Michael McDowell (Dublin South East, Progressive Democrats)

This is a somewhat theological point and I am loath to get into a theological battle at this hour of the evening. However, while not speaking on the advice of the Attorney General, it is my view that Article 46 of the Constitution provides that the method of amending it is by means of a Bill that is enacted by the Oireachtas. Subject to being persuaded otherwise, it is my view that the provision of Article 46.3 is relevant here. It provides: "Every such Bill shall be expressed to be 'An Act to amend the Constitution'." The Bill must be expressed to be an Act to amend the Constitution. Having been passed or deemed to have been passed by both Houses of the Oireachtas, it must "be submitted by Referendum to the decision of the people in accordance with the law for the time being in force relating to the Referendum".

I do not believe that the phrase "referendum" means that the people make the decision in the sense that the people do the enactment. I believe it is a condition precedent to the President signing a Bill to amend the Constitution, that it has been submitted for the decision of the people in a referendum, but the people's act in approving a Bill to amend the Constitution at a referendum is not a process of enactment. It is a process of decision, which amounts to a condition precedent, not a legislative act. However, it does not really matter which way it is because all the amendments to our Constitution have been done in the old way, which seems to follow my understanding of the matter.

I do not think the Labour Party could possibly argue that the Constitution has never been validly enacted for want of the addition of these words. That would be a radical proposition, to put it mildly. Therefore if the old method of procedure, which is the traditional one, is sufficient to amend the Constitution, we should stick to it. It has not gone wrong yet and it has not been challenged yet. I would be surprised indeed — famous last words, I suppose — if this came unstuck in the courts on that basis.