Yes to Court of Appeal and change to One-Judgment Rule

I will then vote Yes to establish a Court of Appeal (the Thirty-third Amendment of the Constitution Bill). Over the past decade, there have been considerable and growing delays in the Supreme Court hearing of appeals from the High Court. Our Supreme Court deals with much more than its equivalents in other countries. In our constitutional system, questioning pertaining to constitutional interpretation must take precedence there, such that many civil matters are delayed in their appeals from the High Court for up to four years. Ireland has been found liable in both the European Court of Human Rights and European Court of Justice on the grounds of unreasonable delay. Having a speedy process in civil cases will set us in line international obligations on issues such as extradition and child abduction, while also making us more attractive to multinational firms, who often have concerns about lengthy litigation. These problems were detailed by Susan Denham, now Chief Justice, in 2006 in the Judicial Studies Institute Journal.

The same amendment will also remove the requirement on the Supreme Court to deliver only one judgment in cases challenging the constitutionality of laws. In cases not relating to the constitutionality of laws (e.g. high-profile cases AG v. X. on abortion or AG v. Hamilton on cabinet confidentiality), and in cases relating to laws enacted before 1937 (e.g. Norris v. AG), dissenting judgments do contribute to an understanding and development of the law, without undermining the authority of the majority judgment. These development and the value of dissenting could not have been foreseen when de Valera proposed this change as one of many in the Second Amendment in 1941. (It will not amend this in the case of referrals by the president before a bill is signed, presumably on the grounds that as such a law cannot after be challenged on constitutional grounds, diverging or dissenting judgments would not be beneficial.)

Yes to Abolition of Seanad Éireann

I will be voting Yes this Friday to abolish the Seanad (the Thirty-second Amendment of the Constitution Bill). I have tried to encapsulate across different platforms the various reasons I have for doing so over the course of this campaign, over different platforms. In short, in these closing days, I hold that in a country like Ireland, without clear and sharp cultural or geographical divisions, we should have a single parliamentary chamber composed of representatives elected by us to pass laws on our behalf. This is something I first considered around ten years ago, and since then it had always seemed like a common sense proposal. We hear of many ideas for its reform, but that casts it as a house in search of a purpose. What reforms are proposed are ones that should be delivered for the Dáil, as our house of representatives. And even though I don’t believe political reform should stop here, I think it is a worthy reform in itself, to remove a house elected by a privileged section of society in a proportion of university graduates, of senators I’d barely recognise elected by Oireachtas members and councillors, and 11 who may or may be not be decent senators depending on the whim and needs of the Taoiseach.

I was delighted when Enda Kenny announced this policy soon in 2009, not long after I joined Fine Gael, and that he stuck with this commitment through the election campaign and into government. I would not have had the primary focus on cost that we saw from Fine Gael posters, but I think we have had a broad debate. Whatever the result on Friday, at least the people will have had their say.

Concerns about Protection of Life During Pregnancy Bill

The Protection of Life During Pregnancy Bill is within the constraints of Article 40.3.3° and it is right that thirty years after its insertion into the Constitution, there will be legal clarity for women and for doctors. It was not good enough that this was simply regulated by Medical Council guideline. As Justice McCarthy wrote in 1992 in a concurring judgment to Attorney General v. X,

I think it reasonable, however, to hold that the People when enacting the Amendment were entitled to believe that legislation would be introduced so as to regulate the manner in which the right to life of the unborn and the right to life of the mother could be reconciled. In the context of the eight years that have passed since the Amendment was adopted and the two years since Grogan’s case the failure by the legislature to enact the appropriate legislation is no longer just unfortunate; it is inexcusable. What are pregnant women to do? What are the parents of a pregnant girl under age to do? What are the medical profession to do? They have no guidelines save what may be gleaned from the judgments in this case. What additional considerations are there? Is the victim of rape, statutory or otherwise, or the victim of incest, finding herself pregnant, to be assessed in a manner different from others? The Amendment, born of public disquiet, historically divisive of our people, guaranteeing in its laws to respect and by its laws to defend the right to life of the unborn, remains bare of legislative direction.

I do have a concern about the effect of the provisions for suicide. I do think that a woman whose pregnancy is contributing to her suicidal ideation should be allowed to have an abortion. But it is also possible that someone could overcome their feelings of suicide while still being in a condition of severe mental or physical distress. Both she and her doctor might still believe it the best thing for her well-being that she receive an abortion, but it would no longer be an option.

The provision of abortion in the case of suicide ideation means that a woman would end up confirming to herself, to her own GP, to two consultant and to an obstetrician that she may her take her life. This burden means that in most instances, a woman would most likely still feel it preferable to travel obtain an abortion. What has not received enough focus is the mental effect it would have to confirm this feeling again and again, that it could worsen the impact, and knowing that if she were to find that she was no longer suicidal, she could no longer obtain an abortion. Her GP would ordinarily attempt to alleviate her condition of suicidal ideation; but in this case, while he believed that an abortion was in her best interest, he would feel conflicted as to whether he should do so.

This situation is a result of the constraint the legislature is in, to act within Article 40.3.3°, specifically as interpreted by the Supreme Court in Attorney General v. X. Reading the judgment, which includes extracts from the oral proceedings, it did seem clear to me from a number of instances that the girl in question had entertained serious thoughts of suicide, but it also struck me that it was not primarily on that condition of suicide ideation that John Rogers, representing X, made his defence. It was on her more general case and circumstances that he made the case against an injunction preventing her from travelling to England to obtain an abortion.

This effect then reinforces for me a need for a referendum to remove Article 40.3.3°. This bill, and what I believe to be a generally unsatisfactory position, is within that provision.

Removing this Constitutional provision would not introduce abortion; it would rather remove the constitutional prohibition on doing do. I do not imagine that any likely government in the near future would introduce a liberal regime, but it would be a matter for Dáil debate and party negotiation as it is in most other countries. The Oireachtas would have the freedom then to consider various provisions, and review and revisit these laws after perceiving their application.

Outcome of the abortion bill

The Heads of the Protection of Life During Pregnancy Bill seem to fulfill minimal requirements of legislation in line with the ruling in Attorney General v. X.

In the wording of the first paragraph of Article 40.3.3°,

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

there are two clauses that the government had to consider in drafting this legislation, ‘equal’ and ‘as far as practicable’. It also had to be considered the ruling of the Supreme Court that ‘the risks to the life of the mother which should be considered by the Court included a real and substantial risk that the mother might commit suicide’.

In all cases, the meaning of Constitution is what the Supreme Court says it is. Article 34.4.5°–6° is itself explicit in this regard. Their ruling in 1992 meant that a risk of suicide has been grounds for abortion, not just from that date, but from the insertion of 40.3.3° into the Constitution in 1983. A doctor could have taken it upon themselves to administer an abortion in response to a diagnosis that there was a real and substantial risk that a woman might commit suicide. This legislation does not grant or remove additional rights to either the mother or the unborn; legislation tightly within the framework of Supreme Court interpretation of the Constitution cannot do this.

It may not have been the only measure permissible; someone might reasonably ask whether the government’s defence in D. v. Ireland, that there could be a recourse under Irish law for a termination in the case of fatal foetal abnormalities, could have been included in this bill. There might also have been flexibility in terms of the nature and composition of panels in the bill.

There will be some members of Fine Gael who break ranks to vote against this. The debate in the coming weeks will show how many they are, but I expect that the bill will come into law in a form not that far from this.

I do not expect that without further constitutional amendment, this bill lead will lead to more than a minimal increase in the number abortions performed in Ireland. Unlike measures in Britain and California from 1967, this bill refers only to situations that threaten the life, as distinct from the health, of the mother. It is not a small thing for a woman to declare that she is suicidal, and it is not something that the medical system takes lightly. The consequences for her personal freedom after such a declaration would be such that for many women seeking to terminate their pregnancy, travelling to Britain would be a preferable outcome.

While campaigners against abortion have resisted legislation in line with the X Case till now, and sought to amend the constitution in 1992 and 2002 to overturn it, I would expect that to largely die away as a focus, given the small scale of the change. Similarly, while legislation for the X Case has served as focus point for those seeking for more widespread access to abortion, that will shift to an amendment to remove 40.3.3, as advocated this week by Labour Cllr Jane Horgan-Jones, which would make legislation on abortion a matter for the Oireachtas, and not a constitutional matter. However, I cannot imagine that referendum occurring for quite some time.

How the Fine Gael lost the Dáil vote on abortion in 1983 while in government

The events of the past week prompted me to look back to see how Article 40.3.3° was proposed in the Dáil, knowing that there was an odd circumstance in its passing as the only constitutional amendment that was not a government amendment. The speeches are interesting to read as a snapshot into Ireland of 1983, and Oliver J. Flanagan’s contribution stands out in that respect, as does the speculation from Fianna Fáil’s Dr Seán McCarthy as to whether the Taoiseach had been influenced by the “pro-abortionists in Young Fine Gael”.

Though further amended in 1992 to protect the freedom to travel and receive information, the substantive clause as still exists was inserted by the Eight Amendment to the Constitution Act, 1983,

3º The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

Dr Garret FitzGerald was then leading a coalition government of Fine Gael and Labour, but only 13 TDs from the two government parties actually voted for that wording.

The wording above was drafted by the Pro-Life Amendment Campaign. There had been fears since the US Supreme Court had found a right to abortion in Roe v. Wade in 1973, and the Pro-Life Amendment Campaign was further mobilised in the aftermath of Pope John Paul II’s visit to Ireland in 1979. By the third election between June 1981 and November 1982, they had secured commitments from both Fine Gael and Fianna Fáil to introduce this amendment. The Eighth Amendment to the Constitution Bill was first moved in the dying days of the Fianna Fáil government in November 1982.

Fine Gael initially accepted this wording and in the Programme for Government with Labour, it was agreed that Labour would have a free vote on the bill. It was moved by Michael Noonan as Minister for Justice in February 1983.

Fine Gael’s alternative wording

Peter Sutherland, the Attorney-General, subsequently advised of problems with the wording, and in April, Michael Noonan moved an alternative amendment,

Amendment One

3º Nothing in this Constitution shall be invoked to invalidate, or to deprive of force or effect, any provision of a law on the ground that it prohibits abortion.

This wording would have meant that the current legislation prohibiting abortion, the Offences Against the Person Act, 1861, could not be deemed unconstitutional, and similarly for any possible subsequent legislation on abortion. This would thereby prevent a Roe v. Wade–like decision in the courts.

At the same time, a law to allow for abortion would also be consistent with this alternative amendment. This led to splits in both government parties. In Fine Gael, TDs who maintained their support for the original wording abstained in the vote on the alternative amendment. Labour allowed a free vote, and split three ways, between those who supported the original wording, those who opposed any amendment, and those who accepted that there would be a referendum and saw the Fine Gael alternative as at least better the the Pro-Life Amendment Campaign original wording.

Michael Noonan’s reasons for opposing the original wording seem chillingly prescient in the current context. This was on 27 April 1983,

Briefly, those defects are twofold: first, that the expression “the unborn” is very ambiguous; second, that the reference to the equal rights of the mother is insufficient to guarantee that operations necessary to save the live of the mother but resulting in the death of the foetus may continue.

On the first point, it is scarcely necessary to say that objection is not being raised simply on the basis that there is a certain degree of ambiguity. Some ambiguity is probably inescapable — language is not a precise instrument. The criticism in this case is the extent of the ambiguity, a criticism which is strengthened by the fact that it was obviously accepted in order to avoid argument.

On the second point, I would like the record to show very clearly what is being said by way of criticism — and what is not being said. It is not being said that the wording would be held to make the operations in question unlawful. Nobody could say with certainty what interpretation a court might put on the words. What is being said is that, on the ordinary meaning of words, that should be the interpretation and that therefore there must be a definite risk.

Of the opposition parties, Fianna Fáil maintained a strict whip against the alternative and in favour of the original wording and the two Workers’ Party TDs were against any amendment.

With this division between the parties, the amendment proposed by Michael Noonan was defeated by 65 votes to 87.

Between the parties:

• of the 74 Fianna Fáil TDs, 73 voted against;
• of the 70 Fine Gael TDs voted in favour, 60 voted in favour;
• of 16 Labour TDs, 5 TDs voted in favour (Liam Kavanagh, Barry Desmond, Michael Moynihan, Seamus Pattison, Dick Spring) and 10 TDs voted against (Michael Bell, Joe Bermingham, Frank Cluskey, Eileen Desmond, Seán Treacy, Toddy O’Sullivan, Frank Prendergast, Ruairí Quinn, John Ryan, Mervyn Taylor);
• both Workers’ Party TDs voted against, and;
• both Independents, Neil Blaney and Tony Gregory voted against.

Workers’ Party amendments

The Workers’ Party proposed further amendments, but as there weren’t sufficient numbers in the voice vote, the house wasn’t divided, and all these were lost. Even tho they opposed the amendment altogether, they proposed them to make the amendment a lesser harm or clearer in its meaning, and these proposed changes to the original wording highlighted show the nuances to the discussion at the time.

Amendment Two

3º The State acknowledges the right to life of the unborn human being and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

Amendment Three

3º The State acknowledges the right to life of the unborn and, subject to the right of the mother to life and bodily integrity, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

Amendment Four

3º The State acknowledges the right to life of the unborn human being and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable without interference with any existing right or lawful opportunity of any citizen, by its laws to defend and vindicate that right.

Amendment Five

3º The State acknowledges the right to life of the unborn human being and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable without interference with any existing right or lawful opportunity of any citizen, by its laws to defend and vindicate that right. This subsection shall not be cognisable by any Court except in a case seeking to have section 58 of the Offences Against the Person Act, 1861, declared unconstitutional or contrary to any provision of this Constitution.

Original Pro-Life Amendment Campaign wording passes

After all attempts to change the wording had failed, the Dáil then proceeded to vote to retain the initial wording. This was a very strange vote; a vote to amend the constitution in which no Government Minister from the senior party voted. Nearly all the Fine Gael members who voted for the alternative wording abstained on this vote, while those who had abstained on the alternative voting in favour of this one. This motion passed by 87 vote to 13.

Between the parties:

• of the 74 Fianna Fáil TDs, 73 voted in favour;
• of 70 Fine Gael TDs, 8 TDs voted in favour (Michael Begley, Liam T. Cosgrave, Michael Joe Cosgrave, Joe Doyle, Oliver J. Flanagan, Alice Glenn, Tom O’Donnell and Godfrey Timmins), while 2 TDs voted against (Monica Barnes and Alan Shatter);
• of 16 Labour TDs, 5 voted in favour (Michael Bell, Frank McLoughlin, Frank Prendergast, John Ryan and Seán Treacy) and 8 TDs voted against (Joe Bermingham, Frank Cluskey, Barry Desmond, Eileen Desmond, Toddy O’Sullivan, Ruairí Quinn, Dick Spring and Mervyn Taylor);
• both Workers’ Party TDs voted against;
• and of the Independents, Neil Blaney voted in favour and Tony Gregory voted against.

The Bill proceeded to the Seanad where, after the three Trinity Senators, Catherine McGuinness, Mary Robinson and Shane Ross, were unsuccessful in pursuing amendments, it passed, with only Fianna Fáil Senators voting in favour.

Referendum

The referendum was held on 7 September, 1983. The leaders of the two government parties, Dr Garret FitzGerald and Dick Spring, both called for a No vote; the leader of the opposition, Charlie Haughey, called for a Yes vote. It was passed by 67% of the electorate, carried in all  but five constituencies (all in Dublin), on a turnout of 54%.

What is the point of the constitutional convention?

See Constitution.ie for the Constitution of Ireland and articles referenced. Tho for some reason, the downloadable version is missing Amendments passed since 2004.

I unfortunately have to agree with most of what Conor O’Mahony wrote in The Irish Times (‘This so-called constitutional convention is a charade’) and with Matthew Wall in agreement with him on PoliticalReform.ie (‘Confessions of a demoralised political scientist’). The proposed constitutional convention is a far cry from the Philadelphia convention in 1787 O’Mahony references. At this convention, delegates from the thirteen states rewrote the Articles of Confederation into an entirely new constitution, which though subject to 27 Amendments since its adoption in 1787, in the elements of the divisions and roles of the branches of government, has remained the broadly the same since then.

The Programme for Government agreed in March 2011 specified a number of issues for the convention:

• Review of our Dáil electoral system.
• Reducing the presidential term to 5 years and aligning it with the local and European elections
• Provision for same-sex marriage.
• Amending the clause on women in the home and encourage greater participation of women in public life.
• Removing blasphemy from the Constitution
• Possible reduction of the voting age.
• Other relevant constitutional amendments that may be recommended by the Convention.

Of course, the last item leaves the convention wide open, but there has been little to suggest that this will be a wide-ranging overview of the Constitution. This seems clear from the two items first on the agenda: whether to reduce the voting age from 18 to 17; and whether to reduce the presidential term from 7 years to 5 years. Satire could hardly devise two less pressing amendments.

I would vote against a reduction in the presidential term, unless it was in the context of a redefinition of the role. Reading Tom Reddy’s The Race for the Áras, I was reminded of the whole drawn-out distraction of last year. There are reasonable proposals for amendment on the president, making it one term only, or changing the nomination process, but having more frequent elections is not one.

I have an open mind on the voting age, though I think it would make sense to lower the voting age for local elections first, which does not require a referendum.

I would obviously welcome a referendum on same-sex marriage, and if it’s to have an airing in the constitutional convention first, so be it. But ultimately, it will be a fairly simple amendment, adding a subsection, “No two people may be excluded from marriage by reason of their sex”, to Article 41.3.

Section Article 41.2, “… her life within the home …”, should be deleted. Let’s not try to devise a statement on family life and the roles of parents that could in turn seem out-dated in a few decades’ time. This is really not the sort of thing for a constitution in any case. And delete the word “blasphemous” in Article 40.6.1° i.

So what should it discuss?

So of all the enumerated issues, that leaves the electoral system. This is the only one of these proposals that to my mind merits discussion by a convention, rather than a simple yes/no proposal that could be people to be debated like any other referendum.

Our system of election to the Dáil of proportional representation by single transferable vote is often blamed for clientelism and localism in Irish politics, leading to a subordination of national concerns to local issues. Would the Convention will reach a conclusion other than that of the Joint Oireachtas Committee on the Constitution two years ago, to keep the current system? Perhaps, as the membership of that committee inevitably had a status quo bias, having been elected under the current system.

What I don’t understand is why the abolition of the Seanad is not on the agenda. This is the sort of issue that would actually benefit from being discussed in a convention. There are references to the Seanad throughout the Constitution. Of the 141 Fine Gael and Labour Oireachtas members, I’m sure there is a considerable number, even if a minority, who would have doubts about the merits of this proposal. I would be in two minds on whether we need a second chamber. Finland, with a comparable population to Ireland’s, has a unicameral chamber; Sweden and Portugal with twice our population also survive with just one chamber. Yet surely there is a benefit to legislation being heard in more than one chamber. There are problems with the current Seanad and I have problem with the democratic legitimacy of the current membership.

I would certainly be against any abolition of the Seanad without a corresponding reform of the role of the Dáil and its committees. The idea behind last year’s failed amendment to allow the Oireachtas to conduct inquiries was not without merit at some level. But it made no sense to rush it within it in the first few months of the government when this constitutional convention was due to happen. The Convention should also consider ways in which the balance of power between the executive and the legislature might be rebalanced.

I understand that Enda Kenny has a personal attachment and commitment to putting the abolition of the Seanad to the people, but we would surely benefit from considering this proposal in the context of the other institutions of government.

The Constitutional Constitution is a good idea, but let’s have one that matters, where none of the fundamental institutional issues which are being discussed in amendments to the constitution are left out of its consideration.

Letter to the Editor: Preparing for European treaty vote

Published in The Irish Times, 29 May 2012

A chara, – Seán L’Estrange (May 28th) voices concern about the wording of the amendment. He will be reassured to know that the wording is no different to the form that has routinely been used to allow the State to ratify European treaties. In 1972, we voted to insert a new Article 29.4.3°, “The State may become a member of the European Coal and Steel Community (established by Treaty signed at Paris on the 18th day of April, 1951), the European Economic Community (established by Treaty signed at Rome on the 25th day of March, 1957) and the European Atomic Energy Community (established by Treaty signed at Rome on the 25th day of March, 1957). No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State.”

On Thursday, we are being asked to ratify only the treaty agreed on March 2nd of this year. Any further changes which would conflict with our Constitution would have to be put to the people, as was done seven times between 1972 and this year’s referendum, on each occasion with a similar form of words. – Is mise,

WILLIAM QUILL

Bray, Co Wicklow.

Would the Treaty be inserted in our Constitution?

No.

This is a claim we’ve heard from the No side. What we are doing is allowing the state to ratify the Treaty, in the same manner as every previous Treaty. It was only last night when discussing this socially that the significance of their claim, and how it diverges from the actual amendment, became clear to me.

Let’s take Article 29.4 as it stands:

1°	The executive power of the State in or in connection with its external relations shall in accordance with Article 28 of this Constitution be exercised by or on the authority of the Government.
2°	For the purpose of the exercise of any executive function of the State in or in connection with its external relations, the Government may to such extent and subject to such conditions, if any, as may be determined by law, avail of or adopt any organ, instrument, or method of procedure used or adopted for the like purpose by the members of any group or league of nations with which the State is or becomes associated for the purpose of international co-operation in matters of common concern.
3°	The State may become a member of the European Atomic Energy Community (established by Treaty signed at Rome on the 25th day of March, 1957).
4°	Ireland affirms its commitment to the European Union within which the member states of that Union work together to promote peace, shared values and the well-being of their peoples.
5°	The State may ratify the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon on the 13th day of December 2007 (“Treaty of Lisbon”), and may be a member of the European Union established by virtue of that Treaty.
6°	No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State, before, on or after the entry into force of the Treaty of Lisbon, that are necessitated by the obligations of membership of the European Union referred to in subsection 5° of this section or of the European Atomic Energy Community, or prevents laws enacted, acts done or measures adopted by— the said European Union or the European Atomic Energy Community, or institutions thereof, the European Communities or European Union existing immediately before the entry into force of the Treaty of Lisbon, or institutions thereof, or bodies competent under the treaties referred to in this section, from having the force of law in the State.
7°	The State may exercise the options or discretions— to which Article 20 of the Treaty on European relating to enhanced cooperation applies, under Protocol No. 19 on the Schengen acquis integrated into the framework of the European Union annexed to that treaty and to the Treaty on the Functioning of the European Union (formerly known as the Treaty establishing the European Community), and under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, so annexed, including the option that the said Protocol No. 21 shall, in whole or in part, cease to apply to the State, but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas.
8°	The State may agree to the decisions, regulations or other acts— under the Treaty on European Union and the Treaty on the Functioning of the European Union authorising the Council of the European Union to act other than by unanimity, under those treaties authorising the adoption of the ordinary legislative procedure, and under subparagraph (d) of Article 82.2, the third subparagraph of Article 83.1 and paragraphs 1 and 4 of Article 86 of the Treaty on the Functioning of the European Union, relating to the area of freedom, security and justice, but the agreement to any such decision, regulation or act shall be subject to the prior approval of both Houses of the Oireachtas.
9°	The State shall not adopt a decision taken by the European Council to establish a common defence pursuant to Article 42 of the Treaty on European Union where that common defence would include the State

A Yes vote would add a new subsection 10°:

10°

The State may ratify the Treaty on Stability, Co-ordination and Governance in the Economic and Monetary Union done at Brussels on the 2nd day of March 2012. No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by the obligations of the State under that Treaty or prevents laws enacted, acts done or measures adopted by bodies competent under that Treaty from having the force of law in the State.

This follows the pattern of previous amendments allowing the state to ratify European Treaties (previous amendments allowed the state to ratify the Treaties of Paris, Rome, Maastricht, Amsterdam, Nice and the Single European Act were superseded by the Lisbon Treaty). The Treaty itself does not become part of the Constitution of Ireland; neither do its specific terms about budgetary constraints.

Take the Lisbon Treaty for example. In 2009, after the referendum, the Twenty-Eighth Amendment of the Constitution Act became law. This brought Article 29.4 to where it stands above. But had the government done nothing else, we would not be bound by the Lisbon Treaty. It was only when the European Union Act 2009 was subsequently passed that the Lisbon Treaty became part of Irish law.

It will very much be in a similar manner if the amendment passes the referendum on 31st May.

Fine Gael must move on equal marriage at this Ard Fheis

Most of the Fianna Fáil Ard Fheis meant little to me. There was nothing in Micheál Martin’s speech that made me feel that the party was on the cusp of a recovery or that they were going to offer a particularly distinctive voice. I acknowledge Martin’s apology on behalf of his party, but he could have made it stronger by referring directly to his time in cabinet. Philip O’Connor draws attention to his equivocations in this piece in The Journal. I found the whole speech, with all the time devoted to bins in Dublin, a little underwhelming. But of course I’d think that, wouldn’t I?

But I did notice that the Ard Fheis passed motions supporting marriage equality and for same-sex couples to be considered for adoption. They are to be commended for this, as is Martin for making his personal support clear on The Week in Politics last night. I noticed a lot of commentary on Facebook which was quite cynical in relation to this. But I don’t think it reflects any cynical attempt to gain votes which they weren’t interested in while they were in power, rather the very rapid social change on this matter. This is a growing norm, and as we look to what exists in other countries and in US states, very little has been offered on the other side.

I see no substantial reason that we would not see Fine Gael move in the same way. We might have a reputation because some of prominent members as being conservative and there is a Christian democratic tradition, but doesn’t necessarily mean an opposition to progress on this front. I’ve pointed on a number of occasions to the speech Charlie Flanagan made during the civil partnership debate. Others too from Fine Gael spoke during that same debate who stated explicitly or indirectly that civil partnership would only be a step towards equality, such as Dr James Reilly, Deirdre Clune and Simon Coveney, who gave a very honest speech on how he changed his own mind to support marriage. Of the 2011 intake, Seán Kyne urged Young Fine Gael members to vote for equal marriage at our summer school last July, and he as well as Simon Harris put questions recently to Alan Shatter, Minister for Justice, Equality and Defence, to make provision for children of same-sex couples.

What ultimately matters is that we support this before the referendum, which I expect could be in the second half of this government’s term in office, around 2015, to give time for the Constitution Convention to deliberate on this and its other issues. There will be another Ard Fheis before then, but we should move now, and vote on this at our Ard Fheis at the end of March. We should not let time go as the only party not in support of allowing gay and lesbian couples to marry. We should also give ourselves the chance to include this the party’s submission to the Constitutional Convention.

As this is moving closer to being a reality, we are going to have to start thinking about the specifics of how this change should take place. I had previously followed on the logic of Zappone–Gilligan that this could be achieved legislatively by amending the Civil Registration Act 2004. This view was argued by constitutional lawyers Sen. Ivana Bacik, SC, and Gerard Hogan, now a High Court Justice. But having asked other constitutional lawyers, there is enough doubt on this that I know think it should be put to a referendum. Article 41 as a whole does envisage a heterosexual marriage, as seen in provisions (which should be amended, if not deleted) such as a recognition of the duties of mothers within the home. I have no doubt in my mind that with a good campaign, it can be won.

Considering other provisions in the Constitution prohibiting sex discrimination (Articles 9.1.3° and 16.1.1°–3°), I would propose:

Article 41 of the Constitution is hereby amended as follows:

(a) insert new subsection 2°, “Ní bheidh aon chosc ar phósadh idir bheirt toisc iad bheith fireann nó baineann.”, after section 1° of section 3 of the English text,

(b) insert new subsection 2°, “No two people may be excluded from marriage by reason of their sex.”, after section 1° of section 3 of the English text,

(b) subsections 2° and 3° of section 3 of both texts shall be numbered as subsections 3° and 4°.

Opposition to the cabinet confidentiality referendum held at the last presidential election

At the last presidential election, held 30 October 1997, there was also a ballot to amend the constitution, the 17th Amendment to the Constitution Bill. This was to safeguard the tradition of cabinet confidentiality with explicit exceptions which sought to correct a difficulty which Justice Liam Hamilton found during the Beef Tribunal, when he was unable to question Ray Burke on his recollections of a cabinet meeting. With three tribunals of inquiry established in 1997 alone, this was of increasing importance.

It involved the insertion of a new Article 28.4.3°: –

The confidentiality of discussions at meetings of the Government shall be respected in all circumstances save only where the High Court determines that disclosure should be made in respect of a particular matter –

1. in the interests of the administration of justice by a Court, or
2. by virtue of an overriding public interest, pursuant to an application in that behalf by a tribunal appointed by the Government or a Minister of the Government on the authority of the Houses of the Oireachtas to inquire into a matter stated by them to be of public importance.

The amendment was supported by the five leading parties; the wording had originally been drafted during the lifetime of the Fine Gael–Labour–Democratic Left coalition, and the coalition of Fianna Fáil and the Progressive Democrats, which had been in government since June, carried the amendment bill forward, proposing it in September.

It was opposed within the Dáil by the Green Party, whose John Gormley described the attempt to railroad the amendment as “tantamount to blackmail” (The Irish Times, 28 Oct. 1997).

More notably and contentious politically, it was also opposed by senior figures within the Progressive Democrats. Party founder and former leader, Des O’Malley, then a backbench government TD, criticised the bill in the Dáil as being too restrictive. He spoke (Vol. 480, No. 4, Col. 680) of his own experiences of a Minister, and the effect the amendment would have on the ability of former ministers to write memoirs,

I was a Minister for 13 years and I know it is usual to speak with the Secretary. Will this now be illegal? Frequently it is necessary to speak with a number of civil servants about matters discussed at Cabinet. This is perfectly proper but the current proposal will make it illegal.

I am in the unusual position of having resigned, for good reason, on two occasions from Government. I know the procedure and the trauma occasioned by this. At present there is an absolute right for a Minister to explain to the House why he resigned from Cabinet. However, what is now proposed will preclude him from doing so. This is ridiculous.

It is a tradition in Britain and less so here that former Ministers write their memoirs. Two were written here in recent years by former Deputies Garret FitzGerald and Gemma Hussey. Both quote extensively from what was said and done at Cabinet meetings. In Britain, almost every former Minister writes his or her memoirs, quoting extensively from Cabinet discussions. Bona fide students of history need to know what discussions take place in Cabinet but now they will not be able to find out.

He criticized the rush of the bill, and called for it to be redrafted and delayed until the vote on the Amsterdam Treaty (which ultimately took place in May 1998).

Also outspoken was former Progressive Democrat TD (and future party leader), Michael McDowell. He publicly clashed with Mary Harney, then leader, after he wrote in an article for the Irish Independent that the proposal was “the predictable consequence of running the country out of the hip pocket and handbag of coalition leaders, without consultation or reflection”. He had also around this time criticized Mary Harney for rowing in behind Fianna Fáil and giving formal party support to Mary McAleese as a presidential candidate. He announced on Questions and Answers that he intended to allow his party membership to last until March. Significantly however, he would “not unequivocally rule out any future role in politics” (The Irish Times, 25 Oct. 1997).

The Irish Times editorial line was opposed to the referendum, with a heading “Vote No” to the editorial on the day of the vote and columnists Dr Garret FitzGerald, former Taoiseach, and Vincent Browne also wrote against it. Garret FitzGerald criticized the way that “the best that two successive government have been able to come up with has been a constitutional amendment for just two very specific and limited exceptions, outside of which the dangerous rigidity of Supreme Court’s ruling will continue to operate in a thoroughly perverse way”. He echoed O’Malley’s concerns of the right of resigning ministers to give an explanation, a right of a minister to discuss cabinet with civil servants, and the effect it would have on historians (18 Oct. 1997). Vincent Browne proposed an alternative constitutional amendment, “The confidentiality of government discussions shall not be a matter of Constitutional right but shall be regulated by law” (29 Oct. 1997), and expressed confidence that a further appeal to the Supreme Court would overturn their ruling of 1992.

The Irish Council for Civil Liberties opposed the amendment on similar grounds to those of Des O’Malley and Garret FitzGerald mentioned above (The Irish Times, 27 Oct. 1997).

It would be a stretch to draw any direct parallels between the referendum on cabinet confidentiality and tomorrow’s referendum on Oireachtas inquiries, it is interesting at least to find Michael McDowell, the Green Party, the Irish Council for Civil Liberties and The Irish Times, (and Vincent Browne as a columnist), again on the same side calling for a No vote. (And it was also Brendan Howlin who spoke for the Labour Party in the Dáil supporting the Amendment).

Ultimately, it passed by 52% to 48%, with 5% of votes spoiled. I would imagine that tomorrow’s vote on Oireachtas inquiries will be similarly tight, and again with a high proportion of votes spoiled.

Freedom for religion

This week, the Roman Catholic Archbishop of Armagh, Cardinal Sean Brady, claimed that proposals that would remove the legal exemption from the confessional seal represent a challenge to the right of freedom of conscience and to the basis of a free society.

To my mind, this misunderstands what a free society and the free exercise of religion means in its traditional sense. Or at the very least, is not the most classical interpretation of the republican ideal.

The principle of a free and equal society is characterized well by Atticus Finch, who in response to his daughter’s query of the meaning of democracy in To Kill a Mockingbird answers “Equal rights for all, special privileges for none”. In other words, law must apply to every citizen, without a rational basis for distinction such as age. What is lawful for one, is lawful for another; what is wrong for one person to do, does not become right when done by a group.

What does the principle of not prohibiting the free exercise of religion mean in conjunction with the equal right of all? In the First Amendment to the United States Constitution, where it was first most clearly formulated in a legal context, it is linked with the right of free assembly and free speech,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This should be considered in its context in 1789, and in the context too of John Locke’s Letter Concerning Toleration of 1689. The case then was against the established Church of England and the establishment of particular religions in some of the US colonies. Coupled with establishment had been a legal intolerance for the religious assembly of dissenters.

The free exercise of religion guarantees that a meeting of a community which would not otherwise be challenged cannot be prohibited simply that it is a religious meeting. It does not give a cleric the legal right to evade prosecution for not reporting a crime because of the strictures of canon law, just as it would not give an imam the right to oblige members of their community to be subject to Sharia law to their detriment.

As outlined in the Constitution of Ireland, this is even clearer, with a qualification for public order and morality:

44.2.1°

Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.

It is apparent to me that the code that would allow for the horrific incident outlined in The Irish Times editorial on Thursday, where a priest received absolution on 1,500 occasions for sexually abusing children, lacks basic concepts of morality. But we need not go as far as Australia to find a cleric who would have been charged has a law such as is proposed been in place.

As Carol Hunt recently reminded us, in comparison with another case, Sean Brady was in 1975 party to swearing two children not to reveal that Brendan Smyth had abused them, a man who continued to rape and abuse children until his arrest in 1991, after the Roman Catholic Church moved him from parish to parish. Brady’s fears of the implications of such a new law holding everyone, be they priest or layman, equally accountable for crimes they are aware of, have to be seen in the context of his own digression. It is indeed difficult in this context to understand how he can lay claim to speak with any authority on the subject of morality, or more importantly, how it is that continues to receive an audience.

Dermot Ahern to propose removing Constitutional offence of blasphemy

Good news from Dermot Ahern, who has said in a Sunday Times interview that he now supports holding a referendum to remove the offence of blasphemy from the Constitution, contained in Article 40.6. 1°. i., three months after the blasphemy provisions of the Defamation Act 2009 came into effect. He said that “he never regarded the provision in the new Defamation Bill as anything more than a short-term solution” (via Atheist Ireland).

It’s strange that he didn’t make more of the fact that he did believe it should be removed from the Constitution last year. I think it likely that he expected that no convictions would ever be made under its provisions, but I had thought that it was some sort of way of appealing to religious voters. So I wonder what it was that made him change his mind, to see it as an issue that deserved immediate Constitutional change. It’s quite possible that it was the recent arrests here in Ireland of members of a plot to kill cartoonist Lars Vilk, who had drawn a cartoon of Muhammad, showing the danger of laws infringing freedom of speech, by granting any merit to extremists’ arguments. Or maybe he just wanted to make sure he wouldn’t become known as a right-winger.

In any case, it’s welcome news. With the announcement from Fine Gael leaked in Saturday’s Irish Times, we’ve had a lot of Constitutional changes proposed recently, and it’s probably worth while going through from start to finish to see what else should be changed, as we approach in 2012 the 75th anniversary of its adoption.

Cherishing the children of the nation

Later this year, we are likely to be voting on a referendum to replace the current Article 42 of the Constitution of Ireland on Education with on Children.

There are some very welcome measures in the proposal, such as ensuring the representation of children’s interests in court and a recognition that parents can fail in their responsibilities towards their children.

It would mean that Article 41, acknowledging the Family as possessing “inalienable and imprescriptible rights” would be followed by Article 42 acknowledging “the natural and imprescriptible rights of all children”. Where a line is drawn between these may cause conflict, and is something that may be unpredictably defined in the courts.

What slightly irks me are the opening words of the proposal

Article 41.1.1°
The State shall cherish all the children of the State equally.

This clearly invokes the wording of the Proclamation of the Irish Republic. This reinforces the erroneous idea that these words were meant to refer to children as such. People often invoke the phrase when talking about the social provisions for children.

But it is clear from the whole paragraph in the Proclamation that the children of the nation is meant figuratively to mean all Irishmen and Irishwomen, and in the context, an inclusion of all those living on the island of Ireland.

The Irish Republic is entitled to, and hereby claims, the allegiance of every Irishman and Irishwoman. The Republic guarantees religious and civil liberty, equal rights and equal opportunities to all its citizens, and declares its resolve to pursue the happiness and prosperity of the whole nation and of all its parts, cherishing all the children of the nation equally, and oblivious of the differences carefully fostered by an alien government, which have divided a minority from the majority in the past.

I think it’s a pity that this is being set in the Constitution under the new Article on Children. I was pleased, though, to hear it used in a correct context in one of the winning speeches in the 2010 Irish Times Final. The speaker, in a great section of a brilliant speech, mentioned the incongruency of this ideal of cherishing all children of the nation with Article 41.2.1° which talked of life within the home for women, rightly taking the phrase as about equality, not about minors.