Fine Gael’s New Politics and the Abolition of the Seanad
Fine Gael’s New Politics proposals include a proposal to abolish Seanad Éireann and move towards a unicameral system of parliament. In this post I want to express some concerns, based firmly in a human rights perspective, about this proposal. First of all we should note that the Seanad, or upper house, is by no means a perfect institution. In fact, there are many things that are objectionable about it including the means by which it is populated. However, for the reasons that I outline below, I am not convinced that abolition of the Seanad is the way forward or that Fine Gael have made out a strong enough case for this kind of momentous constitutional change. I have identified five primary claims in New Politics for the abolition of the Seanad and I consider these claims, and their merits, after the jump.
Claim 1: We have too many public representatives
The document starts its claim for a unicameral legislature by arguing that, on a per capita basis, there are too many public representatives in Ireland. It claims, on p. 11, that “the principal reason for Ireland’s over-representation is its two-chamber or bicameral system”. Hmm, well that’s one way of looking at it. Another is to say that ‘the principle reason for Ireland’s over-representation is the failure to ensure appropriate membership numbers in the Oireachtas as a whole’. It goes on to say that “If one ignores the Seanad and looks solely at the Dáil, particularly if the number of TDs is reduced by 20 as Fine Gael proposes, Ireland’s representation is in line with countries that have a similar population”. True, however that if needs some justification which essentially comes from the further claims considered below. The claim that we are overrepresented appears to be based on a comparison with Finland, Denmark, Sweden and New Zealand. As far as I can see there is no reasoning for why these states are appropriate comparators. I imagine it has something to do with size, but it’s never made clear.
Claim 2: Other small, unitary states don’t have bicameral legislatures
The report then goes on to note that Ireland is the only unitary (i.e. non-federal), small state in Europe to have a bicameral legislature. To be fair this is merely a partial claim because the paper goes on to say this is driven by three factors that also apply in Ireland (claims 3, 4 and 5 below). However, I wanted to note this separately because it causes me some concern that the report uses comparative experience extensively as a method of arguing in favour of constitutional change but without properly explaining why the jurisdictions selected were selected over others or taking into account the differences in political and constitutional structures between the jurisdictions. From a methodological perspective does it make sense, for example, to say that unicameralism is the same in every jurisdiction? Or is it necessary to place the unicameral system within its broader context including, especially, whether the legislature and executive are fused in the jurisdiction in question? In my mind the latter is preferable and, in fact, in the absence of that I find it hard to accept the comparative arguments because their value in real terms can not be properly ascertained.
Claim 3: Constitutional theory has moved beyond bicameralism
Now we come to what I would consider to be the more effective part of the paper. In it the claim is made that constitutional theory accepts that a move to unicameral systems can be effective if it is accompanied by checks and balances. I think this argument is very important and in fact lies at the heart of convincing me that unicameralism can work. It is true that improving the systems of checks and balances in parliament is important to ensure that the legislature can not do as it wishes without scrutiny or without a braking mechanism. My difficulty with the proposal here is that I am not convinced that a system where the government is part of, and usually controls the majority in, the legislature can in fact provide proper checks and balances from a rights protecting perspective. Should a country be swept up in a kind of moral panic (think organised crime, head shops and so on) will the committee system—which is inevitably political—really be able to act as an effective brake on government action? When opposition becomes politically disadvantageous because ‘the people’ desire a certain outcome, even if that outcome is dangerous from a human rights perspective, can even the super-weighting of opposition votes work to force some kind of principled and rights-based sensibility onto the system? I simply don’t believe that it can. The fact that the document does not include a proposal for a rights scrutiny committee (although it does seem to envisage strengthening the hand of the Irish Human Rights Committee, which is to be welcomed) adds further to my concern here. The fact that it makes no reference whatsoever to reforming or rethinking the policy of whipped votes is simply incomprehensible.
I am not saying that the Seanad is perfect at this role or is apolitical. But an upper house can, in my view, be more effective in terms of checking state power than can a lower house even where there are extensive checks and balances. That upper house may not succeed in forcing rights-based change to proposals, but it can force the debate and force government justification in a way that unicameral systems, in my view, often can not. In some cases, as the House of Lords in the UK shows, it will succeed in making legislation ‘less bad’ from a rights perspective than would have been the case in a unicameral system. The answer, to me at least, is clear: reform and not abolition is the way to go.
The document goes on to say that there is a larger difficulty here with making the Seanad effective as a checks and balance mechanism and that is that if it elected it will be too political to be effective and if it is not elected it will be too undemocratic to be legitimate. Ergo abolition. Let me unpick this a little. First of all abolition is not the only answer to this alleged quandary: how about a mixed system—partially elected and partially appointed? Secondly this claim undermines the paper’s earlier claim that parliamentary mechanisms can be effective as, of course, parliament is elected (apart from the proposal for the 15 ‘list’ TDs) and therefore political, so how could parliament be an effective checking mechanism? Thirdly the claim as to legitimacy is overly simplistic. Legitimacy in terms of representativeness is only one way of thinking about it—legitimacy of process and outcome must also be taken into account and, in my view, unicameralism causes difficulties of process that can undermine the quality and justice of outcome (i.e. quality of legislation) and thereby call the entire legislative system’s legitimacy into effect. Furthermore this claim is overly simplistic because it conflates ‘democratic’ and ‘elected’. Democracy is about more than elections; it is also about the extent to which democratic principles are taken seriously into account when producing policy and law. Given what I wrote above regarding my concerns about the lack of effective checking systems if we move to unicameralism my view that, in fact, an Oireachtas without an upper house is more undemocratic than with it should come as no surprise.
Claim 4: Historical justifications no longer hold
The document goes on to claim that the historical justifications for the Seanad no longer hold. On p. 12 it says that the Seanad was intended “to allow for Southern Unionist representation in the Irish Parliament”. It was also intended to allow for vocational representation and can in fact act as a site of gathered expertise that can bring important perspectives to the law-making process. I think that it doesn’t always succeed in this, but that is partially because of selection/appointment mechanisms. I don’t however think that the idea of an upper house to, inter alia, ensure representation of certain disenfranchised minorities and to increase expertise levels is objectionable. I would prefer to see Fine Gael think more imaginatively about this. How about, instead of thinking about the minority of concern in 1919 and 1937, we think about marginalities of concern now: members of the Travelling Community, women, transpeople, immigrants, asylum seekers etc. Maybe there is a way to make the Seanad a body that will in fact enhance democracy in Ireland and not to dismiss it as inherently anti-democratic (a claim that, in any case, I do not fully agree with as considered above).
Claim 5: Second houses are very difficult to reform
I’m afraid the reasoning on this is extremely weak within the report. On p. 13 it says that upper houses are very difficult to reform by reference to the following ‘reasoning’:
Twelve reports have been published by committees of the Oireachtas on Senate reform in Ireland – ten since the adoption of a new Constitution in 1937. Yet the Seanad has not been reformed in any significant way.
Of course, this is not evidence that upper houses are difficult to reform. It is merely evidence that the Seanad has not been reformed. Without exploration of the reasons why these reports were not acted upon I don’t think this can be taken seriously at all.
In my view the case made out in New Politics for the abolition of the Seanad is a weak, although well-meant, one. I am strongly of the view that the Seanad as it stands needs reform. It needs to be at least partially directly elected; the appointments process needs major overhaul; it needs increased power in law making (which probably could not come about without at least some directly elected representatives). This is the bare minimum that is required. There are, as Fine Gael notes in the document itself, 10 post-1937 reports on Seanad reform. I suggest abandoning the abolition movement and refocusing on those reform proposals instead.