You can whip TDs into line, but beware of the backlash
The way business is done in the Dáíl runs the risk of causing the public to lose faith in our democratic process
Charlie Flanagan warned last week that the hate speech bill “has dangerous potential consequences”. Speaking on Midlands 103 radio, he gave the example of a medical professional who might be impeded in the treatment of gender dysphoria, or a commentator arguing that the Israeli military campaign in Gaza did not amount to genocide and he said they might be “open to prosecution”, which would result in “very serious and complex and difficult court action”.
As a TD who has held the highest ministerial offices in the land as a minister for justice and foreign affairs, one might expect his is a voice to be listened to in government, in the Dáil and especially in his own party. Yet all members of his parliamentary party voted for the bill at all stages in the Dáil, himself included. Why?
Willie O’Dea, a former minister for defence and a defender of the interests of the people of Limerick city, who have voted for him unstintingly since 1982, called for the bill to be abandoned in favour of a “focus on the real issues that matter to people”.
He, too, had voted for the bill to proceed to committee stage where the Government used its majority to vote down all opposition amendments before bringing it back, virtually unchanged, to the floor of the Dáil where it was passed by 110 votes to 14.
Sinn Féin, the biggest parliamentary party in the Dáil, also called for an about-turn on the bill, having supported it through the Dáil, It called on the Government to scrap “their bill”. Pa Daly, who before being elected had a distinguished legal career, fearlessly advocating for his clients, described it as “badly thought through and unfit for purpose”.
But, surely, it’s the Irish whip system that’s unfit for purpose?
The whip system was developed by the Irish Parliamentary Party in Westminster to utilise their numbers to greatest effect. They adopted an agreed position on most issues and effectively traded their votes on issues of less importance to them in return for votes on matters that did.
Since then, every party there adopted it and still uses it. Stories of Tory MPs being manhandled through the lobbies by whips at the height of the chaos of Liz Truss’s government were amusing and frightening in equal measure to Britons. However, unlike here, an MP does not face expulsion from his or her party merely for disagreeing with the merits of a particular piece of legislation, or a proposed amendment thereto, and voting accordingly.
Every parliament in Europe, and the European Parliament itself, has parties but their members are not required to subjugate all personal beliefs in favour of collective action when voting. Of course, voting against their parties will not endear them to colleagues, such as when all five Fine Gael MEPs voted for the Nature Restoration Law last month against the agreed position of the European People’s Party of which they, and Fine Gael, are members.
It’s hard to imagine a functioning government without some organisation and discipline, which political parties bring. The idiom “strength in numbers” is particularly true in politics, at least at first look. But what if the few control the many?
Even at its best, a rigid whip system is dangerously susceptible to groupthink. As Ireland scratched around in the embers after the economic crash of 2008, “group-think” was singled out as a cause. Many reforms were introduced to preclude a recurrence. Yet the manner in which the business of the Dáil is done stayed unchanged.
A former minister explained the merits of the whip system to me in my first term as a TD; it provided cover for a TD to vote for a measure that is unpopular in their constituency but is broadly supported across the State and which that TD knows to be in the national interest. But it has its limits.
In giving the government of the day effective control of the Dáil, it hands disproportionate power to ministers and the senior civil servants on whom they rely as they tour the country focused on the next election with little time to think about legislation. Worse, it can result in the legislative power being captured by those under whose influence, ideological or financial, a minister falls under.
An ostensibly less harmful example is the Forestry Act 2014 which changed the law to no longer require a permit to cut a down a tree more than 10 years old. A senior civil servant wanted the permit system gone as it was too burdensome for his department. So, at a time that the importance of mature trees for biodiversity was championed and government was spending millions on planting and promoting the planting of trees the same government was declaring open season on mature trees.
The minister, nominally in charge of the bill, wasn’t interested either way in the proposal. While he’d have been sad to lose a backbencher and see him cast out of the fold, the loss of his senior civil servant could be fatal. A wanton destruction of mature trees and hedgerows across the country followed. The departmental section relieved of the administrative burden is now choked with bureaucracy trying, unsuccessfully, to meet Ireland’s tree-planting targets.
Returning to the hate speech bill. Who wants it? Certainly, some in Dáil Éireann do but, as can now be seen, they are a small minority. Maybe some invisible hand in Government Buildings does. Some NGOs clearly do, but they’re not democratically accountable even if they receive large sums of taxpayers’ monies.
“Where citizens participate in the conduct of public affairs through freely chosen representatives, it is implicit” in a democratic system of government, according to the UN Human Rights Committee, “that those representatives do in fact exercise governmental power and that they are accountable through the electoral process for their exercise of that power.”
If and when people see their representatives do not have the power to reject draft laws with which they clearly disagree and see their representatives can be corralled into voting for such legislation at the behest of a narrow minority, then they lose confidence in the democratic process.
That, at the very least, “has dangerous potential consequences”.