The conference from the Reform Alliance later this month should be interesting to watch. I might even call in to it. While Lucinda Creighton did insist on Prime Time yesterday that it isn’t a political party, it certainly seems to be heading that way, with a date of September mentioned. If Stephen Donnelly joins them, my Wicklow homeland would become a stronghold for them. I’ve been asked more than once by friends and family if I’d consider joining them. There’s really barely a hope of that.
It’s not just that I’m enjoying my current activity in Fine Gael. If a party emerged that was closer to my ideals, and had reasonable prospects of being viable, I’d give them a fair hearing. This new group doesn’t seem likely to be either. When I spoke in favour of dissolution at the last conference of the Progressive Democrats, among other things, I said that if we were to continue, we could inhibit the development of our ideas in another political force. The Reform Alliance is not what I had in mind.
Let’s jump back to the 1980s, to the events that led to the formation of the PDs. Des O’Malley first lost the Fianna Fáil whip in 1984 because he was willing to consider political solutions in the New Ireland Forum Report other than a united Ireland (all of which gave much more power to the Irish government than the later agreements). He was then expelled from Fianna Fáil in February 1985 after he stood by the republic in the debate on the Family Planning Bill, arguing against that party’s tactical opposition to modest liberalisation of contraception laws. While an Independent TD, O’Malley led the charge against Minister for Transport Jim Mitchell’s ridiculous notion that it should be illegal to sell a place ticket lower than Aer Lingus, paving the way for cheap flights and Ryanair. Mary Harney lost the Fianna Fáil whip in November 1985 after she voted in favour of the Anglo–Irish Agreement. She and O’Malley were joined in December 1985 at the launch of the new party by Michael McDowell, a former chair of Dublin South-East Fine Gael, who was unsatisfied with the Fine Gael/Labour management of the economy. As well as realism on the national question, moderate personal liberalism and an economic focus on lower taxation rather than government control, a large impetus for the strength of the party was opposition to the politics of Charlie Haughey.
I’m disappointed with the result of the referendum on Seanad abolition. There’s no point now in detailing once more why I thought this would have been a good idea and a worthy reform of our political system. The result was not what the polls predicted, and while polling firms might have found it difficult to estimate likely voters, there also was a definite swing against us. With this short time to consider the result, I think the blame for that most likely rests with the Taoiseach and his closest advisors. When he announced this in 2009, I thought (or hoped) it was a sign that he was truly embracing an element of radical and substantial political reform. Yet during this campaign, he did not show the confidence to explain and defend it to voters. I know of people who were leaning in favour of abolition but who voted against because they did not believe he should be rewarded and credited with such a change if he would not stand up for it. If it were a long-held party policy, or an initiative of another minister, it would have been fair enough to have delegated it to the director of elections, as usually occurs at referendums. But he was the one who reintroduced this to the political conversation in 2009. As the leader of our government, Enda Kenny should have explained clearly and plainly the merit he saw in this.
Party members were let down by this. A defeat in a poll is never a pleasant experience, and this is one that could have been avoided. The internal conversation and debates should have started long before the summer. And party members should have been involved in formulating our arguments. There is a time and a place for focus groups, but the political instincts of motivated and interested members should be respected and sought. We ran with poor campaign messages. The largest party in the country could never have credibility talking of the benefits of fewer politicians. The discussion of cost does have a place, but it should not have been the starting point. Not to mention some embarrassing stunts, which are probably all right as moments of levity during a campaign, but not when they become key pieces of it. We needed a wide-ranging and targeted campaign, one that showed from the start that it was a position of substance and principle, that stood up to scrutiny, based on solid research.
Fine Gael needs to learn from this. We didn’t learn from the referendum on Oireachtas Inquiries; here we are two years later with practically an identical margin against. Reform that requires constitutional amendment needs to be framed in a way that appreciates and addresses the legitimate suspicion the public have when the executive seeks to alter the arrangements in the constitution.
In the RDS count centre this morning, a non-aligned campaigner said to myself and a member of a different party that for people like us, it was a tribal matter. It wasn’t that for me. Had Fianna Fáil or any other party proposed this, and Fine Gael been against, I would still have publicly supported this. I am not right now disappointed for Fine Gael that we as a party have suffered a defeat in a poll. I am disappointed in Fine Gael, and I things change have to change.
And to those who opposed abolition, well done on a well fought campaign.
All we can determine from yesterday’s result is that the voters wanted to keep a second house. We should now think carefully and critically about how its 60 members should be selected and what their role should be.
I will then vote Yes to establish a Court of Appeal (the Thirty-third Amendment of the Constitution Bill). Over the past decade, there have been considerable and growing delays in the Supreme Court hearing of appeals from the High Court. Our Supreme Court deals with much more than its equivalents in other countries. In our constitutional system, questioning pertaining to constitutional interpretation must take precedence there, such that many civil matters are delayed in their appeals from the High Court for up to four years. Ireland has been found liable in both the European Court of Human Rights and European Court of Justice on the grounds of unreasonable delay. Having a speedy process in civil cases will set us in line international obligations on issues such as extradition and child abduction, while also making us more attractive to multinational firms, who often have concerns about lengthy litigation. These problems were detailed by Susan Denham, now Chief Justice, in 2006 in the Judicial Studies Institute Journal.
The same amendment will also remove the requirement on the Supreme Court to deliver only one judgment in cases challenging the constitutionality of laws. In cases not relating to the constitutionality of laws (e.g. high-profile cases AG v. X. on abortion or AG v. Hamilton on cabinet confidentiality), and in cases relating to laws enacted before 1937 (e.g. Norris v. AG), dissenting judgments do contribute to an understanding and development of the law, without undermining the authority of the majority judgment. These development and the value of dissenting could not have been foreseen when de Valera proposed this change as one of many in the Second Amendment in 1941. (It will not amend this in the case of referrals by the president before a bill is signed, presumably on the grounds that as such a law cannot after be challenged on constitutional grounds, diverging or dissenting judgments would not be beneficial.)
I will be voting Yes this Friday to abolish the Seanad (the Thirty-second Amendment of the Constitution Bill). I have tried to encapsulate across different platforms the various reasons I have for doing so over the course of this campaign, over different platforms. In short, in these closing days, I hold that in a country like Ireland, without clear and sharp cultural or geographical divisions, we should have a single parliamentary chamber composed of representatives elected by us to pass laws on our behalf. This is something I first considered around ten years ago, and since then it had always seemed like a common sense proposal. We hear of many ideas for its reform, but that casts it as a house in search of a purpose. What reforms are proposed are ones that should be delivered for the Dáil, as our house of representatives. And even though I don’t believe political reform should stop here, I think it is a worthy reform in itself, to remove a house elected by a privileged section of society in a proportion of university graduates, of senators I’d barely recognise elected by Oireachtas members and councillors, and 11 who may or may be not be decent senators depending on the whim and needs of the Taoiseach.
I was delighted when Enda Kenny announced this policy soon in 2009, not long after I joined Fine Gael, and that he stuck with this commitment through the election campaign and into government. I would not have had the primary focus on cost that we saw from Fine Gael posters, but I think we have had a broad debate. Whatever the result on Friday, at least the people will have had their say.
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.