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FactCheck: Is Enda Kenny really obliged to work towards a United Ireland?

Gerry Adams says there is a “constitutional imperative on the Taoiseach to promote Irish unity.” TheJournal.ie’s FactCheck applies some scrutiny.

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SINN FÉIN WANTS a referendum on a United Ireland, after 56% of voters in the North opted to remain in the European Union yesterday, despite the eventual Leave victory.

Party leader Gerry Adams said this morning there was a “democratic imperative” to hold the referendum, but went further than that during a press conference in Belfast, claiming Taoiseach Enda Kenny had a “constitutional imperative to promote Irish unity”.

Does he?

(Remember, if you hear a big claim you’re not sure about, email factcheck@thejournal.ie)

Claim: There is a constitutional imperative on the Taoiseach to promote Irish unity – Gerry Adams
Verdict: FALSE

  • Nothing in the Constitution explicitly states this
  • Nothing in the Constitution could reasonably be interpreted as meaning this, according to constitutional experts we consulted
  • A 1990 Supreme Court decision which may have given the claim some measure of support no longer stands

What was said

At a press conference this morning, the Taoiseach told reporters:

There are much more serious issues [than a referendum on reunification] to deal with in the immediate term, and that’s where our focus is.

When this was put to Gerry Adams this afternoon, at a press conference in Stormont, he responded:

There’s a constitutional imperative on the Taoiseach to promote Irish unity. That’s part of his office.

You can watch his comments here – the relevant section starts at 8.11.

The Facts

There is nothing in the Irish Constitution that explicitly says the Taoiseach is required or obliged to promote the cause of a United Ireland, or that this is one of the functions or duties of the office of Taoiseach.

David Kenny, an expert in the Irish constitution and assistant professor of law at Trinity College Dublin, told us:

The idea that it’s part of the Taoiseach’s office…there’s no part of the Constitution referring to the Taoiseach that suggests that.

(You can read the Constitution in full, here).

But is there anything in there to imply or suggest, albeit not in the exact terms used by Gerry Adams, that our head of government has a “constitutional imperative” to work towards a United Ireland?

We asked Sinn Féin for evidence and a source to support the claim, and a spokesperson for Adams told us:

In keeping with Article 3.1 of Constitution, passed by referendum as part of the Good Friday Agreement, the State declares its aspiration to see a united Ireland, it being ‘the firm will of the Irish nation, in harmony and friendship, to unite all the people who share the territory of the island of Ireland…’.
The Taoiseach, as head of State, should act as a persuader for Irish unity, and work to see the express aspiration of unity achieved.

(A brief aside: Ireland’s head of state is the president. The Taoiseach is the head of government).

Articles 3.1 and 3.2 were added to the Constitution in 1998, replacing the old Article 3 after the 19th Amendment referendum which essentially ratified the Good Friday Agreement.

The original 1939 Constitution contained these two articles:

constitution Source: Courtesy of Dr David Kenny

Kenny explained:

The original text of the Constitution contained what the courts described as a “claim of right” over the entire territory of the island of Ireland.
You could say that, on some level, because it was a claim of right, the Constitution supposed that the government should be actively endeavouring to pursue that.

However, Articles 2 and 3 were removed in 1998, and replaced with what Kenny called “an aspirational provision”.

Article 3.1, for example, declares the “firm will” of the Irish people to bring about a United Ireland.

What you could say, that would potentially be accurate, is that the Constitution affirms that it is an aspiration of the people of Ireland to do this [reunify].

However, he added:

The idea that that puts a duty on anyone to behave in any particular way, that would, let’s say, be contrary to their judgment …I would definitely reject that.

Dr Eoin Daly, a law lecturer at NUI Galway and constitutional expert, told TheJournal.ie:

At most [Article 3] expresses a vague, watered-down aspiration towards political unification with Northern Ireland, and it can’t really be interpreted as placing any specific legal or constitutional ‘duties’ on anybody to do anything in particular to bring Irish unification about.
It might be a political duty, but it is not a ‘constitutional’ one in any meaningful sense.

What do the courts say?

Kenny meets Adams Source: PA Images

In 1990, two Unionist activists and brothers, Christopher and Michael McGimpsey, had a case heard in the Supreme Court, arguing that the 1985 Anglo-Irish Agreement violated sections of the Irish Constitution, including Articles 2 and 3.

In his decision, Chief Justice Thomas Finlay stated (among many other findings), that Articles 2 and 3 meant that:

The re-integration of the national territory is a constitutional imperative.

This finding would appear to offer some support for the idea that a constitutional imperative towards a United Ireland exists, even if it does not specifically apply to the Taoiseach.

However, it was an interpretation of Articles 2 and 3 as they stood at the time, eight years before they were replaced.

“It’s not a plausible claim after the Belfast Agreement,” David Kenny explained.

Whatever you might have said under McGimpsey is not applicable to the current text.

Conclusion

Firstly, there is nothing in the text of the Constitution that explicitly states what Gerry Adams claimed this afternoon – that the Taoiseach is obliged by the Constitution, and the duties of his office, to pursue a United Ireland.

Secondly, there is nothing in Articles 2 or 3 which could reasonably be interpreted as placing the head of government under that obligation, according to the constitutional experts consulted by TheJournal.ie.

Thirdly, a 1990 Supreme Court decision which found a “constitutional imperative” did exist no longer stands, because the articles it was interpreting have since changed.

Sinn Féin, and potentially many others, may argue the Taoiseach has a moral, political, or patriotic imperative to work towards a United Ireland.

But the claim that he is under a constitutional obligation to do this, or that it’s part of the duties of his office, is wrong.

We rate this claim FALSE.

Send your FactCheck requests to factcheck@thejournal.ie

About the author:

Dan MacGuill

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