Seanad Reformpaper

Seanad ReformPaper

Introduction

A meeting of the All-Party Group on Seanad Reform on 22 October 2008 discussed a scoping paper on reform circulated by the Minister for the Environment, Heritage and Local Government. The scoping document was focused on those changes which could be introduced without the need to amend the Constitution. Following discussion of this document, the All-Party Group requested a further paper setting out a broader approach to possible reform. This paper sets out the 4 issues agreed to be considered by the Group.

The All-Party Group’s members agreed to consider the options in consultation with their respective political parties, and to respond, in writing, prior to the next meeting of the All-Party Group.

Background

The 4 issues set out in this paper are largely a subset of the recommendations of the Seanad SubCommittee on Seanad Reform, contained in its report of April 2004.[1]Thereport included recommendations for a significantly reformed Seanad of 65 members. The most significant changes related to the manner in which the Seanad would be elected, as follows:

26 directly elected by national popular vote using a list-PR system;
6 directly elected to a higher education constituency under PR-STV;
20 indirectly elected under PR-STV to a national constituency by Dáil deputies, senators and county councillors;
12 nominated by the Taoiseach;and,
An automatically re-elected Cathaoirleach of the Seanad.

Other recommendations related to the role and function of the Seanad. See Annex 2 for a summary of the report’s recommendations.

Issues for Consideration

1 - An Enabling Constitutional Amendment

The All-Party Group agreed to consider a proposal that, instead of attempting to gain consensus at this stage on all potential avenues of electoral reform, the parties agree to an enabling Amendment of the Constitution to permit subsequent reform by legislation.

Such an enabling amendment would delete Articles 18 and 19 of the Constitution.[2] Article 18 provides for:

The current vocational panel system for electing 43 members of Seanad Éireann;
The election of 6 university Senators from the NUI and TCD;
The nomination of 11 members by the Taoiseach;
The timing of elections;and,
Eligibility for election etc.

Article 19 allows for the direct election of Seanad members by any functional or vocational group, association or council, in substitution for an equal number of Seanad members elected from the corresponding vocational panels.

The proposal suggested was to replace Articles 18 and 19 with a simpler provision to provide that the Seanad will be elected in a manner determined by legislation. This would be similar to Article 16.2.1 which states that “Dáil Éireann shall be composed of members who represent constituencies determined by law”.

The replacement of the detailed provisions currently in the Constitution with a simpler enabling provisionwould allow greater flexibility to reform the electoral process by legislation. It would also avoid the requirementto gain consensus on all issues in relation to a future electoral process at this point.

However, notwithstanding the potential flexibility of such an approach, a number of complex issues would still need to be addressed. It is likely that the Constitution would still have to lay down some general guidance for the legislature. Issues which would need to be addressed include:

(1)Facilitating direct and indirect elections;

(2)Allowing for the Taoiseach to nominate members to ensure a Government majority in Seanad Éireann; and,

(3)Matters such as the timing of elections, the system of election, eligibility for election etc.

The question also arises as to the wisdom of going to the people with a referendum in the absence of significant certainty as to any new proposed arrangements to elect the Upper House. It has been the practise, on occasion, where Constitutional amendments are proposed, to publish draft Bills so that the electorateis aware of the full extent of any proposed changes.

In the event that a Constitutional amendment providing for an enabling provision is put to a referendum, the electorate should be given a reasonable amount of knowledge of the model of Seanad Éireann which is proposed, rather than voting in a vacuum on a general provision.

2 - The Higher Education Constituency

The 2004 Seanad Reform Report recommends the introduction of a single national constituency of 6 seats for the Higher Education Constituency, elected under the PR-STV system with the election taking place on the same day as European and local elections

The 7th Amendment of the Constitution already provides the constitutional basis for higher education constituency reform. The question of whether the 1979 amendment permits a single national constituency of 6 seats, as opposed to the retention of two expanded 3-seat constituencies, was raised during the Group’s discussions.

The Attorney General’s Office has considered this matter and advises that Article 18 of the Constitution, as amended, allows for one national constituency of 6 seats. The advice states that

“the Oireachtas can provide for a constituency made up of one or more of the groupings constituting firstly, the two listed universities, and secondly any other institutions of higher education set out in legislation… A large variety of different combinations could be put in place… The option of establishing a single national constituency is available.”

Legislation to specify nomination procedures, franchise and registration of electors, method of voting, counting of votes, etc. would be necessary to implement the widening of the Higher Education Constituency. A significant logistical necessity, which would generate associated costs, would be the compilation of an electoral register of eligible voters for those graduates who have not attended Trinity College or an NUI University.

The alignment of Seanad elections with European and local elections, as proposed in the 2004 Seanad reform report, would require constitutional amendment.

3 - Public Appointments Scrutiny

The 2004 Report recommends that the Seanad should be assigned responsibility for the scrutiny of senior public appointments, to improve transparency.

This issue is notable in that the assignation of responsibility for the scrutiny of public appointments to the Seanad would result in a significantly altered mandate for the Upper House, which distinguishes it from the other 3 issues which are the subject of this paper and which relate primarily to the election and composition of the House. As such, considerable thought and development would be necessary to refine the idea of how the Seanad would perform such a role. The rationale of assigning such a role to the Seanad, while excluding the Dáil would also need to be explained.

Legislation would be required to identify the senior positions involved and to amend the relevant statutory provisions under which the positions are currently filled. In addition, legislation would be necessary to give effect to recommendations in the report in relation to reviewing the appointment file, meeting with the nominee, preparing reports for the appointing authority etc. Consideration would also be required as to how such a role would impact on compliance with due process and modern recruitment standards.

During the All-Party Group’s meeting of 22 October, this recommendation attracted provisional consensus, subject to discussions by Group members with their respective political parties.Views in relation to the scrutiny process, and the positions which could be subject to Seanad scrutiny, are invited.

4 -Houses of the Oireachtas Commission

The Report recommends legislation to amend the Houses of the Oireachtas Commission Act 2003 to provide for the membership of the Clerk of the Seanad on the Houses of the Oireachtas Commission. The Commission has statutory responsibility for expenditure, staffing and services in the Houses of the Oireachtas. The Clerk of the Dáil is a member of the Commission. The 2003 Act was sponsored by the Minister for Finance.

During the All-Party Group’s meeting of 22 October, this recommendation attracted provisional consensus, subject to discussions by Group members with their respective political parties.

Annex 1

Articles 18 and 19 of the Constitution - Seanad Éireann

Article 18

1.Seanad Éireann shall be composed of sixty members, of whom eleven shall be nominated members and forty-nine shall be elected members.

2.A person to be eligible for membership of Seanad Éireann must be eligible to become a member of Dáil Éireann.

3.The nominated members of Seanad Éireann shall be nominated, with their prior consent, by the Taoiseach who is appointed next after the re-assembly of Dáil Éireann following the dissolution thereof which occasions the nomination of the said members.

4.1° The elected members of Seanad Éireann shall be elected as follows:—

i Three shall be elected by the National University of Ireland.

ii Three shall be elected by the University of Dublin.

iii Forty-three shall be elected from panels of candidates constituted as hereinafter provided.

2° Provision may be made by law for the election, on a franchise and in the manner to be provided by law, by one or more of the following institutions, namely:

i the universities mentioned in subsection 1° of this section,

ii any other institutions of higher education in the State,

of so many members of Seanad Éireann as may be fixed by law in substitution for an equal number of the members to be elected pursuant to paragraphs i and ii of the said subsection 1°.

A member or members of Seanad Éireann may be elected under this subsection by institutions grouped together or by a single institution.

3° Nothing in this Article shall be invoked to prohibit the dissolution by law of a university mentioned in subsection 1° of this section.

5.Every election of the elected members of Seanad Éireann shall be held on the system of proportional representation by means of the single transferable vote, and by secret postal ballot.

6.The members of Seanad Éireann to be elected by the Universities shall be elected on a franchise and in the manner to be provided by law.

7.1° Before each general election of the members of Seanad Éireann to be elected from panels of candidates, five panels of candidates shall be formed in the manner provided by law containing respectively the names of persons having knowledge and practical experience of the following interests and services, namely:–

i National Language and Culture, Literature, Art, Education and such professional interests as may be defined by law for the purpose of this panel;

ii Agriculture and allied interests, and Fisheries;

iii Labour, whether organised or unorganised;

iv Industry and Commerce, including banking, finance, accountancy, engineering and architecture;

v Public Administration and social services, including voluntary social activities.

2° Not more than eleven and, subject to the provisions of Article 19 hereof, not less than five members of Seanad Éireann shall be elected from any one panel.

8.A general election for Seanad Éireann shall take place not later than ninety days after a dissolution of Dáil Éireann, and the first meeting of Seanad Éireann after the general election shall take place on a day to be fixed by the President on the advice of the Taoiseach.

9.Every member of Seanad Éireann shall, unless he dies, resigns, or becomes disqualified, continue to hold office until the day before the polling day of the general election for Seanad Éireann next held after his election or nomination.

10.
1° Subject to the foregoing provisions of this Article elections of the elected members of Seanad Éireann shall be regulated by law.

2° Casual vacancies in the number of the nominated members of Seanad Éireann shall be filled by nomination by the Taoiseach with the prior consent of persons so nominated.

3° Casual vacancies in the number of the elected members of Seanad Éireann shall be filled in the manner provided by law.

Article 19

Provision may be made by law for the direct election by any functional or vocational group or association or council of so many members of Seanad Éireann as may be fixed by such law in substitution for an equal number of the members to be elected from the corresponding panels of candidates constituted under Article 18 of this Constitution.

Annex 2

The Recommendations of the 2004 Seanad Reform Report

Recommendations requiring a Constitutional Amendment

Size

Seanad to consist of 65 members - 32 directly elected, 20 indirectly elected, 12 nominated by the Taoiseach and the Cathaoirleach who would be deemed re-elected as a Member of the House.

Rolling Renewal

Seanad to be renewed on a rolling basis with direct elections taking place on the same day as the European Parliament and local elections. Indirect elections to take place not later than 90 days after the Dáil General Election and the Taoiseach’s nominations to be made after the Dáil General Election.

Direct Elections

A single national constituency consisting of 26 seats elected under list-PR using the largest remainder system and in a manner prescribed by law.

Higher Education Constituency

A single national constituency consisting of 6 seats elected under the PR-STV with the election taking place on the same day as the European Parliament and Local Elections (The 7th Amendment of the Constitution already provides the constitutional basis for this recommendation).

Indirect Elections

A single national constituency consisting of 20 seats elected under PR-STV and in a manner prescribed by law.

Taoiseach’s Nominees

The Taoiseach to nominate 12 Senators in a manner prescribed by law.

Automatic Re-election of the Cathaoirleach of the Seanad

Provision to be made to enable the Cathaoirleach to be deemed to be re- elected at a Seanad General Election as a Member of the House.

Recommendations Requiring New Legislation

Higher Education Constituency

Legislation to specify nomination procedures, franchise and registration of electors, method of voting, counting of votes, etc.

Direct Elections

Legislation to specify nomination procedures, franchise and registration of electors, method of voting, counting of votes, etc.

Indirect Elections

Legislation to specify nomination procedures, franchise and registration of electors, method of voting, counting of votes, etc.

Taoiseach’s Nominees

Legislation to make provision for two Senators to represent persons from Northern Ireland and to require the Taoiseach to have regard to the capacity of his nominees to represent emigrants, immigrants and under-represented groups in Irish society.

Senior Public Appointments

Legislation to assign responsibility to the Seanad for the scrutiny of senior public appointments.

Houses of the Oireachtas Commission

Legislation to amend the Houses of the Oireachtas Commission Act 2003 to provide for the membership of the Clerk of the Seanad on the Houses of the Oireachtas Commission.

Recommendations Requiring Amendments to Standing Orders

Attendance of Former Taoisigh

Former Taoisigh and Tánaistí to have the right to attend and speak, but not vote, in the Seanad.

Legislative Scrutiny

A formal system of public consultation to be put in place in the Seanad after first stage in the legislative process to allow for consultation with interested groups and individuals.

European Union Affairs

The Seanad to be given a new role in EU affairs with responsibility for assessing legislative and other proposals going before EU Councils, reviewing particular draft EU legislation, providing Irish MEPs with a domestic forum and developing a medium-term policy framework to address challenges and opportunities facing Ireland over the next ten years.*

* It may be considered appropriate to amend the European Union (Scrutiny) Act 2002 to underpin some of these measures.

Public Policy

The Seanad to be the principal policy reviewer in the Houses of the Oireachtas, concentrating initially on medium-term economic and social planning, performance of Government Departments, State agencies and Semi-State bodies, Social Partnership and North-South Implementation Bodies.

[1]See pg. 67 of the Report for a list of all of the Report’s recommendations. The report is available online at

[2]See Annex 1.