‘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.)

Article 27 may not fulfil the hopes that some people may be vesting in it, though. For one thing, to get such a petition off the ground is no trivial task. It must be endorsed by at least a third of TDs and a majority of Senators. In the Dáil, when the government took office it had 113 of the 166 TDs, leaving only 53 (32 per cent) in opposition. Even though a few erstwhile government TDs have jumped ship since then, it would still require pretty much every non-government TD to support such a petition if the figure of a third (ie 56 TDs) is to be reached).

In the Seanad, the government had 30 of the 60 seats when the 24th Seanad met (John Coakley’s chapter on ‘The final Seanad election?’ in How Ireland Voted 2011, p. 258). The two opposition parties, FF and SF, had only 17 senators between them, with the other 13 being independents. So securing a majority of support in the Seanad would require the backing of all non-government senators plus some government defection(s).

Even if these hurdles were met, the battle would be far from over. The President would be obliged to consult the Council of State before making a decision but that decision would be his alone. In favour of calling a referendum would be the point that it could hardly be disputed that this international agreement is a matter of ‘national importance’. On the other hand, given that no referendum has ever taken place in the history of the state except on the matter of changing the constitution, it would be a dramatic break with past practice and convention if the President were to bring about a referendum that is not constitutionally prescribed. Notwithstanding this, it might be argued that just because Article 27 has never been used this does not mean that the Article has somehow ‘lapsed’ through desuetude – the Icelandic president also has powers that were thought to have become dead letters through non-use only to prove very much alive when presidents made two referrals of bills to the electorate in recent years.

The real sting in the tail of Article 27, though, comes in 27.5.1.i, which talks about the bill being approved by the people ‘in accordance with the provisions of section 2 of Article 47’. Those who flip through the pages of the constitution to consult this article discover that an Article 27 referendum is not decided, as constitutional referendums are, by a simple majority of votes cast. Instead, the bill that is being put to the people is deemed to have been approved by them unless (a) a majority of votes is cast against it and (b) the number of votes cast against it amounts to at least a third of the total electorate (47.2.1). The reason for the second condition, Éamon de Valera explained in 1937, was to prevent intense minorities being able to veto bills that had the tacit consent of the majority.

This second requirement is onerous. If, say, the votes ran 60–40 against the treaty, a turnout of 55.6 per cent would needed for this to constitute a veto. If the No vote was 54% (it was 53.9% in the first Nice referendum, and 53.4% in the first Lisbon referendum) then turnout would need to reach 61.7%; since 1972, only once (divorce in 1995) has turnout reached that level in a stand-alone referendum, ie one not taking place simultaneously with a general election. The No vote in the referendum on extending the powers of Oireachtas committees in November 2011 amounted to just 29.1 per cent of the electorate, so had that been an Article 27 referendum the people would be deemed to have approved the proposal. In the history of the state, No majorities comprising at least a third of the electorate have been few and far between. The two electoral system referendums way back in October 1968, the first divorce referendum in 1986, and the referendum on restricting the availability of abortion in November 1992 (same day as a general election) are the only four where the No vote has amounted to a third of the electorate or more.

And, as a final blow to those who hope that Article 27 might be a route to prevent the government of the day signing up to this treaty, Article 27.5.1.ii states that even if the people do veto the bill in the manner required by Article 47, the bill can be passed if Dáil Éireann passes a resolution to that effect, within 18 months of the President’s referral of the bill to the people, following a general election. So, if this bill were seen by the government as central to its programme, then even if it were vetoed by the people the Taoiseach could dissolve the Dáil and, following a general election at which, the polls currently suggest, the current government would probably be re-elected (see Adrian Kavanagh post 29 January 2012), simply reintroduce and pass the bill.

Nothing is impossible these days, but it seems unlikely that Article 27 will prove to be a route by which the government is prevented from signing the treaty.

Advertisements

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

  1. Thanks for this post.

    Two points that legal eagles might have a view on, the first I think, less important.

    (1) Art 27 refers to Bills. Will the treaty necessarily be brought before the Oireachtas in the form of a Bill? I say this is less important, in that the Treaty eventually gets implemented in the form of legislation specifying e.g. deficit and debt limits etc.

    (2) In either of the above cases, is Article 27 not limited to non-Money Bills, (by virtue of the preamble in the article which limits its application to bills “which shall have been deemed, by virtue of Article 23 hereof, to have been passed by both Houses of the Oireachtas”) and in this case, is there any precedent which determines whether a bill implementing such a treaty (or the treaty itself) is or is not clearly a Money Bill?

    People generally think of Money Bills as ‘financial legislation’, which is more or less true, but the definition of Money Bills in the Constitution Article 21, seems to me (as a non-lawyer) to be more precise than that, in referring to legislation involving specific expenditures or revenue charges etc., rather than to legislation providing a framework for same. The Constitution specifies a fairly elaborate procedure for resolving a dispute on this issue.

    I posed some of these question on a blog post on January 18th, but don’t think I got any clarity from comments on the issues above.

    AK

    • I’d love to know the answers to those questions too. The only thing that occurs to me that might be relevant on point (1) above is that it took nearly 50 years from Ireland signing up to the ECHR until it was finally actually incorporated into law by a bill. But, as you say, I guess that’s not such a big deal as there’ll almost certainly have to be legislation for this anyway. But point (2) above does indicate yet another possible hurdle to the article 27 mechanism ever being used. Kind of sounds like money bills could be excluded. Hadn’t realized prior to this how potentially elaborate the mechanism for deciding whether a bill is a money bill could be. In brief, initially the Ceann Comhairle gets to make that call. The Seanad, though, can object. The President then forms a Committee of Privileges (my non-legal interpretation that is the he only needs to consult with the council of state on this, not the government). This is formed of equal numbers of Senators and Dáil Deputies (plus a Supreme Court judge to chair and break ties). On what basis the President would chose the membership is a mystery to me (anyone know if there is any legislation dealing with this?). Or could the President’s own leanings colour its makeup? I’d equally curious to know if such a committee of privileges has even once been formed to adjudicate on a bill post-1937. I strongly suspect the answer is no. A quick internet search of Oireachtas proceedings found that a very similar procedure had indeed been invoked under the Free State Constitution (1935 was the last record I could find). But, then again, the first Seanad was a much less docile entity than its current successor. I’ve a wistful hope that somehow article 27 will get to be used. It’s the closest thing to direct democracy that’s in the constitution. Alas, there are probably far too many hoops to jump through. But, if there are any genuine legal eagles out there, some clarity on article 27 would really be greatly appreciated.

  2. Can’t see how the Government, regardless of how much effort the EU drafters have put in to avoid it, will be able to defuse the growing political and public pressure demanding a referendum. This Art. 27 gambit may not work, but I suspect every avenue will be explored until the Government is forced to give in. There are an awful lot of people who want the opportunity to vote ‘no’ to give vent to their anger about the EU in general, Germany’s apparent dominance in the decision-making process, the ECB, the Anglo legacy cost, the impact of the continuing fiscal adjustment, the structural reforms the Government is making and planning to make, you name it.

    This is both encouraging and depressing. It is encouraging that a majority of voters seem determined to exercise their ultimate authority; this is to the eternal credit of the Irish people and it is wonderful to behold. But it is depressing that politicians have consistently failed to engage with their voters to secure their consent to empower and resource their TDs to give effective voice to the concerns of voters, to exercise restraint on governments between general elections and to be able to ratify international agreements entered in to by governments without having to resort to securing the direct consent of the people.

    This is a slightly grubby (almost – with the UK and the Czech Republic out) EU-level deal to allow Chancellor Merkel and the leaders of other ‘creditor nations’ to re-secure the trust of their voters so that they will consent to parting with some treasure as this will be required to move towards a resolution of the Euro crisis. It should be treated as such by the Oireachtas without troubling the people.

    But the people seem to want to have their say – and I suspect they will.

  3. This Article 27 approach is a, we have nothing to loose gambit. It is a cheap, in money terms route, to a referendum but the hurdles are too high and the pit falls as explained above are too great. So it will have to be a challenge to the High Court.

    This government have sworn by their actions not to allow this election to go ahead. However, when they realise they will not have an ounce of credibility left, they will fall back on the usual strategy that the ATM,s won’t work, the dole won’t be paid or will be halved and that Croke Park would have to be abandoned with dire consequences to public sector pay. These will be the three planks of the governments election strategy. As Varadkar has said, these referendums seldom turn out to be what they are supposed to be about and the government have already made sure that this one will be no different.

    I think there will be an election, they will not learn the lessons of history and will be tempted by their arrogance into believing that they will easily win the election. They would love to parrot that the Irish people have re-endorsed their support for the coalition.

    Correct me if I am wrong, but the FU now allows Ireland to continue with its MOU program but would not allow Ireland to get bailout No.2 that the government knows will be required. This is an attempt by our own government to put an “electoral bremse” on the democratic inclinations of the Irish people. The government have anticipated that an election might be forced on them and have tried to corral voters into having to endorse the FU treaty.

  4. The legislative referendum provision in article 27 is most interesting; it’s an echo of some direct democracy mechanisms in early versions of the Free State constitution. If my memory serves me correctly, either 2/5 of the Dáil or a majority of Senators could suspend a new bill for three months, during which time either a citizens’ initiative or a further Seanad vote would send it to a referendum. Article 27 was previously mentioned by some TDs around the times of NAMA and the bank guarantee.

    The imminent referendum on Seanad abolition is another factor to add to the equation. There was even talk the Seanad might be summarily abolished at the same time as the referendum. For even some government Senators this might be a tempting opportunity to make a case for the Seanad’s relevance. Triggering such a vote, regardless of outcome, would be popular. Might make some voters think twice before casting their vote on Seanad abolition. A Seanad majority for such a petition isn’t perhaps as unlikely as it might be in ordinary circumstances.

    I like the general idea of a constitutional “emergency brake” for very important matters where, if there’s disquiet amongst a significant minority of the population, then some kind of brake can be applied. Iceland, as mentioned above, was a good example. There are other examples in various countries. Latvia has a constitution dating back to the very same period that the Free State Constitution was written. To this day it has rather similar provisions where a 1/3 of MPs or the President can suspend a bill for two months. A citizens’ initiative within those two months will then trigger a referendum.

    Denmark also contains a similar mechanism to article 27 (see section 42 of their constitution: http://www.servat.unibe.ch/icl/da00000_.html ). A 1/3 of MPs can trigger a referendum on most bills by petitioning the president/speaker of their parliament (money bills and one or two other categories like naturalization bills are excluded). There’s actually no requirement that the bill even be of national importance. There are far fewer hurdles to leap that our own provision. Nonetheless. this mechanism has only been used once (in the 1960s for a series land acts, which effectively ended these bills). The provision is not used much but it arguably has had an impact on Danish parliamentary dynamics (there’s alway the underlying implicit threat that this provision *might* be used).

    As I’ve mentioned here before, even if the Seanad is abolished I hope article 27 is kept. It would still be a lot weaker than the Danish equivalent (almost automatic government control of then Seanad renders the provision currently so weak as to be nearly unusable). In the context of either a genuinely independent Seanad or no Seanad at all, it becomes useful. Requiring a 1/3 of MPs and the consent of the President would still be a significant hurdle. Plus there’s also the possibility of a supreme court challenge to determine if it really “contains a proposal of such national importance that the will of the people thereon ought to be ascertained”.

    • Is it not time to scrap the constitution altogether? A document that has enabled a near perfect synthesis of corporatist, trade union and political cronyism in the dear old, nearly republic of Ireland. A toxic brew, so perfect, that it has as near as makes no difference destroyed the state? Just look at the ‘blanket guarantee’ given by one man the late Brian Lenihan which the constitution again enabled or NAMA a 31bn ECB backed bond scheme put through the Dail on another nod and wink, “only game in town” charade. The biggest joke of all, NAMA a “non money bill”! In reality, 31.5bn of bonds were issued as the non money entity was hived off to an SPV silo, with the usual raft of “professionals” laughing all the way to their respective banks after drafting 63 pages of legalese.

      Everyone has “invested” in this constitution because they have spent so many years fawning over it and it is both the memorandum and articles of association of a great little gravy train. The whole thing, a pleasure trip, for constitutional lawyers who get paid to fence with shadows while sounding self important.

      France on it’s 5th Republic and we not even reached the first one? The people have been totally sidelined by their own constitution, an old civil war relict drafted by De Valera and signed off by the Roman Catholic church. A document that allowed party apparatchiks to get their hands on the levers of power to the exclusion of any democratic accountability to the people, save for elections that only take place after political collapse, and now we are being gerrymandered at European level by our own political hacks. General elections amount to nothing more than a string of false manifesto’s we all change boards and the game starts over again. It amazes me that people are so enslaved to this document and to the status quo. which mark my words, will lead us to another horrible conflict. A few seats less in the Dail, concentrating even more power in the Executive is now considered to be an acceptable reform for a failed state. It is a admission that we will not be able to do anything without civil unrest.

      • Glad if I can be of some service as a punchbag for all that anger about the system, the state of the world, and all the errors of the past (mostly justified I’m sure)! 🙂 As I’ve said here several times before, my number one reform would be a citizens’ initiative mechanism like Switzerland allowing citizens to alter their constitution as they see fit, where you could, I’m sure, try to convince people to scrap the constitution as you argue above or whatever other changes you desire. And apologies if my rather theoretical ramblings about constitutions deeply offends your obviously well-honed sense of injustice. But, at the end of the day, these are nothing more than words on a screen. I’m sure many make me appear like a self-important prat! 😉 But I risk that in the hope one or two, every now and then, will be at least a little interesting or thought-provoking to someone. I obviously have the confidence (or perhaps arrogance) to think that, or otherwise I wouldn’t bother posting here at all. Quite possible that any readers of this blog vehemently disagree! 🙂 Bloggers and internet posters, by definition, feel they have something important to say, even if that’s recounting what cereal they had for breakfast on twitter :LOL: People always have the option not to read. I find the general topic of this blog interesting anyway. You post here too. I guess you likewise feel you have something worthwhile to contribute.

  5. Finbar, apologies if I have said anything to offend you as it was not intended. I find what you have to say interesting and informative and thanks for taking the time and trouble to post! I am frustrated that good people like yourself who are very genuine are sidelined. I find it frustrating that a few people have taken it upon themselves to try and control and dictate what the good people of Ireland will be required to do for the next two decades at least. There is not a single day goes by without some new stupidity or irrational scheme being revealed. The goodwill and good nature of the Irish people is being assailed and taken for granted like never before.

    I could sit here and pontificate, in some semi erudite terms, about cognitive dissonance theories or about the formation of ideologies. However, all I will say for the moment, is that, I believe our government are way out of step with what is required of us, as a people, to bring this crisis under control. They have taken the least line of resistance each time a serious decision required to be taken. The decisions once taken are then defended with the mind numbing ‘objectiveness’ of whatever party they have sworn up to.

    The correct decisions were not hard to take but each decision was driven by a sort of cunning, tried and tested, which only works in the dysfunctional world of party political apparatchiks and how they ‘relate’ to each other. A sort of “fixer” mentality, which when applied to real politik at an international level amounted to dysfunction.

    • Apologies myself! Overreaction on my part to rather broad and general comments taken waaaay too personally. You obviously care a lot about our political problems (as does everyone who posts here I’m sure). Have participated in quite a few internet forums over the years (some were quite vicious, which would be laughable given the rather humdrum and ordinary subject matters of most of them). Must be getting out of practice given how far too thin-skinned I seem to have become.

  6. @Michael
    Great to have the formal position regarding Art 27 set out, along with a view of how the current effort to use might play out.

  7. The Art 27 mechanism is way too cumbersome, which makes triggering of a referendum an area ripe for reform if the so-called Constitutional Convention’ ever sees the light of day. Long before any Art 27 procedure acquired any momentum, I anticipate the Government would decide to bow to the inevitable political reality and decide to go for a referendum. Lose an Art 27 triggered referendum and they’re political toast anyway; so they might as well go down fighting on a referendum wording of their own choosing rather than gambling on factors like turnout operating in their favour on polling day.

  8. The legal niceites are interesting but the real issue is the level of dishonesty and disingenuous about how the debate is being structured.

    We have a government that wants to make us believe that getting a lower interest on debt we should never have been paying is bad enough but that fact Irish people are so intellectually lazy and allow themselve to be diverted is amazing to behold.

    What is our government doing to have the capital debt reduced and how does this treaty help to do that?

  9. The real issue is that the ‘government’ have absolutely no regard for anything. Political TD reps were trained like animals to speak on important issues but did not now seems themselves understand them at all. Cant all be of unsound character. Other wise we would not be talking to ourselves, as we are.

    Really must ask why. Why is there this varoom of defiance towards democracy. Towards indifference, to the contemp thats so obvious for Lucinda Creighton and Leo Varadkar. Nothing ordinary about their actions. Can presume they are in them selves of a sheepish nature and in a way ignorant of their own behaviour. But..

    It really is about much much more than this referendum. Are they so beneath the rest of us that are unable to think indpendently and make judgements on whats right or necessary. To not understand threats or dangers. Goading us to do something. Laughing at our nature. We like to discuss and from Ancient times known towards deferance when not riled. I totally Loath the goading after what happend in North. Squirm when Mr Kenny makes political across the floor unable to see the Irony of his own behaviour and existence in our time. Others will do it I will merely set the stage. To play with such contempt of future history of our country with astounding ignorance and weakness.

    Need to discuss politically come out of our post famine shell not accept leaders. Accept more inclusive politics. Devise new way of sharing business and living. Tall order and ridiculously shockingly landed on our in our time lap.

  10. @Finbar
    “As I’ve said here several times before, my number one reform would be a citizens’ initiative mechanism like Switzerland allowing citizens to alter their constitution as they see fit, where you could, I’m sure, try to convince people to scrap the constitution as you argue above or whatever other changes you desire. ”

    As an example of how Swiss-style direct democracy might be applied in this republic within our 1937 Constitution, I offer the following two efforts – both here
    http://www.2nd-republic.ie/files/1.pdf

    1) from 1987 on p. 89 and ff…
    2) from 1996 on p. 24 and ff…

  11. @Donal

    Thanks Donal. Your proposed constitutional wordings for citizens’ initiatives are very interesting.

    Article 27 has interested me for two reasons. One is obviously its direct democracy associations. The original Free State constitution allowed a 2/5 Dáil minority or a Seanad majority to suspend non-money bills for 3 months. A citizens’ petition within that time (or further Seanad resolution) would then send the bill to a referendum. Article 27 is the weak remnant of that I guess.

    I also find article 27 interesting because it gives explicit positive powers to an opposition or a qualified parliamentary minority. That doesn’t seem particularly common. That general idea has been of interest to me for a while, sparked off at the time of the inquiries referendum. I found the German committees of inquiry provision, which gives a Bundestag qualified minority of 1/4 the right to initiate and conduct an inquiry, very intriguing. I thought they were very definitely onto a good thing with this type of approach. The Danish mechanism, which allows a third of MPs to trigger a referendum on non-money bills, very much also follows this theme (same with the Free State provisions mentioned above). Requiring super-majorities is the more usual approach (this at least allows a significant minority to block a decision). But turning that on its head and actually giving a minority certain positive rights is IMO a very interesting idea. Suppose that 2/5 of TDs could suspend/delay non-money bills for, say, one year (rather like a traditional second chamber). I struggle to see what would be so bad with that. Can actually see a lot of potential upsides.

    Control of parliamentary procedures and standing orders is another means by which a parliamentary majority seeks to impose its control. Some countries require a super-majority (e.g. 3/4 in Sweden) to change standing orders (rather than the usual simple majority). A super-majority isn’t always necessarily good though. It can also make it very difficult to change a bad system (Sweden also allows a government to amend these using the same approach as used for constitutional change). How about giving a qualified minority positive rights in this regard. Suppose two different routes could be used to change standing orders; one option being a 3/4 super-majority and the other being a petition by a 1/4 of MPs. The petition would trigger a referendum on modification or replacement of the standing orders. Perhaps a limitation that any individual MP could be involved in only one such petition within a parliamentary term, or fixed number of years, would be appropriate to cut down on the frequency of such referendums. Am playing around with these types of ideas at the moment. Apologies for this tangent! 🙂

    Going back to citizens’ initiatives, would be very much in favour. As far as I can see, in modern times when a new constitution is drawn up, then there’s a pretty good chance it will contain some direct democracy provisions. Unfortunately, representatives in countries with long standing constitutions usually don’t seem so keen on introducing them. Germany and Italy are two good examples (with constitutions and political systems reformed after the Second World War), Germany with citizens’ initiative provisions in most of its Lander, and Italy with its “referendum abrogativo” (where a citizens’ initiative can strike down most types of legislation, or even only certain aspects of existing legislation). Then there were a whole slew of new constitutions in Eastern Europe and the Baltic States when the Iron Curtain came down: Lithuania, Slovakia, Hungary, Croatia and Macedonia all contain direct democracy provisions. Plus Latvia’s 1922 constitution was re-activated. The direct democracy provisions in this are remarkably similar to those that were originally in our 1922 Free State constitution (just substitute the role of the first Seanad for their President). Most of these mechanisms for initiatives set higher bars than the Swiss case, but they nonetheless do exist, and are used with varying degrees of frequency. And, of course, even the new draft Icelandic constitution contains significant direct democracy/citizens’ initiative provisions. And throw in the Danish ability of a parliamentary minority to trigger a referendum on legislation, and it’s easy to see that quite a few European countries are far from being entirely pure representative democracies. All perhaps interesting in the context of the very recent sudden heavy emphasis by some of our politicians on the “representative” aspect of our democracy (particularly in the face of a possible referendum on the fiscal compact, even the potential success or failure of a court challenge isn’t entirely clearcut, see recent articles on this topic up on http://www.humanrights.ie/ ).

    • @Finbar,

      I see these direct democracy provisions primarily as a safeguard or deterrent to prevent governments abusing the majorities they usually enjoy in their national parliaments. A well-functioning system of parliamentary democracy would rarely if ever require their use.

      And as for this “very recent sudden heavy emphasis by some of our politicians on the “representative” aspect of our democracy” I believe we should take every opportunity to highlight that they are self-servingly and mendaciously misleading the public. Ireland does not have a properly functioning system of parliamentary democracy.

      • @Paul
        Exactly! If these provisions were constantly being used and abused, then the underlying intent behind them would have failed. The implicit threat hopefully makes the opposition less easy to ignore. The Danish example where their provision was only used once in the 1960’s for a related series of bills would seem to bear this out. One would expect an opposition to use such a provision only judiciously in case the mechanism itself fell into disrepute and a government succeeded in abolishing it.

        A similar effect seems to hold for Swiss citizens’ initiatives. As Donal’s stats show, most citizen initiated petitions ultimately fail. But, then again, a government has to bear in mind when passing legislation that a citizens’ initiative might later strike it down (so it has an incentive to pay some heed to citizen concerns). And quite radical measures are occasionally passed via petition. But, paradoxically, it’s amazing just how consensual Swiss politics is, in spite of (or perhaps because of) the rather radical direct democracy provisions; the unusual seven-person collective collegial executive they’ve evolved is a case in point.

        Still think giving positive rights to a qualified minority even in a single legislature could lead to a much better dynamic. A carbon copy of the Danish mechanism (1/3 of TDs able to trigger a referendum on any non-money bill) in our own constitution would majorly alter Dáil dynamics (I suspect for the better). But even the continued presence of the weaker article 27 (minus the Seanad requirement or alternatively with a reformed Seanad) might make some difference. I wait with real interest to see what the government’s Seanad abolition proposals will do with article 27.

  12. Have decided to go full gun with recent thoughts about giving parliamentary minorities positive rights and powers, and put them down here for what they’re worth. Excessive post length warning! 😉

    One interesting feature of such mechanisms is that they have the effect of replicating certain aspects of a bicameral system within a single chamber. The two approaches are not all that dissimilar. A proper second chamber would have some advantages in its own right. It could allow a different electoral system and/or different term lengths, e.g. the traditional idea of a smaller more collegial body with longer terms. A pretty strong case can be made for one in a federal state.

    Other than this, a usual major justification for such a second chamber is to curb some of the downsides of a possibly unhealthy single chamber, where a government gets its way by simple majority (and abuses this). It could also be a place, if not government controlled (as ours almost inevitably is), where opposition members cannot be easily ignored by the government. One of its advantages is that it can draw up its own rules of procedure. It also gives a possible avenue to the opposition to seriously harass, delay, or perhaps even completely block government measures (if their concerns are not adequately listened to). Strong powers to hold public inquiries would be another requisite feature. Or it might be given special powers or competences in particular areas: public appointments, impeachment, the EU, treaties etc..

    There are probably certain categories of legislation in a bicameral (or even unicameral) setup where something more than a simple majority should really be required. Legislation on powers of inquiry would be an obvious example; otherwise a main chamber might try to hobble such powers in a second chamber (or for a qualified minority). Perhaps such legislation should require a majority in both houses. Maybe each individual house should also be given a separate independent power to directly appeal to the people and pass such legislation by putting it to a public vote (as a way of bypassing logjams and vetoes from the other house; but perhaps an upper limit should be put on the number of such votes in a given time period).

    The same type of regime should probably hold for legislation in some other categories: that governing politicians pay and expenses, party/electoral funding, public appointments, any legislative or operational changes to regulatory agencies (cf. the new draft Icelandic constitution), and perhaps even legislation concerning the media, its funding, and its regulation.

    But it occurs to me that a supermajority/qualified minority combination would achieve much the same thing in a single chamber. The draft Icelandic constitution proposes that changes to regulatory agencies only be allowed with a 2/3 parliamentary supermajority. Supermajorities make things hard to change, which can often be a good thing, but sometimes can also make a bad law very hard to alter. Additionally giving a 1/3 qualified minority the right to appeal directly to the people to pass such legislation would counteract that possibility.

    In a single chamber setup, additional attention would have to be paid to parliamentary procedures. I admire recent procedural reforms in the UK House of Commons. But perhaps standing orders fair to minorities should be incentivized. A 3/4:1/4 supermajority/qualified minority combination for standing order change would IMO be a very interesting experiment in this regard.

    Sometimes a simple supermajority on its own could be a good thing. The draft Icelandic constitution proposes electing its speaker by a 2/3 supermajority. That seems like a good idea to me (though a secret ballot process also would have its advantages). Likewise, other constitutional officeholders (the C&AG or ombudsman if that’s made constitutional) in a single chamber should also be elected in such a less partisan manner.

    Plus, at least in theory if not in practice, the Seanad is supposed to act as a safeguard against certain Dáil actions: e.g. judicial and presidential impeachment, removal of the C&AG and altering the voting mechanism from unanimity to QMV in Europe for a particular competence. In a Seanad abolition scenario, I guess the expectation would be that these would be replaced with 2/3 supermajority requirements (or an even higher 3/4 supermajority in the case of president impeachment given this already has 2/3 requirements in both houses).

    And sometimes a simple qualified minority right on its own would be a good thing, e.g. German-style rights of public inquiry for a quarter of MPs. I suspect a strengthened article 27 procedure or a carbon copy of the Danish mechanism in our constitution would also be a big improvement. Even the weaker traditional delaying powers of a second chamber could easily be replicated, i.e. allow a petition of 2/5 of TDs to suspend a non-money bill for year, with the suspension only being lifted in the intervening period if more than 3/5 of TDs subsequently voted in favour. That would be a bit less radical than allowing a minority trigger a referendum, and wouldn’t present a big long-term obstacle to a government’s legislative programme over an entire parliamentary term. It would still give the opposition some leverage though.

    And, to finish up, it has to be said that there are some obvious limitations to supermajority and qualified minority mechanisms. For example, while they do indeed give more power to opposition party groupings they don’t do away with party whips; leaders of opposition parties will still try to whip their own TDs into line. But that’s also the case for second chambers (even in opposition controlled ones). A judicious use of parliamentary secret ballots might be a more appropriate approach for bypassing the whip, e.g. elections to committees and committee chairs and the speaker by secret ballot in the UK House of Commons. Or a government might have a large enough majority anyway to render most of these protections meaningless, e.g. the current coalition has an unprecedented 2/3 majority or thereabouts. But, on the other hand, second chambers may sometimes be government controlled also.

    • @Finbar,

      Many thanks for this. I’m sure all here feel indebted to you for the effort you are putting in. I certainly do.

      The quality of democracy may be assesed by the manner in which those who either always or from time to time find themselves in a minority are treated.

      From time to time I have given some thought to how An Seanad might be reformed to make it of some use. I have long been taken with the anecdote of Jefferson taking tea with Washington while discussing the need for and justificiation of two houses of Congress. Jefferson envisaged serious conflict between the two houses each enjoying its own popular mandate. He took a sip of his tea and, finding it was too hot, tipped some in to his saucer. Washington immediately saw a perfect illustration of his argument and pointed out that the Senate would be the saucer in which the heat and passion in the cup of the House of Representatives would be cooled.

      But I have come to the conclusion that a second house serves no real purpose in Ireland, but only if a single chamber Dail were to function along the lines you have set out.

      But we may be moving too far and too fast. I remain convinced that we should focus on restoring the principles of parliamentary democracy and then, step by step, adapting them to meet the demands of this age.

      • Thanks Paul. Like the Jefferson anecdote! I find the term “Dáil reform” frustratingly vague. There’s a real risk it’ll come to represent close to nothing in the end. Am keen on trying to pin down what “Dáil reform” might possibly mean. Found the supermajority/qualified minority ideas to be quite an interesting approach/angle of attack to the whole question. I suspect it’s far from being the full picture however.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s