John Gormley (Dublin South East, Green Party)

The Constituency Commission presented its Report on Dáil and European Parliament Constituencies 2007 to the Ceann Comhairle on 23 October 2007.

At the outset, it might be helpful for the House if I outline the principal constitutional and other legal requirements relating to the revision of Dail constituencies. Article 16° of the Constitution provides: "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 cases in 1961, the High Court case of John O'Donovan versus the Attorney General and the Supreme Court reference case relating to the Electoral (Amendment) Bill 1961. It was again considered in a High Court case last year taken by Deputies Finian McGrath and the former Deputy Catherine Murphy where it was argued that the constituencies on which the general election was being fought did not comply with the constitutional requirement contained in that article. In none of these cases did the courts quantify the precise degree of equality of representation that is required by the Constitution.

In his judgment in June 2007, Mr. Justice Clarke emphasised the urgent obligation on the Oireachtas under the Constitution to revise constituencies in circumstances such as those we now have. For example, at paragraph 4.23, he stated that where census figures show that current constituencies are no longer proportional, "....the Oireachtas has an immediate and pressing obligation to put in place measures designed to remedy that problem by enacting appropriate amending legislation". At paragraph 8.1 of the judgment, he stated: "...the obligation to review constituencies is one which places an urgent burden on the Oireachtas. This burden is all the more so when constituencies can be demonstrated to have as high a degree of lack of proportionality as was undoubtedly demonstrated to be the case on the facts of this case."

Examples of significant disparities in terms of population to seat ratio based on Census 2006 include 21.24% above the national average in Dublin West; 17.76% above the national average in Dublin North; 13.79% above the national average in Meath East; and 10.6% below the national average in Dun Laoghaire. These constituencies are still in place.

Article 16.2.4° of the Constitution provides that: "The Oireachtas shall revise the constituencies at least once in every twelve years, with due regard to changes in distribution of the population, . . ." This, in effect, requires that the constituencies be revised whenever population changes shown in a census lead to populations per Deputy in individual constituencies that are significantly out of line with national average representation. Mr. Justice Clarke's judgment, as I said, emphasises that there is an urgent obligation on the Oireachtas to revise constituencies as soon as it becomes clear from a census that the existing constituencies no longer have the level of proportionality that the Constitution requires.

Section 5 of the Electoral Act 1997 provides that, on publication of the relevant CSO report on a census, the Minister for the Environment, Heritage and Local Government must set up a commission to report on Dáil and European constituencies. The terms of reference of the commission are specified in the Act, which are subordinate to the relevant constitutional provisions.

For over half a century after the founding of the State, changes in constituencies were formulated and advanced by the Government of the day. 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 non-statutory commissions continued to report on the constituency revisions until the enactment of the Electoral Act 1997. The commission that reported in October 2007 is the third statutory commission established under the Act. It is the long-established practice for the Oireachtas to enact, in full, constituency revisions recommended by the independent commissions created for this purpose over the last 30 years.

Under the 1997 Act, a constituency commission was established on 26 April 2007, chaired by the honourable Mr. Justice larfhlaith O'Neill, a judge of the High Court. The other members of the Commission were Mr. Kieran Coughlan, Clerk of the Dáil; Ms. Deirdre Lane, Clerk of the Seanad; Ms. Geraldine Tallon, Secretary General of the Department of the Environment, Heritage and Local Government; and Ms. Emily O'Reilly, the Ombudsman.

Section 6 of the 1997 Act provides that a constituency commission shall, in observing the relevant provisions of the Constitution, have regard to the following: the total number of members of the Dáil shall be not fewer 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; each constituency shall be composed of contiguous areas; there shall be regard to geographic considerations, including significant physical features and the extent and density of population in each constituency; and, subject to these provisions, the commission shall endeavour to maintain continuity with regard to the arrangement of constituencies.

The commission's report recommends that total Dáil membership should remain at 166, in 43 constituencies, the same number as at present. A total of 19 of the proposed constituencies are identical in name, area and level of representation to an existing constituency. A further 18 retain the name and level of representation of an existing constituency, but differ from it to varying degrees in area. Many of these changes are small and involve a relatively minor reallocation of population, for example, from the Cork East, Cork North-West, Donegal North-East, Kildare South and Laois-Offaly constituencies. Therefore, many parts of the country are not affected, or are not affected significantly, by the commission's recommendations.

Inevitably, however, given the constitutional requirements as regards equality of representation, there are significant changes in some areas where the 2006 census indicated notable population growth or decline compared to the national average. An increase of one seat is proposed in both the Louth and Dublin West constituencies, together with changes in the areas covered by the constituencies. A reduction of one seat is proposed in both Dún Laoghaire and Limerick East, with the latter to be renamed as Limerick City. Changes in the areas covered by these constituencies are also provided for. It is proposed that the area and name of two constituencies should change and that Kerry North and Limerick West should be amended to Kerry North-West Limerick and Limerick, respectively.

The commission's terms of reference include the avoidance of breaches of county boundaries as far as practicable. Commission recommendations have at times been criticised for not keeping to these boundaries. The current report involves three new breaches of county boundaries, in Kerry-Limerick, Louth-Meath and Offaly-Tipperary. While attachment to county boundaries is understandable, the terms of reference of commissions are subordinate to the relevant constitutional provisions, which do not refer to counties.

In the High Court judgment of Mr. Justice Budd in the O'Donovan case, it was stated:

. . . although a system in the main based on counties has in fact been adopted, there is nothing in the Constitution about constituencies being based on counties. The Constitution does not say that in forming the constituencies according to the required ratio, that shall be done so far as is practicable having regard to county boundaries.

There is no absolute prohibition on the breach of county boundaries. Indeed, the experience has been that at times the constitutional provisions require such action.

On European Parliament constituencies, the commission recommends, in a context of 12 representatives from Ireland in the Parliament, a reduction of a seat in the Dublin constituency and the transfer of the population of counties Longford and Westmeath from the east to the north-west constituency.

We can all recognise that it might have been possible for the commission to suggest solutions other than those recommended in the report. However, the commission's independent determination of the issues, taking account of submissions made, should be respected. By cherry-picking individual recommendations, we would undermine the reasons for establishing an independent commission in the first place. It is my firm view that the precedent of adhering to the commission's advice should not be broken.

Deputies from all sides will undoubtedly have views on specific recommendations. While some views may be quite positive, it is probably human nature that those who are not happy with the report will contribute more to discussion on it than those who are content with it. I have no doubt that there will be cross-party concerns about recommendations affecting particular local areas. I fully acknowledge and respect such concerns, which reflect the inevitably significant impact of the relevant constitutional requirements on areas with population trends which diverge from the national average. They are also, in terms of their cross-party nature, a mark of the independence of the commission in carrying out its work. In this regard, it should be noted that the commission gives careful and considered reasons in its report for the recommendations it makes.

Consistent with past practice and taking account of the urgent need for the Oireachtas to legislate in accordance with the commission's report, the Government approved the drafting of the necessary Bill to give effect to the commission's report at its meeting on 30 January 2008. Drafting of the Bill is at an advanced stage and my Department and the Attorney General's Office are working to ensure that the Bill will be published as soon as possible.

The Electoral (Amendment) Bill 2008 will also provide for future commissions to be established on publication by the CSO of the preliminary figures in respect of a census and for the work of a commission to be finalised after publication by the CSO of the final census figures. The Bill will bring nomination procedures for non-party candidates at European Parliament and local elections into line with those enacted for Dáil elections in the Electoral (Amendment) Act 2007.

I look forward to the contributions of Deputies on this important issue. However, I must stress again the need for action. There is, in the words of Mr. Justice Clarke in paragraph 8 of his judgment, "an urgent constitutional imperative on the Oireachtas to deal with any disparity as a matter of urgency". The Bill I propose to bring before the House shortly to implement the commission's report will do that.

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