| The legislative role of the Seanad |
| Sunday, 04 December 2005 | |
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In Dublin on 8 December 2005, speaking at the launch of a new legal publication , I said: First let me make clear that I speak not as any kind of legal expert, but merely as a journeyman lawmaker. My perspective is that of a person who has been, for close on 13 years now, involved with the day-to-day business of scrutinising Bills on their way to becoming the law of the land. Nobody seriously questions the need to have a legislature. But many people, loudly and often, question our need for a second House in that legislature. To them, the Seanad is an unnecessary duplication of the Dáil. This becomes plausible when you look at the course a Bill follows to become law. When a Bill enters a house of the Oireachtas it must pass through what are formally five stages, but in practice are only three – the 2nd Stage where the measure is discussed in principle, the committee stage where it is scrutinised line by line, and the report stage where the ends are tied up and the final decision made to pass the Bill. In our system, having passed through these stages in one House, it must then go right back to square one and start the whole process all over again in the second House. If that second House makes any changes, then they must go back to the first House to be approved, before the Bill can be sent up to the Park for the president to sign. Looked at from the point of view of an efficiency expert, this does certainly seem quite crazy – all the more so when you realise that it can take months (and in some cases, even years) for a Bill to jump through all these hoops. As a business person myself, coming from a way of life where we are all meant to be focused on getting things done quickly, how can I possibly defend such an arcane system? Well, I do defend it – for several reasons, which I will now briefly sketch out for you. My main argument is that the Seanad is not a clone of the Dáil. It is different in membership, it is different in style, it is different in the way it does business. These differences are obvious to anyone who takes the trouble to watch our proceedings, as you can now do very easily over the internet. In terms of membership, there is something of a gap between theory and practice. The original theory was for the Seanad to be primarily a vocational body – elected from the various streams that together make up Irish life. So have an administrative panel, an agricultural panel, a cultural and educational panel, an industrial and commercial panel, a labour panel, and so on. There is a long list of nominating bodies that have the right to put forward candidates for each panel. Unfortunately, nominating candidates is one thing, electing them is something different. The people who elect the panel candidates are a very small constituency indeed – the members of local authorities across the country, and the members of the Dáil. That electorate numbers about 900, and its make-up means that membership of the panel seats falls squarely within the ambit of the party political process. Most, if not all, panel Senators are members of the various political parties. That's hardly surprising, given the make-up of the electorate. And panel Senators account for 43 of the 60 members of the House. Eleven of the remaining members are nominated by the Taoiseach of the day – a device designed to ensure that the Government always commands a majority in the House. It has become a tradition that the Taoiseach's 11 include a number of non-party people – most notably, people drawn from the communities in Northern Ireland. In today's Seanad, for instance, Senator Maurice Hayes, who was formerly a distinguished public servant in Northern Ireland, is one of the Taoiseach's nominees. Last, and if I may say so, far from least in this equation are the six members elected by university graduates – three by NUI graduates, and three by graduates of TCD. I myself am a university senator, elected in the NUI constituency. Though flagrantly undemocratic in one sense – since it gives certain university graduates two votes instead of one in electing our national parliament – in another way we are the most democratically elected senators, because we are elected by direct vote of the people concerned. Last time round, the NUI constituency numbered over 120,000 and it is growing by leaps and bounds every year. Over the years, the university members of Seanad Eireann have played a role out of all proportion to their numbers, and I am very proud indeed to be on that roster. Overwhelmingly, university senators are independent members – and that means independent not only of political parties but also independent of each other! Together, we add a rich mix of backgrounds and philosophical approaches to our job. So what you have in the Seanad membership is an eclectic mixture – a mish-mash, if you like – that gives the chamber a character quite different to that of the Dáil. Even though most of the members are politicians, they are not politicians in quite the same way as Dáil politicians are. And in the Seanad they encounter an atmosphere that is quite different from the highly adversarial nature of the Dáil. We are polite to each other, we listen to what the other person says, and for the most part we are not slow to admit that we are in agreement – even across the barrier of party divides, a barrier that sometimes seems so high as to be unsurmountable in the other House. It's important to remember that under our Constitution the government of the day is not answerable to the Oireachtas, it is answerable only to the Dáil. So there is, for instance, no Ministers' question time in the Seanad. Some see this difference as a weakness of the Seanad. I, on the other hand, see it as a strength – one that allows us to focus on our two central tasks, which are to scrutinise all legislation and to hold debates on matters of national interest. An indication of how differently we behave is the virtual absence of the guillotine in the Seanad. In theory, the Government can always enforce a guillotine. In practice, it almost never does so. This is particularly critical at the committee stage of a Bill. If, in the Dáil, the government enforces a guillotine at committee stage, this means that when the guillotine falls all government amendments are deemed accepted, even if they have never been even discussed! This opens up a dangerous gap in parliamentary scrutiny which can have quite serious implications. In the Seanad, on the other hand, we take our time if we need to do so. In general, we put through legislation very quickly, far more quickly than in the other House. But when a Bill goes into committee, we know that we won't have to let it go until we are satisfied that we have done with it. That, and the fact that we take Bills in a committee of the whole House rather than in a more restricted select committee, makes possible a quite different level of scrutiny of all Bills as they pass through the Seanad. So it is possible in our Seanad for us to have filibusters – yes, just like they do in the US Senate in Washington. Mind you, they are rare: I can remember only one occasion during my years in the Seanad. It happened because the government wished to push through quickly a massive copyright Bill that ran to nearly 200 sections. The reason for the haste was merely to placate the US government, which had been complaining about Ireland's tardiness in bringing our copyright legislation up to date. For that not very good reason, the government set itself a target of having the Bill passed by one House before the summer recess of a particular year – I think it was 1999. The fact that we were being asked to steamroll through a Bill just to save the government's face with the Americans was too much for the Seanad, so a small group of us mounted a filibuster at committee stage. After we had kept the House in session until well after midnight, the Government eventually saw sense and backed down. I regarded it at the time, and still do, as a victory for common-sense. But we are not always in conflict with the government. There is sometimes a greater readiness on the part of Ministers to accept non-government amendments to a Bill in the Seanad than they are in the more highly-charged atmosphere of the other House. I can't argue that this is always the case: sometimes a junior Minister will be sent into the Seanad to ram through a Bill without accepting any amendments. When this happens, it treats the Seanad as a rubber-stamp, and not surprisingly is highly resented by Senators. You might be surprised to know how often the Seanad's “second look” at a Bill produces worthwhile results. Mistakes happen, even though every Bill these days comes even to its first House only after careful consideration by civil servants and widespread consultation among interested parties. Yet, sometimes, things do fall between the cracks. Let me give you an example. Shortly after I became a senator, back in 1993, the first of what became a raft of equality legislation went through the Dáil. This one was, I think, called the Equality in Employment Bill, and focused on the issue of unlawful dismissal. I remember there was a great deal of self-congratulation surrounding this Bill, because it established for the first time in law sexual orientation as a ground for discrimination in employment matters. This Bill went through the preliminary consultation process, eventually passed all stages in the Dáil, and then arrived for the final accolade in the Seanad. Before committee stage I glanced over the eight grounds of discrimination that were set out in the Bill, and it suddenly struck me that one important ground had been totally left out – discrimination on grounds of age! Incredible as it may seem, the Bill had gone through all the usual scrutiny at this point, and nobody had noticed this glaring omission. I'm happy to say that the Minister responsible – Mary O'Rourke, who is now Leader of the House in the Seanad – immediately admitted their mistake and graciously accepted my amendment. That particular Bill was later thrown out by the Supreme Court as unconstitutional, but in all later equality legislation the age ground was firmly embedded as a ground of discrimination. Ironic, perhaps, to find an employer being responsible for the strengthening of employees' rights in a piece of legislation, but that is the way things can happen in the Seanad. Mind you, my own belief is that the system works at its best when the Seanad's scrutiny of a Bill is the first look rather than the second. As you may know, under our Constitution, most Bills can be introduced in either House – an exception is what are known as certified money bills, of which the annual Finance Bill is an example. But mostly, it is a matter for the sponsoring Minister to choose whether to introduce a Bill in the Dáil or the Seanad. When I first became a member a Seanad-initiated Bill was a fairly rare thing, but I have seen that change over the years. In one recent year, for instance, Seanad Bills even outnumbered Dáil Bills. Some Ministers welcome the opportunity to air a Bill for the first time in the less adversarial atmosphere of the Seanad, and then to take it to the Dáil after it has been tempered with some well thought-out amendments. My own clear preference is that we get first bite at a Bill – mainly because I've found that as a Bill goes through its various stages, attitudes to its content tend to harden a bit along the way. By getting our spake in first, we do so when the Bill is at its most malleable. As you may know, we are currently in the middle of one of our periodic attempts to reform the Seanad, and one of the suggestions made is that almost all Bills would start their life in the Seanad rather than in the Dáil. In making my own suggestions in the reform process, I went one step further. My proposal was an attempt to address two concerns. One was that in recent years the social partnership process has tended to sideline parliament altogether, with the result that very many Bills arrive in the Oireachtas as already done deals – whose balance cannot be upset by any amendment. The other, and much more dangerous trend, is the growth of lobbyists – whose wide-ranging but unquantified influence on legislation happens almost entirely behind closed doors. I proposed that we could get around both problems by turning the Seanad into a national forum for the pre-examination of legislative proposals. This forum would be open to anyone – whether they were a social partner, a lobbyist, or a simple citizen – as a platform to put forward their views. However, the corresponding restriction would be that all other kinds of lobbying would be forbidden by law. In other words, lobby all you like, negotiate all you like, but do it in the full light of day. I think this would produce a much more open and therefore healthier parliamentary system. And this brings me to the final point I would like to make, which is this: the essence of parliamentary democracy is its openness. Laws must not only be made, they must be seen to be made. I have always argued that our politics would be healthier if more people took a closer interest in the doings of parliament – if they looked over the parliamentarians' shoulders as we worked, so to speak. In recent years, with the arrival of the internet, it has become very much easier for everyone to do this. Every morning, you can switch on your computer and read in full gory detail our proceedings of the day before – and it's only when you do it in this way, rather than by reading the necessarily abbreviated accounts in the newspapers, that you get the true measure of what we do. Within the last month, this openness of our parliament to the public has taken a further step forward. Now, all proceedings in both Dáil and Seanad are webcast, so you can actually see and hear things as they happen. You can access these webcasts very simply: one way is through my own Oireachtas website, www.feargalquinn.ie, where at the top of the home page you'll find two buttons that will connect you directly to the webcasts in each House. Let me finish by urging you to give this a try. I believe very strongly that the more people know about what we do, the more they will realise the worth of a responsive parliament to the health of our democratic system. No parliament should operate by stealth, and nowadays there is absolutely no need for it to do so. |
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