The Seanad currently being elected has several little-known but strong powers which could be used to challenge the new Government, writes Jim Duffy
Eamon de Valera wanted to create a presidency and a senate in his 1937 Constitution, but both would turn out to be controversial. He justified creating both by giving them what on paper looked like useful powers, but these were constructed in such a way that they were never expected to be used.
In the case of the Seanad, he allowed the House to delay legislation it disagreed with marginally (90 days), and he also gave it what on paper looked like a dramatic new power - to trigger a referendum on controversial legislation.
But it was hoped to be a paper power, because by giving the taoiseach the power to nominate 11 senators he hoped to ensure that the government would have a comfortable majority, meaning that none of the House's powers could then be used against the government.
But why did he create an upper house at all? Historically, Ireland had almost always had an upper house. It had a House of Lords until 1800, a house Sinn Féin wanted to recreate in its plan for a "king, lords and commons of Ireland", proposed by Arthur Griffith, party founder and president of Dáil Éireann from January to August 1922.
Three of the four Home Rule Bills for Ireland contained an upper house, though only the 1920 Government of Ireland Act's 61-seat partially-elected, partially-nominated "Senate of Southern Ireland" came into being, albeit only for a short time. The House met three times in 1921 in what is now Government Buildings before adjourning sine die.
The new Irish Republic had a unicameral parliament, Dáil Éireann, but a second house returned again in the Free State (or Saorstát Éireann, as it was also known). Compared to other Irish upper houses, the Saorstát Seanad was an effective chamber, taking an active - and sometimes controversial - role in independent Ireland.
While Northern Ireland excluded its minority, the Saorstát used its upper house to bring the State's Protestant minority on board. However, the chamber fell foul of de Valera's radical constitutional reforms, holding up his efforts (Fianna Fáil lacked a majority in the House) to abolish the Oath of Allegiance, university seats in the Dáil, appeals to the Privy Council and, finally, the Seanad itself.
Few expected a senate to be created in de Valera's new Constitution of 1937, but one was, based on the ideas of corporatism contained in Pope Pius IX's encyclical Quadragesimo Anno. Forty-three seats would be elected by an electoral college of TDs, senators and councillors, from candidates in part nominated by the "industries and professions".
The downside of this arrangement soon became apparent. No matter how many high-quality experts the professions nominated, politicians simply chose other politicians, turning much of the Seanad into a waiting room for the Dáil.
Ironically, de Valera's decision to give six seats to the two main universities (Trinity had had Dáil seats until 1936), though controversial, gave the Seanad some of its finest members - they often outperformed the rest of the Seanad put together.
De Valera sought to give the government a guaranteed majority by allowing the taoiseach to appoint 11 senators. Usually that has worked, though it did cause problems when a change of government occurred during the Dáil, as the new taoiseach could not change his predecessor's senators. As a result, John Bruton's government had minority support in the Seanad, though curiously Fianna Fáil failed to make the most of that opportunity.
It is mathematically possible on this occasion that Fianna Fáil, because of the low number of seats it won in the last local elections, could find itself with a Seanad minority even with the addition of 11 appointees, given that neither the PDs nor the Greens will win seats. If that happens, one of de Valera's little-known powers could cause difficulties.
Under Article 27, the Seanad has the power, with one-third of the Dáil, to petition the President to refer certain types of Bills to the people in a referendum. The Bill would then go into limbo for up to 18 months until either the people had approved it or a general election had intervened. The Opposition could use this power to embarrass the Government on sensitive issues where it lacked public support or where the three parties in Cabinet were known to be divided.
It is not just the Government that would dread that prospect. Other unused Seanad powers directly involve the President, requiring her to intervene if the Houses are in dispute over whether a Bill is a money Bill (the Seanad has less power over those), on Government requests to limit the time the Seanad can debate a Bill or on calling a referendum.
In a worst-case scenario, Mrs McAleese could find herself having to choose whether to side with the Government or Opposition regularly over the next five years - an unenviable way to end her last term as President.
Depending on the Seanad election outcome, the next five years could be very interesting indeed in the Upper House.
Jim Duffy is a freelance journalist specialising in the Constitution