THE CRISIS IN DEMOCRATIC ACCOUNTABILITY

THE CRISIS IN DEMOCRATIC ACCOUNTABILITY

Michael McDowell SC, Barrister and Columnist, former Attorney-General and Tanaiste

 

Echoing the remarks of Emily O’Reilly as she departs the Irish stage to become an Ombudsman at European Community level, I strongly believe that Ireland, as a sovereign independent democratic Republic has now reached a point of crisis not merely in terms of our economy but also in terms of the workings of our democratic institutions and in the democratic process itself.

At the heart of this crisis lies the relationship between two great constitutional pillars of State, the legislature and the Executive.  In particular, the truly abject and pitiful role now played by parliament in the affairs of our country has reached a point where I believe we need a “New Deal” for representative politics as a vital necessity.  The time has come for a decisive shift in the relationship between the Executive of the IrishRepublic and our parliament, the Oireachtas.

As Emily O’Reilly pointed out, the Constitution provides that the Government should be answerable to Dáil Éireann.  That duty of accountability requires of the members of Dáil Éireann that they collectively vindicate their right to accountability in the manner envisaged by the separation of powers in a democratic republic.  The greatest problem, as I see it, in the governance of the IrishState lies in the wholly supine and cowering traditional posture of the Dáil, as an institution; the problem does not lie in Seanad Éireann and would not be addressed in any manner by the abolition
of Seanad Éireann on the 4th of October. It is hard to exaggerate the dominance of the Executive over Dáil Éireann; the proof of such dominance is everywhere to be seen.

No Dáil committee has, in my experience or memory, ever seriously challenged or even seriously embarrassed a Government minister in respect of any aspect of the discharge of the executive power of the IrishState.  If you rack your brains, no-one here will come up with an instance where an Irish minister was seriously and effectively confronted by a Dáil committee in respect of the manner in which he or she or the Government as a whole has managed or mis-managed its executive powers.

DEPLORABLE RECORD ON REFORM

Even the long established system of parliamentary questions is so stage-managed that it, too, no longer functions as a real means of exacting accountability from Government.

The Irish Times recently analysed the present Government’s performance in relation to accountability to Dáil Éireann and came up with such a black picture that the Government Chief Whip, probably much to the dismay of his masters, accepted that it was “deplorable”.  Senior ministers failed to appear in 75% of “Topical Issue” debates raised by back-bench TDs from all parties on each Dáil sitting day.  40% of such issues were dealt with by a Minister of State from an entirely different department who simply read into the record a pre-prepared script having had no personal knowledge of any kind in relation to the accountability issue being raised.

The present Government had promised that senior ministers would make themselves available to the Dáil as part of its “Reform Programme”.  That promise has been torn up.  The same “Reform Programme” promised that guillotines would be used “only in the most exceptional circumstance” to curtail Dáil debate.  Up to March of 2013, 57% of all bills passed by this Government’s supporters in the Dáil have been guillotined.

But these statistics are only straws in the wind as far as the totally dysfunctional Dáil is concerned.  Because of the abject, servile attitude of the Dáil as an institution, its committees largely concern themselves with pursuing Government agendas.  This is hardly surprising bearing in mind that for the most part the Chair and Vice-Chair of each committee is chosen by the Government, not by TDs and the Government Whip uses membership of Dáil committees as a means of enforcing discipline among Government supporting deputies.  The degree of control over Dáil Éireann exercised by Irish Government whips is unique in the European Union.

Unlike some EU member states where the primacy of conscience of members of parliament is enshrined in the constitution (Finland and Germany for example) and unlike Westminster we have recently witnessed a highly competent Minister for State on European Affairs being hounded out of office, out of her parliamentary party, out of her rooms, and threatened with being hounded out of politics altogether by de-selection, all because she chose to take a principled stand in respect of her views on the issue of abortion, a stand which was wholly consistent with the manifesto on which she sought and obtained election at the last general election.

While I personally don’t agree with many of the views expressed by Lucinda Creighton on the abortion issue, I wonder what exactly it is about the Irish system of democracy that we must exact such a draconian penalty from someone whose only fault, it appears, was that she took her own party’s general election manifesto seriously and opted to put her personal interests in second place to a heartfelt moral principle.

She wasn’t the only person who was automatically expelled from her parliamentary party in relation to that legislation but she was the most high profile and striking example of the damage being done to the democratic process by the over-dominance of the whip in Irish politics.

ELEMENTS OF A NEW DEAL

The “New Deal” of which I speak would entail the following:

  • Entirely new Standing Orders for Dáil Éireann emphasising the independence of the Dáil from Executive control.
  • A new system, to be implemented immediately, under which the Ceann Comhairle would be chosen on the basis of accepting or rejecting the result of a secret ballot among the members of Dáil Éireann.
  • Similar use of secret ballots for the election of Chair, Vice-Chair and membership of Joint Oireachtas Committees.
  • Mandatory appearances by Ministers and senior civil servants on a routine basis before independent committees so constituted.
  • Full use of all the existing Oireachtas powers in respect of compellability to ensure that committee members have adequate access to information and evidence relevant to the discharge of their functions.
  • The end of the system whereby party whips alone determine who can speak in any debate and in which order and for what length.
  • Giving a new Ceann Comhairle (to be independently chosen) real powers to deal with situations where the Government fails in parliamentary questions, Dáil committees etc to render true accountability to Dáil Éireann, and freedom to ensure that all viewpoints are heard in Dáil debates.

In short, although Dáil Éireann chooses the Taoiseach and the individual members of Government and can dismiss them if it so chooses, there must be a revolution in attitudes so as to entirely reconfigure the relationship of parliamentarians to the Government it has appointed.

Dáil Éireann must now shake off the decades of subservience and prostration, and “square up” to Government jointly and collectively, and must establish an entirely new relationship based on self-respect, equality of esteem behind the pillars of State and a clear and comprehensive understanding of the true meaning of parliamentary accountability as required by the Constitution.

Ireland needs this “New Deal” urgently.  It cannot be postponed until after the next general election.  There is nothing sacrosanct about the present Ceann Comhairle retaining his position until the next general election.  I think he should stand down now and give the Dáil a chance to install a champion of its rights in his place.

There is no need to leave the existing committees or their membership or their officers’ positions unchanged until the next general election.  There is no need to leave the Standing Orders of Dáil Éireann in their present pitiful and abject state for the next parliament to deal with.

If there is any commitment at all (and I very much doubt it) to real parliamentary reform in the minds of the present Government, all of this can take place between now and Christmas.

We need a totally different mindset from our elected TDs.  They have sought public office, carrying with it a duty to the people to exact accountability from Government, and that duty cannot be funked or shirked.

There is something fundamentally improbable about Government “leading the charge” to liberate Dáil Éireann from the baleful influence of Government control.  If Dáil Éireann really has an appetite to be freed up so that it can exact real accountability from the Executive, what is needed is an independent spontaneous demand from TDs of every party and of none that the “New Deal” be implemented.  No power in Government can halt an all-party bid by TDs to give themselves a “New Deal” by altering their Standing Orders.  All it takes is courage.  TDs acting collectively have nothing to fear but fear itself.  

CONFRONTING THE PROPERTY BUBBLE 

We all deeply regret and must share responsibility that the institutions of this State, including the Government and opposition, the Central Bank, the ESRI and many other bodies ignored the warning signs of the property bubble in the mid 2000s.  Perhaps the Government in which I served could have been persuaded to alter course if the warning signals from a few outliers in our society had been heeded and the sleep-walk towards a banking crisis had been interrupted as part of the political process.

To put it in a graphic form: would it have been such a terrible thing, during the period when I was in Government between 2002 and 2007, for a Dáil Committee on Finance to have called in Morgan Kelly, the UCD economist who was predicting a banking crisis arising out of the property bubble, so that his views could be examined by the members of Dáil Éireann in public and so that the relevant Ministers, the relevant public servants, and Central Bankers could have been examined in relation to the development of that property bubble?  Is that scenario unthinkable?

Was there ever a committee of Dáil Éireann with the standing, attitude, and expertise which could have exacted accountability from the Government of which I was a member in relation to that crisis while it was still developing?

Was it right that the Central Bank which now appears to have had a collusive rather than a regulatory relationship with the banking system could report, as it did in June 2007, that it had “stress tested” the Irish banking system in relation to a collapse in property prices and that the banking system was in robust form, was not subject to real parliamentary accountability and scrutiny at a time when different policy choices could have made a profound difference to our economic wellbeing.

I fully accept that hindsight is 20/20 vision, but it also appears to me that Dáil Éireann never challenged the seriously flawed consensus which gave rise in part to the present economic crisis and never challenged the banking practices such as 110% mortgages by calling in the dysfunctional Central Bank to defend the existence of such practices.

Recently, Enda Kenny ludicrously suggested that Seanad Éireann had not prevented the financial crisis.  A far stronger argument can be made that Dáil Éireann, because of its supine dereliction of its accountability function, must accept the blame for the failure of the Oireachtas to challenge the seeds of the present economic crisis.

THE CAST OF ONE MAN AND HIS DOG? 

It is not the function of members of Dáil Éireann, and in particular, Government back-benchers, to behave like sheep.  It is, regrettably, the case that the meek submission by Dáil Éireann to dominance by the Executive conjures up visions of the famous English TV series: “One man and his dog”.  The present deeply ingrained culture of the Dáil and the long established abdication from pursuing full accountability in that chamber has resulted, I feel, in the Dáil being rightly regarded as a rubber stamp assembly, the political eunuch of Europe.

There is very little that any individual or, indeed, any individual party, can do by itself to throw over the subjugation of Dáil Éireann by our Government and its whips.

Any “New Deal” must be based on a cross-party determination to establish once and for all the new Standing Orders, committee structures, internal election systems, and attitudes which, in combination, can along deliver true accountability by Government to parliament as envisaged by our Constitution. 

VOTERS’ CHOICES 

Voters have some part to play in this as well.  I note that we are to keep our present multi-seat PR system of election.  If that is so, there are certain consequences.  As long as we elect “single issue” or “ward healing” TDs to Dáil Éireann , whether as independents or as back-benchers, we are simply providing the woolly extras for “One Man and His Dog”.

One of the aspects of multi-seat PR of which we are very fond is our close relationship with the people we elect.  In order to survive, TDs are and must be accessible to their constituents.  Few can emulate the lofty sense of Burkian superiority that was so successfully achieved by the late John M Kelly.   But was he as successful in exacting accountability as his proponents might have suggested?  The flip side of multi-seat PR localism coin must surely be this:
“If you vote pothole, you may get economic black hole”

If TDs must always think locally to survive, we should hardly be surprised if they are willing to surrender to Government the task of thinking nationally.

THE OIREACHTAS BADLY NEEDS TALENT IN THE SEANAD 

And if we continue to have a Dáil consisting of persons elected under multi-seat PR, there is every reason to have an additional source of expertise and an additional resource—persons chosen on the basis of their contribution to the country on a national basis—such as can be delivered by a reformed Seanad Éireann.

The Quinn/Zappone bill which has passed second stage in the Seanad and which is awaiting a second stage debate in the Dáil sets out a challenging and radically different agenda for Seanad reform which, in my view, it all the more urgent to make the Dáil really work effectively.

If we had people elected nationally on their individual record as trade unionists, business people, economists and, yes, intellectuals, educators, leading figures in voluntary social movements and the like, as would be achieved in the context of a reformed Seanad such as that which is now proposed, such people would hugely enhance the expertise and breadth of knowledge which Joint Oireachtas Committees would possess to discharge their constitutional parliamentary functions in relation to legislation and matters of public policy.

It is an absurd suggestion, but one which will be made in the near future, that in order to reform the Dáil, you have to abolish the Seanad.  Reform of the Dáil is an urgent priority and a reformed Seanad will enhance rather than diminish the status of a reformed Dáil.

IGNORING WISE VOICES 

How many wise voices must we ignore in this debate?  Garret FitzGerald persuaded me that abolition was wrong; he wrote about the need to retain the Seanad but to reform its electoral law in 2003!

In his book, Reflections on the Irish State 2003, Garret FitzGerald wrote: 

“The reasons for the better legislative performance by the Seanad in relation to some bills are complex.  But, one reason is that, despite its largely political composition, the atmosphere in the Seanad is less partisan than the Dáil, and perhaps senators, just because they have less work to do than members of the Dáil, are sometimes inclined to do that work more thoroughly.  And, if a Seanad composed as is the Seanad today can be useful in this way – as I believe it is – then one elected in a less political way might be even more useful.”

Mary Robinson spoke about the vital role of the Seanad in the Oireachtas when she was a member.  She said “I believe that [the Senate legislative role] is vitally important for the future.  It is a safeguard to our democratic institutions, to human rights and to civil liberties in Ireland, and it is a very important one.”

TK Whitaker, who served in the Seanad, has recently called for Seanad reform rather than abolition.  He stated along with Mary O’Rourke, Brid Rogers, Maurice Hayes, John A Murphy and Mary Henry:

“As former members of Seanad Éireann, we would like to express our shared view that rather than amend the Constitution to abolish the Seanad, it would be better to reform the Seanad’s electoral law to empower citizens to become more directly involved, to continue and strengthen the presence in the Irish parliamentary process of voices and viewpoints that might not be heard if future parliamentarians were only to be elected to a single chamber solely on the basis of the present system of geographical multi-seat Dáil constituencies.

We believe that the Seanad under the existing Constitution can have a valuable democratic and constitutional role as a revising chamber, and as a potential check and balance on the powers of a transient Dáil majority in many areas, such as safeguarding the independence of the President and judiciary, and not least under Article 29 in relation to protecting the state’s sovereignty in respect of European Union treaty development, where the Seanad now has a veto.”

The Taoiseach should bear in mind that Michael Collins stoutly defended a bicameral parliament in April, 1922, and that John A Costello, said in 1937: “In our view, a Second Chamber is essential … The object is to give the Government the benefit of people of practical knowledge and experience, and with a considerable degree of independence when dealing with legislative proposals which will emanate from the Dáil.”

THE GOVERNMENT HAS ALREADY LOST THE COSTS ARGUMENT

The Clerk of the Dáil, Kieran Coughlan, has publicly testified to a recent Oireachtas hearing that the real gross annual direct cost of the current Seanad is €9.2m.

On that basis, net of taxes, USC and other levies, the true annual abolition saving would be €6.5m.  This amounts to an annual cost per head of the population of about one euro, fifty-eight cent, less than, say, €1.60. Even that cost could be reduced in a reformed Seanad by halving future Senator’s pay, expenses and allowances, as and from today.

I argue strongly that the important constitutional roles of the Seanad in revising and improving legislation, protecting the President and judiciary from removal by the Dáil, and preventing loss of our tax veto and other important legal and constitutional rights to the EU under Article 29 of the Constitution is worth more than €1.60 per person per year.

The referendum itself will cost €14m but there will be no “saving” at all until abolition takes place in 2016!  In the intervening three years, we will have paid the Government’s Special Advisors €10.2m in salaries alone.  And we will have given the political parties €42m in taxpayers’ money (€14m per year)!

DÁIL REFORM DOES NOT DEPEND ON SEANAD ABOLITION

Dáil reform does not need Seanad abolition and will not be helped by Seanad abolition in any way. The referendum has nothing to do with Dáil reform. There is absolutely nothing stopping Dáil Éireann from reforming itself today; indeed it could have done so at any point since 2011 but has not been done.  The Government already attempted unsuccessfully to confuse the two issues by proposing to insert a hare-brained Dáil Super-Committee into their referendum proposal but it was “laughed out” as completely undemocratic and foolish.

Even if Dáil Éireann is reformed, sooner or later, the fact remains that the Oireachtas is nowhere near fulfilling its duties in relation to the post Lisbon Treaty EU legislative function for national parliaments.  No amount of Dáil reform will persuade TDs to engage in national and international scrutiny when an election is looming and when their seats are in peril.  It would be naïve to think that TDs elected under our present system will ever prioritise legislative scrutiny and EU scrutiny functions especially when hard work on those issues goes largely ignored in the media and consequently in the public mind.  If our Oireachtas is to discharge its legislative and accountability functions properly, Dáil Éireann, once reformed, will badly need the assistance of a reformed Seanad.

CHALLENGE TO THE TAOISEACH

I want to end by challenging the Taoiseach to undertake to the Irish people that if the people reject the Abolition Referendum on the 4th of October, he will, without further delay, move to implement the type of reforms set out in the Quinn/Zappone Bill which his Minister for Agriculture, Simon Coveney, has already praised as a good basis for reform of the Seanad.

Once before the people voted for Seanad reform in respect of the university constituencies but their vote at a referendum was ignored by successive governments.  The outcome of this referendum cannot be permitted to be “more of the same”.  The choice between an abolished Seanad or an unreformed Seanad is a false choice.  The Quinn/Zappone Bill which was not opposed by the Government at Second Stage offers a credible legislative response to deliver on the peoples’ aspirations for real political reform.

In particular, the people are entitled from anyone who pretends to be a political reformer to be assured that if they vote to retain the Seanad as a vital part of our constitutional system of checks and balances, they will be given the reforms which the Seanad so much needs and deserves to ensure that it will play a vital role in rebuilding the fortunes and hopes of the Irish people.

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