The people of the Republic will shortly be asked to approve the biggest single package of constitutional reform since the adoption of the 1937 Constitution, following yesterday's historic agreement in Northern Ireland.
They will be asked to change not just Articles 2 and 3, but also Article 29, in order to facilitate the deal. While the momentum to approve such changes will be great, nothing is certain. The changes are enormously symbolic. Politicians will worry that a coherent campaign against them might put the result in doubt.
It is the elements of the deal which fall into Strand Two (North-South relations) which contain the serious constitutional implications. And it is the amendment of Articles 2 and 3, long demanded by unionists, which will cause the most debate.
Nationalists have argued that amending the Articles will diminish the "birthright" of Northern nationalists to be considered part of the Irish nation, and will leave them stateless. However, the proposed new Article 2, published on this page, acknowledges the "entitlement and birthright" of every person born on this island to be part of the Irish nation. It does not, however, claim jurisdiction for the Irish State over the entire island.
The 1922 Constitution of the Irish Free State contained no definition of the extent of the State and had no counterpart to Articles 1, 2 and 3. However, a simple reversion to that position does not appear to have been considered.
Although Articles 2 and 3 have been the most talked-about in the context of the Northern talks, the amendments necessary to allow for the ceding of state power to North-South bodies are more complex. It appears that the Government could not agree to devolve any of its power to North-South bodies under the Constitution as it now stands. Article 6.2. of the Constitution states: "[The] powers of government are exercisable only by or on the authority of the organs of State established by this Constitution."
In addition Article 28.2. states: "The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government."
If a North-South body is empowered to make decisions without having them all approved by the Government or Oireachtas here, then it is doubtful that that body can be said to be exercising powers on the authority of the Government. It would appear therefore that a North-South body acting independently of the organs of State would be in breach of the Constitution as it stands.
The solution proposed in the deal is the same one used each time the Government wants to sign up to a new EU treaty. This is to amend Article 29, which specifically enabled the State to become a member of the EEC; to ratify the Single European Act; and to ratify the Maastricht Treaty.
The new proposed addition states: "The State may consent to be bound by the British-Irish Agreement done at Belfast on the . . . day of . . . 1998, hereinafter called the Agreement." It goes on to state that any institution set up under this new agreement can exercise its powers, irrespective of any other provision in the Constitution conferring those powers on other organs of State. This, in effect, is a fire-proofing clause ensuring that nobody can challenge the operation of North-South bodies by arguing that they are unconstitutional.
Such a clause is also inserted each time the State wants to cede power to the EU.
The final proposed addition to Article 29 reads: "The State may exercise extra- territorial jurisdiction in accordance with the generally recognised principles of international law."
The Government intends to put the proposed changes in Articles 2, 3 and 29 to a referendum as a single package of amendments to be either accepted or rejected in their entirety. This is the procedure which was followed in the Maastricht referendum, where several amendments to the Constitution were put as one single proposal. On the other hand, in the case of abortion in 1992, aspects of the issue were separated into three distinct questions.
The Constitution is not crystal-clear on the circumstances in which a number of amendments can be put as one question on a ballot paper. Article 46.2 states: "Every proposal for an amendment of this Constitution shall . . . be submitted by Referendum to the decision of the people . . ." The Government will argue that the changes in the three Articles in question constitute a single "proposal".
It is open to argument that changes in the definition of the Irish nation being made to appease unionists are a separate issue from changes to allow the State to participate in North-South bodies, and that there are therefore two separate proposals.
This will not be a straightforward referendum to change the Constitution immediately. Instead, the voters will be asked to vote for a "transitory provision" approving the necessary changes but making them conditional on all aspects of the deal, including the establishment of the North-South bodies, coming into force.
If this happens, the changes will have the force of law. If it does not, they will lapse after 12 months.