Dick Roche (Wicklow, Fianna Fail)

I move: "That the Bill be now read a Second Time."

The main purpose of this Bill is to implement the recommendations in the report of the independent constituency commission, published in January 2004, on revisions to the Dáil constituencies for the next general election. A copy of the report was given to each Member of the Oireachtas when it was presented to the Ceann Comhairle. At the outset, it may be helpful to outline the principal constitutional and legal requirements relating to the establishment and revision of Dáil constituencies and other relevant background to the Bill.

Article 16.2.3° of the Constitution provides that:

The ratio between the number of Members to be elected at any time for each constituency and the population of each constituency, as ascertained at the last preceding census, shall, so far as it is practicable, be the same throughout the country.

This provision was considered by the courts in two landmark cases in 1961, the High Court case of John O'Donovan v. the Attorney General, and the Supreme Court reference case relating to the Electoral (Amendment) Bill 1961. In neither of these cases did the courts quantify the precise degree of equality of representation that is required by the Constitution, although Mr. Justice Budd in the O'Donovan case appeared to suggest a departure of approximately 5% from strict mathematical parity would be acceptable.

Dealing with the question of equality of representation in the reference case, the Supreme Court stated it could not lay down a figure above or below which a variation from the national average population per Deputy is not permitted. The court stressed that the practical considerations which ought to be taken into account, and the weight that should be attached to them in departing from strict equality of representation, are primarily matters for the Oireachtas and should not be reviewed by the courts unless there is a "manifest infringement" of the relevant article of the Constitution. The court concluded the test to be applied is whether the failure to maintain the ratio between the number of Members for each constituency and the population of each constituency involves such a divergence as to make it clear the Oireachtas has not carried out the intention of the relevant constitutional provisions.

A referendum in 1968 to amend the Constitution to provide that the population per Deputy could not be greater or less than the national average by more than one sixth was defeated on the same day as a proposal to change the voting system. In each revision of constituencies between 1961 and 1974, the limit of 5%, referred to in the O'Donovan case, was adhered to. However, more substantial departures from mathematical equality of representation were provided for in the revisions carried out since 1974, based on the recommendations of independent commissions. The maximum departure since 1980 was 7.89% below the national average in the constituency of Mayo East in 1983. The proposed constituencies in the Bill are within this range.

Article 16.2.4° of the Constitution provides that, "The Oireachtas shall revise the constituencies at least once in every 12 years, with due regard to changes in distribution of the population". This, in effect, requires that constituencies be revised whenever population changes result in populations per Deputy in individual constituencies that are significantly out of line with national average representation. Therefore, section 5 of the Electoral Act 1997 provides that, on publication of the relevant CSO report on a population census, the Minister for the Environment, Heritage and Local Government must set up a commission to report on Dáil and European constituencies. The membership of the commission is specified in the Act, together with its terms of reference, which are subordinate to the relevant constitutional provisions, and a requirement that the commission reports within six months of its establishment.

Article 16.2.2° of the Constitution provides that:

The number of Members shall from time to time be fixed by law, but the total number of Members of Dáil Éireann shall not be fixed at less than one Member for each 30,000 of the population, or at more than one Member for each 20,000 of the population.

Based on the population in 2002, this provision would allow for Dáil membership to be fixed within a range of 131 and 196 seats. However, the statutory terms of reference for constituency commissions provide that the total Dáil membership shall be not less than 164 and not more than 168 members. In accordance with the reports of successive commissions, the total Dáil membership has been fixed at 166 since 1980.

Finally, Article 16.2.6° provides that, "No law shall be enacted whereby the number of Members to be returned for any constituency shall be less than three." The statutory terms of reference of a commission provide that constituencies must be represented by three, four or five members. This is the background against which the provisions are introduced. I have outlined the historical background because it is important that we remind ourselves occasionally how we have reached the current position in terms of constituencies and Dáil membership.

As Members are aware, for more than half a century after the founding of the State, changes in constituencies were formulated and advanced by the Government of the day. This process has occasionally been the subject of criticism from across the political spectrum, especially from those parties in Opposition, including my own, when such changes were made. The first constituency commission was set up in 1977 to report on constituencies for the first direct elections to the European Parliament in 1979. The first Dáil constituency commission was established in 1980 on a non-statutory basis and such commissions continued to report on constituency revisions until the enactment of the Electoral Act 1997. The commission that reported in January 2004 is the second statutory commission established under the Act.

Volume 1 of the 2002 census reports was published in July 2003. This showed an increase in total population from 1996 of over 291,000, giving a total 2002 population in the State of 3,917,203. Thus, each of the 166 Deputies represented an average of 23,598 persons in 2002. The detailed population figures for each constituency showed there were serious variances from the national average population per Deputy in many constituencies. In 22 constituencies there were variances from national average representation in excess of 5% and 13 had deviations in excess of 8%. The most under-represented constituencies were Kildare North and Dublin West with variances of +20.73% and +16.43% respectively. The most over-represented constituencies were Dublin North-West and Sligo-Leitrim with variances of -11.89% and -11.01% respectively. Significant changes are therefore necessary in some areas to secure equality of representation between constituencies based on the 2002 census and to comply with the constitutional norms.

In accordance with section 5 of the 1997 Act, a constituency commission was set up in July 2003, chaired by Mr Justice Vivian Lavan. The other members of the commission were Mr. Kieran Coughlan, Clerk of the Dáil, Ms Deirdre Lane, Clerk of the Seanad, Mr. Niall Callan, Secretary General of the Department of the Environment, Heritage and Local Government, and Ms Emily O'Reilly, the Ombudsman. I take this opportunity to thank the commission members for the conscientious and impartial manner in which they carried out their work. I particularly compliment Mr. Justice Lavan on the clarity of his presentation.

Section 6 of the 1997 Act provides that a constituency commission shall, in observing the relevant provisions of the Constitution, have regard to a number of principles. The total number of members of the Dáil shall be not less than 164 and not more than 168. Each constituency shall return three, four or five members. The breaching of county boundaries shall be avoided as far as practicable. However, this restriction does not extend to city boundaries or to the administrative county boundaries in Dublin. Each constituency shall be composed of contiguous areas. There shall be regard to geographical considerations, including significant physical features and the extent and density of population in each constituency. Finally, subject to those provisions, the commission shall endeavour to maintain continuity in the arrangement of constituencies. The constituency commission approaches its task with a clearly established remit.

The constituency commission presented its report on European Parliament constituencies in September 2003. Its recommendations were enacted in the European Parliament Elections (Amendment) Act 2004 and were applied at the European elections in June 2004. The main features of the commission's January 2004 report on Dáil constituencies are as follows. First, there should be no change in the existing level of Dáil membership of 166 seats. Second, there will be a net increase of one in the number of constituencies, from 42 to 43. Third, there will be an extra seat in the Kildare North constituency, expanding to a four-seater constituency, and in County Meath, where two three-seaters will be established. As Deputies well know, given our recent adventures in that county——

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