Fergus O'Dowd (Louth, Fine Gael) | Oireachtas source

-----to analyse a Bill section by section but we want to be helpful to the Fianna Fáil Members who are here. It is important today to identify and highlight some of the incomplete and unworkable provisions in the Bill.

The Constitution stipulates that Members of the Seanad are elected by secret postal ballot. Arising from this provision, ballot papers are issued to voters by registered post. This Seanad Reform Bill does not address the implementation of the constitutional provision on the secret postal ballot. The cost of running Seanad elections on a universal franchise, without a referendum to amend the secret postal ballot provision in the Constitution, would be quite significant. In the 2011 Seanad election, it cost €5.25 to send each ballot paper. That indicates what it might cost to send a ballot paper by registered post to over 3 million voters in Division 1 of the new Seanad register proposed in this Bill, that is, to those persons entitled to vote in Dáil elections, and this does not include those voters proposed by Fianna Fáil to be in Division 2 and Division 3 of a new Seanad register, that is, persons living in Northern Ireland who qualify for Irish citizenship,4 and persons who hold a current and valid Irish passport and who reside outside the State. This estimate does not include the cost of staff to administer the election and count the votes. These are important considerations in introducing, without constitutional amendment, a universal franchise for the election of 43 Senators.

The Bill, in section 18(c), sets down requirements for registration in Division 2 of a new Seanad electoral register. That is the part of the register for persons living in Northern Ireland who qualify for Irish citizenship. Applications for that register are to be accompanied by a document endorsed by the Northern Ireland Electoral Commission. Such a document is to confirm that the applicant is ordinarily resident in Northern Ireland and is registered to vote in Northern Ireland elections. It is not clear that this provision has been given any detailed consideration as regards, for example, the legality of imposing a duty on a State body in another jurisdiction or as regards the legal requirements for the Northern Ireland electoral register.

The Bill provides, in Section 13(3) that, when registering, each eligible person would indicate the constituency in respect of which he or she has opted to cast their vote. I am intrigued to know how this would work in practice. What will happen if all opt to vote in the cultural and educational constituency? On the other hand, what will happen if no one opts to vote in the administrative constituency?

It is not at all clear how the 'gender balance' provisions in section 44 would work in practice. This section requires that a minimum number of men and women candidates be elected in the university constituency; it requires that a minimum number of candidates be elected to represent each panel in the vocational constituency. Provision is not made for the situation where the required number of either gender is not elected by voters. How can the provision be implemented? How will it work?

The Bill, in section 9, requires the Taoiseach's nominees to be representative of the following groups in this jurisdiction and in Northern Ireland, the elderly, the young, the new Irish community, the Irish diaspora, people with disabilities, sporting organisations, the arts, the Traveller community. Section 44 requires the Taoiseach to "give consideration to ensuring" that the 11 nominated Senators would have sufficient gender balance. If it was intended that this nomination process be regulated by law one would have expected that such provision would have been made originally in drafting the Constitution. The provision in the Constitution, however, gives discretion to the Taoiseach of the day in making these nominations and has been used in this way since the foundation of the State.

Part 6, Nomination of Candidates, provides that a person may be nominated to be a candidate by one or more nominating bodies, by a local authority or by the popular nomination of 500 persons on the Seanad electoral register. There is no further detail. No provision is made for how these nomination processes would be organised or how nominations would be verified or validated. Will it be necessary for a candidate to be nominated by any 500 persons on the Seanad electoral register? Or will a candidate be required to be nominated by voters registered in the particular constituency or panel for which they are standing?

Section 24, headed Qualifications and Experience of Candidates, effectively repeats Article 18.2 of the Constitution in providing that no person who is for the time being disqualified from, or incapable of being elected as a member of Dáil Éireann, shall be a candidate at a Seanad general election. It does not say anything about what experience is required. There are no detailed provisions in the Bill for the counting of votes. There are no detailed provisions for managing a proportional representation-single transferable vote, PR-STV, count in embassies and consulates abroad as proposed in the Bill. Implementation of such a provision would need careful consideration, having regard to practical operational issues around the running of elections and the resource implications for embassies and consulates around the world.

The Bill repeats a number of the constitutional provisions on Seanad membership and elections. It is hardly necessary or appropriate to do this in primary legislation.

When he published this Bill in January, the Fianna Fáil leader Deputy Micheál Martin said the aim of the Bill is to "strengthen the powers of the Upper House to act as a check on Government and scrutinise national and EU legislation". I do not see a single provision in this Bill to address those aims. Seanad reform has been the subject of considerable debate. Following the October 2013 referendum, the challenge facing the various parties has been to produce proposals for practical, implementable reform of the Second House.

Last month, the Government asked the Leader of the Seanad to submit, on its behalf, a comprehensive set of proposals for operational reform, which can be implemented in the life of the current Seanad. These proposals focus on the Seanad's legislative and vocational roles, while acknowledging its role in EU scrutiny. The proposals also suggest ways in which the Seanad can engage with Government, within the parameters of the Constitution, as well as work jointly with the Dáil through the Oireachtas Committee system.

It is proposed that the Seanad should be involved in the legislative process at an early stage and should play a key role in improving legislative proposals before enactment. The Government will initiate more Bills in the Seanad, especially ones that deal with interests and topics on which the Seanad vocational panels are based, that is, education, language and culture, agriculture, labour, industry and commerce, and public administration. It is also proposed that the Seanad will have a role in the new pre-legislation stage for non-emergency Bills.

Oireachtas committees will provide copies of their recommendations to both the relevant Minister and the Seanad. The Seanad will be able to then ask the committee chairman to appear before it to discuss the committee's findings and can subsequently submit its own recommendations to the Minister. This process would include an appropriate deadline so as not to delay unnecessarily the introduction of the Bill. Committee Stage of non-emergency Bills would be restructured, to allow better consideration of Seanad amendments. Senators will initially be given time to set out the rationale for the amendments proposed, and to clarify any issues. Following an appropriate period, the Minister will give his or her response to the proposed amendments. This will in practice mean dividing Committee Stage into two distinct parts, with an appropriate short break between them. The Government is also proposing that more Seanad time be given for Private Members' Bills.

In relation to the Seanad's vocational role, recent innovations, such as the Public Consultation Committee, have enabled the Seanad to develop its work in this area. The Government supports the continued enhancement and development of the Seanad's vocational role within the existing constitutional framework. The Seanad should also review and debate reports of public bodies covering matters related to the vocational areas on which the Seanad electoral panels are based.

It is also proposed that the Second House play a more enhanced role in North-South relations, review the work of North-South ministerial councils and the British-Irish Council, and Ministers should make statements to the Seanad after attending such meetings. It is also proposed that the Seanad should review the work of the North-South implementation bodies and continue to engage with minority and other special interest groups. It should also continue to invite high-profile individuals, such as those involved in the Young Senators Initiative to address the House, to enhance its parliamentary and democratic role.

In terms of the Seanad's engagement with the Government, it must be recognised that the Government is responsible to the Dáil, under Article 28 of the Constitution. However, it is appropriate that the Seanad should engage with the Government of the day on policy matters. It is proposed, therefore, that the Government will outline its annual priorities to the Seanad in the same week that it outlines them to the Dáil.

It is also proposed that the Seanad consider the reports of Oireachtas committees and, if it wishes, make recommendations to the relevant Minister. Much of the work done by committees is not subsequently debated in either House. The Houses of the Oireachtas jointly scrutinise EU legislative proposals, on which much of the detailed work is done through joint committees which are best placed to undertake this task. However, the Seanad could provide a high profile forum for public debate on the work of the joint committees and EU matters generally.

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