Wednesday, 31 March 1982
Dáil Eireann Debate
The Taoiseach: I do not propose a general review of the Constitution at present. Individual constitutional aspects will, however, be considered by the Government as appropriate and necessary from time to time.
Mr. M. O'Leary: Would the Taoiseach agree that, already, certain difficulties have arisen in regard to legislation being passed in this House, for example, the rent question which is the subject of legislation at present? Difficulties have arisen with regard to legislation from clauses in the Constitution, such as the clauses in Article 43. Does the Taoiseach accept that there is need to amend the Constitution in many vital areas concerning  people living in the Republic? The Taoiseach's predecessor, Seán Lemass, accepted the need for this a long time ago. Would the Taoiseach accept that the case is well proved in certain areas, such as legislation dealing with the anomalies concerning tenants who believed themselves to be living in rent-controlled dwellings?
The Taoiseach: Changing the Constitution is fairly fundamental and not to be lightly embarked on. I think the Deputy would agree that, in areas like this, very often when one contemplates change, one has to be sure that one is not doing more harm than good. It is very important that if one is going to change the Constitution, one improves rather than disimproves the situation. I would hope that on the matter to which the Deputy referred, the legislation dealing with rent restriction, the Bill we will be bringing before the House will meet the constitutional requirements. In fact, I have always felt that there should not be any great difficulty in framing legislation which would protect the rights and the interests of tenants while, at the same time, meet the obligations of the Constitution, particularly when one takes into account the social principles enshrined in the Constitution. A reasonably broad interpretation of our Constitution should enable us to meet any particular exigencies which would arise in this area.
Mr. B. Desmond: Does the Taoiseach still see no merit in an all-party committee of this House being given an opportunity to review the Constitution with a view to bringing a report before this House, bearing in mind that many Bills have been referred to the Supreme Court either by the President or by individual citizens in recent years? This practice is increasing with ever-greater momentum and therefore, there is an urgent need for a constitutional review, not just on an ad hoc basis, as we go along. Does he still see no merit in that proposition?
The Taoiseach: The administration of which the Deputy was a very important member did not have an all-party committee  review of the Constitution. They opted for a review by a special committee which was, in fact, a committee of lawyers. The question of an all-party Oireachtas review of the Constitution is entirely different. It would be a major undertaking for politicians from different sides of the House to review the Constitution, and it would require a great deal of thought. The Deputy will remember that the last such constitutional review did not achieve very much.
Dr. FitzGerald: It is very encouraging to hear that. In the light of what has been said, would the Taoiseach leave open this question, and be willing to discuss further the possibility of a constitutional review?
Mr. Fitzpatrick: (Cavan-Monaghan): Does the Taoiseach agree that certain proposals to amend the law, some of which are very necessary, seem to be running into difficulties with the Constitution quite frequently, such as bail which I mentioned here previously, the implementation of the Kenny Report and the Rent Restrictions Act? Does the Taoiseach not think it is becoming more apparent that a general review of the Constitution is necessary to modernise it?
The Taoiseach: I should not like people to lull themselves into a false sense of security by thinking a review of the Constitution would solve all our problems in regard to legislation in the future. If we are to have a written Constitution, the  process whereby certain legislation finds itself in conflict with that written Constititution is inevitable. Perhaps what is inherent in what some Deputies are suggesting is that we should not have a written Constitution at all, and that we should let Parliament be supreme. That is another major step which would require very careful consideration.
Mr. Fitzpatrick: (Cavan-Monaghan): I should like to go back briefly to one particular point. Surely the Taoiseach agrees that the present position regarding bail in criminal cases is quite unsatisfactory, and that the law should be changed and, if necessary, the Constitution, in order to give a wider discretion to the courts in regard to bail in criminal cases?
The Taoiseach: The Deputy and I had this argument before. It is relatively simple for any Deputy to pick some particular point and say we should change the Constitution to enable this or that to happen. The Constitution is the fundamental document adopted by the people. To change it in a material respect would be a very important and fundamental matter. I am not sure that to keep rushing to the people in referenda every time we feel the Constitution is a bit inconvenient is the best way to conduct our affairs. There is a lot to be said for having a fundamental law, namely the Constitution, which is fairly permanent and in regard to which all our citizens know where they stand. It is possible to do things in haste which might have unforseen repercussions. I merely throw out these thoughts to indicate that it is not simply a matter of making life easy for Parliament for ever more by making changes in the Constitution every time we run into some difficulty.
Mr. M. O'Leary: No-one is suggesting that for trivial reasons we should rush into changing the fundamental law. No-one  is suggesting that the certainty of law should be displaced. There is no reference in the social clauses of the Constitution to the changed status of women in Irish society, and the equality between men and women which is now accepted on all sides. Would the Taoiseach agree that too often when it came to dealing with the Constitution, the House dealt with its less important aspects? This House has shown an inordinate interest in the method of election to the House. Would the Taoiseach agree that proportional representation has pre-occupied the House in relation to consideration of the Constitution. Would the Taoiseach agree that when we have reached the stage at which social legislation required in the House encounters difficulties in the courts — because of their interpretation of certain constitutional clauses — the case has already been made in the daily lives of people that the Constitution is in need of review? Is it not a fact also that the Taoiseach's predecessor accepted the need for this a long time ago? This is not to displace the certainty of law but there is a need now in the Republic to amend the Constitution in certain vital respects. Its effect on Northern Ireland is peripheral to this. Would the Taoiseach agree there is need now in the Republic?
The Taoiseach: I accept the principle that if there is need for the sake of our own affairs we should make those changes in relation to our own affairs. But I feel that there is in this House a somewhat over-simplistic view of the question of change in the Constitution. It is assumed that we can change the Constitution in such a way that will overcome difficulties. That is not so. In any particular instance the framing of a particular question which will have to be put to the people would require very careful thought. If we are to take out some particular Article of the present Constitution we have no certain guarantee that the Article we put in in its place will ultimately result in an improvement in the situation.
Miss Flaherty: Arising out of the Taoiseach's replies in general I should like to  ask him which of the two options he has presented to us he would favour as his initial reply would present the option of a static society and the other would present the option that he himself described as unattractive, which was rushing back to the electorate at every moment with referenda. I ask this particularly in the context of the area of child care which encompasses two major areas, the area of illegitimacy and the area of adoption of children who are abandoned in homes with no entitlement to a family life, destined to that by our Constitution. Is the Taoiseach telling us that we must either accept the static view of society with no change, or are we going to accept as a principle of operation this constant holding of referenda? I would prefer the second option to the first rather than constantly going back to the country with referenda on these very important issues.
The Taoiseach: I am afraid I have not grasped the Deputy's points precisely. My own view is that with care and consideration there are very few things in the area of social reform in particular that we cannot do by legislation without necessarily changing the Constitution.
Mr. Cluskey: Did I understand the Taoiseach correctly when replying to an earlier supplementary by Deputy FitzGerald, when he indicated, to me at least, the he was prepared to meet the leaders of the other political parities in the Dáil with a view to discussing possible further amendments to the Constitution? If I am correct in that — that he has already agreed to do that this afternoon — am I correct in thinking that those discussions would take place before the referendum he has already indicated the Government intend to hold?
The Taoiseach: I do not think the Deputy is summing up my position exactly in response to supplementaries from Deputy FitzGerald. But what I am saying — and I think this was the manner in which the questions were put to me — is that my mind is not closed in regard to a discussion on a review of the Constitution, a discussion with the leaders of  the other parties about a possible review of the Constitution.
Mr. Deasy: This Constitution seems to be causing more problems than it is solving. I should like to ask the Taoiseach is it really necessary to have a Constitution? Should we be having a referendum to abolish the Constitution?
Dr. FitzGerald: I thought there was agreement, that the Taoiseach's mind was open, and we could have discussions. I would have proposed to have been in touch with the Taoiseach in the next few weeks on that subject. I take it that such an approach will be received if I do approach the Taoiseach? I am going to assume that to be the case.
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