Alex White (Labour)

I thank the Leas-Chathaoirleach for the opportunity to participate in this interesting and important debate on the Constitution passed by the people on 1 July 1937 and commenced on 29 December 1937. We are a bit late to have an event to commemorate the 70th anniversary in the manner suggested by Senator Leyden but perhaps we can consider something more elaborate for the 75th anniversary which is four years away.

The Constitution is a very important document. It is the central legal document of the State. Senator Leyden described the Constitution more than once as Dev's Constitution. None of us is unaware of the fact that Mr. de Valera was centrally involved in the drafting of the Constitution. While he drafted it with a little help, perhaps, from some clerical and ecclesiastical friends, there is no doubt he was at the heart of it.

It is 70 years on and there is an important point to be made in this House and for us to accept about the Constitution. For the constitution of any state to be as live and important as this document, it must pass on from being the property or the province of one individual, however important historically that man may be. I do not get too carried away with people using phrases such as "Dev's Constitution". That is fine. I will not fall out with people over that but the Constitution belongs to the people and that is the important fact we need to acknowledge, especially at this stage.

When I began to read the Constitution as a young person I had a sense that elements of it were overly influenced by Catholic teaching. I refer to the inclusion of phrases such as women's "duties in the home". Many such phrases, which arguably are quite confessional in tone, occur in the Constitution, especially in the Preamble. They have always made me very uncomfortable but they do not have the effect of undermining the fundamental importance and value of the document itself.

I am a member of the All-Party Committee on the Constitution and if I were asked to bring my shopping list of aspects that might be taken out and other issues that would be included, I would have a few of them. We ought to think twice about having such phrases as the opening line of the Constitution: "In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred". I do not make this point remotely in any sense to disrespect religion or the importance people attach to closely held religious views and practice, but whether it belongs so prominently in the central legal document of the State is worthy of debate.

During the debate held on the previous day I heard the Minister respond to something Senator Regan said about Garret FitzGerald's constitutional crusade in the 1980s. I thought the Minister's speech was a little dismissive of what Senator Regan said about the contribution of Garret FitzGerald and others during the 1980s. There is nothing wrong with opening up sensitive issues to public debate and, if necessary, seeking to amend or nuance the Constitution in a way that is more appropriate to today. Senator Mullen indicated that was being done to curry favour with the Unionist community in the North. That may well have been part of the context but some issues such as this are worth examining in their own right in the context of where we are as a State and society. I accept these issues were sensitive in the 1980s, and still are, but if we believe, as I do, that the Constitution requires some changes, they ought to be made for our own reasons rather than it being said we were doing it simply for some ulterior purpose, important though it might be.

Other speakers referred to Dr. Dermot Keogh's recent book which is a fascinating study of the drafting of the Constitution and how it came into being. Many Members have read it and I recommend it to those who have not. It shows that the debate in the Dáil in the lead-up to the passing of the Constitution in 1937 was quite partisan. That it was passed by less than 51% of the population on an election day may have been part of it. Mr. de Valera spoke on the proposed Constitution at something like 20 or 25 rallies throughout the country. There was a highly politicised general election campaign going on at the time. It is not really obvious whether people were voting on the document itself or along party political lines on the day in question. According to Professor Keogh, approximately 50,000 Labour Party voters, for whatever reason, did not vote in favour of the Constitution. That may have been more bound up with the politics of the day and the general election than with the content of the document.

Dr. Gerard Hogan, SC, who has written widely on what is sometimes claimed to be the Catholic or confessional nature of the document, has argued quite compellingly that perhaps this criticism is overstated in the sense that while there are phrases to which objection could be made, the identity of the authors of the various Articles is of little relevance, even if they were written by Archbishop John Charles McQuaid or whoever. This is especially the case when considering the Articles which deal with the vindication of personal and fundamental rights, such as the right to privacy.

Since the 1960s the Supreme Court has come to regard the Constitution as a live document which is not set in stone. It has been prepared to interpret it, sometimes, it must be acknowledged, very liberally and perhaps in a way never envisaged by its authors in the 1930s. This brings me to a point Senator Leyden mentioned in respect of the 1983 referendum on the so-called pro-life amendment to the Constitution. It is important to recall that the Supreme Court interpreted the amendment in a particular way and whereas Senator Leyden made the point that we have the protections of the Constitution, I must remind him and the House that the Supreme Court has, in fact, decided that what the Constitution means is that abortion is lawful in this State in certain circumstances. That is the constitutional position, yet the Houses of the Oireachtas have failed to legislate.

My party is in favour of legislation being introduced in respect of the X case decision but regardless of whether that happens we need to be aware of the facts. When we laud the Constitution as an outstanding document and speak of the 1983 amendment, we must remember it has been interpreted to the effect that abortion is legal in certain circumstances. That ought to be legislated for in these Houses but it has not been done. Last week the Minister said we should not visit the issue but we need to do so. Why would legislators ever state they will not legislate in respect of such an important question? While it is a sensitive matter, it is wrong that we as legislators should seek to set it to one side.

I do not want to pre-empt the deliberations of the Joint Committee on the Constitutional Amendment on Children, of which I am a member, but we need to exercise great care on any amendment to the Constitution. We need to exercise even greater care in circumstances where we propose to reduce or remove rights that currently exist. I am not saying that we ought not to do it but we need to be clear-headed in our thinking. The only time we have ever put an amendment in the Constitution that effectively renders something immune from constitutional challenge was in 1972 when we joined the European Union, where a provision was inserted into the Constitution to the effect that nothing in it invalidates any provision which relates to our joining or being a member of the European Community.