ON DAYS like tomorrow, that Ireland’s political system is more a colander for cabbage water than a sieve for fine flour, will seem a mixed blessing, but a blessing nonetheless.
Unlike a still-United Kingdom straddling the north of this island and the neighbouring island across the Irish Sea, the concept of a referendum whose results are final, is alien to us.
The shoutout that ‘the people have spoken’ after a plebiscite is less a point of conclusion than a comma.
It is usually, though not always, a premise for a continuation of the fight, via another constitutional referendum, not its end.
The movement to repeal the eighth amendment is a case in point. It is little more than 30 years since it was passed with evangelical fervour by an overwhelming majority. But the matter is not settled — far from it.
It is amusing to look back on the recent history of many now defending the status quo.
Having secured in the 1980s the supposedly pro-life referendum demanded, they spent most of the 1990s demanding another but this time ‘real’ pro-life amendment after the Supreme Court ruled in the X case that flawed wording pivoting on an ‘equal’ right to life between mother and child in fact allowed for abortion in certain circumstances, specifically suicide.
Of course this was an outcome confidently predicted at the time by Alan Shatter and Adrian Hardiman among others. But no matter.
When it came in 2002, the ‘real’ pro-life amendment wasn’t real enough for some. Critically, important independent TDs comprising Jackie Healy Rae, Harry Blaney and Mildred Fox, and others elsewhere, in Fine Gael and Fianna Fáil ensured that a wording, copper-fastening what they imagined was the original purpose of the 1983 amendment was put to the people.
However, it wasn’t pro-life enough for some, especially Dana Rosemary Scanlon. Rejected by every major urban constituency as too restrictive, the small but numerically decisive ultra-right wing of the pro-life movement was the critical block ensuring defeat by a tiny majority.
The endorsement of Catholic bishops wasn’t enough.
The then Cardinal Ratzinger was left perplexed, by an Irish catholic subculture so contaminated by John Calvin via Cornelius Jansen that the mutual obsession by intellectually inferior followers of both in Ireland mutated into an outlook that could only define itself, in terms of what it was against.
Say what you like about Ratzinger but he had the measure of the Catholic Church in Ireland, and it wasn’t a generous pour.
Now the tables have turned. There is no chance ahead of the ‘real’ pro-life amendment once wanted to replace the eight amendment of 1983, once so insisted upon. Instead, warts and all, its retention is the new red-line.
Less a constitutional prohibition than a sandbag, the imperfect has become a requirement. It is strange how compromise, in retention of a flawed and certainly punctured eighth amendment, which would not be countenanced as enough prior to 2002, is now an object of principle.
But this is only the most egregious example of our malleability. In general, however, it is a malleability that has served us well.
The first referendum on the Treaty of Nice in 2002 to facilitate institutional change on foot of the enlargement of the EU was defeated here, but with reassurances and a subsequent strong campaign passed in 2002.
In 2008 the first referendum on the Treaty of Lisbon enabling the EU to move to qualified majority voting on a large number of topics as well as significantly empowering the European Parliament was defeated here but subsequently passed in 2009.
In the case of both defeats, poor campaigns by an incumbent government, in bad odour with the electorate played a role. So did a residual angst about a burgeoning unaccountability in a geographically and thematically expanding European Union.
The empowerment of the European Parliament has done something in fact, as distinct from perception, to address the issue of unaccountability.
But here, the forum remains so distant, that it provides little by way of practical answer to a question insidiously undermining the EU: namely who exactly are they and how did they get there. The parliament is a double-edged sword for Ireland.
While it unquestionability is an advance for accountability, itis not so clearly an unqualified advance for Ireland.
In the Council of the European Union, as a small country, we are one of 28. In the European Parliament we are 11 out of 751. For Ireland, accountability is always an ambiguous issue.
It is not just that we rerun some constitutional referenda to suit the popular mood and political requirements, we hold others and simply pay no heed.
In 1979 the seventh amendment to the constitution enabled graduates of any institute of higher education, elect the six senators on the university panel.
Nothing further was ever done. In 2013 the proposed 32nd amendment to the constitution proposed the abolition of an unreformed Seanad. It was rejected by the people and the Seanad, still unreformed, sails on.
Now, however, it has no Government majority and is likely to be a recurring fulcrum of problems in a deeply problematic legislature.
All of that, however, is the colander for our constitutional cabbage water.
For all the rigour of a written constitution, ultimately arbitrated by a Supreme Court, because referenda are an embedded part of the system and specifically provided for, they can be treated as business as usual and certainly business to be rerun again. For the United Kingdom tomorrow, it is entirely different.
They have no written constitution — and referenda are constitutionally extraordinary events.
Only 10 referenda have been held within the UK and until tomorrow only two will have covered all of its constituent parts, as distinct from specific referenda in Northern Ireland, Scotland and Wales.
The first UK-wide referendum was in 1975 on entry to the European Economic Community. The second, at the behest of the Liberal Democrats, was a failed attempt in 2011 to adopt an Alternative Vote System.
Tomorrow will be another irretrievable decision in a system where, because parliament is sovereign, sovereign decisions when delegated, cannot be easily if ever be reversed.
It is an irony that the very holding of referenda is a greater blow to the British tradition of parliamentary sovereignty, than the EU membership, supposedly at the core of tomorrow’s vote.
But, once opened, Pandora’s box cannot be closed. The supposed strength of the British constitution is opaque flexibility.
As Walter Bagehot, Victorian editor of The Economist and authority on the unwritten British constitution wrote: “What is most evident is not the difficulty of getting a fixed law, but getting out of a fixed law”.
The legal mistake of Brexit, like the pro-life amendment, is that it gives inflexible definition to positions which in their ultimate unreasonableness undermine traditional edifices which actually depend on the avoidance of absolute certainty for their continuance.