If the last few months have taught us anything, it’s how to be flexible to respond to and make the best of challenging times. We have learnt this as a people and as a parliament.
We now need to be prepared for new ways of doing things. We need to be ready for what may come next. From a legislative point of view, it is time the Constitution was modernised to protect the functioning of the Oireachtas in times of emergency, particularly as the Oireachtas will be needed to make crucial decisions to protect the people in such times.
We have made it through this crisis so far with the Oireachtas being able to pass necessary emergency legislation with members “present and voting”, as is required by the Constitution. But we cannot always be certain that this will be possible.
At present, only members of the Oireachtas who are “present and voting” may vote in parliamentary proceedings. This is appropriate in so-called “normal” times – being a member of parliament is a huge privilege. Turning up and voting is the most basic part of exercising that privilege on behalf of the community you represent.
However, just like working remotely for so many others, this pandemic has shone a light on the overly restrictive nature of the requirement to be “present” in specified circumstances.
An assessment by the Houses of the Oireachtas about how other parliaments are coping with Covid restrictions found a range of responses such as reduced member participation, remote video conferencing – but the issue of voting was problematic for most parliaments due to their own legal or technical problems. In Ireland, while we have used some of these measures to conduct parliamentary discussions, our barrier on voting is clear, yet capable of remedy. We need to change this now to give future parliamentarians the flexibility they may need in ways we cannot yet see.
There are at least three foreseeable situations in which members of the Houses of the Oireachtas should be able to vote remotely or by proxy.
First is the experience we have just gone through: a public health emergency in which shared physical presence becomes the antithesis of public service.
If we want to ensure a representative parliament, we need to ensure all those who have babies can participate fully in our parliamentary process
Second, where a member must take physical time away from their parliamentary duties for certain reasons. For example, a member who is or who becomes immuno-suppressed, through long-term illness or medical treatment, may lose their ability to participate in parliamentary votes through no wish of their own, but only through our failure to make inclusive provision for them.
The third is, of course, maternity and paternity leave. People have babies. Couples have babies. Women have babies. And if we want to ensure a representative parliament, we need to ensure all those who have babies can participate fully in our parliamentary process. Whatever mechanism we ultimately use, be it full leave, remote or proxy participation or some combination of those as determined by the actual member and parent, the ability to participate in votes remotely or by proxy will be the first hurdle to overcome. And that hurdle is grounded in our constitutional provision. There is little point in discussing any future mechanism for maternity leave without acknowledging that this is the first necessary, albeit insufficient, measure to be addressed.
The Private Members Bill I am publishing shortly is a constitutional amendment that removes the requirement to be present for every vote. It then enables each House of the Oireachtas to include in its standing orders a mechanism by which members could vote remotely or by proxy, in limited and specified circumstances to be determined by the Houses of the Oireachtas. It has the advantage of being flexible over time, allowing the Houses to make periodic changes to those rules over the decades to come to account for evolving situations that we cannot foresee today.
A new proposed Article 15.11.4 is created in the following way: “Each House may make its own rules and standing orders providing for special and limited circumstances by which members not present in that House may vote when any matter, or any class of matter as so provided for, is to be determined by a vote of that House.”
If approved by the Irish people in a referendum, it would then be a matter for each House of the Oireachtas to devise and agree appropriate systems for how and when this would apply, in what circumstances, how a member could apply for such accommodation or how it might be invoked as a necessity for all members.
I want to be clear: this is not intended for casual vacancies. This is not intended for having a long weekend or a duvet day or a little holiday. It is the enabling of new rules for how we govern remotely, if and when that ever became an imperative again, and it is the first step to a more inclusive parliament for parents and those with additional physical needs.
Being a member of the Oireachtas is an immense privilege, with particular and unique duties. Having a family or becoming ill, should not preclude you from participation in those duties as an elected representative. And the rules governing the Houses of the Oireachtas should not limit the functionality of the people’s chamber to work when our people may need it most.