Contents

Part 1 Precedents and past policies: bicameralism in historical perspective
Part 2 Proposals for the composition of a reformed Seanad
Part 3 Financial considerations: towards cost neutral reform
Conclusion

PART 1: PRECEDENTS AND PAST POLICIES
BICAMERALISM IN HISTORICAL PERSPECTIVE

Introduction

If the present debate on Seanad reform is to be meaningful, policy must be informed by historical perspective. The Taoiseach’s proposal to abolish the Seanad adds yet another chapter to the history of Irish political reform. Seven times during the past 127 years,¹ a seismic shift to the foundations of Irish law making has been proposed. Only two of these proposals have enjoyed full enactment: namely, the constitutional settlements of 1922 and 1937.² Meanwhile, attempts at reform of the government of Ireland prior to independence consist of four Home Rule bills – one rejected in the Commons; one in the Lords; one never brought into operation; and one which only succeeded in Northern Ireland. Finally, an Irish Council Bill (1907) was rejected out of hand by a national convention of the Home Rule movement at a point where nationalists refused to countenance Home Rule in ‘half-measures’.³ Since the inauguration of the present constitution, the 1937 equilibrium has not fundamentally been altered despite numerous amendments, and the present mechanisms for passing laws have endured for over three quarters of a century. Interestingly, Ireland has been senate-less only once in the 91 years since independence. In May 1936, de Valera abolished the Free State Senate, nineteen months before the 1937 Constitution came into operation, inaugurating a new upper house. The new Seanad sat for the first time on 27 April 1938.⁴

Identifying the problem

One of the arguments proposed by abolitionists in the present debate is that Seanad Éireann has no clear role or effect other than to waste tax-payers’ money.⁵ What commentators from the reform side have pointed out time and again is that focus on the excesses and questionable utility of the present Seanad is a sideshow aimed at distracting the public from the poor record of this and previous governments in effecting the much more difficult task of Dáil reform.

It is true that it can be difficult to justify the work of the Seanad. Its highest value can arguably be found in what the lower house has not done rather than in what it itself has achieved. The rushing through of bailout legislation in 2010 – admittedly with embarrassingly low levels of Senatorial oversight – and the stark unwillingness to debate important legislation in the present incarnation of Dáil Éireann should be serious causes for concern to any Irish voter being asked to increase further the powers and hegemony of Dáil Éireann. One of the most troubling episodes in this recent trend was the rushing through of legislation for the liquidation of Anglo-Irish Bank in February 2013. In this instance, conventions traditionally reserved for emergency powers legislation in time of war or grave crisis were resorted to in a move that seriously undermined the credibility of Irish democracy.

Every modern democracy must justify its need for a second chamber. In France, the Sénat provides increased representation to peripheral regions and to the French diaspora. In Germany, the Bundesrat (Federal Council) balances out the individual interests of the sixteen states that constitute the German federation. Similarly, in America, the Senate is a safeguard for federalism, balancing the voices of component states within the union regardless of population size.⁶ The state of Wyoming, for instance, with a population roughly the same as greater Belfast, sends its two senators to Washington the same as do California and Texas, the most populous of the United States. A country like Ireland can surely appreciate the importance of these mechanisms for small populations, diasporas, and island minorities within multi-ethnic and sprawling continental political systems.

Despite these important comparators, Ireland has been blinkered by its proximity to Britain into seeing the upper house of its nearest neighbour as the only possible template for such an institution, despite the fact that many of the innovations of Bunreacht na hÉireann draw from American, rather than British, political precedents. In Britain, the rationale for an upper house is one part historical and one part genealogical. The House of Lords is a place where the aristocracy can participate – or, more correctly, since 1911, commentate – on United Kingdom legislation. Thankfully, Ireland no longer has any great aristocracy in need of a chamber and a woolsack.⁷ For better or for worse, the virtual extinction of Ireland’s indigenous and planted aristocracy in the early seventeenth and late nineteenth centuries respectively has left Ireland with an atypical class structure when compared to most other western European states. As such, the aristocratic justification for a ‘Lords-style’ upper chamber is null and void in the case of modern Ireland. However, there are other compelling reasons for having an upper house in our small republic.

Historical precedents for an Irish upper house – the Home Rule Bills

When structural reform to the Irish constitution was first contemplated by Gladstone, Ireland became the guinea pig for a new model of government. In 1891, the Liberal party’s ‘Newcastle programme’ drew a blueprint for policies on everything from the establishment of a proto-welfare state to the inauguration of a non-hereditary upper house.⁸ When the Liberals returned to power in 1905 after a decade in opposition, the most recent research shows that it was Gladstone’s Newcastle blueprint that quietly piloted their programme for government. One element of the Newcastle programme was House of Lords reform. In 1909, the most controversial budget in British history provoked the House of Lords into embarking on the path of their own demise.⁹ When John Redmond, chairman of the Irish Parliamentary Party, found himself in the Nick Clegg ‘king-maker’ position in 1910, proposals for a third Irish Home Rule Bill became a topic of serious discussion. The idea of a federal Britain and a radically altered style of British bicameralism were both considered in the course of these deliberations in both press and political circles.¹⁰ By the end of 1911, after the British House of Lords had been effectively castrated by the Parliament Act, the drafting of a new Government of Ireland bill – the third Home Rule Bill – presented a unique opportunity to try out upper house reform on that island which had proved so valuable a testing ground for everything from education to police reform during the nineteenth century. Firstly, the upper house proposed under the third Home Rule Bill was to be called a ‘senate’, not a ‘house of lords’ as Ireland had had up to 1800.¹¹

The evolution of terminology over the four¹² Home Rule Bills is interesting. In 1886, the first Home Rule Bill proposed a unicameral legislature for Ireland consisting of two ‘orders’ sitting in unison. By 1893, the second Home Rule Bill outlined plans for an upper ‘Legislative Council’ of 48 and a lower ‘Legislative Assembly’ of 103 members. Only in 1912, were the terms ‘Senate’ and ‘House of Commons’ used in connection with the proposed legislature of Ireland. Whereas the two ‘orders’ outlined in 1886 had echoes of class, the estates, and social stratification, the terminology of 1893 was intended to assuage unionists by confirming the subordinate nature of Ireland’s proposed devolved institutions. The terms ‘legislative assembly’ and ‘legislative council’ used in the second Home Rule Bill were both in use in certain of the provinces of Canada at this time whereas ‘House of Commons’ and ‘Senate’ were terms reserved for the national legislature of the dominion of Canada. The implication here was that the Irish legislature proposed in 1893 was to be regional rather than national in status.

By 1912, it was acceptable to the British government and a majority of the Imperial House of Commons to confer the far more illustrious titles of ‘Senate’ and ‘House of Commons’ on the new legislative institutions proposed for Ireland. In 1920, when a Home Rule Bill proposed the establishment of two distinct parliaments, north and south, although the mode of representation was somewhat different to that which appeared in the 1914 Act, the nomenclature for both houses remained unchanged. This legislation became the Government of Ireland Act (1920) and, although rejected by republicans in the south, the act created the legislative framework under which the government of Northern Ireland operated right up until 1972. Throughout this period, the legislature of Northern Ireland consisted of a House of Commons and a Senate. Going back to the 1920s, when the Anglo-Irish Treaty was being hammered out at Downing Street in the closing months of 1921, Lloyd George had to spell it out to a new generation of Irish politicians that what was on offer was the exact same autonomy as that enjoyed in the dominion of Canada, and the parliament of the Irish Free State would have the same legal status as its Canadian counterpart under the agreement.¹³ These are the subtleties of terminology which had real currency in the four decades during which the shape and function of modern Irish politics was being moulded. When discussing the future of the Oireachtas, it is important that these lessons of the past are not lost on the citizens of modern Ireland.

In the first draft of the 1912 Home Rule Bill, the Senate was to be nominated, but this was subsequently amended in committee and, once established, the Irish Senate was to be elected by proportional representation on a single transferable vote (PR-STV) by the same electors as elected the Irish House of Commons. However, each of the four provinces was to be a constituency with each weighted by population size. Under the Government of Ireland Act 1914, Ulster, Leinster, Munster and Connaught would elect 14, 11, 9, and 6 senators respectively.¹⁴ If one is looking for a model on which to reform the franchise of the present Irish Senate, the principle of a provincial franchise could be a good starting point, even if the composition of a 26 county republic is quite different to that of the 32 county island as was on the table in 1912.

Seanad reform in independent Ireland

Moving on to the lessons that can be learned from the study of the upper house in independent Ireland, one thing that is difficult to understand in the present debate is why the Seanad has been singled out in effecting major reform in Irish politics. The financial argument only tells half the story. The precedent of 1936/37 points very clearly to what modern-day policy makers may have in store. Just as de Valera realised that if he was to enact changes to the bedrock of Irish legislation, he would need to get rid of an upper house in which Anglo-Irish members, Protestants, and even unionists would object to, and potentially thwart, his reforms.

If the 1937 Constitution is to be scrapped and replaced by a new ‘2013 Bunreacht na hÉireann’ this can only be done by an unchallenged Dáil enjoying one of the largest governmental majorities in decades. It is not the job of historians to predict the future, but the past tells us that if bicameralism is under-threat, then reforms amounting to the inauguration of a whole new constitution – either in substance or in fact – may very well be contemplated. The argument that the present constitution is old and rendered ‘tatty’ by multiple amendments will be trotted out, but the fact remains that, through the fundamental and implicit rights enshrined in Bunreacht na hÉireann and those subsequently identified through judicial review, the document of 1937 gives rights and safeguards to the family and the individual that would arguably never be reaffirmed by any of Ireland’s present political parties. One must ask: would rights such as bodily integrity or marital privacy¹⁵ be re-enshrined in law if we were now to throw out our present constitution and all it contains? Indeed, one of the greatest attributes of the document is that it harbours rights which are yet to be ‘discovered’ through the proactively of citizens and judicial review.

One argument which features in almost all previous literature on Irish bicameralism is that Ireland, as a unitary, non-federal state, does not need two tiers of representation.¹⁶ This is where the case for a new Seanad becomes strongest. In post-celtic tiger, post-bailout Ireland, one thing that is becoming increasingly clear is that divisions between core and periphery and between rich and poor are widening in Ireland. The twenty-six county republic is obviously less politically diverse that the thirty-two county island of a century ago but it is undeniable that regional variation exists almost as much in Ireland today as it did in 1913. Between this regional variation and inward migration, the idea of a relatively homogenous state no longer holds as much water as it did in the second half of the twentieth century. The idea that fair and proportional representation would be given to the provinces of the republic would allow senators to speak authoritatively with a mandate to represent the special economic and social concerns of the republic’s four provinces. A voice could be found for the three politically divided Ulster counties as much as it would allow senators to represent the concerns that are common to peripheral communities all along the western coastline as opposed to speaking specifically about the marginalisation of west Mayo, Connemara, or rural Limerick.

University reform

Moving from the 1912 precedent of regional representation, one of the strongest aspects of the present Seanad has been its ability to provide representation to graduates of Ireland’s universities. However, the narrow nature of this franchise has meant that, for decades, an increasing number, now the majority, of students graduating from third-level institutions have not received the same privileges as graduates of the National University of Ireland and the University of Dublin. As well as having the potential to provide a forum in which the distinct concerns of Ireland’s provinces can be heard, Seanad reform also offers an opportunity to extend the third-level franchise to students of institutes of technology.¹⁷

Looking beyond the horizon: international comparisons

When a decision needs some retrospective justification in Irish politics, there is a tendency to resort to a seemingly exotic and under-researched precedent from one Scandinavian country or other. In the present case, Finland, Denmark, and Sweden’s unicameral statuses are seen as ample justification for Ireland’s proposed Dáil-dominated future. It might be equally meaningless to state that Russia, Serbia, Turkey, and Kazakhstan also have single-chambered legislatures.¹⁸ Among EU member-states, the split is roughly even. 15 countries are unicameral while 13 are bicameral. However, this statistic occludes two unappreciated facts about bicameralism in Europe.

The first fact that this raw 15:13 split masks is that the prevalence of unicameralism in the EU is due only to the mass entry of former eastern-bloc countries since 2004.¹⁹ As table and figure 1 below show, over 70% (13/18) of pre-2004 member states are bicameral. Meanwhile, just short of 70% of the thirteen new accession states have single chamber legislatures. However, an East-West divide does not get to the heart of explaining patterns of bi- and uni-cameral national legislatures across Europe: arguably the strongest correlation between bicameralism and any other factor is population size.

Finally, in surveying unicameralism in Europe, its dominance in Scandinavian countries has a historical explanation. In Finland and Sweden, unicameralism stems from a desire by former governments to streamline a legislative process stretching across not two, but four chambers in a ‘tetracameral’ arrangement up to late nineteenth century. Under the rule of Tsarist Russia, Finland’s tetracameral Diet was rationalised following the 1905 Russian revolution and the unicameral Eduskunta first sat in 1906.²⁰

Ten out of twelve countries with eight-figure populations are bicameral whereas twelve out of fifteen countries with less than ten million inhabitants are unicameral. To get a sense of where Ireland sits in comparison to its neighbours, table 4 outlines how different sized EU member states divide by legislative system. Ireland has the second lowest population size of any bicameral member state; Slovenia, with roughly two million citizens, is the lowest. Incidentally, when legislative powers were devolved from Westminster to the Scottish, Welsh and Northern Irish assemblies, bicameralism was considered unnecessary for such small populations. If this is the case, bicameralism is a privilege, a positive addition to any legislative system and one usually justified by economies of scale.²¹ However, what this paper argues is that Ireland both needs and deserves a second chamber. Ireland is not a mere statelet nor does it share with Scandinavian or eastern European states a historical justification for unicameralism.²² Ireland is a fully fledged Wilsonian democracy and the stability and bicameralism it has inherited from the Westminster model, though seldom lauded, are highly positive attributes of its political system. It would be a huge disservice if, for the sake of €10 to €20 million per annum,²³ Seanad Éireann were to become the latest victim of imposed austerity.

The second fact that must be appreciated is that Ireland currently stands alone among the formally bailed-out and economically quarantined zones of Europe in having a bicameral legislature. Portugal, Greece, and Cyprus – all countries formerly under autocratic government – maintain systems of one-chamber rule. If Spain and Italy, as countries clinging to their economic sovereignty by a fingernail, are encouraged to follow the Irish lead and streamline their legislatures in a cost-saving exercise, then yet another layer will be added to the differentiation between the bicameral, prosperous, and stable core of Europe and the marginalised, unicameral pauper-periphery.

Towards reform

The unique composition and convoluted selection procedures of our present upper chamber are most certainly bizarre and out-dated.²⁴ The idea that representatives from different industrial, cultural, and vocational sectors would comprise the bulk of senators was one of two concessions made by de Valera to Catholic social thinking in the drafting of Bunreacht na hÉireann. The idea of vocationalism as outlined in Pope Pius XI’s 1931 encyclical Quadragesimo Anno is directly responsible for the presence of forty-three senators representing panels of various sections of Irish society.²⁵ It could also be argued that the dominance of corporate panels in the Seanad under Bunreacht na hÉireann was a shrewd concession by Éamon de Valera to the corporatism then au courant in Fascist Italy and much favoured by Eoin O’Duffy who, in 1937 was gaining popularity through his defence of Catholicism and the political right in the Spanish Civil War.²⁶ As if proof that the Seanad panels are no longer working were needed, it might come as a surprise to some citizens that between five and eleven senators have been put there at every election since 1937 as experts on industry and commerce ‘including banking, finance, accountancy, engineering, and architecture’²⁷ – clearly a group that have not been using their voices with sufficient volume or frequency in recent times.

The Senate of the Irish Free State constitution of 1922, can be seen as one of the most meaningful checks and balances – the other being our PR-STV voting system, which has been successfully defended by the people in two separate referenda²⁸ – designed to safeguard against the emergence of a Catholic, agrarian state in which minorities would have little or no voice.²⁹

Unlike its 1937 successor, the Free State Senate played an important role in debating issues such as the status of women, divorce, censorship, and inspection of prisons.³⁰ Senators like William Butler Yeats, who spoke eloquently on all the aforementioned issues, ensured that the assembly is remembered as having housed orators of note who brought fresh perspectives into Irish politics. This is one of the functions of the upper house that should be retained. Thus, this working paper recommends retaining the Taoiseach’s power to nominate a number of senators at each election although the present number – eleven – is too large as this was designed to copper-fasten the ruling party’s control of the upper house and not to facilitate the entry of non-political experts into the legislature. The Taoiseach is allowed under the constitution to bring two senators into Cabinet and, therefore, a more appropriate number of Taoiseach’s nominees would be five, just to give the Taoiseach of the day some room for substitution.³¹

By far the most popular, successful, and memorable of today’s senators have been those elected under the university franchise. In 1988, having used the Seanad as an important platform and his status as a senator to increase public knowledge of his cause, David Norris successfully secured the decriminalisation of homosexuality by taking a case to the European Court of Human Rights.³² Similarly, while she was a senator between 1969 and 1989, Mary Robinson was a pioneering campaigner for the removal of the Civil Service marriage ban, the inclusion of women on juries, and contraception. Interestingly, three of Ireland’s nine presidents were members of either the Free State Senate or Seanad Éireann. The current president began his transition from academia into the full time politics when he became a senator as one of the Taoiseach’s nominees in 1973. From Yeats to Norris, the upper house is the ideal forum for those independent and informed voices who would not otherwise gain representation in the hotly contested, and often carefully managed, Dáil constituencies. These are voices worth having. In times of crisis, they have pointed out the way that was right even if it was not the easiest path. In times of stability, they have looked beyond the obvious and striven to right long-ignored wrongs such as religious and sexual discrimination.

Historical conclusions: towards an improved Seanad

It is a good thing that this referendum has come about and reopened debate about the structures of Irish law making and government. Some of the greatest democracies in the world – America, France, and Britain – all have bicameralism hardwired into their political systems. The model of Irish government springs from the same roots as these polities. Our brand of liberty and republicanism is derived from France and America, the stability and durability of our democratic form of government is one of the most enduring legacies of British rule. The degree of oversight and protection afforded by an upper house may not be fully appreciated in modern Ireland due to the remarkable endurance of democracy here since 1922. Ireland is the exception rather than the rule in this sense. The majority of new European states founded in the turbulent aftermath of the First World War succumbed to totalitarianism from one end of the political spectrum or the other between 1922 and 1989. In the case of the Balkans, the region still struggles to control the tensions that boiled over in Sarajevo in July 1914.

It is not sensationalist to bring up these comparators when we speak of democratic streamlining. As recently as 2011, Hungary’s unicameral legislature passed the Magyarország Alaptörvénye, Hungary’s Basic Law, which has provoked international condemnation for establishing structures that will undermine democracy, embed Christian ideology into the legislative foundations of the state, and limit some basic civil liberties.³³ In cases such as this, unlikely as they are in an Irish context, an upper house remains an important institution in moderating the excesses of an over-zealous executive in a way that does not impinge on national sovereignty through resorting to supra-national arbiters such as the EU or the UN.

If the rationale for retaining Irish bicameralism is not federal or for oversight of the lower house then its justification is that it is a house designed to represent other voices and to give them a say in the legislative process. The Seanad should be an assembly that represents our aspirational rather than our actual selves – the composition of the Dáil has accurately represented the warts-and-all outlook of the Irish people since its inception.

In reforming the Seanad, this paper has shown that the importance of the Seanad is not to do things – after all this is a function of the executive rather than the legislature. The Seanad’s real purpose is to say things that would not ordinarily be said in Dáil Éireann and to provide a forum for marginalised yet essential voices that would otherwise not feature in the Irish legislative process. Senators should be a mix of specialised experts and minorities who would not benefit from – or succeed in – the popularity and election posters contests into which Dáil constituency elections have devolved. Like the proposed Senate of the third Home Rule Bill, it would be important to have popularly elected provincial representatives, persons who can think provincially rather than locally. For example, a TD will represent the interests of his or her constituents, but there is a tendency towards excessive localism and even clientelism in this model.³⁴ If politicians represented whole provinces – in a system not dissimilar to that which elects Ireland’s MEPs – they will not necessarily be freed from the constraints of party politics but given the size of their areas of responsibility, provincial senators would be more likely to rise above the parish pump and represent the differing concerns that present themselves in Ireland’s economically and socially diverse regions.

More importantly than provincial representatives, it is the unheard voices that need to be heard: the voice of the Irish diaspora; of the new-Irish; of travellers and other indigenous minority groups whether they be ethnic, social, or religious; and – after so many decades – the graduates of Ireland’s institutes of technology who are snobbishly discriminated against from the moment they are awarded their qualifications. This new generation of senators would not only provide diversity, it would also provide genuine scrutiny. Other voices, ideally free from the constraints of party whips and other mechanisms of partisanship, would provide a model for representation that leads the way rather than follows predictable paths on the international stage.

PART 2: PROPOSALS FOR THE COMPOSITION OF A REFORMED SEANAD

Below is a brief outline of how a new system of representation for Seanad Éireann could lead to a radically different chamber in both outlook and actions. In each case, historical precedents have been invoked to justify the inclusion of representatives of different groups in the new house. Keeping numbers static at sixty senators, the split would go as
follows:

In its present incarnation, only ten percent of the Seanad are directly elected by a section of the citizenry: namely the six university senators, who are elected by graduates of the National University of Ireland (NUI) and the University of Dublin (TCD). Vocational panel senators, meanwhile, are nominated and elected by other politicians. The present electorate for these forty-three seats consists of members of both houses of the Oireachtas as well as members of each county and city council nationwide.³⁵

Regional (provincial) section
Allocation: 25 seats
Historical justification: the third Home Rule Bill proposed that the Seanad be comprised of forty senators elected on a provincial franchise under the same electorate returning the House of Commons. Each province was allocated seats based on its size. Ulster, Leinster, Munster and Connaught got 14, 11, 9, and 6 seats respectively. Senators were to be elected by PR-STV for a term of five years and they were to retire en masse – upper house provisions in other Home Rule bills had proposed rolling representation. For instance, under the second Home Rule Bill (1893), the forty-eight members of the upper house were to sit for terms of eight years, with half the house retiring every fourth year to allow for a degree of continuity in the chamber.

Specifics: this section of the reformed Seanad would be elected by the same franchise as elects Dáil Éireann and provinces would be weighted as specified below. A potentially controversial element of this proposal is that representation for Northern Ireland within the Oireachtas has been factored in to the proposal. Care would have to be taken, both legislatively and politically, to ensure that the terms of the Good Friday Agreement be upheld. In no way is this proposal intended to row back upon the concessions made by the Republic in relinquishing the claims made on the North under articles 2 and 3 of Bunreacht na hÉireann repealed in 1998.³⁶

Representation for Northern Ireland as included here poses many potential problems, especially in terms of rolling out a new system of representation in the North. It would have to be stressed in the most emphatic of terms – and explicitly stated in the accompanying legislation – that the opening up of constituencies representing Northern Ireland in a Dublin parliament is not in any way intended to imply a claim to the governance of the North. The fact that the global Irish would be represented in the present model for a reformed Seanad sets a precedent for representation in the Oireachtas for persons living outside the jurisdiction of the state.

The historical justification for cross-border legislative representation stems from the Government of Ireland Act, 1920, which made provision for the establishment of a ‘Council of Ireland’, a joint body to work towards the reunification of the island.³⁷ Although the body was never called into being, it was enshrined in the founding legalisation of both parliaments of Ireland that such a body could exist. By founding a parliament in Stormont in 1921 under the Government of Ireland Act, the first Government of Northern Ireland gave implicit approval to the scheme. More recently, cross-border bodies established since 1998 have been widely successful.

To provide a forum for representatives of all communities in Northern Ireland to comment on southern legislation and governance would be a major benefit not only for Northern Ireland but these other voices would have an extremely positive impact in eroding the growing homogeneity of southern Irish politics. Finally, there would be a real incentive for unionists to vote and sit in Seanad elections. Non participation by the unionist community augurs the possibility of the Seanad seats for Northern Ireland being dominated by nationalist and republican voices. If cross community support for a Seanad franchise could be fostered in Northern Ireland then the benefits for all persons on the island of Ireland would be significant.

The three counties of Ulster in the Republic of Ireland have been separated out in the proposal for provincial representation for two reasons. Firstly, it would constitute a potential threat to the unionist community to lump Northern Ireland representation into a nine county constituency which would be overwhelmingly nationalist. Secondly, Cavan, Donegal, and Monaghan have their own special concerns as southern border counties. These include economic marginalisation, neglect in transportation infrastructure – especially in the case of Donegal – and lawlessness associated with the border. To give these three peripheral counties separate senators would ensure that such issues would not be buried under issues affecting Ulster’s core, centring on Belfast.

It is considered that voting in Northern Ireland for Seanad elections would best be conducted via postal ballot. The presence of polling stations for a Seanad election across Northern Ireland would not be desirable. This summer has re-emphasised that tensions around parading or any other public manifestation of politics would only serve to hinder forward progress in the North’s increasingly delicate peace process.

Taoiseach’s nominees
Allocation: 5 seats
Historical justification: under article 28.7.2 of Bunreacht na hÉireann, the Taoiseach may bring up to two members of the Seanad into cabinet. Although it is a good thing that ministers are democratically elected and accountable to their constituents, the ability to bring experts into cabinet as ministers is an essential privilege that may be required by a reforming executive in years to come. As such, this innovation of the 1937 document should be retained and safeguarded in any future reforms.

Specifics: The Taoiseach may nominate five senators in the same manner and under the same caveats as stipulated in article 18 of the present Bunreacht na hÉireann.

University section
Allocation: 15 seats
Historical justification: The allocation of extra representation to university graduates as a principle is not universally popular in Ireland. Legitimate concerns about the elitism of this practice exist. However, in a country with an extremely high uptake in third level education,³⁹ there are genuine benefits to maintaining a dedicated representation for graduates in the legislature. The first thing that reform would have to achieve would be to widen out the franchise to include all publicly funded third level institutions. If this were done, not only would new voices come into the Seanad, the franchise would give the best opportunity for the election and entry of experts into the Oireachtas. Summing up the potential for the university franchise to attract a diverse expertise to the Seanad, Senator and Professor John Crown explained in the course of an otherwise unruly recent exchange in the chamber:

I do not consider myself a politician but somebody with a real day job. I am somebody who because of the spirit of our original Constitution has found himself with the opportunity to take a position of advocacy, which I have done outside the House for many years, into the halls of our Oireachtas, as intended in the 1937 Constitution. I am sorry if I am not perhaps wise to the ways of politics …⁴⁰

That the expertise of professionals from a variety of sectors be incorporated into the legislative process is highly desirable. One of the best ways to achieve this is to maintain a third level representation and to widen it to include institutes of technology and the modern state funded third level sector.

Under the 1922 constitution, the universities had representation in Dáil Éireann. When the 1937 Seanad was established, it was stipulated that three senators were to be elected by and represent each of the two universities then extant in the state. The practice of recognising university graduates as a constituency worthy of representation in the legislature comes to Ireland from the a practice of the British House of Commons that lasted from the beginning of the seventeenth century up to 1950. While university representatives fell out of favour in post-war Britain, university senators in Ireland have proved to be among the most active and lively members of our upper house in recent decades. Apart from the numerous academics who found a voice in the Seanad through the university constituencies, these seats provided an early platform for a young Mary Robinson as well as for Michael D. Higgins, the current president.

Specifics: having taken full time enrolment figures for all undergraduate and postgraduate degree programmes at every state-aided higher education institution in the country, a scheme to allocate seats has been worked out empirically and an attempt to stick to a guideline representation of one seat per 10-15,000 of enrolment has been outlined below. Obviously this cannot be done with full proportionality but a fair attempt has been made. Notable issues with the table below which could benefit from further debate and revision include the under-representation of NUI Galway, TCD and UCC and the over-representation of NUI Maynooth [see table 5]. Only public institutions in receipt of state money have been included for two reasons. Firstly, to include private colleges would confuse the system immeasurably and also make it liable to periodic and unplanned changes in size. Secondly, the principle that institutions in receipt of state money should have the opportunity to contribute to the legislative process is a sound one.⁴¹ Only degree programmes have been included as per the present criteria for the Seanad electorate but there is no reason why this could not be broadened as appropriate after adequate debate and consideration.⁴²

Minorities section
Allocation: 10 seats
Historical justification: One of the obvious benefits of the Senate of the Irish Free State was that it gave representation to geographically scattered religious and class minorities, namely Protestants and the Anglo-Irish landed gentry. Neither of these minorities were sufficiently clustered in any part of the twenty-six counties to make their vote decisive in any one constituency, even under the PR-STV system. The same concern exists today in relation to ethnic and cultural minorities. One group that has been consistently shut out of Irish politics has been the travelling community. Reinforcing the grim outlook for the social inclusion of Irish travellers versus other minorities in Irish society, a 2012 study of the attitudes of Irish post-primary students by Roland Tormey and Jim Gleeson found that the 4,970 students surveyed felt a greater degree of ‘social distance’ from travellers than from any other group.⁴³ On the negative and racist reception received by non-Irish political candidates in recent Irish local elections, one need look no further than accounts of the 2009 local elections detailed by Bryan Fanning.⁴⁴ The need for upper-house representation and the utilisation of newcomer/non-national franchises to elect candidates is imperative if these groups are to receive a voice in Irish politics. Finally, Ireland’s gaeltacht areas have specific concerns and considerations. If the state is to take seriously the preservation and revival of the spoken use of Irish then a senator representing this section of the community would be a step in the right direction. Consideration might also be given to representing the interests of Ireland’s outlying island communities along similar lines.

Specifics: determining a franchise for these seats becomes a difficult issue but suggestions for a working solution might include some of the following criteria.

The travelling community franchise should be relatively easy to determine. Input from the travelling community should be sought on how votes should be cast – be it at multiple polling stations or by postal ballot. A register of electors could be kept in the same manner as the NUI and the University of Dublin currently keep a register of their own electors. The gaeltacht franchise could be constituted on a similar basis. Questions of fluency and duration and frequency of residency in gaeltacht areas might also be discussed. Teaching staff in the state’s gaelscoileanna and those working through the medium of Irish might also be included in this franchise.

By far a more difficult franchise to establish would be those for migrant workers and newly-naturalised Irish citizens. On the latter, perhaps the easiest and fairest system might be for anyone who has become an Irish citizen in adulthood to be allowed to vote for the ‘non-native citizens’ constituency for the duration of their lifetimes. Meanwhile, separate representation should be afforded to non-nationalised migrants living in Ireland. These would be citizens of other countries resident in Ireland for a period of more than two years.⁴⁵

Diaspora section
Allocation: 5 seats
Historical justification: The most obvious justification for the inclusion of this section is that Irishness in the modern world can only be fully understood in a global rather than a territorial sense. Mass waves of emigration in the 1950s, the 1980s, and today mean that there are significant numbers of Irish citizens living and working abroad. In many cases, these citizens departed out of economic necessity and the case could be made that they deserve political representation at home for this reason at the very least. With reference to the United States, the precarious status of illegal Irish migrants living there has recently become a serious political issue on both sides of the Atlantic and, as such, to give the Irish diaspora representation of this nature would be a major boost to those Irish citizens caught in this predicament.

Specifics: Electors for these constituencies would have to register for a postal ballot with their nearest Irish legation. The franchise could either be exclusively those holding Irish passports, those satisfying the criteria for Irish citizenship (whether relinquished or not), or all those either born in Ireland or with at least one Irish parent. Whatever the criteria for inclusion fixed upon, the precedent for overseas voting is established and runs smoothly in many other jurisdictions. Most recently, an inspiring example of this could be seen in Dublin city centre when at least one polling station was opened in Dublin to allow Tunisians resident here to vote in a new government in 2011 following the Arab spring.⁴⁷

PART 3: FINANCIAL CONSIDERATIONS
TOWARDS COST NEUTRAL REFORM

In proposing a reformed Seanad, I have already stated that upper houses are luxuries which can easily be justified in populous western nations. However, as a divided island with an internal minority and a global diaspora, Ireland’s history, geography, and demographics more than adequately justify the continued need for an upper house despite its small population size.

Envisioned costs

The reforms outlined here would bring with them some fresh costs. Elections are not cheap⁵⁰ and the upper house proposed here intends to have more than 90% of its members elected rather than appointed. Additionally, holding elections outside the state would raise costs further and estimating costs for these external elections would be difficult for an individual to accurately estimate.⁵¹ Dividing the total cost of the 2007 General Election by the number of seats (166 Dáil and 6 Seanad), one arrives at a very rough figure of €191,860 per contest.⁵² This estimate is corroborated by data from Northern Ireland where the office of the Chief Electoral Officer of Northern Ireland reported that the 2010 parliamentary elections in Northern Ireland cost on average £138,889 per constituency.⁵³ Thus, by making 49 new Seanad seats directly elected rather than nominated/politically elected, a theoretical maximum cost of €9.4 million would be incurred. Given that this relates to full Dáil constituencies, it can safely be assumed that the actual figure would be drastically lower. Additionally, Seanad elections would occur on the same day as a Dáil general election, thus the vast majority of running costs for the actual poll would simply be a fixed cost rather than a variable cost, especially in the case of the provincial franchise in the twenty-six counties of the republic where on-the-day costs would amount to little more than extra boxes and ballot papers. One of the hardest costs to estimate is the cost of extra-jurisdictional balloting – be it in Northern Ireland or in the wider world. Postal voting would easily be the cheapest and most straightforward option – it already operates in many countries around the world and the geographically spread out constituencies electing Ireland’s university senators already use the postal ballot system with no problems. More comments on the use of the postal service will be made below.

In justifying new costs to the state, savings would have to be found within the present system of representation to defray these new expenses.

Proposed savings

The first and most obvious way in which costs could be saved in the transition from the old to the new Seanad is by cutting members’ pay. Senators currently earn €65,000 per annum.⁵⁴ Pay cuts are a crude instrument but given the scale of their usage within the public sector in recent years, pay cuts for ‘new entrants’ – and in a reformed Seanad all members would be new entrants – would be in line with governmental policy. To take one very prominent example, new entrant graduate nursing staff are currently being offered contracts on 80% of current pay levels. If this principle were extended to politicians’ basic pay, significant savings could be achieved that would go a long way to rendering the reforms outlined here cost neutral. Cutting senators’ pay by 20% would save €780,000. However, returning to the point that reorganisation of the Dáil rather than the Seanad is the central issue in Irish political reform, if the 20% pay cut principle were applied to the €87,258 per annum salary of TDs, savings of almost €2.9 million could be achieved every year: more than enough to finance election and other costs associated with the new Seanad. It would be very difficult for TDs to claim they would struggle to live on their revised salary of €69,806 per annum given that it is more than the current salary of a senator. In the business of political reform, what is good enough for one house of parliament should be acceptable to the other.⁵⁵

In researching electoral costs, it was surprising to find that so much of election expenditure goes on postal services, the bulk of this associated with the mailing of candidates’ electoral literature to households. The total cost of sending polling cards and election literature to voters during the 2007 general election was a staggering €14.7 million, almost three quarters of what the government proposes to save annually through the abolition of the Seanad! To underline the flaws in the current system, electors in the University constituencies of the present Seanad receive a separate envelope for each candidate’s election literature. In the Dublin University (Trinity College Dublin) constituency alone, 20 candidates contested for 3 seats. Not every candidate availed of the Litir um Thoghchán (paid posted election literature) facility, but a heavy volume of state-paid mail filled with election letters came through the letter boxes of Trinity graduates in the weeks leading up to election 2011. If these letters were simply posted in a single large envelope, significant savings could be made. However, I would propose on environmental and economic grounds that the Litir um Thoghchán simply be scrapped. Polling cards may or may not be a legal necessity but in an era of photo ID, if these too could be done away with then savings amounting to €14.7 million at every election could be achieved.

One other new cost associated with the reformed representation of the Seanad is the inclusion of seats for the Irish diaspora. Some form of payment would have to be made to house these senators who are not ordinarily resident in the state. At present, EU scholarships for senior academics pay €1,000 per month to ‘experienced researcher[s] with family obligations’ relocating from the wider world to host institutions within the EU.⁵⁶ If this is taken as the internationally acceptable level of stipend, then the five senators who would be relocating here would require a combined sum of €60,000 in additional expenses for this purpose.

In attempting to find a corresponding saving from present Oireachtas expenditure, the question of stationary and postage would appear to be an obvious and painless solution. At present, each senator receives 375 envelopes per month for the purpose of corresponding with constituents. TDs receive 500 per month for the same purpose. The combined cost to the taxpayer is at least €145,800 per annum for senators’ envelopes alone. The combined cost of TDs’ and senators’ envelopes appears to cost an unbelievable €683,640 per annum.⁵⁷ In a world where technology has moved us beyond snail mail to the point that members of the Oireachtas deemed it justifiable to vote through the purchase of tablet computers for members of both houses, continued expenditure on mountains of official state envelopes seems wasteful to the point of incredulity.⁵⁸ Taking the most conservative estimate for the Oireachtas’ envelope scheme, the projected saving of €683,640 from this rationalisation would more than adequately finance the estimated €60,000 needed for relocation allowances by a diaspora panel in the Seanad with some extra money left aside to finance the cost of extra electoral contests.

Because the reforms outlined are compositional rather than structural, the majority of costs would only occur every five years when there was a general election. With the exception of providing extra living allowances for diaspora senators as already outlined, additional costs would be electoral rather than annual. Thus, it might be more accurate to state that additional estimated costs would run to €9,760,000 every five years and savings to €36,503,360. Thus, the net savings to be made by implementing the above cuts while simultaneously reforming Seanad Éireann would amount to €26,743,360 every five years or an average of €5,348,672 per annum. If the government are intent on saving €20 million per annum through the abolition of the Seanad there is little that can be done, but these suggestions would achieve up to a quarter of the savings desired.

CONCLUSION

On Friday, 4 October, the Irish people will be asked a simple question. They will be asked to keep Seanad Éireann in its current form or to abolish it altogether. This Hobson’s choice has skewed the debate immeasurably. Furthermore, it splits the vote, with reformists being dragged away from the middle ground towards two poles. Just because it will not be on the ballot, the middle ground option of reform remains a real and viable option. This third way contains the best of both worlds; it addresses the flaws of the present system while acknowledging that there are undeniable benefits to bicameralism and that it is a system worth saving. The question that reformists face is whether to abolish and then build on the rubble or to leave the old structure standing until a new and better system can be designed. This paper would argue that there is only one option and that is to vote no to abolition and, after the present Seanad is saved, to work in earnest towards a real reformation of the governance of Ireland to include Dáil, Seanad, and local government reform. A yes vote in the upcoming referendum would signal approval for unicameralism and the present government has made it very clear that it does not intend any further action on upper house reform if the proposal to abolish the Seanad is carried.⁵⁹

To kick-start this reform agenda, what has been presented here is a comprehensively thought-out and costed version of what shape a new senate might take. It is by no means the only format possible for a reformed Seanad. Instead, it represents a framework, outlining the possibilities as well as the pitfalls that any government might face in drafting legislation for the reform of Seanad Éireann.⁶⁰

In terms of voting, what is being put to the people next month is a false dilemma and it will skew the ballot significantly in the abolitionists’ favour by splitting reform voters down the middle. Some reformists will accept that the present Seanad should be abolished and will be placated with the dream that a new chamber – or local government reform – can be designed from scratch once the ground has been cleared. Others will wish to see the present Seanad retained until such time as comprehensive proposals for the reform of both houses of the Oireachtas and local government can be drawn up and debated.

The truth is that the Seanad is not a free standing structure that can be torn down without any impact on other institutions.⁶¹ It is in fact a pillar, and alongside other pillars, it holds up the Irish system of government. Some states, most notably some Scandinavian countries and New Zealand have undertaken to strengthen local government or to create a strong and re-designed single chamber before they tore down their upper house. In Ireland, we have moved in the demolition equipment on a load bearing structure before we have even drawn up the plans for what will go in its place. A reformed Seanad would fill the gap admirably. It would render the architecture of Irish government practical, aesthetically pleasing, and highly innovative. The composition of a reformed senate would make Ireland a leader and not a follower in governmental reform on the international stage. It would be a beacon to other political systems in need of reform. The retention of bicameralism holds within it huge potential for Ireland. However, none of this can be achieved if the people signal their acceptance of single chamber government. If the vote next month is a yes then the issue will forever be put to rest, a national debate will end, and a great opportunity will be lost. The reformists must not allow themselves to be split. Retention is the first step to reform and the construction of a better and more inclusive legislature for all.