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30/08/2024

Address by Michael McDowell to the Daniel O'Connell Summer School 2024

The Daniel O’Connell Lecture 2024

 

Address by Senator Michael McDowell

to the Daniel O’Connell School Cahersiveen

 

Friday 30th August 2024

 

It is customary to celebrate the memory of Daniel O’Connell “The Liberator” as a great Irishman who pursued his political beliefs by constitutional means and who pursued the cause of Ireland without recourse to political violence.  It would be churlish simply to regard O’Connell as a politician and popular leader whose career ultimately ended in failure. 

Having achieved Catholic Emancipation, he devoted his political energies to repeal of the Act of Union.  In doing so, he mobilised mass popular support for repeal but his movement which appeared to threaten the foundation of the union and the British ascendency in Ireland eventually came into conflict with the legislature at Westminster and the powerful political establishment which governed the United Kingdom of Great Britain and Ireland. His election to the Westminster parliament, while significant, ultimately produced no further significant advances for the cause of Irish nationhood or the end of the Union and the plain unvarnished truth is that Irish independence was ultimately achieved by violence rather than by strictly constitutional political activity.

 

The Health of Our Democracy

Two centuries after Catholic Emancipation and one century after the creation of an independent Irish State I think it is timely to consider the health of Irish democracy and in particular the dangers to the spirit of democratic politics that confront our parliamentary system today. It seems to me that our national parliament, the Oireachtas is in many ways failing in its role as the legislature of the independent Irish State.

Recent events including the two referendums held on March 8th 2024 need not to be forgotten but to be revisited in terms of parliamentary process. 

Our constitutional order likely vests in the People as the ultimate sovereign power in the Irish State the choice by referendum to accept or reject Bills initiated in Dáil Éireann to amend our Constitution. The parliamentary process that placed the two referendums before the Irish people for their judgement was totally flawed. 

Each of the referendum proposals in the 39th and 40th amendments to the Constitution Bills was guillotined through the two Houses of the Oireachtas allowing no scope for considered debate, no opportunity for amendment, and no chance for the members of the Oireachtas to tease out the implications of the proposed constitutional changes. 

Neither amendment was urgent in any sense.  No pre-legislative scrutiny of the proposals was permitted.  The constitutional, legal, and social consequences of the amendments were never carefully examined.

Worse still ministers actively misled the electorate in relation to the constitutional, legal and fiscal implications of the referendum proposals safe in the knowledge that the true situation would only emerge after the votes had been cast. 

 

The Unforgiving Whip System

At the heart of this malaise is the dominance of the Irish Executive, the Government, over the democratically elected members of our national parliament. This dominance takes the form of a whip system which, in Ireland, is one of the strictest and most unforgiving to be found in any liberal parliamentary democracy anywhere in the free world. 

As someone who supported and campaigned for the Repeal of the Eighth Amendment of the Constitution, I nonetheless regard with a certain degree of distaste and shame the manner in which members of Dáil Éireann who in conscience held the opposite view from mine were driven out of their parties and had political careers ended simply for standing up for their heartfelt beliefs. 

Why couldn’t conscientious objectors stand by their beliefs and principles without sacrificing their political careers? It was not even as if they had been elected on a platform to repeal the Eighth Amendment.

This raises the wider question as to why the independence of party members is so radically constrained in Ireland compared to the parliament at Westminster or to the Bundestag.  The German constitution, for instance, prohibits the coercion of parliamentarians to vote against their conscience. Why is it impossible in Ireland to accord even the slightest respect to the individual consciences of parliamentarians?

I fully accept that as a matter of pragmatism there must be a good degree of party discipline and coherence if effective government requires day to day support or acquiescence by a majority in Dáil Éireann to whom the government is accountable. But the degree of harshness in the Irish system is simply not needed. 

 

A New Political Culture?

The “confidence and supply” arrangement which enabled a Fine Gael/Independent minority coalition to govern Ireland from 2016-2020, did not result in political chaos.  For instance, the Occupied Territories Bill was passed by Seanad Éireann against the wishes of the Government without threatening the existence of the government.

Has not the time come for a new political culture to emerge in our national parliament – a culture which permits diversity and which encourages parliamentarians to keep the executive accountable rather than simply bow to its every demand.  Would the emergence of such a culture make Ireland ungovernable? I very much doubt it.

In early Sept 2013 I was honoured by an invitation to address the Daniel O’Connell summer school here in Cahersiveen. On that occasion, the speakers included my very good friend Mr. Justice Adrian Hardiman, Dr. Margaret MacCurtain and Noel Whelan.  How sad it is that Ireland has been deprived of these wonderful minds in the last decade.

 

The Proposal to Abolish Seanad Éireann 

On that occasion, we were in the run up to a referendum held in October 2013 in which Enda Kenny’s government were proposing to abolish Seanad Eireann.  I was a member of a small campaign group called Democracy Matters which was founded by Senator Feargal Quinn, Noel Whelan and Senator Katherine Zappone and myself.  My contribution to the O’Connell school that year was to lay out the arguments for retaining and reforming the Seanad.  Our slogan was “Open it, don’t close it”.

The following month the People of Ireland rejected the abolition proposal in what Enda Kenny then described as “a wallop” for his government.

 

Seanad Reform is Not a Threat

It is worth reminding ourselves that the Constitution circumscribed the powers of the Seanad so as to avoid the chamber turning into a rival legislature for Dáil Éireann. 

Article 23 provides that Dáil Éireann may, 90 days after any Bill is passed by the Dáil and sent to the Seanad resolve at any time in the following six months that the Bill be deemed to have been passed by both Houses of the Oireachtas.  The effect of Article 23 is to prevent the Seanad from impeding Dáil legislation where the Dáil considers that the Seanad is being unreasonable.

Article 24 even provides that the 90 day period normally accorded to the Seanad can be shortened or abridged in cases of urgency and immediate necessity for the preservation of public peace and security or in the case of domestic or international emergency. 

Article 21 provides that Money Bills dealing with budgetary matters can only be the subject of Seanad recommendations rather than amendment and only allows the Seanad 21 days to consider Money Bills and make any recommendations thereon.

Seanad Eireann is not permitted to initiate a Bill to amend the Constitution. 

Article 27 of the Constitution  provides a procedure under which the President can, if petitioned by one third of Dáil deputies and a majority of senators, put legislation of “national importance” which has been passed without the agreement of the Seanad before the people for decision by referendum. That power has never been used.

The concurrence of the Seanad is constitutionally necessary for the impeachment of the President or members of the judiciary.

Lastly and potentially of great significance the prior concurrence of both the Dáil and Seanad is also required if the Irish government intends to surrender its EU veto in areas currently requiring unanimity at EU Council level.  This means that for instance an Irish government cannot surrender our veto on taxation matters without the concurrence of Seanad Éireann or without an enabling referendum.

So it is clear that while the Seanad has some very important check and balance powers the Constitution envisages that the Government, and Dáil Eireann to which the government is accountable, remain in substantial democratic control of the nation’s affairs even if they do not control a majority in the Seanad on every issue.

All of these safeguards in respect of the supremacy of the Dáil underline the clear truth that there is no need for the Government to impose a rigid whip on a majority in the Seanad, or to guillotine legislation through the Seanad, or to dominate the electorate for the Seanad in the way it does today.  Ireland has nothing to fear and perhaps a lot to gain from a Seanad directly elected as to its majority, by the citizens of this country.

 

The Background to Seanad Reform 

The 2013 abolition proposal had been produced like a rabbit from a hat at a Fine Gael President’s dinner as part of Enda Kenny’s defence of his leadership which was then under challenge by Richard Bruton.  The proposal took the Fine Gael party by surprise and the arguments in favour of abolishing the Seanad mainly centred on a false claim that the referendum which would cost about €15 million would save an exaggerated annual sum of €25 million.

In the course of the referendum campaign, Enda Kenny cynically threatened that if his abolition proposal were defeated, his government would not reform the Seanad. That crude threat was intended to undermine the case for retaining and reforming the Seanad.

However, once the people spoke at the ballot box Enda Kenny changed tack and established a Working Group chaired by Maurice Manning, a distinguished political scientist, and former TD and senator and recent President of the Irish Human Rights Commission. 

The Working Group was tasked with making proposals for reform of Seanad Éireann and the way in which it was to be elected in future.  The Manning Report recommended that the majority of senators should in future be directly elected on a system of one person one vote, and that every citizen of Ireland should be entitled to register as a voter in one of the five vocational panel constituencies in the same way as university graduates are entitled to vote for the six university seats. 

The present electorate for the panel constituencies which consists of Oireachtas members and county councillors should, the Manning Report recommended, only elect 13 out of the 43 vocational panel senators.  That would have resulted in 36 of the 60 Seanad seats being directly elected by citizens including the 6 university senators. None of the foregoing would have required a further referendum.  The Manning Report was published in 2015, a year before the general election of 2016. 

In 2016, the outgoing FG-Labour coalition was, after a protracted period of negotiation replaced by a minority Fine Gael government including two independent TDs one of whom was Katherine Zappone, supported by a confidence and supply arrangement with the Fianna Fail party which had opposed the abolition referendum proposal in 2013. The outgoing Fine Gael labour government had not made any commitment to implement the Manning Report. The leader of Fianna Fáil, Micheál Martin, had sharply criticised Enda Kenny for establishing the Manning Working Group as a “box-ticking” exercise.  He said it was very disappointing to learn that the cabinet which commissioned the report had not even discussed it.  Mr Martin said, “they clearly want any substantive reform kicked off until the next govt, they did not want to talk about anything of significance.  We need to bring in direct elections for the Seanad but it is now very unlikely there will be any reforms before the next election”.

 

Enter Leo Varadkar

Although the new Programme for Government adopted in 2016 committed itself to pursue implementation of the Manning Report, no steps were taken in pursuit of that commitment.

Enda Kenny was replaced as Taoiseach by Leo Varadkar in 2017.  When presses to deliver on the governments commitment to reform the Seanad, Mr Varadkar said “the programme for government commits us to pursue the implementation of the [Manning] Report I am happy to do so”.  He stated that a committee would be established with an eight month mandate to consider the Manning Report and to develop specific proposals to legislate for Seanad Reform. The Committee would be comprised of Oireachtas members with the assistance of outside experts. He stated that the proposed timeframe of eight months was to put in place changes that would be “used to elect the Seanad after next”. He stated that “there will be universal suffrage using the panel system allowing people to choose which one suits them best”.

He envisaged a major public information campaign and stated that “ people will have to decide which panel they want to register for, with the most important principle that you can only have one vote, so you can only join one panel”.  

He stated that the selection of the Cathaoirleach of the Seanad should be done by secret ballot in the same way as the Ceann Comhairle is selected in Dáil Eireann.

All of these commitments were made in his first address as Taoiseach to the Seanad on the 1st of February 2018.

 

The SRIG Report

In due course, the all-party Seanad Reform Implementation Group was established in May 2018 and met on twelve further occasions, concluding its work on the 11th of December 2018. The Implementation Group elected me as its chairman and prepared its report which was forwarded to Taoiseach Varadkar on the 19th of December 2018.  That Report included a draft Bill, the Seanad Bill 2018, with 100 sections and 5 schedules.  The Bill was drafted by an expert Parliamentary Draftsman, Dr Brian Hunt whose services were paid for by the Department of the Taoiseach.

You can imagine my shock and dismay when two months later I sought a meeting with the Taoiseach to discuss progress on the Bill. I regret to say that I was now told in private that, as a former supporter of abolishing the Seanad, he had no interest whatever in introducing the Reform Bill in Dáil Éireann, and had no intention of committing his Government to supporting it. He said that if the Bill was introduced by the opposition, he would allow a free vote on the matter as far as his party was concerned.  This from a man who denied a free vote to his own TDs on the Repeal of the Eighth Amendment.

That revelation shocked me greatly as the All-Party Implementation Group which I has chaired had been established, I assumed, in good faith, and the reform Bill had been drafted with the financial support of the Taoiseach’s Department.

 

Reform Cynically Shelved

In 2020 a general election took place which resulted in the replacement of the outgoing minority government by a new Fianna Fáil-Fine Gael-Green coalition with a rotating arrangement for the position of Taoiseach. 

In the negotiations for the FF-FG-Green coalition programme for government, the Green party unsuccessfully sought implementation of the Seanad Reform Bill.  However, due to Fine Gael opposition, the most recent Programme for Government omitted any reference to Seanad reform unlike the programme for government of the outgoing minority government.

On the 28th of September 2023, Leo Varadkar now re-elected as Taoiseach addressed the Seanad and made absolutely no reference to the issue of Seanad reform.

On that occasion I publicly confronted him with his disgraceful behaviour, which I stated: “marked the lowest point of political cynicism that I encountered since being elected to the Oireachtas in 1987”.

I told him that “there will be a political price to pay for reneging on the political promises you made to us in this chamber on the 1st of February 2018”.

  

Worse Was to Come

But the sorry, cynical saga does not end there. The Manning Report also recommended that Seanad Éireann should be given an enhanced role in relation to the affairs of the European Union and should interact with the EU legislative process, including scrutiny of legislative proposals at European parliament level. On foot of that proposal, the Government approved the formation of a standing committee of the Seanad to scrutinise the progress of EU legislative proposals with power to draw the attention of sectoral Joint Oireachtas committees to forthcoming EU legislation likely to be transposed into Irish law by ministerial Statutory Instruments.

The Committee was duly formed but has now been informed by the Government that it may not see any proposed Statutory Instruments transposing EU law into Irish domestic law until those Statutory Instruments have actually been signed into law by Ministers. This stance of the government is claimed to be based on advice from the Attorney General that all Statutory Instruments coming from the Parliamentary Counsel section of his office are legally privileged and must be kept secret up to the moment of ministerial signature. 

That proposition is legal nonsense. Any minister is entitled to circulate draft Statutory Instruments for consultation with affected bodies in wider society. 

But this most modest implementation of one just proposal of the Manning  Report has been cynically nullified by ministers opposed to any transparency in the decision-making process a s to how EU legislation is transposed into Irish law.

Then, in May of this year the Seanad Committee on Procedure Privilege and Oversight cynically scrapped proposals to permit the election of the Cathaoirleach and Leas Cathaoirleach of Seanad Eireann by secret ballot in the same manner as the positions of Ceann Comhairle and Leas Ceann Comhairle are filled in the Dáil. Detailed amendments to the Seanad Standing Orders to permit a secret ballot election had been prepared in the course of a year long process to enable the next Seanad to elect its Chair and Vice-Chair by a secret ballot free from the ability of government whips to decide the issue. At its meeting in June, the government whips directed their CPPO members without any explanation or discussion to vote down the reform.

The intention is clearly to enable the Government of the day to choose and impose their candidates for the positions of Chair and Vice Chair of the Seanad. It also flies in the face of the commitment given by Taoiseach Varadkar to the Seanad on the 1st of February 2018.

An Issue for the Electorate

When you reflect on the contribution made by many senators elected by the university panel voters, it becomes clear that Irish democracy has nothing to fear from independent voices participating in the Oireachtas who are not subject to a party whip.  I instance senators like Feargal Quinn, Mary Robinson and David Norris who like many others made hugely valuable contributions in the Irish legislature.

On the 15th of March 2024, Leo Varadkar, as Taoiseach, wrote an article in the Irish Independent reflecting on the double defeat of the 39th and 40th Amendment Bills in the referendum held on the 8th of March. He wrote the following:

“I have also been on the losing side in referendums: abolition of the Seanad and Oireachtas enquiries. Disappointed at the time, I made recriminations, I came to realise that the People were wise and made the right decision. The Seanad provided a check and balance on the Dáil that otherwise would not exist.  We’ve seen the value of that in recent months”.

If he was referring to the role played by a small number of independent senators in the referendum campaigns, his statement seems to ignore the fact that he had guillotined the Seanad debates on the Bills and imposed the Government party whip to bulldoze the ill-fated amendment Bills through the Seanad without any amendment or adequate debate. 

His article preceded his trip to Washington for St. Patrick’s Day.  Five days later, on the 20th of March he announced that he was standing down as Taoiseach.

We are now, apparently, in the run up to another general election in which opinion polls predict that a likely outcome is the formation of a Government supported by independent TDs.

If the next Dáil is elected with that outcome, those independent TDs should insist on a relaxation of Ireland’s savage whip culture and on the delivery of the reforms of Seanad Éireann as promised by the Manning Report and the Report of the Seanad Reform Implementation Group, on which the Government made solemn commitments that were cynically dishonoured.

The Irish people deserve nothing less.


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