An Bille um an Tríú Leasú ar an mBunreacht, 1971: An Dara Céim (Atógáil). Third Amendment of the Constitution Bill, 1971: Second Stage (Resumed).

Debate resumed on the following amendment:
Go scriosfar 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."
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."
—(Deputy Keating.)

Before Questions I was dealing with some of the criticisms of the Bill now before the House. I gave an indication of the kind of timetable envisaged in relation to subsequent Acts which will be necessary from the point of view of this House and our application for membership of the EEC. I indicated that the debate on the White Paper on the terms of our accession, in effect, will take place soon after the Christmas recess and that therefore these matters, mainly economic matters, are not relevant to this debate.

Some Deputies seemed, unfortunately, to invade that part of the territory and I do not propose to reply to any of the points made in that respect today. I did, however, mention the fact that sovereignty was one of the questions raised and that, from time to time, suggestions have been made that in some way we would be weakening our sovereignty were we to accede to the European Economic Community. It has been said several times in this House that sovereignty is something which we have to use for the benefit of our citizens. It is misleading to refer to the limitations on this country's freedom of action which will result from membership and to ignore the very real limitations on our freedom that now exist, especially at the present time when we are not a party to any international agreement or any international grouping such as the European Communities.

And when rubber bullets and CS gas can be fired with impunity across our frontiers.

This is becoming a real bandwagon. I am surprised at Deputy Cooney.

The Taoiseach should be ashamed of himself rather than being surprised at anybody else.

Why should I be ashamed of myself? Who is Deputy Keating to try to teach me morals or behaviour, or Deputy Cooney for that matter?

We are discussing the sovereignty of our State.

Any child on the street could teach the Taoiseach on that issue.

I moved the suspension of the Deputy and I am not ashamed to stand over that.

Out of order.

I moved it at the instance of the Leas-Cheann Comhairle who called for the presence of the Ceann Comhairle. Since Deputy Cooney introduced bullets across the Border——

On the question of sovereignty.

——I want to say this. I am not going to offend anybody. All I will say is that I stand four-square with the Irish aspiration for the abolition of that Border and nobody on that side of the House will diminish that aspiration in my mind.

The Taoiseach should ask his own party. Before he came up.

Before I came up— yes, I am younger than the Deputy.

Within the limits of Mr. Heath's dictates.

The purpose of my moving the motion to suspend that Deputy was to defend order in this House. It was for no other reason.

My interjection was relevant to the question of sovereignty.

(Interruptions.)

I will try so far as I can to ignore interjections in the future. Like any other small country or any other small nation, we have to use the sovereignty we have to the best possible advantage.

Thank God for Collins.

A Deputy

A Daniel come to judgment.

We must use our sovereignty as fully as possible in order to advance the rights we possess. Our real freedom is, unfortunately, circumscribed by our size and our resultant inability to influence decisions taken in other countries, decisions which unfortunately can affect us and in many cases do affect us, and our vital interests seriously. Membership of the Communities will afford us the opportunity to free ourselves from these present limitations on the exercise of our sovereignty. Sovereignty is not something to be worn like a badge. It is something to be used and, with membership of the Community, we will be using that sovereignty to the best advantage of our people.

The other small countries who are members of the Communities: Luxembourg, the Netherlands and Belgium are three examples of how they have been using their sovereignty to the advantage of their populations. Since the foundation of the Community, these three countries have participated fully with the large member States in decision making, decision making that is common to the wellbeing and the welfare of all the people within the Community. They have exercised an influence in that Community which was out of all proportion to their size and to their population. Likewise with us, if we accede to the Community, if the people say "Yes" to the referendum proposed in this Bill, we will have an influence far beyond our present size and population and gross national product.

We see membership of the Communities, therefore, as a way of safeguarding and increasing the participation of the Irish people in the determination of their own future. If Ireland were to stay out, our influence on the enlarged Community would be very, very limited indeed, whereas the effect of decisions of that Community would be very serious so far as our welfare is concerned. As the Community was strengthened and, more particularly, if the United Kingdom were a Member, influence adverse to our best interest would be constantly growing. To put ourselves in such a position would, in my opinion, be tantamount to the abdication of our sovereignty and the abandonment of control over our own national affairs.

In applying for membership, therefore, we are using our sovereignty in order to achieve greater sovereignty.

I think it was Deputy Garret FitzGerald who said that, apart altogether from the member States themselves, there is now and has been for some years a growing concentration in Europe and all over the world of those huge international companies who can affect the interests not only of small countries but of the bigger countries as well. It is important, therefore, that we use our sovereignty in this way to protect ourselves even from the decisions of these huge international corporations.

It was suggested by Labour Deputies in particular, I think, that this method of amending the Constitution was not necessary. They recalled a speech made by Deputy Corish some time in the middle of this year in which he suggested that we could have made use of Article 27 in order to effect what this Bill proposes to do. This procedure would involve two referenda, one to approve the Bill that would be put forward under Article 27, and the second to carry through the necessary consequential changes in the Constitution. There is also the added difficulty in adopting this course that the first Bill would be in itself unconstitutional. It would be unconstitutional until the Constitution itself was changed. Therefore, this procedure is not practicable.

Deputy Keating suggested that we were altering the fundamental rights of citizens and tampering with the mechanisms of appointing judges,habeas corpus and the system of elections. There is no foundation whatever for these suggestions. It was pointed out in the White Paper of April, 1970 that the European Communities are primarily concerned with economic and social matters; that most other aspects of our domestic law would be unaffected by our entry into the Communities; that furthermore the proposed amendment ties the Government to action consequent on membership of the European Communities and that the Supreme Court is the final arbiter of such action. I think this also answers Deputy Desmond's question as to who is to decide whether a law is consequent on membership, whether it was to be the Dáil or the institutions of the European Communities. The answer is that it is open to any person to raise in our courts the question of whether such legislation is consequent on membership of the Communities. In that case the final decision will rest with our own Supreme Court.

But our Supreme Court can say that this is peculiarly a Dáil decision.

They could, of course, and therefore the Dáil would have competence, but our experience of the Supreme Court is that it has been a very close watchdog of the people's rights——

In recent years.

Up to the present.

——and I think we can leave the people's rights in this case to the Supreme Court. Deputy Desmond suggested that the Government were indulging in what he called indecent haste in bringing forward this legislation. I explained already why we brought the legislation forward—in anticipation of the White Paper. I do not think it matters but it was Deputy Desmond's leader, Deputy Corish, who in October last asked me specifically to bring forward this legislation because by then, he said, we ought to know what type of constitutional amendments would be required. Deputy Corish was anxious that the Dáil should be informed as soon as possible as to what these constitutional amendments were to be. I would like to point out again, as I have done in the House on many occasions, that the extent and form of the constitutional changes required have been under close examination for some considerable time by the Attorney-General's Committee to which I referred and by the Government.

Perhaps I could move now to the scope and form of the amendment and deal with some of the criticisms that have been made of it during the course of the debate. The proposed amendment was chosen after very careful consideration. We see certain essential requirements for this type of amendment. First, it should be comprehensive enough to enable us to fulfil all the obligations required by the three Treaties and the great body of legislation that has flowed from them. As I said in my opening speech, the Supreme Court is competent to decide what Articles of the Constitution will be affected and that if we amend individual Articles, it will be very difficult to ensure that all the necessary amendments are carried out. It would be impracticable to refer the huge body of Community legislation to the Supreme Court for them to decide the compatibility of each item with our Constitution. The Court would consider the compatability of each separate obligation only after it became part of the law of this State or if it was referred to them, that is, in the form of a Bill under this Constitution.

I think Deputy FitzGerald agreed that the only realistic course in approaching this amendment was to have it incorporated in one comprehensive amendment. An Article by Article approach would have the consequence that each Article would have to be expressed as unaltered for domestic purposes but to read differently for the purpose of membership of the European Communities. In that case we could finish up with two Constitutions, one for domestic purposes and one relating to the Communities. Deputy Cosgrave argued in favour of providing that certain Articles of the Constitution should be excluded specifically from the scope of the proposed amendment, particularly those dealing with fundamental rights and freedom. It would be difficult to make a selection for this purpose. The Constitution is the fundamental law of this country and there would be no obvious criterion by reference to which any Articles could be classified as being more fundamental than others. Deputy Cosgrave referred to that part of Article 15 which deals with the right to raise and maintain military armed forces which right, the Article says, is vested exclusively in the Oireachtas. The Deputy referred also to Article 28, subsection 3 which says that:

Nothing in this Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion...

He referred to Articles 40 to 44 which are the Articles that deal with personal rights. I agree that all of these are very important Articles but there are other very important Articles which could be described as fundamental but which would not be affected by our accession to the European Economic Communities. For example, there are Article 9 which deals with citizenship, Article 12 to 14 which deal with the Office of the President, Articles 16 and 17 dealing with election to Dáil Éireann and Articles 18 and 19 dealing with election to Seanad Éireann. Therefore, it is clear that drawing up a list of the type mentioned by Deputy Cosgrave would entail classifying some Articles of the Constitution as being more fundamental than others. This, at least, would give rise to considerable controversy and, furthermore, it would be assumed that these Articles which are omitted could be affected by our membership of the Communities.

Deputy Cosgrave mentioned also the transitional period when this Constitution was before the people and he said that there were certain Articles at that time that were excluded from amendment. I do not think he made the point that they were more fundamental in content but they were excluded specifically at that time because one of them, Article 46, was the Article which enables the Constitution to be amended. There was no point in having that amended since it was the machinery for amendment itself. The other Articles were called transitory provisions, starting with Article 51 and these, automatically by their own terms, ceased to have effect after the three year transitional period. Therefore, there is no argument there that certain Articles were picked out in the Constitution because of their importance and were deemed to be incapable of amendment.

Some Deputies criticised the phrase "consequent on" as being vague and too wide or, possibly, embracing legislation which does not arise directly from the three Treaties as they stand now. No Deputy referred to the Irish version which, I think, is much more specific although the words used are not very common in ordinary Irish. It refers to acts done "de dhroim do bheith ina chomhalta de na Comhphobail..." That, I think, is much more emphatic than "consequent on". However, I am not completely wedded to the words "consequent on". I can refer to that later. They do refer to action taken by the Government for the sole purpose of discharging obligations which membership of the Community will create for us, obligations, for example, like legislation to give effect to an EEC directive which, as I mentioned when opening this debate, leaves it to each member State to enact whatever legislation is necessary in order to achieve the result prescribed in the directive.

A further essential requirement is that the amendment to the Constitution be no wider than is necessary to enable this country to accede to the Communities and to fulfil the obligations imposed by membership. The amendment proposed in the Bill enables us to accede only to the three Communities at present in existence and to validate laws enacted by the State consequent on such membership. These laws, as I also pointed out, can be tested in Irish courts to ensure that they are consequent on membership of the Communities. If they are not, they will be rendered invalid by our courts. It is clear, therefore, that the proposed amendment meets our requirement in this regard. If, however, we were to proceed by piecemeal amendment, as suggested by some Deputies, there would be a tendency to include a large number of Articles, larger probably than might be strictly necessary, because only the Supreme Court is competent to decide those Articles that do require amendment and the Articles that do not. By comparison. I think it is evident that the amendment proposed in the Bill can be said to be a more satisfactory way of dealing with the problem of confining possible legislation to the requirements that will fall on us as a result of our membership.

One further essential requirement is that the amendment should be simple. Both parties opposite have agreed that this should be so, that it should in no way be confusing for the general public and should, if possible, and I think that this will be possible, facilitate a simple answer of "Yes" or "No".

I think that an amendment Article by Article would be so confusing for the electorate that it would be completely unfair to present the amendment to the Constitution in that way. This procedure was examined—that is amendment Article by Article, and the exclusion of specific Articles from the scope of any constitutional amendment—by the Attorney General's legal committee and by the Government and it was only after the fullest consideration that both these courses were rejected. Neither of them satisfied the essential requirement which I have mentioned, that the amendment should be completely comprehensive, not wider in scope than is absolutely necessary and simple enough to make the issue clear to everyone.

A number of Deputies suggested that the proposed amendment before the House might be unconstitutional under Article 46, paragraph 1, of the Constitution. This Article reads:

Any provision of this Constitution may be amended, whether by way of variation, addition, or repeal, in the manner provided by this Article.

The operative word there is "addition" and the proposed amendment is in accordance with that part of that Article because it involves the addition of a new subsection to Article 29.

The fear is that it may involve a great deal more and may nullify the Constitution.

Certainly, any Article.

I still suggest that the Supreme Court will have seisen of these things and, as I said, any citizen is entitled to——

Provided he has the guts and the money.

The Deputy had the guts one time. Where he got the money I do not know, but he won the case anyway.

Deputy Seán Sherwin raised a hare, that I am afraid is not going to run, about Articles 2 and 3 of the Constitution. I have heard noises in the same direction from outside the House but the Treaty of Rome or any of the other two treaties have nothing to do with taking territory from one country and giving it to another, I can assure the Deputy. Even though I did not accept in any way that Articles 2 and 3 were affected, I had the matter examined by the Attorney General's committee and I am assured that there is no validity in the proposition put forward by the Deputy.

I raised the matter purely because sovereignty over existing territories of applicant members would be upheld by the Treaty and Britain claims jurisdiction over the Six Counties.

There is no obligation whatever in the Rome Treaties of recognising current territorial limits.

But I think it is implied.

The Deputy can rest assured on that point.

Whatever the position is now it has been the same position for the last ten years and it was the position when this country decided to apply for membership.

That is a fact. I do not think there are any other points I need go into now. Anything else raised can be dealt with on Committee Stage. I believe and the Government believe that this amendment is the best way of approaching the matter. I recommend it to the House for acceptance but our object is to present to the people an amendment of the Constitution that is best for the country and I can give an assurance that I will be very happy to examine objectively any amendment that will be put forward on Committee Stage.

I am glad to get that assurance from the Taoiseach.

Why did the Government not put in the first part of this Bill and leave the remainder until after agreement had been reached with the Common Market?

The Deputy was not here when I opened before Question Time.

I was here for the Taoiseach's opening speech but not before Question Time.

I indicated before Question Time that this was by way of an enabling Bill, that it does not in any way prejudice or prejudge any action we take subsequently in relation to our application for membership, that is, in negotiations or in this House by way of debating and voting on the conditions of entry. The Minister for Local Government will have to make an order, in any event. That order need not be made if the matter does not arise.

That is not exactly the meaning of my question. My question was why was the first part of this Bill not taken—I do not think there would have been any objection—and the second part of it left until the agreement had been made with the Communities, and then pass the other part as a separate Act?

The Deputy can put down an amendment to delete the second part.

I should like very seriously to welcome the Taoiseach's assurance which, I hope, will be carried into operation, that he will consider very fully the anxieties of the people on Committee Stage of this Bill.

My interest is to get the best amendment through.

Question put: "That the words proposed to be deleted stand."
The Dáil divided: Tá, 106; Níl, 17.

  • Aiken, Frank.
  • Allen, Lorcan.
  • Andrews, David.
  • Barrett, Sylvester.
  • Barry, Peter.
  • Barry, Richard.
  • Begley, Michael.
  • Belton, Luke.
  • Blaney, Neil.
  • Boylan, Terence.
  • Brady, Philip A.
  • Brennan, Joseph.
  • Brennan, Paudge.
  • Briscoe, Ben.
  • Brosnan, Seán.
  • Browne, Patrick.
  • Browne, Seán.
  • Bruton, John.
  • Burke, Joan.
  • Burke, Liam.
  • Burke, Patrick J.
  • Burke, Richard.
  • Burton, Philip.
  • Byrne, Hugh.
  • Carter, Frank.
  • Carty, Michael.
  • Childers, Erskine.
  • Clinton, Mark A.
  • Collins, Gerard.
  • Conlan, John F.
  • Connolly, Gerard C.
  • Coogan, Fintan.
  • Cowen, Bernard.
  • Creed, Donal.
  • Hogan O'Higgins, Brigid.
  • Hussey, Thomas.
  • Jones, Denis F.
  • Kenneally, William.
  • Kitt, Michael F.
  • Lalor, Patrick J.
  • Lemass, Noel T.
  • Lenihan, Brian.
  • L'Estrange, Gerald.
  • Loughnane, William A.
  • Lynch, Celia.
  • Lynch, Gerard.
  • Lynch, John.
  • McEllistrim, Thomas.
  • McLaughlin, Joseph.
  • McMahon, Lawrence.
  • MacSharry, Ray.
  • Malone, Patrick.
  • Meaney, Thomas.
  • Cronin, Jerry.
  • Crotty, Kieran.
  • Crowley, Flor.
  • Cunningham, Liam.
  • Davern, Noel.
  • Delap, Patrick.
  • de Valera, Vivion.
  • Dockrell, Henry P.
  • Dockrell, Maurice E.
  • Donegan, Patrick S.
  • Donnellan, John.
  • Dowling, Joe.
  • Esmonde, Sir Anthony C.
  • Fahey, Jackie.
  • Faulkner, Pádraig.
  • Finn, Martin.
  • Fitzpatrick, Tom (Cavan).
  • Fitzpatrick, Tom (Dublin Central).
  • Flanagan, Oliver J.
  • Flanagan, Seán.
  • Foley, Desmond.
  • Forde, Paddy.
  • Gallagher, James.
  • Geoghegan, John.
  • Gibbons, Hugh.
  • Gibbons, James.
  • Gogan, Richard P.
  • Governey, Desmond.
  • Haughey, Charles.
  • Healy, Augustine A.
  • Herbert, Michael.
  • Hillery, Patrick J.
  • Hillard, Michael.
  • Hogan, Patrick.
  • Molloy, Robert.
  • Moore, Seán.
  • Nolan, Thomas.
  • Noonan, Michael.
  • O'Connor, Timothy.
  • O'Hara, Thomas.
  • O'Higgins, Thomas F.
  • O'Kennedy, Michael.
  • O'Leary, John.
  • O'Malley, Des.
  • O'Reilly, Paddy.
  • O'Sullivan, John L.
  • Power, Patrick.
  • Smith, Michael.
  • Smith, Patrick.
  • Timmins, Godfrey.
  • Timmons, Eugene.
  • Tunney, Jim.
  • Wyse, Pearse.

Níl

  • Browne, Noël.
  • Cluskey, Frank.
  • Corish, Brendan.
  • Coughlan, Stephen.
  • Desmond, Barry.
  • Kavanagh, Liam.
  • Keating, Justin.
  • Murphy, Michael P.
  • O'Connell, John F.
  • O'Donovan, John.
  • O'Leary, Michael.
  • Pattison, Séamus.
  • Sherwin, Seán.
  • Spring, Dan.
  • Thornley, David.
  • Treacy, Seán.
  • Tully, James.
Tellers: Ta, Deputies Andrews and Meaney; Níl, Deputies Cluskey and Kavanagh.
Question declared carried.
Question "That the Bill be now read a Second Time" put and declared carried.

When is it proposed to take the Committee Stage?

I suggest we formally put it down for next Tuesday. I realise that the actual taking of Committee Stage will be subject to negotiation.

Fair enough.

Committee Stage ordered for Tuesday, 15th December, 1971.