Noel Whelan: The Seanad will be Enda Kenny’s next problem

In an ironic twist of fate the Seanad, which he tried to abolish three years ago, and the constitutional provisions relating to it could be set to dramatically complicate Enda Kenny’s return to power as Taoiseach.

Kenny’s efforts to form a government need to come to a head next week because we will soon enter dodgy constitutional terrain.

Article 18 (9) of our Constitution provides that every member of Seanad Éireann continues to hold office until the day before the polling day of the general election for the new Seanad. This means that our current Senators all cease to be Senators on Monday or Tuesday of next week.

Article 18 (8) of the Constitution provides that 11 members of Seanad Éireann shall be nominated “by the Taoiseach who is appointed next after the re-assembly of Dáil Éireann following the dissolution thereof”. This means that while a caretaker Taoiseach can exercise most of the powers of the Taoiseach he cannot nominate the Senators to the new Seanad: only a Taoiseach elected by the new Dáil can do so.

As of next week therefore our outgoing Senators will be out of office but the composition of the new Seanad will be 11 short. We will have an incomplete Oireachtas, with no functioning second house and, unless he is elected Taoiseach by the new Dáil, Enda Kenny will not have the capacity to cure that situation. Some have argued that the new Seanad could sit or pass law without the 11 Senators being nominated by the Taoiseach. It is important to note, however, that article 18(1) of the Constitution provides that “Seanad Éireann shall be composed of 60 members, of whom 11 shall be nominated members and 49 shall be elected members”.

A Seanad without the 11 nominated members is not a Seanad, and any legislation passed by it would be open to constitutional challenge.

Even if Kenny, having finalised an enabling deal with Fianna Fáil attracts the support of enough Independents and manages to get elected Taoiseach next week, his Seanad-related difficulties do not end there.

Predicting the outcome of Seanad elections is precarious and complicated. We can get some idea of the likely political identity of the 43 Senators on the vocational panels by looking at the political composition of the electoral college of councillors, TDs and outgoing Senators who elect them. Looking at that and assuming that at least five of the six members of the university panel will be Independents, it seems likely that even Fine Gael and Fianna Fáil combined will not have a majority in the new Seanad.

Pressure

This would put a lot of pressure on Kenny to stuff the Seanad with Fine Gael hacks among his 11 nominees so as ensure that the passage of any legislation his new government might propose could be a little easier. He may also be tempted to use his Seanad nominations to shore up deals for support with other Dáil parties.

However, in the era of so-called “new politics” it would not be acceptable for him to do so. Seven of those he nominated in 2011 were Independents who did not take a Fine Gael or Labour whip. One of those, Martin McAleese, resigned in 2013 and was replaced by a Fine Gael councillor and Eamonn Coughlan later joined Fine Gael. If there is even to be a pretence of a new era in politics surely Kenny will be expected to nominate at least as many non-party Senators to the new Seanad as he nominated in 2011.

It seems clear therefore that in addition to its vulnerable minority position in the Dáil a newly elected Kenny-led government would not have a working majority in the Seanad. Any deal Kenny does with a select group of Independent TDs would have no impact in the Seanad. Even with many Fine Gaelers among his nominated 11 Kenny would be dependent on Fianna Fáil abstentions to get any legislation passed there and even that may not be enough.

Life span

The Seanad cannot delay money Bills and can only delay most other legislation by 90 days. Even that, however, will hamper the effectiveness of the new Kenny minority administration and shorten its life span.

A more vibrant Seanad is of course a very good thing in itself. It improves the quality of political debate and of legislation. It is that for which many of us who have campaigned for Seanad reform have long hoped. The Seanad should operate as a check and balance on a government which holds sway in the Dáil.

This new government, however, will hold sway in neither house. In reality Fianna Fáil will have Enda Kenny’s new government by the proverbials in both the Dáil and the Seanad. After a disastrous election Fine Gael looks set to gain office again and even more more office but little real power.