i bhfeidhm i rith ré na Dála a bheas ina suidhe i n-alt na huaire.

7. Fá chuimsiú foráiltí an Airteagail seo, féadfar socrú do dhéanaimh le dligheadh i dtaobh ní ar bith a bhaineas le Coimisiúin Dáil-cheanntar nó le dáil-cheanntraibh.

8. Go dtí an lá is túisce a lán-scoirfear Dáil Éireann tar éis an 15mhadh lá d'Aibreán, 1970, nó is túisce a lán-scoirfear í tar éis cibé dáta roimhe sin a cinnfear le rún ar n-a rith ag Dáil Éireann, is iad a bheas i gcomhaltas Dháil Éireann ná ionadóirí do na dáil-cheanntraibh a cinneadh leis an dligheadh a bhí i bhfeidhm an lmhadh lá d'Eanáir, 1968, agus is do réir an dlighidh sin a déanfar gach toghchán do chomhaltas Dháil Éireann, mar aon le líonadh corr-fholamhantas.

9. Fágfar an lár as gach teacs oifigeamhail den Bhunreacht na foráiltí sin romhainn den Airteagal so ó fho-airteagal 3 go dtí an foairteagal so go huile, má ritheann an pobal Bille dá ngairtear "Acht chun an Bunreacht do Leasú" agus a ndéantar An Bille um an gCeathrú Leasú ar an mBunreacht, 1968 a ghairm de.

CUID IV.

3. 1º A constituency Commission shall be established from time to time, but not less frequently than once in every twelve years.

2º A Constituency Commission shall consist of seven members appointed by Dáil Éireann, of whom one (who shall be the Chairman of the Commission) shall be appointed from the judges of the Supreme Court and High Court on the nomination of the Chief Justice, three shall be appointed from the members of Dáil Éireann on the nomination of the Taoiseach and three shall be appointed, from such members of Dáil Éireann as are determined in accordance with law to be in opposition, on nomination provided for by law by members so determined.

3º Any member of a Constituency Commission may resign from office by placing his resignation in the hands of the Chairman of Dáil Éireann.

4º Dáil Éireann may, for reasons which to it seem sufficient, terminate the appointment of any member of a Constituency Commission.

5º The quorum of a Constituency Commission shall be four, and a Commission may act notwithstanding vacancies in their membership.

4. As soon as may be after the establishment of a Constituency Commission, the Commission shall proceed to determine the constituencies.

5. 1º A Constituency Commission shall, within three months of their establishment, present to the Chairman of Dáil Éireann a report setting out the constituencies as determined by the Commission either with the unanimous agreement of their members or by a majority, but if, because of failure to secure unanimous agreement or agreement by a majority, no report is so presented, the Chairman of the Commission shall, not later than four months after the date of the establishment of the Commission, present to the Chairman of Dáil Éireann a report setting out the constituencies as determined by the Chairman of the Commission, and that report shall be taken as the report of the Commission.

2º The Commission's report shall be signed by the Chairman or other member so directed by the Commission, and no minority report shall be presented.

3º Immediately after the Commission's report has been presented, the Commission shall stand dissolved.

6. 1º As soon as may be after the receipt by him of the Commission's report, the Chairman of Dáil Éireann shall cause the report to be laid before Dáil Éireann.

2º If, within the next fourteen days on which Dáil Éireann has sat after the report is laid before it, a resolution amending the report is passed by a two-thirds majority by Dáil Éireann, the report shall be amended accordingly.

3º Immediately after the last of the next fourteen days on which Dáil Éireann has sat after the Commission's report is laid before it, the constituencies set out in the report, or, where the report has been amended by Dáil Éireann, in the report as so amended, shall become and be the constituencies, provided that any alteration in the constituencies shall not take effect during the life of Dáil Éireann then sitting.

7. Subject to the provisions of this Article, any matter whatsoever relating to Constituency Commissions or constituencies may be provided for by law.

8. Until the date of the dissolution of Dáil Éireann occurring next after the 15th day of April, 1970, or occurring next after such earlier date as may be determined by a resolution passed by Dáil Éireann. Dáil Éireann shall be composed of members who represent the constituencies determined by the law in force on the 1st day of January, 1968, and all elections for membership of Dáil Éireann, including the filling of casual vacancies, shall take place in accordance with that law.

9. The foregoing provisions of this Article from sub-article 3 to this sub-article inclusive shall be omitted from every official text of the Constitution if a Bill entitled "An Act to Amend the Constitution" and referred to as the Fourth Amendment of the Constitution Bill, 1968 is passed by the people.

I move:

1. In page 6, after line 33, to add the following new Parts:

"PART III.

3. 1º Bunóchar Coimisiún Dáil-cheanntar ó am go ham, uair amháin ar a laighead insan dá bhliadhain déag.

2º Mórsheisear comhaltaí a ceapfar ag Dáil Éireann a bheas i gCoimisiún Dáil-cheanntar: ceapfar comhalta amháin díobh (agus is é a bheas ina Chathaoirleach ar an gCoimisiún) as breitheamhnaibh na Cúirte Uachtaraighe agus na hÁrd-Chúirte ar n-a ainmniú ag an bPrímhBhreitheamh, ceapfar triúr as comhaltaíbh Dháil Éireann ar n-a n-ainmniú ag an Taoiseach agus ceapfar triúr as na comhaltaíbh sin de Dháil Éireann a cinntear do réir dlighidh a bheith i bhfreasabhra, ar n-a n-ainmniú mar foráiltear le dligheadh ag comhaltaíbh a cinntear amhlaidh a bheith i bhfreasabhra.

3º Tig le comhalta ar bith de Choimisiún Dáil-cheanntar éirghe as oifig trí n-a chur sin i n-iúil do Chathaoirleach Dháil Éireann.

4º Tig le Dáil Éireann, ar adhbharaibh is leor léi, comhalta ar bith de Choimisiún Dáil-cheanntar do chur as oifig.

5º Ceathrar is córam do Choimisiún Dáil-cheanntar, agus is dleaghthach do Choimisiún gníomhú d'aindeoin folamhantas ina gcomhaltas.

4. Chomh luath agus is féidir é tar éis Coimisiún Dáil-cheanntar do bhunú, rachaidh an Coimisiún i mbun na ndáil-cheanntar do chinneadh.

5. 1º Déanfaidh Coimisiún Dáil-cheanntar, taobh istigh de thrí mhí ó dháta a mbunuighthe, tuarascbháil do thairgsint do Chathaoirleach Dháil Éireann ina leagfar amach na dáil-cheanntair mar a bheid cinnte ag an gCoimisiún de chomhaontadh a gcomhaltaí uile nó le tromlach dá gcomhaltaíbh, ach más rud é ná tairgfear aon tuarascbháil amhlaidh, toisc nár éirigh leis na comhaltaíbh uile nó le tromlach de na comhaltaíbh teacht ar chomhaontadh, déanfaidh Cathaoirleach an Choimisiúin, cheithre mhí ar a dhéidheanaighe tar éis dáta an Choimisiúin do bhunú, tuarascbháil do thairgsint do Chathaoirleach Dháil Éireann ina leagfar amach na dáil-cheanntair mar a bheid cinnte ag Cathaoirleach an Choimisiúin, agus glacfar gurb í tuarascbháil an Choimisiúin an tuarascbháil sin.

2º Ní foláir tuarascbháil an Choimisiúin do bheith fá láimh an Chathaoirleach, nó fá láimh chomhalta eile a n-ordóchaidh an Coimisiún dó a lámh do chur léi, agus ní tairgfear aon tuarascbháil mhionluchta.

3º Beidh an Coimisiún ar n-a lanscor láithreach d'éis tuarascbháil an Choimisiúin do thairgsint.

6. 1º Chomh luath agus is féidir é tar éis do Chathaoirleach Dháil Éireann tuarascbháil an Choimisiúin d'fhagháil, bhéarfaidh sé go leagfar í fá bhrághaid Dháil Éireann.

2º Más rud é go ndéanfaidh Dáil Éireann, taobh istigh de na cheithre lá dhéag is túisce a shuidhfeas Dáil Éireann tar éis an tuarascbháil do leagadh fá n-a brághaid, rún do rith le tromlach dhá dtrian ag leasú na tuarascbhála, beidh an tuarascbháil ar n-a leasú dá réir sin.

3º Láithreach d'éis an lae dheiridh de na cheithre lá dhéag is túisce a shuidhfeas Dáil Éireann tar éis tuarascbháil an Choimisiúin do leagadh fá n-a brághaid, is iad na dáil-cheanntair a bheas leagtha amach insan tuarascbháil, nó, i gcás Dáil Éireann do leasú na tuarascbhála, insan tuarascbháil ar n-a leasú amhlaidh, is dáil-cheanntair, ach ní thiocfaidh atharrú ar bith dá ndéanfar ar na dáil-cheanntraibh i bhfeidhm i rith ré na Dála a bheas ina suidhe i n-alt na huaire.

7. Fá chuimsiú foráiltí an Airteagail seo, féadfar socrú do dhéanamh le dligheadh i dtaobh ní ar bith a bhaineas le Coimisiúin Dáil-cheanntar nóle dáil-cheanntraibh.

8. Go dtí an lá is túisce a lán-scoirfear Dáil Éireann tar éis an 15mhadh lá d'Aibreán, 1970, nó is túisce a lán-scoirfear í tar éis cibé dáta roimhe sin a cinnfear le rún ar n-a rith ag Dáil Éireann, is iad a bheas i gcomhaltas Dháil Éireann ná ionadóirí do na dáil-cheanntraibh a cinneadh leis an dligheadh a bhí i bhfeidhm an lmhadh lá d'Eanáir, 1968, agus is do réir an dlighidh sin a déanfar gach toghchán do chomhaltas Dháil Éireann, mar aon le líonadh corrfholamhantas.

9. Fágfar ar lár as gach teacs oifigeamhail den Bhunreacht na foráiltí sin romhainn den Airteagal so ó fho-airteagal 3 go dtí an foairteagal so go huile, má ritheann an pobal Bille dá ngairtear "Acht chun an Bunreacht do Leasú" agus a ndéantar An Bille um an gCeathrú Leasú ar an mBunreacht, 1968 a ghairm de.

PART IV.

3. 1º A Constituency Commission shall be established from time to time, but not less frequently than once in every twelve years.

2º A Constituency Commission shall consist of seven members appointed by Dáil Éireann, of whom one (who shall be the Chairman of the Commission) shall be appointed from the judges of the Supreme Court and High Court on the nomination of the Chief Justice, three shall be appointed from the members of Dáil Éireann on the nomination of the Taoiseach and three shall be appointed, from such members of Dáil Éireann as are determined in accordance with law to be in opposition, on nomination provided for by law by members so determined.

3º Any member of a Constituency Commission may resign from office by placing his resignation in the hands of the Chairman of Dáil Éireann.

4º Dáil Éireann may, for reasons which to it seem sufficient, terminate the appointment of any member of a Constituency Commission.

5º The quorum of a Constituency Commission shall be four, and a Commission may act notwithstanding vacancies in their membership.

4. As soon as may be after the establishment of a Constituency Commission, the Commission shall proceed to determine the constituencies.

5. 1º A Constituency Commission shall, within three months of their establishment, present to the Chairman of Dáil Éireann a report setting out the constituencies as determined by the Commission either with the unanimous agreement of their members or by a majority, but if, because of failure to secure unanimous agreement or agreement by a majority, no report is so presented, the Chairman of the Commission shall, not later than four months after the date of the establishment of the Commission, present to the Chairman of Dáil Éireann a report setting out the constituencies as determined by the Chairman of the Commission, and that report shall be taken as the report of the Commission.

2º The Commission's report shall be signed by the Chairman or other member so directed by the Commission, and no minority report shall be presented.

3º Immediately after the Commission's report has been presented, the Commission shall stand dissolved.

6. 1º As soon as may be after the receipt by him of the Commission's report, the Chairman of Dáil Éireann shall cause the report to be laid before Dáil Éireann.

2º If, within the next fourteen days on which Dáil Éireann has sat after the report is laid before it, a resolution amending the report is passed by a two-thirds majority by Dáil Éireann, the report shall be amended accordingly.

3º Immediately after the last of the next fourteen days on which Dáil Éireann has sat after the Commission's report is laid before it, the constituencies set out in the report, or, where the report has been amended by Dáil Éireann, in the report as so amended, shall become and be the constituencies, provided that any alteration in the constituencies shall not take effect during the life of Dáil Éireann then sitting.

7. Subject to the provisions of this Article, any matter whatsoever relating to Constituency Commissions or constituencies may be provided for by law.

8. Until the date of the dissolution of Dáil Éireann occurring next after the 15th day of April, 1970, or occurring next after such earlier date as may be determined by a resolution passed by Dáil Éireann. Dáil Éireann shall be composed of members who represent the constituencies determined by the law in force on the 1st day of January, 1968, and all elections for membership of Dáil Éireann, including the filling of casual vacancies, shall take place in accordance with that law.

9. The foregoing provisions of this Article from sub-article 3 to this sub-article inclusive shall be omitted from every official text of the Constitution if a Bill entitled "An Act to Amend the Constitution" and referred to as the Fourth Amendment of the Constitution Bill, 1968 is passed by the people.

The purpose of the amendment is to put into the Third Amendment of the Constitution Bill, 1968, which is the Bill which permits deviation from the national average of population when considering constituencies, provisions to enable a Constituency Commission to be established in the event that the Fourth Amendment of the Constitution Bill, 1968, is not passed.

In this amendment we are providing that a Constituency Commission shall be established from time to time, but not less frequently than once in every 12-year period, comprised of a judge of the Supreme Court to be nominated by the Chief Justice, three Members of the Dáil to be nominated by the Taoiseach and three Members of the Dáil to be nominated by law. It makes further provision as to the manner in which the Commission will go about their functions, the compilation of their report, the eventual laying of it before Dáil Éireann and the giving of power to Dáil Éireann to amend the report within a stated period.

In the latter part, in Article 9, it is stated that the foregoing provisions of the Article, from sub-Article 3, shall be omitted from every official text of the Constitution, if the Fourth Amendment of the Constitution Bill, 1968 is passed. The Minister has been talking about being fair to the public and being clear. While we may forecast what the will of the population is, we want to anticipate a decision now by deciding that we will have a Commission in another Bill, but that we will not put the provision in another Bill if the population should choose to pass one Bill and not the other.

If it is right and proper to have a Commission, and if the Government believe it is right and proper to have a Commission to draw constituency boundaries if both Bills are passed, it is equally correct and indeed necessary, or not less necessary, to have a Commission if the Fourth Amendment of the Constitution Bill, the PR Bill, is rejected and the Third Amendment of the Constitution Bill is passed. It is worthy of note that the Committee which reported on the Constitution, an all-Party Committee, held the view that there should be a Commission appointed to delimit constituency boundaries; and though the Minister may make great play of the fact that the idea of a Commission was opposed on the last occasion, it is correct to say that every line and provision of the Third Amendment of the Constitution Bill, 1959, was opposed and that every line and provision of the Third Amendment of the Constitution Bill, 1968, and of the Fourth Amendment of the Constitution Bill, 1968, are also being opposed.

However, in view of the large discretion now being provided in the Third Amendment of the Constitution Bill, and the wide variation, which the Minister chooses to call tolerance, being provided for, it is highly necessary that the work of drawing up constituency boundaries, with this new mechanism and this greater degree of flexibility and greater power for gerrymandering of constituencies, should be done by a Commission which will consist of a judge of the Supreme Court nominated by the Chief Justice, and six Members of Parliament, with the ultimate power resting in Dáil Éireann to determine finally what the constituency boundaries shall be.

The amendment now before the House is substantially the same as the provisions in the Fourth Amendment of the Constitution Bill in relation to the Commission. Because one does not want to clutter up the Constitution with unnecessary material, the device adopted in section 52 of the transitory provisions of the 1937 Constitution is being incorporated here so that in the event of the Fourth Amendment being passed there will not be two Commissions doing exactly the same work and reproduced twice in the official texts of the Constitution afterwards.

First of all, on the statement of Senator O'Quigley that we are proposing in this Bill that there should be a large amount of discretion available to the Oireachtas which would devise constituencies if a Commission were not provided for and if the Fourth Amendment to the Constitution Bill is not passed, I wish to point out, as I have done already, that the proposal we have as to the maximum divergence that should be permitted is very restrictive by comparison with any other democracy we know of. I do not know of any place in which there is a requirement such as exists in our Constitution, as it has been interpreted by the High Court, to try to have exact mathematical parity of population per Deputy in every constituency.

The proposal we have here is for a small amount of divergence from the national average, to be exercised in very clearly defined circumstances. It is much smaller than in any democracy of which we know. It is not a large divergence but a particularly small and restricted one.

On the suggestion that the proposal gives excessive power for gerrymandering to the Minister, I must once again ask the Opposition in which conditions is there more scope for an evil-minded Minister to introduce gerrymandering —if the basic knowledge were available—in the matter of revising constituencies—: in circumstances in which it is laid down that this divergence can only be utilised in order to try to respect county boundaries or in circumstances in which these are held to be irrelevant which is the position that exists at present?

It is clearly laid down in the judgment of the High Court that matters such as administrative boundaries are irrelevant and that the only question to be taken into account in deciding what is practicable is, in fact, the detail in which information with regard to the distribution of population is available in the census report. It is these circumstances that require the detachment from some counties of a part of the population and their addition to other counties—it is there that scope for gerrymandering, if the knowledge is available, arises because it is there that a selection can be made as to the areas to be detached from one county and attached to another. In circumstances where you are required by the Constitution to adhere, as far as possible, to county boundaries, then obviously the scope for gerrymandering must be much less and a revision of constituencies that does not comply with the Constitutional requirements could, of course, be challenged in the courts.

It is quite clear that under what is proposed in this Bill the scope for gerrymandering will in fact be less but in suggesting that there will be that scope available to the Minister, the Senator is, of course, assuming that one of these proposals is going to be passed and one is going to be rejected, which of course is a completely unlikely thing to happen since the Opposition are campaigning against both of the proposals and we are campaigning for both. It seems likely then that either both will be passed or both will be rejected.

I pointed out before that when it was decided, in order to please the Opposition, to separate our proposal for electoral reform into two separate propositions, it became necessary to make a decision as to which of these proposals would contain the provision for a Constituency Commission because it was not possible to put it into both. In making a decision as to which Bill to put the provision for the Constituency Commission into, I think we made the proper decision because what we propose in the Third Amendment Bill is no more than a return to the conditions that existed up to 1959 or the conditions that were believed to exist up to 1959. It is obvious that in a revision of constituencies carried out if that Bill is passed and the other not passed, there will only be minor adjustments necessary in constituencies, whereas if the Fourth Amendment Bill is passed, then there must be a complete recasting of the whole system of Dáil representation. You must start from scratch and establish 144 completely new constituencies. If this knowledge of the voting pattern of the people in different parts of the country, both at past elections and at future elections is available, it is in circumstances where you can start from scratch and divide up the whole country into 144 constituencies that the scope for the exercise of gerrymandering occurs. Therefore I think if the Commission is a safeguard against that type of operation, then it is of more value in the Fourth Amendment Bill than in the Third Amendment but in actual fact it is likely that either both Bills will be passed or neither will be passed.

The amendment proposes to insert in the Schedule to the Third Amendment Bill the provisions of the Fourth Amendment Bill relating to the Constituency Commission, except section 8.2º, and with the addition of a new section 9, providing for the omission of the provisions from every official text of the Constitution if the Fourth Amendment is passed by the people.

As I pointed out last week, I have been legally advised that there is no way in which the proposals for a Constituency Commission can be inserted into both Bills. It is quite clear that it would not be possible simply to duplicate these provisions in the Third Bill and then submit both Bills simultaneously to the people, because if, as seems likely, both Bills were either approved or rejected—and I think it is likely that both of them will be approved—consequently, if they are approved by the people, they must be promulgated by the President as law, and then there would be two sets of provisions dealing with a Constituency Commission.

Duplication in any circumstances is bad in law. It is especially so where the provisions involved relate to the establishment of a body such as this. Only one Commission can be established for a particular purpose such as determining the constituencies and duplication of the provisions relating to it would, at the very least, cause uncertainty and ambiguity. As a form of drafting, duplication would not only be wrong; it would also be inelegant and most inappropriate in the fundamental law of the State.

This amendment purports to get over the difficulties by providing that the Constituency Commission provisions of the Third Amendment Bill should be omitted from every official text of the Constitution if the Fourth Amendment Bill is passed. If the purpose and effect of the amendment is to secure that the set of provisions proposed to be inserted in the Third Amendment Bill would, on the enactment of the two Bills, not be included in the revised official text of the Constitution then, I am advised, the resulting position would still be that two duplicate sets of provisions relating to Constituency Commissions would be in force. This situation could not, of course, be permitted to arise. Of course the two sets of provisions would not be exact duplicates either because the proposed new set provides for a two-thirds majority in the Dáil to amend a Commission's report and this would only cause even more confusion and uncertainty because the provision in the Fourth Amendment is for a simple majority of the Dáil.

On the other hand if the purpose and effect of the amendment is to secure that, if both Bills are approved, only one of the duplicate sets of provisions will come into force, I am legally advised that the procedure proposed would not be in accordance with Article 47 of the Constitution. Article 47 speaks of the votes at a referendum being cast in favour of the enactment into law of a proposal to amend the Constitution while Article 46 requires the President upon his being satisfied that such a proposal has been approved by the people, to promulgate it into law. It is clear, therefore, that any proposal for the amendment of the Constitution which is submitted to the people at a referendum must be a definite one and one which is unqualified in its terms; it must not be a hypothetical or alternative one. Furthermore, any approval given by the people to such a proposal must be a definite and not a conditional one. If the proposal is approved, it becomes part of the Constitution and must come into force as such. The legal advice which is available to me is, accordingly, to the effect that it would not be possible, within the terms of Articles 46 and 47 to submit to the people a proposal to amend the Constitution which would not, in certain circumstances, come into force. It must be a definite proposal which must become part of the Constitution.

The amendment now proposed is apparently based on Article 52.2 of the Constitution which provided for the omission from the official text of the Constitution of certain Transitory Provisions—Articles 52 to 63 inclusive. The provisions of these Articles, however, continue to have the force of law and their omission is merely an attempt to tidy-up modern copies of the Constitution by not including provisions which were concerned solely with the transition from the pre-1937 institutions to those established by the Constitution. It would, of course, be an entirely different matter to provide that provisions enacted into law by the votes of the people, and fully relevant in the present day should be omitted from a revised official text.

I think I have shown that whatever the approach, there is no legal way in which the objective of the farmers of the present amendment could be met. That, at any rate, is the import of the legal advice available to me and as I do not profess to be a Constitutional lawyer, I intend to abide by the advice I have got in this matter. Apart from that there are a number of defects in the amendment. It does not, for example, provide for the re-numbering of the existing sections 3 to 7 of Article 16 as is done in section 1 (g) of the Fourth Amendment Bill. Again, it provides, incorrectly, I am advised, for the inclusion in the Third Amendment Bill of a similar provision to section 8.10 of the Schedule to the Fourth Amendment Bill. Furthermore, if the Fourth Amendment is not passed the proposed section 9 of the Third Amendment Bill would become part of the Constitution and would of course appear silly in view of the fact that the Fourth Amendment had not been passed.

Senator O'Quigley says that the Committee on the Constitution wanted a Commission to be established and as I made clear, we proposed to establish a Commission. We intended originally to have only one proposal and to include a Constituency Commission. It was not our decision to separate this into two proposals. That was done to suit the Opposition. When the decision was made to have two propositions, as I said, we had to decide into which Bill we should put this proposal for a Constituency Commission. A Commission is being provided for in the only way in which it is possible to do it. When a selection had to be made we chose the Bill which makes the more fundamental change and gives the more scope for gerrymandering if this detailed information on voting habits is in fact available. I maintain it is not. Apart from that, as I pointed out before, we had no reason to believe that this Constituency Commission would be considered of such importance by the Opposition on this occasion. In 1959 the Opposition did not want a Constituency Commission at all.

Or a Third Amendment of the Constitution Bill.

There was opposition to a Constituency Commission and quite apart from the general opposition to the whole proposal. In fact, at the time, Fine Gael deliberately put down an amendment to delete the Constituency Commission from the Bill and argued in both Houses of the Oireachtas that a Constituency Commission was not necessary or desirable but that the desirable thing was that the Minister for Local Government at the time the revision was being made should take responsibility in both Houses of the Oireachtas, with the press looking on, for the revision and defend it in both Houses of the Oireachtas. That was the attitude taken and we had no reason to believe that in the short space of nine years the Opposition's mind would have so changed that they would now want not only one Constituency Commission but two. After all, before this Bill was introduced we were already told it was unreasonable to believe that it was possible that the people, or a small fraction of the people—only 1½ per cent of the voters —would have changed their minds and now we find that the two political Parties opposite who were opposed to the whole idea of a Constituency Commission changed their minds on this matter in the meantime.

Similarly on the last occasion when the provision in the Bill was that it would take a two-thirds majority to establish a Constituency Commission, that was also objected to. They wanted a simple majority and this time we proposed a simple majority and they are not in favour of that either.

This whole debate seems to me to be purely academic. The Opposition are opposing both proposals. We are sponsoring both proposals so it seems that either both will be passed or both rejected. If the Opposition have their way we will not have a Constituency Commission provided in the Constitution. If we have our way we will.

An Leas-Chathaoirleach

Before I call on Senator O'Quigley I want to remind the House that we are on Report Stage and any Senators who wish to contribute to the debate should now do so because Senator O'Quigley when called on will conclude the debate. Senator O'Quigley to conclude.

It may be only a form of words, a kind of phrase, the Minister has got into the habit of using or it may be something more serious that is amiss but the Minister for Local Government ought not to use the phrase "to please the Opposition" that they do so-and-so, or "to suit the Opposition" that they do so-and-so because the Minister for Local Government would not turn his hand to suit or please the Opposition if there was as little as that involved. If he really believed that it was to suit the Opposition, he is suffering from some sort of delusion. If he is out to do good to the Opposition, he is suffering from a delusion that not alone would he be the great saver of the Fianna Fáil Party but he would also have credit for installing a Fine Gael Party in office. This is the kind of schizophrenic——

An Leas-Chathaoirleach

I would not like the Senator to use up all his arguments which would be more appropriate to the Final Stage.

I find it difficult to refrain from making some comment on the Minister's phrase that he has done various things "to please the Opposition". This is perhaps a manner of speaking but we all know the last thing the Minister wishes is to please the Opposition. What I object to is the Minister talking like a lawyer instead of talking like a legislator. I objected before to adopting a legalistic approach to matters of this kind. The plain truth of the matter is that the people of this country can do anything they like on any amendment of the Constitution. Whatever they do becomes the law. They are the final arbiters on what is in the Constitution or what is not there. If they decide to have three Constituency Commissions in one Bill, that becomes law, whether purists like it or not. If they want to do it, they can and, therefore, if they want to put in two Constituency Commissions into the Constitution and they want one contingent on one being passed, they can do that. There is nothing to prevent a sovereign people from doing that and all this talk about ending up with two Commissions instead of one is all nonsense.

If the Minister wants to insist on putting a proper Bill to the people, we could have this Bill prepared in such a way that there would be no difficulty about it and there would be nothing to which even a theorist in legal matters would object. The position is that the Minister now says—and again I cannot see how he can bring himself to say something that he knows is not so —that what we want is two Commissions. We want one if the two Bills will be passed: we want one Commission. The amendment I introduced on Report Stage is to provide that the Commission I am proposing will drop in the event of the Fourth Amendment being passed. This is for the purpose of providing for only one Commission when the full text of the Constitution is written, for the purpose of keeping the Constitution up to date. The Minister chooses to say we want two Commissions. We do not. The fact that the second Commission will drop out if both Bills are not passed means that we will not have two Commissions, but one only. We are not as stupid and silly as that. We do not want to clutter up the Constitution with unnecessary verbiage. Of course, it is correct to say that every device was adopted in 1959 to prevent the 1959 Amendment to the Constitution being passed. The fact that we are now proposing this amendment does not for a moment mean we want the Third Amendment to the Constitution to be passed. I do not believe either Bill will be passed. The Minister thinks both will be passed but that is a matter to be resolved in the future. The Minister uses the argument that no other democracy he knows of has provisions as restrictive in relation to deviation from the national average in the matter of population to constituencies as are contained in this Bill. As far as I am concerned, I do not care a fiddle-de-dee what any democracy has in its Constitution. That is their business. I do not care what licensing laws they have and I do not care what their road traffic laws are. That is for them and not a matter for us.

I am concerned about the well-being of this country and the well-being of the Irish people and I am concerned to ensure that Fianna Fáil proposals will not be adopted and that Fianna Fáil will not get their way to gerrymander the constituencies in the way that will ensure that they will get most use out of their declining vote. The Minister comes in here on the basis that the Fianna Fáil Party would never think of self-interest. Senator Nash and other Senators are annoyed when you suggest that Fianna Fáil are all the time out for their own ends and that they want this Third Amendment to the Constitution for the purpose of giving themselves the greatest possible room for manoeuvre in the event of their losing on the straight vote without any Constituency Commission hindering them if the Third Amendment to the Constitution Bill is passed. One would imagine they spent all their time thinking about what is absolutely right and proper and that there is never any self-interest or self-gain for Fianna Fáil.

The Minister should drop that mask and give up that pretence which certainly is not amusing at this stage. It certainly is not fact and every Fianna Fáil Senator knows that in any matter relating to those Bills they are certainly for the well-being of the Fianna Fáil Party and they justify their conscience by saying: "Fianna Fáil interests are the interests of the nation". This is the way they justify their conscience but we have only to look at the record to see how untrue that idea is and how self-delusory is that view of Fianna Fáil. I am asking in this particular amendment that we take account of the fact that the people are able to choose. They might very well accept the Third Amendment Bill and reject the Fourth Amendment Bill. That is a possibility but it is a possibility the Minister does not see.

That is where the Minister might well be mistaken. I do not believe it is a probability either but it is a possibility. If the Minister were sincere in amending the Constitution in the way that would be for the public well-being, he should make provision for the establishment of a Constituency Commission in the event that the Fourth Amendment Bill is defeated and the Third Amendment Bill accepted.

You can have a commission without its being in the Constitution.

That is very likely. It has not been done up to now and it was not done since 1959.

We did not know you would like one until now.

Cuireadh an leasú agus faisnéiseadh go rabhthas tár éis diúltiú leis.

Amendment put and declared lost.
Cuireadh agus d'aontaíodh an cheist: "Go nglacfar an Bille chun an breithniú deiridh a dhéanamh air".
Question: "That the Bill be received for final consideration" put and agreed to.

An Leas-Chathaoirleach

I understand that there is an agreement that the Fifth Stage debate on the Third Amendment of the Constitution Bill will also include a debate on the Fourth Amendment of the Constitution Bill.

The debate on the Fifth Stage of both Bills will take place together.

That involves taking the Report Stage of the Fourth Amendment Bill.

An Leas-Chathaoirleach

If we might proceed to debate the Fifth Stage of the Third and Fourth Amendments to the Constitution Bills together, the Report Stage and the Final Stage of the Fourth Amendment Bill can then be put afterwards without debate.

If necessary, we can take the Report Stage of the Fourth Amendment to the Constitution Bill now and then go on to the Fifth Stage of both Bills.

An Leas-Chathaoirleach

Is it agreed that we do this and that we have the Final Stage of both Bills together?

Can there be any debate on the Fourth Stage of the Fourth Amendment to the Constitution Bill in view of the fact that there is no amendment?

An Leas-Chathaoirleach

It is most unlikely. The usual practice in such a case is to have the debate on the Fifth Stage.

It might be as well to clear the Report Stage of the Fourth Amendment Bill now.

Barr
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