Constitution Project @ UCC

Yesterday’s Supreme Court judgment, which declared the Registered Employment Agreement system unconstitutional, comes as no surprise. McGowan v the Labour Court, available here, has been a protracted and complicated case but the central issue, which was heard in the Supreme Court, on the constitutionality of part III of the Industrial Relations Act 1946, was quite straight forward.

What is a Registered Employment Agreement?

Registered Employment Agreements (REAs) were introduced under the Industrial Relations Act 1946. Part III of the Act allows employment agreements to be registered with the Labour Court, provided that certain criteria are satisfied. Once registered, the agreement becomes legally binding, not only on the parties to the agreement but on every worker and employer in that sector. The agreements are normally negotiated between trade unions and employers, who are supposed to be substantially representative of their particular industry.

REAs are not unlike Employment Regulation Orders (EROs), which were permitted under part IV of the 1946 Act, until they were declared unconstitutional in 2011. EROs are agreements on remuneration and conditions of employment, which were set by Joint Labour Committees and they also applied to all employers and employees in the given sector. Both part III and part IV of the Act also provided that failure to comply with the agreed terms could give rise to a criminal offence punishable by a fine. In the John Grace Fried Chicken case (available here), Feeney J in the High Court decided that the provisions of part IV were repugnant to the Constitution. Thus, given the similarity of both regimes, yesterday’s decision was certainly not unexpected.

Background to the Case

As noted in the Supreme Court judgment, the proceedings were an amalgam of a series of cases all relating to the REA made on 24^th September 1990 in relation to the electrical trade. A number of disputes have centred on this particular agreement but the motivation behind this particular case was a proposal made to the Labour Court to vary the REA in order to increase the minimum rate of pay in the sector, along with the fact that a District Court prosecution had been commenced against Camlin Ltd (one of the original parties) for breach of that REA.  Those proceedings were then adjourned while a consultative case stated was prepared for the High Court. An application had been made to the Labour Court in the meantime seeking a cancellation of the REA but when an adjournment was requested in order to await the outcome of the High Court case, the Labour Court refused. An injunction was then sought in judicial review proceedings to restrain any further hearing by the Labour Court but while granted initially, O’Keefe J later lifted the injunction. The Labour Court then proceeded with the hearing and refused the initial application to vary the REA but also refused to cancel the REA. Again, judicial review was sought to challenge this decision. When the issue reached the High Court, the respondents sought clarification on whether the “multitude of applicants named” (over 500) were actually electrical contractors and whether they had been a party to the 1990 REA. The result of this was that the number of named applicants was reduced dramatically.

The Proceedings

In the High Court, the applicants sought to challenge the REA on grounds of invalidity ab initio and for unconstitutionality. They also challenged the decision of the Labour Court in refusing to cancel the REA. Many other issues arose in the High Court, such as alleged errors of law, objective bias and the question of reasonableness in relation to the Labour Court’s decision. Hedigan J dismissed the applicants’ claims but on the question of the constitutionality of the REA, he decided that he could not consider this due to excessive delay and suggested that the case by brought instead by plenary proceedings. This was then appealed to the Supreme Court, which had to consider:

1. Whether the appellants were entitled to raise the issue;
2. Whether the Supreme Court was entitled to determine the issue even though it had not been expressly determined in the High Court; and
3. Whether Part III of the 1946 Act was repugnant to Article 15.2.1 of the Constitution.

O’Donnell J, giving judgment for the Court, quickly decided the first two issues, specifically noting that the issue of constitutionality had been fully argued before the High Court and was not arising here for the first time so therefore the Supreme Court had jurisdiction to consider the point. It was also emphasised that:

 “To decline to hear and determine this issue would mean requiring the parties to incur substantial costs without the issues between the parties being resolved, and exposing the plaintiffs to the possibility of ongoing criminal prosecution and a choice between having to recommence proceedings or submitting themselves to a regime which they consider unconstitutional. Such an outcome would not be consistent with the administration of justice. Accordingly, albeit reluctantly, the court considers it necessary to address the central issue raised in this appeal.”

Article 15.2.1, which states that the Oireachtas is the only body that can make laws in the State, was first considered and it was noted that recent academic work has shown that this Article was originally more concerned with freedom from Westminster rather than with the separation of powers. However, the provision is also “an assertion of a core democratic principle” and is considered a further aspect of the separation of powers principle enshrined in Article 6. The cases of Pigs Marketing Board v Donnelly [1939] IR 413 and Cityview Press v AnCo [1980] I.R. 381 were then considered and the general principles determined in those cases were enunciated. The central point to be taken from those cases is well explained by Casey in his Constitutional Law in Ireland book: “The Oireachtas, it seems, may delegate a power to put flesh on the bones of an Act; but anything going beyond this will be constitutionally suspect.”

The power afforded under the 1946 Act was contrasted with s 21 of the Industrial Training Act 1967, which was under consideration in Cityview. In that case, the power involved was simply the power to fix the amount of a levy. Here, it was noted that the REA could make provision, not merely for remuneration, but for any matter which can be regulated by a contract of employment, ie wages, pensions, working hours, grievance procedures etc. It was pointed out that the Labour Court had no power of consultation or even a power to comment on a proposed Agreement. Furthermore, there was no guidance given to the Labour Court on the concept of representativity, there was no obligation on the Labour Court to consider the interests of those who would be bound by the agreement but who were not parties to it and while the agreement was binding on everyone in the sector, it could only be varied on the application of the original parties. Thus, it could not be said that the REA was simply putting flesh on the bones of the original statute. This was more than a mere “giving effect to principles and policies contained in the statute itself” – this effectively amounted to law making.

It was concluded that: “There can be little doubt therefore that Part III of the 1946 Act raises serious issues of compatibility with Article 15.2.1.” It was clear that law was being made by persons other than the Oireachtas:

“Instead there is a wholesale grant, indeed abdication, of lawmaking power to private persons unidentified and unidentifiable at the time of grant to make law in respect of a broad and important area of human activity and subject only to a limited power of veto by a subordinate body. In effect, Part III allows the parties to an employment agreement to make any law they wish in relation to employment so long as the Labour Court considers them to be substantially representative of workers and employees in the sector, and does not consider the agreement itself to be unduly restrictive of employment or make provision for unduly costly or inefficient methods of work or machinery, and otherwise complies with the formal requirements of s.27. No guidance or instruction is given to the Labour Court as to how the matters of representativity or restriction on employment or inefficiency or costly methods of work, are to be gauged. The process permitted by Part III cannot be said to be merely the filling in of gaps in a scheme already established by the Oireachtas: in truth the Oireachtas which enacted the 1946 Act could have no idea of even those areas which may be subject to regulation in an employment agreement sought to be registered under the Act, and no conception still less control of the possible range of regulation that might be made in respect of each such matter. Nor did the Oireachtas retain any capacity for review either by the Oireachtas or by a member of the Executive responsible to it, of the agreements actually made. Whatever may be thought of a scheme which permits parties to an agreement to clothe that agreement with certain legal consequences including the possibility of enforcement by criminal proceedings, once such an agreement purports to become binding on non-parties pursuant to s.30 of the Act, it passes unmistakably into the field of legislation which by Article 15 is the sole and exclusive preserve of the Oireachtas. The limited and essentially negative limitations imposed by s.27(3)(d) are plainly inadequate to bring the exercise of such power within constitutional limits.”

A declaration of invalidity was then granted.

The Fallout

The Minister for Jobs, Enterprise and Innovation, Richard Bruton released a statement yesterday stating that the Government had just received the judgment and intended to study it and take legal advice before commenting in detail. The statement also clarified that existing contractual rights of workers in sectors covered by REA are unaffected by the ruling. While the Technical, Electrical and Engineering Union has commented that the ruling erodes existing protection for workers, the NECI (National Electrical Contractors Ireland) has welcomed the decision, expressing an expectation that many jobs will now be secured because long term, viable pay and conditions can now be agreed. Others have agreed with this sentiment and have commented that the result will be good for competition. (See here). The long term effects of the decision remain to be seen but much of this complexity could have been avoided if the opportunity had been taken to radically overhaul the REA system in the Industrial Relations (Amendment) Act 2012, which was passed recently in order to reform the ERO system, which had been struck down in the John Grace Fried Chicken case.

 Dr Laura Cahillane

After considerable speculation, a number of delays, and a few leaks the draft Scheme of the Protection of Life during Pregnancy Bill 2013 was published on Wednesday 1^st May. The Taoiseach was keen to state that the draft legislative framework did not in any way extend the rights of women in Ireland. The sole purpose was to provide clarification for doctors and women on the availability of abortion in Ireland in accordance with the extremely narrow terms set out in Article 40.3.3 and the Supreme Court ruling in the X case. The Scheme of a Bill outlines the general shape of the proposed legislation and it will now be sent to the Joint Oireachtas Committee on Health and Children forfurther discussion and debate.Relevant persons will once more be invited to address the Joint Oireachtas Committee and further information on making a written submission can be obtained here. The intention is that the legislative process will be complete by the end of July 2013.

This post will focus on the process contained in Head 4of the draft Scheme to assess “the risk of loss of life from self-destruction.” The inclusion of suicide within the draft legislation has been the primary site of struggle in the recent debates on abortion in Ireland.Once it became apparent that, despite vigorous campaigning, the legislative framework would include a risk to life by suicide the focus of anti-choice campaigners shifted fromarguingthat suicide should be excluded to arguing that there should be a distinct process for assessing the risk to life from suicide and that this should be a more rigorous and onerous process. I have blogged here about the narratives of the untrustworthy, unreliable and hysterical woman underpinning this position. Making it more difficult to obtain an abortion where the risk to life is from suicide is portrayed by those who argue from an anti-choice perspective as the only effective barrier against “opening the floodgates” to “abortion on demand” in Ireland. Clearly these negative narratives have influenced the politicians as the Scheme of the Bill does include a separate process for assessing a risk to life through self-destruction. This distinguishes suicide as a case apart and one that is worthy of additional checks and balances to ensure that the system (and the medical professionals involved) are not manipulated by women who want abortions but do not meet the very strict criteria.

The Heads of the Bill propose that where the risk to the life of the woman is from self-destruction there should be three medical specialists involved in assessing whether there is a risk to her life which can only be averted by providing her with an abortion.Where the risk to life arises from a physical condition two medical specialists are sufficient to certify that the test has been satisfied. The three specialists to be involved are an obstetrician/gynaecologist and two consultant psychiatrists. Both consultant psychiatrists must be employed at a centre that is registered by the Mental Health Commission and one of them must be attached to an institution which has a public obstetric unit.The Scheme requires all three medical practitioners to unanimously certify “in good faith” that there is a real and substantial risk to the life of the woman by self-destruction that can only be averted by obtaining an abortion. At least one of the medical practitioners on the panel must consult with the woman’s GP “where practicable.” In forming their opinion the medical practitioners “should examine the woman.” There is no definition of examination provided in the draft scheme of the Bill. Head 4, subhead 4 states “[i]t will always be a matter for the patient to decide if she wishes to proceed with a termination following a decision that it is permissible under this Act.”

The inclusion of a separate process for assessing risk to life by self-destruction involving three medical practitioners is in line with Option 3 set out in the Report of the Expert Group. According to the explanatory notes under Head 4 this provision arises “from the recognised clinical challenges in accurately assessing suicidal intent, and the absence of objective clinical markers.” The Bill does not provide that the three doctors examine the woman together or that they examine her at the same location. Detail has not been provided in the draft legislation on how a referral to the panel might occur in a case where a woman is seeking an abortion and experiencing suicidal thoughts. The reason given is that clinical situations of this nature are bound to be unpredictable and complex and so flexibility should be allowed for standard medical practice to respond to the circumstances that arise.

The provisions contained in the draft Billappear relatively level-headed and balancedafter the leaks that emerged over the past few weeks. Suggestions that women would be required to be assessed by a panel of six medical practitioners were generally met with a sense of disbelief that this could be considered practical or appropriate. The proposals were described by Dr. Anthony McCarthy, President of the College of Psychiatrists in Ireland and one of only three perinatal psychiatrists practising in the country, as “abusive” and “some sort of sick joke.” However the leaking of these proposals served a purpose. As a result of those leaks there is now a considerable sense of relief that the legislation does not include anything so clearly excessive. Three doctors assessing the risk to life by self-destruction is now viewed as a compromise position, perhaps the best we could hope for, rather than being criticised for being unduly onerous and unnecessary.

In this context I think it is important to reiterate the objections to includingin the legislation a separate process in circumstances where the risk to the life of the woman is from suicide. These difficulties were recognised by the Expert Group in their Report when they suggested including a distinct process in relation to suicide.First, it is inherently discriminatory to have a different procedure in place for women who are experiencing mental health difficulties or suicidal ideation and wish to avail of a lawful abortion. Second, these “safeguards,” as they are termed, serve to reinforce the stigma surrounding mental health conditions in Ireland by treating it as a case apart. Finally this proposal places an extra burden on women by requiring three doctors to make the final decision in cases involving suicide. In general society accepts that one psychiatrist can assess suicidal ideation and this is a routine procedure for clinical psychiatrists.For further discussion on this issue see de Londras at humanrights.ie.

The requirement set out in the draft Scheme that the decision of the three doctors assessing the risk to life be unanimous may create practical difficulties. It allows for the possibility that one medical practitioner could veto the decision in circumstances where the other two doctors are willing to certify that the legal test has been satisfied. Given the recent statement issued on behalf of 113 consultant psychiatrists in Ireland to the effect that “legislation that includes a proposal that an abortion should form part of the treatment for suicidal ideation has no basis in the medical evidence available” it is clear that there is a difference of opinion within the psychiatric profession on this issue. There are, therefore, legitimate reasons for fearing that this situation will arise. The perception of suicidal women seeking an abortion as inherently untrustworthy will continue to impact on the operation of this process once it is introduced.

The inclusion of obstetricians in the panel to assess the risk to life from suicide is also worthy of comment. Obstetricians have no training or expertise in assessing suicidal ideation or risk to life by self-destruction and so it is unclear what they will add to the panel in making this decision. This was highlighted in the response of Doctors for Choice to the Heads of the Bill.The explanatory notes under Head 2 of the Scheme, which relate to assessing a risk to life, other than from self-destruction,note that in all situations, except emergency circumstances, one of the certifying medical practitioners will always be an obstetrician/gynaecologist. The note goes on to state “[t]his provision is deemed appropriate for two reasons. Firstly, in accordance with current clinical practice, an obstetrician/gynaecologist isobliged to care for the pregnant woman and the foetus and, therefore has a duty of care toboth patients and to have regard to protecting the right to life of the unborn and to bring thatto bear on the care of the woman and her unborn child. Secondly, a termination ofpregnancy will most likely be carried out by, or under the care of, anobstetrician/gynaecologist, and therefore their inclusion here should be central in accessingservices and ensuring patient safety.”The obstetrician therefore seems to be included in order to ensure that the position of the unborn is given sufficient consideration in any decision being made.

The suggestion in the Scheme that consultation take place between one of the panel members and the woman’s GP is sensible, but under this scheme the GP will have no direct input into the decision-making process. Arguably it would have made more sense, given the acknowledgement of the valuable contribution that can be made by the woman’s GP in the explanatory notes under Head 4, that the GP be included on the panel making the decision in relation to the risk to life. This is not a suggestion that a fourth doctor should be added to the panel. Rather, if the general position is that two doctors are required to assess the risk to the life of the woman then where that risk is of self-destruction a GP and a consultant psychiatrist would seem to be a reasonable combination. In the context of involuntary admission under the Mental Health Act 2001 the process requires a GP toprovide a recommendation for admission and the final admission order is made by a consultant psychiatrist. There should not be a more onerous process in place under the 2013 Bill in relation to suicide.

Finally, the draft legislation does not provide that the woman must be examined by all three medical practitioners at the same time. While this approach may have been adopted to avoid the process being described as similar to an inquisition, a term that was used in respect of the proposals for six medical practitioners to assess the woman, it may have other negative consequences. Allowing for the possibility that a woman in distress, who states that she is suicidal,might be required to attend at three different appointments to meet with three different medical practitioners and to recount her story three times is questionable. It has the potential to draw out the process and it gives the appearance of a series of obstacles being placed in the way of the woman. It is likely that the repeated recounting of her story by the woman may operate to compound her distress. There is also the risk that any slight variations in the story told by the woman over multiple examinations could be seen as evidence that she is not being entirely truthful. It may be the case that this issue will be addressed in regulations or guidelines, but the provisions in the draft Scheme of the Bill are troubling.

The proposed legislation will provide a degree of clarity to medical practitioners and women in Ireland. However, it will affect only a tiny proportion of women. Those women who have been the victim of rape or incest, those who are carrying a foetus with a fatal abnormality incompatible with life outside the womb, those women whose health will be seriously affected by carrying a pregnancy to term, and those women who wish to obtain an abortion for socio-economic reasons will continue to travel outside of the jurisdiction. Doctors for Choice note that it is unclear whether the Bill would provide an “effective and accessible” procedure for someone in the position of Savita Halappanavar. The Irish state will continue to ignore the difficult circumstances ofmany women. In order for the debate on abortion in Ireland to move forward and begin to engage with issues of autonomy, choice and reproductive rights it is necessary to repeal the 8^th Amendment to the Constitution.

No Supreme Court ever wants to be in the position of prescribing a treatment plan for a person suffering from a life-threatening medical condition.

In the X case, in 1992, however, this is exactly the situation the Supreme Court found itself in. The case dealt with the most distressing of factual circumstances and the Court, by a majority of four of five judges, ruled that Article 40.3.3 of the Constitution permitted abortion in the case of a “real and substantial risk to the life of the mother by self-destruction”.

That decision was made in the absence of any medical or psychiatric evidence but it was very clearly premised both on the assumption that abortion was an effective treatment for such a risk of self-destruction and on the assumption that there was no other way of avoiding that risk. Indeed, since the majority judges did not – even in passing – suggest that the woman in question be given any other form of psychiatric assistance, it appears that they believed that abortion would be a complete treatment for her condition.

In January, the Joint Oireachtas Committee on Health and Children did hear medical and psychiatric evidence from leading experts. Their testimony demonstrated conclusively that the assumption that abortion is a treatment for suicidal ideation is simply mistaken; that the best way to treat women with serious mental illness is in fact to treat the mental illness. In answer to a direct question asking whether perinatal psychiatrists had ever come across a case where termination of pregnancy was a treatment for suicidality, Dr John Sheehan spoke for all three of our perinatal psychiatrists when he said “we have not seen one clinical situation in which this is the case”.

On 5^th April, the Irish Medical Organisation voted to reject the Supreme Court’s treatment plan for suicidal ideation when it voted to reject “regulation in relation to the provision of abortion services where there is a ‘real and substantial risk’ to the life of the mother” including a risk created by mental illness.

In reality, nobody can be all that surprised that judges should err in devising a treatment plan for a patient with mental illness in the absence of expert testimony. Judges are highly trained and have years of professional experience, but their expertise does not include perinatal psychiatric specialism.

The question now is whether to recognise that their treatment plan – while devised with the best of intentions – was based on inadequate medical knowledge and a departure from best medical practice or to legislate for the mistaken treatment plan in spite of best medical practice.

Our Constitution gives specific powers to three branches of government. Each – the legislature, the executive, and the judiciary – has its own particular role to play. None should encroach on the function of another, and each should operate as a ‘check’ on the power of the others. This simple architecture of checks and balances operates to preserve democracy by preventing any one power from becoming so powerful that it becomes tyrannical. Moreover, but no less importantly, it is also a corrective mechanism.

The Constitution recognises that mistakes can be made, even when all those who hold power wield that power with the best of intentions. When the mistakes of one branch can be exposed and corrected by another branch of government this is a sign that the system is working; that tyranny is being avoided.

When the legislature or executive makes a mistake interpreting the Constitution, there are procedures by which the judges can correct those mistakes with relative ease and efficiency. They do not entail a presumption that the Oireachtas or the Government acted in bad faith; to the contrary, the courts traditionally assume that the Oireachtas and the Government has acted with the best of intentions, even when they find error.

When judges make mistakes, however, they are the most difficult mistakes to correct because the interpretation of law given by the judges is authoritative, even when mistaken, unless and until the judges overturn their own decision.

Yet, in an extraordinary example of participative democracy, the legislative branch, by means of the January Oireachtas Hearings, has managed to identify the mistake in the treatment plan proposed by the Supreme Court in 1992.

The Oireachtas now has in its own hands compelling testimony that the Supreme Court did not have which effectively exposes the judgment in the X case as one where a mistaken assumption of fact was improperly used as a reason to deny to one guaranteed a right to life under the Constitution the vindication of that right.

To the extent that that mistake has been brought to light, the system has worked.

Does the Government have a mandate to ignore this contribution of the Oireachtas to the functioning of our democracy? Does the Government have a mandate to continue to consider that abortion is a treatment for mental illness even though that is a defiance of science?

Do TDs and Senators have a mandate to vote in favour of legislation on the grounds of the X case when they hold the knowledge that such legislation would be in contradiction of the truth that their own hearings uncovered, as well as contrary to best medical practice?

If the Oireachtas produced legislation that was consistent with best medical practice omitting suicide as grounds for abortion wouldn’t the current Supreme Court find it difficult not to defer to that decision on the grounds that the Oireachtas is in possession of expert knowledge that the Supreme Court in 1992 was denied access to?

The Constitution sets up a system of checks and balances, but it is not an automated system. It relies on individuals who have positions of great privilege and responsibility to honestly seek the solution that promotes the common good of all persons.

Dr. Maria Cahill is a Lecturer in Constitutional Law in University College Cork

Last summer, when the Government was outlining the shape of its plans for a Constitutional Convention, I was a very frustrated citizen and constitutional lawyer. I felt that the plans sold the country short on promises of political reform made during the last election, and I vented my spleen in the Irish Times (June 7, 2012). In the interests of making a point I fervently believed in, I used some rather strident language, calling the Convention a “charade” and a “joke”.

I remain of the opinion that the terms of reference of the Convention are far too narrow. I also remain sceptical about how many of its recommendations will actually be put to a referendum by the Government. However, on a number of other points relating to the composition and organisation of the Convention, I have changed my mind completely.

Last Saturday, as part of the Convention’s deliberations on same-sex marriage, I was invited to participate in the afternoon panel discussion, and I had the opportunity of sitting in for the whole day to observe. There was so much to be impressed by.

Fundamentally, the Convention sessions are extremely well designed and executed. Members are provided with accessible expert information to bring them up to speed on the issue being debated. While some critics have questioned the impartiality of the expert evidence presented last Saturday, my experience did not support these criticisms; indeed, the experts in question were at pains to avoid being seen to take a stance either way and to present unadorned legal and empirical information. The reason why no studies were presented suggesting that outcomes for children raised by same-sex couples are worse than outcomes for children raised by married parents is that there are none to speak of. Plenty of studies indicate worse outcomes for children raised by single parents; but the Convention was not debating the constitutional rights of single parents, and so these studies were irrelevant to its deliberations.

Following the impartial expert evidence, the members are presented with partisan arguments by representatives of each side of the debate, with strictly equal time allotted to each side. Roundtable discussions allow members to digest and discuss the information, and to put questions to the presenters. Facilitators ensure that everyone gets to contribute, and notetakers feedback the deliberations of each table to a plenary discussion.

The elected representatives, who account for 33 members, have belied fears that they would dominate proceedings. While Senator Ronán Mullen and one citizen member have claimed otherwise, the 20 or so members I spoke to unanimously said that the politicians are eager to ensure that the 66 ordinary citizen members get an equal say. From my vantage point at the back of the room, it was hard to tell who was a professional politician and who was not. The 100^th member, independent chair Tom Arnold, ran proceedings efficiently and even-handedly, ably assisted by Art O’Leary, the Convention secretariat and the advisory group.

Most of all, the commitment and enthusiasm of the citizen members (who are giving up their free time and travelling regularly to Dublin) was a sight to behold.In speaking with them, I was struck by their open-minded approach to the arguments being presented, and their eagerness to make a carefully considered and informed decision. Most of them had limited (if any) knowledge of the Constitution at the start of the process; but on Saturday, they spent eight hours intensely engaging with the subject matter before them (and will do this for 10 weekends). The most hardened cynics have expressed admiration for the way the proceedings transpired.

Same-sex marriage is a controversial issue on which many people have sincerely held convictions that directly oppose the convictions of others. Presenters and members bared their souls on a number of occasions, whether to argue for the recognition of same-sex relationshipsor for the preservation of a traditional view of marriage. And yet the tone of debate was never less than respectful, even on those few occasions that emotions began to run high.

In a country where the level of political debate often leaves a lot to be desired, the Convention gives a glimpse of what could be achieved if partisan political point-scoring is put to one side and people focus on the issues. It shows that our political classes have more substance than they sometimes give the appearance of, and also how ordinary citizens have so much to contribute to even complicated and specialised decisions, once they have been provided with the right kind of information and are willing to engage with it.

The potential that was commented on by so many last Saturday can be realised, but only on a number of conditions. First, the narrow terms of reference need to be addressed; the perfect opportunity will come at the end of the year, when the Convention will discuss what additional issues it might consider. The Government should approach this with an open mind, and the project should continue for a second year. If this is too much to ask of the citizen members currently involved, a re-constituted Convention could be convened with new members.

Second, the Government needs to show a genuine willingness to follow through on the recommendations made by the Convention and put the relevant questions to a referendum so that the people can decide. Since the proposal would come from the Convention rather than from the Government, the format should be seen as an opportunity to push past the party political calculations that have traditionally been determinative of decisions on whether (and when) to hold a referendum on a given topic.

The Constitutional Convention was designed in a half-hearted way by the Government last year, but it has been taken on wholeheartedly by the politicians and citizens who are participating in it. Many of us who criticised it so strongly a year ago can now see a potential that we did not originally appreciate. It is up to the Government whether it wants to see this potential fulfilled.

*Videos of last weekend’s sessions can be viewed at www.youtube.com/user/ConstitutionIe.

Dr Conor O’Mahony

Controversy erupted this week when Mr Justice Peter Kelly was reported to have told a group of business leaders that judicial independence was being demolished “brick by brick” by the Government, apparently mentioning the Government’s handling of judges’ pay and pensions and the proposed reforms to the court structure. Minister for Justice, Alan Shatter then dismissed the comments, denying that the Government was interfering with the independence of the judiciary and later suggesting that perhaps Judge Kelly did not intend to convey this meaning by his comments. He also commented: “At a time when we are still fighting to restore our economic sovereignty and bring about sustainable economic recovery, we all have a duty when speaking to ensure that what we say has no unintended consequences and does not undermine international business confidence in the State.”

However, we were left in no doubt as to the intentions of Judge Kelly’s comments when the Association of Judges of Ireland (a representative body established in November 2011 in the context of the judicial pay referendum), of which Justice Peter Kelly is President, issued a statement in support of the comments. The statement claimed that “all structures, both formal and informal, which existed for communication between these two branches of government have ceased.” It pointed out that judges had not been consulted in relation to pension arrangements, the personal insolvency proposal or any of the current reform proposals, noting for example, that the abolition of the Seanad would mean that judges could be removed from office by a simple a majority resolution in the Dáil while at present a resolution of both Houses is required.

Justice Adrian Hardiman, of the Supreme Court, also supported the Association and Judge Kelly, noting that the latter speaks for the judges and is in a position to do so. Micheál Martin then decided to weigh in, commenting the country was on the verge of a full-scale constitutional crisis: “This evening we are witnessing an unprecedented breakdown in the relationship between the Irish judiciary and the Irish Government.” While the comments were perhaps made in the usual spirit of political hyperbole, we have to question whether the independence of the judiciary has truly been threatened.

The Development of the Concept

The independence of the judiciary is a fundamental principle in our Constitution. It was born out of the power struggle between Parliament and Crown in the UK. Before the 1600’s, judges held their offices at the pleasure of the monarch and so could be easily dismissed at the whim of a monarch who did not like a particular decision. Parliament later legislated to limit Royal interference in the judiciary, not particularly to provide for judicial independence, but rather, as part of their actions to curb Royal power. Thus security of tenure for judges was established and the concept of an independent judiciary was developed.

Our Constitution protects the idea, providing in Article 35.2 that “All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law”. That Article provides further protection in that (superior court) judges cannot be removed unless a joint resolution of the Dáil and the Seanad is passed and Article 35.5 had prevented any reduction in a judge’s salary, before this was amended in the November 2011 referendum.

The independence of the judiciary is also linked to the Separation of Powers doctrine, whereby each of the three organs of government, the legislature, executive, and judiciary are all supposed to be independent in the exercise of their respective functions and should constitute a check on the power of the others. Of course, Ireland’s model is not a true separation of powers, in that it cannot be said that our parliament and government are independent of each other. The doctrine has always been strongest in its recognition of the independence of the judiciary.

What Does Independence of the Judiciary Involve?

The traditional reason for the concept was to prevent interference in the administration of justice; to ensure that judges could not be forced or induced to make particular decisions. But what does the concept encompass today? Chief Justice Denham, during a speech to the Australian Institute of Judicial Administration in July 2000, addressed this question. She pointed out that:

“[I]t is the people who are sovereign and guardians of the Constitution.  Judicial independence exists for the benefit of the people … The concept of judicial independence has two aspects.  On the one hand is the independence of the third branch of government – the judiciary. I shall call this institutional independence. On the other hand each judge is independent.  I shall call this individual independence. … The concept of the independence of the judge exists so that he or she may fulfil his or her duties freely.  The concept exists to guard the impartiality of the judge, to protect the judge from interference e.g. from the executive by way of removal or reduction of salary.  Both the institutional judiciary and the individual judiciary are independent. …The independence of the judiciary is for the benefit of the community, not the judges.  It is a duty not a privilege for a judge.”

Thus, it is clear that the concept of judicial independence is primarily concerned with ensuring a fair and impartial administration of justice. As Justice Denham emphasised, the independence of the judiciary is a right of the people and of a person and a duty of the judiciary and a judge. Denham also aptly commented: “It is fundamental to democracy and the rule of law that the judiciary be strong, to withstand pressure from any quarter.  Yet the judiciary should be of their times and take account of the changing society within which judges hold office, while retaining the core principle of independence.”

Has this Independence been threatened?

Taking these comments into consideration, it might be a stretch to argue that a failure to consult the judiciary on proposed court reforms etc would constitute an interference with the independence of the judiciary. Master of the High Court, Edmund Honohan has expressed a similar view today, pointing out that there is no obligation on the minister to consult with the judges. RTE reports Honohan as commenting: “There’s no question at all that the judicial independence and integrity is under challenge in any way … Now all of this brouhaha seems to be about some sort of sense of entitlement that judges are entitled to be consulted when the minister or the Government proposes new legislation of one sort or another. Sorry, but that’s just not correct.”

Whether or not it is felt that the actions of the Minister have constituted a threat to the independence of judges, there are potential serious consequences to this controversy in that it could adversly affect confidence in the adminsitration of justice. A public disagreement between two organs of government is never beneficial to public confidence particularly when one has been accused of interfering with the other. Thus it is of the utmost importance that, rather than fuelling the fire with further comments, both sides attempt to resolve the situation as soon as possible.

An Appropriate Resolution?

One of the complaints from the judges was that a proposal to establish an independent commission for judges was dismissed by the Government. For a number of years now, successive governments have promised legislation to establish a judicial council, comprising members of the judiciary and lay persons, which would have the power to discipline and appoint judges and could be a means of communication with the executive. Mr Justice Frank Clark has recently set out “tentative ideas” on the possible establishment of a similar type of body. Perhaps the most appropriate way forward, in the context of this controversy and in light of the proposed reforms, would be to take action finally to establish such a body.

Dr Laura Cahillane

We are delighted to welcome this guest post on the issue of abortion from Dr Bénédicte Sage-Fuller, Faculty of Law, University College Cork and Dr Grégor Puppinck, European Centre for Law and Justice, Strasbourg, France.

Anyone who thinks that opening the door to restricted abortion can be kept to narrow and well intended cases should take a look at the French example. Legalised in 1975, abortion was at the time all about the dignity of women when facing a distressing situation. It was meant to be good for them and for society. Women needed to change the male-dominated country that France had been for centuries. After all, the right to vote was only fully recognised to women in 1944. France had never – and still has not ever –had a woman as head of State.  Abortion was meant to help recognising women as full citizens. It was part of their full emancipation.

This is still very much the attitude. The belief that abortion is necessary for women is even legally defended. It is no longer a crime to incite someone to have an abortion, but it is a criminal act to protest or even talk publicly against abortion. On Monday 21^st January 2013, a pro-life activist was before the courts. His protest was entirely non-violent, and yet he was charged with “having exercised psychological and moral pressure on women and trying to dissuade them from having an abortion”. He prayed outside an abortion hospital, and later walked inside and gave baby-size woollen boots to women considering having an abortion. He faces heavy fines and imprisonment. On the other hand, anyone who puts psychological or moral pressure on a young teenager or woman to have an abortion will not be prosecuted.

Of course in 1975 the legislation included strong safeguards, in order to care for and protect women making this choice.  But 38 years on, the procedure is entirely liberalised. The safeguards have been reduced to virtually nothing. The law was changed to allow abortion up to 12 weeks, rather than the initial 10 weeks. The right for doctors and nurses to refuse to carry out an abortion is restricted.  Public and subsidised private hospitals are not allowed to refuse to provide the procedure. Young underage girls no longer need to tell their parents, let alone obtain their consent. Compulsory pre-abortion counseling was made optional for adult women, with the result that by 2009 the vast majority of private abortion clinics and half of the public hospitals do not offer the service to women.

There is widespread recourse to medical rather than surgical abortion, where women take abortive pills in front of a nurse or doctor, and then go home. Having expulsed their foetuses alone in their bathroom, they must bring them back to the clinics so that a nurse can verify that the abortion is complete. No psychological support is offered during or after this harrowing time, which takes between 3 to 5 days. Women are alone and without any psychological support and, in the case of teenage girls, isolated even from their parents.

The number of abortions has risen to about 600 per day. There were 220,000 performed in 2012.  One in four pregnancies is terminated. The biggest increase has been among underage teenage girls (+25% between 2002 and 2006). Yet, the French government makes no apologies. On the contrary, it decided in October 2012 to fully refund the procedure, with taxpayers’ money, deploring that French women do not have equal access to abortion services.

The 1975 law recognised the protection of human life for all, and then went on to make an exception for foetuses under ten weeks. This was the price to pay: that the law clearly admits that abortion is an exception to the right to life of all human beings. If the embryo or foetus was legally recognised as a person by virtue of its very existence, it would, as an inescapable logical consequence, enjoy all of the rights that all other human persons in France enjoy, including the right to life. To the contrary, the legal denial of the personality of the embryo or foetus carries with it its own logical consequences, including the inevitable liberalisation of abortion laws, and the increasing absurdity of the law.

This absurdity can be seen in the following examples. In the infamous wrongful life decision of Perruche in 2001, the highest court in France held that a baby born with serious abnormalities was entitled to sue his mother’s doctor and to receive compensation for the damage of being alive, because the doctor failed to detect the condition in the womb. In other words, a child was allowed to sue for the “wrongful prejudice” of having been born. A law was passed in 2002 to reverse this decision in respect of the person who is born, but leaves the possibility to parents to sue for their personal damage of not having been told their child would suffer a disability. It is considered that they “missed the chance” to make an informed decision about aborting their baby. On the other hand, the same court ruled that somebody cannot be criminally prosecuted for causing the death of a viable unborn child in a car accident as a consequence of their reckless behaviour, unless the child lived for some time outside the womb after the accident. Failing to provide medical information to parents that would convince them to terminate the life their child is punished by the law, but recklessly causing the death of a viable unborn child is not. The legal system and the courts decide subjectively who has the right to life and who does not. This is a direct consequence of admitting an exception to the right to life for all in the 1975 abortion law.

Once abortion is accepted in law, no matter how narrow or well intended the reasons are, there is no going back. It becomes part of society. It affects deeply every woman, man and child, whether they have been directly involved in an abortion or not. Irish people, TDs, Senators and Ministers need to take a good look at the French example before they decide that abortion is really what they want for their country. Unlike French people 38 years ago, they have the benefit of the experience of other countries, and they can avoid making the same mistake.

Accountability is lost in the axing of the Mobility Allowance scheme

The decision by the Department of Health to close two disability schemes – the Mobility Allowance andMotorised Transport Grant – following sustained criticism of their operation by the Ombudsman raises some serious questions about the effective operation of accountability mechanisms concerning government departments; not least whether Government Departments are both willing and able to respond to structural criticisms.

The Department of Health closed the two mobility schemes on the 26^th February 2013 to new applicants, and current recipients (4700: mobility allowance and 300: motorised transport grant) will lose their benefits on the 26^th June 2013. No indication was given as to what would replace the schemes, not least because the Department has been unable to devise a lawful and effective mechanism within their apportioned budget of €10.6 million. In announcing the end of the schemes, Minister Kathleen Lynch T.D. stated that the Government had “agonised” over its decision, had found all alternatives to be illegal and thus had no choice but to end the schemes. The impression created is of a department striving to find a solution but being given no space by the law to fix the problem. However, the detailsof this saga reveal asomewhat different picture.

History of the illegality findings

The first formal finding of illegality in relation to these schemes came in 2011 with the launch of the Ombudsman Office report “Too Old to Be Equal”which found that Mobility Allowance scheme to be in breach of the Equal Status Act 2000 because the benefit was only available to those under 66 years old. This age restriction was not absolute, however, as those in receipt of Mobility Allowance before reaching the age of 66 continued to receive their allowance payments after that age. The report found that the Department of Health was aware of the illegality of the upper age limit, but that it had shown no “sense of urgency” to make the scheme compatible eleven years after the Equal Status Act had been passed. This despite having received similar warnings from the Equality Authority when it published a case report in 2008 relating to the Motorised Transport Grant following which the Department removed the upper age limit.

The Ombudsmanrecommended that the Department review the scheme and revise it to ensure compliance with equality legislation and that this be completed within a 6 month period. There was no recommendation as to how the scheme should be amended, but an emphasis that it should be compliant with the law.

In April 2011 the Department accepted the recommendation and agreed to carry out the review but then took no action. As a result the Ombudsman’s2011 Annual Reportstrongly condemned the Department’s failure:

“In my original Investigation Report I observed that the apparent inability of the department to deal with issues, such as the inclusion of an illegal condition in the Mobility Allowance Scheme, leaves it open ‘to the perception that it is unconcerned with the fact that it is operating a scheme which is at odds both with the law of the land and with human rights law more generally.’ More than a year later, the Department had not shown that this perception is unwarranted.”

One might assume that such strong criticism in a report from the Ombudsman would prompt a reaction, yet the Department continued to prevaricate with the result that a follow-up reportwas published in 2012 under section 6(5) of theOmbudsman Act 1980.

At this point the department statedthat it was in fact unable to act on the advice because it “would create liabilities the State could not afford”. The Office of the Ombudsman rejected that approach criticizing the

“attempt of the Department to represent its position as a common sense response to an unfortunate situation in which, in order to target limited resources effectively, it is necessary to infringe on the law. There are options to be considered on how best to use scarce resources. Breaking the law is not one of those options.”

The continuing violation of the law, and resultant complaints to both the Ombudsman and the Equality Tribunal, were in fact creatingliabilities to individuals who had been discriminated against by the illegal system. We do not have a figure as to how much the department paid in settling these liabilities but the “Too Old to Be Equal” report prompted a payment of €6000 to the family of the deceased original complainant in 2011.

The Department of Health’s response and accountability principles

The position of the Department of Health, in relation to this investigation,clearly conflicts withfundamentalaccountability principles.

1. Integrity and trust - the public should be able to trust the state to act with integrity in areas of complexity particularly against a background of scarce resources. Unfortunately, the Department of Health has consistently failed to engender trust in its actions in this area. For example, representatives of the Department, including Minister of Health Reilly, gave evidence before the Joint Oireachtas Committee on Public Service, Oversight and Petitions on February 6^th 2013. The hearing considered the operation of the schemes and discussed options, but at no point during the hearing did Department ofHealth officials indicate that the schemes were likely to be abandoned within three weeks of the hearing. The Minister announced the appointment of an external expert to review the transport needs of people with disabilities and Minister Lynch commented that “The comprehensive review required will be considered and if that can be done in a shorter period than six months we will be very happy. We need to emphasise again than this should not be an exercise that will drive fear into people.” That review has now developed into a “project group”designed to examine the schemes and recommend a solution, howeverthe likelihood of it agreeing on, andthen implementing such a solution within four months is improbable given the failure of the department to find a workable solution since 2011. It is in fact unclear as to whether the Department thinks that a solution is possible, if it is then one must question why they scrapped the schemes in advance of announcing its replacement. A more cynical view might be that they have concluded there is no acceptable solution, whether on cost or legal grounds, and that the project group is a way of legitimising the final termination of mobility supports.
2. Honesty and transparency – State agencies should act in an open and honest way; if there was a danger that the Mobility Allowance Scheme was to be abolished or altered people affected should have been given the necessary information. However, as noted above, there was no warning. The statement by Minister Lynch in the Dáil that this “has not come as a bolt out of the blue for anyone” is therefore somewhat disingenuous– it was certainly known that something had to be done, but not that the Department would leave vulnerable people unsupported. Indeed, the Disability Federation of Ireland stated on RTÉs Morning Irelandthe morning after the announcement that the closure of the schemes had come “out of the blue” and that there had been no consultation with disability groups. The failure to consult and the high handed nature of the decision to cancel the schemes therefore casts doubt on the limited guarantees made as to future support in this area. The department’sstatementthat the decision was not a cut and that €10.6 million remained “committed to meeting the transport needs of relevant people” is a hollow commitment when it is placed alongside the Minister Lynch’s reassurance thata “full Government approach” examing how to introduce a universally accessible transport system was being carried out. That suggests a shift away from disability benefits moving the money to transport.
3. Fundamental human rights norms – the apparent willingness of the Department of Health to override the fundamental principle of equality because of cost concerns appears to indicate, as the Ombudsman stated in her follow up report, that “it has a very weak sense of the importance of supporting human rights principles and, indeed, a very weak sense of the rule of law and of its obligation to act in accordance with the law.”The problem is that equality here, according to the department, would cost the state somewhere between €170million and €300 million. The cost of cutting the scheme completely and making everyone equally immobile is attractive on paper, though the knock on costs of the loss of access to jobs, family and community for those affected is unquantifiable in financial terms.

Accountability failures

The accountability context of this decision of Department of Health is extremely illuminating as regards the government’s overall attitude to the rule of law and the need to respect our mechanisms of accountability. In October 2012, the Government announced the expansion of the jurisdiction of the Ombudsman and finally steered through the long awaited Ombudsman (Amendment) Act 2012. This process involved a clear political endorsement of the Ombudsman as a key champion of the people. Yet at the same time, a major State Department was failing in its responsibility to follow her recommendations and bring an important disability scheme into line with the law. The Ombudsman used that moment, in an example of “the mobilisation of shame” to launch the follow-up report on “Too Old to be Equal”. However, it appears that the impact of both that report and the later hearings before the Joint Oireachtas Committee in February 2013 was to prompt the Department into what appears to be an impetuous decision of cancellation rather than to encourage a thoughtful response that would bring it in line with the rule of law and wider accountability and human rights principles.

The behaviour of the department over the last three years has therefore embodied the attitudes of resistance and unresponsiveness which undermine Government statements claiming that the Office of the Ombudsman, and an expansion of its remit, is essential for “ensuring that fair treatment is always provided” to the public and to achieving improved accountability in public bodies. There is clearly a tension in government between the acceptance of the need for an institution such as the Ombudsman and the rejection of its findings on the ground in situations, such as the mobility allowance, where those findings challengeestablished administrative practice or make life inconvenient for government.

For its part, the Office of the Ombudsman has maintained the moral high ground in this dispute. It might be criticised for failing to offer, from the start, any solutions to the breach of equality, though it would argue that it is not in a position to provide policy answers. By not engaging with the detail in the aftermath of its report, but focusing on the accountability framework it has maintained a consistently detached position from the rather murky political fray. Yet at the same time, has become a thorn in the side of the Department of Health, to such an extent that there is a clear problem in the relationship between the two as identified by the Joint Oireachtas Committee earlier this year.

As to solutions, it may be that the most obvious is one that maintains the discrimination, something the Ombudsman would have been reluctant to recommend. As Mel Cousins has argued, placing of the scheme on a statutory footing might have been sufficient to avoid a finding of illegality. And this point is important – the mobility allowance scheme, like so much of our government, operated with no statutory foundation and on the basis of unpublished guidelines. Whilst this was perhaps once normal, it is no longer acceptable to ignore accepted principles ofaccountability and the rule of law by allowing such administrative mechanisms to operate without transparency, openness and apparent fairness.

Dr Fiona Donson

Last week the Government announced its intention to hold another referendum in the autumn. The issues to be considered include changes in our patent law, in order to allow for the ratification of a new European-wide patent system; reform of the courts system, in order to establish a new court of appeal and a family court system; and abolition of the Seanad. It is this final issue which is expected to cause the most controversy. As fulfilment of an election promise, the question of abolition of an institution, which in recent years has come to be seen as inefficient, is to be brought before the people. In advance of any serious debate on the matter, current trends would suggest that such an amendment would be passed.

However, it is strange that since the Government has seen fit to establish a Constitution Convention to consider issues of constitutional reform, this major issue has been excluded from the remit of the body. Rather than allow the Convention to consider the issue and make proposals, the decision has been taken to bring the matter directly to a referendum. Matters are further complicated by the recent movement calling for reform of the Seanad rather than abolition. In September last year, a group comprising Senator Feargal Quinn, Michael McDowell, Joe O’Toole, Noel Whelan and Senator Katherine Zappone published a consultation paper entitled “Radical Seanad Reform through Legislative Change”. The proposal suggests a number of reforms which could be made without recourse to a constitution referendum. Also, last week the Seanad debated (but did not vote on) Senator John Crown’s Seanad Electoral Reform Bill, which proposes dramatic reforms to the electoral process of the Seanad. While it is likely such moves will be defeated, it raises the question of whether it is fair to propose Seanad abolition as a yes or no question in a referendum. Perhaps a preferendum would be a fairer method.

A preferendum is different from a referendum in that, rather than being given the choice to either support or oppose an amendment, the voter can choose between three (or more) possibilities. The possibility of using the preferendum in Ireland was examined by the Constitution Review Group, which produced its report in 1996. As part of the report Gerard Hogan used the 12^th amendment of the Constitution (which was held in the aftermath of the X case) in order to demonstrate how the preferendum would work. In that referendum, it was proposed to amend the Constitution by inserting the current Article 40.3.3, which provides that abortion is not permitted unless it is necessary to save the life of the mother. While the amendment was passed, Hogan points out that “there was a substantial body of opinion which was unhappy with the proposal on the basis that it did not offer the electorate a ‘real’ choice…” Hogan then lists the possibilities which could have been proposed:

1. Inserting a complete and absolute ban on abortion into the Constitution
2. Modifying the decision in the X case by allowing abortion where the life of the mother was at risk in all cases other than suicide
3. Accepting the decision in the X case
4. Liberalising the law even further to admit of abortion in cases where the life or health of the mother was substantially at risk by continuation of the pregnancy

Hogan then explains how a voter could give their preferences in numerical form and the result could be decided in the same manner as the single transferrable vote, by elimination of the option with the least support with the consequent transfer of votes to the remaining proposals. Of course, it would also be possible, particularly if only three choices were given, to allow voters to make only one choice and decide the issue on the basis of the highest number of votes.

The report notes that while the preferendum would give the voter a wide range of choice, which currently is not possible, it could also cause problems in that voters might be confused by the range of voting options and also that it is not clear who would formulate the range of proposals or how they would be formulated. Ultimately, the report concluded that the referendum system has worked well and that (in 1996) there was no pressing need for change. However, it was advised that the issue be kept under review, “especially having regard to the potentially complex nature of future proposals to amend the Constitution”.

It is clear that, if such a method had been used in the past, we might have seen vastly different results to those which were actually achieved. Such a system might even have achieved a different result in the recent referendum on Oireachtas Inquiries. It seems that the question of Seanad abolition would be an ideal issue for the preferendum. It is clear that the public is unhappy with the current institution but once the debate begins and the possible consequences of abolition are made clear it may be questioned whether abolition is such a good idea. Thus, given the choice of retaining it, abolishing it or reforming it, it is quite possible that the public would prefer the latter.

Of course, the only problem with this, particularly with implementing the model explained by Hogan above using the single transferable vote system, is that it would not come within the definition of a referendum currently provided in the Constitution and so an amendment would be necessary in order to allow for the preferendum. Perhaps we should have a referendum on the preferendum.

Dr Laura Cahillane

Few would really have expected the High Court to depart from this reasoning. Indeed, as a lower court, it would have had to provide compelling reasons for doing so.  Nonetheless, one such reason could have been that that this passage was obiter dictum and not binding, since the question of assisted suicide had not arisen in Re a Ward of Court. This might explain why the High Court in Fleming saw fit not to cite the above passage from Re a Ward of Court at all and to engage in an entirely fresh analysis of the constitutional issues raised.

Having accepted that the ban on assisted suicide engaged and restricted the right to personal autonomy, the High Court addressed the legitimacy of this restriction entirely through the lens of proportionality analysis, applying the classic statement of the proportionality test in Ireland from the Heaney case. Put simply, the logic of the decision is that the State clearly has a compelling interest in the protection of human life. The Court found that the evidence presented in the case showed that it is near impossible to legalise assisted suicide without opening up the possibility of abuse of the law, whether through coercion, complacency, or through vulnerable people disguising their true wishes due to a sense of being a burden on their families. Consequently, the Court ruled that a blanket ban with no exceptions met the requirement of being the least restrictive means necessary to meet the State’s objectives.

We have just celebrated the 90th anniversary of the first Constitution of the modern Irish State. Dr Laura Cahillane gives some brief thoughts on that document …

These days when the Constitution is mentioned, it is usually with regard to reform or to changes which must be made. Our current Constitution is 75 years old this year and it has been recognised that many aspects of it are now outdated and in need of modernisation. However, many provisions in the current document are actually much older than that, in fact, much of the 1937 Constitution is made up of provisions from the first Constitution of the modern Irish State – the 1922 Constitution, making those provisions 90 years old.

The 1922 Constitution is not something people generally know very much about and much of what has been written on the topic has been quite negative. This is because of the controversial provisions which were inserted at the insistence of the British, provisions like the oath of faithfulness to the King and the Appeal to the Privy Council. However, those provisions were mostly meaningless in reality and by concentrating on those trivial provisions, the remarkable aspects of the 1922 Constitution have been overlooked.

When the Constitution Committee of 1922 sat down to draft a Constitution for the embryonic Irish State, they had a blank slate with which to work. They decided to make a break with the past and to design a uniquely Irish document. They decided that the ultimate power in the State should rest with the people – this idea became the cornerstone of the document. In order to further that aim, popular sovereignty was proclaimed and ideas such as direct democracy were introduced; the people had the power to hold referendums on legislation and to propose legislation and constitutional amendments themselves. Another aspect to this idea of ensuring that all power would lie with the people, was to suppress party-politics so that the Parliament would truly be responsible to the people and not to political parties. Thus experiments such as the external ministers, functional and vocational councils, PR-STV and the original Seanad as a house of independent thinkers, were all included.

However, due to the Civil War legacy in existence in Ireland at the time, the focus on keeping the peace and balancing the books and the strengthening of party politics with the emergence of Fianna Fáil in 1932, many of these innovative provisions were removed from the Constitution and some were never even used. Thus, the Constitution never had a chance to function as originally intended and the original spirit of the document was forgotten.  Despite this however,  the 1937 Constitution retained and reused most of its predecessor – certain provisions were taken out and some new provisions were added but as the late Dr Garret Fitzgerald has also commented; most of our current Constitution is in fact the Constitution of 1922. This is a remarkable fact and demonstrates the prescience of those involved in 1922.

The aims which the 1922 Constitution attempted to achieve – more power for the people, responsibility of Government and Parliament – are still being sought today. We have yet to discover how to effectively achieve these aims but perhaps we can still learn from this 90 year old document by taking a closer look at the innovative provisions; at the ideals behind them and at the forces which prevented them from working. In this era of constitutional reform, perhaps some of the answers may lie in the past.