Phil Hogan (Carlow-Kilkenny, Fine Gael)

The definition of a minimum delay seems to depend on who one is. The Minister for the Environment, Heritage and Local Government and the Taoiseach have ignored the commission, statute law, the Constitution and the clear direction of the courts with regard to the implementation of the report of the Electoral Boundary Commission with minimum delay. The Green Party seems to be happy to sit idly by and watch this happen under the watchful gaze of one of its own.

I was bemused recently when the Taoiseach, then Tánaiste, was expansive on the Order of Business about Members here having a second bite of the cherry with regard to the report of the Electoral Boundary Commission. However, I was less bemused when I looked into what he was proposing. When he said that Members should have an opportunity to give their views and send them back to the commission — to do what, he did not say — that could, if one was an undying optimist, be regarded as Fianna Fáil finally accepting the primacy of the Dáil. In the same week that he proposed this new review role for the Dáil in respect of the boundary commission, the Dáil was told by the outgoing Taoiseach when commenting on tribunals that there was a different or better way to deal with things. The former Taoiseach told the Dáil that a better way of dealing with investigations into ethical wrongdoing or corruption by Members through tribunals was by a committee of the House. This road to Damascus conversion is a bit rich from a party which has been in power for the past 11 years and has sat on meaningful reform of the Dáil. The one exception — Leaders' Questions — came from the then Ceann Comhairle rather than resulting from openness on the part of Fianna Fáil.

The Taoiseach has received plaudits for his eulogy at the late Patrick Hillery's funeral on what was interpreted by some in the media as affirming a departure from the dark Haughey era. However, on Question Time he proposed to review the report of the Constituency Commission, placing himself slap bang in the middle of that same era.

Constituency revisions, before the onset of the Constituency Commission in 1980, had a chequered history. Since Jack Lynch, a noble predecessor of the Taoiseach, established the commission in 1980, all its reports have been enacted into law by both Houses without amendment. The one exception was in 1988 when the then Taoiseach, Charles J. Haughey, tried to rig the terms of reference by excluding the creation of five-seat constituencies, save only in exceptional circumstances. In 1988 the commission was not on a statutory footing so Charles J. Haughey, as he would, and the then Minister for the Environment responsible, the redoubtable Padraig Flynn, who had other things on his mind as well, probably felt the commission was fair game for a bit of muzzling. The report of that commission was never enacted or even initiated as a Bill as Charles J. Haughey led a minority Government. That was the only occasion in its 28 years when a commission's report was not enacted.

The situation is very different now that the Government has a comfortable majority. One can only imagine what kind of stricture we would have were it not for the fact that the Minister stated today that he accepts the independence of the commission without reservation. I welcome that.

Under the Electoral Act 1997, the commission is a statutory independent body so the bar is raised even higher. Yet the Taoiseach, in a contribution to the Dáil some weeks ago, proposed to set aside the commission's report and the law of the land. He cast doubt on the validity of the current report. He engaged in a breach of trust with the membership of the commission, which does an excellent job. It is in place to ensure the integrity of the electoral boundary process, which is important in our democracy. The Taoiseach informed some of his electorate in south Offaly that he would sort their problem out and ensure they were not moved into the Tipperary electoral area.

The Taoiseach stated that Members have the right to change the recommendations of the commission's report. While technically correct, that can only be when the recommendations are before this House as a Bill. Today's format of statements is a meaningless exercise. In any event an electoral Bill has never been amended. If we were to follow the Taoiseach's confused thinking on this subject, Members, as legislators, would be given the opportunity to change reports from the numerous commissions and so on, for example, on the health services.

Why should the Constituency Commission's reports be treated differently? Constituency boundary changes do not suit all parties at various times. What is gained in the roundabouts is lost in the swings. That is the price to pay to allow the independent commission, headed by a High Court judge, to get on with its job, which is thankless at the best of times but is a very important one in protecting our parliamentary democracy and the integrity of our electoral process. I do not want us to go back to the bad old days of the 1960s and 1970s when parties and Governments did not adhere to the proper and appropriate ways in which constituency reviews could avoid the charge of gerrymander.

I hope the Taoiseach sees the errors of his ways, learns his lesson and backs off with this reckless proposal. If this is his line of thinking about what he can do with constituency boundaries, it does not augur well for his tenure as Taoiseach. We do not want to go back to the dark days of the Haughey era with the manipulation of our electoral process.

It was a Fianna Fáil-Ied Government that implemented the Electoral Act 1997. If there is a problem, why not introduce primary legislation to amend it? It is classic Fianna Fáil practice — speaking out of both sides of the mouth at the same time. It is only by proposals from the Government regarding the terms of reference, now legally enshrined in the Electoral Act, that anomalies arise, such as in the case of Leitrim, south Offaly and Dublin North and Carlow-Kilkenny. In the last review, Carlow-Kilkenny, for which I am Member, had to put up with the swings and roundabouts. I did not have much support from Government figures, including the Taoiseach, to address that anomaly. People accepted that one had to be within the constitutional limits for constituency size and they got on with business.

Instead of today's statements, we should be dealing with legislation to implement the latest report's recommendations. I am surprised the Minister has not taken the opportunity to introduce a Bill rather than having these meaningless statements.

Part II of the Electoral Act 1997 provided for the establishment of a Constituency Commission upon publication by the Central Statistics Office of the census report setting out the population of the State by area. The Constituency Commission reports on the constituencies for the election of Members to the Dáil and the election of representatives to the European Parliament. The review does not apply to local electoral areas. Section 9(4) states: "As soon as may be after the establishment of a Constituency Commission, and, in any event, not later than six months after such establishment, the Commission shall present to the Chairman of the Dáil".

There is a significant dispute between the parties as to the proper interpretation of a "census" as that term is used in Article 16.2.3° of Bunreacht na hÉireann. That dispute is brought into stark relief by a consideration of the timing of certain important events. The census was conducted in April 2006. On 19 July 2006 the Central Statistics Office published a so-called "preliminary report". On 29 March 2007, the Central Statistics Office published what was called the principal demographic results.

In a case brought before the last general election by the former Member, Catherine Murphy, and Deputy Finian McGrath, interpretation of these terms was adjudicated on by Mr. Justice Clarke. He stated it would be in order for preliminary results from a census to be taken into account when establishing a Constituency Commission but the recommendations of the commission cannot be finalised until the final census figures are compiled. The Oireachtas has chosen to enact the 1997 Act which provides, in Part II, for the establishment of a Constituency Commission and the reporting by that commission to the Chairman of the Dáil within a specified period.

Given the urgent nature of the obligation on the Oireachtas to ensure that the period between the publication of a new census disclosing a population disparity in the constituencies and the enactment of new constituencies to deal with that disparity, it seems that the Oireachtas would have to give urgent consideration to whether it would be appropriate to amend the 1997 Act to enable the processes set out in that Act to commence after the publication of a preliminary report. It gives the option to the Minister, which he has indicated he will enshrine in law, to intervene with regard to the preliminary figures.

The judge was quite forceful in his judgment:

However it seems to me to be clear that if, without justifiable reason, the Oireachtas did not take appropriate steps to ensure the minimum delay between the finalisation of the ascertainment of the population in a census and the determination and enactment of a law providing for new constituencies, then it might be appropriate for the court to take further action.

It would seem the Minister is open to challenge because he has not observed the court judgment. If any Member wished to take that challenge it would go back to the High Court and the Minister would be forced to act. Six months later is not in my view the definition of "minimum delay".

This has been a meaningless exercise. The Minister for the Environment, Heritage and Local Government, has now informed the House that he is implementing the electoral boundary commission's report in full and this is to be welcomed. He is not engaging in the charade that has been suggested to him by the Taoiseach in revising boundaries in order to suit certain individuals. The electoral boundary commission is set up for one purpose, to look after the boundaries according to the Constitution and to ensure that the people are sovereign in these matters and that nothing is done as a means of suiting the particular individual interests of any Member of the House.

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