Is Constitutional Revolution Nigh in Ireland?
Recent weeks and months have seen a seemingly endless stream of proposals emerge for constitutional change in this jurisdiction and reading today’s Sunday Times I noticed that Enda Kenny—the leader of Fine Gael and quite likely to be Ireland’s next Taoiseach [Prime Minister]—has now added another proposal to the list: that the President’s term would be reduced to five years. As far as I am aware we are now in the midst of a number of debates with constitutional implications:
- The Fine Gael proposal for the abolition of the Seanad
- The Fine Gael proposal for the reduction of the Presidential term
- The commitment in the renewed programme for government to hold a constitutional referendum to recognise the role of parents in the home rather than that of mothers and wives (I blogged about this here)
- The commitment in the renewed programme for government to hold a constitutional referendum to introduce a Court of Civil Appeal
- The debate about a constitutional amendment on children’s rights (about which Aoife blogged here)
- The renewal of the debate around a Charter of Rights for the Island of Ireland as contemplated by the Belfast/Good Friday Agreement and under consideration by the Joint Committee of the Northern Ireland Human Rights Commission and the Irish Human Rights Commission
There may even be more proposals than this floating around, but these are the ones that come immediately to mind. Other matters have arisen recently for discussion where the government has committed to pursuing a particular course of action in order to avoid the perceived need for constitutional reform; I am thinking here in particular about the Civil Partnership Bill 2009 (about which we blogged here, here, here and in a guest contribution from Andrew Hayward) and the inclusion of a crime of blasphemy in the Defamation Act 2009 (about which Colin blogged here). In addition, there may be developments in the near future that will require us to at least consider whether constitutional reform would be appropriate in other areas such as the right to life of the unborn, depending on the outcome of ongoing litigation in the European Court of Human Rights (about which Máiréad blogged here).
This is beginning to look remarkably familiar, especially to people who took an interest in the constitutional reform programme undertaken by New Labour since their election in 1997 which involved, among other things, the introduction of the Human Rights Act 1998 and the creation of the UK Supreme Court. The Irish Constitution will celebrate its 75th birthday in 2012 and as that time quickly approaches one is tempted to ask whether the momentum towards constitutional reform is essentially a push towards retirement for the Constitution as we know it. What is particularly interesting to me, however, is that Enda Kenny seems to be especially prone to recommending constitutional change and the abolition or reform of constitutional offices and institutions without necessarily reasoning out his proposals particularly well. In fact, they smack somewhat of populism, which is disappointing to those of us who might generally welcome a change of government in the near or medium future.
The fact that we have the great privilege in Ireland of amending our Constitution by means of popular referendum means that there is always a risk of the introduction of populist referenda. Indeed, the Citizenship Referendum would, in my view, have fallen into this category. The introduction of a constitutional discourse into election-related canvassing and the promise—as Kenny has made—of a package of reform being put to the people for referendum within one year if Fine Gael goes into government carries a serious risk that constitutional reform, which should be principled and reasoned and framed by considerations of necessity and of whether the constitution is fit for purpose, will become an electoral pledge resulting in populist referenda and enormous constitutional change that is insufficiently reasoned.
There are arguments for the kinds of constitutional reform that Kenny has suggested, however there are also arguments against same or for other alternatives. The Constitution ought not to be up-for-grabs in a general election, not least because fundamental rights rarely fare well in populist discourses and referenda. Constitutional reform needs a far more reasoned process of debate and consideration than can be afforded within an election (or ‘election ready’) milieu.