[Irish Senate] Report on Reform of the Seanad (2004)

8/6/2019 [Irish Senate] Report on Reform of the Seanad (2004)

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REPORT ON SEANAD REFORM

SEANAD IREANN COMMITTEE ON PROCEDURE AND PRIVILEGES

SUB-COMMITTEE ON SEANAD REFORM

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T A B L E O F C O N T E N T S

Foreword 4

Powers, Membership and Terms of Referenceof the Seanad ireann Committee on Proceduresand Privileges Sub-Committee on Seanad Reform 6

Executive Summary 7

Chapter 1. Introduction 15

Chapter 2. Historical Background, Composition and Electoral System 19

Chapter 3. Defining the Problem 25

Chapter 4. Review of evidence submitted to the Sub-Committee 27

Chapter 5. Findings and Recommendations 37

Chapter 6. Implementation Framework 65

Appendices

A. Previous Reports on Seanad ireann 70

B. Written Submissions received by the Sub-Committee on Seanad Reform 71

C. Oral Submissions presented to the Sub-Committee on Seanad Reform 77

D. Seanad ireann: Lessons from Overseas 79

E. Implementation of List Pre-Electoral System for Directand Indirect Elections to Seanad ireann 97

F. The National Framework of Qualifications 107



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When the 22nd Seanad convened in September2002, there was a widespread consensus amongSenators that the issue of Seanad reform needed tobe addressed. In particular, there was a strong viewthat the Seanad should lead the reform process byfacing squarely the major issues and dealing withthem objectively and comprehensively.

In its first week of sittings, the new Seanad held adebate on the reform of its composition andfunctions. At the conclusion of this, it passed aresolution instructing the Committee on Procedureand Privileges to establish a Sub-Committee onSeanad Reform to bring forward proposals on reformof the House.

This report contains those proposals and it is our

privilege to present them to the Committee onProcedures and Privileges. Our report sets out ouranalysis and findings following the completion of atwelve-month review. Our review was wide-rangingand thorough, involving the analysis of elevenprevious reports on the Seanad, research on upperhouses overseas and an extensive public consultationprocess.

Of particular importance to this review was theinvolvement of the public, who for the first time wereinvited to express their views on reform of the Seanad to

a committee of the House. This invitation wasenthusiastically accepted; we received 161 writtensubmissions and held four days of public hearings.What was striking about this process was, not only thegreat care and thought that many people had evidentlyput into their submissions, but also that very few peopleindeed called for the abolition of the Seanad. Theoverwhelming majority wanted it reformed to make itmore democratic and more relevant to the needs of ourevolving society. It was also clear from thesesubmissions, however, that Irish citizens currently see amajor gap between themselves and their Upper House.

Our proposals are intended to bridge this gap. Theyare radical and far-reaching, involving constitutionalchange, new legislation and extensive revisions ofthe Seanads standing orders. We debated andargued at length before agreeing a coherent andcomplete package of recommendations. We stronglybelieve that the recommendations should beimplemented in their totality as a package. We alsobelieve that it is desirable that decisions on therecommendations be taken quickly and on an all-party basis.

In broad terms, our recommendations involve newways to choose senators that involve the public muchmore closely, combined with significant changes tothe Seanads functions. We believe that thesechanges will give a much greater public legitimacy tothe Seanad while ensuring that its composition differsfrom that of the Dil. In addition, we feel that it willenhance the prospects of people with par ticularvalued expertise being able to make a contribution tothe work of Seanad ireann.

The significant changes to the functions of Seanadireann that we have recommended involve thedefinition of a new role for the House in the areas oflegislative consultation, EU affairs, social partnership,North/South Implementation Bodies, and the scrutinyof public appointments. In making theserecommendations, we have sought to define a newdivision of labour between the two Houses of theOireachtas and to identify important jobs thatcurrently fall between the cracks in our politicalparliamentary system.

We acknowledge that this report will haveconsiderable political implications. Difficult decisionswill have to be taken involving sensitive politicalmatters. But if progress is to be made, we believe thatthere is an urgent need to accept the political realitythat Seanad ireann really must be reformed if it is to

FOREWORD



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make a viable and distinctive contribution to theeconomic, social and political affairs of our country.

We feel strongly that the recommendations in thisreport provide the framework for doing this in a

reasonable and balanced way. They offer a new start,and a new sense of purpose to Seanad ireann. Weare confident that, when implemented, they willempower the Seanad to make a major contribution tomeeting the challenges facing twenty-first centuryIreland.

Senator Mary ORourkeChairperson and Leader of the Seanad

Senator Brian HayesLeader of the Fine Gael Group

Senator John DardisDeputy Leader of the Seanad

Senator Joe OTooleCo-ordinator of the Independent Group



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POWERS, MEMBERSHIP AND TERMS OF REFERENCEOF THE SEANAD IREANN COMMITTEE ON PROCEDUREAND PRIVILEGES SUB -COMMITTEE ON SEANAD REFORM

The Sub-Committee on Seanad Reform wasestablished by the Committee on Procedure andPrivileges of Seanad ireann. Its terms of referencewere as follows -

1. In order to equip Seanad ireann to make a full andeffective contribution to Irish political life in thetwenty-first century, the Seanad CPP Sub-Committee on Seanad Reform shall undertake areview of and make recommendations on thecomposition and functions of Seanad ireann.

2. In undertaking the review, particular regard shall behad to the following matters:

a. Composition

i. The most appropriate basis of primaryrepresentation in Seanad ireann;

ii. University representation either in its currentor an amended form;

iii. The nomination of Members by AnTaoiseach; and

iv. The most appropriate basis for providingrepresentation for emigrants and personsfrom Northern Ireland.

b. Functions

i. The role of Seanad ireann in the passage oflegislation;

ii. The contribution Seanad ireann could maketo enhanced parliamentary accountability andscrutiny;

iii. The extent to which Seanad ireann couldengage in the review of public policy; and

iv. The role of Seanad ireann in European

Union affairs.

3. In making its recommendations, the Sub-Committeemay present the following for consideration:

i. Proposals that could be implemented by wayof changes to the Seanad ireann Standing

Orders relative to Public Business;

ii. Proposals that could be implemented by wayof changes to Statute Law; and

iii. Proposals that require changes to theConstitution.

4. The Sub-Committee shall have the followingpowers:

i. Power to invite and accept written and oralsubmissions from interested persons orbodies, including political parties;

ii. Power to engage the services of persons withspecialist or technical knowledge; and

iii. Power to undertake travel.

5. The Sub-Committee shall present to Seanad ireanna final report not later than 31st May 2004.



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EXECUTIVE SUMMARY

BACKGROUNDIn October 2002, after a wide-ranging debate on SeanadReform, the Seanad passed the following resolution:

That Seanad ireann, recognising the views expressed byMembers of the 22nd Seanad concerning the issue ofSeanad reform, instructs a Sub-Committee of theCommittee on Procedure and Privileges to be establishedso that proposals can be brought forward.



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8 E X E C U T I V E S U M M A R Y

In February 2003 the Committee on Procedure andPrivileges established the Sub-Committee on SeanadReform and agreed its terms of reference. Themembers appointed to the Sub-Committee wereSenator Mary ORourke (Chairperson and Leader of theSeanad), Senator John Dardis (Deputy Leader of theSeanad), Senator Brian Hayes, Senator Joe OToole andSenator Brendan Ryan.

The terms of reference of the Sub-Committee providedthat it should review and make recommendations onthe future composition and functions of the Seanad, inparticular the Seanads electoral system and role in theareas of legislation, parliamentary accountability, publicpolicy and EU affairs.

In discharging its functions, the Sub-Committees core

objective was to define a viable and creative role forthe Seanad in the 21st century. The Sub-Committeebelieves that abolition of the Seanad should only beconsidered if a viable and creative role for it cannotbe found. In this context, it is striking that very fewpublic submissions received by the Sub-Committeecalled for the abolition of the Seanad. The vastmajority wished to see it reformed, to allow it to makea more meaningful contribution to the politicalprocess in Ireland.

Previous work on Seanad ReformTo date eleven separate reports have been publishedon the reform of the Seanad, focusing mainly on itscomposition and electoral system (see Appendix A).

The first report was published in the aftermath of theSeanad election in 1928 and the most recent reportswere published in 1997 and 2002 by the All-PartyOireachtas Committee on the Constitution.

Defining The ProblemAs previous reports and the public hearings on SeanadReform have underlined, the Seanad is widely seen ashaving two main problems:

1. It has no distinctive role in the Irish political system;and

2. Its arcane and outdated system of nomination andelection diminishes senators public legitimacy.

The Seanad has no distinctive role in the Irish politicalsystem because, firstly, it is totally subordinate to Dilireann. It is dissolved every time there is a Dilgeneral election, and the legislative process set out inthe Constitution gives the Dil the final say ineverything. Therefore, in the eyes of many members ofthe public the Seanad is seen as weak, ineffective and

of questionable value. These difficulties arecompounded by the fact that the Seanad is dominatedby the Government.

The other major problem is the Seanads electoralsystem. The system of vocational panels tends mainly toproduce people with political backgrounds rather thanvocational backgrounds. This is because while thenominating bodies that nominate some of the candidatesare vocational in character, the electorate is political andthe bodies themselves do not form part of it. Therefore,unless a candidate comes from a political background,



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he/she has practically no chance of getting elected.Problems exist too with the nominating bodies in thatmany of them are now of questionable relevance tocontemporary Ireland.

Finally, there is the issue of university representation inSeanad ireann. The current arrangements excludethe graduates of the vast majority of third-levelinstitutions despite the fact that a constitutionalamendment was passed in 1979 to broaden the scopeof the franchise beyond TCD and the NUI to otherinstitutions of higher education in the State. Thesystem is also open to criticism on the basis that itconfers a basic democratic right - the right to vote - ona select group of people solely on the basis ofeducational attainment.

Public consultationAs part of its review, the Sub-Committee invited thepublic to make written and oral submissions. The Sub-Committee received 161 written submissions and after

examining these in detail invited 52 organisations andindividuals to attend public hearings to expand furtheron their written evidence. The hearings took placebetween 16 September and 19 September 2003 inthe Seanad Chamber and witnesses included theTaoiseach, Mr. Bertie Ahern TD, the former Taoiseach,Mr. John Bruton TD, political parties, nominatingbodies, third-level education interests, groupsrepresenting minorities, and members of the public.

The following points represent a distillation of the viewsexpressed during the public hearings:

REFORM OF THE COMPOSITION

- There was near unanimous agreement in thesubmissions that the current set of vocationalpanels has become outmoded and needs at thevery least to be significantly reformed.

- There was considerable support in the publicsubmissions for the view that Seanad electionsshould be timed to coincide with European

Parliament and local elections.

- There was no consensus on whether universityseats should be retained; many submissions putforward vigorous arguments for their abolition.Among those supporting the continuation ofuniversity seats, there was a near completeconsensus that the franchise should be extended toeveryone with a degree level qualification from arecognised third-level institution in the State. Therewas effectively no support whatsoever for retainingthe current system that confines university

representation to TCD and the NUI.



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- The most common response in the publicsubmissions to the issue of the Taoiseachsnominees was that the system should be retainedbut that selection criteria should be introduced. Inparticular, this was seen in many submissions as aviable solution to the issues of Northern Ireland andemigrant representation in the Seanad. It was alsoseen as a way of dealing with the representation ofmarginalised groups unlikely to succeed in gainingrepresentation by any other means.

- In general, while there was probably generalagreement on the desirability of finding some formof Seanad representation for Northern Irelandresidents and emigrant groups, there was no clearsense of how this might be achieved in a realisticand workable way other than by using the system ofTaoiseachs nominations.

REFORM OF EXISTINGPOWERS AND FUNCTIONS

- Either explicitly or implicitly, virtually all submissionsaccepted that a revised role for the Seanad shouldnot bring it into conflict with the government.

- With a few exceptions, submissions did not makerecommendations to give the Seanad more formalpowers over the legislative process.

- The need to involve the Seanad at an early stagein the legislative process seems to be a matter ofuniversal consensus. In general, the possibility thatthe Seanad, or more realistically Seanadcommittees, would become vehicles for morewidespread and effective public consultation onproposed legislation was one of the mostinteresting new ideas to emerge from the publichearings.

- There was virtual unanimity in the publicsubmissions in favour of giving the Seanad anenhanced role in the review of EU affairs, both inrelation to general policy and more specifically inrelation to legislation.

- There was near unanimity in the public submissionsin favour of MEPs having a right to attend, speak in,but not vote in, the Seanad, in effect an extension ofexisting arrangements. There was also strongsupport for the Seanad having the right to inviteMEPs to speak on particular matters.

- There was broad consensus in the publicsubmissions that the role of the Seanad in reviewingpublic policy should be enhanced.

- There was a widespread view in the publicsubmissions that the social partnership systemneeds to be given a more democratic basis, possiblythrough an enhanced role for the Seanad inconsultation with social partners.



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Summary of Findingsand Recommendations

THE VOCATIONAL PANEL SYSTEMThe core question on the composition of Seanadireann concerns the system of vocational panels, andwhether this can be reformed in a way that reflects theeconomic and social life of 21st century Ireland. If itcan be reformed, what vocational interests should nowbe represented and how should they be weighted? If itcannot be reformed, what system of representationshould replace it?

The Sub-Committee believes that it is not possible toreform the panel system to generate anything evenvaguely approaching vocational representation. This isbecause, first, it would be extremely difficult to agreethe precise content and weighting of a new set ofvocational panels for the 21st century; second, it maywell not be possible to enforce strict vocational criteriaon candidates running in a Seanad election; and third,the administrative arrangements for structuring theelectorate in agreed vocational terms are almostimpossible to envisage.

The Sub-Committee therefore took the view that

the time has come to put in place a radicalalternative to the vocational panel system.

RECOMMENDATIONS ON THE FUTURECOMPOSITION OF SEANAD IREANN

Size- The reformed Seanad should have 65 members, of

whom 32 should be directly elected, 20 should beindirectly elected and 12 nominated by theTaoiseach. The remaining seat should be filled bythe Cathaoirleach who should be deemed to be re-elected as a member of the House (note: if theCathaoirleach decided not to serve again, themembership of the Seanad should be 64).

- Of the directly elected senators, 26 should be electedto a national constituency under list-PR, and 6 to anational higher education constituency under PR-STV.

- 20 senators should be indirectly elected under PR-STV to a national constituency by countycouncillors, Dil deputies and senators.

- 12 senators should be nominated by the Taoiseach.

Rolling Renewal- The Seanad should be renewed on a rolling basis.

- The direct elections should take place on the sameday as the European Parliament and local elections.

- The indirect elections should take place not laterthan 90 days after the Dil General Election.

- The Taoiseachs nominations should be made afterthe Dil General Election.

Direct Elections- There should be a single national constituency

consisting of 26 seats elected under list-PR usingthe largest remainder system.



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- The direct election to the Seanad should take placeon the same day as the European and local elections.

- A national register of Seanad electors should becompiled. The electorate should comprise all those

entitled to vote at Dil general elections, excludingthose who had chosen to exercise their franchise inthe higher education elections and those entitled tovote in indirect elections.

- Voters should cast their votes at polling stations (aperson could apply to vote by postal ballot if he/shewere to be away from the constituency on pollingday; such application to be made not later than onemonth before the polling date).

Higher Education Constituency- There should be a single national constituency

consisting of six seats elected under PR-STV.

- The election to the university seats should takeplace on the same day as the European and localelections.

- The electorate should comprise all graduates ofinstitutions of higher education in the State holdinga primary degree or an equivalent award at level 7in the National Framework of Qualifications.

- To run in the election, each candidate should benominated by ten graduates.

- Each candidate should nominate an alternate inaccordance with the arrangements in place forEuropean Parliament elections.

- Voters should cast their votes at polling stations (aperson could apply to vote by postal ballot if he/shewere to be away from their constituency on pollingday; such application to be made not later than one

month before the polling date).

- A once-off registration process should take place forexisting graduates so that they can decide whetherthey wish to opt onto the Higher Education registerof electors and out of the National Register ofelectors.

- Once the initial register is compiled, eachsucceeding years graduates should choose ongraduating between being on the Higher EducationRegister or the National Register.

Indirect Elections- There should be a single national constituency for

indirect elections consisting of 20 seats electedunder PR-STV.

- The indirect election to the Seanad should takeplace not later than 90 days after a Dil GeneralElection.

- The electorate should comprise county and countyborough councillors, and members of the incomingDil and Seanad.

- A national register for indirect elections should becompiled by the Clerk of the Seanad.

- To run in the indirect election, a candidate should

be nominated by ten people on the register ofelectors for indirect elections. Each nominator couldonly nominate one candidate.

- Voters should cast their votes by postal ballot.

Taoiseachs Nominees- The Taoiseach should nominate twelve senators.

- Two senators should be from Northern Ireland, oneeach from the Unionist and Nationalist traditions.




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This provision should be specifically defined eitherby way of constitutional amendment or legislation(the Sub-Committee recommends the latter).

- In nominating senators, the Taoiseach should have

regard to the capacity of his nominees to representemigrants, immigrants and under-representedgroups in Irish society. This should be provided forin legislation.

Former Taoisigh and Tnaist- Former Taoisigh and Tnaist should have the right

to attend and speak, but not vote, in the Seanad.

Automatic Re-Election of theCathaoirleach of Seanad ireann- The Cathaoirleach of Seanad ireann should be

deemed to be re-elected as a Member of the House ata Seanad General Election, in recognition of the non-political nature of the post.

RECOMMENDATIONS ON THE FUTUREFUNCTIONS OF SEANAD IREANN

Legislation- A formal system of public consultation should be put

in place in the Seanad to allow for consultation withinterested groups and individuals early in thelegislative process.

EU Affairs- The Seanad should be given a new role in EU

affairs with responsibility for

i Assessing legislative and other proposals goingbefore EU Councils;

ii Reviewing draft EU legislation of major nationalpolicy importance;

iii Providing Irish MEPs with a domestic forum todiscuss EU issues and account for their work; and

iv Developing a medium-term policy framework toaddress the challenges and opportunities facingIreland in Europe over the next ten years.

Public Policy- The Seanad should assume the role of principalpolicy reviewer in the Houses of the Oireachtas,concentrating initially on

i Medium-term economic and social planning;

ii Performance of Government Departments, Stateagencies and Semi-State bodies;

iii Social Partnership; and

iv North-South Implementation Bodies established

under the British-Irish Agreement.



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Senior Public Appointments- The Seanad should be assigned responsibility for

the scrutiny of senior public appointments, andlegislation to give effect to this role should bebrought forward by the Government.

Right of Attendance at Cabinet- The next Leader of the Seanad should have the right

to attend Cabinet with the status of either a Ministeror Minister of State (the current Leader of theSeanad has stated that she does not wish to beconsidered for this Cabinet position).

SUPPLEMENTARY RECOMMENDATIONS

Houses of the Oireachtas Commission- The Houses of the Oireachtas Commission Act

2003 should be amended to include the Clerk ofthe Seanad as an ex officio member of the Housesof the Oireachtas Commission.

- The transparency of the process leading to theappointment of senators to the Houses of theOireachtas should be improved.




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CHAPTER 1INTRODUCTION

Background to the ReportOn 18 February 2003, the Committee on Procedure and Privilegesof Seanad ireann established the Sub-Committee on Seanad

Reform to review and make recommendations on the futurecomposition and functions of the Seanad. The terms of reference ofthe review required the Sub-Committee to examine, in particular, theSeanads electoral system and its role in the areas of legislation,parliamentary accountability, public policy and EU affairs.



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To date eleven separate reports have been published onthe reform of Seanad ireann, focusing mainly on itscomposition and electoral system. The first report waspublished in the aftermath of the Seanad election in1928 when seventy-six candidates ran for nineteenseats, counting of ballot papers took sixteen days, andultimately half the successful candidates were electedwithout reaching the quota.

More recently in 1996, the Constitution Review Groupexamined the issue of Seanad reform andrecommended that a comprehensive, independentreview be carried out. This was subsequentlycommissioned by the All-Party Oireachtas Committeeon the Constitution and on foot of it the Committeemade recommendations on the composition andfunctions of the Seanad in 1997.

The All-Party Oireachtas Committee revisited the issueof Seanad ireann in 2002 in the context of its widerreview of the institutions of the State. It largelyreaffirmed the 1997 recommendations on the functionsof the Seanad but brought forward newrecommendations on the Seanads composition.

Along with the various reviews, the Seanad itself hasheld a significant number of debates on the reform ofits composition and functions. During these a variety ofsuggestions were made to develop its functions and

improve its standing.

This report seeks to build on the work to date in orderto develop a broader perspective on the reform ofSeanad ireann. It is a serious attempt by the membersof the Sub-Committee to get to grips with a complexissue, consult with all stakeholders and chart anagenda for comprehensive change that will involveconstitutional, legislative and procedural elements.Coming to the problem from a range of differentperspectives, members of the Sub-Committee havenonetheless reached a consensus on the final package

of recommendations in this report. They have done thisin the interest of developing a more vibrant andcreative Seanad, a House that should in the futureenjoy a much greater level of public legitimacy.

The implementation of this report will not be easy andwill require sustained effort over the next twelve months.But as Irish society becomes more complex anddemands for participation, accountability and scrutinyincrease, it is essential that the Seanad makes a rich andeffective contribution to political life in the 21st century.

The Approach taken by theSub-CommitteeThe Sub-Committee started work in March 2003 byreviewing previous reports on the composition andfunctions of Seanad ireann. Eleven reports wereexamined along with various Seanad debates (seeAppendix A).

On completing this work, the Sub-Committee began theprocess of consulting with relevant groups andorganisations. It placed advertisements in a selection ofnational and Northern Ireland newspapers in May2003, inviting interested parties to make writtensubmissions. In total, 161 written submissions werereceived. These offered a wide variety of views andmany were substantial, considered and wellresearched. All of the submissions can be found on theHouses of the Oireachtas website - www.oireachtas.ie.

Having analysed the submissions in detail, the Sub-Committee invited 52 organisations and individuals toattend hearings to expand further on the evidencealready submitted. These hearings took place over fourdays between 16th and 19th of September 2003 inthe Seanad chamber. The transcripts are also includedon the Oireachtas website.

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The other main strand of the Sub-Committees workwas to look at lessons to be learned from the operationof second chambers overseas. In this regard, the Sub-Committee drew on research undertaken by Dr. MegRussell, a senior research fellow in University CollegeLondon, in connection with the reform of the House ofLords. Dr. Russells work provided a valuableinternational context for the review of Seanad ireann.A paper outlining the composition and functions of sixoverseas senates is included at Appendix D.

Finally in November 2003, the Sub-Committee visitedthe House of Lords to research and discuss theexperiences of parliamentary reform in the UnitedKingdom. During the course of the visit the Sub-Committee had discussions with Baroness Amos,Leader of the House of Lords, and Lords Carter, Roperand Strathclyde. The Sub-Committee also met Dr. MegRussell and her colleagues, Professor Robert Hazell andDr. Simon King, in the Constitution Unit in UniversityCollege London. The Sub-Committee wishes to expressits thanks to all those it met in the House of Lords andUniversity College London. Their advice, openness, andhospitality were greatly appreciated.

AcknowledgementsThe Sub-Committee on Seanad Reform would also like

to thank those who contributed to its consideration ofthis important and complex subject through written andoral submissions. The Sub-Committee greatlyappreciated the care and effort that went into thepreparation of the submissions, and the time thatwitnesses gave to attend the public hearings. All of theviews expressed in the written and oral submissionswere carefully considered and ultimately they informedthe analysis and recommendations in this report.

The Sub-Committee also wishes to place on record itsappreciation of the work of Professor Michael Laver of

Trinity College, Dublin who acted as its policy adviser.Through his expertise and commitment, Professor Lavermade a major contribution to the successful completionof this review. He was an invaluable source of soundadvice and support throughout the process.

The Sub-Committee also wishes to thank its Secretary,Mr. Peter Finnegan, and Clerk, Mr. Eugene Crowley fortheir input over the last year. Finally, particular thanksare due to Ms. Marie Austin from the Northern IrelandAssembly for her work and dedication to the project.

ResignationOn 14 January 2004 Senator Brendan Ryan resignedfrom the Sub-Committee because of his dissatisfaction

with the manner of appointment of the three ordinarymembers from Seanad ireann to the Houses of theOireachtas Commission. Senator Ryan was a valuedand committed member of the Sub-Committee. Hemade a significant contribution to the review and theSub-Committee regrets his decision to resign.

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CHAPTER 2HISTORICAL BACKGROUND, COMPOSITION AND

ELECTORAL SYSTEM OF SEANAD IREANN

Historical BackgroundAlthough bicameralism has almost always been anintrinsic part of the Irish parliamentary tradition, the value

of having an Irish upper house has been a matter ofcontinuing and sometimes vigorous debate.



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It is common for federal states such as the USA,Canada or Germany to have an upper house of thelegislature. In a federal system, the upper house iswhere the interests of the constituent states arebalanced. Ireland, however, is a unitary not a federalstate. And under a unitary system of government,there are two main arguments in favour of having anupper house:

1. It provides representation for political intereststhat may not be adequately represented in thelower house;

2. It acts as a check and balance on the lowerhouse; in particular, it provides a forum foradditional deliberation on, and a final review of,legislation before enactment.

The representational argument, and in particular therepresentation of non-Catholics, was central to theestablishment of the first Seanad under the Irish FreeState Constitution of 1922. The political compositionof the first Seanad contrasted sharply with that of theDil. Of its initial members, only 36 out of 60 wereCatholics, and the landed gentry and the ex-unionistcommunity were strongly represented. However thisdistinctive composition and the slow pace withwhich it changed planted the seeds for seriousconflict with the lower house.

Disagreements between the Houses were of littlepolitical significance up to 1932, but after thatclashes with the Dil became more serious.Legislation to remove the oath of allegiance wasstrongly opposed by the Seanad and its enactmentwas delayed for almost a year. In addition, theSeanad rejected Bills to extend the local governmentfranchise to all persons over the age of 21 years, toprohibit the wearing of military uniforms, and toabolish university representation in the Dil. Thisseries of events led to the abolition of the Seanad in

May 1936 and a brief period of unicameralism inIreland.

The new Constitution of 1937 provided for areversion to a bicameral legislature. The second

chamber was based, in large part, on the thenpopular idea, supported by Catholic social thinking,of vocational representation. The new Seanad was tohave sixty members eleven named directly by theTaoiseach, six elected from university constituencies,and forty-three from five vocational panels.Although a number of relatively minor changes havetaken place over the years in relation to thecomposition of the electorate and the nominationprocess, the present day Seanad strongly resemblesthe 1937 model.

Composition of Seanad ireannArticle 18 of the Constitution provides for theformation of Seanad ireann, with 60 members,comprising:

- 49 elected members - 43 elected from fivepanels of candidates having knowledge andpractical experience of certain interests andservices and six members elected by the NationalUniversity of Ireland (3) and the University of

Dublin (3); and

- 11 nominated members all are nominated bythe Taoiseach (with their prior consent).

C H A P T E R 2 :H I S T O R I C A L B A C K G R O U N D , C O M P O S I T I O NA N D E L E C T O R A L S Y S T E M O F S E A N A D I R E A N N



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The Electoral Systemof Seanad ireann

THE SEANAD GENERAL ELECTIONThe Constitution provides that a Seanad GeneralElection must take place not later than ninety daysafter the dissolution of Dil ireann, and that everyelection shall be held using the system ofproportional representation by means of the singletransferable vote, and by secret postal ballot. Alldetailed aspects of Seanad elections, including thenomination process, are left for regulation bylegislation.

STATUTORY FRAMEWORK

The statutory framework for election to the Seanad isset out in the Seanad Electoral (University Members)Act 1937, the Seanad Electoral (Panel Members) Act1947 and the Seanad Electoral (Panel Members) Act1954. Minor changes to these acts were made bythe Electoral Act 1992, the Electoral Act 1997 andthe Electoral (Amendment) Act 2001.

ELIGIBILITY FOR MEMBERSHIPOF THE SEANAD

A person eligible for membership of the Seanad mustbe a citizen of Ireland and be twenty-one years ofage or over. The Constitution provides that thePresident of Ireland, the Comptroller and AuditorGeneral and any judge may not be a member ofeither House of the Oireachtas and that no personmay be at the same time a member of both Houses.The Electoral Act 1992 details certain occupationsthat are incompatible with membership of the

Seanad, for example, civil servants, whole-timemembers of the Defence Forces and Garda. The Actalso provides that certain persons be disqualifiedfrom being elected to or sitting at either House, forexample, an undischarged bankrupt, a person ofunsound mind, a person imprisoned for a period oftime and a person found guilty of corruption inrelation to elections.

ELECTION OF PANEL MEMBERS

Before each General Election five panels are formedof candidates having knowledge and practicalexperience of the following interests and servicesrespectively:

i. Cultural and Educational Panel Nationallanguage and culture, literature, art, education,law and medicine;

ii. Agriculture Panel Agriculture and allied interestsand fisheries;

iii. Labour Panel Labour, whether organised orunorganised;

iv. Industrial and Commercial Panel Industry andcommerce, including banking, finance,

accountancy, engineering and architecture; and

v. Administrative Panel Public administrative andsocial services, including voluntary socialactivities.

Each panel is divided into two sub-panels: onecomposed of candidates nominated by at least fourmembers of the Oireachtas (the Oireachtas sub-panel) and another composed of candidatesnominated by registered groups in the spheres ofculture and education, agriculture, labour, industry

and commerce, and public administration and social

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services (the nominating bodies sub-panel).In total 43 members are elected from the five panels.

THE REGISTER OFNOMINATING BODIES

The Seanad Returning Officer, who is also the Clerkof the Seanad, is responsible for the maintenanceand the annual revision of a register of bodiesentitled to nominate candidates to the panels. To beeligible for registration as a nominating body anorganisation must be concerned mainly with or berepresentative of the interests and services of one orother of the panels, however a body cannot beregistered in respect of more than one panel.

Organisations that are mainly profit-making are noteligible for registration nor are those whoseemployees are mainly in the employment of the stateor local authorities.

Each nominating body registered for a panel maypropose for nomination a fixed number of people.

CONSTITUTION OF PANELS

The Constitution provides that not more than eleven

and not less than five members can be elected fromany one panel. The legislation provides for thefollowing specific arrangements:

i. Cultural and Educational Panel: five members ofthe Seanad are elected (at least two must beelected from each sub-panel);

ii. Agriculture Panel: eleven members of the Seanadare elected (at least four must be elected fromeach sub-panel);

iii. Labour Panel: eleven members of the Seanad areelected (at least four must be elected from eachsub-panel);

iv. Industrial and Commercial Panel: nine members

of the Seanad are elected (at least three must beelected from each sub-panel); and

v. Administrative Panel: seven members of theSeanad are elected (at least three must be electedfrom each sub-panel).

THE COMPLETION OF PANELS

After the close of nominations from the nominatingbodies and Members of the Houses of the

Oireachtas, the Seanad Returning Officer, in thepresence of a High Court judge, holds a sittingreferred to as the completion of the panels, the mainpurpose being to ensure that each candidate isnominated properly and qualified in respect of theappropriate panel. At this sitting the Returning Officergroups the provisional sub-panels into five groups a provisional Oireachtas sub-panel and a provisionalnominating bodies sub-panel in respect of eachpanel and examines the validity of each nominationpaper and deletes any entry he/she decides to beinvalid. The Returning Officer then examines thenames remaining on the sub-panels and deletesthose whom he/she feels are not qualified to be onthe panel. When the panels have been completedand prepared they are published and at this pointthey are not open to review by any court.

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THE ELECTORAL REGISTER

The electorate for an election of panel members tothe Seanad consists of -

- The members of the incoming Dil;- The members of the outgoing Seanad; and

- The members of the Councils of Counties and theCity/Borough Councils.

Each elector has only one vote for each panel. It isthe responsibility of the Seanad Returning Officer toprepare an electoral roll containing the names,addresses and descriptions of every member of theelectorate.

ELECTION OF UNIVERSITY MEMBERS

The Seanad Electoral (University Members) Act 1937lays down the procedure for the election of themembers from the universities. The constituencies forthe election of university members to the Seanad arethe National University of Ireland and the Universityof Dublin (Trinity College). Each elects threemembers. The other universities and institutions ofhigher education are not represented in the Seanadat present. The Seventh Amendment of theConstitution made provision for the extension of thefranchise to other institutions of higher education inthe State, but no legislation has been put in place toimplement this.

The electorate for an election of university membersto the Seanad consists of every citizen of Ireland whohas reached the age of eighteen years and who hasreceived a degree, other than an honorary degree,from the university concerned. The electoral roll ismaintained and up-dated by the universityconcerned. Candidates must be nominated by two

registered electors for the university and eight otherregistered electors for the university concerned mustassent to the nomination. However candidates neednot be graduates of the university or be connected toit in any way.

The elections are conducted in accordance with theprinciple of proportional representation, by means ofthe single transferable vote and by secret postalballot.

BYE-ELECTIONS

In the event of the death, resignation ordisqualification of a member of the Seanad, thevacancy is filled by a bye-election. The procedure ata bye-election for elected and nominated members isas follows:

- In the case of a vacancy among the electedmembers, the Clerk by direction of the Seanadmust notify the Minister for the Environment andLocal Government in writing that a vacancy exists.The method of election and subsequent procedureis similar to that of a general election except thatthe electorate is restricted to the members of theSeanad and the Dil;

- In the case of a vacancy among universitymembers the procedure at a bye-election is thesame as that at a general election of universitymembers; and

- In the case of a vacancy among nominatedmembers, the Chairman must notify the Taoiseachin writing of the vacancy. The Taoiseach will thennominate a person to fill the vacancy.

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TAOISEACHS NOMINEES

Eleven members are nominated to the Seanaddirectly by the Taoiseach. The right to nominate is inthe sole discretion of the Taoiseach.

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CHAPTER 3DEFINING THE PROBLEM

IntroductionDuring the course of its review, the Sub-Committeeexamined the second chambers in seven different

countries - Australia, Canada, France, Germany, Italy,Spain and the United Kingdom. In many cases therewere criticisms of the upper houses concerned,combined with calls for reform, mainly of theircomposition. In a number of instances programmes ofparliamentary reform were actually underway.

What this clearly demonstrates is that the Seanad isnot alone in terms of the problems that it faces. Itmay be unique in terms of its vocational electoralsystem, but it is grappling with the same types ofissues as other second chambers throughout the

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The ProblemEssentially, as previous reports and the public hearings onSeanad Reform have underlined, the Seanad is widelyseen as having two main problems:

i It has no distinctive role in the Irish political system;and

ii Its arcane and outdated system of nomination andelection diminishes Senators public legitimacy.

The Seanad has no distinctive role in the Irish politicalsystem because, firstly, it is totally subordinate to Dilireann. It is dissolved every time there is a Dil generalelection, and the legislative process set out in theConstitution gives the Dil the final say in everything.Therefore, in the eyes of many members of the public theSeanad is seen as weak, ineffective and of questionablevalue.

Added to these difficulties is the fact that the Seanad isdominated by the Government. To a large extent thishappens because of the system of Taoiseachs nominees.Almost one senator in five is nominated by the Taoiseach,which in relative terms is equivalent to thirty nominatedTDs in the Dil. Therefore the Seanads inclination andcapacity to act as an effective check on the Governmentis severely limited.

If the Seanads unclear role in the political system is one

major problem, the other is its electoral system. Thevocational system tends mainly to produce senators withpolitical backgrounds rather than vocational backgrounds.This is because while the nominating bodies thatnominate some of the candidates are vocational incharacter, the electorate is political and the bodiesthemselves do not form part of it. Therefore, unless acandidate comes from a political background, he/she haspractically no chance of getting elected.

Problems also exist with the nominating bodies. Many ofthese are now of questionable relevance to contemporary

Ireland and it is more or less certain that if the register of

nominating bodies were to be drawn up from scratchtomorrow, it would have a completely differentcomposition.

What is absolutely undeniable is that there is a major gap

between the average citizen and Seanad ireann. Thesimple reason for this is that most Irish people do nothave a vote in Seanad Elections. The electorate for mostSeanad seats currently numbers around 1,000 peopleand comprises county councillors, county boroughcouncillors, outgoing Senators, and incoming Deputies.As long as the majority of citizens are excluded from theSeanads electorate, it will lack the essential ingredient ofpublic legitimacy and the gap between it and the averagecitizen will remain.

Another issue of concern is university representation. This

is open to criticism because it confers a basic democraticright - the right to vote - on a select group of people solelyon the basis of educational attainment. The only citizens,apart from serving politicians, with a right to vote inSeanad elections are those with a degree from theNational University of Ireland or Trinity College Dublindespite the fact that a constitutional amendment waspassed in 1979 to allow the extension of the franchise toother institutions of higher education in the State. Even ifthe principle of university representation is accepted - andthere are strong arguments in favour of it (namely, thequality of university senators, their vocational diversity,

and the Northern Ireland element of the Seanad election)- the current arrangements exclude the graduates of thevast majority of third-level institutions.

Ultimately, it is relatively easy to define the problems ofSeanad ireann, but it is much more difficult to getconsensus on the most effective and equitable solutions.Different people have different visions of a reformedSeanad. However, at the very least, the objectives ofreform must be to design an electoral system that willcommand widespread public respect and a role for theSeanad that will either complement or be independent of

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CHAPTER 4REVIEW OF THE EVIDENCE ON THE FUTURE FUNCTIONS

AND COMPOSITION OF SEANAD IREANN SUBMITTEDTO THE SUB-COMMITTEE

As part of its review of the future functions and composition of Seanad ireann, the Sub-Committee on Seanad Reform invited the public to make written and oral submissions.The Sub-Committee received 161 written submissions and after examining these invited

52 organisations and individuals to attend public hearings to expand further on theirwritten evidence (see Appendices B and C). The hearings took place between the 16September and 19 September 2003 in the Seanad Chamber and witnesses included theTaoiseach, a former Taoiseach, political parties, nominating bodies, third-level educationinterests, groups representing minorities, and members of the public.

This section presents a synopsis of the principal issues that emerged from the oral andwritten submissions received by the Sub-Committee. Transcripts of the hearings andcopies of the written submissions can be found on the Houses of the Oireachtas websitewww.oireachtas.ie.



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REFORM OF THE SEANADSEXISTING POWERS AND FUNCTIONS

Should the Seanad act as a Serious

Check on the Activities of Government?While all of the submissions made suggestions forreform, very few suggested that the Seanad should begiven the power to act as a serious check on theactivities of the government. One exception was thesubmission by the Workers Party, which argued thatthe Seanads powers should be on a par with theDil. Several submissions recommended that theSeanad should have the right to question Ministers.Mr. Noel Whelans submission stressed the need tostrengthen both legislative houses vis vis thegovernment, but he saw this as being achieved bygiving the Seanad a more legitimate composition ratherthan by changing its powers.

Either explicitly or implicitly, virtually all submissionsaccepted that a revised role for the Seanad should notbring it into conflict with the government.

What should the Seanads Rolebe in the Legislative Process?With a few exceptions, the submissions did not makerecommendations to give the Seanad more formal

powers over the legislative process. The exceptionswere the submissions of the Workers Party, and theChristian Solidarity Party (which recommended anincreased power for the Seanad over money bills), andMr. Gerard Carton, who recommended that the powerto delay ordinary legislation be increased from 90 to270 days.

Many submissions implicitly subscribed to the pointthat giving the Seanad a more legitimate compositionwas the best way to increase its de facto power.

Quite a number of submissions dealt with proceduresfor processing legislation and all of these had the effectof involving the Seanad earlier in the legislativeprocess. The Fianna Fil submission, for example,suggested the role of the Seanad be further enhancedin initiating debate on legislation first introduced in theSeanad. This submission also argued that ministersshould be willing to accept reasonable and well-argued amendments from the Seanad which impliesin practice that such amendments emerge early in thelegislative process. The Sinn Fin submissionsuggested that all legislation be published in the Diland debated in the Seanad before Dil debates and thecommittee and report stages. Several submissionssuggested a place for Seanad scrutiny of legislation atthe drafting stage.

What was striking during the oral presentations andquestioning was the extent to which the groupsinvolved really valued being asked for their opinion bythe Seanad. Also striking was the considerable thoughtand care many groups and individuals clearly put intopreparing their detailed submissions. Many groupsmade the point during question and answer sessionsthat legislation and policy-making would beconsiderably improved by introducing much moreconsultation of this type, and that the Seanad couldfulfil a valuable role in this.

What Role Should Senators havein the Oireachtas Committee System?The role of Senators in the Oireachtas Committeesystem was one of the main thrusts of the Fine Gaelsubmission. Fine Gael proposed a standing committeefor future strategic policy and future needs, aCommittee for the Future. The functions of thisCommittee would be to

- Promote dialogue between the Oireachtas and theExecutive on future challenges;

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- Require the Executive to produce reports on futureprospects;

- Provide a forum for discussing long-term strategicissues; and

- Publish an annual report.

While the Green Party and Institute of IndustrialEngineers submissions suggested that the Seanad haveits own committee system, it was not made clear howthis would interact with the existing system of jointOireachtas committees. The Christian Solidarity Partymade a rather general proposal for a policycommittee.

Taken as a whole, the submissions did not provide a

consensus view or striking new insight on the role ofSenators in the committee system.

THE SEANAD AND THE CABINET

The Green Party recommended that the Seanadprovide up to five cabinet ministers, as well as anumber of ministers of state. The Fianna Filsubmission recommended that the Leader of theSeanad be designated a minister of state with right ofattendance at cabinet. The submissions did not reveal

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Addition of New Powersand Functions

What Role Should the Seanad Have

in European Union affairs?There was virtual unanimity in the submissions infavour of giving the Seanad an enhanced role in thereview of EU affairs, both in relation to general policyand more specifically in relation to legislation. This wasthe point most heavily stressed by the Taoiseach in hispresentation and it was one of the widely supportedarguments to come out of the public consultation.There were, however, relatively few concretesuggestions as to how such a role, described variouslyin submissions as monitoring, scrutiny oroversight, might be achieved in practice.

Use of the Seanad as an informal forum ofaccountability in Ireland for Irish MEPs was widelysupported in many submissions, which often alsoreferred to the Irish Commissioner. This is a matter ofnear consensus among those who considered it. Fewsubmissions proposed that MEPs be made formalmembers of the Seanad, and some opposed this.

Should the Seanad Have a Rolein the Scrutiny of Public Appointments?

Two submissions dealt explicitly with giving the Seanada role in the scrutiny of public appointments and bothwere in favour.

Should the Seanad Have a Rolein the Review of Public Policy?There was broad consensus in the submissions that therole of the Seanad in reviewing public policy should beenhanced. Submissions included a considerable variety ofspecific suggestions:

- The annual reports of state agencies should be laidbefore the Seanad;

- The Seanad should have a role in social partnershiptalks;

- The Seanad should set up a committee to monitorand review social partnership agreements; and

- The Seanad should review the work of the North-South Implementation Bodies.

There was also a widespread perception in thesubmissions that the social partnership system needsto be given a more democratic basis.




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Composition of the Seanad

Should the composition of the Seanad berenewed whenever there is a Dil GeneralElection?Quite a few submissions, including four of the mainpolitical parties, recommended that a system of rollingrenewal of Seanad ireann be introduced, which wouldinevitably decouple Dil and Seanad elections. Nonemade an explicit recommendation that the existingsystem, mandating a complete renewal of the Seanadelections within 90 days of Dil election, be retained,though this was clearly implicit in some. The ProgressiveDemocrats (PDs) and Green Party explicitly proposed aSeanad elected on the same day as local councillors andMEPs. Under the PD submission, this would be

refreshed by an influx of Taoiseachs nominees aftereach Dil election.

Other submissions recommending staggered Dil andSeanad elections came from Fine Gael, the LabourParty, the Law Society, Mr. Barry Ward and Mr. GerardCarton. Dr Kulharni recommended a seven-yearSeanad term coinciding with Presidential elections,with a two-term limit for Senators. A small number ofsubmissions proposed that Dil and Seanad electionsbe held on the same day, to avoid the situation inwhich candidates who had lost Dil elections would

then contest Seanad elections. There was considerablesupport in the submissions for Seanad elections to betimed to coincide with local council and EuropeanParliament elections.

Should the System of Vocational Panelsbe reformed?The bulk of the submissions recommended either theradical reform or the complete abolition of the panel

system. Those submissions least inclined to reformtended to come from existing nominating bodies, theuniversities currently represented in the Seanad andthe main government party.

One common suggested basis for reform was to bringpanels into line with the groupings recognised undersocial partnership. Another common basis forsuggested reform was the inclusion of a set of currentlyunder-represented or excluded groups (such as youngpeople, women, people with disabilities, travellers).Ms. Yvonne Galligan and Ms. Eils Ward recommended

the temporary imposition of gender quotas on allSeanad panel and university elections to remedy thecurrent under-representation of women. The IrishTraveller Movement recommended the reservation ofone Seanad seat for a representative of the travellingcommunity. The Pavee Point Travellers Centrerecommended the reservation of seats for minoritygroups. Many different suggestions for new panels orvocational interests to be represented were made bythose recommending reform of the panel system.

Should the System of Nominating Bodiesbe reformed?One of the most complex and confusing issuesdiscussed in the submissions concerned therelationship between the vocational panels and thenominating bodies. A number of nominating bodiesexpressed frustration that they nominate candidates buthave no vote, while what is in effect an electorate ofserving party politicians has no nomination power.Thus non-voting, non-political nominating bodies aretypically asked to nominate politicians as candidatesfor election, by other politicians, to the upper house.



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No single public submission explicitly supported thecurrent system under which outgoing senators andincoming TDs form part of the electorate in panelelections, although such support was implicit in theFianna Fil submission. Many of those making thesubmissions appeared to be under the impressionthat only county councillors currently vote in panelelections, and many of these submissions wereopposed to Seanad elections being decided bycounty councillors. Others mostly from the currentpolitical establishment supported this, and theAssociation of Municipal Authorities of Irelandrecommended its extension to all local publicrepresentatives.

Two possibilities emerged for serious consideration ifthe panel/nominating body system is to be retained insome shape or form:

- The vocational nominating bodies shouldnominate only candidates who are their ownmembers or affiliates; and

- The electorate for the panel elections should bebroadened to include members or affiliates of thenominating bodies themselves. However, noworkable proposal was put forward about how toput this into practice. Advocates of such a systemtended to conclude that it must be possible to find

a way to do this.

Should the Panel Electorate be extended?Mr. Noel Whelans submission suggested a way toretain the panel system while at the same time havingpopular elections with universal suffrage. Each member

of the general electorate would select 2-3 panels forwhich they were vocationally qualified. However, noadministratively feasible solution was offered underquestioning to the problem of how millions of voterswould be deemed, by virtue of their socio-economicsituation, to be qualified to vote for particular panels. Asimilar proposal was put forward by Mr. Ciarn Tolandet al., who proposed a radically revised set of issueand interest panels, with every member of the masselectorate selecting one panel for which they would bea registered voter, with no need for any voter to qualifyto vote for any particular panel.

Should Direct Popular Elections Outsidethe Panel System be introduced?There was considerable support for increasing thenumber of directly elected senators, typically to regionalor national constituencies. Some submissions arguedfor having no indirectly elected senators, some for amix of direct and indirect election. Of the politicalparties, only Fianna Fil and the Christian SolidarityParty did not argue for the introduction of some form ofdirect election. Supporters of introducing direct

elections to the Seanad included Fine Gael, the LabourParty, the Progressive Democrats, the Green Party, SinnFin and the Workers Party. The PDs, the Green Party,Sinn Fin and the Workers Party all argued againstany form of indirect election by county councillors. FineGael, Labour and the SDLP argued for a system inwhich some seats would be directly, and someindirectly, elected.

Under questioning, the Fine Gael position saw a mixof indirect election as a pragmatic first step along theroute to full direct election. While many nominating




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bodies tended to favour the current system of indirectelections of which they are an integral part, others such as the Law Society, the Institute of Auctioneersand Valuers of Ireland (IAVI) and the Association ofSecondary Teachers of Ireland (ASTI) favoured ashift to direct elections. The universities were for themost part concerned with extending the system ofdirect elections to university seats and did notcomment on direct elections beyond these. Individualsubmissions were overwhelmingly in favour of at leastan element of direct elections.

There was thus broad-based support for introducing anelement of direct popular election to the Seanad. Theargument was frequently made that this wouldincrease ordinary citizens sense of ownership of theSeanad. No principled argument was advanced in thesubmissions against giving ordinary citizens a vote inSeanad elections. Arguments against doing this, as inthe Fianna Fil oral submission, were of the pragmaticvariety.

How Should University Representation bedealt with in the Future?University seats generated a lot of interest in the publicconsultation. There was effectively no supportwhatsoever for retaining the current system thatconfines university representation to Trinity CollegeDublin (TCD) and the National University of Ireland(NUI). Even the current beneficiaries of the status quo,NUI and TCD, agreed under questioning that, ifuniversity seats are to be retained, then universityrepresentation should be extended to include allinstitutions involved in higher education, includingInstitutes of Technology provided that the number ofuniversity seats was increased to accommodate these.

There was thus complete consensus among thosesupporting the continuation of university seats that, ifuniversity seats are retained, then the franchise should

be extended to everyone with a degree levelqualification from a recognised third-level institution inthe State. There was disagreement on where, precisely,to draw the line at this extension and how to divide theset of university seats into constituencies.

There was however no consensus on whetheruniversity seats should be retained at all: manysubmissions put forward vigorous arguments for theirabolition in the twenty-first century. Universityrepresentatives, when questioned as to why peoplewith degrees should have a vote in Seanad electionswhile people without degrees should be denied a vote,did not come up with clear or convincing arguments,and the personal view of the President of University ofLimerick was that the system is elitist.

No principled argument was put forward in thesubmissions as to why some Irish citizens should havea vote in Seanad elections that is denied to others.Arguments in favour of the present system were eithervocational (universities need a voice in the system) orpragmatic (university senators tend to be the only onesoutside the party system and have made adistinguished contribution).



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Should Residents of Northern Irelandand Irish Emigrants be representedin Seanad ireann?Essentially three views were expressed on the

representation of people from Northern Ireland and/oremigrants:

- It is inappropriate that people not resident in theState should be represented in an Irish legislature;

- Representation is best achieved by making morespecific the criteria for Taoiseachs nominations;and

- Some form of postal ballot should be introducedfor Irish citizens living outside the Republic ofIreland, typically to designated constituencies for

Northern Ireland and emigrants (this point wasvery eloquently made in relation to emigrants bythe former Taoiseach, Deputy John Bruton).

The SDLP recommended a different system involving indirect election of Northern Irelandrepresentatives by elected representatives. TrinityCollege made the point that the University of Dublinconstituency already provides a voting opportunity formany Northern Ireland residents, one known to beused by unionists.

A private submission by Dr W.J. Smyth arguedagainst votes for emigrants on the basis of theadministrative problems generated by the numberand diversity of Irish emigrants dispersed around theworld, and the fact that many of these are secondgeneration Irish who could be qualified to vote onlyby making the pool of potential voters impossiblylarge. During questioning on the University ofLimerick presentation, the Chancellor, Mr SeanDonlon, argued that from his diplomatic experience itwould be very difficult to use Irish Embassiesoverseas to compile registers of emigrant voters.

Recommendations for a postal ballot for emigrants orNorthern Ireland voters were rarely explicit abouthow this would be realised administratively, althoughthe point was made that, since the Seanad isunlikely to be involved in government formation, aSeanad election does not operate under tight timeconstraints. Typical responses under questioningwere that in this day and age, surely some waycould be found to do this. Those recommendingpostal balloting were not able, under questioning, togive firm answers to the matter of how to guard in anadministratively feasible way against malpractice the typical explicit or implicit response being that, fora few seats in a relatively powerless chamber, thiswould not have too serious consequences. TrinityCollege Dublin pointed out the difficulties faced in

delivering postal ballots by registered mail, sinceregistered letters are delivered during working hourswhen most working voters are not at home to signfor them. It was noted that without registereddelivery, however, the possibilities for malpracticeincrease.

The Fianna Fil submission recommended anadditional five Senators, all nominated by theTaoiseach, four on the recommendation of theleaders of the main parties in Northern Ireland although some of the Northern parties when

questioned on this argued that it might presentproblems for the leaders of unionist parties tonominate people to Seanad ireann. Many andvaried submissions suggested that the Taoiseachsexisting nomination powers could be constrainedsomewhat to make space for such nominations.

In general, while there was probably generalagreement on the desirability of finding some form ofSeanad representation for Northern Ireland residentsand emigrant groups, with some caveats on therepresentation without taxation issue, there was no

clear sense of how this might be achieved in a

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realistic and workable way, other than by using thesystem of Taoiseachs nominations.

How Many Seats Should there

be in a Reformed Seanad?The bulk of submissions seemed to take it as giventhat the size of the Seanad would remain the same.None recommended a reduction in size. Somerecommended an increase, to allow a broadening ofthe basis of representation while preserving existinginterests. The Taoiseach, when questioned, acceptedthat the size of the Seanad would need to increase ifprovision was made for emigrants and residents ofNorthern Ireland.




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CHAPTER 5FINDINGS AND RECOMMENDATIONS

IntroductionThe Sub-Committee here sets out its findings on key aspects of Seanad reform and itsrecommendations, flowing from these findings, on the Seanads future composition and

functions.These findings and recommendations have been informed by:

- Analysis of eleven previous reports on the reform of Seanad ireann;

- An extensive public consultation process undertaken by the Sub-Committee, during which161 written submissions were received and 52 groups and individuals attended publichearings;

- Research conducted on the functions and composition of upper houses in six otherjurisdictions; and

- The knowledge, experience, and political judgement of the members of the Sub-Committee.



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Core ObjectiveThe Sub-Committee saw its core objective as to definea viable and creative role for the Seanad in the 21stcentury believing that abolition of the Seanad should

only be considered if a viable and creative role for itcannot be found. In this context, it is striking that veryfew public submissions called for the abolition of theSeanad. The vast majority wished to see the upperhouse reformed, to allow it to make a more meaningfulcontribution to the political process in Ireland.

General Principles underpinning

the Reform of Seanad ireannThe Sub-Committee felt it important to establish basicprinciples for a reformed Seanad before moving on tothe details of particular reforms that might be needed.These principles lie at the root of all the Sub-Committees thinking and can be applied whenconsidering various options for Seanad reform.

Taking a broad overview of upper houses in a rangeof different countries, Dr. Meg Russell, a seniorresearch fellow in University College London andsomeone who has worked extensively on the reform

of upper houses in a range of different contexts, hasset out three principles that can clearly be adapted tothe reform of Seanad ireann:

- Popular legitimacy a reformed Seanad must beseen by Irish citizens as having a legitimate voiceand role in the political process;

- Adequate powers and functions a reformedSeanad should have distinct and adequate powersand functions and make a discernible contributionto the parliamentary process; and

- Distinct composition a reformed Seanad shouldbe distinct from Dil ireann in terms of itscomposition, and its electoral process should bedesigned accordingly.

Previous discussions of Seanad reform in Ireland,combined with public submissions made to the Sub-Committee, make it clear that there is a further set ofgeneral principles that set the boundaries for reformof the upper house in the specific context of Ireland.

- A reformed Seanad will inevitably be a political bodysince it must ultimately discharge political functions;

- The Seanad should be a deliberative body thattakes a different perspective from the Dil andwhich complements the Dil in terms of the overall

workings and effectiveness of the Houses of theOireachtas. In this regard, a reformed Seanadshould be part of a newly defined division oflabour within the Houses of the Oireachtas;

- The Seanad should primarily be a House ofinfluence and persuasion. In other words, it shouldseek to convince by force of argument and logicrather than compel by weight of numbers andformal powers. What is clear from the publicconsultation process is that there is no desire toreform the Seanad in a way that brings it into head-

on confrontation with the Dil;

Having established these broad principles, the Sub-Committee went on to consider a series of fundamentalquestions on the future composition and functions ofSeanad ireann.

On the future composition of the Seanad, thesequestions relate to: the vocational panel system; directand indirect elections; university representation; theTaoiseachs nominees; and the most appropriate way ofdealing with representation for emigrants and people

from Northern Ireland.

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On the future functions of the Seanad, these questionsrelate to: the legislative process; EU affairs;parliamentary scrutiny and accountability; and thereview of public policy.

Future Compositionof Seanad ireannCan the Vocational Panel Systembe reformed?The core question on the composition of Seanadireann concerns the system of vocational panels, andwhether this can be reformed in a way that reflects theeconomic and social life of 21st century Ireland. If itcan be reformed, what vocational interests should now

be represented and how should they be weighted? If itcannot be reformed, what system of representationshould replace it?

The concept of vocational representation is a reflectionof Catholic social thinking of the 1930s and, inparticular, the philosophy expressed in the papalencyclical Quadragesimo Anno written by Pope Pius XIin 1931. This stressed, as an alternative to classdivision, the coming together of major social interests.To quote from the encyclical:

True and genuine social order demands that thevarious members of a society be joined together bysome firm bond. Such a bond of union is providedboth by the production of goods or the rendering ofservices in which employers and employees of oneand the same vocational group collaborate; and bythe common good which all such groups shouldunite to promote, each in its own sphere, withfriendly harmony.

The 1937 Constitution identified five groups ofinterests and services that were to be represented -

National Language and Culture, Literature, Art andEducation; Agriculture and Fisheries; Labour; Industryand Commerce; and Public Administration. Each ofthese was to be represented by a minimum of five anda maximum of eleven senators; and those elected wererequired to have knowledge and practical experienceof the sector with which they were associated.

Problems with the implementation of the vocationalsystem became apparent soon after the first Seanadgeneral election and have continued to the present day.The first and most significant problem is that thisnominally vocational system does not in fact producesenators with strong vocational backgrounds. Thishappens because the vocational bodies that nominatecandidates have no vote in Seanad elections, while theactual Seanad electorate is composed entirely ofpoliticians. In other words, non-voting, non-politicalnominating bodies are typically asked to nominatepoliticians as candidates for election, by otherpoliticians, to the Seanad. The Sub-Committee hasfound no international comparison where those whonominate candidates for election cannot vote in theelection that follows.

Added to this is the fact that, as a result of the HighCourt judgement in 1969 in the case ofOrmonde andDolan v. Mac Gabhann and the Attorney General, acandidate does not have to have any specialknowledge and practical experience in a particularvocational area in order to run for the relevant panel.This has resulted in a situation where the decision of acandidate to run on a particular panel is often based,not on his or her vocational suitability, but on thepragmatic likelihood of being elected via that panel.

The second problem with the vocational system relatesto the nominating bodies, the bodies that provide theonly vocational input into the process of choosingsenators. Even a casual inspection of the list ofnominating bodies will show that this list includes a



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very diverse collection of bodies, of widely variablevigour and relevance to modern Ireland. It seemsextremely unlikely that anyone, on being shown thelist, would enthusiastically agree that this was just theright list of bodies to nominate candidates for electionto the Irish Upper House. It is notable, furthermore,that of the 92 bodies on the register, only 27 madesubmissions to the Sub-Committee, despite two writtenrequests to do so.

It was overwhelmingly clear from the publicsubmissions that, if the panel system is to be retained,it needs radical overhaul. A minimalist approachwould be to change the weightings of existing panels toreflect the huge changes in Irish society that havetaken place since 1937. A somewhat more radicalapproach would involve leaving the panel system intactbut reforming the system of nominating bodies. Themost radical approach would involve identifying anddefining a new set of panels, together with newnominating procedures and a new electoral system.Each of these options is considered below.

Change Relative Panel WeightingsThe Constitution currently specifies a minimum of fiveand a maximum of eleven candidates to be electedfrom each panel. Within this range, a certain amount

of re-balancing of the panels could be done by way ofprimary legislation.

New weightings could more accurately reflect thecurrent size and importance of the five vocational areasin contemporary Irish society, provided agreement onthis could be achieved, which might in practice bequite difficult. However, this would not resolve thefundamental problems of the panel system. It wouldremain the case that non-voting, non-politicalnominating bodies would nominate politicians ascandidates and that the system would produce political

senators. In addition, such minor reform would notprovide for the representation of new vocationalinterests. Merely rebalancing existing panels, therefore,would be tantamount to maintaining the status quo.

Reform the System of Nominating BodiesCurrently, nominating bodies nominate candidates forthe Seanad but cannot vote. This is a highly unusualsituation since normally those who may nominate mayalso vote, and those who may vote may also nominate.The Sub-Committee considered two ways to reform thenominating bodies system.

The first would be to stipulate that nominating bodiescould nominate only candidates who are their own

members or affiliates. This would be in the spirit ofvocational representation and would guaranteecandidates with appropriate experience in thevocational area concerned. This appears to happenalready in the case of some nominating bodies, butmany other nominating bodies clearly respondfavourably to requests from politicians to endorse theircandidatures for Seanad elections. Crucially, pastexperience shows that, unless the nomination only ofpractising members is mandated for all nominatingbodies, candidates from political backgrounds will forthe most part continue to fare much better than

candidates from vocational backgrounds whenappealing for support to the current Seanad electorate.

The second way to reform the system would be towiden the Seanads panel electorate to include themembers and affiliates of nominating bodies. However,very significant problems would have to be overcome inorder to put this proposal into practice. There would bea need to agree a list of approved nominating bodies.There would need to be definitive lists of the membersand affiliates of these bodies. And there would need tobe a system for amending all of these lists.

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These matters would be extremely important, since thelists of nominating bodies and their members woulddefine the electorate for elections to the Seanad. Issueswould also arise as to who would be responsible forbuilding and maintaining a reliable register of electorsthat would withstand legal challenge, of who would bethe returning officers, of voting mechanisms (givenproblems with large-scale postal voting), of what to doabout people who accumulated multiple votes by beingaffiliated to several nominating bodies, and so on.Added to these issues is the fact that to ensure theintegrity of the election result, public electoral lawwould have to intrude into the inner workings of thenominating bodies something with very considerableimplications.

Taken together, these problems suggest that reformingthe current system of nominating bodies would at thevery least be very difficult and, in the final analysis,could well be impossible.

Reform the Definition of VocationalPanels and widen the Panel Electorate toinclude all VotersVarious proposals were made to the Sub-Committee tocombine a major redefinition of the set of vocational

panels with a radical extension of the panel electorateto include all Irish voters.

On redefining the panels, one common suggestion wasto bring these into line with the groupings currentlyrecognised under the system of social partnership.Another common suggestion was to include a set ofcurrently under-represented or excluded groups in areformed set of panels (e.g. young people, women,people with a disability, Travellers). Other suggestionswere for panels for Northern Ireland, Equality andHuman Rights, Families, Business, Labour, the Arts,

Science and Technology, and Social Affairs. It was also

suggested that gender quotas should be imposed on thepanels on a temporary basis to remedy the currentunder-representation of women.

The very variety of the suggestions that were made

highlights a simple but critical problem. It seems veryunlikely that broad political consensus could beachieved within a reasonable timescale on the natureand weighting of vocational interests in a new panelsystem. Failing this, proposals for reform of Seanadireann will founder as a result of protracteddisagreements over what a reformed panel systemshould look like.

On the issue of extending the franchise if some form ofnew panel system could be agreed - a majorassumption in itself - there would then be a need to

specify how people would vote for the new panels. Thetwo logical possibilities are that a voter would eitherhave to register for particular panels, or would have aright to vote for every panel. If the decision was to havevoters register for particular panels with which they hadsome vocational affinity, the problem would be howmillions of voters would be deemed qualified to vote inparticular panels by virtue of their socio-economicsituation. A further problem would be that some voterswould inevitably be eligible to vote in more panels thanother voters, either forcing arbitrary choices orbreaching the principle of one person, one vote. If onthe other hand all voters had a right to vote for allpanels, then the inevitable conseque

Documents

[Irish Senate] Report on Reform of the Seanad (2004)