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.
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.
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.