TIME TO DITCH EU REFERENDUM REQUIREMENT

The hurriedly withdrawn proposal that the Greek people should vote on the bailout package they were offered shook the European Union brought an end to the prime ministership of George Papandreou.

The horrified reaction of EU leaders to the prospect of a Greek referendum is highly relevant to Ireland. The Taoiseach has been extremely keen that the changes being made to governance arrangements in order to save the Euro will not involve a treaty change that would require him to hold a referendum.

It is easy to understand why the Government is so reluctant to hold another EU-related poll. Since the decision of the Supreme Court in Crotty  v Taoiseach in 1987, all EU treaty changes, even those such as Nice and Amsterdam that were relatively minor, have been submitted to the people for via referendum.

Referendums are, quite simply, a horrendous way to take political decisions. Clear-cut, stand alone issues such as the death penalty or the permissibility of divorce can usefully be debated and decided by popular vote. Complex multi-faceted proposals such as a budget or the Lisbon Treaty cannot.

Getting oneself up to speed on the minutiae of budgetary policy and EU governance takes an enormous amount of time and effort. Most citizens, even those who are civically-minded simply don’t have the time or interest in doing so.

In these circumstances, debates on issues like the Lisbon Treaty are often made hostage to the hobby horses of individual groups that are focused on the impact of one out of a myriad of the issues covered by the relevant treaty.

Worse, long complex agreements are particularly susceptible to being misleadingly portrayed. In the last Lisbon campaign the elements of the both sides had to resort to gross simplifications and distortions as it would have been impossible to have a sufficiently “accessible” debate on the broad and largely technical issues dealt with by the Treaty.

There is a major danger that a referendum on EU Treaty changes to  save the Euro will be, once again, hijacked by groups focused on other issues such a neutrality or abortion.

In these circumstances the Government may well wish to test the continued validity of the Crotty decision. This judgment was the result of a 3 to 2 split in the Supreme Court in which the minority strongly argued that it was not constitutionally necessary to submit each and every new European treaty to the electorate.

The Maastricht Treaty, which established the Euro, was certainly constitutionally revolutionary and should have been submitted to the people. Depending on its contents, a treaty that adjusts and establishes various mechanisms to ensure the currency’s smooth operation may well be less so.

Bunreacht na h-Éireann deliberately establishes a parliamentary, not an popular democracy. Doubtless aware of the perils of direct rule by the people the Constitution in Article 29.4.1 gives the power to make treaties and carry out external affairs to the Government which in turn must lay all treaties before the Dáil for ratification (Article 29.5.1). 

Perhaps because of its origins in the 1930s when representative democracy was under severe pressure from demagogic extremists, the Constitution envisages a very limited role for the direct democracy.

Though a referendum is always needed for constitutional change, Article 29.4.10 provides that “No provision of this Constitution invalidates …. acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union”. 

Given that, in the absence of an opt-out, EU membership requires adoption of the Euro, it is certainly arguable that, treaty changes designed to ensure the currency’s proper functioning can be seen as “measures necessitated by obligations of membership” and are therefore covered by the Constitution as it stands.

Another European referendum would generate enormous amounts of heat and little light. It would require the public to develop an enormous level of interest and expertise in complex public policy issues even though most people lack the time, interest and ability to do so. It would make key questions of foreign and economic policy hostage to the obsessions of particular groups.

The Constitution deliberately gives almost exclusive conduct of matters of public policy to an elected legislature and the Government responsible to it. Direct government by the people is dangerous to minorities and to sensible policy making. Furthermore, though they have often let us down, we require professional politicians to run our affairs. Most of us do not have the time or expertise to acquaint ourselves with the minutiae of public policy.

The Crotty decision was wrong. Requiring a referendum for each and every EU treaty change is inconsistent with the Constitution’s commitment to parliamentary democracy and is damaging to Ireland’s interests. The Government should think seriously about testing the correctness of this decision before dragging us into the nightmare of yet another European referendum.

Learning Lessons

The news on the Eurozone is very worrying and depressing. Despite constant statements that EU governments are willing to do "whatever it takes" to save the Euro, the European Central Bank has not been told or permitted to act as a lender of last resort.

It might well be true that badly run countries like Italy and Greece would not reform if the ECB steps in and lends them money without strict conditions. However, by refusing to let bank do this under any circumstances, EU governments are risking these countries defaulting and thereby destroying the Euro.

The main reason that the ECB option is, in Angela Merkel's words, "off the table" is that Germany worries that allowing it to act in this way will cause inflation. Willem Buiter, who is the Chief Economist of CitiGroups calls the German approach "mad". "You can drown in water", he says, "but that does not mean that you shouldn't have a glass of water when you are thirsty". This chimes with Paul Krugman's view that inflation is, in the context of the weak and indebted European economy, the least of the dangers we face (and might even be helpful by lessening the burden of debt).

Germany's experience of hyper inflation in the 1920s was doubtless traumatic. The German authorities rightly drew the lesson from that experience that it is generally a bad idea for governments to print vast amounts of money. However, they are guilty of applying this lesson in a stupidly rigid and indiscriminate way.

On 9-11, many people who had been in the twin towers during the 1993 bomb attack died because they remained in the building waiting to be rescued even though they were in floors below the impact zone. In doing so, they were applying the lesson of the 1993 attacks that, in an emergency in a skyscraper, it is best to wait to be rescued. This lesson resulted from the fact that in 1993 most injuries occurred in the stairwells as people sought to escape.

These people's mistake was to stick inflexibly to a lesson that was no longer appropriate in the exceptional circumstances in which they found themselves. Similarly, while inflation is often a real danger, we are now in truly exceptional circumstances. Germany's insistence that the lessons of and solutions to, its problems in the 1920s must be the applied to our current problems is as misguided and, in economic and political terms, as dangerous. If the German authorities cannot bring themselves to recognise that their specific experience in the 1920s does not hold the solution to all financial and economic problems in all circumstances it looks like the Euro will collapse and with it the world economy.

Dáil Dress Codes, the Left and Public Life

Since the election in February a number of TD have been appearing in the Dáil chamber in casual dress. Most notable have been the group of leftwing indepdent TDs including Richard Boyd-Barrett, Mick Wallace and Ming Flanagan. The Irish Times states that:

“Mr. Boyd-Barrett often wears jeans in the Dáil chamber and shirts not tucked in, while Mr Flanagan wears his shirts buttoned up to the neck and out over his trousers. Wexford TD Mick Wallace brings a dash of colour to the chamber with his trademark pink shirts. None of the men wear formal jackets.”

Their informality has been added to that of Gerry Adams who, according to the same paper “often takes Leaders’ Questions without a jacket and with his sleeves rolled up”.

The Dáil committee dealing with procedural matters has now proposed a dress code requiring formal dress for deputies (http://www.irishtimes.com/newspaper/breaking/2011/0708/breaking36.html).

The reaction of the independent TDs has been depressingly predictable.  Independent Kildare TD Catherine Murphy stated that "Dress codes don’t necessarily mean people do things with the right motivation.” While Richard Boyd Barrett thought that to focus on this issue in the context of the economic crisis showed that the government were “clowns”.

These are, of course, straw man arguments. No one is suggesting that a dress code in the Dáil will ensure that TDs always act with correct motivations. Furthermore, the Committee of Procedure and Privileges is not tasked with dealing with the economic crisis but with proper running of the Dáil so there is no net loss of attention on economic affairs involved in its decision.

Indeed the people who are in fact most focused on what people wear in the Dáil are those who, like Mr. Boyd-Barrett, deliberately flout the dress code in order to indulge their juvenile desire to be seen as rebellious.

There are, of course, more important issues in political life today and in Sinn Féin’s case, this is hardly the first or most serious incidence of their failure to respect the institutions of the State. However, I think the approach of these standard bearers of leftwing politics shows a broader problem with the characteristics of much of left wing politics in the West since the 1960s.

What Mr. Boyd Barrett et al seem to be incapable of understanding are the reasons underlying a parliamentary dress code, namely a desire to show respect for an institution that is of immense importance to the society we all share.

In Irish and Western culture, one way of demonstrating such respect and generating the kind of solemnity that should attach to proceedings in a venue with functions as important as those of a parliament, is to wear particular kinds of clothing.

Even if they personally consider jeans to be a sign of the utmost respect, that is not the point. The point of the dress code in a national parliament is that it relates to collective notions of what is respectful.

The solemnity and respect that comes from sober business attire does not come from any inherent qualities of the fibres used but from the cultural significance attached to such clothing. That is why, there are often dress codes for events like weddings. The guests collectively indicate their respect for the importance of the occasion by wearing clothing that is agreed to be respectful. 

Similarly, Dáil deputies, by dressing formally, indicate that they realise the importance of the institution in which they serve to broader society. People watching Dáil proceedings are also encouraged to revere and take seriously the institutions of our democracy by seeing TDs dressed in a solemn and respectful manner.

Since the 1960s the message of a section the left has been that to express respect for collective institutions through adhering to collective norms is hierarchical, elitist and reactionary.

This has been seen in many countries. In Germany for example, since the 1968 student protests, traditional robes fell out of use in graduation ceremonies in many universities. Similarly, in 2009, the Speaker of the British House of Commons dispensed with the ornate cloak worn by his predecessors in order, he said to promote the 'accessibility" of Parliament.

Although those opposing such traditional practices often characterise themselves as left wing, the agenda they have endorsed is actually profoundly rightwing. A major element of rightwing politics since the 1980s has involved an attack on the idea of the public. This was underpinned by Mrs. Thatcher’s idea that “there is no such thing as society” and that accordingly as much of life as possible should be privatised and deregulated so that individual preferences acting through the market mechanism could determine outcomes rather than collective ideals.

Richard Boyd Barrett and his colleagues are adopting the same approach. Ignoring the fact that there is a collective norm around dress codes, they want to be able to wear what they want or what they personally feel is respectful. In essence, they want to privatise a collective cultural arrangement aimed at maintaining respect for our shared institutions and replace it with an arrangement where individual choice is the only relevant criterion.

Collective institutions, traditions and norms can sometimes be oppressive. The error of the 1960s counter cultural generation, like that of leftists like Richard Boyd Barrett, was to show rather indiscriminate hostility to them.

Traditional robes add to the gaiety of university ceremonies and help to shore up society’s respect for learning and knowledge. The ornate robe of the Speaker of the House of Commons helps people to link the current legislature to the long history of Britain’s parliamentary institutions. In short, in the case of many traditional collective arrangements, removing them in the name of 'accessibility' adds nothing and subtracts something.

More importantly, by refusing to wear anything but what accords with their personal views and tastes, Richard Boyd Barrett and his colleagues implicitly undermine the very idea of the public. The idea that, in certain contexts important to our shared life, we put aside our some of our individual desires to work together and to respect our common institutions, is vital to a healthy pluralist society. 

It is this idea that is undermined by the refusal of TDs to adhere to a dress code that requires deputies to wear clothing that shows respect for the institutions of our democracy when carrying out their functions.

The role of rebel can be enjoyable and is one that is necessary at times. However, once one leaves one’s teenage years, most people come to realise that it is also a role that needs to be embraced selectively. Mr. Boyd Barrett et al would do well to reflect on whether their desire to be seen as rebels in fact undermines the collective institutions and values that their leftwing orientation should seek to promote.

Trichet: The Man Who Destroyed the Euro

I don't know much about economics. However, sometimes the truth is so plain that even (or only?) those who lack expert knowledge can see it.

Call me Cassandra but the first article I ever wrote for the Irish Times came out on 13 January 2004. Funnily enough, at the time, the main complaint in the media was that the now saintly Germans, along with the French had not been punished for running excessive budget deficits. My article noted the differences between booming Ireland and struggling Germany and argued that "the euro is not sustainable under current political and economic arrangements". What was necessary, I thought, was for us to "face the reality that a single monetary policy will not be able to function with out any significant harmonisation of fiscal policies". The article concluded that "unfortunately there has as yet been no indication that European leaders are willing to take the tough decisions necessary to address this problem". While being right is nice, it is not as nice as living in a functioning economy. Sadly however, in the past seven years it appears that the decisions have only got tougher and the willingness to take them more scarce.

As far as I can tell, the folly of the approach of European leaders to situation in relation to Greece is equally obvious. The German finance minister, who gave a great speech to the Bundestag the other week, (http://www.irishtimes.com/newspaper/finance/2011/0611/1224298736676.html) has called for those private institutions who lent Greece money in order to make a profit to take some of the losses resulting from the fact that Greece can't pay.

Unfortunately, he has been blocked by Jean Claude Trichet (http://economicsnewspaper.com/policy/german/greece-crisis-schauble-in-confrontation-with-the-ecb-31778.html), the president of the European Central Bank who fears that to do this would cause a banking crisis similar to that which occurred when Lehman Brothers collapsed and banks ceased lending to each other for fear that a large number of banks could go bust due to losses incurred in relation to deals they had made with Lehman's.

Trichet is right that a Greek default, or forcing banks to take a haircut on money they have lent will be very tricky. However, what he has not made clear is how he envisages getting out of this mess without such a default.

Greek public debt is over 150% of GNP and they still have an enormous budget deficit. Greece is not going to be able to pay this debt back under any conceivable scenario. The scale of tax increases and spending cuts necessary to generate the kind of budget surplus to pay this kind of debt off would shrink the Greek economy to such a degree that the ratio of debt to GNP would only worsen. Trichet has not made clear how his recipe of further austerity can possibly bring Greece or the Euro out of its current predicament.

Banks who paid their analysts hundreds of thousands to verify that Greek government debt was a good bet and who hoped to make a profit from lending to the Greek government, will have to take a hit. Not only in the Greek case, but most flagrantly in relation to the private debts of Irish banks, Trichet has tried to avoid the economic damage done by foolish lending by banks by having the public take responsibility for paying off debts that might otherwise not be repaid (the ECB blocked IMF backed attempts to get senior bondholders of Irish banks to take a haircut).

His thinking is presumably that the public purse is so enormous that it could take the strain and the disruptive consequences of allowing banks to suffer the consequences of their greed and stupidity could be avoided. What is clear now is that the amount of debt owed is so great that the public purse is unable to sustain it in Greece and possibly in Ireland too.

Despite these clear facts Euro zone governments and the ECB keep avoiding the evil day those who foolishly lent money will have to take some of the consequences of doing so. This day will be painful but delaying it by throwing a further €12 billion at Greece will only make things worse.

Jean Claude Trichet presided over the huge credit flows within the Eurozone that caused this mess. He, along with feckless Greek governments and stupid, blind and lazy regulators in Ireland, allowed this huge credit bubble to reach an unmanageable size. He needs to be asked "How is your recipe of further austerity and no restructuring of debt going to allow Greece to pay off its debt mountain?" Any fool, even one who, like me, knows little about economics, can see that his "solution" cannot but fail. Austerity will shrink the economy, debt will increase relative to GNP and the cycle will go on making the debt ever less sustainable.

What is needed is an orderly restructuring. Banks will have to take a hit. This is going to be very very disruptive. Perhaps the ECB can, like the US Federal Reserve and the Bank of England, engage in "quantitative easing" (printing money). The Germans will hate this but there is no reason that the need to save the European economy should be subjugated to  the need to assuage the traumatic memory of high German inflation in the 1920s. There are no easy options and the future is going to be rough. Sticking plaster remedies based on the hope that something will turn up are going to make things worse.

European leaders are behaving like the authorities of a burning city who can't bring themselves to take the unpleasant step of dynamiting buildings so as to create a firewall to stop the spread of the flames. Yes, dynamiting houses will cause homelessness but  wringing your hands and doing nothing in the hope that it might suddenly rain will lead to the whole city burning.

Trichet's intransigence and stupidity may well mean that he may well end up being the person who destroys the Euro and with it the credibility of the European integration project.

Tolerance Is a Legitimate Element of Immigration Policy

I had an article in the Irish Times on Thursday. I cringed at the headline they put on it which gave the impression that I am anti-immigration. Rather, the article is an attempt to propose a way through which Ireland can remain open to immigration. People will never accept immigration if it means rolling back on cherished, hard-won values. Nor should they. Liberalism and egalitarianism are very precious, hard-won features of our society that should be defended.

Of course the debate is difficult and given strong xenophobic tendencies in many countries, it is necessary to proceed carefully. However, judging from a lot of the comments on the article there is a strong resistance among many people to any degree of nuance or recognition of complexity in discussing immigration.

Immigration can be a big positive but can also bring problems if not properly managed. Daniel Patrick Moynihan rightly said that the liberal project in the US "began to lose when it began to lie". Similarly, those who favour a liberal approach to immigration will lose the public if they insist that immigration is always positive and never poses any difficulties in any circumstances.

A sustainable liberal approach requires acknowledgement of the complex reality that immigration can be positive but can also provoke difficulties. Insisting that anyone who tries to have a realistic discussion, that takes account of the possible difficulties that immigration can bring is simply a racist, will cause immigration and its advocates to lose support of the general population whose lived experience of immigration will inevitably be more complex than pleasing PC slogans.

The article is available at this link for the next week or so:

http://www.irishtimes.com/newspaper/opinion/2011/0616/1224298999951.html

The text is as follows:

OPINION: It is not xenophobic or racist to have immigration laws that seek to give preference to migrants who are committed to tolerance, writes RONAN McCREA 

CONTRARY TO the suggestion of the editorial of June 13th (“Citoyens”), moves to require immigrants to sign up to liberal and egalitarian values are not a French particularity, but have been seen in the immigration law of a range of European countries.

In 2006 Tony Blair stated that those who could not accept tolerance should not come to the UK. Britain now requires applicants for citizenship to pass a “life in the UK test”, requiring applicants to indicate, among other things, an awareness that gender equality is the law.

In Germany, the citizenship process in many Länder includes questions on gender equality and same-sex partnerships as part of a process designed to verify that applicants accept the “values of the constitution”. Austria imposes an “integration contract” on immigrants, while Dutch immigration authorities now require potential immigrants to indicate an awareness of gender equality and to watch an informational DVD about the Netherlands that includes footage of a same-sex couple.

Although the recent French decision to refuse citizenship to a man who refuses to let his wife speak or leave home without his permission has been challenged in court, this appeal is unlikely to succeed. The French supreme administrative court made clear in the 2008 Madame M case that those who choose to immigrate to France can legitimately be required to accept the fundamental values of the republic, including gender equality.

As your editorial points out, these tests are, to a significant degree, motivated by xenophobia, prejudice and anti-immigrant sentiment. In particular, elements of the Dutch and German approaches have been applied selectively, targeting immigrants from mainly Muslim countries while exempting others.

While the relevant French law applies to all, it is true that many of those who supported it have been motivated by hostility towards Muslims. This is especially true of politicians like National Front leader Marine le Pen, whose party has never been keen on the gender equality it now so vigorously defends.

However, it is simplistic to conclude, as your editorial does, that such laws and policies are solely attributable to hysteria or prejudice. Many who are neither racist nor anti-immigration are legitimately concerned at the possible impact on hard-won freedoms of a failure to ensure migrants respect principles such as gender equality and gay rights.

A 2004 survey of religion and politics worldwide by Harvard and Michigan professors Pippa Norris and Ronald Inglehart showed western European approaches to gender equality and sexual liberalism deviate strongly from approaches in many other areas of the world, particularly areas with Muslim majorities.

It is inevitable that migration from areas where matters of gender and sexuality are still largely patriarchal and conservative will raise complicated issues. In the Netherlands, for example, major increases in attacks on gay couples by individuals from cultural backgrounds that are traditionally intolerant of homosexuality have been recorded.

Similarly, controversies relating to the book The Satanic Verses and Danish cartoons of the prophet Muhammad, showed deep differences between elements of immigrant communities and mainstream western views of the acceptability of lampooning religion.

Immigration laws in all countries regularly favour those with certain traits. The young, the highly skilled, the healthy, those who speak the national language or with ancestral connections to the country are often favoured. Is it not equally legitimate for states to give preference to those who are committed to pluralism, tolerance and gender equality?

Furthermore, it appears that, particularly under multicultural arrangements, time is not bridging the gap in values and the children of immigrants are not moving any closer to liberal values than their parents. A 2009 Gallup survey of European Muslims found zero per cent of British Muslims agreed that homosexuality was “acceptable”, a figure strikingly lower than that of Muslims in non-multicultural France (35 per cent). The Pew Research organisation has also found French Muslims to be far likelier than those in the UK to say their primary identity was “French” than British Muslims were to choose “British”.

Europe should remain open to immigration. European cultures will surely benefit from the immigrants’ contributions. A confident and open approach to the cultural change this will bring is in the interests of immigrants and the host society.

Individualistic western European societies can learn much from Muslim approaches to community and charity. However, there are also certain kinds of change a society is entitled to reject. A country can remain open to immigration while making it clear it does not intend to compromise on hard-won values such as liberalism, tolerance and respect for equality.

The process of working out a society’s “non-negotiables” will be complicated and difficult. Moreover, such a process of negotiation should always remain sensitive to the difficulties that migrants face and Europe’s long and shameful history of racism.

Nonetheless, there are significant differences between predominant western European approaches to issues such as gender equality, sexual liberalism and criticism of religion, and approaches in much of the world, including many Muslim-majority countries. As Irish society becomes more diverse, it is highly likely these differences will produce here the kind of difficult issues in relation to tolerance of intolerance that we have seen in our European partners.

Other countries, such as the Netherlands and the UK have run into trouble by assuming that such problems would not arise and subsequently causing resentment by abruptly turning their back on multicultural policies. Ireland has the advantage of coming late to the immigration game and can learn from these mistakes by making it clear early on what we expect of immigrants and what values we require future citizens to sign up to.

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Ronan McCrea, a graduate of Trinity College, Dublin, lectures in law in University College London. He is one of the contributors to Quand la Burqa Passe à l’Ouest (The Burka in the West) , which will be published by the Presses Universitaires de Rennes later this year

The Judiciary, Lawyers and Constitutional Reform

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.

The Virtue of Tribal Loyalties

Everyone can agree that blind political loyalty is bad. It is wrong to vote for a party no matter how idiotic or cruel their policies simply because that is what your parents, co-workers or co-religionists have generally done. The good news is that blind political loyalty in the Western world appears to be on the decline.

Recent elections in Canada and for the Scottish parliament have seen historic collapses in support for the Liberal and Labour parties both of which had long been dominant. In Germany the Social Democratic Party has fallen behind the Green Party in many polls while in Ireland, Fianna Fail, the largest party in every election since 1932, lost almost three quarters of its seats in the March general election.

In Ireland, the eclipse of Fianna Fail can be attributed to the cataclysmic consequence of its mismanagement of the economy. However, the decline in party loyalty in Western democracies is a longer-term structural trend. In the UK the percentage of votes gained by the two major parties has declined from well over 90% in the 1950s to just 65% in the 2010 election. In the United States, the two main parties are still dominant but numbers strongly identifying with either party have been in steady decline.

In some ways, this is a good thing. If voters come to a thoughtful and informed choice instead of blindly following the voting behaviour of their parents or socio-economic group, that is surely a good thing.

Sadly, this is not what decline in party loyalty has brought about. Recent election results do not evidence sustained shifts towards particular parties as people reconsider wrongheaded policies of particular parties.

Rather, the fortunes of political parties appear increasingly to depend on the fickle favour of lady luck with voting intentions swinging wildly between them and the results of elections differing markedly from the intentions expressed to pollsters a matter of months and sometimes weeks before. The shift to the SNP in the recent Scottish election, for instance, happened in a matter of weeks, Labour having been riding high throughout the winter and early spring. Similarly, the eclipse of the Liberal Party and crushing of the Bloc Quebecois in the Canadian election was similarly the result of a swing that manifested itself in a matter of weeks.

Of course, the old days of more rigid party loyalty, when people voted largely in accordance with established preferences their group or family, was not ideal. However, those communal and intergenerational decisions to support a particular party had an element of wisdom in them.

These collective political loyalties were at least partly the result of informed, long-term collective experiences that informed ideas of what was best individually and collectively for particular voters.

Working class commitments to social democracy, for example, were the product of decades of experience and reflection of successive generations whose lived experience had taught them the value of broader progressive approaches to law and politics and the power of the state to reduce insecurity and broaden opportunity.

Because public policy is increasingly complex and often tedious in the detail, it is difficult for people to keep abreast of what is in their interest and the national interest.

The current highly fluid political order makes it increasingly difficult to engage the public in the serious task of facing the painful changes that face Western democracies.

In the past parties could rely on loyal traditional supporters to stick with them when they took painful but necessary decisions. That is no longer the case. The parties have to seek to win over all of their supporters anew in each election.

As party loyalties decline but most individuals continue to devote a tiny amount of their time to thinking about politics, their votes will increasingly be determined by whichever party can give them the most simplistic and superficially pleasing slogans.

This is not a context within which it will be possible to take the extremely challenging and painful decisions that are currently necessary. Denial is a powerful force and for people to accept that they may have to consume less, retire later or pay more tax requires sustained debate, truth-telling , political engagement and a degree of historical perspective.

The decline in traditional party loyalty is in fact encouraging encourages parties to play to an ever lower common denominator with voters’ preferences increasingly unmoored from either sustained engagement with politics or the wisdom brought by historic group loyalties. The result is an electorate swinging every more wildly and frequently between parties and growing ever more frustrated at their failure to produce the promised easy solutions.

In its most extreme version we get to the situation in the United States where the landslide repudiation of the Republicans and their policies in 2008 was followed only two years later by an equally crushing Republican triumph in the mid terms of 2010. The US electorate appears to be swinging increasingly wildly between the parties both of which pander to a childish desire for instant and painless solutions.

Falling levels of party loyalty are bound to increase the incentives to treat voters as consumers who are always right no matter how self-serving or irrational their desires. This is especially damaging for issues such as climate change that require short-term pain for long-term gain. It will also mean that the pain of economic adjustment is likely to be imposed on the poor and marginalised as attacks on their interests will be most readily moulded into digestible soundbites and superficially seductive tabloid headlines.

Tribal loyalties are not ideal but without a major increase in public engagement with political debate we may come to regret their passing.