Many referendums on constitutional change on the horizon for Ireland

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If Ireland’s new government can stay in power, its term looks set to be dominated by one referendum after another. Five referendums have been promised, with the possibility of even more. David Kenny discusses the issues that Irish voters are set to be consulted on over the next few years. He writes that recent experience suggests that referendum fatigue is likely: whilst high-profile issues will continue to generate significant interest, many of the proposed referendums are unlikely to be greeted with enthusiasm by the electorate.

Any change to the 1937 Constitution of Ireland (Bunreacht na hÉireann) – however minor – requires ratification by a majority of voters in a referendum. In the term of the previous government, the Irish people voted on six such referendums, on issues as diverse as the abolition of the upper house of parliament; the provision of same-sex marriage; and reduction in the pay of judges in line with other public servants.

This has not sated the desire for constitutional reform; Ireland’s new government has promised five referendums within its lifetime, with the possibly of several more besides.

In early May, after months of negotiations, a deal was formed to return Fine Gael – the major party in the previous coalition government – to power as a minority government. The result of these negotiations for the support of several independent TDs (MPs) and the acquiescence of main opposition party Fianna Fáil was a detailed Programme for Government, as well as memorandums of understanding between the major parties. These are designed to avoid political conflicts that would threaten the stability of the government. Only time will tell if they will succeed; recent disagreement between Fine Gael and independent cabinet ministers over a Private Members’ Bill on abortion raised doubts as to the lifespan of the government.

If the government lasts, however, we will see many constitutional referendums. The Programme for Government pledged referendums on four discrete subjects, to be held at some point during the government’s term: the constitutional crime of Blasphemy; the ‘women’s place in the home’ clause; the Unified Patent Court; and the constitutional standing of the Ceann Comhairle (the chairperson of the lower house of parliament).

This motley collection of issues will seem surprising, even strange, to those not familiar with the Irish political system. Most – the exception being the Unified Patent Court, a European initiative – are based on the recommendations of the Constitutional Convention convened by the previous government. This Convention, composed of citizens and politicians, considered various matters of constitutional reform, from same-sex marriage, to the structure of the political system, to socio-economic rights. Very few of its many proposals were put to referendum in the term of the last government.

The first of the new referendum proposals is to remove the offence of Blasphemy from Article 40.6.1, which declares it to be a crime. This offence – which presumably seemed much more at home in the Ireland of 1937 than it does in the Ireland of today – had lain dormant because it had not been defined in statute and the Supreme Court ruled that the old common law offence of blasphemy could not be enforced. It was then given a surprising revival by a new statutory offence enacted in 2009, which the government claimed it was constitutionally obliged to enact. Though roundly condemned by some, this offence has not been enforced, nor is there any likelihood of enforcement. The Constitutional Convention recommended in January 2014 that the offence be removed, and replaced by a general prohibition on incitement to religious hatred. It is not yet clear whether the referendum ultimately put to the people will follow this recommendation as to a replacement clause.

The next proposed change is in respect of the ‘women’s place in the home’ clause in Article 41.2. This antiquated provision reads:

‘1° In particular, 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.

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.’

Even in 1937 this provision was criticised by women’s groups as patriarchal and out-dated, despite its architects’ protests that the provision was deigned only to ensure that mothers were not forced to work, rather than to prevent women working. In any event, it is purely rhetorical; it has no practical effect and is not consequentially invoked by the courts in constitutional adjudication. The Constitutional Convention considered this clause in 2013, with the overwhelming majority of the Convention voting for modification of the clause in some way. Again, it is unclear what approach the new government’s proposal will take.

The proposal to constitutionally establish the office of Ceann Comhairle – the chairperson of the lower house of parliament – is more difficult to understand. This, again, was a suggestion of the Convention, one of the more minor reforms it proposed in respect of reform of Ireland’s lower house. The office is undoubtedly important, and concerns have been raised about its role: that the executive and the Ceann Comhairle can have a close relationship that contributes to executive dominance of the lower house. However, changes in the Standing Orders of the house – such as this year’s innovation of electing the Ceann Comhairle by secret ballot rather than by whipped vote – can address this, and it is unclear what if anything will be achieved in this proposed referendum. I struggle to think of what could usefully be added to the Constitution in respect of the office.

In addition to the four promised in the Programme for Government, last week saw the announcement of yet another referendum, to be held in 2017, to enable Irish citizens living abroad to vote in Presidential (but not parliamentary) elections. The President is a non-executive Head of State and the office in many respects reflects collective national values. Emigration has been a particularly significant part of Irish history and culture, and support for an extension of franchise to the diaspora has grown in light of widespread emigration in the aftermath of the financial crisis.

Broader reforms

The apparent zeal for constitutional reform does not end with these specific (and in some ways minor) reforms: a citizens’ assembly will also be convened in the coming months, tasked with considering various matters that may require constitutional change. This assembly will be similar to the recent Constitutional Convention, but will be composed solely of ordinary citizens, rather than the mixture of citizens and elected representatives.

The purpose of the assembly is, mainly, to suggest solutions to the vexed question of the 8th Amendment – Ireland’s constitutional prohibition on abortion, that continues to cause a great deal of division and political controversy. A campaign to repeal it has been prominent in recent years. The previous government used a similar strategy with the Constitutional Convention, which was primarily set up to address the then-controversial issue of same-sex marriage.

The Programme for Government suggests a variety of other matters the assembly may consider, such as fixed-term parliaments and the referendum process itself. Other matters not relating to the Constitution – such as Ireland’s ageing population – will also be discussed. There is, however, no guarantee that the assembly’s work will result in any referendums.

Even these possibilities are not exhaustive. The Programme for Government makes vague suggestions that additional inquiry powers for parliamentary committees, which were rejected in a 2011 referendum, may be revisited. The Programme also somewhat redundantly clarifies that the existence of the citizen’s assembly does not deny the rights of the Parliament to vote through other referendum proposals on any other subject matter. This government will be unique in recent Irish political history in not having an executive-dominated parliament, and this means that other measures could find their way before the people if parliamentarians wish it.

The Oireachtas committee on Housing may have hearings on the possibility of enshrining a right to housing in the Constitution; housing is an acute political issue, and the Constitutional Convention having favoured the introduction of some socio-economic rights. Additionally, the government apparently believes that resolving the problem of religious discrimination in school admissions requires constitutional change (a highly contestable proposition), and this too may prompt a referendum, with growing consensus that the current position is untenable.

Referendum fatigue

It remains to be seen how this spate of referendums would be received by the Irish public. In the last term of government, people began to speak of referendum fatigue: that the public had simply been asked too many constitutional questions, and public enthusiasm to engage in debate had been almost exhausted. This phenomenon is probably linked to the perceived salience of the issue; it was not seen in the enthusiastic engagement with the same-sex marriage referendum in May of 2015, but was perhaps evident in the referendum to lower the age of eligibility for Presidency that was run on the same day. It attracted almost no media attention or popular engagement. The timing of referendums may also play a role.

The next few years – assuming the present government survives – are likely to further tax the public’s reserves of enthusiasm for referendum campaigns. This is unlikely to stop significant public interest if a major issue such as abortion is broached subsequently, but if we want the public to truly engage with constitutional reform, and actually deliberate on these issues, it might be worthwhile to triage the more pressing constitutional reform proposals, and to leave for another time some of the constitutional tinkering that is being proposed.

Another consequence of these many referendums may be that issues usually dealt with by ordinary politics will be elevated to constitutional level. Ireland has an on-going political dispute about the imposition water charges, and in this context calls have been made for a constitutional ban on the privatisation of public utility Irish Water. A less extreme version of this may be the calls for a right to housing to be inserted into the Constitution; whatever the merits of socioeconomic rights in constitutions, it seems deeply unlikely that Ireland’s current housing problem – related to excess demand, low supply in the aftermath of a housing crash, and difficulties in swiftly building social housing – would be ameliorated by courts getting involved. This, however, may be the cost of many referendums on diverse matters: referendums are normalised as part of the political process, and all issues start to seem apt for resolution by constitutional change.

About the author

Dr David Kenny is Assistant Professor in Law at Trinity College Dublin.

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