Pearse Doherty (Donegal, Sinn Fein) | Oireachtas source

Tairgim: "Go léifear an Bille don Dara hUair anois."

I move: "That the Bill be now read a Second Time."

It is seven years since this legislation was first introduced in the Dáil on 16 April 2014. That is reflected in its Title, "Thirty-fourth Amendment of the Constitution (Inclusive Budget Reform) Bill 2014". Since the Bill was introduced, we have had five amendments to the Constitution, reflecting the scale of change that has occurred in this State over recent years. There is more to be done and more change to come. A constitutionally protected right to housing, which is a priority and commitment of my own party, and the great recasting of the Constitution in the event of reunification of our country are things to look forward to.

Returning to this Bill, the change that has occurred is reflected in its Title. In the event that this legislation passes Second Stage, I have been assured by the Bills Office it will be renamed the "Thirty-ninth Amendment of the Constitution (Inclusive Budget Reform) Bill". It is a short Bill with huge ramifications, impacting how the Dáil operates, how we discuss, debate and deal with budgets and how we discuss and debate legislation. The Bill would pave the way for a referendum to appeal or amend Article 17.2 of the Constitution. That is an article little discussed in this Chamber but one which stifles its ability in regard to legislation and budgeting, a function which should be, ultimately, its job and our job.

In order for an executive to govern effectively, fiscal control is essential. However, there is a difference between executive control and executive monopoly. It is a long-standing practice in Westminster-style systems of parliamentary governance that opposition members are prohibited from introducing Bills, amendments or resolutions that have financial implications for the exchequer. This prohibition or ban paves the way for the executive monopoly I refer to. The ban exists in this Dáil and frustrates Opposition Members during every Finance Bill and nearly every Bill. It is a hangover from the British Empire and colonialism and is enshrined in Article 17.2. Its history is much older than that. Article 37 of the Constitution of the Free State provided that:

Money shall not be appropriated by vote, resolution or law, unless the purpose of the appropriation has in the same session been recommended by a message from the Representative of the Crown acting on the advice of the Executive Council.

That article in the Free State Constitution was regurgitated in Article 17.2 of Bunreacht na hÉireann in 1937, which provided that:

Dáil Éireann shall not pass any vote or resolution, and no law shall be enacted, for the appropriation of revenue or other public moneys unless the purpose of the appropriation shall have been recommended to Dáil Éireann by a message from the Government signed by the Taoiseach.

Article 17.2 acts as the basis for the introduction of standing orders in this Dáil that further restrict the ability of opposition Teachtaí Dála to introduce Private Members’ Bills or table amendments with financial implications for the State. These standing orders ensure the functions of the Dáil to deliberate and revise are significantly curtailed, reducing the scope of Deputies to contribute in meaningful debate, discussion and parliamentary activity and allowing the Government the exclusive right to impose expenditure and taxation without adequate balance or checks in place. It is outdated and does not serve the citizens we are elected to represent. These restrictions which muzzle the Dáil are mirrored in other jurisdictions once colonised by the British Empire, including Canada and Australia.

Article 17.2 was considered by the Convention on the Constitution which met between 2012 and 2014. As part of its work on Dáil reform, convention members voted in favour of amending Article 17.2, with the seventh progress report of the all-party Oireachtas Committee on the Constitution citing the prohibition as unjustifiable.

The Government may disagree with me on a number of grounds. This disagreement can never be considered an objective one, because it is in the Government's interest to neuter the Opposition as much as possible. The Government may argue that to repeal or amend Article 17.2 would lead to time-wasting or an unruly Dáil. First, if the current prohibitions were repealed or amended to allow for Bills or amendments with financial implications from the Opposition, such Bills and amendments would be subject to exactly the same scrutiny as Government Bills and amendments. Second, to disallow such Bills and amendments from the Opposition on the grounds that it is unacceptable is to load the system against the Opposition twice. A majority is the basis of every functioning Government's ability to govern. That majority is an adequate safeguard to counter any proposed legislation from the Opposition that the Government disagrees with.

As I have said, Article 17.2 in its current form is an importation and unfortunate inheritance of the British system that serves us poorly, based on the practice of attaining the assent of the Crown before the collection of public money is allowed. Although the prohibition enshrined in Article 17.2 persists in this State and in Britain in a different guise, the rules have been relaxed with looser interpretation in Australia and Canada. We should not aim just to be like Australia or Canada; we should aim for better.

During the Convention on the Constitution, Professor Meg Russell of University College London expressed surprised upon learning that this State continues the practice of banning the introduction of Bills and tabling of amendments by Members of the Opposition.

As I said before, amending Article 17.2 of Bunreacht na hÉireann was a recommendation of the constitutional convention. That recommendation was kicked to the Select Committee on Arrangements for Budgetary Scrutiny, where it was summarily dismissed after meeting only three times and has been held in cold storage ever since. This recommendation from the constitutional convention was ignored and not given the attention it deserved and was not acted upon.

This Bill paves the way for a referendum to repeal Article 17.2 of the Constitution. It is an article which does not serve the Dáil, its Member or citizens well. The Government could oppose this Bill because it is in its interest, as a centre of power, to do so. However, I ask the Government and other Members to take a different view. They know the recommendation of the constitutional convention to amend Article 17.2 has not been taken seriously, was not subject to serious deliberation since it was recommended and was thrown in the bin. That was the wrong approach. This Bill, were it to pass Second Stage, would move to Committee Stage, where the recommendation of the convention can be given the attention it deserves. Constitutional experts could be called in from here and abroad to look at how we modernise the Bill and ask the following question: is the prohibition of Bills and amendments with financial implications from Opposition Members good for the representation of citizens or is it not?

Does it empower the Dáil or does it muzzle it? The answers to these questions are clear and that is why I ask the Dáil tonight to support this Bill, so that it can progress to Committee Stage where Article 17.2 and the recommendations of the Constitutional Convention can be given the attention they deserve. It will then be up to the Members of this House now or in future to decide our own Standing Orders, our rules and our practices on the passing of legislation and where the legislation or amendments would incur a charge on the State or the people, and what should be appropriate or not. We should not be muzzled by Article 17.2 of the Constitution. As I have said on numerous occasions tonight, it is a relic of colonial times, a time when the Free State Constitution was being drafted and required the consent of the crown before any public moneys were spent by the new envisaged parliament.

We saw only last week how Article 17.2 has real effects on Members of this House. After a huge amount of attention being paid to the policy of the Government on investment funds or vulture funds in housing, which were snapping up residential property and pushing up house prices, the Government came forward with a resolution that increased stamp duty to 10% on a number of those homes, and exempted others. Not one member of the Opposition was able to increase the rate or decrease it. Not one of us was able to change the date on which the measure would come into effect, even by one day, as was attempted by a member of the Opposition. Every single amendment from numerous parties, including my own, that sought to vary the date or the rate was ruled out of order because of Article 17.2 of the Constitution.

People are elected to this Parliament to discuss, amend, legislate, debate and share our views. If we have this constitutional provision, which is a throwback to the times of colonialism, it frustrates us and shackles us in doing that. It makes a mockery out of really dealing with legislation and allowing us to table and discuss different ideas at an early stage of the legislative process. It is taking it to an extreme.

I understand that it would be the instinct of the Government not to allow this amendment to pass - to close it down because it means the control rests with the Executive and it has the monopoly - but I appeal to the Government to accept it. The matter was dealt with at the Constitutional Convention and in a vote a majority wanted this provision amended. Let us look at it in greater detail. Let us amend the legislation I have proposed if needed. I am open to that but let us have a proper grown-up debate on Article 17.2 and whether it is fit for purpose in a modern democracy and how we deal with the legislative process.

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