Brian Lenihan Jnr (Dublin West, Fianna Fail)

We do not know what that crusade was about. It was followed by a pro-life amendment. We really do not want to go there.

The Constitution was put in place in 1937. As Senator Regan fairly notes, it has been amended many times since but it embodies certain features which have assured it has endured. I agree with the proposition that the Constitution re-bottled some wine and built on the work of the Free State Constitution and the earlier Home Rule Bills going back to the first Home Rule Bill introduced by Mr. Gladstone in 1886. However, there is one fundamental feature which distinguishes the 1937 Constitution from all previous proposals for the Government of at least this part of Ireland, namely, for the first time it confirmed in an unequivocal way the national sovereignty of the Irish people in this part of Ireland. The 1922 Constitution was annexed to a United Kingdom Act of Parliament whereas the 1937 Constitution was not considered or enacted in that assembly.

When Senator Regan referred to Mr. Lemass and his famous comment of 1927 that Fianna Fáil was a slightly constitutional party although it was open to the definition of being a republican party, he was of course referring to the conditions under which his party believed it had to operate under the 1922 arrangement. It was decided in 1937 to go back to the people and have a clear unequivocal root of title for the Constitution, and this was achieved. One of Senator Regan's most illustrious predecessors on the Fine Gael benches in this House, Senator Alexis Fitzgerald, made that point in a very fine obituary of Mr. de Valera published in 1976, when he noted that one of Mr. de Valera's greatest achievements was to lead that unconstitutional band into the constitutional light of day.

That was his achievement in 1937. The question is whether this transcended a party achievement and became an achievement for the nation and the State. When the plebiscite took place in 1937, there was a majority for the Constitution but it was far from a decisive one. To be accepted by a people a constitution must have widespread acceptance and it is not sufficient that it should have simply the acceptance of one party or another in a mechanical voting exercise. The question on which we must reflect seven decades on is whether that text — that text as amended, as Senator Regan points out — has managed to provide an enduring basis for the Irish polity. I suggest it has.

The first feature of the Constitution that achieved this was the question of national sovereignty and the fact this was clearly and unequivocally vested in the people for the first time. It is true that the 1937 Constitution contained some rhetorical flourishes, not all of which would be in accordance with popular thinking today. That said, it is important that a people is entitled to make such rhetorical flourishes, which was a right denied to the Irish people for many centuries.

The Constitution of 1937 secured popular acceptance in the decades that followed, the degree of which is illustrated by the fact it was not necessary to amend the Constitution, after the initial transitional amending period, until 1972. For more than three decades there was no popular demand to amend the Constitution and the only proposal to amend it in that era, which was brought forward by my own political interest, was the proposal to abolish the system of proportional representation. This was something which the people in their wisdom or lack of wisdom decided to reject, a decision which certainly gave the people more authority and certainly made the politicians work harder. As to whether it produced a better system of government, future generations of political scientists will have to decide.

A further feature of the Constitution is that it settled the national question where this part of Ireland is concerned. It is interesting that when in 1992 the Downing Street Declaration, which is the basis of the modern peaceful arrangement in both parts of Ireland, was formulated, it was felt necessary in the first instance to affirm the right of self-determination of all of Ireland, albeit that it must be exercised in two parts. This reflected the thinking in Articles 1, 2 and 3 of the Constitution. Articles 2 and 3 were modified by vote of the people but thank God we had them to negotiate with when the Good Friday Agreement came to be negotiated, and that they had not been abandoned in some kind of crusade. They proved very valuable in the discussions that took place on the Agreement. The Irish people were able to reformulate their aspirations in the context of a comprehensive settlement of the Northern question, which has now been brought about.

I do not want to dwell too long on those issues. I wish to draw attention to a second feature of the Constitution, the question of popular sovereignty, with which I believe all of us agree but about which I wish to raise certain questions. The Constitution of course confirms our sovereignty as a nation but it also vests that sovereignty in the people, who are entitled to exercise the franchise in the State. De Valera himself said when he presented the draft to Dáil Éireann in 1937, "If there is one thing more than another that is clear and shining through this whole Constitution, it is the fact that the people are the masters." There is no doubt the Constitution embodies that principle to a unique degree.

There is the principle that the Constitution is vested in the people and can be changed only by amendment by popular plebiscite in a referendum, which establishes a rigidity within it. One cannot, as in some constitutions, amend it by universal agreement of the Houses or by some special majority in both Houses. One must have a referendum on every word, comma and full stop contained in it, which has been our arrangement since 1937, or rather since 1942 when the transitional period for amendments elapsed. This is not the practice in any other European state, as we know from the course of the current referendum on the Lisbon Treaty. It is the practice in some, though not all, jurisdictions in the United States to have frequent referenda and, of course, there is one other European state, not a member of the European Union, which has frequent recourse to the referendum, Switzerland.

There is another view, of course, which is that the people express their authority through their elected representatives. That view is accepted in the French Republic and in such states there is far less ready recourse to the device of a referendum. The idea of popular authority is also embodied in the President who is the ceremonial expression of that popular authority. As Senator Regan pointed out, the President has a valuable power in ensuring that the Legislature does not trespass on the rights of the people, preventing it from doing so in the first place by having recourse to a Supreme Court opinion. Equally, the courts preserve the rights of the people in their interpretation of the Constitution. There is, therefore, a strong emphasis on popular authority in the Constitution as well as on national sovereignty. That theory of popular authority runs right through the Constitution. I will not dwell on the political institutions, which we talk about often enough. Our presidents have served us with great distinction and the creation of that office in the Constitution was a valuable step. One can see the idea of popular authority shining through the provisions.

In most European states the election of a ceremonial head of state is unusual. Normally a head of state is elected by Parliament in a special procedure. I am subject to correction but I think Iceland is the only other European country that elects a president. However, some of the new central and east European states, which have unshackled themselves from the Soviet system, may have a similar arrangement. Nonetheless, that arrangement is an unusual one and contributes to a certain unreality in the presidential election. Senator Harris, who is present, can talk about presidential elections with greater authority than most. However, it seems to me that such an arrangement reduces the candidates in a presidential election to promise to do all sorts of things in the presidential palace.

The Icelandic Prime Minister told me that in a recent presidential election one of the main issues was whether the cellar in the presidential palace would be opened up to voters. There is a difficulty in that because if the president does not have executive powers a presidential election can of necessity become a beauty contest. It is important, however, that the President should be elected because it means that people are personified in some way in the State through the person who transmits the seals of office and can safeguard the public interest concerning legislation.

The courts are a public institution of the State, not a party political one. One of the key features of the courts, as established in the Constitution, is that they are given express powers to review legislation. The earlier United States constitution, on which many of the provisions of our Constitution were modelled, did not have an express power for judicial review. Chief Justice Marshall identified that power as being in the constitution and it was expressly conferred in our Constitution. It has been exercised frequently since 1937.

As regards exercising powers of judicial review, it is important to bear in mind that Ireland is a common law jurisdiction. Many continental jurisdictions have constitutions with fine-sounding statements about rights but their legal systems are not strong in vindicating and enforcing such rights. One of the great strengths of the common law has been its emphasis on remedies rather than rights, including the fact that the individual plaintiff can sue for damages, obtain an injunction, obtain an order for contempt of court when a court order has not been enforced, or attach a company for sequestration of its assets when it is not in compliance with a court order. The common law therefore developed a powerful battery of remedies for the enforcement of rights. If that is combined with a constitution that declares abstract rights, one confers great judicial powers.

In many jurisdictions of continental Europe there are many fine declarations of abstract rights. The French constitution, for example, contains the declarations of the rights of the citizen, which was made during the great revolution there. However, the French constitution does not contain a system for the enforcement of these rights. In fact, the French constitutional court is dependent on a reference from the president or some other court to arrive at a determination. Likewise, the German system has a constitutional court. Individuals have far greater access to that court but there must still be an element of reference from another body.

In our system, by contrast, the High Court is vested with full and original jurisdiction to determine all matters whether of law or fact and the individual has a right to invoke that jurisdiction to enforce individual constitutional provisions. That is a powerful protection for the individual, leaving aside how the rights are formulated or expressed. How far it can extend was illustrated in the proceedings brought by Raymond Crotty against the Single European Act. Senator Regan also instanced the case of electoral legislation and the insistence on equality of representation in the delimitation of constituency boundaries. There have been many other examples but I will not recite them all. The most fundamental one of all, however, is the case of Byrne v. Ireland in which the Supreme Court decided that the State was a juristic person subject to its own laws and accountable to its own citizens before the courts. That was a fundamental decision.

I agree that the Constitution was enacted in a context when the courts did not have these powers. While the 1922 Constitution had envisaged the development of judicial review it never came into being because of the troubled circumstances of the time. Therefore there was no effective power of judicial review. Many judges of that generation had grown up in the late 19th century where it was axiomatic that Parliament was sovereign. The idea of a sovereign court deriving power directly from the people and reviewing their charter was not congenial to them. That changed in the years following the enactment of the Constitution. Lawyers are slower to change their habits than other professions but eventually the lawyers and judges did change. Men like Judge Gavan Duffy, Mr. Justice Walsh and Chief Justice Ó Dalaigh developed the courts and gave a dynamic interpretation to the Constitution. Both Seán Lemass and Éamon de Valera were on record at the time as welcoming that development. They welcomed the fact that the Irish Supreme Court modelled itself on the United States Supreme Court.

Fundamental rights provisions are an important element of the Constitution. In 1937, the formulation of fundamental rights in a constitution was common. I have already mentioned the Soviet constitution of 1936, which guaranteed fundamental rights but of course that was illusory given the character of the state in question. We arrived at a different conclusion as a result of the formulation of those rights but it does raise a difficulty. I discussed that difficulty in this House some years ago when I was acting as Minister of State in this Department in the debate on the European Convention on Human Rights Act 2003. There is a difficult question of how one harmonises the recognition of fundamental rights in our Constitution with the recognition of fundamental rights under the European Convention and the Community legal order. This is an aspect of the debate on the Lisbon treaty which will be very important.

In 1972, we joined the European Communities, as they were then called, and the people voted on the necessary constitutional amendment to permit the State to become a member of the European Communities. At that time, a provision was inserted into the Constitution providing that the State was authorised to be a member of those Communities and that any acts done, measures taken or obligations necessitated by the obligations of membership of those Communities would be immune from our Constitution. That has been the legal position since 1972. Matters pertaining to the Community legal order are determined by the European Court of Justice in Luxembourg. A separate legal order exists side by side with our Constitution as envisaged first in the Rome treaties and latterly in the Maastricht and Amsterdam treaties.

The Lisbon treaty — a consolidating and codifying document — purports to put that whole arrangement on a final footing. While we will have a debate on this matter in the next few months, it is important to make an important preliminary point. For the first time the Community legal order will have its own fundamental rights guarantees — not ones that will entrench on our legal order but fundamental guarantees with the Community legal order. That is a desirable development. In effect, in 1972, we gave a blank cheque in legal terms to the European legal order. Our legislators and Ministers have worked to lobby and secure the best possible arrangements for Ireland but the Community legal order as a whole has not been ring-fenced by the idea of fundamental or individual rights. It will be ring-fenced with concepts of such rights in the Lisbon treaty. These rights are carefully drafted and formulated so as not to entrench on the domestic fundamental rights guaranteed in our Constitution. Essentially, we are witnessing in the Lisbon treaty the establishment of a treaty of union at European level that resembles the constitutional order with which we have been familiar in our jurisdiction. That is a welcome development, which should be supported. I fear it is open to misrepresentation and people will suggest it has something to do with the fundamental rights clauses in our Constitution, whereas it is concerned with the competences we have conferred on the European Union. Its purpose is to ensure that such competences are subject to a regime of fundamental rights in the same way as the competences, that we as a national Parliament and Government exercise, are also subject to a regime of fundamental rights. It is important that the competences of the Union should be subject to a similar arrangement.

Professors Keogh and Hogan were mentioned and I refer to the question of the status of the texts of the Constitution, which was enacted in the Irish text as well as the English text. Both texts are authentic and both are texts of the Constitution. On occasion, it is said the Irish text is the sole text of the Constitution but that is not correct, as the Constitution was published in both texts. Both texts are official and authentic. The Irish text is enrolled in the original cló gaelach and subsequent amendments to the Constitution have been so enrolled. If there is a conflict, the Irish text prevails.

Micheál Ó Cearúil conducted an excellent study for the All-Party Committee on the Constitution, when I was its chairman, and he explored the implications of the Irish text. One of the most interesting features was that the text was not drafted as a translation of the English text. Rather Mr. de Valera assembled a separate collection of translators who worked through the text in tandem with the evolution of the English version. As a result, the Irish translation is a free rather than a literal translation of the Constitution and this has led to discrepancies between the two texts. The Constitution itself provides that in the case of such a discrepancy the Irish text should prevail. However, the courts have rarely found a discrepancy and they have sought to harmonise the text. Both texts, therefore, have served to illustrate each other.

I refer to the question of whether the separation of powers envisaged in the Constitution is true and in fact. Clearly, the people have the supreme authority under the Constitution but it then goes on to envisage that the people have ordained that there should be three separate powers — legislative, executive and judicial. While the judicial arm of Government is independent and its independent sphere of operation is carefully safeguarded by the Constitution, the political institutions of Parliament and the Government are interdependent under it. The Government is accountable to Dáil Éireann and Seanad Éireann advises and assists Dáil Éireann on legislation but these institutions are related to each other. It was admitted by de Valera that he considered in 1937 introducing an American style government in which the President or the Taoiseach, as President, would exercise more executive power and Parliament would be a separate body but he reflected upon it and declined to do it because he believed in the importance of individual responsibility of Ministers to the House. He was correct in that judgment. It is important that Ministers should be individually accountable to Parliament as well as collectively accountable as a Government. That was the effect of that decision on the drafting of the Constitution.

I commend the Seanad on having this worthwhile debate. I have referred to the past and I have examined essential features of the Constitution. Looking to the future, the greatest issue relating to the Constitution is the sheer volume of judicial interpretation placed upon it. The late John Kelly made the point that it was never envisaged by the drafters that the document would go through the minute exegesis it has gone through in the courts. As a result, we have thousands of judicial decisions giving precise interpretations of different clauses, subclauses and paragraphs of the Constitution. That can put a substantial fetter on the capacity of these Houses to legislate as they might please. I do not envy the Parliamentary Counsel who advises on legislation because clearly the range of constitutional interpretation must be taken into account in the formulation of legislation.

However, the fundamental issue relating to the institution of judicial review is how far the courts go in the interpretation of the Constitution. Reference was made to the fact that in 1965 the courts decided there were implied rights in the Constitution as well as those expressed therein. Once an implied right is recognised, the courts have substantial power to develop implied rights and to read into the Constitution many matters not thought to be within its province. It is welcome that recent Supreme Court decisions clearly recognise judicial self-restraint in social and economic matters. In a number of decisions over the past decade the court has reaffirmed that it is for us in the Oireachtas to determine issues relating to the allocation of resources. The judgments on social and economic matters must be made by us, as legislators, in the Oireachtas and not litigated in the courts. It is clear the Supreme Court has developed that doctrine in recent years, which I welcome, because the reality is that a social problem examined from an administrative and legislative point of view can be tackled from that point of view but a social problem litigated in the Four Courts will not always be litigated to a correct conclusion in terms of the broader interest of the people. That is my view on judicial review but others may have different views. I do not speak on behalf of the Government in that regard but I thank Senators for their contributions to date and I look forward to the rest of the debate.