Reconstituting the Constitution

Ireland's Constitution
Bunreacht na hÉireann was written and came into force in 1937.

With the launch of Ireland’s first ever Constitutional Convention, Steven Balbirnie examines the scope and structure of this model for reform

The government has launched the Constitutional Convention, a body dedicated to examining constitutional reform promised in some form by all of the major parties during the last General Election. The Convention will consist of 66 randomly selected citizens and 33 parliamentarians representing both Leinster House and Stormont. The Convention’s members will be given 12 months to consider the issues of reducing the presidential term, reducing the voting age to 17, same-sex marriage, the Dáil electoral system, the participation of women in politics, the right of citizens abroad to vote in presidential elections, the clause in the constitution relating to women in the home and the offence of blasphemy.

While the Constitutional Convention may be the first body of its kind in Ireland, the model has been used in other countries in recent years, and indeed the 2011 election manifestos of Fine Gael and the Green Party made explicit references to similar assemblies in the Netherlands and Iceland. It is worth taking a brief look at these to see how they compare to the proposed Irish model.

The 2006 Dutch Electoral System Civic Forum is the most similar to the Irish proposal though with some notable differences. The Forum was comprised of 140 randomly selected members of the public, akin to the selection system being used for the Irish Convention, though the Dutch assembly excluded parliamentarians. Another shared feature was that the agenda for the Dutch Forum was also predetermined though its remit was even narrower than that being proposed for Ireland, with the only issue to be discussed being a review of the electoral system for the Dutch Lower House. The Dutch Forum also had a narrower time frame of only six months.

The more recent, 2011 Icelandic Constitutional Council bears less resemblance to the Irish Convention though its aims were more in line with those proposed in the election manifestos of Labour, Sinn Fein and the Green Party. The Icelandic Council was tasked with drafting a new constitution rather than having its scope confined to individual reforms like the Irish or Dutch assemblies. Despite the massive task facing it the Icelandic Council completed its work in a three month period and consisted of only 25 delegates who were elected from among the general public rather than being randomly selected.

While it is certainly a positive development that members of the public will be gaining a direct input in the process of constitutional reform, the Irish Convention, at least in its currently proposed form, is open to several criticisms. There are concerns to be addressed both in regards to the Convention’s composition and its agenda.

Independent TDs Stephen Donnelly, Catherine Murphy and Maureen O’Sullivan all expressed concerns over the fact that one third of the convention will be composed of politicians who could potentially wield too much influence. Fine Gael’s Paschal Donohoe also voiced a desire that the number of politicians participating in the Convention should be reduced over time.

The appointment of the Convention’s chairperson is another issue of importance. The government proposals state that the chairperson “must be a person of exceptional ability with a high degree of public acceptability.” However, the proposals fail to outline what would define such ability or acceptability. The government motion to establish the convention also declared that the chairperson “be appointed by the government” and that during Convention deliberations the chairperson “will have a casting vote in the case of an equality of votes.” These facts make it imperative that an independent figure chairs the Convention or the government could leave itself open to accusations of interference in the Convention’s work.

What is most vulnerable to criticism though, is the Convention’s agenda. It is the priorities of the Convention which have already drawn the most flak from opposition politicians and members of the press. The government has chosen to prioritise the discussion of reducing the presidential term and reducing the voting age; proposing that “the Convention will be asked to submit reports on these two matters within two months. In that way, any necessary refinements for the Convention can be made before it starts the rest of its work.”

Some commentators regard this move as giving precedence to arguably the two least important issues out of the eight matters up for discussion. The provision for same-sex marriage and amending the clause on the role of women in the home are far more socially significant issues, and it is difficult to see how deciding whether the president should have five or seven years in office could be seen as a more pressing concerns than these.

The most important political issue on the agenda has also been deemed a less pressing priority: the Dáil electoral system. The terms of reference for this issue are also frustratingly vague. The government’s proposals don’t make clear whether the discussion will be framed around the PR-STV voting system, a change from multi-seat constituencies or the introduction of a list system as is used in other European countries.

It is also interesting to note what issues have been omitted from the Convention’s agenda. Despite discussions in recent years about reforming local government or defining economic treason as a crime, these topics are seemingly not up for debate. The Government proposals also state that “matters on which there is already a commitment to hold a referendum e.g. abolition of the Seanad, and Children’s Rights will not be within the scope of the Convention.” Various human rights groups have also criticised the agenda, with Amnesty International calling for the protection of health and housing rights to be considered by the Convention.

While it is laudable that the Government is engaging with citizens on the subject of constitutional reform, they need to broaden the scope of the Convention and ensure its credibility or else this will just become another missed opportunity for reform.