Does Ireland need a new constitution?

Yesterday’s conference on constitutional reform brought together lawyers, political scientists and economists to discuss the question whther Ireland needs constitutional reform. Though the only media coverage of the even related to Michael McDowell ‘slamming’ the media, a much more interesting conclusion emerged. There was a surprising consensus on the answer to the question set – no.

While most speakers agreed that the constitution is not perfect, most agreed that the constitution was not the proximate cause of the current economic crisis and the policy failures that led to it – though some of us argued that the political system can be blamed for those policy failures. In recent months many political leaders have called for radical changes and seem to indicate that under a new constitution these policy failures would not have happened. To be fair to those calling for reform, most are not setting out specific changes they want but indicating that they’d like a debate on changes. Stephen Kinsella pointed out that economic bubbles have been happening for centuries under all types of regimes and that it might have more to do with human nature than specific constitutional forms.

Nearly all the speakers referred to the high possibility of unintended consequences of constitutional change and the audience was reminded that a new constitution, as many politicians are calling for, might lead to us to have to cast aside case law that gives our current document a degree of predictability. Under a completely new document the judiciary might have a much more free rein to make law.

Some speakers spoke about specific reforms, such as the proposal to have an explicit article on children’s rights. As well as pointing out that children’s rights are already protected under the current document, Oran Doyle pointed out that a new explicit right would have to mean that judges have the right to determine what’s in a child’s interests, and there might not be the reasonable starting assumption that parents have the interests of the child at heart.

David Farrell reiterated the point we’re generally agreed on at this site, that electoral reform is neither necessary nor desirable, and that any change may lead to a more emasculated parliament because of the likely increased power of party leaders. I argued that we could separate government and legislature and create a class of parliamentarians if we made the Dáil much more independent of the government, by 1. rewriting the standing orders to remove the executive dominance and 2. allowing ministers to be chosen from outside the Oireachtas and forcing ministers to resign their seats if made ministers.

The general consensus one would have come away with was that while reform is necessary and welcome, one should proceed cautiously when dealing with the constitution. Radical and potentially effective reforms such as the setting up of a independent economic forecasting agency, or a strengthened C&AG that evaluated policy might achieve more, and more easily.

7 thoughts on “Does Ireland need a new constitution?

  1. Having attended this event, Eoin’s comments need to be put in context.
    1) The conference was “advertised” only 3 days beforehand. As far as I can make out, it was only publicised on this web-site on Tuesday last 18th May 2010
    2)I doubt that there were more that 50 people present, at a maximum. The attendance seemed to consist mostly of lawyers. There seemed to be very few economists present. I suspect that a proportion of the attendance were students. It is not clear how far the “UCD Constitutional Studies Group” went to publicise the event eg. it was not referred to on
    3) None of those who have called for constitutional change – in whole or in part – were speakers. It is not clear that they were even invited or notified of this event.

    IMO opinion, radical changes in how we govern ourselves are needed. Much can be done without constitutional change. However, changes to those articles of the constitution on our way of governing ourselves will also be needed.
    Take one of your own suggestion ie. “2. allowing ministers to be chosen from outside the Oireachtas and forcing ministers to resign their seats if made ministers.” implies a change to Articles 28.7.1 and 28.7.2.

    If we are going to change than, what other checks and balances on the exercise of political power do you propose?

    Your account gives succour to the cast of mind depicted by the late Prof John Kelly TD. “Ireland’s political and official rulers have largely behaved like a crew of maintenance engineers, just keeping a lot of old British structures and plant ticking over” (Sunday Tribute 19 October 1986 in a book review).

    This crisis shows that we have a lot of work to do to improve our way of governing ourselves. Given the scale of the crisis and the home-grown aspects of it, we cannot afford any sacred cows – no matter how difficult it might to gain acceptance foe new and different ways of doing things. Yesterday’s conference was part of various initiatives that have emerged since the current crisis erupted.

    Bíonn gach tosnú lag.

  2. As one of the conference organisers, I would like to thank Eoin for this summary of the events and everyone who attended and took part. It was heartening to see such interest in this issue and the willingness of both speakers and audience members to make very thoughtful contributions on the issues discussed during the day.

    As Donal has pointed out, the conference was put together at very short notice (partly because we wanted to allow people an opporunity to respond to a lot of the patent nonsense on the Aftershock programme) but it was advertised as widely as time would allow and we were very grateful to everyone, especially the speakers, for their willingness to come along.

    We are hopeful that the Constitutional Studies Group will be able to organsie further events and work on this area in the future. The conference has pointed up some useful themes for further research and exploration. However, its important to note that, as Eoin has said, there were a number of areas of substantial agreement between speakers, despite their very differing backgrounds and disciplines:

    * The Constitution had almost nothing to do with the economic crisis. Changing the Constitution would not have prevented it, and changing it now would not prevent another crash if the same economic conditions were allowed to develop unchecked.

    * There are many, many things that could be done to improve standards of governance in Ireland without the need for constitutional change at all. Eoin’s discussion in his own presentation on freedom of information is one good example.

    * Some of the aspects of our current systems of politics and government that have been criticised are not derived from the constitution but flow from political practices and norms, or particular constitutional theories.

    * Changing the Constitution as a way of responding to yesterday’s crisis would be meaningless, misguided, might create a false sense of security about future crises and would trigger a host of unintended consequences that (as Stephen Kinsella argued very cogently) simply cannot be predicted at the moment.

    * That is not to say that there are areas of the Constitution where reform would not be useful or appropriate, but those changes are needed for other reasons.

  3. Both Eoins. Thanks for the summaries, which for the most part tally with my own impressions. But I would add two correctives:

    1.) While I don’t ‘blame’ the current constitution for the crisis as such (though I would attach some blame to our political institutions), that doesn’t mean that I don’t think there should be constitutional reform. I think there should be — and some pretty fundamental reform too. We’re in a crisis that affects our economy, society, and political system. I find it hard to think of a more appropriate time in our history for radical change and renewal. Our structures are in need of complete overhaul.

    2.) I wouldn’t entirely rule out electoral reform. The point I’ve been trying to make is that electoral reform, in and of itself, is not the panacea; however, there is not reason why it couldn’t be included as part of a general package of reform.

  4. @Eoin O’Malley
    I find it highly regrettable that there are no papers available from this conference. That being so, let us not claim too much for what was said – unless the proceedings were recorded.

    IMO it is easy to say that the Constitution did not “cause” the current crisis. While true, it is not good enough to refuse to examine how we might improve our way of governing ourselves, including proposing changes to the Constitution. Why limit our response to this crisis by such a refusal, even if there are lots of things that can be done short of a constitutional change? If done, will they stay done? Just look at the limiting of the Freedom of Information Act by the powers that be.

    As an example of one issue which has given rise to the current crisis, take the price of building land.

    To what extent has the current crisis been driven by huge increases in the price of land for building land not just houses/apartments but also roads and other infrastructure? These price increases were fuelled by “cheap” credit and competition between some banks – which clearly lost sight of their fiduciary responsibilities, as one group that mobilised the savings of many people.

    To what extent would this excess have been limited had the recommendations of 1970s Kenny Report on the price of building land been implemented?
    In 1971, the then Fianna Fáil government appointed Judge John Kenny to consider, in the interests of the common good, possible measures for
    (a) Controlling the price of land required for housing and other forms of development, and
    (b) Ensuring that all or a substantial part of the increase in the value of land attributable to the decisions and the operations of public authorities… shall be secured for the benefit of the community.

    Then a High Court Judge, Kenny was asked to report following considerable discontent arising from land price increases during the 1960s. If I remember correctly, Judge Kenny was quite expert and knowledgeable on our Constitution and constitutional law.

    Among the reasons put forward for the failure to implement this report’s majority recommendations are they are “unconstitutional”. As far as I know, this has never been tested in any court.

    In fairness, this may be more a question on how people have used the Constitution to prevent change that could have advanced the common good. Would the land cost of the National Roads Authority programme -and perhaps other infrastructure eg. schools, waterworks – been less with Kenny implemented?

    How can citizens can overcome the inertia of those influenced by and/or afraid to take vested interests in cases like this?

    I gather that implementation of the Kenny report is part of Green Party policy and has been part of Labour Party policy. Let us see what emerges.

    For those interested, I raised this issue (in letters printed in the Examiner and Independent on 4 October 2008) within 5 days of the bank guarantee

    My point in these letters (and in the same text published in Business&Finance later that month)was and still is for us to ”limit the scope for excess by government and financial institutions by controlling the price of building as Judge Kenny recommended. If it needs a referendum to copperfasten the constitutionality of any legislation for the measures needed, then this is just as important as another on the Lisbon Treaty.”

    I go further and say that we should not fear changing the Constitution in order to give ourselves a better way of governing ourselves.

    If we are not prepared to consider such change, we have learnt very little from this and previous crises.

  5. ‘Changing the constitution’, or drawing up a new constitution, is a bit vague and general. I’m not sure that too many people who are familiar with the 1937 constitution see any merit in the idea of ditching it and drawing up a new constitution. The reason is not an unreasoning attachment to the status quo but, rather, the absence of any convincing argument to the effect that there is something in the 1937 constitution that can plausibly be blamed for the current economic difficulties or indeed for any of the less positive aspects of Irish politics. What exactly do we want to do that the current constitution prevents us from doing?

    Economic policy-making has gone badly wrong in this country in the past decade. But the same is true in the UK, USA, Spain, Greece, Italy, Portugal, Latvia, Romania, and a number of others – countries with a whole range of different electoral and institutional arrangements. A country that appears to have come through the world economic downturn relatively unscathed is Canada, where the executive dominates the legislature, and where MPs vote solidly along party lines in parliament and also appear to do even more constituency work than their Irish counterparts. That doesn’t mean that any other country adopting Canadian-style institutional arrangements will automatically acquire Canadian levels of prudential governmental performance. What it does suggest is that the behaviour of policy-makers and the expectations of voters are not determined entirely by institutional arrangements.

    When something has gone badly wrong, it’s always tempting to press a few of the nearest buttons – change the constitution, change the electoral system, let’s end party bloc voting in parliament – in the hope that in some unspecified way things will get better. But unless there is some structured argument setting out the precise effects that we expect to follow from a particular change, and why we can expect those effects to follow, then the calls to press a few buttons are akin to suggesting rolling the dice afresh and hoping for better luck next time.

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