The Oireachtas is the name given by the Constitution to our national parliament. Article 15.2 states that it “shall consist of the President and two Houses, viz. : a House of Representatives to be called Dáil Éireann and a Senate to be called Seanad Éireann”.
Using American terms such as House of Representatives and Senate was a deliberate choice in describing a bicameral parliament. In 1937, the desire was to signal the republican nature of the Irish state, even if the state was to remain part of the Commonwealth until 1949.
But ever since the foundation of the Irish Free State in1922, there had been in Dáil Éireann a culture of firm imposition of a party whip on TDs. Dáil majorities were tight enough to lean heavily against individual TDs breaking ranks occasionally to vote with the other parliamentary side.
There were historical exceptions – but those exceptions were so rare as to prove the rule conclusively. Liam Cosgrave, as party leader, broke ranks with his own party to support the Offences Against the State Bill in 1972 and Micheál Martin pragmatically allowed his party a free vote on the abortion issue.
Leo Varadkar, as the late Noel Whelan wrote here in 2018, had described in 2013 the idea of a free vote on conscience matters as “hogwash” and his party’s whip warned against opening the “the flood gates” on free votes.
I found it very strange, therefore, that when I went to the Taoiseach’s office to discuss the progressing of the Seanad Reform Bill in early 2019, Varadkar suggested that he would offer the Bill no support but allow a free vote in the Dáil if it was moved in the Dáil. That was the intended cynical kiss of death to any prospect of reform – and it tore up solemn, clear commitments he personally had publicly made to the Seanad.
In Germany, members of the Bundestag cannot be penalised for voting in accordance with their conscience. Article 38 of the Basic Law provides that Bundestag members are “representatives of the whole people, not bound by orders and instructions and responsible only to their conscience”.
While there is de facto party discipline on mundane matters, Bundestag members cannot be penalised for following their conscience.
The rules of the Progressive Democrats uniquely had a similar conscience clause for TDs and Senators, which was availed on at least one occasion.
But the party whip in Ireland is the most severe regime among modern liberal democracies. Conscious breach of the whip, even in conscience matters, has resulted and will normally result in forfeiture of membership of a representative’s parliamentary party membership and chairmanship of parliamentary committees, together with all but vestigial rights to participate in time-limited debates, or suspension or de-selection.
The British system and the American system, for all their flaws, do not quake at the thought of governments losing votes at the hands of their own supporters who disagree with the majority in their own parties.
Whatever about the Dáil, there is little or no excuse for imposing such a rigid whip system in the Seanad. The Seanad cannot vote down a budgetary measure. It can initiate and pass Bills and it can amend Dáil Bills.
But if the Dáil does not agree with those amendments, it can, after a mere 90 days, over-ride the Seanad, and deem its Bill to have been passed by both Houses. Where that happens, there is a theoretical right for half of the Seanad and one third of the Dail to petition the President to refer the Bill to the people by referendum (a power never yet used). Even then, it requires a majority of voters consisting of at least one third of the electorate to stop a Bill from becoming law.
So, there is very little reason for the Dáil to keep the Seanad in permanent subjugation by the indefensible system of Seanad election imposed by self-serving laws enacted by the Dáil or by the use of a rigid party whip system in the Seanad.
During the “confidence and supply” FG government from 2016 to 2020, the Seanad majority was not under any rigid government whip, and the Occupied Territories Bill, although opposed by the FG government, was passed by the non-government parties and independents in the Seanad. The roof didn’t fall in. That Seanad behaved responsibly and the Dáil minority FG government functioned reasonably well.
Why should a democratically elected Irish legislator need to imperil or lose his or her entire career by standing by his or her conscience?
The forthcoming general election allows an opportunity for a newly elected cohort of allied independents to insist that any government elected with their participation and support relaxes somewhat the vise-like grip of the whip in the Houses of the Oireachtas – at least to the same extent as happens, without calamity, in other European democracies.
Such change would enhance public respect for our democracy – not diminish it further.