Tairgim leasú a 1:
Go scríosfar na focail go léir i ndiaidh "Go" agus go gcuirfear ina n-ionad:—
"ndiúltaíonn Dáil Éireann an Dara Léamh a thabhairt don Bhille ar an bhforas go bhféachann sé le leasú a dhéanamh ar an mBunreacht gan trácht ar na hAirteagail lena mbaineann agus ar shlí atá contrártha dó sin atá ceaptha in Airteagal 46.1 den Bhunreacht."
I move amendment No. 1:
To delete all words after "That" and substitute:—
"Dáil Éireann declines to give a Second Reading to the Bill on the grounds that it seeks to amend the Constitution without enumerating the Articles so affected and in a manner contrary to that intended in Article 46.1 of the Constitution."
Perhaps the one matter on which we could all agree here is the importance of the Bill now before the House. Because of the statement of April, 1970, contained in the Government's paper on membership of the European Communities and since we know that an inter-departmental committee under the chairmanship of the Attorney General were already sitting then and had at that time considered what would be necessary in the way of Constitutional amendments, we must assume, therefore, that the form of words presented to us in this Bill is not the result of hasty decision and that serious thought and care have been given to the actual phrasing of the Bill.
I might say at this stage that the Bill is even more horrifying in view of the certain knowledge that it was not something that was cooked up late at night or in a rush. From these benches, through our Leader, Deputy Corish, we offered a mechanism to the Taoiseach and to the Government whereby, recognising that this would be a complex and possibly difficult issue, a simple question could be asked of the people in a simple, direct and straightforward way. This was the mechanism that is contained in Article 27 of the Constitution whereby not a Constitutional amendment but simply a question could be put to the people in the form of a referendum. Deputy Corish gave an undertaking then that if a clear and unequivocal answer was contained in that referendum we, for our part, would facilitate, in so far as lay in our power, the passage of Constitutional amendments and the legislation that would be conditional on that decision. We argued then that the Constitutional amendments were necessarily complex and that they ought not be mixed up with the basic decision as to whether it was the national will to join the three Communities. However, that course, which seemed to us to be a reasonable, fair, just and possible one, was not even considered and, instead, we have been presented with this Bill.
Of course there is some necessary preamble to the Bill but we have the extraordinary situation whereby something that is absolutely fundamental not only to our Constitution but to the whole direction of our nation is being decided by the essential kernel of the Bill which consists of 11 lines and two sentences. The first of these sentences is entirely unexceptional and one that no one could disagree with. We are being asked to scrap our Constitution. We are changing the whole direction of national evolution in one sentence the implications of which are unclear. I find that profoundly shocking and I am bound to say that also I find it dishonest for the reason that, indeed, a nation is entitled to change direction and is entitled to abandon a Constitution but it is not entitled to do so by stealth. It is obligatory that the real issues be put forward for discussion.
Let us look at this Bill that we are now seeking to amend. The essential part of it, Part II, consists of 11 lines and of those, the first seven say that the State may become a member of the three Communities. We are anxious that the people should be consulted on this. It should be in the form of a matter for decision. In fact, that is the kernel of it and that question could have been asked alone under the mechanism of Article 27 of the Constitution. Then, from line seven to line 11, in one sentence, we have this incredible and extraordinarily comprehensive sweeping aside of very large parts of our Constitution on the one hand while on the other hand there is an extraordinary and comprehensive acceptance of laws, of rules and of actions taken by Communities which were not responsible to any democratic organisation. We are rubber-stamping undemocratic and bureaucratic decisions. I find the fact that this major change, the most fundamental change in national policy and direction since the foundation of the State, should be wrapped up in four vague lines profoundly scandalous and shocking, but it is entirely in line with the determination to settle things by preventing the real issues coming before the people. This is a bundling up of a whole number of Articles into four lines which look completely innocuous, which in my view were designed to be completely innocuous. The tactics of the Government on this have been quite simple—to have no discussion for as long as possible and once the British decision was taken on 28th October to pretend then that there is no alternative. First no discussion, which would have teased out alternatives, and then the pretence that we have no choice.
Let us look at what this one scandalous sentence means. It is divided into two parts. It is so concise that it requires many words to tease out these seemingly brief and innocuous phrases. The first part says:
No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State consequent on membership of the Communities....
Let us look at it in different ways. What does "consequent on" mean? What does it mean in law? What does it mean in ordinary common sense? To my mind it means that any act done or any measure adopted or any law enacted which can be argued to be taken in good faith, consequent on membership of the Communities, can stand up in the face of any protection which is enshrined in our Constitution and that no appeal to the Supreme Court or to Constitutional protection will be good against any law or act or measure if it is simply shown that that law or act or measure was consequent upon our joining the Communities or consequent upon our membership of the Communities.
We could spend hours looking at what has happened since the Treaty of Rome was signed in 1957 and since it started to be implemented at the beginning of 1958. All sorts of actions have been taken in the Community in regard, for example, to harmonisation of trade, harmonisation of investment, in regard to free movement of labour, free movement of capital, free movement of goods, in regard to quality controls, transport, social services, social welfare and all sorts of things. Decisions have been taken, events have evolved and positions have been taken up. It is a basic principle of the Treaty of Rome that we must have harmonisation between the constituent members. Any action relevant to all of the evolutions in decision-making and in the physical development of the Community for 14 years, that can be related in good faith to this 14 years of evolution, will be legally valid and recourse to the defence of the Constitution will be swept away.
We have two powers, which are quite different, enshrined in this, to me, offending and offensive sentence. First, if we claim that actions are consequent on membership we can carry them out even if they are in violation of the Constitution as it currently exists and is currently interpreted. Then in another seemingly innocuous 2¼ lines we find that anything that the Community have done in these 14 years by way of law or act or measure shall have the force of law in the State notwithstanding the fact that it is in violation of the Constitution. First, we give ourselves permission to carry out a very wide range of actions which would at present be unconstitutional and, secondly, we give ourselves the right to implement a very wide range of actions taken over 14 years, most of them without any recourse to democratic validation. We give ourselves the right to give them the force of law in this State even if they are contrary to the Constitution as it currently exists.
To put this into one sentence and to present it in the innocuous way that the Taoiseach has now done seems to me profoundly insulting and to indicate a profound wish to make real problems go away by pretending they are not there.
The Taoiseach's speech is rather brief and I do not think it takes up any of the real issues. The Taoiseach says in the opening paragraph:
I do not think there will be any disagreement in this House or in the country in so far as putting the issue to the people is concerned.
There will be no disagreement that the issue ought to be put to the people but there will be and is now profound disagreement as to whether or not this is the appropriate mechanism. This is a nice example of the use of words to conceal thoughts, of the bundling up of incompatible things together. Of course the question should be put to the people but the abandoning of our Constitution and the changing of our national direction should not be smuggled into four lines. This is not something that anybody outside the ranks of the loyal rubber stamp Fianna Fáil Party will agree to.
One has to read the Taoiseach's words very carefully always. He has at least one talent that I am prepared to admit is a great talent. That is a talent for seeming to say one thing when he means another thing. At the time you think he means such-and-such, and so does everybody else, but when you read the small print afterwards, possessing perhaps the knowledge that he possessed at the time he made the statement which his audience did not possess, you find he did not mean that at all, that he meant something else. Of this one peculiar talent the Taoiseach is a great practitioner. This makes us extremely cautious about everything he says. He also said:
Having given the fullest consideration to the matter, the Government have decided that the form of Constitutional amendment as set out in the Schedule to the Bill would be the most desirable and most effective form of amendment.
Certainly the most effective for scrambling something through without anybody knowing that it is happening, certainly the most desirable for abandoning the Constitution while pretending to uphold it.
"In the first place, it is sufficiently comprehensive." I like the use of the word "sufficiently" there because it is so vastly comprehensive, as I will argue presently when I look at the text of the Constitution, that it means, in fact, burying the Constitution in all its significant aspects, and that is sufficiently comprehensive for most people, but the term "sufficiently comprehensive" there, of course, is another piece of the bland, innocuous use of the English language that conceals a very savage reality.
"Certainly, the proposed amendment is clearly and specifically limited." That seems to me not using words to conceal thought but using words to convey something which is the exact opposite of the intention because I will argue presently, and not only I, but also people with legal qualifications, that it is neither clearly nor specifically limited, that, in fact, the exact opposite is true, that it is not clear and not specific and not clearly limited and not specifically limited but deliberately extremely wide and extremely vague.
At least, on page 4, in the third paragraph, we get some sort of indication of the extent. The Taoiseach says:
It would not be practicable to have reference to specific Articles because the extent to which the Constitution would need to be amended is in the final analysis a matter for decision by the appropriate courts.
One of the great objections to this Bill is that, if it is passed, then a whole series of matters will not, in fact, be capable of being referred to our courts at all. It may be that when the Taoiseach says "the appropriate courts" he means the European Court of Justice but what this Bill does, as I will indicate presently, is to take extremely large areas of legal decision out of the power of the Supreme Court and though the Supreme Court has had many defects I think it has by and large functioned as an upholder of people's liberties. Its power would be vastly undermined by this Bill.
Finally, we have the argument about a political community. That is in the last paragraph. The suggestion here is that we would have a choice in regard to this political community if we adhere to the existing three Communities, the Euratom and the Coal and Steel and the Economic Communities but if, in fact, we participate in them in an open-ended way, and if we merge our economies with no possibility of getting out, the reality of choice in regard to adhering to a political community will not exist in a few years, as the Taoiseach well knows, and, therefore, on the day when a political community comes, we will not have discussed the fundamental national implications now because the thing has been treated in this way and when it comes to a political community, if it does, we will have no choice because we will already be participating in the other three Communities and what will be the choice is whether we go on participating in them without any political influence or whether we go along and have political influence but by separating the political from the economic at this moment the Taoiseach is trying to bundle us along, again without discussion, to a moment where the possibility of alternative choices will have ceased to exist.
I do not propose to treat further with what the Taoiseach has said because, in fact, in a way that we have come to expect, he has said very little, indeed, of either his real intention or the fundamental reasons why he is doing what he is doing.
Let us think for a moment about this Constitution that we are asked to abandon. The Constitution has been criticised by all parties. It has some very serious defects. It is in some ways a barrier to national unity. Of course, it needs to be amended and, indeed, there is a good deal of common opinion among all three parties and other interests in the State about the ways in which it needs to be amended. This is all true. But, when that is said, I think one can read it in some sections with a good deal of pride. Are we not all profoundly glad, for example, that it is a Republican Constitution and that we are not brainwashed and degraded by the remnants of monarchical traditions such as other countries possess? Is this not an admirable thing? Are not we pleased that in many ways it is a democratic Constitution? Are not we pleased that it gives certain specific guarantees to women? I think we can be pleased about all these things. Its defects, if one looks at them, are fairly minor and could readily be removed had we the political will to do so. I mean the will as distinct from the words expressing a will to do so. We have the words expressing that will but we do not have the action. By and large, considering its time, the Constitution was an admirable document in its day and, looking at some of the Constitutions that exist around the world, in fact, it is a good Constitution. It has enshrined a good deal of liberties and, as interpreted by the Supreme Court from time to time, and, indeed, as defended by the people in referenda, it has continued to enshrine a good deal of liberty. In fact, its defects are as meaningful as its strengths because it summed up a good deal of the thinking and the atmosphere, even to its bits of vocationalism and the rest of it, of the thirties, when it was produced. Of course, the world has gone on from there. But the essential thing to do with our Constitution is to modernise it and to remove the offending bits and not to scrap it.
What are the general objections? There are general and specific objections that have moved us to put down the amendment that I am now introducing. There are two general objections. The first is that a formulation as wide as "consequent upon" is, in fact, bad law. I am not a lawyer. There was a time when lawyers were much more available to other parties than to our party but with the evolution of time we have as good legal advice as any other party at present, I am pleased to say, and it is seriously argued by people of profound expertise that when something is as vague, as indefinite, as imprecise in its application and interpretation as this Bill is, in fact, it is an invitation to litigation and it is, as the lawyers have put it to me, simply bad law.
I understand, for example, that in the United States the Supreme Court has struck down legislation on the basis of what they term "legal vagueness". I understand also that at a certain level lawyers in all countries try to converge in their methods, in their standards and in their attitudes and that what is a good argument in an evolved and in some ways democratic nation like the United States, while not automatically applicable here, would at least have some force with lawyers in this country. It is proper that that should be so.
The suggestion is that because you cannot with any precision look to just what bits of the basic Constitution of the State would be invalidated, that is so vague as to constitute bad law. The second general objection is that, in fact, in the Constitution itself a mechanism is envisaged for the changing of the Constitution. I refer to that section of the Constitution headed "Amendment of the Constitution". It is Article 46. The first clause states:
Any provision of this Constitution may be amended, whether by way of variation, addition, or repeal, in the manner provided by this Article.
I take these words to have been carefully thought out and to mean what they say. Again, I am not a lawyer, but when one listens to and sees constitutional lawyers analysing sentences, the analysis turns on meaning and on the intention of the people who put the words on paper and, having put them on paper, looked at them, scratched out, added bits and tried to express exactly what they meant. Article 46 says "Any provision of this Constitution"; it does not say a whole lot of specified blanket provisions of the Constitution may be so changed. It says that any one may be amended and the mechanism of amendment is the variation of the Article, or an addition to the Article, or a repeal of the Article. That is what it says. I take Clause 1 of Article 46 to mean clearly and absolutely that you may not change the Constitution in what I might describe as a buckshot way; you fire off some destructive legislation in the general direction of the Constitution and you destroy whatever particular Articles of it that you happen to hit.
That is what this Bill says. It does not say what Articles it happens to hit. It does not say what Articles, or bits of Articles, it happens to knock out. It just says that anything consequent on membership of these three Communities will be followed notwithstanding what is in the Constitution. In other words, anything the Communities have done will have the force of law here notwithstanding the Constitution. Now, I am urging this not as a lawyer, but I have talked to lawyers about it, and this does seem to me absolutely at variance with the intention of Clause 1 of Article 46. It is not just bad law on the basis of legal vagueness, on the basis of the imprecision, on the basis of lack of clarity; it is bad law on the basis that it violates, in my view, Clause 1 of Article 46. It is, in fact, much too general. I think that this to some extent may have been in the Taoiseach's mind when he uttered some of the words he did because at page 3 of the supplied script when he says the proposed amendment is clearly and specifically limited, he is saying the exact opposite of what is true. He is trying to isolate precisely what the core of the technical objection to the Bill is and to make that objection to go away by denying it is there. There is no stretch of thought, or manipulation of words and no reversal of the meaning of words, by which the proposed amendment can be seen to be clearly and specifically limited. The opposite is the case. It would be an extraordinarily messy situation if we were to go through this whole rigmarole of debating this Bill here and then finding. that someone promptly took it to the Supreme Court. There is, as the Taoiseach must know, being himself a member of the legal profession, good legal opinion in good professional standing which considers this so vague, so imprecise and such bad law, and such a formulating of legislation with a political motive and not with a clearcut legal one, that it is not possible to guarantee the outcome of an appeal to the Supreme Court. The Taoiseach can get himself certainly a legal opinion which will tell him that such an appeal to the Supreme Court will be well-merited and a well worth while undertaking.
I was rather hoping, clearly without a valid foundation, that, even at the last minute, the Government might think: "Let us have some other mechanism by which we can get a nice clearcut question asked of the people." Then the Government could remind us of the promise we made, when they got a clearcut answer under the mechanism we suggested, Article 27, that this was clearly the will of the people and the consequential changes in the Constitution would be facilitated. I thought there would be an abandonment of large lumps of this section because of the objections, not of people like myself, who have fundamental objections to our full membership of the Community certainly on the present terms, but because of the objections of legal people who have indicated that this is a careless, foolish, confused, politically motivated and generally extremely unsatisfactory piece of legislation, if it ever gets through this House. I would have thought that in the light of these arguments we might see a last-minute change of mind because the Taoiseach must know, with his own feed back in the legal profession, that these are cogent arguments widely held by lawyers whose professional expertise is not in doubt.
We have now envisaged a mechanism, if one goes on about the general objections to it, that could alter the fundamental rights of citizens, that could alter the position of Parliament, that could alter the rights, the functions and even the mechanism of appointing judges, that could tamper with habeas corpus, that could alter the system of election, that could alter control of ownership of natural resources, and all sorts of things like that, without recourse to this Oireachtas. We propose a mechanism that could alter so many things so fundamentally without recourse to this Oireachtas or to any direct democratic institution that one might well postulate all sorts of Acts being introduced here and, if they were consequent upon EEC membership, and, notwithstanding anything in the Constitution, they would have to have the force of law if it were argued they were done bona fide consequent on EEC membership.
This, of course, may be the way the Taoiseach is thinking, or his advisers, to get around a whole number of Articles in the Constitution they do not particularly like but in regard to which they do not want to face the battle in doing away with them. They do not want to face the crunch so they consign them to oblivion in this block sort of way without ever having to argue anything out or introduce legislation to repeal them.
Before going on to look at the particular objections in the Articles the Government themselves spelled out in the White Paper in April, 1970, I want to say a word about the concept of sovereignty and about the concept of a nation. This is not simply for the purpose of discussing these concepts but because they are central in any discussion of the Constitution. They are essential because in Article 1 of the Constitution, the whole of the first section is called "The Nation". The third word in the Constitution is "nation". It says, "The Irish nation hereby affirms". The word "sovereign" occurs in the second line. The concept of sovereignty is fundamental to the whole of the thinking and the whole of the struggle that culminated in the promulgation of this Constitution in 1937.
It has been argued that sovereignty in any agreement is to some extent abated, abrogated or diminished and we are therefore doing nothing different here when, as the Taoiseach rightly said, we take the first step in adhering to the three Communities. When we seek to adhere to these Communities we are doing nothing essentially different from what we do if we have a trade agreement with somebody. It must be clear, and again one is using words not to confuse or obscure the truth but to try to clarify things, that when you have two events so vastly different in magnitude and kind, that you can only honestly talk about them as being different in kind. It could be argued that the thing which comes literally in a matchbox, called a matchbox and shaped like a motor car is the same sort of thing as the car parked out in the parking lot. It could be argued that the rockets which children light at Hallowe'en are the same sort of rockets that take people to the moon but the scale, the intent, the investment, the significance and the power of these two things which are described by the same word, is so different that in fact it is specious and dishonest to say they are the same thing.
Any relationship between nations as between persons involves some diminution of freedom and in that abstract, total sense it involves a diminution of sovereignty if we are referring to nations. To argue that a trade agreement or any sort of pact between sovereign nations, which is capable of being reversed, is really no different from the joining of the-Communities, which is open-ended, which once we have done it for a few years even if we wanted legally to reverse it, would not be economically reversible in real terms, is the same thing and that since sovereignty is diminished by having any sort of relations with any other sovereign nation we are used to the idea of diminishing sovereignty and we may therefore go into the EEC without any worries because it is the same sort of diminution of sovereignty, seems to me as bogus an argument as to equate children's rockets with moon rockets because they are so different in scale and significance.
We in Ireland are apt to make our politics into theology. We are inclined to elevate sovereignty to a principle which has some abstract value for us. I am not arguing for the defence of Irish sovereignty in abstract terms. The reason people want sovereignty and want to defend it is because it enables them to do things for themselves which they consider to be good for themselves. It is dressed up in extremely flowery and, often indeed, in our circumstances, in mystical language but at the core of this verbal wrapping there is the reality of the power to make decisions concerning oneself and that is the sovereignty one is concerned about.
The fact that the opening section of the Constitution is called "The Nation" indicates the significance of the idea of nation to Irish people. This again is something that has often been wrapped up in vague and mystical terms. People have fought and died for it without being too sure what it was. This again, for us, is a clearcut conception, it is a conception not abstract, not mystical, not having any validity for theoretical reasons, only having validity if it enables people to live together and evolve a community and a culture together and evolve all the things which are collectively known as a way of life together.
The reason it is important to define this is because hundreds of years ago people envisaged the existence of a nation as a goal long before there was one and they moved towards it with great persistence, great courage and great dedication. It can be argued that the full attainment of this, which is put in its significance in national life correctly by being put as the first section of the Constitution, has not been completed. We have, however, to say that it is important as a goal to the Irish people, that it is something we have moved a long way towards, that it is something we have not finally attained and it is something we care about profoundly. If those things are true, and I believe they are true and I believe on that we might have consensus here, then we have to talk about the idea of a nation in the context of this first effort to get us into these three Communities.
Let us look at which parts of the Constitution would have to go if we were to pass this Bill, let us try to tease out the thing which it is reckoned to be too complex to be done in public and too complex to be embodied in referenda and so complex that the Taoiseach suggests, "the extent to which the Constitution would need to be amended is, in the final analysis, a matter for decision by the appropriate courts". When working properly the courts are the guardians of many things, but that does not mean Parliament should give up the task of trying to tease these things out and look at them.
In April, 1970, the White Paper "Membership of the European Communities, Implications for Ireland" was published. April, 1970, seems like a different world now. The sky had not fallen at that time and the exigencies of the political situation were not such that the Government had to try and scramble something as complex and as delicate as this through this Parliament and past the gaze of the Irish people without really explaining to them what was involved. At that time, after the deliberations of the inter-departmental committee under the chairmanship of the Attorney General, we were told a certain amount, although in my view nothing like enough even then about the Constitutional implications. If we are asked now to sweep away the various sections, we might look at what from the Government's side we were told then. I am referring to page 2 of the 1970 White Paper and again this was considered sufficiently significant to be put as chapter 1 of that White Paper, which is entitled, "Constitutional and Legal Implications". I am quoting from page 2, 1.5, which states:
Among the provisions of the Constitution which have to be considered in this regard are:
(i) Article 5, which states that Ireland is a sovereign, independent, democratic State;
By the Government's own admission, Article 5 is at least in doubt in the context of its being retained in the Constitution if we adhere to the Communities. My reason for talking about sovereignty a minute ago was that I was coming on to refer to Article 5. This Article, which is a very central one and one which I must say I am very proud of, clearly could not be retained. I am proud that it says that Ireland is a sovereign, independent, democratic State, but it could not retain sovereignty in the way I have defined it. One might have an argument about the amount of sovereignty and it could be argued on the other side that we would participate in a larger sovereignty, but that participation would be proportional to the power of each of the participating nations in the ten. There are veto mechanisms and other mechanisms which are of doubtful duration; one might visualise a time in which this kind of unanimity protection will diminish and perhaps the great nations, the Germans, the French and the British will retain sovereignty.