The same scarcity of information which exists regarding our application on the economic front exists in relation to the constitutional implications which will follow entry. At some stage there was a change in the official attitude as to exactly how the people would be consulted about our application for entry. Some years ago the late Seán Lemass said that if it was found that any of the Treaty obligations were in conflict with the Constitution as it stands consideration would have to be given to effecting any necessary amendment of the Constitution.
Up until the White Paper was published in 1970 official thinking lay in the direction of indicating to the people the constitutional changes which would follow if we sought entry to the EEC but there appears to have been a change in attitude and the Taoiseach at column 1073 of the Official Report, Volume 257, said:
Some Deputies may ask why the Government did not propose an amendment which would deal, by reference to special articles, with the incompatibilities which exist between the provisions of the Constitution and obligations of membership of the Communities. The answer is that the Government consider that it would not be practicable to do so 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.
An extraordinary economy of information is being used by the constitutional lawyers at the Government's service. Various reasons have been advanced for the lack of information on the economic effects of entry. No reason has been put forward to change the Labour Party's opposition to entry— an opposition which is centred on our concern for employment for Irish workers. No information has been put forward with regard to employment, and a similar disease has struck in the area of the constitutional implications; no information is forthcoming and the Taoiseach has said it is a matter for the courts.
I do not think it is beyond the wit of members of the Oireachtas to say which major areas of the Constitution will be involved if we enter the EEC. The Taoiseach cannot shrug off his responsibility as Leader of this House by saying this is a matter in the final analysis for the courts. In a theoretical sense this may be true but the Taoiseach knows there is a duty on politicians to spell out exactly what changes in our Constitution would follow entry.
No court in the land or indeed in the international community would suggest that this House does not have that obligation and no court would question the right of this House to point out these changes.
The Taoiseach seeks to evade what is the clear-cut responsibility of a premier in going to the electorate. One may speculate on the reasons for the official change of heart on the way to present our proposed entry to the people. Some commentators suggest that the Government's reluctance to refer to the specific clauses affected may have a great deal to do with the actual clauses in question and the things they say.
For example, Article 5, which states: "Ireland is a sovereign, independent demoncratic state," was one of the articles which it was stated in the White Paper would need to be amended. These are awkward and probably emotional words against the background of abject, economic dependence on the British market which has been the policy pursued by this and other Governments over the years despite a barrage of public rhetoric to the contrary. It has been suggested by some commentators that the Government would find it embarrassing to have to go to the electorate and explain that these were rather embarrassing words which do not sufficiently describe the contemporary position of the Irish State. That in fact may be true although I do not know why the Government could not go to the electorate and state the exact constitutional amendments that would be necessary.
The Government had two choices: they could have done the honest thing and gone before the electorate and listed the constitutional changes that would be necessary or they could have done something which we suggested a long time ago and utilised Article 27 whereby a Bill can be referred to the people—provided a sufficient number in this House agreed—which would merely state our desire to enter the EEC. Let it be clear, the Labour Party are all for consulting the people but we believe the vehicle of consultation with the people should be honest in intent, clear and unambiguous. Our criticism of the Third Amendment is that it is deliberately vague and no one can state what in fact the true effects of the amendment being carried would have on the Constitution.
The Government have chosen a means of consulting the people which seeks to cloak the full constitutional implications of entry and we oppose this amendment on that ground. The Labour Party's approach throughout has been for maximum information. We would be departing from that role if we voted for this amendment which appears to go in the direction of total obscurity of purpose. We have looked for maximum information on jobs, on how the economic future of our people will be influenced or affected by entry and we now want maximum information in the area of the constitutional changes that will be necessary.
I would not like it to be thought by anybody that this is a last ditch fight by the Labour Party in defence of the 1937 Constitution, it is no such thing. Instead of marking the high watermark of Republicanism, which many people at the time thought it was and which for years afterwards we were led to believe by ladies and gentlemen opposite that it was, I consider the 1937 Constitution marks a step into medievalism and I certainly do not consider it to be a forward move. By comparison, and many Deputies opposite even realise this, the Saorstát Éireann Constitution was superior to the 1937 document, certainly in terms of a 32-county State. We now know the 1937 Constitution to be a positive bar to any further dialogue with our countrymen in the north-eastern part of the country. Let nobody think the Labour Party is addicted to the erroneous clauses and the sectarian provisions contained in the 1937 Constitution. The 1937 Constitution adopts some features of the Saorstát Constitution and it incorporates certain fundamental rights which we believe it would be wrong to depart from unwittingly or unknowingly and this would be the possible result of accepting the Bill in its present form. There are certain fundamental guarantees in the Constitution that must not be eroded. They have proved useful. This is not due to any particular virtue of the author of the 1937 Constitution but rather to immemorial common law guarantees dressed up in the 1937 Constitution and on which this Constitution is the sole authority since its enactment and the sole bedrock of these fundamental personal freedoms. Admittedly, the social directives of that Constitution and the policy directives which are not recognisable by the courts are rather dated but they are capable of further development. Other parts of the Constitution have been the subject, in recent years especially, of Supreme Court interpretation which has opened up the possibility of the extension of personal freedom. For these reasons we think it would be wrong and foolish to agree to any large scale erosion of unspecified areas of the Constitution. We saw the method by which the Supreme Court extended rights under Article 43.1 where the State guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. This was used notably in the Ryan case in recent years, in the Philip Clarke case and in other cases to extend greatly the area of individual fundamental rights.
The Bill does not list the Articles of the Constitution which are affected and we may speculate on the reasons for that. Peculiarly, this reluctance to list constitutional amendments and come clean on how the Constitution should be changed, this notable reluctance by the Government coincides with a period when any man with ten followers is talking about changing the Constitution and when not a weekend goes by that the Taoiseach does not talk about his intention to change the Constitution. He does not state the year or the century or give details about the era in which he will go through this Justinian phase of changing the Constitution, but he has made many speeches on the matter in recent weeks. He says he is going to scrap the entire Constitution if he can get a united Ireland; even on the way to a united Ireland he will scrap it in unspecified ways. Yet, he cannot state here clearly where he wishes to change it or list the clauses which require change now.
There is no doubt that the Third Amendment Bill will alter various sections of the Constitution. As the Taoiseach said, this will be a matter for the courts, and in another part of his speech he said that there is a danger that we might not be able to get all the implications clearly stated in a Bill; technically, we might leave out something. So, there is no doubt that there will be large-scale changes. It appears there is no nervousness about large-scale changes in the Constitution as long as you do not name the exact areas of change. We may speculate on the reasons for the Government's reticence with the electorate and their reluctance to state the changes required.
The Taoiseach says the draft is very narrow, that it could not be narrower, but the Taoiseach has a peculiar view of reality, to put it bluntly. To some extent, he has a schizophrenic approach to truth, a certain gift for interpretation which has served him well in recent years. The draft to us in our naivete appears pretty wide and the second portion to be extremely wide. It validates all measures adopted by the State consequent on membership. For example, it could make lawful otherwise unconstitutional measures which the State was not obliged to adopt but which it could hold where necessary consequent on our membership; for "the State" read "the Oireachtas".
In regard to that phrase, "consequent on membership", we recall a period in the courts between 1924 and 1940, and even after that-one recalls Article 44.1 to the effect that no citizen shall be deprived of his personal liberty save in accordance with law—when a long series of decisions equated the word "law" with the actual law of the land. As long as it was law duly promulgated here and clearly put forth from this Assembly the courts said: "That is good enough for us." The courts said that the Oireachtas was competent to judge. This interpretation was used mainly to bolster up the Offences Against the State Act and various attempts were made to show that the law had a wider significance than simply the law of the land, but those attempts failed. Likewise, in various cases before the courts in the matter of private property, in the Donnelly case and others of the same sort, there were numerous examples where the courts said in fact that the Oireachtas was competent to judge these social questions.
There has been a welcome change. In recent years we have seen the Supreme Court and the High Court taking on a very creative function that all must welcome and it is true that the whole method of judicial review of legislation has developed well by comparison with the past but there is no guarantee that in the future we may not find the courts once more equating "law" with the law of the land or, in fact, interpreting it in the same spirit as the interpretation of Article 28.3º, namely, "time of war or armed rebellion". Again on the matter of "measures adopted by the State consequent on membership", the court could say that these were the decisions that were consequent on membership belonging peculiarly and alone to the Oireachtas. It may seem farfetched but these are possibilities that could come into existence if we pass unspecified amendments to our Constitution.
It would be more honest for the Government—and I do not think any court could question their right to do so—to specify the actual amendments necessary in the Constitution or, alternatively, to adopt the course provided for in Article 27 of putting the matter to the people in a straight "yes" or "no" fashion. We can speculate on the reasons why the Government did not adopt either of these courses and should choose to attempt to cloak the real effect of this Third Amendment to the Constitution. Whether their reticence and reluctance to spell out the implications have anything to do with an early general election, I do not know. It may be an embarrassing thing to say at the beginning of an election campaign that the State is no longer sovereign and independent. However, even though the Government may be contemplating a Twenty-six County general election, it must be remembered that what we are discussing is not a petty political matter to be confused with an election. The issue is too important to be tied to the fortunes of one political party. The Taoiseach should state the order of priorities: which is the more important, to win an election or bring this country into the EEC.
I am not in the least convinced when the Taoiseach says that the only reasons why the constitutional implications of EEC membership were not spelled out was that this was, in the last analysis, a matter for the courts. Is it not a question, with a general election coming up, of it not being good politics to spell out these constitutional changes? The amendment says:
No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State consequent on membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State.
The only limitations in that situation would be that the Community institutions can only exercise their powers in ways set out in the three Treaties listed. It is true that these Treaties are concerned with economic matters but we cannot say that fundamental freedoms will not be directly affected. We could say that there will not be any infringement of fundamental personal rights, but these powers in the economic sphere are very wide and open-ended. Reference has been made to Article 235 of the EEC Treaty under which very wide power is provided; and the objectives of the Community, as expressed in the Preamble to the Treaty of Rome, are also pretty wide. Article 235, in fact, opens up the possibility of passing laws in this country which up to now would be regarded as unconstitutional.
The Taoiseach says that the amendment is narrow in that, when we see the growth of political and monetary union among these States, we shall need another referendum. Therefore: "See how honest we have been. See how accurate and fair we have been," is the attitude of the Taoiseach. I do not know what marks we can give for that. One of the errors of negotiating posture from the very beginning has been a totally uncritical acceptance of the political implications of joining the Community. Every other weekend Ministers stated their promise to be of good behaviour in any political development of the Community. That might be harmless enough if they confined their remarks to the local branches of their party and if they had kept their mouths shut in Europe or in Brussels. However, at a time when the now members of the Community were anxiously querying the future political developments of the Community, our Ministers were blabbing forth their total commitment to and optimism in respect of an unspecified political charter for Europe.
Of course we were never told what the political implications were from the outset, but that does not come within the ambit of our discussion now. It is a bit late in the day for the Taoiseach to say we shall require a referendum to decide on our adherence to a Community that may sprout a political framework when our Ministers have been saying in Europe and at home for many years now that we are willing and able to accept all the implications of entry, including the political ones. At one stage, if I recall rightly, a Minister, now no longer with us, announced his willingness to accept the military implication as well.
People may say: "This is not a sovereign State so let us not worry about dumping Article 5 which states that Ireland is a sovereign, independent, democratic State." I do not have much sympathy with some elements of opposition which appear to subsist in a very rarefied atmosphere. The Labour Party opposition to entry has been centred exclusively on the threat to Irish jobs and we admit to all the limitations of that view. We apologise to no one for that particular limitation of our view. After all, who would represent the voice of that large section of the Irish people who are concerned about their jobs in the country if there was not a party in this House to voice that concern?
One of our major criticisms has been the lack of information. In the absence of adequate information on how Irish jobs are to be safeguarded what other attitude could the Labour Party have adopted but the one we have? People may say that this Article which states that Ireland is a sovereign, independent, democratic State is just a theoretical abstraction. It is true that the horror of our political life has been that the Government have practised a style of politics for years which appears to suggest that, politically, we lead an independent course yet like an old mole burrowing underneath this empty shell of sovereignty the actual reality is that the economy each year was bound that much more firmly to the British economy.
If one looks at any Irish Press editorial at the moment one would think we were in a state of war with Britain while at the same time pursuing in unison with them a step by step approach of entry into the EEC. I just give this as an illustration of the kind of double-think politics practised by the present Government for many years. It is true to say that we did not have a full going sovereignty when the economic dependence of this country on the British market was copper fastened year by year. The Anglo-Irish Free Trade Area Agreement was the great riveting job of that dependence. We did not have a true sovereignty against the background of that situation it is true but it is time that the population of the Twenty-six Counties grew up to the implications of the policies pursued by this Government.
Presumably, had there been any independence in our application to join the EEC, we would have accepted the Gaullist offer in the early 1960s for a form of association for at least an independent initiative, but because our application from the outset in the eyes of the Government was simply a gloss of the British initiative we did not accept that Gaullist offer made clearly in the 1960s. Indeed, if the Westminster Parliament in the morning changed their minds in this matter our application would go like the application in the early 1960s went, it would go the way of all flesh. We would call home our people in Brussels and we would have another long sojourn in close unity with the British market.
I accept that British entry means there should be a relationship with the EEC on the part of this country. The debate should be about the kind of relationship appropriate to our position and that relationship can go all the way up from entry at one end to association and trade agreement at the other. We have seen already what the Swedes and other countries have been able to do in attempting to get an evolutionary character to the agreement they might have with the EEC. Our fundamental criticism has been non-negotiations from the start and seemingly no safeguard for our employment position in membership.
We know there is no regional policy developed within the Community to meet our needs. That may be understandable enough. We know we have no regional policy within the boundaries of the State here to meet our employment needs. In that situation who could look for support for an application to join a free trade entry arrangement where there appears to be no concern either at State level here to frame a regional policy to meet our needs here nor any apparent pressure on the Community in our negotiations for a regional policy geared to meet our requirements?
The onus of proof lies on those who are attempting to bring us into membership to prove exactly how we may save the jobs we have. It is not the Labour Party who are in the dock but those who are seeking to bring us into this larger Community where all, they say, will be milk and honey. On the way to bringing us into this promised land they have also the onus of clearly spelling out the implications of their actions. In this Third Amendment Bill they do not spell out the implications of their actions.
The Taoiseach may be preparing for a general election in which he does not wish to have these constitutional implications spelled out. He obviously thinks it may be embarrassing to say that the State would no longer be sovereign and independent. He has to put up with this embarrassment if there is a general election in the offing. He will have to make up his mind what he wants to do, bring this country into the EEC or have a general election, but his application may become a casualty of his election ambitions if he tries to combine both. I hope that he can see his way to ensuring that this House can have a united voice in ensuring that the people have, in coming to their decision on the EEC, a document before them which spells out the constitutional implications.
We are not against the idea of a referendum. We want to have the people involved in it as soon as possible. The Taoiseach does not convince me when he says that the courts will finally decide on the implications of our entry, that he is not in a position to list out the actual changes which will follow on our entry. He leaves unstated the actual portions of our Constitution which may be affected. The White Paper early in 1970 mentioned among the provisions of the Constitution which have to be considered in this regard, Article 5, Article 6.2º which provides that the legislative, executive and judicial powers of the Government are exercisable only by or on the authority of the organs of State established by the Constitution and Article 15.2º which vests in the Oireachtas the sole and exclusive power of making laws for the State and provides that no other legislative authority has power to make laws for the State.
In 1970 the White Paper referred to these three obvious Articles but now we appear to have retreated from that position, shrouding our whole purpose in high mystery, putting forward this blanket phrase and hoping that covers our political flanks. I do not think a citizen of a State with a fixed Constitution which incorporates in it certain fundamental guarantees could be happy with an amendment which appears to shroud in mystery the effects of such an amendment on his Constitution. If the Government are anxious to see that the people declare unambiguously for or against entry, it must be clear to them that the present means they have chosen in the Third Amendment will not secure that willingness on the part of the electorate to look at the issue squarely and honestly and to give their verdict accordingly.
Instead, the air will be black with accusations of sell-out, of dishonesty and duplicity—and political life in this country has enough of such accusations at the moment. I do not see why we should deliberately prepare for a referendum campaign which would be marked by this kind of approach on the part of those participating in it and on the part of the electorate.
As we know to our cost, the Constitution is defective in a number of vital respects. It is a positive obstacle to a further advance on this island towards a meeting of minds and hearts, which is supposed to be the stated objective of all parties in this House. The Constitution has certain positive features; it has taken over certain common law traditions and incorporated them in a fixed Constitution and we would be wrong to depart from these guarantees unknowingly. I made the point that, by contrast, the Saorstát Constitution was framed more in the spirit of a Thirty-two County State than the Constitution of 1937. The latter is a monument to the Twenty-six County State, with its prejudices and pomp of that period. A weakness of the Saorstát Constitution is that it became a creature of Parliament; it did not have the strength of the 1937 Constitution, of the people themselves being the sole arbiters of changes in that Constitution, but there are virtues in the Saorstát Constitution which are not shared by the 1937 Constitution.
Article 46 states:
Any provision of this Constitution may be amended whether by way of variation, addition, or repeal, in the manner provided by this Article.
The whole spirit of Article 46 is that any changes, amendments or repeals should be spelled out. It is clear that the Third Amendment ignores the spirit of Article 46; it does not spell out the changes that are considered to follow on the passage of the Third Amendment.
I had hoped that the Taoiseach could clarify in his own mind what he is seeking to do at the present time. If he is seeking to get a "Yes" or "No" answer on the question of our accession to the EEC, he could use, as we suggested, Article 27, or at least examine our suggestion to see if it is practicable. Certainly he could consult with his advisers for a better means of reaching the electorate than the one he has chosen. Since all parties are agreed on the idea of a referendum, that the people should be consulted on this supreme issue, the Taoiseach could have consulted in a frank way with the other parties to see if we could have agreed on the means of going to the people in the matter of the referendum.
In recent weeks there has been a spate of suggestions of inter-party discussions—I have suggested one or two initiatives in that regard—but here was an initiative the Taoiseach could have taken to consult with Fine Gael and Labour and see if an agreed document could not have been put before the electorate for their verdict. Instead, we have been presented with a dishonestly contrived Third Amendment to the Constitution. It does not say what changes are intended; the Taoiseach evades his responsibility by suggesting that this is a matter for the courts. I do not think he is discharging adequately his duty as Taoiseach by giving this kind of excuse. It is his job, if changes in the Constitution follow, to list those changes. No court could criticise him for suggesting particular amendments that may be necessary. During the last ten years when we attempted to join the EEC, the debate from the Government side has been conducted on the basis of giving as little information as possible. This has happened in the economic sphere where sufficient safeguards have not been given and the trade unions have complained on numerous occasions about the lack of information on vital questions affecting their membership. It appears the same attitude continues when we consider the political and constitutional implications of entry.
In the political and economic spheres at least, the Taoiseach should come before the House with a document which either comes out clearly and unambiguously on the constitutional implications of entry or, alternatively, looks at Article 27 and comes to a decision about whether we can have a Bill which could go to the people on the basis of whether we wish to enter the EEC. The Labour Party do not oppose the idea of a referendum but we consider that the conditions of true consultation with the people in a referendum on a supremely important matter are not best fulfilled in the form suggested in the Third Amendment. This is our only reason for opposing it at this stage. Our general approach on the economic implications has been spelled out elsewhere.
