Michael Clifford: Parties run for cover behind Constitution

The Constitution is taking a battering in this election campaign. They’re coming for it from all angles.

One party is claiming it needs to be shredded, others want to get stuck in for all manner of reasons. And in the end there is no getting away from the reality that like much else, the lofty document is reduced to a political football in the run-up to polling day.

In the last 83 years there have been 38 amendments to the Constitution drawn up by Éamon de Valera. Some have passed into history unnoticed. Others — notably the Eighth — have caused no end of trouble.

By now it should be apparent that referendums should be held only when absolutely necessary but the auction politics of today means all parties use the Constitution as an exhibit to voters to show that they are really, really concerned about a particular issue. Or, to use the parlance de jour, they are simply virtue signalling.

Fianna Fáil was early out of the traps, promising — or threatening — two referendums on issues concerning voters. The party is proposing that the word of a chief superintendent that a defendant in court is involved in organised crime will be legislated for.

The party’s justice spokesperson, Jim O’Callaghan, said if such a measure is unconstitutional, the party will put it to the people in a referendum. The smart money says this measure will disappear at some stage and Jim will have a line of spin to explain it away.

Fianna Fáil and Fine Gael have both suggested that a referendum may be required to cap personal injury awards.

If you thought the Eighth was complicated, wait until our learned friends get stuck into this one. It won’t happen but its purpose — to make the parties look mad as hell about the issue — probably has had some of the desired effect.

Then we come to a referendum on maintaining the water system in public ownership. The Greens and Sinn Féin, in particular, are in favour of this one.

There is not much opposition to it as anything to do with water, including its quality in some places, is toxic. Whether it’s necessary is another matter.

Can anybody envisage a government in the next 30 years ever actually attempting to sell off the water system? Hell will freeze over, water charges will be introduced, and Kilkenny will win the All-Ireland senior football championship before any politician or party would embark on such a course.

One of Sinn Féin’s priorities is a referendum on the border. The party manifesto pledges to “secure a referendum, north and south, on Irish unity”.

The Labour Party is proposing an “omnibus of referendums” in an effort to reshape the whole Constitution. They talk of little else up and down the country as the winter nights press in.

A referendum on the right to housing is also being peddled by a number of parties. On the face of it, in light of the ongoing emergency, this proposal has some merit.

Would it increase the supply of housing, or lead to one person fewer driven into emergency accommodation? Unlikely.

The plight of children with disabilities attempting to get an education illustrates this point. Despite being entitled to an education in both law and the Constitution, many are left out in the cold.

That’s not a reason to refrain from promoting the right to housing, but believing that such a move will make a discernible difference is another matter entirely.

The campaign has also given one party an opportunity to resort to the old political tactic of “don’t hit me with the Constitution in my arms”.

Fianna Fáil was on a sticky wicket at the outset of the campaign over the issue of a rent freeze. In the last Dáil, the party was definitely maybe in favour of it. Sort of.

But when it came to a question as to whether it would be a policy for the election, they produced legal advice suggesting a freeze might be repugnant to the Constitution.

“We have been advised legally that it (a rent freeze) is unconstitutional,” candidate Mary Fitzpatrick told a press conference on January 20.

Data courtesy of The Irish Times

“So we clearly can’t do something that’s unconstitutional.”

This stance immediately brings to mind how the Constitution has been used in other instances to avoid a sticky wicket.

In 1973, the Kenny report on housing — which could have served as a blueprint and reshaped housing over the last 45 years — was rejected by cabinet as a proposal to restrict the windfall for rezoned land was deemed to be unconstitutional.

When an Oireachtas committee got detailed advice on that plan 30 years later, members were told there was no constitutional problem.

Hence, it might reasonably be posited that Fianna Fáil does not want to introduce a rent freeze and is hiding behind the Constitution. In any event, the other parties are proposing a three-year freeze rather than an indefinite one.

And all the indications are that the poor, battered Constitution would have no issue with that. But sure, why not just follow the fashion and have a referendum on that too?