Amendment No. 1 in the names of Deputies Kennedy, McDowell and O'Malley.
An Bille um an Deichiú Leasú ar an mBunreacht, 1987: An Coiste agus na Céimeanna Deiridh. Tenth Amendment of the Constitution Bill, 1987: Committee and Final Stages.
On a point of order——
I take it that the House agrees to take amendments Nos. 1 to 13 together in accordance with the resolution just adopted.
On a point of order, when will the Amendment to the Referendum (Amendment) Bill, 1987 be taken?
We must dispose of this Bill first. You can discuss your amendment in respect of the referendum Bill with this. The two Bills were debated together and they may be debated together now and put separately if and when required.
Tairgím leasú a 1:
In Alt I, leathanach 5, línte 13 go 18, míreanna (a) agus (b), a scriosadh agus an méid seo a leanas a chur ina n-ionad:
"(a) cuirfear na focail atá leagtha amach i gCuid I den Sceideal a ghabhann leis an Acht seo isteach i bhfo-alt 1º d'Alt 4 den téacs Gaeilge i ndiaidh an fhocail ‘eachtrach' i ndeireadh an fho-ailt,
(b) cuirfear na focail atá leagtha amach i gCuid II den Sceideal a ghabhann leis an Acht seo isteach i bhfo-alt 1º d'Alt den téacs Sacs-Bhéarla i ndiaidh an fhocail ‘Government' i ndeireadh an fho-ailt,
(c) cuirfear an abairt atá leagtha amach i gCuid III den Sceideal a ghabhann leis an Acht seo isteach i bhfo-alt 3º d'Alt 4 den téacs Gaeilge tar éis na chéad abairte,
(d) cuirfear an abairt atá leagtha amach i gCuid IV den Sceideal a ghabhann leis an Acht seo isteach i bhfo-alt 3º d'Alt 4 den téacs Sacs-Bhéarla i ndiaidh na chéad abairte,
(e) cuirfear na focail atá leagtha amach i gCuid V den Sceideal a ghabhann leis an Acht seo isteach i bhfo-alt 3º d'Alt 4 den téacs Gaeilge in ionad na bfocal ‘de bhíthin riachtanais na n-oibleagáidí mar chomhalta de na Comhphobail',
(f) cuirfear na focail atá leagtha amach i gCuid VI den Sceideal a ghabhann leis an Acht seo isteach i bhfo-alt 3º d'Alt 4 den téacs Sacs-Bhéarla in ionad na bhfocal ‘necessitated by the obligations of membership of the Communities'.".
I move amendment No. 1:
In page 4, lines 13 to 18, to delete paragraphs (a) and (b), and substitute the following:
"(a) the words set out in Part I of the Schedule to this Act shall be inserted in subsection 1º of Section 4 of the Irish text after the word ‘eachtrach' at the end of the subsection,
(b) the words set out in Part II of the Schedule of this Act shall be inserted in subsection 1º of Section 4 of the English text after the word ‘Government' at the end of the subsection,
(c) the sentence set out in Part III of the Schedule to this Act shall be inserted in subsection 3º of Section 4 of the Irish text after the first sentence,
(d) the sentence set out in Part IV of the Schedule to this Act shall be inserted in subsection 3º of Section 4 of the English text after the first sentence,
(e) the words set out in Part V of the Schedule to this Act shall be inserted in subsection 3º of Section 4 of the Irish text in substitution for the words ‘de bhíthin riachtanais na n-oibleagáidí mar chomhalta de na Comhphobail'.
(f) the words set out in Part VI of the Schedule to this Act shall be inserted in subsection 3º of Section 4 of the English text in substitution for the words ‘necessitated by the obligations of membership of the Communities'.".
Amendment No. 1 is best understood in conjunction with the wording set out in No. 4 on the list of amendments. The substance of this proposal is to recast Article 29.4 of the Constitution in order to widen its effect to cover other agreements, not simply the Single European Act, and also to cover the difficulties which were referred to on Second Stage in relation to the necessitated obligations provisions now set out in Article 29.4.3º of the Constitution.
Yesterday, Deputy Kennedy pointed out that the origins of the necessitated obligations difficulty in Article 29.4.3º go back to 1972 when the then Member for Dublin South East, Deputy FitzGerald, persuaded the then Taoiseach, Deputy Lynch, to accept the necessitated obligations formula rather than the consequent formula which Fianna Fáil had at that time proposed to be put into Article 29.4.3º.
The Progressive Democrats in putting down this amendment to the Government's Bill believe it is necessary in order to achieve two things. First, it is necessary to state clearly that the ruling of the Supreme Court in the Crotty case in so far as it seeks to curtail the exercise of our foreign executive power by the Government should be explicitly reversed. Secondly, it is necessary to go on to deal with the particular difficulties which the wording of Article 29.4.3º of the Constitution creates because of the necessitated obligations formula which Fine Gael then insisted on. It is necessary to deal with the question of validating matters done on foot of the Single European Act.
The Single European Act, in so far as it constitutes an amendment to the Treaties, has been held by the Supreme Court not to be unconstitutional. The opposite has not been held. The Supreme Court has not ruled, as it might in an Article 26 reference, that the Bill is manifestly constitutional. All the decision held was that Raymond Crotty failed to prove the unconstitutionality of the Act which he was challenging before the Supreme Court. That does not copperfasten or ensure that directives and regulations made consequent on our adherence to the Single European Act will have the same immunity as regulations and directives made on foot of the original Treaties as they stood. The Progressive Democrats are anxious that that loophole should be sealed and, at the same time, that Article 29.4 of the Constitution is recast to make it clear that the position after the referendum is passed will be the same as it was understood to be prior to last Thursday week, that the Government will have the full Executive power that any normal European Government have to conclude treaties of the usual accepted variety between sovereign states.
The purpose of the wording in the amendment is to put the Minister's Department, and his responsibility as Minister for Foreign Affairs, on a par with that of his colleagues and to take him out of what the Supreme Court has put him into, a second class of Foreign Ministers who do not have the usual powers or capacity of a Foreign Minister going abroad to negotiate treaties. Effectively, he has to look over his shoulder all the time at our Constitution while none of his colleagues at the Council table in Europe, or in world fora, is in the same predicament.
It is worth pointing out that the necessitated obligations formula is one which the House should never have accepted in 1972. As a result of the then Taoiseach accepting Deputy FitzGerald's amendment we are now in this predicament. It was not that Deputy FitzGerald did it unconsciously or that at the time he did not understand the effect of what he was proposing, because yesterday Deputy Kennedy showed that the former Taoiseach clearly understood that if Ireland ever became party to an international treaty with foreign policy implications the wording he proposed in 1972 would necessitate the holding of a referendum. It is remarkable that when in Opposition in 1972 he said he wanted a wording which would make it absolutely necessary to have a referendum if we ever became party to a treaty which governed the foreign policy of this country, that he wanted to put it beyond doubt that the people would be consulted and that we now find Fine Gael trotting in and saying that they want a wider wording because they did not anticipate that result. It is a remarkable irony that we are in that position. The purpose of our wording is to undo the damage Deputy FitzGerald caused in 1972. In effect, we want to widen the scope of Article 29.4 of the Constitution which will put us in a position which his damaging amendment, unwisely accepted by the Government in 1972, caused.
The exact wording can be divided into three portions. First, we want to amend Article 29.4.1º of the Constitution by allowing the Government to regulate the Executive power in relation to external affairs in accordance with the provision of any international agreement which the State is a party to and has been approved by Dáil Éireann. We are explicitly recognising what was implicitly accepted up to last Thursday week as the ordinary power to conclude treaties. It is, as was pointed out yesterday, the precise power which Eamon de Valera had in mind when he proposed the Constitution which he authored in large degree. He made an issue of stressing that that was a principal feature of the Constitution but now we have found out that it is not so.
The second substantive change we want to Article 29.4.3º is to remove the references to our adherence to the three Treaties entered into by us in 1972, to take away the words, "necessitated by obligations of membership" and to give to the House the discretion to decide whether any international agreement is one which proceeds from our membership of the European Community. It gives us a wider and more flexible role in deciding what is, or is not, desirable in the light of our membership of the European Community. For instance, it would cover such matters as the European Patents Convention, the constitutionality of which is very much in doubt at the moment. On that account it has not been ratified by this country.
The third change in the wording proposed in the Progressive Democrats' recasting of Article 29.4.3º seeks to give to directives and regulations made on foot of our adherence to the Single European Act the same immunity from constitutional challenge and the same capacity to be part of the domestic law of the State. It seems to me that those provisions should be looked upon by the House as a reasonable way of meeting the problem created in relation to the Single European Act and of dealing with the wider issues which the Supreme Court posed for us by its decision in the Crotty case. It was on that basis that we drafted our amendments, submitted them privately to the Taoiseach for his consideration and the consideration of the Cabinet — I do not know if the Cabinet did consider them — and put them before the House for today's debate.
I do not want to take up too much of the time of the House as I am sure other Deputies will be of the view that business would be best conducted by leaving time at the end for votes to be taken on the various amendments before the 4 o'clock deadline. As a neophyte Deputy coming in here on a point of huge importance and participating in the debate, which it is a great privilege to do, I am amazed that the House could adopt a series of measures in relation to governing its own procedures which makes it incapable of deciding on a procedural basis what appears to be an issue between the Members of the House. If the galleries were filled with observers, be they foreign constitutional experts or schoolchildren within this jurisdiction, and if they understood what was decided here this morning, they would be amazed to see a sovereign Parliament deciding on an amendment to the fundamental law of the State being so fettered by its own decisions in relation to procedure that it effectively prevented itself from debating the real matters which were at issue in the debate.
I urge that the amendment tabled by this party put forward to recast Article 29.4.3º be accepted. It is one which could not arouse substantial opposition. It would not widen the debate in a manner which would cause the ratification of the Act to be jeopardised. It would give back to the country the position it always understood it held until last Thursday, that is, it would be a sovereign independent nation capable of conducting its international affairs in accordance with generally recognised principles.
It is a source of some satisfaction that we are actually having a Committee Stage debate. If the House had voted as the Progressive Democrats wished us to do last night we would not have this debate. The proposal to amend the Constitution would have been vetoed and we would have been the most flagrant defaultervis-à-vis our European partners. It seems to be an extraordinary position for a party who say they are committed to seeing the State adhere to the Single European Act to vote against the principle of the notion of amending the Constitution as they did last night.
The Deputy knows perfectly well what we voted on.
The House voted on the principle that the Constitution be amended so as to allow the Single European Act to be ratified. As I understand it there is wide consensus in the House that the State should ratify the Act. The differences between the parties are questions of detail which are properly matters for Committee Stage. For a party to jeopardise the prospect of the State being able to ratify the Act at all is criminally irresponsible but it is not surprising given the earlier voting record of the Progressive Democrats.
Is that remark in order?
I am sure the Minister will recall that during the course of the debate the same question was put to the House twice. The question put was whether the House wished to incorporate the Fianna Fáil declaration in relation to our traditional policy on neutrality and also the protocol on accession. That question was put to the House on successive evenings. The first evening the Progressive Democrats voted with Fianna Fáil to incorporate it and the second evening they voted with us not to incorporate it. Truly a performance of remarkable consistency.
How could the same question be put twice?
It was put at the end of Second Stage and again as an amendment to the question that the Bill do now pass. During the course of his contribution Deputy O'Malley suggested that there are potentially seven people who could sit on the Supreme Court — six judges of the Supreme Court and the President of the High Court — and that if a different five had sat perhaps a different result might have emerged. I do not know why the Progressive Democrats voted differently on those two successive nights but it may be that a different three of the five Deputies turned up to vote on each of those occasions.
On a point of order, is this relevant? What has this to do with the amendment?
If it was not relevant, I would not tolerate it.
Despite the best efforts of the Progressive Democrats the House has agreed to the principle that the Act be ratified and we are now having a Committee Stage debate. Central to that is the question of whether the approach to be taken is simply one which will seek to undo the effect of the Supreme Court decision as regards the Act or whether it will address the wider implications the judgment had for our foreign policy. On that question Fine Gael have a clear view. It is not enough simply to try to address the immediate crisis. The judgment of the Supreme Court has far wider implications. It is appropriate that the House should seek to restore to the Government the role everyone believed they exercised in relation to foreign policy. That is the purpose of the amendment we have tabled.
The thrust of amendments Nos. 9 and 1 go along broadly similar roads. Each takes the view that the primacy of Government in relation to foreign policy answerable only to the Dáil, should be restated and each seeks to establish what the function of the Supreme Court and the High Court dealing with appeals from the Supreme Court should be. The approach taken by us is preferable in a number of respects. It is neater, tidier and more orderly but that is not of any great substance. However, there are two matters of substance where the Progressive Democrats' amendment is clearly inferior to our approach. In two different sections of their amendment they contemplate a situation where Dáil Éireann shall deem certain things to be or not to be. That represents a considerable overreaction to the decision of the Supreme Court. It is properly for the courts to determine at any given stage whether the Executive or Legislature has exceeded its function. It would be without precedent to suggest that it would be proper for the Dáil to have the function of deeming whether it was acting within or outside its jurisdiction. That would be a most unhealthy constitutional departure and not one to which we should give our support.
It does not focus on what was surprising about the Supreme Court decision. What is surprising is not the fact that the court disagreed with the actions of the Executive. That has happened before. What is surprising is that in the past the Supreme Court said it was not its function to seek to control the actions of the Executive unless the constitutional rights of an individual citizen were affected. The amendment drafted by the PDs would exclude the courts altogether in the area of foreign policy even in cases where the individual constitutional rights of the citizen would be affected. That is a significant weakeness in the approach taken by the Progressive Democrats.
In seeking the same objective, to ensure that our conduct of foreign policy is not unduly fettered and that our Ministers for Foreign Affairs can act with the same confidence and authority as any of their colleagues around the conference table, we have adopted a somewhat different approach. We have drawn on the language of the Constitution itself to indicate what is and what is not the proper function of the courts. We say that the courts should not have jurisdiction to question the validity of an international agreement save in two circumstances. First, the courts have responsibility to consider whether the due processes have taken place; has the matter been laid before the Dáil and has it been ratified by the Dáil, whichever was required in the particular situation? Secondly, we believe there is a proper role for the courts where it is contended by an individual citizen that one of his personal rights under Articles 40 to 44 had been infringed. In those circumstances it seems entirely proper that the High Court, and if necessary on appeal, the Supreme Court, should enter into an investigation of the import of the treaty to say whether in fact there had been an actual or apprehended breach of the constitutional rights of a citizen. Our amendment says to the courts that they do not have a function in relation to the validity of treaties save in those two circumstances: (1) to determine whether proper procedures were followed, (2) to determine whether the constitutional rights of an individual citizen were in jeopardy.
Some of the rights involved are rather odd — women not working in the home.
Deputy McDowell will have to realise that if he thinks it is appropriate for him to interrupt, then he cannot look for the protection of the Chair, apart from the fact that it is not the correct thing to do.
It is really a question of principle and the House has to make a choice whether to go with the minimalist approach taken by the Government, or whether it is prepared to tackle the root problems which have emerged as a result of the Supreme Court decision. At this stage we appeal to the Government to take their courage in their hands. They have publicly made clear that they accept the validity of the arguments being put. That was implicit in the Taoiseach's speech on Second Stage. The Tánaiste on radio and subsequently reported in theIrish Independent indicated that he accepted that there were problems or there could be problems in this area. All that has to be established is that there could be problems in this area. The Tánaiste last night in closing Second Stage indicated that he accepted there could be substance in the fears that have been expressed in this House. He did not necessarily say that any of the treaties that had been impugned here would fall, nor could one expect him to, but that there could be substance to the fears. During the two days we have been discussing Second Stage a whole series of international obligations undertaken by the State have been called into question. It is quite improper of us as legislators to allow that situation to continue unnecessarily. That is the key question. Is it necessary to settle for something less than what we all believe to be the proper approach? In urging that we should, the Taoiseach put forward two arguments. First, there is a question of time, that we had a responsibility to our partners to get this matter sorted out as fast as possible.
What amendment is the Deputy discussing?
Amendments Nos. 1 and 9 and the relative merits of those two amendments. It does not take any longer to put before the people the wording of amendment No. 1 or, as I would wish, the wording of amendment No. 9. There are no greater complexities involved. There is no substance in the argument that somehow or other we would be letting our partners down in not being responsive enough to the particular needs of the situation if we try to solve all of the problems that we now see existing. The second argument that was put was that this would be divisive. All that is sought is to restore to the Government the power that everybody believed they had in the first place. How can that be divisive? How can it be divisive to suggest that in 1987 the Oireachtas and Government should have a function in relation to foreign policy that the framer of the Constitution gave it in 1937? That cannot be the case. What is the case is that the Government, perhaps understandably, reacted in a degree of shock to the Supreme Court decision, their thought was to produce something as fast as possible, and they produced an amendment. They should not be too proud to accept that their amendment has been shown to be inadequate, that there is a better way, to use the much abused phrase. The better way is to try to restore to Government and the Oireachtas authority in foreign policy. There are a series of amendments before the House which seek to do that. There are amendments in the name of the Progressive Democrats, the Labour Party and our amendment, No. 9. What combination of those three we decide upon, we can decide later. At this stage it is a question of courage, the Government having the courage to say "Yes, we did not come forward with the best possible approach." No one is going to make a big deal about that. The Government were acting under pressure. They need courage to go to the people with an amendment that addresses the real problems that we now know exist.
Where is the courage of Fine Gael?
I wish to deal with the points raised. Article 29.4.2º and 29.4.3º are the relevant provisions in the context of this discussion in the House. They set out the basic role of the democratic Government, the Executive power of the State in regard to the conduct of external relations. The Government are placed centrally in the situation with Dáil Éireann placed centrally in the subsequent Article 29.5.1º
Every international agreement to which the State becomes a party shall be laid before Dáil Éireann.
The problem with the Supreme Court decision which has been little adverted to here, is that Article 6 has been brought into the situation in two of the major judgments by Mr. Justice Henchy and Mr. Justice Walsh. Article 6 states:
All powers of government, legislative, executive and judicial, derive, under God, from the people,
and Article 6.2
These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.
One of the organs of State is the Supreme Court. There has been a very interesting discussion, but it has not been sufficiently in depth to examine in a very close and detailed manner the full implications of both the Henchy and the Walsh judgments on how Article 6 and the Articles relating to the establishment of the Supreme Court relate to the Executive power in regard to the conduct of foreign affairs given to the democratically elected Government and the Dáil under Article 29. That is the kernel of the difficulties in dealing with this matter and that is why I suggest the matter is far more complex and far more detailed than a superficial view of this matter might indicate. I believe this matter should be rectified and clarified. However it would require very close and careful examination, which can be done at a subsequent date. I go along with the importance of clarifying these aspects and restoring what is basically the spirit and intention of Article 29, in which the conduct of foreign affairs lies squarely with the Government and is a matter of Executive power exercised by the Government and subsequently to be examined by Dáil Éireann. That is why I regard Article 29 as a central article and to the extent that other speakers have said that, I agree with them. The majority judgment of the Supreme Court raises nuances and complexities in regard to the interpretation of Article 29, which is the interpretation held by most people in this House, and certainly by those who have spoken here this morning. The majority judgment of the Supreme Court goes beyond the point of view expressed here by both Deputies McDowell and Birmingham in regard to their interpretation of Article 29 which I agree is largely subject to nuance. That is my interpretation of Article 29 as well, but the Supreme Court has found otherwise and the only way that can be rectified is by going to the people. That means devising a referendum that the people will carry. Thank goodness the referendum process is also written in in a later article of the Constitution and the final position of the people to rectify matters of that kind is enshrined in the Constitution.
Now there is a Single European Act in place ready to be ratified. It can be ratified in effect only by the people in a referendum and we want to see it ratified as quickly as possible. That is both a political decision and a constitutional decision. Any rushed submission to the people seeking to deal with some of the complexities that emerged from the Supreme Court judgment would be highly dangerous terrain at present. One could easily get into further conflict with the Supreme Court. We want to have a very competent, close, detailed examination on an all party basis of the precise implications of the Supreme Court judgment, the exigencies of the operation of foreign policy by the State as envisaged by Article 29, the need to restore the central position of Article 29 in regard to the conduct of international affairs and all of that area, which is going to take some time. Many of the amendments put down here would be appropriate to that type of detailed discussion, but I am saying to the House in as reasonable a way as I can that we have to ask the people to pass an amendment that will incorporate the Single European Act into our Constitution as already the Treaties of Rome have been incorporated, and in particular that that part of the Single European Act, Title III, relating to the formalisation of what has been heretofore a spirit of co-operation, be incorporated and that the people be fully informed and made aware that in no way does Title III impinge on or infringe our policy of military neutrality. That has never been called into question by our partners since we joined the EC and is not called into question in any way by Title III of the Single European Act. The rest of the Single European Act is essential in the way of a single internal market in order to secure the sort of economic progress, the economic and social cohesion which will enable us to pursue our national interest objectives and secure the benefits that will obtain by way of a large transfer of resources. That is the imperative policy so far as a country like Ireland is concerned, in reducing regional disparities and ensuring that growth in the economic sense is balanced as quickly as possible throughout the Community. That was written into the preamble of one of the Treaties of Rome to which we subscribed in 1972 and is incorporated further under the heading I have mentioned of economic and social cohesion. We want that to go ahead side by side with the creation of the internal European market so that we have not alone a market availability with no impediment existing within the whole Community which should be and should continue to be of benefit to us in the way of increasing Ireland's attractiveness as a location for non-Community industry here catering for that market. But with that there will be financial facilities to ensure that, whether by way of loan or direct transfer or by way of grant through the Community directly or through agencies of the Community such as the European Investment Bank, moneys are made available to reduce the disparities that undoubtedly exist here in Ireland and in some other parts of the Communityvisà-vis the more central parts of the Community.
I do not think anybody here would dispute that aspect, but it is important to ratify this Act in order to ensure that we are in a position to bargain and negotiate our position along the lines I have mentioned. I want to say here, as the French say, that we cannot have our cake and eat it or have the Communityà la carte. We cannot pick and choose. We will derive the full benefits from Community membership only if we go along with all our partners who have reached a decision in this matter to ratify an Act which we are satisfied under close examination does not affect us in regard to two important matters. They are our military neutrality policy and the question of having an economic and social cohesion policy that will enable a rising transfer of resources here side by side or pari passu with the growth of a single internal market. All of this makes it imperative, in view of the fact that all our Community partners have now ratified the Act, that we discharge our direct national obligations arising out of Community membership to ratify this Act as quickly as possible. That is imperative at present from the national interest aspect. That must involve a referendum process. It must involve people in effect ratifying the Act now that the full procedure of the courts, the Legislature and the Executive has been spent, as it were. The matter now rests securely with the people under the appropriate article of the Constitution.
There are two requirements here. First, we are under a serious obligation nationally to ratify this Act as quickly as possible. In order to do that the people must decide. In order to ensure that the people decide in a clear, untrammelled and unfettered way, there should be as little confusion as possible. There are other complexities of which we are all aware. To introduce those complexities on this issue would add further to the confusion and act as an impediment to a clear, unequivocal and unambiguous consideration by the people of the net issue that is at stake which is whether we ratify the Single European Act. To do that would border on the irresponsible. To run any risk of confusion that might cause difficulty in having the referendum passed might reduce the numbers supporting a positive decision in the referendum. To adopt any measure, amendment or addendum to what the Government propose would run risks in that direction that are not warranted when one has regard to our essential national interest at present.
That in a few words is the reasoning behind the Government's decision to put a precise tight amendment, which is unequivocal and carries no confusion, to the people for their authorisation to enable the Single European Act to be ratified by the people and nothing else that might muddy the water or confuse the issue. If we can get an all party committee going to look over the whole range of complex issues which have been raised by the Supreme Court——
Will it be confined to this aspect of the Constitution?
It will be confined to the central matter of Article 29 which is the serious aspect that has been raised by the Supreme Court. The central position of the conduct of international affairs by the Government, as the executive authority of the State, is the matter that has to be teased out, and it will require some teasing out. When you examine the two major Supreme Court judgments — the Henchey judgment and the Walsh judgment — it will not be an easy matter but it can be done and it will have to be done. That is a job for very detailed and fairly urgent consideration. I submit that the priority is to get the Act ratified, to get the people to a position of considering it, put the arguments to the people in a constructive and responsible way so that they are under no misconception as to what it is all about.
It is about adding the Single European Act, in the national interest, to the existing Communities legislation which they adopted in 1972, to add to that the Single European Act and that will enable us to go ahead with our Community policies and proceed to maximise them in the national interest. Side by side with that we can get along on an all party committee basis with the very real difficulties in regard to Article 29 that have been posed by the Supreme Court and particularly the invocation by the Supreme Court of what is essentially an aspirational article, Article 6 as in some way governing Article 29. That is a matter that will be difficult enough of resolution and is one I feel strongly that we should not get into at this stage. That is a task for another day.
There are two amendments on the Order Paper in my name and in the names of other members of The Workers' Party. One is an amendment to the Referendum (Amendment) Bill, 1987 which is being discussed with the Tenth Amendment of the Constitution Bill, 1987.
I indicated to Deputy De Rossa earlier that all amendments were being taken together and he could speak to his amendments in the general discussion.
Is the Deputy moving another amendment?
All amendments are being taken for discussion together. That is the order of the House.
I have moved an amendment. Can a vote be taken on it now?
The Deputy must appreciate that no vote can be taken now. In respect of the order of the House no vote will be taken until 4 o'clock.
With respect what was agreed was that it could be moved.
With further respect what was agreed was that all amendments would be taken together and all amendments would be put at 4 o'clock. That is the order of the House.
My understanding was that——
The order of the House is that all amendments be considered together and that the proceedings thereon shall be brought to a conclusion at 4 p.m. in accordance with the resolution of the House on 22 April 1987.
With respect that does not imply that they cannot be voted on if the House so desires.
On a point of order, if you look to the Order of the House yesterday you will see that what was contemplated there was that at 4 p.m. today the proceedings if not previously concluded would be brought to a close by the putting of a question from the Chair.
I was listening to the discussion this morning and I was a party to the order of the House. I am giving what has been decided and what the order is. The question that was put and on which Deputies voted was that all amendments be considered together and that the proceedings thereon shall be brought to a conclusion at 4 p.m. in accordance with the resolution of the House.
But the resolution of the House merely contemplated that the 4 o'clock guillotine would only arise if some of those amendments had not earlier been disposed of.
My understanding is that the new order this morning changes what was already there and the new order before you now is that there will be no vote on any amendment until 4 o'clock.
The Ceann Comhairle indicated that if the House wished to provide time for votes that earlier votes could take place on individual amendments. Unless I am very mistaken he indicated that——
Before the question was put and in the general discussion he may have indicated that that would be possible. I am here interpreting and ruling on what was finally agreed in the order of the House. I would be criticising Deputies for repetition but if the House will bear with me I will repeat what the order is: That all amendments be considered together and that the proceedings thereon on all amendments shall be brought to a conclusion at 4 p.m.
Does it follow from that if I now moved that the question I have put to the House — I moved an amendment——
The Deputy would be out of order in moving that a separate question on that be put.
The situation is that I am moving an amendment but my amendment cannot be decided.
Until 4 o'clock.
A vote will be taken on my amendment, and on another Bill — Deputy De Rossa wants a totally different Bill about what will appear on voting cards on referendum day — and the same vote decides both issues.
The time to have all this teased out was when the discussion was taking place, notpost factum. I must rule on what has already been decided. I cannot order the order of the House to accommodate the Deputy or anybody else.
I urge you that it would not be out of order if I now moved that the question I have proposed be put. Otherwise there is no point in proposing amendments.
The Deputy must accept that it would be completely out of order if I were to so decide. I am calling Deputy De Rossa.
There was some debate on that issue on the Order of Business this morning and there was a vote on it. Unfortunately those who are criticising it now voted for it.
There are two amendments in my own name and the names of other Workers' Party Deputies, one on the Referendum (Amendment) Bill, 1987, which deals with the actual running of the referendum and the issuing of polling cards to electors. There has been some indication here that that is not considered to be of very much importance. In view of the fact that we are putting a major issue to the people, asking for their decision on the question of the Single European Act, we should at least tell them on the polling cards which are being distributed, and which for many of them will be the only information they will get on the matter, why this matter has arisen. The amendment we are proposing is that we should add to the polling card prior to the statement that the Supreme Court, in a judgment delivered on 9 April 1987, found that Title III of the Single European Act relating to foreign policy matters did not conform to the requirements of the Constitution. It is important that that information be included on the polling cards. We have already seen from the debate yesterday and today that the question of the wider implications of that Supreme Court decision is gaining dominance.
On a point of information, may I ask if there is a quorum?
I am sure the Deputy is asking me under Standing Order 19, to count the number of Deputies present. It would seem that there are not 20 Members present.
Notice taken that 20 Members were not present; House counted and 20 Members being present,
I was saying that the question of the wider implications of the Supreme Court decision gained some dominance in the debate yesterday and also so far today. There is very little doubt that that will be carried over into the referendum campaign. There is no provision in the referendum Bill to provide for free postage for those who are either supporting or opposing the referendum. Possibly in many cases and in many parts of the country the only non-partisan piece of information which the electorate will get will be the polling card.
The statement which will appear on the polling card will be:
The Tenth Amendment of the Constitution Bill, 1987, proposes to enable the State to ratify the Single European Act by inserting the sentence here following into subsection 3º of section 4 of Article 29 of the Constitution after the first sentence:
It then goes on to give the statement with regard to the ratification of the Single European Act. I am proposing that prior to that statement there would also be a statement to the effect that the Supreme Court, in a judgment delivered on 9 April 1987, found that Title III of the Single European Act relating to foreign policy matters did not conform to the requirements of the Constitution.
It is only fair that the electorate be given an opportunity to have that information and to understand precisely why they are being asked, in a referendum, to deal with the Single European Act. There is some indication that people are arguing that it is only a matter of formality and is not a matter of great importance in relation to the actual contents of the Single European Act. The dominant issue to date in this House, at any rate, is the question of the wider implications. As I know from the other amendments which The Workers' Party have put down, we consider that there are wider implications. Those implications arise from the Single European Act itself. I would urge the Minister to indicate whether he would be willing to accept that amendment. It is a question of clarifying the matter for the electorate by giving them the information they require. It may be the only information they will get.
In the other amendment to the Tenth Amendment of the Constitution Bill itself, that is, amendment No. 5, we are proposing that the ratification of the Single European Act be subject to certain qualifications. This is an amendment of the wording of the Government proposal and we propose that this amendment, too, be put before the people. It would go into the Constitution along with the Government's wording. The qualifications involved are:
(1) Ireland may not participate in any military alliance, and
(2) Ratification of the Single European Act shall not be deemed to inhibit the State from pursuing an independent foreign policy.
It is clear from the debate so far, and this is obvious to anybody who has followed it, that the basis of the Supreme Court decision was that the Single European Act, Title III, was in contravention of the Constitution precisely because it did limit the Government in their pursuit of an independent foreign policy. The opportunity should be taken to ensure that in the ratification of the Single European Act, if the people agree to that, the Government retain their freedom. Also, the opportunity should be taken to put into the Constitution a statement with which all the parties in this House have indicated they agree, that is, the maintenance of military neutrality.
People who have listened to my contributions on this matter will be aware that I consider neutrality to be a much wider concept than simple non-involvement in military alliances. It is an aspect of that concept. I have not yet heard one speaker from any side of the House oppose the idea that we should remain outside of military alliances. It would put the question beyond doubt if our amendment were accepted. It is an opportunity that should not be missed.
Amendment No. 6 reads as follows:
In Part I, page 4, line 28, after "do dhaingniú", to insert the following:
"agus ní laghdóchaidh an daingniú san taobhú na hÉireann le beartas eachtrach neamh-spleadhach gan bheith ina comhalta d'aon chomhghuaillíocht mhíleata.", and
in Part II, page 6, line 5 after "February 1986)", to insert the following:
"and such ratification shall not diminish the adherence of Ireland to an independent foreign policy outside membership of any military alliance.".
This amendment has the distinction of being the only one of three Labour Party amendments ruled as permissible by the Ceann Comhairle prior to the Order of Business this morning. I do not propose to discuss the amendments which were ruled out of order in the context of today's discussions as we could more wisely spend our time addressing the amendments which have been ruled as being admissible.
I am surprised that the Government are not prepared to accept this amendment. My surprise arises from recent events and from past events. I have studied much of what has been said by Mr. de Valera, a former Fianna Fáil Taoiseach, who devised our policy on neutrality for both pragmatic and political reasons back in 1939. I recall the many statements made by the present Taoiseach, when Leader of the Opposition and also statements made by many of his colleagues down through the years. While there is a certain merit in what has been said during the last few days by Government speakers in relation to adopting the narrow view of this amendment and seeking to clarify in the tightest possible manner the impasse which has occurred as a result of the Supreme Court judgment, we should also avail of this opportunity to clarify our position. From the point of view of party policy and of consistency, the Government must be having extreme difficulty rationalising for themselves and their supporters why they will not accept the amendment proposed by the Labour Party which is similar to amendment No. 5 on the Order Paper today. I was somewhat alarmed to hear the Minister in his last contribution say that there was no interference with our neutrality and that nothing impinged on our neutrality arising from the Supreme Court judgment. I would direct the Minister's attention to Judge Walsh's judgment where he says at page 17:
In touching upon the maintenance of the technological and industrial conditions necessary for security the Treaty impinges upon the State's economic, industrial and defence policies.
There is always danger in quoting selectively and I am not attempting to do so in quoting that sentence from Justice Walsh's judgment. I merely want the Minister to respond to my point. How can the Minister stand up in this House and say the judgments do not in any way impinge on our policy of neutrality?
That is not the judgment, Deputy.
This point must be addressed. The Government have an obligation not just to the House but to the State to clarify the judgments handed down from the Supreme Court.
In relation to the declaration which the Government propose to lodge somewhere, at some time, they might as well lodge the sporting results with theSporting Press because it has no standing and it will not have any standing. I would like some clarification from the Minister as to what legal advice the Attorney General has proffered on the value and the rationale behind lodging a declaration with the ratification of the Single European Act. From information and advice I have it will have no significance as an instrument. It does not have a place in international law. Whereas the other countries have formal agreements, formal declarations annexed to their ratifications, this proposal by the Government is a unilateral proposal without consultation or discussion, certainly without agreement from the European partners who will not be in any way bound by it.
Our amendment gives the House an opportunity to put before the people a very straightforward clarification of our position on neutrality, something about which we have all spoken from time to time, although I am not quite sure of the Fine Gael position on neutrality. We would need some guidance from the Leader of Fine Gael. This morning, on the airwaves he certainly did not agree with the views put forward yesterday by Deputy Kelly in one of his flights of fancy in this House. I certainly reject a lot of what Deputy Kelly said yesterday in impugning the bona fides of those of us who want neutrality enshrined in our Constitution. Whether or not that suits Deputy Kelly's clientele, we intend to pursue our policy of wanting an independent foreign policy outside of membership of any military alliances enshrined in the Constitution. I do not make any apologies for pursuing that policy because at a time when the superpowers are building and strengthening their nuclear armaments it is important that smaller nations like ourselves would be in a position to arbitrate and act independently in terms of military alignments. We do not need a military alignment, we need positive neutrality as a national policy.
In reply to this amendment I would like detailed and specific clarification from the Minister as to why the Government see fit to reject the amendment. This amendment would be broadly welcomed by the people and it would give an opportunity to enshrine our neutrality in our Constitution. I suspect that this will be part of the discussion which will be necessary if the discussions which the Taoiseach offered between the leaders of the parties in this House take place after this referendum. It is unfortunate that these discussions will not take place prior to going to the people with the referendum. It is now practically 100 per cent certain that we will be faced with the cost and inconvenience of at least another referendum, if not more, within the next 12 months. That applies not just in relation to the impingement of our neutrality as a result of the Single European Act but in relation to the other international agreements in which the Minister for Foreign Affairs and the Taoiseach in the course of their international discussions and negotiations are now totally hampered. They will be negotiating with both hands tied behind their backs in any future discussions with our international partners.
In moving my amendment I seek clarification of a point raised already by other Members. I put it to you, Sir, that our amendment is one of those which, in your ruling earlier this morning, you said was within Standing Orders, was an acceptable one. Despite the narrowness of the issue before us I contend that this amendment is in order, despite the fact that there are other amendments now being discussed which are out of order, have come in by a sort of back door procedure at the request of people who did not understand Standing Orders correctly. I contend, Sir, that I would be perfectly in order, as soon as the Minister for Foreign Affairs has replied, if there are not other speakers offering, in calling on you to put the question in relation to this amendment. I feel I would be perfectly in order in doing so under the provisions of Standing Order No. 58.
I am totally against the Bill but I reluctantly support the amendments of The Workers' Party and/or that just moved by the Labour Party. I do so on the understanding that the Government will not accept any part of them. The reason I do so is that the Bill now before us arises from Title III of the Single European Act being struck down by the Supreme Court, in other words the foreign policy treaty, which is Title III. It has been knocked because — to paraphrase the Supreme Court judgment — it would infringe the sovereignty of the State unless it was ratified by way of referendum since its terms materially qualify the right of the State to say "yes" or "no" in its conduct of foreign affairs, security matters and defence.
In anticipation of this referendum what worries me is that the electorate will be voting blindly. Of course that suits the purpose of those who support the intent of the Bill and the referendum. There has been no information circulated setting out the simple, basic facts of what the referendum will be about. There is no such provision being made by the Government.
I rather doubt whether the simple amendment moved by Deputy De Rossa a short while ago in regard to what might be carried on polling cards will be accepted or inserted. Nor do I hear any response to my request for free postage for those who give of their time and energy to endeavour to put the other side of this question before the electorate for the purposes of the referendum.
What frightens me most is the Minister for Foreign Affairs, of all people, coming into the House a short while ago — in response to what may have been said by speakers yesterday and earlier this morning — and talking about our right of military neutrality never having been called into question. Of course it has not been for the simple reason that to date nobody had any right to call it into question. This is a great way of assuring people that it will not be called into question in the future. When the Spinelli and Dooge reports were going through the European Parliament I said, and am on record, that it was the beginning of the dragging of this country into NATO by the back door. The recommendations of those two reports have now been incorporated in the Single European Act in a much more dangerous form. There is no point in any Minister or any other speaker attempting to tell us that because our military neutrality was not called into question in the past that constitutes an assurance under the new order of things if the Single European Act is ratified. It cannot be contended that our military neutrality will not then be called into question because we will have no defence in any such calling into question as we have at present.
It is unfair and misleading to say, as the Minister also said, that the Single European Act is required to be ratified in order to advance progress within the EC to enable moneys to be transferred to reduce disparities existing between ourselves, regions like ours, and better off places. That is not true. The provisions of this Bill will not do anything that cannot be done at present. Since the budgetary provisions of the great powers are insufficient — they having refused to make adequate budgetary provisions in recent years — what is the point in making provision for transferring moneys they have not got? Therefore, that sort of misleading information in favour of the amendment being passed and the Single European Act being ratified, is the very antithesis of what a referendum should be on a matter as important as this.
The Minister said also that it would put us in a position of being able to bargain. We are at present in a position to bargain. If we are not satisfied with our bargaining, in the last analysis, we are able to use the veto or unanimity clause within the Treaty of Rome. We shall not be able to bargain in that way in the future. We shall not have that weapon in our hands to ensure that, small country though we are, we will be listened to. We must be listened to at present but in the future we will not be. Nobody should believe that the large nations of the Community are benefactors to all of us littler ones, that there is nothing in it for them. It is the large nations of the Community who, time and again, have shown their nationalism, in a way we seem to be afraid of, in their national interests. Therefore, with whom are we dealing? Into whose hands are we putting ourselves by proceeding with this, particularly in relation to foreign affairs, which provision was struck down by the Supreme Court because it does restrict our right to say "yes" or "no"? In accordance with our Constitution we have that right at present but, after the referendum, we shall not have that right except in a very qualified form.
If I could believe what is being presented by the Government then I could appeal to them to amend this Bill to enable us to ensure that no international agreements would be signed or concluded by any Government in the future without first presenting a draft thereof to the Houses of the Oireachtas. Instead of that we now sign them, come back with afait accompli, and whoever may be in Government is pushed into the lobbies and the appropriate legislation passed. That is not democracy. Certainly it does not conform to our Constitution even though there is no such written provision therein.
I should reiterate that we are not in any way compelled, nor is there a direct national obligation on us to ratify the Single European Act. We have the freedom not to do so. Until matters have been sorted out we should not ratify it. But, once we have ratified it no longer shall we count in the Councils of the Community, in the Commission, in the Council of Ministers, not even in the Parliament. We, as a small country, will not count. We have had our rights; we are now handing them over. We did not do a great job for ourselves with those rights because we have been too inferiority-ridden, too concerned with being good Europeans and being seen to be such. We will pander to them and hope the crumbs from the rich man's table may come our way in the future at their dispensation not because we have any right to them but in order to keep us quiet and in order to be seen to be doing the right thing by the poor relations. That is the way we will be dealt with.
As I said earlier, we will be more and more on the international dole rather than removing the disparities which the Minister said the Single European Act will enable us to do. If we could not do it up to now, we will not be able to do it then. Nationally too many people are on the dole at present, but internationally we will be the dole recipients of the future as a result of going to the country to seek the passage of a referendum on the blind by our electorate. I say "on the blind" because not only will the people not be given a fair interpretation and presentation of what is involved in the Single Europe Act, but they will be given half truths, glib and inaccurate statements such as we have listened to today. These are the things that will no doubt be given positive coverage by the media. I appeal to the Government to ask RTE to give as fair a hearing and as fair a distribution of cover on radio and television to those who expound the view against the Single Europe Act as that which will be given and is being given by the media to those who are expounding the view that it should be passed, that it is a good thing and that it will not interfere with our neutrality or with anything of that nature, whereas that is untrue.
I want to bring to the attention of the House that what I stated yesterday evening was confirmed by the lack of mention that there was an anti-Single European Act view expressed forcibly here yesterday evening. No cover of any consequence was given to it. I tell the people in the media that this is just not good enough. I appeal again to the Government, to this House and to you, a Cheann Comhairle, as the person who represents all of us, to use your good influences to ensure that the national media give fair coverage to the pros and cons of this whole issue as it goes to the people because they will not be supplied through the major parties with any fair or impartial outline of what is contained in the Act.
In view of this deliberate taking on the blind of a referendum on a most important issue for the future, I would like to know whether the manner of taking the referendum, the presentation of the ballot paper and that which it contains can be challenged in our courts. This is a fundamental issue. I would like to think it can be challenged in the courts although, judging by the manner in which it will be presented, it looks as though we do not have that right. Worse still, if such a right exists, our Government are ignoring the possibility that they have anybody who can say "thus far and no further may you go". That is a question to which we probably will not get an answer from anybody in the House. On the other hand, we may get an answer to it from some of our legal luminaries, many of whom are not in favour of it because they read correctly that what we are doing is wrong. All the talk from this Government and the last one will not make the Single European Act acceptable. Nor will it improve our lot in the future. Rather will it be a case of disimprovement and it will put us outside the pale in so far as being able to protect ourselves is concerned.
With all due respect to one of the speakers on the Fine Gael front bench who spoke earlier today, if being against ratification of the Single Europe Act is criminal irresponsibility then I plead guilty and will continue to do so until the referendum has been held. I hope the Irish people will not be gulled by the sort of talk we heard before Christmas when the Bill was before the House and now on this Bill into accepting something that is the death knell of our possibility for progress within the EC in the future.
First of all, I wish to reassure Deputy Blaney that I was not——
I offered before Deputy Birmingham.
The question was raised by Deputy Spring about the moving of amendments. Can you clarify the position on that?
That issue has been made clear from the Chair. I merely wish to reiterate the position. In accordance with the Order of the House this morning the question cannot be put individually on any of the amendments as the order provides that all amendments are to be taken together and shall be brought to a conclusion by the putting of one question at 4 o'clock. That was the decision of the House this morning and the Chair is merely administering that decision.
On a point of order, I respectfully point out in that regard that the order of the House as I understood it, and as I think other Members of the House also understood it, was that the final question as set out in the motion that was passed here on Wednesday would be put at 4 o'clock. That is, that all outstanding questions would be put as one but that only amendments in the name of a member of the Government would be included in that question, in other words, that only Government amendments be made. I did not support the motion that was passed this morning because I did not like it and I thought it was wrong. It was not my understanding that it would not be possible to put these individual amendments in the course of the day.
There is no point in having this debate unless these amendments can be put. It seems to be ridiculous that we have Committee Stage with 13 amendments which we are allowed to discuss but we cannot have a decision on any of them. We cannot have that decision at 4 p.m. because none of those 13 amendments is in the name of a member of the Government and therefore none of them can be put. A composite question has to be put, the effect of which I understand is that the Bill do now pass. It is impossible for any of us to put any of these amendments. That is reducing the antiquated procedure and the kind of artificial procedures we have here to a level of absolute farce. Yesterday, the newspapers commented that——
Deputy, this is a very long point of order.
——as Committee Stage was being taken today there would be interesting votes. It was wondered would the Government carry the votes on some of the amendments. We wish to have the votes of those amendments. At 11.15 a.m. Deputy McDowell moved amendment No. 1. I wish to move now, under Standing Order 58, that the question be now put. I ask you to put the question now by way of closure. Amendment No. 1 is the general amendment which covers the points made by a great many speakers in the House in the course of the two-day debate on Second Stage of the Bill.
As a new and inexperienced Member I want to ask if this is not the issue we discussed here this morning? Was the time for talking on this matter not this morning? I can well understand Deputy O'Malley's concern that he should grab headlines but this issue was discussed this morning.
Somebody else is trying to grab headlines.
There was some discussion on this matter this morning, prior to the proposal of the Taoiseach in respect of the amended Order of Business. Many of the points which have been made by Deputy O'Malley were made on that occasion. The position the Chair finds himself in is unambiguous. The motion I put to the House was that all amendments be considered together and that the proceedings thereon be brought to a conclusion at 4 p.m. in accordance with the resolution of the House of 22 April 1987. May I remind the House once again of the contents of that resolution?
The proceedings on the Committee and remaining Stages of the Tenth Amendment of the Constitution Bill, 1987, and of the Referendum (Amendment) Bill, 1987, if not previously concluded shall be brought to a conclusion at 4 p.m. on Friday next by one Question, which shall be put from the Chair and which shall, in relation to amendments, include only amendments set down by the Member in charge of the Bill.
This matter was decided by a clear majority of the House this morning. There is no ambiguity in my mind about the matter. The Deputies may discuss the amendments but the question shall be put at 4 p.m. I cannot, therefore, entertain any amendments, whether they were deemed in order or not in order on a previous occasion.
May I ask you to deal with my motion under Standing Order 58, "That the question be now put"? According to that Standing Order, once the question has been proposed from the Chair either in the Dáil, or in a Committee of the whole Dáil, which we are in now, a Member may claim to move, "That the question be now put",——
I am not assenting to the Deputy's request having regard to the decision of the House this morning. The motion agreed by the House supercedes anything else.
With respect, the terms of Standing Order 58——
I am not going to argue with the Deputy. I have given my ruling and that is the position. The Deputy made many of these points this morning before the vote took place and he was clear about what was happening.
I was well aware of what was happening and I am trying to rescue the position——
The House decided against you, and the Chair is administering the ruling of the House.
Standing Order 58 goes on to say:
And unless it shall appear to the Ceann Comhairle that such a motion is an infringement of the rights of a minority, or that the question has not been adequately discussed, or that the motion is otherwise an abuse of these Standing Orders the question, "That the question be now put", shall be put forthwith, and decided without amendment or debate.
The Chair is adhering to the Order of Business as laid down this morning by a vote of this House. I am not assenting to your proposal.
On which of the three grounds?
The first three words of the section the Deputy has just read into the report.
I wish to protest. We are discussing a number of amendments some of which you have ruled to be in order. Yet, you are telling us they cannot be put. Under Standing Order 58 I want the question put in relation to amendment No. 6. There is no point spending the day here working — and there are very few of us in the Chamber — discussing and debating amendments to the Bill if at the end of the day we do not have an opportunity of finding out the Government's attitude by putting the amendments to a vote. Since you ruled amendment No. 6 to be admissible, the House should be entitled to decide on it. I want that question put now. It will be pointless to contribute to this very important debate which will lead to a referendum on an aspect of our Constitution if the fundamental question set out in amendment No. 6 is not put to the House at this time. I am sure we can discuss these matters until 4 p.m. but these questions will not be put and we will not know if there is a majority or a minority of Members in favour of amendment No. 6. I put it to you, Sir, that under Standing Order 58, the question should be put.
Whatever is in the Standing Order is superseded by the decision taken by this House this morning. I repeat: In accordance with the order of the House this morning the question cannot be put individually on any of the amendments as the order provides that all the amendments are to be taken together and are to be brought to a conclusion by the putting of one question at 4 p.m.
But that question will not include any of the 13 amendments——
I do not recall any mention being made in the discussion between the Taoiseach and the Leaders of the Opposition parties to the fact that questions could not be put individually. If you check the record you will see there was no mention of that.
I do not want to repeat myself, but the Order of the House proposes that one question only will be put from the Chair at 4 p.m. today in relation to the amendments. That is the position.
I submit that it is perfectly in order and it is standing practice in this House for one order of the House to supercede another. The order made this morning superceded another order which provided for a different procedure. If the House now decides — and it is for the House to decide — that this question be put, then that is in order. Any question that arises under Standing Order 58 obviously by its nature interferes with an existing order of the House. That is the purpose of a closure motion. Any proposal under Standing Order 58 saying that a question be now put will interfere with an existing order of the House. I submit, with respect, that the motion is in order, that any Member is entitled to put the question and that it is for the House to decide whether the order made this morning stand or be interrupted pursuant to this Standing Order.
Having regard to the clear and unambiguous decision of the House this morning by way of a vote I am not assenting to any such proposition.
I do not wish to prolong this matter but I want briefly and very seriously to say that if we have a Committee Stage on which we can talk but in which none of the 13 amendments can be put for a decision——
That was a decision of this House.
This is a useless and futile talking shop——
The Chair is merely administering that decision.
I ask the Minister for Foreign Affairs to agree to an amendment of the order which was erroneously or foolishly made this morning by a majority decision of the House.
If this House is to have any sense of order we must have regard to the Ceann Comhairle who is charged with the administration of this House. As he said, a clear and unambiguous decision was taken this morning by this House. The Ceann Comhairle is adhering to that decision. In implementing a decision of this House his ruling is paramount and should and must be observed if we are to have any order.
On a point of order, as the only major party which voted against that proposal this morning — with respect to my colleagues in the other political parties — it is impossible for us to discuss the Committee and remaining Stages on the basis of the order made by the House and we would be better off terminating our contributions at this stage and simply voting at 4 o'clock. We have moved amendment No. 6 and it has been duly put to the House by the Leader of the Labour Party. It is our wish that there be a vote on our amendment. Only three of the 13 amendments tabled have been deemed by you, a Cheann Comhairle, to be in order — one from the Progressive Democrats, one from the Labour Party and one from The Workers' Party. Ten are deemed to be out of order yet the Taoiseach, with a sense of mischievous magnanimity, agreed to discuss them all generally. The House agreed to this although we, quite rightly, voted against it.
We wish to have a vote on our amendment because we now have the unique situation where a number of Deputies will be forced at 4 o'clock to vote against the Single European Act because there will only be one vote. The only alternative is to abstain and that is not the manner in which the Tenth Amendment of the Constitution Bill, 1987, should be debated in the House. We strongly feel that there should be an addendum to the instrument of ratification asserting an aspect of independent foreign policy which is an aspirational matter but of considerable importance to our political attitudes. We also used a phrase "outside military alliances" which is of fundamental importance because, as the Minister for Foreign Affairs well knows, there was a proposal in 1981 in the drafting of this treaty which said that there should be meetings between Ministers for Defence. I congratulate the Minister on ensuring that that proposal was taken out in the drafting of this treaty. We are not putting down vexatious amendments, we are tabling them in a coherent and historical context. Now, under the ruling of the House, we are precluded from having a vote on them.
I appreciate the position which the Taoiseach, with all due respect to him, managed to work you into this morning and in the process he captured the Leader of the Fine Gael Party, also. There is now a total impasse in the House where none of the three legitimate amendments can be voted on. We cannot have a vote on Committee or Report Stages. We will have a vote on the Final Stage at 4 o'clock and that will be the end of the constitutional referendum debate. That is not in accordance with the traditions of the House or with Standing Orders. I am at a loss to know what further contributions we can make.
On a point of order——
These points of order must come to a conclusion. It will not alter the view of the Chair that the Chair is simply administering an order of the House made here this morning by a vote in clear, unambiguous terms. Nothing will deter the Chair from adhering to that course. The Chair had other views, mind you.
On a point of order, I wish to ask the Chair to rule, as a matter of general principle, whether it is in order for a majority — whether of one or two parties — at the beginning of any day of a sitting of this House, to totally change the nature of Committee Stage and to render it null. If that is held to be in order today, then Standing Orders of the House mean nothing. I am asking for a general ruling from the Chair as to whether it is in order for a majority party to say to the minority in the House that the rules mean nothing as applied to them.
The House made its decision this morning with its eyes wide open.
I am asking you if you are ruling that in order.
On a point of order, it is my understanding that the 4 o'clock deadline came in only as a "fail safe", that if we had not concluded our business by then, the 4 o'clock deadline would apply. I understood that if all our amendments had been considered by 3 o'clock we could have gone home for the weekend. Equally, I understood that if the House had exhausted itself in discussion on one or more of the amendments the vote would then take place. I wish to remind the House of the situation in which we found ourselves when the gong sounded this morning, that the issue which had dominated the debate over the first two days was to be excluded from discussion. The issue which has agitated most people has been the form of amendment, whether it should be a narrow one or if it should try to address the wider implications of the Supreme Court decision. It has dominated the Second Stage debate and it appeared that we were to be precluded from discussing it because of the nature of the rulings you are obliged to make. It was in those circumstances that the Leader of the Opposition took the initiative and that the Taoiseach, properly, acceded to his request. It is altogether better to have a debate which at least addresses what is central rather than marginal and peripheral issues. Debating a red herring addenda would be a most unsatisfactory way in which to conduct Committee Stage.
That is what the Deputy wants.
If the points of order have been dealt with I should like to return to the substance of the debate.
I asked for a ruling.
The Chair has ruled repeatedly on this matter.
Can I take it that you will not allow any votes before 4 o'clock when one question will be put?
The Chair is adhering to the Order of the House.
This is a futile exercise.
It is a farce.
I regret that some Deputies are departing.
They will not be missed.
I was encouraged by the way the Minister for Foreign Affairs responded to earlier contributions from Deputy McDowell and myself on the central issue, which is whether the amendment to be put before the people should be in broader terms to deal with the cloud that now hangs over our capacity to conduct foreign policy. He was more forthcoming in that regard than he or the Taoiseach had been before in accepting that there appears to be substance to the concerns expressed on this side of the House. I thank him for that and also for his suggestion that an all party committee be set up to look at that question. I am grateful for the fact that he regards it as a matter of urgency. There seems to be very little difference between us. The great majority of Members of the House want to see the Single European Act ratified as soon as possible and they believe that the effect of the Supreme Court decision is to cast doubt on the way in which foreign policy is to be conducted. The question really is if it can be safely and expeditiously handled at this stage. It can be done by a formula such as we suggested in amendment No 9.
Let us consider why we find ourselves in this difficulty. The majority judgment in the Supreme Court ruled that any treaty or international agreement which set out to restrict the Government's pursuit of foreign policy is an interference with the Government's sovereign power in that area. They said in particular that agreed procedures involving consultations as of right would be an interference with that sovereign power. During the course of the Second Stage debate Deputy Peter Barry, the party spokesman on Foreign Affairs, quoted at length from the majority judgment indicating just how all embracing that view could be. A number of Deputies have indicated how serious those implications could be for individual treaties. Time is not on our side so we must ask if we can do something about it here today. We can because, while the Minister says that the reasoning of the Supreme Court is complex — and I agree with him — the route it took to arrive at its conclusion was certainly complex but putting right the effect of the Supreme Court decision is not a complex matter; all that is required is to state that the courts' jurisdiction will be what it has always been believed to be and that it will be the jurisdiction that up to now is the one it has always exercised. Until now, the Supreme Court has constantly stated that it is not the function of the courts to control the Legislature except where constitutional rights of citizens are threatened or infringed.
In the Crotty case no citizen's constitutional rights were threatened, nor was any such claim put forward. But instead, the departure by the Supreme Court in allowing the plaintiff in that case to rely on Articles 1 and 6 of the Constitution is what has led to the present impasse. Amendment No. 9 which we put forward simply seeks to revert to our traditional way of doing things — to say that the conduct of foreign policy is a matter for the Government, subject to this House, and that the function of the Supreme Court and the High Court will be what it traditionally was. The courts' traditional role in relation to foreign policy was to see that due procedures had been fulfilled. They did that in the American extradition case where they refused to order the extradition of a gentleman because the treaty with the American Government has not been brought before this House for ratification. They held that it was a treaty which involved a charge on public funds. That is an area where there is a traditional role for the courts and that traditional role is preserved in our amendment.
One of the major functions of the Supreme Court in recent years has been to vindicate the personal rights of the citizen. It is the function of the court to do so when those personal rights are threatened by acts of the Legislature or put in danger by acts of the Executive. Of course, it is conceivable that at some stage those rights would be challenged by an international agreement to which this State was proposing to become a party. If that was the case and if a citizen was able to establish that his property rights, his right to freedom of religion or whatever, were being put in doubt, of course it would be proper that the High Court should review these matters. We have proposed that in our amendment.
Our amendment is a tidy one. It is simple and clearcut and there is nothing radical about it. There is no suggestion in it of giving any new function to this House or to the Government; all we seek to do is to redefine clearly the role of the Supreme Court. I cannot believe that that can be the cause of controversy Given that the Minister has now accepted that there is a difficulty in relation to Article 29 to which we have to turn our attention, I urge him to look at our amendment and see that it does all that is required. This will avoid the need to consider the interaction of Articles 1 and 6 of the Constitution, what the aspiration is and how they relate to Article 29. This amendment addresses in specific terms the net question of what the function of the courts is in relation to foreign policy and it does so very effectively. I do not believe that that would be a source of controversy.
If the Minister continues to have doubts about the success of such an amendment in the course of the campaign, there is a halfway house which, while clearly inferior to what we propose, is still worthy of consideration. This is that the courts' jurisdiction would not extend to the validity of any international agreement ratified or acceded to before a given date, say, the date on which this legislation goes through the House or the date on which the Supreme Court delivered its judgment in the Crotty case. If there was a feeling — and it seems to me that such a feeling would be entirely misplaced — that there were dangers in allowing the Government and the Oireachtas to act in the future as they have acted in the past, the very least we could do today would be to put beyond doubt the validity of all the treaties into which we have already entered. That would be a worthwhile exercise. It would not be an academic exercise because we have been reminded in the House that at least one treaty of importance to all of us is at present the subject of challenge.
Experience elsewhere shows that once litigation becomes fashionable plaintiffs will turn up to challenge other treaties. It is not inconceivable that people who find the absence of a tariff restriction uncongenial might be disposed to look to our membership of GATT. If the Minister will not go all the way with us, will he at least consider that possibility and take the opportunity of putting all existing treaties beyond doubt? This is very much a second best option. There is nothing new or radical in what we are proposing; all we are asking him to do is to restore thestatus quo and there should be no controversy about that.
I support what Deputy McDowell said this morning in moving amendment No. 1 but I do so with a great deal of regret because I realise that whether I or anyone else supports the amendment or opposes it for that matter this is an entirely futile exercise. We are debating this Bill as though it was a motion on the adjournment on which there was going to be no vote. The amount of time allocated for the Committee, Report and Final Stages of this Bill to amend the Constitution — and this is only the tenth time this has been done in 50 years and therefore, is a matter of considerable importance — is four and three quarter hours. That in itself is bad enough but to do it on the basis that no decisions can be made and no votes can be taken reduces the procedure in this House to a shambles.
It is a matter of great regret that that should be the case. It seems to be ominous from what the Ceann Comhairle has said in reply to Deputies McDowell and Spring and others during the past half an hour, that the Standing Orders of this House no longer count for anything because the whole volume of them can be cast aside by what is described as an order of the House. If the Government of the day have a sufficient majority or if there is a sufficiently pliant main Opposition party to go along with them, they can make an order at the beginning of each day on which this House sits casting everything else aside and enabling things to be done in a particular way for that day. With regard to the recently produced volume on the up to date Standing Orders of Dáil Éireann, a publication that can be purchased at a cost of £4.45 I can tell those who are interested in buying it to save their £4.45 because these Standing Orders are now irrelevant. That is of great significance because the procedures and Standing Orders of this House are whatever a majority of this House on any given morning decide they will be.
I do not think it is good enough for a sovereign parliament to operate its functions in that way and reduce the House to the level it is now at of having a futile debate that can lead to no decision. It would have been my respectful submission that it is the occupant for the time being of the Chair of this House who has the primary duty to try to protect the rights of the Members of the House under the Standing Orders and traditions of the House. It is not part of the tradition of this House that an order be made at the beginning of each sitting day casting aside all the procedures and the Standing Orders.
I hope people will read this so-called Committee Stage debate on this amendment to the Constitution of Ireland and see that it is impossible to move any amendment — either those that were ruled in order or the ones that were not but which it was agreed we could discuss this morning — that no decision can be made, that only one vote is allowed and that that vote is whether this Bill, as read a Second Time last night, should be read a Fifth Time this evening. I and my party as well as Deputy Spring and Deputy De Rossa and many other Deputies in this House are in the position where we cannot have decisions of this House on amendments in our names. Though Deputy Spring and I both moved the closure under Standing Order 58 and asked that the question be put we are told that Standing Orders do not apply because an order of the House was made that there will be one vote only today. If, say, somebody becomes rowdy and is asked to leave the House but refuses to do so, am I to take it that, because of the order which was made this morning, we cannot have a vote on whether he should be forced to leave? Are we reducing ourselves to the level of reasoning that we sometimes accuse some members of the Supreme Court of applying?
Is this institution not underlining its own futility here today in the way it is conducting its affairs? If this Bill were about some minor activity in the country that needed regulation by statute it would be bad enough, but this is about our fundamental law and not alone is it about our fundamental law, this Bill is also very much about the fundamental law of the European Communities the population of which is 320 million people to each of whom we owe a certain duty. Our primary duty is to the Irish people but as a member of the European Communities we owe a duty also to the Governments, the Parliaments and populations of the 11 other member states of the Communities.
One of the ways in which we could fulfil that duty, if we see it incumbent upon ourselves to do so, would be to accept or enact an amendment on the lines set out in amendments Nos. 1 and 4 in the names of Deputies Kennedy, McDowell and myself which would enable this State to carry on its foreign affairs and foreign relations in a manner that is normal among western democracies in Europe. We are, by refusing to decide on that amendment, refusing to put ourselves back in the position we thought we were in until 9 April of having the same powers as a Government and as a Parliament as every other sovereign country in the Communities. We are putting the other 11 member states in the position where they will not be able to deal with someone on a basis where unanimity is essential when that 12th member is voluntarily choosing to remain under the constitutional infirmity that we suffer from today as a result of the decision in the Crotty case.
We are not even allowing ourselves as a Parliament to decide whether or not we want to be that way. We are precluding ourselves from even making a decision on it. As I said on Second Stage, it would be ridiculous, unfair and intolerable to put our fellow member states of the Community in the position that they had to deal with a country that chose to remain under this infirmity. But we are choosing now, not because we have made a substantive decision, but because we have made some kind of procedural decision through the back door to prevent ourselves even making a decision. To what level can one reduce the farce that has entered into this now?
I think it is very disturbing, Sir. I wonder what is the point of arguing for the matter any longer because it cannot be decided on anyway. If I or someone else here was the most eloquent orator in the world and made the most eloquent case in support of this amendment and got 160 people in this House hanging on my very words and anxious to agree with me and to go through the lobbies, that still cannot do it. We have emasculated ourselves and effectively we have torn up the Standing Orders of this House. We have reduced its procedure to a farce.
I was known as someone who used to be critical of the courts and their procedures and I spoke on one or two occasions about trying to drag the courts screaming and kicking into the 20th century. Indeed, at times it was even suggested that they might be dragged screaming and kicking into the 19th century. But the courts, whatever about their procedural and other faults, have nothing on the circus that we are part of here today, absolutely nothing. The courts are a modern and efficient institution by comparison with the form of legislative self-emasculation that goes on in this House.
Four and three quarter hours have been devoted to the Committee, Report and Final Stages of a Bill to amend the Constitution because of a serious effect the Act has had in this country and because of a serious effect it has had in the other 11 member states, all of whom are held up as a result of it. This is the debate we have, a debate in which we are now told we are precluded from making any decision. You tell us, Sir, that a vote will be held at 4 p.m. on one single question. That question apparently is going to amount in effect to whether or not——
That is what this House decided.
I am well aware, Sir, that that unfortunately is what this House decided. That vote is on whether or not this Bill as it now stands passes. I regard this Bill as doing about 10 per cent, perhaps 15 per cent of what it should do. I am not going to vote against it doing that much, but it is absolutely regrettable that we are not even given the opportunity to decide by way of a vote whether or not that Bill should do any more. It astounds me, as it must many people, to find ourselves in the situation we are now in. The fact that the House decided it does not seem to be any consolation for what is, and what everyone knows to be, the ridiculous position we are in today. We even have three amendments which were not ruled out of order. Apparently, even those three amendments cannot now be voted on.
The provisions of Standing Order No. 58 are, quite wrongly, being totally ignored. The grounds which are set out there have not been given as the reason for the non-acceptance of a closure motion. It now seems that the procedure of this House will be decided by a motion each morning that it sits and that we can forget about normal procedures. I wonder could we get the courts or somebody else, of whom in the past I confess to have been critical, to try to get us to put our House in order. If we do not do it——
The Chair is paramount to Standing Order No. 58.
It has nothing to do with the Chair. The Chair has told me several times that it is not his decision but that it is an order of the House. It is not his decision.
He is implementing the order of the House as Chairman of the House. It is quite clear.
For what it is worth, and it is worth very little because it cannot lead to anything in this House between now and 4 o'clock, I would say that amendment No. 1 in the names of my colleagues and myself is designed to try to overcome the difficulties that have been created by the Crotty decision, only part of which relates to the Single European Act and its non-ratification but which has much wider and more complex ramifications. Having given it a good deal of thought, we think it is necessary to make the necessary amendment in three parts but as one amendment.
Article 29.4 needs amendment in three places to put beyond doubt the problems which have arisen as well as allowing for the ratification of the Single European Act itself. It is designed to give the Government the power to enter into international treaties touching on matters of foreign affairs which will bind the State, in other words, to give the Government the power everyone imagined they had prior to 9 April. Without it, it is quite conceivable that many important agreements to which this country is a party may well be set aside by a constitutional challenge and even amendments to the Treaty of Rome will not have any constitutional immunity under the existing Article 29 of the Constitution. The first part of the amendment refers to section 4 (1) while the second part is necessary to prevent a challenge to any future amendment to the Treaty of Rome on the ground that it violated the essential scope of that treaty. It is necessary in order to safeguard all previous amendments to the treaties since 1973 and to prevent the possibility of a referendum on every occasion of an amendment to the treaties.
We are committing ourselves now, apparently, to a series of referenda and we could avoid that by the acceptance of this amendment. The Minister for Foreign Affairs agreed on the radio — I did not hear him but the information was conveyed to me by many people — that there was now a likelihood of there having to be quite a number of referenda held. Is that desirable? Is it fair to the country, or to the 11 member states who have to deal with us, that everything that is decided in the European Community must now be on the basis of going ahead subject to a referendum being held in Ireland, even on relatively simple matters?
The third part of the amendment seeks to abolish the requirement that EC treaties, legislation, orders, directives and so on should be "necessitated by the obligations of membership". It gives the Dáil, rather than the courts, power to decide whether we should, for example, ratify an amendment to the Treaty of Rome. The judgment in the Crotty case has put in doubt many of the EC directives which have been implemented by ministerial order and has raised questions in relation to our adherence to Community treaties which were not strictly a legal obligation of membership. Of course, the court can do that again in the future. Unless we want a referendum on each occasion that a new amendment to the Treaty of Rome is about to be ratified a broader amendment on the lines I am proposing, and as set out in Nos. 1 and 4, will have to be agreed. Everybody, including the members of the Government, knows perfectly well that a broader amendment of that type is necessary to avoid all these problems.
These are not just problems that the Irish are self-inflicting; we have a wider responsibility because we are also inflicting on 320 million other non-Irish people the consequences of the constitutional infirmities which we suffer from and which, as a result of what is going on here today we are voluntarily choosing to suffer. That is deplorable but it does not seem to matter because essentially what goes on in the House seems to reduce itself to some kind of procedural game-playing where ordinary common sense does not operate any longer.
Deputy Kelly in his speech yesterday — some of which I found interesting but a large amount of which I did not think was — made one interesting point in relation to the Supreme Court. It was that since the Constitution of 1937 had given power to the Supreme Court under Article 26 to decide on the constitutionality, or otherwise, of Bills referred to it by the President and since the Supreme Court was only set up in 1961 and what existed between 1937 and 1961 was the Supreme Court of Justice, the reference by the President of three Bills between 1937 and 1961 to the Supreme Court of Justice was not a valid reference. Therefore, whatever decision the Supreme Court of Justice made between 1937 and 1961 under the Article was not binding. Deputy Kelly held that up as an example of nit-picking, where common sense was not allowed to prevail. If he was here today and witnessed what is going on — he or I cannot criticise the Supreme Court for technicalities, nit-picking or anything else — he would see that it is an abuse of procedure as if this type of procedural point-scoring is more important than the fundamental law of the country or of an amendment to the fundamental treaties of the European Economic Community. I feel very sad that this is the response to these matters and these problems by the collective elected representatives of the people of Ireland.
I have a great deal of sympathy with much of what Deputy O'Malley has been saying but that sympathy is tempered with a certain amusement because for a Deputy who has spent so much time giving out about what he regards as procedural point-scoring I am amazed at the attempt by his party to throw the baby out with the bath water yesterday in voting against the Second Stage of the Bill, thereby, if successful, ensuring that there would be no debate of any kind on Committee Stage. What we are facing is a difficulty in debating on Committee Stage a Bill which is very narrow in its focus. This difficulty which results from the very narrowness of its focus I would think — this is recognised not only on this side of the House but on the other side — arises because the Government have chosen to take what is by far too easy a way out of this problem. They have concentrated their focus on only one corner of the problem and, in doing so, have without any good reason created a continuing need for further action to deal with the real problem that faces us.
I am not sure if the choice by the Government of such a narrow approach to this was deliberately designed to bring about the result we have this afternoon in that we may discuss a whole series of amendments but not vote on them. That would be attributing far too Machiavellian an intent to the Government in the approach they are taking. The Government have been plain straightforward too pusillanimous in the approach they are adopting and not at all Machiavellian. Had they been a little smarter in their approach we might be having a debate that is more relevant to the real problem we face than the one we have today.
The reasons the Government have given for not bringing forward a wider amendment are very shaky and insubstantial. One of the reasons that has been advanced is that if we were to have a debate on the basis of a wider amendment that would do the whole job we might provoke a whole series of irrelevant issues; we might see brought into the debate a whole series of red herrings which would make it more difficult to ensure the type of result we want. I do not believe that is the case not because the wider amendment has any particular sagacity about it but because I firmly believe — the evidence of the last couple of days shows this very clearly — that we are going to have all those red herrings in any event. We are going to have the weirdest combination of forces in opposition to this amendment as we would have had to a wider amendment that would bring in all types of irrelevant issues like abortion, which we have seen already, neutrality, which has also been brought up, undefined questions of "morals" whatever that is taken to mean in the quarters from which that type of talk comes, and a whole series of other issues that do not have anything to do with the Single European Act or the further development of the closer union of the peoples of Europe that was set out as one of the original objectives of the founders of the European Community. We will see that no matter what kind of amendment is brought forward.
If we were to concentrate our attention on the type of amendment that will deal with the whole problem we would at least have the satisfaction of knowing that as we labour over the next few weeks and deal with these irrelevancies as they come, and they must be dealt with, we would at least have the satisfaction of knowing that we have done the whole job. We will go through a process of public debate between now and 26 May which will result in our dealing with one part of the problem. We will have all the irrelevancies and difficulties, irritations and alarms which are involved in dealing with all these irrelevant issues. The people will make the correct decision and at the end of the day, on 27 May, we will have to look at the result and say we have dealt with part of the problem.
During the course of the next couple of months — I take the Taoiseach at his word about this — we will have to decide on how to deal with the rest of the problem. The fundamental issue involved is who conducts foreign policy in this country and under what conditions.
It is my contention that amendment No. 9 is one that deals with the whole problem. It covers all the issues that need to be covered. It covers very broadly the same kind of ground set out in the amendments put forward by Deputy O'Malley and his colleagues but, taking no excessive pride of paternity in it, I would have to say that it covers them all more succinctly, completely and a shade more eloquently than the amendments put down by the Progressive Democrates.
Except they were ruled out of order.
It is grand to hear Deputy Kennedy talking to me about these things being ruled out of order. I hope her mood is not excessively conditioned by the poor quality of her accommodation in here about which she has been complaining in the public press lately. I congratulate her on apparently having left a profession behind but still keeping more than a toe in it. The amendments have been ruled out of order because of the narrow focus the Government have taken in the Bill. Deputy Kennedy will agree with me that this is a wrong approach on the part of the Government.
My amendment deals with the issues that arise and with what the limits of the jurisdiction of our courts should be. The limits we have put forward are what we all understood to be in operation and to be applicable since 1937. It also sets out who actually carries on foreign policy and who is involved in it — the executive arm of the State, the Government. It makes it clear that in carrying out foreign policy, the Government must have regard to the proper role of the Dáil in the process in that all the actions of the Government in that area are subject to scrutiny by Dáil Éireann. In saying that, I do not wish to suggest that the way in which that scrutiny is now exercised and has been exercised up to now is to be regarded as adequate. That is not the case.
The last phrase of the amendment states that the Government in the exercise of their prerogatives in relation to foreign policy, subject to the supervision of Dáil Éireann, must have due regard to the individual rights set out in Articles 40-44 of the Constitution.
The amendment is not a vastly complex one, nor is the somewhat less elegant set of suggestions put forward by the Progressive Democrats. Neither took a great deal of head scratching to bring about. Both required an amount of common sense and a clear vision of how foreign policy should be conducted in order to put them together. Neither would have been beyond the wit of the Government to put forward. Neither would require a couple of months' discussion between the leaders of the parties to define the parameters and set out the wording. It is a matter which requires nothing more than the application of common sense and taking into account the properties of Government action in relation to scrutiny by the Dáil and the respect of individual rights under the Constitution. We have before us one formula which deals with the issue with a certain economy and eloquence of language and another that was a little more awkward but they both go in the same direction and deal with the problems which face us. They make it clear beyond doubt who conducts foreign policy, how that organ conducts foreign policy and what supervision it is subject to by the Dáil and the courts. Those are the only questions that need to be resolved. It is a great pity that the Government should not decide to move in this direction.
It would appear that at the end of this debate we will have to make up our minds on whether we go with the very narrow formula proposed by the Government. We cannot decide not to go with it since it is the only option on offer. I have no doubt about what way I will go. I will go with the only option that is on offer, narrow, timorous and incomplete as it is because if we cannot do the whole job then we must do the immediate part of it. I do so with a great regret that the Government did not have the gumption to do the whole job properly as they could have done by taking the course we have set out in amendment No. 9. Between now and 26 May, I and my colleagues in Fine Gael will make it clear that we fully support the ratification of the Single European Act. I do not intend between the end of this week and 26 May to spend any time in public involving myself in recriminations against the Government for having been so timorous and taking the narrow approach they have taken. That would not be relevant to the question to be put to the people. When we engage in further discussions on what needs to be done, I will be pressing along the lines of amendment No. 9 for action which will deal with the remaining parts of the problem which will still be outstanding at that stage.
I conclude on this, because I may be moved to make some comments on some of the other amendments if and when they are moved, although I believe that some of the amenders have moved rather than having the amendments moved. The policy of thefauteuíl vide seems to have spread into this House from other parts of the Community. I may have a number of things to say about those other amendments when we come to them. Some of them I consider to be unwise while others are very largely irrelevant to the issues before us. When we come to the end of the debate I will be taking whatever action I can to deal even incompletely with this problem. I want to put it on the record of the House that I am very glad we could have had even this debate as a result of a suggestion I made this morning. I thank the Taoiseach for going along with that suggestion. I commend him for that but regret that he did not take a different view and admit in any real sense that there should be a wider debate which might lead us to a wiser conclusion, and a conclusion that would allow us to present the full picture to the people and save all our time because inevitably we will have to come back to this House at a future stage — I hope it is not too far in the future — to deal with the rest of the problem. I do not think there is any great complexity in what we need to do about this. I would expect that very quickly after 26 May that issue would be addressed and that the common sense of the leaders of the parties, particularly the common sense expressed by this side of the House, would be brought to bear on the problem so that we could proceed quickly to resolve the rest of the difficulties. I do not want to see any substantial period during which it can be held that there is any uncertainty about undertakings we have given already to other countries all around the world in different treaties and in different agreements. I do not want there to be any feeling, for an unnecessarily long period, among other countries, not only in the European Communities but elsewhere, that we cannot be entirely relied on to live up to the commitments we have given and to effect the undertakings we have freely entered into, because we believed it was in the interests of the Irish people to do so. That kind of uncertainty would not alone cause anxiety and a certain degree of frustration among other countries but would itself do damage to some of the commitments and undertakings we have entered into in the past and take away a little bit from the firmness with which we can pursue the policies we believe our Government should pursue in a whole range of areas, to give only one example. If there is that kind of uncertainty about our ability here within the framework of our Constitution to live up to these commitments, I think our ability to pursuade other countries to live up to commitments they may have given either in the framework of the United Nations or in other frameworks will be diminished. If that is the case we will have lost part of the benefit we have not thought anything like enough about in this House. We will have lost part of the benefit of our non-aligned stance on some of the issues we will have to confront and deal with as members of the European, not to speak of the world, community of nations.
May I say at the outset that it is a source of great personal sadness to me as a new Deputy to see this important debate reduced to the level of farce. I consider it a privilege to have the opportunity of speaking here but, regrettably, that privilege has been treated with scorn by a large number of Deputies here this morning. This has been brought about by what I can only describe as the mutual admiration society of Fianna Fáil and Fine Gael that we have seen here today, and the collusion that is going on here. I feel that their attitude and their interests would be better served by sending a member each to the World Snooker Championships, because that would seem to be what they would prefer instead of being here for this debate on the Tenth Amendment of the Constitution Bill.
I would like to deal with our amendments. It is quite clear where the Progressive Democrats stand on this issue, irrespective of some of the meanderings of Deputy Birmingham this morning. We ourselves have no doubt that we are 100 per cent behind the Single European Act, but the result of the Crotty judgment is that the issue is far more fundamental to this country today and is not just about the Single European Act. In my opinion that covers about 10 per cent of the questions that have been raised by that judgment and the problem is that the Government have failed to face up to the problem created by the judgment. I am at a loss, and I am amazed that the Minister for Foreign Affairs or indeed any Minister in Government would admit on the one hand, as he said yesterday evening, that there are other serious complications with regard to the Crotty judgment and that the Government must be given considerable time to look at these. Having said that, would he not agree that the ability of his Department to function in all its integrity and authority is automatically impinged on? I cannot understand why he would for six months, six weeks, one day, or even one moment allow that situation to continue because it is quite obvious that the Department of Foreign Affairs are unable to function to the full extent of their ability and that their integrity is called into question.
The Minister's excuse, which can be perceived only as a ridiculous excuse, for taking a narrow view of this amendment was that he did not consider — and I am sure the Irish people will be very interested in this — that the people had the ability to grasp and understand all of the implications of this judgment. I take this as a very condescending attitude towards the Irish people. I am quite sure that the issues discussed during the last few days in this House will be understood by the majority of the people and that they will be able to grasp all the details over the coming weeks. Whether the Minister likes it or not, the discussion will range over the issues of neutrality and the implications of the Crotty judgment, and also over the question of why the Government did not have the courage to broaden this amendment and restore to this House the position which up to a week or two ago the people generally and the Members of this House thought existed. I might refer to those Deputies who said in this House yesterday evening that this matter was not seriously questioned by this party or indeed by other parties. The simple reason for that is that most people believed there was no possible threat to the ratification of the Single European Act. We know to our cost today that has occurred. Even the Taoiseach in his opening speech said that he and many other senior Members of this House greeted the judgment with great surprise. Are we forever to come up with what is the terminal Irish solution to an Irish problem by failing to face up to the realities of the Crotty judgment? Why do we have to wait six months or six weeks or whatever length of time to put all of the issues which can be put quite simply to the people in this referendum? That has been the fundamental argument in this debate in the past three days. We have the toing and froing of the Fine Gael Party. Though I have been in this House for practically most of the past three days, I do not understand what they are trying to say. On the one hand they are saying that the amendment should be broadened and on the other hand they are saying that it is quite in order to keep that amendment the way it is. I do not understand this approach. It demeans their position and it shows quite clearly who the real Opposition are, because in my opinion words alone are not enough to emphasise the point. Action must go hand in hand with them.
We in the PDs have highlighted during the last few days the fundamental arguments in this debate in a calm and constructive manner. The Government have failed miserably and I warn them that they will rue this day some short weeks or months ahead for their actions in this matter, and so will Fine Gael. Make no mistake about it, there will be challenges, as has already been intimated, and where do we all go from there? Do we come back again in the middle of summer to have the same debate as we have had over the past three days, to raise the same issues that the Government feel the people cannot handle on this occasion but will have to handle on a future occasion because we will be forced to put them to the people?
In our role as European we have a great interdependence with Europe. Our future economic stability and growth depend on our behaviour in Europe. There is no reason why this country should not play a far stronger role in that context, and that is why the amendments we have proposed are so important. The amendment proposed by the Government will not allow us to do that in future. It will keep us shackled to what has happened up to now and will create grave and serious doubts about previous treaties and bilateral agreements entered into in Europe. I remind Deputy Birmingham that, whereas he might consider the ratification of the European Patents Convention a trivial matter, to a great number of people in this country it could be a serious matter that we are not a party to that convention because jobs could be put on the line and people put out of work. The Progressive Democrats do not consider that a trivial matter.
All of the items raised on the Act and the questions asked are of equal importance to many people throughout the country. Why have we always to be in the background, dragged along into situations? Because of that dragging along it appears that there is something wrong with what we are involved in and the impression goes abroad that we are incapable of dealing with realities or being adult enough to be upstanding in the observance of our duties and our responsibilities to our friends throughout Europe and throughout the world. Many people have said here in the past two or three days that there is some danger that we will lose our identity in all of this. If Ireland fails to play a positive role in Europe and forever seeks to hold Europe to ransom by failing to accept the responsibilities full membership brings, the very values we are talking about that we as a people hold dear will become meaningless. After all, it is the perception of other people that gives real meaning and purpose to our ideals, and we are prepared to disregard all of that in what has been going on here in the past few days.
In this House today amendments well thought out and worked hard on have been totally ruled out of order by the collusion and ganging up of Fine Gael and Fianna Fáil. I am amazed that they could behave in such a manner on such a serious issue. We will end up at 4 p.m. faced with one amendment and, as Deputy O'Malley indicated, left with no choice. Naturally, we are 100 per cent behind the Single European Act, but this leaves grave questions to be answered, not alone because of the implications of the Crotty judgment, but with regard to how this House is going to behave. Are Standing Orders to be thrown out the window and are we to be faced with such situations day in and day out in the future in this Dáil? Are the minority to be squeezed out and denied the voice that the people gave them a mandate to use here? I represent a constituency in Waterford, and what I say here in terms of the amendment I am trying to speak to is meaningless. Because of the resolution of this House this morning I am incapable of putting that amendment to the House and having it voted upon. That is a disgrace and it should be brought to the people's attention.
This afternoon we will make it absolutely clear to anyone who might doubt it that we are 100 per cent behind the Single European Act, but we will wait for the repercussions of this Government's action with the help they have had from Fine Gael in this matter, and mind you, there will be repercussions.
If it had not been for the initiative taken by the leader of my party this morning Deputy Cullen would not have been in a position to make the remarks he has just made. He was able to argue for a broader approach which would allow the Government to play a proper role in foreign policy precisely because of the action taken by Deputy Dukes this morning to which there was a response from the Taoiseach.
The Minister has been having a rather easy time of it and perhaps I can invite him to rejoin the debate, as it were. I ask him to comment on my compromise suggestion that we safeguard today all existing treaties and leave for another day how we conduct our foreign policy in the future. Perhaps he will tell the House what problems he sees which prevent that route being adopted.
I should like to join with Deputy Birmingham in asking the Minister two or three questions. I welcome the fact that urgency is being given by the Government to the idea of an all party approach to Article 29. That in large measure is a result of the contributions made by the Opposition parties in the House. However, I am concerned about the standing of some legislation and other treaties between now and the time the Government and all parties get around to holding another referendum which we believe will be necessary.
Let me ask the Minister what legal advice the Government have on the standing and validity of the Anglo-Irish Agreement now arising out of the Supreme Court decision and given the fact that a case had already commenced in the courts before Christmas and will be coming up within the next two months as I understand it. Secondly, what legal advice have the Government sought — as I presume they have — and got on the necessity to safeguard all previous amendments to the Treaty of Rome which have been effective since 1973 and matters like the European Patents Convention and the Convention on Judgments to prevent the necessity for holding a referendum on every occasion in the future in regard to the Treaty of Rome?
The last two queries were dealt with, I think, fairly comprehensively by me this morning. The viewpoint put just now and in particular the questions by Deputy Kennedy accentuate the point put during my contribution this morning which is that, by reason of the Supreme Court judgment and in particular the Walsh and Henchy judgments — I have the Henchy judgment here in front of me — issues have been raised in particular with regard to the status of Article 6vis-à-vis the rest of the Constitution and in particular Article 29. Issues have been raised of a very deep complex kind and as practising lawyers Deputy McDowell and Deputy Birmingham will be aware of this.
The issues raised can be put into three broad categories. First we have existing treaties, Community, multilateral, UN and bilateral. That is broadly one category of past international arrangements. Then we have potential arrangements, particularly the whole area of treaties and agreements of the future, and we have future European legislation. Finally, we have what we talked about this morning at some length and was referred to by Deputy McDowell, the fundamental, central position of Article 29 in the Constitution in relation to international relations. That Article considered in isolation is excellently drafted. It places the executive function of the State in connection with its external relations on the democratically elected Government. That is specific and there is no ambiguity about it. In particular the phraseology in Article 29.4.1º and 2º. Article 29 goes on to say:
Every international agreement to which the State becomes a party shall be laid before Dáil Éireann.
There is no question about Article 29 considered on its own. That gives the necessary authority to the democratically elected Government in the whole area of international and external relations subject to examination by Dáil Éireann. Where the legal difficulty arises, and that is quite apparent from the Henchy judgment, is in regard to Article 6 ——
The Minister is admitting——
—— which appears from the Henchy interpretation to allocate responsibility in this area to the judicial organs of the State. Article 6 is specifically invoked by Judge Henchy as a governing Article in relation to the very explicit Article 29 which has heretofore been regarded, by all sensible, practical people, as standing on its own and being quite explicit in giving power to the Executive and the Legislature to manage foreign affairs and international relations on behalf of the people. This is not a facile matter, as suggested by Deputy Cullen, that can be dismissed by way of the preparation of an amendment to govern all existing treaties, potential treaties and the dangers involved in following the intrusion of the judicial organ of State into the executive and legislative organs of the State as would appear to be the case from the Henchy judgment which places Article 6 in a governing positionvis-à-vis Article 29.
We drafted one such amendment.
The problem with the Deputy's amendment is that it is not clear whether any of the amendments would meet the difficulty I mentioned in regard to the Henchy judgment. That is a real legal concern. We do not want to draft further amendments albeit wider amendments that may get into judicial difficulties with the Supreme Court in the future. This particular problem was discussed here last December. We advised the Government at the time on the dangers implicit in running too far ahead along this road. I mention this to show that it is our considered opinion, as a Government — and we have considered this in detail and in depth — that the sensible thing to do is to get the Single European Act issue settled as expeditiously and as unambiguously as possible to lessen the confusion and to make it clear to the people that there is a single net issue for them to decide.
We must get down on an all-party basis or whatever method of working we adopt, with the best legal advice to devise ways and means of re-establishing the pre-eminence which was intended to be given, under Article 29, to the democratic Government and the Parliament of the State. That must be the position in regard to existing treaties, future treaties and arrangements within the EC and, indeed, the future statusvis-à-vis the Supreme Court, which is another aspect. That whole area is not simplistic, it is quite complex. It would be very easy to adopt other amendments, some of which have been suggested here after adopting these amendments that there was still a legal or constitutional doubt arising out of a potential interpretation of a Fine Gael amendment, a Progressive Democrat amendment or some other broader amendment that might be devised in the Supreme Court and one could find oneself back, at the behest of Mr. Crotty.
Taking all those matters into consideration our decision was to keep it tight and precise and without any ambiguity so that not alone would it be plain to the people what we were doing but that in the national interest we would ratify the Single European Act as quickly as possible. We can do it only via the referendum process by asking the people, and doing it in that way we finally make it very unlikely that a measure of this kind, decided upon by the people and immediately ratified by the State, can in any way be subjected to a wrong interpretation from the Supreme Court or any other judicial authority. Keeping it tight and precise serves a number of purposes. It makes it virtually unassailable in the courts and unconfusing as far as the public are concerned and we get the matter despatched as soon as possible. Subsequently we can look into the difficult and sophisticated legal situation to which I have referred and seek to have some comprehensive amendment to cover it. I hope we are able to do it in that way rather than have it in regard to each successive legislative instrument. We do not want to have referenda every six months.
The Deputy is planning two for this year.
At least we can get down as quickly as possible and seek to devise a comprehensive amendment that will cover the whole area I am speaking about. That is an eminently sane approach. There is nothing more to it than I have said and I have sought to say it as clearly and as explicitly as possible.
Could I ask the Tánaiste and Minister for Foreign Affairs if he could answer the second part of my question? The first answer was very worthwhile. I asked if, arising out of the Supreme Court judgment in the Crotty case, the Government had taken any advice on the standing of the Anglo-Irish Agreement? Is there a doubt cast over the Anglo-Irish Agreement? Has the Government taken advice on the matter?
It is a matter which is under continuing examination by the Government but that is incorporated in what I said regarding bilateral arrangements which obviously will have to be examined as well. That is only one of a number of legal instruments which have been referred to here — the Patents Convention, the Convention on Judgments, the Anglo-Irish Accord, our UN membership, and all the conventions we have signed by virtue of UN membership. All of these will have to be examined one by one and looked at thoroughly in the light of this judgment.
But they had not been examined by the Government before they came into the House with this form of constitutional amendment?
Of course. Every single treaty and amendment is now being looked at in the light of that judgment, naturally.
After the presentation of this Bill, they are now to be looked at? I am trying to ask the Minister a slightly different question. By the time the Government presented the Tenth Amendment of the Constitution Bill to the Dáil two days ago had they inquired from their legal advisers whether a constitutional doubt now hangs over the Anglo-Irish Agreement arising out of the Crotty judgment? Do the Government know whether it casts a doubt?
The Crotty judgment has raised numerous issues. As I said, every single bilateral and multilateral agreement that we have entered into must be examined in the light of that judgment.
I hope, a Leas-Cheann Comhairle, that you will not find me guilty of repetition. I want to put it in a slightly different way from my earlier question to the Minister because I did not get, to my mind, a satisfactory answer to that. It seems that there were four approaches open to the Government. First, there was the approach on which they eventually decided, which was the narrowest possible to deal with the Single European Act only. Secondly, there was the option of linking the Single European Act with one or more treaties about which they had particular doubts, or about which particular doubts had been expressed, that the State may ratify the Single European Act, the United Nations Charter and the Anglo-Irish Agreement and so on. Thirdly, the next broadest approach was to say that everything that had been ratified by the State prior to the Crotty judgment was valid. Fourthly, and to my mind the best approach, was to restore to the Government their traditional role in foreign affairs.
I can see how the Minister makes an argument that the fourth approach is a matter of complexity, having regard to the reasoning of the Supreme Court. I do not agree with the argument because, while the reasoning of the Supreme Court is complex, it is, in fact, quite easy to redress. I see, however, how he can make that point with regard to the broadest of the approaches. I fail to see how that has any relevance to all the agreements which had been entered into by the Government prior to the Crotty judgment. All those agreements were negotiated by the Government in good faith. When required, they came to this House and were debated and ratified. In other cases they were laid before this House. What can be the difficulty in putting the status of each of those beyond doubt at this stage, just as we are now putting beyond doubt the status of the Single European Act? That I do not understand.
The Minister also said one of the matters that concerned him was whether any of the amendments achieved what they set out to achieve, whether they were effective in disposing of the introduction of Article 6 into this whole sphere. Let me draw his attention to the wording in the Fine Gael amendment, which very clearly is effective. It is effective because it addresses what is central to this, the jurisdiction of the courts. It indicates that the courts will not have jurisdiction to question the validity of international agreements ratified or acceded to by the State save on the two grounds about which I have been talking, the procedural ground and the question of the constitutional rights of the individual.
That is clearly broad enough to exclude the testing of validity, whether having regard to Article 6, or 5, or 1, or any other Article of the Constitution. It confines the function of the court in the area of international relations to those two questions, to consider whether the proper procedure of ratification was followed and whether or not there are implications for the constitutional rights of the individual. I should like to hear the Minister tell the House how he or his advisers can be in any doubt whatever that that achieves what it sets out to achieve.
Going back to my compromise proposal, consistently the argument against doing what the Labour Party, the Progressive Democrats and we have been trying to do has been that it takes longer and is divisive. How can that be put in relation to all the treaties that have already been debated and ratified in this House? Whatever doubts may arise as to how people are going to conduct their affairs in the future, it cannot be a source of division that we ratify treaties that have already been subject to proper procedures in this House. I repeat my request to the Minister that he should zero in on this specific suggestion of taking the opportunity to put beyond doubt this afternoon, or at least to set in being the process to put beyond doubt on 26 May, the Single European Act but also every other treaty ratified in due form before today. What possible difficulty is there in that?
I am going to read a paragraph from the Henchy judgment to show where the problem lies. I thought Deputies might have addressed themselves to this. On page seven of this judgment it is stated:
The ultimate source and limits of the Government's powers in the conduct of foreign relations are to be found in Art 6.1 of the Constitution:
The Deputy will be familiar with the wording of that. That concept, pushed to its logical conclusion, would find all amendments put down here in difficulty and would find all existing treaties in difficulty if one follows a certain line of argument from adopting that principle. That is why I say this is a far more complex situation than I think is fully appreciated, that the full force of the judgments, in particular the Henchy judgment and the Walsh judgment — Mr. Justice Walsh has adumbrated this point of view before about the traditional——
His last paragraph.
——about the judicial factor as an organ of Government. It is there in other judgements also, either implicitly or explicitly. This is a minefield in regard to legal and constitutional principles. Faced with that, it was the Government's clear duty to keep the amendment simple, straightforward, absolutely clear, precise and unambiguous. In that way, one can get a decision from the people on this very important issue of public policy, that we adhere as soon as possible to the Single European Act.
We must then apply what legal, political and constitutional brains are available within our society on an all party basis to devising constitutional and/or statutory improvements that will establish the original spirit and intention of Article 29, which in my view is a very well drafted Article. If it was not impeded, infringed or impinged upon by other Articles, other sentiments and other philosophies, viewed on its own, it is an excellent Article and incorporates precisely what everybody here would envisage, giving the democratically elected Government of Dáil Éireann the executive power of the State in regard to international issues. That is what we have to get back to and re-establish.
I am saying very seriously that we cannot, in a limited period of time, cover completely what we should like to see covered — all the aspects that would seek to achieve that objective, the reestablishment of Article 29 to the central position. In order to achieve that, it is much more complex legal examination that is required than could be envisaged before, for instance, the end of May. It is of paramount importance that we move quickly on the Single European Act and then move into the very detailed examinations I have mentioned in regard to the overall implications of the judgments in the Crotty case.
I take issue with what the Minister has just said in relation to the wording of Article 29.4.3º. I concur with his views that Article 29 as originally intended was supposed to be a complete statement of independence in the foreign policy sphere for the Government and the Dáil. As Mr. de Valera articulated so forcefully, it was originally conceived by him to put the conduct of foreign policy on to a very liberal and independent basis, free from the shackles of constitutional control as far as possible. Both the Minister and I heard a recording of Mr. de Valera's voice stating precisely that in a recent radio programme on the issue. I hope Deputy Birmingham does not consider me ungracious or sniping, but one of the real problems with Article 29 is the phraseology of its third paragraph. What I would term the FitzGerald amendment in 1972 took out the words "consequent on our membership" and put in the phrase "necessitated by obligations of membership" and that has caused a good deal of the chaos which has subsequently ensued.
To be fair to Deputy FitzGerald, he understood what he was doing then. Deputy FitzGerald was making a very restrictive proposal by suggesting to the Taoiseach, then Deputy Lynch, that the words "consequent on" were flexible and would allow the Government and the Dáil to move on to further policy areas other than those originally contemplated by the 1972 Treaty. The curious thing is that the record of this House of 25 January 1972 shows that Deputy FitzGerald understood then that there was a possibility in the future that a foreign policy treaty would be negotiated between the parties to the EC Treaties and he explicitly said that the reason he was putting in and urging the Government to put the necessitated obligations phraseology into Article 29.4.3º was to prevent such a treaty from being entered into because, in his view, that would be a matter which should properly require a referendum.
I know that the political roundabout in its many revolutions puts people on the opposite sides of arguments which they supported perhaps ten or 15 years ago and that Deputy FitzGerald now finds himself arguing against the case which the Supreme Court made out for him eventually. Deputy FitzGerald actually foresaw the Walsh/Henchy/Hederman thinking and encouraged it to be so, and secured the agreement of the Taoiseach of the day to an amendment in order to necessitate and copperfasten the kind of judgment which emerged from the Supreme Court now. It is not worth our while running away from that. If the price of Fine Gael support then for the European Communities amendment was to accede to this tightening of the wording, the then Taoiseach, Deputy Lynch, was willing to pay that price to secure all party agreement.
It is an extraordinary irony that the Opposition parties here today are asking for the exact opposite. The Progressive Democrats are asking the Government to undo the FitzGerald amendment and to bring into Article 29.4.3º this element of flexibility. Doubtless, Deputy FitzGerald in all good faith thought that to confine and constrict the power of this Chamber and the Government was a good thing at that time and that it was a good thing to phrase the amendment to the Constitution that was then effected so as to require a referendum if there was a foreign policy treaty. Whatever the rights or wrongs of Deputy FitzGerald's thinking then, and obviously his thinking has undergone a change because he certainly was not giving out the same message the other night, and whatever the rights or wrongs of the Government acceding to the siren voices for unity that were coming from Fine Gael at the time, and making this restrictive amendment, we are now in the position that Article 29.4.3.º with its necessitated obligations formula unduly restricts the development of the European Communities.
With respect to Deputy Birmingham's amendment, which is clever, it does not deal with this necessitated obligations thing at all. It leaves it high and dry and for instance the European Patents Convention, which is not a necessitated obligation and which purports to give powers to the West German courts which have a binding effect on Irish citizens' injunctive powers, is clearly unconstitutional. We cannot ratify that convention precisely because it is not a necessitated obligation but it is quite clearly consequent on our membership of the European Community. We would be able to ratify it if the original wording had been left in place and if Fine Gael had not exacted the restriction as the price of support for the proposal to amend the Constitution then.
The Minister did not at any stage reply to my challenge to prove me wrong and did not vindicate his own views. If the necessitated obligations formula is construed on its fact, we are still left with the position that in 1973 this House decided to amend the European Communities Act. It is worth stating that in 1972 it was provided that the implementation of European regulations in Irish law would be done by statute and that this House would legislate for the implementation of European regulations, directives and so on. In 1973 it was decided that that was a cumbersome thing and that it should be done by ministerial order and an amending Act was passed in 1973 to that effect.
Going back to the original Treaties, the exact manner in which they implemented such directives and regulations was left in our discretion and therefore it is a curious fact, but legally undeniable, that it cannot be argued that in exercising a discretion to do it by regulation rather than by legislation we were not carrying out a necessitated obligation under the treaty. One cannot say if one chooses one mode of legislation rather than another, when one is given a choice, that the choice made is a necessitated choice so the consequence of all that is that a number of other judgments of the Supreme Court — City View Press and AnCO, and a few others — established clearly that ministerial legislation, quite apart from European law, is unconstitutional and if it is not a necessitated obligation, the 1973 Act has to stand on its own like any other domestic legislation.
We are still left with the position, unfortunately, that however attractive Article 29 seems to the Minister in its drafting, it invalidates the 1973 procedure of implementing European law in this State. The consequence of that is that undoubtedly, somebody somewhere, especially when he reads it as a fourpage passage in a text book, will dream up an action to knock down some European regulation made under the 1973 Act. It is bound to suit somebody to do so. Perhaps some lorry driver who objects to his tachograph being the subject matter of a criminal prosecution will knock the regulation and the Act with it if it is in his interest so to do. As long as the necessitated obligations formula is retained in Article 29.4.3º that procedure is clearly constitutionally invalid and vulnerable.
I am suggesting to the Minister that we are now afforded an opportunity to recast Article 29.4.3º. Even accepting for one minute the Minister's logic, that is, let us get this Single European Act out of the way, then roll up our constitutional, legal and jurisprudentialist sleeves, sit down together in a more amicable atmosphere than prevailed in this House this morning, let us sit down and put our collective wisdom — if that is what we have — to the task of redrawing the Articles of the Constitution with a view to taking the Crotty decision into account, is it seriously contended that we will put another referendum to the people this year?
Supposing everybody here, in a spirit of national co-operation, putting the national interest first, sits down around a table, supposing we are advised at great length by the best constitutional lawyers in the land, some of them in this House and some outside it, supposing they all come, in their collective wisdom, to a formula which is undeniably apposite to meet the implications of the Crotty decision on every front, is the Minister seriously suggesting that in the autumn of this year the people are to be dragged to the polls again to implement that change in the Constitution?
I do not know what kind of momentum the political process has in Ireland but I do not believe that the people's patience would remain in place if they were called to the polls twice in one year to deal with the same decision of the Supreme Court, on a second occasion, to have to do it properly, in a thoughtful and comprehensive way. I do not believe that will happen. Although the Minister is articulating a spirit of goodwill here about the possibility of getting the thing right in a reflective manner, doing it as a matter of urgency — presumably urgency means within a year even within the slow state of Irish politics — I question seriously whether there will be sufficient political will on the part of the people opposite, indeed on the part of the people at large, to put together a second referendum. Is it seriously contended that the business of the country is to be interrupted for a second time this year, with another referendum process to be set in train, when on that occasion every head banger of every kind will be able to parade his or her — and probably more "her" than "his"— particular fears about the implications of this?
I apologise for my sexist colleague.
I am talking about the Senator designate, Dr. McAleese. I seriously question whether the Government would undergo this dreadful baptism of fire in the autumn, taking on every cracked interest group in the country for the second time in a year in a referendum to meet the same judgment. I am driven to the conclusion — and I do not think I am being unduly cynical about the whole situation — that the Minister, in effect, is trying to buy our agreement to the passage of this Bill, in its present form, with a very vague promise on which even he must have grave doubts about the political will to implement. I am driven to the sad conclusion that what we are being offered here is an inducement to keep quiet, to assent to the passage of this Bill in its present form, which is a totally worthless promise by the Minister. To coin a phrase, there is no problem about a second referendum, when there most undoubtedly is.
Are we not codding ourselves completely if we think that process is going to take place in this year? If it is not going to be done this year, the urgency about which the Minister spoke comes into very sharp focus. If I am correct about the 1973 Act, if Deputy Kennedy is correct about the Anglo-Irish Agreement, if my remarks the other day about the European Patents Convention are correct, and we are not going to have an amendment which meets them, if the 1973 Act falls to the ground, or if the Hillsborough Agreement is struck down I say, with all due respect, the Minister will be responsible personally for that having happened.
That would mean that the Minister will have asked us not to avail of this opportunity to ensure it does not happen, the Minister will have asked us to take, doubtless, his earnestly held view that the people will be brought to the polls twice in one year. For one reason or another, the Minister will not have delivered on the second part of that commitment. We will then be in the position that the Hillsborough Agreement will be smashed, not by the Orange resistance, not by Unionist intransigence, not by perfidious Albion but by lazy and incompetent Hibernia. That is the reality.
I am asking the Minister if he is taking personal responsibility for the Anglo-Irish Agreement, for the 1973 Act, for the European Patents Convention and the myriad of other things that could go wrong if he does not deliver on his promise here today? Is he taking personal responsibility for all those things? I suggest he is making the choice. He is giving us this blandishment; he is suggesting to us that we should hang fire now and he will deliver a second referendum in a year. The only question that really occurs to me is who is codding whom on this issue? If all of those things come to pass — I hope they do not but I can well foresee that they will — does the Minister not accept, and I want him to reply to this, that it will be his personal responsibility, having introduced this Bill, having offered these blandishments to us, if the Anglo-Irish Agreement is struck down by the courts for want of any safeguarding action on his part?
The argument has drifted off into all sorts of by-ways. My fundamental point remains the same. The very arguments that Deputy McDowell has just used accentuate the point I have been putting. I see the difficulties in connection with the 1973 Act, as to whether the regulations are necessitated by the position of regulations as against statute law and the court interpretation in regard to them. The more I hear Deputy McDowell and Deputy Birmingham the more I am convinced that we are right. If one goes right down the whole range of bilateral, multilateral. Community, United Nations legislation, statutory legislation, regulatory orders under statute and so on, one realises the enormity of the situation.
Does one propose to do anything about it?
The very enormity of the situation means that, here and now, we are not going to draft an amendment to put to the people before the end of May that would meet that comprehensive and very complex situation, particularly having regard to the Henchy judgment I read earlier and aspects of it in regard to Article 6 of the Constitution and in regard to the whole legal philosophy of his colleague, Mr. Justice Walsh. Both have given judgments that raise a wide range of matters, the constitutional efficacy of which was brought into question. If we rush through an amendment, however well meaning, and I accept the well meaning of everybody who has put down amendments, which can still be struck down by the Supreme Court that could advance propositions such as those in the Walsh judgment and the Henchy judgment, our last position would be worse than our first. If we seek to rush into what we may think is a wide, general, omnibus type of constitutional amendment that seems good to all of us here and if it is struck down in the Supreme Court, we will appear very foolish. The Henchy judgment advances the proposition that, "The ultimate source and limits of the Government's powers in the conduct of foreign relations are to be found in Article 6.1 of the Constitution". That runs directly counter to the very specific powers given to the democratic Government of the State under Article 29 and given to Dáil Éireann as being the body that supervises such Government decisions.
On the one hand, we have Article 29, which is specific, as framed originally by Mr. de Valera but subsequently amended badly by Deputy FitzGerald. Before the "necessitated by" formulation was introduced, that was a classical article giving full executive power to the democratic Government of the State and to the Dáil but it has been put in jeopardy by an interpretation in the Henchy and Walsh judgments in regard to Article 6 that was never held by the courts heretofore. As I said earlier, there were a number of hints both explicit and implicit,obiter dicta remarks, made by Mr. Justice Walsh that would indicate that his mind is moving very strongly in the direction that the Supreme Court is in some way part of the organs of the State in the area of foreign policy. That is the finding of Mr. Justice Henchy. He quoted from Article 6.1 that: “all powers of Government, legislative, executive and judicial, derive, under God, from the people...”. That is largely aspirational. Under Mr. Justice Henchy's interpretation of Article 6 the Judiciary is raised to a level of participation in foreign affairs that was certainly not envisaged in Article 29 which gives that authority to the Government and to the Dáil.
Fortunately, we are rescued from this dilemma due to the referendum process. There is a process in a later article which enables the people to decide. On this matter the people should be given clear, positive and unambiguous information on which to make their decision as to whether the Single European Act is to be ratified.
Will there be a second referendum and will the Minister take responsibility for the disastrous consequences?
In regard to the further type of referendum that may be necessary to meet all the points in the judgment on the Crotty case, it will require very detailed examination and investigation. Anybody who looks at that in a facile or simplistic way is talking nonsense. That sort of investigation and examination would take a reasonable length of time and would not enable us to ratify the Single European Act as quickly as possible, which we want to do before the end of May to ensure our full participation with other member states in the Community.
When can we expect the second referendum?
What I have just said, I also said it in two earlier contributions, makes a lot of sense and is very logical. Any other approach would involve enormous risks. We owe it to our partners in the Community not to run risks in regard to this matter. We must get the full legal jurisprudential, constitutional brains of all the political parties together on the preparation of what needs to be done to put our Constitution right in this very vital area. Much goodwill has been generated already by the party leaders meeting the Taoiseach and exchanging views.
It will be dissipated——
What was achieved by that?
Let us not reduce the level of discussion. Deputy O'Malley. Let us keep it at a reasonable level.
There is only an hour and four minutes left in the debate.
If that level of goodwill is translated into a balanced presentation to the people in the course of the referendum we can then apply ourselves to what are undoubtedly — as this debate has shown it — very serious problems ranging across all past treaty agreements, potential treaty agreements and the relationship that exists in the area of foreign policy between the Government and the Dáilvis-á-vis the Supreme Court. These are areas of great magnitude that require and merit very close examination and attention. Let us get on with the first job first. Let us go to the people in a balanced way and present the case that Ireland should expeditiously and immediately make its decision in regard to the Single European Act so that the Government can proceed to immediate ratification. Then we can turn our minds to the other problems that very rightly concern us during this debate.
First, I wish to reassure Deputy McDowell that I would never suggest he is guilty of sniping or lacking in graciousness. What I might suggest of him is that he is pedantic and what I might accuse him of is raising hares. In particular he is raising a hare when he introduces into this debate the distinction between what he is pleased to call the Lynch formula and the FitzGerald formula. This is the debate that took place in 1972 as to whether the appropriate wording to go into the Constitution at that time was "acts consequential on our membership of the Community" or "acts necessitated by our membership of the Community". I remind him that the Chief Justice in the court judgment on the European Communities Act specifically excluded from relevance the question of necessitation.
Precisely, if it had been consequential there would have been no case.
He said it was clear and was not otherwise contended by the defendants that the ratification by the State of the Single European Act would not constitute an Act to necessitate it. Notwithstanding that, the court still went on to find the European Communities Act constitutional. The question of necessitation as distinct from merely being consequential was quite immaterial to the judgments of the court. That was true in relation to the European Communities Act and it was true in relation to the separate judgment that was delivered on Title III. In his last two interventions it seems that the Minister for Foreign Affairs has made the Opposition's case for it. He did so in terms more elaborate and more far reaching than any member of the Opposition has contended for. In his last intervention but one he quoted from the judgment of Mr. Justice Henchy and suggested that, if taken to its logical conclusion, it would put at risk every international obligation or commitment entered into by the State. Nobody on this side of the House, so far as I know, has suggested an interpretation as far reaching as that. It seems that the only agreements that might be put in doubt are those that involve a course of conduct, those that oblige the State to participate in a procedural arrangement which is unlimited in duration. If he is right about that and it is the case that the passage he quotes has far-reaching implications, just how far they stretch is perhaps a matter for debate. There are other passages from the other judgments to which I could refer. For example in page 1 of Mr. Justice Hederman's judgment a paragraph reads:
The State's organs cannot contract to exercise in a particular way or by a particular procedure, their policy making roles or in any way to fetter powers bestowed unfettered by the Constitution.
If it is the case that passages can be found in all those judgments with implications as far reaching as is now suggested by the Minister for Foreign Affairs, is there not an obvious answer to that? If it is true that there are previousdicta from Mr. Justice Walsh suggesting that the court should have a role in relation to foreign policy, is it not clear what the response should be? We should take to ourselves an amendment which puts beyond doubt that the courts do not have a function in relation to foreign policy. We should take an amendment this afternoon which reasserts what was always to be the case — that there is in existence a separation of powers and that, under that separation of powers, the conduct of foreign relations is a matter for the Government, answerable only to the Dáil. That amendment is available to the people in the form of amendment No. 9 tabled by the Leader of the Fine Gael Party.
During this debate various Opposition parties have suggested that there may be more to the Crotty judgment than simply its implications for the Single European Act. They have suggested that some particular treaties may be questionable. None of us has gone as far as the Minister for Foreign Affairs in his last two interventions. If there is a belief on the Government side that the Minister is right — and presumably there is or he would not have charge of this measure — then it is absolutely unthinkable that we should head off at 4 o'clock today leaving, in the Minister's view, every international agreement we have ever entered into in doubt, if the Supreme Court is to follow the logic of its decision.
If that is unthinkable, what should we do about it? We must confine the High Court, and on appeal the Supreme Court, to their traditional role which is simply to consider whether the constitutional rights of an individual citizen have been threatened by the actions of the Executive or the Legislature. If there is a lack of courage on the part of the Government to go the whole way, why not take a halfway measure and today put beyond doubt all the treaties we have already entered into? I do not want to be melodramatic — Deputy McDowell said personal responsibility will rest with us if certain things happen — but the Minister has told us that the logical follow on from the Supreme Court majority decision in his view is that every international obligation entered into by the State is now in doubt. We cannot leave here by 4 o'clock and pretend we do not believe that.
When this debate started the Opposition parties were asking the Government to pause and look at this measure because there might be more to it than at first appeared, but that debate has been won. Everyone accepts that there is more to this than simply the Single European Act. The Government are obviously of the view that every international obligation entered into is at risk. In those circumstances the least they must do is put beyond doubt obligations already entered into, and ideally what they must do is take this opportunity to restore the traditional approach to foreign policy, which is that it is a matter for the Government, subject to the Dáil.
The Minister is drawing our attention to the fact that there has been an emerging view that the Supreme Court had a function in relation to foreign policy. He is the first person in the course of this debate to make that suggestion. The Minister finds that inappropriate. Just about everyone on this side of the House finds it inappropriate. If that is the case, why not reassert that there is a separation of powers and what are to be Supreme Court functions? That can be done under amendment No. 9. All that is required is courage, but what this Government are lacking is the courage to do what they believe to be necessary.
There is one thing which should be said on this occasion because there does not appear to be a suitable forum to make the following remarks. One of the features of the Second Stage debate was that Members of this House exercised their perfectly legitimate and established right to query the correctness of some of the judgments delivered in the Supreme Court. I am glad we have reached the mature state where this is not regarded as an insult, impoliteness or a breach of respect which each of the three major organs of the State should have for the other.
I would like to put on the record a reflection for the Government's benefit. It is of vast importance, especially in major constitutional issues such as this, that there should be continuity of thought in the Supreme Court. In 1976 the House enacted the Law Reform Commission Bill, one of the side effects of which was to allow for the appointment of a Supreme Court Judge to be President of the Law Reform Commission and to increase the number of Supreme Court Judges from five to six. A by-product of that is that when the tenure of the Supreme Court Judge appointment to be President of the Law Reform Commission comes to an end, it can be, and is now the case, that there are six sitting members of the Supreme Court. That in itself is not a problem at first sight but it creates a problem which is worth a footnote in this debate. If there are six Supreme Court judges deciding on matters where there is obviously a division of opinion, such as this matter exposed, undoubtedly there will be speculation in any particular case as to precisely how the decision is made that the court should be composed this way rather than that way. Undoubtedly there will be legitimate comment in the press that this permutation of judges is more likely to hold with the Dáil in its collective wisdom on this issue than other combinations of judges. Then the Chief Justice will be embarrassed because there is no set procedure as to who is required to be put on a five member court.
It will always be either said or thought — and a person would not have to be of a cynical disposition to think it — that the court has been selected to meet any individual case. People will speculate, as happened here, if a different court had heard this case what the result would have been. Once that becomes part of the coinage of public thought there will be inevitably reflections expressed in this House, in the media and among the public as to the composition of any particular court on any controversial question.
I want to put on the record that I suggest it is invidious to appoint a member of the Supreme Court to be President of the Law Reform Commission without taking into account the downstream consequences of having a six member Supreme Court which is discontinuous and unpredictable from day to day in its composition and thought processes. I suggest to this Government, and to all future Governments who seek to operate this——
I am glad Deputy McDowell looked in this direction when he spoke about future Governments.
There is a future for Deputy Birmingham but whether it is a distant or near future is the question.
He might as well be a member of the Government for all the opposition he is providing.
I want to make a suggestion to this Government and to future Governments. There could be accusations of jury rigging if there is a six member Supreme Court. I urge the Government to take on board that lesson and the error made and not to put the Chief Justice in the embarrassing position in which he effectively chooses the Judiciary who deal with a particular case rather than the Government whose function it is to appoint the Judiciary and to establish the day to day composition of the Supreme Court. That is a reasonable point; it will be a source of embarrassment in the future. It is not strictlyad rem but it will not arise in any other context and should be pointed out now. There are embarrassing implications to the practice of appointing Supreme Court judges to the Law Reform Commission because it creates the difficulty that the day to day composition of the Supreme Court, which is a matter for political decision by the Government for the time being, effectively falls into the hands of the Chief Justice. No matter how bona fide he is in exercising his powers in that matter, he is bound to be open to criticism or suspicion in the exercise of his discretion.
In view of the difficulty in getting anyone to speak in this sad charade in which we are engaged——
The Minister of State to continue.
——would it not be more appropriate to use up the 50 minutes left in putting some of the amendments to the House?
Deputy O'Malley has spoken so often today that I wanted to give him another chance——
I spoke only once.
The Government's decision to put down this amendment was quite justified because, all afternoon, two eminent lawyers, Deputy McDowell and Deputy Birmingham, have been at odds with one another in regard to their own amendments. Deputy McDowell even apologised for some snide remarks which had been made——
I was not apologising.
It is further confirmation that the Government were correct to put down this amendment because if practising lawyers cannot agree on whether their amendments were valid or if they could be challenged in the courts, it is obvious that the Government were justified in their decision.
In fairness to our partners in the EC, we must pass the Single European Act. Some Members mentioned responsibility but, if the former Government had accepted the advice given to them by Fianna Fáil and the Progressive Democrats before the Act was discussed in December, we would not be here today. They would have accepted the referendum and there would have been no challenge——
(Limerick East): We would have had two referenda.
They would not take our advice but they now say it is a simple matter.
Has the Minister insight into the minds of Supreme Court judges?
The Deputies on that side of the House would not listen; their combined wisdom was such that they would not accept any advice. Deputy Noonan is laughing but he should have put more thought into the discussions at Government level. Of course there were problems and perhaps the Labour Party would not go along with Fine Gael.
(Limerick East): The Minister is lowering the tone of the debate.
Since the debate has run out of steam, would it be in order for the House to exercise its collective wisdom and adjourn until 4 o'clock as there is no longer anything at issue because of the procedures we adopted this morning?
No, the Minister of State is in possession.
The Minister is finding it difficult to keep talking.
I have no difficulty in speaking——
Only that people are heckling the Minister he would have more time to fill.
Deputy O'Malley flits in and out of this House looking for publicity in the newspapers and that is his problem. Despite the fact that a large majority in the House voted for a certain course of action this morning, Deputy O'Malley insisted on wasting time by discussing procedure which had already been decided, which would have been better spent on discussing the amendment. Deputy Dukes said the Government are only trying to solve one corner of the problem and that the Government amendment is shaky and insubstantial. The prime point at issue is the urgent necessity to ratify the Single European Act and have the instrument lodged. We should all try to settle this problem as quickly as possible and the Government amendment is the simplest way of doing so. I admit that it is narrow but it covers the point at issue. The case made by the Minister was substantiated by the fact that Deputy McDowell and Deputy Birmingham could not agree on their amendments. Deputy Dukes also said that the Fine Gael amendment was more economical and so on——
Are we having highlights of the debate now?
The Government have been proved right——
I could give an answer but I will not. It will not appear on the record that Deputy Birmingham and Deputy McDowell were nodding in agreement with what the Minister was saying——
When we nod there is no sound.
When they want to appear on the record of the House they talk about the Minister accepting personal responsibility. We had a long discourse on the validity of having the same five Supreme Court judges. The Government in their wisdom, having taken account of the legal advice given to them and the judgments, decided that they would put forward the amendment in the form in which it is now before the Dáil. I do not think that anything we have heard today has changed our minds on that. The vast bulk of people in the House aread idem in their determination that the Single European Act, which has tremendous potential for us, should be passed as quickly as possible.
The differences of opinion between practising lawyers as to how best an amendment could be formulated, the obvious problems and complexities that have arisen from the Supreme Court judgment and the length of time it would take for any Government — and as the Minister said, the combined wisdom of the legal minds both in this House and outside — to come up with a solution to the problem are all the more reason that the Government should stick to the amendment now before us and put it to the people. The commitment which this Government and the previous Government gave on behalf of the people of Ireland to having the Single European Act ratified is paramount and should be settled first. The problems which have arisen in relation to the Single European Act as a result of the Crotty judgment should be put out of the way first and then we can discuss what amendments can be put before the people at a later date, even if it is in six months' time.
In the past the people of Ireland have shown a maturity when they were asked to do so by the Dáil. I have no doubt that, whether it is in six months' or a year's time, they will again show the maturity they are capable of showing and which Deputy McDowell seems to doubt they will show.
It is all right now, the night shift has arrived.
Mr. McDowell was very sarcastic in his remarks as to whether the people of Ireland would come out and support a second referendum. He spoke about interrupting the business of the country. He and many others seem to think that the implications of this judgment are so terrible that the business of the country should certainly be interrupted. When the time comes, be it in three or six months' time, the people of Ireland will respond as they have in the past. The Government's decision during the Second Stage debate and again today to keep the amendment narrow and to keep it specifically to the point at issue — the ratification of the Single European Act — has been proved right.
I was listening to the Minister's reply. Surely it is no way to do business to have to go back to the people in six months' time. This is a time when we are asking the people of this country to make tremendous sacrifices. There are cuts in the health services and elsewhere. It is quite clear that we will be going back to the people very shortly because we all know that there is a problem with the wording of the amendment.
Nobody disagrees with the ratification of the Single European Act but there is a problem in relation to other agreements and treaties.
The Government brought out one set of words and they are not prepared to make a change in adding on or substituting a different set of words to cover other problems which we all know are there. We will look like a right collection of fools in the eyes of the electorate if we have to hold another referendum in six months' time when we know at this point that there is a problem. Leaving aside party politics and who is right and who is wrong, we now know that there is a problem as a result of the Supreme Court decision. As the Minister said, there is 95 per cent agreement in this House that the Single European Act should be passed. Surely that 95 per cent of the representatives here can go out during the course of this referendum and campaign in favour of passing the amendment to the Constitution. We represent 95 per cent of the people in the country and if we cannot persuade them to vote in favour of passing the amendment, God only knows what is happening to democracy. That issue should not be at risk because it is not as if we or the Progressive Democrats are opposing the Single European Act. For the sake of leadership and the economy why do we not roll it all into one and get it over with here and now and not crawl back in another six months and go through this whole charade again of debating another set of wording? For the life of me I cannot see why the Government do not accept the wisdom in what we are proposing.
If your party originally accepted our advice we would not be here today.
I will deal with that point in a minute. I congratulate the Minister on his appointment. I do not like being smart with new Ministers but his statement in relation to this being a problem of the last Government is absolutely absurd. I advise him not to keep repeating it because very shortly we will prove to him that it was nothing to do with our decision. It was an interpretation put by three out of five judges of the Supreme Court——
If you had gone to the people, then the court would not have given the decision it did.
——and it had nothing to do with the Act. I do not want to enter into a contest with the Minister trying to prove that the statements he has made are foolish. I stood up at 3.30 p.m. to make a last minute appeal to the Government and I cannot understand why, having listened to all the arguments and knowing they have the full support of the vast majority of the people in this House, and presumably outside, they will not add the words we have proposed to the amendment. If they want to keep in a mention of the Single European Act an addendum to it would solve the problem. We have to go out and tell the people why they have to have cuts in health services, education, local services and why we are going to impose water charges. We are now saying to the people that we are going to spend another £1 million in six months' time, perhaps asking them to ratify something else which we know now is unconstitutional. I do not see the sense in this. I appeal to the Tánaiste, the Deputy Leader of the Government, who has now come back in to the Dáil at this late hour to see——
I was here for the intelligent arguments.
——common sense and accept the need for an addendum or the amendment we have proposed.
I wish to support the simple, straightforward amendment proposed by the Government. I compliment the Minister on his clear statement of the reasons that the Government intend to propose it in that way. As a Deputy coming in here to speak for the first time on a matter affecting fundamental constitutional policy and foreign policy, I am very much aware of the interest of the people in getting a quick resolution of the doubt which has been cast over our continued membership of the Common Market by the unfortunate handling of this issue by the past Government led by Fine Gael. I join with those who have upbraided the members of the Opposition and the Government, which was supported by some members of the Opposition, for not taking the advice of Fianna Fáil when in Opposition that there was a constitutional doubt. It ill behoves any Member of this House to say, as Deputy Barrett said, that the decision of the Supreme Court was merely the decision of three out of five judges. The law is what the judges say it is.
The law was enunciated by the Supreme Court and Deputies should always speak respectfully of what emerges from the courts and in particular from the Supreme Court which is the final arbiter on constitutional matters. Long may that be the position. I take grave offence at what has been put forward by Deputy Barrett though I do not mean any personal offence towards him. I have the greatest of respect for him in other ways but I am disappointed that a Deputy who perhaps could teach a new Deputy such as I some respect and deference for the courts came out with such a facile statement with regard to what has emerged from the Supreme Court. There has been only a begrudging acknowledgement of what the Supreme Court has stated is the correct position. Behind that begrudging acknowledgement is a slight defensiveness over the very inadequate position in which the previous Government found themselves when faced with the very generous contribution of Fianna Fáil in Opposition with regard to the possible constitutional doubt on the issue of ratification of the Single European Act.
When I rose I said I would speak as a Deputy who was not particularly concerned with the legal minutiae and that I would not stand here as a practising lawyer or otherwise but as a representative of the farmers and workers in my own constituency and those of other constituencies also who have a vital interest in the doubts in relation to this issue being resolved. There are many farmers around my own area who are very concerned about their future livelihoods. In my area, too, there are thousands of workers in factories that are exporting to Europe. The livelihoods of these workers on a day to day basis, possibly to an 80 per cent degree, are dependent on our continuing membership of the EC.
I regard the urgency with which the Government are treating this issue as indicative of their anxiety to create a climate of confidence in the context of the recent budgetary provisions and also in the context of our continued involvement in the EC. There are many who do not understand the financial intricacies and complications which might arise by reason of the continued uncertainty. I am glad the Government have addressed the issue as a matter of urgency.
I do not wish to go through the various dangers in the financial sense which could arise through this uncertainty. There is the matter of the exchange rate and of the position of our foreign debt in the event of the exchange rate running badly against the IR£. These are very serious and grave matters which perhaps should not be discussed in the light of discussions relating to them giving rise to a lack of confidence. It is in the context of such an emergency that this debate has been going forward. I would have liked to have seen total unanimity for the Government's proposal because of that. It is very hard for anyone in this House to justify the amount of time this House has taken to debate, sometimes intelligently but much of the time wastefully, the various matters arising. Sometimes Members have indulged in various forms of dramatics for the purpose of publicity. That is not very respectable behaviour from a House leading the country into a referendum.
It is going to be very difficult for us to go into our constituencies to ask those who want to do the right thing for the country to support this referendum so as to ensure our continued involvement in the EC, the continuation of the many jobs in factories which are dependent on our continued involvement in the EC, and to continue the opportunities for our farmers and other sections of the community including those involved in the tourist industry. I do not want to get into generalities but I say that in the context of the recognition that we have failed in our expectations with regard to membership of the Common Market. We have missed some of the opportunities which membership offered. We missed these opportunities, very often in spite of the Common Market rather than because of it. I would temper my remarks by that general observation.
From the proposals which can be gleaned from the technicalities of the amendments tabled by the various Opposition parties, it seems that the Government would be proposing a number of choices in a Bill to amend the Constitution. There would be a proposal to amend the Constitution so as to facilitate our continued membership of the Common Market. I would like to think that that would be the fundamental proposal. If the proposals of the Opposition are taken at this time regardless of whether there is any merit in their arguments or any merit in the suspicion that there may be some doubts cast on other international treaties, it would be very misleading for the electorate to have a number of choices put to them which would include a chief or fundamental choice on whether we strengthen our links with the Common Market and save our involvement in the Common Market as proposed in the Bill. In addition, there would be a number of minor choices relating to all sorts of international agreements which would be poorly understood by the public in many instances and some of which could be used by persons or parties opposed to the passing of the referendum in its fundamental aspect in relation to the EC by way of introducing red herrings to confuse people and to suggest all sorts of reasons why they should vote against the proposals in the referendum.
For instance, I could see various people arguing rhetorically that we should not pass the referendum because we do not want to send our troops to foreign parts where they would be exposed to injury or possible death. This could be a factor at a time when there was controversy over the involvement of our troops abroad on UN missions. The electorate might be persuaded on what might be an emotive issue of the day that the referendum was not properly founded though the issue concerned might have no relation to the fundamental question before the House today. I can see that being an extreme danger in practical terms from the point of view of leading the electorate towards the making of a decision. It would be disastrous for the electorate to reject this amendment to the Constitution which is to ensure our continued participation in the EC.
I would respect the right of the electorate, democratically and proudly as a sovereign nation, to decide one way or the other. I would be very worried if the issue was clouded by all sorts of difficulties brought up from all sorts of obscure treaties of which the Irish people have hardly ever taken cognisance in their ordinary day to day lives. If this were to happen proposals put forward by able people on all sides of the House would have the effect of the solid intentions of the many other able people being misconstrued. That is a road to hell, irrespective of how good the intentions of the Opposition are. I accept that the amendments before us were put forward in good faith and, on the face of them, there are arguments in their favour. There is little use in being absolutely dismissive about them but I should like to impress on the House the danger that will arise if they are accepted.
All Members are aware of the difficulties of carrying out a house to house canvass in a referendum. I do not expect such a canvass on this occasion but it is important that we persuade the people to vote on this issue. The message must be got across in clear and simple terms. As I entered the Chamber this afternoon I heard Deputy McDowell say that some matter was not "strictlyad rem”. I do not know what that is the Irish for but he told the House that it was the function of the Government to appoint the members to the Supreme Court. He said there should not be any question of a jury-rigging type of activity in the make-up of the Supreme Court, that the Chief Justice should not be put in the invidious position of picking a panel of Supreme Court judges to decide on an issue. He felt the Government should pick the members of the Supreme Court to decide on any issue. To go slightly off the ad rem course is something I could not agree with in relation to the principle of the separation of powers. Having regard to the doctrine of separation of powers no Government, or Opposition, should be in a position to choose a panel of judges of the Supreme Court to decide an issue. That would amount to a rigging of the Supreme Court of a most dangerous kind. With great respect to Deputy McDowell, I must express my opposition to such a suggestion.
The best person to choose the panel of judges to decide on any issue in the Supreme Court is the Chief Justice or a committee of Supreme Court judges. At least that would guarantee judicial independence. I could not let that issue pass without expressing my strong views in regard to it. I would have liked the debate to have concluded within one day and the parties to have come together to put the issue clearly before the people. I regret I was not in a position to participate in the debate earlier. The Government should be congratulated on bringing the matter before the House and dealing with it as a matter or urgency. However, I regret that the debate has been so confusing. I do not think the public are impressed when they see the House arguing for days about this issue. They are not impressed by the red herrings that have been brought into the debate particularly when the House will accept the wording that was produced by the Government originally. We have heard some Members refer to referenda costing millions of pounds that will have to be held in future years, imaginary referenda, but I should like to ask those Members why they delayed the debate on this issue. What was the reason for the expense involved in recalling the House to debate the issue? Did the country not lose an opportunity by having Deputies, and the Government, taken from other business rather than participating in an academic argument in the House?
Is the Deputy suggesting that we should not debate any of these issues at all?
What was the point in taking so long to debate this issue? The public are looking for leadership from the House. I am not saying that the House should not perform its fundamentally democratic right of debating all issues but this is a time for the House to give leadership. The only party that gave such leadership in the House this week was the Government party and I congratulate the Minister for Foreign Affairs for his work in that regard.
(Limerick East): Two issues arise from the Crotty judgment. The first is whether we can accede to the Single European Act but the second issue is even more fundamental and it has to do with the separation of powers as we understood it, until the Crotty judgment, and as it was intended by the framers of our Constitution. The Supreme Court in a series of decisions, up to the Crotty decision, reaffirmed that the court did not have any business in interfering with the actions of the Executive arm of the State unless those actions breach or threaten to breach the constitutional rights of the individual. If the Supreme Court carry forward the logic of the Crotty decision and insists that it can scrutinise procedures which the Executive decide to adopt in their conduct of foreign policy the result will be a foreign policy so hampered and constrained by judicial intervention as to be a spectacle of ridicule and isolation. I concede that the Act before us, and the Schedule introduced by the Minister for Foreign Affairs, deal with the issue of the Single European Act and if and when the people in their wisdom vote “yes” in the referendum then we can continue to be full members of the European Community. However, the more fundamental issue that now arises is that of the separation of powers and the House is not dealing with that today.
Our Supreme Court over the years has become an interventionist Supreme Court and in many ways has followed the American tradition. Hitherto it has confined its role to the constitutional rights of the individual in those Articles of the Constitution, from Nos. 40 to 44, which deal with fundamental human rights. I suggest that that is the appropriate area for an interventionist Supreme Court and I would like it to continue to intervene to protect the constitutional rights of the individual. The Executive also has a role and an authority and we should stand by the powers of the Executive and restore the position between it and the Supreme Court to what we understood it to be since 1937 and to what de Valera and those who were the authors of the Constitution understood it to be.
I agree with the Minister that what he is putting before the House deals with the immediate problem out of which the judgment arose. I support him in that and will be campaigning as diligently as anyone for a yes vote in the referendum. However, the other issue is more fundamental. It is not an issue of whether we are full members of the UN or accede to the patents treaty or are full participants in the GATT or whether any treaty or agreement will fall as a result of the decision in the Crotty case but rather of the separation of powers between the Executive and the Judiciary. We must restore the position to what we thought it was before this case arose. Our amendment seeks to do that.
We do not cast aspersions on the courts when we say that no court shall have jurisdiction to question the validity of any international agreement. We are simply taking the language already in the Constitution and drawing a line between the functions of the court and those of the Executive. We are saying the Executive has an authority and a role and that the court has also. The court has two functions in the area of foreign policy. One is under Article 29 and it is to establish whether the due procedure has been followed under the Constitution. Secondly, it has a role to protect the constitutional rights of the individual. If any agreement, accord or treaty interferes with or undermines an individual's rights that individual has the right to go to the court and be vindicated. That is where the line should be drawn and that is why we are only doing half a job today.
We are making it possible for the people to enable us to ratify the Single European Act but we are not restoring the balance between the Supreme Court and the Executive to the point where it should be, where we thought it was and wish it to be. We must do that or the Executive will fall into contempt or, more likely, the court will.
There has been speculation in the House already that one Act or agreement might stand or fall depending on the composition of the court. We have already had speculation that if the Chief Justice assigned one set of judges rather than another in the Supreme Court we might have had a different decision.
That is speculation.
(Limerick East): To speculate like that is to bring the court into contempt. The only way to safeguard the Supreme Court and the Executive is to frame an amendment which sets out the balance of power and the traditional separation of powers between the Executive and the courts. I know the Minister accepts what I am saying. I accept his intent and goodwill in bringing forward the Schedule to the Bill. I will say for him what I think he cannot say himself: he thinks it is politically more astute to narrow the issue because by doing so he may get a bigger yes vote. It may be politically but not legally or constitutionally more astute to so do.
We all know the way the vote will go today. I should like a commitment from the Minister to the effect that we will have a further referendum to deal with the fundamental issue of the separation of powers before we go through the division lobbies at 4 o'clock.
May I say something?
I am calling the Minister for Agriculture and Food.
What we are endeavouring to do as the Minister said is to enable the Single European Act to be ratified. There are very broad issues such as those referred to by Deputy Noonan. I was not here for Deputy McDowell's contribution but I gather from Deputies Noonan and Abbott's reference to it the kind of contribution he made.
On a point of order, this is outrageous. I have been misquoted twice by Deputies who did not even hear what I said. Deputy Abbott clearly misunderstood what he heard on the intercom. I said the diametrically opposite to what he quoted me as saying and now I am being capilloried by another lawyer who is coming in here to pontificate. I emphatically want the record of the House to show that Deputy Abbott's views are wrong.
The Minister without interruption, please.
(Limerick East): I quoted the Deputy correctly.
Please do not attack me.
Any contribution made by the Progressive Democrats at this stage——
I hope this is not the way you behave in the Law Library.
——is well in excess of the contributions they made on the last occasion. While they have a belated interest in constitutional issues it is noteworthy that on the previous occasions when these issues might have been discussed the contribution from them was nil. Now they are raising issues of a kind which only serve to confuse.
There are very immediate matters to be dealt with at the Council of Ministers. I will be involved in one of them in the coming weeks. If we extend the argument into a range of areas we will not be able to deal with matters which may arise at the Council of Ministers such as the farm prices issue. I do not suggest that we should suspend judgment but we have a duty to correct a mistake if it is made and not leave our competence at the Council in question. If our competence was in question then not only our farmers but the people generally would pay the price. We should not be forced to put ourselves at a disadvantage at this point.
On a point of information surely I should be allowed to indicate that what Deputy Abbott said——
The Deputy had already done that. He has already protested about the matter.
I am protesting a second time.
We are not obliged to hold this referendum. The implication of what Deputy Abbot said, and he is only reiterating what others have said, is that our continued membership is in question, That is totally inaccurate, misleading and untrue. Our continued membership is not in question in this referendum and no amount of talk will make it so.
That is very debatable.
May I say this as well? It has been said that we are only doing half our job in this House. Thanks be to God and thanks to past generations we have a Supreme Court and a Constitution which you people are about to dismantle.
(Limerick East): Thanks be to God we have a Government.
Mark that down well, Deputy Noonan is thanking God that we have a Government, meaning Fianna Fáil. So now we have a Fine Gael Government.
Mark you, Deputy Blaney is very supportive of the Supreme Court.
As it is now 4 o'clock I am required to put the following question in accordance with the resolution of the Dáil of 22 April and the order of the House today. The question is that the Tenth Amendment of the Constitution Bill, 1987, is hereby agreed to in Committee and is reported to the House without amendment and Fourth Stage is hereby completed and the Bill is hereby passed, and that the Referendum (Amendment) Bill, 1987, is hereby agreed to in Committee and is reported to the House without amendment and Fourth Stage is hereby completed and the Bill is hereby passed.
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- Carey, Donal.
- Clohessy, Peadar.
- Collins, Gerard.
- Conaghan, Hugh.
- Connaughton, Paul.
- Connolly, Ger.
- Cooney, Patrick Mark.
- Cosgrave, Michael Joe.
- Coughlan, Mary T.
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- (Limerick West).
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