RADICAL SEANAD REFORM THROUGH LEGISLATIVE CHANGE CONSULTATION PAPER Proposals for Measures to Transform Seanad Éireann Without The Need For Constitutional Amendment
RADICAL SEANAD REFORM THROUGH LEGISLATIVE CHANGE CONSULTATION PAPER
Proposals for Measures to Transform Seanad Éireann Without The Need For Constitutional Amendment
Table of Contents
Foreword Executive Summary 1. The Historical and Constitutional Context 2. Talk and Inaction on Proposals for Seanad Reform 3. The Abolition Proposal 4. International Comparisons 5. The Value of A Second Chamber 6. Reform without Constitutional Amendment 7. Options for a more Democratic Seanad through Legislative change
8. Options for a more Effective Seanad through Legislative change
9. The Cost Argument
FOREWORD We publish this paper to initiate a consultation on implementing radical Seanad reform through legislative change. We do so within the context of a promise by the current Government to put the question of whether Seanad Éireann should be abolished or retained to the people in a referendum at some point in 2013. Our contention is that Seanad Éireann, through its diverse membership, substantive deliberations and legislative impact, has consistently made an important contribution to our parliamentary process, thereby enhancing the quality of our democracy. As one of the institutions of governance in this State, Seanad Éireann has provided a system of checks and balances to the exercise of political power. Our starting point in this paper is that the current structure and electoral system of the Seanad are not consonant with what was envisaged in the Constitution. To the extent that the Seanad may be said to be unrepresentative and of limited effectiveness, we contend specifically that reform through legislation would transform Seanad Éireann and enable it to fulfil the role envisaged by the designers of the Constitution. In the following pages we set out the constitutional background to this current debate, note the extensive proposals for Seanad reform since 1937, challenge the abolition proposal, discuss the value of a second chamber supported by international comparisons and argue that substantive reform can take place within constitutional parameters through legislative change. We offer a number of options for legislative change to bring about a more democratic and effective Seanad. Our preference at this stage is to extend the Seanad franchise on the basis of one person one vote so that every voter could register to vote on one of six panels: either the University panel, which would have been extended to graduates of all third level colleges, or one of the five vocational panels. We suggest that the Seanad’s effectiveness could be enhanced by expanding its role in scrutinizing European and secondary legislation. The abolition of Seanad Éireann, which we oppose, would require a dramatic constitutional reconfiguration including significant amendments to the operation of Dáil Éireann and the legislative process. We argue that Seanad reform by means of legislative change offers a more expedient and effective means of bringing about genuine reform. This document is offered as a non-partisan initiative to stimulate debate about the need to both retain and reform Seanad Éireann through legislation. We are a small group of people with diverse ideological backgrounds who share a common interest in transforming the Seanad. This document is the first step in a consultation process, which it is hoped will involve current and former members of the Oireachtas, the nominating bodies for Seanad Éireann and other stakeholders, the political parties, legal and political science specialists and the public generally, on how reform of Seanad Éireann should be advanced. We intend that this consultation process will lead to a Seanad Reform Bill that could enjoy the support in the first instance of Seanad Éireann itself and then of Dáil Éireann. We look forward to receiving your views on email@example.com Senator Feargal Quinn Michael McDowell Joe O’Toole Noel Whelan Senator Katherine Zappone September 2012
The authors wish to acknowledge the assistance of Liam Dockery BL, Dr. Brian Hunt, Darren Lehane BL, Hugh McDowell, Professor Michael Marsh, Kathryn Marsh, Mark Quinn and Anne Ă“ Broin in the preparation of this consultation paper.
EXECUTIVE SUMMARY Chapter One of our document outlines the historical and constitutional context of Seanad Éireann. Though Ireland’s first national assembly had become a unicameral body in 1936, the 1937 Irish Constitution made provision for a second house in the Oireachtas. This represented the young nation’s desire to broaden participation in the legislature, to ensure representation for particular minorities and to provide an additional dimension to law making by including those with particular knowledge and expertise in defined areas. A sketch of the system currently used to elect Seanad Éireann is provided, and critiqued, followed by a discussion of the Seanad’s integral role in the legislative process as laid down in the Constitution. Ireland’s ratification of the Lisbon Treaty led to each House of the Oireachtas being conferred with significant additional powers in matters concerning European affairs. We note that seventy-five amendments would have to be made to the Constitution if Seanad Éireann were to be abolished. Chapter Two identifies various reports and proposals for Seanad reform since 1937, discussing in detail the most comprehensive analysis of the role of the Seanad, which was that carried out by the Sub-Committee on Seanad Reform chaired by Senator Mary O’Rourke in 2004. We highlight the fact that all eleven reports call for reform (not abolition) and the authors argue that reform is imperative for the Seanad to make a viable and distinctive contribution to the legislative process. The difficulty is not with bicameralism per se, but rather with the practice of thwarting the Seanad’s original representative and constitutional functions by over-politicising its representation and underutilising its functions. As readers will be aware, in spite of all the calls for reform, no Government acted upon them. Chapter Three discusses the current proposal to abolish the Seanad, which has its origins in the speech given by Enda Kenny, TD, Leader of Fine Gael, to his party’s Presidential Dinner on 17th October 2009. We suggest that this and subsequent proposals for abolition do not stand up to serious academic scrutiny. Chapter Four introduces our case for the retention of a reformed Seanad Éireann. Bicameralism is the parliamentary structure of the world’s most influential and successful democracies. The majority of Europe’s powerful and politically stable nations have bicameral systems, whereas many of those countries with unicameral systems are recent entrants to the European Union and several of them have emerged from behind the Iron Curtain in the last two and a half decades. Outside Europe, most major nations have bicameral parliamentary systems, including the United States, Canada, Australia, Japan, Russia, Switzerland, India, Brazil and Argentina. The chapter reviews the trends towards bicameralism, demonstrating that more than five sixths of the population of the European Union lives in countries with bicameral parliamentary systems. We note specifically that while Denmark, Sweden and New Zealand have abolished their Second Chambers (referred to in Mr. Kenny’s proposal), these countries are substantively different from Ireland in terms of their political and constitutional contexts. Chapter Five continues to present our rationale for having two houses of parliament. A second chamber allows for broader representation by providing the opportunity for other sectoral and demographic elements, additional expertise and minority interests that may not be adequately represented in the main house. A second chamber also strengthens the parliamentary process by allowing a second review of legislative proposals before they become binding in law and we note that the number of Seanad amendments to bills has been remarkably high. Further, given the diverse expertise of Seanad members it has been an ideal locale for the generation of new legislation. The tradition of substantive amendments and creation of new bills continues in the 24th Seanad. As one of the institutions of governance in this State, Seanad Éireann has provided a system of checks and balances to the exercise of political power. Chapter Six sets the stage for our proposal to reform Seanad Éireann through legislative change. The unrepresentative nature of the Seanad is not something that is mandated by the Constitution. The only mandated provisions are that forty-three members be elected from five panels, three from the National University of Ireland and three from the University of Dublin, all by proportional representation. The precise composition of the electorate for the five panels is now dictated by the Seanad Electoral (Panel Members) Acts (1947; 1954). Recommendations to change the electorate and to extend the remit of Seanad Éireann feature in a number of reports looking at Oireachtas reform. We propose that 7
extensive reform of the representational basis of the Seanad and of its remit could be achieved by legislation. Chapters Seven and Eight outline a number of options to reform Seanad Éireann so that it can become a more democratic and effective chamber, in keeping with the parameters and the spirit of the Constitution. Chapter Seven discusses the electoral system, presenting ways to extend the Seanad electorate, while giving the Seanad a mandate distinct from that of Dail Éireann. For example, legislation could be enacted that would increase the ownership of Seanad Éireann by the citizens of the State through the introduction of a One Person One Vote universal franchise. Another option would be to give effect to the Seventh Amendment of the Constitution and Article 18.4.2 by providing in legislation for one six seat university panel elected by graduates of all third level colleges. This could be combined with alterations in the provisions of the Seanad Electoral (Panel Members) Acts to provide for direct elections to all, or a portion of the forty-three panel seats. An expansion of the electorate through legislative change could be complemented with an overhaul of the nomination process. Chapter Eight offers options to extend the remit of the Seanad and to change its ways of conducting business so that it fulfills more effectively its functions as envisaged by the Constitution. We note that such change can come about both through legislation and through amendments to the Standing Orders of Seanad Éireann. The most obvious ways to enhance the functions of the Seanad are to expand its role in scrutinizing European legislation and reviewing the statutory instruments of secondary legislation. A further gap in the Irish parliamentary landscape is the failure to review laws once they have been in operation for a number of years. The Seanad could play a significant role here in post-legislative scrutiny, in cooperation with the relevant Government departments, by examining whether legislation has achieved the original policy objectives. Chapter Nine provides an assessment of the financial impact of retaining a reformed Seanad.
1 – THE HISTORICAL AND CONSTITUTIONAL CONTEXT 1.1.
The first national assembly established in Ireland following the Act of Union was a unicameral body, Dáil Éireann, which convened in January 1919. It was only in 1922 that our parliamentary system became bicameral with the establishment of Seanad Éireann. The nomination procedure for that Senate was designed to ensure representation for the Unionist minority in the South, with the result that the landed gentry and the ex-Unionist community were strongly and disproportionately represented in the first Senate.
Once established, the “Free State” Seanad enthusiastically embraced its role as a legislature and approached its task of scrutinising legislation particularly seriously1. The Seanad refused to pass one of the first Bills presented to it – the Bill which became the Indemnity Act 1923 - one of the principal purposes of which was to indemnify the British military for acts committed by the Black and Tans. The Seanad also rejected Bills to extend the local government franchise to people over the age of 21, to prohibit the wearing of military uniforms, and to abolish university representation in the Dáil.
From the outset Dáil Éireann was resistant to efforts by the assertive Seanad to encroach upon what TDs saw as being properly their own territory. In December 1923 the Dáil sought to reject a Seanad amendment to the Local Government Electors Registration Bill to extend the local government franchise to people over the age of 21, a clash which gave rise to the amendment of Standing Orders so as to make provision for a conference of the Houses – a device designed to avoid deadlock. Such was the extent of the Seanad’s active role in effecting amendments to Bills that it became necessary to utilise this inter-house conference mechanism on a number of subsequent occasions.
Tensions between the two houses intensified after De Valera and Fianna Fáil came to power in 1932. As De Valera set about implementing the radical constitutional change for which he felt he had a clear popular mandate he met strong resistance from the Seanad. The Free State Seanad also strongly opposed legislation to remove the oath of allegiance and that opposition caused the passing of the Bill to be delayed for almost a year. Seanad activism and his dislike of its composition ultimately led De Valera to abolish the Free State Seanad.
When initially enacted, the 1922 Constitution provided that for a period of eight years it could be amended by legislation alone, without the need for a referendum. This eight-year period was subsequently extended to 16 years2 and it was under this mechanism that the Seanad was abolished3 by De Valera in 1936. His opposition to Seanad Éireann was to the house as it was then composed rather than being a general opposition to the concept of a second chamber. For a short period after this abolition our parliamentary system operated as a unicameral system until the peoples’ endorsement of the Constitution of 1937 provided for the establishment of a new Seanad, this time as a forum intended to provide vocational representation.
The manner in which the Free State Seanad was abolished and the decision to re-establish it, albeit in a different form, in the 1937 constitution is also interesting in the context of the current debate. When the Free State Seanad was abolished in 1936, De Valera clearly indicated that the idea of a Second Chamber was not anathema to him provided it could be shown that a second chamber would be of value
“I can only say this: I hope that in the autumn we will have a measure here outlining a new Constitution. Whether that Constitution is to be based on the principle of a Single Chamber or two will depend upon whether it is possible to devise a Second Chamber, which can be of value and not a danger. If it can be shown how we can constitute a Seanad which, practically, will be of value then certainly we will give such a proposition most careful consideration. If it 4 cannot, then, the Constitution will be introduced with a Single Chamber Legislature.”
1 2 3 4
O’Sullivan explores the impact and effectiveness of the first Seanad in scrutinising legislation in great detail in his seminal work on The Irish Free-State and its Senate (London, 1940), in which he exposes the relatively significant impact which the Seanad had on the shape of legislation at that time. Constitution (Amendment No 16) Act 1929. Constitution (Amendment No 24) Act 1936. Dáil Debates Volume 69, Col 1199. 9
Within months of having abolished the Free State Seanad, De Valera put a mechanism in place to explore alternative options for re-establishing a second chamber. On 9th June he established a Commission, chaired by the then Chief Justice, to consider and make recommendations as to what should be the functions and powers of the Second Chamber of the legislature in the event of it being decided to make provision for a Second Chamber in the new Constitution.
This Commission reported on 30th September 1936. It recommended that the Second Chamber should have the power to regulate its own business and to elect its own chairman; that its members should enjoy the same immunities and privileges as members of Dáil Éireann; that no Bill should be enacted by Dáil Éireann until it had first been sent to the second house for consideration; that the second house should not have a power of veto; and that the refusal of the second house to pass a Bill would only have the effect of delaying the passage of that Bill by three months.5 It recommended that the second house would have the power to initiate any Bill other than a money Bill.6 It also recommended that the Government would have the power to initiate Bills in the second house and noted that “This power could be usefully exercised for the purpose of initiating Bills intended for the Consolidation of Statutes, a form of legislation of which, the Commission is informed, there is an urgent need.”7 It also recommended that to be effective, a resolution for the removal of a Judge or the Comptroller and Auditor General for stated misbehaviour or incapacity should, in addition to being passed by Dáil Éireann, be passed also by the second house.8
The Commission recommended that the number of members of a second house should be fixed at 459 and that it should be composed of persons chosen on account of their ability, character, experience and knowledge of public affairs. It recommended that there should be quotas for women and those competent in Irish.10 It recommended that the head of Government should nominate one third of the Second Chamber and that the remainder should be elected from a panel elected by a College of Electors composed of every person who had been a candidate in the preceding general election for Dáil Éireann. It is apparent from the foregoing that the Commission desired a Second Chamber that would be representative of a broad base of interests and that would play a definite and important role in the affairs of the State.
1.10 On the basis of the Commission report the decision was made to include a second house of parliament in the 1937 Constitution, elected indirectly on a basis other than the universal franchise. As we shall see, however, the number of Senators, the means of its election and its remit as ultimately provided for in the 1937 Constitution differed from the Commission’s recommendations. It is useful in the context of the current debate, however, to note that the initial justifications for bicameralism in Ireland were reflected in the report and that its recommendations reflected a desire to broaden participation in the legislature, to ensure representation for particular minorities and to provide an additional dimension to law-making by including those with particular knowledge and experience in defined areas. The Seanad and The Constitution: 1.11
The role of the Seanad is deeply ingrained in the Constitution and by implication, in the State’s architecture. The establishment of the Seanad is provided for in Article 15.1.2 of the Constitution where it is characterised as being a house of representatives. Its composition is detailed in Articles 18 and 19.
The integral role of the Seanad in the legislative process is set out in Articles 20 - 25. The Seanad also has a role in the instigation of a petition for the holding of a referendum under Article 27. Under Article 33.5.1, the Seanad has a specific role in relation to the removal of the Comptroller and Auditor General. Similarly, the Seanad has a central role to play in the removal of members of the superior judiciary under Article 35. In addition, Seanad officeholders have specific roles assigned to them under the Constitution. For example, under Article 14.2.1, the Cathaoirleach of the Seanad is designated as being one of the three members of
5 6 7 8 9 10
See Commission Recommendation 6. See Commission Recommendation 7. See Commission Recommendation 8. See Commission Recommendation 10. See Commission Recommendation 17. See Commission Recommendation 18. 10
the Presidential Commission. Under Article 31.2 the Cathaoirleach of the Seanad is also a member of the Council of State. 1.13
The various roles of, and multiple references to, the Seanad in the Constitution led Mr. Justice Gerard Hogan (prior to his appointment to the High Court bench) to warn: “The Seanad is of systemic importance to the Constitution as there are several references to the Seanad. There are a number of references to the Seanad that are all interlocked. So, to use a dental analogy, to abolish the Seanad would not be a constitutional filling and more a full root canal treatment with a few extractions.”11
Former Tánaiste, Michael McDowell SC has pointed out that “approximately 75 amendments would have to be made to the Constitution if Seanad Éireann were to be abolished. These 75 amendments include repeal of entire articles of the Constitution as well as more detailed consequential amendments.”12 McDowell argues, “that it would be simpler, given the extent of the amendments involved, to draft an entirely new constitutional document.”
The Current Electoral System for Seanad Éireann: 1.15
The current electoral system used in Seanad elections is complex and is seen by most as unrepresentative. The precise make-up of the Seanad is set down in Article 18 of the Constitution, which provides that the Seanad is to consist of 60 members, 11 of whom are nominated by the Taoiseach and 49 of whom are elected. Of the 49 elected, three are elected by National University of Ireland graduates, a further three are elected by Trinity College graduates and the remaining 43 are elected from five panels of persons having knowledge and practical experience of:
National Language and Culture, Literature, Art, Education and other professional interests; Agriculture and allied interests, and Fisheries; Labour, whether organised or disorganised Industry and Commerce including banking, finance, accountancy, engineering and architecture: Public Administration and Social Services including Voluntary and Social Services
The Constitution provides that between 5 and 11 people may be elected from each panel and the actual number of seats currently on each of the panels is set out in legislation namely the Seanad Electoral (Panel Members) Act 1947 as amended by the Seanad Electoral (Panel Members) Act 1954. These acts detail all matters governing the holding of elections to the vocational panels.
1.17 Responsibility for maintaining a register of bodies entitled to nominate candidates to the panels rests with the Clerk of the Seanad.13 In order to be eligible for registration as a nominating body, an organisation must be concerned mainly with, and be representative of, the interests and services of one or other of the panels. There are currently 33 bodies registered for the Cultural and Educational Panel, 11 for the Agriculture Panel, 2 for the Labour Panel, 43 for the Industrial and Commercial Panel and 15 for the Administrative Panel. 1.18
Within each panel there are two sub-panels, specifically the Nominating Bodies sub-panel and the Oireachtas sub-panel. Each nominating body may nominate a fixed number of candidates for that panel. These candidates comprise the nominating bodies’ sub-panel of the different panels. In addition, four members of the Dáil or outgoing Seanad may nominate one candidate for any panel, but each member may join in only one nomination. These candidates form the Oireachtas (Parliament) sub-panel. A specified minimum number of members must be elected for each sub-panel.
The electorate for the election of Seanad panel members is currently restricted to members of the incoming Dáil, members of the outgoing Seanad, and members of County Councils and City Councils. This means that the electorate for the vocational panel is relatively small. At the 2011 Seanad the total number of such electors was 1,09214.
11 12 13 14
As reported in Sunday Tribune, 18 October 2009. McDowell, “That the Oireachtas is in Dire Need of Reform” a paper delivered at the Liber Society Debate, 29 June 2010. The register for 2010 is available at http://www.oireachtas.ie/documents/nominating_bodies/20100713.pdf See Sean Donnelly’s Election 2011 page 440 11
Election to University Panels: 1.20
The election of persons to the Seanad University Panel is governed by the Seanad Electoral (University Members) Acts 1937 which, among other things, determines the eligibility of persons to vote, the nomination of candidates and the manner of voting. This legislation currently restricts the voting rights to graduates of the National University of Ireland and Trinity College Dublin and associated colleges in two separate constituencies. The Seventh Amendment of the Constitution15 (ratified in 1979) allowed for the introduction of legislation so as to extend voting rights to graduates of all institutions of higher education. Notwithstanding the comfortable passage of this Constitutional Referendum the Oireachtas has never introduced legislation to give effect to it by extending the electorate for the university seats.
Constitutional provision for expansion of the electorate 1.21 The constitution itself envisaged and enabled the expansion of the electorate for the vocation panels. Article 19 states:
“Provision may be made by law for the direct election by any functional or vocational group or association or council of so many members of Seanad Éireann as may be fixed by such law in substitution for an equal number of the members to be elected from the corresponding panels of candidates constituted under Article 18 of this Constitution.”
To date no steps have been taken in legislation to enable such direct elections to Seanad Éireann. Even an extension of the electorate to the extent envisaged by this article, limited as it would be to members of any such “functional or vocational group or association or council” would be very restrictive and would go only a short distance towards the radical transformation of the Seanad which the authors of this paper wish to achieve.
The Seanad’s Legislative Role: 1.21 Article 15.2.1 of the Constitution provides that “The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas”. The Seanad’s role in the legislative process is given further expression in the Standing Orders of the Seanad, which set down the specifics of the various stages of the legislative process. Whilst the legislative process prescribed for the Seanad very closely reflects that of the Dáil, there are some significant limitations on the Seanad’s role in scrutinising Legislation. The most significant of these is Article 20.1 of the Constitution which provides that Seanad Éireann can only make recommendations in relation to a Money Bill and may not propose amendments to such Bills. In addition, there is a deadline of 90 days within which the Seanad must consider all Bills that it has received from the Dáil, the exception being in relation to Money Bills, which the Seanad must consider within a period of 21 days. 1.22 Whilst the Seanad has the power to reject a Bill, this is limited to delaying its passage for 180 days, after which time it is deemed to have been passed. The existence of this power is significant even in circumstances where the government has a majority in the Seanad, since it provides a degree of restraint on the pace of the legislative process and operates to prevent the rushing of legislation or panic law making and instead provides an opportunity for reflection and debate at a calmer and more appropriate pace. 16.
Seventh Amendment of the Constitution (Election of Members of Seanad Éireann by Institutions of Higher Education) Act 1979. The danger of rushed law-making has been widely recited in political science and legal literature. For some Irish specific observations see de Lundras & Kelly in the European Convention on Human Rights Act: Operation Impact and Analysis, Chapter 9. 12
Seanad Éireann’s role in European Affairs: 1.23 Ireland’s ratification of the Lisbon Treaty led to each House of the Oireachtas being conferred with significant additional powers in matters concerning European affairs. These additional powers derive from Article 29.4.8 of the Constitution and also from the European Union Act 2009, and are reflected in Standing Orders 99 to 103 of the Standing Orders of the Seanad. One effect of this is that the Seanad may act independently of the Dáil to oppose efforts by the European Council to act by qualified majority instead of unanimity. Similarly, the Seanad may also oppose the Council’s efforts to adopt legislative acts by the ordinary legislative procedure instead of the special legislative procedure. The Seanad is also empowered to issue a reasoned opinion on whether European Union legislative proposals comply with the principle of subsidiary. In the event that the Seanad then concludes that an Act of the European Union institutions infringes the principle of subsidiary, the Minister for Foreign Affairs is obliged to seek a review of the Act concerned in the European Court of Justice. 1.24 Each House of the Oireachtas can exercise these powers independently of the other. The role of the Seanad in these matters cannot be overridden by the Dáil. These changes amounted, at least in theory, to a significant enhancement of the Seanad’s powers because of its role in European affairs.
Notwithstanding these developments however, in the words of McDowell “…the Irish Parliament has lamentably failed to engage with the European legislative process”.17 He adds: “As presently organised, the Oireachtas is nowhere near being in a position to fulfil the enhanced role envisaged for it under the Lisbon Treaty, let alone to discharge the functions which it has abysmally failed to discharge in respect of our membership of the European Union up to this point. The whole process of transposition of European Union law into Irish law is one which the Oireachtas has, largely speaking, totally abdicated its functions.”
1.25 Other jurisdictions have taken their Lisbon Treaty derived powers far more seriously.18 In the United Kingdom, for example, the House of Lords European Union Select Committee has been specifically empowered to examine European Union documents and other EU-related matters in advance of decisions being taken on them.19
17 18 19
McDowell, “That the Oireachtas is in Dire Need of Reform” a paper delivered at the Liber Society Debate, Dublin 29 June 2010 at p.12. See generally, Annual Report 2010 on relations Between the European Commission and National Parliaments (Brussels, 10.6.2011 COM(2011) 345). For a consideration of how the Oireachtas and some of the European Parliament provide for a role relating to European legislation see Dr Gavin Barrett (ed) “ National Parliaments and the European Union”, Clarus Press 2008 13
2 - TALK AND INACTION – PROPOSALS FOR SEANAD REFORM. 2.1
In spite of having been the subject of many reports that gave consideration to its reform, the Seanad of today remains largely the same as the institution which was established under the 1937 Constitution and provided for in the 1943 legislation.
The many reports and proposals for Seanad Reform have included (in reverse date order); • The All-Party Group on Seanad Reform 2008-2009; • The Report of the Seanad Committee on Procedure and Privileges Subcommittee on Seanad Reform (April 2004); • The Seventh Progress Report of the All-Party Oireachtas Committee on the • Constitution (March 2002); • The Second Progress Report of the All-Party Oireachtas Committee on the Constitution (April1997); • The Report of the Constitution Review Group (May 1996); • The Report of the Committee on the Constitution (December 1967); • The Report of the Seanad Electoral Law Commission (1959); • The Report of the Select Committee on the Seanad Éireann (Panel Members) Bill, 1952; • The Report of the Joint Committee on Seanad Panel Elections (1947) • The Report of the Commission on Vocational Organisation (1943) • Special Report of the Special Committee on the Seanad Electoral (Panel Members) Bill, 1937
Seanad reform has also been the subject of many parliamentary debates.20 It is apparent from those debates that members of previous Seanads not only felt the House should be reformed, but were also conscious that without reform its future existence would be threatened.
In 2004 the Sub-Committee on Seanad Reform, chaired by the then leader Senator Mary O’Rourke, published the most comprehensive analysis of the role of the Seanad to date after a series of public hearings, held in the Seanad chamber itself.21 The work of the sub-committee also involved an analysis of eleven previous reports on the Seanad and the consideration of over 160 written submissions.
It advanced a range of proposals, which it asserted, “should be implemented in their totality as a package” and said, “... we believe that there is an urgent need to accept the political reality that Seanad Éireann really must be reformed if it is to make a viable and distinctive contribution to the economic, social and political affairs of our country.” 22
The O’Rourke report recommended that the Seanad should have 65 members, 32 of whom should be directly elected. It went on to identify four key areas in which it was felt that the Seanad should have a major role. Those areas are:
1. responsibility for holding public consultations on proposed legislation; 2. assessing legislative proposals emerging from the EU; 3. responsibility for reviewing government policy in several areas; and, 4. responsibility for scrutinising senior public appointments.
20 21 22
For example, see: 149 Seanad Debates (30 January 1997); 149 Seanad Debates (5 February 1997); 156 Seanad Debates (24 June 1998); 161 Seanad Debates (3 December 1999); 194 Seanad Debates (11 March 2009); 200 Seanad Debates (20 January 2010); 208 Seanad Debates (15 June 2011). Seanad Sub-Committee on Seanad Reform, Report on Seanad Reform (May 2004). Ibid., at p.4. 14
The proposal that the Seanad should have a significant role in scrutinising European Union Legislation as well as monitoring and reporting on secondary Legislation had also been advanced some years previously by the All-Party Committee on the Constitution in its Second Progress Report on the Seanad23 and its Seventh Progress Report on Parliament.24
In terms of the method of electing Senators, the 2004 O’Rourke Report highlighted some problems with the vocational system on the basis that it fails to produce Senators with strong vocational backgrounds. In the Committee’s opinion, this occurs because the vocational bodies that nominate candidates do not actually have a vote in Seanad elections.
The 2004 Committee were also of the view that if the panel system were to be retained, it would require significant overhaul.25 As a minimalist approach to reform, the Committee suggested that changes could be made to the weightings of existing panels to reflect the changes in Irish society that have taken place since 1937. A somewhat more radical approach would involve leaving the panel system intact but reforming the system of nominating bodies. According to the Committee, the most radical approach would involve identifying and defining a new set of panels, together with new nominating procedures and a new electoral system.26
While the 2004 Sub-Committee Report was welcomed by the government of the day, and endorsed by the Seanad, and while a working group on implementation was established, to be chaired by the Minister for the Environment, none of the Committee’s proposals have been advanced.
2.10 The various reports examining the role of the Seanad all agree in concluding that the difficulty is not with bicameralism per se, but rather with the political practice of thwarting the Seanad’s original representative and constitutional functions by both over-politicising its electoral process and under-utilising the limited functions it has.
23 24 25 26
All Party Oireachtas Committee on the Constitution, Second Progress Report – Seanad Éireann (1997). All Party Oireachtas Committee on the Constitution, Seventh Progress Report – Parliament (Mar 2002) at pp.35-36. Seanad Sub-Committee on Seanad Reform, Report on Seanad Reform (May 2004) at p.40. Ultimately, the committee came down in favour of a reformed Seanad of 65 seats, of which 32 should be filled by direct popular election. 15
3 - THE ABOLITION PROPOSAL 3.1
The current proposal to abolish the Seanad has its origins in a speech given by Enda Kenny TD, leader of Fine Gael, to his party’s Presidential Dinner on Saturday, 17th October 2009. Mr. Kenny told the assembled guests that if Fine Gael were elected to government at the next general election, it would abolish the Seanad. He said that having examined the outcome of similar decisions in Sweden, Denmark and New Zealand as well as those in other European countries, a second house of the Oireachtas could no longer be justified. This proposal would, he said, result in a significant saving to the exchequer and form part of a broader package of measures, such as a reduction in the number of TDs by 20, which would mark a radical change in the way in which politics was conducted in Ireland.27
This announcement was described by one political commentator as an astonishing public pronouncement “almost up there with Donagh O’Malley’s free education announcement in 1966 or John A. Costello’s impromptu declaration of the Republic while on holiday in Canada in 1949”28 and came as a surprise not only to the general public but also to the members of the Fine Gael party present at the dinner. This was because only seven months earlier, in a Policy document entitled ‘New Era’, Fine Gael had committed itself to the retention of a reformed Seanad as part of a series of detailed proposals aimed at reforming the Oireachtas.
Over the following days Enda Kenny defended his proposal and fleshed out his reasoning. In a radio interview on RTE’s Morning Ireland programme, he said “I think it’s outgrown its usefulness. I’ve tried very hard to justify its usefulness over a period, when you peel away the layers and look at what it does its legislative function has faded.”29 In an opinion piece published in the Irish Times newspaper, he argued that there were too many politicians in the Oireachtas and that a country of Ireland’s size simply could not justify two houses of parliament.30
The immediate response from many leading political figures suggested that they were ambivalent about the second house and its retention. The Minister for Transport, Noel Dempsey, agreed that the current system was not working and said that he was “not really sure” if there was still a role for the Seanad.31 The Taoiseach, Brian Cowen was more guarded but stated that he would set up an independent electoral commission to look at the issue.32 By the time the next General Election came around in February 2011, a broad political consensus had emerged in which the three major parties, Fianna Fáil,33 Fine Gael34 and the Labour Party,35 had all committed themselves to abolishing the Seanad in their election manifestos.
The proposal and the consensus which emerged are striking because, despite the fact that Seanad reform had been on the agenda since the enactment of the Constitution in 1937, not one of the ten reports which had been published over that period had recommended abolition. Indeed in their report in 2004 the Seanad Éireann Committee on Procedure and Privileges Sub-Committee on Seanad Reform, remarked that it was “striking” that “very few” of the 49 oral presentations or 161 written presentations it received called for the abolition of the Seanad.36
The initial response to the proposal to abolish Seanad Eireann appears to have been a reflection of the lack of confidence in the work of the Seanad. Confidence seems to have withered to such an extent that once a policy decision to abolish it had been announced by a major party leader there was no immediate resistance.
27 28 29 30 31 32 33 34 35 36
See ‘FG promises to abolish Seanad’ Irish Times 17 October 2009. See ‘Dempsey ‘not sure’ if Seanad has role’ Irish Times 19 October 2009. See ‘Bruton backs Kenny on abolition’ Irish Times 20 October 2009. See ‘Abolishing Seanad Éireann will save money and embody change’ 21 October 2009. See ‘Kenny defends Seanad Plan’ Irish Times 19 October 2009. See ‘Dempsey ‘not sure’ if Seanad has role’ Irish Times 19 October 2009. See ‘Real Plan Better Future’ page 30. See ‘Let’s get Ireland Working’ pages 7 and 62. See ‘One Ireland: Jobs, Reform, Fairness’ page 5. See page 4. 16
In a detailed policy document on political reform entitled New Politics, published in March 2010, Fine Gael set out five primary reasons, which it said justified the abolition of the Seanad. In her commentary on this document Dr. Fiona de Londras summarised these as: A. Ireland has too many parliamentarians B. Ireland is the only unitary (i.e. non-federal) small state in Europe to have a bicameral legislature C. Upper houses are, as a general matter, “very difficult to reform” D. Constitutional theory has moved away from bicameral parliaments E. The historical justifications for bicameralism are reducing greatly in significance and relevance Dr. de Londras went on to say that the bases relied on in New Politics to support the contention that Seanad Éireann should be abolished rather than reformed do not stand up to close scrutiny and explained her reasons for this conclusion. The arguments of the New Politics paper have also been dismissed by various other legal and political academic commentators.37
The Programme for Government agreed between Fine Gael and Labour on entering government together in March 2011 said that the two parties would “prioritise putting to the people by referendum” a number of what it described as “urgent parliamentary reform issues” including the abolition of the Seanad. In various public statements government ministers including the Taoiseach Enda Kenny have indicated that a referendum on the abolition of the Seanad will be held in the latter half of 2013.
Some of the arguments advanced in New Politics have been countered elsewhere in this paper. See also, for example de Londras: A New Politics without the Seanad: Concerns from a Human Rights perspective UCD Working Paper No.28/2010.
4 – INTERNATIONAL COMPARISONS 4.1
Bicameralism is the parliamentary structure of the world’s most influential and successful democracies. The majority of Europe’s powerful and politically stable nations have bicameral systems, whereas many of those countries with unicameral systems are recent entrants to the European Union and several of them have emerged from behind the Iron Curtain in the last two and a half decades. Outside Europe most major nations have bicameral parliamentary systems, including the United States, Canada, Australia, Japan, Russia, Switzerland, India, Brazil and Argentina.
Ireland is one of 78 countries (out of a total of 178 members of the Inter-Parliamentary union) with a bicameral parliamentary system. Within the European Union, 13 out of 27 member states have bicameral parliamentary structures. It is noteworthy, however, that the larger European Members states tend to have two houses in their parliaments. As illustrated, while almost half of the European Union member states have unicameral systems more than five sixths of the population of the Union live in countries with bicameral parliamentary systems. This arises from a desire in those systems for an additional dimension in the legislative process through which those with particular knowledge and experience can make a contribution.
Figure 4.a Bicameral Country
There has been a steady decline in the number of bicameral parliaments worldwide during the twentieth century, particularly in countries with unitary governments. The 1996, the InterParliamentary Union’s database showed that the number of countries with an upper house had dropped to below one-third (58 out of 178). Much of this decline in the number of bicameral systems arises from the patterns of opting for unicameralism by those States to emerge from the former Soviet Union. However, many developing countries as well as emerging democracies, have opted in recent decades to have a second house in their parliamentary system most notably Croatia, Russia, Bosnia, Pakistan, Namibia and Senegal.
Thirty Upper Chambers were abolished worldwide in the twentieth century; many of these were as a result of the deposing of right-wing authoritarian regimes rather than political reform. It is noteworthy, however, that three long established democracies, Denmark, Sweden and New Zealand, chose to remove constitutional provisions for a Second Chamber in their parliamentary system. The development arose for different reasons in each of these three countries. In Denmark up until the enactment of the 1953 Constitution there were two houses of parliament, an upper house, the Landsting, and a lower house, the Folketing. The two houses had equal powers and the difference between them related to membership and electorate. Originally, membership of the Landsting was restricted to certain sectors of society as was the electorate. The 1953 Constitution replaced both houses of parliament with a single house of parliament. The abolition of the second chamber in Sweden in 1969 arose in similar circumstances. The upper house that was abolished had originally evolved from a feudal body representing the nobility and performed a similar function to the lower house. Accordingly it is clear that the move in Denmark and Sweden to abolish the second house occurred in a very different context to the current proposal to abolish the Seanad as the Danish second house was a relic of a feudal past with equal powers to the lower chamber whereas the Seanad is intended to play a very different role to the Dáil. New Zealand abolished its upper house of parliament, the Legislative Council, in 1950. The upper house had been established in 1852 and was intended to replicate the British House of Lords. The New Zealand Constitution was vague on what the upper chamber was intended to do and by the mid 20th century there was widespread dissatisfaction with the chamber. For example in the period 1936 to 1950 the upper house amended just 9% of Bills from the lower house and could not claim that a single Bill that originated from its chamber became an Act. The upper house was also seen as a dumping ground for superannuated politicians. Therefore there was not much resistance to the abolition of the chamber in 1950. The role of these three upper houses is in marked contrast to that of the Seanad where the Constitution provides the chamber with a clearly defined role and where one of its great strengths relates to its history of dealing with legislation.
The choice of bicameral or unicameral parliamentary system is often shaped by whether the Country is a unitary or federal State. Broadly speaking, a government can be categorised as either federal or unitary. A Federal government, or federation, is a type of sovereign state characterised by a union of partially self-governing states or regions united by a central government. A unitary government is one which exercises power centrally and any administrative divisions (sub-national units) exercise only powers that their central government chooses to delegate to them. The case for a bicameral parliament in a Federal State is a clear and strong one. As Laver and Coakley describe, Federal States ‘are unions not just of people but also of territories; and there is a long-established case for the separate representation of territories in the legislature.38’ Upper houses such as the Senate in the United States ensure that the parliamentary system captures the interests of all fifty States equally.
There is also an apparent correlation between a country’s size and its decision to opt for either a unicameral or bicameral system. Within the European Union, the average population among bicameral countries is thirty five million whereas the figure among unicameral countries is around five million. This pattern extends beyond the European Union and is reflected in the bicameral systems of Russia, the United States, India and Brazil. Eleven of the thirteen OECD countries with populations above twenty five million are bicameral. On the other hand only four of the fourteen OECD countries with populations of less than 10 million are bicameral, and Ireland and Slovenia are the only two of those four that are Unitary States. The existence of a second chamber in the Irish context was as we have seen originally motivated by a desire, notwithstanding the states size and unitary character to broaden participation in the legislative process. The decision to include a second chamber in the 1937 Constitution was also shaped by the need to counter, to some limited extent at least, the strong hold with the
Coakley, John and Michael Laver, 1997. ‘Options for the future of Seanad Éireann’ pp. 32–107 in All-Party Oireachtas Committee on the Constitution (1997).
executive has over the legislature in the Irish system, a hold which is greater than that in most other democracies. 4.7
When it comes to considering the size of the Second Chamber internationally a clear pattern emerges. With the exception of the House of Lords in the United Kingdom upper houses are all smaller, and in most cases significantly smaller than their lower house counterparts. The number of members in the second chamber tends to be between a quarter and a half of the number in the lower house. The term of office of the members of second chambers tends to be equal to or longer than that of members in the lower houses. In some cases, the membership is renewed on a rolling basis, ensuring that the second chamber is never actually dissolved.
Six of the eleven second chambers in unitary OECD countries are elected directly, while four are elected indirectly and one, the House of Lords, is not elected. Six of the Second Chambers are representative of regions or provinces. The composition and mode of election for the Irish Seanad, with the constitutionally mandated election to various vocational panels, university representation and nomination by the premier is unique in the international context.
With the exception of Italy (which has â€˜perfect bicameralismâ€™ â€“ equal powers between the two houses), the upper houses of the unitary OECD countries are all subordinate to the lower chamber. Generally, legislation (excluding financial Bills) can be initiated by the upper House. The legislative role of these upper houses is such that they generally cannot veto Bills, but only delay them, while the lower chamber has the final decision on all Bills. In most of the systems under consideration certain categories of Bills require approval from both houses to be ratified. These are often Bills concerning constitutional and electoral issues or those relating to the implementation of international treaties.
5 – THE VALUE OF A SECOND CHAMBER 5.1
The rationale for having two houses of parliament in a unitary state is compelling. It allows for broader representation by providing the opportunity for other sectoral, geographic or demographic elements that may not be adequately represented in the main house. It also strengthens the parliamentary process by allowing a second review of legislative proposals before they become binding on all. In practical terms it provides what is valued in many aspects of life, most notably in medicine and law, namely, a second opinion. It also provides a slower and more reflective forum for matters to be considered and debated in a less politically febrile context. The Constitution provides for Seanad Éireann to meet these objectives, albeit imperfectly. The potential for wider representation is limited by the current electoral system to Seanad Éireann.
According to philosopher Henry Sidgwick, “the main need for which a Senate is constructed is that all legislative measures may receive a second consideration by a body different in quality from the primary representative assembly”39. A similar argument has been advanced for the Irish Senate. Lane and Ersson have expressed the view that the Seanad “operates as a conservative moderating force on the popularly elected Dáil “.40 The Report of the Constitution Review Group in May 1996 saw the Seanad as fulfilling two important roles. One of these was gthe need to take account of political interests that may not be adequately represented in the main house h and the other was “the need for some final review of legislative proposals before they become binding on all”.41
Whilst much criticism is levelled at the method by which members of the Seanad are elected and nominated there seems to be wide acceptance that by virtue of the differing perspectives and backgrounds of its members, the Seanad makes a valuable contribution to the scrutiny of legislation. Many serving and retired Ministers have remarked on the different quality and tone of debate in Seanad Éireann, where exchanges tended to be less adversarial and legislation is considered in a less partisan manner. There has also been recognition of the fact that individual members who have served in Seanad Éireann have brought particular expertise to certain areas. In his recent comprehensive study of the Oireachtas, Muiris MacCarthaigh has observed “Senators can often bring new and important perspectives to legislation that might otherwise not be heard in the more pressurised Dáil chamber”.42
In 1987 the former Senator, James Dooge, in his contribution to Essays in Memory of Alexis Fitzgerald observed that in the case of a number of Bills of distinct political significance the number of Seanad amendments was remarkably high. He also pointed out that study of the revision work of the Seanad showed numerous occasions where amendments that had been rejected in the partisan atmosphere of the Dáil were accepted by a Minister after a more objective debate conducted in the Seanad. Moreover, in some cases where Ministers were unwilling to amend a Bill in the Seanad, particularly if it came late in the legislative season, because it would require returning to the Dáil for confirmation of the amendment, the outcome was not necessarily negative. Seanad debates are noted by Ministers and their officials and amendments that were not accepted became, in many cases, the stuff of later legislation. Among the more recent examples where amendments suggested by senators have been reflected in subsequent ministerial amendments have been the Finance Bill (No.3) 2011, the Civil Law (Miscellaneous Provisions) Bill 2011 and the Finance Act 2012.
39 40 41 42
The Elements of Politics (1891) at 445, available at: www.laits.utexas.edu/poltheory/sidgwick/elempol/index.html Michael Laver and John Coakley, Options For The Future Of Seanad Éireann, Appendix II of The The All-Party Oireachtas Committee On The Constitution, Second Progress Report on Seanad Éireann, 34. Page 66 of ‘The Report of the Constitution Review Group’, May 1996. Muiris MacCarthaigh, Accountability in Irish Parliamentary Politics, IPA, Dublin, 2005. 21
In 1967, the Report of the Committee on the Constitution considered the issue of the value of a second house. In a section entitled ‘Is the Seanad Necessary?’ the Committee noted: “While we have examined this whole matter at great length we do not think it necessary to go into detail about the conclusions which can be drawn from the literature on the subject or from the experiences of other countries. We are satisfied that what most countries expect in a second house is that they will thereby have a safeguard against ill-considered or hasty action on the part of the first house. A second group of public representatives will have the opportunity of examining legislation and commenting upon it. The first house will thereby be given time for reflection on the utility of the measures which it has proposed. Furthermore a reasonable opportunity will be given to affected interests to organise public opinion in relation to controversial matters. In addition, important technical matters may receive in the second house more comprehensive treatment than it has been possible to give them in the first house.”
Thirty years later, in 1997 in their work for the Second Report on the Constitution by the All Party Oireachtas Committee, John Coakley and Michael Laver provided a measure of the legislative activity of the Senate of the Irish Free State and Seanad Éireann: “The Senate of the Irish Free State left a creditable legislative record. If this is measured in terms of amendments made to Bills, the raw figures are high. In all, amendments affected 37% of Bills during the life of the first Senate (1922-36), and eight Bills were rejected, of which two were subsequently dropped by the government. As a standard of comparison, during the lifetime of the Seanad (from 1938 to 19 September 1995) 18% of Bills were amended in the Seanad, but Bills were rejected outright on only one occasion. (Under existing constitutional arrangements, the disputed measure was subsequently passed.)”
6 – REFORM WITHOUT CONSTITUTIONAL AMENDMENT 6.1
The unrepresentative nature of the Seanad is not something that is mandated by the Constitution. The Constitution does not require that the forty-three elected members be elected by Dáil Deputies, outgoing Senators and members of local authorities. The only mandated provision is that they be elected from the five panels.
The precise composition of the electorate for the Seanad was, as we have seen, not provided for in the text of the 1937 Constitution. Furthermore, it was not completely clear before the referendum to adopt the Constitution, what the then government proposed in this regard. However, during the course of the Dáil Debates on the 1937 Constitution, Éamon De Valera envisaged that the candidates for the forty-three seats would be put before an “... electorate, which will consist of all persons who had been candidates for the Dáil and who had received more than five hundred first preference votes or been returned unopposed.”43
When passed by Dáil Éireann The Seanad Electoral (Panel Members) Act 1937 provided for a different electorate to that originally envisaged. Section 36 of that Act provided that the electorate would consist of the members of Dáil Éireann and seven members elected by the Council of each County and City Borough. The matter was re-examined in 1947 by the Joint Committee on Seanad Panel Elections, which recommended that the franchise be widened to include the members of Dáil Éireann, the members of Seanad Éireann and all of the members of the County and City Councils.44 This recommendation was given effect by section 44 of the Seanad Electoral (Panel Members) Act 1947 and this remains the extent of the electorate to this day.
The possibility of changing the electorate to the panels has been considered in a number of the subsequent reports looking at Seanad Reform. The Committee on the Constitution considered altering the electorate in its 1967 Report. It considered the possibility of direct elections but decided against it, citing the failed attempt at direct elections for the Free State Senate in 1925, the risk of confusing the electorate and the danger of having two directly elected houses claiming an equal mandate in support of their view.45
In 1996, the Constitution Review Group noted that, “Particular criticism has been directed at the Seanad’s arcane nomination and electoral procedure, and its almost total domination by the Dáil and Government.” The Constitution Review Group concluded that if the Seanad could not be made representative of as wide a cross-section of society as possible it should be abolished.46
Proposals to reform the electoral system were made in 1997 by the All Party Oireachtas Committee on the Constitution in its Second Progress Report: Seanad Éireann. The All Party Oireachtas Committee recommended that the number of Senators should remain the same and that the Taoiseach should retain his power to nominate eleven Senators, albeit subject to the requirements of gender balance and the need to ensure representation from the North, but it proposed sweeping changes to the rest of the system. The All Party Oireachtas Committee recommended that fifteen Senators should be directly elected from the European Parliament Constituencies on the same day as the General Election. The All Party Oireachtas Committee also recommended that twenty-eight Senators should be elected from the five panels and that half of this number should be elected by members of the Dáil and the other half by members of the local authorities. The All Party Oireachtas Committee also recommended that the six university Senators should remain but that each university Senator would be returned from one of six single seat third level constituencies.
43 44 45 46
67 Dáil Debates, Col. 56 (11 May 1937) Page 23 of the Report. Page 30. Page 17. 23
The All Party Oireachtas Committee considered the matter again in 2002 in its Seventh Progress Report: Parliament. The 2002 Report recommended that forty-eight of the sixty Senators should be elected on the same day as the General Election, by proportional representation on a national list system. It recommended that eight Senators should be nominated by the Taoiseach and that a further four should be nominated by the Taoiseach to represent citizens resident in Northern Ireland.
In 2004 the Seanad Éireann Committee on Procedures and Privileges Sub-Committee proposed sweeping changes to the manner in which Senators should be selected. It recommended that the Seanad should have sixty-five members, of whom thirty-two should be directly elected, twenty should be indirectly elected and twelve nominated by the Taoiseach, while the remaining seat would be filled by the Cathaoirleach, who should be deemed to be re-elected as a member of the House. The sub-committee suggested that of the thirty-two directly elected Senators, twenty-six should be elected to a national constituency on a list system and six to a national higher education constituency under proportional representation by the single transferable vote. It recommended that twenty Senators should be indirectly elected under PRSTV to a national constituency by County Councillors, Dáil deputies and senators and that twelve senators should be nominated by the Taoiseach.
The various reports have also made recommendations for an extension of the remit of Seanad Éireann, but again only a few have been implemented. More recently the current Seanad has taken a number of initiatives designed to raise the profile of its work and give it new dimensions. Among these initiatives has been the extension of invitations to a selection of persons to address Seanad Éireann on specific policy areas. The most recent example of this was the address to Seanad Éireann by Drew Nelson, the Grand Secretary of the Orange Order on 3rd July 2012. The current Seanad has also established the Seanad Public Consultation Committee, which invites submissions and oral evidence from a number of representatives of civil society groups on a particular issue. The first of these consultations was on the Rights of Older Persons and the second was on Curbing Cancer through Lifestyle Change. These recent initiatives are designed to enable the Seanad to engage more fully with the public in new ways.
It is clear that extensive reform of the representational basis of the Seanad and of its remit and function could be achieved by amending legislation, rather than amending the Constitution. Indeed some of this reform could be carried out merely by changing the standing orders of the house itself or by the members asserting their current functions more actively.
7 - OPTIONS FOR A MORE DEMOCRATIC SEANAD THROUGH LEGISLATIVE CHANGE 7.1
Confining the reform process, for the moment at least, to legislative rather than constitutional change restricts the extent to which the electorate for the Seanad could be broadened. However, it still leaves room for a radical extension of the Seanad electorate in a form that would give the Seanad a mandate distinct from and secondary to that of Dáil Éireann, but would still include universal franchise. Legislation has the radical potential to give all citizens ownership of Seanad Éireann on the basis of One Person One Vote. The necessary steps would include giving voting rights to all Dáil electors, restricting the votes of local authority members, and extending the graduate constituency to all third-level graduates. Each voter could then themselves decide which of the six constituencies they wished to be belong to (i.e. one of the five vocational panels or the university panel)
One obvious first step would be to give effect promptly to the Seventh Amendment of the Constitution and Article 18.4.2 by providing in legislation for one six seat university panel elected by graduates of all third-level colleges. While this would retain a graduate only constituency, the inclusion of graduates of the other colleges would dramatically increase the number of persons entitled to vote, particularly since there has been a dramatic rise in levels of third-level education attainments in recent decades. The enduring suggestion of elitism which might arise from retaining these six seats with a graduate only electorate would be further addressed if the extension of the Seanad vote to graduates of all third-level colleges was combined with the reform of the electorate for the vocational panels, as discussed below. Graduates would then be only one interest group among many.
The alteration of the provisions of the Seanad Electoral (Panel Members) Acts to provide for direct elections to all, or a portion, of the forty-three panel seats would address this. Among the options would be allowing a vote in Seanad elections to every person over 18 who could show themselves vocationally qualified for the relevant panel. This could be done, for example by allowing all teachers a vote on the education panel, all union members or unemployed persons a vote on the Labour panel, all owners of a Small and Medium Business a vote on the Industrial and Commercial Panel or all persons with an involvement in agriculture a vote on the agriculture panel. Alternatively provision could be made for every person over 18 to have a vote without having to show themselves vocational qualified: that elector could then decide which panel they wished to vote on. The principle of one man or woman one vote would be preserved since voters would have to opt to be registered on only one of the panels for which they were qualified. Such an electoral system would give rise to a radical transformation in the size of the electorate for each panel. Under such a system every adult could, in addition to a vote in a geographic constituency for Dáil elections, have a vote in a vocational constituency for a Seanad election.
The changes could also make provision by statute for electors not resident in the State and/or specially those resident in Northern Ireland to be entitled to vote for some or all of the seats on some or all of the panels.
One particular dimension which could be addressed in amending legislation dealing with the Seanad electoral system is the desirability of retaining the particular link that the Seanad, as currently elected, has with the local government system because of the role which members of County Councils and the five City Councils play in the current electoral system. An element of this particular link could be retained by, for example, providing that some or all members of a particular panel continued to be elected solely by members of County and City Councils.
An expansion of the electorate through legislative change could be combined with an overhaul of the nomination process. The range of nominating bodies and/or the eligibility criteria to contest on any of the vocational panels could be expanded in any way that was thought to be necessary.
While it is not possible to alter the Taoiseach’s power to nominate Senators or the number of such nominations without constitutional amendment, provision could if so desired be made for these nominations to reflect the need to ensure appropriate representation of certain sectors not otherwise reflected in any revised system of election for the vocational panel seats.
8 – OPTIONS FOR A MORE EFFECTIVE SEANAD THROUGH LEGISLATIVE CHANGE 8.1
Whilst certain pieces of legislation confer particular functions on the Seanad (for example, the European Union Act 2009) there is no core piece of legislation which clearly delimits its role. The parameters of its day-to-day work are largely delimited by its Standing Orders. For example, the tabling of motions, the holding of adjournment debates, the tabling of amendments to legislation, the format of debates, the holding of votes, the work of committees, the exercise of powers conferred by the Lisbon Treaty and the form of the legislative process, are all matters which are provided for under Standing Orders. As has been highlighted by previous reports on Seanad reform, the chamber lacks a clear and distinctive role and in many respects is seen as merely mimicking the Dáil. Therefore, there is considerable scope for changes to be introduced, not only in the remit of the Seanad, but also in how it conducts its business. These changes can be introduced by legislation and also through a revision of Standing Orders.
The options for an expansion of the role of Seanad Éireann in the legislative process, in helping the Dáil to hold the executive to account, and as a forum for debate on issues of public concern are limitless. Each of these roles could be expanded, in a manner which does not encroach upon the function of Dáil Éireann or upon its superior role in the parliamentary system, through changes in legislation and/or in standing orders. The most obvious areas where the Seanad could be given an enhanced function appears to be in scrutinising European legislation, both enacted and proposed, and in scrutinising secondary legislation and proposals for it.
To expand upon this, it is clear that the Seanad could play a really meaningful role in Irish parliamentary life by examining European legislation both when it is at the development stage in the EU and when it is being transposed into Irish law. As has already been discussed, the Lisbon Treaty conferred significant additional powers on the Houses of the Oireachtas. However, if those powers are to be taken seriously, arrangements on a much grander scale are required in order to scrutinise EU legislation in a more detailed and meaningful way. The Seanad is well placed to fulfill such a role.
Another area where the Seanad could make a significant contribution is in the examination of secondary legislation. Statutory instruments are invariably made by Ministers or other officeholders acting alone and receive virtually no meaningful scrutiny by either House. In 2011, 741 statutory instruments were made, of which 227 were made under the European Communities Act 1972. This means that they have statutory effect and can amend or even revoke primary legislation which has been made by the Houses of the Oireachtas. Some very significant statutory instruments which have made it on to the statute book in this way without any real scrutiny, include: •
SI No. 352 of 2011 which deals with the financial regulation of transferable securities, runs to 176 pages (in pdf),
SI No. 126 of 2011 which deals with waste management, runs to 61 pages (in
A suite of Statutory Instruments dealing with communications SI No.s 333 - 337 each run to approximately 40 pages.
The conferral of such a power would of course be complementary to the extension of the Seanad’s role as a reviewer of all EU legislation. These powers could be conferred on the Seanad through a combination of legislation and changes to Standing Orders.
A further gap in the Irish parliamentary landscape is the failure to review laws once they have been in operation for a number of years. The Seanad could play a significant role here in postlegislative scrutiny designed to examine whether legislation has achieved its original policy objectives after the passage of time; whether the legislation ought to continue in force in its current form; whether the legislation requires amendment in some way; or whether in fact the legislation ought to be repealed or revoked in its entirety. Post-legislative scrutiny is an extremely rare feature in Ireland and the Seanad could serve as a forum to manage a process for reviewing existing legislation in cooperation with the relevant Government Departments.
9. THE COST ARGUMENT 9.1
It has been claimed repeatedly that there would be a saving to the Exchequer of €150 million over five years if Seanad Éireann was abolished. This claim is untrue.
That grossly exaggerated figure is based on the false notion that the annual cost of the Seanad is the proportion of total annual spending on the Oireachtas represented by the ratio of 60 Senators to 166 Dail Deputies (or 26% of the total).
However in January 2012, the Clerk of Dáil Eireann, Kieran Coughlan, appearing before an Oireachtas Committee as accounting officer for the Oireachtas Commission, was asked whether the abolition of the Seanad would give rise to an annual saving of €25 million, as had been suggested. He replied that the true annual figure was less than €10 million. Of this €10m the present total annual cost of Senators’ salaries comes to €4.1m. (or an average of €68,000).
These figures compare with the annual figure of €3.4 million currently being paid by the present Government to 37 “special Ministerial advisors” (an average of €91,000 per advisor) for which expenditure there is no constitutional requirement. Real net gain to the Exchequer arising from the abolition of Seanad Éireann would probably be less than twice what the present Government spends annually on special Ministerial advisors.
Given that most Senators have other occupations and will pay tax and levies at the higher level on their Seanad earnings, the actual net saving to the Exchequer by abolishing Senators and their salaries would be less again. Membership of Seanad Éireann was never intended to be a full time occupation and we feel there would be many excellent and worthy people who would, if elected, be honoured to serve in a reformed Seanad for far less than is currently paid to Senators.
As an additional cost comparison, it should be noted that County and City Councillors who received no salary up to 2004, now receive an average of about €32,000 in allowances each year, or €28 million per annum between them. Looked at another way, the real cash saving to the Exchequer from the abolition of the Seanad would probably be a little less than 1% of Dublin City Council’s annual budget.
In this context arguments for the abolition of the Seanad that are based on false or exaggerated claims about costs need to be carefully assessed and examined before we decide that there are financial reasons why abolition should be preferred to reform.