Pushing the Boundaries

To the eye of the constitutional lawyer, the current furore – if it can still be so called – over the alleged need to revise the current constituency boundaries in the light of the preliminary census figures, is a delicious nexus of complex legal issues. The simple question for us is this: would the Opposition be successful before the courts if they went down that path? If such a fiendish problem – and that it is – were presented to a beleaguered first year law student, the answer the diabolical examiner would be looking for is ‘No’. Well, ‘No – probably’, as it is impossible to predict exactly the answer the courts would prefer; nonetheless, the arguments rack up against the Opposition.

Before we get to the meat of what the Constitution actually says, we must delve deep into our bag of lawyer’s tricks and pull out two important legal principles: the Presumption of Constitutionality and the Separation of Powers.

The first of these two ominous sounding devices provides that every law passed by the Oireachtas is presumed to be in accordance with the Constitution, until proved otherwise. In the present context, that means that the Electoral Act passed in 2004 benefits from the presumption. This has two effects: firstly, the burden of proof is against the person who is attacking the Act (in other words, they have to show that the Act is unconstitutional); secondly, any legislation, where more than one reading is possible, is interpreted in a manner which would make it constitutional.

The second principle is one with which most readers will be familiar, if only vaguely. It is a disarmingly simple piece of political science: there are three branches of Government – legislative (the Oireachtas), executive (the cabinet) and judicial (the bewigged ones in the Four Courts) – which, in their own ways, act as checks and balances on the others; but if they are to act as checks and balances, it follows that they must be independent: the legislature cannot trespass in the garden of the judiciary; judges cannot cross the line which separates them from the executive; and so on. This was made vividly clear by the Supreme Court in the 2001 case of TD v Minister for Education. There, a disturbed teenager argued that the State had not met the Constitutional requirement – and the authorities had most certainly failed – of providing him with secure accommodation. A series of High Court decisions had instructed the Government to act but nothing was forthcoming; eventually, a furious Justice Peter Kelly made a specific order instructing the Minister to act within a set timeframe. The Supreme Court, however, overturned the order. The Court said that the provision of such services was a matter for the executive; it was not for the judiciary to issue specific instructions on such difficult matters of policy. Only where there was “clear disregard” of constitutional obligations could the courts make such a specific order.

How does this resonate in the present controversy? Well, let us examine what the Constitution says and what the Opposition argues. The relevant provisions are in Article 16.2, which begins by saying that “Dáil Eireann shall be composed of members who represent constituencies determined by law”. So far, so innocuous, one might think. Far from it: the words “determined by law” mean that it is solely a task for the Oireachtas to determine constituencies.

But they do not have an unfettered right to draw the boundaries as they wish. The Constitution goes on to say that there shall at least one member for every 30,000 people and not more than one for each cohort of 20,000; and the last part of Article 16.2 requires that “as ascertained at the last preceding census, as far as practicable” the ratio of Teachta Dála to population shall be the same throughout the country.

The Opposition makes two claims. Firstly, at least two constituencies, based on the preliminary figures, have more than 30,000 people per TD; secondly, the difference in the ratios is as much as 15%, far beyond the 8% discrepancy generally thought to be constitutionally valid. The Government counters that these are only preliminary figures and that the real picture will only be painted by the release of the final figures. But who would win in the courts?

The first problem for the Opposition is the Separation of Powers. Firstly, it is clearly the Oireachtas’ task to set constituency boundaries; not that of the courts. Hoist on the petard of their TD logic, the courts would only be able to intervene if the Oireachtas were in “clear disregard” of its obligations. This is where the Presumption of Constitutionality comes in. If the Electoral Act 2004, based on an actual census, is presumed to be constitutional then it would surely take more than preliminary results to displace it. And by having passed legislation based on the “last preceding census” as the Constitution orders it to, the Oireachtas is hardly in “clear disregard” of its constitutional obligations (though it might be sailing close to the wind).

Game over? Not quite. There is a further complication. While the Oireachtas theoretically has the power to set whatever boundaries it wants (and gerrymander in favour of the status quo), in practice, this is not the case. Ever since the infamous ‘Tullymander’ of the 1970s, boundary revisions have been based on the advice of an independent, impartial Constituency Commission – given official status by the Electoral Act 1997. It was their advice upon which the last revisions were based. It is a Convention of the Constitution – a grand term which denotes an unwritten rule so important that it is followed by parties at all points on the political spectrum – that the recommendations will be made law without any alterations. So, the Opposition might ask the courts not to order that boundaries be drawn, but merely that the Constituency Commission be told to examine the preliminary figures.

But the Electoral Act gives absolutely no guidance as to when a Commission ought to be set up. It envisages that the order bringing the Commission to life – so to speak – is a function of the cabinet. This means that the Opposition is back to square one: the Separation of Powers would preclude the judiciary from ordering that the Commission be established, unless there was “clear disregard” of the Constitution, which I don’t think there is. Furthermore, even if the courts ordered that a Commission be set up, there would be no explicit legal onus on the Government to implement its recommendations: courts have no power to insist that Conventions of the Constitution are honoured; they are moral, rather than legal rules.

Even if the courts did not accept the foregoing argument (and my lawyer’s arrogance makes me presume that they would), there is a further argument in favour of the Government. Even if the courts decided that preliminary figures were enough to justify a judgment of “clear disregard”, the weasel words “as far as practicable” might save the coalition. The substance of their argument would be that, less than a year from a general election, it is not possible to redraw constituency boundaries without creating pandemonium. This line of attack is bolstered by a purposive reading of Article 16.2: in other words, we should ask what the intention behind the provision is. Clearly, it is that groups of people should be able to send forward to Leinster House politicians who will look after their interests. If there were a last-minute adjustment to constituency boundaries, politicians who had worked hard on the ground in a particular area for the last few years would be whisked away to different constituencies, leaving Joe and Joanne Soap in the lurch weeks before an election. That would hardly be fair and it would certainly not chime with the intention behind Article 16.2.

So, in closing, the Opposition’s legal prospects look bleak. The political consequences are an entirely separate matter, of course: it might not be palatable for Mr Ahern and Ms Harney to risk – however remote the chances of losing – a humiliating legal defeat on the eve of a General Election. A writ brandished by Mr Kenny on the steps of the Four Courts might in fact just be enough.