October 4th 2013: Irish 32nd & 33rd Constitutional Referendums: Abolishing the Seanad & creating a Court of Appeal

Bar one, I have voted in every Irish General Election, Constitutional Amendment Referendum and Presidential Election since I was eighteen. Despite the fact that in recent decades the activities of Governments having become increasingly disappointing I still get a tingle as I walk into the polling station. But I have never felt the same way about the Seanad elections and in fact I have never exercised my right to vote for one of the six Senators elected from the universities.

When the Government announced their intention to ask us to abolish the Seanad I suddenly felt like I did when I was young and my Mother threatened to throw away one of my neglected toys. Of course this is a little more serious so I decided to look into exactly what the Seanad does to see if it was worth saving.

Everything below (in italics) is directly from Oireachtas.ie

The Seanad

The Irish Upper house has 60 Senators.

  • 43 elected by five panels representing vocational interests namely, Culture and Education, Agriculture, Labour, Industry and Commerce and Public Administration
  • 6 elected by the graduates of two universities: – three each by the National University of Ireland and the University of Dublin (Trinity College)
  • 11 nominated by the Taoiseach

In theory, Seanad Éireann does not recognise party affiliations.
However, as the electorate for the panels is made up of the Members of the incoming Dáil, the outgoing Seanad, county councils and county borough councils, the composition of Seanad Éireann, including the Taoiseach’s nominees, will tend to reflect party strengths in Dáil Éireann.

In practice, Senators will divide into groups supporting and opposing Government business when voting on issues.

The Constitution provides that not more than two Senators may be members of the Government and this provision has been exercised twice in the last 60 years.

How does the Seanad work?

Seanad Éireann normally meets on Wednesdays and Thursdays and its main business is the revising of legislation sent to it by Dáil Éireann.

However, in recent years the Government has tended to make greater use of Seanad Éireann to initiate legislation. Seanad Éireann can initiate and revise legislation but under the Constitution its legislative role is restricted in that it cannot initiate Money Bills i.e. financial legislation, and can only make recommendations but not amendments to such Bills.

The fact that a Dáil Bill must be examined also by Seanad Éireann is a safeguard against legislation being enacted too quickly. In addition to its legislative role, Seanad Éireann also debates important issues.
Indeed, as the Government is constitutionally responsible to Dáil Éireann, Seanad Éireann can debate these issues with greater freedom because the fate of the Government will not be at stake.

Moreover, Seanad Éireann cannot delay indefinitely legislation which has already been passed by Dáil Éireann and cannot initiate Bills to amend the Constitution.

The 32nd Amendment to the Constitution:

Seanad Abolish or Reform?

One of the reasons Taoiseach Enda Kenny proposed the abolition of the Seanad is because no reforms have been introduced since it was established. Would you kill an injured person whose intellect might help you instead of tending to their wounds?

The Seanad is in place so that the Bills from the Dail can be scrutinised further. This means that when a bill is first proposed and discussed by the members of the Dail. They have in mind that it will have to go through the Seanad. Take the upper house out of this equation means the Dail members will be given more power. The state of our country today is because of the choices of those politicians (don’t tell me that Fine Gael or Labour would have acted any differently leading up to or during the economic meltdown of 2007/2008). Do you really think that taking the safeguard of the Seanad away is the answer?

But there remains the problem that any bills to reform the Seanad have been rejected by that house. Some Senators have said they would welcome reform instead of abolition but the twist here is that the Seanad cannot introduce legislation to reform itself, though this has not stopped Senators Katherine Zappone nor Fergal Quinn from drawing up proposed reforms themselves.

The question of the Seanad has been discussed by The Taoiseach since at least 2009 and is part of the programme for Government. But other parts of that programme have been scrapped e.g. renegotiating the loan structure to the EU. Why is the Government holding onto this particular promise? Perhaps it is another smokescreen so that the attention of the public and press can chew on this bone while the Government prepares yet another austerity budget or implement other such dictates from Europe.

Taoiseach Enda Kenny is taking a medieval decision of killing the patient instead of bravely trying to succeed where previous Governments have failed by introducing proper 21st Century reforms that would

  • create a fit and healthier political atmosphere this country sorely needs
  • prove that he has actual political teeth and be the highlight of his first term as Taoiseach.

He could have chosen to try restore the Irish People’s faith in Politics and beefed up his legacy.

The 33rd Amendment to the Constitution:

A New Court of Appeal

October 4th 2013 will see us be voting on a separate and equally important referendum on a new Court of Appeal which will help to clear the backlog of cases awaiting hearings in the High and Supreme Courts. In the last four years the waiting period for trials in the Supreme Court have increased from two-and-a-half to four years and this affects our standing and has incurred fines from the European Court of Human Rights.

A Yes Vote here will

  • Streamline our Justice System
  • Making Ireland a little more attractive to foreign investors.

There is no opposition to this amendment that I can find online. (see Jane Doe’s comments below for an opposing view).

 

In case I wasn’t clear enough I am going for a No (to abolition of the Seanad) vote on 32 and a Yes (to a new Appeals Court) vote on 33

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8 responses to “October 4th 2013: Irish 32nd & 33rd Constitutional Referendums: Abolishing the Seanad & creating a Court of Appeal

  1. The Senate was a contrivance to partly establish a form of corporatist political structure which its promoters thought would mirror the then regimes in Portugal and Italy. It was a pretty bonkers idea and de Valera made sure that the version of it that came into existence would not interfere with the real national governing body which was and is the Dáil. It’s a dead bracnch and should be lopped off.

    There is no point in trying to reform it. If the purpose of reform is better scrutiny of legislation then obviously this should be done before the legislation is passed by the Dáil and not afterwards. So: by better informed Committee work. If the purpose of Senate reform is to provide a platform for Sixty Very Wise People who will tell us how to manage ourselves then the idea is as bonkers as the original one was.

    • Thanks Donal,

      I should have known that you would disapprove of the Senate!

      Perhaps integrating the two is the answer but then my objection still stands, we should not abolish the senate until such integration has been achieved, without the Senate the Dail, has too much power.

  2. Say No to bogus Flawed Referendums, THE CONSTITUTION (ONE HUNDRED AND FIFTEENTH AMENDMENT) BILL, 2011
    http://www.prsindia.org/uploads/media/Constitution%20115/Constitution%20115,%2022%20of%202011.pdf

    Joint Committee on the Constitution
    Fifth Report
ARTICLE 15 OF THE CONSTITUTION
REVIEW OF THE PARLIAMENTARY POWER OF INQUIRY
    http://www.oireachtas.ie/documents/committees30thdail/j-constitution/reports-2011/Fifth_Report.pdf#page=68
    Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011
    http://www.oireachtas.ie/documents/bills28/bills/2011/4711/b4711dp.pdf
    THIRTIETH AMENDMENT OF THE CONSTITUTION (HOUSES OF THE OIREACHTAS INQUIRIES) BILL 2011
    http://www.oireachtas.ie/documents/bills28/b4711d.pdf

    Corporations Amendment (Further Future of Financial Advice Measures) Bill 2011

    http://futureofadvice.treasury.gov.au/content/consultation/corporations_further/downloads/FOFA_T2_Bill.pdf

    Report on Reasons Behind Voter Behaviour in the
    Oireachtas Inquiry Referendum 2011 on January 2012
    http://per.gov.ie/wp-content/uploads/OIReferendum-Report-Final-2003-corrected.pdf

    DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
    PUBLICATION OF BILL AMENDING CONSTITUTION

    http://d2zmx6mlqh7g3a.cloudfront.net/cdn/farfuture/87_p2i54eGH07hbtqbs4MssM2W_F-sa9WWmRTqVRt08/mtime:1296729070/files/bills/110121constitution-amendbill_0.pdf

    MILITARY VETERANS BILL
    http://d2zmx6mlqh7g3a.cloudfront.net/cdn/farfuture/Z1zeLkd4SqN6vBFC9_aOj-INo1RDDwdq-k3rhtPMuRQ/mtime:1295616256/files/bills/110121b1-11.pdf

    Co-operative Amendment Draft Bill
    http://d2zmx6mlqh7g3a.cloudfront.net/cdn/farfuture/LwiNk9Mre-_CXv4jjElStYLtKYg0oKfdFqktHVjQQeM/mtime:1296121530/files/bills/110121co-operativesbill.pdf

    http://d2zmx6mlqh7g3a.cloudfront.net/cdn/farfuture/uT-pa2cRraaqN3p0f6YC2nCEyhB0ykB2iiNkUVJLQG8/mtime:1323172010/files/bills/111206a18-11.pdf

  3. To play Devil’s Advocate for a moment, there are several arguments against the Court of Appeal. These arguments stem from the fact that the proposed Court of Appeal and Supreme Court will hear appeals consecutively, as opposed to appeals being filtered and sent to one court or the other. The effect of this is that there is no sensible division of labour between the two courts, e.g. the Supreme Court might have taken all constitutional/public interest appeals and the Court of Appeal take the more humdrum work.

    This creates two problems. First, given that an eight-person Supreme Court allowed a four and half year backlog to build up, it is not at all clear how a ten-person Court of Appeal will fare any better. Remember, all appeals will initially be heard by the Court of Appeal, with a small number going on to the Supreme Court. There is a risk therefore that the backlog will simply build up at the Court of Appeal stage.

    Secondly, the consecutive system means that some litigants will face three hearings, i.e. High Ct, Court of Appeal and Sup Ct. Litigation in Ireland is still very expensive, and the requirement for a third hearing may increase costs by 50k to 100k. Irrespective of which side bears these costs (the loser usually has to pay all of the winner’s costs), it imposes a significant burden. And a burden which is avoidable if appeals were allocated to one OR other of the courts from the outset.

    Finally, it is ironic that Polling Day is the last day of the courts’ nine week summer vacation.

    • Thanks for your comment.

      Good to hear the argument against the Court of Appeal (I wrote this blog when they initially announced the referendums).

      How high is the risk of the backlog building up at the proposed Court of Appeal stage?

      Will it not help the Supreme Court deal with their own back log while cases begin filtering through the Court of Appeal?

  4. There is a one year transitional period during which the Sup Ct can transfer existing appeals to the Court of Appeal. This could allow the existing 600 appeals to be “shared” between the two courts initially.

    My concern is that, once the transitional period expires, a ten-person Court of Appeal will not be much faster than the existing eight-person Supreme Court. Remember, the Court of Appeal is expected to deal with constitutional/public interest cases as well as run-of-the-mill appeals, so its workload will not be much different to that which the current Supreme Court faces.

    There are currently between 500 and 600 appeals brought each year, and the Sup Ct was only able to deal with between 200 to 250 (sometimes the appeals are simply withdrawn). If the appeals were divided between the courts, this figure of 200 to 250 could be increased substantially. The proposal, however, is to reroute all appeals to Court of Appeal in first instance.

    • That does shine a new light on the vote.

      I have amended my blog so that people are aware that your comments are providing a more balanced view of the referendum.

      Thanks Jane.

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