Precarious Bicameralism?: Senates in Ireland from the Late Middle Ages To

17 Precarious bicameralism? Senates in Ireland from the late Middle Ages to the present Muiris MacCarthaigh and Shane Martin Introduction Legislatures are the cornerstone of representative democracy, and the decision to have one (unicameral) or two (bicameral) chambers within the national legislature (or parliament) is a decision of great significance. Typically, this decision is made during the design or redesign of a country’s constitutional framework (Martin & Rasch 2013). Tsebilis and Money (1997), who note that the ‘defining character istic of bicameral legislatures is the requirement that legislation be deliberated in two distinct assemblies’, find that approximately one-third of countries around the world have a bicameral legislature. Looking at larger democracies only (with a population of at least four million people), Martin and Strøm (forthcoming) find that just under half (thirty-three of sixty-eight) countries have a bicameral legis lature. Comparatively, then, bicameralism as a form of legislative organization remains popular but not typical. In many countries, the status of senates (sometimes referred to as upper cham bers or second chambers) has been and continues to be the subject of significant attentiveness from political elites, commentators and voters. Bicameralism can be precarious. Some senates have been abolished recently (for example, in Croatia in 2001 and in Peru in 1993). Others face calls for fundamental reform, with a reduction in their powers and/or change in their mode of selection (for example, in Italy and the United Kingdom). Other countries have amended their constitutions to establish or re-establish a senate (for example, Kenya in 2010). Some senates have faced the threat of elimination but survived. This chapter explores one such case – the nature and fate of bicameralism in the Republic of Ireland. In a national vote held on 4 October 2013, voters in the Irish Republic were given the opportunity to abolish Ireland’s Senate – Seanad Éireann (here after the Seanad). The proposal to abolish the Seanad was defeated by a narrow margin, being rejected by just under 52 per cent of those voting, albeit on a turnout of less than 40 per cent of eligible voters. The uncertain position of the second parliamentary chamber in Ireland is not, however, a new phenomenon and the 2013 referendum was in keeping with the problematic if not controversial role senates have faced in Ireland over centuries. In order to set more recent events in historical relief, this chapter briefly traces the 240 Muiris MacCarthaigh and Shane Martin evolution of the upper chamber on the island of Ireland beginning with the period from the Middle Ages to pre-twentieth-century constitutional arrangements. Following this, a more detailed analysis is presented of bicameralism in post- independent Ireland until recent decades. The latter half of the chapter considers the 2013 referendum to abolish the Senate, as well as post-referendum attempts at reform of the chamber. Senates in Ireland from the fourteenth to twentieth centuries The Irish experience of bicameralism is heavily influenced by and a response to its colonial history and to contemporaneous English thinking about the design and function of political institutions. As Coakley (2013) identifies, in the fourteenth and fifteenth centuries the then Irish Parliament, like those elsewhere in Europe during the ancien régime, was in fact tricameral, with the estates of peers (Lords) and Commons conjoined to a third chamber for the ‘proctors’, or representa tives of the clergy. This latter chamber ceased in 1536 following its opposition to Reformation-inspired legislation, and clerical representation transferred to the Lords. The resulting bicameral Parliament resembled that of the emerging British state (following the 1707 Act of Union between England and Scotland) and by 1800 the Irish House of Lords was almost equal in size to the three-hundred-member Irish House of Commons, consisting of twenty-two spiritual and 225 temporal peers. However, although it mirrored Westminster in structure and operation and fol lowed the emerging party-political divisions there, the Irish parliament retained what Foster called ‘a different, querulous, and often impotent relationship vis-à-vis the apparatus of government’ (Foster 1989, p. 135). Tensions between Ireland and Britain grew during the eighteenth century and culminated in a failed rebellion in 1798 inspired by those which had recently occurred in America and France. In 1800, the Acts of Union by the Parliament of Ireland and the Parliament of Great Britain respectively resulted in the United Kingdom of Great Britain and Ireland, the end of the Irish Parliament in Dublin, and the representation of Ireland in the United Kingdom’s House of Lords by means of four clerical and twenty-eight secular peers and in the House of Commons by means of one hundred elected representatives (Mansergh 2005). During the latter half of the nineteenth century, demands grew for the restora tion of some form of autonomous government in Ireland – known as Home Rule – including institutional safeguards, such as senates, for the protection of Protestant interests in what was an overwhelming Catholic polity. The defeated Home Rule Bills of 1886 and 1893 both proposed some form of upper house, the former bill providing for 103 members; the latter, forty-eight. The electorate for these seats was envisaged as primarily comprising those with property qualifications, in the process excluding the majority Catholic population from the franchise for those chambers. The third Home Rule Bill of 1912 was passed into law by Westminster, this time with substantially revised proposals for a forty-member upper house Irish Senates, late Middle Ages to present 241 initially involving a combination of nomination and direct election (using a form of proportional representation) and later solely by means of direct election. With the onset of the First World War, the new Act was put into suspension and never implemented. Nonetheless, the idea of a bicameral domestic parliament had taken shape and was to reappear in the 1920 Government of Ireland Act, passed by Westminster in the middle of a militant Irish nationalist uprising seeking full autonomy from Westminster rule. The new Act envisaged the partition of Ireland into two entities with devolved semi-autonomous status – Northern Ireland (which came into existence) and Southern Ireland (which did not). Each jurisdiction was to have a bicameral legislature comprising a house of commons, a senate and an umbrella ‘Council of Ireland’ comprising representatives from the four chambers. The Parliament of Northern Ireland survived for a half-century, until 1972, when it was suspended and then abolished the following year. Its twenty-six member Senate had an unusual composition and electoral system, with the Lord Mayor of Belfast and the Mayor of Londonderry (i.e. local authority positions) having ex officio seats and the remaining twenty-four members being elected by the house of commons for eight-year terms. In contrast, the system devised for the sixty-four-member Senate of Southern Ireland was more complex and involved a variety of corporate interests (Coakley 2013, p. 110). They included • the lord mayors of Dublin and Cork (the two largest cities in southern Ireland) and the lord chancellor (the highest judicial office) asex officio members; • fourteen local authority representatives, elected regionally; • seventeen members nominated by the lord lieutenant (the Crown’s represent ative in Ireland); • six bishops (four Catholic and two Church of Ireland) elected by their respec tive peers; • sixteen peers, elected by the Irish peerage; • eight privy councillors, elected by the Irish Privy Council (an advisory body to the Crown). This Senate only ever met twice and was fatally undermined by the non-participation of secessionist Sinn Féin in the sister House of Commons, where it held virtually all 128 seats. But this did not mean the end of bicameralism in Ireland. Rather, a new form of senate appeared in the Anglo-Irish Treaty of December 1921, which was agreed between Irish nationalists and British constitutionalists in a bid to bring to an end the Irish War of Independence. The Senate in independent Ireland The Anglo-Irish Treaty, approved by Dáil Éireann by sixty-four votes to fifty- seven (as well as by the House of Commons of Southern Ireland to meet British constitutional requirements, though anti-Treaty members did not attend), created the Irish Free State and its associated Irish Free State constitution. Following an 242 Muiris MacCarthaigh and Shane Martin agreement that the new state would have a senate in which the Protestant popula tion would be represented, the bicameral Oireachtas was one of the central insti tutions to be created under this constitution. This was an uncontroversial decision. The size of the chamber was more controversial. The new government wanted a chamber of forty seats but following concessions to the unionist minority, Arti cle 31 provided for a sixty-seat Senate – to be called Seanad Éireann – with all members required to be at least 35 years of age. The number of seats in the lower house, Dáil Éireann, was not specified but rather left to be determined by law according to certain provisions. In its initial incarnation, the Seanad was to be directly elected for a period of twelve years, with a quarter of senators being replaced every three years – a form of staggered membership commonly seen in upper chambers (Willumsen & Goetz 2015). Like the senate which had been proposed under the 1920 Government of Ireland Act, Seanad Éireann had an explicitly representative function in that it was designed to ensure Protestant par liamentary representation in the new and overwhelmingly Catholic state (Murphy forthcoming). This Protestant minority was largely Unionist in political outlook and concerned about their place in the new political dispensation which, although still within the Commonwealth, had the ambition to further loosen its political and constitutional ties with the British Crown.

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