Brexit and the Irish Constitution

A couple of discussions on Facebook yesterday prompted me to collect together some thoughts on the Irish Constitution, its reform, and how that compares to the US and to the Brexit referendum result — or more specifically, to the ideas that many of my UK friends have to why the Brexit result should be overthrown.

In Ireland, we have a long history of copying the parts of UK law and society that we like, while loudly proclaiming ourselves to be completely different. So for those of us hoping to reform the Irish Constitution, what happens with the Brexit referendum has implications that most UK citizens don’t appreciate. The most obvious consequence is what happens to the border between the republic and the north — a scant thirty minutes drive from where I live — but it has been obvious for decades that the average UK voter has no idea of the politics in Northern Ireland and cares even less.

What is also concerning, though, is the various calls to question the Brexit referendum result in terms of the majority required to change constitutional law, and in terms of the percentage of the electorate that voted for the change. On the latter point, after our most recent referendum on marriage equality, a challenge that in part suggested that those who abstained from voted should be counted as voting for the status quo was, in my opinion, quite rightly rejected in court. If you can vote, but do not do so, your views cannot be implied nor should become part of the decision-making process.

Additionally, Richard Dawkins has suggested that the UK should have used a rule of two-thirds majority, similar to the US laws for constitutional change. Again, I think he is looking at this problem with a particularly UK focus — he doesn’t see the UK constitution in particular need for reform, and the particular result he is challenging is something he probably considers recessive instead of progressive.

Anyway, with this background, I had a look into the results from the referendums for amendments to the Irish constitution to see what the Irish Constitution would look like with the two-thirds majority rule. You can see the actual results here. I have excluded from the data almost all of the referendums that did not pass, as I’m really only looking for cases where the Yes would be changed to a No. The source data is from Wikipedia but I checked their source to make sure that the numbers weren’t fabricated — a nice easy table to copy (not embed) so the data in my sheet should only be considered correct from the situation as known in end 2015 (even though I write this in 2017).

So, what would the Irish Constitution look like? It was drafted to be very pro-family, talking a lot about how the family as a unit worked in society, and causing problems with the changes in what families look like — this is why we had to have a referendum on marriage equality, where the whole electorate had a say in something that disproportionately affects only a few. It’s very Catholic, unsurprising given the history of the country. For the modern, increasingly urban Ireland, the constitution makes no sense. It’s in desperate need of reform, and in what I think is a strength of our country we have been slowly working our way through a series of Citizen Assembly suggestions. Unlike the US, the constitution is not held to be sacrosanct, so although there have been the odd cry of ‘The heroes of the Rising would be rolling in their graves!’, that argument does not carry much weight. We’ve usually been spared the pain of somebody having to argue that James Connolly, for instance, would have been in favour of divorce.

If amendments had needed two-thirds of the vote instead of half the vote to pass, we would not have marriage equality. We would not have divorce. We would have a possibly grey area about whether it was legal to travel abroad to get an abortion, and it would be illegal to get information on foreign abortion services. We would still have the initial ban on abortion, though, which would have scraped through with 66.9% of the vote. The ban on the death penalty would not be in the constitution. Reasonably innocuous amendments, like a new court of appeal, would also not be enacted. I find it hard to believe that when Richard Dawkins says that constitutional change should be hard to achieve, this is what he meant to prevent or preserve, and yet his views on this are aligned with the remnants of Catholic Ireland, the likes of the Iona Institute, and the Catholic League who like to come poking into Irish politics whenever it seems like we might be about to enter the second half of the twentieth century.

Looking at the calculation for the proportion of the electorate that voted for each amendment — the 37% figure that the Brexit protests bring up — I’m not sure what sort of rule could possibly be drawn up for what an acceptable percentage would be. In only one case — when approving the changes needed to ratify the Good Friday Agreement for peace in Northern Ireland — did that number rise above 50%. (That was the amendment that had almost 95% of votes Yes, by the way.) The average was just under 33%, the median just over 31%. Mandatory voting would be the only way to make sure that an amendment reflected the views of 50% of the electorate before it would pass, unless the aim is to make constitutional reform impossible. There are various ways you could try and twist it — an arbitrary number of 35% of electorate and 50% of the vote; a minimum required turnout, although the expense of a referendum that would then be rejected due to low turnout is an odd political choice, and again what figure would you pick?

Most of my UK friends voted to remain in the EU. I’ve suggested to them that, when suggesting rules to overturn the Brexit result, they should try mentally applying those rules to the Irish referendum for marriage equality, and ask themselves if they are comfortable with possible changes to the result. I said above that we have a habit of copying what happens in the UK — if Brexit was defeated based on it not having two-thirds majority, rest assured that the religious right in Ireland will be challenging the marriage equality amendment on that basis, as well as campaigning for this to be become part of our amendment process moving forward. The current campaign to repeal the 8th amendment would almost certainly never succeed. Is that an acceptable price for us to pay?