I move:
That consideration of the Second Stage of the Constitution (Amendment No. 24) Bill, 1935, be postponed until a later date to enable the following Message to be sent to the Dáil:—
"That, inasmuch as the Seanad is willing to pass the Constitution (Amendment No. 24) Bill, 1935, provided that an amendment is inserted therein to the effect that the Bill shall not come into operation until a Constitution Amendment Bill has been passed by the Dáil establishing a Second Chamber in substitution for Seanad Eireann, the Seanad proposes a conference between members representing both Houses of the Oireachtas for the purpose of considering an amendment of the character suggested and such other amendments providing for the period of transition or otherwise as may be found desirable:
That the Seanad be represented at such conference by seven Senators."
That a Message be sent to the Dáil accordingly.
I move this motion in the belief that it will enable this House to express its attitude towards the situation created by the return from the Dáil under Article 38A of the Constitution (Amendment No. 24) Bill in a more satisfactory manner than by a direct vote for or against the Second Stage; and because I feel that my proposals represent the real opinion, apart from Party considerations, of a large majority of the members of the Seanad.
Briefly stated, my proposal is that we should make it clear to the Dáil that, while we cannot acquiesce in any way in the establishment of Single Chamber Government and will oppose such establishment by every constitutional means in our power, we are nevertheless prepared to agree to the abolition of this House as at present constituted. If the Dáil will agree to amendments to this Bill ensuring that a new Second Chamber will be established in place of the Seanad which it is proposed to abolish, I propose that we should pass the Bill as thus amended, and not only that we should do so but that we should co-operate with the Dáil in the enactment of any legislation that may be found necessary or desirable with the object of enabling the change-over to be carried out as smoothly and as easily as possible.
The President's arguments during the successive stages of the Bill in the Dáil against Second Chambers in general and ours in particular were faithfully dealt with when the Bill reached the Seanad. This is now a matter of history, and I do not now propose to go back upon it. I myself on that occasion, and also when the Bill to reduce our power of suspension was going through this House, endeavoured to set out at length, and in some detail, the work done by the Seanad and to show the falsity of the charges made against it and against its members. There is nothing which I then said which I have reason to withdraw or to alter. I am confident that the impartial investigation of the Seanad's record, which I hope will some day be undertaken by some historian, will demonstrate that its useful work was very greatly in excess of its errors, from which, like all human institutions, it cannot claim to be immune. But I have no hope whatever that the stream of calumny which has been, and is being, directed against us will soon abate, or that any argument will alter the determination of the majority in the Dáil to abolish the present Seanad. I therefore believe that our energies should be directed towards ensuring that this Seanad shall not be removed from the Constitution until another and better Second Chamber has been established to take its place or, at least, until there have been inserted in that instrument safeguards for the liberty and sovereignty of the people such as are to be found elsewhere.
I should like to make it clear at the outset that I and those with whom I am associated have never rigidly taken our stand on the maintenance of the Seanad as it is at present constituted. While not admitting in any way that this House has been ineffective or has failed in its duty in the past, we have repeatedly stated that we would welcome any change which would add to its usefulness, and I feel certain that there is not one member of the group to which I belong who would not gladly retire if by so doing he could bring about a new Seanad which would be representative in character and free from Party control. There are still no less than 20 members of the House who have belonged to it continuously since its inception in 1922, and a number of others have been members for almost the whole period. Whatever Party they may belong to, I am confident that they will agree with me that the majority of Senators have always used their influence against Party rancour and bitterness, and that the Seanad has habitually given to Bills which came before it a consideration different in kind from, and more dispassionate than, that which is usual in the other House.
But, as I have said, that is not the line I propose to take now. If the Seanad passes the motion which I am proposing, its action will be perfectly consistent with that taken by it so long ago as the 11th July, 1933, when it passed the following resolution and sent the appropriate message to the Dáil:—
That it is expedient that a joint committee consisting of five members of the Seanad and five members of the Dáil, with the Chairman of each House ex-officio, be set up to consider and report on the changes, if any, necessary in the constitution and powers of the Seanad.
The action taken then by the Seanad was, in effect, an offer of co-operation with the Dáil in carrying out the mandate alleged to have been obtained by the Government at the last general election for the abolition of the Seanad as at present constituted, and in the establishment of a new Second Chamber. If the Dáil had accepted this proposal, a genuine attempt could have been made to find a form of Second Chamber acceptable to all Parties; and I personally have no doubt that members of this House would have been found ready to treat the question in a patriotic spirit and without regard to Party considerations. If the joint committee had been set up and had failed, the Government had nothing to lose. They could still have proceeded with this or some similar Bill. If the committee had succeeded, the country as a whole would have gained. But the Dáil did not even have the courtesy to consider our message. That message has been printed on every successive Order Paper of the Dáil since its dispatch in July, 1933, and it has been completely ignored. If the proposal did not meet with the approval of the Dáil, it might have been expected, out of courtesy to another House of the same Parliament, to send a message to that effect; but it has not done so. I am glad to notice that at least one member of the other House—I refer to Deputy Dillon—has commented strongly on the attitude of the Government and of the majority of the Dáil in this matter.
It would appear to be the intention of the President to pass this Bill into law as it stands, over the head of this House, and to do so without any appeal to the people, whether by referendum or by general election. Such action is, to my mind, fundamentally wrong, and should in my opinion, be opposed by every constitutional means. It is contrary to all the recognised principles of democracy to make a change in the method of government of a country without a direct mandate from the people or without, at any rate, providing that the proposed change shall be submitted to the people before it comes into effect. I cannot find evidence that the Government either asked for or obtained a mandate to establish Single Chamber Government in this country, but I am satisfied beyond doubt that they did not obtain any authority from the people to place a bare majority of the Dáil in an unrestricted position to amend or repeal any or every Article of the Constitution without any period of delay or without any kind of reference to the electorate. And that is exactly what this Bill proposes to do.
If any Article of the Constitution does not suit the Government of the day, it can use its majority to abolish that Article and, if pressed for time, the Standing Orders can be suspended and the Bill passed in one day and become law by the evening. The new Sixth Stage in the Dáil suggested by the President as a substitute for the Seanad would be utterly useless on such an occasion. I wonder whether the people of this country realise that the constitutional provisions that the Oireachtas shall meet once a year and that the Dáil must dissolve within six years after a general election can in the future be altered or abolished at any time by a bare majority? I wonder if they realise that an Executive Council having a majority of one could abolish the Dáil or suspend its sittings indefinitely if it found it convenient to do so? I wonder if they realise that every safeguard for individual liberty which has not already been made removable by the Executive Council, by virtue of Article 2A, will now be subject to the will of a bare majority in the Single Chamber?
Even the independence of the judiciary, always regarded in civilised countries as the sure shield of the individual against tyranny, is gravely threatened, for the belated attempt made to safeguard it in the Bill is at best feeble and at worst may be totally ineffective. Under the Schedule, Article 63 of the Constitution will now be altered so as to require the votes of four-sevenths of the members of Dáil Eireann before a judge can be removed from office. But there is nothing whatever to prevent a bare majority removing Article 63 altogether which means that a judge can be removed by a bare majority, by first removing Article 63 and then removing the judge.
The Labour Party in the Dáil, having assisted in every possible way to create this situation, is at last showing signs of uneasiness. In the Irish Independent of the 7th January last, Deputy Davin is reported to have said:—
"Single Chamber Government is a positive menace to democratic government, especially when any one Party has a clear majority over all Parties in the Dáil."
Personally I agree with the Deputy, but I am curious to know why he voted for a Bill which sets up what he considers to be a menace to democratic government. The leader of the Labour Party in the Dáil appears to share to some extent the uneasiness expressed by his colleague. In his speech in favour of the motion to send this Bill again to the Seanad, he said:
"I would urge the members of the Executive Council, and in particular I would urge the members of the Fianna Fáil Party to exercise their opinions within the Party, to ensure that the Referendum will again be incorporated in the Constitution."
The value of these protestations is somewhat lessened by the fact that, although more than 18 months have elapsed since the Seanad passed and sent to the Dáil a Bill to re-establish the Referendum for constitutional amendments, and though it was open throughout that period to Deputy Norton or any of his colleagues to press for a discussion of the Second Stage of that Bill, not one of them moved in the matter. The fact that the Bill was supported by members of all Parties in this House did not prevent its being ignored by the Dáil in exactly the same way as the Message requesting a joint committee to which I have already referred. It is, of course, obvious that the present Government have no more use for the Referendum, now that they are in power, than had their predecessors in office and I have no doubt that the Labour Party are not oblivious to that fact. I would point out, however, that the motion which I am now moving is sufficiently wide in its terms to permit the conference which is proposed to discuss the reinsertion of the Referendum in the Constitution, if it is desired to do so.
One of the gravest features in this Bill to abolish the Seanad is that it seeks to effect the momentous Constitutional change from a bicameral to a unicameral system by the simple process of deleting from the Constitution (which was, of course, carefully designed for a bicameral Legislature) all references to Seanad Eireann. It is true that it does not quite succeed in doing so, for the Seanad has not been removed from Article 2A; and there are certain other grave flaws. But that, at all events, is the declared object. The safeguards which are universally regarded elsewhere as the necessary concomitants of Single Chamber Government are here conspicuously absent. There is no other country in the world, as far as I can find, which claims to adhere to the principles of democratic government, in which a simple majority in Parliament has unlimited power to alter the Constitution and to filch from the people any quantum of their sovereign power. In unicameral countries the restrictions on the power of the Legislature are found to be even more stringent than in bicameral countries —which, after all, is what one would naturally expect. The provisions relating to Constitutional amendments in the six unicameral States in Europe will serve to illustrate my point.
In Spain, which established a Single Chamber Parliament after the Revolution, considerable care was taken to prevent hasty change—the most important provision being that the Cortes can only pass an amendment to the Constitution by a two-thirds majority and, when such an amendment is passed, the Cortes is automatically dissolved and the amendment does not actually become law until passed by the newly-elected Chamber. In Finland, which has also only one Chamber, one-third of the House can cause legislative proposals to be delayed until after the next election and even then certain fixed majorities are required before constitutional amendments can become law. In Esthonia, which before the establishment of dictatorship had Single Chamber Government, one-third of the Chamber could submit any law to a referendum. In Lithuania a three-fifths majority is necessary for constitutional amendments, which may be then submitted to a referendum if demanded by the President. In the other Single Chamber countries—Bulgaria and Turkey— similar provisions are to be found, but as virtual dictatorships now exist in these countries, their constitutional provisions, I am afraid, are only of academic interest.
The Saorstát will, if this Bill passes, follow Spain, Finland, Esthonia, Lithuania, Bulgaria and Turkey in establishing Single Chamber Government. But it will have the unique distinction of being the only one of the seven unicameral countries which has no democratic safeguards. The President, at one time, appears to have been sensible of this danger. Speaking in the Dáil on the Fifth Stage of this Bill on the 24th May, 1934, he said:—
"It is suggested that we did this without any thought as to the situation that would result when the Bill became law. We did not do anything of the kind. Although we shall be going to the Seanad in a very short time—Wednesday, perhaps—with this Bill, I do not expect that the Seanad are going to pass it. They did not pass the Bill limiting their powers and I do not expect that they are going to pass this Bill abolishing themselves. We will, therefore, have a period of close on a year before this measure becomes law. During that period of time it is possible to do certain things and it is intended that certain things should be done."—(Debates, Vol. 52, col. 1812.)
On the following day he returned to the subject, giving us some indication of what these things might be. He said:—
"We want the Articles which guarantee democratic rights accepted by both sides, if possible. They are being examined at the moment... those who have had to apply them under successive administrations— permanent officials have had experience of their application—are having them examined at present with a view to seeing whether, in their precise, present form, they can be permanently adopted and secured, in so far as we can secure them, as the basis of our Constitution. When that examination is completed, I propose to bring in a Bill to deal with them."—(Debates, Vol. 52, col. 1876.)
That is nearly 20 months ago, but I gather from the lack of any reference to the subject in the President's speech on the motion to send this Bill to the Seanad a second time that nothing has been done, or if the matter has been considered, that the President is not yet in a position to announce the result in the Dáil. This very fact is, I suggest, a very strong reason why this resolution should be passed and should be accepted by the Dáil.
I have pointed out that our Constitution was carefully designed for a bicameral system. I, personally, have the gravest doubts whether, apart from the obvious and unique dangers I have mentioned, it can be made to work as an efficient system by the simple process of lopping off one of the two limbs of the Legislature. It would be just as sensible to amputate the two fore-legs of a quadruped and then to expect it to walk upright. Our whole legislative and administrative machine is based upon a Two Chamber system and I would like to refer to one aspect of the matter which I believe will be appreciated by this House and by a large number of persons in the country.
There has recently been published by the Government a compilation entitled "A Register of Administrative Law in Saorstát Eireann," covering the period from the 6th December, 1921, down to the end of 1933. In the introduction to this compilation I find the following astounding paragraph:—
"The Oireachtas, accepting the view that its laws should in the main be statements of principle, has shown a notable tendency to delegate the detailed elaboration and the practical application of its enactments. Legislation over a very wide area of civic activities has accordingly been reinforced by administrative directions of the most varied kinds and an extensive range of subsidiary law has grown up in the 12 years under review, far greater in volume than the body of law directly enacted by the Oireachtas. More than 3,000 orders are entered in this Register."
I confess that I read, with something like dismay, the statement that the Oireachtas has accepted "the view that its laws should in the main be statements of principle." That is emphatically not my view and I do not believe it is the view of the majority of the members of this House.