Mr. Carton is very welcome to our all-party committee on Seanad reform. I make particular mention of the trouble Mr. Carton has taken in making his submission, compiling the documents sent to our secretariat and travelling here to be with us at our public session. As Members, we have full privilege; Mr. Carton has qualified privilege. We look forward to hearing what he has to say. As we have read the submission with great care, perhaps he could highlight some of the salient points and then accept questions from us.
Presentation by Mr. Gerard Carton.
Mr. Carton
I thank the Chairman and Senators for that kind introduction. The role of Seanad Éireann is intended to be that of a consultative and advisory part of the Legislature which also acts as a check on the popularly elected Dáil Éireann. The smaller membership of the Seanad permits more extended debate and critical analysis of proposed legislation than is possible in the Dáil. It is better positioned to revise legislation under its consideration and to advise Dáil Éireann accordingly, yet Seanad Éireann is institutionally handicapped to a considerable extent under the provisions of the present Constitution, as compared to its pre-1936 predecessor under the 1922 Constitution.
Under the current Constitution, Seanad Éireann was never intended to have the same representative structure as the Dáil. In my suggested revision of Article 18, I propose an enlargement of Seanad Éireann to a maximum of 100 Members, composed of an equal number of men and women. The present Seanad in recent times has had a female membership of between 10% and 12%. By contrast, females constitute 51% of the population of the State. It seems that without deliberate change to the electoral system, it will take a very long time - perhaps another century - before anything approaching parity of representation of the sexes in the Oireachtas will be achieved. If reform was to take place, a working model of this ideal would be established and in due course would even be seriously noticed beyond the shores of this country. I commend this idea to the sub-committee wholeheartedly.
In the proposed revision of Article 18, I suggest a combination of existing representative groupings and the introduction of two new ones. I also suggest inviting the people of Northern Ireland to participate on equal terms. By having half the membership elected at each general election, contention for representation between the "old" and "new" representative groups can be avoided. Therefore, it is necessary that elections to the Seanad be decoupled from Dáil elections. Popular turnout for general elections for Seanad Éireann would be maximised each time. I advocate a completely popularly elected Seanad; the notion of an appointed membership is anathema to me.
I suggest that the existing very small body of Seanad electors who currently elect the nominees of the functional and vocational panels, be expanded, as I have detailed in my submission. This would provide the college of electors with a more democratic profile, an improvement in line with section 1 of Article 21 of the Universal Declaration of Human Rights. The college of electors would then be made up of 28% to 30% ex officio members and 70% to 72% elected members, the latter being composed of an equal number of men and women. I estimate that this expanded electoral college would contain between 3,500 and 4,000 members. The Taoiseach could then nominate candidates for election by this college.
With this in mind, the committee may think the number of Members of Seanad Éireann elected by this college too small. As an alternative, I suggest allocating a total of 12 seats to be elected by the college of electors - six each at each general election of a reformed Seanad every three to four years or more - which would distinguish the electoral college from the other representative groups in my proposal. The number of seats allocated to the functional vocational group could be correspondingly reduced to 32.
Elections of Members resident in other jurisdictions would obviously require negotiations with the governments concerned. If a constructive approach is used, these governments, being democratic, ought to appreciate the strengthening of ties achieved through the presence of the Irish diaspora in their countries. In the proposed section 7 of a revised Article 18, I have revised the list of offices a serving Member of Seanad Éireann could concurrently hold which would not be considered compromising to the office of Senator. The transitional section 23 on page 9 is not complete; for example, transitional elections to the Council of State, as has been suggested, is not mentioned, as I do not know how long this reform may take to implement. There may be other matters which need to be addressed in the same context.
The proposed new Article 19, detailing the functions and powers of a reformed Seanad Éireann, was the most difficult part of my submission. I intend this Article to contain those powers and functions not mentioned in the other Articles of the Constitution. I have taken my ideas from three sources and have been influenced by certain recent events in Ireland. When I revised my submission, I included a clarification of the impeachment process in a new section of the Article, section 5.
The advantages of my proposal that Seanad Éireann should have sole power to try all impeachments would be, first, clarity of procedure in the Oireachtas; second, consistency of verdicts, with the Seanad, under judicial guidance, more likely to reach a fair and balanced judgment; and, third, the possibility that the person charged and his representative could have greater confidence in both the process and the outcome. I have also clarified the list of public appointments which would not be subject to interview by the Seanad. Included in this list are judges, who I believe are now selected by a judicial appointments commission——
That is correct; but then they are chosen by the Government.
Mr. Carton
——and commissioned officers of the Defence Forces and police forces of the State. These exclusions are prompted by the risk of unacceptable politicisation of the Judiciary and security forces. There is one function not mentioned in my proposal for a new Article 19. The second paragraph of section 2 of Article II of the constitution of the USA provides that "[The President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur". I suggest that a provision like this regarding treaties could be added to the proposed functions and powers of Seanad Éireann by a concurrent amendment to Article 29. I have worked out a wording for this, if the committee would like to hear it. I suggest the same provision for urgent legislation in section 1 of Article 24.
I have included brief explanatory notes with the several consequential and incidental amendments suggested and recommended to other articles of the Constitution. A thorough reform of Seanad Éireann, as I have set out, is absolutely necessary. Clearly, Bunreacht na hÉireann is an enduring document and identifies Ireland as a notably strong and vibrant democracy. By reforming Seanad Éireann along the lines I suggest, we can ensure it contributes to the advancement of Ireland as one of the leading nations on this planet.
Thank you very much for your submission, particularly the detailed manner of its presentation. It clearly took a long time to prepare. Thank you also for the encapsulated proposals this morning which brought together the points made; it was most helpful.
I am taken with the thought put into this presentation. As Seanad Members, it is flattering that someone would consider what we are doing to such an extent. There were, however, parts of the presentation with which I did not agree.
There was an explicit and challenging suggestion that the minimum membership age should be 28 years. The overwhelming opinion expressed to us has been in the opposite direction, that if people are entitled to vote in Dáil elections at 18 years, it is discriminatory to prevent them from being Members of Houses to which they have a vote and, therefore, it should be possible to elect people to the Dáil and the Seanad at age 18 years. At what age should people be able to vote to elect the electoral college? The age of 21 years was mentioned but that might be a reference to an old Article of the Constitution.
I am also intrigued by the period of office for the citizens on the electoral college being 21 years. Given its composition of former Members of the Oireachtas and a period of office of 21 years, it seems there is a focus on an age threshold again. The vast majority of former Members of the Oireachtas would be former Members because of age rather than electoral disaster. Is that a deliberate idea to weight the system in terms of experience as defined by age? It is an interesting idea, although not necessarily one I share.
Mr. Carton
I was expecting that. I planted the proposal because I wanted to hear what the sub-committee had to say.
We fell for the plant.
Mr. Carton
I am happy to set the voting age at 18 years but have given serious consideration to the age for membership of Seanad Éireann. The word "senate" comes from the Latin; it is an assembly of elders, implying that it is made up of people who are more mature. In the 1922 Constitution, a person had to be 35 years before becoming a Senator; then the age was suddenly reduced to 21 years. With all due respect to Senators past and present, 21 years is a little too young. I am, however, prepared to compromise - I would suggest the age at which Mary Robinson became a Senator, which is 25 years.
I have been silent on the electoral college. Those who have been elected to the college would be elected when local authority elections take place, implying a voting age of 18 years.
Why do the members of the electoral college have such a long-term of office?
Mr. Carton
That is the maximum to which I would pitch the term but it could be reduced to 12 years.
It is not, then, a question of their serving a maximum of 21 years but if they are elected, they are automatically part of the college for 21 years.
Mr. Carton
Yes. It would be possible to insert a more flexible requirement of a minimum period of 12 years and a maximum of 21 years.
Would the explicit role of the Judiciary create a risk of breaking down the clear perception of the separation of powers?
Mr. Carton
I am not aware of any danger in that respect. As judges vote at elections, I see no difference.
It could be argued that both Houses are polluted with lawyers.
And farmers.
I thank Mr. Carton, because he obviously has a detailed knowledge of the area and put a great deal of thought into the submission. He spoke about Senators representing Northern Ireland being elected on the same basis as Senators in the Republic. From a constitutional point of view, would there be a difficulty with such people being elected rather than nominated?
Mr. Carton is an Irish emigrant living in England. What is his feeling about the value people living in Britain would place on representation in the Seanad? To what degree would they want to participate?
Mr. Carton
My idea for Northern Ireland was to make it available to them and it would be up to them to take it up. If one third participate, there should only be an allocation of two seats.
I am asking about the way they are elected. If there is a popular vote in Northern Ireland, there would be constitutional problems.
Mr. Carton
Obviously, this would require negotiation with the British Government - I mentioned this in my opening remarks. There is now a much greater font of goodwill in the British Establishment towards an idea like this but we can only "suck it and see". If it is in place and certain groups in Northern Ireland treat it with disdain, the seats that would have been allocated to them should be left vacant. They should be available to them and it is then up to them to take them up.
The Irish community in Britain becomes more intensely Irish to quite an extent and I am no exception. However, we feel shut out. It is my belief that Seanad Éireann is an ideal forum for the emigrant voice to be heard. Many emigrants would dearly love to have one of our own here speaking and dealing with the affairs of the nation. Many pay a great deal of attention to what happens here.
I thank Mr. Carton. The committee will need more time to study the suggested new Article for the Constitution, which is interesting and challenging. Currently, the power of impeachment rests with all Members of the Oireachtas and this would give the sole power of impeachment to the Seanad. What is the intention behind this?
There is an argument that there should be some form of parliamentary scrutiny of the nomination of judges. It has been said a new commission has been established to nominate people but it simply provides a list of names for Government which still determines the appointment. Should the Seanad be involved in the process of appointing members of the Judiciary in the same we as we would have these new powers of impeachment?
Mr. Carton
I was very influenced by the constitution of the United States. The Senate there interviews judges before they take up their appointments, and if the Senate does not like the look of them, they do not get the job. If we had this judicial appointments commission, there would be a clash, which I do not want to see happen. For the sake of the Seanad, in the revision of my submission I excluded judges from being interviewed.
In addition, please remember that judges are constitutional officers who, if they do not behave themselves, are impeached. The current impeachment process looks a mess. One can be put on trial in either the Dáil or the Seanad and the person at the receiving end of this treatment could justifiably complain that if he had been tried in the other House, the verdict would have been different.
There was a possibility in more recent times that this situation could have arisen, but Mr. Carton is absolutely right in saying that there is no constitutional certainty on it.
Mr. Carton
I know, but this is how I see it. As the Dáil and the Seanad are two different types of institution, there is a very real risk of getting a different verdict in either, and consistency of verdict is far more important. A person being impeached could rightfully complain of being tried by a kangaroo court. That is what it boils down to. Therefore, I have copied the United States constitution and set out a very clear and definite impeachment process all the way through——
It would certainly give us a definite new role.
Mr. Carton
——in order that anybody who is up for impeachment will know exactly where he or she stands, what the process is and that it is all above board, fair and reasonable.
Mr. Carton is right that there was total certainly at one time——
There was, and it was messy on the one occasion on which it looked as if we were going down that road. I thank Mr. Carton for being here and for the huge care, study, reflection and other qualities put into his presentation. It was very good of him to come. I know he has brought somebody with him and we are delighted to see her too.
The witness withdrew.