Democracy, citizenship and the marriage referendum

weddingringsRecently a video circulated on YouTube featuring an earnest young man, besuited and bearing flowers, knocking on every door in Ireland requesting permission to marry his beloved. It neatly illustrated the absurdity of holding a referendum to decide whether same-sex couples may be allowed marry: “how would you feel”, it asks “if you had to ask 4 million people permission to get married?”

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Democracy, citizenship and the marriage referendum

New focus needed in Oireachtas inquiries amendment

The groundswell of public anger following the “Anglo tapes” episode has led to calls for a fresh referendum to give the Oireachtas fuller powers to inquire into the events leading to the September 2008 bank guarantee.

Although there is undoubtedly a public appetite for prosecutions, a public inquiry may play an important role in conclusively establishing important facts concerning a political decision which apparently contributed in a decisive way to the remarkable economic and social destruction of the post-boom era. In particular, the relationship between bankers and public representatives demands thorough and systematic public scrutiny. This process of public accountability – and indeed the settling of the historical narrative – would occur only in an ad hoc way, at best, through criminal trials.

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New focus needed in Oireachtas inquiries amendment

The Cabinet's "Council of Four" and the constitutional authority of Government

Colm Keaveney’s vote against the Social Welfare Bill this week inadvertently highlighted an interesting constitutional conundrum.

Part of the Labour chair’s complaint was that responsibility for the budget had, allegedly, been delegated to the four-man “Economic Management Council”. He claimed that this new body – which has already been coined a “Government within the Government” – effectively “sprung an odious budget” on the lower house. The EMC, created by the current government, consists of the Taoiseach and Tánaiste along with Ministers Noonan and Howlin. Keaveney’s complaint was echoed today by a minister of the Government itself: Simon Coveney was reportedly unhappy that the cabinet was not more involved in preparing the budget.

What Keaveney implied was essentially that this novel body had bypassed the Government as the formal constitutional organ, the “cabinet” of fifteen – in its most important policy-making function: that of negotiating and formulating the State’s budget.

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The Cabinet's "Council of Four" and the constitutional authority of Government

Shadow constitutional convention #18: the referendum in liberal and republican thought

Eoin Daly, UCD. This essay is a part of our shadow constitutional convention series.

“Direct democracy” has a bad press. While it has obvious practical limitations in mass democracies, plebiscitary government is sometimes also derided as inherently “populist” – and indeed, potentially dangerous for individual liberties. Its detractors claim that the referendum, as an instrument of direct government, lacks the safeguards and procedures built into “representative” parliamentary democracy – which, theoretically at least, safeguard against “majority tyranny”. Parliaments, for all their flaws, are seen as superior fora to legislate on complex policy issues. Additionally, it is claimed they embody certain deliberative and procedural virtues and therefore encourage compromise, moderation and reflection – unlike the simply binary choice presented to citizen-legislators in referendums. Representative institutions are also much better than plebiscitary instruments at holding executive power to account. Therefore, for defenders of the British model of “political constitutionalism” centred on representative democracy – scholars like Richard Bellamy and Adam Tomkins – the parliamentary tradition, with its virtues of deliberation and contestation, is quintessentially “republican”. It looks to parliamentary politics, not an activist judiciary, as the source of political freedom.

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Shadow constitutional convention #18: the referendum in liberal and republican thought

Legal Analysis of the Children's Referendum: Article 42A.2.1 Value Pluralism and the Children’s Rights Amendment

Dr Eoin Daly is a lecturer in law in the Faculty of Law, University College Dublin

One of the concerns raised by the opponents of the proposed amendment is that it might make it easier for the State to override the decisions of parents thought to be foolish, ill-judged, or bad for children as determined by expert opinion. For example, obscure or peripheral ways of life, based on moral and religious commitments, might be thought to be damaging to child welfare. Eccentric pedagogies or lifestyle choices – perhaps Rousseau’s Emile ­– might be deemed objectively harmful by the best available scientific evidence. In this lens, the amendment, under the pretext of protecting child welfare, might inadvertently undermine value pluralism in society – the freedom of different communities and parents to exercise different beliefs and conceptions of good and to pursue this pedagogically, in their children’s education and upbringing. We might imagine the Amish and their early withdrawal from formal schooling, or religious parents insisting that their children not receive certain important secular instruction, or children prompted to participate in physically arduous religious rituals or pilgrimages. Beyond religion, one might think of Bertrand Russell’s obscure, scandalous, experimental pedagogy.  Surely this value pluralism in an important, if limited social goal, linked to human rights – it is legitimate to argue that diverse beliefs and ways of life should be given a broad berth by the State for the sake of pluralism, that is should not always impose what is objectively “best”   – even in the case of child welfare. Freedom of religion and belief, the exercise and manifestation of conscientious commitments or conceptions of the good life more generally, should not be stifled by dubious expertist or scientific opinion as to notions of children’s “best interests”, which might in any event be transient and contestable. A broader philosophical argument – which I do not intend to address – is that value pluralism, in protecting the exercise and integrity of different ways of life, might in fact have a necessary (and perhaps legitimate) cost to child welfare. In any event, it is surely important that those thought to be “quacks” or eccentrics by the social mainstream – perhaps those who might reject vaccines, for example – also have their human rights accounted for.

Although I believe this concern based on value pluralism in the context of the proposed amendment is ultimately misplaced, it is worth taking it at face value. It is true, I think, that the amendment does in fact alter the “threshold” for State intervention in issues concerning child safety and welfare.

Article 42 A.2.1 provides:

In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child. (emphasis added)

On the face of things, this does make it easier Continue reading “Legal Analysis of the Children's Referendum: Article 42A.2.1 Value Pluralism and the Children’s Rights Amendment”

Legal Analysis of the Children's Referendum: Article 42A.2.1 Value Pluralism and the Children’s Rights Amendment

Same-sex marriage doesn't need a referendum

Recent months have seen the movement for same-sex marriage gain astonishing political momentum. At least three cabinet ministers have recently declared in favour of equalising marriage rights, while a recent opinion poll suggested that almost three quarters of the public agree. A broad spectrum of political opinion supports reform; this week, one local authority unanimously passed a resolution supporting equal marriage rights. Joining Labour and Sinn Fein, Fianna Fail, on this issue in particular, has somewhat rebranded itself as a socially liberal party, and in a broader lens there is little sign of any serious figurehead of opposition to marriage reform. Perhaps the culture warriors are keeping their powder dry for looming battles on abortion and school control.

In this environment, one would expect that, in a functioning democracy, this groundswell of support for same-sex marriage might naturally put legislative reform in motion. Alas, the Constitution has been dubiously invoked, yet again, as an overarching fetter upon political choice. The Government claims that legalising same-sex marriage requires a constitutional amendment and therefore, a referendum – that the Oireachtas is bereft of any power to substantially reform the institution of marriage. I think that this is not only wrong and misguided as a point of constitutional interpretation – it is also symptomatic of a deeper dysfunctionality in the relationship between politics and constitutional discourse.

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Same-sex marriage doesn't need a referendum

Hollande and human rights: the legacy and ambitions of French socialism

François Hollande is the first left-winger to be elected French President since Mitterand’s second term in 1988. In a semi-presidentialist constitutional system, Hollande will wield considerable influence over domestic policy, particularly if, as expected, the forthcoming two-round parliamentary elections enable him to appoint a socialist Prime Minister and Government. While the current focus of international scrutiny is primarily on fiscal policy, here I discuss the manifesto and ideology of the Socialist Party with regard to human rights in the broad sense, as well as its past record in office in this respect. This is particularly interesting given the recent rightward drift of French politics – notwithstanding the Left’s victory – on matters such as immigration and security, as well as the cultural politics of halal meat, street prayers, and – bizarrely – foreign flags. I will outline how the emancipatory ambitions of French socialism have shifted from the economic to the social and cultural realms, over the course of an anguished and ambiguous reconciliation with liberal economics.

The prevailing perception of the PS (Parti Socialiste) is often that of a relatively “unreconstructed”, “unreformed” centre-left party, the antithesis of Blair’s New Labour. This is only partly true. While this image is borne of policies such as the 35-hour week introduced during the Jospin government of 1997-2002 – and of course, Hollande’s recent campaign promise of a 75% tax band – the broader historical reality has been a marked evolution away from traditional socialist tenets on public ownership and control of the economy.

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Hollande and human rights: the legacy and ambitions of French socialism

Is the Government's referendum "information" campaign unconstitutional?

Controversy has erupted surrounding the Government’s use of public funds for an allegedly neutral “information” campaign for the forthcoming referendum on the “Stability Treaty” (aka the Fiscal Compact).

While the Referendum Act 1998 provides for an independent referendum commission to inform voters on proposed amendments, the Government has committed an additional €2million for a separate “information” campaign. This has been spent on a website, stabilitytreaty.ie, already live, as well as a booklet due to be sent to all households next week, along with a leaflet later in the Campaign.

Sinn Fein has declared it will seek legal advice on the constitutionality of this expenditure. Indeed, while the Government has responded that the campaign is “informative” only and therefore not unconstitutional, it is somewhat odd, to say the least, that it has decided to launch a separate publicly-funded campaign outside of the independent statutory framework that already exists for informing voters.

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Is the Government's referendum "information" campaign unconstitutional?