Opinion polls suggest that both the abolition of the Seanad and the creation of the Court of Appeal will be approved by the citizens in the double-referendum on October 4th next. While there is a widely held view that the Seanad is undemocratic in its election-process and its party-political appointments and that as a second parliamentary chamber it is ineffectual, and that long delays in appeals to the Supreme Court and the inefficient use of that court for many appeals needs to be corrected, there are valid arguments against approving either proposal.
The faults attributed to the Seanad are valid, but they can be corrected. One of the most oft-quoted objections refers to the undemocratic selection of senators. There is no reason, other than fear on the part of the permanent parties of government, Fine Gael, Labour and Fianna Fáil, of a loss of control, why all members of the Seanad could not be elected by the citizens as befits a democracy, and not just by elite groups or at the whim of the Taoiseach, as at present.
The manner of electing the senators to a reformed Seanad is up for debate, whether using current or special Seanad constituencies or a list system or a combination of both. By opening up the selection to the electorate at large we would have a second house that could be truly representative of the people. The argument that it is necessary to stack the Seanad with ‘experts’ is a specious one, since ‘experts’ have led us to disaster, including the loss of sovereignty, massive debts, widespread scandals across a range of institutions, and so on. In any case, expert opinion is widely available, for free or for a fee.
It is possible to give the Seanad powers that would stop short of the power to bring down the government, if that is a concern. Its function could be as a debating chamber with a different structure and dynamic to the Dáil, and its powers could include generating and introducing legislation, and offering amendments to government proposals for further consideration by the Dáil, and could also include the power to hold Seanad hearings with the authority to summon relevant government ministers, civil servants, and other powerful people outside parliament or public service, for questioning on legislation, or matters of grave public concern, or on contentious issues, while also providing a means by which citizens could address parliament on issues of concern or on the effects of policy proposals on them or their communities. It could also have the power to delay legislation for a reasonable period to prevent it being ramrodded through by using the party whip system, as at present.
All political power at present rests with the government, and in effect that means with the executive branch – the cabinet. In fact that is further refined in the case of the present government in which Enda Kenny, Eamon Gilmore, Brendan Howlin and Michael Noonan act as a super-cabinet – they might be called the Four Horsemen of the Austerity Apocalypse. Government backbenchers are lobby fodder. Given the massive majority the government enjoys over the opposition, there is no possibility of the government being challenged in any effective way, including the possibility of bringing down the government, which should always exist as an option in a democracy.
Far from abolishing the Seanad, there is a pressing need to recreate it as a truly democratic second chamber which applies checks and balances to the Dáil and provides a forum for other voices to come through. And that is in reality the most immediate reform of the political system that is required. Far from being a representative democracy, the Dáil as constituted fails to include in its makeup representatives that spring directly from, for instance, the large working class constituency, whose interests are mediated through political parties dominated by lawyers, teachers and other professionals belonging to the middle-class and the bourgeoisie. Other groups are un/under/mis-represented at present. Where are the 51% of the population – women – in parliament, or the factory workers or carers or unemployed or under-employed, or the families of those forced out of the country to find work? Either non-existent, or very few and far between.
The second proposal for October 4th is the creation of a Court of Appeal between the High Court and the Supreme Court. The principal argument in favour of the creation of this new court is to speed up the hearing of appeals, currently creating a four-year back log for the Supreme Court.
Creating this new court allows very necessary overhauling of the way both the court and legal systems work, or in fact, often don’t work, to be kicked to touch. The same inefficiencies, the same ridiculous costs and the same lack of access to the higher courts for the great majority of citizens will still exist.
That lack of access to the courts cuts at one of the pillars of democracy, creating a dreadfully unequal situation for many, either through the delaying of justice or the denial of justice.
The problem is not the absence of another layer of courts but the practices that prevail now and will prevail with the new court, if passed. Any citizen who takes the time to visit the Four Courts, or as they are known by many, the Four Goldmines, and who goes into the various courts, Circuit, High and Supreme, will observe bewigged and gowned barristers playing out games more suitable to secondary school debating. Far from being wise and learned, judges very often indulge the game-playing and posturing by opposing teams of scandalously well-paid barristers. It is far from edifying to observe the ludicrously expensive pantomimes in progress.
It is also evident at times that there is a bias or a favouritism towards a particular barrister or team on the part of a judge, hardly surprising given the manner of selecting judges, with many having had previous lives when barristers or less often solicitors as activists for one of the three parties of permanent government, Fianna Fáil, Fine Gael and Labour, and no doubt enjoying relationships with other barristers from their past whether they are based on legal collaboration, or party affiliation, or old school connection, or…whatever.
The fact is that the legal profession, at the top, is drawn from far too small a pool of relatively wealthy people, often from well-known legal families and from graduates of a small number of private schools specialising in preparing students for the ‘elite’ professions, especially medicine and law. All of the dangers of incestuous professional relationships exist because of the structures around entry into, and advancement in, the legal profession. There should be no place for this in a system of laws and courts in a genuine democracy, let alone a democratic republic.
These and other problems, including the scandal of massive fees charged by elite barristers and solicitors, will not be removed by the creation of another layer to the courts, but will only exacerbate them. Capping legal fees, measures to prevent ‘elite’ lawyers from monopolising too many cases, changing the way judges consider evidence to the inclusion of a book of evidence from each side with only relevant arguments taking up court time, and the appointment of a Courts Ombudsman acting on behalf of citizens where there are complaints of unfairness in the way cases are heard or adjudicated by judges, would be far more productive in making the courts more efficient and fair, and more democratic, as they should be.
These two proposals, one to abolish the Seanad, the other to create an extra tier to the courts system, are trick-of-the-loop proposals from political parties with no evident interest, either now or in the past, in genuine reform of either politics or the law. Both proposals should be thrown back in their faces, and instead citizens should insist on proper reforms that will lead to changes designed to improve the workings of both parliament and the courts to the benefit of the citizens.
The elephant in the room, of course, is the constitution itself, a bad constitution in very many respects, outdated, still sectarian, still misogynistic, still favouring property over the rights of citizens, still providing a hiding place for politicians wishing to preserve a corrupt status quo, still pretending to citizens that since they have a constitution they are sovereign. They are not.
The pretence of ‘reforming the constitution’ is carried on under the noses of an unobservant and disengaged citizenry, another trick-of-the-loop manoeuvre by a hegemonic political class. Real reform of the constitution would start with a blank sheet and the aim of creating a state and a society in which the citizen was paramount and sovereign, with no citizen above or below any other.
We are capable of doing just such a task. After all, the citizens of the Bolivarian Republic of Venezuela have achieved that, in a short period of time, and we are no less capable than the Venezuelan people. While our 1937 Constitution is meaningless to most Irish citizens, theirs is central to their lives, owned and read by most Venezuelan citizens, and employed by them – across the social classes – to vindicate their civil, legal and human rights.
Aquiescence in our own fooling by three-card-trick chancers digs us into a deeper hole. We should use that powerful word ‘no’ twice on October 4th – No! and No!
And then insist on real change, and no less.