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COMMITTEE ON PROCEDURE AND PRIVILEGES (Sub-Committee on Seanad Reform) debate -
Wednesday, 17 Sep 2003

Vol. 1 No. 2

Presentation by Mr. Noel Whelan.

I welcome Mr. Whelan to the sub-committee and express members' gratitude for his detailed submission and attendance this afternoon. We are very pleased to see him. The all-party sub-committee is composed of Senators Dardis, Brian Hayes, Brendan Ryan and O'Toole. While members of the sub-committee have full privilege, qualified privilege is extended to witnesses. Mr. Whelan will know all about this from his profession. As we have read his submission, perhaps he will provide a synopsis or make whatever points he wishes after which there will be questions and, I hope, answers. During this session, questions will come mainly from Senators Brian Hayes and O'Toole, but any member may chip in. That is the way it is working out.

Mr. Whelan

I thank the Chairman and Senators for the invitation to follow up on my submission. In essence, I recommend a broad mandate, vocationally based Seanad. Quite apart from the issues of the Seanad's powers or its role, any increase in its functions will have no effect within the Oireachtas or with the electorate unless the basis on which it is elected is broadened.

Before getting into the details, I wish to discuss the matter on a philosophical level. My submission is informed by the philosophical view that the Houses of the Oireachtas must be dramatically stronger within our system of government. Of all parliaments in the world, ours is probably the one in which the Cabinet has most control because of the hold political parties and the Government have on the agendas of both Houses. The work of the sub-committee provides a unique opportunity dramatically to shift the balance in favour of Parliament away from Government.

The second thing that motivates me philosophically is my passionate belief in the greatest possible democratisation of the workings of our politics. I have always said in litigation and elsewhere that the widest possible collection of people should decide whom they want to elect as long as it is effective in terms of what can be achieved in the system. My third philosophical motivation is that Parliament is losing the battle not only with the Executive but with a wide range of outside groups as well.

There are two groups, in particular, one of which is composed of the social partners. Social partnership has brought real and dramatic gains to our political system and economy, but we need to internalise the process within Parliament rather than allow it to set itself up to compete with the Oireachtas for influence. In some ways the more transparent way to operate social partnership would be through the structures of the Seanad.

The second group forms what I call "pressureship" and is composed of an increasing plethora of pressure groups, interest groups and organisations which, with the media, are beginning to dominate and play with the agenda rather than Parliament. While there is nothing wrong with the input of a pluralistic collection of views in the political process, there is an opportunity to bring such views within Parliament rather than to continue to have them competing with it. Now that the sub-committee seems to be adopting a constitutional amendment approach, this could be achieved by broadening the mandate for the existing panels or a wider variety of them. Within the vocational panel system as currently designed, the individual voter could be given a vote in the Seanad as well as the right to choose which of the constituencies and vocational panels they wish to vote for. This would enhance dramatically the power and standing of the Seanad.

To set this in an historical context, some constitutional scholars have said - I agree - that de Valera created camouflage when he established the Seanad. There is no reference in the Constitution to the manner in which Members would be selected, but there is provision to widen its electorate should the House so wish it. He probably made these provisions to keep the Labour Party in support of the referendum for the adoption of the Constitution. The provision tilts at the original Labour Party proposal in respect of a vocationally based panel.

There is an illusion that de Valera's vocational basis for the House was shaped very much by the vocational dimension of Catholic theology. People often forget that the labour movement, which in some ways was being left out of politics due to the competition between Fianna Fáil and Fine Gael after the Civil War, also proposed a vocational basis for the Seanad. The Catholic system did not have a labour panel as its theology was based on the concept that there was no competition between capital and labour and that the Marxist view that there was competition between employer and employee did not stand up. By implying that the vocational panels would be wider while refusing to define the Seanad's electorate, de Valera was trying to get over the first hurdle which was the adoption of the constitutional referendum.

It should be remembered that the first Seanad was elected not by county councillors, but by an electoral college of Dáil members. The nominations were made by councillors who did not acquire the Seanad vote until the 1940s. What the sub-committee does here can resonate with what was originally planned in the Constitution and modernise it to reflect the way in which our society has broadened vocationally and otherwise.

If a referendum is passed next June, a letter can be circulated to every Dáil elector the following autumn.

A referendum in respect of what?

Mr. Whelan

To restructure the panels to make them wider and create panels of different shapes. If that is done, a letter can be sent to every Dáil elector the following autumn outlining the six Seanad constituencies and panels and the criteria for qualifying for each one. The voter could then establish how many he or she qualified for and select one. For example, all teachers, those working in education and on educational bodies and all students over the age of 18 years - undergraduates - would be entitled to vote on the education panel. All persons working in or having an interest in agriculture or the marine could vote on the Agricultural Panel. All persons with a shareholding or a directorship would vote on the industry and commerce panel while all persons who are employees or involved in industrial relations would be entitled to vote also. All public representatives entitled to vote on the Administrative Panel would retain that privilege while the electorate would be widened to include social and community groups.

The individual would engage in a kind of parlour game to establish the number of panels for which he or she qualified. It has often been a parlour game for Seanad candidates to discover how many panels they qualify to run for. If the structures were broad enough, every voter would qualify for an average of three or four panels but they would have to decide for which they wished to register as an elector. This could be tested by sampling 10,000 people in an MRBI poll to find out for how many panels they qualify on average. We could limit the number they may elect for to two or three.

It would be very easy to run this system administratively. As with the current system for graduates, a letter could be posted to voters containing three different ballot papers for the panels they have selected. The person would then go to a Garda station, a peace commissioner or post office, certify his or her identity, seal the three envelopes separately and in secret and post them back. It would be very practical to do this. One can imagine the momentum and enthusiasm generated if every voter could, in addition to electing within their geographic constituency, figure out and explore the process for themselves. They could also be mobilised by certain groups to vote on a vocational panel on a national basis.

That is a very interesting proposition. I call Senator Brian Hayes.

I thank Mr. Whelan for his stimulating presentation and the document he sent to the sub-committee, which is interesting, radical and in line with the ideas which were part and parcel of the first Seanad. As regards the notion of the established vocational panels, do people still regard themselves as, say, teachers throughout their lives? Is it not the case that people change career throughout their working lives? Farmers nowadays tend to be part-timers and the majority of them work in industry. People have multiple vocations.

Mr. Whelan is suggesting one could effectively have two or three votes. Does that not question the notion of "one man, one vote"? I know the current system is deviant in that respect: for example, as a graduate and an elected councillor, I am entitled to two votes. Would it not stretch the imagination too far to allow people to have two or three votes? While I support Mr. Whelan's idea of extending the franchise as a way of popularising the Seanad, would it not be too cumbersome to have a system in which two or three people were appointed?

I am not sure if Mr. Whelan perceives as a difficulty the fact that the party political system still has a stranglehold on the Seanad. Would it not be the case that one would still have the candidates of the Fine Gael, Fianna Fáil and Labour parties on the proposed new vocational panels and would Mr. Whelan consider this good or bad?

Mr. Whelan

We currently have geographically based representative constituencies for the Lower Houses of most parliaments. In some ways, this is an accident of history because it is an offshoot of ratepayers having votes. I live in Dublin West, work in Dublin Central, socialise in Dublin South-East and was born and spend most summers in Wexford. Even our geographic confinement is not the same as it used to be.

That sounds like a recipe for becoming Taoiseach.

Mr. Whelan

An increasing number of voters, particularly in the cities, are not necessarily tied to their geographic area. Nevertheless, the best way to organise them for representation purposes is in terms of their geography. My proposal would still be based on each man or woman having one vote in each constituency. One would, for example, have only one vote in the educational panel, while one might still qualify for two or three other panels. To get rid of elitism or discrimination, the voter would decide which of the two or three panels——

One could only vote in one panel.

Mr. Whelan

No, one could vote in two or three panels but only once in each. If one is a graduate, employed as a teacher and involved in local community organisations, one would be eligible to vote in three or four panels. This would force our electors to view themselves in the different capacities in which they operate as citizens and to be represented in those different capacities.

On the point about political parties, I do not buy the snootiness of the view that political parties are a bad thing.

Nor do we.

Mr. Whelan

I could not do so as I spent much of my life's work involved in a political party. Let the electorate decide, as it did in many constituencies, whether it wants Independents or party candidates elected. The growing number of Independents being elected is due to the electorate's wishes. If one was to introduce the constituencies I propose, they would be broad.

The point of the question was that under the current Seanad system, it is almost impossible to get an Independent elected. We are not making a value judgment as to one or other model, but asking whether the proposals would facilitate this.

How would one get new voices into the Seanad?

Mr. Whelan

I suspect one would have an electorate of around 100,000 to 120,000 in each of the proposed constituencies. This allows the electorate to pick the voices it wishes. It is a broad electorate which political parties, trade unions, representative organisations or the power of an individual's appeal might be able to mobilise. Whether the electorate ends up electing party political politicians, trade union leaders or individuals standing on their own is purely a matter for the voters.

Anyone could be nominated to the panels.

Mr. Whelan

My instinct would be to allow anyone to be nominated to the proposed panels.

Anybody could put himself or herself forward.

Mr. Whelan

It would operate in the same way as Dáil elections, that is, anybody could put himself or herself forward as a candidate.

One has to be qualified. Is that correct?

Mr. Whelan

One could maintain the current criteria of having knowledge and experience of the panel in question, which is fairly wide.

Mr. Whelan mentioned that the question of qualification for a panel was a bar which could be raised. We are interested in this issue and none of our questions is motivated by anything other than an effort to elicit information. If the vocational panels are to mean something in this day and age, is it sufficient, as is currently the case in law, that a candidate has experience and knowledge in the relevant panel? Does Mr. Whelan propose making the criteria more specific, for instance, by requiring that one would run a rule over persons wishing to be candidates as a way of benchmarking whether they are capable?

Mr. Whelan

I am conscious of the Senator's point. The judicial assessors have taken too broad a view of the qualifications for the panel recently. One could raise the hurdle for candidates as regards knowledge and experience of the area in question. My system would require the elector, the voter, to have met this basic test also.

In his earlier comments on the basis on which a person would be elected, to which I listened closely, Mr. Whelan did not say knowledge, understanding or experience would be the criteria. I do not say this in a critical way as it is a natural view to take. The interesting aspect of the proposal is the requirement to be clear about who can make an input and to ensure the people voting on the educational panel are teachers or experts of some sort in the area in question. To achieve balance, surely we should also ensure the people whose names appear on the list must satisfy everybody that they come under the banner of administration, agriculture, education and so forth.

Mr. Whelan

In the Senator's case, it is ironic that the Senator most representative of labour is elected by the graduate panel rather than the Labour Panel.

I would not get elected on the Labour Panel.

Mr. Whelan

In addition, the Senator most representative of education was elected on the graduate panel rather than the education panel. In some ways, I do not worry too much about these matters because one has to leave them to the electorate to decide.

The real issue here is that if one wants to preserve the vocational nature of the Seanad, which is a big "If", one will need to focus the system on the panels rather than personalities. While Mr. Whelan's proposal is clear - I am not arguing there is anything wrong with it - I wish to press him on this aspect. Should we have equal certainty that the people on the panel are not on it because they are well known in a certain area, their personality attracts voters or they have the support of a party, but instead because they are experts in the relevant field, have contributed to it or are able to contribute to it?

Mr. Whelan

My instinct is that because the electorate would be so wide and each elector would have to vault the hurdle of being qualified for the panel in question, one would be better to leave the matter to the electorate to decide. One cannot be absolutist.

Under the system proposed by Mr. Whelan, the electors decide where they fit into it. There is, therefore, no quality assurance, so to speak, as regards the register. How do people qualify under the proposed system? It appears to be a matter for the electors to decide.

Mr. Whelan

I pointed out that electors would have to provide proof that they qualify as a voter on the Labour Panel by producing an RSI number or data protection clearance for an RSI number of an employee. If electors wanted to go on the Industrial and Commercial Panel, they would have to furnish proof that they are a director of a company or some data protection clearance that would establish that they are the director of a company. To get on to the Agricultural Panel, people would have to establish that they own land. There would, therefore, be a basic series of tests to show whether a person was qualified to be a voter in a particular panel.

Who would adjudicate on the matter?

Mr. Whelan

One could allocate this role to the county registrar, as we do on appeals on the Dáil electoral register if somebody wants to prove they live or do not live in a certain area. Certain matters could be taken as prima facie qualification for a panel. If one has an employee RSI number, for example——

I reflected on an interesting comment made by Mr. Whelan, namely, that we should have as broad as possible an interpretation as to whom would qualify for the various panels.

Mr. Whelan

When one considers the mix of criteria I set out, where does the full-time homemaker fit in? This category could be included in the Labour Panel.

That is the panel on which Kathy Sinnott hoped to be elected.

Mr. Whelan

The full-time carer at home, as opposed to someone employed as a carer, and the unemployed could also go on the Labour Panel.

This takes us into another area, that is, what Mr. Whelan described as a "broad mandate", although "broader mandate" would probably be a better description. I am interested in his views on an issue not mentioned in the submission - it was not necessary to do so - namely, the reason he completely ruled out retaining any element of the current system, for example, the idea of elected representatives electing another tier of democracy, as is currently the case. Mr. Whelan has obviously made a conscious decision that this should no longer be the case. On the other hand, he did not take the route of proposing to introduce universal franchise for Seanad elections by finding a way to fit every person in the country into one or other of the vocational panels. It would be easy to rearrange the panels in order that everyone would fit into some category.

Mr. Whelan

At the end of the day one could take my system and give everybody a vote in one constituency only. It might be more inspiring to have the option of having at least two or three constituencies, given the complexity of our lives. It could be statistically tested.

To return to the question of the current system of election by county councillors, again, I have tried to dispel the myth that it has a constitutional basis. It does not.

I am well aware of that. I have argued the point with Ministers.

Mr. Whelan

Nor do I buy the argument that indirect election by county councillors somehow gives them a mandate. If, for example, one is in year four of a five year local authority term when electing the Seanad, one has a very stale mandate that is passed on to Senators. When voters elect county councillors, it does not register how the people concerned will vote when electing the Seanad, except perhaps in the case of party political voters. If one goes back to the people in a referendum by reason of representation for people living in Northern Ireland or emigrants or whatever else is recommended, the public will say "no" to reform of the Seanad unless there is a dramatic widening of the basis.

Gimme, gimme, gimme.

Is that Mr. Whelan's reason for it? We are trying to rule out what is pragmatic. We cannot go to the people in a referendum which simply seeks changes to a couple of nuts or bolts in this operation without giving them something in return. We can see that, but before we arrive at that position, we have to be certain that we have at least got the core right and that the philosophical reasoning behind it is solid rather than the pragmatic reasoning of the past.

Mr. Whelan

Philosophically, I have nothing against running five or six of the current panels with five or six seats each and then creating another panel of eight or nine for local authority members to directly elect.

One could do that with the sub-panels. Each panel is divided in two. One could say, for instance, that the sub-panels which are determined by external nominators have what Mr. Whelan calls the broad franchise. How would he feel about that?

Mr. Whelan

I have a background in political science. One of my vested interests is that I was a spectacularly unsuccessful Seanad candidate in 1997. I only realised that there was an inside and outside panel then. There is always a problem with an electoral system that is not plainly understood by those voting in it. Local authority members should be given their own panel. This would let them see who and what they werevoting for.

The list system is inherently dangerous for the following reasons. One is handing over control to party caucuses in terms of who is on the list and in what order they appear. The parties or their constituency committees would decide in the end.

Mr. Whelan

Reform is not achieved if the voter's choice is not selected. Electing 30 people directly from one panel would create a ballot paper and a choice that would be too confusing for the electorate. Such a ballot paper could have up to 90 people on it.

I am not clear about how different that is from what Mr. Whelan suggests. If one takes the Cultural and Educational Panel, for instance, one could have 50 or 60 names on it.

Mr. Whelan

One could, but at the end of the day one would still have only eight or nine seats, whereas, if one opted for one constituency for 30 or 40 seats, one would have more people running.

The suggestion was made that the four provinces or four European election constituencies be used with, perhaps, 12 or 13 seats in each.

Mr. Whelan

What happens in the case of someone living on the border of two constituencies? Someone living in Castleknock is one mile from the constituency of Leinster which brings one into the realm of the geographic argument.

There are four well recognised geographic European constituencies. I am not sure people have a sense that they are living in the Dublin constituency, but at least it is part of our tradition.

Mr. Whelan

When they are redrawing them——

I was very interested in one of Mr. Whelan's first principal statements to us, that Government in recent years has had too much control. This holds true for political parties as well as Governments. There is far too much centralising of power. The leadership determines everything and everyone has to fall in behind it. How would Mr. Whelan suggest that we could change this in the Upper House, given that the Whip system is still very much the modus operandi? Would he propose the abolition of the Whip system in the Upper House? If one looks back on the contribution of the House in recent years, people are slightly less partisan and more reflective. How does one get over the difficulty of centralised government with a centralised party political machine opposite it every day?

Mr. Whelan

In pure theory one would reduce the Whip system in both Houses. Again, I come back to the mandate. If one has a party political Senator who has garnered 15,000 or 20,000 popular votes, or even 10,000 or 11,000, it is very hard for the party bosses to bully that person around, whereas in the current local government system, if he or she is not on what I call the payroll list - the list that the Ministers and Ministers of State are told to vote for when Seanad elections are held or they do not have the support of some of the party - it is harder for him or her to get elected. There would be a greater degree of independence as a result of Senators getting their mandate directly from the voters.

Is Mr. Whelan arguing that the bigger the mandate, the greater the independence one might have?

Mr. Whelan

I am not saying that always applies, but the current mandate for a Senator elected on the county council panels is probably based on about 100 or 150 votes.

Each one of those is worth 1,000 votess under the STV system.

That is what they say.

If they made it worth one million, it would not change anything.

That is because we cannot handle decimal points in the Oireachtas.

I rang Mr. Whelan because I was very taken with his submission. After a great deal of reflection, it is similar to the approach I would take myself. I am, however, concerned about a couple of points. Why does he feel it is necessary people should have votes in more than one constituency? It seems they could make a choice. I would not object to them making different choices.

It should be made clear that every adult who has a vote in a Dáil election would be able to vote on one of these panels. Mr. Whelan is very familiar with the nuts and bolts of the system. How do we ensure everybody has a vote and, at the same time, include a qualification requirement which determines which panel they stand for? It would not be above a political party to persuade its core supporters to distribute themselves evenly between five panels to maximise the impact. I am not saying they would do it, but it would be possible.

It would be.

A qualification is required. Should we have a miscellaneous panel for anybody not qualified for any of the other panels?

Mr. Whelan

I do not have any principled objection to them going for one panel only. It would not necessarily solve the problem to which Senator Ryan referred because, in fact, the wise political party would swamp one panel and take all the seats. It would have every Fianna Fáil or Fine Gael voter registered for one panel.

Except if Fianna Fáil and Fine Gael picked the same panel, then we would have great fun.

Mr. Whelan

At the end of the day everyone is either employed, employing or in receipt of social welfare, bar the independently wealthy, of which there are very few.

I would not have any problem disenfranchising them.

Most of them do not pay taxes anyway.

Mr. Whelan

All taxpayers are categorised in some capacity.

In principle, does Mr. Whelan believe everybody would qualify for one panel?

Mr. Whelan

I would aim for the principle that everybody would qualify for at least two panels. If such a system was designed, it would be very easy to check statistically by asking the MRBI or the Central Statistics Office to test it. One would find that if it was properly designed, everybody would qualify for two or three panels.

There is no doubt about that.

Mr. Whelan rightly concentrated most of his submission on the composition of the Seanad. We are all of the view that it is this is what will decide the regard in which this Chamber is held and its efficacy. Does he have views about the Taoiseach's nominees to the Seanad?

Mr. Whelan

The first point I have made in the submission is that there is a misapprehension that the Government needs to have a majority in the Seanad. I was struck by Deputy John Bruton's reference yesterday to the fact that, when Taoiseach, he did not have a working majority in this House and yet the House behaved very responsibly and productively in the conduct of its business. I do think, however, that if we loosen the panels in the way I suggest by broadening the electorate, that the Government of the day would be entitled to a strong voice in the Seanad. The best way to give it that would be to allow the Taoiseach to maintain some or all of his 11 nominees, even allowing for such Northern nominations that might be suggested. Even in the House of Lords, the British Government is entitled to a voice. The Government is entitled to more than the voice of the Minister when he or she comes to the House. The Government is always entitled to a voice in the body of the Upper House. It is wrong to say that de Valera designed the system to always ensure the Government had a majority. If he had done so, he would have required the 11 to resign when the Taoiseach resigned. That would have given Deputy Bruton a majority when he needed it.

There is also room in the 11 - it was designed as such - to include one or two others that did not come through the electoral process to represent the Taoiseach's view when the composition of the Seanad becomes known. The Government is entitled to a voice in the Seanad and the Taoiseach's seven or 11 nominees is the way to do it.

How would one fill casual vacancies?

Mr. Whelan

A substitute system like that used for election to the European Parliament could be used, although it might be too complicated. Alternatively, an electoral system of the Lower House and this House would fill the vacancy.

As we do at the moment.

Could the next person on the list be taken?

Mr. Whelan

That could be done. The only problem would be that it distorts elections, particularly in party political terms. It would mean the loser would not have won if it had been a straight off race between him and the second loser.

On behalf of the committee, I thank you for meeting us and giving such a vivid depiction of your views. When we come to compile our final report, we will reflect on your views.

The witness withdrew.

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