Ireland’s Citizens’ Assembly on Biodiversity Loss: Potential and Limitations for Deliberative Democracy
Ireland’s fifth Citizens’ Assembly recently completed voting on recommendations to improve the State’s response to biodiversity loss. Among its recommendations was a call for a referendum on environmental rights. While Citizens’ Assemblies have become a more regular feature of Irish policymaking, their role in the process of constitutional change is unclear. The latest Assembly may test the relationship between these deliberative mini-publics and elected representatives or prove the potential of citizen-led constitutional reform – writes Ursula Quill
In January 2023, Ireland’s Citizens’ Assembly on Biodiversity Loss finalised its report and recommendations for the Irish government. Among a series of sector-specific recommendations on how the State could overhaul its approach to biodiversity, the Assembly, made up of 99 randomly-selected members of the public, called for a referendum to constitutionally enshrine environmental human rights and the rights of nature. This recommendation garnered international attention from two camps: those paying attention to environmental issues and those considering the potential of deliberative democracy mechanisms like Citizens’ Assemblies to bring about constitutional change.
Citizens’ Assemblies have become a frequent feature of Irish politics and policymaking in the last decade, with five such bodies producing approximately a hundred recommendations, including for reform of controversial constitutional provisions. The first of these innovative bodies was the Convention on the Constitution (2012-2014) which, among other things, voted overwhelmingly that a constitutional referendum be held to allow for same-sex marriage. This facilitated the political establishment to gauge public support for constitutional change, giving them the confidence to hold a successful referendum in 2015. Similarly, the second Citizens’ Assembly (2016-2018) voted in favour of holding a referendum that would remove Ireland’s constitutional ban on abortion, which again broke the political deadlock on the contentious issue of abortion and resulted in another successful referendum. Ireland’s 2020-2021 Citizens’ Assembly on Gender Equality, which met entirely online, recommended a referendum on removing outdated constitutional language, increasing gender equality and protections against non-discrimination, and introducing a state obligation to support caregiving in the home and wider community. In 2017, the Citizens’ Assembly deliberated on how Ireland could be a leader in tackling climate change, culminating in a report considered by the cross-party Joint Committee on Environment and Climate Action and, in 2019, prompting Ireland to become one of the first countries to declare a climate and biodiversity emergency.
A new Assembly with a focus on biodiversity loss
The latest iteration of this deliberative democracy mechanism was the world’s first Citizens’ Assembly on biodiversity. The Assembly’s establishment was a commitment in the Programme for Government and was formed following a resolution passed by the two Houses of the Irish Parliament (the Oireachtas) in February 2022. The new Assembly’s terms of reference derived from the emergency declaration in 2019.
The Assembly met seven times since May 2022, and its vote to recommend that a referendum be held on environmental rights was taken at its meeting on 27 November 2022, carried by 83 per cent of members. This vote indicates a high level of engagement and concern by the citizens who took part in the assembly with the issues presented to them by 80 different expert speakers from agricultural, urban planning, industry, and education sectors and raised in over 650 submissions from members of the public. It also included presentations from members of the Children and Young People’s Assembly on Biodiversity Loss, organized by Irish research institutions, a welcome innovation which was complementary to the Citizens’ Assembly.
The government has yet to respond to the recommendation for a referendum, but experience from previous assemblies can give an indication of how it might respond. Positively, the Minister with responsibility for biodiversity, speaking at the UN Biodiversity Conference (COP 15) in December 2022, committed to integrating the work of the Assembly into the fourth National Biodiversity Action Plan which he intends to put on a statutory footing and thus greatly strengthening the biodiversity responsibilities of public bodies.
Citizens' Assemblies: transmitting the views of the public to politicians
Each of Ireland’s Citizens’ Assemblies was established under terms of reference outlined in a resolution of both Houses of the Oireachtas. The terms include the membership of the Assembly, the topics for consideration, its timeline, and its method of reporting back to the Oireachtas. The usual membership of an assembly is 100 people: 99 randomly-selected members of the public and an independent Chairperson selected by the government. The assembly may invite submissions from the public and its meetings involve hearing from experts on a defined topic followed by facilitated roundtable deliberations. The assembly reports to the Oireachtas, which in turn refers the report to a relevant Committee of the Oireachtas. The government responds to each of the assembly’s recommendations, and if accepting the recommendation, indicates a timeframe for implementation. This institutional design has meaningfully connected the deliberative sites of the Assembly and the Oireachtas.
There is no obligation on the government to implement any of the recommendations from the Assembly...
However, there is no obligation on the government to implement any of the recommendations from the Assembly, only that they be considered by an Oireachtas Committee. But, as seen from previous examples, the process tends to encourage the government to place considerable weight on certain matters and, more importantly, on the policy direction that may not otherwise have been considered by politicians. The Assembly report also has the capacity to move along issues that face political deadlock or inaction. In the case of the Assemblies on the Eighth Amendment and Gender Equality, special Oireachtas committees were established which allowed legislators to focus solely on the recommendations in a time-limited manner. The deadline of three months and nine months given to these committees respectively gave a sense of urgency on matters that otherwise might have lapsed to lower priority on the political agenda.
It remains to be seen whether a Special Committee will be established by the government to consider the Assembly’s report or whether it will be referred to a relevant existing parliamentary committee, for instance the Joint Committee on Environment and Climate Action, which in November published its own report on biodiversity. The experience shows that the establishment of a special committee to take forward the Assembly’s recommendations, as in the case of abortion, climate change, and gender equality, is the best way to ensure that the reports are given serious consideration by those elected representatives who are in a position to implement policy change.
People power or role confusion?
Professor Fiona De Londras previously analysed on ConstitutionNet how the Assembly on the Eighth Amendment, and Citizens’ Assemblies in general, function as an intermediate deliberative process, a mechanism which mediates activist demands and political caution on certain issues. The overwhelming support for constitutional change to Article 40.3.3 (previously enshrining the right to life of the unborn) was surprising to some politicians. But it was then less surprising that the Committee established to consider the Assembly on the Eight Amendment’s report would examine the proposals along similar lines to the Assembly once public opinion had been gauged on the matter. The Joint Committee on the Eighth Amendment dealt with each of the recommendations from the Assembly and, at an early stage in its deliberations, voted to not retain the Eighth Amendment in full, before ultimately voting for complete repeal.
How will the government respond to a recommendation for a constitutional referendum on environmental rights?
Recommendations for constitutional change were at least anticipated in the establishment of the Assemblies on the Eighth Amendment and Gender Equality, even if the extent of support for change was a surprise to some. The Assembly on Biodiversity Loss on the other hand was tasked with considering the biodiversity emergency and opportunities to improve the State’s response to biodiversity loss, with no invitation to consider constitutional issues. Therefore, the vote from the Citizens’ Assembly on Biodiversity Loss raises the question of how the Oireachtas Committee, and ultimately how the government, will respond to a recommendation for a constitutional referendum on the issue of environmental rights, when constitutional matters were not included in the terms of reference of the Assembly.
On the other hand, the government should not be wholly surprised that the Citizens’ Assembly has recommended a referendum on environmental rights. One of the main motivations behind environmental activists’ calls for an Assembly on biodiversity arose in the wake of a 2020 Supreme Court case successfully taken by Friends of the Irish Environment, in which the judgment clarified that a right to the environment could not be derived from the current Constitution. However, the Court stated that inserting a right to the environment into the Constitution would have the advantage of being subject to “debate and democratic approval.”
There is still a considerable way to go before a referendum on environmental rights might be called, first requiring a bill passed by simple majority in parliament. The Assembly vote has been welcomed by many concerned by environmental degradation, with some arguing that inserting environmental rights in the Constitution would provide a balance with property rights and with the recognition of corporations as legal persons. Others have urged caution on the potential unintended consequences of inserting new rights in the Constitution. These are arguments that no doubt will be debated politically in any referendum bill and in any potential referendum campaign.
A test case for future Citizens’ Assemblies
Deliberation in and of itself need not be democratic, and as some authors such as Lafont have argued, deliberative mini-publics may in fact be an evasion of democracy if overtaken by elite control. The emphasis of Citizens’ Assemblies is on building consensus through debate and deliberation, rather than on opening the means for citizens to call for a referendum. If anything, it is about placing an element of parliamentary control on those calls from civil society, or at least a vehicle by which they could be channelled. Rather than being a means of driving direct democracy, the Citizens’ Assembly has shown itself to be an enhanced form of representative democracy. Forms of deliberative democracy which flourished post-2011 in the wake of political and financial collapse may have assisted Irish politicians to better understand citizen concerns, or as Chairperson Dr Aoibhinn Ní Shúilleabháin put it at the Assembly’s meeting on 27 November, “to gauge the temperature in the room.” In that sense, Citizens’ Assemblies may be seen by politicians as assisting them to become better representatives of the people, but might not be a mechanism for citizens to spontaneously call for constitutional reform.
The large extent of executive control exercised in the establishment of the assemblies to date, in particular with regard to the possibility for constitutional change, indicates some limitations on the assemblies’ ability to independently drive constitutional change. So far, the potential of assemblies to drive constitutional change has been largely steered by the expectations outlined in their terms of reference. Other jurisdictions may foreshadow what is to come. In France, for example, the Citizens’ Convention on Climate went further than expected by politicians and many members expressed their disappointment by the lacklustre response from the French government. Members of the Irish Citizens’ Assembly expressed their desire to hear directly from the head of government on the implementation of their recommendations. The question remains whether those calls will be sidestepped by politicians or whether the Assembly, and future ones, will be taken seriously as an independent actor in Ireland’s constitutional reform.
Ursula Quill is a Doctoral candidate at the School of Law, Trinity College Dublin where she is researching the role of Citizens’ Assemblies in constitutional reform and co-chairing the TriCON Doctoral Conference. She previously worked for seven years in the Irish parliament.
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Suggested citation: Ursula Quill, ‘Ireland’s Citizens’ Assembly on Biodiversity Loss: Potential and Limitations for Deliberative Democracy’, ConstitutionNet, International IDEA, 31 January 2023, https://constitutionnet.org/news/irelands-citizens-assembly-biodiversity-loss