At the last presidential election, held 30 October 1997, there was also a ballot to amend the constitution, the 17th Amendment to the Constitution Bill. This was to safeguard the tradition of cabinet confidentiality with explicit exceptions which sought to correct a difficulty which Justice Liam Hamilton found during the Beef Tribunal, when he was unable to question Ray Burke on his recollections of a cabinet meeting. With three tribunals of inquiry established in 1997 alone, this was of increasing importance.
It involved the insertion of a new Article 28.4.3°: -
The confidentiality of discussions at meetings of the Government shall be respected in all circumstances save only where the High Court determines that disclosure should be made in respect of a particular matter –
- in the interests of the administration of justice by a Court, or
- by virtue of an overriding public interest, pursuant to an application in that behalf by a tribunal appointed by the Government or a Minister of the Government on the authority of the Houses of the Oireachtas to inquire into a matter stated by them to be of public importance.
The amendment was supported by the five leading parties; the wording had originally been drafted during the lifetime of the Fine Gael–Labour–Democratic Left coalition, and the coalition of Fianna Fáil and the Progressive Democrats, which had been in government since June, carried the amendment bill forward, proposing it in September.
It was opposed within the Dáil by the Green Party, whose John Gormley described the attempt to railroad the amendment as “tantamount to blackmail” (The Irish Times, 28 Oct. 1997).
More notably and contentious politically, it was also opposed by senior figures within the Progressive Democrats. Party founder and former leader, Des O’Malley, then a backbench government TD, criticised the bill in the Dáil as being too restrictive. He spoke (Vol. 480, No. 4, Col. 680) of his own experiences of a Minister, and the effect the amendment would have on the ability of former ministers to write memoirs,
I was a Minister for 13 years and I know it is usual to speak with the Secretary. Will this now be illegal? Frequently it is necessary to speak with a number of civil servants about matters discussed at Cabinet. This is perfectly proper but the current proposal will make it illegal.
I am in the unusual position of having resigned, for good reason, on two occasions from Government. I know the procedure and the trauma occasioned by this. At present there is an absolute right for a Minister to explain to the House why he resigned from Cabinet. However, what is now proposed will preclude him from doing so. This is ridiculous.
It is a tradition in Britain and less so here that former Ministers write their memoirs. Two were written here in recent years by former Deputies Garret FitzGerald and Gemma Hussey. Both quote extensively from what was said and done at Cabinet meetings. In Britain, almost every former Minister writes his or her memoirs, quoting extensively from Cabinet discussions. Bona fide students of history need to know what discussions take place in Cabinet but now they will not be able to find out.
He criticized the rush of the bill, and called for it to be redrafted and delayed until the vote on the Amsterdam Treaty (which ultimately took place in May 1998).
Also outspoken was former Progressive Democrat TD (and future party leader), Michael McDowell. He publicly clashed with Mary Harney, then leader, after he wrote in an article for the Irish Independent that the proposal was “the predictable consequence of running the country out of the hip pocket and handbag of coalition leaders, without consultation or reflection”. He had also around this time criticized Mary Harney for rowing in behind Fianna Fáil and giving formal party support to Mary McAleese as a presidential candidate. He announced on Questions and Answers that he intended to allow his party membership to last until March. Significantly however, he would “not unequivocally rule out any future role in politics” (The Irish Times, 25 Oct. 1997).
The Irish Times editorial line was opposed to the referendum, with a heading “Vote No” to the editorial on the day of the vote and columnists Dr Garret FitzGerald, former Taoiseach, and Vincent Browne also wrote against it. Garret FitzGerald criticized the way that “the best that two successive government have been able to come up with has been a constitutional amendment for just two very specific and limited exceptions, outside of which the dangerous rigidity of Supreme Court’s ruling will continue to operate in a thoroughly perverse way”. He echoed O’Malley’s concerns of the right of resigning ministers to give an explanation, a right of a minister to discuss cabinet with civil servants, and the effect it would have on historians (18 Oct. 1997). Vincent Browne proposed an alternative constitutional amendment, “The confidentiality of government discussions shall not be a matter of Constitutional right but shall be regulated by law” (29 Oct. 1997), and expressed confidence that a further appeal to the Supreme Court would overturn their ruling of 1992.
The Irish Council for Civil Liberties opposed the amendment on similar grounds to those of Des O’Malley and Garret FitzGerald mentioned above (The Irish Times, 27 Oct. 1997).
It would be a stretch to draw any direct parallels between the referendum on cabinet confidentiality and tomorrow’s referendum on Oireachtas inquiries, it is interesting at least to find Michael McDowell, the Green Party, the Irish Council for Civil Liberties and The Irish Times, (and Vincent Browne as a columnist), again on the same side calling for a No vote. (And it was also Brendan Howlin who spoke for the Labour Party in the Dáil supporting the Amendment).
Ultimately, it passed by 52% to 48%, with 5% of votes spoiled. I would imagine that tomorrow’s vote on Oireachtas inquiries will be similarly tight, and again with a high proportion of votes spoiled.
While out dropping leaflets for Paschal Donohoe in Drumcondra today, and having listened to John Gormley on This Week earlier, thoughts of electoral reform came to mind. In his closing speech of the Dáil, Gormley announced his proposal to move to a mixed-member system, which they have in Germany, where half the TDs would be elected by a national list and half the TDs in single-seat constituencies. This system certainly has its merits, though I’m not sure it would entirely eliminate some of the problems we have at the moment.
For example, Gormley himself in that same interview provided an excellent example of the problem with how things are now in his discussion of his view on the proposed Poolbeg incinerator near where he lives. But such a conflict of interest would not necessarily be solved under his proposal. It would if the Minister for the Environment had been elected by the national list, but if he were the TD for Ringsend, he would be as reluctant, for both personal and political reasons, to approve an incinerator as in the current circumstances.
I also think a city as small as Dublin could be more integrated at a political level. Should politicians based in Ballsbridge not be familiar too with life in Drumcondra? Through working in as relief staff in Dublin City Public Libraries, I’ve had an opportunity I’m glad of to get to know many of the city’s suburbs. Though mostly in Pembroke Library, I’ve spent a little bit of time in nearly every branch in the city.
The area covered by Dublin City Council elects roughly 20 TDs. What if these were elected in a single constituency, which for practical reasons of ballot size would use an Open List System rather than STV? Voters would select a party, and then pick their preferred party candidate from across the constituency. If Fine Gael got 30% of the vote across Dublin, the six most popular Fine Gael candidates would be elected. Candidates who were exceptionally popular locally might make it, but candidates would ultimately be compelled to find a wider focus than neighbourhood issues. TDs would also be less likely to feel the political impact of a decision affecting their own local community if they were appealing for votes from party supporters across the city. The micro-level of politics does deserve attention too, but this could be left to local authorities.
Dublin City is only an example here, across the country merging constituencies to have regional lists, as they do in Portugal, would put focus on parties’ separate manifesto commitments, while maintaining geographical diversity in the Dáil and accountability of individual TDs.
From members of both government parties, I found something depressing about the stances they adopted on the Wildlife Bill. On the part of the Greens, given all they have agreed to since going into government, was this so much more important than taking a stance against NAMA or the continued aid to Anglo-Irish, or other such issues, to take the example of cystic fibrosis mentioned by Prof. Brian Lucey in a letter to Saturday’s Times? Equally, on the part of backbench Fianna Fáil TDs, what made protecting this hunt so much more of a cause to speak up and question government policy than many other issues, as Vincent Browne argued yesterday in the same paper. It is because of their priorities on issues like this that I would feel that the Greens are not the ideal coalition partner during an economic, fiscal and banking crisis.
But because of a bill will pass its final vote in the Dáil later today, despite all that, at the next general election, I will cast my fourth preference, after the likely three Fine Gael candidates, for the Green Party, such as it will remain in Wicklow. After reading David Quinn in the Independent on Friday and Breda O’Brien in the Times on Saturday, I warmed more to the Greens. There are many other issues which I would disagree with them on, such as on GM food, touched on by Quinn. But on certain cultural issues, I stand where they do. What sort of mentality is to describe John Gormley’s of the Roman Catholic Church’s contribution to the debate on civil partnership as “kicking an institution when it is down”, as O’Brien does? Badly phrased on Gormley’s part, a church has as much right as I do to comment in the public sphere, but while the institution still exercises the influence on curriculum in more than 90% of primary schools, and while those in the hierarchy who knew of crimes committed by priests against children still hold positions of influence, that institution is not down.
The Green Party have secured the Civil Partnership Bill, which should become law later this year. It is by no means a perfect bill; not only does it seem a little backward to introduce only civil partnership when to date seven other European countries have allowed gay couples to marry, but it has considerably fewer guarantees and protections than the Civil Partnership Act which the United Kingdom introduced in 2005. I am not convinced that this is the best we could have got constitutionally, but I could believe that it might be the best that could have been achieved politically. Without the Green Party in this government, even these protections in this bill would not have been introduced this year, and I will give that credit where it is due.
Three of the best cases for not abolishing Seanad Éireann to me seem to be the three elected for the University of Dublin, Shane Ross, David Norris and Ivana Bacik. Ironically, outside of wholesale abolition, their seats seem to be most at risk. I can understand the argument that if it were to be abolished now, we would lose the great independent voices they provide, but it is quite possible that we will lose them regardless.
The Seventh Amendment to the Constitution, approved in 1979 by 92%, allowed a redistribution of the three University of Dublin and 3 National University of Ireland seats to include graduates of other third-level institutions. Legislation has yet to be made for this provision, but Minister John Gormley has promised a change by the end of the year. This looks likely to be a move to reduce to one each the seats elected by Trinity and NUI, with the other four graduate seats elected by graduates of all other third-level institutions.
Any change of this nature implicitly accepts the idea that graduates deserve an extra voice in the Oireachtas by virtue of being a graduate. By the four general graduate seats not being tied to any particular institution, there would be no appeal in the campaign for that election to any institutional loyalty, as occurs particularly in the election for Trinity, because of its size and unity. These would be seats that would end up being fought by the political parties on a national scale, to all those who happen to be graduates. So rather than the current seats, which have long historic origins, dating back to 1613, and which have served a useful purpose by electing good Senators, an election under this proposal would be much more elitist in nature, fought on a national scale in the media but directed only at graduates of any institution. It’s easy to dismiss the current system as an historic quirk, but that would be the case under the proposed change.
However much one might dislike the idea that there are certain graduates and not others who have this extra franchise, the answer for those who find this distasteful is not to extend this elite section of the electorate, but to end it entirely. Until then, let us be thankful for the benefits of this inequality gives us in the form of the great Senators it has delivered to date.