“Constitutional Convention: A progressive initiative with genuine potential
I took part in a discussion entitled “A Broad Agenda of Reform for the Constitutional Convention” at this year’s MacGill Summer School in Glenties, Co Donegal. Below are my opening remarks to the School.
I’m honoured to have been invited to address the MacGill Summer School on the theme of the forthcoming Constitutional Convention – a body to which I have been nominated by the Leader of the Labour Party and Tanaiste Eamon Gilmore. I look forward very much to the commencement in the autumn of this important work.
The Constitutional Convention is one element – a central element I hope – of a dynamic process of reform to reinvigorate our governance and our democratic institutions.
There has been some debate about how broad the agenda is for the Convention – hence the topic for this session presumably. I would like to address that issue, and to argue that the agenda is in truth quite broad. Certainly it is very relevant to many of our contemporary preoccupations in Ireland today.
But it is necessary to acknowledge at the outset that the agenda for reform – and even the agenda for constitutional reform – is not all being encompassed in the Constitutional Convention. Thus, it is planned to proceed soon with a referendum on children’s rights, and a referendum on the abolition of Seanad Eireann – both being manifesto commitments given by the government parties, and others, in last year’s general election. And there have been other announcements within the past week concerning the proposed re-organisation of the Courts under Article 34 which will necessitate a referendum, as would proposals to alter the operation of Article 26 of the Constitution – the reference of a Bill by the President to the Supreme Court for adjudication as to its constitutionality.
Much necessary reform does not require Constitutional change
It is also critical to note that a very great deal of the reform that’s needed in our democratic institutions, and in our ways of conducting public business, does not require constitutional change at all. A huge amount can be achieved through primary legislation or even in some cases through changes in parliamentary practice and Standing Orders, for example by re-organising, and by giving priority to Committee work in the Oireachtas:
• Parliamentary control of the legislative process. The Finance Committee has just produced a report on the forthcoming whistle blowing legislation and will do the same for lobbying legislation; the Justice Committee did extensive and really valuable work on the Insolvency legislation. All of this requires commitment and resources and it requires government Ministers – and the civil service – to take this process seriously.
• Funding of political parties – significant change is being implemented here, in a manner that does not require constitutional change. This will herald a completely new and significantly more transparent regime for the regulation of political donations.
• Strong anti-corruption legislation has been published by the Minister for Justice in the last few weeks, to replace outdated and grossly inadequate legislation dating from 1889.
• Participation of women in politics – A Bill dealing with political donations and measures to encourage greater participation of women in politics passed by the Oireachtas last Friday. (This issue is also on the agenda of the Convention.)
• Freedom of Information legislation. The National Asset Management Agency, An Garda Síochána and the Central Bank are among statutory bodies to be subjected for the first time to public scrutiny under updated Freedom of Information legislation, which will also reverse changes made by the previous government to this pioneering legislation introduced by Eithne Fitzgerald in 1997.
• Local government. There are few areas of change more necessary or desirable; it seems to me, than genuine local government reform. As is often said, we essentially have a system of local administration in Ireland; when what we need is local government. This could be the single most significant step towards real citizen participation in decision-making, giving people a real stake in their communities and in their localities. This can, and must happen, and it does not require constitutional change.
So, we already have an energetic programme of legislative change, and we are to have more, together with some constitutional amendments to which I have referred which are not part of the Convention process.
I would acknowledge too that there are other reforms that we should consider and implement: better education for citizenship, for example, and real efforts to involve citizens not just at voting time, but on a continuing basis in the democratic life of the country. I think this has been one of the valuable contributions of groups like ‘Claiming our Future’ and ‘We the Citizens’, and I hope that the very existence of the Convention will help encourage real democratic engagement and participation by citizens, on a permanent basis, and not just post-crisis.
The Constitutional Convention then is one element – a central element I hope – of a dynamic process of reform to reinvigorate our governance and our democratic institutions.
The yearning for answers and the hunger for reform
In the wake of the economic crisis, there have been many calls for reform and change – even for a “new Republic”. Much of this clamour for change is entirely justified. The citizens of Ireland have witnessed, and are experiencing, the most traumatic economic crisis since the State was formed. Alongside this, there has been a near-collapse of public trust in the very ability of the State, its institutions and its “elites”, to cope with the challenges with which they have been faced.
I don’t think it’s any exaggeration to state, as the Tanaiste did here on Sunday night, that for a time our crisis really was an existential one: Could the country go down? How close to the brink did we stand? Would we survive?
That’s the context, and it is an awesome one. But once we recognise the necessity for change – some change, perhaps fundamental change, we then have to ask ourselves, especially when we are referring to our Constitution: what needs to change? What steps, or what new provisions or laws would guard against a recurrence of failure, against future abuses of power, against political corruption, incompetence and economic mis-management? And are these changes needed to the Constitution, or can they be achieved otherwise?
And we equally have to ask what steps, what changes, would re-awaken in the citizens of Ireland the kind of vigilance, the kind of democratic participation and the kind of involvement in their own affairs that has seemed to be so absent for so long? The kind of engagement and love of country that seemed to motivate and sustain previous generations.
It has been this lamentable absence of collective engagement in our own society and democracy that has so bedevilled our country in recent decades, it seems to me. We have to ask whether the steps we need to take require us to change the Constitution, or whether we can better achieve these ends through changes to legislation, either through those that are already happening, or through other changes that could be progressed.
Bunreacht na hEireann
Much has been said and written about our Constitution. Many believe, as I do, that it is an impressive and enduring document, suffused for the most part with vibrant democratic principles. It also sets out the basic institutional framework of the State. When we say that we have been let down by this structure, or that its weaknesses have contributed to our current plight, it is incumbent upon us then to go on to specify which structures, and which aspects are problematic, and require change.
We cannot conjure a perfect economic, political or democratic dispensation by constitutional fiat – still less by the simple expedient of “announcing” a Second Republic.
Here I am reminded of something the late British historian Tony Judt observed in his anthem for social democracy, “Ill fares the Land”:
“…you cannot institutionalize trust. Once corroded, it is virtually impossible to restore…it needs care and nurturing by the community – the collectivity…”
What we need is a careful deliberative process through which we can assess relevant provisions of the Constitution, and then bring forward recommendations that make sense, and that will command a wide degree of consensus. This is the greatest value of the Constitutional Convention: the very process itself can help to restore trust and confidence. It is an opportunity that must be grasped – and grasped enthusiastically.
The agenda for the Convention
There has also been some debate about the relatively limited agenda set out in the resolution of the Dail and Senate.
Firstly, it must be acknowledged that the agenda is capable of being extended by the Convention itself, once the initial eight topics are dealt with.
It has been said that these listed topics are not weighty. I respectfully disagree. It simply cannot be said that the Dail electoral system is anything other than weighty and critical. Many have made the case that our electoral system is overly reliant on localism, and that it militates against a parliament that is more strategic, one that is more focused on broad economic policy-making and oversight. It is often argued that the principal measure of a successful TD is his or her reputation for “getting things done for the constituency”, and for attentiveness to the demands of individual constituents, rather than dedication to the broader agenda.
I know there are different views on this, and I am caricaturing the debate somewhat glibly here. But there is no doubt that it is a critical issue, and worthy of serious consideration, which it will now receive in the Convention.
And bear in mind that if we are in favour of reform to how our TDs are elected – and I profess myself to be so – we can be sure of one thing: we are very unlikely ever to achieve electoral reform if the issue is left to politicians. Involving the citizens of Ireland in dealing with this issue could be enormously revealing and constructive.
“Provision for same sex marriage” is also on the list. This is a hugely relevant and important question in its own right. It also has the value of opening up for discussion (though we don’t know as yet how expansive that discussion can be) of Article 41 of the Constitution, the Family clause. Here, as in other respects, the Convention will have the benefit of earlier expert reports, including the 1996 Constitution Review Group. It will offer a timely opportunity to explore how the rather limited definition of the family contained in the current Article 41 might be amended and modernised, as well as removing such doubt as may exist as to the constitutionality of allowing same-sex marriage.
The place of women in the home was for many years the most controversial; some would say offensive provisions of Bunreacht na hEireann.
41. 2.1 “…the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
41. 2.2 The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home”
This is also one of the matters expressly listed for the agenda of the Convention. Again, it raises Article 41, which is one of the most challenging Articles in the Constitution for reformers down through the years.
The wording for a children’s rights amendment is to be published, I understand, in the autumn, with a view to a referendum being held. While it is not clear as yet how (or whether) the proposed wording will impact on Article 41, it certainly seems to me that the Convention will be able to engage in a very challenging, and I hope rewarding assessment of the Family provisions of our Constitution in the context of a radically changed Ireland. This will be a terrific opportunity.
Past preoccupations endure – now we can address them
In this debate, we are looking forward. However, sometimes it is instructive to cast our eyes back to see what were the preoccupations of earlier generations, in particular with regard to the Constitution. It is interesting to note that the question of the role of women in the home was one of the two most controversial issues at the time of the enactment of the Constitution. This is clear from Dermot Keogh’s “The making of the Irish Constitution” and it comes through also in Gerard Hogan’s immensely impressive “The origins of the Irish Constitution”, a collection of the principal documents associated with the drafting of the 1937 Constitution about to be published by the Royal Irish Academy.
The other main issue of controversy in public debate at the time, by the way, was the Presidency. This too is on the agenda for the Convention: reducing the Presidential term from 7 to 5 years, and considering whether citizens resident outside the State should have the right to vote in Presidential elections. In addressing these arguably narrow questions, the Convention will inevitably find itself debating the role and functions of the President, as to do otherwise would be to look at these two issues in the abstract. As I mentioned earlier, the Minister for Justice last week announced the government’s intention to bring forward proposals regarding Article 26 references and some related powers. Some saw this as by-passing the Convention but I do not necessarily agree, and neither incidentally did the Taoiseach when he addressed that issue in the Dail last week.
I am very open to the case that has been made by Amnesty, and by others, that we should look to incorporating so-called socio-economic rights in the Constitution. Whether that debate can be joined in the Convention I simply cannot say, but I myself would have no difficulty with it, only to say this. Some politically contentious questions – so-called tax and spend issues – are not capable or amenable of resolution by way of constitutional amendment. Rather, they are quintessentially political controversies that belong in the political domain, and can only be resolved through debate and contest in the community.
A debate is raging all over the world now about the runaway power of international global finance, and the seeming inability of democratic governments and international organisations to grapple with this phenomenon. That is a challenge that requires political courage, political action, and political change.
So too are the fundamental issues of public services, health, education, welfare and distribution. These rights and entitlements, which as a social democrat I value higher than anything, together with the necessity for a fair and just taxation system to fund them, belong essentially in the political arena.
What we need is to restore faith in our politics, and ultimately in ourselves. The Constitution and the Courts can play a role in this, but they cannot supplant the necessity for democratic engagement by the people in their own affairs.
In conclusion, I strongly urge people to look to what can be achieved by this strikingly innovative and progressive initiative. Rather than carping at what has not been included, let’s look at what is. I cannot imagine that anyone could reasonably argue, at least at this early stage, that the initiative should not be given a fair wind.
And I cannot imagine, either, that the government would or could ignore recommendations from such a body.
And it’s worth repeating. Never before have we had a convention involving the citizens of Ireland – themselves debating and deliberating upon their Constitution. And if I may return to Tony Judt in conclusion. He spoke of an “inability to imagine a different sort of society”, believing that “our disability is discursive”.
With this opportunity, we can discuss. And we can change. Ladies and gentlemen this really is worthy of all our support.