Jim O'Keeffe (Cork South West, Fine Gael)

I am pleased to support the Fine Gael Bill so ably proposed by my colleague, Deputy Phil Hogan. I should mention the companion Bill, at the same time, as proposed by the Independents, Deputy Maureen O'Sullivan and co-sponsored by Deputies Joe Behan and Finian McGrath. Essentially the principles in both Bills are the same.

Fine Gael believes there should be a provision whereby the by-election would, by law, have to be held within six months of a vacancy arising. Deputy Maureen O'Sullivan's Bill would require the by-election to be held not less than three months and not more than six months after the declaration of a vacancy, so essentially the Bills are very much along the same lines.

What is happening at present is contrary to the spirit of the Constitution. It could be strongly argued that it is also contrary to the letter of the Constitution. Article 16 deals with the issue of membership of Dáil Éireann and Article 16.2 provides that the number of Members shall, from time to time, be fixed by law, but the total number shall not be fixed at less than one Member for each 30,000 of the population. That is a fixed provision in the Constitution.

Article 16.2.3° deals with the ratio between Members and clearly states: "The ratio between the numbers of members to be elected at any time for each constituency … shall, so far as it is practicable, be the same throughout the country". At present, because these three by-elections remain outstanding, the ratio per Member in Donegal South-West is 35,519. That population is being shared between the two surviving Members in that constituency. The ratio in Waterford is 35,510. Both are in breach of the constitutional requirement as regards the 30,000 of the population per Member. In Dublin South the current ratio is 29,676, marginally below the 30,000 figure. In this situation where there are three by-elections outstanding and we have these constitutional requirements regarding the maximum population applicable to the membership of the Dáil as well as the requirement to have the ratio as far as practicable uniform throughout the country, I would say the Government is in breach of the Constitution by its refusal to agree to by-elections being held.

The longer this continues the clearer the breach is and in the event, there is a constitutional imperative on the Government to agree to hold these by-elections. They way to do it is to provide for it by law – either agree them or have a provision in our laws as to the time they are to be held.

There is a provision in the Electoral Act, but it does not specify the time limit. Therefore, the purpose of the Fine Gael Bill is to provide for that time limit and that is what we are asking the House to do tonight. Article 16.7 covers this issue when it states: "Subject to the foregoing provision of this Article, elections for membership of Dáil Éireann, including the filing of casual vacancies, shall be regulated in accordance with law". It does not say "may be", but "shall be" regulated in accordance with law. Again, there is a constitutional requirement to this effect.

The various provisions I have mentioned do not provide for any discretion but rather indicate that since that is the situation, this is what shall be done. The Government is not compliant with those provisions. On that basis I would ask it to think twice about any opposition it might have to this Bill or to the holding of these by-elections. I will say, clearly, that somebody will go to the Supreme Court on this issue with a very arguable case on the points I have made.

How we are to hold by-elections is a matter for debate. We are discussing that in the Joint Committee on the Constitution where we be will talking again, tomorrow, on some of these issues. We have the traditional PR-STV system in Ireland and we have had some very good contributions from various people as to whether that system should be changed. It is interesting that Professor Michael Gallagher of TCD has looked at the count-back systems in Malta and Tasmania, which would not work here at all. He is also looking at co-option, such as what we have with local authorities, and the European Parliament system, which is perhaps the one we might opt for if we were to change. He summed up by saying: "It may be that, to paraphrase Winston Churchill and democracy, by-elections are the worst possible method of filling casual vacancies in this country, with the exception of all the others".

We shall be hearing more of this in the committee on the Constitution. There was also a very interesting article by Professor Gary Murphy of DCU. He gave interesting evidence to the committee covering the history, background, practicalities and possible alternatives. Ultimately, his submission concluded that filling casual vacancies via PR-STV might be as good a method as any.

That is the method but the question is more about procedure, the process and, most importantly, the timing. It is no good to have a process on which ultimately we all agree unless it can be triggered. There is no procedure in law at the moment for triggering that process, other than by way of a vote in the House – and this can be postponed indefinitely.

I do not intend to go into the Government's reasons for its approach to this issue. It is clear that this Government is clinging on by its fingernails, afraid of its life to face the people on any issue. The ludicrous spoofing we heard when the writs were moved would pass for comedy, but I am not getting into that.

What the Government is doing in regard to this issue is in breach of the Constitution. There is a constitutional imperative that by-elections should be held within a reasonable time. The Government is breaching that and, in regard to both the spirit and the letter of the Constitution, it is not acting constitutionally.

See this speech in context