Wednesday, 8 October 2003
Dáil Eireann Debate
1. Mr. Kenny asked the Taoiseach if he will report on the current position in respect of the implementations of the recommendations of the Oireachtas Committee on the Constitution; and if he will make a statement on the matter. [19535/03]
3. Mr. Rabbitte asked the Taoiseach the constitutional amendments the Government intends to bring forward within the lifetime of the 29th Dáil; and if he will make a statement on the matter. [19723/03]
4. Caoimhghín Ó Caoláin asked the Taoiseach if he will report on progress in implementing the recommendations of the Oireachtas Committee on the Constitution; and if, arising from this, a referendum or referenda will be held within the next year. [20280/03]
5. Mr. Sargent asked the Taoiseach the proposals he has to amend the Constitution during the lifetime of Dáil Éireann; when a referendum on such proposals may be held; and if he will make a statement on the matter. [20411/03]
The Government has no proposals at present for the conduct of a referendum to change the Constitution. The position will be held under review in the light of developments, in particular, the outcome of the examination of property rights issues by the All-Party Oireachtas Commit tee on the Constitution; the outcome of the study being conducted by the Sub-committee on Seanad Reform and the outcome of the Inter-Governmental Conference on the Draft Constitutional Treaty which commenced in Rome on 4 October.
Although at this stage it is difficult to judge when the Intergovernmental Conference will conclude, it is likely that work will continue into the Irish Presidency next year and be concluded during the Irish term of office but this is not yet clear.
The Government has acted on most of the key recommendations which have emanated from the All-Party Committee on the Constitution. In all, the previous Government brought forward nine referenda. The Government will avail of appropriate opportunities to take forward further recommendations of the All-Party Committee on the Constitution.
The complexities involved in holding a referendum require that careful consideration be given to the frequency with which referenda can realistically be held and the significance of the issues in question.
Mr. Kenny: Assuming that the work of the Inter-Governmental Conference is finished during the Irish Presidency which begins on 1 January 2004, what is the timescale envisaged for a referendum to give effect to that? Will the Taoiseach confirm that such a referendum is necessary?
In view of the continuing difficulties experienced by young couples in the matter of rising house prices, does the Taoiseach consider that the Oireachtas committee should expedite its work on the issue of property rights and possibly report to the House within six months?
Arising from the Sheedy affair a number of years ago, the Taoiseach will recall that he published proposals for a constitutional referendum to provide for judicial accountability. What is the status of that proposal?
The Taoiseach: I reiterate to the House that I do not know when the Intergovernmental Conference will finish. It depends on how many issues arise during the discussions. There is normally a two year period after the signing to allow every country to ratify the treaty.
I am informed by the Minister that the NESC report which is a major study of the property and housing issue is expected to be completed by Christmas. It is hoped that the all-party committee report will be available in January. That is a little quicker than I thought it would be. The Minister has informed me that is the factual position and that will help matters. We will then have to examine the recommendations of both reports. NESC has looked at the last 30 years and undertaken a nationwide examination of land use. The All-Party Committee on the Constitution has done a good job over the summer and it has listened to the opinions of many groups.
On the other issue, the Deputy will recall that we have not been able to reach agreement. The judicial oversight was not passed in the Dáil but it remains there. If it was the will of the parties in the House to revisit this matter I would agree to that proposal.
Mr. Kenny: I note that the Leader of the Seanad, Senator O'Rourke, is anxious to attend Cabinet meetings again. Now that the Seanad reform committee has received submissions, does the Taoiseach consider that it might be appropriate at a future date to have a referendum on a proposal to reform the composition and functions of the Upper House? Whether the Leader of the Seanad will be in a position to avail of the outcome of any deliberations is, I suppose, a matter of timing. Depending on its recommendations, is the Taoiseach considering holding a referendum on the more effective reform of the Seanad ?
The Taoiseach: I cannot be sure but from an examination of the papers and some of the issues that have been debated, such as the change in the composition of membership as it affects Northern Ireland, I think it probably will be necessary. There seems to be agreement on a number of issues even though I am sure there will be plenty of disagreements. All parties, including the Deputy's party, seem to be in agreement on the extension of the size of Seanad membership to allow for Northern representation on a more permanent basis and to put it on a proper footing. I am fairly certain that to increase the membership of Seanad Éireann to over 60 would require a constitutional referendum. There are also some issues about its structure. There seems to be agreement that the university representation will have to change. It ultimately will require a constitutional referendum.
Mr. Rabbitte: The Taoiseach referred to a NESC report being with him at Christmas and to the constitutional committee having its recommendations on the capping of the price of land with him by Christmas. Has the Government any view on the issue? The question is to the Taoiseach about his Government. Does the Government have any view on whether a referendum is necessary and desirable to cap the price of building land? Did the Taoiseach hear Deputy Gilmore's introduction of the Labour Party Bill in the House last night where he pointed out that the average price of a house in Dublin when the Taoiseach took office was €97,00? It is now €297,000. Did he hear Deputy Gilmore mention the report from the Casey bulletin which, having surveyed land in Fingal, found that the price of a site just immediate to the boom made up 10% to 15% of the cost of the house, but that it is now between 40% and 50%?
Mr. Rabbitte: I am asking the Taoiseach if he is aware of these matters, given that he might not have heard Deputy Gilmore explain them to the House last night. I proceeded by way of question and I am perfectly in order. Does the Government have any view other than what the committee might report? Can the Taoiseach think of any other instance where the Government has made policy based on what a committee of the House recommended? This is the Taoiseach's seventh year in power. Has he asked the Attorney General at any stage for his advice on whether a constitutional referendum is necessary to intervene in the common good to cap the price of land?
The Taoiseach: I have done all the things Deputy Rabbitte said. I did not get a full report of what Deputy Gilmore said, but I heard some of his comments. I accept many of the points he made. I subscribe to his efforts, although I understand the Bill has many flaws. I asked the All-Party Committee on the Constitution to examine all aspects of this issue. I also asked NESC to undertake a study and to examine in particular the issue of land use and capping. The Attorney General has undertaken an amount of work in this area. He has a lot of expertise in this area as a result of his previous work. I am sure Deputy Rabbitte knows that a number of lobby groups are against this. Their advice and the advice I have been given is that we would be unlikely to get away with such a move because a Bill would be quickly challenged. I do not believe we would get away with it.
Part V of the Planning Act and the constitutionality protection it provides would allow us to do certain things. However, it is unlikely that we will be able to cap development and agricultural land. We will see what the constitutional review group recommends. The advice I have is that it would be difficult to do this in legislation alone and that it would almost certainly be challenged. That was made clear by a number of organisations recently, including the farm organisations.
The Deputy is right about the price of land. However, as regards supply, we were only building 25,000 houses in the period the Deputy mentioned, but we are now building 62,000. We have managed to get the supply side of housing nearly right. It is a matter for argument in the industry as to whether supply and demand will go one way or the other over the next year or two; it depends on to whom one speaks. I am sure Deputy Rabbitte has spoken to as many people as I have. We have moved it from historically high figures to figures that were not conceived. Back in the mid-1990s people believed we could build 35,000  houses a year, but we have brought that figure to 62,000, which is an enormous achievement by the Government.
The Taoiseach: Those are the facts according to the auctioneers, the industry and every survey done. Rents have fallen dramatically and protection for tenants has increased under the Residential Tenancies Bill.
The Taoiseach: I noticed this year for the first time in the past decade that there was no outcry from students who returned to college in late August and September about accommodation because accommodation was not fully filled in many parts of the country.
Mr. Rabbitte: I know the Taoiseach loves swapping gossip on this question and he is good at it. Did he seek advice from the Attorney General and does he have advice to the effect that a constitutional referendum is necessary? He said the farming organisations and others recommended it. However, what is the Government's view? Is it contemporary best legal advice that the Government should introduce a law in this House, like Deputy Gilmore sought to do last night, and that its constitutionality be tested? Seven years have passed and during that time the spiral in house prices has continued. When the Taoiseach says he subscribes to Deputy Gilmore's effort, what does he mean? Deputy Gilm ore's effort was to cap the price of building land. Does the Taoiseach subscribe to that or does he only subscribe to the fact that Deputy Gilmore generally holds decent values?
Mr. Rabbitte: Will the Taoiseach consider introducing legislation in the House and letting it be put before the Supreme Court where its constitutionality will be tested to address a problem? Notwithstanding what he said about the increased housing output, there is a desperate housing need in our society.
The Taoiseach: I agree with Deputy Gilmore because he said many of the things I have been saying. I still think property, particularly property for start-ups, is too expensive. That is why I share his point of view and that of everyone else. I also subscribe to the view that it is a pity the Kenny report was not implemented. I know it was produced in a different time. It is almost three and a half decades ago since much of the work was done on that report. That is why I asked NESC to examine all the new issues, including capping the price of building land, land usage and the ability to do it from an economic point of view. It is doing that and its report will be important.
The Taoiseach: The Deputy is talking about that. Deputy Rabbitte asked me about a strict legal point. I am not a lawyer, but the strict interpretation of the constitutional right is that it is an absolute right. Even the part we won—
The Taoiseach: The Deputy either wants me to give the legal point or she wants to ignore it. What we achieved in Part V of the Planning Act will assist us to take over. If the State wants to buy land and zone it, it is unlikely it will hold up on a constitutional basis. That is the strict legal position. We may be able to do a certain amount of it. We have State land banks and we may be able to do certain things with that. I find what is happening now abhorrent because I see what developers are doing. They now have the option system. It is difficult to find out how extensive is that system. That will keep prices high for the future. I hope the NESC report will help in that regard.
Caoimhghín Ó Caoláin: Before the summer recess the Taoiseach pledged to the House that he would take personal ownership of the project to secure representation in the Dáil Chamber for people in the Six Counties. During the intervening period, what steps has he taken to implement the commitment he gave in the House and further afield? For some considerable time there has been a continual effort to ensure real and effective accommodation of the right of people north of the Border to participate in appropriate debate within this Chamber. Where stands the project of which the Taoiseach has taken personal ownership? Does he agree that it would be appropriate at this time for the various leaders of the political groupings in this House to meet, at his invitation, to consider the actual steps to be taken to give effect to this recommendation of the All-Party Committee on the Constitution, which has been warmly embraced by all representative voices here?
I listened carefully to the Taoiseach's responses earlier on the review of the Seanad. Will he not recognise that this is not about token representation but about participation, not only for people north of the Border in terms of access to the Seanad but for the electorate.
Caoimhghín Ó Caoláin: We are seeking to address a constitutional change. It is not only about participation for people north of the Bor der but for people throughout this jurisdiction also. The Seanad is the most bizarre electoral—
Caoimhghín Ó Caoláin: The electoral process for the Seanad is among the most bizarre known, certainly to this Deputy. Is the Taoiseach proposing to go to the wider electorate and ask them to tweak a system which debars the greater number of them from active participation in the selection of representation in the Seanad? Does the Taoiseach not agree with the recommendation of the All-Party Committee on the Constitution that election to the Seanad should be by common franchise for all the people? Does he accept that the franchise should be extended to people throughout the island of Ireland, as I and my colleagues argued in our submission to the sub-committee on Seanad reform?
The Taoiseach: There are two parts to the Deputy's question, dealing with the overall question of Seanad reform and the proposals that have already been made for reform, but I do not think the answers to either of them will give the Deputy what he requires. We must consider the report of the committee on Seanad reform and see what the parties of the House want to contribute. We cannot ignore the views of those who have made up and worked in the Seanad through the generations. As I already replied to Deputy Kenny, we will require a constitutional referendum to provide for Seanad reform. I have also stated that we should build into the Seanad representation from the North in increasing numbers. I have already given my views, as has my political party, to the committee which sat over the summer in full session.
The Deputy asked whether I would try to finalise arrangements for representation from the North. Since the signing of the Good Friday Agreement and the establishment of the North-South Ministerial Council and the all-Ireland Implementation Bodies, it was agreed by all parties in the last Dáil to arrange for representation on a more formal basis. Arrangements should be put in place to allow representatives to contribute appropriately to debates in the Oireachtas on Northern Ireland and the Good Friday Agreement. I am in total favour of that and the Whips are ready to do it, but we have a slight difficulty at the moment in that we do not have any North- South ministerial bodies because we cannot obtain the necessary trust and confidence to set up the institutions again. If we could do that, perhaps I could get on with the rest of it. If Deputy Ó Caoláin could help me with the latter, I could help him with the former.
Mr. Sargent: There are a number of questions arising from the issue of amendments to the Constitution. There has been considerable questioning of the provision in the Constitution under which Members of the Oireachtas can claim immunity from prosecution when travelling to or from this House. Does the Taoiseach feel the time has come to remove that provision? According to many commentators, it does not seem to have any basis in modern Ireland, whatever its origins at the time of publication of the Constitution.
On the subject of addressing the democratic deficit, is the Taoiseach aware of the facility that exists in other countries to nominate the President, for example, based on the collection of a number of signatures? In the USA it is called a recall initiative. Due to the election of Governor Schwarzenegger, it has been in the news. I am not sure whether the Taoiseach has sent good wishes to the governor yet.
Mr. Sargent: My final point may be related to the views of Governor Schwarzenegger. The courts found that Ireland had not acted as a neutral country recently in the context of the war on Iraq. Is the Taoiseach prepared to face up to that issue and have our position enshrined in the Constitution so that we can be clear where Ireland stands in the future on international matters?
The Taoiseach: That can be done legally, although I do not know whether it is necessary to have a provision in the Constitution. We saw during the last presidential election that the system can work quite well. People can obtain petitions from local authorities that allow them to run, so there is no difficulty.
There was a reason for the provision about immunity from prosecution while travelling to and from the Dáil in 1937 and prior to that, but I would not like to try to argue for its retention in a court. It would probably be thrown out today. It does not have much relevance in today's Constitution.
The Taoiseach: If we hold a reform. The problem in many cases is to find a suitable way of updating these provisions. I cannot imagine anyone trying to use some of these but we have to find suitable ways of changing some of the issues, including gender and many others that I have already put on the record. The Deputy asked for my view; I do not think that is a provision that merits constitutional protection, nor do I think that if somebody sought to use it, it would hold up in court.
Mr. Kenny: I was interested in the Taoiseach's comments about first-time buyers of new houses. In fact, he has replaced the first-time buyer's grant with a 1% VAT levy and site improvement  charges, so the situation has gone from €3,000 plus to a possible €5,000 deficit.
Does the Taoiseach consider it is constitutional for some local authorities to lay down a regulation that persons born in this country are not entitled to obtain planning permission in a given county?
Mr. Kenny: I understand that, a Cheann Comhairle, but it is a cause of considerable concern to people. As regards the affordable housing scheme, which applies nationally, does the Taoiseach think it is unfair that in the same estate one can have a difference of €50,000 for some houses where one subsidises the other?
Mr. Kenny: Of two houses side by side, one may be affordable and the other may be on the open market, and there can be a price difference of €50,000 for couples who acquire such houses. Does the Taoiseach think there is a constitutional element to that?
Mr. Rabbitte: I apologise to the Taoiseach if I did not hear him correctly. Will he restate to the House his intentions in the matter of representatives from Northern Ireland being accommodated in the Oireachtas? To which House is he referring? Presumably, any such proposal would be on a cross-community basis. Does he think it realistic that the Unionist community would avail of such a facility? Will he be clearer in terms of what scheme has been put to the Whips and where he  thinks the proposal stands in terms of it being progressed?
The Taoiseach: During the last Dáil, the House agreed to a suggestion whereby provision would be made for Northern representation in the House for debates on the North, including the Good Friday Agreement, and that it would be on a cross-community basis. We have not implemented that, which is the question posed by Deputy Ó Caoláin. At the time – I cannot remember exactly but I think it was at the end of 2001 or early 2002 – we agreed to make such a provision. The difficulty has been that following the last general election and the resumption of the Dáil, the Northern institutions were suspended last October so we have not been able to implement the provision. It was envisaged that it could operate in committees of the House or in a session of the House itself when Northern matters were being discussed. It was not envisaged as applying to general debates.
The other provision formed part of the Seanad reform proposals whereby instead of appointing members of both Northern communities to the Seanad, as has continued for 30 years, the number of Senators would be increased to allow for representation from Northern Ireland. It was not agreed how that would be done but we were to work out a basis whereby at least four or five Members of the Seanad would be from the North. That was not agreed but the concept was certainly there. That has now become part of the Seanad reform discussions but no agreement has yet been reached on it.
During the last Dáil, agreement was reached by the Whips on the first proposal but I do not see how we can do it unless the North-South Ministerial Council is re-established. It would have to be linked into that council but hopefully it will be re-established at an early date.
Mr. Rabbitte: Is the Taoiseach saying that if the Northern institutions were up and functioning again and the North-South dimension was working, then persons who have not been elected to this House would have an audience in this House in matters specifically concerning Northern Ireland?
Caoimhghín Ó Caoláin: I thought we had all covered this ground before and with agreement we should be able to proceed. I hope everyone is doing their utmost to achieve a resolution of the current difficulties concerning the Northern Assembly and related matters. Does the Taoiseach not recognise that, given his commitment to move forward to accommodate the participation of elected members of parliament from the North of Ireland in this Chamber on specific debates, this is a matter he must progress with  urgency? I ask again what steps are being taken. The Taoiseach's reference to Whips' meetings is but a kicking to touch – a response that he has given on a number of occasions.
The Taoiseach: As I told Deputy Rabbitte, the committees and the Whips put forward a view, to which we agreed, that it would be particularly valuable from time to time, in the context of the North-South ministerial bodies, to have the expertise and experience of politicians from Northern Ireland in appropriate debates. That has been agreed but it is necessary for the House to agree the procedural arrangements to deal with that. I do not believe the House can move on those procedural arrangements until the institutions have been re-established because the House made that agreement, back in 2001 or 2002, on the basis that the North-South Ministerial Council would be operating. We cannot, therefore, make the procedural agreements.
As regards Deputy Rabbitte's last point, the House will have to decide where those debates take place – in a committee of the House or a full sitting of the House when it is reviewing Northern Ireland issues. Those procedural arrangements will have to be made through the Whips but I cannot see how that can be done now. We have made the decision in principle but we cannot make such arrangements until the North-South bodies are re-established. The House has indicated that it is prepared for this, in principle, and I have no doubt that the Whips will discuss the procedural arrangements but they cannot do so until—
The Taoiseach: In fairness, I do not think that is the position. The House agreed to a committee report and we stated that when the institutions were re-established we would examine how we could deal with that procedurally. When it comes around, we will have to look at whether it will be done through a committee of the House or otherwise. However, those are procedural issues which were not agreed at the time and which, I am sure, the Whips will readily agree as soon as the institutions are operational. We will have to decide on the appropriate way of doing that, but I have not put my mind to it; we will have to work  that out. I am ready to do that whenever we will be in a position to do so. They have agreed to the principle, but I cannot ask them to agree to the procedures until we have the North-South institutions up and running again. I do not see how I can do that.
Mr. Stagg: The Ceann Comhairle will agree with me that the previous Government Whip, now Minister for Transport, Deputy Brennan, circulated a report of the All-Party Committee on the Constitution to the Whips, who were to examine it and respond. The present Whip has raised it once or twice as well. There was no response from any of the Whips that I am aware of, except from Sinn Féin. The reason there was no urgency about it and that the Whips could not proceed was that we were operating in a vacuum in the absence of the institutions. Can the Taoiseach confirm that is the case?
Mr. Boyle: Has the Government any intention of addressing the anomaly whereby citizens who are aged 18 years can vote for Members of this House but cannot be Members themselves? That is surely an anomaly which should be tackled. I seek clarification of the reply the Taoiseach gave earlier regarding immunity from prosecution for Members travelling to and from this House. He appeared to indicate it would not hold up in a court of law. My understanding is the Constitution would take precedence and the provision has been used as a precedent for a Member of the Oireachtas in the past. The signal should be sent out that this is a constitutional provision whose time is past. Will the Taoiseach make a strong statement along those lines?
Ms McManus: In view of what he said this morning does the Taoiseach accept that an essential part of the report from the All-Party Committee on the Constitution was the requirement that any representation or presence in the Oireachtas would be on a cross-community basis? This is not about one party having representation. It is about cross-community presentations that require that principle to be established. It is not simply about procedures – it is about trying to deal with an issue that has been discussed by the committee. The requirements of the committee are very plain. Would he accept that?
Mr. Allen: In view of the happenings in California last evening, does the Taoiseach propose to introduce a constitutional change to allow a recall  system so that we can terminate this Government?
The Taoiseach: I will not rise to that, a Cheann Comhairle. On Deputy McManus's point, yes, the basis of what the Whips agreed is set down in the report. The procedures have to be worked out as to how we operate it, but it was cross-community. There is no doubt about that.
On the 18 to 21 age question raised by Deputy Boyle, that was agreed on one of the earlier reports. It was agreed that it will be changed in a future referendum. It was agreed under the “National Parliament” to reduce the age of eligibility from 21 to 18. It has therefore already gone forward as a recommendation which the Government has agreed to. It is a matter of just getting a suitable opportunity to put it forward.
I agree that the provision preventing a Member being stopped or arrested going to or from the Houses of the Oireachtas is superfluous. I do not know when someone tried to use it last. Personally I do not believe it would hold up now if anyone tried to use it. It had a very distinct purpose. It was about a very different time and it had a value in those days. To try to use that now—
The Taoiseach: One could. I remember the last time I heard it argued in the House. It is not so many years ago when there was a large protest outside the House and Members found it difficult to get in. That was a slightly different provision from this one. It did come up recently and I know that is why Deputy Boyle has raised it. Even in its original form, it applied only when a House was in session. The fact that it comes up now does not do the Houses any good.
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