As we mark the centenary this week of the official foundation of the State, and the coming into force of our first constitution, it is timely to reflect on the balance between constitutional and legislative roles. A constitution sets out the framework within which elected governments and parliament operates. It sets out fundamental rights of citizens.
The Oireachtas, acting within this overall framework, enacts, amends and repeals legislation, with dozens of new Acts every year. The Constitution, on the other hand, is a more permanent document. Our Constitution has been amended 28 times since its adoption in 1937, while in the last decade alone, there have been over 420 new Acts passed.
Provided the fundamental rights set out in the Constitution are respected, it is the role of elected politicians to legislate on the issues of the day, and to tease out the issues over a multistage legislative process. If they get it wrong, or if circumstances change, they can amend or repeal laws that are no longer seen as serving society.
On the other hand, once something is enshrined in the Constitution, short of another referendum, the power to decide moves from elected politicians to our judiciary. Where fundamental human rights are concerned, this is an important bulwark for citizens. But where complex issues involving competing economic and social rights are concerned, those elected by the people are better placed to decide the balance to be struck between competing interests.
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Constitutional change can, and has, led to unintended consequences. The Eighth Amendment to the Constitution is a prime example. Following its adoption in 1983, two further Constitutional amendments were made in 1992 to provide for the right to travel and the right to information, and it was finally repealed in 2018, amid widespread concern about its potential impact on medical practice in maternity hospitals. Quite rightly, this repeal returned the right to decide in this complex area to our legislators.
That’s why we need to think very carefully about the well-intended proposals from the Citizens’ Assembly on biodiversity to install the protection of biodiversity and nature into the Constitution, and to recognise nature as a holder of legal rights.
Biodiversity is vital to protect our interconnected natural world, and the variety of its organisms. We depend on bees and other natural pollinators, and they, in turn, depend on the diverse habitats where they thrive.
Monoculture of any species to the detriment of others runs the risk of a devastating wipeout – we lost many hedgerow trees to Dutch elm disease, and now to ash dieback. Our bogs form an important carbon sink. Our agricultural grasslands are dominated by ryegrass. Interesting work on multi-species swards has shown the value of adding plants such as clover and chicory that help fix more nitrogen in the soil, reduce fertiliser use, and produce healthy livestock.
Thwart delivery
So, like the recent Citizens’ Assembly, I’d like us to take biodiversity more seriously in Ireland. I’d like to see greater attention and funding for biodiversity, and sensible and workable regulatory provisions. But where I disagree is their suggestion around inserting constitutional protections for biodiversity. Like other Constitutional amendments we have enacted, this runs the risk of unintended consequences. But unlike unworkable regulations, which can be repealed, constitutional provisions that hamper other desirable objectives, including tackling climate change, are much less easily fixed.
Would a biodiversity clause in the Constitution prevent us ever building on any site other than degraded brownfield ones?
To tackle climate change, we need to accelerate the delivery of wind power. We also need to fix carbon through planting trees. But there is a risk that constitutional rights to biodiversity could thwart delivery of these important goals. An absolute priority to biodiversity ignores the trade-offs that are necessary to balance competing objectives, where the best judges are those we elect.
A wind farm will reduce the amount of greenhouse gases emitted for a given level of energy supply. But whether on land or sea, some organisms will be affected in the specific location. A constitutional right to protection of diverse species could override any balancing of competing concerns. Already, applying for licences to plant trees is tortuous and expensive, given the standard of absolute proof needed that species won’t be adversely affected.
We have a housing emergency, and a growing population. Would a biodiversity clause in the Constitution prevent us ever building on any site other than degraded brownfield ones?
We want to enhance biodiversity, develop wind power, plant more trees, and house our people, but our systems need to allow for judgment calls of how we balance these aims in specific instances.
