Positive Action Group - Possan Jantys Jarrooagh

Hi Zephor

I would be very interested to learn your findings concerning the Irish constitution. It would perhaps be worth considering attempted amendments that have been overruled by the courts.

I’m afraid that my legal knowledge is not such that I could offer definitive answers to the constitutional implications of an elected Legco. Having said that, if you had 12 lawyers around a table, you would probably end up with 13 different legal opinions. And if there was no legal opinion to your liking, then you could always hire another lawyer.

The only thing I would comment on would be the articles assertion that without a written constitution it is hard to identify the constitutional implications. I can certainly see the difficulty in this since all the strands that have gone into making our constitutional arrangements through the annuls of time must be gathered and considered.

However, I would imagine that this must have been required when Scotland and Wales received devolved powers from the United Kingdom in 1998. As far as I am aware, it only took an Act of Parliament to establish the means and methods in which bills were to be considered in the devolved legislatures. This must have been achieved without a written constitution as the United Kingdom has no codified document.

Interestingly, the UK’s Coalition Government is looking into the ways and means of delivering a popularly elected House of Lords, with the first elections to take place in 2015. I will be very interested to see whether they manage to achieve this, and even more interested in whether a written constitution would be required for such a change in the upper house. I would suggest that an Act of Parliament would be enough.

Looking forward to hear from you regarding the Irish Constitution

Kind Regards
Jason

Thank you Zephor for the interesting point you make on mortality, and as the economist Keynes stated, ‘in the long run we are all dead’. An example that makes your point is Samuel Norris, the radical liberal I mentioned in my piece before, who campaigned on many of the great liberal issues of his day, but never lived to see them come to fruition.

I understand your wish to see within our lifetime greater representation through FIO, & a popularly elected Chief Minister & LegCo. However, to achieve this through a written constitution would entrench our values, but also our prejudices and our ignorance, thereby creating democratic problems for the future. A future where trappings of an elected Chief Minister & LegCo, & FOI are acquired at the expense of parliamentary sovereignty, serving only to place our democracy in a potentially perilous position for generations to come.

What do I mean by a perilous position for generations to come? I mean the real potential for such a document to be interpreted in ways that it was never designed for. This can be seen through the rulings of judges in Strassbourg who legislate through the European Court of Human Rights. In other words, judges may use the pretext of what is constitutional & unconstitutiona l to rule in areas that the document was never intended. This would certainly undermine parliamentary sovereignty since this would allow unelected judges, often far removed from democratic accountability, to make rulings that would be binding to our elected representatives . So while the next generation will want to campaign on the issues of their day, we may very well have made their task harder; it would not be elected politicians who they would have to convince of the merits of their arguments & objectives, since we would have bound the hands of our elected officials in favour of unelected, legally independent judges who would inevitably be policing what is, & is not, constitutional.

You make an interesting point about the lack of public clamber for the extension of the franchise to 16-17 year olds. However, the cynic in me may question just how progressive this move may have been. While the MHK’s could acquire political kudos and claim a great progressive step forward in extending the vote, the political reality is that not many 16-17 year olds actually vote, and those who do, certainly do not have the numbers to change the political landscape. Having said this, it certainly was a progressive measure and potentially may have a greater impact in future years as trends come and go. However, one thing is certain, it will be almost impossible to remove the vote; after all, no politician would want to be seen removing votes from parts of the electorate.

As to whether the current system can ever bring about such changes in our lifetime; I suggest that it would take a majority vote in the House of Keys. I do not mean for this to appear as flippant as it sounds. I would only like to point out that many people will claim that this is not possible & that is not possible, but what is in the true interests of our island community must always be possible; the difficulty is in convincing a majority of our elected officials to believe that an elected Chief Minister, Legco & FOI is not just possible, but desirable.

There is also a need for the electorate to clamber for these changes, to actually call for their introduction when their candidates knock on their doors at the general election. However, while we may not like the representation that we acquire, and we may look on in dismay when the public do not clamber for these progressive measures, I would always defend it as the price we pay for an electorate that is free to choose their representatives based on any issues they consider important to them.

However, I do believe the trend is changing in our direction. While the age of austerity may mean that our aims are not currently high on the political agenda, I did take heart in the number of candidates who stood for election in 2011 who listed as one of their beliefs, the need for an elected first minister. The journey towards our goals may still be long, but we should not lose heart in that, we should take heart in the fact that the journey has already started. Indeed, the fact that PAG exists, with its Charter, and that we are debating these issues and calling for these great liberal goals on this forum, is playing its own role in bringing about the change that we wish to see. I cannot promise that we will live to see the greater representation we wish to see within our lifetime, but I know that we certainly stand a chance when people are willing to stand up and say, I believe in an elected First Minister; I believe that LegCo should be popularly elected; I believe that a more robust press may emerge from the introduction of FOI.

But we certainly do not need a written constitution to do it.