Vol. 68 No. 2
I move amendment No. 1:—
In page 6, Article 2, line 9, after the word "whole" to insert the word "island".
The object is to make clear here and there the territorial significance of the State and the area in which the State can have effective jurisdiction. Consequently, the word "island" is helpful there.
I move amendment No. 2:—
In page 6, to delete Article 4 and substitute therefor the following new Article:—
"4.. The name of the State is Éire, or, in the English language Ireland."
It is well that we should have it, not simply in English, seeing that the Irish text is the fundamental text, that "Éire" is used here and there.
It is rather a cumbersome name for the State.
It is a very short name. There is the equivalent in the English language.
I move amendment No. 3:—
In page 6, Article 5, line 23, to delete the word "Éire" and insert in lieu thereof the word "Ireland".
This is a consequential amendment. Deputies wished to have the name "Ireland" as an equivalent in English. A number of changes that occur are consequential.
Perhaps the President would explain how sometimes the word "State" is substituted for "Ireland". We could then get rid of these amendments straight away.
In most cases it is a question simply of not putting in "Ireland" throughout the text. When we come to that we will deal with it.
I take it that this amendment is an amendment to the English text only, and that it does not affect the Irish.
That is so. For example, in the case of the next amendment, there will be an amendment in the Irish text to correspond with it. The understanding, I take it, is that we should go through the amendments in the English form, and then make the Irish text correspond, and on the Final Stage have a comparison of the Irish and the English texts. That was what I was working on and what I thought was understood.
I should like to know how we stand upon that. I thought that suggestion was approved by the House. I am not doing this for the purpose of obstruction and will state my objection. I understand this House is solemnly to go through and pass each section of the Irish text.
What I had in mind was this: That as practically every Deputy was able to follow the discussion in English, and follow the English text closely, we should deal with the amendments in the English language and get finished with them, until we have what I might call the complete text in final form. When we have arrived at that stage, the House will be presented with an Irish text, supposed to be an equivalent. The equivalent will be tested by the House. There are on both sides of the House Deputies who are able to follow closely the English and the Irish texts and to see that the intention of the House is carried out in the English text and in the Irish text. For that purpose, it would be advisable, as the Deputy mentioned, to go through each text to see that the meaning is clear and that, as far as possible they would be precisely the same.
I take it that on each section of the Irish text the question that will be put to the House is: "That this section stand part of the Bill." I will tell you my objection to that procedure. I gather that there might be ten or a dozen Deputies capable of expressing an opinion upon that question and not more. I should say, roughly speaking, there would be about half-a-dozen Deputies on each side of the House, and that would mean that about 90 per cent. of the House would solemnly pass a series of sections which they did not understand. To do that solemnly would, to a certain extent, make a farce of the proceeding; that we should decide to pass something we did not understand and accept the verdict of an informal committee of six or seven. That would be abdicating our functions as Deputies. It might be better if a committee of the type suggested by the President was appointed to report to the House and then let the House pass some resolution as to the text. I would object solemnly to pass a thing we did not understand or to the passing of some other resolution that it is the correct text. We could pass a resolution, if it satisfies the President, that the Irish translation is the official text, but I do not think it is proper that the House should solemnly pass a series of sections that it does not and cannot understand.
Surely we are just as incompetent to pass a resolution as to pass the sections.
If the Deputy had followed me he would know that I corrected myself. I said that on consideration I was opposed to the danger of passing a resolution, but that we could pass a resolution that the Irish text is the official text for the courts. We do not say it is.
That is taking a tremendous risk.
I agree. The other proceeding to me seems absolutely farcical.
Everyone must be obliged for the point in Deputy O'Sullivan's remarks, that it is difficult, when a large section of the House is not sufficiently acquainted with the Irish language to be able definitely to express their own individual judgment on each Article. At the same time, I think we should make the Irish language the basic text. As Deputies know, we have sometimes to take authority for a number of things. We have to act. We appoint special committees very often and act on the report of these committees, trusting to their good faith. It may be argued that this would be carrying that principle further than would ordinarily be justified, and that objections might be raised to it on that account. I think we ought, if we are serious about trying to restore the Irish language to its fundamental position, in the case of a text like this make the Irish text the fundamental text. We can assure ourselves either by getting the opinions of scholars or by a committee as the Deputy suggested. We can get reasonable assurance as to the text.
Remember, what is going to happen in practice will be that for a considerable period I have no doubt the English text will be taken as conveying the sense of the Irish text—for example in the case of judges who do not know Irish—and it is only when there is a dispute as to the fundamental meaning that there will be ultimate reference to the Irish text. At an early stage I saw that difficulty and I suggested to the House that we should wait until we had the complete English text and then take whatever steps were considered best to get over the final difficulty. As to passing it section by section, I do not know that you need formally go through the act of passing the section, but simply approving of it if you like. If we want to deal with this in detail I suppose it simply means that we, at the end of each section, say, "Are you satisfied?" The question would seem to me to be, "Are you satisfied that that section does represent the intentions of the House as shown in the English text?" That would rather approximate to the question that should be put at the end of the section. If, on the other hand, there is a strong view in the House that we ought to proceed by some other course, I am open, naturally, to consider it, because the difficulty is a real, genuine difficulty and everyone must appreciate it.
I think most of us appreciate that there is no sensible way out of the farcical situation created by the decision to make the Irish text the basic text. The Gaelic League have got their pound of flesh.
It is not the Gaelic League. Even if there was no Gaelic League, as there is a policy agreed upon generally by the country that we do want to try to bring back the Irish language to its proper position as the spoken language of the people, assuming we are serious about it, here is an opportunity—we are talking about putting the names of streets in Irish and doing all sorts of things in Irish—to put the Irish text in its primary position and I cannot see how we can do that except by this means. I think Deputy MacDermot will admit that there are a number of things we pass in this House, things of which we individually have not convinced ourselves absolutely; we are depending very largely upon expert reports given to us, information given to us in various ways. There is the old example of the earth being round. The few of us who had the opportunity of travelling round it were pretty well satisfied it is so. So that in this case I do not think we will be stretching that principle abnormally far; perhaps I should not say abnormally, because we are stretching it a little beyond what is normal; but we are not extravagantly stretching it. I am sure that the Opposition as a Party can quite well satisfy themselves that the Irish text does correspond to the English text as far as two languages can ever really correspond one to the other. Similarly, on this side of the House, we are able to satisfy ourselves, and I think the Labour Party, too, if they want to approach it from that point of view, can satisfy themselves as a Party that that is so. It is a difficulty I see no way out of but this, either by means of an informal committee of members or by reference to experts. If the Deputy wants——
I only want to point out the rather farcical nature of the thing.
I have nothing to say to that. It is a just criticism that we are certainly going a distance from the usual practice.
It is only another element of humour in the Constitution. Before we pass from that I gather that the word "Eire" stays in the Irish text. Is that so when the word "State" occurs?
No. I might also point out that, of course, in this, if I might refer back to No. 2 again, both of these should be italics to make the name stand out both in Irish and English.
I move amendment No. 4:—
In page 8, Article 9, to delete Section I and substitute therefor the following new section:—
1.—1º. On the coming into operation of this Constitution any person who was a citizen of Saorstát Eireann immediately before the coming into operation of this Constitution shall become and be a citizen of Ireland.
2º. The future acquisition and loss of Irish citizenship shall be determined in accordance with law.
3º. No person may be excluded from Irish citizenship by reason of the sex of such person.
The purpose of this is to try to meet some of the criticism levelled at the section as it stood. I have tried to get over the difficulty in connection with this matter by trying to define the body of citizens but, as I pointed out already, that could not be easily done in the present circumstances; and the best we can do, to try and get a comprehensive catalogue at the moment, is to take over the existing position. That is the intention in the first part. The third sub-section is to meet the point raised by Deputy Mrs. Redmond's amendment, and I think it meets the point fully. There was a point about religion and class in Deputy Mrs. Redmond's original amendment, but I pointed out the difficulty I have with the word "class." I dislike seeing it anywhere in the Constitution, because I think it is too difficult to define. With regard to religion, we have met that by another amendment in which to make it quite clear we have separated the phrase about endowment of religion and made another one in which we make it quite clear that there is to be no discrimination and there are to be no disabilities imposed on the ground of religion. That will cover this as well.
No disabilities to the citizens, is it? No disability will be imposed on citizens on the ground of religion—is that it?
That is important. It is amendment No. 57:
The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.
It is quite general. It is not on any citizens. If the Deputy will look at amendment No. 57 he will see that:
The State guarantees not to endow any religion
and that,
The State shall not impose any disabilities or make any discrimination on the ground of any religious profession, belief, or status.
It is quite general. It does not refer to citizens.
I am not quite clear as to how this operates. Are we basing this fundamental Article of the Constitution on law?
On the existing position.
That is based on the existing law?
It is to an extent. It is taking over Article 3 of the old Constitution. It is more or less linked up with Article 3 of the old Constitution—taking over Article 3.
Is it not doing more than that? Is it not taking over the ordinary law as regards citizenship as well?
Yes.
That is rather a peculiar position for a Constitution to be in which is fundamental to all laws—depending on an ordinary law itself.
I think the Deputy will admit that in most Constitutions, in the nature of things, you have to allow that the future acquisition of Irish citizenship shall be determined in accordance with law. The question is that you have a certain body of citizens at the moment. You want to take that body over. It is really a question of defining what class, so that you may know who are citizens and who are not at the moment. It is not a question of saying that in future such-and-such shall be citizens. It is simply a question of taking over a class.
We are entitled, if we wish in future to change the position, to pass new citizenship laws?
You are, except that you have restrictions as to your liberty, namely, the restriction imposed there in Section 3º: "No person may be excluded from Irish citizenship by reason of the sex of such person." That is a definite restriction. There is also the restriction about religion contained in the amendment I have read, No. 57.
Then we are not taking over the actual provisions in the existing Constitution as regards citizenship?
No, we are not.
Well, that is not very much of a guarantee for anything.
You will have the same guarantee that the Dáil has now.
There is a question which I would like to put to the President. I do not know whether it is relevant. The case I have in mind is where an English woman or a French woman married a man domiciled in Ireland, say, in 1917. He got killed or died in 1920. Is his widow a citizen of this State or not?
I would not undertake to say straight off in any particular case that the Deputy would put to me.
This is a special case I have in mind.
I do not pretend to be able to answer that. I would have to be accurate about it. The Citizenship Act is one which takes over the body of citizens in Article 3. There are provisions made to deal with the situation that has arisen since 1923. There are certain marriage provisions in which, under certain circumstances, a foreign woman married to an Irishman can become, in a short period, a citizen.
In this particular case the man died in 1920.
I have just been informed by some experts that, in fact, she would not be a citizen.
So we do not know who is or is not a citizen by law.
I move amendment No. 5:—
In page 10, Article 10, to delete the word "Éire" wherever it occurs in the Article and to insert in lieu thereof the words "the State."
We have here the words "all royalties and franchises within that jurisdiction belong to Éire." This will read "the State." We have that definitely there. We could have put in "Ireland" of course with the same meaning as before, but it is considered that putting in "the State" there would, perhaps, be better.
The State is put in where there are legal rights, where there is any authority.
I would not say that. Sometimes it is a question of mere words. We are putting in "the State" sometimes and "Éire" all the time. In other cases if there was any possibility of ambiguity——
If you drafted that Article originally with the word "State," nobody would have thought of changing it to "Éire."
Sometimes it is merely the case that we are tired of "Éire."
No, it is because we want not to have a document full of repetitions and sometimes it is to avoid ambiguity.
I move amendment No. 6:—
In page 10, line 27, Article 12, Section 1, to delete the word "Éire" and insert in lieu thereof the word "Ireland."
This is the same as amendment No. 5.
No, it is not the same.
Well, if the Deputy wishes to——
I approve of it.
I move amendment No. 7:—
In page 12, line 16, Article 12, Section 3, sub-section 1º, after the word "incapacitated" to insert the words "to the satisfaction of the Supreme Court consisting of five judges."
There we have an amendment in substance. The question was whether the incapacity of the President was to be determined by the Council of State and it was considered, generally, after hearing some criticisms and so on here, that these words might be put in. I came to the conclusion that it was better to have the incapacity of the President determined by the Supreme Court consisting of a full court of five judges.
Who has the initiative in promoting an action of this kind?
I would take it the Government would have the initiative.
The Government only?
Any body or person that was affected by the President's complete inability to perform his duties. The Government would naturally be the body.
The President says "any body" might. Suppose a county council passes a resolution would that mean that this inquiry would have to be held?
They would have to apply to the court.
But we were told just now that any body can do it.
If one tried in a document of this sort to meet every possible circumstance we would have not a document of this kind but a document 30 or 40 times its length. We have to depend upon ordinary reason operating. At the moment I cannot think of any case in which any other body but the Government would take the initiative. If the Government that is responsible for getting certain things done finds that the President is incapable of performing the duties that are placed upon him to perform, it will take action to bring the matter to the court. There is nothing to prevent anybody else doing it.
But very vexatious applications may be made to the court in these circumstances.
Yes, but the court would dispose of them.
It would be very unpleasant for the President to have vexatious applications made to the court.
Perhaps the President is thinking of permanent incapacity. There is there a question of a man being deprived of his office and somebody succeeding him. But is there any similar provision made to deal with temporary incapacity?
No.
The President may remember there have been some very noteworthy cases in history, cases that have been extremely awkward. There have been cases of men in high positions, quite as high as the President of this State. There was a case of George III of England and Fredrick of Prussia who had the habit of getting temporarily insane. They did not get permanently insane. Is there any method provided in the Constitution for such a case? You have a method of dealing with permanent incapacity. Have you any method for dealing with temporary incapacity?
There is provision in the existing Constitution in the matter of the incapacity of the Governor-General. Supposing Mr. Buckley had been incapacitated——
He could have been removed immediately by the Government.
In one of the Articles provision is being made by which if the President fails to perform the duties which he has been performing, these duties would be performed in his stead. That does not meet the case where there would be discretion on the part of the President. But as regards that discretion, if he were temporarily incapacitated in the sense that Deputy O'Sullivan has mentioned, it would seem that his discretion would not be normal discretion.
The President is definitely meeting it in one case but not in a case that may very well arise.
It is not beyond the wit of man to deal with this, but there is no way in which we can determine that here. Just at the moment when he is deciding whether he will or will not give to the Taoiseach dissolution, there may be some aberration of one kind or another affecting his judgment. It may be of a physical character and it may affect him completely. You cannot get down to that and determine it.
The point is you may have a man incapacitated for a period of six months.
The moment you have a situation like that, it is within the power of the Supreme Court to be satisfied that he is permanently incapacitated from the point of view of doing his work.
Is there a provision to that effect?
Let us take the case of a man being incapacitated for six months. If a man, for instance, is held to be of unsound mind during that period, there would be action by the Government to declare him permanently incapacitated.
Why hang on to the word "permanently"?
As the Deputy knows, in a case of temporary incapacity the commission will act. The only question that we cannot satisfactorily determine is when his incapacity is of such a character that he cannot perform the act that is necessary. You cannot say that he has failed or is incapable of actually performing the act. If he is ill or unable to perform his functions, they can be performed for him. There is a certain difficulty in the matter. I take it that Deputy O'Sullivan was concerned with the case where a man would be mentally deranged.
And where it was obvious that might be temporary.
Unless he was insisting, notwithstanding advice given to him by doctors and others, on performing these functions, I do not think you would have to declare him permanently incapacitated. His work would be done for him over a period by the commission. You cannot pursue this thing down to the point of saying that if a man is subject to momentary delusions or fits he should be permanently incapacitated. It may be that just at the moment he is performing a vital function he gets deranged and he would not perform that function in the same way as if he were in his normal health. I think every ordinary thing is covered here.
I move amendment No. 8:—
In page 12, lines 22-23, Article 12, section 3, sub-section 2º, to delete the words "to discharge the function of his office established to the satisfaction of the Council of State" and to insert in lieu thereof the words "established as aforesaid".
This is merely consequential.
I move amendment No. 9:—
In page 12, lines 27-28, Article 12, Section 4, sub-section 1º, to delete the words "and is not placed under disability or incapacity by law".
The position is that if you leave these words in there without any qualification it would be open to the Legislature practically to exclude individuals or a class of individuals by legislation. Without these words it is safer in the case of a single person going for election before the people as a whole. There is little fear that any person will go forward or would have the slightest chance of election if he is of the type that would ordinarily be declared incapable by law; that is, a bankrupt or a person who was suffering imprisonment or who was guilty of corrupt practices or something of that kind. There was a long list, I think, in a previous amendment, indicating the type of disability. What I said in regard to that amendment holds here.
It seems to be very unsatisfactory. There are limitations upon persons who get elected to the Dáil and there are limitations on the classes who can hold office in the State. This is socially the most important post in the State and politically it is a position carrying with it great power and it seems to me that there certainly ought to be some limitation on the class of persons who should fill that position. It should not be open to any undesirable person to hold that position or be a candidate.
The Deputy is losing sight of the fact that the person must get nomination from 20 or 25 members of the Oireachtas, or four county councils. I think that is a sufficient safeguard that you will not have people who would be unworthy of holding office, going forward for election. In any case this is an election by the people as a whole and the people will be able to judge. If a man is guilty I am certain the people will be made aware of it and his chances of election are very slight indeed.
He might be elected and the Dáil, the President forgets, is elected by the people also.
You are not dealing with the same situation.
Exactly the same.
What is the use of trying to declare things that are obviously not comparable? The Deputy should remember that at least 30 members of either House will have to take responsibility for his nomination, or four county councils. Also, there would be only one or two or a few people up for election and you may be perfectly certain that if a man's character is not fairly good he will not be selected.
What is the advantage of leaving these words out?
There would be a danger in leaving them in. They might be used artificially to debar some person going forward whom the people might want to elect. There would be the possibility of the Legislature limiting the choice of the people.
In what way?
By passing a law which would disqualify some particular individual.
Tell us the type of law which might be passed which would hit at one individual and not at a class.
Or even a class. We had a great deal of trouble with regard to the possibility of women as a class being debarred. If you leave this clause in you could have a law which would debar a certain class.
The burden of proof lies on those who want these particulars in. I cannot find in the existing Constitution any similar provisions with regard to the Governor-General.
I doubt very much if the wording of amendment No. 10 is sufficient. The amendment reads:—
In page 14, line 3, Article 12, Section 4, sub-section 2º, paragraph i., to delete the word "one" and substitute therefor the word "either."
The section sets out "not less than 20 persons each of whom is at the time a member of one House." It is possible to strain that to mean that the whole of the 20 would have to be from one House. The difficulty is whether the words "each of whom" are suitable. It is quite clear that what is wanted to be expressed is that as regards the 20 persons who will nominate, each particular one of them, that you could read after his name "he is a member either of the Seanad or of the Dáil." I think that even with the word "either," you could possibly strain it into the meaning suggested by Deputy Donnelly.
Could we not say "not less than 20 persons, being members of either House of the Oireachtas?"
Or "each of whom is a member either of the Dáil or Seanad?" Is there any difficulty about that? The only difficulty I can see about it is that it expresses what you mean. Is there any other insuperable objection to it?
No. As a matter of fact, when Deputy Donnelly raised the point during the Committee Stage, I had some difficulty in seeing what his point was but, having got it, I do not know that the word "either" would fix it.
Would it be correct to say "a member of the Oireachtas," because you could just say "20 members of the Oireachtas?"
The word "member" is used in two senses. Each of the Houses would be regarded as a member of the Oireachtas in a certain sense, but before we come to the end of the Report Stage, we may be able to get a better form.
I would suggest "not less than 20 persons, each of whom is at the time a member of a House."
"Each of whom" may go with the class. At first sight, this looks all right and a person reading it ordinarily and knowing what is at the bottom of it will read it all right, but if you get into your head the idea that it might mean that when you have 20 persons down on the list they must all belong to the same House, what it conveys is that each one of the 20 will be a member of the same House.
Even as the words stand, trying to read that meaning into them, I could not do so because it seems to me that the words are perfectly plain, that they can be members of either House. That seems plain without any amendment, but if you have any doubts, which I cannot see, I would think that "a member of a House" would suit.
I agree with the Deputies who say that this looks all right, but if you think of this construction as being applicable to it, namely, that you have a nomination paper signed——
I do not want to interrupt the Minister, but surely if there were a second meaning, you would have to say "the same House of the Oireachtas." The very fact that the word "same" is not used makes it plain that it does not mean "same."
My advice is that, in the ordinary way, the first form was right. I believe that the word "either" does not improve it, and consequently, I will not move the amendment. Whatever difficulty there is, if there is a difficulty, I think it is not remedied by this proposed amendment, so I do not propose to move it. So far as the drafting is concerned, I think those who drafted this particular Article are satisfied that it does express the meaning, and that each one of the nominators would say, after his name, that he is a member of the Dáil or Seanad and the mixing up of these does not matter. It means that you can mix them up and all you want is that each nominator should be able to say, of himself, that he is a member either of the Dáil or Seanad.
"Each" is distributive.
I move amendment No. 11:—
In page 14, Article 12, Section 7, to delete lines 29 and 30 and substitute the words: "in the event of his predecessor's removal from office, death, resignation, or permanent incapacity established in the manner provided by Section 3 hereof, as soon as may be after the election."
This deals with the establishment of permanent incapacity to the satisfaction of the Supreme Court. It is more or less consequential.
I move amendment No. 12:—
In page 16, lines 6 and 10, Article 12, Section 8, to delete the word "Éire" and substitute in each case the word "Ireland."
This is of the type we already have. It is not necessary to say anything about it.
I was unable to be here at the beginning. You are substituting "Ireland" for the word "Éire." Why is that done in the rest of the Constitution and not in Article 5? It may be a small matter but it rather puzzled me.
The point is that in some cases there is no good reason other than that you do not want too great a repetition of the same word "Ireland". That is relatively trifling. In the second place, where there is any possibility of ambiguity as between the geographical term and the constitutional term, the name of the State, the word "State" is put in so as to avoid the ambiguity that would be caused by reference to the State, the effective jurisdiction of which does not extend over the whole of the geographical territory of the island, of Ireland.
I think that in Article 5 the word "Ireland" is substituted for the word "Éire".
Deputy Fitzgerald-Kenney means amendment No. 5.
The Deputy will find that there is no special point other than the one I have mentioned.
I move amendment No. 13:—
In page 16, line 12, Article 12, Section 9, to delete the word "Éire" and substitute the words "the State".
This is the same character.
This is intended to mean that he shall not go to Belfast without permission?
Shall not leave the State.
That means he shall not go to Belfast?
Shall not leave the effective jurisdiction of the State, whatever that may be at the time.
I move amendment No. 14:—
In page 16, Article 12, to delete Section 10 and substitute a new section as follows:—
1º. The President may be impeached for stated misbehaviour.
2º. The charge shall be preferred by either of the Houses of the Oireachtas, subject to and in accordance with the provisions of this section.
3º. A proposal to either House of the Oireachtas to prefer a charge against the President under this section shall not be entertained unless upon a notice of motion in writing signed by not less than thirty members of that House.
4º. No such proposal shall be adopted by either of the Houses of the Oireachtas save upon a resolution of that House supported by not less than two-thirds of the total membership thereof.
5º. A charge preferred by either House of the Oireachtas under this section shall be investigated by the other House.
6º. The President shall have the right to appear and to be represented at the investigation of the charge.
7º. If, as a result of the investigation, a resolution be passed supported by not less than two-thirds of the total membership of the House of the Oireachtas by which the charge is investigated declaring that the charge preferred against the President has been sustained and that the misbehaviour, the subject of the charge, was such as to render him unfit to continue in office, such resolution shall operate to remove the President from his office.
This "stated misbehaviour" is a slight improvement upon what existed before, but I think it a great pity that this very cumbersome mode of procedure should be adopted. If there has to be a trial under this, the result will bring the whole State into complete ridicule and, as well, the verdict given will carry very little weight. I think the President might very easily have the trial by five members of the Supreme Court just as he substituted five members of the Supreme Court for the Advisory Council dealing with the incapacity of the President. I think it would be far more satisfactory if there were an ordinary trial by five members of the Supreme Court of a President who was charged with a misdemeanour instead of this very stupid method of impeachment — entirely antiquated, old fashioned and bound, in effect, to prove unsatisfactory.
I do not think it would be right to have the trial before the Supreme Court on a matter of this sort. It is not a question of law or of the interpretation of law, but something wider in its character. Why should it be regarded as stupid? After all, the procedure of each House is at its own discretion and if there is a question of investigating a charge, it can by its own procedure arrange the method by which that is to be done. The use of the word "impeachment" does not necessarily mean that the procedure should be the same as that adopted in the British House of Commons.
What possible procedure is there?
Several modes of procedure suggest themselves at once. A special committee could be appointed to inquire into the questions of fact and the House could act on their report if it were necessary so to do. We need hardly deal with the methods by which the investigation would have to be carried out if such a case arose. You could have either a general procedure designed to cover all possible cases that could be imagined or you could have had ad hoc procedure.
You might have ad hoc procedure but what possible form could it take? The President has startled me by his suggestion that the facts might be investigated by a Committee of the House.
Why not?
Two-thirds of the House have to decide the issue. Each individual has, upon his conscience, to decide whether the President is guilty or not guilty of the offence with which he is charged. That the individual should act on the verdict of some other body — whether a Committee of this House or not— without having heard the evidence himself, that he should exercise the judicial function of condemning a man without having heard a single bit of the evidence upon which that man is to be condemned, would appear to me to be a terrible suggestion.
I think that it is very unlikely that this provision will ever be used. My difficulty is to see how the sort of thing we have in mind could be performed by the judicial bench. We are considering a case in which the President might, in the opinion of almost the entire country or, at any rate, of Parliament, have unfitted himself for his position by scandalous behaviour, which might not be criminal but merely disgraceful. He might be leading a scandalous life and Parliament might feel that it could no longer tolerate him in that position. If that were the case, I do not see what we could do except adopt some such procedure as is provided here. Though it may not be ideal, it is the best procedure that occurs to one's mind.
I do not think that that particular ipse dixit coming from that bench, without any reason advanced, has strengthened the President's position very much.
I do not agree with Deputy Fitzgerald-Kenney that this would be a scandalous procedure. If we were charged with the investigation of a particular matter, we could choose a committee which would go into details and furnish a report. That would not mean that any member who wanted to get further information would be debarred from getting it. It would be necessary to arrange for clearing up further questions which might be raised on the report and for any further examination which might be regarded as desirable. I do not think that we would be completely washing our hands of the matter.
I do not know if the President ever acted on a jury.
No.
Some members of a jury believe the evidence; other members do not. In a charge against the President of, say, scandalous behaviour, witnesses will be called. The credibility of these witnesses will probably be challenged by whomsoever is appearing on behalf of the President. The credibility of the witnesses will probably be the main point. The President may call other witnesses to contradict the witnesses who have been examined. Whoever is deciding the case will have to weigh up the probability of the stories and the credibility of the persons giving evidence. You cannot decide upon the statement made by a person unless you have seen him giving evidence. Nobody reading a newspaper account of a trial or even reading through the whole of the depositions in a criminal case would be in a position to form an opinion as to the guilt or innocence of anybody charged, unless he had himself seen the witnesses in the box and was able to decide from their demeanour whether they were truthful or not. For the whole House to decide, on the report of a committee that witnesses are, or are not, telling the truth would be completely wrong. I do not see how any such procedure could be adopted.
I am not denying that a conscientious member of the House would demand that he himself should be present at the giving of evidence before he would pass judgment.
We are all conscientious.
I am not suggesting that you are not. There are cases in which the facts would be so obvious that there would be no need for the type of investigation to which Deputy Fitzgerald-Kenney refers. But we are not prescribing any mode of procedure for the investigation of these charges. The House will be at liberty to devise, in any special case, a method which will enable it to come to a conscientious conclusion. I think that we can, with safety, leave the matter in that way. If I were to propose that the procedure should be along certain lines, the views put forward by Deputy Fitzgerald-Kenney would have much weight—that the only way that Deputies could effectively carry out their functions would be to sit as a jury and listen to the examination.
The President has had some experience here for ten years. Does he not recognise that this House is a particularly unsuitable body to act as a jury? Can he think of a more unsuitable body to act as a jury in what may be a political case? A political assembly is the last body that should be asked to investigate a charge against any individual mixed up in politics. To my mind, that is the principal objection to this proposal. The use of the word "impeachment" suggests a return to the idea of the High Court of Parliament.
In this case.
In another country, under whose influence we seem to be, Parliament has got rid of its judical functions. The ordinary members have placed these functions in the hands of a judical body because experience has taught them that they are not fitted for dealing with matters of this kind. I cannot think of any more unsuitable body than this House for dealing with a charge of this kind.
Would there be anything to stop Parliament from appointing not a parliamentary committee but a commission of lawyers to find the facts? Having got the facts, Parliament could then come to its own conclusion.
That suggestion is even worse than the other.
This is not a complete novelty. It has been the habit of Parliaments to deal, by parliamentary committees or otherwise, with questions affecting the honour of individual members. There have been cases where Parliament has done that by means of appointing a judicial or semi-judicial commission to determine certain definite questions and then, having got definite answers to those questions, Parliament has had to decide whether or not a case had arisen for taking action.
But we are dealing here with what is in the Constitution.
Is there any Deputy who suggests that the words "shall be investigated by the other House" mean definitely that that House would itself directly investigate, and that it could not mean that the House would cause to be investigated?
No, because the verdict must be given by a majority of the House.
We have two questions here, one, the mode of investigation, and the other the question of the final resolution. Suppose we had divided this procedure into two parts, and said, as I had suggested at one stage, that the charges should be investigated by the Supreme Court and on receipt of a report from the Supreme Court that the House by resolution should act. In view of a finding by a competent body that the charges had been sustained, would there be anything contrary to natural justice or to right in the House, by resolution, declaring that the person was incapable of holding office? I do not think so. I can imagine myself, at any rate, as a Deputy of this House, understanding that a certain charge was made against the President, listening to the report and to the finding, and satisfying myself that the investigation had been properly conducted, as well making any further inquiries that I thought necessary, coming to the conclusion that in view of that report the President was no longer fit to carry out the duties. I do not think that there is anything improper in that. As far as the resolution is concerned, and leaving the investigation aside for the moment, it seems to me that it would be by no means improper for the House, consequent on that report, to pass the resolution. With regard to the investigation, will it be held that according to our text here that the Dáil could not itself set up a body or commission to investigate the charge in detail and get its report? When the report came along for discussion questions might be asked about it. It might be sent back for further consideration. The clause, as it is set out here, does not, I think, preclude that.
I do not know what the law is, but it could not have that meaning. I was under the delusion that the President was asking our opinion. I withdraw my opinion.
The Deputy is not going to get away with it like that.
I gave it as my definite opinion that it could only have one meaning.
The Deputy said in the most authoritative way that the ordinary plain meaning was——
That was my opinion.
The Deputy did not qualify it. At any rate, we can get ahead. The position is that my opinion as to the ordinary meaning of it happens to differ from Deputy O'Sullivan's. This is a matter in which I would be guided by an expert draftsman. I would be the first to acknowledge I was wrong if he said that this view was not the meaning which lawyers would take out of it.
The President has stated categorically that in the circumstances he refers to he would be the first to admit he was wrong. What he really meant to say was that that was his opinion.
It is by no means clear whether a sub-committee could be appointed by the House to make the investigation. The words here are "shall be investigated by the other House." The natural interpretation of that would be "shall be investigated by the whole House." Let us assume that there could be read into this that the House could investigate by means of a sub-committee, and I question very much if it could, it certainly could not be investigated by anybody else. There is the sound legal principle delegatus non potest delegare, that is, that a person appointed to do a certain thing cannot appoint somebody else to do his job for him. Personally, I do not think that the House could appoint a sub-committee to investigate. Of course, the question may be argued the other way, but I think the investigation would have to be by the whole House. If the contention that it could be done by a sub-committee is right, at any rate it certainly could not be done by anybody outside. In that case you cannot then read in with paragraph 7: “as a result of an investigation by the House.” The whole House votes, and there must be a two-thirds majority, so that each member of the House has got responsibility for saying “guilty” or “not guilty.”
I wonder is that quite right? It says: "If, as a result of the investigation, a resolution be passed, supported by not less than two-thirds of the total membership of the House ... by which the charge is investigated, declaring that the charge against the President has been sustained."
That is a verdict of guilty.
You say that the charge has been sustained after its investigation, but it does not pretend to say further than that. The individual, with the information at his disposal, is able to judge of that himself.
As a result of the investigation made by the man himself.
Suppose a report came along and that each member conscientiously read it with any evidence that was given to him in the report as to what was alleged. He would take the report and say: "I am reasonably satisfied, in view of the people who have investigated this charge, that, in fact, it has been sustained." I see no reason why he should not vote that the President was no longer fit for office by reason of the fact that a body of men appointed for the purpose had investigated the charge and found that it had been sustained. He could arrive at that decision as reasonably and as conscientiously as we can reasonably and conscientiously do most of the things that we have got to do in life. Each member would have to be the judge of that himself. At any rate, the final resolution is one which is passed by people who would have got some report on the matter, and who would say: "Very well, in view of that report, which we think is a just report, we think the charge against the President has been sustained and that he is no longer fit for office." At one stage, I thought we might put in "shall cause to be investigated," but I do not want to limit the power of direction there. I think that if you wanted to remove doubts, you would have to put in both phrases. You would have to say "investigate or cause to be investigated."
Or "investigated by or under the authority of."
The view we took about this was that the responsibility of having the matter investigated lay with the House; that the House would design its own procedure, either in general terms in advance or else that it would design its procedure to meet any particular case. Of course, the method might have to be different in different cases. For instance, the matter concerned might be something which was so notorious and so well known that there could be no doubt or question about it.
Well, I know that it is useless in pressing this any further, but I venture to predict that if ever any case of this nature comes up and is tried otherwise than by the whole House you will have the most extraordinary thing happening. You will have the High Court asked to mandamus Parliament. Parliament, having constituted itself a court, you will have the High Court asked to mandamus it; or rather, with regard to the Parliament, it may be a question of quo warranto as to what power it had to appoint a sub-committee. Anyhow, you will have the extraordinary thing of the courts going over the court in Parliament, and you will have a very nice constitutional issue. I say that you are hanging on to an obsolete procedure for no purpose.
I should like to make a concrete suggestion to the President, and that is that in sub-section 5º of the new Article, after the word "investigated," you could put in the words "or under the directions and authority of."
Or if you put in "or by a tribunal consisting of judges," that would satisfy the case, I think.
Yes. I think it would be easy to fit in some words there that would meet the case.
Well, I shall consider that again. We will have an opportunity later on of dealing with it.
Can we do that?
Can we do that, Sir? I mean, can we refer to this again at the end, for instance?
I suggest that, to meet such points as that now raised, the procedure at the conclusion of this Stage would be to report the amendments and adjourn the debate on the Report Stage. This would give an opportunity for meeting such points as the one that has now arisen. Such amendments, if any, could be taken before the Irish version is considered.
I hope that the Irish translation will be ready.
Oh, yes. I am sure it will be ready.
I mean, I hope that the original will not hang very long after the translation.
The method of procedure which you suggest, Sir, will suit me admirably, if it can be adopted.
It can be adopted.
Well, Sir, before we pass from this, I should like to ask whether the Deputies who have been discussing this matter from the opposite benches have any difficulty: in other words, supposing we are able to meet their suggestions with regard to the words proposed to be inserted by Deputies MacDermot and Fitzgerald-Kenney, will there be any further difficulty in connection with Section 7? As I see it, there will be two other methods that might be regarded as alternative to this procedure. One would be to let the investigation be by the Supreme Court. I dislike that by itself. I think that, if judgment is to be pronounced on the President, it ought to be by the people's representatives —the people who have a direct and definite responsibility and who, in the periods between elections, do represent the people and their authority. Now, that is one procedure — the Supreme Court by itself. The other alternative would be to lay the responsibility of the investigation of the facts on the Supreme Court, whilst leaving to the Parliament the responsibility for the final resolution on receipt of the report. Now, we changed from that idea of the Supreme Court being the body to investigate the facts, to the House itself putting the responsibility of investigation on the House itself — as far as I was concerned, on the idea that the House could design the procedure which would meet a particular case — for instance, if there were a number of lawyer members on both sides of the House, they could select a number of lawyer members who understand the rules of evidence and who would understand what was meant by a proper judicial inquiry into a case— but that it was on their report they would act. I should be very glad if we could come to some agreement about this.
I may tell the President that, so far as forms are concerned, I do not grumble in the slightest. As a matter of fact, I think that, very often, too much importance is attached to forms, and if there was a finding by a tribunal of judges on the question of whether the removal was made by a tribunal of the House, I would have no objection to it.
If what you have in mind is investigation by an outside tribunal, it is a question whether there is any point at all in the provision that the charge preferred by one House shall be investigated by the other House. If a tribunal is to be appointed, I think there is no reason why it should not be appointed by both Houses acting together.
You see, this is the result of a certain evolution. If we were, in express terms, to say that the charge should be investigated by the Supreme Court, we probably would not have this machinery as it is here exactly; but we have put the responsibility of investigation on the House other than the House by which the complaint is made, and I think that if we can make sure that that House can set up a sub-committee or see in what way it can set up a tribunal on receipt of the report, or cause the matter to be investigated, then we have only slightly to modify Section 7 so as to fit in with these conditions. I do not think it would be wise to specify that the Supreme Court should investigate the charge. I think we should leave it to the House to decide what the tribunal should be. I think we could, at this stage, postpone discussion of this matter until a later stage. The Ceann Comhairle informed us that we could leave it over for an interval and take the matter up again.
Well, of course, we cannot leave the amendment in the air, so to speak. It must either be disposed of or withdrawn.
Could we not deal with it later on?
It can be dealt with, but as it stands now it must either be disposed of or withdrawn.
Very well, Sir. I withdraw the amendment on that understanding.
I move amendment No. 15:
In page 18, line 30, Article 13, Section 6, after the word "commute" to insert the words "or remit" and after the word "commutation" to insert the words "or remission".
The purpose of this amendment is to make sure that there is both remission and commutation. I do not think there is any special point in connection with this amendment.
I move amendment No. 16:
In page 20, line 14, Article 13, Section 8, sub-section 1º, after the word "Oireachtas" to insert the words "or to any court".
This is simply an amendment that I indicated, on the previous stage, I would bring in so as to include any court.
I think we had better leave amendment No. 17 over, as it would be consequential on the other amendment. It might be better not to move it now as some change might be necessitated in it by the other amendment we have left over.
I move amendment No. 18:—
In page 20, line 26, Article 13, Section 9, after the word "provided" to insert the words "by this Constitution".
This is to meet a point which Deputy Norton put forward. It makes the text somewhat clearer than it otherwise would be.
I move amendment No. 19:—
In page 22, lines 8, 9 and 10, Article 14, Section 1, to delete the words "to the satisfaction of a majority of the members of the Council of State" and substitute the words "in the manner provided by Section 3 of Article 12 hereof".
This is consequential on the change in regard to the incapacity being determined by the Council of State. I think there is no point that needs to be explained in connection with the matter.
I move amendment No. 20:—
In page 22, line 14, Article 14, Section 1, to delete the word "of" and substitute the words "conferred on" and to delete in the same line the word "under" and substitute the word "by".
We had certain difficulties about the interpretation of the word "under" and it was considered better to have the word "by" inserted instead. You will find that in a few cases we are using the word "by" instead of "under" where it is definitely applicable.
I move amendment No. 20a:—
In page 24, Article 14, Section 3, line 1, after the word "number" to insert the words "and may act notwithstanding a vacancy in their membership."
This is simply to cover a case where there might be a possible vacancy in the membership of the commission which is to act. For example, you might have a vacancy where some question of a dissolution or something of that sort arose. This is to make sure that the commission could act notwithstanding the vacancy in the membership. They could act by two of their number — there are three in all — if two agreed to act, and then the act of the commission would be valid.
I move amendment No. 21:—
In page 24, line 4, Article 14, Section 4, to delete the word "of" and substitute the words "conferred on", and in line 5 to delete the word "under" and insert in lieu thereof the word "by".
This is exactly the same point as arose in a previous amendment.
I take it that this is to delete the word where it secondly occurs?
Yes.
I move amendment No. 22:—
In page 24, line 11, Article 14, Section 5, before the word "apply" to insert the words "subject to the subsequent provisions of this section", and at the end of the section to add the following new sub-section:
2º. In the event of the failure of the President to exercise or perform any power or function which the President is by this Constitution required to exercise or perform within a specified time, the said power or function shall be exercised or performed under this Article, as soon as may be after the expiration of the time so specified.
The purpose of this amendment is to provide that the failure of the President to act will not be clear until the time within which he is to act has passed. We want to make certain that the passage of time does not invalidate the action of the commission which would perform these functions instead of the President. The amendment states that "the said power or functions shall be exercised or performed under this Article as soon as may be after the expiration of the time so specified." The point is that a certain time is allowed for the signing of Bills, etc. Suppose the President had failed to act, his failure could not be determined until the period had passed. Then the question arises as to whether the commission, notwithstanding the fact that the period had passed, could act. To make it quite clear that they could act, we are inserting this new sub-section.
I am puzzled in regard to how this clause will work out in practice. Suppose the President refuses or neglects to sign a Bill, then the Commission comes into action, I understand, for the purpose of signing that Bill after the period has elapsed. Does it then continue in action or does it cease, or have you got the extraordinary state of affairs that the President is exercising the powers of President for some purposes and the Commission is exercising them for some others? If the President fails to act and the Commission comes along, does it continue to act through the continuance of his Presidency or what happens? I am trying to understand it and to visualise what will happen. It seems to me that you will have the Commission acting as President, and you will have the President acting as President, because there is nothing which terminates that situation. The incapacity of the President is simple enough because as soon as it has been found by the High Court that he is temporarily incapacitated, the Commission gets to work. I take it then that the High Court — I do not really know who determines it but probably it will be the High Court — determines as to whether his incapacity has ceased. I do not know whether that is the procedure to be adopted. Though that may give rise to some difficulty, it does not seem to me to be unsurmountable but I think this is altogether too vague as far as the "failure" end of the question is concerned because it is arguable that one failure to act may mean that for the rest of the seven years, you may have to put a Commission in his place. I know that is not the intention but I am not on the question of intention. I am on the question of how the thing is going to work in practice. It seems to me that there will be some very big difficulties arising out of this matter.
That is a matter that will have to be watched very carefully. The intention is to give effect to the actual words inserted here. However, we can have another look at it in the interval and see, if by any chance, it may not work out in the manner desired. The intention, as the Deputy is aware, is that if there was a particular failure in regard to a particular act, the Commission would step in and perform that act. If there was a succession of failures, they would nevertheless continue to act in the same manner until such a period had elapsed that it was quite clear that something had gone wrong with the machinery generally and that the measures that were designed for dealing with a temporary or momentary business, were being used as a permanent arrangement. There would have to be certain measures taken to deal with that case. It could happen, as the Deputy suggested, that you would have the Commission performing certain acts for the President and at the same time he himself might be performing other acts which he was willing to perform. We are dealing with what is obviously an abnormal happening in this case and we only want to provide that in the case of such an abnormality the machine would not be brought to a standstill. It may appear a bit extraordinary that you should have two persons— using the word "person" to cover the body, the Commission — performing the same type of act, but that would be altogether abnormal, and when we are dealing with abnormal situations we may expect that there will be some abnormal things happening.
Ordinarily, of course, what is going to happen is that the President is going to perform his functions; that he is going to keep his oath; that he is going to act for the purposes for which he was put into office. But you have to provide for the possibility of individual failures, or something of that kind, and the provision is made here. Again, we cannot possibly arrange for everything that might conceivably arise, but we have to see, at any rate, that the duties which are necessary for the validation of Acts and so on will be performed, and that the work of the State will go along, even though it seems to be going along with two bodies for the time being where there ought to be only one. I think the Deputy will admit that that would not be allowed to continue for any length of time. You would have to get rid of the President if he continued to act like that.
I wonder how you would get rid of him?
I do not know whether it would be for stated misbehaviour.
I still think the very great difficulty is whether this Commission might continue to work, because there is nothing which terminates the power of the Commission. It is really as much under Section 1 of Article 14 as it is under this new section that it arises. There does not seem to be anything to terminate the action; once they have come into action there does not seem to be anything that puts them out of action again.
But surely it is only in the event of his failure they act at all.
In the event of his absence or in the event of his temporary or permanent incapacity. Those things pass away. When he is no longer incapacitated, then of course their functions do not exist, but, in the event of his failure to exercise and perform his powers and functions, who is to decide as to whether he is willing again to exercise and perform the powers and functions? That is my difficulty. Perhaps he may not be. Perhaps he may be.
Of course, in the case of anything in the form of permanence, resignation, death or anything like that——
Those give me no difficulty.
That is what I thought. The difficulty, I take it, is that, when there is some individual failure on the part of the President to perform an act, the Commission comes in and performs that act for him. Next day, he may be ready to perform his functions as before. Now I take it—I am saying what I believe to be here; we will have it examined to see if there is any further point in what the Deputy says—that if, immediately afterwards, he performs that act, then the Commission has no right or power to perform any functions. He is performing the Presidential functions. The Commission has power only in the event of his failure to do that. If he does not fail they have no power.
If he does not fail, of course the commission does not come into being at all. Leaving out the unnecessary words, it says here that, in the event of the President's failure to exercise and perform the powers and functions of his office, or any of them, "the powers and functions of the President under this Constitution shall be exercised and performed by a commission." As this stands, it would seem to me that once there has been a failure to exercise and perform the powers and functions of his office, the rest of the Presidential powers and functions of his office are in the commission, and that the commission exercises them for the rest of his presidency. That seems to me to be the meaning of this as it stands.
It is certainly not the intention.
He might fail to perform his functions. A Bill might come up to be signed, and he might forget it. Anybody may be guilty of an oversight. Then the commission might come in and sign it if the time were up. He simply failed to perform that act through an oversight, but it never would be the intention that he should cease to be President?
No.
It is merely a question of drafting. Of course those are abnormal things, but abnormal things happen.
I agree, and I am quite glad that the Deputy has raised the point. It is vital that the intention should be clear, and the intention undoubtedly is that the commission should only perform the individual acts which the President fails to perform, and that there should be no suggestion of the commission coming in, so to speak, to replace the President. As far as I can see from looking over this, it seems to indicate that that is the intention. On the other hand, by a bit of a strain it might possibly bear the interpretation which the Deputy suggests.
It is really more Section 14, 1º than this.
I am looking at 14 1º. I will have that matter examined carefully from that point of view.
I move amendment No. 23:
In page 24, lines 26 and 27, Article 15, Section 2, sub-section 1º, to delete the word "Éire" and substitute in each case the words "the State".
This is only the same as we have had several times before.
I move amendment No. 24:
In page 30, line 25, Article 16, Section 1, sub-section 2º, after the word "citizen" to insert the words "without distinction of sex".
This simply makes it clear that no person would be disqualified on the grounds of sex.
I move amendment No. 25:
In page 30, Article 16, Section 1, to insert before sub-section 3º a new sub-section as follows:—
No law shall be enacted placing any citizen under disability or incapacity for membership of Dáil Eireann on the ground of sex or disqualifying any citizen from voting at an election for members of Dáil Eireann on that ground.
This is to make explicit what I think was already implied in the draft which we had—the fact that there should be no law placing any citizen under disability or incapacity on the grounds of sex, or disqualifying any citizen from voting on that ground. It is simply to meet a point raised by one of the Deputies on the opposite benches in connection with Article 16. There was a general right that they would have irrespective of sex, and then there was a clause dealing with disqualifications to be made by law. It was thought important that those disqualifications could not be made on the grounds of sex.
I move amendment No. 25a:
In page 36, lines 15 and 16, Article 18, Section 4, paragraph (iii), to delete the words "by the electorate hereinafter specified" and in Section 7 to delete lines 25 and 26; and in line 27 to delete the words "such members" and insert in lieu thereof the words "the members of Seanad Eireann to be elected from panels of candidates"; and in line 28 after the word "formed" to insert the words "in the manner provided by law".
Deputies will remember that there was an amendment from the opposite benches, the purpose of which was to leave to law the whole question of the composition of the Seanad. I resisted that on the ground that the more we could put into the Constitution the better, so as to give a certain stability to the Parliament. On the other hand, a good deal of dissatisfaction has been expressed with regard to the electorate, and I do not think we lose anything by leaving that over to the law. Deputy MacDermot, I think, has an amendment here providing a different method, and I think, on the whole, we lose nothing by leaving the question of the nature of the electorate —the manner in which the members who are on the panel should be elected —to the ordinary law. If we had a really satisfactory suggestion I would naturally desire to see it in the Constitution, but I think nobody can say that we have got any really satisfactory suggestion as to the method of electing the Seanad. That was one of the difficulties which I pointed out when we had those debates about the Seanad originally. We are now up against trying to get a satisfactory electorate. This was one of the suggestions in the commission's report. I thought it was better than the Dáil for the reason that I gave on the Committee Stage, but I do not think it is sufficiently good to stereotype it and to make it permanent in the Constitution.
I am glad the President has decided to drop the clauses about the electorate which was to choose from the panels for the Seanad, because I think those clauses are the most unsatisfactory part of the entire Constitution; but I admit that the question they are attempting to solve is also, perhaps, the most difficult question in the entire Constitution. It is an extremely difficult problem to get a satisfactory electorate to choose from those panels. I am very glad, too, that the President has decided to retain the general scheme of panels in the Constitution, where I think it ought to be. I think it would be farcical to introduce a Constitution, creating a balanced system of two Houses of Parliament and a President, without giving an outline of the nature of one of these Houses. I have amendments down in connection with the electorate. We discussed one already, namely, the substitution of the Dáil for this combination of candidates elected to the Dáil and candidates not elected. I felt that the other amendment was impossible of acceptance before a general election, whatever chance there might be after a general election. I am, therefore, exceedingly pleased that the question should be left over. My feeling is that, if you are to have a Seanad which is not to function mainly on Party lines and with Party motives, the electorate to choose it should be a small one and a select one. Therefore, I made the proposal in the amendment, that it should be a selection commission consisting of "not less than seven and not more than 12 persons appointed by the President none of whom shall be a member of Dáil Eireann." Those who, at first sight, might be inclined to resist that should remember that, after all, other Second Chambers have functioned not altogether unsuccessfully with considerably less democratic methods of appointment.
There is in Canada, I believe, a system of nomination the particulars of which I have forgotten. In Great Britain you have always appointments to the Second Chamber by nomination of the Prime Minister. In the amendment it is proposed that selection from the panels should be not by the Prime Minister, and not even by the President, who is supposed to be a non-political authority—and whom I would therefore prefer to the Prime Minister for the purpose—but by a commission consisting of a small number of what I hope will be highly-qualified and independent persons appointed for the purpose by the President, with a full sense of his responsibility to the State as a non-political authority at the time of the appointment.
If the President had accepted my amendment now, it would, of course, have added fuel to the flame being ignited all over the country with regard to the alleged threat of dictatorship by the new functionary, the President. Therefore, I saw plainly when I put it down, that he could not accept it. It may be that in another Parliament, whatever Government may be in office after this election, some plan of this kind will be seen to give the best chance of getting a selection made from the panels on a non-political basis. All those interested in the question of the Seanad, bodies connected with trade, commerce and finance, that have been thinking about this matter during the last few weeks, have invariably felt that there was little chance under the provisions of the Constitution, as it stands, of getting the right men selected from the panels. I am glad the clauses about the electorate have been dropped, and I hope the wisdom of the next Parliament will provide a more satisfactory solution.
I move amendment No. 26:
In page 36, line 29, Article 18, Section 7, sub-section 1º, before the word "knowledge" to delete the word "practical" and to insert before the word "experience" the word "practical".
I am simply putting in the word "practical" to qualify "experience" rather than "knowledge". I do not think there is a great deal in it. The wording will look better in that form.
I move amendment No. 27:—
In page 38, Article 18, Section 7, to delete sub-sections 2º, 3º, 4º, 5º and 6º and substitute a new sub-section as follows:—
"Not more than eleven and, subject to the privisions of Article 19 hereof, not less than five members of Seanad Eireann shall be elected from any one panel."
This amendment is really consequential on the dropping of the electorate in amendment No. 25a. We want to retain, however, the restriction, "not more than 11, and, subject to the provisions of Article 19 hereof, not less than five." We want to make sure that the number capable of being elected from each panel shall be less than five and not greater than 11. That restricts the possibility of juggling with it for the purpose of getting any party advantage.
Am I to take it from the intended amendment that there is to be unanimity in the size of the panel?
No.
Is it that every panel shall contain 11 members or five members, or that one panel may have one number and another panel another number?
It refers to the number elected from the panel, and not the size of the panel.
I wish the Deputy would not interrupt. The amendment says that not less than five members and not more than 11 shall be elected from any one panel. Does not that rather suggest that every panel is to have equality in the number?
That is not suggested, and if there is any point in that I would have to have the text before me to satisfy myself completely about it. Originally we had an amendment to the effect that from the panel you were restricted in choice to this extent that not less than five persons could be elected from one panel and not more than 11. We would have to have the whole scheme back again to see the full effect. When dropping the electorate we wanted to preserve that one condition, the purpose of which is to prevent the Legislature in its laws from juggling around with numbers in the panel, giving what would be unfair representation to one panel and denying just representation to another panel. The intention was to have any number which would fit in. I had to work it out for myself to make sure that it was workable. I had worked out a scheme by which we could say that law would be brought in to follow the provisions of the Constitution. I worked out the number under various panels, and I think I gave an illustration in Committee of the need for a certain amount of inequality.
I said the universities are given six members. Presumably the professions and education will be fairly well represented on their selection. Hence there does not seem to be as good a reason for giving on the education panel as large a number as there might be, for example, for giving labour or industry or agriculture. Again, as to public administration, there does not seem to be as good a reason for giving as large a representation to public administration as there would be for giving it, say, to agriculture or to labour. I wanted to provide for inequalities within a certain range. We were leaving it over to law to determine the exact numbers to be elected from each panel, but we wanted to restrict the law so that it would not be open to the Legislature to say: "We will only put on half-a-dozen, say, from agriculture, and we will put them on from labour," or "We will give only one for labour," or something of that sort. We wanted to provide for inequality within a reasonable range, and the five and the eleven were a range within which I have been able to work out a scheme myself.
Amendments Nos. 28 and 29 are ruled out.
I do not want to be taken as accepting the Deputy's reasoning in these.
I am not fathering anything on the President. These amendments are irrelevant now.
I move amendment No. 30:—
In page 40, line 23, Article 19, to insert before the word "panels" the words "the corresponding".
The idea I have is that, if you had a direct election on to panels, and, let us say, you had a functional organisation which was clearly one of a type that it should have its members elected, say, to the first panel, you would not make room for them by robbing the second or third panel of its members. You want to have a correspondence between the functional organisation and the panel to which they would be allowed to elect members. The best we could do was to put in the words "the corresponding". To do it more fully would require a very long section, and I think it is sufficiently clear.
I move amendment No. 31:—
In page 46, lines 5 and 6, Article 23, Section 1, to delete the words "in respect of which a resolution shall have been passed by Dáil Eireann" and substitute the words "the time for the consideration of which by Seanad Eireann shall have been abridged".
Amendments 31 to 35, inclusive, are really textual amendments. The original words were "in respect of which a resolution shall have been passed by Dáil Eireann". These would not be sufficient, because it is when the full procedure had been gone through and when the time was, in fact, abridged. It is a mere textual change to make clear beyond doubt what was the intention.
I move amendment No. 36:—
In page 58, lines 7 and 8, Article 28, Section 1, to delete the words "of Eire, herein generally referred to as the Government".
That is a mere textual change, deleting these words and making the word "Government" instead.
I move amendment No. 41:—
In page 68, line 5, Article 31, Section 1, to delete the word "under" and substitute the word "by" and in line 6 after the word "Constitution" to insert the words "expressed to be".
This is of the type I have already referred to, namely, changing the word "under" and substituting the word "by," where it is clear that "by" is the better word. Then we want the words "expressed to be" inserted. The Article reads: "There shall be a Council of State to aid and counsel the President on all matters on which the President may consult the said council in relation to the exercise and performance by him of such of his powers and functions as are ...," then it will be "by this Constitution expressed to be exercisable and performable," because we have it expressed in the Constitution that they were to be exercisable. It is simply "expressed to be exercisable and performable" by him.
I move amendment No. 43:—
In page 76, line 1, Article 34, Section 5, sub-section 1º, to insert after the word "Constitution" the words "and the laws".
This is simply that a judge is to swear to uphold not merely the Constitution but the laws.
I move amendment No. 44:—
In page 78, lines 11 and 12, Article 35, Section 5, to delete the words "of the Supreme Court or of the High Court".
There was a certain wish expressed from the Opposition Benches that the judges of the Circuit Court and the other courts should not be, as regards remuneration, in a less satisfactory position than the other judges. This puts all judges in the position in which their salary cannot be changed, so as to give them an assurance that their independence is not being interfered with by the Executive.
This amendment may effect the purpose which it is proposed to effect, but is there anything in the Constitution in which Circuit Court judges and district justices are mentioned at all? So far as I know, the provisions here about the courts simply deal with the High Courts. There is no definition of a judge anywhere, so far as I know. Article 35, 1º, may possibly help you.
Or Article 34, Section 5, sub-section 2º, which refers to "the judges of every other court".
Article 35, 1º says: "Judges of the Supreme Court, the High Court and all other courts," but we are not told what the other courts are. We have no definition of a judge.
We speak of justice being administered in public courts and we say that "the courts shall comprise Courts of First Instance and a Court of Final Appeal."
The President may be right. If he is satisfied that it covers Circuit Court judges and district justices I am satisfied. Of course, I have not had very much time to go through it this morning, but if it makes it clear that Circuit Court judges and district justices shall not have their salary altered, it is an improvement.
This would cover anybody who would be characterised as a "judge." We are speaking about courts that have been established. Of course, these courts have to be established by law and those who have been administering justice in public courts come under the name of judges. I do not think there is any definite or immediate definition of "judge."
I am not pressing it as the President is satisfied that the district court judges are covered. I only wanted an assurance that they were covered.
I suggest that every person who takes the declaration at the bottom of page 74 and at the top of page 75 is readily identifiable as a judge.
I move amendment No. 45:—
In page 80, lines 30 and 32, Article 39, to delete the word "Eire" and substitute in each case the words "the State".
This amendment is of the usual type.
This amendment cannot be moved.
I did not catch what An Leas-Cheann Comhairle said.
The amendment may not be moved. It introduces a completely new principle.
Does that mean that it is not in order?
A completely new principle is being introduced into the Article by the amendment.
That was not conveyed to me, or at least it did not reach me. I respectfully submit that it is in order and that it arises completely out of the previous paragraph about differentiation of function and capacity.
The Cheann Comhairle has ruled that a completely new principle is involved.
I do not want to argue but I do submit that in the case of employees in the State service, they are directly concerned in the previous paragraph of this Article. However, if the Ceann Comhairle has ruled I cannot controvert his opinion.
On behalf of Deputy McGilligan, I move amendment No. 47:
In page 82, line 12, Article 40, Section 1, to add after the word "function" the words following: "Such enactments shall, however, contain no sex, class or religious discrimination."
We had a similar amendment down on the Committee Stage, and it was withdrawn to enable the President to consider certain points that arose in it. I do not know whether the President has any views on the matter or not.
My views are not changed on this matter. There was no suggestion at any particular time pointing to any particular class. Section 1 of Article 40 is of a positive character. It is simply declaratory. But in this amendment there is a new principle binding the Legislature in future with regard to "sex, class or religious discrimination." I do not know whether "discrimination" means distinction or only discrimination; it possibly means differentiation. I think we would be going very far if we say we are not going to make any distinction in the laws. Without expressing an opinion I do not see why we should bind ourselves completely, in advance, in that respect. It would seem to me to be putting something in Section 1 which is not contained in it at all at the moment.
The amendment may be open to the verbal objections that the President has raised as to the meaning of the word "discrimination" or whether it is unjust discrimination or otherwise. The substance of the amendment, as proposed on the last occasion, was to the effect that it should be provided in the Constitution that the law in dealing with any of the matters covered by Article 40 should contain no sex distinction. It was thought proper that coupled with that particular consideration as to discrimination or class distinction in legislation, that class distinction and distinction in religion should also be provided for. Section 1 of Article 40 being open to certain constructions, the general object of the amendment was, that it should be made apparent that these constructions would not allow of the enactment of law by the Legislature discriminating between classes of workers, and industrialists and different religions. The President, apparently, has made up his mind on the subject and there is very little use in going over the ground that we went over before. I understand that the President, while objecting to the word "class," promised to consider the question and to put something into this Article which would calm the fears of these ladies or women's organisations in the matter of these expressions here "differences of capacity, physical and moral, and of social function." These words might be held to allow the Legislature hereafter to pass laws in such a way that sex or religious qualifications might be imported into our law.
There is no doubt that it would be possible, as far as we can go, to prevent the Legislature in future doing things that would be unfair or unjust. But the danger is that in trying to prevent injustice we might also prevent justice from being done.
I have always contended that the second clause here has not the meaning which is attached to it. The second part of Section 1 is to provide that the first part of the section should not be stretched in a direction in which it was never meant to be stretched. The point aimed at was equality before the law. That is justice in the court. I think the amendment is importing into the Article completely extraneous ideas. I see no reason why we should do that.
May I put one particular example of the kind of thing that would appear to be allowable under the paragraph of the Article as it stands and as it is proposed to stand? The clause provides that the State shall in its enactments have due regard to differences of capacity, physical and moral, and of social function. The expression "enactments" would, of course, include administrative action or orders made pursuant to statutes of the Legislature. Now, under these administrative actions and orders the Civil Service of the State is divided into certain classes or categories. As between various categories in the Civil Service we find a distinction made between married men and unmarried men. We find a distinction made as between men and unmarried women. It is really to cover that class of case that the amendment was put down in its original form. It is well known, of course, that there are people working in the Civil Service in the same category and doing the same class of work. One is married, the other unmarried. They pass the same examination, but one gets more pay than the other. That is permissible under the present law. But not merely would it be permissible, if this Constitution goes through, but it would get constitutional benediction and that is a matter that should be considered.
I do not know about getting a constitutional benediction. I do not agree with that. If we have to provide for other things it does not follow of necessity that there has been a benediction for doing it in one particular direction. I am not going to argue here the merits of that whole scheme of laws. They were enacted by the previous Government and are continued by us. If there is any injustice being done, there is no reason why it should not be remedied. I am not accepting it that there is injustice, but if the Deputy has a case to make, there is nothing here to prevent it being followed up or any representations being made in regard to it.
It is quite clear from the discussion that has taken place that this is the situation: The President desires that the Legislature of the future shall not be deprived of power to legislate along sex lines, if they think it necessary to do so. The President feels that some future Legislature may desire to have regard to differences of capacity, physical or moral, as between men and women and he thinks it would not be right to prevent an enactment along those lines, if such were thought desirable. I take it the President must see the possibility of legislation being required here which will make a distinction as between men and women and it is his desire not to have that prohibited.
This does not suggest that at all. I am not taking the Deputy's summarising of the case as being accurate. The position really is this. I have not had sufficient examination of all the possibilities that might arise in connection with action such as the repeal of these enactments to which Deputy Costello has referred to say at this particular time that we would have here by means of the Constitution to override the existing situation. That can only be done by examination afterwards. We are not going to pass something in the Constitution which might overrun and be pleaded against the whole of the existing situation. If that situation is not satisfactory, let it be remedied on its own, and not by an Article in the Constitution.
The Article sets out that all the citizens shall be held equal before the law. Then we have the first exception, that the State may, however, in its enactments, have due regard to differences in capacity, physical and moral. I suggest as an amendment that such enactments shall not contain any sex discrimination. Why will the President not accept that? I suggest it is because he wants to leave the door open to future legislation based on grounds of sex.
The Deputy knows full well that that is not so. I say that if there are things of that sort that have to be remedied, let them be remedied on their own. If there is something unfair in the existing situation, let it be remedied on its own.
There will not be acceptance of an amendment which sets out that there shall not be discrimination on grounds of sex. The Constitution starts off with a phrase about the rights of the people, that the people shall be equal before the law. But then we have it that the State must have regard to differences of capacity. When an amendment is moved suggesting that you shall not have any regard to discrimination based on sex there is a refusal to accept that. What can one conclude?
This is a matter in which I take a special interest. I think this should be preserved, because it is possible that a conscription law would be passed, and if everyone is equal and if equal rights would imply equal duties, it might be very unfair to women that they would be conscripted in the same way as men. Therefore, there should be some protection for them. I do not know what Deputy McGilligan means by discrimination.
Does the Deputy understand the Constitution? This phrase is copied from the Constitution.
I am interested in that particular aspect. Perhaps the Deputy will explain what would happen in that case?
In any case, the same door was left open in the old Constitution and there were a great many sorts of evil legislation that could have been thought of by the framers of the old Constitution and that they could have sought to provide against and did not provide against because they very sensibly thought it was a hopeless task to bind the Parliaments of all time in such a way as to prevent them passing mischievous legislation. Is it, therefore, fair to say that the framers of the old Constitution were not legislating blindly, that they must have thought of all the evil things that could be done, and as they did not put anything in the Constitution to prevent those things being done, therefore they must have contemplated their being done, if not actually wanting them to be done?
That is a very puerile argument. The fact that some door was left open by a previous Constitution is not an answer to a question of principle. Whoever drafted that Constitution may have been wrong, but we have a chance of remedying it now if it was wrong. To say that something else was done previously which ought not to be done now, that if the door was left open it ought not to be shut now is, to put it mildly, merely puerile. I was not endeavouring to remedy existing grievances or injustices. The whole purport of the amendment is to provide that the law will not make any undue discrimination against women and in favour of men. Could anything be clearer?
The Deputy qualifies his discrimination with the word "undue." When Deputy McGilligan spoke it showed me how necessary it was to have this second portion here. I was not completely and absolutely convinced of the necessity for the second part until Deputy McGilligan went on to interpret the first part in a way altogether different from the manner in which it arose originally. I think Deputy Fitzgerald-Kenney, when he was speaking on this particular matter, restricted the use of that to equal justice in the courts. I have no doubt that was the original intention, that when people came before the courts, where it was A or B, the case was investigated irrespective of who A or B was. Now, undoubtedly, it has stretched from that meaning to mean that in all law citizens should be regarded as equal, which would make all law impossible, because we have constantly to distinguish between classes. If we want to be just we have to do it. We have to distinguish in our laws between the functions in the community. Whatever doubts I had before, I am satisfied from the way in which Deputy McGilligan has interpreted the meaning of the first part of this that it is essential that we should have the second part.
Deputy Mrs. Concannon asked me the meaning of a phrase that is here. Does she admit she does not understand what a religious or a class discrimination is?
I was talking about sex.
Then it is only the difficult word "sex" she is concerned about? Deputy Mrs. Concannon does understand what a political, a religious or a class discrimination would mean.
I do not think I know what a class discrimination would mean.
But the Deputy has voted for Article 40, which contains that. It was introduced by the President, who also said he did not understand what this word "class" meant. But his Constitution contains the word. If Deputy Mrs. Concannon cannot understand what a sex discrimination is, but does understand a political, a religious or a class discrimination, then I am not able to answer her.
That was not my difficulty.
Very well; go ahead.
I said I did not know what the Deputy meant by the word "discrimination".
What I mean is quite easily explained. I do not want any discrimination in laws made based on this, that some laws are to apply to men because they are men, and others to women because they are women.
The Deputy will allow that it is necessary sometimes?
I have not yet found the case in which it is necessary. The Deputy talked about conscription, but have we that here?
No, but we are providing for the future and it might arise.
We will see what happens if conscription is introduced and if the phrase corresponding to the phrase in Article 3 of the old Constitution were here. That is where Deputy MacDermot has not even read the old Constitution. Article 3 simply stated that every person, without distinction of sex, who had done various things— there were certain qualifications that had to be passed of birth and residence —becomes a citizen of the Free State, and, as such, is subject to obligations and duties and has the rights of citizens. If anything was passed thereafter, that being the constitutional proviso, a constitutional case could have been argued as to whether it was right or wrong. The phrase "without distinction of sex" put into this Constitution—the Article being "all citizens without distinction of sex shall be held equal before the law"— would suit perfectly. If there is any case arising hereafter, it is a matter for constitutional argument, and if it is necessary to have it done as a matter of conscription, a constitutional amendment with regard to that special matter could be brought forward. That is what is asked here, and that is what Deputy Mrs. Concannon, as a lady Deputy, is going to vote on.
Is the situation not absolutely clear-cut? I do not think there is any necessity for further argument on it. The Article says "All citizens shall be held equal before the law", and thereafter it says: "The State shall have due regard to differences of capacity, physical and moral." I want to know does that mean a discrimination on the ground of sex broadly on the basis that certain people are going to be affected as men and certain others as women? I want to prevent that. Deputy Mrs. Concannon does not understand what I want to prevent, and she is anxious to let that discrimination occur on the sole ground of the possibility of there being a conscription law.
There are other examples.
We will get the others when the Deputy thinks of them, but at the moment we have one, and for that possibility of conscription being introduced here, Deputy Mrs. Concannon agrees with the President that the door should be flung wide open and that in all sorts of enactments under the Constitution regard should be had——
Due regard.
Who is to decide on the "due regard"? The people who pass the law. There again we get this discrimination that runs right through the whole Constitution. You give a right. Who is going to determine whether the right is being properly given to the people? The courts, and then you subtract from that right by the law. Who is going to determine the law? The Deputies. You can eat away from what the courts ought to be the guardians of, by what the Deputies, the majority at any time, like to do. Is it a right thing to have such a big point as the rights of citizens and their equality before the law to be determined hereafter not by the independent judiciary but by a Party majority in the House? That is the big test there is.
Deputy McGilligan keeps talking about throwing open doors. I repeat that there are no doors being thrown open. He suggests that I have not read Article 3 of the old Constitution. I had it open before me when I spoke, and I have it open before me still, and Article 3 of the old Constitution, so far as women are concerned, does no more than to assure them the rights of citizenship on the same basis as men. It does nothing whatever to protect them against the kind of legislation which Deputy McGilligan now says he is afraid of. It is relevant to consider what was done in the old Constitution, because, in the first place, it is relevant to the question of the sincerity of the objections that are being made to this Constitution by the people who amended the old Constitution freely while in office and who might have amended it in this respect——
But did not.
——if they considered it necessary to do so. They did not consider it necessary to do so.
But did not amend the Constitution in that regard.
That is what I am saying. They did not feel, while they had power to amend the Constitution, this urgent need to close the door against discriminatory functional legislation. Why do they feel it now? There is nothing in the principle laid down there about having regard to differences of capacity, physical and moral, and social functions that is in any way novel. During the last year, throughout the Christian Front movement and Christian action activity and the propaganda based on Papal Encyclicals, great stress has been laid on all this and it is amazing that Deputies should now treat it as if it were an unheard-of novelty to suggest that there were these differences; but the statement of that undeniable fact, a statement that there may be cases when we are not prepared to rule ourselves out in advance from making any difference in our legislation between men and women, does not mean that anybody has a desire to start anti-feminist legislation. After all, the fundamental fact with regard to this Constitution, with regard to the last Constitution and with regard to every Constitution is that you are essaying an utterly hopeless task if you try to close every door to bad legislation in the future. You cannot do it.
It is extraordinary that it is now Deputies on the other benches are discovering all these prohibitions that were in the old Constitution. I take it that they accepted in 1924 and, particularly in 1926, when the matter was raised, this question of the discrimination between men and women in the public service, for example. They had the old Constitution and, nevertheless, they went ahead and made that difference. Reading Article 3, I see nothing in it which closes any door. What we are doing here is trying to safeguard the first part of that Article from being stretched in a direction which I believe was an altogether unwarranted direction. It has, however, been stretched in that direction and I wanted to meet it in the statement that all citizens shall, as human persons, be held equal before the law. I believe that phrase originated in quite a different way from that in which it is sought to be used, that you must in law not differentiate between the sexes. I believe you may have to differentiate in some cases and I am not prejudging the situation in this clause of the Article at all. I am saying that citizens as human persons are held equal and that it shall not be held to mean, as Deputy McGilligan wants it to mean, that the State shall not in its enactments have due regard to differences of capacity and so on. I think we are acting wisely in leaving that section as it is.
It seems to me that while Deputy MacDermot was speaking President de Valera must have been shouting out to himself “non tali auxilio” because I think Deputy MacDermot's intervention must have been a very sore and unpleasant one to the President. What is his argument? The old Constitution is impeccable the old Constitution is perfect. Is that not what it comes down to? You have something in the old Constitution and, therefore, it ought to remain. Taking it for granted that Deputy MacDermot is right, that the old Constitution cannot be improved upon, then the whole ground is cut completely and entirely from under the President's feet and I think the President obviously cannot be very happy when Deputy MacDermot brings the force of his mighty reasoning powers to his assistance, but certain things are expressed and, as the President himself has stated, everything cannot be dealt with precisely at the same time. In every measure, certain questions remain dormant, so to speak. Then, they become vitalised. They come under discussion and are considered for the first time. Then it becomes necessary for a decision to be come to one way or the other. This particular question did lie dormant while the old Constitution was being discussed. It is not dormant now. It has come to life. There are issues now before the House. Since these issues have come to life within the House and have been, if I may say so, vitalised by discussion outside the House, the House cannot refuse to give a ruling on points which did not arise during the discussion of the Constitution now in force.
I think we have not had anything but repetition.
This Article merely provides that the State shall have due regard to differences of capacity, physical and moral, and of social functions. I think that is already well recognised in the existing laws. I may cite two examples of laws in which the State has due regard to the differences of capacity, physical and moral, and of social function. Recently, we passed a Widows' and Orphans' Pensions Bill. In that measure, discrimination is made between a widow and a widower. A widower cannot qualify under that Act for a pension. If we omitted a statement of an obvious fact from our Constitution, would it be constitutional for us to discriminate between the social function of men and women and to grant pensions to widows while we denied them to widowers? The second example occurred to me while Deputy McGilligan was speaking. I refer to the Slander of Women Act. That is an Act in which the State has due regard to the differences between men and women. No such Act applies to men. From those two instances, it will be seen that the statement in the Constitution is a statement of an existing fact, already recognised by the laws of the State.
The discussion has been useful from this viewpoint—that it has made quite clear that the President did not like to put in the phrase "having due regard to difference of sex" and, therefore, cloaked it under "due regard to differences of capacity, physical and moral". The examples given by Deputy Keely and Deputy Mrs. Concannon and any other examples that can be thought of are indicative of the intention that there should be discrimination on the ground of sex.
In favour of women.
Let us leave out of the argument for the moment whether that is right or wrong, whether it is right that one thing should be written into the Constitution and that the subtraction should be by means of law, instead of putting it all in the Constitution itself. Deputy Keely has his mind absolutely clear on this matter. He has given two examples from the past. That is the sort of thing he is projecting into the future. He wants to be able to discriminate on the ground of sex.
It was not in our mind at all. The whole of this discussion was raised by the Opposition. The possibility of sex discrimination originated with the Opposition.
When the other side wanted to disprove the case made, they founded themselves entirely on the argument as to discrimination on the ground of sex.
How could we help it?
All the arguments were arguments showing discrimination on the ground of sex. That is what is wanted.
Discrimination on the ground of sex occurs only in your amendment. There is nothing about it in the Constitution.
Not explicitly. Deputy Mrs. Concannon might be in trouble with ladies of her acquaintance if it were explicit. It is not explicit but it is implied.
No.
I shall give the Deputy the woman's privilege in a moment. The Deputy brings forward one example where she holds there is a discrimination between men and women. Deputy Keely gives us examples from the past. That is the whole atmosphere of the argument— the necessity for this discrimination. Let us move on to another point. Suppose you do want to discriminate on ground of sex, look at what is done. A grand constitutional right, to be adjudicated upon by the courts, is set out—that all people are equal. Then immediately comes in the question of the law. The law will not be thrown down because it is contrary to the Constitution. The judges will have nothing to say to that. The requirements of the law will be set out, and we make clear here that we want to be able to take into account the differences between the sexes.
"With due regard."
We want to be able to pass laws discriminating between the sexes and to put the matter in such a way that nobody can go to the High Court or Supreme Court and question that law or get it set aside on the ground that it is contrary to the Constitution. Away goes the Constitution! What is the point raised by Deputy Donnelly, after reading the Article for the first time to-day?
No.
"With due regard." Is the argument that, though you have passed laws discriminating between the sexes, the question as to whether you have had "due regard" can be brought before the High Court or the Supreme Court?
If there were lawyers like those on the Opposition Benches, they would probably bring it before the court.
The brilliant mind of the President does not conceive that that ought to be allowed—that it should be open to bring a case before the High Court on the argument that the law had not had "due regard." The President would not like to have that made a constitutional question. It is not possible to make it a constitutional question under this Article. The Legislature will pass the law. Does Deputy Donnelly think that the High Court or the Supreme Court is going to set aside under that Article as it stands any law passed here on the ground that due regard has not been paid to "differences of capacity, physical or moral"? If the Deputy is thinking of taking a constitutional case on these grounds hereafter, let him remember my admonition to him now: "Do not take it; it would be foolish."
Deputies on the opposite side want this discrimination and they want it mainly—if I am to judge from the examples given—on the ground of sex. This other phrase about "capacity, physical and moral" is only a nice way of getting Deputies like Deputy Mrs. Concannon to vote for the Article and be able to say that sex discrimination was not referred to in the Constitution.
No.
Deputy Mrs. Concannon will walk blindly behind her leader into the lobby and proclaim to all the world that there was no question of sex discrimination.
There is no question of sex discrimination in the Constitution.
Not even hidden? What was the old position, if I may return to Article 3? I am amused by the fact that, although Deputy MacDermot has been here three years, he does not yet know what Article 3 means. In a short time he will probably stop reading Article 3 and forget all about it. Article 3 was not put in to last for all time. Already I have contrasted the humility of the people who brought in the original Constitution with the attitude adopted by those who have brought in this Draft Constitution. The old Constitution was open to amendment by the easy method of ordinary legislation for eight years. That period was extended to 16 years, which period is still running. No attempt was made to close down on that although it could have been done. If we wanted to leave a rigid Constitution behind us we could have amended that Article before we left office. We did not do that. We left the Constitution open to amendment by way of ordinary legislation. It was brought in, and it was stated when it was passing through the Dáil first, that undoubtedly there were things that would only be discovered after the Constitution had been tested out by experience over a number of years. On an appeal being made the original period of four years was, without a division, enlarged to eight years, and later enlarged to 16. The present Constitution for a period of three years may, subject to the discretion of whoever is President, be amended by way of ordinary legislation. During that period the President may send any law to the people by way of Referendum, but after three years it becomes rigid and fast. One of the things that you cannot amend in this Constitution is this three-year period. The House is now being asked to pass this constitutional right, and then there is to be a subtraction of all the good from that constitutional right by process of law. That is going to be the constitutional position, that laws may be passed subtracting all the good from that constitutional right which cannot be amended except by Referendum after three years.
What did Article 3 of the old Constitution give? It established people as citizens, and went on to say that everybody who was a citizen—there was no discrimination of sex—had all the privileges and obligations of citizenship. There was a variety of Articles afterwards setting out the privileges of citizenship. One was that there could not be any discrimination with regard to sex. If there was any doubt about that it could have been tested as to whether that was the constitutional position or not, but such action was not adopted towards it. Can it be said that we will have the same situation in the future?
More work for the lawyers!
Every habeas corpus case could be derided as being more work for the lawyers, but there were men snatched out of jail against oppressive types of Governments by the habeas corpus type of activity, and all that can now be derided as work for the lawyers. There was a safeguarding of the citizen. This derision of the lawyers means also derision of the courts. Article 3 established the constitutional position. It could be amended as easily as any other part of the Constitution, but if the key had been turned in the padlock after the first eight years, then the whole Constitution was rigid. Women would then have had the particular matter of citizenship on an equal footing with men, so that whatever Articles afterwards set out the rights and duties of citizenship, they had them equally with men as part of the Constitution. That is not the position in this Constitution. Deputy Mrs. Concannon has told us that she does not believe that there is sex discrimination in the Article.
I certainly do not accept the words "sex discrimination." The words of the Article are:—
This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.
I think that in these words there is a necessary protection for women. The words "sex discrimination" do not come into the Article.
Deputy McGilligan has accused me of not understanding Article 3 of the old Constitution, but he utterly omitted to point out in what respect I failed to understand it. I offer him this challenge. Will he mention any law discriminating in an undesirable manner against women that he can think of that would be possible under the new Constitution and that was not possible under the old Constitution? If he can, then I agree that we ought to think seriously whether some amendment is not necessary. I personally have not been able to think of such a law. Deputy McGilligan considers that all sorts of safeguards should be provided now, but they were not provided before, and I want to know whether the Constitution as it stands does really create any danger for women that did not exist before. If it does not, why should we work ourselves up into a fever about it?
Under the old Constitution all citizens were guaranteed equal rights of citizenship, and guaranteed them without distinction of sex.
And that is the position under this.
Citizenship is not guaranteed without distinction of sex here.
Yes, by the amendment.
Is there an amendment which prevents enactments being made having due regard to physical capacity? None. What is the good of putting in a plus while you have a large minus hidden away which subtracts everything that the plus gives you? Laws may be made having due regard "to differences of capacity, physical and moral."
And so they could before.
If there was a law passed citizens were granted equal rights. You had men and women on an equal footing. One right was with regard to the free expression of opinion, and another the right to form associations or unions. There could never have been, under the old Constitution, a law passed saying that men would have the right to form certain associations and that women would not.
Can that be done now?
It can. What is to prevent a law being made hereafter saying that, as between citizens in the matter of the right to form associations, a discrimination is made against women on the grounds of sex? Nothing. There is no constitutional prohibition that I can see, and if there is one I want to have it pointed out to me.
If Deputy McGilligan's amendment were accepted, is there anything to prevent the State at a future date passing a Conscription Act, supposing the State was at war, to conscript the members of religious communities in the country. Is the Deputy's amendment designed to see that there shall be no discrimination, and that, therefore, there could be an attack on the members of religious communities?
No.
In the Constitution it is laid down that there shall be due regard to social function. If Deputy McGilligan's amendment were accepted it would mean that we could not have due regard to social function because religious discrimination is to be ruled out. I suggest that is very significant.
Deputy McGilligan seems to have chosen a rather unfortunate example of the kind of legislation that he has in mind when he refers to freedom of association as something that was secured for women by the old Constitution and that is not secured for them by the new Constitution. This is the reference in the old Constitution to freedom of association:—
"The right... to form associations or unions, is guaranteed for purposes not opposed to public morality. Laws regulating the manner in which the right of forming associations and the right of free assembly may be exercised——
are not these sinister words when we look back on some of the discussions that took place last week—
"shall contain no political, religious or class distinction."
Why that is positively inviting sex distinction.
The trouble with Deputy MacDermot is that he can only read one Article of the Constitution and understand it. He cannot carry his understanding backward or forward to any other Article. Article 3 of the old Constitution provided that all persons, without distinction of sex, had the rights of citizenship, and a series of Articles after that set out the rights of the citizen. One of them was the right with regard to associations. There was no necessity to put in a "no sex" distinction, because that was already in Article 3. Once a person is a citizen, the rights flow, and you could not discriminate, when you are giving citizenship, on grounds of sex. So, if Deputy MacDermot will tire himself by reading Article 3 as closely as the other Article, he should be able to get the point clear. As to the last point made by Deputy Keely, it is hardly worth dealing with.
It is not possible?
It is possible under what is in the Constitution.
Having due regard to social function?
It is possible under the present Constitution. If Deputy Keely says that it is not, will he tell me what stops him from doing so?
Well, I presume that the Deputy is satisfied with his hobby-horse now.
I should just like to say, Sir, that I do not accept Deputy McGilligan's interpretation of the joint effect of Article 3 and Article 9, but we cannot go on arguing for ever.
Well, that is one of the worst decisions I have ever heard—one of the very worst I have ever heard.
I move amendment No. 48:—
In page 82, Article 40, Section 2, sub-section 1º, to delete line 14.
This deals with orders of merit.
I move amendment No. 49:—
In page 82, line 15, Article 40, Section 2, sub-section 2º, to delete the words "conferred on" and substitute the words "accepted by."
That is an amendment which I indicated I would accept. I think it was an amendment by Deputy MacDermot.
I move amendment No. 49a:—
In page 84, Article 40, Section 6, sub-section 1º, paragraph (i), line 25, after the word "expression" to insert the words "including criticism of Government policy".
This is to meet a point raised by Deputy MacDermot.
On this amendment a very serious issue arises. A long discussion took place on this Article on the Committee Stage dealing with the effect of what I shall call, subject to protest—if I might put it that way— the proviso to clause 1 of the Article. Various suggestions were put forward from this side of the House as to the possible construction that would be put on this proviso, which would have the effect of limiting the right of free speech and the freedom of the Press. The President, I think, was to have considered some of the suggestions that we put forward, that the section was capable of being construed in such a way as to cut down the liberty of free speech and the liberty of the Press. Now I gather from the President that the only amendment that has been accepted, the only suggestion to which any weight has been attached at all, is the suggestion that the words "including criticism of Government policy" should be inserted in the proviso to clause 1, paragraph (i) of the Article. In my view the effect of that, so far from improving the Article, will, in fact and in law, render more forceful all the arguments we advanced here on the last stage of the measure in reference to the possible effect of this Article on the right of free speech and the liberty of the Press.
I do not wish to repeat my arguments again, but I must just refer to this aspect very briefly. I drew attention, on the last stage of the Bill, to the Latin maxim, Expressio unius est exclusio alterius, which means that if you express one thing in an Act of Parliament, by implication you thereby exclude a large number of other things. Here in the first part of this section the State guarantees liberty to citizens to express freely their opinions, subject to public order and morality. I stated here on the last occasion, and I re-state it here positively, that in the phrase “subject to public order and morality” are embodied comprehensively all the so-called limitations which exist in law and under our existing Constitution on the right of free speech and the liberty of the Press. Everybody admits that the right of free speech and the liberty of the Press, which is only another manifestation of the right of free speech, are subject to certain so-called limitations.
The right of free speech and the liberty of the Press must not be exercised in a manner that would be blasphemous, seditious or indecent. All these matters are, as a matter of law and construction, clearly enshrined in the phrase "subject to public order and morality." What is sought to be done in the proviso to that right is to emphasise that, in reference to certain methods by which the right of free speech and the liberty of the Press may be exercised, they are to be subject to certain limitations. The proviso, putting it in a very wide way, sets forth that the State shall endeavour to ensure that certain organs of public opinion, such as the cinema, the radio and the Press, while preserving their rightful liberty of expression, shall not be used to undermine public order or morality or the authority of the State. It is proposed now to make that clause read: "to ensure that organs of public opinion, such as the radio, the Press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State."
If you insert these words, "including criticism of Government policy," the danger is that you will exclude a large variety of other matters and thereby make it appear that because it was necessary to put in, as a sort of exception to this controlling power, criticism of Government policy, these other matters, not being included in that exception, are subject to the right of control in this proviso. The proviso, when it is amended according to the President's amendment on the Paper at the moment, allows criticism of the Government. Does it allow criticism of a member of the Government? You can criticise the Government, which is defined in the Constitution by Article 28, clause 1. You may, if you like, criticise 15 members who are an entity called by the Constitution "The Government." But can you criticise the public actions of one of those members operating in his Departmental capacity? Can you criticise his Departmental actions? Can a newspaper refer in an adverse way, in the wind of adverse criticism, to the actions of the Minister for Posts and Telegraphs? That is not included here. That may be said to be subject to this right of control in the interests of the education of public opinion. Deputy Norton may go out to his constituency at the present moment and criticise the Minister for Posts and Telegraphs because of his failure to give adequate wages to a certain class in the Post Office. After this Constitution is passed, can he go out and criticise that particular Minister, or must his criticism, in order to be constitutional, be directed against the Government? That is one of the examples which I give as the possible construction that may be put upon this. Can you criticise a Parliamentary Secretary? Can you criticise Deputy Hugo Flinn, the Parliamentary Secretary to the Minister for Finance at the moment, or somebody else in his position hereafter, for his actions in connection with unemployment grants and matters of that kind? Can you criticise a county council, or are you liable to be controlled, in the interests of the education of public opinion, by a Government that wants to muzzle criticism in that line?
"Government policy," I am told, is the alternative amendment. I had not seen that, I confess. I was dealing with the Paper I got this morning. I should not be surprised if amendments to this Constitution sprung out of the air. Until my colleague here pointed cut to me that there was another amendment in typescript, I had not known it. The so-called improvement in the typescript makes the matter worse, because you can only criticise Government policy now. You cannot criticise departmental actions. You cannot criticise the policy of a particular Minister. Possibly it might be said that you could, because there is a collective responsibility, and therefore the policy of one member is the policy of the whole. I have already criticised adversely the policy of the Government in this Constitution in regard to that aspect. I will even take it at "policy." Departmental action, administrative action, is not policy. Action carried out administratively in a Department by the officers of the Department, for which the Minister is responsible to the House, is not policy. It may not be policy. Can we criticise a member of the Government? Can we criticise a Parliamentary Secretary? Can we criticise a county council for their policy? Inferentially, we cannot. All you say here is that you can criticise Government policy.
Towards the close of the debate on this clause on the last Stage I asked the President would he agree with me that if a newspaper published an article deliberately intending to undermine the authority of the State, that would be something contrary to public order? He agreed with me that it would, as obviously it would. This clause still reads—and apparently it is the President's intention that it should continue so to read as part of our Constitution, if this becomes the Constitution of the State—that "the education of public opinion being, however, a matter of grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the Press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or public order." You start the phrase by saying that the right is to be exercised subject to public order and morality, and you go on to say that the State shall endeavour to secure that this expression of opinion and the liberty of the Press shall be exercised subject to public order or morality or public order. On its face it is nonsense, read in that way, construed in that way.
Already, on the last Stage, I have directed the attention of the House to the fact that the courts always endeavour to give not a nonsensical meaning to Acts of the Legislature; still more will they be inclined to give a meaning, which will not make it nonsense, to a phrase or clause in the Constitution. The courts will endeavour to construe this clause as having some meaning, being a proviso to the general guaranteed right of free expression of opinion and convictions. The courts can construe this in no other way, in my opinion, than as being a limitation upon that right, and if it is a limitation upon that right it is a duty on the State to do the things that are set out here in the interests of the education of public opinion—to control the radio, the Press, and the cinema. Why the phonograph should not be controlled, or the gramophone, or the loud speaker, I do not know. At all events, they pick the radio, the Press and the cinema. We may have television, and I suppose that will not be controlled in the interests of the education of public opinion.
The danger of this is not that it is going to be construed as nonsense. In my opinion, as it stands at the moment, it is capable of being construed as nonsense. The danger is that the courts will say that the Legislature never inserted in the Constitution, above all things, a clause that could bear nothing but a nonsensical meaning, and that, therefore, it being put by way of a proviso to the statement of the general right of free expression of opinion, it must be something inserted by way of enabling the Legislature to control the exercise of that right. Once you start controlling the exercise of that right, there is almost an end to the right of free expression of opinion and the liberty of the Press. There is certainly an end to it in the way that has existed in this country before this State was set up at all, and in the way that it was continued under our Constitution. Again, I emphasise the fact that everything that is desirable, everything that exists at the moment and that has existed in this country and in England since the freedom of the Press and freedom of speech became one of the constitutional rights of the people, is included in the expression, "subject to public order and morality."
Again, I referred to the fact that the word "libellous" has not been mentioned in this Article. It was always one of the so-called limitations on the right of free speech and freedom of the Press that it should not publish libellous matter. We find blasphemy and indecency mentioned. Criticism of Government policy is mentioned, but libellous matter is not, although it is one of the things which at the moment, in accordance with the legal definition of freedom of speech, the right of free expression and freedom of the Press is imposed upon the exercise of these rights. It may not be a very serious matter that the word "libellous" is left out, but when the words, "public order and morality" include libel, sedition, blasphemy, indecency, treason and other matters contrary to the authority of the State, and when you put in something specifically on top of that which can only be properly construed as a limitation of that right, then that Article in the Constitution is a dangerous one, and ought to be fought as far as possible.
I participated in the discussion of this section on the Committee Stage, and I expressed the view that the whole object of this qualifying sentence was to restrict substantially the freedom which the Press has under the existing Constitution, and under our existing legislation. The amendment which the President has submitted now in no way takes from the objectionable character of the qualifying sentence. As Deputy Costello stated, I think by its emphasis on criticism of Government policy, it appears to imply that criticism outside that narrow domain may well be dealt with as calculated to undermine the authority of the State. The President appears to think, and so did Deputy MacDermot on the last occasion, that the phrase "while preserving their rightful liberty of expression" offers some solution towards preserving the liberty of the Press to criticise freely the doings of any particular Party or of any Government. May I call attention to the fact that the whole emphasis in the sentence is on undermining public order or morality or the authority of the State. So far as undermining public order or morality is concerned, any transgression in that respect is caught by the overriding words at the commencement of the section, so that there is no need for repetition in the qualifying sentence. We are left, therefore, in the position that the whole emphasis in the sentence is that criticism may not be indulged in calculated to undermine the authority of the State. When you get a clash between what is the preservation of the rightful liberty of expression, and criticism calculated to undermine the authority of the State, the whole emphasis here is that anything calculated to undermine the authority of the State is a transgression of the rightful liberty of expression, and consequently can be banned by legislation which this Constitution foreshadows in that respect. The term "to undermine the authority of the State" is a vague and an empty term, capable of being used by any Government in any kind of situation. If a Government were so disposed, the words "to undermine the authority of the State" could be construed as undermining the political security of a Government, and legislation could be introduced by a Government carrying a majority of one, giving it power, or giving one Minister power, simply to ban and proscribe any newspaper that was a challenge to the Government's continuance in office. I am opposed to this section.
The Deputy will allow me to remind him that on the Committee Stage there was a motion, but not to delete the words the Deputy is criticising. The Deputy was not the only offender in that respect. That amendment was negatived. Therefore, the words stand. The matter before the House for consideration is the amendment on to-day's amendment paper. The section is not before the House as such.
I understand perfectly that it is the amendment which the President has introduced. That is all we are discussing. This is offered by the President, apparently to restore, as he thinks, some little measure of liberty to the Press. I am taking exception to the amendment on the ground that it is not giving the Press the liberty which it has to-day. I am confining my remarks to the net question of control of the Press. I have not even referred so far to the control of the radio and the cinema. I say that the amendment of the President makes this sentence just as objectionable as it was, and in no way improves the sentence from the point of view of those who want to ensure a continuance of the right that the Press has to-day. In every democratic country, where liberty of mind is prized, the Press is permitted wide liberty in the way of criticism. I think the preservation of that right of the Press is necessary for the maintenance of all the virtues which go hand in hand with the maintenance of democratic government. This section, even as implied by the President, is not calculated to permit the Press the liberty and freedom which it had in the past, and which it has at present. The whole object of the section and of the qualifying sentence is to whittle down the liberty that the Press has.
It was stated from public platforms on behalf of the Government that this Constitution is a Magna Charta, that it is the charter of the people's liberty, yet heavily enshrined in it is a clause of this kind, designed to give power into the hands of the Executive Council to throttle the Press, and power to suppress organs of public opinion if, in the opinion of the Executive of the day, that criticism is calculated to undermine the authority of the State. In every other country where efforts have been made to regiment the Press and to control organs of the Press, this has been one of the first steps for the setting up of a dictatorship and an oligarchy. Here in this country we appear to be setting out on the same road, by the foreshadowed introduction of legislation which may deprive the Press and organs of public opinion of many valuable rights which they have to-day. I do not think the President's amendment in any way improves the objectionable character of the qualifying phrase in the section. It is still possible for the Executive Council to throttle the Press, to suppress any organs with whose opinions it disagrees, and to arrogate to itself a right of that kind. That, in my opinion, is foreshadowing the utilisation of that kind of power in the same objectionable way as it has been used in other countries where that kind of power was given to the State.
Deputy Norton stated that the rights of the Press are being taken away. Here is the existing Constitution, for which Deputy Norton voted, in its application to an organisation known as the National Guard and afterwards as the Young Ireland Association:
The Tribunal may, on the application of a member of the Gárda Síochána not below the rank of inspector, make an order declaring any book, issue of a periodical, pamphlet, poster or other document to be seditious.
That is the present state of the law.
May I correct the Deputy and say that I never voted for a clause of that kind?
The Deputy may not have voted for it in that form, but he voted in favour of the application of Article 2A, which contains that clause, against the Blueshirts. Now the Deputy says that the liberty of the Press is being taken away. The liberty of the Press under the new Constitution, even as it stands, is a great deal safer than under the present Constitution.
It is not a Constitution; it is tyranny.
I am not going to argue with the Deputy about definitions. I am merely speaking of his statement that the present magnificent liberties of the Press are being taken away. I deny that statement. Another clause in Article 2A says that any document issued on behalf of any unlawful association can be suppressed, and a further Article says that the Government has complete discretion when deciding what is an unlawful association. That being so, what a farce it is to speak as if the present Constitution protected the Press against the sort of attack that Deputy Norton fears. The Press have only got one real security in the present Constitution and that is the democratic feeling of the Irish people and the democratic feeling of this Assembly. They have exactly that same security in the new Constitution.
The Deputy talks about the safeguard there is in the democratic feeling in this House. It is impossible, apparently, to get the Deputy to realise the difference between a constitutional provision and a piece of ordinary legislation. A Government may, if it has power to pass laws in the Legislature, once it is installed in office, do more or less what it pleases during the five years' term. The only safeguard that the people have against the unauthorised use of power in the five years' period that a Government is elected for is in the Constitution, because whatever a Government does by its legislation, once it is installed, may be brought before the courts on the question: Is this unconstitutional or is it not? If the Deputy can only get that fully realised——
I fully realise it.
Apparently, it is only when sitting down listening to someone else, but when he stands on his feet it disappears. What is the good of the Deputy lecturing the House on the safeguard there is in the democratic spirit of the people, if they are prevented from using that for a period of five years? Such a Government may boldly destroy for that period all the rights supposed to be granted to the people. The Government have control during those five years, and the only way in which there is any impact on them is if they transgress that Constitution and may be brought before the courts for that. Here again we find this which runs right through the whole Constitution. Article 40, sub-section (6), says: "The State guarantees liberty for the exercise of the following rights," and then the phrase follows, "subject to public order and morality."
If there was nothing else in the Constitution except the enumeration of the rights of the citizens to express freely their convictions and opinions, if there was nothing else in the Constitution except what I have read, the situation is this. If the Government bring in a law in any way to regulate the right of citizens to express their opinions, that can be brought before the High Court and the Supreme Court. What the High Court and Supreme Court have to test is: Is that law properly basing itself on the terms "public order and morality"? The High Court and the Supreme Court are to determine whether something in the way of public order and morality is being encroached upon or not. But, add what is in the rest of the Article and you have a new situation. There is a variety of pious expressions and then it states: "The State shall endeavour to ensure that organs of public opinion... shall not be used to undermine public order or morality or the authority of the State.""Public order and morality" are already in the qualification. Being in already, the persons to test it are the High Court and the Supreme Court. Why are they put in again? To take the determination of what is subject to public order and morality away from the High Court and the Supreme Court and to give it to the Legislature.
We have here, in addition to undermining public order or morality, the phrase "shall not be used to undermine... the authority of the State". Would a use of the Press which would undermine the authority of this State be contrary to public order and morality? Surely, it would. Why, therefore, are these things again taken down from the qualification paragraph, where they stand already, and put in here for some reason? "Public order and morality", in the first two lines of sub-section 6 (1) are thrown to the courts to determine the meaning of the words and apply them to the particular piece of law. Transfer them now, and the whole situation is transformed. In the paragraph which follows the question of undermining public order or morality, or undermining the authority of the State, no longer becomes a matter for adjudication by the courts, but for the Legislature to say what, in their opinion, is being done.
So we have again this duplicity. The right given, apparently thrown to the courts to be the safeguarding of the people, the terms of reference given to them; the people are to be safeguarded in the following rights. But the exercise of these rights all the time is to be subject to public order and morality and we say, with a grand gesture: "The courts will determine that." Having said that, we go on to write this extra thing, the full meaning of which is, notwithstanding anything contained above, if the Legislature think something is contrary to public order or morality or likely to undermine the authority of the State, then they can pass a law and destroy the freedom of the Press at their discretion.
I have endeavoured several times to get that point made clear—that there is an enormous difference between granting a constitutional right and allowing the judges to be the arbiters of the application of the qualifications and, in the sub-paragraph, to put in something leaving it to the determination of the Legislature. If Deputy MacDermot is here what he may eventually come to realise is, that the first two lines give a right which the courts will safeguard and, in the next five lines, there is a subsidiary right of determination given to the Dáil. If the Dáil exercises that right, and says in legislation, "We pass this because we think the exercise of these rights is likely to undermine public order and morality and the authority of the State," then the courts are ousted from any jurisdiction. The only thing they may be called upon to pronounce upon is: was the piece of legislation technically correct in passing through the Dáil? Once that is established, the courts cannot say it is unconstitutional.
On the last day, as far as I understand, only one amendment was put to the House and negatived. That was Deputy Norton's amendment to delete from the Article the words "the Press". An amendment in the name of Deputy Costello and myself to cut out all this matter from, "The education of public opinion..." down to "law" was withdrawn by Deputy Dillon, who said that he understood that the President intended to consider the matter raised on the amendment between then and the Report Stage. Deputy Dillon said that he proposed to withdraw the amendment, reserving the right to put it down on the Report Stage if it was desired to divide upon it. So far as I understand the situation, the House divided on the amendment to delete the words "the Press" and it was determined to keep these words in, and there was nothing more determined than that.
It was decided that the section stand. The question was put: "That the section stand part."
"That the words proposed to be deleted stand."
And the whole section later.
According to the Official Report, the question put was: "That the words proposed to be deleted stand." I am reading from column 1728 of the Official Report.
When the debate on the section concluded, the question was put to the House: "That the section stand part," and was agreed to.
There may be something which should be in the Official Report which is not here. With your permission, I propose to read it:—
An Ceann Comhairle: Amendments Nos. 120, 121 and 122 were discussed together. Are they being withdrawn?
Mr. Dillon: I propose to withdraw this amendment No. 120....
Amendment No. 122 was in the name of Deputy MacDermot and Deputy Dillon could not withdraw it.
Mr. Norton: I propose to divide on amendment No. 121.
That was to delete the words "the Press".
No.
There is in it the power to bring in Article 2A.
That is very different.
It could be taken out at any time if it were not in this Constitution. It did not require a constitutional amendment to remove Article 2A but for the future it will require a constitutional amendment to permit of its being taken out.
If Article 2A is introduced by way of legislation it can be repealed by way of legislation.
It can, but you cannot get out of the Constitution the Article which allows 2A to be enacted. I see the President is laughing heartily. Would he explain where his mirth comes from? Is it because of his having to use Article 2A?
There is no reference to Article 2A in the amendment before the House.
We are discussing one of the fundamental rights of the citizens of this country. We are discussing it in the Committee Stage. When these amendments were being debated on the last occasion the President said he would look into the matter. The amendments were then held over indefinitely for later discussion. I do not see why there should be any attempt to strangle discussion on these amendments at the present moment. If the rules of the House are wide enough to preclude these being discussed, then the rules of the House are strangling discussion. The amendment on the former occasion was not put to the House or ruled upon; it was withdrawn.
If the Deputy will look at the volume of the Dáil Debates from which he quoted—which, by the way, is not the official record—he will find it reported in column 1847 that the question "that Article 40 stand part of the Bill" was put and agreed to. It was subject to amendment, by agreement, on the next stage. There is only one amendment before us now, amendment 49 (a). Why other amendments were not re-submitted is no concern of the Chair.
I still want to point out that on column 1728, amendment No. 120, which gave rise to a discussion on the whole Article, was withdrawn, on the ground that the President stated he was going to look into the points raised. I do not want to discuss it, but, if we cannot have a discussion on it, I suggest that we are having the purpose of this Assembly strangled by a rigid and narrow interpretation of the Standing Orders. However, it is most appropriate that the discussion on the freedom of the Press should be ruled in this way.
I want to make one last statement on this. We propose to divide on this, to vote against this amendment proposed by the President. It is apparently put forward by the President as an indication that criticism of Government policy is not to be regarded as a contravention of the proviso in this Article. We will vote against this amendment for the purpose of registering our protest on the Journals of this House that the right of free speech and the liberty of the Press are being infringed upon by this amendment and by the Article as it stands.
I do not know to what extent I will be free to follow some of the arguments that have been put before the House in connection with this matter. The first thing I cannot understand is Deputy McGilligan's attitude that this section somehow withdraws from the cognisance of the courts the question as to whether a particular act will or will not infringe on the liberty of expression which is provided for here. Surely the courts can, in regard to a particular act, say whether this was an infringement on rightful liberty or not? Surely the courts will consider the question as to whether rightful liberty was being infringed upon or not? I cannot understand the argument that this subsection withdraws anything from the cognisance of the courts.
What is the purpose of the whole argument? As I pointed out in the previous debate on this it is to indicate clearly to the public that there is a rightful liberty and that there is an abuse of rightful liberty, and whilst lawyers who understand what is covered by the phrase "public order and morality" may be quite clear in their minds as to what is forbidden, the average citizen, who looks to this for his rights, may not understand it unless it is made clear. The method by which it is made clear is that it is put as a duty, and I think a rightful duty, on the legislature, to endeavour to ensure that organs of public opinion, whilst preserving their rightful liberty of expression, shall not be used to undermine public order or morality or the authority of the State. That is my answer. Should they be used, should they be permitted to undermine public order, morality and the authority of the State?
Deputies have admitted that the authority of the State is already contained in "public order and morality." Is there any harm in making explicit what is already implicit? It is doubtful if we can get a net definition of public order and morality, such as Deputy Costello seems to have in mind. It is founded, no doubt, on decisions of various kinds, but it is very difficult to get it in definite form. We have tried to get a clear, well-cut, well-defined definition of "public order and morality," and we have not been able to do it.
As regards the authority of the State, the only objection worth considering, in my opinion, that was raised to this Article was raised when the suggestion was made that it might be argued that criticism of Government policy, or of the Government if you like—even legitimate criticism of the Government— might be held to be somehow undermining the authority of the State; that would be held to be excluded. I have tried to meet that objection by making it quite clear that the rightful liberty which is guaranteed here includes that. I would say it would, even without express mention at all. But, lest the undermining of the authority of the State somehow or other was being capable of being in any way construed to suggest that criticism of the Government was not permitted, then I proposed to introduce an amendment. I do not care very much whether you put in "Government policy" or "Government".
Would it not be a good thing to put in "Government" and "Government policy"?
And to repeat them somewhere else to make them clear, like "public order and morality"?
It is no harm to do that.
It may be a great deal of harm.
I do not think it is. I think the construction of that whole clause is quite obvious. You start off by saying there are three or four certain rights enumerated in different paragraphs, and then you put over and above the question of right, the right to express one's opinions. You have a duty imposed, and it is in connection with the imposition of that duty on the Legislature that you have this subsidiary clause. My own view is that it is better, in view of the doubts that were expressed, to include the amendment there. I do not care very much whether it is amendment No. 49 (a). It was policy that was suggested, and policy would, perhaps, cover wider things than the Government would cover. Undoubtedly the conduct of a Department, in so far as it was an expression of Government policy, could be rightfully criticised there. I do not mind if you have both, but to say that introducing this makes it worse seems to me to be carrying some rules of construction to an absurd length.
You cannot do away with these rules of interpretation.
I know you cannot, but the Deputy knows they are capable of being applied in a very limited way, and there is nothing more nonsensical than to take rules of interpretation which are of a very well-defined character and say they apply somewhere else. I think these rules of construction are easy to understand. The situations where they apply are not difficult to recognise. But they are not applicable here. Any lawyer I have asked about this thing has been of the same opinion, that they do not apply here. It is altogether a complete straining of these rules of construction to say they do apply here. There is no use in arguing the matter further. I have given it the consideration I promised. I have done my best to meet what I consider it was really necessary to meet in the suggestions from the other side, and I accordingly urge the acceptance of the amendment.
I do not think the President has helped himself very much by the last remarks he has addressed to the House. Here we have got a Constitution, and this Constitution is supposed to be clear and definite. If the Constitution is to be of any value at all it should be a Constitution understandable by everybody. And yet we have the President gravely informing the House that he is using words here, "public order and morality", for which, as he says, it is utterly impossible to get a definition. He has struggled to get a definition and failed. What is his difficulty in getting a definition? Is it not as plain as a pikestaff? His difficulty in getting a definition is that he does not understand what the phrase means. Is that not perfectly plain? The President has no idea of what is meant by "public order and morality" and of what it comprises or does not comprise he is perfectly in ignorance. If he were not, why cannot he have a definition? Why cannot he even give a loose paraphrase to the House?
Take his next point. So far as I could gather from him, he thinks that the ordinary rules of construction do not apply here. That is what I understood him to say.
Oh, no.
That putting forth one thing limits the general proposition put previously—is that the rule of construction which he says does not apply, and if so, will he tell us why it does not apply? He then goes on to say that the courts can interfere. Can the courts interfere? Here you have a very curious thing. You give a general statement here, to begin with— the guarantee of the State—but then you go on to set out the limitations, and they are that the State shall do certain things. "The State shall endeavour ..." is an extraordinary expression, because I do not know how the State, as a State, can act itself. I presume what is meant by the State there is the Oireachtas. I do not know what else it can mean and if it has any other meaning I should like to hear it. If the State there means the Oireachtas, there is a special duty put upon the Oireachtas. It has not merely its ordinary duty, a general duty, but a specific duty put upon it which it must interpret itself. How can you tell the State how to do certain things? To tell the Oireachtas and to make it compulsory upon it that it shall endeavour—it is not "may endeavour" but "shall endeavour"—to pass laws to the effect that certain things, while preserving the "rightful liberty of expression" shall not be used to undermine public order and morality, is surely making it the judge. Putting a duty upon a person is surely making him the judge. Telling him specifically "You are to pass laws which, in your judgement, do that"—what is that but giving him complete control and taking it away from the courts?
What help are these particular words? I do not know what the words are at present. There seem to me to be two amendments before the House, one of them referring to the Government and the other to Government policy, and I do not know which the President has moved and which he is relying on. Let us take either of them. "Criticism of the Government"—it has already been pointed out that that is a practically meaningless expression. "Criticism of Government policy"—what does that mean? What is Government policy? It is not Executive action. There are two things. There is criticism of the Government, which, I take it, is criticism of the joint personnel of the Government, and there is criticism of Government policy, which, I take it, is the policy they put into legislation; but where is the vital thing—criticism of Executive action? Is not Executive action, much more than legislation, the matter which is likely to be criticised? There is no safeguard here as to criticism of Executive action. Why not? Yet you express policy and you direct the Dáil, and this Dáil is directing future Oireachtas to legislate on grounds which will allow criticism of Government policy. Is that directly not telling them to legislate on grounds which will prohibit criticism of Executive action?
It was strongly contended, when this section was being discussed on Committee Stage, that reference to undermining the authority of the State would prevent criticism of the Government. This amendment is being moved to ensure that it does not prevent criticism of the Government. The Opposition are opposing the amendment, and I venture to say that the motive of the Opposition would appear to be, at first sight, to prevent their being deprived of the use of an election cry. The President has gone out of the House, and I am sorry——
That is no harm to the Deputy.
——because I wanted to appeal to him to combine the two amendments and to make it quite plain that there was no intention to interfere either with criticism of members of the Government or the policy of the Government.
The Deputy is, I believe, now happily far removed from any question of anxiety about election cries.
Take care.
I think other people have taken care of that, so far as I can gather.
The sky will take another kite.
The Deputy puts the point precisely. I wonder would the Deputy answer the question: Does the inclusion of the phrase prevent the passage of law which would exclude the use of the exercise of free expression of opinion tending to undermine the Government through the criticism of Ministers? Does the phrase "undermine the authority of the State" override the including criticism of Government policy? Presumably, it does. If there was to be an exercise of the right of free expression which would concern itself ostensibly with criticism of Government policy, but could be ruled on by the courts, if the courts ever got a chance of ruling on it, as undermining the authority of the State, would the phrase now sought to be included stop the passage of that law? I suggest not.
My view is that criticism of Government policy is being defined by this amendment as something that does not undermine the authority of the State.
So that then, there could only be criticism of Government policy which would undermine the authority of the State. That is what the Deputy believes. So long as it was a criticism of Government policy, no matter how far it went, it could never have about it the atmosphere or the aim of undermining the authority of the State.
I suppose there arrives a point when——
Exactly, and, therefore, the phrase "undermining the authority of the State" overrides this matter of criticising Government policy. Who is going to be the judge as to whether the matter sought to be suppressed is legitimate criticism of Government policy or whether it has advanced into the dangerous region of being something tending to undermine the authority of the State? Is it the courts? I suggest not.
Why?
We have been deprived of the benefits of the President's presence for a little while. We were arguing as to whether the inclusion of the phrase "including criticism of Government policy" overrides the phrase "undermining the authority of the State." I suggest it does not. I suggest that if the courts could ever have knowledge of a law of that type, and if they came to the conclusion that the matter tended to the undermining of the authority of the State, the mere fact that it was put up in the form of criticism of Government policy would not save it. I suggest that that is right. I simply want to know who is going to judge as to whether the suppression of free speech has been properly done because it undermines the authority of the State, or has been improperly done because it is merely a criticism of Government policy. It is not going to be the courts, I suggest. If the President tells me it is, I want to ask him why has he put this matter about undermining public order and morality into the section which deals with laws and has not kept it in the overriding section which deals with constitutional rights?
I suggest that there is only one result. Whether it is the result of its being divided, I cannot say. In the first two lines, where the written guarantees are given, the authority to decide is the courts. When you come down and talk about the laws that may be passed, the mind that will decide is the collective body of the Dáil by a majority.
Only in the first instance; the courts may decide afterwards.
The Deputy believes that a law passed to prevent free speech can be taken to the courts. On what ground? On the ground that it is not a proper use of the power given in the Constitution? The power given in the Constitution does not set up anybody as the authority to decide. It does not say that it is to be established to the satisfaction of anybody. It simply says that the State—as Deputy Fitzgerald-Kenney has pointed out, the "State" in this case must mean the Oireachtas —shall endeavour to ensure that certain organs of public opinion shall not be used in a particular way. If the Dáil comes to the conclusion that the use of the Press, the radio or the cinema is going to undermine public authority, and should be suppressed, no court will inquire into that. The Dáil will not even refer to this unless it gets back to the habit, abandoned some time ago, of putting Preambles to its Bills. Otherwise, there will be no advertence to this undermining of public order or morality or the authority of the State. The Dáil will simply pass a law. There is no constitutional safeguard.
Even on the question of constitutional safeguard, I cannot understand the President. He says that the phrase "public order and morality" is difficult to define. Because it is difficult to define, he thinks he makes it clear by using it a second time. How you make anything clear by using it twice, I do not know. "Subject to public order and morality" in the constitutional provision is a difficult matter. How difficult it is will only be seen when cases arise, and these cases will be decided, on the first two lines, by the judges. We are to take this first vague phrase and clarify it by putting it in again, according to the President.
The only question we are called upon to decide now is whether or not it improves matters to put in the words in the amendment—to say that the right of criticising the Government is to be secured.
It is not secured——
That the right of criticising the Government is included.
It is not included in any right.
Let me put it this way—whether it is or not wise to say that these organs of opinion will preserve their right to liberty of expression and of criticising the Government or Government policy. I suggest that it is an obvious improvement to put in these words and that it is only special pleading to suggest that it is not. I said at an earlier stage that I, personally, would rather that the whole of that paragraph were out. But I see in it the consequence of a protracted agitation which has been going on for the last six months from which I feared worse things than we are actually faced with here. It amuses me to think that at the time I was having a Press controversy about free speech, the Irish Independent was giving great publicity to letters from people who were against free speech.
Against your idea of free speech.
Against free speech. They were giving publicity, in particular, to letters from a gentleman called McCaffrey, who is President of an association called "The League of Christ the King." Now, when he is writing equally ardent letters in support of the provisions of this Constitution with regard to the Press, they are not allowed to appear in the Irish Independent at all, though, of course, they appear in the Irish Press.
Better leave the newspapers out of the debate.
Deputy Fitzgerald-Kenney spoke of the term "public order and morality." I do not want anybody to think that I regard these words as without meaning because I said it was not possible to give an exact or net definition of them. They have a meaning. However, they are of an elastic type. Categories of offences are given in text books which would be regarded as against public order and morality. It would, in the end, I take it, be left to the courts to determine whether a particular offence was or was not against public order or morality— that is, in general terms, the peace and general welfare of the community. As it is important that the authority of the State should not be wrongfully undermined by the abuse of liberty, it was desirable that that matter should be indicated, so that there would be no doubt whatever that it came under the heading of one of the offences which could be committed. There is no difficulty in my mind except that the term "authority of the State," whether you put it in that form or leave it under the phrase "public order and morality," might be held to preclude legitimate criticism of the Government inasmuch as it might be said that undermining the authority of the Government by criticism would destroy its authority and would, therefore, be regarded as tending to destroy the authority of the State. In the amendment I have endeavoured fairly to meet that position. I am, therefore, pressing amendment No. 49A.
Will the President say whether amendment No. 49A, which purports to confer on citizens the power to criticise Government policy, would include the right to criticise Departmental action, Executive action and the individual members of the Government? What advice has the President got on these matters?
It was suggested that it would not cover the action of the Minister for Posts and Telegraphs. When there is joint responsibility, the actions of the Minister for Posts and Telegraphs would undoubtedly be part of Government policy.
Would it include criticism of the President's actions in sending a Bill to a referendum or refusing to allow the question whether or not a Bill was a money Bill to be sent to a Committee on Privileges? That is not Government policy.
There is nothing in this to prevent that.
It may be excluded by implication.
I do not think so at all. I have got no advice to that effect. The position of the President as defined in the Constitution, and the things he is responsible for and that he is not responsible for are set out.
Can you criticise him for these things?
I should say that the common-sense view is that you can. There is nothing here to prevent that. The "rightful liberty of expression" would include that. The fact that you throw up something, and indicate it, does not necessarily mean that other things are excluded. I do not think it holds in this connection at all.
The President spoke of "legitimate criticism," but the word "legitimate" is not here.
"Rightful," I think, is equal to "legitimate" in that sense.
And who will determine whether it is legitimate or not?
I believe that if there was a case where there was an obvious abuse by the Executive of that principle, the courts could be invoked to hold that that was unjust, if it was used to muzzle the Press or do anything of the sort—that it would be unconstitutional and wrong. If the Deputies opposite say that cannot be done by the courts, it seems to me that constitutional guarantees are of very little value.
Why?
The Deputy seems to suggest that because the Legislature has power to pass laws——
No, but when it is given in the Constitution power to pass laws.
But it is only given power to pass laws subject very definitely to a recognition of avoidance of interference with the rightful liberty of expression.
It is quite clear that the courts would have cognisance of that if there was nothing in the Article except the two lines.
My advice is that they have still.
It is clear they would have if there was nothing in the Article except the two lines.
Would the President consider the advisability of adding as well as "Government policy" something to make sure that all administration could be included, such as "of public officials"?
Is there any good in telling the Deputy that the more you direct attention to the few specific things you put in an amendment, the more certain you are to direct the attention of the courts to what is left out. The court in these things will not so much attend to what is given as to the matters that, by implication, are not included.
I move amendment No. 52:
In page 86, Article 40, Section 6, sub-section 1º, paragraph ii., to delete all the words from the word "Laws" in line 4 to the word "Oireachtas" in line 13, and substitute the following paragraph:
"Provision may be made by law to prevent or control meetings which are determined in accordance with law to be calculated to cause a breach of the peace or to be a danger or nuisance to the general public, and to prevent or control meetings in the vicinity of either House of the Oireachtas."
I think I indicated on the Committee Stage that I would move an amendment of this kind.
What is the difference between what is in the amendment and what is in the original draft?
The Deputy can see that in the one case you have the words, "calculated to," leaving it quite open as to who is to determine what is "calculated to." Here the words are replaced by the more direct phrase, "determined in accordance with law."
"To be calculated to".
I confess that, as far as I am concerned, this amendment appears to me to be mere rubbish. I do not know what it means.
Why did the President leave out "control of processions"? Did he forget all about it?
The Deputy was very careful to have it in Article 2A.
And the President has it. Let him not forget that because, according to himself, he is the only person capable of using it.
To my mind, this is absolute sheer nonsense. It says that "provision may be made by law to prevent or control meetings which are determined in accordance with law to be calculated to cause a breach of the peace." Now, who is to determine in accordance with law, and what law are they to be determined in accordance with? All laws, of course, that are inconsistent with this are now swept away. All pre-existing laws which control the right of the citizen to assemble peaceably without arms are abolished, except so far as they are saved by this clause. Here you say that provision may be made in the future to prevent or control meetings which are determined in accordance with law to be calculated to cause a breach of the peace. As I say, all pre-existing laws are done away with, and you have no power to make any alteration, even if there were any existing laws, because you have no power except the particular law to prevent or to control meetings. You have got no power to define for the future what class of meetings shall be prevented. You must first get a determination—I do not know whether that means a determination by the courts or not—that a meeting is calculated to cause a breach of the peace, and when you have got that determination you may then by law prevent or control it. To my mind, the section is simply humbug.
I am sorry I do not agree with Deputy Fitzgerald-Kenney that it is humbug. I think it is very dangerous. I think this is a limitation on the existing right of public meeting. We know what the right of public meeting was. Anybody who has been a student of Dicey's Constitutional Law remembers the appendix to the book where the right of public meeting is explained as being merely the right of one person to talk to another, multiplied in accordance with the number of people that are there in the exercise of that right. Here we have an entirely different matter. We are providing for a particular method of exercising that right which does not exist at the present moment. We are providing that the exercise of that right may be determined and controlled by law. In other words, a law may be passed by this House providing that any ordinary Civic Guard on point duty may think it his duty to prevent a public meeting in College Green if he likes. That is what it means, if it means anything at all.
We now have the lawyers differing on the opposite benches. That is rather interesting. I certainly cannot follow Deputy Fitzgerald-Kenney in his difficulty about the section. To me it seems clear enough that the Oireachtas can make laws to prevent or control meetings which are determined in accordance with law, which, I take it, will be made for that purpose, the determination to be set out as to the conditions under which meetings will be prevented or controlled.
I do not think anybody else would get that meaning out of the section.
The right to assemble peaceably and without arms is the general guaranteed constitutional right, but I do not think it would be possible for the State to continue without having some method in the public interest—we have exercised it in the past—of controlling or preventing meetings that might, in certain conditions, lead to a breach of the peace. That power must be safeguarded somehow, and the object of this section is to safeguard the power of the Legislature to pass laws which will be proper for the maintenance of public peace and to prevent the abuse or the misuse of the right of public meetings. Again, if there were a situation in which there was an obvious abuse of its power, I take it that the courts would interfere and say that it was an abuse.
Even if the meeting were prohibited and the matter was determined by the Legislature as being necessary?
Oh, I agree with the Deputy that, in this case, it is quite clear that the courts would be precluded by the law itself—that it is the law itself that would settle the conditions—but I hold that that does not apply to the previous case.
But it means that you have taken away their right, as a constitutional right, to assemble peaceably.
We cannot have it both ways. There is a general indication there of a right to be used properly: that is, without endangering the public safety. You must give to the Legislature the power of regulating the exercise of these rights in such a manner as to ensure that the exercise of these rights will not be contrary to the public good. That is absolutely necessary; you cannot avoid it, and you cannot tie yourself up by precluding the Legislature from doing it. The Deputy may say: Then what is the good of your phrase here at all—this phrase about the right of the citizens to assemble peaceably? He may ask, what is its value? I say that it is of value, and that it is a general headline to the Legislature.
Which they can neglect.
Yes, unfortunately, they can.
And the courts cannot interfere?
Unfortunately—and the Deputy knows it quite well—we cannot provide by any Constitution against the possible abuse of its powers by the Legislature in future. It is vain to attempt to do it. All we can do is to set headlines for the Legislature, as we are doing here—headlines with regard to the things the Legislature should aim at. If, however, you are going to guarantee this right, without its being subject to some control— and there is no way to control it properly except in this way—if you give that right and guarantee it, without giving any opportunity to the Legislature to exercise control over meetings, then it is quite clear that you would have a state of chaos. That is what it would amount to, and that right, as such, never was exercised.
Nobody has suggested at any time that there should be an unlimited right of public meeting. Nobody has suggested at any time that disorderly assembly should be carried on, or anything of that kind. However, we have got a very interesting admission now from the President as to what is the meaning of a constitutional guarantee, and the definition we have got from the President of a constitutional guarantee is that the constitutional guarantee is to be nothing more than a headline to the Oireachtas as to what it is to do; but as a guarantee to the subject, which it is supposed to be, against the Oireachtas—as a guarantee to the citizens of the State of certain rights that the Oireachtas shall not have power to interfere with—we now discover that it is not that guarantee at all but that it is just a headline for the Oireachtas. So much for this new Constitution.
The Deputy knows full well that we have here, in general, as I pointed out long ago, to try to get a balance as between the common good, or the good of the public welfare, and the good of the individual as expressed by the exercise of his rights; and one of the chief functions of the Legislature is to preserve that balance; and by any constitutional Articles of that sort, you cannot, in my opinion, properly deprive the Legislature of that power. If it is to be a question between the general good of the community and the good of the individual, the determination of that, in any particular case, will have to be left to the Legislature which, after all, is composed of the representatives of the people, who are interested in preserving the individual rights, and many of us who are arguing here for leaving the door open so that the Legislature may be in a position to deal with any circumstances that might arise, would probably find ourselves, in a particular case, arguing not on the side that a law should be enacted, but against the enactment of that law. For instance, if this question came up that we had a moment ago—the question of the liberty of expression—I would probably find myself against any use of that power which would create another evil which might be more dangerous than the evil we are trying to deal with.
And I can well imagine all that the President would talk on that.
Yes, it is quite possible that I would talk on that.
Not alone "that," but I can well imagine "all" that the President would talk.
Well, the Deputy has a good deal of "all" to his record also. The point is that we have had to get a balance here between preserving the greatest possible liberty for the individual and seeing that that liberty is not used to the detriment of the common good.
There is one question I should like to ask. If everything is to be left to the Oireachtas, what is the use of going through the farce of enacting a Constitution at all?
That is carrying it to the other extreme again.
That is what the President said.
It is a bit of a farce.
The Deputy knows that, pretty well, the middle of the road is the right thing in these cases, and that going to either extreme is wrong.
The President talks about the balance. Now, let us look at this balance. On the one hand, we have a public right given, subject to public order and morality and subject to the determination of the courts, and immediately we find that provision may be made by law to prevent or control meetings, and once a law is passed here the courts cannot touch it. Provision may be made to prevent or control meetings which are determined by law to be calculated to be a danger. The ordinary way that it is determined that they are calculated to be a danger is that it is left to a member of the Government or a member of the Civic Guards to say that such a meeting is calculated to do certain things. Accordingly, the law comes along and says that a Civic Guard can say that a meeting is calculated to be a danger or a nuisance to the general public, and out goes the right to peaceable assembly.
If the Legislature would pass such a law.
It can pass such a law under this. This phrase not merely invites them to pass such a law, but gives them the power to do it, shows them the way to do it, and tells them how easy it is to do it. It says that all you have to do is to get some law passed here, and it will rule when meetings are declared to be calculated to be a danger or a nuisance. First of all, you have the liberty for the exercise of the right guaranteed, subject to public order and morality, and public order and morality is analysed and determined by the independent judiciary. What do we put instead of it? We find that the Dáil in its wisdom may pass some piece of legislation giving over, say, to a Minister—probably the Minister for Justice—or to a Civic Guard, the question of the determination of this matter, and once either of them pronounces, then the courts are ousted. That is the balance the President talks about. Did the President ever read, or did he ever see, the play, "Thompson in Tír-na-nÓg"? The Thompson in the play was a man who wanted all his rights and who went around parading with his "ould gun" until one day it went off and he was "blew up," to use his own phrase? Well, I think there is a great deal of that in this parading of rights in this Constitution and that they may be "blew up" too.
Will the Deputy take responsibility for precluding the Legislature from having such power?
I would leave it to the courts. That is the difference.
I move amendment No. 53:—
In page 86, lines 33 and 34, Article 41, Section 2, to delete the words "life within the home" and substitute therefor the words "work for the home".
I want to direct attention to the phrase in the Draft "in particular the State recognises that by her life within the home". I was not present when the speeches were made on a similar amendment on the previous stage, but as I read the debates, the attitude of the President was that he was insisting on woman's value in life and what women did in the way of adding value to life. He happens to have enclosed all that by the phrase "life within the home". I do not think these words, "within the home", should have been used at all, but seeing that an amendment to delete the word "within" was deleted I am now moving to delete the words "life within the home" and to substitute the words "work for the home". That will mean that whenever we do look at whatever women do, in order to ascertain what value is to be associated with it, we shall look at the work done, not merely within the home but what has to be done for, and towards, the upkeep of the home.
I do not think any point would be gained by discussing this matter further. On the last day I clearly indicated the intention of this paragraph. We had an amendment of practically the same type before, and there seems to be no reason for going over the same ground again.
I made a suggestion when we were last discussing this which I understood the President was going to consider. I do not know whether he is prepared to consider it still or whether he has decided against it. My suggestion was to substitute the word "function" for "life", the idea being that "life" might be read to imply the whole of woman's active life in the home, whereas if you use the word "function" we might cover woman's function in the home and other activities outside.
I remember now that the Deputy used the word "function." I do not agree that the word "function" would suggest the same connection with the home. I do not see that it would necessarily add anything to the section.
That is a gem.
I should not like to start discussing it with the Deputy again.
That is the brightest crown in the Constitution.
The fact is that I have considered this question. I am prepared if there is anybody in favour of it to substitute the phrase "by the performance of her duties within the home," but I did not think that that would improve matters. Consequently I did not put it forward. I think what is intended is quite clear.
If it is not, you can ask elsewhere and at a later time say what it does mean.
I move amendment No. 54:—
In page 88, line 4, Article 41, Section 2, at the end of sub-section 2º, to add a new sub-section as follows:—
Nothing in this section, however, shall be invoked to prohibit, control, or interfere with any citizen proposing to engage or being engaged in any legitimate occupation for remuneration.
I am moving this amendment to remove an anxiety that is said to have been induced by the phrasing of sub-section 2º. We were told that this Article was framed in the interests of women, and that we were going to prevent women being driven out to do work to the neglect of their duties in the home. I want at any rate to ensure that, if women want to work at certain things, they will be allowed to operate their free choice in the matter and that there will be no sex disqualification or discrimination in regard to that matter.
There is nothing about sex disqualification here, but the full implications of the Deputy's amendment I do not know. I do not know whether you could limit the hours of work under this amendment.
"Nothing in this section."
I do not know whether, if there were a general law for the purpose of limiting the hours of labour in a factory, this would not possibly be caught up. In any case, I do not see that there is any need whatever for interfering with the clause as it stands. The State having acknowledged the work that is done in the home by women performing their duties to the family, the clause states:—
The State shall endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.
I cannot conceive that being misused. The purpose is to see that economic necessity does not force women, who want to do their duty in the home, out to work.
What about the addition?
I cannot accept that.
Why?
Because I do not see any purpose in it.
Had you read it until to-night?
I had.
It did not seem so.
I had read it.
You did not advert to the opening phrase until your attention was directed to it.
After all, something is to be gained by allaying fears. I am sorry the President has decided not to accept this amendment of Deputy McGilligan, because I cannot see any possible danger lurking in it. It seems to lay down a very reasonable principle.
I do not know the implications of it.
Give us some of the fears you imagine.
I have indicated them already.
That was before you read it.
Oh, no. I still hold that it is possible to use that section to say, for instance, if there was a limitation on hours of labour in a particular factory or something of that sort, that it would be interfering with the citizen "proposing to engage or being engaged in any legitimate occupation."
You mean that.
Yes.
"Nothing in this section, however, shall be invoked to prohibit, control or interfere with any citizen proposing to engage or being engaged in any legitimate occupation for remuneration." The section to which it is proposed to add that states: "The State shall therefore endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home." The President says that he thinks the amendment might be used in some way to prevent the shortening of hours of work in a factory.
Yes, where mothers were concerned. Its implications are too broad. I do not want to go into the matter now.
You do not know anything about it. You have not an example to give.
I have. Since this morning I have looked into the Deputy's amendment and I came to the conclusion that it would not be well to accept it.
Certainly the House should be swayed by such eloquence on this point! It is the most pitiable example of attempted argument that any deliberative assembly has ever listened to.
We have had a great deal of argument from the Deputy.
It is nothing but mulish stubbornness.
Amendment put and declared defeated.
I move amendment No. 55:—
In page 88, line 11, Article 41, Section 3, sub-section 3º, after the word "State" to insert the words "but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution", and to delete in line 12 the words "in Éire" and insert in the same line after the word "marriage" the words "within that jurisdiction."
The purpose of this amendment is to see that the mere fact that a marriage was dissolved in another State would not of itself, by itself, prevent a person from being married in this country. I think everybody will agree that if the marriage is, according to the laws of this country, a subsisting valid marriage, one of the partners to that marriage—even if it were dissolved by the civil law of another State—should not come here and get married.
Notice taken that a quorum was not present. House counted and 20 members being present—
Has the President considered or got considered the whole question of the effect of this clause in the Constitution dealing with divorce? We have laid down here in this country long ago the principle that we have no legislation with reference to divorce. Now we are putting into the Constitution a certain clause. The President has been careful, when proposals were put up from this side, to say that he would not accept them because he did not understand the implications of them. Does the President understand the implications of this clause dealing with divorce, from the point of view of international law in the first place and from the point of view of the canons of the Catholic Church in the second place?
Both these points of view have been discussed with me, and I am satisfied that this is satisfactory.
And, I suppose, because the President is satisfied, it is satisfactory?
Is that ex-cathedra?
The Deputy raised a point and gave me an example on the last day. The only point raised was whether the phrase as it stood would mean that the mere dissolution of a marriage—whether, according to our law, it was a valid marriage or not; whether it was invalid ab initio, or was a valid marriage according to our law—would, of itself, prevent one of the persons involved from marrying here. That was pointed out by the Deputy, and I think it has been met by this amendment. No other point of that sort has been raised. Naturally, a matter of this importance was one which did receive very careful consideration, and if Deputies raise any particular points about it we will be able to meet them.
I move amendment No. 56:—
In page 90, Article 42, Section 4, line 1, after the word "education" to insert the words "including school books, requisites and a free meal during school hours for each child attending school."
In this Constitution we are setting out to declare that the State shall provide free primary education, presumably for children of school-going age. As we are making a constitutional provision for education of a primary character, I think we ought to go further in that respect, and recognise that the mere provision of primary education, in existing circumstances, is not adequate provision, having regard to the moral responsibility which ought to devolve upon the State to ensure that education is imparted in the best possible circumstances and under conditions which will enable the children to absorb the maximum amount of education. The object of this amendment, therefore, is to provide that the State shall supply free primary education, including school books, requisites and a free meal during school hours for each child attending school.
I think it is well within the knowledge of members of the House that, in the case of thousands of children who are at present required to go to school, their parents are not in an economic position to purchase school books for them. The result is that we have schools provided, we have teachers provided, but through economic necessity the children are forced to go to school without school books, and have to try to absorb education by looking over the shoulder of another child to see what subject is being taught. Similarly, we have children going to school whose parents are in such an economic plight that it is not possible for them to provide the children with sufficient food in order that their frail bodies may be equipped for the task of absorbing education. Again, economic necessity is the root cause of that kind of evil and that kind of hardship which is inflicted upon school-going children. The object, therefore, of this amendment is to ensure that if the State is providing free primary education it should also provide school books, requisites and a free meal during school-going hours, so that every child attending school may have an opportunity of absorbing education free from those disabilities which go hand in hand with economic depression in the child's family. I think if the State wants to endow education in this way they ought to recognise that education does not merely consist in providing a school building and a teacher, but should also include the provision of books, requisites and a meal at school. In asking that that should be done here, I am not making any unusual or revolutionary demand, because in many other countries school meals and school books are provided for school-going children. Under a Constitution which says that the family has inalienable and imprescriptible rights, I think the best way in which that could be recognised would be by ensuring that the children in the family would be provided with education under circumstances which would enable them to derive the maximum benefit from such educational facilities as are provided.
I do not propose to accept the amendment. I think matters of that sort can very well be left to be dealt with by law. Where there are questions of public controversy we cannot decide them in the Constitution. If I were to argue that question, or enter into a discussion of the merits of it, apart from the Constitution, there are many things I would have to say about it. I agree that it seems to be waste to provide teachers if proper education cannot be given, and if an essential necessity is not being provided. There is another side to the picture. The question is: how can we best, so that there will be least abuse and most value, meet that situation? I have for a long time held the view that there is a great deal of waste about books in schools. I think the present position about text books in schools, and text books generally is a deplorable one, but it is not an easy one to rectify. I hope to see that situation met in some way in a relatively short time. I think there should be at least cheap books. I am afraid of completely free books, but cheap books ought to be available. If we had suitable text books, I think the old system, by which a book in a family was passed from one child to another, by which the elder children were able to become private tutors, so to speak, to the younger ones, and parents who had used the same text books were also able to be tutors, was very much better than the present system. Every household in which there are children is full of books that, in some cases, are worthless, and that seem to me to be almost rubbish. However, that is another day's work. I am not going into the merits of the question now. It is not a matter we could deal with in the Constitution.
This will not mean another Bill being introduced for Second Reading before the election?
No. I am not dealing with it.
This is a concrete example of the sham in the Constitution.
I move amendment No. 57:—
In page 92, Article 44, Section 2, to delete sub-section 2º, and substitute the following two sub-sections:—
2º. The State guarantees not to endow any religion.
3º. The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief, or status.
That is simply to carry out the promise which I gave to separate the question of endowment from the general question of imposing disability on the ground of religious profession, belief or status.
Did the President consult Deputy Keely about this amendment?
I want to ask him that seriously. Deputy Keely told me on an amendment I was moving earlier that, if some words of mine were accepted, and if there was a conscription law passed, there could not be an exception made in favour of the clergy. Let me read what the President has: "The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status". So that if there is conscription, the clergy are in with the rest. Is not that so?
I say discrimination as between those who profess different religions.
That is not here.
That is clearly the intention.
That is not here.
It was in the old Constitution.
That is what the President means, but it is not what is here.
Deputy Keely thought my words were an insidious attack on the Church. I said it was a matter for derision. The President does not say so. I was proposing a rough and ready amendment, and, naturally, my words were not very definitely considered. Consider this, if the Constitution is to carry, in the religious section, this phrase: "2º. The State guarantees not to endow any religion: 3º. The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status." If there is going to be conscription, can you exempt the clergy under that?
I say, yes.
I want to know is it possible to exempt them?
I would say, unhesitatingly, yes.
It is possible?
Yes, provided you do not discriminate between clergymen of one religious profession and those of another.
You can discriminate?
Are they all in, in the event of conscription?
I will not say what will happen, but I say that this would not prevent the Legislature from doing it.
I see Deputy Keely has arrived. The President's view now is that there could be an exemption made in favour of the clergy generally, but not in favour of one body as against another. Is that what is meant?
I would say the meaning is, as it was in the old Constitution, that you were not to discriminate unjustly as between persons of one religious belief and another. I think that is clearly the meaning of it there. I do not think that that would prevent the Legislature from discriminating and relieving clergymen if it thought wise from the application of a conscription law. What you could not do is, you could not do it for one religious belief and not give the same concession to others.
Is there any advantage in leaving in the words "or status"; if it merely read "The State shall not impose any disabilities or make any discrimination on the ground of religious profession or belief"?
If "belief" were the only word in it the argument is sound, but once you put in "profession or status" it extends it.
The Deputy may think that that is the interpretation, but I have given mine. The meaning in the context is clear. I have no doubt that the meaning in the context is that there shall not be unfair discrimination in favour of those of one religious belief, and unjust discrimination against those of another. I think it is quite clear that that is the meaning. If we have to bring Deputy Keely's point into this connection, I would say that, if you wanted authority for making an exemption, you could do it on the ground of having due regard for social function.
Discrimination on the ground of religious profession means that you can discriminate between all clergy and the laity, but you cannot discriminate between the clergy inter se. That is not in the Article. I do not care what is meant. We will not have this Article with the glosses on it here— we will have the Article alone.
Yes.
It is seriously suggested that that allows discrimination as between the clergy as a body and the laity as a body, while it does not allow discrimination between groups of clergy?
I would hold, yes.
You may hold that in a very sincere way, but it is not there.
On the whole context.
On the ground of different religious belief or status. Clearly that would carry what is said, but that is not there. It is on the ground of religious profession. Supposing there is a conscription law passed and a general exemption of the clergy in it, surely it is a law making a discrimination on the ground of religious profession. What else is it? I do not care whether it should be there or not, but we must argue on the merits.
I will look into the matter from the point of view of the whole context. That is a repetition of the clause that was in the old Constitution. I told the House why I thought it wise to take advantage of these Articles. We lived under them for a number of years. There had been no criticism of them. They were found satisfactory. We adopted these and the word "discrimination," too. I think that in the whole of that context the intention is clear that it is discrimination in favour of one denomination against another; an unfair discrimination is the meaning there. I would deny, straight off, Deputy McGilligan's contention. I do not see anything wrong with the clause. If this were a single clause and we were asked to determine what was its meaning, I could only say that discrimination would be only differentiation; although unjust discrimination is in some contexts unfair discrimination. But in this context I would have to admit that discrimination here would be on the grounds of religious profession, belief or status, and would seem to imply that you could not make an exemption if you are depending on that alone. But my point is we are not depending on that alone. There is a clear indication that "social function" would cover it. However, on further examination, if there is anything to be covered by that, I am prepared to look into it; but unless there is very good reason for changing it, I prefer to leave it as it was for a number of years. I do not want to introduce any new element.
"The State guarantees not to endow any religion." The distinction there is endowment of religion. Then there are three other conditions—religious profession, belief or status. Religious belief means what the President is arguing about. Religious profession means something. What do they mean? What do they add to the phrase "religious belief"? Article 8 of the old Constitution did speak of making "any discrimination as respects State aid between schools under the management of different religious denominations——"
Drop out this thing about "profession" and "status," and leave "belief." That is all that is necessary.
I will have to look into it again. I did satisfy myself that the word "status" did cover this and that it had a meaning in the old Constitution and was intended to cover a very definite matter. At the moment it had escaped my memory. I will look into it again and see how the matter stands in the light of criticism.
I move amendment No. 58:—
In page 94, line 5, Article 45, to delete the word "exclusive" and in the same line after the word "Oireachtas" to insert the word "exclusively".
This is simply a verbal alteration—to delete the word "exclusive" and after the word "Oireachtas" to insert the word "exclusively".
Not even the courts are going to take cognisance of this.
It is right to have it properly expressed.
It does not matter a row of pins.
I move amendment No. 59:—
In page 96, Article 45, Section 3, sub-section 2º, line 5, before the word "against" to insert the words "and the workers".
This sub-section opens with: "The State shall endeavour to secure that private enterprise shall so be conducted as to ensure reasonable efficiency in the production and distribution of goods and as to protect the public against unjust exploitation." We have a declaration here that it is desirable to protect the public against unjust exploitation. I would imagine in providing an Article of that kind the President would have thought of those who are actually engaged in that kind of enterprise.
Who are "the public"?
I suggest the consumers of the goods produced by the enterprise. If the enterprise happened to be a bacon factory, a worker in it who did not like bacon would not be a consumer. We have an Article here saying that private enterprise shall be conducted so as to ensure reasonable efficiency in the production and distribution of goods. The Article refers to the public in that context. Surely that is meant to protect the public against exploitation in the production and distribution charges or to protect the public from being held up to ransom in order to obtain unreasonably high prices for goods produced. In this Article it is apparently only those who are likely to be exploited as consumers who are protected. There is no protection given to those who are immediately employed in the enterprise. Such protection given is for those who were consumers.
I do not think anybody would hold that the term "public" used here would include those who are actually workers engaged in the industry. Therefore, if this Constitution is to have an Article protecting anybody against unjust exploitation from private enterprise, surely the protection ought to be for those who were actually engaged in the enterprise and who may be exploited and who are a greater subject for exploitation by the enterprise in the form of asking them to work for low wages or for long hours and under such conditions as would constitute a very severe hardship upon them. If the President thinks that "the public" includes "workers" I do not think he is correct in his contention. If it is to include the workers this section ought to be given a better definition.
The Article reads: "shall be so conducted... as to protect the public against unjust exploitation." The question is "the public," I take it, as opposed to the private owner. If the word citizen were used the Deputy would not object. The view that the Deputy takes is that in his particular context what you want to prevent is the exploitation of the consumer. That would be narrower than the word "public" used here. However, I will put in the word "citizen" instead of "public." It will then read "to protect the citizen against unjust exploitation."
Including resident aliens?
I do not know what the Deputy is after now.
Does "citizen" include "resident aliens"?
As we use it, no.
As we use it, yes.
I take it that when we want to do that, we will have to use the word "person," not "citizen."
So all these rights granted to citizens are to nationals?
I take it when we use the word "citizen" here that we mean citizen. I know we have been, in some cases, anxious about that, and where there was a question of doubt we put in the word "person."
Where the dwelling of every citizen is declared to be inviolable, does that mean that an alien's house can be broken into?
The Deputy knows quite well that when you guarantee the rights of a certain class, you are not going to abuse the rights of another class.
But you are not giving them definite constitutional protection.
We are giving constitutional protection to citizens.
But the house of a resident alien is not constitutionally guaranteed.
That might be the strict reading, but in practice it would be different.
That is contrary to all constitutional practice.
Are we not now discussing an entirely different matter?
Not quite. The point seems to be what we would mean if we substituted the word "public" instead of "citizen".
Would the President consider putting in something to safeguard employees from exploitation?
The question might equally arise as to whether there might not be exploitation of the owners, too. You could so manage matters that even the owners might need to be safeguarded.
Let us take the killing of calves, for example.
They did not have to kill them. There was no compulsion.
What?
There was a price offered.
There was no compulsion, because the market was destroyed?
May I call attention to a ruling given by the Chair on a much narrower matter than this? I was not allowed to talk on the section, not to speak at all of calves.
If the words "all concerned" were substituted for the word "public," would it improve matters?
The President says that he believes the words "the public" would include the workers.
I believe it would cover all who might be concerned with the conduct of this enterprise.
The section opens with the declaration that private enterprise shall be so conducted as to ensure reasonable efficiency as regards production and distribution, and as to protect the public against unjust exploitation. Clearly, the protection talked of here is protection against the manner in which a private enterprise is being conducted, and obviously, in the sense in which the matter is referred to here, the protection is against unfair or unscrupulous management.
Put in all the words you desire; it does not matter a fiddlededee what you put in this section. I suggest we all put in a word.
Why can we not put into this section the phrase "so as to protect the worker and the public generally," or "citizens generally"? Obviously, when you talk about exploitation in this sense, I think it is essential to give protection to the workers.
My difficulty about singling out classes is this — that I feel if you put in the workers you must of necessity put in other classes. The intention was to cover everybody by such a word as "public," and not confine it, say, to the consumers.
The word "public" might not include the owners; they might be a corporate body.
But they would also be included in "the public."
And they might be aliens and would not come in under "citizens."
Will Deputy Norton say what benefit he thinks this will confer on workers?
Well, this particular protection is being given to the public and not to the employees.
What protection?
The protection of the mentality behind this particular section.
Now I am as wise as I was before. The fact is that this Article confers protection on nobody, and it is specifically declared that it is not to be taken as conferring anything on anybody at any time or for any reason. It is just put in here to give the President an opportunity of taking a literary whirl and that is all.
I want to test who is being protected here in this Article.
Nobody. Someone may be protected in somebody's mentality, but it is nowhere else.
How will this Article be promulgated? Will it be by means of post cards? What is supposed to be done with this Article?
It is going to be a general headline approved of by the people as a whole — by the majority of the people, I hope.
And kept out of the law?
It will be approved as a headline for the Legislature. The difference between Deputy Norton and myself is this: I would rather have a comprehensive term to cover, as Deputy MacDermot suggested, all concerned, both the workers and the owners. I could imagine conditions in which the owners were being exploited, too. I do not want to indicate that it is only for a certain section or certain sections of the people. The word "public" was the widest word to cover all that. The Deputy is reading it as if "the public" meant those not actually engaged in the enterprise — what I might call the outside public. I am afraid the criticism of Deputy McGilligan would be more or less against the use of the word "citizen" if we were consistently going to use "citizen" in the sense in which it is defined as being a person of Irish nationality, belonging to the nation.
Why not put in "the world" instead of "the public"?
The Deputy was helpful up to the present, but now he is beginning to be unhelpful.
May I put it this way to Deputy Mrs. Concannon, that if I admonish her to-morrow that her great-grandfather's great-grandaunt did not think a certain type of legislation was good legislation, and she ought not to approve of it, she would probably reply that the aunt died somewhere in 1692 and the views that obtained then do not obtain now. This Article simply puts on record the current opinion of the great great grand-uncles of our great great grand-nephews. This is supposed to direct Oireachtas Eireann for all time, and it is addressed to posterity, if you please. What on earth would our great-grandchildren care about what we think is a desirable form of law? It is quite a different thing if we lay down a fundamental law and give people constitutional rights, because if you want to change that law you first have to convince the people that it should be changed. But you need never change anything to depart from Article 45. Therefore, two courses are open, one, to pay no heed to it, and the other is to let everybody put in a word. It does not matter what you put in or what you do not put in; it has no effect on anybody at any time or anywhere.
I do not quite agree with that. I think this raises important points in connection with legislation that may be introduced into this House.
I admit that at first sight it did not appear that the owners would be capable of exploitation under this section. I do not think that the workers need safeguarding, that they need special protection, because we have the whole system of social legislation which will be dealing with that aspect. The intention was that the words "the public" would protect all concerned, but "all concerned" seems by itself a rather indefinite phrase.
What about "safeguarding the workers against unjust exploitation"?
That is getting nearer to it, I admit——
Could you throw lots for it and let us get on?
——except that Deputy McGilligan and Deputy Costello would be getting rules of interpretation.
It does not matter. You can put anything in here.
There is nobody ever going to interpret this. It is only a general guidance.
The Legislature will interpret it.
As it pleases, and that will be mainly by not bothering their heads about it.
The Deputy will never be there to interpret anything.
What does Von Blomberg say?
Is the President accepting these three words?
As the thing is so general, there seems to be no objection to the use of such general words as "all concerned".
"All concerned" gives it the atmosphere of "all and sundry".
There is a good phrase now—"all and sundry".
We may possibly be able to omit the words altogether and get some general phrase to guard against unjust exploitation.
To prevent unjust exploitation.
I should be prepared to accept a phrase like "to prevent unjust exploitation".
I move amendment No. 60:—
In page 96, Article 45, Section 4, to delete sub-section 2º, and substitute the following new sub-section:—
2º. The State shall endeavour to ensure that the strength and health of workers, men and women, and the tender age of children shall not be abused and that citizens shall not be forced by economic necessity to enter avocations unsuited to their sex, age or strength.
I already indicated that I would accept the first part of the amendment which Deputy Rowlette moved on Committee Stage, the amendment of which this is part. He suggested that there, with an earlier part, were two propositions, and I feel that that would be out of the context. That particular part introduced propositions which, if they were to be put in at all, would be more appropriate elsewhere. We say in part of the Constitution that the citizens may through their occupations find the means of making reasonable provision for their domestic needs, and the first part of the proposition is not really ad rem.
I agree with the President that the two sections of the proposition I put before the House last week were more or less independent of each other, but I do not mind where the President puts it in. I should be glad, however, to learn whether he is considering putting in some statement which would represent the sense of the first part of the amendment.
I have considered it, but it is very hard to take a document like the Constitution to bits and to put in bricks here and there. You throw out the whole structure, so to speak. I have considered it, but I do not see where I can put it in appropriately.
The President has not quarrelled, I understand, with the meaning or the sentiment of it. He has said that it would be irrelevant to this section, and I am not quarrelling with the view; but if he does not quarrel with the sentiment, it seems to me a very fundamental thing that it should be got in somewhere. So far as I can see, there is no statement anywhere in the Constitution that women have an economic equality with men. The President has stated, and I agree with him, that they are given political equality in the Constitution, but I do not see anywhere that they are given economic equality or economic freedom and I would ask him again to consider it to see where he could best fit it in.
Deputy Rowlette ought to remember — I hope he will pardon my reminding him — that an amendment of mine, amendment No. 54, was refused to-night. In the section dealing with the family and in the particular section dealing with mothers, I moved to insert: "Nothing in this section"—the matter dealing with mothers—"shall operate to prevent, prohibit or interfere with any citizen proposing to engage or engaging in any legitimate occupation for remuneration." That was refused. The dagger is still unsheathed. It is there for use and women may be discriminated against definitely and entirely on the ground of sex in respect of employment. I have amendment No. 61 down but I do not care much about discussing it or any amendment to Article 45, it having the status it has in the Constitution, but let us consider what happens. We opened that Article with a section in which we mark out for distinction the inadequate strength of women and the tender age of children, and we went on solemnly to declare, for the general guidance of the Oireachtas, that women or children should not be forced by economic necessity to enter avocations unsuited to their sex, age or strength. I wanted to remove from that the reference to women so that the section would read:—
The State shall endeavour to secure that the tender age of children shall not be abused and that they should not be forced to enter avocations unsuited to their age or strength.
The President does a double twist and where we previously pointed to the inadequate strength of women and children, we now, if it pleases you, point to the inadequate strength of the whole lot of us, men, women and children. We now solemnly give, for the guidance of the Oireachtas, this admonition:
The State shall endeavour to ensure that the strength and health of workers, men and women, and the tender age of children...
the children still get special mention of their age
.... shall not be abused ....
the sting is still in the tail
.... and that citizens shall not be forced by economic necessity to enter avocations unsuited...
to what? Their sex, age or strength. Cut out the word "sex". Why leave it in?
I have already indicated that this is practically the amendment that was proposed by Deputy Rowlette last week.
There is still the sex discrimination in it.
It was proposed to replace the original text and I agreed to accept it. The second part of Deputy Rowlette's amendment was:—
The State shall endeavour to ensure that the strength and health of workers and the tender age of children shall not be abused, and no citizen or child shall be forced by economic necessity to enter avocations unsuited to their sex, age, or strength.
I have practically reproduced that here.
And the President thinks that a return for that part of Deputy Rowlette's amendment which he has cited? That amendment opened with this preamble:
"The State recognises the right of all citizens to work and obtain work, and that in this respect the rights of men and women are equal."
What follows is overridden by that preamble. That is one statement of fact. What we have here is an entirely different one.
This is one in this context.
It still contains the element of sex discrimination and there is no positive statement that men and women are to be recognised as having equal rights in regard to the obtaining of work.
Having equal rights to gain a livelihood.
Where is that?
It is not there.
Where is it at all?
It is not in that context.
Where is it at all?
It is probably in their occupations, where we say: "The citizens may through their occupations find the means of making reasonable provision for their domestic needs."
Where is that?
In Article 45 (2) (1).
That is no statement with regard to the absence of discrimination. It does not prohibit discrimination.
I have said to the Deputy that we cannot, with our eyes open, close every possible door from the point of view of social legislation which will be to the benefit of the community as a whole. The point is that you are leaving these questions as a matter for the future to determine. We are looking for rights that were not guaranteed hitherto, and what I am prepared to stand on definitely is that men and women are entitled to and have an equal right to a livelihood, being members of the community. A further right than that I cannot see. I doubt very much whether two men have an equal right to a particular occupation. I do not think they have. Differences of capacity might make one of them quite unfitted, and if we are going to read "an equal right to work" as meaning that if there is a particular position vacant, two of us have the same right to it, I think it would be absurd. We would not have the same right to it. It would depend on our ability to perform the work. You cannot say off-hand that citizens shall have a right to work if by that you mean other than the right to earn a livelihood. You cannot restrict it and be honest. Whether they be men or women, well-equipped or ill-equipped, they have a right to a means of livelihood. That is a fundamental right.
It is not in the Constitution.
There are a large number of matters which are not in the Constitution. Nobody suggested that this Constitution should be a catalogue of individual and family rights.
No Article says men and women shall have an equal right to a livelihood.
Except in so far as it is implied in Article 45 (2) (1). If the proposal to amend in one place is of no use, it is of no use in the other place.
These are fundamental rights not guaranteed by law.
The Deputy would not have gone as far as I have gone in guaranteeing those rights. I was one of the first to make the statement which the Deputy quotes at me in which I used the word "enmeshed." I hold that if persons are prevented, because of being members of organised society, from doing things to get a livelihood that they would not otherwise be prevented from doing, it is the duty of the community to see that they get that livelihood. I am quite prepared to put that in Article 45 or elsewhere if I can get a place for it.
You have not done it.
Because there is a host of other things not mentioned. There is no pretence that this Constitution is a complete catalogue of individual and family rights. We are trying to provide certain foundations for a State organisation and, on the social side, we are providing certain directives. An equal right to work is not a thing that can be predicated of men or women. I do not think it is a true proposition. Whether they be men or women, well endowed or ill-endowed by nature for the competition which exists, they are entitled to an adequate means of livelihood. From that point of view, there is equality of right. I am quite prepared to put that into an appropriate section of the Constitution.
The President has admitted the principle for which I am contending. He admits there is a fundamental human right. Will he consider the insertion of a suitable provision?
I would not put it in in this connection at all.
I believe there is a special reason for doing this. It would allay the anxiety of a large section of the community if the President could find a suitable place in which to insert a provision such as I have suggested.
I shall try again. This is something apart, and it is hard to get a suitable place in which to insert it. The right that should be guaranteed by the community is, I think, the right to an adequate means of livelihood. What is "adequate" would be difficult to define, and we do not want to have vexatious cases brought before the courts. If we put it in the courts section we would have such cases.
Is it to be a cognisable right?
The best we could do would be to indicate somewhere in Article 45 that we recognise it as a fundamental right that citizens should have access to an adequate means of livelihood through their occupation, or, if that fails, through community action. An equal right to work might mean an equal right to a particular post, which would be absurd. I shall try to get in what I have said somewhere.
The President has talked profoundly and sincerely about the value of these fundamental human rights. When it comes to translating sentiment into action, he is merely prepared to embody this phrase in Article 45, which opens with the delightfully innocuous declaration that the application of the principle contained in it shall not be cognisable under any of the provisions of the Constitution. The President could put almost anything into Article 45 because there is no means of enforcing the right. The President agrees with Deputy Rowlette that this provision should be made, and then proceeds — I do not think he intends to do so — to sell him a pup in the kennel labelled "Article 45." The President could not only give Deputy Rowlette the right he asked for in this Article, but he could give him a sack of rights. What is wanted is a right enforceable by law. Why not put the right into an Article other than 45?
Because he is trying to choke the cat with something other than a pound of butter.
I move to report progress.
