Taoiseach caught between rock and a hard place on election date

IS THERE a possibility we might be about to have an unconstitutional general election? Of course, it’s never happened before in the history of the State.

And it would take the power and majesty of the Supreme Court to settle an issue like that rather than a mere columnist with the Irish Examiner.

But the timing of the election, at least what we know of it, raises the distinct possibility that it may indeed be in conflict with the requirements of the constitution.

The way politics is shaping, the Government is going to need the best timing it can get. Anyone who watched Enda Kenny’s speech on Saturday night last would surely be in no doubt that this is a man capable of leadership.

It wasn’t just the best speech of his career, it was one of the best televised leader’s addresses I’ve seen — powerful, moving and engrossing. Not just good politics, good television as well. You saw a man at ease with himself and in touch with the needs of the time.

It’s one of the adages in politics that you should never give a hostage to fortune, but all the great leaders are prepared essentially to put themselves on the line. And Kenny did that with his promise that he would only seek re-election as Taoiseach if he delivered on his “contract with the people”.

The last thing the Government would have been expecting is to face an alternative government led by the sort of passion displayed by Kenny on Saturday night, coupled with the heavyweight political qualities already shown by Pat Rabbitte.

There’s no doubt whatever that the two opposition leaders have positioned themselves brilliantly for the start of the campaign, and that will be a major worry for the Government.

On the Government side, there had been a growing realisation that the timing of the election could be made to coincide quite brilliantly with the amazing developments in the North.

Ian Paisley — smiling, genial, good-natured Ian Paisley — may well be down to visit the Taoiseach in Dublin over the next few days as a precursor to taking on the job of First Minister in Northern Ireland in the first couple of weeks in May, with Martin McGuinness as his deputy. (There was a time not so long ago when you would only write a sentence like that if you were expecting the men in white coats to come and get you).

No doubt Tony Blair, as part of his farewell tour, could well be persuaded to Dublin for one last summit before he goes.

But there’s a problem, the sort of problem that could become a crisis. At the end of this week the Dáil goes off for two weeks’ holidays.

It’s due to resume on April 24 and could be dissolved any time after that. If the Government, and especially the Taoiseach, wants to capitalise on the impression of senior statesmanship that historic developments in the North can convey, the Dáil will be dissolved within a day or two, so the election can coincide with all that history. So, at least, goes the general expectation — it’s the Taoiseach’s prerogative to go to the President whenever he wants to. That’s what the constitution says.

But the constitution also says:

(1) Constituencies must be revised by reference to the population figures as ascertained by the last preceding census; and

(2) the ratio between the number of members 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.

And there are huge differences between the constituencies right now. We’ve known that since the preliminary report on the last census was published by the Central Statistics Office (CSO) last July.

Here’s a flavour of what that preliminary report said: “The constituency of Dublin West, which is located within the county of Fingal, showed the greatest change in population (+26.8%) between 2002 and 2006. Based on the 2006 census results the average number of persons per TD now stands at 30,933. Also in Dublin, the population of Dublin North, which is predominantly in Fingal, increased by 21.4% to leave the average number of persons per TD at 29,996.

“The population increases observed for Co Meath are also apparent in the growth in Meath East (+23.4%) and Meath West (18.9%). Other notable increases were in the constituencies of Kildare South (+17.7%) and Cork East (+15%).”

THAT’S what the preliminary report said. And the final, detailed report, entitled ‘Volume 1 — Population Classified by Area’, is due to be published on April 26, two days after the Dáil resumes — maybe even on the very day the Taoiseach intends to dissolve the Dáil.

That publication date also has been known for months.

The final report will confirm the findings in the preliminary one, subject to tiny corrections. And under the law of the land, the publication of the final report by the CSO is a trigger for actions that have to be followed.

Section 5 of the Electoral Act 1997 says that “on publication by the CSO, following a census of population, of the census report setting out the population of the State classified by area there shall be established by the minister, by order, a constituency commission”. It is a ministerial order and doesn’t require an Oireachtas resolution, so it comes into immediate effect.

The function of the minister, according to the Department of the Environment’s own website, is to “establish a constituency commission to review and report on Dáil and European constituencies in accordance with the relevant constitutional and statutory requirements … as soon as the CSO publishes the census report setting out the population of the State classified by area. Under the Electoral Act 1997, the commission will be required to report to the ceann comhairle as soon as may be and, in any event, within six months of its establishment … ”

So, in order to comply with the constitution and the law, the Environment minister, at almost the precise moment the Dáil comes back for maybe only one or two days, will trigger the process for revising the constituencies.

He has to do that in order to make those constituencies compatible with constitutional requirements, and especially because they aren’t compatible at present. But he will do so in the clear knowledge that the commission will have no impact on the general election. And the election will be held on the basis of constituencies that we already know aren’t compatible with the constitution.

The nightmare scenario for the Government is that a successful legal challenge could then be mounted to constituencies that are clearly not in keeping with the demands of the constitution.

The best way to avoid that, quite possibly, would be to dissolve the Dáil before the publication of the CSO report and all the actions it triggers. That could of course mean a general election held in the shadow of Enda Kenny’s triumphant weekend, and before the seismic shift in the North is truly visible.

It’s a tricky decision that faces the Taoiseach, isn’t it?