—Eoin Carolan, University College Dublin
In a result that defied all pre-referendum opinion polls, a narrow majority of voters last week rejected a proposal to abolish Ireland’s Seanad (Senate). The proposal, which was closely associated with Irish Taoiseach (Prime Minister) Enda Kenny, was defeated by 51.7% to 48.3%, a margin of almost 42,500 votes.
Various reasons have been suggested for this unexpected outcome. A lackluster Government campaign that consisted of little more than the simplistic slogans of “Less politicians” and “Save €20m” failed to register with a largely disinterested public. The Taoiseach’s refusal to engage in a live debate on the proposal, which he justified at one point with the playground bravado that he did not want to embarrass his opponents, also seemed to undermine the case for abolition. There was also evidence from social media that some ancillary aspects of the proposed abolition (explained here and here ), such as the removal of a mechanism by which a Bill could be referred directly to the People, caused disquiet.
Most likely, however, the result primarily reflected the enthusiasm gap between the pro- and anti-abolition campaigns, a factor which may have proved decisive given the relatively low turnout of 39.17%.
The most interesting aspect of the result is not, perhaps, how it came about but rather what it means for future political reform in Ireland.
The economic crisis in Ireland prompted widespread calls for radical, if frequently unspecified, reform of Ireland’s political system. Since the current Government came to power, however, the reforms offered have been chiefly cosmetic. The proposal to abolish a chamber with limited power seemed, like the creation of a Constitutional Convention with an agenda to examine issues of, at best, tangential importance to political reform, an attempt to present an appearance of change while changing little.
There is a chance, however, that this referendum result may increase the pressure for actual political or constitutional reform. A notable feature of the debate over abolition was the consensus on all sides that there is little, if any, justification for the retention of the Seanad in its current form. With universal agreement on the need for change, the Government – which has, after all, spent the last few months criticizing the chamber as ineffective, elitist and indefensible – seems likely to at least have to consider the possibility of reform.
One of the most common criticisms of the Irish political system is the degree to which it centralizes decision-making power in the executive. The Government of the day exerts almost total control of both chambers of the Oireachtas (parliament), a situation which is exacerbated by a strong whip system, a traditionally cautious civil service, a civil society sector which is largely dependent on government funding and weak local government. This can lead to a lack of alternative voices in Ireland’s public space, generating a degree of unquestioning consensus that can – as the groupthink that undermined effective banking regulation and encouraged a housing bubble in Ireland showed – have damaging consequences for public policy. Indeed, it is arguable that this tendency towards groupthink may be particularly pronounced in a small and relatively homogeneous state like Ireland.
The creation of a more effective and independent second chamber has the potential therefore to address some of these issues by providing for alternative expressions of the public interest in Irish political discourse.
What form might a revised Seanad take? A distinction should be drawn between those changes that could be made by statute and those which would require constitutional change – and thus another referendum.
The most significant change which could be adopted by ordinary legislation would be to the election of the majority of its 60 seats. Reflecting the popularity of corporatist theory at the time of its creation, the Seanad is in theory, a vocational assembly with 43 of its members elected from specific vocational panels. The electorate for these panels is, however, confined to elected politicians with the result that the members chosen are other party political figures. One obvious reform would be to allow for direct public elections to these seats. If this election took place at a different time, or by way of a different electoral method, this would seem to go some way towards establishing a democratically legitimate but alternative voice in Irish political life.
Six other Senators are elected by the graduates of specific universities in Ireland. A constitutional amendment to expand this franchise to graduates of other institutions was passed in 1979 but has never been implemented. This, again, would seem to be a change that could be made in the short-term pending more long-term reforms.
However, the power of the Taoiseach to appoint 11 members, which tends to ensure a Government majority and thereby undermines the potential for an independent second chamber, is conferred by the Constitution and so could only be changed by referendum. In the short term, one possibility here would be for future Taoisigh to follow the example of Mr. Kenny by using this power to select some independent figures. It might be doubted, however, whether this practice would survive if the parliamentary arithmetic was closer than it is at present.
Therefore, while some reform is possible in the short term, it seems likely that constitutional change would be required to establish a truly effective and independent second chamber. Issues to be considered in this context would include the interests which a reformed Seanad is intended to represent; powers which a reformed Seanad might have to delay or otherwise block legislation; and what mechanism might be established to allow a gridlock between the two chambers to be overcome.
Critically, experience elsewhere indicates that it would be misguided to focus on any one aspect of the Seanad in considering how it might be reformed or enhanced. The legitimacy and effectiveness of second chambers seems to depend on the interplay between several different factors.
This can be seen, for example, in relation to the Canadian Senate. While that body has very significant formal constitutional powers, it is, in reality, unable or unwilling to use them because of the fact that – as a wholly appointed body – it lacks credibility and legitimacy in the eyes of the media and public.
By contrast, while the House of Lords enjoys comparatively limited powers as a matter of law, its willingness to exercise those powers – and the impact which that exercise has had on government, and on the attitude of the media and public to it – seem to have grown since the removal of hereditary peers. This indicates that the success of a second chamber depends not only on its powers but also on other (interrelated) factors such as its method of selection, the extent to which its composition differs from the lower house, its credibility and legitimacy, its size, the caliber and qualifications of its members, the tenure and independence of those members, and so on.
The most crucial challenge for a second chamber accordingly appears to be to secure its legitimacy in the eyes of the public and of the media. This is perhaps the most intangible quality of a second chamber, which makes it difficult to secure. However, an elected chamber with a different composition from that of the lower house is more likely to have perceived legitimacy than an appointed assembly which mirrors and echoes the individual and political make-up of the lower house. In, addition, however, consideration might also be given to taking steps to ensure that a different kind of candidate is selected. The relative popularity of the Seanad’s current independent Senators suggests that it could be useful for the credibility of a reformed second chamber for it to be composed, at least in part, of persons who are not regarded by the public as ‘professional’ politicians. Options here might include term limits, a prohibition on members of the Seanad subsequently seeking election to the Dáil (lower house), or other measures which might make a Seanad position less attractive to those for whom politics is a long-term career.
The general lesson seems to be that, if reform is to be credible, effective and legitimate, it should aim to establish an elected and independent chamber which is compositionally and functionally distinct from that of the lower house. For this, constitutional reform seems necessary. What remains to be seen, however, is whether the pressure for Seanad reform will be maintained, and whether a government that has now lost two referenda on political reform retains the appetite for another – especially on a matter that it has until now opposed.
Suggested Citation: Eoin Carolan, Ireland’s Senate Survives, Int’l J. Const. L. Blog, Oct. 9, 2013, available at: http://www.iconnectblog.com/2013/10/irelands-senate-survives