CATHERINE MURPHY and Finian McGrath emerged from their High Court hearing into the bright sunshine on Thursday afternoon and looked a little unsure as to how to react to the judgement handed down by judge Frank Clarke.

Their reaction was understandable - after all, the judge found in favour of the state - but Murphy and McGrath should have no doubts about their achievement. In the words of their eminent senior counsel, Gerard Hogan, they may have lost the battle, but they won the war.

Presuming the next minister for environment does his duty, Clarke's excellent and very detailed judgement should ensure that Murphy and McGrath will ultimately achieve what they set out to do - ensure that, in the next election, there will be no repeat of what happened two weeks ago when voters elected TDs to constituencies that were completely in breach of the constitution.

As readers of the Sunday Tribunewill be well aware, as many as 11 of the 43 D�il constituencies failed to meet the constitution's strict requirement that every constituency have, within reason, the same ratio of TDs to population.

The figures showed that three quarters of a million people in Dublin West, Dublin North, Meath, Louth, Kildare South and Laois-Offaly were living in constituencies that would not return enough TDs to represent them as equally as other constituencies.

Judge Clarke found that the variance from the average population-to-TD ratio nationally in at least seven constituencies was outside the constitution. In fact, he suggested that the traditionally accepted variation from the average of plus or minus 5% may no longer be appropriate and said a variation of plus or minus 1.6% may be a more appropriate benchmark based on current population levels.

But the judge rejected suggestions that the government should have used the preliminary census figures - which were published almost a year ago - to redraw the electoral boundaries in advance of last month's general election.

While he accepted that there was unlikely to be any significant difference between the preliminary and final figures and that the preliminary figures may be "standoverable", he ruled that when the constitution referred to the last preceding census, it was the final figures that were the benchmark. However, he stressed there was an "urgent burden" on the Oireachtas to address the constituencies in the wake of final census figures becoming available, particularly when there was a high variance from the average across a number of constituencies.

Contrary to the government's claim that it was not able to act to set up a boundary commission until the full final figures, including a breakdown on electoral division level, were published on 29 April, the judge found that those figures were actually available from the CSO on 29 March, even if they were not published until some weeks later. But he did reject the argument that it would have been possible to redraw the constituencies between 29 March and the dissolution of the 29th D�il and then fight the general election on the new boundaries. This timescale was not practical given the importance of the public having confidence in the process, he said, and therefore found that the Oireachtas was not, in fact, in breach of the constitution.

However, again emphasising the urgent constitutional imperative, Clarke found that other measures could reasonably be taken to reduce the time lag between the final figures being made available and the constituencies being redrawn. Specifically, he recommended that, given their accuracy, there was no reason why the Oireachtas should not consider using the preliminary figures to begin work on redrawing the constituencies. He stressed that the constituencies would only be actually changed when the final figures are published.

But, given that there is unlikely to be any significant fine tuning required after the final figures become available, the use of preliminary figures for "preliminary work" would allow the new constituencies "to be recommended to the Oireachtas very quickly".

The judge also warned that if the Oireachtas did not take appropriate steps to ensure a minimum delay in changing the constituencies, it might be appropriate for the courts to take further action.

It is important to stress that, in relation to changing the Electoral Act 1997 to allow for the process to begin with the publication of the preliminary figures, Clarke was making a recommendation, rather than a ruling. But it is a recommendation that the incoming environment minister will find very difficult to ignore. If such a change is made, it could have a very real impact on the constituencies for the next general election and raises the prospect of two separate changes in the boundaries between now and then.

A boundary commission has already been commissioned by minister Dick Roche based on the recently published final population figures, and is due to recommend a redrawing of the constituencies later this year. However, if the D�il runs its full term until 2012, there will be another set of new census figures available before then. The preliminary figures for the next census in 2011 will be available in July of that year at the latest. Based on Clarke's recommendation, preparatory work would begin for a second redrawing of the constituencies at that point, allowing a for a speedy redrawing of the constituencies when the final figures are made available no later than March 2012. There is a strong case to be made that, given the level of preparatory work that will be done leading up to March, there will be sufficient time to change the constituencies in advance of a May or June general election (assuming the D�il has run its full term).

While this might not please the main political parties, it would ensure that the election is fought using constituencies that are representative and constitutional. And the next government has been duly warned that if it fails to take the appropriate steps to change the constituencies quickly, the courts may take further action.

Catherine Murphy and Finian McGrath have done the state some service.