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Seanad Éireann díospóireacht -
Thursday, 2 May 1929

Vol. 12 No. 7

Public Business. - Constitution (Amendment No. 11) Bill, 1928—Report Stage.

I move:—

After the word "disqualified" to insert the words "and the term of office of a member so chosen."

New section. Before Section 2 to insert a new section as follows:—

"2. Article 34 of the Constitution shall be and is hereby amended by the deletion of all words from ‘shall retire from office' to the end of the section, and the substitution of the following words ‘shall, unless he sooner dies, resigns or is disqualified, hold office for the residue of the term for which the member, whose death, resignation or disqualification occasioned the vacancy, would have held office if he had not died, resigned or been disqualified."'

I do not know whether you propose to take the Title now or to leave it to the end, as is usual, but there is no point in that, because the whole matter will have to be discussed on one or other of these amendments which I am proposing. To take these two amendments together, their object is to change the term of office of a member who will be elected to fill a casual vacancy, and I propose that the member so elected should remain in office for the remainder of the term for which the person whose place he fills would have remained in office. I have argued this matter here on two occasions. My object in putting down these amendments is to have the matter discussed, and I think it would be a mistake for me to put forward my point of view again. I formally move the amendments.

I am entirely in favour of Senator Douglas's two amendments, and also of the amendment which appears in the name of Senator Mrs. Wyse Power, because it deals with the same matter. Under the old system of co-option to fill a casual vacancy in the Seanad there was a very good reason why the term of the person co-opted should end at the end of the current triennial period. It was because such a member was elected solely by the members of this House, whereas the constituency which elected all the other members was the whole country. Now the electorate has been changed, and it is the same for the filling of a casual vacancy as for the triennial election, and there is no reason why a person who is elected to a casual vacancy should not hold office for the remainder of the term of the person who was originally elected. You have the same constituency and the same electorate. It would simplify the triennial elections very much. I am also strongly in favour of Senator Mrs. Wyse Power's amendment. Perhaps I would be out of order in discussing that now, but there is no reason why we should have an election to fill a vacancy that occurs within a month of the triennial election. These are very important amendments to the Bill, and I am not sure that the House has had sufficient time to consider them, or has really grasped the importance of them. If there was a general feeling in favour of these amendments, and if we had any assurance from the President that he regarded them favourably, I think it would be well, as they involve an amendment to the Title of the Bill, a further amendment of the Constitution, and perhaps amendments to another Bill or two which will have to come before us, before we discuss them finally, that if the general feeling of the House is in favour of them, they should stand over for some little time until we could get the Parliamentary draftsman at work, because the matter is a very complicated one, and I am not quite sure that the amendments in their present form would work out properly. I suggest under these conditions that it would be better that this should stand over for some little time.

Cathaoirleach

Perhaps we had better have some discussion on the merits of the amendments, and if they are agreed upon we could then consider the further matter raised. It would be better to adjourn it then, because if a particular Article of the Constitution is to be amended you would have the amendments before you.

The only thing that I can imagine that can be said in support of Senator Douglas's amendments is that they tend to simplify the triennial election. When that is said, I think all that could be usefully said in support of them has been said. The Oireachtas generally is elected on the basis of proportional representation, and to the extent that this amendment allows a bare majority in the Oireachtas to fill all vacancies occurring between two triennial elections the amendment is in conflict with the principle of proportional representation. Supposing four or five vacancies occurred between two triennial elections. Now, a combination of Parties having a majority in the Oireachtas could fill all these, and they would be filled for the period for which the original members would have sat. Then there would be no opportunity of adjusting the balance when a triennial election comes along. The chances of minority Parties would be considerably and fairly materially altered if there were always twenty vacancies instead of perhaps twentyfour or twenty-five. It might mean a difference to a Party of one representative, or it might conceivably mean two in certain circumstances. If there could be an understanding that vacancies occurring between two elections would be filled by a representative of the interests to which the outgoing member belonged I feel I could support this. But if there was such an understanding, how can there be any guarantee that it would be honoured? In the first place, it would have to be put into a Bill. You would have to make it really illegal or impossible for anybody, except representatives of the particular interest concerned, to make a nomination.

For the first couple of years of the life of the Seanad there was a tacit understanding of that kind, and it was fairly generally observed. But it was broken away from, and I cannot see, particularly under the new system, any possibility of restoring that understanding and of making it a practical and binding one. Then there is, of course, the consideration that a general election for the Dáil might completely alter the complexion of the representation there, but for the next triennial election of the Seanad that change could not make itself fully felt, inasmuch as by-elections occurring might not come under review. Of course, when a Dáil vacancy occurs the person elected to fill it fills it for the remaining period, but he has to go out at the next election. There is an opportunity of adjusting it. He must submit himself to the electorate at the first available opportunity. I think that is a good principle to adopt. If a person gets in here, I think it is fair enough that he should submit himself to the electorate at the very first available opportunity. Regarding the point as to redrafting and so forth, if the House does agree to the principle of this amendment, which I hope it will not, I think the amendment, or the whole Bill, should be brought in in a new form, so that it would be put in a much better shape, as it is fairly hard to adjust the amendment to the Bill in its present form. But in any case I oppose the principle of the amendment for the reasons I have stated.

I was not present to hear the case that the proposer of the amendment made for it, and I have a good deal of sympathy with Senator O'Farrell's attitude. We want to guard against anything like procedure which would involve an apparent or a real injustice to any section, and I can see the possibility of this amendment having such an effect unless safeguards are provided. If a vacancy occurred in the Labour Party, I certainly think it would be desirable that that vacancy should be filled by a Labour man. The same would apply to the Fianna Fáil Party, and the same to the Party with which I am associated. But in practice there is no guarantee that that would operate. As a matter of fact, the last casual vacancy that occurred here was filled by a very estimable gentleman, but he was not a representative of the Party which suffered a loss by the occurrence of the vacancy.

Was he not proposed by one of that Party?

As a matter of fact there was no Party nomination, because the peculiar circumstances of that election did not permit of any kind of considered arrangement. However, I am not making any grievance of that. I simply mention it to illustrate what might happen. Senator O'Farrell has referred to a kind of tradition that was established that maintained for a time this idea to which he referred. I think that that tradition was broken by every Party in the House.

It was broken by the Government Party in filling the first casual vacancy that I can recall; it was broken by the Labour Party when Senator Johnson went forward for a vacancy that was not a Labour vacancy, and it was broken by, I think, all Parties except one at the last election. In any case, Senator Douglas and his colleagues may wash their hands of guilt, but the net result of that election was an added recruit to their ranks. But there is one Party, so far, which has nothing to complain of in regard to the carrying out of these elections, and that is the Labour Party. So far as they are concerned in regard to the vacancy that occurred in their ranks that understanding was scrupulously observed. But, as Senator O'Farrell pointed out, we cannot always count upon such a tactful attitude towards that Party, and it may be that growing Parties would only observe it as long as they find themselves unable to make any effective assaults upon the vacancies of their opponents. Certainly if this amendment is carried the majority Party would be able to capture all casual vacancies that occur, no matter what Party these might have belonged to, and unless there is some definite understanding—I do not know how it could be made workable—and unless this amendment is accompanied by some safeguard against that, I am afraid that later on there will be grounds for grievances amongst different sections.

If there was a vacancy in the Party to which Senator Douglas is attached I would like to see it filled by one representative of interests similar to those of the Senator who had ceased to hold office. If there was a vacancy in a seat held by a representative of the farmers I would like to see that vacancy filled by a representative of agriculture, and the same in regard to the Labour Party. But there is no guarantee in this amendment that that will be done. I do not know whether Senator Douglas has already dealt with this point, but before the matter is disposed of I would like to know whether he has in his mind any means whereby this could be secured. If so I would certainly favour the amendment, but as it stands I would have considerable reluctance to supporting it. I know that it would be a sensible arrangement provided that other things were secured, but without those I think it is fraught with possibilities of an undesirable nature, and I would like to know from the mover if he has anything in his mind that would obviate that.

There are two points involved in this amendment. The first is as to whether or not you agree with the principle of it. So far as the principle is concerned, speaking for myself I think I would have no objection to it. The second point that arises is as to how you are to carry that into effect. An examination of practically every amendment to the Constitution which has been introduced to the Oireachtas will show that each amendment to the Constitution proposed to deal with a certain specific matter, and this Bill deals with the alteration of the franchise. That is one matter. But the purpose of the amendment is to deal with another matter, to deal with the term of office of a person elected to fill a casual vacancy. So that you have present for consideration really two matters proposed in the one measure. I presume that there are certain Deputies and Senators who might subscribe to an alteration of the franchise but who might not subseribe to this, and the position then would be that they would be called upon to give a decision, weighing up what advantages would be derived from the acceptance of one of the principles and considering whether they would counteract the disadvantages that are in the other proposal. But I think it will be generally agreed that in amending the Constitution itself the more satisfactory method is to have simply one specific proposition to be dealt with and to have that voted on. Then, if other changes have to be made each of them should deal with one matter only. I would suggest, as practically all these amendments to the Constitution have been fathered by a Joint Committee of both Houses, that Senator Douglas's suggestion with regard to the term of office of a member who filled a casual vacancy should be considered by the next Joint Committee which would consider amendments to the Constitution.

In making amendments to the Constitution I agree with Senator Brown, who speaks with very much more experience than any of the rest of us as regards these matters, that they call for a most exhaustive examination of the intricacies which are inseparable from alteration of the Constitution. These two amendments are, perhaps, not as good examples of those complications as the other amendment. It so happens that elaborate machinery has been devised to deal with elections to the Seanad, and under the Seanad Electoral Act there is a provision for filling vacancies other than the ordinary twenty vacancies which will fall to be filled only every three years. There is a provision for casual vacancies, and this is a matter which naturally would have to come under review by the draftsman in amending the Constitution. So that my opinion is that we ought to adhere to the policy in dealing with one matter only in an amendment of the Constitution, and concentrate our minds on that particular phase. It would then have complications and no balancing as to whether the virtues of a particular amendment outweigh the vices of an alternative amendment that may be embodied in the same measure. In consequence I would strongly advise the Seanad not to pass the amendment.

The difficulty expressed by the President, I think he will agree, was expressed by me on the last occasion, and I fully share it. I still feel that this Bill furnished a suitable opportunity for having the principle discussed, and if the House agrees, I am quite willing not to press the amendment at this stage, but I would like to deal with a suggestion made by the President. Out of this discussion has arisen a kindred matter of very considerable importance on which a good many Senators feel strongly. That is that as this House agrees that if the present method of election for three years of one-third by proportional representation is continued it will be a matter of very considerable importance that some method should be evolved, whether by consent, by good-feeling, by cooperation or by legislation, by which groups or parties should, as far as possible, be maintained in their strength during that period. I think that that would be impossible by legislation. That is a principle which I believe is not only important but, if it could be adopted, would add greatly to good feeling among the different groups and would add to the efficiency of the House as a whole. I was going to make a suggestion that as Senator Milroy who, I think, is Chief Whip of the Government Party, which has thrown its wing over the old Progressive Association, has approved of the principle, as we know that the Labour Party has strongly approved of it, and I gather from the nods behind me that the Fianna Fáil Party has accepted it, we might have a small committee of this House to discuss the matter and see whether general agreement could be arrived at.

I would like the Senator to bear in mind how this would work out, seeing that the new electorate for the Seanad is the whole Oireachtas and not the Seanad alone.

I was going to refer to that. I was going to suggest that if Senators got together it might be possible to make some definite suggestion. On previous occasions we were not in the happy, or unhappy, position, if you like, we are in now. We had definite representatives of the two large Parties in the other House, and presumably, as certain Senators were elected by them, and expect to be re-elected, they will have some interest in them. That being the case, if we got together and made some really sensible proposal we could hope that the leaders of the Parties in the other House would be prepared to respect it. After all, two of the large Parties in the other House are in a minority. I hope they will not be always in that condition. All Parties expect some time to be in a minority, and it is to their interest to get some satisfactory solution of this. I accept what Senator O'Farrell said, that if the largest Party is simply going to ride roughshod and carry every single vacancy, it does not matter whether you put this in or continue as at present. There are six members of the Labour Party here. If by a stroke of ill fate these six were to retire, and in each case a representative of another interest was put in, you could not right that even at the triennial election. At present the matter is not satisfactory. I suggest that if I get leave to withdraw the amendment that the suggestion I made would not be futile.

I do not intend to deal with the larger question raised in the amendment regarding the suggestion made that a Committee should be set up to consider the possibility of agreement in the filling of future vacancies. If that is agreed to, I would like it to be remembered that there are some people in the House who do not belong to any Party. Of course that number will be diminishing, but as long as they are in the House I think their rights should be considered. If a Committee be appointed, I suggest that a representative of these Independent members be put on it.

As it has been suggested that a majority Party could do a great many unjust things, it might be concluded that we had done them. I must deny that.

It was not in reference to any particular Party.

It is always said that a majority is always doing something unfair. I repudiate that absolutely, and I can give absolute proof to satisfy any person, however prejudiced, that during the seven years in which the Seanad has been in existence, at no time when the question was put to me, as to what my own view was regarding whom a vacancy should belong to, did I hesitate to express a view, whether or not it was in favour of my own Party, and I believe in the majority of cases I gave it against my own Party.

In reference to the suggestion made by Senator Douglas, I wish to say——

Cathaoirleach

That is another matter. That will come up later.

Amendments withdrawn.

I move:—

Section 1. To add at the end of the section the words "Provided that should such death, resignation or disqualification occur within one calendar month prior to the conclusion of the three years' period then running, the vacancy thus created shall not be filled until the conclusion of such period and shall then form one of the vacancies to be filled pursuant to Article 32 of this Constitution."

I do not think there is anything in this amendment that could be turned or used for any particular purpose. It is entirely unlike the other amendments. Senator Brown was kind enough to say that this was a good amendment, and I am sure the President will agree. The suggestion in it is, I think, a good, common sense one. It might not be permissible under the Constitution, but if the Committee, as the President has suggested, sits again to consider amendments I would like to have this one considered.

This amendment, unfortunately, raises many more complications even than the previous ones. Under Article 32 (a) of the Constitution there is already a provision dealing with this, and the adoption of this amendment would not remove the other. Even an amendment to remove this particular Article out of the Constitution would still leave us with this extraordinary complication: As the amendment stands it says "death, resignation, or disqualification" occurring within one calendar month. The panel for the election of the 20 members falls to be made on the 13th November. That is the final date in respect of which the second of the two Houses completes the panel. An earlier date is arranged for the formation of their portion of the panel by the other House. The panel is formed on 13th November, after which no addition can be made to it. The amendment pre-supposes a vacancy arising between the 13th November and 8th December, and you would then have the extraordinary situation that the panel had been completed according to law, but according to the Constitution it would require to be reconsidered and an additional name added. So far as I can judge it would be impossible to work this amendment if it were inserted. It is in conflict, as I said, with Article 32 (a) of the Constitution, and it is further in conflict with the provisions that have been made for the formation of the panel upon which the two Houses will vote. In the light of that I think the Senator ought not to press this amendment. I believe it would involve reconsideration of some Articles of the Constitution, and I think any amendment of the Constitution ought to get very careful consideration by expert legal advisers to see that you would not have in one Article of the Constitution a direction as to how a vacancy should be filled, and in another Article of the Constitution a direction prescribing a different method of filling it.

I do not intend to press the amendment. I think what is wrong is that I put in one month instead of "two months." If I had put in two months I dare say the argument of the President would not be so strong.

Cathaoirleach

There would be still the same difficulty.

I ask leave to withdraw the amendment. I think if a vacancy occurs very close to the trionnial election it would be an extraordinary thing to fill it.

It might be possible to work for a month if the vacancy occurred prior to 13th November, but it requires a good deal of consideration.

Cathaoirleach

It is very complicated.

Amendment, by leave, withdrawn.

Cathaoirleach

Shall we take the final stage this day week?

On that point I want to raise a question that I raised on the last occasion. If this Bill becomes law before the Seanad Electoral Bill, which we have not yet seen, becomes law, there will be an interregnum during which there is no provision made for filling vacancies, and it would seem to me to be an obvious procedure that the two Bills should come into operation at the same time. If the present method of filling vacancies is abandoned by the passing of this Constitution Amendment Bill, and no other provision is made, such as is referred to in the Bill itself, our position will be one of emptiness. There is a void, and it would be my view that the House should keep this Bill from its final passing, so that if a vacancy happened to occur before the new legislative provision is made for filling it, the House will be able to fill it.

I think the practical effect, in the absence of any untoward circumstance, will be nil, but there is the possibility—I hope it is a bare possibility—that the Bill now under consideration in the Dáil will not pass, or will be held up for some reason or other. Then what is the position with regard to filling vacancies? This House will have passed the Constitution (Amendment) Bill, and the existing method for filling a vacancy is not allowable. Therefore it seems to me to be essential that the present method should continue until legislative provision is ready for a new method of filling a vacancy, and that the two Bills should pass through this House concurrently.

Much the same situation arose when there was an alteration in the franchise in connection with the triennial election. An Article of the Constitution was removed which prescribed that the whole country should be one constituency, and if a corresponding Bill had not been introduced there would have been no method of filling the 20 vacancies, and there would be no Seanad. In this case I think it would be undesirable to run the chance of having the amended Bill prescribing the method of election passed without this Bill being passed. It might so happen that the Bill prescribing the method of election by the Dáil and Seanad will not pass, but it is unlikely that there will be any undue delay in its passage. It has been introduced in the Dáil, is ready for Second Reading, and there is no reason why its passage should not be expedited. I should say that it is in the nature of an uncontroversial measure, the Constitution having already been altered, to make provision for filling a vacancy, and it is possible that in a fortnight after the passing of this measure the other measure will become law. To my mind, it would be inadvisable that the risk should be run of having an Act of the Oireachtas passed without having the Constitution amended of which the Act was a complementary part.

I desire to support Senator Johnson in this matter. The point raised on the Second Reading of the Bill, and to which I still adhere, is that we ought not to allow this Bill to pass until we have got the other Bill. Otherwise there would be no machinery for filling any vacancy that might arise. I might say that the analogy drawn by the President is not quite true with regard to the triennial election and the filling of casual vacancies. I admit that if the situation described by the President occurred there could be no triennial election until a certain fixed date in the future. It is quite clear that the interval would be sufficient to fill the hiatus. In this case it is quite difficult, because a vacancy might arise unfortunately at any time and we would not have machinery to fill that vacancy if this Bill was passed and if the other was not with us. I think the right course would be to defer the Fifth Stage of the Bill for a little time, and in the meantime we will probably get the other Bill. Once we have the other Bill in our hands it will be for us to say how soon it will pass. Once we get the other Bill I do not see any objection to the passing of the Fifth Stage of this Bill.

As it seems possible that this House might arrive at some sort of agreement, such as has been suggested, with reference to electing, as far as possible, the new member to represent the same interest as the one whose vacancy is being filled, I think it would be a good thing not to have an election in case there was a casual vacancy until that agreement was arrived at. I think it would be better, therefore, not to have an amendment such as has been proposed by Senator Johnson.

Cathaoirleach

Senator Johnson did not propose an amendment. He only proposed holding up the Final Stage.

How is it before the House?

Cathaoirleach

To arrange for the Fifth Stage.

The Senator had a motion on the paper before. Under these circumstances I think it would be better to take the Fifth Stage now.

Cathaoirleach

I have no motion before me.

No. There was one on a previous Bill.

I move that the Fifth Stage be taken this day three weeks.

Cathaoirleach

The President does not think that course desirable, inasmuch as they are framing legislation in the other House to deal with an amendment to the Constitution.

No; they are bringing in legislation to fix the method of electing Senators, which has to be passed through this House as well as the Dáil.

Cathaoirleach

It is to deal with a suggested amendment of the Constitution.

The Constitution which will exist when this Bill becomes law says: "By an election at which the candidates shall be nominated in such manner in all respects as shall be prescribed by law." There is no present law prescribing the manner in which candidates are to be nominated. Therefore, that will mean that there is no method of filling vacancies until the new Bill becomes law. We do not know what that other Bill contains; we do not know what it will contain when it comes to us. The Seanad may not approve of the method prescribed in that Bill, and may seek to alter it. Officially we do not know what is intended in regard to the method of nominating members of the Seanad. It seems to me to be an obvious safeguard that the two Bills should run together, and that the House should be aware before it loses control of filling vacancies what other method is to be adopted.

Which, of course, can be found out by reading the Bill.

It is not passed yet.

Cathaoirleach

It is clear that this Constitution (Amendment) Bill anticipates a Bill to be passed, and that the law will regulate this Constitution Bill. My feeling is that if this Bill is not passed now the justification for the other Bill does not exist.

Why is it introduced?

Cathaoirleach

In anticipation.

It was introduced in good faith.

Cathaoirleach

I have a motion that the Final Stage be taken this day three weeks.

Should not the words "or the first day thereafter" be added to that motion?

Cathaoirleach

That is implied.

It is moved on that understanding.

Question put and agreed to.
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