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Opposition to the cabinet confidentiality referendum held at the last presidential election

26 October, 2011 Leave a comment

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 –

  1. in the interests of the administration of justice by a Court, or
  2. 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.

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Transfers in Irish presidential elections

24 October, 2011 2 comments

With seven candidates and none polling at 50%, there will be multiple counts in this election. The number of counts depends on how far apart the candidates are from each other at the lower end. If the candidate G is at 2%, F at 4% and E at 8%, then F and G can be eliminated together, as even all of G’s votes could not put F ahead of E. As many can be grouped in elimination as follow under this logic (as below, when Dana, Roche and Nally were eliminated together, as Nally and Roche could not together have put Dana ahead of Mary Banotti). The count will continue until one candidate reaches 50% of the remaining vote.

It is likely that there will a large proportion of non-transferable votes by the last count, as many might not fill their ballot to the candidates remaining by that point; for example, if someone voted 1 McGuinness, 2 Norris, 3 Davis, and left the rest blank, their ballot would not be in contention between the two candidates currently leading the polls.

Here then is a summary of the three elections to date with more than two candidates, to give an impression of the proportion of votes that were transferable to candidates in the last count, and how heavily they favoured particular candidates. In both 1945 and 1990, the Fianna Fáil candidate fared poorly on transfers, and in 1990, it was enough to push Robinson ahead of Lenihan on the second count. As polls this weekend stand (Irish Times/MRBI, SBP/Red C, Sunday Times/Behaviour and Attitudes), Michael D. Higgins will have to both narrow the gap on first preferences between himself and Sean Gallagher, and win an a significantly greater proportion of the transfers than him on successive counts to win this.

1945

Candidate First Count Second Count Total
Vote % Transfers % of
transfers
Patrick McCartan (Ind) 212 834 19.6% –212 834
Seán Mac Eoin (FG) 335 539 30.9% +117 886 55.4% 453 425
Seán T. O’Kelly (FF) 537 965 49.5% +27 200 12.8% 565 165
Non-transferable +67 748 31.8%

1990

Candidate First Count Second Count Total
Vote % Transfers % of
transfers
Austin Currie (FG) 267 902 17.0% –267 902
Brian Lenihan (FF) 694 484 44.1% + 36 789 13.7% 731 273
Mary Robinson (Lab) 612 265 38.9% +205 565 76.7% 817 830
Non-transferable +25 548 9.6% 25 548

1997

Candidate First Count Second Count Total
Vote % Transfers % of
transfers
Mary Banotti (FG) 372 002 29.3% +125 514 38.8% 497 516
Mary McAleese (FF) 574 424 45.2% +131 835 40.8% 706 259
Derek Nally (Ind) 59 529 4.7% –59 529
Adi Roche (Lab) 88 423 6.9% –88 423
Dana Rosemary Scallon (Ind) 175 458 13.8% –175 458
Non-transferable +66 061 20.4% 66 041

Note: The percentages next to the column for the second count give the percentage of the transfers received by the remaining candidates and those not transferred, not the percentage of total remaining votes.

Councils and the presidency

28 September, 2011 1 comment

This year saw a considerable jump in the number of county and city councils exercising their constitutional prerogative to nominate candidates for president. In 1997, the first year any candidate secured the support of four councils, eleven of the thirty-four councils supported candidates, between Derek Nally and Dana Rosemary Scallon.

This year, that figure has jumped to twenty-five, nominating four candidates between them, Mary Davis, Sean Gallagher, David Norris and Dana Rosemary Scallon. The bulk of these voted for Mary Davis (full breakdown below).

So we now have a field of seven candidates, with more than half nominated by Councils rather than by Oireachtas members: Mary Davis, Michael D. Higgins, Sean Gallagher, Martin McGuinness, Gay Mitchell and Dana Rosemary Scallon.

This system of nomination for the presidency has long been criticized. In researching the elections, I came across a report from The Irish Times of 26 May 1973, in which Labour Chief Whip Barry Desmond said of the “rather outdated Constitutional requirements … I would hope that in any further revision of our Constitution this question will receive objective review … with a view to broadening the democratic aspects of the scope of the nomination”.

Throughout the years, candidates who had made their wishes to contest known and who have received national media attention have failed in their attempts to win the support of councils: Alfie Byrne in 1938, Patrick McCartan in 1945 (who later secured the signatures of Labour and Clann na Talmhan TDs in an individual capacity), Eoin O’Mahony in 1966 and 1973 and Dana in 2004.

Michael Gallagher recently outlined alternative methods of securing based on signatures. If we were to move towards linking PPS numbers with the electoral register, it should not be difficult to prevent duplication and fraud, if signatories had to sign in with ID and be crossed off a database at their local Garda station. I don’t think our current system, with some sort of vetting procedure is so outrageous by international comparisons, but there is clearly demand for a change to the system to be explored. And particularly if the size of the Oireachtas is to be reduced, it will be more difficult yet to reach 20 Oireachtas signatures. We might consider a figure such as 20,000 electors, as is the case in Finland, or 50,000, which was the number who could force a referendum under the Constitution of the Irish Free State.

But while we have the current system, aspiring candidates should treat the system respectfully. Cllr Paul McAuliffe’s speech last night highlighted perhaps the biggest problem David Norris faced with councils. While his supporters had taken the time to write to him, he had not heard from Norris himself. While one might not agree with the current system, it does put either Oireachtas members or councillors in a position where they have to publicly consider the merits of a prospective candidate. Nominations from Councils are more anonymous on the nomination form, they are listed by locality, rather than specifying any voting record, making them amenable to Independents, presumably designed with that in mind. While we do have the system, we should consider what it does mean for a representative at local or national level to take their Constitutional obligation seriously, while retaining an expectation that they would facilitate a candidate in most cases. Had Norris picked six councils, which based on political alignment he believed he would have had the best chance with, and taken the time to meet with sufficient councillors there, he would likely have secured his nomination with greater ease. It would have been harder for the councillors in South Dublin or Cork to have voted against him had they had a meaningful conversation with him. Though it would have taken effort, it is how Mary Davis managed to secure such support.Here is a table summary of the Councils which nominated candidates in 1997 and for this year’s election:

1997
Derek Nally Carlow, Clare, Kildare, South Dublin, Wexford
Dana Rosemary Scallon Donegal, Galway, Kerry, Longford, North Tipperary, Wicklow
2011
Mary Davis Galway, Galway City, Kerry, Limerick, Louth, Mayo, Monaghan, North Tipperary, South Tipperary, Sligo, Waterford, Wexford, Wicklow
Sean Gallagher Cork City, Clare, Leitrim, Meath
David Norris Fingal, Laois, Dublin City, Waterford
Dana Rosemary Scallon Carlow, Donegal, Offaly, Roscommon

Sources for the table: Wikipedia, contact with Aisling Kerr in Department of the Environment, Community and Local Government.

Facilitating an Independent for president in 1945

11 September, 2011 1 comment

The leading parties this year differ from those in 1945, the first contested election, but as the only election to date where an Independent candidate secured a place on the ballot by canvassing the support of Oireachtas members, and with reports today that David Norris could well be successful in his attempts to secure a nomination in this way, it is interesting to read back on this year.

Seán T. O’Kelly, then Tánaiste and Minister for Finance, was chosen as the Fianna Fáil party candidate. Fine Gael had been declining in support, losing seats and votes at each election since 1933, and at the outset were reluctant to contest. On 11 April, The Irish Times reported that the only likely candidate was Dr Patrick McCartan. This report also included a statement from Labour that “no member of the Labour Party in the Oireachtas may sign a nomination on behalf of any Presidential candidate or associate himself in promoting any such candidate”.

Patrick McCartan had been a member of the 1st, 2nd and 3rd Dála, elected in 1918, 1921 and 1922. He reluctantly voted for the Treaty, and soon after retreated from political life, not contesting the 1923 general election. By 1945, he was associated with anti-de Valera Republicans, and received the support of the Old Comrades’ Association of the IRA (Irish Times, April 1945). McCartan had to secure the support of either four County Councils or 20 Oireachtas members; he fared poorly with the former, while working quietly on the latter.

The prospect of an Independent candidate spurred Fine Gael to action, who nominated Seán Mac Eoin, an IRA leader during the war of independence. His paper was submitted on 6 May 1945 with 17 Fine Gael signatories, as well as Independent TDs Alfie Byrne, Thomas Reilly and Richard A. Anthony.

On 15 May, Labour Party then reversed their decision, and allowed their members to sign a nomination form, perhaps concerned by then that a straight contest between the two largest parties would give Fine Gael too much of a dominant position within the opposition. Patrick McCartan was nominated with the support of 9 of the 11 Clann na Talmhan TDs, 5 of the eight Labour TDs and 6 Labour Senators. His Labour nominees included future leader Brendan Corish. This year, it is the many Independents, Fianna Fáil, Socialist Party and People Before Profit TDs and Senators who are free from any direct order as to who to nominate, while it is still not precisely sure what Sinn Féin will do.

The high salary of the president, at £22 000, was an issue in the campaign; Clann na Talmhan had agreed to sign McCartan’s form on the condition that he would accept a reduction to £5000 with expenses of £2500.

Patrick McCartan performed reasonably in the election, and transferred relatively strongly to Seán Mac Eoin, despite ideological differences, presaging the success of Clann na Poblachta in 1948 and the formation of the Inter-Party government.

Candidate First Count Second Count
Vote % Transfers % Total
Patrick McCartan (Ind) 212,834 19.6% -212,834
Seán Mac Eoin (FG) 335,539 30.9% +117,886 55.4% 453,425
Seán T. O’Kelly (FF) 537,965 49.5% +27,200 12.8% 565,165
Non-transferable +67,748 31.8%

So Seán T. O’Kelly was elected on the second count and was unopposed when he nominated himself for re-election in 1952, serving till 1959.

Sinn Féin’s bailiff dilemma

9 September, 2011 Leave a comment

Gerry Adams resigned his seat from the British House of Commons on 26 January 2011, and in accordance with the rules and customs of Westminster was granted the position of Crown Steward and Bailiff of the Manor of Northstead in order to facilitate this. This was wrongly reported as a barony by David Cameron; a baron is a member of the British nobility, while a steward and bailiff is more akin to a groundskeeper. Adams is no longer the bailiff, as the position was granted in April to Labour MP Peter Soulsby.

In any case, a point made on Twitter by mgconnor (of iCampaigned) was that Michelle Gildernew, should she be interested in standing for the Irish presidency, as is speculated, would similarly be expected to resign her seat. It was easy for Adams, as it was a near certainty both that he would succeed Arthur Morgan in Louth (he topped the poll) and that Sinn Féin would win the Belfast West bye-election (Paul Maskey won with 70%).

Neither would be true in the case of Gildernew, who is quite unlikely to win, while she won the Fermanagh–South Tyrone seat for Sinn Féin in 2010 by only 4 votes. Will anyone ask whether she should resign as Adams did, or would she respond that it’s equivalent to Gay Mitchell continuing as an MEP while standing? While that could be fair, it won’t always be as easy for Sinn Féin to transfer representatives across the border as between West Belfast and Louth.

A more pressing issue is how any Sinn Féin candidate would be nominated. With 14 TDs and 3 Senators, they are three short of the 20 Oireachtas members which would nominate a candidate. They could appeal to certain members of Fianna Fáil, particularly as they are not running a candidate, and that there are Fianna Fáil senators who owe their seats to Sinn Féin voters. I’m not sure what the relations are now between their former party colleague, Independent TD Thomas Pringle, but he would be a possibility.

Even at the 10% Sinn Féin achieved at the general election in February, it would be 10% more than Fianna Fáil will receive in this election. Add to that Socialist and People Before Profit voters who would be glad of a left-wing anti-bailout candidate, and they would probably reach around 15% at a first reasonable estimate.

Pat Cox and the presidential election

Though it might seem the sort of subject I would love to write on and analyse from different directions, I have avoided from the start commentary here on the presidential election. Given my position in Young Fine Gael, any comments on candidates outside the party might be viewed somewhat cynically, and as I did not believe that the contest within the party for the nomination was one which would be won in the blogosphere, it was something I delayed posting here till now.

Having said that much, I do hope Pat Cox secures our party’s nomination, which I’ve made no secret of in comments on Twitter and Facebook. It will surprise few given our common background in the Progressive Democrats, though he left the party in 1994. That is more an indication of a common core set of beliefs. As someone who secured the position of President of the European Parliament in 2002, and without the support of a domestic party, I think he has shown an ability to compete in Europe. It also is important to me that he secured the position because of his leadership of the European Liberal Democrat and Reform Party, the group of modern European liberals. As a general rule, I would be inclined towards ELDR member parties, with clear exceptions such as responsibility for a country’s economic collapse in Fianna Fáil’s case, or tolerance for extremism in the Dutch VVD’s case.

While I understand the frustration that the party would consider an outsider, the presidency is not quite like other political offices determined through the party system, parties have recently at times selected candidates not then an active members or office-holders, but one who represents a particular vision or message a party wishes to promote, as was the case in different ways with Mary Robinson and Mary McAleese.

Of course the other two candidates are current MEPs, so I would not at all understate their experience on the world stage. But even in that context, I believe Pat Cox’s own knowledge and experience are particularly to his credit, and that his candidacy and presidency would promote the idea of modern Ireland competing confidently in the wider world.

I remain quite realistic about his chances, and his chances and those of the other two candidates are not something I believe worth getting into too much this close to the actual result. As a final note of disclosure, my support for him is all the stronger as he is someone I know personally, having worked with him in Ireland for Europe. Therefore, it is really at this personal level, as much as politically, that I wish the very best of luck in tomorrow’s convention.

Date of the general election

5 September, 2010 Leave a comment

I was in self-imposed exile from the blog while finishing my thesis (on transfers in Irish elections). There were certainly issues and events during that time that I would have blogged on, but at best I might refer to them at a later time.

But one small thing I had in mind was on the date of the general election, prompted by yesterday’s opinion pieces in the Times. Garret FitzGerald predicted that the government would end before the 2012 budget, as that budget would be much more difficult again and the government parties would rather let the incoming government deal with that. So before October 2011, and then most likely in the summer. They wouldn’t really plan to have it in the autumn, given how the weather turns this time of year.

But I think the subject of Noel Whelan’s broad piece on the presidency is more of a reason. It would make sense to have the election people are really itching for before the one that should be above party politics. Fianna Fáil would probably like to give their candidate a fighting chance, which would be difficult if they’re still in government. That would, of course, depend on the candidates, but without that knowledge yet, they will probably keep this in mind.

And this coming summer would be respectable. In the span of Irish governments since 1923, it has not been at all unusual for them to last four years. Between 1957 and 1981, elections were called at four-year intervals. Fianna Fáil and the Greens could just decide to part amicably and call it a day in June. Either that or the Greens use an issue like the lack of a ban on corporate and union donations to parties to go (was that put into the programme for government for that reason alone) or after the bye-elections tilt things further against them, as Seán Lemass did in 1965, calling the general election as soon as the Cork Mid bye-election returned Labour’s Eileen Desmond.

So my money would be on May 2011.