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Opinion Does the care referendum show that it’s time for some constitutional spring cleaning?

Dr Alan Greene asks if we should just go for an ‘omnibus amendment’ of the Constitution and stop fiddling with it over smaller issues.

LAST UPDATE | 4 Mar

IRELAND GOES TO the polls on next Friday, 8 March to approve two constitutional amendments that have contrasting legal ramifications.

The Family Amendment will make a genuine difference, redefining the meaning of ‘family’ to provide legal protections for durable relationships outside of marriage. On the other hand, the Care Amendment is specifically designed to make no practical difference whatsoever.

It is a purely symbolic exercise that would remove the archaic and misogynistic references to a woman’s duties in the home, while simultaneously avoiding conferring any legal obligations on the State to facilitate care in the community. While symbolism is important, it still raises the question: is it worthwhile convening a cumbersome and expensive referendum to make this symbolic change? 

Caught up in symbolism

Symbolic constitutional changes are not the only problematic referendums to run. Some recent constitutional amendments have been highly technical, making it difficult for the public to get engaged. For instance, it is difficult to arouse passions regarding the need for a new Court of Appeal, or the appropriate age a person must reach before being eligible for the office of President.

In the future, would the people be sufficiently interested in a referendum to amend some discrepancies between the Irish and English versions of the Constitution? What about a referendum to change the constitutionally prescribed ratio of TDs to population? Should we hold a referendum to delete the constitutional provisions that state that the principles of judicial independence do not apply to the Special Criminal Court?

After all, the courts have already reinterpreted the Constitution to effectively circumvent these provisions and to insist that judicial independence does apply to the Special Criminal Court so why bother? Would it be worthwhile organising a specific referendum on each and every one of these changes or should we simply let sleeping dogs lie?

An omnibus amendment?

Rather than trying to organise specific referendums on individual constitutional reforms, an alternative would be an ‘omnibus amendment’. This single Bill could contain several constitutional amendments and the people would vote on the package as a whole—in an all or nothing fashion. In this way, the Constitution could be updated and modernised in one efficient swoop.

There is precedent for this. The Second Amendment of the Constitution Act 1941 contained a collection of different constitutional amendments. These ranged from technical alterations to the Irish text alone to more substantial changes such as giving the Oireachtas the power to declare the end of a state of emergency declared under Article 28.3.3° of the Constitution.

Notably, this amendment did not require a referendum; it was enacted at the end of the three year transitory period after the enactment of the Constitution during which it could be amended by legislation only. However, it is also arguable that the 2013 Court of Appeal referendum was actually an omnibus amendment. Here, the people were also asked to delete the constitutional provision that allowed only one Supreme Court judgment to be issued in constitutional cases.

This rule prevented dissenting or concurring judgments from being written and there is no necessary reason why this change was required for establishing a Court of Appeal. The Oireachtas essentially took the decision to graft this amendment onto the Court of Appeal question, killing two birds with one stone.

Certainly, there are legitimacy concerns with the ‘omnibus amendment’ approach. An omnibus amendment would deny people the right to scrutinise and vote upon each individual amendment and some people did indeed criticise the decision to tag the abolition of the one judgment rule onto the Court of Appeal question back in 2013. An omnibus amendment could face accusations that the Government was trying to sneak through controversial amendments by hiding them amongst more headline-grabbing changes.

A democratic omnibus amendment

To address these legitimate concerns, the omnibus amendment should require additional steps to legitimise the Bill before it is put to the people to approve. A committee of experts could be tasked with proposing reform such as the Constitution Review Group of the 1990s. However, more expertise does not mean more democracy. Moreover, while this proposal seems the most straightforward, nothing tends to be ignored more in Ireland than a report from an independent body tasked with suggesting legal reforms.

The aforementioned Constitution Review Group’s 1996 report is still sitting on a shelf gathering dust. At a bare minimum, were the State to take this option, the people would have to be given adequate time to consider the package and the Electoral Commission would have to be given sufficient resources to ensure the people are adequately informed.

Alternatively, Citizens’ Assemblies which have become quite the rage in Ireland in recent years could be convened; however, research suggests that citizens’ assemblies work best when they are presented with a specific issue to address, rather than the general issue of broad-brush constitutional reform envisaged by the omnibus amendment.

A more radical solution would be to establish a specific Constituent Assembly tasked with drafting the omnibus amendment bill. Delegates to this Assembly could be directly elected for this task and for this task only. Their mandate could be further limited by, for example, excluding certain Articles of the Constitution from consideration and a set timeframe by which they should complete their work.

In this way, the people would have a chance to consider what aspects of the Constitution they would like to change when going to the polls to elect delegates to the Constituent Assembly. The Oireachtas would still have to approve this wording before it could go to the People, meaning that TDs and the Government could still exercise a veto over certain proposed amendments. However, this may be more politically difficult to do so given the Constituent Assembly’s democratic mandate conferred on it by the people.

The moment for radical constitutional reform?

If the state were to go to the trouble of establishing a Constituent Assembly, constitutional reformers may be looking beyond a mere ‘spring-cleaning’ towards more significant reforms. Major constitutional changes, however, tend to occur, not in a moment of political calm but are instead thrust upon the people by the circumstances of history.

Many now think that such a moment will soon be upon Ireland with the possibility of reunification with Northern Ireland looming on the horizon. In such an event, it won’t be simply some spring-cleaning required, but an entirely new Constitution and the model of Constituent Assembly I have sketched here mirrors closely that of the Constituent Assembly that I suggest should be tasked with the process of drafting a constitution for a reunited Ireland.

In the meantime, perhaps the state should consider an omnibus amendment as a means through which it can effect a broad package of symbolic and technical constitutional amendments. I think on the whole the Irish Constitution has done the state some service and that the Irish people have been a competent legislature, exercising their sovereign right to amend the Constitution with sufficient care and attention—save for some significant outliers such as the pernicious 8th Amendment.

Nevertheless, there is a case to be made that the Irish Constitution is in need of some spring-cleaning, not least because constitutions should be living documents, reflective of the views of the people now, not those eligible to vote in 1937. But there may better way to do this than a referendum on each and every single amendment.

Dr Alan Greene is a Reader in Constitutional Law and Human Rights at Birmingham Law School. Originally from Co. Louth, he is the author of Emergency Powers in a Time of Pandemic (Bristol University Press, 2020) and Permanent States of Emergency and the Rule of Law: Constitutions in an Age of Crisis (Hart Publishing, 2018).

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