Seanad Éireann should be reformed, not abolished

Opinion:My experience has been that the better legislative work by far is done in the Seanad, not in the Dáil

There is a general perception that our parliamentary institutions are not working. I agree. But I think the problems lie largely in the Dáil – not so much in the Seanad. And they won’t be solved by handing absolute power to a dysfunctional, unreformed Dáil.

The major problem with the current Seanad is the electoral system imposed on it by a Dáil determined to subjugate it and to abuse it for party political ends.

In the late 1980s I was asked to draft a constitutional amendment to abolish Seanad Éireann. At the time I favoured doing so. It became clear to me that the amendments to the Constitution required to dispense with it would be far-reaching. I now believe that the abolition project was misconceived. Seventy-five amendments would be required to abolish the Seanad. Entire articles would be deleted. Simple abolition, in short, would leave our Constitution in a weakened, wounded state – a mutilated wreck.

Having initiated major legislative reforms in both Houses of the Oireachtas, my experience was that the better legislative work by far was done in the Seanad. The guillotine was rarely used to close debate because filibustering and cynical time-wasting was unknown there, and because the Seanad valued its own time.

Seanad Éireann has the following vital constitutional functions in terms of safeguards, checks and balances:

it has a veto over the impeachment of the President, our independent judges, and our financial watchdog, the CAG.

under article 29, it has a veto over Ireland abandoning the unanimity requirement at EU level in matters such as corporate tax.

it must give “prior approval” to EU proposals for enhanced co-operation, the Schengen acquis, and the “opt outs” of Ireland in respect of EU measures on freedom, security and justice.

The capacity of the Dáil to override the Seanad in respect of legislation is subject to a further constitutional safeguard. The President, under article 27, can, if requested by a majority of the members of Seanad Éireann and one-third of the members of Dáil Éireann, decline to sign any Bill “on the ground that the Bill contains a proposal of such national importance that the will of the people thereon ought to be ascertained”.

Progress?

Do we really want to sweep all these safeguards, checks and balances away, just to hand such far-reaching powers to a majority in the dysfunctional, tightly whipped, and then unfettered and uncontrollable Dáil? Would that be progress? Bluntly put, if Seanad Éireann were abolished, there would be very little standing in the way of a transient majority in Dáil Éireann acting in a manner which had far-reaching adverse effects on the nature and quality of Irish democracy.

One of the rarely discussed aspects of the Lisbon Treaty is the enhanced function envisaged for member states’ parliaments in EU legislation. I believe Enda Kenny was spot on at the MacGill Summer School when he suggested, a few months before his notorious U-turn and proposal to abolish the Seanad, that a reformed Seanad Éireann could play a valuable part in enhancing the parliamentary response of the State to our opportunities and obligations in the EU process.

The Oireachtas is nowhere near being in a position to fulfil the new role envisaged for it under Lisbon, and most TDs have no personal appetite for this work.

The Seanad is also the only means whereby non-TDs can be brought into government as ministers. Do we really want to prevent that? Do we now regret that notable persons such as WB Yeats, Mary Robinson, David Norris, TK Whitaker, Gordon Wilson, Séamus Mallon, were given a voice at the heart of one of the institutions of Irish democracy?

What is the excuse for destroying such a forum when we have every opportunity to reform it without any significant cost and to be proud of it? By enacting a Seanad Reform Bill now, the next Seanad could be elected on the basis of gender balance, bringing new voices and new points of view, and new opportunities for minorities to be represented in our parliament.

Without any constitutional amendment, we could elect the Seanad on the basis of giving every citizen the right to register as a voter for one of the vocational panels and to elect candidates nominated in a manner free from the party political process.

Savings exaggerated

Proponents of abolition have dishonestly claimed that it would save €150 million over the life of one Dáil. The clerk of the Dáil and the accounting officer to the Oireachtas, Kieran Coughlan, has publicly testified to the contrary – that the gross annual saving from abolition would be about €9.2 million.

The net saving would be very much less. Given that at least 30 per cent of that goes back to the exchequer in taxes, levies and VAT, the real annual cost of the Seanad to the taxpayer is probably between €6 million and €7 million, just 1 per cent of the annual budget of Dublin City Council.

Last year TK Whitaker and some other notable figures made a public appeal in this newspaper to reform the Seanad rather than abolish it. They said: “. . . rather than amend the Constitution to abolish the Seanad, it would be better to reform the Seanad’s electoral law to empower citizens to become more directly involved, to continue and strengthen the presence in the Irish parliamentary process of voices and viewpoints that might not be heard if future parliamentarians were only to be elected to a single chamber solely on the basis of geographical multi-seat Dáil constituencies”.

I leave it to the reader to judge whether these were words spoken in the interests of a discredited political system, as we are asked to believe, or whether they were words spoken from wisdom, experience, patriotism and from a profound concern for the future of our State by someone whose judgment we ignore at our peril.

Michael McDowell SC is a former tánaiste, minister for justice and attorney general. This is an edited version of an address he gave to a meeting of former Oireachtas members in the Dáil last Friday.