The Difficulty with Constitutions  


A friend of mine who lives in Ireland has drawn my attention to a very strange decision by the Irish High Court*. It relates to an application by the local Council for an order enabling them to demolish a house. The house was erected a few years ago by a woman as her family home. She has numerous children and needed somewhere to live. The house is in a very nice area. After all, it has been built in what we would call the green belt. The difficulty is that she knew that if she applied for planning consent, she would not get it. And so she just went ahead and built it anyway. Now, like me, you might think that the planning authority would have no difficulty in getting the order it requested. But we'd be wrong. And the reason is all to do with this lady's constitutional rights.

The Judge, Mr Justice Hogan, relies on Article 40.5 of the constitution. He quotes it as saying - “The dwelling of every citizen is inviolable”. And so he concludes that, even though built in contravention of planning law, a person's house cannot be demolished against the owner's will under (almost) any circumstances.

But the whole of article 40.5 actually reads -

“The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.”

And it is contrary to all the rules of construction to base one's interpretation on only one part of a sentence. If the authors of the constitution had wanted dwellings actually to be inviolable they did not need the second part of the article. On its own, 'inviolable' is like 'unique'. It either is or it isn't. There are no shades of grey. It can, though, be subject to a condition - and, even if clumsily expressed, the article clearly says that it ought to be limited to the extent to which the law provides to the contrary - democratically-decided planning laws included.

But even the Judge accepts that there cannot be absolute inviolability in the real world. The house might, for instance, be a danger to others. But by deliberately ignoring the second part of the sentence, the judge has to find a way of giving the word a meaning other than its natural meaning. To do this he has to pluck a principle out of the air – that it was not sufficient to look at what the planning law said, but whether it was appropriate and proportionate (European law concepts) to apply it in the particular circumstances of the case. And, of course, that's for the court to decide, taking on the role of a sort of superior planning authority.

In fact, though, society today would be unthinkable without a very limited 'inviolability'. When our ancestors decided to construct the canal system in the 18th century or the rail network in the 19th century, it was principally the big land-owners who were affected. Private Acts of Parliament were passed to enable the work to go ahead and to compensate them for the loss of their land. Today, we live in a much more highly-populated country and when there's a proposition for the building of new roads or HS2, there are many ordinary individuals who are affected. They have to lose not just a bit of land, but their homes as well.  Neither can we accept a free for all in matters of planning - to put up houses or factories wherever it takes the builder's fancy. And how on earth could we have a functioning police force if every home was inviolable even where there was reasonable suspicion that one of the inhabitants had comitted a crime. So then the Irish constituional concept of inviolability doesn't make much sense in today's society - at least as interpreted in this latest decision.

That's the difficulty with constitutions though. Although I am not against them per se, they do pose difficulties. Those who write them do so in the context of their time and the problems that have historically needed to be addressed. And so Americans still have the right to bear arms even though they no longer live in the Wild West. But the authors of constitutions cannot see how society will need to evolve when there are far more people about, far more buildings, and ways of living and doing things which would be unrecognisable to our ancestors. Not to mention big changes in our moral code. A constitution is an attempt by one generation to bind another based on the assumption that things will, essentially, remain the same. Imagine if we had had a constitutional requirement that only men who owned property could vote, requiring a two thirds majority to change it. After all it was, in the opinion of that generation, a perfectly rational view to hold.

Constitutions can be given near Biblical status and interpreted as if they contain all truth when they are merely the words of fallible men without any insight into the future.  They can become hostages to judges (secular theologians) who are prepared to override the democratic decisions – good or bad - of Parliament and extend the meaning of constitutional principles to breaking point. In doing so they can inflict collateral damage on the rule of law itself. There's an old saying “hard cases make bad law”. A judge who decides to reinterpret such a fundamental principle in order to take pity on someone who has clearly ignored the law (however many children they have), does democracy no favours.

If I were the County Council, I would appeal. But then obviously it's nothing to do with me.

Paul Buckingham

July 2013

*Wicklow County Council v Fortune


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