Can a constitutional convention offer real and radical change?

Following an economic and financial crisis in 2009, Ireland became one of the first countries that attempted to provide for a citizen-led programme of constitutional reform. Senator Ivana Bacik speaks about her experience as a politician who took part in the Irish Constitutional Convention. She suggests that a constitutional convention can offer real and radical change.

The Irish Dail (Credit: Justin Pickard, CC BY SA 2.0)

The establishment of an Irish Constitutional Convention was first proposed in April 2010 at the Labour Party conference in Galway, when then Labour leader Eamon Gilmore called for the establishment of a convention to revise the text of Bunreacht na hEireann, the 1937 Irish Constitution, in advance of the 1916 centenary.

Given the outdated language of some of the articles of the Irish Constitution, many of us greeted this proposal with real excitement. The proposal for a convention was subsequently included in the Programme for Government drawn up between Fine Gael and Labour following the February 2011 General Election. In July 2012, motions were passed in both the Dáil and the Seanad (Upper and Lower Houses of the Irish Parliament) to enable the establishment of the Convention, and it held its first meeting in December 2012.

I was very proud to be chosen as leader of the Labour delegation to the Convention, and participated actively throughout the Convention sessions, which ran from December 2012 – February 2014.

The remit of the Convention was to consider and make recommendations to the Houses of the Oireachtas (Parliament) on a range of specific matters, within a designated time frame. Within two months of the date of the first public hearing, the Convention was required to report and make recommendations on two preliminary matters, namely, the reduction of the presidential term of office to five years, and the reduction of the voting age from 18 to 17. Within ten further months, the Convention had to provide a report and recommendations on six other specified matters:

(a) review of the Dáil electoral system;

(b) giving citizens resident outside the State the right to vote in presidential elections;

(c) provision for same-sex marriage;

(d) amending the clause on the role of women in the home and encouraging greater participation of women in public life;

(e) increasing the participation of women in politics; and

(f) removal of the offence of blasphemy from the Constitution.

Finally, and again within one year of the date of the first public hearing (i.e., by December 2013), the Convention was empowered to report on such other relevant constitutional amendments that might be recommended by it. The Government also committed to providing in the Oireachtas a response to each recommendation of the Convention within four months and, if it accepted the recommendation, was required to indicate the time frame envisaged for the holding of any related referendum.

Many commentators initially expressed disappointment at what they argued was the highly limited scope of the Convention – and many expressed cynicism at the likelihood of any radical change as a result of the Convention. However, as the Convention became established, and was seen to carry out its work meticulously and carefully, with enormous commitment shown by the citizen and politician delegates and by the wonderful administrative staff, the real potential for reconstruction, indeed the transformative potential of the Convention, became developed and was acknowledged even by the original critics.

This convention represented the first attempt by any Irish government to provide for a citizen-led programme of constitutional reform. There had previously been large numbers of other reports – notably the comprehensive 1996 expert-led Constitution Review Group report; and the many reports of the Joint Oireachtas Committee on the Constitution (which amount to politician-led reviews). Many important and thoughtful proposals for reform were generated by those reports, and the Convention itself did draw on the work done previously.

However, this Convention was notably different. It was made up of both citizens and politicians; 66 of the 100 members were citizens selected randomly, as a representative population sample. There were 33 politicians, selected proportionate to Oireachtas representation; and one chairperson, Tom Arnold, who carried out his role with great skill and ability over the weekend sessions of the Convention held at the Grand Hotel, Malahide; and over the various other Convention public meetings around the country that took place during its lifespan.

The two preliminary issues for consideration (the term of the Presidency and the reduction of the voting age) were both considered by the Convention in January 2013 – and following secret ballot, a majorityrecommended that the voting age should be reduced to 16. A majority also recommended that the age of candidacy for Presidential candidates should be reduced from 35, but voted against any change to the presidential term of office. The government has since then committed to holding a referendum on both those recommendations; this is expected to take place in 2015.

In February 2013, the Convention considered the role of women in the Constitution, with an overwhelming majority (88 per cent) recommending amendment of the clause in Article 41 currently recognising only women’s role in the home. The majority favoured replacement of this provision with a gender-neutral clause, recognising the important role played by carers generally. The Convention alsorecommended encouragement for greater participation by women in politics. The Irish Government has appointed task forces to investigate these recommendations further, and report back by 31^st October 2014.

Over the weekend of 13-14 April 2013, the most controversial question for consideration by the Convention was discussed; that of marriage equality. Significantly, a majority of 79 per cent favouredchanging the Constitution to allow gay couples to enter civil marriages – in line with established Labour policy. The announcement of this result constituted a major boost to the campaign for marriage equality and the Irish Government has now committed to holding a referendum on this subject in 2015 – a real vindication of the Convention’s work.

The review of the Dáil electoral system was considered in May and June 2013 – the majority favoured minimal change to the basic structures of the Dáil electoral system. In September 2013, the Convention considered the question of extending the vote in Presidential elections for citizens resident outside the jurisdiction; this was passed by a strong majority, with powerful contributions made by video-link from Irish citizens resident in a range of other countries. In November 2013, the Convention debated removal of the offence of blasphemy; 61% believed the offence should be replaced with a new provision covering incitement to religious hatred instead.

In addition to the six specified issues discussed above, the Convention was given the power to consider and report on any other relevant constitutional amendments – and has been given two further weekends in February 2014 to deal with other issues. Campaigns were initiated by NGOs to have particular matters included under this heading. Following a vote of the delegates, it was decided that the two issues for debate should include that of economic, social and cultural rights, dealt with over the weekend of 22^nd – 23^rd February 2014. The topic of Dail reform, which won narrowly over Seanad reform, was debated over the weekend of 1^st – 2^nd February.

The recommendations emerging from those sessions included a series of worthwhile reforms to Dail procedures, notably the need to elect the Ceann Comhairle (Speaker) of the Dail by secret ballot of all TDs; and a strong majority in favour of inserting specific protection for economic, social and cultural rights (like the rights to housing and healthcare) into the Constitution. The Irish Government has still to respond on these later reports, but already it is clear that the Convention recommendations on many matters will lead to the holding of referendums on specific issues in 2015; and we are likely to see real and significant constitutional change made as a result.

More than seventy-five years after the enactment of Bunreacht na hEireann, it is widely acknowledged that we need a Constitution that reflects the new multi-cultural Ireland, that reflects the diversity and pluralism of our population and that no longer bows the head in genuflection to the ideologies of a particular religion. The energy and commitment which both political and citizen members brought to their work on the Convention was very impressive.

The recommendations made on each of the specified issues offer the prospect of bringing about real and radical change within the fundamental rights provisions in particular. The referendums likely to be held in 2015 on the basis of our recommendations have the potential to bring about a dynamic set of changes to the constitutional text – changes that may generate real reconstruction, along the lines of a truly republican document.

—

Note: This article originally appeared on the LSE Constitution UK blog. It gives the views of the author, and not the position of the Democratic Audit UK, nor of the London School of Economics. Please read our comments policy before posting.

—

Ivana Bacik is an Irish Labour Party Senator for Dublin University. She is also the Reid Professor of Criminal Law, Criminology and Penology at Trinity College Dublin. She tweets from @ivanabacik.