—Eoin Carolan, University College Dublin
Last weekend, Ireland’s Citizens’ Assembly issued its recommendations on the first of the topics which the Houses of the Oireachtas (Irish parliament) asked it to consider: the Eighth Amendment to the Constitution.
This amendment, which was approved in a referendum in 1983, inserted a new Article 40. 3. 3 into the Constitution. This stated that:
The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.
While the language of the Article is general, it is usually perceived as concerned with abortion law and policy. Its purpose was described by one Supreme Court judge as to “prevent the introduction of abortion either by legislation by the Oireachtas or by judicial decision”. (Roche v Roche  2 IR 321, per Hardiman J).
The recommendations of the majority of members – slightly complex and seen by commentators as a surprise – were to remove the provisions of the Constitution that currently regulate the law on abortion; to replace them with a specific provision confirming the entitlement of the Oireachtas to legislate; and to introduce legislation which would allow termination of a pregnancy for any reason up to 12 weeks gestation; for certain specified reasons up to 22 weeks gestation; and for a limited number of additional reasons with no restriction as to gestational age (full – and less simplified – results can be seen here).
There has been an active campaign around the ‘repeal’ of the Eighth Amendment in the last few years so that the decision of the majority in its second ballot to recommend replacement rather than repeal generated some confusion (and criticism).
This was partly because of the sequential nature of the voting process adopted. Seen in light of the majority’s later recommendations for a liberalisation of Ireland’s law on abortion, however, it seems clear that the intention of members in recommending a specific provision was to limit the potential for ambiguity about the legislative capacity of the Oireachtas in this area.
While there is a general argument that abortion law and policy is not an appropriate issue for constitutional entrenchment, the majority’s recommendation to retain a specific reference has some logic in the Irish constitutional context. There are two main reasons for this.
The first is that the effect of any ‘repeal’ is more difficult to assess when there is no consensus on what the constitutional position was before the Amendment was first introduced. It was never clear prior to 1983 whether, or to what extent, the Constitution provided protection for the unborn. Nor, however, was the constitutional jurisprudence a blank canvas. Several judges had expressed the view that the Constitution did recognise a right to life for the unborn. In 1980 Walsh J. expressed the view that “a child … has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth”. On one view, the Eighth Amendment “did not … bring about any fundamental change in our law” (AG v X  1 IR 1, per O’Flaherty J). This suggested that laws enabling abortion would have been constitutionally suspect prior to 1983.
The second is that there are also grounds for debate about whether repealing the Eight Amendment would return the law to its pre-1983 state (whatever that was). It has been argued that a court considering the constitution in a post-repeal scenario would have to take account of the fact that the People had consciously chosen to remove Article 40. 3. 3 from the Constitution. Separately, there have been constitutional developments since 1983 which could impact on any analysis of the constitutional position. These might include the recognition since 1983 of a constitutional right to privacy; and the insertion of a specific provision on the rights of the child by referendum in 2012 which was recently ruled by the High Court to apply to the unborn. This decision is currently under appeal.
It is quite conceivable, therefore, that the repeal of Article 40. 3. 3 would be followed by lengthy litigation in which the Oireachtas’ capacity to legislate at all (in either direction) might be subject to challenge. Depending on the wording of any amendment, issues may still arise concerning the scope and limits of that legislative power. In recommending replacement rather than repeal, however, the majority of the Assembly appear to be signalling a desire for a clear statement in the constitutional text that these are matters to be dealt with primarily by the Oireachtas rather than the courts.
What this also signals is a close attention on the part of Assembly members to the legal complexities and nuances of the issues before them. That should not be a surprise: experiments with this kind of participatory process have long shown that individuals are able and willing to engage enthusiastically and at a sophisticated level with issues commonly reserved for ‘experts’. The praise members have received for their seriousness and care is clearly deserved (even if this kind of praise can sometimes border on the patronising).
Nonetheless (and at the risk of an argument ad nauseum), there is a possibility that the positive experiences of participants in these processes (citizens, experts and observors) can foster an uncritical enthusiasm that increases the danger of manipulation by elites. ‘Mini-publics’, ‘citizen juries’ and other exercises in participatory decision-making are often optimistically presented in the academic literature as bottom-up exercises in deliberative democracy. Discussions centre on a model in which a representative body of ordinary citizens engage in reasoned deliberation, guided by impartial experts, and by reference to carefully-screened objective information.
The reality is far messier and more complicated than this ideal-type suggests. Members may be statistically representative but, unless subject to the kind of legal obligations to participate that apply to juries, are likely to be those with the time, interest, and self-confidence to participate. Discussions may be affected by dominant personalities, by groupthink, by how they are managed by organisers – or, as Cass Sunstein argues – even by the fact that they take place in a group setting. Sunstein’s theory of polarisation is almost the precise opposite of the reasoned consensus that often seems to be assumed to emerge. Experts may play an outsized or privileged role in framing or shaping discussions, as can decisions made by organisers about sequencing, agenda-setting, the content of materials, and so on.
Lessons had clearly been learned from Ireland’s previous effort at deliberative democracy, the Constitutional Convention. There has been far more transparency around procedures at the Citizens’ Assembly. There have also been clear opportunities for input from members of the assembly as a whole into how the process is managed. The Chair and secretariat have worked hard to provide the members with information on the issues requested by them rather than simply deciding what information they should receive.
No process is perfect, however, and decisions about deliberative procedures necessarily involve trade-offs between different goals. For example, the Assembly seemed far more rigorous than its predecessor in ensuring that the material presented to the members met a certain level of legal accuracy. That also, however, arguably made the materials provided and discussions that followed more legalistic than might otherwise have been the case.
More generally, the Assembly also also provided reminders of the gaps between experience and the academic ideal-type. One novel question for deliberative scholars is whether some consideration should be given to the potential impact of social media on the process. Twitter, for example, hosted extensive discussion of the Assembly as it was taking place. It was fairly clear that some members at least were actively following this commentary and, potentially, influenced by it. There was certainly overlap between issues raised on Twitter and by members during the discussions. This potential for interaction between citizen assemblies and social media commentary does challenge some of the academic assumptions common in the literature that deliberation occurs in a ‘closed’ internal process; or takes account, jury-like, of only the material presented during the process.
More substantively, there were clear signs of confusion (internally and externally) after the second vote on whether to repeal or replace Article 40. 3. 3. There were also indications of a heated atmosphere at times with allegations of lobbying and undue influence made by some members; and the chair in her concluding remarks on day 1 asking members to “regain their collegiality”.
So what happens next? This is the most important question for the Assembly itself as well as for any broader assessment of the value of deliberative ‘mini-publics’. The short answer is that the Assembly will now produce a report to go with its recommendations. These will then be submitted to the Oireachtas, before being considered by a specially-established parliamentary committee. The report of that committee will then be considered by the Oireachtas as a whole. If the decision is made to propose an amendment to the Constitution, a referendum will be held on the basis of a simple majority vote. At present, the suggestion is that any referendum will take place at some stage in 2018.
The more difficult question is to what extent the Citizens’ Assembly has or may influence that process. Ministers have for some time expressed the view that a referendum was likely to be held at some stage “in the coming years”. The suspicion was that the Citizens’ Assembly was a convenient way for a minority government with a lame duck leader to delay a controversial abortion referendum to a point where it may no longer be their concern.
Certainly, one consequence of the Assembly process has been delay. However, the fact that the Assembly’s recommendations are more liberal than most politicians seem to have expected may mean that a referendum has moved from likely to inevitable.
A more decisive indicator of the Assembly’s long-term effects may be the content of any proposed amendment. It also seems fairly clear that the recommendations are more liberal than what a majority of TDs would have proposed by themselves. If the proposal reflects the recommendations made, that would be a fairly clearly signal of Assembly influence. However, there are already early signs of political hesitation on this.
This is probably in keeping with the experience of other experiments of this type. While it has been suggested the endorsement of the Constitutional Convention may have influenced Ireland’s marriage equality referendum, the fact that that the Government rejected or ignored the vast majority of its recommendations may be a better indication of the real-world impact of the process.
Of course, the other potential effect is on public opinion more broadly. This is more difficult to quantify. While the Assembly has certainly been accessible and has attracted close attention from interested parties, coverage of it in the main Irish media organisations (with some exceptions) has largely been dutiful rather than detailed. It seems doubtful that the majority of people, for example, have paid close attention to the complexities of the issues being debated by members. There may be more general awareness of the fact of the Assembly’s recommendations. However, as the double defeat of the electoral proposals produced by British Columbia’s Citizen Assembly shows, the fact that a proposal emerges from a deliberative body – even one routinely celebrated in the academic literature – does not of itself persuade voters.
In the long-term, whether the Assembly may have any effect on voters is likely to depend on whether, and in what way, it features in any eventual referendum campaign. In this regard, it is notable that advocates are already constructing (or adjusting) narratives around the assembly: the representative vote of the informed ordinary citizen on the one hand; the result of an unrepresentative and flawed process on the other.
Whether these narratives resonate with voters enough for campaign groups to persist with them may be the ultimate determinant of the Assembly’s long-term influence.
Suggested Citation: Eoin Carolan, Considering the First Phase of Ireland’s Citizen Assembly, Int’l J. Const. L. Blog, Apr. 29, 2017, at: http://www.iconnectblog.com/2017/04/considering-the-first-phase-of-irelands-citizen-assembly
Author’s note: It should be noted that I participated in one session of the Assembly during this phase. This discussion is based on material from general sources rather than any direct experience however. The views expressed are also (obviously) purely personal.