Watching the procedural trench warfare at Westminster over the last weeks, you cannot fail to be struck by the consequences of not having a written constitution in the United Kingdom.
To take a simple example, their hugely problematic Fixed Term Parliament Act simply could not have been enacted in Ireland.
Why not? The Constitution provides that the President must dissolve Dáil Éireann when advised to do so by the Taoiseach - except in the case of a Taoiseach who has lost the support of a majority in the Dáil when a dissolution may be refused in the President’s absolute discretion.
Our constitution only provides an outer limit to the life of a Dáil – seven years or such lesser term as may be fixed by law. And the present law fixes a five year term.
Likewise, a Taoiseach can only be appointed if Dáil Éireann has nominated him or her for appointment by the President. In the UK, the Queen chooses the Prime Minister by an unwritten convention, inviting a person from the largest party to form a government. Thus Boris Johnson was never actually chosen by a majority in the House of Commons.
The Dáil approves individual members of our government proposed for office by the Taoiseach. Not so in Westminster.
The infamous power to prorogue parliament vested in the Crown does not exist in Ireland. Each House of the Oireachtas decides on the length of its sessions and adjournments. Suspending sittings for political advantage against the wishes of parliamentarians (as recently invalidated by the UK Supreme Court) is not possible under our constitution.
More topical is the question of “absentee voting” in the Houses of the Oireachtas.
Article 15.11 of our constitution is very clear. Every question in either House must be decided by a majority of those of its members who are both present and voting.
So proxy voting is unconstitutional. Any attempt knowingly to vote on behalf of an absent member is therefore nothing less than an attempt to subvert the Constitution.
On every division, tellers are appointed. Where the vote is electronic, those tellers try to ensure that votes are only cast by members who are present. On walk-through votes, the tellers stand in the Tá or Níl lobbies and mark off those members as they pass through to vote.
Electronic voting does speed things up. But it also depends on trust. The tellers cannot oversee every hand on every button. That trust would be shattered if tellers cannot depend on the electronic record.
Likewise, standing orders of each House allow tellers to demand a walk-through vote as of right rather than accept the electronic voting result. Sometimes this right is used to ensure that a person locked out for a speeded-up electronic vote has a second chance to attend and vote.
Voting electronically for an absentee TD is a very serious matter. And it must be treated as very serious unless it can be shown to result from a bona fide mistake.
Bona fide mistakes can and do occur on every side of each of the Houses. It is quite easy to make a voting mistake. As a teller, I have seen members vote the “wrong way” simply by pushing the wrong button or by confusing whether a resolution phrased in the negative is what they had actually wished to support.
In cases of bona fide error, tellers readily amend and initial in manuscript the corrected electronic printout before the result is reported to the Chair for announcement.
The matter could be easily addressed by requiring TDs to remain in their designated seats for the one minute electronic voting period and storing photographic images of the deputies while seated with the result for comparison.
Micheál Martin was right to act decisively in relation to the Dooley-Collins matter. They have a case to answer. He was equally right to accept Lisa Chambers’ explanation of a bona fide error.
We should reject any suggestion of amending our constitution to allow distance or proxy voting in parliament. Public dissatisfaction with low attendance in the Dáil would be compounded if members were allowed to vote electronically from their constituencies or from ministerial offices or other places in Leinster House.
In 2018, the Citizens Assembly voted narrowly to amend our constitution to introduce fixed term parliaments. This was a classic case of a “solution in search of a problem”.
What is wrong with having flexibility in the lifetime of a parliament? What is wrong with giving the Taoiseach the right to request a dissolution of the Dáil and allowing the people to re-elect it? Why change that when the President has discretion to refuse a dissolution to a Taoiseach who has lost majority support and where there is a prospect that the Dáil will nominate another Taoiseach?
Look at Westminster, if you have doubts.
The Citizens Assembly also recommended lowering the age of eligibility to become President to 21. That notion was overwhelmingly rejected by the people– and rightly so.
I seriously question their other recommendation to lower the voting age to 16.
If 16 year olds can’t legally drive, buy drink, buy Lotto tickets, be bound in contract, or be named in juvenile courts, and are classified as child refugee applicants, it is very difficult to justify according them votes in referenda and elections. Nobody is suggesting lowering the general age of majority to 16.
Our constitution is a solid foundation for our democracy. It is not immutable; neither is it a test bench for faddish reform. Just as it prohibits absentee voting in the Dáil, it also avoids the constitutional chaos we are witnessing in Westminster.
There is real work to be done on real issues that affect our democracy. The Taoiseach should now deliver on his government’s clear, but shamefully abandoned, commitment to reform the system of electing the Seanad. And there is no excuse for not having the long-delayed independent Electoral Commission – except perhaps that the relevant department is also responsible for housing policy.
