Eamon Gilmore (Dún Laoghaire, Labour)
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I move amendment No. 1:

In page 3, between lines 20 and 21, to insert the following:

"2.—Section 5(1) of the Electoral Act 1997 is amended by the deletion of 'Census Report setting out the population of the State classified by area' and the substitution therefor of 'Preliminary Report containing provisional information on the population of the State including classification by Electoral Area'.".

I thank the Minister for agreeing to recommit the Bill in respect of the amendment. I discussed my concerns regarding the section with him privately and my anxiety that the matter be considered in the House. The issue that arises has been the subject of articles by Shane Coleman in The Sunday Tribune in which he drew attention to the likely outcome of the 2006 census and the consequences it may have for the legislation we are discussing.

The revision of the constituencies recommended by the commission, which the Bill addresses, arises from the 2002 census, which had been delayed as a result of the foot and mouth scare in 2001. However, the Central Statistics Office estimates that the 2006 census will produce a population for the State of approximately 4.15 million as opposed to the 2002 census total of 3.9 million people. If the 2006 census results in a population of 4.15 million and assuming that the number of Members of the House remains at 166, the average population per Member will then be approximately 25,000. Having constituencies based on the boundaries in the Bill will mean very wide differences in the representation from constituency to constituency. For example, the respective populations of Cavan-Monaghan, a five-seat constituency under the Bill, and Louth, a four-seat constituency, will be roughly the same.

The article by Shane Coleman states:

Late last year, political analyst and research expert Odran Flynn analysed the 43 constituencies, and based on available population data, trends and proposed new developments, he estimated the likely population growth in the constituencies by the next census. His analysis suggests that after 2006, a staggering 21 of the constituencies will have a TD/population ratio more than 5% outside the national average. Ten of those will be more than 8% outside the average... Flynn predicts that Dublin West and Kildare North will be under-represented by a whopping 12% by 2006. Other counties under-represented include Dublin Central (by 10%), Dublin North (10%), Dublin Mid-West (9%) and Meath West (7%).

He continues to list a number of constituencies which he claims would be over-represented if the 2006 census results in the population we expect.

Before the House is a Bill to revise the constituencies. If the next general election is held before the 2006 census results are known, we will have no issue — the Bill will remain intact and will be in line with the available census information known at the time the legislation was passed, in which case presumably it would not be vulnerable to legal challenge. However, if the next general election is held after the 2006 census figures are known and it transpires that there are variances in constituency representation in the order I have described, I believe it is highly likely that somebody will challenge the constitutionality of the legislation. We know the Constitution requires that the population ratio must be between 20,000 and 30,000 per Member of the House. However, from cases taken to the courts previously, we also know that the courts expect the ratio to remain close to the national average. If there are very wide divergences from the national average it is likely that somebody will challenge. I do not believe anybody in this House could predict what the courts would decide on the constitutionality of the Bill.

The issue that will arise will centre on how the courts view the provisional census data, which are usually issued approximately three months after the census is completed. This would mean that the provisional census data would be available in July 2006. From the last census the provisional figure, which was published in July 2002, was 3,917,336. The final report showed a population of 3,917,203, which represented a difference across the entire country of only 133 people. This means that on the last occasion the provisional figures published were 99.997% accurate. The argument that has been made that the courts will not accept the provisional figures may not hold as we know the provisional figures are pretty close to the mark. If provisional figures are published in July 2006, people in County Louth, for example, may claim that they are under-represented in comparison with the constituency of Cavan-Monaghan. All that needs to happen is for someone to go to court and claim that the Electoral (Amendment) Bill 2005 is unconstitutional. We could find ourselves in a position where the courts are making a decision on the constitutionality of the constituency boundaries very close to the deadline of a general election — the Kelly judgment was handed down on the day before the previous general election — and that could have had dramatic consequences.

This is a serious issue which needs to be addressed. The constitutionality of the Bill is sound in respect of the 2002 census. Whether it will stand a test based on the 2006 census figures is very much in doubt. The courts will have to decide whether to rely on the provisional figures or the official figures. The estimate is that there will be a population increase of 250,000 in the four years to 2006. Due to development in the wider commuter belt around Dublin in recent years, it will have a huge impact on the proportion of the population to Members of the House.

I propose the amendment to address this issue. I do not think anybody — Members of the House, prospective candidates, political parties or the public — wants a situation where the next general election is engulfed by court cases on constituency boundaries. Who knows what decisions the court will make?

Fergus O'Dowd (Louth, Fine Gael)
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I welcome the discussion on this amendment which deals with proportionality and fair representation in the House. It will not be a problem in the future for the Minister because the next census will be taken when we are in Government. It is a serious matter. Whatever benchmark is used for the provision of statistics, I presume that when the Act is due for change the same formula would apply. It would be significant if that formula were changed. I would like to think that the ship sails for the next general election based on the present boundaries.

Deputy Gilmore's amendment referred to classification by electoral area and he spoke about the east of the country. I represent Drogheda in County Louth, yet there is very significant growth in the parts of Drogheda that are now in County Meath. There are 4,000 to 5,000 people in Drogheda who are now in County Meath. Estates like Rosevale in Drogheda are split in half. In another estate, house No. 21 is in my constituency and house No. 22 is in County Meath. The relationship between electoral boundaries——

Dick Roche (Wicklow, Fianna Fail)
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I am tempted to say that the residents of No. 22 have all the luck, but that would be very unkind.

Fergus O'Dowd (Louth, Fine Gael)
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I do not know. They voted for Deputy McEntee, so I had to let them do that. Electoral boundaries for local elections are not necessarily the same boundaries for national elections. There is a growing population in the borough council area of Drogheda which gets all services from that local authority, yet votes in the constituency of County Meath. That does not give it fair representation.

I do not have a problem in principle with Deputy Gilmore's amendment. The issue is whether there is any undue delay by the Government in this instance in comparison with the decisions of other Governments on boundary changes. If the Government is doing something unreasonable, it should be struck down by a court, but if it is not, then we must accept that. However, I understand the basic point. Louth has basically the same population as Cavan and Monaghan, yet it has one less Deputy.

I welcome this debate and we should perhaps widen it later to deal with the fact that constituency boundaries can sometimes be breached by local authority boundaries. The local authority boundaries in a fast growing population ought to be included in the environs of the town to which the population belongs.

Arthur Morgan (Louth, Sinn Fein)
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In rising to support this amendment, I also acknowledge the willingness of the Minister to allow it to be discussed. I hope that he accepts the amendment because Deputy Gilmore made a clear and well researched point on the difference between the census report and the preliminary report. The census report usually extrapolates other information besides the population. The initial preliminary report deals primarily with the actual population and is arrived at very quickly. If we in this House are to present a fair case to every constituency, then we should seek to arrive at the information available at the earliest possible opportunity. In this case that would be the preliminary report. The margin of error in that report, as was pointed out earlier, is around 130 people, which is minuscule. However, the consequences of not dealing with it could disenfranchise a constituency of appropriate representation for a period of a full five years. That would be unfair.

I hope the Minister accepts this amendment to attach the provisional census report, which is only one step behind the actual census report and is accurate. I do not anticipate that I will go to the High Court to extend the boundary in County Louth, but Deputy Gilmore is absolutely correct. We border on requiring a five-seat constituency to achieve adequate representation. As a four-seat constituency, Louth is the most under-represented statistically in the State. I do not make the case simply because I am one of the four Deputies from Louth, but would make the point if it were true of any constituency. I make the point to demonstrate the divergence to which Deputy Gilmore has already alluded. I support the amendment and hope the Minister is in a position to accept it.

Catherine Murphy (Kildare North, Independent)
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I support the amendment. As Kildare North is one of the few constituencies to which a seat will be added, Members may question why I support Deputy Gilmore's proposal. Deputy O'Dowd gave the reason when he said what we sought was fair representation. Not only is it possible that someone will go to court to prove representation is not fair, the preliminary figures may well prove both Kildare South and Kildare North to be in breach of the minimum level of representation.

A subject at which I was always reasonably good in school was mathematics and I have added up the population figures for those moving from Kildare South to Kildare North and the number of house starts multiplied by three, which is the accepted figure, from 2002 on. The figure I have calculated is very close to 30,000, which is worse than the figure adjudicated on in the constituency revision. The population of Kildare has consistently grown over the years. On one occasion, the number of seats in the then Kildare constituency increased from three to five. The number of seats in the county has changed after almost every census of population in the recent past.

There is an element of underprovision in the terms of reference for constituency changes in the failure to use a population minimum of 20,000 as the benchmark rather than an approximate average. If a 20,000 minimum were used, it would avoid crises and potential court challenges. It is not difficult to do the maths in this instance and arrive at a figure of approximately 30,000 in both Kildare South and Kildare North. Not only is there the potential for a court challenge, there is also a breach of constitutional provisions. In the circumstances, a court challenge is almost certain to succeed.

There is a need to establish four seats in both Kildare constituencies without the transfer of additional population from Kildare South to Kildare North. People in the rural part of Kildare North never really know who is representing them, which is not especially positive. They are in one constituency at one election and in another at the next. One can almost certainly predict they will be transferred back to Kildare South at the next general election given the way the numbers are stacking up. It will be very difficult to ignore the figures if they are published in July 2006, at which time Kildare will be the county on which to focus for breaching the 30,000 threshold. On those grounds, I commend the amendment.

Dick Roche (Wicklow, Fianna Fail)
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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.