Address by Senator Michael McDowell
to the Clifden Arts Festival
Station House Theatre
Friday 27th September 2024
It is a great honour for which I am truly grateful to have been invited to speak here today at the Clifden Arts Festival.
I have been asked to address the issue of the role of our Constitution in the changing Ireland of today.
That Ireland is changing – and changing rapidly – is beyond dispute. In the hundred years since the creation of an independent Irish state, the fortunes of that state have ebbed and flowed.
The very viability of an independent Ireland was itself in issue for nearly half of that century. From 1920 to 1960, our population was in sustained gradual decline; even though we had a very high birth rate, we had a massive emigration rate. Our economic policies, ranging from free trade to protectionism and back again, had consistently failed the Irish people – most particularly the young and disadvantaged Irish.
Now we have entirely different but equally challenging policy issues to address – immigration, integration, prosperity, ecology, infrastructure deficits, and our place and future in Europe, among many others.
But, in general terms, we have been well served by our democratic institutions and our constitutional architecture.
Without being smug or complacent, Ireland has had one of the longest continual republican constitutional orders in Europe. Our constitutional order has evolved without violent upheaval. We have avoided political extremism of left and right.
We have navigated turbulent waters since the time of our civil war by a consensus that our fundamental political value is that of constitutional democracy and our shared commitment is to the rule of law.
POPULAR SOVEREIGNTY
The idea that the people of Ireland are the sovereign power and authority, and that they – and they alone – are the custodians of our written constitution is comparatively rare among European states.
By the same token, a notion has emerged that the political establishment has an ongoing mandate to engage in regular constitutional initiatives to model the Constitution to reflect fairly transient political concerns.
The whole point about a written constitution amendable only by citizens in a referendum is that is intended to outlast transient electoral majorities in parliament and to act as a lasting framework and constraint on the parliamentary process and on the Government as the State’s executive authority.
CITIZENS ASSEMBLIES
One comparatively recent phenomenon has been the establishment of what are termed citizens assemblies. We had a “Convention on the Constitution” in which 66 citizens, allegedly chosen randomly, and 33 elected politicians considered a wide agenda of possible constitutional changes.
The claim that citizens are really chosen randomly in such conventions and assemblies is deeply suspect. For a start, the randomly chosen citizens have turned out not to appear randomly distributed geographically.
Secondly, they are self-selecting in that their willingness to participate voluntarily in lengthy processes is very often inconsistent with the idea that they are neutral in relation to the issues on which their views are sought. The very substantial commitment involved favours participation by activist rather than randomly chosen, neutral citizens.
Thirdly, as I have personally witnessed, these assemblies are liable to be influenced by the expert advisors chosen to “assist” them in their discussions and deliberations. Enthusiasts for change in policy areas are often more influential than sceptics; they are given primacy in the process.
Let me give an example. One proposal to emerge from one such assembly was that the current constitutional minimum age of thirty-five to be elected as President should be reduced to twenty-one. Where did such a proposal come from? The people, in referendum, decisively and emphatically rejected the proposal.
But why was it put to them in the first place?
Another proposal was to extend voting rights to adolescents aged 16 and 17. That idea died when there was a realisation at parliamentary level that it too would probably sink without trace in a referendum. Why was it thought that adolescents, viewed as insufficiently mature to buy a cigarette, buy a drink, buy a lottery ticket, become contractually liable, and incapable of marriage, were sufficiently mature, suitable and experienced to choose the government, and to decide on constitutional referendums?
Likewise, the suggestion was made that the President of Ireland should be elected by Irish citizens resident abroad. What were the perceived advantages of such a change? What prospect of success did that proposal have in a referendum?
The bottom line is that we have a citizens assembly – the Oireachtas. We don’t need to create a different permanent vehicle to produce constitutional reforms that are unnecessary.
It might make sense to hold a referendum limiting the size of the Dáil to, say, 160 instead of the current constitutional ratio of at least one TD per 30,000 of the population (which includes non-citizens). With 14 extra TDs in the next election, the Dáil is set to grow to 240 TDs over the next 25 years on current projections. Westminster’s House of Commons which, by the way, sits on Monday afternoons and Friday mornings, would have 2,400 members if they applied the Irish 1:30,000 ratio.
SOCIAL AND ECONOMIC RIGHTS
At the heart of the Constitution is a presumption that the judiciary, which is independent of and necessarily unaccountable to a majority in parliament should not interfere in the ordinary course of development of economic and social policy by elected representatives in the Oireachtas, save to the extent absolutely necessary to preserve the express constitutionally guaranteed rights of the citizen.
Accordingly, Article 45 of the Constitution lays out principles of social and economic policy for the exclusive guidance of the Oireachtas. It expressly prohibits the courts from becoming involved in the implementation of those principles.
And that is for good reason. The separation of powers doctrine accords to the unelected judiciary huge powers to annul the acts of the Government and Oireachtas by reference to the civil and political rights of the citizen expressly protected by the Constitution.
But Article 45 also elevates and respects the democratic parliamentary process as the sole means whereby complex decisions to allocate resources between hugely differing policy purposes are made.
Choices between expenditures on health, education, and welfare, on the one hand, and culture, international development aid, and transport infrastructure are simply put out of the judicial sphere except to the extent that the Oireachtas may determine by its own laws for the time being to create statutory rights, for instance, by the Social Welfare and the Health Acts.
This separation of powers works well – and has worked well for the last century.
And yet a citizens assembly was guided and encouraged by enthusiastic academic activists to recommend that we change our constitution to give the judiciary functions in the State’s delivery of what were termed “social and economic” rights. That proposal has not met with majority support in the Oireachtas and, in my view, would be most likely rejected if put to the people in a referendum.
More recently, some politicians have advocated granting individual citizens an express constitutional right to housing. What would that achieve? What differences would it make? Is there any aspect of the present Constitution obstructing the provision of housing infrastructure?
CONSTITUTIONAL ACTIVISM
All of this raises the question as to why there seems to be such an appetite to use the Constitution only for short-term political advantage.
The recent spectacularly unsuccessful 39th and 40th Amendments are a case in point. For some reason, the Government felt compelled to put unthought-out or badly thought-out amendments before the people without being able to explain their meanings , consequences, or necessity.
Worse still, the Government decided to conceal from the people or misrepresent the advice they were receiving as to the likely consequences of what they were proposing.
The famous nonsense of granting constitutional status to “durable relationships” while insisting that it would be for the courts to define what these relationships were was bad enough.
But have we forgotten that we had established an Electoral Commission precisely to explain what was involved? Have we forgotten the Commission’s hapless attempt to explain the concept of “durable” by reference to recipients of Christmas cards and wedding invitations sent to the unmarried?
And why was it that the Electoral Commission did not or could not tell the people about any of the important Supreme Court decisions that were made by reference to the wording of constitutional provisions which the people were being asked to delete?
Why did government ministers peddle the blatant falsehoods that there could be no implications for tax law, succession law, family law, immigration law, pensions law and welfare law in conferring constitutional family status on impermanent relationships that could be described as “durable”? Why?
THE SEANAD
When the people rejected the proposal to abolish the Seanad, they expected reform. Why has that not happened? Why did the Government send its Attorney General into the Supreme Court to resist unsuccessfully even the extension of the Seanad university franchise to the newer universities? Why are the majority of citizens, those without university degrees, still to be left with no vote in the composition of a reformed Seanad?
The proposal to abolish the Seanad was an exercise in crass populism that would have left Bunreacht na hÉireann in a tattered mess of missing articles and diluted checks and balances on the all powerful party whip and unchallenged control of a single chamber parliament by the Government of the day.
EDUCATIONAL CHOICES IN THE CONSTITUTION
Perhaps one area of current political controversy deserves our special attention in the context of the Constitution. Recent controversy about the scandal of the sexual and physical abuse of school children denominational schools raises the question as to where our system of primary and secondary education is going in the context of a general decline in numbers and influence by the religious denominations that have dominated school education in Ireland until now.
We have to carefully consider where our school system is travelling in terms of control over the coming years.
On this subject, the Constitution has important things to say. It emphasises the rights of parents to choose the form and substance of childrens’ school education.
It requires the State to respect parental rights and duties in relation to school education of their choice. It even preserves the rights of parents to “home school” their children.
These provisions do not support the imposition on parents or children or schools of a single State ideology on matters of ideology or morality.
The Constitution does not accord the State or curriculum boards the monopoly in determining moral formation of school children. The vacuum increasingly apparent in the implosion of denominational religious institutions cannot just be filled by a new secular religion decided on by the State.
We need to develop a new architecture of school education that respects parental choice. That entails diversity in school types. Article 42 expressly prohibits the imposition of particular types of schools by the State and obliges the State to respect the rights of parents to choose private schools for their children’s education.
Recently it became clear that some educational activists were seeking to create a standard school curriculum with heavily values-driven content.
While it is certainly true that this form of State-decided orthodoxy is not much different in scope and ambition from very different social and moral teachings in Catholic denominational schools of the past, there remains a looming question on the extent to which the State should seek to advance its own political, social and moral orthodoxy on schools, parents, and children.
Withdrawal of the particular textbook does not answer the question as to how the constitutional rights of parents are going to be respected and vindicated in the future.
It seems to me that the implosion in denominational religious influence in Irish society, leaves a very real vacuum in our educational system.
Can we create real diversity, real choice, and real freedom in our schools? Can we create a new educational system that respects liberal and republican ideals and vindicates pluralism and Constitutional parental rights in our future?
These issues will not simply go away with the withdrawal of one school textbook. They require serious reflection and debate.