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Book Review: Constitution Review Group, Report of the Constitution Review Group (Stationery Office, Dublin, 1996)

Book Review: Constitution Review Group, Report of the Constitution Review Group (Stationery... Constitution Review Group, Report of the Constitution Review Group (Stationery Office, Dublin, 1996) xiii + 701 pp, ISBN 0-7076-2440-1, IR215.00 Irish constitutional law shares several features with that of the United Kingdom, such as a system of government based on the separation of powers model, a parliamentary executive which is dominated through strict party discipline, and, of course, E U membership. However, the Irish Constitution is based on a single written text adopted in 1937 which can be amended only with difficulty and which allows the courts to review the laws and acts of the state for compatibility with its provisions. These formal differences, coupled with certain contrasts in political culture, have provided a foundation for a growing divergence in the constitutional law and practice between the two neighbouring states, and. arguably, a greater similarity with those of other European states. It is possible that this divergence from the UK constitutional model and convergence with other models is set to increase with the publication of the final report of Constitution Review Group in May 1996. The group, set up by the Irish Government in 1995, was asked to review all aspects of the Constitution, apart from divorce, bail laws, and a number of other issues that were already subject to scrutiny elsewhere. The membership of the group was drawn from law and other disciplines. from public and private sectors, and their report sets out in an orderly way, a review of the existing law on each provision of the Irish Constitution, consideration of possible alterations, and recommendations for reform. The result is an excellent study on all aspects of the adjectival and substantive constitutional law of Ireland, drawing on experience in other Member States of the E U and other jurisdictions in the common law tradition. It is a very valuable resource for scholars engaged in comparative constitutional study, as well as those working with the Irish Constitution itself, and deserves a wide readership. Given the breadth of the report, it is only possible to focus on a few points arising from it. Certain themes, such as democratization, gender parity and transparency are evident throughout the report. Looking at fundamental human rights, the European Convention on Fundamental Rights has proved to be a significant influence in the Group's deliberations, more so than other international human rights instruments. Although the Review Group decided against direct incorporation of the Convention into the Constitution, it recommended drawing on the Convention where a right is not protected by the Constitution, or the standard of protection of such rights is superior to those guaranteed by the Constitution, or the wording of such a right might be improved. Most interestingly, it proposed introducing a catalogue of protected statuses into the equality clause (Article 40. l), and replacing the bare text EUROPEAN PUBLIC LAW of Article 40.3.1 and the judicially created category of unenumerated personal rights with a comprehensive list of fundamental rights, both drawing on, inter alia, the Convention for this purpose. If the Irish Government responds positively to these and other suggestions there may be a sea-change in the status of the Convention in Irish law. The report's agreed text is accompanied by several appendices, some of which contain dissenting views on particular points, others essays which set out wider concerns on aspects of the report not exhaustively dealt with in the main text itself. These include discussions on proportional representation, the role of the upper house in a bicameral legislature, and the interaction between the President, the Diil (the upper legislative house) and the ousted Government in the formation of a new administration. Many of these appendices are quite valuable resources for scholars in themselves. Ultimately, however. one must ask whether the recommendations of the Review Group are likely to be adopted. Given the dearth of reform to emerge from the proposals of a similar group almost thirty years ago (see Report of the Committee on the Constitution, Pr 9817 (Dublin, 1967)), a cautious approach seems reasonable. It may be that the adoption of a constitution, which in Ireland can only be done by popular referendum, is an act that can only be contemplated in very particular circumstances, and that the Constitution as it currently stands is sufficiently well regarded not to allow such a wholesale reform. One might also note here that while a certain amount of fine-tuning is recommended by the Review Group, some of which is undoubtedly far-reaching, the overall thrust of the report does not envisage a fundamental change in the constitutional order as it currently stands. In addition, the experience of single-issue amendments to the Constitution has, over the past decade or so, seen a rise in 'tactical voting' on proposed reforms with apparently improbable alliances arising between those opposing or favouring constitutional change. This phenomenon might make it impossible to obtain the consensus needed to introduce multiple changes simultaneously, as opponents of change in one area link with those towards whom there are otherwise antagonistic relations, who are opposed to other proposed revisions. However, whatever the outcome may be, Irish lawyers and constitutional lawyers elsewhere have been given a valuable resource in this report. Leo Flynn King's College, London http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png European Public Law Kluwer Law International

Book Review: Constitution Review Group, Report of the Constitution Review Group (Stationery Office, Dublin, 1996)

European Public Law , Volume 3 (2) – Jun 1, 1997

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Abstract

Constitution Review Group, Report of the Constitution Review Group (Stationery Office, Dublin, 1996) xiii + 701 pp, ISBN 0-7076-2440-1, IR215.00 Irish constitutional law shares several features with that of the United Kingdom, such as a system of government based on the separation of powers model, a parliamentary executive which is dominated through strict party discipline, and, of course, E U membership. However, the Irish Constitution is based on a single written text adopted in 1937 which can be amended only with difficulty and which allows the courts to review the laws and acts of the state for compatibility with its provisions. These formal differences, coupled with certain contrasts in political culture, have provided a foundation for a growing divergence in the constitutional law and practice between the two neighbouring states, and. arguably, a greater similarity with those of other European states. It is possible that this divergence from the UK constitutional model and convergence with other models is set to increase with the publication of the final report of Constitution Review Group in May 1996. The group, set up by the Irish Government in 1995, was asked to review all aspects of the Constitution, apart from divorce, bail laws, and a number of other issues that were already subject to scrutiny elsewhere. The membership of the group was drawn from law and other disciplines. from public and private sectors, and their report sets out in an orderly way, a review of the existing law on each provision of the Irish Constitution, consideration of possible alterations, and recommendations for reform. The result is an excellent study on all aspects of the adjectival and substantive constitutional law of Ireland, drawing on experience in other Member States of the E U and other jurisdictions in the common law tradition. It is a very valuable resource for scholars engaged in comparative constitutional study, as well as those working with the Irish Constitution itself, and deserves a wide readership. Given the breadth of the report, it is only possible to focus on a few points arising from it. Certain themes, such as democratization, gender parity and transparency are evident throughout the report. Looking at fundamental human rights, the European Convention on Fundamental Rights has proved to be a significant influence in the Group's deliberations, more so than other international human rights instruments. Although the Review Group decided against direct incorporation of the Convention into the Constitution, it recommended drawing on the Convention where a right is not protected by the Constitution, or the standard of protection of such rights is superior to those guaranteed by the Constitution, or the wording of such a right might be improved. Most interestingly, it proposed introducing a catalogue of protected statuses into the equality clause (Article 40. l), and replacing the bare text EUROPEAN PUBLIC LAW of Article 40.3.1 and the judicially created category of unenumerated personal rights with a comprehensive list of fundamental rights, both drawing on, inter alia, the Convention for this purpose. If the Irish Government responds positively to these and other suggestions there may be a sea-change in the status of the Convention in Irish law. The report's agreed text is accompanied by several appendices, some of which contain dissenting views on particular points, others essays which set out wider concerns on aspects of the report not exhaustively dealt with in the main text itself. These include discussions on proportional representation, the role of the upper house in a bicameral legislature, and the interaction between the President, the Diil (the upper legislative house) and the ousted Government in the formation of a new administration. Many of these appendices are quite valuable resources for scholars in themselves. Ultimately, however. one must ask whether the recommendations of the Review Group are likely to be adopted. Given the dearth of reform to emerge from the proposals of a similar group almost thirty years ago (see Report of the Committee on the Constitution, Pr 9817 (Dublin, 1967)), a cautious approach seems reasonable. It may be that the adoption of a constitution, which in Ireland can only be done by popular referendum, is an act that can only be contemplated in very particular circumstances, and that the Constitution as it currently stands is sufficiently well regarded not to allow such a wholesale reform. One might also note here that while a certain amount of fine-tuning is recommended by the Review Group, some of which is undoubtedly far-reaching, the overall thrust of the report does not envisage a fundamental change in the constitutional order as it currently stands. In addition, the experience of single-issue amendments to the Constitution has, over the past decade or so, seen a rise in 'tactical voting' on proposed reforms with apparently improbable alliances arising between those opposing or favouring constitutional change. This phenomenon might make it impossible to obtain the consensus needed to introduce multiple changes simultaneously, as opponents of change in one area link with those towards whom there are otherwise antagonistic relations, who are opposed to other proposed revisions. However, whatever the outcome may be, Irish lawyers and constitutional lawyers elsewhere have been given a valuable resource in this report. Leo Flynn King's College, London

Journal

European Public LawKluwer Law International

Published: Jun 1, 1997

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