Batt O'Keeffe (Cork South Central, Fianna Fail)

The main purpose of this Bill is to implement the recommendations in the report of the independent Constituency Commission published in January 2004 on revisions to the Dáil constituencies for the next general election. A copy of the report was given to each Member of both Houses when it was presented to the Ceann Comhairle.

It might be helpful for Seanad Éireann if I outline the principal constitutional and legal requirements relating to the establishment and revision of Dáil constituencies and other relevant background to the Bill. Article 16.2.3° of the Constitution provides that:

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 landmark cases in 1961, namely, the High Court case of John O'Donovan v. the Attorney General, and the Supreme Court reference case relating to the Electoral (Amendment) Bill 1961. In neither of these cases did the courts quantify the precise degree of equality of representation required by the Constitution, although Mr. Justice Budd in the O'Donovan case appeared to suggest that a departure of about 5% from strict mathematical parity would be acceptable.

Dealing with the question of equality of representation in the reference case, the Supreme Court stated that it could not lay down a figure above or below which a variation from the national average population per Deputy is not permitted. The court stressed that the practical considerations which ought to be taken into account, and the weight that should be attached to them in departing from strict equality of representation, are primarily matters for the Oireachtas and should not be reviewed by the courts unless there is a "manifest infringement" of the relevant article of the Constitution.

The court concluded that the test to be applied is whether the failure to maintain the ratio between the number of members for each constituency and the population of each constituency involves such a divergence as to make it clear that the Oireachtas has not carried out the intention of the relevant constitutional provisions.

Each revision of constituencies effected between 1961 and 1974 adhered to the limit of 5%, to which reference was made in the O'Donovan case. However, more substantial departures from mathematical equality of representation were provided for in the revisions carried out since 1974, based on the recommendations of independent commissions. The maximum departure since 1980 was 7.89% below the national average in the constituency of Mayo East in 1983.

The proposed constituencies in the Bill now before the Seanad are within this range. 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 result in populations per Deputy in individual constituencies that are significantly out of line with national average representation. Thus, section 5 of the Electoral Act 1997 provides that, on publication of Volume 1 of the Central Statistics Office reports on a population census, the Minister for the Environment, Heritage and Local Government must set up a commission to report on Dáil and European constituencies. The membership of the commission is specified in the Act, together with its terms of reference, which are subordinate to the relevant constitutional provisions.

Article 16.2.2° of the Constitution provides that:

The number of members shall from time to time be fixed by law, but the total number of members of Dáil Éireann shall not be fixed at less than one member for each thirty thousand of the population, or at more than onemember for each twenty thousand of the population.

Based on the population in 2002, this provision would allow for Dáil membership to be fixed within a range of 131 and 196 seats. The statutory terms of reference for constituency commissions in the Electoral Act 1997 provide that the total Dáil membership shall not be fewer than 164 and not more than 168. In accordance with the reports of successive commissions, the total Dáil membership has been fixed at 166 since 1980. Article 16.2.6° provides that no law shall be enacted whereby the number of Members to be returned for any constituency shall be fewer than three. The statutory terms of reference of a commission provide that constituencies must be represented by three, four or five Members.

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 established in 1977 to report on constituencies for the first direct elections of the European Parliament in 1979. The first Dáil Constituency Commission was established in 1980 on a non-statutory basis and such commissions continued to report on constituency revisions under the enactment of the Electoral Act 1997. The commission that reported in January 2004 is the second statutory commission established under this Act.

Volume 1 of the 2002 census reports was published in July 2003. This showed an increase in total population of over 291,000 from 1996, giving a total 2002 population of 3,917,203. Each of the 166 Deputies represented an average of 23,598 persons in 2002. The detailed population figures for each constituency showed serious variances from the national average population per Deputy in many constituencies. A total of 21 constituencies had variances from national average representation in excess of 5% and 13 had deviations in excess of 8%. The most under-represented constituencies were Kildare North and Dublin West with variances of plus 20.73% and plus 16.43% respectively. The most over-represented constituencies were Dublin North-West and Sligo-Leitrim with variances of minus 11.89% and minus 11.01% respectively. Clearly, significant changes have become necessary in some areas to secure equality of representation between constituencies based on the 2002 census.

The Constituency Commission established in July 2003 in accordance with section 5 of the 1997 Act was chaired by Mr. Justice Vivian Lavan. The other members of the commission were Mr. Kieran Coughlan, Clerk of the Dáil, Ms Deirdre Lane, Clerk of the Seanad, Mr. Niall Callan, Secretary General of the Department of the Environment, Heritage and Local Government and Ms Emily O'Reilly, the Ombudsman. I would like to take this opportunity to thank the commission members for the conscientious and impartial manner in which they carried out their work.

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 not be 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. Subject to these provisions, the commission shall endeavour to maintain continuity in respect of the arrangement of constituencies.

The main features of the commission's January 2004 report on Dáil constituencies are as follows. There should be no change in the existing level of Dáil membership, a net increase of one in the number of constituencies from 42 to 43, an extra seat in the Kildare North constituency, which is expanding to a four-seater, and in County Meath with two three-seaters being established where there is currently a five-seater. There should be a reduction of one seat in the constituency of Cork North-Central to four seats and across counties Sligo, Leitrim, Roscommon and Longford combined.

There should be a new constituency configuration in the north Connacht-north Leinster area, with new three-seaters named Sligo-North Leitrim and Roscommon-South Leitrim and a new four-seater named Longford-Westmeath. The new formation brings to an end the breach of a provincial boundary inherent in the existing Longford-Roscommon constituency but involves breaching the boundaries of counties Leitrim and Westmeath. In Dublin, the existing profile of 47 seats spread over 12 constituencies is retained but in a new configuration of three five-seat constituencies, five four-seaters and four three-seaters. The new arrangement transfers almost 31,000 people. The major boundary adjustments affect six constituencies and the minor adjustments affect four others.

The main changes recommended in Dublin are as follows. There should be an extra seat in Dublin Mid-West, which is currently a three-seater, with the addition from Dublin West of approximately 12,000 people in the Palmerstown area. There should be a reduction of a seat in Dublin North-Central, which is currently a four-seater, with the transfer of almost 11,000 people in the Edenmore and Beaumont-Whitehall areas to the Dublin North-East and Dublin North-West constituencies respectively. The transfer from Dublin North to Dublin West of almost 4,000 people in the St. Margaret's-Kilsallaghan area west of Dublin Airport is recommended. The transfer from Dublin West to Dublin North-West of approximately 1,100 people in the Dunsink-Cappagh area and the transfer from Dublin Central to Dublin South-Central of almost 1,000 people in Islandbridge is also recommended. Almost 2,000 people in the Firhouse area west of the M50 should be transferred from Dublin South to Dublin South-West.

The commission's terms of reference include the avoidance of breaches of county boundaries as far as practicable and commission recommendations have been criticised for not keeping to county or provincial boundaries. While attachment to such boundaries is understandable, the terms of reference of commissions are subordinate to the relevant constitutional provisions, which do not refer to counties or provinces. 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.

The Government has accepted the commission's recommendations as a single package of interlinked measures bringing Dáil constituencies into line with the prevailing population pattern in accordance with constitutional imperatives and the associated legal requirements. We can all recognise that it might have been possible for the commission to suggest other solutions. Some alternatives were put forward by Deputies when the Bill was being considered by the Dáil. As an interested spectator, I had much to say on certain matters.

One of the main issues arising was the commission's recommendation that there be two new constituencies of Roscommon-South Leitrim and Sligo-North Leitrim. In this context, we have all been aware of the depth of feeling generated in County Leitrim on this issue since the publication of the report. However, it can readily be seen that the commission had no option but to recommend some change to the existing Sligo-Leitrim constituency as the minus 11.01% variance below national average representation of its 2002 population to seats ratio is more than 3% greater than the largest variance recommended by any commission in the history of the State. The commission has brought forward its proposed solution and its recommendations for Leitrim are in line with constitutional requirements, in particular those relating to equality of representation, and with the commission's statutory terms of reference as set out in the Electoral Act 1997. While acknowledging the depth of feeling in Leitrim, the Government does not propose to depart from the package of recommendations that has emerged from its deliberations. It would be a bad day's work if we were to break with the principle of acceptance of commission recommendations in their totality. To facilitate Members of both Houses in familiarising themselves with the changes to individual constituencies, maps of each constituency were produced with assistance from Ordnance Survey Ireland and were recently circulated to Deputies and Senators.

I now wish to outline the main provisions of the Bill. Section 2 provides that, after the next dissolution, the number of Members of Dáil Éireann will be 166. This is the same number as at present and is the number recommended by the commission. Sections 3 and 4 provide that, after the next dissolution, the members of Dáil Éireann will represent the 43 constituencies specified in the Schedule, as recommended by the commission. This represents a net increase of one in the number of constituencies compared to the existing constituency formation, which remains in force for the purpose of any by-elections up to the time of the next dissolution of the Dáil.

Section 5 provides for the repeal of the Electoral (Amendment) (No. 2) Act 1998 which specifies the existing Dáil constituencies. The repeal will come into operation on the next dissolution of the Dáil. The Schedule contains the formal definition of the 43 constituencies, the main details of which I have already set out for the House. In summary, it provides for the creation of five new constituencies, the replacement of four existing constituencies, changes to 23 constituencies and the retention of 15 existing constituencies. Overall, 12 five-seat constituencies, 13 four-seat constituencies and 13 three-seat constituencies are proposed.

Section 6 addresses a technical issue that has been raised by the Standards in Public Office Commission in regard to the definition of election expenses for the purposes of the Electoral Act 1997. Paragraph 2 of the Schedule to that Act sets out certain items that are not to be regarded as election expenses for the purposes of the Act. Following the High Court and Supreme Court decisions in 2002 in the Desmond Kelly case, section 33 of the Electoral (Amendment) Act 2004 deleted from paragraph 2 the reference to services, facilities and so on provided out of public funds. The effect of this deletion is that, in accordance with the courts' rulings, such services are now reckonable for the purpose of making statements of election expenses to the Standards in Public Office Commission.

However, the section 33 deletion was inadvertently drafted to also remove a number of other items which were not at issue in the court cases from paragraph 2 of the Schedule. These items include free postage provided for candidates, the litir um thoghchán; a service provided free by an individual or by an employee of a political party; normal media coverage; and the transmission on radio or television of a broadcast on behalf of a candidate or political party.

It was never intended to provide that these items would be regarded as election expenses for the purposes of the 1997 Act. The present Bill redresses the situation by inserting a subparagraph in paragraph 2 of the Schedule to the 1997 Act clarifying that the items at issue are not to be regarded as election expenses at presidential, Dáil or European elections, thereby returning to the position in respect of these items before enactment of the 2004 Act.

Before concluding, I wish to address the suggestion made in the Dáil and elsewhere that because the next census will take place in April 2006, we will require a further review of constituencies before the next general election. This view is based on the assumption that a constituency review can take place using the data in the preliminary census report which is usually published by the CSO within a few months of the census being held. However, it is the CSO publication Volume 1 — Population Classified by Area which contains the necessary final data to enable a constituency commission to undertake a review of constituencies in accordance with the relevant legislative and constitutional requirements.

The CSO states clearly that the initial figures in a preliminary report containing provisional information are subject to revision and are not to be regarded as having statutory force. I hope Senators will agree that it would not be the correct approach to ask the commission to operate and make recommendations on a basis other than the final census results. Still less should the Oireachtas be asked to evaluate a commission report prepared on such a basis. Moreover, the case law in the area supports the approach we are following.

As I mentioned earlier, following the census carried out in April 2002, Volume 1 was published in July 2003. On this basis, the constituencies set out in the Bill will apply at the next general election. In conclusion, this is a short but extremely important Bill for existing and prospective Deputies, the electorates they serve and the democratic process as a whole. I commend it to Seanad Éireann.