The new coalition government in Ireland is committed to significant constitutional and institutional reform, most notably the abolition of the Seanad.
The economic crisis has certainly highlighted the need for change in the way the State is governed. The abolition of the Seanad seems to me to be a populist move that will do nothing other than impoverish our lawmaking process. Real reform needs to be much broader and more thought out.
In opposition, Labour suggested a constitutional convention to consider wholesale changes to the constitution. This idea has much to recommend it. Much of the language and many of the articles of the 1937 document are now inappropriate and should be amended or deleted.However, changing the text of the Constitution will not suffice. We also need to focus on how and whom we wish to interpret it.
One of the major ways in which the 1937 constitution marked a departure from the Westminster system of government that we inherited in 1922 was the granting of a power to the courts to strike down legislation that contravenes the constitution.
Such an approach involved granting a significant degree of power to the judiciary on the grounds that the defence of fundamental rights requires limits on the power of the majority. Since the 1960s the Supreme Court has regularly struck down laws on grounds of their unconstitutionality.
In some areas such as the rules governing the admissibility of evidence in criminal trials, the Courts have developed extensive constitutional rights. Other articles, such as Article 40.1 which guarantees equality before the law, have been rather timidly interpreted.
Although most constitutional challenges begin in the High Court, a great number are only finally resolved by a Supreme Court decision. As the Supreme Court also functions as a final court of appeal in non-constitutional matters, the amount of time it can dedicate to constitutional matters is limited.
In 2009 the Working Group on a Court of Appeal, chaired by Supreme Court Judge Susan Denham recommended the establishment of a Court of Appeal between the High and Supreme Courts in order to lessen the burden on the Supreme Court which, the group noted, deals with far more cases per year than its equivalents in the United States and UK.
The depth and sophistication of our constitutional law would undoubtedly be improved if the judges of the Supreme Court were able to commit more time to judgments on constitutional matters.
However, in reforming our constitution a far more fundamental question should be asked. Why is it that we entrust to judges and judges alone, the task of constitutional interpretation?
The constitution is, of course, a legal document so lawyers will inevitably have some role in its interpretation.
However, a constitution is not an ordinary piece of legislation. Constitutions set out the basic political morality of a state by establishing what are the basic principles that laws must satisfy to be valid. Constitutional articles often relate to principles such as “equality” “freedom of expression” or which are necessarily vague.
Interpreting such terms is not a matter of applying relatively precise legal techniques as in the case of an interpretation of a particular criminal or taxation statute.
As the famous American jurist Ronald Dworkin has shown, choosing between various possible interpretations of a constitutional text is not a purely scientific process where the right legal answer becomes clear. Rather it involves the making of philosophical and political judgments about what is the morally best interpretation of the constitution.
Lawyers must be a part of such a process. They have highly developed skills in legal interpretation and experience in ensuring that decisions are consistent and generally in line with previous rulings. Furthermore, "rule of law" values such as legality, fairness and consistency are ones that are indispensable for a just and decent constitutional order.
However, given that the task of constitutional interpretation also involves broader issues of politics, philosophy and morality, there is no reason why such a task should be assigned to lawyers alone.
In reforming our constitution, Irish policymakers should have the imagination to look beyond the example of the Common Law world and to take account of the experience of countries such as France.
The French have a Constitutional Council that rules on the compatibility of laws with the French constitution. The Council has legal members but also includes nominees from a broader range of expertise including, philosophers and political scientists.
Former holders of high political office such as ex-presidents are ex-officio members, as long as they have retired from politics.
The Council, accordingly, has a much broader range of experience and expertise to draw on in carrying out its task of interpreting the constitution.
The presence of non-lawyers has not undermined the Council’s credibility. Indeed, French politicians decided to broaden the Council’s powers to review legislation in recent amendments to the French constitution.
The idea that the elaboration and interpretation of the fundamental political morality of our state is for lawyers alone is a conceit of the legal profession.
Establishing a constitutional council for Ireland along the lines of the French Constitutional Council would enable constitutional interpretation to benefit from the attention that over-burdened Supreme Court judges cannot currently provide. As importantly, it would ensure that such interpretation is enriched by a broader range of perspectives than is currently the case.
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