INSTITUTIONAL REFORM: NECESSITY OR DISTRACTION?

INSTITUTIONAL REFORM: NECESSITY OR DISTRACTION?

John Coakley, School of Politics and International Relations UCD

INTRODUCTION

Since the onset of the economic crisis, and in particular in the run-up to the general election of 2011 and to the formation of the new government, a relatively clearly defined “reform agenda” has been discussed at some length. Designed to tackle perceived gaps in the state’s policy making and implementation structures, to hasten the process of restoration of political and economic sovereignty and to ensure that a similar collapse will not recur, this agenda has identified specific institutions that are seen as being in need of fundamental overhaul.

The present paper accepts the argument that institutional reform is desirable, but argues that this needs to be targeted carefully on the basis of available evidence regarding the functionality or dysfunctionality of specific state institutions. In particular, it warns that however extensive the degree of institutional change, we need to bear in mind the reality that institutions are operated by human beings with inevitable limitations and ingrained cultural priorities. We should not expect too much, therefore, from institutional reform alone; political cultural change is at least as important.

The paper begins by outlining this dilemma – the interaction between institutional reform and cultural evolution – and goes on to explore the extent to which cultural values have implications for the working of institutions in three areas, selected to illustrate three types of debate (respectively, a very old one, an entirely new one, and an issue that has received only limited public exposure). The first is the hoary argument about the adequacy of the Irish electoral system, the single transferable vote system of proportional representation, and the allegation that it promotes inappropriate priorities among elected representatives. The second is the barely noticed, eccentric practice of constituency boundary revision, which sets Ireland quite apart from other countries that use proportional representation. The third is the process by which ministers are selected for high office, another area in which Ireland has a unique and unnecessarily restrictive track record.

THE REFORM AGENDA

The debate on institutional reform has focused on a number of quite specific alleged defects in the Irish constitution. By implication, the criticisms include the propositions that a second chamber is unnecessary (hence, the Seanad should be abolished), that the Dáil is needlessly large (so that it should be reduced in size) and that the electoral system promotes “clientelist” and “localist” behaviour (which could be discouraged by abolishing the single transferable vote system).[1] But there are other areas of potential institutional change that are rarely mentioned. Four further examples may be selected out of the many that could be cited; each is marked by the fact that Ireland departs decisively from the international norm, yet this deviant status has gone largely unobserved:

• • In proportional representation systems, constituency boundaries normally follow those of local government units and are very stable over time; but in Ireland boundaries are revised frequently, revisions commonly ignore administrative boundaries, and the resulting constituencies are unstable and dogged by controversy.
• • In proportional representation systems, casual vacancies in parliament are normally filled by giving particular weight to the party which suffers the vacancy (through use of substitute candidates, for example, or re-count of ballot papers); but Ireland uses by-elections to achieve this, even though they violate the principle of proportional representation and are not required by the constitution.[2]
• • Directly elected presidents normally enjoy considerable authority by virtue of their election by popular vote, and even the weakest of them can exercise political discretion in such circumstances as the aftermath of indecisive elections; there is a peculiar but widespread view that the President of Ireland possesses no such discretion, since it is not specifically provided for in the constitution.
• • In continental Europe, government ministers, though answerable to parliament, are not themselves required to be parliamentarians, and ministers may even be prohibited from being members of parliament; in Ireland, there is a widely shared assumption that ministers must be parliamentarians.

It is not possible here to examine all of these respects in which Irish institutions depart from the European norm, though some of them are considered later. In any case, the suggestion that deficiencies in the Irish political system might be corrected by reforming institutional arrangements needs to be examined carefully. It is true that institutional change can, in the longer term, encourage cultural adjustment, and that the incentive structure can be amended to promote new patterns of behaviour. But we should not overlook the painfully slow manner in which cultural values are normally transformed; and analysts of Irish political culture have often been harshly critical of certain of its fundamental values. Fintan O’Toole, for example, offered a plausible and eloquent analysis of the cultural roots of the Irish economic and political collapse:

Large chunks of classic democracy were missing – the shift from religious authority to public and civic morality; the idea that the state should operate objectively and impersonally rather than as a private network of mutual obligations; the notion of the law as a universal and neutral check on everyone’s behaviour, whatever their status; the belief in an independent parliament that exists to legislate rather than to service clients and to make government accountable rather than to keep it in place at all costs. [3]

This persuasive interpretation of a political culture challenged by the pace of socio-economic change has alarming implications for the capacity of institutional reform to deliver significant change. If voters and leaders lack a strong sense of civic morality, if those interacting with and managing the state are characterised more by a sense of entitlement than a spirit of commitment, if informal networks overshadow formal procedures in decision making, and if political leaders are motivated more strongly by clinging to power rather than using power to achieve positive ends, then there are severe limits to what may be achieved by institutional reform. But this does not render such reform pointless.

THE ELECTORAL SYSTEM

The first topic to be considered further here is the electoral system – the issue that has probably attracted more attention over the years than all of the other topics on the reform agenda. Imported without fuss into the 1922 constitution from the Government of Ireland Act, 1920, the single transferable vote system of proportional representation was incorporated in the new constitution in 1937 and survived two efforts to abolish it by constitutional amendment, in 1959 and 1968. Notwithstanding the level of apparent popular support for this system, it has remained a matter of debate among politicians, and was subjected to renewed attack in the context of Ireland’s economic and political crises. Critics of the system allege, in effect, that it is too democratic. The arguments of the 1950s and 1960s were directed at its proportionality – by translating voters’ preferences relatively fairly into Dáil seats, it was alleged, it failed to give an appropriate advantage to big parties of a kind that is normal in the British plurality system, thus typically resulting in no party having an overall Dáil majority. The more recent arguments allege that the system in effect brings Dáil deputies into too close a degree of contact with their voters, and promotes a level of competition between deputies within a constituency that results in all vying for support by doing favours for their constituents. Consequently, the criticism continues, deputies are encouraged to devote less attention to their primary role as legislators.

The merits of the Irish electoral system are too big a topic to be addressed comprehensively here, and in any case have been discussed extensively in the MacGill summer school and elsewhere in previous years. But it should be pointed out that extensive research by the main authority in the area, Michael Gallagher, suggests that under other electoral systems, too, parliamentarians tend to have heavy constituency workloads.[4] As in the operation of other Irish institutions, it is likely that the relationship between Dáil deputies and their constituents is a function not just of the electoral system but also of deeply ingrained political cultural attitudes, and this paper will confine itself simply to illustrating this point.

Quite apart from TDs’ diaries, the Dáil debates record an extraordinarily high level of activism by deputies on behalf of their constituents and constituencies. Thousands of examples could be given, but one, chosen almost at random, should be sufficient to convey the flavour; it concerns the efforts of Timothy O’Connor, Fianna Fáil TD for Kerry South, 1961-81, to secure improvements to a harbour in his constituency:

Mr. O’CONNOR: asked the Minister for Finance when the boring survey will be carried out in Cahirciveen harbour for the general improvement of berthing facilities at the pier in Cahirciveen which are urgently needed as two new trawlers will be working out of this harbour before the end of the year and two next year.
PARLIAMENTARY SECRETARY TO THE MINISTER FOR FINANCE (Mr. J. GIBBONS): The survey will be made this summer. [5]

We need not confine ourselves to speculation as to how parliamentarians would relate to their constituents were the British plurality system to be reintroduced. This system operated in single-member constituencies in Ireland from 1885 to 1918, offering us an abundance of evidence on the behaviour of MPs with secure seats (incumbent Irish nationalist MPs could typically see off all electoral challenges without difficulty). If we go back 100 years to 1912, to the time when the momentous third home rule bill was going through the House of Commons, we will find the parliamentary record showing that the “mother of parliaments” was able also to consider less weighty matters. The MP for South Kerry, John Pius Boland (a Dubliner famous for his achievements during the 1896 Olympics, when he won two gold medals in tennis), found time to avert his gaze from the national question and the Ulster problem – the truly pressing issues of that time – to more local matters:

Mr. BOLAND: asked the Chief Secretary whether he is aware that, in spite of repeated representations, the Congested Districts Board has not yet undertaken the construction of a boatslip at Caherciveen; and whether steps will be taken to complete it before the autumn fishing season opens?
Mr. BIRRELL: The Congested Districts Board have decided upon not undertaking the construction of a boatslip at Cahirciveen at present, as, in their opinion, other more important works in the county Kerry require earlier attention. [6]

This example could, of course, be multiplied; the pages of Hansard are full of such references. It is hard to resist the conclusion that, regardless of electoral law, Irish constituents expect their elected representatives to be particularly vigilant in respect of all local matters, and that their representatives respond accordingly.

CONSTITUENCY BOUNDARY REVISION

The second matter to be considered here is one that flares up from time to time, particularly when change is proposed: the system for revising Dáil constituency boundaries.[7] European countries that use proportional representation as their electoral system have a simple mechanism for distributing seats on a territorial basis: they use existing administrative divisions, such as counties or provinces, allocating seats to them in proportion to their population. With a view to maintaining something close to a uniform population-deputy ratio, a mathematical formula is used after each population census to redistribute seats between constituencies; constituency boundaries themselves remain unchanged.

It looked as if this was the kind of system that would be created in Ireland by the Electoral Act of 1923. The general principle was that each county became a constituency, except where counties were considered too large (Cork was divided into three constituencies, and Mayo into two) or too small (as in the case of Leitrim, Monaghan, Longford, Laois and Carlow, each of which was merged with an adjacent county to produce a double-county constituency). Special arrangements of course had to be made for Dublin.

Subsequent electoral acts, however, from 1935 onwards, rather than redistributing seats between these constituencies, began the practice of tinkering with constituency boundaries to adjust the population and not just the number of TDs in each. The maximum number of members per constituency was also reduced – from nine in 1923, to seven in 1935, and to five in 1947, the level at which it has subsequently remained. A High Court judgement in 1961 aggravated the position. It declared the 1959 electoral act unconstitutional on the grounds that there were “substantial departures from the stipulated ratio of members to population, causing grave inequalities of parliamentary representation”, and that “there are no relevant circumstances to justify these departures”.[8] While the judgement represented an effort to ensure electoral fairness, it had an unfortunate consequence. By insisting on the need to vindicate the principle that the population- deputy ratio should “as far as it is practicable” (in the words of article 16.2 of the constitution) be the same from constituency to constituency, it provided cover for the Minister for Local Government to micro-manage boundaries in such as way as to maximise party advantage. It ushered in an era of bitter debate on constituency boundary revision bills, one that was to end only with the establishment of an independent commission in 1979.

While independent boundary commissions brought charges of electoral gerrymandering to an end, county boundaries continued to be apparently arbitrarily breached, resulting in understandable dissatisfaction on the part of citizens and unease on the part of TDs. Given their terms of reference, the commissions felt constrained to define boundaries by reference to small, unrecognisable territorial divisions. The result was arithmetical fairness, but often incomprehensible boundaries. Thus in 2012, for example, the commission felt obliged to remove certain electoral divisions from the southern part of Mayo and transfer them to West Galway, even though the population of these areas identify strongly with Mayo, and see themselves as having little in common with, say, Clifden and Carraroe – towns with which they will shortly share a constituency and five TDs. This deviation from established boundaries was described as follows:

The county of Mayo, except the part thereof which is comprised in the constituency of Galway West [which includes:] the electoral divisions of: Cong, Ballinrobe, Dalgan, Houndswood, Kilcommon, Kilmaine, Neale, Shrule, in the former Rural District of Ballinrobe; Garrymore in the former Rural District of Claremorris.[9]

The anxiety of TDs at the unpredictability of their constituency boundaries and the resentment of voters at their transfer into the “wrong” county could easily have been avoided. The manner in which this process might have been carried out since 1923 is illustrated in the accompanying maps. Map 1 shows boundaries outside Dublin similar to those in the 1923 act (but without dividing Mayo, and with Cork county divided into its two long-established ridings). Assuming a Dáil size of 140, later rising to its current level of 166, and then dropping to 158, the size currently proposed, seats are re-allocated by constituency after each population census, using the Sainte-Laguë highest average formula. It is assumed that no more than nine seats should be allocated to any one constituency.

A computation of notional reallocation of seats after each census suggests that this system could work. For reasons of space, only one later outcome can be shown here. Map 2 illustrates what the position would have been in 2012 had this system been retained. It is striking that, outside Dublin, only one change in constituency boundaries would have been needed since 1923: by 1971, the population of Roscommon would have been too low to return three TDs, so it has been merged here with Leitrim-Sligo to produce a new “East Connacht” constituency.

Of course, Dublin would have presented particular difficulties. Its three original constituencies (Dublin County, Dublin North and Dublin South) expanded rapidly in population, and would have had to be further divided in due course to prevent any constituency having more than nine TDs. Any effort to reform the current system would be likely to encounter opposition from established political interests, since it is now apparently widely accepted that constituencies must not exceed five members in size. This is, however, a view that it is hard to defend; six-member constituencies are now the norm in Northern Ireland, and in 1982 one constituency, Antrim South, returned 10 members to the Assembly.

A more serious problem is posed by constitutional considerations. Article 16.2 provides that “the Oireachtas shall revise the constituencies at least once in every twelve years, with due regard to changes in distribution of the population”, but this does not impose any specific requirement to adjust boundaries. Maintaining an even population-deputy ratio would, however, pose a bigger challenge. The report of the boundary commission in 2012 recommended constituencies where this ratio ranged from 4.9% above the national average to 4.9% below this (the 2004 commission allowed a much wider variation, from 7.9% above to 7.5% below). As proposed here, the 2012 range would be from 15.7% above the national average to 8.2% below, a much wider range. Ultimately, it is the courts that would adjudicate on the constitutionality of such an arrangement; it is thus possible that the suggestion made here might require constitutional change, but this is by no means certain.

SELECTION OF GOVERNMENT MINISTERS

A third area where Ireland departs significantly from international norms is the process of ministerial appointment.[10] Here, the constitution seeks to implement a narrow interpretation of the British model.

The relevant articles are the following:

28.1. The Government shall consist of not less than seven and not more than fifteen members who shall be appointed by the President in accordance with the provisions of this Constitution.
28.7.1° The Taoiseach, the Tánaiste and the member of the Government who is in charge of the Department of Finance must be members of Dáil Éireann.
28.7.2° The other members of the Government must be members of Dáil Éireann or Seanad Éireann, but not more than two may be members of Seanad Éireann.

In the United Kingdom, each government includes at least one member of the House of Lords, and that chamber is commonly used to bring into the cabinet individuals with particular qualities of which the prime minister wishes to avail. To cite a well-known example, in 2008 Gordon Brown appointed Peter Mandelson (at the time removed from British politics as an EU commissioner) to his government by making him a life peer, and thus a member of the House of Lords.

In Ireland, however, this route to ministerial office has been sparingly used – only twice, indeed, since the constitution was adopted in 1937. The first occasion was the appointment of Sean Moylan, a defeated Fianna Fáil candidate in the 1957 general election, to the post of Minister for Agriculture via the Seanad route. The second occasion was the appointment of James Dooge, who had retired from active political life, as Minister for Foreign Affairs in 1981, also through the mechanism of appointing him as one of the Taoiseach’s eleven senators. In practice, any Taoiseach is under powerful pressure to reward talented members of the Dáil party by offering them ministerial posts; any deviation from this principle, by offering prized positions to “outsiders”, is likely to be resented within the party and to cause trouble for the Taoiseach.

Elsewhere, though, the practice of appointing non-parliamentarians as ministers is well established. Indeed, Ireland falls into one unusual pattern among parliamentary democracies; it may be seen as one of three broad approaches, which may be described as follows:

• • Ministers are required to be parliamentarians, though not necessarily members of the lower house (examples: Ireland, United Kingdom)
• • Ministers may be parliamentarians, but are not required to be; they may be selected from outside parliament, perhaps as “expert” ministers (examples: Germany, Italy)
• • Ministers may not be parliamentarians; if a member of parliament is appointed to government, he or she must resign from parliament (examples: France, Netherlands).

It should be stressed that in each of these patterns ministers are not just permitted to attend parliament (though not to vote there, unless they are members); they are required to attend there, and, indeed, are ultimately answerable to parliament for their actions and policies. Democratic accountability is secured not by virtue of the fact that a minister has been elected by his or her constituents, but by virtue of accountability to the national parliament. It is not the votes of the electorate in one constituency that confer democratic legitimacy, in other words, but the votes of members of the national parliament. Of course, in presidential systems, such as that of the United States, ministers are not answerable to parliament in the same way, and they owe their position to the confidence vested in them by a directly-elected president.

There are two main advantages associated with the non-parliamentary route to ministerial office. First, it greatly extends the range of available candidates for ministerial office, so that a prime minister can appoint people with special skills and aptitude for specific posts (and, indeed, it is to be presumed that the skills required in an effective minister would not be the same as those associated with being a competent parliamentarian). Second, it significantly strengthens parliament, which is no longer dominated by a single, powerful committee (the cabinet), since ministers can no longer assert the same degree of influence within it. It is possible to envisage a number of approaches to introducing such a system in Ireland.

• • More use could be made of the appointment of ministers from the Seanad, using the Taoiseach’s power of appointment there to bring in “outside” experts, without constitutional change
• • The constitution could be amended to permit the appointment of non-parliamentarians (who would not be required to be members of either Dáil or Seanad)
• • The constitution could be amended to require the appointment of ministers from outside the Dáil, by establishing some kind of quota for non-parliamentarians
• • The constitution could be amended to prohibit the dual parliamentary-ministerial mandate, requiring any parliamentarian appointed a minister to resign his or her parliamentary seat.

There is no reason to assume that the first of these options would work, for reasons already mentioned: a typical Taoiseach would be reluctant to confront the wrath of the Dáil party by “giving away” plum ministerial positions to “outsiders”. This would be likely also to undermine the effectiveness of the second option. The third option, requiring the appointment of non-parliamentarians, might work, but would be artificial. The last system has been proven to work in other societies, and some countries (such as Sweden, Portugal and Belgium) have moved in this direction, requiring government ministers to resign their parliamentary seats. Such resignations need not trigger a flurry of by-elections; as mentioned above, other mechanisms for filling casual vacancies on a temporary or long-term basis could be devised.

CONCLUSION

There is, then, a case for selective constitutional reform with a view to enhancing the quality of Irish democratic institutions. But it would be a mistake to expect too much from such reform. Deeply ingrained cultural values are likely to colour the manner in which any new arrangements are put into operation, and the need to address the issues arising from these values should be stressed. The real issue is the profound one of reshaping values – a long-term process that implies investment in elite education and training, as well as in education of the public.

In the three more specific sample areas considered here, caution would be wise. It is unlikely that electoral reform would deliver what is promised of it, though debate in this area has already acquired momentum, and it is proposed to discuss the matter further in the Constitutional Convention. A less radical reform that might bring benefits would be replacing the work of the constituency commission by the calculations of an official from the Central Statistics Office, in the context of fixed Dáil constituency boundaries (though such a change would provoke strong political opposition). The ministerial recruitment process could also be broadened, even within the context of the current constitution; but it is likely that unless “outside” ministerial appointments were required (and not merely permitted) there would be little change in the current position. Political institutions, however wisely designed, will always be shaped by the values of the individuals who operate them.

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REFERENCES