Tuesday, 8 October 2013

The Senate survives

As someone who was never going to vote against the abolition of the Seanad regardless of who was in favour or against, obviously I am going to gloat here. Especially as it is at the expense of this luadaramáin:

For the benefit of my readers who neither understand Irish nor read Flann O'Brien/Myles na gCopaleen, a luadaramáin is a complete fool and the only reason is that I am not thoroughly ashamed of saying this is because I know that I didn't vote for his party nor their partners in government in the Labour Party. But I am not here to rant against Enda Kenny as there are plenty of others who are doing that now, not least within his own party. I am happy to leave them to it.

When we consider the Senate as a body, we need to think of two very different men, both of them capable leaders (whatever one's opinion of some of their policies):

On the left Seán Lemass and on the right Éamon de Valera

The Constitution of Ireland was enacted on 1 July 1937 by plebiscite and came into force on 29 December 1937. The constitution was principally informed by Anglo-American parliamentary practice and created a tri-cameral legislature (Oireachtas) with a president, senate and house of representatives. Be careful of the first one. At present, the president is the head of state, but he is not named as such in the constitution. For the first decade of the constitution’s operation, Ireland was a constitutional monarchy and the country only became a republic following the enactment of the Republic of Ireland Act in 1949. Then the position of head of state was vested in the president. Should the Oireachtas be minded to revert to the original position and restore the de facto British monarch to the position of head of state; or invite the de jure British monarch in Munich to come over; or invest The O’Neill or The O’Connor Don or The O’Brien of Thomond in the High Kingship, there is nothing in the constitution to prevent them from doing so. I should stress this would not abolish the presidency; the president would remain with all his current functions and powers, with the exception of sending and receiving of ambassadors. A monarch would be confined to this function and would be very much like the ceremonial monarchs in Scandinavia or the Netherlands.

In spite of the foregoing, there is a lot in the constitution and it proves the undoing of politicians from time to time. First of all, it makes the Supreme Court very powerful. What does the Irish Constitution say? Whatever the justices of the Supreme Court say it says. In the early years of the constitution’s operation, this didn’t make much difference as courts here tended to rely on English precedent (I deliberately use “English” rather than “British” here; Scots Law is civil law). But eventually, US precedent became more and more common; particularly with the careers of jurists such as Cearbhall Ó Dálaigh and Brian Walsh. This made things most inconvenient for the Government, but also for several other agencies, from An Garda Síochána to private industry, as the activist justices found all sorts of rights in the document.

Cearbhall Ó Dálaigh, Uachtarán na h-Éireann 1974-76; Príomh-Bhreitheamh 1961-1973

Anyway, you might ask what’s positive about the Irish constitution. A lot. We tend to forget that independent Ireland, as exists at present, is the one state that came into being after the First World War which has maintained its democracy since then, notwithstanding the continued occupation of the north-eastern six counties and British tolerance of a discrimatory regime there which created the infamous troubles of recent decades. Our constitution is the oldest substantially unaltered written constitution in Europe and it is also the oldest written constitution anywhere which includes fundamental human rights in the original document. The Irish constitution was used as a model in the drafting of a number of other constitutions such as the German Federal Constitution and the Indian Constitution. India is the world’s largest democracy and some of our historical experience is similar. When Australia considered becoming a republic, the Irish model was one of six cases studied by the Australian authorities when they considered becoming a republic (a little ironic given the foregoing). These are things few Irish people are aware of, but give a lot of reasons to take pride in. In addition, the Constitution of Ireland, whether in Irish or English, is written in remarkably clear language. You don’t need a doctorate in jurisprudence to understand it. I am told that one of the few other clear constitutions is that of the Fifth French Republic. Clarity is rare in legal texts.

So why aren’t people aware of this? One reason is the historic perception of Éamon de Valera. I don’t object so much to de Valera being misunderstood as wilfully misunderstood. Of course the problem is not so much Dev as good old Hibernophobia, which seems to infect the greater proportion of this country’s chatteratti. This is true of the media and academics here and particularly manifests itself in hatred of Irish nationalism and Catholicism. There’s no great affection for other aspects of Irish culture either, but folk music and Gaelic games are far too popular to dislodge at the moment. Don’t laugh too much – these are two forces Ireland has to counteract globalism and we need any of these we can get. Anyway, the Constitution is suspect for these reasons:

In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred,

We, the people of Éire,

Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial,

Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation,

And seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations,

Do hereby adopt, enact, and give to ourselves this Constitution.

It is easy to see how this preamble is a red rag to a bull. The problem is allowing this anti-Catholic bull loose in a china shop. The case in point is the abolition of the Senate. There is a great deal of cynicism about the Senate, but very little consideration was given to what the Senate actually does. The fact that all political parties have abused the Senate by electing would be deputies or retiring deputies or deputies between terms is not an argument against the Senate but against its electors, which can be changed by statute law. The fact it was sometime in the 1960s that the Senate last held up a bill for three months is not an argument against the Senate either – the middle house regularly sends revised legislation to the bottom house. Indeed, there is more of a legislative character to the Senate than to the Dáil. No senator has been a minister since James Dooge in 1981, though the Constitution allows two to sit in any cabinet (though they may not be Taoiseach, Tánaiste or Minister for Finance). Most importantly, Article 27 provides an explosive power. Under Article 27, a majority of senators (30 members) and one third of Dáil members (at present 55) may petition the president to refer a bill enacted by Dáil and Senate to the people. This has never been used, but it is a very useful constitutional safeguard which I would not be willing to see go.

The campaign in favour of abolition emphasised the cost of the senate – stated in posters to be €20 million annually but found in reality to be more like €5.6 million and the fact that many other smaller jurisdictions have unicameral legislatures. Politically, Fine Gael, Labour and Sinn Féin were on the same page, with Fianna Fáil and a variety of independents opposing abolition. The media were relatively mute. Polls strongly suggested that abolition would carry. In the event, the public decided otherwise. Which impressed me greatly. The Irish people made a wise decision. Right now, everyone is talking about Senate reform. But a lot of the talk revolves around further constitutional change. Statute law provides a few solutions. Firstly, Dáil and Senate elections should take place on the same day. This way, there will be no second chance or reducing the middle house to a substitute bench between matches. Secondly, the constitution was amended in 1979 to allow graduates of other institutions in the state to vote in the university constituencies, but no one has acted to extend the constituencies which leaves many thousands of graduates disenfranchised. For now, my final point is that the vocational panels should also be open
to a popular vote and this should only wait until the next general election. But as in all matters, constitutional law should never be considered until all other options are exhausted. This is the fatal mistake the abolition made in putting it to the people first. But nobody expects someone like Enda Kenny to know any better.

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