[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Paul Daly reviews Oran Doyle’s book on The Constitution of Ireland: A Contextual Analysis (Hart Publishing, Oxford, 2018)
—Paul Daly, University Research Chair in Administrative Law & Governance, University of Ottawa
Oran Doyle’s contribution to Hart’s Constitutional Systems of the World series should be read by anyone with an interest in Irish constitutional law and also by comparative constitutional lawyers.
From a domestic perspective, Doyle paints a vivid portrait of the Irish Constitution, a text which came into force in 1937 and has survived – intact, for the most part – to the present day, comfortably outliving most attempts to codify in a single document the basic rules, principles and standards relating to the structure of the state and its relationship to the people within it. Doyle views the Irish Constitution as a “master-text document” which “contains most of the constitutional laws”, but argues that a focus on text would be erroneous, for “it is supplemented and informed by other constitutional laws and practices” (19). Doyle’s “central argument” is that notwithstanding the tripartite separation of powers between executive, legislative and judicial branches envisaged by Article 6, “the constitutional structure is built on a bipartite separation of power between the Government and the courts” (19), albeit that the requirement to secure popular support in a referendum for formal constitutional change serves as a “significant check” on the power of the Government (20).
Moreover, there has been a large degree of “informal constitutional change: without amending the master-text constitution in any way, there is an alteration to the way in which the norms in the master-text constitution operate” (193). Five significant developments since 1937 have altered “the distribution of constitutional power” (20), even though, on the whole, there has been “very little deliberate change through the formal amendment process” (191). First, Ireland’s accession to the European Union in 1973. Second, “changing judicial attitudes” to the judicial role, inasmuch as this involves constraining the Government “primarily through [the] interpretation of constitutional rights, but also through the imposition of legal constraints on public administration” (20). Third, the emergence of statutory agencies and “the development of accountability bodies to check those institutions”: “the Government’s control of statutory agencies is more indirect, somewhat reducing the Government’s domination of the constitutional order” (21). Fourth, the Office of President has, in recent decades “developed a much more significant informal role…as a leader of civic society” (21). Fifth, and most recent, the phenomenon of a hung Parliament: Ireland has been no stranger to coalition government (and “coalitions experience internal contestation that somewhat checks the power of the Government to act” (47)), but the 2016 election “left the two main political parties…with almost equal numbers of seats” in Dáil Éireann (the elected lower house of the Oireachtas (Parliament) “both considerably short of an overall majority and without any viable coalition partners” (21), resulting in a significant change to the operation of the Constitution, “moving it much closer to the tripartite separation of powers presented by Article 6” (51): “Without any new laws, let alone a formal amendment of the Constitution, a novel distribution of party-political support at a general election produced a fundamental change in the way in which the Constitution operates” (62).
Comparative constitutional lawyers will appreciate Doyle’s emphasis on the importance of socio-institutional dynamics in understanding how the Irish Constitution operates and, in particular, how the bipartite separation has retained legitimacy despite the risk of government hegemony. I will outline four aspects of Doyle’s account which may be of general interest.
First, since the decision of the Supreme Court in the Crotty case in 1987, Ireland has held a referendum on every European Union treaty. An outsider could be forgiven for forming the impression that this is a formal constitutional requirement. In fact, the “cautious approach” arises from some of the tensions in the Crotty judgment, which made it difficult to foresee how a court would view an attempt to ratify a new treaty without a referendum (38). To take another example, whilst members of the Dáil are nominally the representatives of the electorate, there are “large degrees of party cohesion and discipline”, such that parliamentarians’ “primary role is as intermediaries between people and government rather than active shapers of that government” (61); indeed, they “probably have greater input into the legislative process through the informal network of their own parliamentary party meeting than through formal contribution to Dáil debates” (86). Added to this must be the trend towards coalition governments and the “new political dispensation” (22) created by a hung Dáil, such that:
…although the Government remains by far the most powerful constitutional actor, its power is diminished by inevitable internal differences and rivalries. The policy preferences of one group are countered by the preferences of another group. The political power of one actor is undermined by the political power of a rival. Although the Government must act as a collective authority, its power is undermined by the simple reality that it is not a unitary actor (111).
Second, judicial willingness to interpret the fundamental rights provisions of the 1937 Constitution as imposing limitations on legislative or executive action has waxed and waned. For one thing, the courts have “move[d] away from a natural law approach” to the provisions in question (163), and their language has changed “as judges come to reflect the increasingly post-Catholic character of the society from which they are drawn” (160). More generally, a long period of “relatively little engagement with the constitutional text” (163) was followed by one in which the “unenumerated rights doctrine functioned to confer an almost unlimited discretion on judges to recognise new constitutional rights”, such as bodily integrity and marital privacy (165), which in turn was allowed to “wither” (206) and was supplanted by a “move from judicial activism to non-intervention” (166), “render[ing] the Constitution less determinative of public policy, removing a constraint on Government action and reducing judicial power for the future” (170).
Third, given the centrality of the referendum mechanism, popular attitudes to political institutions are also important. The People’s power to “reject referendum proposals…has a wider political effect”, as it “discourages the Government of the day from considering constitutional change” (211); the People have been “particularly sceptical” (199) of reform proposals which envisaged “the further empowerment of the Government, through the diminution of checks and balances in the constitutional system” (202).
Fourth, several other centripetal and centrifugal forces are influential. One is the Government’s legal advisor, the Attorney General. An unelected appointee who is typically a barrister of high standing with close ties to a political party, the Attorney General is a significant figure in Irish political and legal life who “exercises considerable influence over the legislative process” (93): as the constitutional text stipulates that the Oireachtas cannot adopt legislation repugnant to the Constitution, the Attorney General is “tantamount to a veto-player in the enactment of legislation” (94). Similarly, the Department of Finance “is the most power of all Government departments” and exercises considerable control over state policy (112). By contrast, administrative agencies, as “semi-detached organs of government” exert force in the opposite direction, as they “are subject to general direction and control by the Government but are largely independent in their day-to-day decision-making, occasionally but rarely leading them into a position of conflict with the Government” (104). More generally, although there are not “competing centres of power that must collaborate with one another in order to implement political projects”, there are nonetheless “institutions and processes through which the Government can be held to account and its decisions contested” (121), such as tribunals of inquiry, Oireachtas committees, Dáil debates, (in respect of finance) the Comptroller and Auditor General, a set of public service Ombuds and “several statutory bodies charged with protecting individual rights” (138).
Doyle has thus provided a context-rich account of the Irish Constitution, one which emphasises how merely consulting the text of the document will not capture the true nature of Ireland’s constitutional arrangements. There are lessons there for Irish lawyers, of course, but comparativists around the world will find there is much to learn from Doyle’s book.
Suggested Citation: Paul Daly, Review of Oran Doyle’s “The Constitution of Ireland: A Contextual Analysis”, Int’l J. Const. L. Blog, Oct. 23, 2019, at: http://www.iconnectblog.com/2019/10/book-review:-paul-daly-on-oran-doyle’s-“the-constitution-of-ireland:-a-contextual-analysis”