We welcome the opportunity to engage in this consultation and urge that the Department would provide further opportunities for engagement at later stages. At the outset we must signify our total opposition to this draft Bill as it falls far short of the blueprint for real Seanad reform that has been agreed on a cross-party agreement.
The first portion of our submission deals with the broader questions and the second part deals with the very significant problems with the Bill as drafted.
We are of the view that:
The Seanad Franchise:
The question of the implementation of the seventh amendment of the Constitution cannot sit in isolation from the wider question of Seanad reform. The Supreme Court ruling confirms that action must be taken. However, a minimalist approach to legislating on this issue would not be true to the spirit of either the 1979 or 2013 referenda – in which the public clearly called for reform.
The public voted in the 2013 referendum for a reformed Seanad and the 2015 Report of the Working Group on Seanad Reform (the Manning Report) clearly recommended that “a majority of the Panel seats be elected by popular vote on the principle of one person one vote.”
On the first day of the 25th Seanad, a number of Senators introduced the Seanad Reform Bill 2016 but were requested by the Government not to progress the Bill and instead work with the Seanad Reform Implementation Group in order to bring legislative proposals with cross-party support to implement the Manning Report.
The cross-party Seanad Reform Implementation Group (of which Senator Higgins was a member) produced its report in 2018 and as part of this drafted agreed cross-party legislation which would implement the Manning Report and give effect to the seventh amendment to the Constitution.
In the 26th Seanad Senator Higgins (alongside the chair of the Seanad Reform Implementation Group Senator Michael McDowell) introduced the agreed cross-party legislation as the Seanad Bill 2020.
The Seanad Bill 2020 represents a practical legislative blueprint which would ensure that every citizen has the right to vote in Seanad elections – while also legislating for the 1979 referendum. For too long, the majority of the public have had no say in electing the Seanad and this urgently needs to change.
When the 2013 referendum campaign was underway, those in favour of retaining the Seanad urged that it should be opened up, not closed and the way to do that was through extending the franchise to every citizen.
When Senator Higgins spoke at the commemorative sitting for Seanad 100, she highlighted that too many people do not have the opportunity to cast a vote in the election of this House, despite referenda where the citizens of Ireland made it clear they value the Seanad, and they want a say in it. Opening the franchise to all and passing the Seanad Bill 2020 is the essential test as we turn from the past towards the future of the Seanad.
Comments on Government's Bill:
Head 3
There are a number of issues with Head 3 as drafted representing both a dilution of current entitlements to be registered as an elector and a failure to expand the franchise sufficiently as envisaged by the Seanad Reform Implementation Group.
Currently the Head provides that a person must be awarded an ordinary bachelor’s degree (level 7) or higher to register. The agreed cross-party legislation however would provide that a person would only need a requisite qualification from a university of higher education institution in order to be registered. Requiring an ordinary bachelor’s degree or higher would mean that the large number of people who have achieved level 5 or 5 qualifications at higher education institutions would be ineligible to vote. This head should be amended to mirror the provisions contained in the Seanad Bill 2020.
We are also concerned about the inclusion of Head 3(5) as this represents a dilution of the existing entitlements to vote under the 1937 Act. Currently if an institution ceases to exist or the NUI or University of Dublin cease to be the degree-awarding body for that institution, graduates of such institutions remain entitled to be registered as electors. For example, graduates of the Dublin Institute of Technology from the years 1975 – 1998 remain eligible to vote in the University of Dublin Constituency. The existing provisions should be retained especially in the context of a broadening of the franchise in order to prevent a large number of graduates being excluded from the Seanad franchise again.
Head 5
We are concerned that Head 5 as drafted repeats some of the same errors of the 1937 Act, namely the failure to provide for a supplemental register prior to a Seanad General Election. Currently many recent graduates are prevented from voting in elections held shortly after they become eligible for registration. For example, those who graduated in the Autumn of 2019 from either NUI or the University of Dublin would have been ineligible to vote in the 2020 Seanad election as the updated register would not be published until June, despite such persons having become eligible to vote in the previous Autumn. The idea that in any other electoral event large numbers of recently eligible persons would be excluded from voting would quite rightly be seen as outrageous. Provision must be made in the new legislation to fix this issue.
We also have a query regarding Head 5(8) whereby current electors must indicate their preference to be included in the register of electors for the new constituency. This could lead to a situation whereby a large number of electors may not be included in this new constituency, and we would ask what the rationale is for including such a provision rather than simply amalgamating the existing NUI and University of Dublin registers as a first step of developing the new and expanded single register.
Head 8
Regarding the membership of the Advisory Committee, we would highlight that universities are made up of much more than there management and that in appointing persons representative of one or more institutions of higher education there should be provision which would specify that at least one representative should be either nominated by a trade union or another non-management body such as a university senate, a students’ union or university fellows.
We also urge more broadly that there must be a role for the Electoral Commission in the conducting of Seanad general elections (including elections for vocational panels) and that there may be a role for a member of the Electoral Commission to serve as part of the Advisory Committee. The research functions granted in Head 11 are welcome but must be expanded.
Head 11
We welcome a mandate for the Electoral Commission to conduct research around registration but urge that this must be expanded to include research on participation both for voters and for candidates. We also strongly urge that the mandate of the Electoral Commission must be expanded to look to wider Seanad general elections as we suggesting during the legislative process for the Electoral Reform Act 2022.
Head 12
We have significant concerns about the abolition of by-elections for Seanad university seats and the institution of a replacement list system. This would mean that the system for filling casual vacancies for six seats is different to the system employed for the other 214 members of the Oireachtas. By-elections are an important part of the democratic process, and we have specific concerns regarding the provisions of this Head.
Broadly speaking there are significant questions as to the constitutional validity of this provision. Article 18.1 of the Constitution provides that forty-nine members of the Seanad “shall be elected members.” Article 18.2 of the Constitution (the subject of Heneghan v Minister for Housing, Planning and Local Government) specifies that members of university or higher education institutions must be elected regardless of franchise. The Constitution does not provide for the use of replacement lists and we believe, quite clearly, mandates that members of the Seanad must be elected.
Head 12(3) seems to diverge from the replacement list system used for the European Parliament whereby a candidate can nominate up to six potential replacements. Restricting this to four appears to be a strange decision and more information is needed on the rationale for this proposal.
We are completely opposed to Head 12(4) and believe that the use of another Senator’s replacement list to fill a causal vacancy is anti-democratic and in effect denies the mandate voters have given to the Senator’s they elect. There are significant questions regarding the legitimacy of such a provision as a person appointed to fill a casual vacancy from another Senator’s list has no democratic mandate to fill the seat of a Senator who has not placed them on their list.
We strongly favour the retention of by-elections but believe that in a context where a replacement list system is used that the circumstances described in Head 12(4) should result in an immediate by-election.
Head 15
As currently drafted Head 15 represents a dilution of the ability to participate in Seanad elections.
We are opposed to the provisions of Head 15(5) as raising the nomination threshold from 2 nominators and 8 assenters to 60 assenters will mean that less people will be able to contest elections for the Seanad. Such a backsliding will diminish the electoral process and there is no evidence that the current requirements under the 1937 Act have had negative impacts on the electoral process.
The deposit amount specified in Head 15(7) is also too high. To contest a Dáil general election the deposit required is €500 whereas the proposed legislation seems to mirror European Parliament requirements. There is no rationale as to why it should cost more to run for election to one House of the Oireachtas than the other.
Fourth Schedule
Furthermore, regarding the replacement list, Article 2(2) of the Fourth Schedule should be amended to remove the requirement for a replacement candidate to require the approval of both Houses of the Oireachtas prior to taking their Seanad seat. Again, by-elections should be retained, and this provision specifically may lead voters to question the legitimacy of persons appointed to fill a causal vacancy. For example, if a majority in both Houses opposes all the replacements on a candidates list (which would be possible under this Bill) there would be a case of a person being subsequently appointed to Seanad Éireann without a mandate. There is also a question as to why the approval of Dáil Éireann should be required when the question concerns solely the membership of the Seanad.
Conclusion:
To conclude, we believe that the approach the Government is taking to this issue is not sufficient to meet the real demands for a reformed Seanad. The Bill lacks any reforms of the franchise for the vocational panel system which will leave a large portion of Irish society with no say in how the Seanad is elected. The Bill as drafted contains numerous provisions which are hugely problematic and of uncertain legality.
It is our belief that this Bill should not proceed and instead the Seanad Bill 2020 should be progressed.
Civil Engagement Group Senators Alice-Mary Higgins, Lynn Ruane, Frances Black and Eileen Flynn have today slammed the decision of the Government to guillotine Committee Stage consideration of its deeply flawed Planning and Development Bill 2023, which is riddled with significant and substantive defects.
Senator Alice-Mary Higgins, was elected to the Executive of the European Parliamentary Forum (EPF) for Sexual and Reproductive Rights in 2017. She joined her colleagues in writing to the European Commission to express concerns about the inappropriate chaneling of funds in the course of elections and to call for further investigation.