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Seanad Éireann debate -
Thursday, 4 Feb 1988

Vol. 118 No. 8

Fiftieth Anniversary of Bunreacht na hÉireann: Motion.

I move:

That Seanad Éireann notes the 50th Anniversary of Bunreacht na hÉireann.

Tá an-áthas orm an deis seo a bheith agam labhairt i Seanad Éireann ar an ábhar tábhachtach seo. Tá sé feiliúnach go dtabharfaimís aitheantas anseo do chomóradh Caoga Bhliain an Bhunreachta, a raibh tromchiall mhór ag baint lena achtú.

Inghreamaithe san tairiscint, tá an cheist go ndeánfaimís ath-bhreithniú ar an mBunreacht féachaint an bhfuil sé chomh maith agus ba chóir, an bhfuil sé ábharach nó ar chóir é a ath-dhéanamh in iomlán.

Séard atá sa Bhunreacht ná sraith rialacha bunúsacha atá tugtha ag muintir na hÉireann dóibh féin. Ann, tá siad ag ceadú go rialfaí iad i mbealach áirithe agus leagann said amach na coinníollacha faoina dtugann siad an cead seo. Leagann an Bunreacht amach an cineál Rialtais atá againn, chomh mhaith lenár n-institiúidí parlaiminte, feidhmitheach agus dlíthiúil, ár bpróiseas achtuíl, ár gcearta bunúsacha. Is é dlí ardcheannasach an Stáit é, achtaithe ag na daoine agus ní féidir le héinne é a athrú ach na daoine.

De bharr an Bhunreachta is féidir leis na daoine bheith cinnte nach n-athrófaí na rialacha bunúsacha sin go saorthoilteanach. Cuireann an Bunreacht buanseasmhacht ar fáil a chothaíonn rialú maith.

I should like to thank Senators for affording me the opportunity of addressing the House on this very important theme. The motion that Seanad Éireann notes the 50th Anniversary of Bunreacht na hÉireann is most appropriate. The enactment of the Constitution in 1937 was, itself, a most noteworthy event. It was a milestone in our history which marked our full emergence as a sovereign, independent and democratic State. It is a remarkable tribute to my party's founder, Eamon de Valéra, the force behind the formulation of the Constitution, that it has stood the test of time so well.

In certain quarters it has become fashionable in more recent times to dismiss the Constitution as a dated document, as one that is no longer relevant to present day needs and to seek to have it thrown out and replaced by a new one. I am afraid that I cannot subscribe to that view.

Age is the hallmark of a successful Constitution. It confers substance on the framework of the Constitution and understanding of the principles enshrined in it. This is particularly the case where experience has shown that the Constitution is capable of being amended or refined to reflect changing attitudes and ideals.

Our Constitution is still relatively young by comparison, say, with that of the United States which is now 200 years old. That Constitution also had its detractors and those who, in the early formative years of that great nation, thought that it had outlived its time. Yet, the great American experiment, as their Constitution is often described, has endured and shown that its fundamental principle, government based on the popular will of the people, could survive and flourish.

The validity of such a basic framework as a constitution must be judged against a much longer timespan than a mere 50 years. In fact, the mere matter of age, however long or short, is no reason of itself to cast doubts upon its soundness or relevance or to advocate wholesale remodelling. We are not in the business of change for change's sake.

In recent years there has been considerable controversy about certain provisions of the Constitution, for example the pro-life amendment and the proposal to remove the ban on divorce, which was defeated in a referendum. It is good that we can debate such issues openly and frankly, although we would all have hoped for a less acrimonious and divisive debate. Nevertheless, these debates have contributed enormously to the political vibrancy of the State. I am sure that other debates on other issues will continue in the future to stimulate public thinking.

We must be prudent, however, in our general response to debates on contentious issues which engender such strong passions. There is an irresistible tendency to concentrate almost exclusively on such issues because of their contentiousness and to draw inferences from them which are patently invalid.

I believe that the reality is that the recent controversies over certain aspects of the Constitution are not symptomatic of a general desire for wide-ranging constitutional reorganisation. Those who advocate throwing out the Constitution in its entirety and replacing it with a new one — which they claim would be more relevant to present day needs — ignore the fact that the vast majority of its provisions have widespread public acceptance and support.

I speak here of such fundamental matters as the republican status of the State; our national sovereignty; the supremacy of the people; our structures of Government, of Parliament, of the courts; the judicial review of legislation; the primacy of the Irish language; our acceptance of the generally-recognised principles of international law in our relations with other States; fundamental rights such as equality before the law, personal liberty and habeas corpus, freedom of assembly and of speech; the right to form associations and trade unions; the special place of the family as the natural, primary and fundamental unit group of society; freedom of conscience, free practice of religion, and so on.

These also are enshrined in our Constitution but we tend to take them for granted or overlook them in the excitement generated by a small number of issues that have become contentious. The fact is that there is still general acceptance of most of the basic principles enshrined in the Constitution 50 years ago.

In the 50 years since the Constitution was enacted this country has emerged from fledgling statehood to become a mature and independent State. The Constitution, that vital framework under which the affairs of the State are organised, has given us the stability and confidence to promote our economic and social development and to look outward and find our unique place in the international community.

In 1937, the people of Ireland gave the Constitution to themselves. It is their shield and protection. All powers of Government, legislative, executive and judicial, derive from the people. Only the people can change the Constitution. It is the people's Constitution and exists to serve them. This is only as it should be.

A State can be governed only with the consent of the people. The people have made a contract, in the Constitution, with those who govern. They have also set out the conditions under which they consent to be governed. The primacy of the people is set out in Article 6, 1. of the Constitution, and I quote:

All powers of government, legislative, executive and judicial, derive, under God, from the people, which right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.

This is the essence of true republicanism and the very cornerstone of our political system.

Nowhere has the primacy of the people been better illustrated than in the history of the various constitutional amendments put before them. Many of these were judged by the people to be right and proper — for example, amendments providing for entry to the European Economic Community, votes at 18, removal of the special position of the Catholic Church and, more recently, protection for the life of the unborn. In other instances, the people exercised their prerogative and rejected proposed amendments such as proposals to change the electoral system and, more recently, the proposal to abolish the ban on divorce.

Whether or not, as individuals, we agree or disagree with the outcome in any particular case, all of us recognise that the people have expressed their will and we must be bound by this. It would be very foolish of me to pretend that each and every aspect of our Constitution is idyllic. Neither is the Constitution immutable. It contains its own mechanism for change and changes have been made — ten in all since it was enacted.

If change is desired, by all means let us consider change. However, I do not believe that we should regard individual proposals for change as being a reflection on the Constitution as a whole. Proposals for change should be approached in a precise, issue-oriented, manner. They should be fully debated and the need for change and the nature of that change specifically identified.

It must be borne in mind that constitutional change is not a panacea for political or social problems. Eighteen months ago many academic experts were diagnosing an institutional paralysis as the cause of our inability to overcome our problems when, in fact, all that was lacking was the effective exercise of resolute political will. Effective policies, carried through with determination, not constitutional change, are the answer to most of our problems.

Society, confronted by a complex social or political problem, must first seek and identify a solution. Only when a solution has been identified should a proposal for constitutional change be put to the people for their judgment, in the rare instance that it is necessary. It is not good enough to change the Constitution first and look for the solution afterwards.

Quite apart from the formal mechanism for change which it contains, the Constitution is, in fact, dynamic and capable of changing as the nature of our society changes. I think Mr. Justice Walsh of the Supreme Court covered this aspect succinctly in his address to the McGill Summer School last year. In stressing the fact that the Constitution is in the present tense and that the ultimate question remains always what do the words of the text mean in our time, he said:

The value of the Constitution is not based on any static meaning it might have had 50 years ago, but in the adaptability of its fundamental principles to cope with current problems and current needs ... the Constitution is not concerned with what has been but is concerned with what may be.

It was not intended to preserve the world of the 1930s or its society in some time capsule. Its effect was to create a new society ...

While I do not agree with all the sentiments expressed by the Honorable Supreme Court Judge at the time, I feel that the quotation is particularly relevant to this debate.

The Constitution is, and was intended to be, a contemporary document. It falls to be interpreted and applied as part of contemporary law. This is consistent with the view that it was intended to last for a long time. The fundamental rights and principles according to which the person has a right to live are judged by their meaning in the context of the present day ethos and values.

Over the years the Constitution has been developed by judicial interpretation in the area of unenunciated rights, in addition to those specifically enshrined in the Constitution. A whole body of constitutional jurisprudence has grown up in the courts and has now become part of our Constitutional heritage.

These developments represent a major achievement and, more significantly, are an indication of how the Constitution will evolve in the future. Should we run the risk of abandoning all of these benefits by starting de novo without any real assurance that the most fundamental values which we have come to treasure will be preserved? In all of the debates on this issue, I have yet to see any convincing argument advanced for removing the Constitution in its entirety.

The Constitution has stood the test of time admirably and we should exercise extreme caution before we tamper with it. Well-founded criticisms can be and should be addressed as they arise, but we should not risk all that we have achieved to date to satisfy demands for replacement which arise from a restless urge to be novel or a general feeling that it would be nice or progressive to replace the Constitution solely because it is 50 years old.

The Constitution reflects the deeply held values of Irish society both in regard to democratic Government and the recognition of fundamental rights. It incorporates the egalitarian view that, under God, power rests with the people. The small but important number of amendments which have been enacted bear witness to the underlying resilience of the values enshrined in the Constitution, and those who call for major change are out of touch with the feelings of the vast majority of Irish people who recognise that the Constitution has served and protected them well.

Let me begin by welcoming the Minister to the Seanad. It is always a pleasure to see her in this House and she has been carrying out her duties with great style and elan in Europe over the past number of months.

Her speech this morning was brief. It was eloquent on the generalities; it was fairly short on specifics, though I did find that there was a number of points on which I was in fairly fully agreement with what she had to say.

In all debates on a question as large as the Constitution, which is the fundamental basic law, the framework within which our whole system of Government and fundamental rights are enshrined, there is a great need to put the matter into its proper perspective and not to approach it in any piecemeal way as a document which can be tampered with, and also to resist the temptation to begin by advocating changes which are so sweeping that they have no chance of being accepted.

The experience of the past number of years — the years since 1959 when the first attempt was made to amend the Constitution by referendum — shows us that, as far as changing the Constitution is concerned, even when major Government parties may advocate changes, we are conservative people in this particular regard and that more harm than good can be done by taking on an issue which is perhaps from the start, and with hindsight, doomed to failure.

The most important test for any Constitution is that it is generally accepted by the people, that it is seen as a fair document, that there may even be a certain affection for the Constitution, for the document, that people can feel safe behind it and within its protective ambit. Whatever one may say about specific aspects of our Constitution, that certainly is true of the feelings of the majority of people as far as the present Constitution is concerned.

It was not always the case. It certainly was not the case in 1937 when, for a variety of reasons, those on the extremes of Republicanism saw it as merely copperfastening the Treaty. The Labour Party felt that it was not sufficiently Republican. My own party felt that Mr. de Valera was being, as they would have seen it, typically casuistical in defining a Constitution but not calling it such. It has taken the Constitution those 50 years to gain the sort of acceptance it has, although I would warn that there are many people outside of this consensus, those who were looking for a certain relief in the last divorce referendum who did not get it in the result of the will of the people freely expressed in the ballot box then. There are those who may well feel that the restrictions on the protection of private property have acted against the common good over the past number of years in specific cases, and there are others who may feel that the Constitution does not give them the full protection. By and large I think our Constitution passes the first test of any major document of this kind, that is, a general acceptance that it is a fair and just document.

One of the points touched upon by the Minister in her speech this morning was the extent to which the Constitution has been a growing and living document over these past 50 years. I would have to express a different point of view on that, that first of all, it began as a conservative document. While Mr. de Valera did bring in phrases and wordings in many cases that were new, these were largely in the symbolic areas of the Constitution.

When it came to the actual workings of Government Mr. de Valera adopted, with very few changes, this House being one of them, the basic system of Government which had served the country reasonably well in the years 1922 until 1937. In fact, he was far less radical than the framers of the first Constitution in that they at least tried to get away from the British tradition by bringing in a fairly easy form of referendum, by trying a system — which did not work — of extern Ministers, a two-tiered system of Ministers. Mr. de Valera played totally safe as far as the institutions of Government are concerned. So we began with a document which is basically a very conservative document.

It has been one of our problems in political terms over the years that there has not been any great willingness on the part of any Government to think openly and imaginatively of ways in which we might well order the political aparatus of Government differently and borrow ideas where necessary from countries outside of the British tradition. In that sense we began from a conservative base. The ways in which the Constitution could grow or develop over the years are fairly limited. In terms of amendments to the Constitution the process of amendment rightly was made very difficult, unlike the practice under the 1922 Constitution. In many ways it is far too restrictive but, with the exception of the amendment on the right to life of the unborn, the right to actually propose a change in the Constitution, for all practical purposes, rests with the Government of the day.

So there is not that access to the very first step on the way to proposing a change which was present under the 1922 Constitution and which might well be looked at if any changes are being proposed.

The result is that virtually all of the proposed changes over the years have come from the Government. Of all of the changes made or proposed, perhaps the most important was the decision to join the European Community in 1972. That was the major structural change to the Constitution we have seen in the past 50 years. That decision was, to a great extent, confirmed in the referendum last year on the Single European Act although the issue there was perhaps more precise.

The various other attempts to see the Constitution grow through direct change by the people have either failed or have been relatively slight in nature. The two attempts to change the electoral system in 1959 and 1968 both failed. I suspect not necessarily because there is not a case to be made for a somewhat different type of electoral system from the one we have at present but because of the way in which those issues were presented to the people and the perception, probably correct, that electoral advantage for one political party had as much to do with the proposal as any attempt to get a better system of election. Those two attempts failed, as did the rather ludicrous proposal to extend some form of tolerance to the more remote areas by allowing them to have more TDs than other parts of the country. The divorce referendum failed. I will come back to that before I finish.

The other changes mentioned by the Minister, for example, granting the right to vote at 18, the removal of Article 44, the changes to do with adoption, votes for the reallocation potentially of votes for the NUI and Trinity constituencies. These, to a great extent, were necessitated either by developments, in the European Community or by judgments in the courts which meant that changes had to be brought in, and they were, to a great extent, commonsense changes which did not lead to any great debate or any overall change in the Constitution.

If we look at the Constitution and how it has grown over the years and the one way in which it can be changed with full legitimacy and full acceptance — that is by a vote of the people — we find, first, that the proposals to change had been used very sparingly and, secondly, that the people by and large, have had very few radical proposals before them and, by and large, have been conservative in their reaction to the proposals.

The second way in which the Constitution might have grown and developed over the years is by way of all-party examination of the Constitution by the major political parties, an attempt to reach some sort of agreed position at that stage, and then the putting to the people of ideas which have been fully worked out. I like the Minister's phrase that:

Proposals should be approached in a precise, issue-oriented manner. They should be fully debated and the need for change and the nature of that change specifically identified. Again, we have had really only one major attempt at this type of exercise. That, of course, was the all-party committee set up by Seán Lemass in 1966 and who produced what was and still is a profoundly sensible document containing within it the distilled wisdom of what was possible at that stage, or rather what should have been possible.

Unfortunately, the very limited proposals made in the area of the laws on divorce were the first to be commented upon and were abandoned as soon as any sort of ecclesiastical displeasure was expressed. We threw out the baby with the bath water on that occasion. That experience has dimmed the ardour of Governments over the years as far as any sort of repeat of that exercise is concerned. Nonetheless that was a great pity because it was a very positive document and its great merits lay in the sensible nature of the proposals, i.e. that they should have been capable of being put before the people. I believe most of them would have been accepted.

The other major attempt from within these Houses to focus attention on constitutional change was the proposal made by Dr. Garret FitzGerald which was named by the media the constitutional crusade but which did, in the early eighties, attempt to focus attention on the Constitution in two respects in particular: first, the Constitution, as it itself might well have been a barrier towards better relations between the people of this State and those of Northern Ireland and particularly the Constitution as it might well have impeded any form of rapprochment leading to better relations and better political structures between the two parts of the island; secondly, an attempt to look at the Constitution to see if some of the strictures of some of the proposals of 50 years ago were not unduly restrictive and indeed may well have been hindering the intentions of the people who wrote and endorsed the Constitution. That crusade, such as it was, did not evoke the type of positive response which one might well have thought it deserved to evoke. While much of that debate was carried over into the New Ireland Forum and the findings of the New Ireland Forum, some of it in fact found expression in the Anglo-Irish Agreement. Nonetheless it was a process which deserved to be given greater consideration than it was given.

The third area for growth over the past 50 years has come from a source which Mr. de Valera expected it to come from, that is, from the Supreme Court. In 1937 we did not have any tradition of a judicial review. We had a very conservative judiciary who had a very restrictive view of their own role as far as the striking down of legislation was concerned. Although signs had begun in the forties, it was really only under Cearbhaill O'Dálaigh as Chief Justice that this process of pushing back the frontiers of judicial interpretation of the Constitution began. This is not an area of great expertise for me but over the years there have been various ebbs and flows as far as the role of the courts is concerned in interventions and judgments.

Most of the changes we have seen in the interpretation and in the role of the Constitution over the past number of years have come from this particular source.

I note with interest the quotation from Mr. Justice Walsh, one of the great defenders of the Constitution, at the McGill Summer School. It is precisely this interpretation which gives me a certain amount of unease when I view the role of the Supreme Court in recent times in this whole area of Constitutional interpretation.

I have to say, for a start, that I have agreed with most of the major decisions taken by the Supreme Court on questions of constitutional interpretation over the years. I would accept very fully that, in many cases, the need for the Supreme Court to take the stance it did, to make the decisions it made, was because the Government of the day and the Houses of the Oireachtas had not faced up to very specific and immediate problems, because issues either had been dodged, or had been put on the long finger, or because there was not the political courage to take the issue head on.

We have had the various cases over the years, the Murphy case, the McGee case, all of which led to very profound changes in the whole way in which our public life is conducted and which ultimately forced Governments to become involved in major changes in the law. In all of these cases the Supreme Court was in the vanguard of change rather than being seen as some sort of reactionary hyper-conservative part of the State. Obviously I would have worries about some of the decisions taken. I said at the time that I was concerned and somewhat puzzled by some of the judgments in the case of the Single European Act. Nonetheless, on balance I have to say that most of the decisions were ones with which I agreed, and the overall effect has been beneficial.

What I would question, however, is whether it was ever intended by Mr. de Valera that the Supreme Court would, in effect, become the fourth House of the Oireachtas that it would have this particular role which was not intended. While the decisions may have gone, in the main, the way I would like them, I still worry about giving a role as important as that to a group of people who are, after all, fallible and human, who will have the prejudices of some of the rest of us, who will be very much products of their own time, of their own social class, of their own educational and cultural upbringing and so on. This is a question which needs to be looked at and redressed. I suspect that the blame for this lies much more in the Houses of the Oireachtas than it does with the way in which the courts have interpreted their role over the years.

I believe that the way in which judicial review has developed and been exercised — and I am being very careful in saying that there is no criticism of the courts involved in this — the strongest argument there is at present for a very hard look at the way in which the Constitution has developed. Perhaps more important from our point of view, it is also the strongest argument in favour of us in both Houses of the Oireachtas taking a very critical look at the way in which we scrutinise legislation going through. Far too often at the end of a session, we see a Bill rushed through because it is convenient for the Government of the day to have it rushed through, because there is some perceived immediate sense of urgency. Frequently we have seen — and we saw very recently — a Bill rushed through in the last days of the last Government, a Bill which was then found to be unconstitutional with enormous administrative and practical consequences. This happened because the Oireachtas did not exercise its proper function of taking its time and examining the legislation, whatever the inconvenience to the Government of the day, whatever the inconvenience to the Members of the Houses.

It is on this factor that I would like to make two points. The first is the need for a much more elaborate system of committees for scrutinising legislation. We do not have that within our system. In regard to, for example, the Companies (No. 2) Bill, which is before this House at present, a Bill of something like 200 sections and enormously complicated, there is a case to be made which is very difficult to gainsay for a specialist committee of both Houses to examine it clause by clause with access to the best independent legal advice. I believe there is much legislation that goes through which would benefit from that type of constant parliamentary scrutiny, especially within the constitutional framework, so as to ensure that the Supreme Court is not called upon to deal with sloppy or badly thought out legislation.

The second is the role of this House. The document proposed by the Progressive Democrats, as people know, proposes the abolition of this House. But if our experience over the past 50 years tells us anything about legislation, it is that we cannot be too careful; we cannot spend enough time scrutinising legislation, examining the possible consequences, and examining the implications in detail. That is why I believe that if ever there was a role for a second House it is now in this context. That does not mean to say that we might not be a very different type of second House, that we might not have a different type of electoral system, that we might not have representation from groups who are not here at the present time.

All of these arguments have been made and are being examined by a special committee of the House at present. Ultimately the case for a strong, vigilant, well-informed and well-endowed Seanad is one which, in the context of the Constitution, is unanswerable.

When we come to look at the details of our Constitution — and in the very short time available to me I can do that only in a very superficial way — I note that the Minister was very careful not to be very specific or give any hostages to fortune as to types of changes that might or might not be on the agenda for the present Government as far as constitutional change is concerned. There are a number of areas which we could look at with some degree of profit.

I am sorry to interrupt. I regret this noise. It has got to the point where it is hard to hear. I have sent word to the superintendent.

If I could just go back slightly to look at the Constitution. I suppose the biggest single weakness in the Constitution is that it is too much a product of its time. Too much of the detail and of the particular philosophy of the thirties, especially as seen and experienced by Mr. de Valera, is written into the Constitution, and unnecessarily. These issues have been discussed at length in the past. For example, the tendency to equate the word Christian with the prevailing Catholic views at the time on education and social welfare and on the role of women, even the terminology used in parts of the Constitution, were unnecessary. It would not be offensive to any Catholic today if certain parts of the wording were to be changed. It certainly would not affect the way in which people either live or think within the State, or behave towards each other.

I believe that the nature of the property clauses in the Constitution was not properly thought out at the time, that as some recent court cases have shown, there are, some very real problems there as far as the reconciling of what one might call the common good with the rights of private property are concerned. Mr. de Valera who was always a champion of the small person, the small farmer, the landless labourer and so forth, certainly would not have intended to write into a Constitution the defence of private property which finds itself enshrined there at present.

With reference to Northern Ireland, the Constitution reflected the prevailing Nationalist ethos at the time. The thinking of Mr. de Valera, as written into the Constitution, was very little different from the thinking of Dick Mulcahy, or of Ernest Blythe, or those who were on the opposite side of the old Sinn Féin divide to him. What we find there is that the claims on Northern Ireland are far too simplistic. They are based upon a view of the inevitable unity of this country based on our terms that Unionists would either at some stage see the error of their ways and be happy to live in a Gaelic Catholic country with a Gaelic Catholic Constitution, or else they would simply fade away.

The Constitution in that sense shows no subtlety, no sensitivity and little understanding of the realities of Northern Ireland as most of us painfully and slowly and with difficulty have come to learn and understand them over the past ten or 15 years. In that sense our Constitution is very much a blunt instrument. It reflected views of that generation which are very different to the realities which governments and politicians on both sides of the divide and in both parts of this island have to deal with today. It was the dominant view of all parties at the time. There were very few people around who thought differently. The occasional person like Frank McDermot, who could stay in no party because his views were so much at variance, was one of the few people who could point out the dangers we were storing up.

I believe there is no real place in our Constitution today for Articles 2 and 3. There are other ways in which we can express our aspiration to an eventual form of unity, but in so doing we have to spell out the non-threatening nature of what we mean by Irish unity. We have to spell out the generous concept we have in mind of Irish unity. We have to spell out the sort of accommodation all of us would see as the very basis for such form of Irish unity. Also we have to spell out our recognition, which the New Ireland Forum and the Anglo-Irish Agreement do, that first of all we recognise, accept and wish to express the separate sense of identity, the desire to be British and to have their Britishness expressed of the majority of Unionist Irishmen in Northern Ireland.

At present Article 2 and 3 either intimidate Unionists or are an excuse to Unionists not to involve themselves in real talking. They do nothing to advance the cause of Irish unity. They are blunt; they act as a smokescreen and a distraction away from the real issues. In the short time available to me I would like to touch very briefly on one or two issues.

The divorce issue has been resolved for the present. The great tragedy about what happened over the divorce issue is that on the one hand there was a very generalised feeling that something needed to be done, that there was a case to be answered, that the present situation was far too restrictive and led to a great deal of personal individual hardship and injustice. The Government produced the most restrictive formula proposal it could do. That was defeated for a variety of reasons. It was not found to be acceptable. Shortly after the proposal we still see in the opinion polls that up to 70 per cent of people believe there should be a change in the law. That problem has not gone away. It may have been shelved. The problems it was designed to resolve certainly are greater today than they were a year ago. The reaction from Government has been paltry, if not non-existent, as far as those problems are concerned.

I would hate the word to go out, or the feeling to gain ground, that the problem has been resolved or that Parliament can now wash its hands of this issue. There is a great deal, even within the present framework, that could be done to make good the promises, some of them very glibly made by some leading churchmen and leading supporters of the anti-divorce campaign just over a year ago. Another aspect of the Constitution which would bear looking at is the electoral system, but there is no time to go into that now. I believe in many ways we have the worst of all worlds with our electoral system. There is a good deal of general feeling among all parties and many politicians that at least it deserves a hard look. Various other aspects like the directives on social policy which are largely meaningless could be looked at.

May I conclude by coming back to a point made towards the end of the contribution of the Minister for State and that is the whole question about how we amend the Constitution if there is a case to do so. We have seen from recent experiences the problems which can arise from an amendment. Never in the history of the past 50 years has our society been so driven apart as it was during the so-called pro-life amendment and during the divorce amendment. The debate was characterised by a great lack of charity and understanding. It showed tremendous depths of intolerance and hatred which are present in some parts of our society. That amendment procedure is not something, I think, any of us would lightly want to embark upon again if the consequences were going to be much the same.

Also, we have seen in the amendment procedures the role which pressure groups can play, the undue influence they can exert, the way in which they can hijack entire political parties at times of close elections and times of high emotion. None of us wants to have the experience again of seeing small, unrepresentative but occasionally vicious pressure groups exerting a control and an influence which they would not get in straight support from the people. We must always realise the vulnerability of our whole process to small but powerful pressure groups, whether they are on the left or the right, whether extreme Catholic or extreme liberatarian. I do not care where they come from. We have to be conscious of the vulnerability of our process.

I believe the time is right for a restoration of some form of committee such as the 1966 committee. There is a solid basis there from which we could develop. There is a need for all-party consensus if proposals are going to have any hope whatsoever of general acceptance. I believe that a parliamentary committee of all parties and of both Houses is a place in which changes should be discussed and teased out. I reject the de novo approach. There is too much in our Constitution that is worthwhile. Too great a body of jurisprudential wisdom has grown up over the past number of years to easily throw it away. Stating de novo would cause practical problems, could lead to endless wrangling and probably we would end up years away still no nearer to practical proposals being made.

Our Constitution has served us well. There are areas where there is need for close scrutiny and proposals for change. All our recent experience has shown us that unless there is a solid body of consensual agreement before the proposals are made they are unlikely to be successful and the public debate which follows will be divisive, bitter and poisonous. I would suggest that the Government approach, which was very unspecific in the opening speech of the Minister, should be to accept the goodwill of all parties in this House and in the other House on the question of the need for a hard, constructive and fair look at the Constitution and set up the type of all-party committee which would be a first step towards making that possible.

Fifty years ago the draft Constitution of Ireland was submitted to the people in a plebiscite for their approval. The language of the Preamble to the Constitution is important and often not sufficiently appreciated. It states:

We, the people...do hereby adopt, enact and give to ourselves this Constitution.

The importance of this act of popular sovereignty is fundamental to the republican structure of the State. It was not the lawyers or the politicians who enacted this Constitution, it was the people. Legal historians tell us of the sterile debate on the source of authority for its predecessor, the Constitution of the Irish Free State. Was it the United Kingdom Parliament in Westminster or was it Dáil Éireann sitting as a constituent assembly? English lawyers and English courts have always maintained the former, Irish lawyers the latter. However, there can be no doubt as to what happened in 1937. A sovereign and independent people decided and the Constitution gave expression to that sovereignty.

On the day when the Constitution came into force the then Taoiseach, Eamon de Valera, in a nationwide broadcast, pointed out that in the new Constitution the traditional aspirations of our people for national independence, for national unity and the unfettered control of domestic and foreign affairs had been recognised and accepted as basic principles. This, in giving expression to national traditions and principles, the people, by means of the Constitution created a framework for the free, stable and democratic development of a then relatively new State.

A constitution is a social contract whereby the citizens of the State agree upon the form and structure of their Government, legislative and judicial, as well as the principles according to which relations between citizens themselves and between the citizen and the State should be regulated. Age is the hallmark of a successful Constitution. Age, in turn, confers substance to the constitutional framework and understanding to the principles enshrined in it, according as that social contract is executed and implemented over the decades.

The Constitution of Ireland is still a relatively young one. The Constitution of the United States is 200 years old this year. Referring to the founding fathers of the American Republic Henry Adams said:

The men who made the Constitution intended to make by its means an issue with antiquity.

The great American experiment, as the Constitution is often described, was a rejection of the hypothesis that Government based on the popular will of the people could not endure, that societies were destined to depend for their political constitutions on accident and force. Yet the American Constitution also had its detractors. As early as 1802 Hamilton declared the American Constitution as a "frail and worthless fabric". Today the American experiment is a reality and the mythological evils which some of its detractors claimed would flow from the democratic exercise of the popular will has been consigned, by time and the Constitution, to oblivion.

Earlier this century, however, not all of these myths had yet been laid to rest, with many of the imperial powers still claiming the right to govern small nations, if necessary by force. This self-serving claim was frequently buttressed by an almost philosophical assertion that such nations were inherently incapable of ordering their affairs or maintaining a stable democratic structure capable of withstanding the traumas to which all societies are from time to time subjected.

The Constitution of Ireland, regulating as it does the manner in which the powers created under it are exercised and balancing the competing rights of the individual and the community as a whole, has stood the test of time. Fifty years' experience of our Constitution together with the independence of the 26 Counties since 1921 have laid to rest the imperial philosophies of the early 20th century.

However, the Constitution should not be seen as merely a rampart erected to preserve the status quo, since it was essentially designed and does provide the framework in which the State and its people can work towards the achievement of national goals. The Constitution is, and was intended to be, a contemporary document. It is written in the present tense so that it falls to be interpreted and applied as part of the contemporary body of law. This is consistent with the view that it is intended to endure for a very long time. This does not mean that the interpretation or application of its provisions are rigid or inflexible. It enshrines the fundamental rights and principles according to which the human person has a right to live by virtue of his nature as a rational social being. It does not confer but acknowledges the existence of those fundamental rights which it protects and requires the State, through the organs of Government, including judicial, to vindicate. These rights are fundamental because they are the natural rights of the citizen in a democratic State. They include the right to liberty, the right to fair procedures and a fair trial, freedom of expression, freedom of association and a right to privacy, to name but a few.

The Constitution provides a mechanism by which each and every citizen can have any infringement of those rights adjudicated by an independent tribunal. This mechanism is, of course, the courts which constitute the judicial organ of Government. Such a mechanism is a cornerstone in any democratic society so as to provide the individual with protection from error, arbitrary decision or abuse of power on the part of any organ of State.

The provisions of the Constitution, and the principles enshrined in them, fall to be interpreted in the light of contemporary or current social values of society. Many matters which were not acknowledged as human rights a generation or more ago are now accepted as an essential part of any charter of human rights. This, I might add, is one of the reasons why the Constitution does not specify all of the rights to which it gives protection but nonetheless gives to the courts the duty to protect the fundamental rights which are not specifically referred to in it.

There are 50 Articles in the Constitution, five of them dealing with fundamental rights. Some articles, a very small number, have been the subject of detailed discussion and debate. That is as it should be. Nobody suggests that a Constitution is immutable and indeed it contains its own very democratic mechanism for change. However, it is misguided and misleading to portray a debate on one or a small number of articles of the Constitution as being in some way a reflection of the Constitution as a whole. It should be borne in mind that amending the Constitution is not necessarily a panacea for some political or social problem, real or perceived. If society is confronted with complex social or political issues it must search for and identity a solution. If, having identified the solution, and if its implementation requires constitutional change, then the people have the right to decide whether, on balance, the Constitution ought to be changed in order to accommodate it. Seeking to change the Constitution and looking for the solution later is not the way to approach the fundamental charter and framework of the nation. Instant calls for constitutional change as a reaction to a fleeting abuse or as an escape from the more difficult task of seeking solutions are at least as likely to deform as to reform the Constitutional order. As Professor Slisinger said in relation to the American Constitution:

"Constitution tinkering is a flight from the hard question, which is the search for a remedy. Structure is an alibi for policy failure. Let us not be beguiled by constitutional reform from the real tasks of State craft. In the end politics is the high and serious art of solving substantive problems".

I believe the Constitution has served the people well. The body of constitutional jurisprudence which has grown up in our courts bears testimony to the protections which it has given to the rights and freedoms of the individual, whoever he or she may be: to the safeguards for the common good and to the independence of the different organs of Government, legislative, executive and judicial. As the late President and former Chief Justice, Cearbhaill Ó Dálaigh once said, when referring to the fundamental rights guaranteed by the Constitution:

"these are not political shibbo-leths...but provide a positive protection for the citizen and his good name."

The fact that the Constitution has not only remained largely intact but provided an effective democratic framework for our State is evidence of its vitality and its importance today and is also consistent with the respect with which it is regarded by jurists and politicians worldwide.

As a social and political document the Constitution provides both the means and the challenge to achieve the national goals where the welfare of the whole people may be secured. Inevitably, where human endeavours are concerned, there is a gap between the ideal and the reality. One of the challenges which the Constitution presents to all of us is to strive as far as is humanly possible to achieve those ideals of which it speaks namely justice, charity and well being in our social order.

On the very first anniversary of the Constitution Éamon de Valera, when referring to principles recited in the Constitution said that they were intended to be an urge to action, an inspiration and a directive to guide us along the road to true social reform and towards a goal of national reconstruction which would really be worthwhile. And that there could, however, be no travelling along this road unless the individuals of the nation had the will to work and even to sacrifice and to endure so that the goal might be reached.

Each generation has its own challenges and its own goals. Each generation is faced with the difficulties and obligations of its own time. We, today, are faced with the challenges which must be met in order to achieve progress and welfare for our people, particularly for the weaker sections of the community. The Constitution not only provides a democratic framework within which to work but provides its own dynamic challenge to work for national aspirations and thereby to promote the common good so that the dignity and freedom of the individual may be assured.

Our Constitution has served us well over the last 50 years and, I am convinced, will do so for the next 50. I believe that the politicians who will be here in the year 2037 will be singing the praises of the men who wrote it. There is an old Irish saying, "Coinnigh do shiopa agus coinneoidh do shiopa tú". Keep your shop and your shop will keep you. I say, keep our Constitution and it will keep us.

It is fairly well known by some Members of the House that I am extremely critical of the Constitution, critical of its appropriateness for the problems that we now face, for the problems that have evolved slowly and painfully to our knowledge, problems which were really obscured from the generation which drafted the Constitution. At the same time I should have regard to the terms in which the motion is phrased: "that the House notes the 50th anniversary of the Constitution."

There is a time in which homage should be paid to our predecessors. It is appropriate, first, as a historian that I should acknowledge that this was, in its time, a notable and visionary achievement. It is appropriate that we should be debating it in this Chamber which was restored under the Constitution. Seanad Éireann, it must be remembered, was restored under the 1937 Constitution, having been abolished a couple of years earlier. Therefore, let us now praise "the famous men and our fathers that begot us", as the psalm says. Of course, the most famous man is the architect of the Constitution, Eamon de Valera, the sole architect, in effect. He had some loyal assistance from people like John Hearne, the legal adviser in the Department of External Affairs; Philip O'Donoghue, Hearne's assistant, who was from Macroom — I am glad to say — and, who although he lived all his life in Dublin, did not forget his origins and died in fact only a year or two ago; Maurice Moynihan, then Secretary to the Government; Michael McDunphy and very few others.

In fact, I think all historians would agree that de Valera was the only begetter of the Constitution. Sometimes he did not even bother to consult his Ministers. Even where he gave them the opportunity to make comments on the draft Constitution they simply assumed that he was the man to do this job. They did not see article 44.1, the article which is now deleted, which guaranteed the special position of the Catholic Church, until it was firmly in place. Therefore, de Valera's role as the sole architect is unchallengeable. Indeed, those of us who have looked at the recently released Killiney papers found that they have borne out that impression. The various drafts of the Constitution, his own marginal notes and so on all point to his overriding preoccupation with this matter and with the fact that few others had any real input into it.

The Killiney documents bring out above all his concern with national sovereignty. Of course, that is understandable, not only in view of the controversial and turbulent history of the previous 15 years since the treaty but because sovereignty is an old concept in Irish nationalism. It simply does not mean political independence alone; it means social harmony, economic prosperity and cultural autonomy — the notion that the sovereign State can encompass all these objectives. The Killiney documents are full of interest for other reasons. For example, it seemed up to a late stage that the description of the nation's name in the Constitution would be Poblacht na hÉireann but for reasons which are fairly obvious, he decided not to use the term "Poblacht".

My own view, after studying the Killiney papers and looking again at the Constitution, is that de Valera drafted the Constitution essentially as a Twenty-Six County document. That ties in with all other aspects of his life. He was essentially a Twenty-Six County man. This was his turf; this was what he ruled. There was another place out there to which there was some aspirations and to which some lip service was paid, but in the end, as he said in his old age, "Ireland is Ireland without the North," and the Constitution is fundamentally a Twenty-Six County document with bits tacked on. One of the most intriguing annotations in the Killiney papers is where he is trying to draft a definition of the national territory. One draft goes as follows:

The territory of Éire shall be such as from time to time may come within the jurisdiction of Éire".

That underlines the tentative and rather nebulous concept he had of any place existing outside the actual de facto State.

Much light has been thrown by the Killiney papers on the Church-State relationships and the precise description that the Catholic Church should get in the Constitution. Here, the essence of his approach was to go to Rome and get approval there. Episcopal advice at home was relatively unimportant to de Valera, despite his close consultation with the then president of Blackrock College, Dr. McQuaid, afterwards Archbishop of Dublin. Really de Valera knew where the power was, and so he dispatched his aide to Rome to get approval, which met with indifferent success.

De Valera acted as the kind of bishop that he was, because as well as being a statesman and a politician he was his own church. He reminds me a little of Senator Brendan Ryan, who is forever referring to "my own church" as if he had achieved some kind of ecclesiastical take-over bid. De Valera was his own church. The distinction between Christ and Caesar did not really bother him because he was quite convinced that he belonged to both, as it were.

The main purpose of the Constitution was to assert sovereignty, the sovereignty of the State, the legitimacy of the State, not sovereignty in the sense that the State ruled the people but sovereignty that this State, because of its historic destiny, should be totally in command of its own affairs. The Constitution, above all, was designed to demonstrate that the State was founded on the people's will, unlike the 1922 constitution which, in de Valera's view, was fatally flawed because it had been imposed by the British and was constrained by all kinds of unpalatable references to King and Commonwealth, and so on. This Constitution would be based on the people's will. That is essentially why the draft Constitution was put to the people.

It is not generally known that the Constitution could have been enacted by the Dáil — that is assuming a Fianna Fáil majority. It could have been enacted at parliamentary level. There was no constitutional obligation on de Valera to make it a plebiscite. But it had to have the people's will and so he was grieviously disappointed that the people evinced no great enthusiasm for the new Constitution, partly because it was a matter of party politics controversy. He was disappointed that only 65 per cent of the electors voted and only 57 per cent of the voters endorsed the Constitution. When we talk about a Constitution sanctioned by the people and we read the splendid, ringing, opening phrases "enacted by the people", we should correct it by this very salutary statistic.

He was also disappointed by the smallness of the turnout and the weakness of the popular affirmation for another reason, that is, he knew that the Constitution was fundamentally flawed in respect of the North because nobody in the North was voting and he thought that somehow, if you could get a massive popular turnout in the Irish Free State that would, in a sense, make up for that deficiency. So, he was disappointed and with typical de Valera resignation he gave the explanation as follows. When people asked him what did he think of the verdict, he said the people as a whole, had not understood the importance of this fundamental measure. Nothing was so characteristically or so paternalistically Eamon de Valera as that statement — the people did not really understand.

The main purpose of the Constitution was to assert the sovereignty and legitimacy of the State. It was an exercise in reconciliation also. It was meant to bring in out of the cold those republicans who had grave doubts about the legitimacy of the State; because the State did not have a real and full consensus, one could say, until de Valera's decision to bring his party into the Dáil in 1927 and, after that, there was still a substantial section who did not really think that the State was legitimate.

The 1937 Constitution, because it was enacted by the people, no matter in how disappointing a form, did satisfy most republicans and did square with their republican consciences. The late Seán MacBride, for example, was perhaps the most notable example of those who had not given their assent to the State but, now that the 1937 Constitution was in place, agreed that this did legitimise the State fully. It was an exercise in reconciliation with the estranged republicans, with those who were estranged from de Valera and Fianna Fáil. Indeed, after 1937 only the fanatics did not recognise the legitimacy of the State. The rhetoric of the fanatics is to be heard very frequently to this very day through the lips of people like Gerry Adams and Danny Morrison.

Another interesting thing about the Constitution — I hope the reason Senator McGowan has left is not that he was bored by my lecture — to the student of Irish history is that there are really two concepts of how a nation works. One is that it works because the flesh and blood people in the nation agree that it should work, have a majority in an election, or make a decision on a controversial matter through a plebiscite or refrendum. The other theory is the theology of republicanism which says that the nation has rights above and beyond the people who comprise the nation. Even though the people can make a wrong decision, the nation must still pursue its proper destiny. That abstract nationalism or rebublicanism comes right down through the Fenians, to the 1916 men, to the post-Treaty IRA, to today's Provisionals, the theory that the nation prevails above the misguided people.

De Valera himself had belonged to that school of abstract republicanism. De Valera himself at the time of the Treaty split said the people had no right to do wrong. Of course he was also a democrat: he also belonged to the other school and the 1937 Constitution was an exercise in squaring that particular circle, the real world of the popular will and the abstract theological world of the abstract nation. That was not the least achievement of the Constitution.

The Constitution also set out to restate and re-assert the democratic values of the Irish political tradition which is to say the democratic values of the British political tradition. We would not be sitting here in this House and proceeding according to our rules were it not for our British political heritage. It was important that the values of the State should be re-asserted in the middle thirties because of the fascist context of much of Europe.

When I say re-asserted and restated I mean, of course, that these values were already in the 1922 Constitution. It was only a natural piece of political policy for de Valera to play down the 1922 Constitution. If his own Constitution was to be his lasting monument, it was important that he should not give too much credit to the Constitution which it was replacing. Nonetheless, the Constitution which it was replacing had guaranteed these personal and democratic rights and had spelt out the democratic structures of the State. The 1937 Constitution re-asserted that and it was a good job it did so, as I say, in a Europe which was otherwise threatened by the forces of fascism.

Finally, the Constitution offered a particular vision of an Irish society. You might say an "aisling," an Irish-Ireland "aisling" which, of course, was the product of the cultural nationalism in which de Valera and, indeed, all his political opponents were formed in the old Gaelic League Irish-Ireland days. Perhaps the weakest part of the Constitution was its attempt to define a relationship between the State and the nation, that is to say, Articles 1, 2 and 3. Even in their own day these Articles were unsatisfactory. My own view, as I said already, is that de Valera worked on a Twenty-six County basis and added on rather unconvincingly a Northern dimension.

One of the last things I would say in tribute to the Constitution is that it is important to see it in its own time. Historians have repeatedly to warn their students not to judge a document or an event by the standards of the contemporary world but to make the imaginative effort to see it in its own time. So today it is customary to see the Constitution as illiberal in its moral and religious values, conservative and illiberal, particularly so before the repeal of Article 44 in the 1972 Referendum. In its own day de Valera and many other people were convinced that it was a very progressive and liberal document in Church-State relations. They might well point to the fact that a country which had experienced a lot of religious division and a lot of bitterness had nonetheless specifically consulted the heads of the other non-Catholic Churches and listed them and guaranteed them nominatim their freedom of religion. These other Churches or communities included the Jewish community and it was no small thing that our Constitution in 1937, at a time when Jews were being incinerated in Europe and persecuted elsewhere, guaranteed them religious liberty.

Again I am certainly very strongly preaching this: I think the Constitution is highly defective, fraudulent in terms of the North, but de Valera was quite convinced that it was a generous Constitution as far as Northern Protestants were concerned. We can go no further, he said, in effect; there is a limit to which we can go to satisfy them. He felt that though Article 2 defined the national territory, Article 3 in effect said "We will not exercise jurisdiction over the Six Counties".

Article 29 laid down the principle of a peaceful approach in international controversies which suggested that the Dublin Government would be peaceful in its resolution of the Northern problem. Finally, there was the tenuous link with the Commonwealth and with the King, though not in the Constitution but preserved through the External Relations Act. All of this, somehow he felt, added up to very generous concessions. Of course the Northern Protestants did not take a tack of notice of the Constitution and would have laughed to scorn the idea that these were in any sense a concession to them but, again, it is important to see the Constitution in its own time.

Let me turn back to my political role as it were in that I find the present Constitution highly defective. We have heard, not today, not simply for the first time, but over the last year or two when the Constitution has been a matter of public debate, phrases like: "It has stood the test of time well". That is in the Minister's speech, I think. "The Constitution has served us well" is another cliché which we heard from Senator Farrell. How true is that, that the Constitution has stood the test of time well and has served us well? To the extent that it has served us well, one reason for that is the judicial review process and that, as Senator Manning said, the judges have come to our rescue when we ourselves have been too negligent or cowardly in the Oireachtas to do what should be done.

Incidentally, the thing about the judicial review is that if you like a particular judgment handed down, you think judicial review is a great process; if you do not, then you have the opposite view and it depends on what judgment you are talking about. You have an a la carte reaction to judicial review. As regards serving us well, I think that any Constitution would have served us well in the Irish parliamentary tradition. Any Constitution in this State has to guarantee personal rights and has to guarantee civil liberties because we have inherited this kind of political culture. There is no reason these personal rights and civil liberties could not be put in the next Constitution. People talk about “throwing the baby out with the bath water”, or about “taking a risk” but there is no risk. The views that have been laid down and confirmed by judicial review can be incorporated in the next Constitution. There is no controversy about that. In other areas however, the Constitution no matter how well intended at the particular time — and I have paid tribute to it — is no longer appropriate to our dramatically changed society, our dramatically changed understanding of North-South relations, our painfully acquired perception about the real nature of the problem in Northern Ireland — all of that alone makes Articles 1 to 3 especially, totally unsuitable.

I must take issue here with the Minister's speech on a number of grounds. First of all, as she said a Constitution ages well, like wine. It is not really drinkable until it is 50 years old. She deprecated the unseemly haste to get rid of a Constitution simply because it was 50 years old. What about the United States Constitution, 200 years old? Splendid; it has stood the test of time and has served them well. But the United States Constitution sets down immortal and immutable truths about the rights of man. There is nothing in the United States Constitution which dates. It does not reflect the culture of a passing age and what we were witnessing in the 1930s really was the last kick of a particular kind of Irish Catholic nationalism which now has virtually disappeared. Nothing like that happened in the United States. The two situations simply are not comparable and I do wish people would stop talking about that.

Apart from other issues which my fellow Senators will be talking about, the private and the public good, for example, — the balance between private property and the public interest has been revealed as deficient in a number of cases — the essential flaw of the Constitution is that it is permeated by a Catholic ethos. Whatever we think about a Catholic ethos being okay for a State 95 per cent Catholic — although we all know it is not 95 per cent Catholic: how many people are really Catholics any more — a Constitution which has a Catholic ethos and which makes a territorial claim on Northern Protestants who simply cannot abide the Catholic nation, that is its essential flaw and that, surely to God, has been shown up over the last 15 years. How any one can ignore that is beyond me, it is also beyond me how the Government document can go through 12 pages and never mention the North in a general statement on the Constitution. There is not one word on the North — is that not incredible? Is that not an example of the Fianna Fáil counterpart of "no change""no surrender", "put you head in the sand and pretend it does not exist."?

That Catholic ethos, it is agreed, has been cosmetically lessened by the removal of Article 44 but it has been substantially strengthened by the insertion of a clause which was totally unnecessary, the so-called pro-life clause, and the retention of a clause which is offensive to civil liberties and which is a specifically Roman Catholic clause, the absolute prohibition on divorce. Politians and churchmen who supported these amendments and who, at the same time, wring their hands about sectarian conflict in Northern Ireland are hyprocrites.

In my view the real core of our problem here is the first three Articles of the Constitution. The whole basic assumption that Ireland is one nation, that it has a unity of cultural, political purpose is now at odds with the facts. It is even at odds with the admission by Fianna Fáil and other parties that the Northern Protestants are entitled to their British ethos, their British identity, their British culture. Articles 1 to 3 are clearly in conflict with commonsense, with developing reality and with the Anglo-Irish Agreement and I suggest it is high time for an Oireachtas Committee to sit again on the Constitution.

In Irish life at the moment there is a tremendous gap in so many areas between the public pretence and the actual realities: the public pretence, for example, that Irish is the first official language; the public pretence that this is a Catholic country or a Christian country in any real sense, but the greatest pretence of all is the pretence enshrined in Articles 1 to 3 of the Constitution, the pretence that Ireland is one nation, legitimately in pursuit of one destiny and of one culture.

In arguing for constitutional change, I would finally make the point — and remember I have paid proper homage to the Constitution and its architects — the Constitution exists to serve the people. There is nothing sacrosanct about the Constitution. There is nothing sarcosanct about the nation. People do not exist to serve the nation or to serve the Constitution; it is the other way around. If the fundamental primary document of our State is no longer appropriate in a large number of areas but, above all, in the crucial problem of the North, then surely change is something to be welcomed to serve the interests of the people in 1987, all the people of Ireland, just as Eamon de Valera, honestly and sincerely believed that in 1937 he was serving the best interests of all the people of Ireland.

My contribution will be a brief one because I am not an expert in this area. Nevertheless, I welcome an opportunity to make a few points and to say something that will be from the heart. I believe the Constitution should be a shining example of tolerance and pluralism. I could sit down and say no more and leave that as the totality of my contribution.

I firmly believe that this is necessary. It is divulging no great secret to say that I fit rather uneasily into the role of a politician, for many reasons. I suppose I came into the arena a bit late in the day and there are other reasons also. There are frustrations along the way in being a politician and, indeed, after a short time we discover that there is very little we can do in practical terms. If I were a genuine politician and if I were starting off in politics, that would be my motto. At the end of the day whatever little I will achieve — and at times one is heartened by some things that one can do — I hope somebody may feel that I have made some contribution towards an increase in this area of tolerance and pluralism.

I have long held the view — I am not sure whether it is senility or maturity — that religion is a path to God and that we have different paths, different ways. While some would profess to see scandal in that situation, from my point of view it gives me hope and inspiration. I have read at different times the statements and the pronouncements of Dean Victor Griffin with regard to pluralism and I must say that, while I cannot recall at this moment exactly what he said nevertheless, at the time I read his statements I agreed totally with him down to the last comma.

Somebody might ask: do we not have this tolerance and pluralism in the Constitution? Looking at it in a very simple way from my own point of view — I am not a lawyer — I would ask the question with regard to the minority Churches, for example, the Church of Ireland, what is the reason that all over the country we have dwindling congregations? Why we have small Churches closed up, abandoned, demolished? This is sad. Even in my own area some beautiful Churches where congregations gathered on Sundays have ceased to function. It is not alone a religious loss; it is a social loss also. It seems that in some way the minority Churches have a grievance and that is unfortunate.

It is necessary to qualify what I mean by tolerance and pluralism. I found very helpful the book published by the Cork University Press in 1984, "Church and State". The author is Desmond M. Clarke and he deals in one chapter with tolerance and pluralism. I would like to quote a short paragraph with regard to tolerance:

The virtue of tolerance is often confused with a complete lack of moral principle, in such a way that the most unprincipled people are also, by definition, the most tolerant. If one combines this mistake with a penchant for false dilemmas, one is too easily offered the option between being principled, being "willing to stand up and be counted" and being tolerant. Whatever one might do in practice, at least in theory this approach almost forces people into admitting that they cannot afford to be tolerant. If one is a person of principle one cannot at the same time be tolerant!

He states on page 70:

...it would be impossible to be tolerant if one had no reasonably firm moral/political convictions which could conflict with those of others.

That is important. It is possible in this country to hold strong religious views and yet to be tolerant in the best sense of that word. This applies to all the churches.

With regard to pluralism Desmond M. Clarke on page 81 states and I quote:

Pluralism is the political equivalent of tolerance at a level of individual agents; similar arguments with appropriate modifications can be introduced to defend it.

The issue of pluralism in Ireland is not an abstract philosophical question but a concrete political problem. Any progress in coping with the political repercussions of conflicting traditions must depend, to a large extent, on the skill and sound judgment of politicians. And this is not learned in philosophy. However, there are also issues of principle involved in accepting any pluralist thesis. Philosophical analysis may help explain how one can be a principled participant of one tradition and still endorse pluralism without inconsistency.

By pluralism here is meant the political recognition of competing claims on the resources and power of the State, and the recognised validity of alternative political and religious ideologies in any given society. Since this formula is too vague to exclude almost anything, it needs to be developed by illustration from specific examples. Religious pluralism is an appropriate case study.

Religious pluralism is referred to in two sentences on page 84:

Religious tolerance implies neither favouring nor discriminating against individual citizens of a democracy solely because of their personal choice with respect to religious belief. It applies to non-religious citizens as much as to those who support a religious tradition.

Finally, I will quote the conclusion of that chapter on page 88:

Tolerance is a social virtue which, like any other virtue, is acquired by practice rather than by theory. In the case of the individual, this implies the cultivation of a tolerant attitude towards the sincerely held, opposing moral-political views of others; in the case of the wider community, it implies an historical tradition which is less evident in Ireland than in other Western democracies such as Holland. The training of the individual and the traditions of a society determine their respective attitudes towards tolerance in a way which requires a considerable change of perspective in order to modify an already entrenched philosophy of intolerance.

Those who are intolerant often rationalise their limitations by reference to "principles", with the suggestion that they have to choose between being principled and being tolerant. The argument in this chapter is meant to show the contrary: the issue at stake depends on which principles one ought to endorse, and whether tolerance might be numbered among the principles which a rational agent should adopt.

For my part and for my contribution that is the most significant aspect. By and large, I would have to say with regard to my membership of the EC committee and other committees, that we have a tolerance. We have an understanding. With regard to the Constitution and with regard to the development of our society whereby a large section of religious minorities outside the main religions has been absorbed and lost, there is something wrong and this should be looked at. My hope is that this will be rectified.

I will deal very briefly with some of the other issues that have been raised. The Constitution, despite what Senator John A. Murphy has said, has been regarded as a success. I agree with Senator Manning that it would be a mistake to adopt the de novo approach with a Constitution that has been in existence for 50 years and that has been tried and tested. If it is found wanting in any respect then let us have it altered but I do not agree with those who might campaign for a new Constitution. If we were to have a new Constitution perhaps the proper time to introduce it was at the time we joined the EC. That time has passed and we should now deal with what might be regarded as defects in the Constitution.

In some respects the Constitution is very simple and straightforward but in other respects it is very difficult to understand. For example, it is almost impossible for anyone other than a trained lawyer to understand Article 29.4.2. Those who have listened to the Thomas Davis lectures on Radio Éireann — last Sunday night a very eminent lawyer dealt with Articles 2 and 3 — will realise that there are complications in the Constitution and there are also cross references. The speaker last Sunday night came to the conclusion that there is no justification for Unionists in the North to take umbrage from those Articles, despite what other people have said. I agree that if they are causing a problem and if they are serving no purpose then by all means let us get rid of them.

The question of divorce has been raised by Senator Manning. That is an issue on which I have strong feelings. People should have a constitutional right to divorce. There are cases of young people who are left stranded for the rest of their lives because their husbands and wives have left and will never return and this is unfortunate and wrong. We have dealt in great detail with that problem and there were those who said that to introduce divorce would bring about an alien or a pagan environment but Christians, if they are strong enough in their faith, will not be deflected if divorce is available. It is something that should be available to so many people who are left stranded and that number is increasing all the time.

The electoral system has been referred to and it might be looked at again. I recall that my party attempted to change the electoral system but without success. I agree that whatever changes are to come about should come from an all-party committee. The all-party committee which reported in 1967 did a wonderful job and it is a pity that this was not followed up. I hope the same type of inter-party committee will consider the situation again in the future.

With regard to the Constitution, I have read with considerable interest the book published by Basil Chubb, The Constitution and Constitutional Change in Ireland. I could in some way regurgitate what he so ably states in that book but I feel nobody would be interested in reading it second-hand. In any event if somebody wants to come to grips with the problems in the Constitution he will go directly to the scources involved. Very few people will be interested in what I have to say in this House.

The previous speaker mentioned the Progressive Democrats and the proposed Constitution which they published. I did not get an opportunity to read it but I understand it was a shortened version. While in general I would be in favour of simplicity and brevity in a constitution nevertheless the present Constitution is not a very long document. It would be difficult to shorten it and to include everything that we would like to have included.

With regard to the criticism and Seanad Éireann in that published document, I would simply like to say that it would be a grave mistake to abolish the Seanad as it fills a very important role. Perhaps it would be fair to say that it is the Opposition in the Seanad who have an opportunity of playing the more constructive role. I relate back to the last Seanad and to Senators who have now gone from this House and who played a major part in it for example, Senator Jim Dooge, Senator Sean O'Leary, Senator Catherine McGuinness, Senator Eoin Ryan and anyone who——

Michael D. Higgins.

He is a Deputy now. I am just restricting myself to Members who are no longer in the Oireachtas, but of course Deputy Michael D. Higgins played a very important role. I could mention many more Senators such as Senator Ferris and others but since they are here I will not embarrass them. I just wanted to mention some of those who have left and who have played a very important role in the Seanad. In the last Seanad we got an opportunity of coming to grips with the legislation. On this side, we were facilitated to a very great extent. I pay tribute to Senator Jim Dooge who was so courteous and so understanding. We got an opportunity at all times to contribute. We were all responsible for amendments to different Acts and legislation that went through this House. It would be unfortunate if we did not have that. In this House it is a different point of view, there is less of the party political element and that is a good thing.

With regard to Articles 12 to 14, which deal with the President, and specifically Article 14, we should have a procedure for paying honour to some of our citizens. Certainly titles of nobility are excluded. We should have some type of honour system. With regard to Article 16, and Dáil Éireann, perhaps some Ministers have a very difficult role to play and they might not endear themselves to the electorate by playing a full role. Perhaps, like the Ceann Comhairle, if Ministers were automatically returned to the Dáil it might help. I do not understand why the Seanad does not have any power with regard to money Bills. We should have the same power in that regard as in any other area.

Before I conclude I would like to deal with Article 41 which refers to the family and which is an important Article. Article 41.2. states:

The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

I am not sure if that is honoured at present because I know, and I am sure everybody else in this House is aware, of many cases where the wife has to work to pay the mortgage, but whether it could be said that in so doing the duties in the home are neglected I am not to sure. Indeed I am not sure if I would agree that the woman's place is in the home. Certainly if the woman is content and happy in that situation then every encouragement should be given but, being a member of the Joint Committee on Women's Rights, I feel that women should have equal rights with men and all opportunities should be open to them.

One of the problems I see in this area is in regard to the Church to which I belong, the Roman Catholic Church — I better not say my Church in case Senator Murphy is listening. It seems that in the Church which sets the moral datum line a woman is not considered equal to a man in so far as a woman is not entitled to be ordained. As I have said before, I have no doubt that position must change and will change. There may be a historical reason for it but I think it must be changed. While it is encouraging to hear very senior churchmen say that women should have a greater role in the Church than making the tea at the annual meeting of the St. Vincent de Paul Society, nevertheless the reality is that the woman is, in that respect, considered inferior to the man and unsuitable for holy orders and that is clearly wrong. Many women may not want to become priests but I do not think that is the issue. I agree with the Constitution and I agree with every endeavour to give women an equal place to men in society but the problem arises in that the Church that sets the moral standard says the woman is not fit to be a priest. That is a major problem and it is unfortunate.

I want to repeat that the Constitution, while it appears simple, has engaged the attention of very brilliant lawyers who have had conflicting views with regard to different areas of it. I am not putting myself forward as somebody who wants to comment on any of those issues. The guiding principle in the Constitution should be the concept of tolerance and pluralism. In a sense while it is important to have that principle in the Constitution it is more important that it would be in the hearts and minds of the people. A society that would be anxious for that tolerance and for that pluralism and a society that would have it embodied in its Constitution, because after all the Constitution simply sets down the boundary lines of the playing field and the markers along the way, is the society and the Constitution that I would aspire to.

Like the previous speaker, I am not an expert on the Constitution. I just want to make a few comments on it as it relates to me as a member of the Oireachtas, as a citizen of the country and as somebody who has witnessed deprivation in our society, particularly regarding poorer people. As one of the co-signatures to the motion I welcome the opportunity of at least acknowledging that the Constitution has survived over this period.

Senator Murphy who must be regarded as an eminent authority in this area does not necessarily agree with the present Constitution but he rightly paid homage to it and to its architect, the late Éamon de Valera. The fact that he is critical of it now does not necessarily make the Constitution wrong. Of course he has a right to be critical of it. The extraordinary thing about this Constitution is that it has withstood the test of time and controversy. It has survived numerous court cases and indeed has been a means of defending people's rights in cases and has also lent itself to be amended.

Since its inception in 1937 the Constitution has been amended. The magnificent thing about the Constitution, even if it is a document of aspiration in many areas, is that it is the property of the people and that only the people as they see fit can and will change it. They have appropriately changed it down through the years when they felt it was correct to do so. They amended it in order that we could join the European Community, which was probably the most major amendment ever to the Constitution in that we handed over some of our sovereign rights to another Parliament, to the European Parliament, who have on numerous occasions in the meantime exerted that right over us. The people in their wisdom have been open to change but they have also rejected other suggested changes.

Many people might disagree with the results of referenda that may not necessarily have gone their way but they have to go along with the will of the majority of the people. I agree with Senator Murphy that the original referendum held to bring the Constitution into being was not one that solicited widespread support or interest from the electorate of the day. That was not because people did not understand it. The vast majority of people, including Members of this House — and I include myself — do not read the Constitution in total. Like the Bible, it is a book that we should all read, but how many people do that? Various sectional interests read specific sections which affect them and their conceived or perceived rights. The whole document has rarely been read by the total population even though it has been the subject of controversy and of debate.

Another political party published a document which at least afforded the people a debate. I disagree with many of their suggestions, particularly the one that this House is in some way superfluous. I resent that suggestion, particularly from a party who are not represented in this House and who know nothing about its workings. How much is known about the amount of legislation that is initiated here, and that was initiated by the provisions Government and is being continued by this Government? That legislation lends itself to expert, lengthy debate with no curtailment on time. Amendments are suitably recognised by the Government of the day and this leads to good legislation which is then sent to the other House of the Oireachtas which is obsessed with political motivations. The reverse, I am sorry to say, does not always happen. At times we get urgent legislation from the other House but we do not have the time to deal with it properly.

When the referendum was held to implement the Constitution the number of people who voted — Senator Murphy gave the percentages — was 685,000 in favour and 526,000 against but 560,000 did not vote at all. Some 822,000 people in the North of Ireland were excluded from the vote. Only 46 per cent of people voted, less than half the population, and only 26 per cent of those were in favour of it. That should not take from the Constitution. Its author felt at the time that people did not understand it. In hindsight I would argue that they possibly did not read enough about it or consider it to be a political document. It has been the subject of scrutiny, amendment and debate. Twenty years ago an all-party review committee reported on it but, unfortunately, most of their report was ignored, with the exception of Article 44 which gave preference to the Catholic Church within the older Constitution. Apart from that, no other recommendation of that committee was taken on board.

It is appropriate now to look at the Constitution. The Taoiseach said he is prepared to discuss it with all the party leaders. Perhaps the setting up of an all-party committee is not the proper way to deal with such a complex matter as a constitutional review. Perhaps if we had no Constitution at all people would sit down with a clean sheet of paper and write out what they felt was the appropriate document to cover all areas now and 50 years down the road. That would be much easier than having to look at this document and take from and add to it as we saw fit. It is a document that has already lent itself to amendment and that is good. This document was probably considered to be perfect when it was first published but we discovered afterwards that it was not perfect. We know there are areas in it which have been addressed and have been the subject of referendum, some of which failed, such as — and this was referred to by other speakers — the family, marriage and the protection of marriage.

The reality is that the State, in spite of holding referenda, is not doing enough for families who need assistance, who are in difficulties and have broken down. I am delighted that a Member of the other House initiated a Private Members' Bill which will address this problem. The State, by its very Constitution, has committed itself to helping and assisting the family and marriage as we understand, know and respect it. The State has an obligation, under Article 41, to ensure that the institution of marriage is protected.

Women feel particularly aggrieved with parts of the Constitution. They search long and hard through it and they find very little commitment to equality in it. There is the recognition that women who work in the home do an invaluable service to the State but there are women who feel they should have the right to be out in the work place and be equal to men. That is appropriate. It would be extraordinary if some women who are now forced out of the home because of economic circumstances were to take a case against the State because they had been forced to do so. Some women are forced out of the home to try to survive, particularly in the case of broken marriages where there are children to feed and look after. It is probably for that reason that women never decided to bring a case against the State.

The other area I am interested in is the area of private property which is mentioned specifically in the Constitution. Everyone would accept that there should be rights to private property but we must also recognise the rights of the common good which at times transcend the rights to private property. This is true in areas of local authority jurisdiction where compulsory acquisition orders are made to take land from people on the basis that the common good requires them to do so. This is a procedure which we follow dutifully. We rarely use this instrument but, if we did not have it, very few poor people would be housed because people in a better position to house themselves would not surrender their local authority houses in the interests of the common good.

The previous Government decided that the Land Commission should be abolished. I was totally opposed to that concept and told the Government members my views on the matter. I felt that some institution would have to regulate the actual acquisition of land in the future. Under the Constitution, the Land Commission also had to take into account the common good and the rights of people with no property or with limited property to improve themselves. When abolishing the Land Commission a new land agency with similar powers to those conferred on the Land Commission under the Constitution should have been put in place. Otherwise the cheque book will rule the distribution of land. That is the reservation I have about the priority that may be given to private property under the Constitution.

Senator Ferris, with the agreement of the House I will allow you to conclude.

Apart from people's personal rights, Article 40 also specifies the right to free assembly and the right to form trade unions and associations. There are some multinational companies that question that right. I am glad that all Governments of this State have always defended the right of workers to form a trade union. I do not think that anybody should be deprived of employment on account of their aspirations to be a member of a union that would represent them. Most companies would welcome dealing with a representative body rather than individuals on the shop floor. That is a fundamental right, it has been given in the Constitution. We should be careful to preserve that right in any new labour law we might initiate. Of course, unions have a responsibility and obligation not to abuse that right. They too must have regard to the common good.

I might refer briefly to Article 42 which deals with education, a matter which is very contentious because in that Article there is provision for free primary education for all the children. While trying to be sympathetic to the Government in their present financial circumstances — of which they keep reminding me anytime I look for rights for poorer people, educational rights, constitutional rights or others — I contend that that basic rights to free primary education has been stretched in recent times. Free education is no longer a fact on the ground because voluntary contributions — in inverted commas — have now become almost necessary in considering the concept of free education. Voluntary contributions are almost demanded and now form part of the structures of primary education. I believe that the ability of the State to deliver such free education is being stretched. Many of the problems encountered in the primary and vocational sectors are on the brink of breaching that constitutional right which has been accepted to date. Our Constitution is a document to which many of us turn when in difficulty. It has lent itself to amendment, when necessary, its most important feature being the fact that it is the property of the people.

All of us on this island have different traditions. In the Twenty-six Counties there are many different religions. We afford freedom of expression to the upholders of any religion in this country. Children of members of the Church of Ireland have the same educational rights as do Catholic children. They have the same rights to free transport, if available, and it should be available if it is available to Catholic children. We have to be extremely careful that we be considered to be Christian and, in the application of that Christianity, we must have regard for other Christian religions, other religious beliefs that may not necessarily form part of the beliefs of members of the Catholic Church. We must recognise that we have obligations to other people. They are our co-citizens with a full right to vote in constitutional referenda and in the elections of Governments to represent them. Indeed Governments, members of political parties, and of the Oireachtas have been slow at times to respond to their demands. That is why at times the courts have had to interpret Articles of the Constitution on their behalf.

If anything is to emerge from this debate on the Constitution it should be a realisation that, as part of the Legislature, we have a major responsibility to implement its provisions, where possible, to advocate how it should be changed, when necessary, and protect the people's rights to accept or reject suggested changes by Governments or individuals.

I thank the Government for placing Ministers at our disposal for two full days' debate. That is an indication of the Government's recognition of the importance of the Constitution. I hope the Taoiseach's commitment to a dialogue with all the party leaders in this area will be followed through and that, arising therefrom, the majority of our people will recognise that we have an interest in their fundamental rights as enshrined in that Constitution.

Sitting suspended at 1.5 p.m. and resumed at 2 p.m.

I welcome this opportunity to contribute to this debate. It is interesting to have a discussion on the Constitution. I might comment, first, that the Government agreed, at the request of the Independents, to have this discussions, yet those Independent Members are very thin on the ground at present. That appears to me to be a measure of the sincerity of some of the people who put matters forward for discussion when one discovers that the amount of time they spend in the House afterwards is indeed minimal.

It is proper that the Constitution should be discussed. Our young people should be encouraged to read the Constitution. It is fine document probably the best small paperback produced in 50 years. While anybody commenting on it may be accused of using worn-out slogans, of how well it has served the people and so on, a person who is not a qualified lawyer and who comments on the Constitution should remember that it covers a very wide area and they could very easily get bogged down in the exercise. It is not my intention to go into the legal ramifications of the Constitution. I would like to comment to this extent, that people, commenting on the Constitution, should say whether they are anxious that the Constitution be reviewed or examined and separate that comment from their pathological hatred of de Valera. I listened to Senator Murphy who is absent at present——

An Leas-Chathaoirleach

It is always considered disorderly to refer to the presence or absence of a colleague in the House.

With your permission, a Leas-Chathaoirligh, I am returning the compliment. I went out to the toilet this morning when Senator Murphy commented that I did not stay for the debate.

An Leas-Chathaoirleach

I do not wish to argue with the Senator but the passing reference went by very fast and the Chair did not take it as being derogatory.

I do not mean it in a derogatory sense. I mean it in a most direct sense. I should have liked an opportunity to make my contribution in the presence of Senator Murphy who spoke earlier. I found it difficult to establish or decide whether he was anti-de Valera or anxious to have a review of the Constitution. Such people never miss an opportunity of highlighting the fact that de Valera was anxious to set up a Twenty-six Counties Constitution — that was what was implied and said — for a section of the people, the Catholic people in the Twenty-six Counties. It is my humble assessment that this offers comfort and succour to a section of the people living in another part of the State at a time when all of us realise that such matters warrant careful examination in the cool, calm light of day. Indeed it is against the best interests of this State to make such allegations — to say that de Valera went to Rome to be advised on how to set up a Constitution to suit the Catholic people of the Twenty-six Counties to the exclusion of the remaining six counties. That is a contention that has been fairly well worn out. Nevertheless we have to listen to it.

It is right and proper that our young people should be aware of the values of the Constitution, of its many important provisions and safeguards. My answer to those critics of de Valera and those who helped him draft the Constitution is simple: this State has survived the predictions of British politicians and statesmen of the day. That is a tribute to the Constitution and to the foresight of its drafters.

It is my belief that the Constitution is acceptable to the vast majority of our people. It can be popular to question and raise doubts about the value of the Constitution, to sensationalise to some extent when one wants it scrapped and a new one drafted. It is my belief that if a new Constitution were drafted it might not be very long before somebody else would call for another. It must be remembered that everybody's views are different. It is a good subject on which to talk if one can speak eloquently and has a legal background; one could speak for hours about it.

I find it difficult to understand how anybody can question seriously the fundamental values of the Constitution, that is if they consider the 50 Articles contained in the Constitution. They might seek to isolate one or two and there is much emphasis placed on one or two. While people criticise the provisions of those few Articles very few offer alternatives. I contend that the drafters of the Constitution showed foresight, were mindful of the fact that there are many traditions and religious groups on this island, which were well catered for although there may be times when there is a need to re-examine certain of its aspects. At the time of its drafting we did not have a television network, nor an atomic bomb and the country and Europe have developed enormously in the interval. In the light of the ever-evolving world the Constitution could not be all things to all people. My simple interpretation is that it constitutes a guideline, a document that has safeguarded our laws, our State and which has done much to allow this country develop politically, socially and economically. It is my opinion that it was responsible for seeing this country through a very difficult period in its history.

If we were to scrap the Constitution, as is suggested by some people of wisdom, I would find it very difficult to accept or approve a blueprint which would be acceptable to everybody. Certain political sectors would purport to have the ideal Constitution. Such sectors would sacrifice nationality, national territory and languages. They would sacrifice anything to further their political ego or cause at present. It would do well to dwell for some time on how difficult it is to reach agreement, whether on the Anglo-Irish Agreement or any other on how long those agreements have withstood the test of time and survived. It is in that light that I examine the Constitution. Indeed I compare it with some of the agreements drawn up in more recent times by well-thinking people. I ask myself: had they an opportunity to scrap the Constitution and draft a new document, how long would it last?

The provisions in the Constitution were drafted with foresight and protect the rights of individuals. As somebody rightly said the thinking behind its drafting was the protection of the weaker sections of our community, something which has been well proved. Even when standing orders at a council or vocational education committee meeting are agreed unanimously it will not be long before they are found to be imperfect.

The best tribute we can pay to our Constitution is the fact that, despite all its critics — remembering that while de Valera had friends, he also had enemies and those enemies have not offered any worthwhile alternatives. They have come up with no real alternatives as to how de Valera might have drafted the Constitution differently.

This morning Senator Manning referred to de Valera's vision at the time of drafting of the Constitution, that he did it as a nationalist and a Catholic. I wonder what is wrong with that because, at the end of the day, the flag draped behind you, a Leas-Chathaoirligh, is the flag of this nation. Regardless of whatever Government may be in office all of us recognise that as the flag of our nation. We are entitled to be proud of our country. It is my belief that the Constitution has encouraged us to do so.

There are still people fighting a civil war and they are not all on the Government side at present. Does anybody believe — if we were to scrap the Constitution tomorrow and draft a new one — that that new Constitution would render life any easier for those people involved in strife in the North of Ireland? I doubt it. I doubt if there is any document one could write, or any set of rules or regulations that would render life easier for those people. I doubt if there is any Constitution or any provisions of any Constitution that would encourage those entrenched in paramilitary squabbles in the North of Ireland to believe there is a peaceful way to co-exist on this island. I doubt it. The tragedy is that if we here keep saying often enough that our Constitution is to blame for the difficulties in the North some people might believe it. It leaves the way open to them to highlight and refer to statements made in the South by people who themselves do not subscribe to some Articles of the Constitution.

From time to time it is right and proper to discuss the Constitution. Certainly I would listen with great interest to those legally qualified to debate it. It is my belief that our people generally would listen with great interest to such a debate. Because this is fundamental to future generations I should like to see any debate on the Constitution conducted in a manner free from politics. If that were done all of us could respect contributions from whatever quarter they might emanate. That would be my simple appeal: when discussing the Constitution leave your likes and dislikes aside. Nobody will accept or give evidence to a contribution from somebody that is credence by politics or political bias.

I notice some people who initiated discussion on the Constitution climb on the old band wagon. They never miss an opportunity of doing so. They believe it is popular to criticise de Valera's input to the Constitution, what the Constitution might have done and might have achieved. If the Constitution were altered tomorrow I do not believe life would be any easier. I do not believe it would alter one iota the attitudes of entrenched people in the North of Ireland. Time will have to isolate the warriors in that part of this country. Present day youth are better educated, more enlightened and their involvement in Europe will be of very great importance and help to them in this respect. To alter the Constitution in the belief that that will help to bring about a better understanding in the North of Ireland, is a folly to which I would not subscribe.

As somebody with no legal or academic experience, nevertheless as an elected Member of Seanad Éireann, one of the institutions of State, I should like to say a few words on the Constitution. I am thankful the Government have allowed time for this debate. Although only 50 years old, Bunreacht na hÉireann is one of Europe's most senior Constitutions. A number of our European partners have adopted constitutions of more recent vintage. Indeed it should be noted that France has adopted two constitutions since World War II.

A constitution creates institutions and lays down the basic rules by which a State is governed. It cannot, by itself, promote economic and social development but these may be seriously impeded if the institutions established do not function properly. Therefore, a constitution must create workable institutions. It must clearly define their functions and cause in order to avoid conflict. Of course whether society can provide people to operate them properly is a different question. A constitution which could be too easily amended, say, by a bare parliamentary majority, might prove a frail guarantee to those living under its provisions. The Irish Constitution avoids this by requiring popular approval, by referendum, of all amendments. This while avoiding the undue flexibility of the 1922 Constitution, seems, at times, to be unnecessarily rigid.

One solution to this problem could be to divide the Constitution into two documents. The first could contain those divisions which are regarded as fundamental and, as a consequence, be alterable by referendum only. The second document, which would contain any of our institutional provisions, could be amended by a qualified majority of the Oireachtas. Thus protection of our principles would be combined with a considerable degree of working flexibility. Such a division would also do much to counteract the view that the Constitution stands or falls as a whole and that criticism of a particular provision, in reality, constitutes an attack on the document in its entirety.

The Minister of State in her opening remarks this morning, acknowledged some of the very fundamental guarantees in our Constitution — for example, the republican status of our State, our national sovereignty, the supremacy of the people, our structures of Government, of Parliament, of the courts, the judicial review of legislation, the primacy of the Irish language, our acceptance of the generally recognised principles of international law in our relations with other States; fundamental rights such as equality before the law, personal liberty and habeas corpus, freedom of assembly and of speech, the right to form associations and trade unions; the special place of the family as the natural, primary and fundamental unit group of society; freedom of conscience and the free practice of religion.

While I would not agree with all Senator Murphy had to say today, I was pleased to hear him mention that part in relation to the free practice of religion and the number of religious denominations listed in our Constitution, especially the Jewish religion. Senator Murphy put to the House in what he called his lecture, the scenario in 1937, around that time when the Jewish communities throughout Europe were suffering persecution. It was right and fitting that they be acknowledged and that their freedom to practise their religion should be acknowledged in our Constitution drafted at that time. That was very important. It was the first time I heard that point made and I welcome it.

I have listed some of the important, fundamental provisions of our Constitution. I would like to speak for a short time in relation to personal liberty and habeas corpus. Reading our Constitution one is struck by the importance given to personal liberty of the individual. Nowhere in the world is the right of personal liberty more protected than in our Constitution. Any person who claims they have been detained illegally, by the agents of the State or anyone else can apply at once to the High Court, or to a judge of the High Court who, in accordance with the Constitution, must inquire into the complaint irrespective of the time of day or night. This arises and, unless it can be shown to the satisfaction of the court that intentions accord with the law, a release must be ordered at once. No person has to justify his right to be at liberty because those who deprive him of it must justify it.

The most fundamental right which a citizen is guaranteed under our Constitution is the right of access to the courts. Here he may challenge any of the Executive or of the Oireachtas as well as the activities of persons and agencies which are not connected with the State. It is an extremely serious offence against the Constitution for anyone to attempt to impede or deny access to the courts. This is so even in regard to persons who are lawfully in custody and who may be serving a prison sentence.

After 50 years the question is asked: do we need a new Constitution? I believe that the structures created under the present Constitution, the Parliament, the Executive and the Courts have served us well and give us no reason to embark on change or experiment for its own sake. There are, however, a few areas in which I would favour amendment, though nothing like enough to justify a wholesale rewriting of our Constitution.

Senator Murphy in his contribution this morning claimed that Articles 1, 2 and 3 were fraudulent in relation to Northern Ireland. If Article 3 implies that we impose our Constitution, our laws and our values on the entire population of this country, then I believe this Article is unrealistic and offensive and should be amended. Indeed, I was showing my young 15 year old son last night what I intended to say in this debate today, and I had in my script at that time that Article 3 should be removed. He said that what should be put in place of Article 3 is the aspirations which were expressed in the Forum report. I think it is very interesting to get the views of young people because our Constitution is a living document and I believe our young people are very interested in it as well.

Before I leave Northern Ireland, Senator Murphy spoke this morning — and I hope I will quote him correctly. I tried to get a transcript of his speech during the lunch break but it was not available. He spoke about the two referenda we had recently, one dealing with the removal of the prohibition on divorce from our Constitution and the other dealing with the pro-life amendment. It was said that any one who said that Northern Ireland was a sectarian State and supported the pro-life amendment and was against the removal of the prohibition on divorce from the Constitution was a hypocrite. I believe that any State that refuses people housing and employment because of their religious beliefs is, of its nature, sectarian.

On the referendum dealing with the question of divorce, I was in favour of the removal of the ban on divorce in our Constitution because to live apart and form second unions and there is no legal mechanism to regularise this, that is an attack on marriage itself, on the very basis of the principle of marriage and it would be well that there should be some State recognition to regularise the situation. I took a different view on the right to life of the unborn and the wish of many people in this country to have it included in our Constitution. We have an advantage over the English Constitution in the sense that ours is a written Constitution. My experience of constitutional law is short but I have a vague recollection of Sir Hartley Shawcross who was an Attorney General in Britain, saying that if all blue eyed babies were to be slaughtered at birth and Parliament was to decree that it would be so because in England Parliament is supreme.

That cannot happen here. We have a written Constitution and the laws that we enact have to be in agreement with our Constitution. I believe that the Irish people, in enacting the pro-life amendment, were far from sectarian. I believe also that it was not against the principle of pluralism. I remember saying in the other House, and I put it on the record again, that pluralism itself can be neutral about many things but it can never be neutral about the fundamental right to life. That is an absolute. If people who stand by that absolute have to bear the tag that Senator Murphy gave them this morning then they have to bear it with a patient shrug.

Under the Article dealing with the rights of private property a number of decisions have been taken in recent years giving people compensation for the loss of rights to develop a piece of land. As a direct consequence of these decisions, many local authorities are now unwilling to refuse planning permission for development projects for fear they many become liable to huge sums of compensation. This is contrary to any acceptable notion of the common good. There is something to be said for careful redrafting of these provisions to make it clear that not every deal concerning property, for example, speculative dealing in a limited natural resource such as building land, is backed by a right to full market value compensation if it is requisitioned in the public interest.

There is also a new awareness in Ireland that community rights are gaining an importance in the public perception relative to the right of the individual. Some of the most contentious provisions in Bunreacht na nÉireann are those which place the balance in favour of the individual rather than the community. If, as a society, we were willing to place greater importance on the rights and needs of the community, there might be considerable scope for change in the coming years.

The Constitution is a living law, a document which dates from 1937. As a law it dates from today when the court interpret its provisions in regard to contemporary attitudes and circumstances. One problem is that the teaching of one particular Church underlined a number of specific articles. That teaching is itself 50 years old. The teaching of the Catholic Church today on the rights of private property and the position of women in society is distinctly different from that which prevailed in the atmosphere of the thirties which is embodied to a considerable degree in our Constitution. The enactment of the 1937 Constitution gave the Irish people a framework or an arena which had not been provided in Irish history and was a major step forward in the provision of political order in Ireland. We have come to take that order so much for granted that we sometimes forget that it was such a formidable achievement. Without our constitutional framework we can have no political beliefs at all. Northern Ireland is a classical demonstration of the proposition. From that point of view we owe a lot to our Constitution.

Finally, those who talk about amending or replacing the Constitution often do so on the grounds that it does not conform with their own ideology. They should remember that they need to persuade not just a debating society but the people of Ireland because it is the people of Ireland whose consent to change must be forthcoming if we are to amend or replace our Constitution.

On first seeing this motion on the Order Paper I questioned whether or not it was a good idea to debate Bunreacht na hÉireann at this time. On the one hand it could be asked if a debate on the Constitution is necessary or relevant given the economic climate. At present the need to bring about national recovery and order in the public finances is of paramount importance to the Government and to the people as a whole. The Government have rightly identified the economy as its major priority.

In recent years we have had a number of referenda. Quite frankly the general public are sick and tired of referenda and have no wish whatsoever to have further national debate on the Constitution. The low turn-out in the recent referenda is sufficient evidence of this. The Constitution and the issue of constitutional reform are very low on the people's list of political priorities. The need to bring about national recovery is of primary importance. On the other hand, Bunreacht na hÉireann is now 50 years old. Given this we should debate the Constitution and its relevance in the Seanad today.

I believe that Bunreacht na hÉireann is a fine Constitution and, to use a cliché, it has served us well. This anniversary should be celebrated. For K.C. The constitutions for most countries in the world are a selection of legal rules which govern the government of that country and which have been embodied in a document. A constitution creates and lays down the basic rules by which a State is to be governed. On this score Bunreacht na hÉireann has been a tremendous success. Bunreacht na hÉireann is essentially Éamon de Valera's Constitution. In having this Constitution passed, Éamon de Valera made a greater contribution to the development of politics in Ireland than any other politician.

In 1937 Ireland had just experienced very difficult political upheavals. Nevertheless Bunreacht na hÉireann laid firmly in place a machinery of Government for the future similar to the British model. This was a major achievement and ensured that Ireland could take its place among the democratic nations of the world. A liberal democratic Constitution was adopted and it is as relevant today as it was in 1937. This machinery of Government is working and the Constitution is a success in this regard.

In recent years a small minority of people have been challenging the Constitution and criticising its provisions. Much of this criticism is concentrated on two or three Articles and it is unfair to suggest that the whole Constitution should be scrapped on the basis of these two or three Articles, given the excellent provisions in the Constitution as a whole.

Bunreacht na hÉireann is criticised because it is said it is a Catholic Constitution with a Roman Catholic ethos, and so alienates northern Protestants. The ban on divorce is also cited as a flaw as indeed is the provision for the Seanad in the Constitution in such a small country as Ireland. The perception of the provisions in relation to women has also been criticised as have the provisions in relation to private property rights. I totally reject the general thrust of these objections for reasons which I shall expand on later.

The major criticism made against Bunreacht na hÉireann by a small number of people is that it is a dated document. It has been said that the Constitution does not reflect the political beliefs, values and standards of the community in the 1980s. I would totally reject this allegation. The Constitution is as relevant today as it was in 1937. Constant judicial review of the Constitution by the High Court and Supreme Court has ensured that Bunreacht na hÉireann does indeed reflect the general political beliefs, values and standards of the community in the 1980s. Mr. Justice Brian Walsh in an article in The Irish Times in December 1987 had this to say:

the Constitution is a living law. As a document it dates from 1937. As a law it dates from today. It is written in the present tense. It has always been interpreted in the light of the circumstances of the contemporary epoch,

Changing judicial interpretations have ensured that the Constitution is relevant in modern Ireland. New meanings are constantly given to new words. Bunreacht na hÉireann has been adapted and developed as society changes. It was never intended that Bunreacht na hÉireann should preserve the status quo. This is a mistake which many people make. Interpretations are not rigid. No constitutional interpretation is intended or can endure for all time.

All this is clearly demonstrated by the actions of the High Court and the Supreme Court in the late 1970s. During this period the judges took a broader approach in interpreting the Constitution and became creative in their approach. In particular a wide range of personal rights were specified which were not specifically mentioned in Article 40 and which are necessary in the modern Ireland of the 1980s. This clearly shows that it was always intended that the Constitution should be interpreted and applied as part of the contemporary body of law. Its interpretations were not to be rigid or inflexible. This has been the case.

Those who say that Bunreacht na hÉireann is dated clearly fail to see the fact that it is a relatively new Constitution. Bunreacht na hÉireann is only 50 years old. However, already it has shown itself to be a senior Constitution in world politics. It is durable and adaptable. It is essentially a liberal and democratic Constitution although it certainly does have a Catholic influence. It has stood the test of time. It has created satisfactory workable institutions and it continues to reflect the basic values of Irish people as a whole. In this overall context it is unreasonable to attack the Constitution on the basis of a few Articles in it. All this is a formidable political achievement on the part of Éamon de Valera.

So-called liberals who have suggested that Bunreacht na hÉireann is not suitable have failed to realise that it protects civil liberties in a way which many other Constitutions have not done. Mr. Justice Brian Walsh in the article referred to above has said:

Nowhere in the world is the right to personal liberty more fully protected than under the Irish Constitution.

In particular, no person may be detained save in accordance with law. Senator Doyle has dealt with that matter. The right to personal liberty is firmly entrenched in the Irish Constitution. Bunreacht na hÉireann also contains many other important rights including the right to the inviolability of one's dwelling. No person's dwelling house may be entered against his will unless it be in accordance with the law.

Of fundamental importance to Bunreacht na hÉireann is the right to access to the courts and the right to vote, which is an integral part of it. It is important to remember that these rights are firmly established in Irish law given that they are spelt out in Bunreacht na hÉireann. Those who criticise the Constitution should remember also that it effectively protects civil liberties.

Also of fundamental importance to Bunreacht na hÉireann is the traditional aspiration to unity firmly embodied in it. Éamon de Valera pointed out at the time of the enactment of the Constitution that the traditional aspiration of our people for national independence, for national unity and for the unfettered control of their domestic and foreign affairs had been recognised and accepted as basic principles in it. Articles 2 and 3 of the Constitution firmly establish this.

In recent times it has been suggested by academics and others that these two articles are offensive to northern Protestants and that they should be abolished. This view is mistaken. The aspiration to national unity is as strong today as it was in 1937, as clearly demonstrated by the results of the New Ireland Forum report. In this report all constitutional nationalist parties on this island said that the particular structure they wanted to see for the whole island of Ireland was a unitary State. To remove this claim from the Constitution would be disastrous and would be a fundamental mistake. The ideal of unity must always be understood, and to change Articles 2 and 3 of the Constitution would indicate to the world that Ireland and the Irish people want their country divided. This is clearly not so.

There is a view also being put forward at present that the Constitution should be made acceptable to northern Protestants. This is clearly erroneous. Fianna Fáil do not accept this theory. Speaking in 1977 the then Taoiseach, Jack Lynch, said the following:

The time to discuss this [that is constitutional change] is when the elected representatives of North and South get around the table to discuss the future of the contry.

It is only when elected representatives sit down to discuss political arrangements for the whole island of Ireland in the context of unity that a new Constitution should be drawn up which would accommodate all traditions of the whole island. Recent history clearly shows that no matter how much we tinker with the Constitution with a view to pleasing northern Protestants they will remain unmoved by our gesture.

What about pleasing southern Protestants?

To change the Constitution at this stage to facilitate the traditions of northern Protestants would be premature.

There are Protestants in the South, Senator Haughey.

I believe that the whole issue of constitutional review should only come about in the context of national unity and that is what I have been saying.

Senator Haughey, without interruption, please.

In general, however, I would think that for many northern Protestants Bunreacht na hÉireann is a fine Constitution in the liberal democratic scheme of things. In the context of a united Ireland, however, I am sure that they would want specific articles included in an all-Ireland constitution and this of course would be decided on by the people as a whole.

Article 41 of the Constitution states:

The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

This Article is of fundamental importance and expresses an essential value deeply ingrained in Irish society today. Clearly the vast majority of people on this island, North and South, recognise the family as a fundamental unit in society, and appreciate the importance of the contributions the family make in society. There is strong evidence to support the view that once the family as an institution is allowed to be attacked and cast aside serious social problems can result. It is the strong emphasis on the family in the Constitution which makes Bunreacht na hÉireann a formidable and superior Constitution.

Critics of Bunreacht na hÉireann also point out that it does not allow for divorce in this country. These critics, however, forget that the Constitution comes from the people as a whole. It was not given to us by politicians or by lawyers or by any particular interest group. The people gave us the Constitution and the amendments which have been made to it. It was the wish of the people that divorce should not be provided in this country.

There are also critics who condemn the Constitution for the fact that it contains provisions for a Seanad. This has been dealt with adequately in the Seanad recently. However, it should be said that the Seanad is capable of reforming itself within the provisions of the Constitution. There is no need whatsoever to scrap the Upper House altogether and to abolish any institution of democracy at this time would be a mistake.

There is no doubt that the Constitution contains a number of ideals which at times may not be in accordance with the reality of modern Ireland. Nevertheless, they are ideals which should be striven for. They are deeply ingrained in our history and culture and we should not allow them to be cast aside by those who have no feel or understanding of them and of the true spirit and traditions of this nation.

I welcome this debate on the Constitution and I intend to comply fully with the time constraints which I urged on the House earlier this morning. For that reason I will summarise my views on the text of the Constitution of Ireland, 1937. This will inevitably mean that there will be a certain baldness in the approach which may tend to emphasise the critical nature of some of the comments made.

I want to make it clear at the outset that the approach I adopt is not in any way dictated or influenced by a political philosophy at all concerned with the Civil War in this country. I just do not take sides on that issue. I regret that the Civil War occurred. I see certain merits on both sides, if I can put it that way. I believe it is extremely important that we move away and forward and therefore I do not approach the Constitution from that kind of an ideological stance. Consequently, I feel that my comments on it will be more objective, will in fact stand back more from the text and look at it in the context of the time and the background against which it was adopted and also the time when we are debating it, 50 years later.

I say, without hesitation, that I am much more concerned and much more interested in the Ireland of 1988 and on from that to the next century than I am about the Ireland leading up to and surrounding the adoption of the 1937 Constitution. That Ireland is relevant to understanding the wording and the approach adopted in the Constitution but what we must be concerned about and what I hope this debate will be concerned about is the Ireland we live in now. I was not born when the Constitution was adopted. Most of the citizens in this State were not born when the Constitution was adopted, and the main focus of our debate should be on where we are now and where we are going.

In that context I conclude that that text of the Irish Constitution has not worn well, to use the expression which other Senators have used in this debate. My considered judgment or assessment of the 1937 Constitution text is that it is dated, inappropriate and that it has not, on balance, served us well.

But, in saying that and in admitting the defects of the 1937 Constitution there should be no cause for serious alarm or lack of self confidence about ourselves. It should not cause us to feel that somehow to express a sense of inadequacy in relation to the 1937 Constitution is semi-treacherous, is language that one should not employ in relation to the Constitution, because all we are talking about — and I want to emphasise this point — is a written text. We are not in any way talking about the whole of the Constitution, because the whole of the Constitution goes beyond and goes much more deeply than the written text adopted by quite a slender majority in 1937.

Again, because of some of the comments made earlier in this debate I think it is worth reminding ourselves that the Constitution we are looking at was approved by 658,105 votes and there were 526,945 votes against, quite a narrow majority. I am not specifically making any political point on that. I am showing that it was a more finely balanced issue in 1937 than might be reflected now from some of the contributions in this House. We are only talking about a written text which was adopted at that time. The importance of that text is that it was grafted on to what went before. It was grafted onto the Constitution of the Free State which had come into being in 1922. It was grafted onto the established independence and role of the courts in our Constitution. It was grafted onto the common law which forms an honourable and important part of our Constitution and law. We did not start with a green field. If we move on from the 1937 Constitution we will not be moving on into a totally unknown territory, into a green field. If we move on from the 1937 Constitution and consider that it is appropriate to adopt a new Constitution, then it would be appropriate to take as part of that new Constitution all the best — and there is a good deal of the best — in the 1937 Constitution, and in addition the fine body of constitutional jurisprudence which has developed under the 1937 Constitution.

In this debate, partly because of the constraints of time which I am strongly in favour of, we have to take sides to some extent on the 1937 Constitution. Do you think it is good enough to last us for another 50 years, or do you not? If that is the question that has to be posed and if that is the way in which we have to take sides, then I am constrained in what I believe is a fair and objective analysis of the 1937 Constitution to say that I believe it is time we examined the whole broad process of devising a new and better basic framework on which to move forward over the next 50 years.

That is not a sentiment which is almost treacherous. It is a mature assessment of a document which was adopted at a particular period in our history, a particularly divisive period in our history, a particular period of a socio-economic nature which is very different from the Ireland of today, which is qualitatively different from this young Ireland, with an outflow of our well educated but unemployed young, where we have Ireland as a member state of the European Community addressing the broader issues in a modern and in a nuclear world. We have to look fairly at the 1937 Constitution.

Senator Haughey suggested that there were minor flaws in the 1937 Constitution which were pointed out. He referred to some of those but felt that at most they might require some amendment but that there was no need for a new text. If that were the case I would not be taking the stance I am. The flaws in the end are part of the fundamental nature of the text and, perhaps, part of the historical period in which it was adopted. They are mainstream flaws. I am not going to talk about minor amendments. I am going to talk about the reasons we should seriously consider adopting a new Constitution. Therefore, I am only going to summarise what I believe are these basic flaws in the maturing of the 1937 Constitution.

First, the territorial claim as expressed in Articles 2 and 3 of the Constitution has contributed significantly to the fear and pressure felt by the majority community in Northern Ireland. It has been a barrier to progress towards peace and reconciliation of the two communities in Northern Ireland and to better relations between the North and South of this island. This was recognised and acknowledged by the all-party committee on the Constitution which reported in December 1967. What a tragedy it is that the approach and the views expressed by that all-party committee were not translated into constitutional change at that time. We had the civil rights movement and then what is euphemistically called the "troubles" starting from 1968 in Northern Ireland, and attitudes hardened. Attitudes down here hardened. Any of us who want to look at the recommendations in that report of the all-party committee can only acknowledge that attitudes hardened after that.

That report was 30 years after the Constitution. Fifty years after the Constitution we are more polarised and less willing to look at the text of the 1937 Constitution and see the kind of fundamental flaws I am identifying. We should be looking at Articles 2 and 3. Since that report of the all-party committee in 1967 a very significant event has happened which has a very significant legal and international law bearing on Articles 2 and 3. I am referring to article 1 of the Anglo-Irish Agreement. Article 1 of the Anglo-Irish Agreement commits Ireland internationally and formally to a text which is not reconcilable with Articles 2 and 3 of the Constitution, with the territorial claim and the wording in Articles 2 and 3. I am not saying there cannot be a claim. I am saying the wording of Articles 2 and 3, as formulated in 1937 and as they have subsisted, is not reconcilable with the formal, solemn international obligation which Ireland assumed under the Anglo-Irish Agreement.

Deputy Garret FitzGerald knew that. It was his intention that Articles 2 and 3 would be modified, but it has not happened. We have that serious basic conflict between our international commitment and the text of our Constitution. That has aggravated the fear, doubt and fundamental unwillingness of Unionists in Northern Ireland to believe the commitment in Article 1 of the Anglo-Irish Agreement. That is the first and very fundamental flaw. I do not think it is a minor matter.

Secondly, despite the removal of the express provision in Article 44 of the Constitution giving recognition to the special position of the Roman Catholic Church, and also naming other named religions existing and established in the State at that time, the Constitution remains a divisive one on religious grounds. This was recognised by a working party of the Irish Theological Association on which I served and which reported in 1972. Seán McBride, who was much lamented in this House a week ago, was a member of that committee. It was chaired by Professor Enda McDonogh. I would like to quote briefly from the introduction to our report where we said:

The compilers are aware that many Constitutions, like the present Constitution of Ireland, express the ideals and aspirations of the majority of citizens within the State. It is not necessary, however, that a Constitution should do so. It is undesirable in conditions of diversity, when ideals and aspirations may in fact be the source of division among the people. The Constitution should be acceptable to all. To that end, it is suggested that the Constitution should be seen solely as the basic law of the State; the law from which the institutions of the State derive their authority and the law to which the citizens of the State can look for the guarantee of their fundamental rights. It should contain nothing which does not belong to the domain of law, nothing which cannot be interpreted and enforced by the courts.

Since that report in 1972 we have had the referendum which included a new subsection by way of the eighth amendment, the subsection dealing with the express recognition of the right to life of the unborn, equating that right to life with the right to life of the mother. We have also had the referendum on the issue of the removal of the ban on divorce, which was unsuccessful. In both cases one could say that that is what the majority voted; that is the way they voted; that is what the people of Ireland said. In answer to that, I would remind Members of this House that majority rule or a majority vote is not a justification in itself for failing to defend and vindicate minority rights in our society. We cannot simply say: "a majority has so voted". That is not an adequate answer. We must look at the quality of our laws and at the way in which we acknowledge and protect minority rights. If we do that, on that issue too, then I think the 1937 Constitution is seriously wanting.

Thirdly, the Constitution contains an outdated and sexist approach towards women which has singularly failed to benefit women in our society, but which paradoxically was relied on to exclude a deserted husband from being able to receive equality of treatment, in relation to allowances and benefits, with a deserted wife. We do not have a deserted husband's allowance or a deserted husband's benefit. When Mr. Dennehy sought to challenge that under the Constitution he was met with that provision which otherwise has not had much substance, where the State recognises that by her life within in the home woman contributes to the State, and so on. It is important to realise that that particular subsection has barred equality between sexes and has not, in fact, been of benefit to women as such.

Fourthly — and this is another fundamental criticism — the 1937 Constitution in its text provides potentially limitless emergency powers to the Oireachtas, overriding many constitutional protections during what is termed "a time of war" as defined in Article 28 section 3(3) of the Constitution. Of course, time of war was extended by amendment, when amendment could still be achieved by the Oireachtas alone, to include a board definition of national emergency. A national emergency was duly declared in 1939 on the outbreak of World War II and that national emergency continued until 1976. I recall the debate in this House when we transposed that national emergency for a new emergency in the light of the situation in Northern Ireland.

I can say as a lawyer that any lawyer from outside the country or any United States civil rights lawyer, looking at our Constitution would not be impressed. He would not be impressed at all with these provisions. They are quite unusually weak in genuinely guaranteeing against the powers of the legislature the position of the individual. Fortunately, we have not seen any substantial abuse of that system and we can be grateful for that There have been a few times of worry when emergency legislation has been either mooted or introduced, but on the whole we can be fortunate that that suspension of the major rights under the Constitution has not caused the problems that it might.

Fifthly, let us remind ourselves that in a Constitution that is supposed to protect the family, it does not, in fact, protect children as well as does the European Convention on Human Rights. In the O'B, v. S. case the Supreme Court ruled that the exclusion of children born outside marriage from succession rights was not unconstitutional. Shortly afterwards, Ireland was found to be in breach of Article 8 of the European Convention for the protection of human rights and fundamental freedoms because we discriminate against children outside marriage. Our standard was lower in relation to the protection of children than the standard of the European Convention. That is worth noting.

Another major area where, I believe, the Constitution does not stand up to examination is on the distribution of power, an area of acute significance to us at the moment where we are trying to adjust to our straitened circumstances and where we are trying in the context of a cake that has shrunk somewhat to be fair and to be equitable in dividing up the cake, and also we are trying to stimulate ways in which we can enlarge the public cake. The distribution of power under the 1937 Constitution to the institutions of State is too centralised. There is an over-emphasis on the power of the Taoiseach and the Executive under the Constitution. There are no proper institutional structures within which to devolve power, either regionally or locally, to an extent that would be possible and which would greatly increase democratic participation. In that regard we would do well to listen to those who keep telling us of the importance of devolving power at the moment in order to stimulate growth and to have greater concentration on proper expenditure at the local level, from Tom Barrington to Professor Joe Lee, the very people who have very cogently argued for a much greater devolution of power within our society. That is blocked or inhibited by the 1937 Constitution.

I said at the outset that because of the time constraint on which we are debating this topic — and which I favour — that it is necessary to state matters in summary fashion, and therefore, somewhat baldly and, perhaps, in some instances not to put in the kind of qualification or the kind of acknowledgment of the strengths of the 1937 Constitution that I would wish. I do believe that there are very important strengths. Some of those obvious strengths are, for example, the independence of the Judiciary and the manner in which the Judiciary has availed of that independence to flesh out some of the silences, some of the unenumerated rights under the Constitution such as the right to marital privacy, the right to travel, the right to bodily integrity and various ways in which the Constitution has developed fairness in our society by a constitutional doctrine of fair procedures and the way in which the Constitution has been a source of independence to us as a country as was evidenced in the recent Crotty judgment where, notwithstanding that there had been an amendment of the Constitution to enable Ireland to become a member State of the Community, nonetheless the Supreme Court concluded that the Executive did not have the power which it had been thought the Executive had to bind Ireland externally without an affirmative vote of the people on that issue.

There are strengths in the text of the 1937 Constitution. What contributes to an open and balanced debate on the whole question of whether we need a new Constitution would be a realisation that if we decide that we should at least open the debate on the question of whether we need a new Constitution, we do not have to abandon any of these strengths. We build on those strengths. We go forward to a new text on the basis of those strengths. It is to be hoped that the 50th anniversary of the Constitution will lead to a broad and open-ended debate on how we can replace the 1937 text with a new Constitution. In that regard the initiative taken by the Progressive Democrats, who are regrettably but voluntarily absent from the Seanad, is a welcome contribution.

However, as I emphasised when commenting recently on the proposals put forward by the PD Party, what we will really need at this stage is a thoughtful and reflective debate on the issues facing us as a society such as the economic issues, institutional issues and the issues of Northern Ireland in a very broad and constructive context, rather than a series of blueprints over which political parties then adopt rigid positions. It would be regrettable if we had in the next few months the Labour Party's text on the Constitution, the Fine Gael Party's text on the Constitution, and Fianna Fáil saying that their text is from the 1937 Constitution from which they will not budge. That would not be helpful.

We need to move forward, not in an abstract way but realising the extent to which the 1937 Constitution has dated and has not developed and evolved to meet the challenges of the late 1980s, and on to the next century. A standard we can use is the extent to which Ireland is becoming a bit isolationist in the area of human rights. We are finding ourselves out of line with developments in the European Community, out of line in protecting the rights of children outside marriage, which has now been corrected by the Status of Children Act, out of line in recognising by not criminalising the behaviour of consenting adults who, by their own adult decision in private, decide on consensual sexual behaviour. Ireland is out of line with the rest of Europe on that. We are out of line with the rest of Europe in relation to the right to shelter and in relation to the way in which we regard homelessness. We are out of line with the rest of Europe in the area of divorce. We are out of line with the rest of Europe in the area of abortion. We are increasingly concerned about our position. Yet, we were one of the first signatories of the European Convention on Human Rights. Ireland was one of the first countries to ratify the jurisdiction of the Commission and Court on Human Rights, and the first case to go to Strasbourg was an Irish case.

In deciding whether or not we need a new Constitution we must refer to the European Convention on Human Rights, the Anglo-Irish Agreement, the basic institutional issues which face us and the basic divisions of resources in our community. On those grounds, not for minor reasons but for fundamental reasons, I believe we need to actively institute a broad debate leading to the adoption of a new Constitution.

I welcome this debate on the examination of our Constitution at this time. After 50 years it is only right that we examine the Constitution and how it has served us down the years. Over the last number of months many Senators felt that we should have a lengthy debate on the Constitution. While I am not privy to all of the submissions that have been made here today, but having listened for part of the time I can say some of the contributions were very good and authentic. The theme coming through is that the Constitution served us well down the years. I agree with that concept.

To whom does the Constitution belong? It is ours. Some political people often think it is theirs; some legal people also think it belongs to them. Of course, it does not. A fundamental right under the Constitution is that it belongs to us all. It is for this nation. Prior to 1937 there were some problems. Because of them we had to have the new Constitution. Nowhere in the world is the right to personal liberty more protected than under the Irish Constitution. No person in this country has to justify his right to liberty. He has that liberty under our Constitution to date. A person should have the right to free movement within his own State, the right to live within his own State, within his own family unit. We are fortunate to have that protected right under our Constitution. According to the law no person, or group of persons, has the right to enter into another person's dwelling house without having a proper legal warrant to do so, and that is a protection we cherish. The most fundamental political right which a citizen is guaranteed is the fight of access to the courts. From time to time, through no fault of the Irish people, they find themselves in the position where they are brought before the courts. If a person does not have the finance to cover the court proceedings, they are entitled to free legal aid under the Constitution.

Another fundamental right that people in this country have is the right to vote. Recently in a referendum the age of majority was reduced from 21 to 18 years. Under previous legislation only a householder or a ratepayer was entitled to vote. Under that right people can choose their own government, form their own unions and legislate for the benefit of their own people. People did not always have that right. They did not always have the right to choose their own government. I was delighted when the age of majority was changed to 18 years. Now every citizen over the age of 18 has a say in the democratic process of forming a government, and in ensuring that a government is formed, and in deciding on the legislation that accrues from it.

The Constitution also provides freedom of speech and freedom to make democratic decisions, whether it be in local authorities, urban authorities, in the Seanad Chamber or elsewhere. I do not see much demand for change. There is demand for review. There is demand for examination. Recently, a political group framed a draft Constitution. I understand in that draft Constitution the territoral claim to Northern Ireland has been abandoned. This was mentioned before by the former Taoiseach, Deputy Garret FitzGerald. Whether you would call his national crusade a famous or an infamous one, there is not a word about it now and it was not a runner at that time.

It is up to the Irish people to decide whether or not Articles 2 and 3 of the Constitution should be deleted. I have my own view on that. I also understand that the new draft proposal leaves out the constitutional prohibition on divorce. It is only quite recently that we had a referendum on divorce, one of the three referenda that were defeated. The English language, I understand, is now accorded equal status with the Irish language. The party's long-standing vote-catcher, the abolition of this Seanad is another one of the draft proposals.

In my view, a strong centralised authority is a practical base on which a Constitution rests. Éamon de Valera had been frustrated in the years prior to 1937 by a very hostile and a very strong Seanad. So much so that the two Governments had severe problems in trying to bring in legislation through that period from 1932 to 1937. At that time the abolition of the Seanad which took place prior to 1937, the disengaging from the Commonwealth and the creating of a Republic were necessary. Later on, after 1937 the first two amendments that came through were brought in by legislation and later on again amendments were brought in by what was known as a referendum. The new Seanad, the one we now all enjoy, is one for which I have the greatest respect and which I would uphold as the highest level and forum within the land for extensive debate on and teasing of all our legislation. It has a very high reputation not alone in the State but also abroad for the way in which we examine our legislation, tease it, initiate legislation and amend it. The laws appertaining to the Seanad provide for five vocational bodies, people drawn right across the spectrum from all walks of life within the State, two national universities having six Members with the Taoiseach having to balance that vocational strength within the Seanad, and this gives us the best type of legislating instrument that there is anywhere in the world.

The Government of the day can now ensure the passage of Bills and legislation for the progressive development of our nation. Prior to 1937 that was not the case and we inherited a Seanad at that time from the early twenties which had views that were not the views of the Government of the day. Because of that, it had to be abolished and reintroduced later.

We have had ten amendments of our Constitution since 1937. The first two were by legislation in 1939 and 1941 and the others were referenda, the democratic decisions of the Irish people. Three referenda were defeated, two on PR in 1958 and in 1968, and one on divorce in 1986. Many times legislation was found to be repugnant to the Constitution in the courts although draftsmen and Government lawyers of the highest calibre felt that the legislation they had drafted was constitutional. Later on, the courts found many pieces of legislation repugnant to the Constitution. That shows that the individual who feels aggrieved under any legislation which may get through the net of our democratic process can still have access to the courts. An individual, a group or a number of people can test in the courts the constitutionality of any legislation. They have done that many times and have succeeded.

Our Constitution protects our civil liberty. It stands up front with the constitutions of Europe and indeed with the constitution of any nation in the world. It is interesting to note than many new, younger, nations used our Constitution as a basis on which to form their own. I note Ghana as one of these nations which have taken our Constitution as a basis.

The Constitution is a protection, a discipline and it is the cardinal rule under which we have to live in this Irish democratic nation. As we all know — and indeed we hear it from day to day in every forum — we have extremists in every nation. We have extremists with varying ideas and ideals of what they would like to see in the nation and what they would like the nation to be. We have many breakaway groups from different organisations who break away because they cannot play within the rules. Many of those have protested vehemently from time to time and, indeed, to a very extreme degree.

You may have in any nation or in every nation a group of individuals who would like to dismantle existing institutions, people who would like to see law and order break down, who do not wish to be part of their heritage. We have some who find it hard to live under Irish rule, some who would wish to do away with our National Anthem — indeed they have indicated that — and some who would wish to change our National Flag. Some would wish to do away with our national games and some would still rather live under the legislation of the English Queen today. All these groups can be accommodated and have been accommodated under our Constitution.

I do not wish to be political in anyway. This Constitution served us very well. I have heard people saying that democratic decision taken through the legislative powers do not facilitate the minority. Of course not. How could a majority decision taken democratically facilitate the minority? What else do you do? You have a refereudum and the people take a decision on a particular issue and that can only be decided by a majority. What is the opposite to democracy? The opposite to democracy is dictatorship and thank God we have not got a dictatorship in this country. We have a democratic State run by the people under the 1937 Constitution that we have today and it is subejct from time to item to amendment by referenda or otherwise. If at any time we feel that a Government under this Constitution are departing from "the straight and narrow", we have the safety valve under our electoral system whereby that Government can be changed at election time. The same applies in all the elected bodies throughout this country. In that way, we are not under a dictatorship; we are in a democratic system that has worked and served us very well down through the years.

We live beside a small part of the country in the Six Counties where, unfortunately, up to 1968 we had not the same type of democratic Government as we have here in the Twenty-six Counties. And what happened? When the people could not endure the laws there and the laws that they had to live under up to then the civil rights campaign started and out of that you had the emergence of terrorism and the subversive organisations that have taken the law into their own hands on both sides to try to run the Six Counties as each side would like. I heard some people here today saying that it is not fair to accept the majority decision; the people in Northern Ireland say they want to be part of Britain until a majority of the Irish people of the Six Counties decide to change that. I would prefer to have it so that the majority the Irish people could change that but it is the majority of the Six Counties. While you have thet type of legislation there— and it is only across the Border from us — it does not work well and it has not worked well.

All denominations and all classes and creeds have lived and worked together in this part of Ireland, the Twenty-six Counties, and have lived happily together. They had the same right to qualify for our universities, the same rights of competition for every job that became available. It does not really matter who you are under our Constitution, you can apply for a job within the State and you are in fair competition with your neighbour without any discrimination.

To conclude, I am delighted that the opportunity arose whereby we could air our views on this legislation. Many, many times people have wished to change our Constitution. Of course they will have an opportunity to amend it at any time. It is a young Constitution, much younger than most nations. We have it only 50 years; it might seem a long time but other constitutions have served for up to 200 years and more. I believe that the real fundamental basis of our Constitution is right. There are times when we must modernise it and if the Irish people feel we should do that then it is their right within the Constitution under our referenda system to do so. That protection, that shielding and the rules that are there are fundamental and serve the Irish people well and I would not wish to see them changed.

The 1937 Constitution is indeed a charter which guarantees valuable rights and freedoms to the citizens of this Republic. At the outset, I want to make it quite clear that this is my Constitution and it is one that I am certainly proud to live and serve under. In saying that, what I mean is that it is a document that has given great freedom and great rights. I respect the people who have worked together to draft it and to enact it but I do not look on it as a sacreu document. I do not look on it as the particular property of any sector or any party; I think we are all happy to have it and if, after the passage of time, some portions could be altered to improve the lot of sectors of our society, then I think there should be absolutely no hesitation in examining the position in looking at our Constitution in trying to build on it and to improve on that work that was started in 1936-37.

I have listened with great interest to the entire debate today, to all the contributions and I think that they certainly have been very worthwhile. I listened to Senator Manning this morning, and indeed to Senator Murphy and I, for one, heard their contributions more in the line of an account of recent Irish history. I certainly did not think, as some Senators seemed to think, that the contributions were in any way derogatory or took from the work of our late President de Valera who drafted the Constitution.

I found the contribution of Senator Murphy particularly interesting as I recognise he is a historian and a man who is able to go back and carry out a certain amount of research. I was taken aback by contributions of Members who expressed offence at his remarks. I did not hear them as offensive. I am not defending any one of my colleagues in particular. The ideals and aspirations that guided the pen of the late President de Valera during the evolution of this document are, I think something to which we should all like to subscribe. I accept Bunreacht na hÉireann as a document of great worth and it certainly guided the evolution of this State. I favour a written Constitution. We are lucky to have one here because at least the ordinary person can see at a glance exactly what his rights are and if he is not able to read or does not have a copy of the Constitution he does not have far to go to get a solicitor or lawyer who will explain his rights and put him on the right road.

If it is recognised that time has eroded the validity of some of the Articles in this Constitution then I believe that they should be amended or changed. That act or proposal itself should not be read as an assault on the memory of the people who drafted the Constitution but as a clear indication of the present generation's desire to build on this document, to improve it, to enhance the guarantees that Bunreacht na hÉireann gives to every citizen.

We accept that there are many different values in this country now compared with 50 years ago. I think that in any century time will bring about changes. Perhaps a less detailed Constitution might be easier to live under but that is a non-legalistic view. Our Constitution guarantees significant rights to the individual and sometimes it is difficult to understand the way the Constitution guarantees the rights and privileges of a small minority of people, especially those with extreme political views who do not in the first place even recognise or accept the Constitution. Taxpayers' money goes to give and guarantee those rights. The majority of people who contest constitutional rights in our courts at considerable expense are people who themselves do not accept this Constitution, who will not swear an oath of loyalty to it or to this country. I think that is ironic and I do not know what can be done about it. The only ones I see really gaining from it are that category of persons. I think only in a country where there are such strong guarantees for the individual's rights would people like that have such freedom.

In common with a number of speakers in the House — and I listened with great interest to Senator Robinson — I think there should be regular or periodic reviews of the Articles and provisions of the Constitution. That work should be almost on an ongoing basis. If such a system were to be set up, people might not look on the work or views expressed in such a all-party or specialist committee as in any way offensive or aimed against any particular sector or party. Even minor criticism should not be seen in such a negative fashion.

Reading through the Constitution over the last couple of weeks it was indeed refreshing to see exactly the areas where the Constitution gets a considerable amount of lip service. For instance, the national flag is something that I would hope is widely respected in this country. It certainly flies very proudly and is honoured in every European capital and European institution and in the United Nations. Generations of Irish people in the United Nations and Irish Foreign Ministers have certainly made their mark and made a tremendous contribution to the evolution of all those international bodies. I think the same flag gets scant respect in many parts of this country. For a flag-waving people, as we surely are, this is a disgrace. You see the Tricolour outside commercial buildings literally in tatters; it is put up for some hooley or whatever and left there until it fades and is torn by the wind. The protocol attaching to the national flag and the observation of that protocol should be the responsibility of some body in this State, whether the Garda Síochána or the Army. It is just nonsense that people can put up a Tricolour as a decoration. We are either proud of our State or not.

I have had the opportunity of travelling in many countries in an official capacity and of seeing different systems in operation. One always makes a comparison with our own country. We are certainly God's own people inasmuch as we are a mass of contradictions: people will fight over their flag; they will want it on their coffin; they will want it everywhere but they will pass with their nose in the air and see a thing in tatters that they would proudly describe as their national flag. That is only a small thing. Perhaps it is a better situation than in the North of Ireland where there is so much trouble about emblems themselves, but there should at least be some respect. I am glad to see many national schools and many colleges now introducing that ceremony of occasionally hoisting the flag.

Nowhere in the world is there a freer people. Many people find the institutions of the State burdensome and expensive and they think we could save the taxpayer a lot of money if we did away with the Seanad and I suppose the Dáil and perhaps the Department of Foreign Affairs. There is no need for an Army in this country, people will tell you. Those institutions that some unthinking taxpayers find we could do without are the very institutions that guarantee the right of the individual. I do not know of any other country in the world where the individual does not have to have an identity card, where people are free to come and go. There are many countries where one has to have a pass or a certificate or a licence to go from one town or one city to another. Everybody knows that. We have complete freedom here.

Under the Constitution we are a democratic bicameral system. That system may be looked upon as wasteful. In no other free democracy has the individual citizen freer access to representatives, whether they be Senators, Deputies, councillors, or Ministers. Here one can literally walk up to a Minister in the street and there is absolutely no danger of one being apprehended by police or Army. You can put your case and you will get a hearing. This is unique to this country. I do not think that public representatives in the UK, which is our nearest neighbour, are as freely available. That freedom of movement and that freedom to complain and to go right to the top is as a direct result of the institutions in this country which guarantee the right of the individual.

The vocational requirements for a nomination to contest the Seanad election is special and ensures that on every issue a cross section of informed views are available and that there are valuable contributions in the enactment of legislation in this House. The country, the anti-bodies will say, could undoubtedly be run better and more economically by one man or one party and for possibly a fraction of the cost. I would emphasise that the cost in this case would be purely punts or pounds because if you had that kind of one man show or dictatorship and there are unfortunately hundreds of them on every continent in the world, the cost of having that kind of a substitute for our bicameral system would be the rights of the individual. In other States people have identity cards and tags and they need passes to go from A to B. They certainly have not got a voice and they have no one to complain to. They probably survive one step better than the slaves of the historic past. I hope that the people will read our Constitution and will value the freedom, the rights and the guarantees that this document provides for them. We must add to our democracy and strive for greater efficiency and hence a greater quality of life.

I have listened with great interest and indeed respect to the views of the speakers here all morning. While I have great respect for the Constitution and for the people who wrote it and who helped to enact it, I do not think it should be something that is untouchable. If the people who study such matters — I am not talking about pressure groups — the lawyers and those whose job it is to study the Constitution feel that amendments should be made to it which would enhance the guarantees and the rights of sectors in our population then I think this document should be looked at and updated. We do not want a document that is untouchable and that we cannot change. This country has made tremendous progress in the last 50 years under this Constitution and I am confident that the coming generations will improve on the work that their parents and grandparents have achieved in the past. That cannot be attained if we decide we are not going to make progress. Even in constitutional matters we should be progressive, should have an open mind and should strive to conserve every possible Article that will continue to enhance and guarantee the rights of the Irish individual.

I am very glad to have had this opportunity of commenting on this important document. I do not like to describe it as a historic document because it is not part of history; it is part of our everyday lives and it is important that it is respected and protected. I hope that, as the years go by, it is amended with the one objective of improving the living conditions and strengthening the guarantees and rights of every single individual in the State. It is a document on which future generations can depend for the kind of freedom that is so important and yet so scarce in the world.

There are a few areas that have been left behind in the last 50 years and I hope they will be looked at soon. I would like to see the Taoiseach setting up another all-party committee to perhaps review this Constitution and update it. Even if amendments are not made it is no harm to put work into it to show that we, this present generation of Irish people, are equal to any in the past. I hope that every single generation will be able to contribute and add to this document so that the quality of life and the guarantees we as citizens enjoy in the eighties will not be just part of the last 50 years but that in future this document will be meaningful and will be something that we will all be able to look to and continue to respect.

I will begin by saying that because something is not 100 per cent wrong it does not mean that it is 100 per cent right. That may well be so in this case. It has been argued throughout the day that the Constitution by and large served most of the community well. I submit that a Constitution is not framed just to serve most of the people. It should have regard to the special aspirations of all the people and not only in respect of family affairs and so on. For example, we talk about climbing the territories of Northern Ireland but yet if a referendum is held there are 822,000 people who are not eligible to vote or to use the Constitution that claims the territory on which they live. That raises the question as to whether the wording of Article 3 should not be replaced by a provision, as a declaration of the aspiration or that territory, for all Irishmen be reunited in harmony and brotherly affection. That was proposed by the constitutional review committee of 1967 but it got no further than that.

While I cannot say that the Irish people have suffered drastically as a result of the Constitution as it is written, there is no doubt that it needs to be reviewed, particularly in relation to the family and education. Those areas have given rise to many difficulties in the framing of legislation, difficulties which have impeded reforms. I am in favour of a review but not necessarily by an all-party committee. All-party committees find it difficult to leave their biases behind them when they enter into discussions. A feedin from all parties to some sort of convention might be ideal.

We should seriously consider reviewing the Constitution. It has to be admitted that since 1967 many things have happened and amendments have been made to the Constitution. One could argue that the Constitution of 1987, with these amendments, is remarkably different from the one implemented in 1937. You would wonder whether these amendments have not made it more complex and that is where the argument arises. The Constitution needs review from time to time rather than amendment.

The courts of justice of the European Community at Luxembourg have made clear the effects of EC membership and certain cases can be quoted. Many matters of social policy which are given effect by way of directives made by the Council of Ministers have a direct effect on us. That is another argument for the Constitution being overhauled rather than amended.

As I said earlier, a number of amendments have been made to the Constitution, some of which touched on the institutions of the State and on sensitive social issues and matters of individual rights. For example, with the third amendment in 1972 the State was empowered to join the EC and that has had profound and fundamental affects not alone on the social and economic area but on the manner in which the institutions established by our Constitution now operate. If any other argument did not hold up, the argument that our joining the EC has affected our legislation through directives, through the rulings of the court and so on proves that the Constitution needs much more than amending at this time. Some people have described joining the Community as nothing short of a revolution as far as our Constitution is concerned because of the effects it has had on it. Naturally when we joined the Community we did not appreciate what was going to happen.

The Labour Party campaigned against our entry into the EC but I doubt very much that anyone understood — I certainly did not — the complications that would arise in regard to the Constitution. If they did, the campaign would have been much stronger and more successful. I did not know the consequences nor did most of the Irish people, even though I campaigned against entry. I thought there should have been some special arrangement for Ireland. Great difficulties have been caused to us and to the Constitution by our entry into the EC. That was not the only amendment we made to the Constitution. We made other amendments which did not have such a profound effect on Government institutions under the Constitution, for example, the giving of a vote to 18 year olds. That had the desirable effect of getting young people involved in political life. At least that is what was intended even if it did not succeed.

The fifth amendment was also an interesting one. It deleted those provisions of Article 44 which recognise the special position of the Catholic Church and also certain other named Churches. I will give an example of how far we have advanced from the idea of special recognition for the Church. In December 1934 Dr. Dermot Keogh tells us in his book, The Vatican, The Bishops and Irish Politics, 1919-34 that a meeting between the Minister for Justice and a delegation of bishops had taken place at which the bishops expressed the view that amendment of the law in relation to dance halls was very urgent. Dr. Keogh tells us the delegation deplored the dance hall system as incapable of proper control and as pitfalls and centres of scandal for the young and innocent. It was proposed that ownership of halls should be vested in the clergy of the parish, that young girls should not be admitted unless accompanied by parents while gardaí should be at the entrance at all times and dancing was to end at 11 p.m.

That was in 1934 before the Constitution was drawn up and it certainly brings to mind the "Ballroom of Romance". I think people will agree that when the Constitution was being framed in 1937 that sort of influence was at work and that is the reason I quoted it, not in an anti-clerical way. Consequently, it was a very welcome development that the fifth amendment deleted the provisions of Article 44 which recognised the special position of the Catholic Church and also certain other named Churches. I do not think the Church has suffered very much as a result whereas all sorts of hornets nests were raised before the deletion with regard to the attitude of people to the Church and so on.

In 1979 the sixth amendment added a provision to Article 37. It was designed to remove any doubt about the validity of adoption orders made by adoption boards. Again this was a good development. Taking the fifth and sixth amendments on balance, they outweighed the problems the Government suffered as a result of entry into the EC. Certainly those two amendments did nothing but good. In the area of adoption there is still quite a lot to be done. Nevertheless the amendment was a welcome and a good development.

In 1979 Article 18 was amended to permit the election of Senators by universities and other institutions of higher education. Those members are now elected by the National University and the University of Dublin. That was another worthwhile development.

In 1983 the eighth amendment established the right to life of the unborn with a guarantee that the State respect and, as far as practicable by its laws, defend and vindicate that right. This was a controversial issue but it must be seen as a praiseworthy move. The question of interpretation is a different matter and has given rise to some difficulty. Nevertheless, it was democratically dealt with. It was a good amendment at that time and cleared the air because there was controversy about the matter and it was decided that that was the best way to deal with it. What happened during the course of the campaign is not relevant to whether or not it was a good or a bad move. Some of the things that happened in the campaign were deplorable.

The ninth amendment gave certain British citizens resident in Ireland the right to vote in elections to Dáil Éireann. In the most recent amendment, the tenth amendment, the State was given power to ratify the Single European Act. The Labour Party were not very enthusiastic about the Single European Act. I was very concerned about entering into that sort of an arrangement because it could result in the shedding of more and more of our neutrality.

Some people believe that the more freedom a State gives you, the more it protects your interests and the more security it gives you, the more you owe it. The signing of the Single European Act gives us security through its governing rules and bodies and our rights are protected by access to courts and so on, but as a result we owe more to the European Community than we do to our nation. In that light it would be very hard to become conscientious objectors. We were afraid we would lose our neutrality — we are not big arms producers as are Sweden, Switzerland and so on — and it was in that context that we disagreed with the amendment but it was made nevertheless.

I am not saying the Constitution should be reviewed because The Labour Party, The Workers' Party or someone else do not like what is in it. We believe that a lot can be done to improve the Constitution as it has existed for 50 years. We have had to make amendments to it on a regular basis. Some of the campaigns were very divisive of their very nature. We should be at a stage of unity of purpose with regard to reviewing the Constitution in toto. We are a Republican democratic State established by the Constitution and there is a constitutional emphasis on fundamental rights. We have signed the Single European Act and the Constitution has been badly affected and will be affected again in the future by directives and decisions which were taken.

The process of judicial review is a delicate one. It involves legitimate incursions by the court into the executive and legislative spheres. It is a process that has given rise to a great deal of controversy. Some senior politicians believe that in some instances the courts have gone too far. It has been suggested that the courts should exercise a self-imposed judicial restraint. Even though we might not agree with the Crotty case versus the Taoiseach, it was a problem that arose out of the Single European Act and consequently the country was put to excessive cost. After Crotty won the case it then had to go to a referendum. I submit that in the light of the improved educational standards and the talent that is available to us, there should be a review of the Constitution, which has been in existence for over 50 years, but not by an all-party committee. I think some sort of convention is needed.

All sorts of difficulties arise with the Constitution and cases are brought to the District Court and the Supreme Court. Members of both Houses of the Oireachtas should give this matter serious consideration. I am glad this motion has been put down. Given the economic and social problems which we are confronted with, I do not think we can afford to tolerate a situation where 15 members of the Government, who are charged with the daily management of the nation's affairs and planning the nation's future are locked into or under siege by the Dáil. In the Constitution we are at times locked into the Dáil in the sense that when we get into difficulty we start looking at the Constitution and inevitably wind up with a referendum.

We should attempt to evaluate Parliament to its proper place in the Constitution. The Oireachtas has rights but there must be some measure that would prevent us from having to hold a referendum every time some difficulty arises. The Members of the Dáil should be able to make decisions on matters that now have to go before the court and, when that fails, to a referendum. Great difficulties are presented to Members of this House in trying to deal with constitutional matters. It would not be a bad idea if we came to terms with the fact that any review of family rights and the Constitution itself might embrace the question of whether Members of the Oireachtas should not have more powers than they have at present. I understand there was an agreement that the speakers would not go on beyond 4.30 p.m.

An Leas-Chathaoirleach

The agreement is that we do not call a further speaker after 4.30 p.m. The Senator has seven minutes remaining.

The Chair is very kind. The current position is that the Government cannot fully control Parliament, for example, they do not have a majority. That is how it looks in the immediate future. This has been the case in the past. That renders it all the more necessary for the Constitution to embrace in its provisions the question of Members of the Oireachtas being able to assemble and, by motion, be able to take action on matters that might otherwise have to be referred to our courts.

We are interested in pursuing the matter of the Constitution being reviewed. It should not be delayed any longer. We shall not receive any support from the present Taoiseach. He has stated quite categorically that constitutional reform is very low on his list of priorities. The prospect of any initiative, in the absence of sustained public pressure, is fairly slim. That is the Taoiseach's observation. Certainly we shall not see any initiative taken on that matter by the present Taoiseach.

The Labour Party will have to continue pressing for constitutional reform at every possible opportunity. We feel the best way to approach this task would be to seek a broadly-based national forum of the conventional type I mentioned earlier. We would seek submissions from special interest groups as well as from Members of the Dáil and Seanad before any work would begin on redrafting. I am not contending that a substantially-amended Constitution would not find favour. A substantial review of the Constitution must be the minimum designed to meet the needs of our society as we move into the 21st century.

The Labour Party would like to see a pluralist-oriented document emanate from this suggested forum with no privileges being given to any particular church or religious group, a Constitution which would guarantee that the interests of society, in general, would take precedence over those of private property, a Constitution which would contain a special commitment to Irish neutrality and non-alignment.

As a society we are very often critical of the failings of other countries. Very often we show great reluctance to identify and confront our shortcomings. There is need for a total revision of the Constitution by this proposed national forum. In any such revision — though admirable were the attempts of Eamon de Valera in 1937 — we should try to break loose from much of its content. On balance — when one examines campaigns held during referenda, at the special positions still afforded certain sectors of our society, one sees how some groups can gain ascendency over others in society. One can only come to the conclusion that the Constitution, as it stands at present — despite the 1967 amendments — has been divisive. All of us have been long-fingering its revision too long. It is time we ceased to long-finger such review. We cannot forever be looking over our shoulders — with a minority Government — to ascertain whether the Government will fall when somebody outside decides to take some matter to the Supreme Court. It will be the intention of the Labour Party to keep pursuing the matter of a constitutional review through a national forum with an input before the drafting begins, with submissions being considered from all interest groups to ensure we have a Constitution that will take us into the 21st century.

Debate adjourned.

An Leas-Chathaoirleach

When is it proposed that the House sit again?

It is proposed to adjourn the House until 2.30 p.m. on Wednesday, 10 February 1988.

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