Should by-elections be abolished?

By Michael Gallagher

Leaving aside the broader issue of electoral reform (I’ve put some thoughts on this here), the question of how to fill casual vacancies has been discussed. At present, by-elections are used to fill such vacancies, and this has been criticised as an anomalous way of filling vacancies arising under a PR system. There are indeed anomalies, but would any other method mark an improvement? Continue reading

How many leaders should take part in the leaders’ debate at the next election?

By Michael Gallagher

leaders debate

The novelty of the leaders’ debates at the 2010 British general election has focused attention on this aspect of election campaigns, especially given the sudden surge in Lib Dem support in mid-April after party leader Nick Clegg was widely adjudged the winner of the first debate. Not surprisingly, the Labour Party here has been quick out of the traps in demanding that at the next election, which after all could come at any time, the now traditional leaders’ debate should be a 3-way contest rather than being confined to the leaders of FF and FG as has always been the case so far. Labour is particularly keen to have Éamon Gilmore allowed into the ring with the other two leaders because the polls consistently show him as by some way the most highly regarded party leader, while there are question marks over both Brian Cowen and Enda Kenny’s performances, and Gilmore has proved himself a highly effective debater in the Dáil chamber.

It is easy to see the logic of Labour’s argument. Things were different in 2007. At that election, Labour won just 10% of the votes, not much more than a third of FG’s support and less than a quarter of FF’s. There was scarcely any doubt that the next government would be led by either Bertie Ahern or Enda Kenny. A head-to-head confrontation between Ahern and Kenny was clearly the most sensible format on that occasion.

As of April 2010, the shape of the party system looks very different. Polls vary a bit, but FG is generally in the mid-30s, FF in the mid-20s and Labour around or just below 20%. The justification for confining the leaders’ debate to the leaders of FF and FG in these circumstances is obviously much weaker, barring sizeable changes in party support before the next election – though of course such changes are quite possible if the 30th Dáil really does run until 2012.

It might be argued that only Kenny and Cowen – assuming they both remain the leaders of their parties for the remainder of this Dáil’s life – have a chance of being Taoiseach after the next election, but this argument is much weaker than before the 2007 election. True, it is unlikely that Gilmore will become Taoiseach, unless there is a really dramatic reverse in the relative strengths of FG and Labour, or unless Labour agrees a ‘rotating Taoiseach’ deal with FG under which he becomes Taoiseach first, neither of which is likely. But then, it could be argued that Cowen’s chances of becoming Taoiseach are even slimmer. FF will not be able to construct a government without either FG or Labour, and both parties have said unequivocally that they will not join FF in a coalition government. Despite public cynicism about the worth of a politician’s promise, in fact politicians do (usually, anyway) honour specific pledges in areas within their control, if only because of the reputational cost of not doing so.

In fact, while Labour will complain vociferously if its leader is excluded from the main debate and is confined to the minor match as in 2007, that outcome might be (even) better for the party than if Gilmore is invited into the main contest, for several reasons. First, the potential for him to gain from the exposure of a TV debate is far less than it was for Nick Clegg, precisely because he is already so well known and regarded whereas Clegg seems to have appeared from nowhere, perfectly formed, in the eyes of many British voters.

Second, evidence that such debates actually change voting intentions is mixed. The dramatic growth in Lib Dem support after Clegg’s debate performance, in the absence of any other plausible explanation for this, shows that they can matter, and the impact on TV viewers of Nixon’s 5 o’clock shadow and sweatiness in the 1960 US presidential debate is regularly trotted out as supporting evidence. Yet, as many people have pointed out, Michael Noonan seemed to outpoint Bertie Ahern in the 2002 leaders’ debate here without this making any discernable impact on FG’s support. While Ahern’s perceived victory over Kenny in the 2007 debate is widely cited as an explanation for FF’s late recovery in the polls then, and the explanation ‘it was the debate what won it’ is perhaps by now ineradicably implanted in the corpus of conventional wisdom, the detailed poll evidence really does not support this (see Michael Marsh’s analysis in How Ireland Voted 2007, pp. 120–1).

Third, absence can make a leader look better. Back in 1992 Albert Reynolds and John Bruton sent many listeners to sleep in a contest widely derided as a 0–0 draw where the real victor was Dick Spring, whose reputation grew stronger the longer the programme dragged on, and when election day came Spring’s own popularity was a major factor in Labour’s record 33 seats.

Fourth, were Gilmore included this might well heighten public awareness of the significant differences in policy, indeed in philosophy, between Labour and FG, especially when it comes to tackling the country’s economic difficulties, something that Brian Cowen should be able to highlight to the advantage of FF along the lines of ‘There is no alternative’.

And fifth, if Gilmore is excluded in a situation where he has a reasonable claim to be included, and if it seems that the underlying reason for this is that the leaders of FF and FG are simply afraid to face him, this could only work to his advantage. Labour could portray his exclusion as an inherent unfairness and the other two leaders would be repeatedly branded in the media as running scared of him.

The leaders’ debate before the next election, whatever its format, could provide a win–win situation for Labour.

Senates that work? The Australian experience

I have recently returned from a research fieldtrip to Australia. The following is an extract of an article of mine from The Irish Examiner, April 2 2010.
I have examined the experience of the Australian Senate, of interest in Ireland because of Fine Gael’s proposals to abolish the upper house. (Given the likelihood of a Fine Gael-Labour coalition after the next election, I would like to hear Labour’s plans concerning the Seanad) Continue reading

The Tasmanian experience of the Irish electoral system

The following is taken from an article of mine in The Irish Examiner, April 9 2010. It may be of interest considering the Tasmanian experience of PR-STV.

THE DEVIL’S IN THE DETAIL
The first thing that struck me about Australian politicians is their responsiveness. Last January I e-mailed a large number of parliamentarians, both past and present, requesting an interview. The next day my inbox was full with responses, most of them positive, and where not, apologetic for not being so. Continue reading

LibDem surge will put electoral reform high on UK agenda

Before last Thursday’s leaders’ debate the LibDems privately conceded they’d lose some seats to the Tories on May 6th. Their best case scenario was that they’d be in the position of King-maker in a hung parliament and the price of their (external) support would be electoral reform.  However, it’s probable that any party would have to offer a referendum on this, which one can see being defeated (just threaten them with European-style weak and unstable government; Coalition isn’t British etc.)

The latest polls suggest the LibDems be close to the Conservatives for largest party on the popular vote. But because of biases within the electoral system (the party’s support is spread more evenly (thinly) than either the Labour or Tory vote) it may still be the smallest party by a distance and Labour, even if it is the third placed party would still be the largest party in parliament. Below shows the predictions based on a uniform national swing from UK polling report swingometer.

UK Polling Report swing calculator screengrab

This ‘anomaly’ will surely make it easier to pass that referendum. The LibDems have long been attached to our system of PR-STV, but most acknowledged it was ‘too complicated’ for British voters – even though it doesn’t demand any strategic thought on the voters’ part – and therefore it was thought unlikely to pass. So AV was seen as next best (PR-STV in single seat constituencies).  It is ironic that in the demand for political reform various countries will change from their status quo to systems from which other countries are also demanding reform. Even if David Farrell and Michael Gallagher’s arguments haven’t already done so, this fact alone should caution us about the need for major electoral reform.

The absence of procedures for judicial censure is an accident waiting to happen

By David Gwynn Morgan, Professor of Law, University College Cork

Recently, the President of the High Court (Kearns P) announced that the long-awaited judicial council for standards and conduct might be set up this year (Irish Times, April 12). Surprisingly, the present system is still the one which grew up in reaction to the absolute monarchs of the Seventeenth Century. In those times, judges held office at “the will and pleasure of the King”. Thus, if the King attempted to take away what we would call the human rights of a citizen and the judges leapt to their defence, the King’s reaction was to dismiss the judges.

So, when Parliament got the upper hand, its reaction was to establish the judges’ independence. They did this in the way which seemed best at the time, namely by providing, in 1688, that judges held office ‘during good behaviour’ and could be removed only by a resolution of both Houses of Parliament.

This arrangement was brought over, unchanged, into the modern Irish Constitution. This was unfortunate. For, by now, Parliaments are subject to the party whip and, as President Ford of the USA put it, reflecting on the somewhat similar situation of the impeachment of President Nixon by Congress: ‘You don’t need evidence: you only need a majority.’

The lame ducks thus released came home to roost in the Sheedy episode in 1999. Philip Sheedy who had been sentenced to four years for causing death by reckless driving was released early, in circumstances which mounted to improper conduct by two judges and a registrar.

Hanging over everything was the fact that, although, in this instance, the opposition parties supported the Government, it was accepted that the Oireachtas was not the appropriate forum because the danger of political interference with the judges – or the appearance of this – was plain for all to see. In the end, the three persons involved were given some additional years on their pension and resigned.

To go back to the fundamental point of judicial independence: it was accepted by politicians that a new system for disciplining judges could not be introduced without the effective consent of the judges. By the early 2000s, a Bill, which had been approved by a consensus among judges, had reached a fairly advanced stage of consultation.

The proposed Bill was, sensibly, based on the following features. First, the most important would be a gradation of sanctions to deal with offences of varying levels of seriousness. Thus, sanctions would start with a private reprimand by the Chief Justice and then move up through public reprimand to dismissal. Secondly, both lay persons, as well as judicial colleagues, would have been involved in adjudicating on allegations of misconduct. Next, there would have to be some indication of what constitutes judicial misconduct: if, for instance, a judge is impatient or sarcastic with a party who is economical with the truth, or a long-winded Counsel, that is not a ground for discipline. Finally, there would obviously have to be fair procedure for the accused judge, including a sieve for weeding out insubstantial cases at an early stage. This last is especially important, given that there are plenty of disgruntled litigants out there.

Then, in 2004, another episode occurred, when a Circuit Court judge (who has consistently denied the offence) was accused of downloading child pornography.  Attempts to remove the judge were hampered by court proceedings; and also by the fear that an election would be called before the dismissal proceedings had been completed.

In short, these two episodes show that here is an accident waiting to happen. No one can say that we have not been warned: nor that, over the past ten or so years, other satisfactory models for dealing with judicial misconduct have not been developed in similar, common law, countries, such as Australia and Canada, whose experience would be useful to us. Even in Britain, the strange contraption of the Lord Chancellor has been relegated to the attic of history. Yet, in Ireland, what followed Sheedy and Curtin was a long silence.

Unfortunately, there was a qualification in the speech made by the President of the High Court, namely that, before the new scheme becomes operational, “… it will require the provision of suitable digital audio recording facilities in all courts so that complaints can be referenced to an accurate record …” (my italics). Given the parlous state of the public finances, this may not occur for many a long year. (One thinks, by analogy, of the way in which arrangements to record the taking of the statements of suspects in Garda Stations was delayed for more than ten years, simply because sufficient Garda Stations were not equipped with the necessary technology.) One can, of course, see the need for an accurate record; but there seems no reason for a complete ban until all courts (at every level, in every locality?) have been thus equipped. Surely at least the new scheme could proceed on a court by court basis?

Labour Party’s proposals for constitutional reform a welcome addition to a much-needed political debate

Eamon Gilmore’s uplitfting ‘One Ireland’ speech to his party conference (http://bit.ly/crTAaq) this weekend ended with a set of interesting proposals for political, public sector and constitutional reform, with some pretty novel ideas such as the one to establish a Department of Public Service Reform. The major plus was just how many of the issues that were headlined appeared to overlap with Fine Gael’s recent New Politics document (covered in earlier postings on this site). By saying this, I do not in any way want to imply that Labour is somehow following in the footsteps of Fine Gael; there are plenty of indications of each party borrowing from the other – in both directions. At the micro level, it is clear that both parties want to bring in legislation to strengthen local government, to radically reform the public service, to regulate lobbyists, to enable whistle-blowing. There is also plenty of overlap in the idea of engaging with the citizens in the process of constitutional reform. Labour’s proposed vehicle is a Constitutional Convention, which would mix specialists, experts and ‘ordinary citizens’ (along the lines, I suppose, of Citizen Juries) in a root-and-branch reform of the Constitution.

Labour and Fine Gael (for now, at any rate) part company in two main respects: first, in Labour’s proposal that this Constitutional review should be widespread, an outright replacement of the existing Constitution, as opposed to Fine Gael’s objective of only reforming certain political and institutional processes of government; and second, in the proposed timescale – Labour proposes that this process should conclude in 2016, to commemorate the 1916 Rising, whereas Fine Gael wants things completed in time for a ‘Constitution Day’ by the end of its first year in government.

Clearly, there are pros and cons to both proposals, and we will all have our own views. Personally at present (this may change) mine is to err more on the side of the Fine Gael route largely on the grounds that I fear that a complete overhaul of the Constitution in all its respects would run the risk of slowing down much needed reforms in certain key areas. A basic truism of politics is that new governments have a limited time span of political capital, a short window of opportunity in which to implement radical proposals before the media and public opinion inevitably turns their fire on them, and the opposition parties start rounding on the government as jaded and in need of change. So the circle of political life continues.

Trying to change everything, inevitably will require a long, drawn out process – as Labour readily admits with the idea that this should take until 2016 to complete. The danger, thus, is that by trying to change everything, we may end up changing nothing.

And it is not as if there haven’t already been attempts to consider widespread constitutional reform before. In fact, in the past decade alone there have been no less than three constitutional reviews by Oireachtas Committees – the third of these is still ongoing (http://bit.ly/aIC2hu). None of their proposals have yet seen the light of day. It is undoubtedly true that a Constitutional Convention would carry more political weight than an Oireachtas Committee, and so there could well be reason for arguing that it should be given a chance. But it is a pity that earlier proposals by these committees, and for that matter by other influential bodies such as TASC (http://bit.ly/arK0KM), would appear to be just swept aside by yet another constitutional review process.

Finally, why 2016? Commemorating some great event in our history may well be symbolically useful if such a review is to succeed in the referendum, but is that really the best event for marking a new ‘One’ Ireland?

As ever, we can all find things to quibble about. The fact is that whichever party forms the next government will have to do so in coalition with at least one other party – and the best money right now is on a Fine Gael-Labour or (if Eamon Gilmore gets his way) Labour-Fine Gael coalition. Compromise on the details will be needed if any movement is to happen on the important principal of real and sustained political reform. The Fine Gael and Labour party leaders are to be commended for showing real commitment to this agenda. What we next need from them is political imagination and courage to ensure that the big picture doesn’t get lost between the cracks of inter-party squabbling. Ireland deserves more.