The Irish Constitutional Convention completes its work

Irish CC in action

*Declaration of interest: I am the research director of the Convention (in a voluntary capacity).

Last weekend, the Constitutional Convention completed its work.  At its closing dinner last Saturday, the snappy slogan on the menu summed things up well: ‘100 members, 10 meetings, 1 constitution’. With a budget of some €900,000 and a deadline of one year (that ultimately was extended by a further two months), the Convention surpassed all expectations. All eight items on its agenda were dealt with on schedule.  In addition it discussed two other issues, on Dáil reform and economic, social and cultural rights, that the members selected  from the large list of submissions by the general public.  The Table below provides an overview of what the Convention has recommended.

CC tab

It will be some time before we can  properly access the success or otherwise of this Convention — a Convention that in terms of its makeup, its method of operation and its agenda is in many ways a world first.  But here are two points that are worth noting:

  • The eight issues originally set for it by the government — the number and form of which were the source of much criticism — have morphed into no less than 38 specific recommendations for reform, at least 18 of which would require constitutional referendums.
  • The four reports of the Convention that have been discussed to date have resulted in three specific referendum promises by the government, on: same-sex marriage, reducing the voting age to 16, and reducing the age of presidential candidates.

We have yet to see how the government reacts to the remaining reports (that all have to be responded to on a set timetable), and we have yet to see if any of the referendums succeed.  But — to my mind — it seems hard to disagree with the proposition that the Convention has exceeded expectations.  So far, at any rate….

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9 thoughts on “The Irish Constitutional Convention completes its work

  1. @ David F
    “We have yet to see how the government reacts to the remaining reports (that all have to be responded to on a set timetable), ……”

    The government set the timetable and thus the government can vary the timetable.
    The Government response to the Convention’s Report on its review of the Dáil Electoral system was due at the end of December 2013 ie. within 4 months of the Government’s receipt of the relevant report.

    While I can understand a delay of one month, two months without any sign of a response lacks merit.
    Can the Convention be assessed until the whole process is complete, including the Government response?

    Without that final essential part of the Convention process, I remain to be convinced that this Convention has exceeded expectations, as you seem to suggest with your concluding “so far, t any rate”

  2. I have to put my hands up and admit that I did not think the Convention would, or would be allowed to, take advantage of this ‘Any Other Amendments’ opportunity in the way that it did, The recommendations under Topic 9 (Reform of the Dáil) are a bit of a rag-bag, but the intent is clear. I detect perhaps some coaching and guidance from the ‘academic advisers’. However, whether or not this is the case is irrelevant; in this instance the end certainly justifies the means.

    The Government, of course, will seek to kill most, if not all, of the recommendations on Topics 6 & 9. But it will have to make some carefully crafted, anodyne concessions to conceal its intent and its reflexive contempt for the Convention. Prehaps this is what is delaying its response to the recommendations on Topic 6. On Topic 9 it is now up to backbench TDs of all parties and none to make the running. But will they? I think we all know the answer to that

    • Paul,
      With due respects to the Convention’s Steering Committee, the topics discussed during the weekend on Dáil reform (which I attended as an observer) left a lot to be desired.

      In her talk, UCC’s Mary Murphy observed that our Dáil lies at the “weak reactive” side of the categorisation of parliaments. her presentation is here http://www.youtube.com/watch?v=z-jflL_qlnI)

      Just before the weekend meeting concluded around midday on Sunday 2nd Feb,
      Martina O’Connell (one of the 66 citizens chosen by a polling company as a citizen member of the Convention) said that her “concern is in relation to the actual Constitution. A lot of the topics that we have discussed over this weekend, I am not sure of their particular constitutional relevance…I am just wondering how we would be perceived outside, by the general public as to what we’re discussing and its relevance to the Constitution”.
      (see here at about 3.30 http://www.youtube.com/watch?v=7QzC2QiET8E)

      IMO, that citizen got it completely right. The Convention’s session on Dáil Reform was mostly faffing around Dáil Standing Orders.

      In setting out options for Dáil reform, the Steering Committee failed to rise to the challenges set by people such as
      1. UCD’s Dr. Niamh Hardiman who observed
      “Both the policy effectiveness and the democratic legitimacy of the Irish state and governance practices are in question……..But legitimating government activity in the national context requires both responsive and efficient political institutions. On both fronts, we have seen that Irish governance structures are deficient. The net effect is that Ireland’s reflexive learning capacity is low – political actors display a weak ability not only to learn from past mistakes but also to anticipate future adaptive needs and to act on them in a timely manner…Irish political institutions display very poor adaptive efficiency….” in “Changing Irish governance” in Irish governance in Crisis edited by Niamh Hardiman. Manchester. Manchester University Press. 2012.

      2. QUB’s Dr. Muiris MacCarthaigh who found that our leigslature came 29th of 31 OECD Parliaments ranked according to criteria eg.
      – number and size of committees;
      – allocation of committee chairs;
      – use of expert staff;
      – ability to obtain documents;
      – ability to summon Ministers and experts;
      – use of audit and ombudman offices;
      – time spent on annual budget.
      see. House of the Oireachtas, ed Maurice Manning and Muiris MacCarthaigh. Table 3.1 p. 38

      3. TCD’s Miichael Gallagher who outlined the extent to which the Westminster model of government being in and of parliament is not the norm in Europe .
      “The ‘fusion’ of government and parliament, with virtually all ministers simultaneously being TDs, greatly affects the way in which TDs, especially government backbenchers, see their role. Fusion is a characteristic feature of Westminster model countries, and as such is by no means typical of European practice generally. While in Ireland all ministers must be members of parliament, in certain European countries (notably France, the Netherlands, Norway and Sweden) the offices of MP and government minister are incompatible. Whereas in Ireland only two of the approximately 150 ministers since 1922 were not previously MPs before or upon their appointment….the average European figure is 25 per cent. In the Netherlands and Norway around half of all ministers have never been MPs…..In Ireland, certainly as far as government backbenchers are concerned, there is little or no such separation. ”
      The Oireachtas: President and Parliament.” Chap. 7 in Politics in the Republic of Ireland, edited by Michael Gallagher John Coakley. PSAI Press Routledge, 2010.

      This meeting of the Convention did not follow through the earlier vote to have non-parliamentary Ministers which the Convention favoured when it reviewied the Dáil electoral system. (Item 6 above). During the presentations, there was scarcely any mention of any alternative models to the Westminster system and certainly no in- depth description of other ways of forming governments.

      Through the Convention, we could have learnt from other countries which are not influenced by the “Westminster” fusion of government and Parliament. This separation of powers exists, in distinct and different ways, in many countries. It also underlies the structure of the EU, from which we now get so many of our standards and much of our legislation.

      Separating the Dáil from the Government would allow both to enhance their adaptive capability.

      The Constitutional Convention’s failure to consider these aspects of Dáil reform is yet another example of what the late John M. Kelly (Professional of Constitutional Law, author of the standard work on the constitution, TD, Attorney General, Minister) observed ” 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.”

      • Donal,

        Many thanks for such an informative and thought-provoking response. I was simply recording my surprise that the Convention broached the topic of Dáil reform and acknowedging that I got it wrong when I assumed it wouldn’t – or wouldn’t be allowed to. It may have amounted to pfaffing around Dáil Standing Orders, as you put it, but, how ever inadequate it might be, there are now some formal Convention recommendations to which the Government is obliged to respond. It is difficult to predict the precise form of this response; but we can be absolutely certain about its intent.

        Writing shortly after the onset of the Great Recession, Niamh Hardiman observed that, even though much reform was required, then was not the time to tackle it. ‘Ní hé lá na gaoithe lá na scolb’ was her succinct obervation. But the ‘lá na gaoithe’ has long passed and the economic situation has been stabilised. Now is the time to tackle these issues. And, as I keep emphasising, it is a matter primarily for backbench TDs of all parties and none.

  3. I’ve eventually gotten around to making my way through all of the online youtube footage on the Dáil reform meetings ( https://www.youtube.com/user/ConstitutionIe ) and some on the socioeconomic rights segment too (watched the electoral system meetings in full and some others partially last year).

    So some general comments on the process. I thought that the expert panel rather imaginatively guided the convention given the rather constraining terms of reference. A lot was packed into the electoral system meetings, including external ministers, and even the topic of citizen initiatives (something close to my heart). The choice of Dáil reform as one of the two “Any Other Amendments” topics was also an excellent one. So I have to commend the panel for how they guided this process, and pushed against the boundaries, given the rather narrow agenda.

    I suppose there are going to be strengths and weaknesses to every convention format. It seems to me that the existing format seemed to function quite well for some the single-issue topics. The ordinary members seemed quite engaged even for the electoral system discussions. It’s still a big topic, but I suppose just about manageable enough for people to get their heads around over 2/3 weekends with expert input. I thought the presentations on this topic were generally very good. One niggle I had was that the distinction between open and closed lists never seemed to be clearly drawn. A polarity between party-controlled MMP top-up lists and non-party controlled PR-STV would probably have been the impression generated. Closed lists constitute the predominant form of MMP, but there are open lists in a few places though. There was some interest in the scheme of topping up PR-STV with an MMP type list (an open list would be very feasible in those circumstances). Only a small point (and the tight time-frame makes compression of details inevitable, and I suspect PR-STV would have won out anyway).

    A single weekend on Dáil reform was inevitably going to be wholly inadequate. Some of the weaknesses of the format were in evidence. The ordinary members seemed far more subdued than usual with the political members being far more vocal (given they were discussing a system most of them were part of and intimately familiar with that’s not surprising). I suspect even two weekends wouldn’t have been enough to do this topic anywhere near proper justice (again not your fault).

    In electoral system proportionality, we lie somewhere between the UK FPTP system and more properly proportional European list systems. Given we are a Westminster system, I suppose it is reasonable to take a look at the UK House of Commons standing order reforms. But given the sheer size (650) of the Commons and the fairly regular big majorities FPTP gives governments, even if we enthusiastically adopted wholesale their reforms, I suspect they would still never work quite as well even as there (given our much smaller chamber with typically tighter majorities). The presentation by Meg Russell was really good (even if far too short).

    And we do have a constitutional after all. Ideally, we’d also have structural/constitutional reform (perhaps borrowing some mechanisms/structures from places like Germany/Scandinavia). These, again for similar reasons, probably wouldn’t work as well as in those countries. But, maybe if we incorporated the whole panoply of UK-style parliamentary and some Germanic/Nordic structures, everything might still combine to produce something fairly decent. So perhaps not only do we want to change standing orders but also look at the fundamental nature of standing orders in our constitution (as well as other structural things). That was touched upon to some degree in the weekend. It was suggested that constitutional changes be made to the role and election method of the referee of the standing orders (the Ceann Comhairle). Secret ballot election of the CC could be a step forward. It would really only work, though, if the election is genuinely competitive, with multiple competitors from the across the Dáil (the UK system of nominations requiring some support from opposing parties is a good one). Otherwise we may just end up with a government nomination versus an opposition nomination or two, with the government candidate most likely still winning despite secret ballot. Electing the Ceann Comhairle with an open 2/3 supermajority (like in the Icelandic constitutional convention document) does have its advantages. Building CC discretion regarding guillotines into the constitution was a reasonable one. Ideally, though, I think all these types of reforms should be reinforced by constitutionally making standing orders more difficult to change in some way (e.g. perhaps necessitating two absolute Dáil majorities separated by three months, or at least a two-thirds absolute supermajority to instantly change them). If rules are harder to change, then inevitably the referee of those rules takes on more importance. Mention was made of speakers in other countries being able to trigger parliamentary sittings. German/EU practice also allows a third of MPs to do this.

    More than one speaker talked about the “efficiency” versus “scrutiny” spectrum for parliaments. IMO, if we want to push ourselves from the “efficiency” extreme to more in the “scrutiny” direction, then some structural/constitutional changes would perhaps be a somewhat surer way of doing this than just messing about with standing orders. But, anyway, a single weekend for a discussion on Dáil reform is ridiculously short.

    This convention had a very different setup to the Icelandic process. The Icelandic convention, which was elected by PR-STV rather than randomly selected, did produce a very interesting and rather radical final document, with a lot to like about it: http://stjornarskrarfelagid.is/wp-content/uploads/2011/09/Iceland_New_Constitutional_Bill.pdf . Seems pretty much dead at this stage though (perhaps elements will resurface in the future). It’s highly likely that at least some proposals from this convention will be put to referendum and adopted (probably only those with little political reform significance though).

    A lot of reform in Ireland seems to only arise as reluctant response to some scandal/controversy (FoI was a rare exception, but even for that we have the subsequent rowing back,and seeming reluctance of this government to meet its pre-election promises of re-empowering these provisions). The Harry Whelehan controversy lead to the creation of Judicial Appointments Advisory Board (which has turned out to be very weak, and probably makes only marginal difference to our rather political judicial appointments process). Garda intimidation in Donegal in the McBrearty affair led to the creation of Garda Ombudsman Office, which again turned out to be a fairly emasculated body. Maybe the current Garda whistle-blower/surveillance controversy will force it to be finally given adequate powers. It seems the current affair might possibly even lead to the creation of a UK/Northern Ireland-style police authority sitting between the Gardaí/commissioner and the minister. Going on the past form though, it’s likely that any such shiny new body, though we’ll be told it conforms with “international best practice”, will somehow be significantly nobbled in one way or another. It’ll still be good news if one is created. However, to be cynical, it might then only be another Garda controversy in another 10 years that will eventually lead to some government or other finally giving it adequate powers.

    I suspect that this same modus operandi has again been used for this convention. This is essentially a central plank of the government’s response to our huge financial crash (and the public perception that inadequate political structures may have contributed to this). But one has to assume that the government will take on any recommendations in as minimalist a way as possible. Probably a “constitution day” sometime in the final year of the government’s term (for maximum impact) where we get to vote on things like voting age, blasphemy, and how our figurehead presidency is elected.

    Finally, one detail about how the convention was set up bothers me. The 66 ordinary members actually contained a husband and wife. That raised immediate questions in my mind about the random selection process used The IT article last year that described this anomaly used very dodgy statistics to give billion to 1 odds for this occurring. The stats behind the so-called “birthday paradox” (put 30 people into a room and it’s more likely than not that two will share a birthday) mean the actual probability of something like this is far more likely than one might think. Plus, there are several other types of relationships that would equally be noticed, e.g. a mother-daughter pair or two siblings on the convention. A back of the envelope calculation, assuming for each ordinary convention member that there is an average of 10 people whose presence would raise such suspicions, has the maths working out at around 70 to 1 for such an anomaly showing up. Not quite low enough to totally rule out a fluke result. But, certainly, uncomfortably high. The methodology used by the polling company is given here: https://www.constitution.ie/Documents/BehaviourAndAttitudes.pdf . The type of stratified sampling used (if safeguards aren’t put in place) do make the chance of this happening even likelier. But they were already screening people according to quotas for age, socioeconomic status, working status and region. It just seems like poor methodology to me to then not screen out having two people from the very same household. I honestly believe that that’s the most likely explanation for this. However, if one is randomly selecting people for something like this, then it’s not good enough that the process is above-board, it has to be clearly seen to be so. Otherwise, it’ll just be putting fuel on the fire for those who don’t like the conclusions of the convention and want to buy into conspiracy theories.

    • Finbar,
      You are certainly dedicated.
      I simply focused on those Convention sessions that I felt would consider checks and balances in our political system. I also attended a pre-convention meeting which the Chairman held with “civil society” groups and the two public meetings which the Convention held in Dublin – to advocate fixing some checks and balances in the Constitution eg. Swedish-style Freedom of Information.

      As I regard our PR-STV multi-seat electoral system as a good example of such a check and balance, I am pleased with the outcome of the Convention’s consideration of this topic. ( I attended, as an observer, the second Convention session which reviewed the Dáil electoral system in June 2013).

      I was also surpised and very pleased that the Convention voted in favour of direct democracy/citizens’ initiative – an issue on which I made three written submissions

      Frankly, I think that fixing Standing Orders in the Constitution would be far too rigid. It could so easily limit the possibility for adapation and change.

      “That was touched upon to some degree in the weekend. It was suggested that constitutional changes be made to the role and election method of the referee of the standing orders (the Ceann Comhairle). Secret ballot election of the CC could be a step forward. It would really only work, though, if the election is genuinely competitive, with multiple competitors from the across the Dáil (the UK system of nominations requiring some support from opposing parties is a good one).”

      My reading of Article 15.9.1 is that the Ceann Comhairle could be elected by secret ballot, if that is what the Dáil wanted to do. Kelly’s Irish Constitution (4th Edition, 2003) cite case law to point out that this is among the “provisions that form part in their own right of the structure of the separation of f powers, which, in general, vests both Houses with exclusive competence to regulate their own affairs….” (par. 4.2.126 . p.291-292).

      As you suggest, it is a matter of political culture.

      The major trouble is that our Constitution does not have a separation of powers between the Government and the Legislature. They are completely fused. In practice, the government must control the Dáil or else it ceases to be the Government.

      Although it had earlier voted in favour of non-parliamentary Ministers, the Constitutional Convention did not consider this during the Dáil reform session,

      On this issue, the Convention let us down, as it did not explore options for Dáil reform options based on a complete separation of powers between the Government and the Legislature – as I pointed out above.

      This is very strange omission, given that EU institutions are based on a complete separation of powers. So too is our system of local government, with its reserved functions. The County Management system was a non-UK innovation in governance introduced in response to corruption.

      This failure by the Convention Steering Committee and its Advisers to look beyond Westminster is symptomatic of the way our political and administrative establishment now goes about its work – ie. “keeping old British structures ticking over”

      The trouble is that they do not recognise the implications of the failure of this approach, which manifested itself in the need for the EU-ECB-IMF support programme.

      If we want to change the results, we have to change the approach.

    • @Donal
      I was also pleased to see the topic of citizen initiatives on the programme and the high level of support (though there was almost no coverage of this anywhere in the media).

      On standing orders, I suppose I’d like to see some general overarching principles/guidelines (not too concrete) in the constitution, e.g. proportionate allocation of parliamentary time to the various Dáil groupings. There’s currently quite a large group of independent TDs in the Dáil (and if current opinion poll trends continue there will probably quite a number after the next GE). They live somewhat on sufferance as regards speaking rights (wouldn’t be hard for a government to change standing orders to curb these for the “technical group”). I’d feel a general constitutional principle of equal resources/time for Dáil groups wouldn’t be a bad idea (plus some flexible definition of what is a Dáil grouping, e.g. any 5 TDs or more who register themselves as such with the Ceann Comhairle).

      In an ideal world (as I’ve said here previously), a rather radical scheme where Dáil procedures (or any of the legislation regulating the running of the Dáil, e.g. TDs’ pay) could only be changed by either a Dáil supermajority (say 75%) or a referendum triggered by a 25% Dáil qualified minority (with such a referendum only allowed rather infrequently, maybe once every 2 years or so) could lead to some rather interesting dynamics. Giving the rules semi-constitutional status could be a good thing given some mechanism for a minority to trigger changes also. Simply requiring a supermajority for change would probably tend alright to lock things in too tightly.

      However, I’d see few downsides to building in a delay (perhaps 3 months) to changing standing orders (unless perhaps a change could get immediate two-thirds support) and requiring an absolute majority even then (make changing the rules more of a big deal and require the government to troop in all its TDs). The government could then still ultimately alter the procedures in whatever way it wanted. This would just cut out short-term chopping and changing of rules.

      Coupled with some constitutional strengthening and clarification of the Ceann Comhairle’s role and a reformed election procedure (majority, if not consensus, legal opinion seems to be that secret ballot is allowable under the present constitution, though perhaps it would be nice if that was also underpinned by the constitution, though there are advantages too to open election by a supermajority) would, I think, lead to some improvements.

      Anyway, if this government had any intention of reforms in this direction, the ideal time to have introduced them would have been in the Seanad abolition bill (the inclusion of such reforms would probably have even edged the referendum into passing).

  4. The Reform Group recommended a new preamble to the constitution and supplied a suggested version. It also recommended the Irish language is made the equal official language, as in the first constitution, Irish being the national language of the state. These subjects were not addressed. I attended the seminar yesterday and pointed this out to David Farrell.
    Robin Bury

  5. Pingback: Conventionally Speaking | Broadsheet.ie

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