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Irish Independent
a day ago
- Politics
- Irish Independent
New Irish Constitution would be required for a United Ireland, professor says
Speaking today at the MacGill Summer School in Glenties, Donegal, at an event focused on the Constitution, Ruadhan Mac Cormaic, editor of the Irish Times questioned a panel if a United Ireland would require 'tearing the thing up and starting again'. 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.'
Irish Examiner
07-07-2025
- Politics
- Irish Examiner
TD's super junior ministers challenge seeks 'unprecedented' intervention of judiciary, court told
A Kerry TD's High Court action challenging the constitutionality of super junior minister appointments seeks the judiciary's 'unprecedented' intervention in the inner workings of the Government's executive branch, the Attorney General has said. Rossa Fanning made the argument in presenting the State's defence to Pa Daly's case, which opened before a three-judge divisional court on Monday. Mr Fanning said the court should resist the Sinn Féin TD's attempt to have the judiciary involve itself in a 'political contest being played as an away fixture down at the Four Courts'. Mr Daly's case claims the appointment of super junior ministers is 'completely anti-democratic', and is a breach of various provisions of Bunreacht na hÉireann. Mr Daly, Sinn Féin leader Mary Lou McDonald and Sinn Féin finance spokesman Pearse Doherty were present in court on Monday morning. 'Ministers of State attending Cabinet', or super junior ministers, are appointed by the Government on the nomination of the Taoiseach. They participate at Government meetings but do not vote. Pa Daly, Sinn Féin leader Mary Lou McDonald and Pearse Doherty outside the Four Courts in Dublin this morning. Picture: Collins Courts Opening Mr Daly's case Feichín McDonagh SC said super junior ministers meet and act as a 'collective authority' with other senior government members, in breach of the constitution. Counsel opened to the court Article 28 of the Constitution, which limits the number of government members to 15, including the Taoiseach, and provides that they meet and act as a collective authority. Under the current scenario, there are 'extra individuals' – super junior ministers – who are present in the Cabinet room taking a full role in the formulation of Government policy, Mr McDonagh said. Every decision taken by the Government with these extra individuals in attendance has been formulated in breach of Article 28 of the Constitution, Mr McDonagh said. He said their case is not challenging a particular Government decision based on the legal points raised – but some other litigant could, which is a danger and possible problem, Mr McDonagh said. Their case is trying to ensure the Government complies with the Constitution, Mr McDonagh said. Counsel said the Attorney General attends Cabinet meetings to provide legal advice, and the secretary general takes meeting minutes, but they do not act collectively with the members of Government. Pa Daly. His case claims the appointment of super junior ministers is 'completely anti-democratic'. Photo: Leah Farrell/© Rossa Fanning, for the State respondents, said the court should resist Mr Daly's case, which attempts to have the judiciary involve itself in a 'political contest being played as an away fixture down at the Four Courts'. Mr Fanning said the case's key question was whether the Constitution forbids the regular attendance by ministers of state at Government meetings, whilst simultaneously allowing the attendance of the secretary general, attorney general, and limited attendance of other ministers. 'Plainly, the answer to that question is the Constitution does nothing of the kind,' he said. Mr Fanning said their case is because there is no Constitutional regulation of who attends Cabinet meetings, who attends is a matter exclusively for the Government itself. Mr Fanning submitted that even if the court disagrees with this, for Mr Daly's case to succeed, he must prove the Government's 'clear disregard' of the Constitution. Mr Fanning said the practice of ministers of state attending Cabinet meetings has been ratified and recognised multiple times by members of the Oireachtas. This arises from legislation passed, initially in 2001, providing for allowances to be paid to those ministers. Earlier, Mr McDonagh said this allowance 'is neither here nor there' when addressing the legal issues raised by their case. Mr Fanning submitted that Cabinet meetings are only one element of Government decision-making, and cannot be looked at artificially in isolation of the other parts of that process. He noted the role of Cabinet Committees in the process, and other people and organisations that can influence a decision. The idea that ministers of state must be hermetically sealed away from the formation of policy is completely unreal, he said. Mr Fanning said Mr McDonagh was advancing an 'unprecedented' argument, by positing that the attendance of additional people at a Cabinet meeting invalidates a consensus decision of the 15 senior government ministers. Mr Fanning said Mr Daly's side were seeking to reverse engineer an interpretation of the Constitution to suit their case. The case continues, and is expected to run until Wednesday at the latest.
Irish Examiner
06-07-2025
- Politics
- Irish Examiner
Pa Daly: Why Sinn Féin is challenging the Government on super junior ministers
This week I will bring a constitutional challenge against the Government in the High Court regarding the appointment of super junior ministers. The case challenges what I believe is a deeply problematic and unconstitutional practice that has taken root in recent decades - the attendance and participation of so-called super junior ministers at meetings of the Government. This case is a constitutional challenge aimed at protecting the integrity of our system of government under Bunreacht na hÉireann with which Fianna Fáil, Fine Gael and the Lowry-led Independents are playing fast and loose. The Constitution is clear. Article 28.1 states that 'the Government shall consist of not more than 15 members'. That is not a guideline, a suggestion, or an ideal. To me, this is a legal limit on the number who may be part of the Government. The practice of allowing super junior ministers to attend Cabinet meetings, contribute to discussions and access all Cabinet documentation, amounts, in effect, to treating them as full members of Cabinet. That is, in our view, in clear breach of the Constitution. While super junior ministers do not have a formal vote at Cabinet, that argument is largely academic. As former Taoiseach Leo Varadkar himself acknowledged earlier this year, votes at Cabinet happen rarely, if at all. What matters is that super junior ministers are regularly present, bring memos for decision, and are deeply involved in the executive decision-making process. They are treated, in all meaningful respects, as equals to Cabinet ministers, without being bound by the same legal framework and without the constitutional permission to operate in that role. This, we will argue, undermines the core principles of collective Cabinet responsibility and Cabinet confidentiality. The Constitution guarantees that the Government speaks with one voice and that its internal workings are conducted within a protected, confidential framework. This is necessary to ensure stability, coherence, and accountability. When individuals who are not legally members of the Government are present, that principle is eroded. Cabinet confidentiality is diluted, and the chain of collective responsibility becomes blurred. Let's be clear, this is not a historical anomaly. The attendance of a Minister of State at Cabinet first occurred in 1994 under the Rainbow Coalition. Every government since has perpetuated this arrangement. But that doesn't make it right - nor does it make it legal, but we believe that it is time for the courts to adjudicate on the issue. We have reached a point now where four super junior ministers of State are incentivised, via public funds, to operate as Cabinet members in all but name. I believe that this is incompatible with the Constitution. It effectively uses taxpayer money to encourage a practice that breaches the constitutional limits placed on the composition and function of Government. That should concern every citizen, regardless of party or politics. We are told this is a matter of practicality or political expediency. We're told it helps the government run more smoothly or allows for more inclusive voices at the table. Who is running the Government? But when Michael Lowry TD - someone who brokered a deal between Fianna Fáil, Fine Gael, and the Regional Independent Group - states publicly that super juniors 'will sit at the Cabinet table, have access to all Cabinet papers, contribute at Cabinet, and attend all leaders' meetings,' we must ask - who is really running the Government? This arrangement isn't about good governance. It's about maintaining power through political horse-trading. It is about doing deals behind closed doors and bending constitutional norms to fit political convenience. It is now time to get clarity from the courts on the constitutionality of the issue. The Constitution must mean what it says. If we allow these lines to be blurred, we invite further erosion of the democratic checks and balances that are essential to our system of government and to our democracy. This case is not about party politics. It is not about those who currently serve as super junior ministers. But the constitutionality of their role at Cabinet I believe must be clarified. A culture has developed where constitutional boundaries can be bent by political deal-making. The cost is the loss of public trust in politics and the weakening of our democratic institutions. This case is about reasserting the rule of law, reaffirming the authority of Bunreacht na hÉireann, and ensuring that the Government operates as the Constitution demands. Anything less would be a disservice to the people of Ireland.
Irish Independent
13-06-2025
- Politics
- Irish Independent
Donal Fallon: How Margaret Thatcher and her knitted jumper helped nip the first attempt at Brexit in the bud, 50 years ago
Today at 21:30 While referendums are somewhat commonplace in Ireland, thanks to Bunreacht na hÉireann's requirement for questions to go before the citizenry, they are much rarer occurrences next door. Fifty years ago this month, Britain and a considerable chunk of this island were asked to answer a question: 'Do you think the UK should stay in the European Community (Common Market)?' Coming less than three years after British membership of the European Economic Community, the referendum was in some ways more complex than the 2016 one that ultimately removed Britain from the EU.
