Processes for Irish unification: Perspectives from Irish constitutional law

Professor Oran DoyleOran Doyle 191119

Editors’ Note: This post is part of an IACL-AIDC Blog Symposium on unification of the island of Ireland. The Symposium is co-hosted by the Constitution Project @ UCC Blog. Selected posts will also be co-hosted by the UKCLA Blog. The full set of posts can be found here.

Introduction

International law, UK law, and Irish law adopt the same substantive position on Irish unification: it requires the consent of a majority of people in both jurisdictions on the island of Ireland. However, they approach the question from different perspectives and with subtly different emphases. In this post, I explore the issue from the perspective of Irish law to identify what unification processes would be legally effective in Ireland.

I suggest that a referendum to amend or replace the Irish Constitution is the most plausible process. I then explore how such a referendum could be integrated with processes in Northern Ireland and the United Kingdom in a way that does not reproduce the Brexit model of leaving fundamentally important choices to be made after the referendum.

This blogpost does not advocate for a united Ireland, nor for any particular form of a united Ireland.

Bare unification

The Irish Constitution of 1937 provided that the national territory consisted of the whole island of Ireland, its islands and the territorial seas. In order to give effect to the Belfast/Good Friday Agreement (GFA) 1998, several amendments were approved by referendum.

Art 3.1 now reads:

It is the firm will of the Irish Nation, in harmony and friendship, to unite all the people who share the territory of the island of Ireland, in all the diversity of their identities and traditions, recognising that a united Ireland shall be brought about only by peaceful means with the consent of a majority of the people, democratically expressed, in both jurisdictions in the island….

This establishes unification as a constitutional commitment, the realisation of which crucially requires the consent of a majority of the people, democratically expressed, north and south.

There are four ways in which consent could be democratically expressed in southern Ireland: (a) through a statute enacted by the Oireachtas (Parliament); (b) through a referendum pre-authorised by a statute to count as the democratic expression of consent; (c) through constitutional amendment by referendum; (d) through constitutional replacement by referendum. Assuming a vote for unification in Northern Ireland as well, each of these would allow extension of the national territory to encompass the entire island, subsuming Northern Ireland into the existing state.

Unification with constitutional changes

Much of the public debate on unification assumes, however, that it would be appropriate and desirable to make significant changes to the Irish state in the event of unification, principally to make it more hospitable to new citizens with a British identity. While some such changes—for example, joining the Commonwealth—could be achieved by legislation, others would require constitutional amendment or constitutional replacement. There do not appear to be any substantive limits on the power to amend the Irish Constitution. Accordingly, the choice between amendment and replacement is not legally constrained.

Among the areas where changes would, if thought appropriate, require constitutional amendment or replacement are the following:

  • Symbolic provisions of Irish nationhood, such as the national flag, Irish as the national and first official language;
  • Power-sharing arrangements in the national legislature or government;
  • Any federal or confederal system;
  • Alterations to the amendment process, whether to change the thresholds for amendment or entrench provisions against subsequent change.

It is also likely that the continuation of devolution and power-sharing in Northern Ireland would require constitutional change. While Art 15.2 allows for the establishment of subordinate legislatures, there is no equivalent provision for subordinate executives.

Although unification could take place without a referendum, it seems likely that a referendum would be preferred in order to allow at least some changes of the type just listed. How might this referendum be integrated with approval processes in Northern Ireland?

Integration of approval processes, north and south

Aoife O’Donoghue noted the GFA requirement of concurrent approvals. If both north and south approve, it is a binding obligation on the UK and Irish Governments to introduce and support in their respective parliaments legislation to give effect to that wish. Colin Murray explained how, under the Northern Ireland Act 1998, the Secretary of State is required to call a border poll in certain circumstances. If a majority in Northern Ireland then votes in favour of unification, the Act requires her to lay before the UK Parliament such proposals to give effect to that wish as may be agreed between the UK and Irish Governments.

It is these provisions that tend towards the Brexit model: referendum followed by negotiations. But if negotiations on the detail of unification could only take place after the referendums, citizens would not have a clear idea of what they were voting for. Moreover, the UK and Irish Governments would lack a clear mandate as to the form of unification they should be negotiating.

If negotiations between the Governments broke down, an Act of the Oireachtas—legally required by the GFA—would make Northern Ireland part of Ireland as a matter of Irish law. But Northern Ireland would remain part of the United Kingdom as a matter of UK law unless or until the UK Parliament passed legislation ceding sovereignty to Ireland. It is imperative that this risk be reduced. It would be a travesty to return to a situation where Ireland and the UK disagree on the constitutional status of Northern Ireland.

The best way to reduce this risk is to settle as much detail as possible about the form of unification prior to the concurrent referendums. People in southern Ireland would vote on the principle of unification and related constitutional changes that would take effect if there were a ‘yes’ vote in Northern Ireland. People in Northern Ireland would vote on the principle of unification, equipped with knowledge of the proposed constitutional structure of the new state.

For the details of a united Ireland to be settled before the votes, three to five years should elapse between the calling of the votes and the votes themselves. This would allow for formal negotiations between the UK and Irish Governments, interaction with the devolved institutions in Northern Ireland, and the engagement of ordinary people—north and south—through citizens assemblies and other means.

Notwithstanding all this negotiation, interaction, and consultation, the referendums would essentially involve the Irish Government making a nationalist offer both to people in Northern Ireland and to its own citizens. Northern unionists would—quite legitimately—have no incentive to participate in any form of discussions or negotiations unless or until unification was approved and irreversible. The Irish Government would have strong reason to make the offer attractive to unionists, both to solicit votes and to reduce feelings of alienation in a newly unified state. But it is difficult to see any formal engagement with political unionism prior to unification.

For this reason, I previously suggested a model whereby transitional arrangements could apply for several years post-unification, while the citizens of the new state collaborated on a new constitution. There is force, however, to the criticism that a legal requirement to this effect would reintroduce undesirable uncertainty at the time of the referendums over the form of unification. I still believe that a newly unified state should consider a new constitution to which all its citizens could contribute, but this should not be legally required as part of the unification process.

Oran Doyle is a professor in law at Trinity College Dublin and a visiting faculty member at the University of Pennsylvania Carey Law School. This post draws on a forthcoming working paper, co-authored with David Kenny, to be published by the Working Group on Unification Referendums on the Island of Ireland, convened by the Constitution Unit of University College London and supported by generous funding from the British Academy.

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A Referendum on a United Ireland: Perspectives from UK Constitutional Law

Colin MurrayColin Murray

Editors’ Note: This post is part of an IACL-AIDC Blog Symposium on unification of the island of Ireland. The Symposium is co-hosted by the Constitution Project @ UCC Blog. Selected posts will also be co-hosted by the UKCLA Blog. The full set of posts can be found here.

The Northern Ireland Act 1998, a statute passed by the Westminster Parliament, implements the Belfast/Good Friday Agreement (GFA) within UK law. It declares that Northern Ireland remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a referendum (the ‘principle of consent’). However, if a majority in such a vote favours a united Ireland, the UK Government must lay before Parliament any proposals to give effect to that outcome which it agrees with the Irish Government.

The Act also provides loose criteria for calling a so-called ‘border poll’. The Secretary of State has a general power to call a referendum on reunification at his discretion. This power is sometimes forgotten against the fraught backdrop of Brexit, but only a few years ago Arlene Foster, Northern Ireland’s current First Minister and leader of its largest Unionist party, the Democratic Unionist Party, was suggesting using this power to affirm its place in the UK. The new Secretary of State, Brandon Lewis, is however under an obligation to institute a referendum if at any time it appears likely to him that a majority of those voting would support a united Ireland.

These provisions were the subject of heated debate in the House of Commons on the evening of 22 July 1998. It was a night of Unionist unity. The Reverend Ian Paisley, the leading unionist opponent of the Agreement, proposed adding a requirement of a cross-community Assembly vote in support of a reunification referendum before it could be triggered. Even David Trimble, who as leader of the Ulster Unionist Party was one of the Agreement’s most important architects, couldn’t resist tabling an amendment which would have required a 60 per majority referendum outcome before the UK Government would take steps towards unification.

The GFA, however, settled the terms of the UK’s obligations word for word; a majority meant a simple majority of those voting in a referendum. The amendments were defeated by overwhelming majorities. Perhaps as a consequence of this distraction, however, the debate neglected various important aspects of the referendum process. Neither the Agreement nor the Northern Ireland Act details how the Secretary of State should form a judgment that there is a likelihood of a majority in favour of a united Ireland. Therefore, although the Act imposes a duty on the minister to act if that condition is reached, the Act appears to hand unrestricted discretion to the minister in how to gauge the opinion of the people of Northern Ireland.

In the words of Paul Murphy, the junior minister tasked with responding to the debate, the ‘spirit of the agreement is that the Secretary of State should, when she or he thinks fit … hold a border poll’. Ian Paisley fulminated about the prospect of such an unrestricted power, and Murphy was obliged to clarify that Parliament would be involved in approving the referendum process:

In order for the mechanics of that poll to be agreed by Parliament, there would be an opportunity … for both Houses to review the Secretary of State’s decision if it were judged rash and ill-defined and if it was believed that a border poll was being held without basis in reason or common sense. I have not the slightest doubt that hon. Members in this and the other place would point that out during such a debate.

In other words, the UK Parliament would be able to reject the statutory instruments that would be needed to organise a referendum if it thought that such a vote was a bad idea. But on the opposite side of the coin, there is no meaningful parliamentary process for pushing a recalcitrant Secretary of State towards triggering a referendum if the UK Government is unwilling to act upon evidence of a shift in opinion in Northern Ireland towards favouring (re)unification.

In recent years the UK Government has repeatedly refused to be drawn upon how it conducts its assessment of public opinion in Northern Ireland (the weight, for example, it gives to opinion polls or election results in Northern Ireland). Parliamentary questions have been dismissed on the basis that the Secretary of State does not believe that the conditions triggering the duty to hold a referendum have been met. Given concerns over Brexit’s impact upon Northern Ireland, it was almost inevitable that there would be a turn to law to understand the limits of ministerial discretion.

The case of In re McCord, decided by the High Court of Justice in Northern Ireland in June 2018, challenged the failure of the Secretary of State to make public the grounds for determining public opinion on (re)unification. Sir Paul Girvan swiftly dismissed the challenge:

Evidence of election results and opinion polls may form part of the evidential context in which to exercise the judgment whether it appears to the Secretary of State that there is likely to be a majority for a united Ireland. The overall evidential context on how it should be analysed and viewed is a matter for the Secretary of State.

It was always going to be an uphill struggle to convince the courts to tie the hands of ministers over such a decision, but the brusque tone of this judgment calls into question the willingness of the courts to deal with issues around the interpretation of fundamental aspects of the GFA’s incorporation into domestic law.

In re McCord is currently under appeal. Even if that appeal is unsuccessful, the Northern Ireland Court of Appeal might at least take the opportunity to clarify the boundaries of the executive discretion. Even if a decision over a reunification referendum is based upon the Secretary of State’s assessment of the state of public opinion amongst voters in Northern Ireland, that assessment has to be conducted on a rational basis (requiring what Paul Murphy described in 1998 as ‘a proper assessment of the political circumstances at the time’). On this basis, the Court could take the opportunity to clarify that the rationality of a failure to act upon a body of evidence (either opinion polls or election results) which suggested that there could be majority support in Northern Ireland for unity would be open to legal challenge.

Even after the trigger point for a referendum has been reached, the open nature of the Northern Ireland Act’s key terms generate the potential for political and legal wrangling. The electorate for a referendum is uncertain; the GFA’s definition of the people of Northern Ireland would necessitate the creation of a special franchise which could take years to put in place. And then there is the guarantee of the principle of consent itself; the legislation only requires the UK Government to ‘lay before Parliament … proposals to give effect to that wish’. The legislation falls short of an obligation on the UK Parliament to give effect to a referendum outcome in favour of a united Ireland (even if the notion of such an ‘obligation’ makes any sense in a constitutional order which prioritises the sovereignty of the sitting Parliament).

There is thus no mechanism under the Agreement, or under the Northern Ireland Act, by which the UK Government can be pressurised into authorising a referendum on the (re)unification of Ireland. Sinn Féin can pledge, in its manifesto for Ireland’s 2020 General Election to ‘[s]ecure a referendum, north and south, on Irish Unity’, but even if it enters government in Ireland having secured the largest first-preference share of the popular vote, it has no means of delivering upon this promise. If the Secretary of State for Northern Ireland does not accept that there could be majority support for a united Ireland, he is under no duty to call a referendum.

These shortcomings mean that nationalist politicians should have had as many questions over the workings of a referendum on unity as their Unionist counterparts. But the one-sided nature of the parliamentary debate demonstrated either a trust in the UK Government’s bona fides or a prioritisation of getting the power-sharing institutions in place. This is not to say that the UK Government will renege on its longstanding commitment to having ‘no selfish strategic or economic interest in Northern Ireland’ or that it would seek to thwart majority support amongst the people of Northern Ireland for unity. But there are few legal avenues for enforcing its pledges.

Colin Murray is a Reader in Public Law at Newcastle University (UK). This post forms part of the ESRC Governance after Brexit Performing Identities project and is drawn from the article, ‘Life after Brexit: Operationalising the Belfast/Good Friday Agreement’s Principle of Consent’ forthcoming in the Dublin University Law Journal (co-authored with A O’Donoghue).

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International law and the Island of Ireland’s future

Professor Aoife O’DonoghueAoife O'Donoghue

Editors’ Note: This post is part of an IACL-AIDC Blog Symposium on unification of the island of Ireland. The Symposium is co-hosted by the IACL-AIDC Blog and the Constitution Project @ UCC Blog. Selected posts will also be co-hosted by the UKCLA Blog. The full set of posts can be found here.

As international law is the arbiter of statehood one would be forgiven for imagining that it delineates the pathways for new/(re)unified/breakaway states. The reality is different. The unhelpfulness of international law derives from its innate conservative nature. Change is unwelcome. Self-determination is so circumscribed that it is almost never fully legal until after the fact. Changing borders, say to alter the Monaghan polyp (a small piece of territory in the Republic of Ireland that is almost completely surrounded by UK territory), is inadvisable. Conversely, international law’s equivocation means where there is agreement, states are free to act once there are no violations of human rights or third-party rights. Recognising any changes is a matter for other states and international organisations. And it is states, not ‘people’, that are paramount. The Belfast/Good Friday Agreement (GFA), The Belfast/Good Friday Agreement (GFA)—the agreement between the parties in Northern Ireland and the related international treaty between the British and Irish Governments that was central to the peace settlement in 1998—sits within the transitional justice tradition making combined international/constitutional insight essential. This post sets out to provide the former.

At times, treaties are thrown into political debates as arbiters of rectitude. When states act unilaterally and contravene treaties, they are rightly condemned, but this does not mean that consensual solutions cannot be found or that contested meanings do not remain. Even if the GFA is far from perfect, it is settled lex specialis in the Northern Ireland context. The GFA resolves some issues, but not all. Its mixed character, its unintended consequences, its (intended) constructive ambiguities, Brexit and its evolution, all form part of the shaping of the ‘constitutional question’. The Vienna Convention on the Law of Treaties (VCLT) provides a baseline of good faith implementation and interpretation and incorporates modifications, including the St Andrews Agreement and New Decade New Approach, but the GFA’s text is paramount.

The distinction between unification or reunification has few legal implications, but it has political meaning for some. In Was Ireland Conquered Anthony Carty examines international law’s status through the Norman invasion, Surrender and Regrant, Plantations, the Act of Union, partition, the Government of Ireland Act 1920, and the 1921 Treaty, demonstrating the complexities in reading international law in its historical context. In their 2013 Government Report on Scottish Independence Boyle and Crawford state that before the 1801 Act of Union Ireland, unlike Scotland, was a colony. While under the 1921 Treaty it is likely that reunification is accurate, in practice there was scarcely a day between its coming into operation and Stormont’s notification to remain in the UK. A supplementary question is when Ireland achieved statehood. Whatever status the UK’s imperial constitutionalism may have granted, international law is the authoritative regime, and effective independent statehood was likely achieved in the mid-1920s.

International law pivots around the right to self-determination rather than on its content. External and internal self-determination, as well as remedial, colonial and seccessionary variants, are frequently utilised categorisations, but the GFA’s existence makes the classification of processes in Ireland largely irrelevant. Ireland was excluded from self-determination’s first international legal iteration at the Versailles Peace Conference, but both it and the UK have been amongst the states creating customary international law and UN Charter practice. As part of decolonisation, self-determination has its strongest legal form, but beyond this context its content remains much debated. Fortunately, the GFA settles these issues by recognising the self-determination claims of ‘the people of Northern Ireland’ and the ‘people of Ireland’; and the 1998 referenda democratically legitimates that recognition.

While the Northern Ireland Act 1998 and Ireland’s various constitutional and legislative practices (discussed elsewhere in this symposium) determine how both states go about referendums, the GFA sets the frame. Under international law, a referendum favouring secession does not necessarily give rise to independence, rather it begins discussions on settlement options, including enhanced autonomy.  However, under the GFA, the UK is bound to the referendum’s outcome. Ireland reserves the incorporation of Northern Ireland to determination via its domestic structures; another exercise of self-determination. The GFA absolutely requires a referendum in Northern Ireland but the difference in language for Ireland theoretically opens possibilities for alternative modes here. The GFA states that processes on either side of the border happen concurrently, which appears to require simultaneousness. Under the terms of GFA ‘the people of Northern Ireland’ are ‘all persons born in Northern Ireland and having, at the time of their birth, at least one parent who is a British citizen, an Irish citizen or is otherwise entitled to reside in Northern Ireland without any restriction on their period of residence’. This excludes Irish citizens born in the Republic living in Northern Ireland from the franchise, but should both franchises align if concurrence is also important? 16-year olds voted in the Scottish referendum, should that be extended? London and Dublin will need to settle these questions early in any planning.

Just as in 1921, two new states are created. Both unification and break-up create specific issues including, amongst others, liability for state pensions, international debt, responsibility for any ongoing litigation and liabilities. These are normally settled via a treaty which conforms to the Vienna Convention on State Succession 1978. While there is no international legal prescription on state names, as Greece and the Republic of North Macedonia demonstrate, long-running complications can ensue. We could assume the names would be Ireland and the United Kingdom of Great Britain. ‘Clean slates’ as Czech Republic and Slovakia chose, where both states began afresh with their international obligations, is highly unlikely as the UK could wish to continue to hold its permanent seat on the UN Security Council and Ireland its EU membership. Depending on the timings of a new/revised constitution a lacuna of human rights obligations that conform to GFA standards, for instance, on parity of esteem (the central principle enshrining the need for recognition and respect for both main communities of Northern Ireland), could be created. However, both States are signatories to numerous human rights treaties including the European Convention on Human Rights and have domestic and shared human rights monitoring bodies (as part of the GFA) which should provide short-term fixes for both rights existence and enforcement.

Should either state fail to comply with the GFA, there are limited avenues for redress. For instance, should the Secretary of State for Northern Ireland refuse to hold a referendum both domestic and international options are possible. A violation of the treaty would be an international wrongfully act under The Articles on Responsibility of States for Internationally Wrongful Acts, but there is no dispute settlement clause in the GFA. Ireland excluded the International Court of Justice’s jurisdiction over disputes regarding Northern Ireland. General Assembly members could ask for an Advisory Opinion as per the Chagos Archipelago Opinion, but this would take a major diplomatic effort. Both states could create an ad hoc tribunal, but domestic avenues of judicial review are potentially more effective.

The GFA is not temporally limited. It contains future locks where ‘whatever choice … the power of the sovereign government with jurisdiction there shall be exercised with rigorous impartiality’.  In 1998, Ireland’s Attorney General highlighted that ‘the commitments in the British-Irish Agreement to equality of treatment and parity of esteem, and to the dual citizenship rights of the people of Northern Ireland, are explicitly to apply irrespective of the status of Northern Ireland’. East-West cooperation and birth right provisions to claim UK citizenship and parity of esteem are set to continue even if a united Ireland comes to pass.

The GFA settles many issues, and other state practices are informative, but enough issues remain to demand imaginative forethought from all concerned parties.

Aoife O’Donoghue is a Professor of International Law and Global Governance at Durham University Law School. This work forms part of an ESRC Governance after Brexit project Performing Identities and the article, co-authored with CRG Murray ‘Life after Brexit: Operationalising the Belfast/Good Friday Agreement’s Principle of Consent’ is forthcoming in the Dublin University Law Journal.

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Irish Unification: Processes and Considerations

Oran Doyle 191119Professor Oran Doyle

Editors’ Note: This post is part of an IACL-AIDC Blog Symposium on unification of the island of Ireland. The Symposium is co-hosted by the IACL-AIDC Blog and the Constitution Project @ UCC Blog. Selected posts will also be co-hosted by the UKCLA Blog. The full set of posts can be found here.

The Belfast/Good Friday Agreement (GFA)—the agreement between the parties in Northern Ireland and the related international treaty between the British and Irish Governments that was central to the peace settlement in 1998—built a new model of power-sharing politics on the foundation of a territorial compromise. On the one hand, Ireland and Irish Nationalists accepted the legitimacy of Northern Ireland’s status as a component part of the United Kingdom. They thereby relinquished a territorial claim to the whole island of Ireland that had been advanced in different ways since independence and partition of the island of Ireland in 1921-22. On the other hand, the United Kingdom and Ulster Unionists accepted that Northern Ireland would only remain part of the United Kingdom for as long as a majority of people in Northern Ireland so wished it. They thereby relinquished the right of the United Kingdom to preserve its own territorial boundaries.

In 1998, Irish unification seemed a distant prospect. The priority for most Irish nationalists—and certainly for all Irish Governments—was to make the new political arrangements work, not to advocate for a united Ireland. But demographic change was slowly producing an electorate more open to unification, and Brexit has now dramatically increased the attractiveness of a united Ireland replete with EU membership. As a result, although opinions on the likelihood of a united Ireland diverge widely, the territorial compromise of 1998 is under pressure.

The 1998 Agreement provides some (albeit not extensive) guidance as to the procedures through which unification could occur. On one reading, the Agreement envisages the standard UK approach to referendums that was subsequently practised for Scottish Independence and Brexit. First let people vote for a broad political direction; then require governments with conflicting objectives to negotiate a deal that respects that popular mandate.

This Brexit-referendum-model would prevent voters from fully understanding what they are voting on. Governments would be under a political imperative to do something, but would lack a political mandate for any particular course of action. This symposium is predicated on the belief that if unification is to occur, issues should be explored in advance and voters should have a clear idea of what they are voting for.

Part I of the Symposium explores the processes through which unification could occur from the perspective of public international law, United Kingdom law, and Irish law. Aoife O’Donoghue places Northern Ireland within general international law on territorial change, with a particular focus on the terms of the 1998 Agreement.

Colin Murray explores the implications of the Northern Ireland Act 1998, frequently characterised as the Constitution of Northern Ireland. Oran Doyle explores the implications of the Irish Constitution, itself amended in 1998 to reflect the current territorial compromise.

Part II of the Symposium identifies some of the constitutional issues that would need to be addressed in the context of unification. Of course, unification would involve far more than these constitutional issues—voters are likely to be as concerned by the future of the health service, for instance—but the constitutional decisions will at least frame many of the other issues.

Brendan O’Leary addresses what is probably the core constitutional question: would a unified Ireland be a unitary state—essentially just absorbing Northern Ireland into the existing Irish state—or would some special status for Northern Ireland continue, whether through devolution, federation, or confederation?

If unification occurs, it is likely that close to one sixth of the population of the new state will have objected to it. Brice Dickson therefore identifies concerns that former Unionists, i.e. those with a continuing British identity, might have about the structure of a united Ireland. David Kenny addresses the same questions from the opposite perspective: what concerns might the citizens of the current Irish state, as well as nationalists in Northern Ireland, have about a united Ireland?

Managing the sectarian divide between unionists and nationalists can sometimes dominate discussion of constitutional development. Redressing this balance, Colin Harvey considers the importance of rights and equality in a unified Ireland. Etain Tannam then concludes this Part with a consideration of the role of the British and Irish Governments during and subsequent to any unification process.

Discussion of Irish unification often occurs within a national—and perhaps nationalist—bubble. Part III of the Symposium aims to pierce that bubble by drawing on the experience and expertise of those who have considered other territorial adjustments and unification processes.

Anna-Katharina Mangold suggests some lessons from the process of German unification. Cheryl Saunders draws on her experience of constitutional transitions around the world, including her work as Senior Technical Advisor to the Constitution Building Program of International IDEA.

The participants in this symposium hold a wide range of views on the desirability of a united Ireland. Some may support it; some may oppose it; some may have no view at all. They all share their expertise, however, in the hope of informing public discussion and provoking public debate.

Oran Doyle is a professor in law at Trinity College Dublin and a visiting faculty member at the University of Pennsylvania Carey Law School.

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Constitutional Change and the 2020 General Election Party Manifestos

 

Dr Seán Ó Conaill

Politicians are no strangers to occasionally shouting about the Constitution either proposing a referendum and constitutional change to fix a topical issue (such as the level of personal injury awards ) or, more usually for Government parties, offering the Constitution as a reason why a particular law or policy cannot happen (such as rent freezes).

These issues can come up in a seemingly ad hoc manner during the normal cut and thrust of political discourse but when it comes to General Elections parties tend to solidify their plans for constitutional change in their manifestos. Over the years some of the proposed changes can find their way through the Dáil and end up getting put to the people as a result of a manifesto promise while others can beConstitution of Ireland best described as fanciful. The nature of the proposed amendments often arise in response to a current crisis but longer term strategic changes can come forward in manifestos too.

In the 2016 general election for example Fianna Fáil proposed an amendment to protect private pension funds from Government levies – this followed a backlash to the Fine Gael- Labour government placing a levy on such pensions. Fine Gael and Labour proposed a referendum on Article 41.2.1 of Bunreacht na hEireann regarding a “woman’s life within the home”. The Social Democrats proposed a referendum on the public ownership of a water utility.  None of these proposals saw the light of day although they had varying degrees of consideration. The absence of a promise to enact a particular change does not however, preclude it ever happening. Neither Fianna Fáil nor Fine Gael committed expressly to holding a referendum to repeal the 8th Amendment in their 2016 manifestos for example.

The main party manifestos for the 2020 general election make a number of proposals for change with some parties agreeing that certain amendments should be brought forward while some proposals are being pushed by one party only. The below is by no means a full picture of all Constitutional issues highlighted by parties – it is instead an look at some of the more clearly expressed proposals for constitutional amendment contained in the main party manifestos.

Fine Gael’s manifesto is fairly light on talk of constitutional amendment however it does contain a commitment to amend the constitution to allow the Oireachtas to set guidelines on insurance premiums should other proposed reforms not work out. It is not entirely clear what exactly is envisaged here and what specific amendment is required to obtain this aim.

Fianna Fáil’s manifesto is similarly shy on proposing Constitutional amendments although there are some commitments to ensuring that existing constitutional rights, particularly in the area of special needs education, can be vindicated. Reference is also made to the constitutional issues surrounding the status of Northern Ireland and how changes could come about.

Sinn Féin’s manifesto makes similar references with some discussion on the need for a new constitution in the event of a United Ireland happening. Differently to the FF and FG Sinn Féin are proposing a number of constitutional amendments. They suggest that Ireland’s neutrality be constitutionally recognised to allow the Defence Forces to “to continue its important role as peacekeepers across the globe.”. Sinn Féin (similarly to a number of other parties) are proposing to enshrine the right to housing in the Constitution. Sinn Féin do however clarify that their wording “does not mean that Government would have a responsibility to give every person a set of keys to a new home. Rather, it would place a strong obligation on Government to vindicate the rightsupreme court to a home through its laws, policies and budgets.”. Sinn Féin are also continuing on the 2016 hot topic of putting the public ownership of a water utility on a constitutional basis. Sinn Féin finally want to amend the constitution to remove the controversial ‘money message’ procedure for striking down opposition bills. Although the issue has attracted considerable attention during the campaign there is no mention of the Special Criminal Court in the Sinn Féin manifesto.

The Labour Party have taken a slightly different tack.  For their part they pledge to establish a new Convention on the Constitution which would be informed by citizens’ conventions with a view to proposing a new modernised constitution rather than continuing a process of “piecemeal” amendment. They propose that this modernised Constitution would include recognition of the diversity of modern Ireland; full gender equality; permanent public ownership of utilities, including Irish Water; recognition of the right to housing and other socio-economic rights. In terms of more traditional proposals for amendment Labour have pledged to recognise the right of access to work places by a trade union representative through a constitutional amendment if necessary.

The Green Party , like Sinn Féin and others are proposing an amendment around the provision of water while also taking the opportunity to consider a wording which would “enhance the rights of the environment”. The Green Party are proposing an amendment which would “guarantee the right to a home” which although similar to the Sinn F3672625058_4952490634éin pledge does use a different wording – whether there would be an appreciable difference between the right to a home and the right to housing is a matter of interpretation. The Green Party also wish to amend the constitutional clause on a woman’s place in the home to “both remove sexist language and to reflect the importance of all forms of care and of those being cared for”. The Green Party are also proposing a number of changes in procedural matters such as the age of voting in elections which they propose to lower to 16 and the introduction of an amendment to allow citizens directly initiate referendums to amend the Constitution in a manner similar to many US States.

The Social Democrats uniquely have pledged to reform the area of property rights in the constitution “to better reflect the common good so that issues in relation to both private rented accommodation and upward only rent reviews on commercial property can be addressed.”. Similarly to many other parties they are proposing to insert a right to housing into the Constitution “in a way that would place a significant responsibility on the Government to vindicate this right through its actions.”.

People Before Profit’s manifesto, similarly to Fianna Fáil and Fine Gael, is lighIrish Watert on proposed constitutional amendments but it does include a pledge to put forward an amendment to recognise the right to housing. Interestingly although they do recognise what they term the “human right” to water they have no express proposal for recognising this right on a constitutional basis in their manifesto.

Overall the main parties make a number of proposals with parties in the middle/right tending not to propose too much by way of amendment and those on the broader left proposing a number of similar amendments – water and housing featuring strongly – which each party having some unique offering. The extent to which any of the proposed amendments will see the light of day is highly questionable if past election cycles are anything to go by however.

Dr Seán Ó Conaill teaches Dlí Bunreachtúil (Constitutional Law) at the School of Law at University College Cork.

 

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