—Seána Glennon, Postdoctoral Fellow at University of Ottawa’s Faculty of Law
In the past decade, the Irish people have voted in favour of a range of liberalising constitutional amendments: from marriage equality to abortion rights to removing the offence of blasphemy from the Constitution. These changes have coincided with the incorporation of citizen deliberation into the democratic process, from the 2012 Convention on the Constitution, to the series of citizens’ assemblies from 2016 onwards. Onlookers will likely be surprised, therefore, at the decisive rejection this month of two apparently progressive proposals to amend the Constitution which were also preceded by a citizens’ assembly: the first, to expand constitutional protection of families beyond those based on marriage (the family amendment), and the second, to remove a constitutional provision referring to the role of women in the home and replace it with a gender neutral provision recognising the contribution of carers to the common good (the care amendment). Why was there such a disconnect between the citizens’ assembly’s recommendations and the referendum outcomes on this occasion, and what does this tell us about the continued use of citizen deliberation in the democratic process?
The Irish abortion reform has been widely lauded as an instance where a citizens’ assembly played a significant role in a constitutional amendment process. That assembly voted by a majority of 64% in favour of abortion without restriction in Ireland, and the public in the subsequent referendum voted “yes” to a constitutional amendment to pave the way for this recommendation by 66% – a striking correlation. This month’s failed referendums were also preceded by citizen deliberation, in the form of the Citizens’ Assembly on Gender Equality – yet they failed spectacularly, with majorities of 67% and 73% voting against the family and care amendments, respectively.
There are important differences between the manner in which the amendments were approached in the most recent case, as compared with the abortion case. On both occasions, the citizens’ assemblies were connected with parliament through a form of “designed coupling” – whereby the citizens’ assembly’s recommendations were passed to an all-party parliamentary committee for consideration, which in turn reported to government. In the abortion case, however, the citizens’ assembly had one specific topic to consider, and its deliberations came at a time of increasing demand for political action. It made wide-ranging recommendations to amend the Constitution to allow for reform and produced a detailed proposed legislative framework on abortion. The parliamentary committee broadly endorsed these proposals, and the government put this framework to the people with an undertaking that it would legislate in this manner for abortion access if the referendum were to pass. The approach to the family and care referendums was different.
The Citizens’ Assembly on Gender Equality deliberated on a wide spectrum of issues touching on gender – not only the constitutional definition of the family and the ‘woman in the home’ provision, but also a raft of other issues, from the representation of women in politics to domestic violence. It made 45 recommendations, including the deletion of the ‘woman in the home’ provision and its replacement with gender neutral language that would oblige the State to take reasonable measures to support care not only within the home but the wider community. The parliamentary committee established in the wake of the Assembly took its lead from the Assembly’s position on the need for constitutional change and also recommended strong replacement wording, that the State “shall… take reasonable measures to support care within and outside the home and Family.”
This was not the route chosen by the government, which instead proposed a more diluted form of replacement provision, that would require the State only to “strive to support” the provision of care – and at that, only care within families. With regard to the family amendment, the referendum put to the people was to add in explicit constitutional protection for families both based on marriage and those based on “other durable relationships”. In neither case did the government present a worked-out proposal on what the amendments would translate into from a legal and policy perspective – how carers would be additionally supported, or the meaning of “other durable relationships”.
It is difficult – perhaps impossible – to attribute a referendum outcome to one particular cause. However, a crucial difference between the experience with the earlier referendums and the most recent, arguably, is that in the case of marriage equality and abortion, the referendums focused on one discreet issue and came near the end of the reform process, after detailed processes of deliberation had taken place. They tapped into an existing consensus for constitutional change, and were held after a worked-out proposal for reform had been formulated and put into the public arena. In the abortion case, the options – the status quo of a near-blanket ban on abortion, or introducing a new framework of unrestricted access to abortion within a specific gestational time limit – were clear.
The impact of the citizens’ assembly in the abortion referendum, arguably, stemmed from an existing public consensus to liberalise the law, combined with a deliberative citizen process that produced a concrete framework for reform which was in turn effectively connected to empowered decision-makers through the design of the process. The referendum in that case was the capstone of a process of reform that combined deliberative and participatory mechanisms incorporating a citizens’ assembly and a referendum.
This was not the case with the most recent referendums. Unlike the marriage or abortion contexts, it was arguably unclear what societal problem the family and care amendments would address. The proposed change in the care context in particular diverged from what the Citizens’ Assembly had recommended, appearing to be drafted as a weaker provision designed to avoid imposing an enforceable obligation on the State. Beyond that, no concrete policy for change in the care context was put forward as an alternative to the status quo. Furthermore, unlike in the abortion or marriage equality contexts, the government was not clearly prevented from meaningfully providing protection for carers or families in their diverse forms by the existing constitutional text.
The experience in the abortion case shows the potential for citizens’ assemblies to meaningfully impact a legal change – but they cannot do so in isolation. Critical factors for the ability of citizens’ assemblies to have an impact include a pre-existing public consensus for change, combined with a robust deliberative process, effectively connected to the political class, that lays the groundwork for the reform so that the public can see clearly what the change will mean in practice. These factors should be carefully considered in future efforts to integrate citizen deliberation into the constitutional change process in Ireland, and elsewhere.
Suggested citation: Seána Glennon, The future for citizens’ assemblies in Ireland, Int’l J. Const. L. Blog, Apr. 3, 2024, at: https://www.iconnectblog.com/strongthe-future-for-citizens-assemblies-in-ireland-strong/
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