Constitutional Revolution II: The Dangers of Piecemeal Reform

Last year Fiona asked if constitutional revolution in Ireland was nigh: Fine Gael were proposing several constitutional amendments; an amendment on Children’s Rights was in the works; and the Bill of Rights debate in Northern Ireland had reignited the question of an All-Ireland Charter of Rights. Now, the Children’s Rights amendment has been published (see Our Symposium) and the Bill of Rights debate continues but is mired in the malaise of British politics (see Colin Harvey here and myself here). Today Fine Gael announced the publication of a new document, New Politics, which calls for a ‘Constitution Day’ within one year of their taking office in Government Buildings to allow the public to consider five new constitutional amendments.

These are:

– the abolition of the Seanad;

– a new “list” system for selecting 15 TDs;

– new constitutional recognition given to four Dáil committees;

– reduction of the President’s term of office from seven years to five;

– the introduction of a public petition mechanism for the Dáil.

There is much worth examining in this proposal and this post does not intend to do all of the necessary work. In Fiona’s earlier post, she noted that Fine Gael’s constitutional proposals had the whiff of New Labour in 1997 about them. There are certain key similarities: both parties have/had spent a long time in Opposition, both sought to revitalise what was/is seen as an ailing political system and both were/are attempting to build a movement to oust an unpopular Government that arguably should have lost office in the previous General Election.

However, there are also key differences. One relates to the substance: whatever the flaws of the Seanad, it does not stand as an affront to democracy in the way that the House of Lords did. And – as I’ll discuss below – the difficulties New Labour have had in reforming Britain’s upper House must serve as a cautionary tale for Fine Gael. New Labour also had the good sense to tiptoe around the monarchy, their 1997 Manifesto declaring – in clearly measured prose – “We have no plans to replace the monarchy.” In 1997 the Head of State in Britain was not fatally unpopular and it is unclear that there is public appetite for reform of the Presidency. Fine Gael’s decision to reduce the President’s term, while not necessarily a criticism of the office or its holder, is nonetheless an electoral and constitutional risk.

A further key difference relates to the opportunity cost of such a reform. In 1997-1999 the New Labour government had time on its hands. It had committed to continuing with the Conservative Party’s spending levels for the first two years of its term – a promise that was key to attracting wavering voters that may have been wary of a tax-and-spend left-wing government. This commitment left New Labour in need of a first-term project and the British constitution was the hobbyhorse of choice. There seems little prospect of the public in Ireland fearing a tax-and-spend government in the next General Election, it seems much more likely that the worry will be about tax-and-cut. However the economic debate plays out, it is clear that the principal priorities for the next government will be creating jobs, attracting investment and managing a painful and slow economic recovery. With so much to do, is there time for an overhaul of the Constitution?

One might argue that a good Government would make time. Even if the principal electoral concern is the economy, lasting economic and social recovery may very well need to be built on sounder political grounds. As Terry Eagleton notes (reviewing Fintan O’Toole’s Ship of Fools):

The old-style Tammany Hall politics of power and prestige, along with what O’Toole sees as an anarchic attitude in business to law and morality, were part of what caused the rot.

Whether one agrees with this view (as one suspects Fine Gael would) or not, it is not hard to conceive of an argument that reform of the political system for the better is in the long-term economic interests of the country (and that is even before one considers arguments as to the need for greater social justice to couple economic growth). However, this is where the New Labour experience offers clear lessons for Fine Gael and the country: the dangers of piecemeal reform.

Consider some of the early reforms introduced by New Labour:

• The establishment of devolved assemblies and parliaments in Northern Ireland, Scotland and Wales (1998).
• The incorporation of the European Convention on Human Rights by the Human Rights Act (1998).
• The ousting of (almost all of) the hereditary peers from the House of Lords (1999).
• Regulation of political parties by the Registration of Political Parties Act (1998).
• The introduction of an elected mayor in London and the reform of local government (1999/2000).
• The adoption of new legislation on Freedom of Information (2000).

There have been further reforms, but it is the early zeal that we are considering here. Of the above initiatives, arguably only the first has resulted in lasting constitutional change for the better. Devolution in Scotland has been a resounding success (for Scotland at least), the Irish institutions appear to be secure (if not yet stable) and after initial uncertainty, Welsh devolution appears to be embedding itself in the public and political consciousness. However, even devolution, Labour’s true constitutional success, is problematic: it makes the absence of ‘English devolution’ and the related ‘West Lothian’ question more pertinent than ever.

The usefulness and stability of the other reforms are less certain: the Human Rights Act was enacted with great fanfare and been an endangered statute ever since; after the initial headrush of ousting the hereditary peers, House of Lords reform has foundered on the rock of British constitutional conservatism; the operation of the Freedom of Information Act as a tool of transparency has been resisted by the government; and other political reforms, at central and local levels, have been undermined by two authoritarian Prime Ministers and a discredited political culture for which the expenses scandal has been but the tip of an iceberg of disrepute.

Of all of the ill-fated reforms, it is the House of Lords that offers the most obvious and telling parallels for Ireland. However undemocratic, the House of Lords is a cog in the British constitutional machine. One cannot simply remove a cog and hope that the machine continues to operate. Recognition of this fact – and fears of political repercussions – have petrified both Government and Opposition and prevented complete reform of the House. The absence of such reform also gives lie to the idea that New Labour had any real plans for a ‘New Britain’. Instead, their constitutional reforms can best be seen as a mix of political legacies (devolution and the Human Rights Act were promises of the late John Smith) and opportunism (in removing the hereditary peers New Labour swung the balance of the House away from an overall Conservative majority).The result is a collage-like constitution that offers no clear picture.

One can’t help but wonder if Fine Gael’s promise of a ‘New Republic’ is any better than Labour’s ‘New Britain’. There is no doubt that there are parts of the Constitution in need of reform (this writer would start with the first line of the Preamble which claims that all authority flows from the Most Holy Trinity). However, of thirty amendments to the Constitution that have been considered by the people, I can only identify five that were accepted and are operational reforms of the political system (Fourth, Seventh, Nineth, Seventeenth and Twentieth) and several of these are quite modest. DeValera’s constitution is far from perfect, but it does establish a system of government for the country. Any serious overhaul must do the same.