Seanad Éireann debate -
Thursday, 11 Feb 1988

Vol. 118 No. 10

Fiftieth Anniversary of Bunreacht na hÉireann: Motion (Resumed).

Debate resumed on the following motion:

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

—(Senator W. Ryan.)

Mr. Lanigan

I do not intend to delay the House too much in discussing this matter. I appreciate the fact there was a demand that a discussion should take place on the Constitution at this stage. The debate up to now has been very constructive and, even though some people may not agree with me, has thrown up very little that is new. I suggest that the debate has not thrown up any major reasons for abandoning the 1937 Constitution.

The 1937 Constitution is a document which has afforded the people of Ireland a number of rights which have stood the test of time. There is no Constitution that could ever be devised that would suit every circumstance that could arise in the future or that could satisfy the aspirations of everybody in the State for which it was drafted. It has been suggested that because the Constitution is 50 years old it is an out-of-date document and that it is not suitable for conditions as they pertain today in this State. Certainly there have been changes in the State in the 50 years of the Constitution but there have not been that many radical changes in people's attitudes. Changes have taken place in living conditions. There have been changes in certain mental attitudes but I do not think the people of Ireland have changed that much and even though there may be some minorities who may feel they are not protected in the Constitution, I feel that, generally speaking, the Constitution has been of value to everybody in the State.

Much has been made in the debate of the fact that the Constitution in 1937 was not passed by a large majority, that the majority in favour of the Constitution was quite narrow. That is no reason to consider it should be abolished. The Constitution of the United States is many years older than the Constitution of Ireland and I do not think that in the United States there is any suggestion that the Constitution should be overruled because of age and superseded by a new Constitution.

In the years the Constitution has been on the Statute Book certain people have taken issue with certain parts and have had the opportunity to challenge certain aspects of it through the courts and referenda have been held: in some cases the Constitution has been upheld and in a small number of cases it has not been upheld. The value of the Constitution is that it gives a basis for discussion and it also allows persons or groups who feel they are being harshly treated by it to seek changes and there is no obstacle put in their way in addressing themselves through the courts, through the Parliament and through the people.

The arguments that have been stressed most relate particularly to Articles 2 and 3 of the Constitution. I do not agree that we should allow any changes in this area at this time. I do not think that by changing Articles 2 and 3 we are going to get any basic change in the attitudes of people we might be trying to court. The day we start talking about changing Articles 2 and 3 is when everybody in this island is sitting down together within a single State to try to formulate a governmental policy and statutes for a Thirty-two County Republic.

The Government's overall aim and the objective of Fianna Fáil have been to seek the reunification of this country, and I mean a genuine reunification of minds, of its people and, equally, a reunification in terms of the physical boundaries of our country. I would not agree under any circumstances at present that we should abandon the aspirations contained in Articles 2 and 3 of this Constitution.

Much has been made of what has happened historically, the fact there are certain groups of people who have been discriminated against in terms of the constitutional ban on divorce and the prolife amendment. The people have spoken on both of these items and the Constitution has enshrined within it the rights of people to come back again if they feel that changes should be made. Because certain constitutional matters have been fought and either won or lost does not mean that is the end of the story. There will always be another day for people who feel strongly enough.

The Constitution, it has been said, was de Valera's Constitution. I do not agree totally with that. There is no doubt but that Éamon de Valera played a major part in the drafting of the Constitution and that much of what is in it were his thoughts, but those thoughts did not come totally from him, they were the result of noting the aspirations of the Irish people, the totality of people in this country. It has been said that the Constitution was very narrow in terms of its aspirations towards nationality and religion. There have been changes made in the religious aspect of the Constitution. I do not think the Constitution was meant to be "anti" any particular body of religion or people of no religion. It reflected the attitudes of the majority of the people of the country at the time.

The debate should take place. I do not think there are many people outside this House who would think it is of great relevance that the Constitution should be changed. They are not very worried whether the Constitution is changed or not. There are many things which are more worthy of note in this House than the fact that we have the 50th anniversary of Bunreacht na hÉireann but that does not take from the fact that it is always useful to debate or discuss any instrument of State.

There has been talk about Seanad Éireann. The debate on whether the Seanad should stand as an institute of State has been one of the matters brought forward by certain people and I have no doubt that it is for the best of reasons that it has been brought forward. That debate is not of major importance and there are not many people outside this House who would lose too many nights sleep worrying about the Seanad. Seanad Éireann — which was set up under the 1937 Constitution — has played a major part in legislation. Unfortunately public perception of what goes on here is not as good as it should be, but perhaps that is a good thing. This House does not get the media attention it deserves. Perhaps the level of debate on Bills that come to the House might be better. The legislation was introduced in this House down through the years was all the better for it. I am pleased that over the past year we have seen an increase in the number of Bills coming to the Seanad. Those Bills going to the Dáil have been improved.

I have mentioned the issue of divorce and Articles 2 and 3. The abortion issue is one that comes up again. In all cases of matters which are of relevance to people who have a vested interest in the sense they are in a marriage they want to get out of or they are separated and want to get married again, a debate on a matter like divorce cannot be anything but divisive and indeed it can get into a problem area in the sense that things are said which are at the edge of sanity at times. Nevertheless, people have the right to debate these issues, they have a right to take them to the highest level and the Constitution gives them that right. For that reason the Constitution should not be tampered with at this stage.

The issues of divorce and abortion and other items in that area are issues which are the concern of most religions and not just Catholics. They are also of fundamental importance in any sector of State. The right to life is a basic human right and the State is properly concerned with how and to whom that protection is extended. The State also has a legitimate concern on the question of marriage and the support of marriage as an institution. There were many reasons other than purely religious ones which had a bearing on the outcome of the recent referendum on divorce. These debates should not be reopened at this stage. Allegations of Catholic bias have been made. I do not think it is a matter of Catholic bias. It is a matter of looking at the situation as it is and accepting it as it is.

Private property has been referred to by a number of speakers. The Kenny report on building land was considered by the Joint Committee on Building Land which reported in 1985 and they did not recommend any change in the Constitution. Of course the Constitution does not give a total right to property. The Constitution does give rights of private ownership and that that private ownership should be to the benefit of the people of the State as well as the people who actually own the land. Because of problems which have arisen in the planning area over the past number of months, the situation regarding the ownership of land and the rights of ownership are being considered at present and I have no doubt but that legislation will come before us in the near future. Many people have been disturbed that because of, if you like, flaws in the planning area, certain people have been allowed to amass substantial sums of money by virtue of the fact that they bought pieces of land with planning permission, which was not suitable to the area. The taxpayer then had to pay enormous sums of money in compensation to people for possession of land to which they had no real right. I would sincerely hope that legislation in this area would be brought forward in the very near future because legislation can deal with the problems of the ownership of land and the rights of land. I do not think that it needs a constitutional change.

It is felt there are many things that are constitutional matters. I do not think that in all cases they are constitutional matters, and that they need to be addressed by amendments to the Constitution. If legislation in areas of family law, the laws of succession, law regarding children and, in particular, in land, was brought up-to-date, the Constitution would be seen for what it is, as an over-view of the aspirations of the Irish people.

Within that Constitution people have more rights than the people of any other country I know of and the people have the right to take issue with any part of the Constitution. The people decided on the Constitution which was brought in at the instigation of the Government of the day and of Mr. Eamon de Valera in particular. Nevertheless it was the people who gave us this Constitution and it is only the people who can change anything in the Constitution. For that reason the Constitution has not alone served us well. Tampering with small items in it would do nothing to give any greater freedoms or any greater responsibility to the people of Ireland. For that reason I do not think the case has or could be made for major changes in the 1937 Constitution. I welcome the opportunity the debate has given us to talk about it and indeed to congratulate the vision of Eamon de Valera when he set down on paper our Constitution.

Mrs. Bulbulia

I am very pleased that time has been made available to the House to speak on the Constitution which celebrates a particular milestone this year, in that it is the 50th anniversary of the establishment of our Constitution. I did not understand the seeming reluctance on the part of the Government party to grant time for this debate because our Constitution is important and significant and it is timely that politicians of this generation should have a say as to whether they feel it has served us well and as to whether it is necessary to bring about change or even to talk about the possibility of change. I am pleased that eventually the Government side of the House decided to give a very generous amount of time to this debate because over a period of two Thursdays we have been given the opportunity to make contributions on it.

Mr. Lanigan

On a point of information, there was never a reluctance on the Government side to allow time for this discussion. The only reason for any delay was because of the fact that there was so much legislation coming up in this first session that there was no time to take it. The very first opportunity we got, we allowed for a debate. I could not let that pass without comment.

Mrs. Bulbulia

Thank you for the clarification. I did say "seeming reluctance". I also spoke about the generous allocation of time, so I believe I have been fair.

In speaking on the Constitution, it is extremely important to refer to the historical backdrop against which it was enacted because it does reflect that backdrop and very often that is a reason why today's Irish citizen feels a certain impatience from time to time with the Constitution. It is important to make the point that all written constitutions, to a greater or lesser extent, are historically conditioned. They derive from the historical experience of the State to the ordering of the affairs at which they are directed and to the particular circumstances of the time when they were enacted. The extent to which these factors, the latter in particular, influenced the appropriateness of constitutional provisions to further generations depends in some measure upon the degree to which the Constitution is rigid or flexible.

In the context of debate in this House on the subject last week, there was quite a deal of reference to whether the Constitution could be regarded as a rigid or flexible document. By "rigid" in this context I mean that the provisions are so framed as to be binding on the Executive and Legislature to an unusual degree and liable to very precise and potentially even legalistic interpretations. The Irish Constitution, relative to many others, is both historically conditioned to an unusual degree and rigid. Bruce Arnold described it recently as "a caged beast not benign and biddable, but something of a handful." I thought that was an interesting comment on the so-called rigidity of the Constitution.

To call a Constitution "rigid" is not necessarily to be critical of it. Sometimes that kind of rigidity can be seen as inconvenient but it is a measure of its capacity to protect human rights, both individual and collective, against threat or erosion, intended or unintended, by an Executive or Legislature. However, irksome some of the consequences of an historically conditioned Constitution may be for later generations far removed in time and in their historical situation from the circumstances that gave rise to the shape of the Constitution, it may be a serious mistake to dismiss too lightly the value that Constitution has had for the evolution of the State at the period when it was enacted. It is easy for those of us living in Ireland in the late eighties to identify in the Irish Constitution many features that may seem dated or irrelevant to contemporary concerns, but I reiterate that these features must be seen in their own historical context if their contribution to society half a century after their enactment is to be appreciated.

In the recent general election less than 2 per cent of the electorate in the State voted for candidates put forward by an non-constitutional party, Sinn Féin, but in 1923 some 30 per cent of the electorate had voted for such candidates, and even after Fianna Fáil's formation in 1926 and entry into the Dáil in 1927, a large minority of the population continued to withhold their full consent from the constitutional structure that had been established following the Anglo-Irish Treaty of 1921. It is true that many of those who found the 1922 Constitution unacceptable voted for Fianna Fáil after that party's decision to enter the Dáil and to play their part in constitutional politics, but they did so with considerable reservations and that was exemplified by Seán Lemass's reference in the late twenties to Fianna Fáil as a "slightly constitutional party". Many others did not vote at all but, to an extent impossible to quantify for obvious reasons, maintained an abstentionist stance, refused to participate at all in the political process during the decade that followed Fianna Fáil's decision to take their seats in Dáil Éireann.

When Mr de Valera came to power in 1932 he saw as his role, taking precedence over anything else, the creation of circumstances in which all the people of this State, with only the most minuscule exceptions, could give their acceptance and loyalty to a Constitution upon which a stable and peaceful democracy could be built. To achieve this purpose, he believed he had to repatriate the 1922 Constitution by having it re-enacted by the people themselves, as had not been and could not have been the case in 1922, with certain adjustments designed principally to remove from the Constitution the monarchical forms which, under the terms of the Treaty, had to be incorporated in the 1922 Constitution.

It is clear, at least in retrospect, that he believed that if he could accomplish this task successfully he would have brought back into the fold the vast majority of those who had felt unable to accept the Treaty and the first Constitution and that this was an objective sufficiently worth while to justify the subjection to it of all other aims of national policy. Of course, he was not 100 per cent successful in this attempt but, as the most recent general election has shown, he was 98 per cent successful over the longer term.

Many speakers in the debate dealt comprehensively with Articles 2 and 3. These are certainly celebrated Articles. I wonder about their relevance now in the light of the New Ireland Forum and the Anglo-Irish Agreement. These provisions could perhaps be defended, even if tenuously, in terms of international law by reference back to the fact that the Anglo-Irish Treaty of 1921 created an Irish Free State comprising the whole island of Ireland, its islands and territorial seas while making provision that six counties in the north-east of the island could by the vote of the Home Rule Parliament, which had been established in that part of the island in 1920, opt out of the Irish Free State and back into the UK. This left open, so it could be asserted, the question of whether the national territory established by the Treaty thus came to exclude these six counties permanently or merely for an indefinite period pending a later decision of the Northern Ireland Parliament, also envisaged by the Treaty, to join together with the rest of the island in establishing in due course a single polity.

While this argument could certainly be made and while Articles 2 and 3 reflect in a particular way the aspiration of the majority of Irish people to national unity, the actual wording of Articles came to be seen by Northern Unionists as a territorial claim and they are seen by many Southern Nationalists, and indeed Northern Nationalists, as a territorial claim. It can be argued, and I think argued quite strongly, that they have a negative effect on Unionist attitude to a future relationship with the rest of this island. It is also worthy of note that they do not specifically exclude the use of violence to achieve national unity and, for that very reason, it could be said and it could be argued, that they have encouraged in some measure the use of unconstitutional methods against the organs of government in Northern Ireland. If there was to be any change in the Constitution, I feel that it would be important and significant to look at those two Articles in the light of all that has happened in recent times where, I certainly feel, that there has been a reappraisal of attitude and a difference of emphasis in relation to North-South contacts and concerns. I am of the school of thought that would wish to see those two Articles rewritten to reflect the new consensus and to exclude specifically the use of unconstitutional methods to pursue an objective.

Many speakers have dealt at length with the Roman Catholic element in the Constitution. This element reflects the historical backdrop against which the Constitution was written. It is true to say that some of the provisions were deeply influenced by a particular form of Catholic social teaching prevalent in the thirties. Recent releases of information following the 30-year rule in connection with the revelation of historical data and information indicate quite specifically the helping hand which the then Archbishop of Dublin gave to Mr. de Valera in the shaping and forming of the Constitution and of the very strong influence exerted by the Roman Catholic Church in the drafting, formation and presentation of that Constitution. A particular article of the time, Article 44.1.2º — which recognised the special position of the Holy Catholic Apostolic and Roman Church as the guardian of the faith professed by the great majority of the citizens while also recognising a number of other named churches existing in Ireland at the date of the coming into operation of the Constitution was of course removed after a referendum in 1972.

The Irish people at that time showed remarkable tolerance, understanding and vision in dealing as they did with that referendum in 1972. I was keenly disappointed that the same vision, tolerance and farsightedness were not exhibited in recent referenda where I found the results to be narrow and very saddening. However, I am an optimist, and I hope that on a future occasion with greater cooperation from the major political party currently in Government it will be possible to effect change to reflect what I believe is a tolerance among Irish people who would wish to see change.

I fault the attitude of Fianna Fáil where they, while not actually obstructing the referenda in question, declined to participate fully or give a lead. I also fault to some extent the attitude of the Coalition Government in that I think — and hindsight is a great educator in all of these things — it is very important indeed to put more groundwork into the preparation of fundamental changes in the Constitution, to be sensitive to mood and, if at all possible, to bring about a consensus of thought politically before embarking on a major change in our Constitution. By not ensuring that that consensus is in place, the risk of failure is very great.

Generally the balance of fault, if one is to make an historic judgment of what happened is to be placed firmly on Fianna Fáil who, to my way of thinking and that of a great number of people, chose to play politics with fundamental human rights rather than bringing breadth of vision and sensitivity to what is manifestly needed in this country, that is, a legal provision which allows for the dissolution of marriage where it has irretrievably broken down. The absence of that legal provision for those people who need it is a denial of a fundamental, basic and human right to many of our citizens who would wish to avail of such provision if it were enacted.

Again regarding the historic perceptions of the Constitution, the influence of the Roman Catholic teaching of the thirties is visible in the tenor and tone both of the Preamble and in the formulation of fundamental rights in relation to the family, private property and education as also in the directive principles of social policy contained in Article 45 which, however, are decorative rather that operative. The inclusion of these various provisions were necessitated by the uncertainty in Mr. de Valera's mind as to whether a new Constitution could be successfully enacted if it were opposed both by the political opposition of the day and the Roman Catholic Church.

In the light of more recent referenda in the eighties he cannot reasonably be accused of having been over cautious in taking precautions against opposition by the Roman Catholic Church as well as political opposition when he drafted the Constitution in 1936. This proves what I have been saying, that it is necessary in promoting any change to ensure that significant groupings are onside, as it were, or at least that the major political party is prepared to recognise a separation of Church and State and to see that civil legislation is necessary in the area of marital breakdown.

There is not much point in complaining that the Constitution takes the form it does in these various respects. If it had not done so it would have failed both to secure the objective towards which Mr. de Valera was bending all his efforts, the creation of circumstances in thich all but the smallest handful of extremists would be able to give their full allegiance to a new Constitution successfully enacted by a majority of the Irish people.

Our Constitution is as it is in these respects because the State came into existence in circumstances which involved deep divisions among the Irish people, the healing of which was certainly a legitimate objective of public policy at that time and one that might not readily have been achieved if a price had not been paid in a number of respects for its attainment. Moreover, one at least of the anomalous features of the new Constitution ceased to be anomalous in 1949 when an Inter-party Government, very different from that of Mr. de Valera, decided to declare a republic and negotiated international recognition of this new constitutional status, together with Ireland's departure from the Commonwealth of Nations. This was effected just one year before India also declared itself a republic. India, however, was not required by the British Government to leave the Commonwealth as the price of its temerity in becoming a republic. Thus, while Ireland's membership of the Commonwealth from 1922-49 may have been seen by some Irish people as anomalous, its departure from the Commonwealth can also be said to have been somewhat anomalous.

Our Constitution must, therefore, be seen in its historical perspective and the task of changing it either by way of amendment or enactment of a third constitution to provide a basic law more appropriate to modern Ireland will have to be faced in time, and must be seen as a necessary price for this or the next generation to pay for the specific and essentially transient conditions in which our present Constitution was enacted.

The suggestion has been made that a permanent all-party committee of senior politicians and experts in constitutional law should be established to review the Constitution. I am of the view that the 1937 Constitution should not be replaced by a new constitution, but I feel it should be subjected to constant review and perhaps to gradual revision. There should be regular, informal contacts between this permanent standing committee and the politicial parties. The necessary sensitivity should be pursued before changes are mooted because appropriate timing for amendments of a Constitution is crucially important.

To have referenda from time to time outside the framework of other elections is a costly exercise and is perhaps not particularly wise. It may be necessary from time to time in an emergency following upon a legal decision to approach a referendum in this manner, but generally with this gradual process of consultation and a standing committee on the Constitution, it should be possible to conduct a referendum in conjunction with European elections, local elections or general elections. This should be accepted as the normal way in which to proceed unless there are unusual, urgent and extraordinary reasons for proceeding in any other way.

I would like to comment on what is referred to as the rigidity of the Constitution. There is a degree of unhappiness about this among some politicians and considerable sections of the public. The Irish Constitution is much closer to that of the United States than to those of other European States in the manner in which decisions of the Supreme Court on the constitutionality of legislation are binding and final and can be changed only by referendum. In a number of cases constitutional decisions of the courts have been judged by many people as undesirable or even perverse. This is a relatively new development. In the early decades of the Constitution there were relatively few court decisions overturning legislation, whether brought before the courts by way of reference of legislation to the Supreme Court by the President before signing it or contestation of the constitutionality of laws by litigants in the courts.

I would like to refer to the absence of awareness of the role of the President in the Constitution or a certain narrow interpretation of it. In order to make my point I would refer back to the abstention of Deputy Tony Gregory in the Dáil on the vote for Taoiseach in March 1987 which saved the political system from a crisis such as does not appear to have been foreseen by the architects of the 1937 Constitution. If all nominees for Taoiseach had been defeated and the President had refused to dissolve the Dáil, how could the impasse have been broken? That whole element of the Constitution needs to be looked at very carefully because there is a gap there. Given the current political instability which looks set to continue for some considerable time, it is necessary to look at the Constitution in the light of what we have learned from the March 1987 experience. I would like to develop that point but time is running out.

The Progressive Democrats with fanfare brought forth a draft Constitution containing a number of substantial changes in the role of the President. Where a Taoiseach has ceased to retain the support of a majority in Dáil Éireann the President may now call a special meeting of Dáil Éireann, consult the Members of Dáil Éireann and on his own initiative dissolve Dáil Éireann unless it nominates a candidate for appointment as Taoiseach within 14 days of its convening. Under this draft Constitution of the Progressive Democrats, the President's role is substantially increased and, I argue, politicised. That would be examined very carefully to see if that is what the people want and if that is the way to deal with such an impasse. In passing I make reference to the populist cry that the Seanad should be abolished which has been promoted in particular by that party and is raised constantly by the media. As I came in today I heard a letter being read out on “The Gay Byrne Show” once again explaining that the national debt could in some way be dramatically altered if the Seanad was abolished. Gay Byrne, to my way of thinking, has an imperfect knowledge of the political system——

Mr. B. Ryan

The Senator is very charitable.

Mrs. Bulbulia

——and the way in which this House and the other House work, and it is tempting to invite Mr. Gay Byrne to spend some days observing both these Houses. In fairness to him, having read this letter, he commented that even he felt the national debt would not be substantially reduced by the abolition of the Seanad. To my way of thinking in the years I have been a Member of this House, having observed it, people who are interested in it make constructive contributions. The fact that the work of the House is not so widely known outside is not necessarily the fault of Members of this House. Certain daily newspapers do not see it as their function to report the debates in this House and there is an increasing trend to highlight the trivial and exploit situations which are not politically pertinent or necessarily constructive and do not advance the course of this society in any way. We have been fortunate enough to debate that in this House on a previous occasion.

It is important not to denigrate our Constitution. We must value it, understand its political backdrop and see it for the document it is. We must have a committee of respected, informed people sit regularly on it, subject it to review and bring forward recommendations for amendment and change that are sensitive and have, if at all possible, the co-operation of all political parties. If necessary, at times we must be willing to take on major groupings in our society, such as the Roman Catholic Church, if in the interest of the generality of our people it is necessary to have legislation which is currently constitutionally prohibited from our Statute Book to assist people to live fully human, happy and fulfilled lives. I am very happy indeed to have had the opportunity to make some contribution.

Professor Hillery

In the course of this brief contribution I want to focus on judicial interpretation which has been the main source of constitutional change, the frequency of referenda, the area of private property and, finally, Articles 2 and 3 as they relate to Northern Ireland and which have cropped up in the course of this debate.

The Constitution is the fundamental law of the State, the basis of all democratic institutions and of our personal rights. I share the view that there is much that is good in the Constitution. I believe it is sound in its fundamentals. It has served us well for over 50 years during which we have enjoyed peace and stability.

I now want to turn to the first area, namely dynamic, judicial interpretation of the Constitution. Judicial interpretation has been the most dynamic source of constitutional change, and over the last two decades in particular the courts have revolutionised the meaning of the Constitution. Since the mid-sixties this dynamic process has adapted the Constitution to contemporary needs and has strengthened unquestionably the protection of individual citizens. The Constitution, therefore is not a static set of rules but rather is amenable to change through judicial interpretation. This is underlined by the following quote from Mr. Justice Walsh in McGee versus Attorney General, Irish Reports 1974:

...no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts.

It must be said, however, that this same process of dynamic judicial interpretation of the Constitution has resulted in the exercise of considerable power by the Judiciary. For example, in Murphy versus the Attorney General, 1982, the court found that the aggregation of the income of the married couple for income tax purposes was in breach of the pledge of the State to guard with special interest the institution of marriage and to protect it from attack. The separate assessment of spouses for income tax purposes required an immediate change in the law to comply with the Constitution.

While acknowledging that the court in this decision was prompted by the failure of the Oireachtas to carry out the necessary reform, the effect of the decision was to impose a substantial financial liability on the State. A source of concern, therefore, is the tendency in recent years for judgments to be made that impose large additional financial burdens on the State without regard to the State's ability to pay. Therefore, I wish to raise the following question. Is it the job of the Supreme Court when interpreting the Constitution to take into account the financial consequences of its judgments or does the answer lie in the Oireachtas taking even more care when enacting legislation to anticipate the financial consequences of our legislative decisions?

I now want to turn to the question of referenda. Amendment of the Constitution is regulated by Article 46. Every proposal, as we know in this House, for the amendment of the Constitution must be passed in the form of a Bill which shall not contain any other proposal and must be initiated in Dáil Éireann. The proposal for an amendment must be approved by a majority at a referendum in which every citizen who has the right to vote at a general election may vote. Some commentators describe it as a rigid Constitution because there is a distinctive amending procedure.

It can be argued that a referendum should not be required for an amendment to the Constitution which enjoys overwhelming public support. Some recent referenda such as those concerning adoption, university Seanad representation and the extension of the franchise to nonnationals were not controversial and commanded unanimous support in the Houses of the Oireachtas. This subject was considered by the Committee on the Constitution in 1967, who considered a proposal for some relaxation of the rigid rules that all constitutional amendments must be submitted to the people for their approval. I now want to pose the question as to whether the time has come to actually relax these rigid rules. Furthermore, of course, the hard pressed taxpayer will be saved millions of pounds if these noncontroversial issues are not put to referenda.

I want to turn now to the question of private property and the protection that is enjoyed by private property under the Constitution. The economic philosophy of the Constitution is set out in Article 43 which acknowledges the right to private property. A balance is struck by the recognition that the exercise of this right ought to be regulated by the principles of social justice. The economic and social philosophy of the Constitution favours a mixed economy, that is, free enterprise, subject to the common good, with the State supplementing, where necessary, private initiative in industry and commerce.

As we know, the constitutional provisions protecting private property have been the subject of judicial interpretation. Some hold the view that the courts have gone too far in the protection of private property. Evidence for this is said to be found, for example, in court decisions on rent control and in the case where the valuation system for the rating of agricultural land was found to be unconstitutional. However, it must be said that judicial intervention in these cases to protect private property has occurred because of the use of arbitrary classifications in the regulation of property rights, for example, the valuation of agricultural land in the context of Victorian agricultural commodity prices. On the other hand, there have been court decisions which underline the right of the State to draw a balance between the rights attaching to private property and the common good, for example, the recent decision which upheld the constitutionality of legislation restricting the development of national monument sites without compensation. Clearly, there is a risk of exploitation and abuse in the area or private property. I want to raise the question as to whether this can be more effectively tackled by a sensitive and vigilant Oireachtas rather than by constitutional change.

I want to refer to Articles 2 and 3 and North-South relations, which, of course, have cropped up in the course of this debate. Articles 2 and 3 obviously reflect the traditional aspirations for national unity and they do attract comment from various quarters from time to time. The Supreme Court has emphasised that the claims in Articles 2 and 3 exist, not in the legal, but in the political order. If in the future major constitutional developments arise affecting the island as a whole, as the all-Ireland forum anticipated, a new Constitution may well be required. The Fianna Fáil position is that a united Ireland would require, among other things, a new Constitution. However, short of such major constitutional development — and that is where we are now — I believe that Articles 2 and 3 should remain in place. What is there to be gained by deleting these two Articles? Would such deletion, as is claimed from time to time, remove an obstacle to improving relations with Northern Unionists?

The record shows, I submit, that deletion would not make a significant contribution to reconciling the people in the North and the people in the South. When the then Taoiseach, Deputy Garret FitzGerald, initiated his constitutional crusade in 1981, Mr. Paisley and Mr. Molyneaux, among others, immediately dismissed the proposal as being of no consequence to them. Before the special position of the Catholic Church was deleted from Article 44 of the Constitution, this aspect of the Article had indeed attracted Unionist attention. However, from the time the special position of the Catholic Church was deleted from the Constitution, there was no further reference to it. In so far as there was any comment on it, it was again viewed as being of no consequence to the Unionists in the North. I believe the same would hold true in the case of the deletion of Articles of 2 and 3.

A further and perhaps more important reason for retaining Articles 2 and 3 relates to the fact that some 35 per cent of the people in the Six Counties are Nationalists. When we talk about reconciliation, we should remember that the minority in the North of Ireland are people who have very different views from those of the Unionists. If we introduce an amendment to delete Articles 2 and 3, would the people of Fermanagh, Tyrone or Derry, most of whom are Nationalists and who believe as we do, in a United Ireland, thank us for amending the Constitution to the effect that the counties they live in are no longer part of Ireland? We must be sensitive to the implications of deleting these Articles for the Nationalist community in the North.

The Fianna Fáil Party seek the unity of all the people of this island through peaceful constitutional means. It is in the interests of both parts of Ireland to have as close and friendly a relationship as possible. We can provide evidence of our respect for Northern Ireland Unionists through constantly improving our social, business and cultural contacts with them. Right now, the Government are committed to enhancing cross-Border, economic co-operation which will result in improving the economies of both parts of Ireland. A number of meetings at ministerial and official level have taken place towards this end. A further stimulus to cross-Border social and economic co-operation will take place when the NorthWest study, which both Governments have agreed to commission, gets underway. Organised economic developments of this kind, together with increased social and cultural contacts, can increase goodwill and confidence between North and South and, practically speaking, offer far more promise than the deletion of Articles 2 and 3 from the Constitution.

I should like to sum up as follows. In fundamental areas like national sovereignty, the supremacy of the people and the protection of citizen's fundamental rights, to name but a few, the Constitution has served us well. It is misleading to portray a debate on one or a small number of Articles of the Constitution as being a reflection on the Constitution as a whole. Nobody suggests that the Constitution is immutable and indeed it contains its own democratic mechanism for change. The Constitution is, and was intended to be, a contemporary document. It is not a static set of rules but can be and has been changed through judicial interpretations which have reflected contemporary ideas and needs.

I drew attention to the financial implications of some judicial interpretations of the Constitution and questioned whether the risk of abuse in relation to the constitutional protection of private property might be more effectively tackled by a sensitive and vigilant Oireachtas rather than leaving it to the courts to interpret the Constitution.

In regard to Articles 2 and 3 of the Constitution, which reflect the traditional aspirations to national unity, it is my view that the repeal of these two Articles would not make any real difference to relations between Northern Unionists and the people of the South. Furthermore, in our desire to improve relations with the Unionists we must always remember that some 35 per cent of the people in the Six Counties are Nationalists who believe, as we do, in a United Ireland. Increased business, social and cultural contacts, rather than constitutional change can contribute far more to increased goodwill and confidence between all the people of the North and the South.

In conclusion, I welcome the motion before us. Like so many others, I am happy to have the opportunity to contribute to the debate which requires us, if you like, to reflect and debate on a Constitution that has served us well for more than 50 years.

Mr. B. Ryan

Ní bheadh sé ceart domsa gan píosa a rá sa phríomh theanga oifigiúil nuair atá an Bunreacht, á phlé againn. Tá sé leagtha síos in alt 8 gurb í an Ghaeilge, phríomhtheanga na tíre. Chomh maith lena lán rudaí eile sa Bhunreacht, ní féidir a chreidiúint go rabhamar mar phobal i ndáiríre faoin atá scríofa síos sa Bhunreacht, mar is beag a rinneamar ó shin i leith faoin teanga. Is beag a rinneamar faoin a lán rudaí cile go bhfuil — más féidir liomsa focal Béarla a úsáid —"aspirations" arda scríofa síos sa Bhunreacht futhu. Is beag ata déanta faoi ath-aontú pobal na tíre. Tá cuid mhaith déanta a chuir structúr foirmeálta ar scoilt pobal na tíre.

Ní hé an Bunreacht is cúis leis an scoilt cultúrtha idir mór chuid de phobal na tíre seo agus an mionlach cultúrtha agus an mionlach creidimh ach polasaíthe agus na dlíthe a chuaigh go speisialta trí Thithe an Oireachtais agus chomh maith trí thithe Parliaminte an Tuaiscirt nuair a bhí sé ann. Do bé as an dá Pharlaimint a tháinig an t-aontas creidmheach atá tagtha ar an dá thír i gcaoi is go raibh cuma Protastúnach ar an Tuaisceart agus cuma Caitliceach ar an Deisceart.

Tá sé ro-éasca do dhaoine bheith ag tabhairt faoin mBunreacht. B'iad na polaiteoirí agus, i slí amháin, pobal an dá Stáit ba chionntach leis an scoilt atá tar éis teacht idir an dá Stát.

I will not translate what I have just said. I do not believe I should have to and I believe it is time that any Member of this House who wishes to speak in either of our national languages ought not to have to apologise either directly or by implication by having to repeat what he or she said in one language in the other language.

As regards the Constitution, which is 50 years old, it has become a liberal fashion to criticise it but since I am not a liberal — as I have often said I am a republican and a socialist and I do not espouse liberalism as some middle road between conservatism and socialism — I, therefore, do not inspect the Constitution from the position of fashionable liberalism, because fashionable liberalism is an extraordinary fluctuating convention which can be in favour of one thing one day and then when the political options change, can change its mind. I remember in the 1960s the number of fashionable liberals who fulminated about the Offences Against the State Act and who now fulminate for even more repressive legislation to deal with the same agencies that were the targets of the Offences Against the State Act then. I retain the same view I always had on that Act, that it is abused in the way it is extended far beyond its objectives to deal with all sorts of other areas.

There has been much talk about the sectarian character of our Constitution and it is extremely fashionable to talk about that. There is no doubt that in the Roman Catholic Church — my church as I like to describe it because I will not give the proprietary control over the Church I belong to to any other group, and it is not "that" Church it is "my" Church — there are expressions that probably we would be better off without. Nevertheless, it is so totally pointless and of such low priority in political terms to talk about deleting those phrases as to be a waste of time. There are far more fundamental issues facing us which most of our political parties are not prepared to address.

I am beginning to be more and more embarrassed, when I am not irritated, by the kind of self-conscious Dublin liberalism which makes itself ridiculous in the way it tries to eliminate what it regards as indications of denominationalism. The most extreme — and it was extreme in its ludicrousness and in its offensive funniness — was that when RTE published a little book for children about Bosco at Christmas and had him out singing Christmas carols, the only Christmas carol they would allow Bosco to sing, for fear they would be accused of not being pluralist, was Jingle Bells. I find it extraordinary that that sort of self-conscious liberalism seems to have invaded people's minds.

I support absolutely the concept of a pluralist state, but a pluralist state is a state in which different views compete and exist together and not one in which a dilution to a mean common denominator exists. It is also a state in which no majority believe that their rights must be vindicated by the deprivation of what a minority regards as one of their fundamental rights. There is no absolute way of determining such a reconciliation between a majority and a minority. A pluralist state is not simply a majorityruled state. In the case of my Church, the concept of pluralism is far from enshrined. My church, as the papers from the 1930s demonstrated, is meddlesome, interfering, hostile to democracy, and questions the whole idea of the competence of ordinary people to rule and control their own lives. However, it is still my Church. I am a believing, practising member of it but that does not for one second blind me to its history, its traditions and to its rather tragic record in the area of human rights.

Mr. de Valera deserves a considerable amount of congratulations, given his cultural background and the times he lived in, for his resistance to some of the more extreme demands of the Roman Catholic Church at the time. It is important to remember that the Roman Catholic Church did not wish any reference to the Church of Ireland to be contained in the Constitution because it did not regard the Church of Ireland as a Church. Mr. de Valera resisted that. A number of other extreme demands were articulated by the Roman Catholic Church, and Mr. de Valera resisted them. That is not to say that the Constitution is perfect. As one who travelled around the country and did a considerable amount of talking and lobbying on behalf of the most recent referendum, I feel our Constitution is defective and incomplete. But it is far too simple to pretend that this is so simply because de Valera genuflected before the Catholic Church and gave in.

There was no political party in the State in the 1930s who would have done a particularly better job on drafting the Constitution than Mr. de Valera did at the time. I would suspect that the Government of which he was leader at the time probably contained a bigger proportion of healthy anti-clerical gentlemen than any other alternative Government would have contained because of the experiences of the members of that Government at the hands of our Church in the War of Independence and the subsequent Civil War. Therefore, they were probably a Government who were more capable of casting a fairly bleak eye in the direction of our Church than any other alternative Government.

There are certain people who are qualified to talk about pluralism because they have a record in the area. Senator Robinson, my colleague here, has a record in this area which goes back almost 18 years since her first membership in this House and there are some people in Fine Gael and the Labour Party who have a record in this area also. But there is one political party who are now travelling around the country with their non-denominational, pluralist constitution and have attempted to claim for themselves some sort of moral high ground as the pure apostles of pluralism. When we had a real pluralist debate and issue to be fought in this country in the recent divorce referendum that party were evident by their absence around the country. When the chips were down and when the people of Limerick and Galway were looking for leadership on the issue of divorce, or were entitled to it from a party who called themselves pluralist, the Progressive Democrates were evidently and visibly absent, if I can coin a contradiction. There is something particularly sickening in the sort of glib and unquestioning way in which the liberalism and pluralism of that party has become part of the national mythology. They have never proved their pluralism on any occasion when it was difficult, when it was unpopular and when it was hard, and that is when people's convictions are best identified.

I think — and Senator Hillery addressed this — that the Constitution should be seen in its totality and in its totality there are a considerable number of achievements in terms of advancing the rights of the citizen that need to be adverted to. I am convinced that we would still be in cloud-cuckoo-land about the whole issue of contraception and access to contraceptives if it had not been for the McGee case; that we would probably be in the usual Irish situation of having laws that were unenforced except when there was some spectacular reason to do otherwise; of having laws prohibiting access to contraceptives in force or on the Statute Book, or else we would have a ludicrous, meaningless and pointless law which nobody could enforce and nobody could understand. It was the Supreme Court who ruled that people had, under the rights to privacy, the right to contraceptives. That is extremely important.

There were also a number of other matters in connection with the laws on bail. Many a Minister for Justice has since railed against the Supreme Court — and I do not mean in any contemptuous way — because the Supreme Court said quite logically that people can be held on bail only because of the possibility of them absconding or that they might intimidate witnesses and that people cannot be held on bail because of a suspicion that they might commit another crime, because that would be a deprivation of liberty which could not be justified. That was an important Supreme Court decision and one that is not popular with the law enforcement agencies or with the law enforcement lobby and a number of Ministers have threatened a constitutional amendment, but I think they have become shy about what might happen to such a referendum.

I also welcome the decision of the Supreme Court on the Single European Act. It exposed in calm language the implications of something that was being foisted on the people and that once the referendum was held, was foisted on the people by an unholy conspiracy between political parties and people of wealth and property and it was virtually impossible to have a balanced debate on the issue where both sides could be discussed because all sorts of peripheral issues were introduced.

The Constitution is, of course, a product of its time and some of the language does seem quaint. Article 41 on the family does seem somewhat quaint. Similarly, the language in the Article on private property does, in 1987, seem to be quite quaint. It is fashionable to query this. Much earlier in my political career I talked a lot about the question of private property and in an ideal world I would perhaps prefer the rights of the community vis-á-vis the rights of the individual on private property to be spelt out. But I no longer regard a constitutional amendment on the issue of private property as being a particularly important issue. There are far more important issues to be dealt with.

It is easy to read into Article 43 and, indeed many other Articles, the working of the Papal Encyclicals. Papal Encyclicals tend to be, among other things, at least verbally naive and simplistic. One can often wonder about the motives of many Papal Encyclicals, particularly ones to do with social justice and whether they really are about creating justice or whether they are to do with preserving the established order by persuading people not to take a dangerously revolutionary route to justice. Nevertheless, the language that is in them, the aspirations they contain and the objectives that they hold are, taken in totality and taken at face value, quite worthy and the idea that because the wording of a constitution reflects a Papal Encyclical that somehow it automatically must be amended is to my mind the sort of trite liberalism that I find difficult to take. What perhaps would be interesting would be if somebody endeavoured to achieve my standards of limited objectives of Papal Encyclicals and the Constitution prevented that, or if we attempted to do what is stated in the Constitution and then found that we wanted to do more, then I would listen more carefully to those who say we must do something about the constitutional amendment on private property.

Let us remember what is in Article 43 of the Constitution on private property. Article 43 is not nearly as binding or as absolute as people imagine and many mistakes have been made about what it means and what it is supposed to mean. Article 43, under the heading of private property, states that man has the natural right antecedent to positive law, to the private ownership of external goods. About six years ago I had occasion to read the revolutionary Constitution of the Republic of Cuba and that also contained a statement on the right of the citizen to own property and also the right of the citizen to own his own home. As a socialist, I cannot insist that some enshrinement of the right of a citizen to own property is somehow anti-socialist, anti-revolutionary, or anti-people. It is not necessarily so; it is a question of how that right is exercised.

The guarantee is that the State will not attempt to abolish the right of private ownership or the general right to transfer. It is important to remember that what the Constitution says is the right of the citizen to private ownership. It does not say much about the rights of property per se; it is the right of citizens to own property and not some sort of right to property per se. Property and property ownership do not have rights; it is the citizen who has rights to the ownership of property and Article 43.2.2º states:

The State, accordingly, may as occasion requires—

and this is extraordinarily wide-meaning

—delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good.

Of course, exigencies of the common good is a particularly good papal phrase. There is no question about that. It is straight out of probably four or five different Papal Encyclicals. It is important to read what was there and, as Senator Hillery said, it was not Article 43 which resulted in some of the anomalous decisions about private property, it was actually Article 40.3 which talks about the rights of the citizen to be vindicated. Let us remember what is in Article 43, or what is not in it, which is more important.

There is no reference to compensation in Article 43 and there is no guarantee that the limitation of the rights of a citizen to own property must be compensated for. We do not necessarily have to compensate citizens for the ownership of property and this has been adverted to not just by me but by at least one judge of the Supreme Court in a long interview in one of our national newspapers. There is no reference that where compensation might be contemplated it must be compensated at the market value. There is no implication contained in the Constitution that the market value must be the limit of compensation. There is no reference either, to any sort of untrammelled rights to private property. It is not written in those terms; it is written in quite different terms. We ought to look at Article 40 to understand the problem. Article 40.3.2º says:

The State shall, in particular, by it laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.

The word is not "attack", the words are "unjust attack". That is what happened in the case of private rented accommodation and in the case of agricultural rates. The Supreme Court did not say that agricultural rates per se were an attack on private property and it did not say that rent regulation was an attack on private property. What it said was that the antiquated and arbitrary method of working out what people's agricultural rates were unconstitutional.

It would have been perfectly feasible, given that the question of the adjusted acreage for the land tax was being carried out at the time, to have reintroduced the equivalent of agricultural rates on the basis of a scientific assessment of the value of land ownership. There was no constitutional obstacle to that. Equally, in the case of private rented accommodation there is no constitutional obstacle to regulating private rents. The only constitutional obstacle was to what the courts saw as an arbitrary and unjust form of regulation.

What is important, therefore, is that we should not allow ourselves to be backed into a blind alley of alleged constitutional obstacles when in fact the problem is a legislative one which can be dealt with by the Oireachtas.

I am convinced that the real problem with private property in this State, if there has been unjust operation of private property and excessive profits made, is not a one of a constitutional nature; it is a problem of the extraordinary conservatism of at least two political parties, and probably three, and an unwillingness to deal legislatively with the injustices that are manifest. We have the ludicrous position of one member of the Supreme Court inviting the Oireachtas to legislate to deal with the problem of compensation and the Oireachtas apparently has, so far, declined to deal with it.

I cannot help thinking that part of the reason for that obvious unwillingness to deal with this is because many of those who support the three conservative parties in our State have benefited from the extraordinarily ludicrous, loophole legislation which deals with things such as compensation and planning, etc.

Mr. Norris

Hear, hear.

Mr. B. Ryan

It has nothing to do with the Constitution and a lot to do with looking after the friends of those who have governed this country for the last 50 years. I think there are other issues to be dealt with on the Constitution. For instance, we could have a very interesting look at Article 44.2.4º. This deals with the right of different schools of different denominations. It reads as follows:

Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school.

That is a constitutional guarantee, that a parent can send a child to a school receiving public money and not have that child obliged to receive religious instruction. How can that be reconciled with the rules for primary schools, issued by the Department of Education, which state that religious formation must be all-pervasive in the school curriculum? How can a parent ensure that a child does not get religious instruction if the religious instruction is all-pervasive? I would contend that the rules for primary schools, issued by the Department of Education, are fundamentally unconstitutional and I would invite somebody — it cannot be me because I have no objection to my children receiving religious instruction — who has an objection to take a constitutional case on the basis that the rules of the Department of Education are fundamentally unconstitutional.

Anybody sending children to a school that receives public money is entitled not to have those children receive a particular religious education if they so wish and, given the way that my Church is moving, I may have to change my mind about whether I want my children to receive religious instruction from the new imperialism which is taking over my Church. Nevertheless, at present I am convinced the rules for primary schools are in conflict with Article 44 of the Constitution.

On the question of the provisions for the family which are seen as and I accept they read as quite quaint, there is a provision to which Mr. Justice Walsh has made reference on more than one occasion. It is the reference that:

In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

Many people — many women in particular — find that extremely offensive but I am not so sure that is so when it is judged in the context of the second part of that subsection:

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.

Mr. Justice Walsh has said that he has been amazed that nobody has ever attempted to vindicate that right in the court. That, I would suggest, is a right can of worms, if some brave woman decides that she wants to ensure that the State does actually endeavour to ensure that no woman has to work outside the home. My only objection is that it should read "no parent". I object to the fact that it only refers to women. I would invite some woman who is in straitened circumstances to attempt to enforce that constitutional right to have the State endeavour that she shall not be forced to work outside the home. I can tell you we would find our conservative parties rushing to the ballot boxes to have a referendum to have that straightened out. The idea that women should have a guaranteed right to an income for minding children would appal most of those, particularly those who are most given to the rhetoric of the family.

It is well to remember that Article 28.3.3 enables the State to declare a state of emergency. If this was simply an enabling clause I would not mind but the truth is that the State has been continuously under a state of emergency since 1939. If 1987 is the 50th anniversary of the enactment of the Constitution, then 1989 will be the 50th anniversary of the enactment of the emergency which suspends, effectively, many of our constitutional rights. One of the great decisions of our Supreme Court, arising out of the Constitution, has been the insistence by the Supreme Court against every wish of the Executive that the Supreme Court has a right to assess how the State implements emergency legislation. This resulted, of course, in the resignation of President Ó Dálaigh but it was a brave and important decision that the Supreme Court concluded, on his reference, that the State had no absolute right to declare an emergency and that there were certain inalienable rights that people had even under a state of emergency.

Among those was the right to have access to a solicitor when in custody, something that people who are arrested by our nearest neighbour do not have if they are arrested under emergency legislation. You can be detained for up to 48 or 72 hours — I am not sure which — in the United Kingdom and nobody need be told where you are and you have no right of access to a solicitor. You have an absolute, unqualified right, thanks to our Supreme Court, irrespective of what emergency legislation is passed, of access to a solicitor as a matter of constitutional right in this country. It was a very welcome decision by the Supreme Court.

Article 3 is so ambiguously worded that you have to read it about four times to figure out what it means. I do not think it is quite as clear-cut as people say because it says:

...without prejudice to the right of the Parliament and Government... to exercise jurisdiction over the whole of that territory...

If Parliament has the right to exercise jurisdiction over the whole of that territory and if it proposes to exercise it, then Parliament will be elected by the whole of that territory. It is important to remember that there is nothing in this Constitution which says that Dáil Éireann must be elected only from the Twenty-six Counties. With all its faults, if Parliament had the legal jurisdiction over the Six Counties of Northern Ireland then the Parliament would be elected from the entirety, so it is not an imperialist claim by a Parliament from the Twenty-six Counties to rule, as a colonial power the remaining six counties of this island.

It is important — it was important when we had a referendum on divorce which was defeated here — to say that it is not a good idea to pacify a majority by sacrificing the rights of a minority. I do not believe it is a good policy in principle. That is why, while I have no great desire to lay claim to territory simply for the sense of feeling that we have done a great job, I do not support the deletion of Articles 2 and 3 or indeed their substantial amendment.

I was going to talk about the role of the Seanad but I have run out of time. May I be slightly sceptical, if not cynical, and say one of the reasons I would not be enthusiastic about any fundamental rewriting of our Constitution is that I would not trust the major political parties which dominate Irish life, given their current inherent conservatism, to do half as good a job at protecting my rights as the author of the Constitution we now have did 50 years ago. Faults and weaknesses and all, I feel safe under our Constitution. I am not sure I would feel half as safe under a Constitution that was a product of the New Right-wing consensus.

Mr. Lydon

Fifty years ago last month the present Constitution of Ireland came into operation. Its anniversary could be described as a rather unhappy celebration. There were no parties or commemorative stamps. Perhaps there was a little too much complaining about the Constitution's unsuitability for our present age and future ages. Indeed, last summer we saw a considerable amount of discussion as to the Constitution's relevance. There was much criticism and demand for reform.

Since the failure of the so-called constitutional crusade of the former leader of Fine Gael the new party, the Progressive Democrats, have taken the lead in demanding a radical overhaul of the Constitution. After months of work they produced a document entitled Constitution for the New Republic. In this document they propose a wide range of reforms and changes. These deal with issues such as the claim of jurisdiction over the Thirty-two Counties, the Irish language, the role of the President, the abolition of this House, the number of Dáil Deputies, the abolition of capital punishment and reform of the court system. Some of these proposals are laudable.

However, I would like to draw attention to some other proposed changes which I would reject and which are very fundamental parts of the Progressive Democrats' document. They affect matters which form a very important part of the present Constitution. Their document proposes to remove all reference to God from the Constitution. At present, the Preamble to the Constitution acknowledges the Holy Trinity as the source of all authority. The Preamble which is just as much a part of the Constitution as any other line states, and I quote:

In the name of the most Holy Trinity, from whom is all authority and to whom, as our final end, all actions both of men and States must be referred.

We, the people of Éire,

Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial,

Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation,

And seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations,

Do hereby adopt, enact, and give to ourselves this Constitution.

Article 6 specifically states that all powers of Government derive, under God from the people. The Progressive Democrats will have these statements removed. No longer would judges be able to resort to terms like "the Christian nature of the State" in interpreting rights under the Constitution, but rather they would have to acknowledge the secular nature of the new State.

Our Constitution is a natural law Constitution. It acknowledges that there are rights antecedent to positive law and therefore not limited or restricted by legislation of the Oireachtas in any given time. Such natural rights include rights of the family based on marriage, private property and other individual rights. Despite the Progressive Democrats' claim that, and I quote, "much of the corpus of rights and institutions that was established in 1937 have become accepted and respected and will survive in any constitutional review", the document succeeds in knocking the natural law of the 1937 Constitution and leaving a positive law cadaver in its place. That is an acknowledgement of the natural law tradition and the Christian ethos of the people——

Mr. Norris

Including the Jewish people.

Mr. Lydon

——including the Jewish people if you wish. The Progressive Democrats document would lead in time to a new body of jurisprudence reflecting the wholly secular world view. They feel that the ethos of the present Constitution has a view of Irish nationhood which is very predominantly Catholic and Gaelic. What they want is a Constitution based on liberal Republican philosophy and terms like pluralism and separation of Church and State fit easily in with such a philosophy. I am not opposed to pluralism——

Mr. Norris

In Ireland?

Mr. Lydon

No, I am not opposed to it here either and I certainly support the separation of Church and State. However, and I put it to this House, pluralism is not itself evident good. All we can say about a pluralist society is that it is permissive in the sense that its fundamental motive for law creation is to permit rather than promote and thus it proceeds in a negative way. Pluralism has to be subordinated to the more general principle if it is to bring good. That more general principle is the good of the entire society of the State, the common good.

The Progressive Democrats request that the State be neutral in its attitude to religion. However, by so doing the State would be identifying itself with secularism and acknowledging, wrongly, that religion has nothing to do with the common good. The unbounded pluralism espoused by the Progressive Democrats and others would contribute to the loss of the sense of God and to the increasing depersonalisation that we witness today in many western European societies. Some of the proposals in the Progressive Democrats document would lead to a similar loss in Irish society.

Their document proposes that we abandon the constitutional prohibition on divorce, as indeed many other Senators speaking here have also done, leaving it in the hands of the Dáil to decide on proper divorce legislation. This is a good example of misplaced pluralism, catering for a very small minority in Irish society. The introduction of divorce would also discriminate against a large portion of the population. Once divorce is introduced the machinery of the State becomes actively involved in facilitating people who wish to abandon their pledge of lasting fidelity. Time and time again such a move in other constituencies has led to the idea of a provisional marriage contract taking hold in the State and thus all marriages become undermined.

There is also a grudging acceptance in their document of the need to include a right to life for the unborn. However, in refusing to adopt the wording of the 1983 pro-life amendment, the draft Constitution makes the protection for the unborn less explicit. Implicit also in the Progressive Democrat draft is the fact that the unborn cannot be regarded as persons. They say "The State shall respect and as far as possible by its laws defend and vindicate the right to life of all persons and of the unborn". It was exactly such an interpretation of the US Constitution that led to the introduction of abortion there in 1973. Notwithstanding the likely good intentions of those who drafted this section the possibility of legalised abortion is not absolutely excluded by the wording chosen.

Again, I see false pluralism is at work in the redefinition of the family included in their document. The family based on marriage is replaced by the simple term "the family" thus opening up the definition of other possible groupings claiming to be a family. Re-definition of the family clearly undermines the position of the marriage-based family by depriving it of its privileged recognition and its claim to preferential treatment which is its due.

Ireland is primarily a Christian society guided by Christian principles and such principles need the support of law. As one Church of England Archbishop put it: "You cannot by Act of Parliament make man morally good but you can by Act of Parliament supply the conditions which facilitate the growth of moral goodness and remove conditions which obstruct it". A secularist Constitution, such as the one being proposed, has little support to offer anyone striving to live by Christian lights. I can only hope that the people drafting this, well-intentioned as they were, might have a rethink.

I believe that the present Constitution has fulfilled its role well. I would like to quote in support of that statement from the speech by Thomas Finlay, Chief Justice, entitled The Constitution, Fifty Years on, a paper which he read on the occassion of the commemoration of the 50th anniversary of the coming into operation of the Constitution which was held in the Supreme Court on 29 December last in the presence of the President of Ireland. He says, and I quote:

The unenumerated rights are to be found

——he is defending the Constitution against a charge of inflexibility——

not by the transient needs or moods of society, but rather by a consideration of the fundamental nature of the society envisaged by the Constitution itself.

In a sense they can be said to be ejusdem generis with the rights expressly provided for in the Constitution. This conclusion arises, I think, not only from the terms in which these rights have been recognised and the principle underlined, but also in the nature of the rights which have been identified. The include the right of bodily integrity...the right to privacy in marriage; the right to work or earn a livelihood; the right to travel; and, though sometimes differently established, the right of access to the courts.

It would be difficult to construct a plausible argument which asserted that any of these rights is otherwise than entirely consistent with and of the same character and type as the rights experssly provided for and protected by the Constitution. Not only has this doctrine permitted the Constitution to adapt itself to changes in the needs and requirements of society, but it also provides, ...a comprehensive and safe method of further adaptation.

Whilst every provision of the Constitution (save the directive principles of social policy contained in Article 45) is cognisable by the Courts and a very high proportion of them have actually been considered in Constitutional cases, it was, I suppose inevitable that the main focus of judicial decisions has been on that section dealing with fundamental rights which is largely contained in Articles 40 to 44 inclusive. It is, I think, illuminating to list the rights there guaranteed and protected.

Equality before the law tempered by regard to differences of capacity;

The right to life;

The protection of the citizen or the person of the citizen;

The protection of his good name;

The protection of his property rights;

His right to liberty;

The inviolability of his dwelling;

The right to free expression of conviction and opinion;

The right to assemble peaceably and without arms;

The right to form associations and unions;

The rights of the family antecedent and superior to positive law, including the rights of parents to be the educators of their children;

The right of children to free primary education;

The general right to provide ownership of external goods;

Freedom of religion.

If you add to these rights the provisions of Article 38 guaranteeing fair procedures in criminal charges and the right in all but minor criminal offences to trial with a Jury, I think it is clear that one has as complete a set of fundamental rights and liberties as are to be found in any charter or bill of rights.

Those words of Chief Justice Finlay sum up that we have an excellent Constitution. I welcome the debate on the Constitution. It is important that we should discuss it. There is a mechanism for amending it by the will of the people. I am continually worried about the increased secularisation of society, that tends to remove God from our society or from our Constitution: this is something I would be opposed to. We may end up like the Americans, where the children no longer say a prayer before they begin their classes in the schools or we may have to do away with the Prayer in the Seanad before the House sits. These things can happen very easily. I would say to the House; leave the Constitution alone, it has served us well and will continue to do so. It can be amended at any time again by a majority of the people.

Mr. Norris

I would like to say, first of all, that I would not wish anything I say to be construed as an unconsidered attack by a so-called liberal or even an academic upon a Constitution which has served the people reasonably well and which continues to a certain extent, to be a living document. There are certain tensions within the Constitution because you deal with both its 1937-ness, the historical context within which it was framed and also its, sometimes only apparent but sometimes real capacity to grow. In dealing with this area one comes, of course, immediately to the unenumerated rights in the Constitution. I would have to join with several of my colleagues who have paid tribute to the unique contribution made by a Member of this House, Senator Mary Robinson, in having been involved since the very beginning of this process, in the attempts of various citizens, including myself to exploit this aspect of Bunreacht na hÉireann — and I think I am unique in being the only Member of this House to actually have sought the expression and implementation of my unenumerated rights in the Constitution, using Senator Robinson as my lawyer. She has played an important role in nearly every major case in which citizens of this State have sought to have their unenumerated rights specified in the Constitution.

I would like to address myself to a couple of texts of the Constitution to show how this tension between what I call the 1937-ness of the Constitution and the contemporaneity of the Constitution works. It seems to me that the function of a Constitution is first, to define the State and its nature. The 1937 Constitution clearly attempts to do that. Then, secondly, it has the duty of setting out the principles upon which government is conducted. I find difficulties with both these areas.

First of all, with regard to Articles 2 and 3 of the Constitution, it seems to me that they make untenable claims: in other words, the definition of the State in which we exist is unreal. The State does not, in fact, consist of the entire territory of the island of Ireland. Many people, including myself, have a general aspiration that this should be so but in point of fact it is not so. Therefore, the ordinary citizen of this country can perceive a tension and an unreality between what is alleged or claimed in the Constitution and what actually exists on the ground. In addition to this, there is no question or doubt whatever that the retention of these Articles is seen in the North of Ireland as a very direct, clear and explicit threat to the integrity of that separate region of the country. If you want to know what the people of the North of Ireland feel on this issue, you do not need to listen to parliamentarians from the South; you need to listen to the legitimate, if sometimes disquieting, voice of the Northern people.

At the same time I would have to agree with many of those who made the point that it would be quite wrong and inappropriate to alter the Constitution merely to set aside the whims and wishes of the residents of the north-eastern corner of this island. The Constitution is for the people of this State. If any minority of them is alienated from its provisions, then serious consideration must be given to the whole ethos of the Constitution.

I was disturbed by some of the contributions made both today and on the previous day on which this was discussed. It seems to me that in a number, but by no means in all, of the contributions — and I was particularly glad to notice that Senator Fitzsimons for example, from the Government side spoke very effectively on the need for a pluralist State — but from some Members on all sides of the House I regretted to hear what came perilously close to a demand for a Catholic Constitution for a Catholic Republic. As a citizen of this Republic who is not a Roman Catholic I deprecate that. Also, despite considering myself a Christian, I regard it as an obnoxious intrusion into the Preamble to start off with the phrase "In the name of the most Holy Trinity from Whom is all authority and from Whom as our final end, all actions of both men and States must be referred...". I know of no legal definition of "the Trinity" and if the Minister can supply me with one both I, and every theologian throughout the globe, will be extremely grateful to him. I do not wish to underestimate his intellectual capacity but I do believe that this task is beyond even the Minister.

It is also deeply offensive to many persons in this State. People can be both good citizens of the State and atheists or agnostics or Unitarians or Jewish. This absurd provision which purports to derive the efficacy of this State from an obscure theological notion is both offensive and contradictory to the principles of natural justice. I would heartily endorse its removal from the Constitution because it is not an appropriate place to refer to such a notion. I say this despite the fact that most Sundays I repeat a form of the Nicaean Creed which, in fact, itself specifically invokes the Trinity. That is my personal decision and not one that should be inflicted upon citizens by the Constitution of the country.

Other tests must be applied to this Constitution. Although I see it as a living document — this is one of its strengths — and I believe that its demonstrated capacity for growth indicates that it is alive, if not totally healthy, nevertheless I would point out that there are certain worrying instances in which the provisions of this Constitution do not, in fact, guarantee what have been shown to be internationally recognised areas of fundamental human rights. In this I would refer to two cases. First, a case already instanced by Senator Robinson, the O'B versus S case in the Supreme Court in which it was ruled that the exclusion of children born outside marriage from succession rights was not unconstitutional. Shortly afterwards, however, 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 born outside marriage. That is worrying. It is particularly worrying when it is supported again by the decision in the case I took myself in which the Supreme Court decided that legislation criminalising sexual relations between conserting male adults in private which had already been demonstrated in the European Court of Human Rights to be a violation of fundamental human rights could, at the same time, be quite happily consonant with the provisions guaranteeing personal rights and freedoms of the Irish Constitution. Those are two instances. I could give others. I merely point out to the Minister that it is deeply worrying to anybody who cherishes and I believe most Members of this House do, the whole concept of fundamental human rights to discover that our Constitution is capable of supporting what are regarded internationally as serious breaches of fundamental human rights.

There are also, of course, some ways in which the Constitution has developed which I must say I find unsatisfactory. The inclusion of a constitutional prohibition on divorce is offensive to me and to many other citizens. It is offensive specifically to the church to which I belong and this was made perfectly clear during the recent referendum on the subject. I would have to quarrel here with my good friend, Senator Lydon when he indicates that introducing divorce in this country would undermine the constitutional provisions which protect the family because it seems to me that the very basis of this argument is a lack of recognition of the importance, both politically and morally, of the concept of option. It is, I submit, impossible to develop to moral adulthood in a situation where the law offers you no option, no opportunity of making what may be from some viewpoints, even a wrong decision, where you are coerced and coralled into a situation which is merely the expression of one particular sectarian point of view, however strongly held, and held by no matter how large a proportion of the members of the community.

I am greatly disturbed by the so-called pro-life amendment. It seems to me to be a very curious comment on the values we actually have in this society because, when included in the Constitution is the phraseology that states that the State acknowledges the right to life of the unborn and with due regard to the equal right to life of the mother guarantees in its laws to respect and, as far as practical, by its laws, to defend and vindicate that right. I am seriously worried. I would also be very insulted if I was an Irish woman, a member of that curious minority, perceived as a minority but who, actually represents a mathematical majority.

It seems to me to be a reflection of a very strange and to me, indefensible attitude on the part of the celibate male power structure of a particular church and of the majority of heterosexual males in this country that they can, quite happily, equate, give equality of life, to something that is of the approximate dimensions of the head of a pin on the one hand and a living breathing, intelligent woman, a complete, full human being, on the other hand. Is this how they perceive their own wives? I respect life. I believe that abortion is almost invariably a tragedy. I make no question about that. Is believe this to be so but it is outrageous to equate these two things, to talk of the equal right to life of something virtually microscopic on the one hand, although it has the potential to become human, and a living, breathing, human being on the other.

Mr. Lydon

At what stage would you kill him?

Mr. Norris

I will tell the House this also. As a tutor in university I have no occasion — I suppose on about eight or ten occasions — dealt with this situation among my students. They have come to me because they know that I am somebody to whom they can talk. I have invariably referred them to non-directive counselling agencies. In all but one of those circumstances, after due and mature consideration and when the pressure was taken off the persons involved in this situation, they went ahead and gave birth. I believe, and it is an absolute conviction on my part, that had I been shocked, repelled, disgusted or in any way morally heavy handed, there would have been a far higher proportion of abortions among those people. That is an attitude that I think, if one is genuinely interested in the rights of our citizens, of both the born and unborn, mothers-to-be as well as the infants to be, that must recommend itself at least for consideration.

I do not wish to be seen as some kind of subversive intent on attacking and undermining the family. However, I am not at all happy with Article 41 as it is drafted. I am not at all happy with the special care the institution of marriage on which the family is funded is given in this. I am not happy with the articulation of this in domestic law. I believe that it is a blasphemous idolatry to elevate the rights of an institution, however worthy, above the rights of the individuals that constitute that institution.

When it leads to situations in which, for example, a woman can be abandoned, deserted by her husband, who is then left free to float off to another jurisdiction and receive the rights that flow from the institution of marriage in that jurisdiction, while his betrayed spouse is debarred from these rights within her own jurisdiction, having committed no fault whatever, and is also in many instances, of which the Minister is unquestionably aware, debarred from the financial pecuniary rights which normally would accrue, from the orthodox family situation, a very large question mark operates with regard to this article of the Constitution.

I would also say that the context within which this kind of article in the Constitution is interpreted cause me some difficulty, particularly phraseology such as the "Christian and democratic nature of the State." This is an unfortunate phrase. I believe that a State should be secular. In many ways this is a secular State. I remember vividly being in Court on one occasion, when a case was being tried, and the young barrister attempted a sophisticated defence along constitutional lines for a group of three Hari Chrishna people who had been singing and creating a disturbance on the street. He said they were merely exercising their constitutional rights to practice their religion. The judge offered a very memorable phrase — he may have been wrong in law but it certainly registered in my mind very vividly — when he said "you are exercising your constitutional rights to practice your religion, and what kind of defence do you think that is in an Irish court? What would happen if every citizen in this State practised their religion?" It may have been an off day for the particular judge but it is a question replete with Swiftian irony. In some ways it might be a good thing if we all practised our religion but it is offensive to have it in the Constitution in such a clear way, ways which lead to the kind of contribution we heard early this morning with references to the rights of the family as natural rights, dependent on natural law.

What is natural law? I asked earlier on for a definition of the Trinity. I would like also a definition of natural law. It is, as I understand it, a concept from theology and it is a kind of code word for the particular theological position of the Roman Catholic Church. I am all in favour of natural law if it means, not this sectarian position, but rather the recognition, not only of the family founded upon the institution of marriage but also takes into account the rights of those naturally occurring social units of a variety of complexions which, I am happy, constitute the basis of human society. To recognise only the rights of families depending upon the institution of marriage seems to me to be unnecessarily limiting and also something that should very clearly be looked at.

It is my conviction that one should look in this area in a particular way, to the way in which our decisions down here and our debate will be construed in the North of Ireland. It saddened me to hear once again references to the Constitution of this country as being Catholic and Gaelic. I do not think that it is good that the Constitution should narrow itself down in this way to represent only what may be a very large majority but which certainly excludes a reasonable proportion of people, by virtue either of their dissent or of their religious affiliation. I feel that this is something greatly to be regretted.

I would have to agree, moving onto the question of property rights, with what many of the other Senators said, that there is no serious bar to clearing up the anomalies that exist within the compensation clauses of the Planning Acts. There is no bar of a constitutional nature. I believe this is perfectly clear. I have the authority of no less than the Taoiseach for this. During the first Dublin crisis conference the organisers, including myself, communicated our concern to the Taoiseach in this matter. He replied very courteously with a detailed and extremely clear letter setting out his position. This was in fact that no constitutional change was necessary but that this situation could be satisfactorily amended by altering certain provisions of statute law. I have taken the trouble to table these provisions for discussion and debate in the Seanad. I would welcome indications from the Government of some interest, some realism in this area and of some determination to implement something that is not my suggestion at all but the suggestion of the Leader of the Government, the Taoiseach.

I feel also that certain of our attitudes towards general areas of our life are unreal as well. I speak with some degree of pain particularly in the presence of the Minister of State, who is such a fluent Irish speaker, of what I also perceive as an unreal situation with regard to Article 8 in which it is stated that the Irish language as the national language is the first official language. That is actually damaging to the Irish language. I speak as somebody who loves that language, but nevertheless it seems to me, if you state that something is the first official language and then it is perfectly clear to everybody in the country that it is not the first language, that it is not one which is widely used, a language most parliamentarians have great difficulty in using themselves, then you are calling into question the reality of that provision.

It seems that the Irish language is not beyond saying. I would very much like it to be saved. I believe the position of an individual national tongue is one of the principal marks of statehood and I wish that we could get it back. We have the example of the Jewish people in the state of Israel, and also of the Finns, who have gone back to discover their roots. I believe it could be done here, but as long as that is not the case it is a pity to include as fact what is merely a pious aspiration.

I consider the Constitution a good and valuable instrument. However for its healthy operation it requires a degree of positive co-operation between the people of the country and the text. Some of the faults and flaws which exist in the operation of the Constitution are not necessarily the primary responsibility of that document itself. Some of the responsibility lies in us, the people of Ireland. It is our responsibility to live up to the aspirations of the Constitution with many of which I agree.

I feel, as I have indicated throughout what I have said, that there is, unfortunately, some degree of sectarian bias in the Constitution and although I accept it was a product of the period the release of State papers in the last year has caused concern to many of us, not because many of the social principles articulated in the Constitution were consonant with Papal doctrines. I have no difficulty with that. Many Papal doctrines are perfectly good and every human, civilised person would be happy with them but, because, for example, the late President de Valera, the principal architect of the Constitution, sought fit to submit the text of the Constitution to Rome for approval.

That was very regrettable. It may have been understandable at the time. I may say that personally I would have had difficulty understanding it even at that time, but it certainly is the kind of evidence that would clearly seem to demonstrate to our separated brethren in the North of Ireland that the 1937 Constitution was indeed a sectarian document. My final words on the Constitution, having passed and analysed certain of its sections, would be to say that although I have some reservations about it, although I believe it contains material that is either unreal, hypocritical or offensive, it is, after all, a human document; it is the product of human minds and as such it is inevitably flawed but it has served us well.

I can even say, that having attempted to use its provisions, to secure what I regard as my own unenumerated rights, and having attempted to do so unsuccessfully, I still believe that this Constitution is a living document which it behoves us to implement to the extent of our capacities. More importantly I believe that there is no question of doubt that it is the best document that we are capable of giving to ourselves at present. I would be seriously concerned at the prospect of overturning a document which has a proven track record, and attempting to replace and supplant it with something else.

I say this particularly because it has been clear over the past four or five years that no political party in this country have either the political or moral integrity or the moral conviction to stand separate from some highly doubtful minority presure groups in this country. It is very probable that if the 1937 Constitution was removed and everything thrown once again into the melting pot and we started de novo that there is a serious threat that we would replace it with something far worse, far more contentious and something far less likely to advance the aspirations of the people.

An Leas-Chathaoirleach

I would like to remind the House that it has always been considered disrespectful to the speaker in possession for Members to move between the speaker and the Chair. I hope Members will remember that. Would the Acting Leader of the House like to indicate what time it is proposed to adjourn to?

Mr. Lydon

I propose that the House adjourn until 2 p.m.

Sitting suspended at 12.50 p.m. and resumed at 2 p.m.

Mr. Kennedy

Fifty years ago the Constitution of Ireland, Bunreacht na hÉireann, 1937, was approved by 685,105 votes to 526,945 votes at a referendum which was held on 1 July 1937 and on 29 December 1937 it came into operation.

I am glad Seanad Éireann has decided to mark the Golden Jubilee of the 1937 Constitution in a valuable and concrete way by having this debate on the 1937 Constitution — a Constitution which has been described by Tom Garvin, statutory lecturer in politics at University College, Dublin, as "a formidable political achievement that we have come to take for granted", a Constitution that has been described by Professor John Kelly, T.D. as "very largely a re-bottling of wine most of which was by 1937 quite old and of familiar vintage".

Thus, while the 1937 Constitution obviously differs from its predecessor in many respects the general characteristics of the State were substantially formed before 1937 and while all branches of our law depend for their formal validity on the 1937 Constitution, the degree of continuity between the two documents is very high. Many of the provisions of Bunreacht na hÉireann are broadly similar in terms to those of the 1922 Constitution. In many instances the language is identical and in others there occur only slight verbal changes which do not alter the substance. This holds true, for example, in respect of the provisions on the courts, Articles 34 to 36 and on Dáil Éireann, Article 16. The Preamble to the 1922 Constitution enunciates the divinely inspired sovereignty of the people as the transcendental basis of the Constitution when it states:

All lawful authority comes from God to the people.

Article 2 of the 1922 Constitution reaffirmed it as the concrete basis of the governmental organisation of a new State in that:

All powers of Government and all Authority, legislative, executive and judicial are derived from the people of Ireland.

and are to be exercisable only through the agencies established under the authority of the Constitution.

Article 6 of the 1937 Constitution, which is the constitutional basis of whatever separation of powers we have in Ireland, recalls both the Preamble to the 1922 Constitution and Article 2 of the 1922 Constitution when in Article 6.1. it states:

All powers of Government, legislative, executive and judicial, derive, under God, from the people.

Article 6.2 states:

These powers of Government are exercisable only by or on the authority of the organs of State established by the Constitution.

This corresponds to similar words used in Article 2 of the 1922 Constitution. Hugh Kennedy, the first Chief Justice of Ireland, wrote on 5 August 1922 that:

The great principle upon which Dáil Éireann was founded was that legislative, executive, administrative and judicial power had its source and was derived from the sovereign people of Ireland.

In Murphy v. the Attorney General, 1982, Judge Henchy pointed to the dominant role of the people as being:

A central feature of the ideological rationale and the political philosophy underlying the Constitution.

This emphasised in the opinion of Professor John Kelly that the role of the Legislature was in consequence one of limited delegation only. Some new material in the 1937 Constitution came from pre-existing statutes. Thus Article 16.2.5º provides that Dáil Deputies must be elected

on the system of proportional representation by means of the single transferable vote.

whereas Article 26 of the 1922 Constitution had referred simply to "principles of proportional representation".

The Electoral Act, 1923, which implemented Article 26 of the 1922 Constitution provide for the single transferable vote and its provisions on the counting of votes etc. are still in force today. Again, the 1922 Constitution did not specify the declaration to be made by judges, unlike the 1937 Constitution which sets out that declaration in Article 34.5.1º, that declaration, with minor variations in wording, is that specified in section 99 of the Courts of Justice Act, 1924. Similarly, the source of the Attorney General's authority and the warrant for the existence of his office is Article 30 of the 1937 Constitution. That office is not mentioned in the 1922 Constitution, but it certainly existed before 1937. Hugh Kennedy, who was first called the Law Officer of the Provisional Government assumed the traditional title in 1923, and he was described as Attorney General when he was piloting through the Dáil the Ministers and Secretaries Act, 1924, section 6 of which still applies to that office. The Oireachtas established under the 1937 Constitution is a bicameral Parliament, but the balance of power is tipped more firmly in favour of the Dáil.

The new Seanad, however, exhibits certain features of its predecessor. For example, it has 60 Members, it contains a nominated element and the electorate is clearly modelled on the amended provisions of the 1922 Constitution. In the course of the re-bottling operation there is no doubt that some elements of the emerging national legal system, such as the principle of judicial review of legislation on constitutional criteria, were given a new security. There is also no doubt that the very extended recitals of fundamental rights in Articles 40 to 44 of the 1937 Constitution by comparison with Articles 6 to 9 in the 1922 Constitution have yielded most important results.

Yet, as Professor Kelly has indicated, even in these two areas, judicial review and fundamental rights, it is quite possible that the State might have developed within the 1922 framework, in much the same way as it ultimately did within the 1937 Constitution. More settled political conditions would probably have led the Government to allow the transitional period within which the Constitution would be amended without referendum by ordinary legislation to expire, thus letting judicial review become a reality. Even under the rigid 1937 Constitution it is doubtful if the part which judicial review ultimately played was what its framers envisaged. It is also likely that it would have been much slower to reach that point if it had not been for the enterprise of one particular Judge, George Gavin Duffy, to whom almost all the assertive interpretation of the Constitution in the first 15 years after its enactment can be attributed. With regard to the recitals of fundamental rights, the large edifice of judge-made law which has been erected on Articles 40 to 44 and on Articles 34 and 38 might, apart from the newly entrenched rights in the field of the family and education, have arisen on the less elaborate statements contained in Articles 6 to 10 and 64 to 72 of the 1922 Constitution. Just as in the United States of America, the Supreme Court has constructed a great corpus of jurisprudence on the fairly brief statements of the early amendments. The word "constitution" of course is commonly used in at least two senses, in any ordinary discussion of legal and political affairs it could be used, first, in the wide and abstract sense and, secondly in the narrow and concrete sense. The constitution of a state in the wider sense is the whole system of government of a country, the collection of rules which establish and regulate the Government. Some of these rules are legal in the sense that the courts will recognise and apply them and some of them are non-legal in the sense that the courts do not recognise them as law but they are nonetheless effective in regulating the Government than are the rules of law strictly so called. These non-legal rules take the form of usages, understandings, customs or conventions and they are binding in the sense that they have become accepted practice. Thus the British Constitution is the collection of legal and non-legal rules which regulate the Government in Britain. The legal rules are embodied in statutes; the may also be found under the prerogative and they may be embodied in the decisions of the courts. The non-legal rules find expression in customs and conventions. In almost every country in the world except Britain, however, the word "constitution" is used in the narrower or concrete sense. It is used to describe, not the whole system of rules, legal and non-legal, but rather a selection of them which has usually been embodied in one document or in a few closely related documents. What is more, this selection is almost invariably a selection of legal rules only. Thus the "constitution" for most countries in the world is a selection of legal rules which regulate the government of that country and which have been embodied in a document.

Comparative studies indicate a series of features common to all or most written constitutions. The first common feature is that some special process will have been used to enact the constitution and this process has two effects: (a), it gives the constitution a legitimacy, not given to other forms of law and, (b), the constitution is given a primary character as law, in that it is the fundamental law of the State over and above all other forms of law. The second common feature is that written constitutions contain a power given to the courts to review ordinary laws and if necessary to pronounce them inconsistent with the constitution and therefore, null and void. The third common feature is that written constitutions are protected from mutilation. Since the constitution is the fundamental law of the State, it follows that to retain this character it must be immune from easy and unconsidered amendment, thus a special procedure is required before the constitution can be amended. If an amendment was permitted by ordinary law, the constitution would be denied its badge of specialty which it claims because of its special enactment and its fundamental character. It is important also to emphasise that although most countries have a written constitution in the form of a document, this document does not operate in isolation. The document is part of the whole system of government, of the whole collection of rules, legal and non-legal. It is supplemented in particular by legal rules enacted by the legislature, rules, which in many countries, are almost as important as the rules embodied in the constitution itself. In some countries, particularly in Ireland and the United States and in Europe, certain of these laws are described as organic laws, that is to say, laws which organise institutions which regulate the exercise of public powers through organs which the constitution has established. There appears to be a rough division of functions between the constitution which establishes institutions and lays down broad principles which are to govern them and organic laws which regulate their detailed composition and operation. In the words of Sir Kenneth Wheare:

There is in most countries an important body of legal rules enacted by the legislature which supplements and perhaps modifies or adapts the rules embodied in the constitution.

Thus Article 16 of the 1937 Constitution makes certain provisions in respect of elections to Dáil Éireann, but the whole system of elections is provided for in the Electoral Acts. Article 34 makes certain provisions for the administration of justice in courts, but a number of court Acts implement the details of these provisions. Legislatures are not the only source of legal rules. Constitutions are supplemented and modified by rules of law which emerge from the interpretation of the courts, that is called judicial review. The logical justification for judicial review of a constitution finds its most precise expression in the words of Chief Justice Marshall in Marbury v. Madison, 1803. In that case, the Supreme Court of the United States first declared an Act of Congress void and Chief Justice Marshall said:

It is emphatically the province and duty of the judicial department to say what the law is.

It some cases this duty of the courts is expressly recognised. In Article 34.3.2º, it is provided that the jurisdiction of the High Court and, on appeal, of the Supreme Court shall extend to the question of "the validity of any law having regard to the provisions of the Constitution". In some cases, the power of the courts to interpret the Constitution is inferred from the Constitution or from the nature of the judicial function. This is the position in the United States and the words of Chief Justice Marshall in Marbury v. Madison, 1803 were the first and authoritative statement of the Supreme Court's assumption of that power.

Judicial review of course, as has already been mentioned by many Senators, is a very important part of our Irish constitutional law, especially in the area of fundamental rights as set out in Articles 40 to 44 of our Constitution. The seminal judgment in this area is that of Justice Kenny in the High Court in Ryan v. Attorney General, 1965. Before the Ryan case, save for a few judicial straws in the wind, it was generally assumed that the phrase “personal rights” in Article 40.3.1º simply provided a headline to herald the slightly more specific formulation in Article 40.3.2º in respect of “life, person, good name and property rights” and indeed in the other sections, of Article 40. Justice Kenny, however, rejected the conventional wisdom for the principal reason that the Constitution sets up a “Christian and democratic” State from which it follows that the citizens of the State should enjoy all the personal rights which are appropriate in the State.

The Constitution cannot spell out all the personal rights and it is for the courts, therefore, to interpret the Constitution and say what the personal rights are. In this way, major latent personal rights have been divined by the courts. Outside the realm of legal rules, constitutions may be supplemented or modified or even nullified by usages, customs and conventions. Thus, in summary, most countries have a written constitution contained in a document or documents but it does not stand alone for it is supplemented by organic law, by judicial review and by usages, customs and conventions. The 50th anniversary of the 1937 Constitution has evoked many responses and reactions.

From time to time criticisms have been made that the 1937 Constitution is too detailed, but that does not bear close scrutiny. It is a shorter document than the Constitution of the United States, and very much shorter than the constitution of most, if not all, of the European states and other states which have written constitutions. A constitution is intended to endure for a very long time and must therefore be adaptable to various movements and changes in human affairs. Our Constitution is written in the present tense and is intended at all times to be interpreted and read as contemporary law.

The ultimate question remains, what do the words of the text mean in our time? The value of the Constitution is not based upon any static meaning it might have had 50 years ago, but in the adaptability of its fundamental principles to cope with current problems and needs. The Constitution is in large measure a blueprint for Government. One might say that where the text is not actually prescribing the from of Government it is limiting the powers of Government or imposing obligations upon it. The text does, however, point to the supremacy of the human dignity of every person, particularly in the specific provisions of the Article dealing with fundamental rights. These rights are sometimes criticised because it is alleged that they smack of an uniquely Catholic concept of fundamental rights, being based upon natural law or natural rights. This stems from a mistaken assumption that natural law or natural rights are uniquely Catholic which of course they are not. The authority of the authors of the Declaration of the Rights of Man and the Citizen in France in 1789 could scarcely have been regarded as pious Catholics. The Constitution of the United States and the European Convention on Human Rights and Fundamental Freedoms, are themselves basically natural law or natural rights documents. Like the Irish Constitution they do not set out or claim to create fundamental rights, but they recognise the pre-existence of fundamental rights which are inherent in man because he is man, and they guarantee to protect them.

It is universally recognised that the family is the fundamental unit group of society. Many critics of our Constitution seem to labour under the impression that this claim is unique to our Constitution. One example of a modern European constitution whose provisions demand protection for the family and marriage is the Constitution of the Federal Republic of Germany. Article 6 of that constitution provides that: "Marriage and family shall enjoy the special protection of the State". This was one of the foundations for a decision of the federal constitutional court of West Germany many years before the Murphy case, one which resulted in income tax laws which discriminate against married couples being struck down. More recently the same provision has underpinned the decision of the same court which struck down social welfare laws which enabled an unmarried couple to receive more assistance than a married couple.

There is also another popular but misconceived criticism of the Constitution. It is the oft repeated claim that the Constitution is excessively protective of private property interests. Except for the special provisions dealing with the taking of the property of religious denominations as distinct from religious orders and of educational institutions, there is no reference whatever in our Constitution to the payment of compensation for the taking of property. The Constitutions of the United States of America and of the Federal Republic of Germany and the French Declaration of the Rights of Man and a Citizen, unlike our Constitution, expressly provide for the payment of compensation.

Article 43.1 acknowledges:

that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.

Article 43.1.2º prohibts the State from passing any law to abolish the right of private ownership which of course is quite distinct from deciding how much property a person may be entitled to own or to retain. Article 43.2.1º and Article 43.2.2º goes on to give specific power to the State to delimit the exercise of the rights of private property in the interests of the common good, and to regulate them by the principles of social justice. The case law on our Constitution indicates quite clearly that a claim to compensation which can be sustained in the courts on the basis of a constitutional claim could be only a claim to just compensation. It does not permit of unjust enrichment nor does it, as has been pointed out by the Supreme Court, guarantee that in every case justice will require compensation.

The recent observations of Justice Niall McCarthy in the Supreme Court in JS Investments Limited, 1986, have raised the possibility that legislation authorising the use of public funds to pay what might be excessive compensation might be unconstitutional. In any review of our Constitution it must be acknowledged that the effect of the "single opinion" rule enshrined in Articles 26.2.2º and 34.4.5º of the Constitution fosters the illusion that the "single opinion" necessarily represents unanimity. In the opinion of Justice Walsh and I quote:

It can conceal fundamental differences of opinion of which the public ought to be aware, and which legislators should have available to them in their legislative deliberations.

The obligatory concealment of the existence of assenting or dissenting opinions also seriously hampers the development of constitutional jurisprudence. The "single opinion" can only be achieved by at least a bare majority of the members of the Supreme Court agreeing not only the result but also the reasons to be stated in support of that result.

The German Federal Constitutional Court after several years of being bound by a similar rule was ultimately released from it to the great benefit of German constitutional jurisprudence. While there may be political advantages to the rule it is in the opinion of many observers and participants too high a price to pay to avoid the shrill rhetoric of the disappointed litigant who endeavours to discredit a three-two result by describing it as one carried by "the slenderest of majorities". It is difficult to reconcile that the requirement of justice be administered in public with the requirement that in some cases all judicial opinions of the highest court in the land may not be revealed, particularly in an appeal from the High Court where several opinions may have been pronounced. Equally the provisions in Article 34.3.3º that any law which has been passed by the Supreme Court by virtue of Article 26 of the Constitution may never again be questioned in any court lies uneasily with the view that the Constitution is to be interpreted always as a contemporary law. There may be rare instances where a reference under Article 26 is urgently necessary, but it would be wiser to confine the prohibition on further questioning of a particular law to a limited number of years. The report of the Committee on the Constitution is of the opinion that the best solution to the problem would be an amendment to the effect that a Supreme Court decision could be challenged in further legal proceedings after a period of say, seven years.

The authorised text of Bunreacht na hÉireann, 1937, contained in that unassuming little blue booklet is not the whole constitutional story. In the words of Michael Keogh writing in The Irish Times on the 50th anniversary of the 1937 Constitution:

The Irish Constitution is not simply a document, a basic text, but it also incorporates traditions that are much older than the 1937 document, together with an impressive and continually developing Irish constitutional jurisprudence that has clothed the formal enactment of half a century ago with coherent and contemporary meaning. Our Constitution in the fullest sense is a richer, more durable, more adaptable and far reaching code of fundamental law than is apparent from the bare words of the blue booklet. As a guarantor of personal rights, it bears comparison in practice with any Constitution.

There are three main options with regard to the Constitution. First, it can be left largely as it is; secondly, a review of some or all of its provisions can be undertaken with the ultimate aim of modifying rather than abandoning the document; and, thirdly, an entirely new document can be drafted. In conclusion, I would like to emphasise that to scrap the Constitution as it now stands is to jettison all the creative, coherent and, for the most part, enlightened constitutional jurisprudence that after many years is beginning to acquire reassuring maturity. It is not simply a question of tearing up a piece of paper. Go raibh maith agat.

Mr. Mulroy

On 1 July 1937 the Irish people voted in a referendum the result of which brought into force Bunreacht na hÉireann. The passage of that referendum and its enactment were a landmark in Irish history. The 1937 Constitution established Ireland as an independent and democratic State, It gave us freedom and political stability. It gave us the framework to lay the foundation of Government, the right to play our part in international affairs and confidence to pursue our economic and social policy in the international area of world politics. It is tremendous tribute to Eamon de Valera, the founder of Fianna Fáil and the force behind the Consituation——

Mr. J. O'Toole

It is the people's Constitution.

Mr. Mulroy

——that 50 years on the Irish Constitution still stands. In acknowledging the 50th anniversary of Bunreacht na hÉireann the last few years have seen a great deal written and spoken about it. Some have praised, some have criticised, some have suggested change and some have called for it to be rewritten. Indeed, it would seem that any discussion lately involving the Constitution invariably ends up calling for some form of change. However, I sometimes feel it is all too easy to call for change, especially if society is confronted with a complex and difficult issue. Constitutional change should be a last resort and only if society has exhausted every other means of resolving the problem.

Bunreacht na hÉireann when it was enacted in 1937, reflected the values of the great majority of the people of this State and to a great extent still does. I must say that however much a Constitution at its inception mirrors the basic values of a community, changes in the community's values and the pattern of its social and political life render the original less appropriate and from time to time it will be necessary, as has happened on a number of occasions, to make changes.

Ireland's entry into the EC in 1972 brought the State into a new type of international organisation with much greater powers over member countries than those traditionally given to international institutions. Community institutions continue to make laws that either apply directly in Ireland or necessitate compliance by the Irish Government in the enactment of appropriate domestic legislation. Community law, to which Irish law including Bunreacht na hÉireann must be adopted, adds another dimension to the framework within which the Irish Government operate and will have a continuing impact upon the development of the Constitution itself.

The Constitution provides for a State that is in essence a republic. The basis of all Government authority, including the authority to enact the Constitution itself and to change it is the people. I quote from the Preamble to the Constitution: "We, the people of Éire...Do hereby adopt, enact, and give to ourselves this Constitution."

It is important to notice that the people here referred to are in principal the people of the whole island.

Article 2 makes clear that "The national territory consists of the whole island of Ireland, its islands and the territorial sea". However, in Article 3 the de facto situation is recognised, “Pending the reintegration of the national territory”. The laws of the State are declared to have effect in only the Twenty-six Counties.

The Constitution makes provision for an elected President, the symbol of republican status. Yet nowhere in the Constitution is Ireland declared to be a republic. Article 4 provides only that the name of the State is Éire or, in the English language, Ireland. The omission of the word "republic" was deliberate, reflecting the evaluation approach to the development of Ireland's constitutional status in general and Mr. de Valera's policy of external association and his hopes of acquiring the six Ulster counties in particular. To have formally declared this State a republic in 1937 would have involved a complete break with the Commonwealth and would have been seen as deliberately removing all possibility of eventually persuading the people of the Six Counties into an all-Ireland State.

One of the charges most frequently levelled against the Constitution is that it is outdated and conservative. While I agree that the Constitution of 1937 may not be perfect in its entirety, it is very relevant today. Constant judicial review of the Constitution by the High Court and Supreme Court has ensured that it reflects the social and political life of today. Its Articles embody many basic civil liberties which I feel should be mentioned. They are a tribute to the foresight of Eamon de Valera for, in essence, he saw the Constitution as the people's Constitution. It was enacted by the people of Ireland for the people of Ireland. All powers of Government, legislative, executive and judicial derive from the people. Only the people have the power to change the Constitution.

Of its 50 Articles five deal with fundamental rights of the citizens. Article 40 which deals with personal rights is very liberal. It provides that: "All citizens shall, as human persons, be held equal before the law." It also gives commitments to habeas corpus and guarantees freedom of speech, the right of free assembly and association and protection against religious, political or class discrimination. These fundamental rights allow us the freedom to change our Constitution. The charge that the Constitution is outdated is interesting when one considers that, as the people's Constitution, only the people can amend it. In all, ten changes have been made to it since its enactment.

Article 41 declares:

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.

The integrity of the family is, therefore, carefully protected by constitutional safeguards.

In Article 42 the family is recognised as the primary and natural educator of the child. Parents have the right and the duty to provide education for their children by they may, if they wish, provide it in their homes. The State steps in only in default.

Article 43 deals with the right to possess property. The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to private ownership of external goods. The State, therefore, will pass no law attempting to abolish the right of private ownership or the right to bequeath and inherit it. However, the exercise of property rights is to be regulated by the principles of social justice and the State may delimit by law the exercise of the said rights for the common good.

Recent years have seen a number of referenda on social and liberal issues put before the people. The fact that some of these issues caused a great deal of controversy and debate shows that we have a democracy where we can speak our minds openly and frankly without fear of persecution. Such debate must contribute to the vibrancy and stimulation of thinking. In essence, it is the spirit of democracy which allows people to make up their own minds on an issue and vote freely on that given issue. Whether we agree with the outcome of any referendum is not the point. What is central is that we, as a people, have an expression of will and recognise that we are bound by that expression of will. Sometimes I feel we are inclined to take that expression of freedom for granted. Too easily we forget that men and women all over the world have battled long and hard for this right and in some corners of the world that battle still continues.

In conclusion I would like to pay a special tribute to our late great President, Eamon de Valera, who gave us this Constitution which has stood the test of time in the best interests of our people.

Mr. J. O'Toole

Every Fianna Fáil speaker I have heard so far during this debate has claimed the Constitution. There is no need to defend the document; it stands on its own. It should also go on record that, as Senator Mulroy rightly said on a number of occasions throughout his contribution, it is the people's Constitution. The person who happened to be in power at the time obviously had an incredibly strong influence on it, but it is unfortunate that it should be claimed in a partisan way. I would have liked to have heard my colleagues on this side of the House also standing up to claim the Constitution and in some sense, to offer it as a tribute to some past founder, leader or Taoiseach from their side of the House.

Mr. Hogan

Senator O'Toole is a true Independent.

Mr. J. O'Toole

I am a pluralist basically.

An Leas-Chathaoirleach

Senator O'Toole, without interruption.

Mr. J. O'Toole

I enjoyed looking through the Constitution in the past week or two because I have now come to certain conclusions about it. First, I am certain that the Constitution and Christianity have run into one common problem, that is, that neither has ever been given the chance to work, neither has ever been allowed to work. Every sort of block and interference was put in front of them any time they were inclined to spread their wings.

To come back to the great founder of the Fianna Fáil Party, Eamon de Valera, in overseeing the drafting of the Constitution, the same gentleman steered a narrow middle ground — I stress "narrow middle ground"— between the Catholic Church's perception of the common good and his perception of the common good. There was not a huge difference between them but at least he tried to find that middle ground. Mind you, there was a great deal of other ground beyond that which he chose to ignore.

Since the enactment and adoption of the Constitution 50 years ago Fianna Fáil have taken a most proprietorial attitude towards it. The Fianna Fáil position has always been — it cannot be denied — that "This is our document, we will oppose all constitutional changes except those proposed by us". That has been the history. That is unfortunate. I make this reference at the start of my contribution. I intended to make it aside from what other speakers might have said; it is not just in response. It is the only party political point I am going to make and I make it because it is very germane to the problem that the Irish Constitution has run into.

That factor has contributed to the Constitution not becoming a popular people's document in the way, for instance, the American Constitution has. In American schools the Constitution is almost part of the programme. In Ireland it is seen as something which is to do with one political party. I do not see it that way. I see the document, as Bunreacht na tíre seo. It belongs to the people, the country, the nation, the State. That is the way it has to be, and we have failed to sell it. It should become very much part of the school curriculum at some point, so that people would understand what is in it. I confess that, except to dip into it to sort things out, I had not read it from cover to cover for years. I have come to the conclusion that at any time before we pass legislation we should see if we are following in the spirit of the Constitution.

Let me also say, in deference to my colleagues on the Fianna Fáil side who, from the very beginning have taken this defensive line on it, that the case for presenting and writing a brand new Constitution has not been proven. I agree that changes should be made but it would be too easy to stand up here and say we should get rid of this thing, start from scratch and write it again. I would prefer to see the true spirit of the present Constitution being implemented. That has not happened. Secondly, I am afraid I really could not trust the Right-wing parties who make up today's majority to write a document, to produce and present a better document than the one which was put together 50 years ago. Taking the broad general principle as to how it affects me, I would not trust these lads to go any further on this.

The Constitution is, and was always meant to be, the peoples' protection. It was written in that spirit. I would even concede that Mr. de Valera had that philosophy in mind when he oversaw the writing of the Constitution, but if we were to start again and write it today, half a century later, the good of the people would be well sacrificed on the altar of self-interest and sectional influence by the majority of today's Right-wing politicians. That is my view and I hope, at some stage, to be proven wrong in that.

Bunreacht na hÉireann, however, is not and never was the Constitution of a republic. The previous speaker, Senator Mulroy, made that clear. He said that at the time the term "republic" was not allowed to be used in the presentation of the Constitution. That is one of the great unfortunate things about it. Whether we are for the Constitution or against it, we must accept that it reflects a very narrow Catholic nationalist view rather than the broader republican pluralism to which we would aspire. I am not saying which is right or wrong, but it reflects a narrow Catholic nationalist view. It is very pragmatic. Mr. de Valera was very pragmatic in representing the attitudes of the majority of the people at the time but very remiss in meeting the needs of the minorities. This is one of the problems which hs been missed in the permeation of views through to the Constitution. The following quotation is very relevant to this — it hangs in my sitting room at home:

The Republic guarantees religious and civil liberty, equal rights and equal opportunities to all its citizens and declares its resolve to pursue the happiness and prosperity of the whole nation and of all its parts, cherishing all the children of the nation equally.

It is significant that in this building today, whether in this Chamber or in the other Chamber, you would find a considerable number of people who believe this paragraph, and in particular the phrase "cherish all the children of the nation equally", to be part of our Constitution. Many senior elected public representatives believe it is in the Constitution. "Oh, that it were so," is all I can say. The greatest lack in our Constitution is that the fourth paragraph of the Proclamation of the Republic, which should certainly have been included in our Constitution, never was. As late as last week I met a senior Member of this House who was prepared to bet a fiver that that statement was in the Constitution and we spent 20 happy minutes in the Library proving that it was not, and he said, "I am very disappointed in Dev". He was a member of that party over there. Had the Proclamation of the Republic been subsumed into Bunreacht na hÉireann, undoubtedly we would have become a socialist Republic. In this area the Constitution is a sharp diversion off and away from the course envisaged by the signatories to the Proclamation.

The deletion of Article 44.2. which gave a special position to the Catholic Church, makes the Constitution neither pluralist nor tolerant of difference, nor does it take in any way from the Catholic ethos which permeates many other areas of the Constitution right from the beginning. In the preamble we read: "Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial," and other similar reflections. Whereas the majority of people would have no difficulty with that, it really refers to the persecution of Roman Catholics in earlier centuries and clearly excludes members of other religions who are not persecuted.

Mr. Mooney

Presbyterians were persecuted.

Mr. J. O'Toole

I was very careful in what I said and I will read it again: excludes members of other religions who were not persecuted. Of course the Presbyterians were persecuted; I am quite aware of that and was so aware when I wrote that down. There was a religion which was doing the persecuting, many would say, at that time. It actually created a division at that point. I am not raising it as a point of argument. People would have felt cut off from it at that point. It is a message that comes through the Constitution. You would receive the message from it that to be Irish one should be Catholic and nationalist. Of course that is not the case. We have had many Presbyterian republicans, as history has shown us time and time again. That Preamble to the Constitution must have been a bitter pill for non-Catholics to swallow. It worries me to read it because it was a bad start.

Another perfect example of the Catholic Hierarchy's interference with and influence on the drafting of the Constitution is manifest in Article 42.1. It is quite interesting. The State recognises the right and duty of parents to provide "according to their means, for the religious and moral, intellectual, physical and social education of their children". That is a valid position for any State to take: the parents are the primary educators as opposed to the State. It is a philosophical point, but we took the position that it was the parents' duty so to provide.

Clause 3, however, makes it clear that the State shall require that children receive a minimum education, moral, intellectual and social. The point at issue here is, the State recognises the right to provide education and defines it to be religious, moral, intellectual, physical and social but when it comes down to what the State should provide in the area of certain minimum education some areas of education are dropped. In other words, the obligation on the State omits religious and physical education. The State obviously felt what the majority of people would feel, that the provision of religious education was a matter for the Church, or a church, or the religious authorities, and that is fair enough. The omission of physical education from the States obligation is far more interesting and far more complicated. It is not very well covered in any of the debates at the time and it has interested me for a long time.

Looking back in history 50 years later it is clear that it was the Catholic Hierarchy who opposed the State having involvement in the area of physical education. You might ask why. They saw physical education, the giving of religious education, control over physical education, as an interference with the rights and duty of the family. What we see here is the seminal stage — for want of a better word — of the opposition which was manifest and clearly seen 13 years later in the proposed mother and child scheme. That was the beginning of it, in 1937. The Catholic Hierarchy, in a letter to the then Taoiseach in 1950, 13 years later, said: "The physical education of children is an area in which the State has no competence". There it is badly written. Six months later, in April 1951, the Archbishop of Dublin, Dr. McQuaid, writing to the Taoiseach defined some areas of physical education and said: "The State providing health education is entirely and directly contrary to Catholic teaching on the rights of the family". Is it not astonishing, 30 years later, that the State providing health education is entirely and directly contrary to Catholic teaching on the rights of the family? That was why physical education was taken out of what the State should provide.

The provision of physical education in the State's 3,500 primary schools in Ireland at present would be surplus to requirements. It should be handed over to the family or the Church. This omission relates directly to the wishes and influence of the Roman Catholic Hierarchy at the time.

The education Articles in the Constitution point up another anomaly which runs straight through, and I will talk about legislation later. Whereas the State is required to ensure that children receive a certain minimum education, we have never enacted legislation to define what that minimum education should be. We are saying in the Constitution that every child should have a minimum education but we have never taken the trouble to find out what that minimum education should be. More surprising, never since the Constitution have we enacted any legislation covering the area of primary education. That is astonishing and leaves us the only country in Europe to be in such a position, as far as I know. The bedrock of education is not covered by any form of legislation. The only authority one can find for it is the Stanley letter of 1831. There was an attempt in 1942 to change and bring in a new school attendance Act. The Church had it referred to the Supreme Court and it was kicked out as being unconstitutional for the reasons I have just been through.

The great paradox in Bunreacht na hÉireann is the contrast between its spirited and almost defiant promise compared with the harsh reality of Irish citizenship 50 years on. It so relevant to explore very briefly and very quickly that paradox. Article 40 provides that all citizens shall be held equal before the law. That is a fine phrase, a marvellous objective, something to be achieved. It may well be, but the difficulty is getting as far as the law, or having access to the law, because what we should clearly understand is that the citizen with the most money has the easiest access to the law and the best lawyers. Whereas you might be held equal in the passing of judgment, in that long road to reach that point you are at the mercy of those with the most money.

Article 42 demands that children shall receive a certain minimum education and if the parents fail to provide that the State shall provide it. What does that mean in modern terms? It means in reality that the children of the poor receive a certain minimum education while the children of the rich have access to all that their parents' money can buy. I am not making any moral judgment as to whether that is right or wrong, or whether parents should or should not spend their money on buying the best quality of education for their children. I am just saying it is important to have it on the record that money gives you easier access to the law and easier access to education despite what is written in the Constitution. Anybody who has been to court or to school knows that, and anybody who has been to court and tries to run a school is certain of that.

There is much more goodwill in the Constitution. If the Minister wishes to get involved at any stage or to make a point in response to anything I said I am willing to comment on it. I do not like people to stay silent if they feel that something I said should be responded to.

An Leas-Chathaoirleach

My conversation with the Minister was regarding the matter on the Adjournment. I apologise to the speaker.

Mr. J. O'Toole

I thought he was taking me up on a point. There is much more goodwill in the Constitution. The State pledges itself in Article 45 to safeguard the economic interests of the weaker sections of the community, to support the infirm, the widow, the orphan and the aged, to protect the public from unjust exploitation from private enterprise — my colleague, Senator Ross, nearly had apoplexy when I read this out to him — as well as ensuring that the strength and health of workers and the tender age of children shall not be abused. Those are fine words but we do not see this caring attitude in the legislation or in the administration as it comes right through our lives. Article 45.1 states that the State should strive to promote a social order in which justice and charity shall inform all the institutions of the national life. Who could write a better constitution than that? Who says we need a new constitution? I say implement the one we have.

It is hardly necessary to point out that those fine words and idle promises have never really found their way into the legislation and the administration of the State. That is the real problem with the Constitution; it is not what is in it; it is the way it is being implemented. In its implementation the Constitution has failed the poor, the under-privileged and the oppressed. Much of the spirit of the Constitution, particularly in areas like the national territory, personal freedom, social policy and equality of access to education, health and the law, though very laudible, praiseworthy, supportive and still very desirable half a century later does not need to be changed. But let us recognise that these provisions are merely aspirational because we have not achieved access to education and health any more than we have achieved access to the national territories as outlined in the Constitution. The epitaph of Bunreacht na hÉireann, written every day in deprived communities, in travellers halting sites, in under-resourced State schools, in hospital waiting rooms and in over-crowded prisons must be "it promised much".

Our Constitution should enshrine the rights of citizens, without discrimination as to age, sex, religion, sexual orientation or class. It must be flexible enough to respond to a changing society as well as the evolving needs of the people. Our Constitution, given a chance, could do that. As well as being the reference point for development, it must also be the foundation on which to build responsible and necessary legislation. It must be capable of being changed, as it is, and we need to educate ourselves as to our attitude when somebody proposes a change in the Constitution. It is something that should be assessed on its value up or down. We have never had a decent debate on any proposed change in the Constitution in my time.

The Constitution must define the freedom of action and speech. In the context of the common good, and this is a difficult requirement, it must not offend the beliefs, customs and culture of minorities. I recognise that that is very narrow ground but it must define the freedom action and speech within those parameters. It must also set down, as it does, the parameters for the application of justice. A constitution, above all else, must promote unity by tolerating and accommodating differences. Ours has failed us on that.

Many would claim that the Constitution should be revised. Many more would say that it should be completely rewritten. I am not one of those who want it rewritten and I have given one of my reasons for that. I have started on my second reason and I will now finish it: who would trust the parties of the right who constitute the majority today, in collusion with the vested interests who control our society, to come up with a better script? Perhaps at the end of the day the devil we know, etc.

Mr. Hanafin

I agree with many of the points and criticisms made by the last speaker. Some of those might lie in the words of Mr. Justice Walsh in his Foreword to Dr. Forde's text on the Constitution but I will deal with that later.

First I want to say that I am pleased to speak on this motion. We should all note the fiftieth anniversary of our Constitution with a sense of pride and gratitude; pride, because the Constitution guarantees our fundamental rights so comprehensively and gratitude because it has ensured our protection against an international background which at times has been one of political extremism and disorder.

Nineteen thirty seven was a year filled with ominous foreboding in Europe. Yet against this background our Constitution stood firm in its assertion of the dignity and value of human life and in its commitment of State support for family life and personal freedoms. At a time when persecution of members of the Jewish faith was increasing in Germany and elsewhere, the Constitution gave explicit recognition to the Jewish congregation existing in Ireland. Fifty years later we have a Constitution which has stood the test of time. Its central provisions have protected our rights as individuals and as members of families. Judged by international standards the Constitution is far from being old. The American Constitution, for example, was adopted over 200 years ago and Canada's Constitution was adopted in 1867, though it was substantially modified in 1982.

The true test of a constitution's worth is whether it effectively protects individual and family rights. All the window dressing in the world is of absolutely no importance if it fails in this test. By and large our Constitution passes this test with flying colours. It ensures that the people rather than the legislator have the last say. This is true democracy and I say this as a legislator. As legislators we are representatives of the people and if we believe in true democracy, we must rejoice in the ultimate control over the legislator which the Constitution contains, especially in relation to the manner in which the Constitution may be amended.

But there is another control contained in the Constitution which we should welcome — the Constitution's insistence on the fact that fundamental human rights cannot be interfered with by the Oireachtas. For example, our basic right to life, property, free speech and free association cannot be overridden by the Oireachtas. The courts have the task of protecting our rights and by and large they have discharged this obligation successfully. Certainly they have done so with great seriousness of purpose. My concern here is that in spelling out the unspecified personal rights under Article 40 of the Constitution the courts may find that the body of jurisprudence in other countries, for example, the United States, tends on occasion to give undue weight to individualistic norms to the neglect of personal concerns and responsibilities for others and for society as a whole.

In 1937, abortion was illegal throughout the world. The idea that the law might actually legalise the killing of the unborn was then too fantastic for people to even think about. Therefore, there was no feeling that our Constitution should confer express protection on the right to life of the unborn. Any constitutional lawyer examining the Constitution in 1937 would never have criticised this omission since the point would never have occurred to him or her. Sadly, as we know, international experience, especially in the past 20 years has shown us that the unborn have lost their right to legal protection in the absence of an explicit constitutional provision spelling out that protection. The obvious example is the United States Supreme Court decision in Roe v. Wade in 1973, but a similar trend has been apparent in Europe. It is gratifying to note that at last in Britain some efforts at rethinking the position are showing signs of success.

In Ireland the pro-life amendment was designed to remove all risk to the unborn's legal position, against this ominous international legal background. It is great credit to the Irish people that they chose to include this protection in our Constitution. It shows that as a people we are perfectly able to keep our Constitution in harmony with contemporary values and to give it the strength to afford protection to the defenceless in our society.

This brings me to a consideration of the future. We have now a vibrant Constitution, sensitive to human needs and capacities. It is not, and should never be, a document frozen in time. As mentioned, one of its strengths is the straightforward manner in which it can be amended by the people.

The idea mentioned in some quarters that we should set aside the entire Constitution in favour of some entirely new Constitution seems seriously mistaken. Our Constitution has great strengths admitted by all. So far as it may be considered by some people to have weaknesses, these may be addressed and debated specifically without throwing out the whole structure. It would be a tragedy if, in order to achieve change on some specific matter, some people were to propose an entirely new Constitution in the belief that the people would never accept the specific change if presented to them as a specific issue in a referendum but that they might possibly do so if the specific issue was dealt with as part of an entirely new Constitution. Such an approach must surely be identified as less than a fully honest or fully worthy one.

As regards the protection of fundamental rights, it is worth noting that the full implications of the Constitution have yet to be drawn. Article 41, for example, which guarantees protection to the family, has not yet been fully analysed by the courts. This is not the fault of the courts but may be traced to the relative scarcity of actions brought before the courts. As I mentioned earlier, and now I wish to refer to it again, Mr. Justice Walsh recently pointed out in his foreword to Dr. Forde's text on the Constitution that, and I quote:

The Constitution was almost fifty years old before the discrimination against married women in the income tax code was brought to court to be struck down. Neither the Constitution nor the courts can be blamed for people's failure to invoke provisions of the Constitution in appropriate cases.

Earlier, when I referred to that I was replying to Senator O'Toole's well presented arguments. I want to refer to one of them. For instance, the courts have not yet been called on to spell out fully the constitutional rights of the homeless. It may well be that when the courts address this question they will find more significant protection for the homeless than is generally believe at the present.

In conclusion, may I say again, and I say it most sincerely, how honoured all of us in this House should be to note with pride the 50th anniversary of our Constitution. It is the source of protection for our basic fundamental rights and freedoms.

Mr. Hogan

It gives me great pleasure on speaking on this motion in the Seanad to note the events of the past 50 years as they affect the Irish Constitution. I was amused to hear Senator Joe O'Toole refer to the fact that he would not trust a Right-wing grouping of political parties to write a new Constitution. I do not think Senator O'Toole would regard the organisation of which he is a member of — namely the INTO — as the most liberal group of people in this country. In my opinion they have exercised most conservative views on many issues of national importance during the past few years. The manner in which their unselfishness is evoked in our community on many questions, such as teachers pay in the recent past, would lead one to believe that they are far from the liberal people who should have a representative, in the person of Senator Joe O'Toole, writing a new Constitution. Nevertheless, we regard our Constitution as a framework for laws and it is an expression of what our people perceive to be the acceptable customs and values for our society. The Constitution lays down the basic guidelines for our legislative process.

Senator Hanafin referred to many areas where the public in general may not have brought into the constitutional process, through the courts, various issues in the taxation area or in the area of the homeless where the Constitution does provide more protection than is generally believed. I am glad Senator Hanafin highlighted that position. I may not agree with him in relation to other remarks he made about various referenda but, as he has rightly pointed out, the people have decided to insert those provisions in our Constitution and that is the best test of all in relation to the viability or otherwise of a constitution of a country.

The Irish Constitution was largely inherited from the British political system, the 1922 Constitution, but with a particular Irish flavour to satisfy the majority religion of the State. We could say it was an Irish solution to an Irish problem, to quote a person in the other House. In 1937 the principal purpose of the Constitution was to establish Éire as a sovereign State, distinctively separate from Britain and immersed with such articles, like Articles 2 and 3, so as to distance ourselves as a nation from the Britishness of some of the Irish citizens in the Six Counties. I suggest, in agreement with Senator John Murphy, that de Valera at the time succeeded for his own political situation of the day to compound Partition by alienating this minority tradition in our country. Successive Governments have tried to redress this situation on many occasions since then but without success.

The 1937 Constitution is largely a product of its time and, therefore, does not in its present form reflect the changing values in the Ireland of today nor does it reflect the opening of our frontiers to the wider European dimension. Fifty years on, many people in the Republic question aspects of our Constitution which deem certain provisions and directives fitting and appropriate to their lives. A full appreciation of the real meaning and significance of a constitution requires more than just a description because when one draws up a documents to regulate the activity of a State and institutions, one sets out the parameters of what is an acceptable way to behave, identifies values which will have currency in social commerce, differentiates between the roles of the individual and the State and gives expression to our perceptions of what a civilised society should be. Thus, our Constitution is a complex entity which is at once a functional document and, in other areas, an aspirational statement.

The range of feeling about specific issues in a constitution can vary from uncertainty to active repugnance on the part of people and people can, depending on the level of shared opposition groups and individuals, canvass for change. Over the past 50 years, and in particular, since 1959, we have had debated a significant number of amendments that were proposed to the Constitution. We have had referenda so that the changes the people wished for, and which were considered more suitable to our current attitude of thinking, could be made. There is no doubt in my mind that the Irish people have become increasingly muscular in their attitudes to the ballot box as a means of expression in constitutional matters.

The manner in which changes to the Constitution are pursued must be as serious a subject of consideration as the nature of the specific changes being sought. It is notable that during the past couple of referenda in particular we have had a significant input from the major religious grouping in our country, namely, the Catholic Church. It is probably not surprising to many and, in particular not to surprising to politicians that the Government party of today seem to consider themselves very close and in tandem with the thinking of that Church on many of those questions. I suggest that this has contributed to the lack of change and the sterilility of our constitutional document as it presently exists.

As I have said, the Constitution is linked in the minds of many people with a concept, however ill-defined or vaguely grasped, of how they see themselves as a distinctive cultural grouping among the other nations and races of the world. The mere suggestion of change can appear to many people to be an attempt to undermine our identity and cast grave doubt on the authenticity of our collective way of living. That is the attitude it has been traditional thinking in the Fianna Fáil Party and that is something I regret very much. The general resistence to the idea of constitutional change is a factor of which public representatives, by virtue of their vulnerability and exposure to elector displeasure, are keenly aware of. Deputy John Kelly has frequently counselled against what he terms "tinkering about" with the Constitution and he has urged resort to other means of remedying real injustices.

A general review of the Constitution was given significant momentum some years ago by the then Taoiseach, Deputy Garret FitzGerald. Some commentators seized upon this and described it as a constitutional crusade, which it was not intended to be. That some people mistakenly interpreted the proposal as an attempt to dismantle the Constitution almost entirely illustrates two important points: first, that media treatment of matters relating to constitutional affairs plays a huge part in conditioning public opinion, and secondly, that fear of gross destabilisation underlies the general public reluctance to tamper with various individual aspects of the Constitution, which is often regarded as a unified whole. In a general way the thinking of our majority religious ethos has a major impact on social change and we have seen plenty of evidence of that in the recent past.

Notwithstanding all of this there is now a growing list of perceptible inadequacies, omissions and rigidities in the Constitution. How we choose to proceed to address those is something that we must give more careful consideration to, if we take that course in the future. The list of constitutional grievances is by no means comprehensibly definable and I am sure that other people's lists would differ in some respects from mine. Nonetheless, public debate over the past few years and the referenda which have been held in recent times, irrespective of their outcome, have served to identify some areas where broad agreement could be said to exist on those constitutional issues where legislators can legitimately focus their efforts at review. For example, as a result of the divorce referendum in 1986 many pieces of legislation are now being presented to the Oireachtas with the goodwill of all political parties and also of many of the religious groups in this country. If that referendum debate has done nothing else but highlight the inadequacies in our social legislation, particularly in the family law area, it has certainly done a tremendous amount of good work on behalf of the people who unfortunately find themselves in limbo and unsatisfactory situations in terms of their marital status.

It has been pointed out that our Constitution is close in spirit to the American Constitution and Senator Kennedy has referred extensively to this. The feature in our system whereby we can bring change in the Constitution through the means of a referendum is identical to the one in the American Constitution. This feature of the system is regarded as essential to the protection of the individual rights against erosion, whether intentionally or unintentionally, by specific legislative enactments.

But an unhealthy feature of recent political maturity has been the extent and regularity to which groups or individuals must resort to the Supreme Court to effect constitutional change. Over the past few years politicians, particularly those in Fianna Fáil I regret to say, have failed relentlessly to break out of their traditional mode and support the much needed reform in the Constitution. There is an innate reluctance on the part of the Fianna Fáil Party to take any bold initiative that would recognise the new social realities of our society. The general public have become so confused and disillusioned with recent constitutional debates and referenda that it would be inappropriate to bring about new constitutional proposals for change presently.

I would support the establishment of an all-party committee to examine our Constitution in the context of the changing developments in the family law area and the expansion of our constitutional provisions relating to Europe, for example. It is appropriate that we should do so since 1967 was the last opportunity the House of the Oireachtas had to review the document by which our legislative process is protected. I referred to the Supreme Court which relies on the Constitution for the decisions it will make. Perhaps the perception of the common good, which is what the Supreme Court at the end of the day must keep in line with, as contained in the provisions of the Constitutions, may not be the perception some members of the Supreme Court would like to be making exact decisions on. I have in mind the decision given in relation to compensation for the loss of the right to develop a piece of land. It could never have been envisaged by the architects of the Constitution that citizens of the State should have, by right, value or profit from work not undertaken or completed. The decision in this case has created a situation which makes it possible to manipulate statutory instruments for financial gain at the expense of the ordinary citizen. As a direct consequence of this we now have a further disincentive acting on local authorities who will understandably be unwilling to refuse planning permission for development projects for fear that they might become liable for huge sums of compensation, and not even for the acquisitions of lands, but purely for the preservation of these lands as public amenities.

That should have come to light at a time when our society is highly aware of and informed about the need for sound environmental planning and urban renewal illustrates how the changing needs and values of people need to be accommodated by the Constitution in its aspirational aspect and how this can be contradicted by the functions and provisions of that same document. That we are now legally bound by the contents of this decision at a time when local authorities have never been so strapped for funds should also demonstrate the need to monitor constantly the development of social attitudes in line with the expression given to these attitudes in the Constitution. Above all, however it shows that the Supreme Court, as a guardian of constitutional rights can find itself, as a consequence of a constitutional rigidity, obliged to act in opposition to a widely accepted perception of what is the common good.

The most recent decision about the amount of compensation in a particular case does nothing to alter the fundamental nature of this problem. In much the same way the Supreme Court decision with regard to individual property rights in relation to treasures found on land by metal detector or whatever means shows another constitutional rigidity and it produces a situation which must be viewed as contrary to the common good. A good example of this is the discovery of the Derrynaflan Chalice which maked a very significant accretion to the cultural heritage of the Irish people. The court's decision in this case seems to indicate that the Constitution requires us to set aside the whole concept of cultural heritage as the collectively-held artistic expression of a people and to institutionalise a totally new approach to artefacts of unique and historical value which will be discovered in the future. This prospect cannot have been foreseen when the Supreme Court was entrusted with the duty of constitutional arbiter on matters of personal rights of property.

The recent referendum on the Single European Act was precipitated by a majority decision of three to two Supreme Court judges that the Government did not, indeed does not, have full legislative discretion in the matter of formulating aspects of its foreign policy. It must be open to discussion whether, in the light of this decision, our Government can continue to go about the daily business of establishing concord with other nations in accordance with the preamble to the Constitution. A decision of the Supreme Court on the Single European Act logically casts a doubt on previous international contracts and treaties entered into by the State which were not subject to the referendum process.

It is not now clear beyond doubt that all of these decisions have full legislative binding force. We must ask ourselves if we are now in the position of having to go through such a process each and every time the State seeks to undertake a commitment involving parties outside the national jurisdiction. Can a Government feel confident in its relations with other countries if this is the case? The specific issue of the Single European Act has been resolved by the passage of the recent amendment to the Constitution but a question still remains, however, as to the position of previous international contracts and treaties other than the Treacy of Accession to the European Communities.

The Supreme Court decision in the Crotty case marked a very radical departure from what has been our understanding up to then of how foreign policy could properly be conducted. It had been our understanding that in the area of foreign policy the Government were subject only to the scrutiny of the Dáil and to the necessity to respect the constitutional rights of the individual. Thus the conduct of foreign policy was a matter for the Executive, and the courts had no role to play in it at all. Indeed a whole series of decisions by the Supreme Court have affirmed and reaffirmed that the court has no basis for interfering with the actions of the Executive arm of the State unless those actions breach or threaten to breach the constitutional rights of the individual. We have seen over the past few years in particular that the Supreme Court had been leading the challenge to and leading the attack, as it were, on the need to bring about a radical change in some of the provisions in our Constitution. We have had political cowardice and the Judiciaries rather than the politicians have led the way in relation to the review and the constitutional changes that are necessary.

Constitutional review is a necessary ongoing political activity. It should not be confined to special anniversaries like this one or to special occasions. The problems which can be discerned are varied and each one requires a specific solution. While our Constitution must produce certainty on given issues at a given point in time it must nevertheless be capable of change to match, or to permit, or to accommodate changes in our society. We should not put the activity of constitutional review into a sealed compartment to be opened only on significant anniversaries. We should rather accept that it is an activity which would normally go hand in hand with the business of legislating to give reality to the aspirations which we all share.

I must finally refer to the remarks made by Senator Robinson — whom I would regard as a lady with a tremendous knowledge of the workings of our Constitution — about the sexist nature of the document as it presently exists in that it fails to recognise various State benefits that are available to men in society and are not available to women. We need to examine our taxation and social welfare legislation, in the context of the rapid developments that are taking place in all of these areas. We should not have an entrenched position or a traditional position, and an all-party basis is, I think, the way forward in the future, in order to bring about some modification in the existing document. I am not like Senator O'Toole who would be in favour of a new constitutional document. I think the document there is adequate and has served us reasonably well over the past 50 years. There are a number of areas where a review and change can take place to make the document even more adaptable to the Ireland of today and to accommodate the aspirations of our young people, who will have to live through the workings of this document for the next 50 years.

Mr. Mooney

I welcome this opportunity also to put on record my support for the motion, a timely one in the light of attacks on this important document in recent years. It is significant that a motion of this nature should be coming before the Upper House in the 50th year of the Constitution. It is the type of motion which is ideally suited to reflective comment and debate within this Chamber. It is a tribute to the contributions that have so far been made on all sides of the House that they have been made with a sense of the importance of the Constitution as a written document in our society. Indeed, I would hope that at the conclusion of the debate many of the points which have been raised would, at some future stage, be taken on board: it is a point I will refer to a little later.

I often thought, down through the years, about why we should have a Constitution at all. Then every so often outside of this country in societies where there are not written constitutions events happen that give me some comfort. I find comfort in looking to a country without a written Constitution that is our near neighbour, namely Great Britain. I sometimes say that there, but for the grace of God go I, or go the citizens of Ireland. The concept of liberty and freedom for all, of all citizens being equal before the law, the separation of judicial and legislative functions and the right of the people to ultimately shape our society or to shape society in general, are now all but distant memories in the Thatcherite Britain of today. Who could conceive of an Irish Government riding roughshod over citizens' rights in the manner of recent United Kingdom decisions? Who could conceive of an Irish judiciary acting in tandem with the Government of the day to bring in decisions that protect the existing establishment the status quo, and in so doing——

Mr. Ross

On a point of order, has this any relevance to the debate on the Irish Constitution at all?

Mr. Mooney

——turn the law into an instrument of Government policy and not a haven for the citizen against totalitarian regimes. All of these functions are part of our Constitution. The individual rights of the citizen are protected under our Constitution because it is a written Constitution, and in this regard tribute should be paid to those members of our Judiciary, among them the late Cearbhal Ó Dálaigh who recognised the separation of powers of the Constitution and the Legislature. This created important legal precedents to the point were today a citizen can and frequently does challenge the constitutionality of legislation.

Indeed, the most celebrated and successful action in recent times was that of Mr. Raymond Crotty in exercising his rights as a private citizen. He forced this Government to exercise their obligations under the law and present a referendum before the people on the crucial issue of the Single European Act. There were many people in this country and indeed in my own party, who saw Mr. Crotty as something of a crackpot. I was not one of those people and while I was on the completely opposite side of the argument that Mr. Crotty was presenting, I applauded his initiative.

Several speakers referred to the right of access to the law. In this context there is an urgent need for reform to grant to any Irish citizen an inexpensive and fully-supported access service, Government-funded if necessary, so that any legitimate challenge to the constitutionality of a legislative measure can be argued to a conclusion. Money should not be a barrier in the pursuit of such activities.

The whole concept of a nation state comes up in debates of this nature and the Constitution should be, and I am glad to say in this country is seen as a unifying and a binding force. It gives weight and legality to the concept of the nation state. There have been some contributions in this debate and, indeed, outside of the House, on an ongoing basis to the effect that this island of Ireland there is not one State or one nation, but that there are two. Those intellectual theorists who are attempting to convince the rest of us that Ireland is not one but two nations, some of whom I am sad to say are Members of this House should look closely——

Mr. Ross

Hear, hear.

Mr. Mooney

I suggest to Senator Ross that when he has cooled down a little he should look closely at the portrait hanging near the entrance to this Chamber — that of the last Speaker of the Irish House of Commons. Admittedly it was an Irish Parliament of the period which was almost exclusively representative of one tradition, but who can now state with any certainty that the flowering of democracy which came so soon and took root so soon in the Europe of the middle and late 19th century would not have impacted on that Parliament and resulted in a full-blown Irish democratic tradition which would have encompassed and included all traditions on this island but would have done so in the context of an all-Ireland Parliament representative of all the people enacting laws for all the people by the people and of the people. It is when I look at that portrait and, indeed, at others, and the famous one of Grattan addressing the Irish House of Commons that hangs in the National Library, that I find comfort in such images of the past and it helps me to realise, whenever I find myself wishing to rise up and argue against these intellectual theorists who talk about two nations in Ireland, that there was a time, albeit a short time, when all of the people of this island were represented in a national Parliament and but for the circumstances of the Act of Union, we would perhaps, still have had that.

I wanted to make that point because it is important, particularly in the context of Articles 2 and 3, again, Articles which have proven to be contentious whenever the future of this island is discussed. I make no apologies for supporting Articles 2 and 3. I believe that if we were, at any time, ever to change Articles 2 and 3, we would be selling our birthright as a nation. But, as I said at the outset, having been gratified by the tone of the debate, I do not wish to introduce contentious matters. This is a period of reflection on a written document that has stood the test of time over 50 years.

To those who suggest and propose that we should scrap our Constitution, I say, surely such a proposal has never been made to our American brethren, whose Constitution was conceived and written 200 years ago. There are aspects of that Constitution, as indeed in our 1937 Constitution, where perhaps the language and mood and attitude of the time is reflected in the written word. One very famous aspect of the American Constitution is the effective and continuing lobbying of the National Riflemen's Association to ensure that the right to bear arms, which is included in the American Constitution, should have a different meaning today from what it had in the pioneering days of the late 18th century in America. But it is their right to interpret the Constitution in such a contemporary fashion. It is equally the right of any citizen in Ireland to interpret the Articles of the 1937 Constitution in a contemporary fashion.

Indeed, I think that the Minister of State, Deputy Máire Geoghegan-Quinn, in making her opening address to this House spoke in terms of the language of our Constitution, spoke about it being the language of the present, not of the past. I think it is important to reflect on that. There have been to date, ten amendments to the 1937 Constitution. On each and every occasion these changes have had to be put before the people.

To those who have spoken about our Constitution as representing one ethos and one particular tradition, I would say that I seem to remember that in the debates and discussions that were taking place prior to the enactment of the 1937 Constitution, the Taoiseach of the day was particularly meticulous in ensuring that he received from all sides of the religious divide in this country, submissions as to the shape and form of the Constitution and many contemporary comments that were made at that time suggest that the Taoiseach of the day and, indeed, the framers of the Constitution, went to considerable lengths to ensure that it was not to be perceived as representing one particular religious ethos. If it does reflect a Christian ethos, I think that is a fair comment. Again, I think that is something that would be totally representative of the views of all the people of Ireland.

The debates that have taken place on a number of the recent changes in our Constitution have seemed to centre around, again, this question of one ethos, of one particular religious tradition. But when one looks at the laws as they apply to Northern Ireland — the laws of Great Britain — one finds, for example, that there are certain laws which have been enacted in the United Kingdom and that do not apply in Northern Ireland. Is it being suggested, for example, that Protestants or non-Catholics in this country of the Christian tradition would wholly embrace abortion, would wholly and totally embrace divorce? They may accept it as a civil rights concept but in a religious context, do they — even today — encourage divorce within their particular traditions? These are but two of the ten changes that have been made and I think that it was an indication of the maturing of the Irish people that when it was presented to them in the late sixties and early seventies that the special position of the Catholic Church should be removed from the Constitution, the debate that took place on that issue was of such short duration and the idea was so totally accepted that the law was passed without any contentious debate. Perhaps it should never have been written into the Constitution in the first instance. But who are we — 50 years further on — to pass judgment on the people who were making and framing our laws in 1937 at a time when Senator Hanafin said earlier, when totalitarianism was the order of the day in western Europe?

Like many laymen I am not totally au fait with all aspects of the Constitution, but it was mentioned by Senator Hanafin and bears repeating again that there was a special recognition of the Jewish religion in our Constitution. When we consider that in 1937 in Nazi Germany and in other parts of Europe which had a democratic tradition anti-semitism had been rearing its ugly head — it was just given State support in Germany at that time and it was present in other democracies — it is a tribute to the framers of our Constitution that they included a special recognition of the Jewish congregation in Ireland. These are aspects of the constitutional debate in which I have a particular interest and wanted put on the record of the House. We should be grateful to the framers of our Constitution.

I know that Senator O'Toole has taken a devilish satisfaction out of taunting us in the Fianna Fáil benches whenever the name of Eamon de Valera has been mentioned in the context of the Irish Constitution. Far be it from me to be adding to the list of those saying that we in Fianna Fáil are claiming the Constitution for our own, but due recognition should be given to de Valera and the Government of the day and to the Legislature of that time in that the matter came before the one House of Parliament as it was then, and in that they should debate it fully. Ultimately, the proposals contained in the 1937 Constitution were put before the people. The people accepted the provisions of the Constitution. The people have changed their minds on aspects of the Constitution ten times since 1937 when the opportunity has been presented to them. My hope for the future is that whenever change is required — and change is always necessary — that change will, as happened in 1937, be debated fully within this Legislature and that ultimately the people will decide, yea or nay, whether such changes should be made because ultimately the Constitution is of the people, for the people and by the people.

Mr. Ross

I am very glad that I was in the Chamber to hear Senator Mooney's speech. I regret that he has taken the opportunity of a debate on the Constitution to indulge once again in some Brit-bashing of a less than subtle nature. His remarks about recent judicial decisions in Britain have, as far as I can see, no relevance to this debate. I should remind Senator Mooney that on the last occasion when the Taoiseach was meeting Mrs. Thatcher he decided to go on one of his freelance efforts about republicanism and had to be rapped over the knuckles over a motion here on extradition. The last time the Senator spoke on extradition here, his own Minister had to correct him in the Chamber about things he was saying. It would be more helpful if, when he was speaking on an issue about the Irish Constitution he did not take the opportunity to indulge in some rather cheap political Brit-bashing at a delicate time. That is not a relevant issue here today. It was not relevant to the Constitution and it is not relevant to what is being discussed today. Those remarks should be reserved for a different place and a different time, and I think it is unhelpful to Anglo-Irish relations that people should speak like this today.

Having said that, I want to be reasonably brief because I know there are at least two other people who want to get in on this debate. I should like to comment momentarily on a remark made by Senator Hogan during his speech when he said that he would welcome the establishment of another all-party committee on the Constitution. I am afraid that it is very typical, certainly of the two major political parties in this House, that to them this would be a highly acceptable outlet and a way out of the problems we face regarding the Constitution.

We had such a committee on the Constitution, I think in 1967, which made very strong, detailed and reasonably constructive and enlightened suggestions about what should happen the Constitution at the time. That committee was a complete waste of time and all the parties who were represented on it know it was a waste of time as do all those who pay lip service to that committee. They would all love at this stage, rather than debate it in this House — and it took a long time to debate it in this House: it took until the fifty-first year of the celebration of the Constitution, not the fiftieth to do it — if it were referred to an all-party committee so that nothing had to be done about it.

This debate, unfortunately, has taken a very predictable shape which is that the Government have defended the Constitution tooth and nail and the Opposition parties here have made rather tentative suggestions about what should be done about piecemeal changes in the Constitution which would suit their particular political point of view, changes which they did not make when they were in power recently. It is a pity that the Fianna Fáil party should still regard the Constitution, 50 years later, as Holy Writ. It should not be looked at as Holy Writ: it should be regarded and looked at critically as something which should be changing all the time, because it is hypocrisy and unrealistic to regard a long document which was written 50 years ago as still completely relevant today.

The only time that the Constitution is changed in this country is when it is forced to be changed. No Government have sat down and said they want to write a new Constitution or want to look at it in a constructive way. It is only when the courts decide on situations like the Single European Act that, in order to get Government legislation through, the Constitution is changed.

It is my belief that far from serving us well, as every Member of the Government seems to have said, one in repetition of the other, the Constitution has been an obstruction to progress in this country. It has been a straitjacket out of which we cannot get. I am tired of hearing meaningless expressions like those we have heard from the Fianna Fáil Party, that "it served us well" or that "it stood the test of time". I do not know what that means. Senator Hanafin used the expression "it stood the test of time". What that means is that it has been there for 50 year and has not been removed. It is not a compliment; it is simply a fact that it is a static and, to my mind, now a stagnant document. What we should look at — we should thank the Progressive Democrats for raising this and not insult them for it, as some speakers have done — is whether we need a Constitution at all and if we need a Constitution, do we need a new one. To my particular way of thinking, I am very doubtful about whether we need a written Constitution at all. I do not know why we should not take the Constitution as it stands and write the whole thing into legislation and at that stage leave it to the Government of the day to change the legislation. It is an extraordinary thing to hear legislators like Senator Mooney not prepared to trust other legislators.

Mr. Mooney

Just like Britain——

Mr. Ross

I do not understand the significance of that remark but I think it is time that you stopped making anti-British remarks, Senator Mooney, because they are not helpful to your Leader, as he has had to tell you on past occasions, especially at this sensitive time.

In the area which is described by some speakers as sectarian and by other speakers as Christian, the Constitution has been particularly obstructive towards progress. I do not think we should confuse Christianity and Catholicism. Several speakers, notably Senator Lydon from the other side of the House, continually referred to the Constitution as a Christian Constitution. I do not believe he meant that. What he meant was a Catholic Constitution. There should not be such confusion. He is insulting to those who are not Christians and to those who are not Catholics. It is incontrovertible that the ethos of the Catholic Church runs through the framing of this Constitution and it still is there. The removal of Article 44 of the Constitution, while it was welcome and I think — I am open to correction — the only recommendation of the 1967 committee which was implemented was a purely piecemeal removal of a clause which meant nothing in practice.

Far from removing that sectarian element, far from removing that particularly Catholic element in the Constitution, unfortunately following Deputy Garret FitzGerald's constitutional crusade, we inserted the clause in the Tenth Amendment to the Constitution which forbade abortion. Nobody who sat in this House while I have been here in the last seven or eight years has ever advocated abortion at all. Nevertheless, there were many in this House who, because it was a purely denominational clause, opposed putting that into the Constitution. It is significant that that has brought us backwards and that the Progressive Democrats' document on the new Constitution which they produced felt that the only way of avoiding these particular denominational clauses was to introduce a new one which actually left them out.

That is the only honest way of going through it. Far from being dishonest it is the only honest way of approaching these highly sectarian clauses which include the prohibition on divorce. That prohibition on divorce, quite rightly, as those who are in favour of retaining it, say, was democratically retained in a referendum last year. We have to ask ourselves whether that sort of deprivation of human rights should be included in the Constitution, whether the majority have that right to withhold certain rights from others. I do not believe they have. That is the most obvious, stark, denominational clause in the Constitution where the majority oppress the minority in this country. There is absolutely no getting away from it.

Mr. Mooney

On a point of order, is it right and proper that Senator Ross should criticise the people of Ireland in such a manner on an issue which has been decided by referendum?

An Leas-Chathaoirleach

The Senator is entitled to make his own speech.

Mr. Ross

Is that a point of order?

An Leas-Chathaoirleach

It is a question. The Senator on No. 1 on the Order Paper.

Mr. Ross

That is the subject of the debate. I have just listened to Senator Mooney and I was very doubtful about it. I am trying to get back to the original motion. I would like to say something about Articles 2 and 3 of the Constitution because they have been referred to by several Fianna Fáil members in this debate and they have been referred to in the sort of bland way that I have got used to from that side of the House. They say they wish those Articles to remain and the Constitution to remain intact while they protest their friendship to the people of Northern Ireland and their wish for unity.

I say to Senator Mooney one thing in reply to what he said on this, You cannot have it both ways. You cannot say, "This Constitution is unchangeable and is Holy Writ and should not be changed" and, at the same time, say, "We want friendship with the Unionists in Northern Ireland and a united Ireland." This Constitution, by its denominational nature and by many other sections in it, is an obstruction to a united Ireland and is a guarantee that there will be no united Ireland. There is no possibility whatsoever of those to whom the Fianna Fáil Party hypocritically protest friendship accepting the Constitution which they champion. They are riding two horses on this and they know perfectly well that this is true. The lip service is, of course, paid in both cases but it is politically convenient.

Those who have said — as Senator Hillery said earlier today, and I think Senator Norris said, but he will be able to correct me if I am wrong — that we should not remove Articles 2 and 3 to appease the Unionist population are perfectly right. There is absolutely no point in doing anything like this just to keep other people happy but we should remove Articles 2 and 3 because they are irrelevant——

Mr. Norris

Might I offer my good friend, Senator Ross, a point of information?

Mr. Ross

I would be delighted.

An Leas-Chathaoirleach

The Chair would prefer if the Senator was allowed to make his own speech without any help from either side of the House.

Mr. Ross

Could he make a point of order which is under the same sort of guise as was Senator Mooney's?

An Leas-Chathaoirleach

A point of order which is relevant, please.

Mr. Norris

It is a point of order simply to correct the impression that I might have given in the House that I was against the removal of Articles 2 and 3. In fact, although I am against the removal of these for the reason of satisfying the Northern Protedtants, I am very much in favour of removing them.

Mr. Ross

That is what I meant to say, I will read the report carefully to see which one of us was correct on that.

(Interruptions.)

Mr. Ross

I was only confused when I was listening to Senator Mooney because I did not know what we were discussing.

An Leas-Chathaoirleach

Hopefully Senator Ross will continue without any further interruptions.

(Interruptions.)

An Leas-Chathaoirleach

Will Senator Ross please address the Chair and not invite interruptions from any quarter?

Mr. Ross

I am not inviting interruptions. I hate them. I was talking about Articles 2 and 3 before Senator Norris interrupted me. Those who say that they should be replaced by an aspiration to a united Ireland are making the same mistake. First of all, Constitutions should not be about aspirations, whatever they are about. We might as well put into Article 2 of the Constitution that all the Irish people want to go to Heaven, or the Irish people would like to have ice cream for dinner, as to say they would like a united Ireland. That is not the place for an aspiration.

The Constitution to me, if it is about anything, is about human rights and the protection of basic human rights and not about anything else. It certainly is not about absurd claims to territory, with which there is not a hope in hell of being united. While I respect that aspiration I do not believe it should be in the Constitution. While I respect those who say they would like to see a united Ireland, it would be more honest of them to take Articles 2 and 3 out of the Constitution and recognise that the likelihood of a united Ireland is very, very slim. Certainly we are not talking about Senator Mooney's or my lifetime. That is something which would be realistic for the Fianna Fáil Party to acknowledge while they still can pay lip service to the objective. I want to say very little else because I have been interrupted and extremely put off by these interruptions.

(Interruptions.)

An Leas-Chathaoirleach

Order.

Mr. Ross

If the Constitution were to be rewritten, which it will not be as a result of this debate — the debate is hypothetical because it will end and we will all go away and nothing will be done about it — it should be a shorter, basic declaration of the rights of the citizen and it should not have in it the sort of irrelevant material which Senator O'Toole pointed out to me last night when he talked about the duty of the State with regard to private enterprise, the duty of the State as regards giving credit, as this is purely and simply a political and social philosophy as declared in 1937 which, of course, is not enforceable. It is something which is not enforceable by the courts.

It is quite absurd that a Constitution which should be about basic human rights has, towards the end, a philosophical statement which is unenforceable and never has been enforceable. The giving of credit, apparently, should be only in the interests of the Irish people. I have never seen anyone trying to enforce that or even quoting that as being in any way relevant. We should be realistic in examining the Constitution, in trying to update it, not when we have to, not when we are compelled to, but in a constructive way by looking at it in modern-day terms.

An Leas-Chathaoirleach

We have 20 minutes remaining and I have two Senators offering. I call Senator John Connor.

Mr. Connor

Can I take it that the debate will adjourn to another date if all speakers offering do not speak?

An Leas-Chathaoirleach

The debate consludes at 4.30 p.m. this evening. It is in order of the House.

Mr. Connor

The first things I want to say are of a general nature and I do not want them to be taken as general banalities because these things need to be said about constitutions. A constitution is the fundamental law of a country. It is the acid test for all other laws made under it. If the law does not meet that test then the law has to be deemed to be repugnant. A constitutions can also be regarded as a general framework which sets up the technical, legal and operational framework of the State. The Constitution of Ireland provides for the establishment of a parliament, a presidency and the establishment of a court system. It is adhering to the principle of the separation of powers. It can be argued that it is the duty of the legislators to fill in the framework, to fill in the skeleton which the people created when they gave themselves this Constitution in 1937.

I am one of the people who believe that this Constitution, while it has its faults, is basically sound in that at least for most of the people in this State it guarantees basic legal human rights. It has proved that test with the passage of time, now 50 years on. It has given us, by and large, a good framework by which we govern ourselves. Naturally, I recognise the denominational and green nationalist theme running through the Constitution. I recognise it is not the Constitution that Thomas Davis would have written for this country. That aside, in the sense that it guarantees a good framework by which we make the ordinary law of the land, it has proven its worth.

I am not one of the people who believe that the state of national constipation which this country has worked itself into in recent times has some kind of constitutional root. That is not so. That only arises because the law making process under the Constitution has not organised this country in such a way as to ensure that we would not have some of the present difficulties which bedevil this nation at this time.

One of the initial points I would like to make is that within the constitutional framework there is urgent need for reform. There is need for political leadership which would allow the Gorbachev type of Perestroika to be allowed to permeate into lawmaking in Ireland, We need to reform the system. That is the fundamental point. We can look at an example nearer home, in the United Kingdom with a Government led by Mrs. Thatcher. Whether we agreed with her or not we have to admit that her eight and a half years in office have brought about a revolution in the way that Britain is organised. I would argue that Irish Governments, by and large, have failed to reorganise how we run this country. There is an urgent need, within the constitutional framework, to make some of the following changes.

In relation to the Constitution of parliament, the electoral system for electing Members to both the Dáil and the Seanad is outdated. That is the general consensus throughout the country. From a Dáil point of view some form of single seat constituency, with a single transferable vote, would be preferred by the greater number of Members on all sides of the House. I also believe it would find wide acceptability among the population generally.

The system of election to this House is outdated. I believe we should reorganise completely the electoral system by which people are elected into this Upper House of Parliament. One says these things in the light of criticism of it — much of it the opportunistic, dishonest type criticism by some political practitioners in this country at present, I believe that one-third of the Members of this House should come from and be elected by the party political system. One-third of the Members of this House should come from the vocational interests within this country and should be elected solely, without political interference, by the vocational interests.

The other third of the Members of this House should come from the third level educational system not, as many people would see it, through the élitist channel of the two major universities. We should now look at the whole area of third level education. If we are to bring people from the educational interests into this House they should come from that mass caucus which now is the third level educational system. We could also have some life but non-voting Members in this House. You, a Chathaoirligh, would be a perfect candidate for this. There are statesmen who have now left public life in this country, such as Liam Cosgrave, Jack Lynch and others. I would see nothing wrong with those people coming in here, offering their views, not with the right to vote but nevertheless with the right to give their views on any legislation. All of these people have given a lifelong service to this State and to the Government of this country. From their experience alone they still have an enormous amount to offer.

Could I talk about the Constitution and local government in Ireland? The Constitution, naturally, has to refer to every aspect by which we govern ourselves in Ireland. The basic framework of local authority in Ireland goes back to an Act of 1898, long before the Constitution under which we now operate was enacted. Other than the introduction of the management system, which came into force in the 1930s, there has been no reform of this system, other than to take the authority away from local government, disseminated throughout the island and centre it here in Dublin, which has been and is basically an anti-democratic move.

We should reorganise local government-local authority in Ireland on a regional basis and formalise that. We have the health boards operating on a regional basis. We have Bord Fáilte operating on a regional basis. Two major utilities, the ESB and CIE, operate on a regional basis. The courts operate on a regional basis. The IDA, which encourages industry in the country, also operates on a regional basis. One can list many other organisations who operate along those lines, yet there is no political recognition for this regionalism which successive Governments have allowed to develop. It is my belief that the country is now too highly centralised as a single unit and its operations have become defunct with the passage of time.

Our county council system should be replaced with a new, reformed regional system, regional authorities with real authority developed to them. Likewise, from a town point of view, a great number of urban representatives now live outside their own urban boundaries by virtue of the fact that we have allowed our town centres to die and have encouraged people to live in rings around towns. My point is that with the abolition of local authorities as we know them today we should considerably expand the boundaries of urban areas and create greater town authorities. Local government should be moved away from the current emasculated county basis to a regional basis which has economic recognition and has a real existence established in law.

There has been much criticism of the courts. People often fail to point out that there is very little funding provided for the court structure by Government. That is why we have the old courthouses, wigs and gowns, the court histrionics of our lawyers and all that kind of pot pourrie which in many ways has alienated the ordinary system from the court system. We badly need, within the constitutional framework to reform the whole judicial-court system of this country.

We are still working on an organisational court system which goes back to the 1921 Courts of Justice Act. The State should ensure, as in Britain, that if somebody is convicted of a criminal matter of a minor nature, that is a person who may well be fined for something like drunken driving, parking offences, etc., not alone should that person be required to pay a fine but he or she should also be required to pay costs. The additional moneys generated could be used to improve at least the physical aspects of our court system.

I will deal now with another aspect of Irish life as I want to move on so as to allow my colleague, Senator Fennell, to come in. I refer to industrial relations in Ireland. Some of the developments in industrial relations in the last 20 years at least could never have been envisaged in the Constitution. I am talking about the system we now have where one man can put all the public transport off the roads nationally, or put out all the lights or virtually put all the fire brigades out of action, as happened recently in this city. That is not just undemocratic, it is a tyrannical situation. It could not have been envisaged by the people who framed the Constitution originally, who were very careful about framing our basic rights under the law. The State will have to reform the trade union framework within the Constitution.

The family is recognised in the Constitution and yet the State has done nothing to give help to the family in the proper legal context. We attempted to introduce divorce a couple of years ago but with the combination of the Church, Fianna Fáil, the GAA — even the IFA got involved — and many other reactionary aspects in Ireland this major attempt to reform something in the Constitution, which badly needed to be reformed, was defeated. Many of the people who campaigned so vigorously and so vehemently against it failed even at a cursory level to look at this proposal in any meaningful way.

The point must be made that the only organ in Irish society to recognise family problems has been the Church. The Church has recognised family break up by allowing for an annulment. The Church has recognised that we must prepare people properly for marriage by the medium of the Catholic Marriage Advisory Council. The Church has recognised the plight of the unmarried mother by providing help by way of the Cura organisation. The State has totally failed in this regard. We recognise marriage as being indissoluble and yet we do little to prepare people for marriage and we allow people to marry without due notice and very often at a very young and immature age. I have made these five points as areas from within which the structure of the existing State substantial reform could be carried out. Fianna Fáil have shown total inability to deal with any of these reforms, either in Government or in Opposition.

The Constitution of 1937 has guaranteed at least to the majority of Irish citizens wide personal rights and liberties. The Constitution can be yet an untapped source because whereas many decisions have been given in the area of personal rights it is quite obvious that it can be an ever flowing fountain. To make a good speech on the Constitution the speech would have to be directed against the Government and their failure to introduce Mr. Gorbachev's perestroika into Irish life which would allow this Constitution to become a living modern day vehicle.

Mrs. Fennell

I hope the Chair will bear with me. I am not going to speak for any great length. It is important that we should discuss the Constitution, that we should have debates in this place and other places. Anything said in this debate, and I have read it, seems to be falling into the traditional way of Fianna Fáil versus others and does not give out much hope for any change in the future. Fianna Fáil opt for the status quo and for the position as it was and they do not really want any change in almost hardly anything. That is regrettable. When it comes to the issue of women and the family in the Constitution we have to accept that Eamon de Valera showed himself to be an unimaginative and uncompromising conservative, whatever other claims may be made by his supporters in other instances.

When Senators were speaking in this debate there seemed to be a degree of inhibition about it. People feel that the issue of the Constitution almost exclusively belongs in the realms of the academics, historians and lawyers. People do not relate to the Constitution and I do not know why. I have always found it to be a readable publication, simple, straightforward and comprehensible. I regret that it appears to be so irrelevant to people, I often get letters from secondary school children who are doing projects and presentations on human rights and they never mention or think of the Constitution. They want to know what pamphlets or booklets they can look at. I always write back and say," get the Constitution and read it".

It is rather sad that young people are not introduced to the Constitution early enough. It should be in classrooms. Certainly my three children were all in university before they looked for their first copy of the Constitution. There is a challenge there to our educationalists to develop some imaginative subject matter or project to inform and stimulate interest in the Constitution among young people. It should be an essential part of the curriculum. It would give them a better idea in adulthood of what the Constitution is about, how it can be changed and what positive aspects there are about identifying the need for change.

I will restrict myself to the issue of women. There have been many criticisms of the Constitution in relation to women over the years, not without a certain amount of justice. Any examination of the Constitution shows what the concept of woman is. We see that by her life within the home woman gives the State a support without which the common good cannot be achieved. The Constitution which both prohibits divorce and equates the right of life of the mother with the right of life of the unborn child sets defined limits on the role of women in our society.

The definition of the role of woman is an element in our Constitutions which is repugnant to many people, most of them women. There is a similar definition for men and we have got to seriously question what effect this has had on the most unsatisfactory status of women in Ireland. The traditional doctrinaire Catholic concept of women comes through in the definition that we have of her in the Constitution. She is perceived only in one role in society, at home as wife and mother. While it may have been true in 1937 that there was no real difference between the traditional Catholic concept of women and society's attitude to women, it has not been so for many years. To perpetuate the notion of women as mother held in benevolent protectionism aspired to in the Constitution is less than meaningful and useful to women today. This concept of women is an aspiration. The protection that is extended to women in the Constitution is not reflected in our policies as any young widow or separated non-maintained wife could tell you. But it does have an influence on women's lives and status. It has overshadowed official thinking on policies regarding women at work, whether in pressing for implementation of equality legislation at EC level or developing measures to assist women in the workforce. The constitutional sentiment acts as an inhibition to an open and realistic approach to the needs of women at work. There is a paternalism in this Constitution with which many Irish women do not feel comfortable. It is time to liberate Irish women so that they will be perceived as important and contributing to society in many roles, not just as wife and mother.

Let us look at the other Article in the Constitution which affects not only women but the broader constitutuency of the family. This Article on the family, in which there has been a great deal of interest and focus in the past, has restricted the term "family" to that based on marriage. The restrictive nature of this definition causes injustice and stress. We are living in a time when there is a great deal of breakdown and change, breakdown in the family, change in marriage structures from the traditional situation. This means that many families now living conventional lives, the father, mother and children do not have the protection of the Constitution. Not only that but the Constitution actively puts them at a disadvantage as the term "family" is presently defined.

We have had the divorce referendum, as Senator Connor has said, and it was a most unsatisfactory result from the point of view of fair-minded people who believe that there should not be a minority group in this country who are disadvantaged by virtue of the constitutional prohibition on divorce, which does not allow legislation for divorce to be introduced in the Houses of the Oireachtas. The consistent failure on the part of the Oireachtas to address the problem posed by the ban on divorce legislation has resulted in the establishment of new and invidious social categories, the members of which do not enjoy an equitable legal status comparable to that of their contemporaries who have the good legal fortune to be clearly identifiable as single, married or widowed. The intention behind the drafting of our Constitution cannot have been quite so brutal as to alienate people or to create a class of non-citizens. One of the difficulties I have experienced in my role as a Minister when I was dealing with the drafting of legislation in various areas related to the family, to domicile law and to the law relating to illegitimacy, was the very restrictive aspect of the Constitution. It was like a clamp on the shoulders of the legislators, all the time bringing the legislators up against the obstacle that perhaps the draft legislation was not consistent with constitutional provisions. It tended to be such an inhibitor that the officials who are drafting the legislation tended to draw back from taking action or making decisions that were necessary. This is something that people who are outside the ambit of the Departments where legislation on social reform is necessary do not realise. This has been a very big delaying factor in the past.

The question has come up as to what do we do now? I am not hopeful about anything changing. The suggestion was made that we need another all-party committee. Anybody who has read the all-party committee report of 1968 and the proposals they made at that time would be encouraged, even though there are more polarised attitudes now than there were then. We do need another all-party committee. This is something on which there should not be a deadline. It should be fairly open-ended and, if possible, should not comprise of people who tend to have a short fuse when it comes to issues of social reform. The objective of the committee should be to try to bring forward some reasonable compromise or working consensus on which we could base change.

Senator Ross was very sceptical of this notion and believed that things could be done in the political arena without this kind of discussion. It showed, perhaps, how little he understood the absolute need to move to a situation of reasonable consensus from the intransigent positions we are in now. We need to have an all-party committee where things can be discussed openly and honestly. I would subscribe to that and hope that perhaps that is something we could plan ahead for. In many areas of the Constitution we need to affect change but particularly in the Articles related to the family.

Question put and agreed to.

An Leas-Chathaoirleach

When is it proposed to sit again?

Mr. Mooney

It is proposed to sit at 2.30 p.m. on Wednesday next.