The use of referendums in Ireland: an analysis

The referendum is a phenomenon which is becoming increasingly normalised in the constitutional practice of many countries. Ireland is an EU member state with particularly extensive experience of the referendum as a decision-making tool. To date, it has held 39 referendums on a variety of issues – ranking it among the top four states in Western Europe in this regard.

This article seeks to review the emergence of referendums in Ireland as a decision-making instrument and to ask what constitutional, legal or institutional factors have led to referendums enjoying such comparatively extensive use there. It seeks to examine which political issues have formed the subject of referendums in Ireland, and to investigate what kinds of issues have succeeded in gaining electoral approval and what kinds have not. The extent of electoral participation in (and thus representativity of) Irish referendums is also scrutinised, and factors affecting participation rates examined.     

The parliamentary activity of the head of government in Ireland (1923–2000) in comparative perspective

This article examines the parliamentary activity of the head of government in Ireland in selected years from 1923 to 2000 and compares the findings with previous studies of the British and Canadian systems. The results show that, similar to the UK and Canada, there is variation in the level of parliamentary activity in Ireland from one head of government to another. However, contrary to the British and Canadian experience, in the Irish case the data show that the head of government's overall level of parliamentary activity has generally increased over time. In short, Irish heads of government are not necessarily more active than their contemporary British and Canadian counterparts. However, in a number of respects they are certainly more active than their Irish predecessors used to be. These findings suggest that there is now a greater degree of indirect accountability in the Irish system than was previously the case.     

‘Done to death by father or relatives’: Irish families and infanticide cases, 1922–1950

In February 1929 the Bishop of Ossory commented on the fact that in Ireland illegitimate infants were often ‘done to death by father or relatives’ (Irish Catholic, 16 February 1929). There were many instances where family members of unmarried women who gave birth were the sole defendants or co-defendants in infanticide cases in post-independent Ireland. Although illegitimate infants were ‘done to death’ by their fathers in a number of cases that were tried at the Central Criminal Court in Dublin between 1922 and 1950, this article will focus on cases where infants were murdered or suspected of having been murdered by relatives of the birth mother both in the Twenty-Six Counties and in Northern Ireland (Irish Catholic, 16 February 1929). For the purposes of this article I have referred to the murder of illegitimate infants as ‘infanticide’ even though there was no separate charge of infanticide in the Irish Free State until 1949. The English infanticide acts of 1922 and 1938 also applied to Northern Ireland. This article discusses the motives of the relatives of single mothers who played a part in the deaths of illegitimate infants. Unmarried motherhood was severely frowned upon in Ireland and the relatives of single pregnant women assisted their female kin in destroying the evidence of extra-marital conception in order to protect the family's honour and moral reputation in the wider community. The records of infanticide trials provide a great deal of insight into the ways in which mainly working-class families dealt with the strain of pregnancy outside wedlock in Ireland between 1922 and 1950.     

Legislative term limits in the United States

From 1990 to 1995 almost half of the American states adopted term limits for their congressional representatives and state legislatures. Although the US Supreme Court declared these laws unconstitutional as far as federal legislators are concerned, many states are proceeding to implement term limits for their own legislatures. This article examines the historical background to rotation in office, the political and constitutional issues involved, the term limits movement and its evolving strategies, congressional action on a proposed constitutional amendment and the impact on state legislatures. It concludes that the relative decline of the term limits movement since 1995 can be explained by a number of factors, including factionalism among its supporters and improving economic conditions in the country, but that it has made its own distinctive mark on American politics and its effects will be felt over the coming years.     

宪法修改的程序性力量与程序机制

宪法修改既可以通过宪法修改程序进行，也可以通过宪法解释、宪法惯例和宪法判例的形式来改变宪法的一些规定或改变宪法条文的原有含义。人民的愿望和态度是导致宪法修改的最根本的程序性力量。各国根据自身政治文化传统、权力分配架构和社会结构状况对宪法修改权和修宪程序作出制度安排，以期充分汇集、表达人民的意志，达到防止不合理的修宪议案被通过和减少将来修改案实施困难的目的。宪法修改程序是宪法规范和社会关系互动的权威机制，必须体现宪法适应社会要求和不断自我完善的内在规律。我国宪法规定的修改程序存在不合理之处，应该采取必要的措施完善修完建议权和提案权的程序规范，增加议决程序的民主性。     

Abortion in Northern Ireland: Has the Rubicon Been Crossed?

On 7 June 2018, the Supreme Court delivered their long anticipated ruling on whether the abortion laws in Northern Ireland are compatible with the European Convention on Human Rights. Although the case was dismissed on procedural grounds, a majority of the court held that, obiter, the current Northern Irish law was incompatible with the right to respect for private and family life, protected by Article 8 ECHR, “insofar as it prohibits abortion in cases of rape, incest and fatal foetal abnormality”. This Supreme Court decision, seen alongside the May 2018 Irish referendum liberalising abortion, and the 5 June 2018 Parliamentary debate seeking to liberalise abortion laws in Northern Ireland and the rest of the UK, places renewed focus upon the abortion laws of Northern Ireland and Great Britain, which suggests that the ‘halfway house’ of the Abortion Act 1967 Act finally be close to being reformed to hand the decision of abortion to women themselves.     

Constitutional Rights in the Irish Home Rule Bill of 1893

In 1893, Prime Minister Gladstone introduced the second Irish home rule bill in parliament. The bill broke with tradition in Britain and the empire, as it included provisions from the bill of rights of the United States. Its significance was clear at the time: it was debated for nine days in the committee stage and, with one minor amendment, it remained part of the bill that passed the Commons. However, the bill was defeated in the Lords and, at least in the United Kingdom, bills of rights were dismissed as unnecessary or detrimental to sound governance until well after the second world war. This article therefore tries to understand how this early bill of rights was regarded at the time. Who suggested, or demanded, its inclusion? How did they expect it to be applied? And how did the debate reflect and influence thinking about constitutional law in Britain and the empire?     

‘Til death do us part’: surviving spouses,civil partners and provision on intestacy in Ireland

The Succession Act 1965 brought, it was said, a ‘revolutionary change’ in the law of succession to Ireland (Re Urquhart [1974] IR 197 at 208). However, despite the enormous impact it has had on citizens, in the 50 years since its enactment, the Act has never been subject to a comprehensive review or reform. This lack of legislative engagement in Ireland stands in marked contrast to a number of other common law jurisdictions. In the past decade alone, the Law Commission for England and Wales, the Scottish Law Commission, the New South Wales Law Reform Commission and the British Columbia Law Institute have each placed their respective succession law regimes under the microscope. Responding to this gap in the literature, this article considers the extent to which surviving spouses or civil partners are adequately protected on intestacy, specifically, in Ireland. Highlighting the potentially serious shortcomings of the Irish fractional share approach, and drawing on the experience of a number of common law jurisdictions, the article presents a proposal for reform. In this regard, it places a particular focus on the need to strike an appropriate balance between the competing interests of spouses/civil partners and children in the distribution of an intestate estate.     

改革、修宪与宪法理论论争——现行宪法颁布30周年之际的一个学术史回溯

从宪法修改问题在学界的最初提出、学界对频繁修宪现象的反思以及在宪法修改内容方面的一些理论焦点等问题出发,梳理了现行宪法颁布以来学界对于宪法修改的一些争议性论题,旨在以宪法修改的相关理论论争为线索,探究现行宪法30年来的变迁轨迹,并对现行宪法的实施、变迁等问题进行一个客观的评价。     

承认双重国籍:印度国籍立法的重大变化

印度由坚持单一国籍的政策转为承认双重国籍,目的是为了借力海外,吸引海外印度人(印度侨民和外籍印度人)的资金和技术。印度宪法中关于单一国籍的条款的修正得到了印度上下及海外印度人的拥护和支持。不过,印度实行双重国籍的范围却是相当有限的。     

Reinforcing the family: The role of gender,morality and sexuality in Irish welfare policy, 1922–1944

Irish legislators had to negotiate rigidly defined gender roles, strict moral codes and contradictory sexual behaviour when implementing welfare policy in the early decades of the twentieth-century. Despite traditional and unforgiving attitudes to male and female sexuality, the debates surrounding welfare policy in Ireland reveal a more complex sexual landscape and an overriding concern regarding child protection and family welfare. Faced with real fears regarding the viability of the Irish family and the degree of child poverty, Irish legislators opted to use welfare policy to direct limited state resources towards the children of vulnerable and/or large families resulting in an apparently inconsistent approach to gender ideals.     

An Analysis of Policy‐Based Congressional Responses to the U.S. Supreme Court's Constitutional Decisions

While Congress can attempt to overrule constitutional decisions of the Supreme Court by initiating the constitutional amendment process, an amendment is rarely a practicable option. Instead, Congress regularly tries to modify the impact of constitutional decisions with ordinary legislation. I analyze policy‐based responses to the Supreme Court's constitutional decisions that were initiated in Congress between 1995 and 2010. For each responsive proposal, I consider the relationship between the proposed legislation and the Court's legal holding and the relationship between the proposal and the public policy associated with the Court's decision. I find that Congress enjoys considerable success in reversing the policy impacts of the Court's decisions but is limited in its ability to overcome the Court's legal rules.     

"Braxton Hick's" or the birth of a new era? Tracing the development of Ireland's abortion laws in respect of European Court of Human Rights Jurisprudence

In Ireland, Article 40.3.3 degrees of Bunreacht na hEireann (the Irish Constitution) guarantees the right to life of the unborn child and the equal right to life of the mother. Abortion in Ireland is permissible only where there is a real and substantial risk to the mother's own life. Since Ireland became a signatory to the European Convention on Human Rights in 1950,2 there have been concerns that it could result in Ireland being compelled to introduce a right to abortion. This article commences with a review of the extant law on abortion in Ireland, tracing the Constitutional protection afforded to the unborn child. The article will discuss the impact of the European Court of Human Rights' jurisprudence in regard to access to abortion and to information on abortion services in Ireland in an effort to ascertain if it really has resulted in a radical change to Irish abortion laws. As such, it will also be necessary to examine the more recent decisions of the ECtHR such as Tysiac v. Poland, and A, B, and C v. Ireland, to determine both the approach of the ECtHR to access to abortion in general and also to consider if it has resulted in a liberalisation of abortion law in Ireland.     

修宪权正当程序控制论

为防范修宪权的滥用，必须对其施加程序控制。正当的修宪程序不仅具有工具性价值，而且还具有促进民主性、提升民族理性和树立宪法权威性等独立价值。正当的修宪程序应该遵循平等参与、刚性、修宪权能适度分散行使和效率等原则。考察各国修宪权程序控制模式，发现大多数国家的宪法往往会将修宪动议主体与修宪议案决定主体结合起来考虑，使二者能够起到既相互制约又互为补充的作用。我国的修宪程序在参与性、刚性和权能分散性方面存在明显的不足。应当赋予国务院和最高人民法院修宪动议权，规定人民的讨论权，修宪议案的决定应该采取代表与人民分享部分内容的共决型模式，即某些宪法条款全国人大就有权决定修改，而另外一些宪法条款则只有人民以全民公决的方式才能决定是否修改。     

我国现行宪法修改制度的评析及其完善

我国宪法一直面临着保持稳定性与适应社会现实性的矛盾,而解决这一矛盾的关键是规范我国现行宪法修改制度,以控制宪法修改频率,提高宪法修改质量。我国现行宪法修改制度存在的最大不足是我国的宪法修正案不能作为独立的条款直接被引用,且缺乏一些必要的程序,必须予以修改完善,以使其更好地规范和保障我国宪法的修改。     

转型社会宪法修改的模式与功能

以宪法制度的稳定性程度为标准,世界各国宪法大致可以分为定型宪法和转型宪法两种类型。中国仍处于社会转型时期,宪法制度仍未定型。从比较法的视角来看,中国宪法修改的模式和功能不同于一般西方法治国家宪法,也不同于一般的转型国家宪法。从现行宪法颁布实施以来的经验来看,宪法修改主要发挥了向后看的确认功能。在全面推进法治的进程中,宪法修改逐渐开始发挥前瞻性的功能,将社会基本价值共识以法律的形式确认为根本规范,进而为未来社会转型提供规范性指引。     

Police accountability and the Irish law of evidence

Common law courts have differed on whether and to what extent an exclusionary rule should be used as a tool to impose standards on the police. The Irish courts have pursued an uncompromising approach in this area. Basing themselves on the imperative of upholding the constitutional rights of the accused, they have been willing to exclude relevant and cogent evidence on the basis that it was obtained by the police in breach of those rights. This article locates the Irish constitutional exclusionary rule in the broader context of the role of the law of evidence in police governance. Citing specific examples from the Irish legislation and case law, it shows how recent legislative interventions and some judicial hesitancy have fuelled inconsistent and contradictory trends. It concludes that there is now a pressing need for reflection on the respective roles of the legislature and the courts in this area.     

The Common Travel Area between Britain and Ireland

Despite its endorsement by the Treaty of Amsterdam, the origins and content of the 'common travel area' between Britain and Ireland remain largely unknown. This article relies upon published and archive material in order to provide a comprehensive analysis of the common travel area. It shows that the common travel area has been founded upon administrative agreements (in 1922 and 1952), that it has influenced the special status of Irish nationals in British law and vice versa, and that it has been reflected in the law on entry to each state from the other and in the enforcement by each state of the other's immigration policy. It goes on to argue that the existence of a land border between the two states has been the primary reason for the common travel area. The implications for the common travel area of the recent increase in immigration to Ireland are then examined. Here, it is shown there have been significant changes to Irish immigration law relating to the common travel area since 1997, and it is suggested that these new circumstances may result in further reform of laws and practices in both Britain and Ireland.     

Facultad libre de la autoridad para reinstalar a los miembros de las corporaciones policiales como resultado del juicio de ponderación

Due to the existing climate of violence, corruption and public insecurity, the Constitution was amended to stop police forces' members from being reinstated in their jobs despite having obtained a judicial decision proving their dismissal was unfounded. This amendment was adopted in order to Streamline the police forces but it ultimately affects other constitutional rights and principles such as police forces members' careers and their professionalism. Based on the use of a weighted assessment or a proportionality test, this article proposes an alternative application of the constitutional reform to satisfy the enforcement of the will of the constituent and to avoid unnecessary or disproportionate action against the police forces' above-mentioned fundamental rights.     

Replacing and Amending Constitutions: The Logic of Constitutional Change in Latin America

Since 1978, all countries in Latin America have either replaced or amended their constitutions. What explains the choice between these two substantively different means of constitutional transformation? This article argues that constitutions are replaced when they fail to work as governance structures or when their design prevents competing political interests from accommodating to changing environments. According to this perspective, constitutions are likely to be replaced when constitutional crises are frequent, when political actors lack the capacity to implement changes by means of amendments or judicial interpretation, or when the constitutional regime has a power‐concentrating design. It is further argued that the frequency of amendments depends both on the length and detail of the constitution and on the interaction between the rigidity of the amendment procedure and the fragmentation of the party system. The article provides statistical evidence to support these arguments and discusses the normative implications of the analysis.