Spare a thought this morning for a group of people not usually in the public eye, namely the legal draftspersons. The amendment to the Constitution which is proposed in order to implement Ireland's part in the Northern Ireland settlement is cumbersome and complicated, because the situation it has to meet is untidy and unprecedented. I believe that a good job has been done in difficult circumstances.
The difficulty stems from two principal factors which distinguish the background to the proposed amendment from that of a straightforward domestic constitutional amendment, for instance those dealing with divorce, bail or Cabinet confidentiality.
The first difficulty is that the amendment has to be made provisionally, in that it is subject to the reciprocal changes being approved in the Northern referendum.
This element is not altogether unprecedented. Broadly the same situation existed in the case of each of the amendments necessary to cater for the intensification of the European Union, for example, the Maastricht Treaty (although, here, most of the other states or parties to the agreement did not have to have a referendum).
What was done in cases like this was to add to the Constitution such a sentence as: "The State may ratify the (Maastricht) Treaty".
The equivalent provision here is the part of the proposed amendment which states: "The State may consent to be bound by the British/Irish Agreement of 1998". Later the provision continues: "If the Government declares that the State has become obliged pursuant to the agreement to give effect to the amendment . . . then . . . this Constitution shall be amended as follows . . ."
The Government has thus made the hinge in order to ensure that Articles 2 and 3 are not changed if the Northern referendum is not passed, so that we are not left in the position of losing Kate and the baby.
What distinguishes the present amendment from those to enable Ireland to ratify say, the Maastricht Treaty, is that once the State had been empowered to enter that treaty, no further change was necessary.
By contrast, in the Northern Ireland amendment, the change happens to require the substitution of a new version of existing articles. It also has to make it clear that if the Northern referendum fails, then the status quo continues. And all this takes a lot of words.
The second major difficulty may be thought to stem from the fact that there are two categories of change embraced in the same amendment, namely those to Articles 2 and 3 and, secondly, those which are necessary to enable the North-South Council to come into existence. This second change is necessary because the Constitution vests all governmental authority here in our domestic institutions.
It seems quite likely that in the next few days we shall hear the argument from republican lawyers that putting two categories of constitutional change in the same amendment is unconstitutional. But this seems rather a lame argument.
In the first place, the wording of the constitutional provisions dealing with the power of amendment suggests that this is as wide as could be. The alternative argument is that there is some implicit limitation, to the effect that disparate subjects cannot be run together in the same amendment.
For example, the Northern Ireland package and the Amsterdam Treaty amendment could not be together in the same amendment. But even if there is such a limitation, it would seem not to be violated by the Northern Ireland amendment. For it is surely the case that a common theme links all parts of the package.
It is true that several provisions of the Constitution are affected; but this has been the case for lots of other amendments, notably EU ones.
What does link the elements of the Northern Ireland package is that each is to do with bringing peace to Northern Ireland and, secondly, that if any one of them is rejected then the agreement as a whole would fail. The second point is especially important. For it means that there is no difference between giving a person the opportunity to vote (say) No to the change of Articles 2 and 3 and, separately, Yes to changes to permit the North-South Council; and on the other hand, simply allowing a person to vote No to the overall package.
In either case the result would be the same: the Northern Ireland Agreement would not proceed.
It also seems likely that any challenge to the proposed amendment would fail because it would involve a ground on which a court would be reluctant to tread, in that it comes close to the merits of the amendment. It is, for instance, some distance away from the McKenna case on the funding of the divorce amendment. This concerned the expenditure of public money on only one side of the campaign. In contrast, any action on the present issue would be directed at the content of the amendment.
Again, one somehow feels that a court would be unlikely to interfere in a matter of such high political delicacy concerning Northern Ireland. For instance, the logic of the McGimpsey Supreme Court decision on the constitutionality of the Anglo-Irish Agreement was all against the agreement but, when it came to it, the court jibbed and found an unconvincing way of upholding the agreement.
David Gwynn Morgan is professor of law at University College, Cork