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Referendum results and changing the law.

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  • 28-10-2018 6:34pm
    #1
    mickmac76
    Registered Users Posts: 400 ✭✭


    Hi


    I have a question concerning the recent referendums especially the one on abortion. Given that the government has a small minority could an Irish government just decide to ignore the referendum results and not change the law. Would people be prosecuted for blasphemy or offering abortion services if the government just decided to sit on its hands and do nothing. I noticed that some people on the brexit thread were saying that the referendum over in the UK was advisory and the government should ignore the results. Can an Irish government do the same or do they have to legislate the results. What happens if they can't get the legislation through the Dail? Looking forward to hearing some clarification.


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    #2
    ArmaniJeanss
    Registered Users Posts: 13,295 ✭✭✭✭ArmaniJeanss


    There's definitely no problem with the abortion aspect - we voted to allow the government/dail to legislate as they decide so technically the existing extremely prohibitive legislation fits that concept perfectly well.

    Blasphemy, I think that's OK as well - just because there's no longer a reference in the constitution doesn't mean the Dail can't legislate to make it an offence (or leave the existing laws there). There's loads of things we make illegal through legislation that aren't mentioned in the constitution.

    I think the only time we would have a 'constitutional crisis' is if something was specifically allowed/disallowed in the constitution whilst existing legislation said the opposite (and the government was unable to get a change to it through the Dail).


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    #3
    Stark
    Registered Users Posts: 20,894 ✭✭✭✭Stark


    Really depends on the wording of the clause in the Constitution. Some clauses mandate for the government to legislate, others are permissive clauses (such as the new abortion clause).


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    #4
    Peregrinus
    Registered Users Posts: 26,056 ✭✭✭✭Peregrinus


    mickmac76 wrote: »
    Hi


    I have a question concerning the recent referendums especially the one on abortion. Given that the government has a small minority could an Irish government just decide to ignore the referendum results and not change the law. Would people be prosecuted for blasphemy or offering abortion services if the government just decided to sit on its hands and do nothing. I noticed that some people on the brexit thread were saying that the referendum over in the UK was advisory and the government should ignore the results. Can an Irish government do the same or do they have to legislate the results. What happens if they can't get the legislation through the Dail? Looking forward to hearing some clarification.
    Short answer; yes, the government could "ignore" the referendum and not change the law. That's because the changed wording doesn't say that blasphemy is not to be a crime; all that has been done is to remove wording which says that blasphemy must be a crime.

    Slightly longer answer; this sometimes happens. The Constitution was amended in 1979, for example, to remove language that required NUI graduates to elect senators, and TCD graduates to elect three senators, and replace it with language which just provided for 6 university senators. The idea was to enable the NUI to be dissolved and replaced with four separate universities in Cork, Dublin, Galway and Maynooth. However by the time the amendment went through higher education policy had changed, and dissolving NUI was no longer on the cards. So nothing was done, and we still have three TCD senators and 3 NUI senators.

    Still longer answer: I wouldn'tt worry too much. Nobody has been prosecuted for blasphemy since 1855 (and that prosecution failed) and the 2009 law was designed to be all but unprosecutable. I'm pretty confident that the government does intend to repeal the blasphemy legislation and will do so fairly soon, but even if it didn't I don't think we'd see a wave of blasphemy prosecutions.


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    #5
    Peregrinus
    Registered Users Posts: 26,056 ✭✭✭✭Peregrinus


    Deleted accidental double post.


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    #6
    L1011
    Moderators, Business & Finance Moderators, Motoring & Transport Moderators, Society & Culture Moderators Posts: 67,697 Mod ✭✭✭✭L1011


    The majority of referenda (that don't related to EU treaties) are permissive rather than prescriptive, however while the marriage referendum was realistically permissive in its wording, it made the existing laws unconstitutional so the change had to occur or would be forced by the courts.

    The removal of the 8th didn't alter the existing laws as the 8th itself was a pointless back-slapping exercise considering abortion was already illegal at the time.


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    #7
    Peregrinus
    Registered Users Posts: 26,056 ✭✭✭✭Peregrinus


    Actually, the EU treaty amendments are also permissive: they insert language like "The State may ratify the Treaty of Lisbon . . .".

    The removal of the requirement for blasphemy to be an offence, on the face of it, creates a situation where the Oireachtas may or many ont choose to maintain the offence of blasphemy, and neither state of affairs would be clearly unconstitutional. But if the blasphemy offence were left on the statute books, it would be possible to challenge it as an unconstitutional infringement of the "right of the citizens to express freely
    their convictions and opinions" guaranteed by Art. 40.6.1. Impossible to say how such a challenge might fare, and as I fully expect the blasphemy legislation to be repealed we will probably never find out.


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    #8
    Belfast
    Registered Users Posts: 1,355 ✭✭✭Belfast


    mickmac76 wrote: »
    Hi


    I noticed that some people on the brexit thread were saying that the referendum over in the UK was advisory and the government should ignore the results.

    As parliament is sovereign in the UK and they have no written constitution,parliament can pass any law it likes on the subject including overriding a referendum.
    Not so easy in Ireland with a written constitution and a supreme court that can declare laws passed by the Dail unconstitutional.


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