The 70th Anniversary of the Constitution: Statements (Resumed).

Thursday, 7 February 2008

Seanad Éireann Debate
Vol. 188 No. 10

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Senator Eoghan Harris: Information on Eoghan Harris Zoom on Eoghan Harris On the day that is in it, it is worth pointing out that one of the valuable provisions of the Constitution is Article 38, which provides for special courts. I do not want to rain on the peace process but it produces platitudes from time to time. It is good to examine the credit and debit sides. On the credit side, there is the Taoiseach’s visit to Dundalk to meet the First Minister and Deputy First Minister of Northern Ireland in the same week as the meeting at Ballymena. On the debit side, there are three areas: basic sectarianism that still exists and that perturbs thoughtful people on all sides; the ongoing sore of the Border, where smuggling creates a culture of paramilitary criminality resulting in the murder of Mr. Paul Quinn, whose parents are in the other House in pursuit of their campaign for justice; and the very serious threat by the Real IRA to re-open its campaign.

I do not wish to be negative but there is a tendency in the Republic, particularly when one resides more than 50 miles from the Border, to see the Northern Ireland situation as done and dusted. It is far from that. We know from our history of the capacity of the IRA tradition to revive and reassert itself.

The Constitution has played a major role in helping to erode the more savage side of Irish nationalism. The decision to amend Articles 2 and 3, the constitutional claim on Northern [728]Ireland, has done much to ease Unionist fears and make them receptive to dialogue with the Republic. However, the Constitution also has a harder side in Articles 38. From time to time it behoves the State to remind those throwing down challenges to it that the steely side of the State exists. When the Real IRA threatens to re-open its campaign when permanent peace seems in our grasp, the State should formally reply to the Real IRA that the Government will reopen the extensive apparatus available to it in the Constitution to put the organisation out of business. If it means re-opening the Curragh, that should be done.

The trouble with the Real IRA is not so much the hardcore element, which is oblivious to appeal from rational people on all sides of the Irish nationalist tradition, but the spear carriers, those who provide safe houses, those willing to drive a car or store materials for the organisation. These people should be reminded that the State takes a grim view of their activities.

The Real IRA is a serious threat. I take Suzanne Breen’s articles very seriously and my independent information is that the organisation is busy re-organising and re-arming. Before it gets to the stage the Provisional IRA reached, it should be nipped in the bud. The Constitution provides a range of methods, including the use of special courts, to do so. Those who support the Real IRA should be aware that there are jail terms and consequences to that support.

Senator Jerry Buttimer: Information on Jerry Buttimer Zoom on Jerry Buttimer Hear, hear.

Senator Eoghan Harris: Information on Eoghan Harris Zoom on Eoghan Harris At the same time, the pressure must be kept on Sinn Féin, which has done good deeds and bad. Recently, Senator Maurice Cummins spoke eloquently on the murders of Paul Quinn and Robert McCartney. The ledger on the good side of the peace process is very attractive but there is a downside that legislators like ourselves must watch. It is not good enough for us to congratulate ourselves platitudinously that everything is going well in Northern Ireland and then put it out of our business and resume our chats about road safety and other matters that concern us in the Twenty-Six Counties. That is all very well. However, those in this House have an obligation to the entire island. What we do regarding Northern Ireland will live beyond us for centuries. What we do about road safety may have some effect next week or the week after and might save a couple of hundred people here and there but what we do about Northern Ireland will save tens of thousands grief and misery in the future if we do it right.

Therefore, knowing now that we have a Constitution which makes no claim on our Unionist neighbours and is a document of which we can be proud, having been amended by experience, it behoves us not to allow this last threat to the state of peace in the two states on the island from the [729]Real IRA to go unchallenged. It behoves us to keep up pressure on Sinn Féin to bring the murderers of Paul Quinn and Robert McCartney to justice. The Greeks pointed out that when the moral order is disturbed, when someone is killed and it is hushed up and left go, the whole community falls under a shadow and cannot walk in the light until that shadow is removed. A great shadow has been lifted in the south Armagh area since the death of Paul Quinn because of the courage of his parents and the courage of the local people who have supported them.

While I do not want to be gruesome about it, throughout the Troubles it was the habit of the Provisional IRA in that area to insert a meat hook above the knee of people whom they considered to be anti-social elements and to pull down sharply thus destroying the muscle above the knee and giving the victim a permanent limp. As a result the person would be seen to limp and the evidence of the IRA’s work would be seen as a warning to the community and a form of intimidation. I am told that the PSNI and the Garda report that this culture of intimidation omerta. Fear has come to an end and the people of south Armagh are speaking up.

I am pushing matters here in a debate on the Constitution but I was unable to speak on the Order of Business. It behoves us to take up every opportunity we can to show the brave people of south Armagh and along the Border, those who stood up to the culture of criminality, that we are on their side and will help them to walk in the light.

Senator Jerry Buttimer: Information on Jerry Buttimer Zoom on Jerry Buttimer I wish to share time with Senator Bradford.

An Leas-Chathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Is that agreed? Agreed.

Senator Jerry Buttimer: Information on Jerry Buttimer Zoom on Jerry Buttimer It is with great pride that I stand here in the Upper House of the Oireachtas to pay tribute not only to those who drafted our Constitution 70 years ago, but also to those who have amended it. I refer not to the Judiciary or the Members and former Members of the House, but to the people of Ireland, who are enshrined as beholders of the sovereign power in the Constitution. Like Senator Harris I use this debate to make an earnest plea to the people who are preparing to become engaged in paramilitary activity to stop. When we voted to amend Articles 2 and 3, we, the people of Ireland, took a decision to turn away from the path of violence and war to the path of consent. I share Senator Harris’s views on which I commend him.

Our Constitution is one of the oldest written constitutions. As the first former colony to win independence it is little wonder that it was seen as imperative to place power in the hands of the people, and have legislation subject to the control of a Judiciary sworn to uphold rights enunciated [730]in and derived from a publicly ratified Constitution. Bunreacht na hÉireann is a significant human rights document which, in keeping with a modern and progressive state has seen amendments put, defeated and carried.

Some 70 years on the true value of our Constitution is obvious. Owing to the unique nature of the Constitution which sees the people as the source of authority, we are the only country in the EU that will hold a referendum on the Lisbon treaty. We in Ireland have a unique opportunity to hold a national debate on the pros and cons of our future within the European Union. We have had the opportunity to hold national debates on many occasions since 1942 when referenda have been held.

Each time the people vote in a referendum, democracy is strengthened. The debates and discussion held in the public domain make ours a vibrant and healthy democracy and emboldens our Constitution. I call on the Government to announce a date for the forthcoming referendum on the children’s amendment and the Lisbon treaty, so that an informed and vibrant debate may begin. Sometimes people do not appreciate the importance of their role in referenda and occasionally turnout can be much lower than at local or general elections. While this may cause despair among many of us, the fact that people take time to vote and participate in debate on constitutional referenda is an indication of the high esteem in which the Constitution is held.

Earlier in the debate Senator Cassidy said, “In the European Union puzzlement is sometimes expressed about the reason Ireland holds referendums with relative frequency”. I hope we, as a nation, follow and continue the procedure for amendment of the Constitution as provided for in Article 46. We have seen many attempts to amend the Constitution since its adoption. Controversial amendments have been dealt with, including topics such as the right to life of the unborn, divorce and the European Union.

  12 o’clock

I will always support the constitutional right to life of the unborn. It is important that we, as a democratic State, are not afraid to enshrine that right in our Constitution. It is important for us to take positions and stand true to values the Constitution attempted to establish from the outset. Even though we have changed and progressed in many ways, we should hold dear to ourselves values like the right to life of the unborn. It is worth pointing to Diarmaid Ferriter’s description of the Constitution as not just a document reflecting the concerns of the mid-1930s but a reflection of values built up over the previous 15 years prior to its drafting.

I am impressed that bilingualism and the status of the Irish language in the State are recognised by the fact that the text appears simultaneously in Irish and in English. Where there are disparities between both languages, it is the text trí Ghaeilge [731]that takes precedent. It is worth noting that Irish is enshrined as the first language in the Constitution and that should always be the case. Recently the Department of Community, Rural and Gaeltacht Affairs published the substantive and expansive study, Staidéar Teangeolaíochta, which shows that not only is the use of Irish in Gaeltacht areas in decline, but that within 15 years the Irish language might no longer exist in Gaeltacht areas at all. I call on the Minister, Deputy Ó Cuív, to act on the recommendations of the report. The failure to act so far has not been helpful and the lip service on the issue must be replaced by a proactive approach to the alarming disclosures in the study which could signal the death knell of our national language. Given that Éamon de Valera presided over the drafting of the Constitution which enshrined Irish as the first language of the State, we should have Irish as a living language. I hope the Minister will act on that.

Senator Paul Bradford: Information on Paul Bradford Zoom on Paul Bradford I read with interest the opening discourses in this debate last week involving Senator Regan and the Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan. I would describe myself as being very far removed from being an expert on constitutional matters. However, the Constitution guides and guards the nation. It is a living document having been amended on many occasions and it may need further amendment.

The issue of our electoral system of proportional representation has been addressed by the public in two referenda. In retrospect, in the 1960s what were probably naked political efforts were made to change our system of proportional representation and the people, in their wisdom, rejected those efforts. In the Ireland of the new millennium we will need to reflect on our electoral system and on the multi-seat system of proportional representation and question whether it is the way forward. I concede that in recent elections I have been a political victim of PR but so be it, that is the system which is in place. However, to deal with the challenges ahead I wonder if the current system of multi-seat proportional representation allows us to develop the policies and the thinking which is required. I am a great fan of proportional representation. It is imperative that future Governments and future Parliaments are elected by proportional representation. Only one other country in Europe has the same system of multi-seat proportional representation. I am not convinced it will give us the flexibility in political thinking and policies which will be required in the years ahead. As practising politicians we know that under the current system of proportional system most contests are not between the parties and are not contests of ideas nor of philosophies but rather contests within the [732]constituencies among those of the same political party. It is a case of candidate A or candidate B who both represent the same party and I am not sure if this will be desirable in the years ahead.

I hope this House will have a mature debate on the electoral system. I wish to express my strong support for proportional representation but also my doubt that the multi-seat system of PR is the way forward.

I wish to reflect on the subject of local government. I refer to a clause inserted as a result of an amendment to the Constitution some years ago which was designed to strengthen local government in some way and guarantee the set period for local government elections and this is to be welcomed. However, as we plan for the new Ireland in the new, better and enlarged Europe and because we lecture Europe about subsidiarity and demand that powers and decisions be taken at the lowest level possible, we have much to do constitutionally to strengthen Irish local government. This must be reviewed in the next few years because local government and local communities must continue to play a greater role in the running of the country. It is ridiculous that most decisions affecting people in local communities are taken in Leinster House and not in the chambers of the local authorities. While certain advances have been made in local government as a result of the 1999 referendum, more needs to be done.

We have been very well served by all Presidents elected, from Dr. Douglas Hyde to Mary McAleese. A President may serve two seven-year terms and this should be examined. We had a presidential declaration in the House this morning, and so be it. I question whether two seven-year terms is appropriate and I would be happier if the term allowed was one single term of seven years or a maximum of two terms of four years. Like most politicians, I can raise issues but I cannot offer the solution but it is a subject which needs to be debated.

I look forward to the contributions of my more learned colleagues. The Constitution is a document for all the people and we all must have our say on the matter.

Senator Terry Leyden: Information on Terry Leyden Zoom on Terry Leyden I welcome the Minister of State, Deputy Batt O’Keeffe, to the House. I thank the Leader, Senator Donie Cassidy for arranging this way of commemorating the 70th anniversary of the Constitution. There is nowhere it should be commemorated more than in this House which owes its very life to the 1937 Constitution and for which I thank Éamon de Valera.

I would like to begin by joining other Members in paying tribute to the fine speech last week by the Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, on the historical, legal and political background to the 1937 Constitution. It is both reassuring and inspiring to hear [733]our Minister for Justice, Equality and Law Reform speak with such passion and knowledge on the cornerstone of our legal system. I recommend his speech be circulated to colleges and universities for study. It was a most enlightening and inspiring speech.

I also wish to remember the creator of the Constitution. The 1937 Constitution is sometimes called Dev’s Constitution but it was when Éamon de Valera’svision was allied with the legal knowledge and drafting skills of the likes of John Hearne that this document came into being, a document which was all the more remarkable for its time in a Europe facing the rise of fascism.

On the 70th anniversary of the Constitution of Ireland, it is worth noting what makes our Constitution different from those of other countries. At a recent Council of Europe committee meeting I highlighted how the Constitution of Ireland makes explicit provision for the protection of the rights of unborn children by Article 40.3.3°. The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate that right.

I made this point at a meeting of the Committee on Equal Opportunities for Women and Men, which was discussing a report on access to safe and legal abortion in Europe, to highlight to the sponsor of the report, Mrs. Gisela Wurm of Austria, the current position relating to abortion in Ireland, which is that the rights of the unborn have been specifically stated in the Constitution since 1983, when 67% of the Irish people chose to amend our Constitution. It is important that Ireland is represented on forums such as the Council of Europe. Ireland is not obliged to adhere to the recommendations of this report as it is not a legally-binding document. However, it is an indication of the direction in which Europe is going in this regard. The report recommends that abortion should be decriminalised in any country which has not done so already. It guarantees women’s effective exercise of their rights to abortion. Legalised abortion is permitted in 80% of Europe and we and some other European countries stand alone. It is important to realise the meaningful nature of the Constitution. I quoted the subsection to the meeting in Strasbourg two weeks’ ago. A further meeting will be held in Paris to discuss this report and I will oppose it as will the delegates from Ireland at the session next April in Strasbourg. It is against the interests of women that abortion would be provided. I do not wish to become bogged down in this issue but it is relevant. That report is now before the Council of Europe.

Article 40.3.3° is a specific right but as previous speakers have said, an important feature of the Constitution of Ireland is the existence of unspecified rights which have been recognised by [734]the Judiciary, for instance, the right to bodily integrity. This broad interpretation of the Constitution is possibly one of the reasons the State has been held to have infringed the European Convention on Human Rights a lot less frequently than some of our European neighbours and has one of the best records on human rights of any country in the world.

The people of Ireland have adapted and improved an excellent document over the course of its 70 years to ensure the rights of all people are respected. In 1937 the Irish people enacted de Valera’s Constitution. It has since been studied the world over and inspired the drafting of constitutions of other countries. We have also shown willingness, even eagerness, to constantly improve the document. This, combined with refinement of the interpretation of the Constitution by the Judiciary, means that while the document was ratified by an admittedly narrow margin, it still represents the Irish people and the Ireland of today. For example, it is thanks to the enshrining of the sovereignty of the people in the Constitution that alone among European Union members we have the privilege and responsibility of holding a referendum on our future in the European Union. Before the idea of a European Community was even conceived, the drafters of the Constitution realised the need to ensure the people were granted the ultimate power to enter into international agreements. Thanks to their foresight the sovereignty of the Irish people cannot be undermined by the State entering into alliances with groups of other countries without, in most cases, being compelled to consult the people by referendum.

As Senator Regan indicated, it is the interpretation of the Constitution by the Supreme Court which gives character and meaning to our democracy and it is reassuring to see this guardian of the Constitution vindicating people’s collective and individual rights. It is, for example, the decision in Crotty v. An Taoiseach in the context of European integration which has meant that five times in recent decades the people had a direct say in their country’s participation in European co-operation. Thanks to the provisions of the Constitution and their interpretation nobody can claim that Ireland suffers from a democratic deficit in European affairs.

As spokesperson on European affairs I will urge a vote in favour of the Lisbon reform treaty but I will urge primarily a considered debate on the matter and a large, representative turnout in the referendum. With in excess of 4 million people we have a great responsibility to decide the future of Europe’s 500 million people. It is an enormous responsibility and I am delighted we have that opportunity. Whether the referendum is in June, September or October, it is vital that every individual is contacted or canvassed and involved in the debate on this issue. If we do not [735]approve the treaty it will have repercussions for Europe but ultimately we have the right to vote for or against the Lisbon reform treaty. The majority of Members of this House are in favour of the reform treaty but there are other parties which, although they participate in European affairs, appear to be against this reform treaty.

Other speakers referred to proportional representation and the transferable vote system. We need only look to the first-past-the-post system used by our nearest neighbour to see the advantages for fair representation inherent in our system. The Minister of State, Deputy Batt O’Keeffe, is aware we debated this issue previously and it was also an issue in the 1960s. The Minister of State probably did not have a vote at that stage. Fianna Fáil was in favour of the single seat constituency with a transferable vote but it was not accepted. I have benefited from the multi-seat constituency system and I have also had difficulties with it. The Minister of State can testify to that situation himself.

All the institutions of Government are established by the Constitution and it is important that as Members of one of these institutions we ensure we do not lose touch with the people and that, if necessary, we periodically review the structure and nature of these institutions to maintain relevance and accessibility. I have no doubt that all branches of Government, but more importantly the sovereign people, will continue in their wisdom to ensure this excellent legal and social document continues to serve the country as well for the next 70 years as it has for the past 70 years.

I hope some event will be organised to mark the 70th anniversary of the Constitution. It is an excellent and meaningful document and we should mark its 70th anniversary in some way to pay tribute to those who were responsible for bringing it forward and to those who voted in favour of it in 1937.

Senator Alex White: Information on Alex White Zoom on Alex White I thank the Leas-Chathaoirleach for the opportunity to participate in this interesting and important debate on the Constitution passed by the people on 1 July 1937 and commenced on 29 December 1937. We are a bit late to have an event to commemorate the 70th anniversary in the manner suggested by Senator Leyden but perhaps we can consider something more elaborate for the 75th anniversary which is four years away.

The Constitution is a very important document. It is the central legal document of the State. Senator Leyden described the Constitution more than once as Dev’s Constitution. None of us is unaware of the fact that Mr. de Valera was centrally involved in the drafting of the Constitution. While he drafted it with a little help, perhaps, [736]from some clerical and ecclesiastical friends, there is no doubt he was at the heart of it.

It is 70 years on and there is an important point to be made in this House and for us to accept about the Constitution. For the constitution of any state to be as live and important as this document, it must pass on from being the property or the province of one individual, however important historically that man may be. I do not get too carried away with people using phrases such as “Dev’s Constitution”. That is fine. I will not fall out with people over that but the Constitution belongs to the people and that is the important fact we need to acknowledge, especially at this stage.

When I began to read the Constitution as a young person I had a sense that elements of it were overly influenced by Catholic teaching. I refer to the inclusion of phrases such as women’s “duties in the home”. Many such phrases, which arguably are quite confessional in tone, occur in the Constitution, especially in the Preamble. They have always made me very uncomfortable but they do not have the effect of undermining the fundamental importance and value of the document itself.

I am a member of the All-Party Committee on the Constitution and if I were asked to bring my shopping list of aspects that might be taken out and other issues that would be included, I would have a few of them. We ought to think twice about having such phrases as the opening line of the Constitution: “In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred”. I do not make this point remotely in any sense to disrespect religion or the importance people attach to closely held religious views and practice, but whether it belongs so prominently in the central legal document of the State is worthy of debate.

During the debate held on the previous day I heard the Minister respond to something Senator Regan said about Garret FitzGerald’s constitutional crusade in the 1980s. I thought the Minister’s speech was a little dismissive of what Senator Regan said about the contribution of Garret FitzGerald and others during the 1980s. There is nothing wrong with opening up sensitive issues to public debate and, if necessary, seeking to amend or nuance the Constitution in a way that is more appropriate to today. Senator Mullen indicated that was being done to curry favour with the Unionist community in the North. That may well have been part of the context but some issues such as this are worth examining in their own right in the context of where we are as a State and society. I accept these issues were sensitive in the 1980s, and still are, but if we believe, as I do, that the Constitution requires some changes, they ought to be made for our own reasons rather than it being said we were doing it simply for [737]some ulterior purpose, important though it might be.

Other speakers referred to Dr. Dermot Keogh’s recent book which is a fascinating study of the drafting of the Constitution and how it came into being. Many Members have read it and I recommend it to those who have not. It shows that the debate in the Dáil in the lead-up to the passing of the Constitution in 1937 was quite partisan. That it was passed by less than 51% of the population on an election day may have been part of it. Mr. de Valera spoke on the proposed Constitution at something like 20 or 25 rallies throughout the country. There was a highly politicised general election campaign going on at the time. It is not really obvious whether people were voting on the document itself or along party political lines on the day in question. According to Professor Keogh, approximately 50,000 Labour Party voters, for whatever reason, did not vote in favour of the Constitution. That may have been more bound up with the politics of the day and the general election than with the content of the document.

Dr. Gerard Hogan, SC, who has written widely on what is sometimes claimed to be the Catholic or confessional nature of the document, has argued quite compellingly that perhaps this criticism is overstated in the sense that while there are phrases to which objection could be made, the identity of the authors of the various Articles is of little relevance, even if they were written by Archbishop John Charles McQuaid or whoever. This is especially the case when considering the Articles which deal with the vindication of personal and fundamental rights, such as the right to privacy.

Since the 1960s the Supreme Court has come to regard the Constitution as a live document which is not set in stone. It has been prepared to interpret it, sometimes, it must be acknowledged, very liberally and perhaps in a way never envisaged by its authors in the 1930s. This brings me to a point Senator Leyden mentioned in respect of the 1983 referendum on the so-called pro-life amendment to the Constitution. It is important to recall that the Supreme Court interpreted the amendment in a particular way and whereas Senator Leyden made the point that we have the protections of the Constitution, I must remind him and the House that the Supreme Court has, in fact, decided that what the Constitution means is that abortion is lawful in this State in certain circumstances. That is the constitutional position, yet the Houses of the Oireachtas have failed to legislate.

My party is in favour of legislation being introduced in respect of the X case decision but regardless of whether that happens we need to be aware of the facts. When we laud the Constitution as an outstanding document and speak of the 1983 amendment, we must remember it has [738]been interpreted to the effect that abortion is legal in certain circumstances. That ought to be legislated for in these Houses but it has not been done. Last week the Minister said we should not visit the issue but we need to do so. Why would legislators ever state they will not legislate in respect of such an important question? While it is a sensitive matter, it is wrong that we as legislators should seek to set it to one side.

I do not want to pre-empt the deliberations of the Joint Committee on the Constitutional Amendment on Children, of which I am a member, but we need to exercise great care on any amendment to the Constitution. We need to exercise even greater care in circumstances where we propose to reduce or remove rights that currently exist. I am not saying that we ought not to do it but we need to be clear-headed in our thinking. The only time we have ever put an amendment in the Constitution that effectively renders something immune from constitutional challenge was in 1972 when we joined the European Union, where a provision was inserted into the Constitution to the effect that nothing in it invalidates any provision which relates to our joining or being a member of the European Community.

An Leas-Chathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Senator White has one minute remaining.

Senator Alex White: Information on Alex White Zoom on Alex White In that context we rendered immune from constitutional challenge anything that would arise in the future. The current proposal on the child protection element of the children’s referendum would render immune from any future constitutional challenge a provision that would be brought forward in law in respect of child protection. I do not say that this is not an extremely sensitive and important issue to be addressed after the Supreme Court decision in the CC case, as is the question of statutory rape and what that offence should consist of. However, as always in such situations, there are competing rights and we should not lightly take rights out of the Constitution or render immune from challenge a particular legislative provision, irrespective of its content. In the coming weeks and months we need to be careful about that and to scrutinise in great depth any change to the Constitution that entails the loss of citizens’ rights, which is what is at stake.

The question of property rights and the privileged position that they enjoy in the Constitution is a matter that arises repeatedly and not only on the question of development land. We in this country have a right to join associations and here I am thinking of trade unions but there is believed to be a constitutional bar on requiring an employer to negotiate with a trade union or on introducing legislation that might make recognition of trade unions compulsory. That is not new and there are similar provisions all over the [739]world, including in the United States which enacted trade union recognition legislation in the 1930s.

We are told here that the property rights provisions in the Constitution mean it is essentially a property right of an employer not to speak or negotiate with a trade union. The constitutional review group looked at this and thought that it was not appropriate that there should be a constitutional amendment and that it would be better dealt with by legislation. It was dealt with by legislation in the late 1990s and 2000, but it is now under significant pressure after the decision in the Ryanair case. In view of this, the question of the proper balance between trade unions and employers and property rights is an area that should be revisited. The trade unions are right to look for this issue to be reopened, whether in the partnership talks or, ultimately, by means of seeking a constitutional amendment.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh I join in the welcome to the Minister of State, Deputy Batt O’Keeffe, to the House. I also welcome this interesting debate. Reference was made by some to the 1922 Constitution and the fact that aspects of it were incorporated into the 1937 Constitution, but the significant difference is that the former was to some extent underpinned and recognised by an enactment in the British Parliament whereas the latter was very much part of the self-determination ethos of that entire era.

There was a fascinating period from 1916 to 1938, which may even date back to 1912 with the increased activity of the volunteers and also the activities of labour rights and the various strikes and labour leaders at that time. It transformed the shape of Ireland gradually. The 1916 Rising, the centenary of which we will be commemorating in eight years’ time, the War of Independence and so on were significant. It was also significant that while we had the treaty in 1922 and the continuing activity and control of Dáil Éireann over society, with the republican side, through Fianna Fáil, getting into Government in 1932, efforts were then accentuated to achieve real independence and sovereignty, to assert those rights, and to set aside as much of British influence as possible. That process led ultimately to the economic war.

Something lost sight of in this, which I think was an historical event, was the meeting of Éamon de Valera and many of his senior Ministers with Neville Chamberlain in April 1938, at which the annuities issue was determined and set aside. That and other issues were very much part of the economic war — the oath of allegiance obviously had been already dispensed with — particularly the acquisition of the ports to bring them under Irish control. That this laid the foundation for our neutrality in the Second World War [740]was significant, particularly when we consider the atrocities and inflictions imposed on many countries during that period.

The philosophy of the time was the philosophy of Sinn Féin and of self-sufficiency. The Constitution was described by some as the urge of Irishmen to manage Ireland in Ireland’s interest. That was significant at the time because the apparatus of the State, which was the Civil Service, had been continued from what was there under British rule. The Constitution was, if one likes, a throwback to an earlier era, perhaps back as far as the high kings, to connect sovereignty and our independence. It is a significant document as a consequence.

Like many others here who have been visiting the North for 30 years or more and talking to politicians there, I am struck by the assertion of this independence, which allows me to empathise with the thinking of the 1930s in its assertion and the breaking of the links with Britain. I am amazed by the number of UUP and DUP politicians to whom I have spoken, a small but significant number, who reflect the same philosophy and have said privately to me that they get nothing from the English and the sooner they get greater activity and connection with us, the more it will be in their interest. Therein, perhaps, lies the foundation for building a new Ireland. All the attempts and supports we have for all-Ireland activity and an all-Ireland economy and approach reflect the benefits that will be got by local people making decisions in their own interests, rather than a remote parliament making decisions in the interest of what is secondary to its overall priorities.

Senator Bradford touched on an aspect of this that affects us, namely, the issue of local government. We have had local government recognised in the Constitution, yet we have the least evolved system of local government of many of the OECD countries.

Senator Eoghan Harris: Information on Eoghan Harris Zoom on Eoghan Harris Hear, hear.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh The whole ethos of subsidiarity is much honoured in speeches and sentiment, but the principle is not given practical effect. There is a lesson in that for Government and the Houses on the need to play a role in that regard.

The name of Éamon de Valera will be forever linked with the Constitution, as being the main motivator, instigator and, perhaps, author of it. However, even he acknowledged the tremendous role played by our civil servants in drafting the document. Reference has been made to Professor Keogh’s book, The Making of the 1937 Constitution. My sister Pauline gave me a number of books for Christmas, of which that was one. However, I chose lighter reading, such as the Tim Flood story about Wexford hurling in the 1950s, [741]Ronnie Delaney’s book about winning his medal in Melbourne and the autobiography of Lee Sharpe, the Manchester United player, which I read during January. I regret now I did not read Professor Keogh’s book because I would be much more knowledgeable about the issue if I had applied myself to it. I am looking forward to digesting it, because all I have heard and the flick-through I have given it indicate it is a fine account of the Constitution, a document that has stood the test of time.

It is interesting, given the state of legal affairs and some legislation at the time, particularly that enacted from 1922 up to the drafting of the Constitution, that legal and other queries were made with regard to their status on adoption of the Constitution. An aspect that struck me as interesting was the original understanding that was adopted and emerged subsequently in law. Some of our learned legal people will be probably familiar with this. Subsequent interpretation by the Supreme Court went back to see what was the thinking of the people in 1937 in this regard. That is a sound principle.

With the utmost of respect to the Supreme Court, and to the comments made by Senator Alex White which reminded me of it, I do not think that when the decision was being made on the case in 1992, it reflected the thinking of the people in incorporating a right to life of the unborn in our Constitution. That amendment to the Constitution clearly allowed for a situation of the equal right to life of the mother. I think the intention of all concerned was that this would be in a health emergency where decisions had to be made as to the danger of the loss of life of the mother. It provided some discretion to the medical profession. How that was extended to a situation where a risk of suicide equated to the right to life of the unborn is a matter the average person would find difficult to comprehend. Let us not forget, the Constitution is a document of the average person and to be interpreted by the legal profession in that light.

I will conclude with two points. Many of us who participated, Senator Cummins included, in the debate in these Houses when we incorporated the European Convention on Human Rights into Irish law were very struck — it was acknowledged by all sides of the House and the Minister at the time, who had a good legal brain — by the inclusion of practically all of those rights in a Constitution drafted 70 years earlier. It is remarkable that the foresight, vision and manner in which we should deal with each other and society were reflected so strongly in that document.

Mention has been made of the EU treaty, a topical issue. In a democracy, all power flows from the people. We are fortunate to have a Constitution which gives the right to the citizens at large to make decisions of significance that will affect them in the future. Therefore, the rights [742]of the Oireachtas and public representatives are restricted. We are only the people’s representatives and we should not assume or presume to take powers unto ourselves that are rightly vested in the people. The Constitution has stood the test of time and is a document of which the authors and those associated with it can be very proud.

Senator Feargal Quinn: Information on Fergal Quinn Zoom on Fergal Quinn I welcome the Minister of State at the Department of Community, Rural and Gaeltacht Affairs, Deputy Carey, to the House. I also welcome this debate.

When Senator Eoghan Harris was nominated to this House, he said he went and read many speeches from the 1930s and before. I did something similar when elected 15 years ago. I was very impressed by what I read because this House is a creation of that Constitution. I was most impressed with the speeches. I hope a future reader of the speeches made in this debate, both last week and today, will consider them equally interesting. Members who participated in this debate had the opportunity to say something that, hopefully, future students will study.

Senator Bradford said he did not regard himself as an expert on the Constitution. I certainly do not consider myself an expert on it either. However, when I was a university student I had the opportunity to study constitutional law and in the 1960s when I, as a young man, was subject to 37 prosecutions for breaking the law, I found a defence under Article 44 of the Constitution. I was selling meat after 6 p.m. I remembered a little of my constitutional law, which provides that it is unlawful to discriminate on religious grounds. A statutory instrument that was passed excluded meat killed under the Jewish ritual method, kosher meat, and as it did not apply in that case I was able to use that defence to ensure I was not prosecuted for selling the meat. While I am not an expert, I was chuffed to discover this from the education I received.

It is something of a political cliché to issue a paean of praise for our Constitution on occasions such as this. I have no problem praising it. I believe that, by and large, the Constitution has done a good job, and has served the country well for the past 70 years and two months. Nevertheless, however much we approve of the Constitution, that should not blind us to its faults. We should not shrink away from the need to retire it gracefully in favour of a completely new document, if and when that need arises. I believe it does arise. Although the Constitution may have served us well over the past three generations, it has passed its “sell by” date. Instead of this seemingly endless process of amending the document as if we were patching an old quilt, it is time to go back to square one and craft a new fundamental law for this country.

Why should we do this? The most important reason is that the Constitution is a creature of its [743]time. Ireland has changed profoundly in the 70 years since it was enacted. Trying to fit the Constitution into the Ireland of today is like trying to force a square peg into a round hole — it takes an enormous amount of unnecessary effort and the end results are always far from satisfactory. We heard some references to that today and Senator Alex White concentrated on a number of the issues. Ideally, of course, a constitution should live forever. It could do so if it were genuinely a basic law, a flexible foundation that was capable of adapting painlessly to the inevitable changes in society that could not be foreseen at the time it was written. In the real world, however, constitutions are written within the mind-set of their own time, and that mind-set always carries a load of baggage that becomes more and more inappropriate as time passes.

For this reason, rather than expecting our Constitution to be perfect and capable of lasting forever, we should admit that any constitution is likely to go out of date sooner or later and we should be ready to promptly retire the existing text and make a fresh attempt to define the nation’s basic law. The Ireland that gave rise to the Constitution had a fundamentally different view of its place in the wider world than it has now. It was an inward-looking, isolationist, protectionist State, driven by the belief that it could pursue its destiny in a self-contained cocoon of cultural, political and moral values. One need only read the words of the Constitution to confirm that.

The Constitution was written in the early days of the State, when it was a priority to underline and copperfasten our sovereign independence as a nation. The State had been in existence for only approximately 15 years at that time. Seventy years later, however, we share our sovereignty with the wider European Union of which we are a willing member. It is inappropriate that such a radical shift in the structure of our governance should be acknowledged only by means of an enabling amendment, as occurs when an EU treaty forces us to include it and as will be required by the reform treaty. Our basic law should now fully acknowledge the fundamentally changed situation and set out a changed framework of governance that will guarantee an efficient and a democratic system of government for Ireland as part of Europe — a system that balances both our national aspiration for autonomy and our need to play a full role in the wider community of which we are proud to be a part.

Also radically changed since 1937 is the nature of our relationship with the part of Ireland that is outside our jurisdiction. Before the amendments made after the Good Friday Agreement, our Constitution was undeniably irredentist. It claimed territory that had been lost. With the inclusion of the amendments, we have a Consti[744]tution that is, equally undeniably, partitionist. We need a new document that will rise above such temporary issues, and which positions our State in a value-free space that is flexible enough to incorporate any changes that may occur in the future and is neutral enough to be fully acceptable to anyone living on the island.

An equally fundamental change in our society since 1937 relates to matters of gender equality. In the 1930s a man’s wife was regarded as his chattel, all female civil servants were required to give up their jobs when they married and it was so unconceivable that a woman could become President of Ireland that the Constitution brazenly repeatedly refers to “he”, “his”, and “him” so many times that no reasonable person today can read it without squirming in embarrassment.

Social partnership, which now plays such a large part in how the country is run, had not even been dreamed of in 1937. Instead, there were the corporatist theories of the 1930s, of which the Seanad is a living relic. A central part of our system of governance therefore takes place on a totally extra-constitutional basis, while within the framework of the Constitution the bones of a long-dead social theory continue to rattle. We need to bring social partnership into the constitutional space and design a second legislative chamber — if we are to have one and I believe we should — in a way that reflects our democratic ideals rather than insults them. I am not happy that the structure of this House and how its Members are elected are correct. A fundamental change is required in that regard. That would require a constitutional change and we should consider that as an objective.

I have mentioned a few matters but I could point to further aspects of the Constitution that are frozen in the aspic of the 1930s, and point also to aspects of our present way of life that are unacknowledged by the Constitution and should be. That is our responsibility. I believe I have said enough to establish my basic point, that we are operating under a constitution that no longer serves our purposes as a nation. It is high time to retire the 1937 Constitution, place it with reverence and thanks on the bookshelves of history and move on to better things. It is a challenge but it is time we faced it.

I welcome this debate because it gives us the opportunity to discuss matters such as this, which otherwise would not come to the forefront.

Senator Maurice Cummins: Information on Maurice Cummins Zoom on Maurice Cummins I welcome the Minister of State, Deputy Pat Carey, to the House. The 1937 Constitution is undoubtedly an important and enduring document. We have been talking about its role in Irish politics, but it is not enough to consider it in isolation. We must consider the circumstances of its creation and endurance in the context of other comparable countries. The Irish Constitution has been used as an [745]example by other fledgling or transitional states which were seeking a measure of higher law that is balanced, robust and durable. It is well known that the Irish Free State Constitution of 1922 was a progressive, liberal and secular document. It was drafted during a period of turmoil, not just in Irish politics but across the wider European political front. New countries, with new boundaries and forms of governance, were being formed across Europe at that time. The new constitutions which were being drafted were based on idealism. Old institutions and sources of power were being shaken off. The Austrian Constitution of 1920, the Weimar Constitution of 1919 and the Irish Free State Constitution of 1922 were drawn up as part of the liberal and secular break from the institutional and colonial past.

While the 1922 Constitution was drawn up during a period of international idealism and liberalism, the 1937 Constitution was written during a period of comparative international conservatism, when the retrenchment of individual rights and liberal philosophy was felt by all. Thanks to the skill of its drafters, Bunreacht na hÉireann, uniquely among similar documents of that era, is a flexible and progressive document. It has served us well for 70 years. Great credit for its success must be attributed to those who drafted the Constitution. They were led by a remarkable Waterford man, John Hearne, who was the legal adviser to the then Department of External Affairs. In their recently published The Making of the Irish Constitution 1937, Professor Dermot Keogh and Dr. Andrew McCarthy noted that the drafting team transcended the limitations of their times and helped to infuse the document with balance and basic humanity.

Dr. Gerard Hogan, who is an expert on constitutional law, described John Hearne recently in The Irish Times as not only a “skilled drafter” of some repute, but also as having “an unrivalled knowledge of comparative constitutional law and international law”. When Senator Cassidy spoke at the beginning of this debate last week, he used the same quotation from Dr. Hogan’s fine piece in The Irish Times. Fianna Fáil would do well to carefully and properly give credit to those who drafted the Constitution. The importance of the role played by John Hearne and his drafting team, as well as the jurists who influenced them including the Chief Justice of the time, Hugh Kennedy, and others like Mr. Justice Gavan Duffy and Mr. Justice Kingsmill-Moore, is often overlooked in the fervour of party politics and historical legacy. It is time for us to express, on the record of the Seanad, the gratitude of the Irish people for the care, skill and ingenuity employed by Mr. Hearne and his team in drafting the Constitution. While posthumous acknowledgment is belated, it is essential in this case if we are to recognise the fine work that was done. It also serves as a means of expressing implicitly our [746]appreciation of the fine drafters of today, without whose skill and commitment this country would surely be worse off.

The Constitution has served us well. The various amendments which have been made to it over the decades reflect the change from an authoritarian and, in many ways, closed society to the more open Ireland of today. The various EU treaties which have been accepted in constitutional referendums have contributed to these changes. The most innovative aspect of the Constitution is that it is rigid — a referendum is required if it is to be changed in any way. I do not think any democrat will object to the necessity for a vote of the people of Ireland from time to time.

I commend Senator Harris, who referred to the killings of Mr. Paul Quinn and Mr. Robert McCartney and the threat posed by the Real IRA. I hope the change in people’s attitudes, which is helping them to co-operate with and trust the police forces on either side of the Border, will bring an end to the culture of omerta that has been prevalent for far too long. I hope such changes will help to crush the Real IRA, which is threatening the institutions of this State as created by the 1937 Constitution.

An Cathaoirleach: Information on Pat Moylan Zoom on Pat Moylan When is it proposed to sit again?

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh At 2.30 p.m. Dé Céadaoin seo chugainn.


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