Home > Commentary, Constitution of Ireland > Constitutional Revolution II: The Dangers of Piecemeal Reform

Constitutional Revolution II: The Dangers of Piecemeal Reform

Last year Fiona asked if constitutional revolution in Ireland was nigh: Fine Gael were proposing several constitutional amendments; an amendment on Children’s Rights was in the works; and the Bill of Rights debate in Northern Ireland had reignited the question of an All-Ireland Charter of Rights. Now, the Children’s Rights amendment has been published (see Our Symposium) and the Bill of Rights debate continues but is mired in the malaise of British politics (see Colin Harvey here and myself here). Today Fine Gael announced the publication of a new document, New Politics, which calls for a ‘Constitution Day’ within one year of their taking office in Government Buildings to allow the public to consider five new constitutional amendments.

These are:

- the abolition of the Seanad;

- a new “list” system for selecting 15 TDs;

- new constitutional recognition given to four Dáil committees;

- reduction of the President’s term of office from seven years to five;

- the introduction of a public petition mechanism for the Dáil.

There is much worth examining in this proposal and this post does not intend to do all of the necessary work. In Fiona’s earlier post, she noted that Fine Gael’s constitutional proposals had the whiff of New Labour in 1997 about them. There are certain key similarities: both parties have/had spent a long time in Opposition, both sought to revitalise what was/is seen as an ailing political system and both were/are attempting to build a movement to oust an unpopular Government that arguably should have lost office in the previous General Election.

However, there are also key differences. One relates to the substance: whatever the flaws of the Seanad, it does not stand as an affront to democracy in the way that the House of Lords did. And – as I’ll discuss below – the difficulties New Labour have had in reforming Britain’s upper House must serve as a cautionary tale for Fine Gael. New Labour also had the good sense to tiptoe around the monarchy, their 1997 Manifesto declaring – in clearly measured prose – “We have no plans to replace the monarchy.” In 1997 the Head of State in Britain was not fatally unpopular and it is unclear that there is public appetite for reform of the Presidency. Fine Gael’s decision to reduce the President’s term, while not necessarily a criticism of the office or its holder, is nonetheless an electoral and constitutional risk.

A further key difference relates to the opportunity cost of such a reform. In 1997-1999 the New Labour government had time on its hands. It had committed to continuing with the Conservative Party’s spending levels for the first two years of its term – a promise that was key to attracting wavering voters that may have been wary of a tax-and-spend left-wing government. This commitment left New Labour in need of a first-term project and the British constitution was the hobbyhorse of choice. There seems little prospect of the public in Ireland fearing a tax-and-spend government in the next General Election, it seems much more likely that the worry will be about tax-and-cut. However the economic debate plays out, it is clear that the principal priorities for the next government will be creating jobs, attracting investment and managing a painful and slow economic recovery. With so much to do, is there time for an overhaul of the Constitution?

One might argue that a good Government would make time. Even if the principal electoral concern is the economy, lasting economic and social recovery may very well need to be built on sounder political grounds. As Terry Eagleton notes (reviewing Fintan O’Toole’s Ship of Fools):

The old-style Tammany Hall politics of power and prestige, along with what O’Toole sees as an anarchic attitude in business to law and morality, were part of what caused the rot.

Whether one agrees with this view (as one suspects Fine Gael would) or not, it is not hard to conceive of an argument that reform of the political system for the better is in the long-term economic interests of the country (and that is even before one considers arguments as to the need for greater social justice to couple economic growth). However, this is where the New Labour experience offers clear lessons for Fine Gael and the country: the dangers of piecemeal reform.

Consider some of the early reforms introduced by New Labour:

  • The establishment of devolved assemblies and parliaments in Northern Ireland, Scotland and Wales (1998).
  • The incorporation of the European Convention on Human Rights by the Human Rights Act (1998).
  • The ousting of (almost all of) the hereditary peers from the House of Lords (1999).
  • Regulation of political parties by the Registration of Political Parties Act (1998).
  • The introduction of an elected mayor in London and the reform of local government (1999/2000).
  • The adoption of new legislation on Freedom of Information (2000).

There have been further reforms, but it is the early zeal that we are considering here. Of the above initiatives, arguably only the first has resulted in lasting constitutional change for the better. Devolution in Scotland has been a resounding success (for Scotland at least), the Irish institutions appear to be secure (if not yet stable) and after initial uncertainty, Welsh devolution appears to be embedding itself in the public and political consciousness. However, even devolution, Labour’s true constitutional success, is problematic: it makes the absence of ‘English devolution’ and the related ‘West Lothian’ question more pertinent than ever.

The usefulness and stability of the other reforms are less certain: the Human Rights Act was enacted with great fanfare and been an endangered statute ever since; after the initial headrush of ousting the hereditary peers, House of Lords reform has foundered on the rock of British constitutional conservatism; the operation of the Freedom of Information Act as a tool of transparency has been resisted by the government; and other political reforms, at central and local levels, have been undermined by two authoritarian Prime Ministers and a discredited political culture for which the expenses scandal has been but the tip of an iceberg of disrepute.

Of all of the ill-fated reforms, it is the House of Lords that offers the most obvious and telling parallels for Ireland. However undemocratic, the House of Lords is a cog in the British constitutional machine. One cannot simply remove a cog and hope that the machine continues to operate. Recognition of this fact – and fears of political repercussions – have petrified both Government and Opposition and prevented complete reform of the House. The absence of such reform also gives lie to the idea that New Labour had any real plans for a ‘New Britain’. Instead, their constitutional reforms can best be seen as a mix of political legacies (devolution and the Human Rights Act were promises of the late John Smith) and opportunism (in removing the hereditary peers New Labour swung the balance of the House away from an overall Conservative majority).The result is a collage-like constitution that offers no clear picture.

One can’t help but wonder if Fine Gael’s promise of a ‘New Republic’ is any better than Labour’s ‘New Britain’. There is no doubt that there are parts of the Constitution in need of reform (this writer would start with the first line of the Preamble which claims that all authority flows from the Most Holy Trinity). However, of thirty amendments to the Constitution that have been considered by the people, I can only identify five that were accepted and are operational reforms of the political system (Fourth, Seventh, Nineth, Seventeenth and Twentieth) and several of these are quite modest. DeValera’s constitution is far from perfect, but it does establish a system of government for the country. Any serious overhaul must do the same.

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  1. Vicky Conway
    March 13, 2010 at 11:26 am

    These are just ridiculous proposals. I appreciate they may (and I stress may, as I’m not convinced at all) improve the system of governance, there are far more pressing issues in the constitution to be addressed which there actually is public disquiet about. This just seems like a waste of time, energy and paper to actually campaign about this.

  2. March 13, 2010 at 12:01 pm

    I am going to try not to judge until I see this document that, one hopes, will explain this somewhat. But abolition of the Seanad continues to strike me as nuts (although reform is not), which 4 committees are to have constitutional recognition and what impact for future parliamentary reform might flow from that, the list proposal just baffles me. Rowing back Abbeylara decision re committees seems prima facie sensible. Public petition for the Dail?? Why?? Isn’t that what the constituency clinics etc are for? Also ‘constitution day’ strikes me as wildly optimistic, after all in my experience most Irish people have never read the constitution or even held a copy in their hands. Increasing constitutional awareness ought to be step no. 1 here. Send a copy of the constitution to every home in the country with a short guide; teach the constitution (history and basic contents) in CSPE in secondary school. You can not expect people to make informed decisions on a document and system of governance they have never been told anything objective about.

  3. March 13, 2010 at 12:16 pm

    The proposals for a list system are profoundly undemcratic. List systems take the decision as to who the member of parliament is out of the hands of the voter and makes it the sole preserve of the political parties. List systems come from a patronising view of the voter that they are not wise enough to choose the right person. The notion of someone that would spend 100 per cent of time “legislating” is a not. Legislators are not legal draftspersons, they are supposed to bring what they learn as a representative of the people to their legislation, and the only way you do that is by engaging with the people, in other words the voters. I as a T.D. am deputy for the Dail for my constituents and I am a better informed legislator because I am in regular contact with my constituents. I personally will fight tooth and nail any attempt to move from all of our TDs being elected on an equal basis, by Proportional Representation by Single Transferable Vote in multi seat constituencies. Any other electoral system of electing our TDs is less, giving the voter less say. Our system is the most democratic system giving the voter the ultimate say in who sits in our Dail. The voter is sovereign in our system and has the prerogative to vote for the “right” or “wrong” person.

    The notion of the electoral system being broken and at fault is just denying that maybe we just need to vote for a change in political party, political ideology and political policies at the next election. You don’t need electoral reform to vote for change, you just go in to the ballot box and cast your vote. That is the beauty of democracy, that you can change your mind about the political parties, political policies, political ideology that will make a difference for the better.

    Those that say the Seanad is not working miss the point of what an upper house is for. An upper house is to act as a check on the lower house by slowing down the passing of legislation. That is why our constitution provides that the second stage, committee stage and report stage of passing a bill, must not only be gone through in the Dail, but also the Seanad. The Seanad has slowed down the passing of legislation in Ireland, has ensured legislation get’s more scrutiny and as Michael McDowell said the other day, often in the Seanad the scrutiny of legislation takes place in a less confrontational environment that is a feature, and a necessary feature, of our Dail.

    Legislation is much of the Oireachtas work, but it is not gaps in legislation that led to our economic crisis. It was budgetary policy, tax breaks and right wing economics, cheerleaded on by the same commentators who now are talking about the electoral system being broken and the need for a better class of politician to be elected to the Dail.

    Public petitions to the Dail could be arranged by a change of standing orders and the notion of a referendum to do so is a nonsence.

  4. March 13, 2010 at 12:19 pm

    Sorry that sentance should read “The idea of someone that spends 100 per cent of their time “legislating” is a nonsence”. Sorry about the typos.

  5. ciancmurphy
    March 13, 2010 at 12:48 pm

    I’m also minded to avoid pre-judging, the message of my (unintentionally long) blog post was even-if-it’s-broke-be-careful-how-you-try-to-fix it. Apparently the document has been in gestation for a while, maybe it’s more thought through than my suspicions are wont to allow. Abolition of the Seanad is a massive undertaking though and would require serious thought to be given to the functions of the Seanad and whether the Dáil can reasonably carry them out as well. There would have to be comparative analysis of countries like New Zealand – does unicameralism only work if there is a strong and empowered local government to fix the potholes, etc? Hard to think that all of the questions could be answered for a referendum within a year of a General Election.

  6. March 13, 2010 at 1:28 pm

    I think abolition of the Seanad is a frankly dangerous proposition. The Seanad has some unique features that should not be abandoned even if reform is introduced. So, even if we say some Senators are to be directly elected by means of universal vote then I think some ought to be appointed (although I am not a fan of the university seats, for example) but not by the Taoiseach–by an appointments commission. The Seanad is not only for slowing down (which is a very very important function as the sterling work of the (unfairly in my view) much maligned House of Lords demonstrated re control orders, judicial oversight etc) but also for expertise. If the political parties were more willing to put Senators on Cabinet and recognise the importance of expertise then it could be used to even greter effect. Indeed, the list system–if it is intended to work for expertise reasons and not just cronyism–should not even be thought about if we had proper Seanad reform. The danger of the FG proposals–as I wrote in that post Cian linked to–is they have a populist ring to them re things like abolition of the Seanad that frankly seems to me to be likely to preclude proper reasoned debate on such a vast constitutional undertaking. I await the document, and I believe that it is probably well meaning and knowing some of the FG backroom team I have no doubt that it has been thought about in some depth, but I just don’t hold out much hope that politics will not have overtaken reason. If we want real reform in my view we need to rethink the partisanship of governance in this country and the corrosive impact of parliamentary whipping on real legislating and debate. Will there ever be the appetite to act on this though? Somehow I doubt it.

  7. March 13, 2010 at 1:29 pm

    Deputy Tuffy, by the way, does the fact that the proposal is just for 15 TDs to be elected by list in any way make you less concerned about the anti-democratic nature of the proposal? Does the number of TDs to enter the House in this fashion matter?

  8. vconway
    March 13, 2010 at 2:38 pm

    Agree with you Fiona on the Seanad proposals. Anyone any idea why the proposed reduction in the period of office for the President? Don’t understand that one at all.

  9. March 13, 2010 at 4:03 pm

    Fiona,

    It doesn’t make me less concerned. Fine Gael proposals (and by the way it is my perception that the proposals do not have the backing of the bulk of the back bench TDs in Fine Gael) would mean a two tier system of TDs. And Fine Gael are suggesting, in saying that those elected on lists would focus 100 per cent on legislation that the list TDs would be a superior type of TD. We are all elected on an equal basis at the moment. But is that they way it is in other countries that have lists. Look at the Berlesconi lists for example. And wasn’t the list used by Sarkosy to banish an unwanted Minister in his cabinet to the European Parliament. No question bu party leaders and their advisers would want try and get their chosen ones elected by list, and those chosen ones by definition may well turn out to be yes men and women or arrogant types that look down on mere voters. The experience in Wales however contradicts this notion that the list people would be the better class of representative in a parliament that had a mix of those elected by list and those elected by constituency. When the view of the Welsh voters to their elected representatives in the Welsh Assembly was surveyed by an Electoral Commission in Wales it was found that “Although in the Assembly constituency and list members have equal rights, there remains a perception that list seats are consolation prizes for parties which failed to win constituency seats”.

    What is good about our system at the moment is that all TDs are ultimately accountable to the voter as a named person on a ballot paper the voter gets tick.

    The other problem I have with the Fine Gael proposals is that they are playing up to the idea that voters and constituents contacting their TDs is a bad thing. That it is “clientelism” is the cause of our political problems. The people that come to my clinics include the poorest people in our society. The bankers that sought and got the bank guarantee in September and 2009 did not do so by attending a TDs clinic. IBEC and the Construction Industry Federation don’t go to clinics I would add and you can be pretty sure that they and other lobby groups for the rich and powerful will be in touch with TDs elected by list systems even if mere “clients” (in otherwords voters/constituents) are not.

  10. ciancmurphy
    March 13, 2010 at 4:43 pm

    The Welsh system was somewhat dysfunctional: in one constituency the second, third and fourth placed individual candidates were nonetheless elected by the list system. It’s worth pointing out that following the complaints in Wales, the voting system was changed by the Government of Wales Act 2006, section 7 of which prevents a person who is standing as a candidate to be considered also on a party list. So it is possible to devise a system to avoid that problem. The Germans use it in their Bundestag and it’s used in New Zealand’s unicameral system. I’m not at all convinced that we need to alter the voting system. Perhaps we should be tipped off about Fine Gael’s intentions by their two proposals for the legislature: are they aiming to emulate the Kiwis?

  11. March 13, 2010 at 5:06 pm

    Cian,

    The reform you refer to did not address the problem that is raised in the quote from the Commissions report I give above, and in fact what the commission recommended was this:

    “If the number of Assembly Members is to increase we recommend that, on balance, the STV system of election is the best alternative to the present system”
    Arrangements of the National Assembly for Wales Spring 2004

    It makes sense that voters would view those elected in constituencies as superior and as having more of a mandate than those elected by list systems. when you think of it there is already a kind of list in operation in the Seanad, where councillors elect Senators. It is incredible too that those that argue Senators should be reformed because of the narrow electorate that elects the Seanad would at the same time propose, as the Fine Gael leadership is proposing, that some of the TDs should be elected by a similarly narrow electorate. Although at least councillors are in turn elected by the voters, whereas that cannot be said by those that select candidates at party selection conventions. And of course if the Fine Gael leadership had its way it would probably do away with selection conventions to and keep the decisions as to who made it on to lists to as narrow an electorate as they could control. Is Fine Gael (the leadership that is) trying to emulate the Kiwis, no they are looking for some big policy that seems radical but would in fact be a backward step.

    Plus the chances of doing it within 12 months is very slim, the proposed changes to go the people would be flawed and if Fine Gael lost a referendum so early in a Government it would be a disaster for them. And the reality is such a referendum probably would be lost. Voters would quite rightly fear proposals such as this aimed at taking away their say in how some of their reps are elected. Also people have an attachment to our history. They don’t necessarily want a New Republic, just a change in policies.

  12. ciancmurphy
    March 14, 2010 at 9:55 am

    I think we’ll need further Welsh polling to truly judge the success or failure of the reforms, but I take the point regarding the Report. With the proposals also including quotas for women I’m now becoming more convinced that there is Australian & New Zealand influence here. I agree that a 12 month turnaround from election to referendum is far too ambitious.

  13. Neil Maddox
    March 14, 2010 at 2:23 pm

    Would anybody agree that the introduction of a list system (however limited the proposal) would create a shift away from local mandates to national ones’? One of the difficulties with our political system, it seems, is that the ordinary T.D. can generate far more political capital for themself by focussing on local, and parochial issues, with far less return when focussing on a national issue. I saw a senior Minister speak a couple of years ago (under Chatam House Rules so I won’t identify) about the lack of incentive for an ordinary T.D. to engage in scruitny of European legislation, something time-consuming and ulimately unrewarding in terms of direct political return, i.e. votes. The same would surely apply to the scrutiny of most of the ordinary legislation that goes through the Dail. A list system may not be perfect and I would have to accept that it would be subject to cronyism within parties, but it would at least reduce the overreliance on personality politics at a local level, although they would still be a factor. My only difficulty with the proposal is that it seems piecemeal and too unambitous to have any significance. The idea of a national petition would also seem to tie into this idea. Is this not what constituency clinics are for? Well no frankly, they’ re not. 10,000 signatures (in the example given) is a national movement in my eyes. Why should they have to have their voices fragmented by petitioning at a local level? A mechanism for direct action should be welcomed.

    Fiona, is the abolition of the Seanad really so radical? Its constitutional powers might look meaty on paper, but, in relaity its not much by way of a constitutional stop-gap– not to mention how entirely undemocratic it is. If its only function is to “slow up” legislation and provide a safety-net for the mistakes of the Dail, then do away with it. Its far too expensive for that small function.

    Finally the reversal of the “Abbeylara” decision by referendum is surely a welcome development. The “right to a good name” under Irish Constituional Law is an overblown right and the Supreme Court has weighted it too heavily in its judgments. Senate Committees are part of the life-blood of the American political system; and parlimentary committees in the UK have proved very useful. They cut out the delay in hearings, not least because they cut out many of the lawyers. Matters are dealt with quickly and openly under the blanket of parliamentary privilege. There is not exorberant legal costs, or frequent delays because one of the parties has ran off to the Supreme Court on some obscure jurisdiciton point. Such committees would also strengthen the lot of the ordinary T.D. who could be given a real and powerful role in the investigation of a matter of major national importance. It is perhaps the last point that shows that this particular proposal is more radical than it seems.

  14. March 15, 2010 at 2:26 pm

    Neil, on the one hand I think that constituency work and the fact that in our system EVERY vote counts can result at times in a deficit of interest in legislation that is worrying. In some ways it sometimes strikes me that our legislature is not entirely comfortable with or has not fully internalised its constitutional duty to pass legislation that is compatible with the constitution. I also, as I said above, think that whipping and to some extent the fused executive/legislature makes rigour of debate and law-making very difficult. A number of scholars have suggested ways around this, and I think that things like a strong constitutional and/or human rights legislation-scrutiny committee would be one way that we might try to improve the quality of legislation. I don’t think the list system would necessarily improve that. In fact, my fear is that it would turn into a way of people who failed at elections being appointed. There is not necessarily a lot wrong with that IF those list names were approached as expertise bases as opposed to consolation prizes, but how do you ensure that? I think it’s very difficult (possible analogy here to Taoiseach’s appointments to the Seanad)

    I believe quite strongly that an upper house that is at least partially unelected is a very important brake on the government and an important venue for debate. I am not saying that the Seanad necessarily does that well, and I believe it ought to be reformed and made more democratic. But I do not subscribe to an absolute democracy=voting=majority approach to governance. In fact, I think seeing democracy exclusively in those terms is extremely dangerous. I just can’t agree with you that in a fused system like ours that can be said to be a “small function”.

    Agreed 100% re reversal of Abbeylara decision.

  15. Donal O'Brolchain
    March 23, 2010 at 7:57 pm

    @ F de Londfras
    “The Seanad is not only for slowing down (which is a very very important function as the sterling work of the (unfairly in my view) much maligned House of Lords demonstrated re control orders, judicial oversight etc) but also for expertise. If the political parties were more willing to put Senators on Cabinet and recognise
    the importance of expertise then it could be used to even greter effect.”

    @Neil Maddox
    “Would anybody agree that the introduction of a list system (however limited the proposal) would create a shift away from local mandates to national ones’? ”

    I challenge the views that
    1) our Seanad has ever slowed down any piece of legislation. It is in no way
    comparable to what I know of the House of Lords.
    2) the introduction of a list system would benefit us as citizens.

    see bextract below from my 1996 submission to the All Party Oireachtas Committee on the Constitution.

    “It is not clear how the changes suggested for our electoral system (eg. the
    mixed member system used in Federal Germany) will, on their own, do
    anything to improve the government and/or accountability and/or means of
    limiting the scope for excess by those in power.

    The mixed member proportional system gives huge influence to party leaders and officials in the placing of candidates on the national lists. This means more effective power for the centre, especially for party officials. Recent experience here (eg. candidates imposed on constituencies) suggests that this can be highly
    unacceptable to the local party activists and also to the electorate.

    4.1.12 Our Seanad offers some further insight into the effects of such power here.
    Local and national politicians/party members have total control over 90 per
    cent of the seats. It is not clear that they have used that power to bring new
    people into politics, successfully. When Garret FitzGerald appointed Senator
    J. Dooge as Minister for Foreign Affairs, it did not go down well with members
    of his own party. For most political activists, the Seanad lacks the democratic
    legitimacy that being directly elected to the Dail is deemed to confer on
    members of the Cabinet. It is not surprising that many see the Seanad as either
    a preparation for or a (temporary) retirement from the Dail.

    4.2 The Seanad
    4.2.1 Apart from specifying STV, the constitution does not specify how to constitute the electorate for the candidates on the vocational panels.
    4.2.2 The present system of electing Senators is badly skewed, as
    • six (10 per cent) are elected by graduates of only two of the many degree granting institutions in the state,
    • forty-three (over 70 per cent) are elected by an electorate that is biased in
    its relation to the total population.

    4.2.2.1 University Seats
    4.2.2.1.1 In 1979, a referendum cleared the way for altering the electorate for
    the university seats. Despite the fact that two new universities have
    been set-up since then, no steps have been taken to widen the
    electorate. Why are some Irish resident citizens – graduates of these
    and other degree-awarding bodies (eg. NCEA, DIT, University of
    London, Open University) not entitled to vote in Seanad elections?
    Why do some non-resident citizens have two votes in electing these
    Senators?

    4.2.2.2 Panel Seats
    4.2.2.2.1 Of the present sixty senators, forty-three are elected by national (ie.
    incoming TDs and outgoing Senators) and local politicians (ie.
    members of every council or county borough). As Table 2 shows,
    there is a serious imbalance in the number of councillors which
    represent each county or county borough area.

    4.2.2.2.2 Given that councillors form the bulk (883 of a maximum 1,109
    voters) of the electorate for over seventy per cent of the second
    house of the Oireachtas, how can the wide variation in population
    per councillor be justified? Why does Dublin have one-eight the V \ \ Q
    number of councillors per head that Leitrim has? £- ”-05″°
    4.2.2.2.3 In respect of Seanad elections, why should those living in
    • Leitrim (with the highest number of councillors per head of
    population) have almost four times greater weight than those
    living in Donegal; or
    • some counties (eg. Clare, Cork, Limerick) have almost one and
    half times the electoral weight of those living in adjoining
    counties (Kerry, Cork and Limerick cities); or
    * Dublin City (with the lowest number of councillors per head of
    population) have
    * only forty per cent the weight of the national average (1
    councillor per 3,993 people); or
    • less councillors per capita than its recently established offshoots
    of Dun Laoghaire/Rathdown, South Dublin and Fingal?

    4.2.2.2.4 In what way does this practice differ from that which existed in
    Northern Ireland local government when businesses had multiple
    votes based on rateable valuation?

    4.2.2.2.5 Is the failure to keep the number of electors proportionate to the
    population similar to the failure of government to keep the valuation
    of agricultural land up to date?

    4.2.2.2.6 As the judiciary found it unconstitutional to have wide variations
    between populations per TD, what would be the effect a constitutional case against the present system of electing most Senators?”

  1. March 14, 2010 at 7:47 pm
  2. March 15, 2010 at 8:33 am
  3. March 20, 2010 at 12:17 pm
  4. March 21, 2010 at 6:43 pm
  5. March 23, 2010 at 8:33 am

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