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Deliberation in Constitutional Amendment: Reappraising Ireland’s Deliberative Mini-Publics

Published online by Cambridge University Press:  17 November 2020

Oran Doyle  and
Rachael Walsh
Rachael Walsh
Affiliation:
Professor, School of Law, Trinity College Dublin, Assistant Professor, School of Law, Trinity College Dublin.
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Abstract

Deliberative democracy innovations in constitutional amendment processes – Ireland’s experimentation with deliberative mini-publics on constitutional issues – Factors influencing the political take-up of recommendations – The significance of the support of the legislative majority –Deliberative mini-publics as an accountability mechanism.

Type
Articles
Information
European Constitutional Law Review , Volume 16 , Issue 3 , September 2020 , pp. 440 - 465
Copyright
© The Author(s) 2020. Published by Cambridge University Press on behalf of European Constitutional Law Review

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Footnotes

The authors were members of the Expert Advisory Group to Ireland’s Citizens’ Assembly, but this article is written in their personal capacity and does not represent the views of the Assembly nor of any of its members. An earlier draft of this paper was presented at a faculty research workshop in Trinity College Dublin on 10 April 2019, a symposium on Constitutionalism and Disagreement (University of Padua, 10 May 2019), the British and Irish chapter of ICON’s ‘Sovereignty, Populism and Constitutional Politics’ symposium (University College Cork, 30 and 31 August 2019), a seminar of the Trinity Centre for Constitutional Governance (27 November 2019), and a Constitutional Law Research Group workshop (University of Pennsylvania Carey Law School, Wednesday 4 December 2019). We are grateful to all who commented on the paper, in particular, Mitch Berman, William Ewald, Aileen Kavanagh, David Law, David O’Farrell, David Prendergast, Beth Simmons and Stephen Tierney. Hilary Hogan provided helpful research assistance.

References

1 See J. Suiter and M. Reuchamps, ‘A Constitutional Turn for Deliberative Democracy in Europe?’, in M. Reuchamps and J. Suiter (eds.), Constitutional Deliberative Democracy in Europe (ECPR Press 2019) p. 1, S. Elstub and G. Pomatto, ‘Mini-publics and Deliberative Constitutionalism’, in R. Levy et al. (eds.), The Cambridge Handbook of Deliberative Constitutionalism (Cambridge University Press 2018) p. 295.

2 Deliberative mini-publics have two core features: they reach conclusions on the basis of information and ‘careful and open discussion’ and their membership is representative of the wider population: D.M. Farrell et al., ‘Deliberative Mini-Publics: Core Design Features’ p. 5, Centre For Deliberative Democracy and Global Governance Working Paper (2019): ⟨www.governanceinstitute.edu.au/magma/media/upload/ckeditor/files/Deliberative%20Mini-Publics%20Core%20Design%20Features.pdf⟩, visited 23 October 2020.

3 See e.g. D.M. Farrell and J. Suiter, Reimagining Democracy: Lessons in Deliberative Democracy from the Irish Front Line (Cornell University Press 2019), J.S. Dryzek et al., ‘The Crisis of Democracy and the Science of Deliberation’, 363 Science (2019) p. 1144, J. Suiter, ‘Deliberation in Action: Ireland’s Abortion Referendum’, 9 Political Insight (2018) p. 30, M. Setälä, ‘Connecting Deliberative Mini-Publics to Representative Decision-making’, 56 European Journal of Political Research (2017) p. 846, S. Suteu, ‘The Populist Turn in Central and Eastern Europe: is Deliberative Democracy Part of the Solution?’, 15 EuConst (2019) p. 488, S. Suteu, ‘The Scottish Independence Referendum and the Participatory Turn in UK Constitution-Making: The Move towards a Constitutional Convention’, 6 Global Constitutionalism (2017) p. 184, S. Chambers, ‘Democracy and Constitutional Reform: Deliberative versus Populist Constitutionalism’, 45(9-10) Philosophy and Social Criticism (2019) p. 1116, S. McKay, ‘Building a Better Referendum: Linking Mini-Publics and Mass Publics in Popular Votes’, 15(1) Journal of Public Deliberation (2018) p. 1, G. de Búrca, ‘An EU Citizens’ Assembly on Refugee Law and Policy’, 21 German Law Journal (2020) p. 23, D. Courant, ‘Deliberative Democracy, Legitimacy and Institutionalisation: The Irish Citizens’ Assemblies’, IEPHI Working Paper Series (No. 72) (2018).

4 D.M. Farrell et al., ‘“Systematizing” Constitutional Deliberation: the 2016-2018 Citizens’ Assembly in Ireland’, 34 Irish Political Studies (2019) p. 113 at p. 119.

5 See e.g. S. Hix, ‘Remaking Democracy: Ireland as a Role Model’, 35 Irish Political Studies (2020) p. 1, A. Renwick et al., ‘What Kind of Brexit do Voters Want? Lessons from the Citizens’ Assembly on Brexit’, 89(4) The Political Quarterly (2018) p. 649, Y. Sintomer, ‘From Deliberative to Radical Democracy? Sortition and Politics in the Twenty First Century’, 46(3) Politics and Society (2018) p. 337, A. Michels et al., ‘Deepening and Connecting Democratic Processes. The Opportunities and Pitfalls of Mini-Publics in Renewing Democracy’, 7(11) Social Sciences (2018) p. 1, M. Jäske and M. Setälä, ‘A Functionalist Approach to Democratic Innovations’, doi: 10.1080/00344893.2019.1691639 (2019) p. 1, P. Kildea, ‘A Little More Conversation? Assessing the Capacity of Citizens to Deliberate About Constitutional Reform in Australia’, 22(2) Griffith Law Review (2013) p. 291, G. Whelan, ‘Of Demagogues and Dictators? The Redemption of Constitutional Referenda in New Zealand’, Victoria University of Wellington Legal Research Papers, Student and Alumni Paper Series 9/2018.

6 J. Parkinson, ‘The Role of Referendums in Deliberative Systems’, Representation, doi: 10.1080/00344893.2020.1718195 (2020).

7 J. Suiter and T. Reidy, ‘Does Deliberation Help Deliver Informed Electorates: Evidence from Irish Referendum Votes’, Representation, doi: 10.1080/00344893.2019.1704848 (2019).

8 J.A. Elkink et al., ‘The Death of Conservative Ireland?: The 2018 Abortion Referendum’, 65 Electoral Studies (2020) 102142. For further evidence of alignment between awareness of deliberative mini-publics and support for the recommendations of such mini-publics, see S. Boulianne, ‘Mini-publics and Public Opinion: Two Survey-Based Experiments’, 66(1) Political Studies (2018) p. 119.

9 Elkink et al., ibid., p. 10.

10 O. Doyle and R. Walsh, ‘Constitutional Amendment and Public Will Formation: Deliberative Mini-Publics as a Tool for Consensus Democracy’, International Journal of Constitutional Law, forthcoming.

11 This analysis presupposes that the legislative majority does not de facto control the amendment process, as would be the case with a parliamentary super-majority requirement – for instance – where a single political party held a super-majority. In such countries, abusive constitutionalism – the use of constitutional amendment to dismantle constitutional constraints – is a real risk. See D. Landau, ‘Abusive Constitutionalism’, 47 UCDL Rev (2013) p. 189. Conversely, it also presupposes that amendment rules or prevailing political conditions do not render the constitution effectively unamendable. On effective unamendability, see R. Albert, ‘Constructive Unamendability in Canada and the United States’, 67 Supreme Court Law Review (2d) (2014) p. 181.

12 We offer such an analysis in respect of the Citizens’ Assembly recommendations on abortion in Doyle and Walsh, supra n. 10.

13 Art. 46. For a broader discussion of constitutional change in Ireland, see O. Doyle, The Constitution of Ireland: A Contextual Analysis (Hart Publishing 2018) chs. 9 and 10. See also F. de Londras and D. Gwynn Morgan, ‘Constitutional Amendment in Ireland’, in X. Contiades (ed.), Engineering Constitutional Change: A Comparative Perspective on Europe, Canada and the USA (Routledge 2012) and G. Barrett, ‘The Use of Referendums in Ireland: An Analysis’, 23 Journal of Legislative Studies (2017) p. 71.

14 Doyle, ibid., ch. 3.

15 Brian Girvin details the interesting political backdrop to the Eighth Amendment, which was in fact supported by the principal opposition party that had drafted its wording, but was opposed by the Fine Gael government that was in power at the time of the referendum: B. Girvin, ‘Social Change and Moral Politics: the Irish Constitutional Referendum 1983’, 34 Political Studies (1986) p. 61 at p. 70-76.

16 For an overview of the Convention’s work, see D.M. Farrell et al., ‘Bringing People into the Heart of Constitutional Design’, in X. Contiades and A. Fotiadou (eds.), Participatory Constitutional Change: The People as Amenders of the Constitution (Routledge 2017) p. 120. For an overview of the Assembly, see Farrell et al., supra n. 4.

17 One of its members had previously initiated a Private Member’s Bill on the issue.

18 While the Convention’s topics all concerned constitutional reform, the Assembly also considered the challenges of an aging population, and climate change.

19 We exclude recommendations on non-constitutional issues, recommendations against constitutional amendment, and recommendations for changes related to constitutional structures that the deliberative mini-publics did not envisage requiring constitutional amendment.

20 Zappone v Revenue Commissioners [2008] 2 IR 417.

21 See C. O’Mahony, ‘Principled Expediency: How the Irish Courts can Compromise on Same-sex Marriage’, 35 DULJ (2012) p. 198.

22 The Children and Family Relationships Act 2015, enacted shortly before the referendum, introduced a number of related legislative changes. Due to technical issues with this Act, however, joint adoption by same-sex couples was ultimately legalised by the Adoption (Amendment) Act 2017.

23 [1999] 4 IR 484, [2000] 1 ILRM 426.

24 P. McGarry, ‘Ex-Minister behind blasphemy reform will vote yes in referendum’, (Irish Times, 26 October 2018) ⟨www.irishtimes.com/news/social-affairs/religion-and-beliefs/ex-minister-behind-blasphemy-reform-will-vote-yes-in-referendum-1.3675920⟩, visited 23 October 2020.

25 Ibid.

26 TD v Minister for Education [2001] 4 IR 259.

27 For analysis see e.g. G. Hogan, ‘Directive Principles, Socio-Economic Rights and the Constitution’, 36 Ir Jur (ns) 17 (2001) p .4, G. Whyte, Social Inclusion and the Legal System: Public Interest Law in Ireland, 2nd edn. (Institute of Public Administration 2015).

28 See for example the comments of Keane CJ in TD v Minister for Education [2001] 4 IR 259 at 282, and Murphy J, at 316-317.

29 See e.g. P. Blokker, ‘Constitutional Reform in Europe and Recourse to the People’, in Contiades and Fotiadou (eds.), supra n. 16, p. 31, assessing the Constitutional Convention as ‘a largely top-down, elite-driven experiment, remaining an exercise that was granted from above rather than initiated below’, but at the same time acknowledging that the Convention was a voice that could not be fully ignored: at p. 47.

30 See e.g. DT v CT [2002] 3 IR 334, [2003] 1 ILRM 321, PD v RD [2015] IEHC 174.

31 Dennehy v Minister for Social Welfare (26 July 1984) (HC).

32 L v L [1992] 2 IR 77, [1992] ILRM 115.

33 In Sinnott v Ireland [2001] 2 IR 545.

34 See Report of the Constitution Review Group (1996) at p. 333-334 and the All-Party Oireachtas Committee on the Constitution in its First Progress Report (1997) at p. 85. The Report of Second Commission on the Status of Women in 1993 had called for the deletion of the provision.

35 The citizens were asked to consider a scale of 1-5, with 1 representing ‘endeavour to support’, 3 representing ‘provide a reasonable level of support’, and 5 representing ‘shall support’. The vote was 20% in favour of 1, 4% in favour of 2, 35% in favour of 3, 12% in favour of 4, 30% in favour of 5.

36 Its report is set out at ⟨www.justice.ie/en/JELR/TaskForceReport_Impl-2nd-Rpt-Conv-Constit.pdf/Files/TaskForceReport_Impl-2nd-Rpt-Conv-Constit.pdf⟩, visited 23 October 2020. The Directive Principles of Social Policy in Art. 45 are stated to be for the cognisance of the Houses of the Oireachtas, not the courts.

37 See C. Gleeson and P. Logue, ‘Referendum on “sexist” reference to women’s place in the home postponed’ (Irish Times, 5 September 2018) ⟨www.irishtimes.com/news/politics/referendum-on-sexist-reference-to-women-s-place-in-the-home-postponed-1.3619116⟩, visited 23 October 2020.

38 Its report is set out at ⟨data.oireachtas.ie/ie/oireachtas/committee/dail/32/joint_committee_on_justice_and_equality/reports/2018/2018-12-06_report-on-pre-legislative-scrutiny-of-the-general-scheme-of-the-38th-amendment-of-the-constitution-role-of-women-bill_en.pdf⟩, visited 23 October 2020.

39 See e.g. the comments of the National Women’s Council of Ireland director Orla O’Connor, reported at ⟨www.rte.ie/news/politics/3028/0905/991714-women-in-the-place-referendum/⟩, visited 23 October 2020.

40 See the Commission’s policy statement on the issue in June 2018, ⟨www.ihrec.ie/app/uploads/2018/07/IHREC-policy-statement-on-Article-41.2-of-the-Constitution-of-Ireland-1.pdf⟩, visited 23 October 2020.

41 See the Resolution of Dáil Éireann, 9 July 2019, ⟨www.oireachtas.ie/en/debates/debate/dail/2019-07-09/15/⟩, visited 23 October 2020.

42 See ⟨www.citizensassembly.ie/en/news-publications/speeches/dr-catherine-day-opens-the-citizens-assembly-on-gender-equality.html⟩, visited 23 October 2020.

43 See ⟨static.rasset.ie/documents/news/2020/06/draft-programme-for-govt.pdf⟩, at p. 89, p. 135, visited 23 October 2020.

44 Art. 16.2.6. Parties with less electoral support have a greater chance of winning a seat in a five-seat constituency than in a three-seat constituency.

45 Statement of Minister for State Ann Phelan to Dáil Éireann, 18 December 2014, ⟨www.oireachtas.ie/en/debates/debate/dail/2014-12-18/31/⟩, visited 23 October 2020.

46 See Dáil Éireann debate, 18 July 2013, ⟨www.oireachtas.ie/en/debates/debate/dail/2013-07-18/⟩, visited 23 October 2020.

47 The leader of the Fianna Fáil party expressed support for such a change in February 2020: see ⟨www.irishexaminer.com/breakingnews/ireland/micheal-martin-in-favour-of-reducing-voting-age-to-16-979455.html⟩, visited 23 October 2020.

48 The President has a largely ceremonial role with few significant legal powers. See Doyle, supra n. 13, ch. 4.

49 See the comments of Minister for State Ann Phelan to Dáil Éireann, 14 January 2016, ⟨www.oireachtas.ie/en/debates/debate/dail/2016-01-14/⟩, visited 23 October 2020.

50 See H. McGee, ‘Ballot to decide if diaspora should be allowed vote for President’ (Irish Times, 13 June 2019) ⟨www.irishtimes.com/news/politics/ballot-to-decide-if-diaspora-should-be-allowed-to-vote-for-president-1.3923677⟩, visited 23 October 2020.

51 The 39th Amendment of the Constitution (Presidential Elections) Bill was published on 16 September 2019.

52 See supra n. 43, p. 135.

53 See Dáil Éireann debate, 18 July 2013, ⟨www.oireachtas.ie/en/debates/debate/dail/2013-07-18/⟩, visited 23 October 2020.

54 See Dáil Éireann debate, 18 July 2013, ⟨www.oireachtas.ie/en/debates/debate/dail/2013-07-18/⟩, visited 23 October 2020.

55 Statement of Minister for State Ann Phelan to Dáil Éireann, 18 December 2014, ⟨www.oireachtas.ie/en/debates/debate/dail/2014-12-18/31/⟩, visited 23 October 2020.

56 Dáil Standing Orders, Orders 6-7.

57 For a full account of the constitutional treatment of abortion, see Doyle and Walsh, supra n. 10.

58 See ⟨web.archive.org/web/20160226095035/http://www.finegael.ie/manifesto/manifesto.pdf⟩ visited 23 October 2020.

59 See e.g. F. de Londras, ‘The Citizens’ Assembly and the Disciplining of Activist Demands’ (26 November 2018) (available at ⟨blog-iacl-aidc.org/blog/2018/11/26/the-citizens-assembly-and-the-disciplining-of-activist-demands⟩, visited 23 October 2020); F. de Londras and M. Markicevic, ‘Reforming Abortion Law in Ireland: Reflections on Public Submissions to the Citizens’ Assembly’, 70 Women Studies International Forum (2018) p. 89 at p. 97; C. O’Cinneide, ‘The Citizens’ Assembly Viewed in External Perspective: Useful, but not a Deliberative Deus Ex Machina’ IACL-AIDC Blog (12 December 2018), available at ⟨blog-iacl-aidc.org/debate-the-citizens-assembly-in-ireland/2018/12/12/the-citizens-assembly-viewed-in-external-perspective-useful-but-not-a-deliberative-deus-ex-machina⟩, visited 23 October 2020.

60 See Doyle and Walsh, supra n. 10. We argue that the Citizens’ Assembly helped to generate political and public support for a particular form of liberalisation – abortion on request within the first 12 weeks – and assisted legislators in avoiding the incentives of electoral politics, resulting in formulating an amendment proposal that attracted wide support. Shelley Boulianne suggests that the length of a deliberative mini-public, its size, its framing of information and decisions, the sponsorship of the deliberative mini-public and the level of government at which recommendations are considered can influence the impact of a deliberative mini-public on public opinion: Boulianne, supra n. 8, p. 134.

61 R.E. Goodin and J.S. Dryzek, ‘Deliberative Impacts: The Macro-Political Uptake of Mini-Publics’, 2 Politics & Society (2006) p. 219 at p. 220.

62 In this respect, the Irish approach provides a good example of what Hendriks terms ‘designed coupling’ of deliberative mini-publics and ordinary political processes: see C.M. Hendriks, ‘Coupling Citizens and Elites in Deliberative Systems: the Role of Institutional Design’, 55 European Journal of Political Research (2016) p. 43.

63 We identify same-sex marriage, blasphemy, women in the home, economic, social, and cultural rights, votes for emigrants (2), and abortion as the topics on which there was pre-existing political disagreement. The money message procedure became a subject of significant controversy following the election of a minority government in 2016, but it had no public salience as an issue at the time the Convention made its recommendation. On the perceived lack of salience of some issues addressed by the Constitutional Convention, see E. Carolan, ‘Ireland’s Constitutional Convention: Behind the Hype about Citizen led Constitutional Change’ 13 ICON (2015) p. 733 at p.739.

64 See M. Minahin and M. Farrell, ‘Presidential age vote defeated by three to one margin’ (Irish Times, 23 May 2015) ⟨www.irishtimes.com/news/politics/presidential-age-vote-defeated-by-three-to-one-margin-1.2223665⟩, visited 23 October 2020.

65 Joint Committee on Justice and Equality, Report on pre-legislative scrutiny of the General Scheme of the 38th Amendment of the Constitution (Role of Women) Bill, December 2018, at p. 27, ⟨data.oireachtas.ie/ie/oireachtas/committee/dail/32/joint_committee_on_justice_and_equality/reports/2018/2018-12-06_report-on-pre-legislative-scrutiny-of-the-general-scheme-of-the-38th-amendment-of-the-constitution-role-of-women-bill_en.pdf⟩, visited 23 October 2020.

66 Minister for Justice Alan Shatter Statement to Dáil Éireann, 10 October 2013, ⟨www.oireachtas.ie/en/debates/debate/dail/2013-10-10/11/⟩, visited 23 October 2020.

67 See Doyle and Walsh, supra n. 10.

68 In 2013, the Westminster Parliament enacted same-sex marriage for England and Wales (the Marriage (Same Sex Couples) Act 2013); in 2015, the US Supreme Court introduced a constitutional right to same-sex marriage (Obergefell v Hodges, 576 U.S. 644 (2015)).

69 R. Post and R. Siegel, ‘Roe Rage: Democratic Constitutionalism and Backlash’, 42 Harvard Civil Rights-Civil Liberties Law Review (2007) p. 273.

70 A. Gutmann and D. Thompson, Democracy and Disagreement (Belknap Press 1996) p. 128-129.

71 For criticism of the use of deliberative mini-publics as a short-cut around representative processes, see C. Lafont, ‘Deliberation, Participation and Democratic Legitimacy: Should Deliberative Mini-Publics Shape Public Policy?’, 23 Journal of Political Philosophy (2015) p. 40.

72 M.E. Warren, ‘Deliberative Democracy and Authority’, 90(1) The American Political Science Review (1996) p. 46 at p. 55.

73 On this, see Doyle and Walsh, supra n. 10.

74 On this point, see E. Carolan, ‘Constitutional Change Outside the Courts: Citizen Deliberation and Constitutional Narrative(s) in Ireland’s Abortion Referendum’, 48 Federal Law Review (2020) p. 1 at p. 7, doi: 10.1177/0067205X20955111.

75 Available at ⟨https://static.rasset.ie/documents/news/2020/06/programmeforgovernment-june2020-final.pdf⟩, visited 23 October 2020. See also Farrell et al., supra n. 4, arguing that there has been systematisation, but not institutionalisation, of deliberative mini-publics in the Irish context.

76 For arguments in favour of institutionalisation, for example to avoid a cherry-picking approach by governments, see M. Setälä, ‘Connecting Deliberative Mini-Publics to Representative Decision-Making’, 56 European Journal of Political Research (2017) p. 846 at p. 853, C. Chwalisz, A New Wave of Deliberative Democracy, at ⟨carnegieendowment.org/files/10-17-19_Chwalisz_Deliberative.pdf⟩, visited 23 October 2020.

77 On effective unamendability, see Albert, supra n. 11, p. 181.

78 This does not, of course, establish that deliberative mini-publics are of no use in other countries and contexts. Our point is merely that the Irish experience does not provide support for such other uses.

79 We are grateful to Seth F. Kreimer for this point. The NBER/Maryland State Constitutions Project has found that there have been almost 150 State constitutions in the United States, amended roughly 12,000 times. See ⟨www.stateconstitutions.umd.edu/index.aspx⟩, visited 23 October 2020.

80 R. Levy, ‘Shotgun Referendums: Popular Deliberation and Constitutional Settlement in Conflict Societies’, 41 Melbourne University Law Review (2018) p. 1237 at p. 1256.

81 On this point, see also Elkink et al., supra n. 8, at p. 10, noting ‘[s]ocial conservatism had wilted in Irish politics for some time before it was fully understood or recognised by political and media elites’.