Does the referendum on the Court of Appeal contain any hidden dangers?

courtsBy Michael Gallagher

Most of the debate over the 4 October referendums has focused on the abolition of the Seanad, understandably enough, but there’s another referendum too: the 33rd amendment on the establishment of a Court of Appeal. Sometimes when there is more than one referendum on the same day, the ‘minor’ proposal is seen as uncontentious and passes without difficulty, but on other occasions its very lack of visibility can count against it, as when voters finally become aware of it some of them suspect that it is being deliberately kept quite as the political class is trying to smuggle something through without their noticing, so to speak. It may then take just one well-delivered blow to finish it off, as happened two years ago when the presidential election overshadowed the referendum on extending the powers of Oireachtas committees, and the intervention of the former Attorneys-General was enough to tilt the balance against it, even though after the event most voters seemed to favour the idea that it embodied and could no longer recall the arguments that had led them to vote No.

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Would a reformed Seanad be the worst outcome of all?

By Michael Gallagher

Never in its history has the Seanad been the focus of so much attention. Is it a vital bastion of democracy without which governments would be able to trample all over everyone’s rights, or conversely an expensive anachronism draining resources that could make a huge difference elsewhere?

Probably neither. It does a little bit of good – it provides a venue where legislation might be scrutinised in a more reflective atmosphere than in the Dáil, though no-one seems to have attempted to quantify its impact. In an article in the Sunday Business Post of 1 September Senator Katherine Zappone writes that ‘members of the Seanad have tabled 529 amendments to 14 Bills that have been passed over the past two years’. That’s a bit cryptic, but even if it is saying that all 529 amendments have been passed, it leaves uncertain how many of these represented good ideas that Senators and no-one else thought of, and how many were government amendments that happened to be introduced in the Seanad rather than the Dáil. Senators also take part in Oireachtas committees, which pretty much everyone seems to agree should have a larger role than they do – but on the whole the committees, if given a more meaningful role in preparing legislation and scrutinising government, would function perfectly well without Senators.

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Possible referendums on Articles 26 and 34

By Michael Gallagher

Earlier this week the Minister for Justice announced proposals to amend several articles of the constitution dealing with the role of the judiciary, specifically to add a Civil Court of Appeal and a Family Court, and to reconsider the ‘one judgment rule’ in Article 26.2.2. Details in a press release of 17 July 2012:

1. Add a Civil Court of Appeal and a Family Court structure. This would reduce the load on the Supreme Court, which is responsible for a lengthy backlog of cases, and would also narrow the range of cases that reach it. Continue reading

Should we be able to recall our TDs?

By Michael Gallagher

Recall of elected representatives occasionally surfaces in discussions of political reform, and has been given topicality by the adverse publicity surrounding the Wexford TD Mick Wallace and his tax affairs. It also arose last month (June 2012) in the US state of Wisconsin, where attempts, ultimately unsuccessful, by local Democrats to pull the plug on the term of Republican governor Scott Walker got wide publicity outside the USA in this presidential election year.

The basic idea is that an elected representative is subject to ‘recall’ by his or her voters. Typically, a certain number of signatures on a petition are required, and if this number is reached a referendum on the incumbent’s continuation in office takes place. Continue reading

‘Forcing a referendum’ on the next EU treaty via Article 27

By Michael Gallagher

‘Independent TDs devise plan to force referendum’ reads the headline on the Irish Times site on 1 February. The cunning plan, it turns out, is that they would aim to use the provisions of Article 27 of the constitution to bring about a referendum on the recently-agreed EU treaty (or quasi-EU treaty) if the government decides that it does not have constitutional implications and hence need not be put to a referendum. Article 27 makes provision for a certain number of members of the Houses of the Oireachtas to petition the President not to sign a bill ‘on the ground that the Bill contains a proposal of such national importance that the will of the people thereon ought to be ascertained’ (27.1).

(Clarification 3 October 2013, in the context of the abolition of Article 27 being an aspect of the Seanad abolition debate: The previous paragraph was originally worded without sufficient care. It is worth emphasising that the President does NOT have the power to put a bill to a referendum, despite the apparently widespread belief that he or she does. The power that he or she has is the power not to sign a bill, if petitioned by the specified number of parliamentarians, unless such a bill has either been put to the people within eighteen months and not vetoed by them, as explained below, or has been passed by the Oireachtas again within eighteen months and following a general election. Even the Referendum Commission’s Guide to the Seanad referendum (p. 6) implies that the president does have the power to put bills to a referendum – ‘This possibility of the reference of Bills to the people by the President will be removed from the Constitution’ – but given that that the first paragraph of this post originally gave the same impression I am in no position to cast aspersions.) Continue reading

What happens if a president goes rogue?

By Michael Gallagher

The question of a presidential attempt to refer, delay, or even veto bills that he or she does not like has surfaced a couple of times during the campaign so far. First, Mary Davis seemed to suggest that she would not rule out referring a budget to the Supreme Court for a decision on its constitutionality, and then, in the Late Late debate on 30 September, Dana Rosemary Scallon declared that she would refuse to sign a bill that she felt threatened the constitution. Continue reading

Should Fianna Fáil run a presidential candidate?

By Michael Gallagher

FF has got itself into something of a tangle over the presidential election. Torn between a range of options that seems to proliferate all the time – run its own candidate, facilitate a FF member to run as an independent, facilitate any independent who requires signatures to secure a nomination, allow each of its Oireachtas members to do what they want, or refuse to allow any FF Oireachtas member to assist anyone to secure a nomination – the party seems to have ended up in a situation from which there is no simple way out and, moreover, to have stirred up the first speculation about a leadership heave or a full-scale split into the bargain. Continue reading