RADICAL SEANAD REFORM THROUGH LEGISLATIVE CHANGE

RADICAL SEANAD REFORM THROUGH LEGISLATIVE CHANGE

CONSULTATION PAPER

Proposals for Measures to Transform Seanad ÉireannWithout The Need For Constitutional Amendment

1

RADICAL SEANAD REFORMTHROUGH LEGISLATIVE CHANGE

CONSULTATION PAPER

Proposals for Measures to Transform Seanad ÉireannWithout 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.OptionsforamoreEffectiveSeanadthroughLegislativechange

9. The Cost Argument

5

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 extentthattheSeanadmaybesaidtobeunrepresentativeandoflimitedeffectiveness,wecontendspecificallythatreformthroughlegislationwouldtransformSeanadÉireannandenableittofulfiltherole 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.

WeofferanumberofoptionsforlegislativechangetobringaboutamoredemocraticandeffectiveSeanad. 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, whichwouldhavebeenextendedtograduatesofallthirdlevelcolleges,oroneofthefivevocationalpanels. Wesuggest that theSeanad’seffectivenesscouldbeenhancedbyexpanding its role inscrutinizing European and secondary legislation.

The abolition of Seanad Éireann, which we oppose, would require a dramatic constitutional reconfigurationincludingsignificantamendmentstotheoperationofDáilÉireannandthelegislativeprocess.WearguethatSeanadreformbymeansoflegislativechangeoffersamoreexpedientandeffectivemeansofbringingaboutgenuinereform.

Thisdocument is offeredas anon-partisan initiative to stimulatedebate about theneed tobothretain 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 isthefirststepinaconsultationprocess,whichitishopedwillinvolvecurrentandformermembersof 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 inthefirstinstanceofSeanadÉireannitselfandthenofDáilÉireann.Welookforwardtoreceivingyour views on [email protected]

Senator Feargal QuinnMichael McDowellJoe O’TooleNoel WhelanSenator 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 Ó Broin in the preparation of this consultation paper.

[email protected]

7

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 IrishConstitution 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 Éireannis provided, and critiqued, followed by a discussion of the Seanad’s integral role in the legislative processaslaiddownintheConstitution.Ireland’sratificationoftheLisbonTreatyledtoeachHouseoftheOireachtasbeingconferredwithsignificantadditionalpowersinmattersconcerningEuropeanaffairs.Wenotethatseventy-fiveamendmentswouldhavetobemadetotheConstitutionifSeanadÉireann were to be abolished.

Chapter Two identifiesvariousreportsandproposalsforSeanadreformsince1937,discussingindetail the most comprehensive analysis of the role of the Seanad, which was that carried out by theSub-CommitteeonSeanadReformchairedbySenatorMaryO’Rourke in2004. Wehighlightthe 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. Thedifficultyisnotwithbicameralismperse,butratherwiththepracticeofthwartingtheSeanad’soriginalrepresentativeandconstitutionalfunctionsbyover-politicisingitsrepresentationandunder-utilising 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 theparliamentarystructureoftheworld’smostinfluentialandsuccessfuldemocracies.Themajorityof 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,demonstratingthatmorethanfivesixthsofthepopulationoftheEuropeanUnionlivesincountrieswithbicameralparliamentarysystems.WenotespecificallythatwhileDenmark,Swedenand New Zealand have abolished their Second Chambers (referred to in Mr. Kenny’s proposal), these countriesaresubstantivelydifferentfromIrelandintermsoftheirpoliticalandconstitutionalcontexts.

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 onlymandatedprovisionsarethatforty-threemembersbeelectedfromfivepanels,threefromtheNational University of Ireland and three from the University of Dublin, all by proportional representation. TheprecisecompositionoftheelectorateforthefivepanelsisnowdictatedbytheSeanadElectoral(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

8

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 becomeamoredemocraticandeffectivechamber,inkeepingwiththeparametersandthespiritofthe 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 theintroductionofaOnePersonOneVoteuniversalfranchise.Anotheroptionwouldbetogiveeffectto 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 electionstoall,oraportionoftheforty-threepanelseats.Anexpansionoftheelectoratethroughlegislative change could be complemented with an overhaul of the nomination process.

Chapter Eight offersoptionstoextendtheremitoftheSeanadandtochangeitswaysofconductingbusinesssothatitfulfillsmoreeffectivelyitsfunctionsasenvisagedbytheConstitution.Wenotethat 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 oncetheyhavebeeninoperationforanumberofyears.TheSeanadcouldplayasignificantrolehereinpost-legislativescrutiny,incooperationwiththerelevantGovernmentdepartments,byexaminingwhether legislation has achieved the original policy objectives.

Chapter Nine providesanassessmentofthefinancialimpactofretainingareformedSeanad.

9

1 – THE HISTORICAL AND CONSTITUTIONAL CONTEXT

1.1. ThefirstnationalassemblyestablishedinIrelandfollowingtheActofUnionwasaunicameralbody,DáilÉireann,whichconvenedinJanuary1919.Itwasonlyin1922thatourparliamentarysystem became bicameral with the establishment of Seanad Éireann. The nominationprocedureforthatSenatewasdesignedtoensurerepresentationfortheUnionistminorityintheSouth,withtheresultthatthelandedgentryandtheex-UnionistcommunitywerestronglyanddisproportionatelyrepresentedinthefirstSenate.

1.2 Onceestablished,the“FreeState”Seanadenthusiasticallyembraceditsroleasalegislatureandapproacheditstaskofscrutinisinglegislationparticularlyseriously1.TheSeanadrefusedtopassoneofthefirstBillspresentedtoit–theBillwhichbecametheIndemnityAct1923-oneoftheprincipalpurposesofwhichwastoindemnifytheBritishmilitaryforactscommittedbytheBlackandTans.TheSeanadalsorejectedBillstoextendthelocalgovernmentfranchisetopeopleovertheageof21,toprohibitthewearingofmilitaryuniforms,andtoabolishuniversityrepresentationintheDáil.

1.3 From theoutsetDáilÉireannwas resistant toeffortsby theassertiveSeanad toencroachuponwhatTDssawasbeingproperlytheirownterritory.InDecember1923theDáilsoughttorejectaSeanadamendmenttotheLocalGovernmentElectorsRegistrationBilltoextendthelocalgovernmentfranchisetopeopleovertheageof21,aclashwhichgaverisetotheamendmentofStandingOrderssoas tomakeprovision foraconferenceof theHouses–a device designed to avoid deadlock. Suchwas the extent of theSeanad’s active role ineffectingamendmentstoBillsthatitbecamenecessarytoutilisethisinter-houseconferencemechanismonanumberofsubsequentoccasions.

1.4 TensionsbetweenthetwohousesintensifiedafterDeValeraandFiannaFáilcame topowerin1932.AsDeValerasetaboutimplementingtheradicalconstitutionalchangeforwhichhefelthehadaclearpopularmandatehemetstrongresistancefromtheSeanad.TheFreeStateSeanadalsostronglyopposedlegislationtoremovetheoathofallegianceandthatoppositioncausedthepassingoftheBilltobedelayedforalmostayear.SeanadactivismandhisdislikeofitscompositionultimatelyledDeValeratoabolishtheFreeStateSeanad.

1.5 Wheninitiallyenacted,the1922Constitutionprovidedthatforaperiodofeightyearsitcouldbeamendedbylegislationalone,withouttheneedforareferendum.Thiseight-yearperiodwassubsequentlyextendedto16years2anditwasunderthismechanismthattheSeanadwasabolished3byDeValerain1936.HisoppositiontoSeanadÉireannwastothehouseasitwasthencomposedratherthanbeingageneraloppositiontotheconceptofasecondchamber.Forashortperiodafterthisabolitionourparliamentarysystemoperatedasaunicameralsystemuntilthepeoples’endorsementoftheConstitutionof1937providedfortheestablishmentofanewSeanad,thistimeasaforumintendedtoprovidevocationalrepresentation.

1.6 ThemannerinwhichtheFreeStateSeanadwasabolishedandthedecisiontore-establishit,albeitinadifferentform,inthe1937constitutionisalsointerestinginthecontextofthecurrentdebate.WhentheFreeStateSeanadwasabolishedin1936,DeValeraclearlyindicatedthattheideaofaSecondChamberwasnotanathematohimprovideditcouldbeshownthatasecondchamberwouldbeofvalue

“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 cannot, then, the Constitution will be introduced with a Single Chamber Legislature.” 4

1 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.

2 Constitution (Amendment No 16) Act 1929.3 Constitution (Amendment No 24) Act 1936.4 Dáil Debates Volume 69, Col 1199.

10

1.7 Within months of having abolished the Free State Seanad, De Valera put a mechanism in place toexplorealternativeoptionsforre-establishingasecondchamber.On9th 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.

1.8 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; thatitsmembersshouldenjoythesameimmunitiesandprivilegesasmembersofDáilÉireann;thatnoBillshouldbeenactedbyDáilÉireannuntilithadfirstbeensenttothesecondhousefor consideration; that the second house should not have a power of veto; and that the refusal of thesecondhouse topassaBillwouldonlyhave theeffectofdelaying thepassageofthat 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 recommendedthattobeeffective,aresolutionfortheremovalofaJudgeortheComptrollerand Auditor General for stated misbehaviour or incapacity should, in addition to being passed byDáilÉireann,bepassedalsobythesecondhouse.8

1.9 The Commission recommended that the number of members of a second house should be fixedat459 and that it should be composed of persons chosen on account of their ability, character,experienceandknowledgeofpublicaffairs. It recommended that thereshouldbe 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 beenacandidateintheprecedinggeneralelectionforDáilÉireann.Itisapparentfromtheforegoing that the Commission desired a Second Chamber that would be representative of a broadbaseofinterestsandthatwouldplayadefiniteandimportantroleintheaffairsoftheState.

1.10 On thebasisof theCommission report thedecisionwasmade to includeasecondhouseofparliamentinthe1937Constitution,electedindirectlyonabasisotherthantheuniversalfranchise.Asweshallsee,however,thenumberofSenators,themeansofitselectionandits remitasultimatelyprovided for in the1937Constitutiondiffered fromtheCommission’srecommendations. It is useful in the context of the current debate, however, to note thatthe initial justifications for bicameralism in Irelandwere reflected in the report and that itsrecommendations reflected a desire to broaden participation in the legislature, to ensurerepresentationforparticularminoritiesandtoprovideanadditionaldimensiontolaw-makingbyincludingthosewithparticularknowledgeandexperienceindefinedareas.

The Seanad and The Constitution:

1.11 TheroleoftheSeanadisdeeplyingrainedintheConstitutionandbyimplication,intheState’sarchitecture.TheestablishmentoftheSeanadisprovidedforinArticle15.1.2oftheConstitutionwhereitischaracterisedasbeingahouseofrepresentatives.ItscompositionisdetailedinArticles18and19.

1.12 TheintegralroleoftheSeanadinthelegislativeprocessissetoutinArticles20-25.TheSeanadalsohasaroleintheinstigationofapetitionfortheholdingofareferendumunderArticle27.UnderArticle33.5.1,theSeanadhasaspecificroleinrelationtotheremovaloftheComptrollerandAuditorGeneral.Similarly,theSeanadhasacentralroletoplayintheremoval ofmembers of the superior judiciary underArticle 35. In addition, Seanad office-holdershavespecificrolesassignedtothemundertheConstitution.Forexample,underArticle14.2.1,theCathaoirleachoftheSeanadisdesignatedasbeingoneofthethreemembersof

5 See Commission Recommendation 6.6 See Commission Recommendation 7.7 See Commission Recommendation 8.8 See Commission Recommendation 10.9 See Commission Recommendation 17.10 See Commission Recommendation 18.

11

thePresidentialCommission.UnderArticle31.2 theCathaoirleachof theSeanad isalsoamemberoftheCouncilofState.

1.13 Thevariousrolesof,andmultiplereferencesto,theSeanadintheConstitutionledMr.JusticeGerardHogan(priortohisappointmenttotheHighCourtbench)towarn:

“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

1.14 FormerTánaiste,MichaelMcDowellSChaspointedoutthat“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.”12McDowellargues,“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. Theprecisemake-upof theSeanad issetdown inArticle18of theConstitution,whichprovidesthat theSeanad is toconsistof60members,11ofwhomarenominatedbytheTaoiseachand49ofwhomareelected.Ofthe49elected,threeareelectedby National University of Ireland graduates, a further three are elected by Trinity Collegegraduatesandtheremaining43areelectedfromfivepanelsofpersonshavingknowledgeandpracticalexperienceof:

NationalLanguageandCulture,Literature,Art,Educationandotherprofessional interests;Agriculture and allied interests, and Fisheries; Labour, whether organised or disorganisedIndustryandCommerceincludingbanking,finance,accountancy,engineeringandarchitecture:PublicAdministrationandSocialServicesincludingVoluntaryandSocialServices

1.16 TheConstitutionprovidesthatbetween5and11peoplemaybeelectedfromeachpanelandtheactualnumberofseatscurrentlyoneachofthepanelsissetoutinlegislationnamelytheSeanadElectoral (PanelMembers)Act1947asamendedby theSeanadElectoral (PanelMembers)Act1954.Theseactsdetailallmattersgoverning theholdingofelections to thevocationalpanels.

1.17 Responsibilityformaintainingaregisterofbodiesentitledtonominatecandidatestothepanelsrestswith theClerkof theSeanad.13 Inorder tobeeligible forregistrationasanominatingbody,anorganisationmustbeconcernedmainlywith,andberepresentativeof,theinterestsandservicesofoneorotherofthepanels.Therearecurrently33bodiesregisteredfortheCulturalandEducationalPanel,11fortheAgriculturePanel,2fortheLabourPanel,43fortheIndustrialandCommercialPaneland15fortheAdministrativePanel.

1.18 Withineachpaneltherearetwosub-panels,specificallytheNominatingBodiessub-panelandtheOireachtassub-panel.Eachnominatingbodymaynominateafixednumberofcandidatesforthatpanel.Thesecandidatescomprisethenominatingbodies’sub-panelofthedifferentpanels.Inaddition,fourmembersoftheDáiloroutgoingSeanadmaynominateonecandidateforanypanel,buteachmembermayjoininonlyonenomination.ThesecandidatesformtheOireachtas(Parliament)sub-panel.Aspecifiedminimumnumberofmembersmustbeelectedforeachsub-panel.

1.19 TheelectoratefortheelectionofSeanadpanelmembersiscurrentlyrestrictedtomembersoftheincomingDáil,membersoftheoutgoingSeanad,andmembersofCountyCouncilsandCityCouncils.Thismeansthattheelectorateforthevocationalpanelisrelativelysmall.Atthe2011Seanadthetotalnumberofsuchelectorswas1,09214.

11 As reported in Sunday Tribune, 18 October 2009.12 McDowell, “That the Oireachtas is in Dire Need of Reform” a paper delivered at the Liber Society Debate, 29 June 2010.13 The register for 2010 is available at http://www.oireachtas.ie/documents/nominating_bodies/20100713.pdf 14 See Sean Donnelly’s Election 2011 page 440

12

Election to University Panels:

1.20 TheelectionofpersonstotheSeanadUniversityPanelisgovernedbytheSeanadElectoral(UniversityMembers)Acts1937which,amongotherthings,determinestheeligibilityofpersonsto vote, thenominationof candidatesand themannerof voting. This legislation currentlyrestrictsthevotingrightstograduatesoftheNationalUniversityofIrelandandTrinityCollegeDublinandassociatedcollegesintwoseparateconstituencies.TheSeventhAmendmentoftheConstitution15(ratifiedin1979)allowedfortheintroductionoflegislationsoastoextendvotingrights to graduates of all institutions of higher education. Notwithstanding the comfortablepassageofthisConstitutionalReferendumtheOireachtashasneverintroducedlegislationtogiveeffecttoitbyextendingtheelectoratefortheuniversityseats.

Constitutional provision for expansion of the electorate

1.21Theconstitutionitselfenvisagedandenabledtheexpansionoftheelectorateforthevocationpanels.Article19states:

“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.”

Todatenostepshavebeen taken in legislation toenablesuchdirectelections toSeanadÉireann.Evenanextensionoftheelectoratetotheextentenvisagedbythisarticle,limitedas it would be tomembers of any such “functional or vocational group or association orcouncil”wouldbe very restrictiveandwouldgoonlya short distance towards the radicaltransformationoftheSeanadwhichtheauthorsofthispaperwishtoachieve.

The Seanad’s Legislative Role:

1.21 Article15.2.1oftheConstitutionprovidesthat“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 isgivenfurtherexpressionintheStandingOrdersoftheSeanad,whichsetdownthespecificsof the various stages of the legislative process. Whilst the legislative process prescribed for theSeanadverycloselyreflectsthatoftheDáil,therearesomesignificantlimitationsontheSeanad’srole inscrutinisingLegislation. Themostsignificantofthese isArticle20.1oftheConstitution 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 of90dayswithinwhichtheSeanadmustconsiderallBillsthatithasreceivedfromtheDáil,theexception 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 significantevenincircumstanceswherethegovernmenthasamajorityintheSeanad,sinceitprovides a degree of restraint on the pace of the legislative process and operates to prevent the rushingoflegislationorpaniclawmakingandinsteadprovidesanopportunityforreflectionanddebate at a calmer and more appropriate pace. 16.

15 Seventh Amendment of the Constitution (Election of Members of Seanad Éireann by Institutions of Higher Education) Act 1979.16 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.

13

Seanad Éireann’s role in European Affairs:

1.23 Ireland’sratificationoftheLisbonTreatyledtoeachHouseoftheOireachtasbeingconferredwithsignificantadditionalpowers inmattersconcerningEuropeanaffairs. Theseadditionalpowers derive from Article 29.4.8 of the Constitution and also from the European Union Act 2009,andarereflectedinStanding Orders 99 to 103 of the Standing Orders of the Seanad. OneeffectofthisisthattheSeanadmayactindependentlyoftheDáiltoopposeeffortsbytheEuropeanCounciltoactbyqualifiedmajorityinsteadofunanimity.Similarly,theSeanadmay also oppose the Council’s efforts to adopt legislative acts by the ordinary legislativeprocedure 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 theprincipleofsubsidiary, theMinister forForeignAffairs isobliged toseek 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 oftheSeanadinthesematterscannotbeoverriddenbytheDáil.

Thesechangesamounted, at least in theory, toa significant enhancementof theSeanad’spowersbecauseofitsroleinEuropeanaffairs.

Notwithstandingthesedevelopmentshowever,inthewordsofMcDowell“…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 specificallyempoweredtoexamineEuropeanUniondocumentsandotherEU-relatedmattersin advance of decisions being taken on them.19

17 McDowell, “That the Oireachtas is in Dire Need of Reform” a paper delivered at the Liber Society Debate, Dublin 29 June 2010 at p.12.18 See generally, Annual Report 2010 on relations Between the European Commission and National Parliaments (Brussels, 10.6.2011

COM(2011) 345).19 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

14

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.

2.2 The many reports and proposals for Seanad Reform have included (in reverse date order);

• TheAll-PartyGrouponSeanadReform2008-2009;• The Report of the Seanad Committee on Procedure and Privileges Subcommittee on

SeanadReform(April2004);• TheSeventhProgressReportoftheAll-PartyOireachtasCommitteeonthe• Constitution(March2002);• TheSecondProgressReportof theAll-PartyOireachtasCommitteeontheConstitution

(April1997);• TheReportoftheConstitutionReviewGroup(May1996);• TheReportoftheCommitteeontheConstitution(December1967);• TheReportoftheSeanadElectoralLawCommission(1959);• TheReportoftheSelectCommitteeontheSeanadÉireann(PanelMembers)Bill,1952;• TheReportoftheJointCommitteeonSeanadPanelElections(1947)• TheReportoftheCommissiononVocationalOrganisation(1943)• SpecialReportoftheSpecialCommitteeontheSeanadElectoral(PanelMembers)Bill,

1937

2.3 Seanadreformhasalsobeenthesubjectofmanyparliamentarydebates.20ItisapparentfromthosedebatesthatmembersofpreviousSeanadsnotonlyfelttheHouseshouldbereformed,butwerealsoconsciousthatwithoutreformitsfutureexistencewouldbethreatened.

2.4 In 2004 theSub-CommitteeonSeanadReform, chairedby the then leaderSenatorMaryO’Rourke,publishedthemostcomprehensiveanalysisoftheroleoftheSeanadtodateafteraseriesofpublichearings,heldintheSeanadchamberitself.21Theworkofthesub-committeealsoinvolvedananalysisofelevenpreviousreportsontheSeanadandtheconsiderationofover160writtensubmissions.

Itadvancedarangeofproposals,whichitasserted,“should be implemented in their totality as a package”andsaid, “... 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

2.5 TheO’RourkereportrecommendedthattheSeanadshouldhave65members,32ofwhomshouldbedirectlyelected. Itwenton to identify fourkeyareas inwhich itwasfelt that theSeanadshouldhaveamajorrole.Thoseareasare:

1.responsibilityforholdingpublicconsultationsonproposedlegislation; 2.assessinglegislativeproposalsemergingfromtheEU; 3.responsibilityforreviewinggovernmentpolicyinseveralareas;and, 4.responsibilityforscrutinisingseniorpublicappointments.

20 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).

21 Seanad Sub-Committee on Seanad Reform, Report on Seanad Reform (May 2004).22 Ibid., at p.4.

15

2.6 TheproposalthattheSeanadshouldhaveasignificantroleinscrutinisingEuropeanUnionLegislation as well as monitoring and reporting on secondary Legislation had also beenadvancedsomeyearspreviouslybytheAll-PartyCommitteeontheConstitutioninitsSecondProgressReportontheSeanad23anditsSeventhProgressReportonParliament.24

2.7 In terms of themethod of electingSenators, the 2004O’RourkeReport highlighted someproblemswiththevocationalsystemonthebasisthatitfailstoproduceSenatorswithstrongvocationalbackgrounds.IntheCommittee’sopinion,thisoccursbecausethevocationalbodiesthatnominatecandidatesdonotactuallyhaveavoteinSeanadelections.

2.8 The2004Committeewerealsooftheviewthatifthepanelsystemweretoberetained,itwouldrequiresignificantoverhaul.25Asaminimalistapproachtoreform,theCommitteesuggestedthatchangescouldbemadetotheweightingsofexistingpanelstoreflectthechangesinIrishsocietythathavetakenplacesince1937.Asomewhatmoreradicalapproachwouldinvolveleavingthepanelsystemintactbutreformingthesystemofnominatingbodies.AccordingtotheCommittee,themostradicalapproachwouldinvolveidentifyinganddefininganewsetofpanels,togetherwithnewnominatingproceduresandanewelectoralsystem.26

2.9 While the2004Sub-CommitteeReportwaswelcomedby thegovernmentof theday,andendorsedbytheSeanad,andwhileaworkinggrouponimplementationwasestablished,tobechairedbytheMinisterfortheEnvironment,noneoftheCommittee’sproposalshavebeenadvanced.

2.10 ThevariousreportsexaminingtheroleoftheSeanadallagreeinconcludingthatthedifficultyisnotwithbicameralismperse,butratherwiththepoliticalpracticeofthwartingtheSeanad’soriginalrepresentativeandconstitutionalfunctionsbybothover-politicisingitselectoralprocessandunder-utilisingthelimitedfunctionsithas.

23 All Party Oireachtas Committee on the Constitution, Second Progress Report – Seanad Éireann (1997).24 All Party Oireachtas Committee on the Constitution, Seventh Progress Report – Parliament (Mar 2002) at pp.35-36.25 Seanad Sub-Committee on Seanad Reform, Report on Seanad Reform (May 2004) at p.40.26 Ultimately, the committee came down in favour of a reformed Seanad of 65 seats, of which 32 should be filled by direct popular election.

16

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 theOireachtas could no longer be justified. This proposalwould,hesaid, result inasignificantsaving to theexchequerand formpartofabroaderpackage 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

3.2 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.

3.3 OverthefollowingdaysEndaKennydefendedhisproposalandfleshedouthisreasoning.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

3.4 The immediate response from many leading political figures suggested that they wereambivalent about the second house and its retention. The Minister for Transport, Noel Dempsey,agreedthatthecurrentsystemwasnotworkingandsaidthathewas“notreallysure” 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 hademergedinwhichthethreemajorparties,FiannaFáil,33 Fine Gael34 and the Labour Party,35 had all committed themselves to abolishing the Seanad in their election manifestos.

3.5 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 PrivilegesSub-CommitteeonSeanadReform,remarkedthatitwas“striking” that “very few” of the 49 oral presentations or 161 written presentations it received called for the abolition of the Seanad.36

3.6 The initial response to the proposal to abolish Seanad Eireann appears to have been a reflectionof the lackofconfidence in theworkof theSeanad.Confidenceseemstohavewithered 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 See ‘FG promises to abolish Seanad’ Irish Times 17 October 2009.28 See ‘Dempsey ‘not sure’ if Seanad has role’ Irish Times 19 October 2009.29 See ‘Bruton backs Kenny on abolition’ Irish Times 20 October 2009.30 See ‘Abolishing Seanad Éireann will save money and embody change’ 21 October 2009.31 See ‘Kenny defends Seanad Plan’ Irish Times 19 October 2009.32 See ‘Dempsey ‘not sure’ if Seanad has role’ Irish Times 19 October 2009.33 See ‘Real Plan Better Future’ page 30.34 See ‘Let’s get Ireland Working’ pages 7 and 62.35 See ‘One Ireland: Jobs, Reform, Fairness’ page 5.36 See page 4.

17

3.7 In a detailed policy document on political reform entitled New Politics, published in March 2010,FineGaelsetoutfiveprimaryreasons,whichitsaidjustifiedtheabolitionoftheSeanad.In her commentary on this document Dr. Fiona de Londras summarised these as:

A. Ireland has too many parliamentarians B. Irelandistheonlyunitary(i.e.non-federal)smallstateinEuropeto

have a bicameral legislature C. Upperhousesare,asageneralmatter,“verydifficulttoreform” D. Constitutional theory has moved away from bicameral parliaments E. Thehistoricaljustificationsforbicameralismarereducinggreatlyin

significanceandrelevance

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

3.8 The Programme for Government agreed between Fine Gael and Labour on entering governmenttogetherinMarch2011saidthatthetwopartieswould“prioritise putting to the people by referendum”anumberofwhatitdescribedas“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.

37 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.

18

4 – INTERNATIONAL COMPARISONS

4.1 Bicameralism is theparliamentary structureof theworld’smost influential and successfuldemocracies.ThemajorityofEurope’spowerfulandpoliticallystablenationshavebicameralsystems,whereasmanyofthosecountrieswithunicameralsystemsarerecententrantstotheEuropeanUnionandseveralofthemhaveemergedfrombehindtheIronCurtaininthelasttwoandahalfdecades.OutsideEuropemostmajornationshavebicameralparliamentarysystems,includingtheUnitedStates,Canada,Australia,Japan,Russia,Switzerland,India,BrazilandArgentina.

4.2 Irelandisoneof78countries(outofatotalof178membersoftheInter-Parliamentaryunion)withabicameralparliamentarysystem.WithintheEuropeanUnion,13outof27memberstateshavebicameralparliamentarystructures.Itisnoteworthy,however,thatthelargerEuropeanMembersstatestendtohavetwohousesintheirparliaments.Asillustrated,whilealmosthalfoftheEuropeanUnionmemberstateshaveunicameralsystemsmorethanfivesixthsofthepopulationof theUnion live incountrieswithbicameralparliamentarysystems.Thisarisesfromadesireinthosesystemsforanadditionaldimensioninthelegislativeprocessthroughwhichthosewithparticularknowledgeandexperiencecanmakeacontribution.

Figure4.a

Bicameral

Country Pop (m)

Germany 82.21

France 63.6

UK 60.58

Italy 59.71

Spain 46.77

Poland 38.6

Romania 22.3

Netherlands 16.76

Czech Republic 10.67

Belgium 10.27

Austria 8.16

Ireland 4.23

Slovenia 2.04

Total 425.9

% 85.18%

4.3 There has been a steady decline in the number of bicameral parliaments worldwide during thetwentiethcentury,particularlyincountrieswithunitarygovernments.The1996,theInter-Parliamentary Union’s database showed that the number of countries with an upper house had droppedtobelowone-third(58outof178).Muchofthisdeclineinthenumberofbicameralsystems 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.

19

4.4 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 politicalreform. 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 parliamentarysystem.Thedevelopmentarose fordifferent reasons ineachof these threecountries.

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 hadequalpowersandthedifferencebetweenthemrelatedtomembershipandelectorate.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 differentcontexttothecurrentproposaltoabolishtheSeanadastheDanishsecondhousewas a relic of a feudal past with equal powers to the lower chamber whereas the Seanad is intendedtoplayaverydifferentroletotheDáil.

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 chamberwith a clearly defined role andwhere one of its greatstrengths relates to its history of dealing with legislation.

4.5 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 centralgovernment. A unitary government is one which exercises power centrally and any administrative divisions(sub-nationalunits)exerciseonlypowersthattheircentralgovernmentchoosestodelegate 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 parliamentarysystemcapturestheinterestsofallfiftyStatesequally.

4.6 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 bicameralcountries is thirtyfivemillionwhereas thefigureamongunicameralcountries isaroundfivemillion.ThispatternextendsbeyondtheEuropeanUnionandisreflectedinthebicameral systems of Russia, the United States, India and Brazil. Eleven of the thirteen OECD countrieswithpopulationsabovetwentyfivemillionarebicameral.Ontheotherhandonlyfour 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

38 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).

20

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 areallsmaller,andinmostcasessignificantlysmallerthantheirlowerhousecounterparts.The number of members in the second chamber tends to be between a quarter and a half ofthenumberinthelowerhouse.Thetermofofficeofthemembersofsecondchamberstends 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.

4.8 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.

4.9 With the exception of Italy (which has ‘perfect bicameralism’ – equal powers between the two houses), the upper houses of the unitary OECD countries are all subordinate to the lower chamber.Generally,legislation(excludingfinancialBills)canbeinitiatedbytheupperHouse.The legislative role of these upper houses is such that they generally cannot veto Bills, but onlydelaythem,whilethelowerchamberhasthefinaldecisiononallBills.Inmostofthesystems under consideration certain categories of Bills require approval from both houses toberatified.TheseareoftenBillsconcerningconstitutionalandelectoral issuesorthoserelating to the implementation of international treaties.

21

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 slowerandmorereflectiveforumformatterstobeconsideredanddebatedinalesspoliticallyfebrile 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.

5.2 AccordingtophilosopherHenrySidgwick,“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 ReviewGroupinMay1996sawtheSeanadasfulfillingtwoimportantroles.Oneofthesewasgthe need to take account of political interests that may not be adequately represented in the main house handtheotherwas“the need for some final review of legislative proposals before they become binding on all”.41

5.3 Whilst much criticism is levelled at the method by which members of the Seanad are elected andnominatedthereseemstobewideacceptancethatbyvirtueofthedifferingperspectivesand backgrounds of its members, the Seanad makes a valuable contribution to the scrutiny of legislation.ManyservingandretiredMinistershaveremarkedonthedifferentqualityandtoneof 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

5.4 In 1987 the former Senator, James Dooge, in his contribution to Essays in Memory of Alexis FitzgeraldobservedthatinthecaseofanumberofBillsofdistinctpoliticalsignificancethenumber 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 aMinister after amoreobjective 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, becauseitwouldrequirereturningtotheDáilforconfirmationoftheamendment,theoutcomewasnotnecessarilynegative.SeanaddebatesarenotedbyMinistersandtheirofficialsandamendments thatwere not acceptedbecame, inmany cases, the stuff of later legislation.Among the more recent examples where amendments suggested by senators have been reflectedinsubsequentministerialamendmentshavebeentheFinanceBill(No.3)2011,theCivil Law (Miscellaneous Provisions) Bill 2011 and the Finance Act 2012.

39 The Elements of Politics (1891) at 445, available at: www.laits.utexas.edu/poltheory/sidgwick/elempol/index.html40 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, 34.41 Page 66 of ‘The Report of the Constitution Review Group’, May 1996.42 Muiris MacCarthaigh, Accountability in Irish Parliamentary Politics, IPA, Dublin, 2005.

22

5.5 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.”

5.6 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.)”

23

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 beelectedbyDáilDeputies, outgoingSenators andmembers of local authorities. The onlymandatedprovisionisthattheybeelectedfromthefivepanels.

6.2 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,duringthecourseoftheDáilDebatesonthe1937Constitution,ÉamonDeValeraenvisagedthatthecandidatesfortheforty-threeseatswouldbeputbeforean“... 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

6.3 WhenpassedbyDáilÉireannTheSeanad Electoral (Panel Members) Act 1937 provided for adifferentelectoratetothatoriginallyenvisaged.Section36ofthatActprovidedthattheelectoratewouldconsistofthemembersofDáilÉireannandsevenmemberselectedbytheCouncilofeachCountyandCityBorough.Thematterwasre-examinedin1947bytheJointCommittee on Seanad Panel Elections, which recommended that the franchise be widened to includethemembersofDáilÉireann,themembersofSeanadÉireannandallofthemembersof the County and City Councils.44Thisrecommendationwasgiveneffectbysection44ofthe Seanad Electoral (Panel Members) Act 1947 and this remains the extent of the electorate to this day.

6.4 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

6.5 In1996, theConstitutionReviewGroupnotedthat,“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 couldnotbemaderepresentativeofaswideacross-sectionofsocietyaspossibleitshouldbe abolished.46

6.6 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 recommendedthatfifteenSenatorsshouldbedirectlyelectedfromtheEuropeanParliamentConstituencies on the same day as the General Election. The All Party Oireachtas Committee alsorecommendedthattwenty-eightSenatorsshouldbeelectedfromthefivepanelsandthat half of this number shouldbe electedbymembersof theDáil and theother half bymembers 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 67 Dáil Debates, Col. 56 (11 May 1937)44 Page 23 of the Report.45 Page 30.46 Page 17.

24

6.7 The All Party Oireachtas Committee considered the matter again in 2002 in its Seventh Progress Report:Parliament. The2002Report recommended that forty-eightof thesixtySenatorsshould 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.

6.8 In 2004 the Seanad Éireann Committee on Procedures and Privileges Sub-Committeeproposed sweeping changes to the manner in which Senators should be selected. It recommendedthattheSeanadshouldhavesixty-fivemembers,ofwhomthirty-twoshouldbedirectly elected, twenty should be indirectly elected and twelve nominated by the Taoiseach, whiletheremainingseatwouldbefilledbytheCathaoirleach,whoshouldbedeemedtobere-electedasamemberoftheHouse.Thesub-committeesuggestedthatofthethirty-twodirectlyelectedSenators,twenty-sixshouldbeelectedtoanationalconstituencyonalistsystem and six to a national higher education constituency under proportional representation by the single transferable vote. It recommended that twenty Senators should be indirectly electedunderPRSTVtoanationalconstituencybyCountyCouncillors,Dáildeputiesandsenators and that twelve senators should be nominated by the Taoiseach.

6.9 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 takenanumberof initiativesdesigned to raise theprofileof itsworkandgive itnewdimensions. Among these initiatives has been the extension of invitations to a selection of personstoaddressSeanadÉireannonspecificpolicyareas.Themostrecentexampleofthiswas 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 civilsocietygroupsonaparticularissue.ThefirstoftheseconsultationswasontheRightsof 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.

6.10 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.

25

7 - OPTIONS FOR A MORE DEMOCRATIC SEANAD THROUGH LEGISLATIVE CHANGE

7.1 Confiningthereformprocess,forthemomentatleast,tolegislativeratherthanconstitutionalchange restricts the extent to which the electorate for the Seanad could be broadened.However, itstill leavesroomforaradicalextensionoftheSeanadelectorateinaformthatwouldgivetheSeanadamandatedistinctfromandsecondarytothatofDáil Éireann,butwouldstillincludeuniversalfranchise.LegislationhastheradicalpotentialtogiveallcitizensownershipofSeanadÉireannonthebasisofOnePersonOneVote. Thenecessarystepswould includegivingvoting rights toallDáilelectors, restricting thevotesof localauthoritymembers,andextending thegraduateconstituency toall third-levelgraduates.Eachvotercouldthenthemselvesdecidewhichofthesixconstituencies theywishedtobebelongto(i.e.oneofthefivevocationalpanelsortheuniversitypanel)

7.2 Oneobvious first stepwouldbe togiveeffect promptly to theSeventhAmendmentof theConstitutionandArticle18.4.2byprovidinginlegislationforonesixseatuniversitypanelelectedbygraduatesofallthird-levelcolleges.Whilethiswouldretainagraduateonlyconstituency,the inclusionofgraduatesof theothercollegeswoulddramatically increase thenumberofpersonsentitledtovote,particularlysincetherehasbeenadramaticriseinlevelsofthird-leveleducationattainmentsinrecentdecades.TheenduringsuggestionofelitismwhichmightarisefromretainingthesesixseatswithagraduateonlyelectoratewouldbefurtheraddressediftheextensionoftheSeanadvotetograduatesofallthird-levelcollegeswascombinedwiththereformoftheelectorateforthevocationalpanels,asdiscussedbelow.Graduateswouldthenbeonlyoneinterestgroupamongmany.

7.3 ThealterationoftheprovisionsoftheSeanad Electoral (Panel Members) Acts toprovidefordirectelectionstoall,oraportion,oftheforty-threepanelseatswouldaddressthis.AmongtheoptionswouldbeallowingavoteinSeanadelectionstoeverypersonover18whocouldshowthemselvesvocationallyqualifiedfortherelevantpanel.Thiscouldbedone,forexamplebyallowingall teachersavoteon theeducationpanel,all unionmembersorunemployedpersonsavoteontheLabourpanel,allownersofaSmallandMediumBusinessavoteontheIndustrialandCommercialPanelorallpersonswithaninvolvementinagricultureavoteontheagriculturepanel.Alternativelyprovisioncouldbemadeforeverypersonover18tohaveavotewithouthavingtoshowthemselvesvocationalqualified:thatelectorcouldthendecidewhichpaneltheywishedtovoteon.Theprincipleofonemanorwomanonevotewouldbepreservedsincevoterswouldhavetoopttoberegisteredononlyoneofthepanelsforwhichtheywerequalified.Suchanelectoralsystemwouldgiverisetoaradicaltransformationinthesizeoftheelectorateforeachpanel.Undersuchasystemeveryadultcould,inadditiontoavoteinageographicconstituencyforDáilelections,haveavoteinavocationalconstituencyforaSeanadelection.

ThechangescouldalsomakeprovisionbystatuteforelectorsnotresidentintheStateand/orspeciallythoseresidentinNorthernIrelandtobeentitledtovoteforsomeoralloftheseatsonsomeorallofthepanels.

7.4 OneparticulardimensionwhichcouldbeaddressedinamendinglegislationdealingwiththeSeanadelectoralsystemisthedesirabilityofretainingtheparticularlinkthattheSeanad,ascurrentlyelected,haswiththelocalgovernmentsystembecauseoftherolewhichmembersofCountyCouncilsandthefiveCityCouncilsplayinthecurrentelectoralsystem.Anelementofthisparticularlinkcouldberetainedby,forexample,providingthatsomeorallmembersofaparticularpanelcontinuedtobeelectedsolelybymembersofCountyandCityCouncils.

7.5 Anexpansionoftheelectoratethroughlegislativechangecouldbecombinedwithanoverhaulof thenomination process.The rangeof nominating bodies and/or theeligibility criteria tocontestonanyofthevocationalpanelscouldbeexpandedinanywaythatwasthoughttobenecessary.

7.6 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 thesenominationstoreflecttheneedtoensureappropriaterepresentationofcertainsectorsnototherwisereflectedinanyrevisedsystemofelectionforthevocationalpanelseats.

26

8 – OPTIONS FOR A MORE EFFECTIVE SEANAD THROUGH LEGISLATIVE CHANGE

8.1 WhilstcertainpiecesoflegislationconferparticularfunctionsontheSeanad(forexample,theEuropeanUnionAct2009)thereisnocorepieceoflegislationwhichclearlydelimitsitsrole.Theparametersofitsday-to-dayworkarelargelydelimitedbyitsStandingOrders.Forexample,thetablingofmotions,theholdingofadjournmentdebates,thetablingof amendmentstolegislation,theformatofdebates,theholdingofvotes,theworkofcommittees,theexerciseofpowersconferredbytheLisbonTreatyandtheformofthelegislativeprocess,areallmatterswhichareprovidedforunderStandingOrders.AshasbeenhighlightedbypreviousreportsonSeanad reform, thechamber lacksaclearanddistinctive roleand inmany respects isseenasmerelymimickingtheDáil.Therefore,thereisconsiderablescopeforchangestobeintroduced,notonlyintheremitoftheSeanad,butalsoinhowitconductsitsbusiness.ThesechangescanbeintroducedbylegislationandalsothrougharevisionofStandingOrders.

8.2 Theoptions for anexpansionof the roleofSeanadÉireann in the legislative process, inhelpingtheDáil toholdtheexecutivetoaccount,andasaforumfordebateonissuesofpublicconcernarelimitless.Eachoftheserolescouldbeexpanded,inamannerwhichdoesnotencroachuponthefunctionofDáilÉireannoruponitssuperiorroleintheparliamentarysystem, throughchanges in legislationand/or in standingorders.Themostobviousareaswhere the Seanad could be given an enhanced function appears to be in scrutinisingEuropeanlegislation,bothenactedandproposed,andinscrutinisingsecondarylegislationandproposalsforit.

8.3 Toexpanduponthis, it isclear that theSeanadcouldplayareallymeaningful role in IrishparliamentarylifebyexaminingEuropeanlegislationbothwhenitisatthedevelopmentstageintheEUandwhenitisbeingtransposedintoIrishlaw.Ashasalreadybeendiscussed,theLisbonTreatyconferredsignificantadditionalpowersontheHousesoftheOireachtas.However,ifthosepowersaretobetakenseriously,arrangementsonamuchgranderscalearerequiredinordertoscrutiniseEUlegislationinamoredetailedandmeaningfulway.TheSeanadiswellplacedtofulfillsucharole.

8.4 AnotherareawheretheSeanadcouldmakeasignificantcontributionisintheexaminationofsecondarylegislation.StatutoryinstrumentsareinvariablymadebyMinistersorotheroffice-holdersactingaloneandreceivevirtuallynomeaningfulscrutinybyeitherHouse.In2011,741statutoryinstrumentsweremade,ofwhich227weremadeundertheEuropeanCommunitiesAct1972.Thismeansthattheyhavestatutoryeffectandcanamendorevenrevokeprimarylegislationwhich has beenmade by theHouses of theOireachtas. Some very significantstatutoryinstrumentswhichhavemadeitontothestatutebookinthiswaywithoutanyrealscrutiny,include:

• SINo.352of2011whichdealswiththefinancialregulationoftransferablesecurities,runsto176pages(inpdf),

• SINo.126of2011whichdealswithwastemanagement,runsto61pages(in pdf),

• AsuiteofStatutoryInstrumentsdealingwithcommunicationsSINo.s333-337eachruntoapproximately40pages.

Theconferralofsuchapowerwouldofcoursebecomplementary to the extensionof theSeanad’sroleasareviewerofallEUlegislation.ThesepowerscouldbeconferredontheSeanadthroughacombinationoflegislationandchangestoStandingOrders.

8.5 AfurthergapintheIrishparliamentarylandscapeisthefailuretoreviewlawsoncetheyhavebeeninoperationforanumberofyears.TheSeanadcouldplayasignificantrolehereinpost-legislativescrutinydesigned toexaminewhether legislationhasachieved itsoriginalpolicyobjectivesafterthepassageoftime;whetherthelegislationoughttocontinueinforceinitscurrent form;whether the legislation requiresamendment in someway;orwhether in factthe legislationought toberepealedorrevoked in itsentirety.Post-legislativescrutiny isanextremelyrarefeatureinIrelandandtheSeanadcouldserveasaforumtomanageaprocessforreviewingexistinglegislationincooperationwiththerelevantGovernmentDepartments.

27

9. THE COST ARGUMENT

9.1 IthasbeenclaimedrepeatedlythattherewouldbeasavingtotheExchequerof€150millionoverfiveyearsifSeanadÉireannwasabolished.Thisclaimisuntrue.

9.2 That grossly exaggerated figure is based on the false notion that the annual cost of theSeanadistheproportionoftotalannualspendingontheOireachtasrepresentedbytheratioof60Senatorsto166DailDeputies(or26%ofthetotal).

9.3 However in January 2012, theClerk ofDáil Eireann, KieranCoughlan, appearing beforeanOireachtasCommitteeasaccountingofficerfortheOireachtasCommission,wasaskedwhethertheabolitionoftheSeanadwouldgiverisetoanannualsavingof€25million,ashadbeensuggested.Herepliedthatthetrueannualfigurewaslessthan€10million.Ofthis€10mthepresenttotalannualcostofSenators’salariescomesto€4.1m.(oranaverageof€68,000).

9.4 These figures comparewith the annual figure of€3.4million currently being paid by thepresentGovernmentto37“specialMinisterialadvisors”(anaverageof€91,000peradvisor)forwhichexpenditurethereisnoconstitutionalrequirement.RealnetgaintotheExchequerarising from the abolitionofSeanadÉireannwould probably be less than twicewhat thepresentGovernmentspendsannuallyonspecialMinisterialadvisors.

9.5 GiventhatmostSenatorshaveotheroccupationsandwillpaytaxand leviesat thehigherlevelontheirSeanadearnings,theactualnetsavingtotheExchequerbyabolishingSenatorsandtheirsalarieswouldbelessagain.MembershipofSeanadÉireannwasneverintendedtobeafulltimeoccupationandwefeeltherewouldbemanyexcellentandworthypeoplewhowould,ifelected,behonouredtoserveinareformedSeanadforfarlessthaniscurrentlypaidtoSenators.

9.6 Asanadditionalcostcomparison, itshouldbenotedthatCountyandCityCouncillorswhoreceivednosalaryupto2004,nowreceiveanaverageofabout€32,000inallowanceseachyear,or€28millionperannumbetweenthem.Lookedatanotherway,therealcashsavingtotheExchequerfromtheabolitionoftheSeanadwouldprobablybealittlelessthan1%ofDublinCityCouncil’sannualbudget.

9.7 InthiscontextargumentsfortheabolitionoftheSeanadthatarebasedonfalseorexaggeratedclaimsaboutcostsneedtobecarefullyassessedandexaminedbeforewedecidethattherearefinancialreasonswhyabolitionshouldbepreferredtoreform.

28

RADICAL SEANAD REFORM THROUGH LEGISLATIVE CHANGE

CONSULTATION PAPER

Proposals for Measures to Transform Seanad ÉireannWithout The Need For Constitutional Amendment