Seanad debates

Thursday, 7 February 2008

The 70th Anniversary of the Constitution: Statements (Resumed)

 

12:00 pm

Photo of Alex WhiteAlex White (Labour)

In that context we rendered immune from constitutional challenge anything that would arise in the future. The current proposal on the child protection element of the children's referendum would render immune from any future constitutional challenge a provision that would be brought forward in law in respect of child protection. I do not say that this is not an extremely sensitive and important issue to be addressed after the Supreme Court decision in the CC case, as is the question of statutory rape and what that offence should consist of. However, as always in such situations, there are competing rights and we should not lightly take rights out of the Constitution or render immune from challenge a particular legislative provision, irrespective of its content. In the coming weeks and months we need to be careful about that and to scrutinise in great depth any change to the Constitution that entails the loss of citizens' rights, which is what is at stake.

The question of property rights and the privileged position that they enjoy in the Constitution is a matter that arises repeatedly and not only on the question of development land. We in this country have a right to join associations and here I am thinking of trade unions but there is believed to be a constitutional bar on requiring an employer to negotiate with a trade union or on introducing legislation that might make recognition of trade unions compulsory. That is not new and there are similar provisions all over the world, including in the United States which enacted trade union recognition legislation in the 1930s.

We are told here that the property rights provisions in the Constitution mean it is essentially a property right of an employer not to speak or negotiate with a trade union. The constitutional review group looked at this and thought that it was not appropriate that there should be a constitutional amendment and that it would be better dealt with by legislation. It was dealt with by legislation in the late 1990s and 2000, but it is now under significant pressure after the decision in the Ryanair case. In view of this, the question of the proper balance between trade unions and employers and property rights is an area that should be revisited. The trade unions are right to look for this issue to be reopened, whether in the partnership talks or, ultimately, by means of seeking a constitutional amendment.

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