Seanad referendum is first of its kind

THIS referendum is a first of its kind in Ireland in constitutional terms.

This is the first proposed direct amendment of the division of state institutional government powers put to popular vote. This referendum affects the way the State conducts government among its own institutions and balances. Unlike all recent referenda, the proposal does not increase or decrease the State’s powers over citizens, limit citizens’ fundamental rights, or transfer the State’s powers to international organisations or the EU.

All previous referenda have changed the balance of powers between the State and international bodies and states, or the balance of rights and obligations between the State and citizens. There is a risk that people may align their position on this referendum (for or against) with their position on prior referenda, erroneously believing that the constitutional nature of this referendum is the same as those on which they have previously formed views.

There has been a prior Oireachtas legislative amendment of the constitutional position of the Seanad and the relationships of the bodies in the Oireachtas, in 1941. The Second Amendment of the Constitution Act, 1941, made many adjustments. None as significant as the proposed abolition, and none put to the people because it was adopted under Article 51 of the Transitory Provisions, since expired, which allowed for amendment for a limited time without referendum.

There has also been a referendum on voting arrangements to the Seanad, but this did not affect the Seanad’s position in the Oireachtas, just how candidates got to be senators.

The Seanad is a very limited constitutional check on executive government.

Ireland has the tripartite nature of many democratic governments: Executive government, legislature, courts. There are three significant reductions in the division between executive government and legislature already existing in Ireland. The abolition of the Seanad affects none of these.

First, the executive government (cabinet) is elected by the legislature and effectively controls it: The government controls the legislature, in practice, not the other way around (although the Dáil can pull the plug on the lifeline of a government), and sponsors and controls almost all legislation.

Second, the executive government enacts ministerial legislation which overrides Dáil and Seanad legislation by virtue of the EU constitutional amendments, provided this ministerial legislation is implementing EU law.

Third, much ministerial legislation, including but not limited to that implementing EU law, may be annulled by either House of the Oireachtas within 21 days, with prospective effect. However, it appears that neither House has ever used this check — or if so used, and it is difficult from outside the Oireachtas to know, so rarely as to be constitutionally meaningless. The Free State Seanad did delay some government proposals in 1936, as a result of which it was abolished entirely.

There is also the practical observation: The Seanad has voted for its own abolition at the Government’s urging. Is it likely to oppose the Government on any matter? Consequently, this referendum does not weaken the structures of popular control over the executive government, or legislative control over the executive government, such as they are, in any significant way. The Seanad has been in existence for more than 75 years. In a different political culture, perhaps things would have been different. But the institutions of government exist for this culture.

For many, the result of the proposed amendment is counter-intuitive; it does not affect the competence of the Oireachtas in any way. It simply removes the Seanad from the Oireachtas.

Support where due? There are of course criticisms which can be levelled at this proposal, for example that this is a distraction when circumstances require regime change and that real political reform must include electoral reform. On the other hand, pointing to what is not offered is an insufficient reason in itself for not taking what is offered.

For the proposal to come before the people, both the executive government and the Oireachtas itself (the bill has to go through the Dáil and the Seanad) will have agreed to propose reform. A no vote presents not just an argument, but a fact, against arguments that the people deserve further reform; such political reform as has been proposed by the Government and Oireachtas would have been refused by the people, who preferred to conserve the status quo.

*Diarmuid Rossa Phelan is a senior counsel and assistant professor of law at Trinity College Dublin