In an interesting piece in today’s Irish Times (see here), Peadar Kirby and Mary P. Murphy make a persuasive case for involving ordinary citizens in the constitutional convention that the government is anticipated to establish in the very near future.

While they take issue with the approach proposed by We The Citizens (which some of us involved in this blog were also involved with), they share the same fundamental ambition of actively engaging with citizens in the process of political and constitutional reform that this government has promised (and hopefully will start delivering on soon).

Clearly there are different ways of doing this, and Kirby and Murphy’s approach does have its merits. But to follow their agenda means the adoption of a completely new constitution for a new Republic: Kirby and Murphy favour root and branch reform of our Constitution to produce a ‘Second Republic’.

However, personally I still hold to the view that a more realistic way of proceeding with the government’s promised constitutional convention would be to see it as operating in a number of parallel ‘strands’, with a citizens’ assembly (possibly more than one) as one ‘strand’ focusing on certain key questions. There are a number of advantages to this approach, principal among them being that it would enable certain reform measures to proceed apace without having to wait for debates (tortuous as these are likely to be) to conclude on full-scale constitutional reform.

In a spirited opinion piece in today’s Irish Times, Daniel Sullivan takes issue with gender quotas (see here), describing the idea variously as wrong, unworkable and even ‘boneheaded’. He appears to have three main problems with the proposal.  

First, he asserts that the quotas will do nothing to solve the wider problem of growing political apathy. Well, actually that is not the ‘problem’ that quotas are designed to solve. Growing disengagement of citizens with politics is a phenomenon common to all democracies that perhaps large-scale political reform might over time help to address. But the specific issue that quotas should help resolve is the serious gender imbalance in our political representation.

Second, he says that quotas will ‘do nothing at all to address the root causes of the original 4 Cs’ (cash, childcare, confidence and culture). Er, what? Clearly he hasn’t appreciated the close relationship between the various Cs: a change in the composition of our political elite will impact more widely on culture, on methods of practice, on support mechanisms in politics. In short, if you change who is in an organization (on a sufficiently notable scale) you change how it will operate.

Third he observes that as this has never been tried in a PR-STV system it simply won’t work, his point being that this will cause vote-management difficulties for parties forced to field more candidates. He cites unnamed ‘psephologists’ to support his argument. It is, indeed, true that a long-established mantra for parties in Irish elections is to limit the number of candidates they field. But, actually, that says more about how STV operates in Ireland than it does about the electoral system itself. In the other two countries that use STV – Australia and Malta – there is not the same hang-up about limiting the number of candidates. Furthermore, if Irish parties end up having to field more candidates to achieve their gender quotas this might actually help to eat into the ‘bailiwick’ focus of our electoral politics – starting to move us away from a fixation of having candidates selected in large part because of where they come from/live.

In a separate article in the Irish Times, Minister Kathleen Lynch (see here) reminds us of just how far Ireland lags behind other countries in Europe in having such a poor representation. No one is pretending that gender quotas are the be all and end all – but they are an important first step in helping to bring Ireland into the Twenty-First century.

More notably form a political reform perspective is one part of the interview which has attracted less attention which is her views on opening up the budget process. The Budget, of course, is an example of the extreme executive dominance in Ireland and of course of the Minister for Finance can even keep his own leader in the dark until the last minute on changes which dictate much government policy.
Burton has called for the information and the options (some of which found their way into the Bundenstag) to be published openly well in advance. That would be almost revolutionary from an Irish perspective. She also said that the detail should go to parliamentary committees “Each committee should take all of the option papers and look at the options wherever they came from.”
If this were to happen and the committees had power to make recommendations then this would go a long way to rebalancing the various arms of government here. After all if the Bundestag can debate out budget in advance why should not our own TDs?

Two areas greatly in need for reform are funding of politics and the operation of the Dáil – both in the news today (see here and here).  In fairness to the government, some move has been made on both agendas (more generally, see here): legislation has been brought in relating to donations to political parties; and there have been changes to how the Dáil operates including the introduction of Friday sittings.

But there is a lot more to do, a lot of which has been promised the Programme for Government but not yet dealt with.

• The government promised to end the scandal of unvouched expenses. There is much more to this than the issue currently in the news relating to unvouched ‘leaders’ expenses’ to independent TDs and Senators. Each and every TD and Senator has the right to take their parliamentary expenses as unvouched (meaning that they don’t have to provide receipts or prove that the monies were spent on the purposes for which they should), and many take this option.
• The government has yet to ban corporate donations.

And there are changes not referred to in the Programme for Government that actually would be well worth considering, notably:

• Why can’t the Dáil meet on a regular 9-5, Monday-Friday (or Monday-Thursday) basis? As reported in the public accounts committee, this could save the public exchequer a lot of money (on over time payments to staff). It would also be more family friendly (one of the factors in our low numbers of women TDs). And it would help to reduce the parish-pump focus of our politicians, because they would have less time in their constituencies.

The reform agenda of this government is undoubtedly moving forward, but at snail’s pace. As we approach the end of its first year in government, now is as good a time as any for it to step up a gear.

The thirty year rule allows for the release of Cabinet Documents after the efflux of a thirty year period from the year in which they were created. Section 10 of the National Archives Act allows for the inspection of records except where they are less than 30 years old (s.10.1 (a)) or older than 30 years where their release may be contrary to the public interest, breach of statutory duty or cause damage or distress to living persons (s. 8.4). The documents which are the subject to the provisions of s 8.4 can be reviewed after a period five years by a member of the Government Department responsible for the records. Furthermore, under s.10.6 a Minister, or member of Government, is entitled to grant access to departmental document prior to the elapse of this thirty year time period.  This section was used in 1992 to allow for the release of Cabinet Documents in the wake of the confusion of the Hamilton Judgment.

In England, the release of Government and Public Documents is governed by the Public Records Acts 1958 and 1967. The original time limit for the retention of Government documents without exceptional circumstances was 50 years. However, the Public Records Act 1967 changed it to the Thirty Year Rule as known today.  The release of documents is further controlled by the ability to further restrict documents on grounds similar to the Irish National Archives Act 1986. These grounds restricted the release of information which could cause distress or embarrassment to living persons or their descendants, information received in confidence by the Government, certain papers relating to Ireland and certain Commonwealth documents and papers of a sensitive nature to the State.

However, Freedom of Information has changed the position slightly. In England the changes are not as dramatic as the Irish Situation. In the Original Freedom of Information Act 1997 cabinet papers could be the subject of an FOI (Freedom of Information) request after five years. Of course the request would be subject to the usual restrictions but it was an element of progress. However, the amendment act of 2003 pushed this time limit to 10 years. Therefore documents relating to Cabinet Records from April 1998 could be requested in line with general Freedom of Information Requests[1].

The English procedures with regard to the release of Government Information were not the only aspect of Whitehall style cabinet procedures that turned Merrion Street into a carbon copy of Whitehall practices. The adoption of the procedures of the nearest and closest relative to a jurisdiction is fine and well at the embryonic stages of democracy. However the point must be asked if the English system which is controlled by the over arching principal of Parliamentary Soverenity is the most apt for a representative democracy, like Ireland, that is founded on the people being the source of power. Therefore in a broad context of political reform the information relationship between the citizens and the Government is developing but should be under constant review.

He correctly identifies that at the heart of the matter is the fact that outside the 15 members of the Cabinet the rest of the Dáil has little or no role in the formulation of legislation. Until Oireachtas committees are given a real say in the drafting of legislation and the formulation of budgets, reform will be little more than skin deep.

Is he correct that given the predictable way the Opposition behaves in the Dáil, it is questionable whether most of our politicians really have any interest in being legislators?

Certainly simply having a cut in TD numbers and abolition of the Senate at the heart of the political reform agenda is insufficient. More should be done to increase the power of backbenchers and I would argue to involve the people in decision making between elections.

The constituency support estimates based on the poll figures are as follows:

Based on these constituency estimates, the number of seats per party would be estimated as follows on the basis of constituency support estimates (simply using a d’Hondt method to determine which party wins the seats),

Amending the model to account for seats that may be won or lost on the basis of a large/small number of candidates contesting the election (e.g. Others being allocated a seat in Laois-Offaly mainly due to the large number of independent candidates who contested this constituency), vote transfers and vote management (e.g. discrepancies between votes won by party front runners and their running mates which would see potential seat wins fall out of a party’s hands), the seat allocations across the constituencies would look more like this:

What can be noted here is the impact of different parties falling above or below certain “tipping points” at which a drop or increase in their national support patterns results in even larger levels of seat gains and losses. The impact of changed competition levels is also evident – projected Labour seat losses are naturally down to the party’s declining poll ratings especially relative to their support level in the February election, but perhaps are also heavily shaped by the surge in Sinn Fein support in polls evident since the start of the presidential election campaign, meaning that seats they won on roughly similar levels of support in the 2002 and 2007 general elections instead now would be falling into the hands of their main rivals on the left of the political spectrum.

As well as the significant recovery for Fianna Fail and the strong showing by Sinn Fein, the other main point to note here is that the model predicts seats for the Green Party in Dublin North and Dublin South with the party also expected to be well in contention for a seat in Dublin South East as well.

The analysis estimates seat numbers for Fine Gael and Labour at 74, while seat levels for a potential Sinn Fein-Fianna Fail alliance would stand at 69. Seat levels for a potential Left Alliance government, incorporating Sinn Fein, Labour and various left-of-centre independents and small parties (including the United Left Alliance) would come in around the 60 seat level. Ultimately on these seat estimates, the likelihood of a hung parliament involving a minority government supported by a significant array of independent and small party TDs would appear to be the only option, unless Fine Gael and Fianna Fail agreed to end Civil War politics once and for all and enter into a coalition government arrangement. If we end up with a centre-right bloc involving the traditional “two main parties” facing off against a not-insignificant bloc of left-leaning TDs and parties then we can really talk about a political earthquake in Irish politics.

One final conclusion, and this perhaps my final one for 2011, is to note how fluid politics stands in the post-NAMA landscape – the strong trends evident in the polls of 2010 and early 2011 are now being reversed with the recovery of Fianna Fail and the decline in support for Fine Gael and Labour. But perhaps another conclusion might be that ultimately - with the two mains parties appearing to head to dominate the political scence once more (unless Sinn Fein can maintain the political momentum that has driven them since the Doherty victory in the Donegal South-West by-election of November 2011) and with Labour again seen to be holding just around one-tenth of political support - the status quo will right itself despite all talk of earthquake elections. Maybe we can only conclude that when it comes to Irish politics that:

Nothing ever happens, nothing ever happens at all

The needle returns to the start of the song

And we all sing alone like before.

Will Ireland need to hold a referendum to ratify the fiscal ‘compact’ recently agreed by 26 EU member states? To answer this, I will explain the concept and status of sovereignty in the Constitution. This, in turn, dictates whether, and under what circumstances, Ireland’s participation in supra-national institutional systems requires constitutional amendments specifically permitting such arrangements.

Along with a good deal of rhetoric about sovereignty in the preamble and Article 1,  Article 5 of the Constitution says that “Ireland is  a sovereign, independent, democratic state”. This sovereignty principle has legal effect, enforceable by courts; it is not simply a high-minded national mission statement. The description of Ireland as “sovereign” binds all the organs of the State, and has formed the basis of important Supreme Court decisions. Of course, the term “sovereignty” is so vague and open-textured as to accord the judiciary a great deal of interpretive power, straying beyond the domain of law as such, mandating the courts to consider, essentially, the broader nature and ethos of the State, first, in order to determine, second, what specific constitutional strictures flow from this. Reflecting the nature of the concept of sovereignty itself, the Constitution aims, broadly speaking, to protect the sovereign powers of its institutions by fettering the ways these institutions exercise such powers. Sovereign power cannot be exercised against itself.

But there are clear limits to this sort of constitutional oversight. The state’s freedom of action is often voluntarily fettered without obvious constitutional consequences. For courts, at least, the concept of sovereignty our Constitution imposes is a relatively formal and technical one. It certainly does not empower the courts to ensure the Irish nation retains a bracing and virile control over its own destiny, as the aesthetic and rhetoric of the document might ostensibly suggest.

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To illustrate this, one of the question I am most frequently asked by constitutional law students is roughly the following: “if the Constitution protects sovereignty, and everyone says the IMF/ECB bailout gives away economic sovereignty, then how can the bailout be constitutional?”

The answer is roughly as follows: while the Constitution prevents the powers of our Legislature, Executive and Judiciary from being formally devolved or alienated to other bodies, domestic or foreign, it cannot prevent these institutions from exercising these very powers in such a way as substantively fetters their freedom of action in real terms. Thus, while the Constitution prevents legislative powers being devolved or alienated without an appropriate amendment specifically mandating this, it cannot prevent, for example, that loans the State receives are conditioned on the legislative power being exercised in a manner dictated by other authorities.

Unsurprisingly, the students find this answer somewhat baffling and unsatisfactory.

In any case, the real constitutional barrier to participation in supranational institutions is not the broad, sweeping assertion of “sovereignty” in Article 5, but rather, the vesting of legislative, executive and judicial powers, by the Constitution, in the domestic organs of State, the Oireachtas, Government and judiciary, in Articles 15.2.1, 28.2 and 34.1 respectively. The vesting of powers in organs prevents these organs from alienating or abdicating their powers to external bodies. This is clarified in Article 6 which sets out that the “powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.” Thus, the Oireachtas cannot pass a statute devolving legislative power (except on matters of “detail”) to a Minister or any other body. In this way, “sovereignty” is self-limiting; sovereign powers cannot be exercised so as to alienate these very powers. These powers are exclusive, and cannot ordinarily be fettered by being pooled or shared with other bodies, even when shared at the initiative of the body in which the power in question is constitutionally vested.

This is essentially the reason why adhesion to the EEC in 1972 required an amendment to the Constitution. While the conduct of foreign relations comes under the Executive power in the Constitution, and so international treaties can normally be signed by the Government without specific constitutional provision for these, the Government’s exercise of this foreign affairs power cannot be used in such a way as alienates or devolves, to foreign or supranational bodies, powers which, by the Constitution, are vested in the domestic organs. This includes alienation of the executive power itself. It was mainly the extensive and novel nature of community law, its supremacy over national law, for example, the effect of regulations and ECJ decisions, which required a referendum to ratify the initial Treaty in the first place. The signing of this treaty was effectively to alienate to supranational bodies powers which the Constitution vested exclusively in the domestic organs of State; therefore, it would have been unconstitutional had the Constitution not been amended so as to make specific provision for it.

So while Article 29 now specifically allows for membership of the EEC and EU,  Article 29.4.10 also sets out:

“No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities, or prevents laws enacted, acts done or measures adopted by the European Union or by the Communities or by institutions thereof, or by bodies competent under the Treaties establishing the Communities, from having the force of law in the State.”

This essentially means that the other provisions in the Constitution vesting exclusive sovereign powers in domestic institutions cannot now be read as invalidating laws, acts or measures “necessitated by the obligations of membership of the European Union or the Communities”. Therefore, constitutional provisions on national sovereignty are qualified with reference to the requirements of EU membership. However, this did not mean that the deepening obligations of EU membership were Constitution-proofed for all time, as opposed to these obligations as they stood at the time Article 29.4.10 was inserted in the Constitution by amendment.  In the landmark Crotty case (1987), in the context of a challenge to the ratification of the Single European Act, the Supreme Court held that the initial “consent” to in Article 29.4 did not cover all future changes in the constitution and powers of the EEC/EU. Treaties devolving significant new powers could not be constitutionally allowed unless an amendment made specific provision for these. This decision essentially underlay the necessity of holding referendums to allow for the ratification of the treaties of Maastricht, Amsterdam, Nice and Lisbon.

Let me now turn to the prospective fiscal compact treaty, which can only be approached at a very general level, given that its precise terms are not yet known. What is known is that this will constitute a multilateral international treaty outside the existing structure and treaties of the EU, and that it will contain some form of supranational sanction upon national budgetary policy. Therefore, this constitutional debate is not at all akin to that which took place on the necessity of the Lisbon amendment. Clearly, the fiscal compact treaty is not “necessitated by the obligations of EU membership” – as Britain has demonstrated – therefore, it is not covered by the existing provisions of article 29.4.10. If a member state can legally remain outside the agreement while still remaining a member state of the EU, participation in this agreement is clearly not “necessitated” by membership. This raises the prospect of fresh constitutional consent being needed, but this would only apply if the agreement formally fetters, afresh, the powers of the national organs.

Then, the question can be phrased as follows: since the fiscal compact treaty is outside the scope of the existing constitutional provisions allowing for EU membership, does it formally fetter or alienate the governmental powers vested by the Constitution exclusively in the domestic organs of State?

Since we do know that the fiscal compact treaty will entail submitting national budgetary powers not only to scrutiny and informal supervision– but to specific, formal supranational sanction – it is almost certain to require an amendment.

Darren O’Donovan argues on humanrights.ie that this treaty will require an amendment for the same reason that an amendment was held in 1996 allowing for the ratification of the statute of the International Criminal Court. He rightly says: “this was necessary because the international agreement was formally transferring powers previously vested exclusively in the organs of our national governments to the International Criminal Court.” Because of the British veto, the fiscal compact will entail an “entirely separate and fresh Treaty regime.” From a constitutional point of view, this means that the question of whether amendment is required is the same as in the case of Ireland joining an entirely new supranational governmental entity. Then, the question turns on the degree of formal sanction power granted to the supranational entity, and the extent to which this correspondingly alienates the powers constitutionally accorded to the domestic organs. In Crotty, the Supreme Court held that the foreign policy provisions of the SEA would require a fresh amendment, because they could partly alienate the Executive’s existing constitutional power to formulate and conduct foreign policy. This was not covered by the preexisting provision validating that which was “necessitated” by community membership. Although its precise form is unclear, a fiscal compact would raise similar problems from the point of view of both legislative and executive power. The power to determine taxation and expenditure is held in trust from the people by the Oireachtas and cannot be alienated by the government (formally, at least) to any supraconstitutional authority. Article 28.4.4 sets out that “The Government shall prepare Estimates of the Receipts and Estimates of the Expenditure of the State for each financial year, and shall present them to Dáil Éireann for consideration”, but it is in any case obvious from the overall constitutional scheme that budgetary choice is a core component of national sovereignty and within the institutional competence of the domestic organs.

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It should be noted that the Crotty rationale was not applied in two unsuccessful challenges in the foreign affairs arena, in Boland and McGimpsey, which involved challenges to the constitutionality of the Sunningdale and Anglo-Irish agreements respectively. These did not involve any alienation of the State’s sovereign executive power in the foreign affairs arena; in particular, the difference with the SEA lay in the bilateral nature of the agreements, with the consequent maintenance, by the State, of an effective veto in respect of the content of any common policy.

Clearly, this qualification on the rule against alienating sovereign powers does not apply in the case of a prospective supranational budgetary discipline body, equipped with sanctions that would be valid at international law. Whatever the eventual detail of the treaty, the political consensus seems to have crystallized around the need for enforcement powers of some sort – meaning that the powers recognized will almost certainly be of an executive nature, from the constitutional standpoint, therefore represent an incursion on the domestic executive’s constitutional authority in a way that is not currently provided for. By contrast, the IMF memorandum of understanding does not create legal obligations at international law, as such, and so does not formally, as opposed to substantively fetter the executive and legislative powers in a similar way.

The Crotty decision apparently caused consternation in the Government in 1987, as it had previously been assumed that the courts would practically never exercise oversight in the Government’s conduct of international relations. James Casey notes (Constitutional Law in Ireland ,3^rd ed, 2000): ‘it was suggested that the line between the executive and the judicial power had been blurred, with the result that no one could be certain about the constitutional limits on the Government’s power to conduct international relations.’ Moreover, the full implications of the Crotty decision, and its conception of the underlying concept of sovereignty in the Constitution, is still quite unclear.

The analysis in this post assumes that it will be actually possible to conclude a separate treaty regime. As Darren O’Donovan pointed out, it has been argued that any effective modification to the provisions on monetary union could only be carried out within the existing legal framework. If true, this would change the constitutional calculus in an unpredictable way.

The constituency support estimates based on the poll figures are as follows:

Based on these constituency estimates, followed by amending the model to account for seats that may be won or lost on the basis of a large/small number of candidates contesting the election (e.g. Others being allocated a seat in Laois-Offaly mainly due to the large number of independent candidates who contested this constituency), vote transfers and vote management (e.g. discrepancies between votes won by party front runners and their running mates which would see potential seat wins fall out of a party’s hands), the seat allocations across the constituencies would look more like this:

On November 11, 800 citizens from across Belgium were brought together to discuss the future of their country. G1000 was conceived a few months ago by a small group of Belgian citizens (the key player is a prominent author and columnist, David van Reybrouck; the others are a mix of academics, journalists, and civil society activists) who were concerned about the failure of their political system to get to grips with the economic crisis.

Exercised in particular by the inability of Belgium’s politicians to form a government and the resulting political limbo, the opening line of the group’s manifesto, states: ‘if the politicians can’t find a solution let the citizens’. G1000 seeks to show the country’s political leaders that they should engage with the citizens in seeking a way out of the mess. Their principal objectives are both to show that deliberative democracy can work, and to produce concrete proposals for the government to consider.

Making use of every means possible to mobilize interest (briefings around the country, media interviews and newspaper articles, website and social media) they put out a call to the wider Belgian public to propose policy issues for discussion. This resulted in over 5,000 proposals, which the organizers than aggregated into 25 key topic areas, ranging from detailed proposals for political reform through to key economic and social policies. Belgian citizens were then invited to vote on-line for the topic area that most concerned them, resulting in the three topic areas that were discussed at the Citizens’ Summit: social security; wealth inequality and the economy; and immigration policy (in a final session of the day the tables were each invited to select a topic from the remaining 25 key topic areas and discuss that).

Meeting in a beautifully restored converted warehouse that dwarfs the RDS, the citizens spent a full 10-hour day (from 9am-7pm) discussing a series of policy topics, producing concrete recommendations and then voting (electronically) on them. Despite the length and intensity of the schedule, the fact that it was a beautiful day and a public holiday to boot, and that people were working in three languages (Dutch, French and German; requiring simultaneous translation) they stuck to it: 800 people turned up and the vast bulk of them stayed to the end.

The method of operation bore many similarities to how we ran We The Citizens: the citizens were selected randomly (to fill key social-economic quotas) by a market research company; they sat at small round tables (maximum of 10 to a table) with a professional facilitator ensuring that the deliberations and discussions ran smoothly. Each session started with short presentations by experts and their materials were circulated to the citizens. After the expert presentations, the citizens were given about an hour to discuss the issues and make recommendations that were fed up to a top table where they were aggregated. At the end of the session, the key recommendations were put up on a screen and the citizens were asked to vote electronically for their top two. The results were presented to them instantaneously. (More details will be posted here in due course).

Running in parallel with the G1000 Summit, there were groups of citizens around the country (‘G-offs’) that met in their communities and replicated the same discussions remotely, feeding in their recommendations to the main hall electronically. In addition, there were ‘G-homes’, in which from the comfort of their homes individual citizens signed in to an innovative software system (‘synthetron’) where they could deliberate virtually with their peers and similarly make recommendations.

I was one of a small group of international experts (a mix of academics, and people working in civil society groups and international organizations from Denmark, Netherlands, Portugal, France, Ireland, the USA, and the EU) invited by the organizers to observe the process (UCC’s Clodagh Harris was one of the other members).

The work of G1000 is not complete. The next stage, G32, will involve a small core of citizens who self-nominated from the G1000, G-off and G-home groups, with their names selected randomly from a box. They will meet over three weekends to discuss in detail the proposals that emerged from the Citizens’ Summit, with a view to fine-tuning them into workable recommendations to be delivered to the Belgian government early next year.

The G1000 Citizen’s Summit was deliberation on an industrial scale. Highly moving to witness, the day was an inspiration to observe, and judged by the loud cheers and endless claps at the end an inspiration to the participants too.