I am pleased to return to the Patrick MacGill Summer School and especially to take part in this discussion on the Constitutional Convention.
Seventy-five years ago, on 1st July 1937, the Irish people enacted Bunreacht na hÉireann by the relatively slim margin of 158,160 votes.
This was an auspicious and inspired decision.
I think it is important to begin with the simple statement that Bunreacht na hÉireann has served this country well.
Eamon de Valera who was the constitution’s primary author – ably supported by a team of first-class civil servants, including Maurice Moynihan, Michael McDunphy, John Hearne and Stephen Roche – did an extraordinary job in producing a progressive document that espouses liberty, democracy and human rights.
De Valera’s achievement in producing a political community’s common charter, steeped in democratic ethos, was all the more remarkable given the European political backdrop against which the Irish Constitution was drafted.
By the time Dáil Éireann debated the draft Constitution in May 1937, ten European nations were already under the control of dictators. Constitutional Government as a political system was under siege.
I believe Eamon de Valera has often got a raw deal from historians but in regard to the Constitution – and especially in the context of its time – I think it should be widely acknowledged that de Valera showed immense political acumen, courage and foresight in placing before the Irish people a profoundly democratic and republican charter to order our national affairs.
At a time when much of the world was falling to extreme ideologies, Bunreacht na hÉireann actually strengthened democracy and fundamental rights here. For example, no other nation in the world in the 1930s adopted by referendum explicit constitutional protections for the Jewish community.
The Constitution also gave us a strengthened judiciary which has used its independence to be a check on the power of the executive far beyond the situation in other common law countries. Bunreacht na hÉireann has been an evolving document in many areas, successfully being used as the basis for asserting many progressive rights not considered in 1937.
It is in my view fundamentally wrong to attack the Constitution in terms of its failure to reflect today’s morality while ignoring when it was adopted. Many of the Constitution’s biggest failing are not the failings of its drafters, but of the generations who have come since and have failed to update it.
Today, the first thing we should do when establishing a body to review aspects of the Constitution is to recognize the many enduring strengths of Bunreacht na hÉireann which are essential to the maintenance of our strong democratic traditions.
The Constitutional Convention
The job of the Constitutional Convention must be to ensure Bunreacht na hÉireann is fit for purpose for the 21st century.
The first and most urgent issue in our country is the challenge of fixing our economy and creating employment.
But everyone in politics is also acutely conscious that at the last General Election, the people sent a very clear message that they want us to reform the way this country is governed.
As a political class we have to be cognizant of that message and we also need to be under no illusion that political reform is inextricably linked to the fortunes of economic renewal.
Reform is not an optional extra in the process of building a lasting recovery – it’s an essential part of the agenda.
If we are serious about renewing our economy, I believe meaningful political reform has to be at the top of the Constitutional Convention’s agenda.
And by meaningful reform I would contend that there are much more pressing issues to be addressed than lowering the voting age or slicing two years off the President’s term.
In supporting the Constitutional Convention, I would like the Government to show some badly needed conviction and not just tinker around the edges.
Fianna Fáil believes that in the first instance the Constitutional Convention should immediately begin to deal with the more substantive and pressing issues of political reform, such as transparent and real Oireachtas reform, an overhaul of the electoral system and proposals to bring people outside the political system into government at the highest levels.
Fianna Fáil will continue to push the Government to ensure that these substantive issues are brought to the forefront of the work of the Constitutional Convention because these reforms our crucial to our country’s welfare and will mean better politics.
And better politics is important to everyone in our society because this means a stronger economy.
For the Constitutional Convention not to promptly proceed with discussing issues of substantive reform is a missed opportunity.
There is simply no doubt that the Irish political system failed in recent years.
Our political system, as set out in the most part in the Constitution, is in need of radical and urgent reform.
That is a fundamental lesson of the economic crisis which has inflicted this nation.
No part of the system predicted what happened and most parts of the system actively pushed policies which exacerbated the crisis.
Government, its agencies and regulators were not subject to enough scrutiny and did not draw on a diverse enough range of expertise.
As for the Oireachtas, in the decade before the crisis it showed no interest in economic fundamentals and did not debate the financial regulatory system until it was close to collapse.
Proposals to lower the voting age to seventeen on their own will do nothing to restore economic growth, but reforms that would allow non-parliamentarians with specific expertise to serve in the cabinet would impact favorably on our national efforts towards economic regeneration.
For such reasons, I am underwhelmed and concerned by the agenda the Government has, to date, set for the Constitutional Convention.
Apart from the composition of the Convention which falls far short of the Citizens Assembly model, the Convention has been disappointingly limited in the scope of its review.
The Government has chosen to limit the Convention’s work to seven areas. These seven areas are:
The Voting Age;
The Presidential Term;
Giving citizens the right to vote at Irish embassies in Presidential elections;
The Dáil Electoral System;
Amending the role of women in the constitution and promoting female participation in political life;
Provision for marriage equality ;
Removing blasphemy in the constitution
Of these seven areas, the only ones which represent an area where radical political reform could be possible is in regard to proposals concerning the Dáil Electoral System and promoting female participation in politics.
Fianna Fáil believes that the Irish political system requires a much more fundamental overhaul to ensure that it is fit for purpose in a modern society than the seven areas which the Government has given priority to in the Constitutional Convention.
Government’s Cynical Approach to Reform
Given that the Government seems determined to proceed along the lines I have outlined, later on, in the course of my remarks, I will outline Fianna Fáil’s position on these seven areas as well as detailing the fundamental issues of reform that we believe the Convention needs to deal with without further delay.
But before doing that, I do think it is important that people understand that the damp squib which this Government want to makes of the Constitutional Convention reflects a deeply cynical attitude towards political reform.
During the last election Fine Gael and Labour talked a good game on reform. But since the ballot boxes have been put away, their commitment to the reform agenda has been defined by a growing list of broken promises.
In the Oireachtas a so-called reform programme has actually made things worse. Committees are more unwieldy and the government exercises stronger control over them than ever before.
Although the Programme for Government pledges “stronger committees,” we recently saw the unprecedented action of a Government Minister insisting that the Public Accounts Committee – which, in modern times has done much worthwhile and pioneering work including the DIRT inquiry – stands down its inquiry into the Dublin Docklands Authority’s purchase of the Irish Glass Bottle site.
Allied to this has been the determined effort to undermine the PAC’s role in investigating the collapse in the banking sector which seems to suggest a worrying new trend of Government hostility to the Public Accounts Committee
The Programme for Government pledges the Government to reform and “a radical extension of the parliamentary question system” yet, in the Dáil the Taoiseach has brazenly halved the number of times he attends the House for questions, and it is now taking up to three months for some oral parliamentary questions to be answered.
At the election, Enda Kenny promised a programme to allow for a series of constitutional amendments to be decided on what was called “Constitution Day”, to be held within 12 months of the new Government being formed. That pledge was quickly abandoned and replaced with the Constitutional Convention which is a square peg and round hole amalgam of some of the constitutional reform pledges in the respective Fine Gael and Labour election manifestos. As a result, the proposal for the Constitutional Convention combines the flawed composition of the Labour manifesto, where the role of citizens is undermined by the presence of Oireachtas members, and the limited view of the Fine Gael manifesto by focusing on an extremely restricted range of issues
In relation to timings for the Constitutional Convention, the Government originally claimed that it would have begun by last summer and would be well on the way to preparing its final report by now. Instead, there has been on-going delay to go with its severely limited agenda.
Indeed, given the time-lines the Government has set out, it seems most likely that in the lifetime of this administration that the Constitutional Convention will not even complete the seven areas the Government has set out never mind progress beyond this work-load. This means that the fundamental political reforms which our society needs will have to await a subsequent Dáil’s attention. This, to my mind, is not good enough and is a real indictment of this Government’s commitment to manage and bring about necessary change.
Equally incredible is the extraordinary move in which the Government is refusing to let a Convention on the constitutional future of this country even discuss whether we have a second chamber in parliament.
What all of this reflects is that the Government wants to have a convention which cannot touch the fundamental issues of how the Oireachtas and the government work.
This is extraordinarily cynical and underlines that while the Government likes to talk the talk about reform, they won’t allow this agenda to touch on their own power or control.
It could be said that this Government’s approach constitutes a novel twist on the Augustinian maxim and might be described as give me real reform, but not just yet – or in fact any time soon.
Unfortunately, if the Government is to persist in this attitude, the momentum for political reform may be lost for a long time and the public will rightly become even more disillusioned with politics.
In relation to the areas that the Government has given priority to the Constitutional Convention to address, the first two topics are reducing the Voting Age and the President’s term.
I have no issue with reducing the voting age to seventeen, but this appears to me to be a prize example of the Government running with an idea while ignoring more important and urgent concerns.
It also begs the question surely the priority should be how we can get the third of people who have the franchise to use it before looking for ways to extend it?
In this regard, Fianna Fáil has already practically suggested a constitutional amendment to extend polling over two days in order to facilitate higher participation.
18 is by far the dominant voting age in democracies. Austria has recently reduced it. But does this issue really need to be priority discussion at a Constitutional Convention, especially if the Oireachtas were to agree on changing the age it could then be simply put to the people?
At this moment of continued economic crisis and with lost public faith in the role of politics, proposing to give priority to discussing the President’s term of office is ludicrous.
The Presidency is the one institution of our State which has retained and even grown in its public standing. Each of our heads of state has fulfilled the role of being a force for asserting shared values and rising above daily quarrels to understand what unites us.
The obvious question is, if it’s working why fix it?
The Presidency is in no way broken so why we should prioritise a change to the term of office or aligning it with unrelated political elections is not clear.
I believe one of the strong features of the Presidency is that the office is above party politics so I view it as a questionable proposal to embroil future Presidential Elections with Local and European Elections and for all these contests to be held at the same time.
I believe the matter of who is our Head of State is sufficiently important to justify a stand-alone election.
In 1945, the Presidential Election was held on the same day as the Local Elections.
In 1959, the Presidential Election was held on the same day as a constitutional referendum.
Anyone advocating today that Presidential Elections should be held on the same day as other electoral contests should read closely the Oireachtas debates from 1945 and 1959. The Government might want to pay particular attention to strong arguments from figures such as Richard Mulcahy and William Norton who both trenchantly made the case against holding the Presidential election in conjunction with other contests maintaining that this unnecessarily risked immersing the presidency in matters where there were party political disagreements.
In terms of the President’s length of term, I believe it should remain at seven years, but again, I think this is not something which would appear to be a priority for most people. I, for one, am glad that we were able to have Mary McAleese as our President for fourteen years.
One presidential reform I would welcome is to make the nomination process more open, but this is unfortunately not up for consideration. In the last two presidential elections all significant candidates were able to secure a nomination, albeit with some difficulty. I believe it was unwarranted that some candidates had to go to such lengths to even get on the ballot paper and Fianna Fáil will support a practical reform of the nomination process which is not too restrictive for candidates.
Giving citizens the right to vote at Irish embassies in Presidential elections Fianna Fáil supports the extension of the franchise for presidential elections to all Irish citizens including emigrants and, indeed, this proposal formed part of Fianna Fáil’s manifesto at the 2011 General Election..
Dáil Electoral System
At the Convention and subsequently Fianna Fáil will be supporting a reform of the electoral system to one which allows for a mixture of local and national concerns to predominate.
At the last General Election, we proposed a mixed system of constituencies and a national or regional list. This operates in many European countries and appears to work well.
The Australian and New Zealand electoral systems also have many points of merit and Fianna Fáil would like to see the Constitutional Convention discussing proposals that ensure TDs will remain in close contact with the people who elect them, while, at the same time, delivering a diversity of expertise to the Dáil.
Our current electoral system could be accused of encouraging clientelism and of putting parish-pump politics above TDs work as legislators. A hybrid electoral system would ensure that there are TDs who remain close to their constituencies, but it will also ensure there is sufficient space in the Dáil for people to concentrate on parliamentary work.
Amending the role of women in the constitution and promoting female participation in political life.
Fianna Fáil has brought forward its own proposals and we are working within our own party to advance the participation of women in political life. As part of our reform of the Dáil Election system, Fianna Fáil supports the introduction of measures to favour gender balance within a national list system.
The Constitutional Convention also proposes to discuss the relevant article concerning women.. Article 41.2.1 refers to women’s “life within the home.” This now reads as a very outdated and archaic provision Article 41.2.2 reads “The state shall, therefore endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.” De Valera said his intention in designing this provision was to protect women, however, this protection seems to have been, in any case, of little strength as Professor James Casey has pointed out that “it would surely be difficult for a court to prescribe measures for the fulfillment of this obligation, since this would involve questions of public expenditure priorities and value judgments.”
It is worth pointing out that the Constitutional Review Group previously considered whether Article 41 should simply be deleted or whether section 2.1 should be retained in an amended form which might recognise the contribution of each or either spouse within the home. The Group found it important that there is constitutional recognition for the significant contribution made to society by the large number of people who provide a caring function within their homes for children, elderly relatives and others. The Group put forward a revised form of Article 41.2 which reads
“The State recognises that home and family life gives to society a support without which the common good cannot be achieved. The State shall endeavour to support persons caring for others within the home.”
I believe the inscription of such a phrase into the Constitution would be a welcome addition to Bunreacht na hÉireann.
Provision for marriage equality
The Convention is to be asked to consider the issue of marriage equality yet, the Convention is supposed to be about political reform.
The issue of marriage equality has been referred to the Convention for the sole reason that Fine Gael and Labour were unable to agree a position.
This is a kick to touch which could mean that this important decision will not be taken in the lifetime of this Government. I think this is regrettable .
I have said many times, I support marriage equality .As a republican and as a believer in equality, I firmly belief that same sex couples should be able to marry.
Removing blasphemy in the Constitution
The constitutional article against blasphemy is to be discussed by the Convention. Ireland has a long-earned reputation as a country which respects the freedom of expression. However this has and should have limits. The question is where to draw the line?
At Fianna Fáil meetings I attended around the country, the overwhelming attitude was that this was hardly an issue that should be a priority issue for constitutional reform ahead of many other more pressing issues.
Fianna Fáil’s Reform Agenda
In contrast to this Government’s unwillingness to embrace meaningful political reform, Fianna Fáil has advanced significant proposals with the twin objectives of enhancing our politics and fixing our economy.
I have already set out our proposals on reforming the Dáil Electoral System so that we can have a more legislative focused national politics.
Fianna Fáil also has significant and far-reaching proposals for Oireachtas reform.
We especially want to strengthen the rights of parliament and believe that the influence of Government has become too pervasive over the interests of parliament.
We saw again the fallacy of this approach last week when the Government refused to accept any amendments in the Dáil to the Gaeltacht Bill.
We especially want to see the work of Oireachtas Committees streamlined and strengthened and we believe key Oireachtas Committees should be given constitutional standing. We also want to see a strong Oireachtas Committee charged with the responsibility of holding regulators to account.
In order to uphold parliament’s rights over the influence of Government, we also maintain that the election of the Ceann Comhairle should take place by secret ballot.
In France, a radical reform in 2008 means that the opposition controls the scheduling of parliament for a third of the sitting days which handle legislation. Fianna Fáil would like to see the Constitutional Convention examine this idea with a view to ensuring that Government does not maintain a stranglehold on parliament.
Ireland needs a parliament which has a direct link with citizens but is focused on national issues.
And right now, more than ever, Ireland needs a government which draws on the best expertise in the country.
It is for this reason that we believe at the forefront of the Constitutional Convention’s work should be an examination of reform procedures for choosing and operating both parliament and government.
As things stand, almost 20% of the members of the Dáil cease active involvement in most work of the Dáil because of their appointment to government. In our current political culture, we are also unusual in limiting who can serve in government. Therefore Fianna Fáil has proposed that members of the Cabinet should not simultaneously serve as members of the Oireachtas, and that persons who are not members of the Oireachtas should be allowed to serve as Ministers.
We believe it makes sense to bring people outside the system into government at the highest levels, up to and including the cabinet table. This would broaden the options open to a future Taoiseach in formulating his or her cabinet. Others nations use this system to draw on the best and most talented in their ranks to run government departments, and so should a modern Ireland. Politics in this country has been a closed shop for too long, and the economic crisis should be the number one exhibit in the case for opening it up.
At a time like this, when the people of this country have had to endure the worst recession in modern times, we must draw on every talent we have to get Ireland back to work and back on track. Politicians do not have a monopoly on wisdom, and I think it is only right that Government seeks to make full use of the best and the brightest in every section of Irish life to play their part in developing society.
Specifically, our proposal says that members of the cabinet should not be members of the Oireachtas while they serve as ministers. We think it would be a worthwhile exercise for the Constitutional Convention to examine this radical reform which would mean when members of the Oireachtas are appointed to Cabinet they would be replaced by an alternate while serving as a minister. The alternate would be on a list published at the time of the election, in a similar way to European Parliamentary elections. Under this reform, cabinet ministers would continue to require approval by the Dáil, answer parliamentary questions and participate in Oireachtas debates but they would not have votes.
We believe this system would allow Ministers to devote significantly more time to their ministerial duties and increase the number of Dáil members participating in all parliamentary duties. It would, in addition, significantly increase the accountability of ministers to the Dáil.
Our proposal to allow persons who are not members of the Oireachtas to be appointed to serve as ministers is equally radical and rooted in common-sense.
In such cases, a confirmation process would be put in place which would include a presentation of priorities before the relevant committee. In all cases, new ministers would present a detailed statement of priorities for debate by the relevant committee within one month of appointment.
As part of Oireachtas Reform, Fianna Fáil believes that the Constitutional Convention should immediately discuss the issue of Seanad Éireann.
The Government’s insistence on a Constitutional Convention which does not discuss the future of the Upper House in our parliamentary system is nonsensical.
The Government’s plans to unilaterally to abolish the Seanad outside the scope of the Constitutional Convention are misguided and will only serve to tighten their one-sided grip on political debate and reduce the scrutiny of ministers and legislation.
Because the government has a much lower majority in the Seanad, at the moment they are more willing to listen to other opinions when matters are debated there.
Abolishing the Seanad with no accompanying reform to government powers and the independent powers of the Dáil would be a major step backward. That’s why Fianna Fáil oppose it and we believe that a radically reformed Seanad has the potential to uphold constitutional stability; act as a check on government; scrutinize legislation; avoid parochialism; broaden representation and create a forum for cross party debate and discussion.
Among the specific reform measures Fianna Fáil has proposed for the Seanad and which we would like the Constitutional Convention to examine are
A reduced Seanad of 51 Senators
Direct elections for Senators
50% Gender Quotas for political party candidates in direct elections
Specific minority group representation
Senators elected from Northern Ireland
Enhanced powers of legislative scrutiny
Longer Seanad Terms
The Government’s haste to abolish Seanad Éireann has more to do with making a populist gesture than practical reform. People should not be deluded by the Government’s spin that such a referendum will save the exchequer. The 1997 All-Party Oireachtas Committee on the Constitution concluded any savings achieved by the Seanad’s abolition would be illusory because some functions would have to be reallocated to other parts of the political system.
I started by talking about de Valera’s great work in bringing forward the 1937 Constitution and I want to close by reverting to that. In doing so, I want to draw people’s attention to the fact that by abolishing the Seanad we may open up significant constitutional gaps.
It is a fact that abolishing the Seanad cannot be done by means of a simple amendment. The Seanad is mentioned in the Constitution over 60 times and each reference, no matter how ancillary, will have to be deleted.
A final observation in regard to the 1930s is that when de Valera included specific constitutional provisions dealing with entitlement to education, this was viewed as innovatory. Today no one views the right to “free primary education” as set out in Article 42.4 as anything out of the ordinary, but in the context of the 1930s this was seen by many as constitutionally radical . In our time, I would like us to take a similar approach. I will leave you with this thought, I believe that the Constitutional Convention should discuss the desirability of incorporating a constitutional provision conferring right of access to Health to the children of the nation similar to the provision in relation to primary education (Article 42).
As we approach the centenary of the Easter Rising, inserting such a provision in our constitution would give effect to the Proclamation’s pledge to cherish all the children of the nation equally in a new and progressive manner.