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Why can't Ivor Callely be sacked?

We explain why nobody can force Ivor Callely out of his seat in the Seanad.

Ivor Callely's latest expenses controversy will be discussed by an Oireachtas committee later today.

THE TAOISEACH says he can’t force Ivor Callely out of his job – despite the fact he’s in the Seanad as a Taoiseach’s appointee. Why?

Well, it’s actually a rather simple reason. Article 18 of the Constitution of Ireland outlines the makeup of the Seanad, which (as it says) includes 49 elected members and 11 “appointed” ones.

Here’s two appropriate passages from subsections of Article 18:

3. The nominated members of Seanad Éireann shall be nominated, with their prior consent, by the Taoiseach who is appointed next after the re-assembly of Dáil Éireann following the dissolution thereof which occasions the nomination of the said members. [...]

8. A general election for Seanad Éireann shall take place not later than ninety days after a dissolution of Dáil Éireann, and the first meeting of Seanad Éireann after the general election shall take place on a day to be fixed by the President on the advice of the Taoiseach.

So, all simple so far. The Seanad is dissolved at the same time as the Dáil. The Dáil is elected, meets and appoints a Taoiseach. There’s then a Seanad election for 49 of the 60 seats, and the new Taoiseach then gets to hand-pick the other 11 people.

In 2007, Bertie Ahern was given his third term as Taoiseach, and thus the Manchester United fan got to hand-pick his starting 11. As is customary, he gave two seats to each of his coalition partners, the Greens and the Progressive Democrats.

Ahern appointed one independent – Sunday Independent columnist Eoghan Harris, who fought his case on the Late Late Show just before the general election – and six members of Fianna Fáil, including Callely.

Now let’s skip down to subsection 9:

9. Every member of Seanad Éireann shall, unless he dies, resigns, or becomes disqualified, continue to hold office until the day before the polling day of the general election for Seanad Éireann next held after his election or nomination.

This is the key point of contention – while most might think that the Taoiseach ought to be able to remove someone’s Seanad membership just as easily as they can give it, it’s not the case.

Take the people Ahern appointed – Senator Ciarán Cannon, who was appointed as one of the two Progressive Democrats and even went on to lead the party, joined Fine Gael when the PDs disbanded. Surely, if a Taoiseach could remove a member, he would have done so then.

So Article 18.9 guarantees that a Senator can’t be kicked out unless they’re “disqualified”, begging the question: how is someone disqualified? Well, that’s slightly more ill-defined. Says Article 18.2:

2. A person to be eligible for membership of Seanad Éireann must be eligible to become a member of Dáil Éireann.

Assuming the same criteria apply to ineligibility as they do to eligibility - a matter which hasn’t been clarified or proven in court - the following bar someone from membership of the Dáil, and thus (presumably) the Seanad:

  • Membership of the European Commission or being a judge, advocate general or registrar of the European Court of Justice
  • Membership of the Court of Auditors of the European Community
  • Membership of the Garda Síochana
  • Full-time membership of of the Defence Forces
  • Being a civil servant and not having explicit permission to run for the Dáil in your contract
  • Being of unsound mind
  • Being in prison for a term greater than 6 months
  • Being an undischarged bankrupt
  • Being the President, a member of the Seanad, the Comptroller and Auditor General or a Judge.

Therefore, realistically, the only way Ivor Callely can be stripped of his Seanad membership is if he is somehow given a prison term of longer than six months.

The only way to avoid this procedure in future would be to amend the constitution inserting a provision that allows a member be sacked – which would require a national referendum.

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