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.