An amendment may be made to any part of Bunreacht na hÉireann, the constitution of the Republic of Ireland, but only by referendum. An amendment must first be approved by both Houses of the Oireachtas (parliament), then submitted to a referendum, and finally signed into law by the President.
Aside from constitutional referenda, the constitution also provides, in extraordinary circumstances, for a referendum on a normal bill known as the ordinary referendum, but none has yet occurred.
Procedure
Referendum
The procedure for amending the constitution is specified in Article 46. A proposed amendment must take the form of a bill to amend the constitution originating in Dáil Éireann (the lower house of parliament). It must first be formally approved by both the Dail and the Senate in practice the Senate only has the power to delay an amendment adopted by the Dáil. Then it must be endorsed by the electorate in a referendum.
A simple majority is sufficient to carry an amendment and there is no minimum turn-out required for a constitutional referendum to be considered valid. The vote occurs by secret ballot. A proposal to amend the constitution put to a referendum must not contain any other proposal. While United Kingdom citizens resident in the state may vote in a general election, only Irish citizens can participate in a referendum.
After being approved by referendum an amendment must be signed into law by the President. However, this is merely a formality as, provided the correct procedure has been complied with, the President cannot veto an amendment. The dates given for the amendments listed in this article are (unless otherwise stated) the dates on which each amendment was signed into law.
Historical methods
Historically the constitution has also been amended by two other means. The Transitory Provisions that formed a part of the constitution at its adoption in 1937 provided that for an initial four year period (from 1937-1941) the document could be amended by a simple act of the Oireachtas. The First and Second Amendments were adopted in this way. However, as a safeguard to prevent the wholescale change of the document after it has been approved en bloc by the people, the President of Ireland, was given the right to decline to sign a Bill amending the constitution until the amendment had been voted on by the people, if he believed the amendment materially changed the whole constitution. The President in office, Douglas Hyde, did not however refer any amendment directly to the people, but instead chose to sign all Oireachtas-passed amendments directly into law. The constitution stated that this power, and indeed the Oireachtas's power to amend the constitution without automatic reference to the people, automatically lapsed three years after the entry into office of the first president.
Since 1941, on the third anniversary of President Hyde's election when the Transitional Provisions lapsed, every amendment must follow a set process of creation: passage through the Oireachtas, followed by a public referendum. One partial exception to this, however, were the changes made to Articles 2 and 3 of the constitution in 1999. The Nineteenth Amendment, adopted by referendum in May, 1998, did not itself amend those articles but rather introduced, on a temporary basis, a special mechanism whereby the Government could order their amendment once it was satisfied that certain commitments made by other parties to the Belfast Agreement had been complied with.
List of amendments
Under Transitory Provisions
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First Amendment (1939): Extend the definition of "time of war" to include a war in which the state is not a participant. The motive behind this amendment was to allow the Government to exercise emergency powers during the World War II, in which the state was neutral.
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Second Amendment (1941): This was an omnibus amendment to a variety of articles aimed at introducing a variety of changes to the document, some significant and others minor, while still possible without the need for a referendum.
By referendum
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Third Amendment (1972): Permitted the state to join the European Communities.
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Fourth Amendment (5th January, 1973): Reduced minimum voting age from 21 to 18.
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Fifth Amendment (5th Jan, 1973): Removed reference to "special position" of the Catholic Church and to certain other named denominations.
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Sixth Amendment (1979): Provided that orders made by the Adoption Board could not be declared unconstitutional because they were not made by a court.
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Seventh Amendment (1979): Allowed the state to determine by law which institutions of higher education would be entitled to elect members of the Senate.
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Eighth Amendment (1983): Introduced the constitutional prohibition of abortion.
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Ninth Amendment (1984): Extended the right to vote to certain non-nationals.
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Tenth Amendment (1987): Permitted the state to ratify the Single European Act.
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Eleventh Amendment (1992): Permitted the state to ratify the Maastricht Treaty.
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Thirteenth Amendment (3rd December, 1992): Specified that the prohibition of abortion would not limit freedom of travel in and out of the state.
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Fourteenth Amendment (23rd December, 1992): Specified that the prohibition of abortion would not limit the right to distribute information about abortion services in foreign countries.
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Fifteenth Amendment (June, 1996): Removed the constitutional prohibition of divorce, but retained certain restrictions on its occurrence.
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Sixteenth Amendment (Dec, 1996): Allowed a court to refuse someone bail if it suspected they would commit a criminal offence while at liberty.
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Seventeenth Amendment (1997): Introduced provisions related to the confidentiality of cabinet meetings. This became protected unless, in certain circumstances, the High Court orders otherwise.
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Eighteenth Amendment (3rd June, 1998): Allowed the state to ratify the Amsterdam Treaty.
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Nineteenth Amendment (3rd June, 1998): Provided for the amendment of Articles 2 and 3 as required by the Belfast Agreement.
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Twentieth Amendment (1999): Provided that local government elections must occur every five years.
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Twenty-first Amendment (27th March, 2002): Introduced the constitutional prohibition of the death penalty, and also removed all incidental references to the death penalty from the text.
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Twenty-third Amendment (27th March, 2002): Allowed the state to ratify the Statute of the International Criminal Court.
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Twenty-sixth Amendment (November, 2002): Allowed the state to ratify the Nice Treaty.
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Twenty-seventh Amendment (24th June, 2004): restricted the right to Irish citizenship.
'Missing' amendments
It should be noted that there is officially no 12th, 22nd, 24th or 25th Amendment. Under the procedure for amendments the formal title of an amendment cannot be altered once it has been adopted by the houses of the Oireachtas. This means that where a number of amendments are put to the electorate on the same day, and one is rejected, an amendment number may be 'skipped'. For example, in November 1992 three proposed amendments were put to the people: the 12th, 13th and 14th. The proposed 12th Amendment was defeated but the 13th and 14th Amendments, which were approved, could not then be renamed.
List of failed amendments
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Third Amendment Bill (1958) : This was a proposal to alter the electoral system for elections to Dáil Éireann from proportional representation under the Single Transferable Vote to the British 'First Past the Post' system. It also proposed to establish an independent commission for the drawing of constituency boundaries on a constitutional basis. It was put to a referendum on 17th June, 1959 but defeated.
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Third Amendment Bill (1968) : This proposed to specify more precisely the system of apportionment in the drawing of constituency boundaries. It would have permitted rural constituencies to elected a disproportionate number of TDs (MPs). The proposal was put to a referendum on 16th October, 1968 but rejected.
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Fourth Amendment Bill (1968) (1968): This was a second attempt to alter the electoral system by abolishing proportional representation in favour of 'First Past the Post'. It was submitted to a referendum on the same day as the Third Amendment Bill and defeated.
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Tenth Amendment Bill (1986) : This proposed to remove the constitutional ban on divorce. It was put to a referendum on 26th June, 1986 but defeated. The ban on divorce was eventually lifted by the Fifteenth Amendment in 1996.
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Twelfth Amendment Bill (1992): This proposed to strengthen the constitutional ban on abortion by stating that an abortion could not be procured to protect the health, rather than the life, of the mother, and that risk to the life of the mother from suicide could not be grounds for an abortion. This was put to a referendum on 25th November, 1992 but defeated.
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Twenty-second Amendment Bill (2001): This proposed to establish a body for the investigation of judges and to amend the procedure for the removal of judges. It was not passed by the houses of the Oireachtas.
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Twenty-fourth Amendment Bill (2001): Would have allowed the state to ratify the Nice Treaty. This was rejected in a referendum on 7th June, 2001. Voters reversed this decision when they adopted the Twenty-sixth Amendment in 2002.
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Twenty-fifth Amendment Bill (2002): This was a second attempt to strengthen the constitutional ban on abortion and to prevent risk of suicide being invoked as grounds for an abortion. It was submitted to a referendum on 6th March, 2002 but defeated.
List of referenda
The following is a list of every referendum in the state since 19371. The Constitution of Ireland was approved by plebiscite in July, 1937 and every subsequent referendum has concerned a constitutional amendment. Dates given are those on which referenda were held.
Major subjects
The European Union
A number of amendments to the Constitution of Ireland have related to the European Union (and its predecessors). Before the state could join the European Communities the Third Amendment was necessary. Membership granted powers to European institutions which the 1937 constitution had vested in the Oireachtas (parliament) and the Government. It was also possible that many provisions of the constitution might in the future be found to be incompatible with European law. For these reasons the Third Amendment introduced a provision expressly permitting the state to joing the Communities and stating in broad terms that European law has supremacy over the constitution.
A number of subsequent amendments have been made to expressly permit the state to ratify changes to the treaties of the EU. This is because of a 1987 ruling by the Supreme Court, in the case of Crotty v. An Taoiseach , that major changes to the EU treaties require a constitutional amendment. Referenda have therefore been held on the Single European Act, the Maastricht Treaty, the Amsterdam Treaty and the Treaty of Nice. There has however, been debate among legal scholars as to whether or not each and every one of these treaties has been sufficiently far reaching as to necessitate a constitutional amendment.
Abortion
The Eighth Amendment introduced the constitutional prohibition on abortion in 1983. Opponents of abortion sought this amendment partly because of fears that the Supreme Court would in the future infer an implicit right to an abortion in the provisions of the constitution. The court had already ruled, in the 1974 case of McGee v. The Attorney General , that reference in Article 41 to the "imprescriptable rights, antecedent and superior to all positive law" of the family conferred upon spouses a broad right to privacy in marital affairs. It was feared that this right might be extended to include the right to an abortion. There was further concern that the Supreme Court might take its lead from developments in judicial review in other nations, such as the controversial ruling of the United States Supreme Court in the 1973 case of Roe v. Wade.
It was observed at the time of the adoption of the constitutional prohibition of abortion that its wording was very vague. Since its adoption a number of attempts have been made to modify the constitution in order to clarify the ban's precise implications. In particular there have been two failed attempts (in 1992 and 2002) to strengthen the ban, but two successful attempts to weaken its implications (both in December 1992).
The two failed amendments arose from a ruling of the Supreme Court in March 1992, in the case of the Attorney General v. X (more commonly known as the "X case"), that a mother is entitled to an abortion where there is a risk to her life from suicide. Opponents of abortion feared that this ruling could only be enforced in a way that would lead to a liberal abortion regime of the kind found in many other countries, such as the United Kingdom, but this has not yet come to pass (although the government has yet to legislate for the implications of the 'X' case). The Thirteenth and Fourteenth Amendments guaranteed that the ban on abortion would not compromise the right to obtain information about, or freedom of travel to avail of, abortion services available abroad.
Previous constitutions
Prior to the adoption of the Constitution of Ireland in 1937, the state was governed under two other documents: the Dáil Constitution of the short-lived 1919-1922 Irish Republic and the constitution of the 1922-1937 Irish Free State. Each used different formal procedures for amendment of the text.
The Dáil Constitution was enacted by Dáil Éireann (which was at that time a single chamber legislature) as an ordinary act of parliament. As a result it could be amended by simple vote of the legislature.
The Constitution of the Irish Free State originally provided for a process of amendment by means of a referendum. However the constitution could initially be amended by the Free State Oireachtas for eight years. The Oireachtas chose to extent that period, meaning that for the duration of its existence, the Free State constitution could be amended at will by parliament.
In theory, it was argued that the constitution could not be amended in a way with conflicted with the Anglo-Irish Treaty of 1921 ratified by both the United Kingdom and the Irish Republic. However the Statute of Westminster and legal judgments removed that restriction in the 1930s.
Footnote
- The "total poll" column in the table below gives the total number of votes cast, including spoilt votes. The percentages given in the "for" and "against" columns are derived from the total number of valid, or unspoilt votes. A green coloured row indicates a proposal approved by the electorate; red indicates a rejected measure. All data are taken from the official website of the Referendum Returning Officer [1].
Related topics
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