A change is gonna come
The Electoral Commission’s Constituency Review Report 2023 will lead to the creation of the largest Dáil in the history of the State. Lesley O’Neill assesses the role and impact of the fledgling commission on Ireland’s political landscape
Despite its infancy and recent establishment on 9 February 2023, the Electoral Commission has presented a commendable publication in its Constituency Review Report 2023.
Its recommendations are being adopted by Government by way of the Electoral (Amendment) Act 2023, and it will ultimately lead to the creation of the largest-ever Dáil in the history of the State.
The Electoral Commission was established under the terms of the Electoral Reform Act 2022 and operates as an independent statutory body whose remit includes, among other things, both new and existing functions that extend to:
- Explaining the subject matter of referendums,
- Reviewing constituencies for Dáil Éireann and the European Parliament,
- Conducting research on electoral policy,
- Encouraging participation by the public in the electoral and democratic processes of the State,
- Preparation and maintenance of the register of political parties,
- Oversight of the electoral register,
- Regulation of online political advertising, and
- Protecting the integrity of elections and referendums against the dissemination or publication of online misinformation or manipulative online behaviour.
Constituency boundaries
Currently chaired by Judge Marie Baker, the Electoral Commission also comprises four ordinary members and two ex officio members, and has subsumed the functions of the former Referendum Commission.
In addition, it has been given further powers to assess and review constituency boundaries.
It is also empowered to undertake electoral-reform research and has recently (by way of the 39th and 40th proposals to amend the Constitution) publicly encouraged and advocated that citizens exercise their constitutionally enshrined franchise (see articles 12 and 16, Bunreacht na hÉireann).
It is considered welcome that the Electoral Commission functions also extend to addressing online misinformation during electoral events and regulating online political advertising, given the increasing incidence of so-called ‘fake news’ globally.
The commission is empowered to issue compliance notices, and failure to comply with these is an offence under the terms of the Electoral Reform Act 2022.
Under that act, there is also an obligation on the part of online platforms to ensure that online political adverts are labelled as such and are linked to a transparency notice that should confirm, among other things, the identity of the party/person who paid for the online advert and whether the advert itself was targeted towards the viewer.
Census review
On foot of its Constituency Review Report 2023, the Electoral Commission has comprehensively analysed and collated data from the 2022 census, which reviewed the changing demographics and population increases within Irish society generally.
The commission concluded that the current 160-seat Dáil should increase to 174 seats, to ensure and achieve a purposive reading of article 16.4 of the Constitution, which asserts that “the Oireachtas shall revise Dáil Éireann constituencies [at least once in every 12 years] with due regard to changes in distribution of the population”.
The constituency findings within the report were considered and passed by both Houses of the Oireachtas and signed into law by President Michael D Higgins on 19 December 2023 by way of the Electoral (Amendment) Act 2023.
It is in the area of constituency review that the commission has been most prolific in its report, analysing each of the Dáil’s current 39 constituencies and concluding that the current 39-constituency base be increased to 43.
The Electoral Commission recognised in its analyses the final census figures (which showed a population in the State of 5,149,139) and concluded that an increase to 43 constituencies would roughly equate to each TD representing an average of 29,593 people – down from the current 32,182 – and that the increase in the number of TDs itself would come closest to achieving “the optimum level of equality of representation consistent with the constitutional provisions”, adding that its report was “the product of detailed analysis of constitutional and statutory limits and … arrives at a solution which best fits the needs of the country as a whole”.
New Dáil
The new 174-seat Dáil will not, however, come into effect until the dissolution of the current Dáil, which has a constitutional mandate to run until early 2025, if the current Fianna Fáil/Fine Gael/Green Party coalition runs a full five-year term.
Article 16.3.2 of the Constitution provides that the next general election must take place not later than 30 days after the dissolution of the current Dáil.
The Electoral Commission is also tasked under the Electoral Amendment Act 2022 with the additional function of preparing general explanations of the subject matter of the proposal for the referendum concerned, which is an unenviable task, given that such proposals often speak to complex and nuanced legal matters.
Given the proposed referendum on the question of the Unified Patents Court, Electoral Commission campaigns may prove critical and, indeed, pivotal in addressing voter apathy, given the perception that the said referendum is an esoteric legalistic issue entailing a “transfer of jurisdiction in patent litigation from the Irish courts to an international court” that will have little to no actual relevance or bearing to citizens’ daily lives.
Despite Taoiseach Leo Varadkar’s self-described ‘double wallop’ of the ‘no/no’ results in the ‘care’ and ‘family’ referendums held on 8 March, the Electoral Commission’s pre-publicity campaign did see a striking upsurge in voter registration, with some 37,000 additional voters registering in the days preceding the referendums, and is to be strongly applauded.
The continuing role of the Electoral Commission, therefore, in future democratic and electoral systems cannot be overstated in its endeavours to both activate and encourage electorate turnout and engagement, and to convey and articulate legal concepts and abstractions in an ‘easy-to-understand’ manner.
Given the often low turnout for referendums on issues such as Seanad university representation and adoption rights in the 1970s, it is hoped that the establishment of the Electoral Commission, via its outreach and publicity work, will assist in shaking off electoral ennui.
It is anticipated that the commission will be pivotal in the future in encouraging civic engagement and, to this end, it must be acknowledged that it will come to occupy a space as a central party to the democratic and electoral systems of this country.
Following the dissolution of the current Dáil, and based on the recommendations set out in the commission’s 2023 report, Dáil Éireann shall thereafter consist of 174 members and will see the creation of the largest-ever Dáil in the history of the State.
This will be a momentous and historical moment for constitutional lawyers and political analysts alike.
Lesley O’Neill is a solicitor specialising primarily in State property.
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Lesley O’Neill
Lesley O’Neill is a solicitor with Blake & Kenny LLP, Galway