The proposed reforms of the Seanad need to be much more carefully considered and should be preceded by major Dáil reform, writes Jim Duffy
When de Valera abolished the Free State senate in 1936 he said that he opposed second chambers. Yet he included one in his new Constitution in 1937. That U-turn he credited to a minority report by a commission set up to advise on a second chamber.
That report, and de Valera's vision for the Seanad, were shaped by Pope Pius XI's championing of vocationalism in his papal encyclical Quadragesimo Anno. So 43 of the 60 seats were to be filled from vocational panels.
But, as elsewhere in the Constitution, de Valera created a series of dud powers designed to make the institution look impressive in theory but to be unusable in reality.
"Dev's Duds" stretched right to the manner of election of those 43 senators. For, while he allowed vocational organisations like the Royal Irish Academy, the Law Society, the national teachers and others to nominate candidates, he cynically denied them any role as voters, creating instead an electoral college made up of local and national politicians.
The result exposed the sham behind the House's supposed vocationalism. For the TDs, senators and councillors chose other politicians for political reasons that had nothing to do with vocationalism. Some were defeated TDs. Others, potential ones. The House became the home of the politically hopeful and the hopeless.
The farce of "vocationalism" was shown in the very first Seanad election, when a host of distinguished vocational candidates, many internationally renowned, failed to get a single vote. The "nul points" candidates included former Free State Cathaoirleach Westropp-Bennett, ex-High Court judge W.E. Wylie, the duc de Stacpoole, Professor William Maginnis, and, most spectacularly, Sir John Keane, a former Free State senator not thought worthy of Seanad membership by the electoral college, yet appointed to the Council of State by Presidents Hyde and O'Kelly.
Of course, many distinguished people have served in the Seanad, including Mary Robinson, Noel Browne, Douglas Hyde, Jim Dooge, Seamus Mallon, Frank MacDermott, Maurice Manning, David Norris, Shane Ross, Ken Whitaker and others.
But, with rare exceptions, the high flyers didn't come from the vocational panels but from the Taoiseach's nominees and more especially the university panels, the six university seats almost invariably providing the finest senators that earned for the Seanad its reputation as a better chamber, with a higher standard of debate than the mundane, pedestrian Dáil.
But then, outclassing one of Europe's least effective lower houses is hardly difficult. Which, in turn, raises the first big problem with the proposed new Seanad reform. A clientilist-orientated multi-seat election system, crushing government dominance, laughably inadequate rules and a tradition of chairmen who protect governments, not the rights of backbenchers, make it clear that the big problem with our parliament is our Dáil.
Only when you get the representative chamber working right (or at a minimum less badly than the current farce) can you hope to know what sort of revising chamber you need, and who you need in it.
Problem number two: the reforms misunderstand the constitutional position of the Seanad in our parliament and how it works.For example, it is not the vocational nominators that are the problem, it is the politician-dominated electoral college. Yet the nominators face the axe.
Similarly, while changing the university panels makes sense, you have to remember that it is they who have consistently provided the best senators. Trinity College may be over-represented, but no constituency since independence has elected as many brilliant parliamentarians. Axing or reducing separate Trinity seats would be a parliamentary calamity.
But the most dangerous idea is rotating half-Seanad elections independent of Dáil elections. Ireland, probably luckily (as fixed-term parliaments cause more problems than they solve) lacks a fixed term Dáil. Add in a couple of snap Dáil general elections (as in 1981-82) and out of sync Dáil and Seanad elections could leave the Oireachtas in almost constant election mode.
And if, as is possible, it happened to be mainly the Government's Seanad seats that were up for grabs in the next half-Seanad election and a couple were lost, the Government could lose control of the Seanad.
And yes, that does matter. Dev's dud powers are duds because he constructed a Seanad in which (except in a scenario that has occurred only once) governments have a guaranteed majority, thanks to the Taoiseach's nominees. But an opposition-controlled, increasingly politicised Seanad could cause chaos, for example, by using the power, with the participation of one-third of the Dáil, regularly to petition the President to put sensitive Government bills into limbo for 18 months while they were sent to the people in a referendum.
Or row with the Dáil over what Bills are Money Bills, forcing the President to use her current "dud" power to appoint an umpire between the Dáil and Seanad (called the Committee on Privileges).
The Seanad is designed to be revising chamber, not a representative chamber. Its job is to review the laws put forward by the representative chamber, give advice, but if necessary give way. The Seanad needs reform, but the Dáil needs it far more and first, with Seanad reform following it, when you know what job you need the upper house to do.
The wrong changes, however well-intended, could turn the Seanad from a weak revising chamber into an unmanageable, confrontational, increasingly political one akin to the Australian senate. And Dev's Duds, once a set of comically worthless sham powers possessed by the President and Seanad, might suddenly come alive and produce nightmares for future governments.
Jim Duffy is a commentator on constitutional affairs.