If abortion is a matter of conscience for political parties, it doesn’t belong in the Constitution


2018 will more than likely see a referendum on the 8th Amendment of the Constitution in some form or another. At the Fianna Fáil Ard Fheis last weekend, delegates voted in support of a motion to oppose ‘any attempt to diminish the constitutional rights of the unborn’ thus sending a clear signal to party leader Micheál Martin as to where the majority of members stand on the 8th Amendment. In so doing, however, the Fianna Ard Fheis has only demonstrated why complex issues such as abortion do not belong in a constitution.

What Belongs in a Constitution?

Generally speaking, constitutions are a collection of rules and principles that express the shared values of a political community. To illustrate their agreed upon status, constitutional provisions tend to be harder to change than other laws such as legislation. If everybody agrees with the values in a constitution, then why should there be a need to change them? Constitutions also tend to be drafted in broad terms to allow for flexibility and to accommodate a wide variety of scenarios that the drafters may not even be capable of envisaging at the time the constitution is enacted. Drafting constitutions broadly can also help to ensure the ‘agreed’ status of constitutional norms by leaving space for differing, potentially conflicting interpretations of the same provision to co-exist. Of course, constitutions may need amending from time to time and an overly-rigid constitution can pose its own difficulties. In the United States, for example, the amendment process is so rigid that often the only way of changing the Constitution is to appoint members to the Supreme Court who are likely to interpret the Constitution differently. This has led to the Supreme Court becoming overly-politicised, undermining the legitimacy of the Court and making the appointment of Supreme Court judges a core election issue.

While Ireland’s Constitutional amendment process is more straight-forward, this does not mean that we should be more flippant when it comes to deciding what to put into the Constitution. Brexit has illustrated that referendums are blunt tools, framing complex issues into simple binary choices; the forthcoming referendum on the 8th Amendment is likely to be equally polarising, with misinformation abundant.

The Role of the Oireachtas

Areas of life requiring complex laws and regulation, or issues around which there is considerable disagreement in the community on should not be contained in constitutions. Rather, constitutions establish institutions that are empowered to decide and resolve these issues. In addition, constitutions also include checks and balances on these institutions to prevent abuse of these powers. In constitutional democracies such as Ireland, the legislature—the Oireachtas— is designed to be the branch of government best-placed to resolve disagreement. Indeed, it is said that legislation is the very product of disagreement as the people’s elected representatives debate the relevant issues and vote upon them after careful deliberation. In turn, elections ensure that the people’s representatives are held accountable for their decisions.

In practice, however, the reality does not match up with theory and very often, political parties impose their own discipline to ensure that everyone within the party votes the same way. Thus, many of the disagreements that should shape and frame legislation are instead resolved behind closed doors in parliamentary party meetings after which party members emerge united on an agreed position. In ‘Westminster-style’ parliamentary democracies such as Ireland where the Dáil elects the Taoiseach and members of the government must be members of the Oireachtas, the Government can generally count on the support of a majority in the legislature. As a result, the legislature often ends up not being a forum for resolving disagreement though debate but instead merely ‘rubber-stamps’ the will of the Government.

However, there are some issues that may not be subject to a strict party whip. Although a rarity in Ireland where party discipline is extremely strong, free votes on ‘matters of conscience’ are common in parliamentary systems around the world. Abortion is often the subject of a free vote as views can diverge dramatically on the issue, even within political parties whose members should, by definition, share a common ideology. Each party representative is instead allowed to vote according to what they personally feel is the right choice. A free vote therefore is a signal that there is considerable disagreement on a particular issue.

Disagreement and the Fianna Fáil free vote

Despite the fact that Fianna Fáil members share a common ideological base, they still disagree on abortion. Thus, the Fianna Fáíl Ard Fheis vote to support retaining the 8th Amendment came after a motion calling for Fianna Fáil to support ‘a woman’s right to choose in the forthcoming referendum on repealing the Eighth Amendment of the Constitution’. Nevertheless, it appears that Micheál Martin still intends to allow Fianna Fáil TDs and Senators a free vote on any bill to amend the Constitution on the issue of abortion.

 In so doing, the leader of Fianna Fáil has acknowledged that abortion is too contentious an issue for his party to have an agreed position on. However, the free vote on repealing or modifying the 8th Amendment will be different to a free vote in other countries on abortion. In Ireland’s case it is a vote on amending or repealing a constitutional provision. It is a free vote on enshrining a particular view on a contentious issue into the Constitution, taking resolution of this issue away from the Oireachtas, the body constitutionally designed to decide such matters. It is a free vote on an issue that is too controversial for a political party to agree upon but uncontentious enough to enshrine in a constitutional provision. Ultimately, it is conferring upon members of the Oireachtas the freedom to choose according to their conscience while denying this choice to women.

If a collective of like-minded individuals such as a political party cannot agree a uniform position on an issue like abortion, then such a provision does not belong in the Constitution. By voting to retain the 8th Amendment, the Fianna Fáil Ard Fheis has only demonstrated why it should be repealed.

Image credit: http://bit.ly/2gq4BL9




The UK’s Brexit Proposals on the Irish Border: No more than a Negotiation Tactic


The UK has finally published its negotiating position on the Irish border. The 30 page long document is, unsurprisingly, high on lofty principle but low on concrete detail. I do not wish to go through the proposals step by step as I don’t think there is need to. Others have done a much better job than I could have. In particular, I don’t want to dwell on the importance of free movement of people between the North and South of Ireland, or the importance for residents of the North to identify solely as Irish if they wish. I could not do justice to these fundamental points here.  Rather, I want to make 2 broad points.

  1. Paragraph 33 and Usurping Ireland’s Negotiating Strength

From my reading of the document, the key sentence is contained at paragraph 33:

“Wider questions about the UK’s future operation of its whole border and immigration controls for EEA nationals (other than Irish nationals) can only be addressed as part of the future relationship between the UK and the EU, and further highlights the need to move to this next phase of negotiations as quickly as possible.”

In April 2017, outgoing Taoiseach Enda Kenny heralded as a great victory the inclusion of the status of the Irish border as one of the four key issues to be decided in the Brexit negotiations prior to negotiations commencing on the UK’s future relation with the EU. What Paragraph 33 tells is us that the UK is seeking to circumvent this.

The Brexit negotiations consist of 2 strands: Firstly, the terms of divorce between the EU and the UK; and secondly, the terms of the UK’s future relationship with the EU. Since the UK voted to leave the EU, the British Government has made no secret of its desire to expedite negotiations to the second stage. Far from being a comprehensive plan outlining how the future border on the island of Ireland will work, the British Government’s proposals are a negotiating tactic to achieve exactly this.

  1. The UK does not understand the importance of the Customs Union to Ireland

The UK’s proposals essentially envisage a lax, “sure it’ll be grand” attitude to customs between the North and South of Ireland. While this may solve the issue of avoiding any ostensible border controls, what is concerning about the UK’s proposals is that they demonstrate a clear lack of understanding of Ireland’s position and the importance of the customs union.

In very crude terms, for the UK, Brexit is about keeping foreign people out; for the EU and, particularly, Ireland, Brexit is about keeping foreign goods out. Ireland does not have vast natural resources to draw upon. Rather, our key resource is agriculture. “Brand Ireland” (for want of a better, less cringe-worthy term) therefore is all about the quality of the goods produced— think green fields and healthy, happy cows and sheep.

 It is for this reason that Ireland tends to react in a rather disproportionate fashion to any crisis that may undermine this image. Hence, the Irish response to the pork-dioxin crisis in 2008 was to remove all pork products from shelves, regardless of the minimal risk involved. Similarly, the horse-meat scandal of 2013 came to light in Ireland, not because of the particularly acute problem Ireland had with horse-meat but because transparency was considered so important to ‘brand Ireland’. Covering up the issue, it was calculated, would have done more harm than good. By ripping the band-aid off quickly and cleanly, Ireland sought to re-assure other countries that any potential future issues with the quality of the products it produces would be dealt with in a similarly transparent manner. A final example can be seen from how Ireland responded to the Foot and Mouth crisis in 2001, with over 50,000 animals on the Cooley Peninsula in County Louth culled and disinfecting checkpoints set up across the county. I can still remember the hope of my school in Dundalk potentially being closed to prevent further spread but, alas, the other contingency measures were more than sufficient and only 2 cases on the island— one in Meigh in County Armagh and one in Jenkinstown County Louth—were confirmed.

It is only by understanding this context that one can see why the UK’s streamlined border approach will face significant hurdles on the island of Ireland and why Ireland will be reluctant to accept this so-called solution. The Irish border will be a weak link for goods not reaching the EU’s exacting quality standards to enter into the Irish supply chain. It is a weak link that Ireland cannot afford. Thus, while British people may be horrified at the thought of eating chlorine-washed chicken, if such produce (or similar) were to end up in Irish goods, the impact this could have on the economy and Ireland’s reputation could be disastrous, similar to the scenarios mentioned above.

Irish people may have a reputation in the UK of a ‘nudge-nudge, wink wink’ attitude to life, seeking to take shortcuts wherever possible. Fawlty Towers’ Mr O’Reilly springs to mind in this regard. But on this issue of customs, Ireland cannot afford to and the UK does not seem to understand this.


Customs checks on mainland Britain rather than on the island of Ireland or ‘special status’ for Northern Ireland within the EU would solve these issues. Both of these proposals have, however, been rejected by the DUP. We are therefore no closer to a solution to the Irish border and rather than being re-assured, I’m more concerned than ever.

Image credit Duncan Hull: http://bit.ly/2wb2kwK


RightsInfo and Property Rights as Human Rights: A Response


A recent post by Adam Wagner of human rights advocacy group RightsInfo.org argued that the Conservative Party should get behind the Human Rights Act (HRA).  The article is an express endorsement of a piece in The Times (£) by Daniel Finkelstein, a Conservative peer and associate editor of The Times who calls for Tories to back the HRA because ‘if they don’t, then they risk a Jeremy Corbyn government unchecked by the protection of basic civil and political rights.’ The specific human rights in question are property rights, with Wagner arguing that ‘Private property rights are a central part of human rights protections.’ Wagner focuses on the Grenfell disaster, highlighting Corbyn’s suggestion that private property should be seized in order to re-house the displaced residents of the fated tower-block. A particularly lazy comparison with Venezuela’s Hugo Chavez is also made before the piece ultimately expresses approval with Finkelstein’s conception of human rights as securing individual liberty and as ‘bulwarks against state excesses’.

 It is certainly true that the right to private property is protected by many human rights documents. However, the inclusion of such rights and the philosophy that underpins them have long been subject to sustained critique—namely, a liberalism which evolved from a bourgeois class as a means to protect their new found wealth from the classes below and claim power for themselves from the aristocracies above. This liberalism places great emphasis on individual freedom but often at the expense of equality, ignoring the power structures at play in society that perpetuate these inequalities; power structures that were exposed by the devastation of the Grenfell disaster. By harkening back to an over-emphasis on individual freedom to defend human rights, RightsInfo may do more harm than good to the broader human rights project in the UK.

 Human Rights and Private Property

This link between bourgeois liberalism and human rights has long been highlighted by the left. Bills of rights have, for example, been opposed by many on the left precisely because of their role in protecting private property. These arguments contend that bills of rights such as the HRA stifle movements for popular change— an idea embraced by Wagner in light of the current ‘populist moment’. They re-enforce the status quo by legalising political disputes and put the rights of people in the hands of elitist judges who, by their very nature, are drawn from the wealthier classes and so will be pre-disposed towards the protection of private property.

 A classic example of courts acting as a barrier to progressive change is Roberts v Hopwood [1925] AC 578 where the House of Lords held that the decision of Poplar Borough Council to pay its lowest grade of staff the same rate, regardless of whether they were male or female, was unlawful. In the House of Lords, Lord Atkinson stated that:

 The council would, in my view, fail in their duty if, in administering funds which did not belong to their members alone… allowed themselves to be guided in preference by some eccentric principles of socialistic philanthropy, or by a feminist ambition to secure the equality of the sexes in the matter of wages in the world of labour.

 Roberts v Hopwood further demonstrates that the HRA is not needed to protect property rights in the UK anyway as the common law that existed before the HRA was an ample barrier to ‘eccentric principles of socialistic philanthropy’ or ‘feminist ambition’. Indeed, some of the worst decisions under the HRA can also be traced back to this deferential judicial respect towards private property and a version of liberalism closely linked to market capitalism. In YL v Birmingham City Council, for example, the majority of the House of Lords held that a private care home under contract with a local authority was not exercising ‘functions of a public nature’ meaning that the care home residents could not avail of the HRA to vindicate their rights against the care home’s operators.

 Despite these political disagreements as to the utility of bills of rights, however, many initial critics of the judicial protection of human rights have subsequently voiced their support for the HRA. Conor Gearty, for example, has lauded the HRA’s role in curbing the excesses of extreme counter-terrorist powers and vindicating the rights of vulnerable individuals.

 Beyond Bourgeois Liberalism

Human rights theory has moved on from this liberal bourgeois foundation to deeper, more coherent normative arguments for rights; for example, the concept of dignity. These arguments reject the classic divide between ‘civil and political’ and socio-economic rights to allow for a more harmonious and consistent vindication of both. Moreover, such arguments are resistant to the more extreme versions of liberalism such as neo-liberalism and libertarianism that take this foundation of individual freedom to the extreme, by labelling any state action or law which an individual does not consent to as ‘aggression’. Such individualism and reliance on the protection of private property have been used as a sledgehammer against the welfare state and workers’ rights in recent decades; all causes that human rights should be fighting against. For example, a search on RightsInfo for “Trade Union Act 2016”— legislation that made radical and profound changes to trade union laws, impacting negatively on workers’ right to strike— returns zero results. Human Rights therefore should be about much more than individual freedom and using human rights as an argument against rehousing Grenfell residents doesn’t reflect this idea of dignity.


By appealing to Conservatives to back human rights in order to protect private property and halt the rise of the left, these arguments risk doing more harm than good. They harken back to a bourgeois justification of rights resulting in a very narrow understanding of what rights are and how rights are vindicated. Moreover, they embrace arguments regarding the role of bills of rights as subjugators of, rather than protectors of the vulnerable. Using Grenfell as a warning of why protections for private property are needed is particularly distasteful in light of the sheer magnitude of the disaster. It also stands out of align with the other work that RightsInfo has done regarding the human rights implications of Grenfell and the inquiry into what happened.

 RightsInfo has done some excellent work in highlighting the role that human rights play for everybody, explaining this in a manner that is innovative, informative and easy to understand. RightsInfo has also mounted an excellent campaign against the cuts to legal aid that have been so damaging to individuals seeking to vindicate their rights.  An key message therefore that RightsInfo stresses is the importance of empowering people through human rights. This message, however, is undermined by highlighting how human rights can be used to thwart change in the name of conservative values like the protection of private property.


Image Credit: ChiralJon

Source: http://bit.ly/2ubqeEw