Thirty-second Amendment of the Constitution (Abolition of Seanad Éireann) Bill 2013 Seanad Éireann Second Stage Speech

The purpose of the Bill is to fulfil the Programme for Government commitment to hold a referendum on the abolition of the Seanad in the Autumn. The Government also intends to hold a referendum on the establishment of a Court of Civil Appeal on the same day and other issues arising from the early reports of the Constitutional Convention.

As this referendum is proposing a major change in the structure of our Oireachtas it is both right and appropriate that I, as Taoiseach, should come before this house today and outline the reasons why we are taking this action.

The proposed abolition of the Seanad is part of this Government’s comprehensive programme of political reform.

A programme that will establish a new politics in our Republic.

One that is more accountable more democratic more responsive the biggest package of political reform since the passing of the Constitution in 1937.

No Government would ever propose changing that Constitution lightly.

It is our fundamental law and the main blueprint for our system of Government.
It has served this country well.

But the Constitution is not and must never be fixed in stone. For the ultimate source of sovereignty in our Republic is the people. And the people have the right to amend and update their Constitution as they decide.

Including those articles of the Constitution which define the nature of our country’s Oireachtas.

For 75 years the political establishment has debated reform of the Seanad…
For 75 years that same establishment has failed to introduce a single reform of this country’s second house…

After 75 years of failure, after 10 separate reports on Seanad reform which have been ignored, this Government has decided to ask the Irish people a simple yet profound question:

Does Ireland, in your view, need a second house?

It is the people who will decide. Not this Government. Not this Oireachtas. But the people.

Members of this House will be aware that when our nation’s first Oireachtas was established in 1919, it was composed of just one chamber: Dail Éireann. It was the drafters of the Free State Constitution who established a senate in 1922. Largely to reassure members of Ireland’s Unionist community.

It soon became clear, however, that creating a properly functioning second house was a lot easier in theory than in practice. Over 10 constitutional amendments were made relating to the Free State senate, before its final abolition in 1936.

The early drafts of the 1937 Constitution envisaged an Oireachtas that was, like the first Oireachtas of 1919, unicameral in nature. A second house was included in the final document only very reluctantly by Éamon de Valera. And only on the basis that it would be under the strict control of the Government of the day.

That is why the Seanad was given so little power. And why the Taoiseach is allowed to nominate 11 Senators, effectively giving any Government a permanent majority in this Chamber.

Vocational panels were supposed to deliver independent expertise into the Seanad. But the first election to the Seanad demonstrated conclusively that even this idea wasn’t going to work, as the following quote from the Irish Times in 1938 shows:

“the idea of electing a Senate on a vocational basis has proved futile. The complete defeat of nearly every representative of the learned bodies, and of those who purported to represent interests other than those which are frankly political, was a marked feature of the results.”

Almost 60 years later, at the 2009 MacGill Summer School, I announced that Fine Gael was embarking on a root and branch analysis of the political system. Although Fine Gael had always favoured reforming the second house – a position which I reiterated in my MacGill speech – this review did something which my party had not done since the drafting of the 1922 Constitution.

It asked the fundamental question Does modern Ireland actually need a second house?

The conclusion reached was “no”.

Constitutional theory has moved on since Seanad Éireann was established. Given the huge difficulties in creating workable Second Houses in any unitary state, modern constitutional theory now places the emphasis on establishing strong unicameral parliaments with appropriate checks and balances.

Five European countries have roughly the same population as Ireland (4-6mn): Denmark, Finland, Norway, Croatia and Slovakia. None of them has a second house. In fact no unitary state in the OECD, with a population of less than 10 million, has a second house with the exception of Ireland and Slovenia.

Some of the most effective democracies in the world have abolished their second houses. All of the Scandinavian countries, for instance. New Zealand also, even though its political system is derived, like Ireland’s, from its history as part of the British Empire.

Significantly, most of the emerging democracies in Eastern Europe have also decided that they do not need a senate. If second houses are so essential to democracy why have so many small states, emerging from years of dictatorship, decided that they do not need a senate?

Some have asked why this Government has not put reform of the Seanad as a possible alternative to abolition. There are three reasons for this.

First, and most importantly, both parties of Government gave a commitment to hold a referendum on abolition. Fianna Fail also gave this commitment but have have now done a U turn.

Second, we do not believe that a second house is necessary in a modern republic, for the reasons already specified.

Third, experience in Ireland – and elsewhere – suggests that genuine reform of the Seanad will be almost impossible to achieve. There have been over 20 major proposals for constitutional Senate reform in Canada since the early 1970s – all have failed.

Supporters of Seanad retention are, in fact, deeply divided. Some want it to be an elected second Dail; others a house of experts; yet others some form of citizens assembly. ..

This lack of consensus suggests two likely possibilities.

Either, no change will be made… or reform of the Seanad will be tokenistic at best; the very minimum that can be agreed upon.

Recent proposals to reform the Seanad’s electoral system, which leave in place the Taoiseach’s 11 nominations and do nothing to change the Seanad’s powers, fall squarely into this category in my view.

Dáil Reform
Instead, I believe we need more Dail reform. We have made a start Friday sittings, additional Leader’s Questions, Topical Issues debates, an Investigation, Oversight and Petitions Committee chaired by a member of the Opposition, establishment of an Oireachtas Committee on Jobs to focus solely on this area of Government priority.

This government believes that, in tandem with the abolition of the Seanad, further change is required to strengthen the role of the Dáil.

First, we will reform the way the Dáil deals with legislation.

Legislation will first be submitted to the relevant Dáil committee in Heads of Bill format.
A new schedule will increase the amount of time available for legislative scrutiny… I expect that four-day sittings will become the norm.
Each Bill will be referred back to the Committee that originally considered it for a final examination.
Ministers will revert back to the relevant Dáil committee within 12 months after the enactment of a Bill, to review and discuss its functioning.

This new legislative process will ensure, therefore, that legislation is fully considered before, during and after it is enacted.

Committees will carry out investigations and inquiries into matters of major public importance. The legislation to give this effect has been recently published.

Furthermore, we also propose to radically overhaul the committee system in the Dáil.

14 Dáil committees will be established. Outside experts will be invited into the Committees.
We will introduce the d’Hondt system to distribute chairs of key committees on a proportional and equitable basis.

If approved by the People I and this Government are convinced that we will create a better, more effective political system with better accountability, better oversight and better scrutiny of legislation.

The Bill
I now turn to the provisions of the Bill itself.

Main Provisions
Under the Bill, and assuming the referendum is passed, Seanad Éireann will be abolished from midnight on the day immediately before the day on which Dáil Éireann first meets after the next general election. This will enable an orderly transition to be made from the outgoing bicameral to the incoming unicameral system of parliament. From abolition day, the Oireachtas will consist of the President and Dáil Éireann only.

Articles 18 and 19 of the Constitution, which deal with the composition of the Seanad, elections and nominations to it etc, and there will be deleted. Also, the Bill provides that no general election to the Seanad will take place after the next dissolution of the Dáil that occurs following the referendum.

Consequential Amendments
It will be necessary to amend or delete all the Articles in the Constitution that either relate directly to the functions of the Seanad or are premised on its existence.

Many of the changes are purely technical. In such cases, it is necessary to amend the references to both Houses, each House and so on, so as to take account of the situation that will arise if the Seanad is abolished.

Functions of the Seanad
Other references in the Constitution do relate to the functions of the Seanad, and I will now deal with these.

Legislative Role
The Articles relating to the Oireachtas legislative process will have to be amended or, where appropriate, deleted.

So Articles 20, 21, 23 and 24, which deal with the relationship between the Dáil and Seanad with regard to the passage of legislation through the Houses, will be deleted, because they will no longer be needed in a unicameral parliament. In summary, Article 20 deals with the initiation of Bills in either House and the Seanad’s power to amend Bills, while Article 21 limits the Seanad’s powers as regards Money Bills and the time within which the Seanad must consider Money Bills. Article 23 deals mainly with the time for the Seanad to consider other, non-Money Bills, while Article 24 provides that where the Taoiseach certifies that in the Government’s opinion, a Bill is immediately necessary to preserve public peace and security in an emergency, then the Seanad’s time for considering the Bill can be shortened by a resolution of the Dáil, if the President agrees.

Money Bills
As well as deleting those Articles, it will be necessary to amend Article 22, which deals with Money Bills.

Article 22 defines what a Money Bill is and provides a mechanism to resolve a dispute between the Dáil and the Seanad on whether a Bill is a Money Bill. This is because the Seanad can only make recommendations on, and cannot propose amendments to, a Money Bill. The Ceann Comhairle’s certificate that a Bill is a Money Bill is final and conclusive unless the Seanad asks the President to refer the matter to a Committee of Privileges. If the President agrees, he appoints a Committee consisting of an equal number of members of Dáil and Seanad, chaired by a Supreme Court Judge.

This procedure relates only to whether or not a Bill is a Money Bill: it is not concerned with the merits or otherwise of the Bill. The reason for maintaining and amending Article 22 is because under the Constitution, the President cannot refer a Money Bill to the Supreme Court to test its constitutionality.

In order to provide clarity on whether a Bill is a Money Bill in the context of the possibility of a reference to the Supreme Court, an Article 22 procedure is needed, even after the Seanad is abolished. So the Bill proposes that the Ceann Comhairle’s certificate that a Bill is a Money Bill will be final and conclusive unless the Dáil resolves that it is not a Money Bill.

Article 27
The Bill proposes to delete Article 27 of the Constitution. This Article provides for the possibility of a petition from a majority of the members of Seanad Éireann, and at least one-third of the members of Dáil Éireann, to the President to refer a Bill to the people on the grounds that the Bill “contains a proposal of such national importance that the will of the people thereon ought to be ascertained.” The President must consult the Council of State before deciding whether to agree to the petition.

This procedure does not apply to Money Bills, or to legislation. It applies only where a Bill is deemed to have been passed by both Houses of the Oireachtas under Article 23 – that it, applies only to a Bill that is not passed or rejected by the Seanad within 90 days, or that is passed by the Seanad with amendments that are not agreed by the Dáil. Also, for Article 27 to apply, the Dáil must have passed a resolution to deem the Bill to have been passed by both Houses.

Essentially, Article 27 provides a way of resolving a dispute between the two Houses on a legislative matter. If the Seanad is abolished there will no longer be a need for this provision and the Bill proposes to delete it. Like the Money Bill procedure, the Article 27 procedure has never been used.

Other Provisions
Other articles involve the Seanad in actions relating to legislation or to measures proposed by the Government.

Article 28.3 provides immunity from challenge on Constitutional grounds of any law – other than one imposing the death penalty – that is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or around rebellion. The Article provides that the term “time of war” includes a time when there is an armed conflict in which the State is not a participant but where each House of the Oireachtas has resolved that, arising out of the armed conflict, a national emergency exists affecting the vital interests of the State. The Article also provides that the expression “time of war or armed rebellion” includes such time after the end of the war, or armed conflict or rebellion, as may elapse until each of the Houses of the Oireachtas has resolved that the national emergency has ended. The powers in this Article for each House will, with the abolition of the Seanad, necessarily reside in the Dáil.

Article 29.4.7 and 8 relate to the exercise by the State of certain powers conferred on State under certain provisions of the Treaty of Lisbon. The State may exercise these powers only with the prior approval of both Houses of the Oireachtas. The abolition of the Seanad will mean that the power of approval will reside in the Dáil alone. I think it is far more satisfactory that it will be for a democratically-elected House to make approval decisions in this area.

Seanad Role in Procedures for Removal of Certain Office-Holders
I now turn to the Seanad’s role in the procedures laid down in the Constitution for the removal of certain office-holders.

Impeachment of the President
Abolition of the Seanad will remove the current arrangement whereby the House that prefers a charge of stated misbehaviour against the President cannot be the House that investigates that charge. The Dáil will of course retain the power under Article 13.8 to ask a court, tribunal or other appointed body to conduct an investigation on its behalf.

However, so as to ensure the highest level of protection for the independence of the office of President, the Government is proposing in the Bill that a resolution to prefer a charge against the President and, if an investigation sustains that charge, a resolution to remove the President, must each be passed by four-fifths of the total membership of the Dáil.

Impeachment of the Comptroller &Auditor General: and of Judges
The Government has also considered the procedure in the Constitution for removal of the Comptroller and Auditor General – the C&AG – in Article 33 and of Supreme and High Court Judges in Article 35.

The removal of the C&AG requires a resolution not just of the Dáil but also of the Seanad. The abolition of the Seanad raises the question of whether some additional safeguard should be provided for the independence of that office.

The independence of the judiciary is central to our system of government and the constitutional balance of powers. This is reflected in the fact that, as in the case of the C&AG, a resolution must be passed by both Houses of the Oireachtas to remove from office a judge of the Supreme or High Court.

The Government is anxious to ensure the continued independence for these offices. Accordingly, we are proposing that two-thirds of the total membership should be required in the Dáil to remove either the C&AG or a judge of the Supreme or High Court.

Membership of Presidential Commission and Council of State
The Bill proposes that, following abolition of the Seanad, the Leas-Cheann Comhairle will replace the Cathaoirleach on the Presidential Commission.

Abolition of the Seanad would reduce parliamentary representation on the Presidential Commission to one member, and would reduce the Commission itself to two. In order to maintain the current constitutional balance, the Bill proposes that the Leas-Cheann Comhairle of the Dáil will replace the Cathaoirleach of this House as a member of the Commission.

It is also necessary, however, to designate substitutes should they be unavailable. Accordingly, the Bill provides that Dáil Éireann shall nominate, as soon as may be after it re-assembles following a general election, two members to act as substitutes for the Ceann Comhairle and Leas-Cheann Comhairle should either or both be unable to act on the Commission, or if one or both of the posts are vacant.

The Bill proposes that the Leas Cheann-Comhairle should replace the Cathaoirleach on the Council of State.

Nomination of Presidential candidates
Turning to other matters, the Bill proposes to amend Article 12.4 of the Constitution to provide that not less than 14 serving members of Dáil Éireann may nominate a candidate for President. At present a nomination under this provision requires not less than 20 members of both Houses.

This reduction to 14 is proposed in light of the proposal to abolish the Seanad, as well as the planned reduction in the number of TDs after the next general election.

Transitional Arrangements
Transitional arrangements will be necessary in the move from a bicameral to a unicameral parliamentary system.

So the Bill provides that any Bill not passed, or deemed passed, by both Houses of the Oireachtas before abolition of the Seanad will be deemed to have lapsed. Any such Bill, may, however be introduced or re-introduced in Dáil Éireann following its re-assembly after the general election.

However, any Bill passed, or deemed passed, by both Houses, that has not been enacted before abolition of the Seanad, can complete the process of signing and promulgation into law, subject of course to any other constitutional provisions, such as a reference by the President to the Supreme Court.

Finally let me mention, the Transitory Provisions – Articles 51-63 – of the Constitution. These provided for the transition between the Irish Free State and the new State created by the 1937 Constitution. In accordance with their own terms, they are not published in official texts of the Constitution. However, the Bill proposes to delete two of them.
Article 53 deals with the election and assembly of Seanad Éireann after the coming into operation of the 1937 Constitution. Article 55 dealt with the composition of the Oireachtas and the signing and promulgation of Bills passed by it in the period between the coming into operation of the Constitution and the entry into office of the President.

Conclusion
In conclusion, this Bill will provide the electorate with the opportunity to render their verdict on the Seanad. It is the people, not anyone in Government, in the Dáil or in this House, who will decide. We must await their decision.

I commend the Bill to the House.