Constitutional Reform in Ireland

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C ONSTITUTIONAL R EFORM IN IRELAND

Legal Memorandum

February 2014


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Constitutional Reform in Ireland, February 2014


Executive Summary

The purpose of this memorandum is to provide an overview of Irelandsongoing constitutional reform process. Ireland has had two separate constitutionssince it obtained independence from United Kingdom (UK) in 1921. The UKParliament passed the first constitution in 1922. Prime Minister amon de Valeraestablished a special review committee to examine the 1922 Constitution section by section. This Committee recommended keeping some aspects of the 1922Constitution and recommended changes for other aspects, such as replacing the position of governor-general with the position of president. In a simple majorityreferendum, the citizens of Ireland voted to pass the new Constitution in 1937.

Over the years, the 1937 Constitution has been amended many times.However, recent economic and social changes have prompted the Irish governmenand political parties to begin constitutional reform in Ireland. Despite multipleamendments, the 1937 Constitution left some human rights issues unresolved. Forinstance, when Ireland ratifies an international treaty, such as one that addresseshuman rights, the 1937 Constitution requires additional legislation before thosetreaties become domestic law. As a result, Ireland does not automaticallyimplement its human rights treaty obligations. Other unresolved human rightsissues in the 1937 Constitution include the equality of women and childrensrights.

The current constitutional reform process began in 2009 when theParliament Joint Committee on the Constitution issued a report proposing theestablishment of a citizens assembly to consider the question of electoral reform.This initiative received support from some political parties. In 2010, the Fine Gae party also called for a citizens assembly to consider electoral reform. By 2011,the main political parties platforms included proposals for constitutional reform.

In 2012, the Irish Parliament established a Convention on the Constitution(Convention) to consider reform proposals and provide recommendations toParliament. Parliament mandated that the Convention address eight specificreform proposals: (1) reducing the presidential term of office to five years andaligning it with local and European elections; (2) reducing the voting age to 17; (3reviewing the Dil electoral system; (4) granting Irish citizens residing outside ofIreland the right to vote in presidential elections; (5) adding a provision for same-sex marriage; (6) amending the clause on the role of women in the home and


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encouraging greater womens participation in public life; (7) increasing womens participation in politics; and (8) removing the offence of blasphemy from theConstitution.

The 100-delegate Convention includes Members of the Parliament,representatives from Northern Ireland, and 66 Irish citizens that represent thegeneral population. The Convention held meetings over a period of one year,which ended in December 2013. It continues to release reports outlining itsrecommendations. The Prime Minister and his Cabinet will consider therecommendations and decide which proposals will be subject to referendumswithin four months of receiving the recommendations.

The Convention is a highly collaborative effort. Although excluded fromthe Conventions deliberations, public interest groups have had opportunities to present their viewpoints through live presentations and online report submissions.Furthermore, after a lack of transparency in earlier stages, the Conventions latermeetings were streamed online and its reports are publicly available.

However, some concerns remain. Frequent referendums may lead toreferendum fatigue among the voters. Some critics believe that individualamendments may not go far enough to address systemic issues. Other critics claimthat single proposals that would be considered and voted upon separately may becomparatively easier to pass than adopting an entirely new constitution. Howeverif individual reform proposals fail to garner enough public support, the future ofthose reforms would remain uncertain. The Irish government has not announcedits plan for those reforms that do not pass public referendums. Additionally, some public interest groups believe that the government did not engage the publicenough during the formation stages of the Convention. The interest groups believthat the government should educate the public about the process and seek greater publics input. In contrast, others believe that too much public input may inhibit thConventions ability to adequately consider each proposal.

The Irish constitutional reform process provides lessons for statesconsidering similar efforts. The Convention and its processes, while unique toIrelands history and culture, provide an example of 21st century constitutionalreform. Each proposal has been considered individually and will be voted upon inseparate referendums, a format that prevents controversial provisions fromdelaying much-needed reform on other issues. The government has alreadyscheduled votes on several reform efforts for 2015.


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T ABLE OF C ONTENTS

Statement of Purpose 1

Introduction 1

Irelands Path Towards Constitutional Reform 2 The Irish Free State Constitution Act of 1922 2The 1937 Constitution 4The Years of Change 7

The Convention on the Constitution 10

Public Participation in the Reform Process 14

Topics of Reform and Reform Proposals 16 Topics of Reform: The Conventions Differing Approaches 17 Additional Possible Reform Proposals 19

Challenges to Reform 22 Referendum Fatigue 22 Individual Amendments Versus a New Constitution 23 Public Input 23 Failed Referendums 25

Anticipated Next Steps 25

Lessons Learned from Irelands Constitutional Reform Process 26 Consideration of Individual Reform Proposals 27The Conventions Diversity 27 Public Input and Transparency 28

Conclusion 29

Annex A: Major Political Parties in Ireland 30


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Statement of Purpose

The purpose of this memorandum is to provide an overview of Irelandsongoing constitutional reform process.

Introduction

Constitutions are created and revised in complex and distinctive historicalcontexts closely intertwined with the national identity of people.1 Irelands twoconstitutions, for instance, have been shaped by external and internal conflicts.Although the 1937 Constitution has served Ireland for many years, recenteconomic and societal changes have driven the impetus for constitutional reform.By 2010, the idea of constitutional reform gained enough momentum that Irelandtwo leading political parties included constitutional reform as part of their party platforms. When these political parties formed a coalition government in 2011,they included constitutional reform in the 2011-2016 Programme forGovernment. One year later, the Irish Parliament approved the establishment ofthe Convention on the Constitution to lead the constitutional reform process. Ofthe 100-person body, 66 Convention members are Irish citizens not working in thegovernment.

Although Irelands constitutional reform process is still ongoing, the Irish process contains lessons to be learned by other states engaging in constitutionalreform. Irelands constitutional reform process may not necessarily translate intoconstitutional reform in Bosnia and Herzegovina (BiH); nevertheless,organizations and individuals interested in constitutional reform can learn fromcommon challenges of Irelands constitutional reform process.2 As oneconstitutional law scholar observed, Irelands constitutional reform process has become a microcosm for assessing the future of constitutionalism around theworld.3 Because problems that seem unique are often rather typical,4 thismemorandum provides background on the Irish constitutional experience for civilsociety organizations and independent policy advisors in developing options,1 Vicki C. Jackson, Symposium,Comparative Constitutional Law: Methodological Challenges in ComparativeConstitutional Law, 28 PENNSTATE I NTERNATIONALLAW R EVIEW 319, 324, 325 (2010).2 SeeMark Tushnet,Constitution-Making: An Introduction, 91 TEXASLAW R EVIEW 1983, 2013 (2013),available athttp://http://www.texaslrev.com/wp-content/uploads/Tushnet.pdf.3 Francis X. Beytagh, CONSTITUTIONALISM INCONTEMPORARYIRELAND: A N AMERICANPERSPECTIVEx (1997).4 Mark Tushnet,Constitution-Making: An Introduction, 91 TEXASLAW R EVIEW 1983, 2013 (2013),available athttp://http://www.texaslrev.com/wp-content/uploads/Tushnet.pdf.


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opportunities, and potential frameworks for constitutional reform in BiH.Specifically, this memorandum surveys how constitutional reform has progressedin Ireland and the challenges the reform process has faced. It also examinesIrelands lessons learned from the constitutional reform process, and the Irishgovernments anticipated next steps in the process.

Irelands Path Towards Constitutional Reform

Ireland has had two separate constitutions since it obtained independencefrom the United Kingdom (UK) in 1921.5 The UK Parliament passed Irelandsfirst constitution, the Irish Free State Constitution, in 1922. The 1922 Constitutionremained in effect for only 15 years.6 After the Irish civil war ended in 1923,Ireland gained its independence from the UK and decided to draft a newconstitution. In 1937, the people of the Republic of Ireland approved a secondconstitution. Although it has been amended nearly two dozen times since itsadoption, the 1937 Constitution remains in effect today. In the past several years,however, the Irish government has initiated a movement to reform the 1937Constitution and make it more attuned to the 21st century. This section providesthe historical background behind the current constitutional reform process.

The Irish Free State Constitution Act of 1922

The Irish Free State Constitution was enacted in 1922 following the end ofthe Irish War for Independence and the signing of the Anglo-Irish Treaty of 1921(Anglo-Irish Treaty).7 Although the Anglo-Irish Treaty served as the impetus forthe creation of the Irish Free State and the 1922 Constitution,8 it did not receivewide support from the general population due to both procedural and substantiveissues.9

5 Hugh OFlaherty, Essay, An Introduction to the Relationship Between European Community Law and National Law in Ireland , 20 FORDHAMI NTERNATIONALLAW JOURNAL 1151, 1151 (1997),available athttp://http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1537&context=ilj.6 Raymond J. Friel, Brown v. Board of Education: An Irish Perspective: The Better Angels of Our Nature, 43WASHBURNLAW JOURNAL 225, 23233 (2004).7 IRISHFREESTATE CONST. (1922),available at http://www.irishstatutebook.ie/1922/en/act/pub/0001/print.html;Richard S. Kay,Comparative Constitutional Fundamentals, 6 CONNECTICUTJOURNAL OFI NTERNATIONALLAW 445, 455 (1991).8 Anglo-Irish Treaty (Great Britain and Ireland, 1921),available athttp://treaty.nationalarchives.ie/document-gallery/anglo-irish-treaty-6-december-1921/.9 Sarah Frazier, Note, Liberty of Expression in Ireland and the Need for a Constitutional Law of Defamation, 32VANDERBILTJOURNAL OFTRANSNATIONALLAW 391, 395, 396 (1999).


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The Irish populations procedural dissatisfaction stemmed from the 1922Constitutions parallel enactment process. Both the Irish Parliament and theBritish Parliament passed statutes enacting the 1922 Constitution.10 As a hybridlegal document, the 1922 Constitution simultaneously served as the foundationaldocument of the Irish Free State and as an Act of British Parliament.11 This procedure increased rather than decreased the existing tension between Ireland andthe UK because each state viewed the statute enacted by its respective Parliamentas supreme to the other states statute.12 The Irish government believed that it hadcreated its own state, but the British viewed the Free State of Ireland as one of itsdominions, similar to Canada or Australia.13

The Irish population also objected to substantive provisions within the 1922Constitution. The Irish Parliament had wanted the Irish Free State to beautonomous from Britain, but the 1922 Constitution contained an oath to theCrown and the procedural provisions of a dominion.14 Additionally, each statuteenacting the 1922 Constitution included a repugnancy clause that voided anynew law passed by the Irish Parliament that was inconsistent with the Anglo-IrishTreaty.15 As a result, the repugnancy clause limited Irelands autonomy by notallowing Ireland to freely amend its constitutional provisions involving the Anglo-Irish Treaty.16 For instance, a provision within the Anglo-Irish Treaty allowed thecounties in Northern Ireland to remain under UK control.17

The 1922 Constitutions enactment ultimately instigated a civil war inIreland between the Anglo-Irish Treatys supporters and its detractors.18 Thisconflict divided Ireland into two parts: Northern Ireland, which would remainwithin the UK as a self-governing entity, and southern Ireland, which would leave

10 Thomas Mohr,The Statute of Westminster, 1931: An Irish Perspective, 31 LAW ANDHISTORYR EVIEW 749, 763(2013).11 Patrick Hanafin,Constitutive Fiction: Postcolonial Constitutionalism in Ireland , 20 PENNSYLVANIASTATEI NTERNATIONALLAW R EVIEW 339, 352 (2002).12 Thomas Mohr,The Statute of Westminster, 1931: An Irish Perspective, 31 LAW ANDHISTORYR EVIEW 749, 764(2013).13 Thomas Mohr,The Statute of Westminster, 1931: An Irish Perspective, 31 LAW ANDHISTORYR EVIEW 749, 764(2013).14

Sarah Frazier, Note, Liberty of Expression in Ireland and the Need for a Constitutional Law of Defamation, 32VANDERBILTJOURNAL OFTRANSNATIONALLAW 391, 396-97 (1999).15 Thomas Mohr,The Statute of Westminster, 1931: An Irish Perspective, 31 LAW ANDHISTORYR EVIEW 749, 763(2013).16 SeeRaymond J. Friel, Brown v. Board of Education: An Irish Perspective: The Better Angels of Our Nature, 43WASHBURNLAW JOURNAL 225, 232 (2004). 17 Sarah Frazier, Note, Liberty of Expression in Ireland and the Need for a Constitutional Law of Defamation, 32VANDERBILTJOURNAL OFTRANSNATIONALLAW 391, 395, 396 (1999).18 Raymond J. Friel, Brown v. Board of Education: An Irish Perspective: The Better Angels of Our Nature, 43WASHBURNLAW JOURNAL 225, 232 (2004).


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the UK but retain governmental ties as a dominion, similar to Canada andAustralias connection to the UK.19

As these events were unfolding, however, the British Parliament passed theStatute of Westminster of 1931,20 which permitted dominions to amend or repealany British statute that applied to them.21 For Ireland, this meant it could repealthe 1922 Constitution and adopt a new one.22

The 1937 Constitution

The 1937 Constitution,23 known in Gaelic as Bunreacht na hireann, wasthe first constitution ever adopted by a popular vote.24 The drafting process beganin 1934, when Prime Minister amon de Valera established a special reviewcommittee to examine the 1922 Constitution section by section.25 The committeeincluded the Legal Adviser at the Department of Foreign Affairs, the LegalAssistant to the Attorney General, the Assistant Secretary in the Department of thePresident of the Executive Council, and the Secretary of the Department ofJustice.26 Although it recommended that the new constitution retain thefundamental rights provisions from the 1922 Constitution, the committee alsosuggested a number of specific changes.27 For instance, the committeerecommended creating the position of president to replace the position of

19 Raymond J. Friel, Brown v. Board of Education: An Irish Perspective: The Better Angels of Our Nature, 43WASHBURNLAW JOURNAL 225, 233 (2004).20 Statute of Westminster (United Kingdom, 1931),available athttp://www.legislation.gov.uk/ukpga/1931/4/pdfs/ukpga_19310004_en.pdf.21 Raymond J. Friel, Brown v. Board of Education: An Irish Perspective: The Better Angels of Our Nature, 43WASHBURNLAW JOURNAL 225, 233 (2004).22 Raymond J. Friel, Brown v. Board of Education: An Irish Perspective: The Better Angels of Our Nature, 43WASHBURNLAW JOURNAL 225, 233 n.39 (2004).23 IRELANDCONST. (1937),available athttps://www.constitution.ie/Documents/Bhunreacht_na_hEireann_web.pdf.24 Hon. Gerard Hogan,The 1937 Constitution, Address to the Constitutional Convention, THECONVENTION ON THECONSTITUTION, 2 (Dec. 1, 2012),available at http://www.constitution.ie/AttachmentDownload.ashx?mid=d0e7d26f-283e-e211-a5a0-005056a32ee4.25

Hon. Gerard Hogan,The 1937 Constitution, Address to the Constitutional Convention, THECONVENTION ON THECONSTITUTION, 2 (Dec. 1, 2012),available at http://www.constitution.ie/AttachmentDownload.ashx?mid=d0e7d26f-283e-e211-a5a0-005056a32ee4.26 Hon. Mrs. Justice Susan Denham, Some Thoughts on the Constitution of Ireland at 75, 6 (Jun. 28, 2012),available at http://www.supremecourt.ie/SupremeCourt/sclibrary3.nsf/(WebFiles)/5AB5F205384E7EEF80257B27003C2768/$FILE/Some%20thoughts%20on%20the%20Constitution%20of%20Ireland%20at%2075.pdf.27 Hon. Gerard Hogan,The 1937 Constitution, Address to the Constitutional Convention, THECONVENTION ON THECONSTITUTION, 2 (Dec. 1, 2012),available at http://www.constitution.ie/AttachmentDownload.ashx?mid=d0e7d26f-283e-e211-a5a0-005056a32ee4.


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status of a Directive Principle.36 The difference between a right and a DirectivePrinciple is that the right carries a legal remedy where a Directive Principle is aguiding principle.37

The 1937 Constitution contains several provisions addressing governance.38 Article 5 proclaims that Ireland is a sovereign, independent, democratic state.39 Article 6 establishes that all the powers of government derive from the people.40 Article 12 provides for the position of President of Ireland and Article 13 specifiesthe Presidents powers.41 Article 15 creates the Parliament, which consists of aHouse of Representatives, the Dil ireann, and a Senate, Seanad ireann.42 Article 28 creates the Executive branch, allows the President to appoint seven to 1ministers, and restricts the Executive Branch to acting consistent with theConstitution.43 Article 34 establishes independent courts.44

The 1937 Constitution also provides for an amendment process. It requiresall amendments to be approved through popular referendum and sets forth thefollowing amendment procedure: (1) the House of Representatives initiates a proposal for an amendment;45 (2) the House of Representatives and the Senate passthe proposal, which can only contain one amendment;46 (3) the President then signsthe amendment if he/she is satisfied with the proposal;47 and (3) every amendment proposal is submitted to a popular referendum, which requires a majority vote forapproval.48

Because the Constitution is the basic law of Ireland, any changes require areferendum in which citizens over the age of 18 are eligible to participate.49 The

36 Thomas Murray,Credit and Constitution-Making, Irish Style, U NIVERSITYCOLLEGEDUBLIN, 12 (2012),availableat http://historyhub.ie/wp-content/files_mf/1364570578Tom_Murray_Credit_and_Constitution2.pdf.37 Thomas Murray,Credit and Constitution-Making, Irish Style, U NIVERSITYCOLLEGEDUBLIN, 12 (2012),availableat http://historyhub.ie/wp-content/files_mf/1364570578Tom_Murray_Credit_and_Constitution2.pdf.38 IRELANDCONST. (1937).39 IRELANDCONST. art. 5 (1937).40 IRELANDCONST. art. 6 (1937).41

IRELANDCONST. arts. 12-13 (1937).42 IRELANDCONST. art. 15(1) (1937).43 IRELANDCONST. art. 28 (1937).44 IRELANDCONST. art. 34 (1937).45 IRELANDCONST. art. 46(2) (1937).46 IRELANDCONST. art. 46(2), 46(4) (1937).47 IRELANDCONST. art. 46(5) (1937).48 IRELANDCONST. art. 47(1) (1937).49 Department of the Taoiseach,Constitution of Ireland (last visited Jan. 13, 2014),available at http://www.taoiseach.gov.ie/eng/Historical_Information/The_Constitution/.


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first constitutional referendum occurred on July 1, 1937.50 Over 685,000 citizensvoted in favor of the referendum and approximately 527,000 citizens did notapprove the referendum.51 As a result of a majority vote in favor, the Constitution passed the referendum.52

Although the differences between the 1922 and the 1937 constitutions primarily related to the issues of Irelands sovereignty in relation to the UK ratherthan fundamental rights, internal governance, or the rule of law,53 enacting a newconstitution was an important step in further shaping Irelands sovereign identity.It was a visible outward symbol of nation-building, something to set Ireland aparfrom its colonial past.54 As such, the 1937 Constitution was a validation ofvalues established over fifteen years of Irish independence.55

The Years of Change

Over the last several decades, Ireland has seen many economic and socialchanges. For instance, Ireland joined the European Union (EU) in 1973.56 It alsoachieved a peaceful settlement to the conflict in Northern Ireland, which wasaccompanied by a period of great economic prosperity.57 Recently, however, this period ended abruptly with a sudden dramatic collapse.58 In addition to theeconomic turbulence, Ireland has undergone social changes. In order to adapt to

50 Department of the Environment, Community and Local Government, Referendum Results: 1937-2012, 16 (lastvisited Jan. 13, 2014),available at http://www.environ.ie/en/Publications/LocalGovernment/Voting/FileDownLoad,1894,en.pdf.51 Department of the Environment, Community and Local Government, Referendum Results: 1937-2012, 16 (lastvisited Jan. 13, 2014),available at http://www.environ.ie/en/Publications/LocalGovernment/Voting/FileDownLoad,1894,en.pdf.52 Department of the Taoiseach,Constitution of Ireland (last visited Jan. 13, 2014),available at http://www.taoiseach.gov.ie/eng/Historical_Information/The_Constitution/.53 Hugh OFlaherty, Essay, An Introduction to the Relationship Between European Community Law and National Law in Ireland , 20 FORDHAMI NTERNATIONALLAW JOURNAL 1151, 1151 (1997),available athttp://http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1537&context=ilj.54 Hon. Mrs. Justice Susan Denham, Chief Justice,Some Thoughts on the Constitution of Ireland , THESUPREMECOURT OFIRELAND, 12 (June 28, 2012),available at http://www.supremecourt.ie/SupremeCourt/sclibrary3.nsf/(WebFiles)/5AB5F205384E7EEF80257B27003C2768/$FILE/Some%20thoughts%20on%20the%20Constitution%20of%20Ireland%20at%2075.pdf.55 Hugh OFlaherty, Essay, An Introduction to the Relationship Between European Community Law and National Law in Ireland , 20 FORDHAMI NTERNATIONALLAW JOURNAL 1151, 1151 (1997),available athttp://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1537&context=ilj.56 European Commission, Ireland in the EU (Aug. 17, 2013),available athttp://ec.europa.eu/ireland/ireland_in_the_eu/index1_en.htm.57 William Binchy,The Irish Legal System: An Introduction, 11 LEGALI NFORMATIONMANAGEMENT 151, 151(2011).58 William Binchy,The Irish Legal System: An Introduction, 11 LEGALI NFORMATIONMANAGEMENT 151, 151(2011).


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these social and economic changes, the 1937 Constitution has been amendedmultiple times.59

Ireland has amended its constitution over 25 times since 1937, mostly withinthe last 30 years.60 In the first 35 years since the 1937 Constitutions enactment,there were only two amendments.61 One amendment allowed the state to institute astate of emergency to protect the publics safety during a time of war or armedrebellion.62 To clarify portions of the Constitution, the second amendmentaddressed a range of articles.63 During the 1970s and 1980s, there were nineamendments, two of which related to Irelands membership in the EU.64 Otheramendments reflected changing values in the Irish society, such as the right to votefor certain non-Irish citizens who have not been legally disqualified and are incompliance with the provisions in the law relating to Dil elections.65 Theamendments also reduced the voting age from 21 to 18, removed the special position of the Catholic Church, and created new policies relating to adoption andthe protection of unborn children.66

The pace of amendments increased in the 1990s and into the newmillennium. Many of the amendments arose from Irelands new status as an EUMember State. Others reflected further change in social values, including the passage of a divorce referendum; the removal of the death penalty; and the GoodFriday Agreement, which was a major development in the Northern Ireland peace process.67 As Prime Minister Enda Kenny has argued, these amendmentsdemonstrate that as the pace of Irish life increasesand values of society with

59 IRELANDCONST. (1937).60 Department of the Taoiseach,Constitution of Ireland (last visited Jan. 12, 2014),available athttp://www.taoiseach.gov.ie/eng/Historical_Information/The_Constitution/. 61 Department of the Taoiseach,Constitution of Ireland (last visited Jan. 12, 2014),available athttp://www.taoiseach.gov.ie/eng/Historical_Information/The_Constitution/. 62 Department of the Taoiseach,Constitution of Ireland (last visited Jan. 12, 2014),available athttp://www.taoiseach.gov.ie/eng/Historical_Information/The_Constitution/.63 Department of the Taoiseach,Constitution of Ireland (last visited Jan. 12, 2014),available athttp://www.taoiseach.gov.ie/eng/Historical_Information/The_Constitution/. 64 Department of the Taoiseach,Constitution of Ireland (last visited Jan. 12, 2014),available athttp://www.taoiseach.gov.ie/eng/Historical_Information/The_Constitution/. 65 Department of the Taoiseach,Constitution of Ireland (last visited Jan. 12, 2014),available athttp://www.taoiseach.gov.ie/eng/Historical_Information/The_Constitution/. 66 Department of the Taoiseach,Constitution of Ireland (last visited Jan. 12, 2014),available athttp://www.taoiseach.gov.ie/eng/Historical_Information/The_Constitution/. 67 Taoiseach, Mr. Enda Kenny, T.D,Speech at the Launch of Constitutional Convention, THECONVENTION ON THECONSTITUTION, 1-2 (Dec. 1, 2012),available at http://www.constitution.ie/AttachmentDownload.ashx?mid=f02defe5-583d-e211-a5a0-005056a32ee4.


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itthere is a need more than ever to keep our Constitution under review, to keep irelevant and inspiring.68

For each constitutional amendment that passed, other potential issues haveremained unresolved. Critics have pointed out several unresolved constitutionalissues, including many human rights issues, such as the non-incorporation oftreaties into domestic law, the equality of women, and childrens rights.69 Forinstance, some criticize Ireland for not immediately implementing its human rightstreaty obligations. When Ireland ratifies a treaty, the 1937 Constitution requiresadditional legislation before international treaties become domestic law.70 As aresult, Ireland does not automatically implement its human rights treatyobligations.71

Additionally, Article 41.2 has been criticized as treating women as inferiorto men.72 Article 41.2 provides that the State recognizes that by her life withinthe home, woman gives to the State a support without which the common goodcannot be achieved.73 Critics believe this provision is sexist, male-oriented, and promotes a stereotype, inconsistent with the United Nations Convention on theElimination of Discrimination Against Women, that women are homemakers.74 Other critics disapprove of the Constitutions silence with regard to the rights ofchildren, and they believe that it has negatively impacted government policies andsocial work practices.75

Against this backdrop of economic challenges and societal changes, the political consensus for constitutional reform has been steadily increasing. Thereports of the Joint Committees of the Parliament in 1967, the 1996 ConstitutionReview Group, the 1998 All-Party Committee on the Constitution, and the Joint

68 Taoiseach, Mr. Enda Kenny, T.D,Speech at the Launch of Constitutional Convention, THECONVENTION ON THECONSTITUTION, 2 (Dec. 1, 2012),available at http://www.constitution.ie/AttachmentDownload.ashx?mid=f02defe5-583d-e211-a5a0-005056a32ee4.69 Maurice Manning,The Constitution: Human Rights Challenges, IRISHHUMANR IGHTSCOMMISSION, 3-6 (Jun. 30,2012),available at http://www.ihrc.ie/download/pdf/dr_maurice_manning_ihrc_president_address_on_constitution_ucd_school_of_law _30_june_2012.pdf.70

IRELANDCONST. art. 29(6) (1937).71 Maurice Manning,The Constitution: Human Rights Challenges, IRISHHUMANR IGHTSCOMMISSION, 3 (June 30,2012).72 Maurice Manning,The Constitution: Human Rights Challenges, IRISHHUMANR IGHTSCOMMISSION, 5 (June 30,2012).73 IRELANDCONST. art. 41(2) (1937)74 Maurice Manning,The Constitution: Human Rights Challenges, IRISHHUMANR IGHTSCOMMISSION, 5 (June 30,2012).75 Maurice Manning,The Constitution: Human Rights Challenges, IRISHHUMANR IGHTSCOMMISSION, 6 (June 30,2012).


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Committee on the Constitution preceding the 2011 general election alldemonstrated an interest in constitutional reform.76 In 2011, the government madea commitment to constitutional reform as opposition parties, and many civilsociety groups indicated that they support change to the Constitution.77

The Convention on the Constitution

These economic and societal changes and the support for constitutionalreform culminated in the creation of the Convention on the Constitution in 2012.The Conventions origins date back to late 2009, when the Parliaments JointCommittee on the Constitution issued a report proposing the establishment of acitizens assembly to consider the question of electoral reform.78 These effortscoincided with a major policy review by the leader of Fine Gael, Irelands thenlargest opposition party.79 Fine Gaels March 2010 proposal also called for acitizens assembly to consider electoral reform.80

For the February 2011 general election, the main political parties platformsincluded proposals for constitutional reform.81 In addition to the creation of acitizens assembly, Fine Gael promised to hold a Constitution Day.82 This wouldallow the voters to have an opportunity to consider making changes to theConstitution with respect to state institutions, such as the executive, the Dil, the presidency, and the judiciary.83

76 David M. Farrell,The 2013 Irish Constitutional Convention: A Bold Step or a Damp Squib?, Apr. 3, 2013, draftchapter for inclusion in COMPARATIVER EFLECTIONS ON75 YEARS OF THEIRISHCONSTITUTION, 2 (2013),availableat http://www.openpolitics.ro/wp-content/uploads/UCD_Mar13_final1.pdf.77 Chairman, Mr. Tom Arnold,The Inaugural Meeting of the Convention on the Constitution, THECONVENTION ONTHECONSTITUTION, 4 (Dec. 1, 2012),available at http://www.constitution.ie/AttachmentDownload.ashx?mid=30a2b070-563d-e211-a5a0-005056a32ee4.78 David M. Farrell,The 2013 Irish Constitutional Convention: A Bold Step or a Damp Squib?, Apr. 3, 2013, draftchapter for inclusion in COMPARATIVER EFLECTIONS ON75 YEARS OF THEIRISHCONSTITUTION, 2 (2013),availableat http://www.openpolitics.ro/wp-content/uploads/UCD_Mar13_final1.pdf.79 David M. Farrell,The 2013 Irish Constitutional Convention: A Bold Step or a Damp Squib?, Apr. 3, 2013, draftchapter for inclusion in COMPARATIVER EFLECTIONS ON75 YEARS OF THEIRISHCONSTITUTION, 2 (2013),availableat http://www.openpolitics.ro/wp-content/uploads/UCD_Mar13_final1.pdf.80 David M. Farrell,The 2013 Irish Constitutional Convention: A Bold Step or a Damp Squib?, Apr. 3, 2013, draftchapter for inclusion in COMPARATIVER EFLECTIONS ON75 YEARS OF THEIRISHCONSTITUTION, 3 (2013),availableat http://www.openpolitics.ro/wp-content/uploads/UCD_Mar13_final1.pdf.81 Noel Whelan,Constitutional Convention Will Have Its Remit Severely Pruned , IRISHTIMES, Feb. 25, 2012,available at archive.is/kFDdb.82 Noel Whelan,Constitutional Convention Will Have Its Remit Severely Pruned , IRISHTIMES, Feb. 25, 2012,available at archive.is/kFDdb.83 Noel Whelan,Constitutional Convention Will Have Its Remit Severely Pruned , IRISHTIMES, Feb. 25, 2012,available at archive.is/kFDdb.


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The platform of the second largest party, the Labour Party, went even furtherin pushing for Irish citizens involvement in the constitutional reform process. It proposed a constitutional convention consisting of 30 members of the Parliament,30 members from civil society organisations and other people with relevant legaor academic expertise and 30 ordinary citizens chosen by lot.84 The partys platform promised these individuals would review the Constitution and draft areformed one within one year, which suggested that an entirely new constitutioncould be written.85

When Fine Gael and the Labour Party formed a coalition government in2011,86 a variation of their respective proposals for constitutional change became part of the so-called Programme for Government.87 In this programme, titledGovernment for National Recovery 2011-2016, the government promised toestablish a constitutional convention to consider comprehensive constitutionalreform . . . and report within 12 months on a list of issues.88

The coalitions programme focused on six specific constitutional reformissues, including (1) reviewing of the Dil electoral system; (2) reducing the presidential term to five years and aligning it with the time frame of local andEuropean elections; (3) adding a provision for same-sex marriage; (4) amendingthe clause on women in the home and encouraging greater participation of womenin public life; (5) removing blasphemy from the Constitution; and (6) reducing thevoting age.89 The programme left open the possibility that the Convention couldrecommend other relevant amendments.90 However, the programme did not

84 Noel Whelan,Constitutional Convention Will Have Its Remit Severely Pruned , IRISHTIMES, Feb. 25, 2012,available at archive.is/kFDdb.85 Noel Whelan,Constitutional Convention Will Have Its Remit Severely Pruned , IRISHTIMES, Feb. 25, 2012,available at archive.is/kFDdb.86 Peter Taggart, Irish Parties Agree to Form Coalition, CNN, Mar. 6, 2011,available at http://www.cnn.com/2011/WORLD/europe/03/06/ireland.government.87 Social Justice Ireland,Government for National Recovery 2011-2016 , 18 (Mar. 6, 2011),available at http://www.socialjustice.ie/sites/default/files/file/Government%20Docs%20etc/2011-03-06%20-%20Programme%20for%20Government%202011-2016.pdf.88 Social Justice Ireland,Government for National Recovery 2011-2016 , 18 (Mar. 6, 2011),available at http://www.socialjustice.ie/sites/default/files/file/Government%20Docs%20etc/2011-03-06%20-%20Programme%20for%20Government%202011-2016.pdf.89 Social Justice Ireland,Government for National Recovery 2011-2016 , 18 (Mar. 6, 2011),available at http://www.socialjustice.ie/sites/default/files/file/Government%20Docs%20etc/2011-03-06%20-%20Programme%20for%20Government%202011-2016.pdf.90 Social Justice Ireland,Government for National Recovery 2011-2016 , 18 (Mar. 6, 2011),available at http://www.socialjustice.ie/sites/default/files/file/Government%20Docs%20etc/2011-03-06%20-%20Programme%20for%20Government%202011-2016.pdf.


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explain what it meant by a constitutional convention, was silent on its likelycomposition, and did not indicate what would happen to any recommendations.91

Despite this lack of particulars, many expected that the Convention would begin working on reform shortly after the election, because the parties election platforms indicated that they wanted to begin the constitutional reform process assoon as possible.92 In an effort to influence this process, several representatives ofthe Irish political science community started an initiative to highlight the benefitsof deliberative approaches to constitutional reform.93 They were able to secure adonation from a philanthropic organization, which allowed them to hold a numberof events and conduct surveys under the banner We the Citizens.94 At itsconclusion, the initiative presented a report, which included survey evidencedemonstrating the importance of involving citizens in the constitutional reform process, to the Parliament.95

Although there is no evidence that the initiatives report influenced theParliaments actions, the ultimate composition of the Convention suggests that itmight have. In July 2012, the nature and the structure of the reformative bodyemerged as both houses of the Parliament voted without debate96 to establish whatis formally known as the Convention on the Constitution.97 The Convention waslargely composed of citizen members. Out of 100 members total, the Conventionconsisted of an Executive branch-elected chairman, members of Parliament to be

91 Social Justice Ireland,Government for National Recovery 2011-2016 , 18 (Mar. 6, 2011),available at http://www.socialjustice.ie/sites/default/files/file/Government%20Docs%20etc/2011-03-06%20-%20Programme%20for%20Government%202011-2016.pdf.92 David M. Farrell,The 2013 Irish Constitutional Convention: A Bold Step or a Damp Squib?, Apr. 3, 2013, draftchapter for inclusion in COMPARATIVER EFLECTIONS ON75 YEARS OF THEIRISHCONSTITUTION, 4 (2013),availableat http://www.openpolitics.ro/wp-content/uploads/UCD_Mar13_final1.pdf.93 David M. Farrell,The 2013 Irish Constitutional Convention: A Bold Step or a Damp Squib?, Apr. 3, 2013, draftchapter for inclusion in COMPARATIVER EFLECTIONS ON75 YEARS OF THEIRISHCONSTITUTION, 4-5 (2013),available at http://www.openpolitics.ro/wp-content/uploads/UCD_Mar13_final1.pdf.94 David M. Farrell,The 2013 Irish Constitutional Convention: A Bold Step or a Damp Squib?, Apr. 3, 2013, draftchapter for inclusion in COMPARATIVER EFLECTIONS ON75 YEARS OF THEIRISHCONSTITUTION, 5 (2013),availableat http://www.openpolitics.ro/wp-content/uploads/UCD_Mar13_final1.pdf.95 David M. Farrell,The 2013 Irish Constitutional Convention: A Bold Step or a Damp Squib?, Apr. 3, 2013, draftchapter for inclusion in COMPARATIVER EFLECTIONS ON75 YEARS OF THEIRISHCONSTITUTION, 5 (2013),availableat http://www.openpolitics.ro/wp-content/uploads/UCD_Mar13_final1.pdf; seeWe the Citizens,We the Citizens: Final Report (Dec. 2011),available at http://www.atlanticphilanthropies.org/sites/default/files/uploads/We-the-Citizens-2011-FINAL.pdf.96 Dil Debates: Constitutional Convention: Motion, THEHOUSES OFOIREACHTAS (Jul. 12, 2012),available at debates.oireachtas.ie/dail/2012/07/10/00026.asp;Seanad Debates: Constitutional Convention: Motion, THEHOUSESOFOIREACHTAS (Jul. 12, 2012),available at debates.oireachtas.ie/seanad/2012/07/12/00008.asp; see alsoJimmyWalsh, Establishment of Convention Motion Passed Without Debate, IRISHTIMES, Jul. 13, 2012,available at archive.is/Nm2qK.97 Convention on the Constitution,Convention on the Constitution Terms of Reference, 1 (last visited Dec. 12,2013),available at http://www.constitution.ie/Documents/Terms_of_Reference.pdf.


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impartial representatives of the Houses, four Executive branch-invitedrepresentatives of Northern Ireland political parties, and 66 randomly selected Iriscitizens to represent the broader population.98 This composition ensured that theordinary citizens had a voting majority on all issues, including those issues directlyimpacting the Parliament.

The Parliament identified the purpose of the Convention as discussing proposed amendments to the Constitution of Ireland.99 It mandated the Conventionto consider eight specific issues:

reducing the presidential term of office to five years and aligning it withlocal and European elections;

reducing the voting age to 17; reviewing the Dil electoral system; giving citizens residing outside the state the right to vote in presidentialelections; adding a provision for same-sex marriage; amending the clause on the role of women in the home and encouraging

greater participation of women in public life; increasing the participation of women in politics; and removing the offence of blasphemy from the Constitution.100

Additionally, the Parliament announced that after the reports for the initialeight issues were complete, the Convention may consider other potentialconstitutional amendments.101 The Parliament indicated that it was not obligated to proceed with any amendment proposal, but promised to respond formally to eachrecommendation and to debate it in the Parliament within four months ofsubmission.102 Aside from the inaugural meeting on December 1, 2012, theConvention held nine meeting sessions in 2013 through December 1, 2013.103 The

98 Convention on the Constitution,Convention on the Constitution Terms of Reference, 1-2 (last visited Dec. 12,2013),available at http://www.constitution.ie/Documents/Terms_of_Reference.pdf.99

Convention on the Constitution,Convention on the Constitution Terms of Reference, 1 (last visited Dec. 12,2013),available at http://www.constitution.ie/Documents/Terms_of_Reference.pdf.100 Convention on the Constitution,Convention on the Constitution Terms of Reference, 1 (last visited Dec. 12,2013),available at http://www.constitution.ie/Documents/Terms_of_Reference.pdf.101 Convention on the Constitution,Convention on the Constitution Terms of Reference, 1 (last visited Dec. 12,2013),available at http://www.constitution.ie/Documents/Terms_of_Reference.pdf. 102 Convention on the Constitution,Convention on the Constitution Terms of Reference, 3 (last visited Dec. 12,2013),available at http://www.constitution.ie/Documents/Terms_of_Reference.pdf.103 Convention on the Constitution,Constitutional Convention-Calendar for 2013 (last visited Jan. 14, 2014),available at https://www.constitution.ie/AttachmentDownload.ashx?mid=873ff73a-11c9-e211-a5a0-005056a32ee4.


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Convention also held nine regional meetings in October and November of 2013.104 The Convention completed its work within the 12-month deadline.105

Public Participation in the Reform Process

To increase public participation in the constitutional reform process,Parliament included 66 randomly selected citizens in the Conventionsmembership. To create a representative sample of the Irish public, a pollingcompany chose the citizen members of the Convention at random.106 The pollstersensured that the demographic make-up of the group reflected that of Irelandgenerally by selecting a fixed number of members from each age group, includinga representative sample of sexes and regions of Ireland.107 The citizen membersvoluntarily participate in the Convention, and they are not paid for their time, butthey do receive reimbursement for expenses they incur in attending theConventions weekend meetings.108

Although some view the inclusion of these randomly selected citizens asdemocracy in its purest form, others criticized the Parliaments decision.109 Concerns included the 66 citizens anonymity, their ability to influence theoutcome of deliberations, and the absence of expert involvement in the deliberatio process. Initially, the Convention kept the names of its citizen members secret because many of the selected citizens feared that if their names were made public,they would be targeted by lobbying groups and journalists.110 A leading Irishnewspaper criticized this approach and claimed that democracy does not functionin secret and that the public should know who is making decisions on their

104 Convention on the Constitution, Regional Meetings-October & November, 2013 (last visited Jan. 14, 2014),available at https://www.constitution.ie/AttachmentDownload.ashx?mid=f0e50a9f-f72c-e311-96d5-005056a32ee4.105 Convention on the Constitution,Convention (last visited Jan. 14, 2014),available at https://www.constitution.ie/Convention.aspx.106 TheJournal.ie,Constitutional Convention Aims to Begin Discussions Next Month, Sep. 21, 2012,available at http://www.thejournal.ie/constitutional-convention-to-begin-in-october-604453-Sep2012.107 TheJournal.ie,Constitutional Convention Aims to Begin Discussions Next Month, Sep. 21, 2012,available at http://www.thejournal.ie/constitutional-convention-to-begin-in-october-604453-Sep2012.108 Eolas Magazine, Reviewing the Constitution, Aug. 2, 2013,available athttp://www.eolasmagazine.ie/reviewing-the-constitution; Mary Regan,Citizens to Be Selected to Constitution Convention, IRISHEXAMINER , Jun. 6, 2012,available athttp://www.irishexaminer.com/ireland/citizens-to-be-selected-to-constitution-convention-196395.html;Fionnan Sheahan,Seven Leave Think-Tank Over Naming of Members, I NDEPENDENT, Dec. 3, 2012,available athttp://www.independent.ie/irish-news/seven-leave-thinktank-over-naming-of-members-28942592.html.109 David M. Farrell,The 2013 Irish Constitutional Convention: A Bold Step or a Damp Squib?, Apr. 3, 2013, draftchapter for inclusion in COMPARATIVER EFLECTIONS ON75 YEARS OF THEIRISHCONSTITUTION, 12 (2013),available at http://www.openpolitics.ro/wp-content/uploads/UCD_Mar13_final1.pdf.110 Comms Team, Anonymity for Citizen Participants in the Constitutional Convention, EUROPEANMOVEMENTIRELAND (Nov. 19, 2012),available at http://www.europeanmovement.ie/anonymity-for-citizen-participants-in-the-constitutional-convention.


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basis of chance and not because of representing any setof vested interests of [sic] because of any particular areaof expertise that they may have.120

Farrell acknowledged that the Irish Constitutional Convention had broadrepresentation121 He believed that the Convention represented the political elitesattempt to include the rest of society in the reform process.122 Farrell alsosuggested that including the rest of society would lead to a democracy that relieson citizens inputs.123 Convention Chairman Tom Arnold acknowledged at thelaunch of the Convention that the Convention as a citizens assembly is a goodstarting point to gain support from the Irish public.124

Topics of Reform and Reform Proposals

The Parliament gave the Convention the task of considering specificamendments to the Constitution.125 Within several weeks of each meeting, theConvention released reports that provided extensive background on each reform proposal it discussed during the meeting.126 The meeting reports includedsummaries of each meeting; Convention recommendations; internal voting resultsmeeting agendas; expert presentations; and summaries of Convention discussionson particular reform proposals.127 As of January 27, 2014, the Convention hasreleased six reports covering all of the original eight reform proposals thatParliament identified.

120 David M. Farrell,The 2013 Irish Constitutional Convention: A Bold Step or a Damp Squib?, Apr. 3, 2013, draftchapter for inclusion in COMPARATIVER EFLECTIONS ON75 YEARS OF THEIRISHCONSTITUTION, 9 n.16 (2013),available at http://www.openpolitics.ro/wp-content/uploads/UCD_Mar13_final1.pdf.121 David M. Farrell,The 2013 Irish Constitutional Convention: A Bold Step or a Damp Squib?, Apr. 3, 2013, draftchapter for inclusion in COMPARATIVER EFLECTIONS ON75 YEARS OF THEIRISHCONSTITUTION, 12 (2013),available at http://www.openpolitics.ro/wp-content/uploads/UCD_Mar13_final1.pdf.122 David M. Farrell,The 2013 Irish Constitutional Convention: A Bold Step or a Damp Squib?, Apr. 3, 2013, draftchapter for inclusion in COMPARATIVER EFLECTIONS ON75 YEARS OF THEIRISHCONSTITUTION, 12 (2013),available at http://www.openpolitics.ro/wp-content/uploads/UCD_Mar13_final1.pdf.123 David M. Farrell,The 2013 Irish Constitutional Convention: A Bold Step or a Damp Squib?, Apr. 3, 2013, draftchapter for inclusion in COMPARATIVER EFLECTIONS ON75 YEARS OF THEIRISHCONSTITUTION, 12 (2013),available at http://www.openpolitics.ro/wp-content/uploads/UCD_Mar13_final1.pdf.124 Chairman, Mr. Tom Arnold,The Inaugural Meeting of the Convention on the Constitution, THECONVENTION ONTHECONSTITUTION, 2 (Dec. 1, 2012),available at http://www.constitution.ie/AttachmentDownload.ashx?mid=30a2b070-563d-e211-a5a0-005056a32ee4.125 Convention on the Constitution,Convention on the Constitution Terms of Reference, 1 (last visited Dec. 12,2013),available at http://www.constitution.ie/Documents/Terms_of_Reference.pdf.126 Convention on the Constitution, Meetings: Reports (last visited Dec. 12, 2013), available athttp://www.constitution.ie/Meetings.aspx#minutes.127 Convention on the Constitution, Meetings: Reports (last visited Dec. 12, 2013), available athttp://www.constitution.ie/Meetings.aspx#minutes.


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Topics of Reform: The Conventions Differing Approaches

The Convention used several different approaches in considering reformtopics and in preparing its own recommendations. For instance, in its fourthreport, the Convention outlined its consideration of amendments to the Dilelectoral system.128 This was a complex issue within a wide mandate. In responseto the issues complexity, the Convention planned a longer period of time forconsideration of this issue and used the ballot system to focus the discussion.129 After expert testimony, the Conventions delegates eliminated some options andfocused on the remaining options to create a list of final proposals.130 A structured procedure aided in the development of a specific recommendation from virtuallyinfinite options.131

During the first meeting on Dil electoral reform, the Conventions delegateconsidered and entertained expert presentations on the current voting system andthree alternatives.132 At the end of the session, they voted to continue consideringthe current system and one alternative, along with four separate issues relating tothe Dil electoral system: constituency size, number of Dil members, non- parliamentary Ministers, and ways to increase citizen engagement in thedemocratic process.133 The second meeting included more expert testimony, aswell as two additional votes.134 The Convention voted in favor of amending thecurrent voting procedures through changes to the system in place rather than

128 Convention on the Constitution, Fourth Report of the Convention on the Constitution: Dil Electoral System (Aug. 2013),available at http://www.constitution.ie/AttachmentDownload.ashx?mid=fdf70670-030f-e311-a203-005056a32ee4.129 Convention on the Constitution, Fourth Report of the Convention on the Constitution: Dil Electoral System (Aug. 2013),available at http://www.constitution.ie/AttachmentDownload.ashx?mid=fdf70670-030f-e311-a203-005056a32ee4.130 Convention on the Constitution, Fourth Report of the Convention on the Constitution: Dil Electoral System (Aug. 2013),available at http://www.constitution.ie/AttachmentDownload.ashx?mid=fdf70670-030f-e311-a203-005056a32ee4.131 Convention on the Constitution, Fourth Report of the Convention on the Constitution: Dil Electoral System (Aug. 2013),available at http://www.constitution.ie/AttachmentDownload.ashx?mid=fdf70670-030f-e311-a203-005056a32ee4.132 Convention on the Constitution, Fourth Report of the Convention on the Constitution: Dil Electoral System, 13-43 (Aug. 2013),available at http://www.constitution.ie/AttachmentDownload.ashx?mid=fdf70670-030f-e311-a203-005056a32ee4.133 Convention on the Constitution, Fourth Report of the Convention on the Constitution: Dil Electoral System, 7-8(Aug. 2013),available at http://www.constitution.ie/AttachmentDownload.ashx?mid=fdf70670-030f-e311-a203-005056a32ee4.134 Convention on the Constitution, Fourth Report of the Convention on the Constitution: Dil Electoral System, 44-64 (Aug. 2013),available at http://www.constitution.ie/AttachmentDownload.ashx?mid=fdf70670-030f-e311-a203-005056a32ee4.


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through whole-scale adoption of a new electoral system.135 Two specific changesto the system included arranging candidate names alphabetically on the ballots andestablishing constituency sizes that are no less than five seats.136

For other reform proposals, the Convention began its deliberations with aspecific proposal. For instance, one of the reform proposals was reducing thevoting age to 17.137 Following expert testimony and presentations, the Convention broke into small group discussions.138 During these discussions, many delegateswished to debate a National Youth Council of Ireland recommendation to reducethe voting age even further to 16.139 The Convention ultimately broke the voteinto three parts: (1) whether the voting age should be reduced; (2) whether itshould be reduced to 17 or 16; and (3) whether candidacy ages should be reducedas well, and whether the age should be reduced for only some elections.140 TheConvention voted to reduce the voting age to 16.141 The Parliament accepted thisrecommendation and announced that it would schedule a referendum on this issue before the end of 2015.142

In this instance, rather than simply vote yes or no on the initiative, theConvention opted to make a new recommendation based on the opinions of outsidstakeholders. Although public interest groups are excluded from the Conventions

135 Convention on the Constitution, Fourth Report of the Convention on the Constitution: Dil Electoral System, 7-8(Aug. 2013),available at http://www.constitution.ie/AttachmentDownload.ashx?mid=fdf70670-030f-e311-a203-005056a32ee4.136 Convention on the Constitution, Fourth Report of the Convention on the Constitution: Dil Electoral System, 7(Aug. 2013),available at http://www.constitution.ie/AttachmentDownload.ashx?mid=fdf70670-030f-e311-a203-005056a32ee4.137 Convention on the Constitution,Convention on the Constitution Terms of Reference, 1 (last visited Dec. 12,2013),available at http://www.constitution.ie/Documents/Terms_of_Reference.pdf.138 Convention on the Constitution, First Report of the Convention on the Constitution: (i) Reducing the voting ageto 17; and (ii) Reducing the Presidential term of office to five years and aligning it with the local and Europeanelections, 10, 14 (Mar. 2013),available at http://www.constitution.ie/AttachmentDownload.ashx?mid=e1f8e128-2496-e211-a5a0-005056a32ee4.139 Convention on the Constitution, First Report of the Convention on the Constitution: (i) Reducing the voting ageto 17; and (ii) Reducing the Presidential term of office to five years and aligning it with the local and Europeanelections, 9, 11 (Mar. 2013),available at http://www.constitution.ie/AttachmentDownload.ashx?mid=e1f8e128-2496-e211-a5a0-005056a32ee4.140

Convention on the Constitution, First Report of the Convention on the Constitution: (i) Reducing the voting ageto 17; and (ii) Reducing the Presidential term of office to five years and aligning it with the local and Europeanelections, 6 (Mar. 2013),available at http://www.constitution.ie/AttachmentDownload.ashx?mid=e1f8e128-2496-e211-a5a0-005056a32ee4.141 Convention on the Constitution, First Report of the Convention on the Constitution: (i) Reducing the voting ageto 17; and (ii) Reducing the Presidential term of office to five years and aligning it with the local and Europeanelections, 6 (Mar. 2013),available at http://www.constitution.ie/AttachmentDownload.ashx?mid=e1f8e128-2496-e211-a5a0-005056a32ee4.142 Michel ORegan, Referendum on Voting Age Before End of 2015, IRISHTIMES, Jul. 19, 2013,available athttp://www.irishtimes.com/news/politics/oireachtas/referendum-on-voting-age-before-end-of-2015-1.1468162.


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deliberations,143 the National Youth Council of Ireland was allowed to present atone of the meetings, thereby impacting the Conventions discussions and shapingthe ultimate recommendation.144

The Conventions approaches to these two specific amendment proposalsillustrate the flexibility in Irelands constitutional reform process. TheConventions approaches are also consistent with Parliaments resolution thatestablished the Convention, which broadly words the Conventions mandate toconsider issues of constitutional reform and to create recommendations for thoseissues.145 The Parliament could have limited the Conventions ability to makeamendments, but instead decided to allow flexibility.146 This flexibility allowedthe Convention to not only work within the eight recommended themes, but also to propose other constitutional reforms.147 At the same time, the Parliament remainedfree to accept or reject the Conventions proposals, because the Convention is anadvisory, rather than declaratory, body.148 For instance, the Parliament chose toreject the Conventions recommendation that citizens be given a voice in the presidential nomination process.149

Additional Possible Reform Proposals

The Parliament authorized the Convention to consider additional reform proposals,150 which were discussed during its final plenary sessions.151 Prior to

143 Irish Council for Civil Liberties, Developing a Model of Best Practice for Public Participation in Constitutional Reform, 6 (Jun. 20, 2012),available at http://www.iccl.ie/news/2012/07/10/dozens-of-civil-society-groups-protest-exclusion-from-constitutional-convention-.html.144 Convention on the Constitution,The Convention on the Constitution January 26 th 27 th , 2013 (last visited Dec.12, 2013),available at http://www.constitution.ie/AttachmentDownload.ashx?mid=6306d6f7-df66-e211-a5a0-005056a32ee4.145 Convention on the Constitution,Convention on the Constitution Terms of Reference, 1 (last visited Dec. 12,2013),available at http://www.constitution.ie/Documents/Terms_of_Reference.pdf.146 David M. Farrell,The 2013 Irish Constitutional Convention: A Bold Step or a Damp Squib?, Apr. 3, 2013, draftchapter for inclusion in COMPARATIVER EFLECTIONS ON75 YEARS OF THEIRISHCONSTITUTION, 10 (2013),available at http://www.openpolitics.ro/wp-content/uploads/UCD_Mar13_final1.pdf.147 David M. Farrell,The 2013 Irish Constitutional Convention: A Bold Step or a Damp Squib?, Apr. 3, 2013, draftchapter for inclusion in COMPARATIVER EFLECTIONS ON75 YEARS OF THEIRISHCONSTITUTION, 10 (2013),available at http://www.openpolitics.ro/wp-content/uploads/UCD_Mar13_final1.pdf.148

David M. Farrell,The 2013 Irish Constitutional Convention: A Bold Step or a Damp Squib?, Apr. 3, 2013, draftchapter for inclusion in COMPARATIVER EFLECTIONS ON75 YEARS OF THEIRISHCONSTITUTION, 11 (2013),available at http://www.openpolitics.ro/wp-content/uploads/UCD_Mar13_final1.pdf.149 Michel ORegan, Referendum on Voting Age Before End of 2015, IRISHTIMES, Jul. 19, 2013,available athttp://www.irishtimes.com/news/politics/oireachtas/referendum-on-voting-age-before-end-of-2015-1.1468162.150 Convention on the Constitution,Convention on the Constitution Terms of Reference, 1 (last visited Dec. 12,2013),available at http://www.constitution.ie/Documents/Terms_of_Reference.pdf.151 Convention on the Constitution,Constitutional Convention Calendar for 2013 (last visited Dec. 12, 2013),available at http://www.constitution.ie/AttachmentDownload.ashx?mid=873ff73a-11c9-e211-a5a0-005056a32ee4(The final plenary sessions took place on November 30 and December 1, 2013).


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these sessions, the Convention had conducted a series of meetings across Ireland152 to obtain regional input on additional reform topics.153 Stakeholders publiclyreleased a variety of suggestions for additional reform topics, includingsuggestions regarding human rights; economic, social, and cultural rights; domestiimplementation of treaties; and a more secular constitution. In December 2013,the Convention announced that its final two sessions will focus on Dil reform andeconomic, social, and cultural rights. Members of the Convention chose thesetopics based on regional meetings in November 2013 and hundreds of publicsubmissions collected through the Conventions website. These meetings will take place in February 2014.154

Irish human rights organizations believe that the 1937 Constitution does notsufficiently integrate human rights developments into Irelands domestic legalframework.155 For instance, the Irish Human Rights Commission (IHRC) believesthat the 1937 Constitution, which predates the United Nations UniversalDeclaration of Human Rights by 11 years, has not adequately adapted to evolvinginternational views on human rights.156 The IHRC is a government-created,independent body that oversees the promotion of human rights in Ireland.157 TheIHRC urged the Convention to consider amending the Constitution to incorporatetreaties automatically into domestic law so that the human rights protections oftreaties could be enforceable by Irish courts without further action by

152 Convention on the Constitution, Regional Meetings October & November, 2013(last visited Dec. 12, 2013),available at http://www.constitution.ie/AttachmentDownload.ashx?mid=f0e50a9f-f72c-e311-96d5-005056a32ee4.153 Convention on the Constitution, Public Meeting(last visited Dec. 12, 2013),available at www.constitution.ie/AttachmentDownload.ashx?mid=321dcc98-1e42-e311-8571-005056a32ee4.154 Convention on the Constitution,Convention on the Constitution chooses(i) Dil Reform and (ii) Economic,Social and Cultural rights for discussion at their final two meetings in February 2014 (Dec. 2013),available at https://www.constitution.ie/AttachmentDownload.ashx?mid=922d30df-2067-e311-877e-005056a32ee4.155 Maurice Manning,The Constitution: Human Rights Challenges, IRISHHUMANR IGHTSCOMMISSION, 1 (Jun. 30,2012),available at http://www.ihrc.ie/download/pdf/dr_maurice_manning_ihrc_president_address_on_constitution_ucd_school_of_law _30_june_2012.pdf.156

Maurice Manning,The Constitution: Human Rights Challenges, IRISHHUMANR IGHTSCOMMISSION, 1 (Jun. 30,2012),available at http://www.ihrc.ie/download/pdf/dr_maurice_manning_ihrc_president_address_on_constitution_ucd_school_of_law _30_june_2012.pdf.157 Citizens Information, Irish Human Rights Commission (Apr. 28, 2008),available at http://www.citizensinformation.ie/en/justice/law_and_rights/irish_human_rights_commission.html.


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Parliament.158 Other possible human rights amendments include strengthenedgender equality provisions and language on the rights of children.159

Additionally, some have called for the inclusion of economic, social, andcultural rights into the Irish Constitution. A poll conducted by AmnestyInternational Ireland and Red C Express found that 78 percent of those asked believe the Constitution should be amended to include the rights to housing andaccess to healthcare.160

The 1937 Constitutions pro-religious stance has also received attention.Because the Catholic Church in Ireland was heavily involved in the developmentand passage of the 1937 Constitution,161 it includes provisions on divorce, abortion,and marriage.162 Some groups have called for a more secular approach.163 Same-sex marriage is one issue currently under consideration that would contradictCatholic traditions. Access to abortion, by contrast, remains heavily limited, evenafter the passage of new laws on the issue in 2013.164

In addition to the issues considered by the Convention, the general public proposed a list of additional issues for the Conventions consideration. Thegeneral public made its submissions through the Conventions website.165 Some ofthose submissions include environmental protection and the prohibition of

158 Maurice Manning,The Constitution: Human Rights Challenges, IRISHHUMANR IGHTSCOMMISSION, 7 (Jun. 30,2012),available at http://www.ihrc.ie/download/pdf/dr_maurice_manning_ihrc_president_address_on_constitution_ucd_school_of_law _30_june_2012.pdf.159 Maurice Manning,The Constitution: Human Rights Challenges, IRISHHUMANR IGHTSCOMMISSION, 7 (Jun. 30,2012),available at http://www.ihrc.ie/download/pdf/dr_maurice_manning_ihrc_president_address_on_constitution_ucd_school_of_law _30_june_2012.pdf.160 Amnesty International Ireland, Poll Shows Irish People Back Health and Housing Rights (Apr. 13, 2012),available at http://www.amnesty.ie/polling.161 Elizabeth OMalley,(Re)Constitution, THEU NIVERSITYOBSERVER , Oct. 20, 2011,available at http://www.universityobserver.ie/2011/10/20/reconstitution.162 Elizabeth OMalley,(Re)Constitution, THEU NIVERSITYOBSERVER , Oct. 20, 2011,available at http://www.universityobserver.ie/2011/10/20/reconstitution.163 Elizabeth OMalley,(Re)Constitution, THEU NIVERSITYOBSERVER , Oct. 20, 2011,available at http://www.universityobserver.ie/2011/10/20/reconstitution.164 RTE News, Ireland President Michael D. Higgins Signs Protection of Life During Pregnancy Bill into Law, Jul.30, 2013,available athttp://reproductiverights.org/en/press-room/ireland-president-michael-d-higgins-signs- protection-of-life-during-pregnancy-bill-2013-i.165 Convention on the Constitution, Frequently Asked Questions: How Can I Make a Submission? (last visited Jan.24, 2014),available at https://www.constitution.ie/Search.aspx?kw=submission.


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hydraulic fracturing (fracking), contributions to developing nations, pensions, andissues related to the European Union.166

Challenges to Reform

Although the Irish Parliament and the Convention have engaged in acomprehensive reform process, substantial challenges remain. For instance, somecritics believe that the public may suffer from referendum fatigue. Other criticshave suggested that passing individual amendments will be easier than passing anew constitution. The Convention has also received criticism regarding itsapproach to gathering public input. Constitutional referendums have beencriticized because they can be successfully adopted through a simple majority voteand because there is no definite process for handling failed referendums.

Referendum Fatigue

Because the Constitution requires a public referendum to pass anyconstitutional amendments,167 critics believe that amending the 1937 Constitution,rather than proposing a new one, may leave the public with referendum fatigue.Some evidence suggests that frequent referendums may not be an effectiveamendment process due to their sheer frequency. For instance, on October 4,2013, the Irish electorate considered two separate referendums.168 The referendumaimed at establishing a new criminal Court of Appeal passed by a comfortablemargin.169 However, the referendum to abolish the Seanad, the upper house ofParliament, narrowly failed.170 Over 1.2 million voters participated in bothreferendums.171

Following these and past constitutional reform efforts, some have cautionedthat voters may suffer from referendum fatigue that may impact turnout at

166 Convention on the Constitution,Submissions Search(last visited Dec, 12, 2013),available athttp://www.constitution.ie/Submissions.aspx.167

IRELANDCONST. arts. 20, 27(5)-(6) (1937),available athttp://http://archive.constitution.ie/reports/ConstitutionofIreland.pdf.168 Referendum Commission, Independent Guide to the Seanad & Court of Appeal Referendums, 3 (2013),availableat http://referendum2013.ie/Guide_Booklet_2013_eng.pdf.169 Kitty Holland, Referendum on Court of Appeal Comfortably Passed , IRISHTIMES, Oct. 5, 2013,available at http://www.irishtimes.com/news/politics/referendum-on-court-of-appeal-comfortably-passed-1.1551784.170 Seanad Vote: Public Vote to Keep Irish Senate, BBC NEWS, Oct. 5, 2013,available at http://www.bbc.co.uk/news/world-europe-24404157.171 Kitty Holland, Referendum on Court of Appeal Comfortably Passed , IRISHTIMES, Oct. 5, 2013,available at http://www.irishtimes.com/news/politics/referendum-on-court-of-appeal-comfortably-passed-1.1551784.


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subsequent elections.172 Voters may become tired with the voting process becausethey find voting inconvenient or because a previous issue they felt strongly aboutdid not succeed or fail as they hoped.

Although Parliament announced that it would present a package of theConventions reform proposals as part of a Constitution Day in 2015,173 recentreports indicate that Ireland likely will not hold any referendums in 2014. Theseefforts may help combat referendum fatigue, as well as provide interested partieswith ample time to educate the public on their positions.

Individual Amendments Versus a New Constitution

Another challenge to constitutional referendums is that individualamendments may not be capable of adequately addressing systemic constitutionalissues. The Constitution has been amended numerous times since its original passage in 1937.174 Single proposals that are individually considered and votedupon may be comparatively easier to pass than adopting an entirely newconstitution; however, they may be inadequate to achieve wide-scale impact on theIrish political system and economy.

Public Input

In late 2013, the delegates traveled across Ireland to obtain regional inputthrough open forums on additional reform topics.175 The Convention held nineregional public meetings in October and November 2013.176 The Conventionmaintains a Facebook page that was used to inform the public about when regionameetings took place.177

172 Stephen Collins & Genevieve Carbery, Referendum on Same-Sex Marriage to Be Held in 2015, IRISHTIMES, Nov. 5, 2013,available at http://www.irishtimes.com/news/politics/referendum-on-same-sex-marriage-to-be-held-in-2015-1.1584350.173 Fionnan Sheahan,Gay Marriage Referendum in 2015 as Part of a Special Constitution Day, I NDEPENDENT.IE, Nov. 25, 2013,available athttp://www.independent.ie/irish-news/gay-marriage-referendum-in-2015-as-part-of-a-special-constitution-day-29728517.html.174 Taoiseach, Mr. Enda Kenny, T.D,Speech at the Launch of Constitutional Convention, THECONVENTION ON THECONSTITUTION, 1 (Dec. 1, 2012),available at http://www.constitution.ie/AttachmentDownload.ashx?mid=f02defe5-583d-e211-a5a0-005056a32ee4.175 Convention on the Constitution, Regional Meetings October & November, 2013(last visited Dec. 12, 2013),available at http://www.constitution.ie/AttachmentDownload.ashx?mid=f0e50a9f-f72c-e311-96d5-005056a32ee4.176 Convention on the Constitution, Regional Meetings-October & November, 2013 (last visited Jan. 14, 2014),available at https://www.constitution.ie/AttachmentDownload.ashx?mid=f0e50a9f-f72c-e311-96d5-005056a32ee4.177 Convention on the Constitution,Convention on the Constitution (last visited Jan. 14, 2014),available at https://www.facebook.com/ConstitutionConvention.


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Although the Convention and the Parliament created proposals thataddressed their own particular concerns, critics of the proposals suggested that thedid not consider how the proposals would impact the public. The Irish Council foCivil Liberties (ICCL) criticized the Parliament for not engaging the public duringthe formation stages of the Convention, not educating the public about theconstitutional reform process, and not seeking the publics input.178 From theICCLs perspective, preventing civil society from engaging in the reform process,randomly selecting citizens to represent the whole population, and forming political representation based on party numbers in Parliament places the reform process in danger of not appearing genuine.179

Additionally, out of concern that public interest groups represent specialinterests, Parliament has excluded them from participation in the Convention.180 In protest of that decision, more than 60 organizations, including AmnestyInternational, Concern, Irish Council for Civil Liberties, Irish Refugee Council, National Womens Council of Ireland, and Transparency International, signed aso-called Civil Society Charter for a Constitutional Convention.181 Over 70organizations have signed the Civil Society Charter.182 They urged the Irishgovernment to create a constitutional convention that was participatory, inclusive,and meaningful.183 Although they are excluded from participating in theConventions deliberations,184 public interest groups and other stakeholders may provide their input through the Conventions website185 or through encouragingtheir supporters to submit petitions to the Convention.186

178 Irish Council for Civil Liberties, Developing a Model of Best Practice for Public Participation in Constitutional Reform, 6 (Jun. 20, 2012),available at http://www.iccl.ie/news/2012/07/10/dozens-of-civil-society-groups-protest-exclusion-from-constitutional-convention-.html.179 Irish Council for Civil Liberties, Developing a Model of Best Practice for Public Participation in Constitutional Reform, 6 (Jun. 20, 2012),available at http://www.iccl.ie/news/2012/07/10/dozens-of-civil-society-groups-protest-exclusion-from-constitutional-convention-.html.180 Irish Council for Civil Liberties, Developing a Model of Best Practice for Public Participation in Constitutional Reform, 6 (Jun. 20, 2012),available at http://www.iccl.ie/news/2012/07/10/dozens-of-civil-society-groups-protest-exclusion-from-constitutional-convention-.html.181 Irish Times, Reform Body to Meet Next Month, Nov. 5, 2012,available at archive.is/OlDQt.182 Irish Council for Civil Liberties, Hear Our Voices (last visited Jan. 14, 2014),available at http://www.iccl.ie/hear-our-voices.html.183

Irish Council for Civil Liberties,Civil Society Charter for Constitutional Convention (last visited Dec. 12, 2013),available at http://www.iccl.ie/hear-our-voices.html.184 Irish Council for Civil Liberties, Developing a Model of Best Practice for Public Participation in Constitutional Reform, 10 (Jun. 20, 2012),available at http://www.iccl.ie/news/2012/07/10/dozens-of-civil-society-groups-protest-exclusion-from-constitutional-convention-.html.185 Tom Arnold, Message from the Chairman, CONVENTION ON THECONSTITUTION (last visited Dec. 12, 2013) available athttp://www.constitution.ie, (This website is designed to make participation by everyonemembers ofthe public, interest groups, organisations and the Diasporaas easy as possible.).186 Michael Nugent, Huge Surge in Submissions about Church and State to the Irish Constitutional Convention (Nov. 6, 2013),available at http://www.michaelnugent.com/2013/11/06/huge-surge-in-submissions-about-church-


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Failed Referendums

Another obstacle to reform is that some initiatives may fail to garner enough public support, leaving the future of those reforms uncertain. Constitutionalamendment referendums in Ireland require a simple majority vote in order to beapproved.187 However, if the referendum fails, the fate of those failedreferendums is not clear. For instance, the Seanad amendment referendumconducted in 2013 did not receive enough votes to pass,188 and the Irish PrimeMinister confirmed that this unsuccessful reform effort would not be presentedagain.189 Nevertheless, Parliament has the authority to either put the proposal upfor a second referendum vote or to set it aside for the foreseeable future and propose it again when the political environment is more amenable.

Anticipated Next Steps

The Conventions final meetings occurred on November 30 and December1, 2013. 190 The Convention released reports after the conclusion of each plenarysession, with its sixth and final report releasedon January 27, 2014.191

The Irish government committed to presenting Parliament with its responseto each reform proposal within four months of each reports release.192 If thegovernment decides to proceed with a referendum on a particular recommendation part of its response will include a timeframe for the referendum.193 In accordancewith its promise, the government has already begun responding to theConventions recommendations. In July 2013, the government announced that it

and-state-to-the-irish-constitutional-convention/; Public Interest Law Alliance, Amnesty International Call[s] forSubmissions to the Constitutional Convention on Socio-Economic Rights (Sep. 25, 2013),available at www.pila.ie/bulletin/september-2013/25-september-2013/amnesty-international-call-for-submissions-to-the-constitutional-convention-on-socio-economic-rights.187 IRELANDCONST. art. 47(1) (1937); Referendum Commission, Frequently Asked Questions (last visited Jan. 14,2014),available at http://www.refcom.ie/en/Frequently-Asked-Questions/#wharef.188 RTE News,Taoiseach Confirms No Re-Run of Seanad Referendum, Oct. 8, 2013,available at rte.ie/news/2013/1007/478811-seanad-referendum-reaction/.189 RTE News,Taoiseach Confirms No Re-Run of Seanad Referendum, Oct. 8, 2013,available at rte.ie/news/2013/1007/478811-seanad-referendum-reaction/.

191 Convention on the Constitution, Meetings(last visited Feb. 5, 2014),available at https://www.constitution.ie/Meetings.aspx. 192 Convention on the Constitution, FAQs: What Will Happen After the Convention Has Reported to the Oireachtas? (last visited Dec. 12, 2013),available athttp://www.constitution.ie/FAQs.aspx.193 Convention on the Constitution, FAQs: What Will Happen After the Convention Has Reported to the Oireachtas? (last visited Dec. 12, 2013),available athttp://www.constitution.ie/FAQs.aspx.


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would hold a referendum during 2015 on reducing the voting age to 16.194 On November 5, 2013, the government made a similar announcement with regards to referendum on same-sex marriage.195 Both referendums, along with other reform proposals, will be put to public vote in mid-2015 on what has been called aConstitution Day.196

Respective stakeholders have and will likely continue to express theirreaction to the proposed amendments. For instance, the Catholic Church in Irelanhas indicated that it will oppose the same-sex marriage constitutionalamendment.197 Campaigns supporting or opposing particular amendments couldalso have an impact on other amendments, as advocates of either side will beworking to ensure their supporters participate in the voting process.

Ultimately, voter turnout could have a significant impact on the passage orrejection of any particular referendum, especially if the vote is close. For instancethe referendums considered in October and November 2013 reflected a 39 percentturnout and a 33 percent turnout, respectively.198 Although the votes were notclose for either measure on the ballot,199 future campaigns could sway theoutcomes by better mobilizing supportive constituents to the polls.

Lessons Learned from Irelands Constitutional Reform Process

Irelands Convention process provides meaningful lessons on constitutionalreform in the 21st century. Several aspects are particularly well-suited foradaptation to other reform efforts, including considering and voting on individual proposals, rather than whole packages of reform; incorporating a diverse group ofindividuals into the reform process; and emphasizing public participation andtransparency in both the design and the decision-making processes.

194 Michael ORegan, Referendum on Voting Age Before End of 2015, IRISHTIMES, Jul. 19, 2013,available at http://www.irishtimes.com/news/politics/oireachtas/referendum-on-voting-age-before-end-of-2015-1.1468162.195 Henry McDonald, Ireland to Hold Referendum on Gay Marriage, GUARDIAN, Nov. 5, 2013,available athttp://www.theguardian.com/world/2013/nov/05/ireland-referendum-gay-marriage.196 Henry McDonald, Ireland to Hold Referendum on Gay Marriage, GUARDIAN, Nov. 5, 2013,available athttp://www.theguardian.com/world/2013/nov/05/ireland-referendum-gay-marriage.197 Fionnan Sheahan,Gay Marriage Referendum in 2015 as Part of a Special Constitution Day, I NDEPENDENT.IE, Nov. 25, 2013,available athttp://www.independent.ie/irish-news/gay-marriage-referendum-in-2015-as-part-of-a-special-constitution-day-29728517.html.198 Election Guide, Referendum: Oct. 4, 2013 (last visited Jan. 12, 2014),available at http://www.electionguide.org/elections/id/213/; Election Guide, Referendum: Nov. 10, 2013 (last visited Jan. 12,2013),available athttp://www.electionguide.org/elections/id/199/.199 Election Guide, Referendum: Oct. 4, 2013 (last visited Jan. 12, 2014),available at http://www.electionguide.org/elections/id/213/; Election Guide, Referendum: Nov. 10, 2013 (last visited Jan. 12,2013),available athttp://www.electionguide.org/elections/id/199/.


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Consideration of Individual Reform Proposals

In Irelands constitutional reform process, government officials andmembers of the public consider each constitutional reform proposal individually,rather than as a package. The Parliament made specific, individualized requestsfor prioritizing reform proposals.200 The Conventions structure has allowed foreach reform proposal to be considered and voted upon individually. Each reportaddresses one or more of these individual reform proposals, and the governmentdecides whether or not it will support each report on an individual basis.201 Eachreform proposal also requires an individual referendum vote.

By considering these reform proposals individually, the Parliament, theConvention, and the government prevent a negative vote on one issue from blocking the entire reform proposal package. For instance, given the CatholicChurchs opposition to same-sex marriage202 and its likely efforts to campaignagainst the referendum, the proposal may not pass. However, the passage orfailure of the same-sex marriage referendum will not have a direct impact onamendments to the minimum voting age. Each reform proposal will stand or fallon its own, rather than as a group. This contrasts with constitutional reform processes aimed at the passage of a package of proposals, where continueddisagreements on one initiative may delay or halt the reform process completely.

Reviewing proposals individually also allows for a two-step approach.Completely replacing a constitution is a complicated process. By passing severalindividual controversial or complicated provisions first, the Convention could easefuture efforts for a more comprehensive constitutional reform process. TheConvention is considering more urgent reform proposals first. Next, a separate program could consider whether Ireland should adopt an entirely new constitution

The Conventions Diversity

The Convention consisted of a widely diverse group of people whodeveloped the recommendations ultimately considered by the government and the200 Convention on the Constitution,Convention on the Constitution Terms of Reference, 1 (last visited Dec. 12,2013),available at http://www.constitution.ie/Documents/Terms_of_Reference.pdf.201 Convention on the Constitution, FAQs: What Will Happen After the Convention Has Reported to the Oireachtas? (last visited Dec. 12, 2013),available athttp://www.constitution.ie/FAQs.aspx.202 Fionnan Sheahan,Gay Marriage Referendum in 2015 as Part of a Special Constitution Day, I NDEPENDENT.IE, Nov. 25, 2013,available athttp://www.independent.ie/irish-news/gay-marriage-referendum-in-2015-as-part-of-a-special-constitution-day-29728517.html.


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voters. Members of the Parliament only accounted for one-third of the total participants.203 The 66 citizen members of the Convention held a voting majorityover all reform proposals, including those directly impacting Parliamentmembers.204 Members of the public came from a variety of backgrounds and thus brought their unique experiences to the decision-making process. Furthermore, because the citizen delegates did not hold positions within the government, theydid not make decisions aimed at preserving their own political power.

Public Input and Transparency

Despite the criticisms mentioned above, the Conventions structure hasallowed for substantial public input into the constitutional reform process, as wellas for the transparent release of information to interested parties. For instance theConventions structure meant that the majority of delegates came from theelectorate.205 Additionally, outside stakeholders could submit proposals andreports directly on the Conventions website,206 where they were available for public review.207 Outside experts could also conduct presentations during the plenary sessions.208 Furthermore, the Conventions delegates traveled throughoutIreland to receive regional input on what other reform proposals should beconsidered. Together, these avenues ensured that the Conventions delegates werereceiving information from a variety of sources and had access to a number ofviewpoints, reports, and ideas.

In addition to engaging with the Convention, members of the public wereable to observe the decision-making process in a variety of ways. TheConventions website offered an excellent resource for plenary agendas,recommendation reports, and schedules.209 The website also included livestreaming of the plenary meetings open sessions, as well as archived copies of

203 Convention on the Constitution,Convention on the Constitution Terms of Reference, 1 (last visited Dec. 12,2013),available at http://www.constitution.ie/Documents/Terms_of_Reference.pdf.204 Convention on the Constitution,Convention on the Constitution Terms of Reference, 3 (last visited Dec. 12,2013),available at http://www.constitution.ie/Documents/Terms_of_Reference.pdf.205

Convention on the Constitution,Convention on the Constitution Terms of Reference, 1 (last visited Dec. 12,2013),available at http://www.constitution.ie/Documents/Terms_of_Reference.pdf.206 Convention on the Constitution, Make a Submission (last visited Dec. 12, 2013),available at http://www.constitution.ie/SubmissionCaptcha.aspx.207 Convention on the Constitution,Submissions (last visited Dec. 12, 2013),available at http://www.constitution.ie/Submissions.aspx.208 Convention on the Constitution, Meetings (last visited Dec. 12, 2013),available at http://www.constitution.ie/Meetings.aspx.209 Convention on the Constitution, Meetings (last visited Dec. 12, 2013),available at http://www.constitution.ie/Meetings.aspx.


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