Skip to main content
Normal View

Seanad Éireann debate -
Wednesday, 18 Nov 2009

Vol. 198 No. 5

Defence (Miscellaneous Provisions) Bill 2009: Committee and Remaining Stages.

The business of this House is run in a most chaotic and disordered fashion. We have again revised the Order of Business and a Bill is going through all Stages without notice. There was supposed to be a gap. It is deplorable the way Members on all sides are being treated. It is wrong and I wish to register my objection. I will not call a vote at this point because that would be disruptive. I am glad flexibility was given to the Minister to enable him to complete his reply on Second Stage. We have much work to do in this House and it is not helpful when business is so chaotically ordered.

The Acting Leader put an amendment to the House to extend the time to complete the Bill.

It is bad parliamentary practice.

An Cathaoirleach: The amendment to the Order of Business was agreed to.

Section 1 agreed to.

Amendments Nos. 1 to 3, inclusive, are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 1:

In page 3, subsection (1), line 36, to delete "Dáil Éireann" and substitute "both Houses of the Oireachtas".

I had not realised the Minister had written extensively to Seanad Éireann until Senator Bradford pointed it out. We must pass this legislation to provide for the security and betterment of the Defences Forces when they go overseas and to ensure they have proper training and the best equipment. However, if we participate in a project, whether a European Defence Agency one or permanent structured co-operation one, that it does not have to come to this House for approval is peculiar to say the least. We are dealing with the primary legislation but if we participate in a project, it need only go before the Dáil.

I hope the Minister accepts this amendment in order that Seanad Éireann as well as Dáil Éireann is notified if the Government makes a decision. There is no reason it could not go to Seanad Éireann at the same time. A number of Senators are nominated by Defence Forces' unions to run for election to the Seanad. There is a direct link between this House and the Defence Forces. I urge the Minister to accept these amendments.

I will be interested in the Minister's reply. I echo Senator Burke's sentiments, in particular as somebody who receives a nomination from the Defence Forces. As I said earlier, I would not be here if I did not. The Minister will be heartened by today's debate and the number of Senators showing interest in it. That has always been the way in regard to his Ministry. It is heartening for those of us on this side of the House to see Fine Gael table such an amendment, in particular in light of its leader's comments a few weeks ago. Obviously, Seanad Éireann has a future. If participation in a project must go before the Dáil, why should the Seanad not be involved too?

I support the amendment in principle. It is the very point I raised on Second Stage. The triple lock mechanism does not include Seanad Éireann. If there was a method to provide for consultation with Seanad Éireann, that would be very welcome. The reason I did not table an amendment was that I was advised there was a constitutional prohibition of some kind. If a referendum of some sort is required for reform of the Seanad, which I do not believe would be necessary, then this is something that should be contemplated by the Government, that is, to include the Upper House of Parliament in these very important matters. I understand there is a constitutional prohibition but the Minister, along with his advisers, may be able to find some mechanism for at least consultation with Seanad Éireann. That is very important.

These are vital matters and could be matters of life and death involving Irish citizens risking their lives. Seanad Éireann certainly has a role to play in this. It might have a voice which would be of use. Although we do not have a role in this matter, I have been contacted by a member of the Defence Forces whose material was anonymous. He is very concerned about the state of readiness, equipment and investment in the Army. It is very difficult to raise these issues at this point because the country is in such economic difficulties. I would not be able to urge them strongly. However, it is significant. Previously, I have been contacted about various military matters and to neuter Seanad Éireann in this way in the 21st century is absurd.

I support the amendments. It is very important Seanad Éireann is consulted on such important matters. We made several comments on safety issues in Chad in debates in the House and we were proved right on several of them. In regard to the aside from Senator Feeney, I assure her Fine Gael will work as usual to ensure Seanad Éireann works in a proper manner as long as it is in being. We will do everything possible to improve the institution as long as it is here.

The effect of the three amendments would be to require the approval of both Houses of the Oireachtas in respect of any decision to participate in an EDA project or programme or in a permanent structured co-operation one. Much as I would like to accept the amendments, my advice is that I cannot. The proposal that any such decision would require the approval of both Houses was considered by the Government in some detail during the discussions on this Bill. It was rejected by the Government, which had access to the advice of the Attorney General, on the basis that it was incompatible with the provisions of the Constitution in regard to the role of Dáil Éireann in defence matters and the provisions of the existing Defence Acts. Under the Constitution a declaration of war is a function reserved to Dáil Éireann alone. Seanad Éireann has no role in the matter. In the Defence (Amendment)(No. 2) Act 1960, as amended, decisions regarding the deployment of the Defence Forces on UN-mandated overseas peace support operations is reserved to Dáil Éireann alone where such approval is required. Consistent with the provisions of the Constitution in regard to a declaration of war, Seanad Éireann has no role in the decision process regarding the overseas deployment of the Defence Forces. Against that background, it was felt to be entirely inappropriate that a decision to participate in an EDA project or programme or to participate in permanent structured co-operation, a decision of much lesser significance than a declaration of war, or a decision to deploy troops on a peace support operation, would require the approval of both Houses of the Oireachtas.

Decisions on the EDA or permanent structured co-operation cannot have a higher decision threshold than a decision in respect of a declaration of war or the overseas deployment of Defence Forces personnel. Therefore, I am compelled to reject these amendments on the basis of proportionality, compatibility with the Constitution in the Defence Acts and on the basis that the matter has already been considered and rejected by Government.

However, I point out that while there is no requirement for the Seanad to approve Ireland's participation in any of these missions, there is nothing to prevent it from debating it, asking questions about it, etc. I am advised that is what happened in regard to the deployment of troops to Chad. The world does not end on the day the Government takes a decision to deploy troops. It is an ongoing situation. As Minister for Defence and having been very much involved with the Chad operation, I know many of the suggestions and comments made in this House in regard to the Chad mission were extremely useful to us and, as has been said by Senator Cummins and others, extremely valid.

My initial response is far be it for me to go against the advice of the Attorney General. The Finance Bill has to come before the Seanad and if amendments to it would pose a charge on the Exchequer, they would be ruled out of order, but the amendments to this Bill have not been ruled out of order. Therefore, I find the Minister's response peculiar. The Attorney General's advice appeared to suggest the amendments I tabled should have been ruled out of order, but they were not. The Minister has the Attorney General's advice in regard to what I propose. As Senator Cummins said, we had a debate in this House on the Defence Forces before our troops were sent to Chad and a number of important matters in regard to the mission were raised, which the Government took into account at that time. I would like to hear the comments of other Senators on this amendment before I might put the question.

It comes as a considerable relief to myself and I am sure to other Members of the House that the Leader of the House, Senator Donie Cassidy, is not in a position to declare war.

We are dealing with amendment No. 1 to section 2.

I am aware of that. That was what the Minister said. I am simply taking him up on that and emphasising the point.

It is curious that an amendment in my name was ruled out of order on the basis that it was outside the scope of the Bill, whereas the Fine Gael amendments, although apparently unconstitutional, were not ruled out of order and were permitted to be discussed. That appears to be all of a piece with the chaos that we have here today.

I understand Article 29 of the Constitution comes into play here and perhaps the Minister could confirm that. Even though we are galloping ahead, perhaps an amendment could be tabled on Report Stage. I will happily collaborate with my Fine Gael colleagues or perhaps the Minister will table an amendment. I am happy to table one stating that "the Government shall consult with Seanad Éireann". That does not require the approval of the House but it would enshrine in legislation what apparently is already the practice of the Government. The Minister might comment on that because he has been generous in his comments about the useful role of Seanad Éireann in discussions, for example, about sending troops to Chad. He instanced that as a matter where, although it was a requirement that there should be approval by the Seanad, at the same time useful advice had been given. The Minister has already said that consultation with the Seanad was useful. Will he bring forward an amendment, which would take only a few minutes to prepare, which enshrines in legislation the existing practice to ensure it does not conflict with anything in the Constitution or in Government policy? I strongly urge the Government to take that on board.

On the analogy drawn by a distinguished colleague on the Fine Gael benches, Senator Paddy Burke, the Leas-Chathaoirleach, with regard to the Finance Bill, I might slightly cavil with what he said. They are not amendments. We are not allowed to table amendments; we are allowed to put recommendations. If an amendment to the Constitution is considered, that should be something that should be examined by Government. If we want to strengthen the role of Seanad Éireann, first, it should be required that we express a clear view, and perhaps even to the point of approval, in respect of military adventures of various kinds, and, second, why on earth should we not be entrusted with some degree of financial responsibility? We have a number of very distinguished people, particularly on the Independent benches, who have commented widely, most of it regrettably outside this House, in the newspapers and on radio and television because Members do not have the authority to do it here.

There are several Members — Senators Quinn and Ross. Would it not be useful for Senators Ross and Quinn to be in a position to comment directly? Is it a farce that we can make moltaí, which I understand is the Irish for recommendations, but we cannot make amendments?

My final point is that we could not conceivably make a bigger balls of the economy than the present crowd have done.

That is unparliamentary language.

That is not relevant and it is unparliamentary language.

In that case, I will replace the word "balls" with the word "bags".

The Senator has said enough. I call Senator Cummins.

Why does the Senator not use the Irish word "liathróidí"?

I call Senator Cummins to proceed without interruption. I want to proceed with this Bill.

I hope we will not make a bags of these amendments. The Minister mentioned the advice of the Attorney General in regard to going to war. I do not believe we have any intention of going to war. Would the advice in regard to peacekeeping be different from that in regard to going to war? Would a different clause apply in regard to peacekeeping duties, which is what we are speaking about in this case? If the Minister is prepared, as Senator Norris has proposed, to table an amendment on Report Stage providing for consultation with the Seanad in this respect, we would go along with that. We want to co-operate. Otherwise, we will take our chances and vote on the amendment on Committee Stage.

Before the Minister replies, I would like him to comment on one brief point. I believe there is a defect in his logic because he said that since we were not permitted a role in the major and most serious matter of declaring war, we are therefore debarred from having a role in a minor matter. I do not see the logic in that. I would have thought that it would be appropriate perhaps if we were untrustworthy, but we could surely be trusted with even the lesser task. I do not follow the Minister's logic, although I am sure a man of his intellectual agility will manufacture one.

Flattery will get the Senator everywhere. A copy of the Constitution has been handed to me. The relevant article is Article 28.3.1°. Whatever about the Finance Bill, Article 28.3.1° of the Constitution states: "War shall not be declared and the State shall not participate in any war save with the assent of Dáil Éireann". The article goes on to deal with what happens in the case of actual invasion and states the Government may take the appropriate action and call the Dáil together as quickly as possible. This is the only area of policy where there is such a provision in the Constitution. Elsewhere, the Seanad is involved to a greater or lesser degree. We did not seek formal advice but we discussed the matter at Cabinet and, as I understand it, the view of the Attorney General appears to be that if one could go to war with the consent of one House of the Oireachtas, namely the Lower House, then for something less serious, such as participation in an EDA project or in permanent structured co-operation, it would be illogical to have to surmount the higher barrier of requiring approval of both Houses of the Oireachtas. This is the reasoning.

I believe the Attorney General is incorrect in his view. I will tell the House precisely why and I can substantiate it. The Attorney General is relying on the absence of a requirement; he is not relying on a prohibition. I call on the Minister to take back to the Attorney General the undoubted fact that the 1937 Constitution is an organic entity. It did not stop on the day it was signed into law in 1937. As has been demonstrated in serial fashion by many litigants, including myself, it contains what have been described in textbooks as unenumerated rights. In other words, the door is by no means closed on this House. The Attorney General is wrong.

We extended the sitting until 2.30 p.m. but we have passed that time. I am obliged to get the consent of the House to continue or else we must adjourn until after Private Members' time.

Will this allow the Minister if he so agrees to introduce an amendment on Report Stage?

I propose an extension of the sitting until 2.45 p.m.

Is that agreed? Agreed.

I support Senator Norris. We should introduce an amendment on Report Stage, even if it is to change the need to consult from a war situation to that of a peacekeeping capacity. There is no question about it; we are not going to war. The missions under discussion are peacekeeping missions and I urge the Minister to accept that. I will withdraw the amendment in favour of the words of Senator Norris if the Minister will accept them.

It is unlikely for such an amendment to be tabled in time for Report Stage. It would have to go back to——

If it would help the Cathaoirleach, will the Minister indicate if there is any possibility of it? If not, the matter is finished but it would be good if there were such a possibility, even if it meant coming back for ten minutes or so at the end of the sitting. It would show the Seanad is doing its duty and there can be no possible conflict with Government policy or existing practice.

Whatever about the divergence of views on the Constitution between the Attorney General and Senator Norris, I must proceed with the Attorney General's view.

I understand that.

There is a second point. Under the Defence (Amendment) (No. 2) Act 1960, the deployment of troops overseas requires only the consent of Dáil Éireann. The deployment of troops would be regarded as a more serious matter than simply getting involved in a particular EDA project and the same argument applies in this case. Even before the amendment was acceptable in any case and even without the constitutional argument, we would have to amend the Defence (Amendment) Act 1960 first. Otherwise, the situation would be totally illogical.

Can I assist the Minister? Although the first four letters of consent and consult are the same, they have different——

The Minister wishes to complete his reply.

I am operating on the basis of the advice I have. There is a legislative problem as well. The 1960 Act only requires the Dáil to approve the deployment of troops overseas. If the Dáil alone can authorise the deployment of troops overseas, how could there be a situation in which there was a requirement involving both Houses of the Oireachtas for engagement in some very minor EDA project relating to forced protection, the type of uniforms, etc.?

There is no requirement. It is called consultation.

I cannot accept a legal obligation to consult. It is the practice now to bring these matters to the Seanad and, indeed, the Seanad can initiate such matters. I assure the House that as long as I remain in this job that situation will continue to pertain.

The Minister might not be in the position for much longer.

If the Government is re-elected at the next election it will continue to be our policy and the matter will not arise if the Senator's party is elected into government because the Seanad will not be here.

Is the amendment being pressed?

The Minister has avoided the idea of consultation. He referred to consent but there is a very significant difference between the two. Obviously, the Minister will not accept the amendment or even a revised amendment. However, will he give an undertaking to the House that the matter could be explored again with a view to including Seanad Éireann formally in a consultation process before the next such Bill comes and so that it could be included?

Yes. We will look at it.

Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 27; Níl, 22.

  • Boyle, Dan.
  • Brady, Martin.
  • Butler, Larry.
  • Callely, Ivor.
  • Carty, John.
  • Cassidy, Donie.
  • Corrigan, Maria.
  • Daly, Mark.
  • Ellis, John.
  • Feeney, Geraldine.
  • Glynn, Camillus.
  • Hanafin, John.
  • Keaveney, Cecilia.
  • Leyden, Terry.
  • MacSharry, Marc.
  • McDonald, Lisa.
  • Ó Domhnaill, Brian.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Donovan, Denis.
  • O’Malley, Fiona.
  • O’Sullivan, Ned.
  • O’Toole, Joe.
  • Phelan, Kieran.
  • Walsh, Jim.
  • White, Mary M.
  • Wilson, Diarmuid.


  • Bacik, Ivana.
  • Bradford, Paul.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Cannon, Ciaran.
  • Coffey, Paudie.
  • Cummins, Maurice.
  • Donohoe, Paschal.
  • Fitzgerald, Frances.
  • Hannigan, Dominic.
  • Healy Eames, Fidelma.
  • McCarthy, Michael.
  • McFadden, Nicky.
  • Mullen, Rónán.
  • Norris, David.
  • O’Reilly, Joe.
  • Phelan, John Paul.
  • Quinn, Feargal.
  • Regan, Eugene.
  • Ryan, Brendan.
  • Twomey, Liam.
  • White, Alex.
Tellers: Tá, Senators Camillus Glynn and Diarmuid Wilson; Níl, Senators Paudie Coffey and Maurice Cummins.
Question declared carried.
Amendment declared lost.

I call the Leader.

I propose to extend this debate until 3 p.m.

Is that agreed? Agreed.

Amendment No. 1a has been ruled out of order as it is outside the scope of the Bill.

Amendment No. 1a not moved.
Question proposed: "That section 2 stand part of the Bill."

I received the usual courteous note from the Cathaoirleach indicating that amendment No. 1a had been ruled out of order on the basis that it was outside the scope of the Bill. It is difficult for me to understand how it is, as it seems to be very much part of the general considerations. The European Defence Agency is the central element of the Bill; therefore, it remains very obscure to me how a vital matter, on which I emphasise I received clear undertakings from the Minister for Foreign Affairs, Deputy Martin, remains outside the scope of the Bill. Is the Cathaoirleach in a position to advise me from where this direction came? Of course, I accept the wisdom of his experience and the views of the Attorney General, but I ask whether this view came from the Department, the staff of the House or the Attorney General? As a result of the very chaotic ordering of business today, I only entered the amendment 25 minutes ago; therefore, I do not know how wide or serious the consultation was. This highlights the great defects of railroading legislation through in this astonishing way with such extraordinary speed. I do not believe it allows time to engage in proper professional consultation or receive advice.

According to precedent, I do not want my decisions to be questioned——

I am not questioning the Cathaoirleach, rather I am asking from where the direction came.

I believe my ruling is being questioned. If it could have been allowed, it would have been. It is as simple as that.

Question put and declared carried.
Amendment No. 2 not moved.
Section 3 agreed to.
Section 4 agreed to.
Amendment No. 3 not moved.
Title agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."

Are there any defence areas in which we have experience, expertise or better technology than other countries that we can promote to other European countries?

Generally, we are not as advanced as the major European countries in matters of defence, but we have much to teach others on interacting with local populations when abroad in keeping the peace. I do not know whether this can be formalised.

I thank the Minister for coming to the House. I am delighted the Bill has had such a speedy passage through Seanad Éireann.

I wish the Minister well with the Bill which is in the best interests of our troops and their safety when overseas.

I again express my appreciation to the Seanad for its constructive approach to the Bill. I also reiterate my commitment that, whether we engage in deploying troops overseas or permanent structural co-operation, I will be very happy to discuss defence matters with the Seanad at any time.

Question put and agreed to.