Seanad Éireann - Volume 149 - 30 January, 1997
Constitutional Review of the Seanad: Statements (Resumed).
Ms Gallagher Ms Gallagher
Ms Gallagher: This is a complex issue. If one looks at the composition of the Seanad and the system of election, there are four main areas to be considered. The principal area of concern is the basis on which Senators are elected or selected, the second is the cycle of renewal, third is the size of the Seanad and the fourth is the powers of the Seanad.
The size of the Seanad, with its 60 Senators, is adequate in terms of the size of the population and the Dáil. The system of selection is critical to this debate. It is a complex area because there are eight potential processes of selection for Senators. Selection can be made directly or indirectly by election, indirectly by councillors or regional bodies, by vocational groups, by the Lower House, through co-option by colleagues, through heredity as in the House of Lords, by appointment and by ex officio membership. The range of combinations of those processes could be endless.
We need to change the current system. I canvassed throughout the country during the last election and not once was I asked about policy or issues I would like to address in the Seanad. That is a sad reflection on the system. I do not blame councillors for that because they know little about what happens in the Seanad. It is important for councillors to have a better link with central Government but I do not know how that can be achieved. We must also look at improving local democracy when we talk about improving Seanad representation. I am also concerned that one can be elected to the Seanad, as was mentioned earlier, by virtue of the number of GAA tickets one can dispense. That is not a good reflection on the House and in the long run damages us because individual Senators are capable and have diverse qualifications and expertise. A better system of selection or election would serve us better.
I do not favour selection by regional bodies because this country does not have a proper regional structure. It might be considered if there were strong regional structures. Devising elections on the basis of the European Parliament constituencies might be an option as it is important that Seanad representation recognises the fact that certain areas of the country might not be as well represented in the Dáil as they should be. This might apply to places such as the west of Ireland which warrant positive discrimination in terms of membership of this Chamber.
We should examine the current selection process by panels representing vocational groups. The system has not worked as intended. It is agreed that the concept of the Seanad representing the vocational interests of people who otherwise would not be represented in the Dáil is popular. In addition, it is important, in terms of  reviewing legislation, that expertise be brought to the consideration of various categories of legislation, complex as they are. In that sense the Seanad could fulfil that role very usefully. It has also been argued that as the bulk of the legislation which affects the citizens of this country comes directly or indirectly from Brussels it warrants greater examination. All too often statutory instruments are introduced virtually unnoticed even though they affect us daily. The role of the Seanad in reviewing European legislation is worth considering.
Our MEPs are at a disadvantage because they have no forum to which they can report on the work they do in Europe. The Seanad could have a role in this regard by allowing MEPs to sit and participate in the workings of the Seanad without according them voting rights. This would be particularly appropriate if it complemented a future role for the Seanad in reviewing European legislation. If we adopt that role we must allocate places in the Chamber to MEPs to participate in debates.
The public regularly questions how decisions are reached. Cabinet confidentiality might have an influence on that attitude. Another factor is the PR voting system which puts TDs under so much pressure they are inclined to rush legislation through the House regardless of whether it is valid. It is therefore necessary that any perceived or real democratic deficit should be addressed in the Seanad. How that can be done in terms of electing its Members is a difficult problem to which I cannot offer a definitive response. However, there is a need to look again at how decisions are made at Cabinet and in the Dáil and at giving such decisions further deliberation in this Chamber. That would be an important consideration with regard to the future role of the Seanad.
The concept of corporate representation in terms of vocational panels is, I believe, only practised in one other state, the free state of Bavaria. That state has ten functional areas and a six year term, with one-third retiring every three years. The idea of a fixed term for Senators is good; it would impose a distance between the Dáil and the Seanad which might appeal to some, although not to others. The fixed term combined with rotating membership through retirement is a good idea that is worthy of consideration.
The Labour Party, in the course of the debate on this issue in 1922, was the first party to raise the concept of vocational representation in the Seanad. Mr. de Valera accepted it in 1937 because of its popularity in Catholic teaching at the time. It is still a popular concept but the problem is how to implement it. At present certain groups have nominating rights and many of them are out of date, if not obsolete. Other groups which should have nominating rights on the same basis do not have such rights. Even if we do nothing more than tinker with the system, that issue must be addressed. If the Seanad should represent those who would not otherwise have a  voice, in terms of the expertise they might bring to legislation, or minorities within our society, we must look at broadening the number of panels involved and reducing the number of Members representing each panel.
I favour the right of the Taoiseach to nominate Senators being transferred to the Head of State. However, there are other options in terms of varying the numbers involved. It is essential to achieve a balance between the political and vocational aspects of the House. How can that be done? We have blatantly ignored the vocational aspect of the House by electing politicians. There is a benefit to be gained from having both.
As I understand it, this was proposed by the 1959 Seanad Electoral Law Commission which sought to create a balance between political election and vocationalism. I believe their suggestion was for 30 politically elected and 30 vocationally elected or nominated Senators. It is worth considering whether the right of the Taoiseach or the head of State to nominate the balance of power in the Seanad should be confined to political people. There should be more scope to give representation to those involved in vocational capacities.
It is difficult to suggest that people can be truly independent and non-political in that role. The nature and history of this State means that everyone is political to an extent. I would not support Senator Ross's idea of non-party members, that in itself is anti-democratic. The fact that members of the Defence Forces cannot be members of political parties is a nonsense. Everyone has a political persuasion and there is no point hiding that fact. These people deserve the right to vote and represent themselves politically; that is their constitutional right.
We need to look again at the powers of the House. A chamber with no clout will be ignored. There must still be a balance between the traditional separation of powers between the Legislature, the Executive and the Judiciary. It has been suggested that the Seanad might be given a veto over judicial appointments. This is worth looking at as it would give this House some say in that area.
I cannot give a definitive response as to whether we should have similar powers to the US Senate which operates as a forum of inquiry or the Italian Senate which can make or break governments. It is dangerous to go overboard in terms of executive powers. If one creates an ongoing conflict between the two Houses and the Executive it would make governance of the country quite difficult. However, there may be issues which warrant additional address in this Chamber in terms of executive powers.
We should have more legislative powers. The fact that we can only veto legislation for 90 days makes this House somewhat irrelevant. At present, because of the balance of power in the House, there is a little more scope in terms of what can be achieved but the Government will always have the majority. We cannot deal with money or constitutional Bills, and most of the  Bills we deal with are initiated in the Lower House. This leaves us with very little clout. This House has a great deal to contribute and if it were redefined in terms of the expertise which could be represented here it should be given greater legislative powers. Only by achieving this will we arrive at a proper balance between the two Houses. This would be an advantage to democracy.
This House has a role to play in terms of secondary legislation. This is an area which could be better addressed in the Seanad. The notion of our initiating more legislation is also very worthy. It is difficult to know what would be achieved by our being able to veto legislation for a longer period. There are areas of legislation that we should be able to veto per se. This would have to be considered in terms of the make up of the House. However, if the Seanad possessed a greater expertise in certain areas, there is no reason we should not have such a veto on legislation coming from the Lower House. These are the issues which we need to address in this and future debates. There is no getting away from the fact that if we as Senators bury our heads in the sand we will find one day that the decisions were made for us.
We are not being as effective as we could be. It is important that we have an effective second Chamber. There must be balance between this House, the Lower House and the Executive but the need for a second Chamber is beyond question. The issue is how we can construct our operations to make ourselves more effective. Unless we confront this we will become irrelevant to an even greater number of people than is the case at present.
I do not blame Senators for this state of affairs. The media fail to cover the work of this House. We have a superior range of debates than the Lower House and this warrants greater recognition, but, in the long run, a chamber with no clout cannot expect any other kind of treatment. As long as we operate this system we are doing ourselves an injustice.
I would be happy to listen to the various ideas coming forward but it is important that elected, nominated and university Senators use this unique opportunity to put forward their views. This is critical because change must take place in this House and the more say we have in that change the better. In the long run we will serve ourselves and this country better if we reform this House as opposed to allowing the status quo continue and risk its abolition.
Mr. Norris Mr. Norris
Mr. Norris: This is by no means the first time that we have addressed the issue of Seanad reform. However, it is the first time we have done so in the light of the deliberations of the All Party Oireachtas Committee on the Constitution. It is to be welcomed that the Chairman of that committee is in the Chamber today.
I wrote to the Chairman in response to his request and included some of my ideas in outline.  I also included a slightly sharp note that the committee might consider the operations and functions of the Dáil. If they were considering the abolition of the Seanad they might do better to abolish the Dáil and leave Senators in charge of the country.
I was irritated by the machinations of the Chairman's colleague, Deputy Jim Mitchell, and his committee who openly and impertinently called for the abolition of the Seanad and started by getting a number of digs in at the university seats. I listened with care to the clear and thoughtful contribution of Senator Gallagher. In her closing remarks she mentioned the value of the different Senators. She spoke of the elected, nominated and university Senators. A casual reader might assume from this that university Senators are not elected. I know the Senator did not mean this. The university Senators are the most democratic element in the House. No one accepts the old hogwash about delegated universal suffrage where county councils and members of both Houses are elected by the people and the people surrender their right to elect the Members of the Seanad, the 47 people elected on the panels being elected by delegated universal suffrage, the people having voluntarily submitted and surrendered their right to elected public officials.
The reason for this system is clear. It is so that the party structure may retain its stranglehold on all these seats. That is a corrupt system. I would add the caveat that I do not attach any stigma of corruption to the people who are elected through that system. It is a source of constant amazement to me that colleagues of such calibre are elected through a system which I regard as defective.
There is one way around this, which is to look at the merits of the university system instead of at the proposed defects. There is one striking merit in the way university Senators are elected, that is, that the ordinary members of the nominating body are enfranchised. In other words, graduates of the university — I think it is ten — can nominate somebody to stand for election. However, it does not end there and is not surrendered to county councillors and Members of the Oireachtas to elect them. The 30,000 graduates of the University of Dublin, who are on the register, act as a voting college. The same applies to the National University of Ireland where over 100,000 graduates vote. Although there appears to be a degree of disparity there, only 30 per cent or less vote in the NUI constituency while 65 per cent vote in the Trinity election. Trinity graduates value and use this privilege and prerogative. That means independent minded people must persuade an articulate and informed electorate that they are worthy of being voted to Seanad Éireann.
I contrast this with the panel system. Among the nominating bodies is the Royal Irish Academy. The President of the RIA stood for election to Seanad Éireann — I presume on the cultural panel — and did not receive a single vote.  The head of one of the most prestigious academic intellectual cultural bodies did not receive a vote. I know Senator Ross said one only needs about 25 votes to get in, but not to get one vote is a pretty minimal performance. I always laugh at the wonderful charades of elections which usually take place in the dining room in Leinster House where people receive 97,560 votes. One must multiply the votes by about 0.25 million to fool people into thinking that it is a real contest or election.
If we are serious about the vocational aspect of Seanad Éireann, the most important and significant contribution we can make to ensure it works is to look again at the nomination bodies and make sure we have targeted the most significant representative groups, such as trade unions and perhaps even the Churches, which should have a voice in Irish public life. When we have decided these are the most appropriate ones, we should enfranchise the ordinary members. If, for example, we have a medical lobby, we should enfranchise all the members of the Irish Medical Organisation, the nurses and so on who will vote for their representative to this House. We would then find genuinely committed people with a range of expertise which could be brought to bear on legislation and could fulfil the function of this Chamber as a reviewing one, which would be good.
I agree with Senator Gallagher that my colleague and distinguished friend, Senator Ross, was wrong when he said we should not allow Members of the House to be members of political parties. Of course they should be members of political parties and even subject to the Whip; but they should get into this House by a fair, reputable and proper electoral system. Then they should arrange themselves in any way they like. I would go so far as to say that some seats should be reserved to be fought exclusively on a party basis because one of the things I have come to appreciate about this House is that although I regard the system as essentially corrupt and vitiated, it provides a mechanism for senior politicians who are unlucky at the elections to have their wisdom and experience continued in the interest of the State. This is a bit of a volte-face for me, because I was the one who coined the phrases about the Seanad being a rest home for decrepit politicians. However, there is a sense in which that experience is sometimes too valuable to be lost to the service of the State between elections. I am not totally against any party interest in this House but I am against the Seanad being so obviously the tool of party interests.
I hope the Chairman will consider and pass on to the relevant authorities the deep sense of grievance that is felt in this House at its exclusion from the provisions of the Bill intended to finance political parties at election time. Not only should the Seanad be included in the Bill, but it must not be restricted to parties. People who are party members at the time of Seanad elections get considerable assistance in terms of workers, finance  and additional envelopes. That includes people who are members of political parties in the university interest, of whom there is at least one, whose blushes I will spare. That gives an unfair advantage.
I do not see why Independent Members should not receive a degree of support, given that elections are extremely costly. I fought six elections, which cost about £10,000 each, before I got into this House. I had to pay for stamps and envelopes because I did not have Oireachtas postage. I sent 37,000 letters and signed each one by hand, which gave me writer's cramp and is slightly dull. It worked, but it was expensive. It took me about 15 years of being employed and working reasonably hard in this House to pay off the accumulated backlog, which was about £60,000.
There should be a level playing field and we should all get support. That support should be extended to candidates who get over a certain threshold of votes. They should be reimbursed by so much for every vote. It is not fair to continue to advantage sitting candidates at the expense of potential new Members of this House. I urge the Chairman to bring to the committee and Government the strong feeling that it is wrong to exclude the Seanad and Independent Members from the operation of this Bill. It is probably unconstitutional to do so.
I would like to outline a number of other reasons the Seanad should be continued, although it should be carefully reformed. As a member of the Oireachtas Joint Committee on Foreign Affairs, I visited the Czech Republic a couple of months ago. The Czech's were in the process of establishing an Upper House. They now have a Senate; I believe the elections are over. We spoke to a number of Cabinet Ministers about it. I was told by a Minister that they had reviewed the operation of Upper Houses in various countries, including Ireland, and were so impressed by their operation, in particular the Seanad, that it helped to persuade them to initiate a Senate this year. It is not an idea which is passé and from the 1930s. We are recognised by our European colleagues as playing such a vital part in the democratic process that they are prepared to embark on the creation of second chamber using us as a model.
We are also able to do certain things which have not been done by the Dáil. I am an extremely egotistical person. Most academics and all theatre people and politicians are egotistical and as I fall into those three categories I am particularly so. I am sure the House will excuse me from reciting my participation in this matter but it is close to my mind.
A couple of years ago I tabled an amendment to the Child Care Bill, which was supported by Brendan Ryan and which necessitated the introduction of a new section that introduced the guardian ad litem principle into Irish law for the first time. It has been introduced into British law in the wake of a particularly horrifying case where a young girl of about six years was  returned to her defective and dysfunctional family by the local authorities where she was promptly butchered and murdered. We argued hammer and tongs for six weeks with the Minister, who I think was Deputy Noel Treacy.
Senator Gallagher mentioned earlier that we are not to be trusted with the State purse strings and cannot introduce a measure which entails a charge on the Exchequer — an unnecessary disadvantage under which to place the Seanad — and it was because of this that the amendment was ruled out of order. However, I knew this would save children's lives. We had been extensively briefed by various agencies in this State and were convinced we were right. We therefore repeatedly reintroduced it and argued on it although we knew it would be ruled out of order. We wore down the Minister. He was a decent man who came to accept what we said and went through the difficult process of returning to Cabinet, recommitting the measure and sending it back to the Dáil. That change has or will in future save children's lives. That was a good day's work which this House accomplished with the assistance of the relevant Minister and which the Dáil failed to do.
It was perhaps a little technical and dull. There were none of the amusing exchanges on the Order of Business which we all enjoy so much. Not one single word appeared in any print media. It was not shown on RTÉ television or broadcast on radio. That is a disservice to the Houses of the Oireachtas because when something as important and significant in terms of its impact on ordinary people's lives takes place as a result of the legislative process in this House, the electorate should be aware of it. It is by this they will learn to value the Seanad and not by the nonsense which often appears in newspapers, for a proportion of which I am responsible.
This House is inadequately covered in all media. Some are better than others. Sometimes, this House only receives one minute's coverage in “Oireachtas Report”. This is ridiculous, fatuous and insulting. I do not want to involve myself in media bashing and do, in the words of the old cliché, have many good friends in the Fourth Estate, but inane reports about Senators speaking to an empty House annoy me. Taxpayers would be in worse trouble if the place was full with stuffed eejits digesting their lunch and dozing away. If this place is empty, it is because my colleagues are in their offices working hard with one eye on the monitor, reading legislation, answering correspondence or taking part in committees. No member of the press is unaware of that; yet they trot out the same old tripe, week after week and year after year. They are unprincipled in this. We now unfortunately have tabloid newspapers in this country.
I remember some years ago being included in a delegation attending the International Parliamentary Union in Canberra. There was a big stink about it. “Senators on junket”, the headlines read. No one would talk to the press. They  rang me and I said I would talk to them. They told me I was attending this conference which was costing so much. I said I did not know that but they might perhaps be correct. They asked me if I would enjoy myself. I said that I most certainly would and, as a representative of Irish taxpayers, it was not up to me to be wizened, mean, begrudging and miserable. They would like me to enjoy myself and I would go on a second class flight to China and Fiji as well. I did and it was cheaper than the authorised and organised club class flight. I took part in the conference every single day and raised the question of East Timor. I blistered Gareth Evans, the Australian Foreign Minister, inside his own Parliament buildings and made the headlines in Australian, New York and some European papers. The only place it was met with a resounding silence was in my little home town of Dublin, although I had all the material faxed to the newspapers. I rang my secretary from Australia asking if there was anything in the newspapers. When she said no, I told her to ring them and to send another fax. She rang newspaper offices wanting to know why this was not covered as it was an important political statement on East Timor. The answer she received was revealing. Senators on a junket was a story. Senators working was not a story. That raises a serious question about the ethics of that kind of journalism.
Books and programmes are often produced about elections. However, they only cover the election to the Dáil. Sometimes, the election to the Seanad is completely left out. It should be recognised that unless and until there is a change, this Oireachtas comprises of two Chambers and each, in its different way, is worthy of respect.
The reform of the laws on homosexuality was handled with special sensitivity in this House. Even before the reform of the principal sections of the Criminal Law Acts, 1861 and 1885, this House pioneered the introduction into Irish legislation of sexual orientation clauses guaranteeing certain civil rights for a minority of people in this country. That is something of which this House can be proud. I also remember that I got the first debate ever on acquired immune deficiency syndrome held in this House. I was told I could not use some of the rooms in Kildare House for these briefing sessions for some fussy little reason. I then hired a room in Buswells Hotel. I got a Roman Catholic priest who worked with drug people in the city centre, Fiona Mulcahy from St. James's Hospital, who is a remarkable specialist in this area and a few others, to attend. I chaired the meeting, held my tongue and did not advocate anything. I felt that, by having colleagues from both Houses listen to others with a range of expertise, it would raise issues in their minds and make them come to terms with matters rather more so than if I engaged in a polemic. We had one of the best informed debates ever on that difficult subject which the Dáil was afraid to tackle at that time.
 Remarkable work has been done by my colleague, Senator Neville, on the subject of suicide. Although he is a supporter of the Government, it is remarkable and regrettable how infrequently Government is prepared to accept in any way other than a dog in the manger fashion legislative initiative from its backbenches and Cabinet. Senator Neville has suffered from this on a number of innovative legislative proposals he has produced. So have I. The last legislation initiated by the Independent benches in this House, which passed through all Stages of debate and into law was a Bill now nearly 40 years old dealing with the humane conditions for pigs and abattoirs and was introduced by the late Senator Professor W.B. Stanford. That is lamentable. People should be encouraged to do this. It should not just be Government. This House should have a clear role in initiating legislation.
One other matter which is partly an achievement of this Seanad is the establishment of the Joint Committee on Foreign Affairs. I take some small credit for that for the following reason. I took that as my principal debate, my Private Members' Time, on three successive occasions. I possibly had that privilege about once a year then. I remember reading the contributions to previous debates, including those which took place before I was elected, and noting that every single person who spoke had at one time or other been in favour of a foreign affairs committee. I wondered why they had changed their minds and what the altered circumstances were which caused them to change their minds. The answer was an election. When people were in Government, they opposed a foreign affairs committee but were strongly in favour of it in Opposition. I imply the malign influence of the mandarins of Iveagh House and am perhaps not too far short of the mark. They did not trust us to have any input in the formation of foreign policy or to be accountable to it.
In the third debate I said that since everyone was or had been in favour of a foreign affairs committee and the Government, for technical reasons, was not capable of providing it, I would like to announce we were having our own committee anyway. I was cute enough not to push myself into the Chair; I gave that position to the present Minister for Arts, Culture and the Gaeltacht, Deputy Michael Higgins. I became secretary and I wrote to all the foreign affairs committees in Europe. It was interesting that they replied because it gave us a de facto recognition which was one of the things that put the skids under the Government. Whatever about having a foreign affairs committee which it could control, the idea of having a wildcat foreign affairs committee with Deputy Michael Higgins and myself in the driving seat produced nightmares not only in Iveagh House but also in Government Buildings. That was one element which hastened the development of the foreign affairs committee. It was not perhaps crucial, but it was an influence and this House achieved it.
 We used wonderful ways around things. We were forbidden, for example, to send notices out about meetings so I put it on the Order Paper that “Seanad Éireann takes note of the fact that there will be a meeting of the foreign affairs committee in Room G9 on Tuesday, 26 February”. Then I would ask the Cathaoirleach on the Order of Business if he was prepared to take item 30. We had to be a little athletic when trying to find ways around these issues.
As regards reform of the Seanad, certain information should be made available to us — for example, the Standing Orders of the Seanad under which rulings are made. I have never seen this book, although I presume it exists. I would like to know if something can be raised immediately as a matter of urgent national interest because when we try to do so, we almost invariably get the Cathaoirleach's ruling that it is not contemplated under Standing Orders. That is often complete tripe. I remember raising an ESB strike here and I was told it was not a matter of national importance. Simultaneously, however, the Taoiseach was telling the Dáil it was a national emergency, yet it could not be contemplated here. Why could it not be contemplated? Why are we not entitled to know even if it is embarrassing for the Government? Let it be embarrassing because democracy is about embarrassing people from time to time.
Our exclusion from financial matters is also a mistake for the various reasons I have suggested. For example, we are excluded from considering certain financial issues, amendments can be ruled out of order and we are excluded from participating in the Select Committee on Foreign Affairs, which is made up exclusively of Dáil Members. I am not even allowed to attend because it discusses finance. Why is that the case? I have threatened to turn up like a bad penny and I intend to do so at some stage. It also discusses a wide range of other issues which are marginally related to finance but we are excluded, by virtue of our membership of the Seanad, from the operation of that important committee. That is wrong and it should be changed.
We have played an important role in a number of areas for which we do not get credit or appropriate pay. I am nakedly unashamed to say that I gloated when I saw a newspaper headline the other day which read: “Politicians Vote Themselves a Bonanza”. I thought, thank God they have shown backbone at last and we will get an increase. However, that was not the case. The article was about allowances for being away from home, which was taking the situation back to what had existed previously. However, the newspapers had a field day.
We should also have improved secretarial assistance. I am not talking about the standard of intelligence or work because I cannot speak highly enough of it. However, each Senator should have a secretary, a room and the facilities that will make him or her a more productive contributor  to this House. We should also have proper research assistants. We are lucky at present because the Institute of Public Administration provides a number of us with American research assistants as part of their course here and they have done extremely valuable work for me in researching papers and so on. However, we should not have to rely on this slightly exploitative system; there should be proper research assistants.
We should also be given some type of introductory course on the work of legislating. The secretaries, of whom I have spoken highly, are efficient and up to date with the latest technology. Why? Because the Oireachtas gives them time off to go on computer courses where they familiarise themselves with the tools of their trade. New and old Senators are not given any introduction on how to read legislation which is written in a specialised language. What appears to be the ordinary meaning of phrases may not be so and often one section refers to another. It would be extremely valuable to have assistance in that regard. We should also have assistance in terms of draftspersonship so that if somebody wanted to initiate legislation in a certain area, they could go with the bones of the idea to an official of this House and have it turned into legislation.
The franchise should be extended. I have said on many occasions that the logical way to do this is to recognise the separate identity of the two constituencies. Trinity College is a Dublin city centre college so Dublin City University should be included in our constituency in the same way as the Dublin Institute of Technology. The University of Limerick should be included in the NUI's constituency because it is a national constituency embracing the entire island. The dates of the election to both the Seanad and the Dáil should coincide, which would rule out direct political intervention. I agree with Deputy Jim O'Keeffe's comments about representatives from different interest groups. What better non-party, committed person with a vision could we have than Ms Adi Roche from the Chernobyl Children's Project, for example? What better person could we have to speak about East Timor than Mr. Tom Hyland from the East Timor Ireland Solidarity Campaign? We should also make provision for Question Time so that we can raise matters of immediate relevance.
I look forward to the committee's conclusions and to whatever is initiated as a result of its elaborations. We have given Deputy Jim O'Keeffe sufficient material to mull over. We hope that with this type of happy collaboration between Members of this House and his committee we will arrive at a formula for making this already valuable House more efficient and productive in the interests of the people.
Mr. Neville Mr. Neville
Mr. Neville: I wish to share my time with Senator McAughtry.
An Leas-Chathaoirleach An Leas-Chathaoirleach
 An Leas-Chathaoirleach: Is that agreed? Agreed.
Mr. Neville Mr. Neville
Mr. Neville: The justification for a second Chamber and its status and role in the body politic has always been a fascinating subject on which there has been lively debate. The need or otherwise for a second House in a Legislature has been a vexed problem for political scientists and constitutional experts. There are instances of great statesmen and writers expressing divergent views and displaying sharp differences of opinion on the value of a second Chamber. Some have contended that a second Chamber is undemocratic and subversive to the will of the people expressed and articulated through the popularly elected Lower House while others have stressed the absolute need for such a House as a safeguard against the “tyranny of a single Chamber Legislature”. The great French constitutional framer, Abbé Sieyes, totally rejected the concept of a second Chamber with his well known and often quoted observation that “if a Second Chamber dissents from the first, it is mischievous; if it agrees, it's superfluous”. On the other hand, Sir Henry Maine pleaded that almost any kind of second Chamber is better than none. Benjamin Franklin strongly opposed the presence of a second Chamber, likening it to a two headed snake in the following illustration:
She was going to a brook to drink and on her way was to pass through a hedge, a twig of which opposed her direct course; one head chose to go on the right side of the twig, the other on the left, so that time was spent on the contest. And, before the decision was completed, the poor snake died with thirst.
However, George Washington thought the function of a second Chamber was to act as a check on the legislative machine. Thomas Jefferson once protested to Washington against the establishment of a two-house legislature. Washington asked: “Why do you pour your coffee into your saucer?” “To cool it”, replied Jefferson. “Even so”, said Washington, “we pour legislation into the senatorial saucer to cool it.”
Many authorities could be cited either in favour of or against the need for or utility of a second Chamber. The subject of merits and demerits of an Upper House or the controversy between retentionists and abolitionists is age-old and recurs from time to time. The reasons for favouring and preferring a two-chamber legislature are many but the important ones are these. First, there is need for a sober and second look at legislation which may be the result of political passions of a momentary nature or calculated tyranny of a dogmatic majority in the popular House. The second Chamber, it is believed, is capable of giving opinions less dependent on the transient political emotions. In other words, it acts as a check on hasty or ill-considered legislation.
 Second, a second Chamber provides for a more careful scrutiny of an issue in a calmer atmosphere; it acts as a corrective and a complement to the first Chamber. Third, in the present times of growing complexity of legislation and a heavy legislative schedule, the Seanad is useful in sharing the burden of the Dáil. It helps plan the legislative programme in such a way that the Oireachtas as a whole can discharge its duty properly and effectively. Fourth, the second Chamber can hold debates on matters of wide ranging public interest which might not be held in the Dáil, as it must concentrate on legislation and financial issues.
Fifth, the Upper House may serve as a device to give representation to interests which remain unrepresented in the popular House. We note the contributions that Senator McAughtry, the late Senator Wilson and others have brought to the House. Also, Senators elected from the Labour Panel may have a strong industrial relations background — mine stretches over 25 years — so they can bring that experience to bear in debates. Likewise, the presence of farmers and agriculturalists from the Agricultural Panel allows the House to benefit from their experience. The Seanad gives representation to specific interests in that way, although perhaps not as effectively as it could.
Sixth, the Seanad may include people of talent who are shy of facing the rough and tumble of a general election. The Taoiseach's nominees often include such people. Seventh, although the Government is responsible to the Dáil, the popularly elected House, it can be influenced if not controlled by the deliberations of the Seanad. Eighth, bicameralism is almost indispensable in federations. We are not a federation but we are moving in that direction. We should give greater weight to our role as local politicians. We are elected by county councillors, we should be more conscious of representing their views and interests and we should consult with them more than we do.
In early December I spent five days studying the Upper Houses of the Indian and Malaysian Parliaments. While the Malaysian Parliament did not have much relevance to us, the Indian Parliament had many interesting features. When the Constitution of India was being drafted, its framers were fully aware of and took into consideration all the points for and against a second Chamber. The chairman of the constitutional commission said that there was a considerable volume of opinion against having a second Chamber, as it might prove to be a “clog in the wheel of progress”, involving expense and adding nothing to the efficiency of work. He replied to this criticism by remarking that the need for a second Chamber had been felt almost everywhere. He further said:
After all, the question for us to consider is whether it performs any useful function. The most that we expect the Second Chamber to do is perhaps to hold dignified debates on  important issues and to delay legislation which might be the outcome of passions of the moment until the passions have subsided and calm consideration could be bestowed on the measures which will be before the Legislature; and we shall take care to provide in the Constitution that whenever on any important matter, particularly matters relating to finance, there is conflict between the House of the People and the Council of States, it is the view of the House of the People that shall prevail. Therefore, what we really achieve by the existence of this Second Chamber is only an instrument by which we delay action which might be hastily conceived, and we also give an opportunity, perhaps, to seasoned people who may not be in the thickest of the political fray, but who might be willing to participate in the debate with an amount of learning and importance which we do not ordinarily associate with a House of the People.
At the first meeting of the Rajya Sabha, the Indian Upper House, its chairman said:
There is a general impression that this House cannot make or unmake government and, therefore, it is a superfluous body. But there are functions which a revising chamber can fulfil fruitfully. Parliament is not only a legislative but a deliberative body. So far as its deliberative functions are concerned it will be open to us to make very valuable contributions and it will depend on our work whether we justify or do not justify this two Chamber system, which is now an integral part of our Constitution.
My work in India was in conjunction with the establishment of a new second House in South Africa, the National Council of the Provinces. The South African Upper House has been totally revised in the light of the new Constitution. Not alone has it been kept, but its role has been enhanced. In this regard a study was undertaken of 11 Upper Houses throughout the world, some of which have features which might be of interest to us. I could repeat much of what has been said today but I want to introduce the experiences of other countries and studies done elsewhere.
Most of the other Houses are elected indirectly through the provincial or state legislatures but there are several exceptions, notably Germany's Bundesrat, where the state delegation is chosen by the executive rather than the legislature. Russia's Federation Council is a hybrid, consisting of the head of the legislature and the regional governor from each of the 89 regions. Canada, Brazil and Australia choose their second House through direct election from the voters. The distinction between the two methods of choosing members of the second House is that in systems with an indirect system of elections, Members of the second House tend to be more closely linked to provincial structures. This tie is strengthened in countries like Russia and Namibia, where members of national second houses are not only  drawn from provincial or regional bodies but retain their seats in those bodies as well.
The composition of some of the houses also seeks to promote a degree of representation to certain other interests. For example, while the appointment system for Malaysia's Dewan Negara is closely linked to political parties, it also seeks to provide representation for minority groups by allowing the King to nominate individuals capable of representing racial minorities or other groups.
The power to accept, amend or reject legislation in the second Chamber is the key to evaluating its legitimacy or contribution. The strongest Houses among those studied are the German Bundesrat and the Australian Senate. In Australia, the Senate must provide its assent to a bill before it can become a law; all legislation faces this strict requirement. The ability of the German Bundesrat to represent state interests is most evident in its voting powers. The Bundesrat has an absolute veto on all Bills affecting the interests of states, including fiscal matters. In addition, it can reject all Bills or propose amendments to them. A similar provision exists in Namibia where if two thirds of the National Council — the Upper House — opposes a Bill in principle, the National Assembly — the Lower House — is obliged to approve the Bill by an equal or greater two thirds majority or else the Bill fails completely. However, it does not have this power, even with a two thirds rejection, on finance Bills.
The Russian Federation Council also allows for strong representation by the regions. Certain federal laws are always subject to its approval, including the federal budget, taxes and revenues. The Canadian Senate is entitled to delay or decline to pass any Bill, but it tends to use these powers discreetly. While the Senate frequently does amend Bills with the concurrence of the other chamber, many of the amendments are technical changes that reflect the last minute request of the ministry behind the legislation.
The House of Lords, which is closer to us, has no final veto over legislation, although it can make amendments. In general, the House of Lords amends the details of Bills rather than challenging their principle, and virtually all of its amendments are accepted by the House of Commons.
Most of the Houses examined have the power to introduce legislation. One exception is the Namibian National Council. The types of legislation which second Houses are able to introduce is a determining factor of their relative strength in relation to the other House. The second Houses in Argentina, Brazil, Russia, India, Malaysia, Australia and Canada all have the power to initiate legislation — as does the Irish Seanad — but with certain limitations. For example, the Argentinian Federal Senate may not initiate laws relating to taxation, while the Brazilian Federal Senate may not initiate Bills relating to the federal budget. Likewise, money Bills dealing  with either taxation or expenditure of public money may not be introduced in India or Malaysia, which is similar to our situation.
An examination was made of the relationship between the Second House and provincial structures. While this is not very relevant to Ireland, some very interesting facts arose. In several countries, especially Austria and Argentina, members of the Second House are more closely tied to their provinces or states than to their political party structures.
The communication methods between the two Houses was also raised. Most of the methods of communication between the two Houses of Parliament are similar throughout the countries examined. The publication of parliamentary gazettes, Senate journals and Order Papers, which include reports on Senate activities, joint committees are so on, are fairly common.
All of the 11 chambers examined have some form of committee system, but their role and structure vary from country to country. A primary distinction among committee systems revolves around the question of whether the committees correspond to ministerial portfolios or to the committees of the other chamber. The second Houses of Argentina, Brazil and Russia do not correspond to ministerial portfolios but they do in Germany and Austria. In fact, in Austria's Bundesrat committees correspond both to the portfolios of ministries as well as to the committees of the other chamber. In Germany the committees comprise members of the provincial ministry responsible for that particular portfolio at the provincial level. There is a constant connection between the province and the national level on an issue by issue basis.
Malaysia's second House has no standing portfolio committee and only a few administrative committees, which is almost identical to our structure. The whole chamber goes into committee session to examine Bills in detail.
In several of the second chambers, such as the Russian Federation Council and the Austrian Bundesrat, the number of committees is far fewer than in the other House. This is true in the House of Lords, which makes little use of standing or select committees and where the select committees do not oversee the work of Departments. Rather, the committees in the House of Lords tend to focus on internal affairs and the administration of the House.
As I said, South Africa recently revised its Senate and renamed it the National Council of the Provinces. It comprises nine provincial delegations of ten members each. The delegates are selected by the provincial legislatures on the basis of the party political proportional representation formula set out in the constitution of South Africa. Each delegation has six permanent members and four special members, who are members of the provincial legislature sent to participate in particular NCOP business.
 I wish to refer to our study of the Upper House of India, the Rajya Sabha. Everywhere we went in India we were told how the Indian constitution was modelled on the Irish Constitution, which was well known in parliamentary circles there. The strength of the Indian Upper House is totally different to ours and is fixed at a maximum of 250 members; of course, it represents a population of 950 million people, which is more than the population of Europe. There are 245 members of the Upper House at the moment, including 12 nominated members.
Unlike the Lower House, the Rajya Sabha is not dissolved as a body but one third of its members retire every two years and their place is taken by new members. The Vice President of India, who is elected by an electoral college consisting of members of both Houses, is the ex officio chairman of the Rajya Sabha. When the Vice President acts as President of India the duties of chairman are performed by the deputy chairman who is elected from the members.
Except in certain financial matters which are the sole concern of the Lower House, the Rajya Sabha enjoys coequal status in all respects. A money Bill cannot be introduced in the Rajya Sabha, as is the case here. It can only be introduced in the Lower House and after it is passed by that House it has to be transmitted to the Rajya Sabha for its recommendations. The Lower House has the power of either accepting or rejecting the recommendations. If the money Bill is returned to the Lower House within 14 days of its receipt in the Lower House it will be deemed to have been passed once the time has expired.
Under the Indian constitution the Rajya Sabha possesses equal authority and power in regard to the amendment of the constitution. There is provision for a joint sitting with regard to a Bill if deadlock arises between the two Houses. In other words, a Bill to amend the constitution has to be passed by both Houses separately and if this does not occur a joint sitting is held to decide the matter.
Another special power relates to the proclamation of emergency. This provides that if a proclamation of emergency is issued when the House of the People remains dissolved, and the resolution approving the proclamation is passed by the council of state, the proclamation will be legally effective for up to 30 days.
There are some important matters in respect of which the constitution has placed both Houses on a footing of equality. Both Houses have equal rights in the election and impeachment of the President, the election of the Vice President, to make laws defining parliamentary privilege and to punish for contempt, to approve a proclamation of emergency and in regard to the failure of the constitutional machinery in states. The Upper House even has sole rights in some cases.
Most of the Parliaments which were studied have a Question Time. I sat for an hour during Question Time in the Upper House in India, which was not dissimilar to the Irish Question  Time. I wish to quote from an explanatory booklet for new members of the Indian Upper House:
How effective and assertive the Rajya Sabha is in the matter of reflecting people's problems and highlighting public issues can be seen by watching the House during the “Question Hour” on any day. Through the device of questions, important matters on which the public mind is agitated are raised. This device has been used not only to elicit information and ventilate public grievances but also to goad and force Government to admit executive lapses or to investigate into them. It has been able to secure important assurances and policy statements.
It goes on to illustrate important decisions that were made as a result of questions which were put at Question Time. Most Upper Houses have question time; it acts as an important ally for Senators in raising issues of importance or concern to the general public.
Mr. McAughtry Mr. McAughtry
Mr. McAughtry: Very little, if any, of my contribution will call for constitutional change. I take this opportunity to give an account of my 12 months in this House, particularly with regard to the Northern Ireland panel suggested by Deputy Kathleen Lynch in this report. I have been disappointed at the lack of opportunity to discuss Northern Ireland during my time in this House. This does not call for a constitutional amendment but it would be wrong of me not to point it out. I was delighted to learn, having been here for three or four months, that I was allowed to sit in on the meetings of the subcommittee of the Oireachtas Joint Committee on Foreign Affairs on Northern Ireland. I thought I could make a contribution but when I went to the meetings it occurred to me that Senators from Northern Ireland should be full members of the committee automatically — I know they are expected to work here and I will do that wholeheartedly — in order to give them more authority. I was embarrassed questioning an SDLP delegation at one meeting because I had to question people of whom I am quite fond. I had to pretend to be searching because nobody else was being very searching with them in the North. They represent Northern Ireland. Deputy O'Keeffe should bear this in mind as it would make a considerable difference.
I am glad I became a Member of this House through a by-election because it gives a good deal more authority to a Senator. I have been approached by and been able to help interests in the South. It would not be a bad idea to have more people from Northern Ireland participating in by-elections. I found it a good experience and it must have been helpful for the people of the South to watch a person from Northern Ireland competing for a Seanad seat; it must have added to their knowledge of Northern Ireland affairs. I am suggesting conventions, not constitutional  amendments but I hope somebody takes them on board.
Having accepted the invitation to run for this seat I was sorry the Fianna Fáil candidate stood down in favour of an SDLP candidate because in the event of a person from Northern Ireland running for this House in the future there is no more healthy way to do it than by being opposed by the Opposition parties here and not by another candidate from Northern Ireland.
Mr. O'Toole Mr. O'Toole
Mr. O'Toole: I wish to share my time with Senator Lee and Senator Dardis. We wish to have ten minutes each.
An Cathaoirleach An Cathaoirleach
An Cathaoirleach: Is that agreed? Agreed.
Mr. O'Toole Mr. O'Toole
Mr. O'Toole: I welcome the Chairman to the House and appreciate the important work he is doing. This is my sixth time speaking on this issue since 1987. Much of what I have to say relates to change which does not require constitutional amendment but does require a difference of interpretation as to how the Constitution is impacted upon. There are many mistaken impressions about how hamstrung the Seanad might be because of the Constitution. I do not support that point of view.
The Seanad has extraordinary potential. However, it has enough power. It is not proper in a bicameral Parliament that the Upper House would pervert the wishes of the people as expressed in the Lower House and the Seanad can work very well and effectively within those parameters. I dislike it being seen as either a retirement home for failed TDs or a launching platform for young political tigers. There is nothing wrong with Members of the Seanad aspiring to become TDs. This House is enriched by having ex-Ministers and former Members of the Lower House in it. I have differed on that with some of my Independent colleagues in the past. However, in any bicameral structure there are certain conditions for its success. It needs a different electoral process in the Lower House, which we have, but it must be different but not less democratic. Also we need to look at how that would work.
I prefer to be seen as considered and academic rather than pejorative. I consider this House at present to be anti-democratic and unrepresentative. My position is as good an example as any. I am the leader of the largest educational organisation in this country and an active member of the most senior labour committee here. There is a Labour Panel and an Education Panel but I would not have a snowball's chance in hell of being elected to either panel because I am not attached to a political party. Therefore, the only way I can seek election to this House is through what is considered by many to be the most exclusive panel, the University Panel. It has been good enough to elect me for the past ten years and I hope it continues to do so.
 What can be done? How can we extend the franchise? The Constitution is very clear. There is nothing wrong with giving votes to county councillors but it is wrong that they should have all the votes and that 43 Members of the Seanad should be elected by county and urban councillors. I call it a distillation of democracy, a pyramid model, where people are elected to local councils and elect another tier above them. The idea is a good one but it is wrong that it is the only method of election.
I suggest the committee might look at introducing a change in the Electoral Bill which would allow us to distinguish between what we call the inner panel and the outer panel. For example, for the Agriculture Panel, people are nominated by four Members of Parliament. The inside panel should be kept as it is, thus retaining the model. The outside panel should be elected by popular vote of the people who are part of the agricultural community. Why should a member of the IFA not have a vote for this panel? Similarly, trade Unionists and those involved in education — teachers and parents — could be included in respect of the outside panels for Labour and Education, etc. This would produce a balanced Seanad which would include useful new blood.
It is crucial that the same nomination day applies in respect of the Dáil and Seanad. Nomination for both Houses should not be ruled out. If the ill conceived idea of confining votes for emigrants to the Seanad was reconsidered in this context there might be a wider involvement for them. Those of us on the University benches have the distinction of being elected by some graduates living overseas. I have received correspondence on my web-site on the Internet from graduates in Japan, the US and Australia who are interested in what is going on in Ireland, who click into the Irish papers every day and who wish to be considered for the vote.
The Seanad can be a useful forum of subsidised political representation. However, it is apparent to Members with a second source of income, such as myself, that the salary for Senators is inadequate. Those who give a commitment to the House should be awarded with a decent salary.
While we can initiate legislation, it was also originally intended that we could modify or revise it. This Chamber should modify, revise and consolidate legislation and should look at old Statute Book for these purposes. It should be a reforming House.
The Seanad has enough power. It is wrong to consider emulating parliaments whose governments must fight their way through two Houses, encountering obstacles to progress. I defy anybody to prove to me the need for more powers for this House. However, we need additional responsibility, greater participation in democracy and Governments that are not afraid to be more open about their legislative business in the House.
 In my ten years as a Member of this House the past year has probably been the most productive because Ministers listened to arguments when they knew that the Government was in a minority and told their advisers to make changes. I have seen Ministers who did not have the guts to talk to advisers grow in professional self-confidence. The requirement to listen to Senators and proceed accordingly has been good for them, for the House and for legislation.
The committee should not be restricted to constitutional reform. It should interpret the nature of the constitutional objective and then consider if the legislation in place fulfils it.
We made constitutional changes to extend the franchise to all third level graduates. There is no case for delaying proceeding with this. Every third level graduate of every educational institution in this State should have a vote in Seanad elections. It is intolerable and appalling that this has not been done before now.
Professor Lee Professor Lee
Professor Lee: Bhí sé ar intinn agam a bheith anseo ó thús báire ach ní raibh mé in ann teacht isteach ar maidin. I hope I will not repeat what has been said already. The Minister should know that in other circumstances——
Mr. O'Toole Mr. O'Toole
Mr. O'Toole: He is not yet the Minister, but is hoping to be.
Mr. J. O'Keeffe Mr. J. O'Keeffe
Mr. J. O'Keeffe: When I last sat here I was a Minister of State.
Professor Lee Professor Lee
Professor Lee: That adds to what I was going to say about the traditional response of the Kerryman to the visitor's question on directions: “If I were you I would not be starting from here at all”.
The question is raised as to what the Seanad does. However, the basic question which the committee should confront is what should the Seanad do? Everything else — electoral systems, electorates, etc., — is dependent on that and logically responds to what is required of this Chamber.
Has a copy of the document discussing the options for the future of Seanad Éireann been distributed to every Member? It was submitted to the committee, of which I am not a member, on 5 December. It is a bulky document. Looking through it, I am glad to agree for once with anything written by Dr. Conor Cruise-O'Brien in the past 15 years when he refers to the relative lack of partisanship in this House and the way it can illuminate rather than heat discussions.
The question of the Seanad holding tribunals of inquiry and approving senior public appointments, which was suggested in the appendix to the Whitaker Commission, could be divisive. However, a crucial role must be played by somebody in evaluating on an annual basis — certainly on a regular basis — the performance of Departments.
The Executive is central to decision making. We know how this happens in practice most of  the time. It involves civil servants and Ministers and once decisions are made they proceed through the Dáil and the Seanad. They may be delayed by this process, but the core of decision making occurs between Ministers and civil servants. We cod ourselves if we pretend that those at the receiving end have a major influence on what happens. If we do not have the influence beforehand we will not have it afterwards.
It is essential, therefore, both in the interests of openness and improving efficiency, that there be regular reviews. This should not occur in an adversarial sense. Most of the time we only hear about the work of Departments when something goes wrong. Tribunals of inquiry are tribunals into what went wrong. We never hear about what goes right nor about the normal functioning of Departments. However, for most of the time, the quality of Government depends on the quality of the normal functioning of Departments. It is essential, therefore, that this be brought much more into the open as a matter of normalcy.
If this is accepted, and there is goodwill to approaching it not in an adversarial sense but in devising the mechanisms for review on a regular basis, the Seanad could have a significant role. For example, it would be central to following up on the Freedom of Information Bill and the unavoidable reform of the Ministers and Secretaries Act, which has become a bad joke. While it may or may not have been relevant to the way Government performed in 1924, it is not just unrealistic but fraudulent in terms of the image we convey of the way Government operates today. It is an insult to an educated electorate. Tom Barrington said it was devised for the age when Government was at the level of a grocer's shop or a corner shop. Government is now at supermarket level, yet we are still trying to apply the same management techniques and assuming that the Minister must have sole responsibility for everything.
Political problems are involved but a fundamental revision of that Act is essential for good Government. The way the performance of Departments is reviewed must be an integral part of that and the Seanad should have a simple role in that type of review, which would not be party political. Party politics is always part of it, but essentially it would not be a party political matter. However, it must a political matter; it cannot be left to outside so called expert groups. There must be much more constructive co-ordination and co-operation between Senators and Deputies and the Executive behind the Minister. If a mechanism is not devised for establishing that forum of institutional decision as we approach the next century, the Dáil and the Seanad will serve the country worse and worse. It is a big question but it is central to what Parliament and the Seanad should do.
I accept the dismissal of the specifics in terms of relations between the Seanad, Departments and the Administration. However, the general issue should be central for the committee and we  should repeatedly return to it. I am not talking about adversariality. On the contrary, much good Government does not receive any attention. The Universities Bill is available and there will be departmental reviews. One can debate the details but the principle of review is included. It is odd that virtually everything except the Departments which determine the legislation under which the country is run is up for review on a regular basis. We must get it into the heads of administrators through the Oireachtas, not outside bodies, that a review function is available. I agree with the important point about the review of European Union legislation. The House should discharge this function. However, if the review of administration and EU recommendations is a large portion of the Seanad's work, who does it?
I have much more confidence in the current composition of the Seanad — although that may appear a strange statement from somebody who is not part of the mainstream political process — than I have in a number of the recommendations for reform. When the Seanad was established, it had a notional vocational basis. That was instantly deployed by Mr. de Valera, who always knew what he was doing, to ensure it was not a vocational Seanad in the way people might think. At the time the idea was that vocations supplied expertise, but that is not nearly as much the case today. There is much more academic and specialist expertise in society which does not depend on vocational representation of that type. The important quality of the Seanad and any political body is judgment. How expertise is judged is much more important than expertise.
I do not suggest the interest groups should not be represented but they will come to the House with highly partisan perspectives. They are not necessarily party political but we should not fool ourselves that they are not political in the wider sense. Who will judge that expertise? A major issue is how one relates the Chambers of Parliament to expertise, and it is not necessarily by having representatives of expertise in the Chamber. This may appear a surprising point from me but we should give much thought to how to make the best use of the much wider range of expertise which now exists compared to when Bunreacht na hÉireann was instituted.
Some steps have been taken with regard to Taoiseach nominees. I am not adverse to the idea that people nominated by the Taoiseach should only accept nomination on the understanding that they will vote on the Government side of the House. They need not be party people; but if people can ensure Government and at the same time bring a different perspective, the Government must have a commitment for the duration. I have no objection to that.
I also believe that the universities constituency electorate should be extended to all graduates of third level institutions. In terms of a mechanism. I have no problem with national or university wide representation. It will be awkward if one tries to break down what individual universities should  have. That also raises problems, but I have no objection to a national constituency of graduates.
The report contains the unfortunate phrase “...and moreover enfranchise large numbers of people who are no longer domiciled in Ireland.” The Minister spoke about emigrant votes in a positive sense, which I strongly favour. However, the impression in the report is that there is something almost a little untoward about it. It should be rephrased before final publication.
Mr. Dardis Mr. Dardis
Mr. Dardis: I welcome Deputy O'Keeffe to the House in his capacity as chairman of the committee on the Constitution. It reflects positively on the wish of the House to reform itself. I also welcome the Deputy's thought provoking address, which was well crafted. I was particularly taken with his points about the contours of the Constitution and shaping them to the current needs of the people and future generations. That phrase echoed with me. Although it was agreed this morning, I am disappointed that it is necessary to share time. I thank Senator O'Toole and Senator Lee for sharing their time but I did much work on this matter and it is unfortunate it was not given more time.
A fundamental question is involved, but I will not restate points I made previously regarding the Progressive Democrats' view of the Seanad or that we believe it could be abolished. The report refers to the models of unicameral systems in unitary states which work very well. It is most unsatisfactory that a report of this quality was not circulated to Members in advance. I tried to find it in the Library this morning and communicated with Deputy O'Keeffe's office. Thankfully, he was able to furnish me with a copy. The debate would have been much more informed if the report had been freely available to Members beforehand.
The report mentions elite critics. There may be a precise academic definition of elite in that context; but if it is intended to infer that a party such as the Progressive Democrats is in some way elite in believing the Seanad could be abolished, I reject that view. The report states that the case for the abolition of Seanad Éireann has not been strongly enough made. However, it later states that it is not worth having an institution which makes no difference. This is the fundamental point. Does the institution make a difference? If not, can it be reformed to the point where it can make a difference? I am coming to the view that it makes some difference, but it could make more. It has made a difference in the legislative area because, as Deputy O'Keeffe said, the contributions in general have been balanced, well informed and, particularly from the university benches, learned. Where it has been shown that legislation can be amended for the common good, in general Ministers have done so.
Even in the case of reform, we are faced with redrawing the Constitution. It is not possible to create sufficient reform without bringing in the  Constitution. That must be done. The Maastricht Treaty deals with the relationship between the European Parliament and national parliaments. Some of these aspects could be dealt with in the Seanad and there should be a much closer relationship between the European Parliament and the Seanad. This interface should take place much more regularly and not just through visits by Commissioners, such as Commissioner Kinnock's presentation.
Is there more than the role of checks and balances? Perhaps not much more, but if the checks and balances are good enough that might be adequate, and there is reference to this in the summary of options for the Seanad. The onus is on the defenders of the institution to show how it can work, be reformed and not be abolished.
There have been oblique references to the primacy of Parliament, which I feel strongly about. Parliament has to be the primary agency in the State and the Executive must be answerable to Parliament. It increasingly seems that Parliament is the cipher for the Executive and is simply a rubber-stamp. The ultimate sanction Parliament has is to throw the Government out but in reality that is an extreme measure that does not arise very often, happily for those of us who stand for election. I would not remove that sanction from the Dáil and would not have it as a Seanad sanction so that there could be a vote of no confidence in the Government, making it fall. We would have to leave that out, but there will have to be some vehicle by which the primacy of Parliament is reclaimed. I am not precise as to what that would be, but the balance has shifted too far to the Executive and away from the Parliament. A question arises about whether the Dáil has the political courage to allow the Upper House more powers and influence. There is obviously tension because of selfish electoral interest.
I defended the existing electoral system in 1991 and it is quite representative. The councillors are representative of groups within the country and I reject the notion that minorities are not represented within Parliament. Minorities are well represented by individual Deputies and Senators who argue cases on their behalf. That is the nature of representative democracy. However, there are other models which may be superior to that electoral system. The Clerk will be interested to learn that in 1925, the election was done with a single transferable vote for the whole Free State as a single constituency. There were 76 candidates, 67 counts and it took three weeks to count the votes. I doubt the Clerk's office would go for that option. There might be a case for combining the existing system and a list system. The system where the original House elected in 1928 by the Deputies and existing Senators has some merit: there could be a list system where parties could nominate people. One difficulty with the present electoral system is that it is difficult for small parties to gain representation. That would be the experience of the Progressive Democrats and it is  only by creating alliances that it is possible to gain electoral victory.
Mr. Hayes Mr. Hayes
Mr. Hayes: The strangest kinds of alliances.
Mr. Dardis Mr. Dardis
Mr. Dardis: If needs must. One will always be pragmatic in those circumstances, as the Senator is well aware.
Should there be more Taoiseach's nominees? It is probably important that the Upper House has a similar complexion to the Lower House; but in circumstances where the Government has been in a minority, the House has worked well and the Opposition has been responsible. There are no fears about that. In 1925, W.T. Cosgrave had 30 nominees. If one had more Taoiseach's nominees — not 30 — it would allow the Government of the day to nominate people like the late Senator Gordon Wilson, which was a hugely important nomination. People like Senator Wilson would never have considered standing for election to this House. His was a direct nomination and a very fortuitous one. As to whether or not the Taoiseach's nominees should vote for the Government, it was a condition of Senator Wilson's case that it would not be required of him to do so. The Taoiseach of the day acceded to that request. There are circumstances where it should not be required of the person nominated by the Taoiseach to vote with the Government.
Several procedural matters could be improved, but they are probably more for the internal regulation of the House than the constitutional committee. One matter raised was qualified majority. That is, if there was a sufficiently important matter which the House felt strongly enough about, it should be possible by virtue of qualified majority, perhaps two thirds, to overturn the decision of the Dáil. That should be looked at. On committees, manpower is a major factor. It has become very difficult for small parties to man committees and the Upper House has a role in manning committees.
On the universities, I favour the extension of the franchise to the third level in general. Whether that would be one constituency or with Trinity retaining its separate status, I am unsure. I have referred to the contribution of the university Senators and they have added to the House.
As for emigrants, it should not be the case that emigrants have seats in the Upper House. They should have the same voting rights as any other citizen. They should be able to nominate the constituency they originally came from and there should be a time limit on the number of years away from home; but there are plenty of democracies where emigrants can vote by universal franchise to the main legislative assembly, which is normally the Lower House. There is no reason that cannot be done in our case. The example of France is given, where Senators from abroad have seats in the Upper House. That is probably a vestige of colonialism whereby citizens resident abroad came back to take their seats. If people  are citizens of a country, they are entitled to vote irrespective of where they are. There are difficulties in doing that but it is possible with modern communications.
The Seanad can have a useful function with checks and balances. Whether it requires extra powers I am not convinced; but it does need extra responsibility. The Seanad has to reform. It is a case of reformation or abolition and reformation is probably the preferable course. It was said to me that perhaps if the Seanad was less powerful it might be made more important, which relates to vocational representation. In respect to bodies like the Irish Farmers' Association having nominating powers to the House, although I have no evidence I suggest they and similar bodies would reject that notion because it would politicise them. There would be inevitable political interference to try and tone the complexion of the House. Bodies which are jealous of their non-sectarian and non-political nature would not wish to go down that road even if we allowed them seats in the House. If they came in as non-political they would probably end up political. This is a political House and there is nothing wrong with that; it is as it should be in a political democracy. To quote Coakley and Laver: “Those who are cynical about the prospects of institutional reform in Ireland might take the view that the most probable outcome of the current debate will be no change.” I hope they are wrong. We look to Deputy Jim O'Keeffe, his committee and the Oireachtas to show that will not be the case.
Mr. Hayes Mr. Hayes
Mr. Hayes: I also welcome Deputy Jim O'Keeffe. Other Senators may not know he was an eminent former Minister; hopefully he will be a Minister in future. I congratulate him for staying with us throughout this debate. The work he is doing in his committee on constitutional reform is very important and it is right that someone of his standing as a Member of the Oireachtas should have been selected to chair it. He was probably also selected because he represents one of the safest seats in the country, although he probably would not agree with that.
As for whether this House derives its mandate from the people, it does not. The democratic deficit in this House is clear. However, Senator Dardis made an important and central point when he asked if this House can make a difference to political life and the legislative process. He concluded that it could and it is in that context that we have to look at the role of this House. It has made a difference to the Parliament in raising issues that are being discussed throughout the country on a continuous basis.
On a purely democratic basis it does not derive its existence from the people and as a result there have been questions asked about its existence. Throughout the history of the State the role played by the Seanad in the life of the country has been positive and it is probably more positive today precisely because the Government is in a minority. The amount of vying and debate that  takes place between the Government and Opposition is intensified. That was not envisaged in either the 1922 or 1937 Constitutions but it has happened as a result of numbers. That fusion has been positive, for example, in bringing forward Private Members legislation just before Christmas. Deputy Mary Wallace's electoral reform legislation passed swiftly through this House. This might not have happened a number of years ago. Because of the numbers in this House the Government has managed to provide a most interesting focus of debate.
I am not really qualified to speak on this matter because nobody actually elected me to the Seanad — I was appointed directly by the Taoiseach; I keep saying to people long may it continue. I was not even elected to South Dublin County Council so I am a pretty rare animal. However, people bring their own experience to this place. In 1995 when I was asked to be a Member on my way from the Taoiseach to meet Senator Manning an adviser to the Government said, “You will not cause any difficulties for us, will you?” I said I hoped not. It is in that context that many Members who have been appointed by the Taoiseach are seen as people either on the way up or on the way down in politics; whether I fit into any of those categories I am not sure.
The experience this House can bring to national political life is important. People in this House are less party political than in the Dáil. That is the nature of the House because we encourage consensus and try to move on issues unilaterally. This encourages people to be less party political.
The role of the Independent Senators throughout the history of the House has been positive. They have always seen their role as attempting to change legislation positively rather than being a bloc of Independents continually chastising the Government over legislation.
When we debated the question of specific seats for emigrants I was very much in favour. However, when it came to the floor of the Seanad it was vociferously shot down by the vast majority of Members. I believed that we should have moved on the issue of giving Seanad votes to emigrants as an achievable first step. In a very short time we could have changed the impression many emigrants have about the political life of both Houses. I was shocked by the majority view from both sides which resulted in a positive proposal from Government being thrown out. If we had reacted more positively to that proposal three Members of this House could have represented the emigrant lobby after the next election. It is fine for Members to speak about reform, but when it was put in front of us we threw it out. If we had accepted it as a principle to be worked on, we could have had the basis for transforming one aspect of this House.
I once had an interview with Senator O'Toole while writing an article for a university. I am not sure if he met me because he knew he would be  speaking to a large number of graduates of the NUI, but I took the view from him then, and I have heard it reiterated today, that within the present Constitution we can bring about positive change. We can change the panels, the numbers represented on each panel and the number of nominating agencies. Small steps, like votes for emigrants and redrafting the panels, should be taken first. I agree with other Members regarding the university Senators and extending the franchise. That is common sense. Where change comes before the Seanad in the future, I hope we will take it on board and accept it.
Mr. Daly Mr. Daly
Mr. Daly: I too welcome Deputy O'Keeffe. I wish to express appreciation to John Coakley and Michael Laver for the very comprehensive submission they forwarded. It gives a very detailed account of the options and choices which face us.
The difficulty is that on around 2 March two years ago we had a comprehensive debate over a number of days suggesting adjustments which would make the House more effective and efficient and more relevant to the world outside. To date we have not seen much change in that regard, although I welcome the change whereby Deputy O'Keeffe is here with us discussing the options which might be put in place. I would like if we could have further adjustments and provide an opportunity to question the professors who prepared this document as would be done in the committees. That would allow us discuss proposed changes with the professionals and experienced political scientists and to make effective decisions.
I am not sure we are going to make any major advances. We have seen very little fundamental political change to the Constitution since its enactment other than where changes had to be initiated as a result of court decisions. It is rare that we have taken any other initiatives. We have set up committees and politicians have worked hard in those committees. The fundamental point is that there has been little change.
Seanad Éireann 149 Constitutional Review of the Seanad: Statements (Resumed).