Republic of Ireland: from comprehensive constitutional revision to punctual change
As happened in Iceland, the outburst of the 2008 financial crises strengthened the claim for a deep constitutional review among Irish society.6 The failure of Ireland's governmental institutions to anticipate and then adequately address the economic difficulties contributed to a substantial decrease in recorded levels of trust in the Irish government (O'Sullivan et al., 2014, p.
554). Even thefirst public reaction adopted an anti-establishment character, demanding more efficient control and accountability of public bodies (De Londras and Morgan, 2013, p. 179). Protests, notwithstanding, did not become a breakup. Changes would be developed within the existing constitutional amendment procedure and the replacement of the political cadres would take place through ordinary electoral processes, such as those in the 2011 general election, which swept from power the party (Fianna Fail) that had formed the Irish government for 61 of the 79 years since it first came to office in 1932. However, the fact that even in 2011 the voters also chose other establishment parties (though they had been out of power for 14 years) also reduced the momentum for a more radical constitutional reform.
Already in the previous mandate the Parliament Joint Committee on the Constitution had debated the need for a constitutional amendment focused on electoral reform (Colic, 2014, p. 10; Suteu, 2015, p. 264). The Committee report, issued in July 2010, proposed the establishment of a Citizens' Assembly to consider this question, a concern that was shared by the major Irish political parties which concurred to the 2011 election supporting the call for a Constitutional Convention “to consider comprehensive reform” and, thus, extended to other issues beyond electoral design. In July 2012, the Irish Parliament passed a resolution establishing the terms for Convention integrated by (1) a majority of citizens randomly selected among those entitled to vote at a referendum (66 members), (2) 33 elected legislators of the political cadres (29 of these from the Irish Parliament and four from the Northern Ireland Assembly), and (3) the Chairperson, Tom Arnold, appointed by the Government (Carolan, 2015, p.
739; Farrell, 2014, pp. 103-104; Farrell et al., 2017, pp. 122-123; Suteu, 2015, pp. 265-266). This composition of the Convention led to different sorts of criticisms. Previous experiences on assemblies created for debating constitutional changes proved that a process completely independent of party politics fostered the risk of political detachment.7 But, in an opposite direction, it was argued that the involvement of political establishment members would lead to the blocking of a radical reform (Carolan, 2015, p. 740; Farrell, Harris, and Suiter, 2017, pp. 125-126). There was generally the fear that the politician members might seek to dominate the discussions and the decision-making proceedings. This fear was, however, likely to be mitigated by training facilitators to ensure that all members had an equal chance to contribute to discussions and by secret ballot (Farrell, Harris, and Suiter, 2017, p. 126). In another sense, the representativeness and the inclusiveness of randomly selected citizens by a survey company brought about lots of doubts: was, thus, statistical representativeness by itself adequate to ensure the legitimacy of the body? (Carolan, 2015, p. 742). Was a statistically representative sample of citizens enough to represent the attitudes that exist within the community at large on different controversial issues? What contribution was made by the random selection of citizens to the Convention beyond what was provided by ordinary representatives in the legislature? Which were, in short, the merits of the randomly selected citizens in order to debate on the grounds of the political system? (see Olafsson, 2021).Such questions, however, did not thwart the Convention’s work which began on December 1, 2012, and sought to produce reports on several constitutional issues [the Convention terms of reference listed eight issues but the Convention proposed other relevant amendments (Farrell, Harris, and Suiter, 2017, pp. 122-124)]. The government, in addition, committed both to respond to each Convention’s report within four months and to indicate a time frame for submitting accepted recommendations for a referendum (Suteu, 2015, p.
266). However, this point was also controversial since it was considered that the government had the final word in deciding which questions would be addressed to the people in the referendum and that the Convention only played an advisory role (Farrell, Harris, and Suiter, 2017, pp. 122-129). The established constitutional amendment process did not render other options. Since the Constitution provided that an amendment has to be approved by both Houses of Parliament before holding a referendum, it was considered that the government, which typically controls a majority in the Parliament, had the power to choose the issues put to the people in a referendum. The gathering of the Convention did not preclude, accordingly, the following of the constitutional amendment rules.The Convention received thousands of submissions, especially on the more controversial issues discussed such as same-sex marriage and the relationship between church and State. In the same way as in the Icelandic Constitutional Council, the Irish Constitutional Convention works were uploaded onto its website and social media such as Facebook, YouTube, and Twitter, which were used in order to interact with the citizenry (Suteu, 2015, p. 267).
Yet what seemed an initiative leading to a substantial amendment of the Irish Constitution as an outcome of a complex and inclusive participatory process (28 discrete recommendations had been made by the Constitutional Convention) was finally reduced to only three issues: the recognition of the right to marriage for same-sex couples, the reduction of the minimum age of 35 years to 21 to access the Presidency of the Republic, and the removal of blasphemy as an exception to the right to express convictions and opinions freely. In 2015, two referenda were held on both the question of same-sex marriage and the minimum age to accede to the Presidency of the Republic, but only the recognition of the right to marriage of same-sex couples enjoyed majority support among the voters (the reduction of the threshold age to be President of the Republic was rejected).
Regarding the removal of blasphemy as an exception to free speech, the Constitutional Convention proposed in 2013 the replacement of blasphemy in the Constitution with a prohibition on incitement of religious hatred, but the reform was suspended until 2017 when it was announced that the English comedian Stephen Fry was under criminal investigation for blasphemy about comments made in a 2015 interview with Gay Byrne. The public indignation caused by the criminal charges against Fry led the government to accept the holding of a referendum on simply removing the word “blasphemous” from Article 40.6.1 of the Constitution (different from what the Constitutional Convention had proposed). The referendum took place on October 26, 2018 and the “Yes” won by 64.85 per cent of the vote, allowing the Thirty-Seventh Amendment of the Constitution to be passed.
But there was no further progress concerning the remaining issues handled by the Convention. The government infringed the terms on giving response to them, and that happened even considering that the executive had committed itself to call for a referendum in some additional questions, such as in the case concerning the reduction of the voting age to16 (Farrell, Harris, and Suiter, 2017, p. 131).
In parallel to the work developed by the Constitutional Convention, there was launched the proposal to abolish the upper house of Parliament, the Seanad. Such an amendment would have represented by itself a relevant change for the Irish constitutional system, since it intended not only to abolish the Senate but also to reconstitute the legislature as a unicameral Parliament (Albert, 2019, p. 66). Such change would have concerned the nature of legislative representation, the lawmaking process in its entirety, the separation of executive-legislative powers, and the functioning of democracy (Doyle, 2013a, pp. 199-200). The Thirty-Second Amendment of the Constitution Bill concerning the Senate issue contained therefore over 40 discrete amendments to the Constitution (Albert, 2019, p.
66; Doyle, 2013b). However, none of these questions were discussed through the Constitutional Convention nor were attached to the comprehensive participatory process to amend the Constitution. The Irish government precluded the Convention from being involved in the design of the legislature (Doyle, 2013b), a decision that confirmed that popular participation on the debate around structural issues had its boundaries. Citizenry only had the opportunity to debate on the abolition of the Senate, and all the linked amendments regarding the legislative functions on occasion of the campaign preceding the holding of the referendum on the bill. In the fall of 2013, notwithstanding, Irish voters narrowly refused the constitutional amendment proposal by 51.8 per cent to 48.2 per cent (Albert, 2019, p. 66).Both the 2016 and the 2020 Irish general elections showed a fragmented legislature that even made it difficult to form government, not to mention to go ahead with an ambitious constitutional reform. However, between both elections was discussed and approved another amendment to the Irish Constitution. That change was of the utmost transcendence given the background of Irish constitutional history: the Thirty-Sixth Amendment which permitted the Irish legislature to regulate for abortion (De Londras and Enright, 2018). The ThirtySixth Amendment repealed the Eighth amendment, introduced in 1983, that had safeguarded the right to life of the unborn, and had made abortion illegal unless there was a serious risk to the life of the mother. By the beginning of the 2010s, the social atmosphere regarding the question of the termination of pregnancy had completely changed (partially motivated by the death in 2012 from septic miscarriage of Savita Halappanavar, whose request for an abortion was denied) and in the run up to the 2016 general election, five parties concurred with the commitment to hold a referendum to repeal the Eighth Amendment. When the Fine Gael-led government was formed and Enda Kenny took office as Taoiseach,
“New constitutionalism” & constituent power 187 he promised a randomly selected Citizens' Assembly to report on possible changes to the Eighth Amendment.
The Citizens' Assembly (inspired in the citizenry branch of the previous Constitutional Convention) discussed the issue from November 2016 to April 2017, with invited experts and stakeholders, and voted to recommend repealing the existing text and replacing it with an explicit mandate for the Oireachtas to legislate on abortion. The bill was discussed and passed by the Irish legislature and ratified in a referendum held on May 25, 2018, in which the Yes won, gathering 66.4 per cent of the votes with a remarkably high turnout (64.13 per cent). The Thirty-Sixth Amendment to the Irish Constitution concerned a very sensitive issue, caused an unprecedented popular mobilization, and the citizenry was involved in the deliberation through innovative mechanisms such as the Citizens' Assembly.Popular mobilization and discussion on abortion and same-sex marriage (after all, together with the removal of the offence of blasphemy from the Constitution, same-sex marriage was the only relevant issue that came out from the Constitutional Convention) shows to what extent a constitutional change depends on the presence of a conflict hovering in society (and on the passion that it awakes) to go forward. As had been pointed out (Sinnott, 2002, p. 815), Irish politics have been for decades dominated by a powerful religious-conservative versus secularliberal cleavage regarding to which both groups, conservative and liberals, had developed strategies grounded on constitutional change to advance in their own position (Doyle, 2017, p. 11). Whereas in other contexts such controversies on moral issues would only be displayed through ordinary legislation in Ireland, given the influence of the Catholic Church since the foundation of the State, debates around sex, marriage, abortion, and blasphemy had been constitutionalized and, indeed, as we have seen, were the ones to be considered and approved by formal constitutional amendment in the last decade. Regarding same-sex marriage, for instance, it has been admitted that no constitutional change was required to allow it (O'Mahony, 2012; Tobin, 2016) however, taking into account the position of other significant constitutional actors on the question [such as the courts, arguing for the constitutional ban of same-sex marriage (O'Mahony, 2012, pp. 200-214)] and the aforementioned context of conservative-liberal disputes, the question was finally raised both by the legislature and the Constitutional Convention to the constitutional track.
Allowing the regulation of abortion or same-sex marriage instigated citizenry participation and reflected the ascendency of the liberal part of the cleavage and the dilution of the Catholic characteristics that had marked the 1937 Irish Constitution (Doyle, 2017, p. 10) but it is arguable that such changes represented a real constitutional transformation in the sense here described as a reassignment of powers. If we consider that such a series of constitutional changes represent a marginalization of the conservative trend and a minimization of the Catholic Church's power upon Irish institutions, and we observe that no violence was displayed in the process, the Irish reforms of 2015 and 2018 might be deemed as one of the scarce examples of a constitutional transformation that respects the no victims rule (though maybe a feminist account would consider, not misguidedly,
that Savita Halappanavar's death as a consequence of the septic miscarriage encroached that rule).
At any rate, in my opinion, it is difficult to find even within the Irish context and regarding the Catholic Church (which, in another sense, has seen its influence reduced at the global scale) a regime change by constitutionally regulating abortion, same-sex marriage, or by removing blasphemy as an exception to free speech. At the end of the day, the conservatives still play a relevant role in Irish politics, even integrate the majoritarian parties (though possibly not as they did some decades ago) and, as we have seen, the more radical constitutional change envisaged by the beginning of the 2010s (which might have provided the complete reallocation of power) fizzled out.
Why, thus, was comprehensive constitutional reform abandoned in the Irish case? Several hypotheses might be suggested: as happened in Iceland, the complexity of citizenry involvement in discussing structural questions of the amendment of the Constitution paralyzed the process and the dynamic of normal politics devoured the higher lawmaking pretensions. As we have seen, the Irish government maintenance of the final word regarding any recommendation on constitutional reform was deemed also as a shortcoming that undermined the ambition of the change. The concern for opening channels of direct political participation did not avoid placing the final decision in the hands of the representatives. Interests regarding the short-run political questions prevailed upon the urge to create a brand-new constitutional framework.
Some observers, however, considered the Irish Constitutional Convention a success since at least the question concerning same-sex marriage had been passed resulting from a process of deliberation (see Suteu, 2015, p. 267). But adopting same-sex marriage is not a total revision of the constitutional pillars, and certainly does not represent the emergence of the constituent power, and one might consider that it may even be doubtful if regulating such questions concerning family law belongs to the realm of constitutional politics. In another sense, if the economic crises instigated the call for a total constitutional revision, it was not clear if, already from the proposals of the Convention, the recommendations had anything to do with the issues highlighted by the economic crisis (what connection may we find, for instance, between the social and economic collapse, and samesex marriage?). Anyhow, as the intensity of the economic malaise diminished, also so did the ambition for constitutional reform which basically spun around issues that had already been discussed at different levels (constitutional, legislative, or judicial) in the previous decades.
This latter consideration leads us to a general observation in regard to constituent processes developed in stable democracies and, as both in the Irish and in the Icelandic cases, grounded on the principle of public engagement: the point is that once the people themselves are called to discuss constitutional reforms, even to the degree of setting up the constitutional agenda (as did the random citizens selected for the Irish Constitutional Convention), they do not really know what they are expected to deliberate on. Arguing for a radical measure against the structure of power (to which the constitution represents the legal
“New constitutionalism” & constituent power 189 translation as, let's say, against the free market economy) is excluded from the outset. That is probably why the deliberation is reduced to secondary things (such as the age of voting or same-sex marriage) that do not really put at stake the foundations of the system.