New Irish Constitution would be required for a United Ireland, professor says
Professor David Kenny, Professor in Law and Fellow and Head of the Law School at Trinity, said former Taoiseach Leo Varadkar previously suggested that unification would require a new Constitution.
The Professor said he could not see 'a way around that'.
'I wrote a paper hypothesising that you could radically change the constitution in so many ways, you would keep some structure of the current one and swap out of the planks; but I think even that would have so much baggage about it being the Constitution of this state that would be continuing,' he said.
'I think the continuity there would present symbolic issues.
'I think the idea of a new start and a new state in the event of unification would be crucial.'
He added from a practical perspective, there are so many 'unanswered questions' about what the structure of that state might be or what kind of political system it would have.
'Is it federal, con-federal, unitary, what level of delegation down to provincial level would you see in various powers?,' he asked.
'There is very little in the Constitution 1937 that provides for that and the idea of unification that is in that document that the preamble aspires to the unity of the country was quite naïve.
'It was the idea that at some point Northern Ireland would just join in this state and things would continue.
'Really, the Constitution does not provide for a great deal beyond the fact that the territory of the state could encompass the whole island at some stage.
'It does not really think about unification like that, certainly not in any serious way.
'So, I think yes it would require a new constitution.'
Professor Kenny said the challenge of this would be if there is a blank page with nothing agreed, then 'every single issue' in the Constitution becomes a possible point of disagreement.
'That is the benefit of trying to retain some document as a baseline so you don't have to put every single point on the structure of the state up for discussion in what will already be a very difficult process,' he said.
'I think the scale of the changes are so significant, that if you try to do an amended job on Bunreacht na hÉireann, you would be left with almost nothing left of that original document and you would wonder if there would be a great advantage to doing it that way.'
Ivana Bacik TD, Leader of the Labour Party and Party Spokesperson on the Northern Ireland, said there is need for groundwork.
She said a joint Oireachtas community on the Constitution established should be established now with the key part of its function to prepare the ground for what rewriting would be necessary.
'I think you would have to approach it on the basis of lets keep the framework and see where we need to change things to ensure unification could proceed as smoothly as possible,' she said.
'There is an interesting thing about the 1937 Constitution that it is still a transitional constitution.
'There is reference in it to Saorstát Éireann and the Irish Free State so it acknowledges that need for transitional and incremental change.
'I think it could build into a rewrite.
'A joint Oireachtas committee with careful groundwork, green paper, white paper, in advance of the holding of any referendum.
'I think that is essential if we are to avoid the mistake of Brexit to ensure the people go into it, both North and South, fully informed, fully engaged in the process.'
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