Enda Kenny
Question:1 Mr. Kenny asked the Taoiseach the proposed remit of the Oireachtas All-Party Committee on the Constitution; and if he will make a statement on the matter. [24348/02]
Ceisteanna – Questions. - All-Party Committee on the Constitution.
Joe Higgins
Question:2 Mr. J. Higgins asked the Taoiseach the proposed remit of the Oireachtas All-Party Committee on the Constitution. [25675/02]
I propose to take Questions Nos. 1 and 2 together.
The revised terms of reference are to complete the review of the Constitution already undertaken by the previous two all-party committees. The Constitution can, broadly speaking, be divided into two distinct areas; the articles dealing with the institutions of State and those dealing with fundamental rights. The previous two committees completed the review of the institutions of State except for those relating to Government.
The Lenihan committee also reported on the article relating to the right to life, at my request, and in connection with the issue of abortion. The work of the new committee will be to (i) review the articles on Government and thus complete the review of the institutions of State; and (ii) complete the review of the articles on fundamental rights.
The Government has requested the committee to give priority to the articles dealing with property and those dealing with children.
I am aware that it is a matter for the new chairman and the members of the committee to set their own work programme within the context of the terms of reference. I understand they held their first meeting today.
I thank the Taoiseach for his reply. The All-Party Oireachtas Committee on the Constitution made a recommendation that North of Ireland participation in the Seanad would be enhanced. Is the Taoiseach in favour of this and will he comment on it? The committee also recommended that university representation in the Seanad, in isolation, be discontinued. Does the Taoiseach support that view or does he regard someone who achieves any third level qualification as eligible, in the words of the committee, for selection as a Member of one of our core democratic processes?
The committee recommended that the minimum age of eligibility for the office of President be changed from 35 to 18 years. It indicated there was no logical reason for setting the age at which one becomes eligible to be President to be any different from that at which one can exercise a vote, namely, 18 years of age. Does the Taoiseach favour those three concepts?
Those three questions might go outside the questions asked by the Deputy and Deputy Higgins.
Perhaps I can give a brief reply to the Deputy.
Okay.
To answer the questions in reverse order, I do not agree with the committee's view on the question of reducing the age from 35 to 18. To be President of the country and a constitutional office holder of the State, one has the responsibilities of making decisions on legislation to be referred to the Council of State, and I do not believe an 18 year old can do that. There should not be any change in that regard. The committee's argument was a simplistic one in that the President was just another person, but that is not the issue. The issue is the job and the job entails a person having a broad knowledge, and I do not believe a person can have gathered all of that knowledge at 18 years of age. Perhaps a person has not gathered it at age 35 either but in my view the argument does not hold.
On the other issue about representation in the Seanad, the committee points to a valuable precedent established by the contributions of past and present Senators from the North and I agree it would be valuable to extend and formalise the existing practice, which opens up options in the committee. The options brought forward by the committee deserve careful consideration and there is a move to start a more general review of the Seanad, with which I agree. That review should examine representation from the North, to which I am agreeable, and it should also deal with the aspect of university representation because there are clear inequalities in the university representation issue which should be examined in any review of the Seanad. In any event, it is a long time since the present structure of the Seanad came into existence and it would be a useful exercise to have a review of the Seanad on an all-party basis.
I thank the Taoiseach for that reply. Perhaps in the context of the broader reform of the Seanad some elements of the document, A Democratic Revolution, drawn up by the late Jim Mitchell on behalf of the Fine Gael Party, might be considered.
In that context, will the Taoiseach consider allowing MEPs to attend and address the Seanad on issues of importance to the country in a European context? Will the reform include references to emigrants appointing Senators to vote on their behalf? This issue was discussed on Private Members' business a number of years ago and while it is quite complex, the emigrant vote has consistently referred to the right of participation in the democratic system here.
On the Taoiseach's reference to abortion, is the Government likely to give consideration to the consequences of the last referendum? In other words, is it intended at some future time to produce legislation giving effect to what is currently contained in the Constitution?
When does the Taoiseach expect the referendum to take place on the next European Union treaty, following the next intergovernmental conference, which I am sure was discussed by the Heads of Government in Copenhagen on Friday?
Deputy Kenny asked about allowing MEPs the right to debate in the Seanad. The report stated that MEPs elected in both the North and this State would be entitled to have debates on EU matters in the Seanad. The Government supports this and the necessary procedural steps in dealing with it.
No consideration has been given to the abortion issue since the referendum in March. Ultimately, consideration will have to be given to it.
The question of allowing emigrants to vote has been looked at several times but there is no easy way to address it. The idea of having Irish voting blocs abroad did not find favour in any of the reviews because of the numbers involved and our system of proportional representation.
A referendum on an EU treaty arising from the recent intergovernmental conference may be held in 2004, but it is more likely to be 2005. When the convention was set up it was to have completed its work by February, but it will only discuss the first draft text on 20 January. It will attempt to work more quickly. If it was to be very efficient and there was to be little debate or argument one could imagine it being cleared next year. Debate on the Nice intergovernmental conference – which dealt with only a small number of issues compared to this one – took 12 months. I know there was not a presidium or convention before this but the issues involved are sizeable. I would be surprised if the debate on many of the institutional matters – such as the Charter of Fundamental Rights and issues on the future of Europe – does not open up when it moves from the presidium and convention into the wider political arena.
Will the Taoiseach consider extending the remit of the All-Party Oireachtas Committee on the Constitution to examine Article 43 to further delineate that the right to property carries responsibilities? Presumably Article 43 is one of the reasons why the Taoiseach has not moved in the past five and a half years to stem the outrageous profiteering in building land. This, of course, is apart from the closeness of Fianna Fáil to developers and the donations it receives from them. Does the Taoiseach agree this matter should be examined as a matter of urgency? Amendments could be brought forward to prevent the uncontrolled profiteering we have seen and to reduce the price of homes so all those in need of a home could buy one at a reasonable price. If this were done, and if Michael Davitt and others involved in the Land League returned, they would not be as shocked – as I am sure they would be if they saw what is happening with this abuse of the Constitution.
I am sure the Deputy would agree that the committee on the Constitution should examine the argument dealing with property. Such an examination of those rights would be important.
There is some truth in what the Deputy said in that there is always a view that we cannot do much in this area without changing the Constitution. Therefore, the proposed examination would be worthwhile. I agree that one aspect of this issue is that the current system allows for profit taking and for the cost of land to rise, which directly affects the cost of building land. That is not the only issue involved.
Another issue is the lack of zoning. In development plans a line is drawn around an area and development is restricted outside that area. That creates a problem in that land within such an area attracts high money. We create that problem ourselves by way of our local authorities and systems in a country in which there is plenty of land. We restrict development under the planning regulations. Maybe it is right to do that, but that is the reason land in zoned areas is excessively priced. Developers then buy land at a higher margin and the circle continues, which creates a major difficulty.
The reason I asked the Taoiseach to extend the remit of the committee to examine this article is to remove that precise argument. My interpretation is that Article 43—
It is not appropriate to hear the Deputy's interpretation of that article at this point. He is going into too much detail.
I wish to clarify the issue with the Taoiseach by asking him a question. Does he agree that it could be clearly drawn from that article of the Constitution that the exigencies of the common good should come before profiteering, but since the Constitution is used as an excuse—
The Deputy cannot go into detail on the Constitution. Has he a question?
I am glad that the Taoiseach will request the committee to examine the Constitution.
I ask the Taoiseach to indicate to the House where all this is going. What is the point of it? We had the Whitaker report compiled by outside experts. I believe we have had seven reports from this Oireachtas committee.
Yes.
That is an awful lot of reports. Is the Taoiseach aiming towards a new Constitution being put to the people or are we merely engaged in this exercise with a view to possible minor amendments to the Constitution at some stage? It is a long time since 1937 and maybe the Taoiseach is preparing to emulate the original author by putting to the people a document that would be more in keeping with modern times. Is that the Taoiseach's objective?
As I spelt out in my reply, we have focused on two sections of the Constitution, the articles dealing with the institutions of the State and those dealing with fundamental rights. We have asked the committee to complete its review of the institutions of the State and to make proposals for implementation.
We have had a number of referenda. Five issues were put to the people in the previous Government's first year in office. Those were followed by the local government constitutional issue and following that three issues were put to the people on the same day, although a Judiciary issue remains outstanding. We also had a referendum on the right to life and two referenda on the Nice treaty. There have been an enormous number of referendums. Each time we are told to hold it on one issue and not to confuse matters, and that is another problem.
I would like to take a block of the work already undertaken on the reports and deal with it as a whole. I have inquired of both legal people and officials over the past year or so how that could best be done, how we could take several of these amendments together, because they must at least be dealt with in sections.
There are seven areas covered by seven reports. Even if they were divided into the two areas I mentioned, they would still have to be listed in a way whereby the people would understand them. Report one dealt with general constitutional issues. Report two dealt with the Seanad, and that debate is ongoing. Report three dealt with the Presidency. Amendments have been formulated for this area and it should be possible to take a block of them and put them to the people. Some work has been done on the courts and the Judiciary and some remains outstanding. We decided not to proceed with the referendum in the courts area and proposals have been formulated to deal with that in another way. We have dealt with the abortion issue and the people rejected the referendum. Report six dealt with referendums, and that has been implemented. Report seven, which is not completed, deals with Parliament.
A number of questions arise from these reports. I have given them to Departments to obtain their comments, mainly the Department of Justice, Equality and Law Reform because it is generally but not exclusively the relevant Department. I would like to put an omnibus series of these amendments to the people, and it is a matter of finding a way to do that. Otherwise, we would move to the Swiss model and hold regular referendums.
The matter has moved from the committee established on foot of the Whitaker report to the All-Party Oireachtas Committee on the Constitution chaired by Deputies Brian Lenihan and Jim O'Keeffe. We have tracked it all the way through, despite the historically high number of referendums we have held in the past five years. It is a matter of finding an order for the amendments whereby we can put them to the people in blocks. If we put them individually, we will never reach the end of the process. I must bow to superior legal knowledge in my search to see if it can be done. I have asked the all-party committee to examine the proposals on implementation and will give it the work I have done over the past year on this issue, which is based on legal work.
Has the Taoiseach a timeframe for when he might arrive at definite conclusions on whether he can proceed chapter by chapter or whether he must proceed with the complete document? Has the Government plans to revise the Constitution in respect of citizenship automatically being conferred by birth in the jurisdiction?
There is no legislative proposal on that matter, although a case is before the courts. I understand they have not ruled on that case which was taken some time ago.
Regarding the timescale, I have done as much as I can on some of the blocks of work. It is a question now of seeing if we can work with the committee. On the fundamental rights issues, we have blocked off equality before the law, which is Article 40; personal rights, which is Article 43; personal liberty, which is Article 44; freedom of expression; freedom of assembly; and freedom of association.
We have blocked together the work of the committee on most of these articles. All the work has come from the all-party committee or from the committee established on foot of the Whitaker report, which was a general report. Most of the amendments arise from the work done by Deputies Jim O'Keeffe and Brian Lenihan as Chairmen of the all-party committee. I will be able to present to the committee a fairly tight report of what we can do and the views of Departments. It is then a question of whether we can take a number of the amendments together. If we had to take them all separately, it would be very long drawn out. The Whitaker report came out in 1995 so about seven years' work has gone into this and it will take a few more to finish it.
Does the Taoiseach have a timeframe for conclusion?
When Deputy John Bruton set up the 1995 committee it was supposed to do its work in two years, but apart from getting the report that was not possible. I would like to do this in the next few years. Realistically the examination of it will not reach an end for another year or two and it depends on how long that takes.
It did not take Archbishop John Charles McQuaid and Éamon de Valera that long.
The Deputy should allow the Taoiseach to continue, as I want to let some other Deputies in.
The world has got more complicated since then.
About three of the seven reports are effectively implemented and the other four are there. There are no enormously urgent things to do. We have prepared drafts on the gender proofing of both texts of the Constitution. No work has been done on the trial of offences. Some work has been done on the directives of social partnership. Some work has been done on the new provisions relating to the Ombudsman, environmental issues, and human rights commission.
As the work has progressed I have tried to keep it in the two blocks – institutions of State and fundamental rights. Although the Constitution was not originally drafted in that way, these issues fall neatly under those two headings. Each time there has been a report, I have used those two headings and the same is true for each article. I intend to give these to the committee members. If the committee believes we could take a block together, we could do this quite quickly. However the legal view and that of the committees to date is that each issue has to be taken separately. I am concerned we would never get to the end of it on that basis. The Deputy asked for my view and that is to take the issues as a block.
I compliment my constituency colleague, Deputy O'Donovan, who, I understand, is the new chairman of the committee and I wish him well. I am somewhat frustrated by the Taoiseach's response. There seems to be confusion arising from what the Taoiseach says, as to who will implement change. From some of the Taoiseach's replies, I gathered he was referring some issues to the committee for implementation.
Following Deputy Kenny's reference to the Seanad, the Taoiseach said this issue was being dealt with by the committee. Who now will make decisions? Everybody agrees the Seanad in its present form is an anachronism – just as the House of Lords was and possibly still is. However, at least that House introduced changes there. When will we see changes in the Seanad? Who will decide on what those changes will be? When will a presentation be made to the people to change the Constitution in that regard? In answer to the question specifically asked by Deputy Kenny, the Taoiseach said there should be a general review of the Seanad. There have been two general reviews by the committee. What will now happen? This is where a certain element of frustration arises.
I do not seek to confuse Deputy O'Keeffe. I stated that I was asking the committee only on the implementation of those proposals. I am not referring to the committee work it has already done. Last year I gave the schedule of work that came back and there must have been more than 100 different proposals from the committee. The point I made to Deputy Rabbitte was that we could not put 100 separate questions to the people or even have a series of referendums. There has to be some way of taking them in blocks, which is what I have been endeavouring to do. I can understand the committee's views based on the reports going through. I do not agree with all its decisions and I have mentioned some of them already to Deputy Kenny. I would like it to give its political view on how we can put these proposals, as it will be for the Members of this House to try to sell them to the people and get support for the changes. We have to find a format for doing this. I am not referring back to it any of the proposals that have already been made.
I have two reports on the Seanad, about which four reports have been produced. The major difficulty is that they have all been done by politicians and all differ significantly. If the current batch of politicians agrees with the findings – I have asked, in the first instance, Members of the Seanad for their views—
The Taoiseach will wait for a long time for agreement.
We will get agreement on some issues and we will not get agreement on others. The exercise will not take too long. While some issues are clear, we will probably never get agreement on others. We should go with that. The Seanad needs to be reformed and I am committed to reforming it. We should not allow the matter to drag on.
With regard to some of the other areas, it is simply a matter of finding a mechanism to put them before the people again. This will entail doing a great deal of work on issues such as gender and on the format. Once the committee has seen my suggestions, it will accept that it is not easy to devise a method to put the matter before the people again. However, I hope we will be able, at least, to finalise much of our work within 12 months. The outstanding work could then continue for a further period.
Does the Taoiseach believe an omnibus proposal can be made?
I am not a legal person and, as my colleagues will know, never purport to be one. I believe it will be possible to make such a proposal and understand other countries have done so. I am informed it is legally difficult.
It is problematic.
Yes, the legal advice I have received from the current Attorney General, the previous Attorney General and several of their predecessors – it was certainly the view of the Whitaker report – is that omnibus amendments are legally problematic. While I do not wish to get into this area in detail, the difficulty is in achieving—
This is a fundamental issue which needs to be clarified.
Precisely, and I cannot resolve it. I can only give the legal view I have received. If we are not able to present an omnibus amendment, it will mean the schedule I circulated last year, which contained every article, every decision and the views of the Departments, will have to be taken item by item. I do not know how—
Alternatively, the Taoiseach could put a new document to the nation.
Yes, in that case the logical thing to do would be to wait until all the work has concluded. If the view of a number of eminent legal people is that proceeding in such a way is legally problematic, obviously I will not recommend such a course. However, there has also been a considerable amount of sitting on the fence in regard to this argument. Deputy Jim O'Keeffe will be more familiar than I with people's views on these matters. If the legal advice is correct, we may as well wait until the end of the process and try to redo the whole thing, which would take a few years.
Ar dtús báire, is mian liom a rá gur ball nua-cheaptha mé den Choiste Uile-Pháirti ar an mBunreacht agus gabhaim comh ghairdeas leis an Teachta Ó Donnabháin as a cheapachán mar Chathaoirleach don choiste.
Following on Deputy Kenny's earlier question, does the Taoiseach agree that part of the committee's remit should be to address some of the inconsistencies between the Irish and English language versions of the Constitution? Given that the Irish language version is the authoritative text legally, a referendum should not be required for this purpose. The minimum age of the President is one such inconsistency. One version indicates it is 34 years, while the other indicates it is 35 years. This and other inconsistencies can be rectified without resort to a referendum.
Does the Taoiseach agree it is part of the Government's remit, rather than that of the committee, to act on the outcome of a referendum and take into account, for example, public support for an issue such as neutrality and, therefore, include it in the Constitution?
I welcome the inclusion of Article 43 on the agenda. It seems extraordinary that for three decades since the 1973 Kenny report, builders have had such a hold over successive Governments in relation to Article 43 on private property.
As regards the Constitution, as Deputy Rabbitte said, it seems as if there is a new document in the wings. Is there a greater need to monitor the work of the Convention on the Future of Europe given that it is intended by participants from other countries that there be a new constitution for the European Union? Is it not more important to focus on that as it is in formation and to ensure the all-party committee has a strong role in monitoring it?
Deputy Sargent asked about two separate issues. I already said the property aspects are included in this and I have asked the committee to deal with it up front. The question of a new Constitution has already been dealt with and we will see how the committee works. At least there is a logical sequence which I can give the committee and I will do so at its January meeting.
Valéry Giscard D'Estaing is the chairperson of the presidium and of the convention. He has stated that he thinks it more appropriate that we should have a new treaty, it would be too difficult to amend the existing treaties and that a comprehensive new treaty should be brought forward. That view is not shared by everybody. I do not have a difficulty with it but a lot depends on whether the Charter for Human Rights will be an annex to the treaty or part of it. I believe the argument will be that it should be part of the treaty. I see advantages in that, but I also see difficulties. The advantage is that there is a body of progressive and useful social legislation. Why should it not be in the treaty as it covers people's rights? The downside is that it could be interpreted as overriding other aspects of our Constitution. I can anticipate the lobbying from the other side on that. The Swedes have found a mechanism to deal with that whereby the full charter is included and amendments are made. The charter stands unless an opposing view has been passed by the people and it has to be taken into account.
Members will recall that when the charter was negotiated and agreed, it got political but not legal support. The ETUC in Europe is lobbying extensively for that document to be brought in as is the Irish Congress of Trade Unions and many individuals who believe these rights should be enhanced and included in the treaty. I do not believe I will oppose that view, but we will have to see how it goes.
Does the Taoiseach accept there is a difficulty with this committee which has been up and running for a number of years and is generating a lot of work and more and more recommendations and reports but less action as time passes? There is a danger that pattern will continue. On the Government's approach, what is the Taoiseach's view on the appropriateness of considering a new Constitution in parallel with the other options he has outlined rather than leaving the idea of a new Constitution to the end of the process which will, invariably, take longer than he expects and that it should be taken up by the all-party committee for consideration? Significant time and energy was expended both by the committee and the Oireachtas on a constitutional amendment on abortion, which was ill-thought out and was rejected by the people. At the time three options were provided. The legislative route and the constitutional route were two options. The Government chose the latter and its justification for doing so was that there was a difficulty in regard to medical practice. Does the Taoiseach accept the difficulty still exists and it is not acceptable, politically or otherwise, to ignore it without considering the legislative route to deal with the outstanding issues, which were raised by the Government during the constitutional amendment debate but subsequently were not resolved by it?
The Deputy raised two issues and I will deal with the second one first. She will recall the Government was committed to a Green Paper, preparing a position paper followed by a referendum and that process was undertaken. That resulted from a long process and the Oireachtas All-Party Committee on the Constitution, chaired by Deputy Brian Lenihan, played its part. The Government followed a particular route that was rejected by the people.
The Deputy is correct that rejection did not change anything and the issue must be examined again. As she will be aware, there was enormous opposition to some of the proposals by people on different sides of the argument. The issue has not been resolved and I agree with her that it must be taken on at some stage again. The limbo continues and it will have to be taken up again. I am not sure when but the Minister for Health and Children can take it up. We have debated the issue non-stop for five years and we need a rest from it for a while.
What about the poor doctors?
I did my bit and I lost but that is the reality.
On the other question, I am totally open to the Deputy's suggestion regarding the committee. I have genuinely tried to track all the changes. One of my officials co-ordinates all the various questions that come up and I am taking it there are many more to go. Perhaps, as Deputy Rabbitte stated, an examination in the context of the totality of the Constitution is a better way. I would be glad to hear the committee's views.
The major parties have agreed on most constitutional referenda down through the years and, if the work of the committee is to be implemented, there must be agreement between the major parties. The question is how this can be done legally and, even if it took a few more years to do it, it would be a job well worth doing. I assure the Deputy I have managed all the changes and work is available to see how we best finish them. We should address the remaining issues because there are many other difficult ones ahead. I am open to considering whether we should wait to deal with all of them together under a new Constitution or take them in blocks. I assure the Deputy the officials involved would like to take them collectively but they continue to point out that politicians must decide how best to have them passed, not them.
Given that it is early in the lifetime of the Government and taking its record on referenda into consideration, will the Taoiseach consider asking the committee charged with reviewing the Constitution to agree a wording to enshrine the rights of people with disabilities in order to ensure their right to education? It is probably the only issue that would be passed unanimously by people if put to a referendum. I agree with the Taoiseach all the other issues would be questioned but enshrining the rights of people with disabilities in the Constitution, including the right to a fair education, would meet with considerable support.
The disability legislation has been drafted and I know there is a campaign to enshrine some of these matters in the Constitution but we must get the legislation first.
Regarding the overall issue, in the past few years we have dealt with Cabinet confidentiality, the Amsterdam treaty, the British-Irish Agreement, the Local Government Act, the death penalty, the International Criminal Court, the Nice referendum twice and the pro-life referendum. There has been an enormous amount of legislative change, more than in any other period, and no doubt the issue of disability will come up for discussion again. The priority at the moment is to have legislation which is acceptable to the various groups campaigning on the issue, and I hope we are near the end of that stage.