Axing the Upper House? Ireland votes on the Abolition of the Seanad

Voters are heading to the polls today in Ireland to vote on the abolition of the Seanad (or Senate), the upper house of the bicameral Oireachtas (parliament). It's accepted that the house has largely failed to demonstrate its relevance to Ireland today: there is little to report of changes brought about by the house, and it is not known for standing up to the government. With supporters of abolition claiming that getting rid of the Seanad would save €20 million and cut the number of politicians, it's a message that chimes with a lot of people.

The Seanad is a strange creature. It has limited powers and by and large can only delay Bills (see the Referendum Commission's website for more detail). It is elected by "vocational panels", with the aim of representing different strands of society (this was inspired by Catholic thought about society in the 1930s). However the vocational panels were never really properly set up, and 43 out of 60 of the members of the Seanad are in practice elected by local councillors. 6 Senators are elected by graduates of Trinity College and the National University of Ireland, and 11 are appointed by the Taoiseach (prime minister) to help ensure a government majority.

Claims of "jobs for the boys" and general ineffectiveness have plagued the house, with abolitionists pointing out that it didn't stand up to the government during the financial boom years. This seems a strange argument to me. The strong parliamentary whip system and the weakness of opposition on economic policy from the political parties in both the Dáil and the Seanad is more to blame than the simple institution itself. In any case the idea of an upper house should not be to build into the constitution an institution measured solely by the dissent it generates (a belated show of resistance popping up this week) or to copy the democratic mandate of the lower house, but to bring in more expert voices on specialist areas to add their knowledge and experience to the legislative process. The pros and cons of setting up a upper house that can bring in expert and minority voices into the debate, and the alternative of relying on bringing experts before Oireachtas committees is the central question. That all attempts to reform the Seanad to make it more effective have been scuppered makes a constructive alternative Seanad seem fantasy.

But when it comes down to it, I'm more in favour of keeping the Seanad than abolishing it. Getting rid of the Senate doesn't dilute the dominance of the executive in the Irish political system, or tackle the issue of the over-powerful whips. It won't save much money in the grand scheme of things either. On the other hand I can see the valuable contribution that an upper house can bring. The House of Lords in the UK has many, many flaws - you can't get much more "jobs for the boys" that the Lords! - but its active members have actually done well in generating reports and in the job of legislative scrutiny. A mix of direct elections and selection from vocational panels may be a way of strengthening the Seanad's legitimacy and expertise while keeping it in balance with the Dáil.

Frankly, I'm just being idealistic about bicameralism and what I'd like to see happening. When people go to vote today, they'll be voting against the background of decades of failed reform and ineffectiveness, and it's a tough ask for people to back vague reform. It's sad that the opportunity to refer the Seanad to the Constitutional Convention and then have a referendum was missed.


[There's also a second referendum on today, which more usefully would create a Court of Appeal to help ease the workload of the Supreme Court].

UK Constitutional Reform: It's all the rage

Some of you will know from my earlier ramblings that I'm not exactly a fan of the UK Constitution, or at least some of the contradictory claims surrounding it. (At the same time, it has rightly been pointed out to me that I've ignored the Scottish question on the nature of the constitution and Parliamentary Sovereignty).

So as someone who's interested in constitutional questions (perhaps one of the main reasons I'm fascinating by the EU in the first place), it's been very interesting to see the rumblings on constitutional change that have begun to emerge since the expenses scandal. Jon Worth has highlighted the need for considered consultation with the public, instead of MPs hurriedly jumping into action to show that they can be decisive and are, contrary to current public opinion, able to run the country. Constitutional change is a big issue and it should be brought about by consensus and after a comprehensive debate on the issues behind each reform. Personally, I'm leaning towards a Constitutional Convention-like body, where members would be elected on constitutional policies and would formulate a draft constitution to be put to a referendum, instead of leaving it to Parliament, the composition of which will be affected more by everyday politics and the recent record of the parties rather than their constitutional ideas.

Still, it's good to see some debate emerging, with David Cameron poised to make a speech on reform later today, probably based on his Guardian article, and Alan Johnson arguing for proportional representation in the Times. The historian Professor Starkey has even called for a separation of the legislature from the executive on the Week in Politics (while having a go at the Scots and Welsh, as per usual), though he's in favour of keeping the Monarchy and supports the Church of England's established role despite being an atheist (something about it being a "civilising force", though I must say it hasn't always appeared to have served that role).

While I'd like to see a radical overhaul of the UK constitution (codified and with popular sovereignty at its heart would be a good start), I'll just make some random points.

1. Why the focus on cutting the number of MPs? I know it's tempting to not only claim a few heads, but also throw out a few seats, and there are some arguments for reducing the numbers, but why the focus? The quality of the ministers is dependent on the quality of the MPs (at least under the present constitutional arrangement), and though in an ideal world the quality of MP would rise the fewer seats there were, I doubt that this would be the case. This would leave a smaller pool of talent from which to draw the government. And what about the cherished link between the MP and constituents? Apparently a key argument against proportional representation, but we should be aware that with a reduction in the number of MPs, there comes the inevitable increase in constituency size, and that means more constituency work for MPs. Will fewer MPs be able to serve their constituents as well or do their work as well under these conditions? Perhaps they could, but there's no real debate along these lines.

2. What should be done with the House of Lords? Here there's a vastly better case for the culling of seats, in my opinion - the House of Lords is bigger than the House of Commons, with less power and less democratic legitimacy. However, where is the debate over what the role of the House of Lords (or whatever it may be renamed as, if it is renamed) should be. Should it be elected, just as the Commons are elected? Why - what would be the point in having 2 equally democratically legitimate chambers of Parliament, and why should one be superior to the other? Should the House of Lords simply be abolished and the UK be made a unicameral system?

Or should the House of Lords be a more expert-centred House - perhaps elected by a mixture of universities, the professions, the trades...? Should it be made up of directly elected county/city representatives? Or should it be part of a proportional representation system: if a party list system forms part of a PR arrangement, should the list-elected candidates be put in an inferior House of Lords to weaken the power/influence the list system would give parties while leaving the option of some forms of PR open?

3. Should there be a monarchy? Well, why not question this? And why should there be an established Church while we're at it? Personally, I'm suspicious of the claim that the Queen brings in tourists. She may bring in a few by herself, but I suspect that the changing of the guards, the history, the old castles and palaces bring in the tourists, not the Queen. Presidents can have palaces (or a palace, with the others as national trusts open for tourism and to the public) and a changing of the guard. Some of the romanticism may be lost, but I doubt many people got to see the Queen herself, and Britain has a rich enough cultural and historical heritage to reconsider the merits of monarchy, in my opinion.

(On a side note, I loved a list of "practically endless" reasons why Germany should restore the monarchy I saw once. One was that it would be more "Umweltfreundlich" [environmentally friendly] due to the lack of ballot papers, and another was that it would be more "Kinderfreundlich" [child-friendly], for reasons that weren't quite explained...)

4. Does the First-Past-The-Post system really keep voters close to their MP? On a purely on a "connection with the voter" point, if you live in a safe seat area with political opinions that are unlikely to ever be expressed in a winning candidate, do you feel a close connection with the MP, or the system? If it causes some voters not to vote due to the inevitability of the safe seat, does that not damage identification with the system and the MP?

5. If David Cameron supports fixed term Parliaments AND thinks that constitutional reform should come at the end of a considered debate, why does he call for a snap election? Ok, cheeky question there.

6. English devolution: what form should it take? The two options being considered at the moment seem to be exclusively English MPs voting on English matters in the UK Parliament, or a devolved English Parliament. What about other options? If the goal is to bring government closer to the people, how close should it be, and how should it be achieved - though some see regional government as a "balkanisation" of England, it should be remembered that Wales and Scotland have about 5 million people each, while England has around 48 million - the question of how close the regional government should be to people needs to be a bit more in-depth than some of the slogans that are being thrown about.

7. What should be the constitutional position of the devolved governments? Should they be given greater powers in the interests of bringing government closer to the people? What are the powers best exercised at UK level, and what's better exercised at the regional level? This is a vitally important question since is could concern the structure of the health service and questions of accessibility. Should devolved governments be more independent of the Westminster parliament, with power going upwards towards it (akin to federalism), or should the devolution model (Westminster leases out power to [possibly temporary] regional assemblies/parliaments)?

That's probably enough questions for now. It's clear what way I lean on each point, if not what my exact opinion is, but hopefully it's raised some interesting points to think about... Maybe.

UK: What's in a Constitution?

In the UK there is a certain pride in their legal traditions, but there seems to be a confusion about what it all means - the concepts of referenda and parliamentary sovereignty are increasingly uttered in the same breath, seemingly without the speakers' awareness of how much these concepts are incompatible. The UK is famous for its unwritten constitution. Of course it has a constitution, but it's not codified - and a lot of people don't seem to know what it is, exactly. And the bigger question is: is the old constitution, favoured for its flexibility, up to the task of serving today's Britain?

There are many factors to be considered in UK constitutional law, but the most famous one is the doctrine of Parliamentary Sovereignty (PS). PS basically means that parliament is all-powerful, just like god.* According to constitutional theory, if the Westminster Parliament repealed the India Independence Act 1949 tomorrow, then India would revert back to British control (who says constitutional law has to make sense? Or even be practical?).

The UK constitution is just made up of acts of parliament (so it can be changed by a simple majority vote in parliament). Parliament can do whatever it wants (except anything that restricts its ability to do whatever it wants in the future). PS also means that parliamentary Acts are superior to judge-made Common Law, which is quite sensible in a democracy. The problem is that PS rests on its recognition by... judges. Because the doctrine of PS is in itself a judge-made concept.

Confused? Well, it dates back to the Civil War and the Glorious Revolution,** the end result of which is that the King/Queen had the powers of an absolute monarch, provided that the Parliament was the only body that could exercise them. What parliament is, is the King, just divided up among several hundred people. It just happens to be the case that the lower House, the elected one, is now the most powerful part of the Parliament.

So the UK has a constitution which is at odds with the more modern idea of popular sovereignty (the idea that the people are sovereign, and delegate their power upwards), because it is based on the sovereignty of the monarch, which was essentially (though not completely) stolen by parliament. Referenda go, therefore, against constitutional theory in the UK.

The UK has only ever had one referendum: over EEC entry (referendum introduced by Labour).


Now the constitution of the UK is largely a political one: it depends on the political culture for its continued existence since it is built on custom and tradition, and because any parliament could overturn the entire constitution at a stroke with a simple majority (which, under First Past the Post, might only have the support of a third of the electorate). The political culture of the UK has changed a lot over the last century, and it is doubtful that the current constitution is suitable for the modern UK. The issue of Europe in British politics shows the gap in the current political culture from constitutional theory: that the Conservatives, (the traditionalist, constitutional-upholding party) are demanding a referendum suggests that they have lost all respect for the constitution - and yet are not putting forward recommendations for constitutional reform.

There are a number of issues that make constitutional reform more pressing; chief among these is devolution and human rights. Devolution has raised the well known question over English self-rule,*** and human rights has raised questions over how much the parliament should be able to overturn such rights at a whim - or even without meaning to under the doctrine of implied repeal.****

While there have been a few suggestions on these issues (mainly just the Conservatives demanding that only English MPs should be allowed to vote on legislation affecting only England - in my opinion this will just make the system more messy), but no serious attempt at a systemic overhaul. Until this is done, and until popular sovereignty is made part of the UK constitution, Eurosceptic demands for a referendum will ironically attack the British idea of sovereignty more than the EU does (Factortame resolves the tension between PS and the ECJ's doctrine of supremacy of Community law).

Given these issues though, and the lack of political attempts at reform, it has been left to the judiciary to deal with things the best they can. And over the last 40 years there has been a weakening of the judicial deference to parliament, and even (weak) limits being imposed on PS. The famous Factortame case (no.1), which confirmed the supremacy of EU law in the UK (by cleverly saying that EU law was supreme because the UK Parliament's European Communities Act 1972 really said it was, subject to the parliament's sovereign ability to withdraw such rights. ...Yes, I know, but it has to be done in such a way in law) and the Thoburn case (which started a trend of deeming some statutes to be "more constitutional", and therefore not subject to implied repeal) are good examples of this.

In fact, in Jackson v AG, Lord Steyn in obiter***** practically served notice on PS - stating that if parliament threatens access to the courts (etc.), then the courts could just dismiss the power of parliament to do so. The supremacy of the judiciary is a general feature of democracies (supreme courts being able to rule on laws being unconstitutional, etc), and the UK could be moving in that direction, albeit very slowly, and being moved there by the judges themselves.

If nobody discusses the pressing need for constitutional reform in the UK - in fact, the basic need for a codified constitution - then the judges will just have to do the job themselves, just as they did in the past.

This post doesn't have much direction to it, I'd admit. Sorry for that. In a way, I just felt like showing what a mess I think the UK constitution really is, and vent annoyance at some UK eurosceptics' lack of basic knowledge of how their country works, and what its sense of sovereignty is (basically the sovereignty of the rulers based on their control of a territory rather than popular sovereignty). However, I think that the UK needs a constitution in the traditional, write-it-down-somewhere, sense. The current constitution is out of touch with its people (though if you really like it, perhaps you'd say it's the other way around?) - and there needs to be a big effort to confront these challenges.

And if you think all this is messed up, just take a look at land law in Ireland and the UK!





*Depending on the religion. In some cases perhaps even more powerful than god.

**Where the King was fired and Parliament bought a new one.

*** Britain (more correctly the UK) isn't a nation-state. It's a collection of nations in one (historically very centralised) state. A bit like the old Austro-Hungarian Empire.

**** Parliament can't bind successive parliaments, so if two Acts conflict, the newest one is the right one - it "impliedly repeals" the old one. For human rights this could be a bit of a problem.

*****Obiter means that the judge is just saying it - it has no legal effect. But if other judges start agreeing with it, it could find its way into the legal orthodoxy.... [I think this part of Lord Steyn's judgment is at paragraphs 90+ - of the top of my head I'd say it's at 100-110].

[Note: the links for the cases are just to their wikipedia articles, which is definitely not academic. If you actually want to read the cases they should be in the House of Lord's website, though I'd say that they're so famous (ok, famous for court judgments) that you should be able to just google them.]