An Bille um an Seachtú Leasú ar an mBunreacht (Forais Árdoideachais do Thoghadh Comhaltaí de Sheanad Éireann), 1979: An Coiste agus na Céimeanna Deiridh. - Seventh Amendment of the Constitution (Election of Members of Seanad Éireann by Institutions of Higher Education) Bill, 1979: Committee and Final Stages.

ALT 1.

Tairgim leasú a 1:

I leathanach 5, i ndiaidh líne 14, go gcuirfear isteach an mhír nua seo a leanas:

"(a) déanfar míreanna i agus ii d'alt 4 a leasú trí ‘mura bhforáiltear a mhalairt le reachtaidheacht' a chur i ndiaidh ‘triúr' i mír i, agus i ndiaidh ‘triúr' i mír ii.".

I move amendment No. 1:

In page 4, after line 14, to insert the following new paragraph:

"(a) paragraphs i and ii of section 4 shall be amended by the insertion of ‘unless otherwise provided for by legislation' after ‘Ireland' in paragraph i, and after ‘Dublin' in paragraph ii.".

The purpose of the amendment is to clarify the position in respect of the Seanad seats of the NUI graduates and the Seanad seats of the University of Dublin graduates. Article 18.4 states quite clearly that

The elected members of Seanad Éireann shall be elected as follows:

i. Three shall be elected by the National University of Ireland.

ii. Three shall be elected by the University of Dublin.

In the Bill before the House no attempt was made to change the word "shall" even though the Bill may become law and will add two subparagraphs to section 4.

Paragraph 3º of Part 2 of the Schedule says:

Nothing in this Article shall be invoked to prohibit the dissolution by law of a university mentioned in subsection 1º of this section.

It is intended, as we know, to introduce legislation to dissolve the National University of Ireland and to establish independent universities. After the constitutional amendment has been made and the National University of Ireland dissolved I would not like to see still written into the Constitution the words:

i. Three shall be elected by the National University of Ireland.

ii. Three shall be elected by the University of Dublin.

It is bad drafting to leave those two sentences there without qualification. I attempted in my amendment to qualify them by adding at the end of each sentence the words "unless otherwise provided for by legislation". I am allowing for the dissolution of the National University of Ireland and for the protection of the present seats of the University Senators and the position in relation to Seanad by-elections as mentioned in the Minister's speech yesterday. I am also allowing for the dissolution of University College, Dublin, and for the redistribution of the three NUI seats and the three University of Dublin seats. The words I suggested in my amendment to be added to subsections i and ii of section 4 would make the reading of the Constitution clearer.

I appreciate the point made by Deputy Collins but the wording of the Bill covers fully this point in subsection ii of section 4 of Article 18 by providing that any election arrangement to be introduced in substitution for the arrangement in subsection i will be provided for by legislation, as the House knows from yesterday's debate. The existing arrangements—this will be renumbered subsection (4) (i)—must remain unchanged because it must continue to have effect until the substitute arrangements have been made and have been legislated for. All these points are old country for us because various drafts were suggested and it was felt that the safest wording was one which covered the existing situation, made provision for, say, the eventuality of a by-election and guaranteed that the eligibility of existing Senators to sit would not be under challenge.

I still believe the drafting is sloppy. Having confidence in the Minister to introduce legislation to dissolve the NUI in, say, a year's time.

I hope it will be a lot sooner than that.

Knowing parliamentary procedure it may not be. There will still be a clear statement in Article 18 of the Constitution that three shall be elected by the NUI, yet there will be enabling clauses to allow the dissolution of the NUI. I am certain that people will be perplexed in the future about the wording of Article 18. Simplicity and clarity are essential and are not achieved in the drafting of this Bill. There is also the danger that the position may be challenged in the courts because the word "shall" in an Article of the Constitution must have a high priority in the eyes of the courts. I fully realise the objectives of the mechanics of the subsections, but it is most undesirable to allow sloppy wording in an Article.

I quite agree with Deputy Collins about this drafting and I will presently move an alternative solution myself. I understood the Minister to say that the amendment moved by Deputy Collins might call into question the entitlement of Senators now sitting for the two universities to sit further between now and the amending legislation. I cannot see the Minister's point because if the only change made in the draft is that suggested by Deputy Collins the right of these Senators to sit is completely unimpaired. They have been elected by the NUI and by Dublin University and there has been no intervening legislation to undermine their right. The situation is absolutely plain.

The same would apply in the event of the Minister accepting my amendment because part of Article 18 provides that ordinary law can determine the franchise of the universities. Even if my amendment were made, ordinary law could put right the matter about which the Minister is apprehensive. That problem does not seem to arise at all in respect of Deputy Collins's amendment.

I was talking in the general context of the drafting of the Bill. Specifically in regard to Deputy Collins's amendment, I maintain that the point is fully catered for in the proposed subsection.

I agree that it is fully catered for in the Minister's subsection, but if he had set out to try to find a clumsy and inelegant way of doing it he could not have succeeded to a greater extent.

I do not admit there is anything clumsy or inelegant about it. All these points were taken fully into account and we had several drafts more or less along the lines of Deputy Kelly's amendment but it was felt that the present format, which I admit looks opaque, was the only safe one.

There will be a good deal of scratching of wigs over this when the time comes.

Expensive wigs.

If the constitutional amendment is accepted by the people and legislation is brought in to dissolve the NUI, there will still be a simple sentence in the Constitution stating that three shall be elected by the National University of Ireland. I maintain that the word "shall" has considerable legal strength in the Constitution and may be open to challenge in the courts, even though I take the point that under the Bill dissolution by law of a university is not prohibited. I am not a constitutional lawyer but I feel that the word "shall", if it remains without qualification, may lead to legal hassle.

It looks as if the word "shall" is of considerable strength but Deputy Collins is forgetting that if the amendment is accepted there will be a decision of the people against which any word in the Constitution, no matter how strong, will not be able to stand. It will be a decision of the people that the dissolution by law of any university shall not be prohibited. It seems plain that the amendment, if accepted, would be overwhelmingly stronger than the word "shall" in the place mentioned by Deputy Collins.

I maintain my point.

Tarraingíodh siar an leasú faoi chead.

Amendment, by leave, withdrawn.

Tairgim leasú a 2:

I leathanach 5, línte 15 go 20, go scriosfar míreanna (a), (b) agus (c) agus go gcuirfear ina n-ionad:

"(a) in alt 4—

(1) cuirfear mír i nua mar a leanas in ionad míreanna i agus ii:

‘i. Toghfaidh forais árdoideachais seisear.',

(2) déantar mír iii a athuimhriú mar mhír ii,

(b) in alt 6, cuirfear "ag na forais árdoideachais" in ionad "ag na hollscolaibh".

I move amendment No. 2:

In page 4, lines 15 to 19, to delete paragraphs (a), (b) and (c) and substitute:

"(a) in section 4—

(1) paragraphs i and ii are replaced by a new paragraph i as follows:

‘i. Six shall be elected by institutions of higher education.',

(2) paragraph iii is renumbered ii,

(b) in section 6, "the Universities" are replaced by "institutions of higher education".

I explained yesterday the purpose of this amendment. I appreciate the reasons for haste in regard to this Bill but it is unsatisfactory that the appearance of the Bill should be so long delayed that a Deputy wishing to put down an amendment, not to a Bill about field drainage but to a Bill to amend the Constitution, should be asked to do so within ten minutes. I did my best but I would not be surprised if my amendment is not perfect, apart from the substantive objections which the Minister may have to it. I would not wish to stake very much on its correctness as a piece of drafting. I had not even time to type it out.

The object is to try to avoid the extreme inelegance and clumsiness of the method adopted in the draft of the Bill before us. It makes a much more flexible situation and leaves it open to legislation to determine what shall be reckoned as institutions of higher education for the purpose of the six Seanad seats. It also provides a certain flexibility in regard to assigning seats as between Dublin University and the NUI. I do not imagine this is one of the Government's objectives, though I can imagine circumstances in which it might be. There might be a lot to be said for giving a larger representation to that university which has an enormously larger graduate body. I do not feel strongly about it and am not pressing the point, but such a case might be made. If so, the draft I have suggested would make that possible without any further referendum because all six seats would be attributable to institutions of higher education, whether the NUI, Dublin University, the NIHE, the Municipal College of Music or whatever. These possibilities would all be comprised within the fairly simple formula I have suggested. I put down a consequential amendment, as part of the same amendment, which would be necessary in the event of the replacement of the universities in paragraph 6 with institutes of higher education.

I must admit that if my amendment were accepted, legislation would be necessary in advance of the next Seanad election whereas as matters stand, even with the amendment being put forward by the Minister, it is possible that a further Seanad election could take place with members being returned by the NUI and by Dublin University. If that is the main difficulty in regard to accepting my amendment it is a signal that there is not intended any early move by the Government in regard to Seanad representation for other institutes of higher education.

That is not true.

If the Constitution is amended as the Minister proposes it would seem that it would be possible to hold an election on the existing Seanad electoral law after the next dissolution of the Dáil without bringing into the net any other institution of higher education. In other words, the Minister is not doing anything but leaving himself an option which the Government may choose to exercise or not to exercise between now and the next Seanad election. My amendment would oblige them before the next Seanad election to make statutory provision for the franchise in such a way as to compel them to name the institutions to which they were willing to accord a share of Seanad representation. I agree that that is not merely a drafting change but I hope that the Minister would not find that a compelling objection.

On a general point, if the amendment is accepted by the people, the Legislature will be free to have all six seats taken as one constituency or to confine seats to specific groups of graduates or to graduates of a specific university or institution. There is total freedom for the Legislature in this regard as the Deputy will realise if he reads the Bill carefully.

Regarding Deputy Kelly's amendment, having assured the Deputy first that there is no intention on my part to delay legislation in respect of the new independent university, that I intend to push ahead with the legislation as quickly as possible, any reading of the Bill that would be taken as an indication of delay or causing inadvertently is a wrong reading.

I did not mean that the Minister intended to delay the legislation but made the point that if he found my amendment objectionable on the ground that it obliged him to legislate quickly, I would take that as a signal that delay was intended.

It is my intention to push ahead with the legislation with all possible speed. The amendment we are considering now was given careful consideration by us before the Bill was brought before the House but we did not deem it adequate for reasons I shall outline. First, there is the question of the safeguarding of the continued eligibility of election to the Seanad on the university franchise. It was contended that that would be covered by paragraph 9 of Article 18 but there was some doubt about it. As the Deputy has said wig scratching can take place in matters of law. We did not wish to give any further reason for itch and that is why the Bill was drafted to cover all eventualities.

In the context of the deletion of provisions i and ii of paragraph 4 of Article 18 by referendum it was felt that the provision of paragraph 9 of Article 18 could not be relied on for this purpose. The best legal advice available to us was that on the face of it, the provision could be relied on but if there was any eventuality, anything that could be thought up by the more subtle legal mind, we wished to provide for such eventuality.

Another point was the possibility of a by-election, for example, in the University of Dublin or for the NUI panel. Nobody has a guarantee of life. Also, a Senator might resign. Therefore, we wished to cover the eventuality of a by-election among the Members elected by the NUI or by the University of Dublin prior to the passing of the legislation. Deputy Kelly may say this provides an excuse for delay but delay is not intended.

Another point is that there must be a freedom of choice for the date for a general election. In theory and in practice the Government should be free to call a general election at any time. This possibility had to be covered also in the legislation.

I do not think they will call one in the course of this year.

The Constitution and the laws of our land are important. Eventualities must be covered, regardless of how limited the possibility. The drafting was considered carefully during a long period of time. Having regard to these matters, I am not in a position to accept Deputy Kelly's amendment.

Regarding the last point made by the Minister, I agree gladly that the Taoiseach must have discretion to seek a dissolution when he so wishes but obviously it would be a major legal embarrassment to the Taoiseach, who naturally would wish to keep his manoeuvrability intact, to be told by the Minister that it would be a year before the question could be sorted out.

Therefore, I see the Minister's point, but on the other hand if my amendment were accepted we would still have paragraph 6 of Article 18 but it would read that "the members of Seanad Éireann to be elected by the institutions of higher education shall be elected on a franchise and in the manner to be provided by law". That means that a Bill in respect of which there should be no reason for delay and which under pressure I could draft before lunchtime would give the Minister, first, adequate legal provisions to deal with the by-election situation, and, secondly, adequate legal provision to provide that no question could arise about the legality of the continued tenure until the dissolution of the Seanad. I realise the issue is not political and I appreciate that the Minister had available to him the best legal advice possible.

Some of that advice comes possibly from people I know and for whose judgment I have a lot of respect but in using the word "opaque" the Minister has unwittingly admitted the point I am trying to make. This would appear to be one of the most obscure parts of the Constitution, and I repeat that the Constitution is an instrument which, if only for reasons of dignity, ought not to have to be construed like a revenue statute or a statute about Local Government which is a series going back to the 1860s. It ought not to be necessary to scratch one's wig about the meaning of it. You might scratch your wig about the meaning of a fairly porous or difficult term of what is exactly a family. We have discussed that here recently in connection with the Bill on family planning. There may be a difficulty in putting that on paper. There may be political as well as legal difficulties in putting it on paper. However, it cannot be difficult to put on paper in a somewhat different form what is involved here and bring in the necessary stop-gap legislation. If the Minister's Bill is going to be put through in this way, I am afraid it will be a wrong step.

I may not have understood the Minister correctly. Was he saying that he proposed to retain to himself the right to determine the exact way in which these seats should be distributed in a certain constituency or combination of constituencies?

The point was raised by Deputy Kelly to which I was simply replying. I said that the amendment leaves it open to the Legislature to decide, in whatever way it wishes, the allocation of the six Seanad seats. Deputy Kelly raised the question of a university which had a far greater electorate than another university and talked about the idea of some equitable allocation of seats as between one university and another, having regard to the numbers of the electorate. My reply was that the Amendment to the Constitution Bill before the House leaves the Legislature completely free to have the six Senators elected in whatever way, in its wisdom, it decides.

Does Deputy Kelly's amendment leave it less free?

I was simply making the point in answer to Deputy Kelly's question.

Except that I achieved that in two lines in a single paragraph. The Minister achieves it in about 20 lines in three or four paragraphs.

What I was going to say was that Deputy Kelly's amendment was considered but it was decided that it did not cover all the possibilities.

I understand that the Minister considered it fairly.

The Chair asks if the amendment is withdrawn?

Tarraingíodh siar an leasú, faoi chead.

Amendment, by leave, withdrawn.
Cuireadh an cheist: "Go bhfanfaidh alt a 1 mar chuid den Bhille."
Question proposed: "That section 1 stand part of the Bill."

Can the Schedule be discussed if section 1 stands part of the Bill? Section 1 enacts the Schedule.

The Schedule may be discussed after the section.

Can we amend the Schedule if we have agreed section 1?

I should just like to know, for my own information, if we now agree section 1, are we not agreeing, ipso facto, the Schedule as it stands, which is referred to in the various parts of section 1.

The Deputy may discuss the section.

Sorry, I may be wrong about that. Let it go.

Cuireadh agus aontaíodh an cheist.

Question put and agreed to.

Tairgim leasú a 3:

I gCuid I, leathanach 7, líne 7, "sa Stát" a scriosadh agus "in Éireann" a chur ina ionad


I gCuid II, leathanach 7, líne 22, "the State" a scriosadh agus "Ireland" a chur ina ionad.

I move amendment No. 3:

In Part I, page 6, line 7, to delete "sa Stát" and substitute "in Éireann"


In Part II, page 6, line 23, to delete "the State" and substitute "Ireland".

I raised this matter yesterday on Second Stage. I should like to hear what the Minister has to say to it in a more considered fashion than in his answer on Second Stage of the debate. We were talking, on Second Stage, about the possibility of giving special representation to any particular group of institutions or any individual institutions. In my speech I gave historical evidence for the assumption that the history of the university seats in the Seanad has been, over the years, bound up with the apparent desire by succeeding administrations of different political complexions to make arrangements which would have the effect of giving a somewhat disproportionate representation to people who have some connection with the northern part of our isle. In the past, the mechanism which was judged most appropriate for giving a positive discrimination in relation to people coming from the North was the mechanism which gave Trinity College, Dublin University, the same number of seats in the Seanad as the National University, despite the fact that its graduate body was very much smaller, and still is. At present the Trinity College graduate electorate is about 8,000; the electorate of the National University numbers five times as many. Yet, the two institutions contribute the same number of Members to the Oireachtas under the existing Constitution and legislation.

We may ask two questions in relation to that general principle, now that we are at this juncture in our constitutional history. The first is, is it appropriate to continue to seek to give some special weight of representation to people who have strong connections with the North of Ireland in our Legislature? Secondly, what is the mechanism which is most suitable for doing this? It is reasonable to try, with constitutional and legal mechanisms, to bridge the gap between North and South, even at the cost of some element of positive discrimination. The university or higher education representation in Seanad Éireann has in the past been used under such a mechanism. It seems there is no reason why it should not continue to be used. The next, more detailed, question is whether that mechanism should be through the framework of Dublin University representation or not. This is a more difficult question because Dublin University, in relation to its student body in particular, has changed very substantially over the years.

The Minister for Education quoted the Provost of Trinity College as saying that, given the present composition of the student body, it had at least as good a right to be described as a national university as the other institution which actually bears that name. Indeed, this is probably the case. I find it difficult, logically, to argue for a special reservation, if one likes to put it this way, at this point in time, for any particular institution in the Republic, even Trinity College, although I am well aware of the particular contribution of that institution to the State, through its members in Seanad Éireann. I do believe that it is an appropriate occasion to think in terms, not just of widening the electorate to include other institutions of higher education in the Republic but of at least, establishing the possibility, which may or may not be seized by the Government of the day, of widening that electorate to include the graduates of institutions of higher education in the northern part of our island. I would go so far as to say that if any seats are to be reserved anywhere, if there is to be any element of positive discrimination in the legislative arrangements proposed by the Minister after the referendum, this positive discrimination should apply to that part of the electorate who are Irish citizens, who live north of the Border and who are graduates of third-level institutions in that part of the island.

My amendment is put down specifically as an enabling one. It does not force the Minister to do anything. It does not force him to extend the electorate to include the graduates of Queens, the NUU or the Northern Ireland Polytechnic. But it does make it possible for him or for any other Minister for Education so to do if he thinks that it is a good idea. In his reply to this matter yesterday the Minister was very brief, he simply said that he could not accept it. We want better reasons than a flat denial because the terminology that I have adopted is clear. There is any manner of argument about the constitutional status of this, that and the other. Surely the use of the word "Ireland" in an Act, or even in our Constitution, is not capable of misinterpretation or misunderstanding. It would plainly cover everything that the Minister wants to do in the short-term in relation to institutions in the Republic of Ireland. It would enable him to do anything he wanted to do, obviously with the agreement of the institutions and of the graduates of the institutions concerned in the North of Ireland, at any future date. It does not tie his hands in any way. It lays the foundations for another bridge towards the North. I urge him to accept the amendment.

I appreciate the idea behind Deputy Horgan's amendment. I accept that there must have been an element of positive discrimination in favour of the graduate body of Trinity College in the allocation of three seats, although the numbers changed over the years. In fact, the NUI grew away in numbers from the University of Dublin. In so far as the disproportion was designed to be a nod in the direction of what was then called the minority, it was defensible. The decision on the allocation of seats on the election to the Seanad is a decision for this House and it is not before the House at the moment. Deputy Horgan's amendment raises this matter indirectly.

If Deputy Horgan's thesis is that by allocating three to 1,000 in one case and three to 40,000 in another we were making some kind of a nod in the direction of the North, his thesis is not sustainable because of the change in composition of the student body in Trinity College.

Yesterday I said—and I regard it as of some importance—that we should encourage students in the Six Counties to continue to look towards Dublin for university education. We must not forget that many students in the NUI are from the Six Counties. There has been a tradition that both the University College of the NUI and Trinity College of the University of Dublin have attracted many students from the North. For participation in the election to the Seanad, the best approach would be to encourage their coming in at least as large numbers as they have been coming over the years.

My impression is that the number is growing.

Yes. In my Faculty they seem to be coming from the minority in the North but the number is bigger than it used to be.

The right approach is to try to attract more students. In the context of continuing university representation with graduate electors, they will be participating in the political life of the country.

Up to 1948 the word "Ireland" was used. Since then the word "State" has been used. However worthy the motives that prompted Deputy Horgan to put down the amendment, I regret I am not in a position to accept it. We had the same kind of debate when we were dealing with the NCEA Bill, which is still before the House.

During the debate on the NCEA Bill I expressed concern that one of the qualifications for membership of the council is residence in the State. I believe that restriction is very retrogressive and does not establish a generosity of spirit towards people living in Northern Ireland. I have sought a change in the attitude in respect of membership of the council, especially in the membership of councils involved in educational matters. We have an opportunity of bringing together under the Bill experts from the North and other countries. That aspect of the Bill is currently under discussion.

The same narrowness of mind is being maintained in the Bill. I agree with Deputy Horgan that the word "Ireland" should be used. This word is used in the English translation of Article 4 of the Constitution. The use of the word will allow a more liberal attitude to participation in the political, social and cultural affairs of the whole of Ireland by people living in the North.

Deputy Horgan's amendment has a generosity of spirit with which I agree. I support it without reservation.

We really need to cudgel ourselves, not only inside this House but outside it, into different ways of thinking about the North. We really need to have what one could describe as more all-Ireland thinking. What my amendment is designed to do is simply to help create a general atmosphere of openness towards the North and to make it possible for this or any future Minister for Education to take appropriate legislative steps in the wake of an improvement in the relationships between the two parts of our island, to give substance to a basic educational link.

It is true, as Deputy Kelly says, that of course there will always be people from the North coming down to the South to our educational institutions but that, with all due respect, is not the answer that the Minister claims it to be to my amendment. I was interested in passing to note that, although he referred to the change of terminology in 1948 or thereabouts, he did not go so far as to say that there was a major constitutional objection to the use of the word "Ireland" in this context.

In relation to what Deputy Collins has said I should point out of course that I am not even suggesting that this could be used to extend the franchise to people living, for example, in Northern Ireland. If this legislation is passed or if the referendum is passed by the people without this amendment we will have a situation whereby somebody who has graduated in an institution in the Republic, whose entitlement to vote may indeed be somewhat questionable because of some misunderstanding about citizenship, who may no longer be living here and who may be paying his taxes, in the words of the late Deputy Seán Lemass, to any other Exchequer, will be entitled to vote for a Member of the Oireachtas even though he lives in Kuwait or Bangkok, whereas the Minister for Education is shutting off from himself the possibility of giving a graduate of Queen's University who lives and works in Dublin the same rights. That is all I am asking: that he should give himself the possibility of making that kind of right available in Ireland to graduates of Irish educational institutions.

For the reasons that I have mentioned I am not able to accept Deputy Horgan's amendment. I do not think that the situation is as grave as Deputy Horgan says. The points that we made already are of numbers increasing and, as Deputy Kelly said, in some instances of students from the Six Counties coming to our southern universities. The link, which I am afraid is not as strong as it used to be, between Trinity College and the mainly minority group, though perhaps not exclusively, is still there. Student numbers are down and they are certainly down proportionately. All these factors still keep us very much in touch with the Six Counties. I do not think that giving the vote to the graduates at Queen's University—and of course that would mean the New University of Ulster as well—would be particularly significant in this regard and I do not think that the graduates of Queen's University have ever expressed any wish that they should be included in the electorate of Seanad Éireann. In fact I would like to see the day when the vast majority of them would be clamouring for such power to elect to Seanad Éireann.

I accept the Minister's point that there has not been a clamour from the graduates of Queen's University or indeed from any educational institution in the North for this kind of right to representation as part of an electorate. Would the Minister not agree that this is precisely because we have over 50 years here developed a bifurcated way of thinking about ourselves—they up there do not think about us down here and we down here, although we may make noises from time to time, do not think very much about them up there. This is designed simply as a gratuitous gesture. It is not even a very substantial gesture, but it leaves it open to the Minister for Education to do or not to do anything he wants to. But as an initiative it is without the kind of horrendous political overtones that many initiatives from the South carry and are seen as carrying by people in the North and it is on those grounds that I recommend it.

If there is one area where there has been considerable cross pollination and continual contact it has been at the university level. I must say that in other spheres of our national life the contact and the interchange of scholars and friendship between scholars in the Six Counties and in the south of Ireland has always been kept up but only in that particular field, so it is not a good field for Deputy Horgan to concentrate on. There has been no kind of academic partition ever. There have been external examiners, interchange of lecturers and so on over the years, and it is highly desirable that the universities should set a headline in this regard. But, as I said already in all this, a decision about the allocation of the six Seanad seats and so on is a matter for legislation to come before the House and there will be a full opportunity to discuss it then.

Cuireadh an cheist: "Go bhfanfaidh na focail a thairgtear a scriosadh" agus fáisnéiseadh go rabhthas tar éis glacadh leis an gceist.

Question: "That the words proposed to be deleted stand" put and declared carried.
Fáisnéiseadh go rabhthas tar éis diúltú don leasú.
Amendment declared lost.

Tairgim leasú 4:

I gCuid I, leathanach 7, línte 14 agus 15, go scriosfar "d'agairt chun toirmeasc a chur" agus go gcuirfear "do ghlacadh mar ní a chuireann cosc" in a ionad.


I gCuid II, leathanach 7, line 29, go scriosfar "invoked to prohibit" agus go gcuirfear "held to prevent" ina ionad.

I move amendment No 4:

In Part I, page 6, lines 14 and 15, to delete "d'agairt chun toirmeasc a chur" and substitute "do ghlacadh mar ní a chuireann cosc".


In Part II, page 6, line 30, to delete "invoked to prohibit" and substitute "held to prevent".

This amendment is only a drafting one. There is no substance in it other than the question of usage. I do not put it any further than that. Perhaps the Minister would advise us having had a chance to think about it.

I cannot see how the words "invoked to prohibit" carry the kind of sinister overtones Deputy Kelly attributed to them on Second Stage yesterday. Admittedly he established some kind of guilt by association in a later Article of the Constitution where they are associated with the activities of the ministry of Defence but I am convinced that the words are the most suitable ones in the circumstances.

I do not consider that there is anything sinister about them. I am only trying to establish—and it is not easy to establish despite all the bowing and scraping towards it and the lip service paid to it—that the Constitution is not a model of elegance when it comes to clear and standardised usage. It would be a great deal worse but for the passage of this Bill, but it is not a model even as it stands. In regard to the Constitution, as a classicist like the Minister will recognise, there ought to be something of a lapidary simplicity about it so far as that can be achieved. That extends also to paying attention to the details of usage and not using a form of words which is quite at home when talking about preventing soldiers from commandeering vehicles to using that usage in a quite different setting which is intended merely to convey the permission or, as the case may be, lack of permission for the national legislature to enact this or that kind of measure.

I said yesterday that my amendment will make no change in substance, but I regret to see the linguistic usage of the Constitution being taken so lightly. I believe that this will be the only instance in either the 1937 Constitution or its predecessor of 1922 in which the expression "invokes to prohibit" will be found in connection with outlining a situation in which the Oireachtas is not free to legislate on a certain matter. That has not ever been used before and it is another tiny dimension of messiness which I hoped this Minister above all would have been willing to avoid.

I agree with Deputy Kelly that a lapidary simplicity would be desirable, but the more contact I have with legal people and legal things the less I believe that a lapidary simplicity in anything is achievable. What puzzles me is the word "invokes" which is a liturgical word to a great extent. A few years ago if you took out "invoke" and "vouchsafe" you would not have any prayers left. The word "prohibit", which is a mild kind of verb, should not be interpreted as somehow or other getting from an association with another Article of the Constitution any kind of—for want of a better word—sinister meaning. I do not think that Deputy Kelly meant "sinister" in a sense, but "guilt by association" would be a more appropriate term for me to use. He seems to imply that because they are used later on in an Article of the Constitution in the context of the activities of Defence they should not be quoted here in the groves of academia.

Since the Minister is willing to spend a few minutes talking about a point of usage, there are a few phrases in the Constitution in which the Oireachtas, although declared to be the only authority with powers to make laws for the State, is, nonetheless, prevented from legislating in a particular area or in a particular way or with a particular object. I will give three instances. They are not the only three but they are the most prominent. Article 15.4. says:

1º The Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof.

Article 15.5. says:

The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission.

Article 41.3. says:

2º No law shall be enacted providing for the grant of a dissolution of marriage.

In all these cases the prohibition, so to speak, or barrier placed on the legislative freedom of the Oireachtas, which otherwise is total, is expressed by means of the verb "shall". These are cases in which the Oireachtas is being kept out of a certain field. In Article 40.1., which I mentioned yesterday, the Constitution declares equality of citizens before the law, but it says:

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.

That is the converse. That is not something which prevents the Oireachtas from legislating but an expressed permission for the Oireachtas to legislate notwithstanding something else. That is what we are trying to achieve here. We are trying to express a permission for the Oireachtas to legislate in regard to the dissolution of universities which are named notwithstanding that they continue to be named in this rather inelegant way to which Deputy Collins drew attention.

Here are four instances, three in which the Oireachtas is specifically kept out of a certain area and another in which the right of the Oireachtas to be in that area is asserted notwithstanding a general statement which might appear to call that right into question. Since we are adding another member to that class, the usage which we employ here ought to conform so far as is possible with the usage of the other instances. The model or headline for the usage which the Minister has chosen seems to come from a quite different area, namely, the question of prohibiting the acts of the military in doing things like carrying out summary executions or court martials, submitting civilians to court martial and barricading roads with commandeered vehicles and so on, which might be characteristic in times of war or armed rebellion. I mention this merely as a point of usage. I suppose that I would not get very far with the Minister for Fisheries or the Minister for Defence on a point like this but I would hope that the Minister for Education would at least give a quiet hearing and think about the point I am making. He has to go to the other House and possibly he will see the matter in another way between now and then.

Cuireadh an cheist: "Go bhfanfaidh na focail a thairgtear a scriosadh" agus faisnéiseadh go rabhthas tar éis glacadh leis an gceist.

Question: "That the words proposed to be deleted stand", put and declared carried.
Faisnéiseadh go rabhthas tar éis diúltú don leasú.
Amendment declared lost.
Aontaíodh alt a 2.
Section 2 agreed to.
Aontaíodh an Sceideal.
Schedule agreed to.
Aontaíodh an Réamhrá.
Preamble agreed to.
Aontaíodh an Teideal.
Title agreed to.
Tuaraiscíodh an Bille gan leasú.
Bill reported without amendment.
Aontaíodh an Céim eile a thógáil inniu.
Agreed to take the remaining Stage today.
Cuireadh an cheist: "Go rithfear an Bille anois."
Question proposed: "That the Bill do now pass".

I express concern at the speed with which this Bill has been pushed through this House. It is a Constitution Bill the effect of which will be seen when subsequent legislation is introduced affecting the Seanad representation from the higher institutes of education. We should have given more time to consideration of the contents of the Bill. Longer time should have been allowed for discussion on each Stage of the Bill. It is with reluctance that I acceded to considering the Bill within the time scheme. It is unfortunate that the House should be put in the position that we have to consider a Bill affecting the Constitution with that kind of constraint. The Bill was drafted in a messy fashion and the words used are not as clear as I would like them to be. We should strive for clarity and simplicity in any constitutional amendment and in any Bill dealing with the Constitution. This has not been achieved in this legislation and I consider that unfortunate. My colleague, Deputy Kelly, an eminent expert in the field of constitutional law, also made that point.

I acceded to the request to discuss the Bill within the time restraint because I wanted to allow the Government the opportunity of putting the matter to the people in July. At the same time I must stress that I am not happy with the phrasing of the Bill or the manner in which the Constitution may now be changed. That will happen not in a simple way but in a complicated manner which may be open to a challenge in the courts of law. That would be most unfortunate. If that happens the Government must accept the blame because they did not allow us time to consider each stage of this Bill separately. They did not allow a time gap between the various stages to give us an opportunity of considering the effects of the various stages of the Bill. That was unfortunate but I hope the Seanad will be afforded some more time to consider this legislation.

In this Bill we are introducing a new element into our democratic structure in relation to the Seanad, the widening of the franchise which has traditionally been used to elect six Members of Seanad Éireann from university graduates to at least potential graduates of other third-level institutions. This, it must be stated, whatever reservations we may have about details of the Bill or of the length of time it has taken to pass it, is a positive step and one which is to be welcomed. It may be objected that the idea of special representation for educational interests in a House of the Oireachtas in this matter is an anomaly in this day and age—Deputy Kelly made comments along those lines yesterday—but if that is the case it is really only because the Seanad itself is something of an anomaly being an indirectly elected House which reviews and has certain powers in relation to the legislation passed by this House, a directly elected Chamber.

It seems to me that once one has established in legislation and in the Constitution the idea of an indirectly elected House the question of how those indirect elections should take place is, ultimately, a matter of opinion and of politics rather than a basic principle. It should be no more surprising, wrong or irrelevant that 40,000, 50,000 or 60,000 graduates of institutions of higher education should have the right to elect six Members of the Oireachtas than that one person, the Taoiseach, should have the right to nominate 11 of them. I have pleasure in welcoming the principle of the Bill and I look forward with a keen interest to the legislative instrument with which the Minister will eventually propose to flesh out the details of this principle.

I should like to thank the Deputies who took part in the debate on the Bill. Their contributions were stimulating and interesting and the comments of Deputy Kelly as a constitutional lawyer were more than welcome.

Tá na dlíthe atá le teacht ag éirí as an mBille seo an-tábhachtach ar fad agus níl aon dabht ná go mbeidh díospóireachtaí bríomhaire againn nuair a bheidh na dlíthe atá le teacht roimh an Dáil agus an tSeanad. Tá súil agam sa deireadh, tar éis na díospóireachta, tar éis chíortha, go mbeidh Achtanna fiúntacha againn agus go mbeidh an t-ardoideachas ag feabhsú dá réir.

Cuireadh agus aontaíodh an cheist.

Question put and agreed to.