A Day at the Constitutional Convention

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 100th 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

 

 

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