Home > Commentary, Constitution of Ireland > Constitutional Revolution III: Further Thoughts on Process

Constitutional Revolution III: Further Thoughts on Process

As weekend readers will know, we had some discussion on Saturday of the Fine Gael proposals to hold a ‘Constitution Day’ within 12 months of entering Government which would see five reforms of the Constitution to declare a ‘New Republic’. Yesterday I made the point that piecemeal constitutional reform for electoral rather than principled reasons (or at best half-thought-through principled reasons) has resulted in a failed process of reform in the UK – eg in relation to the House of Lords. I argued that any serious overhaul of the Constitution would have to take account of the need for a complete system of government. Today, I will look at three further factors that might scupper Fine Gael’s efforts at serious overhaul (bearing in mind that this is regardless of the merits of the proposals themselves): coalition government, the referendum mechanism and the need to embed constitutional change.

Coalition Government
Let us assume, for a moment, that Fine Gael have managed to think through the implications of each part of their proposals for the whole Constitution. If this is the case they may argue that they have proposals for a new system of government that would be an improvement on the status quo. Under those circumstances, Fine Gael would need to ensure that the new system of government was not subsequently undermined by one or two of their proposals being abandoned to appease a future coalition partner. Labour Party TD for Dublin Mid West, Deputy Joanna Tuffy, described the proposed list system as ‘undemocratic’ and claimed that Fine Gael ‘are looking for some big policy that seems radical but would in fact be a backward step’ (see comments here). If the proposals win the support of the Fine Gael party and if Fine Gael lead the next government, they would have to sell the entire reform package to their coalition partners or risk losing the sense of balance in the new system of government.

Referendum Mechanism
A related point is how the proposals are put to the public on ‘Constitution Day’. There are two obvious options: all as one Bill amending the Constitution, thus allowing the public to accept or reject the proposals as a whole; or as several Bills that allow the public to assent to certain changes but not to others. Both routes are potentially dangerous to the constitutional process. If the referendum takes an all-or-nothing approach, then there is a risk that a coalition of different ‘no’ voters would reject the changes. If there is the opportunity to accept certain changes and reject others, the ‘New Republic’ may not have a balanced constitution. For example, a crude computer search of the text of the Constitution offers 68 instances of the word ‘Seanad’ in the Constitution. Obviously, the proposal to abolish the Seanad would be a detailed Bill that would remove all 68 references. But any system of government that is to replace the current one would also have to address the Seanad powers and responsibilities that are contained in those 68 textual references. If, for example, the list system for the election of 15 Dáil TDs is being proposed to ensure that there are those that can engage in the legislative scrutiny that the Seanad currently does, then offering the public the choice to abolish the Seanad and reject the list system would be fatal to effective operation of the new system of government. This brings us to the third issue: the need to ‘embed’ constitutional change.

‘Embedding’ Constitutional Change

A lesson from Britain can be learned with regard to the experience of the Human Rights Act 1998. Successful constitutional reform needs to be ‘embedded‘ in the public conscience. The Human Rights Act was passed within eighteen months of the Labour Party seizing power in 1997. While two years were set aside for the training of public officials and the judiciary to comply with the Act’s requirements, no efforts were made to educate and inform the public. The result has been the unchecked perpetuation of two popular myths: that the Human Rights Act is foreign legislation imposed by the EU and that only criminals benefit from it (see any tabloid for proof).

I’m sure some would argue that the Irish requirement of a referendum and the ensuing campaign for a ‘Yes’ vote would present the opportunity to inform the public and offer the opportunity for debate. However, there is little evidence from recent referenda that any of the major political parties are capable to carrying out a successful campaign of constitutional education (apart from the debacle of the two Lisbon referenda, the citizenship referendum stands out as a clear example of constitutional change by terrorising the public). Thus the six week campaign would be woefully inadequate to achieve the sort of reasoned and informed debate necessary for the public to be aware of the nature of the proposed changes.

I make no claim that there was any effort to properly embed the Constitution in the minds of the people when it was first adopted, but Ireland was clearly experiencing a constitutional moment in which revolution was possible. The country’s circumstances in 2010 (economic hardship and discredited politics) presents possibilities for radical reform.  However, successful and lasting constitutional reform (rather than revolution) cannot be achieved overnight. The three factors discussed here cast serious doubt on the idea that it would be possible or desirable to attempt such change within the first year of a new government – within the first time would be more like it.

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  1. March 15, 2010 at 6:28 pm

    Excellent commentary over at Irish Election from Veronica McDermott: http://www.irishelection.com/2010/03/fine-gaels-new-republic/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Irishelection+%28IrishElection.com%29&utm_content=Bloglines
    I especially liked her observation on the proposed petition: “Do we really need the parliamentary equivalent of the Joe Duffy show?”. Well, rather.

    Harry McGee also makes some observations echoing Cian’s views here on the IT Politics blog: http://www.irishtimes.com/blogs/politics/2010/03/15/will-fine-gael-really-turn-the-oireachtas-upside-down/

  2. Neil Maddox
    March 15, 2010 at 7:15 pm

    Thanks for the links Fiona. I’m really quite surprised at the negativity surrounding this. There is a real appetite for change at the moment, particularly among young voters. It’s not just for a simple change of Government that people want, but something more fundamental and root and branch reform of the political system might be far more popular than Cian speculates. I don’t think you can hold up the normal viccisitudes of doing political business (the compromise with any coalition partner, the practical difficulties of framing the Referendum)as valid grounds for predicting the failure of this. Indeed, the input of a coalition partner might strengthen the proposals.

    I would also have to reject the British comparison, and the explanation for the hostility to the Human Rights Act in Britain is not simply a failure to educate the public as to its effects. The causes of this hostility relate to the fact that, historically, the UK had never permitted legislation to be subject to a system of judicial review. The effective (if not technically in form) striking down of legislation for failure to comply with a quasi-constituional document is indeed “alien” to the British, simply because they have a strong cultural legacy of the supremacy of Parliament dating back hundreds of years. Both ourselves and the U.S. are well used to the courts having such powers of review as we have strong constitutions.

    It is also of note that our own Constitution is not even 100 years old, and in the brief history of the Irish State, we have already overhauled it once, with little controversy. The reality is that most ordinary Irish people do not feel any attachment to the Constitution. It is not closely assocaited with Independence (as it is in the US) or the achievement of democracy (as the Bill of Rights is in Britain). I don’t think any attempt to change relatively benign political instituions such as the President, or the Seanad, would attract huge controversy. Indeed, it might encourage people to engage politically who had not done so for some time.

  3. ciancmurphy
    March 15, 2010 at 7:33 pm

    Neil, on the points:

    (1) A coalition partner and the input of other political parties has the potential to be positive or negative. It is more likely to be positive if the reforms are seen as part of a cross-party attempt to reform the political system (and therefore negotiation can be about improving any new system of government than about scoring political points). However, that would likely take longer than a year and such cross-party support is also unlikely to be forthcoming if Fine Gael make this an election issue.

    (2) As I’m not based at home I have to take the point regarding change. When I am home (about every 2 months) I largely see disillusionment: many of my generation have not engaged with politics at all. If this is not representative of the majority (or even a significant minority) perhaps there is appetite for change – but constitutional change?

    (3) I think we’ll have to agree to disagree on the Human Rights Act. While the historic absence of powers of judicial review may contribute to a lack of understanding about the Human Rights Act, there is evidence that the lack of education is a significant factor in the popular rejection of the Act (see Jack Beatson in the first issue of the Law Quarterly Review in 2010).

    (4) I’m not necessarily opposed to the constitutional change and I don’t think the public are necessarily the greatest roadblock to it. However – if there are problems in the Irish constitutional system that result in less than ideal government it is not particularly pessimistic to suggest that that system will resist change. This resistance is likely to be all the greater if the changes would disempower groups that currently hold much power.

  4. Neil Maddox
    March 15, 2010 at 8:26 pm

    Cian, I certainly accept the potential for negative input from coalition partners and the resistance from bodies (and perhaps parties) that would stand to lose from any such change. The latter point is the real difficulty with effecting structural change of any political system. As regards the appetite for Constitutional change as opposed to a simple politcal change– well, we’ll just have to see. I’m clearly just speculating in saying that there is; but it will be interesting to see if the current disaffection will translate into an appetite for such reform.
    We’ll also have to see the substance of the proposals and the willingness of F.G. to accept input on them. You are correct in pointing out that such a major referendum should not be rushed into and should really be subject to some cross-party scrutiny. Otherwise, we might have the road to hell and all of that…

  1. March 20, 2010 at 12:17 pm
  2. March 21, 2010 at 6:43 pm
  3. March 23, 2010 at 8:33 am

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