Kieran Coughlan: Dáil vote reform may be unconstitutional

The recording of abstentions by TDs could leave new laws open to legal challenge

Party political conditions have driven reform and potentially  overextended the Dáil’s reach in doing so. Photograph: Alan Betson/The Irish Times

Party political conditions have driven reform and potentially overextended the Dáil’s reach in doing so. Photograph: Alan Betson/The Irish Times

 

Apart from the attempts to strengthen Oireachtas inquiries in 2011 and to introduce a unicameral system in 2013, the political establishment has consistently failed to embrace any recommendations for fundamental reform to our parliamentary and broader political system, made in many high-level reports. These range from the 1967 review of the Constitution to the most recent constitutional convention in 2014.

The downside to this failure is that Dáil reform has not only been piecemeal but had to be shoehorned into changes to internal Dáil rules and standing orders, whereas a more fundamental change to the Constitution may have been called for.

This became more acute after the stalemate of the last general election, when Dáil reform became an integral part of the “new politics” phenomenon in order to accommodate the arrangement where a minority government commands marginally more than a third of the seats in the Dáil.

Many of the reforms were long overdue and represent best practice in other systems of parliamentary government. Under the “new politics” scenario government dominance over the Dáil was seen to be given the boot by the creation of the new business committee and committees which would have real teeth such as the Budgetary Oversight Committee and even by the “election” by secret ballot of the Ceann Comhairle.

Moreover, recording of abstentions from Dáil votes was introduced to give a legitimacy to the “new politics” arrangements.

However, the “heady” circumstances of the Dáil being dominant in the executive-legislative balance for the first time led to extravagant claims on the potential impact of reforms. The subtlety of the changes has to be understood in how they underpin a political strategy by creating a backdrop to the political circumstances when most of the main parties were unwilling to go into coalition government following the general election.

Thus party political conditions, ie the Dáil arithmetic, have driven the reform and potentially have overextended the Dáil’s reach in doing so.

Democratic assembly

The Constitution in providing for the role of parliament as a legislature and democratic assembly also has checks and balances. In terms of reform the Dáil’s power to make its own rules and standing orders under article 15.10 of the Constitution is paramount.

Members of the Dáil jealously guard this power of the Dáil to be “master of its own procedures” and generally seek to extend the parameters of article 15.10 because the prospect of any legal challenge to procedural changes are very remote as they are of little consequence to the population at large.

Another major impetus is the context for reform – literally any reform – which is widespread populist approval from all quarters ranging from political scientists to the media. This clamour for reform clouded their potential impact and the necessity to put a procedure in place quickly transcended all other considerations.

One of the key areas of potential risk is the change to allow abstention of votes to be recorded as part of the Dáil voting process.

At face value it seems straightforward: why should members not record abstentions? Abstention has happened in the past but crucially not as part of the Dáil voting process.

Voting in the Dáil is provided for under article 15.11: “All questions . . . shall . . . be determined by a majority of the votes of the members present and voting . . . ”, ie by simple majority in binary form. However, under recent reforms, abstentions are recorded at the same time as part of the voting process.

While Dáil standing orders explicitly state that an abstention is not a vote, it is questionable whether the Dáil is empowered to differentiate and exclude preferences cast for neither ta nor níl in calculating the result of the vote. Given the wording of article 15.11, it is arguable that the Dáil does not have the competence to determine what constitutes a majority.

The Constitution is quite explicit in terms of voting in the Dáil and a two-thirds majority is specifically reserved for the impeachment of a judge or the president and similarly proportional representation single transferable voting is reserved for elections to the Dáil and Seanad.

Secret ballot

The Dáil is, of course, entitled to set down rules for taking of Dáil votes but in this case it has been extended to allow for a weighed majority – by qualifying how a majority is construed.

A precursor to this was the introduction of a secret ballot for electing a ceann comhairle which introduced the proportional representation single transferable vote into Dáil divisions, departing from the binary yes or no simple majority principle. Abstention which takes place as part of the voting process does the same thing: potentially, a majority could be the number of abstentions or when combined with a minority tá or níl.

The departure from the binary principle is of little consequence for the election of the ceann comhairle in that the secret ballot is only in respect of nominating candidates. The Dáil reserves the right to elect the ceann comhairle by public vote and technically there is no decision made by secret ballot.

However, lack of clarity on a majority result allowing abstentions to be recorded at the same time does have serious implications for Dáil decisions. It increases the risk of a successful legal challenge to the passage of a Bill, for example, on a conscience issue which may attract a large number of abstentions. It also has implications for the invoking of the president’s discretion to refuse a dissolution of the Dáil.

Undoubtedly legal advice can be rolled out to say that it is within the competence of the Dáil to exclude preferences of members to support neither a tá nor a níl at a vote. But the risk of a successful legal challenge to the validity of a Dáil decision is increased as it never could have been before. The expediency demanded to accommodate “new politics” may come at a high price.

The need for party politics to come to an accommodation in the formation of a government is one thing, for which ultimately the people can have their say at the ballot box. However, political expediency should not dictate reforms in the Dáil which potentially put at risk its own work and standing constitutionally.

This unsatisfactory situation serves to highlight the need for the political establishment to embrace fundamental reform in a measured and timely way, utilising the work done in various constitutional review bodies including their own former All-Party Committee on the Constitution, which up to now have been studiously ignored.

Kieran Coughlan was clerk of the Dáil from 1990 to 2013

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