Dick Roche (Wicklow, Fianna Fail)

It is because I consider the issue to be important that I was prepared to allow the Bill to be recommitted in respect of the amendment. I welcome the discussion. I picked up on the phrases "pretty close" and "near enough" which were used in the debate to describe the difference between the preliminary report on the census and the final report in volume 1. To be pretty close or near enough is not sufficient in law.

The issue Deputy Gilmore raised relates not to general averages but to the specific timing of the census volume. The moving of the amendment by the Deputy gives me the opportunity to record that following every census, the Central Statistics Office publishes its results on a phased basis, which we all accept. The office publishes an initial report which it says is preliminary, provisional and without statutory force, which are three important considerations in the context of any potential challenge.

Deputy Gilmore was correct to state a challenge could take place one way or the other. It is important to take the opportunity to state the legal position to the House. Deputy Morgan made the point that, taking the overall scenario in the country, the difference between the head count and the final figure was 130, which is a minuscule figure. That minuscule figure, however, does not take into account variations from area to area and, for example, within district electoral divisions which one would expect to even out over the period. The figure of 130 nationally is an arithmetic figure which does not reflect the detail required to discuss the issue in question.

Volume 1 of the CSO publication on population classified by area in the April 2002 census was published in July 2003. Section 5(1) of the Electoral Act 1997 requires the Minister for the Environment to establish a constituency commission on publication of the census report setting out the population of the State classified by area, which is by volume 1. One does not get the required level of detail until one gets to volume 1, which is why that volume is used. While the CSO publishes a preliminary report, it does so with a number of health warnings attached to the effect that it is provisional and without statutory force.

I read with special interest the articles to which Deputy Gilmore made reference as I anticipated the issue under discussion would arise. The author failed to take into account, especially in the first article, the fundamental difference on detail and area which is the basis for the use of volume 1. It is the reason the more precise volume has always been used and explains why it would be dangerous to move to a different system. There is language in High and Supreme Court judgments which supports the use of volume 1. It is important in dealing with the matters under discussion to consider final rather than provisional or preliminary figures.

I consulted the Irish Reports for the High Court and found a judgment of Mr. Justice Budd on page 119 of the 1961 volume which was very clear on the issue. Mr. Justice Budd said that although the preliminary figures of the 1946 census were provided in the case in question, it was the final figures to which regard must be had for proper purposes of comparison as to the distribution of population. It is very clearly cut that one must have the benefit of the final rather than the preliminary figures. A report of Supreme Court proceedings contains a judgment of Chief Justice Maguire in which he stated that the only way to ascertain the exact figure is by reference to the last completed census of the population.

I accept Deputy Gilmore's point that there could be a challenge. A challenge can be made to anything and no one can stand in my place and argue, irrespective of party, that one will never be made. The basis we have adopted in all cases to date of waiting for the final figure in volume 1 is supported not only by logic but by the language used in High and Supreme Court cases, especially the Budd judgment in the O'Donovan case. It would be imprudent of a Minister to change a long-standing practice based on strong legal advice to move to a scenario in which we would rely on the initial figures. The Deputy is correct, there could be a legal challenge. It would be much more probable if one were to depart from practice and go for initial rather than final figures.

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