THE report of the Constitution Review Group, chaired by Dr T.K. Whitaker, is remarkable for its clarity and comprehensiveness any standards it is a classic example of such a report should be.
The work of the All Party Committee on the Constitution, to be appointed by the Oireachtas in due course, will be enormously facilitated by this document all the constitutional issues that need to be addressed have been carefully and authoritatively analysed, and in many cases backed by appendices prepared by members of the group or outside experts. The wide agreement reached on so many difficult issues testifies to the quality of Dr Whitaker's chairmanship and to the open mindedness of its members.
On the basis of two provisional reports already published by the group, the issue of our electoral system has already been discussed in this column on February 9th. Today, I propose to provide some historical background to the review group's proposals with regard to the private property clauses of the Constitution, placing them in the context of the property clauses of our first draft Constitution, prepared under Michael Collins's chairmanship between March and May, 1922.
Many people will, I believe, be surprised to learn that the Collins committee draft took a very radical view of the property issue. This may have reflected the input of Francis, an American socialist member of the committee, but clearly the rest of the committee and its chairman must have shared his commitment to an approach emphasising the need to give priority to the rights and interests of the community as against individual property rights.
The authors of that draft constitution emphasised their predominant concern with this issue by devoting their first two Articles to a series of declarations about the sovereignty of the nation over all its material possessions, its soil, its resources and all the wealth and wealth producing processes within the nation, and to stating the reciprocal duties of citizens and the State to each other in the service of the commonwealth and of the people.
What, you may ask, happened to these radial one is tempted to say socialist declarations of the Collins draft constitution? Well, first of all, the Provisional Government under Arthur Griffith's presidency, decided to seek external advice on the draft. This led to changes in two fifths of its Articles, many of them proposed by 30 year old George O'Brien, a barrister and latterly an economic historian, who four years later was appointed Professor of Political Economy at UCD, a post he held for 36 years.
NO doubt on George O'Brien's advice, the Provisional Government condensed these radical declarations into a single phrase.
"The sovereignty of the nation extends to all the possessions and resources of the country" which was still fairly strong stuff. It also demoted this clause from its position of primacy in the Constitution, introducing a new political, rather than economic, Article 1, to the effect that "Ireland is a free and sovereign nation."
Although the version of the draft constitution in the British Cabinet papers contains the earlier extended version of the property clause, it seems likely that when the two governments met on May 2th, 1922, to discuss the compatibility of the draft with the Treaty, the more condensed version must have been before them. However that may be, the version of the constitution that emerged from this confrontation, while it remained strongly differentiated from those of the Dominions in its exclusion of the monarch from any domestic role, necessarily conceded some points to the British.
One of these was the dropping of the Provisional Government's proposed "free and sovereign nation" Article 1 in favour of an alternative describing the Irish Free State as "a co-equal member of the Community of Nations forming the British Commonwealth of Nations".
But another clause to be dropped was the condensed Article relating to "the sovereignty of the nation over the possessions and resources of the country", which in the 1922 Constitution, as finally enacted, appeared in a substantially modified form as Article II. That Article stated that "all the natural resources of the . . . territory (including the air and all forms of energy), and also all royalties and franchises within that territory shall . . . belong to the Irish Free State (Saorstat Eireann), subject to any trusts, grants, leases or concessions then existing in respect thereof or any valid private interest therein.
This qualifying clause, which effectively entrenched private property rights, clearly reflected British concern lest an independent Irish Government be tempted at some point to overturn the 17th century land confiscations.
In the 1937 Constitution this entrenchment of private property rights, imposed by a British government in defence of a three century old colonisation, was pushed very much further by de Valera. He was presumably unconscious of the irony of his actions in so doing. His overriding, and understandable, concern at that time even more evident in the wording of the (long since amended) Article 44 on Religion was to ensure that his new Constitution would not be put at risk as a result of being denounced by a Holy See which at that time was deeply preoccupied, not only with the idea of a Catholic State but also with what it saw as the global threat of socialism and communism.
ARTICLE 40.3.2 of de Valera's Constitution accordingly states "The State shall, in particular, by its laws protect against unjust attack . . . the . . . property rights of every citizen." As if that were not enough, Article 43 "acknowledges that man... has the natural right, antecedent to positive law, to the private ownership of external goods", adding. "The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property."
This double coverage of property rights in two separate Articles has been a potential source of confusion. Moreover, although qualified by a provision that the exercise of private property should be regulated by the principles of social justice and that for that purpose these rights may be delimited by law, these Articles have been open to a very restrictive interpretation.
Accordingly, the review group recommends that property rights be safeguarded by a single Article that would provide that "Every natural person shall have the right to the peaceable possession of his or her own possessions or property," going on, as in the present Constitution, to provide that no law may be passed attempting to abolish the right of private ownership.
To this end, the review group would like to see a clause added to the effect that, provided they are duly required in the public interest and accord with the principles of social justice . . . legal restrictions, conditions and formalities may be imposed which may, in particular, but not exclusively, relate to the raising of taxation and revenue, proper land use and planning controls, protection of the environment, consumer protection, and the conservation of objects of archaeological or historical importance".
Such an addition would be immensely valuable, for I can testify from personal experience in government that concern about possible restrictive interpretations of the Articles on private property has been a major impediment to legislation required in the public interest in the areas listed above for example, in relation to the treatment of windfall profits from development land.
It is indeed time the ghosts of past British concerns about the preservation of the 17th century land settlement and past Catholic Church fears of socialism and communism be exorcised from our Constitution.