John Ellis (Fianna Fail)

——she is a member of the commission. This issue can be fought on several legal points and it will have to be fought because it is not just something that affects us currently in County Leitrim but something that affects the entire system with regard to freedom of information. That comes into this because there is no way anybody in the Ombudsman's office could have a right to become involved in this issue. They could not determine it. It is determined in the Act that once the commission ceases to function, it has no further obligations. That might be the case but I wonder if the Department of the Environment, Heritage and Local Government, which was the lead Department in this issue, destroyed the documentation used for its preparation. The Minister of State might indicate whether the documentation has been destroyed. If it has been destroyed, the whole process is a farce and if it is retained, it is a bigger farce in that we cannot get it under FOI or it is not available. I guarantee the House that it is held because whoever wrote the Minister's speech put in the line that stated the first decision taken by the commission was that there should be 166 Members of Dáil Éireann. They could not write the speech without having access to it. Therefore, these sections of the Bill dealing with the constituencies, not the sections dealing with the European or other elections, are flawed. They have been prepared in a flawed manner.

I am trying to determine from the Minister, rather than having the courts determine, first, that the decision was taken that the number would be 166. The Minister confirmed that to me. If that is the position, the terms of reference were broken because those terms stated that if it were at all possible to maintain county boundaries, the number of Deputies could be raised to 168. This is the position in which we find ourselves.

The second issue we must look at is that this information is not being made available. If the documentation is available — the Minister of State's speech could not have been prepared without it — it should be laid before this House so that we might see how people came to these conclusions. For example, we might put Meath West and north Westmeath into the one constituency. The proposal now is that Kells will be put into Meath East and part of Meath East will be put into County Louth. That is totally farcical. If one were to take counties Monaghan and Louth, two three-seat constituencies might have been created that at least adjoined each other.

This is crazy stuff. Who did the calculations? Another issue is that we do not know who prepared this. We know the Secretary General of the Department sat on the commission. I wish to know the name of the statistician who prepared the figures. My information, from the Department of the Environment, Heritage and Local Government, is that it is the same individual who replied to my freedom of information request. The way in which this has been prepared is a total and utter farce. Transparency must come into play. If we do not bring in transparency we delude the electorate and the public. Something must be done in this regard. Nobody should imagine that people will accept this and they cannot be expected to accept it. Will the people of west Limerick who are to be kicked into County Kerry, with all due respect to the acting Clerk and the acting Cathaoirleach, appreciate this? It is the same with the people of County Meath. No doubt many of them will not appreciate being sent to County Louth. The people of south Offaly definitely do not wish to play with Tipperary.

This is part of what we confront. Here is a commission that was given the flexibility to live within its terms of reference. However, it broke every one of them because of the first decision it took. That decision was confirmed to be the first one by the Minister, Deputy John Gormley, in this House in his Second Stage speech. I asked the Minister about this matter at the time but I believe he did not understand the consequences of what I asked. However, I pointed out that if this were to be the first decision taken, the commission would be in breach of its terms of reference.

Who were the back-up people of Ms Tallon, the Secretary General of the Department of the Environment, Heritage and Local Government? My understanding is that the person who replied to my FOI request, or who prepared the letter, was the person who did the calculations. That is wrong, just as it would be if the Ombudsman's office were required to take a final decision on my rights. It is wrong and it is unconstitutional as far as the people are concerned. There are so many points to consider here that I believe it is the Minister's duty — I know the Minister of State can only carry back the message — to ask the President to refer the relevant sections of the Bill for review. These sections are those relevant to the Boundary Commission in respect of Dáil elections. This must be done. Public interest is involved and there is a lack of transparency such as we have not seen in a long time.

There has been negligence in the preparation of this. I say that with a sense of horror because I do not believe there was negligence on the part of all members of the commission. The Clerks of both Houses sat on it and I do not believe they were the people who prepared the figures. As I said, I would love to know the opinion of the chairperson, the Right Honourable Justice Iarfhlaith O'Neill. The commission received a huge number of submissions, 75% of which came from County Leitrim and concerned the prospect of having the county placed as a single unit into the one constituency. Is it possible that anybody who gets such material — 75% of submissions from a national basis — does not realise something is going on? People did not sit down and write e-mails or letters or make submissions to the commission for the good of their health. They could find far better things to do than that but they had an interest in protecting their own county and homeplace. They saw what had happened before.

I cannot understand how the Constituency Commission could have come up with such a report if it had fully explored its full terms of reference. It could not have done so. One can take it that its terms of reference were very clear. These state that the commission had the right to go to 168 Deputies to fulfil its terms of reference.

We have all seen the Bill. It was prepared from information supplied to the Department but in taking this position the Bill has left behind its general purpose which was to provide representation to people. This means representation not only on a local basis, which might not be the proper way to express it, but on the basis of where people come from and what they do. We can easily read the terms of reference, which state:

2(1). Following the publication by the CSO on 26 April 2007 of Volume 1 of the Census 2006, population classified by area, the Constituency Commission was established that day under Part 2 of the Electoral Act 1997. The Commission's remit is to make a report in relation to constituencies. The Constituency Commission is the third commission established since 1997. The report of the first two statutory commissions together with those of five earlier non-statutory Dáil commissions, and reports on European policy are listed in the appendix to it.

This report contains the commission's recommendations in respect of constituencies for the election of Members to the Dáil and the European Parliament. The commission's terms of reference are set out in section 6 of the 1997 Act, which is clear in what it states, namely:

That county boundaries should be adhered to where at all possible and that the total membership shall not be less than 164 and not more than 168. Each constituency shall have three, four or five members. 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 consideration, including significant physical features and the extent of and the density of population in each constituency.

This brings us to the issue of density of population. If these are the terms of reference issued, how does the report stand following the case brought by former Deputy Catherine Murphy and Deputy Finian McGrath? Mr. Justice Clark stated there was little doubt that the results of the census conducted in 2006 show very substantial changes. He said further that both figures must be seen against the fact that on a national level the ratio of population to seats is in the order of 1:25,000. In addition, five constituencies deviate more than 10% from the national average.

In preparing this report the commission was aware of this judgment and by taking it into consideration, which it obviously did, it again broke its terms of reference. That was not included in and was post the issue of its terms of reference. All the regulations put in place regarding the commission have been broken by the report. The terms of reference given by the Minister when it was established were to ensure it would continue and that counties would have representation. One item is missing from the terms of reference, that it should be mandatory that the minimum number of people transferred from one county to another for electoral purposes would be 30,000. That would ensure if part of a county was put somewhere else it would have sufficient people and votes to elect somebody. In the Leitrim case we are divided exactly 15,000-15,000, and no one can tolerate this disenfranchising of the people of Leitrim.

The Minister of State is duty bound to ask his senior colleague to seek an opinion from the Supreme Court on the validity of this report because it is out of synch with the terms of reference of the commission. I hope the Minister of State might be able to tell us, before we deal with further sections of this Bill, the position regarding whether his senior colleague has sought advice from the Attorney General on this. The Attorney General would have given advice on the preparation of the Bill but has the Minister sought advice from him on where he sees this in view of the points raised in the House. If the Minister has not sought it, the Bill should be adjourned and we should ask him to return with the Attorney General's opinion before we take it any further. It is wrong that some citizen will have to challenge this in the courts, putting further expense on the State, rather than have it clarified in the House by the State's legal advisers.

In what I have said here today so far there is definite confirmation that this Bill has not been prepared from a proper commission report. This commission report's legitimacy regarding its terms of reference is in doubt. It is out of context with what is happening. The Minister of State might clarify that point and I will come back in later.