It is often forgotten, but the purpose of a constitution is to constrain the Government and prevent it from doing certain things. For example, under Ireland’s constitution, a single Dáil may not exist for longer than seven years without a general election. The law, of course, says that the term lasts for five years, but in theory the Government could extend this to seven without a referendum. But not to eight.
Similarly, article 3.2 says that the state will vindicate the property rights of every citizen. What this means, in practice, is that even if a party were to be elected with an overwhelming majority on the promise to seize homes from rich people and give them to poor people, it could not keep that promise without first passing a referendum to change the constitution. That’s the whole purpose of the Constitution: To protect your rights from politicians who might wish to take them away. The much maligned eighth amendment, for example, granted a right to life to the unborn which politicians could not take away. That is why we needed a referendum to strip the right to life from the unborn.
In that context, the call from the citizens assembly to insert biodiversity into the constitution should be seen for what it is: An effort to tie the hands of the electorate, and take this issue away from politicians, and place it into the caring hands of the courts.
Why?
Is biodiversity unpopular? You would not have thought so. Is it likely, for example, that the public would ever vote to elect a government that proposed to drive the badger, or the horseshoe bat, to extinction?
I’d argue not. In fact, the Irish voter has proven time and again that they are willing to vote for greens, and prioritise the environment. To a greater extent, in fact, than in many other EU countries.
What may well happen here, though, is that inserting a biodiversity requirement in the constitution has an explicitly negative impact on housing. Once it is in the constitution, the Government’s hands are tied. They will be required by law to uphold biodiversity in all matters. And that, my friends, will be grist to the mill for those who seem to spend all of their time objecting to new housing projects.
Lawyers, of course, love inserting new rights into the constitution for precisely this reason. More cases. More obligations to be upheld. More constitutional objections which reach the Supreme Court for adjudication and pay thousands a day in legal fees, which, in constitutional cases, are usually forked over by the taxpayer. All in substitution for the usual way of resolving conflicts in a democracy, which is at the ballot box.
Proponents of this proposed referendum know this all too well: It’s why they support it. The aim here is not to enact policy, but to get the population to arm them with a weapon that can be deployed at will against the Government and local councils on planning matters. Arguments that cannot be won at the ballot box can be won – or at least made time consuming and expensive – in the courts.
For those reasons, I wouldn’t expect this referendum to happen. One factor here is the evolution of “citizen’s assembly” from innovative, participatory democracy designed to solve tough problems into what it is now: A talking shop into which the Government can toss problems it does not especially wish to solve. If you are a politician, faced with a thorny issue, “we’ll have a citizen’s assembly on it” is the new “we’ll commission a report”. The hope, almost, is that the assembly beavers away for a year or two and then comes up with unrealistic proposals which can be “carefully considered” for another year or two, only to sadly run out of time to implement them before the next election.
Anyway, you’d think I’d have learned by now about making predictions, but that’s the one I’ll make here. Expect this report to be “carefully considered” until, with any luck, you’ve forgotten all about it.