After the Seanad….

Posted by Séin Ó Muineacháin

This is a copy of an article I wrote for the journal Public Affairs Ireland when Enda Kenny first floated the idea of Seanad abolition. It deals with the political and constitutional implications of such a move.

The debate on the necessity of a second house of the Oireachtas has been reawakened in Ireland in recent weeks. This has focused the public mind on what the consequences of such a move would be. The Irish constitutional lawyer, Gerard Hogan is on record as saying “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”. The abolition of the Seanad would have a number of ramifications for the Irish legislative system, and would require significant amendments to articles in the Constitution that do not necessarily just involve the working and composition of the Seanad, but also those that concern its relationship with other institutions of the state, such as the Dáil, the President and so on.

Seanad Éireann, as exists today, currently has two types of function. These can be categorised as being legislative and systemic. The legislative functions can be best described as relating to the passage of legislation through the Oireachtas, and the role that the Seanad plays in relation to that. Systemic functions refer to the place that the Seanad and its members have in certain constitutional mechanisms and institutions.

The Seanad’s powers in the legislative process are definitely weaker than those of the Dáil at present, and this is often put forward as an argument in its own right for the abolition of the Seanad. However, despite the lack of powers to veto or meaningfully delay legislation the major advantage that the Seanad is seen to have is that legislation is often considered in a more reflective, non-party political atmosphere than in the lower house. Moreover, the fact that it has to be considered in a second arena, usually means that there is some amount of time between its introduction in the Dáil and its promulgation by the President. In the absence of the upper house, it would make sense to look at other mechanisms to allow for the timely scrutiny of bills before they become law.

In Luxembourg, there is a mandatory three month period between the time that the single Chamber of Deputies can vote to accept a bill for discussion and the time that it is voted into law. In addition to such a ‘cooling off period’ mechanism like this, consideration could also be given to giving the Dáil extra avenues by which it could further scrutinise legislation.

Strengthening of the committee system would be a sensible move in this regard, in that it would give TDs an ability to develop expertise in a particular policy area (using backbenchers as a resource), something that the Seanad was supposed to have had among its membership through its vocational element or through the university senators. Luxembourg goes a step further than this in that a Council of State of expert advisors appointed by the Grand Duke offer opinions to the Chamber on all draft bills that are tabled by the Government, and provide a sense of cool reflection on prospective legislation that is often attributed to a second chamber.

Moreover, the relationship between the Dáil and the government would need to be redefined in order to increase the Dáil’s relevance in the legislative process. In their submission to the 2002 Seanad reform report, Professors John Coakley and Michael Laver argued that standing orders in the Dáil would also have to be changed to shift dominance away from the executive, and to deprive it of the extensive powers it has, such as being able to force a guillotine motion on legislation. It is worth a look at other unicameral parliaments to see how this would work. In Greece, the parliament’s business is decided by a presidium composed of representatives of all the main parties, avoiding dominance of agenda-setting powers by the government and including input from all parties. In Norway, the Standing Committee on Scrutiny and Constitutional Affairs supervises the exercise of the scrutiny functions of parliament and has an explicit role in acting as a watchdog on the government. Of course, such proposals would also be need to be tempered by the fact that party discipline, like most European democracies, is extremely strong.

A further little known legislative function of the Seanad is the “Article 27” procedure, whereby a majority of the members of the Seanad and a third of members of the Dáil can petition the President to hold a referendum on a particular law. Abolition of the Seanad could lay the groundwork for another form of popular initiative, not unlike a version of such that existed under the Free State constitution or quite similar to the provisions made for citizen’s initiatives in the Lisbon Treaty.

Turning to more radical constitutional change, the membership of the Dáil is an area that could be examined. There are different routes by which a citizen can become a member of the Seanad, all of which could, and have sparingly been used to bring experts in particular fields into parliamentary life. It is questionable whether or not such experts would be elected to the Dáil under the current arrangements, so thought might be given to a list system that would allow parties to place experts on their electoral lists who might not normally be elected.

One of the more systemic functions of the Seanad is its role in removing officers of state such as judges, the President or the Comptroller and Auditor General. Provision could be made for Dáil committees to hold hearings on such removals, or indeed the scope of the Dáil could be expanded to hold hearings on appointment of such individuals, and other officers of the state such as the Ombudsman or the Governor of the Central Bank. A further function that it shares with the Dáil is the power to declare a state of emergency. This could be replaced with a requirement for a supermajority (two-thirds) of the Dáil to ratify such a declaration.

Members of the Seanad can also be appointed to government. No more than two such appointments have been made in the history of the State, and it is unsure whether an appetite exists for appointment of non-members of the Dáil as ministers. It could be decided to revert to a variation of the system of ‘extern’ ministers that existed in the early years of the Free State, which allowed non-members of the Oireachtas to be appointed to government. Indeed many countries separate members of the executive from members of the legislature, such as Norway, the Netherlands and France.

Of course, the Cathaoirleach of the Seanad is also a member of the Presidential Commission and the Council of State. An alternative officer of the state could be appointed to replace them, such as the Ombudsman or the Comptroller or Auditor General, or those vacancies could be abolished.

Abolition of the Seanad would require a facelift for the legislative process in Ireland, and extensive surgery on the Constitution. It could well present itself as an opportunity to perform an overhaul of the institutions of the state, in order to incorporate the functions that the Seanad nominally has at the moment, or even to improve the exercise of those functions by the Dáil.

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10 thoughts on “After the Seanad….

  1. For the reasons put forward by Sean O’Muineachain above and Gerard Hogan, I am not in favour of the abolition of the Seanad.

    I consider cries for the Seanad’s abolition to be a mob knee-jerk reaction to our present economic difficulties for which the Seanad bears no blame – as compared to the Dail!

    I have been involved in politics lifelong , one way or another, like most thinking Irish people, though I do not have any academic background in politics like some illustrious people here – I did Computer Engineering at WIT and Computer Science at Trinity – but I do have the experience of provincial journalist ( Munster Express, Waterford, Photographer, having started life as an Executive Officer in the Custom House, or rather , mostly out of it over in the sadly defunct Scotch House ! ) .

    And I am a conservative, an old age Irish Druid rather than a new ager, so much for background ).

    More than ever in this our hour of economic crisis , we have to especially do all we can to preserve the venerable organs of the State itself , such as the Senate.
    Perhaps we would do better to jettison such wonderful departmental entities like the Nuclear Section of the Department of the Environment first, staffed by a very fortunate Principal Officer and under him usually ten other high permanent officers of State, who are equally very fortunate citizens of this State? ( I think it’s a hangover from the Carnsore Point protests in which I, as an Old Age Druid, young then, took part) .

    Maybe we could ask local councillors too to serve the State voluntarily once again without salary , that most of them do not need, maybe the esteemed and much-maligned Senators will accept half their present salaries to try to keep the Senate and all our State institutions from the knee-jerking mob baying for the closure or capping of our established Irish Parliament , thus endangering our parliamentary and constitutional system itself , with the prospect that we may end up worse for all our capping and cutting at the end of the day.

  2. Rather than participate in the proposed tearing-down of a democratic and traditional bastion of the worthy institutions of this State , as seemingly demanded by the Dublin mobs outside Parliament egged on by loud media personalities, I would like to see the formation of a conservative forum, perhaps even a club, in which concerned citizens, especially parliamentarians, could meet to consider and debate the wisdom of such radical proposals.

    Certainly nowhere in the country, least of all here in Kilkenny, the City of the Confederation, do I hear of or see any demand whatsoever for the abolition of Seanad Eireann.

    And from Enda Kenny I have always considered the proposal to have been originally a populist gimmick, not much mentioned by him now as he preaperes to receive the mantle of Taoiseach.

    Now if it were a call for the abolition of Anglo-Irish Bank…YES!

  3. Apart from strengthening the committee system I would suggest the use of something like the Australian Main Committee to deal with second reading and detailed scrutiny of bills. This system would allow for more cross-party cooperation and consensus.

  4. What is required for the Irish political system in terms of reform is equal to expecting a person who has been obsessed with GAA and only GAA all their life being asked to never play or watch GAA again but instead switch completely to rugby instead.

    It seems while we obsess over the details of reform we ignore the reality and the mindset of the people who are expected to be involved ie the TDs themselves.

    Thankfully some of the worst examples of crony TDs – from all parties – are retiring but it’s a massive risk that those who are standing again have what it takes to implement the scale of reform needed in the Irish political system.

  5. The abolition of the Senate will achieve nothing in the massive Scheme of things we face.
    It is simply a dishonest and cynical general election gimmick.
    Invoke the Emergency Powers Act 1939 to immediately and decisively close down Anglo-Irish Bank, the Garda to take all the bank’s computers and books away and brick them up in quarantine forever in the basement cells of Mountjoy Prison before the television and Press cameras of the world’s media.

    This should have been done first day – it will show the financial workd that we have copped ourselves on at last!

  6. ( Of course all Deeds of Ownership etc ( that the Irish taxpayer has dearly bought! ) to be separated out first – the Garda Fruad Squad in the bank has probably already done this , and deposited for safe-keepong on behalf of the Government and People in the Bank of Ireland, College Green)

    But I see absolutely no benefit whatsoever to the economy emanating from abolition of the Senate.

    Again it’s a knee-jerk reaction being postered around by policy-less Eamonn Gilmour for the upcoming general election, but now forgotten by Enda Kenny as he prepares to accept the mantle of Taoiseach, the only ‘policy’ Enda and Fine Gael need they’ve got – in the person of Michael Noonan!

  7. Given that the reason why a referendum on abolition would delay the election is that the necessary legislation would take a long time to introduce and pass, I wonder whether it would be feasible to have a referendum on reform instead. This would just mean replacing those provisions of the constitution concerning the election and composition of the Seanad, which wouldn’t have such far-reaching consequences for the constitution. I suspect, though, that the time needed to debate such a proposal would still delay the election.

  8. Yes , Fergus, you’re right.
    Anyway . looking at a smiling Enda Kenny on RTE News last evening, sure he only dared say a little word about tourism as he happily awaits being crowned as Taoiseach and will have no major or contentious issue upset that magic moment, understandably.
    No party leader is going to upset their Senators at this late stage , or the Senate’s important Nominating Bodies either.
    And with a general election at the end of March , a new Senate will have to be chosen under the present rules, for probably another four years.

  9. “Gerard Hogan is on record as saying “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””

    But he’s wrong. There would be a pretty extensive change to the constitution, but it’s not complex – just a bit of deleting. And there’s no sense that it’d open a Pandora’s Box in the way the abolition of the office of Lord Chancellor did in the UK. How many pieces of legislation would need to be changed? A few, but these just govern the operation of the Seanad, so they become irrelevant.

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