John Ellis (Fianna Fail)

I note the Minister of State's reply. He did not state whether or not he was going to ask his senior colleague to seek clarification from the Attorney General on the position concerning the preparation of the commission report. If we are to progress this further, this clarification must be got. The Members of this House are entitled to get information from the chief law officer, as far as the Government is concerned.

I want to make quite clear that it was with the senior Minister, Deputy Gormley, that the matter was raised. I cannot understand why he has not sought clarification from the Attorney General and I cannot understand why his officials did not ensure he did so because that was the point we raised on Second Stage. I understood that he would do so. I raised with him on Second Stage the point that if the decision taken was, first, that there were only going to be 166 Members, the commission had broken its terms of reference which stated it was to explore all avenues, up to 168 Members, to ensure the county and geographic boundaries were not broken. These boundaries have been broken right across the board.

Another matter which arises is that section 6(1) of the Electoral Act 1997 states:

It shall be the function of a Constituency Commission to make a report in relation to the constituencies for—

(a) the election of members to the Dáil, and

(b) the election of representatives to the European Parliament.

Section 6(2) states:

In preparing a report under subsection (1)(a) a Constituency Commission shall, in observing the relevant provisions of the Constitution in relation to Dáil constituencies, have regard to the following:

(a) the total number of members of the Dáil, subject to Article 16.2.2° of the Constitution, shall be not less than 164 and not more than 168.

That decision was taken when the population was 20% less than it is now. Therefore the terms of reference for the 1997 Act are questionable. If that were to be followed through, proportionally we should be heading towards a figure of 180 Deputies. I am not saying some members of the public might not appreciate this but there is definitely a question mark over the entire electoral basis on which this commission reported. It is out of date. As I said earlier, the commission used a judgment which was handed down after its establishment and after the terms of reference were in place, as part of its justification for doing what it did. I wonder whether one could have a situation whereby terms of reference might be amended by a court decision. That needs to be looked at.

The Act makes it quite clear that "the breaching of county boundaries shall be avoided as far as practicable". It says that "each constituency shall be composed of contiguous areas" and "there shall be regard to geographic considerations including significant physical features and the extent of and the density of population in each constituency". That confirms what I have said that the terms of reference of the commission were not adhered to. It also says, with reference to the famous Murphy-McGrath judgment, that the commission would not have been entitled to consider that as part of its deliberations. It is obvious, however, that it did because that has been said here and it has been confirmed.

The provision, "there shall be regard to geographic considerations" goes without doubt. As for density of population, either it is sacrosanct or one must consider the geographic spread or the density. One cannot have the two. One can have one but not both because one cannot have the density of population in each constituency and the geographic spread. In rural Leitrim, for instance, there is no comparison in the density of population vis-À-vis Dublin. I said earlier that if one wants to move from one end of a constituency in Dublin to another, it takes about 15 or 20 minutes. From Tullaghan to Arva is about 70 miles, and that is the length of County Leitrim.

Representation as far as the need of the public is concerned is not considered at all. The Electoral Act 1997 states clearly in section 6(2)(e): "there shall be regard to geographic considerations including significant physical features". Physical features mean mountains and rivers and everything else. Whenever our predecessors determined the counties, some people in Leitrim wondered how they ended up with one half cut off by County Cavan. One cannot go from one end of Leitrim to another and stay within the county unless one travels by water. One can only travel on the River Shannon if one wishes to remain within the county. On the southern side one must go via County Roscommon and on the northern side one must go through County Cavan if one wants to get from one end of County Leitrim to the other. People wondered at the time why we were not put somewhere else, but what was done was done.

It goes back to what I have been saying. We are trying to debate something on Committee Stage where the clarifications that were sought on Second Stage have not been given by the Minister. I do not blame the senior Minister for this because the officialdom in his Department should have advised him to obtain the official position from the Attorney General's office. That was not done and it means we cannot finish the business today one way or another. We will have to get a report from the Attorney General and the Minister before we can progress to Report and Final Stages. I am definitely convinced this will have to be done.

I note the Clerk is present and while I do not expect the Clerk to say anything, the Clerk was privy to what went on. I know officials are sworn to secrecy and one must live with that, but if it was first decided by the commission that there should only be 166 Deputies, then its report is negligent and flawed. If the Department says that everything is shredded, and it is a pity it did not shred other things as quickly as its seems to have shredded these files, perhaps the only way this can be determined is by access to the full report. I am convinced the full report is still available because whoever wrote the Minister's speech must have had access to it. It is as clear as night following day.

The main feature of the commission's report on Dáil constituencies was to the effect that there should be no change in the existing level of Dáil membership, namely, 166 seats. I specifically asked the Minister after he made his speech in the House whether he could confirm for me that this was the position and he said "Yes". If that is the position, the commission report is flawed because it did not consider all the options open to it. That is the point I definitely want to make as far as this whole business is concerned. The commission should have examined the possibility of going to 168, or going back to 164 if need be in order to live within its terms of reference regarding the representation per member. We should not take this business any further until such time as we get a definitive legal opinion from the Attorney General on the method that was used. Otherwise will it mean that I or someone on my behalf will have to decide to give lawyers another €200,000 and call on members of the commission to give evidence? It should be remembered that they will have to give evidence on this if it goes to court for the simple reason that it was they who took the decision. If the decision was that the figure should be 166 and that was the first decision taken, then the commission report is flawed because all other avenues were not explored.

As far as I am concerned I will oppose this Bill going through all Stages today on the basis that we should wait for Report Stage to get a report from the Minister.