An Bille um an Tríú Leasú ar an mBunreacht, 1971 : Céim na Tuarascála agus na Céimeanna Deiridh. Third Amendment of the Constitution Bill, 1971: Report and Final Stages.

Tairgim leasú Uimh. 1 :

I leathanach 5, líne 32, "nó bheartas le n-ar glacadh d'aontoil sa Chomhairle Airí de na Comhphobail" a chur isteach roimh ", do chur ó bhail dlighidh",

agus

I leathanach 7 roimh "by the obligations of membership" i líne 9, "either" a chur isteach agus roimh "or prevents" i líne 10 "or by policies adopted unanimously in the Council of Ministers of the Communities" a chur isteach.

I move amendment No. 1:

In page 4, line 33, before ", do chur ó bhail dlighidh" to insert "nó bheartas le n-ar glacadh d'aontoil sa Chomhairle Airí de na Comhphobail"

and

In page 6, line 9, before "by the obligations of membership" to insert "either" and in line 10 before "or prevents" to insert "or by policies adopted unanimously in the Council of Ministers of the Communities".

On the last day, arising out of discussion on the Schedule to this amendment of the Constitution Bill we were given time, which I appreciated, to think of amending the Schedule to meet some of the points which had been raised. I tried to frame an amendment and the amendment which I have framed has in fact been framed rather widely and I should like, with the leave of the House, to try to narrow it, still trying to make the point that the object of the amendment and the amendment to the amendment that I should like to make is to add another phrase to the main part of it, the part which reads "or by policies adopted unanimously in the Council of Ministers of the Communities"—to add to that: "are given a legal basis by amendment of one of the aforesaid Treaties". The whole sentence, then, if this amendment were to be accepted by the House, would read :

No provision of the Constitution invalidates laws enacted, acts done or measures adopted by the State either necessitated by the obligations of membership of the Communities or by policies adopted unanimously in the Council of Ministers of the Communities and given a legal basis by amendment of one of the aforesaid Treaties.

An Leas-Chathaoirleach

Before the Senator proceeds, does the House agree to allow the Senator to amend the amendment in that form for the purpose of discussion?

Obviously this amendment of the Constitution is of tremendous importance and every single word and comma in it would have to be considered in the greatest detail. It is one thing to discuss this, but it is another thing for the Government to accept an amendment or even to say that it could be discussed without having the advice of the Attorney General and without having it examined in depth. It is all right to have an amendment of the amendment which has been looked at by the Attorney General, but to discuss and in theory to pass it today without it having been discussed in this way would be quite impracticable.

May I speak briefly on this matter——

An Leas-Chathaoirleach

The only question before the House is whether the amendment may be amended.

And is the only view relevant to that the Government's view? Would I be holding the House up if I said a word about it?

An Leas-Chathaoirleach

No. The view of any Member is relevant if relevant.

I was going to say, with respect to Senator Robinson, that her amendment, as it stands, seems to me to make more sense than as she proposes to amend it. If she adds to this amendment the phrase: "and given legal basis by an amendment of the Treaties", in effect she is not saying anything which is not already in the Schedule. If it is in the Treaties as amended, then clearly it is something which is necessitated by the obligations of membership.

From the point of view of discussing this, if the proposers of the amendment feel that they are not carrying out their true intention in the amendment as appearing on the sheet here, I certainly would not have any objection to discussing the further proposed amendment if relevant.

In my view, to leave the amendment in the way in which I had drafted it originally and as Senator Horgan had supported it would not meet the real question that I raised and that I wanted to talk about today. I do not agree with the point made by Senator Kelly, because an amendment to the Treaties such as the amendment of the Treaties by the Treaty of Enlargement is a matter which would only be required to be laid before the House. What I am suggesting is that in the wording of the Schedule as it stands any new policies which have been entered on and which are not strictly necessitated by the obligations of membership, even if given a legal basis by treaty, may necessitate a referendum here which might not be desirable. It may necessitate a referendum here in the next year or two or three when the policies about which I have been talking—economic or monetary union or industrial policy or environmental policy—begin to be implemented and are given a juridical basis.

In the other countries it will be sufficient, when there is an amendment of one of the Treaties, for this to be laid before their Parliaments and accepted. With us, on the strict wording of the present Amendment of the Constitution Bill, it seems to me that it will require a referendum. It will require to be enacted as this is, because this type of amendment will not be necessitated by the obligation of membership. I realise that that is the substance of it, but to me the amendment of the amendment tries to meet the point and I should be grateful to the House—I appreciate the point made by Senator Eoin Ryan; I apologise for another lightning trip to Brussels in between and that is the reason why I had to do this at such a late stage —if I were allowed to talk to the amended amendment, where I could make my point, rather than to the original amendment as formulated.

Could we agree to allow the discussion to proceed on that basis and later, if necessary, take a decision on whether the amendment should be amended? I think it would be unfair to preclude Senator Robinson from making the point she wants to make.

I am in the hands of the House, but certainly I can say now that I would be against allowing this amendment because as I have said, I could not possibly agree without the Government having an opportunity of being legally advised.

But you are not against the discussion?

I have had the highest legal advice in connection with the proposed amendment and it concurs exactly with what Senator Kelly has said. It makes no difference whatsoever to the situation. So far as the Government are concerned, I want to say now that both the original amendment and the proposed new amendment would be totally unacceptable. This is, by the way, in case Senator Michael O'Higgins makes any suggestions: I am not making any effort to stifle debate on the matter. I should like to say before we start that the conclusions are that we are not going to accept either of the amendments.

I am glad the Parliamentary Secretary is sensitive to the remarks I made last week.

An Leas-Chathaoirleach

The question at the moment before the House is that permission be given to amend amendment No. 1. Is that being pressed?

Yes.

Cuireadh agus cailleadh an cheist: "Go dtabharfar cead chun leasú Uimh. a 1 a leasú."

Question "That permission be given to amend amendment No. 1" put and declared lost.

Knowing the reception that this amendment is going to get I shall try to delay the House as little as possible. I think the issue is an extremely important one and that the arguments are valid. They are less valid to this draft of the amendment because it is unduly wide. That is my problem with it, but nevertheless it is necessary that the arguments be made and I propose to make them as clearly as I can in order to explain why I wanted to introduce this amendment and why I think it is going to be necessary.

As I stated on Committee Stage, one of the great problems with this Amendment of the Constitution Bill is that it treats the three Treaties setting up the Economic Communities as the sole basis for development in the Communities, as though the Treaties were largely unimplemented. The reality is that most of the major obligations under these Treaties have already been carried out. There is a customs union and there is a common agricultural policy. Substantial advances have been made in relation to free movement of goods, free movement of persons, and so on. There are only some aspects, in relation to such matters as transport policy and right of establishment of a liberal profession, that remain to be implemented. The major dynamic activity and the major force of the Community at the moment is on what is called the borderline of these Treaties. They have gone on to consider matters such as the development of economic and monetary union, the development of an industrial policy, for which there is no strict legal basis, the development towards environmental policy in the Community sense and not, as Senator Keery said, a world-wide or United Nations conference or attitude towards environment.

As yet these new policies—industrial policy, environmental policy and economic and monetary union—have not been given a strict juridical basis. The Community is acting because there is the consent of the present members. The impetus was given at The Hague Summit in December, 1969, and this has been confirmed by the Council of Ministers. The countries are prepared to go ahead on the basis of their agreement. At the stage of finalising these policies, of implementing them by means of regulations and directives, they will be given juridical basis; they will have to be given juridical basis. This juridical basis will have to come from amendments of these Treaties.

The point I am trying to make is that this development is not necessitated by the obligations of membership. There is no necessity in the three Treaties as they stand to go on with this development. It is a dynamic process because the countries want it; it is not necessitated by the obligations of membership. Therefore, if a juridical basis is given to these policies by an amendment of the Treaties, by a new Treaty. say, in two or three years' time in 1974 or 1975, to allow legal steps to be taken in relation to economic and monetary union, to allow legal regulations in relation to the industrial policy and in relation to environmental policy, these will require a referendum here, because otherwise they are going to be in conflict with the Constitution. These regulations will not be operative here because they will not have been necessitated by the obligations of these Treaties of the Communities. The impetus is not a necessity; it is the will of the Community states. It is one thing to take something like transport policy, for which there is a solid juridical basis, and to implement that by means of regulations and to go on directives and decisions of the Community institutions. That is a straightforward development of the Community about which I have no problems or no hesitations at all.

It is quite another thing for the Community to have gone on to engage in other aspects such as industrial policy, such as even in the field of foreign policy, which will necessitate amendments of the Treaty in order to give them a strict juridicial basis and which will necessitate regulations— directives are better—which will be operative here and which will be in conflict with the Community. I think there is a great risk, if I am right in this line of reasoning, that we will find in three or four years time, when there is an amendment of the Constitution giving a juridical basis to the policies being formulated at the moment requiring a referendum, that this referendum could have very adverse effects. If there is an affirmative referendum in May of this year, which I gather is the proposed date of the referendum, it may be that after three or four years some of the ill effects of membership of the Community will have been felt and that some of the benefits of membership of the Community will not weigh against this; there could well be an adverse vote at that particular referendum and we would be in the ridiculous position that we could not carry out the obligations relating to economic and monetary union, in relation to industrial policy and in relation to environmental policy because they would be in conflict with our Constitution, because the regulations of the Communities dealing with industrial policy, dealing with environmental policy or economic and monetary union would not be law here because they would be in conflict with the Constitution; and because—and it is always going back to this key sentence —they would not be necessitated by the obligations of membership.

This phrase, to me, must be linked with the present three Treaties and only with the present three Treaties and the obligations under them. It is without doubt that the Community has gone beyond the strict obligations, that the plans for these various coordinated policies at Community level now, such as industrial policy, such as even economic and monetary union, are not arising out of a strict juridical basis.

I mentioned on Committee Stage that some commentators are of the view that economic and monetary union finds its base in Article 235, which I quote again:

If action by the Community appears necessary to achieve within the framework of the Common Market one of the objectives of the Community in cases where this Treaty has not provided for the requisite powers of action, the Council, acting by unanimous vote on a proposal of the Commission and after the Assembly has been consulted, shall enact the appropriate provisions.

Some commentators think that economic and monetary union can be based on and given juridical authority by Article 235; others think not. In relation to industrial policy and to environmental policy the suggestion has not been made that it can be based on Article 235.

These policies will, therefore, require amendments of one or all of the three Community Treaties. These amendments of the Treaties will not have been necessitated by the obligations of membership; they will have been agreed to by the states for their own wellbeing because they wanted to do this and decided to go ahead and do it. The decision came from a formula which originated in the Netherlands and which is now adopted by the member states on occasions when they are not acting as the Council of Ministers. They are acting as the heads of the Government of the Community countries agreed, not the Council of Ministers agreed, to a particular decision or policy.

I admit that until there is a juridical basis for these policies, then regulations, directives or decisions cannot be taken on the basis of them. This will be done as in the case of the fusion of the Community institutions into one Council and one Commission, the fusion of the high authority of the Coal and Steel Community and the two Commissions of the European Community and of Euratom. This was brought about by an enlarged Treaty and was adopted by the states. The problem with the amending Treaty which would give a juridical basis to these various policies is that they would not be necessitated by the obligations of the original three Treaties, but would be based on the desire and on the right of the states to do this.

The wording of this constitutional amendment has put us in a position where, in order to carry it out, we will require another referendum, not on a major issue such as political union or neutrality where it would be right to come back to the people. I am not happy with the wording of this amendment, as it would appear to givecarte blanche to the Government.

It would be wrong to draft an amendment to the Constitution when the policies already adopted in substance by the Community are being worked out. Yesterday there was a substantial further step taken on economic and monetary union. We cannot adhere to these without a new referendum in a few years time whenever the Treaties are amended to give them a juridical basis.

It is a very short-sighted and strange way of amending our Constitution which allows us to assume the full obligations of the Communities. It is a desperate attempt to conceal the full impact of entering into the Communities. The Government are unwilling to admit that it goes beyond the strict obligations of the Communities—that there is a dynamic process involving more than that.

As originally drafted, the amendment would provide the alternative of nothing in the Constitution preventing us from adopting policies either necessitated by the obligations of membership or by policies adopted unanimously in the Council of Ministers of the Communities. I was unhappy with that because policies could be adopted unanimously in the Council of Ministers which would not be acceptable to the people. This is a very open-ended amendment and I should prefer that they would be given a legal basis by amendment of the aforesaid Treaties only in the normal way in which we amend a treaty, namely, the Executive enter into the treaty and then it is laid before the Dáil.

Nobody involved in the Communities believes there will not be an amendment of the Communities to give juridical basis to the various policies being entered on during the next few years. This is the real substance of the Community. The Treaty obligations in their full sense are mostly implemented. There is little in the Treaties which has not already been carried out. We are engaged in joining a dynamic body which have gone beyond the strict terms of the Treaty and which will amend the strict terms of the Treaty in a short period in order to give juridical basis to decisions already taken in relation to these areas of economic and industrial policy and so on.

We are leaving ourselves with only the very strict construction that the Constitution will be amended by laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership. There is nothing in the Treaties to necessitate the progression towards these new policies. They are not included in this amending Bill, and, therefore, we will have to come back to amend the Constitution in relation to them. This is both unnecessary and unwise. That is why I propose this amendment.

I should like to begin by saying I agree that the issues raised by Senator Robinson are important and their importance has been recognised by the Government. I have spent a considerable number of hours taking the highest legal advice available to the Government. I should like to pay tribute to the work put into this amendment, and the other points which I will deal with in due course, by the officials who spent so much time on the various aspects of the problems raised at short notice. We recognise the importance of these matters and are not in any way trying to underrate the importance of the points raised by Senator Robinson and other Senators.

I will deal in the first instance with this amendment. Senator Robinson made the point that in some way the Government were attempting to minimise the full impact of the three Treaties—those in respect of the ECSC, Euratom and the EEC—on this country when we accede to the actual Treaties on 1st January, 1973. Nothing could be further from the truth. The Government Party have, I assume in conjunction with the main Opposition party, engaged in a comprehensive propaganda campaign to let the people know the full implications of the Treaties in relation to the country and to the various associations and individuals within the Community. We have organised conventions and meetings to explain to the people the full implications of these Treaties. I should like to refute the statement that we are trying to hide the terms or the consequences of the Treaty on the country and on the lives of our citizens.

Senator Robinson also made a point relating to amendments to the Treaties. I should like to say we are no exception in this respect. If amendments were made to the Treaty they would come into force only after they had been ratified by all of the memmer States in accordance with their constitutional procedures. That is self-explanatory and I need not dwell further on that point. I hope the Senator will accept that this meets her particular criticism.

In relation to the amendment itself, I have no doubt it was put down in good faith and with a firm belief in what was intended. However, I would refer to the passage of the Bill in the Dáil. Much of the criticism during its passage through the Dáil alleged that the proposed new subsection to be inserted in Article 29 of the Constitution was too wide in scope. The text of the subsection as finally agreed between the Government and the principal Opposition party provided for a definition of our obligations under the Treaties that would in the Government's view fully meet the needs of our membership. Having studied this amendment in relation to the Bill, I am satisfied that a widening of the scope of the subsection as proposed by the two Senators is unnecessary. Their amendment would operate in relation to the past and the future.

As regards the past, it is not necessary because the matter is fully covered by the existing text that is necessitated by the obligations of membership of the Communities. In relation to the future, any declarations, resolutions or other positions taken up by the Council will be dealt with if and when they arise, as was stated by Senator E. Ryan on the Committee Stage, either by co-operation and coordination with the Communities or, in the event of a radical departure from what we are already undertaking, by a further referendum. That would be the Government's point of view in relation to the bulk of Senator Robinson's proposed amendment.

I said at the outset that I did not wish to prevent a discussion on her amendment to her amendment but the Government find the amendment to her amendment and her amendment unacceptable. I see no reason to change that view despite her persuasive argument.

In view of the attitude of the Parliamentary Secretary there does not seem to be much point in opening a discussion on the matter. My purpose in introducing the amendment today and in trying to improve on it was to point out that the Third Amendment of the Constitution Bill is too tightly worded because the key phrase in it is that the Constitution will only be amended by laws adopted or measures enacted necessitated by the obligations of membership.

This in my view is too narrow because the Community have gone beyond Treaty obligations as such, have developed policies beyond that, by agreement of the states, and these will be formalised in the very near future in a treaty amendment. For other countries there will not be this problem but for us this treaty amendment will require a referendum. I am personally convinced of this. I hope I am wrong, because it will be very awkward if we find regulations from the amended Treaties, say in relation to industrial policy, and our courts are not convinced this was necessitated by the obligations of the original Treaties and therefore saying: "I am afraid these regulations do not operate here, do not amend our Constitution and they are invalid," and so on.

I am grateful to the House for the opportunity to express this point of view. I do not wish to take up the time of the House any further and I propose to ask leave of the House to withdraw either the amendment or the amendment to the amendment, whichever it was proposed to take.

Tarraingíodh siar an leasú faoi chead.

Amendment, by leave, withdrawn.
Tuariscíodh an Bille gan leasú.
Bill reported without amendment.
Cuireadh an cheist: "Go nglacfar an Bille chun an Breithniú Deiridh a dhéanamh air."
Question proposed: "That the Bill be received for Final Consideration".

I should like to ask the Parliamentary Secretary if he has considered the points raised here on the last occasion by Senator O'Higgins and myself and which I subsequently communicated to him privately.

Yes, I have considered them at length and I should like to thank Senator Kelly for the trouble he went to in preparing his point of view, and sending his views to me for my consideration. I have the highest legal backing for the point of view I intend to express and put on the record of this House. I assume it is in order for me to deal with these points now.

An Leas-Chathaoirleach

Yes, unless any other Senator wishes to intervene in the discussion. When the Parliamentary Secretary speaks this will conclude the debate.

My only intervention would be to ask the same question as Senator Kelly.

I shall deal with the point made by Senator O'Higgins also. The main theme set out by Senators Kelly and O'Higgins was that if there were certain undertakings given by me —the words of Senator O'Higgins would be appropriate here: "I would expect him to afford sufficient time for these points to be considered." These were the points outlined in a memorandum sent to me by Senator Kelly incorporating the point of view of Senator O'Higgins.

Senator Kelly has already put himself on record as saying he would be quite happy provided he knew these points were being considered by the legal people charged with that responsibility and that the Parliamentary Secretary would then come back here and say that that kind of consideration has been given to the arguments and that the decision was that there was no substance in them which would warrant a change or amendment to the Bill. This was a very fair and generous offer and it was accepted in the spirit in which it was intended.

I have here for the Senators a certificate from one of the legal officers stating very clearly that the Attorney-General has fully considered the points made by the Senators and considers there is no substance in them that would call for an amendment to the Bill. I should like to re-emphasise that. This is not to suggest that the points are of no substance. On the contrary, they are points of substance, but they could not be connected with an amendment of the Bill. Among the specific points made by Senators Kelly, Robinson and O'Higgins, I should like to comment on Senator Kelly's remark at columns 561 and 562 of the Seanad Official Report of 1st March:

I freely admit that this is an example drawn from the realm of fantasy, but let us suppose that a case arose here in which the Oireachtas was required to do something which directly negatived some component of the Constitution, the people's right to amend the Constitution and their exclusive power to do so could not be quoted in challenge of that Act because the people's right exists, and only exists, in Article 46 of the Constitution, and if this amendment goes through as it stands the possibility is there that even Article 46 could not be cited in challenge.

Later, Senator Kelly said:

...the Oireachtas might find themselves in the position where they could deliberately delete something from the Constitution without going to the people at all, because this amendment does not confer any protective status on Article 46, which is the amending Article of the Constitution under which we are at present operating.

The Senator, with respect, was apparently trying to argue that under the new amendment the Government could amend the Constitution by legislation. As has been previously stressed, this amendment is a once and for all amendment in relation to our obligations under the Treaties on attaining membership of the Communities. Nothing necessitated by membership will require further amendment of the Constitution, and consequently an amendment of the Constitution by law will not and cannot arise from membership or will be necessitated by membership. Again I should like to refer to Senator Kelly's contribution at column 562:

...another possibility might be to add a further subsection to the amendment to say that there are certain entrenched parts of our Constitution which even membership of the European Economic Community would call into question, one of them being the amendment procedure itself. I would add to that the fundamental rights Articles and other Articles which, even though not grouped between Articles 40 and 44, are of the fundamental rights types such as the Article which prohibits retroactive penal legislation.

I cannot imagine how this State could ever be required, by reason of its membership of the EEC, to pass retroactive penal legislation.

This point was also made on the Second Stage of the Bill when it was going through Dáil Éireann. It was made by the leader of the main Opposition party, Deputy Cosgrave. It was dealt with at some length by the Taoiseach in his reply to the debate at that time. He dealt specifically with the point made by Deputy Cosgrave. I should like to quote from the Taoiseach's reply to Deputy Cosgrave and I am sure Senator Kelly will accept it as adequate. Referring to Deputy Cosgrave, the Taoiseach said:

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

If I may add my own comment here, I should also point out that it might be giving a first and second class type of status to various Articles of the Constitution and I think that would be a bad thing.

Apart from the aspect I have just cited, it would be pointless to entrench any Articles if they areprima facie unaffected by the amendment. If on the other hand there is any question of any Article being affected, it is of course for the Supreme Court to give a decision on that point.

I should like to deal with the point made by Senator Robinson and reported at column 566 of the Seanad Official Report:

One of my fears in regard to this Bill is that not only has the precedent been followed but the precedent has been followed in purporting to amend only Article 29. We have the same vague nebulous amendment which can have implications which we have not yet fully worked out.

Apparently the only realistic course in approaching this amendment is to have it incorporated in one comprehensive amendment. It is a matter for the Supreme Court to decide to what extent, if any, specific Articles of the Constitution may be affected.

I will conclude on the point raised by Senator Kelly in his memorandum to me, mentioning the point raised by Senator O'Higgins. Senator O'Higgins at column 577, objects to the words "necessitated by" on the ground,inter alia:

...if there is abona fide choice open to the Government as to the method of implementing something that is required by the obligations of membership, can the method which they decide upon be challenged because there is another method open to them?

Senator O'Higgins will be aware that the Bill, when it was introduced in the Dáil, contained the formula "consequent on" which I would have assumed would have met the Senator's objection. The Senator's party proposed the "necessitated by" formula instead. This was accepted by the Government, as I stated in my Second Reading speech, on the basis that it did not alter the scope and purpose of the proposed amendment. I hope that, having put these points on the record of the House, the Senators will find the answers acceptable. I commend the Bill to the House.

May I ask one question? It is the very core of the points I have been making, which have not been specifically answered as to whether the legal adviser to the Government considers that the policies now being considered—economic and monetary union, industrial and environmental policies—are necessitated by the obligations of membership.

These points were dealt with at considerable length. I did not incorporate them in my reply specifically. I dealt with these points in a general fashion. I can assure the Senator that the amendment proposed by the Bill as it is before this House deals in a once and for all fashion with our obligations under the Treaty. They relate specifically to social and economic matters only. The Senator will have to accept my statement in that regard.

I undertook the last day not to pursue the matter further if the Parliamentary Secretary had the legal advisers of the State examine the points which I raised. I am grateful to him for having done this, particularly as I raised these points at a late stage. I cannot pretend to be happy with his reply. If this were Committee Stage I would be able to comment effectively on the answers which he has given but I will not hold the House up any further at this stage.

I want to ask the Parliamentary Secretary if he accepts that there was no question of my objecting to the "necessitated by" formula. I endeavoured to make it clear that I was putting these points for the purpose of clarification. I was hoping the Parliamentary Secretary would be able to knock them down and I hope he has succeeded in doing so.

I accept that. I feel that I have knocked them down. However, we are entitled to our opinions on the matter.

Cuireadh agus aontaíodh an cheist.

Question put and agreed to.
Cuireadh agus aontaíodh an cheist: "Go rithfidh an Bille anois."
Question "That the Bill do now pass", put and agreed to.
The Seanad adjourned at 3.55 p.m.sine die.