Seanad Éireann debate -
Wednesday, 2 Feb 1927

Vol. 8 No. 4

PUBLIC BUSINESS. - CONSTITUTION (AMENDMENT NO. 5) BILL, 1926—SECOND STAGE.

Question proposed: "That this Bill be read a Second Time."

Mr. KENNY

The Constitution (Amendment) Bills, 2, 3 and 4 affect membership of the Dáil. The first section of this Bill reads: "The Constitution shall be and is hereby amended by the deletion from Article 51 thereof of the words ‘not more than seven' and the insertion in that article of the words ‘not more than twelve,' in lieu of the said words so deleted." The effect of that will be that whereas now we have seven Executive Ministers and a certain number of extern Ministers, you absorb the whole margin for extern Ministers by increasing the number of Executive Ministers from seven to twelve. That is a proposal that infringes on the prerogatives and privileges of members of this House because if you refer to the Constitution and to certain articles of it affecting the privileges of members of this House, you will find that by Article 52 these Ministers who form the Executive Council must all be members of the Dáil. By Article 55 of the Constitution other Ministers, not members of the Executive Council, may be appointed on the nomination of the Dáil. Nothing in the Constitution makes it incumbent on those Ministers—extern Ministers so-called—to be or to become members of either House of the Oireachtas. Since the Saorstát was established, however, no extern Minister has been nominated who was not a member of the Dáil. The Bill that is now before the Seanad leaves Article 55 of the Constitution untouched, but purports to amend Article 51 by increasing the maximum number of Ministers of the Executive Council to twelve. As, under Article 55, the total number of Ministers, including members of the Executive Council, must not exceed twelve, this Bill, if passed, will make it possible for all the Ministers to be members of the Executive Council. In such a case no Minister would fall to be appointed under Article 55, and every Minister would necessarily be a member of the Dáil.

It may be well to draw attention, by way of conclusion, to the provisions of Section 7 of the Ministers and Secretaries Act, 1924. Under this section the Executive Council may, on the nomination of the President appoint persons, being members of the Oireachtas, to be Parliamentary Secretaries to the Executive Council or to be Executive Ministers. The total number of persons in receipt of salaries as Ministers or as Parliamentary Secretaries at any one time is not to exceed 15. At present there are three Parliamentary Secretaries in addition to the Executive Ministers and to the extern Ministers. There is a Parliamentary Secretary to the Minister for Finance, a Parliamentary Secretary to the President, and a Parliamentary Secretary to the Minister for Defence. Now, under this Bill which proposes to increase the number of Executive Ministers to twelve and with the three Parliamentary Secretaries, the limit of 15 which is laid down in the Constitution would be exhausted and it would follow that the provision for the appointment of extern Ministers under Article 55 of the Constitution would become a dead letter as the margin for the appointment of extern Ministers would have been absorbed. When we come to amend the Constitution in this proposed way we have to consider that we are here as a Seanad. I take exception first to the way that the Dáil and the Government have approached this matter. They have done so without any reference to this House, and I might say that we are an integral portion of the legislature and of the Constitution.

Any amendment of the Constitution would affect us equally with the Dáil. The Oireachtas is based on the Constitution, and the Oireachtas is composed of both the Dáil and the Seanad. Any amendment or alteration of the basis upon which the legislature is founded is a matter in which this House is equally interested with the Dáil. The approach to these very serious amendments has been in this way, that a Committee of the Dáil was set up, and there was no previous inquiry made, I take it, as to whether this House would like——

Mr. O'HIGGINS

A Committee of the Dáil was not set up.

Mr. KENNY

I read here "a Select Committee on certain proposals for legislation to amend the Constitution." That was to consist of 10 Deputies and the Deputies selected for the Committee were appointed by order of the Dáil.

Mr. DOUGLAS

On a point of order, was not that a Committee on this particular Bill?

CATHAOIRLEACH

I think the confusion arose in this way: I think the Minister thought you were suggesting that this attempted legislation was based on the report of the Committee, but what I think is the fact, and what you want to bring out, is that the Committee was a Committee on the Bill, and that Committee of course did not include any member of this House. That, I think, is your point?

Mr. KENNY

The point is that this Committee was appointed by order of the Dáil on the 17th November, 1926, to make certain recommendations regarding certain proposals for legislation to amend the Constitution, and to report back not later than December 1st.

CATHAOIRLEACH

Was not that Committee appointed after the Bill was introduced into the Dáil?

Mr. KENNY

It emanated at any rate from the Dáil.

CATHAOIRLEACH

I thought that was your point.

Mr. KENNY

The terms of reference of that Committee were restricted. The Committee were not empowered to roam over the whole Constitution and suggest amendments to the various clauses. They were restricted in a certain way, and they have brought in their recommendations accordingly. We are concerned here with the taking away by a Bill of certain privileges and prerogatives of this House, which powers and prerogatives, even under the Constitution, are rather meagre, and I would have thought, seeing the character of this House and the qualifications that are supposed to be possessed by its members, and that are set out in the Constitution as being essential for election to this House, that instead of restricting the privileges we already enjoy there would rather be a disposition on the part of the Dáil to extend our privileges when it came to a question of amending the Constitution, that is if the Dáil takes this House seriously at all. Possibly the Dáil does not, and possibly there are members of this House who do not take the Dáil very seriously, but when you look into the Constitution and read the respective qualifications necessary for election to this House and to the Dáil you will see that the framers of the Constitution had their own particular views with regard to the importance of this House and with regard to the Dáil. Here is Article 30 of the Constitution:

"Seanad Eireann shall be composed of citizens who shall be proposed on the grounds that they have done honour to the nation by reason of useful public service or that, because of special qualifications or attainments, they represent important aspects of the nation's life."

I think that that particular clause and what it implies was borne fully in mind by the President and by the Dáil in forming the first Seanad here. The conditions laid down in Article 30 were fairly well adhered to, with the result that you have a personnel in this House responding fairly to the conditions laid down. Turning back to Article 26, I find that the only qualification required for membership of Dáil Eireann is "Dáil Eireann shall be composed of members who represent constituencies determined by law."

That is all. It does not prescribe any special qualifications. Now one would think from that that the aggregate of wisdom and legislative ability in this House should at the least be on the average on the same plane as that of the people of the Dáil, and that the President might have widened his range of vision in forming his Cabinet, certainly in regard to extern Ministers, and considered whether there are not some members of this House qualified for these positions. That is what I say. The Seanad is an integral part of the Oireachtas, but its members are not considered worthy of being appointed as extern Ministers, or even as Parliamentary Secretaries. I have read for you the conditions for membership of Seanad Eireann, and I shall now refer to the practice both in Great Britain and in the Dominions.

CATHAOIRLEACH

Pardon me for a moment. Am I right in saying that the point you wish to call attention to, and it strikes me as being a very important one for this House, is this, that under the existing Constitution as regards extern Ministers Senators of this House were eligible?

Mr. KENNY

That is so.

CATHAOIRLEACH

If the total number of Ministers, both Executive and extern, is reduced to twelve, and the Executive Council can be raised to twelve, your case is that may operate to exclude this House from any participation in the Ministry.

Mr. KENNY

Not "may" operate, but "will" operate.

CATHAOIRLEACH

There is a fallacy in that. The Government do not claim that their Executive Council should always consist of twelve. They only claim the right to have it consisting of twelve, but they may have it any smaller number. If, for example, it only consisted of ten, then they would require two extern Ministers, and I take it, as regard the Seanad, members would be eligible for either of these two appointments. Your point is that their power to raise their own numbers to twelve means that if the Executive Council increase their numbers to twelve they shut out this House from any chance of participation in the Ministry. Is that it?

Mr. KENNY

That is so. Passing away from that, I wish to say that it is scarcely wise to restrict a Committee when coming to a consideration of an amendment of the Constitution to certain articles of the Constitution, because I am sure in this House there are many members who are in agreement with the idea that the Ministers should be chosen as in the Dominions and in Great Britain from both Houses, that the Article in the Constitution which limits the selection of Ministers to members of the Dáil should be expanded, and that instead of Dáil Eireann being the limitation the Oireachtas should be. Any member of the Oireachtas should be eligible for Ministerial office. These are some of the points on which amendment will, I think, be very desirable in the Constitution. Speaking on the principles of the Bill, there is a further amendment which might be considered very desirable, and that is, whereas at present we can hold up a Bill for 270 days, and this House, I am sure, has not exercised that privilege without——

CATHAOIRLEACH

However desirable an amendment of that kind may be, it would be quite foreign to the purpose of this Bill, and I could not have it on Second Reading.

Mr. KENNY

I appreciate that.

CATHAOIRLEACH

Your observations up to the present have been quite appropriate to the Bill.

Mr. KENNY

I do not wish to follow that further. There are other points in which the Constitution could be amended very usefully as the result of the experience of both Houses during the past three years. When it seemed necessary to amend the Constitution, and that a restriction was imposed on the Committee, I presume it is open to this House when these Bills come forward now for consideration here to bring in amendments, but I presume we will not be able to bring in separate Bills?

CATHAOIRLEACH

You cannot bring any amendment to this Bill which would be foreign to the purpose of the Bill. Any amendment appropriate to the change proposed would be quite in order. For example, it would be in order to propose that at least one of the members of the Executive Council should be a member of this House.

Mr. KENNY

That is all I have to say.

Mr. BENNETT

While criticising this Bill, I think we ought not to take the drastic course of not giving it a Second Reading. It might be desirable to have a certain extension of the Executive Council but I think it is eminently undesirable that a provision of the Constitution whereby people other than members of the Dáil may be appointed Ministers should be taken away from the citizens of the Saorstát. If the Bill as it stands goes through, it will be impossible for any man not a member of the Dáil to be a Minister. I do not think the Seanad would desire that. They have now the power, and such power is used by all the Dominions, with the possible exception of Africa, to appoint members of both Houses members of the Government. The Dáil in its wisdom completely ignored this House in that matter. They had a Committee set up to examine their rights and privileges. They never told us about it, or asked us whether we wished to put a member on that Committee. One would have thought they would have invited us to investigate whether these privileges should in the interests of the Saorstát be curtailed. They did not take that course. They set up a committee of which we knew nothing—we might have seen something about it in the newspapers—and that committee reported that these drastic steps should be taken—that we citizens of the Saorstát, as well as Senators, should for ever be deprived—because practically that is what it amounts to—of the right to become Ministers. Senators were selected because of certain expressed qualifications defined in the Constitution. You would have thought that the Government would have availed themselves of them, but instead of making any attempt to avail of them, they make an attempt in this Bill to prevent any future Government from taking advantage of the ability and experience of Senators. I do not wish to oppose the Second Reading of the Bill, because I think it is possible that more than seven members of the Executive Council are desirable, but I certainly hope to introduce amendments on the Committee Stage to prevent the intention expressed in the Bill from being carried out by this or any other Government.

Mr. DOUGLAS

The point raised by Senator Kenny, if I understand it correctly, is one which certainly ought to be considered by the Seanad. But I think on consideration it will be found that while it is one of considerable importance, it is not one of very great simplicity. In the first place, the practice up to the present—which I think for many reasons is a wise practice— is to make amendments to the Constitution one by one, and to have a Bill dealing specifically with each subject, rather than having omnibus amendments in one Bill to the Constitution. This Bill proposes to alter the Constitution to allow for elasticity in the matter of the number of members of the Executive Council. Under the Bill it will be possible for the President, when choosing, to nominate the full number of twelve, and if he obtains the assent of the Dáil to the twelve, there would then be no Ministers appointed by the Committee, commonly called extern Ministers. In that case there would be no Committee of the Dáil to choose Ministers, as the present Constitution provides that all the members of the Executive Council must be members of the Dáil. It will not be possible for a Senator to be chosen as it will then stand. This Bill does not make it compulsory that the President shall choose twelve. It is left to the particular circumstances which I think will vary from time to time.

Senator Kenny feels that privileges are being taken from the Seanad. I am not very much impressed from the point of view of privileges. Without arguing whether it is a privilege or not to be a Minister, the only privilege we had was that the committee of the Dáil could choose a Senator. If there is a committee of the Dáil to choose Ministers in future, they will still be able to choose Senators. The only point is that there may not be such a committee if the President chooses to have all the Ministers inside the Executive Council. That privilege, to my mind, is not very great.

I am also not impressed by the charge of Senator Bennett that a committee of the Dáil was set up without consulting us. This Bill was introduced by the Government, and the Dáil set up a committee to look into it. The Bill has now come to us, and there is nothing to prevent us setting up a committee to look into it from our point of view, if we think fit. There was a further committee consisting of a number of persons, of which I was a member, long before this Bill was introduced, who were invited by the Executive Council to make certain proposals to them for amendments to the Constitution. Members of that committee were left perfectly free to take any action they thought fit, and their proposals were purely for the purpose of aiding the Executive Council in considering how far they should introduce amendments to the Constitution. There was an understanding that the members of that committee, while retaining their own freedom, should not disclose the nature of the recommendations which they had made. I am not, therefore, free to say exactly what the committee recommended, but I am perfectly free to say that as a member of that committee I advocated that whether this amendment took place or not—that is whether the President chose five or seven or twelve Executive Ministers— the provision in the Constitution which prevented his choosing a Senator should be withdrawn. I am still of the opinion that, quite apart from whether there are to be extern Ministers or not, there should be nothing in the Constitution to prevent a Senator becoming a Minister if otherwise chosen.

At the same time, I think on consideration, we will see that there could never be many members of the Seanad members of the Executive Council. The position is not quite the same as in England. The Government under our Constitution is clearly responsible directly to the Dáil. They are the servants of the Dáil, which is the directly representative House. While I see no reason why a suitable person in the Seanad, who is in general agreement with any particular Government, should not be chosen as a Minister, I do recognise that you could not have a President in the Seanad suitably under our Constitution, or a Minister for Finance. There are natural limitations which, whether in the Constitution or not, will be applicable. It is a matter entirely for the Cathaoirleach to say whether one could, by amendment of this Bill, alter Article 52, which says that the members of the Executive Council must be members of the Dáil. What is required is, to remove that particular portion of Section 52—not to alter this. That would leave us, at any rate, in a better or clearer position than we were before.

CATHAOIRLEACH

It seems to me that we could not alter that on this Bill, but I do think that it would be open to us in Committee, if we were so advised, to insert that in the event of the Executive Council being increased from seven to any number in excess of seven, the members selected over and above seven might be selected from either House. I am not committing myself to that, but if any Senator puts down an amendment I will deal with it.

Mr. DOUGLAS

The effect of that would be that Article 51 would be contradicting Article 52.

CATHAOIRLEACH

I quite agree, if the Constitution stood as it is, but if you come to amend it in this particular matter, then the position is different.

Mr. DOUGLAS

My point is that in order to carry out what I think is the desire of Senator Kenny, Article 52 would have to be amended, and it is a matter for you, sir, to decide whether that could be done in this Bill, or whether a separate Bill would have to be introduced. I am inclined myself to the latter opinion, that a separate Bill would be required, and I am sorry, personally, that the Government did not see their way to introduce that Bill.

While I am speaking on the matter, I should like to say that I think the Seanad suffers considerably by not having either a Minister or a Parliamentary Secretary in this House. I think that the Government ought to look in the future to having one person who would be in a real sense a representative of the Government and, consequently, the leader of the House. It is not satisfactory as it is at present, and I think a good deal of misunderstanding and difficulty with regard to the stages of Bills are due to the fact that there is no authoritative person, as there is in most Second Chambers, representing the Government of the day. Whether that Government has a majority in the Seanad or not, has nothing to do with it—they should have a representative. That is an additional reason why I think some amendment of this Bill, such as was suggested by Senator Kenny, should take place, or another Bill be introduced to give effect to it.

Sir JOHN KEANE

I feel that we cannot amend this Bill to effect the principle demanded by Senator Kenny and that the Bill should be rejected, because it is very important that Senators should be eligible for a post in the Executive Council. The fact that the Seanad cannot have several members on the Executive Council, or that the President or Minister for Finance cannot be a member of the Seanad, does not affect the principle. That should be kept clearly in view. We should not be led astray by the argument which may be put forward that the power to have extern Ministers still remains. It will remain. Senator Douglas says it will have a certain elasticity. The President can have extern Ministers or not as he likes. I believe the whole object of this Bill is to chain up those extern Ministers, They have been very embarrassing to the Government on some occasions. If that has been the experience, it is unlikely, unless they are very docile, that they will be re-appointed in that capacity. All this is rather interesting, because at the time it was generally felt that it was a doctrinaire constitutional device to try and bring Ministers outside the party system, so that the party system should be shorn of its vices. All that has happened has proved it to be necessary. You must have discipline in the ranks of the Government. This so-called theoretical device led to indiscipline and very considerable confusion on the part of the public, who did not quite appreciate these niceties, when they saw people they knew as Ministers speaking with totally different voices, and advocating widely different policies. I do not think that much would be left to this House by the nominal retention of extern Ministers. I do strongly feel that we should come into line with our sister Dominions, all of whom, I think, have the power to choose Ministers from their Senate or Upper House.

Sir THOMAS ESMONDE

I agree with Senator Douglas that the Government should be represented in this House, and I think they make a great mistake in not being represented here. Any Government which has a majority in the Lower House of the Legislature should be represented in this House, whether it is by extern Ministers or not is a matter for its own determination. From the point of view of efficacy and harmony between the two Houses I think it would be extremely well if a member of the Government was a member of this House representing them in this House. It is proposed to increase the members of the Executive Council under this new Bill. If there is to be any increase in the number of members of the Executive Council I think the claims of the Department of Local Government should be recognised. It is one of the most important Departments that we have in our administration, and I trust that whenever the Government adds to the members of the Executive Council the Minister for Local Government will be included.

Colonel MOORE

I have felt from the very beginning the great embarrassment of not having some party leader in this House. As matters stand, no one knows exactly what a particular Minister wants. There is no one to decide. Ministers themselves are obliged to leave their other duties to come to this House and sit here in a very awkward position in order to give their views occasionally as to what they mean. I do not think such a course is dignified or is very suitable for Ministers themselves.

I think it would be very much better if we had a leader in this House. The result of not having such a leader is just as I prophesied, that the Chairman of this Assembly is in two positions whether he likes it or not. He is in the position of an ordinary Chairman and he is also a sort of leader of the House, giving advice and doing things which an ordinary Chairman would not do because there is nobody else to do them. I do not think it is convenient; I think it would be better if the Minister could take his place in this House, as is done in the other Dominions and in every country that I know of. I suggest that this ought to be arranged by some means. I am not going to vote against this Bill.

Mr. O'HIGGINS

I was rather taken aback by the onslaught of Senator Bennett. If this Bill is a Coercion Bill it is probably the shortest Coercion Bill that was ever drafted. It consists simply of one section: "The Constitution shall be and is hereby amended by the deletion from Article 51 thereof of the words ‘not more than seven' and the insertion in that Article of the words ‘not more than twelve' in lieu of the said words so deleted." I do not think the Executive Council or the Dáil thought that that constituted a sinister attack on the rights of Senators. I doubt if Senator Bennett thought it either, but, by pretending to think it, he was able to ventilate his views on the desirability in the abstract of Senator-Ministers, and I congratulate him upon his success in doing that.

The sole principle of this Bill is whether it is desirable to have a maximum for the membership of the Executive Council of seven; whether it is not desirable to give a discretionary elasticity to the President up to a maximum of 12. Now we think that each succeeding President should be free, in the circumstances which he finds confronting him—political exigency and so on—to decide just how much of the sphere of administration he would take into the Executive Council as a matter of collective responsibility. The other was rigid. You had a maximum of seven and any posts beyond that were to be filled by a Committee of the Dáil with extern Ministers. This extern Minister idea, let me say frankly, has not just proved all that we believed it might. Much was said at the time when that idea was mooted, in the Constitution, as to the desirability of mitigating some of the rigidity of the party system, of allowing certain matters to be the subject of free non-party discussion in the assembly, in the country and so on. The difficulty, in practice, has been that all these departments radiate into the sphere of collective responsibility in the matter of finance, and, finance being a very important consideration in the administration of any department, the single responsibility idea of the extern Minister, is very much more a matter of theory than of fact. No extern Minister could get along without the hard cash. For the hard cash he had to turn to the Minister for Finance and when he does that the whole question becomes essentially and fundamentally a matter of collective rather than single responsibility, so that, we are not now as enthusiastic about this experiment of the extern Minister, with his single responsibility, as some of us were before the matter had been worked out in practice.

This Bill does not purport to abolish it. It simply asks for discretionary elasticity for the President, on his election, as to the number of persons he would like to have in the Executive Council and the number of departments he would like to make matters of collective responsibility. The maximum of course is twelve. It might be eight or nine or ten according to his judgment of the requirements of his political situation. Nothing would be gained by making a forecast. It would be, of course, idle, but if this Bill passes, each President, after his election, would be quite free to decide whether he would have as many as twelve Ministers or how many he would have. That was not intended at all to touch the question of qualification or eligibility for membership of the Executive Council. The Article bearing on that, as Senator Douglas pointed out, is Article 52. I do not think that the general question as to who should or should not be a Minister and what the qualifications of a Minister ought to be, and so on arises on this Bill.

There is of course just this relevancy that an extern Minister, according to the Constitution, need not necessarily be a member of the Dáil, for that matter he need not necessarily be a member of the Oireachtas; so far as I am aware, he might be any citizen. This Bill is not in any direct or specific way an encroachment on the rights of Senators as Senator Bennett seemed to think. He referred with indignation to the fact that the Dáil had set up a Committee.

Mr. BENNETT

It is a distinct infringement, because that principle was specifically stated.

Mr. O'HIGGINS

It is an inaccurate description of this Bill to say that it is a Bill to increase the membership of the Executive Council to twelve.

Mr. BENNETT

It is a fact, I only spoke of the facts as they are.

Mr. O'HIGGINS

It is not a fact.

CATHAOIRLEACH

The substance of the Senator's suggestion is that the Bill will leave it within the power of the President to increase his Council to twelve, and having that power, if he exercises it, it shuts out the possibility of any Senator becoming a member of it.

Mr. O'HIGGINS

It is a Bill to increase the maximum from 7 to 12, but the complaint about the Dáil setting up a Committee is scarcely well founded. The Dáil set up a Committee of the Dáil. It could not very well set up a Committee of the Seanad. That Committee was set up, after the Bill was introduced, for the better and more detailed consideration of this series of Bills. It was a Committee of the House in which the Bills had been introduced. If the Seanad would like to give more careful consideration to these Bills, it is open to it to set up a Committee. I would be very glad to come before that Committee and give that kind of exposition and explanation of the Bills that was given to the Committee of the Dáil. So really coming back to what the Bill does effect as distinct from what it does not effect, it is simply a proposal to leave to any President after his election a discretion and elasticity as to the number of Departments he would care to make matters of collective responsibility; the number of Ministers he would like to have in that political group round the President which stands or falls as a group.

Senators know the extern Minister position. If an extern Minister is defeated in the Dáil on some important Departmental measures, he goes down alone. If the Executive Council is defeated and goes down, the extern Minister stands. The President should be free to judge his position and to decide how many departments he will take collective responsibility for; how many individuals he will snowball round him as a political group, as an executive council, which stands or falls as a group. That is the proposal in this Bill, to leave him a freer hand, not to maintain this rigid maximum of seven, but to leave it to each succeeding President to say how far he will go in the matter of collective responsibility, and how many Ministers he will call into the political group immediately around him.

Question—"That the Bill be read a Second Time"—put, and agreed to.

Sir JOHN KEANE

I beg to move that this Bill be referred to a Select Committee for consideration. There are important implications in this Bill that we have not yet had an opportunity to study. If I am in order, I shall move that the Bill be referred to a Select Committee.

CATHAOIRLEACH

The Senator is perfectly in order. Do you name your Committee or do you leave it to the Selection Committee?

Sir JOHN KEANE

I think I should prefer to leave it to the Selection Committee, and I move therefore that the Bill be referred to a Select Committee to be appointed by the Selection Committee.

Mr. BENNETT

I beg to second.

CATHAOIRLEACH

That applies to one Bill only.

Sir JOHN KEANE

Yes.

Question put, and agreed to.