Eamon Gilmore (Dún Laoghaire, Labour)

We are very much in unknown territory. We have a Bill before us which will set down the constituency boundaries in line with the 2002 census and the report of the boundary commission arising from that. We know that there will be a census in 2006 and that the preliminary figures on that census will be published around July 2006. We expect, based on what is already known to the CSO, that the 2006 census will show a population increase of about 250,000. I referred earlier to the degree to which that is likely to give rise to changes in the boundaries of constituencies. It is likely that the constituency of Louth will have the same population as the constituency of Cavan-Monaghan after 2006, yet Louth will have four seats while Cavan-Monaghan will have five. In her contribution, Deputy Catherine Murphy pointed out that it is likely the 2006 census will show that the existing Kildare North constituency will have exceeded the one Deputy per 30,000 ratio set out in the Constitution.

The Minister is very buoyant in his belief that the legislation before us is robust enough to withstand any legal challenge against it. The truth is that he does not know — none of us knows — what will happen if a case goes before the courts. In my opinion, there is a high likelihood that a case will end up before the courts on this issue. The court will be exercised about two issues. First, there is a difference between the provisional figures and the official figures. The figures available around July 2006 will be the provisional census figures. We know from experience that the provisional census figures and the official census figures do not differ much. On the last occasion, the total difference was about 130 people in the entire country.

Second, we must look at what is required by the Constitution. Article 16.2.3° of the Constitution states:

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.

What does the word "ascertained" mean in the context of this article? Does it mean the publication of the official census figures, or does it mean that once the information is available from the census returns that it has been ascertained? I imagine that the courts might spend some time addressing what that exactly means. We are making the legislation in the almost certain knowledge that this Bill, once enacted, will be challenged if an election is not held before the census figures for 2006 are available.

In such circumstances, two issues arise. First, we are obliged to comply with the Constitution. We are obliged to ensure that no constituency exceeds one Deputy per 30,000 people. We are obliged to ensure that the ratio should be, as far as is practicable, the same throughout the country. We are heading into a situation where we know that the ratios are not the same. We know that there has been significant population movement, especially on the eastern side of the country, which will give rise to dramatic changes in the ratios between the number of Deputies and population. It is not wise for the Oireachtas to make legislation knowing that it is creating a situation at the next general election where that ratio will be skewed.

Second, if the 2006 population figures are known before the next general election and they show the skewed nature of the representation or that the maximum limit provided by the Constitution has been exceeded, somebody will inevitably take a case to the courts. We will be creating a set of circumstances where we will have a case before the courts in the run up to a general election. That will create much uncertainty if the courts decide that this Bill, as enacted, does not pass muster as far as the Constitution is concerned. If a decision is made in the High Court in late 2006 or early 2007 that declares the 2005 Act is unconstitutional based on what has been ascertained in the census, we will all be wondering what will happen next. Will it be appealed? If it is, it will be taken closer to the wire. If the outcome of an appeal upholds a decision that the 2005 Act is unconstitutional, what can be done? Will the Minister have to establish a new boundary commission and revise constituencies on the hoof? It should be remembered that on the last occasion a major case on electoral issues was taken, the High Court handed down its decision the day before polling. If that happens again, the question of the status of a Dáil elected on foot of an Act the court has found to be unconstitutional will arise.

I raise this matter because we are in uncertain and unprecedented territory. The next census will probably reflect the most significant ever changes over a short period in population in Ireland, with attendant consequences for constituency boundaries. It would be prudent of the House to take that on board. I bring my concerns to the attention of the House because it is not good enough for the Minister to simply say that he is satisfied the legislation will withstand any legal test. Not only does he not know whether it will do so but there have been countless instances in which legislation passed by the House has been found by the courts, within a short period, to be defective. We do not know what the courts will decide because they make their decisions independently of the House. They may present us with a political crisis if a decision is made too late to establish an independent commission to revise constituency boundaries.

We know what we know now and have a fair idea of what the 2006 census will tell us. As my amendment seeks, we should anticipate its findings by making provisions for them.

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