Eamon Gilmore (Dún Laoghaire, Labour)

I move amendment No. 1:

In page 3, between lines 20 and 21, to insert the following:

"2.—Section 5(1) of the Electoral Act 1997 is amended by the deletion of 'Census Report setting out the population of the State classified by area' and the substitution therefor of 'Preliminary Report containing provisional information on the population of the State including classification by Electoral Area'.".

I thank the Minister for agreeing to recommit the Bill in respect of the amendment. I discussed my concerns regarding the section with him privately and my anxiety that the matter be considered in the House. The issue that arises has been the subject of articles by Shane Coleman in The Sunday Tribune in which he drew attention to the likely outcome of the 2006 census and the consequences it may have for the legislation we are discussing.

The revision of the constituencies recommended by the commission, which the Bill addresses, arises from the 2002 census, which had been delayed as a result of the foot and mouth scare in 2001. However, the Central Statistics Office estimates that the 2006 census will produce a population for the State of approximately 4.15 million as opposed to the 2002 census total of 3.9 million people. If the 2006 census results in a population of 4.15 million and assuming that the number of Members of the House remains at 166, the average population per Member will then be approximately 25,000. Having constituencies based on the boundaries in the Bill will mean very wide differences in the representation from constituency to constituency. For example, the respective populations of Cavan-Monaghan, a five-seat constituency under the Bill, and Louth, a four-seat constituency, will be roughly the same.

The article by Shane Coleman states:

Late last year, political analyst and research expert Odran Flynn analysed the 43 constituencies, and based on available population data, trends and proposed new developments, he estimated the likely population growth in the constituencies by the next census. His analysis suggests that after 2006, a staggering 21 of the constituencies will have a TD/population ratio more than 5% outside the national average. Ten of those will be more than 8% outside the average... Flynn predicts that Dublin West and Kildare North will be under-represented by a whopping 12% by 2006. Other counties under-represented include Dublin Central (by 10%), Dublin North (10%), Dublin Mid-West (9%) and Meath West (7%).

He continues to list a number of constituencies which he claims would be over-represented if the 2006 census results in the population we expect.

Before the House is a Bill to revise the constituencies. If the next general election is held before the 2006 census results are known, we will have no issue — the Bill will remain intact and will be in line with the available census information known at the time the legislation was passed, in which case presumably it would not be vulnerable to legal challenge. However, if the next general election is held after the 2006 census figures are known and it transpires that there are variances in constituency representation in the order I have described, I believe it is highly likely that somebody will challenge the constitutionality of the legislation. We know the Constitution requires that the population ratio must be between 20,000 and 30,000 per Member of the House. However, from cases taken to the courts previously, we also know that the courts expect the ratio to remain close to the national average. If there are very wide divergences from the national average it is likely that somebody will challenge. I do not believe anybody in this House could predict what the courts would decide on the constitutionality of the Bill.

The issue that will arise will centre on how the courts view the provisional census data, which are usually issued approximately three months after the census is completed. This would mean that the provisional census data would be available in July 2006. From the last census the provisional figure, which was published in July 2002, was 3,917,336. The final report showed a population of 3,917,203, which represented a difference across the entire country of only 133 people. This means that on the last occasion the provisional figures published were 99.997% accurate. The argument that has been made that the courts will not accept the provisional figures may not hold as we know the provisional figures are pretty close to the mark. If provisional figures are published in July 2006, people in County Louth, for example, may claim that they are under-represented in comparison with the constituency of Cavan-Monaghan. All that needs to happen is for someone to go to court and claim that the Electoral (Amendment) Bill 2005 is unconstitutional. We could find ourselves in a position where the courts are making a decision on the constitutionality of the constituency boundaries very close to the deadline of a general election — the Kelly judgment was handed down on the day before the previous general election — and that could have had dramatic consequences.

This is a serious issue which needs to be addressed. The constitutionality of the Bill is sound in respect of the 2002 census. Whether it will stand a test based on the 2006 census figures is very much in doubt. The courts will have to decide whether to rely on the provisional figures or the official figures. The estimate is that there will be a population increase of 250,000 in the four years to 2006. Due to development in the wider commuter belt around Dublin in recent years, it will have a huge impact on the proportion of the population to Members of the House.

I propose the amendment to address this issue. I do not think anybody — Members of the House, prospective candidates, political parties or the public — wants a situation where the next general election is engulfed by court cases on constituency boundaries. Who knows what decisions the court will make?

See this speech in context