TAOISEACH ENDA KENNY last week affirmed that his plans to abolish the Seanad, with a referendum provisionally pencilled in for October.
The Taoiseach said his plans were for the Seanad to remain in place, even after the abolition, until just before the next general election – thereby ensuring that the existing balance of powers between the Dáil and Seanad are not immediately skewed.
One of the benefits of delaying the abolition of the Seanad is that it also gives the Government some time to decide how the Seanad’s specific powers, and unique place in the Constitution, should be adjusted if the Seanad was surgically extracted from the document.
Obviously the abolition of the Seanad would make the Dáil the only house of the Oireachtas, meaning it is the only chamber which debates and approves legislation – so all of the parts dealing with the passage of legislation would need to be rewritten.
But what other, less obvious consequences are there if the Seanad is scrapped?
We’ve gone through the current Constitution to see exactly what happens if the current role of the Seanad is wiped away.
While many executive presidents (like Barack Obama or Francois Hollande) have a nominated Vice-President, who fills in for them as head of government, ceremonial presidents like Michael D Higgins have no single designated stand-in.
Ireland’s Constitution instead establishes a ‘Presidential Commission’ of three people, who fill in for the President if he is away, incapacitated, or otherwise indisposed.
14.2.1° The Commission shall consist of the following persons, namely, the Chief Justice, the Chairman of Dáil Éireann (An Ceann Comhairle), and the Chairman of Seanad Éireann.
14.2.4° The Deputy Chairman of Seanad Éireann shall act as a member of the Commission in the place of the Chairman of Seanad Éireann on any occasion on which the office of Chairman of Seanad Éireann is vacant or on which the said Chairman is unable to act.14.4 The Council of State may by a majority of its members make such provision as to them may seem meet for the exercise and performance of the powers and functions conferred on the President by or under this Constitution in any contingency which is not provided for by the foregoing provisions of this Article.
The idea behind this clause is that there’s always a committee of three, and a majority of those members (i.e. two out of the three) can act if there’s a disagreement between them about the matters at hand, such as referring a Bill to the Council of State to discuss if it is legal.
But what happens if this committee of three becomes a committee of two – with only the Chief Justice and the Ceann Comhairle as members? Having an odd number of members means there’s never a logjam – but if two people, acting as co-vice presidents, can’t agree…
The only way to get around this would be to specifically identify one of the two members as being more senior than the other, and who holds the casting vote if there is a dispute. (This is probably the Ceann Comhairle, who at least is a TD, unlike the Chief Justice has no public mandate whatsoever.)
But giving the Ceann Comhairle a greater say than the Chief Justice (for example) means the Chief Justice’s voice is effectively worthless – and the Ceann Comhairle has the power to act unilaterally to resolve any dispute.
This means that the Ceann Comhairle becomes an unofficial Vice President of Ireland – fulfilling all the jobs of the President if the President isn’t there to do so themselves.
As already mentioned, many of the articles about the passage of legislation – saying legislation (almost) always needs to be passed by both houses, and outlining the cases where it doesn’t – would become a lot simpler.
However, the clauses about ‘Money Bills’ – legislation dealing specifically with taxes and fundraising – illustrates the balance of powers which shifts discreetly to the Dáil.
Currently, if the Ceann Comhairle declares something to be a ‘Money Bill’, the Seanad doesn’t have the power to amend it. If the Seanad disputes this, it can ask the President and the Council of State to set up a Committee of Privileges to rule on whether it is a legitimate Money Bill or not.
(In the history of the State, no such committee has ever needed to be summoned – the clause exists largely to cover the rare situation where a government does not enjoy a majority in the Seanad.)
As a side note here, the removal of the Seanad would mean a very explicit reminder on the Dáil’s power to legislate in a crisis. Article 24.2 says the Seanad has 90 days to consider legislation sent to it by the Dáil, or else its power to amend it lapses and the Bill is considered passed.
The same piece also governs how the Taoiseach can advise the chairmen of both Houses, and the President, that the usual time constraints shouldn’t apply in cases of national or global emergency. The President must consult with the Council of State to approve this curtailment.
If there is no Seanad, however, the role of the President and Council is bypassed: emergency legislation through the Dáil is enough to change the law.
This leads us to another measure which, in practical terms, may have little impact – given how the Dáil and Seanad have, historically, always been on the same page – but which has a greater philosophical impact if the Seanad is removed.
25.2.2° At the request of the Government, with the prior concurrence of Seanad Éireann, the President may sign any Bill the subject of such request on a date which is earlier than the fifth day after such date as aforesaid.
If the Seanad no longer exists, the government needs no outside approval if it wants to bypass the usual five-to-seven-day waiting period for the President to sign something into law.
The logic behind the delay in signature is that the President should be given enough time to consider whether the law in front of him is in keeping with the Constitution. If he fears it may not be, he can summon the Council of State to ask its advice.
This power may need to be redefined or adjusted if the Government needs no other approval before it urges the President to waive this period. Controversial legislation could be placed in front of him at a moment’s notice, with the demand from the Government that it be signed.
(Of course, in real terms, this is not necessarily much different to what happens now: the Seanad, when controlled by the Government, piles exactly the same amount of pressure anyway – the difference, in the Seanad’s absence, is only a little more than academic.)
There are some notional upsides to this – it means the President’s role is slightly augmented, as he is the main obstacle between the Government and total power to change the country’s laws.
27.1 A majority of the members of Seanad Éireann and not less than one-third of the members of Dáil Éireann may by a joint petition […] request the President to decline to sign and promulgate as a law any Bill to which this article applies on the ground that the Bill contains a proposal of such national importance that the will of the people thereon ought to be ascertained.
This is one of the most evident ways in which the removal of the Seanad would require a more fundamental change of other procedures. This clause says the President has to consider ordering a referendum on any controversial legislation, if a majority of the Seanad and a third of the Dáil agree.
So what happens if there’s no Seanad? If the existing rules were otherwise left alone, you’d only need a third of the Dáil – 53 TDs, after the next election – to sign a petition before the President has to consider a referendum. In previous eras that could mean that the largest opposition party alone would have the power to demand a referendum.
Indeed, if the Dáil was the only house of parliament, it’s difficult to see what need there would be for this clause at all: if a majority of TDs have already approved a Bill, without any provision demanding a referendum, then why would the Constitution grant the opposition the automatic power to ask the President for a public vote?
The constitution currently gives the Oireachtas the power to remove certain people from office if they feel there is good reason to do so.
33.5.1° The Comptroller and Auditor General shall not be removed from office except for stated misbehaviour or incapacity, and then only upon resolutions passed by Dáil Éireann and by Seanad Éireann calling for his removal.
Though the Seanad has almost always been in harmony with the Dáil, the removal of the Seanad would mean the Comptroller & Auditor General – essentially the State’s accounting and spending watchdog – can be kicked out of office if the political mood takes the Dáil.
Right now – in theory, at least – some Senators could defect from the government parties and block the removal.
Similarly…
35.4.1° A judge of the Supreme Court or the High Court shall not be removed from office except for stated misbehaviour or incapacity, and then only upon resolutions passed by Dáil Éireann and by Seanad Éireann calling for his removal.
Similarly, the removal of the Seanad removes one of the checks upon the impeachment of judges: a simple majority of TDs would be enough to remove members of the Supreme Court.
If TDs were to take issue with an unpopular ruling, they could describe that ruling – and its side-effects – as symptoms of incapacity and try to start a political procedure against the removal of judges.
(‘Incapacity’ usually has a stricter legal meaning, dealing with someone’s incapability of doing their job on health grounds – so the legitimacy of any attempt here would be on very thin legal ice.)
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