Post by Richard Humphreys SC
In order to offer a ‘workable’ reform that they claim could be on the statute books by Christmas the Quinn/ Zapponne Seanad Reform Bill makes a lot of compromises. Due to the constitutional limitations on what can and cannot be changed by an ordinary bill, the Zappone/Quinn Bill leaves in place a number of key features of the current system that are elitist or irrelevant.
What the Bill does not change
- The Bill does nothing to change the impotence and almost complete lack of power enjoyed by the Seanad.
- The Bill cannot fundamentally change the makeup of the Seanad, because the elitist constituency for university graduates is required by the Constitution.
- The Bill also keeps the nonsense of vocational panels which is required by the Constitution even though it is straight out of a 1931 Papal encyclical.
- Indeed it retains the vocational nominating bodies, albeit supplemented by an alternative nomination procedure through nominations by local authorities and by 500 voters
- The Bill retains the appointment, rather than election, of 11 legislators.
The Seanad is a very peripheral part of the process. To take the Seanad’s last full sitting month, July 2013, 100% of Senators’ amendments that were put to a vote were defeated (only 7 amendments were put to a vote, apart from the abortion bill). The vast majority of Senators’ amendments are out of order, not moved, or withdrawn. 100% of the (86) Government amendments were put and passed. So the Government put 12 times the number of amendments than all Senators combined. The Seanad is by and large just another forum for the Government to amend legislation, and if it did not do so in the Seanad it would do so in the Dáil.
No Senators from any grouping including independents submitted any amendments whatever on 45% of the committee or report stages of bills during July 2013. According to Senator Zapponne’s own figures, the Seanad had no impact on 85% of Acts passed in the current Oireachtas.
Its only real power is to delay bills by very short periods, 3 weeks for money bills, 3 months for other bills. This is fixed in the Constitution and can’t be changed by a reform bill. Under the Constitution the Government is specifically answerable to the Dáil, not the Seanad.
The “reforms” are irrelevant, dangerous or unworkable
The Zappone/Quinn proposals endeavour to “reform” two main aspects of the working of the Seanad
- the list of jobs or roles that the Seanad can perform (such as scrutinising regulations) and
- the electorate that would select the 49 elected members.
The first of these is irrelevant to legislation. It could have been introduced, without legislation, by the Seanad itself at any time over recent decades.
The second sounds on the face of it more democratic but is unworkable and potentially dangerous.
Expanded Seanad roles never needed legislation
On the issue of “roles” for the Seanad, the Bill is padded out with new jobs for Senators to do – they are now to be tasked with scrutinising EU directives, Government regulations, and the like.
Unfortunately from the point of view of Senators Zappone and Quinn, a bill is not required nor is it appropriate for this. All it would have taken is for the Seanad to act to pass the appropriate motions/standing orders and/or set up committees to do this job, if they had got around to it.
Indeed in the 1950s and 1960s the Seanad did indeed have a scrutiny role in relation to Government regulations, the Seanad select committee on statutory instruments. This simply lapsed and has never been put back in place for many decades. No legislation was required to set it up the first time round and no legislation would have been necessary in the decades since.
The failed experiment of examining regulations is just one more chapter in a long history of inactivity and disappointment on the part of this failed institution. The idea of blaming the Government or the lack of a Bill for the lack of a role for the Seanad is a smokescreen and is fundamentally incorrect.
New worldwide election for the Seanad is unworkable
On the issue of who votes to elect the Seanad, the Bill promises “reform” of a remarkable kind – a new, vast electorate consisting of –
-The whole adult population of the State. Over 3.1 million people.
-Anyone entitled to Irish citizenship in Northern Ireland– in fact this covers virtually all adults in NI because under the Good Friday Agreement, virtually everyone in Northern Ireland is entitled to Irish citizenship, whether they take it up or not. Another 1.3 million or so.
-All Irish passport holders world-wide are also to be given a vote. While there is no official figure for this, it appears that last year the London Embassy issued about 50,000 passports – therefore about half a million passports may have been issued in London alone over the past 10 years (the average duration of a passport) so the true total worldwide is probably at least a million if not more. Potentially it could be much wider as there are about 80M people of Irish descent abroad. Perhaps a total of 5.4M people all told.
The explanatory memorandum signed by Senators Quinn and Zappone implies that only Irish and British citizens in the State will be able to vote, but this is contradicted by the Bill itself which would allow even non-EU citizens in the State, whether legal or illegal, to take part in the action if they are local electors (section 34(2) and (3) applies to what are called “other specified elections” which includes local elections).
It can be noted that the voters outside the State total over two thirds of the voters within the State. The “reform” Bill is pure representation without taxation – a vast constituency who have no responsibility whatever for any decisions that may flow from a Seanad elected in this manner.
The Bill also allows any 500 electors to nominate a candidate. With a potential electorate of over 5 million, this would allow in extremis 10,000 candidates.
It is simply not possible to run a PR-STV election with even 100 candidates without using the ‘above the line’ option used in Australia. This allows people to vote on the basis of party lists. But the proponents of the Bill claim that they want to increase the number of independent voices. (This in itself is an odd goal given that Ireland has more independents than any other established democracy). To make such an election meaningful for voters party labels would be essential.
The sheer complexity of a world-wide vote has not been thought out. Section 59(2) of the bill provides that votes outside the state are counted by the local embassy or consulate. Yet this would make it completely impossible to operate the rules on transfer of surpluses that are required for a PR election and are stated on the face of the Bill. The drafters seem to know little about how PR actually works in practice. Certainly their version of an election as set out in the Bill cannot be put into operation.
A key requirement of transfer of surplus is that the actual ballot papers to be transferred are, in certain circumstances, the ones on the top of the parcel. This key rule is reflected in rule 9(4)(d) of schedule 7 of the Zappone/Quinn Bill. Yet the Senators do not seem to have appreciated that this rule can only work if all ballot papers are brought together into one parcel. Far from providing this, the Bill states that any ballots completed outside the State are sent to the local embassy or consulate. Ireland has 74 diplomatic missions around the world, so if each has its own mini-count there will be up to 75 parcels of any particular votes including the central count in Dublin. A complex PR election as specified in the Bill is simply utterly unworkable in this manner.
The failure to understand how PR works also renders it impossible to mix the ballot papers as required by rule 22 of schedule 6 or for the Seanad returning officer to receive them as required by rule 8 of that Schedule (which contradicts section 59).
The unworkability of vast panels with millions of electors also extends even to the “reformed” university panel proposed in the Bill. The Bill amalgamates the Trinity and NUI constituencies and adds in all other third level institutions in the State (but not in Northern Ireland). All of these will now be covered by one single ballot paper.
In 2011, there were 27 candidates on the NUI ballot paper and 20 on the TCD ballot paper. Simply amalgamating the two would be to reach 47 candidates which is approaching the outer limits of workability from a voter point of view.
Section 39 adds in 5 additional third level bodies plus the 13 institutes of education, thus increasing from 2 to 20 the number of bodies covered in the one ballot paper. A corresponding 10 fold increase in candidates would result in 470 candidates on the university ballot paper under the Bill, which is simply an election that cannot meaningfully be conducted.
There is another fundamental difficulty with the Bill, potentially striking at its constitutionality. The Bill purports to enshrine the principle of one person, one vote (section 30). However the Supreme Court has repeatedly stressed that this principle is severely compromised if the votes are not of equal value.
But each citizen’s vote under this Bill will be of radically unequal value, because each panel will elect a different number of Senators and will have a radically different number of voters. The university graduates will almost certainly remain a privileged group as there will be fewer of them, and they elect 6 members. Their votes are therefore each worth more in terms of influence than those who have to pick one of the more populous vocational panels. The panels may range in size from 10,000s to millions of voters.
The Bill allows any voter to self-select as to which of any panels he or she will vote on. The only real restriction is that only graduates can vote on the university panel, but the other 5m voters will have to pick at will from the vocational panels. There will therefore be extraordinary opportunities to “game the system”, with more savvy voters opting to register for the panel which has the best ratio of voters to senators, in order to make their votes relatively speaking worth more. Either way, the relative value of different citizens’ votes will differ markedly from panel to panel.
Under our current system, this particular feature does not so much matter with the differently-sized vocational panels, as all councillors get votes on all such panels. But when citizens have to pick one and only one panel they will frequently find themselves severely short-changed.
The bill puts a bizarre form of inequality and anti-democracy at the heart of the Seanad system.
Other drafting defects
With all due respect to the Senators and their highly competent advisers, the Bill is poorly drafted and contains a number of quite extraordinary provisions from a drafting point of view.
Ten whole sections of the Bill simply repeat provisions that are set out at length in the Constitution. This unheard-of drafting style gives the impression of content without the reality, and is an extraordinary departure from the drafting standards used on the Irish statute book.
S 47(2) seeks to redefine the qualifications for the vocational panels, e.g. by including NGOs under public administration and social services. This, in my view, is unconstitutional as the meaning of the vocational panels is fully defined by Article 18.7 of the Constitution and cannot be extended by law to cover a wide and vague area such as “non-governmental organisations”.
The bill proposes to fill vacancies by means of going back to the highest loser (s 63(1)) – an acknowledgement of the extremely cumbersome system and the impossibility of bye elections under this bill. However the highest loser system is very anomalous and produces results that are quite a distortion of the will of the people, especially when combined with the gender quota provisions. For example, if 4 women contest for 3 female seats on a particular “subpanel”, and one later leaves office, the 4th gets the seat even if they got a handful of votes and regardless of affiliation.
The QZ Bill is severely flawed. And probably cannot be salvaged without looking to change the constitution (removing the whole point of the Bill). It is also just one of a number of recent reform proposals. The inconsistencies of the various reforms and the fact that the 2008-2010 All Party Group on Seanad Reform failed to agree on any reform shows that any ‘reform’ is highly unlikely and that we will be left with the current Seanad if the people choose to reject abolition.
Richard Humphreys is a Senior Counsel and a Labour councillor for Dún Laoighaire-Rathdown.