On the Future Matters blog, Rachel Mathews-McKay wrote in defence of the Seanad under the headline, ‘The Seanad has stood with our LGBT Community’. It is true that two of the most well known senators, Mary Robinson and David Norris, played crucial roles in advancing equality for gay people in Ireland. But should this lead us then to credit the institution of the Seanad for this progress and for it to be retained because of this legacy? Does my activism on gay rights conflict with my enthusiasm for abolition of the Seanad? Let’s examine the history in greater detail.
The Campaign for Homosexual Law Reform began in 1975 with David Norris, a member of the English Department at Trinity College Dublin, as it most prominent member. Its legal advisor was Mary McAleese, who was succeeded in that role by Mary Robinson in 1979. The 1885 law which had convicted Oscar Wilde, and which had been largely repealed in England and Wales in 1967, was still in effect in Ireland.
Mary Robinson had been elected as one of the three University of Dublin senators in 1969 (continuing there till 1989), but it was through her actions as a legal counsel that she was most successful in bringing about social change, whether on this question or on many others. When David Norris sued the state on the claim that criminalisation of homosexuality was unconstitutional, Robinson acted as his barrister. In Norris v. AG, the High Court ruled against him in 1980; on appeal to the Supreme Court, they too ruled against him in 1983.
They filed in the European Court of Human Rights in Strasbourg. Ireland was a signatory of the European Convention on Human Rights in 1947, and Northern Ireland resident Jeffrey Dudgeon had successfully sued there in 1981 in Dudgeon v. United Kingdom to secure the repeal of the law, which still then applied in Northern Ireland. The law was changed for Northern Ireland in 1982 (a separate law had been passed to apply to Scotland in 1980).
In 1987, David Norris was elected as one of the three University of Dublin senators, in large part in recognition of his work in this campaign.
On 20 November 1957, Independent TD Dr Noël Browne proposed a Private Members’ Motion, “That Dáil Éireann is of the opinion that Seanad Éireann as it is at present constituted should be abolished.” The motion was seconded by Independent TD Jack McQuillan (Browne and McQuillan were to found the National Progressive Democrats in 1958).
Browne continued on 27 November. On 4 December, Taoiseach Éamon de Valera instead proposed a commission to examine the method of election for senators, and Noël Browne reluctantly accepted this compromise, saying “we shall accept that position as making the best of a bad job and wish the committee to be established every success”. (Credit to John O’Dowd of UCD’s School of Law for initially pointing me towards de Valera’s response)
Browne did serve as a Senator for the University of Dublin from 1973 to 1977, as many do between time in the Dáil when they lose their seat, but bar taking account for inflation, much of his 1957 speech stands as true in today’s debate. I have reproduced this speech in full.
That Dáil Éireann is of the opinion that Seanad Éireann as it is at present constituted should be abolished.
In moving this motion it is necessary to go over some of the history associated with the formation of the Seanad and its subsequent career. This is the second time that a motion of this nature was moved in this House. On the previous occasion, however, the motion simply asked for the abolition of the Seanad as it stood. It was moved by the present Taoiseach, Deputy de Valera, and behind him he had the backing of an effective majority, with which, there was no doubt, he intended to implement his will.
I do not intend to go into the reasons why the then Taoiseach, Deputy de Valera, insisted on the removal or abolition of the Seanad but I shall draw to a very considerable extent on many of the very cogent, telling and compelling arguments which he used at that time in order to try to persuade the House to agree that a Seanad as such or, indeed, any Second Chamber at all was neither desirable nor necessary in a democratic society. As two Independents, it is quite clear that we cannot depend on the great overwhelming majority of a Party. Possibly because of that it should be possible to get a more reasoned argument from both sides of the House, to have the motion considered in a non-Party way, and, if possible, allow the Deputies to express their viewpoint independent of the Party Whip.
To those who feel that the Seanad is serving a useful purpose as it is and do not want to have it changed, I would very much like if they would put forward their arguments and try to justify their belief. I should not like to treat the House in the positively boisterous way in which the Taoiseach, Deputy de Valera, treated it away back in 1934, when he put the onus entirely upon the Opposition to prove that the Seanad was required. He said in Volume 52, column 1809, of the Dáil Debates:—
I am particularly motivated in the upcoming referendum on the abolition of the Seanad as I see it as a matter of democratic principles. It is something I have held for many years, and I was delighted when Enda Kenny announced his personal support for the reform.
The purpose of a legislature in a modern democracy is to elect representatives held accountable to make laws on behalf of the people. And in parliamentary democracies, as exist in most European countries, these elections are also when we vote on the makeup of the government. At each general election, the people decide collectively on where the balance of policy should be, whether a government deserves to be re-elected, or whether we should take the chance to kick the rascals out.
The direct involvement of the people in their governance through the electoral was a hard-fought struggle, and one which over time a growing number of people across the world have been able to enjoy.
All stages of this process, from parliamentary processes to the preferences of voters, should be subject to constant scrutiny and eternal vigilance. A recent book by Anthony O’Halloran, The Dáil in the 21st Century (2010) provides a good comparative analysis of this, drawing on international comparisons and developing theories of political science. Reading it with weeks before this poll, I couldn’t but notice the dog in the night-time, that he wrote such a thorough analysis of the democratic purpose, strengths, deficiencies and potential of the Dáil, and the importance of a vibrant, republican civil society, without any need to address a role for the Seanad.
Within the European Union, there is close to an even divide between unicameral and bicameral parliamentary systems, with a small bias of fifteen to thirteen in favour of a single house. But there is a clear population differences between these countries: the 15 with one house of parliament have an average population of 5 million, where the 13 with two houses of parliament have an average population of 33 million.
In some countries, the second house of parliament is a clear legacy of the role given to aristocratic influence, as we are familiar with from the House of Lords. In others, it is because of the importance given to federal structures, as in Austria, Germany or the United States.
Second houses do have a basis in countries with a divide that is too important to be left to a simple majority of representatives. This was a good reason for the Constitution of the Irish Free State to include a Seanad, where there had been an understanding that William T. Cosgrave would appoint a large number from outside the Roman Catholic population. Its first Cathaoirleach was Lord Glenavy, who had served as Lord Chancellor of Ireland from 1918 to 1921. There could be a good similar reasons to have a second chamber in the case of a united Ireland, but there would be other substantial constitutional amendment in such instance.
A second house, then, frustrates the primary house of representatives. It is all the worse in the case of the Seanad given how its members are chosen: 3 elected by scholars and graduates of Trinity College, Dublin; 3 elected by graduates of the four universities of the National University of Ireland; 43 elected across five panels, where councillors and TDs have a vote in each panel and invariably select fellow party members, and often those who recently failed to be elected in Dáil elections; and 11 nominated by An Taoiseach.
Not all of this is set in stone. Senators Katherine Zappone and Feargal Quinn proposed the Seanad Bill earlier this year, which would give a vote to all Irish citizens. On the face of it, it seems like a democratic improvement. But I think it could be worse than the status quo, as it retains the panels of Administration, Agriculture, Education, Labour and Industry, and the concept of distinct parliamentary representation for university graduates. While the current system entrenches the influence of political parties, a national election based on candidates from these panels would entrench the role of sectoral vested interests.
There is a great democratic potential in the Dáil. Most of those campaigning to retain the Seanad say we should vote No and reform the Seanad.
I say we should vote Yes: abolish the Seanad, and then focus all further desire for political reform in the Dáil, as the democratically elected house of the people.
Dublin Bus and its employees seem have to have come to a truce, if not a settlement, to their dispute. Others elsewhere have gone into detail on the current financial position of Dublin Buss on relative pay of its drivers and a Mazars Report on Ireland’s State-Owned Bus Companies of two years lead to believe that the Labour Court proposals which focused on allowances were reasonable in the context of both European comparisons and situations elsewhere in the public service.
But that is not what stood for me. While Leo Varadkar was criticized for not intervening, but on the News at One, he stayed firm that this was a matter between the Labour Court, the management of Dublin Bus, and the two unions, to return to discussions.
This is as is should be, and will hopefully set a precedent. The political process should, with rare exception, respect the role of institutions such as the Labour Court as an independent arbiter in such industrial disputes.
With US Supreme Court upholding two lower court rulings, Edie Windsor has been successful in her challenge to Section 2 of the Defense of Marriage Act, which defined marriage at a federal level as between a man and a woman.
This means that gay couples who marry in the states of Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington, and in the District of Columbia.
In the case to uphold Proposition 8, Hollingsworth v. Perry, which began as Perry v. Schwarzenegger, the Supreme Court ruled that Dennis Hollingsworth did not have legal standing to challenge the District Court ruling. He heads Protect Marriage, the group that pushed to get Proposition 8 on the ballot, but the Court ruled that this did not give him a right to challenge what was a state law, and therefore within the remit of the governor and attorney-general of California, Gerry Brown and Kamala Harris, to challenge the lower court rulings, and both of them support agree that Proposition 8 was unconstitutional.
This decision is legally sound, and has precedent in Arizonans for Official English v. Arizona. It is almost surprising then that Court granted cert to the case, and we’ll never know which of the four decided to do so.
So gay couples will soon be able to marry again in California, having been able to do so during a few months in 2008.
I was particularly pleased that Justice Anthony Kennedy wrote his opinion based on equal protection, rather than states’ rights. This is the third major gay rights ruling of his, afterRomer v. Evans in 1996, which overturned exemptions of gay people from discrimination laws, and Lawrence and Garner v. Texas ten years ago today in 2003, which overturned remaining anti-sodomy laws. All in all, a strong ally for gay people on the bench. Will he have a chance to go one further and extend marriage for gay and lesbian couples nationwide?
We will have to wait to get a challenge from a couple in a state whose governor and attorney-general will continue to defend such a prohibition all the way to the supreme court, and preferably in a state where there is a reasonable prospect of a district or circuit court ruling in favour of equal marriage.
Let’s be honest: The gay marriage debate is nearly over.
In the Los Angeles Times last week, David Blankenhorn, President of the Institute of American Values, opened with these words to write again about his personal journey. He was one of the witnesses who spoke in defence of Proposition 8 in its original court hearing in 2010, and a long-term leader of those who were against. Between his institute and where he places his emphasis in his arguments, such as on family stability and the effect of absent fathers, he brings his namesake to mind, David Quinn, Director of the Iona Institute.
Yet last year, David Blankenhorn wrote in the New York Times, ‘How My View on Gay Marriage Changed’. He did not depart from his core understanding of marriage as ‘the planet’s only institution whose core purpose is to unite the biological, social and legal components of parenthood into one lasting bond’. But the debate on gay marriage did not pan out as he initially expected, nor did it have the effect of strengthening an understanding of heterosexual marriage. In that context, comity matters, he said,
Sticking to one’s position no matter what can be a virtue. But bending the knee a bit, in the name of comity, is not always the same as weakness. As I look at what our society needs most today, I have no stomach for what we often too glibly call “culture wars.” Especially on this issue, I’m more interested in conciliation than in further fighting.
As he came to see it, maintaining his opposition did not help the conversation he believed was most important about marriage, and began to realise that these discussions can perhaps best take place while accepting that gay couples are living together and raising children,
It is unusual that a country of our population has two houses. The fifteen EU countries (including Croatia joining next month) with one chamber have an average population of 5 million; by contrast, the thirteen EU countries with two chambers have an average population of 33 million. I have not done a full statistical analysis, but population looks like one of the most likely predictors of whether a country’s parliament will have one or two chambers.
Of course, this is not reason enough in itself to support abolition of our Seanad, but it is a worthy reminder that the absence of a second chamber would not make Ireland unusual in comparative terms.
The next question is whether the current Seanad can be defended. A house of parliament, being a body that legislates on our behalf, should maintain democratic legitimacy and accountability; as far as is reasonable, it should be possible for voters to choose their representatives and then to remove them after a period of years. While this happens in the Dáil, as seen most clearly in the last general election, it is quite different in the Seanad. Forty-three are elected by elected politicians, six by a proportion of university graduates, and eleven appointed by An Taoiseach.
I believe this system in large entrenches governance by political insiders. Each new Seanad has had members who were defeated at the recent Dáil, whether among the 43 elected by Oireachtas member and councillors, or those appointed by An Taoiseach. Someone who was not successful in a general election should return to civil society, and perhaps try again at the next election, rather than receive a separate mandate to legislate from their party peers. And while I would commend Enda Kenny on the diversity of experience of his eleven nominees, this cannot be guaranteed on. These nominees are still among those who are politically connected, and broadly favourable to the government parties, even if most of them have genuinely Independent within the house.
Though a beneficiary of the graduate franchise, and was pleased to cast a vote for Jeffrey Dudgeon standing for the University of Dublin seats in 2011, I don’t see a defence of it. Nor would I consider extending it to graduates of other colleges and universities as an improvement, as it would only entrench an idea that someone is more qualified as a citizen with different levels of education.
Each of these aspects could be reformed. But I don’t realistically expect a government who has lost a referendum on the Seanad to spend much time afterwards drafting legislation to reform it; nor would I expect Fianna Fáil in government to expend any similar time on legislation, while they as much as any others have benefited politically from the current set up. Reform might sound nice, but it brings to mind the mice calling for a bell on the cat, for all that it is likely to happen.
So the vote will be whether or not to vote to abolish the Seanad as we know it, with a number of compensating measures. Reform is not in any real sense on the table.
Nor do I think I would much like to see the reforms proposed by Democracy Matters, which would give all citizens a vote in one of the vocational panels (Administrative; Agricultural; Cultural and Educational; Industrial and Commercial; Labour). I think our country has divisions enough between different sectors without these being formalised in our legislative structures.
We hear of the many admirable and outstanding current and previous Senators. But the abolition of the Seanad would not remove their voice from Irish society. I believe that is a role for the press, the universities and a vibrant civil society to play, to engage with the democratic process, while not having a direct part in it as of right.
I await to see the Amendment Bill this week, and the strength of the proposal will affect how actively I will campaign in the autumn, but as of now, I would need a very strong reason to support retention of our second house.