Is the Seanad Bill 2013 what we want?

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Posted by Eoin O’Malley (15 May)

A new Seanad reform bill was introduced in the Seanad today by Senators Katherine Zappone and Fergal Quinn. It is available here. The main point of the bill are that it should move to a reformed house with new powers, but without requiring constitutional change. It proposed elections by universal suffrage, to close the democratic deficit, with non-geographic constituencies (on these see an interesting post by Michael Gallagher here). The other reforms are to allow the Seanad conduct public inquiries, to monitor secondary legislation (Statutory Instruments), especially that which results from EU directives, to approve government appointment’s to state boards and the judiciary. These are reasonable reforms that parliaments should engage in, but one wonders why give them to the Seanad, and not the Dáil? An argument might be that the Dáil should spend its time on primary legislation. But if it doesn’t, and it doesn’t really, this should probably be the first port-of-call for reformers. But we might see here is a real separation of powers, where the Seanad has powers over certain areas, and the Dáil over others. This differs from the current, unequal, division of power between the two chambers. This would mean Ireland would not face the sort of gridlock that we see in countries with symmetrical bicameralism, such as Italy.

This aside, what about the Bill on offer? There are a number of problems with it that one might object to. None of these are fatal, and could be fixed with amendments, although the solutions could be administratively messy.

First, and most crucially, is the unequal weighting of votes across constituencies. It suggests that voters should assign themselves to the constituencies (either university seats or the panels, Agriculture, Labour, Culture, Industry and Administration). The universities have six seats in the Bill and the other panels between 8 and 10 seats each. What happens if 1m people assign themselves to the labour panel, and just 50,000 to the arts? The voters in the arts panel would be over represented compared to the others. This would contravene a principle in the constitution that there should be broadly equal representation. The solution would be to allocate seats on the basis of the number of people who register to vote in a certain constituency. It’s possible, but it would be administratively expensive.

Second, there is a very strict gender requirement that half of the Seanad should be of either sex. This is to be achieved by sub-panels made up of men and women (it’s not clear if people then have two votes, or if women must vote for women and men for men). It is proposed that there would be complete gender equality in each constituency (panel). This is rather rigid, and would be impossible to satisfy in the 9 seat constituencies they also propose.

Third, casual vacancies are to be filled by going to the next placed loser (of the right gender). This might seem odd to reward a person who failed to get elected because of the death or resignation of a person who beat them. This could disrupt the balance of the majority (although this is unlikely as the Taoiseach still retains 11 nominees – who are much more likely to be party hacks because s/he’ll have less control of the Seanad). It would be easier to allow substitutes as the European Parliament has.

Fourth, and rather radically, it suggests all passport holders should have a vote. Though we go on a bit about the diaspora we don’t tend to let them have any real say. But do we want to? Emigrants will have very different interests in the country than those who live here and pay tax and/ or use the state’s services. Might a constituency for the diaspora make more sense? But this would require constitutional change.

Fifth, There is a provision that every candidate should be approved by a ‘Judicial assessor’ – a former High Court judge (why do we think that these people are best placed to perform virtually every task that requires a measure of independence?) who will decide whether the candidate truly is an expert or has a genuine interest in the subject of the panel the candidate wishes to stand for. While I’m sure in reality this would not be problematic, it seems oddly anti-democratic and elitist to allow someone ‘approve’ who is eligible to stand as a candidate.

While there are good practical arguments for a bill that requires no constitutional change, it limits any real bicameral reform. So if we want a properly reformed second chamber why act within these limits. It will just give an imperfect outcome. Some of the problems are also as a result of it being based on the existing legislation. This may have made it easier to draft, but keeps imperfections that could easily be removed.

The arguments the anti-abolitionists are using about abolition are also flawed. Ireland will not descend into some Zimbabwe-like state with the absence of Seanad ‘checks’. Nordic countries manage with a single chamber, without this issue. The key is that in those countries the parliament is more independent of government than here.

I still find it hard to see why we should spend much time and effort on Seanad abolition or reform. There is an assumption by directly electing senators we’ll get a better calibre of senator. Oddly though, it is the appointed and university senators who have made most contribution to the Seanad, not the professional politicians. I suspect a cut in the salary of Senators to where we cover their basic expenses would lead to a more radical change in the composition of the Seanad than direct election, which could lead to making it more likely to be a mirror of the Dáil.

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15 thoughts on “Is the Seanad Bill 2013 what we want?

  1. There’s a limit to how far one could vary the number elected from each panel, to reflect the number of voters who voluntarily enrolled in each:

    Art 18.7.2° Not more than eleven and, subject to the provisions of Article 19 hereof, not less than five members of Seanad Éireann shall be elected from any one panel.

  2. Because the Seanad cannot overrule the Dail, it is the right place for nonresident citizens to have representation. That way our views can be expressed through the democratic political system without taking away the absolute right of citizens in the State to determine legislation.

    The idea that only citizens who are resident in a state should have a voice in the national parliament is outdated. Many Irish citizens will spend time living and working in the EU or elsewhere without severing ties with Ireland. Representation in the Seanad would enable us to raise issues that affect our lives abroad which merit action by the Irish government. It would also enable us to make our voices heard by our government on issues that affect all Irish people, such as the peace process, the environment and world poverty.

    Representation in the Seanad would not give nonresident Irish citizens rights to services provided to residents who live in the State. People rightly pay taxes in the jurisdiction where they reside and use public services.

    Furthermore, the right to vote in modern democracies are not based on paying taxes. Low income citizens are not denied the right to vote. However, it would certainly be possible for a line on the passport application form to provide the opportunity for nonresident citizens to make a voluntary contribution towards the cost of participatiing in the electoral system. We are not freeloaders. We would not want others to assume the costs associated with giving us the vote.

    • Two things
      1) Why should non-resident citizens have the right to vote in any jurisdiction when they will not have to live with the consequences of the outcomes of that?
      2) Why should non-citizen residents not have the right to vote in any jurisdiction when they do have to live with the consequences?

      • Hey Donal, both are fair questions. I think that Martin explains the reasoning behind giving non-resident citizens a vote well in his comment above, I can only add that there might be considerable benefit in having the input of a group of people who tend to care enormously about Ireland. His point about the Seanad being an appropriate venue for that voice to be heard is also well-made.

        I can’t think of any reason for denying non-citizen residents the vote.

  3. The weaknesses in this post arise from a surprising lack of understanding of the current constitutional and legislative provisions relating to the Seanad. The judicial assessor on whether a candidate meets constitutional requirement for ‘knowledge and experience” currently exists for Seanad election ( the qualification test is set very low so suggestion that this test is elitist is nonsense)

    The inside and outside panel system alreadd exists, this bill changes the destinction between these panels to gender, and allows for half male and half female that way but the act also allows for the fact that one panel has odd number of members. Reading the bill makes clear anyone registered on the panel male or female can vote for any candidate male or female.

    Many many countries allow for emigrant votes (in their single or lower house) so why shouldn’t we in our Senate.

    ‘Next place loser.’ filling of vacancies also operates in many countries, is much more democratic than current system where sitting TDs and Senators only vote in Seanad by elections, and I would argue more democratic than the sub system for MEPS ( who recalls voting for Emer Malone, Phil Predergast or Paul Murphy as subs?

    I have heard nobody suggest Ireland would be Zimbabwe like without a Second house ( that hyperbole is your own) but we do argue that our democracy is better with a second opinion in the legislative process.

    Of course many systems have operated with one house but few have as much executive dominance of the legislature as we do, which (as you acknowledge) is the key problem, the executive would be even more dominant with just one house.

    it is (again) naive of those political scientists who rated the current government parties so well for their Dail reform proposals at the last election to think that although they have not done so since 2011 the government will reform Dail with or after Seanad abolition.

    I also find it hard to see why we are spending so much time and effort on Seanad abolition (I suspect government thought it would be a useful distraction) we all would much prefer to see government spend time real reform of both houses.

    • Noel, It’s not based on a lack of knowledge. I know the ‘judicial assessor’ currently exists. But it exists in an already undemocratic election. As I say in the post it is unlikely to have any real effect (I am not trying to scare-monger), but it appears elitist and it is surprising that you would keep this aspect in the new bill where you are striving to introduce a measure of democracy.

      Thanks for the clarification on the gender sub-panels. Legislation is rarely clear, and neither is this (but for some reason).

      The ‘next placed loser’ is used elsewhere but this doesn’t make it a model to emulate. It it is inferior.

      I have heard Seanad reformers make reference to African democracies – just can’t remember who I’m afraid. But the hyperbole is not mine. In most opinion pieces by reformers there’s a plaintive plea to protect our democracy as if unicameral systems are not democratic (see http://www.independent.ie/opinion/analysis/michael-mcdowell-abolition-of-seanad-is-really-a-power-play-dressed-up-as-reform-by-the-dail-29165177.html or http://www.irishexaminer.com/opinion/editorial/seanad-referendum–reform-to-protect-our-democracy-224475.html or http://www.thejournal.ie/readme/seanad-reform-katherine-zappone-767791-Jan2013/).

      I have no naive expectation that the government will be converted to political reform, but the government will have to have a substantial bill in place to redesign executive -legislative relations. This is as good an opportunity to get empower the Dáil and more importantly give it some degree of independence from Government as we have seen.

      I assume by your silence on my point that votes will be unequally weighted that you are conceding this is a problem with the bill.

      • Eoin

        Sorry should have replied on the point about ‘unequally weighted votes’ before it was repeated in the Journal.

        This, you main point, is built on a presumption that there is a constitutional requirement for equal weighting of votes. There is not. The suggestion that “This would contravene a principle in the constitution that there should be broadly equal representation” is not consistent with the constitutional text as it relates to the Seanad.

        There is no such requirement in the constitution for broadly equal representation in Seanad Elections. One could argue there should be such a requirement and of course there is for Dáil elections ( Article 16.2) but its not there.

        Of course many (most?) countries with second houses specifically provide for an unequal representation in their upper houses, often for good reasons such as enabling regional representation etc. The US Senate is the most obvious example where Wyoming and California each have two seats despite the massive difference in the size of their respective electorates.

        Operating as it does within the current constitutional constraints the Seanad Bill 2013 provides for a system which as well as universal suffrage at least has the merit that the weight of each vote in the constituencies and the number of electors is determined by the choice voters make about which constituency to be registered in. While there are likely to be some imbalances these will flow from the decision voters make when registering.

        The leeway as to the number of seats to be assigned to each panel is, as John O’Dowd points out above, limited by the constitution itself. There could be much argument about how many seats to give to Agriculture or Education etc. Indeed one idea might be to adjust the number of seats assigned to each panel ( probably by later legislation) to have regard to the number of voters who opt to register on each panel, thereby alleviating some (although not all) of the imbalance in representation you are concerned with.

        My main point though is that the act does not ‘contravene a principle of the constitution ” as you suggest since ( rightly or wrongly) that principle does not currently extend to those provisions relating to Seanad elections.

        We will have to agree to disagree on the judicial assessor question, it is a relatively minor aspect of the provisions in any case. It could simply be left to the Returning Officer to determine that the candidate has proven that he or she has the required ” knowledge and experience’ for the panel, but the view has been and is in this bill that it is better to have a separate person or panel of persons make this determination. The choice of a judge or retired judge to make this determination is probably because a refusal to accept a nomination for a panel on grounds of lacking qualifications is likely to be ( and has been) the subject of (inevitably urgent) injunction applications to the High Court. Having a judge involved in the decision at the outset aims to reduce the risk of an initial decision which is wrong in law ( although of course no gurantee)

        Thanks for this useful engagement, it all serves to tease out the complexities involved in reforming or abolishing Seanad Eireann.

    • I think the idea of giving non-resident passport holders a vote is a wonderful one – currently there is a whole generation of Irish people who have had to leave the country for work, who have no political voice at all, so kudos on that element – this is something that is far too often ignored in Irish political discourse!

      • Two things
        1) Why should non-resident citizens have the right to vote in any jurisdiction when they will not have to live with the consequences of the outcomes of that?
        2) Why should non-citizen residents not have the right to vote in any jurisdiction when they do have to live with the consequences?

  4. Noel,
    Yes, many second chambers have unequally weight votes for second chambers. But this is in the context of federal or quasi-federal systems where the constituencies are geographic. The purpose is to ensure that legislation must receive broad support even from minorities. So the Gallicians in north-west Spain are over-represented compared to Madrilenos. It is (or was often designed as) a way of maintaining unity in the context of federalism. The same was allowed in the House of Commons for Scotland and Northern Ireland.

    Now you might argue that the different communities representing arts or labour or commerce are in some way fixed groups within Irish society with different interests, but it would be stretching reality somewhat. What in fact would happen is that some people would guess where their vote would be worth most and choose a constituency accordingly. If I were you I’d solve this by randomly assigning people to these non-geographic constituencies (which I think is the only interesting part of the reform) and essentially ignore the constitutionally impose titles that are given.

    The principle of equal representation is specifically referred to in the articles on the Dáil, but the constitution was written in the context of an indirectly elected Seanad. In the context of a directly elected Seanad, one could make the argument that that principle should be extended to the reformed Seanad. You know, better than most, that judges can invoke and extend principles if they see fit. One might use Art. 18.5 that specifies that proportional representation (by STV) must be the electoral system to argue that the election is not proportional if some voters have more voting power.

  5. “Third, casual vacancies are to be filled by going to the next placed loser (of the right gender). This might seem odd to reward a person who failed to get elected because of the death or resignation of a person who beat them. This could disrupt the balance of the majority (although this is unlikely as the Taoiseach still retains 11 nominees – who are much more likely to be party hacks because s/he’ll have less control of the Seanad). It would be easier to allow substitutes as the European Parliament has.”

    I agree with Noel Whelan’s comment on this point.
    1) By-elections can also disrupt the balance of the majority – either in the Dáil or within the parties which support the Government in the Dáil. When FF lost two-by-elections in Cork, Jack Lynch resigned as Taoiseach to be replaced by Charles Haughey.;

    2) Note that over one-third of the TDs (57, inlcuding two Ministers) elected in the February 2011 General Election were elected without reaching the quota. To my knowledge, nobody questions their right to be TDs. I think it important to keep the link with the electorate even if some more TDs would join the Dáil having stood for election but did not reach the quota

    3) By-elections distract Government and the Dáil from proper governance. There are too many examples of policies and measures being adopted on whimsical grounds during by-elections. As an example, in what other country would a government build two new non-interconnected rail-based urban transport systems in the first years of this century? The strange Government decision (ie. not to link the two LUAS lines in the centre of our capital city from the beginning as proposed) is the direct result of a PD transport policy adopted for the 1998 North Dublin by-election arising from the resignation of Ray Burke from the Dáil. The PDs did not have any transport or environmental policies in their manifesto during the 1997 General Election

  6. “I still find it hard to see why we should spend much time and effort on Seanad abolition or reform. ”
    Yes – indeed.
    The real issue in our governance is the effective lack of checks and balances to limit the scope for excess by the powerful – be they elected or appointed, public or private, local/national/transnational.

    Attempts to enhance our governance must face the fact that our present constitution means that the Government must be in and or the Dáil. The Government seems to be sub-committee of the Dáil. However it ceases to be the Government unless the Taoiseach retains the support of the Dáil. Hence the need for Government to control the Dáil.

    No amount of non-constitutional measure will change (to the Senate or even the Dáil) will alter that basic reality of the current Constitution.

    At present, we are living with the results of bad governance eg.
    1) Staggering unemployment, as the IMF stated recently;
    2) Lack of trust – over years. The Edelman market research company publishes an annual Trust Barometer for various countries.
    The 2013 report on Ireland found “Levels of Trust in Ethics and Morality in Ireland are very low – people do not trust government or business leaders to tell the truth, make ethical decisions, solve social issues or regulate problem sectors;
    The primary reasons for people’s lack of trust in government were found to be poor performance and incompetence;
    The primary reasons for the general population’s lack of trust in business were found to be a combination of perceptions of corruption or fraud and the wrong incentives driving business decisions;
    More Irish people (59%) trust the European Union than their own national government (18%) to manage the Eurozone Debt Crisis. This contrasts with UK and Germany where more people (almost half) trust their national Government. ”

    This 2013 finding follows what Eurobarometer polls have found over the past 10 years ie. that most Irish people tend not to trust
    • The Dáil – varying from 55% in 2003 (when things seemed good here) to 69% 2012;
    • The Government – varying from 59% in 2003 to 70% in 2012″

    3) Our banking crisis is “…. the costliest since the Great Depression in terms of the economic havoc it wreaked on the country,” according to the paper by International Monetary Fund researchers … Ireland is also the only country in the world currently suffering from a banking crisis that features among the world’s top 10 worst banking crises, the authors conclude, lending weight to the idea that our banking crisis is much worse than the problems in other countries…. The researchers study banking problems under three headings — fiscal cost, increased debt and loss of economic output. Ireland was in the top 10 in all three categories.”
    lrish meltdown was world’s worst since 1930s — IMF report Irish Independent 28 June 2012 http://www.independent.ie/business/irish/irish-meltdown-was-worlds-worst-since-1930s-imf-report-26869930.html report on IMF Research Department Working Paper WP/12/163 Systemic Banking Crises Database: An Update Luc Laeven and Fabián Valencia.
    http://www.imf.org/external/pubs/ft/wp/2012/wp12163.pdf

  7. @Matt (and Martin)
    It is not at all clear to me that giving the right to vote to non-resident citizens will in any way enhance the checks and balances that we need in this Republic.
    Ditto for dealing with the major socio-economic issues we have eg. lack of trust, unemployment, the banking crash. (see my posting above)

    I remain to be convinced that giving Irish citizens who have emigrated or those with citizenship who have not emigrated (ie. Northern Ireland residents with citizenship) the right to vote for the Senate will significantly contribute to ensuring that our power is used for the common good, legitimately.

    As an aside, Martin has suggested contributing towards the costs of elections. Why not go one further and suggest “no representation without taxation”? Note that people with low incomes here pay VAT, excise duties etc – just as visitors do and we do when we go abroad.

    Martin assumes the continued existence of the Senate.
    As you well know, many small states (eg. Denmark, Finland, Sweden, Norway, New Zealand) have only one national house of parliament.

    At present more than half (14 of the 27) the EU member states have unicameral parliaments.

    For the record, the parliamentary status of EU Member states is as follows
    Bicameral: Austria, Belgium, Czech Republic, France, Germany, Ireland, Italy, Nederlands, Poland, Romania, Slovenia, Spain, UK

    Unicameral: Bulgaria, Cyprus, Denmark, Estonia, Finland, Greece, Hungary, Latvia, Lithuania, Luxembourg, Malta, Portugal, Slovakia, Sweden.

    Croatia, which will join the EU in July 2013, has a unicameral parliament.

    • Although properly constituted a second chamber can provide useful oversight which can strenghten the democratic process, this has never been the basis of my arguement in favour of extending voting rights to nonresident citizens. Rather, my argument is that such action is necessary to correct Ireland’s biggest democratic deficit, namely the disenfranchisement of perhaps a quarter of our citizens of voiting age. None of the countries with unicameral parliaments listed above have anywhere near the same proportion of their citizens disenfanchised because of residency restrictions as Ireland. This has to do with our unique history.

      However, global economics and the mobility rights afforded to European Union passport holders will inevitably mean that all western democracies will have to face the issue of extending meaningful democratic representation to their nonresident citizens.

      The 1937 Constitution understood that the Irish nation embraced more than those who lived in the State. Yet, we acted as if the only way to make all the pieces fit was to link the democratic rights of citizens with a territorially based legislature. Now we understand that it may be a good thing for people to have multiple affiinities. For example, the younger generation see themselves as being both citizens of Ireland and of Europe. Most of us also understand that we have responsibilities as citizens of the world. People living in the North are able to be Irish or British or both. Enabling citizens in the North democratic representation in the Seanad would be a clear demonstration that democracy can be freed of the shackles of the antiquated nation-state conceptual model.

      I should make clear that there are very concrete reasons why nonresident citizens need the vote. Often legislation in Ireland on important matters such as family law and taxation affect nonresident citizens. Governemnt departmental officials often make a real effort to facilitiate our input, but that is not the same as having an elected parliamentary representative as an advocate.

      Finally, the American cry of “No taxation without representation” is a red herring. As I pointed out, many people of voting age in Ireland who pay no taxes are not deprived of their right to vote. Nor should they be. In most jurisdictions, taxes are collected from those who can afford to pay them for public services to which they are entitled. Nonresident Irish citizens are not entitled to most of the services available to citizens resident in the State.

      Some countries, such as the United States, do tax on world income. Whether such a model would have a net benefit for the Irish economy is something the Government could examine. However, I would urge everyone to appreciate that there are real benefits as well as costs to extending the vote to nonresident Irish citizens. By extending the vote to all Irish citizens, our parliament will not just represent citizens of a relatively small country, it will be harness the power and influence of the entire Irish nation which has a global reach.

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